STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THE INDEPENDENT LIFE AND ) ACCIDENT INSURANCE COMPANY, )

)

Petitioner, )

)

vs. ) CASE NO. 93-7071VR

)

CLAY COUNTY, )

)

Respondent. )

)

FINAL ORDER

Pursuant to written notice a formal hearing was held in this case before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on January, 14, 1994, in Green Cove Springs, Florida.

APPEARANCES

For Petitioner: Sharon R. Parks, Esquire

M. Lynn Pappas, Esquire Pappas, Metcalf & Jenks, P.A.

200 West Forsyth Street, Suite 1400 Jacksonville, Florida 32202

For Respondent: Mark Scruby

Clay County Attorney Post Office Box 1366

Green Cove Springs, Florida 32043 STATEMENT OF THE ISSUES

Whether the Petitioner, The Independent Life and Accident Insurance Company, has demonstrated, pursuant to the Vested Rights Review Process of Clay County, Florida, that a vested rights certificate to continue development of certain real property located in Clay County should be issued by Clay County, notwithstanding the fact that part of such development will not be in accordance with the requirements of the Clay County 2001 Comprehensive Plan?

PRELIMINARY STATEMENT

On or about November 23, 1993, an Application for Vested Property Certification for Claims of Equitable Vested Rights Pursuant to Future Land Use Policy 1.8, Clay County 2001 Comprehensive Plan, (hereinafter referred to as the "Application"), was filed by Sharon R. Parks, Esquire, and M. Lynn Pappas, Esquire, on behalf of the Petitioner with the Clay County Department of Planning and Zoning. The Petitioner also filed documentation in support of the Application. On or about December 10, 1993, Clay County referred the Application and the supporting documentation to the Division of Administrative Hearings for assignment of a Hearing Officer.

Pursuant to an agreement of the parties, a hearing was held on January 14, 1994, to give the Petitioner an opportunity to offer the Application and supporting documentation into evidence and to supplement the record with additional evidence. The hearing was also held to give the Respondent, Clay County, an opportunity to be heard. Finally, the hearing was held to give the undersigned an opportunity to ask questions concerning the Application.

The hearing was conducted in accordance with the Vested Rights Review Process of Clay County, Florida, as adopted by Clay County Ordinance 92-18, as amended by Clay County Ordinances 92-22, 92-29 and 93-26. At the commencement of the hearing, the Application and documentation filed with the Application (Petitioner's exhibit 1), and a Pre-Hearing Stipulation (Petitioner's exhibit 2), were accepted into evidence. Pate Foshee and John Mahoney testified on behalf of the Petitioner. Lynn Weber, Senior Planner with Clay County, testified on behalf of Clay County. No exhibits were offered by Clay County.

Subsequent to the final hearing, the Petitioner filed two Affidavits of Pate Foshee and an Affidavit of Richard M. West. Those Affidavits have been offered into evidence without objection from the Respondent. The Affidavits are hereby accepted into evidence.

No transcript of the hearing was ordered by the parties. The Respondent 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 Recommended Order, or the proposed finding of fact has been accepted or rejected in the Appendix, which is attached hereto. Clay County did not file a proposed final order.

FINDINGS OF FACT

1. The Subject Property.

   
   

   1. During 1973, Mode, Inc., applied for and obtained approval of Planned Unit Development (hereinafter referred to as "PUD") zoning for approximately 620 acres of real property known as Ridaught Landing located on County Road 209 in Clay County.

      
      

   2. In December of 1986, Mode, Inc., sold approximately 470 acres of Ridaught Landing to Village of Fireside, Inc. This 470 acre parcel (hereinafter referred to as the "Property"), is the subject of this proceeding.

      
      

   3. Purchase money financing and construction financing for the purchase and development of the Property was provided by Barnett Bank of Jacksonville,

      N.A. (hereinafter referred to as "Barnett").

      
      

   4. In November of 1988 Barnett assigned its interest in the Property to the Petitioner simultaneously with the closing of financing by the Petitioner on the Property to Villages of Fireside, Inc.

      
      

   5. Villages of Fireside, Inc., subsequently defaulted on its indebtedness to the Petitioner and in April, 1992, the Petitioner accepted a Deed in Lieu of Foreclosure for the Property.

      
      

2. Development of the Property; Government Action Relied Upon by the Petitioner.

   1. In November of 1985, the PUD was amended. As a condition of the amendment, Clay County required that 212 acres of uplands and associated wetlands be dedicated to a homeowner's association associated with the Property. The 212 acres were to be used as preservation area and for the construction of nature walks, gazebos and recreational areas.

      
      

   2. In January of 1988 Villages of Fireside, Inc., applied for approval of a further amendment to the PUD. Among other things, approval of a separate entrance to the Property was requested. The amendment was approved. As a result of the January, 1988 amendment, the PUD properties are to be developed as two separate subdivisions, known as Ridaught Landing and the Villages of Fireside.

      
      

   3. Development of the Villages of Fireside subdivision was approved for

      1. up to 400 single-family dwelling units within the residential portion, (b)

         16 acres of recreational and private services uses, including a day-care center and a private park, and (c) the 212 acre preservation area.

         
         

   4. Villages of Fireside, Inc., submitted a plat to Clay County for the Villages of Fireside subdivision Unit One in 1988. The final plat for Unit One was approved March 22, 1988.

      
      

   5. Clay County required that the entrance to Unit One be constructed with an 80 foot right of way to accommodate the development of the entire project as approved by the PUD, as amended.

      
      

3. The Petitioner's Detrimental Reliance.

   
   

   1. In reliance upon Clay County's approval of the PUD and amendments thereto and approval of the final plat of Unit One Villages of Fireside, Inc.:

      
      

      1. Constructed master infrastructure improvements (water and sewer systems, master roads and an oversized drainage facility) for the project at a cost of approximately $706,427.00. These improvements were made between February and October of 1988.

         
         

      2. Constructed entry features for the project at a cost of approximately

         $21,465.00. These improvements were made between December of 1988 and June of 1989.

         
         

      3. Constructed a nature walk through the 212 acre preservation area at a cost of approximately $97,593.00. These improvements were made between November of 1988 and January of 1989.

      
      

   2. Upon the assignment of Barnett's interest in the Property to the Petitioner in November of 1988, financing by the Petitioner for the Property to Villages of Fireside, Inc., closed. The Petitioner, therefore, refinanced construction of improvements made by Villages of Fireside, Inc., in reliance on Clay County's approval of the PUD, with amendments, and the final plat for Unit One.

      
      

   3. The Petitioner refinanced the project in reliance upon Clay County's approval of the PUD, with amendments, and the final plat for Unit One. The Petitioner considered the PUD zoning to be true and correct at the time of refinancing and the Petitioner's loan officer believed that the Property was approved for development of at least 400 single-family residential units at the time of refinancing.

   4. In reliance on Clay County's actions, proceeds were distributed by the Petitioner for construction of the nature walk through the 212 acre preservation area. The Petitioner also released the 212 acre preservation area from the lien of its mortgage on the Property so that it could be conveyed to the homeowner's association as common area. This release was made in reliance on Clay County's actions.

      
      

4. Rights That Will Be Destroyed.

   
   

   1. Development of the Property will impact County Road 220. Pursuant to the Clay County 2001 Comprehensive Plan, there is insufficient capacity on the portion of County Road 220 that will be impacted by development of the Property to accommodate traffic projected to be generated by the Property as approved.

      
      

   2. If the Petitioner must comply with the Clay County 2001 Comprehensive Plan it will be required to delay completion of the project until County Road

      220 is improved. Such a delay will have a substantial adverse financial impact upon the Petitioner.

      
      

5. Procedural Requirements.

1. The parties stipulated that the procedural requirements of Vested Rights Review Process of Clay County, adopted by Clay County Ordinance 92-18, as amended, have been met.

   
   

   CONCLUSIONS OF LAW

   
   

   1. Jurisdiction.

      
      

2. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.65(9), Florida Statutes (1993), and Clay County Ordinance 92-18, as amended by Clay County Ordinances 92-22, 92-29 and 93-26.

   
   

   1. General Requirements of Article VIII of the Code.

      
      

3. 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).

   
   

4. 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):

   
   

   1. 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.

   
   

5. 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.

   
   

6. 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.

   
   

7. 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 an 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.

   
   

8. 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.

   
   

9. 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.

   
   

   1. Equitable Vested Rights.

      
      

10. 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:

    
    

    1. 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:

       1. has acted in good faith and in reasonable reliance;

       2. upon a valid, unexpired act or omission of the government, and

       3. 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.

    
    

    1. The Petitioner's Application.

    
    

11. 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.

    
    

12. The Petitioner has argued that it 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.

    
    

13. Based upon the evidence presented in this matter, the Petitioner relied upon the approval by Clay County of the PUD, approval by Clay County of amendments to the PUD, the imposition of conditions by Clay County concerning the 212 acre preservation area and approval by Clay County of the plat for Unit One. See Pasco County v. Tampa Development Corp., 364 So.2d 850 (Fla. 2d DCA 1978); and Andover Development Corporation v. City of New Smyrna Beach, 328 So.2d 231 (Fla. 1st DCA 1976). In good faith reliance upon Clay County's actions, the Petitioner refinanced the indebtedness associated with the development of the Property, disbursed some of the construction costs incurred by Villages of Fireside, Inc., and executed a partial release. It is therefore concluded that the first two criteria for equitable vesting have been proven: the Petitioner acted in good faith and in reasonable reliance upon a valid, unexpired act or omission of Clay County.

    
    

14. The changes in position or obligations and expenses that the Petitioner has argued it incurred in reliance upon Clay County's actions consists of refinancing costs incurred by the Petitioner, release of its lien on the 212 acre preservation area and the disbursement of $97,500.00 for construction of improvements to the preservation area.

15. Finally, the evidence proved that the Petitioner, if required to comply with the 2001 Comprehensive Plan, would be prevented from proceeding with development of the Property, suffering a significant, adverse financial impact.

    
    

16. In light of the expenditures of the Petitioner 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 proven: the Petitioner 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 the Petitioner has acquired. See Florida Companies v. Orange County, 411 So.2d 1008 (Fla. 5th DCA 1982); Jones v. U.S. Steel Credit Corporation, 382 So.2d 48 (Fla. 2d DCA 1980); and City of Gainesville v. Bishop, 174 So.2d 100 (Fla. 1st DCA 1965).

    
    

17. Based upon a review of the evidence presented at the hearing held before the undersigned on January 14, 1994, it is concluded that the Petitioner has proved that the elements of equitable vesting apply.

ORDER

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

2001 Comprehensive Plan dated August 27, 1993, and filed on behalf of The Independent Life and Accident Insurance Company is APPROVED. A Type 4 Vested Property Certificate should be issued to The Independent Life and Accident Insurance Company.

DONE and ORDERED this 14th day of February, 1994, 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 14th day of February, 1994.

APPENDIX TO FINAL ORDER, CASE NO. 93-7071VR

The Petitioner has 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. Clay County did not file a proposed final order.

The Petitioner's Proposed Findings of Fact

1. Accepted in 1-2.

2. Accepted in 3-5.

3. Accepted in 6.

4. Accepted in 7.

5. Accepted in 8.

6. Accepted in 9.

7. Accepted in 10.

8-10 Accepted in 11.

1. Accepted in 12-13.

2. Hereby accepted.

13-14 Accepted in 14.

1. Accepted in 15-16.

2. Accepted in 17..

COPIES FURNISHED:

M. Lynn Pappas, Esquire Sharon R. Parks, Esquire

200 West Forsyth Street, Suite 1400 Jacksonville, Florida 32202

Mark Scruby

Clay County Attorney Post Office Box 1366

Green Cove Springs, Florida 32043

Phil Leary, Director

Planning Zoning and Code Enforcement Clay County

Post Office Box 367

Green Cove Springs, Florida 32043-0367

Dale Wilson, Chairman

Board of County Commissioners Post Office Box 1366

Green Cove Springs, Florida 32043

Lynn A. Weber, Senior Planner Vested Rights Coordinator Clay County

Post Office Box 367

Green Cove Springs, Florida 32043-0367

NOTICE OF RIGHT TO JUDICIAL REVIEW

PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DIVISION OF ADMINISTRATIVE HEARINGS AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

Docket for Case No: 93-007071VR

Orders for Case No: 93-007071VR