STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
CARLA BRICE, )
)
Petitioner, )
)
vs. ) CASE NO. 94-0339VR
)
ALACHUA 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 March 13, 1994, in Gainesville, Florida.
APPEARANCES
For Petitioner: Leonard E. Ireland, Jr., Esquire
CLAYTON, JOHNSON, QUINCEY, IRELAND, FELDER, GADD & ROUNDTREE
Post Office Box 23939
111 Southeast 1st Avenue Gainesville, Florida 32602
For Respondent: David W. Wagner, Associate Counsel
Office of the County Attorney Post Office Box 2877 Gainesville, Florida 32602
STATEMENT OF THE ISSUES
Whether the Petitioner, Carla Brice, has demonstrated by a preponderance of the evidence that she is entitled to a vested rights certificate to develop certain real property located in Alachua County, Florida without complying with the Alachua County Comprehensive Plan?
PRELIMINARY STATEMENT
On or about June 9, 1993, an Application for Equitable and Statutory Rights Certificate (hereinafter referred to as the "Application"), was filed by Carla Brice with the Director, Alachua County Department of Growth Management, Office of Planning and Zoning. The Petitioner also filed documentation in support of the Application. On or about September 22, 1993, Alachua County denied the Application.
On September 28, 1993, the Petitioner appealed the denial of her Application. By letter dated January 18, 1994 the matter was referred by Alachua County to the Division of Administrative Hearings for assignment of a Hearing Officer.
A formal hearing was scheduled by Amended Notice of Hearing entered January 27, 1994.
The hearing was conducted in accordance with Alachua County Ordinance 92-2, and Chapter 60-Q, Florida Administrative Code. The Petitioner presented the testimony of Robert Wigglesworth, Kenneth LaPointe and David Miller. The Petitioner also offered 37 exhibits, including the deposition testimony of Roy
Miller. The Petitioner's exhibits were marked as Brice Exhibits 1 through 37 and were accepted into evidence.
The Respondent presented the testimony of Geoff Sample, Wendy Kinser, Kurt Larsen and Teresa Scott. Twelve exhibits were offered by the Respondent. The Respondent's exhibits were marked as Respondent's Exhibits A through L, and were accepted into evidence.
The parties also offered 3 exhibits as joint exhibits. The joint exhibits were accepted into evidence.
No transcript of the hearing was ordered by the parties. The parties filed proposed final 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
The Subject Property.
The property at issue in this proceeding (hereinafter referred to as "Lot 111"), consists of approximately 6 acres of real property located in Alachua County, Florida.
Lot 111 is currently owned by the Petitioner, Carla Brice.
Ms. Brice acquired Lot 111 through inheritance from her father, Carl L. Brice. Ms. Brice acquired the property in approximately January of 1993.
Early History of the Development of Arredonda Estates.
During the 1950s Mr. Brice acquired a platted subdivision in Alachua County known as Arredonda Estates Unit 1 (hereinafter referred to as "Unit 1").
Approximately 100 acres of property located adjacent to Unit 1 were also acquired by Mr. Brice.
Unit 1 met the existing plat law of Alachua County. Mr. Brice proceeded with the development of Unit 1 and the sale of lots therein.
Part of the 100 acres acquired by Mr. Brice was subsequently platted and developed for sale as residential lots as Arredonda Estates Unit 2A (hereinafter referred to as "Unit 2A").
Arredonda Estates Unit 2B (hereinafter referred to as "Unit 2B") was to be located to the north of Unit 2A. Because of the lack of access out of Unit 2B, the then County engineer of the Alachua County, Roy J. Miller, informed Mr. Brice that he would not allow Mr. Brice to proceed with Unit 2B until Mr. Brice
completed development of approximately 33 acres of real property located to the east of Unit 1. Mr. Miller believed that there would be better access from the various phases of Arredonda Estates if the 33 acres were developed first because there would be access out of the 33 acres onto County Road 24 and onto Broken Arrow Road to the east of the 33 acres.
Mr. Miller, as the County engineer, wielded a great deal of influence in the development of property in Alachua County at the time Mr. Brice developed Units 1 and 2A and at the time he was beginning development of the 33 acres. Although the evidence failed to prove that Mr. Miller could have legally required Mr. Brice to develop the 33 acres before developing Unit 2B, the uncontroverted evidence proved that it was believed that Mr. Miller's approval was necessary in order to complete a development.
The 33 acres surround Lot 111 on the east, west and north. The south boundary of Lot 111 is County Road 24, Archer Road. One of the two access roads to County Road 24 from the 33 acre development was located to the immediate east of Lot 111 and the other was located to the immediate west of Lot 111. Lot 111 is bounded on the south by County Road 24.
The 33 acres were to be developed as Arredonda Estates (hereinafter referred to as "Unit 4").
The Development of Unit 4.
Mr. Brice informed Mr. Miller that he was concerned about developing Unit 4 before developing Unit 2B because Mr. Brice planned to develop Lot 111 as a shopping center. He did not plan to build the shopping center until all phases of Arredonda Estates were completed, including Unit 2B. In agreeing to develop Unit 4 before Unit 2B, Mr. Brice was concerned about making expenditures for larger drainage facilities and obtaining additional easements necessary for the development of Lot 111 before he planned to begin actual development of the shopping center. Mr. Brice informed Mr. Miller of these concerns.
The shopping center Mr. Brice planned to develop was to consist of 296,000 square feet of paved surface and 50,000 square feet of roof area. These plans required a redesign of the drainage for Unit 4. In particular, the following modifications were necessary:
In conclusion I find it necessary to change the diameter of pipe #7 from an 18 inch diameter to a 21 inch diameter, placed at a
0.15 percent slope pipe grade. Some necessary amendments are required at this point. The larger size pipe in place will cost $9.20 per linear foot. Some sixty-two feet are needed, therefore the total cost will be $570.40.
Brice exhibit 9.
Despite Mr. Brice's concerns, Mr. Miller continued to insist on the development of Unit 4 before Unit 2B and Mr. Brice proceeded with the development of Unit 4.
Unit 4 was platted on July 19, 1970. The plat was recorded in Plat Book H, Page 30, Official Records of Alachua County.
The initial design of Unit 4 provided for one point of ingress and egress on to State Road 24 from Unit 4. Mr. Miller required that two points of ingress and egress be provided and Mr. Brice agreed. The evidence failed to prove that this requirement was agreed to in exchange for any representation from Alachua County that Mr. Brice would be allowed to develop the shopping center. The final plat provided two means of ingress and egress to State Road
24 and one means of ingress and egress to County Road Number Southwest 24-C (Broken Arrow Road).
Lot 111 is contained on the plat. No intended use for Lot 111 was designated on the plat of Unit 4. The plat simply identifies the lot. See Brice exhibit 5. The plat identifies the development of residential lots only.
The 33 acres was initially zoned as "A" (agriculture). In order to develop Unit 4 it was necessary to obtain approval of re-zoning of the property as R1C, residential use. The re-zoning of the 33 acres was sought and approved.
Lot 111 was also zoned for agricultural use when acquired.
On February 11, 1969, 4.27 acres of Lot 111 were re-zoned from "A" (agriculture) to "BR" (retail sales and service).
On July 1, 1969, a special use permit allowing a mobile home trailer sales agency was issued for use of 1.1 acres contiguous to the 4.27 acre parcel of Lot 111 by Alachua County.
On July 7, 1975, the 1.1 acres, which the special use permit had been issued for, was zoned from "A" to "BR."
Construction plans for site improvements for Unit 4 were subsequently prepared, filed with Alachua County and were approved. See Brice exhibit 10. Included on the plans is a rectangular shape identified as "Proposed Shopping Center" containing indications of measurements representing 50,000 square feet of building space. The "Proposed Shopping Center" designation is located on Lot 111.
Mr. Brice was subsequently informed that the site improvements for Unit 4 were approved by Alachua County. The evidence failed to prove, however, that Alachua County specifically considered or approved the construction of a shopping center on Lot 111 in approving the site improvement plans for Unit 4.
The approved site improvements for Unit 4 were ultimately made and accepted by Alachua County in September of 1970.
Government Action Relied Upon.
Mr. Miller intended to allow Mr. Brice to develop Lot 111 as a shopping center "as he had planned." Mr. Miller's approval was conditioned on the completion of development of Units 2B and 4 and the sale of lots thereon.
The shopping center to be approved was to be limited to what Mr. Brice "had originally proposed" which was a shopping center of 50,000 square feet.
Mr. Brice complied with Mr. Miller's condition that he complete development of Unit 4 before developing Unit 2B.
The evidence failed to prove that it was reasonable for Mr. Brice to believe that Mr. Miller's representations concerning the approval of Mr. Brice's intended development of a shopping center on Lot 111 would last indefinitely.
It was also unreasonable for Mr. Brice to believe that the representations of Mr. Miller would survive indefinitely beyond the time that Mr. Brice completed development of Arredonda Estates.
In July of 1970, Alachua County Zoning Regulations contained the following site plan approval requirement for shopping centers:
No permit shall be issued for construction of a shopping center until the plans and specifications, including the design of ingress and egress roads, parking facilities, and such other items as may be found of importance have been approved by the zoning commission.
Based upon this provision, Mr. Miller did not have the authority to approve the construction of a shopping center on Lot 111 in July of 1970.
If the representations made by Mr. Miller to Mr. Brice concerning construction of the shopping center had been made in July, 1970, it would be unreasonable for Mr. Brice to rely upon Mr. Miller's representation because of the Alachua County Zoning Regulations quoted in finding of fact 31. If the representations were made before July, 1970, it would be reasonable for Mr. Brice to rely on Mr. Miller's approval of the shopping center because the evidence failed to prove that Alachua County Zoning Regulation quoted above was in effect before July, 1970. The weight of the evidence proved that Mr. Miller's representations were made before July, 1970.
Detrimental Reliance.
Mr. Brice proceeded with the development of Unit 4. Roads and drainage facilities associated with Unit 4 were constructed by 1971. The cost of these improvements was approximately $68,989.54.
The total cost of improvements associated with Unit 4 was $121,947.54.
Mr. Brice also had to obtain a drainage easement but the evidence failed to prove the cost of doing so.
The exact amount expended on Unit 4 attributable to work performed just for Lot 111 and the shopping center was not proved by Ms. Brice.
One method of allocating costs associated with the development of Unit
4 to Lot 111 suggested by Ms. Brice is to determine the percentage of acreage Lot 111 represents of the whole of Unit 4: approximately 17.9 percent. Applying this percentage to the total costs equals $21,828.61. The weight of the evidence, however, failed to prove that $21,828.61 was actually incurred in association with Lot 111.
The evidence failed to prove that it would be reasonable to attribute any part of the expenditures listed in paragraphs 1, 3, 6, 8, 9, 11 or 12 of Brice exhibit 30 as attributable to Lot 111.
Based upon evidence presented by Alachua County, the total expenditures made by Mr. Brice associated with Lot 111 and the shopping center were approximately $1,005.50.
Subsequent Events.
Mr. Brice caused preliminary plans for a shopping center for Lot 111 to be developed. Brice exhibit 14. Those plans were never submitted for approval and no building permit was issued approving the construction of a shopping center for Lot 111.
The preliminary plans for the shopping center indicate a substantially different configuration for the shopping center than indicated on the site improvement plans for Unit 4. Brice exhibit 14.
No final development plan or plat approving a shopping center on Lot
111 was issued by Alachua County.
Efforts were made during the 1970s to market Lot 111 for development as a shopping center. These efforts were not successful. As a part of this effort, Mr. Brice incurred $7,000.00 for the construction of a three dimensional model of the proposed shopping center evidenced on the preliminary plans.
It has been suggested that Mr. Brice did not proceed with the development of the shopping center during the 1970's and into the 1980's for a number of reasons:
A dispute between Mr. Brice and Alachua County arose in 1976 concerning the road in Unit 2A;
A dispute also arose concerning the water system in the area of Arredonda Estates;
The state of the economy was not conducive to development.
The evidence, however, failed to prove why the shopping center was not developed.
In 1973, Alachua County created a development review committee. Final site plans for commercial sites were required to be approved by the committee. Mr. Brice did not obtain approval for the proposed shopping center or seek assurances from Alachua County that Mr. Miller's representations concerning the shopping center on Lot 111 were still valid.
During 1982 and 1983, Mr. Brice became aware of proposed revisions to the Alachua County Comprehensive Plan. Mr. Brice met with Alachua County officials concerning the revisions and followed the progress of the revisions.
In 1984 Alachua County adopted a comprehensive plan. Under this plan commercial use of Lot 111 was not allowed except for a neighborhood convenience store with square footage of 10,000 square feet.
In 1985, during a meeting with Alachua County personnel, Mr. Brice and his attorney were informed that Lot 111 could not be developed as a shopping center without a comprehensive plan amendment. No amendment was applied for.
In 1989, offers to purchase Lot 111 were received. Those offers were continent upon the property being developed consistent with the BR zoning.
Ms. Brice's name, then known as Carla B. Sutton, first appears in connection with Lot 111 in 1989 when offers to purchase Lot 111 were received. The evidence, however, failed to prove that she was owner of Lot 111 at that time.
In 1989 or 1990, a conceptual site plan review was applied for by David Miller, Mr. Brice's representative, concerning Lot 111. Brice exhibit 21. The application was considered at an Alachua County Development Review Committee meeting on March 22, 1990. Consideration of the application was deferred for two weeks.
The development Review Committee met on April 19, 1990 and considered the application for conceptual site plan review for Lot 111. The Committee was concerned about how the fact that Lot 111 had been zoned BR before the comprehensive plan had been adopted impacted the fact that development of Lot
111 as a shopping center was prohibited by the comprehensive plan. A decision was delayed for a month and staff was asked to prepare a report dealing with similarly situated parcels.
By January 1991, proposed language providing for vesting of certain zoning had been drafted by Alachua County. Brice exhibit 24.
By letter dated January 30, 1991, Kurt Larsen, Director of the Office of Planning and Development of Alachua County, informed all affected property owners that Alachua County was "considering" allowing a period of time during which existing zoning would be honored. Brice exhibit 25 Comments were invited.
By letter dated February 15, 1991, counsel for Ms. Brice responded to Mr. Larsen's January 30, 1991 letter. Brice exhibit 26.
A Transmittal Draft of the Future Land Use Element of the Alachua County Comprehensive Plan dated April 1991 was sent to the Florida Department of Community Affairs for review. See Brice exhibit 27. The Draft provided a two- year period during which undeveloped parcels zoned for a use that was otherwise inconsistent with the Comprehensive Land Use Plan would be allowed to be developed essentially in accordance with existing zoning. This policy was ultimately rejected by the Department of Community Affairs.
Alachua County informed Ms. Brice of the action of the Department of Community Affairs by letter dated September 18, 1991. Brice exhibit 28.
Rights That Will Be Destroyed.
Alachua County adopted a Comprehensive Land Use Plan in 1991. The following policy was agreed to in a compromise between Alachua County and the Department of Community Affairs concerning commercial enclaves:
Policy 3.4.3. Commercial Enclaves are designed within the Urban Cluster on the Future Land Use Map. These sites shall be subject to the following location and compatibility standards:
Development of Commercial Enclaves shall be
required to meet all concurrency requirements.
Development shall be required to minimize access from arterials and collectors.
Whenever possible, driveways shall use common access points to reduce potential turn movements.
A maximum of 20,000 square feet of gross leasable area shall be permitted within each enclave.
Uses may include neighborhood convenience centers consistent with Policy 3.8., offices consistent with Policy 3.9.1. and sit-down restaurants.
The land development regulations for this land use category shall specify performance standards required to mitigate any adverse impact of such development on adjacent land uses and affected public facilities. Such performance standards shall include buffering and landscaping provisions, site design measures to locate such uses away from less intensive adjacent land uses, signage and parking restrictions, and intensity provisions (e.g. height and bulk restrictions).
In the interim, until land development regulations consistent with these policies are adopted, the standards and criteria governing Commercial Enclaves shall be implemented through
the County's Development Review Committee process.
This policy shall be reviewed by 1993 to determine the effectiveness of the land use category.
Mr. Brice was informed, after contacting the Alachua County Growth Management Department, that his development of Lot 111 was limited by the commercial enclave policy.
Pursuant to the commercial enclave policy, development of Lot 111 is limited to a size of 20,000 square feet and the uses to which Lot 111 may be put are less than would be allowed under BR zoning.
Carla Brice's Reliance and Detriment.
The evidence in this case failed to prove that Ms. Brice, the current owner of Lot 111 and the applicant in this case, was aware of any representations made by Mr. Miller. More importantly, the evidence failed to prove that Ms. Brice in any way reasonably relied upon the representations made to her father.
The evidence also failed to prove that Alachua County made any representations to Ms. Brice that she would be allowed to develop Lot 111 as a shopping center. In fact, Alachua County has indicated just the opposite to Ms. Brice since she became the owner of Lot 111.
In light of the amount of time that passed after Mr. Miller's representations were made to Mr. Brice and the intervening events concerning
development in Alachua County before Ms. Brice acquired Lot 111, any reliance by Ms. Brice on Mr. Miller's representations would not be reasonable.
Finally, the evidence failed to prove that Ms. Brice detrimentally relied upon any representation of Alachua County concerning the development of Lot 111. Only Mr. Brice, Ms. Brice's father, made expenditures related to the development of Lot 111 as a shopping center.
I. Procedural Requirements.
On June 9, 1993 Ms. Brice filed her Application seeking an equitable vested rights certificate or a statutory vested rights certificate.
On September 22, 1993 Kurt Larsen, Director, Department of Growth Management, Alachua County, informed Ms. Brice that the Application was denied.
Ms. Brice appealed the decision to deny the Application by letter dated September 28, 1993.
The Division of Administrative Hearings was requested by letter dated January 18, 1994, from Alachua County to assign a hearing officer to conduct a formal administrative hearing.
The formal administrative hearing of this matter was conducted on March 14, 1994.
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(8), Florida Statutes (1993), and Alachua County Ordinance 92-9 (hereinafter referred to as the "Ordinance").
General Requirements of the Ordinance.
Pursuant to Section 163.3167, Florida Statutes, Alachua County was required to prepare a comprehensive plan governing the use and development of land located within Alachua County. In compliance with Section 163.3167, Florida Statutes, Alachua County adopted by Ordinance 91-17 a comprehensive plan, the Alachua County Comprehensive Plan: 1991-2001 (hereinafter referred to as the "Plan").
In order to insure that certain vested rights to develop property of Alachua County property owners are not infringed upon by application of the Plan, Alachua County promulgated the Ordinance.
In the Ordinance, Alachua County has recognized two general circumstances pursuant to which vested rights to develop property may be found:
"statutory vested rights" pursuant to Section 5 of the Ordinance; and (2) "equitable vested rights" pursuant to Section 6 of the Ordinance.
If a property owner believes that he or she has a statutory vested right or an equitable vested right to develop his or her property, the property owner may file an application with the Director of the Alachua County Department
of Growth Management (hereinafter referred to as the "Director"). Section 7 of the Ordinance.
Applications to determine if development rights are vested are required to be reviewed by the Director or any other person designated by the County Manager. Section 7 of the Ordinance.
The Director is required to review the application and supporting information and either grant (with or without conditions or limitations) the requested certificate, or inform the applicant in writing that the application is denied and the reason or reasons therefore. Section 7(d)(1) of the Ordinance.
If an applicant is aggrieved by the Director's decision, the applicant may appeal the Director's decision in writing no later than 30 days after the Director renders his or her decision. Section 7(d)(2) of the Ordinance. The appeal is to be assigned to a hearing officer to conduct an appeal in conformance with Section 8 of the Ordinance. Id.
Pursuant to a contract entered into between Alachua County and the Division of Administrative Hearings, Hearing Officers of the Division of Administrative Hearings may be authorized by Alachua County to conduct hearings to consider appeals on applications.
The manner in which appeal hearings are to be conducted is governed by Section 8 of the Ordinance. At the conclusion of a hearing, the Hearing Officer is required to issue a written decision. Section 8.c.(7) of the Ordinance.
An application is to be granted if an applicant demonstrates by a "preponderance of the evidence" that he or she is entitled to the certificate sought. Section 8.d.(7) of the Ordinance.
In this case, Ms. Brice has filed an Application seeking a vested rights certificate. Ms. Brice alleged that she is entitled to a vested rights certificate because she has statutory vested rights and equitable vested rights to develop Lot 111 as a 50,000 square foot shopping center.
Statutory Vested Rights.
Section 5 of the Ordinance sets out the circumstances under which an applicant will be deemed to have statutory vested rights. In pertinent part, Section 5.a.(2) of the Ordinance provides that an applicant will be deemed to have statutory vested rights under the following circumstances:
A development or approved phase of development, other than a development meeting the requirements of paragraph (1) of subsection a. of this section, that otherwise complies with and is allowed to proceed under all laws, ordinances and regulations other than provisions of the Comprehensive Plan and the new land development regulations adopted to implement the Comprehensive Plan with which it may be inconsistent, shall be deemed to have been issued a final local development order and to have commenced development and to be continuing in good faith such that is
covered by Statutory Vesting if it meets criteria under subparagraphs (a), (b), (c), or
(d) of this paragraph:
. . . .
(b) Subdivisions. Any subdivision or phase of a subdivision for which
A final development order in the form of a final development plan and plat or a final site plan for a commercial development not subject to platting requirements was approved and unexpired as of October 2, 1991, and
Construction pursuant to such final development order has started or is started before its expiration or October 2, 1992 whichever is earlier.
. . . .
The evidence in this case failed to prove that Ms. Brice or her father were issued a final development order concerning the development of Lot 111 as a shopping center. Ms. Brice's suggestion that the approval of the plat for Unit
4 also included approval of the development of Lot 111 as a shopping center is not supported by the weight of the evidence in this case and is inconsistent with the requirements of the Ordinance.
Although the plat for Unit 4 did include a representation of a shopping center on Lot 111, the evidence failed to prove that "a final development plan and plat or a final site plan" dealing specifically with the shopping center was ever submitted to, or approved by, Alachua County. In fact, the evidence proved that the understanding between Mr. Brice and Mr. Miller was that Mr. Brice would not begin development of the shopping center until after he had completed the development of the various phases of Arredonda Estates. Therefore, the approval of the plat for Unit 4 or any of the other units of Arredonda Estates only granted Mr. Brice the right to develop Unit 4.
Ms. Brice has also argued that she has statutory vested rights because Arredonda Estates was a subdivision which received a final development plan and plat and the shopping center was "known" by Alachua County to be a planned "phase of the subdivision". This argument is rejected. The evidence failed to prove that Mr. Brice's plans to develop Lot 111 constituted a phase of a subdivision or that he had so informed Alachua County.
Based upon the foregoing, it s concluded that Ms. Brice has failed to prove her entitlement to a vested rights certificate pursuant to Section 5 of the Ordinance.
Equitable Vested Rights.
Section 6 of the Ordinance governs the determination of whether an applicant's development rights in property have vested pursuant to equitable vested rights. The criteria for determining whether an applicant has equitable vested rights are as follows:
Developments meeting the following requirements shall be entitled to an Equitable Vested Rights Certificate: those developments for which an eligible applicant for an Equitable Vested Rights Certificate:
has relied in good faith;
upon some 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 highly inequitable or unjust to destroy the rights to develop or continue to develop the property.
Section 6.a. of the Ordinance.
In determining whether equitable vested rights exist, factors and circumstances identified in Florida case law addressing equitable estoppel or vested rights, are to be considered. Section 6.b. of the Ordinance.
Florida case law has described the doctrine of equitable estoppel 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).
Ms. Brice has argued that she proved by a preponderance of the evidence that all of the elements of equitable estoppel and, therefore, equitable vesting as defined in Section 6 of the Code, exist in this case.
Ms. Brice has suggested that the representations of Mr. Miller to her father, Carl Brice, and Mr. Brice's actions in detrimental reliance thereon meet the requirements for equitable estoppel. In particular, Ms. Brice has suggested that Mr. Miller assured her father that he would be allowed to complete the development of Lot 111 as a shopping center without time limitation. In reliance thereon, Mr. Brice agreed to certain conditions imposed upon the development of Arredonda Estates by Mr. Miller and incurred extensive expenses in reliance upon Mr. Miller's representations.
Ms. Brice has not argued that any representations were made directly to her by Mr. Miller or Alachua County. Ms. Brice has also not argued that she personally made any change in position or incurred extensive obligations or expenses in reliance upon any action of Mr. Miller or Alachua County. She has relied only upon the actions of her father and has suggested that she is entitled to the same rights as "her predecessor in title."
There are several reasons why Ms. Brice's position must be rejected. First, the evidence failed to prove that Mr. Miller had the legal authority to make the representations he made to Mr. Brice. The suggestion that, since Mr. Miller as a practical matter "ran things" during the time in question, Mr. Miller should be considered to have obligated Alachua County by his
representations to Mr. Brice is not persuasive. Regardless of how things were handled from a practical stand point, absent a showing that Mr. Miller had the legal authority to bind Alachua County by his representations, Mr. Miller's actions were ultra vires and void ab initio. See Corona Properties of Florida
v. Monroe County, 485 So.2d 1314 (Fla. 3d DCA 1986).
Secondly, the evidence failed to prove that Mr. Miller's representations, even if valid, could reasonably be relied upon by Mr. Brice in perpetuity.
Finally, the evidence failed to prove that any equitable vested rights that Mr. Brice might have had were passed to his daughter. Although the parties have not addressed this issue and no case directly on point has been found by the undersigned, the issue in this case is whether Alachua County made representations to the applicant, Carla Brice, which she reasonable relied upon to her detriment.
No evidence was offered to prove that Alachua County made any representation to Carla Brice that she could develop Lot 111 as a shopping center or that Carla Brice made any substantial change in her position or incurred any obligations or expenses in reliance on any representation of Alachua County.
In Franklin County v. Leisure Properties, Ltd., 430 So.2d 475 (Fla. 1st DCA 1983), the First District Court of Appeal considered whether a purchaser of real property can "stand in [the] shoes" of the seller of the property in asserting equitable estoppel against a government entity. The Court concluded that the purchaser of the real property did not stand in the shoes of the seller, stating:
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. . . . [Emphasis added].
Leisure Properties, 430 So.2d at 480. See also Florida Companies v. Orange County, 411 So.2d 1008 (Fla. 5th DCA 1982); and Jones v. U.S. Steel Credit Corporation, 382 So.2d 48 (Fla. 2d DCA 1980).
Ms. Brice has cited several cases in support of her argument concerning equitable estoppel. The facts of those cases, however, are distinguishable from the facts in this case.
Based upon the foregoing, it is concluded that Ms. Brice has failed to prove her entitlement to a vested rights certificate pursuant to Section 6 of the Ordinance.
ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that the denial of the Application for Equitable and Statutory
Vested Right Certificate filed by Carla J. Brice by Alachua County is AFFIRMED. DONE and ORDERED this 28th day of April, 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 28th day of April, 1994.
APPENDIX
Case Number 94-0339VR
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.
Ms. Brice's Proposed Findings of Fact
Accepted in 3-5.
Accepted in 6.
3-6, 9-11, 14, 25 and 26: These proposed findings of fact have not been accepted for essentially two reasons. First, they represent earlier history which are not of great relevancy to the decision in this case. Secondly, they are not based upon competent substantial evidence. These proposed findings of fact are based upon Brice exhibit 36A, B and C. In particular, the proposed findings of fact are based upon alleged facts contained in pleadings filed by counsel for Ms. Brice in another proceeding.
The pleadings set out the events which counsel alleged would be proved in the proceeding in which the pleadings were filed. Therefore, the basis for these proposed findings of fact constitute hearsay. Even though Brice exhibit 36 was not objected to by Alachua County, the proposed findings of fact have not been made.
See 7.
Accepted in 7.
Accepted in 5 and 14.
See 15 and 18. The evidence failed to prove that Alachua County approved "commercial uses."
Accepted in 16. The last sentence was not supported by the weight of the evidence.
Accepted in 16.
Accepted in 15, 23 and 25.
Accepted in 26.
Accepted in 12-13.
Accepted in 26-27.
See 9.
Accepted in 26. The last sentence is not relevant.
Accepted 34-35. See 37.
Accepted in 43. The last sentence is not supported by the weight of the evidence.
See 44.
Accepted in 47.
Hereby accepted.
Accepted in 50-51 and hereby accepted.
Accepted in 52.
Accepted in 53.
Accepted in 54 and hereby accepted.
Accepted in 55.
Accepted in 56 and hereby accepted.
Accepted in 57.
Accepted in 58 and hereby accepted. 38 See 60-61.
39 Hereby accepted. The last sentence is not supported by the weight of the evidence.
40-41 Accepted in 66.
Accepted in 67.
Accepted in 68.
Accepted in 69.
Accepted in 70.
Alachua County's Proposed Findings of Fact
Accepted in 8, 15 and 17.
Accepted in 19.
Accepted in 20.
Accepted in 21.
Accepted in 22. 6-7 Hereby accepted.
Accepted in 35 and hereby accepted.
Accepted in 8-9, 16 and 26.
Accepted in 31. But see 32.
Accepted in Accepted in 33, 40 and 46.
Accepted in 48.
Accepted in 49.
Hereby accepted.
Accepted in52-53.
Accepted in 55 and 57.
Accepted in 59.
Accepted in 20-22 and hereby accepted.
See 34 and 37.
See 35. The evidence failed to prove the exact amount paid for the easement.
Accepted in 13.
Accepted in 37-38.
Accepted in 39.
Accepted in 38.
Accepted in 36 and 65. See 39
Accepted in 16.
Accepted in 14.
Hereby accepted.
Accepted in 66.
Accepted in 67.
Accepted in 68.
Accepted in 69.
Accepted in 70
COPIES FURNISHED TO:
Leonard E. Ireland, Jr., Esquire CLAYTON, JOHNSON, QUINCEY, IRELAND,
FELDER, GADD & ROUNDTREE
Post Office Box 23939
111 S. E. 1st Avenue Gainesville, Florida 32602
David W. Wagner Associate Counsel
Office of the County Attorney Post Office Box 2877 Gainesville, Florida 32602
NOTICE OF RIGHT TO JUDICIAL REVIEW
ANY PARTY WHO IS AGGRIEVED BY THIS FINAL ORDER AND WHO IS ENTITLED TO JUDICIAL REVIEW IN THE CIRCUIT COURT FOR THE EIGHT JUDICIAL CIRCUIT PURSUANT TO SECTION 9 OF ALACHUA COUNTY ORDINANCE 92-9. A PETITION FOR WRIT OF CERTIORARI MAY BE FILED WITH THE CLERK OF THE CIRCUIT COURT NOT LATER THAN THIRTY (30) DAYS AFTER THIS FINAL ORDER IS FILED WITH THE CLERK TO THE BOARD OF COUNTY COMMISSIONERS.
| Issue Date | Proceedings |
|---|---|
| Apr. 28, 1994 | CASE CLOSED. Final Order sent out. Hearing held 03/13/94. |
| Apr. 04, 1994 | Memorandum in Support of Carla Brice's Application for Equitable and Statutory Vested Rights Certificates; Final Order (unsigned) filed. |
| Apr. 04, 1994 | (unsigned) Proposed Recommended Order filed. (From David W. Wagner) |
| Mar. 14, 1994 | CASE STATUS: Hearing Held. |
| Feb. 14, 1994 | (Petitioner) Notice of Appearance filed. |
| Jan. 27, 1994 | Amended Notice of Hearing sent out. (hearing set for 3/14-15/94; 10:00am; Gainesville) |
| Jan. 25, 1994 | Notice of Hearing sent out. (hearing set for 3/14-15/94; 10:00am; Gainesville) |
| Jan. 21, 1994 | Notification card sent out. |
| Jan. 20, 1994 | Agency referral letter; Appeal of Denial (ltr form); Alachua County Vested Rights Ordinance; Written determination of the Director of Growth Management of the original vested rights application filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Apr. 28, 1994 | DOAH Final Order | Petitioner failed to prove right to vested rights certificate. No statutory or equitable vested rights. Can't ""stand in shoes"" of prior owner. |
