vs. ) CASE NO. 95-2788VR
Respondent. )
The final hearing in the above-styled matter was heard pursuant to notice by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings, on July 6, 1995, in Green Cove Springs, Florida.
For Respondent: Mark H. Scruby
Whether the Petitioners have a vested right to receive a building permit for a portion of the lots owned by them in a unplatted subdivision known variously as Bradley-Triplett Subdivision or Governor's Creek Subdivision pursuant to the Vested Rights Review Process of the Clay County 2001 Comprehensive Plan?
On or about May 8, 1995, 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 (the Application) was filed by the Applicants, John Bradley and Joseph Triplett, with the Clay County Planning Department (the Department). The Applicants also filed documentation in support of their application. The Department reviewed the application, and referred the matter to Division of Administrative Hearings to conduct a hearing pursuant to the Plan and to an agreement between the County and the Division. The hearing was scheduled for June 19, 1995, but was rescheduled by agreement of the parties for July 6, 1995.
The hearing was held on July 6, 1995 at which the Applicants introduced their application (Applicants' Exhibit 1), and the testimony of John Bradley and Lynn Weber. The Applicants also placed in the record additional documentary evidence in support of their application. The County called Ms. Weber and placed a bound composite of documentary exhibits in the record by stipulation.
No transcript of the hearing was ordered by the parties. The parties both filed proposed findings which were read and considered. The Appendix to this order states which of their proposed findings were adopted and which were rejected and why.
The Applicants acquired in 1960 for approximately $40,000 a 38 acre parcel of real property located adjacent to Governors Creek just outside the corporate limits of the City of Green Cove Springs in Clay County, Florida.
The applicants created an unrecorded subdivision by subdividing the parcel into lots approximately one-half acre in size in accordance with a map dated July 19, 1961 which shows 50 numbered lots, access roads to these lots, and three parcels designated as not being included in the subdivision.
The map of the subdivision was never recorded in the office of the Clerk of the Court of Clay County, but the tract has been referred to variously as the Bradley-Triplett Subdivision and Governor's Creek Subdivision.
The Applicants began to develop the tract in 1961 for the purpose of selling the lots therein as single family home sites. Their activities included clearing and grading all the roads shown on the map and installing storm drainage structures.
Shortly after the initial work was done, the Applicants approached the County Supervisor of Roads, James Knowles, and the County undertook maintenance of the roads.
At the time development began, Clay County had no subdivision regulations, and there was no requirement to record the plat of the subdivision. A map of the subdivision was given to the County at the time it began to maintain the roads in 1961.
Sales of lots in the subdivision began in 1961, and several lots were sold in the subdivision over the next few years. However, sales efforts were discontinued in 1965 because of the poor market.
At the request of the Applicants, the County ceased to maintain a portion of the roads in 1975 in an effort to prevent dumping of garbage in the area.
Initially, the subdivision was zoned agricultural. In June 1976, Mr. Bradley appeared before the Clay County Zoning Commission and requested the zoning of 30 acres of the tract be changed from BB to RB which permitted one single family dwelling per one-half acre. This request was granted.
In June 1976, Mr. Bradley wrote Mr. John Bowles, Public Works Director of Clay County, requesting permission to install water lines within the graded road rights-of-way as shown on a map submitted by the Applicants which depicted all the lots which are the subject of the instant Petition for vested rights.
This permission was granted by Bowles, and the Applicants paid $8,000 for the installation of water lines and fire hydrants in the subdivision. Water service is provided by the City of Green Cover Springs.
In August 1976, the Applicants presented to the County a Warranty Deed for the roads shown in the Map. The County accepted the roads and agreed to continue to maintain the roads if certain improvements were made. Subsequently, the Applicants worked on making the improvements requested by the County, and the County continued to maintain the roads.
The subdivision has appeared on maps used by various County departments for many years.
In June 1978, Mr. Bradley appeared before the Clay County Planning, Zoning and Building Commission and requested that the remainder of the subdivision be re-zoned from agricultural to RB. This request was granted.
In September 1978, the Public Works Department of Clay County requested the Applicants perform additional work on the road network in the subdivision to include creating a 20 foot drainage easement, construction of a drainage ditch, installation of street signs, and other improvements regarding grading and drainage. The drainage easement was granted to the County, and the drainage ditch was apparently constructed together with some of the other requested improvements; however, not all of the requested improvements were completed to the County's satisfaction.
In March 1980, Mr. Bradley wrote Mr. Bowles a letter granting the County access to the roads within the subdivision for the purpose of maintaining them.
In 1983, the County adopted new standards for the acceptance of roads not located within platted subdivisions. At this time, the Applicants became concerned about the status of the roads, and appeared before the County Commission. In November 1983, they contacted Mr. Bowles regarding their concerns. The status of County-requested improvements was a subject of continuing correspondence between the County and the Applicants. As a result thereof, the Applicants again undertook to satisfy the County regarding the list of requested improvements to the roads, and expended additional money on these improvements.
The Applicants have spent over the years $20,000 on the roads, $15,000 on the water system and fire hydrants, and $4,000 on the drainage system within the subdivision.
In 1984, the County Commission determined that it would not accept responsibility for maintenance of the roads, but that it would not re-convey title to the roads to the Applicants. The County has not altered its position since that determination.
There are 50 numbered lots in the subdivision, and three unnumbered outparcels, some of which have been subsequently subdivided by sales. The unnumbered outparcel located in the northeast corner of the subdivision will be designated in this order as the unnumbered northeast parcel. The remaining unnumbered lots will be designated in this order as Lots A through G, which are located as follows: Lot A, located to the west of Lot 33; Lot B, located to the north of Lot A; Lot C, located to the north of Lot B; Lot C, located to the
north of Lot B; Lot D, located to the north of Lot C; Lot E, located to the north of Lot D; Lot F, located to the north of Lot E, and Lot G, located to the north of Lot F.
The County concedes there are 19 lots of record in the subdivision: Lots numbered lots 1, 8, 9, 10, 11, 12, 13, 33, 34, 35, 36, 37, 40, 41, 42 and
43 plus the lots designated above as Lots A, D and F. The Hearing Officer includes Lot E as one of the recorded lots because it was subdivided from Lots D and F, which the County recognizes as lots of record, after the parcel from which the three lots were created was sold as one lot. Lots 1, 8, 9, 10, 11, 12, 13, 33, 34, 35, 36, 37, 40, 41, 42, 43, and unnumbered Lots A, D, E, and F meet the Plan's criteria for development, and are not at issue in these proceedings.
The Plan requires that over 70 percent of the total number of lots in a subdivision created between 1959 and 1970 be sold for the remaining lots to statutorily vest. The Applicants' subdivision does not meet the criteria in the Plan for statutory vesting because the requisite percentage of lots have not been sold. The lots at issue in the Applicant's request for equitable vesting are the remaining numbered lots ( 2, 3, 4, 5, 6, 7, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 38, 39, 44, 45, 46, 47, 48, 49, and 50), the unnumbered northeasterly parcel, and the lots designated in this order as Lots B, C, and G.
On January 23, 1992, the Board of County Commissioners of Clay County formally adopted the 2001 Comprehensive Plan pursuant to and in compliance with Chapter 163, Part II, Florida Statutes.
On November 23, 1993, the zoning of the subdivision was administratively changed to AR-2 which permits the building of single family residences at a density of one per five acres. None of the lots at issue are five acres in size and qualify for further development.
A total of 12 homes have been built in the subdivision, each having an average size of 1,800 square feet and occupying lots approximately 1/2 acre in size.
The existing layout of the roads does not permit consolidation of the unsold existing lots into five acre lots. Even if they could be consolidated, the increased costs of a five acre lot would dictate the construction of a house larger than 1,800 square feet.
In sum, enforcement of the current plan's provisions will prevent any further development of a valuable piece of property conveniently located adjacent to the City of Green Cove Springs in a subdivision which has been recognized and considered in the County's development plans and maps for thirty years.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this case pursuant to an agreement between the Clay County and the Division, the provisions of Chapter 120, Florida Statutes, the 2001 Comprehensive Plan, and the County's Land Development Code. Pursuant to the Code and agreement, the Hearing Officer is required to issue a written decision approving, denying or approving with conditions the application.
The Applicants requested the County consider its request for the vesting of both statutory and equitable rights. The facts reveal that the County's initial determination that the Applicants did not meet the statutory vesting criteria was correct because the Applicants did not sell enough lots to qualify. The County recognized the status of certain of the lots within the subdivision as lot of record under the 2001 Plan. These lots of record (See the listing in Paragraph 20 of the Findings of Fact) may be developed consistent with the plan and zoning requirements.
The Applicants' claim of equitable rights having vested pursuant to Section 20.8-7 of Article VIII of the Land Development Code relates to the remainder of the lots within the subdivision. (See the listing in Paragraph 21 of the Findings of Fact.) Section 20.8-7 of Article VIII of the code provides as follows:
(b) Criteria For Determining Equitable 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.
The concept of equitable vesting under the Code is based upon the concepts and, therefore, the proof required for equitable estoppel. These elements limiting local government's exercise of power to zone were set forth in the case of Smith v. City of Clearwater, 383 So.2d 681 (Fla. 2d DCA 1980), 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.
The County argues that the amounts expended by the Applicants are not "excessive" because they are not large expenditures on large scale projects. In matters relating to equity, the size of the expenditure is considered relative to the size of the project. In this case, the initial costs compounded over thirty years plus the compounded costs of the improvements to the storm drainage, roads and water systems constitute the Applicant's investment.
Because only twenty of the more than 50 lots have been sold, a significant portion of the Applicant's investment is at risk because, without the requested relief, the Applicants will not be able to sell any of the remaining lots.
The County recognizes that a common denominator in equitable estoppel cases is actual knowledge on the part of the local government of the landowner's plans for development and some affirmative act on the part of local government to thwart those plans. The County clearly had actual knowledge of the intent of the Applicant's to develop the subdivision. The roads and zoning of the subdivision, or portions of it, had been before the County Commission or County Zoning Board on many occasions.
In this case, the action on the part of the County was the County's demand that the Applicants improve the roads and drainage as a condition for maintaining the roads. This was an inducement to the Applicants to change their position and invest an amount almost equal to their original investment in the project.
The valid, unexpired act of government involved is the provision which permits the County to accept, construct, and maintain roads. The County accepted the deed to the roads in 1976, and maintained the roads for many years. Although the County ceased to maintain the roads in 1984, it did not cede ownership in the roads to the Applicants. The position taken by the County that it took title to the roads and, yet, is not obligated to maintain them is questionable because the "conditions precedent" to accepting the roads for maintenance were the same conditions required for transferring title. If the County takes the position it has title to the roads, the conditions precedent to the transfer would have had to have been performed or their performance waived by the County. Therefore, accepting the County's position, the County is obligated to maintain the roads and take other action against the Applicants and property owners in the subdivision for nonperformance of any conditions which have not been performed.
In sum, the record reveals thirty years of knowledge by the County of the subdivision. The subdivision and its roads have appeared on planning maps of the area for many years. The Applicants made a significant initial investment in relative terms in the project, and were induced by the County to expend an amount almost equal to their initial investment in order to have the County maintain the roads. The Applicants seek to complete development of the subdivision; however, imposition of the new zoning standard would prevent this. This subdivision is located adjacent to the City of Green Cove Springs where residential densities are consistent with the density which would result if the application were granted. Most of the infrastructure requirements to support this subdivision have been in place for many years. Granting of the Application is not only supported by the factual and legal record, but granting it also would benefit the County, City, and existing property owners.
Wherefore, based upon the foregoing findings of fact and conclusions of law, the Applicants' application should be granted.
DONE AND ENTERED this 24th day of August, 1995, in Tallahassee, Leon County, Florida.
STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The DeSoto Building
Filed with the Clerk of the Division of Administrative Hearings this 24th day of August, 1995.
Both parties submitted proposed findings which were read and considered. The following proposals were adopted as indicated, or rejected for the reason stated:
Para 16 Rejected as being contrary to the best evidence.
Mark H. Scruby, Esquire Clay County Attorney Post Office Box 1366
Lynn A. Weber, Planner Clay County Vested Rights Post Office Box 1366
THIS FINAL ORDER IS SUBJECT TO JUDICIAL REVIEW PURSUANT TO SECTION 163.3215, FLORIDA STATUTES.
