STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GERALDINE MAGUIRE, )

)

Petitioner, )

)

vs. ) CASE NO. 96-5529VR

)

CLAY COUNTY, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, a formal hearing was held in this case before Larry J. Sartin, a duly designated Administrative Law Judge of the Division of Administrative Hearings, on January 9, 1997, in Green Cove Springs, Florida.

APPEARANCES

For Petitioner: Van Royal, Project Director

Magnolia Point Golf & Country Club 3616 Magnolia Point Boulevard Green Cove Springs, Florida 32043

Elliott Maguire

Post Office Box 3741

St. Augustine, Florida 32085

For Respondent: Mark Scruby

Clay County Attorney Post Office Box 1366

Green Cove Springs, Florida 32043

STATEMENT OF THE ISSUE

The issue in this case is whether the Petitioner, Geraldine Maguire, has demonstrated, pursuant to the Vested Rights Review Process of Clay County, Florida, that a vested rights certificate

to develop certain real property located in Clay County should be issued by Clay County, notwithstanding the fact that such development will not be in accordance with the requirements of the Clay County 2001 Comprehensive Plan.

PRELIMINARY STATEMENT

On or about November 25, 1996, 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 Van Royal on behalf of Petitioner with the Clay County Department of Planning and Zoning.

Documentation in support of the Application was also filed. On or about November 18, 1997, Clay County referred the Application and the supporting documentation to the Division of Administrative Hearings for assignment of an Administrative Law Judge.

Pursuant to an agreement of the parties, a hearing was held on January 9, 1997, to give 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 Respondent, Clay County, an opportunity to be heard.

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 it (Petitioner’s exhibit 1), was accepted into evidence. Petitioner’s exhibit 2, a copy of excerpts from a ledger maintained by Elliott Maguire, were not provided. Three other exhibits were offered by Petitioner and were accepted into evidence. Three exhibits were offered by Clay County. They were accepted into evidence. Testimony was offered by Elliott Maguire, Van Royal and Lynn Weber, Senior Planner with Clay County.

No transcript of the hearing was ordered by the parties.

Petitioner filed a proposed final order. Respondent did not file a proposed order.

FINDINGS OF FACT

1. The Subject Property.

   
   

   1. The property at issue in this proceeding consists of approximately 28 acres of land located in Clay County, Florida.

   2. The subject property is known as “Elmwood Subdivision”.

      
      

   3. Elmwood was acquired in the early 1960s by Elliott Maguire and his spouse at that time. Elliott Maguire became sole owner of the Elmwood in 1964.

   4. Elmwood is bordered on the north by Shedd Road, on the east and part of the south by Brown’s Barn Road and on the west by Duval Avenue.

   5. All of the roads that surround Elmwood are unpaved Clay County roads. Clay County has maintained these roads before and after Mr. Maguire began to develop Elmwood.

   6. In 1978 Elliott Maguire and Geraldine Maguire deeded a sixty foot right of way on Barnes Barn Road to Clay County. Clay County accepted the right of way at a meeting of the County Commission on October 10,1978. The evidence failed to prove, however, that the right of way was given in reliance upon any promise or representation from Clay County concerning development of Elmwood. The easement was for right of way already used for Barnes Barn Road. The evidence failed to prove that the easement had anything to do with the development of Elmwood.

   7. Mr. Maguire decided to develop Elmwood during the 1970s. He created an unplotted subdivision with 23 lots, all over an acre in size. Mr. Maguire intended to sell the lots as single- family home sites.

   8. Mr. Maguire had the property cleared, swales and easements were graded and storm drainage structures were cleared and installed.

   9. Mr. Maguire hired a surveyor and an engineer for the project.

   10. Mr. Maguire, the surveyor and the engineer discussed the project with Mr. Bowles, Clay County Public Works Director at the time. The evidence failed to prove that John Bowles made any representations concerning the development of Elmwood.

   11. Easement and drainage work on Elmwood was completed in 1979.

   12. The first lots were sold in 1981. A total of 8 lots were sold between 1981 and 1984.

   13. A copy of the engineering plans for Elmwood were provided to Clay County in 1978.

2. Government Action Relied Upon by Petitioner.

   
   

   1. Prior to September of 1985 Clay County did not require platting of subdivisions such as Elmwood.

   2. The only specific restriction on the development of Elmwood when Mr. Maguire began development was that the density was limited to one unit per acre. This restriction was part of the zoning category of the property.

3. Detrimental Reliance.

1. Mr. Maguire incurred costs in his development of Elmwood. Among other things, Mr. Maguire incurred expenses of approximately $20,000.00.

2. Due to he adoption of the Clay County 2001 Comprehensive Plan in 1992, the remaining unsold 15 lots of Elmwood may be used for only 3 additional residences. The approximate fair market value of the 15 lots is approximately

   $12,000 to $15,000 per lot. The fair market value of the 3 allowable lots is $20,000 to $25,000.

3. The evidence, however, failed to prove that any of the expenses incurred in developmenting Elmwood or the loss in value of the remaining lots is attributable to any representation of

   Clay County that Elmwood could be developed as an unplatted subdivision indefinitely into the future.

   CONCLUSIONS OF LAW

   
   

   1. Jurisdiction.

      
      

4. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.65(7), Florida Statutes (1996 Suppl) 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.

      
      

5. Pursuant to Section 163.3167, Florida Statutes, Clay County was required to prepare a comprehensive plan governing the use and development of land located in 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”).

6. 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.

7. 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.

8. 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.

   
   

9. 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.

10. Pursuant to a contract entered into between Clay County and the Division of Administrative Hearings, Administrative Law Judges 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.

11. 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 the hearing, the Administrative Law Judge 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 Vesting Rights.

       
       

12. 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.

          
          

13. 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 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.

14. Petitioner has asserted that all of the elements of equitable estoppel and, therefore, equitable vesting as defined in Article VIII of the Code, exist in this case.

15. Based upon the evidence presented in this matter, Petitioner has failed to prove that she relied upon an “valid, unexpired act or omission of the government” in this matter. The only act of Clay County proved in this matter is the existing law at the time that development of Elmwood was commenced. Property owners cannot assume, however, that the law will never change. It is not reasonable to expect that the existing zoning and land use regulations applicable to Elmwood would not change. See City of Gainesville v. Cone, 365 So.2d 737 (Fla. 1st DCA 1978). There must be some other act of Clay County that would reasonably have led Petitioner to believe that, even if the law governing the development of Elmwood changed in the future, the development would be allowed to proceed. Such an act of Clay County was not proved in this matter.

ORDER

Based on 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 filed November 25, 1996, by Van Royal on behalf of Geraldine Maguire is DENIED.

DONE and ORDERED this 13th day of February, 1997, in Tallahassee, Florida.

LARRY J. SARTIN

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 13th day of February, 1997.

COPIES FURNISHED:

Van Royal, Project Director Magnolia Point Golf & Country Club 3616 Magnolia Point Boulevard Green Cove Springs, Florida 32043

Elliott Maguire

Post Office Box 3741

St. Augustine, Florida 32085

Dale Wilson, Chairman

Board of County Commissioners Clay County

Post Office Box 1366

Green Cove Springs, Florida 32043

Mark Scruby

Clay County Attorney 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

This Final Order is subject to judicial review pursuant to Section 163,3215, Florida Statutes.

Docket for Case No: 96-005529VR

Orders for Case No: 96-005529VR