STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SILVER SANDS ESTATES, INC., )

)

Petitioner, )

)

vs. ) Case No. 99-2490VR

)

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 June 25, 1999.

APPEARANCES

For Petitioner: T. R. Hainline, Jr., Esquire

Rogers, Towers, Bailey, Jones & Gay, P.A. 1301 Riverplace Boulevard, Suite 1500

Jacksonville, Florida 32207

For Respondent: Mark H. Scruby. County Attorney

Clay County

Post Office Box 1366

Green Cove Springs, Florida 32043-1366 STATEMENT OF THE ISSUES

Whether the Petitioner, Silver Sands Estates, Inc., has demonstrated, pursuant to the Vested Rights Review Process of Clay County, Florida, that a vested rights certificate to undertake 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 April 8, 1999, 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, was filed by Petitioner, Silver Sands Estates, Inc., with the Clay County Department of Planning and Zoning. Petitioner also filed documentation in support of the Application. On or about May 21, 1999, Respondent, Clay County, referred the Application and the supporting documentation to the Division of Administrative Hearings for assignment of an Administrative Law Judge.

As originally styled, "Little Rain Lake Estates" was reflected as Petitioner. Little Rain Lake Estates is, however, the name used to identify the property which is at issue in this case. The owner of the property and, therefore, the Petitioner, is Silver Sands Estates, Inc. At the commencement of the hearing in this case the style of the case was changed to reflect the foregoing.

Pursuant to an agreement of the parties, a hearing was held on June 25, 1999, by telephone 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 an opportunity to be

heard. Finally, the hearing was held to give the undersigned and 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, and 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 were accepted into evidence. Also, Stipulations of Fact filed by the parties, together with certain exhibits, were accepted into evidence. The Stipulations of Fact explain and modify the Application. Daniel Haines, President of Petitioner, and Lynn Weber, Senior Planner with Respondent, testified.

No transcript of the hearing was ordered by the parties. Petitioner filed a Proposed Final Order. Although informed of its right to do so, Respondent did not file a Proposed Final Order. Petitioner's Proposed Final Order has been fully considered in entering this Final Order.

FINDINGS OF FACT

1. The Property.

   
   

   1. Pursuant to Warranty Deeds dated August 15, 1975, and November 10, 1980, Silver Sands Estates, Inc. (hereinafter referred to as "Silver Sands"), acquired certain real property located in Clay County, Florida (hereinafter referred to as the "Property").

   2. At the time Silver Sands acquired the Property, the applicable zoning district permitted the development of the Property for single-family residential development at a maximum density of one unit per acre.

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

   1. In 1979-1980, Silver Sands prepared a development plan for the Property which included the planned single-family residential development known as "Little Rain Lake Estates." The planned development consisted of a total of 96 single-family residential lots. Phase One and Phase Two consisted of 13 lots in each phase.

   2. In approximately 1979-1981, Silver Sands improved and maintained an unpaved private road, Little Rain Lake Road, which was to be used for the development of Phases One and Two of Little Rain Lake Estates. The approximate costs to Silver Sands for these actions was $1,000.00.

   3. In 1979-1981, Silver Sands caused surveys, topographical surveys, and engineering plans to be prepared for the construction of a portion of Little Rain Lake Road as a paved dedicated road. Little Rain Lake Road was intended to serve Phases One and Two of Little Rain Lake Estates. The road was planned to eventually extend approximately 3,640 linear feet east from State Road 21. The approximate cost to Silver Sands for

      these items included the following: surveys, $4,000; topographic surveys, $6,000; engineering, $6,000.

   4. Plans for the construction of approximately 1,400 linear feet of Little Rain Lake Road were submitted to Clay County in 1980 for review and approval. This portion of Little Rain Lake Road was intended to serve nine of the lots within Phase One of Little Rain Lake Estates; the lots were shown on the plans for the road submitted to Clay County. The plans also depicted a temporary turnaround at the end of the 1,400 linear feet of the road submitted for approval. It was evident from the plans that Silver Sands planned a future extension of the road to serve the rest of Little Rain Lake Estates.

   5. Subsequent to the filing of the plans for the construction of the first 1,400 linear feet of Little Rain Lake Road, Clay County requested that Silver Sands submit the development plan for all phases of Little Rain Lake Estates (as described in Finding of Fact 3). Silver Sands complied with this request. Clay County was, therefore, aware of Silver Sands' plan to develop Little Rain Lake Road in conjunction with its development of Phases One and Two of Little Rain Lake Estates.

   6. On November 12, 1980, the proposed plans for the construction of the first 1,400 linear feet of Little Rain Lake Road were approved by Clay County.

   7. Between 1981 and 1991 eight lots within Phase One of Little Rain Lake Estates were sold.

3. Silver Sands' Detrimental Reliance.

   
   

   1. In December 1980 and January 1981 Silver Sands constructed the first 1,400 linear feet of Little Rain Lake Road approved by Clay County. The cost of the construction was

      $26,845.

      
      

   2. In February, 1981, Clay County confirmed that the first 1,400 linear feet of Little Rain Lake Road approved by Clay County had been constructed pursuant to Clay County specifications.

   3. By Warranty Deed dated March 2, 1981, Silver Sands dedicated the portion of Little Rain Lake Road serving Phase One of Little Rain Lake Estates to Clay County.

   4. Also between 1981 and 1991, Silver Sands continued to maintain the unpaved and private portion of Little Rain Lake Road extending the remaining approximately 2,240 feet of the portion of Little Rain Lake Road intended to serve Phase One and Phase Two. The approximate cost to Silver Sands for these actions was

      $1,000.00.

      
      

   5. In 1997, Clay County requested Silver Sands to convey to the County approximately 34 acres of property along Little Rain Lake Road, formerly a part of Phases One and Two of Little Rain Lake Estates. Silver Sands conveyed the property to the County.

   6. Also in 1997, Clay County requested Silver Sands to dedicate the remaining approximately 2,240 feet of Little Rain

      Lake Road which had been surveyed and engineered by Silver Sands in 1979-1980. The County also requested Silver Sands to provide the surveys and plans which Silver Sands had prepared in 1979- 1980. Silver Sands dedicated the remaining portion of the road and provided the surveys and plans to the County.

4. Rights that will be Destroyed.

   
   

   1. In 1991, Clay County adopted the Clay County 2001 Comprehensive Plan (hereinafter referred to as the "Comprehensive Plan"). Pursuant to the Comprehensive Plan the land use category applicable to development of the Property as single-family residential limits density to one unit per 10 acres.

   2. Under the provisions of the Comprehensive Plan adopted in 1990, Phases One and Two of the planned development of the Property cannot be developed for the 13 lots located in Phases One and Two which still remain in Silver Sands' ownership.

   3. The portion of the Property still owned by Silver Sands which has not been developed consists of the four lots in Phase One and the nine lots in Phase Two (hereinafter referred to as the "Subject Property"). The Subject Property does not include the lots in Phase One which were sold between 1981 and 1991 or the acreage conveyed to Clay County in 1997.

   4. If Silver Sands must comply with the Comprehensive Plan, the Subject Property cannot be developed for the 13 lots originally intended on the Subject Property in Phases One and Two of Little Rain Lake Estates.

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 (1991), 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 Clay County Land Development 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 its Comprehensive Plan by Ordinance 92-03 on January 23, 1992.

4. In order to ensure 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 the application of the 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) of the Code:

   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 to exist pursuant to 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. 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 and Zoning 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 and Zoning Department determines that the application is complete. Id.

8. 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.

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 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 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 the 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. Silver Sands' 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. Silver Sands 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, Silver Sands relied upon the review and approval of the construction plans for the portion of Little Rain Lake Road intended to serve Phase One of Little Rain Lake Estates, the review of the development plan for all of Little Rain Lake Estates, and the acceptance of the dedication of that portion of Little Rain Lake Road by Clay County. In good faith reliance upon Clay County’s law and its actions, Silver Sands proceeded to begin development of the Property, to construct Little Rain Lake Road, and to sell lots within Little Rain Lake Estates. It is therefore concluded that the first two criteria for equitable vesting have been proven: Silver Sands acted in good faith and in reasonable reliance upon a valid, unexpired act or omission of Clay County.

14. In light of the expenditures of Silver Sands and the adverse impact of complying with the Comprehensive Plan, it is concluded that the third criterion for equitable vesting has also been proven: Silver Sands 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 Silver Sands has acquired.

15. Based upon a review of the evidence presented at the hearing held before the undersigned on June 25, 1999, it is concluded that Silver Sands 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 dated April 8, 1999, as explained and modified at the hearing, is APPROVED. A Vested Property Certificate should be issued to Silver Sands for the remaining 13 lots of Phases One and Two still owned by Silver Sands.

DONE AND ORDERED this 12th day of July, 1999, in Tallahassee, Leon County, Florida.

LARRY J. SARTIN

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 12th day of July, 1999.

COPIES FURNISHED:

T. R. Hainline, Jr., Esquire Rogers, Towers, Bailey, Jones

& Gay, P.A.

1301 Riverplace Boulevard, Suite 1500

Jacksonville, Florida 32207

Mark H. Scruby, County Attorney Clay County

Post Office Box 1366

Green Cove Springs, Florida 32043-1366

Susan Fraser, Director

Planning, Zoning, and Code Enforcement Clay County

Post Office Box 367

NOTICE OF RIGHT TO JUDICIAL REVIEW

This Final Order is subject to judicial review in the Circuit Court, Fourth Judicial Circuit, in and for Clay County, Florida.

Docket for Case No: 99-002490VR

Orders for Case No: 99-002490VR