STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

1. RAVINES CORPORATION, )

   )

   Petitioner, )

   )

   vs. ) Case No. 99-3955VR

   ) CLAY COUNTY BOARD OF COUNTY ) COMMISSIONERS, )

   )

   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 November 2, 1999.

   APPEARANCES

   
   

   For Petitioner: John Kopelousos, Esquire

   1279 Kingsley Avenue, Suite 118 Orange Park, Florida 32073

   
   

   For Respondent: Frances J. Moss, Assistant County Attorney Clay County

   Post Office Box 1366

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

   Whether Petitioner, K. S. Ravines Corporation, 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 September 17, 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, K. S. Ravines Corporation, with the Clay County Department of Planning and Zoning. Petitioner also filed a Statement of Facts and documentation in support of the Application. On or about September 20, 1999, Respondent, 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 November 2, 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 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, 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. Petitioners presented the testimony of Keith I. Hadden and Steven R. Monahan.

   Respondent presented the testimony of Lynn A. Weber.

   
   

   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. The Applicant, K. S. Ravines Corporation, is the owner of real property located in Middleburg, Clay County, Florida. The Applicant's property, known as the "The Ravines," is being developed as a 435-acre residential and golf course development.

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

      1. On or about June 1, 1990, the Applicant entered into a Purchase and Sale Agreement agreeing to purchase The Ravines.

      2. Subsequent to the execution of the Purchase and Sale Agreement, the Applicant pursued a due diligence effort. In particular, the Applicant contacted Clay County to confirm that The Ravines had been zoned as a Planned Unit Developed as represented by the seller of The Ravines. The Applicant also

         sought to confirm that the property possessed the development capabilities associated with the zoning.

      3. In response to the Applicant's inquiries, Keith I. Hadden, then Director of Development for Clay County, informed the Applicant of the following in a letter dated August 7, 1990:

         The property commonly known as The Ravines, as shown on that certain map of J. M. Ard & Associates, Inc., dated May 30, 1990, (Job No. 3751B), together with a parcel commonly referred to as the McCumber Contracting Parcel as shown on said map, and the access road from County Road 218 to the main property of The Ravines commonly known as Ravines Road (all hereinafter "The Ravines") is currently zoned "PUD" Planned Unit Development. . . .

      4. Mr. Hadden also confirmed that The Ravines was approved for development of 261 single family lots, 49 condominiums, 107 hotel units, and 60 patio homes; a total of 477 units.

   3. Silver Sands' Detrimental Reliance.

      
      

      1. In reliance upon Mr. Hadden's representations as Clay County Director of Planning, the Applicant purchased The Ravines for $10,709,423.00. At the time of the purchase the golf course was valued at $6,900,000.00.

      2. The Applicant purchased 168 single-family lots (44 developed and 124 undeveloped) and 60 undeveloped patio home lots. The undeveloped lots and the existing developed single- family lots purchased by the Applicant were valued at

         $3,943,000.00.

         
         

      3. The Applicant also spent $495,115.00 to make capital improvements to The Ravines after it purchased The Ravines.

   4. Rights that will be Destroyed.

      
      

      1. In January 1992 Clay County adopted a comprehensive plan pursuant to Part II, Chapter 163, Florida Statutes. The Ravines was designated with a land use designation in the plan of "Rural Residential."

      2. The "Rural Residential" land use classification of the Clay County Comprehensive Plan allows development of one residential unit per one acre of land. As a result, The Ravines may be developed at a total of 435 units instead of the 477 units that Clay County informed the Applicant The Ravines could be developed for in the August 7, 1990, letter from Mr. Hadden.

      3. As a result of the "Rural Residential" land use classification, the total developable lots at The Ravines would be reduced from 228 lots to 186 lots, or a reduction of 42 lots. This reduction represents a reduction of 18.4% of the total lots purchased by the Applicant. It is possible that this reduction could result in an 18.4% loss of the $3,943,000.00 paid for the lots, or approximately $496,000.00.

   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 (1997), 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. K. S. Ravines Corporation'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 Applicant 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 Applicant relied upon the August 7, 1990, letter from Mr. Hadden,

    then Director of Planning for Clay County, specifying the number of lots The Ravines could be developed for. In good faith reliance upon this letter, the Applicant proceeded to purchase The Ravines and continue its development. It is therefore concluded that the first two criteria for equitable vesting have been proven: the Applicant 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 the Applicant and the adverse impact of complying with the Comprehensive Plan, it is concluded that the third criterion for equitable vesting has also been proven: the Applicant 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 Applicant has acquired.

15. Based upon a review of the evidence presented at the hearing held before the undersigned on November 2, 1999, it is concluded that the Applicant 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 September 17, 1999, is APPROVED. A Vested Property Certificate should be issued to K. S. Ravines Corporation.

DONE AND ORDERED this 1st day of December, 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 1st day of December, 1999.

COPIES FURNISHED:

John Kopelousos, Esquire

1279 Kingsley Avenue, Suite 118 Orange Park, Florida 32073

Frances J. Moss, Assistant County Attorney Clay County

Post Office Box 1366

Green Cove Springs, Florida 32043

Dale Wilson, Chairman

Board of County Commissioners Clay County

Post Office Box 1366

Green Cove Springs, Florida 32043

Lynn A. Weber, Director of Planning 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 in the Circuit Court, Fourth Judicial Circuit, in and for Clay County, Florida.

Docket for Case No: 99-003955VR

Orders for Case No: 99-003955VR