STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

W-G DEVELOPMENT CORPORATION, )

)

Petitioner, )

)

vs. ) CASE NO. 76-1248VR

) DIVISION OF STATE PLANNING, ) DEPARTMENT OF ADMINISTRATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, on October 4, 1976, in the conference room of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., on the 20th floor of the Exchange National Bank Building, Tampa, Florida, commencing at 9:30 A.M.

APPEARANCES

For Petitioner: Mr. Jacob D. Varn

Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A.

Post Office Box 3239 Tampa, Florida 33601

For Respondent: Mr. Louis F. Hubener

Division of State Planning IBM Building

660 Apalachee Parkway

Tallahassee, Florida 32304 INTRODUCTION

In September of 1973, petitioner, along with Kings Point West, Inc., submitted to respondent their applications for binding letters of interpretation that their rights had vested pursuant to F.S. 380.06(12) so as to allow the development of their projects in Hillsborough County without compliance with the review requirements of F.S. Chapter 380 for developments of regional impact. In November of 1973, respondent issued its determination that petitioner's and Kings Point's rights with regard to the property South of State Road No. 674 (the Sundance Recreational Community and Sun City Center-South) had vested under

F.S. 380.06(12). However, it was determined that petitioner's rights had not vested as to the area known as Future Community, also known as Dominion, lying North of State Road No. 674 (excluding the existing Sun City Center). This determination was the subject of a petition for writ of certiorari to the District Court of Appeal, Second District. That Court remanded the cause to respondent for further proceedings, including the taking of testimony to establish a sufficient record for review. Petitioner thereafter filed with

respondent its petition for a formal hearing in accordance with F.S. 120.57(1), respondent requested the Division of Administrative Hearings to conduct appropriate proceedings, and the undersigned was designated as the Hearing Officer.

A signed document entitled "Stipulation of Facts Upon Which There Is Agreement" was introduced and received into evidence at the hearing as Exhibit

1. This stipulation is attached and is incorporated herein by reference, and the facts stated therein are made a part of the Findings of Fact of this recommended order as if fully set forth herein. For convenience, some of the stipulated facts are set forth below.

   
   

   ISSUE

   
   

   The sole issue in this proceeding is whether the rights of W-G Development Corporation in the land known as Future Community, comprising some 3,750 acres in Hillsborough County, have vested within the meaning of F.S. 380.06(12), so as to exempt petitioner from the planning and review requirements of Chapter 380, Florida Statutes.

   
   

   FINDINGS OF FACT

   
   

   Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:

   
   

   1. In March of 1972, petitioner W-G Development Corporation purchased the remaining Del Webb interests in Sun City Center, an existing residential retirement community of some 1,600 dwelling units, and approximately 11,250 acres of surrounding undeveloped land. Almost immediately, through its consultants and representatives, petitioner began preparation to develop a single master plan for the development of its newly acquired property. The undeveloped land was divided into four parcels. Located South of State Road No. 674 is Sundance Recreational Community (3,150 acres), King's Point West (3,000 acres) 1/ and Sun City Center South (1,350 acres). Future Community lies to the North of State Road No. 674 and comprises 3,750 acres. The total development is to accommodate some 36,495 dwelling units, of which 16,125 are to be located within the residential section of Future Community. An additional

      250 acres in Future Community are set aside for a regional office and commercial center. The various portions of the total development are more particularly described on pages 2 through 10 of the Stipulation of Facts attached hereto.

      
      

   2. The majority of the property acquired by petitioner was unzoned at the time of purchase. While most of the property could have been developed with the zoning existing as of the date of acquisition, petitioner determined that it was in the best interests of all concerned that an overall master plan be prepared and approved due to the magnitude of the proposed development, the potential for future public commitment, financing and the need for overall planning. In May of 1972, petitioner retained the services of architects, engineers and planners to prepare a master development plan which included the rezoning of the total area purchased to community unit (C-U) zoning. Such zoning envisions multiple types of land uses and provides flexibility for the developer and a means of continuous control of the development by the municipality. The master plan or overall site plan entails transportation routes, daily traffic flows, a master drainage plan, sewer and water concepts, density distributions and land uses. Prior to the development of such a plan, an analysis must be made of surrounding land uses, topology, zoning and economic feasibility. After the master plan is approved and the area is rezoned to C-U zoning by the County, the individual

      subdivision site plans must conform to the master plan or the County can reject them.

      
      

   3. In this case, petitioner's consultants and planners worked closely with County personnel and officials in the development of the master plan and request for C-U zoning. Discussions with the County ensued regarding water and sewage treatment, the donation of school sites, traffic patterns, the conveyance of road right-of-ways, densities of specific areas, etc. Hearings were held by the Board of County Commissioners on petitioner's application for rezoning in May and June of 1973. On June 22, 1973, Hillsborough County adopted petitioner's request for rezoning and accepted petitioner's C-U Plan by a unanimous vote. At this meeting, petitioner made certain concessions and commitments concerning the donation of school sites, conveyance of property for the widening of State Road No. 674, densities of particular areas and ingress and egress areas. In order to preserve in documentary form the actions and agreements of the parties made on June 22, 1973, petitioner, King's Point West, Inc. and the County executed a document memorializing the same on September 7, 1973. The effective date of the zoning actions by the County was June 22, 1973.

      
      

   4. In order to assure that public services would be available for the total development, petitioner and Hillsborough County negotiated and entered into certain agreements concerning water and sewer service during the course of preparing the rezoning application. Pursuant to an agreement dated November 6, 1972, and an addendum of February 7, 1973, petitioner paid the County

      $305,850.00 for 2,200 advance sewer and water connection fees to an existing facility authorized for use of residents in Sun City Center. There were no limitations, restrictions or distinctions as to which areas or parts of the total development would be served through these connections. In addition, petitioner agreed to and did construct prior to July 1, 1973, an interim sewage treatment plant at a cost in excess of $300,000.00. This plant is to be used to serve the existing development pending the construction by the County of a regional treatment plant. It is estimated that the regional plant will be built between 1978 and 1981. The County has now assumed the maintenance and operation of the interim facility. No payment for this facility has been made to petitioner by the County. The federal government will fund up to 75 percent of the construction of a regional plant. Petitioner agreed to match the remaining

      25 percent representing a commitment by petitioner of $1,000,000.00 to

      $1,500,000.00. If Future Community were not to be developed, petitioner would not have committed itself for costs of the regional plant. An addition to the existing facility would have served residents of Sun City.

      
      

   5. As of July 1, 1973, the First National Bank of Chicago had loaned petitioner $8,500,000.00 for use in developing the subject project. Approximately $3.2 million was disbursed prior to November 6, 1972 (the date of the water-sewer agreement), and about $5.3 million was disbursed between that date and July 1, 1973. At the time of the loan commitment, the Bank understood that the property North of State Road No. 674 was to be developed, as well as the property South. The Bank considered the project as a single development.

      If petitioner's land holding had been only South of State Road No. 674, the Bank would not have committed itself to the loan. Some of the loan money went for planning purposes. No disbursements were made, by the Bank between June 22nd and July 1, 1973.

      
      

   6. Among the commitments made by petitioner in exchange for the rezoning approval by the County was the conveyance of school sites to the Hillsborough County School Board. Petitioner agreed to convey to the School Board a total of

      195 acres to be used for public school facilities based upon the Board's

      projected need. It was agreed that at least seven of the school sites would be located in the Future Community or Dominion area of petitioner's development.

      If the projected need exceeded demonstrated need, the sites were to be used as recreation or park areas for the benefit of residents. As of the date of the hearing, petitioner had not executed any conveyances of school sites to the School Board.

      
      

   7. Petitioner also agreed, prior to July 1, 1973, to convey to the appropriate governmental body a parcel of land for the widening of State Road No. 674, such obligation to terminate on June 22, 1983. No such conveyance was made as of October 4, 1976. At the time of the hearing, as evidenced by Exhibit 9, petitioner was in the process of constructing and dedicating to the County some 85 acres for a major arterial road in the northern portion of its development.

      
      

   8. Prior to July 1, 1973, petitioner was issued numerous commercial and residential building permits authorizing construction with an estimated value of some eight million dollars. No permits have been obtained for construction within Future Community and no expenditures have been made for physical development, in Future Community, other than for planning.

      
      

   9. Although petitioner's entire development of some 11,500 acres was zoned, planned, engineered and financed as a single project, petitioner will probably not develop Future Community until Interstate 75 is completed, estimated to be in 1981. Petitioner's senior vice-president testified that petitioner would have had two hundred residential units in Future Community by now had prior approval been obtained from respondent.

      
      

      CONCLUSIONS OF LAW

      
      

   10. The sole issue in this case is whether petitioner has vested rights under F.S. 380.06(12) to develop Future Community without compliance with the review requirements of F.S. Ch. 380. The pertinent portions of Section 380.06(12) read as follows:

       
       

       "Nothing in this section shall limit or modify the rights of any person to complete any development that has been authorized. . .by a building permit or other authorization to commence development on which there has been reliance and a change of position and. . . which permit or authorization was issued, prior to the effective date of the rules issued by the Administration Commission. . .

       If a developer has, by his actions in reliance on prior regulations, obtained vested or other legal rights that in law would have prevented a local government from changing those regulations in a way adverse to his interests, nothing in this chapter authorizes any

       governmental agency to abridge those rights. . . For the purpose of this act the conveyance or agreement to convey property to the county, state or local government as a prerequisite to zoning change approval shall be construed as

       an act of reliance to vest rights as determined under this subsection, provided

       such zoning change is actually granted by such government."

       
       

       This section statutorily recognizes and protects vested rights for projects existing or in the process of being developed on or before July 1, 1973, the effective date of the rules referred to in the statute, F.A.C. Ch. 22F-2.

       
       

   11. Basically, petitioner contends that it is entitled to a finding of vested rights for the following reasons:

       
       

       1. The area known as Future Community is a part of a single, interrelated unit which was planned, financed and zoned as such. Since the respondent has previously ruled that the Southern portion of this unit has vested rights, the entire project has vested rights.

          
          

       2. Petitioner's agreement to convey lands to the County and School Board for roads and school sites was a prerequisite to rezoning action and mandates the recognition of vested rights under F.S. 380.06(12).

          
          

       3. Prior to July 1, 1973, petitioner incurred extensive obligations and expenses upon the reliance of the assurances, agreements, approvals and commitments of Hillsborough County; and petitioner therefore has vested rights under the doctrine of equitable estoppel.

          
          

   12. In contrast, respondent argues that

       
       

       1. Due to the lack of expenditures and permits for the Future Community area, this area did not become a part of the total development plan until C-U rezoning was granted. Vesting of a part by previous action of respondent does not compel the vesting of the whole under the circumstances of this case.

          
          

       2. The agreements to convey were not reduced to writing before July 1, 1973. Also, the agreements contain certain conditions precedent and until the occurrence of such, conditions, the agreements to convey do not establish a change of position. Such conditions did not occur prior to July 1, 1973.

          
          

       3. The majority of monies spent by petitioner were expended prior to C-U rezoning approval by the County. Anticipatory expenses are not a basis for the vesting of rights. No expenses were incurred between June 22, 1973 -- the date of rezoning approval, and July 1, 1973 -- the cut off date for the vesting of rights. Thus, petitioner did not change its position in reliance upon an act of government.

          
          

   13. Both parties have submitted extensive and persuasive memoranda of law in support of their respective positions. After careful consideration of the same, as well as the applicable statutes and case law, the undersigned Hearing Officer concludes that petitioner's rights as to the Future Community area have vested.

       
       

   14. Petitioner's project originally involved over 12,000 acres. From its inception in 1972, petitioner and its consultants viewed it as a single project comprised of essential, interrelated parts to be developed in different stages. The plan submitted to the County in support of petitioner's request for C-U zoning is entitled "A Planned Community, Sun City Center, Florida", and includes all four areas with interrelating roads, highways, utilities, drainage and intercommunity buffering, as well as overall site planning. Throughout the

       evolution and final adoption of the master plan, it has been treated by all concerned as a unified, indivisible whole. Financing for the project was sought and obtained on the basis of the entire project. The fact that the vast majority of the monies expended prior to July 1, 1973, went toward development in areas other than Future Community does not defeat the integrated planned unit development character of the project.

       
       

   15. Section 380.06(12) specifically states that "the conveyance or agreement to convey property to the county, state or local government as a prerequisite to zoning change approval shall be construed as an act of reliance to vest rights. . .provided such zoning change is actually granted by such government." Here there is no doubt that petitioner's agreements to convey property to the county for roads and school sites was a prerequisite to rezoning approval and that such approval was actually granted by the County. The fact that the agreements were not reduced to written form until September of 1973 does not remove petitioner from this portion of the statute. The September written agreement specifically recites that petitioner, in anticipation and upon reliance that the rezoning would be approved, did make and agree to certain commitments, stating the same at the time of the public hearing held on June 22, 1973 -- the date of approval. It is obvious from the evidence, both oral and documentary, that the rezoning approval process did not occur overnight. It was the product of long and frequent negotiations between petitioner and representatives of the County. An agreement to convey property is usually conditioned upon the happening of some event. The statute recognizes agreements to convey as well as an actual conveyance. Therefore, the fact that the terms of the agreement have conditions precedent does not release petitioner from the actual commitments made by it or from that portion of the statute construing the same as an act of reliance to vest rights. In consideration for the C-U zoning, petitioner is obligated to convey to the County a portion of its property for roads and school sites. The agreements to convey were a part of the rezoning process, and constitute a substantial change of position in reliance upon the rezoning approval by the County.

       
       

   16. As a basis for rejecting the application of the equitable estoppel doctrine, respondent argues that prior to July 1, 1973, all monies expended and construction permits obtained by petitioner were for use in areas other than Future Community and/or occurred prior to the date of C-U zoning approval. While these facts appear to be substantially correct, respondent's argument ignores the unique nature of and extensive planning required for an integrated community unit zoning proposal. The record in this case is replete with

evidence concerning the extensive amount of planning, financing arrangements and negotiations between petitioner and the County regarding the formation of the final master plan required for rezoning purposes. Whether or not expenditures made and obligations incurred prior to the actual date of rezoning approval can be considered in determining whether rights have vested under 380.06(12) has apparently not been decided by the Courts of Florida. However, there is a recent Attorney General's Opinion on this point. In AGO No. 076-97, rendered on April 28, 1976, the test applied was not necessarily the amount of money expended, but rather a substantial entering upon the performance of a series of acts necessary to the accomplishment of the intended goal. In that case, the Attorney General considered monies expended and acts performed prior to governmental action regarding approval of a mining site plan. Applying that opinion to the facts as set forth above, it is clear that petitioner, through planning, commitments and obligations, had, prior to July 1, 1973, substantially entered upon the performance of a series of acts necessary to the accomplishment of developing all of its property. To deprive petitioner of the rights and

interests acquired by it prior to July 1, 1973, would be unjust, inequitable and a violation of F.S. 380.06(12).

RECOMMENDATION

Based upon the findings of fact and conclusions of law set forth herein, it is recommended that the Division of State Planning issue to W-G Development Corporation a binding letter that it has vested rights to develop Future Community without compliance with Chapter 380 of the Florida Statutes.

Respectfully submitted and entered this 13th day of January, 1977, in Tallahassee, Florida.

DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

ENDNOTE

1/ In late 1972, petitioner sold the parcel known as King's Point West to King's Point West, Inc. Petitioner and King's Point West, Inc. made joint applications to Hillsborough County for rezoning and to respondent for binding letters of interpretation.

COPIES FURNISHED:

Mr. Jacob D. Varn

Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A.

Post Office Box 3239 Tampa, Florida 33601

Mr. Louis F. Hubener Division of State Planning IBM Building

660 Apalachee Parkway

Tallahassee, Florida 32304

Mr. R.H. Whittle, Jr. State Planning Director Division of State Planning

660 Apalachee Parkway - IBM Building Tallahassee, Florida 32304

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF ADMINISTRATION

Division of State Planning

660 Apalachee Parkway IBM Building TALLAHASSEE

32304

(904) 488-1115

February 4, 1977

Jacob D. Varn, Esquire Carlton, Fields, Ward, Emmanuel, Smith & Cutler Post Office Box 3239 Tampa, Florida 33601

Re: Application of W-G Development Corporation for a Binding Letter

of Vested Rights under s 380.06(4)(a), F.S., DOAH Case No. 76-1248VR

Dear Mr. Varn:

The Division of State Planning has reviewed the findings of fact, conclusions of law, and recommended order of the hearing officer in the above referenced matter and based thereon enters the following:

FINDINGS OF FACT

1. The findings of fact entered by the hearing officer are adopted as the findings of the Division of State Planning and incorporated by reference as if fully set forth herein.

CONCLUSIONS OF LAW

1. Petitioner's agreement to convey property to the county for roads and school sites was a prerequisite to the rezoning approval granted by Hillsborough County on June 22, 1973, and the commitment contained therein constitutes an act of reliance and change of position to vest Petitioner's rights to develop Future Community under s 380.06(12), F.S.

   
   

2. Expenditures made prior to the rezoning approval are not a basis for the application of the doctrine of equitable estoppel. Since no expenditures which would constitute a material change of position we're incurred during the period between June 22, 1973, and July 1, 1973, with respect to Future Community, the doctrine of equitable estoppel cannot serve as the basis for the acquisition of any right.

FINAL ORDER

The proposed Future Community development is a development of regional impact under Section 380.06, F.S., and, Chapter 22F-2, Florida Administrative Code. However, the development has acquired vested rights based on an agreement to convey property pursuant to Section 380.06(12), F.S., and is therefore exempt from the provisions of Section 380.06, F.S.

This determination does not obviate the need to comply with other applicable state or local permitting procedures. Any questions regarding this determination may be directed to Louis F. Hubener, Division Attorney.

Sincerely,

Gwjr:Hp

R. G. Whittle, Jr. Director

cc: Mr. John Crislip Mr. Scott Wilson Mr. Jay Landers Ms. Diane Tremor

Mr. John Crislip Planning Director Hillsborough County Planning Commission Post Office Box 1110 Tampa, Florida 22601

Mr. Scott Wilson Tampa Bay Regional Planning Council 3151 Third Ave North

St Petersburg, Fl 33713

Mr. Jay Landers

Department of Environmental Regulation

2562 Executive Center Circle East Tallahassee, Florida 32301

Ms. Diane Tremor Administrative Hearings

530 Carlton Building

Docket for Case No: 76-001248

Orders for Case No: 76-001248