STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
STATE OF FLORIDA, DEPARTMENT ) OF COMMUNITY AFFAIRS, )
)
Petitioner, )
)
vs. ) CASE NO. 87-1443DRI
) RIDGEWOOD PROPERTIES, INC., )
)
Respondent. )
)
RECOMMENDED ORDER
Before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.
David L. Jordan, Esquire, Diana M. Parker, Esquire, and Curtis A. Billingsley, Esquire, of Tallahassee, for the Petitioner.
Christopher C. Skambis, Esquire, and R. Duke Woodson, Esquire, of Orlando, for the Respondent.
Final hearing in this case was held in Orlando on March 8 through 11, 1988, on the Notice Of Violation and Order For Corrective Action issued by the Petitioner, the Department of Community Affairs (DCA), on March 3, 1987, charging the Respondent, Ridgewood Properties, Inc. (Ridgewood), with responsibility for the failure of large-scale development in Maitland accomplished between 1979 and 1985 to undergo development of regional impact (DRI) review. Ridgewood raises several defenses, including: (1) Ridgewood's claim that the right to develop the property without DRI review vested as of July 1, 1973, under Section 380.06(20), Florida Statutes (1987); (2) statute of limitations; (3) equitable estoppel; and (4) laches.
Since Ridgewood did not own any of the property before development was completed and then became owner of only a small part of property that had been developed as Maitland Center, a brief summary of the facts is essential to a basic understanding of the issues raised by the charges and Ridgewood's defenses.
In December, 1985, Ridgewood acquired the assets of, and assumed the liabilities of, CMEI, Inc. The assets included two small parcels remaining from property CMEI had developed as the Maitland Center west of the 1-4 interchange in Maitland, Florida, and, except for the two remaining parcels, later sold to individual owner-developers between approximately 1979 and 1985. One parcel was part of 26 acres CMEI acquired from the City of Maitland in February, 1985 (the 1985 Acquisition Project); the other was a small part of approximately 230 acres which CMEI developed between 1979 and 1984 (Original Maitland Center). CMEI had acquired the 230 acre tract in a corporate merger in 1979 with Cousins Mortgage And Equity Investments (Cousins). Cousins acquired the property in 1977 by foreclosure of a development mortgage loan it had made to the Dye, Downs, et.
al., partnership in 1973. The Dye, Downs group bought the property in 1972 and 1973 for purposes of developing an office park complex west of the Maitland 1-4 interchange which was being planned for construction starting in 1973. The Dye, Downs group arranged to have the property annexed to the City of Maitland and specially zoned to accommodate its plans at the time of purchase. The group began plans for the development and, as mentioned, obtained financing from Cousins, but delay in construction of the 1-4 interchange led to financial difficulties and the Cousins foreclosure. The parties agreed and stipulated that any vested rights the Dye, Downs group might have acquired to develop the
230 acre tract without DRI review run with the land and are now held by Ridgewood.
FINDINGS OF FACT 1/ DCA's CASE-IN-CHIEF
Original Maitland Center
In March, 1979, Cousin's Mortgage and Equity Investments (Cousins) hired the engineering firm of Post, Buckley, Schuh and Jernigan to undertake a broad planning and engineering feasibility analysis of the development of approximately 230 acres west of the 1-4 interchange in Maitland, Florida, as a large-scale office complex (Original Maitland Center). The parties agreed and stipulated that, for purposes of this proceeding, Original Maitland Center is a development of regional impact as defined in Rule 28-24, Florida Administrative Code.
As part of this analysis, Post, Buckley examined the overall zoning of the property and intensity of uses to determine the potential of the property. Post, Buckley designed the layout for water, sewer and utility lines; prepared engineering drawings for the construction of the roadways, swales, and installation of the water, sewer and utility lines; prepared architectural and landscape design standards which would control the design and construction of buildings and landscaping within Maitland Center; prepared the preliminary plats, by phases, for approval by the City Commission; acted as liaison between Cousins and City officials in performance of these duties; and reviewed proposed building designs and landscape plans for compliance with the restrictive covenants and design standards.
Later in 1979, Cousins merged into CMEI, Inc., which became the surviving entity. CMEI continued the employment of Post, Buckley in its engineering capacity.
In or around August, 1979, CMEI and Post, Buckley began negotiations with the City of Maitland for the preparation of the preliminary plat for the first phase of development and the information required thereon by the City. In July, 1980, the City of Maitland approved the first of a series of plats to be submitted by CMEI for the commencement of development of the Original Maitland Center property. Seven more plats of the Original Maitland Center property were presented to and approved by the City between May, 1981, and September, 1983.
In 1979, CMEI began selling parcels of undeveloped land within the Original Maitland Center, in accordance with the plats and plans of development prepared by Post, Buckley. Around that time, CMEI cleared portions of the land and began construction on the internal roadways, the entrance to the Original Maitland Center, the drainage facilities and the installation of the water, sewer and utility lines.
CMEI attached to each warranty deed given to the buyers of parcels within the Original Maitland Center restrictive covenants which established specific design and construction criteria for buildings and landscaping in Original Maitland Center. The restrictive covenants required the buyer to present his plans for the development of the property to CMEI for final approval before construction could begin. The covenants also required the buyer to landscape his property in accordance with the provisions of the "Maitland Center Planning and Design Standards," which were prepared by CMEI and mandated CMEI approval prior to its installation and construction.
Beginning in 1980, CMEI entered into a series of Development Agreements with the City of Maitland under which CMEI was to construct the roadways, install drainage, sewer and water facilities and address off-site traffic impacts by either construction or expansion of roadways or the payment of a specified bond amount in escrow to cover the cost of such off-site improvement. As the terms and conditions of the Agreements were fulfilled by CMEI, the City of Maitland released those lands from the terms of the Development Agreement.
Drainage and Maintenance Agreements were entered into by the City of Maitland and CMEI to delineate the responsibility of each party with regard to the provision of drainage and maintenance of the dedicated easements and roadways. In the Maintenance Agreement, because CMEI intended to expend more monies on the maintenance of the dedicated rights-of-way and easements than the City of Maitland, CMEI paid the initial maintenance costs and was reimbursed the amount the City of Maitland would normally pay. CMEI constructed the roadways, sewer and water facilities and then dedicated them to the City. CMEI was reimbursed a portion of the costs of the construction of the facilities. The provisions of Ordinance 359 mandated that the City reimburse a developer the difference in costs between installing facilities adequate for its subdivision and any oversize facilities the City required the developer to install. The infrastructure in Maitland Center, including roads and water and sewer lines, was constructed by CMEI but now is owned and maintained by the City of Maitland.
In February and March, 1981, Lincoln Properties purchased from CMEI three separate parcels totalling approximately 48 acres in the Original Maitland Center for development as office buildings. The parties agreed and stipulated that, for purposes of this proceeding, Original Maitland Center is a development of regional impact, as defined by Rule 28-24, irrespective of whether Lincoln Properties' development is included in it. The planned development of the Original Maitland Center has resulted in an office complex containing more than two million square feet of office space.
CMEI held itself out to the public and governmental bodies throughout the development process to be the "developer" of the Original Maitland Center.
The 1985 Acquisition Project.
In June, 1984, CMEI began negotiations with the City of Maitland for a parcel of land, consisting of 26.38 acres (the 1985 Acquisition Project), located immediately south of, and adjacent to, the Original Maitland Center. On February 26, 1985, CMEI purchased that parcel. CMEI's role in the development of the 1985 Acquisition Project was generally the same as its role in the development of Original Maitland Center.
The DCA did not prove (and does not contend in this proceeding) that the 1985 Acquisition Project, in and of itself, is a development of regional impact, as defined by Rule 28-24, Florida Administrative Code.
Whether Original Maitland Center And The 1985 Acquisition Project Should Be Aggregated.
Neither at the time of the purchase of the 1985 Acquisition Project nor at any time thereafter did CMEI own or have a majority interest in any property within Original Maitland Center, other than 8.5 acres which had not been sold off (Tract 5 of Section II).
CMEI designated the 1985 Acquisition Project on the preliminary plat, permit applications and future correspondences as Maitland Center, Section XV. The Preliminary Plat of Maitland Center, Section XV, was approved by the City of Maitland on February 26, 1985. After the plat approval, CMEI constructed the roadway and installed the sewer and water lines to the property. Since its purchase by CMEI in 1985, the Section XV parcel has been in name and in fact an addition to the Original Maitland Center development. CMEI made no significant effort to represent this parcel as a separate or distinct project, independent of the Original Maitland Center project.
At the time of the purchase of Section XV, CMEI owned the 8.5 acre parcel of land in the Original Maitland Center property known as Tract 5. When the infrastructure was completed, CMEI sold all of the property between the new road (Southhall Lane) and Keller Road, the westernmost boundary of Maitland Center. Each parcel sold was subject to the terms and conditions of the Maitland Center Planning and Design Standards and the restrictive covenants that controlled the development of the parcels within the Original Maitland Center. CMEI retained ownership of a small parcel within Section XV which was adjacent to Tract 5 in Section Two of the Original Maitland Center.
Original Maitland Center voluntarily shares with the 1985 Acquisition Project infrastructure constructed by CMEI. Southhall Lane was built to transverse Tract 5 of Section II of Original Maitland Center to give the property owners in both the 1985 Acquisition Project and Tract 5 access to public roadway. This access was not available to Tract 5 owners before the purchase of the 1985 Acquisition Project and the construction of Southhall Lane.
The DCA did not prove that the 1985 Acquisition Project, if aggregated with just Tract 5 of Section II of Original Maitland Center, would be a development of regional impact, as defined by Rule 28-24, Florida Administrative Code.
Ridgewood's Interest In Maitland Center.
Physical development of the 1985 Acquisition Project began in early 1985 and was completed by the fall of 1985.
On December 9, 1985, CMEI transferred to the Respondent, Ridgewood Properties, Inc., (Ridgewood) its assets, including 8.5 acres within the Original Maitland Center and 5.0 acres within the 1985 Acquisition Project, and its liabilities in exchange for Ridgewood stock which was transferred to CMEI's parent, Pier I Imports, Inc. On December 30, 1985, Ridgewood entered into an Indemnity Agreement with Pier I Imports and Sunbelt Nursery Group in which Ridgewood, as the successor in interest to CMEI, agreed to indemnify and hold the other parties wholly and completely harmless from all liabilities, costs,
damages and expenses incurred by them for any act, omission or obligation which occurred during CMEI's corporate operations.
Ridgewood has performed no activity defined as development in Section 380.04, Florida Statutes, in connection with the parcels it acquired from CMEI, and it still owns them.
RIDGEWOOD'S VESTED RIGHTS DEFENSE
Legislative History.
The provisions of Chapter 380, Florida Statutes, on development of regional impact review originally were enacted in 1972 upon the adoption of Committee Substitute for SB 629, the Environmental Land and Water Management Act, and took effect July 1, 1973.
As originally written, the Florida Land and Water Management Act of 1972 contained a general statement concerning landowners' rights.
Senator Bob Graham was a cosponsor of the legislation. When he appeared before the Senate Ways and Means Committee on March 6, 1972, the topic of vested rights was discussed at length. At that time the only vested rights provision in the bill was in the portion of the bill dealing with areas of critical state concern. The discussion started with a question from Senator Haverfield:
Senator Haverfield: Senator, if you have a local land use plan, say, in the
county, and this land use plan provides for general criteria in developing the area.
And the developer goes in to the ordinance of zoning and land use and all of this and develops the property and -- then when does this come in to play with regards to a finding on a state level that they can't use the property for those purposes. I'm assuming that orderly development or criteria was properly placed on the property at the very outset of the existing long range plan for this development. Does this change all of that? Which takes priority?
Senator Graham: Here's the process.
* * *
Now second, you read subsection 16 immediately following. It says, if you have a vested right by virtue of the kind of development permit that you received, building permit, or other authorized permit for this development, or if you had in any other way acquired vested rights, then you are protected under whatever the regulations were.
Senator Haverfield: Senator, again under the vested rights, building permits and all of those. If you get a building permit, then, you know, it's all pretty
well over. You know, you met all of the criteria, you're entitled to a building permit. You got your financing, and you're [sic] development really is tantamount to reality. That's not what we're concerned with. I think it would take a long time to get appropriation. To go through all the agencies ...
But what I am directing my questions to is, if you're entitled to a building permit and you've got a piece of property that's ready to develop and you met all the criteria; water pollution, do all the various things. If you feel it is not quite right you go ahead and develop it.
At that particular point you're paying taxes and caring for ... you have a right to rely upon what that zoning is, what that land use plan is, and then the state agency comes in and just overturns that. No, we don't think that is the correct use, that ought to be a park, ought to be a playground, or ought to be a single family where it's designated high density or multiple family housing. What happens in that area? Where does the property owner get his protection.
Senator Graham: This subsection 16 is a connocation [sic] of the current law. And back to that point. For instance, if you were in Dade County and you had reached the point, by virtue of reliance upon the existing law, then Dade County could not change the zoning, or change the subdivision law or whatever it was effecting it. This is how the current law states what your rights are.
The same applies under this first statement. If you reach the point that does not require the acquisition of this building, you can substantially rely upon the Dade County law to the point which you have vested rights. You're protected under the provisions as made, existing prior to the designated area of state concern and prior to development regulations. The same standards apply today until some individual county may change it some.
Senator Haverfield: Senator, wouldn't you agree with me that you really don't have vested rights in zoning.
Senator Graham: You have that power. The courts have ruled that once you have made a material action, material reliance on that zoning that you can apply a vested right, and the local government cannot change your land use regulation.
Senator Haverfield: But this says, if you have acquired vested rights, and shifts the burden to you to prove it, you can't prove it. That's a long series of litigation.
Senator Graham: That is exactly the situation today. Let's say you own some property. Let's say you've got it zoned, zoned what? Apartments. The county now wants to change the zoning ordinance of the county. Question: Do you as a developer, you reach the position that the county is estopped from changing the land use regulations on you because the actions which you took in reliance on the fact that your property was zoned apartments.
Now, if the answer to that question is, yes, if they are estopped, the state is estopped under subsection 16. If the answer is, no, you have not taken those kinds of steps which the courts have deliniated [sic] as being necessary to achieve vested rights, then, no, you haven't achieved them. The same standards for the state currently apply.
Senator Haverfield: Senator, I've been on both sides of the fence. I've represented municipalities in zoning cases and also in private practice representing clients that felt that a change in zoning was ... I don't really feel you have any vested rights in zoning up until the time you get your permit. I think there is a whole line of cases just holding, and then you're put to the test of what is the character of the area. And then you get in a lot of different areas of factual situations that apply to the property, such as the litigation. But it would seem to me if someone comes in and relys on existing zoning and existing land use claims, and he invests a substantial amount of money in this for future development, and then he gets ready to go ahead and develop that, and the state comes in and says, no, there is a critical concern here. I don't even know, I don't know that the ... but it should have to do with the laws of land use. But where does this leave the property owner except to go into court and litigate.
Senator Graham: Exactly the same position he is. Instead of being the state it is the county or city that are changing it.
Senator Haverfield: No, there is a difference, Senator, because the county or
the state, that's their plan. They have resolved that this is a proper use for this property. The state hasn't done that.
This is a big mistake ...
And there is long line of cases, that
I'm sure you're familiar with, that says, a county or governmental entity has control of zoning. Once they go ahead and set a pattern that's their pattern. And the property owners or the ... of that same area or have property, the character of the area has been established, then not be allowed, that use becomes contested. I don't think that's true.
If another intervening zoning authority comes in on a state level or federal level, I don't believe they have made that commitment, nor have they come in and established the character of the area. I think there is an acute distinction here and this is what bothers me.
Senator Graham: Senator, would read
... begins on page 16, line 15. "If the developer has by his actions in reliance on prior relations [sic] obtained vested rights under law which would have prevented
a local government" -- in other words, if he had a situation that the City of Miami, or that the County of Broward could not have changed those regulations and the way that worked. Nothing in this act authorizes any governmental agency to break those rights.
So the same -- what we're trying to do here is to say, the same standards would apply if the local government tried to change it, that apply if the state tries to change it.
Senator Haverfield: Senator, are you acquainted with these words, vested rights, in this bill?
Senator Graham: This is a codification of current Florida law on this subject.
This is the terminology which the courts have used. If this committee would like to propose an amendment of some other
language -- this is what we're trying to say. If the local government can't do it to you, the state can't.
At this point, the subject of discussion abruptly changed, and there was no evidence of any other discussion of vested rights in either the DRI or the area of critical state concern portion of the statute during the legislative process.
Language concerning vested rights was added to the DRI section of the bill as subsection (12)(now Section 380.06(20), Florida Statutes) on March 28, 1972. As originally drafted the vested rights provision in subsection (12) required a showing of "substantial" reliance and "material" change of position
based on an authorization to commence development. This provision was amended in committee, and the terms "substantial" and "material" were deleted.
Subsection (12) of the bill was adopted and the language has not been changed to this date, although language was added in 1974. See Footnote 3, Conclusions Of Law, paragraph 28, above.
Agency Policy On Vested Rights.
There is no DCA rule on vested rights under Chapter 380. But, over the years, the DCA and its predecessor agencies have made decisions on vested rights on a case-by-case basis. Out of this process, certain basic tenets of agency policy have emerged.
The original DRI law did not authorize the DCA's predecessor agency, the Division of State Planning, Department of Administration (DSP), to issue binding letters of interpretation to determine vested rights. However, in 1973, DSP implemented a procedure whereby developers could present a factual situation and ask the DSP for an advisory letter of interpretation on vested rights (LIVR). In 1974, the Legislature amended Chapter 380 to give the DSP authority to issue binding letters of interpretation to determine vested rights status (BLIVR).
Some of the advisory opinions and early BLIVRs seem to have accepted zoning or re-zoning, with reliance and change of position, as sufficient to confer vested rights to development without DRI review. For example, BLIVR 474-
123 gave a development called Amelia Woods vested rights when the only "authority to commence development" apparently was zoning approval. Similarly, in BLIVR 874-015, Lorenzo Lakes was given vested rights status apparently based only on re-zoning. But the factual bases for these early BLIVRs are not detailed, and the BLIVRs do not indicate whether zoning, or re-zoning, was in fact the only authority the local jurisdictions required to commence development.
Other BLIVRs and LIVRs seemed to require more than zoning or re-zoning for vesting of rights to develop property without DRI review. Several developers who were given vested rights had planned unit development (PUD) approval from the local jurisdiction: The Meadows, LIVR 1074-071; and Indian Springs. But, again, the evidence does not disclose whether PUD approval was sufficient to allow development to commence under the local requirements.
Other BLIVRs and LIVRs proceeded on still other facts. In LIVR-150, BLIVR 1074-150, the Millstream/Vadia developer had not only rezoning but also a land use plan approval. In addition, it had dedicated land to the local government in exchange for the re-zoning. See Footnote 3, at paragraph 28, Conclusions Of Law, below. In BLIVR 478-007, issued in 1978, the developer of Dunn's Terminal, a port facility, had various approvals, including a site plan showing location of warehouses to be constructed on the property in question, and permits to begin dredge and fill activities.
By the late 1970s, the DCA and its predecessors particularly through its then general legal counsel, began to solidify agency policy in the area of vested rights. In addition to requiring evidence of a formal grant of authority to commence development, the DSP (and, later, the DCA) required formal local approval of a development plan from which it could be determined what development the local jurisdiction was allowing to be commenced. Under this policy, for example, local PUD approval could be sufficient to vest rights to
develop without DRI review, depending on what specifically is signified by the PUD approval under the local ordinances. This policy has not changed through the 1980s.
The current DCA policy is that a building permit for one building will be considered to be "authorization to commence development" of an entire plan of development only if the plan of development formally has been approved by the local jurisdiction and if the building is part of the approved plan of development.
The Factual Basis Of Ridgewood's Vested Rights Claim.
To summarize what already has been found, Ridgewood got its interests in Maitland Center from CMEI, which got its interests by merger with Cousins Mortgage and Equity Investments, which got its interests by foreclosing a mortgage given by the Dye, Downs group. The parties agreed and stipulated that any vested rights the Dye, Downs group might have obtained to develop Original Maitland Center without DRI review run with the land and are now held by Ridgewood.
The Dye, Downs group negotiated the purchase of the property that was to become Original Maitland Center in 1971 and 1972. The owner of 230 acres of the property, then a citrus grove, was S. C. Battaglia. At the time, the property was just outside the City of Maitland, west of 1-4 where the new Maitland interchange was being planned.
The Dye, Downs group planned a large-scale office complex on the property. To accomplish this, they planned with Battaglia to have the property annexed to the City and zoned specifically to accomplish the development planned by the Dye, Downs group. Conditioned on the annexation and desired zoning, the Dye, Downs group contracted to buy the property at a price reflective of the new zoning (and much higher than its value as citrus grove.) The contract was on
130 acres of the total tract with an option to purchase an additional 100 acres on similar terms and conditions.
During the annexation/zoning process in 1971, the Dye, Downs group presented to the City maps showing the location and densities of the various types of uses they planned to make of the property as part of the office complex. Essentially, these were the equivalent of zoning maps.
In December, 1971, the City of Maitland annexed the Battaglia property and approved the requested zoning in the form of new zoning regulations specifically designed for Original Maitland Center and a zoning map which corresponded to the maps that the Dye, Downs group had presented to the City. The zoning was for particular densities for particular uses (in one case for one particular use).
The Dye, Downs group also asked the City to give other assurances in addition to annexation and the requested zoning. The City acceded to several of these requests. But Ridgewood did not prove that the City agreed that the owners of the property would be allowed to commence development on the property within the approved zoning restrictions without any additional approvals other than building permits. To the contrary, the City of Maitland had recently enacted subdivision regulations that required, among other things, preliminary and final plat approval. The Maitland Center development was not exempted from the subdivision regulations.
In January, 1972, the Dye, Downs group closed on the purchase of the
130 acres from Battaglia under the contract it had negotiated.
The City of Maitland approved a building permit for a temporary office building within Original Maitland Center in October, 1972. The building was constructed on property east of Interstate Highway 4 which was acquired in the same transaction as the land west of 1-4 but was not part of the office park development planned west of 1-4. The building was constructed east of 1-4 because there was no access to the remainder of the property to the West of 1-4.
The land on which the building was constructed was given a conditional land use permit because the use was inconsistent with the underlying residential zoning. The building for which the building permit was issued in 1972 was designed to be moved and used as a tennis club within Original Maitland Center. But the building never was moved, and a subsequent owner later got City permission to extend the non-conforming use of the land to accommodate the building.
Later, still before July 1, 1973, the Dye, Downs group developed more detailed plans for development of portions of what was to become Original Maitland Center and shared these plans with the City. These included plans for a multifamily residential development given to the City in January, 1973. These plans were not presented to the City for approval and were not approved by the City.
Still later, but still before July 1, 1973, the Dye, Downs group prepared a preliminary plat of development of what was to become Original Maitland Center. This preliminary plat was for development in accordance with the City's new zoning for the property. It was presented to the City, but it was not proved that it was approved by the City before July 1, 1973.
In early 1973 the Dye, Downs group also prepared a schedule of planned construction of what was to become Original Maitland Center. This schedule was presented to the City before July 1, 1973, for the City's use in planning future construction of roads and other infrastructure in the area. It was not presented for City approval and was not approved by the City.
In May, 1973, the Dye, Downs group applied to amend the zoning and zoning map to accommodate a shopping center. The amendment was granted. The zoning map for Original Maitland Center was incorporated in the Comprehensive Plan the City finalized and filed with a predecessor of the DCA in July, 1973. In October, 1973, the group closed on the purchase of the additional 100 acres on which it had an option. Approximately ten acres of what became Original Maitland Center was purchased by CMEI from other owners in 1983.
RIDGEWOOD'S LACHES DEFENSE
In October, 1979, in accordance with the City's records retention schedule, the City of Maitland destroyed certain documents that might have pertained to the Maitland Center development and Ridgewood's vested rights claim. Ridgewood was unable to prove exactly what documents were destroyed or whether they would have helped prove its vested rights claim. All ordinances and minutes of meetings that would have evidenced formal city approvals of development in Maitland Center were preserved and were available to Ridgewood.
Up to 1979, there had been no large-scale development in Original Maitland Center against which the DCA or its predecessor agencies could have
been expected to bring an action for injunctive relief in circuit court or otherwise sought compliance with the DRI review provisions of Chapter 380. Ridgewood did not prove that the DCA or its predecessor agencies had knowledge of specific plans for imminent development of Original Maitland Center before October, 1979. To the contrary, as found, the earlier plans for development of Original Maitland Center foundered and ended in the period between 1973 and 1977, and no development went forward. It was only after Cousins foreclosed the Dye, Downs mortgage and later merged into CMEI; Inc., that plans for development began again. This recommencement of plans for development of Original Maitland Center happened to roughly coincide with the destruction of certain records under the City of Maitland's records retention schedule, some of which might have been relevant to Ridgewood's vested rights defense. If Ridgewood was prejudiced in its ability to present its vested rights defense, it was not the result of delay by the DCA or its predecessor agencies in attempting to compel DRI review, it was the result of the delay in the development of Original Maitland Center.
RIDGEWOOD'S EQUITABLE ESTOPPEL DEFENSE
In February and March, 1981, Lincoln Properties purchased three separate parcels from CMEI in the Original Maitland Center for development as office buildings. In June, 1981, Lincoln Properties filed with the Department of Veteran and Community Affairs (DVCA), a predecessor of the DCA, an application for a binding letter of interpretation of the DRI status of 200 and
300 Lincoln Place. Correspondence was exchanged between DVCA and Lincoln Properties requesting the provision of additional information for Department consideration in the binding letter request. At DVCA's request, Lincoln Properties included the office building to be designated as 100 Lincoln Place in their request for a binding letter. Lincoln Properties responded to DVCA's request on July 27, 1981, and attached three drawings which depicted the general location of the Original Maitland Center with regard to the surrounding communities (Location Map), the placement of 100, 200 and 300 Lincoln Place buildings with regard to each other (second drawing) and the zoning of parcels of land surrounding the proposed Lincoln Properties development (Existing Land Use Map). This letter referenced Lincoln's purchase of the property from CMEI, Inc., but gave no details regarding the amount or type of existing or proposed development within the Original Maitland Center or other properties owned by CMEI.
DVCA requested information from the East Central Florida Regional Planning council (ECRPC), the City of Maitland and the City of Altamonte Springs, in accordance with its usual practice of seeking information related to a request for a binding letter. In two letters to DVCA, the City of Maitland referenced CMEI as the developer of the Original Maitland Center, an office/residential park in which the Lincoln Properties projects were located. Neither letter indicated the overall size of the Original Maitland Center nor the amount, type or placement of existing or proposed development within the Original Maitland Center.
On September 14, 1981, DVCA issued a binding letter of interpretation to Lincoln Properties for DRI status for 100, 200 and 300 Lincoln Place which found that the proposed development of these office buildings by Lincoln Properties did not result in a substantial impact on the health, safety and welfare of the citizens of more than one county and, therefore, was not a DRI.
Between July, 1981, and April, 1986, the DCA and its predecessor agencies received inquiries regarding the DRIP status Original Maitland Center.
Neither the ECRPC, the City of Maitland nor the other persons who inquired about the development supplied specific facts regarding the overall size of the Original Maitland Center, the amount of development or whether the project was being developed as a single project under one master plan of development or individual projects being developed by unrelated developers.
Between 1978 and 1984, the DRI staff of the DCA and its predecessor agencies consisted of approximately five planners, one section administrator, one bureau chief and one division director (who also was responsible for two other bureaus). During that time, the agency experienced a high rate of turnover and reassignments in personnel. The staff was responsible for attempting to monitor hundreds of DRI developments in the state, as well as for discovering potential DRIs. Yet, it had no statutory authority administratively to compel compliance with DRI requirements.
The agency attempted to follow a practice of routinely sending a monitoring letter when it received information about a possible DRI. In this case, the DCA did not send CMEI a monitoring letter until December 12, 1984. The letter advised CMEI that the DCA was concerned that the Original Maitland Center project might be a DRI and that the proposed purchase and development of
the 1985 Acquisition Project could be a DRI. The DCA requested the submittal of an application for a binding letter of interpretation of the DRI status.
On January 2, 1985, CMEI replied to the monitoring letter but refused to seek a binding letter of interpretation or pursue DRI review, asserting possession of vested rights for the development. CMEI requested further response, representing that the DRI status was critical to CMEI's decision to proceed with the 1985 Acquisition Project. The DCA did not respond, and CMEI did not inquire again.
During 1986, there were numerous contacts between the DCA and Ridgewood or its attorney concerning the DRI status of Maitland Center. Ridgewood refused to apply for a binding letter of interpretation of vested rights but forwarded to the DCA documentation in support of its claim of vested rights and requested an informal determination. The eventual result was the Notice Of Violation and Order For Corrective Action which began this proceeding.
At all times, CMEI knew generally of the DRI statutes and rules. At no time did CMEI initiate contact with the DCA or its predecessors advising of its plans to develop Original Maitland Center or the 1985 Acquisition Project. CMEI also knew of the procedure for obtaining a binding letter of interpretation of vested rights. It was unreasonable for CMEI to take the position that its claimed vested rights not to undergo DRI review were so clear that it was not necessary to obtain a BLIVR to assure itself of its vested rights.
CONCLUSIONS OF LAW
DCA's Case-In-Chief As To Original Maitland Center.
Section 380.11, Florida Statutes (1987), authorizes the Petitioner (the DCA) to bring an administrative action to enforce compliance with Chapter
development of regional impact (DRI) regulations. Before October 1, 1985, this administrative remedy was not authorized by statute; before that date, Section 380.11 provided only for injunctive relief in circuit court. Chapter 85-55, Laws of Florida (1985).
Section 380.06(1), Florida Statutes:
DEFINITION. -- The term "development of regional impact," as used in this section, means any development which, because of its character, magnitude, or location, would have a substantial effect upon the health, safely, or welfare of citizens of more than one county.
Section 380.06(5), Florida Statutes (1987), provides in pertinent part:
1. A developer who is required to undergo development-of-regional-impact review may undertake a development of regional impact if the development has been approved under the requirements of this section.
Section 380.031(2), Florida Statutes (1987), states: "'Developer' means any person, including a governmental agency, undertaking any development as defined in this chapter."
Section 380.04, Florida Statutes (1987), provides in pertinent part:
The term "development" means the carrying out of any building activity or mining operation, the making of any material change in the use or appearance of any structure or land, or the dividing of land into three or more parcels.
The following activities or uses shall be taken for the purposes of this chapter to involve "development," as defined in this section.
A reconstruction, alteration of the size, or material change in the external appearance of a structure on land.
A change in the intensity of use of land, such as an increase in the number of dwelling units in a structure or on land or a material increase in the number of businesses, manufacturing establishments, offices, or dwelling units in a structure or on land.
Alteration of a shore or bank of a seacoast, river, stream, lake, pond, or canal, including any "coastal construction" as defined in s. 161.021.
Commencement of drilling, except to obtain soil samples, mining, or excavation on a parcel of land.
Demolition of a structure.
Clearing of land as an adjunct of construction.
Deposit of refuse, solid or liquid waste, or fill on a parcel of land.
As a matter of law, the Respondent (Ridgewood) is the developer of both Original Maitland Center and the 1985 Acquisition Project. As found, in 1985 Ridgewood voluntarily assumed liability for all acts, omissions and obligation of CMEI, Inc. Generally, the mere acquisition of corporate property does not make the buyer liable for the purchased corporation's liabilities. Sens v. Slavia, Inc., 304 So.2d 438 (Fla. 1974). Although, corporate law traditionally does not impose the liabilities of the selling predecessor upon the buying successor corporation, when the successor corporation expressly or impliedly assumes the obligations of the predecessor, it alone is responsible. Bernard v. Kee Mfg. Co., Inc., 394 So.2d 552 (Fla. 2d DCA 1981), approved in part, 409 So.2d 1047, 1049 (Fla. 1982). As found, CMEI was the developer of both Original Maitland Center and the 1985 Acquisition Project. Ridgewood now is liable if CMEI should have undergone DRI review.
As found based on the parties' stipulation for purposes of this case, Original Maitland Center is a DRI, with or without consideration of the 1985 Acquisition Project. The DCA did not prove that the 1985 Acquisition Project, in and of itself without reference to Original Maitland Center, is a DRI.
Whether Original Maitland Center And The 1985 Acquisition Project Should Be Aggregated.
Section 380.0651(4), Florida Statutes (1987), provides:
The state land planning agency shall recommend to the Administration Commission specific criteria to be used in determining whether two or more developments shall be aggregated and treated as a single development under this act. The Administration Commission shall adopt appropriate aggregation criteria by rule no later than March 1, 1986. The rule shall specify criteria that, in addition to common ownership or majority interest, shall require that one or more of the following factors must exist: proximity, sharing of infrastructure, common advertising or management, or master plan or other corroborative documentation which includes each project in a unified plan of development.
Rule 28-11.001, Florida Administrative Code, provides:
The purpose of this rule chapter is to establish specific criteria to determine whether two or more developments shall be aggregated as a single development and evaluated as such pursuant to the guidelines and standards establishing
thresholds for development-of-regional- impact review. This rule is intended to be used to aggregate those developments which may be represented to be separate and distinct developments but which, because of the existence of a unified plan of development, should be considered as a single development.
This rule applies to determine whether the 1985 Acquisition Project should be considered apart from Original Maitland Center.
Rule 28-11.002, Florida Administrative Code, provides: As used in this rule chapter:
(1)(a) "Common ownership" means that the legal free simple interest or equitable interest in two or more parcels of land is vested in the same person at the time:
physical development of the parcels is initiated; or
a master plan is submitted for parcels.
(b) "Common ownership" may also include ownership of a leasehold estate in the developments which exceeds thirty (30) years; provided, however, that the fee owner of land subject to a ground lease exceeding thirty (30) years should not have "common ownership" under this rule unless the fee owner retains an equitable interest in or ability to control the developments.
"Development" means those activities specified in Section 380.04, Florida Statutes (1985), the unless otherwise indicated, refers only to those developments sought to be aggregated pursuant to this rule chapter.
"majority interest" means more than fifty percent of the ownership in two or more developments is held by the same person at the time:
physical development of the parcels is initiated; or
a master plan is submitted for the parcels.
"Masterplan" means either of the following:
a drawing or diagram, or a series of drawings or diagrams that, when considered together, graphically depict an integrally planned project, including a project that is to be constructed as a phased development, and which has been formally submitted by a developer or owner to a governmental agency; or
a drawing or diagram, series of
drawings or diagrams, or a recorded or other legally binding written representation, which is used to establish the form of physical development or to dispose of parcels of an integrally planned project in a local governmental jurisdiction that does not require submission of a master plan as defined in subparagraph (a) above for the developments sought to be aggregated.
"Person" means an individual, corporation, governmental agency, business trust, estate, trust, partnership, association, two or more persons having a joint or common interest, or any other legal entity.
"Proximity of developments" means that part of the boundary of a parcel of land is co-terminous with a part of the boundary of another parcel of land. Parcels of land separated by a publicly owned park, a right-of-way for a highway,
road, railroad, canal or utility or body of water, watercourse, other geographical division of a similar nature, shall be considered to be in proximity unless such separation precludes reasonable access from one parcel to another.
"Sharing of infrastructure" means the voluntary joint use by two or more developments of internal roadways, internal recreational facilities or parks, amenities; or water, sewage or drainage facilities specifically constructed to accommodate the developments sought to be aggregated. Shared infrastructure does not include:
Any joint or shared use of private or public infrastructure required by a local government or regulatory agency, or as a result of governmental initiatives to effectuate community-wide objectives; including construction of a right-of-way to implement a city or county transportation plan;
Any joint or shared use of public recreational facilities or parks; or
Any joint or shared use of publicly financed drainage or stormwater management facilities, roadways or water or sewer facilities.
Rule 28-11.003, Florida Administrative Code, provides: Determination of Aggregation.
Two or more developments shall be aggregated when they evidence the existence
of a unified plan of development and either common ownership or majority interest.
A unified plan of development shall be deemed to exist when two or more developments are in proximity to one another, share infrastructure, and evidence the existence of a master plan of development.
Applying Rules 28-11.002 and 28-11.003, Original Maitland Center and the 1985 Acquisition Project should not be aggregated. Original Maitland Center and the 1985 Acquisition Project are in proximity to one another and share infrastructure. But at the time CMEI planned for development of, and started physical development of, Original Maitland Center, CMEI did not own any interest in the 1985 Acquisition Project. There could not have been a "unified plan of development"; nor could there have been "common ownership." The 1985 Acquisition Project was an addition to Original Maitland Center after CMEI finished its development of, and sale of all but one of the parcels of land in, Original Maitland Center. The 1985 Acquisition Project was not developed under a "unified plan of development" with Original Maitland Center, except perhaps the unsold parcel, Tract 5 of Section II.
The DCA did not prove that the 1985 Acquisition Project is a DRI; nor did it prove that the 1985 Acquisition Project, together with just Tract 5 of Section II of Original Maitland Center, is a DRI. Since the 1985 Acquisition Project cannot be aggregated with Original Maitland Center, the remaining questions involve Ridgewood's defenses as to Original Maitland Center.
Statute Of Limitations.
There is no statute of limitations specifically applicable to this administrative enforcement proceeding. Absent any evidence of legislative intent that it should be barred by a statute of limitations, this proceeding is not barred by any statute of limitations. See Farzad v. Department of Professional Regulation, 443 So.2d 373, 375 (Fla. 1st DCA 1983).
This proceeding is not barred under the principles underlying the decision in Curtiss-Wright Corporation v. Diaz, 507 So.2d 1197 (Fla. 3d DCA 1987). In that case, the court held that a cause of action (products liability) dismissed by summary judgment on the ground that the statute of repose (twelve years from date of sale) was not revived by an amendment to the statute of limitations eliminating the twelve-year statute of repose for products liability actions. In this case, there never has been a statute of limitations applicable to this administrative proceeding, and this action never has been extinguished by a statute of limitations.
Before the administrative remedy was created by Chapter 85-55, Laws of Florida (1985), effective October 1, 1985, injunctive relief was available in circuit court under Section 380.11, Florida Statutes (1983). Prior to 1974, Chapter 95, Florida Statutes did not apply to actions brought by the state or its agencies. However, Chapter 74-382, Laws of Florida (1974), made Chapter 95 specifically applicable to civil actions brought by the state. See Section 95.011, Florida Statutes (1975). Section 95.11(3)(f), Florida Statutes, requires actions founded on a statutory liability to be brought within four years. But failure to bring an action in circuit court for injunctive relief
within four years would not bar the DCA's administrative enforcement proceeding under current Section 380.11 under the Curtiss-Wright Corporation v. Diaz rationale.
Laches.
In light of the decisions in Farzad v. Department of Professional Regulation, supra, and Devine v. Department of Professional Regulation, 451 So.2d 994 (Fla. 1st DCA 1984), it is doubtful whether laches is available to Ridgewood as a legal defense in this case. 2/ Even if it were, the defense would fail on the merits.
Laches is an equitable defense available when it would be inequitable to allow a party to assert a claim against another party because unreasonable delay in asserting the claim operated to the undue prejudice of the party against whom it is asserted. See generally Van Meter v. Kelsey, 91 So.2d 327 (Fla. 1957); Wing v. Wing, 464 So.2d 1342 (Fla. 1st DCA 1985). Loss of evidence due to lapse of time can provide the element of prejudice necessary for laches to apply. Cone v. Benjamin, 27 So.2d 90, 157 Fla. 800 (Fla. 1946); Thrasher v. Ocala Mfg. Ice & Packing Co., 15 So.2d 32, 153 Fla. 488 (Fla. 1943).
As stated in Compass Lake Hills Development v. State, Department of Community Affairs, 379 So.2d 376, 381 (Fla. 1st DCA 1979)(footnote 2): "[Chapter 380] imposes no affirmative duty upon the land planning agency to
'seek out' developments in progress in the state ... [and] absent such a duty it cannot be ... barred by laches..."
In addition, as found in this case, if the City of Maitland destroyed any documents relevant to Ridgewood's proof of its vested rights defense, it destroyed them in October, 1979, in accordance with its records retention schedule. Up to that time, there had been no large-scale development in Original Maitland Center against which the DCA or its predecessor agencies could have been expected to bring an action for injunctive relief in circuit court or otherwise sought compliance with the DRI review provisions of Chapter 380. Nor did Ridgewood prove that the DCA or its predecessor agencies had knowledge of specific plans for imminent development of Original Maitland Center before October, 1979. To the contrary, as found, the earlier plans for development of Original Maitland Center foundered and ended in the period between 1973 and 1977, and no development went forward. It was only after Cousins foreclosed the Dye, Downs mortgage and later merged into CMEI, Inc., that plans for development began again. This recommencement of plans for development of Original Maitland Center happened to roughly coincide with the destruction of certain records under the City of Maitland's records retention schedule, some of which might have been relevant to Ridgewood's vested rights defense. If Ridgewood was prejudiced in its ability to present its vested rights defense, it was not the result of delay by the DCA or its predecessor agencies in attempting to compel DRI review, it was the result of the delay in the development of Original Maitland Center.
Finally, laches is an equitable defense that requires the party asserting the defense to have "clean hands." In this case, despite knowledge of the DRI law, CMEI never initiated contact with the DCA or any predecessor agency to advise of the nature of development it planned in Original Maitland Center (or in the 1985 Acquisition Project.) CMEI had a duty to do so under the DRI law unless Original Maitland Center was "vested." As found, it would have been unreasonable for CMEI to take the position that it did not have to apply for and
obtain a binding letter of interpretation to assure itself of the "vested" status of Original Maitland Center.
Equitable Estoppel.
In order to prove the defense of equitable estoppel against the state, the following elements must be shown: (1) a positive representation as to a material fact that is contrary to a later-asserted position; (2) reasonable reliance on that representation; and (3) a change in position detrimental to the party claiming estoppel, caused by the representation and reliance thereon. State Department of Revenue v. Anderson, 403 So.2d 397 (Fla. 1981); Greenhut Construction Co. v. Henry A. Knott, Inc., 247 So.2d 517 (Fla. 1st DCA 1971). As a general rule, equitable estoppel will be applied against the state only in rare instances and under exceptional circumstances. North American Co. v. Green, 120 So.2d 603 (Fla. 1959). The courts have consistently held that estoppel of the state requires a positive act or statement by a government official. Gay v. Inter-County Tel. & Tel. Co., 60 So.2d 22 (Fla. 1952); Department of Administration v. Flowers, 356 So.2d 14 (Fla. 1st DCA 1978); Greenhut Construction Co. v. Henry A. Knott, Inc., supra. Estoppel cannot rest on mere inadvertence, ignorance, or silence. See also, Special Disability Trust Fund, etc. v. Master Distributors, 418 So.2d 1124 (Fla. 1st DCA 1980).
There was no evidence to prove that the DCA should be estopped from requiring Original Maitland Center to undergo DRI review. Development of Original Maitland Center proceeded absent reliance on any representation or even failure to act on the part of the DCA or its predecessor agencies.
Chapter 380 "imposes no affirmative duty upon [the DCA or its predecessor agencies] to 'seek out' developments in progress in the state ... [and] absent such a duty it cannot be held to be negligent ... for failure to act... So far as the 'vested rights' provision is concerned, it is clear that the agency has no duty to inform a developer one way or the other until a request for a binding letter is submitted under Section 380.06(4)(a)." Compass Lake Hills Development v. State, Department of Community Affairs, 379 So.2d 376,
(Fla. 1st DCA 1979)(footnote 2).
Ridgewood, which claims through CMEI, cannot assert "clean hands." Despite a duty to comply with the DRI law, the provisions of which it had knowledge, CMEI did not initiate contact with the DCA or its predecessor agency. It would have been unreasonable for CMEI to take the position that it could be assured of its claimed vested right to develop Original Maitland Center without DRI review without obtaining a binding letter interpreting its vested rights.
It would have been unreasonable for CMEI to rely on the state's failure to act against Original Maitland Center.
The 1985 Acquisition Project cannot be aggregated with Original Maitland Center, and it is not necessary to decide Ridgewood's equitable estoppel defense as to it. But it should be noted that, regardless what the DCA or its predecessor agencies may have said, done or failed to do between 1981 and 1984, by December, 1984, the DCA pursued its knowledge of CMEI's activities in Original Maitland Center to the point of sending CMEI a monitoring letter specifically advising CMEI that the Original Maitland Center and, with it, the proposed 1985 Acquisition Project might be a DRI requiring Chapter 380 review. CMEI, which was in the process of acquiring the new property for addition to Original Maitland Center, sent the DCA a letter in January, 1985, expressing its disagreement and inviting further response from the DCA. Although CMEI also represented in the letter that whether DRI review would be required was critical
to its decision to proceed with the acquisition, it did not delay the acquisition which closed without further inquiry of the DCA at the end of February, 1985, although the DCA had not yet responded to CMEI's January, 1985, letter. Under these facts, there was no positive representation by the DCA or its predecessor agencies that either the Original Maitland Center or the 1985 Acquisition Project could proceed without DRI review. If the failure of the DCA or its predecessor agencies to act on knowledge of the Original Maitland Center acquired between 1981 and 1984 misled CMEI, the DCA's December, 1984, monitoring letter cured the effect of the failure to act. In any case, the DCA's actions or inaction did not approximate the "callous non-responsiveness, long-standing and unprotesting [action contrary to a later asserted position], and affirmative misleading" which justified the application of equitable estoppel in Fraga v.
Department of Health and Rehabilitative Services, 464 So.2d 144 (Fla. 3d DCA 1985). Nor was CMEI's change its position, if any, in reliance on the DCA's inaction as justified as was the appellant's in Fraga. See also Compass Lake Hills, supra at 381, footnote 2.
Vested Rights.
Section 380.04(20), Florida Statutes (1987), provides in pertinent part:
VESTED RIGHTS. -- Nothing in this section shall limit or modify the rights of any person to complete any development that has been authorized by registration of a subdivision pursuant to chapter 498, by recordation pursuant to local subdivision plat law, or by a building permit or other authorization to commence development on which there has been reliance and a change of position and which registration or recordation was accomplished, or which permit or authorization was issued, prior to July 1, 1973. 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.
In this case, there was no evidence of a subdivision registration, plat recordation or building permit before July 1, 1973. Therefore, vesting must have occurred, if at all, by "authorization to commence development ... issued, prior to July 1, 1973." The parties have stipulated, as found, that Ridgewood succeeds to the vested rights of the Dye, Downs group, if any, and that, if there was "authorization to commence development ... issued, prior to July 1, 1973," the Dye, Downs group changed its position in reliance on it. The only issue is whether Ridgewood proved that the Dye, Downs group was given "authorization to commence development ... issued, prior to July 1, 1973."
As found, before July 1, 1973, the City of Maitland had annexed and rezoned the property that was to become Original Maitland Center as a condition to its purchase by the Dye, Downs group. The City knew the intent of the Dye,
Downs group to develop the land in accordance with a plan of office and commercial development. The zoning was tailored precisely to accommodate the development plans of the Dye, Downs group. It included designations of particular areas for particular uses (in some cases, for one particular use) and specified maximum densities for the permitted uses in the particular areas. The City knew that the Dye, Downs group's purchase of the property was contingent upon the annexation and zoning. But the City did not concur with the request of the Dye, Downs group that it allow development within the zoning specifications without any further approval other than a building permit. The developers would have to comply with the City's subdivision regulations which required approval of both a preliminary and a final plat. Although not the subject of formal City action, the City fully intended to allow development up to the maximums allowed by the new zoning.
Later, still before July 1, 1973, the Dye, Downs group developed more detailed plans for development of portions of what was to become Original Maitland Center and shared these plans with the City. These plans were not presented to the City for approval and were not approved by the City.
Still later, but still before July 1, 1973, the Dye, Downs group prepared a preliminary plat of development of what was to become Original Maitland Center. This preliminary plat was for development in accordance with the City's new zoning for the property. It was presented to the City, but it was not proved that it was approved by the City before July 1, 1973.
In early 1973 the Dye, Downs group also prepared a schedule of planned construction of what was to become Original Maitland Center. This schedule was presented to the City before July 1, 1973, for the City's use in planning future construction of roads and other infrastructure in the area. It was not presented for City approval and was not approved by the City.
The question is whether, under these facts, Ridgewood proved that the City of Maitland, before July 1, 1973, had issued the Dye, Downs group "authorization to commence development."
Section 380.031(4), Florida Statutes (1987), states:
(4) "Development permit" includes any building permit, zoning permit, plat approval, or rezoning, certification, variance, or other action having the effect of permitting development as defined in this chapter.
Under the statutory provisions, the question becomes whether the City of Maitland's annexation and zoning of what was to become Original Maitland Center had "the effect of permitting development as defined in this chapter [380]." 3/
Under Section 380.04(1) and (2), Florida Statutes (1987), quoted in paragraph 5 (renumbered 61) of the Conclusions Of Law, above, making an actual change in the use or appearance of land, even by just clearing it for purposes of construction, is "development." But a change in zoning is not "development." The facts are clear that Maitland's annexation and zoning of what was to become Original Maitland Center did not authorize the Dye, Downs group to commence development. Compliance with the City's subdivision regulations, including submission and approval of preliminary and final plats, was necessary before development, as defined in Chapter 380, could begin. Nor could anything else
the City of Maitland did with respect to the property before July 1, 1973, be considered a permit or authorization to commence development, as defined in Chapter 380.
As found, agency policy on the subject generally, although perhaps not uniformly, has been consistent with the conclusion of law reached in paragraph 29, above. Although the DCA or its predecessor agencies did consider certain zoning or re-zoning to be an "authorization to commence development," especially in the early years of experience under Chapter 380, this may well have occurred only in local jurisdictions where zoning or re-zoning actually did authorize commencement of development, as defined in Chapter 380, under the applicable local ordinances. Because so few local jurisdictions allow commencement of development upon only zoning approval, agency policy has evolved to require, as a general rule, local approval of detailed plan of development, usually a prerequisite for commencement of development, as in the City of Maitland. In addition, agency policy reflects a concern not only for whether development was authorized to commence but also what development was authorized to commence. Without the latter, the agency would not be able to identify the rights that were vested.
To the extent that Section 380.06(20), Florida Statutes (1987), and the related statutes discussed above, could be considered to be ambiguous, the legislative history is not particularly enlightening and does not lead to the conclusion that Ridgewood has vested rights. 4/ Of some importance, Section 380.06(20) is similar to Section 380.05(18), Florida Statutes (1987), the vested rights provision in the area of critical state concern statute. During their legislative history, the two provisions were virtually identical. Both were amended during their legislative history in 1974 to make it easier to show reliance (not an issue in this proceedings). Finally, the area of critical state concern statute's vested rights provision was discussed in committee by one of the cosponsors of both the DRI statute and the area of critical state concern statute, then Florida Senator Bob Graham, and then Senator Haverfield.
The discussion reflected Senator Haverfield's concern that vested rights would not arise under the language of the statute by virtue of zoning approvals and that area of critical state concern designation and regulation could prevent development in accordance with a landowner's intention and with existing Zoning if he did not yet have all of his permits to commence development. Senator Graham tried to assure him that the vested rights provision codified existing law; i.e., if the local zoning authority would be estopped from changing zoning, the state likewise would be estopped. Senator Graham's comments did not seem to assure Senator Haverfield, and the subject of committee discussion abruptly was changed. Without any further indication of legislative intent, both vested rights provisions were enacted without further change.
In analyzing the legislative history, it first should be emphasized that Senators Graham and Haverfield were discussing the area of critical state concern statute. Although its vested rights provision was virtually the same as the DRI statute's, it itself is much different than the DRI statute.
Designation as an area of critical state concern portends the serious likelihood of severe development restrictions. DRI review, on the other hand, does not restrict development; to the contrary, it presumes intense (or, at least, large- scale) development and attempts to insure that the regional impacts of the development are addressed adequately and fairly during the development process. The discussion between Senators Graham and Haverfield not surprisingly centered on zoning since rights embodied in zoning regulations are what would be affected
by designation and regulation as an area of critical state concern. As Senator Graham was attempting to assure Senator Haverfield, a local government can indeed be estopped from changing zoning after rights in the zoning have vested. See Bregar v. Britton, 75 So.2d 753 (Fla. 1954); Town of Largo v. Imperial Homes Corp., 309 So.2d 571 (Fla. 2d DCA 1975). But compelling a landowner to undergo DRI review does not change the zoning regulations to which he is subjected; it only forces him to address the impacts of development allowed by local zoning.
If Ridgewood has vested rights, it is vested rights in the zoning of Original Maitland Center. It does not have a vested right not to undergo DRI review. For Ridgewood to have been able to assert a vested right for Original Maitland Center not to undergo DRI review, the Dye, Downs group would have had to obtain the authorization of the City of Maitland to commence development, including the preliminary and final plat approvals required under the City's subdivision regulations.
Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Petitioner, Department of Community Affairs, enter a final order requiring the Respondent, Ridgewood Properties, Inc., to undergo DRI review as to Original Maitland Center but not as to the 1985 Acquisition Project.
RECOMMENDED this 8th day of June, 1988, in Tallahassee, Florida.
J. LAWRENCE JOHNSTON Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 8th day of June, 1988.
ENDNOTES
1/ Explicit rulings on the parties' proposed findings of fact may be found in the attached Appendix To Recommended Order, Case No. 87-1443.
2/ This defense was raised by Ridgewood in its pleadings and at the hearing but not argued in its post-hearing filings.
3/ Section 380.06(20)(b), Florida Statutes (1987), provides:
(b) For the purpose of this act, the conveyance of, or the agreement of 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 the subsection, provided
such zoning change is actually granted by such government.
On its face, this provision, a 1974 amendment, pertains to reliance, which is not an issue in this case, not to the question whether zoning is an "authorization to commence development." Even if it pertained to the latter, it addresses the quite different circumstance where a local government entered into a land-for-zoning contract with a developer.
4/ Incidentally, the DCA's objection to the admissibility of Respondent's Exhibit 57 is sustained. The report and analysis of the legislative history of Chapter 380 by a student observer and researcher of the process is not properly part of the evidence of the legislative history from which legislative intent is to be discovered.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1443
To comply with Section 120.59(2), Florida Statutes (1987), the following rulings are made on the parties' proposed findings of fact:
Petitioner's Proposed Findings Of Fact.
1.-3. Accepted and incorporated.
Subordinate to facts contrary to those found.
Accepted and incorporated.
First part, accepted and incorporated; second part (last seven lines), rejected as contrary to facts found.
Accepted and incorporated.
First sentence, rejected as contrary to the greater weight of the evidence; rest, accepted and incorporated. 9.-10. Subordinate to facts found.
11.-12. Accepted and incorporated.
13.-14. As found, the City had knowledge of plans but not of final plans and did not approve plans.
Accepted and incorporated.
The sales brochure was received by the City; otherwise, subordinate to facts found.
Subordinate to facts found.
In part, accepted and incorporated; in part, subordinate to facts found.
Subordinate to facts found. 20.-37. Accepted and incorporated.
38. Due to circumstances referenced in the findings, the routine was not always followed timely, otherwise, accepted and incorporated.
39.-44. Accepted and incorporated. Repeated 44. Conclusion of law.
45.-49. Generally accepted and, to the extent necessary, incorporated.
50. Rejected in that, as found, it was not clear why zoning was accepted as "authority to commence development."
51.-52. Accepted and, to the extent necessary, incorporated.
53. Conclusion of law.
Respondent's Proposed Findings Of Fact.
Conclusion of law.
2.-20. Accepted and, to the extent necessary and not subordinate, incorporated.
21.-22. Accepted and incorporated. (Note: As found, the "plan of development" was a zoning map.)
Subordinate to facts found.
Rejected as contrary to facts found. 25.-26. Subordinate to facts found.
Again, as found, the "plan of development" referred to here is a zoning map. With that understanding, accepted and incorporated.
Accepted and incorporated. 29.-30. See 27., above.
31.-32. Subordinate to facts found.
Rejected as contrary to facts found.
"Detailed" is a matter of degree and interpretation. As found, the plans were in the conceptual stages and were not presented for approval. As such, subordinate to facts found.
Accepted and incorporated.
Rejected as not proven.
Subordinate to facts found.
(Again, the "plans" essentially corresponded to a zoning map.)
In part, subordinate to facts found; last sentence, rejected as subordinate to facts contrary to those found. 39.-43. Accepted and incorporated.
Irrelevant.
Accepted and incorporated. (As found, CMEI's question was in response to a DCA letter asserting that a DRI was necessary.)
Accepted and incorporated.
Rejected as contrary to facts found. 48.-53. Accepted and incorporated.
54.-55. Rejected as contrary to facts found.
Subordinate to facts found and unnecessary.
Rejected as contrary to facts found. The policy had not evolved to that point yet, but, if the local jurisdiction required approval of a master plan for development to commence, the DSP seems generally to have required evidence of formal approval.
Accepted and incorporated.
Accepted but unnecessary and irrelevant. 60.-61. Accepted and incorporated.
62.-63. Assuming authorization to commence a development that reached the maximum zoning densities, accepted.
But the underlying assumption was not proven.
Accepted and incorporated. (But significant details were not known.)
Rejected as not proven.
First sentence, rejected as not proven; second sentence accepted and incorporated.
Accepted and incorporated.
68.-70. Accepted and incorporated.
71. Rejected in part as contrary to facts found. (Sen.
Graham was discussing the vested rights provision in the area of critical state concern part of the statute.) Otherwise, generally accepted and incorporated.
72.-74. Accepted and incorporated to the extent necessary.
COPIES FURNISHED:
David L. Jordan, Esquire Dianna M. Parker, Esquire Curtis A. Billingsley, Esquire
Department of Community Affairs 2740 Centerview Drive
Tallahassee, Florida 3299-2100
Christopher C. Skambis, Esquire
R. Duke Woodson, Esquire
111 North Orange Avenue, Suite 1800
Orlando, Florida 32802
Thomas G. Pelham, Secretary Department of Community Affairs 2571 Executive Center Circle, East Tallahassee, Florida 32399
Larry Keesey, Esquire General Counsel
Department of Community Affairs 2571 Executive Center Circle, East Tallahassee, Florida 32399
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AGENCY FINAL ORDER
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STATE OF FLORIDA DEPARTMENT OF COMMUNITY AFFAIRS
STATE OF FLORIDA, DEPARTMENT OF COMMUNITY AFFAIRS,
Petitioner
vs. DOAH CASE NO. 87-1443
RIDGEWOOD PROPERTIES, INC.,
Respondent.
/
FINAL ORDER
The Recommended Order (attached hereto as Attachment A) submitted to the undersigned by J. Lawrence Johnston, Hearing Officer, and the Exceptions to the Recommended Order filed by both the Petitioner and Respondent have been carefully considered. Rulings on the Exceptions filed by the parties are attached hereto as Attachment B. The Findings of Fact and Conclusions of Law contained in the Hearing Officer's Recommended Order are fully adopted and incorporated by reference in this Final Order except for Finding of Fact number 34, which is amended as indicated below, and Conclusion of Law number 11 which is rejected and is replaced as indicated below. In addition, the first sentence of Conclusion of Law number 25 is rejected and replaced by the sentence indicated below; the remainder of Conclusion of Law number 25 is adopted.
Finding of Fact Number 34. In 1971 and 1972, the Dye, Down Group negotiated the purchase of the property that was to become Original Maitland Center. The owner of 230 acres of the property, then a citrus grove, was S.E. Battaglia. At the time, the property was just outside the City of Maitland, to the east and west of I-4 where the new Maitland interchange was being planned.
Conclusion of Law Number 11. For the reasons stated in Findings of Fact 14-16 of the Recommended Order, it is apparant that the 1985 Acquisition Parcel is an integral part of the Maitland Center development. The 1985 Acquisition Parcel was designated "Maitland Center, Section XV" on the Preliminary Plat of Maitland Center approved by the City of Maitland on February 26, 1985. It shared infrastructure with the original parcels and was developed in accordance with the same restrictive covenants and architectural and landscape design standards established by CMEI to control the development of all the Maitland Center project. In name and in fact, the Section XV parcel has simply been an addition to the original Maitland Center development. CMEI made no significant effort to represent the 1985 Acquisition Parcel as a separate and distinct development.
Therefore, Respondent's contention that the "aggregation rule," Rule 28- 11.001, et seq., F.A.C., is applicable to these facts must be rejected. The purpose of that rule is to establish criteria to determine when two or more developments should be aggregated and treated as a single development under the development of regional impact (DRI) law. In Section 28-11.001 of the aggregation rule, it states that:
This rule is intended to be used to a those developments which may be represented
to be separate and distinct developments but which because of the existence of a unified plan of development, should be considered as a single development. (emphasis added)
Although the 1985 Acquisition Parcel was purchased at a later date, it was overtly represented by CMEI and Ridgewood to the City of Maitland to be, and was developed by them as, a part of the Maitland Center project. The 1985 Acquisition Project was not held out to be a separate and distinct development, but was simply a sequentially developed portion of a single, unified development.
By its provisions, Rule 28-11, F.A.C., does not apply to a single development. The Maitland Center development includes the 1985 Acquisition and is a single, unified development which exceeds established DRI thresholds. The
Maitland Center development in its entirety is a DRI and is subject to compliance with the substantive and procedural provisions of Section 380.06, Florida Statutes, and Rule 9J-2, F.A.C.
Conclusion of Law Number 25. Because the 1985 Acquisition Project is found to be an integral part of the Maitland Center project, any separate equitable estoppel defense or claim asserted by Respondent for that 1985 addition to the Original Maitland Center must also be rejected. (The remainder of Conclusion of Law 25 is adopted as written in the Recommended Order.)
ORDER
Based on the Findings of Fact and Conclusions of Law as adopted and set forth herein, the Department of Community Affairs enters this Order directing Respondent, Ridgewood Properties, Inc., to submit an application for development approval pursuant to Section 380.06, Florida Statutes for, and undergo DRI review of, the development known as Maitland Center, which includes both the development designated in the pleadings and at hearing as the Original Maitland Center and the 1985 Acquisition Project, before commencing any further development of the property.
DONE and ORDERED this 27th day of September, 1988, in Tallahassee, Florida.
THOMAS G. PELHAM, SECRETARY
Department of Community Affairs 2740 Centerview Drive
Tallahassee, Florida 32399-2100
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SECOND AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA DEPARTMENT OF COMMUNITY AFFAIRS
STATE OF FLORIDA, DEPARTMENT OF COMMUNITY AFFAIRS,
Petitioner,
vs. DCA CASE NO. 87 NOV-1
DOAH CASE NO. 87-1443
RIDGEWOOD PROPERTIES, INC.,
Respondent.
/
FINAL ORDER
THIS MATTER comes before David M. Maloney, Substitute Secretary of the Department of Community Affairs, for entry of a final order in this case.
This case began when the Department of Community Affairs (Department) notified Ridgewood Properties, Inc. (Ridgewood), that Ridgewood's office development in Maitland constituted a development of regional impact (DRI), and that it thus required approval as a DRI. Ridgewood petitioned for an administrative hearing under Section 120.57, Florida Statute, at which it argued essentially that the project was vested from application of the DRI statute, and that the Department was ignoring its own policy to consider such projects as being vested.
After the hearing, at which the secretary of the Department testified as an expert witness, the hearing officer found that all but one parcel in the development was a DRI and that the project was not vested under the DRI statute. The secretary subsequently entered a final order adopting the hearing officer's findings of fact and conclusions of law, except for the finding that one parcel was not part of the DRI.
The Supreme Court accepted review of the case pursuant to article V, section 3(b)(4), Florida Constitution, and found that the secretary should not have issued the final order in a case in which he was a key witness to disputed material issues of fact. Ridgewood Properties. Inc., v. Department of Community Affairs, 562 So.2d 322 (Fla. 1990). The case was remanded to the Department. On March 6, 1991, the Governor appointed the undersigned as substitute secretary for the limited purpose of reviewing and rendering a final order in this case. The parties were allowed to present oral arguments on May 31, 1991.
As a preliminary matter, Ridgewood objected to the fact that an assistant general counsel of the Department was assigned to act as the undersigned's counsellor in connection with these proceedings. The attorney in question had no connection whatsoever with the prior litigation or appeal of this case; in fact, he is employed in a section of the general counsel's office that reviews local government comprehensive plans, not DRIs. He was insulated from the prior advocates for the Department in this case in the manner described in Smallwood, Beyond Ex Parte Communications, Fla. B.J. 45, 47(Oct. 1987). His role in the undersigned's review of this matter has been restricted to providing copies of documents, scheduling matters, and drafting documents pursuant to specific instructions from the substitute secretary. He has not engaged in any substantive discussion of the merits of this case with the substitute secretary. Therefore, the objection is without merit and is denied.
The undersigned has carefully reviewed the recommended order (attached hereto) and the exceptions to the recommended order filed by both parties. The findings of fact and conclusions of law in the recommended order are hereby adopted and incorporated by reference into this final order, except for finding of fact number 34, which is changed to read as indicated below, and conclusion of law number 11, which is rejected in its entirety and is replaced with the language below. In addition, the first sentence of conclusion of law number 25 is rejected and replaced by the sentence provided below. The remainder of conclusion of law number 25 is adopted without change.
Finding of Fact Number 34. In 1971 and 1972, the Dye, Down Group negotiated the purchase of the property that was to become the Original Maitland
Center. The owner of 230 acres of the property, which was then a citrus grove, was S.E. Battaglia. At the time, the property was just outside the municipal boundary of the City of Maitland, to the east and west of 1-4 where the new Maitland interchange was being planned.
Conclusion of Law Number 11. For the reasons stated in findings of fact 14 to 16 of the recommended order, it is apparent that the 1985 Acquisition Parcel is an integral part of the Maitland Center development. The 1985 Acquisition Parcel was designated "Maitland Center, Section XV" on the Preliminary Plat of Maitland Center approved by the City of Maitland on February 26, 1985. It shared infrastructure with the original parcels and was developed in accordance with the same restrictive covenants and architectural and landscape design standards established by CMEI to control the development of all the Maitland Center projects. In name and in fact, the Section XV parcel was and has always been simply an addition to the original Maitland Center development. CMEI made no significant effort to represent the 1985 Acquisition Parcel as a separate and distinct development.
Therefore, Ridgewood's contention that the "aggregation rule," Rule 28- 11.001, et seq., F.A.C., is applicable to these facts must be rejected. The purpose of that rule is to establish criteria to determine when two or more developments should be aggregated and treated as a single development under the development of regional impact (DRI) law. In Section 28-11.001 of the aggregation rule, it states that:
This rule is intended to be used to aggregate those developments which may be represented to be separate and distinct developments but which because of the existence of a unified plan of development, should be considered as a single development. [Emphasis added.)
Although the 1985 Acquisition Parcel was purchased at a later date, it was overtly represented by CMEI and Ridgewood to the City of Maitland to be, and was developed by them as, a part of the Maitland Center project. The 1985 Acquisition Project was not held out to be a separate and distinct development, but was simply a sequentially developed portion of a single, unified development.
By its provisions, Chapter 28-11, F.A.C., does not apply to a single development. The Maitland Center development includes the 1985 Acquisition and is a single, unified development which exceeds established DRI thresholds. The Maitland Center development in its entirety is a DRI and is subject to compliance with the substantive and procedural provisions of Section 380.06, Florida Statutes, and Chapter 9J-2, F.A.C.
Conclusion of Law Number 25. Because the 1985 Acquisition Project is found to be an integral part of Maitland Center project, any separate equitable estoppel defense or claim asserted by Respondent for that 1985 addition to the Original Maitland Center must also be rejected. [The remainder of conclusion of law 25 is adopted as written in the recommended order.]
RULINGS ON EXCEPTIONS
The following rulings are hereby made on the parties' exception to the recommended order pursuant to Section 120.59(2), Florida Statutes.
PETITIONER'S EXCEPTIONS Accepted and incorporated in Final Order.
RESPONDENT'S EXCEPTION TO RECOMMENDED ORDER
Ridgewood's exceptions to the recommended order were numbered 1 through 29 and are accepted or rejected as indicated below. In addition, Ridgewood filed "Exceptions to Rulings on Petitioner's Proposed Findings of Fact" (numbered 30 to 45), "Exceptions to Rulings on Respondent's Proposed Findings of Fact" (numbered 46 to 64) and "Exceptions to Rulings of Evidentiary Matters" (numbered
65 to 73). Since all exceptions above number 29 were to rulings already made by the hearing officer at hearing or in his order, they are mostly redundant or repetitive argument upon which the Department is under no obligation to rule. However, the Department has indicated below, by giving the number of the exception in parentheses following the ruling on the exception, where these additional exceptions are properly covered by the ruling on exceptions 1 through
The following rulings are numbered in accordance with Ridgewood's exceptions and the rulings are as indicated.
Rejected because it is contrary to facts supported by competent substantial evidence. There is competent substantial evidence that the actions of CMEI and Post, Buckley in 1979 resulted in formal approval of a plan of development and authorization to commence development in the Original Maitland Center project that year.
1A. Accepted to the extent it is already incorporated in finding of fact 8 as written: "The infrastructure in Maitland Center, including roads and water and sewer lines, was constructed by CMEI but now is owned and maintained by the City of Maitland." The remainder is rejected because competent substantial evidence indicates that the 1985 Acquisition Project was not represented as a separate and distinct project, independent of the Original Maitland Center Project. (59)
Rejected because the finding of a voluntary sharing of infrastructure between Original Maitland Center project and 1985 Acquisition Project is supported by competent substantial evidence in the record. (59)
Rejected because the findings and interpretations of BLIVR language are supported by substantial competent evidence. (43)
Rejected because the findings and interpretations of BLIVR language are supported by competent substantial evidence. (43)
Rejected because the findings and interpretations of BLIVR Language are supported by substantial competent evidence. (43)
Rejected because substantial competent evidence supports the findings of departmental policy with regard to vested rights. (44, 69)
Rejected because substantial competent evidence supports the findings of departmental policy with regard to vested rights. (44, 69)
Accepted and incorporated into finding of fact 34.
Rejected because competent substantial evidence supports the findings that maps shown to the City were the equivalent of zoning maps. (33, 46, 55)
Rejected because competent substantial evidence supports the findings that maps shown to the City were the equivalent of zoning maps. (33, 46, 55)
Rejected because the finding that the development was not exempted from subdivision regulation was supported by competent substantial evidence. (30, 34, 47, 48, 49, 50, 51, 56)
Rejected because the finding that multi-family plans were neither presented for approval nor approved by the City is supported by substantial competent evidence. (31, 35, 37, 53)
Rejected because the finding that the preliminary plat was not approved by the City is supported by competent substantial evidence. (32, 52)
Rejected because substantial competent evidence supports the finding that the construction schedule was neither presented for approval nor approved by the City. (36, 38)
Rejected because competent substantial evidence supports the findings that maps shown to the City were the equivalent of zoning maps. (33, 46, 55)
Rejected because the subject findings are supported by substantial competent evidence.
Rejected because the finding that the Department was not the cause of any prejudice to Ridgewood in its vested rights defense is supported by substantial competent evidence.
Rejected because the interpretation of the December 12, 1984, letter from the Department is supported by competent substantial evidence. (38, 58)
Rejected because the interpretation of the January 2, 1985, letter from CMEI is supported by competent substantial evidence. (40)
Rejected because the contacts between the Department and Ridgewood did not rise to the level of settlement negotiations and the evidence admitted during administrative hearing is not restricted to admissibility under the Florida Evidence Code. (41, 65)
Rejected because the finding concerning CMEI's position on vested rights is supported by competent substantial evidence.
Rejected because, since conclusion of law 11 was modified, the exception is subordinate to the new conclusion of law.
22A. Rejected because the finding as to Ridgewood's responsibility under Chapter 380 is supported by competent substantial evidence and law. (57)
Rejected because the conclusion that the statute of limitations is not applicable to this proceeding or the facts of this case is supported by competent substantial evidence and case law. (45)
Rejected because the conclusion that the equitable defense of latches is not available to Ridgewood is supported by substantial competent evidence and case law. (64)
Rejected because the findings related to Ridgewood's defense of equitable estoppel are supported by competent substantial evidence. (64)
Rejected because the conclusions that the development plans were not presented for approval and were not approved by the City were supported by competent substantial evidence. (47, 62, 66)
Rejected because the conclusions that neither a zoning change nor a building permit for a single building are authorization to commence development under Section 380.06(20) are supported by substantial competent evidence and law.
Rejected because the findings with respect to departmental policy requiring an approval of a detailed plan of development for vesting is supported by substantial competent evidence and law. (42, 60-62, 66, 67, 68, 69)
Rejected because the conclusions are supported by the substantial competent evidence and law. (67)
Exceptions 30 to 73 are Ridgewood's exceptions to rulings by the hearing officer on the Department's and Ridgewood's proposed findings of fact. The Department makes specific ruling only on those exceptions listed below because all other exceptions contain redundant and repetitive material already addressed in exceptions 1 through 29 hereinabove.
54. Rejected because findings of fact based on competent substantial evidence indicate it was not proven that shopping center plans were either presented for approval by or approved by the City.
Rejected because the argument that the Department believed that the Original Maitland Center project was vested is not included in findings supported by competent substantial evidence.
Rejected because the argument that the Department believed that the Original Maitland Center project was vested is not included in findings supported by competent substantial evidence.
Rejected because the acceptance of the secretary as an expert witness and the admissibility of testimony were within the hearing officer's discretion, and his ruling is supported by competent substantial evidence.
Rejected because the acceptance of the secretary as an expert witness and the admissibility of testimony were within the hearing officer's discretion, and his ruling is supported by competent substantial evidence.
Rejected because the acceptance of the secretary as an expert witness and the admissibility of testimony were within the hearing officer's discretion, and his ruling is supported by competent substantial evidence.
Rejected because the acceptance of the secretary as an expert witness and the admissibility of testimony were within the hearing officer's discretion, and his ruling is supported by competent substantial evidence.
Rejected because the acceptance of the secretary as an expert witness and the admissibility of testimony were within the hearing officer's discretion, and his ruling is supported by competent substantial evidence.
ORDER
Based on the findings of fact and conclusions of law as adopted and set forth herein, the Department of Community Affairs enters this order directing Respondent, Ridgewood Properties, Inc., to submit an application for development approval pursuant to Section 380.06, Florida Statutes, for and to undergo DRI review of the development known as Maitland Center, which includes both the development designated in the pleadings and at hearing as the Original Maitland Center and the 1985 Acquisition Project, before commencing any further development of the property.
DONE and ORDERED this 4th day of June, 1991, in Tallahassee, Florida.
David M. Maloney, Esquire Substitute Secretary Office of the Governor The Capitol, Room 209
Tallahassee, Florida 32399-0001
Copies furnished to:
Bill L. Bryant, Jr., Esquire Foley and Lardner
Post Office Box 508 Tallahassee, Florida 32302-0508
Christopher C. Skambis, Esquire Foley and Lardner
Post Office Box 2193 Orlando, Florida 32802-2193
J. Lawrence Johnston, Esquire Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
David Jordan, Esquire Assistant General Counsel
Department of Community Affairs 2740 Centerview Drive
Tallahassee, Florida 32399-2100
| Issue Date | Proceedings |
|---|---|
| Jun. 08, 1988 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Sep. 27, 1988 | Agency Final Order | |
| Jun. 08, 1988 | Recommended Order | Development of Regional Impact no aggregation-no unified plan, or common owner. No limitations, laches or estoppel bar. No clean hands. No vested rights-no authority to commence |
