vs. ) CASE NO. 90-5028
Respondents. )
The final hearing in the above-styled matter was heard pursuant to notice by P. Michael Ruff, assigned Hearing Officer of the Division of Administrative Hearings, in Apalachicola, Florida.
For Petitioner: L. Kathryn Funchess, Esquire
Julia L. Johnson, Esquire Department of Community Affairs 2740 Centerview Drive
For Respondents: Walter Smith, Esquire (Saunders) P.O. Box 603
For Respondent: Alfred O. Shuler, Esquire (Franklin County) SHULER AND SHULER
P.O. Box 850
The issue to be resolved in this proceeding concerns whether the Respondents, Christina Saunders and Tim Saunders (hereinafter referred to as the "Saunders" or "Developers"), have complied with the applicable land use regulations for Franklin County, whether the Respondent, Franklin County ("County"), has properly enforced the applicable land use regulations with regard to the Saunders and their real property at issue and whether corrective action should be required of the Saunders.
This cause arose on July 16, 1990 when the Petitioner, Department of Community Affairs (hereinafter referred to as "Department" or "DCA"), issued a notice of violation (hereinafter referred to as "NOV") directed to the Saunders and the County Board of Commissioners. The NOV alleged that the Saunders had
engaged in the development of a subdivision known as "Deer Run Estates", without having complied with the provisions of the County Subdivision Ordinance No. 89-7 currently in effect, nor its Predecessor ordinance, County Ordinance No. 74-1, contrary to the relevant provisions of Chapter 380, Florida Statutes, which accord the Department oversight authority over the enactment and enforcement of the County land use ordinances because of its status as an Area of Critical State Concern, as denominated and delineated in Chapter 380, Florida Statutes.
The NOV also alleged that the County has improperly accepted the filing of a plat of the Deer Run Estates subdivision as a "Partially-developed" subdivision, pursuant to an exemption provision in County Ordinance No. 89-7, at issue, which allows "partially-developed subdivisions" to be exempted from the Provisions of that ordinance. The Department alleged that Deer Run Estates was not a Partially-developed subdivision and should not have been exempted from the provisions of Ordinance No. 89-7.
The cause came on for hearing as noticed. At the hearing, the Department adduced the testimony of three (3) witnesses: James E. Quinn, accepted as an expert in land use planning and the administration of the Area of Critical State Concern ("ACSC") program; Mike McDaniel, accepted as an expert in land use planning; and Rebecca Jetton, accepted as an expert in land use planning. The Saunders adduced the testimony of Donald M. Wood and themselves. The County called Allen Pierce as a witness, who was accepted as an expert in urban and regional planning.
Upon conclusion of the hearing, the parties had the proceedings transcribed and availed themselves of the right to file proposed findings of fact and conclusions of law in the form of Proposed Recommended Orders. Those proposed findings of fact are addressed in this Recommended Order and again specifically ruled upon in the Appendix attached hereto and incorporated by reference herein.
The Department is a state land planning agency charged with responsibility to administer and enforce the provisions of Chapter 380, Florida Statutes, and the rules promulgated thereunder, concerning the regulation of real estate development as pertinent hereto. See Sections 380.031(18) and 380.032(1), Florida Statutes (1989). The land development regulations enacted by local governments in the Apalachicola Bay ACSC, such as County Ordinance No. 89-7, are subject to approval by the Cabinet of the State of Florida, sitting as the Florida Administration Commission; and the Department is authorized by Sections 380.05(13) and 380.11(2)(a), Florida Statutes (1989), to institute administrative Proceedings to require counties to Properly administer land development regulations.
Most of the County, including the subject real Property, is designated as the Apalachicola Bay ACSC, pursuant to Section 380.0555, Florida Statutes. The County, through its Board of County Commissioners, is a local government within the Apalachicola Bay ACSC, as designated Pursuant to Section 380.0555, Florida Statutes, and is responsible for the adoption and implementation of County Ordinance No. 89-7, a land development regulation applicable in the ACSC.
The Saunders are the owners and Developers of approximately 39 acres of real property in Lanark Village, Franklin County, Florida, known as "Deer Run Estates". In February of 1989, the Saunders Purchased the subject property as an undivided tract of land, described by metes and bounds.
In March of 1989, the Saunders secured a permit from the County authorizing the clearing of underbrush and dead trees from the subject Property. They secured a second permit on May 11, 1989, authorizing the construction of a road on the Property. Finally, they Secured a permit shortly thereafter authorizing the erection of a real estate sales sign on the property.
On May 11, 1989, Respondent, Christina Saunders, filed a plat of the Deer Run Estates subdivision with the County Planner. The plat divided the subject property into 37 one-acre lots. As of May 11, 1989, the only actual development activity conducted on the property by the Saunders was land clearing. The plat filed by Ms. Saunders was accepted by the County planner, Allen Pierce, pursuant to Article VI, Section 6.2, of County Ordinance No. 89-7, exempting "Partially-developed subdivisions" from the requirements of that ordinance. The County planner accepted all plats filed with the planning office, including that for Deer Run Estates, without actually conducting a site inspection to determine the amount and type of existing development in a given subdivision. None of the plats accepted by the County planning department were rendered to the DCA for review.
Soon thereafter, on May 16, 1989, the Board of County Commissioners adopted County Ordinance No. 89-7, repealing the prior subdivision Ordinance No. 74-1. Ordinance No. 89-7 was approved by the Florida Administration Commission and became effective on August 28, 1989. Ordinance No. 89-7 established more specific standards for improvements and established a procedure for obtaining subdivision approval, which consists of submission of a sketch plat, preliminary plat, and final plat review.
Ordinance No. 89-7, Article VI, Section 6.2, provides:
Land shall be subdivided and developed only in accordance with the requirements of this ordinance. Development permits for land requiring subdivision approval shall not be issued except when the land has been properly subdivided. Lot owners wishing to develop their lot or lots within a recorded subdivision shall be denied a building permit until the subdivision has been approved and recorded. However, unapproved, but partially developed subdivisions filed with the Franklin County planning department prior to the approval of this ordinance by the administration commission shall be exempt from the provisions of this ordinance and the county shall not be under any obligation to provide subdivision improvements.
When Ordinance No. 89-7 became effective, the entire 39-acre parcel of property was owned by the Saunders, jointly. No written contract for the sale of any of the property was entered into until October 23, 1989, when the Developers accepted a purchase money deposit on a lot from a Mr. Massey. The County issued a building permit to Mr. Massey authorizing the construction of a single-family residence. This was the first structure to be erected on the subject property since its abandonment as an Army post in the 1940's. Construction of the Massey residence began in late December of 1989 or early
January of 1990. This property had been used as the military base known as "Camp Gordon Johnson" during World War II but was later abandoned by the military; and the improvements on the property were dismantled and sold.
During the ensuing years, the property was cleared a number of times by various owners; however, no permanent structures or improvements were built. There was no recognized use of the property between the late 1940's and approximately 1988 or 1989, a period of approximately 40 years. Thereafter, in March of 1989, the Developers secured the permit authorizing the clearing of the underbrush and dead trees, the permit authorizing the construction of a road on the property, and the permit related to the real estate sales sign.
As of May 11, 1989, the only development activity being conducted on the subject property by the Saunders was some land clearing of underbrush and dead trees. The Developers have not yet installed water lines or sewer lines, and water service is not yet available to the individual lots in the Deer Run Estates subdivision. No roads have yet been constructed or paved within the subdivision, and no storm water management plan has been submitted for approval. Neither have the Saunders obtained a sketch plat or preliminary approval for the subdivision nor have they obtained final plat approval from the County Commission in a public hearing process, as required by the provisions of Ordinance No. 89-7. The roads which presently exist within the subdivision, F Street, Doe Lane, and Buck Lane, are not constructed in accordance with the standards identified in Ordinance No. 89-7. Rather, they are leftover, abandoned roads dating back to World War II, when they served the installations constituting Camp Gordon Johnson. The roads are substandard and were in a deteriorated condition as of the date of approval of the ordinance on August 28, 1989, having been abandoned for some 40 years. Piles of limerock have been placed on the property preparatory to roadwork; brush has been cleared; and the Massey residence may have been started as of late 1989 or early 1990.
Although the Developers have filed a plat and divided the property by survey into individual lots, the property remains under the ownership and possession of the original Developers, the Saunders, with the exception of the lot sold by contract of sale to Mr. Massey, upon which he constructed a single- family residence. No infrastructure consisting of water or sewer lines and service, ditches, drainage swales, or other means of handling surface runoff and storm waters, the paving of any existing roads and construction of new roads or streets, or any activity associated with "development", in terms of Section 380.04, Florida Statutes, in its definition of development, have been conducted on the subject property, with the exception of the clearing of underbrush and dead trees and the piling of limerock on the property preparatory to doing roadwork. These items involve alteration of the land and clearing of land as an adjunct of construction (if, indeed, the land clearing was an adjunct to the construction, which was not proven), but the Department's expert witnesses established that, although such activity may be acts within the definition of development, they do not, at the state of completion reached as of the time the ordinance became effective, and for some time thereafter, constitute a "partially-developed" subdivision. It was established that "partially developed" means that at least some infrastructure, such as construction of roads, water and sewer utility service, and storm water management plans and construction, should have been accomplished. Substantial progress had not been made in installing these various, basic component parts of a subdivision which are necessary to allow residences to be constructed and occupied, with ingress and egress routes at least under substantial construction. No such infrastructure necessary for a subdivision to operate had been installed, or even substantially begun, at the time of the effective date of Ordinance No. 89-
7, and even at the time of hearing. Consequently, the Deer Run Estates subdivision was not "partially developed" at the time pertinent hereto, when the ordinance became effective, or before, when the plat thereof was filed with the County planning office.
The fact that several deteriorated roads or streets, as well as 20 concrete slabs, left over from the military use of some 40 years ago, does not constitute an element of partial development. Those concrete slabs, or some of them, might be usable in developing future residences; however, the concrete slabs and relict streets were installed for a very different type of development some 40 years ago and abandoned since then. The fact that they still exist on property, which essentially receded back to property of a rural, undeveloped character, cannot serve to vest the subdivision as a partially developed one, exempting it from compliance with the land use regulation or ordinance at issue. Neither the deteriorated military roads nor the concrete slabs were clearly shown to have been useful in their present condition for the proposed residential development and, thus, cannot be considered to constitute elements of a "partially developed" subdivision for purposes of the exemption involved in this proceeding.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this Proceeding. Section 120.57(1), Florida Statutes.
Section 380.05(16), Florida Statutes, provides that no person shall undertake any development within an ACSC, except in accordance with Chapter 380, Florida Statutes. County Ordinance No. 89-7, was approved by the Florida Administration Commission as a land development regulation applicable to the Apalachicola Bay ACSC. The Department is authorized by Sections 380.05(13) and 380.11(2)(a), Florida Statutes (1989), to institute an administrative proceeding to require the County to properly administer its land development regulations.
The Department is also authorized to institute an administrative proceeding against any developer or responsible party pertaining to any ACSC if damage or injury is caused or may be caused by the development activity, by a violation of Section 380.05, Florida Statutes, a rule of any governmental agency, or a development order, pursuant to the provisions of Section 380.11(2)(c)1., Florida Statutes.
Article III, Section 3.1, Franklin County Ordinance No. 89-7 provides: 3(e) Subdivision Approval Required.
Whenever any subdivision of land is proposed, before any contract is made for the sale of any part thereof, and before any permit for the erection of a structure in such proposed subdivision shall be granted, the subdividing owner, or his authorized agent, shall apply for and secure approval of such proposed subdivision in accordance with the requirements of this ordinance.
The Saunders contracted for the sale of a lot in Deer Run Estates to Mr. Massey in October of 1989. They had not secured approval of their subdivision, contrary to Article III, Section 3.1, paragraph 3(e) of Ordinance No. 89-7 quoted above, nor had the County complied with that provision in its issuance of a permit to Mr. Massey authorizing the construction of his residence in Deer Run Estates. Both Respondents were acting on the belief that the Deer Run Estates subdivision was entitled to and subject to the exemption provision in Section 6.2 of that ordinance quoted, infra.
Section 3.3 of Ordinance No. 89-7 provides that subdivisions are to be classified as major or minor subdivisions. All requests for subdivision approval must first receive "sketch plat approval" from the Board of County Commissioners. Following sketch plat approval, if the subdivision is classified as a major subdivision, both preliminary plat approval and final plat approval shall be obtained. A major subdivision is defined by Section 2.21(b) as any subdivision of land into 20 lots or more within a 12-month period. The plat of the subject property indicates the existence of over 20 lots, subdivided all at once. Therefore, Deer Run Estates is a major subdivision and is required to obtain preliminary and final plat approval, pursuant to the provisions of Ordinance No. 89-7, if the exemption does not apply.
County Ordinance No. 89-7, Article VI, provides: 6.1
No plat of a subdivision of land located
within the jurisdiction of the board shall be admitted to the records of Franklin County, or received or recorded by the clerk, except in accordance with the requirements of this ordinance.
6.2
Land shall be subdivided and developed only in accordance with the requirements of this ordinance. Development permits for land requiring subdivision approval shall not be issued except when the land has been properly subdivided. Lot owners wishing to develop their lot or lots within an unrecorded subdivision shall be denied a building permit until the subdivision has been approved and recorded. However, unapproved, but partially developed subdivisions, filed with the Franklin County planning department prior to the approval of this ordinance, shall be exempt from the provisions of this ordinance and the county shall not be under any obligation to provide subdivision improvements. (emphasis supplied) ...
Although the term "partially-developed subdivision" is not defined in the County ordinance, it is clear that Deer Run Estates falls short of achieving that level of development. While it is true that, strictly speaking, some development, as that concept is defined in Section 380.04, Florida Statutes, has taken place on the subject property and had at the time a plat was filed, in the sense that some land clearing operations had begun, and permits had been obtained to construct a road and to erect a real estate sales sign, Deer Run
Estates is accurately described as a primarily undeveloped subdivision. This conclusion is supported by the evidence, culminating in the above Findings of Fact, delineated above, that there were no structures existing on the property at the time the plat was filed and the ordinance effective; there were no improved roads or water lines in place; the roads existing on the property were built by the military during World War II in a deteriorated condition, and not installed pursuant to any residential or commercial development efforts by the subject Developers or their predecessors, as was the case with the remaining abandoned concrete slabs. No road improvements, ditching, swales or other drainage control installation had been effected, except for the piling of limerock on the property preparatory to road development; and the property was still held in single ownership by the developers.
The acceptance of the plat of Deer Run Estates by the County planner is contrary to the provisions of Ordinance No. 89-7, Article VI, Section 6.2, since Deer Run Estates was, indeed, not a partially-developed subdivision at the time the plat was filed. This provision does not require any inspection of the property by the County prior to its acceptance of the plat; however, since a certain level of development was required to have been obtained to qualify for the exemption, a determination of the extent of development should have been obtained and could only have been verified by visual inspection, which, in this case, was not performed.
Although Ordinance No. 89-7 purports to exempt from its provisions partially-developed subdivisions when the developer files a plat with the County planning and building department, the ordinance does not exempt those subdivisions from the provisions of the prior subdivision ordinance, County Ordinance No. 74-1. The Developers' assertion that Deer Run Estates is exempt from Ordinance No. 74-1 is rejected. In order to qualify for the exemption contained in Ordinance No. 89-7, the Developers must already have a plat on file with the County planning and building department prior to the effective date of Ordinance No. 89-7. That means that the plat would have had to have been filed under and comply with the provisions of Ordinance No. 74-1 because that ordinance could not have been repealed by Ordinance No. 89-7 prior to the effective date of Ordinance No. 89-7, at which point the plat filed prior to the effective date of Ordinance No. 89-7 (in order to take advantage of the exemption) would have had to be in compliance with Ordinance No. 74-1, which at that point, remained in effect.
Finally, concerning the issue of Deer Run Estates being exempt from the requirements of Ordinance No. 89-7 because its development rights had already vested, it is concluded that the limited development activity conducted by the Saunders prior to the effective date of Ordinance No. 89-7 does not justify Deer Run Estates being considered to be a "partially-developed subdivision" vested from the requirements of Ordinance No. 89-7. Although the Saunders assert that prior development on the site by the military and its use as a military camp in the 1940's supports a conclusion that the subdivision was partially developed and, therefore, vested, this argument is inapposite. This was a pre-existing development of a different type entirely from that currently proposed, was not a subdivision but, rather, an Army post; and even if it were considered to be "development", it was abandoned over 40 years before the subject property was purchased by the Saunders and a plat filed with the County planning department. Thus, to the extent that the installation of the Army post, in part on the subject property, could be considered to be development of some sort, it had been abandoned for over 40 years and the property lapsed to a rural, undeveloped character. That sort of "development" cannot serve to exempt the property from compliance with the new Ordinance No. 89-7.
Even if the acceptance of the plat of Deer Run Estates as a Partially- developed subdivision by the County were correct, the issuance of the permit to Mr. Massey authorizing the construction of a residence was contrary to the provisions of the prior Ordinance No. 74-1, which was in effect until it was repealed by Ordinance No. 89-7 on that ordinance's effective date. The plat was filed during the effective period of Ordinance No. 74-1, which required the approval of preliminary and final plats, a public hearing, and formal approval by the County Commission prior to the sale of any lot. That ordinance was not complied with by the County in its issuance of the permit to Mr. Massey before it had required the Developers to obtain approval of the preliminary and final plats, public hearing, and formal approval by the County Commission prior to the sale of the Massey lot.
County Ordinance No. 79-7 purported to amend the application of the requirements of Ordinance No. 74-1, as to lots of one acre or more, conveyed by metes and bounds description, exempting those lots and subdivisions from the provisions of Ordinance 74-1. However, Section 380.0555(9)(a), Florida Statutes, lists the local land development regulations which shall be administered by local governments within the Apalachicola Bay ACSC. Although Ordinance No. 74-1 is included in this list, Ordinance No. 79-7 is not. Further, Section 380.0555(9)(a), Florida Statutes, provides:
If a local government has a provision in its local comprehensive plan or its land development regulations which conflicts with a provision of this paragraph, or has no comparable provision, the provision of this paragraph shall control.
Ordinance No. 79-7 conflicts with Ordinance No. 74-1, by attempting to exclude lots of one acre or more in size, conveyed by metes and bounds descriptions, from the requirements of Ordinance No. 74-1. Pursuant to Section 380.0555(9)(a), Florida Statutes, the provisions of Ordinance No. 74-1 control over the provisions of Ordinance No. 79-7; and the Saunders' attempted reliance on Ordinance No. 79-7 as authority for an additional exemption from complying with Ordinance No. 74-1, as well, is incorrect.
Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore,
RECOMMENDED that a Final Order be entered by the Department requiring the following corrective actions:
William E. Sadowski Secretary
G. Steven Pfeiffer, Esq. General Counsel
L. Kathryn Funchess, Esq. Julia L. Johnson, Esq.
Walter Smith, Esq.
P.O. Box 603 Apalachicola, FL 32320
Alfred O. Shuler, Esq. SHULER AND SHULER
P.O. Box 850 Apalachicola, FL 32320
All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
