TOM W. ANTHONY, TALLAHASSEE ) INTERSTATES WEST, )
vs. ) CASE NO. 90-6317VR
Respondent. )
This matter was heard before the undersigned pursuant to Section 120.65(9), Florida Statutes (1989), and the City of Tallahassee Ordinance No. 90-0-0043AA, adopted July 16, 1990.
For Petitioner: Charles A. Francis, Esquire
For Respondent: James R. English, Esquire and
Whether Interstate-Tallahassee West has demonstrated that development rights in certain real property it owns have vested against the provisions of the 2010 Comprehensive Plan?
An application for Vested Rights Determination dated July 25, 1990, was filed with the Tallahassee-Leon County Planning Department by Petitioner, Interstate-Tallahassee West (Interstate). The Application for Vested Rights Determination was ultimately reviewed by the Staff Committee for the Respondent, City of Tallahassee (City), and was denied. Notice of the denial was provided to Interstate by letter dated August 24, 1990. Interstate, by letter dated August 29, 1990, appealed the denial. On or about October 4, 1990, the City referred the matter to the Division of administrative Hearings for assignment of a Hearing Officer.
Pursuant to agreement of the parties, a hearing was held on November 9, 1990, to give the parties an opportunity to supplement the record with additional documentary evidence and testimony. At the commencement of the hearing, conducted in accordance with City of Tallahassee Ordinance No. 90-0- 0043AA, the transcript of the hearing before the Staff Committee of the City; exhibits filed with the original request for the assignment of a Hearing Officer; and certain documents the parties had agreed could be submitted to supplement the record were accepted into evidence.
Interstate presented the testimony of Thomas W. Anthony and Kent C. Deeb.
The City did not offer any testimony or exhibits.
The parties agreed to file proposed final orders by November 29, 1990.
Consequently, the parties waived the requirement that a final order be rendered thirty days after the hearing. Rule 22I-6.031, Florida Administrative Code.
Both parties did file timely final orders. Rulings on the parties' proposed findings of fact may be found in the Appendix to this Final Order.
By agreement of the parties, the record and exhibits will be referenced in the following form. References to the record of the hearing in this matter conducted by the Staff Committee on August 20, 1990, will be shown as: (R-1, p.
). Reference to the record of the hearing conducted by the undersigned on November 9, 1990 at the Division of Administrative Hearings will be shown as (R- 2, p. ). References to exhibits will be by the title of the exhibit.
Application for the approximately 15.6 acres remaining of the original tract was disapproved by the Staff Committee and that portion of the property is the subject of this appeal. (R-1, p. 17.)
Interstate has not prepared a specific building or development design for the property which is the subject of this appeal. (R-2, p. 97, R-1, p. 5.)
As of the date of the hearing in this case, Interstate had no specific building plans for the property which is the subject of this appeal. (R-2, p. 38.)
As of the date of the hearing in this case, Interstate had not chosen a specific land use for the property. (R-2, pp. 38-39.)
As of the date of the hearing in this case, Interstate had not made application for environmental permits for the property. (R-2, pp. 49 and 98.)
As of the date of the hearing in this case, the only infrastructure that had been constructed on the original tract are two storm water ponds which were built in the 1970's, and prior to Interstate's purchase of the property. (R-2, pp. 86, 87.)
Interstate was never assured by the City that the property could be used for any specific use such as a motel, apartments or offices. Interstate and the City made no commitments as to any specific uses of the property. (R-2, pp. 47-48.)
The City advised Interstate by letter dated August 13, 1990, that the 2010 Comprehensive Plan requires Planned Unit Development zoning for an office park (which is by definition an office building or buildings of more than 40,000 square feet). (Letter from Martin P. Black, City's Chief of Land Use Administration, to Interstate Tallahassee West, dated August 13, 1990.) The City did not advise Interstate that it could not build such an office building on its property. (R-2, pp. 45, 46, and 100.)
As of the date of the hearing in this case, Interstate had not requested a determination from the City as to whether the 2010 Comprehensive Plan would prohibit development of the property as the market might dictate. (R-2, p. 40.)
At the hearing in this case, Interstate presented the testimony of Mr. Deeb regarding the existence of a master environmental permit for the original tract which was in place before Interstate purchased the property. (R-2, p. 67.) However, Interstate offered no evidence that such permit contemplated any specific use or density regarding development of the property.
Costs Associated with Interstate's Property.
Interstate purchased the original tract in 1986 at a cost of $748,000. (R-2, p. 17; Development Expenditures.) The cost to purchase the property was not incurred in reliance on any representation of the City.
Interstate has expended $325,063.82 in interest on acquisition loans, pursuant to the property purchase. (Development Expenditures.) The interest cost on acquisition loans was not incurred in reliance on any representation of the City.
Interstate has expended $46,824.95 in Ad Valorem taxes on the property. (Development Expenditures) These costs were not incurred based on any representation of the City.
Interstate has expended $28,839.75 on engineering and survey work on the property. (Development Expenditures) The costs of the engineering and survey work during 1989 were substantially incurred by Interstate in conjunction with the negotiations of the potential sale of the 6.98 acre parcel of its property to Deeb. (Chronological Listing of Events, pp. 2-3; R-2, p. 27.)
These costs were not incurred based upon any representation of the City.
Interstate has expended $8,500.00 in legal and miscellaneous fees associated with development of the original tract and the potential sale of the
6.98 acres to Deeb. (Chronological Listing, Development Expenditures) Interstate has failed to prove that these costs were incurred based on any representation of the City.
The Purchase and Sale Agreement with Deeb.
Negotiations between Interstate and Deeb regarding The Purchase and Sale Agreement began in the Spring of 1989. (R-2, p. 20.) Deeb executed the agreement on December 14, 1989, and the Interstate partners signed the agreement on December 27, 1989. (Purchase and Sale Agreement, p. 8.) Interstate does not assert that the City was privy to this agreement and has failed to prove that it relied on any representation of the City in entering into this agreement or in incurring any costs or future obligations pursuant to the agreement.
Interstate was aware that the 2010 Comprehensive Plan was being developed when the Tallahassee-Leon Planning Commission approved Interstate's Preliminary Plat on January 18, 1990. (R-2, p. 50.)
Interstate knew that the Comprehensive Plan "was coming" at the time Mr. Anthony (partner in Interstate) understood that the original tract was to be subdivided in order to "cut out" a site for Deeb so as to "key on him" as to the development of the property. (R-2, p. 46.)
The Preliminary Subdivision Plat drawing, subsequently presented to the Tallahassee-Leon Planning Commission, is dated November 29, 1990. (Preliminary Subdivision Plat as approved on January 18, 1990.)
The testimony of Thomas W. Anthony that Interstate would not have entered into the Purchase and Sale Agreement with Deeb if it knew that it would not be able to move forward with C-2 development of the remaining lots is accepted. (R-2, p. 36.) However, Interstate has failed to prove that it relied on any representation of the City that it could so proceed upon adoption of the 2010 Comprehensive Plan.
The Utility Agreement.
The Utility Agreement (previously described in paragraph 16) was executed by the City on June 25, 1990. The agreement was signed by on behalf of Interstate on June 29, 1990, by C. W. Harbin and Tommy Faircloth, and on July 10, 1990, by Mr. Anthony. This agreement outlines what Interstate and the City have each agreed to do in terms of Interstate's proposed development. The agreement describes Interstate's proposed development activity in general terms as "commercial development". In this agreement, the City makes no representation or commitments relative to any specific land use or specific
density concerning Interstate's property. Interstate has failed to prove that the City, in executing the Utility Agreement, made any representation upon which Interstate relied in incurring any costs or future obligations.
The Preliminary Plat Approval.
The Preliminary Plat Approval of January 18, 1990, does not contemplate any specific uses, intensities or designations. (R-2, pp. 47-48.) Interstate has failed to prove that the approval of the Preliminary Plat constitutes an act or representation upon which Interstate relied in incurring any costs or future obligations.
The A-2 Rezoning Approval.
Interstate has failed to prove that it relied upon the act of the City, in approving Interstate's request to rezone a portion of the original tract from A-2 to C-2 in incurring any costs or future obligations.
Interstate's Application for Vested Rights.
On or about July 25, 1990, Interstate filed an application for vested rights determination (Application), with the Tallahassee-Leon County Planning Department. (Application VR0008T.)
The Following information concerning the development of the subject property is contained on the Application:
"Kent C. Deeb" is listed as the "owner/agent".
Question 3 lists the name of the project as "Interstates Tallahassee West."
The project is described as a "Four Lot Subdivision."
The project location is described as "lots 1 and 2 Block A Commonwealth Center."
The total project costs are estimated at $2.5 Million."
Progress towards completion of the project is listed as: A. Planning: "Plans; Rezoning; Subdivision Plat Approval; Utility Agreement for Extension with the City"; B. Permitting: "Existing with the original Commonwealth Center Development; C. Site
Preparation: "Zoning, Platting, and Plans";
D. Construction: "Original Holding Ponds".
Total expenditures to date attributed to the progress towards completion of the project are listed as $1.325 Million.
The form of government approval allowing the project to proceed is listed as "Original Plat; Rezoning; Subdivision Plat."
On August 20, 1990, a hearing was held to consider the application before the City's three member Staff Committee. Kent C. Deeb appeared and testified for Interstate.
By letter dated August 21, 1990, Mark Gumula, Director of Planning for the Tallahassee-Leon Planning Department, informed Interstate that the Application had been denied.
During the hearing before the undersigned, Interstate stipulated that it sought approval of its Application based upon "common law vesting" and not upon "statutory vesting," as those terms are defined in City of Tallahassee Ordinance 90-0-0043AA.
CONCLUSIONS OF LAW
Jurisdiction.
The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 163.3167, Florida Statutes, (1989), and City of Tallahassee Ordinance No. 90-0-0043AA (Ordinance).
The Ordinance.
Pursuant to Section 163. 3167, Florida Statutes, the City was required to prepare a comprehensive plan governing the use and development of land located within the City of Tallahassee. In compliance with Section 163.3167, Florida Statutes, the City adopted a comprehensive plan (2010 Comprehensive Plan), which was submitted to the Florida Department of Community Affairs for review on February 1, 1990.
The City adopted the Ordinance to insure that existing rights to develop property of Tallahassee property owners created by the Constitutions of the State of Florida and the United States, are not infringed upon by application of the 2010 Comprehensive Plan. The purpose of the Ordinance is to establish the:
... sole administrative procedures and standards by which a property owner may demonstrate that private property rights have vested against the 2010 Comprehensive Plan.
(Section IA of the Ordinance.)
Pursuant to the Ordinance, any Tallahassee property owner who believes that his or her property rights to develop are vested, and therefore believes that the property may be developed without complying with the 2010 Comprehensive Plan, must file an application provided by the City within 120 days after July 16, 1990. If an application is filed pursuant to the Ordinance and it is determined that development rights have vested, the consistency and concurrency requirements of the 2010 Comprehensive Plan do not apply to the property.
Applications to determine if development rights have vested are initially reviewed for technical correctness by the Tallahassee-Leon County Planning Department's (Planning Department) staff. (Section III.3.a. of the Ordinance.) Once the Application is accepted, the staff of the Planning Department makes the initial determination as to whether development rights are vested. Id. If staff cannot determine whether an applicant's development rights in the property are clearly and unequivocally vested, a hearing before a Staff Committee consisting of the City Attorney, the Director of Planning, and the Director of Growth Management is to be conducted within fifteen days after the Planning Department staff's decision. (Section III.3.c. of the Ordinance.) A hearing before the Staff Committee may also be requested by an applicant if staff determines that the applicant's property is not vested. Id.
An applicant is required to present all evidence in support of his or her application at the hearing before the Staff Committee. (Section III.3.d of the Ordinance.) At the conclusion of the hearing the Staff Committee must "adopt a decision of approval, denial, approval with conditions, or to continue the proceedings to a date certain." Id. Written notice of the Staff Committee's decision is to be provided within ten calendar days after the hearing. Id.
If a hearing before the Staff Committee is waived or if the decision of the Staff Committee is adverse to the applicant, Section III.3.e of the Ordinance provides for an appeal to a Hearing Officer. The nature of such an appeal is set out in Section III.3.e.1 of the Ordinance:
This "appeal" is not intended to mean an appeal in the traditional sense, that is, only a review of the Staff Committee record of their hearing. The Hearing Officer "appeal" shall be construed in its broadest, non- technical sense, which is merely an application to a higher authority for a review of the staff Committee action taken.
In reviewing the action taken by the Staff Committee, Section
III.3.e.3 of the Ordinance provides the following:
If the Staff Committee record of the hearing is full and complete, the Hearing Officer may determine that the record is the only evidence that is necessary.
However, the Hearing Officer may determine that additional evidence and oral or written testimony, including cross-examination, is necessary to properly evaluate the Staff Committee's action and render a decision as to its validity. The Hearing Officer shall have the authority to determine the need for additional evidence and/or testimony.
Section III.3.e.5 and 6 of the Ordinance governs the manner in which an appeal is filed and the manner in which any hearing conducted by a Hearing Officer is to be conducted.
Section III.3.e.7 of the Ordinance governs a Hearing Officer's decision:
The Hearing Officer shall review the record and testimony presented at the hearing before the Staff Committee, if any, and at the Hearing Officer's hearing
....
The Hearing Officer shall be guided by the previously adopted Comprehensive Plan, the adopted 2010 Comprehensive Plan, the Land Development Regulations, this ordinance, and established case law.
The burden shall be upon the appellant to show that the decision of the staff or Staff Committee cannot be sustained by a preponderance of the evidence or the staff or Staff Committee decision departs from the essential requirements of law.
The Hearing Officer's determination shall include appropriate findings of fact, conclusions of law, and
decisions in the matter of the appeal. The Hearing Officer may affirm, affirm with conditions, or reverse the decision of the staff or the Staff Committee.
The Hearing Officer shall file his written determination on each appeal with the Director within thirty (30) calendar days of the date of appeal hearing and a copy shall be provided to the City Clerk and the applicant.
Section IV of the ordinance governs the determination of whether an applicant's development rights have vested. Section IV.A of the ordinance provides two situations where development rights will be considered vested: "common law vesting" and "statutory vesting".
In this appeal it is stipulated that the development does not meet the definition of statutory vesting and Interstate argued that its development rights have vested pursuant to the common law vesting definition of the Ordinance. (R-2, p. 8.) "Common law vesting" is defined as:
A right to develop or to continue the development of property notwithstanding the 2010 Comprehensive Plan may be found to exist whenever the applicant proves by a preponderance of evidence that the owner, acting in good faith upon some act or omission of the City, has made a substantial change in position or has incurred such extensive obligations and expenses that it would be highly inequitable and unjust to destroy the right to develop or to continue the development of the property.
(Section IV.1.a of the Ordinance.)
Interstate's Application.
Common law vesting under the ordinance contains essentially the same elements of proof as those required to establish equitable estoppel pursuant to case law. Florida courts have described the doctrine of equitable estoppel as follows:
The doctrine of equitable estoppel will limit a local government in the exercise of its zoning power when a property owner (1) relying in good faith (2) upon some act or commission of the government (3) has made substantial change in position or incurred such excessive obligations and expenses that it would be highly inequitable and unjust to destroy the rights he has acquired.
Smith v. Clearwater, 383 So.2d 681, 686 (Fla. 2d DCA 1980). See also, Key West v. R.L.J.S. Corporation, 537 So. 2d 641 (Fla. 3d DCA (19890 ; and Harbor Course Club, Inc. v. Department of Community Affairs, 510 So.2d 915 (Fla. 3d DCA 1987).
Interstate contends that it has meet its burden of proof in establishing "common law vesting" by a preponderance of the evidence. Interstate argues that there have been governmental actions upon which it justifiably relied. Interstate contends that these actions include:
C-2 zoning at the time of the purchase of the property.
Approval of the Preliminary Subdivision Plat on January 18, 1990.
Rezoning of the A-2 parcel on April 4, 1990.
Issuance of the Utility Agreement.
Interstate argues that, in reliance upon the C-2 zoning classification, it expended $748,000 for the purchase of the property in 1986. Interstate concedes that it cannot prevail by reliance on zoning alone. Section
IV.1.d. of the Ordinance provides that "A zoning classification or a rezoning does not guarantee or vest any specific development rights." This provision of the Ordinance is consistent with case law. See Miami Beach v. 8701 Collins Ave., Inc., 77 So.2d 428 (Fla. 1955); Pompano Beach v, Yardarm Restaurant, Inc.,
509 So.2d 1295 (Fla. 4th DCA 1987); Lauderdale Lakes v. Corn, 427 So.2d 239 (Fla. 4th DCA 1983); and Gainesville v. Cone, 365 So.2d 737 (Fla. 1st DCA 1978).
Essentially, Interstate argues that it is the combination of original C-2 zoning, actions of the City in approving the A-2 to C-2 zoning request on a portion of the original plat, approval of the Preliminary Plat, and entering into the Utility Agreement combined with Interstate's substantial reliance and/or change in position which establishes its right to "common law vesting."
Interstate argues that it has incurred substantial costs in engineering/surveying fees as well as legal and miscellaneous expense in connection with the development of the property. Interstate's exhibits as well as testimony at the hearing in this case indicate that most such expenses were incurred in 1989 and in conjunction with negotiations for the potential sale of a portion of the original plat to Mr. Deeb. Interstate's obligations for these expenses occurred prior to approval of the Preliminary Plat (January 18, 1990), the rezoning of the A-2 parcel (April 4, 1990), and the issuance of the utility agreement (June 25, 1990). Interstate has failed to prove that it incurred these costs in reliance upon any representation, act or omission of the City.
Interstate also contends that it relied in good faith on the acts of the City in incurring substantial contractual obligations in connection with the development of its property. Interstate had constructive and actual notice of the City's preparation of the 2010 Comprehensive plan at the time the Preliminary Plat was being prepared. Interstate has failed to prove that the City was privy to the Purchase and Sale Agreement prior to the date Interstate signed the contract in December 1989. The Utility Agreement contains no representations or commitments by the City as to any specific use of Interstate's property and contemplates only a general "commercial development". Interstate knew that the 2010 Comprehensive plan was being developed months before the Utility Agreement was issued by the City. Interstate has failed to prove that it incurred contractual obligations based upon its "good faith" reliance on any representation, act or omission of the City.
Interstate argues that in this case that zoning, when considered in connection with other government actions and/or substantial reliance by the owner in changing his position to his detriment, is enough to establish equitable estoppel. Interstate acknowledges that equitable estoppel is
identical to "common law vesting" under the Ordinance. In support of its argument, Interstate relies upon Hollywood Beach Hotel Company v. City of Hollywood, 329 So.2d 10 (Fla. 1976), Town of Largo v. Imperial Homes Corporation, 309 So.2d 571 (Fla. 2d DCA 1975) and, Board of County Commissioners of Metropolitan Dade County v. Lutz, 314 So.2d 815 (Fla. 3d DCA 1975).
In Hollywood Beach Hotel Company, supra, the Florida Supreme Court outlined a pattern of conduct by the City that involved, among other actions held detrimental to the developer, issuance and continuation of a building permit, approval of zoning changes, subsequent reevaluations of the zoning, and denial of previously approved zoning changes without notice. 329 So.2d 12-13. In applying the doctrine of equitable estoppel against the City, the Court found that the City had engaged in a course of "inaction" followed by
subsequent arbitrary conduct that the court equated with "unfair dealing". Id.,
ORDERED that the denial of Petitioner's Application by the Staff Committee is AFFIRMED.
DONE AND ENTERED this 10th day of December, 1990, in Tallahassee, Florida.
JAMES W. YORK
FILED with the Clerk of the Division of Administrative Hearings this 10th day of December, 1990.
The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioner, Thomas W. Anthony, Interstate Tallahassee West:
The following rulings are made on the proposed findings of fact submitted on behalf of the Respondent, City of Tallahassee:
1. The proposed findings of fact in paragraphs 1-31 are adopted in material part by the Final Order.
Charles A. Francis, Esquire Francis & Sweet
James R. English, Esquire and John Sytsma, Esquire
Judicial review of this decision is available to the Petitioner and Respondent and shall be by common-law certiorari to the Circuit Court of the Second Judicial Circuit.
