STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
OCHLOCKNEE MANAGEMENT )
CORPORATION, )
)
Appellant, )
)
vs. ) CASE NO. 90-6337VR
)
LEON COUNTY, )
)
Respondent. )
)
FINAL ORDER
This case came before the undersigned pursuant to Section 120.65(9), Florida Statutes (1989), and Leon County Ordinance No. 90-31, adopted July 16, 1990.
STATEMENT OF THE ISSUE
Whether the Ochlocknee Management Corporation has demonstrated that development rights in certain real property it owns have vested against the provisions of the 2010 Comprehensive Plan?
PRELIMINARY STATEMENT
An Application for Vested Rights Determination dated August 1, 1990, was filed with the Tallahassee-Leon County Planning Department by the Appellant, Ochlocknee Management Corporation. The Application for Vested Rights Determination was ultimately reviewed by the Respondent,, Leon County, and was denied. Notice of the denial was provided to Ochlocknee Management Corporation by letter dated August 27, 1990. By letter dated September 5, 1990, the denial was appealed by Ochlocknee Management Corporation. On or about October 5, 1990, Leon County referred the matter to the Division of Administrative Hearings for assignment of a Hearing Officer.
Pursuant to an agreement of the parties, a hearing was held on October 25, 1990, to give the parties an opportunity to supplement the record with additional documentary evidence and testimony. At the commencement of the hearing, which was conducted in accordance with Leon County Ordinance No. 90-31, the transcript of the hearing before Leon County, 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.
Ochlocknee Management Corporation presented the testimony of Jody Elliott.
Leon County did not offer any testimony or exhibits.
The parties were informed that they could file a proposed final order before this Final Order was issued. Both parties indicated that they would not file a proposed final order.
FINDINGS OF FACT
The Initial Purchase.
In January, 1986, Ochlocknee Management Corporation (hereinafter referred to as "Ochlocknee"), began negotiations for the purchase and development of land located on Buck Lake Road (hereinafter referred to as the "Buck Lake Property"). On January 25, 1986, a document indicating an intent to sell 100 acres of the Buck Lake Property to Ochlocknee was executed.
On October 31, 1986, a Contract for Sale was entered into between Ochlocknee and the owners of the Buck Lake Property. Pursuant to the Contract for Sale, Ochlocknee agreed to purchase 100 acres of the Buck Lake Property (hereinafter referred to as the "100 Acres").
The 100 Acres were to be developed in three phases by Ochlocknee. The development was named Avondale.
In February of 1987, the 100 Acres were rezoned and platted.
The Development of Units I, II and III.
Development of Avondale Unit I began in March, 1987.
In August, 1987, the Unit I plat was recorded. All roads, utilities and storm water for Unit I were complete.
In April, 1988, development of Avondale Unit II began.
The development of Unit II began approximately 8 months after the Unit I plat was recorded.
In October, 1988, the Unit II plat was recorded. All roads, utilities and storm water for Unit II were complete.
In May, 1989, development of Avondale Unit III began.
The development of Unit III began approximately 7 months after the Unit II plat was recorded.
In November, 1989, the Unit III plat was recorded. All roads, utilities and storm water for Unit III were complete.
During the construction of Unit III Ochlocknee intended to purchase an additional parcel of the Buck Lake Property. This property was to be developed as additional phases or units of the Avondale development, including Avondale Unit IV, the development which is the subject of this proceeding.
When constructed, the main road running through Units I, II and III was intended to continue through, and serve, Avondale Unit IV. The road is the only road providing access between Unit IV and Buck Lake Road.
Utilities for Unit III were designed and stubbed to serve Unit IV.
The weight of the evidence failed to prove that any action which Leon County took in approving the development of Units I, II, or III could have been reasonably relied upon by Ochlocknee in its development of Unit IV. Most of Leon County's actions in approving the development of Avondale were taken before the Unit IV property was even purchased. Additionally, the evidence failed to prove that Leon County specifically reviewed any plans concerning Ochlocknee's plans to develop Unit IV until after the preliminary plat for Unit IV was filed for approval.
The Second Purchase.
In November, 1988, Ochlocknee began negotiations for the purchase of the additional parcel of the Buck Lake Property to be developed as Unit IV. The property consisted of 40.5 acres and was to be developed as Unit IV, the development at issue in this proceeding, and Unit V.
In March, 1989, the owners of the 40.5 acres applied for rezoning of the 40.5 acre parcel from A-2 (agricultural use) to R-1 (residential use).
In March, 1989, Ochlocknee entered into a Contract for Sale and Option, pursuant to which Ochlocknee was to purchase the 40.5 acres.
Unit IV was to consist of 10 acres of the parcel. The 10 acres abut Unit III. The remaining 30.5 acres of the parcel were to be developed as Unit V.
In May, 1989, the 40.5 acre parcel was rezoned as R-1, limited use. The zoning limited septic tanks on the property to 2.2 units per acre.
On June 27, 1989, Ochlocknee purchased the 10 acres to be developed as Unit IV.
The Regional Stormwater Facility.
In April, 1988, Poole & Associates, Inc. (hereinafter referred to as "Poole"), prepared plans and designs for a regional stormwater facility for 126 acres of the Buck Lake Property. Poole provided the engineers for Avondale. The plan developed by Poole was intended to handle stormwater for all of Units II and III, all of what was to be Unit IV, part of what was to be Unit V and part of the Buck Lake Property which was not to be developed by Ochlocknee. This regional stormwater facility will hereinafter be referred to as the "Stormwater Facility".
The plans and designs for the Stormwater Facility were completed before Unit IV was purchased by Ochlocknee and before Unit IV was rezoned from A-2 to R-1.
In July, 1989, Ochlocknee began construction of the Stormwater Facility.
Ponds used in the Stormwater Facility are located on Unit III.
In November, 1989, when the Unit III plat was recorded, the Stormwater Facility was substantially completed. The Stormwater Facility was generally approved upon the recording of the Unit III plat. Recording of the Unit III plat and the approval of the Stormwater Facility only applied to the use of the Stormwater Facility for Unit III. The use of the Stormwater Facility for Unit
IV was not approved or even reviewed by Leon County in November, 1989. Ochlocknee was required to maintain the Stormwater Facility for an additional year after it was approved for Unit III.
After approval of the Stormwater Facility for Unit III, problems arose with the Stormwater Facility. These problems began as early as August, 1989 based upon an August 31, 1989, letter from Broward Davis & Assoc., Inc., to Ochlocknee.
In a letter dated November 22, 1989, from the Respondent's engineering inspectors, Poole was provided with a "punch list" of problems associated with Units I, II and III, including problems associated with the Stormwater Facility. The punch list was developed during a meeting held on November 21, 1989.
Ochlocknee informed Leon County that the problems raised in the letter referred to in finding of fact 29 would be resolved in 30 days. The problems continued, however, into 1990. Efforts continued during the remainder of 1989 and early 1990 to resolve the problems.
On January 17, 1990, a new Environmental Management Act became effective in Leon County. Ochlocknee was required to insure that its proposed use of the Stormwater Facility for Unit IV complied with the Act.
In a letter dated February 22, 1990, Leon County notified Poole that preliminary plans for the development of Unit IV which had been submitted to Leon County had been reviewed. Poole was informed that additional information concerning the preliminary site plans was needed before Unit IV could be approved for development. Among other things, Leon County informed Poole that additional information concerning the use of the Stormwater Facility for Unit IV would have to be submitted.
Unit IV Development.
In October, 1988, Poole prepared a preliminary site plan for the development of Unit IV. These plans were prepared before the property which constitutes Unit IV was purchased or rezoned from A-2 to R-1.
On June 27, 1989, Ochlocknee purchased the 10 acres of Unit IV for
$104,956.50.
In November, 1989, Ochlocknee entered into an agreement with Poole to design roadways, utilities and obtain construction approvals for Unit IV.
On December 1, 1989, preliminary plat approval for Unit IV was applied for. The preliminary plat was approved by the Tallahassee-Leon County Planning Department on January 10, 1990.
On January 17, 1990, the City of Tallahassee approved the water distribution plans for Unit IV.
On January 12, 1990, the City of Tallahassee agreed to provide water and electrical service for Unit IV.
On February 2, 1990, a commitment for a construction loan for Unit IV was received by Ochlocknee.
The Leon County comprehensive plan was submitted to the Department of Community Affairs on February 1, 1990. Ochlocknee should have been aware of the drafting of the comprehensive plan and the fact that it had been provided to the Department of Community Affairs for approval.
41 In March, 1990, Poole completed final construction drawings for the Unit IV roadways.
In April, 1990, Ochlocknee received contracts for the construction of roadways and utilities for Unit IV.
In May, 1990, Poole held an onsite pre-construction conference with Leon County officials, utility providers and construction personnel.
Poole placed stakes for clearing limits on Unit IV during May, 1990.
On June 29, 1990, Leon County approved roadway construction plans for Unit IV.
At the time that the preliminary plat for Unit IV was filed by Ochlocknee for approval, Ochlocknee knew that the Stormwater Facility needed to be modified before development of Unit IV would be approved. Despite this knowledge, Ochlocknee chose to continue to propose that the Stormwater Facility be used for Unit IV. These problems continued throughout the time after the preliminary plat for Unit IV was filed. In May, 1990, Leon County informed Ochlocknee that a permit for clearing and grading, the last permit needed to begin construction, would not be issued until the Stormwater Facility proposed for Unit IV was modified and the problems previously identified by Leon County with the Stormwater Facility in 1989, were corrected.
Construction on Unit IV has not commenced.
Costs Associated with Unit IV.
The cost of rezoning the 10 acres of Unit IV was $2,911.25 plus a
$300.00 fee. The $300.00 fee was incurred in March, 1989, before the Unit IV property was purchased or the rezoning had taken place. Therefore, the fee was not incurred in reliance upon any representation from Leon County. The
$2,911.25 cost was incurred between October, 1988 and May, 1989. This amount was incurred before the purchase of the Unit IV property or the approval of the rezoning. Therefore, this cost was not incurred in reliance upon any representation from Leon County.
The cost of purchasing the 10 acres which are to be developed as Unit IV was $104,956.50. This cost was incurred in June of 1989. The only action taken by Leon County concerning any possible development of Unit IV prior to the time this cost was incurred was to approve rezoning Unit IV from A-2 to R-1.
The cost of purchasing the 10 acres of Unit IV was not, therefore, incurred in reliance upon any action of Leon County other than approval of the rezoning of Unit IV.
The cost of constructing the Stormwater Facility attributable to Unit IV was approximately $8,000.00. This cost was incurred between July, 1989, and November, 1989. Therefore, the cost was incurred after the Unit IV property was rezoned but before the preliminary plat and the development plans for Unit IV
were approved by Leon County. Therefore, the cost of the Stormwater Facility attributable to the Unit IV property was not incurred in reliance upon any action of Leon County other than approval of the rezoning of Unit IV.
Ochlocknee failed to present sufficient evidence to conclude what expenses were incurred by it in stubbing the road and utilities that run through Units I, II, and III are attributable to Unit IV. The weight of the evidence also failed to prove when any such expenses were incurred. These expenses were incurred sometime after the development of Unit I began (before the Unit IV property was acquired or rezoned) and sometime before Unit III was completed (before the preliminary plat for Unit IV was approved). Therefore, any expenses attributable to Unit IV for the road and utilities were incurred before Leon County took any action with regard to the development of Unit IV or were incurred only in reliance upon the rezoning of the Unit IV property.
Engineering, surveying and permitting costs associated with Unit IV totalled $13,384.49. These costs were incurred between January, 1990 and May, 1990. Prior to the expenditure of these funds Leon County had approved the rezoning of Unit IV, the preliminary plat and some of the other plans for the development of Unit IV. All of these costs were incurred after Ochlocknee had been informed that there was a problem with the Stormwater Facility. All of the engineering costs were incurred before Leon County had indicated that it would approve the development of Unit IV.
On April 25, 1990, Ochlocknee refinanced the note for the 10 acres of Unit IV. The new note was for $219,750.00. This amount was borrowed to refinance the cost of purchasing the 10 acres and to pay construction costs for the development of Unit IV. The funds intended for construction costs for Unit IV have not, however, been expended. The weight of the evidence failed to prove what costs Ochlocknee incurred in obtaining the $219,750.00 note.
All of the costs incurred by Ochlocknee relating to the development of Unit IV were incurred in an effort to obtain approval from Leon County for the development of Unit IV. The costs were incurred before any representation from Leon County that development of Unit IV would be allowed to proceed. Some of the costs were incurred before the Unit IV property was rezoned from an agricultural use to R-1. Leon County had taken no action before approval of the rezoning. Some of the costs were incurred only in reliance upon the rezoning of the Unit IV property. Finally, all of the costs were incurred in an effort to obtain approval to develop Unit IV and before Leon County indicated through any action that development of the property would be allowed to proceed. These costs were incurred at a time when Ochlocknee should have known that the development of Unit IV would probably have to be consistent with the 2010 Comprehensive Plan.
Procedure.
On or about August 1, 1990, Ochlocknee filed an Application for Vested Rights Determination (hereinafter referred to as the "Application"), with Leon County.
The following information concerning the development of Unit IV was contained on the Application:
"Ochlocknee Management" is listed as the "Owner/Agent."
Question 3 of the Application requests the name of the project, including the name and address of each owner of, and interested party in, the project or property. "AVONDALE UNIT IV" was included as the response to question 3.
The project is described as "22 Residential Lots on
10 acres, Proposed with Public Road, Water, and Recorded Plat."
The project location is described as "AVONDALE WAY, SOUTH OF AVONDALE III."
Total project costs are estimated at "$226,205.95" and it is estimated that "$126,952,24 " have been expended to date.
"Progress . . . Towards Completion" is described as: (1) all utility site, drainage plans completed as of May 4, 1990; (2) preliminary plat approval 1/10/90, water plans approved 2/1/90 and environmental permit 6/27/90; and (3) the drainage facility located in Unit III is complete.
"Preliminary Plat, Water Plan Approval, Environm. Permits" are included as forms of "government approval."
The response to question 10 of the Application, which requests information concerning government action relied upon prior to committing funds towards completing the project, was "[s]ubdivision Ordinance for Preliminary Plat, The Letter of Agreement, Policy & Procedures Manual for Utilities and the Environmental Management Act for the Stormwater Permits."
In a letter dated August 7, 1990, Ochlocknee was informed that its Application was being referred to a Staff Committee comprised of Jim English, Mark Gumula, Howard Pardue, Buddie Holshouser and Herb Thiele.
By letter dated August 24, 1990, Ochlocknee provided additional information for the Staff Committee to consider.
On August 27, 1990, a hearing was held to consider the Application before the Staff Committee. Barry Poole, of Poole, and Jody Elliott, of Ochlocknee, testified.
By letter dated August 27, 1990, Mark Gumula, Director of Planning of the Tallahassee-Leon County Planning Department informed Ochlocknee that the Application had been denied.
By letter dated September 5, 1990, to Mr. Gumula, counsel for Ochlocknee appealed the decision to deny the Application.
By letter dated October 5, 1990, the Division of Administrative Hearings was requested to provide a Hearing Officer to review this matter.
By agreement of the parties, the undersigned allowed the parties to supplement the record in this matter on October 25, 1990.
During the hearing before the undersigned Ochlocknee stipulated that it had sought approval of its Application based upon "common law vesting" and not "statutory vesting" as those terms are defined in Leon County Ordinance 90- 31.
CONCLUSIONS OF LAW
Jurisdiction.
The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.65(9), Florida Statutes (1989), and Leon County Ordinance No. 90-31 (hereinafter referred to as the "Ordinance").
The Ordinance.
Pursuant to Section 163.3167, Florida Statutes, Leon County was required to prepare a comprehensive plan governing the use and development of land located within Leon County. In compliance with Section 163.3167, Florida Statutes, Leon County adopted a comprehensive plan (hereinafter referred to as the "2010 Comprehensive Plan), which was submitted to the Department of Community Affairs for review on February 1, 1990.
Leon County adopted the Ordinance to insure that existing rights to develop property of Leon County 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 provisions of the 2010 Comprehensive Plan.
Section I of the Ordinance.
Pursuant to the Ordinance any Leon County property owner who believes that his or her property rights to develop property are vested and, therefore, believes that the property may be developed without complying with the 2010 Comprehensive Plan must file an application provided by Leon County 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. Section IV.C.2 of the Ordinance.
Applications to determine if development rights have vested are initially reviewed for technical correctness by the Tallahassee-Leon County Planning Department's (hereinafter referred to as the "Planning Department"), staff. Section III.C.1 of the Ordinance. Once the Application is accepted, the staff of the Planning Department makes the initial determination whether development rights in the property 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 County Attorney, the Director of Planning and the Director of Environmental
Management is to be conducted within fifteen days after the Planning Department staff's decision. Section III.C.3 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.C.4 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.C.5 of the Ordinance provides for an appeal to a Hearing Officer. The nature of such an appeal is set out in Section III.C.5.b 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, nontechnical 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.C.5.c of the Ordinance provides the following:
If the Staff Committee record of their 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.C.5.e and f 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.C.5.g 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 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 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 the 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 in property 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 matter Ochlocknee stipulated that the development does not meet the definition of statutory vesting and argued that its development rights in Unit IV of the Avondale development have vested pursuant to the common law vesting definition of the Ordinance. "Common law vesting" is defined as follows:
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 County, 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.A.1.a of the Ordinance.
Ochlocknee's Application.
Common law vesting under the Ordinance contains the same elements of proof as the doctrine of equitable estoppel. The doctrine of equitable estoppel has been described as follows:
The doctrine of equitable estoppel will limit a local government in the exercise of its zoning power when a property owner (1) relying in good faith (2) upon some act or omission of the government (3) has made such a substantial change in position or incurred such excessive obligations and expenses that it would be highly inequitable and unjust to destroy the rights he has acquired.
Smith v. Clearwater, 383 So.2d 681, 686 (Fla. 2d DCA 1980). See also, Key West
v. R.L.J.S. Corporation, 537 So.2d 641 (Fla. 3d DCA 1989); and Harbor Course Club, Inc. v. Department of Community Affairs, 510 So.2d 915 (Fla. 3d DCA 1987).
Ochlocknee has argued that it has proved by a preponderance of the evidence that all of the elements of equitable estoppel and, therefore, common law vesting as defined in the Ordinance, exist in this case. The actions of Leon County that Ochlocknee has suggested it relied on include the following:
Approval of the rezoning of the property to be developed as Unit IV from A-2 to R-1 in May, 1989;
Approval of the Preliminary Plat for Unit IV in January, 1990; and
Approval of the water and utilities plans for Unit IV in January, 1990.
The changes in position or obligations and expenses that Ochlocknee has argued it incurred in reliance upon Leon County's actions include a number of expenditures associated with the development of Unit IV that Ochlocknee has made. Those expenditures include the costs of rezoning and purchasing the Unit IV property, engineering, surveying and permitting costs associated with Unit IV, a portion of the cost of constructing the Stormwater Facility, part of the costs associated with the construction of the main road and utilities attributable to Unit IV and the cost of refinancing the note issued on the purchase of the Unit IV property.
Based upon a review of the record and testimony presented at the hearing before the Staff Committee and at the supplemental hearing held before the undersigned on October 25, 1990, it is concluded that Ochlocknee has failed to prove that the Staff Committee's conclusion that Ochlocknee did not prove that the elements of common law vesting apply to Unit IV cannot be sustained by a preponderance of the evidence. The weight of the evidence supports the Staff Committee's decision that common law vesting has not been proved.
First, Ochlocknee has failed to prove that all of the expenditures it made in attempting to develop Unit IV were incurred after any action was taken by Leon County with regard to the development of Unit IV. In particular, the costs associated with the rezoning of the Unit IV property were incurred before the property had even been purchased by Ochlocknee and before Leon County made any representation upon which Ochlocknee could have reasonably relied. The property was zoned for agricultural use at the time that these expenses were incurred.
Secondly, some of the expenses Ochlocknee incurred were incurred solely in reliance upon Leon County's approval of the rezoning of the Unit IV property. Those expenses include the cost of purchasing the Unit IV property, the cost of constructing the Stormwater Facility attributable to Unit IV and some portion of the cost of constructing the road and utilities attributable to Unit IV (the amount of this cost and the exact time it was incurred was not proved by Ochlocknee). Reliance upon zoning alone is insufficient as a matter of law to conclude that common law vesting applies. Section IV.A.4 of the Ordinance provides that "[a] zoning classification or a rezoning does not guarantee or vest any specific development rights." This provision 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).
Finally, Ochlocknee failed to prove that any other obligation or expense it incurred after Leon County approved the preliminary plat for Unit IV and some of the plans for the development of Unit IV was incurred by Ochlocknee in "good faith" reliance upon any act of Leon County other than Leon County's approval of the rezoning of the Unit IV property. The only actions of Leon County taken after the approval of the rezoning of the Unit IV property Ochlocknee has argued it relied upon include the approval of the preliminary plat for Unit IV and the approval of some of the plans associated with the development of the Unit IV property. The approval of the preliminary plat took place in January, 1990. The only expenditure Ochlocknee proved it incurred after the approval of the preliminary plat was $13,384.49 in engineering, surveying and permitting fees. When these costs were incurred Ochlocknee should have known that it is was likely that the development of Unit IV would be subject to the 2010 Comprehensive Plan. Additionally, prior to January, 1990, Ochlocknee knew or should have known that its proposed development of Unit IV would not be approved by Leon County under then existing law because of, among other problems, the design of the Stormwater Facility. Those problems began in 1989, before the preliminary plat was approved. In May, 1990, Leon County did inform Ochlocknee that Leon County was prepared to issue most of the permits necessary to develop Unit IV. Most of the costs had, however, been incurred before May, 1990. Also, Leon County, in indicating that it was prepared to issue most of the permits, informed Ochlocknee that there were still problems which needed to be resolved with the Stormwater Facility before the proposed development could be approved. It cannot therefore be concluded that any representation was made by Leon County before the costs were incurred that Unit IV could be developed without complying with what was to become the 2010 Comprehensive Plan which Ochlocknee could have relied upon in "good faith". To the contrary, Ochlocknee was informed before, during and after it incurred the
$13,384.49 of fees that it would not be able to develop Unit IV as proposed. See Sharrow v. Dania, 83 So.2d 274 (Fla. 1955).
Ochlocknee has also attempted to prove that it would have begun development of Unit IV but for the problems associated with approval of the Stormwater Facility. Evidently Ochlocknee believes that its development of Unit IV would have been far enough along if it had not experienced the Stormwater Facility problems that it would have been statutorily vested. The first problem with this argument is that Ochlocknee failed to prove that the problems associated with the use of the Stormwater Facility for Unit IV were the responsibility of anyone other than Ochlocknee. It chose to use the Stormwater Facility for Unit IV and it was in its power alone to correct the problems associated with the Stormwater Facility. More importantly, Ochlocknee failed cite any authority, either case law or a part of the Ordinance, that supports a conclusion that Ochlocknee's development rights should be considered vested because it might have been further along on the development of Unit IV but for the Stormwater Facility problems. What "might have been" does not justify concluding that Ochlocknee's development rights in Unit IV have vested. See Gross v. Riviera Beach, 367 So.2d 648 (Fla. 4th DCA 1979).
ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that the denial of Ochlocknee's Application by the Staff Committee
is AFFIRMED.
DONE and ENTERED this 26th day of November, 1990, in Tallahassee, Florida.
Copies Furnished To:
Charles Francis, Esquire Post Office Box 10551
LARRY J. SARTIN
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings
this 26th day of November, 1990.
Tallahassee, Florida 32302
Herbert W.A. Thiele, Esquire County Attorney
Leon County Courthouse Tallahassee, Florida 32301
Sandy O'Neal, Clerk
Board of County Commissioners Leon County Courthouse Tallahassee, Florida 32301
Mark Gumula
Director of Planning
Tallahassee-Leon County Planning Department
300 South Adams Street Tallahassee, Florida 32301
NOTICE OF APPEAL RIGHTS
Judicial review of this decision is available to the Appellant and Leon County and shall be by common-law certiorari to the Circuit Court of the Second Judicial Circuit.
| Issue Date | Proceedings |
|---|---|
| Nov. 26, 1990 | Final Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Nov. 26, 1990 | DOAH Final Order | Development of real property not estop Leon County from requiring compliance with comprehensive plan. |
