STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CENTERVILLAGE LIMITED )

PARTNERSHIP, )

)

Petitioner, )

vs. ) CASE NO. 90-6431V

)

CITY OF TALLAHASSEE, )

)

Respondent. )

)

FINAL ORDER

This case came before the undersigned pursuant to Section 120.65(9), Florida Statutes (1989), and the City of Tallahassee Ordinance No. 90-O-0043AA, adopted July 16, 1990.

APPEARANCES

For Petitioner: Russell D. Gautier, Esquire

306 East College Avenue Tallahassee, Florida 32301

For Respondent: Patrick E. Hurley, Esquire

John H. Sytsma, Esquire

HENRY, BUCHANAN, MICK & ENGLISH, P.A.

117 South Gadsden Street Post Office Drawer 1049 Tallahassee, Florida 32302

STATEMENT OF THE ISSUE

Whether Centervillage Limited Partnership has demonstrated, by a preponderance of evidence, that development rights in certain real property it owns have vested against the provisions of the Tallahassee-Leon County 2010 Comprehensive Plan.

PRELIMINARY STATEMENT

An Application for Vested Rights Determination (hereinafter referred to as Application) dated August 6, 1990, was filed with the Tallahassee-Leon County Planning Department by Petitioner, Centervillage Limited Partnership (Centervillage). The Application was ultimately reviewed by the Staff Committee for the Respondent, City of Tallahassee (City), and was denied. Notice of the denial was provided to Centervillage by letter dated September 17, 1990. By letter dated September 28, 1990, the denial was appealed by Centervillage. On October 10, 1990, the City 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 November 26, 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 Tallahassee Ordinance No. 90-O- 0043AA (Ordinance), the transcript of the hearing before the City's Staff Committee, exhibits filed with the original request for the assignment of a Hearing Officer and supplemental documents were accepted into evidence.

Centervillage presented the testimony of Helge Swanson, Tony Park, Richard Moore and James E. Maurin. The City did not offer any testimony or exhibits.

The parties agreed to file a proposed final order by December 7, 1990. Both parties did file timely proposed final orders. Since the deadline for filing proposed final orders exceeded 10 days after the date of hearing, the parties waived the requirement that an order be rendered 30 days after the hearing. Rule 22I-6.031, Florida Administrative Code.

By agreement of the parties, the record and exhibits will be referenced in the following form: References to the record of the hearing conducted by the Staff Committee on September 10 and 17, 1990, will be shown as (e.g., T-1 and T-

2 p. 10). References to the record of the hearing conducted by DOAH on November 26, 1990, will be shown as (e.g., T-3 p. 10). References to the Staff Committee exhibits will be by the assigned Code (e.g., App. Ex. E, E-8). References to the supplemental exhibits will be by the assigned Code (e.g. Appellant's exhibit 8)

SUPPLEMENTAL EVIDENCE

The Hearing Officer allowed the introduction of supplemental evidence as follows:

1. Affidavit of John C. Pelham, Assistant County Attorney. (Appellant's Ex. 3)

   
   

2. September 21, 1990, Memorandum from Rob Magee. (Appellant's Ex. 4)

   
   

3. The Vesting Ordinance. (Appellant's Ex. 5)

   
   

4. The application files from other projects reviewed by the Committee and the Leon County staff review committee. (Appellant's Ex. 6) These exhibits were introduced over objection of the City. (T-3 pp. 36-47) These exhibits are further addressed in the Appendix to this Final Order.

   
   

5. The survey prepared by Broward Davis and Associates, Inc., of the property. (Appellant's Ex. 7).

   
   

6. Aerial photograph of the project. (Appellant's Ex. 8)

FINDINGS OF FACT

1. Procedure.

   
   

   1. On or about August 6, 1990, Centervillage filed an Application for Vested Rights Determination with the Tallahassee-Leon County Planning Department. (Application VR0027T)

   2. The following information concerning the development of the Centervillage property was contained on the Application:

      
      

      1. "Gerald E. Songy" is listed as the "owner/agent."

      2. Question 3 lists the name of the project as "Centervillage Limited Partnership."

         
         

      3. "Progress . . . Toward Completion" is described as:(1) planning, (2) site preparation, (3) Leon County environmental permits, (4) DER Dredge and Fill Permit,

         (5) DOT Drainage Connection Permit.

         
         

   3. Original P.U.D., Rezoning, Minor subdivision Approval and a stormwater agreement with Leon County, are included in Centervillage's application as forms of government approvals and as the actions of government relied on prior to committing funds toward completion of the proposed development.

      
      

   4. On September 10 and 17, 1990, hearings were held to consider the Application before the Staff Committee comprised of the City Attorney, the Director of Planning for the Tallahassee-Leon County Planning Commission and the Director of Growth Management for the City.

      
      

   5. By letter dated September 17, 1990, Mark Gumula, Director of Planning of the Tallahassee-Leon County Planning Department informed Centervillage that the Application had been denied.

      
      

   6. By letter dated September 28, 1990, to Mr. Gumula, Centervillage appealed the decision to deny the Application.

      
      

   7. By letter dated October 10, 1990, the Division of Administrative Hearings was requested to provide a Hearing Officer to review this matter.

      
      

   8. By agreement of the parties, the undersigned allowed the parties to supplement the record in this matter on November 26, 1990.

      
      

2. The Property.

   
   

   1. Centervillage currently owns approximately 27.20 acres of property (the Property) located at the Northeast corner of Capital Circle, Northeast, and Centerville Road, Tallahassee, Florida (Application).

      
      

   2. Centervillage began assembling the Property, through various transactions, in the early 1980's. By October, 1984, Centervillage had acquired the bulk of the Property. (T-3 p. 23)

      
      

   3. Prior to Centervillage's initial acquisition of the Property, the prior owners of portions of the Property began development of the site as an industrial, mini-warehouse development. This prior development activity involved a series of violations of state and local environmental laws and regulations. (T-3 pp. 50-51, 59)

      
      

   4. As a result of improper development activities by the prior owners of the Property, fines were imposed and, at the time Centervillage made the initial purchase, the Property was subject to a Florida Department of Environmental Regulation (DER) consent order. (T-3 p. 26)

3. Development Activity.

   
   

   1. The project that Centervillage proposes to develop is a shopping center containing 200,000 square feet of gross leasable space on approximately

      18 of the total 27.20 acres. (T-3 p. 96) The balance of the property is dedicated to stormwater facilities. (T-3 pp. 96-99)

      
      

   2. During the process of acquiring the 27.20 acres it currently owns, Centervillage began preparing the Property for future development by clearing and demolishing existing structures such as mobile homes, concrete driveways, and wells. (T-1 pp. 27-28) Permits were obtained early in the process to demolish these structures and in December 1984, the front corner of the Property was selectively cleared. (T-1 p. 28)

      
      

   3. In April, 1986, Leon County (the County) began construction of a ditch on a portion of the perimeter of the Property. The purpose of this ditch was to allow stormwater discharge from a Centerville Road construction project that the County was involved in. The County had been unable to locate an alternative site to provide any catchment and holding facility to handle the stormwater run off and, as a result, had encountered problems with the Florida Department of Environmental Regulation (DER). (T-3, pp. 70-71)

      
      

   4. At the same time, Centervillage was involved in attempting to resolve problems associated with improper development activity on the Property by its previous owners. These factors led to cooperative efforts on the part of both Centervillage and the County in dealing with the DER and to conceptual agreements between the Centervillage and the County regarding aspects of future development of the Property. Centervillage granted the County a temporary easement for the purpose of constructing the drainage ditch. (T-1 p. 28, T-3 p.

      52) The drainage ditch constructed on the site turned out to be a "long, skinny holding pond." (T-1 p. 29) The County constructed over 80 percent of the overall onsite perimeter ditch in mid to late 1986. (T-1 p. 29) The property subject to the temporary easement will be conveyed to the County pursuant to a formalized conceptual agreement between Centervillage and the County. (App. Ex. G, G-8) This agreement will be the subject of expanded discussion later in this Final Order.

      
      

   5. Construction of the majority of the current improvements on the Property began in June of 1989. The work consisted of: construction of a holding pond sized for commercial development; construction of some two and a half acres of wetlands; and construction of the perimeter ditch from the north end of the project to Centerville Road, then west along Centerville Road under Capital Circle. (T-1 pp. 30-31) The work also included vegetation of the perimeter ditch to create wetlands. (T-1 p. 31) This development activity also involved the placing of 50,000 to 60,000 cubic yards of fill material on the site. (T-1 p. 30)

      
      

   6. In May and June of 1989, Centervillage acquired over six acres of adjoining property in order to construct a stormwater facility which it had agreed to provide as part of its conceptual agreements with the County and in partial mitigation against prior improper development on the Property. (App. Ex. H, H-2; T-1 p. 11; T-3 pp. 125-126; T-3 pp. 26-27)

      
      

   7. The two and a half acres of new wetlands Centervillage constructed on the property was also in mitigation for prior improper development activity engaged in by previous owners of the Property. (T-1 p. 30)

   8. Further development has been permitted but not constructed. This work is to involve the construction of culverts, crossings, and onsite, upland filtration facilities. (T-1 pp. 31-32)

      
      

   9. As a result of the 1989 development activity, the northern 7.57 acres of the property has been excavated for the stormwater facility and some 18 acres of the Property have been filled from depths of two to six feet. (T-3 p. 97)

      
      

4. Government Approvals.

   
   

   1. In July, 1984, the City approved Centervillage's request for a Planned Unit Development (P.U.D.) to allow the Property to be developed as a shopping center to be constructed in three phases. Each phase of construction was to involve 50,000 square feet of retail space. (App. Ex. G, G-1)

      
      

   2. In December, 1984, the City approved an amendment to the previously approved P.U.D., to add additional property and to expand the size of the development by the addition of approximately 20,000 square feet of retail space. (App. Ex. G, G-2)

      
      

   3. In January, 1988, Centervillage received rezoning approval from the

      P.U.D. to Commercial Parkway, limited use site plan (CP zoning). (App. Ex. G,

      G-3; T-3 pp. 25-26) The limited use site plan outlines, among other things, the limited access to the Property and the reestablishment of the canopy road on portions of Centerville Road which abut the property. (App. Ex. G, G-3)

      
      

   4. In May, 1988, the City approved Centervillage's application for minor subdivision approval. This minor subdivision approval established one parcel as the previously developed mini-warehouse site to the east of the Property and the other parcel as the Property as it currently exists except for 2.79 acres on Capital Circle which had not been acquired at that time. (App. Ex. G, G-4) In October, 1988, the City granted a separate minor subdivision approval which addressed the additional 2.79 acres. (Minor subdivision approval, dated October 26, 1988, signed by Donny Brown, Development Coordinator for the City.) The parcel containing the mini-warehouse facility was sold in 1986, and is no longer part of the Property. (T-1 pp. 37-38)

      
      

   5. On July 22, 1988, the DER issued an environmental permit to Centervillage. (App. Ex. E, E-9) This permit was a result of extensive negotiations between DER and Centervillage and also involved the County because of the County's own permitting problems with the road improvement Project. (T-1 pp. 63-65) This DER permit specifies that the "permit does not convey any vested rights." (App. Ex. E, E-9, paragraph 3)

      
      

   6. On August 17, 1988, the County issued Environmental Management Permit #88-0299 to Centervillage. This permit was for "earth work only" and specified that "stormwater runoff [would] be required upon final development plans." (App. Ex. E, E-1)

      
      

   7. On October 25, 1988, the County accepted Centervillage's hydrological analysis on the Property. (App. Ex. E, E-3)

      
      

   8. On December 5, 1988, Centervillage received notification from the County that the project site was exempt from site plan review. (App. Ex. E, E-

      9) Currently, there is not a city-approved site plan for the Centervillage project. (T-3 p. 115)

   9. On May 3, 1989, the County issued Environmental Permit #89-0230. This permit reflects approval of an additional of 630,000 square feet of impervious surface to the site. Centervillage's application for this permit also lists the proposed use of the Property as "M-1 mini-warehouses and CP shopping center." (App. Ex. E, E-5) Centervillage began its construction of the majority of current site improvements in June of 1989. (T-1 p. 30) In meetings between Centervillage and the City it was never confirmed that the approval of an additional 630,000 square feet of impervious surface on the site was a valid assumption. (T-3 p. 138)

      
      

   10. The County issued two additional environmental permits in 1989, one for tree removal (App. Ex. E, E-6) and one for stormwater permit amendments. (App. Ex. E, E-7) In March, 1990, the County issued an additional environmental permit for tree removal. (App. Ex. E, E-8)

       
       

   11. In January and in June, 1990, the Florida Department of Transportation (DOT) issued two separate drainage connection permits to Centervillage. (App. Ex. E, E-10, E-11)

   12. Until October, 1990, the County performed the environmental regulatory services for both the County and the City. (T-3 p. 56)

       
       

   13. At the time the County issued the environmental permits described in this Final Order, there was no City of Tallahassee Environmental Ordinance. (T- 3 pp. 73-74)

       
       

   14. At the time the County issued the environmental permits described in this Final Order, the County Chief of Environmental Management regularly appeared before the Tallahassee City Commission as part of his duties in issuing environmental permits for property within the City. (T-3 p. 56)

       
       

   15. At the time the County environmental permits described in this Final Order were issued to Centervillage, the City would look to a County environmental permit before issuing a building permit. (T-3 p. 74)

       
       

   16. At the November 26, 1990, hearing in this case, the Chief of Environmental Management for the County testified that he knew of no specific resolution or ordinance that granted environmental permitting authority within city limits to the County. (T-3 pp. 74-75) However, the testimony at the November 26, 1990, hearing in this case establishes that the City relied on the County's environmental permitting in making its own permitting decisions. (T-3 pp. 56, 73-75)

       
       

   17. In practice and effect, the County was acting on behalf of the City in granting local environmental permits. (T-3 pp. 73-80)

       
       

   18. The County has never been delegated the authority to make land use decisions, such as subdivision approvals, for property within the City. (T-3 pp. 74-76)

       
       

   19. The rezoning of the Property from P.U.D. to CP Zoning, approved by the City in January, 1988, provided no specific approval of densities and intensities for development of the Centervillage project. (T-3 pp. 130-132)

   20. When Centervillage requested rezoning of the Property from P.U.D. in January, 1988, its managing general partner assumed that as part of the approved zoning change it received approval for the same density and intensity of development that existed under the P.U.D. (T-3 p. 125)

       
       

5. The Conceptual Agreement.

   
   

   1. In early 1986, the County was in the process of attempting to widen and improve Centerville Road. (T-1 p. 28) During this construction by the County, the DER asserted jurisdiction over the road project and the construction was stalled because the County did not have adequate property on which to construct facilities for the storage and treatment of stormwater runoff generated by the road construction project. (T-3 pp. 70-71, 82-84)

      
      

   2. During the initial rezoning and permitting process, Centervillage was required to address the effects of prior improper development activity engaged in on a portion of the Property by previous owners. As a result of the prior improper development on the Property, Centervillage was required to mitigate against flooding problems and to facilitate revegetation of a denuded canopy road segment along Centerville Road. (T-3 p. 52)

      
      

   3. On April 11, 1986, James G. Parrish, Administrator for the County, presented Centervillage with a conceptual agreement whereby, among other things, Centervillage agreed to grant necessary easements to the County for the construction of a drainage ditch on the Property to accept and store stormwater runoff from the County's Centerville Road improvement project. (App. Ex. G, G- 6)

      
      

   4. During 1986, the County and Centervillage cooperated through a series of permitting contacts specific to the development of a shopping center, to establish a major regional water management facility, to provide water management for the Centerville Road project, and to engage in cooperative efforts to reforest the canopy road. (T-3 pp. 52-53) These cooperative permitting contacts included contacts with the DER. (T-3 p. 53)

      
      

   5. The conceptual agreement was finally formalized and adopted by the Leon County Commission on July 18, 1989. (App. Ex. G, G-8) In this agreement, Centervillage obligated itself to acquire additional property, construct a stormwater management facility and to convey the completed facility to the County. (App. Ex. G, G-8)

      
      

   6. In the formalized conceptual agreement, the County agreed to fully cooperate in the efforts of Centervillage to obtain all permits necessary to complete all improvements in accordance with the DER permit issued to Centervillage in July, 1988. (App. Ex. G, G-8)

      
      

   7. The formalized conceptual agreement further provides that the County will not require any additional stormwater retention or detention above that required by the County environmental permit issued to Centervillage previously. (App. Ex. G, G-8)

      
      

   8. The agreement also provides that the County will allow Centervillage to develop the southwest portion of the Property, fronting Capital Circle Northeast and Centerville Road," to its fullest commercial potential, subject only to existing zoning ordinances, terms and conditions of the limited use site plan, approval of subsequent short-term applications for environmental

      management permits, and Leon County Environmental Permit number 88-0299." This portion of the agreement also provides that the property will no longer be "protected from development." (App. Ex. G, G-8, paragraph 8)

      
      

   9. Centervillage is obligated, pursuant to the agreement, to convey in excess of 7 acres of property and the drainage ditch area for no additional consideration. (T-3 pp. 85-86)

      
      

   10. Absent the agreement of Centervillage to provide stormwater drainage and retention on the Property and to convey that portion of the Property to the County, the County could not have completed the Centerville Road improvement project. (T-3 pp. 70-71)

       
       

   11. Centervillage's agreement to donate land to the County was tied to the DER permits issued to both Centervillage and the County. (T-1 p. 41)

       
       

   12. Centervillage's agreement to provide the 7.57 acre stormwater facility to the County was a required condition in connection with the issuance of the environmental management permit issued by the County. (T-3 p. 88)

       
       

   13. The City was privy to the conceptual agreement between Centervillage and the County from the development stages through to its final, formal approval by the County Commission in July 1989. The plans for the stormwater facility were discussed with and reviewed by the City, with the understanding that the city would accept and maintain the facilities. (T-3 pp. 86-87) During these discussion with City personnel, there was no indication given that the agreement included land use decisions. (T-3 pp. 90-91)

       
       

   14. The 7.57 acre stormwater facility serves more than the development area. The facility is a major component of the total drainage system for the City of Tallahassee. (T-3 p. 88) The size of the 7.57 acre stormwater facility is not directly related to the Centervillage development proposal. (T-3 p. 90)

       
       

6. Development Expenses.

   
   

   1. The cost of purchasing the original tract was $1,812,012.00. Centervillage has since sold a portion of the original tract for $738,282.00. Centervillage's net land costs for the Property are $1,073,730.00. (App. Ex. C, C-1) Centervillage incurred costs of $175,000.00 in purchasing land pursuant to the conceptual agreement with the County. (T-3 pp. 123-126) Other than the

      $175,000.00 expended pursuant to the conceptual agreement, the balance of costs of purchase of land were not incurred in reliance on any act or omission of the City.

      
      

   2. Interest and property taxes paid by Centervillage were $1,279,753.30. (App. Ex. C, C-1) No significant portion of the costs attributed to interest and property taxes were incurred in reliance on any act or omission of the City.

      
      

   3. Centervillage incurred $543,624.50 in costs associated with site work, clearing, and landscaping on the Property. Significant portions of these costs were incurred beginning in June, 1989. (T-1 pp. 30-31) These costs were substantially incurred after Centervillage had engaged in extensive negotiations with state and local government entities and after permits were issued by the state DER and DOT as well as environmental permits issued by the County. At the time the County issued these permits it was, in practice and effect, acting on behalf of the City. These negotiations, agreements, permits and approvals are outlined in the Government Approvals portion of this Final Order.

   4. Centervillage has established that it expended well in excess of

      $400,000.00 on testing, inspection, soil investigation, engineer and survey fees, architectural fees, legal and title fees and general development expenses associated with the development of the Property. (App. Ex. C, C-1) Centervillage has proved that a significant portion of these "soft costs" were expanded during the period it engaged in extensive negotiations with and after Centervillage obtained permits and approvals from the various state and local government entities as outlined in the Government Approvals portion of this Final Order.

      
      

   5. Centervillage would not have made the large expenditure of funds, or made the commitment to convey significant portions of the property to the County pursuant to the Conceptual Agreement if it had not obtained the zoning approvals and environmental permits that were necessary to construct a community size shopping center of approximately 200,000 square feet. (T-1 pp. 68-70; T-3 pp. 127-128)

      
      

   6. The evidence in this case establishes that Centervillage reasonably relied on the approvals and environmental permits it obtained from state and local governments, as well as on the conceptual agreement between Centervillage and the County in changing its position and in incurring substantial costs associated with the development of the Property.

      
      

7. Current Status of the Development.

1. Centervillage took a site that was a drainage way, added properties to it, accomplished an enormous amount of permitting and fill work to come up with a fairly level buildable site suitable for building anything allowed within the zoning and the Comprehensive Plan. (T-1 p. 18)

   
   

2. The shopping center project has been pursued by Centervillage for the past several years. Centervillage has never proposed any alternative plans to the City or other governmental authorities in the history of its project. (T-3 pp. 57-60, 82; T-1 pp. 17-18)

   
   

3. Environmental Management Permit #89-0230, issued on May 3, 1989, by the County, contemplated approval of the addition of 630,000 square feet of impervious surface to the Property. (App. Ex. E) Centervillage relied on this approval and incurred substantial costs in proceeding with the further development of the Property.

   
   

4. At the hearing on November 26, 1990, Centervillage presented the testimony of Richard Moore, a licensed professional engineer. (T-3 p. 94) Mr. Moore has been involved with the Centervillage project for seven years. (T-3 p.

   95) Mr. Moore testified that he prepared a layout based on several planning concepts on engineering design and determined that 630,000 square feet of impervious surface allowed 200,000 square feet of gross leasable space and allowed the development of adequate parking with good internal circulation and sufficient green areas to allow for aesthetic landscaping. (T-3 pp. 106-107) Mr. Moore further testified that this square footage ratio is on average with design standards accepted in the engineering community. (T-3 p. 107)

   
   

5. According to Mr. Moore's testimony, if Centervillage is required to meet consistency and concurrency requirements of the 2010 Comprehensive Plan, the shopping center development could be limited or delayed because the Property is located on a constrained roadway. (T-3 pp. 103-106)

6. The DOT and the City have scheduled widening of Capital Circle, on which the Centervillage Property fronts, for 1991. (T-3 pp. 109-110) However, based upon Mr. Moore's testimony, Centervillage has established that constrained roadway limitations could limit or delay the project under the 2010 Comprehensive Plan despite the current improvement schedule.

   
   

7. According to Mr. Moore's testimony, under the 2010 Comprehensive Plan, the proximity of the Property to Centerville Road, a canopy road, could limit the development of a shopping center to 100,000 square feet of leasable space. (T-3 pp. 103-104)

   
   

8. As of July 16, 1990, the date of adoption of the City of Tallahassee Vesting Ordinance, the stormwater facilities on the Property were not complete. Additional water treatment facilities must still be constructed for runoff from the site. (T-3 pp. 19-21)

   
   

9. No roadways, water and sewer services or electrical services have been constructed on site. (T-3 p. 108)

   
   

   CONCLUSIONS OF LAW

   
   

   1. Jurisdiction.

      
      

10. 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 City of Tallahassee Ordinance No. 90-O-0043AA (Ordinance).

    
    

    1. The Ordinance.

       
       

11. 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. 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.

    
    

12. 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 III of the Ordinance.)

    
    

13. Pursuant to the Ordinance, any Tallahassee 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 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.

    
    

14. 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 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 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.

    
    

15. 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.

    
    

16. 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.2 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.

    
    

17. 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 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.

    
    

18. Sections III.3.e.5 and 6 of the Ordinance govern the manner in which an appeal is filed and the manner in which any hearing conducted by a Hearing Officer is to be conducted.

19. Section III.3.e.7 of the Ordinance governs a Hearing Officer's decision:

    
    

    1. 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

       ....

    2. 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.

    3. 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.

    4. 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.

    5. 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.

       
       

20. 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".

    
    

    1. Statutory Vesting.

       
       

21. Section IV.1.b. of the Ordinance deals with statutory vesting and provides:

    
    

    b. Statutory Vesting

    (1) The right to develop or to continue the development of property shall be found to exist if: A valid and unexpired final development order was issued by the City prior to February 1, 1990, substantial development has occurred on a significant

    portion of the development authorized in a single final development order, and is completed or development is continuing in good faith as of July 16, 1990....

    . . .

    
    

22. Section II of the Vesting Ordinance, the definitional section, defines the terms "continuing good faith," "final development orders" and "substantial development," as used in the above-quoted Section IV.1.a. and b., as follows:

    
    

    . . .

    2. CONTINUING GOOD FAITH. As used in this ordinance shall mean the final development order for a project has not expired, and no period of ninety (90) consecutive days passes without the occurrence on the

    land, of development activity which significantly moves the proposed development toward completion, unless the developer establishes that such ninety (90) day lapse in development activity was due to factors beyond the developer's control or unless development activity authorized by a final development order has been completed on a significant portion of the development subject to said final development order and has significantly moved the entire development toward completion. (emphasis supplied).

    . . .

    5. FINAL DEVELOPMENT ORDERS. The following unexpired development orders shall be considered to be final development orders for purposes of a determination of vested rights in a previously-approved development:

    1. Exempt subdivision;

    2. Minor subdivision;

    3. Preliminary subdivision plat approval;

    4. Final subdivision plat approval;

    5. Final site plan approval (pursuant to County Ordinance 88-16);

    6. Approval of a P.U.D. concept plan;

    7. Approval of a P.U.D. final development plan;

    8. Building permit; and

    9. Any other development order which approved the development of land for a particular use or uses at a specified intensity of use and which allowed development activity on the land for which the development order was issued.

    . . .

    8. SUBSTANTIAL DEVELOPMENT. As used in this ordinance shall mean that all required permits necessary to continue the development have been obtained; permitted clearing and grading has commenced on any significant portion of the development subject to a single final development order; and the actual construction of water and sewer lines, or streets, or the stormwater management system, on said portion of the development is complete or is are progressing in a manner that significantly moves the entire development toward completion.

    
    

    1. Centervillage's Application.

       
       

23. Centervillage contends that it is entitled to a determination of vested rights under both the statutory and common law vesting provisions of the Ordinance. Centervillage did not present argument in support of its claim for statutory vesting before the Staff Committee or at the final hearing conducted on November 26, 1990. Instead, Centervillage relies on two exhibits to its Application for Vested Rights, Exhibits F and H, in support of its appeal of the Staff Committee decision. These exhibits are not persuasive.

    
    

24. The Centervillage argument for statutory vesting is contained in Exhibit H-1 and consists of a two paragraph statement. First, Centervillage argues that it has received a final development order based upon the approval by the City of Centervillage's minor subdivision application in May 1988, the

    issuance of County Environmental Management Permit #89-230, and the approval by the City of Centerville's application to rezone the Property to "CP Commercial Parkway with a limited use site plan."

    
    

25. Second, in Exhibit H-1, Centervillage contends that "substantial development" has occurred on the Property and cites documentation contained in Exhibit F in support of its argument. Exhibit F, in essence, consists of a brief description of costs associated with land acquisition and sitework on the Property and a copy of a standard form contract between Centervillage and an excavating company. Centervillage failed to meet its burden to show that the development has continued in good faith as "continuing good faith" is defined in Section IV of the Ordinance.

    
    

26. Centervillage has failed to prove that the decision of the Staff Committee to deny its application on the theory of statutory vesting is not supported by a preponderance of the evidence or that the decision departs from the essential requirements of law.

    
    

27. The decision in this appeal is based only on the common law vesting provisions of the Ordinance.

    
    

    1. Common Law Vesting.

       
       

28. Common Law vesting is defined in the Ordinance 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 he 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.)

    
    

29. 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 omission 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.

    
    

30. 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).

    1. Elements of Equitable Estoppel in this Case.

    
    

31. Good Faith.

    
    

32. The evidence in this case establishes that Centervillage has acted in good faith throughout negotiations with state and local government agencies which went on for several years. To the extent that prior improper development activity on the property could be argued as evidence of bad faith, these actions are not attributable to Centervillage but to its predecessor in title.

    
    

33. The agreements reached as a result of good faith negotiations benefitted Centervillage, to the extent that it was allowed to proceed with development of the Property according to its plans.

    
    

34. Based upon the evidence and the testimony at the Final Hearing in this case, Centervillage has established that it acted in good faith in its negotiations and subsequent agreements with the state and local agencies involved.

    
    

35. Reliance on Acts and/or Omissions.

    
    

36. Centervillage has proved that it relied on various acts of government agencies in proceeding as it did with its development plans for the Property. The evidence in this case establishes that Centervillage relied on the environmental permits issued by the State and County before extensive site work was done in June of 1989.

    
    

37. Petitioner relied on the assurances of County environmental officials that the County would cooperate with Centervillage in its plans to develop the Property where appropriate. In exchange for this government cooperation, Centervillage incurred substantial costs and obligations pursuant to its conceptual agreement with the County.

    
    

38. The City contends that Centervillage did not rely on any act or omission of the City. First, the City argues that many of the obligations Centervillage incurred were in mitigation for improper development activity which occurred on the Property prior to Centervillage's ownership. In addition, the City contends that the acts relied on by Centervillage were, for the most part, acts of the County.

    
    

39. The evidence in this case establishes that the efforts of Centervillage in creating wetlands, developing the 7.57 acre stormwater facility, and in reforesting portions of the Centerville canopy road were, at least in substantial part, in mitigation for prior improper development activity on the Property by prior owners. However, the evidence also shows the decisions made with respect to the extent and type of mitigation were the result of give and take negotiations between Centervillage and state and local environmental officials. Centervillage agreed to extensive mitigation in exchange for cooperation it received from state and county officials in its successful efforts to obtain various environmental permits.

    
    

40. The City has cited no authority for the proposition that development activity taken as a result of a negotiated mitigation agreement cannot establish evidence of a change in position in reliance on government's acts and/or omissions. The fact that significant portions of the obligations Centervillage has incurred were in mitigation for prior improper acts is relevant in weighing the evidence of good faith reliance. These facts do not, however, cancel the

    evidence. On balance, Centervillage has proved that it accomplished a costly change in position after achieving the agreement of local government and after receiving a series of permits based upon those agreements.

    
    

41. The agreements reached as a result of long term negotiations between Centervillage and local government benefitted Centervillage, the County, and the City. Centervillage was permitted to proceed with its plans to develop a major shopping center. The County was able to construct an extensive drainage system for the stormwater runoff generated by its road improvement project. The City will receive a large stormwater facility which serves substantially more land area than the Property and will become a major component of the total drainage system for the City of Tallahassee.

    
    

42. The argument put forth by the Respondent that it was the County, not the City, who issued the environmental permits is not persuasive. The evidence establishes that at the time the permits were issued the city had no environmental ordinance. The City relied on County environmental officials in making land use decisions. In practice and effect, the County was acting on behalf of the City in granting local environmental permits. This was the only local government environmental permitting system in existence at the time, and Centervillage was required to deal with that system.

    
    

43. Centervillage also proved that the City was aware of the conceptual agreement it made with the County. The evidence shows that the City was consulted with respect to the plan to have Centervillage obtain necessary land for the large stormwater facility. The City was aware that the conceptual agreement obligated Centervillage to construct what would become a major component of the City's drainage system. The Respondent understood that the stormwater facility and the land would be conveyed to the City and agreed to maintain the system in the future.

    
    

44. The City correctly points out that the evidence fails to show any specific land use commitment on its part during the development of the conceptual agreement. However, the evidence does show that such commitments were made in the agreement. Paragraph 8 of the agreement provides that the County "shall allow Centervillage to develop the southwest corner of Parcel A (fronting on Capital Circle N.E. and Centerville Road) to its fullest commercial potential subject only to existing ordinances, terms and conditions of the limited use site plan, approval of subsequent short-form applications for environmental management permits, and Leon County Environmental Management Permit Number 88-0299. " This paragraph concludes with a provision that portions of the Property will no longer be "protected from development." (App. Ex. G, G-

    8 ). The evidence also shows that the City agreed to accept a substantial benefit pursuant to the agreement. Based on the facts developed at the final hearing in this case, the City cannot, in fairness, simply disavow selective portions of the agreement. See, Killearn Properties, Inc. V. City of Tallahassee, 366 So.2d 172 (Fla. 1st DCA 1979).

    
    

45. It is true that Centervillage has not established that it had received specific density or intensity of use approval from the City. Centervillage received notification from local government authorities that its project was exempt from a separate site plan ordinance. Centervillage correctly argues that the absence of specific approvals such as building permits , under case law in Florida, does not preclude vesting of development rights in property. See, Town of Largo v. Imperial Homes Corporation, 309 So.2d 571 (Fla. 2d DCA 1975).

46. Centervillage has proved that it relied in good faith on a series of environmental permits and on the conceptual agreement in proceeding with its development plan. In addition, Centervillage argues that it relied on the various zoning approvals it obtained from the City.

    
    

47. The City points out that Section IV.1.c of the Ordinance provides: "zoning classification or a rezoning does not guarantee or vest any specific development rights." The City also correctly argues that this provision in the Ordinance is consistent with case law. See Miami Beach v. 8701 Collins Ave., 77 So.2d 428 (Fla. 1955); Pompano Beach v. Yardarm Restaurant, Inc., 509 So.2d 1295 (Fla. 4th DCA 1967); Lauderdale Lakes v. Corn, 427 So.2d 239 (Fla. 4th DCA 1983); and Gainesville v. Cone, 365 So.2d 737 (Fla. 1st DCA 1978).

    
    

48. However, in this case, Centervillage has proved that it did not rely solely on the zoning decisions of the city. Instead, the evidence shows that Centervillage engaged in extensive negotiations with state and local government over a period of several years. The record in this case reflects several agreements with local government leading to numerous permits being issued to Centervillage. The record also reflects that Centervillage acted in reliance on these agreements and permits in proceeding with development of the Property.

    
    

49. Centervillage cites to several Florida cases in support of its argument for common law vesting. One such case is the decision of the Third District Court of Appeal in Board of County Commissioners v. Lutz, 314 So.2d 815 (Fla. 3d DCA 1975). In Lutz, the Petitioners incurred extensive financial obligations and expenses in reliance on rezoning of their property. The Court found that this rezoning was granted after the Petitioners had negotiated, planned, and fulfilled local government requirements in activities lasting over one year. 314 So.2d at 816. In Lutz, the Court applied the doctrine of equitable estoppel to prevent local government from rescinding its prior rezoning decision. Id. The facts in this case are sufficiently similar to Lutz to justify reliance on that decision as persuasive authority in this Final Order.

    
    

50. In City of Lauderdale Lakes v. Corn, 427 So.2d 237 (Fla. 4th DCA 1983), the Court found facts remarkably similar to those present in this

    case. In Corn, the property owner, in reliance on the acts of local government, engaged in extensive site work which resulted in a substantial change to the nature and contour of the land and in a complete alteration of its drainage system. Id., at 241-243. In Based on the facts in Corn, the Fourth District Court of Appeal applied the doctrine of equitable estoppel against the City, thereby vesting development rights in the property against an attempted change in zoning. Id.In May, 1989, Centervillage received Environmental Management Permit #89-0230 from the County. This permit contemplates the addition of 630,000 square feet of impervious surface on the Property. In June, 1989, Centervillage engaged in extensive site work and placed 50,000 to 60,000 cubic yards of fill material on the Property. Centervillage has established that the majority of the current improvements to the Property began within days of the issuance of an environmental permit which was important to future plans to develop a major shopping center. This development activity is also in the same time period in which the conceptual agreements Centervillage began entering into with the County several years before were finalized for formal approval by the Leon County Commission.

    
    

51. Obligations and Expenses Incurred.

52. Centervillage has proved, by a preponderance of the evidence, that it made substantial changes in position in reasonable reliance on acts and/or omissions of the City and, in the process, incurred substantial obligations and expenses.

    
    

53. In May and June of 1989, Centervillage purchased additional adjoining acreage and proceeded to begin construction of the large stormwater facility located on the Property, thereby, incurring substantial expenses in order to meets its obligations under the conceptual agreement negotiated with the County. Pursuant to the conceptual agreement, several acres of Centervillage's property will be conveyed to local government. The evidence shows Centervillage incurred

    $175,000.00 in expense in purchasing additional property in order to construct this stormwater facility.

    
    

54. It is difficult to establish a specific dollar amount in terms of Centervillage's overall development expenses in this case. As the City points out, substantial costs were incurred by the developer in mitigation of prior improper alterations to the property by Centervillage's predecessor in title. However, the record does reflect that Centervillage spent hundreds of thousands of dollars in plans, engineering and site work in reliance on government approvals which permitted continuation of the planned development of the Property.

    
    

55. Centervillage has proved that it has incurred expenses and obligations in proceeding with its development sufficient to establish this element of equitable estoppel. Florida cases relied on by Centervillage in its argument are in accord with this conclusion. See, Bregar v. Britton, 75 So.2d 753 (Fla. 1954), ($28,000 in site preparation sufficient to establish equitable estoppel); Board of County Commissioners of Metropolitan Dade County v. Lutz, supra, ($100,000 sufficient to vest development rights); Town of Longboat Key v. Mezrah, 467 So.2d 488 (Fla. 2d DCA 1985) (permitting and planning expense of

    $40,000 sufficient); and Town of Largo v. Imperial Homes Corporation, supra, ($60,000 in interest, taxes, fees and other development costs sufficient).

    
    

56. There is a common theme throughout the cited cases where the courts have applied the doctrine of equitable estoppel which is not apparent in this case. Typically, these cases involve situations where local government attempts an abrupt change in previously approved or existing zoning after a property owner has relied on such approvals or existing land use regulations. See, Hollywood Beach Hotel Company v. City of Hollywood, 329 So.2d 10 (Fla. 1976), Town of Largo v. Imperial Homes Corporation, supra, and, Board of County Commissioners of Metropolitan Dade County v. Lutz, supra. Precipitous and arbitrary zoning changes, along with unreasonable delaying tactics, prompted the Court, in the previously cited case of Hollywood Beach Hotel Company v. City of Hollywood, to charge the City with "unfair dealing" in applying equitable estoppel to those facts. 329 So.2d at 18. No such facts exist in this case.

    
    

57. Here, the City acted in good faith to comply with the mandate of the state legislature in attempting to develop, adopt, and implement the 2010 Comprehensive Plan. Florida courts have not been hesitant to "... recognize an increasing awareness on the part of local governments of the growth problems which vitally affect many of the communities in Florida." Town of Largo v. Imperial Homes Corporation, supra, 309 So.2d at 574. But the Court in Imperial Homes also recognized that these important efforts to deal with growth should not be accomplished in a such a manner as to mislead parties who "in good faith rely to their detriment upon the acts of their governing bodies." Id.

58. The Petitioner has proved that the action of the Staff Committee, in disapproving the application for vested rights submitted by Centervillage, cannot be sustained by a preponderance of evidence

ORDER

Based upon the Finding of Fact and Conclusions of Law, it is

ORDERED that the denial of Petitioner's Application by the Staff Committee is REVERSED. Centervillage's rights to develop the Property are vested against the 2010 Comprehensive Plan.

DONE AND ENTERED this 27th day of December, 1990, in Tallahassee, Florida.

JAMES W. YORK

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550 904/488-9675

FILED with the Clerk of the Division of Administrative Hearings

this 27th day of December, 1990.

APPENDIX TO THE FINAL ORDER

The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioner, Centervillage Limited Partnership:

1. The proposed findings of fact in paragraphs 1-22, 27-30, and 33-36 of the Petitioners Proposed Final Order are adopted in material part by the Final Order.

   
   

2. The proposed findings of fact in paragraphs 24, 26 and 31-32 of the Proposed Final Order are rejected as cumulative and not necessary to the conclusions reached.

   
   

3. The Proposed finding of fact contained in paragraph 37 is rejected in that this proposed finding is not supported by the evidence. The exhibit referred to (Appellant's Exhibit 4) relates to property in which the application for vested rights has been approved.

   
   

4. In this lengthy proposed finding of fact, Petitioner relies on ten files containing previously approved applications for vested rights filed by other property owners. This composite exhibit (Appellant's Exhibit 6) was accepted over the objection of the Respondent. To the extent that the composite exhibit could be helpful to support Petitioners contention that the Respondent's action in disapproving Petitioners application is unreasonable (in comparison to the prior approvals for others), the applications contained in the exhibit are relevant. However, the issue of common law vesting must be determined on the basis of specific facts developed in individuals cases. On the strength of the

applications submitted here, without additional development of facts, this composite exhibit does not have sufficient weight to warrant findings of fact in this Final Order.

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 1-16, 19, 22-28, 31, 34-36, and 38-41 of the Respondent's Proposed Final Order are adopted in material part by the Final Order.

   
   

2. The proposed finding of fact in paragraph 20 is adopted so far as the finding relates to any "substantial" costs.

   
   

3. The proposed findings of fact in paragraphs 17 and 21 are rejected in that these proposed findings are not supported by the evidence.

   
   

4. The proposed findings of fact in paragraphs 18, 29-30, 32-33, and 37 are rejected as cumulative and not necessary to the conclusions reached.

Copies furnished:

Russell D. Gautier, Esquire

306 East College Avenue Tallahassee, Florida 32301

Patrick E. Hurley, Esquire John H. Sytsma, Esquire

HENRY, BUCHANAN, MICK & ENGLISH, P.A.

117 South Gadsden Street Post Office Drawer 1049 Tallahassee, Florida 32302

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 Petitioner and Respondent and shall be by common-law certiorari to the Circuit Court of the Second Judicial Circuit.

Docket for Case No: 90-006431VR

Orders for Case No: 90-006431VR