STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PEOPLE'S FIRST FINANCIAL ) SAVINGS AND LOAN ASSOCIATION, )

)

Appellant, )

)

vs. ) CASE NO. 91-4107VR

)

CITY OF TALLAHASSEE, )

)

Appellee. )

)

FINAL ORDER

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

APPEARANCES

For Appellant: Charles A. Francis, Esquire

Francis & Sweet

Post Office Box 10551 Tallahassee, Florida 32302

For Appellee: John H. Sytsma, Esquire

Assistant City Attorney

117 South Gadsden Street Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

Whether the Appellant, People's First Financial Savings and Loan Association, 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 November 8, 1990, was filed with the Tallahassee-Leon County Planning Department by the Appellant, People's First Financial Savings and Loan Association. The Application for Vested Rights Determination was ultimately reviewed by the Appellee, the City of Tallahassee (hereinafter referred to as the "City"), and, following a hearing before the Tallahassee-Leon County Vested Rights Determination Staff Committee meeting held on March 18, 1991, was denied. The denial was appealed by the Appellant. On or about July 3, 1991, the City referred the matter to the Division of Administrative Hearings for assignment of a Hearing Officer.

A Notice of Assignment and Initial Order was issued by the undersigned on July 9, 1991. The parties were informed that they were being given an opportunity to inform the undersigned whether they wished to supplement the record with additional documentary evidence and testimony. On July 22, 1991,

the parties filed a Joint Notice that No Additional Evidence will be Submitted. In this Notice the parties indicated that they did not wish to present additional evidence in this case.

On July 24, 1991, an Order Concerning Proposed Final Orders was issued. The parties were informed that the Final Order in this case would be issued within thirty days of the date of the Order. The parties were informed that they could file proposed final orders within ten days of the Order. Neither party has filed a proposed final order.

The transcript of the hearing before the Staff Committee on March 18, 1991, exhibits presented at the Staff Committee meeting and exhibits filed with the Application which were provided with the original request for the assignment of a Hearing Officer have been accepted into evidence and formed the basis for this Final Order.

FINDINGS OF FACT

1. The Property at Issue.

   
   

   1. In early 1988, the Appellant decided to establish a full-service savings and loan branch site in Tallahassee, Florida. Therefore, the Appellant began looking for a parcel of real estate to purchase where the branch could be constructed.

      
      

   2. On May 11, 1989, after an extensive search, the Appellant entered into a Contract for Sale and Purchase (hereinafter referred to as the "Contract"), with Southwest Georgia Oil Company, Inc. Pursuant to the Contract, the Appellant agreed to purchase approximately 1.43 acres of property (hereinafter referred to as the "Property").

      
      

   3. The Property is located at the corner of Thomasville Road and Tallahassee Drive (identified as Tallahassee Road on Exhibit C, the General Location Map), Tallahassee, Florida.

      
      

   4. The following "Special Clauses" were included in the Contract:

      
      

      1. BUYER SHALL HAVE 45 DAYS FROM THE DATE OF THE EXECUTION OF THIS CONTRACT TO INVESTIGATE FEASIBILITY OF THIS PROPERTY FOR HIS PURPOSES. BUYER SHALL NOTIFY SELLER IN WRITING PRIOR TO THE EXPIRATION OF THIS 45 DAY PERIOD IN THE EVENT BUYER DECIDES NOT TO PURCHASE, AT WHICH TIME THE BINDER SHALL BE RETURNED AND THIS CONTRACT SHALL BE VOID.

         IF BUYER FAILS TO TIMELY NOTIFY SELLER OF HIS REJECTION OF THE CONTRACT, THE BINDER SHALL THEN BECOME "AT RISK" BUT SHALL BE CREDITED TOWARD THE PURCHASE PRICE AT CLOSING.

         . . . .

         (C) BUYER MAY EXTEND THE CLOSING FOR TWO ADDITIONAL 30 DAY PERIODS BEYOND THE 60 DAYS CALLED FOR IN THIS AGREEMENT. . . .

         
         

   5. At the time the Contract was entered into, the Property was zoned C-1. Under C-1 zoning, commercial development, such as that proposed by the Appellant, was acceptable development of the Property.

   6. Prior to purchasing the Property, the Appellant sought, and received, assurances from the City that the Property was zoned for commercial development such as that planned by the Appellant and that water, sewer and electrical services would be available to the Property.

      
      

   7. On or about April 23, 1990, the Appellant purchased the Property.

      
      

2. Development of the Property.

   
   

   1. The building the Appellant intended to construct on the Property was a prototype branch savings and loan office with approximately 5,500 square feet.

      
      

   2. On approximately May 16, 1989, after entering into the Contract, but prior to purchasing the Property, the Appellant met with the City's Traffic Coordinator and Development Coordinator. It was suggested by these City officials that access to the Property be provided from Thomasville Road. The Appellant agreed that access from Thomasville Road was needed.

      
      

   3. The weight of the evidence failed to prove that the Appellant's decision to insure that it had access to the Property from Thomasville Road was required by the City.

      
      

   4. The Appellant determined at some point that it would be necessary to obtain an easement across property of the Florida Department of Natural Resources in order to have access from the Property to Thomasville Road. Consequently, the Appellant began meeting with the Florida Department of Transportation and the Florida Department of Natural Resources to obtain approval of the easement and the road access.

      
      

   5. The remainder of 1989 and the first part of 1990, was primarily devoted to meeting with the Florida Department of Natural Resources to obtain the necessary easement.

      
      

   6. The Appellant engaged the services of Gary Allen Registered Land Surveyor, Inc., on approximately May 18, 1989. A Topographic Survey was performed on the Property on May 25, 1989, and was issued in August, 1989.

      
      

   7. On August 9, 1989, a preliminary site plan was issued by Capital Engineering Consultants, Inc. This site plan is Exhibit D to the Application. Other site plans were prepared in 1990, but not provided to the undersigned.

      
      

   8. The Appellant obtained approval from the Comptroller of the State of Florida for the proposed savings and loan branch office in June, 1989.

      
      

   9. The Appellant finally reached agreement with the Florida Department of Natural Resources during the first half of 1990. The Florida Cabinet was required to approve the agreement. The Florida Cabinet was scheduled to review the agreement in June, 1990.

      
      

   10. The Mayor of the City sent a letter dated June 19, 1990, to the Florida Cabinet indicating that the Property would be subject to the 2010 Comprehensive Plan and requesting the Cabinet to delay its decision. The Cabinet agreed and no action to approve or disapprove the agreement has been made.

   11. The Appellant has not obtained a storm water permit, a building permit or site plan review or approval for the Property or any other permits required to develop the Property.

       
       

3. The 2010 Comprehensive Plan.

   
   

   1. The 2010 Comprehensive Plan was being developed by the City during late 1989. On February 2, 1990, the 2010 Comprehensive Plan contained a Lake Protection category.

      
      

   2. The 2010 Comprehensive Plan was being considered and included the Property in a Lake Protection category before the Appellant purchased the Property.

      
      

   3. The Appellant was aware of the 2010 Comprehensive Plan before it purchased the Property.

      
      

   4. The weight of the evidence failed to prove that the City had any duty or responsibility to inform the Appellant of the 2010 Comprehensive Plan. The weight of the evidence also failed to prove that the Appellant asks the City about the possible application of the 2010 Comprehensive Plan to the Property prior to the purchase of the Property by the Appellant.

      
      

4. Governmental Actions Relied Upon by the Appellant.

   
   

   1. The Appellant indicated at Exhibit 9 that it relied upon the following City approvals and actions:

      
      

      1. 3/89 Conformation of commercial

      zoning to allow construction of branch bank site.

      . . . .

      5. 5/16/89 Assurances from Danny Brown

      (Tallahassee Development Coordinator) and Debbie Danton (Traffic Coordinator) that utilities and necessary services were available to the site and project was "approvable," and that access to Tallahassee Drive was no problem.

      . . . .

      9. 1/15/90 Assurances at pre-

      application meeting with Lamar Clemons, Debbie Danton, Bobby Posey and Dave Prite of City staff that there were no inherent problems with the proposed site.

      
      

   2. The approvals and actions of the City listed by the Appellant in Exhibit 9 all occurred before the Appellant purchased the Property.

   3. The other governmental approvals and actions listed by the Appellant in its Exhibit 9 were actions of State agencies and not the City.

      
      

   4. The weight of the evidence failed to prove that any reliance by the Appellant on any act or omission of the City was reasonable in light of the Appellant's knowledge about the existence of the 2010 Comprehensive Plan and the Appellant's failure to determine how the 2010 Comprehensive Plan would apply to the Property prior to its purchase of the Property.

      
      

5. Change in Position or Obligations and Expenses Incurred by the Appellant.

   
   

   1. The Contract provided for a purchase price for the Property of

      $365,000.00.

      
      

   2. The purchase price of the Property was reduced prior to the purchase of the Property by approximately $50,000.00.

      
      

   3. In the Application it was indicated that the total expenditures related to the Property at the time the Application was filed amounted to

      $336,351.50.

      
      

   4. In the Appellant's Exhibit 6, it is indicated that the total expenditures amounted to $335,351.50.

      
      

   5. The Appellant provided information in Exhibit 8 concerning some of the expenditures. In a memorandum dated October 22, 1990, it is indicated

      $318,093.35 was expended with Crossland Realty, Gary Allen, Registered Land Surveyor, Collins & Associates, Associated Land Title Group, Inc., and Gardner, Shelfer & Duggar, P.A. Exactly what the expenditures were for and when they were incurred is not indicated. Apparently, however, based upon notations on the memorandum, most, if not all, of the amounts on the memorandum are attributable to the purchase of the Property. Some part of the $11,344.25 paid to Gary Allen and Collins & Associates may have been attributable to the development of the property.

      
      

   6. Exhibit 8 also includes a letter from Bayne Collins of Collins & Associates dated June 4, 1990. It appears that the amounts included on this letter are included in the October 22, 1990, memorandum.

      
      

   7. Exhibit 8 also includes a bill for legal services. It is not indicated the exact nature of the legal services provided.

      
      

   8. The weight of the evidence failed to prove that the Appellant incurred any cost or obligation or altered its position in reasonable reliance on any action or omission of the City other than the City's representation that the Property was zoned C-1 and utilities were available.

      
      

   9. The weight of the evidence failed to prove what costs or obligations the Appellant incurred, or what alterations in position the Appellant made, prior to becoming aware of the 2010 Comprehensive Plan and in reliance on any act or omission of the City.

      
      

6. Development of the Property under the 2010 Plan.

   
   

   1. Under the 2010 Comprehensive Plan, the Property is located in an area designated as "lake protection." The Property cannot be put to commercial use.

   2. The Property can probably only be developed as a single residential site.

      
      

7. Procedure.

1. On or about November 8, 1990, the Appellant filed an Application for Vested Rights Determination (hereinafter referred to as the "Application"), with the City.

   
   

2. On March 18, 1991, a hearing was held to consider the Application before the Tallahassee-Leon County Vested Right Determination Staff Committee. The Staff Committee denied the Application.

   
   

3. By letter dated July 3, 1991, the Division of Administrative Hearings was requested to provide a Hearing Officer to review this matter.

   
   

4. By agreement of the parties, the record in this matter was not supplemented.

   
   

   CONCLUSIONS OF LAW

   
   

   1. Jurisdiction.

      
      

5. 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 (hereinafter referred to as the "Ordinance").

   
   

   1. The Ordinance.

      
      

6. 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 the City. In compliance with Section 163.3167, Florida Statutes, the City adopted a comprehensive plan (hereinafter referred to as the "2010 Comprehensive Plan), which was submitted to the Department of Community Affairs for review.

   
   

7. The City adopted the Ordinance to insure that existing rights to develop property of City 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 IA of the Ordinance.

   
   

8. Pursuant to the Ordinance any City 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.

   
   

9. 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.3.a. 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 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.

   
   

10. 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.

    
    

11. If a hearing before the Staff Committee is waived or if the decision of the Staff Committee is adverse to the applicant, Section III.3.e. of the Ordinance provides for an appeal to a Hearing Officer. The nature of such an appeal is set out in Section III.3.e.1 of the Ordinance:

    
    

    This "appeal" is not intended to mean an appeal in the traditional sense, that is, only a review of the Staff Committee record of their hearing. The Hearing Officer "appeal" shall be construed in its broadest, 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.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.

    
    

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

13. 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 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 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 the appeal hearing and a copy shall be provided to the City Clerk and the applicant.

    . . . .

    
    

14. Section IV of the Ordinance governs the determination of whether an applicant's development rights in property have vested. Section IV of the Ordinance provides two situations where develop rights will be considered vested: "common law vesting" and "statutory vesting."

    
    

15. In this matter the Appellant indicated during the hearing before the Staff Committee that the development of the Property in this case does not meet the definition of statutory vesting. The evidence also failed to prove that statutory vesting is applicable to this matter. The Appellant has argued that development rights in the Property 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 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.

    
    

    1. The Appellant's Application.

    
    

16. 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). Case law applying common law vesting may be relied upon for guidance in determining whether the development of the Property in this case is subject to common law vesting under the Ordinance. See Section III of the Ordinance.

    
    

17. The Appellant has failed to prove that common law vesting, as defined in the Ordinance, exist in this case:

1. Good Faith Reliance.

55. Without suggesting that the Appellant acted in bad faith, it is concluded that the Appellant failed to prove that it acted in good faith reliance upon any act or omission of the City in light of its knowledge about the 2010 Comprehensive Plan prior to its purchase of the Property.

2. Acts or Omissions of the City Relied Upon.

1. The actions of the City that the Appellant has suggested were relied on include the following:

   
   

   1. The C-1, commercial, zoning of the Property;

      
      

   2. Representations from City personnel that utilities were available to the Property;

      
      

   3. Negotiations and discussions with State agencies and other entities concerning access to the Property from Thomasville Road; and

      
      

   4. The failure of the City to inform the Appellant that it would not be able to develope the Property for its intended use under the 2010 Comprehensive Plan.

2. Reliance upon zoning alone is insufficient as a matter of law to conclude that common law vesting applies. Section IV.1.d. of the Ordinance provides that "[a] zoning classification or a rezoning does not guarantee or vest any specific development rights." This provision 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).

   
   

3. The assurance concerning the availability of necessary services (water, electric and sewer) to the Property does not constitute a representation that the Property may be developed in a certain manner.

   
   

4. The Appellant's negotiations with the Florida Department of Transportation and the Department of Natural Resources cannot be relied upon as a representation of the City. The Ordinance specifically requires that the act or omission relied on be an act or omission of the City, not just any governmental entity.

   
   

5. Finally, the weight of the evidence proved that the Property in this case was not purchased until after discussions concerning the 2010 Comprehensive Plan had begun and the 2010 Comprehensive Plan indicating that the Property was in a Lake Protection category had been submitted. The Appellant was aware of the 2010 Comprehensive Plan before it purchased the Property. Therefore, the Appellant should have taken steps to insure that it could develop the Property before closing its purchase. Because the Appellant failed to take such steps even though it was aware of the 2010 Comprehensive Plan, it cannot be concluded that the Appellant relied upon the failure of the City to inform it of the 2010 Comprehensive Plan in good faith.

   
   

6. The evidence also failed to prove that the City was under any obligation to inform the Appellant of the provisions of the 2010 Comprehensive Plan.

3. The Appellant's Expenditures and Changes in Position.

1. The changes in position or obligations and expenses that the Appellant has argued it incurred in reliance upon the City's actions include the purchase price for the Property, some engineering and architectural fees and legal fees. The weight of the evidence failed to prove that these expenses were incurred in reliance upon any act or omission of the City.

   
   

2. The Appellant also failed to prove that any substantial expenses were incurred by it in reliance upon any act or omission of the City prior to its awareness of the pending adoption of the 2010 Comprehensive Plan. Most of the expenses it incurred were incurred after it learned of the 2010 Comprehensive Plan and cannot be said to have been incurred in any good faith reliance upon any act or omission of the City.

   
   

3. Based upon the foregoing and a review of the record and testimony presented at the hearing before the Staff Committee it is concluded that the Appellant has failed to prove that the Staff Committee's conclusion that the Appellant did not prove that the elements of common law vesting apply to the Property 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.

ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that the denial of Peoples First Financial Savings and Loan

Association's Application by the Staff Committee is AFFIRMED.

DONE and ENTERED this 23rd day of August, 1991, in Tallahassee, Florida.

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 23rd day of August, 1991.

COPIES FURNISHED:

Charles A. Francis, Esquire Francis & Sweet

Post Office Box 10551 Tallahassee, Florida 32302

John H. Sytsma, Esquire Assistant City Attorney

117 South Gadsden Street 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 City of Tallahassee and shall be by common-law certiorari to the Circuit Court of the Second Judicial Circuit.

Docket for Case No: 91-004107VR

Orders for Case No: 91-004107VR