STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

COUNCIL PROPERTIES, )

)

Petitioner, )

)

vs. ) CASE NO. 92-0166VR

)

CITY OF TALLAHASSEE, )

)

Respondent. )

)

FINAL ORDER

This case came before James W. York, duly assigned Hearing Officer of the Division of Administrative Hearings pursuant to Section 120.65(9), Florida Statutes (1991), the City of Tallahassee Ordinance No. 90-O-0043AA, adopted July 16, 1990 (the Ordinance); and a contract between the Division of Administrative Hearings and the City of Tallahassee to provide Hearing Officer appeals in accordance with the Ordinance.

STATEMENT OF THE ISSUE

Whether Council Properties (Petitioner) has demonstrated 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 dated November 3, 1990, was filed with the Tallahassee-Leon County Planning Department on behalf of the Petitioner. The Application for Vested Rights Determination (the Application) was reviewed by the Respondent City of Tallahassee (the City) and was preliminarily denied. Notice of preliminary denial was provided to Petitioner by letter dated June 27, 1991. The application was reviewed by the Staff Committee for the City and was denied. Notice of the Staff Committee denial was provided to Petitioner by letter dated September 16, 1991. On January 9, 1992, the City referred the matter to the Division of Administrative Hearings for assignment of a Hearing Officer.

Pursuant to Notice, a hearing was held on March 20, 1992. At the commencement of the hearing, conducted in accordance with the Ordinance, exhibits filed with the City and transmitted to the Division of Administrative Hearings with the request for assignment of a Hearing Officer were accepted into evidence along with two additional exhibits offered by Petitioner. During the hearing, Petitioner presented the testimony of Kathy Shirah, Martin Page, Elmina Palmer and Don Wesolowski. The City presented no witnesses or additional exhibits.

The parties were informed that they could file Proposed Final Orders before this Order was issued. Based upon the agreement of the parties, Proposed Final Orders were filed on May 29, 1992. Since the Proposed Final Orders were filed more than ten days after the date of the hearing, the parties waived the requirement that an Order be issued within thirty days after the hearing. See,

Rule 22I-6.031, Florida Administrative Code. Rulings on Proposed Findings of Fact submitted by the parties are contained in the Appendix to this Final Order.

FINDINGS OF FACT

The Property

1. The property at issue in this proceeding (the property) is located at South Monroe Street and Orange Avenue in the City of Tallahassee.

   
   

2. The property has been owned by the Council family since about 1904. Petitioner Council Properties is made up of family members who inherited the property in the 1950s.

   
   

3. The entire Council tract has been zoned for general commercial development (C-2) since Petitioner acquired title to the property.

   
   

   Development Activity

   
   

4. Between 1985 and 1990, two parcels originally contained within the tract inherited by Petitioner were sold for the development of two separate fast food restaurants. Both restaurants have been constructed and are occupied.

   
   

5. The construction of the two fast food restaurants are the only developments that have taken place on the overall Council site.

   
   

   Petitioner's Development Plans

   
   

6. Petitioner had preliminary plans prepared for developing a retail shopping center on the property in 1983.

   
   

7. In pursuing the 1983 preliminary plans, Petitioner encountered difficulties with the City's perception of problems with the property based upon, among other things, the 100 year flood plain and sanitary sewer construction.

   
   

8. In 1985, permitting was secured for the construction of a McDonald's restaurant on a portion of the property. In order to secure permitting for the construction of McDonald's, Petitioner designed a master sewer plan. Petitioner had the sewer plan designed to facilitate the development of the entire Council tract.

   
   

9. In 1988, Petitioner engaged Page and Associates, Inc. (consulting engineers) to design a site plan for a retail shopping center on the property. This site plan was completed in 1989 and provided for a retail shopping center of about 130,000 gross square feet as well as stormwater management areas, and parking.

   
   

   The Pre-Development Conference

   
   

10. In January 1990, Petitioner hired Broward Davis and Associates (consulting engineers) to assist in obtaining necessary approvals and permits in order to develop the retail shopping center on the property.

    
    

11. Kathy Shirah, a representative of Broward Davis and Associates, indicated that she believed there were potential problems with the development

    as proposed regarding environmental constraints associated with the 100-year flood plain, severe grades on the property and the forestation of the proposed development site.

    
    

12. As a result of Ms. Shirah's concern, a pre-development conference was scheduled attended by Ms. Shirah, the Petitioner's agent, Don Wesolowski, the Leon County-Tallahassee Planning Department's Chief of Environmental Permitting, Helge Swanson and Mr. Swanson's assistant, Karen Kebart.

    
    

13. The pre-development conference occurred on January 25, 1990 (prior to the adoption of the 2010 Comprehensive Plan by the City).

    
    

14. At the pre-development conference Mr. Swanson expressed that he would recommend against approval of permitting for the development of the shopping center on the site as planned. Mr. Swanson's objections concerned elevation (below flood plain), severe grades and native forestations on the property. Mitigation and alternative plans were discussed. Mr. Swanson indicated he would be inclined to view alternative plans for development more positively, but the alternative discussed was not acceptable to the Petitioner due to their concerns regarding market feasibility.

    
    

15. Based upon Mr. Swanson's comments at the pre-development conference, Ms. Shirah recommended against the pursuit of permitting for the shopping center as planned by the Petitioner.

    
    

16. Based upon the tone and substance of the pre-development conference and Ms. Shirah's recommendation, Petitioner made a business decision not to actively pursue the shopping center development plan. Petitioner's decision was based upon the belief that the expense involved in attempting to obtain permits over the objection of City staff was not justified based upon their assessment of the likelihood of success.

    
    

17. After the pre-development conference, Mr. Wesolowski made several contacts with Mr. Swanson and/or Ms. Kebart attempting to induce Mr. Swanson to put his negative feelings toward the planned development in writing. These efforts were unsuccessful. Mr. Wesolowski also attempted to arrange a tour of the site with Mr. Swanson's assistant in an attempt to convince City staff of the merits of the proposed development. This site visit was accomplished in April 1990, but Mr. Wesolowski was unable to persuade the City staff to indicate support for the proposal.

    
    

18. Subsequent to the pre-development conference, Petitioner, on the advice of Martin Page (consulting engineer), decided to pursue the development of an out parcel that was ultimately sold to Taco Bell and is now developed.

    The specific parcel (the Taco Bell site) was selected by Petitioner because the parcel is flat and not forrested, thus the environmental problems raised by City staff regarding the overall tract were not apparent on this portion of the property.

    
    

19. The proposed shopping center plan was never submitted to local government for review and approval.

    
    

20. The 2010 Comprehensive Plan was adopted by the City and submitted to the Florida Department of Community Affairs in February 1990 and was in effect in June 1990.

    The Testimony of Petitioner's Expert Witness

    
    

21. At the March 20, 1992 final hearing, Petitioner presented the expert testimony of consulting engineer Martin Page.

    
    

22. Mr. Page testified that, due to changes in sewer systems and drainage patterns in the area of the property, substantially less portions of the property were within the 100-year flood plain at the time of the pre-development conference than the City staff claimed.

    
    

23. Mr. Page further testified that, in his opinion, the shopping center could have been permitted as planned by Petitioner, according to standards existing prior to the adoption of the 2010 Comprehensive Plan.

    
    

24. Mr. Page holds this opinion notwithstanding allegations that the Property was flood prone or the existing grades on the property were too severe to permit the development Petitioner proposed.

    
    

25. Mr. Page's opinions regarding the grades, elevations and flood prone nature of the property at issue are accepted.

    
    

26. Mr. Page does not recall whether his opinions regarding the flood prone aspects of the site or the elevations on the property were ever discussed with the City staff.

    
    

27. Based upon Mr. Page's testimony, Petitioner has established that there is an apparent difference of opinion between Mr. Page and City staff regarding environmental constraints effecting the development of the property.

    
    

    Petitioner's Claimed Expenses

    
    

28. On the Application for Vested Rights Determination, filed with the City on or about November 13, 1990, Petitioner claims expenses in excess of

    $60,000.00 associated with planning, permitting and site preparation towards completion of development of the property.

    
    

29. Since owning the property, Petitioner has paid property taxes estimated at $20,000 to $25,000 per year.

    
    

30. Petitioner has failed to prove that the claimed expenses were incurred as a result of an act or omission of the City upon which Petitioner relied to its detriment.

    
    

    Petitioner's Change in Position

    
    

31. Petitioner's decision not to pursue its shopping center development plans prior to the City's adoption of the 2010 Comprehensive Plan was a business decision made after consideration of the recommendation of consulting engineers hired by Petitioner. Petitioner has not proved that its failure to submit its shopping center development plan for review or to apply for permits in furtherance of the plan was attributable to any act or omission on the part of the City.

    CONCLUSIONS OF LAW

    
    

    Jurisdiction

    
    

32. 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.

    
    

    The Ordinance

    
    

33. 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 (hereinafter referred to as the "2010 Comprehensive Plan"), which was submitted to the Department of Community Affairs for review on February 1, 1990.

    
    

34. 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 provisions of the 2010 Comprehensive Plan.

    
    

    (Section I of the Ordinance.)

    
    

35. Pursuant to the Ordinance, any Tallahassee property owner 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.

    
    

36. 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 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.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.

    
    

37. 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, nontechnical sense, which is merely an application to a higher authority for a review of the Staff Committee action taken.

    
    

38. 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.

    
    

39. 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.

       
       

       . . . .

       
       

40. 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."

    
    

41. In this matter the Petitioner has only argued in its Proposed Findings of Fact and Conclusions of Law that its development rights in the Property have vested pursuant to the common law vesting definition of the Ordinance. The Petitioner has not argued, nor did the evidence prove, that the Property meets the definition of "statutory vesting."

    
    

42. "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.1.a of the Ordinance.

    
    

    The Petitioner's Application

    
    

43. 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).

    
    

    Petitioner's Reliance on Statements of City Staff

    
    

44. Petitioner argues that it has established that it reasonably relied on comments made by the City's environmental permitting staff in failing to pursue its plans to develop a shopping center on the property. Further, Petitioner contends that the record in this case establishes that the environmental concerns of staff could have been remedied and that the project could have been completed within environmental constraints. Petitioner argues that it relied on the negative reaction of City staff and temporarily changed position, i.e., decided to pursue development of an out parcel. Further, Petitioner maintains that this temporary change of position based upon good faith reliance on the

    city's erroneous position caused the property owners to incur substantial obligations and expenses occasioned by the adoption of the 2010 Comprehensive Plan. Apparently, Petitioner's position is that, but for the attitude of City staff, the shopping center permitting would have proceeded and the project would have been moving to completion prior to the adoption of the Comprehensive Plan, thus Petitioner could have developed the property under prior C-2 zoning and without the added expenses that concurrency would place upon them.

    
    

45. The first problem with Petitioner's argument is that it has failed to meet its burden to prove that the shopping center project could have been permitted prior to adoption of the 2010 Comprehensive Plan "but for" the statements of City staff at the pre-development conference. Petitioner never applied for permitting and did not officially challenge statements it argues were erroneous until well after the Comprehensive Plan was in effect. The expert testimony of Petitioner's consulting engineer notwithstanding, the plan prepared by this witness, well in advance of the pre-development conference, was never submitted for review by the City.

    
    

46. Petitioner's position that its shopping center development would have been advanced to the extent that it would have been entitled to vesting (or been complete) prior to the adoption of the Comprehensive Plan "but for" the alleged acts or omissions of City staff is speculative at best. In support of its argument, Petitioner cites the opinion of the Florida Supreme Court in the 1957 case of Jarrard v. Associates Discount Corporation, 99 So.2d 272 (Fla. 1957). While easily distinguishable from the facts present in this case, Jarrard does contain a succinct general statement regarding the burden of proof in estoppel cases which is pertinent here:

    
    

    The burden of proving all the facts essential to the working of an estoppel rests on the party asserting it or on whose behalf it is applied. Before an estoppel can be raised there must be certainty and the facts necessary to constitute it cannot be taken by argument or inference, nor supplied by intendment. They must be clearly and satisfactorily proved. 99 So.2d 272, 277 (citations omitted).

    
    

47. In this case, Petitioner has failed to prove that statements of City staff during unofficial pre-development conferences were acts or omissions upon which Petitioner reasonably relied in changing position to its detriment.

    
    

48. Petitioner also cites the case of Miami Gardens, Inc. v. Conway, 102 So.2d 622 (Fla. 1958), in support of its argument for the application of common law estoppel in this case. Petitioner's reliance of Miami Gardens is misplaced. In fact, the Florida Supreme Court in Miami Gardens pointed out yet another element of estoppel which is problematic in this case. Most of the expenses Petitioner argues it made in furtherance of its shopping center plans occurred before the pre-development conference relied upon in this case (i.e., costs associated with planning the shopping center, and for permitting and infrastructure associated with the out parcels already developed.)

    
    

49. The Miami Gardens case points out that an essential element of equitable estoppel is proof that reliance upon an alleged act or omission caused the injury complained of. Id. at 626. In Miami Gardens, the Court declined to apply estoppel where the injury complained of occurred long after the act or

    omission in question. Id. In this case, the bulk of expenses claimed by Petitioner were made before the pre-development conference and Petitioner has also been unable to establish that the alleged acts or omission of the City were the cause of its expenses.

    
    

50. The application of equitable estoppel typically occurs where a property owner proves that the act or omission complained of constitute a fair representation that permissible uses will not change, thus inducing the property owner to act. Petitioner has offered no such proof in this case.

    
    

51. Based upon the foregoing, it is concluded that the Petitioner has failed to prove that the action of the Staff Committee, in denying its application for Vested Rights determination, cannot be sustained by a preponderance of the evidence or that the action of the committee departs from the essential requirements of law.

ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that the denial of Petitioner's Application for Vested Rights

Determination is affirmed.

DONE and ENTERED this 22 day of July, 1992, 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 22 day of July, 1992.

APPENDIX TO FINAL ORDER CASE NO. 92-0166VR

Rulings on Petitioner's Proposed Findings of Fact

1-2. Petitioner's Proposed Findings of Fact 1 and 2 are adopted in Findings of Fact 2 and 3 of this Final Order.

3-4. Petitioner's Proposed Findings of Fact 3 and 4 are adopted, in material part, in Findings of Fact 6 and 7 of this Final Order.

1. Petitioner's Proposed Finding of Fact 5 is not supported by the evidence. At best, Petitioner's proof established a difference in opinion among experts and City staff regarding the elevations of the property vis a vis the 100-year flood plain.

   
   

2. Petitioner's Proposed Finding of Fact 6 is adopted only to the extent that permitting for construction of the McDonald's restaurant was secured. The remainder of this Proposed Finding of Fact is rejected as conclusory and not supported by the evidence.

3. Petitioner's Proposed Finding of Fact 7 is adopted, in material part, in Finding of Fact 8 of this Final Order.

   
   

4. Petitioner's Proposed Finding of Fact 8 is adopted, in material part, in Finding of Fact 9 of this Final Order.

9-10. Petitioner's Proposed Findings of Fact 9 and 10 are hereby adopted.

11-12. Petitioner's Proposed Findings of Fact 11 and 12 are adopted, in material part, in Findings of Fact 11-13 of this Final Order.

13-14. Petitioner's Proposed Findings of Fact 13 and 14 are adopted, in material part, in Finding of Fact 14 of this Final Order.

15-16. Petitioner's Proposed Findings of Fact 15 and 16 are adopted in part. Petitioner's proof as to the statements allegedly made by Mr. Swanson regarding Petitioner's "wasting their money" was that Mr. Wesolowski interpreted Mr.

Swanson's comments to essentially mean that Petitioner would be wasting money. (T-2, p. 69)

17-18. Petitioner's Proposed Findings of Fact 17 and 18 are accepted except for Petitioner's assertion that the owner's reliance was reasonable. The extent of Petitioner's "reasonable reliance" is discussed in the Conclusions of Law in this Final Order.

1. Petitioner's Proposed Finding of Fact 19 is adopted only to the extent that Petitioner's failure to pursue development plans to the extent of submitting plans to the City for formal review does operate to Petitioner's detriment in its efforts to establish vested rights to develop the property.

   
   

2. Petitioner's Proposed Finding of Fact 20 is rejected as not supported by the evidence.

21-22. Petitioner's Proposed Findings of Fact 21 and 22 are not relevant and are subordinate to the conclusions reached.

1. Petitioner's Proposed Finding of Fact 23 is not supported by the record and is rejected.

   
   

2. Petitioner's Proposed Finding of Fact 24 is accepted only to the extent that Petitioner's expert's opinion is accepted. Petitioner has, by such testimony, only proven that there is an apparent disagreement between its expert and the City staff.

Rulings on Respondent's Proposed Findings of Fact

1-3. Respondent's Proposed Findings of Fact 1-3 are adopted in Findings of Fact 1-5 of this Final Order.

1. Respondent's Proposed Finding of Fact 4 is adopted, in substance, in Findings of Fact 12 and 13 of this Final Order.

   
   

2. Respondent's Proposed Finding of Fact 5 is adopted in Finding of Fact

29 of this Final Order.

6-11. Respondent's Proposed Findings of Fact 6-11 are hereby adopted.

COPIES FURNISHED:

Council Properties c/o Don A. Wesolowski

American Real Estate Agency

246 East 6th Avenue, Suite 104 Tallahassee, Florida 32303

Wendy Grey

Acting Director of Planning Tallahassee-Leon County

Planning Department

300 South Adams Street Tallahassee, Florida 32301

John H. Sytsma, Esquire

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

Post Office Drawer 1049 Tallahassee, Florida 32302

Robert B. Inzer

City Treasurer-Clerk

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: 92-000166VR

Orders for Case No: 92-000166VR