STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GOLDEN/JACKSONVILLE CO., )

)

Petitioner, )

)

vs. ) CASE NO. 92-6947VR

)

CLAY COUNTY, )

)

Respondent. )

)

FINAL ORDER

Pursuant to written notice a formal hearing was held in this case before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on January 14, 1993, in Green Cove Springs, Florida.

APPEARANCES

For Petitioner: W. O. Birchfield, Esquire

Lynda R. Aycock, Esquire Martin, Ade, Birchfield &

Mickler, P.A.

3000 Independent Square

Jacksonville, Florida 32202

For Respondent: Mark Scruby

Clay County Attorney Post Office Box 1366

Green Cove Springs, Florida 32043 STATEMENT OF THE ISSUE

Whether the Petitioner, Golden/Jacksonville Co., has demonstrated, pursuant to the Vested Rights Review Process of Clay County, Florida, that it has a vested right to undertake development of certain real property located in Clay County notwithstanding the fact that the development will not be in accordance with the requirements of the Clay County 2001 Comprehensive Plan?

PRELIMINARY STATEMENT

On or about November 16, 1992, an Application for Vested Property Certification for Claims of Equitable Vested Rights Pursuant to Future Land Use Policy 1.8, Clay County 1991-2001 Comprehensive Plan, (hereinafter referred to as the "Application"), was filed by W. O. Birchfield and Lynda R. Aycock, on behalf of Golden/Jacksonville Co. (hereinafter referred to as the "Applicant"), with the Clay County Department of Planning and Zoning. The Applicant also filed documentation in support of the Application. On or about November 20, 1992, Clay County referred the Application and the supporting documentation to the Division of Administrative Hearings for assignment of a Hearing Officer.

Pursuant to an agreement of the parties, a hearing was held on January 14, 1993, to give the Applicant an opportunity to offer the Application and supporting documentation into evidence and to supplement the record with additional evidence. The hearing was also held to give the Respondent, Clay County, an opportunity to be heard. Finally, the hearing was held to give the undersigned an opportunity to ask questions concerning the Application and supporting evidence.

The hearing was conducted in accordance with the Vested Rights Review Process of Clay County, Florida, as adopted by Clay County Ordinance 92-18, as amended by Clay County Ordinance 92-22. At the commencement of the hearing the Application and documentation filed with the Application were accepted into evidence. A supplement to the Application was offered by Clay County and was accepted into evidence. No witnesses were called by the parties.

The Applicant filed a proposed final order containing proposed findings of fact. A ruling on each proposed finding of fact has been made either directly or indirectly in this Final Order or the proposed finding of fact has been accepted or rejected in the Appendix which is attached hereto. Clay County did not file a proposed final order.

FINDINGS OF FACT

1. The Subject Property.

   
   

   1. The property at issue in this case had previously been owned by an individual who had begun development of the subject property and adjoining property (hereinafter referred to as the "Dawkins' Property"), in the late 1970's and early 1980's.

      
      

   2. Part of the Dawkins Property was developed and has been sold (hereinafter referred to as the "Bank Tract").

      
      

   3. The subject property (hereinafter referred to as the "Golden Tract"), was acquired by Golden/Jacksonville Co. in December, 1986.

      
      

2. Development of the Property; Government Action Relied Upon by the Applicant.

   
   

   1. Most of the Dawkins Property, including most of the Golden Tract, was approved and zoned in 1977 by Clay County for development as a shopping center. A part of the Golden Tract (hereinafter referred to as the "Multifamily Tract"), however, was not zoned for development as a shopping center at that time.

      
      

   2. Part of the Dawkins Property (the Bank Tract) was fully developed as a bank.

      
      

   3. Various environmental permits required to further develop the Dawkins Property, less the Bank Tract and the Multifamily Tract, as a shopping center were acquired by the previous owner of the property. Permits were issued by the Florida Department of Environmental Regulation and the St. Johns Water Management District.

      
      

   4. Prior to purchasing the Golden Tract, the Applicant sought assurance of Clay County that the Golden Tract (but not the Multifamily Tract) was zoned for development as a shopping center. Clay County, in a letter dated December 9,

      1985, confirmed that development of the Golden Tract as a shopping center was consistent with the then current zoning for the property.

      
      

   5. In confirming the zoning of the Golden Tract, Clay County notified the Applicant that it would be necessary that a traffic signal be installed at an intersection on Blanding Boulevard which would be impacted by the shopping center.

      
      

   6. In 1987, the Applicant sought and obtained approval of the rezoning of the Multifamily Tract for development as a shopping center.

      
      

   7. The Applicant submitted a revised site plan for the proposed shopping center dated August 27, 1987 to Clay County for approval in connection with the request to rezone the Multifamily Tract. The site plan included the development of 264,000 square feet of commercial space.

      
      

   8. The August 27, 1987 revised site plan was approved by Clay County in November, 1987.

      
      

   9. In May, 1988, the Applicant applied with the Florida Department of Transportation (hereinafter referred to as "DOT"), for a drainage connection permit and a driveway connection permit in connection with providing access to the proposed shopping center. As a condition of issuing the required permit, DOT required that Clay County construct certain intersection improvements on Blanding Boulevard, the main traffic artery adjacent to the Golden Property.

      
      

   10. The Applicant entered into negotiations with Clay County in order to get the Blanding Boulevard intersection improvements required by DOT completed. On January 9, 1990, the Applicant and Clay County entered into an agreement wherein the Applicant agreed to pay Clay County 50% of the costs (up to a total of $23,000.00) of the DOT-required intersection improvements.

       
       

3. The Applicant's Detrimental Reliance.

   
   

   1. In reliance on Clay County's actions in informing the Applicant that it would be required to provide a traffic signal in order to proceed with the development of the Golden Tract, the Applicant had the traffic signal installed at a cost of $7,500.00.

      
      

   2. Following approval of the August 27, 1987 revised site plan by Clay County, the Applicant spent approximately $128,000.00 to construct a stormwater retention pond required by the St. Johns River Water Management District.

      
      

   3. Part of the costs of intersection improvements required by DOT were incurred by the Applicant. The weight of the evidence failed to prove how much the Applicant actually spent, however.

      
      

   4. The Applicant also proceeded with the development of the Golden Tract, incurring architecture and engineering fees and other costs associated with the proposed development of the Golden Tract. A detailed breakdown of various expenses incurred by the Applicant was included at tab 25 of the documentation filed in support of the Application. Although not all of the expenditures listed at tab 25, i.e., taxes and costs associated with the purchase of the Golden Property, are relevant to the issues in this proceeding, some of the expenditures were incurred in reliance on the actions of Clay County other than approval of zoning of the Golden Tract.

4. Rights That Will Be Destroyed.

   
   

   1. Pursuant to the Clay County 2001 Comprehensive Plan, there are insufficient "peak hour trips" available on the roads impacted by the Golden Tract to accommodate the peak hour trips required for the Golden Tract if it is developed as a shopping center.

      
      

5. Procedural Requirements.

1. The parties stipulated that the procedural requirements of the Vested Rights Review Process of Clay County, adopted by Clay County Ordinance 92-18, as amended by Clay County Ordinance 92-22 have been met.

   
   

   CONCLUSIONS OF LAW

   
   

   1. Jurisdiction.

      
      

2. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.65(9), Florida Statutes (1991), and Clay County Ordinance 92-18, as amended by Clay County Ordinance 92-22.

   
   

   1. General Requirements of Article VIII of the Code.

      
      

3. Pursuant to Section 163.3167, Florida Statutes, Clay County was required to prepare a comprehensive plan governing the use and development of land located within Clay County. In compliance with Section 163.3167, Florida Statutes, Clay County adopted a comprehensive plan by Ordinance 92-03 on January 23, 1992 (hereinafter referred to as the "2001 Comprehensive Plan).

   
   

4. In order to insure that existing rights to develop property of Clay County property owners created by the Constitutions of the State of Florida and the United States, are not infringed upon by application of the 2001 Comprehensive Plan, Clay County promulgated Article VIII of the Clay County Land Development Code (hereinafter referred to as the "Code"). The intent of Clay County in adopting Article VIII of the Code is included in Section 20.8-3(b):

   
   

   1. It is the intent of this Article to provide the standards and administrative procedures for determining whether a person has a vested right to undertake development activities, notwithstanding the fact that all or part of the development is not in accordance with the requirements of the Clay County 2001 Comprehensive Plan or land development regulations.

      
      

5. There are two general types of circumstances pursuant to which vested rights to develop property may be found under Article VIII of the Code: (1) "statutory vested rights" pursuant to Section 20.8-6 of Article VIII of the Code; and (2) "equitable vested rights" pursuant to Section 20.8-7 of Article VIII of the Code.

   
   

6. Applications to determine if development rights are vested are initially reviewed for technical correctness by the Clay County Planning and Zoning Department (hereinafter referred to as the "Planning Department"). Section 20.8-8(c)(1) and (d)(1) of Article VIII of the Code.

7. Once an application is accepted, the Director of the Planning Department makes an initial determination whether development rights in the property are vested if the application is based upon statutory vesting. Section 20.8-8(c) of Article VIII of the Code. If the Director's decision is adverse to the applicant, the applicant may appeal the Director's decision. Section 20- 8.08(c)(5) of Article VIII of the Code.

   
   

8. In the case of an application for equitable vesting no determination on the merits is made by Clay County. The Director of the Planning Department, after determining that an application for equitable vesting is complete, is required to coordinate a hearing to consider the application. Section 20.8- 8(d)(3) of Article VIII of the Code. Hearings on equitable vesting applications are to be held within 60 days after the Director of the Planning Department determines that the application is complete. Id.

   
   

9. Pursuant to a contract entered into between Clay County and the Division of Administrative Hearings, Hearing Officers of the Division of Administrative Hearings may be authorized by Clay County to conduct hearings to consider appeals on applications of statutory vesting and to make the initial decision on applications for equitable vesting. Section 20.8-9(b) of Article VIII of the Code.

   
   

10. The manner in which hearings are to be conducted is governed by Section 20.8-10 of Article VIII of the Code. At the conclusion of a hearing, the Hearing Officer is required to issue a written decision approving, denying or approving with conditions the application. Section 20.8-10(a)(4) of Article VIII of the Code.

    
    

    1. Equitable Vested Rights.

       
       

11. Section 20.8-7 of Article VIII of the Code governs the determination of whether an applicant's development rights in property have vested pursuant to the equitable vested rights definition of Article VIII of the Code. The criteria for determining whether property is equitably vested are as follows:

    
    

    1. Criteria For Determining Equitable Vested Rights. Developments shall be deemed to have Equitable Vested Rights pursuant to this Section if it is shown by substantial competent evidence that a property owner or other similarly situated person:

       1. has acted in good faith and in reasonable reliance;

       2. upon a valid, unexpired act or omission of the government, and

       3. has made such a substantial change in position or incurred such extensive obligations and expenses that it would be inequitable or unjust to destroy the rights such person has acquired.

          
          

          Section 20.8-7(b) of Article VIII of the Code.

          1. Golden's Application.

          
          

12. Equitable vesting under Article VIII of the Code contains the same elements of proof required for the doctrine of equitable estoppel to apply. 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). The undersigned has been guided in this case by the case law applying the doctrine of equitable estoppel. See Section 20-8.10(a)(5) of Article VIII of the Code.

    
    

13. The Applicant has argued that it has proved by a preponderance of the evidence that all of the elements of equitable estoppel and, therefore, equitable vesting as defined in Article VIII of the Code, exist in this case. The Applicant has suggested several governmental actions in the statement of facts submitted with the Application which it relied upon. In the Applicant's proposed final order, however, the Applicant reduced the number of government actions it relied upon, suggesting that it relied on the following:

    
    

    (a). Approval by Clay County of its proposed zoning; and (b). Approval of the Applicant's preliminary site plan.

14. Zoning is not, by itself, sufficient to constitute the type of government action which will support a finding of equitable estoppel. The Clay County ordinances adopting Article VIII of the Code recognize that "existing zoning does not create any specific rights to development densities or intensities under the Plan". The evidence in this case does, however, support the Applicants position concerning the second action of Clay County. Clay County's action in approving the August 27, 1987 revised site plan is a representation from Clay County that the Applicant's proposed development of of the Golden Tract may proceed.

    
    

15. Additionally, although not specifically mentioned in the "Conclusions" portion of the Applicant's proposed final order, the discussions between the Applicant and Clay County concerning the traffic signal required by DOT and the intersection improvements required by DOT constitute additional representations from Clay County that support approval of the Application.

    
    

16. Some of the government actions mentioned in the proposed final order and in the statement of facts submitted with the Application are not the types of actions which support approval of the Application. Actions involving prior owners and actions of government agencies other than Clay County do not constitute the type of government action necessary to warrant approval of the Application. For example, the issuance by Clay County of the building permit

    for construction of the bank took place long before the Golden Tract was acquired by the Applicant. Therefore, no representation was made to the Applicant by Clay County by the issuance of the bank building permit.

    
    

17. Based upon the foregoing, it is concluded that, in light of the actions of Clay County taken with the Applicant, the first two criteria for equitable vesting have been proved: the Applicant acted in good faith and in reasonable reliance upon a valid, unexpired act or omission of the government.

    
    

18. The changes in position or obligations and expenses that the Applicant has argued it incurred in reliance upon Clay County's actions include the expenditure of significant funds in furtherance of the development the Golden Tract. The Applicant has suggested that it has incurred expenses in excess of

    $6,000,000.00 in reliance on Clay County's actions. Most of those expenditures were not expended, however, in reliance upon the specific actions of Clay County which support approval of the Application and/or do not constitute the types of expenditures which should be considered in determining whether equitable vesting applies. For example, the cost of acquiring the Golden Tract and interest on loans associated with the acquisition of the Golden Tract should not be considered. The evidence, however, supported a finding that a significant amount of other expenses were incurred in direct reliance on the actions of Clay County that is relevant to a consideration of the Application.

    
    

19. Finally, the evidence proved that the Applicant may not be able to develop the Golden Tract in the manner it intends to develop the property if required to comply with the Clay County 2001 Comprehensive Plan.

    
    

20. In light of the expenditures of the Applicant and the adverse impact of complying with the Clay County 2001 Comprehensive Plan, it is concluded that the third criterion for equitable vesting has also been proved: the Applicant has made a substantial change in position or incurred such extensive obligations and expenses that it would be highly inequitable or unjust to destroy the rights the Applicant has acquired.

    
    

21. Based upon a review of the evidence presented at the hearing held before the undersigned on January 14, 1993, it is concluded that the Applicant has proved that the elements of equitable vesting apply to the Golden Tract.

ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that the Application for Vested Property Certification for Claims

of Equitable Vested Rights Pursuant to Future Land Use Policy 1.8, Clay County

1991-2001 Comprehensive Plan dated November 16, 1992 and filed on behalf of Golden/Jacksonville Co. is APPROVED. A Type 4 Vested Property Certificate should be issued to the Applicant for the Golden Tract, including the Multifamily Tract.

DONE and ORDERED this 12th day of February, 1993, 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 12th day of February, 1993.

APPENDIX

The Applicant has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Final Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Clay County did not file a proposed final order.

The Applicant's Proposed Findings of Fact

1. Accepted in 3 and 7. The amount paid for the property is not relevant.

2. Accepted in 9-10.

3. Accepted, in part, in 15. D Accepted in 8 and 14.

1. Accepted in 12.

2. Accepted in 13 and 16.

3. Hereby accepted. The evidence, however, failed to

   prove that Clay County was involved in the issuance of the Department Environmental Regulation permit.

4. Hereby Accepted.

5. Issuance of the St. Johns Water Management District permits and the Department of Environmental Regulation permit were not actions of Clay County; rezoning is not sufficient action to support equitable vesting; see findings of fact 12-13, concerning DOT's permits; and the action concerning the traffic signal has been accepted in 8.

6. Accepted in 14-16. K Not relevant.

L See 17.

COPIES FURNISHED:

W. O. Birchfield, Esquire Lynda R. Aycock, Esquire 3000 Independent Square Jacksonville, Florida 32202

Mark Scruby

Clay County Attorney Post Office Box 1366

Green Cove Springs, Florida 32043

Lynn A. Weber Senior Planner

Vested Rights Coordinator Clay County

Post Office Box 367

Green Cove Springs, Florida 32043-0367

Phil Leary, Director

Planning Zoning and Code Enforcement Clay County

Post Office Box 367

Green Cove Springs, Florida 32043-0367

Dale Wilson, Chairman

Board of County Commissioners Post Office Box 1366

Green Cove Springs, Florida 32043

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 92-006947VR

Orders for Case No: 92-006947VR