STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BEAR RUN DEVELOPMENT, INC., )

)

Petitioners, )

)

vs. ) CASE NO. 92-6948VR

) VPC-98-0001

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: John Kopelousos, Esquire

Post Office Box 562

Orange Park, Florida 32067-0562

For Respondent: Mark Scruby

Clay County Attorney Post Office Box 1366

Green Cove Springs, Florida 32043 STATEMENT OF THE ISSUE

Whether the Petitioner, Bear Run Development, Inc., 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 part of such 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 John Kopelousos on behalf of Bear Run Development, Inc. (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.

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. No witnesses were called by the parties. No documents were offered by Clay County.

The Applicant has 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 proceeding was acquired by the Applicant, Bear Run Development, Inc., in August, 1986.

      
      

   2. After rezoning the property, the Applicant began to develop the property in phases or units as "Bear Run".

      
      

   3. At issue in this proceedings is Unit 6 of Bear Run. Plat Book 23, page

      49 and 50.

      
      

   4. Unit 6 of Bear Run consists of 100 subdivided lots. A total of 24 lots in Unit 6 have been developed. Six of the 24 developed lots of Unit 6 have been sold and have homes constructed on them.

      
      

2. Government Action Relied Upon.

   
   

   1. By letter dated March 9, 1987, the Clay County Engineering Office notified the Applicant's engineers that the preliminary plans for the development of Unit 6 were conditionally approved. This notification was the equivalent of a "notice to proceed."

      
      

   2. The plat for the development of Unit 6 was approved by Clay County on or about August 22, 1989.

      
      

   3. On August 25, 1992, Clay County accepted Unit 6 for maintenance.

      
      

   4. Prior to accepting Unit 6 for maintenance, and prior to July 1, 1992, Clay County notified the Applicant that an easement which was being used for stormwater ultimate outfall for Unit 6 was a privately owned easement.

      
      

   5. The Applicant diligently pursued acquisition of title to the easement required for stormwater outfall from Unit 6. The easement problem was resolved to the satisfaction of Clay County in the fall of 1992. But for the easement, the development of Unit 6 would have been completed prior to the effective date of the Clay County 2001 Comprehensive Plan. The evidence failed to prove, however, that development would have been complete before the Clay County 2001 Comprehensive Plan was adopted.

3. The Applicant's Detrimental Reliance.

   
   

   1. In reliance on Clay County's actions in approving the Applicant's preliminary plans on March 9, 1987, approving the plat for Unit 6 on August 22, 1989 and requiring that the Applicant obtain the necessary easement to accept maintenance of Unit 6, the Applicant has expended funds in furtherance of the development of Unit 6. In total, the Applicant has spent less than $246,589.69 in reliance on the actions of Clay County described in findings of fact 5-9.

      
      

4. Rights That Will Be Destroyed.

   
   

   1. The Applicant will, if required to comply with the Clay County 2001 Comprehensive Plan, incur additional expenses to comply with transportation concurrency requirements of the Plan.

      
      

5. Procedural Requirements.

1. The parties stipulated that the procedural requirements of 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 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. Bear Run'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 actions of Clay County that the Applicant has suggested it relied on include the following:

    
    

    1. Clay County's approval of the Applicant's preliminary plans on March 9, 1987;

       
       

    2. Clay County's approval of the plat for Unit 6 on August 22, 1989; and

       
       

    3. Clay County's action in requiring that the Applicant obtain the necessary stormwater outfall easement before accepting maintenance of Unit 6.

    
    

14. The evidence in this case supports the Applicant's position concerning the first two actions of Clay County. Both indicate a position of Clay County that the Applicant's proposed development of Unit 6 of Bear Run may proceed.

    
    

15. The third action of Clay County is not persuasive because of when it occurred. At the time that Clay County informed the Applicant that there was a problem with the stormwater easement, the Clay County 2001 Comprehensive Plan had already been adopted. The Clay County 2001 Comprehensive Plan was adopted on January 23, 1992, and the Applicant was informed of the problem with the easement by letter from the Clay County Attorney dated February 5, 1992. Although the Clay County 2001 Comprehensive Plan was not effective on January 23, 1992, the Applicant failed to prove that it was not aware of the plan. The Applicant has, therefore, failed to prove that any reliance by the Applicant on

    the action of Clay County's concerning the easement was "reasonable", at least with regard to whether the Applicant would have to comply with the Clay County 2001 Comprehensive Plan.

    
    

16. In light of the actions of Clay County described in paragraph 24 (a) and (b), it is concluded that 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 Clay County.

    
    

17. 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 of Unit 6. The Applicant has suggested that it has incurred expenses of $246,589.69 in reliance on Clay County's actions. The evidence supported a finding that most, if not all, of the $246,589.69 was expended by the Applicant in furtherance of the development of Unit 6 in reliance on Clay County's actions.

    
    

18. Finally, the evidence proved that the Applicant will, if required to comply with the Clay County 2001 Comprehensive Plan, incur additional expenses of complying with transportation concurrency requirements of the Plan.

    
    

19. 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.

    
    

20. 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 Unit 6.

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 Bear Run Development, Inc., is APPROVED. A Type 4 Vested Property Certificate should be issued to the Applicant for Bear Run Unit 6.

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 1 and 3.

2. Accepted in 5-7.

3. Accepted, to the extent relevant, in 4 and 8-9.

4. Although the evidence supports a finding that the Applicant has expended $871,408.71, the evidence failed to prove that all of these expenditures were related only to Unit 6. The evidence also failed to prove that all of these expenditures were in reliance upon actions of Clay County with would support a finding of equitable vesting.

COPIES FURNISHED:

John Kopelousos, Esquire 1329-A Kingsley Avenue Orange Park, Florida 32073

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: 92-006948VR

Orders for Case No: 92-006948VR