STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MCDILL COLUMBUS CORPORATION, ) RANCH ACRES SUBDIVISION, )

)

Petitioner, )

)

vs. ) CASE NO. 93-5209VR

)

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 October 5, 1993, in Green Cove Springs, Florida.

APPEARANCES

For Petitioner: Maynard Fernandez, President

McDill Columbus Corporation Post Office Box 4118

Tampa, Florida 33677-4118

For Respondent: Mark Scruby

Clay County Attorney Post Office Box 1366

Green Cove Springs, Florida 32043 STATEMENT OF THE ISSUES

Whether the Petitioner, McDill Columbus Corporation, has demonstrated, pursuant to the Vested Rights Review Process of Clay County, Florida, that vested right to undertake development of certain real property located in Clay County should be issued by 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 August 27, 1993, an Application for Vested Property Certification for Claims of Equitable Vested Rights Pursuant to Future Land Use Policy 1.8, Clay County 2001 Comprehensive Plan, (hereinafter referred to as the "Application"), was filed by Maynard Fernandez as President of McDill Columbus Corporation (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 September 13, 1993, 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 October 5, 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 Ordinances 92-22, 92-29 and 93-26. At the commencement of the hearing, the Application and documentation filed with the Application were accepted into evidence. Mr. Fernandez, Lynn Weber, Senior Planner with Clay County and Mike French testified. Clay County offered three exhibits which were accepted into evidence.

No transcript of the hearing was ordered by the parties. Although informed of their right to do so, neither party filed a proposed final order.

FINDINGS OF FACT

1. The Subject Property.

   
   

   1. The property at issue in this proceeding consists of approximately 92 acres of land located in Clay County, Florida.

      
      

   2. The subject property is known as "Ranch Acres."

      
      

   3. Ranch Acres was subdivided into 49 lots by an unrecorded subdivision plat. The lots range in size from approximately 1.1 to 2.9 acres.

      
      

   4. Roads, which are unpaved, and drainage for Ranch Acres are privately owned.

      
      

   5. A boundary survey of Ranch Acres was prepared and contains a surveyor's certification of April 20, 1982.

      
      

2. Pre-1985 Subdivision Regulations of Clay County.

   
   

   1. Prior to September of 1985 Clay County did not require platting of subdivisions such as Ranch Acres.

      
      

   2. In September of 1985, Clay County adopted Ordinance 85-68 creating three types of subdivisions and providing regulations thereof. An exception to these requirements, however, was included in Ordinance 85-68: subdivisions shown on a certified survey prior to September of 1985 with lots and roads laid out would continue to not be subject to regulation so long as the lots continue to comport with the survey.

      
      

3. Government Action Relied Upon Before the Applicant's Sale of the Property.

   
   

   1. The Applicant was aware that it could develop Ranch Acres as an unrecorded subdivision in Clay County.

      
      

   2. The development of Ranch Acres comes within the exception to Ordinance 85-58.

   3. In a letter dated December 19, 1988 the Administrator of the Clay County Planning & Zoning Department informed the Applicant that Ranch Acres' "appears to be a valid unrecorded subdivision." The Administrator went on to state, in relevant part, the following:

      
      

      As a result of this "loophole" the subdivision does not have to meet the minimum general design standards set forth in the county ordinance. In addition it does not have to meet other guarantees and criteria established in the ordinance.

      
      

      . . . . The land use and the size of the lots do conform with county

      regulations. . . .

      
      

   4. A similar letter was sent to the Applicant by the Director of Engineering of Clay County on or about June 18, 1990.

      
      

4. The Applicant's Detrimental Reliance.

   
   

   1. The Applicant provided dirt roads and drainage to Ranch Acres. The roads were constructed during the early 1980's and the drainage was constructed in approximately 1986.

      
      

   2. The costs of improvements to Ranch Acres incurred by the Applicant was approximately $30,000.00.

      
      

5. Rights That Will Be Destroyed.

   
   

   1. If the Applicant must comply with the Clay County comprehensive plan it will be required to pave the roads of the subdivision and improve drainage.

      
      

   2. The Applicant will not be able to continue to develop the property under the Clay County comprehensive plan because the plan allows development of land such as Ranch Acres on a minimum of ten acre lots. The Applicant cannot subdivide the remaining lots of Ranch Acres that have not been sold into ten acre lots.

      
      

6. 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, 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 Ordinances 92-22, 92-29 and 93-26.

   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):

   
   

   (b) 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. 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.

   
   

8. 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.

   
   

9. 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.

      
      

10. 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. The Ranch Acres' Application.

          
          

11. 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.

    
    

12. The Applicant has argued that it 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.

    
    

13. Based upon the evidence presented in this matter, the Applicant relied upon the state of the law governing unrecorded subdivisions in Clay County prior to September of 1985, and letters from Clay County representatives confirming the fact that Ranch Acres was not subject to Ordinance 85-68. In good faith reliance upon Clay County's law and its representations, the Applicant proceeded

    to begin development of the property and to sell lots within Ranch Acres. It is therefore concluded that the first two criteria for equitable vesting have been proven: the Applicant acted in good faith and in reasonable reliance upon a valid, unexpired act or omission of Clay County.

    
    

14. The changes in position or obligations and expenses that the Applicant has argued it incurred in reliance upon Clay County's actions consists of the expenditure of significant funds in furtherance of the development of the property. The Applicant incurred expenses of approximately $30,000.00 improving the property.

    
    

15. Finally, the evidence proved that the Applicant, if required to comply with the 2001 Comprehensive Plan, would not be able to continue development of Ranch Acres.

    
    

16. 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 proven: 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.

    
    

17. Based upon a review of the evidence presented at the hearing held before the undersigned on October 5, 1993, it is concluded that the Applicant has proved that the elements of equitable vesting apply.

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 2001 Comprehensive Plan dated August 27, 1993, and filed by Maynard Fernandez as President of McDill Columbus Corporation is APPROVED. A Type 4 Vested Property Certificate should be issued to the Applicant.

DONE and ORDERED this 3rd day of November, 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 3rd day of November, 1993.

COPIES FURNISHED:

Maynard Fernandez, President McDill Columbus Corporation Post Office Box 4118

Tampa, Florida 33677-4118

Mark Scruby

Clay County Attorney Post Office Box 1366

Green Cove Springs, Florida 32043

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

Lynn A. Weber Senior Planner

Vested Rights Coordinator Clay County

Post Office Box 367

Green Cove Springs, Florida 32043-0367

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

This Final Order is subject to judicial review pursuant to Section 163.3215, Florida Statutes.

Docket for Case No: 93-005209VR

Orders for Case No: 93-005209VR