STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ST. WILLIAM LAND COMPANY, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 94-3343VR

)

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 August 25, 1994, by telephone.

APPEARANCES

For Petitioner: S. LaRue Williams, Esquire

Post Office Box 3096

Daytona Beach, Florida 32118-0096

and

Paul D. Newell, Esquire Post Office Box 1369

Keystone Heights, Florida 32656

For Respondent: Mark Scruby

Clay County Attorney Post Office Box 1366

Green Cove Springs, Florida 32043 STATEMENT OF THE ISSUES

Whether Petitioner, St. William Land Company, Inc., demonstrated, pursuant to the Vested Rights Review Process of Clay County, Florida, that a vested rights certificate to continue 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 June 3, 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 S. LaRue Williams, Esquire, and Paul D. Newell, Esquire, on behalf of Petitioner with the Clay County Department of Planning and Zoning. Petitioner also filed documentation in support of the Application. On

or about June 13, 1994, Clay County referred the Application and the supporting documentation to the Division of Administrative Hearings for assignment of a Hearing Officer.

A hearing was held on August 25, 1994. The undersigned participated in the hearing by telephone from Tallahassee, Florida. The hearing was conducted to give Petitioner 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 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. Petitioner presented the testimony of William Bitetti and Paul Newell. The Application and documentation filed with the Application (Petitioner's exhibit 1) was accepted into evidence. Petitioner's exhibits 2-6 were also accepted into evidence.

Lynn Weber, Senior Planner with Clay County, testified on behalf of Clay County. No exhibits were offered by Clay County.

No transcript of the hearing was ordered by the parties.

The parties have filed proposed final orders 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 findings of fact has been accepted or rejected in the Appendix which is attached hereto.

FINDINGS OF FACT

1. The Subject Property.

   
   

   1. The property at issue in this proceeding consists of approximately 66 lots (hereinafter referred to as the "Subject Property"), located in Highridge Estates Subdivision (hereinafter referred to as "Highridge"). Each lot is approximately one-third acre in size. Highridge and the Subject Property are located in Clay County, Florida.

      
      

   2. Highridge was filed in the public records of Clay County, Florida, as a platted subdivision in January of 1970.

      
      

   3. At the time Highridge was platted, each lot met the zoning requirements applicable to Highridge. Pursuant to then-existing zoning, each Highridge lot could be developed as a single-family residence by construction or the placement of a mobile home thereon.

      
      

2. Adoption of the Clay County 2001 Comprehensive Plan.

   
   

   1. Clay County adopted the Clay County 2001 Comprehensive Plan (hereinafter referred to as the "Plan"), on January 23, 1992, as required by the Local Government Comprehensive Planning and Land Development Regulation Act, Part II, Chapter 163, Florida Statutes (hereinafter referred to as the "Act").

   2. At the time of the adoption of the Plan, the Plan contained policies which would have permitted lots such as those in Highridge that had not yet been developed to be developed as a single-family residence by the placement of a mobile home thereon.

      
      

   3. As required by the Act, the Plan was submitted to the Florida Department of Community Affairs (hereinafter referred to as the "Department"), for review and determination of whether the Plan was "in compliance" as defined by the Act.

      
      

   4. During the time that the Plan was being considered it was publicly known that the policies which would allow the placement of mobile homes on each of the lots in Highridge might not be accepted by the Department.

      
      

3. Petitioner's Acquisition of the Subject Property.

   
   

   1. During the early 1990's William Bitetti began looking for real estate to invest in.

      
      

   2. Mr. Bitetti, through the services of Century 21 Lakeside Realty, became aware of the availability of lots in Highridge as a possible investment.

      
      

   3. Mr. Bitetti was assured by Century 21 Lakeside Realty's realtor that Highridge could be developed by the placement of a single mobile home on each lot.

      
      

   4. On or about March 25, 1992 Mr. Bitetti entered into a Contract for Sale and Purchase of 56 lots in Highridge. The following condition was included in the Contract for Sale and Purchase:

      
      

      this contract is only conditioned upon Buyer being able to place a Doublewide Mobile Home with attendant well, septic tank and system and electric service on each Lot, to be deter- mined by Buyer's attorney within 2 (two) weeks of the effective date of this contract.

      
      

   5. Mr. Bitetti intended that the lots would be purchased by the Petitioner, St. William Land Company, Inc. Mr. Bitetti is the sole shareholder and the President of Petitioner.

      
      

   6. Mr. Bitetti intended that the lots would be marketed for sale as single-family mobile home sites.

      
      

   7. Mr. Bitetti's attorney, Paul D. Newell, had experience with Highridge, having owned lots within Highridge himself.

      
      

   8. Mr. Newell was also aware of the language of the Plan that would allow development of the lots in Highridge. Mr. Newell had attempted to keep himself informed as to the progress of the Plan.

      
      

   9. Mr. Newell spoke to an official of the Clay County Planning and Zoning Department to confirm the language that would allow development of the lots in Highridge was included in the Plan and was told that it was. Mr. Newell also confirmed that regulations in existence at the time would allow Mr. Bitetti to market the lots as intended. The evidence failed to prove that any official of

      Clay County gave Mr. Newell assurances that the Plan would be approved by the Department as written.

      
      

   10. Mr. Newell was aware that the Plan had been submitted to the Department for review and had not yet been approved by the Department. Mr. Newell was also aware that it was possible that the Department would not accept the portion of the Plan that allowed continued development of developments like Highridge.

       
       

   11. On May 21, 1992 the Petitioner purchased the 56 lots in Highridge. Two of the 56 lots were subsequently sold by Petitioner.

       
       

   12. On or about October 12, 1992, Petitioner purchased an additional 12 lots in Highridge.

       
       

   13. The 12 lots purchased on October 12, 1992 and 54 of the lots purchased on May 21, 1992 constitute the Subject Property.

       
       

   14. At the time of purchase, the Subject Property lots could be sold for the installation of a mobile home on each lot pursuant to the law then in effect. The Plan was, however, still being reviewed by the Department.

       
       

   15. The Subject Property lots have direct access to a publicly owned and maintained right-of-way or to a privately owned platted right-of-way.

       
       

4. Alleged Government Action Relied Upon by the Petitioner.

   
   

   1. On or about July 5, 1992, after acquiring the first 56 lots, Petitioner was issued a permit by the Clay County Building Department authorizing Petitioner to place a mobile home sales model on one of the lots.

      
      

   2. The evidence failed to prove that Clay County made any representation to Petitioner or Mr. Bitetti, or their representatives, that the policies of the Plan which would allow each lot of the Subject Property to be developed as individual sites for mobile homes would be approved by the Department or that, if it was, the law would not subsequently be changed. Nor did the evidence prove that Clay County represented in anyway that the Subject Property could be developed as Petitioner intended.

      
      

5. Petitioner's Alleged Detrimental Reliance.

   
   

   1. Petitioner purchased the Subject Property for approximately

      $49,048.18, including closing costs. Two of the 68 lots purchased by Petitioner were subsequently sold. Petitioner realized a profit of approximately $2,582.31 on the sale of these lots.

      
      

   2. During 1992 Petitioner paid $29,515.37 to purchase and locate a mobile home as a model on one of the lots, to furnish the mobile home, and for landscaping, utilities, and the installation of a well, septic tank and power pole associated with the lot the mobile home was placed on.

      
      

   3. Petitioner also incurred the following expenses: $1,452.29 for postage associated with attempting to sell lots; $250.00 for charitable donations; $167.66 in bank account service fees; $2,957.85 for hazard and liability insurance; $36.50 in "miscellaneous" expenses; $2,355.72 for ad valorem taxes; and $510.00 in legal fees. Similar expenses were also incurred in 1993.

   4. The evidence failed to prove that Petitioner incurred any expenses or obligations for the development of the Subject Property.

      
      

6. Rights That Allegedly Will Be Destroyed.

1. Subsequent to Petitioner's acquisition of the Subject Property, the issuance of the permit to place a mobile home sales model on one of the lots and the acquisition of the mobile home and placement of the mobile home on one lot, the Plan was determined to not be in compliance with the Act. In particular, it was determined that the policies of the Plan which would have permitted lots such as those in Highridge that had not yet been developed to be developed by the placement of a mobile home on each lot caused the Plan to be "not in compliance".

   
   

2. Clay County subsequently amended the Plan to eliminate the policies that would have permitted lots such as those in Highridge that had not yet been developed to be developed by the placement of a mobile home on each lot.

   
   

3. The Plan was determined to be in compliance on April 27, 1993.

   
   

4. As a result of the elimination of the policies pertinent to this matter, Clay County was required to modify the zoning for the Subject Property. The Subject Property was zoned for use for the smallest lot size allowed pursuant to the Plan: one-half acre.

   
   

5. As a result of the foregoing, most of the Subject Property lots are too small to be developed individually.

   
   

6. Pursuant to the Plan, lots that stand alone may be developed by the placement of a single mobile home thereon. Two of the 66 lots stand alone and, therefore, may be developed by the placement of a single mobile home thereon.

   
   

7. The remaining 64 lots of the Subject Property are located in contiguous groups and, pursuant to the Plan, must be combined into one-half acre lots or larger. As a result, the Petitioner will lose the ability to sell some number of his lots for the placement of a single mobile home thereon.

   
   

8. The evidence failed to prove what the actual economic impact will be to Petitioner if it cannot sell each lot for use as a single mobile home lot.

   
   

9. Petitioner was notified by a letter dated August 24, 1993 and a letter to its real estate broker dated January 24, 1994 and a letter to Mr. Bitetti dated February 2, 1994, of the restrictions on the use of the Subject Property. The letters were all from Clay County personnel.

   
   

   CONCLUSIONS OF LAW

   
   

   1. Jurisdiction.

      
      

10. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.65(9), Florida Statutes (1993), 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.

11. 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.

    
    

12. 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 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.

       
       

13. 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.

    
    

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

    
    

15. 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.

    
    

16. 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.

    
    

17. 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.

18. 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 Petitioner's Application.

          
          

19. 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.

    
    

20. Petitioner has suggested that the following actions of Clay County were relied upon by it:

    
    

    1. Clay County's acceptance and approval of Highridge Estates Subdivision Plan of Record in January, 1970;

    2. Clay County's proposed plan which would have permitted Applicant to use and sell each of the 68 lots in Highridge Estates Subdivision for mobile home use; and

    3. Clay County's action in advising Applicant's real estate lawyer, Paul D. Newell, that each lot could be sold and used for mobile homes prior to Applicant's purchase of the lots.

    
    

    Pages 8 and 9 of Petitioner's proposed final order.

    
    

21. The foregoing actions of Clay County are insufficient to support a conclusion that Petitioner is entitled to equitable vesting in this case:

    
    

    1. At the time that Highridge was platted and at the time the Petitioner purchased the

       Subject Property, it was not reasonable to expect that the existing zoning and land use regulations applicable to Highridge would not change. See City of Gainesville v. Cone, 365 So.2d 737 (Fla. 1st DCA 1978). This conclusion is especially true at the time that Petitioner purchased the Subject Property. It was apparent at that time that the policies of the proposed Plan which would allow the continued use of the Subject Property for single mobile homes

       on each lot were policies which might not be accepted by the Department.

    2. As to the adoption of the Plan by Clay County, the difficulty with this action is that the Plan

       was not effective pursuant to the Act until it was determined to be in compliance. The Plan was, therefore, only a "proposed" Plan. Pursuant to the Act the Plan should not have been relied upon until it was found to be in compliance. Again, it was apparent that the policies relied upon by Petitioner were controversial.

    3. Finally, the advice from Clay County to Mr. Newell was not sufficient to bind Clay County. The evidence failed to prove that Mr. Newell was told that the proposed Plan would be accepted by the Department in its entirety or that it was even likely that the crucial policies that would allow the use of the Subject Property for single mobile homes per lot would be accepted by the Department.

    
    

22. Any reliance which Petitioner placed on the proposed Plan and the indication by Clay County personnel to Mr. Newell that the proposed Plan still contained the policies that would allow the use of the Subject Property for single mobile homes per lot was not reasonable. See, Smith v. City of Clearwater, 383 So.2d 681 (Fla. 2d DCA 1980).

    
    

23. Based upon the foregoing, it is concluded that Petitioner failed to prove the first two criteria for equitable vesting: the Petitioner failed to prove that it acted in good faith and in reliance upon a valid, unexpired act or omission of Clay County.

    
    

24. The changes in position or obligations and expenses that Petitioner has argued were incurred in reliance upon Clay County's actions consist of "significant funds in furtherance of the purchase and development of the 68 lots in Highridge Estates Subdivision." In particular, "expenses in the purchase of the property, closing expenses, purchase of a model mobile home at a cost in

    excess of $25,000.00, insurance, real estate taxes, furniture for the model, utilities, marketing of the property, sales expenses and other obligations and expenses in an amount in excess of $88,000.00."

    
    

25. None of the expenditures relied upon by Petitioner are the type of expenditures that would support a finding that equitable estoppel should apply in this case. The types of expenditures that must be shown to have been made are expenditures associated with the development of the land. See Hollywood Beach Hotel Co. v. City of Hollywood, 329 So.2d 10 (Fla. 1976); and Project Home, Inc. v. Town of Astatula, 373 So.2d 710 (Fla. 2d DCA 1975). None of the expenditures incurred by Petitioner were associated with developing the Subject Property. The expenses incurred by Petitioner were in the nature of capital and marketing expenditures.

    
    

26. Finally, while the evidence proved that Petitioner will not be able to utilize all of the lots of the Subject Property as it had intended, the evidence failed to prove that sales of the Subject Property as lots of at least one-half acre will result in an economic loss to Petitioner.

    
    

27. Based upon the foregoing, it is concluded that Petitioner failed to prove the third criteria for equitable vesting: Petitioner failed to prove that it 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 Petitioner has acquired.

    
    

28. Based upon a review of the evidence presented at the hearing held before the undersigned on August 25, 1994, it is concluded that Petitioner has failed to prove 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 filed June 3, 1994 by S. LaRue Williams, Esquire, and Paul D. Newell, Esquire, on behalf of Petitioner is DENIED.

DONE and ORDERED this 9th day of September, 1994, 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 9th day of September, 1994.

APPENDIX

The parties have 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.

Petitioner's Proposed Findings of Fact

A Although the conclusion that the proposed findings of fact in this paragraph constitute "Government Action Relied Upon", these proposed findings have been accepted in 1-6, 10-11, 14-19, 21-23 and 26. But see 24.

B See 18-19, 23 and 25-27. But see 24 and 28.

C See 33 and 35. But see 36. D Hereby accepted.

Clay County's Proposed Findings of Fact

21 Hereby accepted.

COPIES FURNISHED:

S. LaRue Williams, Esquire Post Office Box 3096

Daytona Beach, Florida 32118-0096

Paul D. Newell, Esquire Post Office Box 1369

Keystone Heights, Florida 32656

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 JUDICIAL REVIEW

THIS FINAL ORDER IS SUBJECT TO JUDICIAL REVIEW PURSUANT TO SECTION 163.3215, FLORIDA STATUTES.

Docket for Case No: 94-003343VR

Orders for Case No: 94-003343VR