STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT I. MOORE and )

KATHRYN F. MOORE, )

)

Petitioners, )

)

vs. ) CASE NO. 94-5525VR

) CLAY COUNTY BOARD OF ) COUNTY COMMISSIONERS, )

)

Respondent. )

)

RECOMMENDED ORDER

The final hearing in the above-styled matter was heard pursuant to notice by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings, on October 27, 1994 in Green Cove Springs, Florida.

APPEARANCES

For Petitioners: William Nussbaum, Esquire

1851 Executive Center Drive, Suite 102

Jacksonville, Florida 32207

For Respondent: Mark H. Scruby, Esquire

Clay County Attorney Post Office Box 1366

Green Cove Springs, Florida 32043 STATEMENT OF ISSUES

Whether the Petitioners have shown any vested rights pursuant to Clay County Ordinance 92-18, as amended under Clay County Ordinances 92-22, 92-29, and 93-26, for the issuance of a building permit for each of Petitioners' lots, as amended in Petitioners' application, depicted on surveyed plat recorded with the county clerk on December 31, 1991.

PRELIMINARY STATEMENT

On September 14, 1994, the Petitioners filed an application for certification of vested property based upon a claim of equitable vested rights pursuant to Future Land Use Policy 1.8, Clay County 2001 Comprehensive Plan.

The County referred the matter to the Division of Administrative Hearings. The formal hearing was noticed and heard as noticed.

The Petitioners amended their application at hearing by combining lots A and F and D and E. Lots A and F together contain more than five acres and meet the Respondent's land use criteria.

One of the Petitioners, Robert I. Moore, testified in his own behalf, and introduced Petitioners' Exhibit 1, the application, and Petitioners' Exhibit 2, a colored map. Both sides called Susan Fraser, who was a member of the planning staff at the time of the adoption of the planning ordinances, who identified Respondent's Exhibits 1 to 6.

The briefs of the parties were read and considered. The Appendix to this order states which of their proposed findings were adopted and which were rejected and why.

FINDINGS OF FACT

1. In 1984, the Petitioners, a married couple, purchased a parcel of real property zoned agricultural located in Clay County.

   
   

2. The Petitioners' parcel, which is the subject of the application for vested rights, is a fraction over twenty-two acres and is bounded on the east side by the St. John's River, on the west side by County Road 209, and by other private property on the north and south which is not subject to the application under consideration. An abandoned rail road right of way runs northwest to southeast across the parcel approximately half way between the paved road on the western boundary of the property and the river which forms the eastern boundary. A sand road has been constructed between the paved road and the abandoned railroad right of way.

   
   

3. The land uses for agricultural property included single family residential development with one single family residence per acre until the enactment of the comprehensive plan discussed in detail below.

   
   

4. The Petitioners purchased the parcel for the purpose of constructing a single family, and subdividing and selling the remaining portions of the parcel as home sites.

   
   

5. The Petitioners obtained two mobile home permits (move-on permits) in 1986 and a building permit for the construction of a barn in 1989 from Respondent. In addition, the Petitioners obtained a permit for the construction of a dock from the Corps of Engineers.

   
   

6. The Petitioners had a road constructed to access the interior of the property prior to 1990. The Petitioners later purchased equipment including a back hoe, grader, and dump trucks in 1990 for improving the road and improving drainage. The Petitioner, Robert I. Moore, completed improvements to the sand road with his own labor incurring costs for fill, fuel, and equipment repairs.

   
   

7. The Petitioners ordered a survey which was completed in 1991. They then conveyed property between themselves via quit claim deeds to subdivide the property into nine lots, A through I. Three lots were created along the river, Lot I (3.59 acres), Lost H (3.16 acres), and Lot G (2.97 acres). Three lots were created along the paved road: Lot C running from the paved road to the rail road right of way containing 2.87 acres; Lot B running east from the paved road approximately 140 feet containing 1.11 acres; and Lot A running east from the paved road approximately 150 feet containing 1.09 acres. Lot F is located east of Lot A, and runs east approximately 800 feet containing 4.60 acres. Lot D is located east of Lot B and runs east approximately 300 feet containing 1.42 acres. Lot E is located east of Lot D, runs east approximately 200 feet to the rail road right of way, and contains approximately 1.42 acres.

8. The surveyed subdivision of the parcel was recorded on December 31, 1991, together with private road maintenance agreement and quit claim deeds.

   
   

9. The mobile homes were located on lots B and D, and barn had been built on Lot F. The amended application combined Lots A and F, and Lots D and E.

   
   

10. The Petitioners spent money and expended energy to make improvements to the property in pursuit of their objective of developing the parcel. Their efforts included developing a graded, sand road through the property, improving the drainage, having a survey of the property conducted, and engaging an attorney to advise them.

    
    

11. In June 1991, the Respondent adopted a comprehensive land use plan which was submitted to the Department of Community Affairs (DCA) of the State of Florida. The DCA is charged by statute to determine if county comprehensive planning ordinances conform to state requirements. Those counties whose plans did not conform could amend them to conform; however, if the county failed to bring its plan into compliance, sanctions could be invoked by the state against the county.

    
    

12. The Respondent's initial plan as adopted retained agricultural zoning for the parcel owned by Petitioners, and the Petitioners were aware of this having obtained several planning maps reflecting the proposed land uses for various areas of the county including their parcel.

    
    

13. The Petitioners' subdivision complied with all existing requirements of the county to include those contained in the county's original comprehensive land use plan.

    
    

14. The county's comprehensive land use plan provided that a lot of record included "a non-platted piece, parcel, lot, or tract of land described by metes and bounds or other similar means in a legally recorded deed as of July 1, 1991." The Petitioners' subdivision was not recorded until December 31, 1991.

    
    

15. The county's comprehensive land use plan was not accepted by the DCA which received written objections, recommendations and comments (ORC Report) of the DCA. These objections included the density allowed in rural residential land use classification.

    
    

16. On December 5, 1991, the Respondent and its Planning Commission held a joint workshop, advertised and open to the public, at which a modification to the density provisions of the comprehensive land use plan was considered for the purpose of addressing the objections by the DCA. The DCA's recommendation to reduce density in rural areas from one single family residence per acre to one to every five acres based upon a point system was specifically considered.

    
    

17. On January 23, 1992, following a public hearing as required by statute, the Respondent adopted the amended plan containing the reduced density for rural areas based upon the point system. This changed the density of the Petitioners' parcel to one single family residence per five acres.

    
    

18. This amended plan retained the definition of "lot of record" first discussed in March 1991; later considered at the public hearing on the plan in May 1991; and adopted in the original comprehensive plan.

    
    

19. The assessed value of the parcel in 1994 was $274,200; in 1993 it was

    $158,462; and in 1992 it was $96,921.

20. The expenditures for fill, labor, and repairs to construct and improve the road cost $23,425. The purchase price of the heavy equipment used by Mr. Moore to improve the road was $26,200 including $4,595 for repair of the loader/backhoe which is considered part of "purchase price." Although some of the heavy equipment was purchased used, and would have a lower rate of depreciation, the equipment lost value being used. This depreciation was part of the costs of doing the work. A declining depreciation rate of 15 percent in 1989, 12 percent in 1990, and 10 percent in 1991 was used to arrive at the depreciation costs, which were approximately $8,500. The capital costs of building the dock were excluded; however, the taxes paid to Clay County for the past two years, $5,023, were included. The total developmental costs would be approximately $37,000 as of the end of 1991. Expenditures after adoption of the plan are not considered.

    
    

    CONCLUSIONS OF LAW

    
    

21. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action in accordance with Section 120.65(9), Florida Statutes, and Clay Count Ordinance 92-18, as amended by Clay Country Ordinances 92-22, 92-29, and 93-26.

    
    

22. This case involves equitable vested rights on the surface, but underneath this slippery legal doctrine lies the real issue of procedural due process and deprivation of property rights without due process. As the Respondent indicates in its proposed recommended order, the purpose of Article VIII of the Clay County Land Development Code defining equitable vested rights was "to ensure that existing rights to develop property . . . created by the Constitutions of the State of Florida and the United States are not infringed upon by application of the Plan[.]"

    
    

23. To this end, the plan codifies the case law recognizing equitable estoppel. Section 20.8-7 of Article VIII of the Code provides that the criteria for determining equitable vested rights are as follows:

    
    

    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.

       
       

24. The Moores purchased real property for the purpose of building their own home upon a portion of it, and selling the other portions of it to make money. Since 1988, they have made improvements to the property necessary to put two mobile homes upon the property, to build a barn, and to build a dock pursuant to the then existing laws. The most significant of these expenditures was construction of an access road built from the hard surface county road into

    the parcel. After becoming aware of the comprehensive plan, they purchased heavy equipment and increased their efforts to improve the existing road and drainage features on the property.

    
    

25. The Petitioners admit that they did not timely file a plat plan of their development and do not have lots of record. They seek to develop their property at a density of one single family residence per acre, rather than one single family residence per five acres pursuant to the equitable relief as provided by the County's plan quoted above.

    
    

26. Respondent argues that there must be a large expenditure of money to warrant application of the doctrine. The better view is to determine whether the change in position is "substantial" based upon a comparison of the original costs of acquisition and subsequent expenditures, and the financial burden upon the person(s) seeking relief. The Petitioners originally purchased the property for development, and have paid taxes upon the entire parcel since its purchase. The taxes are a cost of ownership and, therefore, properly included in the total development costs. The same is true of the survey costs. Although the original purchase price is not stated, the assessed value in 1992 of $96,921 is used as a measure of the relative value of the property compared with the development costs up to that year. In this case, the expenditure of approximately $37,000 for development up to 1992, most of which was for the road, was a substantial expenditure.

    
    

27. The Respondent argues that there must be actual knowledge by the government of the property owner's plans plus some affirmative act on the part of government to thwart those plans for equitable estoppel to apply. However, equitable vesting, as opposed to equitable estoppel, is defined by Respondent's ordinance which does not require knowledge on the part of the governmental entity. Further, prior to adoption of the plan, there was no requirement for recording a plat plan of the subdivision. Lastly, the Petitioners did obtain permits to place two mobile homes on the parcel and to construct a barn. The county had actual notice the owner's developmental activities. Equitable vesting only requires good faith reliance in a valid act of government resulting in a substantial change in position.

    
    

28. The Respondent correctly argues that Petitioners were not warranted in relying on the plan as adopted by ordinance and submitted because it issued an "Advisory" which stated the plan might change. However, the Petitioners were justified in reasonably relying upon the law as it had existed and as it was carried forward in the plan in constructing the road which provided access to the mobile homes and barn, and which was constructed to provide access to the lots as the Petitioners intended to develop on the parcel. They made a "substantial change in position" and "incurred such extensive obligations and expenses that it would be inequitable or unjust" to deny them the use of the road and require them to reposition it to comply with the existing density requirements. However, this does not warrant allowing the Petitioners to exceed the plan's density criteria of one single family residence per five acres. The expenditure on the road and drainage would be necessary for four lots or for seven.

    
    

29. The Respondent's argument that costs of roads and drainage improvements have not been "recognized" by the courts as substantial changes is specifically rejected. See Equity Resources, Inc., and Richard L. Pelham v. County of Leon, 19 Fla. L. Weekly 1953, in which the court specifically considered costs of road and drainage improvements.

30. Therefore, the Petitioners are entitled to equitable relief, but not that which they requested. They are not entitled to greater density; however, they are entitled to a variance in subdividing the 22 acre parcel into the four lots into which the parcel may be divided in such a manner that the existing road may serve as a boundary between the lots.

RECOMMENDATION

Based upon the consideration of the findings of facts and the conclusions of law, it is,

RECOMMENDED:

That the amended application for equitable vested rights be approved in part, and denied in part as follows:

That Petitioner be granted equitable relief to subdivide their 22-acre parcel into 4 lots each containing approximately 5 acres using the existing road which they constructed as a boundary between the lots, but that they not be permitted to exceed the plan's density requirements.

DONE and ENTERED this 10th day of January, 1995, in Tallahassee, Florida.

STEPHEN F. DEAN

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 10th day of January, 1995.

APPENDIX

The parties filed proposed findings of fact which were read and considered.

The following states which of those findings were adopted, and which were rejected and why:

Petitioner's

Findings Recommended Order

Paragraphs 1-4 Paragraphs 1,2,3,4,7

Paragraph 5,6 Paragraphs 6,5

Paragraph 7 Paragraph 8

Paragraph 8 It is the hearing officer's under-standing that the ordinances were adopted prior to submission to DCA, which could state objections to the county's ordinance. Mr. Moore was aware of the plan and its impact upon his property.

Paragraph 9 Paragraphs 11,12,14

Paragraph 10 Paragraphs 15,16

Paragraph 11 Paragraphs 17,18

Paragraph 12 Paragraph 13

Paragraph 13 Paragraphs 11,12

Respondent's

Findings Recommended Order

Paragraphs 1-3 Paragraph 1-4

Paragraphs 4-8 Subsumed in Paragraphs 5-10

Paragraphs 9-12 Subsumed in Paragraphs 11-14

Paragraph 13 Irrelevant.

Paragraph 14 Paragraphs 14,18 Paragraph 15 Discussed in Conclusions Paragraphs 16-19 Paragraphs 15-18

Paragraph 20 Paragraph 8

Paragraph 21 Subsumed in Paragraph 7

Paragraph 22 Paragraph 9

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.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT I. MOORE and )

KATHRYN F. MOORE, )

)

Petitioners, )

)

vs. ) CASE NO. 94-5525VR

) CLAY COUNTY BOARD OF ) COUNTY COMMISSIONERS, )

)

Respondent. )

)

FINAL ORDER

The order entered on January 10, 1995, by the undersigned is amended as follows at the request of the parties to correct a scrivener's error:

1. The order's caption is amended to "Final Order".

   
   

2. The "RECOMMENDED" on Page 11 is amended to "CONCLUSIONS".

   
   

3. The "RECOMMENDED" on Page 11 is amended to "ORDERED".

4. The last paragraph of the order on Page 13 is amended to read: NOTICE OF RIGHT TO JUDICIAL REVIEW

   A party who is adversely affected by this final order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate procedure. Such proceedings are commenced by filing one copy of a Notice of Appeal with the agency clerk of the Division of Administrative Hearings and a second copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the appellate district where the party resides. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed.

   
   

5. For appeal purposes this order is entered and is effective on the date below.

DONE and ENTERED this 7th day of July, 1995, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN, 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 7th day of July, 1995.

COPIES FURNISHED:

William Nussbaum, Esquire 1851 Executive Center Drive Suite 102

Jacksonville, FL 32207

Mark H. Scruby, Esquire Clay County Attorney Post Office Box 1366

Green Cove Springs, FL 32043

Patrick McGovern, Chairman Board of County Commissioners Clay County

Post Office Box 1366

Green Cove Springs, FL 32043

Lynn A. Weber, Planner Clay County Vested Rights Post Office Box 1366

Green Cove Springs, FL 32043

Docket for Case No: 94-005525VR

Orders for Case No: 94-005525VR