b

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHARLES L. PARHAM and ANITA M ) PARHAM/PARHAM PLEASURE OAKS, )

)

Petitioners, )

)

vs. ) CASE NO. 96-0814VR

)

CLAY COUNTY, )

)

Respondent. )

)

FINAL ORDER

The final hearing in this case was held before Larry J. Sartin, Hearing Officer, on March 19, 1996, in Green Cove Springs, Florida.

APPEARANCES

For Petitioners: Charles and Anita Parham, pro se

Post Office Box 1400

Keystone Heights, Florida 32666

For Respondent: Frances J. Moss

Assistant Clay County Attorney Post Office Box 1366

Green Cove Springs, Florida 32043 STATEMENT OF THE ISSUE

The issue in this case is whether Petitioners, Charles L. Parham and Anita

M. Parham, have 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, Florida should be issued by Clay County, notwithstanding the fact that development will not be in accordance with the requirements of the Clay County 2001 Comprehensive Plan.

PRELIMINARY STATEMENT

On or about January 29, 1996, 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 Charles Parham with the Clay County Department of Planning and Zoning. Documentation in support of the Application was also filed.

On February 12, 1996, Clay County filed the Application and supporting documentation with the Division of Administrative Hearings for assignment of the matter to a Hearing Officer.

A hearing was held on March 19, 1996. The hearing was conducted to give the Petitioners an opportunity to offer the Application and supporting documentation into evidence and to supplement the record with additional evidence. The hearing was also conducted 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. Petitioners testified on their own behalf. The Application and supporting documentation (Petitioners' Composite exhibit 1) were accepted into evidence. Petitioners' exhibits 2-5 were also accepted into evidence.

Respondent presented the testimony of Lynn Weber, Senior Planner. Respondent also offered 3 exhibits, which were accepted into evidence.

No transcript of the final hearing, which was tape recorded, was filed. By agreement of the parties proposed final orders were required to be filed on or before March 29, 1996. Both parties filed proposed orders. 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.

FINDINGS OF FACT

1. Purchase of the Subject Property.

   
   

   1. The property at issue in this proceeding consists of approximately fifty-two acres (hereinafter referred to as the "Subject Property").

      
      

   2. The Subject Property was acquired by Charles L. Parham in 1988 from Forest Hills, Inc.

      
      

   3. The Subject Property is located in a rural, undeveloped portion of southern Clay County (hereinafter referred to as the "County").

      
      

   4. The Subject Property was part of a larger tract of undeveloped, real property known as "Forest Hills." The southwestern corner of Forest Hills is bounded by State Road 100.

      
      

   5. At the time the Subject Property was purchased it was zoned Agriculture. This classification allowed use of the Subject Property for single-family residential development at a density of one unit per acre.

      
      

   6. The Subject Property was purchased by the Applicants for development as single-family sites which they intended to sell or rent and to use for their own residential purposes.

      
      

   7. Access to the Subject Property was obtained through easements (Forest Hills Road and Lone Pine Trail) from State Road 100. It is approximately one and three-quarters of a mile from State Road 100 to the Subject Property.

      
      

   8. At the time of purchase of the Subject Property by Mr. Parham, Mr. Parham was provided with a certified Boundary Survey map by Forest Hills, Inc. The Boundary Survey was certified by a land surveyor and was dated November 2, 1978.

   9. The Boundary Survey provided to Mr. Parham represented the Subject Property as consisting of forty-four tracts of approximately one acre each and four lots of approximately two acres each.

      
      

   10. Neither the Subject Property nor Forest Hills has ever been platted. That is, there is no plat of record in the Official Records of Clay County, Florida.

       
       

   11. The Applicants made the erroneous assumption that the Subject Property was platted. They made this assumption because of the Boundary Survey they were provided by Forest Hills, Inc., which depicted the division of the Subject Property into lots.

       
       

   12. The Applicants also believed that the Subject Property was platted because no one at County offices where they showed the Boundary Map told them differently. The evidence failed to prove, however, that any employee of the County told them that the Subject Property was in fact platted. The evidence also failed to prove that the County was responsible for the assumption of the Parhams that the Subject Property was platted.

       
       

2. Development Activities on the Subject Property.

   
   

   1. The Applicants cleared and graded roads through the easements to the Subject Property. Applicants also maintained two other roads located in Forest Hills: Cactus Hill Road and Lone Pine Trail.

      
      

   2. The Applicants also cleared and graded two interior roads which dissect Forest Hills. Applicants named the interior roads "Viking Street" and "Valhalla Street".

      
      

   3. The clearing and grading of roads was performed by Applicants in order to gain access to the Subject Property for themselves and potential renters.

      
      

   4. The Applicants also cleared part of the Subject Property for their own

      use.

      
      

   5. Mr. Parham purchased a bulldozer prior to the purchase of the Subject

      Property. The bulldozer was purchased for use in developing the Subject Property for use by the Applicants as a residence, for use in developing the Subject Property for rental and for use in Mr. Parham's business.

      
      

   6. All labor in developing the roads to and on the Subject Property has been provided by Applicants. Expenses for maintenance, repair and use of the bulldozer were incurred by Applicants.

      
      

   7. Applicants purchased fill dirt and clay which was used in clearing and grading access and interior roads.

      
      

   8. Prior to the enactment of the Clay County 2001 Comprehensive Plan (hereinafter referred to as the "Plan"), Applicants sold two two-acre tracts to Inger Robertson and to Julian Wood. Although the deeds on the sale of these lots mentioned the tract numbers, they also described the property sold by metes and bounds. The property would not have been described in this manner if the property were part of a platted subdivision. Applicants were left with forty- eight tracts.

   9. Inger Robertson applied for and received a mobile home permit for her two-acre parcel in 1990.

      
      

   10. Applicants also applied for and received mobile home permits for two one-acre tracts. One mobile home was used as their residence.

       
       

   11. The three mobile home permits issued for part of the Subject Property were issued prior to enactment of the Plan. They were also issued consistent with then existing law allowing single family units on one acre parcels.

       
       

3. Petitioners' Alleged Detrimental Reliance.

   
   

   1. At the time the Applicants obtained their two permits, the Boundary Survey showing the lot division of the Subject Property was shown to County staff and the Applicants' plans with regard to development of the Subject Property were disclosed.

      
      

   2. At the time of the acquisition of the permits from the County, the Applicants' intended use of, and development plans for, the Subject Property were consistent with County laws. No approval or other permits were required by County law in order for the Applicants to utilize and develope the Subject Property in the manner they intended. They were only required to comply with existing zoning requirements, which restricted residential use of property to one residence per acre. This the Applicants did with regard to their residence and two other tracts. They failed to obtain permits, however, for the other tracts on the Subject Property.

      
      

   3. The evidence failed to prove that the Applicants' were informed by the County that their proposed use and development of the Subject Property was "approved" or otherwise "authorized." The Applicants have not asserted that the County took any affirmative action which led them to believe that their planned development of the Subject Property was "approved". Instead, the Applicants have asserted that the County was under an obligation to tell them that the Subject Property was not, in fact, platted, and they were required to take certain actions to insure that they could develop the Subject Property as planned. The evidence failed to prove that the County was under any such obligation.

      
      

   4. The evidence also failed to prove that the Applicants asked County staff what steps they were required to take in order to insure the immediate development of the Subject Property.

      
      

   5. In 1988, the Applicants informed the County of the naming of the two roads created on the Subject Property and were given street addresses for each of the tracts identified on the Boundary Survey. The Boundary Survey was left with County staff to make a copy of for the County's records. Each of the tracts was identified for the County's 911 emergency telephone service. The assignment of names to the interior streets and street numbers to the lots was consistent with then existing law. These County actions are not the type of actions which would justify a conclusion that density limitations with regard to the Subject Property would not change.

      
      

4. Rights That Allegedly Will Be Destroyed.

1. On January 23, 1992, the County's Board of County Commissioners adopted the Plan.

2. Included in the Plan is a Future Land Use Element, including Future Land Use Maps (hereinafter referred to as the "FLUM"). The Subject Property (and all of Forest Hills) is located in an area classified on the FLUM for "Agriculture/Residential Land Use". This designation allows the use of the Subject Property for single-family residential development. Density, however, is limited to one unit per ten acres.

   
   

3. As a result of the Plan and the designated land use classification of the Subject Property, the Subject Property may not be developed as one-acre single-family residences. The result of this restricted land use, the number of individual, developable lots on the Subject Property has been reduced. This reduction in developable lots adversely impacts financing of the Subject Property.

   
   

4. The Applicants learned of the adoption of the Plan and its impact on the Subject Property in November of 1992 when they attempted to obtain additional permits for the Subject Property.

   
   

   CONCLUSIONS OF LAW

   
   

   1. Jurisdiction.

      
      

5. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.65(8), Florida Statutes (1995), 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.

      
      

6. Pursuant to Section 163.3167, Florida Statutes, the County was required to prepare a comprehensive plan governing the use and development of land located within the County. In compliance with Section 163.3167, Florida Statutes, the County adopted the Plan by Ordinance 92-03 on January 23, 1992.

   
   

7. In order to insure that existing rights to develop property of 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, the County promulgated Article VIII of the Clay County Land Development Code (hereinafter referred to as the "Code"). The intent of the County in Adopting Article VIII of the Code is included in Section 20.8-3:

   
   

   (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 requirement of the Clay County 2001 Comprehensive Plan or land development regulations.

   
   

8. There are two 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.

9. 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.

   
   

10. In the case of an application for equitable vesting, no determination on the merits is made by the 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.

    
    

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

    
    

12. 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.

       
       

13. 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.

          
          

14. 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 (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.

    
    

    1. The Applicants' Claim.

    
    

15. In this case, the Applicants are seeking a determination that the Subject Property is subject to vesting by virtue of "equitable vesting". Applicants have not contended that the Subject Property is subject to "statutory vested rights".

    
    

16. Although it is not totally clear what act or omission of the County the Applicants believe supports their claim for equitable vesting, it appears that the Applicants are relying on the County's failure to explain to them what steps they were required to take in order to insure that they could continue to develop the Subject Property as they intended when they purchased the Subject Property.

    
    

17. Applicants also believe that the County should have informed them that the Subject Property was not in fact platted.

    
    

18. Applicants also may be relying on the issuance of permits for some lots, the naming of streets and/or the identification of lots with street addresses.

    
    

19. None of the acts or omissions of the County raised in this proceedings support a finding that the first two criteria for equitable vesting have been met. There simply was no act or omission of the County upon which the Applicants can be concluded to have reasonably relied to believe that the law concerning development of the Subject Property would never change.

    
    

20. Everything that the Applicants did with regard to the Subject Property that the County was aware of was consistent with then existing County law. It is not reasonable for any person to expect that the existing zoning and land use regulations applicable to real property will not change. See City of Gainesville v. Cone, 365 So.2d 737 (Fla. 1st DCA 1978).

    
    

21. There is also no obligation on the part of the County, absent a specific request from the Applicants, to explain to the Applicants that the Subject Property was not platted or to explain to them what steps they were required to take in order to avoid the application of changing zoning or land use regulations.

    
    

22. The Applicants' impressions concerning the state of the Subject Property are primarily a result of the Boundary Survey provided to them by Forest Hills, Inc., and their lack of understanding as to what constitutes "platting". The County did not cause these impressions and was under no obligation to dispel impressions that the Applicants failed to disclose or ask about.

23. The evidence failed to prove that anything the County did with regard to the Subject Property was inconsistent with then existing laws governing development in the County. Therefore, the County cannot be said to have made any representation, through an act or omission, that could be relied upon by the Applicants in good faith to support any belief that they could proceed with development of the Subject Property without regard to any future changes in the law.

    
    

24. The changes in position or obligations and expenses that Applicants assert were incurred in reliance upon the County's actions consist of the time, expense and labor of grading and clearing roads to and on the Subject Property, the purchase of a bulldozer and costs associated with the purchase and ownership of the Subject Property.

    
    

25. Costs associated with the purchase of the Subject Property, including debt financing, insurance and real estate taxes, are not to be considered in determining whether the third criterion has been met. See City of Gainesville

    v. Cone, 365 So.2d737 (Fla. 1st DCA 1978); and Town of Largo v. Imperial Homes Corporation, 309 So.2d 571 (Fla. 2d DCA 1975).

    
    

26. The expenses associated with grading and clearing roads to and on the Subject Property do, however, constitute the types of obligations and expenses that could have supported a finding that the third criterion had been met if the first two criteria had been proved. 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). Although the exact amount of costs associated with these expenditures was not proved and the costs associated with the bulldozer cannot be totally attributable to the Subject Property, the evidence supports a finding that Applicants did incur sufficient obligations and expenses to conclude that the third criterion has been met if they had been incurred in reliance on some County act or omission.

    
    

27. Based upon the foregoing, it is concluded that the Applicants failed to prove that the elements of equitable vesting apply to the Subject Property.

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 January 29, 1996, by Charles L. Parham is DENIED.

DONE and ORDERED this 22nd day of April, 1996, 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 22nd day of April, 1996.

APPENDIX TO FINAL ORDER, CASE NO. 96-0814VR

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.

Petitioners' Proposed Findings of Fact

1. Accepted in 1-2 and 8.

2. Accepted in 5.

3. See 17.

4. Accepted in 13, 15 and hereby accepted.

5. The first sentence is accepted in 24. The remainder of the proposed finding is not supported by the weight of the evidence.

6. Accepted in 14.

7. Accepted in 14 and hereby accepted.

8. Accepted in 13. The last sentence is not relevant.

9. Accepted in 20 and hereby accepted.

10. Hereby accepted.

11. Accepted in 32 and hereby accepted.

12. Not supported by the weight of the evidence and not relevant.

13. Not supported by the weight of the evidence and statement of law.

14. Although correct, the Code does not authorize a partial granting of equitable vesting when it is not proved to apply.

15-18 Not relevant.

The County's Proposed Findings of Fact

1. Accepted in 1-4 and 7-9.

2. Accepted in 10, 12 and hereby accepted.

3. Accepted in 8 and 10-12.

4. Accepted in 5-6, 11-12 and hereby accepted.

5. Accepted in 6.

6. Accepted in 12-19.

7. Accepted in 20-23.

8. Accepted in 23-28.

9. Accepted in 29-30.

10. Accepted in 20-31 and hereby accepted.

11. Accepted in 32. 12-13 Hereby accepted.

COPIES FURNISHED:

Charles L. Parham Anita M. Parham

Post Office Box 1400

Keystone Heights, Florida 32666

Frances Moss

Assistant County Attorney Clay County

Post Office Box 1366

Green Cove Springs, Florida 32043

Susan Fraser, Director

Planning, Zoning and Code Enforcement 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: 96-000814VR

Orders for Case No: 96-000814VR