STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SWEETWATER, LTD., )

)

Petitioner, )

)

vs. ) Case No. 99-5134VR

)

ALACHUA COUNTY, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, a formal hearing was held in this case before Larry J. Sartin, an Administrative Law Judge of the Division of Administrative Hearings, in Gainesville, Florida, on

April 5 and 6, 2000.

APPEARANCES

For Petitioner: Jeffrey M. Braswell, Esquire

Scruggs & Carmichael, P.A. Post Office Box 23109 Gainesville, Florida 32602

For Respondent: David C. Schwartz

Assistant County Attorney Alachua County Attorney's Office Post Office Box 2877 Gainesville, Florida 32602-2877

STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner, Sweetwater, Ltd., has demonstrated that it is entitled to, pursuant to the Alachua County Vested Rights and Property Rights Protection

Ordinance, Ordinance Number 92-9, codified in Title 32, Chapter 323, Alachua County Code, a vested rights certificate to undertake development of a Planned Unit Development on certain real property owned by Petitioner, notwithstanding the fact that part of the development will be inconsistent with the Alachua County 1991-2011 Comprehensive Plan.

PRELIMINARY STATEMENT

On or about June 13, 1996, Petitioner filed a Notice of and Application for Statutory or Equitable Vested Rights Certification Pursuant to Alachua County Ordinance 92-9 and supporting documentation with the Growth Management Department of Respondent. On or about August 27, 1996, Respondent denied the Application.

On September 23, 1996, Petitioner filed a Notice of Appeal of Respondent's decision to deny the Application. Respondent referred the matter to the Division of Administrative Hearings on November 30, 1999, for assignment of an administrative law judge to conduct a formal administrative hearing on behalf of Respondent, Alachua County. The request was designated Case Number 99-5134VR and was assigned to the undersigned.

By agreement of the parties and the undersigned, the formal hearing was scheduled for April 5 and 6, 2000. At the hearing, Petitioner presented the testimony of Irwin Gars, Ed Culpepper, Robert Holton, Richard Tarbox, and Jerome Glassman. Six

exhibits offered by Petitioner were accepted into evidence. Respondent presented the testimony of Michael Drummond, Ann Ayers, and Rita Jamason. The deposition testimony of Mr. Gars, Mr. Holton, Mr. Tarbox, and Mr. Glassman was also presented by Respondent. Respondent also offered 18 exhibits. Respondent's Exhibit 1 consists of 60 tabs. All were accepted into evidence. Respondent's Exhibit 19 was identified but not offered.

A Transcript of the hearing was filed on May 10, 2000. Proposed orders were filed by the parties on June 6, 2000. Those Proposed Final Orders have been fully considered in entering this Final Order.

FINDINGS OF FACT

1. The Parties.

   
   

   1. Petitioner, Sweetwater, Ltd. (hereinafter referred to as "Sweetwater"), is a Florida limited partnership which owns certain real property located in Alachua County, Florida. Jerome Glassman is the General Partner and Trustee of Sweetwater.

   2. Respondent, Alachua County (hereinafter referred to as the "County"), is a political subdivision of the State of Florida. Among other things, the County is responsible for the regulation of the development of real property located within unincorporated areas of the County.

2. The Subject Property.

   
   

   1. The real property owned by Sweetwater that is the subject of this proceeding (hereinafter referred to as the "Property") consists of approximately 109.5 acres. See Respondent's Exhibit 7, pages 5 and 6, for a legal description of the Property.

   2. The Property is located at the intersection of State Road 331 and South East 16th Avenue. State Road 331 is also known as Williston Road. State Road 331, which runs essentially north-south, parallels the western boundary of the Property.

      The eastern terminus of South East 16th Avenue, which runs essentially east-west, is located at its intersection with State Road 331. If South East 16th Avenue continued easterly beyond its terminus with State Road 331, it would traverse through the Property.

   3. The Property is primarily in an undeveloped, natural state. It is bisected by Sweetwater Branch, a creek that flows into Paynes Prairie State Preserve, which is located to the south of the Property. Most of the Property is located to the east of Sweetwater Branch. As a consequence, most of the Property is inaccessible for development.

3. The Initial Planned Unit Development.

   
   

   1. In December of 1976 John Connell and Bill Myrick, the predecessor owners of the Property, filed a Planned Unit

      Development (hereinafter referred to as a "PUD") application with the County.

   2. The 1976 PUD application was approved (hereinafter referred to as the "1976 PUD") by the Board of County Commissioners of the County (hereinafter referred to as the "Board") on or about December 21, 1976. As part of the approval of the 1976 PUD, the Board rezoned approximately 125 acres of the Property from Agriculture to PUD. The following land uses were approved for the 125 acres in the 1976 PUD: multi-family, commercial, and industrial.

   3. At the time the 1976 PUD was approved, the County planned to extend South East 16th Avenue to the east of State Road 331 through the Property, continuing beyond the eastern boundary of the Property, and eventually turning north until it intersected with State Road 20 (hereinafter referred to as the "16th Avenue Extension"). This extension was to be used as a major route for traffic traveling between Gainesville, Florida, the largest city in the County, and eastern Alachua County.

   4. At the time the 1976 PUD was approved, financing of the 16th Avenue Extension had been included in a bond issue intended for use in funding a number of State road projects. Although it was anticipated that the bond issue would be sufficient to fund all the projects the bond issue was earmarked for, including the 16th Avenue Extension project, there was no guarantee under

      State law that all the projects would in fact be funded. Nor did the County make any representation to the contrary.

   5. On June 23, 1978, Ed Culpepper, the County engineer notified Richard Tarbox, the engineer and designer for Sweetwater, that it was anticipated that the 16th Avenue Extension would be completed. Mr. Culpepper informed Mr. Tarbox that he anticipated the completion of "the design work of the roadway from S[tate]R[oad]-331 to S[tate]R[oad]-20 along with all the necessary rights of way instruments." Mr. Tarbox had inquired about the 16th Avenue Extension because Sweetwater was in the process of acquiring the Property.

   6. Sweetwater purchased the Property in August 1978.

      
      

   7. The 1976 PUD was in effect in August 1978 when Sweetwater purchased the Property and Sweetwater was aware of the 16th Avenue Extension project.

   8. The 1976 PUD was to expire in December 1979.

      
      

      Sweetwater's intended development of the Property, however, depended upon the completion of the 16th Avenue Extension. It is apparent that until the 16th Avenue Extension was completed, Sweetwater had no intention of developing the Property.

      Although efforts between the County and the Florida Department of Transportation to move forward with the 16th Avenue Extension continued throughout 1979, the project had not been funded by the end of 1979. Therefore, Sweetwater requested a one-year

      extension of the expiration date of the 1976 PUD. The request was granted by the Board. The expiration date for the 1976 PUD was extended to December 1980.

   9. Efforts to move the 16th Avenue Extension project to completion continued into 1980. In an effort to move the road project forward, Sweetwater executed a Warranty Deed dated July 1, 1980, and recorded on July 3, 1980, conveying approximately

      11.78 acres of the 1976 PUD to the County for use in the construction of the 16th Avenue Extension. The evidence failed to prove that the County made any representation to Sweetwater about Sweetwater's right to develop the Property as a result of this conveyance.

   10. The 16th Avenue Extension was not completed in 1980.

       
       

       Therefore, a second one-year extension of the 1976 PUD was requested by Sweetwater in December 1980. The extension was approved by the Board. The expiration date for the 1976 PUD was extended to December 1981.

   11. By the summer of 1981 it was clear that, although the County still wanted to complete the 16th Avenue Extension, the County did not have the funds to do so. Nor did it appear that the County would be able to obtain the funds before the 1976 PUD expired in December 1981. Because of Sweetwater's desire to proceed with the development of the Property and in an effort to avoid the expiration of the 1976 PUD, Sweetwater explored with

       the County the possibility of building a portion of the 16th Avenue Extension planned for the Property. Sweetwater offered to construct the portion of the 16th Avenue Extension that would traverse through the Property. By building the portion of the 16th Avenue Extension through the Property for the County, Sweetwater would be able to proceed with development of the Property pursuant to the 1976 PUD. This effort was not successful, however, because the County would not agree to reimburse Sweetwater for the construction of any part of the 16th Avenue Extension and Sweetwater was not willing to incur the entire costs of building the 16th Avenue Extension through the Property.

   12. In December 1981 Sweetwater requested a third one-year extension of the 1976 PUD. The third extension was requested because Sweetwater still did not want to proceed with development of the Property until the 16th Avenue Extension was completed. The Board denied this request for extension on December 15, 1981. As a consequence, the 1976 PUD subsequently expired and the zoning for the Property reverted to "agriculture."

   13. The evidence failed to prove that Sweetwater made any substantial change in position or incurred any extensive obligations and expenses in reasonably reliance upon any valid,

       unexpired act or omission of the County prior to the expiration of the 1976 PUD.

4. The Last PUD.

   
   

   1. After the 1976 PUD expired, Sweetwater initially attempted to obtain approval for zoning changes for the Property which would allow it to development the Property. When these efforts failed, Sweetwater applied to rezone the Property as a PUD. Sweetwater's application was filed in April 1982. On May 18, 1982, the County approved Sweetwater PUD ZOM-18-82 (hereinafter referred to as the "1982 PUD"). The following land uses were approved as part of the 1982 PUD: 803 multi-family residential units on 63.75 acres, 3 acres of office, 2 acres of commercial, 5.5 acres for recreation, and 24.05 acres for open space and detention areas.

5. The County's Initial Representations Concerning the 1982 PUD.

   
   

   1. At the time the 1982 PUD was approved, Section 8.3g of County Ordinance 80-3 provided the following time limitations on

      PUDs:

      
      

      Planned Unit Development Time Limitations: If substantial construction, as determined by the Zoning Administrator, has not begun within two (2) years after approval of the Planned Unit Development under subsection 8.3a of these Regulations, the approval of the Planned Unit Development will lapse.

      Thirty (30) days prior to any lapse date, the Zoning Administrator shall notify the County Commission and the developer of such

      date. The County Commission may extend the period for beginning construction at the request of the owner. If the Planned Unit Development lapses under this provision, the Zoning Administrator shall cause the Planned Unit Development district to be removed from the official Zoning Map; mail a notice by registered mail of the revocation to the owner; and reinstate the zoning district which was in effect prior to the approval of the Planned Unit Development.

      
      

      Pursuant to this provision, the 1982 PUD was scheduled to expire May 18, 1984, unless Sweetwater began "substantial construction, as determined by the Zoning Administrator," of the approved development of the Property before the expiration date.

   2. After obtaining approval of the 1982 PUD, Mr. Tarbox approached the County to determine some way of "locking in" the 1982 PUD before it expired on May 18, 1984. Sweetwater still had no intention of developing the Property until the 16th Avenue Extension was completed through the Property and, at the time the 1982 PUD was approved efforts to move forward on the 16th Avenue Extension did not look promising. If the 1982 PUD could somehow be vested, then Sweetwater would not have to worry about the 1982 PUD expiring before the 16th Avenue Extension was completed.

   3. Mr. Tarbox discussed the matter with Robert Holton, Director of the County's Department of Codes Enforcement. As a result of their conversations, Mr. Holton informed Mr. Tarbox

      that Sweetwater could prevent the expiration of the 1982 PUD and meet the requirement of Section 8.3g of Ordinance 80-3 that "substantial construction" begin within two years of the approval of the 1982 PUD by obtaining approval from the Board of a final site plan for a phase of the 1982 PUD.

   4. In particular, Mr. Holton, who had the responsibility for interpreting and applying Section 8.3g of Ordinance 80-3 at all times relevant to this matter, told Mr. Tarbox that the construction of an a portion of the 16th Avenue Extension by Sweetwater extending from State Road 331 approximately 400 feet into the Property would constitute a phase (hereinafter referred to as "Phase 1") of the 1982 PUD. See Petitioner's Exhibit 1-42

      and 43. Mr. Holton also informed Mr. Tarbox that all that Sweetwater needed to do in order to meet the requirements of Section 8.3g of Ordinance 80-3 would be to obtain approval from the Board of a final site plan for Phase 1. Consistent with the policy of the County at the time, no formal agreement setting out Mr. Holton's representations on behalf of the County was entered into.

   5. By letter dated May 26, 1983, Mr. Holton confirmed to Mr. Tarbox his earlier representation that all that was required to lock-in the 1982 PUD was to obtain final site plan approval:

      This Planned Unit Development will remain in effect provided a final development plan is approved by May 18, 1984.

      
      

      See Petitioner's Exhibit 1-40. 1/

      
      

   6. Mr. Holton's representations to Sweetwater were consistent with the policy of the County at the time of treating approval of a final site plan as "substantial construction" even if no actual construction had begun. Even though this policy and Mr. Holton's representations to Mr. Tarbox are inconsistent with the clear language of Section 8.3g of Ordinance 80-3, Sweetwater reasonably relied upon Mr. Holton's representation to its detriment.

6. Sweetwater's Detrimental Reliance Upon Mr. Holton's Representations; Further Representations of the County Concerning the 1982 PUD; the County's Omissions; and Sweetwater's Continued Reliance Upon the County's Representations and Omissions

   
   

   1. In reliance upon Mr. Holton's representations concerning what Sweetwater needed to do to avoid the expiration of the 1982 PUD, Sweetwater proceeded to obtain funds from its limited partners to fund the completion of Phase 1. Petitioner's Exhibit 1-41.

   2. On February 23, 1984, Sweetwater filed an application for final site plan review for Phase 1. Mr. Holton noted on the application: "Road Const. as 1st phase of Sweetwater P.U.D.", followed by his initials. He also noted on the application: "considered to be substantial const[ruction] as per zoning

      reg[ulation]s in effect at the time of approval on 12/4/84." This notation was also followed by Mr. Holton's initials.

   3. On March 1, 1984, the County Development Review Committee approved the application for final site plan review for Phase 1 and recommended its approval by the Board.

   4. On March 6, 1984, the Board approved the final site plan for Phase 1.

   5. On March 20, 1984, the County Public Works Department issued a Construction Permit for Phase 1.

   6. Following issuance of the construction permit, Sweetwater sought bids for the completion of Phase 1.

   7. The date the 1982 PUD was originally to expire, May 18, 1984, passed while Sweetwater was seeking bids for the completion of Phase 1.

   8. No notice was sent to Sweetwater at least a month prior to May 18, 1984, informing Sweetwater that the 1982 PUD was about to expire as required in Section 8.3g of Ordinance 80-

   1. Nor did the County "mail a notice by registered mail of the revocation to . . ." Sweetwater after May 18, 1984, as required in Section 8.3g of Ordinance 80-3.

      1. In continued reliance upon Mr. Holton's representations on behalf of the County, the processing and approval of Sweetwater's application for final site plan approval of Phase 1 by the County Development Review Committee,

         the Board, and the County Public Works Department, and the County's failure to inform Sweetwater that the 1982 PUD was about to expire and had expired as required by Section 8.3g of Ordinance 80-3 (hereinafter referred to as the "County's Representations and Omissions"), Sweetwater entered into a contract for the construction of Phase 1 on July 18, 1984.

      2. In continued reliance upon the County's Representations and Omissions, construction of Phase 1 actually commenced in August 1984 and continued to completion thereafter.

      3. On February 15, 1985, the County approved the 400-foot road extension and accepted it for maintenance.

      4. Sweetwater expended almost $90,000.00 for construction of Phase 1. While the size of the road extension is small in relation to the entire area of the Property and the amount expended was small in relation to the total value of the Property, the amount expended by Sweetwater in reliance upon the County's Representations and Omissions to complete Phase 1 is a substantial amount of money.

      5. Other actions taken by Sweetwater, such as deeding right-of-way for the 16th Avenue Extension through the Property and the sale of 300 acres of property located adjacent to the Property to the State of Florida, which took place prior to the County's Representations and Omissions concerning Phase 1 of the 1982 PUD, were not made in reliance upon any representation from

         the County with regard to Sweetwater's rights to development of the Property consistent with the 1982 PUD.

7. The County's Continuing Representations to Sweetwater.

   
   

   1. By letter dated May 28, 1985, more than a year after the 1982 PUD was originally to expire, Benny Beckham, a Zoning Codes Supervisor in the County's Department of Codes Enforcement, informed Sweetwater that "on August 1, 1985, the Zoning Classification of [the 1982 PUD] will lapse unless a final development plan has been approved by the Alachua County Board of County Commissioners prior to this date." The evidence failed to prove why Mr. Beckham mailed this letter or why he concluded that the 1982 PUD would expire on August 1, 1985.

   2. When Sweetwater officials informed Mr. Holton of Mr.

      
      

      Beckham's May 28, 1995, letter, Mr. Holton wrote to Sweetwater, on or about July 1, 1985, indicating in effect that Mr.

      Beckham's letter was incorrect:

      
      

      The Board of County Commissioners approved the construction plans for the extension of South East 16th Avenue into the Sweetwater

      P.U.D. on March 6, 1984.

      
      

      The above action and the subsequent construction of approximately 400 feet of roadway constituted substantial construction. The construction of the roadway was considered the first phase of the Sweetwater Planned Unit Development.

      As a result of the above activity the August 1, 1985 [letter from Mr. Beckham] 2/2 will have no effect on your development.

      Petitioner's Exhibit 1-56.

      
      

   3. Mr. Holton's July 1, 1985, letter further confirms the County's Representations and Omissions concerning the 1982 PUD.

8. The Impact of the County's 1991 Comprehensive Plan.

1. With the adoption of the Alachua County 1991-2011 Comprehensive Plan (hereinafter referred to as the "Plan"), the land use designation for the Property was changed to Preservation/Conservation. 3/

2. The Preservation/Conservation land use designation under the Plan allows one residential unit per ten acres.

3. Development of the Property under the Plan, with or without an amendment of the land use designation of the Property to Estate Residential, would be substantially more restrictive than development of the Property pursuant to the 1982 PUD.

4. If Sweetwater is not allowed to develop the Property consistent with the 1982 PUD and must comply with the Plan's land use designation, Sweetwater will suffer a significant loss in value of the Property.

   1. State Wetlands Regulation.

      
      

5. Since the approval of the 1982 PUD, the State has adopted significantly more restrictive statutes and rules governing development of property with wetlands. Development of the Property, even pursuant to the 1982 PUD, will have to substantially comply with those restrictions.

6. The actual application of State wetlands' statutes and rules to the Property and the impact thereof will not be determined until site plan review for the Property and is, therefore, highly speculative as of the date of the hearing of this case. Therefore, the speculative impacts on development of the Property as a result of changes in state statutes and rules governing wetlands are not relevant in determining whether Sweetwater is entitled to a vested rights certificate that would allow it to rely upon the 1982 PUD.

   1. Conclusion.

      
      

7. The County, by its acts and omissions, led Sweetwater to believe that it had received a final development order in the form of a final development plan approved and unexpired as of October 2, 1991, for the 1982 PUD. The County, by its acts and omissions, also led Sweetwater to believe that the construction of Phase 1 was construction pursuant to a final development order that started before the earlier of the expiration of the final development order or October 2, 1992. Sweetwater did not, however, in fact receive such a final development order for the Property. The final development order was limited to development on the County's right-of-way and not the Property. Sweetwater also did not start construction pursuant to such final development order on the Property, but only on the County's right-of-way.

8. Additionally, to the extent that Sweetwater actually received a final development order, it only applied to Phase 1 and not to any other phase or phases of development of the Property.

9. Sweetwater is not, therefore, entitled to a vested rights certificate pursuant to statutory vesting.

10. The County did make the County's Representations and Omissions and those Representations and Omissions were relied upon in good faith by Sweetwater when it constructed Phase 1. In addition, Sweetwater did the following in reliance upon the County's Representations and Omissions:

    1. Sweetwater took no further action to ensure that the 1982 PUD did not lapse on May 18, 1984, pursuant to Section 8.3g of County Ordinance 80-3;

    2. Sweetwater continued to assume that the 1982 PUD remained in force; and

    3. Sweetwater took no further action to either develop the Property prior to the effective date of the Plan or to avoid any adverse impact on its ability to develop the Property as a result of the adoption of the Plan.

11. In reliance upon the County's Representations and Omissions, Sweetwater incurred expenditures of approximately

    $90,000.00 and failed to take any action to avoid negative impacts of the Plan on its ability to develop the Property. As

    a result, it would be highly inequitable and unjust to destroy Sweetwater's rights to develop the Property consistent with the 1982 PUD.

12. Sweetwater failed to prove any vested rights concerning the completion of the 16th Avenue Extension.

    1. Sweetwater's Application for Vested Rights Certificate.

    
    

13. On June 13, 1996, more than 14 years after it obtained the 1982 PUD, Sweetwater filed a Notice of and Application for Statutory or Equitable Vested Rights Certification Pursuant to Alachua County Ordinance 92-9, along with supporting documentation (hereinafter referred to as the "Application"), with the Growth Management Department of the County.

14. Sweetwater requested a vested rights certificate based upon statutory and/or equitable vesting for the Property in the Application.

15. On August 27, 1996, the County denied the Application.

    
    

16. On September 23, 1996, Sweetwater filed a Notice of Appeal of the County's decision to deny the Application.

17. On November 30, 1999, the County filed the request for hearing with the Division of Administrative Hearings (hereinafter referred to as the "Division"), for assignment to an administrative law judge to conduct a formal administrative hearing on behalf of the County.

    CONCLUSIONS OF LAW

    
    

    1. Jurisdiction.

       
       

18. The Division has jurisdiction of the parties to, and the subject matter of, this proceeding. Section 120.65(7), Florida Statutes, and Sections 323.07(4)b and 323.08 of the Alachua County Vested Rights and Property Rights Protection Ordinance, Ordinance Number 92-9, codified in Title 32, Chapter 323, Alachua County Code (hereinafter referred to as the "Code").

    1. General Requirements for Vesting in the Code.

    
    

19. Pursuant to Section 163.3167, Florida Statutes, the County was required to prepare a comprehensive plan governing the use and development of land located in the County. In compliance with Section 163.3167, Florida Statutes, the County adopted the Plan by Ordinance 91-17 on October 2, 1991.

20. In order to ensure that existing rights to develop real property of County property owners created by the Constitutions of the State of Florida and the United States were not infringed upon by application of the Plan, the County adopted Section 323.02 of the Code. The intent of the County in adopting Section 323.02 of the Code is included in Section 323.03:

    It is the intent of this chapter to implement policy 11.2.2(a) through (e) of the comprehensive plan and to provide for

    administrative procedures to ensure that nothing in the comprehensive plan or new land development regulations to implement the plan:

    
    

    1. Limits or modifies the rights of any person to complete any development that has been authorized as a development or regional impact pursuant to F.S. ch 380 or the rights of any person who has been issued a final development order and development has commenced and is continuing in good faith; or

       
       

    2. Shall be construed as affecting validly existing vested rights that have been affirmatively demonstrated to meet the legal requirements of vested rights.

       
       

21. There are two general types of circumstances pursuant to which vested rights to develop property may be found under the Code: (1) "statutory vested rights" pursuant to Section

    323.05 of the Code; and (2) "equitable vested rights" pursuant to Section 323.06 of the Code.

22. If a property owner believes that he or she has a statutory vested right or an equitable vested right to develop his or her property, the property owner may file an application with the Director of the County's Department of Growth Management (hereinafter referred to as the "Director").

23. If an applicant is aggrieved by the Director's decision, the applicant may appeal the decision in writing no later than 30 days after the decision is rendered. The appeal

    is to be heard by a hearing officer in conformance with Section

    
    

    323.08 of the Code. Section 323.07(4)b of the Code.

    
    

24. Pursuant to a contract between the Division and the County, the Division has agreed to provide the services of its administrative law judges to conduct hearings to consider appeals of the Director's decision on applications for vesting.

25. Section 323.08 of the Code provides the manner in which the hearing is to be conducted. The parties agreed to waive some of those requirements in this proceeding. The proceeding was otherwise conducted in conformity with Section

    323.08 of the Code.

    
    

26. An application is to be granted if the applicant demonstrates by a "preponderance of the evidence" that he or she is entitled to the certificate sought. Section 323.08(4) of the Code. Documentation of vested rights or governmental authorization must be clear, complete, and specific. Harbor Course Club, Inc. v. Department of Community Affairs, 510 So. 2d 915, 918 (Fla. 3d DCA 1987); and State v. Oyster Bay Estates, Inc., 384 So. 2d 891 (Fla. 1st DCA 1980).

    1. Sweetwater's Application.

       
       

27. In this case, Sweetwater has filed an application for a certificate of statutory and equitable vested rights to develop the Property consistent with the 1982 PUD. Although the Application was not filed until more than 14 years after it

    obtained the 1982 PUD, the Application is not barred for untimeliness pursuant to the Code.

    1. Statutory Vesting.

       
       

28. Section 323.05 of the Code sets forth the circumstances under which an applicant may be entitled to statutory vesting. In pertinent part, Section 323.05(1) of the Code provides that an applicant will be deemed to have statutory vested rights under the following pertinent circumstances:

    . . . .

    
    

    b. A development or approved phase of a development, other that a development meeting the requirements of paragraph a of subsection (1) of this section, that otherwise complies with and is allowed to proceed under all laws, ordinances and regulations other than provisions of the comprehensive plan and the new land development regulations adopted to implement the comprehensive plan with which it may be inconsistent, shall be deemed to have been issued a final local development order and to have commenced development and to be continuing in good faith such that it is covered by statutory vesting if it meets criteria under this subparagraph 1, 2, 3, or

    4 of this paragraph:

    
    

    . . . .

    
    

    1. Planned developments. Any planned development or phase thereof for which:

       
       

       1. A final development order in the form of a final development plan was approved and unexpired as of October 2, 1992; and

       2. Construction pursuant to such final development order has started or is started before its expiration or October 2, 1992, whichever is earlier.

          
          

    2. Other Developments. Any other development or phase for which

       
       

       1. A final development order in the form of a site plan or final development plan was approved as of October 2, 1991, and

          
          

       2. Construction pursuant to such final development order has stated or is started before its expiration or October 2, 1992 whichever is earlier

    
    

    In all cases, where a final development order has been approved for only a phase of a larger development order, statutory vesting applies only to the phase or phases that have received final approval and for which construction has commenced in accordance with the criteria in this paragraph.

    
    

29. The evidence in this case failed to prove that Sweetwater has statutory vested rights to develop the Property pursuant to the 1982 PUD under section (4) above. Because Sweetwater is attempting to obtain a vested rights certificate for the 1982 PUD, Sweetwater must comply with section (3) in order to be entitled to statutory vesting. Section (1)(building permits) and Section (2)(subdivisions) do not apply. Nor does Section (4)(other developments), because it only applies to developments "other" than those described in Sections (1), (2),

    and (3). Because Section (3) applies to this matter, Section

    
    

    (4) does not.

    
    

30. The evidence failed to prove that Sweetwater has statutory vested rights to develop the Property pursuant to the 1982 PUD under Section (3) above. First, despite the County's Representations and Omissions, Sweetwater did not actually receive approval of a final development plan for development of the Property itself. What Sweetwater sought and received was approval of a final development plan to complete Phase 1, which consisted solely of the development of right-of-way on the Property owned by the County and not the Property itself. Nor did any construction actually occur on the Property; it occurred on the County's right-of-way. For this reason alone, Sweetwater has failed to prove that it has statutory vested rights to develop the Property pursuant to the 1982 PUD.

31. Mr. Holton's actions support a finding that Sweetwater was justified in assuming that the 1982 PUD would not expire if it completed Phase 1. His actions do not, however, justify a finding that Sweetwater actually received final development approval for the Property in its entirety as those terms are used in the Code.

32. Secondly, even if Sweetwater had actually received a final development plan for the an actual phase of the Property's development, Section 323.05(1) of the Code specifically provides

    that statutory vesting only applies to the phase or phases that have received final approval and for which construction thereof has commenced. In this case, only Phase 1 received approval and the only construction that commenced was limited to Phase 1.

    Therefore, any statutory vested rights Sweetwater could have been entitled to would be limited to Phase 1.

33. Based upon the foregoing, it is concluded that Sweetwater has failed to prove that it is entitled to statutory vested rights for any portion of the Property.

    1. Equitable Vesting.

       
       

34. Section 323.06 of the Code governs the determination of whether an applicant is entitled to a vested rights certificate due to the existence of equitable vesting rights. The criteria for determining whether property is equitably vested are as follows:

    1. Developments meeting the following requirements shall be entitled to an equitable vested rights certificate: those developments for which an eligible applicant for an equitable vested rights certificate:

       
       

       1. Has relied in good faith;

          
          

       2. Upon some 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 highly inequitable and unjust to destroy the rights to develop or continue to develop the property.

       
       

    2. In assessing whether the requirements for equitable vested rights identified in subsection (1) have been met, the following factors and guidelines shall be considered:

       
       

       1. Those factors and circumstance that have been identified in Florida case law addressing equitable estoppel or vested rights.

          
          

       2. Whether the obligations and expenses incurred cannot be substantially utilized in a development that is consistent with the comprehensive plan or new land development regulations adopted to implement the comprehensive plan.

          
          

       3. The following shall not be considered as a basis for equitable vested rights in and of themselves:

          
          

          1. Expenditures for legal and other professional services that are not related to the design or construction of improvements.

             
             

          2. Preexisting zoning contrary to the comprehensive plan.

             
             

          3. Expenditures related to a rezoning action.

             
             

          4. Taxes paid.

             
             

          5. Expenditures for initial acquisition of the land not made in good faith reliance upon the act or omission of the government that is the basis for equitable vested rights.

             
             

35. The factors which supporting a finding of equitable vesting are the same as those which the courts have found support the doctrine of equitable estoppel. The doctrine of

    equitable estoppel has been described in Florida case law 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, as required by Section 323.06(2)a of the Code, by the case law applying the doctrine of equitable estoppel.

36. Sweetwater has asserted that all of the elements of equitable estoppel and, therefore, equitable vesting as defined in the Code, have been proved by it in this case.

    1. Equitable Vesting Related to the 16th Avenue Extension.

       
       

37. Sweetwater has first argued that the County's actions concerning the 16th Avenue Extension support its request for equitable vesting. This argument is rejected for several reasons.

38. First, the evidence failed to prove that the County's actions and representations concerning the 16th Avenue Extension

    constitute the types of acts or omissions of government which may give rise to equitable estoppel. At no time did the County represent that any action that Sweetwater took would entitle it to develop the Property in any particular manner. Sweetwater did not, therefore, take any action in good faith reliance thereon.

39. The actions of the County and Sweetwater were no more than efforts to achieve a common goal: the completion of the 16th Avenue Extension. Sweetwater's whole development depended upon its completion. Sweetwater, therefore, agreed to take certain actions to accommodate the County's efforts to achieve the same goal. Sweetwater gave the County right-of-way to be used for part of the 16th Avenue Extension not because of any representation from the County that the County would consider its rights to develop the Property vested if it did so, but because Sweetwater wanted to do whatever it could to assist the County in achieving a common goal.

40. Finally, any reliance upon actions of the County concerning the 16th Avenue Extension was not reasonable or made in "good faith." The County refused to extend the 1976 PUD as of December 1981 despite the desire of the County to complete the Extension. From this action, it should have been apparent to Sweetwater that the common goal of the County and Sweetwater to complete the Extension was not sufficient for the County to

    allow Sweetwater to development the Property in any particular manner.

    1. Equitable Vesting Related to the 1982 PUD.

    
    

41. Sweetwater has also argued that the County's Representations and Omissions concerning the 1982 PUD support its request for equitable vesting. This argument is accepted.

42. Mr. Holton's representations to Sweetwater constitute the type of government act which may give rise to equitable estoppel. Mr. Holton specifically told Sweetwater that the 1982 PUD would not expire if Sweetwater completed what Mr. Holton suggested Sweetwater treat as Phase 1 of the 1982 PUD. Mr. Holton made this representation prior to the scheduled expiration date of the 1982 PUD and again in 1985.

43. Mr. Holton's representations were further reinforced by the actions taken by other officials of the County and the Board in approving Phase 1 of the 1982 PUD and treating it as a final development order. At no time did any official or the Board question whether the 1982 PUD was still in effect.

44. Finally, the County failed to comply with the requirements of Section 8.3g of Ordinance 80-3 that Sweetwater be informed 30 days prior to the expiration of the 1982 PUD of the imminent expiration of the PUD or that Sweetwater be provided with notice that the 1982 PUD had in fact expired. These omissions to act on the part of the County constitute the

    type of actions upon which applicants may rely to establish equitable vested rights.

45. In good faith reliance upon the County's Representations and Omissions, Sweetwater completed Phase 1 at a cost of almost $90,000.00. Sweetwater also, in good faith reliance upon the County's Representations and Omissions, assumed that the 1982 PUD was locked-in and, therefore, failed to take any steps to protect the 1982 PUD or otherwise develop the Property. Sweetwater's expenditure of funds and Sweetwater's failure to act to protect the 1982 PUD or otherwise develop the Property are sufficient to support a finding that Sweetwater "[h]as made . . . a substantial change in position or incurred . . . extensive obligations and expenses . . . ." See Bregar v. Briton, 75 So. 2d 753 (Fla. 1954), cert. denied, 348 U.S. 972 (1955).

46. Finally, by detrimentally relying upon the County's Representations and Omissions, Sweetwater has been placed in a position as to whether it would be highly inequitable and unjust to destroy its rights to develop the Property pursuant to the 1982 PUD by requiring that develop of the Property comply with the Plan rather than the law governing the development of the 1982 PUD.

47. In conclusion, Sweetwater has proved by a preponderance of the evidence that all of the elements of

equitable estoppel and, therefore, equitable vesting as defined in Section 323.06 of the Code apply to the Property.

ORDER

Based on the foregoing Findings of Fact and Conclusions of Law, it is

ORDERED that Sweetwater, Ltd., is entitled to an equitable vested rights certificate pursuant to Section 323.06 of the Code. The equitable vested rights certificate authorizes Sweetwater, Ltd., to develop the Property consistent with ZOM- 18-82. It is further

ORDERED that Sweetwater, Ltd., is not entitled to a statutory vested rights certificate pursuant to Section 323.05 of the Code.

DONE AND ORDERED this 14th day of July, 2000, in Tallahassee, Leon County, Florida.

LARRY J. SARTIN

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 14th day of July, 2000.

ENDNOTES

1/ While Mr. Holton testified that he believed the date on Petitioner's Exhibit 1-40 was incorrect and should have reflected a May 26, 1982, date, the weight of the evidence supports a finding that the date on the letter, May 26, 1983, is correct. On May 24, 1983, Mr. Tarbox informed Mr. Gars by letter that Mr. Holton had informed him of his intent to "write a letter confirming that we have no problems with the PUD zoning, at least until next May." Petitioner's Exhibit 1-43.

Mr. Holton's letter of May 26, 1983, was written shortly thereafter. Additionally, Mr. Gars wrote to Mr. Tarbox by letter dated June 27, 1983, just over a month after the date of Mr. Holton's letter, and indicated that he had "[r]eceived [a] copy of letter dated May 26, 1983 with reference to Sweetwater, Ltd. being required to file a development plan by May 18, 1984." Petitioner's Exhibit 1-45. The letter referred to is Mr.

Holton's letter of May 26, 1983.

2/ While the original letter, Petitioner's Exhibit 1-56, does not include the word "letter", the weight of the evidence supports a finding that Mr. Holton was referring to Mr.

Beckham's August 1, 1985, letter.

3/ The designation of the Property as Preservation/Conservation was made in error because the Property and surrounding properties were incorrectly assumed to be part of Paynes Prairie State Preserve. When this error was subsequently discovered, the County proposed a comprehensive plan amendment in March 1992 designating the land use for the Property as Estate Residential. Sweetwater opposed this amendment at a Board meeting held April 14, 1992. Action on the amendment was deferred. No action had been taken as of the time of the formal hearing to correct this error.

COPIES FURNISHED:

Jeffrey M. Braswell, Esquire Scruggs & Carmichael, P.A. Post Office Box 23109 Gainesville, Florida 32602

David C. Schwartz Assistant County Attorney

Alachua County Attorney's Office Post Office Box 2877 Gainesville, Florida 32602-2877

Rick Wolf, Interim Director Growth Management Department c/o Office of Codes Enforcement

120 South Main Street Gainesville, Florida 32602

Shirley Lane

Clerk to the Alachua County Board of County Commissioners

12 South East 1st Street Gainesville, Florida 32601

NOTICE OF RIGHT TO JUDICIAL REVIEW

This Final Order is subject to judicial review in the Circuit Court, Eight Judicial Circuit, in and for Alachua County, Florida, by petition for writ of certiorari filed no later than thirty (30) days after this Final Order is filed with the Clerk of the Alachua County Board of County Commissioners.

Docket for Case No: 99-005134VR

Orders for Case No: 99-005134VR