STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHARLES J. HARRIS TRUST, )

)

Petitioner, )

)

vs. ) Case No. 99-5365VR

) CLAY COUNTY BOARD OF COUNTY ) COMMISSIONERS, )

)

Respondent. )

)

FINAL ORDER

Pursuant to written notice, a formal hearing was held in this case before Larry J. Sartin, a duly-designated Administrative Law Judge of the Division of Administrative Hearings, on February 3, 2000, in Green Cove Springs, Florida.

APPEARANCES

For Petitioner: John Kopelousos, Esquire

Post Office Box 562

Orange Park, Florida 32067-0562

For Respondent: Frances Moss, Assistant County Attorney

Clay County

Post Office Box 1366

Green Cove Springs, Florida 32043-1366 STATEMENT OF THE ISSUES

Whether Petitioner, the Charles J. Harris Trust, has demonstrated, pursuant to the Vested Rights Review Process of Clay County, Florida, that a vested rights certificate to undertake development of certain real property located in Clay

County should be issued by Clay County, notwithstanding the fact that part of such development will not be in accordance with the requirements of the Clay County 2001 Comprehensive Plan?

PRELIMINARY STATEMENT

On or about December 14, 1999, 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, was filed by Petitioner, Charles J. Harris Trust, with the Clay County Department of Planning and Zoning. Petitioner also filed Affidavit and other documentation in support of the Application. On or about December 23, 1999, Respondent, Clay County, referred the Application and the supporting documentation to the Division of Administrative Hearings for assignment of an Administrative Law Judge.

Pursuant to an agreement of the parties, a hearing was held on February 3, 2000, 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 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, and as amended by Clay County

Ordinances 92-22, 92-29, and 93-26. At the commencement of the hearing, the Application and documentation filed with the Application were accepted into evidence. Petitioner presented the testimony of Charles J. Harris. Respondent presented the testimony of Shawanda Watson and Mr. Kopelousos.

No transcript of the hearing was ordered by the parties. Petitioner filed a Proposed Final Order. The Proposed Final Order has been fully considered in entering this Final Order. Respondent did not file a proposed order.

FINDINGS OF FACT

1. The Property.

   
   

   1. The Applicant, Charles J. Harris Trust, is the owner of real property located in Clay County, Florida. The Applicant's property (hereinafter referred to as the "Property") is more fully described in Exhibit "A" of the documentation offered in support of the Applicant's application.

   2. The Property consists of approximately 29 acres located on Lake Geneva.

   3. The Property was purchased by Charles J. Harris and Bonnie Lee Harris, husband and wife, on January 14, 1970. On May 4, 1972, the Property was transferred by the Harris' to the Charles J. Harris Trust.

   4. The beneficiaries of the Applicant are the three adult children of the Harris'. One of those children, Becky Harris,

      is profoundly retarded and requires constant care. While room and board are provided for Becky, the Harris provide funds for other needs.

2. Development of the Property; Government Action Relied Upon.

1. On January 14, 1970, the Harris' entered into an contract to purchase the Property. See Exhibit B of the documentation in support of the Applicant's application for the specific terms of the purchase agreement.

2. Prior to entering into the purchase contract, Winfred

   
   

   1. Crawford, a registered real estate broker, wrote a letter dated January 12, 1970, on behalf of the Harris' to George A. Gnann of the Zoning Board for Clay County, Florida. Ms. Crawford informed Mr. Gnann of the following:

      The property is being purchased with the thought of subdividing and the buyer has requested that we obtain for him the Clay County requirements, as to lot sizes, road sizes and etc., also please advise the zoning now on this property and what the requirements would be to change the zoning necessary to meet the County Requirements.

      
      

      All information that would be informative will be appreciated.

      
      

3. By letter of January 14, 1970, Ms. Crawford wrote another letter to Mr. Gnann memorializing information provided by Mr. Gnann verbally in response to Ms. Crawford's letter of January 12, 1970. A copy of this letter was provided to the

   Harris' on January 14, 1970, prior to their purchase of the Property. In part, Ms. Crawford wrote the following:

   I understood the requirements and procedure as follows:

   
   

   1. The Clay County required lot size- 15,000 square feet, no lot to be less than 70 feet in width.

      
      

   2. The set back line from any street would be 25 feet, and set back from side lot lines

      10 feet. . . .

      
      

   3. Proposed Plat would be submitted to you for your approval and signature. (This would be for approval of lot sizes and set back lines).

      
      

   4. Proposed Plat then would be submitted Louis McKee, Clay County Engineer, Orange Park, Florida, for his approval of width and location of streets. Proposed Plat would require his signature.

      
      

   5. Proposed Plat then would be submitted to Mr. Harry Riggs, County Health Department, Green Cove Springs, Florida, for his approval for sewerage disposal. Proposed Plat would require his signature.

      
      

   6. Proposed Plat would then be submitted for the approval and acceptance of the County Commissioners, requiring the Chairmans [sic] signature of acceptance before the Plat could be recorded.

      
      

4. Based upon the foregoing, Clay County represented to the Harris' how the Property could be developed according to zoning and Clay County laws governing development of property in existence in 1970. Clay County also informed the Harris' of the

   steps that they needed to follow in order to plat the Property according to Clay County law in 1970.

   1. Detrimental Reliance.

      
      

5. In reliance upon Clay County's representations, the Harris' purchased the Property. The Harris' paid $35,000.00 for the Property. The Harris' also paid interest of $29,380.00 to finance the purchase price for the Property.

6. On July 18, 1972, the Clay County Zoning Commission gave notice that it would hold a public hearing on Thursday, August 3, 1972, to consider rezoning certain properties in Clay County. Among other things, the Clay County Zoning Commission gave notice that it planned to consider rezoning the Property from Agricultural, "A", to Single-Family Residential, "RA". The RA zoning category changed the minimum residential lot size allowed for the Property from 15,000 square feet to 20,000 square feet.

7. Prior to the Harris' purchase of the Property, the shoreline of the Property had been modified. A natural cove along the shoreline of the Property was closed in with a spoil dike and island.

8. After purchasing the Property the Harris' began seeking approval from the Florida Department of Environmental Regulation (now the Department of Environmental

   Protection)(hereinafter referred to as the "Department") of a permit to restore the shoreline to its original condition.

9. In connection with the restoration of the Property's shoreline, costs were incurred by the Applicant for the services of engineers and surveyors. A "Study of Proposed Reconnection of Pond to Lake Geneva" was prepared by Barry A. Benedict, Ph.D., and plans for the restoration of the shoreline were prepared.

10. On March 26, 1982, the Department approved a permit for the restoration of the shoreline. The evidence failed to prove that Clay County made any representations to the Applicant as a result of the process of obtaining the permit.

11. The restoration of the shoreline of the Property was completed by the Applicant in 1982. The costs of the restoration project incurred by the Applicant was approximately

    $11,940.00.

    
    

12. During the early 1980's the Applicant incurred costs of $22,319.00 to clear a dirt road from the western boundary of the Property to most of the lots along the shoreline, including four lots subsequently sold by the Applicant.

13. The four lots sold by the Applicant were sold Between approximately 1983 and 1984. The lots were sold to unrelated third parties. Non-exclusive easements of ingress and egress

    were also conveyed to the owners of the sold lots. All of the sold lots are located along the shoreline of the Property.

14. One of the sold lots, Lot 1-L (1.163 acres), is located along the northern boundary of the Property and has ingress/egress along the northern boundary of the Property. Another of the sold lots, Lot F (0.823 acres), requires ingress/egress along the cleared road that was cut through unsold lots. The other two sold lots, Lots C (0.681 acres) and D (0.731 acres), are contiguous and require ingress/egress along the cleared road that was cut through unsold lots. Lots C and D are separated by Lot E, a 0.691-acre unsold portion of the Property.

15. In 1985, after selling the four lots, the Applicant had a Boundary Survey of the Property prepared by Joseph G. Knapp, Registered Land Surveyor. The Boundary Survey was completed

    June 22, 1985. The Boundary Survey identifies how the Applicant intends to subdivide the Property into 34 lots. Three of the lots are just over one acre. The rest of the lots are between

    0.6 acres and just under one acre.

    
    

16. The Boundary Survey prepared for the Applicant could have served as a recorded plat but was not recorded with Clay County by the Applicant. Steps 3 through 6 outlined in Ms. Crawford's letter of January 14, 1970, setting out the

    representations from Clay County concerning the laws governing development of the Property in 1970, and in particular, recording a plat of the Property, were not followed by the Applicant.

17. At the time of the formal hearing of this case, approximately 23 acres of the Property remain unsold.

    1. Rights that will be Destroyed.

       
       

18. Clay County adopted a comprehensive growth management plan in January 1992. Pursuant to the plan, the land use for he Property was designated as "Agriculture." Land designated with a land use of "Agriculture" pursuant to the plan may be developed at a density of one residential unit per 20 acres.

    The land use designation was modified in 1994 to "RA 2" but not in any material respect.

19. Property designated "Agriculture" or "RA 2" may also be used for agricultural purposes as long as they are "bona fide" agricultural purposes, or "good faith commercial agricultural use of the land."

20. Prior to the adoption of the Clay County comprehensive plan, the Applicants could have sold the remaining 23.7 acres of the Property as the remaining 30 unsold lots designated in the Boundary Survey prepared for the Applicant. As a result of the land use designation for the Property adopted in Clay County's comprehensive plan, the remaining 23.7 acres of the Property

    with easements for ingress and egress to sold lots may be developed with one residential unit only.

    1. Procedural Requirements.

    
    

21. The parties stipulated that the procedural requirements of Vested Rights Review Process of Clay County, adopted by Clay County Ordinance 92-18, as amended, have been met.

    CONCLUSIONS OF LAW

    
    

    1. Jurisdiction.

       
       

22. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.65(9), Florida Statutes (1997), 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 Clay County

       
       

       Land Development Code.

       
       

23. 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 its Comprehensive Plan by Ordinance 92-03 on January 23, 1992.

24. In order to ensure 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 the application of the Comprehensive Plan, Clay County promulgated Article VIII of the Clay County Land Development Code (hereinafter referred to as the "Code"). The intent of Clay County in adopting Article VIII of the Code is included in Section 20.8-3(b) of the Code:

    (b) It is the intent of this Article to provide the standards and administrative procedures for determining whether a person has a vested right to undertake development activities, notwithstanding the fact that all or part of the development is not in accordance with the requirements of the Clay County 2001 Comprehensive Plan or land development regulations.

    
    

25. There are two general types of circumstances pursuant to which vested rights to develop property may be found to exist pursuant to 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.

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

27. In the case of an application for equitable vesting no determination on the merits is made by Clay County. The Director of the Planning and Zoning 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 and Zoning Department determines that the application is complete. Id.

28. Pursuant to a contract entered into between Clay County and the Division of Administrative Hearings, Administrative Law Judges 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.

29. 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 Administrative Law Judge 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.

       
       

30. 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 the 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 goodfaith 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 Charles J. Harris Trust's Application.

    
    

31. 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.

32. The Applicant has argued that it proved by a preponderance of the evidence that all of the elements of equitable estoppel and, therefore, equitable vesting as defined in Article VIII of the Code exist in this case.

33. The Applicant has argued that the evidence proves it reasonably relied upon representations from the Clay County Zoning Board to the Harris' concerning the acceptable residential density applicable to the Property pursuant to the land development laws in effect in 1970 prior to the Harris' purchase of the Property. In good faith reliance upon these representations, the Applicant has argued that the Harris' proceeded to purchase the Property and expended funds to modify the shoreline of the Property, provide access to the Property, and to pay for the preparation of a Boundary Survey for the Property. These actions do not, however, satisfy the first two criteria for equitable vesting: that the Applicant acted in

    good faith and in reasonable reliance upon a valid, unexpired act or omission of Clay County.

34. The only act of Clay County the Applicant proved it relied upon in this matter was an explanation of the existing law immediately before the Harris' purchased the Property. Property owners cannot assume, however, that the laws governing the development of property will never change. It is not reasonable for the Applicant to not complete development of the Property between 1970 and 2000 and expect that the existing zoning and land use regulations applicable to the Property would not change. See City of Gainesville v. Cone, 365 So. 2d 737 (Fla. 1st DCA 1978). In fact, the zoning laws governing the Property did change only two years after the Property was purchased by the Harris. There has to be some other act of Clay County that would reasonably have led the Applicant to believe that, even if the law governing the development of the Property changed in the future, as it did twice, the development the Applicant intended for the Property would be allowed to proceed almost 30 years after it was purchased. Such an act of Clay County was not proved in this matter.

35. The third criterion for equitable vesting, that the Applicant must have made a substantial change in position or incurred such extensive obligations and expenses that it would be highly inequitable or unjust to destroy the rights the

    Applicant has acquired, has been proved by the Applicant because of its expenditures after purchasing the Property and the adverse impact on the Applicant of complying with the Comprehensive Plan.

36. Based upon a review of the evidence presented at the hearing held before the undersigned on February 3, 2000, it is concluded that the Applicant has failed to prove that all of 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 dated December 14, 1999, is DENIED.

DONE AND ORDERED this 3rd day of March, 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 3rd day of March, 2000.

COPIES FURNISHED:

John Kopelousos, Esquire Post Office Box 562

Orange Park, Florida 32067-0562

Frances Moss, Assistant County Attorney Clay County

Post Office Box 1366

Green Cove Springs, Florida 32043

Dale Wilson, Chairman

Board of County Commissioners Clay County

Post Office Box 1366

Green Cove Springs, Florida 32043

Lynn A. Weber, Director of Planning Clay County

Post Office Box 367

Green Cove Springs, Florida 32043-0367

Shawanda Watson

Planner and 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 in the Circuit Court, Fourth Judicial Circuit, in and for Clay County, Florida.

Docket for Case No: 99-005365VR

Orders for Case No: 99-005365VR