Findings Of Fact Purchase of the Subject Property. The property at issue in this proceeding consists of approximately fifty-two acres (hereinafter referred to as the "Subject Property"). The Subject Property was acquired by Charles L. Parham in 1988 from Forest Hills, Inc. The Subject Property is located in a rural, undeveloped portion of southern Clay County (hereinafter referred to as the "County"). 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. 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. 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. 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. 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. 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. 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. 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. 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. Development Activities on the Subject Property. 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. The Applicants also cleared and graded two interior roads which dissect Forest Hills. Applicants named the interior roads "Viking Street" and "Valhalla Street". The clearing and grading of roads was performed by Applicants in order to gain access to the Subject Property for themselves and potential renters. The Applicants also cleared part of the Subject Property for their own use. 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. 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. Applicants purchased fill dirt and clay which was used in clearing and grading access and interior roads. 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. Inger Robertson applied for and received a mobile home permit for her two-acre parcel in 1990. Applicants also applied for and received mobile home permits for two one-acre tracts. One mobile home was used as their residence. 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. Petitioners' Alleged Detrimental Reliance. 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. 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. 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. 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. 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. Rights That Allegedly Will Be Destroyed. On January 23, 1992, the County's Board of County Commissioners adopted the Plan. 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. 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. 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.
The Issue Whether the Appellant, People's First Financial Savings and Loan Association, has demonstrated that development rights in certain real property it owns have vested against the provisions of the 2010 Comprehensive Plan?
Findings Of Fact The Property at Issue. In early 1988, the Appellant decided to establish a full-service savings and loan branch site in Tallahassee, Florida. Therefore, the Appellant began looking for a parcel of real estate to purchase where the branch could be constructed. On May 11, 1989, after an extensive search, the Appellant entered into a Contract for Sale and Purchase (hereinafter referred to as the "Contract"), with Southwest Georgia Oil Company, Inc. Pursuant to the Contract, the Appellant agreed to purchase approximately 1.43 acres of property (hereinafter referred to as the "Property"). The Property is located at the corner of Thomasville Road and Tallahassee Drive (identified as Tallahassee Road on Exhibit C, the General Location Map), Tallahassee, Florida. The following "Special Clauses" were included in the Contract: BUYER SHALL HAVE 45 DAYS FROM THE DATE OF THE EXECUTION OF THIS CONTRACT TO INVESTIGATE FEASIBILITY OF THIS PROPERTY FOR HIS PURPOSES. BUYER SHALL NOTIFY SELLER IN WRITING PRIOR TO THE EXPIRATION OF THIS 45 DAY PERIOD IN THE EVENT BUYER DECIDES NOT TO PURCHASE, AT WHICH TIME THE BINDER SHALL BE RETURNED AND THIS CONTRACT SHALL BE VOID. IF BUYER FAILS TO TIMELY NOTIFY SELLER OF HIS REJECTION OF THE CONTRACT, THE BINDER SHALL THEN BECOME "AT RISK" BUT SHALL BE CREDITED TOWARD THE PURCHASE PRICE AT CLOSING. . . . . (C) BUYER MAY EXTEND THE CLOSING FOR TWO ADDITIONAL 30 DAY PERIODS BEYOND THE 60 DAYS CALLED FOR IN THIS AGREEMENT. . . . At the time the Contract was entered into, the Property was zoned C-1. Under C-1 zoning, commercial development, such as that proposed by the Appellant, was acceptable development of the Property. Prior to purchasing the Property, the Appellant sought, and received, assurances from the City that the Property was zoned for commercial development such as that planned by the Appellant and that water, sewer and electrical services would be available to the Property. On or about April 23, 1990, the Appellant purchased the Property. Development of the Property. The building the Appellant intended to construct on the Property was a prototype branch savings and loan office with approximately 5,500 square feet. On approximately May 16, 1989, after entering into the Contract, but prior to purchasing the Property, the Appellant met with the City's Traffic Coordinator and Development Coordinator. It was suggested by these City officials that access to the Property be provided from Thomasville Road. The Appellant agreed that access from Thomasville Road was needed. The weight of the evidence failed to prove that the Appellant's decision to insure that it had access to the Property from Thomasville Road was required by the City. The Appellant determined at some point that it would be necessary to obtain an easement across property of the Florida Department of Natural Resources in order to have access from the Property to Thomasville Road. Consequently, the Appellant began meeting with the Florida Department of Transportation and the Florida Department of Natural Resources to obtain approval of the easement and the road access. The remainder of 1989 and the first part of 1990, was primarily devoted to meeting with the Florida Department of Natural Resources to obtain the necessary easement. The Appellant engaged the services of Gary Allen Registered Land Surveyor, Inc., on approximately May 18, 1989. A Topographic Survey was performed on the Property on May 25, 1989, and was issued in August, 1989. On August 9, 1989, a preliminary site plan was issued by Capital Engineering Consultants, Inc. This site plan is Exhibit D to the Application. Other site plans were prepared in 1990, but not provided to the undersigned. The Appellant obtained approval from the Comptroller of the State of Florida for the proposed savings and loan branch office in June, 1989. The Appellant finally reached agreement with the Florida Department of Natural Resources during the first half of 1990. The Florida Cabinet was required to approve the agreement. The Florida Cabinet was scheduled to review the agreement in June, 1990. The Mayor of the City sent a letter dated June 19, 1990, to the Florida Cabinet indicating that the Property would be subject to the 2010 Comprehensive Plan and requesting the Cabinet to delay its decision. The Cabinet agreed and no action to approve or disapprove the agreement has been made. The Appellant has not obtained a storm water permit, a building permit or site plan review or approval for the Property or any other permits required to develop the Property. The 2010 Comprehensive Plan. The 2010 Comprehensive Plan was being developed by the City during late 1989. On February 2, 1990, the 2010 Comprehensive Plan contained a Lake Protection category. The 2010 Comprehensive Plan was being considered and included the Property in a Lake Protection category before the Appellant purchased the Property. The Appellant was aware of the 2010 Comprehensive Plan before it purchased the Property. The weight of the evidence failed to prove that the City had any duty or responsibility to inform the Appellant of the 2010 Comprehensive Plan. The weight of the evidence also failed to prove that the Appellant asks the City about the possible application of the 2010 Comprehensive Plan to the Property prior to the purchase of the Property by the Appellant. Governmental Actions Relied Upon by the Appellant. The Appellant indicated at Exhibit 9 that it relied upon the following City approvals and actions: 1. 3/89 Conformation of commercial zoning to allow construction of branch bank site. . . . . 5. 5/16/89 Assurances from Danny Brown (Tallahassee Development Coordinator) and Debbie Danton (Traffic Coordinator) that utilities and necessary services were available to the site and project was "approvable," and that access to Tallahassee Drive was no problem. . . . . 9. 1/15/90 Assurances at pre- application meeting with Lamar Clemons, Debbie Danton, Bobby Posey and Dave Prite of City staff that there were no inherent problems with the proposed site. The approvals and actions of the City listed by the Appellant in Exhibit 9 all occurred before the Appellant purchased the Property. The other governmental approvals and actions listed by the Appellant in its Exhibit 9 were actions of State agencies and not the City. The weight of the evidence failed to prove that any reliance by the Appellant on any act or omission of the City was reasonable in light of the Appellant's knowledge about the existence of the 2010 Comprehensive Plan and the Appellant's failure to determine how the 2010 Comprehensive Plan would apply to the Property prior to its purchase of the Property. Change in Position or Obligations and Expenses Incurred by the Appellant. The Contract provided for a purchase price for the Property of $365,000.00. The purchase price of the Property was reduced prior to the purchase of the Property by approximately $50,000.00. In the Application it was indicated that the total expenditures related to the Property at the time the Application was filed amounted to $336,351.50. In the Appellant's Exhibit 6, it is indicated that the total expenditures amounted to $335,351.50. The Appellant provided information in Exhibit 8 concerning some of the expenditures. In a memorandum dated October 22, 1990, it is indicated $318,093.35 was expended with Crossland Realty, Gary Allen, Registered Land Surveyor, Collins & Associates, Associated Land Title Group, Inc., and Gardner, Shelfer & Duggar, P.A. Exactly what the expenditures were for and when they were incurred is not indicated. Apparently, however, based upon notations on the memorandum, most, if not all, of the amounts on the memorandum are attributable to the purchase of the Property. Some part of the $11,344.25 paid to Gary Allen and Collins & Associates may have been attributable to the development of the property. Exhibit 8 also includes a letter from Bayne Collins of Collins & Associates dated June 4, 1990. It appears that the amounts included on this letter are included in the October 22, 1990, memorandum. Exhibit 8 also includes a bill for legal services. It is not indicated the exact nature of the legal services provided. The weight of the evidence failed to prove that the Appellant incurred any cost or obligation or altered its position in reasonable reliance on any action or omission of the City other than the City's representation that the Property was zoned C-1 and utilities were available. The weight of the evidence failed to prove what costs or obligations the Appellant incurred, or what alterations in position the Appellant made, prior to becoming aware of the 2010 Comprehensive Plan and in reliance on any act or omission of the City. Development of the Property under the 2010 Plan. Under the 2010 Comprehensive Plan, the Property is located in an area designated as "lake protection." The Property cannot be put to commercial use. The Property can probably only be developed as a single residential site. Procedure. On or about November 8, 1990, the Appellant filed an Application for Vested Rights Determination (hereinafter referred to as the "Application"), with the City. On March 18, 1991, a hearing was held to consider the Application before the Tallahassee-Leon County Vested Right Determination Staff Committee. The Staff Committee denied the Application. By letter dated July 3, 1991, the Division of Administrative Hearings was requested to provide a Hearing Officer to review this matter. By agreement of the parties, the record in this matter was not supplemented.
The Issue Whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what action should be taken.
Findings Of Fact At all times material hereto, William D. Manser (Respondent) was licensed in Florida as a real estate broker, having been issued license number BK 0427410. Respondent was a broker/officer of United Equity Marketing, Inc., located at 6635 West Commercial Boulevard, Tamarac, Florida. Since October 1, 1995, his broker's license has not been on an active status due to non-renewal of the corporate registration. By warranty deed dated February 14, 1992, James and Angela Cunduff became owners of property located at 6531 Southwest Seventh Place, Fort Lauderdale, Florida. By Articles of Agreement for Deed dated February 25, 1992, James and Angela Cunduff agreed to convey the property to Respondent's corporation, United Capital Networks, Inc., if certain conditions were complied with. The conditions included Respondent's corporation making all the mortgage payments and paying the taxes on the property, and keeping the buildings on the property properly insured. In return, James and Angela Cunduff agreed, among other things, to execute a warranty deed to Respondent's corporation and to place the warranty deed in escrow. Respondent and the Cunduffs agreed that the Articles of Agreement for Deed would not be recorded. Respondent looked upon himself and conducted his actions as the owner of the property at 6531 Southwest Seventh Place, Fort Lauderdale, Florida. On October 31, 1995, Mary J. Augustine signed a lease agreement for the rental of a portion of the home, the rear of the home, located at 6531 Southwest Seventh Place, Fort Lauderdale, Florida. The rear area of the home had its own entrance. The rental was for one year, beginning November 15, 1995, and ending October 30, 1996. Respondent used part of the home as a storage area. At the front of the home, there were two separate entrances. One of the separate entrances was for the storage area. The other separate entrance was for another area of the home. The lease agreement indicated United Equity Markets, Inc., as the managing agent of the property. The lease agreement required signatures of the "Tenant" and the "Lessor." Ms. Augustine signed the lease as "Tenant," and Respondent signed as "Lessor," adding the word "Agent" next to his signature. United Equity Markets, Inc., is Respondent's corporation. Prior to the signing of the lease, Respondent had met with Ms. Augustine at the house at least twice before she signed the lease agreement. Respondent represented himself as the manager of the property. The home was listed as a single-family residence. Ms. Augustine believed that the home would be occupied by Respondent, another tenant, and herself. The evidence is insufficient to show and make a finding that three families would live or had lived at the home. In accordance with the lease agreement, Ms. Augustine gave Respondent $1,290, as a security deposit. Ms. Augustine had also given Respondent, prior to the security deposit, $645 for the first month's rent. Ms. Augustine wanted to move into the rear portion of the home approximately two weeks prior to the beginning of the rental period. Respondent agreed that Ms. Augustine could have access to the home and clean the rear area where she was going to reside. Ms. Augustine had problems with, such things as, the refrigerator, oven, and swimming pool. She decided not to rent the home. Ms. Augustine demanded her deposit and first month's rent from Respondent. However, he refused to return the monies. The lease agreement contained a default provision, providing for the recovery of damages by the lessor if the tenant defaulted. The lease agreement also contained a security provision, providing for the non-refundable nature of the security deposit under certain conditions, including termination of the lease prior to its expiration. Ms. Augustine attempted but could not contact Respondent at his office because he had closed his office prior to October 1995. Ms. Augustine attempted also to contact Respondent at the telephone number that he had provided her, which was his home number. She was again unsuccessful due to Respondent having his telephone disconnected because he had gone to New York to care for his ill sister. Respondent did not provide Ms. Augustine with an accounting of the monies. Respondent was conducting his own personal real estate transaction with Ms. Augustine.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Real Estate Commission enter a final order dismissing the Administrative Complaint against William D. Manser. DONE AND ENTERED this 24th day of February, 1999, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 24th day of February, 1999.
The Issue The issue is whether the site plan for the Evergreens project should be approved.
Findings Of Fact Based upon all of the evidence, including the stipulation of counsel, the following findings of fact are determined: Background In this land use dispute, Petitioners, Meadowbrook Neighborhood Association, Inc.; Lynn Hill; A.A. Sulkes; Philip Bennett; Vera Harper; and Carlos McDonald (Petitioners), have contested a decision by the Developmental Review Committee (DRC) of Respondent, City of Tallahassee (City), to approve a Type B site review application for a project known as Evergreens at Mahan (Evergreens). In its decision, the DRC exempted the project from the consistency and concurrency requirements of the City's Comprehensive Plan based upon a 1991 agreement by the City and the property owner which conferred vested rights on the property. Thus, the project was never reviewed for compliance with the concurrency and consistency requirements of the City's Comprehensive Plan. If the application is approved, the applicant will be authorized to commence the process for constructing 416 apartment units in ten three-story buildings on approximately 24.56 acres of land located just south of the intersection at East Mahan Drive and Riggins Road in Tallahassee, Florida. The apartment complex will be one of the largest in the City. The application was filed by Respondent, Genesis Group (Genesis), acting as an agent for the owner of the property, Respondent, George K. Walker, Trustee (Walker). After the application is approved, Walker is contractually obligated to sell the property to Respondent, TTK, L.L.C. (TTK), a New Hampshire developer, who will actually construct the complex. In response to the DRC's decision, on August 9, 2000, Petitioners filed a Notice of Intent to File Petition for Formal Proceedings. On August 28, 2000, Petitioners filed their Petition for Formal Administrative Proceedings. As grounds for denying the application, Petitioners contended that a Stipulation and Final Settlement Agreement (Settlement Agreement) entered into by Walker and the City on August 6, 1991, in DOAH Case No. 91-4109VR determining that the property was presumptively vested violated in a number of respects the City's Vested Rights Review Ordinance (Ordinance); that any vested rights acquired on the property have expired under Section 18-104(1)(c), Code of Ordinances; and the site plan is inconsistent with the City's Comprehensive Plan and Land Development Code. As to the latter ground, the parties have agreed that this issue need not be addressed now, but rather it can be considered by the DRC in the event Petitioners prevail on the merits of this action. Other than the vesting status, no issues have been raised regarding the site plan itself. On September 11, 2000, the Commission entered its Determination of Standing. Pursuant to the Bylaws of the Commission, the matter was forwarded to the Division of Administrative Hearings (DOAH) on September 20, 2000, for an evidentiary hearing. The parties Meadowbrook Neighborhood Association, Inc. (Association) is a not-for-profit corporation organized on February 18, 2000, and existing under the laws of the State of Florida. The Association represents approximately 200 of the 279 homeowners who reside in the Meadowbrook neighborhood. The Meadowbrook neighborhood is zoned for Residential Preservation-1 and has a residential density of less than three units per acre. A portion of the Meadowbrook neigborhood is adjacent to the proposed project. Lynn Hill, A.A. Sulkes, Philip Bennett, Vera Harper, and Carlos McDonald reside and own property in the Meadowbrook neighborhood. Their property either abuts, or is close to, the location of the proposed Evergreens project. All are members of the Association and bring this action in their individual capacity and as a member of the Association. During the course of the hearing, Respondents stipulated to the standing of all Petitioners. The City is a municipal corporation of the State of Florida. It has authority to review proposed site plans for real property located within the City's geographic boundaries. Genesis is a Tallahassee consulting firm which prepared the application for Walker and acted as his agent in seeking approval of the site plan for the Evergreens project. TTK, a New Hampshire limited liability corporation, is a developer and builder of real property, and has a contract to purchase the site of the Evergreens project pending final approval of the site plan by the City. Walker is the owner of the approximately 30-acre parcel (the subject property) which is at issue in this proceeding, and is the applicant for the Evergreens site plan. The Evergreens project will be located on 24.56 acres of this 30-acre parcel. The property and its history The subject property has been owned by the Walker family, either as a part of a consortium of investors or in trust, for more than 70 years. Since the mid-1960's, Walker has controlled the property as trustee for himself and his brother. The site of the apartment complex lies a few hundred feet south of the intersection of East Mahan Drive (U.S. 90) and Riggins Road. Approximately 11.738 acres of the land sit on the eastern side of Riggins Road while the remaining 12.821 acres sit on the western side. The remainder of the property, which consists of around 7 or 8 acres, is situated just north of the apartment site, fronts on East Mahan Drive, and is currently zoned commercial. The Meadowbrook neighborhood begins approximately 1,250 feet or so south of Mahan Drive and sits on around 100 acres. The boundaries of the neighborhood abut the southern and southeastern ends of the project site. The relevant history of the property goes back to January 9, 1926, when the original plat of Glenwood Estates was recorded in Leon County (County). The property was located in the County, but not within the City, and was owned by a group that included Walker's father. The subject property was identified in the plat as Blocks L and M. The Glenwood Estates plat did not contain any statements establishing use or density for the subject property. On April 7, 1943, Glenwood Estates was replatted for taxation purposes. Walker's mother, a widow and the heir of Walker's father, was among the owners of the property. The 1943 replat reconfigured the subject property as a single, large acre parcel. The replat does not contain any statements establishing uses or densities for the platted parcels. Prior to 1967, Glenwood Estates became the sole property of Walker's mother. Upon her death, the property was placed in trust for the benefit of Walker and his brother. George K. Walker is the named trustee of the property. On March 22, 1989, the remaining property owned by Walker was subdivided into three parcels; two of the small parcels on the southwestern corner of Riggins Road and Mahan Drive were sold, thereby reducing the size of the subject property by approximately 1.56 acres. By 1991, the 1943 replat of Glenwood Estates had been resubdivided a minimum of seven times which changed the replat substantially from its original configuration. Five of the resubdivisions involved the Meadowbrook tract. Since 1989, the subject property has been configured as a large parcel of approximately 30 acres. Since 1991, the subject property is the only property in the replat that Walker has owned. In addition to his ownership of the subject property, until 1971 Walker owned approximately 69 acres of land that presently constitute a large part of the Meadowbrook neighborhood. On October 6, 1971, Walker entered into a contract for the sale of that land. Among the conditions of the sale was a requirement that the property consisting of the Meadowbrook neighborhood be rezoned R-3; that the property that is the proposed apartment site be rezoned RM-2; and that the property fronting Mahan Drive be rezoned C-1. Costs of the rezoning were to be shared equally by the buyer and seller. At the time of this sale, the subject property and the Meadowbrook tract were undeveloped. In 1972, the County rezoned the property consisting of the Meadowbrook neighborhood as R-2 for single-family residential development; rezoned the approximately 25-acre portion of the subject property north of the Meadowbrook tract as RM-2, for multi-family residential development; and rezoned the property fronting Mahan Drive as C-1 for commercial development. The multi-family zoning on the property that is the proposed location for the Evergreen project authorized a range of dwelling units from single-family to two-family to multi-family up to a maximum of 17.4 units per acre. One of the conditions of the 1971 sale was the granting of an easement by Walker to the buyer (Collins Brothers) to extend Riggins Road south from Mahan Drive to the northern boundary of the Meadowbrook tract. At the time of the sale, there was no direct access from the Meadowbrook tract north to Mahan Drive. On an undisclosed date, Collins Brothers was forced into receivership. Therefore, between 1971 and 1980, there was no development on the Meadowbrook tract or the subject property, other than the roughing-out of the location of what was to become Riggins Road. In 1980, Guardian Mortgage Investors (Guardian) took over the previous buyer's interest. At that time, Walker entered into a road construction agreement with Guardian in which he agreed to pay one-half of the road construction costs to extend Riggins Road south from Mahan Drive to the Meadowbrook subdivision. Guardian agreed to pay one-half of the road construction costs as well as all of the cost for the installation of the main water and sewer trunk lines, except for laterals which were to be installed at Walker's expense. In 1981, the construction of Riggins Road and the main water and sewer trunk lines were completed. The minimum allowable width of Riggins Road from Mahan Drive to the northern boundary of the Meadowbrook tract was 30 feet. However, it was constructed 36 feet wide so that it could serve not only the Meadowbrooks neighborhood, but also Walker's future development. For the same reason, even though the minimum right-of-way for this section of Riggins Road was 60 feet, an extra 20 feet (or 80 feet in all) were dedicated for the right-of-way. No development has occurred on the subject property since this dedication. The sewer main serving the Meadowbrook neighborhood is a gravity feed system flowing into a pump station within the Meadowbrook neighborhood. From there, it is pumped into a force main to a point under or adjacent to Riggins Road approximately 50 feet into the property that is zoned RM-2. From there, the system is again a gravity feed system flowing north under Mahan Drive to another pump station. If the sewer system had been installed to serve only the Meadowbrook neighborhood, it could have consisted only of a forced main system between the two pump stations. However, because further development was anticipated, the developer installed a gravity feed system that flowed through the RM-2 property, through the C-1 property, and under Mahan Drive at considerably more expense than a forced main system. Both the water and sewer systems have the capacity to serve 670 domestic equivalent units in the RM-2 and C-1 portions of the subject property. Following their completion, the water and sewer facilities, and Riggins Road, were dedicated to the City. Since 1983 or 1984, the City has owned, operated, and maintained Riggins Road and the water and sewer lines from Mahan to the Meadowbrook neighborhood. On April 14, 1983, Walker petitioned the City to annex his property. By Ordinance No. 83-0-2185 adopted on December 30, 1983, the Walker property, the Meadowbrook neighborhood, and considerable other properties were annexed into the City. Prior to annexation, Walker received assurance from the City that the annexation would not affect his ability to develop the RM-2 and C-1 portions of his property. The City's vesting process On July 16, 1990, the City adopted its 2010 Comprehensive Plan. Concurrent with its adoption, the City adopted a Vested Development Rights Review Ordinance (Ordinance), which established "the sole administrative procedures and standards by which a property owner" could assert that he had acquired certain property rights and obtain a vested rights determination from the City. The Ordinance is codified as Article VII of Chapter 18 of the City's Code of Ordinances. The Ordinance established the administrative procedures and standards for common law or statutory vesting. A property that was determined to be vested under the Ordinance was exempt from the application of the consistency and concurrency requirements of the City's 2010 Comprehensive Plan. Once a property is found to be exempt, or vested, it retains that status in perpetuity. In order to claim vested development rights under the Ordinance, a property owner was required to apply for a vested rights determination with the City's Planning Department within 120 days of July 16, 1990. A failure to timely file an application constituted a waiver of any vested rights claim. However, a property owner whose property was located within a recorded subdivision, or unrecorded subdivision which the City determined had satisfied the City's infrastructure requirements, did not have to submit an application for a vested rights determination. In those cases, vested rights were "presumed," based upon the infrastructure requirements being satisfied, and the property was "presumptively" vested from the concurrency and consistency requirements of the City's Comprehensive Plan pursuant to Section III.1.a. of the Ordinance. The right of a property owner to assert that his property is presumptively vested can be made at any time, even today. After reviewing its land development records, on July 25, 1990, the City published in the Tallahassee Democrat a lengthy list of recorded and unrecorded subdivisions it had determined were presumptively vested from the concurrency and consistency requirements of the City's Comprehensive Plan. The subject property, identified on the City's tax rolls by Tax I.D. #11-28-20-071-000-0, was included within the City's list of presumptively vested recorded subdivisions. The notice stated that it was the City's intent to only exempt subdivisions for which streets, stormwater management facilities, utilities, and other infrastructure required for development had been completed by July 16, 1990. Recorded subdivisions included on the list of exempt subdivisions were presumed to have satisfied the infrastructure requirements. The City did not inspect recorded subdivisions to ensure compliance with the infrastructure requirements, but presumed the existence of the requisite infrastructure. Any recorded subdivision subsequently determined not to be in compliance with the infrastructure requirements could be removed from the exempt list. Unrecorded subdivisions were not included on the exempt list unless they had first been physically inspected to ensure compliance with the infrastructure requirements. Walker's application for vested rights On October 17, 1990, the City's Director of Growth Management instructed that Walker's property be removed from the list of exempt subdivisions due to the resubdivision of the original plat and because all of the infrastructure was not in place. At that time, however, there was no provision in the Ordinance that made resubdivision a factor in the determination of an exemption or vesting. On the other hand, the issue of infrastructure was a valid consideration. On November 13, 1990, Walker timely submitted an application for a vested rights determination on the basis that his property was entitled to vesting under the common law. The City assigned Number V.R.0195T to the application. On January 8, 1991, in accordance with Section III.3.b. of the Ordinance, the City Planning Department determined that the subject property was not vested and notified Walker that Application Number V.R. 0195T was denied. No reason was given. The letter of denial advised him of his rights to contest the planning staff's denial of his vested rights. On January 22, 1991, Walker notified the City of his decision to challenge planning staff's denial of his vested rights application. He elected to waive his right to a hearing before the City Staff Committee, and he requested a hearing before DOAH pursuant to Section III.3.c. of the Ordinance. On July 3, 1991, the City referred Walker's request for an administrative hearing to DOAH on the planning staff's denial of Application Number V.R.0195T. The request was assigned DOAH Case Number 91-004109VR. On July 9, 1991, the case was scheduled for a hearing on August 29, 1991. During the pendency of the DOAH case, and at the request of the City, Walker and his counsel met with representatives of the City, including a Planning Department staffer and an assistant city attorney. Before the meeting, Walker reconfirmed with City officials that his property had been rezoned to C-1, RM-2, and R-2 in 1972, and that the necessary water and sewer lines were in place to serve his property. After learning at the meeting that infrastructure for the property had already been built, the City agreed to find Walker's property vested to the extent that the infrastructure was in place. In other words, Walker would be allowed to develop as many units as the existing infrastructure would accommodate. After the meeting, Walker secured an affidavit from Wayne Colony, the engineer who designed the water and sewer system for the property and the southern extension of Riggins Road. In his affidavit dated August 6, 1991, Coloney attested that the sewer line between Mahan Drive and the Meadowbrook neighborhood was designed to serve the single-family residences, the RM-2 property and the C-1 property; that the sewer line had the capacity to serve 670 residential equivalent units in the RM-2 and C-1 portions of that property; and that the sewer had sufficient capacity for the maximum density of development on the RM-2 and C-1 portions of the property. A letter from the City's Water and Sewer Department dated August 1, 1991, also confirmed that the City had "the necessary water and sewer lines to serve the property." Finally, Riggins Road and the stormwater drain to serve the property had been completed in the early 1980's. With this information in hand, counsel for the City agreed that the property was presumptively vested. On August 6, 1991, or just prior to the scheduled administrative hearing, counsel for Walker and the City executed the Settlement Agreement which declared the subject property an exempt subdivision based upon Section III.1.a.1. of the Ordinance, and presumptively vested the property from the consistency and concurrency requirements of the City's 2010 Comprehensive Plan. The Settlement Agreement authorized the development of the subject property for up to 670 residential equivalent units. The Settlement Agreement also stated that there was no time frame in which the Walker property was required to commence or complete development, and that the property was vested in perpetuity. On August 7, 1991, the Settlement Agreement was filed with DOAH. On August 8, 1991, an Order Approving Stipulation and Final Settlement Agreement was entered. Therefore, an administrative hearing was never held on Application V.R.0195T. Walker's application was one of hundreds of vested rights applications being processed by the City at that time. Although many of the specific details underlying the City's decision to approve the settlement are not known now because of the passage of time, the subsequent loss by the City of Walker's application file, and the sheer number of applications then being processed, the City Attorney is certain that he would have known about the petition and the underlying facts before he authorized the Assistant City Attorney to execute the agreement. Based on the information then available, the City Attorney now says that Walker clearly qualified for either common law or presumptive vesting. Petitioners contend that the Assistant City Attorney (and/or City Attorney) lacked authority to settle the case without obtaining specific prior authority from the City Commission; however, the more credible and persuasive evidence shows otherwise. This is true even though the Ordinance does not specifically address the settlement of vested rights cases. The City Attorney's policy is and has been to involve the affected City staff in settlement negotiations rather than negotiating without the consent of his client. Moreover, the present City Attorney, and his two predecessors, have always considered it a part of their inherent authority to settle litigation on the City's behalf when it is in the best interest of the City to do so. The only exception to this inherent authority is when there is a budgetary impact; in those cases, prior approval must be obtained before committing the City to spending money. Here, however, there was no fiscal impact resulting from the Walker settlement. Further, at no time after the Settlement Agreement was signed has the City Commission ever expressed its disagreement with the City Attorney's interpretation of the Ordinance, taken steps to curtail his inherent authority, or acted to vacate the Settlement Agreement. Therefore, in the absence of any credible evidence to the contrary, it is found that the Assistant City Attorney, after consultation with the City Attorney and appropriate City staff, had the authority to execute the Settlement Agreement on behalf of the City without prior City Commission approval. Petitioners also contend that based upon the language in Section III.3.e.7. of the Ordinance, there was no authority for the hearing officer to approve the Settlement Agreement until a substantive review of the information which formed the basis for the agreement had been made. The cited provision sets forth the criteria upon which the decision of the hearing officer in a vested rights case must be based. They include an evidentiary presentation by the parties at a formal hearing, adherence to certain land use guidelines and relevant case law, and a recommended order at the conclusion of the proceeding. The City points out, however, that under its interpretation of the Ordinance, once the parties learned that the property was exempt and the dispute had been settled, the criteria in Section III.3.e.7. did not apply. In those situations, no useful purpose would be served in requiring the parties to go through the formality of a de novo hearing. Otherwise, the parties (including the taxpayers) would be required to expend time, resources, and energy to litigate a matter in which no material facts were in issue. Accordingly, the City's interpretation of the Ordinance is found to be the most logical and reasonable, and it is found that the DOAH hearing officer had the authority to accept the parties' settlement without conducting a hearing. Petitioners next contend that when the Settlement Agreement was executed, the City lacked sufficient evidence to show that Walker had installed the infrastructure necessary for presumptive vesting. More specifically, they assert that except for Wayne Colony's affidavit, and the letter from the City, there was no evidence to support that determination. Petitioners go on to contend that not only must the primary roadways and water and sewer lines be built before the vesting cut-off date, but the "on-site" water and sewer lines, stormwater facilities, and other facilities necessary to begin vertical construction on each apartment building must also be in place. This contention is based on Section III.1.a.1. of the Ordinance which requires that in order for a subdivision to attain exempt status, the "streets, stormwater management facilities, utilities, and other infrastructure required for the development must have been completed as of July 16, 1990." The City Attorney's testimony on this issue is found to be the most persuasive. According to his interpretation of the Ordinance, only that infrastructure necessary to serve the subdivision must be completed in order to qualify for vesting. Conversely, on-site or private infrastructure does not have to be completed in order to satisfy the terms of the Ordinance. Therefore, on-site infrastructure is not a factor in determining whether a property qualifies for an exempt status. Indeed, as the City Attorney points out, if Petitioners' interpretation of the Ordinance were accepted, there would be "no vested lots in the City" since infrastructure is never extended from the public street to the lot prior to its development. Finally, Petitioners contend that the Settlement Agreement is invalid because Walker's application in DOAH Case No. 91-4109VR was for common law vesting while the Settlement Agreement made a determination that the property was presumptively vested. As a practical matter, there is no difference between property being exempt or being vested. Under either category, the property would not have to meet the requirements of the Comprehensive Plan. Here, the evidence shows that Walker's property qualified for both common law and presumptive vesting. Since the two types of vesting have the same practical effect, the validity of the Settlement Agreement has not been impaired. Expiration of vested rights Sections II.5.a., d., and i. of the Ordinance provide, respectively, that for purposes of a vested rights determination, an "[e]xempt subdivision," "[f]inal subdivision plat approval," or "[a]ny other development order which approved the development of land for a particular use or uses at a specified intensity of use and which allowed development activity on the land for which the development order was issued" shall be deemed a final development order. Section IV.1.c. of the Ordinance provides that "[a]ll final development orders shall expire in one year or such shorter time as may be adopted unless it is determined that substantial development has occurred and is continuing in good faith." Petitioners argue that the Settlement Agreement constitutes a "development order" within the meaning of the foregoing provisions of the Ordinance, and because no activity has occurred on the land since the Settlement Agreement was approved in 1991, the development order has expired by operation of the law. For the following reasons, this contention has been rejected. The Settlement Agreement did not approve "the development of land for a particular use or uses at a specified intensity of use" and did not allow "development activity on the land." Further, it did not allow the owner to pull building permits and commence development on his land. Rather, it simply determined which set of rules and regulations (pre-1990 or post-1990) Walker had to comply with in order to develop his property. Therefore, it cannot be "[a]ny other development order which approved the development of land for a particular use or uses at a specified intensity of use and which allowed development activity on the land for which the development order was issued." At the same time, a recorded subdivision such as Glenwood Estates is "complete" since all necessary infrastructure is in place. It has no expiration date, and no further development remains to be done to show "continuing good faith," as that term is used in the Ordinance. Therefore, even if the Walker property technically meets the definitions of an "exempt subdivision" or a "final subdivision plat approval," the expiration provisions of the Ordinance still do not apply. Finally, the City has never applied the expiration provisions of the cited provision to terminate the exempt status of a recorded subdivision, nor has it construed a vested rights determination as being a "final development order" within the meaning of the Ordinance. This interpretation of the Ordinance is found to be reasonable, and it is hereby accepted. Equitable estoppel As noted earlier, when Walker sold the Meadowbrook tract (69 acres) to Collins Brothers in 1972, he made the sale contingent on his obtaining not only residential zoning for the Meadowbrook tract, but also upon obtaining commercial and multi-family zoning on the remainder of the tract. Thus, he sold the site in reliance on his ability to develop the remainder of the tract in conformance with his master plan. As a part of that sale, Walker gave the purchasers credit towards the purchase price to defray one-half of the cost of installing the infrastructure for the entire 100-acre parcel, again in reliance on his ability to develop the property. When Collins Brothers defaulted, he paid the successor developer (Guardian) the money necessary to defray one-half of the cost of the communal infrastructure, and he paid additional funds for water and sewer taps and a storm drain, again in reliance on his ability to develop the property. Walker also petitioned the City to annex his property in the early 1980's based on a representation by the City that the annexation would not affect his ability to develop his property. After the annexation, Walker has continued to pay property taxes to the City based upon the value of the property to be developed under the property's C-1 and RM-2 zoning. In addition, Walker encumbered his property to secure loans in reliance on his ability to develop it in accordance with the terms of the Settlement Agreement. After the Settlement Agreement was approved, the City adopted a site-specific zoning plan which impacted Walker's property. Walker agreed to reduce the maximum density he might otherwise have obtained through litigation in reliance upon the City's representation that the Settlement Agreement remained in effect and that his rights under that Agreement would survive in perpetuity. Finally, Walker has entered into an option contract for the sale of his property to TTK based upon the validity of the Settlement Agreement. He has also expended substantial monies to further that sale and to develop his site plan. Other contentions Petitioners have also contended in their Proposed Recommended Order that "[t]he creation of new lots through the re-subdivision of the parent parcel [in 1989] subjects the property under review to the consistency and concurrency provisions in the City's 2010 Comprehensive Plan." Because this contention was not raised in the initial pleading or in the parties' Joint Pretrial Statement, it has been disregarded. Finally, the Association points out that multiple three-story apartment buildings will be constructed immediately adjacent to single-family homes in the Association with only an 8-foot fence and a 30-foot setback dividing the two areas. In addition, its members logically fear that the project will generate additional traffic, crime, and pollution and result in the lowering of property values in the neighborhood. It also asserts that the developer has never been willing to sit down with neighborhood members and attempt to compromise on any design aspect of the apartment complex. While these concerns are obviously legitimate and well- intended, they are not relevant to the narrow issues raised in this appeal.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Tallahassee-Leon County Planning Commission enter a final order granting the Type B site plan review application filed by George K. Walker which determined that his property is presumptively vested. DONE AND ENTERED this 8th day of February, 2001, in Tallahassee, Leon County, Florida. ___________________________________ DONALD R. ALEXANDER 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 8th day of February, 2001. COPIES FURNISHED: Kenneth D. Goldberg, Esquire 1725 Mahan Drive, Suite 201 Tallahassee, Florida 32308-5201 Linda R. Hurst, Esquire City Hall, Second Floor 300 South Adams Street Tallahassee, Florida 32301-1731 Jay Adams, Esquire Broad and Cassel 215 South Monroe Street, Suite 400 Tallahassee, Florida 32301-1804 Jean Gregory, Clerk Tallahassee-Leon County Planning Commission City Hall 300 South Adams Street Tallahassee, Florida 32301-1731
The Issue The issue to be determined in this case is the amount of reasonable attorney’s fees to be paid to the Department of Economic Opportunity (“DEO”) by Respondents.
Findings Of Fact Ms. Thomas and Mr. Shine were the agency attorneys who worked on the appeal. Ms. Thomas reviewed the record on appeal, reviewed the papers filed in the appellate court, filed a notice of appearance, researched legal issues associated with the agency’s Notice of Limited Joinder in Answer Brief, and discussed the case with other attorneys. Ms. Thomas spent seven hours working on the case. Mr. Shine reviewed the record on appeal, reviewed the papers filed in the appellate court, filed a notice of appearance, researched legal issues associated with the agency’s answer brief, and discussed the case with other attorneys. Mr. Shine spent six hours working on the case. Ms. Thomas and Mr. Shine did not file a brief or participate in oral argument. DEO is demanding payment of $3,900 as the total of its reasonable attorney’s fees, which was computed by multiplying 13 hours by an hourly rate of $300. As discussed in the Conclusions of Law, the criteria listed in Rule 4-1.5 of the Rules Regulating the Florida Bar must be used to determine the reasonable attorney’s fees in this case. Rule 4-1.5(b)(1)A The criterion in Rule 4-1.5(b)(1)A is “the time and labor required, the novelty, complexity, and difficulty of the questions involved, and the skill requisite to perform the legal service properly.” The legal work was not complex, but it required specialized skill in land use law. DEO claims the standing issue in the case on appeal was complex. To the contrary, the First District Court of Appeal awarded attorney’s fees to the appellees because the court determined that appellants and their counsel knew or should have known that no material facts provided a basis for Respondent’s standing. Likewise, the agency’s counsel knew or should have known. The evidence presented did not show that the labor of both Ms. Thomas and Mr. Shine was required. Their work was, in large part, redundant. Furthermore, Ms. Thomas had only a vague recollection of much of her work. The work of Mr. Shine, alone, would have been sufficient to accomplish the agency’s purposes and efforts in the appeal. Rule 4-1.5(b)(1)B The criterion in Rule 4-1.5(b)(1)B is “the likelihood that the acceptance of the particular employment will preclude other employment by the lawyer.” There was no evidence presented regarding this criterion to be considered in determining reasonable fees. Rule 4-1.5(b)(1)C The criterion in Rule 4-1.5(b)(1)C is “the fee, or rate of fee, customarily charged in the locality for legal services of similar nature.” DEO presented the testimony of Joseph Goldstein, a land use lawyer who practices in the Miami offices of the law firm of Holland and Knight. It was Mr. Goldstein’s opinion that the customary hourly rate in the Tallahassee area at the relevant time was $300.1/ Respondents did not present expert testimony to refute Mr. Goldstein’s opinion. There is no other evidence in the record regarding a reasonable hourly rate. Rule 4-1.5(b)(1)D The criterion in Rule 4-1.5(b)(1)D is “the significance of, or amount involved in, the subject matter of the representation, the responsibility involved in the representation, and the results obtained.” The case on appeal had moderate significance and the responsibility involved was moderate. The results obtained were not unusual. The novelty in the appellate case was the award of attorney’s fees, but the agency attorneys had nothing to do with the award. In fact, they opposed the award. Rule 4-1.5(b)(1)E The criterion in Rule 4-1.5(b)(1)E is “the time limitations imposed by the client or by the circumstances and, as between attorney and client, any additional time demands or requests of the attorney by the client.” There was no evidence presented regarding this criterion that should be considered in determining reasonable fees. Rule 4-1.5(b)(1)F The criterion in Rule 4-1.5(b)(1)F is “the nature and length of the professional relationship with the client.” There was no evidence presented regarding this criterion to be considered in determining reasonable fees. Rule 4-1.5(b)(1)G The criterion in Rule 4-1.5(b)(1)G is “the experience, reputation, diligence, and ability of the lawyer or lawyers performing the service and the skill, expertise, or efficiency of the effort reflected in the actual providing of such service.” The agency lawyers had specialized skill in land use law, but the case did not require unusual diligence or effort. Rule 4-1.5(b)(1)H The criterion in Rule 4-1.5(b)(1)H is “whether the fee is fixed or contingent, and, if fixed as to amount or rate, whether the client’s ability to pay rested to any significant degree on the outcome of the representation.” The fee was fixed because it was based on fixed salaries, but it did not rest on the outcome of the appeal.
The Issue Whether the Appellant, Devoe L. Moore, has demonstrated, by a preponderance of the evidence, that development rights in certain real property he owns have vested against the provisions of the Tallahassee-Leon County 2010 Comprehensive Plan?
Findings Of Fact The Property at Issue. On September 18, 1987, Devoe Moore acquired a tract of approximately 28 acres of real estate (hereinafter referred to as the "Property"), located on Lake Bradford Road just south of Gaines Street, in the City of Tallahassee, Leon County, Florida. The Property was the former location of the Elberta Crate and Box Company. The Property was at the time of purchase, and still is, zoned M-2, Industrial. Development of the Property. Mr. Moore intended to develop the Property consistent with the Property's M-2, Industrial zoning. Mr. Moore intended to build a service/commercial/mini-storage development similar to another such development of Mr. Moore in the City. In December, 1987, Mr. Moore had his engineer prepare grading and drainage plans for the Property. On January 29, 1988, Mr. Moore had an application for an amendment to a stormwater permit, Environmental Management Permit 87-1087, filed with the Leon County Department of Public Works. At that time, Leon County issued such permits for property in unincorporated areas and inside the City's limits. The grading and drainage plans for the Property were filed with the application. Leon County had not been delegated any responsibility or authority to make land-use decisions for the City. The requested amendment to Permit 87-1087 was based on an assumption of Mr. Moore that the Property would consist of 80% coverage with impervious surface. Therefore, the City was aware or should have been aware that Mr. Moore intended to construct a major development on the Property. Such a development was consistent with the zoning on the Property at the time. Neither Leon County nor the City, however, approved or in anyway addressed the issue of whether 80% coverage of the Property with impervious surface was acceptable. Nor did the City or Leon County make any representation to Mr. Moore different from that made by the City's zoning of the Property. Mr. Moore filed a site plan showing a development of 80% coverage with the application for amendment to Permit 87-1087. These plans showed a development consisting of thirteen rectangular buildings, driveways and parking area. The indicated development, however, was not reviewed or in anyway approved by Leon County or the City. On May 6, 1988, a Stormwater Permit, amending Permit 87-1087, was issued to Mr. Moore. This permit only approved the construction of a holding pond and filling on the Property. The issuance of the permit did not constitute approval of any proposed development of the Property. In 1988, Mr. Moore began clearing the Property of buildings on the Property which the City had condemned. Mr. Moore also began filling and grading the Property in 1988, and has continued to do so to varying degrees through July 16, 1991. From January 1989, through August, 1990, SANDCO placed 1,174 loads of fill on the Property. Jimmy Crowder Construction Company has also performed filling and grading work on the Property since 1988. As of the date the City's vesting ordnance was adopted and as of the date of the hearing before the Division of Administrative Hearings Mr. Moore has not completed filling on the Property. Mr. Moore also has not completed filtration improvements to the storm water hold pond to be constructed on the Property. Additional water treatment facilities on the Property must be constructed to handle runoff from the Property. No roadways, water services, sewer services or electric services have been constructed on the Property. Site preparation on the Property has not been completed so that construction of vertical improvements can begin. At the time that Mr. Moore acquired the Property, only building permits were required for the development of the Property. The evidence failed to prove that Mr. Moore obtained the required building permits. The law was changed, however, to require approval of a site plan. Mr. Moore decided not to submit a site plan at least in part because of the City's work on the sewer main. The weight of the evidence, however, failed to prove that Mr. Moore was prohibited by the City from obtaining site plan approval. The City has not approved or reviewed a site plan for the Property. At the time Mr. Moore purchased the Property, and continuing to the present, a City sewer main which runs along the southern border of the Property has been a problem. The sewer main is a health hazard because it is located in proximity to the surface of the ground and it has numerous leaks. The City indicated that it intended to build a new sewer main across the Property and Mr. Moore agreed to give the City an easement for the sewer main. After Mr. Moore purchased the Property and before February, 1989, Mr. Moore made a number of requests to the City that the City identify the easement it desired and prepare the easement grant so that the City could construct the new sewer main and Mr. Moore could proceed with his development. Requests were also made by some City employees of the City Attorney that the easement be prepared and executed because of the problem with the existing sewer main. In April, 1989, the easement grant was prepared and executed. On August 3, 1990, James S. Caldwell, Assistant Director of the City Water and Sewer Department, wrote the following letter to Mr. Moore: It has been brought to my attention that your are proceeding with construction of a stormwater holding pond on the referenced site [the Elberta Crate Site]. As discussed with you this date and as you are aware, the City has a sewer line on this property. The sewer line would be damaged by your construction activity. The City has designed a relocation and upgrade of the sewer line to be constructed on an easement previously acquired from you. Our schedule for the sewer line construction is completion by January 1, 1991. A review of your stormwater holding pond drawings and the proposed sewer line reveals a potential conflict between the proposed line and the holding pond. We shall have City staff stake out and flag the existing sewer line and the proposed sewer line. We are requesting that your construction activity stay away from the existing sewer line. After stakeout of the proposed sewer line, you may check your stormwater pond plans to assure that there is no conflict. [Emphasis added]. Mr. Moore was also told on other occasions to avoid interfering with the existing sewer line and the construction of the new sewer line. Construction of the new sewer main on the Property was not commenced until January, 1991. The construction had not been completed as of March, 1991. Part of the delay in completing the sewer main was caused by contemplated changes in the location of the sewer main and the possible need for a different easement. The weight of the evidence failed to prove that Mr. Moore was told to cease all activity on the Property. Costs Incurred by Mr. Moore. Mr. Moore paid approximately $1,000,000.00 for the Property. The weight of the evidence failed to prove that this cost was incurred in reliance upon any representation from the City as to the use the Property could be put other than the existing zoning of the Property. Mr. Moore spent approximately $247,541.22, for demolition of existing buildings, site clearing and grading, engineering costs, fill, permitting fees and partial construction of the stormwater management system for the Property. Mr. Moore also donated an easement to the City with a value of approximately $26,000.00. The weight of the evidence failed to prove that these expenditures were made in reliance upon any representation by the City as to the use to which the Property could be put other than the existing zoning of the Property and the stormwater management permit. Mr. Moore also incurred approximately $100,000.00 in expenditures similar to those addressed in the previous finding of fact for which Mr. Moore was unable to find documentation. The weight of the evidence failed to prove that these expenditures were made in reliance upon any representation by the City as to the use to which the Property could be put other than the zoning of the Property and the stormwater management permit. Development of the Property Under the 2010 Comprehensive Plan. Mr. Moore's proposed development of the Property appears to meet the concurrency requirements of the Tallahassee-Leon County 2010 Comprehensive Plan. Mr. Moore's proposed development of the Property, however, appears to be inconsistent with the 2010 Plan because the Future Land Use Element district in which the Property is located does not permit industrial uses and the intended industrial use of the Property is incompatible with some of the uses to which adjacent property has been put. Procedure. Mr. Moore filed an Application for Vested Rights Determination prior to the filing of the application at issue in this proceeding. That application was denied by the City on October 16, 1991. In the first application Mr. Moore indicated that the Property was to be used for student housing. On or about November 13, 1991, Mr. Moore filed an Application for Vested Rights Determination (hereinafter referred to as the "Application") (Application VR0295T), with the City. "Devoe L. Moore" was listed as the owner/agent of the Property in the Application. It is indicated that the project at issue in the Application is "[i]ndustrial development of former Elberta Crate and Box Company site by Devoe L. Moore." "Progress . . . Toward Completion" is described as (1) Owner/contractor estimate; (2) Environmental Management Permit; (3) Site preparation from December, 1987, to the date the Application was filed; and (4) Construction of the stormwater system in 1990. In a letter dated February 6, 1991, Mr. Moore was informed that his Application was being denied. By letter dated February 18, 1991, Mr. Moore requested a hearing before a Staff Committee for review of the denial of his Application. On March 11, 1991, a hearing was held to consider the Application before the Staff Committee. The Staff Committee was comprised of Jim English, City Attorney, Mark Gumula, Director of the Tallahassee-Leon County Planning Department and Buddy Holshouser, Director for the City's Growth Management Department. At the conclusion of this hearing the Staff Committee voted 2 to 1 to deny the Application. By letter dated March 19, 1991, Mark Gumula, Director of Planning of the Tallahassee-Leon County Planning Department, informed Mr. Moore that the Application had been denied. By letter dated April 4, 1991, to Mr. Gumula, Mr. Moore appealed the decision to deny the Application. By letter dated July 3, 1991, the Division of Administrative Hearings was requested to provide a Hearing Officer to review this matter. By agreement of the parties, the undersigned allowed the parties to supplement the record in this matter on August 27, 1991. F. Other Projects Approved by the City. Mr. Moore submitted, without objection from the City, other vesting rights applications and final orders concerning such applications which were ultimately approved by the City. All of those cases are distinguishable from this matter. See the City's proposed finding of fact 30.
The Issue The issue is whether Petitioner is entitled to the previously unclaimed property held by Respondent in the form of cash realized from the sale of 24 shares of AT&T.
Findings Of Fact Originally residents of New Hampshire, the now-deceased Flora and William Keniston vacationed annually in Tampa. During their visits, they became good friends with Herman Ortmann. At some point, Mr. Ortmann suggested to Mr. and Mrs. Keniston that they share his home with him--rent-free--during their annual September-to-April stay in Florida. The Kenistons accepted his suggestion and, for five or six winters, occupied Mr. Ortmann's home, which is located at 3102 Paul Avenue. Mr. Ortmann died on March 8, 1966. In his will, Mr. Ortmann left five dollars to his son and the residue of his estate to Petitioner, who was his cousin. On December 19, 1966, Petitioner, as executrix of Mr. Ortmann's estate, conveyed all interest in the Paul Avenue property to Mr. Keniston for $5500. On the same date, Mr. Keniston conveyed the fee simple interest in the Paul Avenue property, subject to a life estate in himself, to Petitioner and her husband. After the sale of the Paul Avenue property, Petitioner helped the Kenistons, who did not have a car, with many chores, such as taking them to buy groceries, attend church, and get hair cuts. On November 15, 1975, Mr. Keniston died. Following Mr. Keniston's death, Petitioner helped Mrs. Keniston, who no longer had a legal interest in the Paul Avenue property, find a new residence in a home shared by several unrelated adults of similar age. Petitioner testified that Mrs. Keniston lived several years in this home; however, her death certificate states that she died on October 4, 1976-- less than one year after the death of her husband. By operation of law, Petitioner and her husband acquired the fee simple interest in the Paul Avenue residence upon Mr. Keniston's death, and Petitioner remains in the house today. When Mrs. Keniston moved from the Paul Avenue property, she handed Petitioner two certificates evidencing ownership of 12 shares, each, in American Telephone and Telegraph Company (ATT). Mrs. Keniston instructed Petitioner to use these stock certificates to pay for Mrs. Keniston's funeral and "keep the rest." However, Mrs. Keniston, who was the sole registered owner of both certificates, never executed any instrument transferring an interest in these certificates to Petitioner. After delivering the certificates to Petitioner, Mrs. Keniston continued to receive and cash her monthly dividend checks of approximately $28. After Mrs. Keniston's death, Petitioner bought her a casket and paid for the funeral, at a total cost of about $3000. Petitioner retained the original stock certificates, but, after obtaining legal advice, determined that the she could not sell the certificates due to the absence of an assignment. Petitioner did not file a claim against the estate of Mrs. Keniston for reimbursement of the $3000, and Petitioner has not otherwise been reimbursed for these expenses. Petitioner has retained the original stock certificates. At some point, ATT transferred either the stock-- presumably by replacement stock certificates--or its cash equivalent to Respondent as unclaimed property; the value of the property at the time of the transfer was $1154.70. If ATT transferred the stock to Respondent, Respondent has since sold it. Either way, Respondent maintains the cash derived from the sale of the ATT stock in a noninterest-bearing account. Due to periodic payments received since its transfer to Respondent-- probably dividend payments earned prior to Respondent's sale of the stock--the current value of the account is $3081.04 (Account). Mrs. Keniston died intestate. By Order of Summary Administration entered May 24, 2000, the Hillsborough County Circuit Court, Probate Division, ordered an immediate distribution among four persons of Mrs. Keniston's assets, which consist of the Account. The order states that all interested persons were served with notice of the hearing or waived notice of the hearing, even though neither Petitioner nor Respondent seems to have received notice of the hearing. The order acknowledges that Respondent holds the Account and authorizes persons holding any property of the decedent to transfer it, pursuant to the order. On June 16, 2000, the representative of the four heirs named in the probate order filed with Respondent a claim of ownership of the Account. On June 1, 2000, Petitioner filed with Respondent a claim of ownership of the Account. Determining that Mrs. Keniston was the actual owner of the Account, Respondent concluded that her four heirs were entitled to the Account. On May 8, 2001, Respondent filed with the probate court a Motion to Vacate Order and Reopen Summary Administration. The probate court had not taken any additional action by the time of the final hearing in this case.
Recommendation RECOMMENDED that the Department of Banking and Finance enter a final order awarding the Account to Petitioner. DONE AND ENTERED this 14th day of June, 2001, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 June, 2001. COPIES FURNISHED: Honorable Robert F. Milligan Office of the Comptroller Department of Banking and Finance The Capitol, Plaza Level 09 Tallahassee, Florida 32399-0350 Robert Beitler, General Counsel Department of Banking and Finance Fletcher Building, Suite 526 101 East Gaines Street Tallahassee, Florida 32399-0350 Denise Douglas Qualified Representative 2616 Jetton Avenue Tampa, Florida 33629 Staci A. Bienvenu Assistant General Counsel Department of Banking and Finance Fletcher Building, Suite 526 101 East Gaines Street Tallahassee, Florida 32399-0350 Linda Dunphy, Esquire Post Office Box 16008 West Palm Beach, Florida 33416
