The Issue Whether the Petitioner, H.A.P. Partnership, 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. The Petitioner, H.A.P. is a general partnership. The partners of the Petitioner are Billy G. and Jeanette Smith, Earl and Marie Womble, Mr. W. H. Sharp, Larry and Hilda Strom and Charles and Margaret Fulton. The Petitioner's address is 5174 Maddox Road, Tallahassee, Florida. In May, 1985, the Petitioner purchased approximately 3.1 acres of land, Tax Identification No. 21-04-20-409 (hereinafter referred to as "Parcel 1"). Parcel 1 is located at 4015 North Monroe Street, Leon County, Florida. At the time of purchase by the Petitioner, Parcel 1 was zoned R-3, single and two-family residential. Under R-3 zoning, a maximum of 7.2 units per acre of land could be constructed. Parcel 1 was purchased by the Petitioner from Billy Hatcher. In December, 1986, the Petitioner purchased an adjoining parcel of property consisting of approximately 3.5 acres, Tax Identification No. 21-04-20- 408 (hereinafter referred to as "Parcel 2"). Parcel 2 is located at 3969 North Monroe Street, Leon County, Florida. Parcel 2 was zoned R-3 at the time of its purchase by the Petitioner. Parcel 2 was purchased by the Petitioner from Marie Bannerman. Development of the Property; Prior to the Petitioner's Purchase. The previous owner of Parcel 1, Billy Hatcher, had retained Poole Engineering to develop plans for site location on Parcel 1, of multi-family dwellings. A stormwater management permit, number 4241, was issued by Leon County to Mr. Hatcher on June 25, 1984. Mr. Hatcher also obtained a permit from the State of Florida Department of Transportation for a driveway onto Parcel 1 from North Monroe Street. The permit was approved June 12, 1984. No permits were obtained from Leon County or any other entity for Parcel 2 prior to the Petitioner's purchase of Parcel 2. The Petitioner relied upon the zoning on Parcel 1 and 2 and the permits that had been issued with regard to Parcel 1 at the time that the Petitioner purchased Parcel 1 and Parcel 2. Parcel 1 and 2 would not have been purchased otherwise. Development of the Property; Subsequent to the Petitioner's Purchase. In November, 1987, the Petitioner retained PVC Corporation to plan the development of Parcel 1 and Parcel 2 (hereinafter referred to as the "Property"), and to provide project management services for the development of multi-family residences on the Property. Consistent with R-3 zoning, PVC Corporation proposed a development consisting of 42 units on the 6.6 acres of the Property. In the Summer of 1989, the Petitioner sought a change in zoning for the Property. The Petitioner's request to have the Property zoned commercial was denied by Leon County. No permits were obtained from Leon County or any other entity for the Property subsequent to the Petitioner's purchase of the Property. Except for the stormwater management permit, no other permits were obtained from Leon County by the Petitioner and no request for building permits, plots or site plans were submitted to Leon County. Development of the Property was not commenced by the Petitioner. Alleged Change in Position or Obligations and Expenses Incurred. The total purchase price for Parcel 1 was $156,000.00. The total purchase price for Parcel 2 was $110,000.00. The Petitioner paid a total of $106,572.87 in interest on the Property, $15,109.67 in real property taxes and $2,300.00 in engineering fees. Vadden Shadden, M.A.I., appraised the Property on January 18, 1988, prior to the effective date of the 2010 Comprehensive Plan, at a value of $417,500.00. On November 3, 1990, Mr. Shadden appraised to value of the Property to be $41,750.00, taking into account compliance with the 2010 Comprehensive Plan. Development of the Property under the 2010 Plan. Under the 2010 Comprehensive Plan, the Property is located in an area designated as Lake Protection Land Use. Property in the Lake Protection Land Use category may be developed by the construction of one dwelling unit for residential purposes per two acres, plus minor commercial uses (retail but not office uses) of up to 20,000 gross square feet. Site plan approval for all commercial property over five acres is required by the Leon County Subdivision Regulations. Procedure. On or about November 12, 1990, the Petitioner filed an Application for Vested Rights Determination (hereinafter referred to as the "Application"), with Leon County. By letter dated February 26, 1991, from Mark Gumula, Director of Planning of the Tallahassee-Leon County Planning Department, the Petitioner was informed that the staff of the Tallahassee-Leon County Planning Department had recommended that the Application be denied. Mr. Gumula also informed the Petitioner that a hearing before a Staff Committee could be requested. Charles Fulton, general partner of the Petitioner, informed Leon County that the Petitioner waived its right to a hearing before the Staff Committee and requested a formal hearing before a Hearing Officer. By letter dated March 19, 1991, the Division of Administrative Hearings was requested to provide a Hearing Officer to conduct a formal hearing in this case.
Findings Of Fact The Subject Property. The property at issue in this proceeding consists of approximately 92 acres of land located in Clay County, Florida. The subject property is known as "Ranch Acres." Ranch Acres was subdivided into 49 lots by an unrecorded subdivision plat. The lots range in size from approximately 1.1 to 2.9 acres. Roads, which are unpaved, and drainage for Ranch Acres are privately owned. A boundary survey of Ranch Acres was prepared and contains a surveyor's certification of April 20, 1982. Pre-1985 Subdivision Regulations of Clay County. Prior to September of 1985 Clay County did not require platting of subdivisions such as Ranch Acres. In September of 1985, Clay County adopted Ordinance 85-68 creating three types of subdivisions and providing regulations thereof. An exception to these requirements, however, was included in Ordinance 85-68: subdivisions shown on a certified survey prior to September of 1985 with lots and roads laid out would continue to not be subject to regulation so long as the lots continue to comport with the survey. Government Action Relied Upon Before the Applicant's Sale of the Property. The Applicant was aware that it could develop Ranch Acres as an unrecorded subdivision in Clay County. The development of Ranch Acres comes within the exception to Ordinance 85-58. In a letter dated December 19, 1988 the Administrator of the Clay County Planning & Zoning Department informed the Applicant that Ranch Acres' "appears to be a valid unrecorded subdivision." The Administrator went on to state, in relevant part, the following: As a result of this "loophole" the subdivision does not have to meet the minimum general design standards set forth in the county ordinance. In addition it does not have to meet other guarantees and criteria established in the ordinance. . . . . The land use and the size of the lots do conform with county regulations. . . . A similar letter was sent to the Applicant by the Director of Engineering of Clay County on or about June 18, 1990. The Applicant's Detrimental Reliance. The Applicant provided dirt roads and drainage to Ranch Acres. The roads were constructed during the early 1980's and the drainage was constructed in approximately 1986. The costs of improvements to Ranch Acres incurred by the Applicant was approximately $30,000.00. Rights That Will Be Destroyed. If the Applicant must comply with the Clay County comprehensive plan it will be required to pave the roads of the subdivision and improve drainage. The Applicant will not be able to continue to develop the property under the Clay County comprehensive plan because the plan allows development of land such as Ranch Acres on a minimum of ten acre lots. The Applicant cannot subdivide the remaining lots of Ranch Acres that have not been sold into ten acre lots. Procedural Requirements. 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.
The Issue Whether the Respondent is guilty of misrepresentation, false promises, false pretenses, dishonest dealing, trick, scheme or device in a real estate transaction in violation of Section 475.25, Florida Statutes. Whether the license of Respondent should be revoked or suspended or whether the Respondent should be otherwise disciplined.
Findings Of Fact Respondent is a registered real estate salesperson who holds license no. 0075657. He was employed as a "listing solicitor" by World Wide Property Services, Inc., a registered real estate broker (now dissolved) from August 7, 1975 through April 23, 1976, soliciting listings for real estate in Florida. The solicitation was by telephone nationwide except Florida. Seymour L. Rottman was President of World Wide Property Services, Inc. and Lee Small was Vice President of the corporation during the time Respondent was employed. The purpose of World Wide Property Services, Inc. was to secure listings of and purchasers for various Florida properties. Mr. Rottman was a subpoenaed witness for Petitioner at subject hearing. During Respondent's period of employment he and Mr. Small were in charge of hiring salesmen for the company and hired Respondent. Respondent was employed to obtain listings by telephone from property owners who lived out of state but owned Florida property. The procedure followed was for a salesman to call an out of state land owner picked from a list of prospects and inquire if he or she would be interested in selling their property at a higher price than it had been purchased for. This was termed a "front" call and the salesman was termed as a "fronter". If the prospect expressed interest in listing the property, his or her name was provided to World Wide Property Services, Inc. who then mailed literature to the property owner describing the efforts that would be made by that organization to sell the property. Enclosed with this material was a listing and brokerage agreement. This agreement provided that the owner of the property would pay a prescribed listing fee to World Wide Property Services, Inc. which would be credited against a 10 percent commission due that firm upon sale of the property. In return, the corporation agreed to include the property in its "listing directory" for a one year period, direct its efforts to bring about a sale of the property, advertise the property as deemed advisable in magazines or other mediums of merit, and to make an "earnest effort" to sell the property. The accompanying literature explained that the listing fee was necessary in order to defray administrative costs of estimating the value of the property, merchandising, advertising, brochuring and cateloging the information. The material also stated that advertising would be placed in various foreign countries and cities of the United States. In addition, it stated that the property would be "analyzed", comparing it to adjacent property to arrive at a price based on recent sales of neighboring property and also review the status of development and zoning in the immediate area of the property to assist in recommending a correct selling price for approval by the owner. During the course of the calls to prospects Respondent advised them that the property would be advertised internationally and in the United States and that bona fide efforts would be made to sell the property. She represented herself as a salesman for that organization. After the promotional literature was sent to the prospect, the salesmen including Respondent, made what was called a "drive" call to answer any questions and to urge that the property be listed. After making these calls Respondent had no further contact with the property owner. The listing fee was $325. The salesmen received approximately one-third of the fee, about $100 per listing. The salesmen, including Respondent, telephoned the prospects and then read from the script entitled "front" and "drive". The instructions from the broker was to stay within the script but Respondent was not monitored at all times. During the course of operation of less than a year World Wide Property Services, Inc. secured about 200 listings and grossed approximately $80,000 to $90,000 in the "advance fee" listings, but no sales were made. Respondent made no sales but did secure a limited number of listings making approximately $250 - $400 during the time of his employment. Respondent testified that he had worked for another corporation that took advance fees. The reading from the script heretofore referred to as "front" and "drive" was usually done by someone else. Respondent did not attempt to make sales inasmuch as it was not the job for which he was employed. He stated that he told the clients the "advance fee" was for expenses and did not tell them that part of it would be his commission. He was a personal friend of the President of World Wide Property Services, Inc., but had no supervisory capacity in the corporation for which he worked. He stated that calling a person back and increasing the amount previously mentioned by 10 percent would put "just a little zip into it. This has been done ever since I have been in the real estate business." Petitioner contends: that while a salesman for World Wide Property Services, Inc. Respondent solicited and obtained listings by telephone of property owners and that as an inducement to list the property, falsely represented that the property could be sold for a price far in excess of its purchase price; that a bona fide effort would be made to sell the property and that it would be listed nationally and internationally and that the company had foreign investors wanting to purchase United States property. Respondent contends: that he never misrepresented or fraudulently induced any potential customer to send in advance fees because he operated as others do in the real estate business and the property was salable and he thought foreign investors were interested.
Recommendation Reprimand the Respondent in writing. DONE AND ENTERED this 21st day of June, 1978, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Salvatore A. Carpino, Esquire Sanford Scott Rothman Florida Real Estate Commission 425 Surfside Boulevard Post Office Box 1900 Surfside, Florida 33154 Orlando, Florida 32801 ================================================================= AGENCY FINAL ORDER ================================================================= FLORIDA REAL ESTATE COMMISSION FLORIDA REAL ESTATE COMMISSION, Petitioner, PROGRESS DOCKET NO. 3101 vs. DADE COUNTY DOAH CASE NO. 77-1573 SANFORD SCOTT ROTHMAN, Respondent. /
The Issue Whether the Appellant, Edward M. Mitchell, has demonstrated that development rights in certain real property he owns have vested against the provisions of the 2010 Comprehensive Plan?
Findings Of Fact The Property at Issue. On or about September 23, 1980, Mr. Mitchell entered into an agreement to purchase 6.141 acres of property (hereinafter referred to as the "Property"), located just north of Interstate 10, on the east side of North Meridian Road, Leon County, Florida. The Property was to be purchased from Textron Petroleum Products, Inc. The following "additional provision" was included in the agreement entered into for the purchase of the Property: Buyer to have 30 days from date hereof within which to obtain such permits as he deems necessary. If Buyer cannot obtain the same, he shall give written notice thereof within said time limit and the contract shall be null and void. If such written notice is not given within such period, this contingency shall be deemed waived. In 1980, the Property was zoned C-1, neighborhood commercial. Under C- 1 zoning, neighborhood commercial, up to 69,000 square feet of commercial space could be placed on the Property based upon a restriction of 85% impervious surface. Mr. Mitchell wanted to insure that he could obtain the permits necessary to develop the Property consistent with C-1 zoning before he purchased the Property. On or about November 3, 1980, the real estate broker involved in the purchase of the Property, sent a letter to Bob Speidel of Environmental Services of Leon County. In the letter Leon County was informed of the pending sale of the Property and the contingency of "Mr. Mitchell being able to obtain a permit to develop the tract by clearing the land, constructing a retention pond and filling the remaining land to a usable elevation." On or about November 7, 1980, an Application for Permit for Clearing and Development was filed on behalf of Mr. Mitchell. This permit was the only permit required in 1980 to develop the Property. The evidence failed to prove, however, that it was the only permit required to develop the Property immediately before the adoption of the 2010 Comprehensive Plan. On or about November 14, 1980, a Clearing and Development Permit, number 1113 (hereinafter referred to as "Permit 1113"), was issued on the Property by the Leon County Department of Public Works, Division of Environmental Services. Permit 1113 specifically provided that Mr. Mitchell was authorized by the permit "to make changes in this land proposed to be subdivided, developed or changed in use by grading, excavating, removal, alteration or destruction of the natural top soil, as hereinafter located and described." The specific use Mr. Mitchell planned to put the Property to and the manner of developing the Property were not specified in Permit 1113 or the application therefore. On or about December 23, 1980, Mr. Mitchell purchased the Property for $44,211.92. Mr. Mitchell would not have purchased the Property for the price paid if it had not been zoned C-1 or if he had not obtained Permit 1113 or a similar permit. The weight of the evidence failed to prove that Mr. Mitchell informed Leon County prior to his purchase of the Property what specific use the Property would be put to or that Leon County ever approved any specific type of development of the Property. Development of the Property. Sometime between 1980 and 1985, Mr. Mitchell cleared the Property. In June, 1985, Mr. Mitchell applied with the Florida Department of Environmental Regulation for a General Permit for New Stormwater Discharge Facility Construction. In October, 1985, the permit was approved. When the Property was cleared some of trees were removed which should not have been removed. Therefore, in July, 1985, Mr. Mitchell agreed to replant trees on the Property. In August, 1985, Mr. Mitchell was issued a Tree Removal Permit for the trees that had already been removed. Mr. Mitchell brought fill (approximately five feet) onto the Property and did substantial grading of the Property. The elevation of the Property was increased from 108 feet to 112-113 feet. Storm water drainage was designed and installed on the Property. The storm water pond was built to accommodate 65,000 to 70,000 square feet of construction. Leon County was aware of this fact. In order to maximize use of the Property a Leon County employee informed Mr. Mitchell that he could place the retention pond on an abutting parcel of property. Consequently, Mr. Mitchell purchased an adjoining parcel of real estate. Mr. Mitchell has not obtained a storm water permit, a building permit or site plan review or approval for the Property. Mr. Mitchell has worked closely with officials of Leon County before and after his purchase of the Property. Mr. Mitchell retained an engineer to prepare a site plan for the Property. The site plan was prepared consistent with C-1, neighborhood commercial zoning, 85% impervious surface and off-site retention. The weight of the evidence failed to prove that Leon County was made aware of the site plan. Mr. Mitchell would not have done the site work or purchased the abutting parcel of property except for the C-1, neighborhood commercial zoning of the Property and the issuance of Permit 1113. The weight of the evidence failed to prove that Mr. Mitchell informed Leon County after his purchase of the Property what specific use the Property would be put to or that Leon County ever approved any specific type of development of the Property. Change in Position or Obligations and Expenses Incurred by Mr. Mitchell. Mr. Mitchell spent $44,211.92 to purchase the Property based upon the zoning on the Property and the issuance of Permit 1113. The work performed on the Property after it was purchased by Mr. Mitchell was performed primarily by Mitchell Brothers, Inc., a company owned by Mr. Mitchell. The "value" of the work performed by Mr. Mitchell was in excess of $250,000.00. The evidence failed to prove what the actual cost of the work performed was to Mr. Mitchell. Mr. Mitchell acquired the abutting parcel of property in reliance on the zoning on the Property, Permit 1113 and a suggestion of an official of Leon County. The abutting property costs several thousand dollars. The evidence failed to prove, however, that the suggestion of the Leon County official concerning the purchase of the abutting property constituted a representation of Leon County that the Property could be developed in a particular manner. It was merely a solution offered to a problem of Mr. Mitchell which Mr. Mitchell was free to reject or accept. The suggestion also only confirmed that the Property could be developed under the current zoning. Development of the Property under the 2010 Plan. Under the 2010 Comprehensive Plan, the Property is located in an area designated as "lake protection." Only minor commercial uses would be permitted in such an area. Under the 2010 Comprehensive Plan, the Property may be developed with a maximum of 20,000 square feet of retail (non-office) space. Additionally, one dwelling unit per two acres of property could also be used for residential purposes. Therefore, the Property could be developed by building three residences on the Property in addition to the 20,000 square feet of retail space. Only approximately one-third of the site work that has been performed on the Property would be needed to develop only 20,000 square feet of commercial space on the Property and the purchase of the abutting property would not have necessary. Procedure. On or about November 2, 1990, Edward M. Mitchell filed an Application for Vested Rights Determination (hereinafter referred to as the "Application"), with Leon County. By letter dated January 2, 1991, Mr. Mitchell was informed that his Application was incomplete. By letter dated January 18, 1991, Mr. Mitchell provided the additional information requested. By letter dated January 25, 1991, Mr. Mitchell was informed that Leon County intended to deny his Application. Mr. Mitchell requested a hearing before the Staff Committee of Leon County by letter dated January 30, 1991. On February 11, 1991, a hearing was held to consider the Application before the Staff Committee. By letter dated February 13, 1991, Mark Gumula, Director of Planning of the Tallahassee-Leon County Planning Department informed Mr. Mitchell that the Application had been denied. On February 22, 1991, a Notice of Appeal was filed by Mr. Mitchell appealing the decision to deny the Application. By letter dated March 1, 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 May 24, 1991.
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 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?
Findings Of Fact The Property. 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. The Property consists of approximately 29 acres located on Lake Geneva. 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. 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. Development of the Property; Government Action Relied Upon. 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. Prior to entering into the purchase contract, Winfred 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. 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: The Clay County required lot size- 15,000 square feet, no lot to be less than 70 feet in width. The set back line from any street would be 25 feet, and set back from side lot lines 10 feet. . . . Proposed Plat would be submitted to you for your approval and signature. (This would be for approval of lot sizes and set back lines). 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. 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. 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. 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. Detrimental Reliance. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. At the time of the formal hearing of this case, approximately 23 acres of the Property remain unsold. Rights that will be Destroyed. 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. 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." 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. Procedural Requirements. 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.
The Issue Whether the Department exceeded its grant of rule making authority in its proposed rule 3D-20.0023 or, alternatively, whether the proposed rule is arbitrary and capricious.
Findings Of Fact Martin Young Private Investigative Agency, Inc. (Martin-Young) is a private investigative agency actively participating in recovering unclaimed property for apparent owners who have assigned their claims to Martin-Young on a contingency basis. Interstate Asset Locators, Inc. (Interstate) is a competing private investigative agency engaged in the same business as the Petitioner, Martin- Young. The Department of Banking and Finance, Division of Finance (Department) is charged by Chapter 717, Florida Statutes, to receive unclaimed intangible property, to include monies, checks, drafts, deposits, interest, dividends, income, credit balances, customer overpayments, gift certificates, security deposits, refunds, credit memos, unpaid wages, unused airline tickets, unidentified remittances, amounts due and payable under the terms of insurance policies, and amounts distributable from trusts or custodial funds. On December 31, 1992, the Department gave notice of proposed rule making in the Florida Administrative Weekly, Volume 18, No. 53, proposing a rule governing competing claims between creditors and apparent owners of unclaimed property. This rule was adopted pursuant to Section 717.138, Florida Statutes, and cites Sections 717.101(11), 717.124, and 717.126, Florida Statutes, as implementing sections of law. The proposed rule was the Department's response to a claim by Martin- Young for unclaimed property under an assignment from a named beneficiary of a life insurance policy, the proceeds of which have been delivered to the Department. Subsequent to the approval of Martin-Young's claim, Interstate filed a claim asserting competing claims of alleged judgment creditors to the same unclaimed property. The competing claims were referred to Paul C. Stadler, Jr., Assistant General Counsel of the Department, who suggested the need for a rule concerning competing claims of creditors to Randall Holland, the Director of the Division of Finance. Mr. Holland instructed Mr. Stadler to research Chapter 717, Florida Statutes, and to draft a rule. The draft rule was reviewed by Rex Pearce, Chief of the Bureau of Financial Staff Programs of the Division of Finance. Mr. Pearce reviewed the rule and made minor changes to its form, as presented by Mr. Stadler. Mr. Stadler drafted and promulgated a statement of facts and circumstances to support promulgation of the rule referencing Chapter 717, Florida Statutes, and case law.
Findings Of Fact Respondent is a registered real estate salesman who holds license no. 005499. He was employed as a "listing solicitor" three days per week by World Wide Property Services, Inc., a registered real estate broker (now dissolved) from December 1, 1975 to June 1, 1976, soliciting listings for real estate in Florida. The solicitation was by telephone nationwide except Florida. Seymour L. Rottman was President of World Wide Property Services, Inc. and Lee Small was Vice President of the corporation during the time Respondent was employed. The purpose of World Wide Property Services, Inc. was to secure listings of and purchasers for various Florida properties. Mr. Rottman was a subpoenaed witness for Petitioner at subject hearing. During Respondent's period of employment he and Mr. Small were in charge of hiring salesmen for the company and hired Respondent. Respondent was employed to obtain listings by telephone from property owners who lived out of state but owned Florida property. The procedure followed was for a salesman to call an out of state land owner picked from a list of prospects and inquire if he or she would be interested in selling their property at a higher price than it had been purchased for. This was termed a "front" call and the salesman was termed as a "fronter". If the prospect expressed interest in listing the property, his or her name was provided to World Wide Property Services, Inc. who then mailed literature to the property owner describing the efforts that would be made by that organization to sell the property. Enclosed with this material was a listing and brokerage agreement. This agreement provided that the owner of the property would pay a prescribed listing fee to World Wide Property Services, Inc. which would be credited against a 10 percent commission due that firm upon sale of the property. In return, the corporation agreed to include the property in its "listing directory" for a one year period, direct its efforts to bring about a sale of the property, advertise the property as deemed advisable in magazines or other medium of merit, and to make an "earnest effort" to sell the property. The accompanying literature explained that the listing fee was necessary in order to defray administrative costs of estimating the value of the property, merchandising, advertising, brochuring and cateloging the information. The material also stated, that advertising would be placed in various foreign countries and cities of the United States. In addition, it stated that the property would be "analyzed", comparing it to adjacent property to arrive at a price based on recent sales of neighboring property and also review the status of development and zoning in the immediate area of the property to assist in recommending a correct selling price for approval by the owner. During the course of the calls to prospects Respondent advised them that the property would be advertised internationally and in the United States and that bona fide efforts would be made to sell the property. He represented himself as a salesman for that organization. After the promotional literature was sent to the prospect, the salesmen including Respondent, made what was called a "drive" call to answer any questions and to urge that the property be listed. After making these calls Respondent had no further contact with the property owner. The listing fee was $325. The salesmen received approximately one-third of the fee, about $100 per listing. The salesmen, including Respondent, telephoned the prospects and then read from the script entitled "front" and "drive". The instructions from the broker was to stay within the script but Respondent was not monitored at all times. During the course of operation of less than a year World Wide Property Services, Inc. secured about 200 listings and grossed approximately $80,000 to $90,000 in the "advance fee" listings, but no sales were made. Respondent made no sales but did secure a limited number of listings making a total of $2,400 during the six months employment at the rate of approximately $100 per listing. Respondent said he never visited the properties World Wide Property Services, Inc. had for sale in Florida except properties in Port St. Lucie and in the Grand Bahamas. He felt that property in those two areas was salable. Respondent testified that he read from the script heretofore referred to as "front" and "drive" and did not vary from it. He worked in a "listing office" which was one of the two offices of the employer. He was unaware of articles stating foreign investors were interested in buying Florida property. Respondent did not attempt to make sales inasmuch as it was not the job for which he was employed. He had no knowledge or information that the advance fee operation of which he was a part was an illegal operation or an unethical operation. Respondent had no supervisory capacity in the corporation for which he worked and he testified that he never guaranteed the sale of property to anyone, a fact which was borne out by a deposition of a client Respondent solicited. Petitioner contends: that while a salesman for World Wide Property Services, Inc. Respondent solicited and obtained listings by telephone of property owners and that as an inducement to list the property, falsely represented that the property could be sold for a price far in excess of its purchase price; that a bona fide effort would be made to sell the property and that it would be listed nationally and internationally and that the company had foreign investors wanting to purchase United States property. Respondent contends: that he did not know the "advance fee" operation was fraudulent; that World Wide Property Services, Inc. was a registered broker; that at the time of his employment the actions of his employer had not been held illegal; that he never misrepresented or fraudulently induced any potential customer to get his money.
Recommendation Reprimand the Respondent in writing. DONE AND ENTERED this 15th day of June, 1978, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Tom Bush, Esquire Murray & Bush, P.A. Suite 1602-One Financial Plaza Ft. Lauderdale, Florida 33394 Salvatore A. Carpino, Esquire Florida Real Estate Commission 400 West Robinson Street Orlando, Florida 32801 ================================================================= AGENCY FINAL ORDER ================================================================= FLORIDA REAL ESTATE COMMISSION FLORIDA REAL ESTATE COMMISSION, Petitioner, PROGRESS DOCKET NO. 3110 vs. DADE COUNTY DOAH CASE NO. 77-1582 LEONARD P. MARCUS, Respondent. /
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following Findings of Fact: The Respondent, St. Lucie County Expressway Authority, was created by the Florida legislature in 1983, and is governed by Chapter 348, Florida Statutes. The Authority is composed of two members from the Board of County Commissioners of St. Lucie County, two members from the City Commission of Ft. Pierce, two members from the City Council of Port St. Lucie and three members appointed by the governor. Based on the anticipated future growth of St. Lucie County, there is a need for additional East-West traffic arteries in the southern portion of the county to ease expected traffic conditions. The St. Lucie County Expressway Authority employed consultants and conducted public hearings to determine the best location for such a roadway. Prior to selecting the location for the proposed East-West Expressway, the St. Lucie County Expressway Authority examined feasibility studies, traffic count reports and engineering and road design proposals on alternative alignments and found the proposed corridor to be the best choice from both an economic and environmental standpoint. The proposed expressway route connects Interstate 95 to U.S. Highway 1. Phase 1 of the project would begin in the southern portion of St. Lucie County at U.S. Highway 1 and continue east, following existing transmission lines owned by Florida Power and Light Company and extend to a point which is now called East Torino Parkway. The total length of Phase One of the project is approximately 2.6 miles. Phase Two would extend the project to Interstate 95. The St. Lucie County Expressway Authority expects to obtain funding for construction of the East-West Expressway from various sources including the State of Florida's Toll Facilities Revolving Trust Fund, the Florida Department of Transportation and state-backed revenue bonds. The use of state-backed revenue bonds would require St. Lucie County to pledge a certain portion of its gas tax revenue as security to cover the bonds in the event that the expressway did not generate enough money from tolls to pay back the bonds. A public hearing is scheduled for January, 1988 at which the St. Lucie County Commission will review updated feasibility studies and traffic count estimates to determine whether to pledge the necessary funds to support the bonds. Assuming that approval is obtained for state-backed revenue bonds, the letting of a contract to construct the East-West Expressway could be accomplished by July 1, 1989. The time period for construction of a project such as the East-West Expressway is approximately two (2) years from the date that the contract for construction is executed. Thus, under the most optimistic outlook and projections, the proposed East-West Expressway could be completed by July of 1991. However, difficulties in obtaining funding and/or necessary environmental permits could delay completion of the expressway for ten (10) years, or until 1997. In conjunction with the preparation of plans for construction of the East-West Expressway, the St. Lucie County Expressway Authority filed "right-of- way reservation maps" on October 13, 1986, in accordance with Section 337.241, Florida Statutes. The reservation maps were filed and approved by the St. Lucie County Expressway Authority in compliance with all applicable statutes and regulations. The purpose of filing the right-of-way reservation maps by the St. Lucie County Expressway Authority is to preclude development of properties within the proposed corridor of the East-West Expressway while final construction and engineering plans are being prepared, thereby preventing an increase in cost of acquisition of those properties pending eventual eminent domain proceedings. The right-of-way reservation maps will prohibit the granting of development permits, as defined in Section 380.031(4), Florida Statutes, by any governmental entity for a period of five (5) years from the date of recording of the reservation maps. This period may be extended for an additional five years at the option of the Expressway Authority pursuant to Section 337.241(2), Florida Statutes. The reservation maps do not prohibit sale, continued use of the property by its owners nor is any use prohibited which does not require a development permit as defined in Section 380.031(4), Florida Statutes. The engineering construction plans for the East-West Expressway encompass less area than the reservation maps. However, the larger reserved area will be utilized to facilitate construction of the project and for water retention on site. Thus, less private property will ultimately be taken than that which is included in the right-of-way reservation area. The property owned by Petitioners, T. L. Sloan, James Taylor and Bill Stewart (hereinafter referred to as the "Sloan property") consists of a front and rear parcel. The front parcel consists of 6.54 acres of which 2.28 are within the right-of-way reservation area. The rear parcel is physically separated from the front parcel by a drainage canal and consists of approximately 4.25 acres. The rear parcel is not within the reservation map area, but access to this parcel can only be gained by U.S. Highway 1 through the front property. The property owned by Petitioners Mark C. Walters and David J. Gonzalez (hereinafter referred to as the "Walters' property") measures approximately 55,450 square feet of which approximately 46,000 square feet are within the right-of-way reservation area. The Sloan and Walters' properties are located at the easternmost end of the proposed East-West Expressway and front the east side of U.S. Highway 1 in Ft. Pierce, Florida. Both properties were purchased in 1984 as investment property and are presently vacant, unimproved acreage. The front parcel of the Sloan property is zoned commercial general and the rear parcel is zoned multifamily residential at five units per acre. The Walters' property is zoned commercial general and is adjacent to the Florida Power and Light transmission lines. The St. Lucie County Expressway Authority intends to use the property within the reserved area for the construction of the entrance and exit ramps of the proposed expressway. The engineering design of the East-West Expressway was done with as little intrusion upon Petitioner's properties as practical and only that property absolutely necessary for construction will ultimately be taken. Pursuant to the right-of-way reservation maps, all of the highway frontage on U.S. Highway 1 for both properties has been reserved for the expressway construction. Because of existing regulations, the St. Lucie County zoning office will not issue any development permits for property which has no access to a public highway. Therefore, the local zoning office will not issue any development permits for any portion of the Petitioners' properties, whether included in the reservation area or not. Thus, all of the property owned by Petitioners has been affected by the right-of-way reservation maps. The Sloan property was listed for sale prior to the recording of the right-of-way reservation maps. The Walters' property was purchased with the intent to build a gun shop which is now operated by the present owners at another location. After the recording of the reservation maps, the Walters' property was actively listed for sale. After the recording of the reservation maps, purchase inquiries regarding the Sloan property began to rapidly decrease. Inquiries regarding the Walters' property have also been extremely slow. No written offers to purchase the subject properties have been submitted to any of the Petitioners. David Fuller, a real property appraiser called as a witness by Petitioners, prepared an appraisal estimating the effects of recording the right-of-way reservation maps on the Sloan and Walters' property. The testimony of Mr. Fuller is accepted as more credible and pertinent to the issues involved in this cause than the testimony presented by Mr. Davis, the Respondent's expert appraiser. Mr. Davis admitted that the purpose of his appraisal was to estimate the fair market value of the property in fee simple, the part "taken" and damages to the remainder for the purpose of eminent domain. Mr. Davis' analysis is more appropriate for an action sounding in eminent domain. Mr. Fuller used the Sales Comparison or Market Approach combined with a discounted cash flow method of appraisal in determining the difference in the value of the properties before the recording of the right-of-way reservation maps, and the market value of the properties immediately after recording of the reservation maps. The value of real property is directly related to the use to which it can be put. Thus, a particular parcel may have several different value levels under alternative uses. In determining what, if any, substantial impact the record of the right-of-way reservation maps had on the market value of the Sloan and Walters' property, Fuller evaluated the difference in the value of the properties utilizing their highest and best use before the filing of the right- of-way reservation maps and the highest and best use after the recording of the maps. The highest and best use for the Sloan property without the encumbrance of the right-of-way maps would be to improve the front commercial zoned parcel with a commercial use consistent with neighborhood use trends (i.e., strip shopping centers, rental storage buildings and/or automobile dealerships) and improve the rear multifamily zoned parcel with a support use for the front commercial property. The highest and best use of the Sloan property after filing of the right-of-way reservation maps would be to hold the property as vacant until the right-of-way reservation map filing expires. Although the Sloan property could be sold with the right-of-way reservation, a majority of the potential market would be eliminated and the remaining market would require a discount to purchase the property knowing that the restrictions exist. The potential market in the neighborhood consists of generally three types of investors; (1) the owner occupant; (2) the real estate investor seeking income from an improved property; and (3), the short term land speculator. The owner occupant seeking to immediately build would not consider the property in question because the potential to immediately construct a new improvement is not available. Likewise, the investor seeking to build an income producing improvement, either immediately or in the next three years, would not be interested in the property. The short term land speculator would not be interested because there is no certainty that the property would be able to be developed to its highest potential market value within the next two to three years. The highest and best use for the Walters' property without the encumbrance of the right-of-way reservation maps would be to improve the parcel in approximately one to two years with a commercial use consistent with the neighborhood trends (i.e., owner occupied small business and/or mini-storage property). Improved uses such as an automobile dealership or shopping center could not be physically constructed on a site the size and shape of the Walters' property. The highest and best use of the Walters' property after filing of the right-of-way reservation maps would be to hold the parcel vacant until the reservation filing expires. As with the Sloan property, although the parcel could be sold, a majority of the potential market would be eliminated and the remaining market would require a discount to purchase the property knowing that the restrictions exist. Mr. Fuller stated that in his opinion, using the discounted cash flow model of appraisal, the Sloan properties suffered a total loss in value of approximately $441,450.00 on the date the reservation maps were filed. As to the Walters' property, the loss was calculated at $78,480.00. Mr. Fuller's financial calculations as to loss are misleading and not very useful because they were specifically calculated for a period of time of ten years. In other words, Mr. Fuller's total loss of value calculations are based on the assumption that the reservation map restrictions would exist for the full initial five (5) year period and that they would be extended for an additional five (5) year period. The ability to develop vacant and unimproved commercial property and to put the land to its highest and best use is a substantial beneficial ownership interest arising out of the ownership of commercial property. Both of the properties owned by Petitioners are fully capable of development and no other impediments to development exist except for the reservation maps. Substantial payments on the mortgages for the properties are being made by Petitioners each year totalling over $58,000.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that the St. Lucie County Expressway Authority enter a Final Order in favor of Petitioners after which the Authority shall have 180 days from the date of said order to acquire the Petitioners property or initiate appropriate acquisition proceedings pursuant to the requirements of Section 337.241, Florida Statutes. DONE and ORDERED this 2nd day of December, 1987, in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of December, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 87-2279, 87-2517 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Finding of Fact 1. Adopted in Findings of Fact 7 and 8. Adopted in Finding of Fact 7. Adopted in Findings of Fact 11, 12 and 13. Adopted in Findings of Fact 11, 12, 13 and 14. Adopted in Finding of Fact 15. Adopted in Finding of Fact 16. Adopted in Findings of Fact 9, 17 and 18. Adopted in substance in Findings of Fact 23, 25 and 27. Partially adopted in Findings of Fact 6 and 26. Matters not contained therein are rejected as misleading and/or argument. Adopted in substance inn Finding of Fact 27. Addressed in Conclusions of Law section. Addressed in Conclusions of Law section. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. Adopted in Finding of Fact 8. Adopted in Finding of Fact 7. Adopted in Finding of Fact 7. Adopted in Finding of Fact 13. Adopted in Finding of Fact 10. Adopted in Finding of Fact 3. Adopted in Finding of Fact 9. Rejected as subordinate and/or unnecessary. Adopted in Finding of Fact 11. Adopted in Finding of Fact 12. Adopted in Finding of Fact 13. Adopted in Findings of Fact 13 and 14. Adopted in Findings of Fact 13 and 14. Rejected as subordinate and/or unnecessary. Adopted in Finding of Fact 18. Adopted in Finding of Fact 9. Adopted in Finding of Fact 9. Adopted in Finding of Fact 15. Adopted in substance in Finding of Fact 10. Partially adopted in Finding of Fact 26. Matters not contained therein are rejected as misleading and/or not supported by the weight of the evidence. Rejected as contrary to the weight of the evidence. Adopted in substance in Finding of Fact 6. Rejected as misleading. The Petitioners' expert projected that "completion" and not "construction" could possibly take 10 years. Adopted in substance in Finding of Fact 9. COPIES FURNISHED: John T. Brennan, Esquire Post Office Box 3779 Ft. Pierce, Florida 33448-3779 Frank J. Lynch, Jr., Esquire Post Office Box 4027 Ft. Pierce, Florida 33448-4027 David Stuart Chairman St. Lucie County Expressway Authority Post Office Box 4027 Ft. Pierce, Florida 33448-4027
