Findings Of Fact The Subject Property. In July, 1988, a Deposit Receipt and Purchase and Sale Agreement was entered into between the owner of the property at issue in this proceeding and the Applicants, R.L. Johnson Construction Co. and Developers Three, Inc. The sale of the subject property was conditioned on obtaining rezoning of the subject property from agriculture to residential. On October 25, 1933, the Clay County Board of County Commissioners granted a request to re-zone the River Bend Subdivision property from agriculture to residential. On December 3, 1988, the subject property was purchased by the Applicants. The Applicants, as R.L. Johnson Construction Co. and Developers Three, Inc., a Florida general partnership, began to develop the property as "River Bend Subdivision". The subject property was sold to Hutson Land Company (hereinafter referred to as "Hutson"), by the Applicants on or about November 19, 1992, pursuant to a Purchase and Sale Agreement between the Applicants and Hutson Land Company entered into on or about August 25, 1992. Although the Applicants are no longer the owners of the subject property, they are still responsible for development of the property on behalf of Hutson. Therefore, the Applicants will be treated as having filed the Application on behalf of Hutson. Government Action Relied Upon Before the Applicants' Sale of the Property. On March 30, 1989, a preliminary plat for River Bend Subdivision was submitted to the Clay County Development Review Committee. The preliminary plat for the development of River Bend Subdivision was approved by the Clay County Development Review Committee on or about May 8, 1989. On January 17, 1990, the Clay County Planning Commission completed a preliminary plat review checklist after review of the River Bend Subdivision preliminary plat. The preliminary plat for River Bend Subdivision reflected that the development would include a ten-year, twenty-four hour retention basin. The Applicants also obtained permits and instituted other reviews by other government agencies, such as the Corps of Engineers. The evidence, however, failed to prove that Clay County was directly involved in these reviews or permit approvals. A traffic impact analysis performed by the Florida Department of Transportation and dated January 15, 1991, was sent to the Clay County Zoning Department by the Department of Transportation. On March 4, 1991, the Clay County Engineer completed an initial review of the proposed project. The engineer noted that drainage calculations were needed in a letter dated March 6, 1991, reflecting the results of his review. By letter dated February 26, 1991, the Clay County Engineering Department informed the land surveyors for the project that certain changes to the plat for the project were needed. The plat was to be submitted to the Clay County Board of County Commissioners at a March 12, 1991, meeting. By memorandum dated March 18, 1991, the Clay County Engineering Department informed the Clay County Clerk of Court that the final plat for River Bend Subdivision had been approved by the Clay County Board of County Commissioners at its March 12, 1991, meeting. The final plat approved by the Clay County Board of County Commissioners provided for a ten-year, twenty-four hour retention basin. Subsequent to the approval of the final plat, the Applicants' engineer responded to the Clay County engineer's letter of March 6, 1991. Drainage calculations requested by the Clay County engineer were provided. By letter to the Applicants dated June 6, 1991, the Clay County engineering division indicated that the plans for River Bend Subdivision had been re-reviewed. Pursuant to the re-review, it was determined for the first time that the retention basis required for the project should be a twenty-five year, twenty-four hour basin. A similar letter dated June 11, 1991, was also sent to the Applicants. On or about June 11, 1991, a FAX, with a copy of the June 11, 1991 letter from the Clay County engineering division to the Applicants, was sent to the Applicants. Pursuant to the copy of the June 11, 1991, letter the Applicants were informed that the determination that a twenty-four year, twenty- four hour retention basin would be required for the project had been eliminated by the Clay County Public Works Director and the Clay County Director of Development. The reason for eliminating the twenty-four year, twenty-four hour retention basin was explained by the Clay County engineering division to the Director of the Clay County Director of Development in a letter dated June 29, 1991. On August 14, 1991, a Notice to Proceed was issued by the Clay County engineering division to the Applicants. The Notice to Proceed indicates that the plans for the project, including drainage calculations based upon a ten- year, twenty-four hour retention basin, were approved. Hutson was not involved in any manner in the actions addressed in the foregoing findings of fact. Extension of Time for Vested Development of the Project. In July, 1991, the Applicants requested that the Clay County Board of County Commissioners extend the vesting date for developed subdivisions from July 1, 1992, to December 31, 1992. This request was approved. The approved extension of the vesting date for developed subdivisions was not, however, included in the Clay County Comprehensive Plan adopted on January 23, 1992, due to an oversight of Clay County. Hutson was not involved in any manner in the action addressed in findings of fact 24 and 25. Hutson Land Company's Involvement. On or about August 25, 1992, Hutson entered into a Purchase and Sale Agreement with the Applicants. Pursuant to the Purchase and Sale Agreement, Hutson agreed to purchase the subject property from the Applicants subject to the following conditions, among others: CONDITIONS AND CONTINGENCIES: This sale is contingent upon BUYER confirming that the project is financially feasible and all permits, and/or approvals for the development have been obtained and are currently valid, including, but not limited to: All required permits and/or approvals from Clay County including compliance with the Comprehensive Plan, St. Johns River Water Management District, DER, and the U.S. Corp. of Engineers. . . . . It is understood by all parties that if any of the conditions or contingencies for development are not fulfilled or obtained, the BUYER may elect to receive the return of the binder deposit or at BUYER's option, BUYER may consummate this sale. . . . BUYER will have a total of 60 days from the execution of this contract to satisfy the conditions and contingencies for its development. Prior to entering into the Purchase and Sale Agreement, the President of Hutson, Donald P. Hinson, met with Philip L. Leary, Planning and Zoning Director for Clay County. The purpose of the meeting was to allow Mr. Hinson to insure himself that the project could be completed as planned. Mr. Hinson was "told by Mr. Leary that this project was vested and that [he] could rely on his representations to [him] that [they] could secure all necessary permits from Clay County if [they] purchased this project." Mr. Hinson relied upon Mr. Leary's representations and Mr. Leary was aware that Mr. Hinson would rely upon his representations. At some time after the Purchase and Sale Agreement was entered into, Hutson requested that Clay County provide a letter to Hutson that the approved development of the subject property was vested if built before December 31, 1992. The letter requested by Hutson was apparently not provided by Clay County because it was discovered that the Clay Comprehensive Plan did not provide that the vesting date for subject property development was December 31, 1992, instead of July 1, 1992 as approved by Clay County. It was suggested by Clay County Planning staff that the Applicant apply for a Concurrency Reservation Certification in order to extend the time for infrastructure construction. The Applicants filed an application for a concurrency reservation certification in September, 1992. The application for Concurrency Reservation Certification filed by the Applicants was a form application provided by Clay County. The form specifies, consistent with existing law as of September, 1992, that the retention basin for the development of the subject property must be designed based upon a twenty- five year frequency, twenty-four hour duration. Or or about October 13, 1992, Clay County issued an Interim Concurrency Reservation Certification, Residential. Completion of infrastructure construction was required by the Certification to be completed by October 13, 1992. Having satisfied itself that the project could be vested if infrastructure construction was completed by October 13, 1992, and that permits necessary for the proposed development had been issued, Hutson purchased the subject property from the Applicants on or about November 19, 1992. The Applicants have also cited certain representations the Applicants made to Hutson concerning the development of the subject property. Those representations are not relevant. At issue are representations by Clay County to Hutson. Clay County cannot be estopped by actions or representations from the Applicants. The Applicant's and Hutson's Detrimental Reliance. The Applicants have suggested that they will suffer certain consequences if the subject equitable vested rights certificate is not issued. Those consequences are not, however, relevant. The Applicants are no longer the owners of the subject property and are, therefore, not entitled to a vested rights certificate. Additionally, in light of the conditions of the Purchase and Sale Agreement, it is not clear that the alleged consequences will occur if the certificate sought by the Applicants in this matter is not granted. Hutson has incurred the costs of $367,414.21 for the installation of water, sewer, roads and drainage improvements to the subject property. Rights That Will Be Destroyed. Hutson, if required to build a twenty-five year, twenty-four hour retention basin, will be required to redesign, re-permit and re-plat the development. 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 by Clay County Ordinance 92-22 have been met.
The Issue The issue in these cases is whether certain proposed amendments to Rule 18-21.019(1), Florida Administrative Code, are an invalid exercise of delegated legislative authority, as alleged by Petitioners.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background The parties Petitioner in Case No. 98-1764RP, Support Terminals Operating Partership, L.P. (Support Terminals), a Delaware limited partnership, is the fee owner of a parcel of permanently improved submerged lands lying beneath a large commercial pier on the St. Johns River located at 6531 Evergreen Avenue, Jacksonville, Florida. On May 28, 1997, Respondent, Board of Trustees of the Internal Improvement Trust Fund (Board), issued a disclaimer of title to those lands for the footprint of its pier subject, however, to the State's right to reclaim the lands in the event certain conditions occurred. Petitioner in Case No. 98-1866RP, Commodores Point Terminal Corporation (Commodores Point), owns a marine terminal at 1010 East Adams Street, Jacksonville, Florida. Commodores Point holds two disclaimers of title for submerged lands associated with the terminal which were formerly vested in the State. These disclaimers, numbered as 28042 and 28291, were issued on January 25, 1988, and January 23, 1990, respectively. The first disclaimer was for lands which were filled during the term of the Butler Act prior to its repeal in 1957. The second disclaimer was issued for dredged lands immediately adjacent to the bulkheaded upland. The interest asserted by the Board in its proposed rule would extend to the lands covered by the two disclaimers. Petitioners in Case No. 98-2045RP, Olan B. Ward, Sr.; Martha P. Ward; Anthony Taranto; Antoinette Taranto; J.V. Gander Distributors, Inc.; J.V. Gander, Jr.; and Three Rivers Properties, Inc., are the owners of certain permanent dock and pier improvements in Franklin County, Florida, made during the term of the Butler Act. As of February 12, 1998, all of these challengers had requests for disclaimers pending before the Board. Petitioner in Case No. 98-2046RP, Anderson Columbia Company, Inc. (Anderson Columbia), is a Florida corporation engaged in the business of building and maintaining roadways. It operates an asphalt plant on property which fronts on Pond Creek, a navigable waterway in Bagdad, Santa Rosa County, Florida. The plant is located on property owned by the other Petitioner in Case No. 98-2046RP, Panhandle Land & Timber Company, Inc., a Florida corporation which has leased the property to Anderson Columbia. Prior to 1957, the predecessor-in-title to the property made numerous improvements to the shoreline to facilitate use of the waterway as an area to receive and ship goods through waterborne commerce. The record suggests that some of the improvements made by the original owners may no longer exist, and thus the present owners would be directly affected by the new rules. The Board is a collegial body consisting of the Governor and the Cabinet of the State of Florida. It is charged with the responsibility of serving as trustee of all sovereign lands in the State of Florida for the citizens of the state. Standing The parties have stipulated that, for purposes of these proceedings alone, all Petitioners are substantially affected by the amendments to Rule 18-21.019(1), Florida Administrative Code, and thus they have standing to initiate these cases. Preliminary events On February 14, 1998, the Board published notice in the Florida Administrative Weekly of its intention to make certain revisions to Rule 18-21.019, Florida Administrative Code. The new rule will have the lengthy title of "Applications, Standards and Criteria, and Forms for Disclaimers, Quitclaim Deeds, or Certificates to Clear Title to Filled Formerly Sovereignty Lands and for Disclaimers for Lands Lost Due to Avulsion or Quitclaim Deeds to Reclaim Lands Lost Due to Artificial Erosion or Artificial Erosion and Avulsion." The proposed text of the rule, as slightly modified from the initial proposal, was later published on April 10, 1998, and a public hearing was held by the Board on May 5, 1998. The filing of the rule with the Department of State has been abated pending the outcome of these proceedings. Among other things, the proposed amendments to Subsection (1) of the rule would generally create new standards, criteria, and forms for applications by property owners for a disclaimer to confirm title of formerly submerged sovereignty lands filled in, bulkheaded, or permanently improved prior to May 29, 1951, or prior to June 11, 1957, in Dade and Palm Beach Counties, and on nontidal navigable streams. Contending that some of the proposed rule amendments and a form are an invalid exercise of delegated legislative authority on a number of statutory grounds, Petitioners filed their petitions on April 15, 17, and 30, and May 1, 1998. The petitions, as later modified slightly by the parties' stipulation, raise identical grounds and first allege that the Board has exceeded its grant of rulemaking authority by proposing to adopt new Rules 18-21.019(1)(c)1.c., 2., 3., 6., 10., and 11., and Form No. 63-035(16). They also allege that the same rules and form enlarge, modify, or contravene the specific provisions of the law being implemented, and they are arbitrary and capricious. They further contend that proposed Rules 18- 21.019(1)(c)1.c., 2., 3., 6., and 10., and Form No. 63-035(16) are invalid because they are vague, fail to contain adequate standards for agency decisions, or vest unbridled discretion in the Board. Finally, the challengers allege that proposed Rules 18-21.019(1)(c)1.c. and 3. and Form No. 63-035(16) are not supported by competent, substantial evidence. There are no assertions that the rules are unconstitutional. As a corollary to these claims and in the event they prevail on any issue, all Petitioners have requested attorney’s fees and costs under Section 120.595(2), Florida Statutes, on the theory the Board’s actions were not substantially justified and there are no special circumstances which would make an award to Petitioners unjust. The Proposed Rules Generally A brief historical overview When Florida attained statehood in 1845, it became the owner of all lands beneath navigable waters. Under the public trust doctrine, the state holds these lands beneath navigable waters in trust for the benefit of the public. In order to benefit commerce, the Legislature enacted the Riparian Rights Act of 1856 by which it divested its right and interest in submerged lands to those upland owners who benefited commerce by building wharves and warehouses and filling their water lots. In 1921, for the purpose of improving navigation and commerce, and to stimulate and encourage the improvement of submerged lands, the Legislature enacted the Butler Act, which gave upland riparian owners the right to improve the shoreline adjacent to their property by bulkheading, filling in, and improving the adjacent lands. See Chapter 8537, Laws of Florida (1921), formerly codified as Section 271.01, Florida Statutes. The law was made retroactive to the effective date of the 1856 Act and had the effect of divesting the State of its title to the submerged lands adjacent to the upland property if the adjacent riparian owner filled in, bulkheaded, or permanently improved those lands. This divestiture of title, however, was "subject to any inalienable trust under which the State holds said lands." Ch. 8357, Section 1, at 332, Laws of Fla. (1921). In 1957, the Legislature expressly repealed the Butler Act by Chapter 57-362, Laws of Florida, which is commonly known as the Bulkhead Act. Section 9 of the Bulkhead Act has been codified as Section 253.129, Florida Statutes, and it provides that "[t]he title to all lands heretofore filled or developed is herewith confirmed in the upland owners and the trustees shall on request issue a disclaimer to each such owner." By enacting that law, the Legislature specifically confirmed the title in land to all upland owners who had performed the improvements before the repeal of the Butler Act. Disclaimers An owner of submerged lands under the Butler Act might nonetheless seek a disclaimer from the Board to confirm title to his property for at least two reasons. First, one might seek a disclaimer in order to obtain title insurance if the title company had some question about ownership of the submerged lands. Second, because the State charges a fee to lease submerged lands for private uses, an owner might seek a disclaimer from the State in order to establish a superior right to the land and thus avoid paying fees for a private use. The disclaimer would then be used by the titleholder as evidence of his ownership. Pursuant to the Bulkhead Act, in 1957 the Board began issuing disclaimers to those upland owners who had "filled in" or "developed [bulkheaded]" their submerged lands. Following a court case in 1985, the Board also began issuing disclaimers for submerged lands over which "permanent improvements" had been made. In all, the Board estimates it has issued "more than 100" disclaimers. Events precipitating the proposed rule changes In June 1997, the Board issued a disclaimer of title to Support Terminals for the footprint of a pier but included certain "reversionary" language in the disclaimer. The same language first appeared in an earlier disclaimer issued on May 3, 1996, to a property owner in Monroe County, Florida. In doing so, for the first time since it began issuing disclaimers, the Board attempted to assert a potential reversionary interest in Butler Act lands through a disclaimer. The language in Support Terminals' disclaimer read as follows: Provided, however, that because the lands subject to this disclaimer are subject to the inalienable public trust under which the Grantor acquired and holds title to sovereignty lands, if Grantee permanently abandons any of the improvements above and as a result of the abandonment said improvements deteriorate and wash away through a gradual, imperceptible process, all right, title and interest in the lands beneath the improvements shall automatically and immediately vest in Grantor, without notice to Grantee, and Grantee shall forfeit all right, title and interest in and to said lands. After the disclaimer was issued, Support Terminals filed a petition under Section 120.56(4), Florida Statutes, seeking to have the above statement declared invalid on the ground it constituted a rule and the Board had not adopted the statement by rulemaking procedures. See Support Terminals Operating Partnership, L.P. v. Bd. of Trustees of the Internal Improve. Trust Fund, DOAH Case No. 97-2988RU. It also filed a petition under Sections 120.569 and 120.57(1), Florida Statutes, which is docketed as DOAH Case No. 97-5903, alleging that the Board's action affected its substantial interests. The first petition prompted the Board to initiate rulemaking development in January 1998. The existing and proposed rule Existing Rule 18-21.019(1), Florida Administrative Code, which was adopted on November 1, 1995, and amended in minor respects in 1996, generally describes the application process by which owners of "filled formerly sovereignty lands" may confirm title to those lands through a disclaimer. It makes no reference to "submerged" lands, or to owners of lands that were "bulkheaded" or "permanently improved" prior to 1957. Subsection (1)(b) of the rule requires that an owner file an application for a disclaimer on DEP Form No. 63-031(16), which has been adopted and incorporated by reference. Neither the existing rule or form contain any standards or criteria which, if not met, would warrant denial of the application for a disclaimer. The proposed amendments generally add two classes of landowners (those who have bulkheaded or permanently improved the submerged lands) who can apply for a disclaimer under the rules. This is to codify the Board's present practice of issuing disclaimers for all three types of development. However, the Board acknowledges that the new rules are primarily intended to address disclaimers for "permanent improvements," a subject not covered by the existing rule. The rules also establish eleven new criteria and standards for "submerged sovereignty lands filled in, bulkheaded, or permanently improved" prior to 1957, none of which are found in the current rule or form, which "must be met for an application for disclaimer under this subsection to be approved." These standards and criteria are codified in subparagraphs (1)(c)1.-11. and are readopted in the form; only six, however, are in issue. These six criteria, while somewhat lengthy, are repeated below: (c) All of the following standards and criteria for disclaimers must be met for an application for disclaimer under this subsection to be approved: (1) . . . For purposes of this rule the words . . . "permanently improved" are defined below: c. "Permanently improved" shall mean that a vertical wall or embankment, such as a sea wall, revetment, or similar structure, the purpose of which is to hold back soil or filled in lands from entering the water, was placed on sovereign submerged lands. Permanent improvements are those structures or improvements which are continuing or enduring in the same state, status, and place without fundamental or marked change, and are intended to be fixed, lasting, and stable. Dredged submerged lands adjacent to, and used as adjuncts to, piers or docks may be permanent improvements under the guidelines contained in relevant court orders which are rendered from time to time. Offshore dredging done for the sole or primary purpose of filling in other lands, not as a necessary adjunct to structures which constitute permanent improvements under this rule, shall not be considered permanent improvements under this rule. Lands below mean or ordinary high water line which were filled in, bulkheaded, or permanently improved prior to the applicable date under subsection (1)(a) above, but which are no longer filled in, bulkheaded, or permanently improved in whole or in part, when application is made, shall not qualify for a disclaimer under this rule. Title to lands which are no longer filled in, bulkheaded, or permanently improved, and therefore no longer comply with the Butler Act shall be claimed by the Board of Trustees as part of the Public Trust. This includes lands which have subsequently eroded due to natural causes. Applications for disclaimers for such lands shall be denied. 6. The filling in, bulkheading, or permanent improvement must have been made by or on behalf of the owner of record of the contiguous riparian upland property or his, her, their, or its agent at the time of the filling in, bulkheading, or permanently improving. Filling in, bulkheading, or permanent improvements made by a person with no legal relationship to the owner of record, or not for the primary purpose of improving and developing the water front property, shall not be disclaimed (e.g., filling in, bulkheading, or permanent improvements made by the Florida Department of Transportation for a bridge or causeway). Applications for disclaimers for permanent improvements on or over lands which are still submerged shall be considered on a case-by-case basis. In determining whether to approve or deny such applications, the Board of Trustees shall consider such things as: whether the structure was intended to be temporary or permanent; whether the structure is similar to the types of structures stated as examples in the Butler Act (and in s. 18- 21.019(1)(c)1.c., F.A.C.); whether the structure can last indefinitely (for a reasonable length of time in the context of human life) if it is properly maintained; whether the structure is still standing and is reasonably expected to remain standing; whether and how the structure relates to the uplands and the other proximate filling, bulkheading, or permanent improvement; whether the structure is necessary to make the other filled, bulkheaded, or improved lands fully functional for the purpose for which they were intended; and such other things as are specified by the courts from time to time to be relevant. Submerged lands to be disclaimed shall be subject to the inalienable Public Trust. Such lands shall be available for the traditional public uses of fishing, swimming, and boating. In addition, proposed paragraph (1)(e) provides that "[d]isclaimers issued by the Board of Trustees shall substantially conform to DEP Form #63-035(16)," which has been adopted and incorporated by reference. Paragraph 5. of that form has been amended to include the "Standards and Criteria Requirements" which must be met by an applicant. They include, in a verbatim fashion, the disputed standards and criteria set forth in Finding of Fact 19. The form also includes the following language, which essentially parrots language in subparagraph (1)(c)11., considered by Petitioners to be offensive: All lands within the above-described area which are submerged at the time of this grant shall be subject to the inalienable public trust. Such lands shall be available for the traditional public uses of fishing, swimming, and boating. Finally, the form includes the following "Notice," which is intended to modify the language contained in the disclaimer issued to Support Terminals in Case No. 97-2988RU: NOTICE: If at any time or for any reason, the lands described herein are no longer bulkheaded or filled-in or permanently improved, and said lands are no longer being used or intended to be used for the purposes contemplated by the Butler Act, Grantor shall have the right to reclaim all right, title and interest in and to said lands as part of the public trust lands. As specific authority for adopting the rule amendments, the Board cites Section 253.03(7), Florida Statutes. The specific laws being implemented by the Board are identified as Sections 253.03, 253.12, 253.129, and 253.43, Florida Statutes. Has the Board Exceeded its Rulemaking Authority? Petitioners collectively contend that the Board has exceeded its rulemaking authority by proposing amendments to Rules 18-21.019(1)(c)1.c., 2., 3., 6., 10., and 11., and Form No. 63-035(16). The Board has cited Section 253.03(7), Florida Statutes, as the source of its rulemaking authority. That subsection authorizes the Board to "administer all state-owned lands," to be responsible for, among other things, the "disposition of state-owned lands," and to adopt rules to "carry out the purposes of this act." The Board has also cited Section 253.129, Florida Statutes, as one of the statutes being implemented. It contends that under that statute, it has the specific authority to issue or deny "disclaimers" based upon standards and criteria contained in the new rule. For the reasons given in the Conclusions of Law portion of this Final Order, the challenged rules and form do not exceed the Board's rulemaking authority, and thus they are a valid exercise of delegated legislative authority. Do the Rules and Form Contravene the Law Being Implemented? Petitioners next contend that the same rules and form enlarge, modify, or contravene the specific provisions of law being implemented. For the reasons given in the Conclusions of Law portion of this Final Order, the challenged rules and form do not enlarge, modify, or contravene Section 253.129, Florida Statutes, and thus they do not violate Section 120.52(8)(c), Florida Statutes, as alleged by Petitioners. Are the Proposed Amendments Arbitrary and Capricious? Petitioners have also contended that the same rules and form are arbitrary and capricious, that is, they are not grounded on fact or logic, or based on a reasonable analysis. Section 18- 21.019(1)(c)1.c. provides a lengthy definition of the term "permanently improved." The first sentence of subparagraph 1.c. defines the following structures or improvements as falling within the purview of the rule: buildings, wharves, piers, dry docks, docks, boat houses, warehouses, dwellings, bath houses, marine railways, or other similar structures or improvements which improve or develop the riparian lands for the purposes of navigation and commerce was placed on sovereign submerged lands. Because some of the defined structures (wharves, warehouses, dwellings, and other buildings) are found in the Butler Act itself, and the others come from a string of judicial cases interpreting the Act, the first sentence is based upon a reasonable analysis and is thus not arbitrary or capricious. The second sentence provides that "[p]ermanent improvements are those structures or improvements which are continuing or enduring in the same state, status, and place without fundamental or marked change, and are intended to be fixed, lasting, and stable." This definition was drawn from the definition of the word "permanent" found in the 1979 Edition of Black's Law Dictionary. In doing so, the Board also noted that in DOAH Case No. 91-1408, CSX Realty, Inc. v. Bd. of Trustees of the Internal Improvement Trust Fund (DOAH, Recommended Order issued January 27, 1992)(no Final Order because of settlement), which involved an application for a disclaimer, the Hearing Officer relied on the same source to determine a meaning for the word "permanent." The use of a dictionary to define a word such as "permanent" is not arbitrary or capricious, and thus the rule is not invalid. The third sentence in the subparagraph addresses the issue of when dredging may be considered as a permanent improvement. It identifies one factor as being "relevant court orders which are rendered from time to time." Because of the current conflict in the law regarding dredged improvements, caused by conflicting District Court of Appeal decisions, the Board's reliance on "relevant court orders" to make this determination is based on logic and reason. The next challenged provision is paragraph (1)(c)2., which reads as follows: Lands below mean or ordinary high water line which were filled in, bulkheaded, or permanently improved prior to the applicable date under subsection (1)(a), above, but which are no longer filled in, bulkheaded, or permanently improved in whole or in part, when application is made, shall not qualify for a disclaimer under this rule. Under this criterion, an applicant would not qualify for a disclaimer if the submerged lands were "no longer filled in, bulkheaded, or permanently improved in whole or in part." The logic for this section is the Board's reasoning that fill and structures must be of a "permanent" nature, as the statute implies, in order to preclude public use. While this view is obviously subject to dispute by the parties, it cannot be said that it was based on whim, rather than reason. Therefore, it is not arbitrary and capricious. Paragraph (1)(c)3. essentially parrots the concept in the preceding paragraph, but also includes eroded lands. The inclusion of eroded lands was based on the Board's concept of boundary law, as it relates to water boundaries. For the same reason expressed in the previous finding of fact, the paragraph is found to be based on logic and reason. Petitioners next contend that paragraph (1)(c)6. is invalid on the same ground. It provides as follows: 6. The filling in, bulkheading, or permanent improvement shall have been made to improve or develop the submerged lands contiguous to the riparian upland property for purposes of navigation and commerce. Because the improvement of navigation and commerce is a purpose of the Butler Act and the incorporated Riparian Act of 1856, and the language is not inconsistent with case law, the Board used a reasonable analysis in developing this part of the rule. Petitioners also contend that paragraph (1)(c)10. is arbitrary and capricious. This lengthy paragraph identifies a variety of standards and criteria which the Board intends to use, on a case-by-case basis, to determine whether an improvement is "permanent." Starting with the premise that structures must be "permanent" in order for an applicant to qualify for a disclaimer, the Board developed the standards and criteria from case law interpreting the Act, the Act itself, administrative decisions, and dictionary definitions. The analysis is a reasonable one and sufficient to withstand Petitioners' attack. Paragraph (1)(c)11. provides that submerged lands to be disclaimed are subject to the "inalienable Public Trust," and they shall be available for the traditional public uses of fishing, boating, and swimming. Form 63-035(16), also being challenged, contains essentially the same language. The substance of the rule is drawn from parts of the Butler Act itself, which provides that submerged lands to be disclaimed are subject to the "inalienable trust" and public "trust." It also rests upon the Board's logical view that if submerged lands are no longer filled in, bulkheaded, or permanently improved, the public might reasonably assume that the open waters are available for the stated public uses. The Board's choice of language is arguably consistent with a recent appellate case on the subject which implies that when submerged land is no longer "completely foreclosed by development," the public can resume its rights. City of West Palm Beach v. Bd. of Trustees of the Internal Improvement Trust Fund, 23 F.L.W. D1387, D1389 (Fla. 4th DCA, June 10, 1998). Therefore, the provision has a reasonable and logical foundation. Are the Rules Vague, Standardless, and Overly Discretionary? Petitioners also assert that Rules 18-21.019(1)(c)1.c., 2., 3., 6., and 10., and Form No. 63-035(16) are vague, fail to contain adequate standards for agency decisions, or vest unbridled discretion in the Board. By stipulation only, but without specific pleading in their initial petitions, Petitioners have first contended that subparagraph (1)(c)1.c. is invalid for all of the above reasons. As noted earlier, this provision defines the term "permanently improved." Because the language in the definition is not so vague as to confuse a reasonably intelligent person, it is not unlawful. Moreover, through the use of definitions derived from a dictionary, the rule contains adequate standards to guide the agency's discretion. Finally, the rule does not vest unbridled discretion in the agency. Therefore, the rule is a valid exercise of delegated legislative authority. As to paragraph (1)(c)2., Petitioners claim that the rule fails to establish adequate standards for agency decisions and vests unbridled discretion in the Board by giving the Board the discretion to deny a disclaimer "for even minor changes in the improvement." In response to this objection, however, the Board has demonstrated that when the language in this paragraph is read in pari materia with the definition of "permanently improved," the Board must act under adequately defined standards using sound discretion. As to paragraph (1)(c)3., Petitioners contend that the rule is vague, fails to establish adequate standards for agency decisions, and vests unbridled discretion in the Board. As to vagueness, they argue that "there is no suggestion of how the state shall claim said lands as part of the public trust." They further contend that there are no standards to determine when land is no longer permanently improved, or when it is sufficiently eroded to trigger the Board's claim of right. Finally, they assert that there is no "reviewable language providing procedural due process to the land owner." In many respects, paragraph (1)(c)3. parrots paragraph (1)(c)2., except that it includes eroded lands. It is clear and precise, and it should not be confusing to a person of common intelligence. As to a lack of standards, the Board will be required to rely upon the definition of "permanent improvements" to guide its actions, and it will do so only after a physical inspection of the property is made, and the applicant is allowed to present evidence regarding his circumstances. As to an alleged lack of standards when land is eroded, the Board has relied upon the fact that under common law, the boundary is ambulatory, and a more definitive standard is not required nor practical. Therefore, the rule is not invalid. As to paragraph (1)(c)6., which generally requires that the permanent improvements have been made "for purposes of navigation and commerce," Petitioners contend that the rule is vague, fails to establish adequate standards for agency decisions, and vests unbridled discretion in the Board. More specifically, they contend that the rule fails to state whether the owners' original intent had to be for both navigation and commerce, and it allows the Board unbridled discretion "to evaluate the initial waterfront improvement when the statute does not require that each improvement meet any criteria related to purpose." Because the terms "navigation" and "commerce" are words that have a commonly accepted meaning, they are not unreasonably vague or confusing. Further, through existing case law on the subject, navigation and commerce are clearly linked to one another. Finally, in each application for a disclaimer, the Board's discretion is limited by the standards contained in the definition of "permanent improvements." Therefore, the rule is not invalid, as claimed by Petitioners. As to paragraph (1)(c)10., which identifies the criteria which the Board will consider in determining whether a structure is permanent, Petitioners first claim that the rule is vague because the terms "standing" and "things" are not defined, and the relationship of the structure to other considerations is not known. They further contend that there is no standard of review for the Board's case-by-case inquiry, and thus the Board has unbridled discretion. A dock or dwelling which is "standing" is not so vague as to confuse persons of common intelligence. Likewise, given the fact that so few cases have interpreted this body of law, with one exception, the six criteria within the rule do not constitute standardless discretion. However, a reasonably intelligent person would be required to speculate as to the meaning of the word "things" in the phrase "such other things as are specified by the courts from time to time." In addition, this language has the practical effect of giving the Board unlimited discretion as to when and if the "things . . . specified by the courts" may be used as a standard in future applications. Therefore, that portion of the rule is an invalid exercise of delegated legislative authority on the ground it is vague and standardless. Finally, Petitioners claim that newly added language in Form No. 63-035(16) is vague because it "creates confusion in the alleged rights of the public in [Petitioners'] land." They also argue that the language creates "no discernible standard to provide guidance to the [Board] in representing the rights and interests of the public in the remaining and adjoining river bottoms." As noted earlier, it is logical to make the assumption that the public could reasonably believe that open waters may be used for public purposes. Second, the Notice contained in the form is precise and clear, and none of Petitioners indicated they misunderstood its intent and purpose. Finally, as to the new criteria recited in the form, for the reasons expressed above, they do not vest standardless discretion in the Board. Therefore, the form is not invalid for these reasons. Is There Competent, Substantial Evidence? Finally, Petitioners allege that there is no substantial, competent evidence to support the amendments to Rules 18-21.019(1)(c)1.c. and (1)(c)3., and Form No. 63-035(16). More specifically, they contend that there is "no evidence" to support the Board's alleged right to reclaim privately-owned land solely due to passive ownership or nonuse. They also argue that there is no evidence that the non-use or non-permanence of prior improvements has any negative impact on the Board's interest in the remaining water body. As to the foregoing contentions, the record supports a finding that the challenged rules and form are based on competent, substantial evidence, and they are therefore valid.
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.
The Issue Whether Respondent violated the Florida Human Rights Act by maintaining racially segregated restroom facilities, as alleged by Petitioner; and, if so, the affirmative relief which should be granted.
Findings Of Fact At all times material hereto, the COMPANY operated a business establishment located at Pompano Beach, Florida. BOYKIN a black male, was employed by the COMPANY during a one-week period in 1978. During BOYKIN'S employment, the COMPANY maintained separate restroom facilities, segregated on the basis of race. (Testimony of Boykin.) The COMPANY'S two restroom facilities were racially segregated by the use of signs affixed to the outside door of each restroom--one sign labeled "Colored," and the other, "White." (Testimony of Boykin.) The COMPANY'S maintenance of racially segregated restrooms was offensive to BOYKIN, and the other black employees. (Testimony of Boykin.) As of September 26, 1980, the offending signs by which the COMPANY racially segregated its restrooms were no longer affixed to the restroom doors. (Viewing by hearing officer, accompanied by parties.) The COMPANY presented no evidence controverting BOYKIN'S allegation that it maintained racially segregated restrooms during the time in question. Neither did it assert a legitimate, nondiscriminatory purpose for maintaining segregated restroom facilities. BOYKIN presented no evidence to establish that the COMPANY employed 15 or more employees for each working day in each of 20 or more calendar weeks during 1977 or 1978.
Conclusions Conclusions: Respondent company maintained racially segregated restrooms for Petitioner and its other employees. The signs, by which the restrooms were labeled, "Colored" and "White" were no longer affixed to the restrooms at the time of final hearing. However, Petitioner failed to prove an essential elements of his claim-- that Respondent is an "employer" within the meaning of the Human Rights Act. Recommendation: That the Petitioner for Relief be DISMISSED. Background: On November 27, 1978, Petitioner Michael C. Boykin ("BOYKIN") filed with the Florida Commission on Human Relations a complaint of unlawful discrimination against Respondent H. L. Westberry Paving and Trucking Company ("COMPANY"). The gravamen of BOYKIN'S complaint was that he was subjected to an unlawful condition of employment by virtue of the COMPANY'S maintenance of racially segregated restroom facilities. After investigation, the Commission on Human Relations issued its determination that there was reasonable cause to believe that the COMPANY had engaged in an unlawful employment practice, as alleged, in violation of the Human Rights Act, Sections 23.161, et seq., Florida Statutes. After an unsuccessful effort to effect voluntary conciliation of the dispute, the Commission issued a Notice of Failure of Conciliation on June 11, 1980. Within the requisite 30-day period thereafter, BOYKIN filed a Petition for Relief from the alleged unlawful employment practice. Notwithstanding the COMPANY'S failure to file any pleading responding to BOYKIN'S Petition for Relief, or request a hearing thereon, the Commission forwarded it to the Division of Administrative Hearings on July 10, 1980, for the assignment of a hearing officer. By Notice of Hearing, final hearing was thereafter set for September 26, 1980. At final hearing, counsel for the COMPANY represented that on September 25, 1980, he received a telephone call from an unidentified employee of the Commission purporting to cancel the hearing scheduled for September 26, 1980. As a result, he asserted his witness was not present at final hearing; he then proffered that, if present, his witness could testify that signs indicating "Colored" and "White" were not now affixed to the doors of the separate restrooms located on the COMPANY'S premises. In order to avoid continuing the hearing, the parties agreed that the undersigned hearing officer should determine whether or not the described signs were present by conducting a viewing of the COMPANY'S premises. In light of this viewing, the COMPANY declined to request a continuance, and indicted that it wished to present no further evidence. The COMPANY also moved to dismiss the Petition for Relief, claiming that the Commission lacked jurisdiction based on: (1) federal preemption of the area by Title VII of the Civil Rights Act of 1964, and (2) failure of the Commission to complete its proceeding within 120 days from the Federal Equal Employment Opportunity Commission's deferral of this matter to the Florida Commission on Human Relations. Respondent's Exhibit 1 was offered, and received in support of the motion, after which the motion was denied. The only witness who testified at final hearing was BOYKIN. No other exhibits were offered by either party. The Florida Commission on Human Relations was not represented at final hearing; BOYKIN represented himself, in proper person, and without assistance by the Commission.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is Recommended: That the Petition for Relief filed by Petitioner be DISMISSED. DONE AND ENTERED this 10th day of October 1980 in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of October 1980. COPIES FURNISHED: Michael C. Boykin 801 Powerline road, #161 Pompano Beach, Florida 33060 Thomas P. Quinn, Esquire 2455 East Sunrise Boulevard Suite 605, International Building Fort Lauderdale, Florida 33404
Findings Of Fact The Subject Property. During 1973, Mode, Inc., applied for and obtained approval of Planned Unit Development (hereinafter referred to as "PUD") zoning for approximately 620 acres of real property known as Ridaught Landing located on County Road 209 in Clay County. In December of 1986, Mode, Inc., sold approximately 470 acres of Ridaught Landing to Village of Fireside, Inc. This 470 acre parcel (hereinafter referred to as the "Property"), is the subject of this proceeding. Purchase money financing and construction financing for the purchase and development of the Property was provided by Barnett Bank of Jacksonville, N.A. (hereinafter referred to as "Barnett"). In November of 1988 Barnett assigned its interest in the Property to the Petitioner simultaneously with the closing of financing by the Petitioner on the Property to Villages of Fireside, Inc. Villages of Fireside, Inc., subsequently defaulted on its indebtedness to the Petitioner and in April, 1992, the Petitioner accepted a Deed in Lieu of Foreclosure for the Property. Development of the Property; Government Action Relied Upon by the Petitioner. In November of 1985, the PUD was amended. As a condition of the amendment, Clay County required that 212 acres of uplands and associated wetlands be dedicated to a homeowner's association associated with the Property. The 212 acres were to be used as preservation area and for the construction of nature walks, gazebos and recreational areas. In January of 1988 Villages of Fireside, Inc., applied for approval of a further amendment to the PUD. Among other things, approval of a separate entrance to the Property was requested. The amendment was approved. As a result of the January, 1988 amendment, the PUD properties are to be developed as two separate subdivisions, known as Ridaught Landing and the Villages of Fireside. Development of the Villages of Fireside subdivision was approved for up to 400 single-family dwelling units within the residential portion, (b) 16 acres of recreational and private services uses, including a day-care center and a private park, and (c) the 212 acre preservation area. Villages of Fireside, Inc., submitted a plat to Clay County for the Villages of Fireside subdivision Unit One in 1988. The final plat for Unit One was approved March 22, 1988. Clay County required that the entrance to Unit One be constructed with an 80 foot right of way to accommodate the development of the entire project as approved by the PUD, as amended. The Petitioner's Detrimental Reliance. In reliance upon Clay County's approval of the PUD and amendments thereto and approval of the final plat of Unit One Villages of Fireside, Inc.: Constructed master infrastructure improvements (water and sewer systems, master roads and an oversized drainage facility) for the project at a cost of approximately $706,427.00. These improvements were made between February and October of 1988. Constructed entry features for the project at a cost of approximately $21,465.00. These improvements were made between December of 1988 and June of 1989. Constructed a nature walk through the 212 acre preservation area at a cost of approximately $97,593.00. These improvements were made between November of 1988 and January of 1989. Upon the assignment of Barnett's interest in the Property to the Petitioner in November of 1988, financing by the Petitioner for the Property to Villages of Fireside, Inc., closed. The Petitioner, therefore, refinanced construction of improvements made by Villages of Fireside, Inc., in reliance on Clay County's approval of the PUD, with amendments, and the final plat for Unit One. The Petitioner refinanced the project in reliance upon Clay County's approval of the PUD, with amendments, and the final plat for Unit One. The Petitioner considered the PUD zoning to be true and correct at the time of refinancing and the Petitioner's loan officer believed that the Property was approved for development of at least 400 single-family residential units at the time of refinancing. In reliance on Clay County's actions, proceeds were distributed by the Petitioner for construction of the nature walk through the 212 acre preservation area. The Petitioner also released the 212 acre preservation area from the lien of its mortgage on the Property so that it could be conveyed to the homeowner's association as common area. This release was made in reliance on Clay County's actions. Rights That Will Be Destroyed. Development of the Property will impact County Road 220. Pursuant to the Clay County 2001 Comprehensive Plan, there is insufficient capacity on the portion of County Road 220 that will be impacted by development of the Property to accommodate traffic projected to be generated by the Property as approved. If the Petitioner must comply with the Clay County 2001 Comprehensive Plan it will be required to delay completion of the project until County Road 220 is improved. Such a delay will have a substantial adverse financial impact upon the Petitioner. 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 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.
Findings Of Fact The DCA Determination was issued by Respondent DCA on December 22, 2005. The DCA Determination included a "Notice of Rights" which stated that any substantially affected person may request a hearing from DOAH "within 21 days from the date of this determination." Twenty-one days from the date of the DCA Determination was January 12, 2006. In the original petition, it was alleged that Petitioners received notice by mail "on or about December 26, 2005." At the hearing, Petitioner Brown stated that she received a copy of the DCA Determination on December 24, 2005, two days after it was issued, but one of the Petitioners (apparently Leslie Pennell) received notice on December 27 or 28, 2006. Petitioner Brown read the Notice of Rights statement in the DCA Determination, but she thought it was inaccurate because she perceived it to be inconsistent with Sections 163.3213(5) and 120.569(1), Florida Statutes. She researched other statutes and rules to resolve this perceived inconsistency. Petitioner Brown's research led her to Florida Administrative Code Rule 28.106.111(2),2/ which states: "Unless otherwise provided by law, persons seeking a hearing on an agency decision . . . shall file a petition within 21 days of receipt of written notice of the decision." Petitioner Brown concluded that the petition could be filed 21 days from her receipt of written notice of the DCA Determination. On January 12, 2006, Petitioner Brown placed a telephone call to DOAH "to ensure that [she] was interpreting the rules correctly." She spoke to Robert Williams, deputy clerk of DOAH. She claims that Mr. Williams confirmed that the deadline for filing the petition was 21 days from her receipt of written notice, and she relied on Mr. Williams' statements in filing the petition on January 17, 2006. Twenty-one days from Petitioner Brown's receipt of notice was January 14, 2006, but that was a Saturday and the following Monday was a state holiday (Martin Luther King, Jr. Day), so she filed the petition on Tuesday, January 17, 2006. Mr. Williams had no recollection of having a telephone conversation with Petitioner Brown on January 12, 2006. Petitioner Brown produced her telephone bill for the month of January which indicates she made a five-minute call to DOAH on January 12, 2006. The telephone bill, of course, does not indicate who she talked to at DOAH. The first telephone conversation Mr. Williams can recall having with Petitioner Brown was during a call he initiated on January 17, 2006, to tell her she had filed the petition in the wrong place. Mr. Williams thought the petition should have been filed with the DCA. Mr. Williams testified that during his telephone conversation with Petitioner Brown on January 17, 2006, he went on the DOAH website and read some of "DOAH's rules" with her. He does not recall discussing the issue of her filing deadline. Mr. Williams stated that he never tells people when they must file a petition. When asked such a question, he always refers the person to the agency that issued the order. Mr. Williams expressed confidence that he never told Petitioner Brown when she had to file her petition with DOAH. Mr. William's testimony is credible and is consistent with the fact that, on January 12, 2006, he still thought any petition to challenge a decision made by the DCA had to be filed with the DCA, not with DOAH. Furthermore, it is unlikely that Mr. Williams would have forgotten a conversation with Petitioner Brown on January 12, 2006, if, on that date, he had deviated from his consistent practice not to tell people when their petitions must be filed. Petitioner Brown never described precisely the statements allegedly made by Mr. Williams on January 12, 2006, upon which she relied. His statements were simply characterized as having "confirmed" that the petition could be filed 21 days from Petitioners' receipt of notice. Petitioners did not allege or prove that Mr. Williams understood or addressed the specific procedural issue of whether the filing deadline indicated in Section 163.3213(5), Florida Statutes, and stated in the DCA Determination, was controlling, or, whether the filing deadline was governed by Rule 28-106.111(2). Because Petitioner Brown had already concluded that she could file the petition 21 days from her receipt of notice of the DCA determination, it is likely that she interpreted Mr. Williams' statements as confirming that conclusion, even though Mr. Williams did not understand the premises of her conclusion, did not intend to confirm her conclusion, and, in fact, did not confirm her conclusion. Petitioners did not allege there were circumstances that made filing their petition on January 12, 2006, impossible or unreasonably burdensome. Petitioners' decision to file their petition on January 17, 2006, was based on simple error and was not for the purpose of delaying the proceedings or to otherwise prejudice any party. The record contains no evidence that the untimely filing of the petition in this case has prejudiced Respondents.
Findings Of Fact Mini-Warehouses at Kendall, Ltd. d/b/a A+ Mini-Storage (KENDALL) is a Florida partnership maintaining its principal place of business at 12345 S.W. 117th Court, Miami, Florida. DOT is a decentralized state agency. It has established several districts of which District 6, Dade County, is one. DOT's central office is located in Tallahassee, Florida. At all times material hereto, KENDALL held title to all privately owned real property, hereinafter abutting parcel, located adjacent to real property owned by the Florida Department of Transportation (DOT), hereinafter surplus property, situated in Dade County, Florida. Surplus properties are oddly-shaped strips of land left over from parcels acquired by the State of Florida. The subject surplus property is of no use to the State and can only be used for a few economic purposes. It has utility value for the abutting property. KENDALL's abutting parcel is fully developed with buildings divided into mini-storage units being rented to the public and is zoned IU-C, Industrial/Conditional - Manufacturing. The east side of KENDALL's property abuts the surplus property. The surplus property and the abutting property are located in DOT's District 6. DOT identifies the surplus property as parcel no. 0739 which is a long, narrow right-of-way, consisting of .927 acres. It is 29 to 67 feet wide and approximately 950 feet long. The surplus property is zoned EU-M, Residential. On June 28, 1985, DOT and KENDALL entered into a written surplus property lease (original lease) for the subject surplus property. The original lease was automatically renewable and could be cancelled by either party with 30 days prior notice. Leasing the surplus property allowed KENDALL to reduce the amount of damage that the state's storm water runoff would otherwise cause to its abutting property. KENDALL was required by the original lease to pay DOT $2,400 annually, plus sales tax, for the use of the surplus property. KENDALL made the payments from 1985 to 1991. By letter dated May 3, 1991, DOT's District 6 office informed KENDALL that: (a) the original lease was unilaterally terminated; (b) KENDALL would be required to execute a renewal lease for 5 years with an option to renew for 5 more years, at an annual rate to be determined; (c) KENDALL might want to hire an independent appraiser from DOT's approved list of independent fee appraisers; and (d) KENDALL would have to negotiate a fee with the appraiser. Wanting to continue to lease the surplus property, KENDALL chose an appraiser from DOT's approved list of independent fee appraisers and hired him to appraise the surplus property. Per DOT's instructions, the independent appraiser contacted District 6's chief review appraiser for further instructions regarding the appraisal. The appraiser hired by KENDALL had a long working relationship with DOT. Throughout the 1980's to 1991, DOT and District 6 had accepted surplus property appraisals, without exception, from the appraiser that: (a) used only the contributory value method as a starting point in the appraisal process for fair market rent; (b) determined the fair market value that the surplus property would bring in a sale open to the public; and (c) made necessary market-based adjustments to arrive at a final figure, which was somewhere between the figure obtained in (a) and the figure obtained in (b), which represented the fair market rent for the surplus property. However, involving the surplus property at KENDALL, District 6's chief review appraiser informed the independent appraiser that only the unmodified across the fence or contributory value method would be acceptable when estimating rent that DOT should seek for the surplus property. Moreover, the chief review appraiser informed him that any other method would result in his appraisal being rejected. The chief review appraiser informed the independent appraiser that the factors to be used and considered were: (a) the surplus property's contributing value to KENDALL, as if the abutting property was vacant; and (b) a market rate of return based on the contributing value to KENDALL for fee simple ownership in perpetuity even though the renewal lease only conveyed surface rights, subject to a 30-day cancellation clause. In other words, District 6's chief review appraiser was instructing KENDALL's appraiser to use the across the fence appraisal method. This appraisal technique involves the following actions: Estimate the market value of the surplus property and the abutting property, as assembled. Estimate the market value of the abutting property, as it exists (without the surplus property added). Subtract the estimated market value of the abutting property, as it exists, from the estimated market value of the assembled abutting and surplus properties. The difference between the two value estimates should yield a supportable indication of market value for the surplus property. KENDALL's independent appraiser followed the instructions of the chief review appraiser for DOT's District 6. Because of the very limited market data for surplus property leases, KENDALL's appraiser requested DOT's surplus property lease data for Dade County from the chief review appraiser; however, he received no response to his request. Without the requested data, KENDALL's appraiser was unable to use a lease data comparison. In his appraisal, he relied upon market data of the sales of commercial land, exclusively, and determined that the surplus property's highest and best use is to serve as a storage yard for parking trailers and boats, assuming the surplus property could be rezoned or a variance obtained to permit that use. Based upon the assumption of vacant or undeveloped commercial property and rezoned or variance surplus property for commercial use as a storage yard, the independent appraiser determined that the market value of the surplus property in fee simple was $128,000. He further ascertained that an investor would be satisfied with a 10 percent yield and determined that the across the fence value is an annual rent of $12,800 for a 50 to 100 year lease term, which is the prevailing market rent for the surplus property. The appraisal was accepted by DOT. Not agreeing with the across the fence method, KENDALL obtained approval from DOT for the submission of a second appraisal for the surplus property. DOT agreed but on the condition that the second appraisal had to be submitted by December 31, 1991. For the second appraisal, KENDALL'S independent appraiser used the method which he used previously and which was historically accepted by DOT. Again, he determined that the highest and best use of the surplus property was a storage yard, assuming that it could be rezoned or a variance obtained to permit such use. He then determined, as before, that the contributory value (across the fence) value of the surplus property in fee simple was $128,000. Subsequently, the appraiser determined that the fair market value of the surplus property was $32,000 if rezoned and sold in fee simple to the public, including KENDALL. Finally, contrary to the first appraisal, the appraiser determined that the fair market rent for the surplus property was $3,000 a year if the entire parcel could be used as a storage yard and that the surplus property would only produce a nominal rent of $100 a year if leased to the general public. The second appraisal was submitted by DOT's imposed deadline. By letter dated October 9, 1991, the chief review appraiser for DOT's District 6 notified all approved appraisers on its list, including KENDALL's independent appraiser, of the surplus property appraisal policy that would be used. It states in pertinent part: SUBJECT: A STATEMENT OF DISTRICT APPRAISAL POLICY SURPLUS PROPERTY APPRAISALS - THE VALUATION PROCEDURE [I]t is inequitable to examine surplus properties without some evaluation of the abutting property. To be consistent in the appraisals for acquisition and those for sale by the Florida Department of Transportation, subjects should be estimated at their "ATF" or "Across The Fence" value. The surplus property appraisals should be addressed in the same way a "before and after" appraisal is conducted. The current Right of Way Appraisal Standards would be applicable in this assignment. The recommended appraisal procedure for surplus properties will be: Estimate the market value of the surplus property and the abutting property, as assembled. Estimate the market value of the abutting property, as it exists (without the surplus property added). Subtract the estimated market value of the abutting property, as it exists, from the estimated market value of the assembled abutting and surplus properties. The difference between the two value estimates should yield a supportable indication of market value for the surplus property. This process is logical and it appears to be reflective of the market. The appraisal problem is complicated by this procedure, but the result should be a more accurate and consistent estimate of market value of surplus property. In late 1991 or early 1992, KENDALL started the process to obtain a variance from Dade County. In accordance with DOT's requirement, KENDALL absorbed the costs associated with obtaining the variance. As of the date of hearing, KENDALL had expended between $10,000 and $15,000. Generally, the landowner is responsible for obtaining the variance or rezoning necessary for a lessee to use a leased parcel for its highest and best use. However, if the landowner is not obtaining the variance or rezoning, generally, the lessee receives a reduced rental rate. In July 1992, the chief review appraiser for DOT's District 6 notified KENDALL that the second appraisal was rejected. He rejected the appraisal without reviewing it. Based on the accepted appraisal, DOT determined that the prevailing market rent for the surplus property was $12,800, plus tax, annually and assessed KENDALL accordingly. Wanting to continue to use the surplus property, KENDALL paid DOT $2,544 as partial payment of the annual rent, plus tax, for the initial year of renewal beginning June 28, 1991 and paid $24,617 for outstanding rent, plus tax, for the period June 28, 1991 through June 27, 1993. KENDALL has continuously paid the annual rent required by DOT. In May 1994, Dade County issued KENDALL a conditional variance. Assuming KENDALL satisfies numerous local concurrency and planning requirements, the final variance will permit it to use no more than 60 percent of the surplus property for storage purposes. Until rezoning or a variance is obtained, the market rent of the surplus property is $100 to $500 annually according to KENDALL's appraisers. A real property appraisal is expected to use an appraisal technique which reveals the maximum market value at a given time for the property being appraised. Several appraisal techniques are recognized and accepted by the appraisal profession, including across the fence method or technique. The appraiser initially determines the highest and best use of the parcel being appraised. Then, the sale value of the parcel is determined. The appraised market value is the base for establishing a market rental value for the property. The appraisal technique or method for surplus property can vary from parcel to parcel. Appraisal methods or techniques other than the across the fence method have been used by other DOT approved appraisers when appraising the fair market value for surplus property and have been accepted by DOT. Usually, surplus properties have a higher value when a contributing value appraisal technique (across the fence technique) is used because such properties are generally small in size and irregular in shape. The prospective buyer for surplus property is generally limited to the abutting parcel user or its competitors. District 6's chief review appraiser erroneously refused to consider any other appraisal value method, other than the across the fence method, to value the surplus property. DOT admits that its chief review appraiser in District 6 should not have required KENDALL's independent appraiser to use only the across the fence method to determine fair market rent for the surplus property. For the subject surplus property the market data for leases of DOT's surplus properties in Dade County would have been appropriate data to use in the appraisal. Even though DOT failed to provide KENDALL's appraiser with the market data, DOT did have such data for four leases executed between October 1989 and January 1991. These leases, as is KENDALL's lease, were only for surface use, subject to a 30-day cancellation clause. The data showed that the cancellation clause significantly reduced the market rental rate when leasing surplus property and that the market rental rate of return was between 1.89 percent and 2.62 percent per year to the respective owners. The data from DOT's surplus property leases would have been used by KENDALL's appraiser if it had been provided to him. Based upon the data of the surplus property leases, KENDALL's appraiser determined that the owner of the surplus property would receive annual rent equalling between 1.89 percent and 2.62 percent of the amount that the surplus property would produce if it was fully developed as commercial property and sold in fee simple. In February 1994, KENDALL obtained the services of another appraiser from DOT's approved list of independent appraisers to perform an independent appraisal for the fair market value of the surplus property for the period beginning July 1, 1991. Prior to obtaining his services, KENDALL did not request DOT to accept another appraisal. First, the appraiser determined that comparably-sized commercial property in Dade County, providing maximum utility, had a fair market value of $140,000 in a fee simple sale. Next, he determined that the highest and best use of the surplus property was for storage purposes, which reduced the value of the surplus property in fee simple by 57 percent. Even though the appraiser determined that KENDALL was the logical purchaser of the surplus property, he also determined that, due to KENDALL having fully developed its abutting property and not being able to economically build on the surplus property, the surplus property would not provide a maximum utility to KENDALL's abutting property. Based upon such market factors, the appraiser determined that the surplus property had a fair market value of $35,000 if sold in fee simple for storage purposes. Therefore, assuming a variance or rezoning could be obtained by KENDALL to use the surplus property for storage purposes, the appraiser determined that the fair market rent for the surplus property was $3,500 as of July 1, 1991. DOT never performed an appraisal of the surplus property.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that DOT enter a final order that the market rental value assessed to the surplus property leased to and paid by KENDALL is invalid, as exceeding prevailing market rent, that the prevailing market rent for the surplus property is $3,000 annually and that DOT refund to KENDALL the difference between a market rent of $12,800 annually and $3,000 annually, beginning in November 1993. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 2nd day of March 1995. ERROL H. POWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of March 1995
