The Issue Whether Scott S. Carswell, The Moon Property (Petitioner), has demonstrated that development rights in certain real property it owns have vested against the provisions of the Tallahassee-Leon County 2010 Comprehensive Plan.
Findings Of Fact Chronology The property on which "The Moon" building is located was initially purchased by Grant Peeples and Scott S. Carswell in 1984. The Peeples/Carswell partnership filed bankruptcy in December 1986, and "The Moon" was closed in April 1987. In December 1987, Moon Management, Inc. (Scott S. Carswell and Tallahassee Entertainment Facility, Inc.) executed a partnership agreement to reopen "The Moon" and continue its operations. In December 1988, Scott S. Carswell, Moon Management, Inc., repurchased the Moon property from the Florida National Bank. In November 1989, the Respondent City of Tallahassee published a caveat announcing the preparation of the 2010 Comprehensive Plan and advising that land use designations would be changed pursuant to the Plan. On February 1, 1990, the Respondent submitted its 2010 Comprehensive Plan to the Florida Department of Community Affairs. In March 1990, Petitioner entered into a 50 year lease agreement for the property at issue, which is vacant property immediately east of the property on which "The Moon" building is located. This agreement also provided for Petitioner's purchase of a 10 foot by 330 foot parcel immediately west of the "Moon" property. Zoning History The property at issue in this proceeding is part of a portion of property located on the south side of Lafayette Street between Seminole Drive and Magnolia Drive in the City of Tallahassee. The development project Petitioner seeks to have vested would involve commercial development of vacant land located between the existing "Moon" building and an existing strip shopping center. With the exception of the vacant property, the entire parcel on the south side of Lafayette Street between "The Moon" building and parking lot and Magnolia Drive to the east, is currently developed and houses commercial business enterprises. Petitioner leased the subject property from Alban Stewart in March 1990. This property has been zoned for commercial uses since 1955. The Stewart family began developing property within the tract in 1960. The building occupied by "The Moon" was constructed in 1962. "The Moon" building was originally constructed for, and occupied by, a super market. Since this building was sold to Scott S. Carswell and his partners in 1984, the building has been occupied by "The Moon" and, with the exception of a short period while "The Moon" was in bankruptcy, has operated as a commercial entertainment facility. In 1988 Petitioner Carswell attempted to obtain approval from the Respondent City of Tallahassee to expand "The Moon" operation on property west of the existing building. Petitioner's requested variance was not granted because the proposed expansion encroached into a buffer zone between "The Moon" facility and Seminole Drive. During negotiations with Respondent regarding this 1988 zoning variance request, City officials suggested that Petitioner consider developing east of "The Moon" facility, which was at that time zoned for commercial use. When Petitioner Carswell was unable to obtain a variance to proceed with his plans to expand west of "The Moon" building, he began plans and negotiations to develop east of the existing facility. Theee plans and negotiations culminated in the lease agreement which Carswell entered into with Alban Stewart in March 1990. In the meantime, the 2010 Comprehensive Plan was adopted by the Respondent and submitted to the Department of Community Affairs in February 1990. Land use provisions within the Plan changed the zoning of the property at issue to a designation of residential preservation. The residential preservation designation does not permit the Petitioner's development for commercial purposes. The property at issue does not meet any of the Comprehensive Plan criteria for residential preservation designation. Permitting Construction for the proposed expansion has not been undertaken. No permits have been issued for any structures on the proposed development. There have been no plat approvals for the structures in the proposed development. Petitioner's Application for Vested Rights On or about October 3, 1990, Scott S. Carswell filed an Application for Vested Rights Determination (hereinafter referred to as the "Application"), with the Tallahassee-Leon County Planning Department. (Application VR0082T) The following information concerning the development of The Moon property was contained on the Application: "Scott S. Carswell is listed as the President, Tallahassee Entertainment Facility, Inc." The project is described as consisting of "existing commercial uses of property as well as uses proposed for property." The property location is described as "on Lafayette Street between Seminole Drive and Magnolia Drive and contains approximately 9.39 acres as shown in Exhibit 4, site plan." as: "Progress . . . Toward Completion" is described plans (R 2, p. 20, Line 9-21, Line 13). purchase of fixtures (R-2, p. 21, Line 22, p. 22, Line 10). lease of property (R-2, p. 23, Line 9-17). Expenses for proposed facility March 31, 1990, lease agreement for $3,200 per month. (R-1, Exhibit 8c) July 19, 1990, The Moon Expansion for $5,000. (R-1, Exhibit 8c) March 6 - April 30,1990,"Club Development $9,231.83." (R-1, Exhibit 8d) May 25,1990,Planning cost.(R-1, Exhibit 8e) Planning Dates September18,1990,Captain Tony's proposal. (R-1, Exhibit 5d) May 25,1990, letter of interest for Captain Tony's. (R-1, Exhibit 7 A-4) April 4, 1990, completed plans for project, estimate of costs. (R-1, Exhibit 7 A-5) The Application lists substantial additional expenses which were in fact associated with the original structure and operation of "The Moon" and do not relate to Petitioner's proposed expansion/development. Common Law Vesting Petitioner seeks approval of the Application for Vested Rights based upon the common law vesting provisions pursuant to the City of Tallahassee Ordinance 90-0-0043AA. Petitioner does not assert a claim of statutory vesting.
Findings Of Fact Purchase of the Subject Property. The property at issue in this proceeding consists of approximately fifty-two acres (hereinafter referred to as the "Subject Property"). The Subject Property was acquired by Charles L. Parham in 1988 from Forest Hills, Inc. The Subject Property is located in a rural, undeveloped portion of southern Clay County (hereinafter referred to as the "County"). The Subject Property was part of a larger tract of undeveloped, real property known as "Forest Hills." The southwestern corner of Forest Hills is bounded by State Road 100. At the time the Subject Property was purchased it was zoned Agriculture. This classification allowed use of the Subject Property for single-family residential development at a density of one unit per acre. The Subject Property was purchased by the Applicants for development as single-family sites which they intended to sell or rent and to use for their own residential purposes. Access to the Subject Property was obtained through easements (Forest Hills Road and Lone Pine Trail) from State Road 100. It is approximately one and three-quarters of a mile from State Road 100 to the Subject Property. At the time of purchase of the Subject Property by Mr. Parham, Mr. Parham was provided with a certified Boundary Survey map by Forest Hills, Inc. The Boundary Survey was certified by a land surveyor and was dated November 2, 1978. The Boundary Survey provided to Mr. Parham represented the Subject Property as consisting of forty-four tracts of approximately one acre each and four lots of approximately two acres each. Neither the Subject Property nor Forest Hills has ever been platted. That is, there is no plat of record in the Official Records of Clay County, Florida. The Applicants made the erroneous assumption that the Subject Property was platted. They made this assumption because of the Boundary Survey they were provided by Forest Hills, Inc., which depicted the division of the Subject Property into lots. The Applicants also believed that the Subject Property was platted because no one at County offices where they showed the Boundary Map told them differently. The evidence failed to prove, however, that any employee of the County told them that the Subject Property was in fact platted. The evidence also failed to prove that the County was responsible for the assumption of the Parhams that the Subject Property was platted. Development Activities on the Subject Property. The Applicants cleared and graded roads through the easements to the Subject Property. Applicants also maintained two other roads located in Forest Hills: Cactus Hill Road and Lone Pine Trail. The Applicants also cleared and graded two interior roads which dissect Forest Hills. Applicants named the interior roads "Viking Street" and "Valhalla Street". The clearing and grading of roads was performed by Applicants in order to gain access to the Subject Property for themselves and potential renters. The Applicants also cleared part of the Subject Property for their own use. Mr. Parham purchased a bulldozer prior to the purchase of the Subject Property. The bulldozer was purchased for use in developing the Subject Property for use by the Applicants as a residence, for use in developing the Subject Property for rental and for use in Mr. Parham's business. All labor in developing the roads to and on the Subject Property has been provided by Applicants. Expenses for maintenance, repair and use of the bulldozer were incurred by Applicants. Applicants purchased fill dirt and clay which was used in clearing and grading access and interior roads. Prior to the enactment of the Clay County 2001 Comprehensive Plan (hereinafter referred to as the "Plan"), Applicants sold two two-acre tracts to Inger Robertson and to Julian Wood. Although the deeds on the sale of these lots mentioned the tract numbers, they also described the property sold by metes and bounds. The property would not have been described in this manner if the property were part of a platted subdivision. Applicants were left with forty- eight tracts. Inger Robertson applied for and received a mobile home permit for her two-acre parcel in 1990. Applicants also applied for and received mobile home permits for two one-acre tracts. One mobile home was used as their residence. The three mobile home permits issued for part of the Subject Property were issued prior to enactment of the Plan. They were also issued consistent with then existing law allowing single family units on one acre parcels. Petitioners' Alleged Detrimental Reliance. At the time the Applicants obtained their two permits, the Boundary Survey showing the lot division of the Subject Property was shown to County staff and the Applicants' plans with regard to development of the Subject Property were disclosed. At the time of the acquisition of the permits from the County, the Applicants' intended use of, and development plans for, the Subject Property were consistent with County laws. No approval or other permits were required by County law in order for the Applicants to utilize and develope the Subject Property in the manner they intended. They were only required to comply with existing zoning requirements, which restricted residential use of property to one residence per acre. This the Applicants did with regard to their residence and two other tracts. They failed to obtain permits, however, for the other tracts on the Subject Property. The evidence failed to prove that the Applicants' were informed by the County that their proposed use and development of the Subject Property was "approved" or otherwise "authorized." The Applicants have not asserted that the County took any affirmative action which led them to believe that their planned development of the Subject Property was "approved". Instead, the Applicants have asserted that the County was under an obligation to tell them that the Subject Property was not, in fact, platted, and they were required to take certain actions to insure that they could develop the Subject Property as planned. The evidence failed to prove that the County was under any such obligation. The evidence also failed to prove that the Applicants asked County staff what steps they were required to take in order to insure the immediate development of the Subject Property. In 1988, the Applicants informed the County of the naming of the two roads created on the Subject Property and were given street addresses for each of the tracts identified on the Boundary Survey. The Boundary Survey was left with County staff to make a copy of for the County's records. Each of the tracts was identified for the County's 911 emergency telephone service. The assignment of names to the interior streets and street numbers to the lots was consistent with then existing law. These County actions are not the type of actions which would justify a conclusion that density limitations with regard to the Subject Property would not change. Rights That Allegedly Will Be Destroyed. On January 23, 1992, the County's Board of County Commissioners adopted the Plan. Included in the Plan is a Future Land Use Element, including Future Land Use Maps (hereinafter referred to as the "FLUM"). The Subject Property (and all of Forest Hills) is located in an area classified on the FLUM for "Agriculture/Residential Land Use". This designation allows the use of the Subject Property for single-family residential development. Density, however, is limited to one unit per ten acres. As a result of the Plan and the designated land use classification of the Subject Property, the Subject Property may not be developed as one-acre single-family residences. The result of this restricted land use, the number of individual, developable lots on the Subject Property has been reduced. This reduction in developable lots adversely impacts financing of the Subject Property. The Applicants learned of the adoption of the Plan and its impact on the Subject Property in November of 1992 when they attempted to obtain additional permits for the Subject Property.
The Issue Whether Petitioner should be granted the relief requested in his petition challenging the Department of Environmental Protection's Consolidated Notice of Denial [of] Environmental Resource Permit and Consent of Use to Use Sovereign Submerged Lands.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: Petitioner is a collector and wholesaler of various "saltwater products," as defined in Chapter 370, Florida Statutes.1 He possess a saltwater products license (issued pursuant to the provisions of Chapter 370, Florida Statutes, and Chapter 46-42, Florida Administrative Code), with a restricted species and marine life endorsement, which allows him to engage in these activities. Petitioner collects and sells, among other things, what is referred to as "live sand," a calcium carbonate sediment used in public and home aquaria as a decorative detoxifying agent. "Live sand" is found on offshore water bottoms in the Florida Keys (where Petitioner engages in his collection activities) and other areas in Florida. "Live sand" consists primarily of the calcified (dead) remains of Halimeda plants. Halimeda plants (generally on a seasonal basis) produce plates, which they ultimately shed. These plates, through various physical and biological processes, are broken down over time into smaller and smaller granules. Halimeda plants are very productive (in terms of the number of plates they produce), but they are found only in certain (not all) offshore areas in the Florida Keys. While the granules that make up the "live sand" Petitioner collects and sells consist of dead plant matter, thousands of micro and macroorganisms (in a cubic foot area), representing numerous species, live amongst these granules and therefore are also removed from the water as a result of Petitioner's collection activities. The microorganisms living in "live sand" include nitrosomous bacteria. The presence of nitrosomous bacteria enables "live sand" to neutralize the ammonia waste products of fish in public and home aquaria. Among the macroorganisms living in "live sand" are mollusks, worms, arthropods, and echinoderms. These organisms are an important part of the diet of other species, including protected species such as the spiny lobster (Panulirus argus), which itself is part of the food supply for fish in the area. Petitioner collects "live sand" by diving underwater and using his hands to scoop up and place in buckets the top layers of the bottom ("live sand") substrate. Such collection activities have negative environmental consequences that are not insignificant. They adversely impact water quality in the waters in which they occur and in adjacent waters inasmuch as they increase turbidity and reduce biological diversity. Excavation of the top layer of bottom substrate exposes the siltier sediment below, which, when disturbed, reduces water clarity and therefore also the amount of sunlight that penetrates the water. Furthermore, this newly exposed substrate, because of its anaerobic nature, is unable to attract a significant benthic community comparable to that found in the "live sand" that previously covered it. In addition, because these collection activities result in the removal of organisms that are important components of the aquatic food chain and in loss of their habitats, these activities have an adverse effect on marine productivity and, resultantly, on fishing and recreational values. The "live sand" that is the subject of the instant controversy is located in Monroe County within the boundaries of the Florida Keys National Marine Sanctuary in state waters designated Class III, Outstanding Florida Waters (OFW).2 Petitioner first contacted the Department in writing regarding the removal of this "live sand" in May of 1997, when he sent the Department a letter which read, in pertinent part, as follows: REF: Collection of Sand for Use in Aquari[a] Pursuant to our recent telephone conversation, I respectfully request that I receive a letter of de minimis for the aforementioned activity. The sand is collected by hand using five gallon buckets. The collection occurs under water [at] a depth of approximately 20 feet. The sand occurs in an area devoid of marine grasses, plants and corals. No sand is taken from or near shorelines and no sedimentary resultant is produced. I intend to collect four five gallon buckets each of which contains 50 pounds of sand. This collection is to occur once a month. . . . By letter dated June 2, 1997, the Department acknowledged receipt of Petitioner's letter and requested that he provide "additional information" to enable the Department to determine whether it should grant him "an exemption from the need for an Environmental Resource Permit pursuant to Part IV, Chapter 373, Florida Statutes (F.S.), and an authorization to use state- owned submerged lands, pursuant to Chapters 253 and 258, F.S., to collect sand, by hand, from underwater." On August 28, 1997, Petitioner supplied the Department with an "addendum to [his] original request for consideration" in which he specified the location of his "proposed collection" of "live sand" as "Lat. N 24.31.29 - Lon. W 081.34.40. The Department deemed Petitioner's "addendum" insufficient to render his paperwork "complete." By letter dated September 23, 1997, the Department so advised Petitioner. Along with letter, the Department provided Petitioner with the following "revised request for additional information identifying the remaining items necessary to complete [his] application": Part I REVISED COMPLETENESS SUMMARY FOR SAND COLLECTION The proposed project will require an Environmental Resource Permit. The correct processing fee for this project is $500.00. Provide a $500 processing fee payable to the Department of Environmental Protection. In your letter received May 6, 1997, requesting a De Minimis exemption you state you intend to collect four (4), five (5) gallon buckets of sand each of which contains fifty (50) pounds of sand per month. A letter you submitted to the Department from the Army Corps of Engineers (dated May 9, 1997) states you will collect four (4) or five (5), five (5) gallon buckets three (3) times per month. Please indicate the quantity of sand you propose[] to collect per month. Part II CONSENT OF USE (Chapters 18-18, 18-20 and 18-21, Florida Administrative Code) For your information If the project develops to the point where proposed dredging will be recommended for authorization, payment for the removal of sovereign submerged land will be required at $3.25 per cubic yard, or a minimum payment of $50.00 prior to issuance of the authorization. Do not provide payment until requested by Department staff. [See 18- 21.011(3)(a), F.A.C.] Petitioner timely responded to the Department's "revised request for additional information" by letter dated October 10, 1997, to which he attached the requested "processing fee." In his letter, Petitioner advised the Department that it was his "intent to collect approximately 600 (six hundred) pounds of material each month." Following its receipt of Petitioner's letter and accompanying "processing fee," the Department sent letters to potentially affected parties advising them of Petitioner's "proposed [sand collection] activit[ies]" and soliciting their comments concerning these activities. The Florida Department of Community Affairs responded to the Department's request by indicating, in written correspondence it sent to the Department, that it had "no objection to the proposed project." The National Oceanic and Atmospheric Administration (NOAA) also provided written comments to the Department. It did so by letter dated November 21, 1997, which read as follows: The following are comments from the Florida Keys National Marine Sanctuary (FKNMS) concerning the application from Jeff Frankel to collect live sand, File No 44-0128760-001. These comments reflect the consensus of both NOAA and FDEP Sanctuary staff. The harvest of live sand is viewed by the Sanctuary as dredging. This activity is considered neither fishing nor traditional fishing activity. Therefore, "harvesting of live sand" is within the prohibition against dredging, or otherwise altering the seabed of the Sanctuary and does not fall within the exception for "traditional fishing activities" as Mr. Frankel asserts. As such this activity should not be conducted in the Sanctuary without a Federal or State permit. The Sanctuary is opposed to permitting this activity in Federal or State waters for the following reasons: As stated above, it is a dredging activity which is prohibited.3 The Sanctuary exists because of the unique and nationally significant resources found here. These resources exist due to the dynamic ecosystem of which sand, and the meiofaunal communities found therein, is a major component. The Sanctuary is opposed to unnecessary alteration of the ecosystem particularly when viable alternatives exist such as harvesting outside the FKNMS in Gulf waters and aquaculture. Sixty-five percent of the Sanctuary seabottom is State sovereign lands. Removal of the quantities of substrate for commercial purposes does not appear to be in the public interest. Pursuant to the intragency compact agreement between the State of Florida and the National Oceanic and Atmospheric Administration dated May 19, 1997, NOAA will not permit a prohibited activity in federal waters in the Sanctuary that is not allowed in the State waters of the Sanctuary. We appreciate the opportunity to comment on this application. On January 8, 1998, the Department issued its Consolidated Notice of Denial [of] Environmental Resource Permit and Consent of Use to Use Sovereign Submerged Lands. In its Consolidated Notice, the Department gave the following reasons for its action: The Department hereby denies the permit for the following reason: The proposed project will directly impact water quality by removal of approximately 660 pounds of "live sand" from state-owned sovereign submerged land each month. The material collected consists of dead calcareous green algae (Halimeda spp.) and calcium carbonate grains. This substrate is important habitat for grazers and detritivores and it contains an extensive and diverse invertebrate community. . . . The project as proposed does not comply with the specific criteria within; Chapter 373, F.S., F.A.C. Rule 62-300, and Section 4.2 of the Basis of Review for Environmental Resource Permit Applications within the South Florida Water Management District. The above impacts are expected to adversely affect marine productivity, fisheries, wildlife habitat, and water quality. The applicant has not provided reasonable assurance that the immediate and long-term impacts of the project will not result in the violation of water quality standards pursuant to F.A.C. Rule 62-312.150(3) and 62-312.070. Specific State Water Quality Standards in F.A.C. Rules 62-302.500, 62-302.510, 62- 302.560 and 62-4.242 that will be affected by the completion of the project include the following: Biological Integrity- . . . . This project will also result in the following matter which are not clearly in the public interest pursuant to Section 373.414(1)(a), F.S.: adversely affect the conservation of fish and wildlife, including endangered species, or their habitats; diminish the current condition and relative value of functions being performed by areas affected by the proposed activity; adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity; the activity will be permanent in nature; adversely affect the functions and relative value of the habitat within the area of the proposed project. Therefore, the Applicant has not provided reasonable assurance that the project is clearly in the public interest pursuant to Section 373.414(1)(a), F.S. The request for authorization to use sovereign submerged lands is denied because the Applicant has not met all applicable requirements for proprietary authorizations to use sovereign submerged lands, pursuant to Article X, Section 11 of the Florida Constitution, Chapter 253 F,S., associated Chapter 18-21, F.A.C., and the policies of the Board of Trustees. Specifically, operation of the activity is inconsistent with management policies, standards and criteria of F.A.C. Rule 18- 21.00401(2) and 18-21.004. The Applicant has not provided reasonable assurance that the activity will be clearly "in the public interest," will maintain essentially natural conditions, will not cause adverse impacts to fish and wildlife resources or public recreation or navigation, and will not interfere with the riparian rights of adjacent property owners. In addition, the project is inconsistent with the goals and objectives of the "Conceptual State Lands Management Plan," adopted by the Board of Trustees on March 17, 1981. The . . . activity is inconsistent with Section 18-21.00401(2), F.A.C., the authorization to use sovereign submerged lands cannot be approved, in accordance with Sections 18-21.00401 and 62-343.075, F.A.C., because the activity does not meet the conditions for issuance of a standard general of individual permit under Part IV of Chapter 373, F.S., as described above. The Consolidated Notice accurately describes the adverse impacts of the "project" which is subject of the instant case (Project). Petitioner has not proposed any measures to mitigate these adverse impacts. If the Department authorizes the Project, it is reasonable to anticipate that other collectors of "live sand" would seek the Department's approval to engage in similar activity in the area. If these other projects were also approved, there would be additional adverse environmental consequences. As the Consolidated Notice alleges, Petitioner has failed to provide reasonable assurance that the Project would not degrade the ambient water quality of the OFW in which the Project would be undertaken, nor has he provided reasonable assurance that the Project is clearly in the public interest.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a final order denying Petitioners' application for an environmental resource permit and for a lease to use sovereign submerged lands. DONE AND ENTERED this 12th day of January, 1999, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of January, 1999.
The Issue The Appellants raise several issues on appeal, including: whether Ordinance 003-2015 did not comply with the constitutional single subject rule and did the County’s application of the Ordinance violate the Florida Constitution; whether the County exceeded its police power in enacting Ordinance 003-2015 and failed to follow the essential requirements of the law when it applied the ordinance to the Appellants’ property; (3) whether the Planning Commission’s decision violated its obligations to support, protect, and defend the Unites States and Florida Constitutions; and (4) whether the Appellants were deprived of their fundamental due process rights during the Commission hearing.
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 Appellant, Devoe L. Moore, has demonstrated, by a preponderance of the evidence, that development rights in certain real property he owns have vested against the provisions of the Tallahassee-Leon County 2010 Comprehensive Plan?
Findings Of Fact The Property at Issue. On September 18, 1987, Devoe Moore acquired a tract of approximately 28 acres of real estate (hereinafter referred to as the "Property"), located on Lake Bradford Road just south of Gaines Street, in the City of Tallahassee, Leon County, Florida. The Property was the former location of the Elberta Crate and Box Company. The Property was at the time of purchase, and still is, zoned M-2, Industrial. Development of the Property. Mr. Moore intended to develop the Property consistent with the Property's M-2, Industrial zoning. Mr. Moore intended to build a service/commercial/mini-storage development similar to another such development of Mr. Moore in the City. In December, 1987, Mr. Moore had his engineer prepare grading and drainage plans for the Property. On January 29, 1988, Mr. Moore had an application for an amendment to a stormwater permit, Environmental Management Permit 87-1087, filed with the Leon County Department of Public Works. At that time, Leon County issued such permits for property in unincorporated areas and inside the City's limits. The grading and drainage plans for the Property were filed with the application. Leon County had not been delegated any responsibility or authority to make land-use decisions for the City. The requested amendment to Permit 87-1087 was based on an assumption of Mr. Moore that the Property would consist of 80% coverage with impervious surface. Therefore, the City was aware or should have been aware that Mr. Moore intended to construct a major development on the Property. Such a development was consistent with the zoning on the Property at the time. Neither Leon County nor the City, however, approved or in anyway addressed the issue of whether 80% coverage of the Property with impervious surface was acceptable. Nor did the City or Leon County make any representation to Mr. Moore different from that made by the City's zoning of the Property. Mr. Moore filed a site plan showing a development of 80% coverage with the application for amendment to Permit 87-1087. These plans showed a development consisting of thirteen rectangular buildings, driveways and parking area. The indicated development, however, was not reviewed or in anyway approved by Leon County or the City. On May 6, 1988, a Stormwater Permit, amending Permit 87-1087, was issued to Mr. Moore. This permit only approved the construction of a holding pond and filling on the Property. The issuance of the permit did not constitute approval of any proposed development of the Property. In 1988, Mr. Moore began clearing the Property of buildings on the Property which the City had condemned. Mr. Moore also began filling and grading the Property in 1988, and has continued to do so to varying degrees through July 16, 1991. From January 1989, through August, 1990, SANDCO placed 1,174 loads of fill on the Property. Jimmy Crowder Construction Company has also performed filling and grading work on the Property since 1988. As of the date the City's vesting ordnance was adopted and as of the date of the hearing before the Division of Administrative Hearings Mr. Moore has not completed filling on the Property. Mr. Moore also has not completed filtration improvements to the storm water hold pond to be constructed on the Property. Additional water treatment facilities on the Property must be constructed to handle runoff from the Property. No roadways, water services, sewer services or electric services have been constructed on the Property. Site preparation on the Property has not been completed so that construction of vertical improvements can begin. At the time that Mr. Moore acquired the Property, only building permits were required for the development of the Property. The evidence failed to prove that Mr. Moore obtained the required building permits. The law was changed, however, to require approval of a site plan. Mr. Moore decided not to submit a site plan at least in part because of the City's work on the sewer main. The weight of the evidence, however, failed to prove that Mr. Moore was prohibited by the City from obtaining site plan approval. The City has not approved or reviewed a site plan for the Property. At the time Mr. Moore purchased the Property, and continuing to the present, a City sewer main which runs along the southern border of the Property has been a problem. The sewer main is a health hazard because it is located in proximity to the surface of the ground and it has numerous leaks. The City indicated that it intended to build a new sewer main across the Property and Mr. Moore agreed to give the City an easement for the sewer main. After Mr. Moore purchased the Property and before February, 1989, Mr. Moore made a number of requests to the City that the City identify the easement it desired and prepare the easement grant so that the City could construct the new sewer main and Mr. Moore could proceed with his development. Requests were also made by some City employees of the City Attorney that the easement be prepared and executed because of the problem with the existing sewer main. In April, 1989, the easement grant was prepared and executed. On August 3, 1990, James S. Caldwell, Assistant Director of the City Water and Sewer Department, wrote the following letter to Mr. Moore: It has been brought to my attention that your are proceeding with construction of a stormwater holding pond on the referenced site [the Elberta Crate Site]. As discussed with you this date and as you are aware, the City has a sewer line on this property. The sewer line would be damaged by your construction activity. The City has designed a relocation and upgrade of the sewer line to be constructed on an easement previously acquired from you. Our schedule for the sewer line construction is completion by January 1, 1991. A review of your stormwater holding pond drawings and the proposed sewer line reveals a potential conflict between the proposed line and the holding pond. We shall have City staff stake out and flag the existing sewer line and the proposed sewer line. We are requesting that your construction activity stay away from the existing sewer line. After stakeout of the proposed sewer line, you may check your stormwater pond plans to assure that there is no conflict. [Emphasis added]. Mr. Moore was also told on other occasions to avoid interfering with the existing sewer line and the construction of the new sewer line. Construction of the new sewer main on the Property was not commenced until January, 1991. The construction had not been completed as of March, 1991. Part of the delay in completing the sewer main was caused by contemplated changes in the location of the sewer main and the possible need for a different easement. The weight of the evidence failed to prove that Mr. Moore was told to cease all activity on the Property. Costs Incurred by Mr. Moore. Mr. Moore paid approximately $1,000,000.00 for the Property. The weight of the evidence failed to prove that this cost was incurred in reliance upon any representation from the City as to the use the Property could be put other than the existing zoning of the Property. Mr. Moore spent approximately $247,541.22, for demolition of existing buildings, site clearing and grading, engineering costs, fill, permitting fees and partial construction of the stormwater management system for the Property. Mr. Moore also donated an easement to the City with a value of approximately $26,000.00. The weight of the evidence failed to prove that these expenditures were made in reliance upon any representation by the City as to the use to which the Property could be put other than the existing zoning of the Property and the stormwater management permit. Mr. Moore also incurred approximately $100,000.00 in expenditures similar to those addressed in the previous finding of fact for which Mr. Moore was unable to find documentation. The weight of the evidence failed to prove that these expenditures were made in reliance upon any representation by the City as to the use to which the Property could be put other than the zoning of the Property and the stormwater management permit. Development of the Property Under the 2010 Comprehensive Plan. Mr. Moore's proposed development of the Property appears to meet the concurrency requirements of the Tallahassee-Leon County 2010 Comprehensive Plan. Mr. Moore's proposed development of the Property, however, appears to be inconsistent with the 2010 Plan because the Future Land Use Element district in which the Property is located does not permit industrial uses and the intended industrial use of the Property is incompatible with some of the uses to which adjacent property has been put. Procedure. Mr. Moore filed an Application for Vested Rights Determination prior to the filing of the application at issue in this proceeding. That application was denied by the City on October 16, 1991. In the first application Mr. Moore indicated that the Property was to be used for student housing. On or about November 13, 1991, Mr. Moore filed an Application for Vested Rights Determination (hereinafter referred to as the "Application") (Application VR0295T), with the City. "Devoe L. Moore" was listed as the owner/agent of the Property in the Application. It is indicated that the project at issue in the Application is "[i]ndustrial development of former Elberta Crate and Box Company site by Devoe L. Moore." "Progress . . . Toward Completion" is described as (1) Owner/contractor estimate; (2) Environmental Management Permit; (3) Site preparation from December, 1987, to the date the Application was filed; and (4) Construction of the stormwater system in 1990. In a letter dated February 6, 1991, Mr. Moore was informed that his Application was being denied. By letter dated February 18, 1991, Mr. Moore requested a hearing before a Staff Committee for review of the denial of his Application. On March 11, 1991, a hearing was held to consider the Application before the Staff Committee. The Staff Committee was comprised of Jim English, City Attorney, Mark Gumula, Director of the Tallahassee-Leon County Planning Department and Buddy Holshouser, Director for the City's Growth Management Department. At the conclusion of this hearing the Staff Committee voted 2 to 1 to deny the Application. By letter dated March 19, 1991, Mark Gumula, Director of Planning of the Tallahassee-Leon County Planning Department, informed Mr. Moore that the Application had been denied. By letter dated April 4, 1991, to Mr. Gumula, Mr. Moore appealed the decision to deny the Application. By letter dated July 3, 1991, the Division of Administrative Hearings was requested to provide a Hearing Officer to review this matter. By agreement of the parties, the undersigned allowed the parties to supplement the record in this matter on August 27, 1991. F. Other Projects Approved by the City. Mr. Moore submitted, without objection from the City, other vesting rights applications and final orders concerning such applications which were ultimately approved by the City. All of those cases are distinguishable from this matter. See the City's proposed finding of fact 30.
The Issue The issue addressed in this proceeding is whether Petitioner was the subject of an unlawful employment practice.
Findings Of Fact Baypoint Hotel Associates operates a hotel at Marriott's Bay Point Resort in Panama City, Florida. Petitioner, Jerry D. Hicks, was employed by Respondent, Baypoint Hotel Associates, for approximately five and one Petitioner worked as a bell captain at Respondent's Panama City Beach, Florida, hotel for approximately two and one termination of his employment with Respondent. The bell captain's job required some heavy lifting. There was no dispute regarding the fact that Respondent is an employer within the meaning of the Florida Human Rights Act, and that all jurisdictional requirements have been met. Petitioner requested, and was granted, a leave of absence from his job effective December 17, 1991, in order to have back surgery to repair a herniated disc. By electing to take a leave of absence, Petitioner understood that he was not guaranteed his bell captain's job upon his return. In fact, he was not guaranteed any job upon his return, but would be given preference should there be an opening in any employment position for which he was qualified. There was no evidence that Respondent's leave of absence policy was not consistently applied or applied in a discriminatory manner. As a result of his surgery, Petitioner was unable to work from December 17, 1991, until April 9, 1992, when he was released by his doctor to return to work. No medical evidence was presented that Petitioner's "back problem" constituted a handicap or was perceived as a handicap by his employer. During Petitioner's absence from work, his job duties were reassigned to two assistant bell captains. After being released by his doctor to return to work, Petitioner informed Respondent's Human Resources Department, on or about the week of April 13, 1992, that he was ready to return to work, but that he would temporarily not be able to perform all of the duties, namely heavy lifting, of his former job as bell captain because of his surgery. After Petitioner requested to return to his job as a bell captain, Respondent's Director of Human Resources informed Petitioner that his former job was no longer available because Respondent's management had reassigned the bell captain's duties to two assistant bell captains and that Respondent did not plan to refill the job of bell captain under a reorganization of that service area. In lieu of returning Petitioner to his former job as bell captain, Respondent's human resource director informed Petitioner that he could interview for several available jobs at Respondent's hotel, including the jobs of telephone operator/supervisor, front desk clerk or reservation sales agent. Petitioner testified that he was unwilling to consider any job that paid less money than he was paid in his former job as a bell captain. By the time Petitioner informed Respondent's human resource director on April 28, 1992, that he was ready to interview for the reservation job; however, the reservations job had already been filled. Petitioner had waited an inordinate amount of time in advising Respondent of his interest in the reservations job and therefore lost his opportunity to apply. There was no evidence of any discrimination on the part of Respondent.
Recommendation It is accordingly, RECOMMENDED: Based on the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that the Florida Commission on Human Relations issue a Final Order dismissing Petitioner's complaint. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 29th day of October, 1993. DIANE CLEAVINGER 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 29th day of October 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-1504 The facts contained in paragraphs 1, 2 and 3 of Respondent's Proposed Findings of Fact are adopted in substance, insofar as material. COPIES FURNISHED: Jerry D. Hicks 1202 Parker Drive Panama City, Florida 32401 Michael D. Giles, Esquire 1410 AmSouth Harbert Plaza 1901 Sixth Avenue North Birmingham, Alabama 35203-2602 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Road, Building F (Suite 240) Tallahassee, Florida 32399-1570 Ms. Sharon Moultry Clerk Florida Commission on Human Relations Building F Suite 240 325 John Knox Road Tallahassee Florida 32303-4149
