The Issue The issue in this proceeding is whether four agency memoranda describing policy on mitigation for dredge and fill projects are unpromulgated rules and were relied on by the agency in violation of Section 120.535(1), F.S. During the hearing, and afterwards in writing, Petitioner sought leave to amend its pleadings to incorporate other policies allegedly relied on by the agency in the process of the dredge and fill application review. That request was denied in an order entered on August 23, 1993. Those policies are addressed in the recommended order in DOAH #93-3367.
Findings Of Fact Petitioner, SIP Properties Limited Partnership (SIP) is the record owner of the parcel at issue, approximately thirty-five (35) acres located in the southwest area of Orlando, Orange County, Florida. SIP proposes to prepare the site for commercial and office use by developing the site into separate parcels or lots with proposed uses such as restaurant or fast food establishments, offices and retail stores. Development of the site requires the construction of compensating storage ponds that will act as retention/detention ponds and filling the site. The proposed improvements will result in the filling of 7.47 acres and dredging of 0.42 acres of wetlands claimed to be jurisdictional by DEP. Based on statements made to SIP by staff regarding department "mitigation policies" applicable to SIP's dredge and fill permit application, SIP believed that department policy memoranda were applied during permit review. SIP attached these various memoranda regarding mitigation to its Petition for Administrative Determination of Violation of Rulemaking Requirement dated May 27, 1993, and identified these memoranda as nonrule policies utilized by the department. The department retains on file and makes available for use by its staff the identified memoranda. However, in this case the department did not rely on or apply the mitigation guidelines contained in the memoranda in SIP's Petition. Instead, it applied Part III of Chapter 17-3120, F.A.C. In Part III of Chapter 17-312, F.A.C., the agency has adopted rules addressing the mitigation issues contained in the memoranda in SIP's Petition. For example, the agency has adopted guidelines in rule 17-312.340(2), F.A.C., for applying ratios when mitigation involves creation of state waters, as in this case. The department presently relies on these rules when reviewing mitigation plans, and does not rely on the policy memos referenced in the petition. Determining the mitigation needed to successfully offset impacts from a project is difficult and depends on many factors, including hydrology, soils, planting methods, and monitoring plans. Determining what is needed to reasonably assure successful mitigation must be done on a case by case basis. Not enough is known about the subject to apply any particular set of directions and expect success. DEP is presently in the process of developing rules to further address most aspects of mitigation.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of Environmental Protection issue its Final Order granting SIP's dredge and fill permit #48-2086169, with the mitigation proposed by the applicant, and establishing an expiration date and monitoring and evaluation plan for determining success of the mitigation as provided in rules 17-312.320 and 17-312.350, F.A.C. DONE AND RECOMMENDED this 11th day of January, 1994, in Tallahassee, Leon County, Florida. MARY CLARK 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 11th day of January, 1994. APPENDIX The following constitute specific rulings on the findings of fact proposed by the parties. Petitioner's Proposed Findings 1.-3. Adopted in paragraph 2. 4.-6. Adopted in paragraph 7. 7.-8. Rejected as unnecessary. 9. Adopted in paragraph 8. 10.-11. Adopted in substance in paragraph 9. 12. Adopted in substance in paragraph 10. 13.-16. Rejected as unnecessary Adopted in paragraphs 11 and 12. Rejected as unnecessary. 19.-21. Adopted in substance in paragraph 13. 22.-23. Adopted in substance in paragraph 14. 24.-25. Adopted in paragraph 15. Adopted in paragraph 16. Rejected as contrary to the weight of evidence. Adopted in paragraph 16. Substantially rejected as contrary to the greater weight of evidence. Adopted in part in paragraph 17, otherwise rejected as immaterial. Rejected as immaterial. Adopted in paragraph 18. Rejected as immaterial. The agency witnesses established that the vegetation along the canal evidences the physical connection and there is evidence that water flows from the site into the canal. Rejected as unsubstantiated by reliable competent evidence. Adopted in substance in paragraph 22. 36.-40. Rejected as unsupported by reliable competent evidence. Rejected as immaterial. Rejected as unsupported by the weight of evidence. Rejected as unnecessary, and as to characterization of merely "relic" wetlands, unsupported by the weight of evidence. Rejected (the conclusion of jurisdictional limit) as unsupported by the greater weight of evidence. 45.-53. Rejected as immaterial or unnecessary. 54.-56. Adopted in paragraphs 33 and 34. 57. Adopted, as to the limited function, in paragraphs 22 and 23. 58. Adopted in paragraph 26. 59.-60. Adopted in paragraph 23. 61. Rejected, as to the absolute conclusion of "no function", as contrary to the greater weight of evidence. 62. Adopted in paragraph 25. 63.-64. Adopted in paragraph 26. Rejected as unnecessary. Adopted in paragraph 30. Adopted in paragraph 34. Adopted in substance in paragraph 31. Adopted in substance in paragraphs 30 and 34. Adopted in paragraph 31. 71.-73. Adopted in paragraph 33. 74.-77. Rejected as unnecessary. 78.-79. Adopted in paragraph 31. 80.-81. Adopted in paragraph 35. Rejected as unnecessary. Adopted in paragraph 33. 84.-90. Rejected as unnecessary. Respondent's Proposed Findings Adopted in paragraph 15. 2.-3. Adopted in paragraph 16. 4.-5. Adopted in paragraph 17. Adopted in paragraph 15. Adopted in paragraph 17. Adopted in paragraph 16. Rejected as unnecessary and as to "binding" effect, unsupported by the weight of evidence. Adopted in paragraph 19. 11.-15. Adopted in substance in paragraph 21. 16. Rejected as contrary to the weight of evidence and inconsistent with proposed findings #18 with regard to the constant level in the canal. 17.-18. Adopted in substance in paragraphs 21 and 23. 19.-21. Adopted in paragraphs 19 and 20. 22.-26. Adopted in summary in paragraph 21. Adopted in paragraph 27. Adopted in substance in paragraphs 1 and 2. Adopted in paragraph 2. Adopted in part in paragraph 16. That the forests are "healthy and viable" is rejected as unsupported by the weight of evidence. Adopted in substance in paragraph 17. Adopted in part in paragraph 25; otherwise rejected as contrary to the weight of evidence. 33.-34. Adopted in part in paragraph 27; otherwise rejected as contrary to the weight of evidence. 35.-37. Rejected as contrary to the weight of evidence. 38.-43. Rejected as unnecessary. 44. Rejected as contrary to the weight of evidence. The stormwater management plan and mitigation will restore the stormwater treatment functions. 45.-47. Adopted in substance in paragraph 30. Rejected as substantially contrary to the greater weight of evidence (as to the negative impact). Adopted in part, as to water quality problems generally, but rejected as to the ultimate conclusion, as contrary to the greater weight of evidence. Rejected as unnecessary. 51.-52. Adopted in summary in paragraph 31. 53.-54. Rejected as cumulative and unnecessary. 55. Rejected as contrary to the greater weight of evidence. COPIES FURNISHED: Virginia B. Wetherell, Secretary Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Kenneth Plante, General Counsel Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Ronald M. Schirtzer, Esquire Martha H. Formella, Esquire R. Duke Woodson, Esquire FOLEY & LARDNER 111 North Orange Avenue, Suite 1800 Orlando, Florida 32801 Douglas H. MacLaughlin, Esquire John L. Chaves, Esquire Rosanne G. Capeless, Certified Legal Intern Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue Whether Petitioners have standing to initiate formal proceedings under the City of Tallahassee Code of Ordinances. Whether the Planning Commission has jurisdiction to consider a challenge to the City's vested rights determination. Whether the Respondents Barnette W. Allen and Sally P. Allen's (Allens) proposed development, known as the Allenwoods Apartments project, is exempt from the consistency and concurrency requirements of the City of Tallahassee's (City) Comprehensive Plan.
Findings Of Fact Parties Petitioner Downtown Park Avenue Neighborhood Association (Neighborhood Association), Inc., is not-for-profit corporation organized on August 18, 1997, and existing under the laws of the State of Florida. The Neighborhood Association's principal office is located at 858 East Call Street, Tallahassee, Florida. The purpose of the Neighborhood Association is to preserve the residential nature and stability of the members' neighborhood. The members of the Neighborhood Association reside in close proximity to the property upon which the Allenwoods Apartments project is proposed to be constructed. Some members of the Neighborhood Association own property within 500 feet or less of the subject property. Petitioner Dana Plummer resides at 133-9 Oak Street, Tallahassee, Florida, which is in close proximity to the property upon which the Allenwoods Apartments project is proposed to be constructed. Mr. Plummer owns property less than 300 feet from the subject property. Plummer is the President of the Neighborhood Association. Respondent City of Tallahassee is a municipal corporation of the State of Florida. The City's DRC approved a Type B Site Plan application for the Allenwoods Apartments project. Respondents Allens are the owners of the property on which the proposed Allenwoods Apartments are to be located, and which property is designated as Blocks D and F in the Magnolia Heights Addition of the Hays Division. Allenwoods Apartments The Allenwoods Apartments is proposed to be constructed in approximately 8.64 acres, and is located on the north side of Call Street. The Allenwoods Apartments is proposed to consist of 88 apartment units. The apartments will be located within three three-story buildings and one two-story building, with a total of 202 parking spaces. The density of the proposed Allenwoods Apartments project is approximately ten units per acre. On October 24, 1996, the Planning Department issued Land Use Compliance Certificate No. CC960429 which stated that: This site is eligible for development of 110 multi-family dwelling units developed at the RM-1 standards in Hays Subdivision, an exempt subdivision. Type B review required in proximity with existing low density residential uses. Notice of the Planning Department's decision to issue Land Use Compliance Certificate No. CC960429 was not provided to any members of the Neighborhood Association nor to Plummer. In May 1997, the Allens submitted a Type B Site Plan application for the Allenwoods Apartments project. In mid-June 1997, during the City's review of the proposed project, the City determined that the Allens' two lots qualified as lots located within a subdivision recorded as of July 16, 1990, and all infrastructure required for the development of the property was completed prior to that date. Accordingly, the City staff determined that, pursuant to Section 18-103(1)(a)(1) of the City's Vested Rights Review Ordinance, the proposed Allenwoods Apartments project did not have to comply with the concurrency and consistency requirements of the City's 2010 Comprehensive Plan. Consequently, the City staff did not review the Allenwoods Apartments project for consistency with the City's 2010 Comprehensive Plan, nor did the City review the project for concurrency. On August 11, 1997, the City's Development Review Committee approved the Type B Site Plan application for the Allenwoods Apartments project. Single-family residences are the primary use of the properties immediately adjacent to the Allens property. All existing multi-family units that have been constructed in the neighborhood were constructed prior to the adoption of the City's 2010 Comprehensive Plan. History of the Subject Property On May 1, 1910, J. L. Hays recorded a subdivision known as the Magnolia Heights Addition of the Hays Division. The plat for the Magnolia Heights Addition of the Hays Division is recorded at Deed Book "KK," page 600, of the Public Records of Leon County. The plat depicted a street running between Blocks F and G. The plat also depicted a street between Blocks D and F. These streets were never constructed. On January 15, 1946, H. H. Wells acquired certain Blocks of the Magnolia Heights Addition of the Hays Division, including all of Blocks D and F, and a portion of Block E. On March 11, 1946, H. H. Wells and Susye Bell Wells replated all of Block C and a portion of B, D, E, F, and G. The new subdivision was named "Magnolia Manor," and is recorded at Plat Book 3, page 6, of the Public records of Leon County. On January 6, 1948, H. H. Wells and Susye Bell Wells sold all of Blocks F and G, and Lots 9, 10, and 11 in Block D, of the Magnolia Heights Addition of the Hays Division to the Glover Construction Company. On July 22, 1948, the Glover Construction sold its portion of Blocks D and F of the Magnolia Heights Addition of the Hays Division to Willie Mae Hampton. On November 1, 1963, Glover Construction Company sold a portion of Blocks D and F of the Magnolia Heights Addition of the Hays Division to Harlem J. Allen, Clyde P. Allen, Barnette W. Allen, and Sally Procter Allen. On February 13, 1964, Willie Mae Hampton sold her portion of Blocks D and F of the Magnolia Heights Addition of the Hays Division to Canal Timber Corporation. On December 2, 1964, Barnette W. Allen and Sally Procter Allen entered into an agreement to purchase that portion of Blocks D and F of the Magnolia Heights Addition of the Hays Division owned by the Canal Timber Corporation. On November 20, 1972, Canal Timber Corporation sold its portion of Blocks D and F of the Magnolia Heights Addition of the Hays Division to Grace H. Gibson. On December 26, 1974, Grace H. Gibson transferred her portion of Blocks D and F of the Magnolia Heights Addition of the Hays Division to Barnette W. Allen and Sally Procter Allen. On December 15, 1976, Barnette W. Allen and Sally Procter Allen acquired whatever property interests that Harlem J. Allen and Clyde P. Allen possessed by virtue of the acquisition that occurred on November 1, 1963. The City's Vested Rights Review Ordinance The City adopted its 2010 Comprehensive Plan on July 16, 1990. Concurrently with the adoption of its 2010 Comprehensive Plan, the City adopted its Vested Rights Review Ordinance, Ordinance No. 90-O-0043AA. This ordinance was codified as Article VII of Chapter 18 of the Code of Ordinances. Article VII (Sections 18-101 through 18-106) of the Tallahassee Code of Ordinances establishes the standards by which a property owner may demonstrate that private property rights have vested against the provisions of the 2010 Comprehensive Plan. Section 18-101 of the Code is a statement of intent in regard to the Vested Rights Ordinance, which reads: This article establishes the sole administrative procedures and standards by which a property owner may demonstrate that private property rights have vested against the provisions of the 2010 Comprehensive Plan. Said administrative procedures shall provide determinations of consistency of development with the densities and intensities set forth in the 2010 Comprehensive Plan and that development is not subject to the concurrency requirements of the 2010 Comprehensive Plan. The City established three categories for which property owners could apply to establish their vested rights to continue development of their property without complying with the consistency and concurrency requirements of the 2010 Comprehensive Plan. These categories are contained in Sections 18-104(1) and (2), Code of Ordinances. The three categories were denominated as "common-law vesting," "statutory vesting," and developments of regional impact, which were approved pursuant to Chapter 380, Florida Statutes. Pursuant to Section 18-103(2), property owners who contended that they had vested rights pursuant to one of these three categories were required to request a determination of vested rights by filing an application with the Planning Department within 120 calendar days of July 16, 1990. The failure to timely file an application for a vested rights determination within the prescribed time limits constituted a waiver of any vested rights claims. The city's Vested Rights Review Ordinance also expressly states that a property owner cannot receive vested rights based upon a zoning classification. In addition to the three categories for which property owners could apply to establish vested property rights, the City's Vested Rights Review Ordinance included a provision by which certain property owners were presumptively vested and, therefore, were not required to file an application for a vested rights determination. Section 18-103(1) reads, as follows: The following categories shall be presumptively vested for the purposes of consistency with the 2010 Comprehensive Plan and concurrency as specified in the 2010 Comprehensive Plan and shall not be required to file an application to preserve their vested rights status: All lots within a subdivision recorded as of July 16, 1990, or lots in approved subdivisions for which streets, stormwater management facilities, utilities, and other infrastructure required for the development have been completed as of July 16, 1990. The Tallahassee-Leon County Planning Department shall maintain a listing of such exempt subdivisions. All active and valid building permits issued prior to July 17, 1990. All technically complete building permit applications received by the building inspection department on or before July 2, 1990, and subsequently issued, shall be vested under the provisions of the 2010 Comprehensive Plan, regardless of date of issuance. Any structure on which construction has been completed and a certificate of occupancy issued if a certificate of occupancy was required at time of permitting. All lots of record as of July 1, 1984, not located within a subdivision, but only to the extent of one (1) single-family residence per lot. If a property qualifies as an exempt or vested property pursuant to the City's Vested Rights Review Ordinance, the property owner does not have to comply with the consistency and concurrency provisions of the City's 2010 Comprehensive Plan. Such properties are allowed to be developed pursuant to the 1971 zoning code that was in effect until the City's 2010 Comprehensive Plan was adopted. The City staff and DRC determined that the subject property was vested because it fulfilled the requirements of Section 18-103(1)(a)(1) as a lot "within a subdivision recorded as of July 16, 1990." The basis for this determination was that the property was located within the plat for the Magnolia Heights Addition of the Hays Division which was recorded in 1910. The plat does not contain any statements as to use or density, however. The subdivision, known as Magnolia Manor, plated in 1946, has its own separate subdivision number, and consists of a portion of property that was originally part of the Magnolia Heights Addition to the Hays Division. A small portion of the Allens' property is located within the Magnolia Manor subdivision. Although from 1948 to 1974, Blocks D and F were both divided and transferred in a manner differently than that depicted on the 1910 Plat, all conveyances of the property subject to the Site Plan have been by reference to the lot and block of Magnolia Heights Addition. Subsequent purchasers of the property conveyed the lots subject to the Site Plan to the Allens, and described the lots as part of the original subdivision rather than by any reference to "Magnolia Manor." The replatting of certain lots within the subdivision to create "Magnolia Manor" did not affect or otherwise change any of the property subject to the Site Plan. On August 20, 1990, the City determined that the Magnolia Heights Addition was an exempt subdivision pursuant to the provisions of Section 18-103(1)(a)(1) of City Code of Ordinances, and was placed on the Planning Department list of exempt subdivisions. As such, the subdivision was exempt from the consistency and concurrency requirements of the Comprehensive Plan. The subdivision is one of more than 300-350 subdivisions determined to be exempt as recorded subdivisions. The exemption was based upon the fact the project was located in a subdivision recorded as of July 16, 1990, and all infrastructure required for the subdivision and for development of the property was in place and complete as of that date. The City staff has been guided in its interpretation and application of the City's Vested Rights Review Ordinance by a memorandum dated August 27, 1990, written by then Assistant City Attorney John Systma. The August 27 memorandum states, in pertinent part, that: This memo is in response to your questions about the proper procedure to follow in determining if a subdivision recorded in 1906 should be declared exempt under the provisions of the Vested Rights Review Ordinance. The critical element that must exist for the subdivision to be exempt is that the current subdivision must be identical to the plat that was created when the subdivision was initially recorded. Any resubdivision, replatting or other changes made to the original recorded plat invalidates that plat. An excellent example of an invalid plat is the original plat recorded for the Pecan Endowment, which has subsequently been changed many times, thereby invalidating it. The subdivision was recorded as of July 16, 1990. The resubdivision of a part of an exempt recorded subdivision, which does not affect the property under review and subject to development approval, has never been the basis of denial of the recorded subdivision exemption provisions of the Vested Rights Ordinance. City staff have never denied the exemption or vesting based upon a replatting of other lots in a subdivision which were not included in the proposed exempt development. Respondents clearly established that such replatting has not been a basis for denial of the exemption by City staff in applying the Vested Rights Ordinance since its adoption in 1990. The development approvals for the Allenwoods Apartments are valid if it is determined that the project is exempt or vested under the Vested Rights Ordinance. The property, at the time of adoption of the 2010 Comprehensive Plan, was zoned RM-1, and allowed development of a multifamily project at the density approved for the Allens. The current zoning of the property is MR1 and would permit the development of the property as a multifamily project at the density approved for the Allens.
Recommendation Based on the foregoing findings of fact and conclusions of RECOMMENDED that the Planning Commission find that Respondents Allens' lots are vested for the purposes of consistency and concurrency with the 2010 Comprehensive Plan, and, it is further RECOMMENDED that the Planning Commission approve the Site Plan for the Allenwoods Apartment Project, as consistent with the requirements of Chapter 27, Article XXI, Section 21.4.G.8. of the Code of Ordinances. DONE AND ENTERED this 15th day of May, 1998, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 Filed with the Clerk of the Division of Administrative Hearings this 15th day of May, 1998. COPIES FURNISHED: Charles A. Francis, Esquire Francis & Sweet, P.A. Post Office Box 10551 Tallahassee, Florida 32302 David A. Theriaque, Esquire 909 East Park Avenue Tallahassee, Florida 32301 Linda R. Hurst Assistant City Attorney City Hall 300 South Adams Street Second Floor Tallahassee, Florida 32301 Mark Gumula Director of Planning Tallahassee-Leon County Planning Department 300 South Adams Street Tallahassee, Florida 32301 Jean Gregory Clerk of the Planning Commission Tallahassee-Leon County Planning Department 300 South Adams Street, City Hall Tallahassee, Florida 32301 Robert B. Inzer City Treasurer-Clerk 300 South Adams Street, City Hall Tallahassee, Florida 32301
Findings Of Fact The Subject Property. The property at issue in this proceeding consists of approximately 205 acres of land located in Clay County, Florida. The subject property is known as "Station Pond (Oak Forest Extension)." Station Pond was subdivided into 40 lots by an unrecorded subdivision plat. The lots range in size from approximately three to fifteen or twenty acres. Roads, which are unpaved, surrounding Station Pond, and drainage for Station Pond, are privately owned. The roads and drainage were completed prior to December of 1978. A boundary survey of Station Pond was prepared and contains a surveyor's certification of January 8, 1980. Pre-1985 Subdivision Regulations of Clay County. Prior to September of 1985 Clay County did not require platting of subdivisions such as Station Pond. In September of 1985, Clay County adopted Ordinance 85-68 creating three types of subdivisions and providing for the regulation thereof. An exception to these requirements, however, was included in Ordinance 85-68: subdivisions shown on a certified survey prior to September of 1985 with lots and roads laid out would continue to not be subject to regulation so long as the lots continue to comport with the survey. Government Action Relied Upon Before the Applicant's Sale of the Property. The Applicant was aware that it could develop Station Pond as an unrecorded subdivision in Clay County. The development of Station Pond comes within the exception to Ordinance 85-58. In a letter dated December 15, 1978 the Clay County Director of Planning and Zoning informed the Applicant that Oak Forest Clay County would "issue building permits in accordance with the uses permitted and lot/building requirements for an Agricultural zoned district, and in accordance with all other local ordinance provisions, state statutes, etc., as enclosed." This representation was based upon the conclusion of Clay County that Oak Forest was not subject to Clay County subdivision ordinances. Similar conclusions were reached by the Clay County Health Department in a letter dated September 8, 1978, and by the Clay County Public Works Director in a letter dated December 18, 1978. The Applicant's Detrimental Reliance. The Applicant's predecessor corporation provided dirt roads around part of Station Pond. The roads were constructed prior to December of 1978. The costs of the roads incurred by the Applicant was approximately $15,000.00. Rights That Will Be Destroyed. If the Applicant must comply with the Clay County comprehensive plan it will be required to pave the roads of the subdivision and provide an approximately 3 mile long paved access road. 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 The issues in this case are: Whether Petitioner, Warren M. Briggs ("Briggs"), should be issued a Wetland Resource Permit (WRP) for the construction of a single-family dwelling on a lot with jurisdictional wetlands in Santa Rosa County, Florida, as proposed in his application submission of 1998; and Whether the Department would permit the construction of a single-family dwelling on the subject lot under conditions and circumstances other than those set forth in Briggs' application.
Findings Of Fact Briggs is the owner of Lot 67, Block H, Paradise Bay Subdivision, located in southern Santa Rosa County ("Briggs lot"). Paradise Bay Subdivision was developed in approximately 1980, prior to the passage in 1984 of the Warren Henderson Wetland Protection Act. (Official Recognition of Section 403.918, Florida Statutes). The subdivision consists of modestly priced single- family homes that are attractive to young families because of the quality of nearby schools. The typical non-waterfront home in the subdivision is single story, approximately 2,000 square feet in area, and built on a concrete slab. The typical setback from the road to the front edge of a home is 75 feet. This fairly consistent setback from the road prevents the view from one home into the adjacent property owner’s back yard and, thereby, adversely affecting the neighbor’s property value. The undeveloped Briggs lot was purchased in 1981 for approximately $15,000 and remains undeveloped. Briggs bought the lot, along with three other lots in the subdivision, as investment property. The other three lots have been sold. One of the lots sold earlier by Briggs was a waterfront lot on East Bay located in jurisdictional wetlands. The entire lot was filled pursuant to a permit issued by the Department. The Briggs lot is 90 feet wide by 200 feet deep. It is located on the south side of Paradise Bay Drive. The lots on the north side of Paradise Bay Drive are waterfront lots on East Bay. To the rear (south) of the Briggs lot and other lots on the south side of Paradise Bay Drive, is a large swamp that eventually discharges into East Bay. The major connection between the Briggs lot and East Bay is through a culvert under Paradise Bay Drive. The Briggs’ lot consists of 2,914 square feet of uplands and 15,086 square feet of state jurisdictional wetland, with all of the uplands located in the northern half of the lot. Converted to acres, the Briggs lot consists of 0.067 acres of uplands and 0.347 acres of state jurisdictional wetland. Lot 66, immediately east of the Briggs lot, has been cleared and is about half tietie swamp with the remainder consisting of uplands and disturbed wetlands. Some fill has been placed on the lot. Lot 68, immediately west of the Briggs lot, is undeveloped and consists of all tietie wetlands. Lots 69, 70 and 71 of Block H of the subdivision are undeveloped and consist primarily of wetlands. The Department issued a permit on October 31, 1996, that allowed the owners of Lot 71 to fill 0.22 acres (9,570 square feet) of wetlands. The fill is allowed to a lot depth of 145 feet on the west side, and to a width of 73 feet of the total lot width of 90 feet. The fill area is bordered on the east and west by wetland areas not to be filled. The Department issued a permit on November 13, 1997, that allowed the owner of Lot 61 to fill 0.26 acres (11,310 square feet) of wetlands. Fill is allowed over the entire northern 125 feet of the 185 foot-deep lot. On April 28, 1998, Briggs applied to the Department for a permit to fill Lot 67. The Department, in its letter of August 7, 1998, and its permit denial of September 2, 1998, erroneously described the project as consisting of 0.47 acres of fill. The entire lot consists of only 0.41 acres, of which 0.067 acres is uplands, leaving a maximum area of fill of 0.343 acres. If Briggs’ residential lot is to be used, some impact to the wetlands on the lot is unavoidable. Alternatives discussed by Briggs and the Department, three of which are still available for Briggs to accept, included the following: One hundred feet of fill with a bulkhead separating the fill from the wetland area, with no off-site mitigation; Fill pad could be placed on property with the remainder of the wetlands on the site to remain in their natural state with no backyard, with no off-site mitigation required; One hundred feet of fill with a bulkhead separating the fill material from the wetland, with a small back yard, with no off-site mitigation required. Briggs did not accept any of the foregoing alternatives or proposed acceptable mitigation measures.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying the permit application, provided that the parties may reach subsequent agreement regarding proper mitigation in order to make the construction of a single-family dwelling possible on the Petitioner’s property in this case. DONE AND ENTERED this 19th day of November, 2001, in Tallahassee, Leon County, Florida. _ DON W. DAVIS 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 19th day of November, 2001. COPIES FURNISHED: Charles T. Collette, Esquire Lucinda R. Roberts, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard The Douglas Building, Mail Station 35 Tallahassee, Florida 32399-3000 Jesse W. Rigby, Esquire Clark, Partington, Hart, Larry Bond and Stackhouse 125 West Romana Street, Suite 800 Post Office Box 13010 Pensacola, Florida 32591-3010 Kathy C. Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard The Douglas Building, Mail Station 35 Tallahassee, Florida 32399-3000 Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard The Douglas Building, Mail Station 35 Tallahassee, Florida 32399-3000
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.
Findings Of Fact By application (Exhibit 1) dated September 15, 1978, WCMI requested a permit to dredge approximately 740 cubic yards of sovereign bottom lands in Snook Bay adjacent to upland property owned by applicant. At the same time applicant requested a lease of some 0.98 acres of submerged sovereign land, containing the area to be dredged, for the purpose of constructing a marina with docking facilities over the leased property. Following receipt of all requested information from applicant, plus objections from adjacent land owners, DNR, as the state agency acting on behalf of the Trustees Internal Improvement Trust Fund (TIITF), held a public hearing in Naples, Florida on April 25, 1979. The Hearing Officer submitted a report following this hearing in which he recommended the lease be granted (Exhibit 4). After review DNR staff recommended granting the lease and before the Trustees took action, Petitioner requested this hearing. In the interim DER reviewed the application for a dredge and fill permit and, following a preliminary investigation, advised WCMI of its intent to deny the permit (Exhibit 8). At informal conferences with DER, WCMI revised its application to commence the dredging 25 feet from the existing seawall, reduce the amount of material to be dredged to 349 cubic yards and to move the floating dock sections further from the seawall. This revised application (Exhibit 10) was submitted to DER and, after review, DER on November 13, 1979 (Exhibit 11) issued its notice of intent to grant the requested permit. Petitioner then requested this hearing to contest the granting of this permit. The Isles of Capri was developed into a waterfront homesite project by bulkheading, dredging and filling a pristine mangrove area to provide the homesites now occupied by members of Petitioner. This project destroyed the ecosystem as it existed before the development. The area which is here proposed for lease and for a permit to dredge some 349 cubic yards therefrom is located in the originally disturbed area. Most of the homes on the Isles of Capri are built on waterfront lots and most homeowners have docks and boats. Fishing is generally considered good off the docks and in surrounding waters. The proposed marina is located in Snook Bay, a relatively small cul-de-sac-like area. On the dead end of Snook Bay, which is adjacent to the proposed marina, mangroves have been planted and the area designated as a park. Since these mangroves are rat infested, the park concept has not received general acceptance. However, the proposed marina will not adversely affect this park. Apart from the ecological problems that will allegedly be created by the leasing of the property and the dredging thereon, Petitioner alleges the project will interfere with other "rights" of the homeowners of the Isles of Capri. Although this Hearing Officer has considerable doubts as to the validity of these alleged rights, the facts presented relating thereto will be first considered. WCMI owns the uplands adjacent to this submerged land and this land is zoned General Retail Commercial, which includes use as a proposed marina. Use as a marina would create less additional vehicular traffic than would any of the other 12 uses considered most likely for this land. (Testimony of Barr) The proposed marina will provide wet dock space for 32 boats and dry storage for 116 boats in sheds with the boats stacked three-high. No ramps will be provided and boats will be launched and picked up by use of a forklift at the concrete seawall. Parking space for 54 vehicles will be provided. This parking space complies with local requirements, as does WCMI's proposed construction. Collier County and the area of Collier County in the vicinity of Isles of Capri is an area of rapidly increasing population. A need for some six additional marinas has been recognized by Collier County authorities. Numerous witnesses opposed the use of WCMI property as a marina because: They do not think the site is suitable for a marina, and a much smaller marina would be preferred. Installation of a marina would increase boat traffic, thereby increasing the risk of boat collisions, increase wake action which might damage seawalls, disrupt the peace and quiet now enjoyed by these residents, and increase the possibility of boats striking manatees. Property values in the vicinity of the proposed marina and elsewhere in the Isles of Capri might decline. Operation of a marina would increase the noise level, thereby disturbing occupants of residences closest to the proposed marina. Vehicular traffic would be greatly increased on the Isles of Capri once the marina commences operation. Most of these objections are beyond the jurisdiction of this tribunal. This property has been zoned for the use proposed and if this use is inappropriate, the proper recourse is with the local zoning authorities. The credible evidence submitted is that the operation of the marina would increase boat traffic in and out of Snook Bay some 20 round-trips per day and this increase will create and insignificant additional risk of collision with other boats or with the occasional manatee that is sighted. While most of this traffic will use the deeper channel that follows the seawalls and boat docks of residents, an alternate channel is available for use by boaters with local knowledge of its characteristics. Even if all traffic used the deeper channel, no serious hazard to navigation would thereby result. No credible evidence was presented that the increased boat traffic caused by the marina would increase the damage to a properly constructed seawall. Navigation of these waters is a right to be jealously guarded. If wave damage results, local authorities have jurisdiction to establish speed or wake restrictions. Furthermore, the more credible evidence presented was that at the Isles of Capri more subsidence of soil behind the seawalls is caused by tidal action than by wake action. No credible evidence was presented that the operation of the proposed marina would decrease property values. Even if this could be shown, such a use would be consistent with the usage for which this property is zoned. There are two marinas across the street from WCMI's proposed marina and no evidence was presented that the operation of these smaller marinas affected property values. The uncontradicted evidence that was submitted was that property values on the Isles of Capri have increased at a rate as great as, if not greater than, land values elsewhere in Collier County. The roads on Isles of Capri are presently operating far below capacity and the additional traffic expected to be generated by the proposed marina will have no significant impact on these roads, nor will the construction of the marina create any vehicular safety problems. Petitioner's contention that the construction and operation of the marina will create additional pollution because of septic tank, oils and greases, and water runoff from impervious surfaces is not well-placed. It is not well-placed in the first instance because this is not the proper forum in which to air these complaints. Local health and safety ordinances regulate the installation of septic tanks, installation of fueling facilities and retention of water falling on the property. Secondly, the evidence presented here is that WCMI will comply with all regulations regarding septic tanks, no live-aboard boats will be moored at the marina other than temporarily for fuel or supplies, fuel tanks will be underground on the upland area, provided with proper protection and insulation, and the fuel will be dispensed by hose from the fueling dock by experienced personnel. WCMI will provide containment booms and retrieving material to take care of the accidental spill that might occur. Collier County Ordinance requires the first 1-inch of rainfall be retained on the property and WCMI will comply with this requirement. From the testimony of the numerous residents who testified, the primary concern of most of those who object to the proposed installation is that "their" waters will become more available to people living elsewhere and this will somehow detract from the use and enjoyment of these waters by these residents. If access to the Isles of Capri is facilitated for people living elsewhere by the installation of this marina, these waters will become more crowded, resulting in less fish per resident, and this aquatic preserve will become less private and more available to the general public. These residents purchased their homesites because of the waterfront characteristics and the quietness and solitude of the area. Facilitating access by non-residents will necessitate sharing these waters with these non-residents, thereby detracting from the enjoyment residents hoped to retain undiminished forever. The allegations of Petitioner that merit the most serious consideration in both of these applications of WCMI involves those relating to the ecosystem. Petitioner contends that the proposed dredging will adversely affect the ecosystem and this requires denial of the dredge-and-fill permit. Without the permit the lease would be useless. Petitioner also contends the granting of the lease would be contrary to the public interest. WCMI's original application was to dredge from the seawall seaward some 60 feet until the desired depth contour was reached. Also, floating concrete docks would be adjacent to the seawall for berthing sites. When an inspection of the area disclosed the bottom grasses were heaviest from the seawall out to about 30 feet, the applicant was issued the Notice of Intent to Deny by DER because of these bottom grasses and the shading that would be caused by the floating docks. WCMI then proposed to do no dredging for the first 25 feet from the seawall, except for two areas 30 feet and 36 feet wide needed to launch boats, and also to move the floating docks 25 feet from the seawall so as not to shade the grassy areas. As noted above, the site under consideration was severely disturbed by the initial dredging which destroyed the original grassbeds at this site. Some of these grasses have now returned but the coverage is sparse and patchy. From the seawall out to about 30 feet the grass is Cuban shoalweed and manatee grass. Respondent's investigations and studies revealed only these two grasses. Petitioner's biologist who performed studies similar to those done by Respondent found halophila in the deeper waters (up to five feet) extending out as far as 60 feet from the seawall. Halophila is a more ephemeral grass that grows in deeper depths than Cuban shoalweed and manatee grass and is often found in previously dredged areas. The area proposed for dredging comprises some 1200 square meters, and seagrasses cover about one-fourth of the dredge area. Sample cores taken by Petitioner's expert in October while the more luxuriant summer growth predominated showed some 1600 blades of grass per square meter, while the winter sample taken by WCMI expert showed 467 blades per meter. In the 320 square meters of seagrasses in the area a total biomass of invertebrates was found to be 17 pounds. Using generally accepted conversion rates and invertebrate reproduction cycles to convert this biomass to fish, this weight of invertebrate biomass could be converted into between 2 and 10 pounds of fish annually. Removal of the seagrasses will remove feeding grounds and hiding areas for some types of aquatic animals and also take away the type of fish that inhabit such areas. On the other hand, the piling and other docking structures that will be installed will attract sessile organisms such as oysters, barnacles, etc. which currently attach themselves to rocks and mangrove roots in the vicinity. The biomass or weight of these organisms is likely to equal or exceed those to be lost by dredging away the seagrasses. While different types of fish will be attracted to the area where the shellfish and other attaching animals congregate than will be attracted to grassy bottoms, the change is not significant from a quality or quantity of fish point of view. The area to be dredged is an area that has partially recovered from its earlier destruction and there is no reason to believe a similar recovery will not recur after the dredging here proposed is completed. No evidence was presented that a collision between a boat and a manatee has ever occurred in the waters in the vicinity of the Isles of Capri. Any conclusion that such an incident is likely to occur because of increased boat traffic when the proposed marina is in operation would be sheer speculation. Furthermore, Collier County does not contain any of those designated waters wherein special manatee protection rules are to be set up. Nor is Snook Bay one of those areas where a concentration of manatees is likely to occur.
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 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.
