Findings Of Fact The Applicants acquired in 1960 for approximately $40,000 a 38 acre parcel of real property located adjacent to Governors Creek just outside the corporate limits of the City of Green Cove Springs in Clay County, Florida. The applicants created an unrecorded subdivision by subdividing the parcel into lots approximately one-half acre in size in accordance with a map dated July 19, 1961 which shows 50 numbered lots, access roads to these lots, and three parcels designated as not being included in the subdivision. The map of the subdivision was never recorded in the office of the Clerk of the Court of Clay County, but the tract has been referred to variously as the Bradley-Triplett Subdivision and Governor's Creek Subdivision. The Applicants began to develop the tract in 1961 for the purpose of selling the lots therein as single family home sites. Their activities included clearing and grading all the roads shown on the map and installing storm drainage structures. Shortly after the initial work was done, the Applicants approached the County Supervisor of Roads, James Knowles, and the County undertook maintenance of the roads. At the time development began, Clay County had no subdivision regulations, and there was no requirement to record the plat of the subdivision. A map of the subdivision was given to the County at the time it began to maintain the roads in 1961. Sales of lots in the subdivision began in 1961, and several lots were sold in the subdivision over the next few years. However, sales efforts were discontinued in 1965 because of the poor market. At the request of the Applicants, the County ceased to maintain a portion of the roads in 1975 in an effort to prevent dumping of garbage in the area. Initially, the subdivision was zoned agricultural. In June 1976, Mr. Bradley appeared before the Clay County Zoning Commission and requested the zoning of 30 acres of the tract be changed from BB to RB which permitted one single family dwelling per one-half acre. This request was granted. In June 1976, Mr. Bradley wrote Mr. John Bowles, Public Works Director of Clay County, requesting permission to install water lines within the graded road rights-of-way as shown on a map submitted by the Applicants which depicted all the lots which are the subject of the instant Petition for vested rights. This permission was granted by Bowles, and the Applicants paid $8,000 for the installation of water lines and fire hydrants in the subdivision. Water service is provided by the City of Green Cover Springs. In August 1976, the Applicants presented to the County a Warranty Deed for the roads shown in the Map. The County accepted the roads and agreed to continue to maintain the roads if certain improvements were made. Subsequently, the Applicants worked on making the improvements requested by the County, and the County continued to maintain the roads. The subdivision has appeared on maps used by various County departments for many years. In June 1978, Mr. Bradley appeared before the Clay County Planning, Zoning and Building Commission and requested that the remainder of the subdivision be re-zoned from agricultural to RB. This request was granted. In September 1978, the Public Works Department of Clay County requested the Applicants perform additional work on the road network in the subdivision to include creating a 20 foot drainage easement, construction of a drainage ditch, installation of street signs, and other improvements regarding grading and drainage. The drainage easement was granted to the County, and the drainage ditch was apparently constructed together with some of the other requested improvements; however, not all of the requested improvements were completed to the County's satisfaction. In March 1980, Mr. Bradley wrote Mr. Bowles a letter granting the County access to the roads within the subdivision for the purpose of maintaining them. In 1983, the County adopted new standards for the acceptance of roads not located within platted subdivisions. At this time, the Applicants became concerned about the status of the roads, and appeared before the County Commission. In November 1983, they contacted Mr. Bowles regarding their concerns. The status of County-requested improvements was a subject of continuing correspondence between the County and the Applicants. As a result thereof, the Applicants again undertook to satisfy the County regarding the list of requested improvements to the roads, and expended additional money on these improvements. The Applicants have spent over the years $20,000 on the roads, $15,000 on the water system and fire hydrants, and $4,000 on the drainage system within the subdivision. In 1984, the County Commission determined that it would not accept responsibility for maintenance of the roads, but that it would not re-convey title to the roads to the Applicants. The County has not altered its position since that determination. There are 50 numbered lots in the subdivision, and three unnumbered outparcels, some of which have been subsequently subdivided by sales. The unnumbered outparcel located in the northeast corner of the subdivision will be designated in this order as the unnumbered northeast parcel. The remaining unnumbered lots will be designated in this order as Lots A through G, which are located as follows: Lot A, located to the west of Lot 33; Lot B, located to the north of Lot A; Lot C, located to the north of Lot B; Lot C, located to the north of Lot B; Lot D, located to the north of Lot C; Lot E, located to the north of Lot D; Lot F, located to the north of Lot E, and Lot G, located to the north of Lot F. The County concedes there are 19 lots of record in the subdivision: Lots numbered lots 1, 8, 9, 10, 11, 12, 13, 33, 34, 35, 36, 37, 40, 41, 42 and 43 plus the lots designated above as Lots A, D and F. The Hearing Officer includes Lot E as one of the recorded lots because it was subdivided from Lots D and F, which the County recognizes as lots of record, after the parcel from which the three lots were created was sold as one lot. Lots 1, 8, 9, 10, 11, 12, 13, 33, 34, 35, 36, 37, 40, 41, 42, 43, and unnumbered Lots A, D, E, and F meet the Plan's criteria for development, and are not at issue in these proceedings. The Plan requires that over 70 percent of the total number of lots in a subdivision created between 1959 and 1970 be sold for the remaining lots to statutorily vest. The Applicants' subdivision does not meet the criteria in the Plan for statutory vesting because the requisite percentage of lots have not been sold. The lots at issue in the Applicant's request for equitable vesting are the remaining numbered lots ( 2, 3, 4, 5, 6, 7, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 38, 39, 44, 45, 46, 47, 48, 49, and 50), the unnumbered northeasterly parcel, and the lots designated in this order as Lots B, C, and G. On January 23, 1992, the Board of County Commissioners of Clay County formally adopted the 2001 Comprehensive Plan pursuant to and in compliance with Chapter 163, Part II, Florida Statutes. On November 23, 1993, the zoning of the subdivision was administratively changed to AR-2 which permits the building of single family residences at a density of one per five acres. None of the lots at issue are five acres in size and qualify for further development. A total of 12 homes have been built in the subdivision, each having an average size of 1,800 square feet and occupying lots approximately 1/2 acre in size. The existing layout of the roads does not permit consolidation of the unsold existing lots into five acre lots. Even if they could be consolidated, the increased costs of a five acre lot would dictate the construction of a house larger than 1,800 square feet. In sum, enforcement of the current plan's provisions will prevent any further development of a valuable piece of property conveniently located adjacent to the City of Green Cove Springs in a subdivision which has been recognized and considered in the County's development plans and maps for thirty years.
The Issue The issue to be determined in this case is whether the Leon County Development Review Committee’s preliminary conditional approval of a site and development plan for the Brookside Village Residential Subdivision is consistent with the Tallahassee-Leon County 2030 Comprehensive Plan (“Comp Plan”) and the Leon County Land Development Code (“Code”).
Findings Of Fact The Parties Petitioner Moore Pond Homeowners Association, Inc. (“Moore Pond”), is a Florida not-for-profit corporation whose members are residents of Moore Pond, a single-family subdivision bordering the Project to the east. Petitioner Ox Bottom Manor Community Association, Inc. (“Ox Bottom Manor”), is a Florida not-for-profit corporation whose members are residents of Ox Bottom Manor, a single-family residential subdivision bordering the Project to the west. Respondent Golden Oak is a Florida limited liability company. Golden Oak is the applicant for the Project and the owner of the property on which the Project will be developed. Respondent Leon County is a political subdivision of the State of Florida, and has adopted a comprehensive plan that it amends from time to time pursuant to chapter 163, Florida Statutes. Land Use Designations The Project is located on land that is designated as Residential Preservation on the Future Land Use Map of the Comp Plan, and is in the Residential Preservation zoning district established in the Code. Residential Preservation is described in both as “existing homogeneous residential areas” that should be protected from “incompatible land use intensities and density intrusions.” Policy 2.2.3 of the Future Land Use Element (“FLUE”) of the Comp Plan permits residential densities within Residential Preservation of up to six dwelling units per acre (“du/a”) if central water and sewer services are available. Central water and sewer services are available in this area of the County. The Project is located within the Urban Services Area established by the FLUE, which is the area identified by the County as desirable for new development based on the availability of existing infrastructure and services. The Project The Project is a 61-lot, detached single-family residential subdivision on a 35.17-acre parcel. To avoid adverse impacts to approximately 12 acres of environmentally sensitive area in the center of the property, the Project places the single-family lots on the periphery of the property with access from a horseshoe-shaped street that would be connected to Ox Bottom Road. The environmentally sensitive area would be maintained under a conservation easement. The “clustering” of lots and structures on uplands to avoid environmentally sensitive areas is a common practice in comprehensive planning. The Comp Plan encourages clustering or “compact” development to protect environmentally sensitive features. The Project would include a 25-foot vegetative buffer around most of the perimeter of the property. There is already a vegetative buffer around a majority of the property, but the vegetative buffer will be enhanced to achieve 75 percent opacity at the time of additional planting and 90 percent opacity within five years. The buffers would include a berm and privacy fence. The proposed buffers exceed the requirements in the Code. In the course of the application and review process for the Project, Golden Oak made changes to the site and development plan to address concerns expressed by residents of the neighboring subdivisions. These changes included an increase in lot sizes abutting lots within Moore Pond and Ox Bottom Manor; a reduction in the number of lots from 64 to 61; and an expansion and enhancement of buffers. In addition, Golden Oak revised the proposed covenants and restrictions for the Project to incorporate minimum square footage requirements and to prohibit second-story, rear-facing windows on homes abutting lots in Moore Pond and Ox Bottom Manor. The Development Review Committee approved the Project, subject to the conditions outlined in the staff report and an additional condition regarding buffers. Compatibility Petitioners contend the Project would be incompatible with adjacent residential uses in Moore Pond and Ox Bottom Manor and, therefore, the Project should be denied because it violates the provisions of the Comp Plan and Code that require compatibility. Petitioners rely mainly on FLUE Policy 2.2.3, entitled “Residential Preservation,” which states that “Consistency with surrounding residential type and density shall be a major determinant in granting development approval.” Although Moore Pond and Ox Bottom Manor are also designated Residential Preservation, Petitioners claim the Project would be incompatible because of the differences in development type and density. The Project is the same development type (detached, single-family) and density (low density, 0-6 du/a) as the surrounding development type and density. Petitioners assert that the Project is a different development type because it is “cluster housing.” Cluster housing is not a development type. Clustering is a design technique. The clustering of detached, single-family houses does not change the development type, which remains detached, single-family. Petitioners object to the density of the Project of 1.73 du/a, but their primary concern is with the Project’s “net density” or the density within the development area (outside of the conservation easement). Most of the lots in the Project would be about 1/8 to 1/4 of an acre, with the average lot size being 0.26 acres. In contrast, the lots in Moore Pond range from 1.49 to 12.39 acres, with the average size being 3.08 acres. The lots in Ox Bottom Manor range from .53 acres to 0.96 acres, with the average size being 0.67 acres. There is also a significant difference in lot coverage between the Project and the two adjacent subdivisions. The witnesses for the County and Golden Oak never acknowledged the reasonableness of Petitioners’ claim of incompatibility or the notion that owners of large houses on large lots would object to having on their border a row of small houses on small lots. However, the objection of Moore Pond and Ox Bottom Manor residents was foreseeable. The gist of the arguments made by Oak Pond and the County is that the Project is compatible as a matter of law. Respondents demonstrated that the applicable provisions of the Comp Plan and Code, as interpreted by the County, treat a proposed Residential Preservation development as compatible with existing Residential Preservation developments. Put another way: a low density, detached single-family development is deemed compatible with existing low density, detached single- family developments. No deeper analysis is required by the County to demonstrate compatibility. Petitioners’ claim of incompatibility relies principally on FLUE Policy 2.2.3(e), which states in part: At a minimum, the following factors shall be considered to determine whether a proposed development is compatible with existing or proposed low density residential uses and with the intensity, density, and scale of surrounding development within residential preservation areas: proposed use(s); intensity; density; scale; building size, mass, bulk, height and orientation; lot coverage; lot size/configuration; architecture; screening; buffers, including vegetative buffers; setbacks; signage; lighting; traffic circulation patterns; loading area locations; operating hours; noise; and odor. Petitioners attempted to show that the application of these factors to the Project demonstrates it is incompatible with Moore Pond and Ox Bottom Manor. However, Policy 2.2.3 also sets forth guiding principles for protecting existing Residential Preservation areas from other types of development on adjoining lands. No guidelines are included for protecting Residential Preservation areas from proposed low density residential development. The County asserts that this reflects the County’s determination that low density residential development is compatible with existing Residential Preservation areas and, therefore, Policy 2.2.3 does not require that the Project be reviewed using the listed compatibility factors. The County showed that its interpretation of FLUE Policy 2.2.3 for this proceeding is consistent with its past practice in applying the policy. Respondents also point to Table 6 in FLUE Policy 2.2.26, which is a Land Use Development Matrix which measures a parcel’s development potential based on certain land use principles contained in the FLUE, including the parcel’s potential compatibility with surrounding existing land uses. The Matrix shows that a proposed low density residential land use “is compatible/allowable” in the Residential Preservation land use category. Petitioners argue that the Project is incompatible, using the definition of “compatibility” in section 163.3164(9), Florida Statutes: “Compatibility” means a condition in which land uses or conditions can coexist in relative proximity to each other in a stable fashion over time such that no use or condition is unduly negatively impacted directly or indirectly by another use or condition. Petitioners contend the Project would unduly negatively impact Moore Pond and Ox Bottom Manor. Respondents contend it would not. However, as explained in the Conclusions of Law, this definition in chapter 163 is not an extra criterion for approving or denying the Project. Without abandoning their argument that Policy 2.2.3 does not require a compatibility analysis for the Project, both Golden Oak and the County performed compatibility analyses because of the objections raised by adjacent residents. Golden Oak’s expert planner analyzed compatibility on a larger scale by looking at subdivisions within a quarter-mile radius of the Project site. She found a range of densities and lot sizes, including one subdivision with a higher density and smaller lot size. However, nothing in Policy 2.2.3 or the other provisions of the Comp Plan suggests that the incompatibility of a proposed development with an existing, adjoining development is permissible if the proposed development is compatible with another development within a quarter of a mile. Still, her analysis showed the County’s past practice in interpreting and applying the relevant provisions of the Comp Plan and Consistency Code is consistent with the County’s position in this proceeding. Respondents’ compatibility analyses were based in part on legal factors. For example, it was explained that under the Comp Plan, residential density is always applied as gross density rather than net density. This policy is reasonable because it encourages clustering and compact development which helps to achieve important objectives of the Comp Plan, such as the protection of sensitive environmental features. However, it does not follow that because clustering has benefits, it cannot cause incompatibility. Clustering is a well-established growth management technique, despite the fact that clustering can cause some adverse impacts when it increases densities and intensities on the border with adjoining land uses. Such impacts are addressed with buffer requirements. This approach strikes a reasonable balance of the Comp Plan’s goals, objectives, and policies. If the buffer requirements are inadequate, as Petitioners claim, that is an issue that cannot be addressed here. Petitioners also contend the Project is inconsistent with sections of the Code that require compatibility. For example, section 10-6.617 pertains to the Residential Preservation zoning district and states that, “Compatibility with surrounding residential type and density shall be a major factor in the authorization of development approval.” Section 10-7.505(1) provides that each development shall be designed to “be as compatible as practical with nearby development and characteristics of land.” These general statements in the Code are implemented through the more specific requirements in the Code for proposed new developments. Petitioners did not demonstrate that the Project is inconsistent with any of the specific requirements of the Code for the reasons already discussed. The County showed that its interpretations of section 10-7.617 and section 10-7.505(1) for this proceeding are consistent with its past practice in applying these provisions. Summary Compatibility for purposes of land use determinations is not in the eye of the beholder, but is determined by law. The County’s growth management laws incorporate professional planning principles and use development techniques and density ranges, which provide flexibility in achieving important objectives, such as environmental protection. The focus is not on lot-to-lot differences, but on maintaining stable communities and neighborhoods. The preponderance of the evidence, which includes the County’s past interpretation of, and practice in applying, the compatibility provisions of the Comp Plan and Code, demonstrates that the Project is consistent with all requirements for approval.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Leon County Board of County Commissioners enter a final order approving the Project, subject to the conditions outlined by the Development Review Committee in its written preliminary decision dated August 18, 2017. DONE AND ENTERED this 26th day of December, 2017, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of December, 2017. COPIES FURNISHED: Justin John Givens, Esquire Anderson & Givens, P.A. 1689 Mahan Center Boulevard Tallahassee, Florida 32308 Alex Nakis 6036 Heartland Circle Tallahassee, Florida 32312 Mark Newman 6015 Quailridge Drive Tallahassee, Florida 32312 Gene Sherron 6131 Heartland Circle Tallahassee, Florida 32312 Jessica M. Icerman, Assistant County Attorney Leon County Room 202 301 South Monroe Street Tallahassee, Florida 32301 (eServed) Carley J. Schrader, Esquire Nabors, Giblin and Nickerson, P.A. Suite 200 1500 Mahan Drive Tallahassee, Florida 32308 (eServed) Gregory Thomas Stewart, Esquire Nabors, Giblin and Nickerson, P.A. Suite 200 1500 Mahan Drive Tallahassee, Florida 32308 (eServed) Kerry Anne Parsons, Esquire Nabors, Giblin & Nickerson, P.A. 1500 Mahan Drive Suite 200 Tallahassee, Florida 32308 (eServed) Gary K. Hunter, Jr., Esquire Hopping, Green & Sams, P.A. Post Office Box 6526 Tallahassee, Florida 32314 (eServed) Erin J. Tilton, Esquire Hopping Green & Sams, P.A. Post Office Box 6526 Tallahassee, Florida 32314 (eServed) Jeremy Vincent Anderson, Esquire Anderson & Givens, P.A. Suite B 1689 Mahan Center Boulevard Tallahassee, Florida 32308 (eServed) Vince S. Long, County Administrator Leon County Suite 202 301 South Monroe Street Tallahassee, Florida 32301 Herbert W. A. Thiele, County Attorney Leon County Suite 202 301 South Monroe Street Tallahassee, Florida 32301 (eServed)
Findings Of Fact Petitioner owns Lot 67 Countryside, Tract 60, which fronts on Atwood Court, with a small side (approximately 45 feet) facing Landmark Drive. Landmark Drive is a main thoroughfare with heavy traffic expected to increase as the area continues to grow. Landmark Drive is a non-addressed street on which a property owner would be permitted to erect a four-foot high fence on the property line. If Petitioner moved the fence 25 feet back from the property line the zoning regulations would permit the erection of a six-foot high fence. Moving the fence this far would place the fence some 50 feet from the right-of-way of Landmark Drive and would take up so much of Petitioner's property that his future plans to install a swimming pool would be thwarted. In the one and one-half mile stretch of Landmark Drive in the vicinity of Petitioner's property only two fences have been erected which required variances and those encroach only one or two feet into the setback line. At the same time Petitioner's request for variance was denied the board granted a variance to another owner in the same subdivision who had put up a fence without getting a variance. There, the board found it would constitute a hardship to require that landowner to remove or relocate his fence since a swimming pool was also involved. Other applications for variances to erect fences on property fronting on Landmark Drive have been denied in the past.
Findings Of Fact Negotiations for the purchase of right-of-way property for construction of Interstate Highway 95 in Palm Beach County, Florida, began on May 1, 1973. On that date the Applicant lived in an apartment at 27 S.W. 15th Avenue, Delray Beach, Florida with Ms. Willie Hendley, and seven children. The Applicant and Ms. Hendley began living together in approximately 1968. Ms. Hendley had five children at that time. The Applicant and Ms. Hendley had two more children between 1968 and 1973. This residence was located within the highway right-of- way. The Applicant was notified by the Agency that it would be necessary for them to relocate. The applicant, Ms. Hendley, and the seven children moved to a house at 230 N. W. 13th Avenue, Delray Beach, Florida, in approximately August, 1973. The Agency found the new living quarters inadequate under the regulations of the Federal Department of Transportation, which require that replacement housing must be decent, safe, and sanitary. An agent of the Agency informed the Applicant that in order to receive relocation benefits, the new residence would need to be made decent, safe, and sanitary, or the family would have to move to a new location that would meet the requirements. Several months after they moved to the house on N.W. 13th Avenue, the Applicant and Willie Hendley separated. The Applicant moved out of the house, and found a home on N. E. 9th Avenue. He anticipated that Ms. Hendley and the children would move into this home, but they did not. The Applicant stayed at this address for approximately one month. He then moved into a room at his sister's home where he stayed until the end of 1975. After they separated, Ms. Hendley and the children moved into a residence at 917 S. W. 3rd Ct., Delray Beach, Florida. This residence met the requirements of the Department of Transportation, and Ms. Hendley received relocation assistance benefits. The Applicant and Ms. Hendley and the seven children were displaced from their residence at 27 S. W. 15th Avenue, Delray Beach, Florida, as a result of the acquisition of right-of-way for Interstate Route 95. The Applicant was later displaced from the family household as a result of his separation from Ms. Hendley. There was no evidence offered at the hearing that the Applicant moved into living quarters that were comparable to the quarters at 27 S. W. 15th Avenue. That was a two bedroom apartment. The Applicant moved into a single room. The Applicant's displacement was in effect the result of his separation from Ms. Hendley, rather than the result of the acquisition of right-of-way.
The Issue The issue is whether the site plan for the Evergreens project should be approved.
Findings Of Fact Based upon all of the evidence, including the stipulation of counsel, the following findings of fact are determined: Background In this land use dispute, Petitioners, Meadowbrook Neighborhood Association, Inc.; Lynn Hill; A.A. Sulkes; Philip Bennett; Vera Harper; and Carlos McDonald (Petitioners), have contested a decision by the Developmental Review Committee (DRC) of Respondent, City of Tallahassee (City), to approve a Type B site review application for a project known as Evergreens at Mahan (Evergreens). In its decision, the DRC exempted the project from the consistency and concurrency requirements of the City's Comprehensive Plan based upon a 1991 agreement by the City and the property owner which conferred vested rights on the property. Thus, the project was never reviewed for compliance with the concurrency and consistency requirements of the City's Comprehensive Plan. If the application is approved, the applicant will be authorized to commence the process for constructing 416 apartment units in ten three-story buildings on approximately 24.56 acres of land located just south of the intersection at East Mahan Drive and Riggins Road in Tallahassee, Florida. The apartment complex will be one of the largest in the City. The application was filed by Respondent, Genesis Group (Genesis), acting as an agent for the owner of the property, Respondent, George K. Walker, Trustee (Walker). After the application is approved, Walker is contractually obligated to sell the property to Respondent, TTK, L.L.C. (TTK), a New Hampshire developer, who will actually construct the complex. In response to the DRC's decision, on August 9, 2000, Petitioners filed a Notice of Intent to File Petition for Formal Proceedings. On August 28, 2000, Petitioners filed their Petition for Formal Administrative Proceedings. As grounds for denying the application, Petitioners contended that a Stipulation and Final Settlement Agreement (Settlement Agreement) entered into by Walker and the City on August 6, 1991, in DOAH Case No. 91-4109VR determining that the property was presumptively vested violated in a number of respects the City's Vested Rights Review Ordinance (Ordinance); that any vested rights acquired on the property have expired under Section 18-104(1)(c), Code of Ordinances; and the site plan is inconsistent with the City's Comprehensive Plan and Land Development Code. As to the latter ground, the parties have agreed that this issue need not be addressed now, but rather it can be considered by the DRC in the event Petitioners prevail on the merits of this action. Other than the vesting status, no issues have been raised regarding the site plan itself. On September 11, 2000, the Commission entered its Determination of Standing. Pursuant to the Bylaws of the Commission, the matter was forwarded to the Division of Administrative Hearings (DOAH) on September 20, 2000, for an evidentiary hearing. The parties Meadowbrook Neighborhood Association, Inc. (Association) is a not-for-profit corporation organized on February 18, 2000, and existing under the laws of the State of Florida. The Association represents approximately 200 of the 279 homeowners who reside in the Meadowbrook neighborhood. The Meadowbrook neighborhood is zoned for Residential Preservation-1 and has a residential density of less than three units per acre. A portion of the Meadowbrook neigborhood is adjacent to the proposed project. Lynn Hill, A.A. Sulkes, Philip Bennett, Vera Harper, and Carlos McDonald reside and own property in the Meadowbrook neighborhood. Their property either abuts, or is close to, the location of the proposed Evergreens project. All are members of the Association and bring this action in their individual capacity and as a member of the Association. During the course of the hearing, Respondents stipulated to the standing of all Petitioners. The City is a municipal corporation of the State of Florida. It has authority to review proposed site plans for real property located within the City's geographic boundaries. Genesis is a Tallahassee consulting firm which prepared the application for Walker and acted as his agent in seeking approval of the site plan for the Evergreens project. TTK, a New Hampshire limited liability corporation, is a developer and builder of real property, and has a contract to purchase the site of the Evergreens project pending final approval of the site plan by the City. Walker is the owner of the approximately 30-acre parcel (the subject property) which is at issue in this proceeding, and is the applicant for the Evergreens site plan. The Evergreens project will be located on 24.56 acres of this 30-acre parcel. The property and its history The subject property has been owned by the Walker family, either as a part of a consortium of investors or in trust, for more than 70 years. Since the mid-1960's, Walker has controlled the property as trustee for himself and his brother. The site of the apartment complex lies a few hundred feet south of the intersection of East Mahan Drive (U.S. 90) and Riggins Road. Approximately 11.738 acres of the land sit on the eastern side of Riggins Road while the remaining 12.821 acres sit on the western side. The remainder of the property, which consists of around 7 or 8 acres, is situated just north of the apartment site, fronts on East Mahan Drive, and is currently zoned commercial. The Meadowbrook neighborhood begins approximately 1,250 feet or so south of Mahan Drive and sits on around 100 acres. The boundaries of the neighborhood abut the southern and southeastern ends of the project site. The relevant history of the property goes back to January 9, 1926, when the original plat of Glenwood Estates was recorded in Leon County (County). The property was located in the County, but not within the City, and was owned by a group that included Walker's father. The subject property was identified in the plat as Blocks L and M. The Glenwood Estates plat did not contain any statements establishing use or density for the subject property. On April 7, 1943, Glenwood Estates was replatted for taxation purposes. Walker's mother, a widow and the heir of Walker's father, was among the owners of the property. The 1943 replat reconfigured the subject property as a single, large acre parcel. The replat does not contain any statements establishing uses or densities for the platted parcels. Prior to 1967, Glenwood Estates became the sole property of Walker's mother. Upon her death, the property was placed in trust for the benefit of Walker and his brother. George K. Walker is the named trustee of the property. On March 22, 1989, the remaining property owned by Walker was subdivided into three parcels; two of the small parcels on the southwestern corner of Riggins Road and Mahan Drive were sold, thereby reducing the size of the subject property by approximately 1.56 acres. By 1991, the 1943 replat of Glenwood Estates had been resubdivided a minimum of seven times which changed the replat substantially from its original configuration. Five of the resubdivisions involved the Meadowbrook tract. Since 1989, the subject property has been configured as a large parcel of approximately 30 acres. Since 1991, the subject property is the only property in the replat that Walker has owned. In addition to his ownership of the subject property, until 1971 Walker owned approximately 69 acres of land that presently constitute a large part of the Meadowbrook neighborhood. On October 6, 1971, Walker entered into a contract for the sale of that land. Among the conditions of the sale was a requirement that the property consisting of the Meadowbrook neighborhood be rezoned R-3; that the property that is the proposed apartment site be rezoned RM-2; and that the property fronting Mahan Drive be rezoned C-1. Costs of the rezoning were to be shared equally by the buyer and seller. At the time of this sale, the subject property and the Meadowbrook tract were undeveloped. In 1972, the County rezoned the property consisting of the Meadowbrook neighborhood as R-2 for single-family residential development; rezoned the approximately 25-acre portion of the subject property north of the Meadowbrook tract as RM-2, for multi-family residential development; and rezoned the property fronting Mahan Drive as C-1 for commercial development. The multi-family zoning on the property that is the proposed location for the Evergreen project authorized a range of dwelling units from single-family to two-family to multi-family up to a maximum of 17.4 units per acre. One of the conditions of the 1971 sale was the granting of an easement by Walker to the buyer (Collins Brothers) to extend Riggins Road south from Mahan Drive to the northern boundary of the Meadowbrook tract. At the time of the sale, there was no direct access from the Meadowbrook tract north to Mahan Drive. On an undisclosed date, Collins Brothers was forced into receivership. Therefore, between 1971 and 1980, there was no development on the Meadowbrook tract or the subject property, other than the roughing-out of the location of what was to become Riggins Road. In 1980, Guardian Mortgage Investors (Guardian) took over the previous buyer's interest. At that time, Walker entered into a road construction agreement with Guardian in which he agreed to pay one-half of the road construction costs to extend Riggins Road south from Mahan Drive to the Meadowbrook subdivision. Guardian agreed to pay one-half of the road construction costs as well as all of the cost for the installation of the main water and sewer trunk lines, except for laterals which were to be installed at Walker's expense. In 1981, the construction of Riggins Road and the main water and sewer trunk lines were completed. The minimum allowable width of Riggins Road from Mahan Drive to the northern boundary of the Meadowbrook tract was 30 feet. However, it was constructed 36 feet wide so that it could serve not only the Meadowbrooks neighborhood, but also Walker's future development. For the same reason, even though the minimum right-of-way for this section of Riggins Road was 60 feet, an extra 20 feet (or 80 feet in all) were dedicated for the right-of-way. No development has occurred on the subject property since this dedication. The sewer main serving the Meadowbrook neighborhood is a gravity feed system flowing into a pump station within the Meadowbrook neighborhood. From there, it is pumped into a force main to a point under or adjacent to Riggins Road approximately 50 feet into the property that is zoned RM-2. From there, the system is again a gravity feed system flowing north under Mahan Drive to another pump station. If the sewer system had been installed to serve only the Meadowbrook neighborhood, it could have consisted only of a forced main system between the two pump stations. However, because further development was anticipated, the developer installed a gravity feed system that flowed through the RM-2 property, through the C-1 property, and under Mahan Drive at considerably more expense than a forced main system. Both the water and sewer systems have the capacity to serve 670 domestic equivalent units in the RM-2 and C-1 portions of the subject property. Following their completion, the water and sewer facilities, and Riggins Road, were dedicated to the City. Since 1983 or 1984, the City has owned, operated, and maintained Riggins Road and the water and sewer lines from Mahan to the Meadowbrook neighborhood. On April 14, 1983, Walker petitioned the City to annex his property. By Ordinance No. 83-0-2185 adopted on December 30, 1983, the Walker property, the Meadowbrook neighborhood, and considerable other properties were annexed into the City. Prior to annexation, Walker received assurance from the City that the annexation would not affect his ability to develop the RM-2 and C-1 portions of his property. The City's vesting process On July 16, 1990, the City adopted its 2010 Comprehensive Plan. Concurrent with its adoption, the City adopted a Vested Development Rights Review Ordinance (Ordinance), which established "the sole administrative procedures and standards by which a property owner" could assert that he had acquired certain property rights and obtain a vested rights determination from the City. The Ordinance is codified as Article VII of Chapter 18 of the City's Code of Ordinances. The Ordinance established the administrative procedures and standards for common law or statutory vesting. A property that was determined to be vested under the Ordinance was exempt from the application of the consistency and concurrency requirements of the City's 2010 Comprehensive Plan. Once a property is found to be exempt, or vested, it retains that status in perpetuity. In order to claim vested development rights under the Ordinance, a property owner was required to apply for a vested rights determination with the City's Planning Department within 120 days of July 16, 1990. A failure to timely file an application constituted a waiver of any vested rights claim. However, a property owner whose property was located within a recorded subdivision, or unrecorded subdivision which the City determined had satisfied the City's infrastructure requirements, did not have to submit an application for a vested rights determination. In those cases, vested rights were "presumed," based upon the infrastructure requirements being satisfied, and the property was "presumptively" vested from the concurrency and consistency requirements of the City's Comprehensive Plan pursuant to Section III.1.a. of the Ordinance. The right of a property owner to assert that his property is presumptively vested can be made at any time, even today. After reviewing its land development records, on July 25, 1990, the City published in the Tallahassee Democrat a lengthy list of recorded and unrecorded subdivisions it had determined were presumptively vested from the concurrency and consistency requirements of the City's Comprehensive Plan. The subject property, identified on the City's tax rolls by Tax I.D. #11-28-20-071-000-0, was included within the City's list of presumptively vested recorded subdivisions. The notice stated that it was the City's intent to only exempt subdivisions for which streets, stormwater management facilities, utilities, and other infrastructure required for development had been completed by July 16, 1990. Recorded subdivisions included on the list of exempt subdivisions were presumed to have satisfied the infrastructure requirements. The City did not inspect recorded subdivisions to ensure compliance with the infrastructure requirements, but presumed the existence of the requisite infrastructure. Any recorded subdivision subsequently determined not to be in compliance with the infrastructure requirements could be removed from the exempt list. Unrecorded subdivisions were not included on the exempt list unless they had first been physically inspected to ensure compliance with the infrastructure requirements. Walker's application for vested rights On October 17, 1990, the City's Director of Growth Management instructed that Walker's property be removed from the list of exempt subdivisions due to the resubdivision of the original plat and because all of the infrastructure was not in place. At that time, however, there was no provision in the Ordinance that made resubdivision a factor in the determination of an exemption or vesting. On the other hand, the issue of infrastructure was a valid consideration. On November 13, 1990, Walker timely submitted an application for a vested rights determination on the basis that his property was entitled to vesting under the common law. The City assigned Number V.R.0195T to the application. On January 8, 1991, in accordance with Section III.3.b. of the Ordinance, the City Planning Department determined that the subject property was not vested and notified Walker that Application Number V.R. 0195T was denied. No reason was given. The letter of denial advised him of his rights to contest the planning staff's denial of his vested rights. On January 22, 1991, Walker notified the City of his decision to challenge planning staff's denial of his vested rights application. He elected to waive his right to a hearing before the City Staff Committee, and he requested a hearing before DOAH pursuant to Section III.3.c. of the Ordinance. On July 3, 1991, the City referred Walker's request for an administrative hearing to DOAH on the planning staff's denial of Application Number V.R.0195T. The request was assigned DOAH Case Number 91-004109VR. On July 9, 1991, the case was scheduled for a hearing on August 29, 1991. During the pendency of the DOAH case, and at the request of the City, Walker and his counsel met with representatives of the City, including a Planning Department staffer and an assistant city attorney. Before the meeting, Walker reconfirmed with City officials that his property had been rezoned to C-1, RM-2, and R-2 in 1972, and that the necessary water and sewer lines were in place to serve his property. After learning at the meeting that infrastructure for the property had already been built, the City agreed to find Walker's property vested to the extent that the infrastructure was in place. In other words, Walker would be allowed to develop as many units as the existing infrastructure would accommodate. After the meeting, Walker secured an affidavit from Wayne Colony, the engineer who designed the water and sewer system for the property and the southern extension of Riggins Road. In his affidavit dated August 6, 1991, Coloney attested that the sewer line between Mahan Drive and the Meadowbrook neighborhood was designed to serve the single-family residences, the RM-2 property and the C-1 property; that the sewer line had the capacity to serve 670 residential equivalent units in the RM-2 and C-1 portions of that property; and that the sewer had sufficient capacity for the maximum density of development on the RM-2 and C-1 portions of the property. A letter from the City's Water and Sewer Department dated August 1, 1991, also confirmed that the City had "the necessary water and sewer lines to serve the property." Finally, Riggins Road and the stormwater drain to serve the property had been completed in the early 1980's. With this information in hand, counsel for the City agreed that the property was presumptively vested. On August 6, 1991, or just prior to the scheduled administrative hearing, counsel for Walker and the City executed the Settlement Agreement which declared the subject property an exempt subdivision based upon Section III.1.a.1. of the Ordinance, and presumptively vested the property from the consistency and concurrency requirements of the City's 2010 Comprehensive Plan. The Settlement Agreement authorized the development of the subject property for up to 670 residential equivalent units. The Settlement Agreement also stated that there was no time frame in which the Walker property was required to commence or complete development, and that the property was vested in perpetuity. On August 7, 1991, the Settlement Agreement was filed with DOAH. On August 8, 1991, an Order Approving Stipulation and Final Settlement Agreement was entered. Therefore, an administrative hearing was never held on Application V.R.0195T. Walker's application was one of hundreds of vested rights applications being processed by the City at that time. Although many of the specific details underlying the City's decision to approve the settlement are not known now because of the passage of time, the subsequent loss by the City of Walker's application file, and the sheer number of applications then being processed, the City Attorney is certain that he would have known about the petition and the underlying facts before he authorized the Assistant City Attorney to execute the agreement. Based on the information then available, the City Attorney now says that Walker clearly qualified for either common law or presumptive vesting. Petitioners contend that the Assistant City Attorney (and/or City Attorney) lacked authority to settle the case without obtaining specific prior authority from the City Commission; however, the more credible and persuasive evidence shows otherwise. This is true even though the Ordinance does not specifically address the settlement of vested rights cases. The City Attorney's policy is and has been to involve the affected City staff in settlement negotiations rather than negotiating without the consent of his client. Moreover, the present City Attorney, and his two predecessors, have always considered it a part of their inherent authority to settle litigation on the City's behalf when it is in the best interest of the City to do so. The only exception to this inherent authority is when there is a budgetary impact; in those cases, prior approval must be obtained before committing the City to spending money. Here, however, there was no fiscal impact resulting from the Walker settlement. Further, at no time after the Settlement Agreement was signed has the City Commission ever expressed its disagreement with the City Attorney's interpretation of the Ordinance, taken steps to curtail his inherent authority, or acted to vacate the Settlement Agreement. Therefore, in the absence of any credible evidence to the contrary, it is found that the Assistant City Attorney, after consultation with the City Attorney and appropriate City staff, had the authority to execute the Settlement Agreement on behalf of the City without prior City Commission approval. Petitioners also contend that based upon the language in Section III.3.e.7. of the Ordinance, there was no authority for the hearing officer to approve the Settlement Agreement until a substantive review of the information which formed the basis for the agreement had been made. The cited provision sets forth the criteria upon which the decision of the hearing officer in a vested rights case must be based. They include an evidentiary presentation by the parties at a formal hearing, adherence to certain land use guidelines and relevant case law, and a recommended order at the conclusion of the proceeding. The City points out, however, that under its interpretation of the Ordinance, once the parties learned that the property was exempt and the dispute had been settled, the criteria in Section III.3.e.7. did not apply. In those situations, no useful purpose would be served in requiring the parties to go through the formality of a de novo hearing. Otherwise, the parties (including the taxpayers) would be required to expend time, resources, and energy to litigate a matter in which no material facts were in issue. Accordingly, the City's interpretation of the Ordinance is found to be the most logical and reasonable, and it is found that the DOAH hearing officer had the authority to accept the parties' settlement without conducting a hearing. Petitioners next contend that when the Settlement Agreement was executed, the City lacked sufficient evidence to show that Walker had installed the infrastructure necessary for presumptive vesting. More specifically, they assert that except for Wayne Colony's affidavit, and the letter from the City, there was no evidence to support that determination. Petitioners go on to contend that not only must the primary roadways and water and sewer lines be built before the vesting cut-off date, but the "on-site" water and sewer lines, stormwater facilities, and other facilities necessary to begin vertical construction on each apartment building must also be in place. This contention is based on Section III.1.a.1. of the Ordinance which requires that in order for a subdivision to attain exempt status, the "streets, stormwater management facilities, utilities, and other infrastructure required for the development must have been completed as of July 16, 1990." The City Attorney's testimony on this issue is found to be the most persuasive. According to his interpretation of the Ordinance, only that infrastructure necessary to serve the subdivision must be completed in order to qualify for vesting. Conversely, on-site or private infrastructure does not have to be completed in order to satisfy the terms of the Ordinance. Therefore, on-site infrastructure is not a factor in determining whether a property qualifies for an exempt status. Indeed, as the City Attorney points out, if Petitioners' interpretation of the Ordinance were accepted, there would be "no vested lots in the City" since infrastructure is never extended from the public street to the lot prior to its development. Finally, Petitioners contend that the Settlement Agreement is invalid because Walker's application in DOAH Case No. 91-4109VR was for common law vesting while the Settlement Agreement made a determination that the property was presumptively vested. As a practical matter, there is no difference between property being exempt or being vested. Under either category, the property would not have to meet the requirements of the Comprehensive Plan. Here, the evidence shows that Walker's property qualified for both common law and presumptive vesting. Since the two types of vesting have the same practical effect, the validity of the Settlement Agreement has not been impaired. Expiration of vested rights Sections II.5.a., d., and i. of the Ordinance provide, respectively, that for purposes of a vested rights determination, an "[e]xempt subdivision," "[f]inal subdivision plat approval," or "[a]ny other development order which approved the development of land for a particular use or uses at a specified intensity of use and which allowed development activity on the land for which the development order was issued" shall be deemed a final development order. Section IV.1.c. of the Ordinance provides that "[a]ll final development orders shall expire in one year or such shorter time as may be adopted unless it is determined that substantial development has occurred and is continuing in good faith." Petitioners argue that the Settlement Agreement constitutes a "development order" within the meaning of the foregoing provisions of the Ordinance, and because no activity has occurred on the land since the Settlement Agreement was approved in 1991, the development order has expired by operation of the law. For the following reasons, this contention has been rejected. The Settlement Agreement did not approve "the development of land for a particular use or uses at a specified intensity of use" and did not allow "development activity on the land." Further, it did not allow the owner to pull building permits and commence development on his land. Rather, it simply determined which set of rules and regulations (pre-1990 or post-1990) Walker had to comply with in order to develop his property. Therefore, it cannot be "[a]ny other development order which approved the development of land for a particular use or uses at a specified intensity of use and which allowed development activity on the land for which the development order was issued." At the same time, a recorded subdivision such as Glenwood Estates is "complete" since all necessary infrastructure is in place. It has no expiration date, and no further development remains to be done to show "continuing good faith," as that term is used in the Ordinance. Therefore, even if the Walker property technically meets the definitions of an "exempt subdivision" or a "final subdivision plat approval," the expiration provisions of the Ordinance still do not apply. Finally, the City has never applied the expiration provisions of the cited provision to terminate the exempt status of a recorded subdivision, nor has it construed a vested rights determination as being a "final development order" within the meaning of the Ordinance. This interpretation of the Ordinance is found to be reasonable, and it is hereby accepted. Equitable estoppel As noted earlier, when Walker sold the Meadowbrook tract (69 acres) to Collins Brothers in 1972, he made the sale contingent on his obtaining not only residential zoning for the Meadowbrook tract, but also upon obtaining commercial and multi-family zoning on the remainder of the tract. Thus, he sold the site in reliance on his ability to develop the remainder of the tract in conformance with his master plan. As a part of that sale, Walker gave the purchasers credit towards the purchase price to defray one-half of the cost of installing the infrastructure for the entire 100-acre parcel, again in reliance on his ability to develop the property. When Collins Brothers defaulted, he paid the successor developer (Guardian) the money necessary to defray one-half of the cost of the communal infrastructure, and he paid additional funds for water and sewer taps and a storm drain, again in reliance on his ability to develop the property. Walker also petitioned the City to annex his property in the early 1980's based on a representation by the City that the annexation would not affect his ability to develop his property. After the annexation, Walker has continued to pay property taxes to the City based upon the value of the property to be developed under the property's C-1 and RM-2 zoning. In addition, Walker encumbered his property to secure loans in reliance on his ability to develop it in accordance with the terms of the Settlement Agreement. After the Settlement Agreement was approved, the City adopted a site-specific zoning plan which impacted Walker's property. Walker agreed to reduce the maximum density he might otherwise have obtained through litigation in reliance upon the City's representation that the Settlement Agreement remained in effect and that his rights under that Agreement would survive in perpetuity. Finally, Walker has entered into an option contract for the sale of his property to TTK based upon the validity of the Settlement Agreement. He has also expended substantial monies to further that sale and to develop his site plan. Other contentions Petitioners have also contended in their Proposed Recommended Order that "[t]he creation of new lots through the re-subdivision of the parent parcel [in 1989] subjects the property under review to the consistency and concurrency provisions in the City's 2010 Comprehensive Plan." Because this contention was not raised in the initial pleading or in the parties' Joint Pretrial Statement, it has been disregarded. Finally, the Association points out that multiple three-story apartment buildings will be constructed immediately adjacent to single-family homes in the Association with only an 8-foot fence and a 30-foot setback dividing the two areas. In addition, its members logically fear that the project will generate additional traffic, crime, and pollution and result in the lowering of property values in the neighborhood. It also asserts that the developer has never been willing to sit down with neighborhood members and attempt to compromise on any design aspect of the apartment complex. While these concerns are obviously legitimate and well- intended, they are not relevant to the narrow issues raised in this appeal.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Tallahassee-Leon County Planning Commission enter a final order granting the Type B site plan review application filed by George K. Walker which determined that his property is presumptively vested. DONE AND ENTERED this 8th day of February, 2001, in Tallahassee, Leon County, Florida. ___________________________________ DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of February, 2001. COPIES FURNISHED: Kenneth D. Goldberg, Esquire 1725 Mahan Drive, Suite 201 Tallahassee, Florida 32308-5201 Linda R. Hurst, Esquire City Hall, Second Floor 300 South Adams Street Tallahassee, Florida 32301-1731 Jay Adams, Esquire Broad and Cassel 215 South Monroe Street, Suite 400 Tallahassee, Florida 32301-1804 Jean Gregory, Clerk Tallahassee-Leon County Planning Commission City Hall 300 South Adams Street Tallahassee, Florida 32301-1731
The Issue Whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what action should be taken.
Findings Of Fact At all times material hereto, William D. Manser (Respondent) was licensed in Florida as a real estate broker, having been issued license number BK 0427410. Respondent was a broker/officer of United Equity Marketing, Inc., located at 6635 West Commercial Boulevard, Tamarac, Florida. Since October 1, 1995, his broker's license has not been on an active status due to non-renewal of the corporate registration. By warranty deed dated February 14, 1992, James and Angela Cunduff became owners of property located at 6531 Southwest Seventh Place, Fort Lauderdale, Florida. By Articles of Agreement for Deed dated February 25, 1992, James and Angela Cunduff agreed to convey the property to Respondent's corporation, United Capital Networks, Inc., if certain conditions were complied with. The conditions included Respondent's corporation making all the mortgage payments and paying the taxes on the property, and keeping the buildings on the property properly insured. In return, James and Angela Cunduff agreed, among other things, to execute a warranty deed to Respondent's corporation and to place the warranty deed in escrow. Respondent and the Cunduffs agreed that the Articles of Agreement for Deed would not be recorded. Respondent looked upon himself and conducted his actions as the owner of the property at 6531 Southwest Seventh Place, Fort Lauderdale, Florida. On October 31, 1995, Mary J. Augustine signed a lease agreement for the rental of a portion of the home, the rear of the home, located at 6531 Southwest Seventh Place, Fort Lauderdale, Florida. The rear area of the home had its own entrance. The rental was for one year, beginning November 15, 1995, and ending October 30, 1996. Respondent used part of the home as a storage area. At the front of the home, there were two separate entrances. One of the separate entrances was for the storage area. The other separate entrance was for another area of the home. The lease agreement indicated United Equity Markets, Inc., as the managing agent of the property. The lease agreement required signatures of the "Tenant" and the "Lessor." Ms. Augustine signed the lease as "Tenant," and Respondent signed as "Lessor," adding the word "Agent" next to his signature. United Equity Markets, Inc., is Respondent's corporation. Prior to the signing of the lease, Respondent had met with Ms. Augustine at the house at least twice before she signed the lease agreement. Respondent represented himself as the manager of the property. The home was listed as a single-family residence. Ms. Augustine believed that the home would be occupied by Respondent, another tenant, and herself. The evidence is insufficient to show and make a finding that three families would live or had lived at the home. In accordance with the lease agreement, Ms. Augustine gave Respondent $1,290, as a security deposit. Ms. Augustine had also given Respondent, prior to the security deposit, $645 for the first month's rent. Ms. Augustine wanted to move into the rear portion of the home approximately two weeks prior to the beginning of the rental period. Respondent agreed that Ms. Augustine could have access to the home and clean the rear area where she was going to reside. Ms. Augustine had problems with, such things as, the refrigerator, oven, and swimming pool. She decided not to rent the home. Ms. Augustine demanded her deposit and first month's rent from Respondent. However, he refused to return the monies. The lease agreement contained a default provision, providing for the recovery of damages by the lessor if the tenant defaulted. The lease agreement also contained a security provision, providing for the non-refundable nature of the security deposit under certain conditions, including termination of the lease prior to its expiration. Ms. Augustine attempted but could not contact Respondent at his office because he had closed his office prior to October 1995. Ms. Augustine attempted also to contact Respondent at the telephone number that he had provided her, which was his home number. She was again unsuccessful due to Respondent having his telephone disconnected because he had gone to New York to care for his ill sister. Respondent did not provide Ms. Augustine with an accounting of the monies. Respondent was conducting his own personal real estate transaction with Ms. Augustine.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Real Estate Commission enter a final order dismissing the Administrative Complaint against William D. Manser. DONE AND ENTERED this 24th day of February, 1999, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 1999.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Petitioner, Department of Community Affairs, enter a final order requiring the Respondent, Ridgewood Properties, Inc., to undergo DRI review as to Original Maitland Center but not as to the 1985 Acquisition Project. RECOMMENDED this 8th day of June, 1988, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of June, 1988.
The Issue This case was presented on an administrative complaint filed by the Florida Real Estate Commission against Florida Vantage Properties, Inc. and Richard Stewart Grimes, alleging that the Respondents were guilty of violation of Section 475.42(1)(j), Florida Statutes, by having placed or caused to be placed upon the public records of Palm Beach County, a written document which purports to effect the title of, or encumber, real property; and the recording of which was not duly authorizod by the owner of the property and for the purpose of collecting or coercing the money to the Respondents. The Florida Real Estate Commission introduced evidence that the Respondent Grimes, in behalf of the Respondent Florida Vantage Properties, Inc., (hereafter Vantage) filed an affidavit with an attached letter of agreement, which was Introduced and received into evidence as Exhibit 2, in the public records of Palm Beach County. The Florida Real Estate Commission introduced other evidence that Grimes caused those documents to be placed upon public records of Palm Beach County without the authority of the owner of the property which was the subject of the documents and for the purpose of collecting or coercing the payment of money to the Respondents. The Respondents introduced evidence concerning the documents which had been placed on the public records of Palm Beach, County concerning their original execution, purpose, and circumstances surrounding their having been placed upon the public records. Based upon the evidence presented, the issue of fact presented in this case is whether the affidavit and letter of agreement (Exhibit 2) purports to effect the title of or encumber the subject real property?
Findings Of Fact Richard Stewart Grimes and Florida Vantage Properties, Inc. are registered real estate brokers holding registrations issued by the Florida Real Estate Commission. Grimes, together with his two co-owners, sold C.W. Collins Corporation, hereafter Collins Corp., the following real property pursuant to a deposit receipt contract executed on August 20, 1973 and identified and introduced into evidence as Exhibit 4. Lot 6, Block 2, & Lots 5, 9, & 11, Block 5, Carriage Hill, as recorded in Plat Book 30, Pages 67 & 68 of the Public Records of Palm Beach County. The deposit receipt contract (Exhibit 4) was the product of negotiations entered into between Collins Corp. and Grimes and his co-owners. These negotiations had resulted in the execution of a deposit receipt contract identified and received into evidence as Exhibit 6. This deposit receipt contract addressed the proposed purchase of six lots to include the four lots eventually sold pursuant to the deposit receipt contract (Exhibit 4). Also introduced and received into evidence was a letter of agreement covering the property described in the deposit receipt contract (Exhibit 6). This letter of agreement is the same in all respects as the latter of agreement in Exhibit 2 with the exception that it addressed the two additional lots which, were the subject of the deposit receipt contract (Exhibit 6). The evidence introduced, to include the exhibits referended above, show that a portion of the consideration for the sale of the property to Collins Corp. was the letter of agreement (Exhibit 2) which contained an exclusive right of sale for Vantage and a deferred payment agreement under which Collins Corp agreed to Pay Vantage $1,000 on each lot sold by Collins Corp. Both Grimes and Collins agreed that the exclusive right of sale had been terminated prior to the date Exhibit 2 was filed in the public records of Palm Beach County, November 6, 1975. However, Collins Corp. could not unilaterally terminate the deferred payment agreement expressed in the last sentence of the letter of agreement as follows: C. W. COLLINS CORP. may also sell the property themself (sic) and will then pay only a $1,000.00 fee to FLORIDA VANTAGE PROPERTIES, INC. on each lot or house and lot package at time of closing. Grimes, as chief officer of Vantage, consulted legal counsel when Collins Corp. failed to pay $1,000 to Vantage when the corporation sold the first lot. Grimes authorized counsel to take action to obtain payment of the monies due Vantage from Collins Corp. As a result, Grimes executed the affidavit of October 7, 1975 (Exhibit 2) and caused this to be placed on the public records of Palm Beach County by counsel for Vantage and Grimes. Neither the affidavit nor the letter of agreement assert any interest in the subject property and the filing in no way constituted a notice of lis pendens.
Recommendation Based upon the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that the Florida Real Estate Commission take no action on the complaint against Florida Vantage Properties, Inc. or Richard Stewart Crimes. DONE AND ORDERED this 4th day of August, 1975, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 APPENDIX The Respondent timely filed Proposed Findings of Fact (PFF) in this cause, which were considered by the Hearing Officer as follows: Paragraphs 1 and 2 of PFF are incorporated in paragraph 1 of the Recommended Order (RD). Paragraphs 3 and 4 of PFF are incorporated in paragraph 2 of the RD. Paragraph 5 of PFF is incorporated in paragraph 3 of the RD. Paragraphs 6, 7, 8 & 10 of PFF are incorporated in paragraph 4 of the RD. Paragraphs 9, 11, 12,13 and 14 are not material to consideration of the issue presented. Paragraph 15 is consistent with the ultimate conclusion of law reached in the RD. COPIES FURNISHED: John Huskins, Esquire Staff Counsel Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802 Arthur C. Koske, Esquire Post Office Box 478 299 West Camino Gardens Blvd. Boca Raton, Florida 33432 ================================================================= AGENCY FINAL ORDER ================================================================= FLORIDA REAL ESTATE COMMISSION FLORIDA REAL ESTATE COMMISSION CD 14999 Petitioner, PROGRESS DOCKET vs. NO. 3283 FLORIDA VANTAGE PROPERTIES, INC. and RICHARD STEWART GRIMES DOAH NO. 78-696 Respondents. PALM BEACH COUNTY /
The Issue Whether Respondent, Antiquers Aerodrome, Inc. (“Respondent”), properly revived its expired restrictive covenants and other governing documents in accordance with sections 720.403-407, Florida Statutes (2015).
Findings Of Fact Respondent is a Florida for-profit corporation that serves as the governing homeowners’ association for the single- family residential, “fly-in/fly-out” community, known as Antiquers Aerodrome. The community consists of 37 individual parcels and a common airplane runway, located near Atlantic Avenue, east of the Florida Turnpike, in Palm Beach County, Florida. Petitioners Nikorowicz and Byers are parcel owners in the community. Byers purchased his 2.2 acre parcel in October 2014. At that time, there was a 5,000-square-foot single-family home, 2,000-square-foot airplane hanger, and a 2,000-square-foot garage on the property. Since then, Byers has had some chickens and a honeybee colony operation on his property. Respondent’s restrictive covenants were recorded in the public records of Palm Beach County at OR Book 1651, Page 151, on April 21, 1968. The restrictive covenants have been amended and restated from time to time. By operation of the Marketable Record Title Act (“MRTA”), chapter 712, Florida Statutes, the restrictive covenants expired April 21, 1998. Sections 720.403-407 provide the mechanism by which a homeowners’ association, such as Respondent, may revitalize its restrictive covenants because they expired by operation of MRTA. In an effort to revitalize the expired restrictive covenants pursuant to the requirements of sections 720.403-407, Respondent prepared a Notice of Special Members’ Meeting, an Agenda, a Limited Proxy, and Instructions for Completing the Limited Proxy (“revitalization package”). The revitalization package was sent to each parcel owner on July 24, 2015. The revitalization package sent to the parcel owners failed to include Respondent’s most recent bylaws--the November 7, 2010, amended bylaws. Instead, Respondent included in the revitalization package its February 12, 1998, bylaws. By failing to include the November 7, 2010, amended bylaws in the revitalization package sent to the parcel owners, Respondent failed to comply with section 720.405(3). The notice of the meeting, included within the revitalization package, contained the name, address, and telephone number of each of the three members of the revitalization organizing committee. The notice advised each parcel owner of an upcoming special membership meeting on August 15, 2015, at which time each owner would vote on the revitalization of the expired restricted covenants, either in person at the meeting or by proxy. On July 30, 2015, Peggy Preiser, as a member of the organizing committee and secretary of the Board of Directors of Respondent, sent a follow-up e-mail to the parcel owners, reminding them of the upcoming meeting on August 15, 2015. This e-mail reiterated the purpose of the upcoming special meeting-- “for the purpose of voting to revitalize (restore) the Association’s Restrictive Covenants and Reservations as provided by Sections 720.403 through 720.407, Florida Statutes.” The e-mail also reiterated that the revitalization package had been distributed to all parcel owners in preparation for the August 15, 2015, special meeting and vote. The e-mail did not contain the name, address, and telephone number of each member of the revitalization organizing committee. Ms. Preiser, as a member of the organizing committee and secretary of the Board of Directors of Respondent, also posted on July 30, 2015, another notice of the special meeting at the front gate community bulletin board. This notice contained the same information as the e-mail Ms. Preiser sent to the parcel owners on July 30, 2015. As with the e-mail, the posting at the front gate did not contain the name, address, and telephone number of each member of the revitalization organizing committee. The e-mail sent by Ms. Preiser and the posting at the front gate were notices and documents provided by the committee to parcel owners to be affected by the proposed revived declarations. By failing to provide the name, address, and telephone number of each revitalization committee member in the e-mail and front gate notices, Respondent failed to comply with section 720.405(1).2/ The special meeting was held on August 15, 2015. A quorum was present with 26 of the total 37 lots represented in person or by proxy. Byers did not attend the August 15, 2015, meeting nor did he vote by proxy. Nikorowicz did not attend the meeting, but he voted by proxy against revitalization of the restrictive covenants. A majority of 19 votes were required for the revitalization of the restrictive covenants to be approved. At the meeting, the vote was taken on whether the expired restrictive covenants should be revitalized. The votes were tallied with 22 votes for revitalization and 4 votes against revitalization. Thus, a majority of the parcel owners were in favor of revitalization of the restrictive covenants. The voting results were certified by counsel for Respondent, revitalization of the restrictive covenants was approved, and the meeting was adjourned. Petitioners contend that the following proxies counted at the August 15, 2015, meeting in favor of revitalization of the restrictive covenants were invalid because the signers were not authorized to vote on behalf of the parcel owners. Petitioners’ position is without merit. John Lumley and Carol Lumley signed a proxy. Pursuant to a quit claim deed, they are trustees of the Carl J. Lumley Revocable Trust dated May 31, 2005, which owns the parcel. As trustees of the trust, John Lumley and Carol Lumley were authorized to sign the proxy. Mayda Balboa signed a proxy. Pursuant to a warranty deed, she is the trustee of the Daoud Family Irrevocable Trust, dated May 19, 2014, which owns the parcel. As trustee of the trust, Mayda Balboa was authorized to sign the proxy. Shireen Bower and William Bower signed a proxy. Pursuant to a quit claim deed, they are trustees of the William and Shireen Bower Trust, dated 2/22/2002, which owns the parcel. As trustees of the trust, William and Shireen Bower were authorized to sign the proxy. Mike Blake signed two proxies. Pursuant to a warranty deed, he is the trustee of the Mike Blake Revocable Trust under Agreement dated December 22, 1997, which owns the parcels. As trustee of the trust, Mike Blake was authorized to sign the proxies. Cecilia A. Walsh signed a proxy. She is a managing member of 6814 Skyline, LLC, which owns the parcel. As a managing member, Cecilia A. Walsh was authorized to sign the proxy. Daniel L. Trunk signed a proxy. Pursuant to a warranty deed, he is the trustee of the Daniel J. Trunk Trust Under Agreement dated July 26, 2013, which owns the parcel. As the trustee of the trust, Daniel L. Trunk was authorized to sign the proxy. Luis Claudia Maia Ferreira and Elaine Lignelli signed a proxy. Pursuant to a warranty deed, Luiz Claudia Maia Ferreira is the trustee of the Elaine Lignelli Irrevocable Trust dated September 28, 2012, which owns the parcel. As a trustee of the trust, Luiz Claudia Maia Ferreira had authority to sign the proxy. After achieving a majority vote in favor of revitalization of the restrictive covenants, Respondent submitted a package to DEO on September 28, 2015, seeking approval of the revitalization of the restrictive covenants (“DEO package”). The DEO package contained an affidavit executed by Ms. Preiser, as an organizing committee member and secretary of Respondent. The affidavit purported to comply with the requirements of sections 720.406(1)(a) through (f). The DEO package contained the full text of the proposed revived restrictive covenants, including any amendments thereto. The DEO package contained the Certificate of Incorporation of Respondent, together with any amendments thereto. The DEO package contained a graphic depiction of the affected properties in the community, and a legal description of each parcel and the affected properties within the community. The DEO package contained verification of: a) the written consents of the requisite number of the affected parcel owners approving the revived declaration; b) a Notice of Special Members’ meeting; and c) attendance and voting results. The DEO package contained the February 12, 1998, bylaws. The DEO package did not contain the November 7, 2010, amended bylaws. The November 7, 2010, amended bylaws were the current and relevant bylaws of Respondent and governed Respondent in 2015, before and after the submittal of the revitalization package and DEO package.3/ By failing to include the November 7, 2010, amended bylaws in the DEO package, Respondent failed to comply with section 720.406(1)(b). In sum, the revitalization and DEO packages were deficient because they failed to contain all of the required documents, namely, the November 7, 2010, amended bylaws. The e-mail and front gate notices prepared by Ms. Preiser were also deficient because they failed to contain the name, address, and telephone number of each organization committee member.4/ On November 5, 2015, DEO approved the revitalization of the restrictive covenants “and other governing documents.” The revitalized restrictive covenants were recorded in the public records of Palm Beach County, Florida, at OR Book 27945, Page 1431, on November 23, 2015.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Economic Opportunity enter a Final Order disapproving the revitalization of Respondent’s expired restrictive covenants and other governing documents. DONE AND ENTERED this 24th day of February, 2017, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 2017.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following Findings of Fact: The Respondent, St. Lucie County Expressway Authority, was created by the Florida legislature in 1983, and is governed by Chapter 348, Florida Statutes. The Authority is composed of two members from the Board of County Commissioners of St. Lucie County, two members from the City Commission of Ft. Pierce, two members from the City Council of Port St. Lucie and three members appointed by the governor. Based on the anticipated future growth of St. Lucie County, there is a need for additional East-West traffic arteries in the southern portion of the county to ease expected traffic conditions. The St. Lucie County Expressway Authority employed consultants and conducted public hearings to determine the best location for such a roadway. Prior to selecting the location for the proposed East-West Expressway, the St. Lucie County Expressway Authority examined feasibility studies, traffic count reports and engineering and road design proposals on alternative alignments and found the proposed corridor to be the best choice from both an economic and environmental standpoint. The proposed expressway route connects Interstate 95 to U.S. Highway 1. Phase 1 of the project would begin in the southern portion of St. Lucie County at U.S. Highway 1 and continue east, following existing transmission lines owned by Florida Power and Light Company and extend to a point which is now called East Torino Parkway. The total length of Phase One of the project is approximately 2.6 miles. Phase Two would extend the project to Interstate 95. The St. Lucie County Expressway Authority expects to obtain funding for construction of the East-West Expressway from various sources including the State of Florida's Toll Facilities Revolving Trust Fund, the Florida Department of Transportation and state-backed revenue bonds. The use of state-backed revenue bonds would require St. Lucie County to pledge a certain portion of its gas tax revenue as security to cover the bonds in the event that the expressway did not generate enough money from tolls to pay back the bonds. A public hearing is scheduled for January, 1988 at which the St. Lucie County Commission will review updated feasibility studies and traffic count estimates to determine whether to pledge the necessary funds to support the bonds. Assuming that approval is obtained for state-backed revenue bonds, the letting of a contract to construct the East-West Expressway could be accomplished by July 1, 1989. The time period for construction of a project such as the East-West Expressway is approximately two (2) years from the date that the contract for construction is executed. Thus, under the most optimistic outlook and projections, the proposed East-West Expressway could be completed by July of 1991. However, difficulties in obtaining funding and/or necessary environmental permits could delay completion of the expressway for ten (10) years, or until 1997. In conjunction with the preparation of plans for construction of the East-West Expressway, the St. Lucie County Expressway Authority filed "right-of- way reservation maps" on October 13, 1986, in accordance with Section 337.241, Florida Statutes. The reservation maps were filed and approved by the St. Lucie County Expressway Authority in compliance with all applicable statutes and regulations. The purpose of filing the right-of-way reservation maps by the St. Lucie County Expressway Authority is to preclude development of properties within the proposed corridor of the East-West Expressway while final construction and engineering plans are being prepared, thereby preventing an increase in cost of acquisition of those properties pending eventual eminent domain proceedings. The right-of-way reservation maps will prohibit the granting of development permits, as defined in Section 380.031(4), Florida Statutes, by any governmental entity for a period of five (5) years from the date of recording of the reservation maps. This period may be extended for an additional five years at the option of the Expressway Authority pursuant to Section 337.241(2), Florida Statutes. The reservation maps do not prohibit sale, continued use of the property by its owners nor is any use prohibited which does not require a development permit as defined in Section 380.031(4), Florida Statutes. The engineering construction plans for the East-West Expressway encompass less area than the reservation maps. However, the larger reserved area will be utilized to facilitate construction of the project and for water retention on site. Thus, less private property will ultimately be taken than that which is included in the right-of-way reservation area. The property owned by Petitioners, T. L. Sloan, James Taylor and Bill Stewart (hereinafter referred to as the "Sloan property") consists of a front and rear parcel. The front parcel consists of 6.54 acres of which 2.28 are within the right-of-way reservation area. The rear parcel is physically separated from the front parcel by a drainage canal and consists of approximately 4.25 acres. The rear parcel is not within the reservation map area, but access to this parcel can only be gained by U.S. Highway 1 through the front property. The property owned by Petitioners Mark C. Walters and David J. Gonzalez (hereinafter referred to as the "Walters' property") measures approximately 55,450 square feet of which approximately 46,000 square feet are within the right-of-way reservation area. The Sloan and Walters' properties are located at the easternmost end of the proposed East-West Expressway and front the east side of U.S. Highway 1 in Ft. Pierce, Florida. Both properties were purchased in 1984 as investment property and are presently vacant, unimproved acreage. The front parcel of the Sloan property is zoned commercial general and the rear parcel is zoned multifamily residential at five units per acre. The Walters' property is zoned commercial general and is adjacent to the Florida Power and Light transmission lines. The St. Lucie County Expressway Authority intends to use the property within the reserved area for the construction of the entrance and exit ramps of the proposed expressway. The engineering design of the East-West Expressway was done with as little intrusion upon Petitioner's properties as practical and only that property absolutely necessary for construction will ultimately be taken. Pursuant to the right-of-way reservation maps, all of the highway frontage on U.S. Highway 1 for both properties has been reserved for the expressway construction. Because of existing regulations, the St. Lucie County zoning office will not issue any development permits for property which has no access to a public highway. Therefore, the local zoning office will not issue any development permits for any portion of the Petitioners' properties, whether included in the reservation area or not. Thus, all of the property owned by Petitioners has been affected by the right-of-way reservation maps. The Sloan property was listed for sale prior to the recording of the right-of-way reservation maps. The Walters' property was purchased with the intent to build a gun shop which is now operated by the present owners at another location. After the recording of the reservation maps, the Walters' property was actively listed for sale. After the recording of the reservation maps, purchase inquiries regarding the Sloan property began to rapidly decrease. Inquiries regarding the Walters' property have also been extremely slow. No written offers to purchase the subject properties have been submitted to any of the Petitioners. David Fuller, a real property appraiser called as a witness by Petitioners, prepared an appraisal estimating the effects of recording the right-of-way reservation maps on the Sloan and Walters' property. The testimony of Mr. Fuller is accepted as more credible and pertinent to the issues involved in this cause than the testimony presented by Mr. Davis, the Respondent's expert appraiser. Mr. Davis admitted that the purpose of his appraisal was to estimate the fair market value of the property in fee simple, the part "taken" and damages to the remainder for the purpose of eminent domain. Mr. Davis' analysis is more appropriate for an action sounding in eminent domain. Mr. Fuller used the Sales Comparison or Market Approach combined with a discounted cash flow method of appraisal in determining the difference in the value of the properties before the recording of the right-of-way reservation maps, and the market value of the properties immediately after recording of the reservation maps. The value of real property is directly related to the use to which it can be put. Thus, a particular parcel may have several different value levels under alternative uses. In determining what, if any, substantial impact the record of the right-of-way reservation maps had on the market value of the Sloan and Walters' property, Fuller evaluated the difference in the value of the properties utilizing their highest and best use before the filing of the right- of-way reservation maps and the highest and best use after the recording of the maps. The highest and best use for the Sloan property without the encumbrance of the right-of-way maps would be to improve the front commercial zoned parcel with a commercial use consistent with neighborhood use trends (i.e., strip shopping centers, rental storage buildings and/or automobile dealerships) and improve the rear multifamily zoned parcel with a support use for the front commercial property. The highest and best use of the Sloan property after filing of the right-of-way reservation maps would be to hold the property as vacant until the right-of-way reservation map filing expires. Although the Sloan property could be sold with the right-of-way reservation, a majority of the potential market would be eliminated and the remaining market would require a discount to purchase the property knowing that the restrictions exist. The potential market in the neighborhood consists of generally three types of investors; (1) the owner occupant; (2) the real estate investor seeking income from an improved property; and (3), the short term land speculator. The owner occupant seeking to immediately build would not consider the property in question because the potential to immediately construct a new improvement is not available. Likewise, the investor seeking to build an income producing improvement, either immediately or in the next three years, would not be interested in the property. The short term land speculator would not be interested because there is no certainty that the property would be able to be developed to its highest potential market value within the next two to three years. The highest and best use for the Walters' property without the encumbrance of the right-of-way reservation maps would be to improve the parcel in approximately one to two years with a commercial use consistent with the neighborhood trends (i.e., owner occupied small business and/or mini-storage property). Improved uses such as an automobile dealership or shopping center could not be physically constructed on a site the size and shape of the Walters' property. The highest and best use of the Walters' property after filing of the right-of-way reservation maps would be to hold the parcel vacant until the reservation filing expires. As with the Sloan property, although the parcel could be sold, a majority of the potential market would be eliminated and the remaining market would require a discount to purchase the property knowing that the restrictions exist. Mr. Fuller stated that in his opinion, using the discounted cash flow model of appraisal, the Sloan properties suffered a total loss in value of approximately $441,450.00 on the date the reservation maps were filed. As to the Walters' property, the loss was calculated at $78,480.00. Mr. Fuller's financial calculations as to loss are misleading and not very useful because they were specifically calculated for a period of time of ten years. In other words, Mr. Fuller's total loss of value calculations are based on the assumption that the reservation map restrictions would exist for the full initial five (5) year period and that they would be extended for an additional five (5) year period. The ability to develop vacant and unimproved commercial property and to put the land to its highest and best use is a substantial beneficial ownership interest arising out of the ownership of commercial property. Both of the properties owned by Petitioners are fully capable of development and no other impediments to development exist except for the reservation maps. Substantial payments on the mortgages for the properties are being made by Petitioners each year totalling over $58,000.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that the St. Lucie County Expressway Authority enter a Final Order in favor of Petitioners after which the Authority shall have 180 days from the date of said order to acquire the Petitioners property or initiate appropriate acquisition proceedings pursuant to the requirements of Section 337.241, Florida Statutes. DONE and ORDERED this 2nd day of December, 1987, in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of December, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 87-2279, 87-2517 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Finding of Fact 1. Adopted in Findings of Fact 7 and 8. Adopted in Finding of Fact 7. Adopted in Findings of Fact 11, 12 and 13. Adopted in Findings of Fact 11, 12, 13 and 14. Adopted in Finding of Fact 15. Adopted in Finding of Fact 16. Adopted in Findings of Fact 9, 17 and 18. Adopted in substance in Findings of Fact 23, 25 and 27. Partially adopted in Findings of Fact 6 and 26. Matters not contained therein are rejected as misleading and/or argument. Adopted in substance inn Finding of Fact 27. Addressed in Conclusions of Law section. Addressed in Conclusions of Law section. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. Adopted in Finding of Fact 8. Adopted in Finding of Fact 7. Adopted in Finding of Fact 7. Adopted in Finding of Fact 13. Adopted in Finding of Fact 10. Adopted in Finding of Fact 3. Adopted in Finding of Fact 9. Rejected as subordinate and/or unnecessary. Adopted in Finding of Fact 11. Adopted in Finding of Fact 12. Adopted in Finding of Fact 13. Adopted in Findings of Fact 13 and 14. Adopted in Findings of Fact 13 and 14. Rejected as subordinate and/or unnecessary. Adopted in Finding of Fact 18. Adopted in Finding of Fact 9. Adopted in Finding of Fact 9. Adopted in Finding of Fact 15. Adopted in substance in Finding of Fact 10. Partially adopted in Finding of Fact 26. Matters not contained therein are rejected as misleading and/or not supported by the weight of the evidence. Rejected as contrary to the weight of the evidence. Adopted in substance in Finding of Fact 6. Rejected as misleading. The Petitioners' expert projected that "completion" and not "construction" could possibly take 10 years. Adopted in substance in Finding of Fact 9. COPIES FURNISHED: John T. Brennan, Esquire Post Office Box 3779 Ft. Pierce, Florida 33448-3779 Frank J. Lynch, Jr., Esquire Post Office Box 4027 Ft. Pierce, Florida 33448-4027 David Stuart Chairman St. Lucie County Expressway Authority Post Office Box 4027 Ft. Pierce, Florida 33448-4027
