The Issue Whether the Appellant, Devoe L. Moore, has demonstrated, by a preponderance of the evidence, that development rights in certain real property he owns have vested against the provisions of the Tallahassee-Leon County 2010 Comprehensive Plan?
Findings Of Fact The Property at Issue. On September 18, 1987, Devoe Moore acquired a tract of approximately 28 acres of real estate (hereinafter referred to as the "Property"), located on Lake Bradford Road just south of Gaines Street, in the City of Tallahassee, Leon County, Florida. The Property was the former location of the Elberta Crate and Box Company. The Property was at the time of purchase, and still is, zoned M-2, Industrial. Development of the Property. Mr. Moore intended to develop the Property consistent with the Property's M-2, Industrial zoning. Mr. Moore intended to build a service/commercial/mini-storage development similar to another such development of Mr. Moore in the City. In December, 1987, Mr. Moore had his engineer prepare grading and drainage plans for the Property. On January 29, 1988, Mr. Moore had an application for an amendment to a stormwater permit, Environmental Management Permit 87-1087, filed with the Leon County Department of Public Works. At that time, Leon County issued such permits for property in unincorporated areas and inside the City's limits. The grading and drainage plans for the Property were filed with the application. Leon County had not been delegated any responsibility or authority to make land-use decisions for the City. The requested amendment to Permit 87-1087 was based on an assumption of Mr. Moore that the Property would consist of 80% coverage with impervious surface. Therefore, the City was aware or should have been aware that Mr. Moore intended to construct a major development on the Property. Such a development was consistent with the zoning on the Property at the time. Neither Leon County nor the City, however, approved or in anyway addressed the issue of whether 80% coverage of the Property with impervious surface was acceptable. Nor did the City or Leon County make any representation to Mr. Moore different from that made by the City's zoning of the Property. Mr. Moore filed a site plan showing a development of 80% coverage with the application for amendment to Permit 87-1087. These plans showed a development consisting of thirteen rectangular buildings, driveways and parking area. The indicated development, however, was not reviewed or in anyway approved by Leon County or the City. On May 6, 1988, a Stormwater Permit, amending Permit 87-1087, was issued to Mr. Moore. This permit only approved the construction of a holding pond and filling on the Property. The issuance of the permit did not constitute approval of any proposed development of the Property. In 1988, Mr. Moore began clearing the Property of buildings on the Property which the City had condemned. Mr. Moore also began filling and grading the Property in 1988, and has continued to do so to varying degrees through July 16, 1991. From January 1989, through August, 1990, SANDCO placed 1,174 loads of fill on the Property. Jimmy Crowder Construction Company has also performed filling and grading work on the Property since 1988. As of the date the City's vesting ordnance was adopted and as of the date of the hearing before the Division of Administrative Hearings Mr. Moore has not completed filling on the Property. Mr. Moore also has not completed filtration improvements to the storm water hold pond to be constructed on the Property. Additional water treatment facilities on the Property must be constructed to handle runoff from the Property. No roadways, water services, sewer services or electric services have been constructed on the Property. Site preparation on the Property has not been completed so that construction of vertical improvements can begin. At the time that Mr. Moore acquired the Property, only building permits were required for the development of the Property. The evidence failed to prove that Mr. Moore obtained the required building permits. The law was changed, however, to require approval of a site plan. Mr. Moore decided not to submit a site plan at least in part because of the City's work on the sewer main. The weight of the evidence, however, failed to prove that Mr. Moore was prohibited by the City from obtaining site plan approval. The City has not approved or reviewed a site plan for the Property. At the time Mr. Moore purchased the Property, and continuing to the present, a City sewer main which runs along the southern border of the Property has been a problem. The sewer main is a health hazard because it is located in proximity to the surface of the ground and it has numerous leaks. The City indicated that it intended to build a new sewer main across the Property and Mr. Moore agreed to give the City an easement for the sewer main. After Mr. Moore purchased the Property and before February, 1989, Mr. Moore made a number of requests to the City that the City identify the easement it desired and prepare the easement grant so that the City could construct the new sewer main and Mr. Moore could proceed with his development. Requests were also made by some City employees of the City Attorney that the easement be prepared and executed because of the problem with the existing sewer main. In April, 1989, the easement grant was prepared and executed. On August 3, 1990, James S. Caldwell, Assistant Director of the City Water and Sewer Department, wrote the following letter to Mr. Moore: It has been brought to my attention that your are proceeding with construction of a stormwater holding pond on the referenced site [the Elberta Crate Site]. As discussed with you this date and as you are aware, the City has a sewer line on this property. The sewer line would be damaged by your construction activity. The City has designed a relocation and upgrade of the sewer line to be constructed on an easement previously acquired from you. Our schedule for the sewer line construction is completion by January 1, 1991. A review of your stormwater holding pond drawings and the proposed sewer line reveals a potential conflict between the proposed line and the holding pond. We shall have City staff stake out and flag the existing sewer line and the proposed sewer line. We are requesting that your construction activity stay away from the existing sewer line. After stakeout of the proposed sewer line, you may check your stormwater pond plans to assure that there is no conflict. [Emphasis added]. Mr. Moore was also told on other occasions to avoid interfering with the existing sewer line and the construction of the new sewer line. Construction of the new sewer main on the Property was not commenced until January, 1991. The construction had not been completed as of March, 1991. Part of the delay in completing the sewer main was caused by contemplated changes in the location of the sewer main and the possible need for a different easement. The weight of the evidence failed to prove that Mr. Moore was told to cease all activity on the Property. Costs Incurred by Mr. Moore. Mr. Moore paid approximately $1,000,000.00 for the Property. The weight of the evidence failed to prove that this cost was incurred in reliance upon any representation from the City as to the use the Property could be put other than the existing zoning of the Property. Mr. Moore spent approximately $247,541.22, for demolition of existing buildings, site clearing and grading, engineering costs, fill, permitting fees and partial construction of the stormwater management system for the Property. Mr. Moore also donated an easement to the City with a value of approximately $26,000.00. The weight of the evidence failed to prove that these expenditures were made in reliance upon any representation by the City as to the use to which the Property could be put other than the existing zoning of the Property and the stormwater management permit. Mr. Moore also incurred approximately $100,000.00 in expenditures similar to those addressed in the previous finding of fact for which Mr. Moore was unable to find documentation. The weight of the evidence failed to prove that these expenditures were made in reliance upon any representation by the City as to the use to which the Property could be put other than the zoning of the Property and the stormwater management permit. Development of the Property Under the 2010 Comprehensive Plan. Mr. Moore's proposed development of the Property appears to meet the concurrency requirements of the Tallahassee-Leon County 2010 Comprehensive Plan. Mr. Moore's proposed development of the Property, however, appears to be inconsistent with the 2010 Plan because the Future Land Use Element district in which the Property is located does not permit industrial uses and the intended industrial use of the Property is incompatible with some of the uses to which adjacent property has been put. Procedure. Mr. Moore filed an Application for Vested Rights Determination prior to the filing of the application at issue in this proceeding. That application was denied by the City on October 16, 1991. In the first application Mr. Moore indicated that the Property was to be used for student housing. On or about November 13, 1991, Mr. Moore filed an Application for Vested Rights Determination (hereinafter referred to as the "Application") (Application VR0295T), with the City. "Devoe L. Moore" was listed as the owner/agent of the Property in the Application. It is indicated that the project at issue in the Application is "[i]ndustrial development of former Elberta Crate and Box Company site by Devoe L. Moore." "Progress . . . Toward Completion" is described as (1) Owner/contractor estimate; (2) Environmental Management Permit; (3) Site preparation from December, 1987, to the date the Application was filed; and (4) Construction of the stormwater system in 1990. In a letter dated February 6, 1991, Mr. Moore was informed that his Application was being denied. By letter dated February 18, 1991, Mr. Moore requested a hearing before a Staff Committee for review of the denial of his Application. On March 11, 1991, a hearing was held to consider the Application before the Staff Committee. The Staff Committee was comprised of Jim English, City Attorney, Mark Gumula, Director of the Tallahassee-Leon County Planning Department and Buddy Holshouser, Director for the City's Growth Management Department. At the conclusion of this hearing the Staff Committee voted 2 to 1 to deny the Application. By letter dated March 19, 1991, Mark Gumula, Director of Planning of the Tallahassee-Leon County Planning Department, informed Mr. Moore that the Application had been denied. By letter dated April 4, 1991, to Mr. Gumula, Mr. Moore appealed the decision to deny the Application. By letter dated July 3, 1991, the Division of Administrative Hearings was requested to provide a Hearing Officer to review this matter. By agreement of the parties, the undersigned allowed the parties to supplement the record in this matter on August 27, 1991. F. Other Projects Approved by the City. Mr. Moore submitted, without objection from the City, other vesting rights applications and final orders concerning such applications which were ultimately approved by the City. All of those cases are distinguishable from this matter. See the City's proposed finding of fact 30.
Findings Of Fact Petitioners filed separate, although virtually identical, applications with the Department in February, 1983 to construct separate catwalks from their properties, with platforms at the end of each catwalk. The dimensions of each catwalk were to be three feet by 350 feet, and the platform dimensions were to be six feet by twelve feet. This construction was to take place through a marsh and mangrove wetland and tidal creek known as Andrews Creek. Petitioner's properties adjoin and are in the interior of the creek. Intervenor's property is located at the mouth of Andrews Creek where it intersects a canal, and borders that area of the creek through which Petitioners proposed to construct their catwalks and platforms. On March 9, 1983 the Department notified Petitioners that a permit would be required for their project pursuant to Chapters 253 and 403, F.S., that their applications were incomplete, and that approval from the Department of Natural Resources in the form of a "consent of use of state-owned land" might be required. Petitioners provided additional information in support of their application, but were again notified on April 5, 1983 that Department of Natural Resources consent or approval was necessary in order to complete their application file. The Department prepared a permit application appraisal report on June 13, 1983 without the benefit of an on-site inspection for these applications. The appraisal was based upon written materials submitted by Petitioners in their applications. The appraisal recommended approval, noting that a single joint access facility would be preferable to the dual catwalk and platform configuration proposed by Petitioners As a result of this appraisal, the Department notified the Department of Natural Resources on July 1, 1983 that it intended to issue permits to the Petitioners but that it needed a response from the Department of Natural Resources concerning consent of use or approval pursuant to Section 253.77, F.S. Final action on Petitioners' applications could not take place until the Department received a reply from the Department of Natural Resources. Petitioners received a copy of this notice which was sent from the Department to the Department of Natural Resources. Petitioner was again notified on August 29, 1983 that consent or approval from the Department of Natural Resources was required before the Department's approval could be given. The August 29 letter also stated that Petitioners would have to obtain a letter of authorization and affidavit of ownership from any property owner, other than Petitioners themselves, whose property would be crossed by their construction. In response, Petitioners submitted to the Department an approval they received from the local homeowner's association, but this approval was not issued in compliance with the association's by-laws, and was therefore not a valid authorization and consent to the use of whatever interest the association has in Andrews Creek. On December 5, 1933 Petitioners notified the Department that they were amending their applications to eliminate the platforms at the end of their respective catwalks. On or about January 3, 1984 the Department of Natural Resources suggested to the Department that public notice of this project be given due to the type and location of the project. The Department notified Petitioners on January 26, 1984 that since numerous property owners might be affected by their project, a public notice would have to be published. In response to such publication, the Department received letters from other property owners on Andrews Creek which both opposed and supported Petitioners' project. At about the same time, the Department learned that Petitioners had already constructed their catwalks, with one large platform joining the ends of both catwalks. This construction took place despite the lack of either a permit from the Department or consent/approval from the Department of Natural Resources. Petitioners' applications indicate the use of six inch pilings and a portable jet pump with a one inch jet nozzle in the construction of their project. The Department performed a field inspection of the site and issued a permit application appraisal report dated May 3, 1984 which recommended denial of the permit applications while also confirming that the project had already been constructed. Denial was recommended since the dimensions of the actual construction exceeded the project dimensions described in the applications, considerable clearing of mangroves had taken place although the applications stated no such clearing would be required, and the adverse impact on water quality, marine productivity and other environmental factors the two catwalks were found to terminate with a large platform thirty-eight feet long by ten feet wide, with Zembillas' catwalk being 417.5 feet in length and Starzak's being 398 feet long. The combined project has a total square footage of approximately 3700 square feet, with each catwalk exceeding the permit exemption dimensions of 1000 square feet. Andrews Creek has been designated a conservation area and therefore the clearing and resulting damage to the mangrove community resulting from this project is particularly significant. As part of a permitting action in 1972 the State of Florida, through he Board of Trustees of the Internal Improvement Trust Fund, negotiated with Lindrick Corporation, the developer of the residential area surrounding Andrews Creek, to preserve certain areas from development. The Board of Trustees issued a permit to Lindrick Corporation "to perform certain works in the navigable waters of the State of Florida" which allowed half of Andrews Creek to be filled and which preserved the other half that remains today as a conservation area. The conservation area was to be protected from development. Thereafter, the Lindrick Corporation entered into an agreement with the homeowner's association whereby association approval would be required for development in the conservation area. Petitioners' project, as constructed, shades a larger area than it would have if built in accordance with their applications. Shading of wetlands can reduce dissolved oxygen levels of a wetland and thereby reduce the area's productivity. Although Petitioners offered a laboratory report showing exceedingly high dissolved oxygen levels in Andrews Creek, it appears that the sampling technique used resulted in the aeration of the sample which therefore did not reflect the true level of dissolved oxygen. Intervenor testified that he purchased his property because of the designation of Andrews Creek as a conservation area, and the resulting privacy of such a natural habitat. Petitioners' construction has obstructed Intervenor's view of the water and wetlands area of Andrews Creek, and infringes on this privacy due to the close proximity of Petitioners' platform to Intervenor's property. The catwalk is twelve to fourteen feet from the boundary of Intervenor's property. The portion of Andrews Creek crossed by Petitioners' project is navigable according to testimony presented, and as recognized in 1972 when a dredging permit was issued to the developer, Lindrick Corporation. The portion in question includes the original tidal creek, which is a tributary of the Gulf of Mexico via an excavated channel. Navigability of the creek has been adversely affected by this project. There would be a significant, adverse, cumulative effect on Andrews Creek if other surrounding property owners decided to construct docks similar to Petitioners' since this would involve additional clearing of mangroves, a reduction of dissolved oxygen in the water due to extensive shading, and the further elimination of the creek's navigability. There are eighteen (18) property owners on Andrews Creek, including Petitioners and the Intervenor, and there is a reasonable likelihood that other homeowners will apply for permits to construct similar docks.
Recommendation Based upon the foregoing findings of fact and conclusions of law it is recommended that: Petitioners permit applications be DENIED. Petitioners shall have forty-five (45) days from rendition of the Final Order in this case to remove their dock, consisting of catwalks, a connecting platform and support pilings. DONE and ENTERED this 1st day of April, 1985 at Tallahassee, Florida. DONALD D. CONN 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 1st day of April, 1987. COPIES FURNISHED: Charles G. Stephens, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Nicholas M. Zembillas 2001 Dewey Drive New Port Richey, Florida 33552 Martha Harrell Hall Esquire Post Office Drawer 190 Tallahassee, Florida 32301 W. L. Starzak 2003 Dewey Drive New Port Richey, Florida 33552 Victoria J. Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
Findings Of Fact The Subject Property. The property at issue in this case had previously been owned by an individual who had begun development of the subject property and adjoining property (hereinafter referred to as the "Dawkins' Property"), in the late 1970's and early 1980's. Part of the Dawkins Property was developed and has been sold (hereinafter referred to as the "Bank Tract"). The subject property (hereinafter referred to as the "Golden Tract"), was acquired by Golden/Jacksonville Co. in December, 1986. Development of the Property; Government Action Relied Upon by the Applicant. Most of the Dawkins Property, including most of the Golden Tract, was approved and zoned in 1977 by Clay County for development as a shopping center. A part of the Golden Tract (hereinafter referred to as the "Multifamily Tract"), however, was not zoned for development as a shopping center at that time. Part of the Dawkins Property (the Bank Tract) was fully developed as a bank. Various environmental permits required to further develop the Dawkins Property, less the Bank Tract and the Multifamily Tract, as a shopping center were acquired by the previous owner of the property. Permits were issued by the Florida Department of Environmental Regulation and the St. Johns Water Management District. Prior to purchasing the Golden Tract, the Applicant sought assurance of Clay County that the Golden Tract (but not the Multifamily Tract) was zoned for development as a shopping center. Clay County, in a letter dated December 9, 1985, confirmed that development of the Golden Tract as a shopping center was consistent with the then current zoning for the property. In confirming the zoning of the Golden Tract, Clay County notified the Applicant that it would be necessary that a traffic signal be installed at an intersection on Blanding Boulevard which would be impacted by the shopping center. In 1987, the Applicant sought and obtained approval of the rezoning of the Multifamily Tract for development as a shopping center. The Applicant submitted a revised site plan for the proposed shopping center dated August 27, 1987 to Clay County for approval in connection with the request to rezone the Multifamily Tract. The site plan included the development of 264,000 square feet of commercial space. The August 27, 1987 revised site plan was approved by Clay County in November, 1987. In May, 1988, the Applicant applied with the Florida Department of Transportation (hereinafter referred to as "DOT"), for a drainage connection permit and a driveway connection permit in connection with providing access to the proposed shopping center. As a condition of issuing the required permit, DOT required that Clay County construct certain intersection improvements on Blanding Boulevard, the main traffic artery adjacent to the Golden Property. The Applicant entered into negotiations with Clay County in order to get the Blanding Boulevard intersection improvements required by DOT completed. On January 9, 1990, the Applicant and Clay County entered into an agreement wherein the Applicant agreed to pay Clay County 50% of the costs (up to a total of $23,000.00) of the DOT-required intersection improvements. The Applicant's Detrimental Reliance. In reliance on Clay County's actions in informing the Applicant that it would be required to provide a traffic signal in order to proceed with the development of the Golden Tract, the Applicant had the traffic signal installed at a cost of $7,500.00. Following approval of the August 27, 1987 revised site plan by Clay County, the Applicant spent approximately $128,000.00 to construct a stormwater retention pond required by the St. Johns River Water Management District. Part of the costs of intersection improvements required by DOT were incurred by the Applicant. The weight of the evidence failed to prove how much the Applicant actually spent, however. The Applicant also proceeded with the development of the Golden Tract, incurring architecture and engineering fees and other costs associated with the proposed development of the Golden Tract. A detailed breakdown of various expenses incurred by the Applicant was included at tab 25 of the documentation filed in support of the Application. Although not all of the expenditures listed at tab 25, i.e., taxes and costs associated with the purchase of the Golden Property, are relevant to the issues in this proceeding, some of the expenditures were incurred in reliance on the actions of Clay County other than approval of zoning of the Golden Tract. Rights That Will Be Destroyed. Pursuant to the Clay County 2001 Comprehensive Plan, there are insufficient "peak hour trips" available on the roads impacted by the Golden Tract to accommodate the peak hour trips required for the Golden Tract if it is developed as a shopping center. Procedural Requirements. The parties stipulated that the procedural requirements of the Vested Rights Review Process of Clay County, adopted by Clay County Ordinance 92-18, as amended by Clay County Ordinance 92-22 have been met.
The Issue Whether Petitioners have standing to initiate formal proceedings under the City of Tallahassee Code of Ordinances. Whether the Planning Commission has jurisdiction to consider a challenge to the City's vested rights determination. Whether the Respondents Barnette W. Allen and Sally P. Allen's (Allens) proposed development, known as the Allenwoods Apartments project, is exempt from the consistency and concurrency requirements of the City of Tallahassee's (City) Comprehensive Plan.
Findings Of Fact Parties Petitioner Downtown Park Avenue Neighborhood Association (Neighborhood Association), Inc., is not-for-profit corporation organized on August 18, 1997, and existing under the laws of the State of Florida. The Neighborhood Association's principal office is located at 858 East Call Street, Tallahassee, Florida. The purpose of the Neighborhood Association is to preserve the residential nature and stability of the members' neighborhood. The members of the Neighborhood Association reside in close proximity to the property upon which the Allenwoods Apartments project is proposed to be constructed. Some members of the Neighborhood Association own property within 500 feet or less of the subject property. Petitioner Dana Plummer resides at 133-9 Oak Street, Tallahassee, Florida, which is in close proximity to the property upon which the Allenwoods Apartments project is proposed to be constructed. Mr. Plummer owns property less than 300 feet from the subject property. Plummer is the President of the Neighborhood Association. Respondent City of Tallahassee is a municipal corporation of the State of Florida. The City's DRC approved a Type B Site Plan application for the Allenwoods Apartments project. Respondents Allens are the owners of the property on which the proposed Allenwoods Apartments are to be located, and which property is designated as Blocks D and F in the Magnolia Heights Addition of the Hays Division. Allenwoods Apartments The Allenwoods Apartments is proposed to be constructed in approximately 8.64 acres, and is located on the north side of Call Street. The Allenwoods Apartments is proposed to consist of 88 apartment units. The apartments will be located within three three-story buildings and one two-story building, with a total of 202 parking spaces. The density of the proposed Allenwoods Apartments project is approximately ten units per acre. On October 24, 1996, the Planning Department issued Land Use Compliance Certificate No. CC960429 which stated that: This site is eligible for development of 110 multi-family dwelling units developed at the RM-1 standards in Hays Subdivision, an exempt subdivision. Type B review required in proximity with existing low density residential uses. Notice of the Planning Department's decision to issue Land Use Compliance Certificate No. CC960429 was not provided to any members of the Neighborhood Association nor to Plummer. In May 1997, the Allens submitted a Type B Site Plan application for the Allenwoods Apartments project. In mid-June 1997, during the City's review of the proposed project, the City determined that the Allens' two lots qualified as lots located within a subdivision recorded as of July 16, 1990, and all infrastructure required for the development of the property was completed prior to that date. Accordingly, the City staff determined that, pursuant to Section 18-103(1)(a)(1) of the City's Vested Rights Review Ordinance, the proposed Allenwoods Apartments project did not have to comply with the concurrency and consistency requirements of the City's 2010 Comprehensive Plan. Consequently, the City staff did not review the Allenwoods Apartments project for consistency with the City's 2010 Comprehensive Plan, nor did the City review the project for concurrency. On August 11, 1997, the City's Development Review Committee approved the Type B Site Plan application for the Allenwoods Apartments project. Single-family residences are the primary use of the properties immediately adjacent to the Allens property. All existing multi-family units that have been constructed in the neighborhood were constructed prior to the adoption of the City's 2010 Comprehensive Plan. History of the Subject Property On May 1, 1910, J. L. Hays recorded a subdivision known as the Magnolia Heights Addition of the Hays Division. The plat for the Magnolia Heights Addition of the Hays Division is recorded at Deed Book "KK," page 600, of the Public Records of Leon County. The plat depicted a street running between Blocks F and G. The plat also depicted a street between Blocks D and F. These streets were never constructed. On January 15, 1946, H. H. Wells acquired certain Blocks of the Magnolia Heights Addition of the Hays Division, including all of Blocks D and F, and a portion of Block E. On March 11, 1946, H. H. Wells and Susye Bell Wells replated all of Block C and a portion of B, D, E, F, and G. The new subdivision was named "Magnolia Manor," and is recorded at Plat Book 3, page 6, of the Public records of Leon County. On January 6, 1948, H. H. Wells and Susye Bell Wells sold all of Blocks F and G, and Lots 9, 10, and 11 in Block D, of the Magnolia Heights Addition of the Hays Division to the Glover Construction Company. On July 22, 1948, the Glover Construction sold its portion of Blocks D and F of the Magnolia Heights Addition of the Hays Division to Willie Mae Hampton. On November 1, 1963, Glover Construction Company sold a portion of Blocks D and F of the Magnolia Heights Addition of the Hays Division to Harlem J. Allen, Clyde P. Allen, Barnette W. Allen, and Sally Procter Allen. On February 13, 1964, Willie Mae Hampton sold her portion of Blocks D and F of the Magnolia Heights Addition of the Hays Division to Canal Timber Corporation. On December 2, 1964, Barnette W. Allen and Sally Procter Allen entered into an agreement to purchase that portion of Blocks D and F of the Magnolia Heights Addition of the Hays Division owned by the Canal Timber Corporation. On November 20, 1972, Canal Timber Corporation sold its portion of Blocks D and F of the Magnolia Heights Addition of the Hays Division to Grace H. Gibson. On December 26, 1974, Grace H. Gibson transferred her portion of Blocks D and F of the Magnolia Heights Addition of the Hays Division to Barnette W. Allen and Sally Procter Allen. On December 15, 1976, Barnette W. Allen and Sally Procter Allen acquired whatever property interests that Harlem J. Allen and Clyde P. Allen possessed by virtue of the acquisition that occurred on November 1, 1963. The City's Vested Rights Review Ordinance The City adopted its 2010 Comprehensive Plan on July 16, 1990. Concurrently with the adoption of its 2010 Comprehensive Plan, the City adopted its Vested Rights Review Ordinance, Ordinance No. 90-O-0043AA. This ordinance was codified as Article VII of Chapter 18 of the Code of Ordinances. Article VII (Sections 18-101 through 18-106) of the Tallahassee Code of Ordinances establishes the standards by which a property owner may demonstrate that private property rights have vested against the provisions of the 2010 Comprehensive Plan. Section 18-101 of the Code is a statement of intent in regard to the Vested Rights Ordinance, which reads: This article establishes the sole administrative procedures and standards by which a property owner may demonstrate that private property rights have vested against the provisions of the 2010 Comprehensive Plan. Said administrative procedures shall provide determinations of consistency of development with the densities and intensities set forth in the 2010 Comprehensive Plan and that development is not subject to the concurrency requirements of the 2010 Comprehensive Plan. The City established three categories for which property owners could apply to establish their vested rights to continue development of their property without complying with the consistency and concurrency requirements of the 2010 Comprehensive Plan. These categories are contained in Sections 18-104(1) and (2), Code of Ordinances. The three categories were denominated as "common-law vesting," "statutory vesting," and developments of regional impact, which were approved pursuant to Chapter 380, Florida Statutes. Pursuant to Section 18-103(2), property owners who contended that they had vested rights pursuant to one of these three categories were required to request a determination of vested rights by filing an application with the Planning Department within 120 calendar days of July 16, 1990. The failure to timely file an application for a vested rights determination within the prescribed time limits constituted a waiver of any vested rights claims. The city's Vested Rights Review Ordinance also expressly states that a property owner cannot receive vested rights based upon a zoning classification. In addition to the three categories for which property owners could apply to establish vested property rights, the City's Vested Rights Review Ordinance included a provision by which certain property owners were presumptively vested and, therefore, were not required to file an application for a vested rights determination. Section 18-103(1) reads, as follows: The following categories shall be presumptively vested for the purposes of consistency with the 2010 Comprehensive Plan and concurrency as specified in the 2010 Comprehensive Plan and shall not be required to file an application to preserve their vested rights status: All lots within a subdivision recorded as of July 16, 1990, or lots in approved subdivisions for which streets, stormwater management facilities, utilities, and other infrastructure required for the development have been completed as of July 16, 1990. The Tallahassee-Leon County Planning Department shall maintain a listing of such exempt subdivisions. All active and valid building permits issued prior to July 17, 1990. All technically complete building permit applications received by the building inspection department on or before July 2, 1990, and subsequently issued, shall be vested under the provisions of the 2010 Comprehensive Plan, regardless of date of issuance. Any structure on which construction has been completed and a certificate of occupancy issued if a certificate of occupancy was required at time of permitting. All lots of record as of July 1, 1984, not located within a subdivision, but only to the extent of one (1) single-family residence per lot. If a property qualifies as an exempt or vested property pursuant to the City's Vested Rights Review Ordinance, the property owner does not have to comply with the consistency and concurrency provisions of the City's 2010 Comprehensive Plan. Such properties are allowed to be developed pursuant to the 1971 zoning code that was in effect until the City's 2010 Comprehensive Plan was adopted. The City staff and DRC determined that the subject property was vested because it fulfilled the requirements of Section 18-103(1)(a)(1) as a lot "within a subdivision recorded as of July 16, 1990." The basis for this determination was that the property was located within the plat for the Magnolia Heights Addition of the Hays Division which was recorded in 1910. The plat does not contain any statements as to use or density, however. The subdivision, known as Magnolia Manor, plated in 1946, has its own separate subdivision number, and consists of a portion of property that was originally part of the Magnolia Heights Addition to the Hays Division. A small portion of the Allens' property is located within the Magnolia Manor subdivision. Although from 1948 to 1974, Blocks D and F were both divided and transferred in a manner differently than that depicted on the 1910 Plat, all conveyances of the property subject to the Site Plan have been by reference to the lot and block of Magnolia Heights Addition. Subsequent purchasers of the property conveyed the lots subject to the Site Plan to the Allens, and described the lots as part of the original subdivision rather than by any reference to "Magnolia Manor." The replatting of certain lots within the subdivision to create "Magnolia Manor" did not affect or otherwise change any of the property subject to the Site Plan. On August 20, 1990, the City determined that the Magnolia Heights Addition was an exempt subdivision pursuant to the provisions of Section 18-103(1)(a)(1) of City Code of Ordinances, and was placed on the Planning Department list of exempt subdivisions. As such, the subdivision was exempt from the consistency and concurrency requirements of the Comprehensive Plan. The subdivision is one of more than 300-350 subdivisions determined to be exempt as recorded subdivisions. The exemption was based upon the fact the project was located in a subdivision recorded as of July 16, 1990, and all infrastructure required for the subdivision and for development of the property was in place and complete as of that date. The City staff has been guided in its interpretation and application of the City's Vested Rights Review Ordinance by a memorandum dated August 27, 1990, written by then Assistant City Attorney John Systma. The August 27 memorandum states, in pertinent part, that: This memo is in response to your questions about the proper procedure to follow in determining if a subdivision recorded in 1906 should be declared exempt under the provisions of the Vested Rights Review Ordinance. The critical element that must exist for the subdivision to be exempt is that the current subdivision must be identical to the plat that was created when the subdivision was initially recorded. Any resubdivision, replatting or other changes made to the original recorded plat invalidates that plat. An excellent example of an invalid plat is the original plat recorded for the Pecan Endowment, which has subsequently been changed many times, thereby invalidating it. The subdivision was recorded as of July 16, 1990. The resubdivision of a part of an exempt recorded subdivision, which does not affect the property under review and subject to development approval, has never been the basis of denial of the recorded subdivision exemption provisions of the Vested Rights Ordinance. City staff have never denied the exemption or vesting based upon a replatting of other lots in a subdivision which were not included in the proposed exempt development. Respondents clearly established that such replatting has not been a basis for denial of the exemption by City staff in applying the Vested Rights Ordinance since its adoption in 1990. The development approvals for the Allenwoods Apartments are valid if it is determined that the project is exempt or vested under the Vested Rights Ordinance. The property, at the time of adoption of the 2010 Comprehensive Plan, was zoned RM-1, and allowed development of a multifamily project at the density approved for the Allens. The current zoning of the property is MR1 and would permit the development of the property as a multifamily project at the density approved for the Allens.
Recommendation Based on the foregoing findings of fact and conclusions of RECOMMENDED that the Planning Commission find that Respondents Allens' lots are vested for the purposes of consistency and concurrency with the 2010 Comprehensive Plan, and, it is further RECOMMENDED that the Planning Commission approve the Site Plan for the Allenwoods Apartment Project, as consistent with the requirements of Chapter 27, Article XXI, Section 21.4.G.8. of the Code of Ordinances. DONE AND ENTERED this 15th day of May, 1998, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 15th day of May, 1998. COPIES FURNISHED: Charles A. Francis, Esquire Francis & Sweet, P.A. Post Office Box 10551 Tallahassee, Florida 32302 David A. Theriaque, Esquire 909 East Park Avenue Tallahassee, Florida 32301 Linda R. Hurst Assistant City Attorney City Hall 300 South Adams Street Second Floor Tallahassee, Florida 32301 Mark Gumula Director of Planning Tallahassee-Leon County Planning Department 300 South Adams Street Tallahassee, Florida 32301 Jean Gregory Clerk of the Planning Commission Tallahassee-Leon County Planning Department 300 South Adams Street, City Hall Tallahassee, Florida 32301 Robert B. Inzer City Treasurer-Clerk 300 South Adams Street, City Hall Tallahassee, Florida 32301
The Issue The issue is whether respondent's license as a title insurance agent should be disciplined for the reasons cited in the administrative complaint filed on April 6, 1993.
Findings Of Fact Based upon all the evidence, the following findings of fact are determined: On November 30, 1992, respondent, John Samuel Soranno, signed and executed his application for licensure as a title insurance agent with petitioner, Department of Insurance and Treasurer (Department). In section 6 of the application, respondent was asked to disclose his record of employment for the last five years. Respondent indicated that he had been employed by Land Title Insurance of Citrus County, Inc. (Land Title) since March 7, 1982. In section 8 of the application, respondent was required to sign a notarized statement declaring himself eligible to qualify by prior experience for licensure with the Department. Respondent signed the notarized statement indicating he had been a "substantially full-time bona fide employee" of Land Title from March 7, 1982, to the time he signed the application. The application and a resume were later hand-delivered to Tallahassee, and Department records indicate the application was stamped as received on December 31, 1992. Relying on the representations in the application, the Department issued respondent a title insurance agent license on an undisclosed date in January 1993. On January 13, 1993, the president of Land Title, William J. Hudson, wrote the Department a letter in which he stated that: At no time has . . . John Soranno been employed as a substantially full-time bona fide employee of Land Title Insurance of Citrus County, Inc., or of William J. "Skip" Hudson. To my certain knowledge, neither . . . (has) John Soranno devoted full time to title insurance during the last five (5) years. Further, John Soranno has (not) performed the functions of preparation of title insurance policies, preparing closing statements and conducting closings, handling of escrow or trust funds including the disbursement of trust funds, preparation of documents or gained knowledge of title insurance work and office management in a title insurance office in the past five years. Hudson went on to recommend that the Department investigate respondent "for possible criminal violations". Acting on this advice, the Department conducted an investigation and later suspended respondent's license on an emergency basis. It also issued an administrative complaint charging respondent with violating various statutes on the ground he had made a material misrepresentation on his application. The license remains suspended pending the outcome of this proceeding. Respondent has been involved in the title insurance business for the last twenty-one years. He first worked for Citrus Title Company, Inc. from March 15, 1973, through September 15, 1975, as a title researcher. Beginning in October 1975, he worked with Coastal Bonded Title Company, Inc., first as assistant manager and then as manager of the Crystal River office. His main responsibilities were performing title searches and examinations, issuing commitment letters, handling closings, and making escrow disbursements. From August 1, 1977, through January 22, 1982, respondent was employed by Crystal River Title Company in Inverness. In that job, he was responsible for conducting title searches and examinations. In early 1982, Hudson approached respondent and asked him to work for Land Title to perform title searches and examinations. Because Hudson did not want to incur the additional costs associated with hiring an "employee", he hired respondent as an independent contractor. Respondent was also required to execute a contract with Hudson whereby he agreed to work exclusively for Land Title. As compensation, respondent received a flat fee for a base title search and a larger fee for those cases requiring a full search. Respondent began employment with Land Title under this arrangement on March 7, 1982. For tax purposes, respondent created a Subchapter S corporation named JOKAR, Inc. and had his paychecks from Land Title made payable to his corporation. Respondent did not work in the offices of Land Title. Instead, he worked at the county courthouse in Inverness and in his home. Under a special arrangement with courthouse personnel, he typically began work each morning (Monday through Friday) at 7:30 a.m. in the courthouse (before it officially opened for business each day) searching through courthouse records. Depending on his workload, which averaged between five and seven files per day, respondent left the courthouse anywhere between 12:30 p.m. and 2:00 p.m. and returned to his home where he spent time on the telephone with underwriters, attorneys or Land Title employees regarding title and underwriting problems and language to be used in closing documents. He also prepared written reports for Land Title, and he spent several hours reviewing the files for the next day's work. At 6:00 p.m. each workday, a Land Title employee came by his house and picked up his day's work and dropped off new files. Based upon the amount of time respondent devoted to his job, which averaged more than eight hours each work day, it is found that respondent worked "full-time" for Land Title. As a part of respondent's job responsibilities, he was required to speak with underwriters on a recurring basis to resolve various underwriting problems which arose as a result of his research. It was generally accepted that respondent was the most experienced and competent Land Title employee with regard to title searches, examinations and underwriting. Indeed, respondent did the title search and underwriting on well over 10,000 files while employed with that firm. During his tenure with Land Title, respondent was covered under the same health insurance policy as other Land Title employees, and he made various claims under his policy. Although Hudson denied that respondent was an employee of his firm, it is found that from March 1982 until January 1993, respondent was a bona fide, full-time employee of Land Title. In late 1988, Scott Lyons was hired as an employee by Land Title. He was later elected a vice-president of the corporation by its board of directors and assumed the role of manager of the Crystal River office. Although Hudson denied Lyons had any authority as a corporate officer, it is found that Hudson did not place any limitation on Lyons' authority and he was a bona fide officer of the corporation. In the fall of 1992, Lyons began considering the possibility of opening his own title company in Citrus County and approached respondent about joining such a venture. Although respondent gave Lyons no assurance that he would work with him, respondent considered this possibility. On December 4, 1992, Lyons told Hudson of his plans to start a new title company named Nature Coast Title Company, Inc. Immensely displeasured at the thought of competition, Hudson immediately fired Lyons effective that date. Because Hudson thought that respondent might also be intending to leave the firm, he initially decided to terminate respondent. After learning that respondent had no firm commitment with Lyons, Hudson changed his mind. In early January 1993, Hudson made a new and more lucrative job offer to keep respondent on his payroll but withdrew it a short time later. On January 21, 1993, Hudson learned that respondent had accepted Lyons' offer to join the new title company and severed respondent's relationship with Land Title that day. It may be reasonably inferred from the evidence that Hudson's motivation in sending the complaint letter to the Department was his desire to eliminate competition rather than having the law enforced. In 1992, the legislature enacted Chapter 92-318, Laws of Florida, which provided, among other things, for the licensure by the Department of title insurance agents. The law stipulated that those "who had been actively engaged with responsible duties in the title insurance business in the state for 5 consecutive years before the date of application for examination" would not have to take an examination for a license if an application for licensure was filed with the Department no later than March 31, 1993. Respondent decided to "protect his career" and apply for licensure under the grandfather provisions of the law. Accordingly, on November 30, 1992, respondent had a friend type his application for licensure. The application form required those who sought to qualify for licensure by experience to have their employer verify that the applicant had been working as a "substantially full-time, bona fide employee" during the time indicated. Because no other officers of Land Title were in the office at the time respondent sought to obtain written verification of his employment history, respondent got Lyons, as a corporate officer of Land Title, to acknowledge that he was a "bona fide full-time employee" of Land Title from March 1982 until that date. Although Lyons had worked at Land Title only since late 1988, he had knowledge that respondent had been employed full-time by Land Title since March 1982 and he was aware of respondent's job responsibilities during that period of time. Respondent was described by the district manager of a large title insurance underwriter as being "very knowledgeable" in the area of underwriting. Also, based upon his dealings with respondent over the last eight years, he rated respondent as "very high" in the area of title searching and examination. A co-worker at Land Title since 1985 also considered respondent to be "very knowledgeable" in the business, pointed out that Hudson had given her instructions to call respondent on any questions regarding document preparation, and was under the impression respondent was a full-time employee of Land Title. Respondent's representation on the application regarding his employment history was not false. Rather, he worked full-time as a bona fide employee of Land Title from March 1982 to January 1993. By virtue of his experience over the last twenty-one years, he is qualified for licensure as a title insurance agent.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered dismissing the administrative complaint with prejudice, vacating the emergency order of suspension, and reinstating respondent's license as a title insurance agent. DONE AND ENTERED this 14th day of June, 1993, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of June, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2244 Petitioner: 1-3. Partially accepted in finding of fact 1. 4. Partially accepted in finding of fact 10. 5-6. Partially accepted in finding of fact 1. Rejected as being contrary to the evidence. Partially accepted in finding of fact 1. The last sentence has been rejected as being contrary to the evidence. Respondent: Partially accepted in finding of fact 7. 1a-b. Partially accepted in finding of fact 5. 1c. Partially accepted in finding of fact 7. Partially accepted in finding of fact 7. 2a. Rejected as being unnecessary. 2b-c. Partially accepted in finding of fact 5. 2d. Partially accepted in finding of fact 4. 3a-b. Partially accepted in finding of fact 8. 4. Partially accepted in finding of fact 10. 5-6a. Partially accepted in finding of fact 3. Note - Where a proposed finding has been partially accepted, the remainder has been rejected as being unnecessary, irrelevant, subordinate, not supported by the more credible and persuasive evidence, or a conclusion of law. COPIES FURNISHED: Honorable Tom Gallagher Insurance Commissioner The Capitol, Plaza Level Tallahassee, FL 32399-0300 Bill O'Neil, Esquire Department of Insurance The Capitol, PL-11 Tallahassee, FL 32399-0300 Joseph D. Mandt, Esquire 612 Larson Building Tallahassee, FL 32399-0300 James F. Spindler, Jr., Esquire 3858 North Citrus Avenue Crystal River, FL 34428
The Issue The issue is whether Petitioners' Motions for Attorney's Fees should be granted, and if so, in what amount.
Findings Of Fact Based upon the stipulation of counsel, the papers filed herein, and the underlying record made a part of this proceeding, the following findings of fact are determined: Background In this attorney's fees dispute, Petitioners, Anderson Columbia Company, Inc. (Anderson Columbia) (Case No. 00-0754F), Panhandle Land & Timber Company, Inc. (Panhandle Land) (Case No. 00-0755F), Support Terminals Operating Partnership, L.P. (Support Terminals) (Case No. 00-0756F), Commodores Point Terminal Corporation (Commodores Point) (Case No. 00-0757F), and Olan B. Ward, Sr., Martha P. Ward, Anthony Taranto, Antoinette Taranto, J.V. Gander Distributors, Inc., J.V. Gander, Jr., and Three Rivers Properties, Inc. (the Ward group) (Case No. 00-0828F), have requested the award of attorney's fees and costs incurred in successfully challenging proposed Rule 18-21.019(1), Florida Administrative Code, a rule administered by Respondent, Board of Trustees of the Internal Improvement Trust Fund (Board). In general terms, the proposed rule essentially authorized the Board, through the use of a qualified disclaimer, to reclaim sovereign submerged lands which had previously been conveyed to the upland owners by virtue of their having filled in, bulkheaded, or permanently improved the submerged lands. The underlying actions were assigned Case Nos. 98- 1764RP, 98-1866RP, 98-2045RP, and 98-2046RP, and an evidentiary hearing on the rule challenge was held on May 21, 1998. That proceeding culminated in the issuance of a Final Order in Support Terminals Operating Partnership, L.P. et al. v. Board of Trustees of the Internal Improvement Trust Fund, 21 F.A.L.R. 3844 (Div. Admin. Hrngs., Aug. 8, 1998), which determined that, except for one challenged provision, the proposed rule was valid. Thereafter, in the case of Anderson Columbia Company, Inc. et al. v. Board of Trustees of the Internal Improvement Trust Fund, 748 So. 2d 1061 (Fla. 1st DCA 1999), the court reversed the order below and determined that the rule was an invalid exercise of delegated legislative authority. Petitioners then filed their motions. Fees and Costs There are eleven Petitioners seeking reimbursement of fees and costs. In its motion, Anderson Columbia seeks reimbursement of attorney's fees "up to the $15,000 cap allowed by statute" while Panhandle Land seeks identical relief. In their similarly worded motions, Support Terminals and Commodores Point each seek fees "up to the $15,000 cap allowed by statute." Finally, the Ward group collectively seeks $9,117.00 in attorney's fees and $139.77 in costs. In the Joint Stipulations of Fact filed by the parties, the Board has agreed that the rate and hours for all Petitioners "were reasonable." As to all Petitioners except the Ward group, the Board has further agreed that each of their costs to challenge the rule exceeded $15,000.00. It has also agreed that even though they were not contained in the motions, requests for costs by Support Terminals, Commodores Point, Anderson Columbia, and Panhandle Land in the amounts of $1,143.22, $1,143.22, $1,933.07, and $1,933.07, respectively, were "reasonable." Finally, the Board has agreed that the request for costs by the Ward group in the amount of $139.77 is "reasonable." Despite the stipulation, and in the event it does not prevail on the merits of these cases, the Board contends that the four claimants in Case Nos. 00-754F, 00-755F, 00-0756F, and 00- 757F should be reimbursed only on a per case basis, and not per client, or $7,500.00 apiece, on the theory that they were sharing counsel, and the discrepancy between the amount of fees requested by the Ward group (made up of seven Petitioners) and the higher fees requested by the other Petitioners "is difficult to understand and justify." If this theory is accepted, it would mean that Support Terminals and Commodores Point would share a single $15,000.00 fee, while Anderson Columbia and Panhandle Land would do the same. Support Terminals and Commodores Point were unrelated clients who happened to choose the same counsel; they were not a "shared venture." Each brought a different perspective to the case since Commodores Point had already received a disclaimer with no reversionary interest while Support Terminals received one with a reversionary interest on June 26, 1997. The latter event ultimately precipitated this matter and led to the proposed rulemaking. Likewise, in the case of Anderson Columbia and Panhandle Land, one was a landowner while the other was a tenant, and they also happened to choose the same attorney to represent them. For the sake of convenience and economy, the underlying cases were consolidated and the matters joined for hearing. Substantial Justification From a factual basis, the Board contends several factors should be taken into account in determining whether it was substantially justified in proposing the challenged rule. First, the Board points out that its members are mainly lay persons, and they relied in good faith on the legal advice of the Board's staff and remarks made by the Attorney General during the course of the meeting at which the Board issued a disclaimer to Support Terminals. Therefore, the Board argues that it should be insulated from liability since it was relying on the advice of counsel. If this were true, though, an agency that relied on legal advice could never be held responsible for a decision which lacked substantial justification. The Board also relies upon the fact that it has a constitutional duty to protect the sovereign lands held in the public trust for the use and benefit of the public. Because lands may be disclaimed under the Butler Act only if they fully meet the requirements of the grant, and these questions involve complex policy considerations, the Board argues that the complexity and difficulty of this task militate against an award of fees. While its mission is indisputably important, however, the Board is no different than other state agencies who likewise are charged with the protection of the health, safety, and welfare of the citizens. The Board further relies on the fact that the rule was never intended to affect title to Petitioners' lands, and all Petitioners had legal recourse to file a suit to quiet title in circuit court. As the appellate court noted, however, the effect of the rule was direct and immediate, and through the issuance of a disclaimer with the objectionable language, it created a reversionary interest in the State and made private lands subject to public use. During the final hearing in the underlying proceedings, the then Director of State Lands vigorously supported the proposed rule as being in the best interests of the State and consistent with the "inalienable" Public Trust. However, he was unaware of any Florida court decision which supported the Board's views, and he could cite no specific statutory guidance for the Board's actions. The Director also acknowledged that the statutory authority for the rule (Section 253.129, Florida Statutes) simply directed the Board to issue disclaimers, and it made no mention of the right of the Board to reclaim submerged lands through the issuance of a qualified disclaimer. In short, while the Board could articulate a theory for its rule, it had very little, if any, basis in Florida statutory or common law or judicial precedent to support that theory. Although Board counsel has ably argued that the law on the Butler Act was archaic, confusing, and conflicting in many respects, the rule challenge case ultimately turned on a single issue, that is, whether the Riparian Rights Act of 1856 and the Butler Act of 1921 granted to upland or riparian owners fee simple title to the adjacent submerged lands which were filled in, bulkheaded, or permanently improved. In other words, the ultimate issue was whether the Board's position was "inconsistent with the . . . the concept of fee simple title." Anderson Columbia at 1066. On this issue, the court held that the State could not through rulemaking "seek to reserve ownership interests by issuing less than an unqualified or unconditional disclaimer to riparian lands which meet the statutory requirements." Id. at 1067. Thus, with no supporting case law or precedent to support its view on that point, there was little room for confusion or doubt on the part of the Board. E. Special Circumstances In terms of special circumstances that would make an award of fees unjust, the Board first contends that the proposed rule was never intended to "harm anyone," and that none of Petitioners were actually harmed. But the substantial interests of each Petitioner were clearly affected by the proposed rules, and the appellate court concluded that the rule would result in an unconstitutional forfeiture of property. The Board also contends that because it must make proprietary decisions affecting the public trust, it should be given wide latitude in rulemaking. It further points out that the Board must engage in the difficult task of balancing the interests of the public with private rights, and that when it infringes on the private rights of others, as it did here, it should not be penalized for erring on the side of the public. As previously noted, however, all state agencies have worthy governmental responsibilities, but this in itself does not insulate an agency from sanctions. As an additional special circumstance, the Board points out that many of the provisions within the proposed rule were not challenged and were therefore valid. In this case, several subsections were admittedly unchallenged, but the offending provisions which form the crux of the rule were invalidated. Finally, the Board reasons that any moneys paid in fees and costs will diminish the amount of money to be spent on public lands. It is unlikely, however, that any state agency has funds set aside for the payment of attorney's fees and costs under Section 120.595(2), Florida Statutes (1999).
The Issue Whether Petitioner, K. S. Ravines Corporation, has demonstrated, pursuant to the Vested Rights Review Process of Clay County, Florida, that a vested rights certificate to undertake development of certain real property located in Clay County should be issued by Clay County, notwithstanding the fact that part of such development will not be in accordance with the requirements of the Clay County 2001 Comprehensive Plan?
Findings Of Fact The Property. The Applicant, K. S. Ravines Corporation, is the owner of real property located in Middleburg, Clay County, Florida. The Applicant's property, known as the "The Ravines," is being developed as a 435-acre residential and golf course development. Development of the Property; Government Action Relied upon by Silver Sands. On or about June 1, 1990, the Applicant entered into a Purchase and Sale Agreement agreeing to purchase The Ravines. Subsequent to the execution of the Purchase and Sale Agreement, the Applicant pursued a due diligence effort. In particular, the Applicant contacted Clay County to confirm that The Ravines had been zoned as a Planned Unit Developed as represented by the seller of The Ravines. The Applicant also sought to confirm that the property possessed the development capabilities associated with the zoning. In response to the Applicant's inquiries, Keith I. Hadden, then Director of Development for Clay County, informed the Applicant of the following in a letter dated August 7, 1990: The property commonly known as The Ravines, as shown on that certain map of J. M. Ard & Associates, Inc., dated May 30, 1990, (Job No. 3751B), together with a parcel commonly referred to as the McCumber Contracting Parcel as shown on said map, and the access road from County Road 218 to the main property of The Ravines commonly known as Ravines Road (all hereinafter "The Ravines") is currently zoned "PUD" Planned Unit Development. . . . Mr. Hadden also confirmed that The Ravines was approved for development of 261 single family lots, 49 condominiums, 107 hotel units, and 60 patio homes; a total of 477 units. Silver Sands' Detrimental Reliance. In reliance upon Mr. Hadden's representations as Clay County Director of Planning, the Applicant purchased The Ravines for $10,709,423.00. At the time of the purchase the golf course was valued at $6,900,000.00. The Applicant purchased 168 single-family lots (44 developed and 124 undeveloped) and 60 undeveloped patio home lots. The undeveloped lots and the existing developed single- family lots purchased by the Applicant were valued at $3,943,000.00. The Applicant also spent $495,115.00 to make capital improvements to The Ravines after it purchased The Ravines. Rights that will be Destroyed. In January 1992 Clay County adopted a comprehensive plan pursuant to Part II, Chapter 163, Florida Statutes. The Ravines was designated with a land use designation in the plan of "Rural Residential." The "Rural Residential" land use classification of the Clay County Comprehensive Plan allows development of one residential unit per one acre of land. As a result, The Ravines may be developed at a total of 435 units instead of the 477 units that Clay County informed the Applicant The Ravines could be developed for in the August 7, 1990, letter from Mr. Hadden. As a result of the "Rural Residential" land use classification, the total developable lots at The Ravines would be reduced from 228 lots to 186 lots, or a reduction of 42 lots. This reduction represents a reduction of 18.4% of the total lots purchased by the Applicant. It is possible that this reduction could result in an 18.4% loss of the $3,943,000.00 paid for the lots, or approximately $496,000.00. Procedural Requirements. The parties stipulated that the procedural requirements of Vested Rights Review Process of Clay County, adopted by Clay County Ordinance 92-18, as amended, have been met.
Findings Of Fact Based upon all of the evidence, including the pleadings and attachments thereto, the following findings of fact are determined: Background This case involves a challenge by petitioner, William Markham, as Broward County Property Appraiser, to the validity of proposed rule 12D-8.0062, Florida Administrative Code. The rule is being proposed for adoption by respondent, Department of Revenue (DOR). That agency has the statutory responsibility of supervising the assessment and valuation of property and approving each assessment roll submitted by the county property appraisers. By law, all property is to be valued as of January 1 for the tax year in question. Unless DOR grants an extension for good cause, the property appraiser is required to complete the assessment roll by the following July 1 and submit it to DOR for approval on or before that date. The DOR executive director then approves or disapproves the rolls, in whole or in part. Roll approval is predicated upon substantial compliance with the requirements of the law relating to the form of the roll and just value, and upon full compliance with any administrative orders issued by DOR. The proposed rule codifies standards and establishes procedures relating to the assessed value of homestead property on the tax roll from year to year. On November 3, 1992, the voters approved an amendment to Article VII, Section 4(c) of the Florida Constitution. The amendment was described as follows in the ballot summary: Homestead Valuation Limitation Providing for limiting increases in homestead property valuations for ad valorem tax purposes to a maximum of 3 percent annually and also providing for reassessment of market values upon changes in ownership. As approved by the electorate, section 4(c) reads as follows: All persons entitled to a homestead exemption under Section 6 of this Article shall have their homestead assessed at just value as of January 1 of the year following the effective date of this amendment. This assessment shall change only as provided herein. Assessments subject to this provision shall be changed annually on January 1st of each year; but those changes in assessments shall not exceed the lower of the following: three percent (3 percent) of the assessment for the prior year. the percent change in the Consumer Price Index for all urban consumers, U. S. City Average, all items 1967 = 100, or successor reports for the preceding calendar year as initially reported by the United States Department of Labor, Bureau of Labor Statistics. No assessment shall exceed just value. After any change of ownership, as provided by general law, homestead property shall be asses- sed at just value as of January 1 of the following year. Thereafter the homestead shall be assessed as provided herein. New homestead property shall be assessed at just value as of January 1st of the year following the establishment of the homestead. That assessment shall only change as provided herein. Changes, additions, reductions or improve- ments to homestead property shall be assessed as provided for by general law; provided, however, after the adjustment for any change, addition, reduction or improvement, the property shall be assessed as provided herein. In the event of a termination of homestead status, the property shall be assessed as provided by general law. The provisions of this amendment are severable. If any of the provisions of this amendment shall be held unconstitutional by any court of competent jurisdiction, the decision of such court shall not affect or impair any remaining provisions of this amendment. The new amendment generally requires that all homestead property be assessed at just value on January 1 following the effective date of the amendment. Thereafter, the assessed value is to be increased by 3 percent or the change in the Consumer Price Index (CPI) percentage, whichever is lower, not to exceed just value. If there is a change in ownership, however, the amendment requires that the property be assessed at its just value on the following January 1. Subsequently, and until the next change in ownership, the limitation will apply. At the same time, when changes, additions, reductions or improvements to homestead property occur, the value of such changes will be assessed as provided by general law. After this adjustment is made, the assessment on the property as a whole is subject to the annual limitations. In 1994, the legislature implemented the new amendment by enacting Section 193.155, Florida Statutes. The relevant portion of the new statute reads as follows: 193.155 Homestead Assessments. - Homestead property shall be assessed at just value as of January 1, 1994. Property receiving the homestead exemption after January 1, 1994, shall be assessed at just value as of January 1 of the year in which the property receives the exemption. Thereafter, determination of the assessed property is subject to the following provisions: Beginning in 1995, or the year following the year the property receives homestead exemption, whichever is later, the property shall be reassessed annually on January 1. Any change resulting from such reassessment shall not exceed the lower of the following: Three percent of the assessed value of the property for the prior year; or The percentage change in the Consumer Price Index for All Urban Consumers, U. S. City Average, all items 1967 = 100, or successor reports for the preceding calendar year as initially reported by the United States Department of Labor, Bureau of Labor Statistics. * * * As can be seen, the statute mirrors the constitu- tional amendment. In response to this legislation, on March 3, 1995, DOR published in the Florida Administrative Weekly a notice of its intent to adopt new Rule 12D- 8.0062, Florida Administrative Code. A public hearing on the proposed rule was held on March 31, 1995. Based on oral and written comments received at that hearing, on April 10, 1995, DOR gave notice of its intent to change the rule in certain respects. As modified by these changes, the proposed rule in its entirety reads as follows: 12D-8.0062 Assessments; Homestead; Limitations. This rule shall govern the determination of the assessed value of property subject to the homestead assessment limitation under Article VII, Section 4(c), Florida Constitution and section 193.155, F. S., except as provided in rules 12D-8.0061, 12-8.0063, and 12D-8.0064, relating to changes, additions or improvements, changes of ownership, and corrections. Just value is the standard for assessment of homestead property, subject to the provisions of Article VII, Section 4(c), Florida Constitution. Therefore, the property appraiser is required to determine the just value of each individual home- stead property on January 1 of each year as provided in section 193.011, F. S. Unless subsections (5) and (6) of this rule require a lower assessment, the assessed value shall be equal to the just value as determined under subsection (2) of this rule. The assessed value of each individual home- stead property shall change annually, but shall not exceed just value. Where the current just value of an individual property exceeds the prior year assessed value, the property appraiser is required to increase the prior year's assessed value by the lower of: Three percent; or The percentage change in the Consumer Price Index (CPI) for all urban consumers, U. S. City Average, all items 1967 = 100, or successor reports for the preceding calendar year as initially reported by the United States Department of Labor, Bureau of Labor Statistics. If the percentage change in the Consumer Price Index (CPI) referenced in paragraph (5)(b) is negative, then the assessed value shall be the prior year's assessed value decreased by that percentage. The assessed value of an individual homestead property shall not exceed just value. Sections 195.027(1) and 213.06(1), Florida Statutes, are cited as the specific authority for adopting the new rule. The former statute requires that DOR adopt "such rules and regulations (to ensure) that property will be assessed, taxes will be collected, and the administration will be uniform, just, and otherwise in compliance with the requirements of the general law and the constitution." Sections 193.011, 193.023, 193.155, 196.031 and 213.05, Florida Statutes, are given as the law implemented. It is clear, however, that section 193.155 is the principal law being implemented. As clarified at hearing, petitioner does not challenge subsections (1) through (4) and (7) of the proposed rule. Rather, he alleges that subsection of the rule is arbitrary and capricious and conflicts with the law implemented. He also contends that subsection (6) is vague. Finally, he contends that subsection (5) conflicts with Article VII, Section 4(c) of the Florida Constitution. Statutory Grounds Concerning Subsection (5) To avoid being found arbitrary and capricious, the proposed rule must be supported by facts and logic and adopted with thought and reason. Aside from argument of petitioner's counsel, there is no evidence to support the notion that the rule lacks a factual and logical underpinning or is not rational. Indeed, because subsection (5) of the rule simply tracks the provisions found in the law implemented, that is, Sections 193.155(1)(a) and (b), Florida Statutes, it cannot be arbitrary and capricious. At the same time, by parroting the statutory language, subsection (5) comports with the law implemented. Accordingly, subsection (5) of the rule is deemed to be a valid exercise of delegated legislative authority. Is Subsection (6) of the Rule Vague? Subsection (6) of the rule reads as follows: If the percentage change in the Consumer Price Index (CPI) referenced in paragraph (5)(b) is negative, then the assessed value shall be the prior year's assessed value decreased by that percentage. Through argument of counsel, petitioner contends that the foregoing provision is "badly worded" and that "a reasonable man can(not) read . . . that rule, and know what it means." The language in the rule is plain and unambiguous. It indicates that if the percentage change in the CPI is negative, then the prior year's assessed value would be decreased. Indeed, the clarity of this language becomes even more evident when reading subsections (5) and (6) together. Subsection (5) requires an increase to the prior year's assessed value in a year where the CPI is greater than zero. Conversely, subsection (6) spells out the requirements when the CPI is negative. This is exactly the result required by the statute and Constitution in the event of a negative percentage change in the CPI. Accordingly, the contention that the rule is impermissibly vague is deemed to be without merit. Does Subsection (5) Conflict with the Constitution? Finally, petitioner contends that subsection (5) conflicts with Article VII, Section 4(c) of the Florida Constitution. More specifically, he argues that the rule conflicts with the "intent" of the framers of the ballot initiative, and that a third limitation relating to market value or movement, and not contained in the amendment itself, or even in the ballot summary, should be incorporated into the language of the rule in order to make it compatible with the constitution. He agrees, however, that subsection (5), as now written, does not conflict with the actual language found in the amendment. To be constitutionally infirm in the context of petitioner's challenge, subsection (5) would have to contain provisions which depart from the language in the amendment. Because the subsection essentially tracks the language in Section 193.155, Florida Statutes, which in turn tracks the language of the amendment, it is found that the rule does not conflict with the constitution.
Findings Of Fact The Subject Property. The property at issue in this proceeding consists of approximately 205 acres of land located in Clay County, Florida. The subject property is known as "Station Pond (Oak Forest Extension)." Station Pond was subdivided into 40 lots by an unrecorded subdivision plat. The lots range in size from approximately three to fifteen or twenty acres. Roads, which are unpaved, surrounding Station Pond, and drainage for Station Pond, are privately owned. The roads and drainage were completed prior to December of 1978. A boundary survey of Station Pond was prepared and contains a surveyor's certification of January 8, 1980. Pre-1985 Subdivision Regulations of Clay County. Prior to September of 1985 Clay County did not require platting of subdivisions such as Station Pond. In September of 1985, Clay County adopted Ordinance 85-68 creating three types of subdivisions and providing for the regulation thereof. An exception to these requirements, however, was included in Ordinance 85-68: subdivisions shown on a certified survey prior to September of 1985 with lots and roads laid out would continue to not be subject to regulation so long as the lots continue to comport with the survey. Government Action Relied Upon Before the Applicant's Sale of the Property. The Applicant was aware that it could develop Station Pond as an unrecorded subdivision in Clay County. The development of Station Pond comes within the exception to Ordinance 85-58. In a letter dated December 15, 1978 the Clay County Director of Planning and Zoning informed the Applicant that Oak Forest Clay County would "issue building permits in accordance with the uses permitted and lot/building requirements for an Agricultural zoned district, and in accordance with all other local ordinance provisions, state statutes, etc., as enclosed." This representation was based upon the conclusion of Clay County that Oak Forest was not subject to Clay County subdivision ordinances. Similar conclusions were reached by the Clay County Health Department in a letter dated September 8, 1978, and by the Clay County Public Works Director in a letter dated December 18, 1978. The Applicant's Detrimental Reliance. The Applicant's predecessor corporation provided dirt roads around part of Station Pond. The roads were constructed prior to December of 1978. The costs of the roads incurred by the Applicant was approximately $15,000.00. Rights That Will Be Destroyed. If the Applicant must comply with the Clay County comprehensive plan it will be required to pave the roads of the subdivision and provide an approximately 3 mile long paved access road. Procedural Requirements. The parties stipulated that the procedural requirements of Vested Rights Review Process of Clay County, adopted by Clay County Ordinance 92-18, as amended, have been met.
