Findings Of Fact The Subject Property. The property at issue in this proceeding consists of approximately 205 acres of land located in Clay County, Florida. The subject property is known as "Station Pond (Oak Forest Extension)." Station Pond was subdivided into 40 lots by an unrecorded subdivision plat. The lots range in size from approximately three to fifteen or twenty acres. Roads, which are unpaved, surrounding Station Pond, and drainage for Station Pond, are privately owned. The roads and drainage were completed prior to December of 1978. A boundary survey of Station Pond was prepared and contains a surveyor's certification of January 8, 1980. Pre-1985 Subdivision Regulations of Clay County. Prior to September of 1985 Clay County did not require platting of subdivisions such as Station Pond. In September of 1985, Clay County adopted Ordinance 85-68 creating three types of subdivisions and providing for the regulation thereof. An exception to these requirements, however, was included in Ordinance 85-68: subdivisions shown on a certified survey prior to September of 1985 with lots and roads laid out would continue to not be subject to regulation so long as the lots continue to comport with the survey. Government Action Relied Upon Before the Applicant's Sale of the Property. The Applicant was aware that it could develop Station Pond as an unrecorded subdivision in Clay County. The development of Station Pond comes within the exception to Ordinance 85-58. In a letter dated December 15, 1978 the Clay County Director of Planning and Zoning informed the Applicant that Oak Forest Clay County would "issue building permits in accordance with the uses permitted and lot/building requirements for an Agricultural zoned district, and in accordance with all other local ordinance provisions, state statutes, etc., as enclosed." This representation was based upon the conclusion of Clay County that Oak Forest was not subject to Clay County subdivision ordinances. Similar conclusions were reached by the Clay County Health Department in a letter dated September 8, 1978, and by the Clay County Public Works Director in a letter dated December 18, 1978. The Applicant's Detrimental Reliance. The Applicant's predecessor corporation provided dirt roads around part of Station Pond. The roads were constructed prior to December of 1978. The costs of the roads incurred by the Applicant was approximately $15,000.00. Rights That Will Be Destroyed. If the Applicant must comply with the Clay County comprehensive plan it will be required to pave the roads of the subdivision and provide an approximately 3 mile long paved access road. Procedural Requirements. The parties stipulated that the procedural requirements of Vested Rights Review Process of Clay County, adopted by Clay County Ordinance 92-18, as amended, have been met.
The Issue The issue in these cases is whether certain proposed amendments to Rule 18-21.019(1), Florida Administrative Code, are an invalid exercise of delegated legislative authority, as alleged by Petitioners.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background The parties Petitioner in Case No. 98-1764RP, Support Terminals Operating Partership, L.P. (Support Terminals), a Delaware limited partnership, is the fee owner of a parcel of permanently improved submerged lands lying beneath a large commercial pier on the St. Johns River located at 6531 Evergreen Avenue, Jacksonville, Florida. On May 28, 1997, Respondent, Board of Trustees of the Internal Improvement Trust Fund (Board), issued a disclaimer of title to those lands for the footprint of its pier subject, however, to the State's right to reclaim the lands in the event certain conditions occurred. Petitioner in Case No. 98-1866RP, Commodores Point Terminal Corporation (Commodores Point), owns a marine terminal at 1010 East Adams Street, Jacksonville, Florida. Commodores Point holds two disclaimers of title for submerged lands associated with the terminal which were formerly vested in the State. These disclaimers, numbered as 28042 and 28291, were issued on January 25, 1988, and January 23, 1990, respectively. The first disclaimer was for lands which were filled during the term of the Butler Act prior to its repeal in 1957. The second disclaimer was issued for dredged lands immediately adjacent to the bulkheaded upland. The interest asserted by the Board in its proposed rule would extend to the lands covered by the two disclaimers. Petitioners in Case No. 98-2045RP, Olan B. Ward, Sr.; Martha P. Ward; Anthony Taranto; Antoinette Taranto; J.V. Gander Distributors, Inc.; J.V. Gander, Jr.; and Three Rivers Properties, Inc., are the owners of certain permanent dock and pier improvements in Franklin County, Florida, made during the term of the Butler Act. As of February 12, 1998, all of these challengers had requests for disclaimers pending before the Board. Petitioner in Case No. 98-2046RP, Anderson Columbia Company, Inc. (Anderson Columbia), is a Florida corporation engaged in the business of building and maintaining roadways. It operates an asphalt plant on property which fronts on Pond Creek, a navigable waterway in Bagdad, Santa Rosa County, Florida. The plant is located on property owned by the other Petitioner in Case No. 98-2046RP, Panhandle Land & Timber Company, Inc., a Florida corporation which has leased the property to Anderson Columbia. Prior to 1957, the predecessor-in-title to the property made numerous improvements to the shoreline to facilitate use of the waterway as an area to receive and ship goods through waterborne commerce. The record suggests that some of the improvements made by the original owners may no longer exist, and thus the present owners would be directly affected by the new rules. The Board is a collegial body consisting of the Governor and the Cabinet of the State of Florida. It is charged with the responsibility of serving as trustee of all sovereign lands in the State of Florida for the citizens of the state. Standing The parties have stipulated that, for purposes of these proceedings alone, all Petitioners are substantially affected by the amendments to Rule 18-21.019(1), Florida Administrative Code, and thus they have standing to initiate these cases. Preliminary events On February 14, 1998, the Board published notice in the Florida Administrative Weekly of its intention to make certain revisions to Rule 18-21.019, Florida Administrative Code. The new rule will have the lengthy title of "Applications, Standards and Criteria, and Forms for Disclaimers, Quitclaim Deeds, or Certificates to Clear Title to Filled Formerly Sovereignty Lands and for Disclaimers for Lands Lost Due to Avulsion or Quitclaim Deeds to Reclaim Lands Lost Due to Artificial Erosion or Artificial Erosion and Avulsion." The proposed text of the rule, as slightly modified from the initial proposal, was later published on April 10, 1998, and a public hearing was held by the Board on May 5, 1998. The filing of the rule with the Department of State has been abated pending the outcome of these proceedings. Among other things, the proposed amendments to Subsection (1) of the rule would generally create new standards, criteria, and forms for applications by property owners for a disclaimer to confirm title of formerly submerged sovereignty lands filled in, bulkheaded, or permanently improved prior to May 29, 1951, or prior to June 11, 1957, in Dade and Palm Beach Counties, and on nontidal navigable streams. Contending that some of the proposed rule amendments and a form are an invalid exercise of delegated legislative authority on a number of statutory grounds, Petitioners filed their petitions on April 15, 17, and 30, and May 1, 1998. The petitions, as later modified slightly by the parties' stipulation, raise identical grounds and first allege that the Board has exceeded its grant of rulemaking authority by proposing to adopt new Rules 18-21.019(1)(c)1.c., 2., 3., 6., 10., and 11., and Form No. 63-035(16). They also allege that the same rules and form enlarge, modify, or contravene the specific provisions of the law being implemented, and they are arbitrary and capricious. They further contend that proposed Rules 18- 21.019(1)(c)1.c., 2., 3., 6., and 10., and Form No. 63-035(16) are invalid because they are vague, fail to contain adequate standards for agency decisions, or vest unbridled discretion in the Board. Finally, the challengers allege that proposed Rules 18-21.019(1)(c)1.c. and 3. and Form No. 63-035(16) are not supported by competent, substantial evidence. There are no assertions that the rules are unconstitutional. As a corollary to these claims and in the event they prevail on any issue, all Petitioners have requested attorney’s fees and costs under Section 120.595(2), Florida Statutes, on the theory the Board’s actions were not substantially justified and there are no special circumstances which would make an award to Petitioners unjust. The Proposed Rules Generally A brief historical overview When Florida attained statehood in 1845, it became the owner of all lands beneath navigable waters. Under the public trust doctrine, the state holds these lands beneath navigable waters in trust for the benefit of the public. In order to benefit commerce, the Legislature enacted the Riparian Rights Act of 1856 by which it divested its right and interest in submerged lands to those upland owners who benefited commerce by building wharves and warehouses and filling their water lots. In 1921, for the purpose of improving navigation and commerce, and to stimulate and encourage the improvement of submerged lands, the Legislature enacted the Butler Act, which gave upland riparian owners the right to improve the shoreline adjacent to their property by bulkheading, filling in, and improving the adjacent lands. See Chapter 8537, Laws of Florida (1921), formerly codified as Section 271.01, Florida Statutes. The law was made retroactive to the effective date of the 1856 Act and had the effect of divesting the State of its title to the submerged lands adjacent to the upland property if the adjacent riparian owner filled in, bulkheaded, or permanently improved those lands. This divestiture of title, however, was "subject to any inalienable trust under which the State holds said lands." Ch. 8357, Section 1, at 332, Laws of Fla. (1921). In 1957, the Legislature expressly repealed the Butler Act by Chapter 57-362, Laws of Florida, which is commonly known as the Bulkhead Act. Section 9 of the Bulkhead Act has been codified as Section 253.129, Florida Statutes, and it provides that "[t]he title to all lands heretofore filled or developed is herewith confirmed in the upland owners and the trustees shall on request issue a disclaimer to each such owner." By enacting that law, the Legislature specifically confirmed the title in land to all upland owners who had performed the improvements before the repeal of the Butler Act. Disclaimers An owner of submerged lands under the Butler Act might nonetheless seek a disclaimer from the Board to confirm title to his property for at least two reasons. First, one might seek a disclaimer in order to obtain title insurance if the title company had some question about ownership of the submerged lands. Second, because the State charges a fee to lease submerged lands for private uses, an owner might seek a disclaimer from the State in order to establish a superior right to the land and thus avoid paying fees for a private use. The disclaimer would then be used by the titleholder as evidence of his ownership. Pursuant to the Bulkhead Act, in 1957 the Board began issuing disclaimers to those upland owners who had "filled in" or "developed [bulkheaded]" their submerged lands. Following a court case in 1985, the Board also began issuing disclaimers for submerged lands over which "permanent improvements" had been made. In all, the Board estimates it has issued "more than 100" disclaimers. Events precipitating the proposed rule changes In June 1997, the Board issued a disclaimer of title to Support Terminals for the footprint of a pier but included certain "reversionary" language in the disclaimer. The same language first appeared in an earlier disclaimer issued on May 3, 1996, to a property owner in Monroe County, Florida. In doing so, for the first time since it began issuing disclaimers, the Board attempted to assert a potential reversionary interest in Butler Act lands through a disclaimer. The language in Support Terminals' disclaimer read as follows: Provided, however, that because the lands subject to this disclaimer are subject to the inalienable public trust under which the Grantor acquired and holds title to sovereignty lands, if Grantee permanently abandons any of the improvements above and as a result of the abandonment said improvements deteriorate and wash away through a gradual, imperceptible process, all right, title and interest in the lands beneath the improvements shall automatically and immediately vest in Grantor, without notice to Grantee, and Grantee shall forfeit all right, title and interest in and to said lands. After the disclaimer was issued, Support Terminals filed a petition under Section 120.56(4), Florida Statutes, seeking to have the above statement declared invalid on the ground it constituted a rule and the Board had not adopted the statement by rulemaking procedures. See Support Terminals Operating Partnership, L.P. v. Bd. of Trustees of the Internal Improve. Trust Fund, DOAH Case No. 97-2988RU. It also filed a petition under Sections 120.569 and 120.57(1), Florida Statutes, which is docketed as DOAH Case No. 97-5903, alleging that the Board's action affected its substantial interests. The first petition prompted the Board to initiate rulemaking development in January 1998. The existing and proposed rule Existing Rule 18-21.019(1), Florida Administrative Code, which was adopted on November 1, 1995, and amended in minor respects in 1996, generally describes the application process by which owners of "filled formerly sovereignty lands" may confirm title to those lands through a disclaimer. It makes no reference to "submerged" lands, or to owners of lands that were "bulkheaded" or "permanently improved" prior to 1957. Subsection (1)(b) of the rule requires that an owner file an application for a disclaimer on DEP Form No. 63-031(16), which has been adopted and incorporated by reference. Neither the existing rule or form contain any standards or criteria which, if not met, would warrant denial of the application for a disclaimer. The proposed amendments generally add two classes of landowners (those who have bulkheaded or permanently improved the submerged lands) who can apply for a disclaimer under the rules. This is to codify the Board's present practice of issuing disclaimers for all three types of development. However, the Board acknowledges that the new rules are primarily intended to address disclaimers for "permanent improvements," a subject not covered by the existing rule. The rules also establish eleven new criteria and standards for "submerged sovereignty lands filled in, bulkheaded, or permanently improved" prior to 1957, none of which are found in the current rule or form, which "must be met for an application for disclaimer under this subsection to be approved." These standards and criteria are codified in subparagraphs (1)(c)1.-11. and are readopted in the form; only six, however, are in issue. These six criteria, while somewhat lengthy, are repeated below: (c) All of the following standards and criteria for disclaimers must be met for an application for disclaimer under this subsection to be approved: (1) . . . For purposes of this rule the words . . . "permanently improved" are defined below: c. "Permanently improved" shall mean that a vertical wall or embankment, such as a sea wall, revetment, or similar structure, the purpose of which is to hold back soil or filled in lands from entering the water, was placed on sovereign submerged lands. Permanent improvements are those structures or improvements which are continuing or enduring in the same state, status, and place without fundamental or marked change, and are intended to be fixed, lasting, and stable. Dredged submerged lands adjacent to, and used as adjuncts to, piers or docks may be permanent improvements under the guidelines contained in relevant court orders which are rendered from time to time. Offshore dredging done for the sole or primary purpose of filling in other lands, not as a necessary adjunct to structures which constitute permanent improvements under this rule, shall not be considered permanent improvements under this rule. Lands below mean or ordinary high water line which were filled in, bulkheaded, or permanently improved prior to the applicable date under subsection (1)(a) above, but which are no longer filled in, bulkheaded, or permanently improved in whole or in part, when application is made, shall not qualify for a disclaimer under this rule. Title to lands which are no longer filled in, bulkheaded, or permanently improved, and therefore no longer comply with the Butler Act shall be claimed by the Board of Trustees as part of the Public Trust. This includes lands which have subsequently eroded due to natural causes. Applications for disclaimers for such lands shall be denied. 6. The filling in, bulkheading, or permanent improvement must have been made by or on behalf of the owner of record of the contiguous riparian upland property or his, her, their, or its agent at the time of the filling in, bulkheading, or permanently improving. Filling in, bulkheading, or permanent improvements made by a person with no legal relationship to the owner of record, or not for the primary purpose of improving and developing the water front property, shall not be disclaimed (e.g., filling in, bulkheading, or permanent improvements made by the Florida Department of Transportation for a bridge or causeway). Applications for disclaimers for permanent improvements on or over lands which are still submerged shall be considered on a case-by-case basis. In determining whether to approve or deny such applications, the Board of Trustees shall consider such things as: whether the structure was intended to be temporary or permanent; whether the structure is similar to the types of structures stated as examples in the Butler Act (and in s. 18- 21.019(1)(c)1.c., F.A.C.); whether the structure can last indefinitely (for a reasonable length of time in the context of human life) if it is properly maintained; whether the structure is still standing and is reasonably expected to remain standing; whether and how the structure relates to the uplands and the other proximate filling, bulkheading, or permanent improvement; whether the structure is necessary to make the other filled, bulkheaded, or improved lands fully functional for the purpose for which they were intended; and such other things as are specified by the courts from time to time to be relevant. Submerged lands to be disclaimed shall be subject to the inalienable Public Trust. Such lands shall be available for the traditional public uses of fishing, swimming, and boating. In addition, proposed paragraph (1)(e) provides that "[d]isclaimers issued by the Board of Trustees shall substantially conform to DEP Form #63-035(16)," which has been adopted and incorporated by reference. Paragraph 5. of that form has been amended to include the "Standards and Criteria Requirements" which must be met by an applicant. They include, in a verbatim fashion, the disputed standards and criteria set forth in Finding of Fact 19. The form also includes the following language, which essentially parrots language in subparagraph (1)(c)11., considered by Petitioners to be offensive: All lands within the above-described area which are submerged at the time of this grant shall be subject to the inalienable public trust. Such lands shall be available for the traditional public uses of fishing, swimming, and boating. Finally, the form includes the following "Notice," which is intended to modify the language contained in the disclaimer issued to Support Terminals in Case No. 97-2988RU: NOTICE: If at any time or for any reason, the lands described herein are no longer bulkheaded or filled-in or permanently improved, and said lands are no longer being used or intended to be used for the purposes contemplated by the Butler Act, Grantor shall have the right to reclaim all right, title and interest in and to said lands as part of the public trust lands. As specific authority for adopting the rule amendments, the Board cites Section 253.03(7), Florida Statutes. The specific laws being implemented by the Board are identified as Sections 253.03, 253.12, 253.129, and 253.43, Florida Statutes. Has the Board Exceeded its Rulemaking Authority? Petitioners collectively contend that the Board has exceeded its rulemaking authority by proposing amendments to Rules 18-21.019(1)(c)1.c., 2., 3., 6., 10., and 11., and Form No. 63-035(16). The Board has cited Section 253.03(7), Florida Statutes, as the source of its rulemaking authority. That subsection authorizes the Board to "administer all state-owned lands," to be responsible for, among other things, the "disposition of state-owned lands," and to adopt rules to "carry out the purposes of this act." The Board has also cited Section 253.129, Florida Statutes, as one of the statutes being implemented. It contends that under that statute, it has the specific authority to issue or deny "disclaimers" based upon standards and criteria contained in the new rule. For the reasons given in the Conclusions of Law portion of this Final Order, the challenged rules and form do not exceed the Board's rulemaking authority, and thus they are a valid exercise of delegated legislative authority. Do the Rules and Form Contravene the Law Being Implemented? Petitioners next contend that the same rules and form enlarge, modify, or contravene the specific provisions of law being implemented. For the reasons given in the Conclusions of Law portion of this Final Order, the challenged rules and form do not enlarge, modify, or contravene Section 253.129, Florida Statutes, and thus they do not violate Section 120.52(8)(c), Florida Statutes, as alleged by Petitioners. Are the Proposed Amendments Arbitrary and Capricious? Petitioners have also contended that the same rules and form are arbitrary and capricious, that is, they are not grounded on fact or logic, or based on a reasonable analysis. Section 18- 21.019(1)(c)1.c. provides a lengthy definition of the term "permanently improved." The first sentence of subparagraph 1.c. defines the following structures or improvements as falling within the purview of the rule: buildings, wharves, piers, dry docks, docks, boat houses, warehouses, dwellings, bath houses, marine railways, or other similar structures or improvements which improve or develop the riparian lands for the purposes of navigation and commerce was placed on sovereign submerged lands. Because some of the defined structures (wharves, warehouses, dwellings, and other buildings) are found in the Butler Act itself, and the others come from a string of judicial cases interpreting the Act, the first sentence is based upon a reasonable analysis and is thus not arbitrary or capricious. The second sentence provides that "[p]ermanent improvements are those structures or improvements which are continuing or enduring in the same state, status, and place without fundamental or marked change, and are intended to be fixed, lasting, and stable." This definition was drawn from the definition of the word "permanent" found in the 1979 Edition of Black's Law Dictionary. In doing so, the Board also noted that in DOAH Case No. 91-1408, CSX Realty, Inc. v. Bd. of Trustees of the Internal Improvement Trust Fund (DOAH, Recommended Order issued January 27, 1992)(no Final Order because of settlement), which involved an application for a disclaimer, the Hearing Officer relied on the same source to determine a meaning for the word "permanent." The use of a dictionary to define a word such as "permanent" is not arbitrary or capricious, and thus the rule is not invalid. The third sentence in the subparagraph addresses the issue of when dredging may be considered as a permanent improvement. It identifies one factor as being "relevant court orders which are rendered from time to time." Because of the current conflict in the law regarding dredged improvements, caused by conflicting District Court of Appeal decisions, the Board's reliance on "relevant court orders" to make this determination is based on logic and reason. The next challenged provision is paragraph (1)(c)2., which reads as follows: Lands below mean or ordinary high water line which were filled in, bulkheaded, or permanently improved prior to the applicable date under subsection (1)(a), above, but which are no longer filled in, bulkheaded, or permanently improved in whole or in part, when application is made, shall not qualify for a disclaimer under this rule. Under this criterion, an applicant would not qualify for a disclaimer if the submerged lands were "no longer filled in, bulkheaded, or permanently improved in whole or in part." The logic for this section is the Board's reasoning that fill and structures must be of a "permanent" nature, as the statute implies, in order to preclude public use. While this view is obviously subject to dispute by the parties, it cannot be said that it was based on whim, rather than reason. Therefore, it is not arbitrary and capricious. Paragraph (1)(c)3. essentially parrots the concept in the preceding paragraph, but also includes eroded lands. The inclusion of eroded lands was based on the Board's concept of boundary law, as it relates to water boundaries. For the same reason expressed in the previous finding of fact, the paragraph is found to be based on logic and reason. Petitioners next contend that paragraph (1)(c)6. is invalid on the same ground. It provides as follows: 6. The filling in, bulkheading, or permanent improvement shall have been made to improve or develop the submerged lands contiguous to the riparian upland property for purposes of navigation and commerce. Because the improvement of navigation and commerce is a purpose of the Butler Act and the incorporated Riparian Act of 1856, and the language is not inconsistent with case law, the Board used a reasonable analysis in developing this part of the rule. Petitioners also contend that paragraph (1)(c)10. is arbitrary and capricious. This lengthy paragraph identifies a variety of standards and criteria which the Board intends to use, on a case-by-case basis, to determine whether an improvement is "permanent." Starting with the premise that structures must be "permanent" in order for an applicant to qualify for a disclaimer, the Board developed the standards and criteria from case law interpreting the Act, the Act itself, administrative decisions, and dictionary definitions. The analysis is a reasonable one and sufficient to withstand Petitioners' attack. Paragraph (1)(c)11. provides that submerged lands to be disclaimed are subject to the "inalienable Public Trust," and they shall be available for the traditional public uses of fishing, boating, and swimming. Form 63-035(16), also being challenged, contains essentially the same language. The substance of the rule is drawn from parts of the Butler Act itself, which provides that submerged lands to be disclaimed are subject to the "inalienable trust" and public "trust." It also rests upon the Board's logical view that if submerged lands are no longer filled in, bulkheaded, or permanently improved, the public might reasonably assume that the open waters are available for the stated public uses. The Board's choice of language is arguably consistent with a recent appellate case on the subject which implies that when submerged land is no longer "completely foreclosed by development," the public can resume its rights. City of West Palm Beach v. Bd. of Trustees of the Internal Improvement Trust Fund, 23 F.L.W. D1387, D1389 (Fla. 4th DCA, June 10, 1998). Therefore, the provision has a reasonable and logical foundation. Are the Rules Vague, Standardless, and Overly Discretionary? Petitioners also assert that Rules 18-21.019(1)(c)1.c., 2., 3., 6., and 10., and Form No. 63-035(16) are vague, fail to contain adequate standards for agency decisions, or vest unbridled discretion in the Board. By stipulation only, but without specific pleading in their initial petitions, Petitioners have first contended that subparagraph (1)(c)1.c. is invalid for all of the above reasons. As noted earlier, this provision defines the term "permanently improved." Because the language in the definition is not so vague as to confuse a reasonably intelligent person, it is not unlawful. Moreover, through the use of definitions derived from a dictionary, the rule contains adequate standards to guide the agency's discretion. Finally, the rule does not vest unbridled discretion in the agency. Therefore, the rule is a valid exercise of delegated legislative authority. As to paragraph (1)(c)2., Petitioners claim that the rule fails to establish adequate standards for agency decisions and vests unbridled discretion in the Board by giving the Board the discretion to deny a disclaimer "for even minor changes in the improvement." In response to this objection, however, the Board has demonstrated that when the language in this paragraph is read in pari materia with the definition of "permanently improved," the Board must act under adequately defined standards using sound discretion. As to paragraph (1)(c)3., Petitioners contend that the rule is vague, fails to establish adequate standards for agency decisions, and vests unbridled discretion in the Board. As to vagueness, they argue that "there is no suggestion of how the state shall claim said lands as part of the public trust." They further contend that there are no standards to determine when land is no longer permanently improved, or when it is sufficiently eroded to trigger the Board's claim of right. Finally, they assert that there is no "reviewable language providing procedural due process to the land owner." In many respects, paragraph (1)(c)3. parrots paragraph (1)(c)2., except that it includes eroded lands. It is clear and precise, and it should not be confusing to a person of common intelligence. As to a lack of standards, the Board will be required to rely upon the definition of "permanent improvements" to guide its actions, and it will do so only after a physical inspection of the property is made, and the applicant is allowed to present evidence regarding his circumstances. As to an alleged lack of standards when land is eroded, the Board has relied upon the fact that under common law, the boundary is ambulatory, and a more definitive standard is not required nor practical. Therefore, the rule is not invalid. As to paragraph (1)(c)6., which generally requires that the permanent improvements have been made "for purposes of navigation and commerce," Petitioners contend that the rule is vague, fails to establish adequate standards for agency decisions, and vests unbridled discretion in the Board. More specifically, they contend that the rule fails to state whether the owners' original intent had to be for both navigation and commerce, and it allows the Board unbridled discretion "to evaluate the initial waterfront improvement when the statute does not require that each improvement meet any criteria related to purpose." Because the terms "navigation" and "commerce" are words that have a commonly accepted meaning, they are not unreasonably vague or confusing. Further, through existing case law on the subject, navigation and commerce are clearly linked to one another. Finally, in each application for a disclaimer, the Board's discretion is limited by the standards contained in the definition of "permanent improvements." Therefore, the rule is not invalid, as claimed by Petitioners. As to paragraph (1)(c)10., which identifies the criteria which the Board will consider in determining whether a structure is permanent, Petitioners first claim that the rule is vague because the terms "standing" and "things" are not defined, and the relationship of the structure to other considerations is not known. They further contend that there is no standard of review for the Board's case-by-case inquiry, and thus the Board has unbridled discretion. A dock or dwelling which is "standing" is not so vague as to confuse persons of common intelligence. Likewise, given the fact that so few cases have interpreted this body of law, with one exception, the six criteria within the rule do not constitute standardless discretion. However, a reasonably intelligent person would be required to speculate as to the meaning of the word "things" in the phrase "such other things as are specified by the courts from time to time." In addition, this language has the practical effect of giving the Board unlimited discretion as to when and if the "things . . . specified by the courts" may be used as a standard in future applications. Therefore, that portion of the rule is an invalid exercise of delegated legislative authority on the ground it is vague and standardless. Finally, Petitioners claim that newly added language in Form No. 63-035(16) is vague because it "creates confusion in the alleged rights of the public in [Petitioners'] land." They also argue that the language creates "no discernible standard to provide guidance to the [Board] in representing the rights and interests of the public in the remaining and adjoining river bottoms." As noted earlier, it is logical to make the assumption that the public could reasonably believe that open waters may be used for public purposes. Second, the Notice contained in the form is precise and clear, and none of Petitioners indicated they misunderstood its intent and purpose. Finally, as to the new criteria recited in the form, for the reasons expressed above, they do not vest standardless discretion in the Board. Therefore, the form is not invalid for these reasons. Is There Competent, Substantial Evidence? Finally, Petitioners allege that there is no substantial, competent evidence to support the amendments to Rules 18-21.019(1)(c)1.c. and (1)(c)3., and Form No. 63-035(16). More specifically, they contend that there is "no evidence" to support the Board's alleged right to reclaim privately-owned land solely due to passive ownership or nonuse. They also argue that there is no evidence that the non-use or non-permanence of prior improvements has any negative impact on the Board's interest in the remaining water body. As to the foregoing contentions, the record supports a finding that the challenged rules and form are based on competent, substantial evidence, and they are therefore valid.
Findings Of Fact Applicant-Respondent Atwater owns a residence fronting on Lake Minnehaha with access to the lake. He proposes to construct a dock from his property extending into the lake a distance of approximately 100 feet until adequate depth of water is found where his boat can be launched and retrieved. The boat house proposed for construction at the end of the dock will be roofed, but of open construction. Lake Minnehaha is a meandered lake. Accordingly the lake bottom below the mean high water line is sovereign land under the jurisdiction of the Trustees of the Internal Improvement Trust Fund (IITF). Numerous docks, some with enclosed boat houses, exist at various places around the perimeter of the lake. One such dock and boat house fronts on property just west of Atwater's property. Kling's property is adjacent and eastward of Atwater's property. Kling has a boat dock (but no boat house) extending from his property into the lake. Photographs showing views from applicant's and Kling's property are labeled to indicate that Kling's property is west of Atwater's; however, the conflict in direction is not material to the determination of the issues here involved. These photos further show that Petitioner's view of the lake from his house in the direction of the structure proposed by Atwater is materially blocked by trees and vegetation. The structure proposed by Atwater will commence 20 feet inside the easterly boundary of his property at the shoreline and extend into the lake. The proposed open boat house at the end of the dock will extend 12 feet toward Kling's extended property line, leaving the dock and boat house within the lakeward extension of Atwater's property line. With an open boat house the interference with a view of the lake will be minimal. Construction of the dock and boat house will not create any source of pollution and will not degrade the quality of the water of Lake Minnehaha.
The Issue Whether Scott S. Carswell, The Moon Property (Petitioner), has demonstrated that development rights in certain real property it owns have vested against the provisions of the Tallahassee-Leon County 2010 Comprehensive Plan.
Findings Of Fact Chronology The property on which "The Moon" building is located was initially purchased by Grant Peeples and Scott S. Carswell in 1984. The Peeples/Carswell partnership filed bankruptcy in December 1986, and "The Moon" was closed in April 1987. In December 1987, Moon Management, Inc. (Scott S. Carswell and Tallahassee Entertainment Facility, Inc.) executed a partnership agreement to reopen "The Moon" and continue its operations. In December 1988, Scott S. Carswell, Moon Management, Inc., repurchased the Moon property from the Florida National Bank. In November 1989, the Respondent City of Tallahassee published a caveat announcing the preparation of the 2010 Comprehensive Plan and advising that land use designations would be changed pursuant to the Plan. On February 1, 1990, the Respondent submitted its 2010 Comprehensive Plan to the Florida Department of Community Affairs. In March 1990, Petitioner entered into a 50 year lease agreement for the property at issue, which is vacant property immediately east of the property on which "The Moon" building is located. This agreement also provided for Petitioner's purchase of a 10 foot by 330 foot parcel immediately west of the "Moon" property. Zoning History The property at issue in this proceeding is part of a portion of property located on the south side of Lafayette Street between Seminole Drive and Magnolia Drive in the City of Tallahassee. The development project Petitioner seeks to have vested would involve commercial development of vacant land located between the existing "Moon" building and an existing strip shopping center. With the exception of the vacant property, the entire parcel on the south side of Lafayette Street between "The Moon" building and parking lot and Magnolia Drive to the east, is currently developed and houses commercial business enterprises. Petitioner leased the subject property from Alban Stewart in March 1990. This property has been zoned for commercial uses since 1955. The Stewart family began developing property within the tract in 1960. The building occupied by "The Moon" was constructed in 1962. "The Moon" building was originally constructed for, and occupied by, a super market. Since this building was sold to Scott S. Carswell and his partners in 1984, the building has been occupied by "The Moon" and, with the exception of a short period while "The Moon" was in bankruptcy, has operated as a commercial entertainment facility. In 1988 Petitioner Carswell attempted to obtain approval from the Respondent City of Tallahassee to expand "The Moon" operation on property west of the existing building. Petitioner's requested variance was not granted because the proposed expansion encroached into a buffer zone between "The Moon" facility and Seminole Drive. During negotiations with Respondent regarding this 1988 zoning variance request, City officials suggested that Petitioner consider developing east of "The Moon" facility, which was at that time zoned for commercial use. When Petitioner Carswell was unable to obtain a variance to proceed with his plans to expand west of "The Moon" building, he began plans and negotiations to develop east of the existing facility. Theee plans and negotiations culminated in the lease agreement which Carswell entered into with Alban Stewart in March 1990. In the meantime, the 2010 Comprehensive Plan was adopted by the Respondent and submitted to the Department of Community Affairs in February 1990. Land use provisions within the Plan changed the zoning of the property at issue to a designation of residential preservation. The residential preservation designation does not permit the Petitioner's development for commercial purposes. The property at issue does not meet any of the Comprehensive Plan criteria for residential preservation designation. Permitting Construction for the proposed expansion has not been undertaken. No permits have been issued for any structures on the proposed development. There have been no plat approvals for the structures in the proposed development. Petitioner's Application for Vested Rights On or about October 3, 1990, Scott S. Carswell filed an Application for Vested Rights Determination (hereinafter referred to as the "Application"), with the Tallahassee-Leon County Planning Department. (Application VR0082T) The following information concerning the development of The Moon property was contained on the Application: "Scott S. Carswell is listed as the President, Tallahassee Entertainment Facility, Inc." The project is described as consisting of "existing commercial uses of property as well as uses proposed for property." The property location is described as "on Lafayette Street between Seminole Drive and Magnolia Drive and contains approximately 9.39 acres as shown in Exhibit 4, site plan." as: "Progress . . . Toward Completion" is described plans (R 2, p. 20, Line 9-21, Line 13). purchase of fixtures (R-2, p. 21, Line 22, p. 22, Line 10). lease of property (R-2, p. 23, Line 9-17). Expenses for proposed facility March 31, 1990, lease agreement for $3,200 per month. (R-1, Exhibit 8c) July 19, 1990, The Moon Expansion for $5,000. (R-1, Exhibit 8c) March 6 - April 30,1990,"Club Development $9,231.83." (R-1, Exhibit 8d) May 25,1990,Planning cost.(R-1, Exhibit 8e) Planning Dates September18,1990,Captain Tony's proposal. (R-1, Exhibit 5d) May 25,1990, letter of interest for Captain Tony's. (R-1, Exhibit 7 A-4) April 4, 1990, completed plans for project, estimate of costs. (R-1, Exhibit 7 A-5) The Application lists substantial additional expenses which were in fact associated with the original structure and operation of "The Moon" and do not relate to Petitioner's proposed expansion/development. Common Law Vesting Petitioner seeks approval of the Application for Vested Rights based upon the common law vesting provisions pursuant to the City of Tallahassee Ordinance 90-0-0043AA. Petitioner does not assert a claim of statutory vesting.
The Issue Whether the Appellant, Terrance H. Fregly, has demonstrated that development rights in certain real property he owns have vested against the provisions of the 2010 Comprehensive Plan?
Findings Of Fact The Property at Issue. In approximately 1977-1980, Mr. Fregly purchased several adjoining parcels of real estate. The parcels were to some extent marginally developable property. The total property acquired by Mr. Fregly was approximately 20 or 25 acres and was named the "Lakewood Industrial Center" by Mr. Fregly. The evidence presented by Mr. Fregly did not clearly establish whether the property consisted of 20 or 25 acres. Whatever the total acreage was, it will be referred to collectively as the "25 Acres". The 25 Acres are located on the east side of Capital Circle, Northwest, Tallahassee, Leon County, Florida. Mr. Fregly intended to develope the property in accordance with the land uses permitted under the M-2 zoning ordinance in effect in 1977-1980. At some time after acquiring the 25 Acres, Mr. Fregly developed part of the 25 Acres, by building approximately 65,000 square feet of warehouses on part of the 25 Acres. The warehouses and the real estate (hereinafter referred to as the "Warehouse Acres") they were built on were subsequently sold by Mr. Fregly. Mr. Fregly also sold another part of the 25 Acres. In total, by 1985 Mr. Fregly had sold approximately 11 acres of the 25 Acres. The remaining 14 acres (hereinafter referred to as the "Subject Property"), of the 25 Acres are the subject of the Application for Vested Rights Determination (hereinafter referred to as the "Application"), filed by Mr. Fregly with Leon County, Application VR0042LC0. The Subject Property is comprised of tax parcel 009, consisting of approximately 4 acres, and tax parcel 210, consisting of approximately 10 acres. Development of the 25 Acres. Mr. Fregly obtained approval to rezone part of the 25 Acres from agricultural to M-2 Industrial. The weight of the evidence failed to prove when this occurred. The 25 Acres were zoned partly M-1 and partly M-2. In April, 1980, Mr. Fregly received from the Leon County Department of Public Works, Leon County Land Clearing and Development Permit No. 1017 (hereinafter referred to as "Permit 1017"). Permit 1017 authorized Mr. Fregly to clear, grade and fill the 25 Acres and to construct a stormwater detention system thereon. Permit 1017 was applied for by Mr. Fregly with an Application for Permit for Clearing and Development dated as received March 17, 1980. It was indicated on the Application for Permit for Clearing and Development that the purpose of the application is as follows: Application is hereby made for a permit to make changes in the contour of land proposed to be subdivided, developed, or changed in use by grading, excavating, removal, alteration, or destruction of the natural topsoil, as hereinafter located and described. . . . The weight of the evidence failed to prove that Leon County made any representation to Mr. Fregly in issuing Permit 1017 concerning the future development of the Subject Property other than authorizing Mr. Fregly to clear and grade the Subject Property for some future unspecified development, subdivision or other change to the use of the Subject Property. The State of Florida Department of Environmental Regulation issued Construction Permit No. 37-36313-1E (hereinafter referred to as the "DER Permit"), on May 17, 1983. The DER Permit has an expiration date of May 30, 1985. The DER Permit authorized Mr. Fregly to fill approximately 3.5 acres of wetlands with approximately 9,500 cubic yards of fill. Not all of the 3.5 acres involved in the DER Permit are located on the Subject Property. Based upon information provided to DER on John W. DuBose, PLS, letterhead attached to the stipulation agreement entered into by Mr. Fregly and the Department of Environmental Regulation agreeing to the issuance of the DER Permit as Attachment A, it appears that the DER Permit authorized fill to be placed on tax parcel 423 which is not a part of the Subject Property. The DER Permit was issued pursuant to a Final Order issued by the Department of Environmental Regulation approving a settlement stipulation. The weight of the evidence failed to prove that Leon County was involved in the granting of the DER Permit or that Leon County made any representation to Mr. Fregly when the DER Permit was issued. Mr. Fregly also received a federal dredge and fill permit in 1980 or 1981. This permit was not offered into evidence. The weight of the evidence failed to prove what portion of the 25 Acres this permit applied to. The weight of the evidence failed to prove that Leon County was involved in the granting of the federal dredge and fill permit or that Leon County made any representation to Mr. Fregly when the permit was issued. Following the issuance of the DER Permit and the federal permit, Mr. Fregly alleged that approximately 109,500 cubic yards of fill material was placed on the Subject Property: 9,500 cubic feet on tax parcel 210 (prior to 1982-1985), and 100,000 cubic feet on tax parcel 009 (from 1982-1985). In light of the fact that the DER Permit also involved property other than the Subject Property, it is not clear whether these figures are correct. The 25 Acres were cleared and graded. A master stormwater system to accommodate stormwater runoff from the 25 Acres was constructed. A paved access road was constructed on the edge of tax parcel 009 and the Warehouse Acres. The road is used for access to the Warehouse Acres and will be used for access to the Subject Property. An easement for use of the road was granted to the purchasers of the Warehouse Acres. Mr. Fregly intends to extend the access road into tax parcel 210. The Warehouse Acres were prepared for construction and the warehouses were constructed prior to 1985 when the Warehouse Acres were sold. The foregoing activities occurred between approximately 1977 and 1985. Much of Mr. Fregly's development activities were associated with the development and sale of the Warehouse Acres and not the Subject Property. Between 1985 and the filing of the Application, the development of the Subject Property has been marginal. On July 31, 1989, the Leon County Department of Public Works, Division of Environmental Management, issued Environmental Management Permit No. 890312 for landscape, trees and "special condition" on tax parcel 009 of the Subject Property. On September 24, 1990, Mr. Fregly applied for Leon County Department of Public Works, Division of Environmental Management, Permit No. 90538 to authorize construction of additional stormwater facilities and landscaping on tax parcel 210 of the Subject Property. The infrastructure for the Subject Property has not been completed. In particular, the access road for tax parcel 210 of the Subject Property has not been completed. There has been no subdivision review or processing by Leon County for the Subject Property, no site plan approval for the Subject Property has been sought or granted and no building permits or planned unit development approvals have been issued for the Subject Property. Despite the representation in the Application to the contrary, not all of the permits to develope the Subject Property have been obtained. Costs Incurred by Mr. Fregly. Mr. Fregly offered a pleading titled "Chronology & Cost Data" (hereinafter referred to as the "Chronology"), as evidence concerning the costs incurred in the development of the 25 Acres, including the Subject Property. Pursuant to the Chronology, Mr. Fregly has suggested that he has incurred $172,846.21 since the 25 Acres were acquired. In Mr. Fregly's proposed final order it has been suggested that approximately $118,000.00 of the amounts listed on the Chronology were incurred for "site work, clearing, grading, filling, construction of the stormwater management system and access roadway". Exactly which of the cost items listed on the Chronology have been included in the $118,000.00 is not clear. In the conclusions of law of Mr. Fregly's proposed final order it has also been suggested that Mr. Fregly incurred in excess of $160,000.00 in expenses. Exactly what expenses make up this amount is also not clear. The weight of the evidence failed to prove the extent to which the following costs listed on the Chronology were incurred only for the Subject Property: $12,300.00 for "A. Dredge & fill permit"; $1,200.00 for "B. Engineering fee - Dredge & Fill DER & Federal"; $4,700.00 for "C. Engineering fee - Stormwater design Leon County"; $3,700.00 for "D. Pipe & Dredge ditch . . ."; $22,535.45 for "E. Road construction"; and $3,900.00 for "F. DOT entrance". The costs listed in paragraphs A-F of the Chronology were attributable in part to the Warehouse Acres. For example, the $22,535.45 was for paving the access road and "parking between warehouses." This amount is primarily attributable to the Warehouse Acres and only partly to the Subject Property. It is also not clear whether the costs allegedly attributable to filling the Subject Property are attributable only to the Subject Property. Based upon information provided to DER on John W. DuBose, PLS, letterhead attached to the stipulation agreement entered into by Mr. Fregly and the Department of Environmental Regulation agreeing to the issuance of the DER Permit as Attachment A, it appears that the DER Permit authorized fill to be placed on tax parcel 423 which is not a part of the Subject Property. The weight of the evidence failed to prove whether tax parcel 423 was filled or whether the costs associated with filling submitted were only incurred for filling the Subject Property. Based upon the foregoing findings of fact, the weight of the evidence failed to prove what part of the costs listed on the Chronology or testified about by Mr. Fregly are attributable to the development of the Subject Property. It cannot, therefore, be determined the extent of any detriment which Mr. Fregly may have suffered as a result of any alleged Leon County representation concerning the development of the Subject Property. All of the costs listed in the Chronology were incurred after Permit 1017 was acquired. The weight of the evidence failed to prove that the costs incurred by Mr. Fregly in reliance on the issuance of Permit 1017 were substantial. All that Permit 1017 authorized Mr. Fregly to do was to clear, grade and fill the 25 Acres and to construct a stormwater detention system. As Mr. Fregly knows, the laws governing the approved uses of land can change. It cannot, therefore, be concluded that Mr. Fregly reasonably believed that the issuance of Permit 1017 would allow him to fully develope the 25 Acres, or more particularly, the Subject Property, more than ten years later without any change in the laws governing how the Subject Property was to be changed. Development of the Property under the 2010 Plan. Mr. Fregly intends to develope the Subject Property by building 57,000 square feet of warehouse and office space. The weight of the evidence failed to prove that Mr. Fregly ever informed Leon County or that Leon County was aware of this intended use of the property until these proceedings commenced. Throughout these proceedings, Mr. Fregly, who was proffered and qualified as an expert in commercial real estate development, testified that there was an executed "lease" on the Subject Property. Representations that there is an executed lease are made several times in the Application filed by Mr. Fregly. The weight of the evidence, however, failed to prove that such a lease exists. At best, Mr. Fregly proved that he has a "gentleman's agreement" concerning a proposed lease of part of the Subject Property. Mr. Fregly's proposed development of the Subject Property would be allowed under the M-1 and M-2 zoning of the Subject Property. For purposes of the 2010 Comprehensive Plan, the Subject Property is currently in a Mixed-Use B, land-use designated area. Under the current zoning of the Subject Property, there are a substantial number of possible uses that are authorized, but the extent of such uses is limited, based upon similar existing uses within the zone the property is located. There are also restrictions involving permeability, transportation, utilities and the effects on adjacent landowners. Leon County has issued a certificate of concurrency for part of tax parcel 210. The certificate indicates concurrency compliance for a bulk storage facility of 6,000 square feet, plus 1,500 square feet of office space. Mr. Fregly has not asked Leon County to perform a formal consistency review of the Subject Property. The weight of the evidence failed to prove that the Subject Property does not meet the concurrency requirements of Chapter 163, Florida Statutes, or the 2010 Comprehensive Plan. In fact, the evidence proved that the Subject Property is in all likelihood consistent with the 2010 Comprehensive Plan. Procedure. Mr. Fregly filed the Application on or about August 20, 1990. On November 26, 1990, a hearing was held to consider the Application before the Staff Committee. At the request of Mr. Fregly the hearing was continued until December 17, 1990, to give Mr. Fregly an opportunity to provide additional information concerning the costs incurred by him in the development of the Subject Property. On December 17, 1990, the Staff Committee was reconvened. Mr. Fregly provided a map of the property and the Chronology. By letter dated December 19, 1990, Mark Gumula, Director of Planning of the Tallahassee-Leon County Planning Department, informed Mr. Fregly that the Application had been denied. By letter dated January 2, 1991, to Mr. Gumula, Mr. Fregly appealed the decision to deny his Application. By letter dated January 11, 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 April 17, 1991.
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 Richardson’s application for a wetlands resource permit to construct a private road and bridge through wetlands should be denied for failing to provide mitigation to offset the impacts to existing wetlands. Whether Respondent Richardson had provided the Department with reasonable assurance that he or she owns or has sufficient authorization to use certain land in mitigation to offset the wetland impacts.
Findings Of Fact In January of 1990, John Richardson applied to the Department for a wetland resource (dredge and fill) permit under Section 403.918, Florida Statutes to construct a private road and bridge through wetlands. The proposed project would impact 0.032 acres of wetland. The proposed project is not located in an Outstanding Florida Water (OFW). The proposed project would adversely affect the following: the conservation of fish and wildlife; the fishing, recreational values, and marine productivity in the vicinity of the proposed project; and the current condition and relative value of functions being performed by the wetlands impacted by the project. The proposed project would be permanent in nature. The proposed project would not meet the criteria of Section 403.918(2)(a) Florida Statutes, without mitigation adequate to offset the impacts to wetlands. To provide adequate mitigation for the proposed project, Respondent John Richardson proposed to create and preserve 0.029 acres of new wetlands and preserve 4.35 acres of existing wetlands. The preservation would consist of granting to the Department a perpetual conservation easement over the mitigation wetlands. Respondent John Richardson represented to the Department that he was the record owner or had permission to use the land that he offered for mitigation. The Department reasonably relied on that representation. The mitigation proposed by Respondent John Richardson would be adequate to offset the impacts to wetlands resulting from the proposed project. On March 4, 1992, the Department issued to John Richardson a wetlands resource permit for the proposed project. The Department was not aware, before it issued this permit, that John Richardson might not own or have permission to use the mitigation land. The Department was substantially justified in issuing the permit to John Richardson on March 4, 1992. Specific conditions 28-31 of that permit required Respondent John Richardson to grant the Department a conservation easement over the mitigation land within thirty days after issuance of the permit. Respondent John Richardson failed to grant the Department the required conservation easement, and failed to publish notice of the Department’s action. On July 22, 1996, Petitioners filed a timely petition with the Department challenging the Department’s issuance of the March 4, 1992, permit to Respondent John Richardson. On September 11, 1996, Janet Richardson filed an application with the Department for transfer of the March 4, 1992, permit to her following the dissolution of marriage with John Richardson. By letter dated October 11, 1996, the Department requested Janet Richardson to provide additional documentation to show that she either owns the mitigation land or has permission to use that land. Janet Richardson was required to provide a legal survey drawing depicting the mitigation land, property records showing ownership of that land, and a notarized statement from the land owner authorizing her to use that land. The Department specifically advised Janet Richardson that it could not approve the proposed project if she failed to submit this requested documentation to the Department prior to the final hearing. Janet Richardson failed to provide the requested documentation by the date of the final hearing in this matter, or subsequently. As of November 6, 1996, no work had begun on the proposed project. At the hearing, the Department adequately explained its change in position from deciding to issue the permit (on March 4, 1992) and proposing denial of the permit (on November 6, 1996). The Department relies on an applicant’s representations regarding ownership of or right to use land unless a problem is brought to the Department’s attention. In this case, the Department was not aware that there was a problem with the applicant’s right to use the mitigation land until the petition was filed with the Department on July 22, 1996. Janet Richardson failed to provide proof that she either owns or is authorized to use the land to mitigate the impacts to wetlands from the proposed project. Without such proof, Janet Richardson failed to prove that she could mitigate those same impacts from the proposed project.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Environmental Protection enter a Final Order denying Respondent Richardson’s request for a wetlands resource permit for the proposed project.ONE AND ORDERED this 17th day of December, 1996, in Tallahassee, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 17th day of December, 1996. COPIES FURNISHED: Richard Stauffer Post Office Box 97 Aripeka, Florida 34679-097 Cy Plata Post Office Box 64 Aripeka, Florida 34679 Steven McCallum Post Office Box 484 Aripeka, Florida 34679 Leslie Neumann Post Office Box 738 Aripeka, Florida 34679 John Richardson 700 West Broad Street Brooksville, Florida 34607 Janet Richardson 1603 Osowaw Boulevard Springhill, Florida 34607 Thomas I. Mayton, Jr., Esquire Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Perry Odom, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Virgina B. Wetherell, Secretary Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue Whether the Appellant, Devoe L. Moore, has demonstrated, by a preponderance of the evidence, that development rights in certain real property he owns have vested against the provisions of the Tallahassee-Leon County 2010 Comprehensive Plan?
Findings Of Fact The Property at Issue. On September 18, 1987, Devoe Moore acquired a tract of approximately 28 acres of real estate (hereinafter referred to as the "Property"), located on Lake Bradford Road just south of Gaines Street, in the City of Tallahassee, Leon County, Florida. The Property was the former location of the Elberta Crate and Box Company. The Property was at the time of purchase, and still is, zoned M-2, Industrial. Development of the Property. Mr. Moore intended to develop the Property consistent with the Property's M-2, Industrial zoning. Mr. Moore intended to build a service/commercial/mini-storage development similar to another such development of Mr. Moore in the City. In December, 1987, Mr. Moore had his engineer prepare grading and drainage plans for the Property. On January 29, 1988, Mr. Moore had an application for an amendment to a stormwater permit, Environmental Management Permit 87-1087, filed with the Leon County Department of Public Works. At that time, Leon County issued such permits for property in unincorporated areas and inside the City's limits. The grading and drainage plans for the Property were filed with the application. Leon County had not been delegated any responsibility or authority to make land-use decisions for the City. The requested amendment to Permit 87-1087 was based on an assumption of Mr. Moore that the Property would consist of 80% coverage with impervious surface. Therefore, the City was aware or should have been aware that Mr. Moore intended to construct a major development on the Property. Such a development was consistent with the zoning on the Property at the time. Neither Leon County nor the City, however, approved or in anyway addressed the issue of whether 80% coverage of the Property with impervious surface was acceptable. Nor did the City or Leon County make any representation to Mr. Moore different from that made by the City's zoning of the Property. Mr. Moore filed a site plan showing a development of 80% coverage with the application for amendment to Permit 87-1087. These plans showed a development consisting of thirteen rectangular buildings, driveways and parking area. The indicated development, however, was not reviewed or in anyway approved by Leon County or the City. On May 6, 1988, a Stormwater Permit, amending Permit 87-1087, was issued to Mr. Moore. This permit only approved the construction of a holding pond and filling on the Property. The issuance of the permit did not constitute approval of any proposed development of the Property. In 1988, Mr. Moore began clearing the Property of buildings on the Property which the City had condemned. Mr. Moore also began filling and grading the Property in 1988, and has continued to do so to varying degrees through July 16, 1991. From January 1989, through August, 1990, SANDCO placed 1,174 loads of fill on the Property. Jimmy Crowder Construction Company has also performed filling and grading work on the Property since 1988. As of the date the City's vesting ordnance was adopted and as of the date of the hearing before the Division of Administrative Hearings Mr. Moore has not completed filling on the Property. Mr. Moore also has not completed filtration improvements to the storm water hold pond to be constructed on the Property. Additional water treatment facilities on the Property must be constructed to handle runoff from the Property. No roadways, water services, sewer services or electric services have been constructed on the Property. Site preparation on the Property has not been completed so that construction of vertical improvements can begin. At the time that Mr. Moore acquired the Property, only building permits were required for the development of the Property. The evidence failed to prove that Mr. Moore obtained the required building permits. The law was changed, however, to require approval of a site plan. Mr. Moore decided not to submit a site plan at least in part because of the City's work on the sewer main. The weight of the evidence, however, failed to prove that Mr. Moore was prohibited by the City from obtaining site plan approval. The City has not approved or reviewed a site plan for the Property. At the time Mr. Moore purchased the Property, and continuing to the present, a City sewer main which runs along the southern border of the Property has been a problem. The sewer main is a health hazard because it is located in proximity to the surface of the ground and it has numerous leaks. The City indicated that it intended to build a new sewer main across the Property and Mr. Moore agreed to give the City an easement for the sewer main. After Mr. Moore purchased the Property and before February, 1989, Mr. Moore made a number of requests to the City that the City identify the easement it desired and prepare the easement grant so that the City could construct the new sewer main and Mr. Moore could proceed with his development. Requests were also made by some City employees of the City Attorney that the easement be prepared and executed because of the problem with the existing sewer main. In April, 1989, the easement grant was prepared and executed. On August 3, 1990, James S. Caldwell, Assistant Director of the City Water and Sewer Department, wrote the following letter to Mr. Moore: It has been brought to my attention that your are proceeding with construction of a stormwater holding pond on the referenced site [the Elberta Crate Site]. As discussed with you this date and as you are aware, the City has a sewer line on this property. The sewer line would be damaged by your construction activity. The City has designed a relocation and upgrade of the sewer line to be constructed on an easement previously acquired from you. Our schedule for the sewer line construction is completion by January 1, 1991. A review of your stormwater holding pond drawings and the proposed sewer line reveals a potential conflict between the proposed line and the holding pond. We shall have City staff stake out and flag the existing sewer line and the proposed sewer line. We are requesting that your construction activity stay away from the existing sewer line. After stakeout of the proposed sewer line, you may check your stormwater pond plans to assure that there is no conflict. [Emphasis added]. Mr. Moore was also told on other occasions to avoid interfering with the existing sewer line and the construction of the new sewer line. Construction of the new sewer main on the Property was not commenced until January, 1991. The construction had not been completed as of March, 1991. Part of the delay in completing the sewer main was caused by contemplated changes in the location of the sewer main and the possible need for a different easement. The weight of the evidence failed to prove that Mr. Moore was told to cease all activity on the Property. Costs Incurred by Mr. Moore. Mr. Moore paid approximately $1,000,000.00 for the Property. The weight of the evidence failed to prove that this cost was incurred in reliance upon any representation from the City as to the use the Property could be put other than the existing zoning of the Property. Mr. Moore spent approximately $247,541.22, for demolition of existing buildings, site clearing and grading, engineering costs, fill, permitting fees and partial construction of the stormwater management system for the Property. Mr. Moore also donated an easement to the City with a value of approximately $26,000.00. The weight of the evidence failed to prove that these expenditures were made in reliance upon any representation by the City as to the use to which the Property could be put other than the existing zoning of the Property and the stormwater management permit. Mr. Moore also incurred approximately $100,000.00 in expenditures similar to those addressed in the previous finding of fact for which Mr. Moore was unable to find documentation. The weight of the evidence failed to prove that these expenditures were made in reliance upon any representation by the City as to the use to which the Property could be put other than the zoning of the Property and the stormwater management permit. Development of the Property Under the 2010 Comprehensive Plan. Mr. Moore's proposed development of the Property appears to meet the concurrency requirements of the Tallahassee-Leon County 2010 Comprehensive Plan. Mr. Moore's proposed development of the Property, however, appears to be inconsistent with the 2010 Plan because the Future Land Use Element district in which the Property is located does not permit industrial uses and the intended industrial use of the Property is incompatible with some of the uses to which adjacent property has been put. Procedure. Mr. Moore filed an Application for Vested Rights Determination prior to the filing of the application at issue in this proceeding. That application was denied by the City on October 16, 1991. In the first application Mr. Moore indicated that the Property was to be used for student housing. On or about November 13, 1991, Mr. Moore filed an Application for Vested Rights Determination (hereinafter referred to as the "Application") (Application VR0295T), with the City. "Devoe L. Moore" was listed as the owner/agent of the Property in the Application. It is indicated that the project at issue in the Application is "[i]ndustrial development of former Elberta Crate and Box Company site by Devoe L. Moore." "Progress . . . Toward Completion" is described as (1) Owner/contractor estimate; (2) Environmental Management Permit; (3) Site preparation from December, 1987, to the date the Application was filed; and (4) Construction of the stormwater system in 1990. In a letter dated February 6, 1991, Mr. Moore was informed that his Application was being denied. By letter dated February 18, 1991, Mr. Moore requested a hearing before a Staff Committee for review of the denial of his Application. On March 11, 1991, a hearing was held to consider the Application before the Staff Committee. The Staff Committee was comprised of Jim English, City Attorney, Mark Gumula, Director of the Tallahassee-Leon County Planning Department and Buddy Holshouser, Director for the City's Growth Management Department. At the conclusion of this hearing the Staff Committee voted 2 to 1 to deny the Application. By letter dated March 19, 1991, Mark Gumula, Director of Planning of the Tallahassee-Leon County Planning Department, informed Mr. Moore that the Application had been denied. By letter dated April 4, 1991, to Mr. Gumula, Mr. Moore appealed the decision to deny the Application. By letter dated July 3, 1991, the Division of Administrative Hearings was requested to provide a Hearing Officer to review this matter. By agreement of the parties, the undersigned allowed the parties to supplement the record in this matter on August 27, 1991. F. Other Projects Approved by the City. Mr. Moore submitted, without objection from the City, other vesting rights applications and final orders concerning such applications which were ultimately approved by the City. All of those cases are distinguishable from this matter. See the City's proposed finding of fact 30.
The Issue The issue in this case was to have been whether the evidence sustains the decision of the City of Clearwater Planning and Zoning Board to deny the application of the Appellant for a conditional use permit to sell alcoholic beverages for consumption at the Gallery Restaurant on Sand Key if a outside deck is added to the facility. However, a threshold issue is whether an appointed hearing officer has jurisdiction to decide the case.
Findings Of Fact The Appellant's desire to expand its Gallery Restaurant by adding an outside deck necessitated the filing of an application for a conditional use permit. The application was filed in August, 1994. The matter was presented to the Planning and Zoning Board (the Board) for decision at its meetings on October 18, November 1, and December 13, 1994, but was continued each time. Finally, at its meeting on February 14, 1995, the Board considered and voted to deny the application. On February 23, 1995, a Notice of Appeal was filed with the City Clerk for the City of Clearwater.
