01-000461 W. T. Cox, Jr., Individually And As Trustee; Priceco; Agnes T. May; John B. Whitaker And Betty Sue Whitaker vs. Lake County Status: Closed Recommended Order on Wednesday, July 25, 2001.

Summary: Property owners demonstrated excusable delay and no adverse impacts thereby justifying extension of time for complying with deadlines in development order.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

W. T. COX, JR., Individually )

and as Trustee; PRICECO; )

AGNES T. MAY; JOHN B. )

WHITAKER; and BETTY SUE )

WHITAKER , )

)

Petitioners , )

)

vs. ) Case No. 01-0461

)

LAKE COUNTY , )

)

Respondent. )

_______________________________)

RECOMMENDED ORDER

Pursuant to notice, this matter was heard on May 23,

2001, in Tavares , Florida, by Donald R. Alexander, the

assigned Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petition ers : Timothy A. Smith, Esquire

Akerman , Senterfitt & Eidson , P.A.

255 South Orange Avenue, 17th Floor

Orlando, Florida 32801-3414

For Respondent : Melanie N. Marsh, Esquire

Assistant County Attorney

Post Office Box 7800

Tavares, Florida 32778-7800

STATEMENT OF THE ISSUE

Whether Petitioners' Notice of Proposed Non-Substantial

Change should be approved, thereby extending the commencement

date and the first two phasing deadlines in their Development

Order by four years and 364 days, and extending the

termination date by eighteen months less two days.

PRELIMINARY STATEMENT

This matter began on November 6, 2000, when Petitioners ,

W. T. Cox, Jr., individually and as Trustee, Priceco, Agnes T.

May, John B. Whitaker, and Betty Sue Whitaker, filed a Notice

of Appeal with the Florida Land and Water Adjudicatory

Commission seeking to challenge a decision by Respondent, Lake

County, denying Petitioners' Notice of Proposed Non-

Substantial Change to a Development Order. By the change,

Petitioners sought to extend the build-out dates and all

related deadlines in their Development Order by four years and

364 days. On January 31, 2001, the appeal was forwarded to

the Division of Administrative Hearings with a request that

further proceedings be held.

By Notice of Hearing dated February 9, 2001, the matter

was scheduled for final hearing on May 15, 2001, in Tavares,

Florida. On the undersigned's own motion, the hearing was

rescheduled to May 23, 2001, at the same location.

At the final hearing, Petitioners presented the testimony

of Stephen H. Price, an attorney and son of one of the owners;

Hester Lilly, an administrative assistant to one of the

owners; Philip Tatich, a real estate attorney and trustee for

one of the owners; Steven C. Ruoff, a realtor and accepted as

an expert in real estate marketing, including the marketing of

large tracts of land for development as PUDs or DRIs; and

Greg A. Beliveau, a certified planner and accepted as an

expert in urban and regional planning. Also, they offered

Petitioners' Exhibits 1-63, which were received in evidence.

Respondent presented the testimony of Jeffrey S. Richardson,

the County's chief planner and accepted as an expert in urban

and regional planning.

The Transcript of the hearing (two volumes) was filed on

June 21, 2001. Proposed Findings of Fact and Conclusions of

Law were filed by Respondent and Petitioners on July 3 and 5,

2001, respectively, and they have been considered by the

undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of

fact are determined:

a. Background

1. In this land use dispute, Petitioners, W. T. Cox,

Jr., individually and as Trustee, Priceco (a Florida general

partnership), Agnes T. May, John B. Whitaker, and Betty Sue

Whitaker, have challenged a decision by Respondent, Lake

County (County), which denied their Notice of Proposed Non-

Substantial Change (NOPC). If approved, the NOPC would extend

by four years and 364 days the commencement date and the first

two phasing deadlines on a proposed project on their land,

along with an extension of the termination date by eighteen

months less two days.

2. Petitioners are the owners of several parcels of

property which make up a 1,433-acre tract of land east of the

City of Clermont and the Florida Turnpike and just west of

Lake Apopka in Lake County, Florida, known as Sugarloaf

Mountain. Much, if not most, of the land was formerly orange

groves, until a freeze destroyed the trees. W. T. Cox, Jr. is

the principal landowner in the group, with 900 of the 1,433

total acres for the project. Petitioners intend to sell their

separate parcels of property as a single parcel to a developer

who will build a large planned unit development on the

property.

3. Efforts to initially develop the property began on

February 19, 1991, when the County approved Planned Unit

Development Ordinace No. 9-91 for Sugarloaf Mountain

(Sugarloaf PUD). The Sugarloaf PUD contained no commencement

or termination date requirements or limitations.

4. On July 26, 1994, the County issued the Development

Order for the Sugarloaf Mountain Development of Regional

Impact (DO). An appeal of the DO was taken by the Department

of Community Affairs ( DCA) on September 23, 1994. By

agreement of the parties, the matter was submitted to binding

arbitration, and the sole issue was whether the project was

vested. This appeal was resolved by an Arbitrator's Order

dated October 16, 1995, which found that the property was

vested by common law, and that the project was accordingly

exempted from the density and intensity provisions of the

County's then current Comprehensive Plan.

5. On January 16, 1996, Petitioners and the County

entered into an agreement, recorded in the public records,

modifying the DO to conform to the terms of the settlement

with the DCA. Under the terms of the original DO, Petitioners

were obligated to "substantially proceed" with development

within five years of the effective date of the DO

(commencement date); otherwise, the development approval would

terminate. As a result of the arbitration, this date was

extended to December 18, 2000.

6. The term "substantially proceed" is defined in the DO

to mean "that the developer [has] constructed . . .

improvements that can be expected to generate at least 392 ADT

[average daily trips] . . . representing five percent of the

first phase of the development." This requirement translates

into approximately 40 conventional single-family homes, or 69

single-family homes for retirees. However, one could not

construct such homes before preparing a capital improvements

plan, and then providing substantial infrastructure

improvements in accordance with that plan, including onsite

road improvements, a stormwater management system, and a water

and sewer system for all or most of the project. Therefore,

all of these improvements would have to have been constructed

along with at least 40 homes by December 18, 2000 (the

commencement date), for the owners to have substantially

proceeded within the meaning of the DO, and to have had the

right to continue to develop the property.

7. Under Section V of the DO, the commencement date "may

be extended upon Lake County's finding of excusable delay, and

no adverse impacts resulting from the delay, in any proposed

development activity, consistent with the substantial

deviation provisions of subsection 380.06(19), Florida

Statutes." However, the DO does not define the term

"excusable delay," or provide any criteria for applying this

provision.

8. Due to various circumstances described in greater

detail below, development had not yet substantially proceeded

by January 2000. Accordingly, on January 19, 2000, or eleven

months prior to the required commencement date, Petitioners

filed their NOPC with the County seeking to extend all

deadlines by five years less one day. As required by law,

copies were also filed with the East Central Florida Regional

Planning Commission ( ECFRPC) and the DCA. As later slightly

modified at the request of the DCA, the NOPC requested an

extension of the commencement date and the first two phasing

deadlines by five years less one day, along with an extension

of the termination date by eighteen months less two days.

9. No substantive amendments were proposed in the NOPC.

That is, Petitioners did not request any amendment affecting

any of the criteria listed in the DCA's Substantial Deviation

Determination Chart, and all existing land use entitlement

quantities would remain unchanged.

10. After reviewing the NOPC, on June 22, 2000, the

ECFRPC advised the County by letter that because Section

380.06(19)(c), Florida Statutes, provided that "an extension

of less than five years is not a substantial deviation," it

concluded that "these proposed changes do not result in an

automatic substantial deviation determination pursuant to the

threshold criteria of section 380.06(19), Florida Statutes,

nor is it expected that it will cause new or increased impacts

to regional resources or facilities when considered

independently or cumulatively with prior project changes."

Therefore, the ECFRPC did not "recommend that this proposal be

submitted for additional regional review by this agency."

11. On February 29, 2000, the DCA advised the County by

letter that "the proposed extension of the date of the build-

out is not a substantial deviation and is not subject to a

public hearing."

12. The County also agreed that the NOPC was a

nonsubstantial deviation and therefore it did not require

further DRI review. However, the County required the NOPC to

be considered by its Board of County Commissioners (Board) at

a public meeting. Accordingly, on June 15, 2000, the County

placed the NOPC on its agenda for a public meeting on

September 26, 2000. At a meeting on September 19, 2000,

counsel for Petitioners requested a continuance due to the

unavailability of several key witnesses on the subject of

excusable delay. A request for a 60-day continuance was again

made at the outset of the meeting on September 26, 2000. Both

requests for a continuance were denied and Petitioners were

directed to present their case without the benefit of such

witnesses.

13. Speaking in opposition to the NOPC were the County's

senior director of growth management who pointed out generally

that the area in question was largely agricultural in nature

and the proposed intensity of the project was incompatible

with adjacent and adjoining land uses; that the 1991 PUD was

inconsistent with the comprehensive plan; that the general

welfare of the citizens should be taken into account when

considering the request; and that the applicant had not met

the burden of demonstrating substantial development. In

addition, a number of area residents and representatives of

organizations also spoke in opposition to the extension. They

generally opposed a large development in that area of the

County.

14. Speaking in support of the NOPC were Cecilia

Bonifay, Petitioners' counsel; Steven C. Ruoff, a realtor

involved in the project; Steven H. Price, an attorney and the

son of Karick Price, one of the owners; and John Reaves, a

potential buyer of the property. Those persons generally

pointed out that the principal owner (W. T. Cox, Jr.) was

elderly and in poor health, and that because of restrictions

in the original DO and the property's unusual location, the

owners had experienced difficulty in marketing the property to

a developer. They further pointed out that the property was

then under contract with a new developer, but that

insufficient time remained to comply with the commencement

date.

15. Thereafter, by a 5-0 vote, the County denied the

NOPC. Although the reasons for the denial were not clear, the

minutes of the meeting reflect that one Board member's

decision was based on the fact that he was unhappy with the

"proposed densities" of the project. Likewise, a second

member concluded that "the densities are currently too high"

and that "there has not been substantial proceeding on the

project." A third member also concluded that the applicant

had not "proceeded with the development." No reasons were

given by the other two members. Excusable delay was mentioned

by only one member, but the minutes do not reflect that

excusable delay was a consideration in that member's vote. It

is also fair to infer that at least some of the Board members

were unhappy with the earlier decision approving the PUD in

1991, a decision made when the Board had a mostly different

member composition.

16. A formal order memorializing the Board's decision

was never prepared. Relying on the minutes of the meeting as

the "order," on November 6, 2000, or within 45 days,

Petitioners filed their Petition for Appeal of a Development

Order with the Florida Land and Water Adjudicatory Commission

(Commission). Because Petitioners contended that the Board

hearing was neither fair nor complete, they requested that the

instant proceeding be conducted de novo , rather than simply a

review of the record below.

b. Criteria for an extension and the Board's past

practice

17. Section V of the DO provides the only criteria for

granting an extension. That provision reads in relevant part

as follows:

[The expiration date] may be extended on

Lake County's finding of excusable delay,

and no adverse impacts resulting from the

delay, in any proposed development

activity, consistent with the substantial

deviation provisions of subsection

380.06(19), Florida Statutes.

18. The County has no other criteria defining the

standards to be used in determining whether "excusable delay"

has been shown by an applicant. Indeed, its Comprehensive

Plan and Land Development Regulations do not contain any

definitions or criteria. Further, the Board has never made

any express findings on excusable delay or stated any criteria

for determining it in any amended development orders resulting

from extensions granted in other cases.

19. At the same time, there are no standards enuciated

in Chapter 380, Florida Statutes, nor are there any rules on

the subject. A request for an extension of the build-out and

commencement dates of a development order is subject to review

by the DCA and the regional planning council under the

substantial deviation provisions of Subsection 380.06(19),

Florida Statutes. However, if as here, the proposed request

is for an extension of one day less than five years, it is

conclusively not a substantial deviation under the statute.

For this reason, the practice of the DCA and ECFRPC has been

to grant such extensions automatically.

20. The Board has approved extensions of various

deadlines in four DRIs over the seven years before the current

request was heard by the Board. There is no evidence that the

Board has ever denied such a request. Based on this

consistent practice, Petitioners reasonably inferred in 1999

that obtaining the Board's approval of their request would be

routine.

21. On October 26, 1993, the Board approved a 54-month

extension for the Monterey/Royal Highlands DRI (Monterey). In

that case, the original owner (and applicant for an extension)

had sold the property to a new developer but then had to

foreclose on it when the buyer defaulted and went bankrupt.

Because of the automatic stay under the Bankruptcy Code, the

original owner could not re-obtain or exercise any control

over the property until the conclusion of bankruptcy

proceedings. In its approval, the Board recited the

bankruptcy as the reason for no construction having been

undertaken yet, but made no mention of excusable delay.

22. In another case in 1994 involving the Plantation at

Leesburg DRI (Plantation), the Board granted a request for an

extension of one day less than five years. While the DRI

admittedly did not include any language requiring a showing of

excusable delay, the minutes of the meeting reflect no

discussion of any standard for granting an extension. The

staff report did note, however, that the project was vested

and that the request was not a substantial deviation, even

though it included a revision of the master plan of the DRI.

23. In 1997, the Board granted an extension for the

Southlake Florida Quality Development (Southlake), which was

subject to requirements similar to those for DRIs. There,

without any mention of excusable delay, the Board approved a

staff recommendation that a 10-year extension be granted for

the purpose of " allow[ ing] for continuation and completion of

the project on a more realistic basis" than originally

proposed. Like the Monterey and Plantation extensions, the

Board did not employ any stated standard in reaching its

decision on the Southlake extension.

24. In March 2000, the Board approved an extension for

the Pennbrooke Fairways DRI (Pennbrooke), a project which had

already constructed some 400 units, a golf course, and other

amenities. The Pennbrooke development order contained an

"excusable delay" standard almost identical to the one in

issue here. In recommending approval of an extension of five

years less a day, the staff noted that the project was vested,

that the request was for a nonsubstantial amendment, and that

the developer was requesting the extension because of

"changing economic and other conditions." The recommendation

was accepted, but the minutes of the meeting do not reflect

that there was any discussion of the merits of the requested

extension or any mention of excusable delay.

25. In each of the four cases, either the minutes or the

staff reports emphasized that the requested extensions were

nonsubstantial amendments to the original approvals, and some

mention is made of the fact that the projects were vested,

though without explanation of the weight given that factor, or

any other. In three of the four cases, the requested

extension was for less than five years (while the fourth was

for ten). Although three of the four development orders

include an excusable delay standard, all four cases omit any

findings on excusable delay or any other standard for an

extension. Admittedly, some development had taken place in

three of the four cases, but the County concedes it had not

reached the level specified in the development orders, and

there is no indication in the record that the County relied on

this fact in determining whether to grant an extension.

Finally, even though none of the cases makes clear the Board's

basis for approving an extension, in two cases the reason

given by the applicant was lack of control over the property

due to bankruptcy, in another case the applicant cited the

need for a more realistic schedule for construction, and in

the remaining case the applicant cited "the other changing

economic and other conditions."

26. Although the County's practice in granting

extensions, and denying this one, has not been clear and

consistent, it does show that before the instant decision the

standard was not strict and the bar was not high. Indeed, the

County generally took into account a project's vested status

and the finding of the state agencies that a request was not a

substantial deviation. The Board never made findings on

excusable delay and never formulated or followed any criteria

for determining it. Nor did the Board consider whether

adverse impacts would result from the delay, or whether

circumstances had changed enough to warrant further review, as

specified by the standard in each development order.

c. The applicant's excusable delay .

27. Although Petitioners did not begin construction

within five years of obtaining the DO, they did make an effort

to implement the DO but were unable to do so at once, for two

reasons. First, the health of the principal owner and leader

of the group, W. T. Cox, Jr., had grown increasingly impaired

during 1996, the first year under the DO, impeding

communications and decision-making in the group. Second,

through discussions with County officials, the owners learned

that they had insufficient resources to carry out the

development by themselves. They then concluded that they must

market the property so as to attract a joint venturer who

could bring substantially more financial resources and

development experience to the venture, or to sell the property

outright to a large development company with the necessary

resources.

28. The leader of the group from its inception was Mr.

Cox, who had approached Mr. Karick Price (the owner of 500

acres ) with the original idea for the development. Mr. Cox

had substantial development experience and access to financial

resources. However, at about the same time the DO became

effective in late 1995, Mr. Cox's health began to deteriorate,

along with his ability to conduct business. In 1996, he

suffered a stroke, and his condition worsened. In 1997, it

became necessary for Mr. Cox to rely almost exclusively on a

local attorney, Phillip Tatich, to assist him in his work

activities. Mr. Tatich was later appointed a co-trustee of

Mr. Cox's living trust in February 1998, after which he took

over Mr. Cox's responsibilities in the group.

29. During those same two years after the effective date

of the DO, Mr. Price's health also deteriorated (due to

multiple sclerosis), and his son Steven was asked to take over

the responsibility for the family's interests in the DRI.

Although Steven Price is an attorney, he does not specialize

in land use or have experience in developing property.

Consequently, he deferred to Mr. Cox, whose own health was on

the decline.

30. After Mr. Tatich became co-trustee for Mr. Cox in

early 1998, he began to familiarize himself with the various

properties in Mr. Cox's portfolio. By July 1998, Mr. Tatich

was fully knowledgeable about the requirements of the DO and

the options available to Petitioners.

31. Despite the health problems with Mr. Cox, during

1996 and 1997, the owners were not idle. First, in early 1996

they negotiated an agreement with the DCA which clarified the

meaning of several requirements in the DO. They also

attempted to complete the sale of the property to a Euro-

Canadian group of investors. After that deal fell through,

Petitioners began to negotiate with the Barclay group, which

resulted in a signed contract, but did not lead to a closing.

At about the same time, a DRI expert advised Petitioners about

the DO's requirements for capital improvements, the lack of

clarity about the extent of those requirements, and the need

for prompt action to meet the commencement date.

32. Based on the expert's report, Petitioners decided

that they had to focus their efforts on marketing the

property, or to sell the property to a developer who could

make use of the DRI entitlements. Given the proximity of the

commencement date, Petitioners elected to market the property,

hoping to attract a joint venturer to provide the experience

and funding they lacked.

33. In September 1997, Petitioners signed a formal

listing agreement with Realvest Partners, Inc. ( Realvest), a

Maitland, Florida firm that specializes in appraising and

developing large tracts of land for development purposes.

Realvest did everything reasonable to market the property.

Among other things, the listing broker (Mr. Ruoff ) persuaded a

number of other landowners to agree to an assemblage of their

properties with the Sugarloaf property, for purposes of

marketing an even larger tract (4,000 acres) that would have

direct access to the Florida Turnpike and adjoin the city

limits of Minneola and Clermont .

34. Mr. Ruoff met more than 100 times with prospective

buyers and showed the property at least 50 times over the two

years that he marketed the property. This work generated a

number of offers, including offers from Arvida and the Del

Webb Corporation, each of which had the resources to develop

such a large tract of property. Although each company came

close to reaching a signed contract with the owners of the

assemblage, both deals fell through because of the

unreasonable demands of one of the assemblage owners (not a

Petitioner). Neither company was willing to purchase the

Sugarloaf property by itself, primarily because of its lack of

access to major roads.

35. Despite these failures, Petitioners continued to

search for a buyer for the Sugarloaf property, and they

negotiated with several other groups. After 6 to 8 months of

negotiations, the Groner-Reaves group (in which Arnold Palmer

is associated) signed a purchase contract in June 2000, which

remains pending until this proceeding is concluded.

36. Although the County witness asserted that the

property was " unsalable," the owners were not responsible for

that characteristic of the property, and they did all that

they could do to sell their property alone and in an

assemblage. As noted above, they eventually succeeded in

securing a purchase contract. The unsalability of the

property confirms the fact that a delay in selling the

property was beyond Petitioners' control and thus excusable.

37. Petitioners' decision not to start construction was

reasonable even after Mr. Tatich joined the group as Mr. Cox's

trustee. This is because in February 1998, he lacked the

knowledge to make a sensible recommendation. After learning

of the DO's requirements, he concurred in the owners' previous

conclusion that without Mr. Cox, the other group members

lacked the resources and experience to substantially proceed

with construction on their own.

38. In addition, even assuming that Petitioners could

have mustered the enormous amount of resources required just

to proceed with construction and meet the commencement date,

starting construction would have established a particular

pattern of development that could have clashed with the plans

of some prospective purchasers in what was already a very

narrow market.

39. In summary, the delay in development activity was

excusable due to the health impairment of Mr. Cox, the lack of

financial resources and development experience of the other

owners, the complexity of the DO and the unusual capital costs

associated with the DRI, and the difficult marketing

conditions for the property. All of these reasons exemplify

factors beyond the control of the owners, and some of them

were unforseen.

d. No adverse impacts

40. Petitioners also demonstrated that no adverse

impacts would result from the delay. The request changes no

substantive condition of the DO and generates no new impact of

any kind. Also, Petitioners rebutted the County's own

contrary evidence on this issue. At the hearing, the County

speculated that the delay might cause a potential adverse

impact on the nearby roads by delaying the time when the

owners would have to pay for the expensive offsite road

improvements on County Roads 561, 561A, and 455, as well as

for a Turnpike interchange. The County reasoned that while

the development is continuing in the surrounding area, traffic

generated by such offsite development is increasing and could

possibly exceed the established level of service for each of

those roads before Sugarloaf makes the improvements.

41. Petitioners established that the County's concern

was no more than speculation and that the roads in question

have more than enough capacity to absorb growth well above the

combined current rate in the area and proposed buildout for

Phase I of 660 houses over the next five years. Moreover,

whatever impacts have occurred in the past five years are not

attributable to Sugarloaf, which has generated no traffic.

Therefore, no adverse impacts will occur by virtue of granting

the request.

CONCLUSIONS OF LAW

42. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties hereto

pursuant to Sections 120.569 and 120.57(1), Florida Statutes

(2000).

43. Section 380.07(1), Florida Statutes (2000),

authorizes the filing of an administrative appeal from "any

development order . . . in regard to any development of

regional impact." Here, Petitioners have filed an appeal of

the County's denial of their request to extend the DO. The

written minutes of the meeting in which the County denied the

request constitute the development order under appeal.

44. Because the parties were unable to agree that the

hearing before the County was fair and complete, the matter

has been tried as a de novo case. See Rule 42-2.002(1)(b),

Florida Administrative Code.

45. As the parties asserting the affirmative that the

denial of their request did not comport with the law,

Petitioners bear the burden of proving by a preponderance of

the evidence that the requested NOPC should be approved.

Young v. Dep't of Comm. Affairs , 625 So. 2d 831, 835 (Fla.

1993).

46. Section 380.07(5), Florida Statutes (2000), provides

the criteria for decision in an administrative appeal such as

this. That statute reads as follows:

(5 ) The Florida Land and Water

Adjudicatory Commission shall issue a

decision granting or denying permission to

develop pursuant to the standards of this

chapter and may attach such conditions or

restrictions to its decisions.

47. Chapter 380, Florida Statutes, provides the general

criteria while the DO provides the specific standard for

extending its terms. However, at the hearing and in the

prehearing stipulation, the County raised no issue concerning

the compliance of the requested extension with any of the

general criteria, including consistency with the County's

comprehensive plan and land development regulations, neither

of which specifically addresses DRI extensions or imposes any

substantive requirements on them. Thus, the parties agree

that the only pertinent standard is in Section V of the DO,

which requires a finding of excusable delay and the absence of

adverse impacts from the delay.

48. The County concedes that it has no express criteria

for determining when excusable delay has been shown. However,

it contends that implied criteria for excusable delay may be

derived from past actions of the Board. More specifically, in

three of the four cases in which an extension of deadlines in

a DO has been granted, construction had already commenced to

some degree, and that it can be fairly implied that in order

to show excusable delay, some construction must be in place.

From this, the County concludes that unless Petitioners could

demonstrate that construction had begun, as they obviously

failed to do, "no other excuse was valid." This contention

squares with comments made by two Board members at the meeting

on September 26, 2000, that Petitioners "had not substantially

proceeded with the development" and that "there has not been

substantial proceeding on the project," as reasons for the

denial.

49. But requiring Petitioners to substantially proceed

as a condition of showing excusable delay would render

nugatory the provision on extensions in the DO, at least for

extensions of the commencement date. In other words, had the

owners substantially proceeded, they would have been entitled

to continue developing the property without an extension until

the termination date.

50. In addition, the record shows that it was

unreasonable for the owners to commence development on the

project simply to show excusable delay. Even if Petitioners

had the enormous amount of resources necessary to construct

the capital improvements before minimal development could

occur, in all likelihood this would have jeopardized their

efforts to then sell the property to a prospective purchaser

with different development plans.

51. Alternatively, the County contends that the evidence

presented by Petitioners does not amount to excusable delay,

or show that no adverse impacts will occur. First, the County

has argued that the health conditions of Mr. Cox did not

affect Petitioners' ability to develop the property,

especially since Mr. Tatich was appointed a co-trustee of the

property almost three years prior to the termination date of

the DRI. The County also suggests that Petitioners' failure

to meet the commencement date was due to their own negligence

since they refused to sell their property at a discounted

price, or to sell a small part of the land in order to "jump-

start" the project, when efforts to sell at a higher price

were unsuccessful. The County further contends that after

various marketing efforts failed, Petitioners should have

pursued physical development of the property in order to meet

the deadline. Finally, on the issue of adverse impacts, the

County asserts that impacts to the surrounding road system

will likely result from the delay.

52. As to these contentions, it was found that

Mr. Tatich did not become familiar with the requirements of

the DO until at least mid-1998; from that point on, he

concurred in the group's decision that they lacked the

necessary resources to develop the property themselves, and

that the property should be marketed or sold to a third party.

As to the second contention, the County has cited no authority

for the proposition that negligence (and thus a lack of

excusable delay) can be imputed to an owner who declines to

sell his property at a discounted price simply to avoid a

commencement date in the DO. Further, as noted above, the

evidence shows that Petitioners lacked the financial resources

to build the infrastructure necessary for the first phase of

development to meet the commencement date of the DO. Even if

they could have, starting construction would have established

a particular pattern of development that would likely clash

with the plans of prospective purchasers. Finally, the

evidence demonstrates that the request changes no substantive

condition of the DO, and that the roads in question have more

than enough capacity to absorb growth well above the combined

current rate and proposed build-out for Phase I of 660 houses

over the next five years.

53. The term "excusable delay" is not defined, and there

are no standards that have been enunciated by the County.

Within the context of the DO, the most reasonable and logical

meaning of the term is a postponement of development activity

resulting from extenuating circumstances that constitute a

good and sufficient reason, or justification, to exempt the

delay from the consequences that would otherwise apply. In

view of the County's past practice in applying the standard of

excusable delay, it is unnecessary to resort to principles of

statutory construction to understand the core meaning of the

term. Here, the problem is not with any ambiguity in the

term, but rather with the lack of express criteria for

determining it. Indeed, the County's consistent practice has

been to require little or no justification for extending a

DRI, without ever making findings on excusable delay.

54. For the reasons expressed in the Findings of Fact,

it is concluded that the owners have met their burden of proof

and shown compliance with the standard in the DO for approving

the requested extension. That is to say, Petitioners have

demonstrated excusable delay and that an extension will not

cause an adverse impact. Therefore, the request should be

approved.

55. Finally, Petitioners' Motion to Strike or Exclude

From Evidence is granted. The motion is directed to a number

of letters from area residents which were submitted after the

record in this matter was closed. Those documents have not

been considered by the undersigned in the preparation of this

Recommended Order.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that the Florida Land and Water Adjudicatory

Commission issue a final order approving Petitioners' Notice

of Proposed Non-Substantial Change.

DONE AND ENTERED this 25th day of July, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

DONALD R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone] , SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 25th day of July, 2001.

COPIES FURNISHED:

Donna Arduin, Secretary

Florida Land and Water Adjudicatory Commission

Office of the Governor

Room 2105, The Capitol

Tallahassee, Florida 32399-0001

Charles T. Canady, General Counsel

Office of the Governor

Room 209, The Capitol

Tallahassee, Florida 32399-0001

Timothy A. Smith, Esquire

Akerman , Senterfitt & Eidson , P.A.

255 South Orange Avenue, 17th Floor

Orlando, Florida 32801-3414

Melanie N. Marsh, Esquire

Post Office Box 7800

Tavares, Florida 32778-7800

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any

exceptions to this Recommended Order should be filed with

agency that will issue the final order in this case.