00-003907 Meadowbrook Neighborhood Association, Inc.; Victor Cordiano; Lynn Hill; A. A. Sulkes; Philip Bennett; Vera Harper; And Carlos Mcdonald vs. City Of Tallahassee; George K. Walker, Trustee; Genesis Group; And Ttk, L.L.C. Status: Closed Recommended Order on Thursday, February 8, 2001.

Summary: Process used by city to vest property in 1991 was procedurally correct; challenge to 1991 vesting order not sustained; property exempt form comprehensive plan.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MEADOWBROOK NEIGHBORHOOD )

ASSOCIATION, INC.; LYNN )

HILL; A.A. SULKES; PHILIP )

BENNETT; VERA HARPER; and )

CARLOS McDONALD, )

)

Petitioners, )

)

vs. ) Case No. 00-3907

)

CITY OF TALLAHASSEE; GEORGE K. )

WALKER, TRUSTEE; GENESIS )

GROUP; and TTK, L.L.C., )

)

Respondents. )

________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this

case on January 5, 2001, in Tallahassee, Florida, before

Donald R. Alexander, the assigned Administrative Law Judge of

the Division of Administrative Hearings.

APPEARANCES

For Petitioners: Kenneth D. Goldberg, Esquire

1725 Mahan Drive, Suite 201

Tallahassee, Florida 32308-5201

For Respondent: Linda R. Hurst, Esquire

(City) City Hall, Second Floor

300 South Adams Street

Tallahassee, Florida 32301-1731

For Respondents: Jay Adams, Esquire

(Walker and Broad and Cassel

others) 215 South Monroe Street, Suite 400

Tallahassee, Florida 32301-1804

STATEMENT OF THE ISSUE

The issue is whether the site plan for the Evergreens

project should be approved.

PRELIMINARY STATEMENT

This matter began on July 28, 2000, when the

Developmental Review Committee of Respondent, City of

Tallahassee, approved a site plan for a project which involved

the construction of 416 apartment units on approximately 24.56

acres of land located just south of East Mahan Drive,

Tallahassee, Florida. In approving the application, the

Committee determined that the project was exempt from

consistency and concurrency requirements of the Comprehensive

Plan by virtue of its vested status, as reflected in a

Stipulation and Settlement Agreement entered in DOAH Case No.

91-4109VR.

On August 28, 2000, Petitioners, Meadowbrook Neighborhood

Association, Inc., Victor Cordiano, Lynn Hill, A. A. Sulkes,

Philip Bennett, Vera Harper, and Carlos McDonald, who

represent, or are, residents who live in the area, filed their

Petition for Formal Proceedings with the Tallahassee-Leon

County Planning Commission to contest that decision. Victor

Cordiano was later withdrawn as a party. Pursuant to its By-

Laws, the Commission then referred the matter to the Division

of Administrative Hearings on September 20, 2000, with a

request that an Administrative Law Judge be assigned to

conduct a formal hearing.

Respondents' Motion to Dismiss the petition for lack of

jurisdiction was heard on October 18, 2000, and was denied by

Order dated October 25, 2000. Thereafter, the matter was

scheduled for a final hearing on November 29, 2000, in

Tallahassee, Florida. At Petitioners' request, the matter was

rescheduled to December 11, 2000, at the same location. By

ore tenus motion made on December 8, 2000, the City of

Tallahassee moved for another continuance on the ground that

the hearing had not been advertised in a local newspaper, as

required by its Code of Ordinances. Accordingly, the final

hearing was rescheduled to January 5, 2001. Finally,

Petitioners' Motion in Limine to exclude two issues raised by

Respondents in the Joint Pretrial Statement was denied.

At the final hearing, Petitioners presented the testimony

of Sarah Cawthon, president of the Meadowbrook Neighborhood

Association, Inc., and Dorothy Inman-Crews, a former City

Commissioner. Also, they offered Petitioners' Exhibits 1-20,

which were received in evidence. Respondent, City of

Tallahassee, presented the testimony of Dwight R. Arnold, Jr.,

Land Use and Environmental Services Administrator, and James

R. English, City Attorney and accepted as an expert in

municipal law. Also, it offered City Exhibits 2-16. All

exhibits were received in evidence. Exhibits 4 and 11 are the

depositions of John Davis and Tom Printy, respectively, both

City employees. Respondents, George K. Walker, Genesis Group,

and TTK, L.L.C., presented the testimony of George K. Walker.

They also offered Respondents' Exhibits 1 and 2, which were

received in evidence.

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

January 23, 2001. Proposed Findings of Fact and Conclusions

of Law were filed by the parties on January 22, 2001, and they

have been considered by the undersigned in the preparation of

this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, including the stipulation

of counsel, the following findings of fact are determined:

a. Background

1. 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.

2. 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.

3. 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.

4. 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.

b. The parties

5. 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.

6. 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.

7. During the course of the hearing, Respondents

stipulated to the standing of all Petitioners.

8. 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.

9. 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.

10. 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.

11. 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.

c. The property and its history

12. 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.

13. 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.

14. 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.

15. 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.

16. 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.

17. 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.

18. 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.

19. 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.

20. 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.

21. 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.

22. 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.

23. 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.

24. 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.

25. 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.

d. The City's vesting process

26. 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.

27. 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.

28. 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.

29. 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.

30. 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.

31. 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.

e. Walker's application for vested rights

32. 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.

33. 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.

34. 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.

35. 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.

36. 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.

37. 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.

38. 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.

39. 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.

40. 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.

41. 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.

42. 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.

43. 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.

44. 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.

45. 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.

46. 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."

47. 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.

48. 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.

49. 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.

f. Expiration of vested rights

50. 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.

51. 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."

52. 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.

53. 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."

54. 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.

55. 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.

g. Equitable estoppel

56. 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.

57. 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.

58. 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.

59. 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.

60. 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.

61. 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.

h. Other contentions

62. 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.

63. 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.

CONCLUSIONS OF LAW

64. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties hereto

pursuant to Article XXIV, Sections 24.1 et. seq. , Tallahassee

Code of Ordinances.

65. Section 24.3.C. provides in part that a decision of

the DRC

become[s] final fifteen (15) calendar days

after [it is] rendered unless a party files

a notice of intent to file a petition for

formal proceedings in accordance with the

bylaws and completes the application by

filing a petition for formal proceedings

within thirty (30) calendar days after the

decision is rendered.

66. Here, a Notice of Intent to File a Petition for

Formal Proceedings and a Petition for Formal Proceedings were

timely filed by Petitioners. Once a standing determination is

made, as it was here, Section 24.3.C. provides that the

Commission shall "conduct [ de novo ] quasi-judicial proceedings

in accordance with section 24.6 below." Among other things,

Section 24.6.B. authorizes the Commission to "contract with

the Division of Administrative Hearings for [administrative

law judges] to conduct hearings on petitions for formal

proceedings filed pursuant to subsection 24.3.C. above."

67. While Section 24.6. fails to address the burden of

proof in a Commission land use proceeding, the party seeking

approval of a Type B site plan application should logically

bear the burden of proving by a preponderance of the evidence

that it is entitled to approval of the application. See ,

e.g. , Durward Neighborhood Assoc., Inc. et al. v. City of

Tallahassee et al. , DOAH Case No. 98-4234 (City of Tall.-Leon

Cty Plan. Comm., October 5, 1999). Thus, Respondents are

required to present a prima facie case of entitlement, taking

into account the objections raised by Petitioners.

68. In their complaint, Petitioners allege that various

procedural requirements in the Ordinance were not met when the

Settlement Agreement was executed, and therefore the

Settlement Agreement is not valid. More specifically, they

contend that the City Attorney had no authority to settle

pending litigation in DOAH Case No. 91-4109VR without prior

City approval; that the DOAH hearing officer was required to

conduct a de novo hearing before the vested rights

determination could be made; that Walker applied for common

law vesting in DOAH Case No. 91-4109VR, but the Settlement

Agreement determined that his property was presumptively

vested, a type of vesting different from that applied for; and

that the City had insufficient evidence before it to make a

determination that the necessary infrastructure for the

subdivision was in place. They also contend that the

Settlement Agreement is a final development order as defined

by the Ordinance, and because Walker failed to commence and

continue substantial development within one year following its

issuance, the development order has expired. Finally, the

undersigned has rejected as being untimely a contention that

the 1989 resubdivision of the property subjects the property

under review to the consistency and concurrency provisions in

the City's Comprehensive Plan.

69. Initially, it is noted that virtually all of

Petitioners' contentions turn on a proper interpretation of

relevant sections of the Ordinance. As the local government

charged with the responsibility of interpreting and enforcing

the Ordinance, the City should be accorded deference in how it

interprets the Ordinance, unless its interpretation is shown

to be plainly erroneous. Compare , e.g. , Little Munyon Island

v. Dep't of Envir. Reg. , 492 So. 2d 735, 737 (Fla. 1st DCA

1986) (state agency determination with regard to a statute's

interpretation and applicability will receive great deference

in the absence of clear error or conflict with legislative

intent). Here, the undersigned has accepted the City

Attorney's expert testimony as being the most persuasive on

this issue.

70. Petitioners first contend that the City Attorney

lacked authority to settle a vested rights case without prior

City Commission approval. While it is true that the Ordinance

does not contain a specific grant of authority to the City

Attorney, or his designee, to settle vested rights cases, the

more persuasive testimony supports a conclusion that he

possesses such inherent authority. Indeed, the accepted

evidence shows that for more than 25 years, the City Attorney

has had the inherent authority to settle those matters having

no fiscal impact without prior City Commission approval.

There was no credible evidence to contradict this finding.

71. Petitioners also contend that because Walker applied

for common law vesting, the Settlement Agreement is invalid

because it found the property to be presumptively vested.

Again, however, the more persuasive evidence shows that there

is no practical distinction between exempt or vested property.

In either case, any development on the property would be

reviewed as vested. Therefore, the fact that the relief

granted in the Settlement Agreement varied in that respect

from the relief sought in the application does not affect its

validity.

72. Petitioners further contend that the Settlement

Agreement is invalid since the Ordinance contemplates that a

formal hearing on the facts underlying the approval of vested

rights must be held, and that a settlement by the parties does

not obviate the need for a hearing. As noted in the Findings

of Fact, however, once the parties settle a matter, there

would be no purpose in them going through the hearing process

except to announce to the tribunal that the matter had

settled. Were this not so, the parties would be required to

expend time, money, and resources when no disputed issue of

fact existed. Such a construction of the Ordinance is

illogical and unreasonable and would produce an absurd result.

Finally, the undersigned notes that Leon County, which has an

identical vesting ordinance and shares the Planning Department

with the City, has construed its ordinance in the same manner

and settled at least two vesting cases without a formal

hearing. See DOAH Case Nos. 91-0355VR and 91-4106VR.

73. Petitioners next contend that because the on-site

infrastructure for the individual apartment buildings was not

complete as of July 16, 1990, the property cannot qualify for

vesting. Again, the more persuasive evidence shows that in

order to satisfy the Ordinance, only the infrastructure

necessary to serve the subdivision is required. Here, the

record clearly demonstrates that the stormwater drain, water

and sewer utilities, and Riggins Road were complete well

before the cut-off date for vesting.

74. Petitioners' final contention is that the Settlement

Agreement constitutes a final development order within the

meaning of the Ordinance, and that it expired one year after

issuance because there was no continuous construction on the

site. Although the Ordinance is not a model of clarity in

this respect, for the reasons set forth in Findings of Fact

50-55, this argument must also fail.

75. In light of the above conclusions, it is unnecessary

to reach the issues of whether the City is equitably estopped

to deny the validity of the Settlement Agreement or, assuming

that the Settlement Agreement is invalid, Walker would now

qualify for vesting.

76. Finally, Petitioners should not be faulted for

bringing this action. Their concerns were genuine and well-

founded, for few, if any, homeowners relish the thought of

having a 416-unit apartment complex in their back yard. Under

the circumstances presented here, however, no relief is

available.

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

[phone] SUNCOM 278-9675

Fax Filing [phone]

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

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 the

agency that will issue the final order in this matter.