03-001113VR Robert A. Mason vs. Clay County Status: Closed DOAH Final Order on Friday, May 23, 2003.

Summary: Applicant entitled to Vested Rights Certificate where he acted in good faith and reasonably relied on acts of County in approving prior development activity.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT A. MASON, )

)

Petitioner, )

)

vs. ) Case No. 03 - 1113VR

)

CLAY COUNTY, )

)

Respondent. )

__________________________________)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings,

by its designated Administrative Law Judge, Richard A. Hixson,

held a final hearing in the above - styled case on April 23, 2003,

in Green Cove Springs, Florida.

APPEARANCES

For Petitioner: Dale S. Wilson, Esquire

Post Office Box 1808

Green Cove Springs, Florida 32043

For Respondent: Mark Scruby, County Attorney

Clay County

Post Office Box 367

Green Cove Springs, Florida 32043 - 0367

STA TEMENT OF THE ISSUE

The issue for determination in this matter is whether

Petitioner, Robert A. Mason, has demonstrated, pursuant to the

Vested Rights Review Process of Clay County, Florida, that a

vested rights certificate to undertake development of cert ain

real property located in Clay County should be issued by Clay

County, notwithstanding that part of such development will not be

in accordance with the Clay County Comprehensive Plan.

PRELIMINARY STATEMENT

On or about March 5, 2003, an Application for V ested

Property Certificate for Claims of Equitable Vested Rights

Pursuant to Future Land Use Policy 1.8, Clay County Comprehensive

Plan, was filed with the Clay County Department of Planning and

Zoning by Petitioner, Robert A. Mason, as owner of a developm ent

named Cypress Landing. Petitioner also filed supporting

documentation with the Application. On or about March 25, 2003,

Respondent, Clay County, referred the Application and supporting

documentation to the Division of Administrative Hearings for the

assignment of an administrative law judge.

Pursuant to written notice, a hearing was held on April 23,

2003, to afford Petitioner the opportunity to offer the

A pplication and supporting documentation into evidence and to

supplement the record with addition al evidence. The hearing also

afforded the Respondent an opportunity to be heard and provide

evidence to supplement the record. Finally, the hearing was held

to give the undersigned an opportunity to ask questions

concerning the Application.

The hearin g was conducted in accordance with the Vested

Rights Review Process of Clay County, Florida, as adopted by Clay

County Ordinance 92 - 18, and as amended by Ordinances 92 - 22, 92 -

29, 93 - 26, 94 - 25, and 96 - 21. At the hearing, Petitioner offered

six exhibits whi ch were accepted into evidence without objection:

Exhibit 1 is the composite Application and supporting

documentation which consist of the Application and 18 supporting

documents; Exhibit 2 is a survey of the property prepared by

McKee, Eiland & Mullis, i dentifying specific trees on the Cypress

Landing property; Exhibit 3 is Petitioner's summary of expenses

related to Cypress Landing; Exhibit 4 is a 1950 plat of the

Hollywood Forest Subdivision; Exhibit 5 is a copy of pictures

which appeared in Southern Li ving magazine; and Exhibit 6 is a

composite of two pictures of the Cypress Landing sign.

Petitioner presented the testimony of Keith Joseph McCammon,

a certified arborist and member of the International Society of

Arborculture; Petitioner, Robert A. Mason; and Petitioner's wife,

Marilyn Mason. Respondent presented the testimony of

Shawanda Watson, Planner II with the Clay County Department of

Planning and Zoning. Also in attendance at the hearing was

Thad Crowe, Planning Director with the Clay County Depa rtment of

Planning and Zoning.

No transcript of the hearing was ordered by the parties. On

May 8, 2003, Petitioner filed a Motion for Extension of Time in

which to file a Proposed Final Order, which motion was granted

without objection. On May 19, 2003, Petitioner and Respondent

filed J oint Post Hearing Stipulations. On May 19, 2003,

Petitioner filed a Proposed Final Order. The Proposed Final

Order and Joint Post Hearing Stipulations have been fully

considered in entering this Final Order. Respondent d id not file

a Proposed Final Order; however, at the conclusion of the

presentation of the evidence at hearing, the Respondent stated

that Clay County did not object to the approval of Petitioner's

Application for Equitable Vested Rights.

FINDINGS OF FACT

A. The Property

1. The Applicant, Petitioner Robert A. Mason, is the owner

of real property located in Clay County, Florida. The

Applicant's property is known as "Cypress Landing," containing

5.977 acres, which consists of a rectangular tract 200 feet by

approximately 841 feet in the Hollywood Forest Subdivision,

bounded on the east by the west shore of the St. Johns River, and

on the west by the right - of - way for Peters Avenue, now known as

Harvey Grant Road.

2. The Applicant acquired the property on July 25, 1958, by

warranty deed from Victor M. and Ruth C. Covington recorded in

Official Records Book 3, page 250, public records of Clay County,

Florida. The property was the south 1/2 of Lot 12, Lot 12 - A, and

Lot 13, and the north 1/2 of Lot 14 of Holl ywood Forest, a

platted subdivision on Fleming Island in Clay County. At the

time Petitioner acquired the property, the applicable zoning

district permitted the development of the property for single -

family residential at a maximum density of three units per acre.

3. When the Applicant originally acquired the property in

1958, he and his wife had intended at some future time to live on

the property and use the property for their own purposes,

including recreation, keeping horses, and retirement. At the

time the Applicant acquired the property there was an existing

dock extending from the property into the river.

4. Due to subsequent changes in his employment

circumstances, the Applicant did not build a residence on the

property. The Applicant is a reg istered forester who retired

from the Georgia Forestry Commission after 32 years of service.

The Applicant and his wife currently reside in Georgia.

5. Cypress Landing contains a multitude and variety of

trees, including magnolia, Florida holly, live oak and cypress,

many of which are more than 200 years old and have diameters in

excess of 36 inches. The Applicant has taken great care and

followed specific conservation measures to identify and preserve

the historic trees on the property.

B. Development o f the Property

6. In 1982 - 1983, the Applicant prepared a development plan

for the Cypress Landing property which comprised a single - family

residential development. The planned development consisted of a

total of seven single - family lots, two of which fa ced the river,

and the other five which were 122 feet by 200 feet and lay side

by side between the road and the waterfront lots. The

development plan included an easement (the " R oad E asement") for

ingress, egress, drainage and utilities along the northern

waterfront lot into the southern waterfront lot. From the east

end of the R oad E asement, an additional pedestrian easement was

provided along the northern ten feet of the southern waterfront

lot for pedestrian access to the river.

7. The A pplicant e mployed a surveyor, McKee, Eiland &

Mullis, Land Surveyors Inc., of Orange Park, Florida. The

Applicant instructed the surveyor to plat the property in

accordance with the development plan and all existing codes. The

property was thereafter subdivided in to seven lots, identified as

Lots A, B, C, D, E, F, and G. Lots A through E are the inland

lots and each measure 122 feet by 200 feet with a 30 feet non -

exclusive easement for ingress, egress, drainage and utility

purposes. Lots A through E are inland lo ts. Lots F and G are

the waterfront lots which are slightly larger than the other five

lots and not as uniform in configuration. Lot F has

approximately 116 feet of water frontage and Lot G has

approximately 97 feet of water frontage.

8. In 1984, relyi ng on the applicable zoning regulations,

the Applicant contracted with Robert Bray to install a roadway

which is 30 feet in width and 866 feet in length running along

Lots A through E and ending at Lot F. The roadway was

constructed with specific concern for the protection and

preservation of the trees on the property. A pre - cast concrete

curb running the entire length of the roadway was installed to

protect the trees from runoff. Porous rock was used as the

foundation of the roadway to promote proper dr ainage. The

roadway was also constructed with an ellipsis at Lot C to protect

a historic tree. The design of the roadway, as well as the

materials used in building the roadway, met all Clay County code

requirements at the time of construction.

9. In 19 84, the Applicant reconstructed the dock on the

property. The dock had previously been damaged due to storms.

The dock was reconstructed by Duke Marine Construction in

accordance with all appropriate regulations. Covenants have been

executed to allow for use of the dock as a community dock for all

lot owners. The community dock is 300 feet in length.

10. Also in 1984, the Applicant erected a sign indicating

the entrance to Cypress Landing. The sign was later vandalized

and removed.

11. In 1988, the Applicant contracted with Jacksonville

Electric Authority for the installation of an underground

electric distribution system in Cypress Landing. The underground

utilities distribution system was designed specifically to

protect and preserve the existing trees on the property, and was

installed by boring under the trees to place a conduit to protect

the established roots. The underground electrical distribution

system was installed in accordance with the Clay County code at

that time.

12. On May 29, 198 7, the Applicant sold Lot A to Robert M.

and Mary Wasdin. Clay County issued a building permit for the

construction of a residence on Lot A. A house has been

constructed on Lot A.

13. On September 1, 1989, the Applicant sold Lot E to

Robert G. and Marv a Lou Widhalm. Clay County issued a building

permit for the construction of a residence on Lot E. A house has

been constructed on Lot E.

C. Applicant's Expenses

14. The applicant expended approximately $4,609.45 on

topographical surveys, tree location surveys, and engineering

plans which were prepared for the mapping and platting of Cypress

Landing. The surveying expenses were paid prior to the adoption

of the Clay County 2001 Comprehensive Plan.

15. The Applicant incurred significant expenses in th e

design and construction of the roadway. Additional costs were

incurred by the Applicant for the construction of the roadway in

an environmentally sensitive manner which protected and preserved

the historic trees on the property. The total amount expend ed in

1984 by the Applicant for the construction of the roadway was

$6,880, all of which was paid prior to the adoption of the Clay

County 2001 Comprehensive Plan.

16. The Applicant expended $19,540 for the reconstruction

of the community dock in 1984, which was paid prior to the

adoption of the Clay County 2001 Comprehensive Plan.

17. The Applicant expended $7,101.87 for the installation

of the underground electrical distribution system in 1988 and

1989. This amount included an additional cost of $1, 209.87 paid

to JEA, which was the difference in cost between the underground

system and an equivalent overhead electrical distribution system.

This amount also included a cost of $5,502 paid to Allstate

Electrical Contractors, Inc. of Jacksonville, Florid a, for the

boring and installation of the PVC conduits to protect the

historic trees on the property. The expenses were paid prior to

the adoption of the Clay County 2001 Comprehensive Plan.

18. The Applicant expended $363.58 for costs associated

with t he Cypress Landing entrance sign and a security fence. The

expenses were paid prior to the adoption of the Clay County 2001

Comprehensive Plan.

D. Rights that will be Destroyed

19. In 1991 Clay County originally adopted the Clay County

2001 Comprehensi ve Plan pursuant to Chapter 163, Part II, Florida

Statutes. The Clay County 2001 Comprehensive Plan is now known

as the Clay County 2015 Comprehensive Plan. Under the

Comprehensive Plan, Cypress Landing was designated with a land

use designation in the p lan of "Rural Fringe."

20. Policy 2.10 of the Clay County 2015 Comprehensive Plan

provides that if land is divided into three or more lots, any

three of which are 9.9 acres or less in size, then such land must

be platted in accordance with the County's r egulations, and all

lots must be provided access to a road improved to meet County

paved road standards. The County's Subdivision Regulations were

amended after 1990. Section 16(1)(d)1.a.i. thereof now requires

a minimum width for subdivision streets of 60 feet. The

regulations further require that such streets be paved. The

Cypress Landing Road Easement is only 30 feet wide. Moreover,

new surface water runoff requirements require retention areas for

rainwater. To comply with the post - 1991 Clay County land use

regulations would require a reconfiguration of the lots in

Cypress Landing. Reconfiguration is not possible because two of

the lots have been sold to new owners.

21. Policy 2.9 of the Clay County 2015 Comprehensive Plan

restricts any easement that provides access to multiple lots to a

length of 1,000 feet, and limits to five the number of lots that

may utilize the same for access. While the Cypress Landing Road

Easement is less than 1,000 feet in length, the number of lots

within the Cypress Landing development exceeds the maximum that

can access the Road Easement.

22. The Petitioner would be precluded from selling or

developing the remaining lots within the Cypress Landing

development without reconfiguration and loss of one or more lots.

M oreover, because Lots "A" and "E" have already been sold, the

Petitioner cannot add additional right - of - way width to the Road

Easement in order to comply with the County's Subdivision

Regulations regarding minimum right - of - way width.

23. The Applicant would have been entitled to statutory

vested rights if 50 percent of the lots had been sold prior to

1992.

E. Procedural Requirements

24. The procedural requirements of Vested Rights Review

Process of Clay County, adopted by Clay County Ordinance 92 - 18,

as amended, have been met.

CONCLUSIONS OF LAW

A. Jurisdiction .

25. The Division of Administrative Hearings has

jurisdiction of the parties to and the subject matter of this

proceeding. Section 120.65(9), Florida Statutes (1997), and Clay

County Ordinan ce 92 - 18, as amended by Clay County Ordinances 92 -

22, 92 - 29 and 94 - 25, and 96 - 21.

B. General Requirements of Article VIII of the Clay

County Land Development Code .

26. Pursuant to Section 163.3167, Florida Statutes, Clay

County was required to prep are a comprehensive plan governing the

use and development of land located within Clay County. In

compliance with Section 163.3167, Florida Statutes, Clay County

adopted its Comprehensive Plan by Ordinance 92 - 03 on January 23,

1992.

27. In order to ensur e that existing rights to develop

property of Clay County property owners created by the

Constitutions of the State of Florida and the United States are

not infringed upon by the application of the Comprehensive Plan,

Clay County promulgated Article VIII o f the Clay County Land

Development Code (hereinafter referred to as the "Code.") The

intent of Clay County in adopting Article VIII of the Code is

included in Section 20.8 - 3(b) of the Code:

(b) It is the intent of this Article to

provide the standards an d administrative

procedures for determining whether a person

has a vested right to undertake development

activities, notwithstanding the fact that all

or part of the development is not in

accordance with the requirements of the Clay

County 2001 Comprehensi ve Plan or land

development regulations.

28. There are two general types of circumstances pursuant

to which vested rights to develop property may be found to exist

pursuant to Article VIII of the Code: (1) "statutory vested

rights" pursuant to Section 2 0.8 - 6 of Article VIII of the Code;

and (2) "equitable vested rights" pursuant to Section 20.8 - 7 of

Article VIII of the Code.

29. Applications to determine if development rights are

vested are initially reviewed for technical correctness by the

Clay County Planning and Zoning Department. Section 20.8 - 8(c)(1)

and (d)(1) of Article VIII of the Code.

30. In the case of an application for equitable vesting no

determination on the merits is made by Clay County. The Director

of the Planning and Zoning Departme nt, after determining that an

application for equitable vesting is complete, is required to

coordinate a hearing to consider the application. Section 20.8 -

8(d)(3) of Article VIII of the Code. Hearings on equitable

vesting applications are to be held with in 60 days after the

Director of the Planning and Zoning Department determines that

the application is complete. Id.

31. Pursuant to a contract entered into between Clay County

and the Division of Administrative Hearings, administrative law

judges of the Division of Administrative Hearings may be

authorized by Clay County to conduct hearings to consider appeals

on applications of statutory vesting and to make the initial

decision on applications for equitable vesting. Section 20.8 -

9(b) of Article VIII of the Code.

32. The manner in which hearings are to be conducted is

governed by Section 20.8 - 10 of Article VIII of the Code. At the

conclusion of a hearing, the administrative law judge is required

to issue a written decision approving, denying, or approv ing with

conditions the application. Section 20.8 - 10(a)(4) of Article

VIII of the Code.

C. Equitable Vested Rights .

33. Section 20.8 - 7 of Article VIII of the Code governs the

determination of whether an applicant’s development rights in

property have be en vested pursuant to the equitable vested rights

definition of Article VIII of the Code. The criteria for

determining whether the property is equitably vested are as

follows:

(b) Criteria For Determining Equitable

Vested Rights . Developments shall be d eemed

to have Equitable Vested Rights pursuant to

this Section if it is shown by substantial

competent evidence that a property owner or

other similarly situated person:

(1) has acted in good faith and in

reasonable reliance;

(2) upon a valid, un expired act or

omission of the government; and

(3) has made such a substantial change in

position or incurred such extensive

obligations and expenses that it would be

inequitable or unjust to destroy the

rights such person has acquired.

Sec tion 20.8 - 7(b) of Article VIII of the Code.

D. Cypress Landing/Robert Mason's Application .

34. Equitable vesting under Article VIII of the Code

contains the same elements of proof required for the doctrine of

equitable estoppel to apply. The doctrine o f equitable estoppel

has been described as follows:

The doctrine of equitable estoppel will limit

a local government in the exercise of its

zoning power when a property owner (1)

relying in good faith (2) upon some act or

omission of the government (3) has made such

a substantial change in position or incurred

such excessive obligations and expenses that

it would be highly inequitable and unjust to

destroy the rights he has acquired.

Smith v. Clearwater , 383 So. 2d 681, 686 (Fla. 2d DCA 1980). See

also Ke y West v. R.L.J.S. Corporation , 537 So. 2d 641 (Fla. 3d

DCA 1989); and Harbor Course Club, Inc. v. Department of

Community Affairs , 510 So. 2d 915 (Fla. 3d DCA 1987). The

undersigned has been guided in this case by the case law applying

the doctrine of eq uitable estoppel. See Section 20 - 8.10(a)(5) of

Article VIII of the Code.

35. The Applicant presented substantial competent evidence

demonstrating that all of the elements of equitable estoppel and,

therefore, equitable vesting as defined in Article VIII of the

Code exist in this case.

36. Based upon the evidence presented in this matter, the

Applicant in the development of Cypress Landing has acted in good

faith to comply with the appropriate Clay County Code

requirements. The subdivision was surveyed a nd platted, the

roadway was constructed, the underground utilities were

installed, the dock was reconstructed, two of the lots were sold,

two building permits were issued, and two houses were constructed

on the property. Each development action was approv ed and

carried out in compliance with applicable code requirements. The

Applicant relied on the continuous approval of each development

activity over a period of years. See Equity Resources, Inc. v.

County of Leon , 643 So. 2d 1112 (Fla. 1st DCA 1994). I t is

therefore concluded that the first two criteria for equitable

vesting have been proven: the Applicant acted in good faith and

in reasonable reliance upon a valid, unexpired act or omission of

Clay County.

37. Substantial competent evidence was prese nted at hearing

to conclude that the Applicant has made extensive expenditures to

develop Cypress Landing in an environmentally responsible manner

which complied with all requirements prior to the adoption of the

Clay County Comprehensive Plan. In light o f the extensive

expenditures of the Applicant and the adverse impact of complying

with the Comprehensive Plan, it is concluded that the third

criterion for equitable vesting has also been proven: the

Applicant has made a substantial change in position or incurred

such extensive obligations and expenses that it would be highly

inequitable or unjust to destroy the rights the Applicant has

acquired.

38. Based upon a review of the evidence presented at the

hearing held before the undersigned on April 23, 2003 , it is

concluded that the Applicant has proved that the elements of

equitable vesting apply.

ORDER

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is

ORDERED that the Application for Vested Property

Certification for Claims of Equitab le Vested Rights dated

March 5, 2003, is APPROVED. A Vested Property Certificate should

be issued to Robert A. Mason for the remaining five lots of

Cypress Landing which are owned by Robert A. Mason.

DONE AND ORDERED this 23rd day of May, 2003, in Tallaha ssee,

Leon County, Florida.

___________________________________

RICHARD A. HIXSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 3239 9 - 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 23rd day of May, 2003.

COPIES FURNISHED:

Dale S. Wilson, Esq uire

Post Office Box 1808

Green Cove Springs, Florida 32043

Mark Scruby, County Attorney

Clay County

Post Office Box 367

Green Cove Springs, Florida 32043 - 0367

Shawanda Watson, Planner

Clay County Vested Rights Coordinator

Clay County

Post Office Box 3 67

Green Cove Springs, Florida 32043 - 0367

Thad Crowe, AICP, Planning Director

Clay County

Post Office Box 367

Green Cove Springs, Florida 32043 - 0367

NOTICE OF RIGHT TO JUDICIAL REVIEW

This Final Order is subject to judicial review in the Circuit

Cour t, Fourth Judicial Circuit, in and for Clay County, Florida.