90-006431VR Centervillage Limited Partnership vs. City Of Talla Status: Closed DOAH Final Order on Thursday, December 27, 1990.

Summary: Petitioner in reliance on acts of city, did extensive site work and created water treatment system for use by city, Petitioner's development rights are vested.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CENTERVILLAGE LIMITED )

PARTNERSHIP, )

)

Petitioner, )

vs. ) CASE NO. 90-6431V

)

CITY OF TALLAHASSEE, )

)

Respondent. )

______________________________)

FINAL ORDER

This case came before the undersigned pursuant to Section 120.65(9),

Florida Statutes (1989), and the City of Tallahassee Ordinance No. 90-O-0043AA,

adopted July 16, 1990.

APPEARANCES

For Petitioner: Russell D. Gautier, Esquire

306 East College Avenue

Tallahassee, Florida 32301

For Respondent: Patrick E. Hurley, Esquire

John H. Sytsma, Esquire

HENRY, BUCHANAN, MICK & ENGLISH, P.A.

117 South Gadsden Street

Post Office Drawer 1049

Tallahassee, Florida 32302

STATEMENT OF THE ISSUE

Whether Centervillage Limited Partnership has demonstrated, by a

preponderance of evidence, that development rights in certain real property it

owns have vested against the provisions of the Tallahassee-Leon County 2010

Comprehensive Plan.

PRELIMINARY STATEMENT

An Application for Vested Rights Determination (hereinafter referred to as

Application) dated August 6, 1990, was filed with the Tallahassee-Leon County

Planning Department by Petitioner, Centervillage Limited Partnership

(Centervillage). The Application was ultimately reviewed by the Staff Committee

for the Respondent, City of Tallahassee (City), and was denied. Notice of the

denial was provided to Centervillage by letter dated September 17, 1990. By

letter dated September 28, 1990, the denial was appealed by Centervillage. On

October 10, 1990, the City referred the matter to the Division of Administrative

Hearings for assignment of a Hearing Officer.

Pursuant to an agreement of the parties, a hearing was held on November 26,

1990, to give the parties an opportunity to supplement the record with

additional documentary evidence and testimony. At the commencement of the

hearing, which was conducted in accordance with Tallahassee Ordinance No. 90-O-

0043AA (Ordinance), the transcript of the hearing before the City's Staff

Committee, exhibits filed with the original request for the assignment of a

Hearing Officer and supplemental documents were accepted into evidence.

Centervillage presented the testimony of Helge Swanson, Tony Park, Richard

Moore and James E. Maurin. The City did not offer any testimony or exhibits.

The parties agreed to file a proposed final order by December 7, 1990.

Both parties did file timely proposed final orders. Since the deadline for

filing proposed final orders exceeded 10 days after the date of hearing, the

parties waived the requirement that an order be rendered 30 days after the

hearing. Rule 22I-6.031, Florida Administrative Code.

By agreement of the parties, the record and exhibits will be referenced in

the following form: References to the record of the hearing conducted by the

Staff Committee on September 10 and 17, 1990, will be shown as (e.g., T-1 and T-

2 p. 10). References to the record of the hearing conducted by DOAH on November

26, 1990, will be shown as (e.g., T-3 p. 10). References to the Staff Committee

exhibits will be by the assigned Code (e.g., App. Ex. E, E-8). References to

the supplemental exhibits will be by the assigned Code (e.g. Appellant's exhibit

8)

SUPPLEMENTAL EVIDENCE

The Hearing Officer allowed the introduction of supplemental evidence as

follows:

a. h a m , A s s i s t a n t C o u n l t e .  A f f i d a v i t o f J o h n C P y

Attorney. (Appellant's Ex. 3)

b. r a n d u m f r o m R o b M a g e o m e M  S e p t e m b e e 2 1 , 1 9 9 0 , r .

(Appellant's Ex. 4)

c.  ( A p p e l . l n t ' s E x . a e c n  T h e V e s t i n g O r d i n a 5 )

d. o t h e r p r o j e c t s r e v i e w m o r f  T h e a p p l i e c t i o n f i l e s a d

by the Committee and the Leon County staff review

committee. (Appellant's Ex. 6) These exhibits were

introduced over objection of the City. (T-3 pp. 36-47)

These exhibits are further addressed in the Appendix to

this Final Order.

e. y B r o w a b r D a v i s a d d e r  T h e s u r v e y p r e p a n d

Associates, Inc., of the property.

(Appellant's Ex. 7).

f. c e j o r p e h t f o h p t a g o t o h p l a i r e A  r .

(Appellant's Ex. 8)

FINDINGS OF FACT

A.  P r o c e d u r e .

1. i l l a g e f i l e d a n A p p l i c a t i o n f v r e t  O n o r a b o u t A u o g s t 6 , 1 9 9 0 , C e n u r

Vested Rights Determination with the Tallahassee-Leon County Planning

Department. (Application VR0027T)

2. e r n i n g t h e d e v e l o p m e n t o f t c n o c  T h e f o l l o w i h n i n f o r m a t i o n g e

Centervillage property was contained on the Application:

a. d a s t h e " o e w e r / a g e n t n t s i  " G e r a l d E . S o n g y " i s l . "

b. a m e o f t h e p r o j e c t n a e t  Q u e s t i o n 3 l i s t s h s

"Centervillage Limited Partnership."

c. o m p l e t i o n " i s d e s c r i b C d r a  " P r o g r e s e s .  .  .  T o w  d

as:(1) r a t i o n , ( a 3 L e o n C o u n ) t p r  p l a n n i n e g ( 2 ) s i t e p , y

environmental permits, (4) DER Dredge and Fill Permit,

(5) DOT Drainage Connection Permit.

3. d i v i s i o n A p p r o b v l a n d a s t o r m w a t a u s r  O r i g i n a l P . U . D . , R e z o n i n g , M i n o e r

agreement with Leon County, are included in Centervillage's application as forms

of government approvals and as the actions of government relied on prior to

committing funds toward completion of the proposed development.

4. r i n g s w e r e h e a l t o c o n s i d e r t d h e ,  O n S e p t e m b e h r 0 a n d 1 7 , 1 9 9 0 1 e

Application before the Staff Committee comprised of the City Attorney, the

Director of Planning for the Tallahassee-Leon County Planning Commission and the

Director of Growth Management for the City.

5. M a r k G u m u l a , D i r e c t o r o f P l a n n i , n 0 9  B y l e t t e r d a t e d S e p t e m b e r 1 7 , 1 9 g

of the Tallahassee-Leon County Planning Department informed Centervillage that

the Application had been denied.

6. 0 , t o M r . G u m u l a , C e n t e r v i l l a 9 g 9 ,  B y l e t t e r d a t e d S e p t e m b e r 2 8 1 e

appealed the decision to deny the Application.

7. t h e D i v i s i o n o f A d m i n i s t r a t i , v 0 9  B y l e t t e r d a t e d O c t o b e r 1 0 , 1 9 e

Hearings was requested to provide a Hearing Officer to review this matter.

8. d e r s i g n e d a l l n o e d t h e p a r t i e s w t u h  B y a g r e e m e n t e o t h e p a r t i e s , t f o

supplement the record in this matter on November 26, 1990.

B.  T h e P r o p e r t y .

9. i m a t e l y 2 7 . 2 0 a c r e s o f p r o p e r t y ( t x h o p  C e n t e r v i l l a g e c u r r e n t l y o w n s a p r e

Property) located at the Northeast corner of Capital Circle, Northeast, and

Centerville Road, Tallahassee, Florida (Application).

10. t h e P r o p e r t y g , h r o u g h v a r i o t n i l  C e n t e r v i l l a g e b e g a n a s s e m b u s

transactions, in the early 1980's. By October, 1984, Centervillage had acquired

the bulk of the Property. (T-3 p. 23)

11. a c q u i s i t i o n o l f h e P r o p e r t y , t t h a t  P r i o r t o C e n t i e v i l l a g e ' s i n i r e

prior owners of portions of the Property began development of the site as an

industrial, mini-warehouse development. This prior development activity

involved a series of violations of state and local environmental laws and

regulations. (T-3 pp. 50-51, 59)

12. a c t i v i t i e s b y t t e p r i o r o w n e r s h n e m  A s a r e s u l t o f i m p r o p e r d e v e l o p o f

the Property, fines were imposed and, at the time Centervillage made the initial

purchase, the Property was subject to a Florida Department of Environmental

Regulation (DER) consent order. (T-3 p. 26)

C. t i v i t c A t n e m p o l e v e D  y .

13. r o p o s e s t o d e v e l o p i s a s h o p p i p n e a  T h e p r o j e c t t h a t C e n t e r v i l l g g

center containing 200,000 square feet of gross leasable space on approximately

18 of the total 27.20 acres. (T-3 p. 96) The balance of the property is

dedicated to stormwater facilities. (T-3 pp. 96-99)

14. e 2 7 . 2 0 a c r e s i t c u r r e n t l y o w n h t g n  D u r i n g t h e p r s o e s s o f a c q u i r i c ,

Centervillage began preparing the Property for future development by clearing

and demolishing existing structures such as mobile homes, concrete driveways,

and wells. (T-1 pp. 27-28) Permits were obtained early in the process to

demolish these structures and in December 1984, the front corner of the Property

was selectively cleared. (T-1 p. 28)

15. n t y ) b e g a n c o n s t r u c t i o n o f a d i t u c o e  I n A p r i l , 1 9 8 6 , L e o n C o u n t y ( t h C h

on a portion of the perimeter of the Property. The purpose of this ditch was to

allow stormwater discharge from a Centerville Road construction project that the

County was involved in. The County had been unable to locate an alternative

site to provide any catchment and holding facility to handle the stormwater run

off and, as a result, had encountered problems with the Florida Department of

Environmental Regulation (DER). (T-3, pp. 70-71)

16. i n v o l v e d i n a t t e m p t i n g t o r e s o l s v a e  A t t h e s a m e t i m e , C e n t e r v i l l a g w e

problems associated with improper development activity on the Property by its

previous owners. These factors led to cooperative efforts on the part of both

Centervillage and the County in dealing with the DER and to conceptual

agreements between the Centervillage and the County regarding aspects of future

development of the Property. Centervillage granted the County a temporary

easement for the purpose of constructing the drainage ditch. (T-1 p. 28, T-3 p.

52) The drainage ditch constructed on the site turned out to be a "long, skinny

holding pond." (T-1 t e d o v e r 8 0 p e r c e n t o f t c u r t  p .  2 9 ) T h h e o u n t y c o n s C e

overall onsite perimeter ditch in mid to late 1986. (T-1 p. 29) The property

subject to the temporary easement will be conveyed to the County pursuant to a

formalized conceptual agreement between Centervillage and the County. (App. Ex.

G, G-8) This agreement will be the subject of expanded discussion later in this

Final Order.

17. h e c u r r e n t i m t p o v e m e n t s o n t r f o y  C o n s t r u c t i o n o f t h e m a j o r i t h e

Property began in June of 1989. The work consisted of: construction of a

holding pond sized for commercial development; construction of some two and a

half acres of wetlands; and construction of the perimeter ditch from the north

end of the project to Centerville Road, then west along Centerville Road under

Capital Circle. (T-1 pp. 30-31) The work also included vegetation of the

perimeter ditch to create wetlands. (T-1 p. 31) This development activity also

involved the placing of 50,000 to 60,000 cubic yards of fill material on the

site. (T-1 p. 30)

18. l a g e a c q u i r e l d v e r s i x a c r e s o i v r  I n M a y a n d J u n e o f 1 9 8 9 , C e n t e o f

adjoining property in order to construct a stormwater facility which it had

agreed to provide as part of its conceptual agreements with the County and in

partial mitigation against prior improper development on the Property. (App.

Ex. H, H-2; T-1 p. 11; T-3 pp. 125-126; T-3 pp. 26-27)

19. d s C e n t e r v i l l n a e c o n s t r u c t e d g a l t  T h e t w o a n d a h a l f a c r e s o f n e w w e o n

the property was also in mitigation for prior improper development activity

engaged in by previous owners of the Property. (T-1 p. 30)

20. t e d b u t n o t c o n s t r u c t e d . T h i s w o t i m r  F u r t h e r d e v e l r o m e n t h a s b e e n p e p k

is to involve the construction of culverts, crossings, and onsite, upland

filtration facilities. (T-1 pp. 31-32)

21. c t i v i t y , t h e n a o t h e r n 7 . 5 7 a c r r t n e  A s a r e s u l t o f t h e 1 9 8 9 d e v e l o p m e s

of the property has been excavated for the stormwater facility and some 18

acres of the Property have been filled from depths of two to six feet. (T-3 p.

97)

D. l a v o r p p A t n e m n r e v o G  s .

22. e r v i l l a g e ' s r e q u e s t f o r a P l a n n t n e C  I n J u l y , 1 9 8 4 , e t e C i t y a p p r o v e d h d

Unit Development (P.U.D.) to allow the Property to be developed as a shopping

center to be constructed in three phases. Each phase of construction was to

involve 50,000 square feet of retail space. (App. Ex. G, G-1)

23. e d a n a m e n d m e n v t o t h e p r e v i o u s t l o p  I n D e c e m b e r , r 1 8 4 , t h e C i t y a p 9 y

approved P.U.D., to add additional property and to expand the size of the

development by the addition of approximately 20,000 square feet of retail space.

(App. Ex. G, G-2)

24. c e i v e d r e z o n i n g a p p r o v a l f r o m t e h r g  I n J a n u a r y , 1 9 8 8 , C e n t e r v i l l a e e

P.U.D. to Commercial Parkway, limited use site plan (CP zoning). (App. Ex. G,

G-3; T-3 pp. 25-26) The limited use site plan outlines, among other things, the

limited access to the Property and the reestablishment of the canopy road on

portions of Centerville Road which abut the property. (App. Ex. G, G-3)

25. r v i l l a g e ' s a p p l i c a t i o n f o r m i n e t n e  I n M a y , 1 9 8 8 , t o h C i t y a p p r o v e d C e r

subdivision approval. This minor subdivision approval established one parcel as

the previously developed mini-warehouse site to the east of the Property and the

other parcel as the Property as it currently exists except for 2.79 acres on

Capital Circle which had not been acquired at that time. (App. Ex. G, G-4) In

October, 1988, the City granted a separate minor subdivision approval which

addressed the additional 2.79 acres. (Minor subdivision approval, dated October

26, 1988, signed by Donny Brown, Development Coordinator for the City.) The

parcel containing the mini-warehouse facility was sold in 1986, and is no longer

part of the Property. (T-1 pp. 37-38)

26. d a n e n v i r o n e m n t a l p e r m i t e t u s  O n J u l y 2 2 , s 1 8 8 , t h e D E R i 9 o

Centervillage. (App. Ex. E, E-9) This permit was a result of extensive

negotiations between DER and Centervillage and also involved the County because

of the County's own permitting problems with the road improvement Project. (T-1

pp. 63-65) This DER permit specifies that the "permit does not convey any

vested rights." (App. Ex. E, E-9, paragraph 3)

27. E n v i r o n m e n t a l M a n a g e m e n t P e r m d e u s  O n A u g u s t 1 7 , 1 i 9 8 , t h e C o u n t y i s 8 t

#88-0299 to Centervillage. This permit was for "earth work only" and specified

that "stormwater runoff [would] be required upon final development plans."

(App. Ex. E, E-1)

28. t e d C e n t e r v i l l p a e ' s h y d r o l o g i c g a e c  O n O c t o b e r 2 5 , c 1 8 8 , t h e C o u n t y a 9 l

analysis on the Property. (App. Ex. E, E-3)

29. e r e c e i v e d n o t g i i c a t i o n f r o m t f h a l  O n D e c e m b e r 5 l , 9 8 8 , C e n t e r v i 1 e

County that the project site was exempt from site plan review. (App. Ex. E, E-

9) Currently, there is not a city-approved site plan for the Centervillage

project. (T-3 p. 115)

30. i r o n m e n t a l P e r m i t # 8 9 - 0 2 3 0 . T h v i n d  O n M a y 3 , 1 9 8 9 , t h e C o u n t y i s s u e E s

permit reflects approval of an additional of 630,000 square feet of impervious

surface to the site. Centervillage's application for this permit also lists the

proposed use of the Property as "M-1 mini-warehouses and CP shopping center."

(App. Ex. E, E-5) Centervillage began its construction of the majority of

current site improvements in June of 1989. (T-1 p. 30) In meetings between

Centervillage and the City it was never confirmed that the approval of an

additional 630,000 square feet of impervious surface on the site was a valid

assumption. (T-3 p. 138)

31. v i r o n m e n t a l p n e m i t s i n 1 9 8 9 , o r e l a  T h e C o u n t y i s s u e d t w o a d d i t i o n n e

for tree removal (App. Ex. E, E-6) and one for stormwater permit amendments.

(App. Ex. E, E-7) In March, 1990, the County issued an additional environmental

permit for tree removal. (App. Ex. E, E-8)

32. i d a D e p a r t m e n t o f T r a n s p o r t a t i r o l F  I n J a n u a r y a n d o i J u n e , 1 9 9 0 , t h e n n

(DOT) issued two separate drainage connection permits to Centervillage. (App.

Ex. E, E-10, E-11)

33. r m e d t h e e n v i r o o n e n t a l r e g u l a t o m f r e  U n t i l O c t o b e r , 1 9 9 0 , t h e C o u n t y p r y

services for both the County and the City. (T-3 p. 56)

34. i r o n m e n t a l p e v r i t s d e s c r i b e d m n e e  A t t h e t i m e t h e C o u n t y i s s u e d t h i n

this Final Order, there was no City of Tallahassee Environmental Ordinance. (T-

3 pp. 73-74)

35. i r o n m e n t a l p e v r i t s d e s c r i b e d m n e e  A t t h e t i m e t h e C o u n t y i s s u e d t h i n

this Final Order, the County Chief of Environmental Management regularly

appeared before the Tallahassee City Commission as part of his duties in issuing

environmental permits for property within the City. (T-3 p. 56)

36. l p e r m i t s d e s c a r b e d i n t h i s F i n i t n e  A t t h e t i m e t h e C o u n t y e n v i r o n m a l

Order were issued to Centervillage, the City would look to a County

environmental permit before issuing a building permit. (T-3 p. 74)

37. i n g i n t h i s c r a e , t h e C h i e f s o a h  A t t h e N o v e e m e r 2 6 , 1 9 9 0 , b f

Environmental Management for the County testified that he knew of no specific

resolution or ordinance that granted environmental permitting authority within

city limits to the County. (T-3 pp. 74-75) However, the testimony at the

November 26, 1990, hearing in this case establishes that the City relied on the

County's environmental permitting in making its own permitting decisions. (T-3

pp. 56, 73-75)

38. w a s a c t i n g o n b y e a l f o f t h e C i t y h i t u  I n p r a c t i c e a n n e f f e c t , t h e C o d n

granting local environmental permits. (T-3 pp. 73-80)

39. e d t h e a u t h o r i t y t o m a k e l a n d u t s a e  T h e C o u n t y h a s n e v e r b e e n d e l g e

decisions, such as subdivision approvals, for property within the City. (T-3

pp. 74-76)

40. U . D . t o C P Z o n i . n , a p p r o v e d b y t g P m o  T h e r e z o n i n g o f t h e P r o p e r t y f r h e

City in January, 1988, provided no specific approval of densities and

intensities for development of the Centervillage project. (T-3 pp. 130-132)

41. n i n g o f t h e P r o p e r t y f r o m P . U . D . o i z r  W h e n C e n t e r v i l l a g e r e q u e s t e d e n

January, 1988, its managing general partner assumed that as part of the approved

zoning change it received approval for the same density and intensity of

development that existed under the P.U.D. (T-3 p. 125)

E. n e m e e r g A l a t u p e c n o C e h T  t .

42. e p r o c e s s o f a t t e m p t i n g t o w i d h e t i  I n e a r l y 1 9 8 6 , t h e C o u n t y w a s n n

and improve Centerville Road. (T-1 p. 28) During this construction by the

County, the DER asserted jurisdiction over the road project and the construction

was stalled because the County did not have adequate property on which to

construct facilities for the storage and treatment of stormwater runoff

generated by the road construction project. (T-3 pp. 70-71, 82-84)

43. i t t i n g p r o c e s s m , e n t e r v i l l a g e w C a r p  D u r i n g t h e i n i e t a l r e z o n i n g a n d i s

required to address the effects of prior improper development activity engaged

in on a portion of the Property by previous owners. As a result of the prior

improper development on the Property, Centervillage was required to mitigate

against flooding problems and to facilitate revegetation of a denuded canopy

road segment along Centerville Road. (T-3 p. 52)

44. , A d m i n i s t r a t o r f o r t h e C o u n t h s i r  O n A p r i l 1 1 , 1 y 9 6 , J a m e s G . P a r 8 ,

presented Centervillage with a conceptual agreement whereby, among other things,

Centervillage agreed to grant necessary easements to the County for the

construction of a drainage ditch on the Property to accept and store stormwater

runoff from the County's Centerville Road improvement project. (App. Ex. G, G-

6)

45. l l a g e c o o p e r a t e d t h r o u g h a s e r i i v r e  D u r i n g 1 9 8 6 , t e h C o u n t y a n d C e n t e s

of permitting contacts specific to the development of a shopping center, to

establish a major regional water management facility, to provide water

management for the Centerville Road project, and to engage in cooperative

efforts to reforest the canopy road. (T-3 pp. 52-53) These cooperative

permitting contacts included contacts with the DER. (T-3 p. 53)

46. l l y f o r m a l i z e a d n d a d o p t e d b y t a h n f  T h e c o n c e p t u i a a g r e e m e n t w a s l e

Leon County Commission on July 18, 1989. (App. Ex. G, G-8) In this agreement,

Centervillage obligated itself to acquire additional property, construct a

stormwater management facility and to convey the completed facility to the

County. (App. Ex. G, G-8)

47. e m e n t , t h e C o u e n y a g r e e d t o f u l t l r a  I n t h e f o r m a l g i e d c o n c e p t u a l z y

cooperate in the efforts of Centervillage to obtain all permits necessary to

complete all improvements in accordance with the DER permit issued to

Centervillage in July, 1988. (App. Ex. G, G-8)

48. t f u r t h e r p r o v i d e s t h a t t h e C o u n n e m e  T h e f o r m a l i z e t d o n c e p t u a l a g r e c y

will not require any additional stormwater retention or detention above that

required by the County environmental permit issued to Centervillage previously.

(App. Ex. G, G-8)

49. e C o u n t y w i l l a l l o w C e n t e r v i l l a h g t a  T h e a g r e e m e n t a l s o p r o v i d e s t h t e

to develop the southwest portion of the Property, fronting Capital Circle

Northeast and Centerville Road," to its fullest commercial potential, subject

only to existing zoning ordinances, terms and conditions of the limited use site

plan, approval of subsequent short-term applications for environmental

management permits, and Leon County Environmental Permit number 88-0299." This

portion of the agreement also provides that the property will no longer be

"protected from development." (App. Ex. G, G-8, paragraph 8)

50. a n t t o t h e a g r e u e e n t , t o c o n v e y m s r u  C e n t e r v i l l a g e i s o b l i g a t e d , p i n

excess of 7 acres of property and the drainage ditch area for no additional

consideration. (T-3 pp. 85-86)

51. g e t o p r o v i d e s t o r m w a t e r d r a i n a a l l i  A b s e n t t h e a g r g e m e n t o f C e n t e r v e e

and retention on the Property and to convey that portion of the Property to the

County, the County could not have completed the Centerville Road improvement

project. (T-3 pp. 70-71)

52. t e l a n d t o t h e C o u n t y w a s t i e d t o t a h n d  C e n t e r v i l l a g e ' s a g r e e m e n t t o o e

DER permits issued to both Centervillage and the County. (T-1 p. 41)

53. e t h e 7 . 5 7 a c r e s d t r m w a t e r f a c i l i o i v o  C e n t e r v i l l a g e ' s a g r e e m e n t t o p r t y

to the County was a required condition in connection with the issuance of the

environmental management permit issued by the County. (T-3 p. 88)

54. a g r e e m e n t b e t w e e n C e n t e r v i l l a l g a t  T h e C i t y w a s p r i v y t o t h e c o n c e p u e

and the County from the development stages through to its final, formal approval

by the County Commission in July 1989. The plans for the stormwater facility

were discussed with and reviewed by the City, with the understanding that the

city would accept and maintain the facilities. (T-3 pp. 86-87) During these

discussion with City personnel, there was no indication given that the agreement

included land use decisions. (T-3 pp. 90-91)

55. s e r v e s m o r e t h y a t h e d e v e l o p m e n n t l  T h e 7 . 5 7 a c r e i s o r m w a t e r f a c i t t

area. The facility is a major component of the total drainage system for the

City of Tallahassee. (T-3 p. 88) The size of the 7.57 acre stormwater facility

is not directly related to the Centervillage development proposal. (T-3 p. 90)

F. e s n e p x E t n e m p o l e v e D  s .

56. n a l t r a c t w a s $ 1 , 8 1 2 , 0 1 2 . 0 i g i r  T h e c o s t o f p 0 u c h a s i n g t h e o r .

Centervillage has since sold a portion of the original tract for $738,282.00.

Centervillage's net land costs for the Property are $1,073,730.00. (App. Ex. C,

C-1) Centervillage incurred costs of $175,000.00 in purchasing land pursuant to

the conceptual agreement with the County. (T-3 pp. 123-126) Other than the

$175,000.00 expended pursuant to the conceptual agreement, the balance of costs

of purchase of land were not incurred in reliance on any act or omission of the

City.

57. e n t e r v i l l a g e w C e e $ 1 , 2 7 9 , 7 5 3 . 3 r 0 y d  I n t e r e s t a n d p b r p e r t y t a x e s p a i o .

(App. Ex. C, C-1) No significant portion of the costs attributed to interest

and property taxes were incurred in reliance on any act or omission of the City.

58. i n c o s t s a s s o c i 0 a e d w i t h s i t e w o r t 5 . 4  C e n t e r v i l l a g e i n c u r r e d $ 5 4 3 , 6 2 k ,

clearing, and landscaping on the Property. Significant portions of these costs

were incurred beginning in June, 1989. (T-1 pp. 30-31) These costs were

substantially incurred after Centervillage had engaged in extensive negotiations

with state and local government entities and after permits were issued by the

state DER and DOT as well as environmental permits issued by the County. At the

time the County issued these permits it was, in practice and effect, acting on

behalf of the City. These negotiations, agreements, permits and approvals are

outlined in the Government Approvals portion of this Final Order.

59. h a t i t e x p e n d e d w e l l i n e x c e s s t o d h  C e n t e r v i l l a g e h a s e s t a b l i s e f

$400,000.00 on testing, inspection, soil investigation, engineer and survey

fees, architectural fees, legal and title fees and general development expenses

associated with the development of the Property. (App. Ex. C, C-1)

Centervillage has proved that a significant portion of these "soft costs" were

expanded during the period it engaged in extensive negotiations with and after

Centervillage obtained permits and approvals from the various state and local

government entities as outlined in the Government Approvals portion of this

Final Order.

60. h e l a r g e e x p e n t d t u r e o f f u n d s , i e d a  C e n t e r v i l l a g e w o u l d n o t h a v e m o r

made the commitment to convey significant portions of the property to the County

pursuant to the Conceptual Agreement if it had not obtained the zoning approvals

and environmental permits that were necessary to construct a community size

shopping center of approximately 200,000 square feet. (T-1 pp. 68-70; T-3 pp.

127-128)

61. e s t h a t C e n t e r v i l l a g e r e a s o n a b h l s l  T h e e v i d e n c e i n t h i s c a s e e s t a b i y

relied on the approvals and environmental permits it obtained from state and

local governments, as well as on the conceptual agreement between Centervillage

and the County in changing its position and in incurring substantial costs

associated with the development of the Property.

G. n e m p o l e v e D e h t f o s u t a t S t n e r r u C  t .

62. d r a i n a g e w a y , a d d e d p r o p e r t i e s a t s w  C e n t e r v i l l a g e t o o k a s i t e t h a t a o

it, accomplished an enormous amount of permitting and fill work to come up with

a fairly level buildable site suitable for building anything allowed within the

zoning and the Comprehensive Plan. (T-1 p. 18)

63. n p u r s u e d b y C e n t e r v i l l a g e f o r t e h e s  T h e s h o p p i n g c e n t e r p r o j e c t h a b e

past several years. Centervillage has never proposed any alternative plans to

the City or other governmental authorities in the history of its project. (T-3

pp. 57-60, 82; T-1 pp. 17-18)

64. 8 9 - 0 2 3 0 , i s s u # e o n M a y 3 , 1 9 8 9 , d t i m  E n v i r o n m e n t a l M a n a g e m e n t P e r b y

the County, contemplated approval of the addition of 630,000 square feet of

impervious surface to the Property. (App. Ex. E) Centervillage relied on this

approval and incurred substantial costs in proceeding with the further

development of the Property.

65. 0 , C e n t e r v i l l a g e p r e s e n t e d t 9 h 9 ,  A t t h e h e a r i n g o n N o v e m b e r 2 6 1 e

testimony of Richard Moore, a licensed professional engineer. (T-3 p. 94) Mr.

Moore has been involved with the Centervillage project for seven years. (T-3 p.

95) Mr. Moore testified that he prepared a layout based on several planning

concepts on engineering design and determined that 630,000 square feet of

impervious surface allowed 200,000 square feet of gross leasable space and

allowed the development of adequate parking with good internal circulation and

sufficient green areas to allow for aesthetic landscaping. (T-3 pp. 106-107)

Mr. Moore further testified that this square footage ratio is on average with

design standards accepted in the engineering community. (T-3 p. 107)

66. , i f C e n t e r v i l y l g e i s r e q u i r e d a n o m  A c c o r d i n g t o M r . M o o r e ' s t e s t i t o

meet consistency and concurrency requirements of the 2010 Comprehensive Plan,

the shopping center development could be limited or delayed because the Property

is located on a constrained roadway. (T-3 pp. 103-106)

67. d w i d e n i n g o f C a p i t a l C i r c l e , e o l d  T h e D O T a n d t h e C i t y h a v e s c h e u n

which the Centervillage Property fronts, for 1991. (T-3 pp. 109-110) However,

based upon Mr. Moore's testimony, Centervillage has established that constrained

roadway limitations could limit or delay the project under the 2010

Comprehensive Plan despite the current improvement schedule.

68. u n d e r t h e 2 0 1 0 C , o p r e h e n s i v e P l a m n y o  A c c o r d i n g t o M n r M o o r e ' s t e s t i m . ,

the proximity of the Property to Centerville Road, a canopy road, could limit

the development of a shopping center to 100,000 square feet of leasable space.

(T-3 pp. 103-104)

69. p t i o n o f t h e C i t y o f T a l l a h a s s o e d f  A s o f J u l y 1 6 , 1 9 9 0 , t h e d a t e o a e

Vesting Ordinance, the stormwater facilities on the Property were not complete.

Additional water treatment facilities must still be constructed for runoff from

the site. (T-3 pp. 19-21)

70. s o r e l e c t r i c a l s e r v i c e s h a v e b e e c i v  N o r o a d w a y s , w e a e r a n d s e w e r s e r t n

constructed on site. (T-3 p. 108)

CONCLUSIONS OF LAW

A.  J u r i s d i c t i o n .

71. The Division of Administrative Hearings has jurisdiction of the

parties to and the subject matter of this proceeding. Section 120.65(9),

Florida Statutes, (1989), and City of Tallahassee Ordinance No. 90-O-0043AA

(Ordinance).

B.  T h e O r d i n a n c e .

72. Pursuant to Section 163.3167, Florida Statutes, the City was required

to prepare a comprehensive plan governing the use and development of land

located within the City. In compliance with Section 163.3167, Florida Statutes,

the City adopted a comprehensive plan (2010 Comprehensive Plan), which was

submitted to the Florida Department of Community Affairs for review on February

1, 1990.

73. The City adopted the Ordinance to insure that existing rights to

develop property of Tallahassee property owners created by the Constitutions of

the State of Florida and the United States, are not infringed upon by

application of the 2010 Comprehensive Plan. The purpose of the Ordinance is to

establish the:

... e d u r e s a n c d t a n d a r d s s o r p  s o l e a d m i n i s t r a t i v e b y

which a property owner may demonstrate that private

property rights have vested against the 2010

Comprehensive Plan.

(Section III of the Ordinance.)

74. Pursuant to the Ordinance, any Tallahassee property owner who believes

that his or her property rights to develop property are vested, and therefore

believes that the property may be developed without complying with the 2010

Comprehensive Plan, must file an application provided by the City within 120

days after July 16, 1990. If an application is filed pursuant to the Ordinance

and it is determined that development rights have vested, the consistency and

concurrency requirements of the 2010 Comprehensive Plan do not apply to the

property.

75. Applications to determine if development rights have vested are

initially reviewed for technical correctness by the Tallahassee-Leon County

Planning Department's (Planning Department) staff. (Section III.3.a. of the

Ordinance.) Once the Application is accepted, the staff of the Planning

Department makes the initial determination as to whether development rights in

the property are vested. Id. If staff cannot determine whether an applicant's

development rights in the property are clearly and unequivocally vested, a

hearing before a Staff Committee consisting of the City Attorney, the Director

of Planning, and the Director of Growth Management is to be conducted within

fifteen days after the Planning Department staff's decision. (Section III.3.c.

of the Ordinance.) A hearing before the Staff Committee may also be requested

by an applicant if staff determines that the applicant's property is not vested.

Id.

76. An applicant is required to present all evidence in support of his or

her application at the hearing before the Staff Committee. (Section III.3.d of

the Ordinance.) At the conclusion of the hearing the Staff Committee must

"adopt a decision of approval, denial, approval with conditions, or to continue

the proceedings to a date certain." Id. Written notice of the Staff

Committee's decision is to be provided within ten calendar days after the

hearing. Id.

77. If a hearing before the Staff Committee is waived or if the decision

of the Staff Committee is adverse to the applicant, Section III.3.e of the

Ordinance provides for an appeal to a Hearing Officer. The nature of such an

appeal is set out in Section III.3.e.2 of the Ordinance:

This "appeal" is not intended to mean an appeal in the

traditional sense, that is, only a review of the Staff

Committee record of their hearing. The Hearing Officer

"appeal" shall be construed in its broadest, non-

technical sense, which is merely an application to a

higher authority for a review of the Staff Committee

action taken.

78. In reviewing the action taken by the Staff Committee,

Section III.3.e.3 of the Ordinance provides the following:

If the Staff Committee record of their hearing is full

and complete, the Hearing Officer may determine that

the record is the only evidence that is necessary.

However, the Hearing Officer may determine that

additional evidence and oral or written testimony,

including cross-examination, is necessary to properly

evaluate the Staff Committee's action and render a

decision as to its validity. The Hearing Officer shall

have the authority to determine the need for additional

evidence and/or testimony.

79. Sections III.3.e.5 and 6 of the Ordinance govern the manner in which

an appeal is filed and the manner in which any hearing conducted by a Hearing

Officer is to be conducted.

80. Section III.3.e.7 of the Ordinance governs a Hearing Officer's

decision:

a. l r e v i e w t h e r e c o r d a l a h s  T h e H e a r n i g O f f i c e r n d

testimony presented at the hearing before the Staff

Committee, if any, and at the Hearing Officer's hearing

....

b. h a l l b e g u i d e d b y t s h r c  T h e H e a r i n g O f f i e e

previously adopted Comprehensive Plan, the adopted 2010

Comprehensive Plan, the Land Development Regulations,

this ordinance, and established case law.

c. e a p p e l l a h n t o s h o w t h t t n o  T h e b u r d e n s h a l l b e u p a t

the decision of the staff or Staff Committee cannot be

sustained by a preponderance of the evidence or the

staff or Staff Committee decision departs from the

essential requirements of law.

d. r m i n a t i o n s h a l l i n c l u e t e d  T h e H e a r i d n O f f i c e r ' s g e

appropriate findings of fact, conclusions of law, and

decisions in the matter of the appeal. The Hearing

Officer may affirm, affirm with conditions, or reverse

the decision of the staff or the Staff Committee.

e. a l l f i l e h i s w r i t t h s r e  T h e H e a e r n g O f f i c i n

determination on each appeal with the Director within

thirty (30) calendar days of the date of appeal hearing

and a copy shall be provided to the City Clerk and the

applicant.

81. Section IV of the ordinance governs the determination of whether an

applicant's development rights in property have vested. Section IV.A of the

ordinance provides two situations where development rights will be considered

vested: "common law vesting" and "statutory vesting".

C. n i t s e V y g r t u t a t S  o .

82. Section IV.1.b. of the Ordinance deals with statutory vesting and

provides:

b. i t s e V y r o t u t a t S  n g

(1) t e u n i t n o c o t r o p o l e  T h e r i h g t t o d e v h e

development of property shall be found to exist if:

A valid and unexpired final development order was

issued by the City prior to February 1, 1990,

substantial development has occurred on a significant

portion of the development authorized in a single final

development order, and is completed or development is

continuing in good faith as of July 16, 1990....

 . . .

83. Section II of the Vesting Ordinance, the definitional section, defines

the terms "continuing good faith," "final development orders" and "substantial

development," as used in the above-quoted Section IV.1.a. and b., as follows:

. . .

2. s u s e d i n t A h s o r d i n a n i c . T  C O N T I N U H I G G O O D F A I N e

shall mean the final development order for a project

has not expired, and no period of ninety (90)

consecutive days passes without the occurrence on the

land, of development activity which significantly moves

the proposed development toward completion, unless the

developer establishes that such ninety (90) day lapse

in development activity was due to factors beyond the

developer's control or unless development activity

authorized by a final development order has been

completed on a significant portion of the development

subject to said final development order and has

significantly moved the entire development toward

completion. (emphasis supplied).

. . .

5. T h e f o l l o w i n g u n e x p i r . S R E  F I N A L D E V e E O P M E N T O R D L d

development orders shall be considered to be final

development orders for purposes of a determination of

vested rights in a previously-approved development:

a. Exempt subdivision;

b. Minor subdivision;

c. Preliminary subdivision plat approval;

d. Final subdivision plat approval;

e. l ( p u r s u a a t t o C o u n n v o r  F i n a l s i t e p l a n a p p t y

Ordinance 88-16);

f. Approval of a P.U.D. concept plan;

g. Approval of a P.U.D. final development plan;

h. Building permit; and

i. Any 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.

. . .

8. A s u s e d i n t h i s o r d i n a n . T N E  S U B S T A N T c I L D E V E L O P M A e

shall mean that all required permits necessary to

continue the development have been obtained; permitted

clearing and grading has commenced on any significant

portion of the development subject to a single final

development order; and the actual construction of water

and sewer lines, or streets, or the stormwater

management system, on said portion of the development

is complete or is are progressing in a manner that

significantly moves the entire development toward

completion.

D. Centervillage's Application.

84. Centervillage contends that it is entitled to a determination of

vested rights under both the statutory and common law vesting provisions of the

Ordinance. Centervillage did not present argument in support of its claim for

statutory vesting before the Staff Committee or at the final hearing conducted

on November 26, 1990. Instead, Centervillage relies on two exhibits to its

Application for Vested Rights, Exhibits F and H, in support of its appeal of the

Staff Committee decision. These exhibits are not persuasive.

85. The Centervillage argument for statutory vesting is contained in

Exhibit H-1 and consists of a two paragraph statement. First, Centervillage

argues that it has received a final development order based upon the approval by

the City of Centervillage's minor subdivision application in May 1988, the

issuance of County Environmental Management Permit #89-230, and the approval by

the City of Centerville's application to rezone the Property to "CP Commercial

Parkway with a limited use site plan."

86. Second, in Exhibit H-1, Centervillage contends that "substantial

development" has occurred on the Property and cites documentation contained in

Exhibit F in support of its argument. Exhibit F, in essence, consists of a brief

description of costs associated with land acquisition and sitework on the

Property and a copy of a standard form contract between Centervillage and an

excavating company. Centervillage failed to meet its burden to show that the

development has continued in good faith as "continuing good faith" is defined in

Section IV of the Ordinance.

87. Centervillage has failed to prove that the decision of the Staff

Committee to deny its application on the theory of statutory vesting is not

supported by a preponderance of the evidence or that the decision departs from

the essential requirements of law.

88. The decision in this appeal is based only on the common law vesting

provisions of the Ordinance.

E. Common Law Vesting.

89. Common Law vesting is defined in the Ordinance as follows:

A right to develop or to continue the development of

property notwithstanding the 2010 Comprehensive Plan

may be found to exist whenever the applicant proves by

a preponderance of evidence that the owner, acting in

good faith upon some act or omission of he City, has

made a substantial change in position or has incurred

such extensive obligations and expenses that it would

be highly inequitable and unjust to destroy the right

to develop or to continue the development of the

property.

(Section IV.1.a of the Ordinance.)

90. Common law vesting under the ordinance contains essentially the same

elements of proof as those required to establish equitable estoppel pursuant to

case law. Florida courts have described the doctrine of equitable estoppel 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

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.

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

Key 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).

F. Elements of Equitable Estoppel in this Case.

92. Good Faith.

93. The evidence in this case establishes that Centervillage has acted in

good faith throughout negotiations with state and local government agencies

which went on for several years. To the extent that prior improper development

activity on the property could be argued as evidence of bad faith, these actions

are not attributable to Centervillage but to its predecessor in title.

94. The agreements reached as a result of good faith negotiations

benefitted Centervillage, to the extent that it was allowed to proceed with

development of the Property according to its plans.

95. Based upon the evidence and the testimony at the Final Hearing in this

case, Centervillage has established that it acted in good faith in its

negotiations and subsequent agreements with the state and local agencies

involved.

96. Reliance on Acts and/or Omissions.

97. Centervillage has proved that it relied on various acts of government

agencies in proceeding as it did with its development plans for the Property.

The evidence in this case establishes that Centervillage relied on the

environmental permits issued by the State and County before extensive site work

was done in June of 1989.

98. Petitioner relied on the assurances of County environmental officials

that the County would cooperate with Centervillage in its plans to develop the

Property where appropriate. In exchange for this government cooperation,

Centervillage incurred substantial costs and obligations pursuant to its

conceptual agreement with the County.

99. The City contends that Centervillage did not rely on any act or

omission of the City. First, the City argues that many of the obligations

Centervillage incurred were in mitigation for improper development activity

which occurred on the Property prior to Centervillage's ownership. In addition,

the City contends that the acts relied on by Centervillage were, for the most

part, acts of the County.

100. The evidence in this case establishes that the efforts of

Centervillage in creating wetlands, developing the 7.57 acre stormwater

facility, and in reforesting portions of the Centerville canopy road were, at

least in substantial part, in mitigation for prior improper development activity

on the Property by prior owners. However, the evidence also shows the decisions

made with respect to the extent and type of mitigation were the result of give

and take negotiations between Centervillage and state and local environmental

officials. Centervillage agreed to extensive mitigation in exchange for

cooperation it received from state and county officials in its successful

efforts to obtain various environmental permits.

101. The City has cited no authority for the proposition that development

activity taken as a result of a negotiated mitigation agreement cannot establish

evidence of a change in position in reliance on government's acts and/or

omissions. The fact that significant portions of the obligations Centervillage

has incurred were in mitigation for prior improper acts is relevant in weighing

the evidence of good faith reliance. These facts do not, however, cancel the

evidence. On balance, Centervillage has proved that it accomplished a costly

change in position after achieving the agreement of local government and after

receiving a series of permits based upon those agreements.

102. The agreements reached as a result of long term negotiations between

Centervillage and local government benefitted Centervillage, the County, and the

City. Centervillage was permitted to proceed with its plans to develop a major

shopping center. The County was able to construct an extensive drainage system

for the stormwater runoff generated by its road improvement project. The City

will receive a large stormwater facility which serves substantially more land

area than the Property and will become a major component of the total drainage

system for the City of Tallahassee.

103. The argument put forth by the Respondent that it was the County, not

the City, who issued the environmental permits is not persuasive. The evidence

establishes that at the time the permits were issued the city had no

environmental ordinance. The City relied on County environmental officials in

making land use decisions. In practice and effect, the County was acting on

behalf of the City in granting local environmental permits. This was the only

local government environmental permitting system in existence at the time, and

Centervillage was required to deal with that system.

104. Centervillage also proved that the City was aware of the conceptual

agreement it made with the County. The evidence shows that the City was

consulted with respect to the plan to have Centervillage obtain necessary land

for the large stormwater facility. The City was aware that the conceptual

agreement obligated Centervillage to construct what would become a major

component of the City's drainage system. The Respondent understood that the

stormwater facility and the land would be conveyed to the City and agreed to

maintain the system in the future.

105. The City correctly points out that the evidence fails to show any

specific land use commitment on its part during the development of the

conceptual agreement. However, the evidence does show that such commitments

were made in the agreement. Paragraph 8 of the agreement provides that the

County "shall allow Centervillage to develop the southwest corner of Parcel A

(fronting on Capital Circle N.E. and Centerville Road) to its fullest commercial

potential subject only to existing ordinances, terms and conditions of the

limited use site plan, approval of subsequent short-form applications for

environmental management permits, and Leon County Environmental Management

Permit Number 88-0299. " This paragraph concludes with a provision that portions

of the Property will no longer be "protected from development." (App. Ex. G, G-

8 ). The evidence also shows that the City agreed to accept a substantial

benefit pursuant to the agreement. Based on the facts developed at the final

hearing in this case, the City cannot, in fairness, simply disavow selective

portions of the agreement. See, Killearn Properties, Inc. V. City of

Tallahassee, 366 So.2d 172 (Fla. 1st DCA 1979).

106. It is true that Centervillage has not established that it had

received specific density or intensity of use approval from the City.

Centervillage received notification from local government authorities that its

project was exempt from a separate site plan ordinance. Centervillage correctly

argues that the absence of specific approvals such as building permits , under

case law in Florida, does not preclude vesting of development rights in

property. See, Town of Largo v. Imperial Homes Corporation, 309 So.2d 571 (Fla.

2d DCA 1975).

107. Centervillage has proved that it relied in good faith on a series of

environmental permits and on the conceptual agreement in proceeding with its

development plan. In addition, Centervillage argues that it relied on the

various zoning approvals it obtained from the City.

108. The City points out that Section IV.1.c of the Ordinance provides:

"zoning classification or a rezoning does not guarantee or vest any specific

development rights." The City also correctly argues that this provision in the

Ordinance is consistent with case law. See Miami Beach v. 8701 Collins Ave., 77

So.2d 428 (Fla. 1955); Pompano Beach v. Yardarm Restaurant, Inc., 509 So.2d 1295

(Fla. 4th DCA 1967); Lauderdale Lakes v. Corn, 427 So.2d 239 (Fla. 4th DCA

1983); and Gainesville v. Cone, 365 So.2d 737 (Fla. 1st DCA 1978).

109. However, in this case, Centervillage has proved that it did not rely

solely on the zoning decisions of the city. Instead, the evidence shows that

Centervillage engaged in extensive negotiations with state and local government

over a period of several years. The record in this case reflects several

agreements with local government leading to numerous permits being issued to

Centervillage. The record also reflects that Centervillage acted in reliance on

these agreements and permits in proceeding with development of the Property.

110. Centervillage cites to several Florida cases in support of its

argument for common law vesting. One such case is the decision of the Third

District Court of Appeal in Board of County Commissioners v. Lutz, 314 So.2d 815

(Fla. 3d DCA 1975). In Lutz, the Petitioners incurred extensive financial

obligations and expenses in reliance on rezoning of their property. The Court

found that this rezoning was granted after the Petitioners had negotiated,

planned, and fulfilled local government requirements in activities lasting over

one year. 314 So.2d at 816. In Lutz, the Court applied the doctrine of

equitable estoppel to prevent local government from rescinding its prior

rezoning decision. Id. The facts in this case are sufficiently similar to

Lutz to justify reliance on that decision as persuasive authority in this Final

Order.

111. In City of Lauderdale Lakes v. Corn, 427 So.2d 237 (Fla. 4th DCA

1983), the Court found facts remarkably similar to those present in this

case. n c e o n t h e a c t s o a f o c a l g o v e r n m e n l t i e  I n C o r n , t h e p r l o e r t y o w n e r , i n r p ,

engaged in extensive site work which resulted in a substantial change to the

nature and contour of the land and in a complete alteration of its drainage

system. Id., at 241-243. In Based on the facts in Corn, the Fourth District

Court of Appeal applied the doctrine of equitable estoppel against the City,

thereby vesting development rights in the property against an attempted change

in zoning. Id.In May, 1989, Centervillage received Environmental Management

Permit #89-0230 from the County. This permit contemplates the addition of

630,000 square feet of impervious surface on the Property. In June, 1989,

Centervillage engaged in extensive site work and placed 50,000 to 60,000 cubic

yards of fill material on the Property. Centervillage has established that the

majority of the current improvements to the Property began within days of the

issuance of an environmental permit which was important to future plans to

develop a major shopping center. This development activity is also in the same

time period in which the conceptual agreements Centervillage began entering into

with the County several years before were finalized for formal approval by the

Leon County Commission.

112. Obligations and Expenses Incurred.

113. Centervillage has proved, by a preponderance of the evidence, that it

made substantial changes in position in reasonable reliance on acts and/or

omissions of the City and, in the process, incurred substantial obligations and

expenses.

114. In May and June of 1989, Centervillage purchased additional adjoining

acreage and proceeded to begin construction of the large stormwater facility

located on the Property, thereby, incurring substantial expenses in order to

meets its obligations under the conceptual agreement negotiated with the County.

Pursuant to the conceptual agreement, several acres of Centervillage's property

will be conveyed to local government. The evidence shows Centervillage incurred

$175,000.00 in expense in purchasing additional property in order to construct

this stormwater facility.

115. It is difficult to establish a specific dollar amount in terms of

Centervillage's overall development expenses in this case. As the City points

out, substantial costs were incurred by the developer in mitigation of prior

improper alterations to the property by Centervillage's predecessor in title.

However, the record does reflect that Centervillage spent hundreds of thousands

of dollars in plans, engineering and site work in reliance on government

approvals which permitted continuation of the planned development of the

Property.

116. Centervillage has proved that it has incurred expenses and

obligations in proceeding with its development sufficient to establish this

element of equitable estoppel. Florida cases relied on by Centervillage in its

argument are in accord with this conclusion. See, Bregar v. Britton, 75 So.2d

753 (Fla. 1954), ($28,000 in site preparation sufficient to establish equitable

estoppel); Board of County Commissioners of Metropolitan Dade County v. Lutz,

supra, ($100,000 sufficient to vest development rights); Town of Longboat Key v.

Mezrah, 467 So.2d 488 (Fla. 2d DCA 1985) (permitting and planning expense of

$40,000 sufficient); and Town of Largo v. Imperial Homes Corporation, supra,

($60,000 in interest, taxes, fees and other development costs sufficient).

117. There is a common theme throughout the cited cases where the courts

have applied the doctrine of equitable estoppel which is not apparent in this

case. Typically, these cases involve situations where local government attempts

an abrupt change in previously approved or existing zoning after a property

owner has relied on such approvals or existing land use regulations. See,

Hollywood Beach Hotel Company v. City of Hollywood, 329 So.2d 10 (Fla. 1976),

Town of Largo v. Imperial Homes Corporation, supra, and, Board of County

Commissioners of Metropolitan Dade County v. Lutz, supra. Precipitous and

arbitrary zoning changes, along with unreasonable delaying tactics, prompted the

Court, in the previously cited case of Hollywood Beach Hotel Company v. City of

Hollywood, to charge the City with "unfair dealing" in applying equitable

estoppel to those facts. 329 So.2d at 18. No such facts exist in this case.

118. Here, the City acted in good faith to comply with the mandate of the

state legislature in attempting to develop, adopt, and implement the 2010

Comprehensive Plan. Florida courts have not been hesitant to "... recognize an

increasing awareness on the part of local governments of the growth problems

which vitally affect many of the communities in Florida." Town of Largo v.

Imperial Homes Corporation, supra, 309 So.2d at 574. But the Court in Imperial

Homes also recognized that these important efforts to deal with growth should

not be accomplished in a such a manner as to mislead parties who "in good faith

rely to their detriment upon the acts of their governing bodies." Id.

119. The Petitioner has proved that the action of the Staff Committee, in

disapproving the application for vested rights submitted by Centervillage,

cannot be sustained by a preponderance of evidence

ORDER

Based upon the Finding of Fact and Conclusions of Law, it is

ORDERED that the denial of Petitioner's Application by the Staff Committee

is REVERSED. Centervillage's rights to develop the Property are vested against

the 2010 Comprehensive Plan.

DONE AND ENTERED this __27th__ day of December, 1990, in Tallahassee,

Florida.

_______________________

JAMES W. YORK

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

904/488-9675

FILED with the Clerk of the

Division of Administrative Hearings

this __27th__ day of December, 1990.

APPENDIX TO THE FINAL ORDER

The following rulings are made on the proposed findings of fact submitted

on behalf of the Petitioner, Centervillage Limited Partnership:

1. The proposed findings of fact in paragraphs 1-22, 27-30, and 33-36 of the

Petitioners Proposed Final Order are adopted in material part by the Final

Order.

2. The proposed findings of fact in paragraphs 24, 26 and 31-32 of the

Proposed Final Order are rejected as cumulative and not necessary to the

conclusions reached.

3. The Proposed finding of fact contained in paragraph 37 is rejected in that

this proposed finding is not supported by the evidence. The exhibit referred to

(Appellant's Exhibit 4) relates to property in which the application for vested

rights has been approved.

4. In this lengthy proposed finding of fact, Petitioner relies on ten files

containing previously approved applications for vested rights filed by other

property owners. This composite exhibit (Appellant's Exhibit 6) was accepted

over the objection of the Respondent. To the extent that the composite exhibit

could be helpful to support Petitioners contention that the Respondent's action

in disapproving Petitioners application is unreasonable (in comparison to the

prior approvals for others), the applications contained in the exhibit are

relevant. However, the issue of common law vesting must be determined on the

basis of specific facts developed in individuals cases. On the strength of the

applications submitted here, without additional development of facts, this

composite exhibit does not have sufficient weight to warrant findings of fact in

this Final Order.

The following rulings are made on the proposed findings of fact submitted

on behalf of the Respondent, City of Tallahassee:

1. The proposed findings of fact in paragraphs 1-16, 19, 22-28, 31, 34-36, and

38-41 of the Respondent's Proposed Final Order are adopted in material part by

the Final Order.

2. The proposed finding of fact in paragraph 20 is adopted so far as the

finding relates to any "substantial" costs.

3. The proposed findings of fact in paragraphs 17 and 21 are rejected in that

these proposed findings are not supported by the evidence.

4. The proposed findings of fact in paragraphs 18, 29-30, 32-33, and 37 are

rejected as cumulative and not necessary to the conclusions reached.

Copies furnished:

Russell D. Gautier, Esquire

306 East College Avenue

Tallahassee, Florida 32301

Patrick E. Hurley, Esquire

John H. Sytsma, Esquire

HENRY, BUCHANAN, MICK & ENGLISH, P.A.

117 South Gadsden Street

Post Office Drawer 1049

Tallahassee, Florida 32302

Sandy O'Neal, Clerk

Board of County Commissioners

Leon County Courthouse

Tallahassee, Florida 32301

Mark Gumula

Director of Planning

Tallahassee-Leon County Planning

Department

300 South Adams Street

Tallahassee, Florida 32301

NOTICE OF APPEAL RIGHTS

Judicial review of this decision is available to the Petitioner and

Respondent and shall be by common-law certiorari to the Circuit Court of the

Second Judicial Circuit.