Franklin County v. Leisure Properties, Ltd. by Brown

• Decision Date: 09 March 1983
• Docket Number: Nos. AD-395,AE-227 and AF-112,s. AD-395
• Parties: FRANKLIN COUNTY, a political subdivision of the State of Florida, and Corey Henriksen, the Building Official of Franklin County, Appellants, v. LEISURE PROPERTIES, LTD., a Florida limited partnership, by Gene D. BROWN and John R. Stocks, as its General Partners and Musgrave Development, Inc., a Florida corporation, Appellees.
• Court: Florida District Court of Appeals

Page 475

430 So.2d 475

FRANKLIN COUNTY, a political subdivision of the State of Florida, and Corey Henriksen, the Building Official of Franklin County, Appellants, v. LEISURE PROPERTIES, LTD., a Florida limited partnership, by Gene D. BROWN and John R. Stocks, as its General Partners and Musgrave Development, Inc. a Florida corporation, Appellees.

Nos. AD-395, AE-227 and AF-112.

District Court of Appeal of Florida First District.

March 9, 1983.

As Clarified on Denial of Rehearing April 29, 1983.

Jerry W. Gerde of Davenport, Johnston, Harris & Gerde, P.A., Panama City; and Alfred O. Shuler of Shuler & Shuler, Apalachicola, for appellants.

Thomas G. Pelham and David S. Dee of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., Tallahassee, for appellees.

Jane Heerema of Roberts, Egan & Routa, P.A., Tallahassee, for the State Ass'n of County Com'rs, amicus curiae.

Stephen W. Metz, Tallahassee, and Robert M. Rhodes and James Hauser of Messer, Rhodes & Vickers, Tallahassee, for Florida Home Builders Ass'n, amicus curiae.

PER CURIAM.

Franklin County appeals summary judgments granted Leisure Properties, Ltd. (Leisure) and Musgrave Development, Inc. (Musgrave) on Counts II, III, IV, and VI of Leisure and Musgrave's consolidated complaint. Musgrave cross-appeals the summary judgment on Count II. We affirm in part and reverse in part.

Leisure purchased approximately 3,000 acres on St. George Island in 1971. Included were the parcels of land which are the subject of this appeal, the "commercial lots" and the "commercial acreage."

In 1972 Franklin County adopted a resolution of intention to establish a land use plan ¹ for the county in order to protect the seafood industry. In 1974 Leisure submitted a request for a development of regional impact (DRI), ² proposing 3,000 housing units on 800 acres on the island, but not including the "commercial lots" and "commercial acreage." The county found the proposed density level too high. In June of 1975, after lengthy negotiations, the county approved the DRI with 2,200 multi-family units, subject to 30 conditions. Leisure chose not to proceed under this DRI order because of the numerous restrictions.

During the DRI negotiations the county was preparing its land use plan. Leisure requested that the plan allow multi-family construction on St. George Island. The plan provided that "multi-family housing should be encouraged to locate along the waterfront to take advantage of the impressive vistas" and stated that, "[i]ncreased concentration of population in the medium-density housing types will also provide the opportunity for more people to live in shoreline locations, while barring the necessity of utilizing every foot of shoreline for private development." Ordinance 75-7, enacted in late 1975, permitted multi-family housing in the area zoned C-3 Tourist Commercial, of which the subject parcels are a part.

Prior to the enactment of the ordinance, by letter of September 12, 1975, Leisure requested the county's permission to install water pipes on a county right-of-way to connect its property with a proposed 300,000-gallon water tank near the southern end of the bridge and causeway connecting the island with the mainland. Leisure introduced evidence that the system cost at least $800,000 and was designed to serve multi-family as well as single-family housing.

In March of 1977 Leisure filed a second DRI application, which was approved in September, 1977. It permitted less multi-family construction than had the first DRI. Leisure introduced evidence that it would not have agreed to this DRI had it not secured the favorable zoning for its property in the Tourist Commercial area.

On June 7, 1977, Leisure agreed to sell Roger Newton sixteen lots in Unit I of the Old Subdivision. These lots, like the commercial lots involved in this appeal, were zoned C-3 Tourist Commercial, for which multi-family construction was a permitted use. On June 8, Leisure agreed to sell Musgrave Development, Inc. a large tract of land known as Unit 4 for $2,300,000, with a down payment of $50,000. On December 8, 1977, Roger Newton applied for a building permit to build 48 units of multi-family housing on his sixteen lots. His plans at first did not meet building code requirements, and he was permitted to withdraw and resubmit them with revisions. On January 12, 1978, Newton finally was able to satisfy the planning commission's requirements. By a 5-2 count, the commission voted to authorize the building official to issue Newton a permit. On January 17, the county commission approved Newton's permit by a 3-2 vote. Two of the three commission members who voted to approve the permit stated that they were against condominiums but could see no legal way to deny the application. The commission unanimously voted to authorize its attorney to draft an ordinance barring the development of additional condominiums on St. George Island. During the Newton application process Graham Armistead, a local resident, applied for and was granted a permit to construct a motel, the Buccaneer Inn, near the Newton project and the commercial lots.

On February 6, 1978, Leisure submitted plans virtually identical to Newton's to develop its commercial lots; and at the same time, it submitted plans for condominium development on the commercial acreage. On February 7, the county commission voted to begin immediately advertising a notice of intent to consider the amendment which was to become Ordinance 78-2, barring condominium development.

The building official testified that he did not review Leisure's plans because he had submitted them to the county and planning commissions. The plans for Leisure's two proposed developments were found to be "incomplete and insufficient" by the planning commission on February 9 and were hand-returned to Leisure's office without comment and without calling to Leisure's attention the fact that the plans had been left at the office. Leisure was notified by letter of February 21, 1978, that no more multi-family dwellings would be allowed in the commercial areas. On February 28, 1978, Ordinance 78-2 was adopted. On July 17, 1978, the ordinance was invalidated because it had been enacted without proper notice. ³

During the period when Leisure was attempting to acquire the permits, Franklin County officials voiced their opposition to the development of Unit 4 and their desire that it should be publicly owned. Leisure tried to placate the county and worked out a deal with Musgrave, wherein Leisure paid Musgrave $25,000 and, on July 27, 1978, conveyed the commercial lots to Musgrave along with building plans for the parcel, applying $25,000 of the $50,000 Musgrave had paid Leisure on Unit 4 to the down payment on the commercial lots, and giving Musgrave a $25,000 "kicker for them to get out of the Unit 4 deal." As part of the transaction, Leisure also executed a document entitled "Transfer of Right in Building Permit Application," which purportedly granted Musgrave whatever rights Leisure had in securing a multi-family building permit on the commercial lots. Leisure ultimately sold Unit 4 to the Trust for Public Lands.

On July 31, 1978, Musgrave's agent communicated to the building official his desire to get a building permit for the commercial lots. The application was placed on the agenda for the August 9, 1978, planning commission meeting. On August 1, 1978, the county commission adopted Emergency Ordinance 78-7, providing for a one-year moratorium on the issuance of all building permits for multi-family construction. Musgrave's agent appeared before the planning commission on August 9 to have the plans for the parcel reviewed again. However, the commission refused to discuss the feasibility of the proposal, stating that the application was "insufficient or incomplete, lacking details of sewage plans." On August 17, the county commission readopted Ordinance 78-2 as Ordinance 78-8.

In December of 1978, Leisure and Musgrave sued the county. The consolidated complaint contained six counts, on four of which Leisure/Musgrave were granted summary judgments:

Count II: Musgrave sought declaratory and injunctive relief, alleging that the county's denial of Musgrave's application for a permit constituted a denial of equal protection, and asking the court to order the county to issue Musgrave a permit.

Count III: Leisure and Musgrave asked the court to invalidate the moratorium ordinances.

Count IV: Leisure and Musgrave sought a declaratory judgment invalidating Ord. 78-8, which eliminated multi-family construction as a permissible use of the C-3 Tourist Commercial zone.

Count VI: Leisure and Musgrave asked the court to declare that they had a vested right to use their property for multi-family development, claiming the county was equitably estopped to enforce Ord. 78-8 or to re-zone their property to prohibit multi-family development.

During the period from 1978 through early 1979 the county was seeking funding in order to comply with the Local Government Comprehensive Planning Act, section 163.3177 et seq., Florida Statutes (1975). The money did not come through until October 16, 1979. Meanwhile the county adopted two more moratoria, extending the ban on multi-family construction until the new comprehensive plan was finally...