Glisson v. Alachua County

• Decision Date: 12 January 1990
• Docket Number: No. 88-2111,88-2111
• Citation: 558 So.2d 1030
• Parties: 15 Fla. L. Weekly D187 J.T. GLISSON, et al., Appellants, v. ALACHUA COUNTY, Appellee, and The National Wildlife Federation, Inc. and the Florida Wildlife Federation, Inc., Intervenors-Appellees, and The Florida Department of Community Affairs and 1000 Friends of Florida, Inc., Amicus Curiae-Appellees.
• Court: Florida District Court of Appeals

Page 1030

558 So.2d 1030

15 Fla. L. Weekly D187

J.T. GLISSON, et al., Appellants, v. ALACHUA COUNTY, Appellee and The National Wildlife Federation, Inc. and the Florida Wildlife Federation, Inc., Intervenors-Appellees, and The Florida Department of Community Affairs and 1000 Friends of Florida, Inc., Amicus Curiae-Appellees.

No. 88-2111.

District Court of Appeal of Florida First District.

Jan. 12, 1990.

Rehearing Denied April 18, 1990.

William O. Miller, G. Stephen Parker, Robert B. Baker, Jr., Southeastern Legal Foundation, Inc., Atlanta, Bruce Brashear, of Watson, Folds, Steadham, Christmann & Brashear, Gainesville, for appellants.

Thomas A. Bustin, County Atty., and Thomas D. MacNamara, Asst. County Atty., Gainesville, Charles L. Siemon, and Andrew C. Stansell, of Siemon, Larsen & Purdy, Chicago, Ill., for appellee Alachua County.

David J. White, Atlanta, for Nat. Wildlife Federation.

Tim Keyser, Interlachen, for Fla. Wildlife Federation.

John O. McKirchy, Gen. Counsel, Fla. Dept. of Community Affairs, Tallahassee, amicus curiae.

Joseph Z. Fleming, of Joseph Z. Fleming, P.A., Miami, for 1000 Friends of Florida, Inc., amicus curiae.

JOANOS, Judge.

This appeal concerns land use regulations adopted by the Alachua County Board of County Commissioners which will impact on appellants' future use of their property. Appellants, owners of real property located in the Cross Creek area of Alachua County, seek review of a final judgment granting Alachua County's motions for involuntary dismissal and partial summary judgment as to various counts of appellants' second amended complaint. Appellants contend that (1) the trial court erred in finding that the challenged amendments and regulations were an exercise of the county's police powers, and in applying the standard of review applicable to police power actions; or alternatively, that if this is an application of the police power, it is one which requires compensation to the landowners; (2) the trial court erred in finding that Counts II through VIII of appellants' second amended complaint were rendered moot due to the subsequent enactment of Comprehensive Plan Amendment 5-87 (CPA-5-87); and (3) the trial court erred in finding that appellants failed to demonstrate that the challenged ordinance caused them to suffer any adverse economic impact. We affirm on all issues.

Pursuant to the provisions of its comprehensive plan, Alachua County designated the Cross Creek region as a special study area. The Cross Creek Special Study Area includes 3,100 acres lying on either side of Cross Creek, between Orange Lake and Lake Lochloosa in southeast Alachua County. The area contains the site of the Marjorie Kinnan Rawlings house (a State of Florida Historic Site). There is little development in the area, and it is surrounded by the Lochloosa Wildlife Management Area and the two lakes. The two lakes and the Cross Creek body of water have been designated as Outstanding Florida Waters. See § 403.061(27)(a), Fla.Stat. (1987).

Appellants are eighteen landowners in the Cross Creek Special Study Area. Their holdings range from less than one acre to 522 acres, held by Mr. Ernest Southward, as trustee for several investors in the property. Appellants Southward and Brown purchased property in the Cross Creek area for development purposes. Other appellants are long-term residents or property owners in or near Cross Creek.

On August 13, 1985, the Alachua County Board of County Commissioners adopted CPA-5-85 as an amendment to the Alachua County Comprehensive Plan. The amendment established specific development guidelines for the Cross Creek area, and was the culmination of the special study of the Cross Creek area. The study contained three general sets of guidelines or policies for the Village Center development area and the Village periphery development area, four resource protection areas, and general development guidelines. The resource protection areas are the wetlands, exceptional upland habitat, hammock zones, and active use zones.

The wetland areas are restricted from all construction activity, except minor accessory uses. Under the regulations, permitted density could be transferred at a rate of one unit per five acres, where there was appropriate contiguous property under the same ownership. Areas designated as exceptional upland habitat are considered conservation areas, where only one dwelling unit per five acres is permitted. Lot sizes are reduced to one acre and the remaining four acres of the area are to be protected in their natural state. Removal of the existing indigenous vegetation is discouraged, except for bona fide agricultural practices on existing farm lands. The hammock zones are designated as areas which will serve as wildlife habitats of secondary value and generally act as transitional zones to buffer the conservation areas. In the Village periphery, one dwelling unit per five acres is permitted on lot sizes of one acre, clustered so as to preserve the most sensitive or unique areas. The active use zones are designated as areas having comparatively little ecological value, and will be the focus of future development. No active use is permitted within a radius of 750 feet of an eagle nest. Within an additional 750 feet, all residential density has to be transferred to appropriate contiguous property under the same ownership.

CPA-5-85 existed without change or amplification until December 22, 1987, when the Commission adopted Ordinance 87-25. Ordinance 87-25 modified CPA-5-85 by adding provisions for variance applications and created a system for transfer of development rights (TDR's) within the study area to qualifying property within an urban cluster. Under CPA-5-85, if TDR's were issued, they could only be used outside the Cross Creek area, because no urban cluster is located in Cross Creek. With the passage of Ordinance 87-25 two years later, a property owner could transfer density in a restricted use zone to appropriate contiguous property under the same ownership, or to appropriate adjoining property not under the same ownership if all the affected properties were presented for development as a planned unit development (PUD).

Evidence adduced at trial indicated that the areas designated as exceptional upland habitat and hammock are found throughout Alachua County, and are not unique to the Cross Creek area. In addition, there was evidence that many of these areas had been disturbed, either by timbering or by agricultural activities, and that only six of the forty-five active eagles' nests in Alachua County are located in the Cross Creek area. Expert testimony indicated that farming, and cattle grazing are not economically feasible in the Cross Creek area. According to the expert witness, the restrictions imposed under Ordinance 87-25 and CPA-5-85 make it unlikely that a prospective buyer would consider purchasing the property for agricultural purposes. In addition, testimony from a land planner and developer indicated that the value of the individual parcels of property in Cross Creek had been seriously reduced as a result of Ordinance 87-25, and that individual property owners had been denied beneficial uses of their property. The record reflects that appellants Southward, Glisson, and Brown expended varying sums of money prior to passage of CPA-5-85 to prepare their land for residential development. Although Mr. Glisson's plan had received conceptual approval, after passage of CPA-5-85, he was advised by the County Attorney's office that conceptual approval did not entitle a property owner to obtain a permit of any kind. Due to the advice he received from the county attorney, and his personal knowledge of the unsuccessful development approval efforts of Mr. Southward and Mr. Brown, Mr. Glisson considered that any further expenditures for obtaining development permits would be futile.

The county agrees that appellants' property located in the special study area would be more valuable if appellants were free to develop it for use as recreational vehicle and mobile home parks, condominiums, or at suburban intensities. On the other hand, the record reflects that only one appellant has applied for development approval since the adoption of CPA-5-85, and that his application was approved, and the subdivided lots were sold for a substantial sum.

The trial court granted summary judgment with regard to Counts I through VII of the amended complaint, finding these counts moot because they were directed to CPA-5-85, the plan amendment that had been repealed. At the close of appellants' case, the trial court granted Alachua County's motion for involuntary dismissal as to Counts IX, XI, XII, and XIII, finding that appellants had not demonstrated that the challenged ordinance was arbitrary or capricious, or that it denied the appellant landowners substantial economic use of their land.

The first issue concerns appellants' contention that the land use regulations promulgated by the county constitute an attempt to exercise the power of eminent domain, disguised as an exercise of the police power. In support of this contention, appellants assert that the language of the comprehensive plan amendments and zoning ordinance 87-25, together with trial testimony concerning specific details of the regulations and their impact on appellants' property, demonstrate that the Cross Creek plan constitutes the creation of a "public benefit." Appellants further assert that the evidence demonstrates that the boundaries for application of the Cross Creek plan were drawn on the assumption that the state would buy and preserve the surrounding area, and restrictions were accordingly imposed in the Cross Creek area to conform land uses in the area to those uses in the surrounding areas which are under state ownership. In essence, appellants contend that as owners of property in the Cross Creek area, they are entitled to compensation because the regulations require them...