Killearn Properties, Inc. v. Department of Community Affairs
| Citation | 623 So.2d 771 |
| Decision Date | 16 August 1993 |
| Docket Number | 92-00309,92-00370 and 92-00507,Nos. 92-00251,s. 92-00251 |
| Court | Florida District Court of Appeals |
| Parties | 18 Fla. L. Week. D1837 KILLEARN PROPERTIES, INC., Appellant, v. DEPARTMENT OF COMMUNITY AFFAIRS, Appellee. SOUTHERN HERITAGE DEVELOPMENT, INC., Seay Enterprises, Inc., and Jimmy Boynton Realty, Inc. (Kinhega Landing), Appellants, v. DEPARTMENT OF COMMUNITY AFFAIRS, Appellee. Stephen STOUTAMIRE, H. Louis Hill and H. Louis Hill, Jr. (Kinhega Oaks), Appellants, v. DEPARTMENT OF COMMUNITY AFFAIRS, Appellee. LEON COUNTY, Florida, Appellant, v. DEPARTMENT OF COMMUNITY AFFAIRS, Appellee. |
Alan C. Sundberg, W. Douglas Hall, and Nancy G. Linnan, of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., Tallahassee, for appellant Killearn Properties, Inc.
Frank E. Matthews, Elizabeth C. Bowman, and Cecelia C. Smith, Hopping, Boyd, Green & Sams, Tallahassee, for amicus curiae Ass'n of FL Community Developers, Inc.
Michael P. Bist, Gardner, Shelfer & Duggar, P.A., Tallahassee, for appellants Southern Heritage Development, Inc., Seay Enterprises, Inc., and Jimmy Boynton Realty, Inc.
Guyte P. McCord, III, Macfarlane, Ferguson, Allison & Kelly, Tallahassee, for appellants Stephen Stoutamire, H. Louis Hill, and H. Louis Hill, Jr.
Herbert W.A. Thiele, County Atty., Julie E. Lovelace, Sr. Asst. County Atty., and Cassandra K. Jackson, Asst. County Atty., Tallahassee, for appellant Leon County, FL.
David L. Jordan, Asst. Gen. Counsel, and G. Steven Pfeiffer, Gen. Counsel, Dept. of Community Affairs, Tallahassee, for appellee.
This cause is before us on appeal from a final order of the Department of Community Affairs (DCA), finding appellants in violation of a development order (DO). Appellants raise myriad issues, but we address: (1) whether the DCA erred in determining that the DO imposed a date on which development was required to be completed; (2) whether the DCA erred in holding appellant Killearn Properties, Inc. (Killearn) responsible for abating violations of the DO by subsequent developers; and (3) whether the DCA should be estopped from enforcing the development order against appellants Kinhega Landing and Kinhega Oaks.
On November 14, 1974, appellant Killearn filed with the Leon County Commission an application for development approval (ADA) of a development of regional impact (DRI). 1 The ADA was prepared using a standard form distributed by DCA's predecessor agency, the Division of State Planning. The form was part of a draft operating manual prepared by the Division as an aid to local governments and regional planning agencies in carrying out their roles under chapter 380. The manual recommended, but did not require, that local governments set specific dates in DOs on which development was required to be concluded, known as "buildout" dates. The manual also recommended, but did not require, that local governments specify circumstances under which the developers receiving DOs would be required to undergo further DRI review. The manual provided as examples of these circumstances, failure to meet any buildout date set forth in the DO, substantial deviation from the terms of the DO, and other factors as may be established by the local government.
Killearn, in preparing its ADA, tracked the form ADA and in response to certain questions therein, made references to a construction schedule of approximately ten years. Killearn, in the ADA, unequivocally represented that units within the development would be connected to a central sewer system as the development occurred. In response to a question as to what assurances the developer would provide that the sewer system would be completed, Killearn cited an agreement it had entered into with a rural electric cooperative for the provision of sewer service. The agreement required the prepayment of a substantial portion of the cost of providing the sewer service.
Leon County was required to provide notice of the ADA to the Division of State Planning and to the Northwest Florida Regional Planning and Advisory Council, and thereafter hold a public hearing on the ADA. Prior to the public hearing, the Northwest Florida Regional Planning and Advisory Council issued its recommendation that Leon County approve the ADA, with certain conditions.
The Leon County Commission held a public hearing on the ADA on March 23, 1976. The minutes of the hearing reflect only that the ADA received "very much discussion." The Commission entered a one-page DO in which it "approved the project as stated" and in which it rejected the recommendations of the Northwest Florida Regional Planning and Advisory Council.
The DO of March 23, 1976, was not recorded in the public records of Leon County. 2 Between 1979 and 1981, Killearn sold certain tracts of land within the DRI to one Perry Bowdin under contracts for deed. J.T. Williams, Jr., chief executive officer and president of Killearn, testified that he informed Bowdin that the tracts of land were within the DRI. The contracts for deed were not presented at the hearing, and Mr. Bowdin did not testify at the hearing. Killearn recorded, in 1979, 1982, and 1987, certain restrictive covenants governing the use of tracts of land sold to Bowdin. These covenants permitted, but specifically did not require Killearn to install, sewers. The covenants also allowed the use of septic tanks in contravention of the DO.
Mr. Bowdin sold part of the property he had purchased to one James Jarrett of the Ocklocknee Management Company, who in turn sold the property to Southern Heritage Development, Inc., Boynton Realty, Inc., and Seay Enterprises, Inc. (Kinhega Landing). The sale to Kinhega Landing was contingent on Mr. Jarrett obtaining approval of a plat for development from Leon County.
In November 1989, the Leon County Commission approved the plat for Kinhega Landing, imposing as a condition that units within the Kinhega Landing development would be required to hook up to a central sewer system if and when such system became available. Kinhega Landing purchased the land for $240,000, paid a $30,000 fee to Jarrett, and obtained a loan of $425,000 to develop the land. Kinhega Landing obtained permits for development from Leon County and the Florida Department of Environmental Regulation. Kinhega Landing began clearing the land and commenced construction of holding facilities for storm-water runoff.
At approximately the same time as the Kinhega Landing purchase, Mr. Bowdin sold another part of the property to Steven Stoutamire, Louis Hill, Sr., and Louis Hill, Jr. (Kinhega Oaks). In purchasing the property, Kinhega Oaks relied upon the plat issued by Leon County, which permitted the use of septic tanks on an interim basis. Kinhega Oaks paid approximately $100,000 for this property and expended approximately $40,000 on improvements to the property.
The DCA filed its notice of violation against Killearn, Kinhega Landing, Kinhega Oaks, and Leon County in July 1990. The DCA took the position that the DO order imposed a ten-year buildout date and did not allow the use of septic tanks, even as an interim measure. The hearing officer (HO) found that the DO did not impose a ten-year buildout date. Killearn, in identifying 1985 as the project completion date in its ADA, was merely responding to form questions which were part of the draft operating manual for DRIs, which had been prepared by the Division of State Planning, DCA's predecessor agency. Leon County had imposed no requirement that the ADA be prepared according to the form and, accordingly, had not made a "conscious decision" to impose the 1985 buildout date. Moreover, there was no evidence that the remainder of the draft operating manual, which recommended the imposition of a buildout date, had been made available to Killearn or the County. There was therefore no "implication" that the County was carrying forward the policy of the Division of State Planning that a buildout date be imposed. Finally, the ADA and DO did not clearly inform Killearn of the imposition of the buildout date.
The HO also found that the DO unequivocally required the provision of a sewage treatment system so that units would be connected to that system contemporaneously with their development. The DO did not allow the alternative use of septic tanks on an interim basis. There was no requirement by terms of the DO or by law that the DO be recorded in the public records. The HO found Killearn was not required by the terms of the order to advise subsequent developers of parcels within the DRI area of the need to provide sewer service in accordance with the DO. The HO further found that the circumstances of the transfers of the parcels of land to Kinhega Landing and Kinhega Oaks were "troubling" but that it would be incorrect to impose an obligation on Killearn to provide sewer service to these developments. Finally, the HO found that DCA was estopped by the actions of Leon County, in approving the interim use of septic tanks by Kinhega Landing and Kinhega Oaks, from enforcing against these developers the sewer requirement. The HO alternatively found that Kinhega Landing and Kinhega Oaks were bona fide purchasers for value without notice of the sewer requirement.
The HO recommended entry of a final order requiring in pertinent part that Killearn record the DO and any amendments in the Public Records of Leon County, Florida, and provide written notice to all subsequent buyers of land within the DRI of the DO and the terms of the agreement between itself and the electric cooperative for the provision of sewer...
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