Opinion
No. 91-1401.
March 27, 1992.
Appeal from the Department of Community Affairs (DCA).
Egerton K. van den Berg, Christopher C. Skambis and David A. Baker of Foley Lardner, Orlando, for appellant.
G. Steven Pfeiffer, General Counsel and David L. Jordan, Asst. Gen. Counsel, Tallahassee, for appellee.
Appellant Ridgewood Properties, Inc. appeals the final order entered by the State of Florida Department of Community Affairs (DCA) which directs appellant to submit an application for development approval for the Maitland Center development. We reverse.
The uncontroverted factual evidence, as opposed to the contrary conclusionary legal opinion of the DCA's secretary, establishes that prior to July 1, 1973 appellant had vested rights under section 380.06(20) of the Florida Statutes (1989) to complete the Maitland Center development. Specifically, the record shows that prior to July 1, 1973 the City of Maitland granted zoning with development standards that permitted development of the Maitland Center property. A grant of zoning, coupled with a change of position of a purchasing developer who commences development permitted and authorized by the zoning, is sufficient to establish vested rights that cannot be limited or modified by a new and subsequent policy adopted pursuant to chapter 380 of the Florida Statutes. The record establishes that in all prior similar or comparable situations the DCA has taken a legal position consistent with appellant's position and contrary to the opinion of its secretary concerning the matter of vested rights under section 380.06(20).
Section 380.031(4), Florida Statutes (1989) defines the term "development permit" to include a rezoning "having the effect of permitting development". "Development" includes the carrying out of any building activity. § 380.04(1), Fla. Stat. (1989). Any change in the intensity of use of land involves "development". § 380.04(2)(b), Fla. Stat. (1989). Zoning regulates the intensity of use of land. A rezoning normally includes a change in the intensity of the use of land.
Because appellant established, without any factual contradiction, that prior to July 1, 1973 the City of Maitland gave the required "authorization to commence development" under section 380.06(20), we reverse the order of the Department of Community Affairs and remand with directions to dismiss the administrative proceedings against appellant.
REVERSED and REMANDED.
GOSHORN, C.J., COWART and DIAMANTIS, JJ., concur.