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Couple wage property rights battle

Facing old age and poor health, Fay and Audrey Handy muster their strength to continue a 20-year-old dispute.

By BRIDGET HALL GRUMET, Times Staff Writer
© St. Petersburg Times
published September 15, 2002


FLORAL CITY -- These 100-plus wooded acres at the edge of Citrus County, overlooking the now-swelling waters of the Withlacoochee River, were supposed to pay for Fay and Audrey Handy's retirement.

Except Mrs. Handy, 67, is still working.

The couple's plans to develop the site into a 15-home rural community or a mobile home park have unraveled over the past two decades as new development and zoning regulations have forced them to postpone their dreams.

Now the sprawling site -- home only to the Handys, a flock of wild turkeys and other wildlife -- has become a battleground where property owners' rights collide with growth management.

"There has not been one use we proposed that was profitable that (the county) would go along with," said Mrs. Handy, who works full time as an occupational therapy assistant. "They have denied us our right to use our talent, our abilities and our resources to provide for ourselves."

But county planners say the Handys' plans don't meet the standards for vested rights and wouldn't be allowed under the current zoning, which limits the site to 1 unit per 20 acres.

"He missed the deadlines, he never recorded his plat into the official records and he never made investments of a sufficient nature to qualify for vested rights," said Gary Maidhof, the county's director of development services.

In their battle with the county, the Handys have drawn a likely, yet unlikely, ally in Commissioner Jim Fowler:

Likely because Fowler is the commission's strongest supporter of private property rights, and the Handys live in his district.

Unlikely because Fowler, a commissioner who called county planners the experts in other development issues like Halls River Retreat, now finds himself challenging those planners' findings in this case.

"It's a very tragic case. They spent money, they made an investment in that property," Fowler said. "Now, since they did not meet a certain window for which they were not notified, they have lost their property rights.

"The process that was used in 1980 and 1986 was a flawed process," he added. "Everyone today recognizes that, but yet we're unwilling to ... give some consideration here to our shortcomings as a government agency. If we're going to err, we need to err on the side of constitutional rights for our citizens."

The missing letter

The Handys platted the property in 1980 with 5-acre residential lots and two commercial tracts along County Road 48. It was a time when development in Florida was largely unregulated and plats didn't have to be recorded at the courthouse.

So the Handys didn't record it.

When the 1986 zoning ordinance went into effect, the county sent out letters telling property owners to record their plats by a certain date or they would not be recognized.

But the Handys, who lived in West Palm Beach at the time, say they never got a letter.

They missed the recording deadline, and after the 1989 Comprehensive Plan went into effect, their land was reclassified to low-intensity coastal and lakes, which allows 1 unit per 20 acres.

"My question is, where is the ordinance in Citrus County laws that gives them the authority to send one letter, received or not, to take my rights away?" asked Mr. Handy, 67, a retired shale miner and developer. "A letter I've never received is costing us our retirement here."

"It just seems if you're taking someone's rights away, rights that have a monetary value, they should bear a greater burden to make sure the notification is received," Mrs. Handy added.

Maidhof didn't work for the county in the mid 1980s, but he said he wouldn't be surprised if the Handys never got the notification letter. Mass mailings were a time-consuming proposition in the days before the county had computers and copiers, and some letters might have never gone out, he said.

"It was a different county then," Maidhof said.

Considering the Handys owned such a large piece of land, however, County Attorney Robert Battista said the couple should have kept tabs on the changing development regulations that came out of new growth management laws.

"As a landowner you do have some responsibilities to keep yourself informed," Battista said. "You own land and you're an absentee landlord, and in this case, you have significant holdings. I would suggest you need to have someone locally who looks out for you."

Invested, but not vested

Instead, Mrs. Handy was busy looking after her husband, who has suffered a series of health problems over the past two decades, including a heart attack, a stroke and cancer of the larynx.

Although the couple started to develop the site in the early 1980s -- they cleared about 15 acres, paid for a well and brought a wastewater package plant to the site -- Mr. Handy's health problems kept stalling the 15-home project.

Those delays, and the lack of further investment, led county planners to conclude the Handys do not have vested rights to develop the site according to the 1980 plat.

"In order to be vested, you would have to establish you had a development order of some kind, expended money toward the completion of a project and continued in good faith," said Chuck Dixon, the county's community development director. "It's hard to establish that you've continued in good faith if nothing's happened in such a long time."

The county can't take Mr. Handy's health problems into consideration when determining vested rights, Maidhof added.

"To grant vested rights on this basis would be to disregard established legal standards of vested rights case law and in my opinion leave the county vulnerable to legal challenge from many venues," Maidhof wrote in a Dec. 13, 2001, memo.

Fowler believes an exception should be made for the Handys, however.

"There are some extenuating circumstances here, particularly in Mr. Handy's case because of his health problems," Fowler said. "He's had some very serious health problems and he was fighting for his life."

In an Aug. 23 letter, Fowler asked state Attorney General Bob Butterworth to review the Handys' case to see if the plat could be recorded now, "despite the fact that it would not comply with current regulations."

The Attorney General's Office replied last week that it cannot rule on matters involving local codes, such as the development regulations at stake here.

"Unfortunately, it seems to me the next step is they will have to avail themselves of the legal system," Fowler said. "It just seems to me a judge is going to have to settle this question. Hopefully it is one that is sympathetic to Mr. and Mrs. Handy's situation."

A long fight

A large "For Sale" sign is now posted at the driveway to the Handy property on CR 48. Some buyers have expressed interest, but they hesitate when they discover the site, appraised at nearly $500,000, is zoned for only 1 unit per 20 acres, Mrs. Handy said.

"Most of the people that are going to put up $500,000 want to do something more with it," she said. "They don't just want to build a house."

If the county accepted the 1980 plat, allowing 15 residential units and two pieces of commercial property along the road, the Handys say the appraised price would jump to more than $1.7-million.

"This is 20 acres of commercial property," Mr. Handy said, pointing to the tracts drawn on the plat. "We feel we honestly have done everything according to the way it is, and we should reap the benefits."

As an alternative, the Handys have asked the county about opening a mobile home/recreational vehicle park instead, but the zoning won't allow it. Given the environmentally sensitive nature of the riverfront land, Maidhof said, it is unlikely the county would rezone the property for such a project.

The Handys are loath to spend their savings on an attorney, but they're not ready to give up their battle against the county. Mr. Handy talks about bringing his case directly to the County Commission and asking it to accept the old, browning plat.

"Unless they want to give me that tomorrow, there's going to be a long fight," Mr. Handy said. "I'm not one to give up when I know I'm right."

-- Bridget Hall Grumet can be reached at 860-7303 or bhall@sptimes.com.

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