Full opinion text
ORDER ON DEFENDANT’S MOTIONS FOR SUMMARY JUDGMENT SHERRILL, United States Magistrate Judge. This case is before me for all further proceedings upon consent of the parties. Defendant, Leon County, moves for summary judgment for lack of standing accompanied by a memorandum. Docs. 308 and 309. Defendant also seeks summary judgment on the merits. Docs. 310 and 311. Plaintiffs’ responses are docs. 329 and 330, and doc. 338 is Defendant’s reply. Defendant’s depositions and affidavits are filed as doc. 313, County Commission meetings transcripts are filed as doc. 314, and corporate documents are filed as doe. 337. Plaintiffs affidavits in opposition are filed as doc. 331, and depositions and responses to interrogatories are filed as doc. 350. Numerous supplements have been filed. Docs. 318, 342, 345, 346, 385, and 386. Summary judgment is governed by Celotex Corporation v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986): In our view, the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial. In such a situation, there can be no ‘genuine issue as to any material fact,’ since a complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial. 477 U.S. at 322-23, 106 S.Ct. at 2552-53. As explained in Celotex, where the nonmoving party has the burden of proof on a dispositive issue, the moving party need not negate the claim. Rather, the burden on the moving party is to demonstrate an absence of evidence to support the nonmoving party’s case. 477 U.S. at 325, 106 S.Ct. at 2554. If this occurs, the party upon whom the burden of proof is imposed then must come forward with evidentiary material demonstrating a genuine issue of fact for trial. Reliance on the pleadings is inadequate. 477 U.S. at 324, 106 S.Ct. at 2553. The substantive law which underlies Plaintiffs’ claims identifies which facts are “material.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). In the case at bar, the remaining federal claims are Count II, the arbitrary and capricious substantive due process claim, Count III, the claim of taking without just compensation substantive due process, and Count IV, the equal protection claim. Count V, a pendent state claim for inverse condemnation, also remains unresolved. A “genuine issue” of material fact requires that there be such evidence that a reasonable jury could return a verdict for the party bearing the burden of proof. Anderson v. Liberty Lobby, Inc., 477 U.S. at 248, 106 S.Ct. at 2510. In answering the question whether a reasonable jury could return a verdict for the party bearing the burden of proof, the court must apply the burden of proof imposed by law as to each issue. Id., 477 U.S. at 252-255, 106 S.Ct. at 2512-13. Finally, the nonmoving party must show more than the existence of a “metaphysical doubt” regarding the material facts to show that a reasonable jury could rule in his favor. Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corporation, 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). A scintilla of evidence is insufficient. There must be such evidence presented by Plaintiffs that a jury could reasonably return a verdict for the party bearing the burden of proof. Anderson v. Liberty Lobby, 477 U.S. at 251, 106 S.Ct. at 2512. “[T]he evidence and inferences drawn from the evidence are viewed in the light most favorable to the nonmoving party, and all reasonable doubts are resolved in his favor.” WSB-TV v. Lee, 842 F.2d 1266, 1270 (11th Cir.1988). Implausible doubts are not resolved in favor of the non-moving party. Earley v. Champion International Corp., 907 F.2d 1077, 1080 (11th Cir.1990); Matsushita. “If the evidence is merely colorable, or is not significantly probative,- summary judgment may be granted.” Anderson v. Liberty Lobby, 477 U.S. at 249-50, 106 S.Ct. at 2511. I. Collateral estoppel: Pelham v. County of Leon, 643 So.2d 1112 (Fla. 1st DCA 1994) A. Plaintiffs’ claim of a due process property right created by state law equitable estoppel and Defendant’s motion for summary judgment on the merits, doc. 310 Leon County initially contended that Plaintiffs were collaterally estopped by a judgment in state litigation as to whether the County is equitably estopped under state law from enforcing the changed Estate Zoning (single family) enacted in 1989. Doc. 311, p. 75. Plaintiffs responded that collateral estoppel does not apply because the issue in the state litigation was different (vesting against the Comprehensive Plan compared to the issue here, vesting under the prior RM-3 (multi-family) zoning). Plaintiffs also argued that collateral estoppel should not apply because principles of public policy dictate that the constitutional issues, which could not have been resolved in the administrative pioeeeding, should be decided in this federal suit. Doc. 330, pp. 42-46. Thus, the parties briefed the issue of defensive use of collateral estoppel. After these memoranda of law were filed, the circuit court decision upon which Leon County had premised its collateral estoppel defense was reversed by the First District Court of Appeal. Pelham v. County of Leon, 643 So.2d 1112 (Fla. 1st DCA 1994). At oral argument, the parties reversed their respective positions on this question. The order on the motion to dismiss discussed at length the relevance of the state law question of equitable estoppel. The threshold issue with respect to the substantive due process claims of Counts II and III is whether Plaintiffs had a property interest recognized by state law in either completing their multi-family development as intended in 1972 or as-proposed and conditionally permitted in 1989. State law principles of equitable estoppel must be consulted to determine the existence of a state created property interest. 1. Legal principles governing collateral estoppel A federal court must accord the same preclusive effect to a state court judgement as would the courts of that state. 28 U.S.C. § 1738; Allen v. McCurry, 449 U.S. 90, 101 S.Ct. 411, 415-416, 66 L.Ed.2d 308 (1980); Migra v. Warren City School District, 465 U.S. 75, 81, 104 S.Ct. 892, 896, 79 L.Ed.2d 56 (1984). Accordingly, state law collateral estoppel principles must be examined to determine whether the judgment in the state case collaterally estops the Defendant in this case as to issues decided in that litigation. Webb v. Ethridge, 849 F.2d 546, 549 (11th Cir.1988). In Florida, “collateral estoppel requires ‘that the issue in the second action that is sought to be estopped from relitigation be identical to necessary and material issues resolved in the first suit.’ ” Florida Department of Transportation v. Gary, 513 So.2d 1338, 1340 (Fla. 1st DCA 1987), quoting Seaboard Coast. Line Railroad Company v. Cox, 338 So.2d 190 (Fla.1976) (emphasis by the court). Stated another way, “it is essential tp the application of collateral estoppel that the question common to both causes of action be actually adjudicated in the prior litigation.” Smith v. Perry, 635 So.2d 1019, 1021 (Fla. 1st DCA 1994). As noted in United Services Automobile Association v. Selz, 637 So.2d 320 (4th DCA 1993), “[i]t is a violation of due process to collaterally estop a party who has never had an opportunity to present evidence and arguments on his claim or her elaim.” 637 So.2d at 322. Thus, the court held that “any doubt as to whether a particular issue was actually litigated in the previous action or whether appellant has had its day in court must be resolved in favor of appellant____” 637 So.2d at 324. Carson v. Gibson, 638 So.2d 79 (Fla. 2d DCA), rev. denied, 645 So.2d 451 (1994) is one example of how Florida courts apply the “identity of issue” principle of collateral estoppel. In prior litigation, Gibson had sued Carson to enforce a charging lien upon a settlement of a lawsuit' in which Gibson had represented . Carson. In defense, Carson claimed that Gibson had provided inadequate representation. The trial court rejected that defense, finding no malpractice or unethical behavior. Carson then attempted to sue Gibson for malpractice. The second court found Carson to be collaterally estopped. The court found that the same issue, claimed inadequate representation, was necessary and material to both cases. 638 So.2d at 81. It held that collateral estoppel applied defensively to Carson’s malpractice claim even though “Carson has lost his right to a jury trial by litigating these issues in an earlier equitable proceeding.” Id. Another example is Bergman v. Serns, 560 So.2d 1201 (Fla. 3d DCA), rev. denied, 574 So.2d 143 (1990). In prior litigation, a court had held that Serns, son of the deceased, had exerted undue influence upon the deceased to obtain an inter vivos gift. The court had also found that the deceased had always intended to leave nothing to Serns by will. In the second suit, Bergman, daughter of the deceased, sought revocation of probate of a will executed by the deceased at the time of the inter vivos gift. The court in the second suit found in effect that the underlying issue of undue influence was the same as that previously determined adversely to Serns. Thus, collateral estoppel was available to Bergman to be used offensively against Serns. Munsey v. General Telephone Company of Florida, 538 So.2d 1328 (Fla. 2d DCA 1989) is another example. Munsey sued General Telephone in federal court alleging denial of promotions due to her sex. In the course of dismissing her claims with respect to the position to which Munsey claimed entitlement to promotion, the district court found that Munsey had not been performing work comparable to males in her section as to that position. Munsey also had a pending suit in state court claiming denial of equal pay. In the equal pay suit, the state court held that the underlying issue of work comparability was essential to the equal pay claim. Since that issue had been determined adversely in the federal suit, the court found that Munsey was collaterally estopped to relitigate that dispositive question. 2. The state court judgment here The appellate court’s judgment in Pelham v. County of Leon, 643 So.2d 1112 (Fla. 1st DCA 1994) sets forth the following description of the litigation before it. In 1990 Leon County adopted the Leon County Comprehensive Land Use Plan pursuant to § 163.3167, Fla.Stat. The court further found that “the County enacted Ordinance 90-31 to ensure that existing vested rights of Leon County property owners are not lost by operation of the plan’s proscriptions.” 643 So.2d at 1114. Ordinance 90-31 provided that for 120 days after July 16, 1990, a property owner could request a determination of whether he had vested rights to develop his land in a manner contrary to uses set forth in the plan. Id., n. 2. Thus, an application for a vested rights determination had to be filed within the 120 day period following July 16, 1990. The Ordinance provided that if the staff of the Tallahassee-Leon County Planning Department could not determine whether vested rights unequivocally existed, a hearing was to be conducted before a committee consisting of the county attorney, the director of planning, and the director of environmental management. “During this hearing, the applicant presents all of the evidence in support of the application.” Id. An applicant unsatisfied with the results of this administrative determination was entitled to a “hearing” before an administrative hearing officer. The court found that the hearing officer “may receive additional evidence, as well as oral and written testimony (including cross-examination)____” Judicial review in the circuit court was permitted by common-law certiorari. 643 So.2d at 1114, n. 2. Such review was limited by common law and Fla.R.App.Pro. 9.030(c)(3) “to determining (1) whether procedural due process was accorded, (2) whether the essential requirements of law were observed, and (3) whether the administrative findings and judgment were supported by competent and substantial evidence.” 643 So.2d at 1116. The state court found as a matter of state law that Florida’s common law of equitable estoppel was expressly incorporated into the Ordinance as the standard for determining whether a development right had vested with respect to the comprehensive plan. 643 So.2d at 1117. The court cited several “equitable estoppel” eases, many of which were relied upon by this court in the order on the motion to dismiss the fourth amended complaint. E.g., Hollywood Beach Hotel Co. v. City of Hollywood, 329 So.2d 10 (Fla.1976); Franklin County v. Leisure Properties, Ltd., 430 So.2d 475 (Fla. 1st DCA), pet. rev. denied, 440 So.2d 352 (Fla. 1983); Town of Largo v. Imperial Homes Corporation, 309 So.2d 571 (Fla. 2d DCA 1975); City of Lauderdale Lakes v. Corn, 427 So.2d 239 (Fla. 4th DCA 1983). The elements of such “equitable estoppel” as established in these cases are: (1) a property owner’s good faith reliance (2) on some act or omission of the government and (3) a substantial change in position or the incurring of excessive obligations and expenses so that it would be highly inequitable and unjust to destroy the right he acquired. In sum, the basic state law applied by the District Court of Appeal is relied upon by this court to determine whether Plaintiffs’ have a due process property right.- As it adjudicated the claim of equitable estoppel, the state appellate court relied upon the following findings of fact: During the county’s process of reviewing and approving the 1972 rezoning application, Pelham disclosed to the county the conceptual uses intended for the overall 165-aere tract. A model depicting the concept plan for development, including the instant property, was also displayed prior to the final rezoning approval. In addition, Pelham informed the county that the project would be developed over an unspecified number of years in several different phases. During the process of review, the impact of drainage from the Bent Tree development on Lake Jackson became an issue. Accordingly, a storm water management system was designed for all of the property and Pelham agreed to complete this system before any development commenced on the project if the county granted rezoning. 643 So.2d at 1115. The court further recited as fact that: Rezoning was ultimately approved in October 1972____ Following the purchase of the tract in 1972, the drainage' system was designed and built at a cost of $45,000, with a capacity larger than would have been necessary for the instant property alone. After this system was constructed, development of the project commenced. From 1975 to 1989, 128 acres of the original 165 acres were developed in approximately 14 segments, with the county consistently approving permits for the development of these segments. While certain changes to the original concept evolved over time, none were considered substantial enough to warrant denial of any permits. Id. On these facts, the state court held that ... it is sufficient to demonstrate, as Petitioners did here, that a substantial and not a de minimis portion of the overall expenditures facilitated and benefitted future phases of the planned project. 643 So.2d at 1119. The court also found that “[tjhe present case is one of full disclosure to the county on the part of Petitioners.” Id. It noted that This observation is not inconsistent with the hearing officer’s finding that in 1972 Pelham did not specifically indicate where the individual buildings would be located and how many .would be built. For purposes of this decision, it was sufficient that Pelham readily revealed to the Board of County Commissioners his general plans for development of the entire project over a period of years. Id., n. 7. The court then concluded: The fact that the county continuously issued permits for the unrestricted construction of the project over a period of 18 years with knowledge of expenditures for improvements to be made for the benefit of the undeveloped as well as developed land is legally sufficient to establish that it would be grossly unfair to allow the county to deny Pelham and Equity Resources a vested right at the eleventh hour of the development of Phase II. Id. Finally, the District Court of Appeal was aware of this pending federal suit. The court said that the issue it decided was “limited to a determination of Petitioners’ vested rights to the commercial zoning of the undeveloped 7.5 acre tract and to the Estate District zoning of the remaining undeveloped 30 acres.” 643 So.2d at 1114, n. 3. The court observed that the down-zoning from multi-family to Estate District was not involved in the case before it, but was pending in the case at bar. Id. The question before this court, therefore, is whether a Florida court would permit Plaintiffs to use the foregoing judgment as offensive collateral estoppel to establish their claim of equitable estoppel as it arises in this case. The pivotal question is whether the issue now before this court was an essential and critical issue that necessarily was determined in the course of the decision by the First District Court of Appeal. The examples discussed above, where Florida courts have found collateral estoppel to be appropriate, uniformly satisfy this test. Inadequacy of attorney representation is the same issue whether arising in defense of a charging lien upon a settlement or in a suit for legal malpractice. Carson v. Gibson. Undue influence over a parent is the same issue whether arising with respect to an inter vivos gift or a testamentary gift if both gift and will were executed at the same time. Bergman v. Serns. Comparability of a person’s actual work is the same issue whether arising in a suit alleging discriminatory refusal to promote to that position or denial of equal pay. Munsey v. General Telephone Company of Florida. But equitable estoppel for development for estate zoning is not the same issue as equitable estoppel for multi-family development. The interplay of the “acts or omissions” of the County, and the “good faith reliance” of the property owner, the two essentials for common law equitable estoppel, may be entirely different depending upon the intensity of the development proposed. Multi-family development is a much more intense use of the land than a single family residence on two acres. Since the interplay between act or omission and good faith reliance may change depending upon the intensity of the development proposed, the equities, which is the fundamental underlying issue, may change as well. As the District Court of Appeal said in Equity Resources, Inc., supra, “the theory of estoppel amounts to nothing more than an application of the rules of fair play.” 643 So.2d at 1119-1120. “If ... there is some doubt as to whether a litigant has had his day in court such doubt must be resolved in favor of the full consideration of the substantive issues of the litigation and against the rigid application of any principle that would defeat the ends of justice.” Smith v. Perry, 635 So.2d 1019, 1021 (Fla. 1st DCA 1994), quoting Seaboard Coast Line Railroad Co. v. Industrial Contracting Co., 260 So.2d 860, 864 (Fla. 4th DCA 1972). Here, the question of vested rights and good faith reliance for multi-family development was not on the table in the state courts. The state courts could not have known the equities between the parties so as to render fairness to both as to that issue. Since a state court would not permit Plaintiffs to rely on offensive collateral estoppel to preclude Defendants from their day in court as to this different issue, this court must do likewise. B. Collateral estoppel as to Plaintiffs’ standing, Defendant’s motion for summary judgment as to standing, docs. 308 and 309 Defendant contends that Plaintiffs do not have standing to assert a vested development rights claim based upon common law equitable estoppel because they were not owners of the property when the rezoning occurred in 1972. Doc. 309, p. 2. It is also argued that the numerous changes in title since 1972 severed the right to assert this claim since the acts or omissions of the governmental entity giving rise to common law equitable estoppel do not run with the land. Id., p. 2, 9. It is also argued that since the claim of entitlement to a property right in the conditional 1989 permit depends entirely upon equitable estoppel arising from the rezoning in 1972, this break in title divests the Plaintiffs of standing to make any claim as to the 1989 permit. Since the First District Court of Appeal’s decision was filed after the parties briefed this issue, Plaintiffs did not raise offensive collateral estoppel as to standing in opposition to Defendant’s motion for summary judgment. At oral argument the court invited argument as to this question. Plaintiffs asserted the defense to summary judgment and Defendant responded. As will be explained ahead, there are two distinct parcels of land at issue in this case, and these are identified in evidence as tracts 2 and 3. Defendant in this case has shown without genuine dispute that tract 2, which contains 9.15 acres, was owned by First Fidelity Corporation from August 5, 1974, until February 15, 1979, when Bent Tree, Ltd., received the property back in foreclosure. First Fidelity Corporation has no connection with Plaintiffs, and none of the Plaintiffs in this case had any ownership interest in tract 2 between August 5, 1974, and February 15, 1979. Another possible break in ownership of tract 2 concerns the period from 1980 to 1986. Plaintiff Pelham refers to tract 2 as the “first” tract in his affidavit. He states that Bent Tree transferred its interest in the parcel to Lake Jackson, Ltd., in 1980. Pelham further avers that at this time, he was a limited partner of Lake Jackson, Ltd., and John Stocks was general partner. Pelham also avers that he retained an option to purchase a‘40% interest in the property for $1.00. Defendant contends that Pelham’s affidavit is false, and contradicted by his deposition testimony. Cited for this argument is page 5 of Defendant’s memorandum on standing, doc. 309. Doc. 338, p. 4. The only reference to evidence as to this question in that document is in footnote 5. Footnote 5 references the July 19,1990, deposition of Pelham. In that deposition, Pelham was asked who were, the limited partners of Lake Jackson, Ltd., in 1986 when he acquired all of the partnership interest. He responded that he, among others, was then a limited partner. Later, Pelham explained that in 1980, when Lake Jackson, Ltd., was formed, he had a contract with Stocks, the general partner, “for a partnership interest in Lake Jackson, Ltd.” He explained: Well, I never really gave up my interest in Lake Jackson, Limited. My contract provided that I would be a 40 percent limited partner in the transaction. For whatever reason John asked the partnership be set up and titled all in his name, but I had an option agreement for $1 to receive 40 percent interest in that partnership and it to be conveyed to me at any time. Pelham said that he executed his option in 1986, and that is how he came back into direct ownership. Thus, the affidavit does not contradict the deposition testimony. It is apparent, however, that Pelham claims to have been a limited partner solely by virtue of his side agreement to purchase a 40% interest for a nominal amount. In summary, the facts as to Pelham’s ownership interest to tract 2 from 1980 to 1986 are not disputed, but the legal effect of this arrangement is disputed. Defendant has also shown without genuine dispute that tract 8, which contains 9.64 acres (less 1.49 acres used for The Lake Club Apartments), was owned by John Stocks from September 22,1980, until June 12,1986, and that none of the Plaintiffs had any ownership interest in tract 3 during this period. Id., p. 6. It has also been shown without genuine dispute that Villas of Lake Jackson, Ltd., was not formed until October 1, 1987. Id., p. 11. Pelham does not claim otherwise in his affidavits as to tract 3. In short, both tracts 2 and 3 were owned for a period of years by persons who are not Plaintiffs in this suit. There is no showing that during these periods of time, these persons were in privity with Plaintiffs. Were this court to write upon a clean slate, the legal effect of these significant breaks in ownership of both tracts 2 and 3 would be decisive in favor of Defendant as to their standing to make the claims found in counts II and III. But collateral estoppel precludes relitigation of standing at least as to three of the current Plaintiffs. Plaintiffs Pelham and Equity Resources, Inc., two of the Plaintiffs in the case at bar, were the only parties in the state case in opposition to Leon County. The District Court of Appeal held as to Pelham that “[a]s one who purchased the property under a contract contingent on rezoning after the county granted the rezoning conditioned on the construction of a drainage system, Pelham clearly established sufficient acts of reliance.” 643 So.2d at 1118. It further held that “Equity Resources is not an independent corporation, unrelated to Pelham, that obtained its interest in the land as a stranger to the project. On the contrary, it is an entity that was created and controlled by Pelham to hold the land and consummate the development initiated by Pelham.” Id. It also enumerated a number of independent acts by the County upon which Equity Resources had relied. Id. The court concluded that both Pelham and Equity Resources had standing under Florida law to claim that the County was equitably estopped as to estate zoning. Unlike the central equitable estoppel claim, the issue of standing to bring such a common law claim is identical to the standing question in the case at bar. As explained by the First District Court of Appeal in Equity Resources, Inc., quoting from Franklin County v. Leisure Properties, Ltd., 430 So.2d 475, 480 (Fla. 1st DCA), rev. denied, 440 So.2d 352 (Fla.1983), “a ‘successor in interest’ must show his own entitlement to the benefit of an estoppel and may not make such a showing by merely purchasing the property.” 643 So.2d at 1118. Thus, that court used the same state law standard which this court must apply. From a functional perspective the issue is also the same. It made no difference that the equitable estoppel claim only involved entitlement to vesting as to estate zoning rather than multi-family uses. The state court had to trace the same chain title for the same period of time as at issue in this case, and did so as to these two Plaintiffs. Finally, while it is unclear whether discovery would have been permitted before the hearing officer who held the evidentiary hearing, the essential factual elements of Defendant’s claim could have been gleaned by Leon County from public records, including land records at the county courthouse and corporate records filed with the Secretary of State. Pelham testified at the evidentiary hearing, and he could have been required during that proceeding to explain the ownership history and the corporate history as to each parcel and each Plaintiff. Thus, it cannot be said that Defendant was not afforded due process as to the litigation of the standing of these two Plaintiffs in the state suit. In summary, Defendant’s motion for summary judgment as to the lack of standing of Pelham and Equity Resources, Inc., will be denied. The County is collaterally estopped by the results of the state court case. The other two parties to this suit, Villas of Lake Jackson, Ltd., and Lake Jackson, Ltd., were not parties to the state litigation. Whether offensive collateral estoppel is available to these two parties is a question which raises difficult factual and legal issues under Florida law. In Zeidwig v. Ward, 548 So.2d 209 (Fla.1989), the Florida Supreme Court relaxed the mutuality of parties requirement for the defensive use of collateral estoppel against a plaintiff in a civil suit who had litigated and lost the identical issue in the criminal context. The court noted that in Parklane Hosiery Co. v. Shore, 439 U.S. 322, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979), the United States Supreme Court restrictively modified the mutuality requirement of the collateral estoppel doctrine in the offensive context. It found that collateral estoppel without mutuality could be used to the extent that the plaintiff could estop or bar his defendant opponent from raising or contesting an identical issue previously decided against that defendant. That Court held that offensive collateral estoppel could be invoked only if the plaintiff could not have been joined in the earlier ease with reasonable ease. 548 So.2d at 212, citing Parklane, 439 U.S. at 332-333, 99 S.Ct. at 652-653 (emphasis by the court). Zeidwig noted, however, that offensive use of collateral estoppel presents a different question, citing Trucking Employees of North Jersey Welfare Fund, Inc. v. Romano, 450 So.2d 843 (Fla.1984). In Romano, the Court considered and rejected a modification of the strict mutuality of parties requirement in the “offensive context.” The defendants in the Romano case had been found guilty of fraud in a criminal case, and plaintiffs sought to use that finding offensively to establish liability in the civil case. Romano declined to recede from the “well-established rule in Florida” that “collateral estoppel may be asserted only when the identical issue has been litigated between the same parties or their privies.” 450 So.2d at 844-845. Thus, while it may soon change, the rule in Florida remains that of the Romano case, that the offensive use of collateral estoppel requires that the parties or their privies be identical. See Stogniew v. McQueen, 638 So.2d 114 (Fla. 2d DCA 1994) (so holding, but certifying the question to the Florida Supreme Court); Asphalt Pavers, Inc. v. Department of Revenue, 584 So.2d 55, 58 n. 6 (Fla. 1st DCA 1991). Turning to the facts of this case, there is no dispute that Lake Jackson, Ltd., held title to tract 2 from September 30,1980, until January 1, 1987, when it deeded the property to Equity Resources, Ltd. As will be discussed ahead, there is no dispute that Pelham retained an option for $1 to purchase a 40% interest in Lake Jackson, Ltd., during this period. Thus, Lake Jackson, Ltd., was in privity with Pelham and has its own interests at stake as to tract 2. Pelham has been the owner of the controlling stock in Equity Resources, Inc., since 1972, and served as President both in 1972 and was President in 1990. Pelham has been the general partner of Lake Jackson, Ltd., since 1986. Lake Jackson, Ltd., first came to own tract 3 on January 3, 1988, taking title from Equity Resources. These undisputed facts sufficiently establish privity between Pelham, Equity Resources, and Lake Jackson, Ltd., as to tract 3. As a consequence of these findings, Lake Jackson, Ltd. is entitled to raise collateral estoppel as to standing in response to Defendant’s motion for summary judgment as to both tract 2 and 3. It was in privity with the parties in Pelham v. County of Leon, 643 So.2d 1112 (Fla. 1st DCA 1994). Relevant to collateral estoppel as to standing in favor of Lake Jackson, Ltd., the First District Court of Appeal found that Since the 1972 purchase of the project, Pelham has continuously held an ownership interest either directly in the land or in all of the partnerships or corporate entities that have held title to the _ various portions of the land, including the property under construction. ****** Equity Resources has held an ownership interest in all of the property involved in this case since 1987. Equity Resources acquired this interest from limited partnerships and other entities in which Pelham has held an interest and control.4 4 ... With regard to the limited partnerships that have been used to develop the land, including the property at issue in this proceeding, either Richard Pelham or Equity Resources, Inc., has always been the general partner with one exception. From 1981-1986, while Lake Jackson, Ltd., had title to a part of the property ■ at issue, Mr. Pelham was not the general partner of Lake Jackson, Ltd., but did retain a 40 percent interest in the partnership. ****** In regard to Pelham’s standing, the record confirms the hearing officer’s finding that Pelham “individually and/or through entities in which Mr. Pelham has held a substantial ownership interest, has retained ownership interests in the property at issue from October 1972 to the date of the final hearing in this proceeding.” 643 So.2d at 1115, 1117. These findings sweep with sufficient breadth to preclude relitigation in this court of standing as to Lake Jackson, Ltd. It has not genuinely been disputed that Villas of Lake Jackson, Ltd., has never held any ownership interest in tracts 2 or 3. Defendant has filed all of the record transactions showing that Villas of Lake Jackson, Ltd., is not in the chain of title as to either tract. Plaintiff Pelham avers that since 1986 there have been transfers of the property to “affiant’s affiliated companies,” and among those listed is Villas of Lake Jackson, Ltd., but he has presented no concrete evidence to support this generalized conclusion. In the face of official record evidence, Plaintiffs have not created a genuine dispute of material fact by this statement. Villas of Lake Jackson, Ltd., was formed on October 1, 1987, and Equity Resources, Inc., was both a general and a limited partner. The purpose of Villas of Lake Jackson, Ltd., was to acquire and develop real and personal property, but the initial contributions to the partnership are listed as cash. Equity Resources, Inc., came to own both tracts 2 and 3 by conveyances in 1987. There is no evidence, however, that Equity Resources, Inc., ever treated tracts 2 and 3 as assets of Villas of Lake Jackson, Ltd. It presumably held the land as a corporation, responsible to its stockholders. Its relationship to Villas of Lake Jackson, Ltd., as a general and limited partner, does not, without other evidence, give rise to any reasonable inference that Villas of Lake Jackson, Ltd., was in privity with Equity Resources, Inc., or Pelham, the two parties to the state litigation, with respect to development of tracts 2 and 3. Since Villas of Lake Jackson, Ltd. had no privity with the parties to the state litigation, it cannot use that judgment to raise collateral estoppel as to the question of its standing in the case at bar. As the First District Court of Appeal in Equity Resources, Inc. found, standing under Florida law to assert an equitable estoppel claim such as is a subsidiary issue in this ease requires a “legally cognizable interest,” and such an interest is shown by “ownership of the property.” 643 So.2d at 1117. Since Villas of Lake Jackson, Ltd., never owned the property, it lacks standing' to assert entitlement to equitable estoppel. Standing to bring this subsidiary state claim is crucial to counts II and III. Further, as to all counts this court lacks subject matter jurisdiction when it lacks a case or controversy as required by Article III of the Constitution. “In order to satisfy Art. Ill, the plaintiff must show that he personally has suffered some actual or threatened injury as a result of putatively illegal conduct of the defendant.” Gladstone, Realtors, et al. v. Village of Bellwood, 441 U.S. 91, 99, 99 S.Ct. 1601, 1607, 60 L.Ed.2d 66 (1979). Villas of Lake Jackson, Ltd., has failed to show that it has personally suffered injury as to any of the remaining counts. For these reasons, Defendant’s motion for summary judgment as to the standing of Villas of Lake Jackson, Ltd., will be granted and judgment entered in favor of Defendant as to this Plaintiff. In all other respects it will be denied. II. Whether Defendant is entitled to judgment as to Counts II and III upon Plaintiffs’ claim of a due process property right arising from state law equitable estoppel A. Undisputed facts The land which is the subject of this lawsuit is contained in what are identified in documents in this case as tracts 2 and 3 southward of the dike along the shore of Lake Jackson in Leon County, Florida. The total acreage at issue for development for multi-family buildings is 12.96 acres. Tract 3 was part of a 40 acre parcel purchased in 1972 by Richard Pelham and Carl Pennington from Mr. and Mrs. W.H. Faulk, III. Tract 2, the western portion of the land at issue, was also purchased from Mr. and Mrs. Faulk as a part of a 125 acre parcel. The property was under contract initially to be conveyed to Equity Resources, Inc., but Equity conveyed its interest to Bent Tree, Ltd., as developer, and Bent Tree took title. Plaintiff Pelham owned stock in that corporation and was president, and he controlled and owned Bent Tree. Thus, Pelham had an ownership interest in both tracts 2 and 3 at the time of the 1972 rezoning. The contracts with the Faulks were conditioned upon rezoning of the 165 acres of land to permit multi-family development. On August 1, 1972, the Faulks petitioned Leon County to have the property rezoned from Agricultural 2 to RM-3, a zoning classification that permitted multi-family dwellings. Thus, though the Faulks applied for the rezoning, Leon County was fully aware during the rezoning process that Pelham, through his affiliated business organizations in existence at that time, had an ownership interest in the property and intended to develop it. In conjunction with this rezoning request, the Director of the Leon County Health Department, B.E. Bennison, M.D., wrote to the Executive Director of the County Planning Commission on September 12, 1972. Dr. Bennison suggested “serious consideration” of the rezoning because it appeared that “portions of the development adjacent to the lake are located in an area within the historically defined high water mark of the lake.” He also said that “[s]ince the general topography of the area is such that significant amounts of runoff from this development will find their way into Lake Jackson, it can be anticipated that such runoff will further contribute to the existing deterioration of water quality in the lake.” Finally, Dr. Bennison wrote that since water in Lake Jackson “may find its way into the aquifers flowing in a southerly direction,” “the possibility of contaminating Tallahassee’s water supply needs additional careful study.” On September 14,1972, the Planning Commission met. After several citizens voiced concern that multi-family construction would pollute the lake, it deferred a vote until September 18, 1972. On September 18, 1972, Pelham wrote a letter to Dr. Bennison, with copies to the members of the Planning Commission: In the letter, as President of Equity Resources, Inc., Pelham said: »i! H* «k »f! In any event, we obviously do not intend to construct any improvements in any areas that might reasonably be expected to be subjected to flooding. All permanent improvements would be located substantially above the proposed hereinafter described holding ponds. Of obvious major concern to the public, as well as of great concern to your office and our company, is the runoff into Lake Jackson and the possible deterioration of water quality in the Lake____ These holding or siltation ponds would be of total area of 4 or 5 acres, and would have a berm at an elevation of approximately 100 feet.... We would not anticipate construction of any buildings at an elevation of less than 105 feet. We are asking for rezoning to a RM-3 zoning classification. This is the only medium or high density residential zoning classification which has no height restrictions. With an unlimited height restriction, we, of course, can achieve the desired number of residential units with a minimum of land usage thereby substantially increasing the undisturbed green areas located within this portin [sic] of the development. In other words, ..., we would build vertically. Pelham testified that the 105 foot elevation must be tied to a datum of sea level. All of tract 3 and almost all of tract 2 is below the 105 foot contour line; only 0.43 acres is above the 105 foot line, and the majority of the land is below the 96.5 foot contour line. The last high water mark for Lake Jackson is 96.53 feet. Pelham displayed a model of the proposed development before the Planning Commission. The model was also shown to the County Commission. The model depicts high-rise buildings on the land closest to the lake’s edge. Pelham testified that he made essentially the same presentation to the County Commission as to the Planning Commission. Further, he sent a letter to the County Commission (which will be discussed ahead) in which he stated that he was providing the Commissioners with a copy of the letter he sent to “the Health Department,” that is, to Dr. Bennison. Plaintiffs present no contrary evidence. Thus, there is no genuine dispute of fact that the September 18, 1972, letter was presented to the County Commission in September 1972. Dr. Bennison withdrew his reservations about the rezoning based upon the representations in Pelham’s letter. But on September 18, 1972, the Planning Commission recommended that the rezoning be denied. However, on October 17, 1972, the County granted the Faulks’ application, rezoning that property to RM-3. The minutes and the Ordinance are silent as to any exchange of promises as to the rezoning. Pelham states in his affidavit that the “Leon County Planning Commission and the Leon County Commission” assured him that if he purchased the property, he could develop the property “under a multi-family zoning classification.” Pelham states that Leon County “knew” at the time of rezoning that the planned development was for as many as 1,200 units on the two parcels, but the factual basis of that opinion is not stated. Pelham testified that he did not consider himself legally bound to construct the dike and holding pond after the property was rezoned. The dike was created on the property, however, in late 1972 or early 1973. Pelham states in his affidavit that Leon County knew that the storm water retention facilities were constructed to service Villas Phase I, Villas Phase II, the remaining multi-family development on the subject property, and the adjoining commercial property. Pelham also states in his affidavit that in 1989 the storm water facility had sufficient capacity to handle storm water runoff for Villas Phases I-IV. On January 23, 1973, after hearing from many citizens, Leon County adopted Sedimentation Ordinance number 73-10. On 20 occasions in the next seven years the Leon County Commission considered the issue of development in the Lake Jackson drainage basin and damage to the lake caused by storm water runoff. As to the development activities which occurred from 1972 forward, Plaintiff Pelham states in his first affidavit: 24. That following the two purchases from the Faulks, affiant began an overall plan of development which included multifamily housing to be constructed on the property. 25. That the plan of development called for four or more Phases of multi-family construction, with infrastructure being constructed during Phase I that would service the entire development, including Phases II, III, and IV, as well as the adjoining property that was zoned commercial. * * * * * * 34. That from 1972 to the present,' except during the 1981-1982 time frame (and only because of the promises made by the Leon County Commission), development of the property has been continuous with the property being developed in approximately fourteen (14) distinct phases. 35. That during the development of the property, improvements have been made and expenditures incurred in rebanee upon the right to develop the entire tract of subject property as multi-family housing. 36. That the storm water retention system was constructed to-service all aspects of the Villas development, including Phases I, II, II, and IV, as well as the adjoining commercial property. 37. That the roads were designed and the streets dedicated to service all aspects of the Villas development, including Phases I, II, II, and IV, as well as the adjoining commercial property. 38. That in 1988, the Leon County Commission approved the proposed sewer facilities on the property and specifically addressed whether the sewer should be approved for only Phase I of the development. After considerable debate, the Leon County Commission approved the extension of the sewer system to service Phase I and subsequent Phases; Thereafter, affiant installed the sewer system to service not only Phase I, but the other phases as well. 39. That in 1989, Leon County approved a franchise agreement between EQUITY RESOURCES, INC. and Talquin Electric Co. for Talquin Electric Co. to provide utility service to the property and specifically approved the franchise agreement to include not only development of Villas Phase I, but also Phases II, III, and IV as well as the adjoining commercial property. In his second affidavit Pelham states: 15. That building permits were applied for and approved by Leon County for each phase of development on the subject property from 1975 to 1989. 16. That at the time Leon County approved building permits for the phases of development on the subject property from 1975 to 1989, Leon County knew that the improvements to the property were being constructed as part of a general plan of development which included multi-family housing on the subject property. ^ 20. That at the time Leon County approved utility extension permits, sewer line extensions, septic tanks, water lines, and underground electric lines for the phases of development on the subject property from 1975 to 1989, Leon County knew that such improvements were being constructed as part of a general plan of development which included the construction of multifamily housing on the subject property. * * * * * * 22. That at the time the storm water retention facilities on the subject property were constructed [in 1972-1973], Leon County knew that such improvements were being constructed as part of a general plan of development which included the construction of multi-family housing on the subject property. * * * * * * 28. That the storm water retention facility had sufficient capacity to handle storm water runoff from Villas Phase II, Villas Phase III, and Villas Phase IV. On February 6, 1980, Robert N. Speidel, County Environmental Administrator, wrote to Russell J. Tagliareni, County Public Works Administrator. He said that a “proposed development” of Plaintiffs “shall be grandfathered from the provisions of 73-10, as amended, due to the actions of the Board of County Commissioners in 1972.” This statement, however, only concerned the single family units Plaintiffs constructed as Bent Tree III and IV, and related only to the compliance with the storm water requirements of Ordinance 73-10 with respect to the dike and holding pond. The permit that issued, therefore, which bore a similar “grandfathering” statement, was not directed to the development at issue before this court. During 1981 and 1982, Leon County engaged in negotiations to purchase the property which is the subject of this suit. Chairman of the Leon County Commission at that time, Jim Crews, states that he had several meetings with Plaintiffs or their agents on behalf of the Board. Crews states in his affidavit: Specifically, the affiant, acting as Chairman of the Board of County Commissioners of Leon County, Florida, promised Pelham and Stocks that in return for Pelham and Stocks not immediately applying for building permits, the Leon County Commission would not attempt to pass any new land use regulations to control development around Leon County lakes unless the regulations contained “grandfathering” provisions that would permit development of the Lake Jackson property in a manner consistent with their development plans. Crews further avers that Plaintiffs could have applied for building permits but refrained from doing so in reliance upon his promise. He states that he made promises to Pelham and Stocks “specifically to induce them to not go forward with the development of the propei’ty at that time,” knowing they were entitled to apply for building permits for multi-family construction at that time. Crews also states that on several occasions in 1981 and 1982, he told Pelham or Stocks that “Leon County would take no action to downzone or restrict the use of their Lake Jackson property and that the right to develop that property was vested.” Crews states: That during 1981 and 1982, affiant and the other members of the Leon County Commission, were all aware that Pelham and/or Stocks had expended considerable sums of money to develop the Lake Jackson property in a manner that would permit multifamily housing. Crews states that he “repeatedly told Pelham that his right to develop the Lake Jackson property was vested and that Leon County would take no action to hinder or delay the project.” Another County Commissioner at that time, Lee Vause, states in his affidavit that in 1981 and 1982 “the County” requested that the developers remove the property from the market to give the County a chance to acquire it, and “publicly committed that if the effort was unsuccessful in securing public ownership, the Affiant would not attempt to restrict the then existing multi-family development rights on the subject property of Mr. Pelham.” Vause further states that “[i]t is my recollection that the Commission as a body publicly shared my view.” Pelham states in his second affidavit that Commissioner Nelson was also authorized to speak for the County Commission, and that both Crews and Nelson had authority from Leon County to request that the landowner not proceed with development of the property until the negotiations for purchase of the land were completed. Pelham avers that Commissioner Nelson made the same promise as stated by Yause, and that his right to develop the land was vested. He states that Nelson told his agent that if the property were “taken off the market for approximately one year, the Leon County Commission would take no action to endanger development rights on the subject property.” Pelham states that in reliance upon these promises, he took the property “off the market” for more than a year and did not “proceed with development at that time.” The minutes from the meetings of the Board of County Commissioners which have been filed in this record indicate that on January 6, 1981, the Board considered a letter from John Stocks suggesting an exchange of government owned land for “his” Lake Jackson property. Stocks offered to hold all construction activities for multi-family dwellings in abeyance for 90 days for “tangible evidence of an exchange taking place.” The Assistant County Manager advised the Board that there was no County land available for a land swap, and the Board directed the County Administrator to obtain information from state officials as to whether the state might be interested in a land swap through various environmental land acquisition programs. The Board did not vote to determine that anyone had a “vested” right to develop the property with multi-family dwellings, and it did not vote to extend a promise to the owners of the land that if they ceased to develop it or to seek a buyer that they would be exempted from future regulations designed to protect Lake Jackson. Finally, the Board did not mention Pelham’s promise that no development would be undertaken below the 105 foot contour, and consequently no vote was taken by the Board to relieve Pelham of that promise. The issue of a land swap was discussed at meetings of the Board of County Commissioners on February 10, 1981, December 8, 1981, December 15, 1981, September 14, 1982, November 16, 1982, and December 7, 1982. But as with the first minutes discussed above, the Board did not vote to determine that anyone had a “vested” right to develop the property with multi-family dwellings, it did not vote to extend a promise to the owners of the land that if they ceased to develop it or to seek a buyer that they would be exempted from future regulations designed to protect Lake Jackson, and it did not mention Pelham’s promise that no development would be undertaken below the 105 foot contour line. Consequently, there is no evidence in this record that the Board voted to authorize any county commissioner to extend those promises to the owners of the property, or to relieve Pelham of the promise not to build below the 105 foot contour line. On December 7, 1982, the minutes reflect that the “Cabinet” (the Florida Governor and Cabinet) had approved the exchange, but that Stocks had set a deadline of December 31, 1982, for the exchange, and Commissioner Nelson did not think there was sufficient time to finalize the exchange. Stocks had written to a state official on October 18,1982, advising that he wished to “terminate this proposed exchange with the state.” Copies were sent to County officials and the letter appears as a record the next day in BCC Book 54, p. 351. The last entry in the Commission minute book is on January 18, 1983, noting that “there was a notice of sales of some property at Lake Jackson owned by Mr. John Stocks in the Tallahassee Democrat. No action was taken.” In October 1987, the County directed its staff to contact and coordinate research and actions between various agencies to prepare a plan for protection of Lake Jackson. The group which was formed to conduct this study and plan was called the Lake Jackson Technical Advisory Committee. In a workshop held on January 19, 1988, the Committee produced a report entitled “Lake Jackson Conservation Plan.” The report found that Lake Jackson is within an enclosed basin, sits upon a clay layer, and is largely dependent upon surface water runoff and rainfall to maintain water quantity and quality. It found that the lake “continues to present symptoms of declining water quality, the result of surface water runoff from a growing urban area along its southern shore.” It was the consensus of the task force that “immediate and decisive actions are imperative in order to reverse the current trends of decline of this precious and irreplaceable natural resource.” A number of recommendations for action were made, including adoption of a zoning district for low density residential use, down-zoning all unimproved property within the 96.5 foot contour line, and down-zoning all property between 96.5 and the 100 foot line to R-l. All residential uses were recommended to be allowed in the area from the 100 foot line to 120 feet. This report was submitted to the Leon County Commission. Also on January 19,1988, the Leon County Commission was advised that Villas of Lake Jackson, Ltd., had sued the County seeking damages and a court order to compel the Board to take action as to its development plans. The Board considered the recommendations from the workshop conducted earlier that day. The recommendations were not specific to the development proposed by Plaintiffs, but considered many aspects of drainage and development around all portions of the lake. Among the recommendations considered was to adopt a “new zoning district for low density residential use and evaluate downzoning for all unimproved property within environmentally sensitive areas, including areas below the 96.5 contour of the lake or within other areas appropriate for low density residential land use.” The County adopted Ordinance No. 88-6 on January 19, 1988. The Ordinance recited that the County had “caused a study to be made by various state and local regulatory and management agencies concerning the status of Lake Jackson and the impact of development within the watershed of the lake____” It found that Lake Jackson had been designated an “Outstanding Florida Water” and an “aquatic preserve,” and “is threatened by the degradation that can be expected to follow from continued development within the watershed basin of said lake, influenced mainly by the results of surface water runoff in the lake from the growing urban area which partly surrounds the lake.” The Ordinance found that “reduction of the density to which land is permitted to be developed has been shown to reduce the adverse impacts of further development upon the quality of water within water bodies.” It found that “an emergency exists with respect to the density to which land may be developed within the Lake Jackson basin,” and that “there should be a reduction in the rate and extent, of development permitted within this lake basin until better means are devised for protecting the water quality entering said lake, from runoff.” As a consequence of these findings, the Ordinance imposed a moratorium upon development orders for any structure except single family dwellings located below the 120 foot contour line. The Ordinance was limited to 21 days, expiring on February 9, 1988. The Commission met again on February 9, 1988. The Commission extended the moratorium upon development below the 120 foot contour line to August 9, 1988, to provide time to draft and adopt a comprehensive Ordinance governing development in thé watershed. Ordinance No. 88-10, which was then adopted, making the same findings as Ordinance No. 88-6. On February 23, 1988, the Board considered an application by Talquin Electric Cooperative, Inc., to expand sewer service to an area which included the land at issue in this case, the adjacent development called “Villas on the Lake,” and another area to the northwest. Plaintiff Pelham attended the meeting and urged that the application be adopted. George E. Lewis, a citizen, voiced opposition, argued that no development should be permitted below the 99 foot contour, and submitted to the Commission copies of the letters discussed above exchanged between the Leon County Health Department director and Pelham in 1972. It was noted that the master drainage plan for this expansion had already been approved, and the Commission approved the application. One of the dissenters, Commissioner Henderson, moved that the County sponsor an application for rezoning the remaining undeveloped portion of Villas on the Lake to R-l. Two of the Commissioners, Nelson and Vause, who voted to approve the application stated that they had previously made the commitment that there were “vested rights on this parcel” and said they would “not participate in downzoning the property.” • The temporary moratorium ended on August 30,1988, with adoption of Ordinance No. 88-53. Ordinance No. 88-53 found that Lake Jackson, as well as other of Leon County’s water drainage basins, is a closed system with maximum dependency upon surface water runoff and rainfall for water quality and quantity. It found that these drainage basins continue to evidence symptoms of declining water quality resulting from runoff from growing urban areas. The decline was evidenced by increasing aquatic weeds, algae, cultural eutrophication, turbidity, inorganic solids, and altered fish and wildlife populations. It found that immediate action was needed to reverse current trends of such decline. The Ordinance recited that a broad based, interagency management capability was needed. The Ordinance established a “special development-zone” adjacent to Lake Jackson. Zone A was the wetland and the transitional area to upland hardwood (the “ecotone”) around all of Lake Jackson, defined as the land between contours 88 and 100 feet. In that zone, 95% of the land was to be left undisturbed, and no struc