01-001119 Black Diamond Properties, Et Al vs. Citrus County, A Political Subdivision Of The State Of Florida, And The Brown Schools Of Florida, Inc.
 Status: Closed
Recommended Order on Wednesday, August 15, 2001.


View Dockets  
Summary: Decision by County to allow residential care facility on property zoned for a hospital constituted a departure from essential requirements of law.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8BLACK DIAMOND HOMEOWNERS )

12ASSOCIATION, INC., BLACK )

16DIAMOND PROPERTIES, INC., and )

21JERRY AND ANN KERL , )

26)

27Appellants , )

29)

30vs. ) Case No. 01-1119

35)

36CITRUS COUNTY and THE BROWN )

42SCHOOLS OF FLORIDA, INC. , )

47)

48Appellees . )

51________________________________)

52)

53MARVIN QUERY , )

56)

57Appellant , )

59)

60vs. ) Case No. 01-1120

65)

66CITRUS COUNTY and THE BROWN )

72SCHOOLS OF FLORIDA, INC. , )

77)

78Appellees . )

81________________________________)

82RECOMMENDED ORDER

84Pursuant to notice, these matters were heard on May 30,

942001, in Inverness, Florida, by Donald R. Alexander, an

103Administrative Law Judge of the Division of Administrative

111Hearings.

112APPEARANCES

113For Appellants : Clark A. Stillwell, Esquire

120(01-1119 ) Brannen, Stillwell & Perrin, P.A.

127Post Office Box 250

131Inverness, Florida 34451-0250

134For Appellant : Julie Hions O'Kane, Esquire

141(01-1120 ) Drage, deBeaubien, Knight, Simmons,

147Mantzaris & Neal, LLP

151Post Office Box 87

155Orlando, Florida 32802-0087

158For Appellee : James A. Neal, Jr., Esquire

166(Brown School) 452 Pleasant Grove Road

172Inverness, Florida 34452-5746

175David C. Ashburn, Esquire

179Greenberg Traurig , P.A.

182101 East College Avenue

186Tallahassee, Florida 32301-7703

189For Appellee : Carl E. Kern, Esquire

196(County) 3600 West Sovereign Path, Suite 267

203Lecanto, Florida 34461-7726

206STATEMENT OF THE ISSUE

210The issues are whether the following decisions of the

219Director of Development Services of Citrus County on May 9,

229July 21, and July 25, 2000, are correct: (1) that the Brown

241School of Florida, Inc.'s proposed use of certain property in

251Citrus County, Florida, did not constitute a change in use as

262described in Sections 2021 through 2023 of the Citrus County

272Land Development Code and is consistent with Rezoning

280Ordinance No. 86-A38; and (2) that the proposed construction

289of a fence on the property complied with the Citrus County

300Land Development Code.

303PRELIMINARY STATEMENT

305This matter began on May 9, 2000, when the Director of

316the Department of Development Services of Appellee , Citrus

324County, advised Appellee , the Brown Schools of Florida, Inc.,

333that its proposed use of certain property in Citrus County,

343Florida, as a "psychotherapeutic hospital" did not constitute

351a change of use as described in the Citrus County Land

362Development Code, and that it could commence operations at

371that location. After objections in the form of two appeals

381were lodged by Appellants, Black Diamond Homeowner's

388Association, Inc., Black Diamond Properties, Inc., and Jerry

396and Ann Kerl (Case No. 01-1119), and Marvin Query (Case No.

40701-1120), further documentation was requested from the school.

415On July 21, 2000, a letter by the Director of the Department

427of Development Services concluded that the "proposed

434operations by the Brown Schools of Florida are within the

444perameters of the binding zoning conditions of [Planned

452Development] Z-86-29" and that the application should be

460granted. On the same day, the school requested authority to

470construct a 10-foot high chain link fence on a portion of the

482property. By letter dated July 25, 2000, the Director of

492Department of Development Services concluded that the fence

500was a "minor modification of the Approved Development" and was

510in accordance with the Land Development Code. All three

519decisions have been appealed by Appellants.

525When the appointed local Hearing Officer assigned to hear

534these cases resigned to accept a position as County Attorney,

544the matters were referred by Citrus County to the Division of

555Administrative Hearings on March 21, 2001, pursuant to a

564contract between the two entities.

569After the two cases were consolidated, by Notice of

578Hearing dated April 3, 2001, a final hearing was scheduled on

589May 30, 2001, in Inverness, Florida. On May 25, 2001, the

600cases were transferred from Administrative Law Judge Don W.

609Davis to the undersigned.

613At the final hearing, and as required by Section 2500 of

624the Land Development Code, the parties presented oral argument

633in support of their respective positions. Thus, there was no

643testimony or cross-examination of witnesses. However, the

650documents submitted to the Director of the Department of

659Development Services, which consist of Exhibits 1-40, were

667made a part of this record. Finally, by agreement of the

678parties, the undersigned has accessed relevant portions of the

687Citrus County Land Development Code on the Internet at

696www.bocc.citrus.fl.us.

697There is no transcript of the hearing. The time for

707filing Proposed Findings of Fact and Conclusions of Law was

717extended to July 20, 2001. The same were timely filed by all

729parties except Citrus County and have been considered by the

739undersigned in the preparation of this Recommended Order.

747FINDINGS OF FACT

750Based upon all of the evidence, the following findings of

760fact are determined:

7631. The property which is the subject of this dispute is

774located at 2804 West Marc Knighton Court, one mile north of

785the intersection of County Roads 486 and 491, and just south

796of the community of Beverly Hills in Citrus County, Florida.

806Appellee, the Brown Schools of Florida, Inc. (the Brown

815Schools), has entered into a contract to lease the land from

826its owner for the purpose of operating a State-licensed

"835residential child-caring facility." Appellants, Black

840Diamond Homeowner's Association, Inc., Black Diamond

846Properties, Inc., Jerry and Ann Kerl, and Marvin Query, have

856objected to the proposed use on numerous grounds. As

865residents or owners of property adjacent to the subject

874property, Appellants have standing to bring these appeals.

8822. The property was originally zoned agriculture. In

8901986, Community Care Systems, Inc. (Community Care), which

898then had a contract to purchase the property from a principal

909of Black Diamond Properties, Inc., applied to Appellee, Citrus

918County (County), to rezone 30.9 acres from "A-1 General

927Agriculture" to a "Planned Development-Commercial" land use

934classification. The stated purpose of the application was to

943permit the construction and operation of a private psychiatric

952hospital for alcohol and drug rehabilitation. The application

960reflected that the owner's sole intended use of the property

970was as a 60,000 square feet psychiatric hospital licensed

980under Chapter 381, Florida Statutes, which would "provide

988comprehensive psychiatric treatment for people of all ages."

9963. Under the 1986 version of the County's Land

1005Development Code (Code), private hospitals were only

1012authorized in the commercial land use districts. There was no

1022separate "Institutional" land use district. Thus, the Code

1030dictated that the original facility could only be used as a

1041private psychiatric hospital in a commercial zone. Since an

1050application for straight commercial rezoning on the property

1058would have been inconsistent with the County's then existing

1067land use plan, the only way in which the property could be

1079used for a private psychiatric facility was if the property

1089was classified and zoned as "Planned Development-Commercial."

1096Although the Code was amended in 1990 to include new land use

1108districts, including a "Public/Semi-Public/Institutional"

1112district, hospitals are permitted only in a "General

1120Commercial distict, while "Institutional" uses that are not

1128hospitals are not allowed in a "General Commercial" District.

1137In any event, the 1986 ordinance and final development plan

1147were not amended by the changes to the Code in 1990.

11584. The Brown Schools points out that at the time the

1169rezoning application was filed, the 1986 Code contained a

1178Commercial, Residential, Institutional and Office ( CRIO) land

1186use district which allowed, among other things, the

1194construction of "public or private hospitals," if they met

1203certain conditions, and "[a ] dult congregate living facilities

1212and other group homes, supervised living facilities meeting

1220all county and State requirements." However, in its rezoning

1229application, Community Care did not seek an institutional use

1238nor request a CRIO use. Thus, the cited provision has no

1249application here, and there is no indication in the record

1259that it was even considered by the County in making the

1270decisions under appeal.

12735. When the rezoning application was filed, Community

1281Care held Certificate of Need No. 2870 issued in 1984, which

1292authorized construction of a facility with 51 short-term

1300psychiatric beds and 37 long-term substance abuse beds for the

1310treatment of adults, including geriatric patients.

13166. The minutes of the Citrus County Board of County

1326Commissioners (Board) meeting held on August 26, 1986, at

1335which the zoning modification was approved, reflect that

1343concerns were raised by abutting citizens of Beverly Hills,

1352who belonged to a group known as United Residents of Beverly

1363Hills ( URBH ), relative to the facility's future uses. To

1374achieve the necessary zoning approvals, Community Care

1381expressly reassured URBH members by letter dated July 7, 1986,

1391that it would not accept court commitments, "criminally

1399insane," or special problem cases such as "fire setters"; that

1409admissions would be voluntary or by short term civil

1418commitment papers; that patient referral would be by direct

1427request of the patient (self-referral), by physician or other

1436local health professional, by transfer from local general

1444hospitals, and by law enforcement if no charges are pending

1454against the patient; that the property would not be used to

1465house onsite felons or violent patients; and that the building

1475would be low profile and without bars, windows, fences, or

1485gates. Thus, it is clear from Community Care's own

1494acknowledgement that the facility was never intended to be

1503used to accept law enforcement referrals, court commitments,

1511or other non-voluntary commmitments, much less the violent or

1520criminally insane individuals.

15237. Having received the above representations from the

1531applicant, the Board incorporated both a URBH letter and the

1541Brown Schools' letter of July 6 as a part of Ordinance No. 86-

1554A38, which approved the zoning change application (Z-86-29)

1562subject to certain conditions. That Ordinance expressly

1569limited and conditioned the uses allowed on the property to

1579the uses approved in the Ordinance. The operative section at

1589issue regarding this appeal is Condition 2, which required

1598that:

15992. Approval be limited to a 60,000 square

1608foot (88 bed) psychiatric care facility in

1615accordance with state guidelines.

16198. Thereafter, a facility was constructed and Community

1627Care operated a psychiatric care hospital on the property

1636under various names until sometime in 1997, when Community

1645Care (then operating the facility under the name of Heritage

1655Hills Hospital of Beverly Hills) voluntarily ceased to provide

1664services and vacated the premises. By operation of law, the

1674Certificate of Need automatically expired when it was returned

1683to the Agency for Health Care Administration (AHCA) on

1692June 12, 1998.

16959. The property was sold in 1999 to BCK of Ocala, LLC.

1707That owner then entered into a lease of the property with the

1719Brown Schools on an undisclosed date in 1999 or early 2000.

173010. On March 23, 2000, the Brown Schools filed a "Pre-

1741Application Review" with the County's Community Development

1748Division and met with County staffers in an effort to gain

1759approval for their facility. A preapplication is filed

"1767before submittal of an application for development order,"

1775and once one is filed, under Section 2210 of the Code a

1787preapplication conference is then held with County staffers

1795to acquaint the applicant with substantive

1801and procedural requirements of this LDC,

1807provide for an exchange of information

1813regarding the applicable elements of the

1819Comprehensive Plan, the LDC, and other

1825development requirements, arrange such

1829technical and design assistance assistance

1834as will aid the applicant in interpretation

1841of requirements, and to otherwise identify

1847policies and regulations that create

1852opportunities or pose significant

1856constraints for the proposed development.

1861The same section provides that the purpose of the conference

1871is "not to grant any preliminary approval except to agree that

1882the proposed use of the property is appropriate according to

1892the Comprehensive Plan and to determine whether it is

1901reasonable to expect that the proposed development can be

1910accommodated on the site in full compliance with requirements

1919of this LDC ."

192311. The preapplication reflected that the project name

1931was "The Brown School Locked Adolescent Facility." Also, a

1940handwritten notation by a County staffer at the bottom of the

1951preapplication indicates that "no change of use/no

1958construction [is] contemplated," and that the applicant "must

1966meet conditions of Z-86-29 - copy given to applicant." An

1976Email prepared by a County staffer on March 14, 2000, or

1987shortly before the preapplication was filed, reflected that

1995the intended use of the property was a "[l ] ocked facility for

2008children and adolescents."

201112. On May 5, 2000, the Brown Schools notified the

2021County by letter that "[w ]e are aware of the original

2032conditions in which the facility was permitted and we will not

2043be changing its use."

204713. In response to that representation, by letter dated

2056May 9, 2000, the County's Director of the Department of

2066Development Services (Director), who reviews both

2072preapplications and development order applications, advised in

2079part as follows:

2082Pursuant to the preapplication meeting of

2088March 23, 2000, and your correspondence of

2095May 5, 2000, please accept this letter as

2103confirmation that the proposed change does

2109not constitute a Change of Use as described

2117in Sections 2021 through 2023. As noted in

2125your letter, the Brown Schools of Florida

2132are bound by the original planned

2138development approved conditions. Should at

2143a future date you desire to modify the

2151structure, grounds, operation, or any of

2157the conditions, a new review by Citrus

2164County will be needed and may warrant a

2172public hearing as provided in Section 2224

2179of the LDC.

2182In reaching those conclusions, it is assumed the Director

2191considered Section 2021 of the Code, which defines a "change

2201in use" as "any change of the purpose or activity for which a

2214piece of land or its buildings is designed, arranged, or

2224intended, or for which it is occupied or maintained."

223314. The letter also specifically refers to the Brown

2242Schools' plan to operate the property as a "psychotherapeutic

2251hospital for children," and it asked that the applicant

2260provide a copy of its "Florida DC&F permit/authorization . . .

2271for inclusion in [the County's] file as confirmation that

2280[the] operation is approved by the State as well." At that

2291point in time, however, no documentation had been submitted in

2301the process concerning the Brown Schools' operations and

2309programs to support the decision made by the County, although

2319such information had been submitted to the Department of

2328Children and Family Services ( DCF ), the state agency which

2339licenses adolescent facilities.

234215. In information submitted to DCF to obtain a license,

2352the Brown Schools expressly stated that they would be

2361accepting sexual offenders, in addition to juveniles charged

2369with felonies. In fact, one of the criteria under the client

2380profile for those admitted to the Brown Schools' sexual

2389offenders program is that the individual "[m ] ay have completed

2400more intensive levels of acute care, hospitalizations, had

2408multiple failed residential placements or may have failed at

2417outpatient services."

241916. The documents submitted to DCF also reflect that the

2429Brown Schools is not operating a "psychiatric hospital," as

2438originally represented to the County, but rather it is

2447operating something more akin to a juvenile detention center.

2456Indeed, one of its stated missions is to "[e ] nhance the public

2469safety by providing protection for the community from

2477juveniles charged with felonies." A part of the facility will

2487be dedicated to providing services under a contract with the

2497State of Florida for competency restoration. Such a

2505prerequisite is necessary for admission to the Brown Schools'

2514competency restoration program. Under this program, clients

2521or their parents do not decide when they can leave, and the

2533clients are only discharged when they are determined to be

2543competent to stand trial, or when it is determined that they

2554will never gain such competency. This lack of freedom

2563illustrates that the intended use of the facility is as a

2574detention facility, and not as a private psychiatric hospital.

2583Obviously, the Brown Schools is not licensed, nor does it meet

2594the statutory requirements for operation, as a psychiatric

2602hospital.

260317. On June 5 and 6, 2000, Appellants in Case Nos.

261401-1119 and 01-1120 filed separate, but similar, appeals of

2623the May 9 letter under Section 2500 of the County Land

2634Development Code (Code) and asked for "an interpretation of

2643the intended, described Brown School use." On June 9, 2000,

2653the Director requested an opinion from the County Attorney on

2663whether his May 9 letter constituted action which triggered

2672the provisions of Section 2500. In a memorandum dated

2681July 17, 2000, the County Attorney concluded that it did not

2692for the following reasons:

2696It is my opinion that since no application

2704has been filed nor development order issued

2711or a request for determination made that

2718your letter of May 9th is non- appealable by

2727the terms of the Land Development Code.

2734Section 2210 entitled Preapplication is

2739merely a conference held before submittal

2745of an application for a development order.

2752* * *

2755It is not an action taken by the Director

2764which could lead to an appeal pursuant to

2772Section 2500.

2774Based on this advice, the Director took the position that he

2785had not made a final determination on the Brown Schools'

2795compliance with the zoning conditions and therefore refused to

2804accept the appeals. Thus he did not forward the two appeals

2815of the May 9 letter to a local hearing officer to begin the

2828appeals process.

283018. By letter dated June 7, 2000, and in direct response

2841to the concerns raised by Appellants, the Director provided

2850the Brown Schools with a copy of the Appellants' appeals and

2861requested that Appellee provide him with a copy of the DCF

2872license, contracts, and any other supporting documents. Also,

2880for the first time, the Director specifically requested

2888documentation on the planned operation and programs at the

2897facility since Appellants had questioned whether "the facility

2905will be in compliance with the original zone change compliance

2915conditions."

291619. In response to the Director's letter, on June 9,

29262000, the Brown Schools provided the Director with a copy of

2937its DCF license, contract with the State of Florida, and

2947revised program information. The program information was

2954revised (from that described in the application) after the

2963appeals were taken to reflect a change in program titles and

2974other terminology from that originally used. For example, the

"2983Sexual Offender Program" was changed to "Sexual Abuse

2991Treatment (SAT) Program," but the substance of the program

3000remains the same.

300320. In order to receive a license to operate its

3013institution from the DCF, the Brown Schools was required to

3023demonstrate that it had received final zoning approval. Even

3032though the Director represented in his June 7, 2000, letter

3042that final zoning approval had not been made, the Brown

3052Schools represented to the DCF that it had received final

3062zoning approval by submitting the May 9 letter. In reliance

3072on that letter, on May 30, 2000, the DCF issued the Brown

3084Schools a license to operate a residential child-caring

3092facility. The license was issued under Section 409.175,

3100Florida Statutes (1999), which specifically provided that

"3107child-caring facilities do not include hospitals."

311321. Beginning on July 1, 2000, the Brown Schools began

3123placing juvenile offenders at their facility, and these

3131residents have remained there during the pendency of these

3140appeals.

314122. On July 21, 2000, the Director issued a 3-page

3151letter which constituted his final determination on the

3159matter. That letter is found in three exhibits, including

3168Exhibit 18. The Director concluded that the Brown Schools'

3177proposed use of the property was consistent with the

3186applicable zoning conditions. In his letter, the Director

3194focused on Condition 2 of the zoning ordinance, and whether

3204the intended use was in conformity with the requirement that

3214the property be used only for a "60,000 square foot (88-bed)

3226psychiatric care facility in accordance with State

3233guidelines." Of relevance here were the following

3240conclusions:

3241[Condition 2] specifically utilizes the

3246term "facility" and not hospital, and the

3253term "State guidelines" rather than

3258specific Florida statutes, administrative

3262codes, or state programs. This is a

3269significant distinction and a core basis of

3276this determination. The County cannot

3281administratively expand, contract, or

3285modify the language or intent of the

3292condition when it uses plain and obvious

3299terms. ( Rinker Mat. Corp. vs. City of

3307N. Miami). The Board's limitations to the

3314zone change were those spelled out in the

3322adopted conditions - not those discussed

3328either within or outside the public hearing

3335process by the applicant at that time.

3342The second core issue is whether the

3349proposed Brown operation can be considered

3355a psychiatric care facility. The original

3361developer, Community Care Systems, Inc.,

3366provided comprehensive psychiatric

3369treatment for people of all ages with acute

3377emotional, behavioral, and chemical

3381dependency problems. The facility operated

3386as a hospital and so was governed by the

3395then Florida Department of Health and

3401Rehabilitative Services as a hospital,

3406subject to the provisions of the Health

3413Facility and Services Development Act.

3418These regulations served as the state

3424guidelines referenced in Condition 2.

3429The Brown Schools of Florida proposed

3435operation for the Marc Knighton Court

3441facility is a residential child caring

3447facility as licensed by the Florida

3453Department of Children and Families.

3458Florida Statute (Chapter 409) provides the

3464definition of a residential child caring

3470agency (facility implied within the

3475definition) that is broad in scope

3481recognizing a number of types, including

3487maternity homes, group homes, emergency

3492shelters, and wilderness camps. Therefore,

3497unlike the DHRS license obtained by

3503Community Care Systems, Inc., which clearly

3509established compliance with Condition #2,

3514obtaining of the DCF license does not in

3522and of itself serve the same role.

3529To ascertain compliance with the

3534psychiatric care definer of Condition #2, I

3541must look to the Brown Schools' proposed

3548program and the draft contract with the

3555DCF. The program summary from the Brown

3562Schools of Florida lists four program

3568types : Sexual Abuse Treatment Program,

3574Child and Adolescent Residential Treatment

3579[P] rogram (male and female], and

3585Residential Treatment Program for

3589Developmentally Delayed Youth.

3592They all share the use of an inter-

3600disciplinary treatment team centered around

3605the psychiatric evaluation, treatment and

3610community integration of the client(s).

3615This is similar in scope to some of the

3624original hospital's programs, though in the

3630Brown Schools case it is oriented to

3637children referred/placed by the State as

3643opposed to private placement.

3647The draft contract, specifically Attachment

36521, Section A, 2d, reaffirms these programs

3659and the desired goals. While there is a

3667difference from the original Community Care

3673Systems operation, the fact remains that

3679the supporting documentation provided by

3684the Brown Schools of Florida clearly

3690establishes that psychiatric care is a

3696principle (sic) component of their

3701operation and, as such, must be taken as

3709face value compliance with Condition #2 of

3716the Zone Change.

3719Much has been made of the fact that the

3728Brown School operation will treat youth who

3735have been found incompetent to proceed.

3741This is an issue outside the purview of

3749land use and, in fact, the attorney

3756representing the original applicant in 1986

3762made the same observation that these types

3769of issues were not land use related.

3776The determination of incompetency lies

3781solely within the State of Florida through

3788its judicial officers or their designees.

3794It is neither feasible nor appropriate for

3801local government through its police powers

3807to try to regulate these matters.

3813Secondly, much has been made of the

3820potential for the Brown Schools program to

3827evolve into a juvenile detention facility,

3833whole or in part due to the generality of

3842the DCF license. Whether this can occur is

3850open to debate, but Florida case law on

3858this matter is clear. Conetta vs. City of

3866Sarasota has established that one cannot

3872presume violations of the Code for the

3879purpose of denial. Rather, the appropriate

3885approach on this issue is to take

3892corrective enforcement action after a

3897documented violation occurs.

3900Timely appeals of this letter were filed by Appellants.

390923. By letter dated July 21, 2000, the Brown Schools

3919requested a "minor modification to [the] Land Development

3927Code" for the installation of a 10-foot high chain link fence

3938with two-foot overhead fencing at a 45-degree angle. Although

3947suggested otherwise by Appellants, the fence was not a

3956perimeter fence around the entire facility, but only a fence

3966to enclose a play yard, since a perimeter fence between at

3977least part of the facility and the adjacent property had

3987already been constructed by one of the Appellants.

399524. On July 25, 2000, a County staffer responded to this

4006request by holding that the fence "shall be considered a minor

4017modification of the approved Plan Development No. Z-86-29 in

4026accordance with the provisions of Section 2224.B of the Citrus

4036County Land Development Code." The cited Section of the Code

4046allows the Director to approve "minor changes in the . . .

4058previously approved Planned Developments (PD) as long as they

4067are in harmony with the originally approved . . . PD." After

4079a site plan was submitted, the County issued a permit for the

4091fence. This decision has also been appealed by Appellants on

4101the grounds that the original site plan contained no fences,

4111and the Board approved the zoning change in 1986 only after

4122the applicant represented that no fences would be erected.

4131The construction of the fence has been stayed during the

4141pendency of these appeals.

4145CONCLUSIONS OF LAW

414825. The Division of Administrative Hearings has

4155jurisdiction over the subject matter and the parties hereto

4164pursuant to Section 2500 of the Code.

417126. Subsection 2500G. of the Code provides the following

4180guidelines for an administrative law judge (or local hearing

4189officer) in an appeal of a decision by the County's Director

4200of the Department of Development Services:

4206When a decision is appealed the Hearing

4213Officer assigned to hear the appeal shall

4220conduct the hearing in compliance with the

4227following procedures as supplemented where

4232necessary:

42331. The Hearing Officer's review shall be

4240limited to the record and applicable law.

42472. The Hearing Officer shall have the

4254authority to review questions of law only,

4261including interpretations of this LDC and

4267any constitution, ordinance, statute, law,

4272or the rule or regulation of binding legal

4280force. For this purpose, an allegation

4286that a particular application before the

4292decisionmaker is not supported by competent

4298substantial evidence in the record as a

4305whole is deemed to be a question of law.

4314The Hearing Officer may not reweigh the

4321evidence but must decide only whether any

4328reasonable construction of the evidence

4333supports the decision under review.

433827. Subsection 2500H. of the Code provides the following

4347guidelines for the disposition of an appeal:

43541. The Hearing Officer must affirm each

4361contested decision or find it to be in

4369error. The Hearing Officer shall prepare a

4376written opinion stating the legal basis for

4383each ruling.

43852. When the Hearing Officer affirms a

4392contested decision pertaining to a final

4398action of a decisionmaker, that action

4404shall be deemed to be the final action of

4413the decisionmaker and shall be subjected to

4420no further review under this LDC. The

4427Hearing Officer shall submit the opinion to

4434the decisionmaker, the parties, and the

4440department involved.

44423. When the Hearing Officer finds any

4449decision to be in error, that decision

4456shall be referred back to the decision-

4463maker, the parties, and the department

4469involved.

447028. Under these circumstances, and notwithstanding any

4477ambiguity in the Code, a Recommended Order is an appropriate

4487disposition of these cases, particularly since the Director

4495must "reconsider" his earlier decision whenever, as here, the

4504reviewing tribunal finds the lower decision "to be in error."

4514See Florida Rock Industries v. Citrus County , DOAH Case No.

452499-0147 (Citrus County, July 14, 1999)(because any decision is

4533referred back to the Citrus County Department of Development

4542Services for entry of a final order, a recommended order is

4553appropriate).

455429. Within the foregoing perameters, several broad

4561principles apply here. First, the legal issue herein involves

4570one of construction of an ordinance which is not ambiguous.

4580Under these circumstances, legal issues of statutory

4587construction are reviewable de novo and no deference is given

4597to the local government's interpretation. Dixon et al. v. The

4607City of Jacksonville et al. , 774 So. 2d 763, 765 (Fla. 1st DCA

46202000). In addition, the parties agree that because the

4629decision under review is quasi-judicial in nature, in order to

4639be sustained, the decision must be in accord with the

4649essential requirements of the law, the decision must be

4658supported by competent substantial evidence, and the local

4666government must adhere to the requirements of procedural due

4675process. See , e.g. , Educational Development Center v. City of

4684West Palm Bch. , 541 So. 2d 106, 108 (Fla. 1989). Whether the

4696County has observed the essential requirements of the law

4705turns on whether the Director applied the correct law in the

4716instant case. Haines City Community Development v. Heggs , 658

4725So. 2d 523, 530 (Fla. 1995)(concluding that "applied the right

4735law" is synonymous with "observing the essential requirements

4743of the law").

474730. Appellants first contend that the Director departed

4755from the essential requirements of the law and failed to

4765adhere to the requirements of due process by failing to

4775forward their appeals of the May 9 decision to a local hearing

4787officer. Had they been forwarded, absent "imminent peril to

4796life or property," a stay of the proceedings would have

4806occurred, and the Brown Schools could not have commenced

4815operations unless and until a favorable decision was reached

4824in those appeals.

482731. The Director's decision to not forward the two

4836appeals to a hearing officer was based on a memorandum dated

4847July 17, 2000, prepared by the then County Attorney. The

4857memorandum basically concluded that the filing of a

4865preapplication by the Brown Schools did not constitute the

4874filing of an application or the issuance of a development

4884order within the meaning of the Code so as to trigger the

4896provisions of Section 2500. Rather, he concluded that the

4905filing simply entitled the applicant to a conference between

4914the County and the applicant for the purposes described in

4924Section 2210 of the Code.

492932. Section 2500 authorizes "decisions of the Director"

4937to be appealed subject to certain requirements described in

4946Subsections 2500A .-D. While it is true that no application

4956was ever filed and no development order issued, the May 9

4967decision did provide "confirmation [to the Brown Schools] that

4976the proposed change does not constitute a Change in Use as

4987described in Sections 2021 through 2023," an interpretation

4995vigorously disputed by Appellants. The practical effect of

5003the letter was to advise the Brown Schools that no application

5014for development was required since no change in use had

5024occurred. It also had the effect of permitting the

"5033development" of land (as defined in Subsection 1500F. of the

5043Code) that was arguably inconsistent with the Comprehensive

5051Plan, the Code, and the zoning on the property. Under these

5062circumstances, Appellants were entitled to have the

5069correctness of the "decision" resolved by an impartial hearing

5078officer, as contemplated by the Code, before the intended use

5088began. By failing to follow the requirements of the Code, the

5099Director departed from the essential requirements of the law,

5108and he failed to adhere to the requirements of due process.

511933. Appellants next contend that the Director departed

5127from the essential requirements of the law in four respects.

5137First, they assert that he erred by permitting the Brown

5147Schools to use the property as a juvenile detention center in

5158contravention of the terms of Condition 2 of Ordinance No. 86-

5169A38. They also contend that, since the intended use of the

5180property is different from that originally approved, the

5188County failed to require compliance with the major

5196modification provisions found in Section 2224(B) of the Code.

5205Appellants further argue that the Brown Schools' use of the

5215property represents a change in use under Section 2020 of the

5226Code, and that the decision of the Director to sustain that

5237use is a departure from the essential requirements of the law.

5248Finally, Appellants contend that the decision of the Director

5257permits development on the property, but does not require that

5267the Brown Schools obtain a development order, as contemplated

5276by the Code. For the reasons expressed below, these

5285contentions, which are all interrelated, are found to have

5294merit.

529534. As a "core basis" for his July 21 decision, the

5306Director relied upon the fact that because the Board used the

5317term "facility" rather than "hospital" in the zoning

5325ordinance, the Board did not intend to limit the use of the

5337property to only psychiatric hospitals, but rather it intended

5346to allow any "facility" with a psychiatric component. The use

5356of the term "facility" rather than "hospital" in Condition 2,

5366however, was both logical and consistent with the statutory

5375scheme then governing hospitals. When Community Care received

5383its Certificate of Need in 1984, hospitals were governed by

5393the Health Facilities and Health Services Planning Act (Act),

5402then codified in Chapter 381, Florida Statutes (1983).

5410Consistent with the title of the Act, a hospital was defined

5421as a "health care facility." See Section 381.493(3)(g),

5429Florida Statutes (1983), which defined a "health care

5437facility" as including "a hospital, skilled nursing facility,

5445intermediate care facility, ambulatory surgical center, or

5452freestanding hemodialysis center." By using the term

"5459facility" in Condition 2, it must be assumed that even under

5470the most liberal interpretation of the term, the Board

5479intended to permit only those institutions which were then

5488defined as a "facility" in Section 381.493(3)(g) to use the

5498property, and to exclude all other uses, including a child-

5508caring facility, or anything similar to the facility now being

5518operated by the Brown Schools.

552335. In addition, the use of the term "state guidelines"

5533in Condition 2 rather than a specific statutory provision or

5543administrative rule is not surprising, particularly since

5550state laws or rules are frequently renumbered, repealed, or

5559modified from time to time, and a specific statutory or rule

5570reference could quickly become outdated. By way of

5578illustration, hospitals are now licensed under Chapter 395,

5586Florida Statutes (2000), rather than Chapter 381, Florida

5594Statutes, and any reference to the latter statute in Condition

56042 would have resulted in both confusing and outdated language.

561436. The decision of July 21 also assumed that the Brown

5625Schools' operation "can be considered a psychiatric care

5633facility," based on the information contained in the draft

5642contract with DCF and the program summary submitted to the

5652Director. While admittedly there is a psychiatric component

5660to the program, the whole context of the program compels a

5671conclusion that the Brown Schools intends to operate an

5680involuntary juvenile detention facility cloaked under the

5687guise of solely providing psychiatric services to children.

569537. Further evidence that the Board intended to severely

5704limit the uses allowed on the property is found in the minutes

5716and record of its meeting on July 26, 1986. Before it adopted

5728Ordinance No. 86-A38, the Board accepted representations from

5736the applicant that admissions to the hospital would be

5745voluntary or by short term civil commitment papers; that there

5755would be no court commitments, criminally insane, or special

5764problem cases; that there would be no violent or dangerous

5774type patients treated at the facility; that patient referral

5783would be self-voluntary, by physician, or other local health

5792professional, or by transfer from local general hospitals, and

5801by law enforcement if no charges were pending. By accepting

5811such representations from the applicant, and making them a

5820part of the Ordinance, it is evident that the Board intended

5831to avoid such uses as the detention of violent juveniles, and

5842that it never intended to allow the facilities on the property

5853to be used to accept law enforcement referrals, court

5862commitments, or other non-voluntary commitments.

586738. It is clear, then, that the purpose of the rezoning

5878was to permit the construction and operation of a private

5888psychiatric hospital, and that the Board intended to severely

5897limit the uses allowed on the property as a result of the

5909concerns voiced at the Board meeting where the zoning

5918ordinance was adopted. Accordingly, the only reasonable

5925construction of the evidence is that the applicable zoning

5934ordinance prohibits the use of the property as a juvenile

5944detention center. By construing the Ordinance and Condition

5952in a different manner, the Director departed from the

5961essential requirements of the law.

596639. At the same time, the Brown Schools' intended use of

5977the property is for operations that are new and different from

5988uses approved in the approved planned development, and that

5997the new use constitutes development. "Development" is defined

6005in relevant part in Subsection 1500F. of the Code as "the

6016making of any material change in the use or appearance of any

6028structure or land." A "change in use" is defined in Section

60392021 as "any change of the purpose or activity for which a

6051piece of land or its buildings is designed, arranged or

6061intended, or for which it is occupied or maintained."

6070Therefore, any change of the purpose or activity is deemed a

6081change in the use of land and such a change constitutes

6092development. If a change in use is determined to be

6102inconsistent with the existing zoning classification, as it is

6111here, then the change must be approved through the

"6120development order" process under the Code.

612640. The current and proposed use of the property by the

6137Brown Schools is "development" and presents an example of a

"6147change in use." As noted above, the permitted use of the

6158property according to Condition 2 is limited to a 60,000

6169square foot (88 bed) psychiatric care facility in accordance

6178with State guidelines. Because the Brown Schools are

6186essentially operating a juvenile detention center on the

6194property, which constitutes a major modification of the

6202previously approved plan of development, the Director departed

6210from the essential requirements of the law by not requiring

6220the applicant to seek approval for the change through the

"6230development order" process in the Code.

623641. In summary, by permitting the Brown Schools to

6245operate in violation of the applicable controlling zoning

6253ordinance terms, and allowing a new change in use and

6263development on the property without requiring the applicant to

6272follow the development order process, the Director did not

6281apply the correct law, and he departed from the essential

6291requirements of the law. No reasonable construction of the

6300evidence supports a contrary conclusion. Therefore, the

6307July 21 decision should be reconsidered.

631342. In addition to the foregoing reasons, the record

6322also shows that the May 9 decision is not supported by

6333competent substantial evidence. For an action to be sustained

6342under the competent substantial evidence standard of review,

"6350it must be reasonably based [on] the evidence presented."

6359Town of Indialantic v. Nance , 400 So. 2d 37, 40 (Fla. 5th DCA

63721981), approved , 419 So. 2d 1041 (Fla. 1982). In the case at

6384bar, the May 9 decision was based solely on oral assertions

6395made at a preapplication meeting and a one-page letter from

6405the applicant. No other written information was provided

6413regarding the true nature of the Brown Schools' operations

6422prior to the issuance of the decision. As it turned out, the

6434oral and written information submitted by the Brown Schools

6443prior to the May 9 decision was not wholly accurate.

645343. Likewise, the July 21 decision was predicated on

6462program information submitted by the Brown Schools which

6470clearly established the presence of a criminal element in

6479every aspect of the Brown Schools' programs given the nature

6489of the competency restoration program. The criminal element

6497was not contemplated, and was specifically rejected, by the

6506Board when adopting the applicable zoning ordinance. Thus,

6514the intended use conflicted with the applicable zoning

6522conditions and the intent of the Board in adopting the site-

6533specific conditions. Accordingly, the Director did not have

6541sufficient competent evidence upon which to base his decision.

655044. Appellants' final contention is that the letter of

6559July 25, which allowed the Brown Schools to erect a chain-link

6570fence on the property, also constituted a major modification

6579of the approved planned development for two reasons: the

6588original site plan submitted in 1986 did not include a

6598perimeter fence, and the Board approved the zoning only after

6608accepting a representation from the applicant that the

6616hospital building would be "without bars, gates or fences."

6625Given these considerations, which were not contradicted, it is

6634concluded that the erection of a fence constitutes a

6643modification of a final development plan within the meaning of

6653Section 2224C.9 ., since it represents a "change in a condition

6664specifically required by the [Board] as part of the final

6674approval." Therefore, in this respect, the Director departed

6682from the essential requirements of the law, and his decision

6692of July 25 should be reconsidered.

669845. In reaching the above conclusions, the undersigned

6706has considered a contention by the Brown Schools that if the

6717property is restricted to a licensed hospital, then the

6726facility must remain vacant until AHCA determines that

6734additional hospital psychiatric beds are needed in Citrus

6742County, and the occupant of the property obtains a Certificate

6752of Need. They go on to argue that such a result may

6764constitute a temporary or permanent taking of their property.

6773However, because this matter is not a concern in a land use

6785proceeding, it need not be reached.

679146. Finally, by letter filed on August 1, 2000, counsel

6801for Appellants in Case No. 01-1119 has suggested that the Code

6812does not authorize the filing of exceptions to this

6821Recommended Order, notwithstanding a reservation of such

6828rights found in the Brown Schools' Proposed Recommended Order.

6837Since the County administers the Code, that decision is

6846reserved for the County when this matter is reconsidered.

6855Parenthetically, however, it is noted that exceptions were

6863filed by the parties in the only other contract case referred

6874by the County to the Division of Administrative Hearings (DOAH

6884Case No. 99-0147).

6887RECOMMENDATION

6888Based on the foregoing Findings of Fact and Conclusions

6897of Law, it is

6901RECOMMENDED that the Director of Development Services

6908reconsider his decisions of May 9, July 21, and July 25, 2000,

6920for the reasons expressed in this Recommended Order.

6928DONE AND ENTERED this 15th day of August, 2001, in

6938Tallahassee, Leon County, Florida.

6942___________________________________

6943DONALD R. ALEXANDER

6946Administrative Law Judge

6949Division of Administrative Hearings

6953The DeSoto Building

69561230 Apalachee Parkway

6959Tallahassee, Florida 32399-3060

6962(850) 488- 9675 SUNCOM 278-9675

6967Fax Filing (850) 921-6847

6971www.doah.state.fl.us

6972Filed with the Clerk of the

6978Division of Administrative Hearings

6982this 15th day of August, 2001.

6988COPIES FURNISHED:

6990Gary W. Maidhof, Director

6994Department of Development Services

6998Citrus County

70003600 West Sovereign Path

7004Lecanto, Florida 34461-8070

7007Julie Hions O'Kane, Esquire

7011Drage, deBeaubien, Knight, Simmons,

7015Mantzaris & Neal, P.A.

7019Post Office Box 87

7023Orlando, Florida 32802-0087

7026Clark A. Stillwell, Esquire

7030Brannen , Stillwell & Perrin , P.A.

7035Post Office Box 250

7039Inverness, Florida 34451-0250

7042James A. Neal, Jr., Esquire

7047James A. Neal, Jr., P.A.

7052452 Pleasant Grove Road

7056Inverness, Florida 34452-5746

7059David C. Ashburn, Esquire

7063Greenberg Traurig , P.A.

7066101 East College Avenue

7070Tallahassee, Florida 32301-7703

7073Carl E. Kern, Esquire

70773600 West Sovereign Path, Suite 267

7083Lecanto, Florida 34461-7726

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 08/23/2001
Proceedings: Letter to G. Maidhof from J. Neal, Jr. regarding Exceptions to the Recommended Order filed.
PDF:
Date: 08/15/2001
Proceedings: Recommended Order
PDF:
Date: 08/15/2001
Proceedings: Recommended Order issued (hearing held May 30, 2001) CASE CLOSED.
PDF:
Date: 08/15/2001
Proceedings: Recommended Order cover letter identifying hearing record referred to the Agency sent out.
PDF:
Date: 08/01/2001
Proceedings: Letter to Judge Alexander from C. Stillwell regarding "Recommended Orders" filed.
PDF:
Date: 07/20/2001
Proceedings: (Petitioners) Proposed Recommended Order (filed via facsimile).
PDF:
Date: 07/20/2001
Proceedings: (Respondents) Proposed Recommended Order (filed via facsimile).
Date: 05/30/2001
Proceedings: CASE STATUS: Hearing Held; see case file for applicable time frames.
PDF:
Date: 05/29/2001
Proceedings: Petitioner`s Motion for Continuance filed.
Date: 05/22/2001
Proceedings: Citrus County Zoning Ordinance filed.
PDF:
Date: 05/16/2001
Proceedings: Letter to Judge D. Davis from C. Stillwell (confirmation of briefs filed by parties) filed via facsimile.
PDF:
Date: 05/16/2001
Proceedings: Letter to Judge D. Davis form J. Neal (confirming location of hearing) filed via facsimile.
PDF:
Date: 04/23/2001
Proceedings: Petitioner, Black Diamond Properties, Et. Al`s Request for Preliminary Pre-Trail Conference filed.
PDF:
Date: 04/13/2001
Proceedings: Letter to Clerk from E. Battista (forwarding record to Judge Davis, less Item No. 23 which will be fowarded by J. Neal); Letter to R. Battista from L. Haag (stating that Citrus County will not intervene in the appeal) filed.
PDF:
Date: 04/04/2001
Proceedings: Response to Amended Initial Order (filed by Brown Schools of Florida via facsimile).
PDF:
Date: 04/03/2001
Proceedings: Notice of Hearing issued (hearing set for May 30, 2001; 9:30 a.m.; Inverness, FL).
PDF:
Date: 04/02/2001
Proceedings: Notice of Appearance of Counsel (filed by D. Ashburn via facsimile).
PDF:
Date: 04/02/2001
Proceedings: Order of Consolidation issued (consolidated cases are: 01-001119, 01-001120).
Date: 03/28/2001
Proceedings: Response to Initial Order (filed by Petitioner via facsimile).
PDF:
Date: 03/27/2001
Proceedings: Initial Order issued.
PDF:
Date: 03/26/2001
Proceedings: Letter to Judge Smith from C. Stillwell regarding receipt of Initial Order filed.
PDF:
Date: 03/21/2001
Proceedings: Marvin Query`s Reply Brief filed.
PDF:
Date: 03/21/2001
Proceedings: Marvin Query`s Initial Brief on Appeal filed.
PDF:
Date: 03/21/2001
Proceedings: Initial Brief of Appellant filed.
PDF:
Date: 03/21/2001
Proceedings: Answer Brief of Appellee the Brown Schools of Florida, Inc. filed.
PDF:
Date: 03/21/2001
Proceedings: Black Diamond Homeowner`s Association, Inc., et. al.`s Reply Brief filed.
PDF:
Date: 03/21/2001
Proceedings: Agency referral filed.
PDF:
Date: 03/21/2001
Proceedings: Initial Order issued.

Case Information

Judge:
D. R. ALEXANDER
Date Filed:
03/21/2001
Date Assignment:
05/25/2001
Last Docket Entry:
08/23/2001
Location:
Inverness, Florida
District:
Northern
Agency:
Contract Hearings
 

Counsels

Related DOAH Cases(s) (3):

Related Florida Statute(s) (1):