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.

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BLACK DIAMOND HOMEOWNERS )

ASSOCIATION, INC., BLACK )

DIAMOND PROPERTIES, INC., and )

JERRY AND ANN KERL , )

)

Appellants , )

)

vs. ) Case No. 01-1119

)

CITRUS COUNTY and THE BROWN )

SCHOOLS OF FLORIDA, INC. , )

)

Appellees . )

________________________________)

)

MARVIN QUERY , )

)

Appellant , )

)

vs. ) Case No. 01-1120

)

CITRUS COUNTY and THE BROWN )

SCHOOLS OF FLORIDA, INC. , )

)

Appellees . )

________________________________)

RECOMMENDED ORDER

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

2001, in Inverness, Florida, by Donald R. Alexander, an

Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Appellants : Clark A. Stillwell, Esquire

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

Post Office Box 250

Inverness, Florida 34451-0250

For Appellant : Julie Hions O'Kane, Esquire

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

Mantzaris & Neal, LLP

Post Office Box 87

Orlando, Florida 32802-0087

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

(Brown School) 452 Pleasant Grove Road

Inverness, Florida 34452-5746

David C. Ashburn, Esquire

Greenberg Traurig , P.A.

101 East College Avenue

Tallahassee, Florida 32301-7703

For Appellee : Carl E. Kern, Esquire

(County) 3600 West Sovereign Path, Suite 267

Lecanto, Florida 34461-7726

STATEMENT OF THE ISSUE

The issues are whether the following decisions of the

Director of Development Services of Citrus County on May 9,

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

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

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

described in Sections 2021 through 2023 of the Citrus County

Land Development Code and is consistent with Rezoning

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

of a fence on the property complied with the Citrus County

Land Development Code.

PRELIMINARY STATEMENT

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

the Department of Development Services of Appellee , Citrus

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

that its proposed use of certain property in Citrus County,

Florida, as a "psychotherapeutic hospital" did not constitute

a change of use as described in the Citrus County Land

Development Code, and that it could commence operations at

that location. After objections in the form of two appeals

were lodged by Appellants, Black Diamond Homeowner's

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

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

01-1120), further documentation was requested from the school.

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

of Development Services concluded that the "proposed

operations by the Brown Schools of Florida are within the

perameters of the binding zoning conditions of [Planned

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

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

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

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

Department of Development Services concluded that the fence

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

in accordance with the Land Development Code. All three

decisions have been appealed by Appellants.

When the appointed local Hearing Officer assigned to hear

these cases resigned to accept a position as County Attorney,

the matters were referred by Citrus County to the Division of

Administrative Hearings on March 21, 2001, pursuant to a

contract between the two entities.

After the two cases were consolidated, by Notice of

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

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

cases were transferred from Administrative Law Judge Don W.

Davis to the undersigned.

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

the Land Development Code, the parties presented oral argument

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

testimony or cross-examination of witnesses. However, the

documents submitted to the Director of the Department of

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

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

parties, the undersigned has accessed relevant portions of the

Citrus County Land Development Code on the Internet at

www.bocc.citrus.fl.us.

There is no transcript of the hearing. The time for

filing Proposed Findings of Fact and Conclusions of Law was

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

parties except Citrus County and have been considered by the

undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of

fact are determined:

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

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

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

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

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

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

its owner for the purpose of operating a State-licensed

"residential child-caring facility." Appellants, Black

Diamond Homeowner's Association, Inc., Black Diamond

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

objected to the proposed use on numerous grounds. As

residents or owners of property adjacent to the subject

property, Appellants have standing to bring these appeals.

2. The property was originally zoned agriculture. In

1986, Community Care Systems, Inc. (Community Care), which

then had a contract to purchase the property from a principal

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

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

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

classification. The stated purpose of the application was to

permit the construction and operation of a private psychiatric

hospital for alcohol and drug rehabilitation. The application

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

was as a 60,000 square feet psychiatric hospital licensed

under Chapter 381, Florida Statutes, which would "provide

comprehensive psychiatric treatment for people of all ages."

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

Development Code (Code), private hospitals were only

authorized in the commercial land use districts. There was no

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

dictated that the original facility could only be used as a

private psychiatric hospital in a commercial zone. Since an

application for straight commercial rezoning on the property

would have been inconsistent with the County's then existing

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

used for a private psychiatric facility was if the property

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

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

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

district, hospitals are permitted only in a "General

Commercial distict, while "Institutional" uses that are not

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

In any event, the 1986 ordinance and final development plan

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

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

rezoning application was filed, the 1986 Code contained a

Commercial, Residential, Institutional and Office ( CRIO) land

use district which allowed, among other things, the

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

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

and other group homes, supervised living facilities meeting

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

application, Community Care did not seek an institutional use

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

application here, and there is no indication in the record

that it was even considered by the County in making the

decisions under appeal.

5. When the rezoning application was filed, Community

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

authorized construction of a facility with 51 short-term

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

treatment of adults, including geriatric patients.

6. The minutes of the Citrus County Board of County

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

which the zoning modification was approved, reflect that

concerns were raised by abutting citizens of Beverly Hills,

who belonged to a group known as United Residents of Beverly

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

achieve the necessary zoning approvals, Community Care

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

that it would not accept court commitments, "criminally

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

admissions would be voluntary or by short term civil

commitment papers; that patient referral would be by direct

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

local health professional, by transfer from local general

hospitals, and by law enforcement if no charges are pending

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

house onsite felons or violent patients; and that the building

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

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

acknowledgement that the facility was never intended to be

used to accept law enforcement referrals, court commitments,

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

criminally insane individuals.

7. Having received the above representations from the

applicant, the Board incorporated both a URBH letter and the

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

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

subject to certain conditions. That Ordinance expressly

limited and conditioned the uses allowed on the property to

the uses approved in the Ordinance. The operative section at

issue regarding this appeal is Condition 2, which required

that:

2. Approval be limited to a 60,000 square

foot (88 bed) psychiatric care facility in

accordance with state guidelines.

8. Thereafter, a facility was constructed and Community

Care operated a psychiatric care hospital on the property

under various names until sometime in 1997, when Community

Care (then operating the facility under the name of Heritage

Hills Hospital of Beverly Hills) voluntarily ceased to provide

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

Certificate of Need automatically expired when it was returned

to the Agency for Health Care Administration (AHCA) on

June 12, 1998.

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

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

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

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

Application Review" with the County's Community Development

Division and met with County staffers in an effort to gain

approval for their facility. A preapplication is filed

"before submittal of an application for development order,"

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

preapplication conference is then held with County staffers

to acquaint the applicant with substantive

and procedural requirements of this LDC,

provide for an exchange of information

regarding the applicable elements of the

Comprehensive Plan, the LDC, and other

development requirements, arrange such

technical and design assistance assistance

as will aid the applicant in interpretation

of requirements, and to otherwise identify

policies and regulations that create

opportunities or pose significant

constraints for the proposed development.

The same section provides that the purpose of the conference

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

the proposed use of the property is appropriate according to

the Comprehensive Plan and to determine whether it is

reasonable to expect that the proposed development can be

accommodated on the site in full compliance with requirements

of this LDC ."

11. The preapplication reflected that the project name

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

handwritten notation by a County staffer at the bottom of the

preapplication indicates that "no change of use/no

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

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

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

shortly before the preapplication was filed, reflected that

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

children and adolescents."

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

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

conditions in which the facility was permitted and we will not

be changing its use."

13. In response to that representation, by letter dated

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

Development Services (Director), who reviews both

preapplications and development order applications, advised in

part as follows:

Pursuant to the preapplication meeting of

March 23, 2000, and your correspondence of

May 5, 2000, please accept this letter as

confirmation that the proposed change does

not constitute a Change of Use as described

in Sections 2021 through 2023. As noted in

your letter, the Brown Schools of Florida

are bound by the original planned

development approved conditions. Should at

a future date you desire to modify the

structure, grounds, operation, or any of

the conditions, a new review by Citrus

County will be needed and may warrant a

public hearing as provided in Section 2224

of the LDC.

In reaching those conclusions, it is assumed the Director

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

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

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

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

14. The letter also specifically refers to the Brown

Schools' plan to operate the property as a "psychotherapeutic

hospital for children," and it asked that the applicant

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

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

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

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

the process concerning the Brown Schools' operations and

programs to support the decision made by the County, although

such information had been submitted to the Department of

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

licenses adolescent facilities.

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

the Brown Schools expressly stated that they would be

accepting sexual offenders, in addition to juveniles charged

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

profile for those admitted to the Brown Schools' sexual

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

more intensive levels of acute care, hospitalizations, had

multiple failed residential placements or may have failed at

outpatient services."

16. The documents submitted to DCF also reflect that the

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

originally represented to the County, but rather it is

operating something more akin to a juvenile detention center.

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

safety by providing protection for the community from

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

be dedicated to providing services under a contract with the

State of Florida for competency restoration. Such a

prerequisite is necessary for admission to the Brown Schools'

competency restoration program. Under this program, clients

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

clients are only discharged when they are determined to be

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

will never gain such competency. This lack of freedom

illustrates that the intended use of the facility is as a

detention facility, and not as a private psychiatric hospital.

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

the statutory requirements for operation, as a psychiatric

hospital.

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

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

the May 9 letter under Section 2500 of the County Land

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

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

the Director requested an opinion from the County Attorney on

whether his May 9 letter constituted action which triggered

the provisions of Section 2500. In a memorandum dated

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

for the following reasons:

It is my opinion that since no application

has been filed nor development order issued

or a request for determination made that

your letter of May 9th is non- appealable by

the terms of the Land Development Code.

Section 2210 entitled Preapplication is

merely a conference held before submittal

of an application for a development order.

* * *

It is not an action taken by the Director

which could lead to an appeal pursuant to

Section 2500.

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

had not made a final determination on the Brown Schools'

compliance with the zoning conditions and therefore refused to

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

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

appeals process.

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

to the concerns raised by Appellants, the Director provided

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

requested that Appellee provide him with a copy of the DCF

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

for the first time, the Director specifically requested

documentation on the planned operation and programs at the

facility since Appellants had questioned whether "the facility

will be in compliance with the original zone change compliance

conditions."

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

2000, the Brown Schools provided the Director with a copy of

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

revised program information. The program information was

revised (from that described in the application) after the

appeals were taken to reflect a change in program titles and

other terminology from that originally used. For example, the

"Sexual Offender Program" was changed to "Sexual Abuse

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

remains the same.

20. In order to receive a license to operate its

institution from the DCF, the Brown Schools was required to

demonstrate that it had received final zoning approval. Even

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

that final zoning approval had not been made, the Brown

Schools represented to the DCF that it had received final

zoning approval by submitting the May 9 letter. In reliance

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

Schools a license to operate a residential child-caring

facility. The license was issued under Section 409.175,

Florida Statutes (1999), which specifically provided that

"child-caring facilities do not include hospitals."

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

placing juvenile offenders at their facility, and these

residents have remained there during the pendency of these

appeals.

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

letter which constituted his final determination on the

matter. That letter is found in three exhibits, including

Exhibit 18. The Director concluded that the Brown Schools'

proposed use of the property was consistent with the

applicable zoning conditions. In his letter, the Director

focused on Condition 2 of the zoning ordinance, and whether

the intended use was in conformity with the requirement that

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

psychiatric care facility in accordance with State

guidelines." Of relevance here were the following

conclusions:

[Condition 2] specifically utilizes the

term "facility" and not hospital, and the

term "State guidelines" rather than

specific Florida statutes, administrative

codes, or state programs. This is a

significant distinction and a core basis of

this determination. The County cannot

administratively expand, contract, or

modify the language or intent of the

condition when it uses plain and obvious

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

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

zone change were those spelled out in the

adopted conditions - not those discussed

either within or outside the public hearing

process by the applicant at that time.

The second core issue is whether the

proposed Brown operation can be considered

a psychiatric care facility. The original

developer, Community Care Systems, Inc.,

provided comprehensive psychiatric

treatment for people of all ages with acute

emotional, behavioral, and chemical

dependency problems. The facility operated

as a hospital and so was governed by the

then Florida Department of Health and

Rehabilitative Services as a hospital,

subject to the provisions of the Health

Facility and Services Development Act.

These regulations served as the state

guidelines referenced in Condition 2.

The Brown Schools of Florida proposed

operation for the Marc Knighton Court

facility is a residential child caring

facility as licensed by the Florida

Department of Children and Families.

Florida Statute (Chapter 409) provides the

definition of a residential child caring

agency (facility implied within the

definition) that is broad in scope

recognizing a number of types, including

maternity homes, group homes, emergency

shelters, and wilderness camps. Therefore,

unlike the DHRS license obtained by

Community Care Systems, Inc., which clearly

established compliance with Condition #2,

obtaining of the DCF license does not in

and of itself serve the same role.

To ascertain compliance with the

psychiatric care definer of Condition #2, I

must look to the Brown Schools' proposed

program and the draft contract with the

DCF. The program summary from the Brown

Schools of Florida lists four program

types : Sexual Abuse Treatment Program,

Child and Adolescent Residential Treatment

[P] rogram (male and female], and

Residential Treatment Program for

Developmentally Delayed Youth.

They all share the use of an inter-

disciplinary treatment team centered around

the psychiatric evaluation, treatment and

community integration of the client(s).

This is similar in scope to some of the

original hospital's programs, though in the

Brown Schools case it is oriented to

children referred/placed by the State as

opposed to private placement.

The draft contract, specifically Attachment

1, Section A, 2d, reaffirms these programs

and the desired goals. While there is a

difference from the original Community Care

Systems operation, the fact remains that

the supporting documentation provided by

the Brown Schools of Florida clearly

establishes that psychiatric care is a

principle (sic) component of their

operation and, as such, must be taken as

face value compliance with Condition #2 of

the Zone Change.

Much has been made of the fact that the

Brown School operation will treat youth who

have been found incompetent to proceed.

This is an issue outside the purview of

land use and, in fact, the attorney

representing the original applicant in 1986

made the same observation that these types

of issues were not land use related.

The determination of incompetency lies

solely within the State of Florida through

its judicial officers or their designees.

It is neither feasible nor appropriate for

local government through its police powers

to try to regulate these matters.

Secondly, much has been made of the

potential for the Brown Schools program to

evolve into a juvenile detention facility,

whole or in part due to the generality of

the DCF license. Whether this can occur is

open to debate, but Florida case law on

this matter is clear. Conetta vs. City of

Sarasota has established that one cannot

presume violations of the Code for the

purpose of denial. Rather, the appropriate

approach on this issue is to take

corrective enforcement action after a

documented violation occurs.

Timely appeals of this letter were filed by Appellants.

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

requested a "minor modification to [the] Land Development

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

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

suggested otherwise by Appellants, the fence was not a

perimeter fence around the entire facility, but only a fence

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

least part of the facility and the adjacent property had

already been constructed by one of the Appellants.

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

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

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

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

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

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

previously approved Planned Developments (PD) as long as they

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

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

fence. This decision has also been appealed by Appellants on

the grounds that the original site plan contained no fences,

and the Board approved the zoning change in 1986 only after

the applicant represented that no fences would be erected.

The construction of the fence has been stayed during the

pendency of these appeals.

CONCLUSIONS OF LAW

25. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties hereto

pursuant to Section 2500 of the Code.

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

guidelines for an administrative law judge (or local hearing

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

of the Department of Development Services:

When a decision is appealed the Hearing

Officer assigned to hear the appeal shall

conduct the hearing in compliance with the

following procedures as supplemented where

necessary:

1. The Hearing Officer's review shall be

limited to the record and applicable law.

2. The Hearing Officer shall have the

authority to review questions of law only,

including interpretations of this LDC and

any constitution, ordinance, statute, law,

or the rule or regulation of binding legal

force. For this purpose, an allegation

that a particular application before the

decisionmaker is not supported by competent

substantial evidence in the record as a

whole is deemed to be a question of law.

The Hearing Officer may not reweigh the

evidence but must decide only whether any

reasonable construction of the evidence

supports the decision under review.

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

guidelines for the disposition of an appeal:

1. The Hearing Officer must affirm each

contested decision or find it to be in

error. The Hearing Officer shall prepare a

written opinion stating the legal basis for

each ruling.

2. When the Hearing Officer affirms a

contested decision pertaining to a final

action of a decisionmaker, that action

shall be deemed to be the final action of

the decisionmaker and shall be subjected to

no further review under this LDC. The

Hearing Officer shall submit the opinion to

the decisionmaker, the parties, and the

department involved.

3. When the Hearing Officer finds any

decision to be in error, that decision

shall be referred back to the decision-

maker, the parties, and the department

involved.

28. Under these circumstances, and notwithstanding any

ambiguity in the Code, a Recommended Order is an appropriate

disposition of these cases, particularly since the Director

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

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

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

99-0147 (Citrus County, July 14, 1999)(because any decision is

referred back to the Citrus County Department of Development

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

appropriate).

29. Within the foregoing perameters, several broad

principles apply here. First, the legal issue herein involves

one of construction of an ordinance which is not ambiguous.

Under these circumstances, legal issues of statutory

construction are reviewable de novo and no deference is given

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

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

2000). In addition, the parties agree that because the

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

be sustained, the decision must be in accord with the

essential requirements of the law, the decision must be

supported by competent substantial evidence, and the local

government must adhere to the requirements of procedural due

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

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

County has observed the essential requirements of the law

turns on whether the Director applied the correct law in the

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

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

law" is synonymous with "observing the essential requirements

of the law").

30. Appellants first contend that the Director departed

from the essential requirements of the law and failed to

adhere to the requirements of due process by failing to

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

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

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

occurred, and the Brown Schools could not have commenced

operations unless and until a favorable decision was reached

in those appeals.

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

appeals to a hearing officer was based on a memorandum dated

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

memorandum basically concluded that the filing of a

preapplication by the Brown Schools did not constitute the

filing of an application or the issuance of a development

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

provisions of Section 2500. Rather, he concluded that the

filing simply entitled the applicant to a conference between

the County and the applicant for the purposes described in

Section 2210 of the Code.

32. Section 2500 authorizes "decisions of the Director"

to be appealed subject to certain requirements described in

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

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

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

the proposed change does not constitute a Change in Use as

described in Sections 2021 through 2023," an interpretation

vigorously disputed by Appellants. The practical effect of

the letter was to advise the Brown Schools that no application

for development was required since no change in use had

occurred. It also had the effect of permitting the

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

Code) that was arguably inconsistent with the Comprehensive

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

circumstances, Appellants were entitled to have the

correctness of the "decision" resolved by an impartial hearing

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

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

Director departed from the essential requirements of the law,

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

33. Appellants next contend that the Director departed

from the essential requirements of the law in four respects.

First, they assert that he erred by permitting the Brown

Schools to use the property as a juvenile detention center in

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

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

property is different from that originally approved, the

County failed to require compliance with the major

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

Appellants further argue that the Brown Schools' use of the

property represents a change in use under Section 2020 of the

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

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

Finally, Appellants contend that the decision of the Director

permits development on the property, but does not require that

the Brown Schools obtain a development order, as contemplated

by the Code. For the reasons expressed below, these

contentions, which are all interrelated, are found to have

merit.

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

Director relied upon the fact that because the Board used the

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

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

property to only psychiatric hospitals, but rather it intended

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

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

however, was both logical and consistent with the statutory

scheme then governing hospitals. When Community Care received

its Certificate of Need in 1984, hospitals were governed by

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

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

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

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

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

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

intermediate care facility, ambulatory surgical center, or

freestanding hemodialysis center." By using the term

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

the most liberal interpretation of the term, the Board

intended to permit only those institutions which were then

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

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

caring facility, or anything similar to the facility now being

operated by the Brown Schools.

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

in Condition 2 rather than a specific statutory provision or

administrative rule is not surprising, particularly since

state laws or rules are frequently renumbered, repealed, or

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

reference could quickly become outdated. By way of

illustration, hospitals are now licensed under Chapter 395,

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

Statutes, and any reference to the latter statute in Condition

2 would have resulted in both confusing and outdated language.

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

Schools' operation "can be considered a psychiatric care

facility," based on the information contained in the draft

contract with DCF and the program summary submitted to the

Director. While admittedly there is a psychiatric component

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

conclusion that the Brown Schools intends to operate an

involuntary juvenile detention facility cloaked under the

guise of solely providing psychiatric services to children.

37. Further evidence that the Board intended to severely

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

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

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

the applicant that admissions to the hospital would be

voluntary or by short term civil commitment papers; that there

would be no court commitments, criminally insane, or special

problem cases; that there would be no violent or dangerous

type patients treated at the facility; that patient referral

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

professional, or by transfer from local general hospitals, and

by law enforcement if no charges were pending. By accepting

such representations from the applicant, and making them a

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

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

that it never intended to allow the facilities on the property

to be used to accept law enforcement referrals, court

commitments, or other non-voluntary commitments.

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

was to permit the construction and operation of a private

psychiatric hospital, and that the Board intended to severely

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

concerns voiced at the Board meeting where the zoning

ordinance was adopted. Accordingly, the only reasonable

construction of the evidence is that the applicable zoning

ordinance prohibits the use of the property as a juvenile

detention center. By construing the Ordinance and Condition

in a different manner, the Director departed from the

essential requirements of the law.

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

the property is for operations that are new and different from

uses approved in the approved planned development, and that

the new use constitutes development. "Development" is defined

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

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

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

2021 as "any change of the purpose or activity for which a

piece of land or its buildings is designed, arranged or

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

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

change in the use of land and such a change constitutes

development. If a change in use is determined to be

inconsistent with the existing zoning classification, as it is

here, then the change must be approved through the

"development order" process under the Code.

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

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

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

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

square foot (88 bed) psychiatric care facility in accordance

with State guidelines. Because the Brown Schools are

essentially operating a juvenile detention center on the

property, which constitutes a major modification of the

previously approved plan of development, the Director departed

from the essential requirements of the law by not requiring

the applicant to seek approval for the change through the

"development order" process in the Code.

41. In summary, by permitting the Brown Schools to

operate in violation of the applicable controlling zoning

ordinance terms, and allowing a new change in use and

development on the property without requiring the applicant to

follow the development order process, the Director did not

apply the correct law, and he departed from the essential

requirements of the law. No reasonable construction of the

evidence supports a contrary conclusion. Therefore, the

July 21 decision should be reconsidered.

42. In addition to the foregoing reasons, the record

also shows that the May 9 decision is not supported by

competent substantial evidence. For an action to be sustained

under the competent substantial evidence standard of review,

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

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

1981), approved , 419 So. 2d 1041 (Fla. 1982). In the case at

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

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

the applicant. No other written information was provided

regarding the true nature of the Brown Schools' operations

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

oral and written information submitted by the Brown Schools

prior to the May 9 decision was not wholly accurate.

43. Likewise, the July 21 decision was predicated on

program information submitted by the Brown Schools which

clearly established the presence of a criminal element in

every aspect of the Brown Schools' programs given the nature

of the competency restoration program. The criminal element

was not contemplated, and was specifically rejected, by the

Board when adopting the applicable zoning ordinance. Thus,

the intended use conflicted with the applicable zoning

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

specific conditions. Accordingly, the Director did not have

sufficient competent evidence upon which to base his decision.

44. Appellants' final contention is that the letter of

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

fence on the property, also constituted a major modification

of the approved planned development for two reasons: the

original site plan submitted in 1986 did not include a

perimeter fence, and the Board approved the zoning only after

accepting a representation from the applicant that the

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

Given these considerations, which were not contradicted, it is

concluded that the erection of a fence constitutes a

modification of a final development plan within the meaning of

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

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

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

from the essential requirements of the law, and his decision

of July 25 should be reconsidered.

45. In reaching the above conclusions, the undersigned

has considered a contention by the Brown Schools that if the

property is restricted to a licensed hospital, then the

facility must remain vacant until AHCA determines that

additional hospital psychiatric beds are needed in Citrus

County, and the occupant of the property obtains a Certificate

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

constitute a temporary or permanent taking of their property.

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

proceeding, it need not be reached.

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

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

does not authorize the filing of exceptions to this

Recommended Order, notwithstanding a reservation of such

rights found in the Brown Schools' Proposed Recommended Order.

Since the County administers the Code, that decision is

reserved for the County when this matter is reconsidered.

Parenthetically, however, it is noted that exceptions were

filed by the parties in the only other contract case referred

by the County to the Division of Administrative Hearings (DOAH

Case No. 99-0147).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that the Director of Development Services

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

for the reasons expressed in this Recommended Order.

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

Tallahassee, Leon County, Florida.

___________________________________

DONALD R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488- 9675 SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 15th day of August, 2001.

COPIES FURNISHED:

Gary W. Maidhof, Director

Department of Development Services

Citrus County

3600 West Sovereign Path

Lecanto, Florida 34461-8070

Julie Hions O'Kane, Esquire

Drage, deBeaubien, Knight, Simmons,

Mantzaris & Neal, P.A.

Post Office Box 87

Orlando, Florida 32802-0087

Clark A. Stillwell, Esquire

Brannen , Stillwell & Perrin , P.A.

Post Office Box 250

Inverness, Florida 34451-0250

James A. Neal, Jr., Esquire

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

452 Pleasant Grove Road

Inverness, Florida 34452-5746

David C. Ashburn, Esquire

Greenberg Traurig , P.A.

101 East College Avenue

Tallahassee, Florida 32301-7703

Carl E. Kern, Esquire

3600 West Sovereign Path, Suite 267

Lecanto, Florida 34461-7726