99-000147 Florida Rock Industries, Inc. vs. Citrus County Status: Closed Recommended Order on Friday, June 4, 1999.

Summary: Motion to dismiss as moot was granted upon evidence that Comprehensive Plan and all maps were in sync before incompleteness determination appeal was complete.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA ROCK INDUSTRIES,

)

Petitioner, )

)

vs. ) Case No. 99-0147

)

CITRUS COUNTY, )

)

Respondent. )

)

RECOMMENDED ORDER

This cause came on for consideration upon Respondent's

Motion to Dismiss. Oral argument was heard in Tallahassee,

Florida, on April 8, 1999, by Ella Jane P. Davis, Administrative

Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Clark Stillwell, Esquire

Brannen, Stillwell & Perrin

Post Office Box 250

Inverness, Florida 34451-0250

For Respondent: Thomas Pelham, Esquire

Apgar & Pelham

909 East Park Avenue

Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

May this appeal be dismissed as moot due to the

impossibility of the development order being granted?

PRELIMINARY STATEMENT

This cause was referred to the Division of Administrative

Hearings on or about January 11, 1999, pursuant to the Citrus

County Land Development Code, providing for administrative

appeals of certain land use and development decisions and a

December 1, 1998, contract between Citrus County and the Division

of Administrative Hearings to provide Administrative Law Judges

for such appeals.

Pursuant to Sections 2450-53, and 2500 of the Citrus County

Land Development Code, the Administrative Law Judge's powers,

duties, and jurisdiction and the scope and standard of review are

more limited than in proceedings pursuant to Chapter 120, Florida

Statutes, as more fully set out in the following Conclusions of

Law. However, any decision here is referred back to the Citrus

County Department of Development Services for entry of a final

order. Therefore, this is a Recommended Order.

The case was transmitted, with most of the record intact and

with Appellant/Petitioner Florida Rock's Brief already filed, to

the Division of Administrative Hearings on January 13, 1999.

On January 14, 1999, Appellee/Respondent Citrus County filed

its Answer Brief, Motion to Strike Portions of Appellant's Brief,

and Motion to Dismiss for Mootness.

A telephonic conference was held January 20, 1999, for pre-

hearing and scheduling purposes, and a February 2, 1999, Order

devised a time-line for narrowing the issues, clarifying all

pleadings, and completing the record on appeal.

On February 22, 1999, Florida Rock filed its Response to

Motion to Dismiss, and the parties filed their Joint Stipulation

as to Jurisdiction, Scope of Hearing, and Standard of Review.

On February 25, 1999, Florida Rock filed a Notice of

Additional Authority.

On March 1, 1999, Citrus County filed its Reply to the

Response and requested oral argument.

On March 17, 1999, an Administrative and Scheduling Order

was entered. It provided, in pertinent part,

[I]t is FOUND, DETERMINED, and ORDERED:

1. Heatherwood Community Owners Association,

Inc. withdrew its Petition/Motion to

Intervene prior to referral of this cause to

the Division of Administrative Hearings, and

therefore, Heatherwood Community Owners

Association, Inc., has no part in these

proceedings.

2. No other potential intervenors have been

identified.

3. The parties have entered into a

Stipulation as to Jurisdiction, Scope of

Hearing, and Standard of Review. Upon

consideration thereof and comparison with the

copy of relevant portions of the Citrus

County Land Development Code (LDC) provided,

the parties' stipulation is recognized as the

"law of the case," thus far. In an abundance

of caution, and for clarity of the record, a

copy of this stipulation is attached and

incorporated herein by reference.

4. At this time, Citrus County's Motion to

Dismiss for Mootness; Florida Rock's

Response, Notice of Filing Additional

Authority, FAX of further authority; and

Citrus County's Reply to Response remain

pending.

5. By telephonic conference call on

March 11, 1999, Florida Rock has waived the

opportunity to file a written response to

Citrus County's Reply to Response to the

Motion to Dismiss, and the parties have

stipulated to oral argument on Citrus

County's Motion to Dismiss for Mootness at

2:00 p.m., April 8, 1999, at the Division of

Administrative Hearings, the DeSoto Building,

1230 Apalachee Parkway, Tallahassee, Florida.

Oral argument was heard on April 8, 1999. At that time, the

parties stipulated to certain facts. A court reporter was

present. The proceeding has not been transcribed, but the

undersigned has reviewed the audio tapes. This Recommended Order

is entered upon undisputed facts.

FINDINGS OF FACT

1. This case involves Florida Rock's May 20, 1992,

application for a development order to the Citrus County

Department of Development Services (LDDS or Department) for a

mining operation.

2. Sometime after 1980, the real property at issue had been

designated "extractive" on the Future Land Use Map (FLUM).

3. Citrus County's 1986 Comprehensive Plan designated

Florida Rock's real property as "extractive."

4. In 1990, after the State of Florida, Department of

Community Affairs challenged the "extractive" designation in the

County's 1989 plan amendments, the site continued to be

designated "extractive." Citrus County simultaneously enacted

its Citrus County Land Development Code (LDC or Code). At all

such times, zoning and all maps also embraced the same

"extractive" designation.

5. Citrus County maintains two sets of land use maps. The

Comprehensive Land Use Plan (CLUP or Comprehensive Plan) has a

FLUM (a generalized land use map) and the LDC has attached to it

atlas maps on a smaller scale. The LDC maps are identical to the

county tax assessor tax maps and show individual parcels/lots of

record. Such parcels defined by the Comprehensive Plan and LDC

text have a land use designation as associated with each.

6. Mining operations are permitted on real property

designated "extractive."

7. Under the LDC, when an application is submitted, it must

be reviewed for completeness and the applicant notified within

three days of whether the application is deemed complete or

incomplete. If the application is deemed incomplete, the

applicant must be advised of how the application should be

amended or supplemented in order to be deemed complete for

technical review. The applicant then may amend or supplement the

application.

8. Once a determination of completeness has been made, a

technical review must be completed by each member of the

technical review team within ten days, and thereafter, a series

of committee meetings and public hearings may follow. During

this portion of the procedure, amendments to the application may

be required before the development order is ultimately granted or

denied.

9. Citrus County's land use amendment process began on

April 10, 1992, before Florida Rock's application was submitted

to the LDDS. Florida Rock had actual notice on April 10, 1992,

that a change in its property designation from "extractive" to

"rural residential" was pending, but no moratorium on development

orders was imposed. Thus, the "rush to the Commission" began. 1

10. On May 20, 1992, Florida Rock's application for a

development order to permit mining on its real property was

submitted to the Citrus County LDDS.

11. The Department made four sequential determinations of

incompleteness. At no time did Florida Rock ever amend its

application or submit any supplemental material.

12. On December 22, 1992, Citrus County's Board of County

Commissioners adopted Ordinance 92-A73, to change the designation

of the subject real property on the Comprehensive Plan from

"extractive" to "rural residential." The ordinance does not

recite any retroactive effect. No moratorium on development

orders was imposed.

13. Mining operations are prohibited on real property

designated as "rural residential."

14. On December 28, 1992, th e Department made the

determination of incompleteness which gave rise to this instant

proceeding.

15. Florida Rock has not affirmatively plead and has not

proven that the Department made any of its incompleteness

determinations arbitrarily, capriciously, discriminatorily, in

bad faith or solely for purposes of delaying the process of a

technical review on the merits of the project. In the absence of

any formal allegation and affirmative proof, no improper motive

or improper purpose by the Department can be found. 2

16. The December 28, 1992, determination of incompleteness

noted, in the following terms, the refusal of the applicant to

supply certain assurances:

1. The applicant is exempt from Section 4344

of the LDC only in regards to the bonafide

[sic] agricultural or forestry purposes.

Commercial forestry involves the harvesting

or marketable timber not the wholesale

clearing of all vegetation. Therefore, the

impact on protected trees as defined by

Section 4342.A and 4344.B needs to be

addressed as it regards compliance with

Section 4344 of the LDC. The application

needs to reflect how this will be

accomplished. Contrary to your statement,

this item was previously referenced as

Item 11 in my letter of May 29, 1992. While

vegetative removal of unprotected trees as

defined in Section 4343.A.6. of the LDC is

acceptable, the issue of protected trees as

defined in Section 4344.B of the LDC is still

unaddressed in your application submittal.

2. The submitted site plan indicates a

setback of less than the 3000 feet from

residentially committed areas as required by

Section 4525.A.8.1 and 4531.E.1. of the LDC

regarding expansion of existing mines.

Interpretation of the LDC is addressed in

Section 1410 of the LDC and so the attached

interpretation is not applicable. Please

revise your site plan to reflect this set

back or resubmit your application after

vesting pursuant to Section 3160 through 3163

of the LDC has been determined.

3. Pursuant to Section 380.06(4)(b)F.S.,

Citrus County believes that Florida Rock

Industries operations within Hernando/Citrus

Counties may exceed DRI threshold.

Therefore, please provide a letter from DCA

resolving this matter. In regard to your

position that DCA has not formally requested

a binding letter, please note that the above

referenced citation specifies the state land

planning agency or local government with

jurisdiction over the land on which a

development is proposed may require a

developer to obtain a binding letter. Based

on information made available to this

Department, we believe a determination is

called for.

4. In regards to the requested items 23

through 34 of my letter of May 29, 1992,

please be advised that Section 4659.F. of the

LDC requires proof of compliance with all

applicable Citrus County regulations and

policies. This includes the Comprehensive

Plan (C.O. 89-04) and its amendments. The

information requested is to assure that the

proposed development will be in compliance

with the Comprehensive Plan.

17. None of the reasons listed in the December 28, 1992,

determination of incompleteness specifically stated that Florida

Rock could not qualify for a development order for mining because

its real property had just become designated by the December 22,

1992, ordinance as "rural residential," instead of "extractive."

Indeed, the December 28, 1992, determination of incompleteness

did not mention the ordinance change at all. However, its fourth

paragraph concerns the requirement that an applicant establish

its real property's consistency with the Comprehensive Plan. The

County has taken the position that, without using the terms

"extractive use" or "rural residential," paragraph four

encompasses the change of ordinance as well as all matters

pertaining to the Comprehensive Plan.

18. Under the statutes in effect on December 22, 1992,

Ordinance 92-A73 was not effective until filed with the Secretary

of State. (See the face of the ordinance). The exact date of

its filing was not stipulated, but it was agreed that filing

occurred sometime in December 1992.

19. Under Florida's growth management process, the newly

adopted ordinance also was transmitted to the State of Florida,

Department of Community Affairs, which would then issue a report

before the new ordinance became part of the Citrus County

Comprehensive Plan. 3

20. On January 3, 1993, Florida Rock challenged, pursuant

to Section 163.3184(9), Florida Statutes, the new ordinance as it

progressed through the Florida Department of Community Affairs'

review process.

21. On January 19, 1993, Citrus County's LDDS sent a letter

to Florida Rock, further interpreting its December 28, 1992,

determination of incompleteness. That letter also made no

specific mention of the ordinance amendment and did not amend the

fourth paragraph of the incompleteness determination. It

provided, in pertinent part:

For the record, my letter of December 28,

1992, was not a "Denial" but rather a

determination of incompleteness pursuant

to Section 2222.B.1 of the Land Development

Code. In response to your question of

January 12, 1993, I was not persuaded by your

argument in regards to access by way of

Parcel 22100 lying in Section 36, Township 20

South, Range 19 East, but did recognize the

driveway onto County Road 581.

22. Florida Rock declined to amend its application or

supply the information requested.

23. On January 26, 1993, Florida Rock initiated the instant

administrative appeal of the December 28, 1992, determination of

incompleteness. However, by agreement of Florida Rock and Citrus

County, the appeal was abated until January 13, 1999 (see the

Preliminary Statement), when it was transferred from a local

hearing officer to the Division of Administrative Hearings.

24. Florida Rock's challenge of the ordinance before the

Florida Department of Community Affairs also did not progress in

a timely manner. On February 6, 1998, Florida Rock's challenge

to the new ordinance was dismissed. The effect thereof is that

the Florida Department of Community Affairs has found, and

entered a Final Order pronouncing, Citrus County Ordinance 92-A73

to be in compliance with Chapter 163, Florida Statutes,

pertaining to Florida's Local Government Comprehensive Planning

and Land Development Act. That Final Order, as final agency

action, was not appealed.

25. By any interpretation, Citrus County's Comprehensive

Plan, embracing the new ordinance's land use designation of

Florida Rock's property as "rural residential" has been in effect

since February 1998, as have been coordinated zoning, FLUM, and

LDC atlas maps.

26. Since D ecember 22, 1992, the ordinance has designated

Florida Rock's proposed site as "rural residential," which

precludes the proposed mining operation.

27. Since February 1998, the Comprehensive Plan, FLUM, and

LDC atlas maps have all embraced, and currently all of them now

embrace, the ordinance, and all of them prohibit mining or

"extractive use" of the real property in issue.

CONCLUSIONS OF LAW

28. The Division of Administrative Hearings has

jurisdiction of this cause, pursuant to the Citrus County Land

Development Code and Citrus County's contract with the Division

of Administrative Hearings.

29. Under this arrangement and pursuant to LDC Sections

2500G. and 2500H., jurisdiction of the Administrative Law Judge

is appellate in nature and must be exercised in accordance with

the rules set forth therein. Under Section 2500G., the standard

of review to be applied is,

2. The Hearing Officer [Administrative Law

Judge] 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 decision-

maker 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 [e.g. the December 28,

1992 determination of incompleteness]

(Emphasis supplied.)

30. Herein, we do not have an appeal of an order granting

or denying Florida Rock's development order application following

full processing by the County LDDS. Rather, it is an appeal of

an (in)completeness determination.

31. Florida Rock asserts that if there is an appellate

finding, on the merits, that its application is complete, then,

because the application must have been complete upon submittal

before December 22, 1992, (the date the ordinance was enacted),

the application must be returned to the Citrus County LDDS for

processing and review under the ordinances, maps, and

Comprehensive Plan as they existed with the "extractive" use

designation before the ordinance was enacted.

32. As a factual corollary to the foregoing legal theme,

Florida Rock asserts that in the normal course of events, if

Citrus County had deemed its application "complete" when it was

submitted on May 20, 1992, or "complete" even on December 28,

1992, its application would have resulted in a favorable

development order being issued within 30 days, i.e., before the

passage of the ordinance/plan amendment on December 22, 1992, or

at least prior to the date that the Comprehensive Plan and FLUM

simultaneously restricted the site to "rural residential" use.

33. However, Florida Rock's prognosis of rapid and certain

approval of its application is speculative.

34. LCD Sections 2222 C.-I., set out the Department's

review procedure after a determination of completeness, as

follows:

C. The reviewing officer shall transmit one

copy of the application, together with

supporting documentation, to each member of

the TRT, who shall have 10 working days to

complete review of the application.

D. The reviewing officer shall schedule

consideration of the application and

establish the response date for the TRT.

E. If the application requires consideration

by the PDRB or by the BCC, the reviewing

officer shall indicate the tentative meeting

dates at which the application will be

considered by each body following

consideration and recommendation by the

Technical Review Team.

F. If an application requires a public

hearing and notice, the reviewing officer

shall insure that the applicant complies with

public notice requirements of Section 2600 of

this LDC.

G. Recommendations and decisions rendered by

each reviewing agency shall be made in

writing and based upon the application,

supporting documentation, compliance with

standards and requirements of this LDC,

comments from reviewers, and approvals

required by other agencies. Written

recommendations shall be provided to the

reviewing officer in writing or via

electronic means by the end of the response

date. Failure to reply within the

established review period may constitute

grounds for acceptance in lieu of the missing

technical review(s) as determined by the

Director of Department of Development

Services or designee.

H. Applications shall be approved, approved

with conditions, or denied by the reviewing

agency. Notice of the decisions shall be

provided to the applicant within five working

days following the established response date.

I. Development orders (final site plan or

final plat) shall not be issued until

specified conditions have been satisfied.

Approval with conditions of preliminary plats

or final site plans shall expire 180 days

from the date the applicant has been notified

of the approval with conditions by the

Department of Development Services.

35. Considering that the determination of incompleteness

( se e Findings of Fact 16 and 21) appears to list other

deficiencies besides just Comprehensive Plan problems and that

the LDC calls for a technical review to be completed by each

member of the technical review team within ten days of a

determination of completeness, possibly to be followed by a

series of committee meetings and public hearings, there is no

certainty that Florida Rock would have successfully negotiated

the next stages for approval of its project before the newly-

adopted ordinance was embraced by the Comprehensive Plan and

FLUM. Certainly, the delay before the Department of Community

Affairs which was created by Florida Rock's delay in prosecution

of its appeal of the ordinance is no indication of how fast that

agency and the growth management process could have moved.

36. No bad faith or intentional delay by the County's LDDS

has been plead or demonstrated, but as part of its appeal on the

merits, Florida Rock contends that the requirements of the fourth

paragraph of the December 28, 1992, determination of

incompleteness were invalid and were never applicable to its

application because its application should have been reviewed

under Chapter 2, instead of under Chapter 4, of the LDC.

However, even in the light most favorable to Florida Rock, the

foregoing dispute amounts to a good faith dispute with the

Department about the meaning, interpretation, or application of

the County's LDC, not bad faith by the County in processing

Florida Rock's application. The Department's interpretation of

its own County Code is entitled to great weight, and appellate

review under either LDC section would still require that the

applicant's site plan meet zoning ordinances, CLUP, and FLUM at

the time of the final approval of the development order.

Assuming, arguendo , but not pre-judging, 4 that Florida Rock can

establish the completeness of its application in this instant

appellate proceeding, any technical review would have to begin

more than a year after all parts of the growth management scheme

have been in sync.

37. Citrus County's Motion to Dismiss alleges that,

regardless of whether or not Florida Rock can establish that its

application was "complete" before December 22, 1992, the instant

appeal of the December 28, 1992, determination of incompleteness

should be dismissed as moot, because Citrus County cannot now

grant Florida Rock's application. Citrus County reasons that

Section 163.3194(1), Florida Statutes, now prohibits such

approval, and that the application's 1992 site plan is not

consistent with the most recent and current Comprehensive Plan.

38. The County relies on Sections 163.3161(5) and

163.3194(1), Florida Statutes, which provide,

Section 163.3161(5)

It is the intent of this act that adopted

comprehensive plans shall have the legal

status set out in this act and that no public

or private development shall be permitted

except in conformity with comprehensive

plans, or elements or portions thereof,

prepared and adopted in conformity with this

act.

Section 163.3194(1)(a)

After a comprehensive plan , or element or

portion thereof, has been adopted in

conformity with this act, all development

undertaken by, and all actions taken in

regard to development orders by, governmental

agencies in regard to land covered by such

plan or element, shall be consistent with

such plan or element as adopted . (Emphasis

supplied).

39. Florida courts have described the doctrine of mootness

as follows:

The case becomes moot, for purposes of

appeal, where, by a change of circumstances

prior to the appellate decision, an

intervening event makes its impossible for

the court to grant a party any effectual

relief.

It is the function of a judicial tribunal to

decide actual controversies by a Judgment

which can be carried into effect, and not to

give opinions on moot questions, or to

declare principles or rules of law which

cannot effect the matter in issue.

Montgomery v. Department of Health and Rehabilitative Services ,

468 So. 2d 1014 (Fla. 1st DCA 1985); Lund v. Department of

Health , 708 So. 2d 645 (Fla. 1st DCA 1998). Also, a moot cause

should be dismissed. Godwin v. State , 593 So. 2d 211 (Fla.

1992).

40. For the reasons set out below, the Motion to Dismiss is

well-taken.

41. LDC Section 2222 B.2, provides specific guidelines as

to what occurs when a development order application is received

for processing.

B. Within three working days from the date

of submission, the reviewing officer (a

representative of the Department of

Development Services) shall determine whether

an application is complete.

1. If the application is incomplete

(required items are not provided) or

otherwise does not conform to the submission

requirements of this Code, the applicant

shall be notified in writing. The

application shall not be processed and shall

be returned to the applicant for revision and

resubmission.

2. If the application is complete and in

conformance with the submission requirements

of this Code, the application shall be

accepted. The date of acceptance shall be

indicated in the application form and the

applicant notified. The date of acceptance

is the official date of application .

(Emphasis supplied).

42. Such a provision is subject to abuse and some planning

entities may consider that public policy militates against it,

but Citrus County has affirmatively enacted such provision, which

has been in effect since 1990. 5 Under it, the Department never

accepted Florida Rock's application as being complete. It has

repeatedly returned the application for resubmission with the

additional required information. Therefore, under the clear

meaning of LDC Section 2222 B.2., Florida Rock's application's

status is as if it had never been submitted. Thus, even if

Florida Rock's application were now deemed complete by a

determination on the merits in this proceeding, the date of its

"acceptance" by the County would still be long after the

effective date that all parts of the growth management process

designating the property "rural residential" were fully in

effect.

43. Even if Florida Rock's application were deemed complete

in this quasi-appellate proceeding, the application would still

have to go through the Department's arduous technical review

stage, and today it could never be approved. At the present

time, Sections 163.3161(5) and 163.3194(1)(a), Florida Statutes,

prohibit Citrus County from approving development orders that are

not in compliance with its current Comprehensive Plan. Moreover,

Sections 2221 and 2221 E. of the LDC, require submittal of an

approved preliminary site plan, pursuant to Section 2230.

Florida Rock's May 20, 1992, site plan is now out of sync with

the County's Comprehensive Plan designation of "rural

residential" use. See Sections 2232 B. 2. e. and g. of the LDC.

44. The court in Machado v. Musgrove , 519 So. 2d 629 (Fla.

3rd DCA 1987), interpreted this statutory consistency

requirement. It held that an applicant has the burden of showing

"by competent substantial evidence that the proposed development

conformed strictly to the Comprehensive Plan and its elements."

The decision has been cited with approval by the Florida Supreme

Court in Board of County Commissioners of Brevard County v.

Snyder , 627 So. 2d 469 (Fla. 1993) and Martin County v. Yusem ,

690 So. 2d 1288 (Fla. 1997), which noted that the Machado court

had found "that a local land use plan is like a constitution for

all future development within the governmental boundary."

45. I have considered Florida Rock's reliance on Florida

cases, City of Margate v. Amoco Oil Company , 546 So. 2d 1091

(Fla. 4th DCA 1989) and Southern Cooperative Development Fund v.

Driggers , 696 F.2d 1347 (11th Circuit 1983). I conclude that the

better line of cases establish the general rule that the law in

effect at the time a final judgment is entered, not the law in

effect when an application is filed, controls disposition of an

application, unless there is a finding of bad faith, unreasonable

refusal, or delay. See Town of Longboat Key v. Lands End Ltd ,

433 So. 2d 574 (Fla. 2d DCA 1983); City of Boynton Beach v.

Carroll , 272 So. 2d 171 (Fla. 4th DCA 1973); Dade County v.

Jason , 278 So. 2d 311 (Fla. 3d DCA 1973); City of Coral Gables v.

Sakolsky , 215 So. 2d 329 (Fla. 3d DCA 1968); and Davidson v. City

of Coral Gables , 119 So. 2d 704 (Fla. 3rd DCA 1960).

46. Unlike the scenarios in the cases relied upon by

Florida Rock, there is no affirmative allegation or proof herein

that Citrus County acted arbitrarily, capriciously,

discriminatorily, or in bad faith.

47. Florida Rock's Florida cases do not apply here, because

Citrus County has not found nor admitted that Florida Rock's

application is complete; Florida Rock's application was not fully

processed as were the applications in Amoco Oil and Driggers ;

there is no evidence of bad faith on the part of Citrus County;

the County did not unilaterally delay this appeal, but rather the

parties, by agreement, allowed it to languish without disposition

for six years, indeed a year beyond the time when all parts of

the Florida growth management arrangement were in place; and

finally, unlike the situation in Driggers , there is no provision

in Citrus County's Comprehensive Plan which provides that the

Plan Amendment is not applicable to previously-filed

applications. The exception in Davidson does not support the

holdings in Amoco Oil and Driggers .

48. Florida Rock's reliance on Gardens Country Club, Inc.,

v. Palm Beach County , 488 So. 2d 590 (Fla. 4th DCA 1991), is

misplaced. The case is distinguishable for most of the foregoing

reasons. Additionally, Section 163.3197, Florida Statutes, is

inapplicable to the instant situation, because Citrus County's

Comprehensive Plan, with the designation "extractive," which was

in effect when Florida Rock submitted its application, was

adopted in 1989/1990. Thus, we are not faced here with a

situation "prior to the adoption of a revised plan [in accordance

with the procedures required by State law] pursuant to Section

163.3167(2)." Therefore, Section 163.3197 does not apply.

49. In Smith v. City of Clearwater , 383 So. 2d 681 (Fla. 2d

DCA 1980), pet. dismissed, 403 So. 2d 407 (Fla. 1981), the court

held that the applicant was entitled to obtain a building permit

within the provisions of existing zoning so long as a rezoning

ordinance precluding the intended use was not pending when a

proper application was made; that to be "pending," the change

need only to be actively pursued by the appropriate

administrative department and the council be aware that such

efforts are going forward; and that to be "pending," it is not

essential for the applicant to be advised of the pending

rezoning. Herein, Florida Rock had actual notice on April 10,

1992, that the designation change was in the amendment process.

This was three weeks before Florida Rock submitted its

application on May 20, 1992. After the ordinance was passed,

Florida Rock had the opportunity both to take the instant appeal

of the incompleteness determination and to appeal the designation

change in the ordinance itself. Neither of these "bites at the

apple" were ardently prosecuted, and now all aspects of the new

Comprehensive Plan are fully in effect. Smith gives Florida

Rock's position no support.

50. To the degree Section 163.3194(1)(b), Florida Statutes,

pertaining to what happens while parts of the Plan are not in

sync, may ever have been applicable, it is now inapplicable.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law,

it is

RECOMMENDED that Citrus County Department of Land

Development Services enter a final order dismissing the appeal

for mootness.

DONE AND ENTERED this 4th day of June, 1999, in Tallahassee,

Leon County, Florida.

___________________________________

ELLA JANE P. DAVIS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 4th day of June, 1999.

ENDNOTES

1 / In 1990, concurrent with its 1989/1990 Comprehensive Plan

amendments, Citrus County also adopted its LDC with a specific

provision, Section 2222B.2, which may have been intended to

prevent such "races" between developers and county planners.

See Finding of Fact 4, and the Conclusions of Law, infra .

2 / In fairness to Florida Rock, is must be noted that the

"appellate process" of this instant cause does not lend itself to

any formal legal discovery process by which facts of bad faith,

etc., could be fully developed. However, from the May 20, 1992

application submittal, through the subsequent correspondence and

argumentation on the sequential incompleteness determinations,

and even after the December 28, 1992, incompleteness

determination and January 19, 1993, letter ( see Finding of Fact

21, infra .) no bad faith or unfair dealing has come to light.

3 / The County argued that under the statutes in effect on

December 22, 1992, amendments to a Comprehensive Plan occurred on

the effective date of the ordinance and that it was not until

sometime in 1993 that the Legislature made the amendments

effective only after review by the State of Florida Department of

Community Affairs (DCA). Florida Rock argued that under the

review system of the DCA, no change in the County's Comprehensive

Plan was pending when the December 28, 1992, determination was

made. No legislative history on these assertions was provided by

either party. However, it is clear both that the County

submitted the ordinance/plan amendment to the DCA in December

1992 and that it began to treat it as already in effect in April

or May of 1993.

4 / Due to the severely limited standard of proof in these

proceedings,(see Conclusion of Law 29), possibly the only test on

the merits of completeness would be to determine whether the

December 28, 1992, determination of incompleteness requested

additional information that the Department, in its expertise,

could reasonably consider necessary to demonstrate that Florida

Rock's application was ready to go before the technical review

team.

5 / See above, Endnote 1 on the purpose of this LDC section, and

Finding of Fact 15 and Conclusion of Law 36 on the absence of

abuse in this case.

COPIES FURNISHED:

Clark Stillwell, Esquire

Brannen, Stillwell & Perrin

Post Office Box 250

Inverness, Florida 34451-0250

Thomas Pelham, Esquire

Apgar & Pelham

909 East Park Avenue

Tallahassee, Florida 32301

Richard Wm. Wesch, Esquire

New Lecanto Government Building

3600 West Sovereign Path, Room 270

Lecanto, Florida 34461

Gary W. Maidhof, Director

Citrus County Department of

Development Services

Suite 109

3600 West Sovereign Path

Lecanto, Florida 34461-8070

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days from the date of this Recommended Order. Any exceptions to

this Recommended Order should be filed with the agency that will

issue the final order in this case.