Citrus County seeks certiorari review of an order of the circuit court in a zoning case. The circuit court granted certiorari review of the Citrus County Department of Development Services' order which granted in part and denied in part Florida Rock Industries, Inc.'s vested rights application under the Citrus County Land Development Code. The circuit court quashed the order rendered by the Department, and directed that on remand the vested rights application be granted in full. We have jurisdiction,
The defects in the circuit court's decision under review are basically three-fold: 1) it imposed on the Department a duty to accept a hearing officer's opinion in an administrative review process provided for by the Code, which duty or obligation is not supported by the Code or by the interpretation of the Department; 2) it buttressed its opinion with fact findings consistent with the common law of equitable estoppel, which was not a viable issue in these proceedings; and 3) it erroneously determined Florida Rock had been deprived of procedural due process because the county attorney acted in the dual role of prosecutor and advisor to the Department.
The facts in this case are complex, but a brief summary is necessary to explain this decision. Florida Rock owns and operates a rock processing plant in Brooksville, in Hernando County. Florida Rock has used the plant since 1955 to serve its mining operations in both Hernando and Citrus Counties. In Citrus County, Florida Rock has mining leases on four sites; Montague, Landrum, Storey and Rose Hill. The fee is owned by the successor of General Portland, Inc., who in 1978, obtained a ruling affirmed by this court,
Apparently because Florida Rock anticipated Citrus County might change the zoning on the mining sites to make mining operations difficult or impossible, it applied for a determination of vested rights pursuant to section 3160 of the Land Development Code. That section allows an applicant to preserve development rights, provided it can establish various conditions. Section 3160B. requires that the applicant establish that its development expectations were reasonable and final when they were formulated; that the development is investment backed to a substantial degree; and that failure to allow the development will deprive the applicant of a reasonable return on its investment, exclusive of various specified costs and expenses. Section 3160C. presumes development rights are vested if they were previously granted by prior development orders.
Pursuant to Code, an application for vested rights is filed with the County — specifically, the Department of Development Services.
If the applicant is dissatisfied with the decision of the Department, it may appeal to a hearing officer.
In this case, the Department granted Florida Rock's vested rights application only for the Montague and Landrum tracts, and denied it for the Storey and Rose Hill sites. The Department made numerous findings of fact in denying vested rights for Storey and Rose Hill. In summary, the Department found that all four sites are separate properties, treated as such by Florida Rock's lease with General Portland and others (DEP permits, etc.), and that they are not contiguous but are separated by roads.
This decision was appealed to a hearing officer under the Code.
The Department reconsidered the matter as required by the Code. Florida Rock sought to have the county attorney and any staff or assistant counsel removed from the function of advising the Department because the county attorney had signed off on the original decision of the Department and because a county attorney had defended the Department's decision before the hearing officer. The record, however, is not clear as to whether the same attorney acted in all of these capacities.
The Department affirmed its original decision in all regards. It rejected the hearing officer's recommendation because it said the hearing officer had reweighed the evidence presented and substituted his judgment for that of the Department. It disagreed that Florida Rock had ever obtained development orders as required by the Code. The special permit that was in the record pertained only to the original special exception application, which was denied and had resulted in the litigation culminating in the Fifth District Court of Appeal's decision. It rejected the hearing officer's conclusion that the haul easement was a "development order" under the Code. At best, the Department concluded, the easement related only to the Landrum and Montague tracts.
The Department also reaffirmed its original conclusion, based on its fact findings, that the four sites are separate and should be considered individually. It maintained the view that the substantial investment expenses put forth by Florida Rock on its mining operations in Citrus County pertained primarily to the Landrum and Montague sites. Buttressing that finding, it pointed out
At this point, the administrative process was complete and final under the Code.
The circuit court quashed the Department's decision, in part, and directed that on remand it must grant Florida Rock's vested rights application for all four sites. The major source of the difficulty in unraveling the various levels of standards of review in this case is the Code's "appeal" process to a hearing officer. The circuit court interpreted the Code to require the Department, on reconsideration, to apply an appellate standard of review to the hearing officer's decision. In other words, the court concluded that the Department could not reject the hearing officer's findings and conclusions, if reasonable people could have reached the same conclusion and if the findings were supported by substantial, competent evidence. The circuit court judge said the Department could not re-evaluate testimony or evidence on reconsideration. However, as the County points out, there is no support for this interpretation of the Code. The Code limits the hearing officer to a review of the record submitted to the Department, not a new evidentiary hearing. And the hearing officer is only supposed to rule on questions of law.
Most importantly, the Code does not say or infer that on reconsideration the Department is bound in any way by the hearing officer's recommendations.
Having made that erroneous decision, the circuit court made new findings of fact, based largely on the findings of the hearing officer, plus other new ones, the source of
The circuit court also buttressed its decision with findings that might be appropriate in the declaratory action, which has yet to be heard, but which clearly have nothing to do with the administrative proceeding and its review.
The circuit court also determined that Florida Rock had not been accorded procedural due process before the Department because the county attorney provided legal advice to the Department during the initial phase of the dispute and then litigated for the county before the hearing officer, and finally advised the Department on reconsideration. It concluded one attorney could not serve both as advisor to an administrative body and an advocate. However, beyond these general statements, the circuit court did not discuss the facts concerning the role played by the county attorney at the various stages of the case, nor does this record show which attorney played what role and when.
In Cherry Communications, Inc. v. Deason, 652 So.2d 803 (Fla. 1995), the Florida Supreme Court held that a license holder's due process rights were violated when the Public Service Commission allowed its staff attorney, who had prosecuted the license revocation action, to also serve as a legal advisor to the Commission during its post-hearing
However, Cherry is distinguishable from this case. The assistant county attorney, Wesch, signed off on the Department's original decision, as was required by the Code, but it is a far leap to say he "prosecuted" the case before the Department, at that point. Also, there is no evidence in the record that Wesch "prosecuted" the case before the hearing officer. As noted above, we agree with the County that this step in the case was primarily advisory and not binding on the Department. Finally, there is no evidence in the record that Wesch or any other county attorney played any role in the Department's final decision after reconsideration. If the circuit court thought the entire County Attorney's Office was barred from advising the Department on reconsideration, nothing in Cherry supports such a ruling. Cherry holds only that a different staff attorney should have performed the different roles.
Agencies do sometimes have dual rules in administrative proceedings. There is no single test to be applied to determine if the requirements of procedural due process have been met. See Hadley v. Department of Administration, 411 So.2d 184 (Fla. 1982); Varney v. Florida Real Estate Commission, 515 So.2d 383 (Fla. 5th DCA 1987). However, in this case, the record does not support the conclusions that the same county attorney both advocated for the Department and advised the Department during its reconsideration.
For the reasons set forth above, we conclude that the circuit court departed from the essential requirements of law in quashing the decision of the Department. Haines City Community Development v. Heggs, 658 So.2d 523, 530 (Fla. 1995); City of Deerfield Beach v. Vaillant, 419 So.2d 624 (Fla. 1982). Accordingly, we grant the petition and quash the decision under review.
Petition for Writ of Certiorari GRANTED.
DAUKSCH and ANTOON, JJ., concur.