Carillon Community Residential v. Seminole County

45 So. 3d 7, 2010 Fla. App. LEXIS 9757, 2010 WL 2628692
CourtDistrict Court of Appeal of Florida
DecidedJuly 2, 2010
DocketNo. 5D09-3789
StatusPublished
Cited by13 cases

This text of 45 So. 3d 7 (Carillon Community Residential v. Seminole County) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Carillon Community Residential v. Seminole County, 45 So. 3d 7, 2010 Fla. App. LEXIS 9757, 2010 WL 2628692 (Fla. Ct. App. 2010).

Opinion

PER CURIAM.

Petitioners, Carillon Community Residential Association, Inc., and Ken Hofer, its President, seek second-tier certiorari review of a circuit court order upholding the approval by the Seminole County Board of County Commissioners (“BCC”) of an amendment to the Carillon Planned Unit Development (“Carillon PUD”). The amendment allows a mixed-use development, including a four-story, 600 bed University of Central Florida student housing complex, to be built on two parcels of land adjacent to Petitioners’ subdivision. Based upon our limited scope of review, we conclude that the circuit court afforded Petitioners procedural due process and did not depart from the essential requirements of law. State Farm Fla. Ins. Co. v. Lorenzo, 969 So.2d 393 (Fla. 5th DCA 2007). Accordingly, we deny their petition.

We write further to address one issue which merits discussion, which is whether Petitioners were denied due process when the BCC denied their request to cross-examine witnesses at the quasi-judicial hearing in which the amendment was approved. The “core” of due process is the right to notice and an opportunity to be heard. LaChance v. Erickson, 522 U.S. 262, 118 S.Ct. 753, 139 L.Ed.2d 695 (1998); see also Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). When assessing whether or not a violation of due process has occurred “the court must first decide whether the complaining party has been deprived of a constitutionally protected liberty or property interest. Absent such a deprivation there can be no denial of due process.” Economic Dev. Corp. of Dade County, Inc. v. Stierheim, 782 F.2d 952, 953-54 (11th Cir.1986).

Due process is a flexible concept and requires only that the proceeding be “essentially fair.” See Gilbert v. Homar, 520 U.S. 924, 117 S.Ct. 1807, 138 L.Ed.2d 120 (1997) (recognizing that “it is now well-established that ‘due process unlike some legal rules is not a technical conception with a fixed content unrelated to time, place and circumstances’”) (quoting Cafeteria and Restaurant Workers Union, Local 473, AFL-CIO v. McElroy, 367 U.S. 886, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961)). The extent of procedural due process protection varies with the character of the interest and nature of the proceeding involved. There is, therefore, no single unchanging test which may be applied to determine whether the requirements of procedural due process have been met. Courts instead consider the facts of the particular case to determine whether the parties have been accorded that which the state and federal constitutions demand. Hadley, 411 So.2d at 187; see also, Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985) (citing Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971) (“[t]he formality and procedural requisites for the hearing can vary, depending upon the importance of the interests involved and the nature of the subsequent proceedings.”)).

The United States Supreme Court has held that there are three distinct factors to consider in the analysis of whether the due process accorded in any proceeding was constitutionally sufficient: 1) the private interest that will be affected by the official action; 2) the risk of an erroneous deprivation of such interest through the procedures used; and 3) the probable value, if any, of additional or substitute procedural safeguards. Mathews v. Eldridge, 424 U.S. 319, 334-35, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). The government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail should also be considered. Id.

When applying these general due process principles to the specific context of [10]*10quasi-judicial administrative hearings, it is important to distinguish between parties and participants. The extent of procedural due process afforded to a party in a quasi-judicial hearing is not as great as that afforded to a party in a full judicial hearing. Seminole Entertainment, Inc. v. City of Casselberry, 811 So.2d 693, 696 (Fla. 5th DCA 2001) (“Seminole I”); see also Hadley v. Department of Administration., 411 So.2d 184, 187 (Fla.1982). Consequently, such hearings are not controlled by strict rules of evidence and procedure. Seminole I at 696.

Nevertheless,, a party to a quasi-judicial hearing, by virtue of its direct interest that will be affected by official action, “must be able to present evidence, cross-examine witnesses, and be informed of all the facts upon which the commission acts.” Kupke v. Orange County, 838 So.2d 598, 599 (Fla. 5th DCA 2003) (citing Lee County v. Sunbelt Equities, II, Ltd. Partnership, 619 So.2d 996 (Fla. 2d DCA 1993)). For example, in Kupke, this court held that a farmer who had been cited for operating an unauthorized junkyard and was facing daily fines, was entitled to present witnesses in his defense as part of his basic right to be heard before a property right was taken from him. See also Seminole I (holding that party facing business license revocation was denied right to cross-examine witnesses against it).

Oftentimes, however, such quasi-judicial hearings are attended by more than just the parties. They are open to the public. In the case of rezoning hearings, neighboring landowners may attend and want to be heard on a proposed zoning change to a nearby property. Our court has previously stated that “[a] participant in a quasi-judicial proceeding is clearly entitled to some measure of due process ... The issue of what process is due depends on the function of the proceeding as well as the nature of the interests affected.” Water Servs. Corp. v. Robinson, 856 So.2d 1035, 1039 (Fla. 5th DCA 2003).

Petitioners incorrectly assert that Florida law requires that all participants in quasi-judicial proceedings be allowed to cross-examine witnesses. Florida law has no such requirement. In support of their assertion, Petitioners cite several cases appearing to require cross-examination in quasi-judicial proceedings. However, a close reading of these cases reveals that they cannot support such a broad proposition.

First, many cases asserted by Petitioners as broadly affording the right of cross-examination in quasi-judicial proceedings involved parties, not participants. Thus, any effort to extend application of such due process protections to participants is beyond the scope of the facts in those cases. See, e.g., Kupke (farmer facing fines for unauthorized use of property); Seminole I (business licensee facing license revocation); Sunbelt Equities (property owner applying for rezoning); Bd. of County Comm’rs of Hillsborough County v. Casa Development, Ltd., 332 So.2d 651 (Fla. 2d DCA 1976) (developer applying for water and sewer service); Harris v. Goff,

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Bluebook (online)
45 So. 3d 7, 2010 Fla. App. LEXIS 9757, 2010 WL 2628692, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carillon-community-residential-v-seminole-county-fladistctapp-2010.