09-003488RP Florida Chamber Of Commerce, Inc., Florida Land Council, Inc., And Florida Farm Bureau Federation, Florida Not-For-Profit Corporations vs. Department Of Community Affairs Status: Closed DOAH Final Order on Monday, September 14, 2009.

Summary: Proposed rules 9J-5.026 and 9J-11.023 and existing Rule 9J-5.003(80) are not invalid exercises of delegated legislative authority.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA CHAMBER OF COMMERCE, )

INC.; FLORIDA LAND COUNCIL, )

INC.; and FLORIDA FARM BUREAU )

FEDERATION, )

)

Petitioners, )

)

vs. ) Case No. 09-3488RP

)

DEPARTMENT OF COMMUNITY )

AFFAIRS, )

)

Respondent. )

_______________________________ )

FINAL ORDER

Pursuant to notice, this matter was heard before the

Division of Administrative Hearings by its assigned

Administrative Law Judge, Donald R. Alexander, on July 14, 2009,

in Tallahassee, Florida.

APPEARANCES

For Petitioners: Gary K. Hunter, Jr., Esquire

Sarah Meyer Doar, Esquire

Hopping Green & Sams, P.A.

Post Office Box 6526

Tallahassee, Florida 32314-6526

For Respondent: Shaw P. Stiller, General Counsel

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399-2100

STATEMENT OF THE ISSUE

The issue is whether proposed rules 9J-5.026(3)(d), (7)(b),

11.023(2), (4), and (5), and existing Florida Administrative

Code Rule 9J-5.003(80) are invalid exercises of delegated

legislative authority for the reasons alleged in the Petition

for Administrative Hearing to Challenge Proposed Amendments to

Chapters 9J-5 and 9J-11, F.A.C. and to Challenge Existing Rule

9J-5.003(80) (Petition). 1

PRELIMINARY STATEMENT

On June 24, 2009, Petitioners, Florida Chamber of Commerce,

Inc. (Florida Chamber), Florida Land Council, Inc. (Land

Council), and Florida Farm Bureau Federation (Farm Bureau),

filed their Petition alleging that substantial parts of proposed

rules 9J-5.026 and 9J-11.023 and existing Rule 9J-5.003(80) were

invalid exercises of delegated legislative authority, as defined

in Section 120.52(8), Florida Statutes. 2 In general, proposed

rule 9J-5.026 establishes the substantive requirements for

designating a Rural Land Stewardship Area (RLSA) and adopting

related amendments in comprehensive plans. Proposed rule 9J-

11.023 implements the procedural requirements for establishing

RLSAs. Existing Rule 9J-5.003(80), which became effective in

1994, defines the term "new town."

On June 25, 2009, Robert S. Cohen, Chief Judge of the

Division of Administrative Hearings, determined that the

Petition was in compliance with the general requirements of

Section 120.56(1)(b), Florida Statutes, and assigned the case to

Administrative Law Judge Donald R. Alexander.

By Notice of Hearing dated June 26, 2009, a final hearing

was scheduled on July 14, 2009, in Tallahassee, Florida. A

Joint Pre-Hearing Stipulation was filed by the parties on

July 13, 2009.

At the final hearing, Petitioners presented the testimony

of Ernest A. Cox, III, Esquire, president of Family Lands

Remembered, LLC, and accepted as an expert, and Dr. J. Thomas

Beck, a planner who was accepted as an expert. Also, they

offered Petitioners' Exhibits 1, 2, 4, 5, and 7-10. All were

received in evidence except Exhibits 4 and 5, on which a ruling

was reserved. The objection to those exhibits is sustained.

The Department presented the testimony of Thomas G. Pelham,

Secretary of the Department and accepted as an expert, and

Robert A. Pennock, Department Strategic Planning Coordinator and

accepted as an expert. Also, it offered Department Exhibits 1

and 2, which were received in evidence. The parties further

offered Joint Exhibits 1-25, which were received in evidence.

Finally, the parties' request for official recognition of Part

II, Chapter 163, Florida Statutes, Section 380.06, Florida

Statutes, Florida Administrative Code Rule Chapter 9J-5, and

Rule 9J-2.021 was granted.

The Transcript of the hearing (two volumes) was filed on

July 31, 2009. By agreement of the parties, the time for filing

proposed findings of fact and conclusions of law was extended to

August 14, 2009. The same were timely filed and have been

considered in the preparation of this Final Order.

FINDINGS OF FACT

Based on the evidence presented by the parties, the

following findings are made:

A. The Parties

1. Petitioners are not-for-profit organizations whose

members own real property throughout the State. A substantial

number of their respective members own real property which could

be amassed as one or more areas in the RLSA program. Some

members of these organizations have taken steps in an effort to

have their land designated as an RLSA. On behalf of their

respective members, each Petitioner has a substantial interest

in public policy relating to land use planning, growth

management, and the protection of agricultural, rural, and

conservation lands. Respondent, Department of Community Affairs

(Department), has stipulated to the facts necessary to establish

standing for each Petitioner.

2. The Department is the state agency charged with

implementing the review provisions of the Local Government

Planning and Land Development Regulation Act codified in

Sections 163.3164, et seq. , Florida Statutes.

B. The Original Statute Creating the RLSA Program

3. Because of the complexity of the subject matter, a

recitation of the RLSA program's history is appropriate. In

2001, the Legislature enacted Chapter 2001-279, Laws of Florida,

codified as Section 163.3177(11)(d), Florida Statutes, which

created the RLSA pilot program. The law became effective on

July 1, 2001, and stated:

It is the intent of the Legislature that

rural land stewardship areas be used to

further the following broad principles of

rural sustainability: restoration and

maintenance of the economic value of rural

land; control of urban sprawl;

identification and protection of ecosystems,

habitats, and natural resources; promotion

of rural economic activity; maintenance of

the viability of Florida's agriculture

economy; and protection of the character of

the rural areas of Florida.

criteria and substantive requirements of the RLSA program have

been amended several times, the foregoing principles have

remained the same.

4. The statute provides an option, not an exception, under

the State's growth management laws for local governments to

implement innovative planning and development strategies for

large, rural parcels. While having many of the attributes of a

traditional "transfer of development rights" program, the RLSA

planning process provides additional planning and economic

incentives as well as flexibility for the local government to

implement this program. The program was best summarized by

Secretary Pelham at hearing as follows:

The RLSA process is an optional planning

process which local governments may elect to

use in rural and agricultural areas of the

state. Essentially it provides incentives

to landowners to preserve or conserve

environmental and natural resources and

agricultural lands by giving them

stewardship credits that may be assigned to

those lands to be preserved, but which can

be used on other lands through a transfer of

those credits to the receiving areas.

Tr. at 182.

5. The first step in the RLSA planning process is for the

local government to "apply to the Department in writing

requesting consideration for authorization to designate a

[RLSA]." § 163.3177(11)(d)3., Fla. Stat. (2001). Under the

original statute, if the Department chose to authorize a local

government to designate an RLSA, it would do so by written

agreement with the local government. See § 163.3177(11)(d)4.

and (5), Fla. Stat. (2001). Because the original statute was a

pilot program, the Department could authorize only five local

governments to designate RLSAs. See § 163.3177(11)(d)6., Fla.

Stat. (2001).

6. To be eligible for designation as an RLSA under this

pilot program, a parcel of land had to be larger than 50,000

acres but not over 250,000 acres; it had to be designated as

rural or a substantial equivalent on the future land use map

(FLUM); and it had to be located outside the municipal and

established urban growth boundaries. See § 163.3177(11)(d)6.,

Fla. Stat. (2001). For this reason, only counties (and not

cities) were eligible to participate in the program.

7. Once it received Department authorization to designate

an RLSA, the county was to then propose and adopt a plan

amendment designating the RLSA. See § 163.3177(11)(d)6., Fla.

Stat. (2001). This plan amendment was to be subject to full

review under Section 163.3184, Florida Statutes, for a

compliance determination. Also, the plan amendment was required

to specifically address the following:

a. Criteria for the designation of

receiving areas within rural land

stewardship areas in which innovative

planning and development strategies may be

applied. Criteria shall at a minimum

provide for the following adequacy of

suitable land to accommodate development so

as to avoid conflict with environmentally

sensitive areas, resources, and habitats;

compatibility between and transition from

higher density uses to lower intensity rural

uses; the establishment of receiving area

service boundaries which provide for a

separation between receiving areas and other

land uses within the rural land stewardship

area through limitations on the extension of

services; and connection of receiving areas

with the rest of the rural land stewardship

area using rural design and rural road

corridors.

b. Goals, objectives, and policies setting

forth the innovative planning and

development strategies to be applied within

rural land stewardship areas pursuant to the

provisions of this section.

c. A process for the implementation of

innovative planning and development

strategies within the rural land stewardship

area, including those described in this

subsection and s. 9J-5.006(5)(l), Florida

Administrative Code, which provide for a

functional mix of land uses and which are

applied through the adoption by the local

government of zoning and land development

regulations applicable to the rural land

stewardship area.

d. A process which encourages visioning

pursuant to s. 163.3167(11) to ensure that

innovative planning and development

strategies comply with the provisions of

this section.

e. The control of sprawl through the use of

innovative strategies and creative land use

techniques consistent with the provisions of

this subsection and rule 9J-5.006(5)(l),

Florida Administrative Code.

8. Once the plan amendment was in place, the county was

then to implement it through land development regulations.

Under the original statute, the county by ordinance was to

"assign to the [RLSA] a certain number of credits, to be known

as 'transferable rural land use credits' . . . ." These credits

would then be transferred to designated receiving areas "solely

for the purpose of implementing innovative planning and

development strategies and creative land use planning techniques

adopted by the local government pursuant to this section." See

§ 163.3177(11)(d)8.b., Fla. Stat. (2001).

9. Once transferable rural land use credits were

transferred from a parcel, the underlying land uses would be

extinguished, the parcel would be limited to agriculture or

conservation, and the transfer would be memorialized as a

restrictive covenant running with the land. See

§ 163.3177(11)(d)8.k., Fla. Stat. (2001).

10. The Department was granted the authority to implement

this section by rule in the original statute. However, the

Department did not adopt rules.

11. No county applied to participate in this pilot

program.

C. Amendments to the RLSA Statute

12. The Legislature substantially amended the statute in

2004. See Ch. 2004-372, Laws of Fla. Although the program had

no participants as of that time, the Legislature removed the

pilot status of the program and the limitation on the number of

local governments that may be authorized to designate an RLSA.

See § 163.3177(11)(d)1., Fla. Stat. (2004). Although the

requirement for a written agreement between the county and the

Department was deleted, the requirement for the county's

application and Department's authorization prior to the

designation of an RLSA remained. See § 163.3177(11)(d)1. and

4., Fla. Stat. (2004).

13. The minimum acreage for an RLSA was reduced to 10,000

acres and the maximum was removed. § 163.3177(11)(d)4., Fla.

Stat. (2004). The statute also explicitly recognized that RLSAs

14. In 2005, the Legislature again amended the statute in

several respects, one of which was directed to the stewardship

credit methodology. See Ch. 2005-290, Laws of Fla. However,

the statute still requires that the total amount of credits is

to be tied to the "25-year or greater projected population of

the rural land stewardship area."

15. Although the statute was amended again in 2006, those

amendments have no bearing on the issues in this case. See Ch.

2006-220, Laws of Fla.

D. Designating an RLSA Under the Statute

16. Collier County has been frequently mentioned as a

local government with an RLSA program. However, that County's

comprehensive plan provisions regarding rural development were

not adopted under the RLSA statute; rather, they were adopted by

the County in 1999 as conventional plan amendments that were

later approved in 2002 by a final order issued by the

Administration Commission. Collier County's rural planning

program does, however, have some of the same core attributes

found in the RLSA program, including the creation of

transferable land use credits to enable development in

designated receiving areas.

17. The Department closely examined the Collier County

program as part of its "Rural Land Stewardship Area Program 2007

Annual Report to the Legislature" (2007 Annual Report). See

Joint Exhibit 4. See also § 163.3177(11)(d)8., Fla. Stat.

("[t]he department shall report to the Legislature on an annual

basis on the results of implementation of [RLSAs] authorized by

the department"). This examination revealed several substantial

flaws in the program. First, the Collier County program is

extremely complex, with over twenty general attributes that must

be examined for every acre of land assigned stewardship credits.

This would make it difficult and expensive for small rural

counties with limited resources.

18. The Collier County program also assigns the highest

stewardship credits to environmentally sensitive lands and

appreciably lower values to agricultural land. The result is

that development is directed to agricultural areas. For

example, eighty-seven percent of the footprint of one receiving

area that is currently being developed, known as Ave Maria, was

in active agriculture prior to its designation for development.

In this respect, the Collier County system is directing

development to agricultural lands and not protecting and

conserving those lands, which the Department contends

contravenes the principles of rural sustainability.

19. Another major concern with the Collier County program

is the extent and distribution of receiving areas. The Collier

County program does not have any requirements that the receiving

area be clustered, thus allowing for the possibility of

scattered, sprawling receiving areas throughout eastern Collier

County. Also, there appears to be no limit on the footprint of

these receiving areas. The original Collier County program

envisioned development on only nine to ten percent of the entire

area, for a total of approximately 16,800 acres. However, due

to the complexity and "flexibility" within the Collier County

stewardship credit system, "the maximum development footprint

cannot be determined."

20. On September 12, 2006, St. Lucie County adopted plan

amendments under the RLSA statute. Later that year, the

Department reviewed the amendments and found them to be in

compliance.

21. In preparing the 2007 Annual Report, the Department

undertook a detailed analysis of the St. Lucie RLSA amendments.

Even though the amendments had been previously found to be in

compliance, the new analysis revealed several shortcomings in

the amendments, including their failure to discuss, analyze, or

demonstrate how they further the principles of rural

sustainability, a primary focus of the program. Also, the

amendments were not supported by an analysis of land use need.

Instead of projecting population and need, the RLSA adopted an

arbitrary cap of 13,248 dwelling units with "no known planning

basis."

22. The St. Lucie RLSA is similar to the Collier County

program in two respects: it is very complex, and it places no

spacial limits on the footprint of the development area.

23. Due to these shortcomings, the Department has placed

little, if any, reliance on the St. Lucie County RLSA amendments

as an example of proper planning under the RLSA statute. There

is no evidence that any development has occurred under the St.

Lucie program, and its most recent Evaluation and Appraisal

Report dated October 2008 indicated that none may ever occur.

24. In 2007, Highlands and Osceola Counties both applied

for and were granted authorization by the Department to

designate RLSAs. However, both counties later notified the

Department that they would no longer pursue the RLSAs, and the

authorizations were withdrawn by the Department.

E. The Rule Development Process

25. In early 2007, the Department became aware of

assertions by some landowners that the RLSA program provides for

unlimited development within a stewardship area; that RLSA plan

amendments were not subject to the growth management provisions

in Chapter 163, Florida Statutes; and that RLSAs were not

subject to a needs analysis, as required by the law.

26. At the same time, the Department received numerous

inquiries from large landowners and/or their representatives

regarding RLSA proposals, some as large as 750,000 acres, and

for two "new towns" with 100,000 and 60,000 dwelling units,

respectively. It also became aware of concerns and criticisms

leveled against the one adopted RLSA program in St. Lucie County

and rural planning efforts in Collier County. The main

criticism was that the system being used for RLSA planning was

too complex, which resulted in an expensive, consultant-

intensive process that lacked transparency and was largely

incomprehensible.

27. Based on the above concerns and criticisms, the

Department began gathering information in early 2007 in

preparation for rulemaking. On July 19, 2007, it conducted its

first workshop. Two other workshops were held, and the first

draft of proposed rule 9J-5.026 was issued in January 2008.

That proposed rule set forth the minimum substantive

requirements for RLSA planning. In September 2008, the

Department issued its first draft of proposed rule 9J-11.023,

which sets forth the procedural requirements for a local

government to seek authorization from the Department to

designate an RLSA.

28. After receiving comments from interested parties, the

Department noticed the rules for adoption and conducted a rule

adoption hearing. On January 7, 2009, Petitioners filed a

Petition challenging most of the provisions in the proposed

rules. See DOAH Case No. 09-0048RP.

29. Based upon that challenge, which raised new issues not

previously brought to the attention of the Department, the

Department withdrew the rules and made substantial revisions to

address these concerns. This rendered moot Petitioners' earlier

challenge.

30. After the revised rules were noticed for adoption,

Petitioners filed their Petition challenging numerous provisions

within the proposed rules as well as one existing rule.

F. The Objections

31. As summarized in their Proposed Final Order,

Petitioners contend (a) that proposed rules 9J-11.023(2), (4),

and (5) are invalid because they exceed the Department's grant

of rulemaking authority; 4 (b) that proposed rules 9J-5.026(7)(b),

modify, or contravene the specific provisions of law

implemented; (c) that proposed rule 9J-5.026(3) is vague and

fails to establish adequate standards for agency decisions; (d)

that proposed rule 9J-5.026(9)(a)18. is arbitrary; and (e) that

existing Rule 9J-5.003(80) contravenes the specific provisions

of law implemented. The remaining allegations have been

voluntarily dismissed.

a. Does proposed rule 9J-11.023 exceed the grant of

legislative authority?

32. Petitioners first contend that subsections (2) and (4)

in their entirety and the words "If authorized to proceed" in

the first sentence of subsection (5) of proposed rule 9J-11.023

are an invalid exercise of delegated legislative authority

because they exceed the Department's specific grant of

legislative authority. The challenged subsections of the

proposed rule read as follows:

9J-11.023 Procedure for the Designation of

a Rural Land Stewardship Area.

* * *

(2) Pre-Notification Actions.

(a) Prior to giving official notification

of intent to designate a RLSA to the

Department, the county(ies) shall conduct at

least one noticed public workshop to discuss

and evaluate the appropriateness of

establishing a RLSA. The county(ies) shall

invite the Department of Community Affairs,

Department of Agricultural and Consumer

Affairs, Department of Environmental

Protection, Department of Transportation,

Florida Fish and Wildlife Conservation

Commission, affected regional planning

council(s), and affected water management

district(s) (collectively referred to as the

"RLSA Interagency Technical Advisory Team")

to participate in the workshop. Potentially

affected landowners and other interested

parties shall be given notice and invited to

participate in the workshop. The workshop

shall address: the statutory process for

designating a RLSA; the planning issues that

are likely to arise; and the technical

assistance that will be available from state

and regional agencies if the county(ies)

proceed to designate a RLSA. The

county(ies) shall provide opportunities for

broad public participation in the RLSA

process, which may include a series of

public meetings or workshops.

(b) The county(ies), in coordination with

the affected landowners, shall host a site

visit of the RLSA for the RLSA Interagency

Technical Advisory Team in conjunction with

the workshop or after the notification of

intent to designate pursuant to paragraph

(4)(b).

* * *

(4) Review of Notification of Intent to

Designate.

(a) The Department will provide members of

the RLSA Interagency Technical Advisory Team

with a copy of the notification of intent to

designate within five days after receipt of

the notification.

(b) If a site visit was not made prior to

the notification of intent to designate, the

Department will contact the county(ies)

within ten days after receipt of the

notification of intent to arrange a site

visit of the proposed RLSA and surrounding

lands. The county(ies) shall ensure proper

coordination with the affected landowners.

The Department will coordinate the

scheduling of the site visit with the

members of the RLSA Interagency Technical

Advisory Team and request their

participation in the site visit.

(c) Members of the RLSA Interagency

Technical Advisory Team shall be asked to

provide the Department oral and/or written

comments on the proposed RLSA within 30 days

of the receipt of the notification of intent

to designate or the site visit, if it occurs

after the notification. The Department may

also request meetings with the members of

the RLSA Interagency Technical Advisory Team

to discuss and evaluate the notification and

site visit. The Department may also request

a conference with the county's(ies')

staff(s) to discuss issues and questions

that have arisen as a result of the site

visit, comments from members of the

Interagency Technical Advisory Team and

other stakeholders, and the Department's

evaluation of the RLSA proposal.

(d) Not later than 60 days following the

receipt of the notification of intent to

designate or the site visit, whichever is

later, the Department shall issue a written

notification to the county(ies).

(e) The Department's notification shall

authorize the county(ies) to proceed with a

plan amendment to designate the RLSA or

inform the county(ies) of the Department's

decision not to authorize. The decision

shall be based on the information contained

in or gained from the notification, site

visit, other agency comments, and other

information received. The Department shall

authorize the county(ies) to proceed if it

determines that the proposed RLSA meets the

threshold eligibility requirements of

subsection 9J-5.026(4), F.A.C. and that

there is a reasonable likelihood that the

RLSA will further the principles of rural

sustainability. If the Department decides

to authorize the county(ies) to proceed with

a plan amendment to designate a RLSA, the

notification will set forth the facts on

which the authorization is based, and may

include recommendations to the county(ies)

regarding the RLSA. The notification will

not guarantee that a comprehensive plan

amendment(s) to designate a RLSA will be

found in compliance by the Department. It

will only constitute the Department's

authorization to designate a RLSA if the

necessary comprehensive plan amendment(s)

are adopted and found in compliance pursuant

to Section 163.3184, F.S. If the Department

decides not to authorize the county(ies) to

proceed with a plan amendment to designate a

RLSA, the agency's notification will explain

the reasons for the decision.

(5) Amendment to the Comprehensive Plan:

If authorized to proceed, the county(ies)

may prepare and process a plan amendment(s)

that will be reviewed by the Department

pursuant to Section 163.3184, F.S. The

county(ies) may, in preparing the plan

amendment(s), establish a local visioning

process to facilitate the development of a

RLSA plan amendment. The Department

encourages the county(ies) to seek and

utilize technical assistance from the

members of the RLSA Interagency Technical

Advisory Team in preparing a RLSA plan

amendment.

33. Sections 120.52(8)(b) and 120.54(3)(a)1., Florida

Statutes, require that the agency list in the rulemaking

notice the purported rulemaking authority for the proposed

rule. To comply with this requirement, the Department's

rulemaking notice cites Sections 163.3177(9) and (11)(h),

Florida Statutes, as the specific authority for adopting the

rule and Section 163.3177(11)(d)1., Florida Statutes, as the law

being implemented. In its Proposed Final Order, the Department

relies on Section 163.3177(11)(h) as the specific statutory

authority for rulemaking. It provides that the Department "may

adopt rules necessary to implement the provisions of [subsection

163.3177(11)]," including the RLSA provisions found in Section

163.3177(11)(d). On the other hand, the law being implemented

is quite lengthy and reads as follows:

(11)(d)1. The department, in cooperation

with the Department of Agriculture and

Consumer Services, the Department of

Environmental Protection, water management

districts, and regional planning councils,

shall provide assistance to local

governments in the implementation of this

paragraph and rule 9J-5.006(5)(l), Florida

Administrative Code. Implementation of

those provisions shall include a process by

which the department may authorize local

governments to designate all or portions of

lands classified in the future land use

element as predominately agriculture, rural,

open, open-rural, or a substantively

equivalent land use, as a rural land

stewardship area within which planning and

economic incentives are applied to encourage

the implementation of innovative and

flexible planning techniques, including

those contained herein and in rule 9J-

5.006(5)(l), Florida Administrative Code.

Assistance may include, but is not limited

to:

a. Assistance from the Department of

Environmental Protection and water

management districts in creating the

geographic information systems land cover

database and aerial photogrammetry needed to

prepare for a [RLSA];

b. Support for local government

implementation of rural land stewardship

concepts by providing information and

assistance to local governments regarding

land acquisition and assistance to local

governments regarding land acquisition

programs that may be used by the local

government programs that may be used by the

local government or landowners to leverage

the protection of greater acreage and

maximize the effectiveness of rural land

stewardship areas; and

c. Expansion of the role of the Department

of Community Affairs as a resource agency to

facilitate establishment of [RLSAs] in

smaller rural counties that do not have the

staff or planning budgets to create a

[RLSA].

34. Proposed rule 9J-11.023 describes in detail the

process by which a local government is to request Department

authorization to designate a RLSA. At issue here are provisions

in subsections (2), (4), and (5) of the rule that require a

local government wishing to designate an RLSA to conduct a

public workshop; cover particular topics during the workshop;

host a site visit with designated agencies; and based on the

information gathered from this process to then allow the

Department, in its discretion, to either authorize or not

authorize the local government to begin to prepare and process

an RLSA amendment. The latter decision is based on whether the

local government has shown "a reasonable likelihood that the

RLSA will further the principles of rural sustainability."

Petitioners contend that there is no specific grant of

rulemaking authority that authorizes the Department to mandate

these procedures in the rule or to prevent a local government

from proposing and processing an RLSA plan amendment. Instead,

they contend that the enabling statute only allows the

Department to promulgate rules that are "necessary" to implement

the RLSA program, those being a requirement that the county

provide notice to the Department that it intends to propose a

RLSA plan amendment and a description of the subsequent review

process by the Department to determine whether the amendment is

in compliance.

35. Section 163.3177(11)(d)1., Florida Statutes,

authorizes the Department to provide "assistance to local

governments in the implementation of this paragraph and rule 9J-

5.006(5)(l)." (The cited rule, among other things, encourages

"innovative and flexible planning and development strategies"

that allow conversion of rural and agricultural lands to other

uses.) The statute also includes specific authority to

establish a "process by which the department may authorize local

governments to designate all or portions of lands classified in

the future land use element (FLUE] as predominately

agricultural, rural, open, open-rural, or a substantively

equivalent land use, as a [RLSA] . . . ." The rule accomplishes

this purpose by requiring state agency technical assistance,

establishing the process for a workshop and site visit,

requiring that the county's notification describe the basis for

the designation, requiring broad public participation, and

assuring, by approval or disapproval of the county's preliminary

proposal, that the proposed RLSA will promote the principles of

rural sustainability. Notably, had the Legislature intended

this authorization process to be the same as the existing

compliance review process for conventional plan amendments,

there would be no need for this statutory language.

36. The proposed rule does not exceed the Department's

grant of rulemaking authority.

b. Do certain provisions within proposed rule 9J-5.026(7)

and (9) enlarge, modify, or contravene the law implemented?

37. Petitioners further contend that proposed rules 9J-

19. enlarge, modify, or contravene the specific provisions of

law implemented. The challenged rules read as follows:

9J-5.026 Rural Land Stewardship Area (RLSA)

* * *

(7) Data and Analysis Requirements.

* * *

(b) Population Projections and Analysis of

Land Use Need. Population projections and

analysis of land use need shall be prepared

in accordance with Rule 9J-5.006, F.A.C.,

with the following modifications: The

amount and extent of allowable development

in the RLSA must be based on the 25-year or

greater projected population of the RLSA;

the anticipated effect of the proposed RLSA

must receiving areas, including any

committed catalyst projects, infrastructure

improvements, or other projects that would

attract and support development; the

furtherance of the statutory principles of

rural sustainability; and the goals,

objectives, and policies of the RLSA plan

amendment.

* * *

(c)4. Land development and other conversion

threats whereby rural resources under threat

require more incentives via stewardship

credits and less threatened resources

require lesser incentives. This includes

the future threat of low-density sprawl on

lands within and surrounding Eligible

Receiving Areas; and

* * *

6. Values shall be assigned to all of

the land in the RLSA. The highest values

shall be assigned to the most

environmentally valuable land, and to open

space and agricultural land where the

retention of such lands is a priority. The

assignment of values shall be submitted with

the RLSA plan amendment as part of the

supporting data and analysis.

* * *

(8) Stewardship Credit System Criteria.

(a) Each credit shall represent a defined

number of residential units or a defined

amount of non-residential square footage.

The credit transferee may decide whether to

use the credit for a residential or non-

residential use in accordance with the land

use standards established for the Designated

Receiving Area.

* * *

(9) Goals, Objectives, Policies, and Map.

* * *

(a) The goals, objectives, and policies

shall include the following:

* * *

3. Identification of the innovative

planning and development strategies to be

used within the RLSA, and a process for

implementing the strategies, including the

adoption of implementing plan amendments,

land development regulations, and the

issuance of development orders. The process

shall include provision for the Department's

review of a proposed land development

regulation to designate a receiving area for

consistency with the RLSA plan amendment.

* * *

6. A requirement that Eligible Receiving

Areas shall be located on land that is

suitable for development and have the lowest

land values based on the land values

analysis conducted pursuant to paragraph

(7)(c).

* * *

18. Policies for new towns which comply

with the following:

a. As required by subsection 9J-5.003(80)

and paragraph 9J-5.006(5)(1), F.A.C., a new

town shall be designated on the future land

use map. A new town shall be located within

a Designated Receiving Area. The plan

amendment designating a new town shall

include a master development plan that

establishes the size of the new town, the

amount, location, type, density and

intensity of development, and the design

standards to be utilized in the new town.

b. Any increase in the density or intensity

of land use required to achieve the proposed

new town may occur only through the use of

stewardship credits assigned or transferred

to the Designated Receiving Area either

prior to or subsequent to the designation of

the new town on the future land use map.

c. New towns shall be surrounded by

greenbelts, except for any connecting rural

road corridors and to the extent that new

towns are adjacent to existing or planned

urban development or incorporated areas.

d. A future land use map amendment to

designate a new town shall be internally

consistent with RLSA provisions of the

comprehensive plan.

e. A future land use map amendment to

designate a new town shall be accompanied by

an amendment to the capital improvements

element to incorporate a financially

feasible five-year capital improvements

schedule for the public facilities necessary

to serve the new town and an amendment to

the transportation or traffic circulation

element to designate any new rural road

corridors required to connect the new town

with the rest of the RLSA.

19. Provisions to ensure that any use of

the underlying densities and intensities of

land uses assigned to parcels of land by the

county comprehensive plan prior to

designation of the RLSA furthers the

principles of rural sustainability.

* * *

38. The grant of authority for this rule is cited as

Sections 163.3177(9) and (11)(h), Florida Statutes, while

b),

and (d)1., 2., 4., 5., and 6., Florida Statutes, are cited as

the laws being implemented.

39. Subsection (2) of the law being implemented provides

that "[c]oordination of the several elements of the local

comprehensive plan shall be a major objective of the planning

process"; subsection (3) is a lengthy provision requiring that a

comprehensive plan include a capital improvements element;

paragraph (6)(a) describes in detail the matters that must be

contained in the FLUE; subsection (8) requires that all elements

of the comprehensive plan be based on data appropriate to the

element involved; paragraph (10)(e) generally provides that

support data and analysis shall not be subject to the compliance

review process, but they must be based on appropriate data;

paragraph (11)(a) describes the Legislature's recognition of

using innovative planning and development strategies; paragraph

(11)(b) expresses the intent of the Legislature to allow the

conversion of rural lands to other uses, where appropriate,

including urban villages, new towns, satellite communities,

area-based allocations, clustering, and open space provisions,

mixed-use development, and sector planning; and subparagraphs

(11)(d)1., 2., 4., 5., and 6. describe the statutory process for

creating an RLSA.

40. Subsection (7) of the proposed rule sets forth the

data and analysis requirements that apply to all RLSA plan

amendments, including data and analysis of existing conditions

(subparagraphs (7)(a)1. through 10.); population projections and

analysis of land use (paragraph (7)(b)); and a land values

analysis (subparagraphs (7)(c)1. through 6.).

41. A land use needs analysis is an integral part of the

planning process. Paragraph (7)(b) requires that an RLSA

amendment be supported by population projections and an analysis

of land use need such that the amount and extent of allowable

development must be based on the 25-year or greater projected

population of the RLSA, other items, and the anticipated effect

of proposed RLSA receiving areas. Petitioners contend that this

language contravenes Section 163.3177(11)(d)6., Florida

Statutes, amended in 2005, which provides in part that the total

amount of development "must enable the realization of the long-

term vision and goals for the 25-year or greater projected

population of the [RLSA], which may take into consideration the

anticipated effect of the proposed receiving areas." See Ch.

2005-290, Laws of Fla.

42. Paragraph (7)(b) does not contravene the terms of the

statute. As expressed in the law being implemented, the rule

directs that the need analysis shall be based upon, among other

things, "the anticipated effect of the proposed RLSA receiving

areas . . . ."

43. As a part of the data and analysis to be supplied,

paragraph (7)(c) requires that an RLSA amendment be supported by

a land values analysis that considers six components described

in subparagraphs 1. through 6. This in turn requires a

comprehensive analysis of rural resources that exist within the

RLSA. Subparagraph 4. requires that the analysis include the

development threats to rural resources and that resources under

threat of conversion receive more incentives from stewardship

credits than resources under less of a threat. Petitioners

contend that the rule contravenes Section 163.3177(11)(d)6.j.,

Florida Statutes, because it requires a greater value to be

assigned to resources under threat of conversion and would

result in other rural and natural and agricultural resources

which may have a higher intrinsic value being assigned fewer

credits. Specifically, the cited statute requires that "the

highest number of credits per acre" should be "assigned to the

most environmentally valuable land, or, in locations where the

retention of open space and agricultural land is a priority, to

such lands."

44. The purpose of the rule is straightforward: to

protect those resources that are under the greatest threat and

those that are most susceptible to harm over time through land

development or other changes, including urban sprawl. Contrary

to Petitioners' assertion, the overall analysis does in fact

consider all forms of rural resources in determining how the

credits will be assigned. The rule implements the statutory

directive of attaining the principles of rural sustainability.

45. Subparagraph (7)(c)6. requires, among other things,

that the local government submit as a part of the data and

analysis supporting the plan amendment "the assignment of

values" of all lands in the RLSA. Petitioners contend that

assigning values at the time of the amendment "locks in these

values" and would require a subsequent plan amendment in

contravention of Section 163.3177(11)(d)6., Florida Statutes,

which Petitioners argue contemplates the creation of credits

after the adoption of the plan amendment. At hearing, however,

the Department explained that because conditions will obviously

change over time, the land values analysis will be periodically

updated and can be changed without a new plan amendment. In

their Proposed Final Order, Petitioners concede that given this

interpretation of the rule, it "would not be an invalid exercise

of delegated legislative authority." See Petitioners' Proposed

Final Order, par. 73.

46. Paragraph (8)(a) of the proposed rule requires each

stewardship credit to represent either a defined number of

residential units or non-residential square footage. Once the

credits are created in sending areas, they can be transferred to

designated receiving areas to be used to enable development that

is consistent with the RLSA goals, objectives, and policies.

Petitioners contend that the rule will prohibit mixed-use

development in contravention of Section 163.3177(11)(d)4.c.,

Florida Statutes, which requires that the RLSA goals, policies,

and objective provide for a "functional mix of land uses."

47. There is no prohibition of a mix of land uses. In

fact, the opposite is true. As clarified by a Department

witness, "a mix is essentially required, as you can see from

[sub]paragraph (9)(a)17., which describes that a mix of use must

be addressed." Tr. at 273. The rule does not contravene the

statute.

48. Subsection (9) of the proposed rule generally requires

that the RLSA plan amendment contain goals, objectives,

policies, and a map. Subparagraphs (9)(a)1. through 21. require

that the goals, objectives, and policies identify the innovative

planning and development strategies to be used in the RLSA

process, including the adoption of implementing plan amendments,

land development regulations, and the issuance of development

orders. Petitioners allege that subparagraphs 3., 6., 18., and

19. enlarge, modify, or contravene the law implemented.

49. Subparagraph 3. requires "implementing plan

amendments" because the Department recognized the fact that the

RLSA planning process will consume years or even decades and

will require implementing plan amendments to accomplish its

purpose. This is especially true here as the RLSA process

involves the development of large tracts of land (as much as

100,000 acres or more) that will take years or decades to fully

implement and build out. At a minimum, under current law, the

"implementing plan amendments" will include a capital

improvements element annual update; water supply planning, and

the designation of new towns. Except for the requirement that

an implementing plan amendment designate a new town pursuant to

existing Rule 9J-5.003(80), Petitioners agree that the proposed

rule is valid. Because the cited existing rule has been

determined to be valid, Petitioners' contention is rejected.

See Findings 62-65, infra .

50. Subparagraph 6. provides that the goals, policies, and

objectives shall contain "a requirement that the Eligible

Receiving Areas shall be located on land that is suitable for

development and have the lowest land values on the land values

analysis conducted pursuant to paragraph (7)(c)." Petitioners

contend that this provision limits the flexibility of local

governments to determine the best location for Eligible

Receiving Areas and therefore contravenes the provisions in

various parts of Section 163.3177, Florida Statutes, that

emphasize flexibility.

51. The rule implements the principles of rural

sustainability contained in Section 163.3177(11)(d)2., Florida

Statutes. Only by directing development to land with the lowest

environmental, agricultural, and rural resource value will an

RLSA protect ecosystems, habitat, natural resources, and the

agricultural economy. The rule does not contravene this

statute.

52. Subparagraph 18. requires an RLSA plan amendment to

include policies for "new towns," including a requirement that a

new town be designated on the FLUM. Petitioners contend that

the requirement to designate a new town on the FLUM contravenes

Section 163.3177(11)(4)(d)4., Florida Statutes, which provides

for the implementation of the innovative planning and

development strategies included in existing Rule 9J-5.006(5)(l)

through zoning and land development regulations. At hearing,

Petitioners narrowed their argument to this one feature in the

rule. Because the Department may lawfully require that new

towns be designated on the FLUM, subparagraph 18. is consistent

with the statute implemented. See Findings 62-65, infra .

53. Subparagraph 19. requires that RLSA plan amendments

contain goals, objectives, and policies "to ensure that any use

of the underlying densities and intensities of land uses

assigned to parcels of land by the county comprehensive plan

prior to designation of the RLSA furthers the principles of

rural sustainability." Petitioners contend this provision

contravenes Section 163.3177(11)(d)6., Florida Statutes, because

it "impinges on existing land use rights which is contrary to

one of the statutory principles of rural sustainability, namely

the 'restoration and maintenance of the economic value

associated with rural lands.'" The rule, however, furthers the

principles of rural sustainability, as required by Section

163.3177(11)(d)1., Florida Statutes, since it requires that all

lands within an RLSA, whether or not in a Designated Receiving

Area, be developed in a manner that furthers those principles.

It does not contravene the cited statute.

54. Petitioners also contend that subparagraph 19.

contravenes Section 163.3161(9), Florida Statutes, which

requires, among other things, that all programs be applied "with

sensitivity for private property rights and not be unduly

restrictive." Petitioners surmise that the rule may operate to

displace underlying density within the RSLA regardless of the

use of the RLSA credit system. However, the rule does not

displace any underlying density; it only requires that

underlying rights be exercised consistent with the RLSA. More

specifically, existing densities may be used in any manner that

furthers the principles without displacing any of those

densities. The rule does not contravene either statute.

c. Is proposed rule 9J-5.026(3) vague and does it have

inadequate standards for agency decisions?

55. Petitioners next contend that subsection (3) of

proposed rule 9J-5.026, and specifically certain words within

the definition of the term "greenbelt," are vague and fail to

establish adequate standards for agency decisions. That

provision reads as follows:

9J-5.026 Rural Land Stewardship Area (RSLA)

* * *

(3) Definitions

* * *

(d) "Greenbelt" means a border of

permanently undeveloped land sufficient in

size to effectively preclude the expansion

of urban development into the surrounding

rural lands and to provide an effective

buffer to protect the surrounding rural

resources from development impacts.

56. A greenbelt is an undeveloped area that surrounds an

urban area, a new town, or other urban development and is meant

to separate the urban developed area from the surrounding area

to provide a border that protects surrounding rural lands from

urban development. Petitioners contend that the use of the

adjectives "sufficient," "effectively," and "effective" to

describe the greenbelt buffer are vague and lack standards to

guide agency determinations.

57. In common usage, the word "sufficient" means that the

greenbelt is sufficient in size to accomplish its purpose of

precluding the expansion of urban development into the

surrounding rural lands. Similarly, the word "effectively"

means that the use or creation of a buffer to protect urban

encroachment on rural lands will be accomplished in an effective

manner. Likewise, the word "effective" simply means that the

greenbelt achieves the purpose of creating a buffer. These

phrases are easily understood by persons of ordinary

intelligence, particularly when read in context with other

provisions of the rule. See , e.g. , Cole Vision Corp., et al. v.

Dept. of Bus. and Prof. Reg. , 688 So. 2d 404, 410 (Fla. 1st DCA

1997).

58. Petitioners contend, however, that the rule fails to

explicitly include the standard that site-specific data would be

considered in determining the "sufficiency" of a buffer.

However, this level of detail is not needed since site-specific

information is typically considered and applied by the local

government and Department through the planning process and might

include, for example, the nature of the urban area, the

potential impacts if the urban area is extended, the nature of

the surrounding land, and other similar factors. The rule is

not so vague or lacks sufficient standards as to be invalid.

d. Is proposed rule 9J-5.026(9)(a)18. arbitrary ?

59. Petitioners further contend that subparagraph

(9)(a)18. of proposed rule 9J-5.026 is arbitrary. That rule

reads as follows:

18. Policies for new towns which comply

with the following:

a. As required by subsection 9J-5.003(80)

and paragraph 9J-5.006(5)(1), F.A.C., a new

town shall be designated on the future land

use map. A new town shall be located within

a Designated Receiving Area. The plan

amendment designating a new town shall

include a master development plan that

establishes the size of the new town, the

amount, location, type, density and

intensity of development, and the design

standards to be utilized in the new town.

b. Any increase in the density or intensity

of land use required to achieve the proposed

new town may occur only through the use of

stewardship credits assigned or transferred

to the Designated Receiving Area either

prior to or subsequent to the designation of

the new town on the future land use map.

c. New towns shall be surrounded by

greenbelts, except for any connecting rural

road corridors and to the extent that new

towns are adjacent to existing or planned

urban development or incorporated areas.

d. A future land use map amendment to

designate a new town shall be internally

consistent with RLSA provisions of the

comprehensive plan.

e. A future land use map amendment to

designate a new town shall be accompanied by

an amendment to the capital improvements

element to incorporate a financially

feasible five-year capital improvements

schedule for the public facilities necessary

to serve the new town and an amendment to

the transportation or traffic circulation

element to designate any new rural road

corridors required to connect the new town

with the rest of the RSLA.

60. As noted earlier, this rule sets forth the

requirements for policies in the RLSA plan amendment that are

applicable to new towns. Petitioners contend that the rule is

arbitrary because it "selectively emphasizes" a new town as only

one of several innovative and flexible planning strategies set

forth in existing Rule 9J-5.006(5)(l).

61. To be arbitrary, a rule must not be supported by logic

or the necessary facts. See § 120.52(8)(e), Fla. Stat. Here,

the more persuasive evidence shows that new towns are much

larger development types; they are more intense than other

development forms; and they will likely generate greater

impacts. In an RLSA, they take on even more significance since

the planning goal is to further the principles of rural

sustainability. Collectively, these factors form a sufficient

basis and rationale for giving new towns different treatment

than other development forms that are smaller, have fewer uses,

are less intense, and are more likely to have lesser impacts.

The proposed rule is not arbitrary.

e. Does existing Rule 9J-5.003(80) contravene the specific

provisions of law implemented?

62. Finally, Petitioners have challenged existing Rule 9J-

5.003(80), which became effective in 1994, on the ground that it

contravenes the specific provisions of law implemented. That

rule defines the term "new town" as follows:

(80) "New town" means a new urban activity

center designated on the future land use map

and located within a rural area, distinct

and geographically separated from existing

urban areas and other new towns. A new town

is of sufficient size, population and land

use composition to support a variety of

economic and social activities consistent

with an urban area designation. New towns

include basic economic activities; all major

land use categories; and a centrally

provided full range of public facilities and

services. New towns are based on a master

development plan.

63. The specific authority for the rule, when adopted, was

Section 163.3177(9) and (10), while the law being implemented

was identified as Sections 163.3177 and 163.3178, Florida

Statutes. Because Section 163.3178 involves coastal management,

and a new town would probably not be located in a coastal zone,

it has marginal relevance to this proceeding. The Department

relies principally on Section 163.3177(6)(a), Florida Statutes,

which requires, among other things, that "various categories of

land use shall be shown on a land use map or map series." 6

64. The existing definition provides, in part, that a new

town will include "all major land use categories, with the

possible exception of agricultural and industrial." Because

they include numerous land use categories, new towns are by

definition a mixed-use land use category. See Fla. Admin. Code

R. 9J-5.006(4)(c). Mixed-use land use categories must be

designated on the FLUM. See § 163.3177(6)(a), Fla. Stat.("The

future land use plan may designate areas for future planned

development use involving combinations of types of uses").

65. As noted above, a new town is recognized in existing

Rule 9J-5.006(5)(l) as an innovative and flexible planning

option. Because the Legislature referenced this rule provision

with approval four times in the RLSA statute, it must be

presumed that the Legislature was expressing approval of the

existing definition with the mapping requirement. See

§§ 163.3177(11)(d)1. (two separate references);

contravene the statute being implemented.

CONCLUSIONS OF LAW

66. The Division of Administrative Hearings has

jurisdiction over this matter pursuant to Sections 120.56,

120.569, and 120.57(1), Florida Statutes.

67. Petitioners have challenged the proposed rules in

accordance with the definition of "invalid exercise of delegated

legislative authority" in Section 120.52(8)(b), Florida

Statutes, which provides:

(8) "Invalid exercise of delegated

legislative authority" means action which

goes beyond the powers, functions, and

duties delegated by the Legislature. A

proposed or existing rule is an invalid

exercise of delegated legislative authority

if any one of the following applies:

(a) The agency has materially failed to

follow the applicable rulemaking procedures

or requirements set forth in this chapter;

(b) The agency has exceeded its grant of

rulemaking authority, citation to which is

required by s. 120.54(3)(a)1.;

(c) The rule enlarges, modifies, or

contravenes the specific provisions of law

implemented, citation which is required by

s. 120.54(3)(a)1;

(d) The rule is vague, fails to establish

adequate standards for agency decisions, or

vests unbridled discretion in the agency;

(e) The rule is arbitrary or capricious. A

rule is arbitrary if it is not supported by

logic or the necessary facts; a rule is

capricious if it is adopted without thought

or reason or is irrational; or

(f) The rule imposes regulatory costs on

the regulated person, county or city which

could be reduced by the adoption of less

costly alternatives that substantially

accomplish the statutory directives.

68. In a proceeding to challenge a proposed rule, the

petitioner has the burden of going forward initially with proof

that supports the allegations in the petition. The agency then

has the burden to prove by a preponderance of the evidence that

the proposed rule is not an invalid exercise of delegated

legislative authority as to the objections raised. See

§ 120.56(2), Fla. Stat.; St. Johns River Water Management

District v. Consolidated-Tomoka Land Co. et al. , 717 So. 2d 72,

76 (Fla. 1st DCA 1998). The proposed rule is not presumed to be

valid or invalid. See § 120.56(2)(c), Fla. Stat. When an

existing rule is challenged, a petitioner has the burden of

proving by a preponderance of the evidence that the existing

rule is an invalid exercise of delegated legislative authority.

See § 120.56(3), Fla. Stat.

69. Section 120.52(8)(b), Florida Statutes, states that a

proposed rule is invalid where "[t]he agency has exceeded its

grant of rulemaking authority, citation to which is required

. . . ." The same statute provides a set of general standards

applicable to all subsections in determining rule validity.

These standards are contained in the closing paragraph of the

statute (and Section 120.536(1), Florida Statutes) and read as

follows:

A grant of rulemaking authority is necessary

but not sufficient to allow an agency to

adopt a rule; a specific law to be

implemented is also required. An agency may

adopt only rules that implement or interpret

the specific powers and duties granted by

the enabling statute. No agency shall have

authority to adopt a rule only because it is

reasonably related to the purpose of the

enabling legislation and is not arbitrary

and capricious and is within the agency's

class of powers and duties, nor shall an

agency have the authority to implement

statutory provisions setting forth general

legislative intent or policy. Statutory

language granting rulemaking authority or

generally describing the powers and

functions of any agency shall be construed

to extend no further than implementing or

interpreting the specific powers and duties

conferred by the same statute.

70. Under these general standards, the primary issue is

"whether the statute contains a specific grant of legislative

authority for the rule, not whether the grant of authority is

specific enough." Southwest Fla. Water Management District, et

al. v. Save the Manatee Club, Inc., et al. , 773 So. 2d 594, 599

(Fla. 1st DCA 2000). A rule must be based on an explicit power

or duty identified in the enabling statute. Id. at 599. If it

does not implement or interpret a specific power or duty

conferred by the statute, the rule is invalid. Id. at 600. At

the same time, a rule may not be invalidated simply because the

governing statute, as opposed to the challenged rule, confers

discretion upon the agency. Fla. Public Service Comm., et al.

v. Fla. Waterworks Association, et al. , 731 So. 2d 836, 843

(Fla. 1st DCA 1999).

71. For the reasons given in the Findings of Fact, the

preponderance of the evidence supports a conclusion that

subsections (2), (4), and the first four words of (5) of

proposed rule 9J-11.023 do not exceed the Department's grant of

rulemaking authority.

72. A proposed rule may be invalidated if the "rule

enlarges, modifies, or contravenes the specific provisions of

law implemented . . . ." See § 120.52(8)(c), Fla. Stat. For

the reasons given in the Findings of Fact, the preponderance of

the evidence supports a conclusion that proposed rules 9J-

and existing Rule 9J-5.003(80) do not enlarge, modify, or

contravene the statutes being implemented.

73. A rule is arbitrary if it is not supported by logic or

necessary facts, while a rule is capricious if it is adopted

without thought or reason. See § 120.52(8)(e), Fla. Stat. The

burden of proving that the challenged provisions are neither

arbitrary nor capricious is upon the Department. Consolidated-

Tomoka at 77. For the reasons given in the Findings of Fact,

the preponderance of the evidence supports a conclusion that

proposed rule 9J-5.026(9)(a)18. is not arbitrary.

74. Finally, a proposed rule may be invalidated if it is

vague or fails to establish adequate standards for the agency.

See § 120.52(8)(d), Fla. Stat. For the reasons given in the

Findings of Fact, proposed rule 9J-5.026(3) is not so vague or

lacks adequate standards for a Department decision as to violate

this requirement.

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

ORDERED that the Petition challenging proposed rules 9J-

(7)(c)4., 6., (8)(a), and (9)(a)3., 6., 18. and 19.; 9J-

5.026(3); and existing Rule 9J-5.003(80) is dismissed.

DONE AND ORDERED this 14th day of September, 2009, in

Tallahassee, Leon County, Florida.

S

DONALD R. ALEXANDER

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 14th day of September, 2009.

ENDNOTES

1/ In the Pre-Hearing Stipulation, or during the hearing,

Petitioners withdrew their allegations that proposed rules 9J-

5.026(7)(b) and (9)(a)10. were vague, and that proposed rules

9J-5.026(9)(a)17. and 21. enlarged, modified, or contravened the

specific provisions of law being implemented.

2/ Except where otherwise noted, all references are to the 2008

version of the Florida Statutes.

3/ In their Petition and paragraph 19 of their Proposed Final

Order, Petitioners argue that proposed rule 9J-11.023 in its

entirety is an invalid exercise of delegated legislative

authority. In paragraph 15 of their Proposed Final Order,

however, they assert only that subsections (2), (4), and (5) are

invalid. In the closing paragraph of their Proposed Final

Order, they request that subsections (2) and (4) and "that part

of (5) which states 'If authorized to proceed'" be declared

invalid. Given these statements, only subsections (2), (4), and

the first four words in subsection (5) will be addressed.

4/ At hearing, the Department filed a Motion in Limine (Motion)

to exclude all evidence regarding an allegation by Petitioners

that paragraph (7)(b) enlarges, modifies, or contravenes the law

being implemented on the ground this allegation was not raised

as a factual dispute in the initial pleading. Petitioners

included this issue, however, in the Joint Pre-Hearing

Stipulation on the theory that it was implicitly raised in

another part of the Petition. A ruling on the Department's

Motion was reserved and evidence on the issue was presented

subject to the Department's objection. After the hearing was

concluded, Petitioners filed a Motion to Conform the Pleadings

to the evidence presented at hearing, which is opposed by the

Department. This type of relief is not sanctioned by the

Uniform Rules of Procedure, but rather is derived from Florida

Rule of Civil Procedure 1.190, which was not adopted for use in

administrative proceedings. The Motion in Limine is granted.

Even so, for purposes of appellate review, if appropriate,

findings relative to this issue are included in this Final

Order. See Findings 40-42, infra .

5/ A majority of Section 163.3177(9), Florida Statutes,

involves the original 1986 promulgation of minimum criteria

rules for the review and determination of compliance of local

government comprehensive plans with the Growth Management Act

and is, therefore, inapplicable here. The subsection also

contains a provision that the Department "may adopt procedural

rules that are consistent with [§ 163.3177] and chapter 120 for

the review of local government comprehensive plan elements."

Because proposed rule 9J-11.023 does not directly address the

review of local government comprehensive plans, this portion of

the statute also appears to be inapplicable here.

6/ That portion of Section 163.3177(6)(a), Florida Statutes

(1993), which the rule implemented when it became effective in

1994, has not been changed in any material respect since that

time.

COPIES FURNISHED:

Gary K. Hunter, Jr., Esquire

Hopping Green & Sams, P.A.

Post Office Box 6526

Tallahassee, Florida 32314-6526

Shaw P. Stiller, General Counsel

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399-2100

F. Scott Boyd, Executive Director and

General Counsel

Joint Administrative Procedures Committee

Room 120, Holland Building

Tallahassee, Florida 32399-1300

Liz Cloud, Chief

Bureau of Laws and Administrative Code

Department of State

R.A. Gray Building, Suite 101

Tallahassee, Florida 32399-0250

NOTICE OF RIGHT TO APPEAL

A party who is adversely affected by this Final Order is

entitled to judicial review pursuant to Section 120.68, Florida

Statutes. Review proceedings are governed by the Florida Rules

of Appellate Procedure. Such proceedings are commenced by

filing the original notice of appeal with the Clerk of the

Division of Administrative Hearings and a copy, accompanied by

filing fees prescribed by law, with the District Court of

Appeal, First District, or with the District Court of Appeal in

the Appellate District where the party resides. The notice of

appeal must be filed within 30 days of rendition of the order to

be reviewed.