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.
DOAH Final Order on Monday, September 14, 2009.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8FLORIDA CHAMBER OF COMMERCE, )
13INC.; FLORIDA LAND COUNCIL, )
18INC.; and FLORIDA FARM BUREAU )
24FEDERATION, )
26)
27Petitioners, )
29)
30vs. ) Case No. 09-3488RP
35)
36DEPARTMENT OF COMMUNITY )
40AFFAIRS, )
42)
43Respondent. )
45_______________________________ )
47FINAL ORDER
49Pursuant to notice, this matter was heard before the
58Division of Administrative Hearings by its assigned
65Administrative Law Judge, Donald R. Alexander, on July 14, 2009,
75in Tallahassee, Florida.
78APPEARANCES
79For Petitioners: Gary K. Hunter, Jr., Esquire
86Sarah Meyer Doar, Esquire
90Hopping Green & Sams, P.A.
95Post Office Box 6526
99Tallahassee, Florida 32314-6526
102For Respondent: Shaw P. Stiller, General Counsel
109Department of Community Affairs
1132555 Shumard Oak Boulevard
117Tallahassee, Florida 32399-2100
120STATEMENT OF THE ISSUE
124The issue is whether proposed rules 9J-5.026(3)(d), (7)(b),
13211.023(2), (4), and (5), and existing Florida Administrative
140Code Rule 9J-5.003(80) are invalid exercises of delegated
148legislative authority for the reasons alleged in the Petition
157for Administrative Hearing to Challenge Proposed Amendments to
165Chapters 9J-5 and 9J-11, F.A.C. and to Challenge Existing Rule
1759J-5.003(80) (Petition). 1
178PRELIMINARY STATEMENT
180On June 24, 2009, Petitioners, Florida Chamber of Commerce,
189Inc. (Florida Chamber), Florida Land Council, Inc. (Land
197Council), and Florida Farm Bureau Federation (Farm Bureau),
205filed their Petition alleging that substantial parts of proposed
214rules 9J-5.026 and 9J-11.023 and existing Rule 9J-5.003(80) were
223invalid exercises of delegated legislative authority, as defined
231in Section 120.52(8), Florida Statutes. 2 In general, proposed
240rule 9J-5.026 establishes the substantive requirements for
247designating a Rural Land Stewardship Area (RLSA) and adopting
256related amendments in comprehensive plans. Proposed rule 9J-
26411.023 implements the procedural requirements for establishing
271RLSAs. Existing Rule 9J-5.003(80), which became effective in
2791994, defines the term "new town."
285On June 25, 2009, Robert S. Cohen, Chief Judge of the
296Division of Administrative Hearings, determined that the
303Petition was in compliance with the general requirements of
312Section 120.56(1)(b), Florida Statutes, and assigned the case to
321Administrative Law Judge Donald R. Alexander.
327By Notice of Hearing dated June 26, 2009, a final hearing
338was scheduled on July 14, 2009, in Tallahassee, Florida. A
348Joint Pre-Hearing Stipulation was filed by the parties on
357July 13, 2009.
360At the final hearing, Petitioners presented the testimony
368of Ernest A. Cox, III, Esquire, president of Family Lands
378Remembered, LLC, and accepted as an expert, and Dr. J. Thomas
389Beck, a planner who was accepted as an expert. Also, they
400offered Petitioners' Exhibits 1, 2, 4, 5, and 7-10. All were
411received in evidence except Exhibits 4 and 5, on which a ruling
423was reserved. The objection to those exhibits is sustained.
432The Department presented the testimony of Thomas G. Pelham,
441Secretary of the Department and accepted as an expert, and
451Robert A. Pennock, Department Strategic Planning Coordinator and
459accepted as an expert. Also, it offered Department Exhibits 1
469and 2, which were received in evidence. The parties further
479offered Joint Exhibits 1-25, which were received in evidence.
488Finally, the parties' request for official recognition of Part
497II, Chapter 163, Florida Statutes, Section 380.06, Florida
505Statutes, Florida Administrative Code Rule Chapter 9J-5, and
513Rule 9J-2.021 was granted.
517The Transcript of the hearing (two volumes) was filed on
527July 31, 2009. By agreement of the parties, the time for filing
539proposed findings of fact and conclusions of law was extended to
550August 14, 2009. The same were timely filed and have been
561considered in the preparation of this Final Order.
569FINDINGS OF FACT
572Based on the evidence presented by the parties, the
581following findings are made:
585A. The Parties
5881. Petitioners are not-for-profit organizations whose
594members own real property throughout the State. A substantial
603number of their respective members own real property which could
613be amassed as one or more areas in the RLSA program. Some
625members of these organizations have taken steps in an effort to
636have their land designated as an RLSA. On behalf of their
647respective members, each Petitioner has a substantial interest
655in public policy relating to land use planning, growth
664management, and the protection of agricultural, rural, and
672conservation lands. Respondent, Department of Community Affairs
679(Department), has stipulated to the facts necessary to establish
688standing for each Petitioner.
6922. The Department is the state agency charged with
701implementing the review provisions of the Local Government
709Planning and Land Development Regulation Act codified in
717Sections 163.3164, et seq. , Florida Statutes.
723B. The Original Statute Creating the RLSA Program
7313. Because of the complexity of the subject matter, a
741recitation of the RLSA program's history is appropriate. In
7502001, the Legislature enacted Chapter 2001-279, Laws of Florida,
759codified as Section 163.3177(11)(d), Florida Statutes, which
766created the RLSA pilot program. The law became effective on
776July 1, 2001, and stated:
781It is the intent of the Legislature that
789rural land stewardship areas be used to
796further the following broad principles of
802rural sustainability: restoration and
806maintenance of the economic value of rural
813land; control of urban sprawl;
818identification and protection of ecosystems,
823habitats, and natural resources; promotion
828of rural economic activity; maintenance of
834the viability of Florida's agriculture
839economy; and protection of the character of
846the rural areas of Florida.
851criteria and substantive requirements of the RLSA program have
860been amended several times, the foregoing principles have
868remained the same.
8714. The statute provides an option, not an exception, under
881the State's growth management laws for local governments to
890implement innovative planning and development strategies for
897large, rural parcels. While having many of the attributes of a
908traditional "transfer of development rights" program, the RLSA
916planning process provides additional planning and economic
923incentives as well as flexibility for the local government to
933implement this program. The program was best summarized by
942Secretary Pelham at hearing as follows:
948The RLSA process is an optional planning
955process which local governments may elect to
962use in rural and agricultural areas of the
970state. Essentially it provides incentives
975to landowners to preserve or conserve
981environmental and natural resources and
986agricultural lands by giving them
991stewardship credits that may be assigned to
998those lands to be preserved, but which can
1006be used on other lands through a transfer of
1015those credits to the receiving areas.
1021Tr. at 182.
10245. The first step in the RLSA planning process is for the
1036local government to "apply to the Department in writing
1045requesting consideration for authorization to designate a
1052[RLSA]." § 163.3177(11)(d)3., Fla. Stat. (2001). Under the
1060original statute, if the Department chose to authorize a local
1070government to designate an RLSA, it would do so by written
1081agreement with the local government. See § 163.3177(11)(d)4.
1089and (5), Fla. Stat. (2001). Because the original statute was a
1100pilot program, the Department could authorize only five local
1109governments to designate RLSAs. See § 163.3177(11)(d)6., Fla.
1117Stat. (2001).
11196. To be eligible for designation as an RLSA under this
1130pilot program, a parcel of land had to be larger than 50,000
1143acres but not over 250,000 acres; it had to be designated as
1156rural or a substantial equivalent on the future land use map
1167(FLUM); and it had to be located outside the municipal and
1178established urban growth boundaries. See § 163.3177(11)(d)6.,
1185Fla. Stat. (2001). For this reason, only counties (and not
1195cities) were eligible to participate in the program.
12037. Once it received Department authorization to designate
1211an RLSA, the county was to then propose and adopt a plan
1223amendment designating the RLSA. See § 163.3177(11)(d)6., Fla.
1231Stat. (2001). This plan amendment was to be subject to full
1242review under Section 163.3184, Florida Statutes, for a
1250compliance determination. Also, the plan amendment was required
1258to specifically address the following:
1263a. Criteria for the designation of
1269receiving areas within rural land
1274stewardship areas in which innovative
1279planning and development strategies may be
1285applied. Criteria shall at a minimum
1291provide for the following adequacy of
1297suitable land to accommodate development so
1303as to avoid conflict with environmentally
1309sensitive areas, resources, and habitats;
1314compatibility between and transition from
1319higher density uses to lower intensity rural
1326uses; the establishment of receiving area
1332service boundaries which provide for a
1338separation between receiving areas and other
1344land uses within the rural land stewardship
1351area through limitations on the extension of
1358services; and connection of receiving areas
1364with the rest of the rural land stewardship
1372area using rural design and rural road
1379corridors.
1380b. Goals, objectives, and policies setting
1386forth the innovative planning and
1391development strategies to be applied within
1397rural land stewardship areas pursuant to the
1404provisions of this section.
1408c. A process for the implementation of
1415innovative planning and development
1419strategies within the rural land stewardship
1425area, including those described in this
1431subsection and s. 9J-5.006(5)(l), Florida
1436Administrative Code, which provide for a
1442functional mix of land uses and which are
1450applied through the adoption by the local
1457government of zoning and land development
1463regulations applicable to the rural land
1469stewardship area.
1471d. A process which encourages visioning
1477pursuant to s. 163.3167(11) to ensure that
1484innovative planning and development
1488strategies comply with the provisions of
1494this section.
1496e. The control of sprawl through the use of
1505innovative strategies and creative land use
1511techniques consistent with the provisions of
1517this subsection and rule 9J-5.006(5)(l),
1522Florida Administrative Code.
15258. Once the plan amendment was in place, the county was
1536then to implement it through land development regulations.
1544Under the original statute, the county by ordinance was to
"1554assign to the [RLSA] a certain number of credits, to be known
1566as 'transferable rural land use credits' . . . ." These credits
1578would then be transferred to designated receiving areas "solely
1587for the purpose of implementing innovative planning and
1595development strategies and creative land use planning techniques
1603adopted by the local government pursuant to this section." See
1613§ 163.3177(11)(d)8.b., Fla. Stat. (2001).
16189. Once transferable rural land use credits were
1626transferred from a parcel, the underlying land uses would be
1636extinguished, the parcel would be limited to agriculture or
1645conservation, and the transfer would be memorialized as a
1654restrictive covenant running with the land. See
1661§ 163.3177(11)(d)8.k., Fla. Stat. (2001).
166610. The Department was granted the authority to implement
1675this section by rule in the original statute. However, the
1685Department did not adopt rules.
169011. No county applied to participate in this pilot
1699program.
1700C. Amendments to the RLSA Statute
170612. The Legislature substantially amended the statute in
17142004. See Ch. 2004-372, Laws of Fla. Although the program had
1725no participants as of that time, the Legislature removed the
1735pilot status of the program and the limitation on the number of
1747local governments that may be authorized to designate an RLSA.
1757See § 163.3177(11)(d)1., Fla. Stat. (2004). Although the
1765requirement for a written agreement between the county and the
1775Department was deleted, the requirement for the county's
1783application and Department's authorization prior to the
1790designation of an RLSA remained. See § 163.3177(11)(d)1. and
17994., Fla. Stat. (2004).
180313. The minimum acreage for an RLSA was reduced to 10,000
1815acres and the maximum was removed. § 163.3177(11)(d)4., Fla.
1824Stat. (2004). The statute also explicitly recognized that RLSAs
183314. In 2005, the Legislature again amended the statute in
1843several respects, one of which was directed to the stewardship
1853credit methodology. See Ch. 2005-290, Laws of Fla. However,
1862the statute still requires that the total amount of credits is
1873to be tied to the "25-year or greater projected population of
1884the rural land stewardship area."
188915. Although the statute was amended again in 2006, those
1899amendments have no bearing on the issues in this case. See Ch.
19112006-220, Laws of Fla.
1915D. Designating an RLSA Under the Statute
192216. Collier County has been frequently mentioned as a
1931local government with an RLSA program. However, that County's
1940comprehensive plan provisions regarding rural development were
1947not adopted under the RLSA statute; rather, they were adopted by
1958the County in 1999 as conventional plan amendments that were
1968later approved in 2002 by a final order issued by the
1979Administration Commission. Collier County's rural planning
1985program does, however, have some of the same core attributes
1995found in the RLSA program, including the creation of
2004transferable land use credits to enable development in
2012designated receiving areas.
201517. The Department closely examined the Collier County
2023program as part of its "Rural Land Stewardship Area Program 2007
2034Annual Report to the Legislature" (2007 Annual Report). See
2043Joint Exhibit 4. See also § 163.3177(11)(d)8., Fla. Stat.
2052("[t]he department shall report to the Legislature on an annual
2063basis on the results of implementation of [RLSAs] authorized by
2073the department"). This examination revealed several substantial
2081flaws in the program. First, the Collier County program is
2091extremely complex, with over twenty general attributes that must
2100be examined for every acre of land assigned stewardship credits.
2110This would make it difficult and expensive for small rural
2120counties with limited resources.
212418. The Collier County program also assigns the highest
2133stewardship credits to environmentally sensitive lands and
2140appreciably lower values to agricultural land. The result is
2149that development is directed to agricultural areas. For
2157example, eighty-seven percent of the footprint of one receiving
2166area that is currently being developed, known as Ave Maria, was
2177in active agriculture prior to its designation for development.
2186In this respect, the Collier County system is directing
2195development to agricultural lands and not protecting and
2203conserving those lands, which the Department contends
2210contravenes the principles of rural sustainability.
221619. Another major concern with the Collier County program
2225is the extent and distribution of receiving areas. The Collier
2235County program does not have any requirements that the receiving
2245area be clustered, thus allowing for the possibility of
2254scattered, sprawling receiving areas throughout eastern Collier
2261County. Also, there appears to be no limit on the footprint of
2273these receiving areas. The original Collier County program
2281envisioned development on only nine to ten percent of the entire
2292area, for a total of approximately 16,800 acres. However, due
2303to the complexity and "flexibility" within the Collier County
2312stewardship credit system, "the maximum development footprint
2319cannot be determined."
232220. On September 12, 2006, St. Lucie County adopted plan
2332amendments under the RLSA statute. Later that year, the
2341Department reviewed the amendments and found them to be in
2351compliance.
235221. In preparing the 2007 Annual Report, the Department
2361undertook a detailed analysis of the St. Lucie RLSA amendments.
2371Even though the amendments had been previously found to be in
2382compliance, the new analysis revealed several shortcomings in
2390the amendments, including their failure to discuss, analyze, or
2399demonstrate how they further the principles of rural
2407sustainability, a primary focus of the program. Also, the
2416amendments were not supported by an analysis of land use need.
2427Instead of projecting population and need, the RLSA adopted an
2437arbitrary cap of 13,248 dwelling units with "no known planning
2448basis."
244922. The St. Lucie RLSA is similar to the Collier County
2460program in two respects: it is very complex, and it places no
2472spacial limits on the footprint of the development area.
248123. Due to these shortcomings, the Department has placed
2490little, if any, reliance on the St. Lucie County RLSA amendments
2501as an example of proper planning under the RLSA statute. There
2512is no evidence that any development has occurred under the St.
2523Lucie program, and its most recent Evaluation and Appraisal
2532Report dated October 2008 indicated that none may ever occur.
254224. In 2007, Highlands and Osceola Counties both applied
2551for and were granted authorization by the Department to
2560designate RLSAs. However, both counties later notified the
2568Department that they would no longer pursue the RLSAs, and the
2579authorizations were withdrawn by the Department.
2585E. The Rule Development Process
259025. In early 2007, the Department became aware of
2599assertions by some landowners that the RLSA program provides for
2609unlimited development within a stewardship area; that RLSA plan
2618amendments were not subject to the growth management provisions
2627in Chapter 163, Florida Statutes; and that RLSAs were not
2637subject to a needs analysis, as required by the law.
264726. At the same time, the Department received numerous
2656inquiries from large landowners and/or their representatives
2663regarding RLSA proposals, some as large as 750,000 acres, and
2674for two "new towns" with 100,000 and 60,000 dwelling units,
2686respectively. It also became aware of concerns and criticisms
2695leveled against the one adopted RLSA program in St. Lucie County
2706and rural planning efforts in Collier County. The main
2715criticism was that the system being used for RLSA planning was
2726too complex, which resulted in an expensive, consultant-
2734intensive process that lacked transparency and was largely
2742incomprehensible.
274327. Based on the above concerns and criticisms, the
2752Department began gathering information in early 2007 in
2760preparation for rulemaking. On July 19, 2007, it conducted its
2770first workshop. Two other workshops were held, and the first
2780draft of proposed rule 9J-5.026 was issued in January 2008.
2790That proposed rule set forth the minimum substantive
2798requirements for RLSA planning. In September 2008, the
2806Department issued its first draft of proposed rule 9J-11.023,
2815which sets forth the procedural requirements for a local
2824government to seek authorization from the Department to
2832designate an RLSA.
283528. After receiving comments from interested parties, the
2843Department noticed the rules for adoption and conducted a rule
2853adoption hearing. On January 7, 2009, Petitioners filed a
2862Petition challenging most of the provisions in the proposed
2871rules. See DOAH Case No. 09-0048RP.
287729. Based upon that challenge, which raised new issues not
2887previously brought to the attention of the Department, the
2896Department withdrew the rules and made substantial revisions to
2905address these concerns. This rendered moot Petitioners' earlier
2913challenge.
291430. After the revised rules were noticed for adoption,
2923Petitioners filed their Petition challenging numerous provisions
2930within the proposed rules as well as one existing rule.
2940F. The Objections
294331. As summarized in their Proposed Final Order,
2951Petitioners contend (a) that proposed rules 9J-11.023(2), (4),
2959and (5) are invalid because they exceed the Department's grant
2969of rulemaking authority; 4 (b) that proposed rules 9J-5.026(7)(b),
2978modify, or contravene the specific provisions of law
2986implemented; (c) that proposed rule 9J-5.026(3) is vague and
2995fails to establish adequate standards for agency decisions; (d)
3004that proposed rule 9J-5.026(9)(a)18. is arbitrary; and (e) that
3013existing Rule 9J-5.003(80) contravenes the specific provisions
3020of law implemented. The remaining allegations have been
3028voluntarily dismissed.
3030a. Does proposed rule 9J-11.023 exceed the grant of
3039legislative authority?
304132. Petitioners first contend that subsections (2) and (4)
3050in their entirety and the words "If authorized to proceed" in
3061the first sentence of subsection (5) of proposed rule 9J-11.023
3071are an invalid exercise of delegated legislative authority
3079because they exceed the Department's specific grant of
3087legislative authority. The challenged subsections of the
3094proposed rule read as follows:
30999J-11.023 Procedure for the Designation of
3105a Rural Land Stewardship Area.
3110* * *
3113(2) Pre-Notification Actions.
3116(a) Prior to giving official notification
3122of intent to designate a RLSA to the
3130Department, the county(ies) shall conduct at
3136least one noticed public workshop to discuss
3143and evaluate the appropriateness of
3148establishing a RLSA. The county(ies) shall
3154invite the Department of Community Affairs,
3160Department of Agricultural and Consumer
3165Affairs, Department of Environmental
3169Protection, Department of Transportation,
3173Florida Fish and Wildlife Conservation
3178Commission, affected regional planning
3182council(s), and affected water management
3187district(s) (collectively referred to as the
"3193RLSA Interagency Technical Advisory Team")
3199to participate in the workshop. Potentially
3205affected landowners and other interested
3210parties shall be given notice and invited to
3218participate in the workshop. The workshop
3224shall address: the statutory process for
3230designating a RLSA; the planning issues that
3237are likely to arise; and the technical
3244assistance that will be available from state
3251and regional agencies if the county(ies)
3257proceed to designate a RLSA. The
3263county(ies) shall provide opportunities for
3268broad public participation in the RLSA
3274process, which may include a series of
3281public meetings or workshops.
3285(b) The county(ies), in coordination with
3291the affected landowners, shall host a site
3298visit of the RLSA for the RLSA Interagency
3306Technical Advisory Team in conjunction with
3312the workshop or after the notification of
3319intent to designate pursuant to paragraph
3325(4)(b).
3326* * *
3329(4) Review of Notification of Intent to
3336Designate.
3337(a) The Department will provide members of
3344the RLSA Interagency Technical Advisory Team
3350with a copy of the notification of intent to
3359designate within five days after receipt of
3366the notification.
3368(b) If a site visit was not made prior to
3378the notification of intent to designate, the
3385Department will contact the county(ies)
3390within ten days after receipt of the
3397notification of intent to arrange a site
3404visit of the proposed RLSA and surrounding
3411lands. The county(ies) shall ensure proper
3417coordination with the affected landowners.
3422The Department will coordinate the
3427scheduling of the site visit with the
3434members of the RLSA Interagency Technical
3440Advisory Team and request their
3445participation in the site visit.
3450(c) Members of the RLSA Interagency
3456Technical Advisory Team shall be asked to
3463provide the Department oral and/or written
3469comments on the proposed RLSA within 30 days
3477of the receipt of the notification of intent
3485to designate or the site visit, if it occurs
3494after the notification. The Department may
3500also request meetings with the members of
3507the RLSA Interagency Technical Advisory Team
3513to discuss and evaluate the notification and
3520site visit. The Department may also request
3527a conference with the county's(ies')
3532staff(s) to discuss issues and questions
3538that have arisen as a result of the site
3547visit, comments from members of the
3553Interagency Technical Advisory Team and
3558other stakeholders, and the Department's
3563evaluation of the RLSA proposal.
3568(d) Not later than 60 days following the
3576receipt of the notification of intent to
3583designate or the site visit, whichever is
3590later, the Department shall issue a written
3597notification to the county(ies).
3601(e) The Department's notification shall
3606authorize the county(ies) to proceed with a
3613plan amendment to designate the RLSA or
3620inform the county(ies) of the Department's
3626decision not to authorize. The decision
3632shall be based on the information contained
3639in or gained from the notification, site
3646visit, other agency comments, and other
3652information received. The Department shall
3657authorize the county(ies) to proceed if it
3664determines that the proposed RLSA meets the
3671threshold eligibility requirements of
3675subsection 9J-5.026(4), F.A.C. and that
3680there is a reasonable likelihood that the
3687RLSA will further the principles of rural
3694sustainability. If the Department decides
3699to authorize the county(ies) to proceed with
3706a plan amendment to designate a RLSA, the
3714notification will set forth the facts on
3721which the authorization is based, and may
3728include recommendations to the county(ies)
3733regarding the RLSA. The notification will
3739not guarantee that a comprehensive plan
3745amendment(s) to designate a RLSA will be
3752found in compliance by the Department. It
3759will only constitute the Department's
3764authorization to designate a RLSA if the
3771necessary comprehensive plan amendment(s)
3775are adopted and found in compliance pursuant
3782to Section 163.3184, F.S. If the Department
3789decides not to authorize the county(ies) to
3796proceed with a plan amendment to designate a
3804RLSA, the agency's notification will explain
3810the reasons for the decision.
3815(5) Amendment to the Comprehensive Plan:
3821If authorized to proceed, the county(ies)
3827may prepare and process a plan amendment(s)
3834that will be reviewed by the Department
3841pursuant to Section 163.3184, F.S. The
3847county(ies) may, in preparing the plan
3853amendment(s), establish a local visioning
3858process to facilitate the development of a
3865RLSA plan amendment. The Department
3870encourages the county(ies) to seek and
3876utilize technical assistance from the
3881members of the RLSA Interagency Technical
3887Advisory Team in preparing a RLSA plan
3894amendment.
389533. Sections 120.52(8)(b) and 120.54(3)(a)1., Florida
3901Statutes, require that the agency list in the rulemaking
3910notice the purported rulemaking authority for the proposed
3918rule. To comply with this requirement, the Department's
3926rulemaking notice cites Sections 163.3177(9) and (11)(h),
3933Florida Statutes, as the specific authority for adopting the
3942rule and Section 163.3177(11)(d)1., Florida Statutes, as the law
3951being implemented. In its Proposed Final Order, the Department
3960relies on Section 163.3177(11)(h) as the specific statutory
3968authority for rulemaking. It provides that the Department "may
3977adopt rules necessary to implement the provisions of [subsection
3986163.3177(11)]," including the RLSA provisions found in Section
3994163.3177(11)(d). On the other hand, the law being implemented
4003is quite lengthy and reads as follows:
4010(11)(d)1. The department, in cooperation
4015with the Department of Agriculture and
4021Consumer Services, the Department of
4026Environmental Protection, water management
4030districts, and regional planning councils,
4035shall provide assistance to local
4040governments in the implementation of this
4046paragraph and rule 9J-5.006(5)(l), Florida
4051Administrative Code. Implementation of
4055those provisions shall include a process by
4062which the department may authorize local
4068governments to designate all or portions of
4075lands classified in the future land use
4082element as predominately agriculture, rural,
4087open, open-rural, or a substantively
4092equivalent land use, as a rural land
4099stewardship area within which planning and
4105economic incentives are applied to encourage
4111the implementation of innovative and
4116flexible planning techniques, including
4120those contained herein and in rule 9J-
41275.006(5)(l), Florida Administrative Code.
4131Assistance may include, but is not limited
4138to:
4139a. Assistance from the Department of
4145Environmental Protection and water
4149management districts in creating the
4154geographic information systems land cover
4159database and aerial photogrammetry needed to
4165prepare for a [RLSA];
4169b. Support for local government
4174implementation of rural land stewardship
4179concepts by providing information and
4184assistance to local governments regarding
4189land acquisition and assistance to local
4195governments regarding land acquisition
4199programs that may be used by the local
4207government programs that may be used by the
4215local government or landowners to leverage
4221the protection of greater acreage and
4227maximize the effectiveness of rural land
4233stewardship areas; and
4236c. Expansion of the role of the Department
4244of Community Affairs as a resource agency to
4252facilitate establishment of [RLSAs] in
4257smaller rural counties that do not have the
4265staff or planning budgets to create a
4272[RLSA].
427334. Proposed rule 9J-11.023 describes in detail the
4281process by which a local government is to request Department
4291authorization to designate a RLSA. At issue here are provisions
4301in subsections (2), (4), and (5) of the rule that require a
4313local government wishing to designate an RLSA to conduct a
4323public workshop; cover particular topics during the workshop;
4331host a site visit with designated agencies; and based on the
4342information gathered from this process to then allow the
4351Department, in its discretion, to either authorize or not
4360authorize the local government to begin to prepare and process
4370an RLSA amendment. The latter decision is based on whether the
4381local government has shown "a reasonable likelihood that the
4390RLSA will further the principles of rural sustainability."
4398Petitioners contend that there is no specific grant of
4407rulemaking authority that authorizes the Department to mandate
4415these procedures in the rule or to prevent a local government
4426from proposing and processing an RLSA plan amendment. Instead,
4435they contend that the enabling statute only allows the
4444Department to promulgate rules that are "necessary" to implement
4453the RLSA program, those being a requirement that the county
4463provide notice to the Department that it intends to propose a
4474RLSA plan amendment and a description of the subsequent review
4484process by the Department to determine whether the amendment is
4494in compliance.
449635. Section 163.3177(11)(d)1., Florida Statutes,
4501authorizes the Department to provide "assistance to local
4509governments in the implementation of this paragraph and rule 9J-
45195.006(5)(l)." (The cited rule, among other things, encourages
"4527innovative and flexible planning and development strategies"
4534that allow conversion of rural and agricultural lands to other
4544uses.) The statute also includes specific authority to
4552establish a "process by which the department may authorize local
4562governments to designate all or portions of lands classified in
4572the future land use element (FLUE] as predominately
4580agricultural, rural, open, open-rural, or a substantively
4587equivalent land use, as a [RLSA] . . . ." The rule accomplishes
4600this purpose by requiring state agency technical assistance,
4608establishing the process for a workshop and site visit,
4617requiring that the county's notification describe the basis for
4626the designation, requiring broad public participation, and
4633assuring, by approval or disapproval of the county's preliminary
4642proposal, that the proposed RLSA will promote the principles of
4652rural sustainability. Notably, had the Legislature intended
4659this authorization process to be the same as the existing
4669compliance review process for conventional plan amendments,
4676there would be no need for this statutory language.
468536. The proposed rule does not exceed the Department's
4694grant of rulemaking authority.
4698b. Do certain provisions within proposed rule 9J-5.026(7)
4706and (9) enlarge, modify, or contravene the law implemented?
471537. Petitioners further contend that proposed rules 9J-
472319. enlarge, modify, or contravene the specific provisions of
4732law implemented. The challenged rules read as follows:
47409J-5.026 Rural Land Stewardship Area (RLSA)
4746* * *
4749(7) Data and Analysis Requirements.
4754* * *
4757(b) Population Projections and Analysis of
4763Land Use Need. Population projections and
4769analysis of land use need shall be prepared
4777in accordance with Rule 9J-5.006, F.A.C.,
4783with the following modifications: The
4788amount and extent of allowable development
4794in the RLSA must be based on the 25-year or
4804greater projected population of the RLSA;
4810the anticipated effect of the proposed RLSA
4817must receiving areas, including any
4822committed catalyst projects, infrastructure
4826improvements, or other projects that would
4832attract and support development; the
4837furtherance of the statutory principles of
4843rural sustainability; and the goals,
4848objectives, and policies of the RLSA plan
4855amendment.
4856* * *
4859(c)4. Land development and other conversion
4865threats whereby rural resources under threat
4871require more incentives via stewardship
4876credits and less threatened resources
4881require lesser incentives. This includes
4886the future threat of low-density sprawl on
4893lands within and surrounding Eligible
4898Receiving Areas; and
4901* * *
49046. Values shall be assigned to all of
4912the land in the RLSA. The highest values
4920shall be assigned to the most
4926environmentally valuable land, and to open
4932space and agricultural land where the
4938retention of such lands is a priority. The
4946assignment of values shall be submitted with
4953the RLSA plan amendment as part of the
4961supporting data and analysis.
4965* * *
4968(8) Stewardship Credit System Criteria.
4973(a) Each credit shall represent a defined
4980number of residential units or a defined
4987amount of non-residential square footage.
4992The credit transferee may decide whether to
4999use the credit for a residential or non-
5007residential use in accordance with the land
5014use standards established for the Designated
5020Receiving Area.
5022* * *
5025(9) Goals, Objectives, Policies, and Map.
5031* * *
5034(a) The goals, objectives, and policies
5040shall include the following:
5044* * *
50473. Identification of the innovative
5052planning and development strategies to be
5058used within the RLSA, and a process for
5066implementing the strategies, including the
5071adoption of implementing plan amendments,
5076land development regulations, and the
5081issuance of development orders. The process
5087shall include provision for the Department's
5093review of a proposed land development
5099regulation to designate a receiving area for
5106consistency with the RLSA plan amendment.
5112* * *
51156. A requirement that Eligible Receiving
5121Areas shall be located on land that is
5129suitable for development and have the lowest
5136land values based on the land values
5143analysis conducted pursuant to paragraph
5148(7)(c).
5149* * *
515218. Policies for new towns which comply
5159with the following:
5162a. As required by subsection 9J-5.003(80)
5168and paragraph 9J-5.006(5)(1), F.A.C., a new
5174town shall be designated on the future land
5182use map. A new town shall be located within
5191a Designated Receiving Area. The plan
5197amendment designating a new town shall
5203include a master development plan that
5209establishes the size of the new town, the
5217amount, location, type, density and
5222intensity of development, and the design
5228standards to be utilized in the new town.
5236b. Any increase in the density or intensity
5244of land use required to achieve the proposed
5252new town may occur only through the use of
5261stewardship credits assigned or transferred
5266to the Designated Receiving Area either
5272prior to or subsequent to the designation of
5280the new town on the future land use map.
5289c. New towns shall be surrounded by
5296greenbelts, except for any connecting rural
5302road corridors and to the extent that new
5310towns are adjacent to existing or planned
5317urban development or incorporated areas.
5322d. A future land use map amendment to
5330designate a new town shall be internally
5337consistent with RLSA provisions of the
5343comprehensive plan.
5345e. A future land use map amendment to
5353designate a new town shall be accompanied by
5361an amendment to the capital improvements
5367element to incorporate a financially
5372feasible five-year capital improvements
5376schedule for the public facilities necessary
5382to serve the new town and an amendment to
5391the transportation or traffic circulation
5396element to designate any new rural road
5403corridors required to connect the new town
5410with the rest of the RLSA.
541619. Provisions to ensure that any use of
5424the underlying densities and intensities of
5430land uses assigned to parcels of land by the
5439county comprehensive plan prior to
5444designation of the RLSA furthers the
5450principles of rural sustainability.
5454* * *
545738. The grant of authority for this rule is cited as
5468Sections 163.3177(9) and (11)(h), Florida Statutes, while
5475b),
5476and (d)1., 2., 4., 5., and 6., Florida Statutes, are cited as
5488the laws being implemented.
549239. Subsection (2) of the law being implemented provides
5501that "[c]oordination of the several elements of the local
5510comprehensive plan shall be a major objective of the planning
5520process"; subsection (3) is a lengthy provision requiring that a
5530comprehensive plan include a capital improvements element;
5537paragraph (6)(a) describes in detail the matters that must be
5547contained in the FLUE; subsection (8) requires that all elements
5557of the comprehensive plan be based on data appropriate to the
5568element involved; paragraph (10)(e) generally provides that
5575support data and analysis shall not be subject to the compliance
5586review process, but they must be based on appropriate data;
5596paragraph (11)(a) describes the Legislature's recognition of
5603using innovative planning and development strategies; paragraph
5610(11)(b) expresses the intent of the Legislature to allow the
5620conversion of rural lands to other uses, where appropriate,
5629including urban villages, new towns, satellite communities,
5636area-based allocations, clustering, and open space provisions,
5643mixed-use development, and sector planning; and subparagraphs
5650(11)(d)1., 2., 4., 5., and 6. describe the statutory process for
5661creating an RLSA.
566440. Subsection (7) of the proposed rule sets forth the
5674data and analysis requirements that apply to all RLSA plan
5684amendments, including data and analysis of existing conditions
5692(subparagraphs (7)(a)1. through 10.); population projections and
5699analysis of land use (paragraph (7)(b)); and a land values
5709analysis (subparagraphs (7)(c)1. through 6.).
571441. A land use needs analysis is an integral part of the
5726planning process. Paragraph (7)(b) requires that an RLSA
5734amendment be supported by population projections and an analysis
5743of land use need such that the amount and extent of allowable
5755development must be based on the 25-year or greater projected
5765population of the RLSA, other items, and the anticipated effect
5775of proposed RLSA receiving areas. Petitioners contend that this
5784language contravenes Section 163.3177(11)(d)6., Florida
5789Statutes, amended in 2005, which provides in part that the total
5800amount of development "must enable the realization of the long-
5810term vision and goals for the 25-year or greater projected
5820population of the [RLSA], which may take into consideration the
5830anticipated effect of the proposed receiving areas." See Ch.
58392005-290, Laws of Fla.
584342. Paragraph (7)(b) does not contravene the terms of the
5853statute. As expressed in the law being implemented, the rule
5863directs that the need analysis shall be based upon, among other
5874things, "the anticipated effect of the proposed RLSA receiving
5883areas . . . ."
588843. As a part of the data and analysis to be supplied,
5900paragraph (7)(c) requires that an RLSA amendment be supported by
5910a land values analysis that considers six components described
5919in subparagraphs 1. through 6. This in turn requires a
5929comprehensive analysis of rural resources that exist within the
5938RLSA. Subparagraph 4. requires that the analysis include the
5947development threats to rural resources and that resources under
5956threat of conversion receive more incentives from stewardship
5964credits than resources under less of a threat. Petitioners
5973contend that the rule contravenes Section 163.3177(11)(d)6.j.,
5980Florida Statutes, because it requires a greater value to be
5990assigned to resources under threat of conversion and would
5999result in other rural and natural and agricultural resources
6008which may have a higher intrinsic value being assigned fewer
6018credits. Specifically, the cited statute requires that "the
6026highest number of credits per acre" should be "assigned to the
6037most environmentally valuable land, or, in locations where the
6046retention of open space and agricultural land is a priority, to
6057such lands."
605944. The purpose of the rule is straightforward: to
6068protect those resources that are under the greatest threat and
6078those that are most susceptible to harm over time through land
6089development or other changes, including urban sprawl. Contrary
6097to Petitioners' assertion, the overall analysis does in fact
6106consider all forms of rural resources in determining how the
6116credits will be assigned. The rule implements the statutory
6125directive of attaining the principles of rural sustainability.
613345. Subparagraph (7)(c)6. requires, among other things,
6140that the local government submit as a part of the data and
6152analysis supporting the plan amendment "the assignment of
6160values" of all lands in the RLSA. Petitioners contend that
6170assigning values at the time of the amendment "locks in these
6181values" and would require a subsequent plan amendment in
6190contravention of Section 163.3177(11)(d)6., Florida Statutes,
6196which Petitioners argue contemplates the creation of credits
6204after the adoption of the plan amendment. At hearing, however,
6214the Department explained that because conditions will obviously
6222change over time, the land values analysis will be periodically
6232updated and can be changed without a new plan amendment. In
6243their Proposed Final Order, Petitioners concede that given this
6252interpretation of the rule, it "would not be an invalid exercise
6263of delegated legislative authority." See Petitioners' Proposed
6270Final Order, par. 73.
627446. Paragraph (8)(a) of the proposed rule requires each
6283stewardship credit to represent either a defined number of
6292residential units or non-residential square footage. Once the
6300credits are created in sending areas, they can be transferred to
6311designated receiving areas to be used to enable development that
6321is consistent with the RLSA goals, objectives, and policies.
6330Petitioners contend that the rule will prohibit mixed-use
6338development in contravention of Section 163.3177(11)(d)4.c.,
6344Florida Statutes, which requires that the RLSA goals, policies,
6353and objective provide for a "functional mix of land uses."
636347. There is no prohibition of a mix of land uses. In
6375fact, the opposite is true. As clarified by a Department
6385witness, "a mix is essentially required, as you can see from
6396[sub]paragraph (9)(a)17., which describes that a mix of use must
6406be addressed." Tr. at 273. The rule does not contravene the
6417statute.
641848. Subsection (9) of the proposed rule generally requires
6427that the RLSA plan amendment contain goals, objectives,
6435policies, and a map. Subparagraphs (9)(a)1. through 21. require
6444that the goals, objectives, and policies identify the innovative
6453planning and development strategies to be used in the RLSA
6463process, including the adoption of implementing plan amendments,
6471land development regulations, and the issuance of development
6479orders. Petitioners allege that subparagraphs 3., 6., 18., and
648819. enlarge, modify, or contravene the law implemented.
649649. Subparagraph 3. requires "implementing plan
6502amendments" because the Department recognized the fact that the
6511RLSA planning process will consume years or even decades and
6521will require implementing plan amendments to accomplish its
6529purpose. This is especially true here as the RLSA process
6539involves the development of large tracts of land (as much as
6550100,000 acres or more) that will take years or decades to fully
6563implement and build out. At a minimum, under current law, the
"6574implementing plan amendments" will include a capital
6581improvements element annual update; water supply planning, and
6589the designation of new towns. Except for the requirement that
6599an implementing plan amendment designate a new town pursuant to
6609existing Rule 9J-5.003(80), Petitioners agree that the proposed
6617rule is valid. Because the cited existing rule has been
6627determined to be valid, Petitioners' contention is rejected.
6635See Findings 62-65, infra .
664050. Subparagraph 6. provides that the goals, policies, and
6649objectives shall contain "a requirement that the Eligible
6657Receiving Areas shall be located on land that is suitable for
6668development and have the lowest land values on the land values
6679analysis conducted pursuant to paragraph (7)(c)." Petitioners
6686contend that this provision limits the flexibility of local
6695governments to determine the best location for Eligible
6703Receiving Areas and therefore contravenes the provisions in
6711various parts of Section 163.3177, Florida Statutes, that
6719emphasize flexibility.
672151. The rule implements the principles of rural
6729sustainability contained in Section 163.3177(11)(d)2., Florida
6735Statutes. Only by directing development to land with the lowest
6745environmental, agricultural, and rural resource value will an
6753RLSA protect ecosystems, habitat, natural resources, and the
6761agricultural economy. The rule does not contravene this
6769statute.
677052. Subparagraph 18. requires an RLSA plan amendment to
6779include policies for "new towns," including a requirement that a
6789new town be designated on the FLUM. Petitioners contend that
6799the requirement to designate a new town on the FLUM contravenes
6810Section 163.3177(11)(4)(d)4., Florida Statutes, which provides
6816for the implementation of the innovative planning and
6824development strategies included in existing Rule 9J-5.006(5)(l)
6831through zoning and land development regulations. At hearing,
6839Petitioners narrowed their argument to this one feature in the
6849rule. Because the Department may lawfully require that new
6858towns be designated on the FLUM, subparagraph 18. is consistent
6868with the statute implemented. See Findings 62-65, infra .
687753. Subparagraph 19. requires that RLSA plan amendments
6885contain goals, objectives, and policies "to ensure that any use
6895of the underlying densities and intensities of land uses
6904assigned to parcels of land by the county comprehensive plan
6914prior to designation of the RLSA furthers the principles of
6924rural sustainability." Petitioners contend this provision
6930contravenes Section 163.3177(11)(d)6., Florida Statutes, because
6936it "impinges on existing land use rights which is contrary to
6947one of the statutory principles of rural sustainability, namely
6956the 'restoration and maintenance of the economic value
6964associated with rural lands.'" The rule, however, furthers the
6973principles of rural sustainability, as required by Section
6981163.3177(11)(d)1., Florida Statutes, since it requires that all
6989lands within an RLSA, whether or not in a Designated Receiving
7000Area, be developed in a manner that furthers those principles.
7010It does not contravene the cited statute.
701754. Petitioners also contend that subparagraph 19.
7024contravenes Section 163.3161(9), Florida Statutes, which
7030requires, among other things, that all programs be applied "with
7040sensitivity for private property rights and not be unduly
7049restrictive." Petitioners surmise that the rule may operate to
7058displace underlying density within the RSLA regardless of the
7067use of the RLSA credit system. However, the rule does not
7078displace any underlying density; it only requires that
7086underlying rights be exercised consistent with the RLSA. More
7095specifically, existing densities may be used in any manner that
7105furthers the principles without displacing any of those
7113densities. The rule does not contravene either statute.
7121c. Is proposed rule 9J-5.026(3) vague and does it have
7131inadequate standards for agency decisions?
713655. Petitioners next contend that subsection (3) of
7144proposed rule 9J-5.026, and specifically certain words within
7152the definition of the term "greenbelt," are vague and fail to
7163establish adequate standards for agency decisions. That
7170provision reads as follows:
71749J-5.026 Rural Land Stewardship Area (RSLA)
7180* * *
7183(3) Definitions
7185* * *
7188(d) "Greenbelt" means a border of
7194permanently undeveloped land sufficient in
7199size to effectively preclude the expansion
7205of urban development into the surrounding
7211rural lands and to provide an effective
7218buffer to protect the surrounding rural
7224resources from development impacts.
722856. A greenbelt is an undeveloped area that surrounds an
7238urban area, a new town, or other urban development and is meant
7250to separate the urban developed area from the surrounding area
7260to provide a border that protects surrounding rural lands from
7270urban development. Petitioners contend that the use of the
7279adjectives "sufficient," "effectively," and "effective" to
7285describe the greenbelt buffer are vague and lack standards to
7295guide agency determinations.
729857. In common usage, the word "sufficient" means that the
7308greenbelt is sufficient in size to accomplish its purpose of
7318precluding the expansion of urban development into the
7326surrounding rural lands. Similarly, the word "effectively"
7333means that the use or creation of a buffer to protect urban
7345encroachment on rural lands will be accomplished in an effective
7355manner. Likewise, the word "effective" simply means that the
7364greenbelt achieves the purpose of creating a buffer. These
7373phrases are easily understood by persons of ordinary
7381intelligence, particularly when read in context with other
7389provisions of the rule. See , e.g. , Cole Vision Corp., et al. v.
7401Dept. of Bus. and Prof. Reg. , 688 So. 2d 404, 410 (Fla. 1st DCA
74151997).
741658. Petitioners contend, however, that the rule fails to
7425explicitly include the standard that site-specific data would be
7434considered in determining the "sufficiency" of a buffer.
7442However, this level of detail is not needed since site-specific
7452information is typically considered and applied by the local
7461government and Department through the planning process and might
7470include, for example, the nature of the urban area, the
7480potential impacts if the urban area is extended, the nature of
7491the surrounding land, and other similar factors. The rule is
7501not so vague or lacks sufficient standards as to be invalid.
7512d. Is proposed rule 9J-5.026(9)(a)18. arbitrary ?
751859. Petitioners further contend that subparagraph
7524(9)(a)18. of proposed rule 9J-5.026 is arbitrary. That rule
7533reads as follows:
753618. Policies for new towns which comply
7543with the following:
7546a. As required by subsection 9J-5.003(80)
7552and paragraph 9J-5.006(5)(1), F.A.C., a new
7558town shall be designated on the future land
7566use map. A new town shall be located within
7575a Designated Receiving Area. The plan
7581amendment designating a new town shall
7587include a master development plan that
7593establishes the size of the new town, the
7601amount, location, type, density and
7606intensity of development, and the design
7612standards to be utilized in the new town.
7620b. Any increase in the density or intensity
7628of land use required to achieve the proposed
7636new town may occur only through the use of
7645stewardship credits assigned or transferred
7650to the Designated Receiving Area either
7656prior to or subsequent to the designation of
7664the new town on the future land use map.
7673c. New towns shall be surrounded by
7680greenbelts, except for any connecting rural
7686road corridors and to the extent that new
7694towns are adjacent to existing or planned
7701urban development or incorporated areas.
7706d. A future land use map amendment to
7714designate a new town shall be internally
7721consistent with RLSA provisions of the
7727comprehensive plan.
7729e. A future land use map amendment to
7737designate a new town shall be accompanied by
7745an amendment to the capital improvements
7751element to incorporate a financially
7756feasible five-year capital improvements
7760schedule for the public facilities necessary
7766to serve the new town and an amendment to
7775the transportation or traffic circulation
7780element to designate any new rural road
7787corridors required to connect the new town
7794with the rest of the RSLA.
780060. As noted earlier, this rule sets forth the
7809requirements for policies in the RLSA plan amendment that are
7819applicable to new towns. Petitioners contend that the rule is
7829arbitrary because it "selectively emphasizes" a new town as only
7839one of several innovative and flexible planning strategies set
7848forth in existing Rule 9J-5.006(5)(l).
785361. To be arbitrary, a rule must not be supported by logic
7865or the necessary facts. See § 120.52(8)(e), Fla. Stat. Here,
7875the more persuasive evidence shows that new towns are much
7885larger development types; they are more intense than other
7894development forms; and they will likely generate greater
7902impacts. In an RLSA, they take on even more significance since
7913the planning goal is to further the principles of rural
7923sustainability. Collectively, these factors form a sufficient
7930basis and rationale for giving new towns different treatment
7939than other development forms that are smaller, have fewer uses,
7949are less intense, and are more likely to have lesser impacts.
7960The proposed rule is not arbitrary.
7966e. Does existing Rule 9J-5.003(80) contravene the specific
7974provisions of law implemented?
797862. Finally, Petitioners have challenged existing Rule 9J-
79865.003(80), which became effective in 1994, on the ground that it
7997contravenes the specific provisions of law implemented. That
8005rule defines the term "new town" as follows:
8013(80) "New town" means a new urban activity
8021center designated on the future land use map
8029and located within a rural area, distinct
8036and geographically separated from existing
8041urban areas and other new towns. A new town
8050is of sufficient size, population and land
8057use composition to support a variety of
8064economic and social activities consistent
8069with an urban area designation. New towns
8076include basic economic activities; all major
8082land use categories; and a centrally
8088provided full range of public facilities and
8095services. New towns are based on a master
8103development plan.
810563. The specific authority for the rule, when adopted, was
8115Section 163.3177(9) and (10), while the law being implemented
8124was identified as Sections 163.3177 and 163.3178, Florida
8132Statutes. Because Section 163.3178 involves coastal management,
8139and a new town would probably not be located in a coastal zone,
8152it has marginal relevance to this proceeding. The Department
8161relies principally on Section 163.3177(6)(a), Florida Statutes,
8168which requires, among other things, that "various categories of
8177land use shall be shown on a land use map or map series." 6
819164. The existing definition provides, in part, that a new
8201town will include "all major land use categories, with the
8211possible exception of agricultural and industrial." Because
8218they include numerous land use categories, new towns are by
8228definition a mixed-use land use category. See Fla. Admin. Code
8238R. 9J-5.006(4)(c). Mixed-use land use categories must be
8246designated on the FLUM. See § 163.3177(6)(a), Fla. Stat.("The
8256future land use plan may designate areas for future planned
8266development use involving combinations of types of uses").
827565. As noted above, a new town is recognized in existing
8286Rule 9J-5.006(5)(l) as an innovative and flexible planning
8294option. Because the Legislature referenced this rule provision
8302with approval four times in the RLSA statute, it must be
8313presumed that the Legislature was expressing approval of the
8322existing definition with the mapping requirement. See
8329§§ 163.3177(11)(d)1. (two separate references);
8334contravene the statute being implemented.
8339CONCLUSIONS OF LAW
834266. The Division of Administrative Hearings has
8349jurisdiction over this matter pursuant to Sections 120.56,
8357120.569, and 120.57(1), Florida Statutes.
836267. Petitioners have challenged the proposed rules in
8370accordance with the definition of "invalid exercise of delegated
8379legislative authority" in Section 120.52(8)(b), Florida
8385Statutes, which provides:
8388(8) "Invalid exercise of delegated
8393legislative authority" means action which
8398goes beyond the powers, functions, and
8404duties delegated by the Legislature. A
8410proposed or existing rule is an invalid
8417exercise of delegated legislative authority
8422if any one of the following applies:
8429(a) The agency has materially failed to
8436follow the applicable rulemaking procedures
8441or requirements set forth in this chapter;
8448(b) The agency has exceeded its grant of
8456rulemaking authority, citation to which is
8462required by s. 120.54(3)(a)1.;
8466(c) The rule enlarges, modifies, or
8472contravenes the specific provisions of law
8478implemented, citation which is required by
8484s. 120.54(3)(a)1;
8486(d) The rule is vague, fails to establish
8494adequate standards for agency decisions, or
8500vests unbridled discretion in the agency;
8506(e) The rule is arbitrary or capricious. A
8514rule is arbitrary if it is not supported by
8523logic or the necessary facts; a rule is
8531capricious if it is adopted without thought
8538or reason or is irrational; or
8544(f) The rule imposes regulatory costs on
8551the regulated person, county or city which
8558could be reduced by the adoption of less
8566costly alternatives that substantially
8570accomplish the statutory directives.
857468. In a proceeding to challenge a proposed rule, the
8584petitioner has the burden of going forward initially with proof
8594that supports the allegations in the petition. The agency then
8604has the burden to prove by a preponderance of the evidence that
8616the proposed rule is not an invalid exercise of delegated
8626legislative authority as to the objections raised. See
8634§ 120.56(2), Fla. Stat.; St. Johns River Water Management
8643District v. Consolidated-Tomoka Land Co. et al. , 717 So. 2d 72,
865476 (Fla. 1st DCA 1998). The proposed rule is not presumed to be
8667valid or invalid. See § 120.56(2)(c), Fla. Stat. When an
8677existing rule is challenged, a petitioner has the burden of
8687proving by a preponderance of the evidence that the existing
8697rule is an invalid exercise of delegated legislative authority.
8706See § 120.56(3), Fla. Stat.
871169. Section 120.52(8)(b), Florida Statutes, states that a
8719proposed rule is invalid where "[t]he agency has exceeded its
8729grant of rulemaking authority, citation to which is required
8738. . . ." The same statute provides a set of general standards
8751applicable to all subsections in determining rule validity.
8759These standards are contained in the closing paragraph of the
8769statute (and Section 120.536(1), Florida Statutes) and read as
8778follows:
8779A grant of rulemaking authority is necessary
8786but not sufficient to allow an agency to
8794adopt a rule; a specific law to be
8802implemented is also required. An agency may
8809adopt only rules that implement or interpret
8816the specific powers and duties granted by
8823the enabling statute. No agency shall have
8830authority to adopt a rule only because it is
8839reasonably related to the purpose of the
8846enabling legislation and is not arbitrary
8852and capricious and is within the agency's
8859class of powers and duties, nor shall an
8867agency have the authority to implement
8873statutory provisions setting forth general
8878legislative intent or policy. Statutory
8883language granting rulemaking authority or
8888generally describing the powers and
8893functions of any agency shall be construed
8900to extend no further than implementing or
8907interpreting the specific powers and duties
8913conferred by the same statute.
891870. Under these general standards, the primary issue is
"8927whether the statute contains a specific grant of legislative
8936authority for the rule, not whether the grant of authority is
8947specific enough." Southwest Fla. Water Management District, et
8955al. v. Save the Manatee Club, Inc., et al. , 773 So. 2d 594, 599
8969(Fla. 1st DCA 2000). A rule must be based on an explicit power
8982or duty identified in the enabling statute. Id. at 599. If it
8994does not implement or interpret a specific power or duty
9004conferred by the statute, the rule is invalid. Id. at 600. At
9016the same time, a rule may not be invalidated simply because the
9028governing statute, as opposed to the challenged rule, confers
9037discretion upon the agency. Fla. Public Service Comm., et al.
9047v. Fla. Waterworks Association, et al. , 731 So. 2d 836, 843
9058(Fla. 1st DCA 1999).
906271. For the reasons given in the Findings of Fact, the
9073preponderance of the evidence supports a conclusion that
9081subsections (2), (4), and the first four words of (5) of
9092proposed rule 9J-11.023 do not exceed the Department's grant of
9102rulemaking authority.
910472. A proposed rule may be invalidated if the "rule
9114enlarges, modifies, or contravenes the specific provisions of
9122law implemented . . . ." See § 120.52(8)(c), Fla. Stat. For
9134the reasons given in the Findings of Fact, the preponderance of
9145the evidence supports a conclusion that proposed rules 9J-
9154and existing Rule 9J-5.003(80) do not enlarge, modify, or
9163contravene the statutes being implemented.
916873. A rule is arbitrary if it is not supported by logic or
9181necessary facts, while a rule is capricious if it is adopted
9192without thought or reason. See § 120.52(8)(e), Fla. Stat. The
9202burden of proving that the challenged provisions are neither
9211arbitrary nor capricious is upon the Department. Consolidated-
9219Tomoka at 77. For the reasons given in the Findings of Fact,
9231the preponderance of the evidence supports a conclusion that
9240proposed rule 9J-5.026(9)(a)18. is not arbitrary.
924674. Finally, a proposed rule may be invalidated if it is
9257vague or fails to establish adequate standards for the agency.
9267See § 120.52(8)(d), Fla. Stat. For the reasons given in the
9278Findings of Fact, proposed rule 9J-5.026(3) is not so vague or
9289lacks adequate standards for a Department decision as to violate
9299this requirement.
9301Based on the foregoing Findings of Fact and Conclusions of
9311Law, it is
9314ORDERED that the Petition challenging proposed rules 9J-
9322(7)(c)4., 6., (8)(a), and (9)(a)3., 6., 18. and 19.; 9J-
93325.026(3); and existing Rule 9J-5.003(80) is dismissed.
9339DONE AND ORDERED this 14th day of September, 2009, in
9349Tallahassee, Leon County, Florida.
9353S
9354DONALD R. ALEXANDER
9357Administrative Law Judge
9360Division of Administrative Hearings
9364The DeSoto Building
93671230 Apalachee Parkway
9370Tallahassee, Florida 32399-3060
9373(850) 488-9675 SUNCOM 278-9675
9377Fax Filing (850) 921-6847
9381www.doah.state.fl.us
9382Filed with the Clerk of the
9388Division of Administrative Hearings
9392this 14th day of September, 2009.
9398ENDNOTES
93991/ In the Pre-Hearing Stipulation, or during the hearing,
9408Petitioners withdrew their allegations that proposed rules 9J-
94165.026(7)(b) and (9)(a)10. were vague, and that proposed rules
94259J-5.026(9)(a)17. and 21. enlarged, modified, or contravened the
9433specific provisions of law being implemented.
94392/ Except where otherwise noted, all references are to the 2008
9450version of the Florida Statutes.
94553/ In their Petition and paragraph 19 of their Proposed Final
9466Order, Petitioners argue that proposed rule 9J-11.023 in its
9475entirety is an invalid exercise of delegated legislative
9483authority. In paragraph 15 of their Proposed Final Order,
9492however, they assert only that subsections (2), (4), and (5) are
9503invalid. In the closing paragraph of their Proposed Final
9512Order, they request that subsections (2) and (4) and "that part
9523of (5) which states 'If authorized to proceed'" be declared
9533invalid. Given these statements, only subsections (2), (4), and
9542the first four words in subsection (5) will be addressed.
95524/ At hearing, the Department filed a Motion in Limine (Motion)
9563to exclude all evidence regarding an allegation by Petitioners
9572that paragraph (7)(b) enlarges, modifies, or contravenes the law
9581being implemented on the ground this allegation was not raised
9591as a factual dispute in the initial pleading. Petitioners
9600included this issue, however, in the Joint Pre-Hearing
9608Stipulation on the theory that it was implicitly raised in
9618another part of the Petition. A ruling on the Department's
9628Motion was reserved and evidence on the issue was presented
9638subject to the Department's objection. After the hearing was
9647concluded, Petitioners filed a Motion to Conform the Pleadings
9656to the evidence presented at hearing, which is opposed by the
9667Department. This type of relief is not sanctioned by the
9677Uniform Rules of Procedure, but rather is derived from Florida
9687Rule of Civil Procedure 1.190, which was not adopted for use in
9699administrative proceedings. The Motion in Limine is granted.
9707Even so, for purposes of appellate review, if appropriate,
9716findings relative to this issue are included in this Final
9726Order. See Findings 40-42, infra .
97325/ A majority of Section 163.3177(9), Florida Statutes,
9740involves the original 1986 promulgation of minimum criteria
9748rules for the review and determination of compliance of local
9758government comprehensive plans with the Growth Management Act
9766and is, therefore, inapplicable here. The subsection also
9774contains a provision that the Department "may adopt procedural
9783rules that are consistent with [§ 163.3177] and chapter 120 for
9794the review of local government comprehensive plan elements."
9802Because proposed rule 9J-11.023 does not directly address the
9811review of local government comprehensive plans, this portion of
9820the statute also appears to be inapplicable here.
98286/ That portion of Section 163.3177(6)(a), Florida Statutes
9836(1993), which the rule implemented when it became effective in
98461994, has not been changed in any material respect since that
9857time.
9858COPIES FURNISHED:
9860Gary K. Hunter, Jr., Esquire
9865Hopping Green & Sams, P.A.
9870Post Office Box 6526
9874Tallahassee, Florida 32314-6526
9877Shaw P. Stiller, General Counsel
9882Department of Community Affairs
98862555 Shumard Oak Boulevard
9890Tallahassee, Florida 32399-2100
9893F. Scott Boyd, Executive Director and
9899General Counsel
9901Joint Administrative Procedures Committee
9905Room 120, Holland Building
9909Tallahassee, Florida 32399-1300
9912Liz Cloud, Chief
9915Bureau of Laws and Administrative Code
9921Department of State
9924R.A. Gray Building, Suite 101
9929Tallahassee, Florida 32399-0250
9932NOTICE OF RIGHT TO APPEAL
9937A party who is adversely affected by this Final Order is
9948entitled to judicial review pursuant to Section 120.68, Florida
9957Statutes. Review proceedings are governed by the Florida Rules
9966of Appellate Procedure. Such proceedings are commenced by
9974filing the original notice of appeal with the Clerk of the
9985Division of Administrative Hearings and a copy, accompanied by
9994filing fees prescribed by law, with the District Court of
10004Appeal, First District, or with the District Court of Appeal in
10015the Appellate District where the party resides. The notice of
10025appeal must be filed within 30 days of rendition of the order to
10038be reviewed.
- Date
- Proceedings
- PDF:
- Date: 04/01/2010
- Proceedings: Transmittal letter from Claudia Llado forwarding the two-volume Transcript along with Final Hearing Exhibits, to the agency.
- PDF:
- Date: 08/27/2009
- Proceedings: Respondent Department of Community Affairs' Notice of Withdrawal of Motion to Strike Petitioners' Response to Motion in Limine filed.
- PDF:
- Date: 08/20/2009
- Proceedings: Department of Community Affairs' Response to Motion to Conform the Pleadings filed.
- PDF:
- Date: 08/14/2009
- Proceedings: Respondent Department of Community Affairs' Notice of Filing Proposed Final Order filed.
- PDF:
- Date: 08/13/2009
- Proceedings: Petitioners' Response to Department's Motion in Limine and Petitioners' Motion to Conform the Pleadings filed.
- Date: 07/28/2009
- Proceedings: Transcript of Proceedings (Volumes I&II) filed.
- Date: 07/14/2009
- Proceedings: CASE STATUS: Hearing Held.
- PDF:
- Date: 07/07/2009
- Proceedings: Notice of Filing Exhibits in Support of Petitioners' Petition for Administrative Hearing filed.
- PDF:
- Date: 06/26/2009
- Proceedings: Notice of Hearing (hearing set for July 14, 2009; 9:00 a.m.; Tallahassee, FL).
Case Information
- Judge:
- D. R. ALEXANDER
- Date Filed:
- 06/24/2009
- Date Assignment:
- 06/25/2009
- Last Docket Entry:
- 04/01/2010
- Location:
- Tallahassee, Florida
- District:
- Northern
- Agency:
- Department of Community Affairs
- Suffix:
- RP
Counsels
-
Gary K. Hunter, Jr., Esquire
Address of Record -
Shaw P. Stiller, Esquire
Address of Record -
Gary K Hunter, Jr., Esquire
Address of Record