89-003566RP Department Of Community Affairs vs. Withlachoochee Regional Planning Council Status: Closed DOAH Final Order on Monday, October 30, 1989.

Summary: Regional planning council's proposed rule on resource extraction inconsis- tent with the state comprehensive plan and therefore invalid.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF COMMUNITY AFFAIRS, )

)

Petitioner, )

)

vs. ) CASE No. 89-3566RP

)

WITHLACOOCHEE REGIONAL PLANNING )

COUNCIL, )

)

Respondent. )

___________________________________)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly

designated Hearing Officer, William J. Kendrick, held a formal hearing in the

above-styled case on August 4, 1989, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Richard Grosso, Esquire

Department of Community Affairs

2740 Centerview Drive

Tallahassee, Florida 32399-2100

For Respondent: Phil Trovillo, Esquire

Suite 8

1107 East Silver Springs Boulevard

Ocala, Florida 32670

STATEMENT OF THE ISSUES

The issues for determination are whether petitioner, Department of

Community Affairs, has standing to maintain this action, and whether the

respondent's, Withlacoochee Regional Planning Council's, proposed amendments to

Rule 29E-11.001, Florida Administrative Code, constitute an invalid exercise of

delegated legislative authority.

PRELIMINARY STATEMENT

This is a rule challenge brought under the provisions of Sections 120.54(4)

and 186.508(3), Florida Statutes, to challenge the validity of respondent's

proposed amendment of its regional policy plan. The gravamen of petitioner's

challenge is its contention that the proposed amendments are inconsistent with

the state comprehensive plan, and that the amendments fail to establish adequate

standards for the Commission's decisions or vest unbridled discretion in the

Commission

At hearing, the petitioner called as witnesses: Charles Harwood; Bob Nave;

Tom Beck; Greg Daugherty; and Perry Oldenburg, accepted as an expert in wetland

ecology. Petitioner's exhibits 1-6 were received into evidence. Respondent

called Nick Bryant, Ralph Shepard, and Charles Harwood as witnesses.

Respondent's exhibits 1-9 were received into evidence.

The parties declined to file a transcript of the hearing, and were granted

leave until August 28, 1989, to file proposed findings of fact. Accordingly,

the parties waived the requirement that a final order be rendered within thirty

days of the date of hearing. Rule 221-6.031(2), Florida Administrative Code.

The parties' proposed findings are addressed in the appendix to this final

order.

FINDINGS OF FACT

The parties

1. Petitioner, Department of Community Affairs (Department), is the state

land planning agency under the provisions of Chapter 163, Part II, Florida

Statutes, [the "Local Government Comprehensive Planning and Land Development

Regulation Act" (LGCPA)]. As the state land planning agency for the LGCPA, the

Department is charged by law with the duty to provide technical assistance to

local governments in preparing comprehensive plans and with the duty to

ascertain whether local comprehensive plans are in compliance with the

provisions of Chapter 163, Part II, Florida Statutes. Inherent in the

Department's determination of compliance is a finding that the local government

comprehensive plan elements are consistent with the state comprehensive plan and

the appropriate regional policy plan. Where, as here, a comprehensive regional

policy plan is inconsistent with the state comprehensive plan, the performance

of the Department's mandated duty is stymied absent the ability to challenge the

offensive parts of the regional policy plan, and thereby bring the planning

process into harmony. Accordingly, as the state land planning agency charged

with the responsibility of implementing the LGCPA, the Department has a real and

immediate interest in assuring consistency between the state comprehensive plan

and the various regional policy plans.

2. Respondent, Withlacoochee Regional Planning Council (Council), is a

regional planning council established pursuant to Section 186.504, Florida

Statutes, and consists of the Counties of Citrus, Hernando, Levy, Marion, and

Sumter. Rule 29E-1.001, Florida Administrative Code. As a regional planning

council, the Council is charged by law with the duty to develop a comprehensive

regional policy plan that is consistent with, and which furthers, the goals and

policies of the state comprehensive plan. Section 186.507(1), Florida Statutes.

The existent comprehensive regional policy plan and the proposed amendments

3. The Council has, consistent with the requirement of Section 186.507(1),

Florida Statutes, adopted its comprehensive regional policy plan by rule. That

rule, codified as Rule 29E- 11.001, Florida Administrative Code, adopts and

incorporates by reference the Council's comprehensive regional policy plan, with

an effective date of April 13, 1989.

4. On June 9, 1989, the Council duly noticed its intent to amend Rule 29E-

11.001, Florida Administrative Code, and published notice thereof in volume 15,

number 23, of the Florida Administrative Weekly. Pertinent to this case, the

proposed amendments would alter the policies of the Council's comprehensive plan

as they relate to resource extraction (mining) in environmentally sensitive

areas.

5. On June 30, 1989, the Department filed a timely petition with the

Division of Administrative Hearings, pursuant to Section 120.54(4), Florida

Statutes, contending that the proposed amendments to Rule 29E-11.001, Florida

Administrative Code, were an invalid exercise of delegated legislative

authority. The gravamen of the Department's challenge to the validity of the

proposed rule amendments is its contention that the amendments are not

consistent with the state comprehensive plan policies as they relate to mining

in environmentally sensitive areas, and that the amendments fail to establish

adequate standards for the Commission's decisions or vest unbridled discretion

in the Commission.

6. The policies of the state comprehensive plan pertinent to this case, as

set forth in Section 187.201, Florida Statutes, are as follows:

(10) NATURAL SYSTEMS AND RECREATIONAL

LANDS

* * *

(b) Policies -

1. Conserve forests, wetlands, fish,

marine life, and wildlife to maintain their

environmental, economic, aesthetic, and

recreational values.

* * *

3. Prohibit the destruction of

endangered species and protect their

habitats.

* * *

7. Protect and restore the ecological

functions of wetlands systems to ensure their

long-term environmental, economic, and

recreational value.

* * *

(14) Mining -

* * *

(b) Policies -

5. Prohibit resource extraction which

will result in an adverse effect on

environmentally sensitive areas of the state

which cannot be restored.

(Emphasis added)

7. The Council's proposed amendments to Rule 29E-11.001, Florida

Administrative Code (the comprehensive regional policy plan), are hereinafter

set forth, with the proposed amendments in clear text and the existing language

of the rule that is to be amended lined through. In such format, the proposed

amendments to the existing rule that are under challenge in this proceeding

provide as follows:

14.3.1.1. Regional Policy:

Resource extraction which will result in an

adverse effect on environmentally sensitive

areas that cannot be reclaimed or restored to

beneficial use shall be prohibited. Examples

of such environmentally sensitive areas are:

wetlands, rivers, streams, lakes, springs,

coastal floodplains, endangered species

habitat, prime agricultural lands, prime

groundwater recharge areas, and historically

significant sites. (Emphasis added)

Wetlands, rivers, streams, lakes, springs,

coastal, floodplains, endangered species'

habitat, prime agricultural lands, prime

groundwater recharge areas, and historically

significant sites shall be identified and

protected by a prohibition on mining

activities within those areas and the

establishment of buffer zones around them.

Additionally, the Council proposes to amend its implementation strategy as to

Regional Policies 14.3.1.1, 14.3.1.2, and 14.3.1.3, as follows:

GROWTH MANAGEMENT

(1) Local governments with assistance from

other agencies should inventory their

wetlands, rivers, streams, lakes, springs,

coastal floodplains, endangered species'

habitat, prime agricultural lands, prime

groundwater recharge areas, historically

significant sites, and important mineral

reserves.

(2) Local governments should adopt

comprehensive plan amendments and ordinances

that 1) prohibit mining activities in

environmentally sensitive areas if they

cannot be reclaimed or restored to beneficial

use; define buffer zones around the areas and

resources identified above and restrict

mining activities to land outside those

buffers, 2) require identification and

protection of archaeological properties on

sites proposed for mining; 3) restrict the

use of land that contains economically

recoverable mineral deposits and lies outside

environmentally sensitive areas to activities

that will not preclude later extraction of

those minerals. (Emphases added)

INTERGOVERNMENTAL COORDINATION

(1) DNR, GFC, FWS, SCS, DER and WMDs, within

their respective areas of expertise, should

help local governments to identify and map

the above areas and resources and to define

appropriate buffer widths.

8. Contrary to the provisions of the state comprehensive plan which

prohibit resource extraction that will adversely effect environmentally

sensitive areas unless they can be "restored," the proposed amendments would

only prohibit such activities if the environmentally sensitive areas could not

be "reclaimed or restored to beneficial use." The terms "restored" and

"reclaimed," although not defined by the proposed amendments, have commonly

accepted meanings. To restore a site means to put back the same thing that had

previously existed, i.e.: restore the type, nature, and function of the

ecosystem to the condition in existence prior to mining. To reclaim a site is

to alter its character such that beneficial use can be made of it, even though

the character or function of the site may be entirely different from that which

previously existed. To "restore to beneficial use" is a phrase consistent with

the definition of "reclamation," and not consistent with the definition of

"restoration" as that term is commonly defined. Accordingly, it is found that

the proposed amendments to Rule 29E-11.011, Florida Administrative Code, are

patently inconsistent with the policies of the state comprehensive plan that

relate to the protection of environmentally sensitive areas and, more

particularly, the policy of the state comprehensive plan that prohibits resource

extraction in such areas unless they can be restored.

9. Notwithstanding the patent inconsistency between the proposed

amendments and the state comprehensive plan, the Council argued that it

"intends" to interpret the proposed amendment consistent with the state plan.

To this end, the Council offered the testimony of its chairman, Nick Bryant, who

testified that he would interpret the proposed amendment to require that the

post-mining beneficial use be the same beneficial use that existed prior to

mining. The Council's vice chairman, Ralph Shepard, testified, however, that he

would not interpret the proposed amendment to require that the property be

returned to the same character it enjoyed prior to mining, but only that it be

reclaimed to the extent necessary to provide a beneficial use. Under such

interpretation, the proposed amendment would allow, for example, the total

destruction of a wetland by mining even if the net result would be a borrow pit

in which people could swim and water ski.

10. The Council's contention that it would interpret the proposed

amendment consistent with the state plan is not only irrelevant in view of the

patent inconsistency which exists between the proposed amendments and the state

plan, but is also not credible. Rather, the clear impact of the rule and the

Council's "intent" may be readily gleamed from its notice of proposed

rulemaking, federal comparison statement, and economic impact statement. As

stated in the Council's notice of proposed rule making:

PURPOSE AND EFFECT: The rule is being amended

for the purpose of replacing the

Comprehensive Regional Policy Plan (CRPP)

previously adopted by reference, with a new

version in which a policy in the mining

chapter and its associated implementation

strategies have been changed. The effect of

the amendment will be to remove a prohibition

on mining in areas that are environmentally

sensitive or historically significant.

* * *

SUMMARY OF THE ESTIMATE OF ECONOMIC IMPACT:

Opportunities for economic benefit from

resource extraction will be afforded land

owners and the mining industry in

environmentally sensitive areas... Costs

will be borne by the general public as a

result of lost environmental functions and

values.... (Emphasis added)

As stated in the Council's federal comparison statement:

The revised policy is less restrictive

than the current federal wetlands policy of

avoiding impacts where there are

alternatives, and requiring that unavoidable

impacts be fully offset in order to achieve a

goal of no net loss as defined by acreage and

function.

And, as stated in the council's economic impact statement:

A potential for economic benefit from

resource extract ions will be created in

environmentally sensitive areas where the

CRPP restricts other development activities.

Costs will occur in the form of lower water

quality and the loss of wildlife habitat and

other functions presently provided by the

sites where mining will be allowed.

* * *

Expectation of benefits and costs to

affected parties is based on the assumption

that at least some local governments in the

region will choose not to be more stringent

than the CRPP, and will therefore permit

mining where consistency with the Regional

Plan would previously have required its

prohibition.

11. While not conceding that any inconsistency exists between the proposed

amendments and the state comprehensive plan, the Council suggests that, if any

inconsistency exists, other existing policies within its plan obviate any

inconsistency. In support of its argument, the Council points primarily to

policies 14.1.1.1, 14.1.1.3, and 14.3.1.6. An examination of such policies, as

well as the Council's entire comprehensive plan, demonstrates, however, that no

other policy or policies cure the inconsistency that exists between the proposed

amendments and the state comprehensive plan.

CONCLUSIONS OF LAW

12. The Division of Administrative Hearings has jurisdiction over the

parties to, and the subject matter of, these proceedings. Sections 120.54(4)

and 186.508(3), Florida Statutes.

13. Pertinent to this proceeding, Section 120.54(4)(a), Florida Statutes,

provides:

Any substantially affected person may

seek an administrative determination of the

invalidity of any proposed rule on the ground

that the proposed rule is an invalid exercise

of delegated legislative authority.

The Department, a state department created pursuant to Section 120.18, Florida

Statutes, is a person as defined by Section 120.52(13), Florida Statutes.

Accordingly, the Department has standing to maintain this action provided it can

demonstrate that it is substantially affected by the proposed rule

14. To demonstrate that it is substantially affected by the proposed rule,

the Department must establish that, as a consequence of the proposed rule, it

will suffer injury in fact, and that the injury is one that is subject to

protection in the proceeding by virtue of a rule, statute or constitutional

provision. Florida Medical Association, Inc. v. Department of Professional

Regulation, 426 So.2d 1112 (Fla. 1st DCA 1983). Further, the injury must not be

speculative, nonspecific and hypothetical, and lacking in immediacy and reality.

Florida Department of Offender Rehabilitation v. Jerry, 353 So.2d 1230 (Fla. 1st

DCA 1978). Here, for the reasons set forth in the findings of fact, the

Department, as the state land planning agency under the provisions of Chapter

163, Part II, Florida Statutes, has, as a matter of law, demonstrated standing

to challenge a regional comprehensive policy plan that is inconsistent with the

state comprehensive plan.

15. To prevail in this case, the burden is upon the Department to

demonstrate that the proposed rules are an invalid exercise of delegated

legislative authority. An invalid exercise of delegated legislative authority

is defined by Section 120.52(8), Florida Statutes, as follows:

"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 or

more of the following apply:

* * *

(b) The agency has exceeded its grant of

rulemaking authority, citation to which is

required by s. 120.54(7);

(c) The rule enlarges, modifies, or

contravenes, the specific provisions of law

implemented, citation to which is required by

s. 120.54(7);

(d) The rule is vague, fails to

establish adequate standards for agency

decisions, or vests unbridled discretion in

the agency....

16. Pertinent to this case, Section 186.507(1), Florida Statutes,

provides:

A comprehensive regional policy

plan. shall be consistent with and shall

further, the state comprehensive plan; and

shall implement and accurately reflect the

goals and policies of the state comprehensive

plan....

17. As heretofore noted in the findings of fact, the state comprehensive

plan policy on mining "prohibit[s] resource extraction which will result in an

adverse effect on environmentally sensitive areas of the state which cannot be

restored." Section 187.201(14), Florida Statutes. The Council's proposed rules

do not, however, prohibit mining in environmentally sensitive areas that cannot

be "restored" but, rather, only prohibit such activities if the area cannot be

"reclaimed or restored to a beneficial use." Since "reclaimed or restored to a

beneficial use" are not words that are synonymous with "restored," but in fact

impose a significantly lower standard for mining activities in environmentally

sensitive areas, the proposed rules are not consistent with, and do not

implement and accurately reflect the policies of the state comprehensive plan

that relate to the protection of environmentally sensitive areas and, more

particularly, the policy of the state comprehensive plan that prohibits resource

extraction in such areas unless they can be restored.

18. Under the circumstances, it is concluded that the proposed rules are

an invalid exercise of delegated legislative authority. Section 120.52(8)(b),

(c) and (d), Florida Statutes.

CONCLUSION

Based on the foregoing findings of fact and conclusions of law, it is

ORDERED that the proposed amendments to Rule 29E-11.001, Florida

Administrative Code, are invalid.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 30th day of

October 1989.

___________________________________

WILLIAM J. KENDRICK

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 30th day of October 1989.

Appendix

The Department's proposed findings of fact are addressed as follows:

1. Addressed in paragraph 1.

2. Supported by competent proof, but not necessary to the result reached.

3. Addressed in paragraph 2.

4. Supported by competent proof, but not necessary to the result reached.

5. Addressed in paragraph 3.

6. Supported by competent proof, but not necessary to the result reached.

7-9. Addressed in paragraph 1.

10. Supported by competent proof, but not necessary to the result reached.

11-12. Not shown to be relevant.

13. Addressed in paragraph 5.

14. Addressed in paragraph 6.

15-16. Addressed in paragraph 7.

17. Addressed in paragraph 8.

18-21. Addressed in paragraph 10.

22-26. Addressed in paragraph 8.

27-28. Addressed in paragraphs 9 and 10.

29. Addressed in paragraph 2.

30-32. Addressed in paragraphs 8-10, otherwise rejected as not necessary to the

result reached.

33-37. Addressed in paragraph 11.

38. Addressed in paragraphs 8-10.

The Commission's proposed findings of fact are addressed as follows:

1. Rejected as not a finding of fact. Addressed, however, in paragraphs 7-10.

2. Addressed in paragraph 11.

3. Rejected as not supported by competent proof. See paragraphs 9-10.

4. Addressed in paragraph 8.

5. Addressed in paragraphs 7-9.

6. Addressed in paragraph 8.

7. Addressed in paragraphs 8 and 11.

8. Addressed in paragraph 1, and paragraphs 2-3 of the conclusions of law.

9-10. Addressed in paragraphs 6 and 7 of the

conclusions of law.

COPIES FURNISHED:

Richard J. Grosso, Esquire

C. Laurence Keesey, Esquire

Department of Community Affairs

2740 Centerview Drive

Tallahassee, Florida 32399-2100

Phil Trovillo, Esquire

Withlacoochee Regional Planning

Council

1241 Southwest Tenth Street

Ocala, Florida 32674-2798

Thomas G. Pelham, Secretary

Department of Community Affairs

2740 Centerview Drive

Tallahassee, Florida 32399-2100

Liz Cloud, Chief

Bureau of Administrative Code

Room 1802, The Capitol

Tallahassee, Florida 32399-0250

Carroll Webb, Executive Director

Administrative Procedures Committee

120 Holland Building

Tallahassee, Florida 32399-1300 Case No. 89-3566RP

NOTICE OF RIGHT TO JUDICIAL REVIEW

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 ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE

DIVISION OF ADMINISTRATIVE HEARINGS AND A SECOND 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.