90-005337RU Lost Tree Village Corporation vs. Board Of Trustees Of The Internal Improvement Trust Fund Status: Closed DOAH Final Order on Wednesday, May 15, 1991.

Summary: A moratorium denying consideration of applications for use of submerged land is an invalid rule (rev'd 1st DCA June 11, 1992).

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LOST TREE VILLAGE )

CORPORATION, et al., )

)

Petitioners, )

)

vs. ) CASE NO. 90-5337RU

) CASE NO. 90-5367RU

STATE OF FLORIDA, BOARD OF ) CASE NO. 90-5368RU

TRUSTEES OF THE INTERNAL ) CASE NO. 90-5471RU

IMPROVEMENT TRUST FUND, )

)

Respondent, )

)

and )

)

FLORIDA AUDUBON SOCIETY, )

)

Intervenor. )

__________________________________)

FINAL ORDER

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

designated Hearing Officer, Don W. Davis, held a formal hearing in the above-

styled cause on February 11, 1991, in Tallahassee, Florida. The following

appearances were entered:

APPEARANCES

For Petitioner Lost Tree:

Robert A. Routa, Esq.

3000 Independent Square

Jacksonville, FL 32202

For Petitioners Keewaydin Club and Idlewyld Corporation:

Steve Lewis, Esq.

Robert P. Diffenderfer, Esq.

Suite 701

First Florida Bank Building

Tallahassee, FL 32301

For Petitioners Theodore Watrous, Thomas Munz, Warren

Noden, Mariner Properties, and Intervenor Broderick:

Thomas Tomasello, Esq.

P.O. Box 6507

Tallahassee, FL 32314-6507

For Respondent Board Of Trustees:

Kenneth J. Plante, Esq.

Debra W. Schiro, Esq.

Department of Natural Resources

Suite 1003, Douglas Building

3900 Commonwealth Boulevard

Tallahassee, FL 32399-3000

For Intervenor Florida Audubon Society:

Joseph Z. Fleming, Esq.

620 Ingraham Building

25 Southeast Second Avenue

Miami, FL 33131

STATEMENT OF THE ISSUE

At issue is whether a moratorium, adopted by the Board of Trustees of the

Internal Improvement Trust Fund (Board of Trustees), constitutes an invalid

rule. If the moratorium on authorizations for use of sovereignty, submerged

land in connection with development of current unbridged, undeveloped coastal

islands is determined to constitute a rule, the secondary issue to be resolved

is whether the rule is an invalid exercise by the Board of Trustees of delegated

legislative authority.

PRELIMINARY STATEMENT

On August 22, 1989, the Board of Trustees established the moratorium on

further authorizations for use of state-owned submerged lands to facilitate

development of currently unbridged, undeveloped coastal islands.

In August of 1990, Petitioners filed their various petitions challenging

the Board of Trustees' moratorium as an invalid rule. The Petitioners'

challenges were also directed to the Board of Trustees' proposed rule changes to

Rules 18-21.003 and 18-21.004, Florida Administrative Code. Those portions of

the challenges were subsequently withdrawn when the proposed rule amendments

were withdrawn from consideration.

On October 18, 1990, the Florida Audubon Society was granted Intervenor

status on behalf of the Board of Trustees. Roger Broderick was subsequently

granted Intervenor status on behalf of Petitioners.

This matter came on for final hearing on February 11, 1991. At hearing,

the parties stipulated to admission of eight evidentiary exhibits; to not object

to each party's standing; to certain facts; and to submission of this matter for

consideration upon the parties' written submissions.

Counsel for the parties stipulated to waiver of the provisions of Section

120.56(3), Florida Statutes, requiring the issuance of a final order within 30

days of the final hearing. Subsequently, the parties' requested deadline of

April 11, 1991, for submission of proposed findings of fact was granted.

The transcript of the final hearing was filed with the Division Of

Administrative Hearings on February 27, 1990. Proposed findings of fact

submitted by the parties are addressed in the appendix to this final order.

FINDINGS OF FACT

The parties stipulated at the final hearing to the facts set forth in

paragraphs 1-10, below.

Stipulated Facts

1. The parties do not object to the standing of Petitioners and

Intervenors for the limited purposes of this proceeding only and any subsequent

appeal.

2. On August 22, 1989, the Board of Trustees accepted a staff report on

policy and programs affecting Florida's coastal islands. The Board of Trustees

also approved a temporary moratorium on authorizations for use of sovereignty,

submerged land that would facilitate development of currently unbridged,

undeveloped coastal islands until such time as the Division of State Lands of

the Department of Natural Resources (Division) could adopt a policy for such

requests.

3. On December 19, 1989, the Board of Trustees deferred consideration of

an interim policy governing the use of sovereignty, submerged lands adjacent to

unbridged coastal islands.

4. On February 6, 1990, the Board of Trustees voted to again defer

consideration of an interim policy governing the use of sovereignty, submerged

lands adjacent to unbridged coastal islands until after the issue was reviewed

at a Cabinet workshop.

5. On May 8, 1990, the Board of Trustees extended the temporary moratorium

announced on August 22, 1989, and directed staff to begin rule making on a rule

to serve as interim policy until a comprehensive policy and rule governing

coastal islands could be adopted.

6. On June 12, 1990, the Board of Trustees approved a draft of proposed

rules relating to the leasing of state-owned lands adjacent to undeveloped

coastal islands and directed staff to notice the rules for adoption, hold a

series of public hearings and return to the Board of Trustees for final action

by September. The proposed rules (Rules 18-21.003 and 18-21.004, Florida

Administrative Code) were noticed in the Florida Administrative Weekly on August

10, 1990, and public hearings were held in Tallahassee on September 4, 1990, Ft.

Pierce on September 5, 1990, and Naples on September 6, 1990.

7. In August, 1990, petitions were filed challenging the temporary

moratorium as a nonrule rule, and the proposed rules, arguing that the Board of

Trustees' actions constituted an invalid exercise of delegated legislative

authority.

8. On October 9, 1990, the Board of Trustees accepted a status report on

the proposed amendments to Rules 18-21.003 and 18-21.004, Florida Administrative

Code, relating to the management of unbridged coastal islands.

9. On October 23, 1990, the Board of Trustees considered amendments to the

proposed rule based on comments made at the public hearing and written comments

submitted to the agency. However, prior to accepting the proposed changes the

Board of Trustees approved a request by the Governor's Interagency Management

Committee (IMC) for additional time to review the proposed rule amendments. The

IMC considered the proposed amended rule on November 29, 1990. Public comments

were taken at that meeting which resulted in the IMC recommending that further

changes be made to the proposed amended rule.

10. On December 18, 1990, the Board of Trustees approved the withdrawal of

the original rule concerning development of coastal islands, authorized changes

to the proposed rules and directed staff to notice for adoption the proposed

rules as amended. In addition, the Board of Trustees voted to continue the

temporary moratorium until the adoption of a coastal barrier island rule.

Other Facts

11. The initial moratorium applied to those coastal islands subject to

direct or indirect wave, tidal and wind energies and which provide primary or

secondary protection to the mainland. Further, islands were to be considered

undeveloped if unbridged (not connected via bridge to another upland) and either

had no docking facilities authorized by the Trustees, or overall development

density consisted of less than one permanent structure per five acres of upland.

12. On May 8, 1990, the Trustees extended and modified the prior

moratorium. The effective date of the moratorium remained August 22, 1989, and

the following exceptions were created:

Notwithstanding the moratorium, the Board

shall allow the repair or maintenance of

existing utility lines that cross sovereignty

submerged land, so long as such maintenance

and repair do not provide for an upgrade in

capacity to serve additional customers, except

to maintain public safety or as ordered by the

Public Service Commission. The moratorium

shall not prohibit the construction of two-

slip private residential docks meeting the

requirements of Chapter 18-20.004(5)(b),

F.A.C.

13. Notice of the moratorium was not provided and an economic impact

statement was not prepared as required by Section 120.54, Florida Statutes.

Affected persons were not given a point of entry to challenge the moratorium

before it became effective.

14. The moratorium affects sovereignty submerged lands statewide and

affects all applicants who seek use of such land to facilitate development of

undeveloped, unbridged coastal islands.

15. The moratorium is an agency policy statement of general applicability,

which is applied and is intended to be applied with the force and effect of a

rule of law. The moratorium continues in effect at the present time with

general applicability to a statewide class of persons seeking use of state-owned

submerged lands adjacent to unbridged, undeveloped coastal islands as defined in

paragraphs 11. and 12., above.

CONCLUSIONS OF LAW

16. The Division of Administrative Hearings has jurisdiction over the

parties and the subject matter. Section 120.56, Florida Statutes.

17. It is well settled that the Board of Trustees is an agency as that

term is defined in Section 120.52(1)(b), Florida Statutes. DeCarion v. Board of

Trustees, 537 So.2d 1083 (Fla. 1st DCA 1989); Board of Trustees v. Barnett, 533

So.2d 1202 (Fla. 3rd DCA 1988); Department of Natural Resources v. Sailfish Club

of Florida, Inc., 473 So. 2d 261 (Fla. 1st DCA), rehearing den. (1985);

Continental Construction Company v. Board of Trustees, 464 So.2d 204 (Fla. 1st

DCA 1985), pet. for rev. den. 472 So.2d 1180 (Fla. 1985); Brown v. Board of

Trustees, 369 So.2d 640 (Fla. 3rd DCA 1979).

18. Authorized pursuant to Section 253.02(1), Florida Statutes, the Board

of Trustees is not a constitutional body with any unique powers derived from the

constitution. See, Grove Isle Ltd. v. Department of Environmental Regulation,

454 So.2d 571 (Fla. 1st DCA 1984). Further, the Board of Trustees is not exempt

from the operation of Chapter 120, Florida Statutes.

19. The Board of Trustees is charged with administering all state-owned

lands and promulgating rules in regard to that responsibility. Section

253.03(7), Florida Statutes, provides:

The Board of Trustees of the Internal

Improvement Trust Fund is hereby authorized

and directed to administer all state-owned

lands and shall be responsible for the

creation of an overall and comprehensive plan

of development concerning the acquisition,

management, and disposition of state-owned

lands so as to insure maximum benefit and use.

The Board of Trustees of the Internal

Improvement Trust Fund shall adopt rules and

regulations necessary to carry out the

purposes of this act as herein set forth.

(Emphasis added).

20. In furtherance of the statutory directive to promulgate rules, the

Board of Trustees adopted Chapter 18-21, Florida Administrative Code, which

provides that the "management policies, standards and criteria" contained in

Rule 18-21.004 of that Chapter shall be used to ascertain whether to grant

approval to requests for use of sovereignty submerged lands.

21. In pertinent part, Section 120.52(16), Florida Statutes, reads as

follows:

"Rule" means each agency statement of general

applicability that implements, interprets, or

prescribes law or policy or describes the

organization, procedure, or practice

requirements of an agency and includes any

form which imposes any requirement or solicits

any information not specifically required by

statute or by an existing rule. The term also

includes the amendment or repeal of a rule.

22. The moratorium is a statement of general applicability. It has

statewide applicability and governs all applications for the use of sovereignty

submerged land around the defined class of islands. It implements, interprets

or prescribes law or policy by precluding the use, or the consideration of any

application for use, of sovereignty submerged lands around the described class

of islands. Finally, the moratorium "purports in and of itself to create

certain rights and adversely affect others". State Department of Administration

v. Harvey, 356 So.2d 323 at 325. The rights of all applicants for use of

sovereignty submerged lands around these islands is clearly affected by the

Board of Trustee's refusal to process and either grant or deny applications.

23. The adoption of the moratorium by the Board of Trustees constitutes a

departure from or an amendment to Chapter 18-21, Florida Administrative Code, by

effectively removing a class of state lands from the operation of that rule

chapter for different treatment. Balsam v. Department of Health and

Rehabilitative Services, 452 So.2d 976 (Fla. 1st DCA 1984). The "temporary"

nature of the moratorium does not permit its imposition outside of rulemaking

requirements. As noted in Balsam, supra at 978, the pervasive and consistent

effect of the moratorium upon [applicants] is in no way lessened by the

moratorium's finite duration."

24. The moratorium's adoption deprives Petitioners and others similarly

situated of administrative due process. The action of the Board of Trustees in

this case is not among that class of action deemed legally insignificant in

McDonald v. Department of Banking and Finance, 346 So.2d 569, 581, N. 7 (Fla.

1st DCA 1977). The Board of Trustees has, by rule, explicated policy on this

subject. McDonald recognizes any departure from the adopted rule policy as

legally significant. 346 So.2d at 583, nil.

25. Through the imposition of the moratorium with its applicability to a

class of cases, the Board of Trustees has suspended the operation of its rule

and denied administrative due process to applicants by ignoring rulemaking as

well as adjudication of individual cases.

26. In the absence of a duly adopted rule permitting peremptory or summary

action such as the moratorium, the action of the Board of Trustees in adopting

the moratorium is invalid.

27. Moreover, the Board of Trustees' imposition of this blanket, nonrule

policy without advance notice, without the fact finding of the rulemaking

process, and without considering the economic impact on affected persons is

clearly arbitrary. Affected persons should not be denied the opportunity to

meaningfully participate in formulating agency policy or to have access to a

forum within which to challenge application of that policy on a case-by-case

basis.

Based on the foregoing, it is hereby

ORDERED that the moratorium adopted on August 22, 1989, and subsequently

modified and extended is a rule which is an invalid exercise of delegated

legislative authority because of the failure of the Board of Trustees to

materially follow applicable rule making procedures required by Section 120.54,

Florida Statutes, and it is

FURTHER ORDERED that this invalid rule may not be relied upon as a basis to

defer consideration of applications for use of state-owned submerged lands

adjacent to unbridged, undeveloped coastal islands.

DONE AND ORDERED this 15th day of May, 1991, in Tallahassee, Leon County,

Florida.

_________________________

DON W. DAVIS

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative

Hearings this 15th day of

May, 1991.

APPENDIX

The following constitutes my specific rulings, in accordance with Section

120.59, Florida Statutes, on proposed findings of fact submitted by the parties.

Proposed Findings Of Petitioner Lost Tree.

1.-3. Adopted in substance.

Proposed Findings Of Petitioners Keewaydin Club and Idlewyld Corporation

1.-3. Adopted in substance.

Proposed Findings of Theodore Watrous, Thomas Munz, Warren Noden, Nariner

Properties; and Intervenor Broderick.

1.-6. Rejected, no citation to record.

7.-14. Adopted in substance.

Respondent's Proposed Findings.

1.-8. Rejected, unnecessary.

9.-10. Rejected, recitation of statutes.

11. Rejected, legal conclusion.

12. Rejected, not supported by the evidence.

13. Adopted by reference.

14.-23. Adopted in substance, though not verbatim.

Intervenor's Proposed Findings.

1.-2. Adopted in substance, though not verbatim.

3.-6. Rejected, unnecessary, cumulative.

7. Rejected in substance, argumentative.

8. Adopted by reference.

9. Rejected, recitation of record events.

10. Rejected, relevance.

11. Rejected, cumulative.

12.-13. Adopted by reference.

14.-15. Rejected, relevance.

16. Adopted by reference.

17.-24. Rejected, record recitation, argument.

25. Rejected, argumentative.

26. Adopted by reference.

27.-32. Rejected, legal argument and cumulative,

unnecessary recitation of record.

COPIES FURNISHED:

Kenneth Plante, Esq.

Debra W. Schiro, Esq.

Department of Natural Resources

3900 Commonwealth Boulevard, MS-5

Tallahassee, FL 32399-3000

Steve Lewis, Esq.

P.O. Box 1876

Tallahassee, FL 32302-1876

Robert A. Routa, Esq.

P.O. Box 6506

Tallahassee, FL 32314-6506

M. Christopher Bryant, Esq.

P.O. Box 6507

Tallahassee, FL 32314-6507

Joseph Z. Fleming, Esq.

620 Ingraham Building

25 Southeast Second Avenue

Miami, FL 33131

Liz Cloud, Chief

Bureau of Administrative Code

The Capitol, Room 1802

Tallahassee, Florida

Carroll Webb, Executive Director

Administrative Procedures Committee

Holland Building, Room 120

Tallahassee, FL 32399-0250

Tom Gardner, Executive Director

Department of Natural Resources

3900 Commonwealth Boulevard, MS-5

Tallahassee, FL 32399-3000

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER 15 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 THE 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.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LOST TREE VILLAGE )

CORPORATION, et al., )

)

Petitioners, )

)

vs. ) CASE NO. 90-5337RU

) CASE NO. 90-5367RU

STATE OF FLORIDA, BOARD OF ) CASE NO. 90-5368RU

TRUSTEES OF THE INTERNAL ) CASE NO. 90-5471RU

IMPROVEMENT TRUST FUND, )

)

Respondent, )

)

and )

)

FLORIDA AUDUBON SOCIETY, )

)

Intervenor. )

__________________________________)

ORDER CORRECTING FINAL ORDER

Pursuant to Rule 22I-6.032, Florida Administrative Code, the first page of

the final order issued in the above-styled cause on May 15, 1991, is amended and

corrected with regard to the address of counsel for Petitioner Lost Tree

displayed on that page. A replacement copy of the amended first page is attached

to this order for the records of the parties which reflect the address of

counsel as follows:

Robert A. Routa, Esq.

P.O. Box 6506

Tallahassee, FL 32314-6507

DONE AND ORDERED this 16th day of May, 1991, in Tallahassee, Leon County,

Florida.

_________________________

DON W. DAVIS

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative

Hearings this 16th day of

May, 1991.

COPIES FURNISHED:

Kenneth Plante, Esq.

Debra W. Schiro, Esq.

Department of Natural Resources

3900 Commonwealth Boulevard, MS-5

Tallahassee, FL 32399-3000

Steve Lewis, Esq.

P.O. Box 1876

Tallahassee, FL 32302-1876

Robert A. Routa, Esq.

P.O. Box 6506

Tallahassee, FL 32314-6506

M. Christopher Bryant, Esq.

P.O. Box 6507

Tallahassee, FL 32314-6507

Joseph Z. Fleming, Esq.

620 Ingraham Building

25 Southeast Second Avenue

Miami, FL 33131

Liz Cloud, Chief

Bureau of Administrative Code

The Capitol, Room 1802

Tallahassee, Florida

Carroll Webb, Executive Director

Administrative Procedures Committee

Holland Building, Room 120

Tallahassee, FL 32399-0250

Tom Gardner, Executive Director

Department of Natural Resources

3900 Commonwealth Boulevard, MS-5

Tallahassee, FL 32399-3000