90-006418RP Stanley L. Becker, Lamar Louise Curry, And William Cullen vs. Administration Commission And Department Of Community Affairs Status: Closed DOAH Final Order on Friday, December 21, 1990.

Summary: Proposed rules changing the boundary of the Florida Keys Area of Critical State Concern is invalid; two Petitioners dismissed for lack of standing.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STANLEY L. BECKER, LAMAR )

LOUISE CURRY and )

WILLIAM CULLEN, )

)

Petitioner, )

)

vs. ) CASE NO. 90-6418RP

)

ADMINISTRATION COMMISSION, )

)

Respondent, )

and )

)

DEPARTMENT OF COMMUNITY )

AFFAIRS, )

)

Intervenor. )

________________________________)

FINAL ORDER

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

designated Hearing Officer, Michael M. Parrish, held a formal hearing in the

above-styled case on November 13, 1990, in Tallahassee, Florida.

APPEARANCES

For Petitioners: Andrew M. Tobin, Esquire

MATTSON, TOBIN & VETRICK

Post Office Box 586

Key Largo, Florida 33037

For Respondent: David Maloney, Esquire

Assistant General Counsel

Office of the Governor, Suite 209

Tallahassee, Florida 32399-0001

For Intervenor: M. B. Adelson, IV, Esquire

David Jordan, Esquire

G. Steven Pfeiffer, Esquire

Department of Community Affairs

2740 Centerview Drive

Tallahassee, Florida 32399-2100

STATEMENT OF THE ISSUES

The central issue in this case is whether the Administration Commission's

proposed amendment to the boundary of the Florida Keys Area of Critical State

Concern, Rule 28-29.002, Florida Administrative Code, is an invalid exercise of

delegated legislative authority. There are related issues concerning the

standing of the Petitioners and concerning whether the subject rule, due to its

special character as a rule which must be submitted for legislative review, is

properly the subject of a rule challenge proceeding.

PRELIMINARY STATEMENT

At the commencement of the hearing, the parties filed a Prehearing

Statement which contains, among other matters, a recitation of certain admitted

facts. At hearing, all three parties called James L. Quinn, Section

Administrator of the Department's Area of Critical State Concern Section, as a

witness. Mr. Quinn was accepted as an expert in comprehensive planning.

Petitioner's exhibits 1-3, Intervenor's exhibit 1, and Joint Exhibits 1-5 were

received into evidence. The Petitioner's Motion to Amend by Interlineation was

denied at the commencement of the hearing, and the Intervenor's renewed Motion

to Dismiss Petitioner Curry for lack of standing was deferred for consideration

in the Final Order.

At the conclusion of the hearing, the parties agreed to, and were granted,

15 days within which to file their proposed final orders; the 15-day period to

be measured from the close of the hearing (November 13, 1990) if no transcript

was ordered, or from the filing of the transcript if one was prepared. The

Respondent and Intervenor elected not to order a transcript. The Petitioners

were allowed until November 16, 1990, within which to decide whether to order a

transcript and to communicate their decision to counsel for the Respondent and

the Intervenor.

The Petitioners did not timely communicate to the other parties any

decision regarding the preparation of the transcript. Accordingly, on November

28, 1990, the Respondent and Intervenor filed their Proposed Final Order. On

December 5, 1990, the Respondent and Intervenor filed a Motion To Reject

Transcript Of Final Hearing And Untimely Proposed Final Order. On December 13,

1990, a hearing was conducted on the motion by telephone conference. At the

conclusion of the telephone conference, the Petitioners were allowed until

December 17, 1990, to serve their Proposed Final Order, such service to be by

FAX or some other form of actual delivery, and the Respondent and Intervenor

were allowed until December 20, 1990, to file any rebuttal or reply. 1/ The

Petitioners served their Proposed Final Order on December 17, 1990. The Hearing

Officer was advised by telephone that the Respondent and Intervenor waived their

opportunity to file any rebuttal or reply. All findings of fact proposed by all

parties are addressed in the Appendix to this Final Order.

FINDINGS OF FACT

Facts admitted by all parties

1. The Intervenor, Department of Community Affairs, is the designated

state land planning agency with the duty and responsibility to enforce and

administer Chapter 380, Florida Statutes, and the Monroe County comprehensive

plan and development regulations.

2. The proposed rule amendment cannot take effect until after it has been

submitted to the Legislature at the next legislative session.

3. Development has occurred in the Florida Keys Area of Critical State

Concern seaward of the mean high water line, which development has not been

reviewed by either of the Respondent and Intervenor agencies for compliance with

the Monroe County comprehensive plan and land development regulations.

4. The Administration Commission, consisting of the Governor and Cabinet,

has the statutory authority to adopt rules that remove, contract, or expand the

boundaries of Areas of Critical State Concern.

5. Petitioner Cullen's property is adjacent to government owned submerged

land.

6. Petitioner Curry's property described in the Petition and Petitioner

Becker's property are adjacent to privately owned submerged land.

7. Petitioner Curry's property described in the Motion To Amend is

adjacent to government owned submerged property.

Facts established at hearing

8. The present boundary of the Florida Keys Area of Critical State Concern

in existing Rule 28-29.002, Florida Administrative Code, includes all of Monroe

County with certain exceptions. The only exception relevant to this 1case is:

"All lands seaward of mean high water that are owned by local, state, or federal

governments." The existing boundary of the Florida Keys Area of Critical State

Concern was approved by the Legislature in 1979.

9. On November 25, 1986, the First District Court of Appeal issued its

opinion in Bartecki v. Department of Community Affairs, 498 So.2d 972 (Fla. 1st

DCA 1986). The Bartecki case involved a major development of 25 duplex lots and

a dock which extended 155 feet seaward of mean high water over submerged lands

owned by the state. The Department appealed the Monroe County development order

to the Governor and Cabinet, alleging that the project did not comply with the

Monroe County land development regulations, and the Governor and Cabinet issued

a final order denying development approval. The First District held that,

"...by the unequivocal language of the rule, the (Department and the Governor

and Cabinet) lacked jurisdiction over the construction of the 155-foot seaward

portion of the dock...."

10. Since the date of the Bartecki decision, the Department and the

Governor and Cabinet have not reviewed development located seaward of mean high

water on government owned submerged land. The existing boundary, as interpreted

by the First District Court of Appeal, limits the Respondent and Intervenor

agencies to reviewing only the portions of projects that are constructed in

upland areas. The Department and the Administration Commission are precluded

from reviewing docks, piers, marinas, and dredge and fill projects which are

developed below the mean high water line on government owned submerged land.

11. The Florida Keys Area Principles for Guiding Development in Section

380.0552(7), Florida Statutes, include the following:

(b) To protect shoreline and marine

resources, including mangroves, coral reef

formations, seagrass beds, wetlands, fish and

wildlife, and their habitat.

(e) To limit the adverse impacts of

development on the quality of water

throughout the Florida Keys.

(i) To limit the adverse impacts of

public investments on the environmental

resources of the Florida Keys.

12. The present boundary of the Florida Keys Area of Critical State

Concern frustrates enforcement of the legislatively adopted Principles for

Guiding Development. While upland development can be detrimental to marine and

estuarine resources, development which is located below the mean high water line

clearly poses the possibility of more damage to marine and estuarine resources.

Monroe County has adopted a comprehensive plan and land development regulations

that include significant protection for the marine and estuarine resources of

the Florida Keys. This protection was necessary for the plan to be judged

consistent with the Principles for Guiding Development. Monroe County does not

always properly enforce its land development regulations, its comprehensive

plan, or the Principles for Guiding Development.

13. Section 380.05(12), Florida statutes, provides that the Department may

request the Administration Commission to remove, contract, or expand any

designated boundary of an Area of Critical State Concern. On August 15, 1990,

the Secretary of the Department submitted a memorandum to the Governor and

Cabinet requesting that the boundary of the Florida Keys area be expanded to

include 250 feet of government owned submerged land. Specifically, the

Department requested that the exception for government owned submerged lands

quoted in finding of fact 8 be amended to provide:

All lands more than 250 feet seaward of the

mean high water line owned by local, state,

or federal governments.

14. The Department requested inclusion of only the first 250 feet of

government owned submerged land, because the development that concerns the

Department is most likely to occur in that portion. Docks, piers, marinas, and

dredge and fill projects are not likely to be developed more than 250 feet

seaward of the mean high water line.

15. None of the other state and federal agencies that have jurisdiction

over submerged land, such as DER, DNR, or the Army Corps of Engineers, are

charged with enforcement of the Monroe County comprehensive plan and land

development regulations.

16. On September 21, 1990, the Administration Commission published a

Notice of Proposed Rulemaking in Vol. 16, NO. 38, of the Florida Administrative

Weekly. The Notice indicated that the Administration Commission proposed to

amend the boundary of the Florida Keys Area in the manner requested by the

Department.

CONCLUSIONS OF LAW

17. The Division of Administrative Hearings has jurisdiction over the

subject matter of and the parties to this proceeding pursuant to Section 120.54,

Florida, Statutes.

18. The presently effective boundary of the Florida Keys Area of Critical

State Concern in Rule 28-29.002, Florida Administrative Code, includes all lands

in Monroe County, with a few exceptions. The only exception that is changed by

the proposed boundary amendment is the exception that presently reads, "All

lands seaward of mean high water that are owned by local, state, or federal

governments." The effect of the proposed boundary amendment would be to extend

the boundary of the Florida Keys Area of Critical State Concern over some

government owned submerged land.

19. Privately owned submerged land adjacent to the uplands owned by

Petitioners Curry and Backer will not be affected by the proposed boundary

amendment. Therefore, Petitioners Curry and Becker would not be substantially

affected by adoption of the proposed rule. Because they would not be

substantially affected, they lack standing to challenge the proposed rule and so

much of the Petition as relates to the Petitioners Curry and Becker must be

dismissed.

20. The proposed amendment to Rule 28-29.002, Florida Administrative Code,

is a proposed expansion to the boundary of the Florida Keys Area of Critical

State Concern. The Administration Commission is specifically authorized to

expand any designated Critical Area boundary by rule. Sec. 380.05(12), Fla.

Stat. (1989). Section 380.05(12) also states that, "Boundary expansions are

subject to legislative review pursuant to paragraph (1)(c)."

21. Section 380.05(1)(c), Florida Statutes (1989), provides that the

boundary expansion rule:

... shall be submitted to the President of the

Senate and the Speaker of the House of

Representatives for review no later than 30

days prior to the next regular session of the

Legislature. The Legislature may reject,

modify, or take no action relative to the

adopted rule....

22. The proposed boundary expansion rule amendment, if adopted by the

Administration Commission, cannot be applied by the Administration Commission,

the Florida Land and Water Adjudicatory Commission, or the Department of

Community Affairs until after submittal to the Legislature. Sec. 380.05(1)(c),

Fla. Stat. See also Bartecki v. Department of Community Affairs, 498 So.2d 972,

974 (Fla. 1st DCA 1986). If the Legislature rejects the proposed rule, it can

never be applied. It can only be applied by the various agencies if, following

legislative review, the Legislature either expressly approves of the proposed

amendment or implicitly approves of the proposed amendment by taking no action

to reject or modify it. Because of the foregoing, the Respondent and Intervenor

argue that the subject proposed rule is something more in the nature of a

proposal to the Legislature to expand the geographic scope of powers, functions,

and duties previously delegated by the Legislature. In this regard it is also

argued that the issue of whether the proposed rule constitutes an invalid

exercise of delegated legislative authority will be determined by the

Legislature itself, thus obviating any need for, or useful purpose to be served

by, a Section 120.54, Florida Statutes, rule challenge proceeding. Support for

the argument can be found in Occidental Chemical Agricultural Products, Inc. v.

State, Department of Environmental Regulations, 501 So.2d 674 (Fla. 1st DCA

1987), where the court discussed the legal status of other rules that were

subject to legislative review. Nevertheless, it seems clear from the language

of Section 380.05(1)(b), Florida Statutes, that the Legislature contemplated an

opportunity for a Section 120.54 or 120.56, Florida Statues, challenge to this

type of rule. As noted in an earlier order addressing the same argument in a

prehearing motion to dismiss:

Like the rules addressed in Occidental

Chemical Agricultural Products, Inc. v.

Department of Environmental Regulations, 501

So.2d 674 (Fla. 1st DCA 1987), where the

court concluded that rules requiring

legislative approval to become effective must

be treated, once approved, like statutes, the

proposed rule in this case may be some form

of embryonic statute. But until such time as

it is reviewed by the Legislature, it appears

to be, except to the extent otherwise

provided by Section 380.05, Florida Statutes,

subject to the entire Section 120.54

rulemaking process, including the rule

challenge provisions of Section 120.54(4),

Florida Statutes. (emphasis added)

23. Even though it is concluded that the instant proposed rule is subject

to the rule challenge provisions of Section 120.54(4), Florida Statutes, the

Petition in this case must, nevertheless, be dismissed because the Petitioners

have failed to present any evidence sufficient to establish that the proposed

rule is an invalid exercise of delegated legislative authority within the

meaning of Section 120.52(8), Florida Statues, which reads:

(8) "Invalid exercise of delegated

legislative authority" means action which

goes beyond the powers, functions, and duties

delegated by the Legislature. A proposed or

existing rule is an invalid exercise of

delegated legislative authority if any one or

more of the following apply:

(a) The agency has materially failed to

follow the applicable rulemaking procedures

set forth in S. 120.54;

(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; or

(e) The rule is arbitrary or capricious.

24. There is no evidence in this case sufficient to demonstrate any

failure to follow the applicable rulemaking procedures. The instant proposed

rule is clearly within the rulemaking authority granted to the Administration

Commission and it does not enlarge, modify, or contravene any other specific

provisions of law. To the contrary, the Administration Commission is clearly

and expressly authorized to "by rule remove, contract, or expand any designated

boundary." See Sec. 380.05(12), Fla. Stat.

25. With regard to the assertion that the proposed rule is "vague, fails

to establish adequate standards for agency decision, or vests unbridled

discretion," it is first noted that the proposed rule is as precise as the

existing rule establishing the boundary, which rule has already been reviewed

and approved by the Legislature. Further, the courts have already determined

that legislative approval of such a Critical Area boundary ensures that the

boundary is a valid delegation of legislative authority. Cross Keys Waterways

v. Askew, 351 S0.2d 1062 (Fla. 1st DCA 1977); Askew v. Cross Keys Waterways, 372

So.2d 913 (Fla. 1978).

26. Finally, with regard to the assertion that the

proposed rule is arbitrary or capricious, it can hardly be contended that it is

arbitrary and capricious for the Administration Commission to propose to restore

the geographic jurisdiction over waterward development it believed it had prior

to the Bartecki decision, supra. As described in the findings of fact, the

proposed expansion of boundary of the Florida Keys Area of Critical State

Concern to include the first 250 feet of government owned submerged land is

necessary to protect the resources described in the Principles for Guiding

Development. Jurisdiction over all development in the Florida Keys, and over

complete development projects, is logically required for the comprehensive

planning and regulation of that development.

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

ORDERED:

1. That with regard to the Petitioners Curry and Becker, the rule

challenge Petition in this case is DISMISSED because the proposed rule does not

affect their substantial interests and they have no standing to challenge the

proposed rule

2. That with regard to all Petitioners, the rule challenge Petition in

this case is DISMISSED for failure of the Petitioners to establish by a

preponderance of the evidence that proposed Rule 28-29.002, Florida

Administrative Code is an invalid exercise of delegated legislative authority.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 21st day of

December 1990.

___________________________________

MICHAEL M. PARRISH

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 21st day of December, 1990.

ENDNOTE

1/ The due date of the proposed final orders and the complications associated

with the ordering of the transcript are addressed in greater detail in an order

issued December 13, 1990.

APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 90-6418RP

The following are my specific rulings on all proposed findings of fact

submitted by all parties.

Findings submitted by the Petitioners:

Paragraphs 1 and 2: Accepted.

Paragraphs 3, 4, and 5: Accepted in substance.

Paragraph 6: Rejected as subordinate and unnecessary details.

Paragraph 7: Accepted in substance.

Paragraphs 8, 9, 10, 11, 12, 13, 14, and 15: Rejected as subordinate and

unnecessary details.

Paragraph 16: Rejected as constituting argument rather than proposed

findings of fact.

Paragraph 17: Rejected as subordinate aid unnecessary details.

Findings submitted by the Respondent and Intervenor:

Paragraph 1: First sentence accented. The remainder rejected as

subordinate and unnecessary details.

Paragraph 2: Accepted.

Paragraph 3: Rejected as subordinate and unnecessary details inasmuch as

the Motion To Amend By Interlineation has been denied. (And, in any event,

these proposed procedural details would go somewhere other than in the findings

of fact.)

Paragraphs 4, 5, 6, 7, 8, and 9: Accepted.

Paragraph 10: Accepted with the exception of the last sentence. The last

sentence is rejected as constituting argument rather than proposed findings of

fact.

Paragraphs 11, and 12: Accepted.

Paragraph 13: First sentence accepted. Last sentence rejected as not

fully supported by persuasive competent substantial evidence.

Paragraphs 14 and 15: Accepted.

COPIES FURNISHED:

Andrew M. Tobin, Esquire

MATTSON, TOBIN & VETRICK

Post Office Box 586

Key Largo, Florida 33037

Patricia Woodworth

c/o Karen MacFarland

Carlton Building

Tallahassee, Florida 32399

David Maloney, Esquire

Assistant General Counsel

Office of the Governor

Suite 209

Tallahassee, Florida 32399-0001

M. B. Adelson, IV, Esquire

David Jordan, Esquire

G. Steven Pfeiffer, Esquire

Department of Community Affairs

2740 Centerview Drive

Tallahassee, Florida 32399-2100

Carroll Webb, Executive Director

Administrative Procedures Committee

120 Holland Building

Tallahassee, Florida 32399-1300

Liz Cloud, Chief

Bureau of Administrative Code

Room 1802, The Capitol

Tallahassee, Florida 32399-2050

NOTICE OF RIGHT TO JUDICIAL REVIEW

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.