91-007243RP Donald L. Berg vs. Department Of Community Affairs Status: Closed DOAH Final Order on Friday, May 8, 1992.

Summary: City in area of critical state concern adopted building moratorium; Department of Community Affairs approval of ordinance by emergency rule and proposed rule upheld; estimate of economic impact on all affected persons adequate.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DONALD L. BERG, )

)

Petitioner, )

)

vs. )

)

DEPARTMENT OF COMMUNITY AFFAIRS, ) CASE NOS. 91- 7243RP

) 91- 7283RP

Respondent, )

and )

)

CITY OF KEY WEST, )

)

Intervenor. )

__________________________________)

FINAL ORDER

Pursuant to notice, a formal hearing was conducted in these consolidated

cases on December 13 and December 17, 1991 before J. Stephen Menton, a duly

designated Hearing Officer of the Division of Administrative Hearings. The

hearing was conducted by telephone with the Hearing Officer in his office in

Tallahassee, counsel for Respondent, Department of Community Affairs (" DCA",) in

their office in Tallahassee, and counsel for Petitioner, Donald L. Berg, and

counsel for Intervenor, the City of Key West (the "City",) in Key West.

APPEARANCES

For Petitioner: Andrew W. Tobin, Esquire

Mattson & Tobin

Post Office Box 586

Key Largo, Florida 33037

For Respondent: Katherine Castor

Assistant General Counsel

David L. Jordan

Assistant General Counsel

Department of Community Affairs

2740 Centerview Drive

Tallahassee, Florida 32399-2100

For Intervenor: Leslie K. Dougall

Assistant City Attorney

City of Key West

Post Office Box 1409

Key West, Florida 33041-1409

STATEMENT OF THE ISSUES

The issues to be resolved in these consolidated cases are whether DCA's

Emergency Rule 9JER-91-3, Florida Administrative Code, and proposed Rule 9J-

22.014 should be invalidated pursuant to Sections 120.56 and 120.54(4), Florida

Statutes, respectively.

PRELIMINARY STATEMENT

On September 3, 1991, the City adopted Ordinance 91-25, (the "Ordinance")

which provided for a 180 day moratorium on certain development in the City. The

City is designated as an Area of Critical State Concern pursuant to Rule 28-36,

Florida Administrative Code. Accordingly, ordinances regulating land development

do not take effect unless DCA approves them "by rule" as set forth in Section

380.0552(9), Florida Statutes. The Ordinance provided that the 180 day

moratorium would begin on the effective date of the administrative rule

approving the Ordinance.

On September 18, 1991, DCA filed a rule packet for Emergency Rule 9JER-91-

3, Florida Administrative Code, (the "Emergency Rule") with the Secretary of

State. The Emergency Rule became effective on the date of filing and approved

the Ordinance. On October 10, 1991, DCA filed a rule packet for proposed rule

9J-22.013 (the "Proposed Rule") with the Secretary of State. The Notice of

Proposed Rule 9J-22.013 appeared in the October 18, 1991 edition of the Florida

Administrative Weekly. On October 24, 1991, DCA filed a Notice of Change with

the Secretary of State stating that the correct number for the proposed rule was

9J-22.014, since 9J-22.013 had already been used. The Notice of Change appeared

in the November 1, 1991 edition of the Florida Administrative Weekly.

In a Petition for Administrative Hearing dated November 5, 1991 and filed

with the Division of Administrative Hearings (" DOAH") on November 6, 1991,

Petitioner challenged the Proposed Rule pursuant to Section 120.54, Florida

Statutes. Similarly, in a Petition for Formal Administrative Hearing dated

November 12, 1991 and filed with DOAH on November 13, 1991, Petitioner

challenged the Emergency Rule pursuant to Section 120.56, Florida Statutes. The

challenge to the Proposed Rule was assigned DOAH Case No. 91- 7243RP and the

challenge to the Emergency Rule was assigned DOAH Case No. 91- 7283RP. Both

cases were originally assigned to Hearing Officer William F. Quattlebaum, who

entered an Order of Consolidation on November 18, 1991. On December 5, 1991,

Hearing Officer Quattlebaum entered an Order Granting Petition to Intervene with

respect to a Petition to Intervene filed by the City of Key West on December 3,

1991.

As set forth in an Order Denying Petitioner's Motion for Change of Venue

and Establishing Requirements for Telephonic Hearing entered by Hearing Officer

Quattlebaum on December 6, 1991, the hearing was scheduled to be conducted

telephonically. The parties agreed upon a procedure for administering oaths to

each of the witnesses. Prior to the hearing, the cases were transferred to

Hearing Officer J. Stephen Menton, who conducted the hearing by telephone as

scheduled.

At the outset of the hearing, DCA advised that the Emergency Rule was

scheduled to expire in the immediate future and DCA intended to adopt another

Emergency Rule upon the expiration of the challenged one. The parties

stipulated that the Final Order entered in this case would be binding on DCA

with respect to subsequently promulgated emergency rules that were identical to

the Emergency Rule in this case and that were adopted during the pendency of

this proceeding.1

During the hearing, Petitioner presented the testimony of five witnesses:

Theodore C. Strader, city planner for the City of Key West; Petitioner Donald L.

Berg; Ray Capas, an expert in real estate valuation in the City of Key West;

David Ornstein, an expert in comprehensive planning; and James L. Quinn, who is

employed by DCA as the administrator of the Area of Critical State Concern

Program.

The City recalled Mr. Strader and qualified him as an expert in municipal

planning. DCA presented the testimony of Tricia Wrenn, a planner employed by

DCA, and recalled James L. Quinn. Both Ms. Wrenn and Mr. Quinn were qualified

and accepted as experts in comprehensive planning.

Prior to the hearing, the parties filed a Prehearing Stipulation which

identified the exhibits that each of the parties intended to use during the

hearing. The parties stipulated to the authenticity of all the exhibits listed

in the Prehearing Stipulation and agreed to use the numbering system followed in

the Prehearing Stipulation. During the hearing, Petitioner moved twenty one

exhibits into evidence, Exhibits A-1, A-3, A-4, A-5, A-6, B-1 through B-15, and

C-4 on the Prehearing Stipulation list, all of which were accepted. The City

moved seventeen exhibits into evidence, C-1 through C-17, all of which were

accepted. Most of the exhibits listed by DCA in the Prehearing Stipulation were

offered into evidence by Petitioner. DCA did not offer any other exhibits into

evidence. During the hearing, DCA complained that it had never been provided

with a copy of Exhibit A-1, which was offered into evidence by Petitioner. As

noted above, the Exhibit was accepted into evidence. DCA was instructed to file

a Motion to Supplement the Record if, upon receipt of the Exhibit, it determined

that some evidentiary response was necessary. No such Motion has been filed.

A transcript of the hearing has been filed. All parties have submitted

proposed final orders. A ruling on each of the parties' proposed findings of

fact is included in the Appendix attached to this Final Order.

FINDINGS OF FACT

Based upon the oral and documentary evidence adduced at the final hearing

and the entire record in this proceeding, the following findings of fact are

made:

1. DCA is the state land planning agency with the power and duty to

exercise general supervision over the administration and enforcement of

Chapter 380, Florida Statutes, including Areas of Critical State Concern, and

all rules and regulations promulgated thereunder. See, Section 380.031(18),

Florida Statutes.

2. The City of Key West is in the Florida Keys Area of Critical State

Concern. See, Section 380.0552(3), Florida Statutes and Rule 27F-8, Florida

Administrative Code.

3. Since the City is in the Florida Key's Area of Critical State Concern,

City ordinances regulating land development do not take effect until DCA

approves them "by rule." See, Section 380.0552(9), Florida Statutes. See

also, Section 380.05(6), Florida Statutes (which provides that no proposed

land development regulation in an Area of Critical State Concern shall become

effective until DCA has adopted a rule approving such regulation.)

4. In pertinent part, Section 380.0552, Florida Statutes provides:

380.0552 Florida Keys Area; protection and designation

as area of critical state concern.--

(7) PRINCIPLES FOR GUIDING DEVELOPMENT.--State,

regional, and local agencies and units of government in

the Florida Keys Area shall coordinate their plans and

conduct their programs and regulatory activities

consistent with the principles for guiding development

as set forth in chapter 27F-8, Florida Administrative

Code, as amended effective August 23, 1984, which

chapter is hereby adopted and incorporated herein by

reference. For the purposes of reviewing consistency

of the adopted plan or any amendments to that plan with

the principles for guiding development and any

amendments to the principles, the principles shall be

construed as a whole and no specific provision shall be

construed or applied in isolation from the other

provisions. However, the principles for guiding

development as set forth in chapter 27F-8, Florida

Administrative Code, as amended effective August 23,

1984, are repealed 18 months from July 1, 1986. After

repeal, the following shall be the principles with

which any plan amendments must be consistent:

(a) To strengthen local government capabilities for

managing land use and development so that local

government is able to achieve these objectives without

the continuation of the area of critical state concern

designation.

(b) To protect shorelines and marine resources,

including mangroves, coral reef formations, seagrass

beds, wetlands, fish and wildlife, and their habitat.

(c) To protect upland resources, tropical biological

communities, freshwater wetlands, native tropical

vegetation (for example, hardwood hammocks and

pinelands), dune ridges and beaches, wildlife, and

their habitat.

(d) To ensure the maximum well-being of the Florida

Keys and its citizens through sound economic

development.

(e) To limit the adverse impacts of development on the

quality of water throughout the Florida Keys.

(f) To enhance natural scenic resources, promote the

aesthetic benefits of the natural environment, and

ensure that development is compatible with the unique

historic character of the Florida Keys.

(g) To protect the historical heritage of the Florida

Keys.

(h) To protect the value, efficiency, cost-

effectiveness, and amortized life of existing and

proposed major public investments, including:

1. The Florida Keys Aqueduct and water supply

facilities;

2. Sewage collection and disposal facilities;

3. Solid waste collection and disposal facilities;

4. Key West Naval Air Station and other military

facilities;

ansportation facilities;

6. Federal parks wildlife refuges, and marine

sanctuaries;

7. State parks, recreation facilities, aquatic

preserves, and other publicly owned properties;

8. City electric service and the Florida Keys Co-op;

and

9. Other utilities, as appropriate.

( i) To limit the adverse impacts of public investments

on the environmental resources of the Florida Keys.

(j) To make available adequate affordable housing for

all sectors of the population of the Florida Keys.

(k) To provide adequate alternatives for the

protection of public safety and welfare in the event of

a natural or man-made disaster and for a post-disaster

reconstruction plan.

(l) To protect the public health, safety, and welfare

of the citizens of the Florida Keys and maintain the

Florida Keys as a unique Florida resource.

* * *

(9) MODIFICATION TO PLANS AND REGULATIONS.--Any land

development regulation or element of a local

comprehensive plan in the Florida Keys Area may be

enacted, amended, or rescinded by a local government,

but the enactment, amendment or rescission shall become

effective only upon the approval thereof by the state

land planning agency. The state land planning agency

shall review the proposed change to determine if it is

in compliance with the principles for guiding

development set forth in chapter 27F-8, Florida

Administrative Code, as amended effective August 23,

1984, and shall either approve or reject the requested

changes within 60 days of receipt thereof. Further,

the state land planning agency, after consulting with

the appropriate local government, may, no more often

than once a year, recommend to the Administration

Commission the enactment, amendment, or rescission of a

land development regulation or element of a local

comprehensive plan. Within 45 days following the

receipt of such recommendation by the state land

planning agency, the commission shall reject the

recommendation, or accept it with or without

modification and adopt it, by rule, including any

changes. Any such local development regulation or plan

shall be in compliance with the principles for guiding

development. (Emphasis supplied.)

5. In sum, any land development regulations adopted by the City must be

submitted to DCA for approval or rejection pursuant to Section 380.0552(9).

Such regulations become effective when approved by DCA. In evaluating an

Ordinance submitted pursuant to Section 380.0552(9), DCA will look to the

Principles for Guiding Development found in Section 380.0552(7), Florida

Statutes. DCA is directed to approve a proposed ordinance if it is in

compliance with the Principles for Guiding Development; conversely, DCA is

without authority to approve a proposed amendment which is not in compliance

with the Principles for Guiding Development.

6. On September 3, 1991, the City adopted Ordinance 91-25 (the

"Ordinance") which provides for a 180 day moratorium on certain development

activities in the City. The Ordinance prohibits

...the approval of Community Impact Assessment

Statements and site plans for projects falling within

the scope of the city's CIAS ordinance, where the

proposed density or intensity of use is inconsistent

with the permitted density or intensity under the

future land use map of the city's pending comprehensive

plan or the property is situated in an area designated

as coastal high hazard or wetlands on the Future Land

Use Map of the City's pending comprehensive land use

plan...

7. A building moratorium, such as that set

forth in the Ordinance, constitutes a land development regulation as defined in

Section 380.031(8), and Rule 28-20.19(4), Florida Administrative Code.

Therefore, the moratorium could not take effect until approved by DCA by rule.

8. A Community Impact Assessment Statement

(" CIAS"), as defined in Section 34.04, Key West Code, describes expected impacts

of proposed development on specified City resources and infrastructure. While a

CIAS is not a development order, the City requires a CIAS as a precondition to

the granting of a building permit for most large projects in the City. A

developer is required to submit a CIAS for a proposed residential or hotel/motel

development of ten or more habitable units or a proposed commercial development

of 10,000 square feet or more. A CIAS is intended to ensure that the impacts a

proposed project will have upon public facilities and the social and economic

resources of the community are considered in the planning process and to avoid

surprises during the planning process. The City will reject a CIAS that it

finds to be incomplete or misleading.

9. The City Commission held its first hearing on the Ordinance on June 18,

1991. At least five public hearings before the City Commission were held prior

to the City's adoption of the Ordinance.

10. The 1981 City of Key West Comprehensive Plan (the "Existing

Comprehensive Plan") sets forth certain parameters and standards for the

issuance of development orders. The Existing Comprehensive Plan has been

approved by the Administration Commission in Chapter 28-37, Florida

Administrative Code. The City of Key West land development regulations and

certain amendments to the Existing Comprehensive Plan have been approved by DCA

in Chapter 9J-22, Florida Administrative Code. The City is required by the

States's growth management statute, Part II of Chapter 163, Florida Statutes, to

submit to DCA a new comprehensive plan. Since the City is in an Area of

Critical State Concern, the new comprehensive plan will not take effect until it

is approved by DCA by rule. The Existing Comprehensive Plan remains in effect

until a new plan is adopted.

11. At the time the Ordinance was adopted, the City was in the process of

preparing a new comprehensive plan to guide future development. By adopting the

moratorium, the City sought to provide itself with an opportunity to effectively

implement a new comprehensive plan.

12. The City submitted a proposed new comprehensive plan (the "Pending

Comprehensive Plan") to DCA on December 2, 1991. DCA and the City are currently

involved in negotiations over whether the Pending Comprehensive Plan is in

compliance with the state's growth management law, Chapter 163, Florida

Statutes, and the rules promulgated thereunder, Rule 9J-5, Florida

Administrative Code.

13. The Pending Comprehensive Plan was still in the draft stages at the

time the Ordinance was adopted. As indicated above, the City adopted the

moratorium for projects requiring a CIAS in an effort to ensure that the City

would be able to effectively implement a new comprehensive plan. The City is

faced with numerous development-related problems which it attempts to address in

the Pending Comprehensive Plan. These problems include:

A. Water Quality

1. Water Resources - The City draws all of its water from the Biscayne

Aquifer. The water is pumped from wellfields on the mainland in Dade County and

is transported through a single pipe to Monroe County to provide water to the

Florida Keys population. While there is no immediate problem with the

availability of water for the City, the Florida Keys Aqueduct Authority and the

South Florida Water Management District ( SFWMD) are in the process of preparing

a water supply plan for Dade County and the Keys. These agencies recently

informed all Monroe County local governments that they are approaching the limit

of water that can be supplied from the aquifer and it is expected that there

will be limitations on any further increases in consumption and/or consumptive

use permits. The City and DCA contend that the moratorium will help the City to

effectively analyze and address these issues in its new comprehensive plan.

Chapter 4 of the Pending Comprehensive Plan would require the City to develop a

plan for potable water resources, including replacement of the aging water main,

providing for emergency supplies, and emphasizing the need to conserve water.

2. Sewer System - Sewage treatment in the City of Key West is a serious

problem. The treated effluent is currently dumped into the Atlantic Ocean and

has been implicated in the degradation of the environmentally sensitive and

unique coral reefs. Chapter 4 of the Pending Comprehensive Plan would direct

the City to substantially improve its wastewater treatment level of service,

prevent system infiltration, fix leaky pipes, and reduce the pollution of the

surrounding waters.

3. Stormwater Runoff - The waters surrounding the island of Key West have

been designated Outstanding Florida Waters, pursuant to Chapter 403, Florida

Statutes. The runoff generated by rains in the City is currently channeled into

these waters either directly or via canals. The Existing Comprehensive Plan

does not contain extensive guidance regarding stormwater runoff. Chapter 4 of

the Pending Comprehensive Plan would direct the City to conduct a half million

dollar study over the next two years to examine, develop, and implement a

stormwater management plan. Section 4-2.1(d) of the Pending Comprehensive Plan

would also require improved levels of service for stormwater runoff.

B. Hurricane Evacuation - The evacuation of people out of the Florida Keys

during a hurricane is an important element in the planning process for the City.

The Existing Comprehensive Plan does not provide any standards for hurricane

evacuation. Chapter 2 of the Pending Comprehensive Plan requires the City of

Key West to develop a feasible hurricane evacuation plan and coordinate its

implementation with the County. The City has taken no action on this directive

to date.

A model is being developed within the Monroe County Comprehensive Plan for

the safe evacuation of residents from the Florida Keys. The model will include

updated information based upon the Pending Comprehensive Plan. The inclusion of

new development into the model is complicated. By temporarily limiting new

development, the City can provide more certainty to this planning process.

C. Wetlands and Environmental Protection - The Pending Comprehensive Plan

seeks to strengthen and clarify the Existing Comprehensive Plan provisions

regarding wetlands and habitat protection by reducing densities within wetlands,

salt ponds, and coastal high hazard areas and requiring the adoption of amended

land development regulations which extensively improve the City's environmental

protection requirements.

D. Residential Housing and Conversion to Transient Units - There have been

a significant number of conversions from residential to transient units (hotels,

motels, and other tourist accommodations) in the City during the last several

years. The increase in "transient" persons exacerbates the strain upon public

facilities, especially transportation facilities. The Existing Comprehensive

Plan offers little protection to residential areas from commercial and

transient intrusion. The Future Land Use Element of the Pending Comprehensive

Plan attempts to guide and plan the locations of conversions.

Eansportation - Many roads in the City are currently operating at poor

levels of service, including U.S. Highway 1, the main arterial roadway in the

City. The City has never had a specific plan to improve the levels of service.

The City is required under the growth management statute (Chapter 163) to

provide adequate levels of service on the roads within the City. Chapter 2 of

the Pending Comprehensive Plan proposes to implement an extensive traffic

circulation system over the next twenty years which will include roadway

improvements, revised levels of service, and nonmotorized transportation

provisions.

F. Solid Waste - Currently, the City's solid waste is disposed at a local

landfill. The City's solid waste disposal facility is currently operating under

a year old consent order that directs the facility to be closed within three

years. The Existing Comprehensive Plan states that the City is to provide

adequate public facilities, but does not explain what constitutes "adequate".

The Existing Comprehensive Plan does not provide a plan for the impending

closure. The Pending Comprehensive Plan would require the City to provide the

funding for solid waste disposal improvements.

14. The clear goal of the Ordinance was to delay the approval of certain

CIAS applications, site plans and building permits for 180 days while work

continued on the Pending Comprehensive Plan. The City contends that the

moratorium will help it to effectively implement the policies which it

anticipates will be incorporated in the new comprehensive plan when it is

finally in place. The Ordinance provided that the 180 day moratorium would

begin on the effective date of the administrative rule approving the Ordinance.

The City and DCA were concerned that normal administrative rulemaking time

periods would defeat the purpose of the Ordinance. Normal rulemaking pursuant

to Section 120.54, Florida Statutes, generally takes between 90 to 120 days.

15. Many local governments experience a significant increase in

development proposals immediately prior to the adoption of a new comprehensive

plan. Many of these proposals are prompted by a fear as to the impact of the

new plan and seek to acquire vested rights under the old plan. The City and DCA

were concerned that such an increase in development proposals might complicate

the planning process by rendering some aspects or assumptions of a new plan moot

before the plan could even be adopted. Moratoria are frequently used by local

governments in order to complete an effective comprehensive plan without the

need for changes.

16. In the year immediately proceeding the adoption of the Pending

Comprehensive Plan by the City Commission (from September 1990 through September

1991), the City received seven CIAS applications. No CIAS applications had been

received during the year prior. The City contends that many of the 1990/1991

applications were motivated by an attempt to obtain vested development rights.

However, no persuasive evidence to support this speculation was presented.

17. The City Commmission did not consider any reports, studies or other

data in connection with the enactment of the Ordinance. At the time the

Ordinance was adopted, the City Commission did not make any specific

determinations that there were any immediate dangers to the public health,

safety or welfare of the community nor was the Ordinance enacted as an emergency

ordinance.

18. After its adoption by the City Commission, the Ordinance was

transmitted to DCA on September 5, 1991 for approval pursuant to Section

380.0552(9), Florida Statutes. The only information transmitted to DCA was a

copy of the Ordinance.

19. As indicated above, the City and DCA were concerned that normal

administrative rulemaking time periods would defeat the purpose of the City's

Ordinance. The City Planner contacted DCA to request approval of the Ordinance

by emergency rule. The City Planner and DCA concurred in the conclusion that

the purpose of the Ordinance would be defeated if it was not immediately

implemented.

20. The City Commission did not specifically ask or authorize the City

Planner to request DCA to enact the Ordinance by emergency rule.

21. The City's concerns included, among other things, that the conversions

of residential properties to transient tourist accommodations would accelerate

during the process of finalizing the Pending Comprehensive Plan. In addition,

the City expects that its new comprehensive plan will reexamine the densities in

coastal high hazard areas. By adopting a moratorium, the City sought to insure

that any new developments will comply with the new densities ultimately adopted.

22. On September 18, 1991, DCA filed the rule packet for the Emergency

Rule with the Secretary of State and the Emergency Rule became effective on that

date. DCA did not prepare an economic impact statement for the Emergency Rule.

The rule packet consisted of: (a) a Certification Of Emergency Rule; (b) the

Notice Of Emergency Rule; (c) a Statement Of The Specific Facts And Reasons For

Finding An Immediate Danger To The Public Health, Safety And Welfare, (the

"Statement of Specific Reasons") and (d) a Statement of the Agency's Reasons for

Concluding that the Procedure Used Is Fair under the Circumstances (the "Agency

Conclusions").

23. The Notice of Emergency Rule appeared in the September 27, 1991

edition of the Florida Administrative Weekly.

24. In the Statement of Specific Reasons, DCA concluded that:

...Generally, a [comprehensive] plan revision process

stimulates an accelerated rate of permit requests.

Accelerated permitting including the acquisition of

vested rights during a planning period will severly

erode the City's ability to effectively revise and

implement the comprehensive plan. Such accelerated

development will also lead to further deterioration of

current hurricane evacuation clearance time for the

City. This action will increase the existing potential

for loss of life and injury to person [sic] and

property, will cause further deterioration of level

[sic] of service on existing roadways and will lead to

irreversible environmental degradation. Therefore this

rule must be adopted by emergency procedures because of

the potential immediate danger to the public health,

safety and welfare.

25. In the Agency Conclusions, DCA concluded:

The emergency rulemaking is fair because (1) it

immediately approves the ordinance as adopted by the

City of Key West Commission and (2) normal rulemaking

would moot the intent of the adopted ordinance since

the City of Key West would be required to continue

accepting applications for building permits, site

plans, of [ CIAS's] covering work projects or both, as

set forth in Section 2 of ordinance 91-25 until the

Department's rule approving the ordinance becomes

effective.

26. DCA's Statement of Specific Reasons was not reviewed or discussed with

the City or its planner prior to its preparation.

27. In deciding to promulgate the Emergency Rule, DCA considered the major

public facilities and natural resource problems confronting the City and the

City's proposed strategy to deal with these problems in the Pending

Comprehensive Plan. DCA concluded that an immediate danger to the public

health, safety, and welfare currently exists within the City justifying the

approval of the Ordinance by emergency rule. The evidence clearly indicates

that the City is facing many significant problems from a planning perspective.

Petitioner contends, however, that there is no evidence that any of those

problems present an "immediate" threat to the public health, safety or welfare.

For the reasons set forth in the Conclusions of Law below, this contention is

rejected.

28. On October 10, 1991, DCA filed a rule packet for the Proposed Rule

with the Secretary of State. The rule packet consisted of the Notice Of

Proposed Rule 9J-22.013, the Estimate of Economic Impact on All Affected Persons

(the " EIS",) a Statement of the Facts and Circumstances Justifying Proposed Rule

9J-22.013 (the "Statement of Facts"), a summary of the Proposed Rule, a

Comparison with Federal Standards, a Statement of Impact on Small Business and

the text of the Proposed Rule.

29. The Notice of Proposed Rule 9J-22.013 appeared in the October 18, 1991

edition of the Florida Administrative Weekly. On October 24, 1991, DCA filed a

Notice of Change with the Secretary of State, stating that the correct number

for the Proposed Rule was 9J-22.014, since 9J-22.013 had already been used. The

Notice of Change appeared in the November 1, 1991 edition of the Florida

Administrative Weekly.

30. DCA did not consider any appraisals, data, reports or other studies

concerning the economic impact that could result from the imposition of a

moratorium. Instead, DCA followed the approach it had used in approving prior

ordinances enacted by the City and concluded that its role in reviewing the

Ordinance for compliance with the Priniciples Guiding Development did not

require an examination of the economic impact of the underlying policy decisions

reached by the City Commission in adopting the Ordinance.

31. The EIS states that:

Costs and benefits will occur as a result of this

ordinance and were considered by the City prior to

adoption of the ordinance.

32. The City did not provide any information to DCA on the economic

impacts of the Ordinance or on the impact of the Ordinance on the value of

properties affected by it. The evidence was unclear as to the extent to which

the City Commission considered economic impacts in deciding to adopt the

Ordinance.

33. Several public hearings were held in connection with the adoption of

the Ordinance and DCA assumed that interested parties had an opportunity to

express their concerns regarding the economic impact of the Ordinance at these

hearings. DCA did not inquire as to the number of projects under review by the

City at the time the Ordinance was passed nor did it seek a determination as to

whether any projects with vested rights were affected by the Ordinance.

34. The City Planning Department has retained a consultant, as required by

the Ordinance, to conduct an economic study of existing conditions and

projections for future growth. The purpose of this study is to assist in

developing future amendments to the Ordinance. The study is not final and was

not considered by the Key West City Commission when the Ordinance was enacted.

35. DCA concluded that the proposed moratorium adopted by the Key West

City Commission was consistent with the Principles for Guiding Development.

Therefore, DCA concluded that Section 380.0552 required it to approve the

Ordinance. Petitioner has not presented any persuasive evidence to establish

that the Ordinance is in any way inconsistent with the Principles for Guiding

Development.

36. Petitioner owns 6.8 acres of vacant real property on Atlantic

Boulevard in the City. He purchased the property in 1974 with the intent to

develop it.

37. Petitioner's property is located in an R-2H zoning district. The

City's future land use map designates Petitioner's property as multi-family.

38. Petitioner has spent approximately $71,000.00 to hire architects,

engineers, surveyors, planners, biologists and attorneys to aid him in preparing

to develop the subject property.

39. In 1989, Petitioner submitted applications for a Department of

Environmental Regulation Surface Water Management permit, and an Army Corps of

Engineers dredge-and-fill permit, but neither of those permits have been issued

to date. Generally the City requires a developer to obtain these "higher-order"

permits prior to issuing a building permit. Petitioner has never applied for or

installed sewer service, water service or any other utility service to the

property. Since he acquired the property, Petitioner has not cleared any

vegetation on the property except for minor trimming adjacent to the roadway

which was required by the City for safety purposes.

40. In June of 1989, the City passed a resolution notifying the Department

of Environmental Regulation that it opposed Petitioner's application to place

fill upon the property.

41. On April 10, 1991, Petitioner submitted a CIAS to the City for a

proposed 96 unit residential development in three buildings on the subject

property.

42. Before the Ordinance was enacted, the City Planner prepared a report

dated July 3, 1991 reviewing Petitioner's CIAS as required by the CIAS

ordinance. In that review, the City Planner concluded:

The project is located in the R-2H zoning district and

conforms to all provisions of that district, thus

requiring no variances or special exceptions.

43. On August 6, 1991, the Key West City Commission considered

Petitioner's CIAS. The City Commission refused to approve the Petitioner's CIAS

application. Specifically, the City Commission determined that Petitioner's

CIAS application was incomplete and that the "submerged land district"

designation ("SL") applied to the Petitioner's property as an overlay zoning

district because Petitioner's property is located in an area which is deemed to

include wetlands and mangroves. The City Commission requested that the CIAS

address the "submerged land district" before the CIAS application could be

deemed complete.

44. The City Planner was not present at the August 6, 1991 City Commission

meeting.

45. The "submerged land district" in Section 35.07(f), City of Key West

Code, provides that the density and site alteration of "environmentally

sensitive areas including but not limited to wetland communities, mangroves,

tropical hardwood hammocks and salt ponds shall be zoned with a maximum density

of one (1) unit per acre. Site alteration shall be limited to a maximum of ten

(10) percent of the total size." The "submerged land district" overlay zone

applies to any parts of the property which fall within the description of

"environmentally sensitive areas" in Section 35.07, City of Key West Code.

46. Because there is confusion over the interpretation and applicability

of the SL district and because the SL land use district does not appear on the

City's official zoning map, it was not considered in the preparation of the July

3 Report.

47. The evidence in this case was inconclusive as to whether Petitioner's

property is located in a SL district and/or whether Petitioner's CIAS for his

property can be approved under the City regulations in place prior to the

adoption of the Ordinance.

48. On August 22, 1991, Petitioner submitted an amendment to the CIAS as

well as a Site Plan. The amendment to the CIAS contests the City's conclusion

that Petitioner's property should be considered part of a SL district.

49. As set forth above, during this time period, the City had began

consideration of the Ordinance. The first hearing on the Ordinance was held on

June 18, 1991 and the Ordinance was passed by the City Commission on September

3, 1991.

50. The City Planner notified Petitioner by letter dated October 11, 1991,

that his CIAS Site Plan review and approval had been "stayed" because of the

enactment of the Ordinance and because of the project's "inconsistencies with

the City's Pending Comprehensive Plan." Petitioner requested an exception from

the effect of the Ordinance pursuant to the procedure contained in the

Ordinance. A hearing was held before the City Commission and the request was

denied.

CONCLUSIONS OF LAW

51. The Division of Administrative Hearings has jurisdiction of the

subject matter and the parties hereto pursuant to Sections 120.54(4) and

120.56(4), Florida Statutes (1991).

52. Pursuant to Section 120.54(4)(a):

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.

53. Section 120.56(1), Florida Statutes (1991), provides as follows:

Any person substantially affected by a rule may seek an

administrative determination of the invalidity of the

rule on the ground that the rule is an invalid exercise

of delegated legislative authority.

54. Respondent and Intervenor assert the Petitioner lacks standing because

his CIAS and Site Plan are not approvable under the City's existing land use

regulations, in particular the SL designation. That conclusion is beyond the

scope of this proceeding. It is clear that the Petitioner submitted a CIAS on

April 10, 1991, and later submitted an amended CIAS and Site Plan on August 22,

1991. On October 11, 1991, the City informed Berg that his amended CIAS and

Site Plan had been "stayed" because of the Ordinance. On November 26, 1991, the

City conducted a hearing under the Ordinance to determine whether Petitioner's

project should be exempted. No exemption was granted.

55. Thus, Petitioner's project has been stayed as a direct result of the

Ordinance which only became effective upon the emergency approval by DCA. Any

further review of the project under the City's land development regulations has

been halted. In view of these circumstances, it is concluded that Petitioner

has standing to challenge the Proposed Rule as well as the Emergency Rule.

56. 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 rule-making procedure set forth in Section

120.54;

(b) The agency has exceeded its grant of rule-making

authority, citation to which is required by Section

120.54(7);

(c) The rule enlarges, modifies, or contravenes the

specific provisions of law implemented, citation to

which is required by Section 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.

Section 120.52(8), Florida Statutes.

57. As set forth in Agrico Chemical Co. v. State Department of

Environmental Regulation, 365 So.2d 759, 763 Fla. 1st DCA 1978), cert. denied,

376 So.2d 74 (Fla. 1979):

...[I]n a 120.54 hearing, the hearing officer must look

to the legislative authority for the rule and determine

whether or not the proposed rule is encompassed within

that grant. The burden is upon one who attacks the

proposed rule to show that the agency, if it adopts the

rule, would exceed its authority; that the requirements

of the rule are not appropriate to the ends specified

in the legislative act; that the requirements contained

in the rule are not reasonably related to the purpose

of the enabling legislation or that the proposed rule

or the requirements thereof are arbitrary or

capricious.

* * *

The requirement that a challenger has the burden of

demonstrating agency action to be arbitrary or

capricious or an abuse of administrative discretion is

a stringent one indeed.

58. In Department of Health and Rehabilitative Services v. Framat Realty,

Inc. 407 So.2d 238 (Fla. 1st DCA 1981), the First District Court of Appeal

reversed a hearing officer's order invalidating a rule as beyond the

department's statutory authority. In reversing, the court made clear that

administrative rules must be upheld as long as the rule is within the range of

permissible interpretations of the statute, and that it is inappropriate to go

further to investigate whether the department's interpretation of the statute is

the only possible interpretation or the most desirable one. See also,

Department of Administration v. Nelson, 424 So.2d 852 (Fla. 1st DCA 1982); Adam

Smith Enterprises v. Florida Department of Environmental Regulation, 553 So.2d

1260, 1274 n.23 (Fla. 1st DCA 1989).

59. In sum, agencies are to be accorded wide discretion in the exercise of

their lawful rule making authority. Department of Professional Regulation,

Board of Medical Examiners v. Durrani, 455 So.2d 515 (Fla. 1st DCA 1984);

Florida Commission on Human Relations v. Human Development Center, 413 So.2d

1251 (Fla. 1st DCA 1982). Furthermore, the goals and intent of the legislative

grant of rule making authority must be considered in deciding whether to

invalidate a proposed rule or an existing rule. See, Florida Waterworks

Association v. Florida Public Service Commission, 473 So.2d 237 (Fla. 1st DCA

1985), rev. den. 486 So.2d 596 (Fla. 1986).

60. Sections 380.05(6) and (11), Florida Statutes, constitute both the

specific authority for and the law implemented by the Emergency Rule and the

Proposed Rule. DCA is required to review the Emergency Rule and the Proposed

Rule solely to determine their compliance with the Principles for Guiding

Development. As indicated in the Findings of Fact above, DCA concluded that the

Ordinance is consistent with the Principles for Guiding Development contained

within Rule 28-36.003, Florida Administrative Code. Therefore, DCA was required

by Section 380.05, Florida Statutes, to approve the Ordinance by rule.

61. Whether or not the moratorium is appropriate or legally justified is

beyond the scope of this proceeding. However, it is noted that, generally, a

moratorium is considered valid as long as it is formally enacted as an ordinance

in accord with all procedural requirements. "[B] uilding moratoria are vitally

related to the public welfare, health and safety, and ... such 'holding devices'

are valid pending a comprehensive evaluation of environmental values." Jason v.

Dade, 37 Fla. Supp. 190, 192 ( Dade County Cir. Ct. 1972). A moratorium is an

appropriate planning tool for a local government to use when the local

government is adopting a new comprehensive plan. Franklin County v. Leisure

Properties, Ltd., 430 So.2d 475 (Fla. 1st DCA 1983). "A local government may be

confronted with the need to amend its current plan prior to the adoption of a

new plan in order to prevent the establishment of undesirable construction which

would be inconsistent with the goals of the new plan." Id. at 481. In dicta,

the Fourth District Court of Appeal recently concurred with the reasoning of

Leisure Properties and noted that the "...forestalling of 'undesirable

construction which would be inconsistent with the goals of the new plan' is

accomplished through the proper enactment of an ordinance imposing moratorium."

Gardens Country Club, Inc. v. Palm Beach County, 590 So.2d 488, 491 (Fla. 4th

DCA 1991).

62. Petitioner offered no persuasive evidence that any aspect of either

the Emergency Rule or the Proposed Rule was arbitrary or capricious,

inconsistent with the enabling statutes, or otherwise invalid. The main

arguments raised by Petitioner in this case were that the Emergency Rule was

invalid because there is no immediate danger to the public health, safety and

welfare and the Proposed Rule should be invalidated because no adequate EIS was

provided.

63. In evaluating Petitioner's arguments, it is important to keep in mind

the legislative objectives behind the rulemaking in this case. The Area of

Critical State Concern program is intended to protect invaluable environmental

and natural resources of regional or statewide importance through DCA oversight

of land development regulations which are adopted by local governments located

within Areas of Critical State Concern. Section 380.05, Florida Statutes. To

assert that local governments in Areas of Critical State Concern cannot adopt

moratoria without the delay caused by the rulemaking process would impose an

unnecessary bureaucratic obstacle to the enactment of new City Ordinances or

policies. The policy decisions inherent in a local government's decision to

impose a building moratorium should not be subject to challenge and review

pursuant to Chapter 120, Florida Statutes simply because the property in

question has been designated an Area of Critical State Concern. Instead, any

challenge should be limited to a review of DCA's determination of the

consistency of the local government's actions with the Principles for Guiding

Development.

64. As indicated in the Findings of Fact above, the City is facing serious

problems with water quality, potable water supply, solid and liquid waste,

transportation and hurricane evacuation. These problems motivated the City to

adopt a moratorium. In the context of this case, these problems represent a

sufficient present danger to justify the approval of the Ordinance by emergency

rule.

65. The Area of Critical State Concern designation should not be

interpreted to affect the City of Key West's authority to adopt a moratorium

under appropriate circumstances.2

66. An administrative agency is authorized to adopt an emergency rule upon

a finding that an immediate danger to the public health, safety, or welfare

exists. An agency is authorized to adopt any rule necessitated by the immediate

danger by an procedure which is fair under the circumstances and necessary to

protect the public interest. Section 120.54(9)(a), Florida Statutes.

67. While the agency reasons for finding a genuine emergency must be

factually explicit and persuasive, see, Florida Homebuilders Association v.

Division of Labor, 355 So.2d 1245, 1246 (Fla. 1st DCA 1978); Golden Rule Inc. v.

Department of Insurance, 586 So.2d 429 (Fla. 1st DCA 1991), the courts have

approved state agencies availing themselves of emergency rule procedures to

bring their programs in accord with legislative objectives. Little v. Coler,

557 So.2d 157, 159 (Fla. 1st DCA 1990).

68. Unfortunately, time delays automatically built into the rule making

process could preclude the Ordinance from becoming effective for several months

absent approval by emergency rule. While the evidence does not necessarily

indicate the collapse or failure of any public facility is imminent, DCA would

be seriously impeding the implementation of the City's policy determination to

enact a moratorium if it failed to promptly approve the Ordinance. In view of

the purpose of DCA's review of the Ordinance and considering all of the

circumstances of this case, it would be a mistake to require evidence of the

imminent failure of some public facility before allowing DCA to adopt an

emergency rule so that an important policy decision of the City can be

immediately implemented. As noted above, the requirement that DCA approve the

City's land development regulations is only intended to ensure that the

regulations are in compliance with the Principles Guilding Development. It is

not intended to otherwise interfere with or delay the policy determinations of

the City.

69. The procedures used to adopt the Emergency Rule were fair under the

circumstances and DCA properly deemed them to be necessary and appropriate to

protect the public interest. The proper standard for such a determination is

whether there was an abuse of discretion. Little v. Coler, 557 So.2d 157, 160

(Fla. 1st DCA 1990). In this case, the moratorium was advertised in local

newspapers as a local ordinance and was subject to public comment at several Key

West City Commission meetings. It was adopted by local officials with the

authority to do so. The procedures followd by DCA in this case were fair and

appropriate given its limited review function.

70. An economic impact statement is not required for emergency rules

adopted pursuant to Section 120.54(9), Fla. Stat. Therefore, DCA's failure to

prepare an economic impact statement for the Emergency Rule is not a basis for

invalidating that Rule.

71. Petitioner's challenge to the Proposed Rule was premised largely on

the purported inadequacy of the EIS. Petitioner argues that DCA is required to

follow the rulemaking procedures of Section 120.54, Fla. Stat. (1991), which

require both a summary of the estimate of the economic impact of the proposed

rule on all persons affected by it and a detailed economic impact statement

reflecting information on the economic impact of the proposed agency action.

This is to ensure a comprehensive and accurate analysis

of economic factors; which factors work together with

social factors and legislative goals underlying agency

action; to direct agency attention to key

considerations and thereby facilitate informed

decision-making; and finally to expose the

administrative process to public scrutiny.

Department of Health and Rehabilitative Services v. Wright, 439 So.2d 937, 940

(Fla. 1st DCA 1983).

72. Petitioner correctly points out that the failure to prepare an

economic impact statement may be fatal to the validity of the rule. Department

of Health and Rehabilitative Services v. Wright, 439 So.2d 937 (Fla. 1st DCA

1983); Polk v. The School Board of Polk County, 373 So.2d 960 (Fla. 2nd DCA

1979). However, deficiencies in an economic impact statement are not

grounds to invalidate a proposed rule as long as the deficiency in the economic

impact statement does not impair the fairness of the rule-making proceedings

and, therefore, the harmless error doctrine will apply. Plantation Residents'

Assn., Inc. v. Broward County School Bd., 424 So.2d 879 (Fla. 1st DCA 1982),

pet. for rev. den., 436 So.2d 100 (Fla. 1983).

73. The absence or insufficiency of an economic impact statement is

harmless error if it is established that the rule implements already established

procedures, or if it is shown that the agency fully considered the asserted

economic factors and impact. Department of Health and Rehabilitative Services

v. Wright, 439 So.2d 937 (Fla. 1st DCA 1983); Florida-Texas Freight, Inc. v.

Hawkins, 379 So.2d 944 (Fla. 1979). The economic impact statement for the

Proposed Rule is not materially deficient when judged by these standards.

74. Again, it is important to keep in mind that the policy decision to

impose a moratorium was made by the City and not DCA. To require DCA to conduct

an economic study on this underlying policy choice would frustrate the

legislative purpose of requiring DCA to review the Ordinance for compliance with

the Principles Guiding Development.

75. In his Petitions to invalidate the Rules, Petitioner alleged several

additional grounds. However, no persuasive evidence or argument was presented

to support those grounds. It is noted that Petitioner has alleged that the

Ordinance is unconstitutional for, among other reasons, failing to prescribe

definite standards. See, City of Miami v. Save Brickell Ave. Inc., 426 So.2d

1100 (Fla. 3rd DCA 1983); Askew v. Cross Key Waterways, 372 So.2d 913 (Fla.

1978). Whether a proposed rule is constitutional can properly be addressed in a

Section 120.54 proceeding. Department of Environmental Regulation v. Leon

County, 344 So.2d 297 (Fla. 1st DCA 1977). The legislature has also recognized

that emergency rules are "subject to applicable constitutional and statutory

provisions." Section 120.54(9)(d), Florida Statutes. However, the City is not

a State agency subject to the "Administrative Procedure Act", Chapter 120,

Florida Statutes (1991). Therefore, Petitioner can not directly challenge the

constitutionality of the Ordinance in this administrative hearing. See, Hill v.

Monroe County, 581 So.2d 225 (Fla. 3rd DCA 1991). In view of the limited role

of DCA in reviewing the Ordinance as set forth above, Petitioner's

constitutional challenge to the Proposed Rule is rejected.

ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

ORDERED that the Petitioner's challenge to the Proposed Rule and the

Emergency Rule are dismissed.

DONE AND ORDERED this 8th day of May, 1992, at Tallahassee, Florida.

___________________________________

J. STEPHEN MENTON, 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 8th day of May, 1992.

ENDNOTES

1/ Since the hearing, DCA has promulgated a Second Emergency Rule, 9J-ER-91-4,

which extends the challenged Emergency Rule. For purposes of this Recommended

Order, the references to "Emergency Rule" will include both Rule 9J-ER-91-3 and

9J-ER-91-4 references.

2/ Section 380.05(1)(b), Florida Statutes, provides that, "The [Administration

Commission] is not authorized to adopt any rule that would provide for a

moratorium on development in any area of critical state concern." This

prohibition is intended to limit the Administration Commission from imposing or

requiring a moratorium. It is not applicable in this case since DCA's only duty

is to approve or reject comprehensive plan amendments and land development

regulations initiated by the City. Such review is beyond the scope of Section

380.05(1)(b).

APPENDIX TO FINAL ORDER, CASE NOS. 91- 7243RP and 91- 7283RP

All parties have submitted Proposed Recommended Orders. The following

constitutes my rulings on the proposed findings of fact submitted by the

parties.

The Petitioner's Proposed Findings of Fact

Proposed Paragraph Number in the Findings of

Finding of Fact in the Final Order Where Accepted

Fact Number or Reason for Rejection

1. Adopted in substance in Findings of Fact 36.

2. Adopted in substance in Findings of Fact 38.

3. Subordinate to Findings of Fact 40.

4. Subordinate to Findings of Fact 8.

5. Adopted in substance in Findings of Fact 41 and 48.

6. The first two sentences are adopted in

substance in Findings of Fact 6. The last

sentence is rejected as unnecessary.

7. Adopted in substance in Findings of Fact 9 and 49.

8. Subordinate to Findings of Fact 43, 44 and 46.

9. Subordinate to Findings of Fact 46.

10. Adopted in substance in Findings of Fact 50.

11. Adopted in substance in Findings of Fact 9.

12. Rejected as unnecessary.

13. Adopted in substance in Findings of Fact 10 and 37.

14. Adopted in substance in Findings of Fact 10 and 12.

15. Rejected as vague and unnecessary.

16. Subordinate to Findings of Fact 17.

17. Subordinate to Findings of Fact 17.

18. Subordinate to Findings of Fact 17.

19. Rejected as unnecessary.

20. Subordinate to Findings of Fact 17.

21. Adopted in substance in Findings of Fact 17.

22. Subordinate to Findings of Fact 14, 15, 18 and 19.

23. Adopted in substance in Findings of Fact 18.

24. Adopted in substance in Findings of Fact 20.

25. Subordinate to Findings of Fact 14, 15, 19 and 21.

26. Subordinate to Findings of Fact 21.

27. Adopted in substance in Findings of Fact 26.

28. Rejected as vague and unnecessary.

29. Subordinate to Findings of Fact 15 and 16.

30. Rejected as unnecessary.

31. Rejected as unnecessary.

32. Rejected as unnecessary.

33. Subordinate to Findings of Fact 17.

34. Subordinate to Findings of Fact 18, 19 and 27.

35. Subordinate to Findings of Fact 18 and 27.

36. Subordinate to Findings of Fact 14, 15, 21 and 27.

37. Subordinate to Findings of Fact 27.

38. Subordinate to Findings of Fact 16.

39. Subordinate to Findings of Fact 16 and 27.

40. Subordinate to Findings of Fact 30 and 31.

41. Adopted in substance in Findings of Fact 30.

42. Subordinate to Findings of Fact 33.

43. Subordinate to Findings of Fact 30-33.

44. The first sentence is rejected as

unnecessary. The second sentence is adopted

in substance in Findings of Fact 33.

45. The first sentence is adopted in substance

in Findings of Fact 31. The remainder of

this proposal is subordinate to Findings of

Fact 32 and 33.

46. The first sentence is adopted in substance

in Findings of Fact 32. The second sentence

is rejected as unnecessary.

47. Adopted in substance in Findings of Fact 34.

48. Addressed in the Conclusions of Law.

49. Rejected as unnecessary. The issue of

whether Petitioner's project could or should

have been exempted from the Ordinance is

beyond the scope of this proceeding.

50. Rejected as unnecessary.

The Respondents's Proposed Findings of Fact

Proposed Paragraph Number in the Findings of Fact

Finding of in the Final Order Where Accepted or Reason

Fact Number for Rejection.

1. Adopted in substance in Findings of Fact 1.

2. Adopted in substance in Findings of Fact 2 and 10.

3. Adopted in substance in Findings of Fact 10-12.

4. Subordinate to Findings of Fact 15.

5. Adopted in substance in Findings of Fact 6 and 7.

6. Adopted in substance in Findings of Fact 8.

7. Subordinate to Findings of Fact 14-16, 21 and 27.

8. Rejected as unnecessary except subparagraph b is

adopted in substance in Findings of Fact 41, 43, 48

and 50.

9. Subordinate to Findings of Fact 13.

10. Subordinate to Findings of Fact 32 and 33.

11. Adopted in substance in Findings of Fact 18.

12. Adopted in substance in Findings of Fact 14.

13. Adopted in substance in Findings of Fact 22.

14. Adopted in substance in Findings of Fact 24 and 27.

15. Adopted in substance in Findings of Fact 28.

16. Adopted in substance in Findings of Fact 29.

17. Adopted in substance in Findings of Fact 29.

18. Subordinate to Findings of Fact 30 and 31.

19. Subordinate to Findings of Fact 35.

20. Adopted in substance in Findings of Fact 36-39.

21. Adopted in substance in Findings of Fact 41 and 48.

22. Addressed in paragraph 4 of the Conclusions of Law.

23. Subordinate to Findings of Fact 43, 45 and 47.

24. Adopted in substance in Findings of Fact 45.

The Intervenor's Proposed Findings of Fact

Proposed Paragraph Number in the Findings of Fact

Finding of in the Final Order Where Accepted or Reason

Fact Number for Rejection.

1. Adopted in substance in Findings of Fact 39.

2. Adopted in substance in Findings of Fact 39.

3. Adopted in substance in Findings of Fact 39.

4. Adopted in substance in Findings of Fact 39.

5. Adopted in substance in Findings of Fact 39.

6. Subordinate to Findings of Fact 43, 46 and 50.

7. Subordinate to Findings of Fact 46 and 47.

8. Subordinate to Findings of Fact 46 and 47

and paragraph 4 of the Conclusions of Law.

9. Adopted in substance in Findings of Fact 50.

10. Addressed in paragraph 4 of the Conclusions of Law.

11. Subordinate to Findings of Fact 15 and 16.

13.[sic] Rejected as unnecessary.

14. Rejected as unnecessary. No challenge was made to

the procedures followed in adopting the Ordinance.

15. Rejected as unnecessary.

16. Rejected as unnecessary.

17. Rejected as unnecessary.

COPIES FURNISHED:

Linda Shelley, Secretary

Department of Community Affairs

2740 Centerview Drive

Tallahassee, Florida 32399

G. Steven Pfeiffer, General Counsel

Department of Community Affairs

2740 Centerview Drive

Tallahassee, Florida 32399

Andrew M. Tobin, Esquire

Mattson & Tobin

P. O. Box 586

Key Largo, Florida 33037

Katherine Castor

Assistant General Counsel

David L. Jordan

Assistant General Counsel

Department of Community Affairs

2740 Centerview Drive

Tallahassee, Florida 32399-2100

Leslie K. Dougall

Assistant City Attorney

City of Key West

P. O. Box 1409

Key West, Florida 33041-1409

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 32399-0250

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.