96-004857 Sewell Corkran vs. Administration Commission And Department Of Community Affairs Status: Closed DOAH Final Order on Monday, April 21, 1997.

Summary: Rules of Big Cypress area governing development not invalid as arbitrary or vague.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SEWELL CORKRAN, )

)

Petitioner, )

)

vs. ) CASE NO. 96-4857RGM

)

ADMINISTRATION COMMISSION, )

)

Respondent. )

___________________________________)

FINAL ORDER

On January 29, 1997, a formal administrative hearing was

held in this case in Tallahassee, Florida, before Richard Hixson,

Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Sewell Corkran, representing himself

213 9th Avenue South

Naples, Florida 33940-6847

For Respondent: Colin M. Roopnarine, Esquire

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399-2100

STATEMENT OF THE ISSUE

The issue for determination in this case is whether Rules

28-25.004 and 28-25.006(1), Florida Administrative Code , are

vague and arbitrary as defined in Sections 120.52(8)(d) and (e),

Florida Statutes , and therefore constitute an invalid exercise of

delegated legislative authority.

PRELIMINARY STATEMENT

On September 23, 1996, Pet itioner, SEWELL CORKRAN, filed a

Petition challenging the validity of Rules 28-25.004 and 28-

25.006(1), Florida Administrative Code , on the grounds that such

rules were too vague and arbitrary to establish adequate

standards for implementation of the purpose of the rules to

protect the natural resources and regulate development in the Big

Cypress Area, designated as an Area of Critical State Concern.

The Petition named as Respondent, the ADMINISTRATION COMMISSION;

however, by letter dated November 5, 1996, the Department of

Community Affairs was duly authorized to represent the

ADMINISTRATION COMMISSION in this proceeding.

Pursuant to the joint motion of the parties, formal hearing

in this matter was continued to January 29, 1997. At hearing,

Petitioner testified in his own behalf, and presented four

exhibits which were received in evidence. The parties also

presented one joint exhibit which was received in evidence.

Respondent presented the testimony of one witness, Mike

McDaniel, Bureau Chief, Resource Planning and Management, of the

Department of Community Affairs. Respondent also presented one

additional exhibit which was received in evidence.

The transcript of the hearing was filed on March 7, 1997.

Petitioner filed his Proposed Final Order on March 14, 1997.

Respondent filed its Proposed Final Order on March 24, 1997.

FINDINGS OF FACT

1. Petitioner, SEWELL CORKRAN, is a resident of Collier

County, Florida, and past President of the Collier County Audubon

Society. Petitioner’s standing to bring this action was not

contested.

2. Respondent, ADMINISTRATION COMMISSION, is the agency of

the State of Florida vested with the statutory authority for the

promulgation of Rules 28-25.002, et seq., Florida Administrative

Code , pertaining to conservation and development within the Big

Cypress Area. The DEPARTMENT OF COMMUNITY AFFAIRS ( hereinafter

AGENCY) is duly authorized to represent the ADMINISTRATION

COMMISSION in these proceedings.

3. Rules 28-25.004 and 28-25-006(1), Florida Administrative

Code , set forth below, were adopted on November 28, 1973.

Stipulated Facts

4. There have been no examples of development in the Big

Cypress Area of Critical State Concern such as that described by

Petitioner, wherein lands that have been totally altered, have

been one-hundred percent developed subsequent to agriculture.

5. Development of ten (10) percent of a site in the Big

Cypress Area of Critical State Concern is a reasonably acceptable

amount of development.

Agency Administration of Rule Chapter 28-25

6 . As indicated above, Rule Chapter 28-25, Florida

Administrative Code , was initially promulgated in 1973 pursuant

to Section 380.05, Florida Statutes , for the purpose of

protection and conservation of the Big Cypress Area of Critical

State Concern (ACSC).

7. The challenged agricultur al exemption applicable to the

Big Cypress ACSC is set forth in Rule 28-25.004, Florida

Administrative Code , which provides:

Agricultural Exemption. The use of any land

for the purpose of growing plants, crops,

trees, and other agricultural or forestry

products, raising livestock or for other

purposes directly related to all such uses

are exempt from these regulations. However,

whenever any person carries out any activity

defined in Section 380, Florida Statutes , as

development or applies for a development

permit, as defined in Section 380, Florida

Statutes , to develop exempted land, these

regulations shall apply to such application

and to such land.

8. The challenged site alteration provisions of Rule 28-

25.006(1), Florida Administrative Code , limit such development to

ten percent providing:

Site Alteration. Site alteration shall be

limited to 10% of the total site size, and

installation of non permeable surfaces shall

not exceed 50% of any such area. However, a

minimum of 2,500 square feet may be altered

on any permitted site.

9. The AGENCY construes Rules 28-25.004 and 28-25.0061,

Florida Administrative Code , as complementary. Pursuant to the

agency’s construction and application of these rules, if a parcel

of land is exempted for agricultural purposes, and is then

altered for development purposes as defined in Section 380.04,

Florida Statutes (1995), that development, pursuant to Rule 28-

25.006(1), Florida Administrative Code , would be limited to only

ten percent of the total site size. Under the agency’s

construction and application, the rules are not mutually

exclusive, and regardless of an agricultural exemption,

development will only be allowed on a maximum of ten percent of

the total parcel. The agency makes no distinction made between

whether the site is pristine or has been previously disturbed.

10. The construction and application of the rules by the

agency has been consistent. In implementing these rules

development has been limited to only ten percent of a total site.

11. There is no evidence of any instances in which a site

that had been altered under the agricultural exemption was

subsequently altered for development purposes to an amount

greater than ten percent. There is no evidence that such a

subsequent alteration from agriculture to development has ever

been attempted.

12. The agency reviews all development orders that are

issued in the Big Cypress ACSC based upon established guidelines

and standards.

13. The evidence reflects that currently the AGENCY is in

the process of appealing a development order issued by Collier

County concerning Rule 28-25.006(1), Florida Administrative Code ,

which involves a request for development of a site previously

disturbed by a spoil bank. In that case, the amount of land to

be developed was proposed to be in excess of ten percent. The

requested conversion was not from agricultural to development, as

that term is defined in Section 380.04, Florida Statutes (1995).

Because the spoil bank disturbed more than ten percent of the

total site, the agency appealed the development order. The

record indicates that this appeal is currently going through

settlement negotiations wherein development will be limited to

ten percent, regardless of the size of the disturbed area created

by the spoil bank.

14. The agency considers a number of factors when amending

a rule. One of the factors is whether there has been much

controversy associated with the rule, which would be one

indication that the rule is so vague as to cause confusion in its

understanding and inconsistency in its application. This has not

been the case where these Big Cypress ACSC rules have been

applied.

15. County land development regulations may be stricter

then rules promulgated or approved by the AGENCY, pursuant to

Rule 28-25.013, Florida Administrative Code , which provides:

In case of a conflict between Big Cypress

Critical Area regulations and other

regulations which are a proper exercise of

authority of a governmental jurisdiction, the

more restrictive of the provisions shall

apply.

16. Collier County’s Land Development Regulation

3.9.6.5.1(7) is more restrictive than Rule 28-25.004, Florida

Administrative Code , which deals with the site alteration

exemption for agricultural purposes.

The following conditions, as applicable,

shall be addressed as part of and attachments

to the agriculture land clearing application:

* * *

(7) The property owner, or authorized agent,

has filed an executed agreement with the

development services director, stating that

within two years from the date on which the

agricultural clearing permit is approved by

the development services director, the

owner/agent will put the property into a bona

fide agricultural use and pursue such

activity in a manner conducive to the

successful harvesting of its expected crops

or products.

17. The agency does not have statutory authorization to

regulate agriculture, which is explicitly exempted from the

definition of development in Chapter 380, Florida Statutes

(1995), in the Big Cypress Area.

CONCLUSIONS OF LAW

18. The Division of Administrative Hearings has

jurisdiction over the parties to, and the subject of, this

proceeding. Sections 120.56(1) and 120.57(1), Florida Statutes .

19. Adopted agency rules are presumptively vali d, and the

burden is on the Petitioner challenging the rules to prove the

invalidity of a rule by a preponderance of the evidence. Section

120.56(3), Florida Statutes . See , Cortes v. State Board of

Regents , 655 So.2d 132 (Fla. 1 st DCA 1995).

20. Moreover, “great weight will be given to rules which

have been in effect over an extended period and the meaning

assigned to them by officials charged with their administration

unless clearly erroneous.” State Department of Commerce v.

Mathews Corporation , 358 So.2d 256, 260 (Fla. 1 st DCA 1978). The

rules challenged in this proceeding have been in existence since

1973, and the challenged rules have been applied by the agency in

a consistent manner since that time.

21. A rule is considered an “invalid exercise of delegated

legislative authority” if, “... [it] is vague, fails to establish

adequate standards for agency decisions, or vests unbridled

discretion in the agency; or if the rule is arbitrary or

capricious.” Section 120.52(8)(d) and (e), Florida Statutes .

22. The evidence fails to meet the burden of establishing

that the challenged rules are vague, arbitrary or capricious.

23. In accordance with Section 380.055, Florida Statutes

(1995), “The Big Cypress Conservation Act of 1973,” the Big

Cypress area was designated an area of critical state concern by

the Legislature. Section 380.07, Florida Statutes (1995),

provides the AGENCY with the authority to appeal any development

orders to the Administration Commission, in an area of critical

state concern. Development orders that may be issued in the Big

Cypress ACSC by a local government are subject to review by the

AGENCY, and if inconsistencies are found with the agency’s rules

or the Commission’s rules, then it can be appealed to the

Commission.

24. Section 380.04, Florida Statutes (1995), defines

development to specifically exclude agriculture. As such, the

agency does not have the specific legislative authority, under

subsection 120.536(1), Florida Statutes , to regulate agriculture.

Local governments, however, may institute land development

regulations relating to agriculture. Unlike other areas of

critical state concern, local governments in the Big Cypress are

not required to submit land development regulations to the agency

for approval. The agency, however, is authorized to make

recommendations and submit land development regulations to the

Administration Commission, which may adopt or modify such

regulations. Subsection 380.055(4), Florida Statutes (1995). In

the event that the county’s land development regulations are

stricter than the AGENCY’s administered rules, then the more

restrictive provisions shall apply in the Big Cypress ACSC. See

Rule 28-25.013, Florida Administrative Code .

25. The evidence presented fails to establish that Rules

28-25.004 and 28-25.006(1), Florida Administrative Code , are

vague and arbitrary as defined in Section 120.52(8)(d) and (e),

Florida Statutes . There is no evidence of development in the Big

Cypress Area in violation of the provisions of the rules. The

evidence shows that since 1973 the rules have been consistently

construed and applied by the agency to meet the purpose for which

the rules were promulgated.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, the Petition filed in this matter is hereby DISMISSED.

DONE and ORDERED this 21st day of April, 1997, in

Tallahassee, Florida.

___________________________________

RICHARD HIXSON

Administrative Law Judge

Division of Administrative Hearings

DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 21st day of April, 1997.

COPIES FURNISHED:

Sewell Corkran

213 9th Avenue South

Naples, Florida 33940-6847

Bob Bradley

Office of the Governor

The Capitol, Suite 209

Tallahassee, Florida 32399-0001

Colin M. Roopnarine, Assistant General Counsel

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399-2100

Liz Cloud, Chief

Bureau of Administrative Code

Department of State

The Elliott Building

Tallahassee, Florida 32399-0250

Carroll Webb, Executive Director

Administrative Procedures Committee

Holland Building, Room 120

Tallahassee, Florida 32399-1300

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 proscribed 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 thirty (30) days of rendition of the order to be

reviewed.