88-005797RP John L. Morris; E. L. &Quot;Shorty&Quot; Allen; E. L. Allen, Jr.; Wigwam, Inc.; And Monroe Company vs. Administration Commission And Department Of Community Affairs Status: Closed DOAH Final Order on Monday, March 20, 1989.

Summary: Successful rule challenge due to agency's failure to comply with economic impact and notice requirements even though proposed rules substantively valid

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

E.L. "SHORTY" ALLEN; WIGWAM, INC., )

a Pennsylvania Corporation registered )

to do business in Florida; and MONROE )

COUNTY ex rel. Wigwam, Inc., )

)

Petitioners, )

)

vs. ) CASE No. 88-5797RP

)

HONORABLE BOB MARTINEZ, Governor; )

HONORABLE ROBERT A. BUTTERWORTH, )

Attorney General; HONORABLE DOYLE )

CONNER, Commissioner of Agriculture; )

HONORABLE GERALD A. LEWIS, Comptroller; )

HONORABLE JIM SMITH, Secretary of )

State; HONORABLE TOM GALLAGHER, )

Insurance Commissioner and Treasurer; )

HONORABLE BETTY CASTOR, Commissioner )

of Education, as embers together )

constituting the Administration )

Commission of Florida, )

)

Respondents, )

and )

)

DEPARTMENT OF COMMUNITY AFFAIRS, )

)

Intervenor. )

__________________________________________)

FINAL ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned

Hearing Officer of the Division of Administrative Hearings, on January 4, 1989,

in Tallahassee, Florida.

APPEARANCES

For Petitioners: James A. Mattson, Esquire

Mattson & Tobin

Post Office Box 586

Key Largo, Florida 33037

William J. Roberts, Esquire

Roberts and Egan

217 South Adams Street

Tallahassee, Florida 32302

For Respondents: John W. Costigan, Esquire

P. Tim Howard, Esquire

Department of Legal Affairs

The Capitol, Suite 1502

Tallahassee, Florida 32399-1050

For Intervenor: David L. Jordan, Esquire

L. Katherine Funchess, Esquire

Department of Community Affairs

2740 Centerview Drive

Tallahassee, Florida 32399-2100

PRELIMINARY STATEMENT

On November 23, 1988, Petitioners timely filed a Petition for an

Administrative Determination, pursuant to Section 120.54(4), Florida Statutes,

that Respondents' proposed Rules 28-20.019, 28-20.022, and 28-20.023, Florida

Administrative Code, are an invalid exercise of delegated legislative authority.

Petitioners and Respondents agreed to the intervention of the Department of

Community Affairs in this proceeding, and leave to intervene was granted.

At the commencement of the final hearing, two other Petitions challenging

the validity of the same proposed rules (DOAH Case Nos. 88-5795R and 88-5799R)

and substantial portions of the Petition in this cause were voluntarily

dismissed in exchange for an agreement entered into by Respondents and

Intervenor that they would substantially amend the proposed rules under

consideration herein. The parties also stipulated that Petitioners Allen and

Wigwam, Inc., as owners of properties impacted by the proposed rules, are

substantially affected persons who, accordingly, have standing to challenge the

proposed rules.

Petitioners presented the testimony of Edward L. Allen, Sr., and William L.

Johnson. Additionally, Petitioners' exhibits numbered 1-12 were admitted in

evidence.

The Intervenor presented the testimony of James L. Quinn and Donald L.

Craig. Additionally, Intervenor's exhibits numbered 1 and 4-7 were admitted in

evidence.

Respondents presented no evidence.

Petitioners submitted posthearing proposed findings of fact in the form of

a Proposed Final Order. The Respondents and the Intervenor submitted jointly

proposed findings of fact in the form of a Proposed Final Order. A ruling on

each proposed finding of fact can be found in the Appendix to this Final Order.

FINDINGS OF FACT

1. Petitioner Edward L. Allen, Sr., is the owner of a parcel of land,

10.32 acres in area, located in Marathon, Monroe County, Florida. The property

is located between the Atlantic Ocean and U.S. 1, across from the Marathon

Airport. The property is undeveloped.

2. The Allen property is presently designated DR (designation resort).

Prior to the adoption of the current land use plan in 1986, the property was

zoned for condominiums and apartments.

3. Allen purchased his property in 1976. He expended $500 in early 1986

for an architectural drawing that was presented to the Monroe County Board of

County Commissioners to support his request that the property be designated DR.

He also paid his attorney "a lot of money" for services in obtaining the DR

designation. He has neither applied for nor received any development permits

for his parcel. He has no plans to develop his parcel, and he is holding his

property as an investment.

4. Petitioner Wigwam, Inc., is a Pennsylvania corporation authorized to do

business in Florida. Wigwam has a beneficial interest in a 4.8 acre parcel

located in Marathon, Monroe County, Florida, by virtue of a contract to purchase

entered into on May 24, 1986. Wigwam's property is also located between the

Atlantic Ocean and U.S. 1, across from the Marathon Airport.

5. At present, the portion of Wigwam's property from U.S. 1 running

approximately 300 feet toward the ocean is designated SR (suburban residential)

and the remainder is designated DR. The SR designation of the approximately

one-half acre fronting on U.S. 1 is alleged by Wigwam to be a map error not

reflected in the actual rezoning application and approval. The correction of

this map error is the subject of an administrative proceeding between Wigwam and

the Department of Community Affairs styled Residence Inn Ocean Resort v.

Department of Community Affairs, DOAH Case No. 88-3469RGM, pending before the

Division of Administrative Hearings. Prior to the adoption of the present land

use plan in 1986, Wigwam's property was designated SC (suburban commercial) and

prior to that it was zoned for apartments and condominiums.

6. Wigwam has not yet acquired title to its property under the Contract

For Sale and Purchase. The Contract contemplates that Wigwam will develop the

property by construction of a 96-room hotel. One condition that must be met

before the buyer is obligated to close the transaction is: "Approval of the

applicable zoning, fire control, planning commission and/or other public

agencies and authorities exercising jurisdiction over the intended use of the

Property to permit such intended use and/or development of the Property." If

this condition is not met, Wigwam may terminate the Contract, and all deposits

will be refunded to Wigwam.

7. Wigwam applied for and received a development order from Monroe County

that would authorize the construction of a 96-unit motel. The County's

development approval was appealed to the Florida Land and Water Adjudicatory

Commission by the Department of Community Affairs, acting as the State Land

Planning Agency pursuant to Chapter 380, Florida Statutes, and that appeal is

currently pending before the Division of Administrative Hearings as DOAH Case

No. 88-3450.

8. Wigwam has expended $852,490 in pursuit of approval for the proposed

96-room hotel. Of that sum, $133,868 represents accrued interest, and $72,000

has been spent for transferrable development rights (TDRs). From the face of

the Contract for Sale and Purchase, only $15,000 of Wigwam's expenditures to

date have been for the land. The remainder has been spent for architects,

engineers, attorneys, and other expenses to obtain the development order

approving construction of its proposed 96-room hotel.

9. On February 28, 1986, Monroe County enacted Resolution No. 049-1986,

which adopted the Monroe County Comprehensive Plan and Land Development

Regulations. Resolution No. 049-1986 was approved, with amendments, by the

Department of Community Affairs and the Administration Commission, effective

September 15, 1986. As part of the Comprehensive Plan, the entire County was

re-designated or rezoned, including the properties owned by Petitioners. The

properties owned by both Allen and Wigwam were designated DR in the Monroe

County Comprehensive Plan and Land Development Regulations.

10. The rules challenged in this proceeding propose to change the

designation on Allen's and Wigwam's properties from DR (designation resort) to

SR (suburban residential). Allen may build up to 15 hotel units per acre (155

units) on his land under its present DR designation but may only build one

residential dwelling unit per acre (10 units) if it is designated SR.

Similarly, the 96-room hotel approved by the Monroe County Board of County

Commissioners for Wigwam's property will no longer be permitted under the

proposed rules, and Wigwam would only be permitted to build one residential

dwelling unit per acre (4 units) under the proposed rules.

11. Immediately after the passage of the Monroe County Comprehensive Plan

and Land Development Regulations, the Department of Community Affairs contracted

with Monroe County to have Monroe County conduct a study of all properties

located in Monroe County designated as DR. After the submittal of the DR report

by Monroe County to the Department, several employees of the Department of

Community Affairs and several employees of Monroe County reviewed the 22

properties designated as DR in Monroe County. They developed four criteria and

applied the four criteria to each parcel. Based upon "balancing" those

criteria, they decided which parcels should retain the DR designation and which

parcels should receive a different designation. They selected 13 parcels for

which the DR designation should be removed. The Allen and the Wigwam properties

were among the 13.

12. The Secretary of the Department of Community Affairs determined that

he wished to amend the Monroe County Comprehensive Plan and Land Development

Regulations in several different ways. One of those ways involved reducing the

number of DR designations in Monroe County. He instructed his staff to draft

proposed rules to be presented to the Administration Commission to accomplish

those purposes. Between approximately July and September, 1988, Monroe County's

Planning Director, Donald Craig, and two other County employees met with

Department employees on several occasions to assist in drafting the proposed

rules.

13. On September 30, 1988, the Area of Critical State Concern

Administrator for the Department of Community Affairs directed a letter to the

Planning Director of Monroe County advising him that the Department had prepared

amendments to the Monroe County Comprehensive Plan and Land Development

Regulations, advising him that the Department was required by statute to consult

with Monroe County regarding changes the Department wished to have made in the

Monroe County Comprehensive Plan and Land Development Regulations, and enclosing

a copy of the rules drafted by the Department and County staff which are

challenged in this proceeding.

14. On October 18, 1988, the Board of County Commissioners of Monroe

County passed a resolution reciting that the Department of Community Affairs was

proposing to change, by rule, certain portions of the Monroe County

Comprehensive Plan and Land Development Regulations and providing, inter alia,

as follows: "The Board shall provide one of its members in attendance at such

workshops and meetings as shall be scheduled by the Department of Community

Affairs in order that the requirements of consultation as provided by statute

shall be satisfied."

15. On November 4, 1988, the Administration Commission published in the

Florida Administrative Weekly, Vol. 14, No. 44, notice of its proposed Rules

Nos. 28-20.019, 28-20.022, and 28- 20.023. That notice indicated that workshops

would be conducted on November 14, 15, and 16, 1988, at various locations within

Monroe County and further advised that a public hearing on the proposed rules

would be conducted on November 29, 1988.

16. Although the notice published in the Florida Administrative Weekly

purports to contain the full text of the proposed rules, only the full text of

proposed Rule 28-20.019 is included. Rules 28-20.022 and 28-20.023, the two

rules which substantially amend the Monroe County Comprehensive Plan and Land

Development Regulations and which are challenged in this proceeding, were not

set forth, nor was there a short and plain explanation of the purpose and effect

of the proposed rules. Instead, the notice only advised that the Comprehensive

Plan and Land Development Regulations were being amended and that all interested

persons could obtain a copy of the proposed rules by contacting the Executive

Office of the Governor in Tallahassee, Florida.

17. The notice of the workshops and public hearing on the proposed rules

published in the Monroe County newspapers by the Department of Community Affairs

contained no explanation of the purpose and effect of the proposed changes but

merely stated that changes were proposed to the following items: (1) contiguous

lots, (2) designation resorts, (3) affordable and employee housing, and (4) land

areas designated for commercial fishing. The newspaper notice advised

interested persons that they could obtain a copy of the proposed changes at the

Monroe County libraries and at the Monroe County planning offices.

18. A review of the text of the proposed rules filed by the Administration

Commission indicates that the proposed rules themselves fail to identify the

specific changes being proposed. The proposed rules also amend Chapters 9J-14

and 20-20 of the Florida Administrative Code but only refer to the chapters in

the Florida Administrative Code and the three-volume Monroe County Comprehensive

Plan and Land Development Regulations being amended without setting forth the

specific language of those administrative rules and of the Comprehensive Plan

being amended so that the reader can ascertain the purpose and effect of the

proposed rules. In other words, the administrative rules and the Monroe County

Comprehensive Plan, which were being extensively amended, were simply

incorporated by reference in the proposed rules.

19. The Summary of the Estimate of Economic Impact of the Rule published

in the Florida Administrative Weekly reads, in its entirety, as follows:

The cost to the Governor's Office will be

limited to the cost of adopting the rule.

There will be an economic impact on property

owners in Monroe County if 1) they own areas

presently designated as destination resort,

2) they construct projects which require

employee housing, 3) they own areas presently

affected by the contiguous lot provision, or

4) they own areas presently designated as one

of the three commercial fishing districts.

Monroe County will benefit due to an increase

in property tax revenue. There will be no

significant impact on competition, the open

market for labor or small businesses.

At the time the notice of the proposed rules appeared in the Florida

Administrative Weekly, there was, beyond the aforementioned summary, no economic

impact statement in existence.

20. By the time of the workshops on the proposed rules conducted on

November 14-16, 1988, the Department of Community Affairs had prepared for

distribution its Estimate of Revised Economic Impacts on All Affected Persons.

That economic impact statement fails to set forth the economic impact on the

persons affected by the proposed rules. It merely contains general statements

admitting that there will be an economic impact. As to the economic impact on

persons affected such as Allen and Wigwam, the economic impact statement

contains such language as the following:

There is expected to be some economic

impact....

Changes that affect owners of areas zoned as

Destination Resort Districts include: a

reduction in the maximum permitable [sic]

density, a requirement for employee housing,

the explicit statement of many of the

requirements which such resorts would have to

meet in order to be allowed to develop, and

the rezoning of some properties.

The reduction in allowable densities for

hotel rooms in destination resorts, and other

districts, may be expected to reduce somewhat

the value of such properties, but this short

term negative impact should be offset by

benefits to all Monroe County property

owners...

The costs of providing employee housing are

largely offset by the benefits derived from

having employee housing....

Explicit requirements for destination resorts

benefit the property owners and developers by

reducing uncertainly [sic] and preventing

investment of resources into impractical

proposals. Similarly, the rezoning of

imporperly [sic] zoned Destination Resort

sites may reduce the speculative value of the

property but will benefit the owners by

giving them realistic expectations.

[Emphasis added.]

21. Contrary to the vague statements of economic impact contained within

the economic impact statement, proposed Rule 28-20.023(5), Florida

Administrative Code, would reduce allocated and maximum net densities for hotel

units by 33-1/3 percent in all districts, including DRs. Proposed Rule 28-

20.023 (6)(A) and (B) would completely redefine the uses allowed in DR

districts. The current uses include hotels of less than 50 rooms as a minor

conditional use, and 50 rooms or more as a major conditional use. The minor

conditional use has been eliminated entirely in the proposed rule, and all DR

hotels under the proposed rule must have at least 150 rooms. The proposed rule

would also add the following additional requirements to the at least 150 room

hotel:

Rule 28-20.023(6)(B)(1)(a): an on-site or

adjacent restaurant that can seat 1/3 of all

hotel guests, at maximum capacity, at a

single seating;

Rule 28-20.023(6)(B)(1)(b): at least 2

satellite eating and drinking facilities,

each with at least 25 seats;

Rule 28-20.023(6)(B)(1)(c): a separate

banquet hall capable of seating 1/3 of all

hotel guests, at maximum capacity, and

functioning as a meeting/conference and

entertainment area;

Rule 28-20.023(6)(B)(1)(d): a lobby with

24-hour telephone and reservation service;

Rule 28-20.023(6)(B)(1)(e): at least 6

tennis or racquetball courts (1 per 25

rooms), or a 500 sq. ft. spa/exercise room,

and 2 "active" recreation facilities (list

provided) and 1 "passive" recreational

facility (nature trail, game room, or garden

area);

Rule 28-20.023(6)(B)(1)(f): water-oriented

recreation facilities, including at least a

1,050 sq. ft. pool (7 sq. ft./room) or 150

linear feet of beach (1'/room);

Rule 28-20.023(6)(B)(1)(h): a shuttle

transport service to major tourist

attractions accommodating 10 percent of the

local trip requirements of employees and

guests;

Rule 28-20.023(6)(B)(1)(i): on-site employee

housing area equal to 10 percent of the floor

area in guest rooms;

Rule 28-20.023(6)(B)(1)(j): at least 200

sq. ft. of convenience retail, food sales,

and gifts, plus 1.3 sq. ft. of commercial

retail space per room for each room over 150,

and other retail or services provided that

there is no signage advertising on-site

retail or services to the public.

These proposals go beyond "reducing uncertainty" as the Department maintains in

its 3-page statement.

22. As to the data and methods utilized by the Department of Community

Affairs in assessing the economic impact on persons affected by the proposed

rules, the economic impact statement only states as follows:

Agency experience with implementing Chapter

380, Florida Statutes, indicates that the

economic impact of most of the provisions of

the proposed rule will not be significant,

since the development regulations are adopted

and enforced by the local government. The

other costs and benefit are based on

estimates provided by Monroe County.

[Emphasis added.]

The statement that the regulations are adopted by the local government is not

accurate. These proposed rules are not being adopted by Monroe County; rather,

they are proposed rules to be adopted by the Administration Commission upon the

recommendation of the Department of Community Affairs

23. The text of the proposed rules filed by the Administration Commission

and challenged herein is 28 pages long. On page 13, proposed Rule 28-20.023(7)

reads as follows: "The Land Use District Maps are hereby altered as indicated

on the maps incorporated by reference and attached to this rule as DR-1 through

DR-13." Attached to the rule are 22 aerial photos and Land Use District Maps.

None of them are numbered, and there are, therefore, no Land Use District Maps

DR-1 through DR-13. That reference on page 13 of the proposed rule and the

unmarked Land Use District Maps attached to the 24-page text are the only notice

to Petitioners Allen and Wigwam that the designation DR currently applicable to

their properties is being amended to SR.

24. Although the Department of Community Affairs knew that it was

proposing to the Administration Commission that the land use designation on the

Allen and Wigwam properties be changed, (especially as to the Wigwam property

since the Department of Community Affairs had appealed to the Florida Land and

Water Adjudicatory Commission the development order that Wigwam obtained from

Monroe County), the Department of Community Affairs did not advise either Allen

or Wigwam that the designation of their properties was being changed. Further,

the Department of Community Affairs did not contact either Allen or Wigwam to

determine the economic impact on those persons affected by the proposed rules,

nor did it contact any other persons affected by the many changes made by the

proposed rules or undertake any independent study.

25. Monroe County Commissioner Lytton, then also Mayor of Monroe County,

attended each of the three workshops conducted on November 14-16, 1988, as part

of the presentation panel. Two other county commissioners each attended one of

the three workshops. Additionally, the County Administrator and the County

Planning Director appeared before the Administration Commission on behalf of

Monroe County to urge adoption of the proposed rules.

26. The Estimate of Revised Economic Impacts on All Affected Persons was

filed with the Joint Administrative Procedures Committee by the time of the

final hearing in this cause.

27. Petitioners timely filed this Petition for administrative

determination of the validity of the proposed rules on November 23, 1988.

CONCLUSIONS OF LAW

28. The Division of Administrative Hearings has jurisdiction over the

subject matter hereof, and the parties hereto. Section 120.54(4), Florida

Statutes.

29. As stipulated by the parties and as proven by the Petitioners,

Petitioners Allen and Wigwam as owners of property currently designated as DR

are substantially affected by the proposed rules. They, accordingly, have

standing to participate in this rule-challenge proceeding. On the other hand,

Monroe County ex rel. Wigwam is not an appropriate party to this proceeding.

Wigwam alleges that it holds a valid unexpired development order from Monroe

County. Since the Department of Community Affairs appealed that development

order to the Florida Land and Water Adjudicatory Commission, that development

order is not yet final. See, for example, Department of Community Affairs v.

James D. Young, Sr., DOAH Case No. 88-3451 (Final Order entered Feb. 28, 1989).

Wigwam has failed to establish any factual or legal basis for its allegation

that Monroe County ex rel. Wigwam, Inc., is a proper party in this proceeding.

30. Section 120.54(1), Florida Statutes, provides as follows:

Prior to the adoption, amendment, or repeal

of any rule..., an agency shall give notice

of its intended action, setting forth a short

and plain explanation of the purpose and

effect of the proposed rule, the specific

legal authority under which its adoption is

authorized, and a summary of the estimate of

the economic impact of the proposed rule on

all persons affected by it.

31. Subsection (a) further provides that: "Such publication, mailing, and

posting of notice shall occur at least 21 days prior to the intended action."

Subsection (b) further provides, inter alia, that: "The proposed rule shall be

available for inspection and copying by the public at the time of the

publication of notice."

32. The notice published in the Florida Administrative Weekly fails to

comply with the provisions of Section 120.54(1) in several respects. First,

although the notice does contain the text for Rule 28-20.019, as to Rules 28-

20.022 and 28-20.023 the notice only states that amendments are being made to

the Monroe County Comprehensive Plan and Land Development Regulations. Such

brevity is insufficient to provide notice of the agency's intended action.

Second, although the summary of the economic impact of the proposed rules on

persons affected by them states that there will be an economic impact, the

summary does not hint as to what the economic impact will be. Third, the

economic impact statement portion of the proposed rules was not available at the

time of the publication of notice; rather, it was available to those persons

attending the workshops which commenced ten days later and was filed with the

Joint Administrative Procedures Committee just prior to the final hearing in

this cause.

33. Section 120.54(2)(b), Florida Statutes, provides, in part, as follows:

Each agency shall provide information on its

proposed action by preparing a detailed

economic impact statement. The economic

impact statement shall include:

* * *

2. An estimate of the cost or the

economic benefit to all persons directly

affected by the proposed action;

* * *

4. A detailed statement of the data and

method used in making each of the above

estimates;

34. The Estimate of Revised Economic Impacts on All Affected Persons does

not constitute an economic impact statement, let alone a detailed economic

impact statement. The 3-page economic impact statement suggests that there will

be some economic impact but fails to give any information as to what that

economic impact is. It does not describe the economic impact on the 13 property

owners whose properties are being re-designated from DR zoning to a use of

lesser intensity or the cost of the additional requirements for properties

retaining their DR designation. Since the statement contains no estimate of the

economic impacts on the persons directly affected, it, a fortiori, also fails to

give a detailed statement of the data and methods used in making those

estimates. The economic impact statement is so vague that it does not

constitute an economic impact statement, and no statement of economic impact of

the proposed rules has yet been issued.

35. Section 120.54(2)(d) provides that: "The failure to provide an

adequate statement of economic impact is a ground for holding the rule

invalid...." The economic impact statement accompanying the proposed rules

under consideration herein is woefully inadequate. Although the appellate

courts have held that an inadequate economic impact statement may be subject to

the harmless error rule if it is established that the proposed action will have

no economic impact or that the agency fully considered the asserted economic

factors and impacts, in this instance it is clear that the proposed rules do

have an economic impact (as admitted by the Department) and there is an absence

of any evidence to show that the Department of Community Affairs or the

Administration Commission have "fully considered the asserted economic factors

and impacts." Department of Health and Rehabilitative Services v. Wright, 439

So.2d 937 (Fla. 1st Dist. 1983); Department of Labor and Employment Security v.

McKee, 413 So.2d 805 (Fla. 1st Dist. 1982). Accordingly, proposed Rules 28-

20.019, 28-20.022 and 28-20.023 are invalid exercises of delegated legislative

authority.

36. Petitioners argue that the key, and dispositive, issue in this cause

is whether the Administration Commission can re-zone or "down-zone" property in

the State of Florida. They argue that the law has been long- and well-settled

that zoning is a legislative function which has been delegated by the

Legislature to local government. They argue, therefore, that the Administration

Commission's attempt to re-zone their properties is a violation of the

separation of power doctrine, is unconstitutional, and is violative of their

procedural and substantive due process rights. They argue that the Commission's

attempt to amend Monroe County's Comprehensive Plan and Land Development

Regulations is in fact an attempt to exercise the zoning authority held by

Monroe County, no matter what name is placed on the process They rely, in

support of their arguments, on traditional zoning law, and on the testimony of

the Department's Area of Critical State Concern Administrator who referred to

the Monroe County Land Use District Naps as "zoning maps." Interestingly, even

the economic impact statement accompanying these proposed rules is written in

terms of changes in zoning rather than in changes of land use designations.

(Petitioners do not challenge the wisdom of the specific designation to which

their properties are being "downzoned" but whether "downzoning" can be done at

all by the Administration Commission.)

37. Petitioners arguments are, however, unpersuasive. The strength of

traditional zoning law has been diluted in Monroe County due to two major

events. The first event was the passage of Chapter 380, Florida Statutes, which

in essence gave to the Governor and Cabinet sitting as the Administration

Commission and to the Department of Community Affairs acting as the State Land

Planning Agency both the authority and the responsibility to oversee land

development in Monroe County. The Legislature has designated Monroe County an

Area of Critical State Concern and has given to the Department of Community

Affairs the right to appeal development orders issued by Monroe County to the

Florida Land and Water Adjudicatory Commission. That Commission, composed of

the Governor and Cabinet, can even reverse Monroe County's decisions to allow

development.

38. The second event is that Monroe County has adopted its Comprehensive

Plan and Land Development Regulations. Before that Comprehensive Plan and Land

Development Regulations could go into effect, the approval of the Department of

Community Affairs and the Administration Commission was required. Chapter 163,

Florida Statutes. The Monroe County Land Development Regulations are contained

in Volume III of the Florida Keys' Comprehensive Plan. Incorporated in that

Volume are detailed descriptions of the Land Use Designations permitted in

Monroe County. Also incorporated in that Volume are Land Use District Maps.

39. Section 380.031(8) defines land development regulations to include

"local zoning, subdivision, building, and other regulations controlling the

development of land." Similarly, Section 163.3164(22), Florida Statutes,

defines land development regulations to include any local government zoning, re-

zoning, or any other regulations concerning the development of land. A second

definition found in Chapter 163, which applies only to substantially affected

persons seeking to challenge a land development regulation on the basis that it

is inconsistent with the local comprehensive plan and which therefore does not

apply to this proceeding, excludes zoning maps and actions which result in

zoning or re-zoning from the definition of land development regulations.

Section 163.3213(2)(b), Florida Statutes. Finally, current Rule 28-20.019(3),

Florida Administrative Code, provides that land development regulations include

official land use district maps. In short, Monroe County's Land Use District

Maps are now part of Monroe County's Land Development Regulations.

40. Section 380.0552, Florida Statutes, establishes the Florida Keys as an

Area of Critical State Concern and provides in Subsection (9), in part, as

follows:

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.

41. In this cause, the Department of Community Affairs as the state land

planning agency has recommended to the Administration Commission the amendment

of Monroe County's Land Development Regulations and Local Comprehensive Plan.

The Administration Commission has accepted that recommendation and proposes to

adopt those changes by rule as statutorily-required.

42. Petitioners allege that the Department did not consult with local

government prior to proposing to the Administration Commission the rules

challenged herein. It is true that the Department did not obtain the formal

approval of the Board of County Commissioners of Monroe County prior to

recommending to the Administration Commission the adoption of the proposed

rules. However, Section 380.0552(9) does not require the approval of local

government. It merely requires that the Department "consult" with local

government. Under the terms of the statute, local government could be strongly

opposed to the Department's proposed changes to its Comprehensive Plan and Land

Development Regulations; yet, the Department would be authorized to ignore local

government's disapproval.

43. In this case, the Planning Director of Monroe County and several other

Monroe County employees participated in the drafting of the proposed rules, and

a copy of the proposed rules was subsequently sent to the Planning Director with

a request for comments. The Board of County Commissioners subsequently enacted

a Resolution directing one of its members to attend the workshops and public

hearing on the proposed rules specifically stating that the County Commission

was thereby fulfilling the "consultation" requirement. The Mayor of Monroe

County attended the three workshops and the public hearing and participated in

the presentation at the beginning of those workshops and public hearing. The

County Administrator and the County Planning Director appeared before the

Administration Commission urging the adoption of the proposed rules.

Accordingly, the requirement for "consultation" contained in Section

380.0552(9), Florida Statutes, has been fully met.

44. Petitioners further argue that the proposed re-designation of 13 DR

areas (including the parcels owned by Petitioners) is not a land development

regulation. They argue that Section 380.0552(9) requires that since the

adoption of amended land development regulations by the Administration

Commission must be accomplished by rule and since a rule is a statement of

general applicability [Section 120.52(16), Florida Statutes], the re-designation

of 13 parcels cannot be a land development regulation. Petitioners are in

error. Prior to the Department recommending to the Administration Commission

the proposed rules under consideration herein, Department staff and County staff

reviewed all areas of Monroe County designated DR. They established criteria

for the determination of which of the parcels currently designated DR should be

re-designated and then applied those criteria to each individual parcel in the

entire class. The entire class having been considered, and the criteria having

been applied to the entire class which consisted of all DR properties in Monroe

County, the proposed rules are statements of general applicability as to what

constitutes that class, even though 13 parcels have been excluded from that

class by their failure to meet the criteria applicable to that class. The

Legislature has clearly directed that the Administration Commission amend the

Monroe County Comprehensive Plan and Land Development Regulations by rule. Even

if there were a conflict between the content of a rule adopted by the

Administration Commission pursuant to Section 380.0552(9) and the definition of

a rule contained in Section 120.52(16), it is axiomatic that the specific

provision controls over the general provision and that the later provision

[Section 380.0552(9))] prevails.

45. Petitioners further claim that Section 380.0552(9), Florida Statutes,

cannot support the proposed rules since it is unconstitutional in that it

unconstitutionally delegates a legislative function to an administrative agency.

However, the Legislature may delegate its authority to administrative agencies,

so long as the Legislature establishes adequate standards and guidelines for the

exercise of that authority. Microtel, Inc. v. Florida Public Service

Commission, 464 So.2d 1189 (Fla. 1985). The land use planning, "zoning", and

other land development authority that the Legislature has chosen to delegate to

the Commission and the Department has now been circumscribed by clear

legislative guidelines and standards. Further, any enactment, amendment or

rescission of a Monroe County comprehensive plan element or land development

regulation must be in compliance with the principles for guiding development.

Section 380.0552(9), Florida Statutes. The principles for guiding development

which apply to Monroe County have been enacted by the Legislature. Section

380.0552(7), Florida Statutes.

46. Petitioner Wigwam further asserts that according to its specific

facts, equitable estoppel bars the re-designation of its property from DR to SR,

and bars the proposed rules from effecting a reduction in hotel land densities

as to Wigwam. (Petitioner Allen did not make an equitable estoppel claim nor

did he present evidence demonstrating detrimental reliance.) Claims of

equitable estoppel are inappropriate in a Section 120.54(4) rule challenge. In

such a proceeding, a substantially affected person may seek an administrative

determination of the invalidity of a proposed rule on the ground that the

proposed rule is an invalid exercise of delegated legislative authority. A

Section 120.54(4) proceeding does not involve the determination of the

applicability of a rule to a particular person. It simply involves the

determination of whether there is statutory authority for the rule itself.

There are other forums and other proceedings in which Wigwam can present its

claim of equitable estoppel if it chooses to do so.

47. Lastly, Petitioners allege that in order to promulgate the proposed

rules, the Department and Commission must follow the mandatory procedures of the

Monroe County Comprehensive Plan and Land Development Regulations. However, the

Department and the Commission are not amending the Monroe County Comprehensive

Plan and Land Development Regulations pursuant to that Plan. Rather, the

Department and Commission seek to amend the Comprehensive Plan and Land

Development Regulations pursuant to Section 380.0552(9) which sets forth the

procedure to be followed. Since the Commission is required by that statute to

accomplish such amendments by rule, the notice provisions contained within

Section 120.54, Florida Statutes, control. It has previously been determined in

this Final Order that the Administration Commission and the Department of

Community Affairs have not followed the appropriate notice provisions as set

forth in Section 120.54, Florida Statutes, by failing to provide an explanation

of the purpose and effect of the proposed rules and by failing to prepare a

detailed economic impact statement.

Based on the foregoing Findings of Fact and Conclusions of Law, Petitioners

have failed in their burden of proving that proposed Rules 28-20.019, 28-20.022,

and 28-20.023 are invalid exercises of delegated legislative authority as to

each of the substantive grounds raised by Petitioners in this cause. However,

Petitioners have met their burden of proving that proposed Rules 28-20.019, 28-

20.022, and 28-20.023, are invalid exercises of delegated legislative authority

due to the failure of the Department of Community Affairs and the Administration

Commission to comply with the economic impact and notice requirements of Section

120.54, Florida Statutes. Accordingly, Petitioners' challenge to the proposed

rules is hereby sustained.

DONE and ENTERED this 20th day of March, 1989, in Tallahassee, Leon County,

Florida.

_________________________________

LINDA M. RIGOT

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 20th day of March, 1989.

APPENDIX TO FINAL ORDER

DOAH CASE NO. 88-5797RP

1. Petitioners' proposed findings of fact numbered 1-7, 9, 10, and 13 have

been adopted either verbatim or in substance in this Final Order.

2. Petitioners' proposed findings of fact numbered 8, 11, and 12, have

been rejected as being unnecessary for determination of the issues herein.

3. Respondents and Intervenor's proposed findings of fact numbered 1-10,

and 12-14 have been adopted either verbatim or in substance in this Final Order.

4. Respondents and Intervenor's proposed finding of fact numbered 11 has

been rejected as being irrelevant to the issues under consideration herein.

5. Respondents and Intervenor's proposed finding of fact numbered 15 has

been rejected as not being supported by the record in this cause.

COPIES FURNISHED:

James S. Mattson, Esquire

Mattson & Tobin

Post Office Box 586

Key Largo, Florida 33037

William J. Roberts, Esquire

Roberts and Egan

217 South Adams Street

Tallahassee, Florida 32302

John W. Cotigan, Esquire

P. Tim Howard, Esquire

Department of Legal Affairs

The Capitol, Suite 1502

Tallahassee, Florida 32399-1050

David L. Jordan, Esquire

L. Katherine Funchess, Esquire

Department of Community Affairs

2740 Centerview Drive

Tallahassee, Florida 32399-2100

Liz Cloud, Chief

Bureau of Administrative Code

1802 The Capitol

Tallahassee, Florida 32399-0250

Carroll Webb, Executive Director

Administrative Procedures Committee

120 Holland Building

Tallahassee, Florida 32399-1300

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.