89-003566RP
Department Of Community Affairs vs.
Withlachoochee Regional Planning Council
Status: Closed
DOAH Final Order on Monday, October 30, 1989.
DOAH Final Order on Monday, October 30, 1989.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8DEPARTMENT OF COMMUNITY AFFAIRS, )
13)
14Petitioner, )
16)
17vs. ) CASE No. 89-3566RP
22)
23WITHLACOOCHEE REGIONAL PLANNING )
27COUNCIL, )
29)
30Respondent. )
32___________________________________)
33FINAL ORDER
35Pursuant to notice, the Division of Administrative Hearings, by its duly
46designated Hearing Officer, William J. Kendrick, held a formal hearing in the
58above-styled case on August 4, 1989, in Tallahassee, Florida.
67APPEARANCES
68For Petitioner: Richard Grosso, Esquire
73Department of Community Affairs
772740 Centerview Drive
80Tallahassee, Florida 32399-2100
83For Respondent: Phil Trovillo, Esquire
88Suite 8
901107 East Silver Springs Boulevard
95Ocala, Florida 32670
98STATEMENT OF THE ISSUES
102The issues for determination are whether petitioner, Department of
111Community Affairs, has standing to maintain this action, and whether the
122respondent's, Withlacoochee Regional Planning Council's, proposed amendments to
130Rule 29E-11.001, Florida Administrative Code, constitute an invalid exercise of
140delegated legislative authority.
143PRELIMINARY STATEMENT
145This is a rule challenge brought under the provisions of Sections 120.54(4)
157and 186.508(3), Florida Statutes, to challenge the validity of respondent's
167proposed amendment of its regional policy plan. The gravamen of petitioner's
178challenge is its contention that the proposed amendments are inconsistent with
189the state comprehensive plan, and that the amendments fail to establish adequate
201standards for the Commission's decisions or vest unbridled discretion in the
212Commission
213At hearing, the petitioner called as witnesses: Charles Harwood; Bob Nave;
224Tom Beck; Greg Daugherty; and Perry Oldenburg, accepted as an expert in wetland
237ecology. Petitioner's exhibits 1-6 were received into evidence. Respondent
246called Nick Bryant, Ralph Shepard, and Charles Harwood as witnesses.
256Respondent's exhibits 1-9 were received into evidence.
263The parties declined to file a transcript of the hearing, and were granted
276leave until August 28, 1989, to file proposed findings of fact. Accordingly,
288the parties waived the requirement that a final order be rendered within thirty
301days of the date of hearing. Rule 221-6.031(2), Florida Administrative Code.
312The parties' proposed findings are addressed in the appendix to this final
324order.
325FINDINGS OF FACT
328The parties
3301. Petitioner, Department of Community Affairs (Department), is the state
340land planning agency under the provisions of Chapter 163, Part II, Florida
352Statutes, [the "Local Government Comprehensive Planning and Land Development
361Regulation Act" (LGCPA)]. As the state land planning agency for the LGCPA, the
374Department is charged by law with the duty to provide technical assistance to
387local governments in preparing comprehensive plans and with the duty to
398ascertain whether local comprehensive plans are in compliance with the
408provisions of Chapter 163, Part II, Florida Statutes. Inherent in the
419Department's determination of compliance is a finding that the local government
430comprehensive plan elements are consistent with the state comprehensive plan and
441the appropriate regional policy plan. Where, as here, a comprehensive regional
452policy plan is inconsistent with the state comprehensive plan, the performance
463of the Department's mandated duty is stymied absent the ability to challenge the
476offensive parts of the regional policy plan, and thereby bring the planning
488process into harmony. Accordingly, as the state land planning agency charged
499with the responsibility of implementing the LGCPA, the Department has a real and
512immediate interest in assuring consistency between the state comprehensive plan
522and the various regional policy plans.
5282. Respondent, Withlacoochee Regional Planning Council (Council), is a
537regional planning council established pursuant to Section 186.504, Florida
546Statutes, and consists of the Counties of Citrus, Hernando, Levy, Marion, and
558Sumter. Rule 29E-1.001, Florida Administrative Code. As a regional planning
568council, the Council is charged by law with the duty to develop a comprehensive
582regional policy plan that is consistent with, and which furthers, the goals and
595policies of the state comprehensive plan. Section 186.507(1), Florida Statutes.
605The existent comprehensive regional policy plan and the proposed amendments
6153. The Council has, consistent with the requirement of Section 186.507(1),
626Florida Statutes, adopted its comprehensive regional policy plan by rule. That
637rule, codified as Rule 29E- 11.001, Florida Administrative Code, adopts and
648incorporates by reference the Council's comprehensive regional policy plan, with
658an effective date of April 13, 1989.
6654. On June 9, 1989, the Council duly noticed its intent to amend Rule 29E-
68011.001, Florida Administrative Code, and published notice thereof in volume 15,
691number 23, of the Florida Administrative Weekly. Pertinent to this case, the
703proposed amendments would alter the policies of the Council's comprehensive plan
714as they relate to resource extraction (mining) in environmentally sensitive
724areas.
7255. On June 30, 1989, the Department filed a timely petition with the
738Division of Administrative Hearings, pursuant to Section 120.54(4), Florida
747Statutes, contending that the proposed amendments to Rule 29E-11.001, Florida
757Administrative Code, were an invalid exercise of delegated legislative
766authority. The gravamen of the Department's challenge to the validity of the
778proposed rule amendments is its contention that the amendments are not
789consistent with the state comprehensive plan policies as they relate to mining
801in environmentally sensitive areas, and that the amendments fail to establish
812adequate standards for the Commission's decisions or vest unbridled discretion
822in the Commission.
8256. The policies of the state comprehensive plan pertinent to this case, as
838set forth in Section 187.201, Florida Statutes, are as follows:
848(10) NATURAL SYSTEMS AND RECREATIONAL
853LANDS
854* * *
857(b) Policies -
8601. Conserve forests, wetlands, fish,
865marine life, and wildlife to maintain their
872environmental, economic, aesthetic, and
876recreational values.
878* * *
8813. Prohibit the destruction of
886endangered species and protect their
891habitats.
892* * *
8957. Protect and restore the ecological
901functions of wetlands systems to ensure their
908long-term environmental, economic, and
912recreational value.
914* * *
917(14) Mining -
920* * *
923(b) Policies -
9265. Prohibit resource extraction which
931will result in an adverse effect on
938environmentally sensitive areas of the state
944which cannot be restored.
948(Emphasis added)
9507. The Council's proposed amendments to Rule 29E-11.001, Florida
959Administrative Code (the comprehensive regional policy plan), are hereinafter
968set forth, with the proposed amendments in clear text and the existing language
981of the rule that is to be amended lined through. In such format, the proposed
996amendments to the existing rule that are under challenge in this proceeding
1008provide as follows:
101114.3.1.1. Regional Policy:
1014Resource extraction which will result in an
1021adverse effect on environmentally sensitive
1026areas that cannot be reclaimed or restored to
1034beneficial use shall be prohibited. Examples
1040of such environmentally sensitive areas are:
1046wetlands, rivers, streams, lakes, springs,
1051coastal floodplains, endangered species
1055habitat, prime agricultural lands, prime
1060groundwater recharge areas, and historically
1065significant sites. (Emphasis added)
1069Wetlands, rivers, streams, lakes, springs,
1074coastal, floodplains, endangered species'
1078habitat, prime agricultural lands, prime
1083groundwater recharge areas, and historically
1088significant sites shall be identified and
1094protected by a prohibition on mining
1100activities within those areas and the
1106establishment of buffer zones around them.
1112Additionally, the Council proposes to amend its implementation strategy as to
1123Regional Policies 14.3.1.1, 14.3.1.2, and 14.3.1.3, as follows:
1131GROWTH MANAGEMENT
1133(1) Local governments with assistance from
1139other agencies should inventory their
1144wetlands, rivers, streams, lakes, springs,
1149coastal floodplains, endangered species'
1153habitat, prime agricultural lands, prime
1158groundwater recharge areas, historically
1162significant sites, and important mineral
1167reserves.
1168(2) Local governments should adopt
1173comprehensive plan amendments and ordinances
1178that 1) prohibit mining activities in
1184environmentally sensitive areas if they
1189cannot be reclaimed or restored to beneficial
1196use; define buffer zones around the areas and
1204resources identified above and restrict
1209mining activities to land outside those
1215buffers, 2) require identification and
1220protection of archaeological properties on
1225sites proposed for mining; 3) restrict the
1232use of land that contains economically
1238recoverable mineral deposits and lies outside
1244environmentally sensitive areas to activities
1249that will not preclude later extraction of
1256those minerals. (Emphases added)
1260INTERGOVERNMENTAL COORDINATION
1262(1) DNR, GFC, FWS, SCS, DER and WMDs, within
1271their respective areas of expertise, should
1277help local governments to identify and map
1284the above areas and resources and to define
1292appropriate buffer widths.
12958. Contrary to the provisions of the state comprehensive plan which
1306prohibit resource extraction that will adversely effect environmentally
1314sensitive areas unless they can be "restored," the proposed amendments would
1325only prohibit such activities if the environmentally sensitive areas could not
1336be "reclaimed or restored to beneficial use." The terms "restored" and
"1347reclaimed," although not defined by the proposed amendments, have commonly
1357accepted meanings. To restore a site means to put back the same thing that had
1372previously existed, i.e.: restore the type, nature, and function of the
1383ecosystem to the condition in existence prior to mining. To reclaim a site is
1397to alter its character such that beneficial use can be made of it, even though
1412the character or function of the site may be entirely different from that which
1426previously existed. To "restore to beneficial use" is a phrase consistent with
1438the definition of "reclamation," and not consistent with the definition of
"1449restoration" as that term is commonly defined. Accordingly, it is found that
1461the proposed amendments to Rule 29E-11.011, Florida Administrative Code, are
1471patently inconsistent with the policies of the state comprehensive plan that
1482relate to the protection of environmentally sensitive areas and, more
1492particularly, the policy of the state comprehensive plan that prohibits resource
1503extraction in such areas unless they can be restored.
15129. Notwithstanding the patent inconsistency between the proposed
1520amendments and the state comprehensive plan, the Council argued that it
"1531intends" to interpret the proposed amendment consistent with the state plan.
1542To this end, the Council offered the testimony of its chairman, Nick Bryant, who
1556testified that he would interpret the proposed amendment to require that the
1568post-mining beneficial use be the same beneficial use that existed prior to
1580mining. The Council's vice chairman, Ralph Shepard, testified, however, that he
1591would not interpret the proposed amendment to require that the property be
1603returned to the same character it enjoyed prior to mining, but only that it be
1618reclaimed to the extent necessary to provide a beneficial use. Under such
1630interpretation, the proposed amendment would allow, for example, the total
1640destruction of a wetland by mining even if the net result would be a borrow pit
1656in which people could swim and water ski.
166410. The Council's contention that it would interpret the proposed
1674amendment consistent with the state plan is not only irrelevant in view of the
1688patent inconsistency which exists between the proposed amendments and the state
1699plan, but is also not credible. Rather, the clear impact of the rule and the
1714Council's "intent" may be readily gleamed from its notice of proposed
1725rulemaking, federal comparison statement, and economic impact statement. As
1734stated in the Council's notice of proposed rule making:
1743PURPOSE AND EFFECT: The rule is being amended
1751for the purpose of replacing the
1757Comprehensive Regional Policy Plan (CRPP)
1762previously adopted by reference, with a new
1769version in which a policy in the mining
1777chapter and its associated implementation
1782strategies have been changed. The effect of
1789the amendment will be to remove a prohibition
1797on mining in areas that are environmentally
1804sensitive or historically significant.
1808* * *
1811SUMMARY OF THE ESTIMATE OF ECONOMIC IMPACT:
1818Opportunities for economic benefit from
1823resource extraction will be afforded land
1829owners and the mining industry in
1835environmentally sensitive areas... Costs
1839will be borne by the general public as a
1848result of lost environmental functions and
1854values.... (Emphasis added)
1857As stated in the Council's federal comparison statement:
1865The revised policy is less restrictive
1871than the current federal wetlands policy of
1878avoiding impacts where there are
1883alternatives, and requiring that unavoidable
1888impacts be fully offset in order to achieve a
1897goal of no net loss as defined by acreage and
1907function.
1908And, as stated in the council's economic impact statement:
1917A potential for economic benefit from
1923resource extract ions will be created in
1930environmentally sensitive areas where the
1935CRPP restricts other development activities.
1940Costs will occur in the form of lower water
1949quality and the loss of wildlife habitat and
1957other functions presently provided by the
1963sites where mining will be allowed.
1969* * *
1972Expectation of benefits and costs to
1978affected parties is based on the assumption
1985that at least some local governments in the
1993region will choose not to be more stringent
2001than the CRPP, and will therefore permit
2008mining where consistency with the Regional
2014Plan would previously have required its
2020prohibition.
202111. While not conceding that any inconsistency exists between the proposed
2032amendments and the state comprehensive plan, the Council suggests that, if any
2044inconsistency exists, other existing policies within its plan obviate any
2054inconsistency. In support of its argument, the Council points primarily to
2065policies 14.1.1.1, 14.1.1.3, and 14.3.1.6. An examination of such policies, as
2076well as the Council's entire comprehensive plan, demonstrates, however, that no
2087other policy or policies cure the inconsistency that exists between the proposed
2099amendments and the state comprehensive plan.
2105CONCLUSIONS OF LAW
210812. The Division of Administrative Hearings has jurisdiction over the
2118parties to, and the subject matter of, these proceedings. Sections 120.54(4)
2129and 186.508(3), Florida Statutes.
213313. Pertinent to this proceeding, Section 120.54(4)(a), Florida Statutes,
2142provides:
2143Any substantially affected person may
2148seek an administrative determination of the
2154invalidity of any proposed rule on the ground
2162that the proposed rule is an invalid exercise
2170of delegated legislative authority.
2174The Department, a state department created pursuant to Section 120.18, Florida
2185Statutes, is a person as defined by Section 120.52(13), Florida Statutes.
2196Accordingly, the Department has standing to maintain this action provided it can
2208demonstrate that it is substantially affected by the proposed rule
221814. To demonstrate that it is substantially affected by the proposed rule,
2230the Department must establish that, as a consequence of the proposed rule, it
2243will suffer injury in fact, and that the injury is one that is subject to
2258protection in the proceeding by virtue of a rule, statute or constitutional
2270provision. Florida Medical Association, Inc. v. Department of Professional
2279Regulation, 426 So.2d 1112 (Fla. 1st DCA 1983). Further, the injury must not be
2293speculative, nonspecific and hypothetical, and lacking in immediacy and reality.
2303Florida Department of Offender Rehabilitation v. Jerry, 353 So.2d 1230 (Fla. 1st
2315DCA 1978). Here, for the reasons set forth in the findings of fact, the
2329Department, as the state land planning agency under the provisions of Chapter
2341163, Part II, Florida Statutes, has, as a matter of law, demonstrated standing
2354to challenge a regional comprehensive policy plan that is inconsistent with the
2366state comprehensive plan.
236915. To prevail in this case, the burden is upon the Department to
2382demonstrate that the proposed rules are an invalid exercise of delegated
2393legislative authority. An invalid exercise of delegated legislative authority
2402is defined by Section 120.52(8), Florida Statutes, as follows:
"2411Invalid exercise of delegated
2415legislative authority" means action which
2420goes beyond the powers, functions, and duties
2427delegated by the Legislature. A proposed or
2434existing rule is an invalid exercise of
2441delegated legislative authority if any one or
2448more of the following apply:
2453* * *
2456(b) The agency has exceeded its grant of
2464rulemaking authority, citation to which is
2470required by s. 120.54(7);
2474(c) The rule enlarges, modifies, or
2480contravenes, the specific provisions of law
2486implemented, citation to which is required by
2493s. 120.54(7);
2495(d) The rule is vague, fails to
2502establish adequate standards for agency
2507decisions, or vests unbridled discretion in
2513the agency....
251516. Pertinent to this case, Section 186.507(1), Florida Statutes,
2524provides:
2525A comprehensive regional policy
2529plan. shall be consistent with and shall
2536further, the state comprehensive plan; and
2542shall implement and accurately reflect the
2548goals and policies of the state comprehensive
2555plan....
255617. As heretofore noted in the findings of fact, the state comprehensive
2568plan policy on mining "prohibit[s] resource extraction which will result in an
2580adverse effect on environmentally sensitive areas of the state which cannot be
2592restored." Section 187.201(14), Florida Statutes. The Council's proposed rules
2601do not, however, prohibit mining in environmentally sensitive areas that cannot
2612be "restored" but, rather, only prohibit such activities if the area cannot be
"2625reclaimed or restored to a beneficial use." Since "reclaimed or restored to a
2638beneficial use" are not words that are synonymous with "restored," but in fact
2651impose a significantly lower standard for mining activities in environmentally
2661sensitive areas, the proposed rules are not consistent with, and do not
2673implement and accurately reflect the policies of the state comprehensive plan
2684that relate to the protection of environmentally sensitive areas and, more
2695particularly, the policy of the state comprehensive plan that prohibits resource
2706extraction in such areas unless they can be restored.
271518. Under the circumstances, it is concluded that the proposed rules are
2727an invalid exercise of delegated legislative authority. Section 120.52(8)(b),
2736(c) and (d), Florida Statutes.
2741CONCLUSION
2742Based on the foregoing findings of fact and conclusions of law, it is
2755ORDERED that the proposed amendments to Rule 29E-11.001, Florida
2764Administrative Code, are invalid.
2768DONE AND ORDERED in Tallahassee, Leon County, Florida, this 30th day of
2780October 1989.
2782___________________________________
2783WILLIAM J. KENDRICK
2786Hearing Officer
2788Division of Administrative Hearings
2792The DeSoto Building
27951230 Apalachee Parkway
2798Tallahassee, Florida 32399-1550
2801(904) 488-9675
2803Filed with the Clerk of the
2809Division of Administrative Hearings
2813this 30th day of October 1989.
2819Appendix
2820The Department's proposed findings of fact are addressed as follows:
28301. Addressed in paragraph 1.
28352. Supported by competent proof, but not necessary to the result reached.
28473. Addressed in paragraph 2.
28524. Supported by competent proof, but not necessary to the result reached.
28645. Addressed in paragraph 3.
28696. Supported by competent proof, but not necessary to the result reached.
28817-9. Addressed in paragraph 1.
288610. Supported by competent proof, but not necessary to the result reached.
289811-12. Not shown to be relevant.
290413. Addressed in paragraph 5.
290914. Addressed in paragraph 6.
291415-16. Addressed in paragraph 7.
291917. Addressed in paragraph 8.
292418-21. Addressed in paragraph 10.
292922-26. Addressed in paragraph 8.
293427-28. Addressed in paragraphs 9 and 10.
294129. Addressed in paragraph 2.
294630-32. Addressed in paragraphs 8-10, otherwise rejected as not necessary to the
2958result reached.
296033-37. Addressed in paragraph 11.
296538. Addressed in paragraphs 8-10.
2970The Commission's proposed findings of fact are addressed as follows:
29801. Rejected as not a finding of fact. Addressed, however, in paragraphs 7-10.
29932. Addressed in paragraph 11.
29983. Rejected as not supported by competent proof. See paragraphs 9-10.
30094. Addressed in paragraph 8.
30145. Addressed in paragraphs 7-9.
30196. Addressed in paragraph 8.
30247. Addressed in paragraphs 8 and 11.
30318. Addressed in paragraph 1, and paragraphs 2-3 of the conclusions of law.
30449-10. Addressed in paragraphs 6 and 7 of the
3053conclusions of law.
3056COPIES FURNISHED:
3058Richard J. Grosso, Esquire
3062C. Laurence Keesey, Esquire
3066Department of Community Affairs
30702740 Centerview Drive
3073Tallahassee, Florida 32399-2100
3076Phil Trovillo, Esquire
3079Withlacoochee Regional Planning
3082Council
30831241 Southwest Tenth Street
3087Ocala, Florida 32674-2798
3090Thomas G. Pelham, Secretary
3094Department of Community Affairs
30982740 Centerview Drive
3101Tallahassee, Florida 32399-2100
3104Liz Cloud, Chief
3107Bureau of Administrative Code
3111Room 1802, The Capitol
3115Tallahassee, Florida 32399-0250
3118Carroll Webb, Executive Director
3122Administrative Procedures Committee
3125120 Holland Building
3128Tallahassee, Florida 32399-1300 Case No. 89-3566RP
3134NOTICE OF RIGHT TO JUDICIAL REVIEW
3140A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL
3154REVIEW PURSUANT TO SECTION 120.68. FLORIDA STATUTES. REVIEW PROCEEDINGS ARE
3164GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE
3175COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE
3191DIVISION OF ADMINISTRATIVE HEARINGS AND A SECOND COPY, ACCOMPANIED BY FILING
3202FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR
3215WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY
3228RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE
3243ORDER TO BE REVIEWED.
Case Information
- Judge:
- WILLIAM J. KENDRICK
- Date Filed:
- 06/30/1989
- Date Assignment:
- 07/07/1989
- Last Docket Entry:
- 10/30/1989
- Location:
- Tallahassee, Florida
- District:
- Northern
- Agency:
- Department of Community Affairs
- Suffix:
- RP