vs. ) CASE NO. 85-2814RX
Respondent. )
This matter came on for hearing in Tallahassee, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Robert T. Benton, II, on September 16, 1985. The parties are represented by counsel:
For Petitioner: Thomas G. Pelham, Esquire
William L. Hyde, Esquire
Whether Petitioner has standing to challenge DNR's side setback policy? If so, whether DNR's side setback policy amounts to an illicit rule? Whether the last sentence of Rule 16B-33.05(6), Florida Administrative Code, and the first sentence of Rule 16B-33.07(7), Florida Administrative Code, or either of them, constitutes an invalid exercise of delegated legislative authority?
These proceedings began with the filing of a petition for determination of the invalidity of existing rules on August 14, 1985. The petition challenged Rule 16B- 33.05(5)(b) and (6), Rule 16B-33.07(7), Florida Administrative Code, and "DNR's long-established policy, not adopted as a rule . . . providing that any construction seaward of an existing coastal construction control line ("CCCL") not occupy more than 50 percent to 60 percent of the shore parallel site coverage of the CCCL permit applicant's waterfront lot."
At final hearing petitioner narrowed its challenge to Rule 16B-33.05(6), Florida Administrative Code, to the final sentence thereof; and its challenge to Rule 16B- 33.07(7), Florida Administrative Code, to the initial sentence thereof. Respondent Department of Natural Resources (DNR) stipulated that Petitioner has standing to attack these provisions. Respondent eschewed any reliance on Rule 16B-33.05(5)(b), Florida Administrative Code, in Petitioner's pending permit application case, No. 85-2455, and Petitioner thereupon abandoned its challenge to Rule 16B-33.05(5)(b), Florida Administrative Code.
After DNR issued a cease and desist order to Petitioner, forbidding further construction on his Walton County lot seaward of the coastal construction control line, he applied for an after-the-fact permit authorizing work to go forward on a three-story ten-unit condominium, which would occupy some 95 percent of the width of his lot, and extend 34 feet seaward of the coastal construction control line. Petitioner's Exhibit No. 1. DNR staff stated the following, in recommending denial:
There presently exists over 160 feet of property located landward of the control line in which the proposed structure could be sited. The staff is concerned that the proposed encroachment is not justified, nor considered necessary for reasonable use of the property. In addition, staff is concerned about the potential cumulative effects of siting major structures seaward of
the control line along this section of the coast, which contains a number of undeveloped lots, as well as redevelopable lots. The cumulative impact of such construction will result in significant disturbance and damage to well-established, mature vegetation and eventual destabilization of the coastal barrier dune ridge. Also, the proposed encroachment and shore-parallel site coverage will have an adverse impact on the natural recovery processes of the beach/dune system following the impact of a major storm
event. The proposed building is not designed in accordance with the standards set forth in Subsections 16B-33.05(6) and 16B-33.07(1) and (2), Florida Administrative Code. File number WL-183 ATF has been assigned. . . .
RECOMMENDED DENIAL, ASSESMENT OF A CIVIL FINE OF FIVE THOUSAND DOLLARS ($5,000) AND REQUIRING REMOVAL OF THE EXISTING UNAUTHORIZED CONSTRUCTION SEAWARD OF THE COASTAL CONSTRUCTION CONTROL LINE.
Petitioner's Exhibit No. 1.
The "reference [to] the extensive site coverage was
not only the shore parallel site coverage, but also included the proposed encroachment seaward of the control line." (T. 18). DNR staff opposes construction on Mr.
Hill's lot of a habitable structure seaward of the control line. (T. 19, Petitioner's Exhibit No. 2, pp. 12 and 13).
Petitioner Hill timely instituted formal proceedings on his application, WL-183 ATF, and Case No. 85-2455 is still pending.
Shore Parallel Site Coverage
Since October of 1983, in processing coastal construction permit applications, DNR has taken into account "shore parallel site coverage," i.e., DNR staff have considered the relationship between lot width and the width of any structure proposed to be built fronting the water, seaward of a coastal construction control line.
A succession of waterfront buildings stretching the entire width of their respective lots walls off the
foreshore from more landward dunes. "[I]f you cover an extensive portion of the beach in the shore parallel direction, you tend to she[a]r off the upland area from the beach area and limit and inhibit the natural recovery processes of the dune system." (T. 15) With respect to Petitioner's proposed project and any other of this size and shape planned this far down on a similarly platted, developed and configured beach, DNR engineers put the maximum acceptable width of the structure at 50 to 60 percent of the lot's gulf frontage. Petitioner's Exhibit No. 2, p. 23; T. 20, 22, 32, 35.
DNR has no written policy limiting the width of structures built seaward of the coastal construction control line. Although DNR endeavors to treat similar sites similarly, sites vary significantly and different widths may be allowed on similar sites when structures with different depths are planned. Petitioner's Exhibit No. 3, pp. 9-13. In its post-hearing memorandum in support of Petitioner's rule challenge to DNR's non-rule policy regarding side setbacks, Petitioner quotes the following:
Q: Would you generally recommend this 50 to
60 percent shore-parallel site coverage for other types of similarily situated lots, either on the same beach or on other beaches in Florida?
A: The reference 50 to 60 percent is something we would feel comfortable with in certain areas of the beach that have similar characteristics and existing--similar situations regarding existing development, potential for redevelopment, stability of the dune area, and things of that nature. It certainly wouldn't apply--those figures wouldn't apply to all areas of the Florida coastline.
[Deposition of Brett Moore, September 10, 1985, pp. 16-17.]
Q: But for, say, a similarly situated beach, maybe you would try to get people to move toward that time of width without
specifically telling them that that's the width of coverage that you desire.
A: For the two areas I mentioned, I feel that something in the vicinity of 60 percent site coverage would be acceptable to the
staff, and that's what I would tell people if someone proposed a project in that area today.
[Deposition of Brett Moore, p. 27.]
A: Given that amount of encroachment on the dune, I feel that a reasonably acceptable shore-parallel coverage, given that shore- normal coverage, that would not have a significant adverse impact, would probably be between zero percent coverage and thirty percent coverage. In terms of what we would recommend, generally, in what kind of dune encroachment of a major structure, approximately a thirty-foot width, or about fifty percent coverage would probably be acceptable in terms of the impact to the dune and the recovery potential following a major storm event.
Q: Okay. Did you--so fifty percent would probably be okay by your lights; is that a fair characterization of that statement you just made?
A: Yeah, I could recommend a fifty percent coverage there, . . . In terms of what I would recommend for a site like that with that kind of encroachment with a major structure on the dune, I would recommend approximately fifty percent coverage.
Q: What about for a similar type of beach, not one down in Charlotte County or any place like that, but let's just say a similar type of beach somewhere in the panhandle, same relative dimensions, topography and the like?
A: So for the same---for the same site, I would recommend the same.
[Deposition of Ralph Clark, pp. 10-11.] At 2-3.
Neither this evidence nor any other adduced at hearing proved the existence of an agency statement of general, statewide application purporting in and of itself to have the direct and consistent effect of law. It is DNR's policy to treat similarly situated landowners similarly and to consider cumulative impact.
The parties proposed orders contain proposed findings of fact which are addressed by number in an appendix to this final order.
CONCLUSIONS OF LAW
On account of the pending permit application, Petitioner has standing to challenge the rule provisions on which DNR proposes to base denial of the application.
Staff also expressed concern about "shore-parallel site coverage." If Petitioner's contention that this refers to an illicit rule were correct, Petitioner would have standing to challenge the illicit rule, as well.
POLICY NOT A RULE
Mere "unwritten policy" cannot amount to an illicit rule. Department of Corrections v. McCain Sales of Florida, Inc., 400 So.2d 1301 (Fla. 1st DCA 1981) ("a program as such is not a statement of policy" at 1302). A rule is a statement "of general applicability . . . applied and . . . intended to be applied with the force of a rule of law." State, Department of Administration v. Stevens,
34 So.2d 290, 296 (Fla. 1st DCA 1977); McDonald v. Department of Banking and Finance, 346 So.2d 569, 580-581 (Fla. 1st DCA 1977). The Administrative Procedure Act defines the term "rule" as
each agency statement of general applicability that implements, interprets, or prescribes law or policy. . . . The term includes amendment . . . of a rule. The term does not include . . .
(b) . . . agency legal opinions prior to their use in connection with an agency action. Section 120.52(15), Florida Statutes
A policy implicit in agency action does not ipso facto amount to an administrative rule, even when it has been consistently applied. Home Health Professional Services, Inc, v. Department of Health and Rehabilitative Services,
463 So.2d 345 (Fla. 188 DCA 1985). The evidence in the present case showed that DNR consistently took "shore parallel site coverage" into consideration, but affirmatively demonstrated the absence of any consistent, statewide side setback requirement.
Petitioner's thesis that an unpromulgated rule, a statement of policy "applicabl[e and] . . . applied" statewide, but never adopted in the manner specified by
Chapter 120.54, Florida Statutes (1984 Supp.), cannot withstand challenge is not open to question. State, Department of Administration v. Stevens, 344 So.2d 290 (Fla. 1st DCA 1977). But Petitioner did not prove, in the present case, the existence of any writing that purported to govern applications with respect to shore parallel site coverage, much less a document purporting to set uniform, statewide side setback requirements.
Petitioner contends that DNR's policy on parallel site coverage cannot be enforced against him because the policy has not been adopted as a rule, citing Gar-Con Development, Inc., v. State, Department of Environmental Regulation, 10 FLW 1056, April 25, 1985. While a contention like this may be appropriate in the companion substantial interest case, it assumes the lack of an enforceable rule and does not bear on the preliminary question whether a rule does exist, the question that is determinative in this challenge to DNR's putative side setback - policy.
STATUTE IMPLEMENTED
Section 370.021(1), Florida Statutes (1983) authorizes DNR to adopt all rules "necessary or convenient" to the exercise of its statutory powers and responsibilities. See generally Department of Health and Rehabilitative Services v. Florida Psychiatric Society, Inc., 382 So.2d 1280 (Fla. 1st DCA 1980). The parties are in agreement that substantive authority for the promulgated rules under challenge here derives, if from any statute, from Section 161.053, Florida Statutes (1983), which provides, in pertinent part:
161.053 Costal construction and excava- tion; regulation on county basis.-
The Legislature finds and declares that the beaches in this state and the coastal barrier dunes adjacent to such beaches, by their nature, are subject to frequent and severe fluctuations and represent one of the most valuable natural resources of Florida and that it is in the
public interest to preserve and protect them from imprudent construction which can jeopardize the stability of the beach-dune system, accelerate erosion, provide
inadequate protection to upland structures, and endanger adjacent property and the beach- dune system. In furtherance of these findings, it is the intent of the Legislature to provide that the department establish coastal construction control lines on a county basis along the sand beaches of the state fronting on the Atlantic Ocean or the Gulf of Mexico. Such lines shall be established so as to define that portion of the beach-dune system which is subject to severe fluctuations based on a 1OO-year storm surge, storm waves, or other predictable weather conditions. However, the department may establish a segment or segments of a coastal construction control line further landward than the impact zone of a 1OO-year storm surge, provided such segment or segments do not extend beyond the landward top of the coastal barrier dune structure that intercepts the 100-year storm surge.
Such segment or segments shall not be established if adequate dune protection is provided by a state-approved dune management plan. Special siting and design considerations shall be necessary seaward of established coastal construction control lines to ensure the protection of the beach- dune system, proposed or existing structures, and adjacent properties.
Coastal construction control lines
shall be established by the department . . .
. . . [A] permit to alter, excavate, or construct on property seaward of established coastal construction control lines may be granted by the department as follows:
The department may authorize an excavation or erection of a structure at any coastal location as described in subsection
upon receipt of an application from a property and/or riparian owner and upon the consideration of facts and circumstances, including adequate engineering data concerning shoreline stability and storm tides related to shoreline topography, design features of the proposed structures or activities, and potential impacts of the
location of such structures or activities including potential cumulative effects of any proposed structures or activities upon such beach-dune system, which in the opinion of the department, clearly justify such a permit.
If in the immediate contiguous or adjacent area a number of existing structures have established a reasonably continuous and uniform construction line closer to the line of mean high water than the foregoing, and if the existing structures have not been unduly affected by erosion, a proposed structure may, at the discretion of the department, be permitted along such line on written authorization from the department if such structure is also approved by the
department. However, the department shall not contravene setback requirements or zoning or building codes established by a county or municipality which are equal to, or more strict than, those requirements provided herein . . . .
It is the statute and not any putative rule that makes necessary "[s]pecial siting and design considerations . . .
seaward of established coastal construction control lines," Section 161.053(1), Florida Statutes (1983), in the first instance.
CHALLENGER'S BURDEN
When an agency interprets a statute it administers by promulgating a rule," the burden of demonstrating agency action to be arbitrary or capricious or an abuse of administrative discretion is a stringent one indeed." Agrico Chemical Co. v. State, Department of Environmental Regulation, 365 So.2d 759, 763 (Fla. 1st DCA 1978) cert. den. 376 So.2d 74 (Fla. 1979). The court elaborated:
Thus, in 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.
A capricious action is one which is taken without thought or reason or
irrationally. An arbitrary decision is one not supported by facts or logic, or despotic. Administrative discretion must be
reasoned and based upon competent substantial evidence. Competent substantial evidence has been described as such evidence as a reasonable person would accept as adequate to support a conclusion. 365 So.2d at 763.
The legislature may authorize administrative agencies to interpret, Department of Professional Regulation, Board of Medical Examiners v. Durrani, 455 So.2d 515, 517 (Fla. 1st DCA 1984), but never to alter statutes. State, Department of Business Regulation v. Salvation Limited, Inc., 452 So.2d 65 (Fla. 1st DCA 1984). The precise rule of decision for determining whether an administrative rule crosses the line dividing statutory implementation from statutory abrogation is not always clear, compare State, Department of Health and Rehabilitative Services v. McTigue, 387 So.2d
454 (Fla. 1st DCA 1980) (rule requirement that license applicant furnish names and addresses so agency could verify that statutory criteria had been met stricken as ultra vires) with Department of Health and Rehabilitative Services v. Framat Realty, Inc., 407 So.2d 238 (Fla. 1st. DCA 1981) (rule substituting for statutory term "acre" the term "net acre" as defined by agency upheld), but the general idea is that no agency shall usurp the legislature's prerogative of amending and enacting statutes.
CHALLENGED PROVISIONS
The specific provisions of Chapter 16B-33, Florida Administrative Code, under challenge read:
. . . The Department encourages all
applicants for permits as provided herein to design proposed structures and excavation in a manner to effectively utilize all property landward of the 50-foot setback of coastal construction control line so that such proposed structures or excavations shall extend as little a distance seaward of such established lines as possible. Rule 16B- 33.05(6), Florida Administrative Code.
The necessity for activities
seaward of the control line or setback line shall be stated and clearly justified by the applicant in accordance with the requirements of this chapter. . . . Rule 16B-33.07(7), Florida Administrative Code.
Beginning with the latter, it is clear that the first sentence of Rule 16B-33.07(7), Florida Administrative Code, so closely mirrors the language of Section 161.053(4)(a), Florida Statutes (1983) ("the department may authorize an excavation or erection of a structure [seaward of the control line] . . . upon the consideration of facts and circumstances . . . which in the opinion of the department, clearly justify such a permit") that the rule is good if the statute is good; and for present purposes the statute is conclusively presumed valid. E.g., Cook v. Florida Parole and Probation Comission, 415 So.2d 845 (Fla. 1st DCA 1982).
ENCOURAGEMENT BY DENIAL
The final sentence of Rule 16B-33.05, Florida Administrative Code, is problematic for two reasons. On the one hand it introduces a criterion nowhere explicitly appearing in the statute. This provision "encourages" building upland of the coastal construction control line, if possible, or "as little a distance seaward of such established lines as possible." Rule 16B-33.05(6), Florida Administrative Code. In Coley v. Department of Natural Resources (DOAH; Sept. 21, 1984), 6 FALR 6652, Hearing Officer Oldham stated, with reference to Rule 16B-33.05(6), Florida Administrative Code:
Although this rule does not specifically implement any explicit portion of statutory authority, it is in the nature of an exhortation rather than the imposition of a
requirement, and is certainly in keeping with the legislative purpose in establishing the coastal construction control line. 6 FALR at 6661.
But the proof in the present case showed that DNR proposes to deny Hill's application partly because Hill owns "160 feet of property located landward of the control line." Petitioner's Exhibit No. 1. It is thus clear that the rule's "exhortation" has the same bite as a more forthright statement would have had. In this respect the final sentence of Rule 16B-33.05(6), Florida Administrative Code, resembles the rule at issue in Humana, Inc., v Department of Health and Rehabilitative Services, 469 So.2d 889 (Fla. 1st DCA 1985), which, by its terms, "normally" applied.
Here, as in the Humana case, the rule imposes requirements. Both rules are worded so as to preserve agency flexibility, which goes to the reasonableness of the requirements, not to the question of their existence.
Hill's challenge squarely poses the question whether DNR has authority to require a landowner to build landward of the coastal construction control line when he owns property on both sides of the line. Section 161.053, Florida Statutes (1983) is devoid of any suggestion that the ownership of property landward of the coastal construction control line figures in the regulatory scheme in any way. Even if it were open to DNR to promulgate a rule like Rule 16B-33.05(6), Florida Administrative Code, the approach the rule represents might boomerang, by conveyances of the portions of waterfront parcels landward of the line before permit applications were filed, precluding accommodation that might otherwise have been possible. But, regardless of its wisdom, Rule 16B- 33.05(6), Florida Administrative Code, goes well beyond an interpretation of Section 161.053, Florida Statutes (1983). Cf. Board of Optometrv v. Florida Medical Ass'n., 463 So.2d 1213 (Fla. 1st DCA 1985); Department of Health and Rehabilitative Services v. Petty-Eifert, 443 So.2d 266 (Fla. 1st DCA 1983). By purporting to authorize DNR to deny a coastal construction permit on account of the ownership of upland property, the rule dramatically expands the scope of the statute, albeit, as was said in the Coley case, in a direction that may be said to be in keeping with the general statutory purpose of beach conservation. Cf. Section 33, Chapter 85-55, Laws of Florida (1985), amending Section 161.053, Florida Statutes (1983).
The final sentence of Rule 16B-33.05(6), Florida Administrative Code, is an invalid exercise of delegated legislative authority.
As to the initial sentence of Rule 16B-33.07(7), Florida Administrative Code, the petition for determination of the invalidty of existing rules is denied.
As to DNR's putative "policy . . . providing that any construction seaward of an existing coastal construction control line ("CCCL") not occupy more than 50 percent to 60 percent of the shore parallel site coverage of the CCCL permit applicant's waterfront lot," the petition for determination of the invalidity of existing rules is dismissed.
DONE AND ORDERED this 15th day of October, 1985, at Tallahassee, Florida.
ROBERT T. BENTON II
this 15th day of October, 1985.
APPENDIX TO FINAL ORDER, CASE NO. 85-2814RX
Petitioner's proposed findings of fact Nos. 1 through
11 have been adopted in substance. Paragraphs 11 through
14 and 16 of Petitioner's proposed findings of fact have been treated in paragraphs 1 through 5 of the final order, as has much of paragraph 15. The final and antepenultimate sentences of paragraph 15, while established by a preponderance of the evidence are subordinate. Paragraph
17 of Petitioner's proposed findings of fact has been treated in paragraph 1 of the final order.
Respondent's proposed findings of fact have been adopted, in substance, in their entirety.
Thomas G. Pelham, Esquire William L. Hyde, Esquire
Dr. Elton Gissendanner, Executive Director Department of Natural Resources
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 Rule 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.
