STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
FLORIDA EAST COAST INDUSTRIES, )
INC., and its subsidiaries )
Florida East Coast Railway )
Company, and Gran Central )
Corporation, )
)
Petitioners, )
and )
) CASE NO. 92-6325RP FLORIDA ASSOCIATION OF COUNTIES, )
INC., and FLORIDA ELECTRIC ) POWER COORDINATING GROUP, INC., )
)
Intervenors, )
)
vs. )
) STATE OF FLORIDA, DEPARTMENT OF ) COMMUNITY AFFAIRS, )
)
Respondent, )
and )
) FLORIDA LEAGUE OF CITIES, INC., ) 1000 FRIENDS OF FLORIDA, and ) DEPARTMENT OF ENVIRONMENTAL )
PROTECTION, )
)
Intervenors, )
)
vs. )
) FLORIDA ASSOCIATION OF REALTORS, )
R. J. COLLINS, FLORIDA LAND )
COUNCIL, INC., FLORIDA FARM ) BUREAU FEDERATION, HIGHLANDS ) COUNTY FARM BUREAU, and CLAUDE )
E. SMOAK, JR., )
)
Intervenors. )
) ST. JOE PAPER COMPANY, and its )
subsidiaries St. Joe ) Communications, Inc., St. Joe ) Land & Development Company, ) Apalachicola Northern Railroad ) Company, St. Joe Forest Products ) Company, St. Joe Industries, and ) St. Joe Container Company, )
)
Petitioners, )
and )
) FLORIDA ASSOCIATION OF COUNTIES, ) INC., and FLORIDA ELECTRIC ) POWER COORDINATING GROUP, INC., )
)
Intervenors, )
)
vs. ) CASE NO. 92-6328RP
) STATE OF FLORIDA, DEPARTMENT OF ) COMMUNITY AFFAIRS, )
)
Respondent, )
and )
) FLORIDA LEAGUE OF CITIES, INC., ) 1000 FRIENDS OF FLORIDA, and ) DEPARTMENT OF ENVIRONMENTAL )
PROTECTION, )
)
Intervenors, )
)
vs. )
) FLORIDA ASSOCIATION OF REALTORS, )
R. J. COLLINS, FLORIDA LAND )
COUNCIL, INC., FLORIDA FARM ) BUREAU FEDERATION, HIGHLANDS ) COUNTY FARM BUREAU, and CLAUDE )
E. SMOAK, JR., )
)
Intervenors. )
)
FINAL ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a formal hearing in the above-styled cases on September 8-10, 1993, and September 13-15, 1993, in Tallahassee, Florida.
APPEARANCES
For Petitioners: Fred H. Kent, Jr., Esquire
Thomas F. McMorrow, Esquire
Kent, Hayden, Faccilo, & McMorrow
200 West Forsyth Street, Suite 1330 Jacksonville, Florida 32202
and
Samuel J. Ard, Esquire Highpoint Center, Suite 900
106 East College Avenue Tallahassee, Florida 32302
For Respondent: Karen Brodeen, Esquire
David J. Russ, Esquire
Andrea England, Esquire Assistant General Counsel Department of Community Affairs 2740 Centerview Drive
Tallahassee, Florida 32399-2100
For Intervenor: Robert C. Apgar, Esquire Florida League David A. Theriague, Esquire of Cities Apgar & Theriague
820 East Park Avenue Tallahassee, Florida 32301
and
Jane C. Hayman, Esquire Deputy General Counsel Florida League of Cities
201 West Park Avenue Tallahassee, Florida 32301
For Intervenor: Richard Grosso, Esquire
1000 Friends of Rebecca Grace, qualified representative Florida 1000 Friends of Florida
310 West College Avenue Tallahassee, Florida 32314-5948
For Intervenor: Betsy Hewitt, Esquire Department of Assistant General Counsel
Environmental Department of Environmental Protection Protection Twin Towers Office Building
2600 Blair Stone Road Tallahassee, Florida 32301
For Intervenors: Wade Hopping, Esquire Florida Elizabeth C. Bowman, Esquire Association of Hopping, Boyd, Green & Sams Realtors and 123 South Calhoun Street
R. J. Collins Tallahassee, Florida 32301
For Intervenor: William D. Preston, Esquire Florida Electric Hopping, Boyd, Green & Sams Power Coordina- 123 South Calhoun Street ting Group Tallahassee, Florida 32301
For Intervenor: Thomas R. Moore, Esquire Florida Roberts & Egan Association of 217 South Adams Street
Counties Tallahassee, Florida 32301
For Intervenors: Michael Wm. Morell, Esquire Florida Land Attorney at Law
Council, Inc., 310 West College Avenue Florida Farm Tallahassee, Florida 32301 Bureau Federation,
Highlands County Farm Bureau, and Claude E. Smoak, Jr.
STATEMENT OF THE ISSUES
At issue in these proceedings is the validity of respondent's proposed rules 9J-5.003(140) and 9J-5.006(6).
PRELIMINARY STATEMENT
This is a rule challenge brought under the provisions of Section 120.54(4), Florida Statutes, to challenge the validity of respondent's proposed rule 9J- 5.003(140), which defines "urban sprawl," and proposed rule 9J-5.006(6), which establishes a process for the review of comprehensive plans or plan amendments for the discouragement of urban sprawl. Here, petitioners contend that the proposed rules constitute an invalid exercise of delegated legislative authority because they enlarge, modify or contravene the specific provisions of law implemented; they are vague, fail to establish adequate standards for agency decisions, or vest unbridled discretion in the agency; or, they are arbitrary or capricious. Additionally, petitioners contend that the proposed rules "violate the [due process and equal protection] provisions of the 14th Amendment of the Constitution of the United States and Article 1, Section 9, of the Constitution of the State of Florida." [Petitioners' Proposed Recommended (sic) Order, page 4.]
The petitions filed in this case also contended that the proposed rules were invalid because the agency had materially failed to follow the applicable rulemaking procedures set forth in Section 120.54, Florida Statutes, by failing to provide a detailed economic impact statement. This issue was resolved adverse to petitioners when respondent's motion for partial summary final order was granted by order of August 26, 1993. Such order further observed that "a final order on such issue will be issued contemporaneously with or included within the final order issued on the issues remaining." This final order addresses the factual predicate and legal conclusions dispositive of that issue.
At hearing, petitioners called, as witnesses: Richard Ray, William Durham, Jr., Robert Pennock, Maria Abadal, Richard Peiser, Georgeanne Ratliff, Robert Routa, and David Tillis. Petitioners' exhibits 1A (pp. 1-115), 1C (pp. 276-325)
, 1F, 2, 3A, 3B (pp 191-203), 3C (pp 268-282 and 322-371), and 4-10 were
received into evidence. Respondent called, as witnesses: Robert Pennock, Thomas Pelham, Julia Magee, Kevin Lilly, Robert Magee, and Arthur Nelson. Respondent's exhibits 1-21 and 26-28 were received into evidence. Intervenor, Florida League of Cities, called Richard Bernhardt as a witness.
The transcript of hearing was filed October 4, 1993, and the parties were granted leave until November 24, 1993, to file proposed final orders.
Consequently, the parties waived the requirement that a final order be rendered within thirty days after the transcript is filed. Rule 60Q-2.031, Florida Administrative Code. The proposed findings of fact, for those parties who elected to file such proposals, have been addressed in the appendix to this final order.
FINDINGS OF FACT
The parties
Petitioner, St. Joe Paper Company, is a Florida corporation which owns either directly or through its subsidiaries approximately 1,500,000 acres of land in Florida. Petitioner, Florida East Coast Industries, Inc., is also a
Florida corporation which owns either directly or through its subsidiaries approximately 17,500 acres of land along the east and west coast of Florida.
Respondent, Department of Community Affairs (Department or DCA), is the state land planning agency under the provisions of Chapter 163, Part II, Florida Statutes, [the "Local Governmental Comprehensive Planning and Land Development Regulation Act" (the "Act")]. As the state land planning agency under the Act, the Department is charged by law with the duty to provide technical assistance to local governments in preparing comprehensive plans and with the duty to ascertain whether local comprehensive plans or plan amendments are in compliance with the provisions of Chapter 163, Part II, Florida Statutes.
Here, the parties have stipulated that petitioners, St. Joe Paper Company and Florida East Coast Industries, Inc., as well as their subsidiaries, and intervenors, Florida League of Cities, 1000 Friends of Florida, Department of Environmental Protection, Florida Association of Realtors, R. J. Collins, Florida Electric Power Coordinating Group, and Florida Association of Counties, have standing. No such stipulation was, however, accorded intervenors Florida Land Council, Inc., Florida Farm Bureau Federation, Highlands County Farm Bureau, and Claude E. Smoak, Jr., and they offered no proof at hearing to demonstrate standing. Notwithstanding, the Department raised no objection and its post hearing submittal does not contest their standing.
Publication of notice and the economic impact statement
On October 2, 1992, the Department first published notice of the proposed revisions to Chapter 9J-5, Florida Administrative Code, in volume 18, number 40, of the Florida Administrative Weekly. Such publication contained the following statement regarding the economic impact of the proposed rules:
SUMMARY OF THE ESTIMATED ECONOMIC IMPACT OF THE PROPOSED RULES:
The estimated agency cost to be incurred by this action is $3,627, which is the cost
of promulgating the rule amendment . . .
It is not anticipated that the amendment will generate additional costs to local governments and other affected persons above and beyond those attributable to existing
rules and statutes. Ultimately, it is believed that this amendment will result in more efficient patterns of development which allow services and facilities to be provided more cost efficiently . . . to local governments.
The procedures required by the proposed amendments have no significant impact on competition and the open market for employment.
There is no impact on small or minority business as defined by the Florida Small and Minority Business Assistance Act of 1985.
On October 23, 1992, petitioners filed their initial petition for an administrative determination of the invalidity of the proposed rules. Such petition contended, inter alia, that the proposed rules were invalid for the agency's failure to prepare an economic impact statement that complied with the
provisions of Section 120.54(2)(c), Florida Statutes. Petitioners did not, however, at any time, file a request for the preparation of an economic impact statement with the agency. 1/
Background of the rules
Pursuant to Section 163.3184(8)(a), Florida Statutes, the Department is obligated to review each adopted local plan or plan amendment and determine if it is in compliance with the Act. Section 163.3184(1)(b), Florida Statutes, defines "in compliance" as:
. . . consistent with the requirements of ss. 163.3177, 163.3178, and 163.3191, the
state comprehensive plan, the appropriate regional policy plan, and rule 9J-5, F.A.C., where such rule is not inconsistent with chapter 163, part II.
In 1985 the Legislature directed the Department to develop Chapter 9J- 5, Florida Administrative Code, and apply it to the review of local plans. The Legislature has reviewed the rule, as adopted, and given it special legal protection from rule challenges. Section 163.3177(10), Florida Statutes.
Among the rules so approved, was Rule 9J-5.006 which provided that "the purpose of the future land use element is the designation of future land use patterns as reflected in the goals, objectives and policies of the local government comprehensive plan elements." Rule 9J-5.006(3)(b)7 provides that the future land use element shall contain specific goals, objectives and policies which discourage the proliferation of urban sprawl, and Rule 9J-5.011(2)(b)3 provides that the general sanitary sewer, soiled waste, drainage, potable water and natural groundwater aquifer recharge element shall contain objectives and policies which address the use of existing facilities and the discouragment of urban sprawl.
The Department has, since approximately 1988, developed, refined and explicated its policy regarding the discouragement of urban sprawl in local government comprehensive plans.
In a technical memo issued in 1989, the Department observed:
If the goals and objectives of Florida's growth management laws are to be achieved, local plans must effectively deal with urban sprawl and the closely related issues of conservation, natural resource protection, and efficient use of public facilities and services. [DCA Exhibit 12]
That publication further set forth the Department's definition of urban sprawl, and discussed the various provisions in the State Comprehensive Plan (Chapter 187, Florida Statutes), Chapter 163, Part II, Florida Statutes, and Chapter 9J- 5, Florida Administrative Code, which related to the discouragement of urban sprawl.
As for the term "urban sprawl," the technical memo provided:
The term "urban sprawl" as it is applied by the DCA in its review of local plans is used to describe certain kinds of growth or development patterns. It refers to scattered, untimely, poorly planned urban development that occurs in urban fringe and rural areas and frequently invades lands important for environmental and natural resource protection. Urban sprawl typically manifests itself in one or more of the following patterns: (1) leapfrog development; (2) ribbon or strip development; and (3) large expanses of low- density, single-dimensional development.
Leapfrog development occurs when new development is sited away from an existing urban area, bypassing vacant parcels located in or closer to the urban area that are suitable for development. It typically results in scattered, discontinuous growth patterns in rural areas which are frequently not appropriate for urban development.
* * *
Leapfrog development commonly occurs in areas where infrastructure and services do not already exist to serve it; thus, it requires additional utility extensions and involves higher public capital costs if complete urban services are to be provided at the time of development. If complete urban services, such as connection to central water and sewer systems, are not required, leapfrog development can result in increased risks to water supplies and sensitive environmental areas.
* * *
Strip or ribbon development involves the location of high amounts of commercial, retail, office and often multi-family residential development in a linear pattern along both sides of major arterial roadways. Strip development is generally dependent on direct access to the arterial roadway and typically reduces the efficiency of the roadway for moving through traffic due to the high number of crub and median cuts and access points permitted. Strip development frequently overburdens arterial roadways with local trips because local road networks are poorly developed or nonexistent.
Unsightly strip development can extend for miles along arterials into rural, previously undeveloped areas, and sometimes encroach on environmentally sensitive lands or important natural resource areas. Large land areas
behind and between strip developments are commonly left undeveloped.
Low-density, single-dimensional development consists of single land uses, typically low- density residential, spread over large land areas. Frequently, the land is in rural, forestry, agricultural, or environmentally sensitive areas that should be protected from urban development. This land-intensive development pattern, stemming from uncontrolled, poorly planned, and premature development, tends to place an undue burden on external infrastructure and major transportation connectors by not providing a complementary mix of residential and nonresidential uses. Sprawling single-use development hinders the evolution of vibrant communities, reinforces dependence upon personal automobile use, generates higher public costs for facilities and services, promotes an inefficient and unattractive use of developable land, and frequently destroys significant environmental and natural resources.
* * *
In other words, urban sprawl is the epitome of bad land use planning. It adversely impacts and often destroys precious natural resources. It promotes inefficient use of land resources and existing public facilities and services, and makes it difficult or impossible to provide new infrastructure and services efficiently to new development. It produces development that is typically unsightly and not aesthetically pleasing. It produces sterile, one-dimensional urban environments which are not convenient, enjoyable or healthy for their residents.
Successfully discouraging urban sprawl through local comprehensive planning is not a mystical art. It requires rigorous data collection, thorough analyses of current and future needs, effective planning, and responsible decision making. . . .
Also pertinent to the Department's policy on urban sprawl, and an assessment of the propriety of the proposed rules, the State Comprehensive Plan contains a number of goals and policies which both individually and collectively address the issue of urban sprawl. Some of these goals and policies are as follows:
(5) HOUSING--
Goal.--The public and private sectors shall increase the affordability and availability of housing for low-income and moderate-income persons, including citizens in rural areas, while at the same time encouraging
self-sufficiency of the individual and assuring environmental and structural quality and cost- effective operations.
Policies--
* * *
3. Increase the supply of safe, affordable, and sanitary housing for low-income and moderate-income persons and elderly persons
by alleviating housing shortages, recycling older houses and redeveloping residential neighborhoods, identifying housing needs, providing incentives to the private sector to build affordable housing, encouraging public- private partnerships to maximize the creation of affordable housing, and encouraging research into low-cost housing construction techniques, considering life-cycle operating costs.
* * *
(8) WATER RESOURCES.--
Goal.--Florida shall assure the availability of an adequate supply of water for all competing uses deemed reasonable and beneficial and shall maintain the functions of natural systems and the overall present level of surface and ground water quality. Florida
shall improve and restore the quality of waters not presently meeting water quality standards.
Policies.--
* * *
2. Identify and protect the functions of water recharge areas and provide incentives for their conservation.
* * *
5. Ensure that new development is compatible with existing local and regional water supplies.
* * *
Encourage the development of a strict floodplain management program by state and local governments designed to preserve hydrologically significant wetlands and other natural floodplain features.
Protect aquifers from depletion and contamination through appropriate regulatory programs and through incentives.
Protect surface and groundwater quality and quantity in the state.
* * *
Eliminate the discharge of inadequately treated wastewater and stormwater runoff into the waters of the state.
NATURAL SYSTEMS AND RECREATIONAL LANDS--
Goal.--Florida shall protect and acquire unique natural habitats and ecological systems, such as wetlands, tropical hardwood hammocks, palm hammocks, and virgin longleaf pine forests, and restore degraded natural systems to a functional condition.
Policies.--
Conserve forests, wetlands, fish, marine life, and wildlife to maintain their environmental, economic, aesthetic, and recreational values.
Acquire, retain, manage, and inventory public lands to provide recreation, conservation, and related public benefits.
Prohibit the destruction of endangered species and protect their habitats.
* * *
7. Protect and restore the ecological functions of wetlands systems to ensure their long-term environmental, economic and recreational value.
Develop and implement a comprehensive planning, management, and acquisition program to ensure the integrity of Florida's river systems.
Emphasize the acquisition and maintenance of ecologically intact systems in all land and water planning, management, and regulation.
Expand state and local efforts to provide recreational opportunities to urban areas, including the development of activity- based parks.
* * *
13. Encourage the use of public and private financial and other resources for the development of recreational opportunities at the state and local levels.
AIR QUALITY.--
Goal.--Florida shall comply with all national air quality standards by 1987, and by 1992 meet standards which are more stringent than 1985 state standards.
Policies.--
* * *
2. Ensure that developments and transportation systems are consistent with the maintenance of optimum air quality.
* * *
ENERGY--
Goal.--Florida shall reduce its energy requirements through enhanced conservation and efficiency measures in all end-use sectors, while at the same time promoting an increased use of renewable energy resources.
Policies--
1. Continue to reduce per capita energy consumption.
* * *
Improve the efficiency of traffic flow on existing roads.
Ensure energy efficiency in transportation design and planning and increase the availability of more efficient modes of transportation.
* * *
HAZARDOUS AND NONHAZARDOUS MATERIALS AND WASTE.--
Goal.--All solid waste, including hazardous waste, wastewater, and all hazardous materials shall be properly managed, and the use of landfills shall be eventually eliminated.
Policies--
* * *
11. Identify, develop, and encourage environmentally sound wastewater treatment and disposal methods.
* * *
LAND USE.--
Goal.--In recognition of the importance of preserving the natural resources and enhancing the quality of life of the state, development shall be directed to those areas which have in place, or have agreements to provide, the land and water resources, fiscal abilities, and service capacity
to accommodate growth in an environmentally acceptable manner.
Policies--
Promote state programs, investments, and development and redevelopment activities which encourage efficient development and occur in areas which will have the capacity to service new popu- lation and commerce.
Develop a system of incentives and disincentives which encourages a separation of urban and rural land uses while protecting water supplies, resource development, and fish and wildlife habitats.
Enhance the livability and character of urban areas through the encouragement of an attractive and functional mix of living, working, shopping, and recreational activities.
* * *
6. Consider, in land use planning and regulation, the impact of land use on water quality and quantity; the availability of land, water, and other natural resources to meet demands; and the potential for flooding.
* * *
DOWNTOWN REVITALIZATION.--
Goal.--In recognition of the importance of Florida's developing and redeveloping downtowns to the state's ability to use existing infrastructure and to accommodate growth in an orderly, efficient, and environmentally acceptable manner, Florida shall encourage the centralization of commercial, governmental, retail, residential, and cultural activities within downtown areas.
Policies.--
Provide incentives to encourage private sector investment in the preservation and enhancement of downtown areas.
Assist local governments in the planning, financing, and implementation of development efforts aimed at revitalizing distress downtown areas.
Promote state programs and investments which encourage redevelopment of downtown areas.
PUBLIC FACILITIES.--
Goal.--Florida shall protect the substantial investments in public facilities that already exist and shall plan for and finance new facilities to serve residents in a timely, orderly, and efficient manner.
Policies.--
Provide incentives for developing land in a way that maximizes the uses of existing public facilities.
Promote rehabilitation and reuse of existing facilities, structures, and buildings as an alterna- tive to new construction.
Allocate the costs of new public facilities on the basis of the benefits received by existing and future residents.
* * *
(20) TRANSPORTATION--
Goal.--Florida shall direct future transport- ation improvements to aid in the management of growth and shall have a state transportation system
that integrates highway, air, mass transit, and other transportation modes.
Policies.--
* * *
2. Coordinate transportation investments in major travel corridors to enhance system efficiency and minimize adverse environmental impacts.
* * *
Encourage the construction and utilization of a public transit system, including, but not limited to, a high-speed rail system, in lieu of
the expansion of the highway system, where appropriate.
Ensure that the transportation system provides Florida's citizens and visitors with timely and efficient access to services, jobs, markets, and attractions.
* * *
(23) AGRICULTURE.--
Goal.--Florida shall maintain and strive to expand its food, agriculture, ornamental horticulture, aquaculture, forestry, and related
industries in order to be a healthy and competitive force in the national and international marketplace.
Policies.
* * *
9. Conserve soil resources to maintain the economic value of land for agricultural pursuits and to prevent sedimentation in state waters.
The technical memo, heretofore discussed, addressed in significant detail how some of these goals and policies impact the issue of urban sprawl.
The Department has also explicated its policy definition of urban sprawl, as well as the significance of urban sprawl to the state comprehensive plan, in a number of cases where, under the provisions of Section 120.57, a hearing was held to determine whether a plan was in compliance. [See, e.g., Department Exhibits 4-6].
More recently, a challenge to the Department's nonrule policy was rejected by a Hearing Officer of the Division of Administrative Hearings, and that decision was affirmed on appeal. Home Builders and Contractors Association of Brevard, Inc. v. Department of Community Affairs, 585 So.2d 965 (Fla. 1st DCA 1991). In that case, at page 968, the court observed:
. . . The hearing officer found that indeed, there was a consensus on the meaning of urban sprawl and that urban sprawl is:
[T]he extension of urban-type development into rural, agricultural, or other undeveloped or sparsely developed lands in a haphazard develop- ment pattern in which land uses are not functionally related to each other.
Common patterns of urban sprawl are the ribbon pattern, leapfrog pattern, and concentric circle pattern. In the ribbon pattern, development not functionally or proximately related to other non- urban development in the area extends in ribbons or strips along certain roads and away from urban development.
In the leapfrog pattern, development not functionally or proximately related to other non- urban development in the area leaps from urban development so as to leave significant amounts of rural, agricultural, or other undeveloped or sparsely developed land between existing urban development
and the scattered leapfrog development. The concentric circle pattern is similar except that the development not functionally or proximately related to other non-urban development in the area assumes the pattern of concentric circles, such as along rural roads bypassing an urban area, and is characteristically more exclusively low-density residential.
Next, and more importantly, the hearing officer found that DCA does not have any policies of general applicability concerning the application of the urban sprawl rules which it consistently applies to individual plans. The DCA has
yet to crystallize any urban sprawl policies which it intends to apply to individual plans. He noted that the application process, which is by nature adjudicatory, demands a through understanding of each plan, including the data and analysis describing the characteristics of the land and existing land uses; the goals,
objectives and policies prescribing proposed land uses; and the future land use map. Indeed, he recognized that the myriad of details involved
in applying the urban sprawl rules to an individual plan may preclude rulemaking, but even if theoretically possible, rulemaking in the area
of application is not now practicable. In short,
the alleged nonrule policies do not meet the definition of a rule, Section 102.52(16). These findings, which are conclusive of the outcome of the rule challenge, are based upon competent substantial evidence in
the record. Adam Smith Enterprises, Inc. v. Department of Environmental Regulation,
553 So.2d 1260, 1274 (Fla. 1st DCA 1989).
The purpose of Chapter 9J-5 and the proposed rules
The purpose of Chapter 9J-5, as stated in 9J-5.001, is to "establish minimum criteria for the preparation, review, and determination of compliance of comprehensive plans" pursuant to Chapter 163, Part II, Florida Statutes. "Criterion " is defined in Webster's New Collegiate Dictionary (1974) as "a standard on which a judgment or decision may be based."
Consistent with such purpose, Chapter 9J-5 has heretofore established the general requirements for local comprehensive plans, including format (elements), data and analysis requirements, level of service standards, planning time frames, and monitoring and evaluation requirements. Rule 9J-5.005, Florida Administrative Code. The chapter also includes standards for the adoption of concurrency management systems to ensure that adopted level of service standards required for roads, potable water, sanitary sewer, solid waste, drainage, parks and recreation, and mass transit, if applicable, will be maintained. Rules 9J- 5.0055 and 9J-5.0057, Florida Administrative Code. Finally, the chapter includes the minimum requirements for the future land use element; traffic circulation element; mass transit element; ports, aviation and related facilities element; housing element; sanitary sewer, solid waste, drainage, potable water and natural groundwater aquifer recharge element; coastal management element; conservation element; recreation and open space element; intergovernmental coordination element; and capital improvement element. Common to each of these elements is the requirement that the local government assess current conditions and needs, and project future growth based on appropriate and relevant data and analysis. Rules 9J-5.006-5.016, Florida Administrative Code.
Here, the Department is proposing to define the term "urban sprawl" for purposes of Chapter 9J-5 and to establish a methodology or standard for the review of local comprehensive plans or plan amendments for the discouragement of urban sprawl. By so doing, the Department is seeking to codify in rule form the policies it has previously explicated on the subject.
In gauging the propriety or sufficiency of the proposed rules, it is important to recognize that an analysis of urban sprawl is but one aspect of a complicated evaluation of a particular plan or plan amendment for consistency, and that such analysis is peculiarly dependent upon an evaluation of the specific plan or plan amendment and its supporting data and analysis. Concomitantly, an analysis of a plan or plan amendment to discern whether it discourages urban sprawl is site or community specific, and no single formula could address the myriad of growth patterns existent within the diverse communities of the State of Florida with mathematical certainty.
The proposed rules
The rules challenged in these proceedings are proposed rule 9J- 5.003(140), which defines "urban sprawl," and proposed rule 9J-5.006(6), which establishes a process for the review of plans for discouraging the proliferation of urban sprawl.
Proposed rule 9J-5.003(140), defines "urban sprawl" as follows: "Urban sprawl" means urban development or
uses which are located in predominantly rural areas, or rural areas interspersed with generally low-intensity or low-density urban uses, and which are characterized by one or more of the following conditions:
The premature or poorly planned conversion of rural land to other uses.
The creation of areas of urban development or uses which are not functionally related to land uses which predominate the adjacent area.
The creation of areas of urban development or uses which fail to maximize the use of existing public facilities or the use of areas within which public services are currently provided.
Urban sprawl is typically manifested in one or more of the following land use or development patterns: (1) Leapfrog or scattered development;
ribbon or strip commercial or other development; or (3) large expanses of predominantly low-intensity, low-density, or single-use development.
This definition of urban sprawl includes terms which also have proposed definitions in Rule 9J-5.003, and are not the subject of challenge. These provisions are as follows:
(35) "Density" means an objective measurement of the number of people or residential units allowed per unit of land, such as residents or employees per acre.
* * *
(37) "Development" has the meaning described in s. 380.04, F.S.
* * *
(55) "Functional relationship" means a complementary and interactive relationship among land uses or development, including at a minimum a substantial and positive exchange of human interaction, goods, resources,
institutions, services, jobs or workers between land uses or developments.
* * *
(64) "Intensity" means an objective measurement of the extent to which land may be developed or used, including the consumption or use of the space above, on or below ground; the measurement
of the use of or demand on natural resources; and the measurement of the use of or demand on facilities and services.
* * *
(116) "Rural areas" means low density areas characterized by social, economic and institutional activities which may be largely based on agricultural uses or the extraction of natural resources in unprocessed form, or areas containing large proportions of undeveloped, unimproved, or low density property.
The definition of urban sprawl proposed by the Department is a sound generic definition that finds support in the literature and among professional planners. Indeed, urban sprawl is generally conceived as an extension of urban- type development into rural or sparsely developed lands in a haphazard development pattern in which land uses are not functionally or proximately related to each other. Such development may be reasonably described as uncontrolled, poorly planned and premature since it commonly occurs in areas where infrastructure and services do not already exist to serve it and where the urban development or uses are not functionally related to the uses which predominate the area. Moreover, the proof supports the conclusion that, as observed in the proposed rule, the three patterns in which urban sprawl commonly manifests itself are leapfrog or scattered development, ribbon or strip commercial or other development (i.e., retail, office and multifamily residential development), and large expanses of predominately low-intensity, low density, or single-use development.
While the proposed rule is sound in a generic sense, that does not suggest that the exercise of professional planning judgment is not required for its application. Indeed, whether the land area at issue in a comprehensive plan or plan amendment is a rural area interspersed with generally "low-intensity or low-density urban uses," and whether such uses or planned uses may be reasonably characterized as the "premature or poorly planned conversion of rural land to other uses," the "creation of areas of urban development or uses which are not functionally related to land uses which predominate the adjacent area," or the "creation of areas of urban development or uses which fail to maximize the use of existing public facilities or the use of areas within which public services are currently provided," certainly involve the exercise of professional judgment in any analysis of a comprehensive plan or plan amendment. Such analysis is not, however, bereft of objective factors to guide it or to test its ultimate conclusions. Indeed, any such analysis is dependent upon the specific comprehensive plan or plan amendment under review, which would include the future land use element, as well as the local government's specific data and analysis which support it.
The other rule under challenge, proposed rule 9J-5.006(6), establishes a process for the review of comprehensive plans or plan amendments for discouraging the proliferation of urban sprawl. It is organized into twelve paragraphs, with paragraphs (g)-(j) being the focus of the subject challenge.
The purpose or function of paragraphs (g)-(j) are described in the proposed rule as follows:
Use of indicators. Paragraph (6)(g) describes those aspects or attributes of a plan or plan amendment which, when present,
indicate that the plan or plan amendment may fail to discourage urban sprawl. For purposes of reviewing the plan for discouragement of urban sprawl, an evaluation shall be made whether any of these indicators is present in a plan or plan amendment. If an indicator is
present, the extent, amount or frequency of that indicator shall be considered. The presence and potential effects of multiple indicators shall be considered to determine whether they collectively reflect a failure to discourage urban sprawl.
Methodology for determining indicators.
Paragraphs (6)(h) through (6)(j) describe the
three major components of a methodology to determine the presence of urban sprawl indicators. Paragraph (6)(h) describes how land use aspects of a plan shall be analyzed. The land use element, including both the future land use map and associated objectives and policies, represents the focal point of the local government's planning effort. Paragraph (6)(i) describes the unique features and characteristics
of each jurisdiction which provide the context of the analysis and which are needed to evaluate the extent, amount or frequency of an indicator and the significance of an indicator for a specific jurisdiction. Paragraph (6)(j) recognizes that land use plans generally may be significantly affected by other development policies in a plan which may serve to mitigate the presence of urban
sprawl indicators based on the land use plan alone. Paragraph (6)(j) describes development controls which may be used by a local government to mitigate the presence of sprawl.
Simply stated, paragraphs (h)-(j) are the components for an analysis of a plan or plan amendment to discern whether any of the indicators of urban sprawl, specified in paragraph (g), are present. If present, "the extent, amount or frequency of that indicator . . . [or] multiple indicators" must "be considered to determine whether they collectively reflect a failure to discourage urban sprawl." Proposed rule 9J-5.006(6)(d).
The primary indicators, established by proposed rule 9J-5.006(6)(g), that a plan or plan amendment does not discourage the proliferation of urban sprawl, are stated to be:
Promotes, allows or designates for development substantial areas of the jurisdiction to develop as low-intensity, low-density, or single-use development or uses in excess of demonstrated need.
Promotes, allows or designates significant amounts of urban development to occur in rural areas at substantial distances from existing urban areas while leaping over undeveloped
lands which are available and suitable for development.
Promotes, allows or designates urban
development in radial, strip, isolated or
ribbon patterns generally emanating from existing urban developments.
As a result of premature or poorly planned conversion of rural land to other uses, fails adequately to protect and conserve natural resources, such as wetlands, floodplains, native vegetation, environmentally sensitive areas, natural groundwater aquifer recharge areas, lakes, rivers, shorelines, beaches, bays, estuarine systems, and other significant natural systems.
Fails adequately to protect adjacent agricultural areas and activities, including silviculture, and including active agricultural and silvicultural activities as well as passive agricultural activities and dormant, unique and prime farmlands and soils.
Fails to maximize use of existing public facilities and services.
Fails to maximize use of future public facilities and services.
Allows for land use patterns or timing which disproportionately increase the cost in time, money and energy, of providing and maintaining facilities and services, including roads, potable water, sanitary sewer, stormwater management, law enforcement, education, health care, fire and emergency response, and general government.
Fails to provide a clear separation between rural and urban uses.
Discourages or inhibits in fill development or the redevelopment of existing neighborhoods and communities.
Fails to encourage an attractive and functional mix of uses.
Results in poor accessibility among liked or related land uses.
Results in the loss of significant amounts of functional open space.
As heretofore found, urban sprawl is typically manifested by leapfrog or scattered development, ribbon or strip commercial or other development, and large expanses of predominantly low-intensity, low-density, or single-use development. Indicators 1-3 are appropriate indicators of urban sprawl as they reflect the three typical ways in which it is manifested. Moreover, a plan or plan amendment that evidenced such characteristics might reasonably be found not in compliance with the mandates of Sections 163.3177(1) and (6)(a), Florida Statutes; the State Comprehensive Plan, Section 187.201(16) and (18), Florida Statutes; and, the provisions of Chapter 9J-5, Florida Administrative Code, relating to, inter alia, the minimum criteria required of local government plans relating to the future land use element, and such provisions of law may be reasonably read to speak to the issue of discouraging urban sprawl.
Indicator 4 is also an appropriate indicator of urban sprawl since the premature or poorly planned conversion of rural land to other uses frequently intrudes on, or fails to adequately protect and conserve natural resources, such as wetlands, natural groundwater aquifer recharge areas, lakes, rivers and
shorelines. As with other indicators, this indicator finds support in, and furthers, existent law which speaks to the adoption of standards for the orderly and balanced growth of an area, including the conservation and protection of natural resources. See Section 163.3177(1) and (6)(d) and (g), Florida Statutes, Section 187.201(9), (10) and (16), Florida Statutes, and Rules 9J- 5.006, 9J-5.011, 9J-5.012, and 9J-5.013, Florida Administrative Code.
Indicators 5 and 9 are also appropriate indicators of urban sprawl since the intrusion of urban activities into rural areas frequently has negative impacts on rural uses such as logging, farming and mining. As with the previous indicators, these indicators are supported by, and further, existent law, which addresses the orderly and balanced development of the area, the control and distribution of population densities, the conservation of soil resources to maintain viable agricultural pursuits, and the separation of rural and urban uses. See Section 163.3177(1), and (6)(a) and (d), Florida Statutes, Section 187.201(16)(a), 16(b)2, (23)(a) and (23)(b)9, Florida Statutes, and Rule 9J- 5.006, Florida Administrative Code.
Indicators 6 and 7 are also appropriate indicators of urban sprawl since a failure to utilize existing and future capacity of public facilities and services often evidences a failure to guide development into areas with existent infrastructure appropriate for development. These indicators are consistent with, and further, current comprehensive planning laws which favor orderly and balanced development, encourage efficient development, and maximize the use of existing public facilities. See Section 163.3177(1) and (6)(a), Florida Statutes, Section 187.201(16)(a) and (b)1, (17)(a), (18)(a), and (18)(b) 1 and 2, Florida Statutes, and Rules 9J-5.006, 9J-5.011, and 9J-5.016, Florida Administrative Code.
Indicator 8 is an appropriate indication of urban sprawl for the same reasons addressed as to indicators 6 and 7, and because such premature expansion of land uses requires the extension of public facilities and services at disproportionate costs. This indicator is also consistent with, and furthers, the comprehensive planning laws addressed as to indicators 6 and 7.
Indicator 10 is an appropriate indication of urban sprawl since a failure to encourage infill development or the redevelopment of existing neighborhoods and communities is consistent with failing to discourage urban sprawl. This indicator is consistent with, and furthers, the comprehensive planning laws which favor orderly and balanced growth, maximizing the use of existing facilities, the renewal of blighted areas and the revitalization of downtown areas. See Section 163.3177(1) and 6(a), Florida Statutes, Section 187.201(16)(a), (16)(b)1-3, 17(a), 17(b)2, (18)(a) and (18)(b)1 and 2, Florida Statutes, and Rules 9J-5.006, 9J-5.011, and 9J-5.016, Florida Administrative Code.
Indicator 11 is an appropriate indication of urban sprawl for the same reasons addressed as to indicator 10, and is consistent with and furthers the comprehensive planning laws supporting that indicator. See also Rule 9J-5.010, Florida Administrative Code. Moreover, the encouragement of an attractive and functional mix of living, working, shopping and recreational activities in an urban area is the antithesis of urban sprawl.
Indicator 12 is an appropriate indication of urban sprawl since urban sprawl patterns often result in poor accessibility among related land uses and increase the cost of transportation between related uses. This indicator is consistent with and furthers the comprehensive planning laws which favor
orderly, balanced and efficient development, which includes timely and efficient access to services, jobs, markets and attractions. See Section 163.3177(1) and 6(a), Florida Statutes, Section 187.201(16)(b)1 and 3, and (20)(b)9, Florida Statutes, and Rule 9J5-5.006, Florida Administrative Code.
Finally, indicator 13 is an appropriate indication of urban sprawl since urban sprawl patterns often result in the loss of significant amounts of functional open spaces ("undeveloped lands suitable for passive recreation or conservation"). This indicator is consistent with and furthers the comprehensive planning laws which address orderly and balanced growth, conservation of natural resources, and the need for recreational and open space. See Section 163.3177(1) and (6)(d) and (e), Florida Statutes, Section 187.201(10) and (16)(b)2, Florida Statutes, and Rules 9J-5.006, 9J-5.013, and
9J-5.014, Florida Administrative Code.
While the indicators are reasonable in a generic sense, their existence or significance in any given case is wholly dependent upon an analysis of the specific plan or plan amendment and the local government's specific data and analysis which support it. Notably, these are the factors contemplated by the provisions of paragraphs (h)-(j) of the proposed rule which, when analyzed, presume to provide the insight necessary to render such a conclusion as to whether any indicators of urban sprawl are present.
The first step in the analysis is an evaluation of land uses, as prescribed by paragraph (h). Under such provision, a land use analysis is the focus of the review of the plan or plan amendment when determining whether it discourages urban sprawl. The rule provides a list of ten factors by which each land use type (i.e., residential, commercial, industrial, agricultural), included within the plan or amendment, will be evaluated. These factors are: extent, location, distribution, density, intensity, compatibility, suitability, functional relationship, land use combinations, and demonstrated need over the planning period.
"Extent," "distribution," "density," "intensity," "compatibility," "suitability," and "functional relationship" are defined by proposed rule 9J- 5.003(50), (39), (35), (64), (28), (131) and (55), respectively. The term "demonstrated need over the planning period" is a term described in existing Rule 9J-5.006, which requires an analysis of the amount of land needed to accommodate the projected population, including the categories of land use and their densities or intensities of use. Petitioners did not challenge any of these rule definitions.
The terms "location" and "land use combinations," while not defined in the rules, have a commonly understood meaning among professional planners. "Location" means the situs or relationship of any one land use to any other land use or geographic feature. "Land use combinations" means the different types of land uses (i.e., residential, commercial, industrial, agricultural) on a land use map.
Paragraph (i) of the proposed rule specifies the local conditions against which each of the land use factors described in paragraph (h) is to be evaluated. The paragraph lists ten features or characteristics to be used in this evaluation which, like the analysis in paragraph (h), is based on the plan or plan amendment and its underlying data and analysis. These factors are:
Size of developable area.
Projected growth rate (including population, commerce, industry, and agriculture).
Projected growth amounts (acres per land use category).
Facility availability (existing and committed).
Existing pattern of development (built and vested), including an analysis of the extent to which the existing pattern of development reflects urban sprawl.
Projected growth trends over the planning period, including the change in the overall density or intensity of urban development throughout the jurisdiction.
Costs of facilities and services, such as per capita cost over the planning period in terms of resources and energy.
Extra-jurisdictional and regional growth characteristics.
Transportation networks and use characteristics (existing and committed).
Geography, topography and various natural features of the jurisdiction.
Petitioners offered no proof at hearing directly challenging the propriety or reasonableness of any of the factors listed in this paragraph. Moreover, one would expect a plan or plan amendment, together with its data and analysis, to address these factors.
Paragraph (j) of the proposed rule sets forth a list of development controls which, to the extent they are included in a local plan, will be evaluated to determine their impact on the land uses at issue and, therefore, the ultimate issue of whether the plan or amendment discourages urban sprawl. A local government is not required to adopt any of the development controls, but if they elect to include them in their plan or plan amendment, the controls, which may mitigate or obviate an urban sprawl issue, are pertinent to the urban sprawl question. Indeed, each of the development controls is an accepted planning technique to control or discourage urban sprawl, and a professional planner should be familiar with such controls and their implications.
Viewing the provisions of paragraphs (g)-(j) as a whole, the gist of petitioners' challenge appears to be that, while the purpose of the rule is to discourage urban sprawl, the rule fails to indicate "how much sprawl is acceptable and how much sprawl is too much," that the various indicators and criteria have no established weighting, and the terms used lack definition. Under such circumstances, petitioners argue the rules are vague or vest unbridled discretion in the agency. [See Petitioners' proposed recommended order, paragraphs 27-29.] Such concerns are not however, supported by the proof.
As heretofore noted, the meaning applied to the terms used in the rules at issue is contained in other proposed rules, the existing rule, or the terms are commonly understood among professional planners. Moreover, in most cases, the terms used are identical to those employed by the Legislature in the enactment of Chapter 163, Part II, and Chapter 187, Florida Statutes, and the provisions of existing Rule 9J-5, which has been accorded special status by the Legislature under Section 163.3177(9), Florida Statutes. Under such
circumstances, these terms have been routinely applied for a significant period of time in the preparation and review of local plans, and are presumably understood by professional planners.
In concluding that the indicators and criteria are reasonable, it has not been overlooked that they do not have an established weighting, nor that professional planners could reasonably disagree in their application to a particular circumstance. As to establishing a weighting for each indicator or criteria, the variety of circumstances among local governments and their plans or proposed amendments would foreclose such an approach. As to disagreements among professional planners, such is not a failing of the rule, but the consequence of the diversity or vagary among local plans or amendments, data and analyses and local conditions. Notwithstanding, the plans or amendments, data and analyses, and local conditions provide an objective basis upon which an evaluation can be made and, if necessary, challenged and tested. Finally, as to the rule's failure to prescribe "how much sprawl is acceptable and how much sprawl is too much" the same conclusion must prevail, since it is the plan or amendment, data and analysis, and local conditions that will derive that answer and not the rule. Indeed, the benchmark adopted by the Department to "discourage the proliferation of urban sprawl" is not unreasonable under the circumstances. The common meaning of "discourage" and "proliferation" used in the Department's mandate provide a reasonable benchmark for addressing a problem that cannot be quantified. The word "discourage" means "To dissuade or deter .
. . To hamper; hinder . . . To try to prevent," and the word "proliferation" means "To increase or spread at a rapid rate." The American Heritage Dictionary, New College Edition (1979).
In reviewing plans or plan amendments as required by the Act, it is presumed that the Department's planners will exercise sound planning judgment and will conform their conduct to existent law. See e.g., Atlantic Coast Line
R. Co. v. Mack, 57 So.2d 447 (Fla. 1952). Should the Department fail to do so, or should there be a divergence of opinion among the parties or professional planners, the statutory framework provided by Section 163.3184, Florida Statutes, which establishes the procedures for adoption of comprehensive plans and plan amendments, provides a review process to test, if necessary, the sufficiency and consistency of any Departmental determination regarding urban sprawl or any other planning issue. Moreover, during the course of such review, deference is accorded the decision of the local government, not the Department.
Regarding the review process, Section 163.3184, Florida Statutes, provides for initial review of proposed comprehensive plans and plan amendments by the Department, and the rendering of an "Objections, Recommendations, and Comments Report" (ORC Report) by the Department to the local government. The local government, upon receipt of the ORC report, may then adopt or adopt with changes the proposed plan or plan amendment. If adopted, a copy of the adopted plan or plan amendment is filed with the Department, which has 45 days to review it and determine if the plan or amendment is in compliance with the Act. The Department's determination of compliance can only be based upon one or both of the following:
The state land planning agency's [Department's] written comments to the local government . . .; and
Any changes made by the local government to the comprehensive plan or plan amendment
as adopted.
Section 163.3184(8)(a), Florida Statutes.
If the Department issues a notice of intent to find the plan in compliance, any affected person is accorded an opportunity to file a petition for review pursuant to Section 120.57, Florida Statutes. "In this proceeding the local plan or plan amendment shall be determined to be in compliance if the local government's determination of compliance is fairly debatable." Section 163.3184(9)(a), Florida Statutes. Should the Department issue a notice of intent to find the comprehensive plan or plan amendment not in compliance, the notice is forwarded to the Division of Administrative Hearings (DOAH) for review pursuant to Section 120.57, Florida Statutes. In such proceeding,
. . . the local government's determination that the comprehensive plan or plan amendment is in compliance is presumed to be correct.
The local government's determination shall
be sustained unless it is shown by a prepond- erance of the evidence that the comprehensive plan or plan amendment is not in compliance. The local government's determination that elements of its plans are related to and consistent with each other shall be sustained if the determination is fairly debatable.
Section 163.3184(10)(a), Florida Statutes. In either case, the recommended order rendered by DOAH is subject to final agency action by the Department or the Administrative Commission, as appropriate, and ultimately judicial review. Sections 120.68 and 163.3184(9), (10) and (11), Florida Statutes.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Section 120.54(4), Florida Statutes.
Standing
Here, the parties have stipulated that petitioners, St. Joe Paper Company and Florida East Coast Industries, Inc., as well as their subsidiaries, and intervenors, Florida League of Cities, 1000 Friends of Florida, Department of Environmental Protection, Florida Association of Realtors, R. J. Collins, Florida Electric Power Coordinating Group and Florida Association of Counties, have standing as to the issues that remained pending at the time of hearing. Moreover, while no such stipulation was accorded intervenors Florida Land Council, Inc., Florida Farm Bureau Federation, Highland County Farm Bureau, and Claude E. Smoak, Jr., neither the Department's posthearing submittal nor that of any other party contested their standing. Under such circumstances, the standing of all parties is accepted for purposes of these proceeding and need not be specifically addressed. See, Home Builders and Contractors Association of Brevard, Inc. v Department of Community Affairs, 585 So.2d 965 (Fla. 1st DCA 1991).
The challenge to the proposed rules
Petitioners have challenged proposed rule 9J-5.003(140), which defines "urban sprawl," and proposed rule 9J-5.006(6), which establishes a process for review of plans for discouraging the proliferation of urban sprawl, on the basis
that such rules are an invalid exercise of delegated legislative authority. Petitioners further contend that the rules "violate the [due process and equal protection] provisions of the 14th Amendment of the Constitution of the United States and Article 1, Section 9, of the Constitution of the State of Florida."
To prevail in this case, the burden is upon the petitioners to demonstrate, by a preponderance of the evidence, that the proposed rules are an invalid exercise of delegated legislative authority. Humana, Inc. v. Department of Health and Rehabilitative Services, 469 So.2d 889 (Fla. 1st DCA 1985), and Agrico Chemical Co. v. Department of Environmental Regulation, 365 So.2d 759 (Fla. 1st DCA 1978).
Pertinent to this case, an invalid exercise of delegated legislative authority is defined by Section 120.52(8), Florida Statutes, as follows:
"Invalid exercise of delegated legislative authority" means action which goes beyond the powers, functions, and duties delegated by the Legislature. A proposed or existing rule is an invalid exercise of delegated legislative authority if any one or more of the following apply:
The agency has materially failed to follow the applicable rulemaking procedures set forth in s. 120.54;
* * *
The rule enlarges, modifies, or contravenes the specific provisions of law implemented, citation to which is required by s. 120.54(7);
The rule is vague, fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency; or
The rule is arbitrary or capricious.
The challenge to the economic impact statement
Among the grounds raised by petitioners for invalidating the proposed rules was their contention that the Department materially failed to follow the applicable rulemaking procedures set forth in Section 120.54, Florida Statutes, by failing to provide a detailed economic impact statement as required by Section 120.54(2)(c), Florida Statutes. This issue was, however, resolved adverse to petitioners when, on August 26, 1993, the Department's motion for partial summary final order was granted based on the undisputed fact that petitioners had not filed a request for the preparation of an economic impact statement with the agency.
Pertinent to that issue, Section 120.54(2)(d), Florida Statutes, was amended by Chapter 92-166, Laws of Florida, effective April 9, 1992, to provide:
. . . No person shall have standing to
challenge an agency rule, based upon an economic impact statement or lack thereof, unless that person requested preparation of an economic impact statement under subparagraph (2)(b)2 and provided the agency with information sufficient to make the agency aware of specific concerns regarding the
economic impact of the proposed rule, by either participation in a public workshop, public hearing, or by submission of written comments, regarding
the rule.
The provisions of subparagraph 120.54(2)(b), were also amended to provide:
(b) Prior to the adoption, amendment, or repeal of any rule not described in subsection (9), an agency may provide information on its proposed action by preparing an economic impact statement, and must prepare an economic impact statement if:
The agency determines that the proposed action would result in a substantial increase in costs or prices paid by consumers, individual industries, or state or local government agencies, or would result in significant adverse effects on competition, employment, investment, productivity, or innovation, and alternative approaches to the regulatory objective exist and are not precluded by law; or
Within 14 days after the date of publication of the notice provided pursuant to paragraph (1)(c) or, if no notice of rule development is provided, within 21 days after the notice required by paragraphs (1)(a) and (b), a written request for preparation of an economic impact statement is filed with the appropriate agency by the Governor, a body corporate and politic, at least 100 people signing a
request, or an organization representing at least 100 persons, or any domestic nonprofit corporation or association.
In this case, the Department first published notice of the proposed rules on October 2, 1992, in the Florida Administrative Weekly, and petitioners filed their initial petitions for an administrative determination of the invalidity of the proposed rules on October 23, 1992. At no time, however, did petitioners file a request for the preparation of an economic impact statement with the agency. Accordingly, under the provisions of Section 120.54(2)(d), Florida Statutes, petitioners lack standing to challenge the proposed rules "based upon [deficiencies in] an economic impact statement [that was prepared] or lack thereof."
The contention that the proposed rules enlarge, modify or contravene the specific provisions of law implemented.
The next basis advanced by petitioners for invalidating the proposed rules is their contention that the rules enlarge, modify or contravene the specific provisions of law implemented.
Concerning this challenge, it cannot be gainsaid that an administrative rule cannot enlarge, modify or contravene the provisions of a statute, and a rule which purports to do so constitutes an invalid exercise of delegated legislative authority. Section 120.52(8), Florida Statutes, and Cataract Surgery Center v. Health Care Cost Containment Board, 581 So.2d 1359 (Fla. 1st DCA 1991). However, where the requirements of the rule are appropriate to the ends specified in the legislative act, it does not enlarge,
modify or contravene the provisions of law implemented. See, e.g., Florida League of Cities, Inc. v. Department of Environmental Regulation, 603 So.2d 1363 (Fla. 1st DCA 1992); Marine Fisheries Commission v. Organized Fishermen of Florida, 503 So.2d 935 (Fla. 1st DCA 1987); Department of Business Regulation v. Salvation Limited, Inc., 452 So.2d 65 (Fla. 1st DCA 1984); and Department of Insurance v. Insurance Services Office, 434 So.2d 908 (Fla. 1st DCA 1983).
In considering whether a proposed rule enlarges, modifies or contravenes a statute, an agency's construction of the statute it administers is entitled to great deference and should not be overturned unless clearly erroneous. Department of Environmental Regulation v. Goldring, 477 So.2d 532 (Fla. 1985); All Seasons Resorts, Inc. v. Division of Land Sales, Condominiums and Mobile Homes, 455 So.2d 544 (Fla. 1st DCA 1984); and San Souci v. Division of Land Sales and Condominiums, 421 So.2d 623 (Fla. 1st DCA 1982). Moreover, the agency's interpretation does not have to be the only one or the most desirable one; it is enough if it is permissible. Florida Power Corp. v. Department of Environmental Regulation, 431 So.2d 684 (Fla. 1st DCA 1983).
Here, petitioners do not challenge, and in fact concede, the Department's statutory authority to promulgate rules which define or discourage urban sprawl. 2/ Accordingly, to succeed here, it is incumbent upon petitioners to demonstrate that, although authorized to promulgate rules affecting such matters, the language of the specific rules the Department elected to propose somehow enlarges, modifies or contravenes the law implemented. This, petitioners have failed to demonstrate.
In fact, petitioners have cited no specific provision of the laws implemented which they contend the proposed rules offend. Rather, the crux of petitioners' complaint appears to be premised on their observation that the term "urban sprawl" does not appear within Chapter 163, Part II, or Chapter 187, and therefore the proposed rules are offensive. Given petitioners' concession regarding the Department's authority to address urban sprawl, such argument is not persuasive. Moreover, a reading of the laws implemented demonstrates, consistent with the Department's construction, that consideration of urban sprawl in comprehensive planning, although the express term is not used, is subsumed within the myriad of goals, objectives and policies addressed by the Act, as well as the Department's obligation under Section 163.3177(9), Florida Statutes, to adopt minimum criteria for the review and determination of compliance of local government comprehensive plan elements for compliance with the Act. See, e.g., Home Builders and Contractors Association of Brevard County, Inc. v Department of Community Affairs, 585 So.2d 965 (Fla. 1st DCA 1991). Under such circumstances, petitioners have failed to demonstrate that the proposed rules enlarge, modify or contravene the provisions of law implemented.
The contention that the proposed rules are vague, fail to establish adequate standards for agency decisions, vest unbridled discretion in the agency, or are arbitrary or capricious.
Petitioners' next challenge to the validity of the proposed rules is based on their contention that such rules are vague, fail to establish adequate standards for agency decisions, vest unbridled discretion in the agency, or are arbitrary or capricious.
A rule is vague or fails to establish adequate standards for agency decisions when its terms are so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application. State v.
Cumming, 365 So.2d 153 (Fla. 1978). A rule vests unbridled discretion in an agency when it fails to establish adequate standards and reserves to the agency the arbitrary power to determine private rights. Barrow v. Holland, 125 So.2d 749 (Fla. 1960). Finally, arbitrary and capricious actions are defined in Agrico Chemical Co. v. Department of Environmental Regulation, 365 So.2d 759, 763, as follows:
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.
And, more recently, the court in Dravo Basic Materials Company, Inc. v. State, Department of Transportation, 602 So.2d 632, 634 (Fla. 2d DCA 1992), observed:
Indeed, Agrico even suggests that an administrative decision is not arbitrary unless it is "despotic"
. . . Webster's New World Dictionary suggests that an arbitrary decision is one that is "whimsical
. . ." Likewise, "capricious" is defined in Agrico as "irrational." Such definitions add color and flavor to our traditionally dry legal
vocabulary, but do not assist an objective analysis. If an administrative decision is justifiable under any analysis that a reasonable person would use to reach a decision of similar importance, it would seem that the decision is neither arbitrary nor capricious. Cf. Cankaris v. Cankaris,
382 So.2d 1197, 1203 (Fla. 1980) ("The trial
court's discretionary power is subject only to the test of reasonableness, but that test requires a determination of whether there is logic and justification.") (Emphasis added)
Where as here, proposed rulemaking is challenged as being arbitrary and capricious, the question is not whether the agency has made the best choice, but only whether the agency has made a reasonable choice. The Department's decision in this case meets the reasonableness standards summarized in Dravo, supra. Indeed, as heretofore noted in the findings of fact, the definition of "urban Sprawl," proposed by rule 9J-5.003(140), is founded on rational indicators, and expresses a definition consistent with accepted practice. That urban sprawl could be defined differently, or the Department could have chosen different words to define urban sprawl, does not render the definition proposed by the Department arbitrary or capricious.
In like manner, the process the Department proposed, by rule 9J- 5.006(6), for the review of plans or amendments for discouraging the proliferation of urban sprawl is comprised of rational indicators of urban sprawl, as well as logical provisions of plan or plan amendments and local conditions to assess the presence of such indicators. Under such circumstances, the Department's decision to review plans in the manner proposed by the rule also meets the reasonableness standard summarized in Dravo, supra.
Finally, the proposed rules are not so vague that men of common intelligence must necessarily guess at their meaning and differ as to their application, nor do they fail to establish adequate standards and reserve to the agency the arbitrary power to determine private rights, such that it could be
concluded that the rules are vague, fail to establish adequate standards for agency decisions, or vest unbridled discretion in the agency.
As heretofore noted in the findings of fact, the terminology employed in the proposed rules is consistent with existent law, defined by proposed and existent rules, or commonly understood among professional planners, and the process proposed for the review of plans or amendments for discouraging the proliferation of urban sprawl was not shown to be unreasonable or lacking a reasonable basis in fact. While an analysis in accordance with the rule may require the exercise of professional planning judgment, it is founded on objective criteria established by the rule and objective data supplied by the plan or amendment and its specific data and analysis. While professional planners may legitimately disagree on an issue at any give time, such is not a deficiency of the rule, but the complexity or vagarity of the problem presented. Should reasonable minds tend to disagree, the issue is subject to review under the provisions of Section 120.57(1), Florida Statutes. Sections 163.3184(9) and (10), Florida Statutes.
The challenge to the constitutionality of the proposed rules
Petitioners' final challenge to the validity of the proposed rules is their contention that the rules "violate the [due process and equal protection] provisions of the 14th Amendment of the Constitution of the United States and Article 1, Section 9, of the Constitution of the State of Florida." The premise for such contention is petitioners' assertion that the rules are so vague that men of common intelligence must necessarily guess at their meaning and differ as to their application, and because of such vagueness or an absence of standards the rules cannot be applied consistently. [Petitioners' Proposed Recommended (sic) Order, pages 29-34].
That a hearing officer in the exercise of quasi-judicial authority in furtherance of the rulemaking process, can address the constitutionality of a proposed rule has been recognized by the courts. Department of Environmental Regulation v. Leon County, 344 So.2d 297 (Fla. 1st DCA 1977). See Also, Florida Education Association/United v. Public Employees Relations Commission, 346 So.2d
551 (Fla. 1st DCA 1977). However, where, as here, petitioners challenge the validity of the rules based on due process (vagueness) grounds and equal protection grounds, the same standards apply to test the validity of the proposed rules under the provisions of Section 128.52(8), Florida Statutes, as would be applied to test their validity on constitutional grounds. See, Southeastern Fisheries Association, Inc. v. Department of Natural Resources, 453 So.2d 1351 (Fla. 1984), and Florida League of Cities, Inc. v. Department of Environmental Regulation, 603 So.2d 1363 (Fla. 1st DCA 1992). Accordingly, it is unnecessary to address the constitutional issues raised by petitioners since the implications of such failings, if any, have heretofore been addressed.
CONCLUSION
Based on the foregoing findings of fact and conclusions of law, it is ORDERED that petitioners have failed to demonstrate that proposed rules 9J-
5.003(140) and 9J-5.006(6) are an invalid exercise of delegated legislative authority, and their petitions are hereby denied.
DONE AND ORDERED in Tallahassee, Leon County, Florida, this 18th day of February 1994.
WILLIAM J. KENDRICK
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 18th day of February 1994.
ENDNOTES
1/ Following the filing of their petition for an administrative determination of the invalidity of the proposed rules on October 23, 1992, petitioners' counsel attended a public hearing on the rules. At that hearing, which was held October 29, 1992, petitioners' counsel made a few comments about the rules but none concerned their economic impact. Subsequently, petitioners filed a memorandum in this case, dated November 5, 1992, which reiterated their contention that the proposed rules were invalid for the agency's failure to prepare an economic impact statement, and, on February 11, 1993, filed an amended petition to such effect.
Whether the information contained in the initial petition, memorandum, or amended petition was adequate to provide "the agency with information sufficient to make the agency aware of specific concerns regarding the impact of the proposed rule," as required by Section 120.54(2)(d), Florida Statutes, is not addressed. Also not addressed is whether such information must accompany a timely request that the agency prepare an economic impact statement or may be provided after the 14-day period. See, Sections 120.54(2)(b)2 and (d), Florida Statutes. Rather, dispositive of this issue, as addressed in the conclusions of law, is the undisputed fact that petitioners never requested the preparation of an economic impact statement, and therefore had no standing to challenge the proposed rules based upon any inadequacies of an economic impact statement that may have been prepared or the lack of an economic impact statement.
2/ See prehearing stipulation which does not raise, as an issue, the contention that the agency exceeded its grant of rulemaking authority in promulgating the proposed rules, and the transcript of hearing at pages 621-623, 782 and 783.
APPENDIX
Petitioners' proposed findings of fact are addressed as follows:
1 & 2. Addressed in paragraph 1, otherwise not supported by the proof.
3. Addressed in paragraph 2.
4-9. To the extent pertinent, addressed in paragraph 3.
10. Addressed in paragraph 19.
11 & 12. Addressed in paragraph 15, otherwise rejected as argument or not a finding of fact.
Addressed in paragraphs 22, 23, and 42-47.
Addressed in paragraphs 6-11, 20 and 60, otherwise contrary to the proof.
15-20. Addressed in paragraphs 20-23, otherwise rejected as argument, recitation of testimony or subordinate.
21. Addressed in paragraph 25, otherwise rejected as recitation of testimony.
22 & 23. Addressed in paragraphs 26-36 & 41, otherwise rejected as recitation of testimony and a mischaracterization of the totality of the proof.
24 & 25. Addressed in paragraphs 26-36 and 66, otherwise rejected as recitation of testimony or contrary to the facts as found.
Rejected as contrary to the proof. See paragraphs 37-39.
Addressed in paragraphs 40 and 45, otherwise rejected as argumentative.
Addressed in paragraphs 44-47, otherwise rejected as contrary to the facts as found. It is also observed, that under the Act, the plan or amendment is presumably supported by the local government's data and analysis. If necessary to support an amendment, it is certainly incumbent on the local government to provide new data and analysis.
Addressed in paragraph 40, otherwise rejected as recitation of testimony or argument.
30 & 31. Addressed in paragraphs 42-44, otherwise rejected argument or contrary to the facts as found.
32-37. Addressed in paragraphs 42-47, otherwise rejected as argument or contrary to the facts as found.
38. Rejected as not a position advanced by the Department. Also contains matters which are repetitious and have previously been addressed.
39-41. Rejected as recitation of testimony and argument. Also repetitious and previously addressed.
42. Rejected as recitation of testimony and argument. Also repetitious and previously addressed.
The proposed findings of fact filed by the Department, 1000 Friends of Florida, and Department of Environmental Protection are addressed as follows:
To the extent necessary, addressed in paragraph 4, otherwise unnecessary detail.
Addressed in paragraphs 8 and 9.
Addressed in paragraphs 10, 11, 13 and 14.
Addressed in paragraph 59 and endnote 2.
Addressed in paragraphs 15 and 17.
6 & 7. Addressed in paragraph 18.
Addressed in paragraph 44.
Addressed in paragraphs 46 and 47. 10-15. Addressed in paragraphs 20-23.
16. Addressed in paragraph 16.
17-46. Addressed in paragraphs 25-36.
47-56. Addressed in paragraphs 37-39.
Addressed in paragraph 40.
Addressed in paragraph 41.
59-63. Accepted, but unnecessary detail or not at issue. 64-66. Accepted, but unnecessary detail or not at issue.
These parties have also included within their proposed final order what they have labeled as "Ultimate Findings of Fact." These proposals, numbered 1- 16, are repetitious of the findings previously proposed and addressed.
The proposed findings of fact filed on behalf of the Florida League of Cities are addressed as follows:
1. Addressed in paragraph 24.
2-14. Addressed in paragraphs 25-36.
Addressed in paragraphs 37-39.
Addressed in paragraph 40.
Addressed in paragraph 41.
Addressed in paragraph 40.
19-21. Addressed in paragraphs 42-44.
The proposed recommended (sic) order filed on behalf of Florida Association of Realtors and R. J. Collins does not contain any proposed findings of fact.
Its standing proposal has, however, been addressed in paragraph 3.
COPIES FURNISHED:
Fred H. Kent, Jr., Esquire Thomas F. McMorrow, Esquire
Kent, Hayden, Faccilo, & McMorrow Suite 1330
200 West Forsyth Street Jacksonville, Florida 32202
Samuel J. Ard, Esquire Highpoint Center, Suite 900
106 East College Avenue Tallahassee, Florida 32302
Karen Brodeen, Esquire David J. Russ, Esquire Andrea England, Esquire Assistant General Counsel
Department of Community Affairs 2740 Centerview Drive
Tallahassee, Florida 32399-2100
Robert C. Apgar, Esquire David A. Theriague, Esquire Apgar & Theriague
820 East Park Avenue Tallahassee, Florida 32301
Jane C. Hayman, Esquire Deputy General Counsel Florida League of Cities
201 Wet Park Avenue Tallahassee, Florida 32301
Richard Grosso, Esquire
Rebecca Grace, qualified representative 1000 Friends of Florida
310 West College Avenue Tallahassee, Florida 32314-5948
Betsy Hewitt, Esquire Assistant General Counsel
Department of Environmental Protection Twin Towers Office Building
2600 Blair Stone Road Tallahassee, Florida 32301
Wade Hopping, Esquire Elizabeth C. Bowman, Esquire Hopping, Boyd, Green & Sams
123 South Calhoun Street Tallahassee, Florida 32301
William D. Preston, Esquire Hopping, Boyd, Green & Sams
123 South Calhoun Street Tallahassee, Florida 32301
Thomas R. Moore, Esquire Roberts & Egan
217 South Adams Street Tallahassee, Florida 32301
Michael Wm. Morell, Esquire Attorney at Law
310 West College Avenue Tallahassee, Florida 32301
Linda Loomis Shelley, Secretary Department of Community Affairs 2740 Centerview Drive
Tallahassee, Florida 32399-2100
Dan Stengle, Esquire General Counsel
Department of Community Affairs 2740 Centerview Drive
Tallahassee, Florida 32399-2100
Carroll Webb, Executive Director Administrative Procedures Committee
120 Holland Building Tallahassee, Florida 32399-1300
Liz Cloud, Chief
Bureau of Administrative Code Department of State
The Elliott Building Tallahassee, Florida 32399-0250
NOTICE OF RIGHT TO JUDICIAL REVIEW
A party who is adversely affected by this final order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules Of Appellate Procedure. Such proceedings are commenced by filing one copy of a notice of appeal with the Agency Clerk Of The
Division Of Administrative Hearings and a second copy, accompanied by filing fees prescribed by law, with the District Court Of Appeal, First District, or with the District Court Of Appeal in the appellate district where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed.
================================================================= DISTRICT COURT OPINION
=================================================================
IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA
FLORIDA EAST COAST INDUSTRIES NOT FINAL UNTIL TIME EXPIRES TO INC., et al., FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED.
Appellants,
v. CASE NO. 94-873 & 94-874
DOAH CASE NO. 92-6325RP
STATE OF FLORIDA, DEPARTMENT OF COMMUNITY AFFAIRS,
Appellee.
/ Opinion filed July 2, 1996.
An appeal from an order of the Division of Administrative Hearings.
Fred H. Kent, Jr. and Thomas F. McMorrow of Kent, Hayden, Facciolo & McMorrow, P.A., Jacksonville, for Appellants.
Davis J. Russ, Assistant General Counsel, Department of Community Affairs, Tallahassee, for Appellee.
SHIVERS, Senior Judge.
Florida East Coast Industries, Inc. and its wholly owned subsidiaries (FECI) and St. Joe Paper Co. and its wholly owned subsidiaries (St. Joe) appeal an order of the Division of Administrative Hearings (DOAH) finding that the appellants have failed to demonstrate that proposed rules 9J-5.003(140) and 9J- 5.006(6), Florida Administrative Code, are each an invalid exercise of delegated legislative authority. We affirm in part and reverse in part.
The Department of Community Affairs (DCA) published proposed amendments to Chapter 9J-5, Florida Administrative Code, in the Florida Administrative Weekly (FAW) on October 2, 1992. The purpose of the amendments was to "enunciate and clarify certain minimum criteria which shall be used to determine whether or not a comprehensive plan or plan amendment is in compliance." 18 Fla. Admin.
Weekly 5793-94 (October 2, 1992). On October 23, 1992, both FECI and St. Joe separately file petitions challenging proposed rules 9J-5.003(140) and 9J- 5.006(6) on the basis that each was an invalid exercise of delegated legislative authority in that they were vague, failed to establish adequate standards, and vested unbridled discretion in the DCA, and on the sufficiency of the economic impact statement (EIS).
On August 2, 1993, the DCA and a group of intervenors filed a Motion for Partial Summary Final Order seeking to dismiss the challenge to the EIS on the ground that the petitioners lacked standing under section 120.54(2)(d), Florida Statutes, because they failed to request the preparation of an EIS or advise the DCA of EIS-related concerns. William Kendrick, the DOAH Hearing Officer (H.O.) presiding over the matter, granted the motion on August 26, 1993. A hearing was held on the merits of the invalid exercise challenge on September 8-10 and 13- 15, 1993. On February 18, 1994, the H.O. issued his Final Order, concluding that petitioners failed to demonstrate that the proposed rules were an invalid exercise of delegated legislative authority.
FECI and St. Joe appeal this ruling, arguing (1) their challenge to the EIS should not have been dismissed even though they did not request preparation of an EIS because an EIS had already been prepared when the proposed rules were published; (2) the proposed rules should have been invalidated because they cannot be understood by men of common intelligence; and (3) the proposed rules should have been invalidated because they fail to establish adequate standards and are so vague that they cannot be utilized by those to whom they apply. We agree that appellants challenge to the EIS should not have been dismissed for lack of standing and reverse and remand, but otherwise affirm.
Turning first to the EIS issue, section 120.54(2)(d), Florida Statutes (Supp. 1992), provides, in pertinent part:
No person shall have standing to challenge an agency rule, based upon an economic impact statement or lack thereof, unless that person requested preparation of an
economic impact statement under subparagraph (2)(b)2. and provided the agency with information sufficient to make the agency aware of specific concerns regarding the economic impact of the proposed rule, by either participation in a public workshop, public hearing, or by submission of written comments, regarding the rule. 1/
The announcement of proposed rules published by the DCA on October 2, 1992 included a summary of the estimated economic impact of the proposed rules, and listed John Barker at the Bureau of Local Planning as the person to be contacted regarding the economic statement. 18 Fla. Admin. Weekly 5794 (October 2, 1992). After contacting Mr. Barker and requesting a copy of the EIS, FECI and St. Joe received a copy of the EIS on October 8, 1992. They then included in their October 23, 1992 petitions the issues of whether the DCA had prepared an EIS in compliance with section 120.54(2)(6) that accurately and sufficiently analyzed the economic impact of the proposed changes on the public and the regulated community, and whether the DCA had considered the rules' impact on small businesses and the method for reducing that impact. FECI and St. Joe's concerns regarding the EIS were also specifically listed in their petition as ultimate facts entitling them to relief. In their petitions, Petitioners again stated their concern for the rules' impact on small businesses and then pointed out problems with particular portions of the EIS. FECI also submitted a Memorandum to DOAH on November 6, 1992, in which it quoted the portion of the EIS it found
deficient and noted that the EIS failed to meet the requirements of section 120.54(2)(b) . We find that these actions were sufficient to fulfill the standing requirements of section 120.54(2)(d). Appellants' request for a copy of the existing EIS constituted a request for the preparation of an EIS under section 120.54(2)(b)2., and the EIS-related information contained within their petitions and memoranda was sufficient to put the DCA on notice of their specific concerns regarding the economic impact of the rule. Therefore, we remand to the Hearing Officer to consider the merits of Appellants' argument as to the sufficiency of the EIS.
We turn next to Appellants' argument that the proposed rules fail to establish adequate standards and are vague, thus vesting the Department with unbridled discretion in reviewing plans. It is a primary precept of constitutional law that "The Legislature may not delegate the power to enact a law, to declare what a law shall be, or to exercise an unrestricted discretion in applying a law." Lewis v. Florida State Bd. of Health, 143 So.2d 867, 875 (Fla. 1st DCA 1962), cert. denied, 149 So.2d 41 (Fla. 1963). Although the Legislature may authorize an administrative agency to adopt rules and regulations to enforce a particular law, the rules must fall within fixed, valid limits and must implement the law only within its express general purpose. Id.; see also Barrow v. Holland, 125 So.2d 749, 752 (Fla. 1960)(the constitution requires that agency rules include standards to guide regulated persons or entities in complying with the rule and to govern the agency in applying it).
Accordingly, section 120.52(8)(d), Florida Statutes, provides that a rule that is vague, fails to establish adequate standards for agency decision, or vests unbridled discretion in the agency constitutes an invalid exercise of delegated legislative authority
In rejecting this argument, the H.O. stated:
While an analysis in accordance with the rule may require the exercise of professional planning judgment, it is founded on objective criteria established by the rule and objective data supplied by the plan or amendment and its specific data and analysis. While professional planners may legitimately disagree on an issue at any give (sic) time, such is not a deficiency of the rule, but the complexity or vulgarity of the problem presented. Should reasonable minds tend to disagree, the issue is subject to review under the provisions of Section 120.57(1), Florida Statutes. Sections 163.3184(9) and (10), Florida Statutes.
In his findings of fact, the H.O. also stated:
In concluding that the indicators and criteria are reasonable, it has not been overlooked that they do not have an established weighting, nor that professional planners could reasonably disagree in their application to a particular circumstance. As to establishing a weighting for each indicator or criteria, the variety of circumstances among local governments and their plans of proposed amendment would foreclose such an approach. As to disagreements among professional planners, such is not a failing of the rule, but the consequence of the diversity or vagary among local plans or amendments,
data and analyses and local conditions.
There is competent substantial evidence to support the H.O.'s finding that the proposed rules are not vague and do not vest the Department with unbridled discretion. Thomas Pelham, former secretary of the Department of Community Affairs, testified at the hearing that determining whether a plan discourages urban sprawl was so complex as to make it impossible to create a more specific rule. He stated that the determination of whether a plan fails to discourage urban sprawl does not lend itself to mathematical precision as water quality would. For instance, in determining whether a plan is not in compliance because it includes an area of high density, the planner must look at many factors included in the plan and make an independent judgment. Robert Pennock, Chief of the Department's Bureau of Local Planning, also testified that the rules' definition of urban sprawl does not include a specific number of units per acre because it is impossible to develop a definition that would accurately apply to all Florida counties. Each community is different and what constitutes "low density" in Dade County, for example, would not make sense if applied to Liberty County. According to Pennock, it would be impossible to write a rule that covered every place in Florida, or to develop a rule that would work like a mathematical equation for urban sprawl. Mr. Pennock was unable to describe a step-by-step approach for how Rule 9J-5.006(6) would be applied because the factors listed in subsections (g), (h), and (i) are interwoven and complicated. Maria Abadal, the Department's plan review administrator, also testified that the factors listed in Rule 9J-5.006(6) could not be applied in a mathematical manner, but must be evaluated within the entire context of the plan being reviewed. When asked whether there was a specific policy or agreement as to certain terms used within the rules, Ms. Abadal stated that although many of the terms are not defined, a number of final orders discussing the relevant terms existed.
Florida courts have previously recognized that executive agencies may exercise some discretion without breaching their authority. "The exercise of some authority, discretion, or judgment may be incident or necessary to the performance of administrative or ministerial duties; but such authority, discretion, or judgment is subject to judicial review; and it is not among the powers of government that the Constitution separates into departments." Florida State Bd. of Architecture v. Wasserman, 377 So.2d 653, 656 (Fla. 1979)(citing Bailey v. Van Pelt, 78 Fla. 337, 350, 82 So. 789, 793 (1919)). Although the legislature must establish adequate standards and guidelines in delegating duties to an agency, it may not always be practical or desirable to draft detailed or specific legislation. State Dep't of Citrus v. Griffin, 239 So.2d 577, 581 (Fla. 1970); Microtel, Inc. v. Florida Pub. Serv. Comm'n, 464 So.2d 1189, 1191 (Fla. 1985) . In that situation, the legislature may transfer subordinate functions to an agency and allow it to administer legislative policy since the agency possesses the expertise and flexibility to deal with complex and fluid conditions. Microtel Inc., 464 So.2d at 1191.
This Court recently applied these concepts in Ameraquatic Inc. v. State Dep't of Natural Resources, 651 So.2d 114 (Fla. 1st DCA 1995). There, appellants challenged proposed rules 16C- 20.0045 (2) and 16C-20.005(1)(a)5, among others, arguing that they reserved unbridled discretion in the Department to define and weigh criteria regulating aquatic weed control activities in issuing permits. The court found competent substantial evidence to "support the hearing officer's conclusion that the assignment of specific weight to each criterion [in Rule 16C-20.0045(2)] would be impractical." Id. at 10. A Department administrator had testified that the issuance of permits was site specific and that it was not possible to define the criteria more narrowly because of the many variables involved. Id. at 11. The court used a similar
rationale to reject appellants' argument that the criteria in Rule 16C- 20.005 (1)(a)5 should be assigned a weight to be used in determining whether a permit should be issued. Id. at 13.
Indeed, we note that the Department appears to have exerted its best efforts in promulgating rules in an area as complicated as urban sprawl. In affirming an order refusing to invalidate DCA's nonrule policies on urban sprawl because they were not promulgated as rules, we noted with approval the Hearing Officer's statement that the myriad of details involved in applying the urban sprawl rules to an individual plan may preclude rulemaking. Home Builders & Contractors Assoc. v. Department of Community Affairs, 585 So.2d 965, 969 (Fla. 1st DCA 1991) . Thus, this Court previously recognized that promulgating these rules would be a complicated matter that may not lend itself to precise rules that may be accurately applied to every plan reviewed by the Department.
Finally, we note that the DCA plan reviewers are not given absolute discretion in determining whether a plan is in compliance with the urban sprawl rules. Mr. Pennock and others emphasized that the Department planners do not apply the rules individually and issue a report on behalf of the Department summarizing their conclusions. Any report issued by the Department is first reviewed by its senior planners to ensure that the planner's recommendation is consistent with Department policy. Before a final decision is made on a local government's plan or amendment, the DCA sends a report to the local government that lists its objections, recommendations and comments, which gives the local government and other affected parties an opportunity to consult with the Department and voice their concerns over any mistakes that may have been made.
Lastly, Appellants argue the proposed rules should be invalidated because laymen working for the local governments for whom the rules were promulgated are unable to understand them. In support of their argument, Appellants cite State
v. Cumming, 365 So.2d 153, 155-56 (Fla. 1978), where the court held invalid rules promulgated for the issuance of permits because they were based on vague and overboard standards, and stated: "It is the failure of the Commission to implement through its rules the statute's guidelines that has left the statute to require `the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application
Id. at 156 (quoting State v. Wershow, 343 So.2d 605 (Fla. 1977)).
Appellants' argument must fail. Cumming does not mandate that the proposed rules be declared invalid as vague simply because they cannot be understood by "men of common intelligence." Cummings dealt with a penal statute and, while this test may be appropriate in some administrative contexts, it is inappropriate here. Although it is true that "[t]he requirements of due process are not fulfilled unless the language of a penal statute is sufficiently definite to apprise those to whom it applies of the conduct it prohibits," Bertens v. Stewart, 453 So.2d 92, 93 (Fla. 2d DCA 1984), the rule involved here is not penal. A local government will not be subject to punishment, defined as "[a]ny fine, penalty, or confinement inflicted upon a person by the authority of the law . . . ," if its plan is found not in compliance with the urban sprawl rules. Black's Law Dictionary 1234 (6th ed. 1990). In other words, the fundamental concern of the vagueness doctrine is not threatened here because the consequences of being found out of compliance with the challenged rules is not penal. State v. Rawlins, 623 So.2d 598, 600 (Fla. 5th DCA 1993)("The fundamental concern of the vagueness doctrine is that people be placed on notice of what conduct is illegal.").
Further, courts have held that when words used in a statute are not defined, they must be construed according to their plain and ordinary meaning, or according to the meaning assigned to the terms by the class of persons within the purview of the statute. State v. Hoyt, 609 So.2d 744 (Fla. 1st DCA 1992).
These concepts were applied in State v. Hagan, 387 So.2d 943, 946 (Fla. 1980), where the court reversed a trial court's holding that a special law regulating trawling in Charlotte Harbor was vague because it did not define the terms "trawl net" and "trawling operation" and stated: "A statute may satisfy due process requirements even though it contains general terms and does not furnish detailed plans and specifications of the act or conduct proscribed."
Based on the foregoing, the Final Order is REVERSED and REMANDED for a hearing on the merits of Appellants' challenge as to the sufficiency of the EIS, but is AFFIRMED in all other respects.
BARFIELD, C.J. and KAHN, J., CONCUR.
ENDNOTE
1/ 1992 Fla. Laws ch. 92-166, 4, at 1675.
MANDATE
From
DISTRICT COURT OF APPEAL OF FLORIDA FIRST DISTRICT
To the Honorable William J. Kendrick, Hearing Officer
Division of Administrative Hearings WHEREAS, in that certain cause filed in this Court styled:
FLORIDA EAST COAST INDUSTRIES, INC.,
and its subsidiaries Florida East Coast Railway Company, and Gran Central Corporation,
and CASE NO. 94-873
YOUR CASE NO. 92-6325RP
FLORIDA ASSOCIATION OF COUNTIES, INC., and FLORIDA ELECTRIC
POWER COORDINATING GROUP, INC.,
vs.
STATE OF FLORIDA, DEPARTMENT OF COMMUNITY AFFAIRS,
and
FLORIDA LEAGUE OF CITIES, INC., et al.
The attached opinion was rendered on July 2, 1996.
YOU ARE HEREBY COMMANDED that further proceedings be had in accordance with said opinion, the rules of this Court and the laws of the State of Florida.
WITNESS the Honorable Edward T. Barfield
Chief Judge of the District Court of Appeal of Florida, First District and the Seal of said court at Tallahassee, the Capitol, on this 18th day of July, 1996.
(seal) Jon S. Wheeler
Clerk, District Court of Appeal of Florida, First District
MANDATE
From
DISTRICT COURT OF APPEAL OF FLORIDA FIRST DISTRICT
To the Honorable William J. Kendrick, Hearing Officer
Division of Administrative Hearings WHEREAS, in that certain cause filed in this Court styled:
FLORIDA EAST COAST INDUSTRIES, INC.,
and its subsidiaries St. Joe Communication, Inc., Land and Development Company, Apalachicola Northern Railroad Company,
St. Joe Forest Products Company, St. Joe Industries, and St. Joe Container Company,
and CASE NO. 94-874
YOUR CASE NO. 92-6328RP
FLORIDA ASSOCIATION OF COUNTIES, INC., and FLORIDA ELECTRIC
POWER COORDINATING GROUP, INC.,
vs.
STATE OF FLORIDA, DEPARTMENT OF COMMUNITY AFFAIRS,
and
FLORIDA LEAGUE OF CITIES, INC., et al.
The attached opinion was rendered on July 2, 1996.
YOU ARE HEREBY COMMANDED that further proceedings be had in accordance with said opinion, the rules of this Court and the laws of the State of Florida.
WITNESS the Honorable Edward T. Barfield
Chief Judge of the District Court of Appeal of Florida, First District and the Seal of said court at Tallahassee, the Capitol, on this 18th day of July, 1996.
(seal) Jon S. Wheeler
Clerk, District Court of Appeal of Florida, First District
| Issue Date | Proceedings |
|---|---|
| Dec. 12, 1997 | Final Order Closing Files sent out. CASE CLOSED. |
| Dec. 05, 1996 | (Petitioners) Amended Notice to Withdraw Challenge to the Economic Impact Statement filed. |
| Nov. 25, 1996 | (Petitioners) Notice to Withdraw Challenge to the Economic Impact Statement filed. |
| Nov. 12, 1996 | (Respondent) (2) Notice of Taking Deposition filed. |
| Nov. 07, 1996 | Notice of Service of DCA`s Answers to Interrogatories to St. Joe Paper Company and Florida East Coast Industries filed. |
| Nov. 04, 1996 | Amendment to Petitioners` Witness List filed. |
| Nov. 04, 1996 | Second Amendment to Petitioners` Witness List; Petitioners` Amendment and Supplement to Its Document List filed. |
| Oct. 31, 1996 | DCA`s Witness and Exhibit Lists filed. |
| Oct. 28, 1996 | Petitioners` Response to DCA`s Request for Admissions filed. |
| Oct. 22, 1996 | DCA`s Request for Admissions to St. Joe Paper Company and Florida East Coast Industries filed. |
| Oct. 16, 1996 | Notice of Service of Department of Community Affairs` First Set of Interrogatories to Florida East Coast Industries, Inc.; Department of Community Affairs First Set of Interrogatories to Florida East Coast Industries Inc. (filed via facsimile). |
| Oct. 16, 1996 | Notice of Service of Department of Community Affairs First Set of Interrogatories to SDt. Joe Paper Company; Department of Community Affairs First Set of Interrogatories to St. Joe Paper Company (filed via facsimile). |
| Oct. 10, 1996 | Notice of Propounding Petitioners Florida East Coast Industries, Inc., and St. Joe Paper Company`s Interrogatories to the Department of Community Affairs filed. |
| Sep. 24, 1996 | Prehearing Order sent out. |
| Sep. 24, 1996 | Order Denying Motion to Abate and Scheduling Formal Hearing sent out. (hearing reset for Dec. 17-19, 1996; 9:00am; Tallahassee) |
| Sep. 23, 1996 | Notice of Change of Address for Co-Counsel for Intervenors Florida Land Council, Inc., Florida Farm Bureau Federation, Highlands County Farm Bureau and Claude, Smoak, Jr. (filed via facsimile). |
| Sep. 19, 1996 | Department of Community Affairs` Response to Motion for Abatement filed. |
| Sep. 16, 1996 | (Fl. League of Cities, Inc.) Notice of Substitution of Counsel filed. |
| Sep. 10, 1996 | (St. Joe Paper Co.) Motion for Abatement of Proceedings filed. |
| Sep. 09, 1996 | (DCA) Response to Prehearing Order (filed via facsimile). |
| Aug. 30, 1996 | Order sent out. (Parties to advise the hearing officer in writing within 10 days from this order to hearing dates, Case reopened per Hearing Officer. Case Remanded to DOAH) |
| Jul. 22, 1996 | First DCA Mandate and Opinion filed. |
| Jul. 22, 1996 | Opinion and Mandate from the First DCA filed. |
| Jul. 05, 1996 | First DCA Opinion filed 07/02/96 (Reversed and Remanded filed. |
| Mar. 01, 1995 | Final Order filed. |
| Aug. 08, 1994 | Petitioners`/Appellants` Supplemental Directions for Completion of Record Pursuant to Directions to the Clerk filed. |
| Aug. 08, 1994 | Petitioners/Appellants Supplemental Directions for Completion of Record Pursuant to Directions to Clerk filed. |
| Jul. 21, 1994 | BY ORDER OF THE COURT filed. |
| May 26, 1994 | BY ORDER OF THE COURT(Motion for extension of time to serve initial brief is granted) filed. |
| May 26, 1994 | Payment in the amount of $198.00 for preparing the index filed. |
| May 12, 1994 | Index & Statement of Service sent out. |
| Mar. 24, 1994 | (Petitioner) Directions to the Clerk (2/one filed in 93-6828) filed. |
| Mar. 24, 1994 | Directions to the Clerk filed. |
| Mar. 24, 1994 | Letter to DOAH from DCA filed. DCA Case No. 1-94-873. |
| Mar. 22, 1994 | Notice of Appeal filed. |
| Feb. 18, 1994 | CASE CLOSED. Final Order sent out. Hearing held September 8-10, 1993 and September 13-15, 1993. |
| Dec. 07, 1993 | Department of Community Affairs Appendix of Excerpts From Cumulative Exhibit No. 27 and Officially Notice Documents; Notice of Filing Department of Community Affairs Appendix of Excerpts From Cumulative Exhibit No. 27 and Officially Noticed Documents re |
| Nov. 30, 1993 | Order of Consolidation sent out. (Consolidated cases are: 92-6325RGM, 92-6328RGM) |
| Nov. 30, 1993 | Case No/s 92-6324RGM, 92-6325RGM, 92-6326RGM, 92-6328RGM: unconsolidated. |
| Nov. 29, 1993 | Order of Consolidation sent out. (Consolidated cases are: 92-6324RGM, 92-6325RGM, 92-6326RGM, 92-6328RGM) |
| Nov. 29, 1993 | Case No/s 92-6324RGM, 92-6325RGM, 92-6326RGM, 92-6327RGM, 92-6328RGM: unconsolidated. |
| Dec. 03, 1992 | Notice of Serving Answers to First Set of Interrogatories of Department of Community Affairs filed. |
| Nov. 18, 1992 | Petition to Intervene of 1000 Friends of Florida filed. |
| Nov. 12, 1992 | (Florida League of Cities, Inc.) Petition for Leave to Intervene filed. |
| Oct. 30, 1992 | Order of Consolidation sent out. (Consolidated cases are: 92-6324RGM, 92-6325RGM, 92-6326RGM, 92-6327RGM, 92-6328RGM) |
| Oct. 29, 1992 | First Set of Interrogatories of Department of Community Affairs to Florida East Coast Industries, Inc.; & CC: Cover Letter to S. Ard from A. England (re: error in interrogatories) filed. |
| Oct. 27, 1992 | Order of Assignment sent out. |
| Oct. 27, 1992 | Notice by Department of Community Affairs of Service of First Set of Interrogatories to Florida East Coast Industries, Inc. filed. |
| Oct. 26, 1992 | Letter to Liz Cloud & Carroll Webb from Marguerite Lockard |
| Oct. 23, 1992 | Petition for Administrative Determination of the Invalidity of Proposed Rule filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Jul. 02, 1996 | Opinion | |
| Feb. 18, 1994 | DOAH Final Order | DCA's rule defining urban sprawl and methodology for evaluating plans to determine whether they discourage urban sprawl found valid. |
