STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SEWELL CORKRAN, )

)

Petitioner, )

)

vs. ) CASE NO. 96-4857RGM

)

ADMINISTRATION COMMISSION, )

)

Respondent. )

)

FINAL ORDER

On January 29, 1997, a formal administrative hearing was held in this case in Tallahassee, Florida, before Richard Hixson, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Sewell Corkran, representing himself

213 9th Avenue South Naples, Florida 33940-6847

For Respondent: Colin M. Roopnarine, Esquire

Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100

STATEMENT OF THE ISSUE

The issue for determination in this case is whether Rules 28-25.004 and 28-25.006(1), Florida Administrative Code, are vague and arbitrary as defined in Sections 120.52(8)(d) and (e), Florida Statutes, and therefore constitute an invalid exercise of delegated legislative authority.

PRELIMINARY STATEMENT

On September 23, 1996, Petitioner, SEWELL CORKRAN, filed a Petition challenging the validity of Rules 28-25.004 and 28- 25.006(1), Florida Administrative Code, on the grounds that such rules were too vague and arbitrary to establish adequate standards for implementation of the purpose of the rules to protect the natural resources and regulate development in the Big Cypress Area, designated as an Area of Critical State Concern.

The Petition named as Respondent, the ADMINISTRATION COMMISSION; however, by letter dated November 5, 1996, the Department of Community Affairs was duly authorized to represent the ADMINISTRATION COMMISSION in this proceeding.

Pursuant to the joint motion of the parties, formal hearing in this matter was continued to January 29, 1997. At hearing, Petitioner testified in his own behalf, and presented four exhibits which were received in evidence. The parties also presented one joint exhibit which was received in evidence.

Respondent presented the testimony of one witness, Mike McDaniel, Bureau Chief, Resource Planning and Management, of the Department of Community Affairs. Respondent also presented one additional exhibit which was received in evidence.

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

Petitioner filed his Proposed Final Order on March 14, 1997. Respondent filed its Proposed Final Order on March 24, 1997.

FINDINGS OF FACT

1. Petitioner, SEWELL CORKRAN, is a resident of Collier County, Florida, and past President of the Collier County Audubon Society. Petitioner’s standing to bring this action was not contested.

2. Respondent, ADMINISTRATION COMMISSION, is the agency of the State of Florida vested with the statutory authority for the promulgation of Rules 28-25.002, et seq., Florida Administrative Code, pertaining to conservation and development within the Big Cypress Area. The DEPARTMENT OF COMMUNITY AFFAIRS (hereinafter AGENCY) is duly authorized to represent the ADMINISTRATION COMMISSION in these proceedings.

3. Rules 28-25.004 and 28-25-006(1), Florida Administrative Code, set forth below, were adopted on November 28, 1973.

   Stipulated Facts

   
   

4. There have been no examples of development in the Big Cypress Area of Critical State Concern such as that described by Petitioner, wherein lands that have been totally altered, have been one-hundred percent developed subsequent to agriculture.

5. Development of ten (10) percent of a site in the Big Cypress Area of Critical State Concern is a reasonably acceptable amount of development.

   Agency Administration of Rule Chapter 28-25

   
   

6. As indicated above, Rule Chapter 28-25, Florida Administrative Code, was initially promulgated in 1973 pursuant

   to Section 380.05, Florida Statutes, for the purpose of protection and conservation of the Big Cypress Area of Critical State Concern (ACSC).

7. The challenged agricultural exemption applicable to the Big Cypress ACSC is set forth in Rule 28-25.004, Florida Administrative Code, which provides:

   Agricultural Exemption. The use of any land for the purpose of growing plants, crops, trees, and other agricultural or forestry products, raising livestock or for other purposes directly related to all such uses are exempt from these regulations. However, whenever any person carries out any activity defined in Section 380, Florida Statutes, as development or applies for a development permit, as defined in Section 380, Florida Statutes, to develop exempted land, these regulations shall apply to such application and to such land.

8. The challenged site alteration provisions of Rule 28- 25.006(1), Florida Administrative Code, limit such development to ten percent providing:

   Site Alteration. Site alteration shall be limited to 10% of the total site size, and installation of non permeable surfaces shall not exceed 50% of any such area. However, a minimum of 2,500 square feet may be altered on any permitted site.

   
   

9. The AGENCY construes Rules 28-25.004 and 28-25.0061, Florida Administrative Code, as complementary. Pursuant to the agency’s construction and application of these rules, if a parcel of land is exempted for agricultural purposes, and is then altered for development purposes as defined in Section 380.04, Florida Statutes (1995), that development, pursuant to Rule 28-

   25.006(1), Florida Administrative Code, would be limited to only ten percent of the total site size. Under the agency’s construction and application, the rules are not mutually exclusive, and regardless of an agricultural exemption, development will only be allowed on a maximum of ten percent of the total parcel. The agency makes no distinction made between whether the site is pristine or has been previously disturbed.

10. The construction and application of the rules by the agency has been consistent. In implementing these rules development has been limited to only ten percent of a total site.

11. There is no evidence of any instances in which a site that had been altered under the agricultural exemption was subsequently altered for development purposes to an amount greater than ten percent. There is no evidence that such a subsequent alteration from agriculture to development has ever been attempted.

12. The agency reviews all development orders that are issued in the Big Cypress ACSC based upon established guidelines and standards.

13. The evidence reflects that currently the AGENCY is in the process of appealing a development order issued by Collier County concerning Rule 28-25.006(1), Florida Administrative Code, which involves a request for development of a site previously disturbed by a spoil bank. In that case, the amount of land to be developed was proposed to be in excess of ten percent. The

    requested conversion was not from agricultural to development, as that term is defined in Section 380.04, Florida Statutes (1995). Because the spoil bank disturbed more than ten percent of the total site, the agency appealed the development order. The record indicates that this appeal is currently going through settlement negotiations wherein development will be limited to ten percent, regardless of the size of the disturbed area created by the spoil bank.

14. The agency considers a number of factors when amending a rule. One of the factors is whether there has been much controversy associated with the rule, which would be one indication that the rule is so vague as to cause confusion in its understanding and inconsistency in its application. This has not been the case where these Big Cypress ACSC rules have been applied.

15. County land development regulations may be stricter then rules promulgated or approved by the AGENCY, pursuant to Rule 28-25.013, Florida Administrative Code, which provides:

    In case of a conflict between Big Cypress Critical Area regulations and other regulations which are a proper exercise of authority of a governmental jurisdiction, the more restrictive of the provisions shall apply.

    
    

16. Collier County’s Land Development Regulation 3.9.6.5.1(7) is more restrictive than Rule 28-25.004, Florida Administrative Code, which deals with the site alteration exemption for agricultural purposes.

    The following conditions, as applicable, shall be addressed as part of and attachments to the agriculture land clearing application:

    
    

    * * *

    
    

    (7) The property owner, or authorized agent, has filed an executed agreement with the development services director, stating that within two years from the date on which the agricultural clearing permit is approved by the development services director, the owner/agent will put the property into a bona fide agricultural use and pursue such activity in a manner conducive to the successful harvesting of its expected crops or products.

17. The agency does not have statutory authorization to regulate agriculture, which is explicitly exempted from the definition of development in Chapter 380, Florida Statutes (1995), in the Big Cypress Area.

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject of, this proceeding. Sections 120.56(1) and 120.57(1), Florida Statutes.

19. Adopted agency rules are presumptively valid, and the burden is on the Petitioner challenging the rules to prove the invalidity of a rule by a preponderance of the evidence. Section 120.56(3), Florida Statutes. See, Cortes v. State Board of Regents, 655 So.2d 132 (Fla. 1st DCA 1995).

20. Moreover, “great weight will be given to rules which have been in effect over an extended period and the meaning assigned to them by officials charged with their administration

    unless clearly erroneous.” State Department of Commerce v. Mathews Corporation, 358 So.2d 256, 260 (Fla. 1st DCA 1978). The rules challenged in this proceeding have been in existence since 1973, and the challenged rules have been applied by the agency in a consistent manner since that time.

21. A rule is considered an “invalid exercise of delegated legislative authority” if, “... [it] is vague, fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency; or if the rule is arbitrary or capricious.” Section 120.52(8)(d) and (e), Florida Statutes.

22. The evidence fails to meet the burden of establishing that the challenged rules are vague, arbitrary or capricious.

23. In accordance with Section 380.055, Florida Statutes (1995), “The Big Cypress Conservation Act of 1973,” the Big Cypress area was designated an area of critical state concern by the Legislature. Section 380.07, Florida Statutes (1995), provides the AGENCY with the authority to appeal any development orders to the Administration Commission, in an area of critical state concern. Development orders that may be issued in the Big Cypress ACSC by a local government are subject to review by the AGENCY, and if inconsistencies are found with the agency’s rules or the Commission’s rules, then it can be appealed to the Commission.

24. Section 380.04, Florida Statutes (1995), defines development to specifically exclude agriculture. As such, the

    agency does not have the specific legislative authority, under subsection 120.536(1), Florida Statutes, to regulate agriculture. Local governments, however, may institute land development regulations relating to agriculture. Unlike other areas of critical state concern, local governments in the Big Cypress are not required to submit land development regulations to the agency for approval. The agency, however, is authorized to make recommendations and submit land development regulations to the Administration Commission, which may adopt or modify such regulations. Subsection 380.055(4), Florida Statutes (1995). In the event that the county’s land development regulations are stricter than the AGENCY’s administered rules, then the more restrictive provisions shall apply in the Big Cypress ACSC. See Rule 28-25.013, Florida Administrative Code.

25. The evidence presented fails to establish that Rules 28-25.004 and 28-25.006(1), Florida Administrative Code, are vague and arbitrary as defined in Section 120.52(8)(d) and (e), Florida Statutes. There is no evidence of development in the Big Cypress Area in violation of the provisions of the rules. The evidence shows that since 1973 the rules have been consistently

construed and applied by the agency to meet the purpose for which the rules were promulgated.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, the Petition filed in this matter is hereby DISMISSED.

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

RICHARD HIXSON

Administrative Law Judge

Division of Administrative Hearings DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 21st day of April, 1997.

COPIES FURNISHED:

Sewell Corkran

213 9th Avenue South Naples, Florida 33940-6847

Bob Bradley

Office of the Governor The Capitol, Suite 209

Tallahassee, Florida 32399-0001

Colin M. Roopnarine, Assistant General Counsel Department of Community Affairs

2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100

Liz Cloud, Chief

Bureau of Administrative Code Department of State

The Elliott Building Tallahassee, Florida 32399-0250

Carroll Webb, Executive Director Administrative Procedures Committee Holland Building, Room 120 Tallahassee, Florida 32399-1300

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this final order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of a notice of appeal with the agency clerk of the Division of Administrative Hearings and a second copy, accompanied by filing fees proscribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the appellate district where the party resides. The notice of appeal must be filed within thirty (30) days of rendition of the order to be reviewed.

Docket for Case No: 96-004857

Orders for Case No: 96-004857