vs. ) CASE NO. 75-1061RP
Respondent. )
This matter was brought up for hearing on June 23, 1975, before the Division of Administrative Hearings on the petition filed by the Green Swamp Owners, Inc., a Florida non-profit corporation, and Archie Rutledge and Lawrence NcNeil, individuals.
For Petitioner: C. Welborn Daniel, Esquire
For Respondent: James D. Whisenand, Esquire
Assistant Attorney General Department of Legal Affairs Tallahassee, Florida 32304
Louis F. Hubener, Esquire
This petition was filed under Section 120.54(3), which deals with administrative review of proposed administrative rules. The proposed rules challenged are those of the Department of Administration on behalf of the Administration Commission, specifically, Chapters 22F-6 and 22F-7. These rules are propounded under the authority of Chapter 380, Florida Statutes, and deal with land use regulations for areas of critical state concern. The area lies in Polk and Lake Counties and has been named the Green Swamp Area of Critical State Concern, Chapter 22F5, F.A.C. These proposed rules are challenged as both an invalid exercise of validly delegated authority and an exercise of invalidly delegated legislative authority, as provided in Section 120.54(3), F.S.
The petition states that the Petitioners are substantially affected by the proposed rules, are landowners in the area affected, and that adoption of the rules would deny Petitioners the use of substantial portions of their land. Furthermore, the petition states that the rules completely exclude agricultural lands "thereby treating classes of lands in different manners in violation of the Fifth and Fourteenth Amendments to the U.S. Constitution and in violation of
the Florida Constitution." Chapter 22F-6 are proposed rules for Polk County and Chapter 22F-7 are proposed rules for Lake County. The rules are not identical but are substantially the same. The Petition makes no distinction between both sets of rules in its challenge to them. Basically, both sets are proposed rules setting up land use regulations under the designation of the Green Swamp as an area of critical state concern, as authorized by Chapter 300, F.S.
The challenge to these proposed rules is two-fold. First, that the rules are invalid because they make arbitrary distinctions between land use, and according to the Petitioner, set up two sets of rules for what are alleged to be similar types of lands. Second, it is claimed, the rules are confiscatory in the sense that they do not allow any reasonable use of the lands regulated and the implementation of these rules would result in inverse condemnation.
The Respondent has questioned the petitioners' standing to maintain this proceeding. The Green Swamp homeowner's association was dismissed at the conclusion of this hearing since no evidence as to its interest, or existence, was introduced. Standing of the individual petitioners is challenged on the ground that they will suffer no greater impact by these proposed rules than the general public. The Respondent argues that it is necessary to prove some special injury in order to proceed under Section 120.54(3), Florida Statutes.
While it is true that the Florida Courts have generally required a plaintiff in a civil action to demonstrate a special injury to satisfy standing requirements, see Boucher v. Novotny, 102 So.2d 132, U.S. Steel Co. v. Save Sand Key, Inc., 303 So.2d 9, this rule has not been adopted by the Administrative Procedure Act.
Sec. 120.54(3), F.S., states in part:
If the proposed rule contains any provision not relating exclusively to organization, practice or procedure, then any substantially affected person may seek an administrative determination of the validity of the proposed rule on the following grounds: that the proposed rule is an invalid exercise of validly delegated legislative authority; or, that the proposed rule is an exercise of invalidly delegated legislative authority.
The test for standing as above stated only requires "any substantially affected person" to challenge a proposed rule. The legislature could have adopted the requirements of the above cases, which require a special injury, but they adopted a looser test. As landowners in the Green Swamp, the Petitioners will be substantially affected by proposed land use regulations, and do have a sufficient interest to challenge this proposed rule. The evidence submitted by the Petitioner was through two landowners who own various parcels of land within what has been designated the Green Swamp Area of Critical State Concern. This designation has been previously accomplished by rule of the Department of Administration, Administration Commission, Chapter 22F-5, Florida Administrative Code.
Evidence was submitted by the Petitioner through Petitioners Archie Rutledge and Lawrence McNeil, who both testified to their ownership of parcels of land within the Green Swamp designated area and expressed their belief that the designation of the area has lowered the inherent value of their land. Most
of the parcels of land the Petitioners own is presently used for agricultural purposes and is actually exempt from these proposed rules. However, it is reasonable to assume that these proposed regulations, which will to sore degree regulate land use in the Green Swamp area, will decrease the inherent or speculative value of the Petitioners' holdings. No competent testimony, however, was received which would establish to what degree, if any, the proposed regulations would in any way inhibit future development of these parcels of land should the Petitioners wish to change their agricultural use of these lands at some future date. No testimony was introduced on behalf of the Petitioner that these proposed rules would, in fact, prevent them from using these holdings in any reasonable manner. The Petitioners did not prove their claim that the proposed regulations are confiscatory. The test for such a claim was stated in Waring v. Peterson, 137 So.2d 268:
As a general rule hardship, limitations of use, or diminution of property values alone will not render a zoning ordinance void. This is true, even though the ordinance is harsh and results in serious depreciation of the value of the property affected by it; and financial advantage to owners as a result of it or its enforcement is not the test of its validity. Because of the common effect on properties coming under the general plan of the zoning ordinance, reduction in values shared by most or all tie owners in a locality is not enough, of itself, to render the ordinance confiscatory. On the contrary, if the limitations upon the use of the property are constitutional and applied reasonably and fairly to all, they are valid and the individual hardship and loss must be endured to the end that the greater advantage to the community as
a whole is made possible. See McQuillin, Municipal Corporations, 3rd Ed., Vol. 8, Section 25.44,
p. 98; Yokley, Zoning Law and Practice, Vol. 1, Section 35, p. 58. At page 271.
In fact, no evidence was introduced which would establish the argument that the proposed regulations would cause a complete deprivation of the beneficial of the property in question. It is apparently obvious that such can occur under these proposed regulations, particularly since agricultural use is exempted from any restrictions. Furthermore, the proposed rules anticipate the possibility of variances being granted to individual landowners. Under these rules, the Petitioners may never be restricted from implementing a desired land use. The evidence therefor presented did not establish such a complete restriction of land use within the Green Swamp so as to justify a finding of confiscation or inverse condemnation.
In order for such a restriction to be held invalid, it must be shown that it has the effect of completely depriving the property owner of the beneficial use of his property by precluding all uses or the only use to which it is reasonably adopted. City of Clearwater v. College Properties, Inc., 239 So.2d 515 (2 DCA 1970); Forde v. City of Miami Beach, 1 So.2d 642 (Fla. 1941).
The second argument presented by the Petitioners is that the proposed rules are inherently invalid in that by not including agricultural lands in these land use regulations, there will be unequal treatment of similar types of
land which will result in arbitrary and unequal regulation in violation of the State and Federal Constitutions. These proposed land use regulations classify the lands in three general categories: wetlands, pine flat woods, and uplands. The regulations generally limit site alteration to each of the three as follows: wetlands - 10 percent; pine flat woods - 25 percent; uplands - 60 percent. The major purpose of these proposed rules appears to be directed at maintaining the natural regime of water resources in the Green Swamp and to prevent disruption of the Green Swamp as a major recharge area for the Florida aquifer.
It cannot be said that the exemption of agricultural lands from these land use regulations is so arbitrary and unreasonable as to render the rules invalid. Since the major purpose of those rules is to prevent the type of land development which might increase surface runoff and thereby reduce the subsurface water table, the omission of agricultural lands appears to be a reasonable attempt on the part of the state to limit these regulations and still achieve the desired result. In that sense, it cannot be said as a matter of law that these proposed regulations are so unreasonable and arbitrary as to be invalid. This is particularly true when it is considered that we are dealing with proposed rules and not the operation of existing rules. Until these rules are adopted and enforced, the Petitioners in this batter cannot show that they will be subject to any unlawful or substantial injury. The complained of injury in this case is hypothetical and speculative and until these proposed regulatory powers of the state are exercise, it cannot be determined as a matter of law that an injury will occur.
The proposed rules can easily be likened to zoning ordinances. The only difference is at whereas zoning is normally a local function, in this case land use regulations are being proposed by the state. Any review of zoning ordinances do not consider the wisdom in the enactment of those regulations. Godson v. Surfside, 8 So.2d 497. This hearing officer cannot substitute his judgement for that of the state and must sustain these proposed rules even if the matter were "fairly debatable, Board of Commissioners v. Tallahassee Bank and Trust Company, 116 So.2d 762; Miami v. Hollis, 77 So.2d 834. To set aside land use regulations, it must be clear that the regulations have no logical foundation and are an arbitrary exercise of power without reference public health, safety, or welfare. State ex. rel. Helseth v. DuBose, 123 So. 4. It is also noteworthy that when an attack is made on a land use regulation, the burden of alleging and proving invalidity rests upon the assailant and this burden is normally characterized as extraordinary and heavy. Virginia Gardens v. Johnson,
143 So.2d 692; Burritt v. Harris, 165 So.2d 168.
In this matter the Petitioner presented little evidence dealing with arbitrariness or unreasonableness of the proposed rules. In addition, the Respondent, Department of Administration, presented testimony relating to the need to protect the water resources of the Green Swamp and a report captioned "Final Report and Recommendations for the Proposed Green Swamp Area of Critical State Concern." This report deals with the water resources within the Green Swamp and the necessity for preserving the water retention capabilities of the Green Swamp so that it may continue to be a recharge area for the Florida aquifer. The proposed rules are consistent with the conclusions of this report and a factual basis for their adoption has been established by the evidence submitted by the Respondent.
WHEREFORE, IT IS ORDERED Petition in this matter is in all respects Denied.
DONE and ORDERED this 27th day of June, 1975, in Tallahassee, Florida.
KENNETH G. OERTEL, Director
Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
C. Wellborn Daniel, Esquire
P. 0. Box 189
James D. Whisenand, Esquire Assistant Attorney General Department of Legal Affairs Tallahassee, Florida 32304
Louis F. Hubener, Esquire
Department of Administration Room 530, Carlton Building Tallahassee, Florida 32304
