Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following Findings of Fact: The Respondent, St. Lucie County Expressway Authority, was created by the Florida legislature in 1983, and is governed by Chapter 348, Florida Statutes. The Authority is composed of two members from the Board of County Commissioners of St. Lucie County, two members from the City Commission of Ft. Pierce, two members from the City Council of Port St. Lucie and three members appointed by the governor. Based on the anticipated future growth of St. Lucie County, there is a need for additional East-West traffic arteries in the southern portion of the county to ease expected traffic conditions. The St. Lucie County Expressway Authority employed consultants and conducted public hearings to determine the best location for such a roadway. Prior to selecting the location for the proposed East-West Expressway, the St. Lucie County Expressway Authority examined feasibility studies, traffic count reports and engineering and road design proposals on alternative alignments and found the proposed corridor to be the best choice from both an economic and environmental standpoint. The proposed expressway route connects Interstate 95 to U.S. Highway 1. Phase 1 of the project would begin in the southern portion of St. Lucie County at U.S. Highway 1 and continue east, following existing transmission lines owned by Florida Power and Light Company and extend to a point which is now called East Torino Parkway. The total length of Phase One of the project is approximately 2.6 miles. Phase Two would extend the project to Interstate 95. The St. Lucie County Expressway Authority expects to obtain funding for construction of the East-West Expressway from various sources including the State of Florida's Toll Facilities Revolving Trust Fund, the Florida Department of Transportation and state-backed revenue bonds. The use of state-backed revenue bonds would require St. Lucie County to pledge a certain portion of its gas tax revenue as security to cover the bonds in the event that the expressway did not generate enough money from tolls to pay back the bonds. A public hearing is scheduled for January, 1988 at which the St. Lucie County Commission will review updated feasibility studies and traffic count estimates to determine whether to pledge the necessary funds to support the bonds. Assuming that approval is obtained for state-backed revenue bonds, the letting of a contract to construct the East-West Expressway could be accomplished by July 1, 1989. The time period for construction of a project such as the East-West Expressway is approximately two (2) years from the date that the contract for construction is executed. Thus, under the most optimistic outlook and projections, the proposed East-West Expressway could be completed by July of 1991. However, difficulties in obtaining funding and/or necessary environmental permits could delay completion of the expressway for ten (10) years, or until 1997. In conjunction with the preparation of plans for construction of the East-West Expressway, the St. Lucie County Expressway Authority filed "right-of- way reservation maps" on October 13, 1986, in accordance with Section 337.241, Florida Statutes. The reservation maps were filed and approved by the St. Lucie County Expressway Authority in compliance with all applicable statutes and regulations. The purpose of filing the right-of-way reservation maps by the St. Lucie County Expressway Authority is to preclude development of properties within the proposed corridor of the East-West Expressway while final construction and engineering plans are being prepared, thereby preventing an increase in cost of acquisition of those properties pending eventual eminent domain proceedings. The right-of-way reservation maps will prohibit the granting of development permits, as defined in Section 380.031(4), Florida Statutes, by any governmental entity for a period of five (5) years from the date of recording of the reservation maps. This period may be extended for an additional five years at the option of the Expressway Authority pursuant to Section 337.241(2), Florida Statutes. The reservation maps do not prohibit sale, continued use of the property by its owners nor is any use prohibited which does not require a development permit as defined in Section 380.031(4), Florida Statutes. The engineering construction plans for the East-West Expressway encompass less area than the reservation maps. However, the larger reserved area will be utilized to facilitate construction of the project and for water retention on site. Thus, less private property will ultimately be taken than that which is included in the right-of-way reservation area. The property owned by Petitioners, T. L. Sloan, James Taylor and Bill Stewart (hereinafter referred to as the "Sloan property") consists of a front and rear parcel. The front parcel consists of 6.54 acres of which 2.28 are within the right-of-way reservation area. The rear parcel is physically separated from the front parcel by a drainage canal and consists of approximately 4.25 acres. The rear parcel is not within the reservation map area, but access to this parcel can only be gained by U.S. Highway 1 through the front property. The property owned by Petitioners Mark C. Walters and David J. Gonzalez (hereinafter referred to as the "Walters' property") measures approximately 55,450 square feet of which approximately 46,000 square feet are within the right-of-way reservation area. The Sloan and Walters' properties are located at the easternmost end of the proposed East-West Expressway and front the east side of U.S. Highway 1 in Ft. Pierce, Florida. Both properties were purchased in 1984 as investment property and are presently vacant, unimproved acreage. The front parcel of the Sloan property is zoned commercial general and the rear parcel is zoned multifamily residential at five units per acre. The Walters' property is zoned commercial general and is adjacent to the Florida Power and Light transmission lines. The St. Lucie County Expressway Authority intends to use the property within the reserved area for the construction of the entrance and exit ramps of the proposed expressway. The engineering design of the East-West Expressway was done with as little intrusion upon Petitioner's properties as practical and only that property absolutely necessary for construction will ultimately be taken. Pursuant to the right-of-way reservation maps, all of the highway frontage on U.S. Highway 1 for both properties has been reserved for the expressway construction. Because of existing regulations, the St. Lucie County zoning office will not issue any development permits for property which has no access to a public highway. Therefore, the local zoning office will not issue any development permits for any portion of the Petitioners' properties, whether included in the reservation area or not. Thus, all of the property owned by Petitioners has been affected by the right-of-way reservation maps. The Sloan property was listed for sale prior to the recording of the right-of-way reservation maps. The Walters' property was purchased with the intent to build a gun shop which is now operated by the present owners at another location. After the recording of the reservation maps, the Walters' property was actively listed for sale. After the recording of the reservation maps, purchase inquiries regarding the Sloan property began to rapidly decrease. Inquiries regarding the Walters' property have also been extremely slow. No written offers to purchase the subject properties have been submitted to any of the Petitioners. David Fuller, a real property appraiser called as a witness by Petitioners, prepared an appraisal estimating the effects of recording the right-of-way reservation maps on the Sloan and Walters' property. The testimony of Mr. Fuller is accepted as more credible and pertinent to the issues involved in this cause than the testimony presented by Mr. Davis, the Respondent's expert appraiser. Mr. Davis admitted that the purpose of his appraisal was to estimate the fair market value of the property in fee simple, the part "taken" and damages to the remainder for the purpose of eminent domain. Mr. Davis' analysis is more appropriate for an action sounding in eminent domain. Mr. Fuller used the Sales Comparison or Market Approach combined with a discounted cash flow method of appraisal in determining the difference in the value of the properties before the recording of the right-of-way reservation maps, and the market value of the properties immediately after recording of the reservation maps. The value of real property is directly related to the use to which it can be put. Thus, a particular parcel may have several different value levels under alternative uses. In determining what, if any, substantial impact the record of the right-of-way reservation maps had on the market value of the Sloan and Walters' property, Fuller evaluated the difference in the value of the properties utilizing their highest and best use before the filing of the right- of-way reservation maps and the highest and best use after the recording of the maps. The highest and best use for the Sloan property without the encumbrance of the right-of-way maps would be to improve the front commercial zoned parcel with a commercial use consistent with neighborhood use trends (i.e., strip shopping centers, rental storage buildings and/or automobile dealerships) and improve the rear multifamily zoned parcel with a support use for the front commercial property. The highest and best use of the Sloan property after filing of the right-of-way reservation maps would be to hold the property as vacant until the right-of-way reservation map filing expires. Although the Sloan property could be sold with the right-of-way reservation, a majority of the potential market would be eliminated and the remaining market would require a discount to purchase the property knowing that the restrictions exist. The potential market in the neighborhood consists of generally three types of investors; (1) the owner occupant; (2) the real estate investor seeking income from an improved property; and (3), the short term land speculator. The owner occupant seeking to immediately build would not consider the property in question because the potential to immediately construct a new improvement is not available. Likewise, the investor seeking to build an income producing improvement, either immediately or in the next three years, would not be interested in the property. The short term land speculator would not be interested because there is no certainty that the property would be able to be developed to its highest potential market value within the next two to three years. The highest and best use for the Walters' property without the encumbrance of the right-of-way reservation maps would be to improve the parcel in approximately one to two years with a commercial use consistent with the neighborhood trends (i.e., owner occupied small business and/or mini-storage property). Improved uses such as an automobile dealership or shopping center could not be physically constructed on a site the size and shape of the Walters' property. The highest and best use of the Walters' property after filing of the right-of-way reservation maps would be to hold the parcel vacant until the reservation filing expires. As with the Sloan property, although the parcel could be sold, a majority of the potential market would be eliminated and the remaining market would require a discount to purchase the property knowing that the restrictions exist. Mr. Fuller stated that in his opinion, using the discounted cash flow model of appraisal, the Sloan properties suffered a total loss in value of approximately $441,450.00 on the date the reservation maps were filed. As to the Walters' property, the loss was calculated at $78,480.00. Mr. Fuller's financial calculations as to loss are misleading and not very useful because they were specifically calculated for a period of time of ten years. In other words, Mr. Fuller's total loss of value calculations are based on the assumption that the reservation map restrictions would exist for the full initial five (5) year period and that they would be extended for an additional five (5) year period. The ability to develop vacant and unimproved commercial property and to put the land to its highest and best use is a substantial beneficial ownership interest arising out of the ownership of commercial property. Both of the properties owned by Petitioners are fully capable of development and no other impediments to development exist except for the reservation maps. Substantial payments on the mortgages for the properties are being made by Petitioners each year totalling over $58,000.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that the St. Lucie County Expressway Authority enter a Final Order in favor of Petitioners after which the Authority shall have 180 days from the date of said order to acquire the Petitioners property or initiate appropriate acquisition proceedings pursuant to the requirements of Section 337.241, Florida Statutes. DONE and ORDERED this 2nd day of December, 1987, in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of December, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 87-2279, 87-2517 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Finding of Fact 1. Adopted in Findings of Fact 7 and 8. Adopted in Finding of Fact 7. Adopted in Findings of Fact 11, 12 and 13. Adopted in Findings of Fact 11, 12, 13 and 14. Adopted in Finding of Fact 15. Adopted in Finding of Fact 16. Adopted in Findings of Fact 9, 17 and 18. Adopted in substance in Findings of Fact 23, 25 and 27. Partially adopted in Findings of Fact 6 and 26. Matters not contained therein are rejected as misleading and/or argument. Adopted in substance inn Finding of Fact 27. Addressed in Conclusions of Law section. Addressed in Conclusions of Law section. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. Adopted in Finding of Fact 8. Adopted in Finding of Fact 7. Adopted in Finding of Fact 7. Adopted in Finding of Fact 13. Adopted in Finding of Fact 10. Adopted in Finding of Fact 3. Adopted in Finding of Fact 9. Rejected as subordinate and/or unnecessary. Adopted in Finding of Fact 11. Adopted in Finding of Fact 12. Adopted in Finding of Fact 13. Adopted in Findings of Fact 13 and 14. Adopted in Findings of Fact 13 and 14. Rejected as subordinate and/or unnecessary. Adopted in Finding of Fact 18. Adopted in Finding of Fact 9. Adopted in Finding of Fact 9. Adopted in Finding of Fact 15. Adopted in substance in Finding of Fact 10. Partially adopted in Finding of Fact 26. Matters not contained therein are rejected as misleading and/or not supported by the weight of the evidence. Rejected as contrary to the weight of the evidence. Adopted in substance in Finding of Fact 6. Rejected as misleading. The Petitioners' expert projected that "completion" and not "construction" could possibly take 10 years. Adopted in substance in Finding of Fact 9. COPIES FURNISHED: John T. Brennan, Esquire Post Office Box 3779 Ft. Pierce, Florida 33448-3779 Frank J. Lynch, Jr., Esquire Post Office Box 4027 Ft. Pierce, Florida 33448-4027 David Stuart Chairman St. Lucie County Expressway Authority Post Office Box 4027 Ft. Pierce, Florida 33448-4027
Findings Of Fact Respondent Sheila Traub was exclusively connected with International Land Brokers, Inc., as a real estate salesperson, from June 3, 1975, to September 9, 1975. During the period of respondent's employment, Jeffrey Kramer, a real estate broker, was president and active firm member of International Land Brokers, Inc. One of the corporation's offices consisted of two rooms. The front room contained Mr. Kramer's desk, a secretary's desk, file cabinets, a duplicating machine, and a reception area. The back room was divided into six cubicles, each with a telephone. The office complex had a regular telephone line and a WATS line. Attached to the walls of most of the cubicles most of the time were portions of a packet of papers that was mailed to certain prospects. Pages two through five of composite exhibit No. 1, together with the last page, were at one time posted on the walls of some of the cubicles. Between the hours of six and half past ten five nights a week and at various times on weekends, salespersons in the employ of International Land Brokers, Inc. manned the telephones in the cubicles. They called up property owners, introduced themselves as licensed real estate salespersons, and inquired whether the property owner was interested in selling his property. When a property owner indicated an interest in selling, the salesperson made a note of that fact. The following day, clerical employees mailed a packet of papers to the property owners whose interest in selling the salesperson had noted. Petitioner's composite exhibit No. 1 contains the papers mailed to one prospect. The contents of the materials which were mailed out changed three or four times over the year and a half that International Land Brokers, Inc., was in business. As a general rule, a week or so after the initial call to a property owner who proved interested in selling, a salesperson placed a second telephone call to answer any questions about the materials that had been mailed, and to encourage the property owner to list the property for sale with International Land Brokers Inc. Property owners who listed their property paid International Land Brokers, Inc., a listing fee which was to be subtracted from the broker's commission, in the event of sale. When International Land Brokers, Inc., began operation, the listing fee was $200.00 or $250.00, but the listing fee was eventually raised to about $300.00. In the event the same salesperson both initially contacted the property owner and subsequently secured the listing, the salesperson was paid approximately 30 percent of the listing fee. If one salesperson initially contacted the property owner and another salesperson secured the listing, the one who made the initial telephone call was paid approximately $20.00 and the other salesperson was paid between $75.00 and $90.00 or thereabouts; when more than one salesperson was involved the sum of the amounts paid to the salespersons represented about 35 percent of the listing fee. In telephoning property owners, the salespersons worked from lists which International Land Brokers, Inc., had bought from unspecified individuals, or compiled from county tax records.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the complaint be dismissed. DONE and ENTERED this 22nd day of September, 1977, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of September, 1977. COPIES FURNISHED: Mr. Louis B. Guttmann, III, Esquire Mr. Richard J.R. Parkinson, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Ms. Sheila Traub c/o Dan Barrie 8975 Northeast 6th Avenue Miami Shores, Florida 33153
The Issue The issue is whether proposed rules 9J-5.026(3)(d), (7)(b), (7)(c)4. and 6., (8)(a), (9)(a)3., 6., 18., and 19., and 9J- 11.023(2), (4), and (5), and existing Florida Administrative Code Rule 9J-5.003(80) are invalid exercises of delegated legislative authority for the reasons alleged in the Petition for Administrative Hearing to Challenge Proposed Amendments to Chapters 9J-5 and 9J-11, F.A.C. and to Challenge Existing Rule 9J-5.003(80) (Petition).1
Findings Of Fact Based on the evidence presented by the parties, the following findings are made: The Parties Petitioners are not-for-profit organizations whose members own real property throughout the State. A substantial number of their respective members own real property which could be amassed as one or more areas in the RLSA program. Some members of these organizations have taken steps in an effort to have their land designated as an RLSA. On behalf of their respective members, each Petitioner has a substantial interest in public policy relating to land use planning, growth management, and the protection of agricultural, rural, and conservation lands. Respondent, Department of Community Affairs (Department), has stipulated to the facts necessary to establish standing for each Petitioner. The Department is the state agency charged with implementing the review provisions of the Local Government Planning and Land Development Regulation Act codified in Sections 163.3164, et seq., Florida Statutes. The Original Statute Creating the RLSA Program Because of the complexity of the subject matter, a recitation of the RLSA program's history is appropriate. In 2001, the Legislature enacted Chapter 2001-279, Laws of Florida, codified as Section 163.3177(11)(d), Florida Statutes, which created the RLSA pilot program. The law became effective on July 1, 2001, and stated: It is the intent of the Legislature that rural land stewardship areas be used to further the following broad principles of rural sustainability: restoration and maintenance of the economic value of rural land; control of urban sprawl; identification and protection of ecosystems, habitats, and natural resources; promotion of rural economic activity; maintenance of the viability of Florida's agriculture economy; and protection of the character of the rural areas of Florida. § 163.3177(11)(d)2., Fla. Stat. (2001). While the eligibility criteria and substantive requirements of the RLSA program have been amended several times, the foregoing principles have remained the same. The statute provides an option, not an exception, under the State's growth management laws for local governments to implement innovative planning and development strategies for large, rural parcels. While having many of the attributes of a traditional "transfer of development rights" program, the RLSA planning process provides additional planning and economic incentives as well as flexibility for the local government to implement this program. The program was best summarized by Secretary Pelham at hearing as follows: The RLSA process is an optional planning process which local governments may elect to use in rural and agricultural areas of the state. Essentially it provides incentives to landowners to preserve or conserve environmental and natural resources and agricultural lands by giving them stewardship credits that may be assigned to those lands to be preserved, but which can be used on other lands through a transfer of those credits to the receiving areas. Tr. at 182. The first step in the RLSA planning process is for the local government to "apply to the Department in writing requesting consideration for authorization to designate a [RLSA]." § 163.3177(11)(d)3., Fla. Stat. (2001). Under the original statute, if the Department chose to authorize a local government to designate an RLSA, it would do so by written agreement with the local government. See § 163.3177(11)(d)4. and (5), Fla. Stat. (2001). Because the original statute was a pilot program, the Department could authorize only five local governments to designate RLSAs. See § 163.3177(11)(d)6., Fla. Stat. (2001). To be eligible for designation as an RLSA under this pilot program, a parcel of land had to be larger than 50,000 acres but not over 250,000 acres; it had to be designated as rural or a substantial equivalent on the future land use map (FLUM); and it had to be located outside the municipal and established urban growth boundaries. See § 163.3177(11)(d)6., Fla. Stat. (2001). For this reason, only counties (and not cities) were eligible to participate in the program. Once it received Department authorization to designate an RLSA, the county was to then propose and adopt a plan amendment designating the RLSA. See § 163.3177(11)(d)6., Fla. Stat. (2001). This plan amendment was to be subject to full review under Section 163.3184, Florida Statutes, for a compliance determination. Also, the plan amendment was required to specifically address the following: Criteria for the designation of receiving areas within rural land stewardship areas in which innovative planning and development strategies may be applied. Criteria shall at a minimum provide for the following adequacy of suitable land to accommodate development so as to avoid conflict with environmentally sensitive areas, resources, and habitats; compatibility between and transition from higher density uses to lower intensity rural uses; the establishment of receiving area service boundaries which provide for a separation between receiving areas and other land uses within the rural land stewardship area through limitations on the extension of services; and connection of receiving areas with the rest of the rural land stewardship area using rural design and rural road corridors. Goals, objectives, and policies setting forth the innovative planning and development strategies to be applied within rural land stewardship areas pursuant to the provisions of this section. A process for the implementation of innovative planning and development strategies within the rural land stewardship area, including those described in this subsection and s. 9J-5.006(5)(l), Florida Administrative Code, which provide for a functional mix of land uses and which are applied through the adoption by the local government of zoning and land development regulations applicable to the rural land stewardship area. A process which encourages visioning pursuant to s. 163.3167(11) to ensure that innovative planning and development strategies comply with the provisions of this section. The control of sprawl through the use of innovative strategies and creative land use techniques consistent with the provisions of this subsection and rule 9J-5.006(5)(l), Florida Administrative Code. Once the plan amendment was in place, the county was then to implement it through land development regulations. Under the original statute, the county by ordinance was to "assign to the [RLSA] a certain number of credits, to be known as 'transferable rural land use credits' . . . ." These credits would then be transferred to designated receiving areas "solely for the purpose of implementing innovative planning and development strategies and creative land use planning techniques adopted by the local government pursuant to this section." See § 163.3177(11)(d)8.b., Fla. Stat. (2001). Once transferable rural land use credits were transferred from a parcel, the underlying land uses would be extinguished, the parcel would be limited to agriculture or conservation, and the transfer would be memorialized as a restrictive covenant running with the land. See § 163.3177(11)(d)8.k., Fla. Stat. (2001). The Department was granted the authority to implement this section by rule in the original statute. However, the Department did not adopt rules. No county applied to participate in this pilot program. Amendments to the RLSA Statute The Legislature substantially amended the statute in 2004. See Ch. 2004-372, Laws of Fla. Although the program had no participants as of that time, the Legislature removed the pilot status of the program and the limitation on the number of local governments that may be authorized to designate an RLSA. See § 163.3177(11)(d)1., Fla. Stat. (2004). Although the requirement for a written agreement between the county and the Department was deleted, the requirement for the county's application and Department's authorization prior to the designation of an RLSA remained. See § 163.3177(11)(d)1. and 4., Fla. Stat. (2004). The minimum acreage for an RLSA was reduced to 10,000 acres and the maximum was removed. § 163.3177(11)(d)4., Fla. Stat. (2004). The statute also explicitly recognized that RLSAs could be multi-county. § 163.3177(11)(d)2., Fla. Stat. (2004). In 2005, the Legislature again amended the statute in several respects, one of which was directed to the stewardship credit methodology. See Ch. 2005-290, Laws of Fla. However, the statute still requires that the total amount of credits is to be tied to the "25-year or greater projected population of the rural land stewardship area." Although the statute was amended again in 2006, those amendments have no bearing on the issues in this case. See Ch. 2006-220, Laws of Fla. Designating an RLSA Under the Statute Collier County has been frequently mentioned as a local government with an RLSA program. However, that County's comprehensive plan provisions regarding rural development were not adopted under the RLSA statute; rather, they were adopted by the County in 1999 as conventional plan amendments that were later approved in 2002 by a final order issued by the Administration Commission. Collier County's rural planning program does, however, have some of the same core attributes found in the RLSA program, including the creation of transferable land use credits to enable development in designated receiving areas. The Department closely examined the Collier County program as part of its "Rural Land Stewardship Area Program 2007 Annual Report to the Legislature" (2007 Annual Report). See Joint Exhibit 4. See also § 163.3177(11)(d)8., Fla. Stat. ("[t]he department shall report to the Legislature on an annual basis on the results of implementation of [RLSAs] authorized by the department"). This examination revealed several substantial flaws in the program. First, the Collier County program is extremely complex, with over twenty general attributes that must be examined for every acre of land assigned stewardship credits. This would make it difficult and expensive for small rural counties with limited resources. The Collier County program also assigns the highest stewardship credits to environmentally sensitive lands and appreciably lower values to agricultural land. The result is that development is directed to agricultural areas. For example, eighty-seven percent of the footprint of one receiving area that is currently being developed, known as Ave Maria, was in active agriculture prior to its designation for development. In this respect, the Collier County system is directing development to agricultural lands and not protecting and conserving those lands, which the Department contends contravenes the principles of rural sustainability. Another major concern with the Collier County program is the extent and distribution of receiving areas. The Collier County program does not have any requirements that the receiving area be clustered, thus allowing for the possibility of scattered, sprawling receiving areas throughout eastern Collier County. Also, there appears to be no limit on the footprint of these receiving areas. The original Collier County program envisioned development on only nine to ten percent of the entire area, for a total of approximately 16,800 acres. However, due to the complexity and "flexibility" within the Collier County stewardship credit system, "the maximum development footprint cannot be determined." On September 12, 2006, St. Lucie County adopted plan amendments under the RLSA statute. Later that year, the Department reviewed the amendments and found them to be in compliance. In preparing the 2007 Annual Report, the Department undertook a detailed analysis of the St. Lucie RLSA amendments. Even though the amendments had been previously found to be in compliance, the new analysis revealed several shortcomings in the amendments, including their failure to discuss, analyze, or demonstrate how they further the principles of rural sustainability, a primary focus of the program. Also, the amendments were not supported by an analysis of land use need. Instead of projecting population and need, the RLSA adopted an arbitrary cap of 13,248 dwelling units with "no known planning basis." The St. Lucie RLSA is similar to the Collier County program in two respects: it is very complex, and it places no spacial limits on the footprint of the development area. Due to these shortcomings, the Department has placed little, if any, reliance on the St. Lucie County RLSA amendments as an example of proper planning under the RLSA statute. There is no evidence that any development has occurred under the St. Lucie program, and its most recent Evaluation and Appraisal Report dated October 2008 indicated that none may ever occur. In 2007, Highlands and Osceola Counties both applied for and were granted authorization by the Department to designate RLSAs. However, both counties later notified the Department that they would no longer pursue the RLSAs, and the authorizations were withdrawn by the Department. The Rule Development Process In early 2007, the Department became aware of assertions by some landowners that the RLSA program provides for unlimited development within a stewardship area; that RLSA plan amendments were not subject to the growth management provisions in Chapter 163, Florida Statutes; and that RLSAs were not subject to a needs analysis, as required by the law. At the same time, the Department received numerous inquiries from large landowners and/or their representatives regarding RLSA proposals, some as large as 750,000 acres, and for two "new towns" with 100,000 and 60,000 dwelling units, respectively. It also became aware of concerns and criticisms leveled against the one adopted RLSA program in St. Lucie County and rural planning efforts in Collier County. The main criticism was that the system being used for RLSA planning was too complex, which resulted in an expensive, consultant- intensive process that lacked transparency and was largely incomprehensible. Based on the above concerns and criticisms, the Department began gathering information in early 2007 in preparation for rulemaking. On July 19, 2007, it conducted its first workshop. Two other workshops were held, and the first draft of proposed rule 9J-5.026 was issued in January 2008. That proposed rule set forth the minimum substantive requirements for RLSA planning. In September 2008, the Department issued its first draft of proposed rule 9J-11.023, which sets forth the procedural requirements for a local government to seek authorization from the Department to designate an RLSA. After receiving comments from interested parties, the Department noticed the rules for adoption and conducted a rule adoption hearing. On January 7, 2009, Petitioners filed a Petition challenging most of the provisions in the proposed rules. See DOAH Case No. 09-0048RP. Based upon that challenge, which raised new issues not previously brought to the attention of the Department, the Department withdrew the rules and made substantial revisions to address these concerns. This rendered moot Petitioners' earlier challenge. After the revised rules were noticed for adoption, Petitioners filed their Petition challenging numerous provisions within the proposed rules as well as one existing rule. The Objections As summarized in their Proposed Final Order, Petitioners contend (a) that proposed rules 9J-11.023(2), (4), and (5) are invalid because they exceed the Department's grant of rulemaking authority;4 (b) that proposed rules 9J-5.026(7)(b), (7)(c)4., 6., (8)(a), and (9)(a)3., 6., 18., and 19. enlarge, modify, or contravene the specific provisions of law implemented; (c) that proposed rule 9J-5.026(3) is vague and fails to establish adequate standards for agency decisions; (d) that proposed rule 9J-5.026(9)(a)18. is arbitrary; and (e) that existing Rule 9J-5.003(80) contravenes the specific provisions of law implemented. The remaining allegations have been voluntarily dismissed. a. Does proposed rule 9J-11.023 exceed the grant of legislative authority? Petitioners first contend that subsections (2) and (4) in their entirety and the words "If authorized to proceed" in the first sentence of subsection (5) of proposed rule 9J-11.023 are an invalid exercise of delegated legislative authority because they exceed the Department's specific grant of legislative authority. The challenged subsections of the proposed rule read as follows: 9J-11.023 Procedure for the Designation of a Rural Land Stewardship Area. * * * (2) Pre-Notification Actions. Prior to giving official notification of intent to designate a RLSA to the Department, the county(ies) shall conduct at least one noticed public workshop to discuss and evaluate the appropriateness of establishing a RLSA. The county(ies) shall invite the Department of Community Affairs, Department of Agricultural and Consumer Affairs, Department of Environmental Protection, Department of Transportation, Florida Fish and Wildlife Conservation Commission, affected regional planning council(s), and affected water management district(s) (collectively referred to as the "RLSA Interagency Technical Advisory Team") to participate in the workshop. Potentially affected landowners and other interested parties shall be given notice and invited to participate in the workshop. The workshop shall address: the statutory process for designating a RLSA; the planning issues that are likely to arise; and the technical assistance that will be available from state and regional agencies if the county(ies) proceed to designate a RLSA. The county(ies) shall provide opportunities for broad public participation in the RLSA process, which may include a series of public meetings or workshops. The county(ies), in coordination with the affected landowners, shall host a site visit of the RLSA for the RLSA Interagency Technical Advisory Team in conjunction with the workshop or after the notification of intent to designate pursuant to paragraph (4)(b). * * * Review of Notification of Intent to Designate. The Department will provide members of the RLSA Interagency Technical Advisory Team with a copy of the notification of intent to designate within five days after receipt of the notification. If a site visit was not made prior to the notification of intent to designate, the Department will contact the county(ies) within ten days after receipt of the notification of intent to arrange a site visit of the proposed RLSA and surrounding lands. The county(ies) shall ensure proper coordination with the affected landowners. The Department will coordinate the scheduling of the site visit with the members of the RLSA Interagency Technical Advisory Team and request their participation in the site visit. Members of the RLSA Interagency Technical Advisory Team shall be asked to provide the Department oral and/or written comments on the proposed RLSA within 30 days of the receipt of the notification of intent to designate or the site visit, if it occurs after the notification. The Department may also request meetings with the members of the RLSA Interagency Technical Advisory Team to discuss and evaluate the notification and site visit. The Department may also request a conference with the county's(ies') staff(s) to discuss issues and questions that have arisen as a result of the site visit, comments from members of the Interagency Technical Advisory Team and other stakeholders, and the Department's evaluation of the RLSA proposal. Not later than 60 days following the receipt of the notification of intent to designate or the site visit, whichever is later, the Department shall issue a written notification to the county(ies). The Department's notification shall authorize the county(ies) to proceed with a plan amendment to designate the RLSA or inform the county(ies) of the Department's decision not to authorize. The decision shall be based on the information contained in or gained from the notification, site visit, other agency comments, and other information received. The Department shall authorize the county(ies) to proceed if it determines that the proposed RLSA meets the threshold eligibility requirements of subsection 9J-5.026(4), F.A.C. and that there is a reasonable likelihood that the RLSA will further the principles of rural sustainability. If the Department decides to authorize the county(ies) to proceed with a plan amendment to designate a RLSA, the notification will set forth the facts on which the authorization is based, and may include recommendations to the county(ies) regarding the RLSA. The notification will not guarantee that a comprehensive plan amendment(s) to designate a RLSA will be found in compliance by the Department. It will only constitute the Department's authorization to designate a RLSA if the necessary comprehensive plan amendment(s) are adopted and found in compliance pursuant to Section 163.3184, F.S. If the Department decides not to authorize the county(ies) to proceed with a plan amendment to designate a RLSA, the agency's notification will explain the reasons for the decision. Amendment to the Comprehensive Plan: If authorized to proceed, the county(ies) may prepare and process a plan amendment(s) that will be reviewed by the Department pursuant to Section 163.3184, F.S. The county(ies) may, in preparing the plan amendment(s), establish a local visioning process to facilitate the development of a RLSA plan amendment. The Department encourages the county(ies) to seek and utilize technical assistance from the members of the RLSA Interagency Technical Advisory Team in preparing a RLSA plan amendment. 33. Sections 120.52(8)(b) and 120.54(3)(a)1., Florida Statutes, require that the agency list in the rulemaking notice the purported rulemaking authority for the proposed rule. To comply with this requirement, the Department's rulemaking notice cites Sections 163.3177(9) and (11)(h), Florida Statutes, as the specific authority for adopting the rule and Section 163.3177(11)(d)1., Florida Statutes, as the law being implemented. In its Proposed Final Order, the Department relies on Section 163.3177(11)(h) as the specific statutory authority for rulemaking. It provides that the Department "may adopt rules necessary to implement the provisions of [subsection 163.3177(11)]," including the RLSA provisions found in Section 163.3177(11)(d). On the other hand, the law being implemented is quite lengthy and reads as follows: (11)(d)1. The department, in cooperation with the Department of Agriculture and Consumer Services, the Department of Environmental Protection, water management districts, and regional planning councils, shall provide assistance to local governments in the implementation of this paragraph and rule 9J-5.006(5)(l), Florida Administrative Code. Implementation of those provisions shall include a process by which the department may authorize local governments to designate all or portions of lands classified in the future land use element as predominately agriculture, rural, open, open-rural, or a substantively equivalent land use, as a rural land stewardship area within which planning and economic incentives are applied to encourage the implementation of innovative and flexible planning techniques, including those contained herein and in rule 9J- 5.006(5)(l), Florida Administrative Code. Assistance may include, but is not limited to: Assistance from the Department of Environmental Protection and water management districts in creating the geographic information systems land cover database and aerial photogrammetry needed to prepare for a [RLSA]; Support for local government implementation of rural land stewardship concepts by providing information and assistance to local governments regarding land acquisition and assistance to local governments regarding land acquisition programs that may be used by the local government programs that may be used by the local government or landowners to leverage the protection of greater acreage and maximize the effectiveness of rural land stewardship areas; and Expansion of the role of the Department of Community Affairs as a resource agency to facilitate establishment of [RLSAs] in smaller rural counties that do not have the staff or planning budgets to create a [RLSA]. Proposed rule 9J-11.023 describes in detail the process by which a local government is to request Department authorization to designate a RLSA. At issue here are provisions in subsections (2), (4), and (5) of the rule that require a local government wishing to designate an RLSA to conduct a public workshop; cover particular topics during the workshop; host a site visit with designated agencies; and based on the information gathered from this process to then allow the Department, in its discretion, to either authorize or not authorize the local government to begin to prepare and process an RLSA amendment. The latter decision is based on whether the local government has shown "a reasonable likelihood that the RLSA will further the principles of rural sustainability." Petitioners contend that there is no specific grant of rulemaking authority that authorizes the Department to mandate these procedures in the rule or to prevent a local government from proposing and processing an RLSA plan amendment. Instead, they contend that the enabling statute only allows the Department to promulgate rules that are "necessary" to implement the RLSA program, those being a requirement that the county provide notice to the Department that it intends to propose a RLSA plan amendment and a description of the subsequent review process by the Department to determine whether the amendment is in compliance. Section 163.3177(11)(d)1., Florida Statutes, authorizes the Department to provide "assistance to local governments in the implementation of this paragraph and rule 9J- 5.006(5)(l)." (The cited rule, among other things, encourages "innovative and flexible planning and development strategies" that allow conversion of rural and agricultural lands to other uses.) The statute also includes specific authority to establish a "process by which the department may authorize local governments to designate all or portions of lands classified in the future land use element (FLUE] as predominately agricultural, rural, open, open-rural, or a substantively equivalent land use, as a [RLSA] . . . ." The rule accomplishes this purpose by requiring state agency technical assistance, establishing the process for a workshop and site visit, requiring that the county's notification describe the basis for the designation, requiring broad public participation, and assuring, by approval or disapproval of the county's preliminary proposal, that the proposed RLSA will promote the principles of rural sustainability. Notably, had the Legislature intended this authorization process to be the same as the existing compliance review process for conventional plan amendments, there would be no need for this statutory language. The proposed rule does not exceed the Department's grant of rulemaking authority. b. Do certain provisions within proposed rule 9J-5.026(7) and (9) enlarge, modify, or contravene the law implemented? Petitioners further contend that proposed rules 9J- 5.026(7)(b), (7)(c)4., 6., (8)(a), and (9)(a)3., 6., 18., and enlarge, modify, or contravene the specific provisions of law implemented. The challenged rules read as follows: 9J-5.026 Rural Land Stewardship Area (RLSA) * * * Data and Analysis Requirements. * * * Population Projections and Analysis of Land Use Need. Population projections and analysis of land use need shall be prepared in accordance with Rule 9J-5.006, F.A.C., with the following modifications: The amount and extent of allowable development in the RLSA must be based on the 25-year or greater projected population of the RLSA; the anticipated effect of the proposed RLSA must receiving areas, including any committed catalyst projects, infrastructure improvements, or other projects that would attract and support development; the furtherance of the statutory principles of rural sustainability; and the goals, objectives, and policies of the RLSA plan amendment. * * * 4. Land development and other conversion threats whereby rural resources under threat require more incentives via stewardship credits and less threatened resources require lesser incentives. This includes the future threat of low-density sprawl on lands within and surrounding Eligible Receiving Areas; and * * * 6. Values shall be assigned to all of the land in the RLSA. The highest values shall be assigned to the most environmentally valuable land, and to open space and agricultural land where the retention of such lands is a priority. The assignment of values shall be submitted with the RLSA plan amendment as part of the supporting data and analysis. * * * Stewardship Credit System Criteria. (a) Each credit shall represent a defined number of residential units or a defined amount of non-residential square footage. The credit transferee may decide whether to use the credit for a residential or non- residential use in accordance with the land use standards established for the Designated Receiving Area. * * * Goals, Objectives, Policies, and Map. * * * (a) The goals, objectives, and policies shall include the following: * * * 3. Identification of the innovative planning and development strategies to be used within the RLSA, and a process for implementing the strategies, including the adoption of implementing plan amendments, land development regulations, and the issuance of development orders. The process shall include provision for the Department's review of a proposed land development regulation to designate a receiving area for consistency with the RLSA plan amendment. * * * 6. A requirement that Eligible Receiving Areas shall be located on land that is suitable for development and have the lowest land values based on the land values analysis conducted pursuant to paragraph (7)(c). * * * Policies for new towns which comply with the following: As required by subsection 9J-5.003(80) and paragraph 9J-5.006(5)(1), F.A.C., a new town shall be designated on the future land use map. A new town shall be located within a Designated Receiving Area. The plan amendment designating a new town shall include a master development plan that establishes the size of the new town, the amount, location, type, density and intensity of development, and the design standards to be utilized in the new town. Any increase in the density or intensity of land use required to achieve the proposed new town may occur only through the use of stewardship credits assigned or transferred to the Designated Receiving Area either prior to or subsequent to the designation of the new town on the future land use map. New towns shall be surrounded by greenbelts, except for any connecting rural road corridors and to the extent that new towns are adjacent to existing or planned urban development or incorporated areas. A future land use map amendment to designate a new town shall be internally consistent with RLSA provisions of the comprehensive plan. A future land use map amendment to designate a new town shall be accompanied by an amendment to the capital improvements element to incorporate a financially feasible five-year capital improvements schedule for the public facilities necessary to serve the new town and an amendment to the transportation or traffic circulation element to designate any new rural road corridors required to connect the new town with the rest of the RLSA. Provisions to ensure that any use of the underlying densities and intensities of land uses assigned to parcels of land by the county comprehensive plan prior to designation of the RLSA furthers the principles of rural sustainability. * * * The grant of authority for this rule is cited as Sections 163.3177(9) and (11)(h), Florida Statutes, while Sections 163.3177(2), (3), (6)(a), (8), (10)(e), (11)(a), (b), and (d)1., 2., 4., 5., and 6., Florida Statutes, are cited as the laws being implemented. Subsection (2) of the law being implemented provides that "[c]oordination of the several elements of the local comprehensive plan shall be a major objective of the planning process"; subsection (3) is a lengthy provision requiring that a comprehensive plan include a capital improvements element; paragraph (6)(a) describes in detail the matters that must be contained in the FLUE; subsection (8) requires that all elements of the comprehensive plan be based on data appropriate to the element involved; paragraph (10)(e) generally provides that support data and analysis shall not be subject to the compliance review process, but they must be based on appropriate data; paragraph (11)(a) describes the Legislature's recognition of using innovative planning and development strategies; paragraph (11)(b) expresses the intent of the Legislature to allow the conversion of rural lands to other uses, where appropriate, including urban villages, new towns, satellite communities, area-based allocations, clustering, and open space provisions, mixed-use development, and sector planning; and subparagraphs (11)(d)1., 2., 4., 5., and 6. describe the statutory process for creating an RLSA. Subsection (7) of the proposed rule sets forth the data and analysis requirements that apply to all RLSA plan amendments, including data and analysis of existing conditions (subparagraphs (7)(a)1. through 10.); population projections and analysis of land use (paragraph (7)(b)); and a land values analysis (subparagraphs (7)(c)1. through 6.). A land use needs analysis is an integral part of the planning process. Paragraph (7)(b) requires that an RLSA amendment be supported by population projections and an analysis of land use need such that the amount and extent of allowable development must be based on the 25-year or greater projected population of the RLSA, other items, and the anticipated effect of proposed RLSA receiving areas. Petitioners contend that this language contravenes Section 163.3177(11)(d)6., Florida Statutes, amended in 2005, which provides in part that the total amount of development "must enable the realization of the long- term vision and goals for the 25-year or greater projected population of the [RLSA], which may take into consideration the anticipated effect of the proposed receiving areas." See Ch. 2005-290, Laws of Fla. Paragraph (7)(b) does not contravene the terms of the statute. As expressed in the law being implemented, the rule directs that the need analysis shall be based upon, among other things, "the anticipated effect of the proposed RLSA receiving areas " As a part of the data and analysis to be supplied, paragraph (7)(c) requires that an RLSA amendment be supported by a land values analysis that considers six components described in subparagraphs 1. through 6. This in turn requires a comprehensive analysis of rural resources that exist within the RLSA. Subparagraph 4. requires that the analysis include the development threats to rural resources and that resources under threat of conversion receive more incentives from stewardship credits than resources under less of a threat. Petitioners contend that the rule contravenes Section 163.3177(11)(d)6.j., Florida Statutes, because it requires a greater value to be assigned to resources under threat of conversion and would result in other rural and natural and agricultural resources which may have a higher intrinsic value being assigned fewer credits. Specifically, the cited statute requires that "the highest number of credits per acre" should be "assigned to the most environmentally valuable land, or, in locations where the retention of open space and agricultural land is a priority, to such lands." The purpose of the rule is straightforward: to protect those resources that are under the greatest threat and those that are most susceptible to harm over time through land development or other changes, including urban sprawl. Contrary to Petitioners' assertion, the overall analysis does in fact consider all forms of rural resources in determining how the credits will be assigned. The rule implements the statutory directive of attaining the principles of rural sustainability. Subparagraph (7)(c)6. requires, among other things, that the local government submit as a part of the data and analysis supporting the plan amendment "the assignment of values" of all lands in the RLSA. Petitioners contend that assigning values at the time of the amendment "locks in these values" and would require a subsequent plan amendment in contravention of Section 163.3177(11)(d)6., Florida Statutes, which Petitioners argue contemplates the creation of credits after the adoption of the plan amendment. At hearing, however, the Department explained that because conditions will obviously change over time, the land values analysis will be periodically updated and can be changed without a new plan amendment. In their Proposed Final Order, Petitioners concede that given this interpretation of the rule, it "would not be an invalid exercise of delegated legislative authority." See Petitioners' Proposed Final Order, par. 73. Paragraph (8)(a) of the proposed rule requires each stewardship credit to represent either a defined number of residential units or non-residential square footage. Once the credits are created in sending areas, they can be transferred to designated receiving areas to be used to enable development that is consistent with the RLSA goals, objectives, and policies. Petitioners contend that the rule will prohibit mixed-use development in contravention of Section 163.3177(11)(d)4.c., Florida Statutes, which requires that the RLSA goals, policies, and objective provide for a "functional mix of land uses." There is no prohibition of a mix of land uses. In fact, the opposite is true. As clarified by a Department witness, "a mix is essentially required, as you can see from [sub]paragraph (9)(a)17., which describes that a mix of use must be addressed." Tr. at 273. The rule does not contravene the statute. Subsection (9) of the proposed rule generally requires that the RLSA plan amendment contain goals, objectives, policies, and a map. Subparagraphs (9)(a)1. through 21. require that the goals, objectives, and policies identify the innovative planning and development strategies to be used in the RLSA process, including the adoption of implementing plan amendments, land development regulations, and the issuance of development orders. Petitioners allege that subparagraphs 3., 6., 18., and enlarge, modify, or contravene the law implemented. Subparagraph 3. requires "implementing plan amendments" because the Department recognized the fact that the RLSA planning process will consume years or even decades and will require implementing plan amendments to accomplish its purpose. This is especially true here as the RLSA process involves the development of large tracts of land (as much as 100,000 acres or more) that will take years or decades to fully implement and build out. At a minimum, under current law, the "implementing plan amendments" will include a capital improvements element annual update; water supply planning, and the designation of new towns. Except for the requirement that an implementing plan amendment designate a new town pursuant to existing Rule 9J-5.003(80), Petitioners agree that the proposed rule is valid. Because the cited existing rule has been determined to be valid, Petitioners' contention is rejected. See Findings 62-65, infra. Subparagraph 6. provides that the goals, policies, and objectives shall contain "a requirement that the Eligible Receiving Areas shall be located on land that is suitable for development and have the lowest land values on the land values analysis conducted pursuant to paragraph (7)(c)." Petitioners contend that this provision limits the flexibility of local governments to determine the best location for Eligible Receiving Areas and therefore contravenes the provisions in various parts of Section 163.3177, Florida Statutes, that emphasize flexibility. The rule implements the principles of rural sustainability contained in Section 163.3177(11)(d)2., Florida Statutes. Only by directing development to land with the lowest environmental, agricultural, and rural resource value will an RLSA protect ecosystems, habitat, natural resources, and the agricultural economy. The rule does not contravene this statute. Subparagraph 18. requires an RLSA plan amendment to include policies for "new towns," including a requirement that a new town be designated on the FLUM. Petitioners contend that the requirement to designate a new town on the FLUM contravenes Section 163.3177(11)(4)(d)4., Florida Statutes, which provides for the implementation of the innovative planning and development strategies included in existing Rule 9J-5.006(5)(l) through zoning and land development regulations. At hearing, Petitioners narrowed their argument to this one feature in the rule. Because the Department may lawfully require that new towns be designated on the FLUM, subparagraph 18. is consistent with the statute implemented. See Findings 62-65, infra. Subparagraph 19. requires that RLSA plan amendments contain goals, objectives, and policies "to ensure that any use of the underlying densities and intensities of land uses assigned to parcels of land by the county comprehensive plan prior to designation of the RLSA furthers the principles of rural sustainability." Petitioners contend this provision contravenes Section 163.3177(11)(d)6., Florida Statutes, because it "impinges on existing land use rights which is contrary to one of the statutory principles of rural sustainability, namely the 'restoration and maintenance of the economic value associated with rural lands.'" The rule, however, furthers the principles of rural sustainability, as required by Section 163.3177(11)(d)1., Florida Statutes, since it requires that all lands within an RLSA, whether or not in a Designated Receiving Area, be developed in a manner that furthers those principles. It does not contravene the cited statute. Petitioners also contend that subparagraph 19. contravenes Section 163.3161(9), Florida Statutes, which requires, among other things, that all programs be applied "with sensitivity for private property rights and not be unduly restrictive." Petitioners surmise that the rule may operate to displace underlying density within the RSLA regardless of the use of the RLSA credit system. However, the rule does not displace any underlying density; it only requires that underlying rights be exercised consistent with the RLSA. More specifically, existing densities may be used in any manner that furthers the principles without displacing any of those densities. The rule does not contravene either statute. Is proposed rule 9J-5.026(3) vague and does it have inadequate standards for agency decisions? Petitioners next contend that subsection (3) of proposed rule 9J-5.026, and specifically certain words within the definition of the term "greenbelt," are vague and fail to establish adequate standards for agency decisions. That provision reads as follows: 9J-5.026 Rural Land Stewardship Area (RSLA) * * * (3) Definitions * * * (d) "Greenbelt" means a border of permanently undeveloped land sufficient in size to effectively preclude the expansion of urban development into the surrounding rural lands and to provide an effective buffer to protect the surrounding rural resources from development impacts. A greenbelt is an undeveloped area that surrounds an urban area, a new town, or other urban development and is meant to separate the urban developed area from the surrounding area to provide a border that protects surrounding rural lands from urban development. Petitioners contend that the use of the adjectives "sufficient," "effectively," and "effective" to describe the greenbelt buffer are vague and lack standards to guide agency determinations. In common usage, the word "sufficient" means that the greenbelt is sufficient in size to accomplish its purpose of precluding the expansion of urban development into the surrounding rural lands. Similarly, the word "effectively" means that the use or creation of a buffer to protect urban encroachment on rural lands will be accomplished in an effective manner. Likewise, the word "effective" simply means that the greenbelt achieves the purpose of creating a buffer. These phrases are easily understood by persons of ordinary intelligence, particularly when read in context with other provisions of the rule. See, e.g., Cole Vision Corp., et al. v. Dept. of Bus. and Prof. Reg., 688 So. 2d 404, 410 (Fla. 1st DCA 1997). Petitioners contend, however, that the rule fails to explicitly include the standard that site-specific data would be considered in determining the "sufficiency" of a buffer. However, this level of detail is not needed since site-specific information is typically considered and applied by the local government and Department through the planning process and might include, for example, the nature of the urban area, the potential impacts if the urban area is extended, the nature of the surrounding land, and other similar factors. The rule is not so vague or lacks sufficient standards as to be invalid. Is proposed rule 9J-5.026(9)(a)18. arbitrary? Petitioners further contend that subparagraph (9)(a)18. of proposed rule 9J-5.026 is arbitrary. That rule reads as follows: 18. Policies for new towns which comply with the following: As required by subsection 9J-5.003(80) and paragraph 9J-5.006(5)(1), F.A.C., a new town shall be designated on the future land use map. A new town shall be located within a Designated Receiving Area. The plan amendment designating a new town shall include a master development plan that establishes the size of the new town, the amount, location, type, density and intensity of development, and the design standards to be utilized in the new town. Any increase in the density or intensity of land use required to achieve the proposed new town may occur only through the use of stewardship credits assigned or transferred to the Designated Receiving Area either prior to or subsequent to the designation of the new town on the future land use map. New towns shall be surrounded by greenbelts, except for any connecting rural road corridors and to the extent that new towns are adjacent to existing or planned urban development or incorporated areas. A future land use map amendment to designate a new town shall be internally consistent with RLSA provisions of the comprehensive plan. A future land use map amendment to designate a new town shall be accompanied by an amendment to the capital improvements element to incorporate a financially feasible five-year capital improvements schedule for the public facilities necessary to serve the new town and an amendment to the transportation or traffic circulation element to designate any new rural road corridors required to connect the new town with the rest of the RSLA. As noted earlier, this rule sets forth the requirements for policies in the RLSA plan amendment that are applicable to new towns. Petitioners contend that the rule is arbitrary because it "selectively emphasizes" a new town as only one of several innovative and flexible planning strategies set forth in existing Rule 9J-5.006(5)(l). To be arbitrary, a rule must not be supported by logic or the necessary facts. See § 120.52(8)(e), Fla. Stat. Here, the more persuasive evidence shows that new towns are much larger development types; they are more intense than other development forms; and they will likely generate greater impacts. In an RLSA, they take on even more significance since the planning goal is to further the principles of rural sustainability. Collectively, these factors form a sufficient basis and rationale for giving new towns different treatment than other development forms that are smaller, have fewer uses, are less intense, and are more likely to have lesser impacts. The proposed rule is not arbitrary. e. Does existing Rule 9J-5.003(80) contravene the specific provisions of law implemented? Finally, Petitioners have challenged existing Rule 9J- 5.003(80), which became effective in 1994, on the ground that it contravenes the specific provisions of law implemented. That rule defines the term "new town" as follows: (80) "New town" means a new urban activity center designated on the future land use map and located within a rural area, distinct and geographically separated from existing urban areas and other new towns. A new town is of sufficient size, population and land use composition to support a variety of economic and social activities consistent with an urban area designation. New towns include basic economic activities; all major land use categories; and a centrally provided full range of public facilities and services. New towns are based on a master development plan. The specific authority for the rule, when adopted, was Section 163.3177(9) and (10), while the law being implemented was identified as Sections 163.3177 and 163.3178, Florida Statutes. Because Section 163.3178 involves coastal management, and a new town would probably not be located in a coastal zone, it has marginal relevance to this proceeding. The Department relies principally on Section 163.3177(6)(a), Florida Statutes, which requires, among other things, that "various categories of land use shall be shown on a land use map or map series."6 The existing definition provides, in part, that a new town will include "all major land use categories, with the possible exception of agricultural and industrial." Because they include numerous land use categories, new towns are by definition a mixed-use land use category. See Fla. Admin. Code 9J-5.006(4)(c). Mixed-use land use categories must be designated on the FLUM. See § 163.3177(6)(a), Fla. Stat.("The future land use plan may designate areas for future planned development use involving combinations of types of uses"). As noted above, a new town is recognized in existing Rule 9J-5.006(5)(l) as an innovative and flexible planning option. Because the Legislature referenced this rule provision with approval four times in the RLSA statute, it must be presumed that the Legislature was expressing approval of the existing definition with the mapping requirement. See §§ 163.3177(11)(d)1. (two separate references); 163.3177(11)(d)4.c.; and 163.3177(11)(d)4.e. The rule does not contravene the statute being implemented.
Findings Of Fact This cause originated in a disciplinary action resulting from an administrative complaint filed by the Department of Professional Regulation, Division of Real Estate against the Petitioners herein, Malcolm Lewis Hardy and Aquatic Realty, Inc. The Petitioners herein were the Respondents in the licensure disciplinary proceeding. That proceeding was resolved in their favor by the Recommended Order of the Hearing Officer and by the Final Order filed April 15, 1988 by the Department of Professional Regulation. They have accordingly filed a request for attorney's fees and costs on the ground that the prosecution involved in the underlying case was not "substantially justified." The cause came on for a brief hearing. The parties elected to dispense with calling witnesses at the hearing because they entered into a factual stipulation whereby all germane facts were placed of record. It was thus established that Petitioners Malcolm Lewis Hardy and Aquatic Realty, Inc. (hereafter Hardy) were the Respondents in a licensure disciplinary action brought against them by the above-named Respondent. That disciplinary action was resolved by Final Order filed April 15, 1988 by the Department of Professional Regulation. The Respondents in that case, the Petitioners herein, were totally absolved of any wrongdoing with regard to the charges in the administrative complaint in that proceeding. A copy of that Final Order was mailed by the agency to "Diane Cleavinger, Esquire, 300 East 15th Street, Panama City, Florida 32405." Ms. Jan Nelson, a secretary at that address, and employed by Ms. Cleavinger's former law firm, received a copy of that order and executed the return receipt appearing on the envelope on April 18, 1988. Ms. Nelson was not Ms. Cleavinger's secretary, but rather the secretary of Ms. Fitzpatrick, one of Ms. Cleavinger's former law partners. In any event, Ms. Nelson executed the return receipt on April 18, 1988, but Ms. Cleavinger never received the Final Order nor notification of its filing or receipt by Ms. Nelson. Mr. Hardy never became aware of or received a copy of the Final Order either, until the agency sent another copy to him on September 12, 1988. The affidavit and request for attorney's fees was filed within sixty days of that date. Ms. Cleavinger had left her law firm on January 1, 1988 to become a Hearing Officer with the Division of Administrative Hearings. Mr. Hardy only learned of the Order when he made a direct contact with the Department of Professional Regulation and they learned that he had not received the Final Order. It was thus mailed to him on September 12, 1988 and received on September 14, 1988. That Order dismissed all claims against Hardy and Aquatic Realty, Inc. and thus those parties are in fact "prevailing, small business parties," within the meaning of Section 57.111, Florida Statutes. It was stipulated at hearing, as well, that these Petitioners are small business, prevailing parties and that they incurred attorney's fees in the amount of $1,642.04 for services rendered by Ms. Cleavinger when she represented them in the underlying case-in-chief and that costs amount to $333.71. Additionally, Mr. Hardy further incurred attorney's fees and costs in the amount of $500 in connection with the pursuit of this fee claim by attorney Whitton. It was stipulated that that amount is reasonable. Additionally, the Department accepted its burden of establishing that its action was "substantially justified," within the meaning of Section 57.111, Florida Statutes, and have stipulated that they have not done so. Thus the only issue for resolution concerns whether the claim of Hardy was time-barred.
The Issue Whether or not the Respondent, Kenneth Kasha, is now and was at all times alleged, a registered real estate broker, and from January 31, 1974, to January 7, 1975, an active firm member of International Land Services Chartered, Inc., a registered corporate broker, and was acting in that capacity. Whether or not from January 31, 1974, to January 7, 1975, the Respondent, in the capacity of active firm member of International Land Services Chartered, Inc., solicited by telephone and mail, property owners nationwide, on the subject of their real property interest in the State of Florida, to obtain a fee in return for a listing to sell property; by representing and holding out to the property owners that a bona fide effort would be made to sell the property so listed with International Land Services Chartered, Inc. Whether or not the representation holding out that a bona fide effort would be made to sell the property listed with international Land Services Chartered, Inc., was false and was known to be false when made. Whether or not property owners acted in reliance of the comments by Respondent, Kenneth Kasha, and listed their property for sale with International Land Services Chartered, Inc. and paid a listing fee. Whether or not the solicitation of property owners nationwide was wholly a scheme to fraudulently secure money from the public, i.e., the advance listing fees, for reason that no bona fide effort was made to sell the properties so listed with International Land Services Chartered, Inc. Whether or not by reason of the foregoing, the Respondent, Kenneth Kasha, is guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing, trick, scheme or devise, or breach of trust in a business transaction in this state; and has violated the duty imposed upon him by law or the terms of a listing contract in a real estate transaction; and has formed an intent, design, or scheme to engage in said misconduct and has committed an overt act in furtherance of such intent, design, or scheme in violation of 5475.25(1)(a), F.S. Whether or not for the reason of the foregoing factual allegations set forth above, the Respondent is guilty of a conduct of practices which show that he is so dishonest and untruthful that the money, property, transactions and rights of investors and those with whom he may sustain a confidential relation may not safely be entrusted to him, all in violation of 5475.25(3), F.S.
Findings Of Fact From January 31, 1974, to January 7, 1975, the Respondent, Kenneth Kasha, was an active firm member of International Land Services Chartered, Inc. and was acting in the capacity of registered corporate broker. He was a holder of certificate number 0133731 during that time sequence. That license was held with the Florida Real Estate Commission, the Petitioner. Beginning with January 31, 1974, and continuing to the present, Kenneth Kasha was also the holder of what is now certificate number 0046189, held with the Florida Real Estate Commission by Kenneth Kasha as real estate broker to trade as Florida Landowners Service Bureau. During the tenure of his affiliation with International Land Services Chartered, Inc., from January 31, 1974, to January 7, 1975, Kenneth Kasha was the Secretary of that corporation. (The facts of his Iicensure by the Petitioner and his affiliation with the International Land Services Chartered, Inc., are more completely described in the Petitioner's Exhibits 4 and 10, admitted into evidence.) In the pendancy of his service for the above-mentioned corporation, Kenneth Kasha was involved in the advertising of properties which had been solicited from out-of-state owners who owned land in the State of Florida. His involvement in this advertising is established by the Respondent's Exhibit No. 10 admitted into evidence. Through this exhibit it is demonstrated that the International Land Services Chartered, Inc., was advertising with the National Multiple Listing, Inc. More specifically, the invoices in the exhibit have assigned reference numbers which correspond to the advertising sheet which was placed with the National Multiple Listing, Inc. These sheets would show a number of listings of property which had been solicited from out-of-state owners who had paid a fee for the right to have their properties listed through International Land Services Chartered, Inc., who in turn advertised in National Multiple Listing, Inc. The circulation of those listings may he traced by taking the reference number in the left margin on the individual listing sheet of National Multiple Listing, Inc., found in the Respondent's Exhibit No. 10, and comparing this with the certificates of circulation which are Respondent's Composite Exhibit No. 12, and which have a comparable reference number affixed. By doing this, it can be seen that the circulation of the individual listing sheets by National Multiple Listing, Inc., numbered as many as 2,500 contacts. An examination of the advertising done through National Multiple Listing, Inc., demonstrates that a potential purchaser could not determine the exact location of the land. At best that purchaser could locate the subdivision and development, municipality and/or county and state and the general size of the tracts of land. Some of the property does not have a purchase price. Therefore, the quality of the advertising that was done is somewhat suspect. At the time the International Land Services Chartered, Inc., was billed, it was in the name of Kenneth Kasha, who tendered payment in behalf of International Land Services Chartered, Inc. Moreover, when the International Land Services Chartered, Inc., had signed an agreement with National Multiple Listing, Inc., to have the latter corporation do the advertising for International, it had signed in the person of Kenneth Kasha and took effect on March 1, 1974. The period of the contract was for one year and this is shown by Respondent's Exhibit No. 8 admitted into evidence. A further understanding of Kenneth Kasha's involvement with the listings of out-of-state owners of Florida property through International Land Services Chartered, Inc., may be found in the testimony of Marvin Rothstein. Roths to in worked for the corporation approximately 3 or 4 weeks full time and then part time and in total obtained 10 or 15 listings for the benefit of the corporation. Mr. Rothstein described the technique for listing the out-of-state owners of Florida property with International Land Services Chartered, Inc. (These listings have been referred to as "advance fee" listings, and will be so referenced in the balance of this Recommended Order.) Mr. Rothstein had seen an advertisement in the paper placed by International Land Services Chartered, Inc., advertising for the employment of real estate salesmen. He answered that advertisement and was interviewed by Kenneth Kasha for a job with the subject corporation. Kasha explained to Rothstein that his duties would be to contact people by phone and find out if they would like to have their property listed. There were 4 or 5 other salesmen involved in International Land Services Chartered, Inc's, employ whose function it was to make the contacts and solicit listings. The salesmen worked in the evening hours 3 or 4 hours a night and would call the out-of-state owners and ask if they wanted to list their property with the corporation, International Land Services Chartered, Inc. The corporation had given the salesmen so-called lead cards to contact the people. (The office in which the salesmen were ,working was a very small office with 5 or 6 phones.) Mr. Rothstein described the contact with the out-of-state owners to be one to obtain a listing, in opposition to an effort to try and sell the property of the out-of-state owner. Mr. Kasha was the supervisor of the activities of the salesmen who were working at night. Through the Rothstein testimony, it is established that there was a script which the salesmen were called upon to follow. The salesmen would introduce themselves to the prospective landowner/client and ask if the landowner would be willing to list their property for resale. If the owner was interested, certain materials were mailed to the owner for their perusal, prior to any agreement for resale. The mailouts were made after positive responses that Mr. Rothstein would be given when he made his inquiry about listing the property. Mr. Rothstein is unfamiliar with the materials that were mailed out. He was never responsible for making a second contact with the parties initially solicited. He does know that a fee was charged for listing the property with International Land Services Chartered, Inc., and the purpose of the fee was explained to the parties to be for expenses for listing the property and for whatever other expenses that might be incurred by the corporation. Rothstein is unfamiliar with what the exact expenses would have been for the corporation to fulfill the functions of taking care of listings. To Rothstein's recollection, the amount of fee for listing was $25 or $50, that is the amount he would receive for obtaining a listing agreement with the out-of-state owner. He is not certain what the International Land Services Chartered, Inc., received as their portion of the listing fee. There was no agreement that Rothstein himself would be compensated by commission should the property be sold. Rothstein was also unfamiliar with the method which the corporation used to arrive at an asking price for the listed property. Rothstein was unaware of any appraisals that may have been done by the corporation during the tenure of his employment with the corporation. His knowledge of the advertising method was that there were multiple listings. These multiple listings would equate to the form of listings placed with the National Multiple Listing, Inc. One other matter that was discussed in the initial solicitation, was the fact that the possible purchasers of the land were constituted of foreign as well as domestic buyers. This comment was in connection with the overall statement that the owners were being solicited for a listing to bring about the resale of the property. Rothstein said that he did not know of any sales of the property during the time he worked for International Land Services Chartered, Inc. An examination of the Petitioner's Exhibit No. 6, which is a profit and loss statement for the period in question, indicates that income derived from the International Land Services Chartered, Inc.'s business activities far exceeded advertising and other expenses labeled as selling expenses. That document, Petitioner's Exhibit No. 6, does not indicate whether there was income derived from sources other than the "advance fee" listings. Moreover, there was no testimony given in the course of the hearing which would clearly identify the amount of money that was received from owners who desired the services of the "advance fee" listing. Finally, the Petitioner has failed to demonstrate through competent evidence the true nature of the specific details of the follow-up written information which was submitted to the potential client once that client had been solicited in the initial contact phase. On balance there is insufficient testimony to prove that the solicitation of the property owners was a scheme to fraudulently secure money from the public through "advance fee" listings, or that no bona fide effort was made to sell the properties that were listed with International Land Services Chartered, Inc. Consequently, the Petitioner has failed to show that the Respondent, Kenneth Kasha, is guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing, trick, scheme or device or breach of trust in a business transaction in this state; or that Kenneth Kasha has violated the duty imposed on him by law or the terms of listing contract in a real estate transaction, or that he has formed an intent, design or scheme to engage in said misconduct or has committed an overt act in furtherance of such intent, design, or scheme in violation of 475.25(I)(a), P.S. Furthermore, the Petitioner has failed to establish that Kenneth Kasha is guilty of a course of conduct or practice which shows that he is so dishonest and untruthful that the money, property, transactions, and rights of investors and those with whom he may sustain a confidential relation may not safely be entrusted to him, in violation of 475.25(3), P.S.
Recommendation It is Recommended that the Administrative Complaint brought against the Respondent, Kenneth Kasha, who is now licensed by the Petitioner, Florida Real Estate Commission, under certificate number 0046189, as a real estate broker, he dismissed and set aside. DONE and ORDERED this 17th day of February, 1973, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Richard J. R. Parkinson, Esquire Florida Real Estate Commission 400 West Robinson Avenue Orlando, Florida 32801 Louis Guttmann, Esquire Florida Real Estate Commission 400 West Robinson Avenue Orlando, Florida 32801 Mr. Kenneth Kasha Post Office Box 611238 North Miami, Florida 33161
Findings Of Fact Immediately before going to work for International Land Brokers, Inc., respondent was employed as a factory worker. Earlier, he had worked as a real estate salesman, including two stretches with Property Resale Services, Inc. During respondent's original employment by Property Resale Service, Inc., he telephoned nonresident landowners and tried to persuade them to list their property for sale with Property Resale Service, Inc. Landowners who listed their property paid Property Resale Service, Inc., a listing fee which was to be subtracted from the broker's commission, if any, in the event of sale. Respondent left the employ of Property Resale Service, Inc., because he "didn't think that they were in the business to actually sell properties." (R80) He later returned to Property Resale Service, Inc., but only after "[t]hey opened up a new . . . operation, calling people up, trying to sell property . . ." (R83). Respondent was exclusively connected with International Land Brokers, Inc., as a real estate salesman, from November 17, 1975, until May of 1976. At International Land Brokers, Inc., respondent worked from six to ten weekday evenings and sometimes Saturdays and Sundays as well. The floor of the "one and only office" (R89) occupied by International Land Brokers, Inc., measured 15 to 25 feet by 35 to 50 feet. The office was partitioned into 12 cubicles, each with a desk and a telephone. Respondent and other real estate salespersons sat at the desks and telephoned out-of-state landowners, working from a list of names they had been given. On the telephone, respondent identified himself as a real estate salesman and encouraged landowners to list their property for sale with International Land Brokers, Inc. After making initial telephone contact with a prospect who showed interest, respondent and the other salespersons noted interested prospects' names and addresses on slips of paper. Clerical personnel mailed packets of promotional material to these persons the next working day. The materials in these packets speak of "extensive advertising and sales promotions" conducted by International Land Brokers, Inc., in its purported efforts to sell property listed with it. Respondent was familiar with these materials because samples were posted on the walls of the cubicles respondent and other salespersons used when telephoning. After allowing time for the packet to reach its destination, salespersons followed up by making another telephone call to answer questions about the materials that had been mailed, and to encourage the property owner to list the property for sale with International Land Brokers, Inc. Landowners who agreed to list their property paid International Land Brokers, Inc., a listing fee, which was to be substracted from the broker's commission, in the event of sale. When respondent began working for International Land Brokers, Inc., the advance listing fee was two hundred fifty dollars ($250.00). During his employment, the advance listing fee climbed to two hundred eighty-five dollars ($285.00), and then to three hundred fifty dollars ($350.00). Whenever International Land Brokers, Inc., received an advance listing fee of three hundred fifty dollars ($350.00), respondent received one hundred twenty dollars ($120.00), if he was the salesperson who made the initial telephone call and persuaded the owner to list his property. A salesperson making initial telephone contact with a prospect was known as a "fronter;" and a salesperson who called afterwards to obtain the listing was known as a "driver." Although respondent "never got any fronters commissions," (R100), he successfully solicited between 35 and 50 listings. Walter J. Pankz, a real estate broker and president of International Land Brokers, Inc., supervised respondent and the other salespersons, and monitored some of their conversations with prospects "to make sure that there wasn't heavy overdo." Petitioner's Exhibit No. 2, p.33. Respondent called Mrs. Joan Stevenson of Danvers, Massachusetts, two or three times before he succeeded in persuading her to mail a check to International Land Brokers, Inc., which she did on January 31, 1976. In the course of these telephone conversations, respondent told Mrs. Stevenson that properties in the vicinity of hers were generally being sold within four to six months of their listing, even though respondent knew that this was untrue. Respondent told Mrs. Stevenson that her "property is good property and that if he had to hold onto it any more than six months he wouldn't even bother taking a listing on it." Petitioner's Exhibit No. 3, p. 11. Respondent inquired of Walter J. Pankz whether any of the property being listed with International Land Brokers, Inc., was being sold. Pankz answered that "we were working at a few going back in December, January" and that he personally "was working on transactions of reselling solicited properties" (Pankz's efforts resulted in the sale of exactly two parcels of real estate.) One night respondent noticed "cases of catalogs all over the place," (R108), but he does not know if they were ever mailed. Respondent testified that he thought these people were making a pretty earnest effort in trying to get the pro- perty sold, and especially when they started talking about opening up another phone operation to sell these properties . . . [T]hey kept talking about it and talking about it, but it never did materialize. On or about January 4, 1976, respondent saw a news report to the effect that petitioner "was cracking down on the advance-fee business." (R103) As early as December of 1975, respondent had heard of action by the authorities to discourage advance fee real estate operations. Although he was told by "the attorney for International Land Brokers" (R104) that "everything was above- board," (R105) respondent had ample reason to know that International Land Brokers, Inc., had no good faith "operation" for selling properties listed with it. Respondent is now employed as a real estate salesman in Tallahassee and has earned the respect of the real estate broker who employs him.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner revoke respondent's real estate salesman's license. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 15th day of September, 1977. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Mr. Louis B. Guttman, III, Esq. Mr. Richard J.R. Parkinson, Esq. Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Mr. Robert J. Vossler, Esq. 110 North Magnolia Drive Suite 224 Tallahassee, Florida 32304
Findings Of Fact In 1984, the Petitioners, a married couple, purchased a parcel of real property zoned agricultural located in Clay County. The Petitioners' parcel, which is the subject of the application for vested rights, is a fraction over twenty-two acres and is bounded on the east side by the St. John's River, on the west side by County Road 209, and by other private property on the north and south which is not subject to the application under consideration. An abandoned rail road right of way runs northwest to southeast across the parcel approximately half way between the paved road on the western boundary of the property and the river which forms the eastern boundary. A sand road has been constructed between the paved road and the abandoned railroad right of way. The land uses for agricultural property included single family residential development with one single family residence per acre until the enactment of the comprehensive plan discussed in detail below. The Petitioners purchased the parcel for the purpose of constructing a single family, and subdividing and selling the remaining portions of the parcel as home sites. The Petitioners obtained two mobile home permits (move-on permits) in 1986 and a building permit for the construction of a barn in 1989 from Respondent. In addition, the Petitioners obtained a permit for the construction of a dock from the Corps of Engineers. The Petitioners had a road constructed to access the interior of the property prior to 1990. The Petitioners later purchased equipment including a back hoe, grader, and dump trucks in 1990 for improving the road and improving drainage. The Petitioner, Robert I. Moore, completed improvements to the sand road with his own labor incurring costs for fill, fuel, and equipment repairs. The Petitioners ordered a survey which was completed in 1991. They then conveyed property between themselves via quit claim deeds to subdivide the property into nine lots, A through I. Three lots were created along the river, Lot I (3.59 acres), Lost H (3.16 acres), and Lot G (2.97 acres). Three lots were created along the paved road: Lot C running from the paved road to the rail road right of way containing 2.87 acres; Lot B running east from the paved road approximately 140 feet containing 1.11 acres; and Lot A running east from the paved road approximately 150 feet containing 1.09 acres. Lot F is located east of Lot A, and runs east approximately 800 feet containing 4.60 acres. Lot D is located east of Lot B and runs east approximately 300 feet containing 1.42 acres. Lot E is located east of Lot D, runs east approximately 200 feet to the rail road right of way, and contains approximately 1.42 acres. The surveyed subdivision of the parcel was recorded on December 31, 1991, together with private road maintenance agreement and quit claim deeds. The mobile homes were located on lots B and D, and barn had been built on Lot F. The amended application combined Lots A and F, and Lots D and E. The Petitioners spent money and expended energy to make improvements to the property in pursuit of their objective of developing the parcel. Their efforts included developing a graded, sand road through the property, improving the drainage, having a survey of the property conducted, and engaging an attorney to advise them. In June 1991, the Respondent adopted a comprehensive land use plan which was submitted to the Department of Community Affairs (DCA) of the State of Florida. The DCA is charged by statute to determine if county comprehensive planning ordinances conform to state requirements. Those counties whose plans did not conform could amend them to conform; however, if the county failed to bring its plan into compliance, sanctions could be invoked by the state against the county. The Respondent's initial plan as adopted retained agricultural zoning for the parcel owned by Petitioners, and the Petitioners were aware of this having obtained several planning maps reflecting the proposed land uses for various areas of the county including their parcel. The Petitioners' subdivision complied with all existing requirements of the county to include those contained in the county's original comprehensive land use plan. The county's comprehensive land use plan provided that a lot of record included "a non-platted piece, parcel, lot, or tract of land described by metes and bounds or other similar means in a legally recorded deed as of July 1, 1991." The Petitioners' subdivision was not recorded until December 31, 1991. The county's comprehensive land use plan was not accepted by the DCA which received written objections, recommendations and comments (ORC Report) of the DCA. These objections included the density allowed in rural residential land use classification. On December 5, 1991, the Respondent and its Planning Commission held a joint workshop, advertised and open to the public, at which a modification to the density provisions of the comprehensive land use plan was considered for the purpose of addressing the objections by the DCA. The DCA's recommendation to reduce density in rural areas from one single family residence per acre to one to every five acres based upon a point system was specifically considered. On January 23, 1992, following a public hearing as required by statute, the Respondent adopted the amended plan containing the reduced density for rural areas based upon the point system. This changed the density of the Petitioners' parcel to one single family residence per five acres. This amended plan retained the definition of "lot of record" first discussed in March 1991; later considered at the public hearing on the plan in May 1991; and adopted in the original comprehensive plan. The assessed value of the parcel in 1994 was $274,200; in 1993 it was $158,462; and in 1992 it was $96,921. The expenditures for fill, labor, and repairs to construct and improve the road cost $23,425. The purchase price of the heavy equipment used by Mr. Moore to improve the road was $26,200 including $4,595 for repair of the loader/backhoe which is considered part of "purchase price." Although some of the heavy equipment was purchased used, and would have a lower rate of depreciation, the equipment lost value being used. This depreciation was part of the costs of doing the work. A declining depreciation rate of 15 percent in 1989, 12 percent in 1990, and 10 percent in 1991 was used to arrive at the depreciation costs, which were approximately $8,500. The capital costs of building the dock were excluded; however, the taxes paid to Clay County for the past two years, $5,023, were included. The total developmental costs would be approximately $37,000 as of the end of 1991. Expenditures after adoption of the plan are not considered.
Recommendation Based upon the consideration of the findings of facts and the conclusions of law, it is, RECOMMENDED: That the amended application for equitable vested rights be approved in part, and denied in part as follows: That Petitioner be granted equitable relief to subdivide their 22-acre parcel into 4 lots each containing approximately 5 acres using the existing road which they constructed as a boundary between the lots, but that they not be permitted to exceed the plan's density requirements. DONE and ENTERED this 10th day of January, 1995, in Tallahassee, Florida. STEPHEN F. DEAN 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 10th day of January, 1995. APPENDIX The parties filed proposed findings of fact which were read and considered. The following states which of those findings were adopted, and which were rejected and why: Petitioner's Findings Recommended Order Paragraphs 1-4 Paragraphs 1,2,3,4,7 Paragraph 5,6 Paragraphs 6,5 Paragraph 7 Paragraph 8 Paragraph 8 It is the hearing officer's under-standing that the ordinances were adopted prior to submission to DCA, which could state objections to the county's ordinance. Mr. Moore was aware of the plan and its impact upon his property. Paragraph 9 Paragraphs 11,12,14 Paragraph 10 Paragraphs 15,16 Paragraph 11 Paragraphs 17,18 Paragraph 12 Paragraph 13 Paragraph 13 Paragraphs 11,12 Respondent's Findings Recommended Order Paragraphs 1-3 Paragraph 1-4 Paragraphs 4-8 Subsumed in Paragraphs 5-10 Paragraphs 9-12 Subsumed in Paragraphs 11-14 Paragraph 13 Irrelevant. Paragraph 14 Paragraphs 14,18 Paragraph 15 Discussed in Conclusions Paragraphs 16-19 Paragraphs 15-18 Paragraph 20 Paragraph 8 Paragraph 21 Subsumed in Paragraph 7 Paragraph 22 Paragraph 9
The Issue Whether or not Respondent has violated Sections 472.033(1)(a), and (h), and 455.227(1)(b), Florida Statutes, and Rules 21HH-2.001(3) and 21HH-6.003, Florida Administrative Code, by failure to comply with a valid Final Order of the Board of Professional Land Surveyors.
Findings Of Fact Petitioner is the state agency charged, in conjunction with the Board of Professional Land Surveyors, with the responsibility to prosecute administrative complaints pursuant to Chapters 455 and 472, Florida Statutes, and the rules promulgated pursuant thereto. At all times material to the Amended Administrative Complaint, Respondent Bertin C. Tash was licensed as a professional land surveyor in the State of Florida, holding license number LS 0002292. By Final Order entered December 31, 1985, the Board of Professional Land Surveyors issued a Final Order in case number 0049353 (previously DOAH Case No. 85-0285), a prior disciplinary action against Respondent. Among other terms of that Final Order, Respondent was placed on probation for twenty-seven months and further was required during the course of that twenty-seven month probation to: ... submit 25 surveys representative of his land surveying practice which shall be accompanied by field notes and record plats to the board for its review. Additional information regarding the surveys may be requested. Five surveys shall be submitted within three months from the filing of this final order; thereafter, five surveys shall be submitted at six month intervals during the period of probation. Respondent shall attend the first available continuing education seminar in his area on the minimum technical standards within 12 months from the filing of this order or as soon after as possible. Evidence of Respondent's attendance and successful completion of the course shall be furnished to the board through the proctor or instructor of the continuing education course... (Emphasis supplied.) It is noted that although the "certificate of service" for the copy of the Final Order admitted in evidence as part of Petitioner's Exhibit 3 is unsigned, Respondent admitted receipt thereof, that no appeal was taken therefrom, and that he understood the terms of the Final Order. Twenty-seven months from December 31, 1985 would fall on April 1, 1987. Twelve months from December 31, 1985 would fall on January 2, 1986. Respondent initially complied with the Final Order by submitting two sets of five surveys, the second in December, 1986. However, some type of dispute arose between Respondent and the Board's monitor of Respondent's probation about whether the monitor could require corrections to be done by Respondent to those surveys already submitted and about whether or not Respondent could be required to submit his field notes for the surveys. Respondent seems to have resisted the clear language of the Final Order (see emphasized language in Finding of Fact No. 4, supra) upon a personal belief that these requirements were unconstitutional, invaded his privacy, or exposed him to ethical charges by his clients. There is nothing in the record, to support this ideation of Respondent, and eventually, Respondent altered his position. Respondent did not submit any further surveys until November, 1988 after the instant case was already in progress, at which time he had modified some of his views with regard to field notes. He then attempted to comply with the Final Order by submitting corrected surveys. However, in error, he sent these surveys not to the Board, but to the attorney for the Department of Professional Regulation where they were retained. This submittal was considerably beyond the April 1, 1987 probationary period and whether considered corrections of the second five surveys or an additional five surveys would not constitute the twenty-five surveys required by the prior Final Order. The Respondent failed to complete a seminar on minimum technical standards between the entry of the Final Order on December 31, 1985 and the date of formal hearing on December 14, 1988. Petitioner submitted proof that such courses were available in West Palm Beach, Respondent's hometown, on May 20, 1987, and in adjoining Broward County on May 21, 1988. Clearly, neither of these courses was available to Respondent during the probationary time frames set out in the Final Order and Findings of Fact Nos. 4 and 5 supra. Petitioner submitted no proof of the availability of other such courses during the appropriate time frames, but it appears undisputed that these were the only qualifying courses "in his area" and that the Board would have accepted Respondent's late completion of either course as his compliance with the continuing education requirement in the Final Order. The Board even went so far as to reserve space for Respondent at the May 21, 1988 course in Broward County. Respondent's testimony that he was too ill to attend the May 30, 1987 course is unrefuted. Respondent's testimony that he had, no private means of transportation to the May 21, 1988 course is also unrefuted but he did not show unavailability of public transportation. Moreover, Respondent testified that until the date of formal hearing, he had resisted, upon grounds of his personal ethical ideation, the concept of learning from, or submitting himself to critiques by, any local professionals who conducted continuing education seminars in land surveying.
Recommendation That the Board of Professional Land Surveyors enter a Final Order finding Respondent guilty of two counts of violating Section 472.003(1)(h) Florida Statutes, and imposing a three-month suspension of Respondent's license, subject to an extension of such suspension to a maximum of one year or until Respondent completes the continuing education course required by the prior Final Order, whichever comes first, and imposing thereafter three years' probation to follow immediately upon the lifting of the suspension, during which three years' probation Respondent shall be required to submit an appropriate number of surveys to be determined by the Board for review by the Board. DONE and ENTERED this 13th day of February, 1989, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of February, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-3108 The following constitute specific rulings upon the parties' respective Proposed Findings of Fact (PFOF) pursuant to Section 120.59(2), Florida Statutes. Petitioner's PFOF: 1-5 are all accepted. Respondent's PFOF: PFOF 1 discusses the nature of several exhibits and objections ruled upon in the course of formal hearing, does not constitute a relevant or material proposed fact and is not dispositive of any issue at bar. The same subjects are addressed within the RO at FOF 3-4 and 8 to the degree they impinge on this proceeding. PFOF 2 is rejected in part and accepted in part in FOF 8 to the degree it comports with the greater weight of the credible record evidence as a whole. PFOF 3 is accepted in part in FOF 6. The remainder of the proposal is rejected as irrelevant, immaterial, and not comporting with the greater weight of the credible record evidence as a whole. PFOF 4,5,7 and 8 are rejected as mere argument of position or legal argument. PFOF 6 is accepted in part in FOF 7. The remainder of the proposal is rejected as immaterial or mere argument of position or legal argument. COPIES FURNISHED: George W. Harrell, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Bertin C. Tash 5100 Spruce Avenue West Palm Beach, Florida 33407-2846 Allen Smith, Jr. Executive Director Board of Professional Land Surveyors 130 North Monroe Street Tallahassee, Florida 32399-0750 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32299-0750 =================================================================
Findings Of Fact The Subject Property. During 1973, Mode, Inc., applied for and obtained approval of Planned Unit Development (hereinafter referred to as "PUD") zoning for approximately 620 acres of real property known as Ridaught Landing located on County Road 209 in Clay County. In December of 1986, Mode, Inc., sold approximately 470 acres of Ridaught Landing to Village of Fireside, Inc. This 470 acre parcel (hereinafter referred to as the "Property"), is the subject of this proceeding. Purchase money financing and construction financing for the purchase and development of the Property was provided by Barnett Bank of Jacksonville, N.A. (hereinafter referred to as "Barnett"). In November of 1988 Barnett assigned its interest in the Property to the Petitioner simultaneously with the closing of financing by the Petitioner on the Property to Villages of Fireside, Inc. Villages of Fireside, Inc., subsequently defaulted on its indebtedness to the Petitioner and in April, 1992, the Petitioner accepted a Deed in Lieu of Foreclosure for the Property. Development of the Property; Government Action Relied Upon by the Petitioner. In November of 1985, the PUD was amended. As a condition of the amendment, Clay County required that 212 acres of uplands and associated wetlands be dedicated to a homeowner's association associated with the Property. The 212 acres were to be used as preservation area and for the construction of nature walks, gazebos and recreational areas. In January of 1988 Villages of Fireside, Inc., applied for approval of a further amendment to the PUD. Among other things, approval of a separate entrance to the Property was requested. The amendment was approved. As a result of the January, 1988 amendment, the PUD properties are to be developed as two separate subdivisions, known as Ridaught Landing and the Villages of Fireside. Development of the Villages of Fireside subdivision was approved for up to 400 single-family dwelling units within the residential portion, (b) 16 acres of recreational and private services uses, including a day-care center and a private park, and (c) the 212 acre preservation area. Villages of Fireside, Inc., submitted a plat to Clay County for the Villages of Fireside subdivision Unit One in 1988. The final plat for Unit One was approved March 22, 1988. Clay County required that the entrance to Unit One be constructed with an 80 foot right of way to accommodate the development of the entire project as approved by the PUD, as amended. The Petitioner's Detrimental Reliance. In reliance upon Clay County's approval of the PUD and amendments thereto and approval of the final plat of Unit One Villages of Fireside, Inc.: Constructed master infrastructure improvements (water and sewer systems, master roads and an oversized drainage facility) for the project at a cost of approximately $706,427.00. These improvements were made between February and October of 1988. Constructed entry features for the project at a cost of approximately $21,465.00. These improvements were made between December of 1988 and June of 1989. Constructed a nature walk through the 212 acre preservation area at a cost of approximately $97,593.00. These improvements were made between November of 1988 and January of 1989. Upon the assignment of Barnett's interest in the Property to the Petitioner in November of 1988, financing by the Petitioner for the Property to Villages of Fireside, Inc., closed. The Petitioner, therefore, refinanced construction of improvements made by Villages of Fireside, Inc., in reliance on Clay County's approval of the PUD, with amendments, and the final plat for Unit One. The Petitioner refinanced the project in reliance upon Clay County's approval of the PUD, with amendments, and the final plat for Unit One. The Petitioner considered the PUD zoning to be true and correct at the time of refinancing and the Petitioner's loan officer believed that the Property was approved for development of at least 400 single-family residential units at the time of refinancing. In reliance on Clay County's actions, proceeds were distributed by the Petitioner for construction of the nature walk through the 212 acre preservation area. The Petitioner also released the 212 acre preservation area from the lien of its mortgage on the Property so that it could be conveyed to the homeowner's association as common area. This release was made in reliance on Clay County's actions. Rights That Will Be Destroyed. Development of the Property will impact County Road 220. Pursuant to the Clay County 2001 Comprehensive Plan, there is insufficient capacity on the portion of County Road 220 that will be impacted by development of the Property to accommodate traffic projected to be generated by the Property as approved. If the Petitioner must comply with the Clay County 2001 Comprehensive Plan it will be required to delay completion of the project until County Road 220 is improved. Such a delay will have a substantial adverse financial impact upon the Petitioner. Procedural Requirements. The parties stipulated that the procedural requirements of Vested Rights Review Process of Clay County, adopted by Clay County Ordinance 92-18, as amended, have been met.
