CopyCited 90 times | Published | Supreme Court of Florida | 9 Envtl. L. Rep. (Envtl. Law Inst.) 20
...of Women Voters. Bruce C. Starling, Gen. Counsel, and Nancy G. Linnan, Asst. Gen. Counsel, Tallahassee, amici curiae, for Reubin O'D. Askew, Governor, State of Florida. SUNDBERG, Justice. We deal today with the constitutionality of the provisions of Section 380.05(1), Florida Statutes (1975), for designation of areas of critical state concern by use of the criteria stated in Section 380.05(2)(a) and (b), Florida Statutes (1975)....
...Responding to the policy and mandate contained in Article II, Section 7, Florida Constitution, [2] in 1972 the legislature enacted the "Florida Environmental Land and Water Management Act," Chapter 72-317, Laws of Florida, Chapter 380, Florida Statutes. [3] Section 380.05(1)(a) of the enactment empowers the Division of State Planning to recommend areas of critical state concern to the Governor and cabinet acting as the Administration Commission....
...nadequate development of the area, and the advantages to be gained from the development of the area in a coordinated manner. In addition, the Division of State Planning recommends specific principles for guiding the development of the proposed area. Section 380.05(2), Florida Statutes (1975), enunciates the criteria which the Division of State Planning shall utilize in determining whether to recommend designation of a particular area as one of critical state concern: (2) An area of critical stat...
...ies, including any notice required by Chapter 120, Florida Statutes (1975), [5] the Administrative Procedure Act, the provisions of which govern the actions taken by the Division of State Planning and the Administration Commission under Chapter 380. Section
380.05(4) and (8), Florida Statutes (1975); Section
120.72, Florida Statutes (1975)....
...ither reject the recommendations or adopt them with or without modification. Thereafter, by rule, the Administration Commission designates the area of critical state concern and approves the principles for guiding development of the designated area. Section 380.05(1)(b), Florida Statutes (1975). The Administration Commission is statutorily prohibited from designating more than five percent, in the aggregate, of the land within the state (approximately 1.8 million acres) as an area of critical state concern. Section 380.05(17), Florida Statutes (1975). Section 380.05(5) provides that: After the adoption of a rule designating an area of critical state concern the local government having jurisdiction may submit to the state land planning agency its existing land development regulations for the area,...
..., or shall prepare, adopt and submit new or modified regulations, taking into consideration the principles [for guiding development] set forth in the rule designating the area as well as the factors that it would normally consider. Subsection (7) of Section 380.05 directs the Division of State Planning to provide technical assistance to the local government in the preparation of the proposed land development regulations....
...If the Division of State Planning determines that the land development regulations submitted by the local government comport with the principles for guiding development, it shall by rule approve the locally-promulgated land development regulations. Section 380.05(6)....
...ion of State Planning concludes that they do not comply with the principles for guiding development for the area, within 120 days thereafter the Division of State Planning must recommend land development regulations to the Administration Commission. Section 380.05(8)....
...The Administration Commission must establish the land development regulations, by rule, within the forty-five day period as well. This rule must specify to what extent the regulations will supersede or supplement local land development regulations. Section 380.05(8). Although *916 the regulations are administered by the local government, the Division of State Planning may initiate judicial proceedings to compel their enforcement if it concludes that local administration is inadequate. Section 380.05(8) and (9)....
...Chapter 380 possesses the flexibility to conform to changed needs and conditions of a designated area of critical state concern by permitting the local government to propose new land development regulations after the initial regulations have been approved by the Division of State Planning or the Administration Commission. Section 380.05(10)....
...e within twelve months after the adoption of the rule designating the area of critical state concern. If this condition is not fulfilled, the designation terminates and the area may not be redesignated for a period of one year after the termination. Section 380.05(12)....
...des that regulations are "effective" twenty days after they are filed, might preclude the land development regulations from becoming effective within twelve months of adoption of the rule designating the area of critical state concern as mandated by Section 380.05(12), Florida Statutes (1975)....
...rated "immediate danger to the public health, safety, or welfare" as required by Section
120.54(8)(a). It concluded further that the land development regulations adopted as Chapters 22F-6 and 22F-7 did not become effective within the time imposed by Section
380.05(12) and, therefore, the designation made by Chapter 22F-5 terminated....
...g rule challenge under Section
120.54(3). However, the court declined to consider the issue because of Florida Appellate Rule 3.14(b) and because of its decision in Cross Key Waterways, Inc. v. Askew, supra, holding unconstitutional the provision by Section
380.05(1) for designation of areas of critical state concern through use of the criteria stated in Section
380.05(2)(a) and (b)....
...Timely petitions for review of this agency action were lodged with the District Court of Appeal, First District, by appellees. In ruling upon a motion to dismiss, the district court confirmed the standing of appellees to seek review of the agency action. As mentioned above the district court held that the Section 380.05(2)(a) and (b) standards for exercise of the Section 380.05(1) power to designate areas of critical state concern are inadequate and that the delegation consequently offends Article II, Section 3, Florida Constitution....
...Therefore, except as otherwise herein expressly mentioned, we refrain from passing upon any other issues raised. At contest here are the competing philosophies which underlie two provisions of our fundamental document of government and the attempt by the legislature to accommodate those philosophies through the enactment of Section 380.05(2)(a) and (b), Florida Statutes (1975)....
... The powers of the state government shall be divided into legislative, executive and judicial branches. No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein. Appellants urge two propositions upon us. First, that the provisions of Section 380.05(2)(a) and (b) set forth adequate criteria for exercise of the power delegated by Section 380.05(1) when measured against the case law which construes the operation of Article II, Section 3....
...of Motor Vehicles, 81 Wash.2d 155, 500 P.2d 540 (1972); Schmidt v. Dept. of Resource Development, 39 Wis.2d 46, 158 N.W.2d 306 (1968); K. Davis, Administrative Law of the Seventies, §
2.04, at 30 (1976). Appellants maintain that the broad statement of policy contained in Sections
380.05(1) and
380.05(2)(a) and (b) coupled with the administrative safeguards imposed by Chapter 120, Florida Statutes (1975), alleviates any objection that the Administration Commission will act arbitrarily or capriciously in performing the function assigned by the legislature....
...Dealing with these propositions in the order presented, we first conclude that we must concur with the able opinion of the District Court of Appeal, First District, in Cross Key Waterways v. Askew insofar as it finds the standards and guidelines of Section 380.05(2)(a) and (b) to be deficient when assessed in light of prior case law....
...whether the agency is carrying out the intent of the legislature in its conduct, then, in fact, the agency becomes the lawgiver rather than the administrator of the law. The criteria for designation of an area of critical state concern set forth in Section 380.05(2)(a) and (b) are constitutionally defective because they reposit in the Administration Commission the fundamental legislative task of determining which geographic areas and resources are in greatest need of protection. As pointed out by Judge Smith below, the procedure envisioned by Sections 380.05(1) and (2) makes it impossible for a reviewing court to ascertain whether the priorities recognized by the Administration Commission comport with the intent of the legislature: The greater deficiency of Section 380.05(2), subsection (a), is that it does not establish or provide for establishing priorities or other means for identifying and choosing among the resources the Act is intended to preserve....
...g decision. The deficiency in the legislation here considered is the absence of legislative delineation of priorities among competing areas and resources which require protection in the State interest. We are told by appellants that the standards in Section
380.05(2)(a) and (b) are no *920 less definite than the guidelines of Sections
501.204 and
501.205, Florida Statutes (1975), which were upheld against a similar constitutional attack in Dept....
...In the cases under review the Administration Commission has in fact exercised the policy role in the first instance of determining which areas of this State and the resources therein are of critical state concern. It has then proceeded, pursuant to the other provisions of Section
380.05, to promulgate principles for guiding development and to adopt or approve land development regulations. Under the provisions of Section
380.05, the Administration Commission "fleshes out" what it has in the first instance conceived. In the words of Justice Whitfield in State v. Atlantic Coast Line Ry., supra, the function of the Administration Commission under Section
380.05(1) and (2)(a) and (b) involves the exercise of primary and independent discretion rather than the determination "within defined limits, and subject to review, [of] some fact upon which the law by its own terms operates... ."
47 So. at 972. In contrast, by The Big Cypress Conservation Act of 1973, Section
380.055, Florida Statutes (1975), the legislature conceived the areas of critical state concern and left to the Division of State Planning and the Administration Commission the task of "fleshing out" through adoption of land development regulations....
...by the Act. In 1974, Massachusetts enacted St. 1974, c. 637, "An act protecting land and water on Martha's Vineyard" which is patterned after The American Law Institute, Model Land Development Code. ALI, A Model Land Development Code, Art. 7 (1976). Section 380.05, Florida Statutes (1975), was likewise modeled after an earlier draft of Article 7 of the American Law Institute Model Code....
...of the island, which standards and criteria were subject to and received the approval of the Secretary of Communities and Development. The Massachusetts scheme, then, is similar to that adopted by the Florida Legislature for the "Big Cypress Area" (Section 380.055) insofar as establishment of the geographic perimeters in which the agency may exercise its discretion is concerned....
...Under the fundamental document adopted and several times ratified by the citizens of this State, the legislature is not free to redelegate to an administrative body so much of its lawmaking power as it may deem expedient. And that is at the crux of the issue before us. Appellants argue that Section 380.05 requires that all land development regulations be consistent with the principles for guiding development which are adopted contemporaneously with the designation of an area of critical state concern and, therefore, there can be no abuse in the process. We concur that the provisions of Section 380.05 coupled with Chapter 120, Florida Statutes, are calculated to assure procedural due process....
...legislature who are elected to perform those tasks, and administration of legislative programs must be pursuant to some minimal standards and guidelines ascertainable by reference to the enactment establishing the program. The criteria contained in Section 380.05(2)(a) and (b), Florida Statutes (1975), do not comply with this constitutional imperative. Our decision today need not impair the ability of our state government to protect the resources and facilities described in Section 380.05(2)(a) and (b), however....
...In complying with the policy and mandate of Article II, Section 7, Florida Constitution, the legislature need only exercise its constitutional prerogative and duty to identify and designate those resources and facilities. It may be done in advance as with the Big Cypress area of critical state concern, Section 380.055, Florida Statutes (1975), or through ratification of administratively developed recommendations as in the case of the California Coastal Zone Conservation Plan, CEEED v....
...Appellants have filed in this cause a petition for rehearing or clarification of the Court's principal opinion [
372 So.2d 913] filed November 22, 1978. It is asserted that certain language in the opinion may result in unduly circumscribing the legislature in its response to the invalidation of portions of section
380.05, Florida Statutes (1975)....
...The portion of the opinion allegedly giving rise to the appellants' concerns is: [T]he legislature need only exercise its constitutional prerogative and duty to identify and designate those resources and facilities. It may be done in advance as with the Big Cypress area of critical state concern, Section 380.055, Florida Statutes (1975), or through ratification of administratively developed recommendations......
...Because of the significance of this issue, we deem it appropriate, in this instance, to disavow the construction attributed by appellants to the above-quoted language. The examples outlined in the opinion present obvious remedies for the deficiencies found in section 380.05; however, it was not our purpose to indicate that the alternatives stated are exclusive....
CopyCited 31 times | Published | Supreme Court of Florida | 2004 WL 2109983
...or proposed major public facility or other area of major public investment. (c) A proposed area of major development potential, which may include a proposed site of a new community, designated in a state land development plan. Id. at 914-15 (quoting section 380.05(2), Florida Statutes (1975))....
CopyCited 19 times | Published | Florida 1st District Court of Appeal | 8 Envtl. L. Rep. (Envtl. Law Inst.) 20
...These petitions for review challenge Rule 22F-8 of the Governor and Cabinet, acting as the Administration Commission, Department of Administration, [1] and underlying provisions of the Florida Environmental and Water Management Act of 1972, Chapter 72-317, Laws of Florida, as amended, Sections 380.05(1)(a), and (2)(a) and (b), Florida Statutes (1975)....
...We previously endorsed the standing of these citizens, municipalities and others affected by the rule or whose participation as parties in the proceeding was recognized by the Administration Commission. Sections
120.52(10), .54, Florida Statutes (Supp. 1976); City of Key West v. Askew,
324 So.2d 655 (Fla.1st DCA 1976). Section
380.05 delegates power to the Administration Commission to establish government of land development by the Administration Commission superseding constituted local government here, that of Monroe County and the municipalities of Key West, Key Colony Beach, and Layton. The fundamental constitutional issue, which we reach after resolving all other issues adversely to petitioners, is whether that delegation of legislative power was attended by adequate standards for its exercise. We hold the Section
380.05(2)(a) and (b) standards for exercise of the Section
380.05(1) power are inadequate, that the delegation consequently offends Article II, Section 3, Florida Constitution, and that Rule 22F-8 must be quashed....
...or's urgent recommendation. [3] Chapter 380 provides for Administration Commission supervision and, where deemed necessary, supersession of local government regulation of development, by designation and regulation of areas of critical state concern, Section
380.05, and by similar control of developments of regional impact, Section
380.06. Geographic areas of critical state concern designated by the Commission are subject to "principles for guiding the development of the area" promulgated by Commission rule. Section
380.05(1)(b). Those principles are carried into effect either by approval of local government's "existing land development regulations for the area," Section
380.05(5), (6), or by superseding regulations of the Commission, adopted on recommendation of the Division of State Planning [4] when local regulations "do not comply with the principles for guiding development." Section
380.05(8). Once established, regulations for land development may be changed by local government only by consent of the Division of State Planning or the Administration Commission. Sections
380.05(10), (11). Local governments retain authority to administer the regulations but "proper enforcement" may be judicially enforced at the instance of the Division of State Planning. Section
380.05(9)....
...ernments, subject to general law regulating the use and development of particular resources. Sections 163.160 et seq.; 163.205, .210, .215;
163.360;
163.567; 163.611; 163.622;
161.25;
161.35;
125.01(g)-(j);
177.071;
166.021, Florida Statutes (1975). Section
380.05 does not purport to disturb conventional tests of whether governmental land use regulations unlawfully impinge private property rights....
...y understood restraints on state control at any level. The Administration Commission's land development regulations "may include any type of regulation that could have been adopted by the local government," and by implication they extend no further. Section 380.05(8). The Commission "is not authorized to adopt any rule that would provide for a moratorium on development in any area of critical state concern." Section 380.05(1)(b). Certain vested rights to develop *1065 are protected. Section 380.05(15)....
...nal interests, are commonplace. [8] Though of more recent lineage, *1066 statutes providing for direct agency supervision and supersession of local government regulation are no less legitimate under the Constitution. In 1973, one year after enacting Section 380.05, the Florida Legislature asserted overriding state and regional interests in a specific area designated the Big Cypress area of critical state concern, and reallocated to the Administration Commission the ultimate regulatory power previously exercised by local governments in that area. Chapter 73-131, Laws of Florida; Section 380.055, Florida Statutes (1975)....
...ded herein." Except for the Big Cypress, Chapter 380 does not specify geographic areas where, because of critical state concerns, the regulatory jurisdiction of local governments is to be supervised or superseded by the Administration Commission. By Section 380.05, the power to select the sites of desirable regulation, as well as the power to regulate, is delegated to the Commission....
...elopment regulations. [9] Yet the source of all of those considerations is the Commission itself or the Bureau of Land Planning, the Commission's subordinate agency. The principal statutory guidance for the Commission's designation power is found in Section 380.05(2), which provides: "An area of critical state concern may be designated only for: "(a) An area containing, or having a significant impact upon, environmental, historical, natural, or archaeological resources of regional or statewide importance....
...d development plan." The Administration Commission's designation power is also subject to a statutory limit of 500,000 acres in the first year after the 1972 enactment and an overall limit of five percent, roughly 1.8 million acres, of Florida land. Section 380.05(17). An inventory of state-owned lands was required before designation of any area of critical state concern. Section 380.05(1)(a)....
...projects for "environmentally endangered lands" and "outdoor recreation lands." The electorate approved. [10] Adequate guidance for the Commission's power to supersede local government must be found, if at all, in the five percent limitation and the Section 380.05(2) criteria for designation....
...vironmental, historical, natural or archaeological resources of regional or statewide importance and areas found to be "significantly affected by" or as "having a significant effect upon" major public facilities and areas of major public investment. Section 380.05(2)(a), (b)....
...Bank of Pasco County,
346 So.2d 53 (Fla. 1977). The statutory limitations on exercise of the Commission's designation power are unconstitutionally vague by the standards expressed by our Supreme Court in Atlantic Coast Line, Conner and Barg. [13] Subsections (a) and (b) of Section
380.05(2) inadequately control the Commission's determination of what the law shall be concerning the choice of areas to be designated of critical state concern....
...lly ascertainable and enforceable. See Straughn v. O'Riordan,
338 So.2d 832 (Fla. 1976); McDonald v. Dep't of Banking and Finance,
346 So.2d 569 (Fla.1st DCA 1977). The 1974 APA was not effective when Barg [15] was decided. The greater deficiency of Section
380.05(2), subsection (a), is that it does not establish or provide for establishing priorities or other means for identifying and choosing among the resources the Act is intended to preserve....
...80.031(10), or any "major public investment," which is not. The Act also lacks suitable standards for identification of local governments whose stewardship of valued resources is to be deemed inadequate to protect state and regional *1070 interests. Section 380.05's endpoint of supervision and supersession of local regulation implies a major premise that some local governments are unresponsive to regional and statewide interests in the regulation of local land developments....
...e task. E.g., State, Dep't of Citrus v. Griffin,
239 So.2d 577 (Fla. 1970). We have scoured the text and legislative history of Chapter 380 for evidence that the legislature considered formulation of standards for the political judgments required by Section
380.05 to be beyond its competence. Our search was in vain. Absent standards undergirding the administrative decisions authorized by Section
380.05(2)(a) and (b), the judiciary is impotent to check the unwarranted exercise of the delegated power....
...m unavailing. The designating rule was not rendered invalid by its filing with the Department of State eight days after expiration of the 45-day statutory period for Commission *1071 adoption of a designating rule recommended by the planning agency. Section 380.05(1)(b)....
...The Commission did not otherwise procedurally err. Our decision therefore invalidates, as violative of Article II, Section 3, Florida Constitution, the Act's delegation of power to designate areas of critical state concern by criteria expressed in Section 380.05(2)(a) and (b)....
...This requires the developer who is subject to both systems to go through two separate and distinct administrative processes, often doubling the time required and substantially increasing the costs required to obtain approval of the development proposal." [9] Under § 380.05(1), recommendations for the designation of specific areas of critical state concern emanate from the Division of State Planning, Bureau of Land Planning, citing "the reasons why the particular area proposed is of critical concern to the sta...
...signate the area of critical state concern and the principles for guiding the development of the area." Land development regulations are then approved by the Division or promulgated by rule of the Commission. [10] "[C]onditioning the exercise of ELA § 380.05(2)(a) upon the state's having financial resources to purchase lands, if necessary, was a crucial compromise that prevented the Bill, (except for the section nine study committee) from being defeated....
...2 "Delegation of Power" at 33 (1976). One need not entirely join Professor Davis' lament to appreciate his point that agency rulemaking should increasingly be used to provide particular standards which would otherwise be required of the legislature. [16] The model act from which §§ 380.05 and .06 were drawn does not require a comprehensive state plan for designation but recognizes that selection of all areas of critical state concern "would logically require a comprehensive study of the state's development patterns and natur...
...islated. Cf. §
120.54(9), Fla. Stat. (Supp. 1976); Postal Colony Co., Inc. v. Askew,
348 So.2d 338 (Fla. 1st DCA 1977). The emergency rulemaking powers authorized by the APA, effective for only 90 days, would not appear adequate for the purposes of §
380.05....
CopyCited 12 times | Published | Florida 1st District Court of Appeal | 1977 Fla. App. LEXIS 16299
...The regulations did not become effective within 12 months after July 16, 1974, the date the rule was adopted designating the area as one of critical state concern. Therefore the rule designation automatically terminated July 16, 1975, by *340 operation of Section 380.05(12), Florida Statutes (1975)....
...would result from uncontrolled or inadequate development of the area, and the advantages that would be achieved from the development of the area in a coordinated manner and recommend[ing] specific principles for guiding the development of the area." Section 380.05(1)(a), Florida Statutes (1975)....
...Sections 120.021(2), .041(1), Florida Statutes (1973). The rule designated the Green Swamp area of critical state concern, described its boundaries, and established principles for guiding development, regulatory guidelines and other matters required by Section 380.05....
...ted six months in which to submit to the state planning agency existing or proposed land development regulations "taking into consideration the principles set forth in the rule designating the area as well as the factors it would normally consider." Section 380.05(5), (7)....
...The planning agency is required either to approve the regulations submitted by a local government or, within 120 days after expiration of the six-month period, to recommend proposed regulations to the Administration Commission, which is required to adopt or not within 45 days. Section 380.05(6), (8)....
...part of the local land development regulations." If local administration is "inadequate to protect the state or regional interest," the state planning agency is authorized to "institute appropriate judicial proceedings to compel proper enforcement." Section 380.05(5) through (9). The statute which controls this case is Section 380.05(12): *341 "If, within 12 months after the adoption of the rule designating an area of critical state concern, land development regulations for the district have not become effective under either subsection (6) or subsection (8), the designation of the area as an area of critical state concern terminates....
...ys after filing." We may agree that in Section
120.54(11) the phrase "or on a date required by statute" does not in context necessarily mean a date later than "20 days after filing," but the Green Swamp development regulations were not "required" by Section
380.05(12) to become effective June 15, 1975 in the sense the word "required" is used by Section
120.54(11)....
...The APA there refers to statutes which require adoption of rules to be effectuated in all events and at a stated time. Chapter 380 does not "require" either that rules be adopted to designate the Green Swamp as an area of critical state concern or that rules be made effective to implement that designation within 12 months. Section 380.05(12) simply declares and declares unambiguously what shall become of such designations not so perfected within 12 months....
...and in controlling the means by which state policies are imposed on local governments. Section
380.021, Florida Statutes (1975). One of the legislature's chief methods for controlling the potent authority of state agencies in this area was by arming Section
380.05(12) as a self-destruct mechanism for rule designations which are not timely implemented by effective development regulations....
...1962); Edgerton v. Int'l Co.,
89 So.2d 488 (Fla. 1956); Cram v. Florida Ind. Comm'n,
150 So.2d 501 (Fla. 3rd DCA 1963); Fla. Ind. Comm'n v. Nat. Trucking Co.,
107 So.2d 397 (Fla. 1st DCA 1958). On July 15, 1975, meeting in apprehension of the effect of Section
380.05(12), the Administration Commission adopted the text of the Green Swamp land development regulations as emergency rules 22 FER-75-1 through 30....
...Our consideration of them at this time is deterred by Fla.App.R. 3.14(b), which might not otherwise control so important a revelation, and by today's decision in Cross Key Waterways, Inc., v. Askew, Nos. Y-362, Y-363 and Y-430 (Fla. 1st DCA 1977), which holds unconstitutional the provision by Section 380.05(1) for designation of areas of critical state concern by use of the criteria stated in Section 380.05(2)(a) and (b)....
CopyCited 6 times | Published | Supreme Court of Florida | 18 Fla. L. Weekly Supp. 476, 1993 Fla. LEXIS 1450, 1993 WL 347762
...Thus, the underlying statutory framework clearly placed an initial burden upon the state to show that an adverse impact would result if the permit were granted. In contrast, the instant case involves an area of critical state concern which falls under the statutory framework of sections 380.05 and 380.0552, Florida Statutes (1987). Before an area is designated as one of critical state concern, the Department must identify the "dangers that would result from uncontrolled or inadequate development of the area." § 380.05(1)(a), Fla....
...An area of critical state concern may only be designated for an area having a significant impact upon "environmental or natural resources of regional or statewide importance," "historical or archaeological resources, sites ... or districts," or a "major public facility or other area of major public investment[.]" §
380.05(2)(a), (b), (c), Fla. Stat. (1987). Moreover, if a proposed development of regional impact falls within an area of critical state concern, "the local government shall approve it only if it complies with the land development regulations therefor under s.
380.05 and the provisions of this section." §
380.06(13), Fla. Stat. (1987) (emphasis added). §
380.05(16) also provides that "[n]o person shall undertake any development within any area of critical state concern except in accordance with this chapter." Thus, the Legislature has made a statutory determination that development in an area of critical state concern will have an adverse impact if the development is not in accordance with chapter 380. The Legislature designated the Florida Keys Area as an area of critical state concern in the "Florida Keys Area Protection Act." §
380.0552(1), Fla. Stat. (1987). Pursuant to the Act, the enactment, amendment, or rescission of any land development regulation or element of a local comprehensive plan in the Florida Keys Area only becomes effective upon approval by the Department. §
380.0552(9), Fla....
...Thus, the Legislature has also statutorily determined that development in the Florida Keys Area will have an adverse impact if not in accordance with chapter 380, the local development regulations, and the local comprehensive plan. However, unlike the statutory framework at issue in Estuary Properties, neither section
380.0552 nor section
380.05 addresses which party carries the burden in a section *835
380.07 proceeding....
...illegal and violative of the Monroe County Land Development Regulations and Comprehensive Plan." Thus, the Department was the party asserting the affirmative that the development orders were not in accordance with chapter 380 as required by sections 380.05 and 380.0552....
...pe of proceeding than is usual under section
120.57. As the majority notes, the underlying statutes in this case relate to areas of critical state concern generally and specifically designate the Florida Keys as one of those critical areas. Sections
380.05, .0552, Fla....
...tion of the appeal process. [2] Section
380.07(3), Florida Statutes (1987), provides in pertinent part: Prior to issuing an order, the Florida Land and Water Adjudicatory Commission shall hold a hearing pursuant to the provisions of chapter 120. [3] Section
380.0552, Florida Statutes (1987), designates the Florida Keys Area as an area of critical state concern. Thus, the permits issued to the Youngs by Monroe County were subject to the procedures of section
380.07. [4] The Department argues that section
380.05(16), Florida Statutes (1987), statutorily places the burden of proof on the person seeking development approval. We do not agree that section
380.05(16) addresses the burden of proof, but instead read the provision as defining the procedure for undertaking development in an area of critical state concern....
CopyCited 6 times | Published | Florida 3rd District Court of Appeal | 2008 WL 5412010
...The trial court found in favor of the Landowners, but on appeal this Court reversed the ruling. See Monroe County v. Ambrose,
866 So.2d 707 (Fla. 3d DCA 2003). As Intervenors, the Landowners are subject to the holding in Ambrose requiring that they "demonstrate a good faith reliance on section
380.05(18) and change of position in furtherance of developing their land in order to have vested rights to develop their property." Id....
CopyCited 4 times | Published | Florida 3rd District Court of Appeal | 1995 WL 170333
...The court stated: [T]he legislature need only exercise its constitutional prerogative and duty to identify and designate those resources and facilities [which are areas of critical state concern]. It may be done in advance as with [the statutory designation of] the Big Cypress area of critical state concern, Section 380.055, Florida Statutes (1975), or through ratification of administratively developed recommendations ......
...haeology." [8] By opinion on rehearing, the court stated that the two enumerated alternatives, legislation in advance and legislative ratification of administratively developed recommendations, "present obvious remedies for the deficiencies found in section 380.05; however, it was not our purpose to indicate that the alternatives stated are exclusive." Id....
CopyCited 4 times | Published | Florida 1st District Court of Appeal | 2002 WL 1562223
...." Id. (citing Merriam-Webster's New International Unabridged Dictionary 596 (3d ed.)). [4] See, e.g., §
40.50, Fla. Stat. (allowing jurors to take confidential notes during civil actions likely to exceed 5 days for later use during deliberations); §
380.05, Fla....
CopyCited 4 times | Published | Florida 3rd District Court of Appeal | 2003 WL 22900537
...Shepherd, for Pacific Legal Foundation, as Amicus Curiae for appellees. Before LEVY [*] , GERSTEN, and GODERICH, JJ. Rehearing and Rehearing En Banc Denied February 18, 2004. PER CURIAM. In the proceedings below, the trial court granted summary judgment in favor of Thora Ambrose, et. al. ("Landowners"), finding that Section 380.05(18), Florida Statutes (1997), [1] created a vested right for the Landowners to complete development of single-family homes on their land....
...The Landowners own parcels of undeveloped land that were platted and recorded in Monroe County between April 24, 1924 and June 27, 1971. During this time, local subdivision plat law governed the development of land. In 1979, the Florida Legislature enacted Section 380.0552 and designated Monroe County as an area of critical state concern....
...Rate of Growth Ordinance ("ROGO") and the 2010 Comprehensive Plan. Monroe County and the Landowners filed cross motions for summary judgment. The trial court granted summary judgment in favor of the Landowners. The trial court found that pursuant to Section 380.05(18), Florida Statutes (1997), the Landowners have vested rights to build single family homes, by virtue of recording their parcels of land....
...The trial court held that these vested rights are superior to and preempt any of the State of Florida and local governments' *710 comprehensive plans and land use regulations. Finally, the trial court determined that the Landowners' rights to develop their land became vested on July 1, 1972, the enactment date of Section 380.05(18). For the following reasons, we reverse the order granting summary judgment and remand for further proceedings. The trial court interpreted Section 380.05(18) to find that the Landowners have vested rights to develop their property pursuant to the recordation of their parcels of land. Section 380.05(18) provides that: Neither the designation of an area of critical state concern nor the adoption of any regulations for such an area shall in any way limit or modify the rights of any person to complete any development that has been au...
...8701 Collins Ave., Inc.,
77 So.2d 428 (Fla.1954). It would be unconscionable to allow the Landowners to ignore evolving and existing land use regulations under circumstances when they have not taken any steps in furtherance of developing their land. Pursuant to Section
380.05(18), the Landowners rights to develop their land are not limited or modified by the designation of an area of critical state concern nor the adoption of regulations if they recorded their property prior to the approval of land development regulations for the area....
...2d DCA 1978) (existence of present right to use a particular use of land derived from less restrictive zoning or no zoning ordinance at all is not a sufficient act of government upon which to base equitable estoppel to preclude enforcement of subsequently adopted zoning restrictions); see also § 380.05(16), Fla....
...Furthermore, the purpose of Chapter 380 is to protect the natural resources and environment of the state, preserve water resources, and facilitate orderly and well planned development. See Compass Lake Hills Dev. Corp. v. Dep't of Cmty. Affairs,
379 So.2d 376 (Fla. 1st DCA 1980); §
380.0552, Fla....
...contrary to legislative intent. The result would clearly subvert significant legislation and regulations designed and enacted for the purpose of preserving our most precious lands. Therefore, we conclude that the Landowners must show they relied on Section 380.05(18), and changed their position in furtherance of developing their land, in *712 order to have vested rights to develop their property....
...t developer had vested rights). Those Landowners who do not have vested rights, however, will be subject to the subsequently enacted land regulations. See Harbor Course Club,
510 So.2d at 918 (development of property as a golf driving range violated Section
380.05 as property owners' rights had not vested prior to designation of the land as an area of critical state concern)....
...Based on the foregoing analysis, it is unnecessary to address the other points raised on appeal. With regard to the cross-appeal, the Landowners argue that the trial court incorrectly calculated the cut-off date for determining their vested rights under Section 380.05(18). The trial court concluded that July 1, 1972 was the date that the parcels of land became vested because on that date Section 380.05(18) was enacted. The Landowners allege that September 15, 1986 is the correct cut-off date for determining their vested rights, and Monroe County concedes that the Landowners are correct on this point. We agree. Section 380.05(18) provides vested rights for Landowners who recorded their property prior to the approval of land development regulations for the area of critical state concern....
...The first land development regulations for Monroe County were enacted on September 15, 1986. Therefore, we reverse with instructions for the trial court to enter September 15, 1986, as the appropriate date for obtaining vested rights. In conclusion, we reverse the summary judgment finding that a plain reading of Section 380.05(18) gives the Landowners a vested right to develop their property if the Landowners have demonstrated a good faith reliance and change of position....
...motes and supports a diverse and sound economic base; protects the constitutional rights of property owners to own, use and dispose of their real property and; promotes coordination and efficiency among governmental agencies in the Florida Keys. See § 380.0552, Fla. Stat. (1997). [3] The first land development regulations were adopted in 1986 pursuant to Sections 380.05(6) and (8), Florida Statutes (1985)....
CopyCited 3 times | Published | District Court, S.D. Florida | 2007 U.S. Dist. LEXIS 13939, 2007 WL 624080
...The Village of Islamorada is within the boundaries of the State-created Florida Keys Area of Critical State Concern ("ACSC"). Chapters 163 and 380, Florida Statutes, govern local land use policies, land development regulations, and development orders in the ACSC. Fla. Stat. § 380.05 requires that local comprehensive plans and land development regulations ("LDRs") comply with the State's "Guiding Principles" for the ACSC....
CopyCited 3 times | Published | Florida 3rd District Court of Appeal
...000 acres, half of which is developed and half of which has been dedicated to wilderness. "20. The subject property as well as the entire Ocean Reef Development is part of an Area of Critical State Concern previously designated on July 1, 1979 under Section 380.0552, Florida Statutes, and subject to Chapters 27F-8 and 27F-9, Florida Administrative Code....
...Co., Inc.,
396 So.2d 778 (Fla. 1st DCA 1981). "The property involved in this case, which is the subject of the application for a permit to develop a golf driving range, is located in that portion of Monroe County designated as an Area of Critical State Concern. Section
380.0552, Florida Statutes....
...by Monroe County pursuant to Chapter 163, Florida Statutes. Sections
163.3161(5) and
163.3194(1), Florida Statutes, provide that Monroe County may not permit development except in conformity with such plan. The comprehensive plan is also required by Section
380.05(4), Florida Statutes, to be in conformity with Chapter 27F-8, Florida Administrative Code....
...the County's designation as an Area of Critical State Concern, and it is therefore exempt from such permitting requirements. "Respondents Harbor Course and Driscoll Properties base their contention that vesting occurred on the following provisions: "380.05 Areas of Critical State Concern....
CopyCited 3 times | Published | Florida 1st District Court of Appeal | 1975 Fla. App. LEXIS 19073
...do not have standing to prosecute this appellate action in that they are not parties within the meaning of Florida Statute
120.52(9). *657 Final Agency Action The statutory basis for designation of areas of critical state concern is Florida Statute
380.05....
...valent, or denial of a petition to adopt a rule or issue an order." (Emphasis supplied.) Florida Statute
120.52(3) defines "Agency Head" as the person or collegial body in a department statutorily responsible for final agency action. Florida Statute
380.05 clearly provides that the provisions for areas of critical state concern cannot be implemented until the Administration Commission adopts a rule under Chapter 120. Thus, the Administration Commission is statutorily responsible for "final agency action" in adopting a rule pursuant to the provisions of Florida Statute
380.05 and Chapter 120, Florida Statutes....
CopyCited 2 times | Published | District Court, S.D. Florida | 2002 U.S. Dist. LEXIS 23236, 2002 WL 31958956
...The Agency is an "agency" within the meaning of Chapter 120 of the Florida Statutes. As such, the Agency is governed by the provisions of the Administrative Procedures Act, codified at §
120.52(1)(b), Fla. Stat. 3. Proceedings approving the Ordinance are subject to the provisions of Section
380.05(6) of the Florida Statutes, which states, in pertinent part: No proposed land development regulation within an area of critical state concern becomes effective under this section until the state land planning agency issues its final order or, if the final order is challenged, until the challenge to the order is resolved pursuant to Chapter 120. Fla. Stat. §
380.05(6)....
...a Statutes. 12. The Rathkamp Petitioners filed a Motion for Stay of Enforcement and Request for Emergency Hearing with the District Court of Appeals, Third District on January 27, 1999. This Motion specifically argued to the court that: [Pursuant to Section 380.05(6), Florida Statutes]......
...The court begins by noting a statement proffered by Rathkamp Petitioners in their Motion for Stay of Enforcement and Request for Emergency Hearing with the District Court of Appeals, Third District on January 27, 1999. On page 3, paragraph 6 of this document, the Rathkamp Petitioners note: Pursuant to Section 380.05(6) of the Florida Statutes: No proposed land development regulation within an area of critical state concern becomes effective under this section until the state land planning agency issues its final order or, if the final order is challenged, until the challenge to the order is resolved pursuant to Chapter 120....
...nty Ordinance No. 004-1997 is valid under Florida law and consistent with the Principles of Guiding Development for the Florida Keys area of critical state concern, as required by Fla. Stat. §
380.04. The Third District further held that Fla. Stat. §
380.0552(7) does not constitute an unconstitutional delegation of legislative authority to the Florida Department of Community Affairs under the Florida Constitution....
...nty Ordinance No. 004-1997 is valid under Florida law and consistent with the Principles of Guiding Development for the Florida Keys area of critical state concern, as required by Fla. Stat. §
380.04. The Third District further held that Fla. Stat. §
380.0552(7) does not constitute an unconstitutional delegation of legislative authority to the Florida Department of Community Affairs under the Florida Constitution....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 1996 WL 210139
...lected to perform those tasks, and administration of legislative programs must be pursuant to some minimal standards and guidelines ascertainable by reference to the enactment establishing the program. Askew,
372 So.2d at 924-25. The court held that section
380.05(1)(a), Florida Statutes (1975), was unconstitutional because the Legislature did not provide minimum standards and guidelines to set priorities among competing areas and resources which could be classified as areas of critical state concern under the Act....
CopyCited 1 times | Published | District Court, S.D. Florida | 2000 U.S. Dist. LEXIS 9911, 2000 WL 964763
...004-1997 (the "Ordinance") is valid under Florida law and consistent with the Principles of Guiding Development for the Florida Keys area of critical state concern, as required by Fla. Stat. §
380.04. The Third District further held that Fla. Stat. §
380.0552(7) does not constitute an unconstitutional delegation of legislative authority to the FDCA under the Florida Constitution....
...In Counts I-IV of the Amended Complaint, Plaintiffs have expressly stated that the premature enforcement claims are not contingent upon the outcome in Rathkamp. In light of this clarification, and upon review of Florida Statutes §§
120.68 [2] and
380.05(6) [3] , the Court finds that Plaintiffs' premature enforcement claims are still viable after the Rathkamp decision....
...thkamp would render some of their claims moot as a matter of law. [2] Fla. Stat. §
120.68 provides for Judicial Review of agency decisions. Subsection 3 of this section relates to enforcement of an agency decision pending its appeal. [3] Fla. Stat. §
380.05(6) directs the procedures to be followed by the state land planning agency for approving or rejecting land development regulations....
CopyCited 1 times | Published | Court of Appeals for the Eleventh Circuit | 2010 U.S. App. LEXIS 13595, 2010 WL 2629483
...private property without just compensation in violation of the Fifth and Fourteenth
Amendments, (4) the Ordinance is void because it was enacted in violation of
Florida Statutes §
125.66(4), (5) the Ordinance was prematurely enforced in
violation of Florida Statutes §
380.05(6), and (6) both on its face and as applied to
Plaintiffs, the County's ban on vacation rentals effected a taking of private property
without just compensation in violation of Article X, § 6(a) of the Florida...
CopyPublished | District Court of Appeal of Florida | 11 Fla. L. Weekly 2455, 1986 Fla. App. LEXIS 10793
...1 Hence, their application constituted an invalid ex-ereise of delegated legislative authority. Accordingly, we reverse the Commission’s order and remand the cause for further proceedings to allow application of the legislatively adopted version of the guiding principles. See section 380.0552(1), Fla....
...seaward of the mean high water line. We agree. Section
380.07 creates the Florida Land and Water Adjudicatory Commission, which consists of the Administration Commission, and gives it jurisdiction over any designated area of critical state concern. Section
380.0552(1) designates the boundaries of the Florida Keys Area of Critical State Concern as described in chapter 22F-8, Florida Administrative Code, now chapter 27F-8....
..., and we accordingly reverse. For the foregoing reasons, we affirm in part and reverse in part, and remand the cause for further proceedings consistent with this opinion. BARFIELD, J., concurs. ERVIN, J., concurs and dissents with written opinion. . Section 380.05(l)(c) provides in relevant part: A rule adopted by the commission pursuant to paragraph (b) designating an area of critical state concern and principles for guiding development shall be submitted to the President of the Senate and the...
...eview no later than 30 days prior to the next regular session of the Legislature. The Legislature may reject, modify, or take no action relative to the adopted rule. [Emphasis added.] ... See Askew v. Cross Key Waterways,
372 So.2d 913 (Fla.1979). . Section
380.0552(1) provides: The Florida Keys Area, the boundaries of which are described in chapter 22F-8, Florida Administrative Code, is hereby designated an area of critical state concern effective July 1, 1979....
...Chapters 22F-8 through 22F-13, Florida Administrative Code, are hereby adopted and incorporated herein by reference. There shall be appointed a resource planning and management committee as provided in s. 380.-045. It is of no aid to the Department and the Commission that the legislature just recently amended section 380.0552 by adopting the 1984 principles....
CopyPublished | Florida 3rd District Court of Appeal
...conveyed the property in fee simple to her four adult children twenty-one
years later.
In 1979, the Florida Legislature designated the Florida Keys
archipelago as an “area of critical state concern” in response to a rise in
development. See § 380.0552(1), Fla....
...This designation
4
subjected any enactments, amendments, or rescissions of land development
regulations or elements of a local comprehensive plan in the Florida Keys to
approval by the state land planning agency. See generally § 380.05, Fla.
Stat. (1979); see also § 380.0552(9), Fla....
...The property values of
the residents depend on water quality; their lives depend on timely hurricane
evacuation.
The Florida Legislature designated the Florida Keys as an area of
“critical state concern” in the Florida Keys Area Protection Act. §
380.0552(3), Fla. Stat. It did so not only to protect the Keys’ economy and
ecosystem, but most importantly to “[e]nsure that the population of the
Florida Keys can be safely evacuated” during “hurricanes.” § 380.0552(2)(j),
Fla....
...No hurricane shelters are available in the
Florida Keys for Category 3-5 hurricane storm
events. A system of managed growth was developed
to ensure the ability to evacuate within the 24-hour
evacuation clearance time as required by section
380.0552(9)(a)2., Florida Statutes.
Div....
