Askew v. Cross Key Waterways
| Decision Date | 22 November 1978 |
| Docket Number | Nos. 52251,52252,s. 52251 |
| Citation | 372 So.2d 913 |
| Parties | 9 Envtl. L. Rep. 20,107 Reubin O'D. ASKEW et al., Appellants, v. CROSS KEY WATERWAYS et al., Appellees. Reubin O'D. ASKEW et al., Appellants, v. POSTAL COLONY CO., INC., et al., Appellees. |
| Court | Florida Supreme Court |
Robert L. Shevin, Atty. Gen., and James D. Whisenand, Deputy Atty. Gen. and Martin S. Friedman, Asst. Atty. Gen., Tallahassee, for appellants.
Murray H. Dubbin and Evan Langbein of Dubbin, Schiff, Berkman & Dubbin, Charles H. Netter, Miami, and Tittle & Tittle, P.A., Tavernier, for Cross Key Waterways.
Richard W. Ervin, Joseph C. Jacobs and Robert J. Angerer of Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, for City of Key West.
E. Snow Martin of Martin & Martin, Lakeland, for Postal Colony Co., Inc.
Richard E. Nelson of Nelson, Hesse, Cyril, Weber & Sparrow, Sarasota, amicus curiae, for Sarasota County.
William L. Earl and Sandra R. Scott of Peeples, Earl & Blank, Miami, amicus curiae, for William L. Earl.
Parker D. Thomson and Janice S. Burton of Paul & Thomson, Alan Milledge and Earl G. Gallop of Milledge & Hermelee, and Joseph Z. Fleming of Fleming & Neuman, Miami, amicus curiae, for Florida Audubon Society and League 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.
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). The issue reaches us by appeal from two separate decisions of the District Court of Appeal, First District, 1 which have been consolidated for review by this Court. Because each case was ultimately disposed of upon the constitutional invalidity of the aforementioned statutory provisions jurisdiction reposes in this Court pursuant to Article V, Section 3(b)(1), Florida Constitution.
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. 4 In its recommendation the Division of State Planning must designate the boundaries of the proposed area of critical state concern, explain the reasons for its conclusion that the area is of critical concern to the state or region, the dangers which would result from uncontrolled or inadequate 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 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.
(b) An area significantly affected by, or having a significant effect upon, an existing 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.
Prior to submitting a recommendation with respect to an area of critical state concern to the Administration Commission, the Division of State Planning must give notice to all local governments and regional planning agencies included within the proposed boundaries, 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).
Within 45 days after receiving the recommendations of the Division of State Planning, the Administration Commission must either 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, if any, 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). The regulations are not effective until the Division of State Planning's rule approving them becomes effective which, under Section 120.54(11), Florida Statutes (1975), is 20 days after it is filed with the Secretary of State. 6
If the relevant local government fails to propose land development regulations within six months of adoption of the rule designating the area of critical state concern or, if such regulations have been proposed but the Division 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 is allowed forty-five days after the receipt of recommended regulations, if any, from the Division of State Planning within which to reject the same or adopt them with or without modification. 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 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). It is essential under the statutory scheme that land development regulations become effective 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).
The Act affects regulation of virtually all development in an area of critical state concern: all building, mining, and changes in the use or appearance of land, water and air and appurtenant structures; material increases in the density of its use; alteration of shores and banks; drilling; structural demolition; clearing adjunct to construction; and deposit of waste or fill. Excepted are work by road agencies and other utilities; structural maintenance affecting only the interior or the color or exterior decoration of a structure; the use of structures for customary dwelling purposes; changes of usage within the same regulated class of use; changes in ownership; and changes in rights of access, riparian rights, easements and covenants affecting rights and land. Section 380.04.
The controversy before us results from actions taken by the Administration Commission of the Department of Administration in designating the Green Swamp area of critical state concern and the Florida Keys area of critical state concern and, in the case of the former, adopting land development regulations.
Green Swamp Area of Critical State Concern. 7
The Administration Commission adopted Chapter 22F-5, Florida Administrative Code, on July 16, 1974, which rule designated the Green Swamp area of critical state concern 8 and adopted principles for guiding development related thereto. After hearings on proposed land development regulations for the area, the Administration Commission on June 17, 1975, adopted amended land development regulations. Subsequent to that date a challenge to the land development regulations was filed but was denied by a hearing officer on June 27, 1975. On June 30, 1975, the land development regulations were filed with the Secretary of State as...
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