Bartecki v. Department of Community Affairs, BJ-274

• Decision Date: 25 November 1986
• Docket Number: No. BJ-274,BJ-274
• Citation: 11 Fla. L. Weekly 2455,498 So.2d 972
• Parties: 11 Fla. L. Weekly 2455 Mark BARTECKI and Lynn Kephart, Appellants, v. DEPARTMENT OF COMMUNITY AFFAIRS, et al., Appellees.
• Court: Florida District Court of Appeals

Page 972

498 So.2d 972

11 Fla. L. Weekly 2455

Mark BARTECKI and Lynn Kephart, Appellants, v. DEPARTMENT OF COMMUNITY AFFAIRS, et al., Appellees.

No. BJ-274.

District Court of Appeal of Florida First District.

Nov. 25, 1986.

James T. Hendrick, of Morgan & Hendrick, P.A., Key West, for appellants.

Ross Stafford Burnaman, and C. Laurence Keesey, Senior Atty., Dept. of Community Affairs, Tallahassee, for appellee Dept. of Community Affairs.

WIGGINTON, Judge.

By this appeal, appellants challenge the final order of the Florida Land and Water Adjudicatory Commission (Commission) adopting the hearing officer's findings of fact, and, with the exception of conclusion of law number five, the conclusions of law which would deny appellants' application for a development order in the Florida Keys Area of Critical State Concern. We affirm without comment Points II, V, and VI, and that portion of Point IV challenging the "public interest" test found in paragraph 4.1 of the Coastal Zone Protection Element of the Monroe County Comprehensive Plan. However, we reverse Points I and III, and that portion of Point IV challenging the Commission's conclusion that the Monroe County Code does not authorize a dock of the type proposed by appellants.

The genesis of this cause was appellants' 1982 application filed with Monroe County for a major development project known as Spoonbill Sound to be located on Cudjoe Key, and to consist of twenty-five duplex lots and a dock extending into Cudjoe Bay. Following extensive hearings and the concomitant accumulation of a plethora of studies, tests, plans, and permits, Monroe County adopted a resolution approving appellants' development and rezoning the property to an RU-2 (two-family residential) district, conditioned only on appellants' obtaining all required certifications prior to the construction of the dock.

Despite appellants' prodigious and successful efforts in obtaining development approval from the county, the Department of Community Affairs (Department) appeared on the scene to challenge the county's action, wielding its sword of authority afforded by section 380.07(2), Florida Statutes, to appeal to the Commission any development order affecting any area of critical state concern. The appeal was referred to the Division of Administrative Hearings. Following a de novo hearing, the hearing officer submitted an order recommending reversal of the county's development order, and recommending that development approval be denied. The only conclusion in appellants' favor was the hearing officer's conclusion of law number five that appellants' proposed dock did not require a dimensional variance from the Board of Adjustment. As stated above, apart from that latter conclusion, the Commission adopted the hearing officer's findings of fact and conclusions of law.

Under Point I, appellants challenge the application of the 1984 Florida Keys "Principles for Guiding Development," rule 27F-8.03, Florida Administrative Code. We agree that the application of those principles was improper as the rule had not at the time been submitted to the legislature for review as mandated by section 380.05(1)(c), Florida Statutes (1985). ¹ Hence, their application constituted an invalid exercise 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.Stat. (1985). ²

Next, under Point III, appellants argue that the Commission did not have jurisdiction over that portion of the dock to be constructed 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. Rule 27F-8.02, as promulgated by the Administration Commission, designates as the Florida Keys Area of Critical State concern all lands in Monroe County except "all lands seaward of mean high water that are owned by local, state, or federal governments...." In this case, 155 feet of the proposed dock will be constructed seaward of the mean high water line over submerged lands owned by the state. Consequently, by the unequivocal language of the rule, the Commission lacked jurisdiction over the construction of the 155 foot seaward portion of the dock, control of which, instead, falls to the Departments of Environmental Regulation and Natural Resources. See sections 403.087 and 253.77; and Bartecki v. Beardsley and Department of Environmental Regulation, 471 So.2d 1325 (Fla. 1st DCA 1985).

Finally, under Point IV, appellants challenge the Commission's conclusion that the Monroe County Code does not authorize in an RU-2 zoning district a dock intended for use in common by all owners in the development, as proposed by appellants. To the contrary, we agree with the hearing officer's conclusion that the proposed dock is authorized and that its construction does not require a dimensional variance, and hold that her analysis comports with the plain meaning of the code. Section 19-196 of the Monroe County Code regulating RU-2 districts, including duplexes, allows accessory uses as permitted for RU-1 districts. In turn, section 19-194(b), entitled "Accessory Uses Permitted," permits boat docks as provided in section 19-101. That latter section requires the permitting of all proposed boat docks, and authorizes the zoning department to regulate the length, construction, and other features of any proposed dock. However, as the hearing officer correctly pointed out, only in a single family residential area are docks restricted to being accessory to a single family dwelling and to serving only the residents of that dwelling; and only in a single family residential area is a variance required to extend the dock beyond 100 feet from the mean high water line. Thus, there is no foundation in section 19-101 for the Commission's position, 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.

ERVIN, Judge, concurring and dissenting.

I agree with the Commission's ultimate conclusion in denying the development application. Unlike the majority, I have no problem in approving the Commission's application of the 1984 principles for guiding development, found in Florida Administrative Code Rule 27F-8.03 (Supp.1985), to the development project, notwithstanding that at the time of their application they had not been submitted to the legislature for appropriate action. In that I do not regard Section 380.05(1)(c), Florida Statutes (1985), to have any relevancy to the issue at hand, I am of the view that the Commission was not required to seek legislative review of the 1984 guiding principles, and could therefore properly apply those principles to the question of whether the project should be approved.

Although subsection (1)(c) of section 380.05 clearly states that a rule adopted by the Commission designating a critical area of state concern, and providing for principles for guiding development "shall be submitted to the President of the Senate and the Speaker of the House of Representatives for review no later than 30 days prior to the next regular session of the legislature ...", and subsection (1)(b) requires that the principles "shall apply to any development undertaken subsequent to the legislative review ...", the above language, in my judgment, is inapplicable to the critically designated area of the Florida Keys. The controlling statute is rather Section 380.0552, Florida Statutes--not 380.05. Section 380.0552(1) designated as of July 1, 1979 the Florida Keys Area as an area of critical state concern, and incorporated by reference chapters 22F-8 through 22F-13, Florida Administrative Code. Rule 27F-8.06, formerly Rule 22F-8.06, provides the Department of Community Affairs with the authority, semi-annually, or at the direction of the Administration Commission, to, among other things, present recommendations to the Commission regarding proposed changes in the rules, including changes in the principles for guiding development.

Although section 380.0552--unlike section 380.05--does not provide a specific method for legislative review of recommendations made by the Administration Commission regarding rule changes, I see no reason why this court should not accept the interpretation placed upon section 380.0552 by the Department, as reflected in Rule 27F-8.06, which requires only that the Department present proposed changes in the rules to the Commission--not the legislature--for its approval. An agency's interpretation of a statute which it is legislatively charged with administering is subject to the well-recognized rule that such interpretation shall be accorded great weight and should not be overturned "unless...