Brown v. Apalachee Regional Planning Council

• Decision Date: 26 April 1990
• Docket Number: No. 74531,74531
• Citation: 560 So.2d 782
• Parties: 15 Fla. L. Weekly S244 Gene BROWN, etc., Petitioner, v. APALACHEE REGIONAL PLANNING COUNCIL, Respondent.
• Court: Florida Supreme Court

Page 782

560 So.2d 782

15 Fla. L. Weekly S244

Gene BROWN, etc., Petitioner, v. APALACHEE REGIONAL PLANNING COUNCIL, Respondent.

No. 74531.

Supreme Court of Florida.

April 26, 1990.

Gene D. Brown, Tallahassee, for petitioner.

Linda Loomis Shelley and Tommy E. Roberts, Jr. of Dixon, Blanton & Shelley, Tallahassee, for respondent.

SHAW, Justice.

We have for review Apalachee Regional Planning Council v. Brown, 546 So.2d 451, 452 (Fla. 1st DCA 1989), to answer the following certified question:

WHETHER THE POWER TO SET AND COLLECT FEES FOR DEVELOPMENT OF REGIONAL IMPACT APPLICATION AND REVIEW COSTS, AS EXERCISED PURSUANT TO RULE 29L-2.02, WAS PROPERLY DELEGATED TO THE APALACHEE REGIONAL PLANNING COUNCIL BY THE FLORIDA LEGISLATURE.

We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. We answer in the affirmative and approve the decision of the district court.

In October 1984, Brown submitted an application to the Apalachee Regional Planning Council (ARPC) to review his proposed substantial deviation from a development of regional impact (DRI) ¹ pursuant to chapter 29L-2, Florida Administrative Code. In accordance with Florida Administrative Code Rule 29L-2.02, ² Brown remitted a deposit of $4,000 and was charged for 100% of the reviewing costs of his application up to $10,000, and 80% of the cost of the portion exceeding $10,000. The final amount due was $14,856.74. Brown failed to pay the full amount, and ARPC filed a complaint in October 1986 seeking judgment. The circuit court declared the rule an unconstitutional delegation of legislative power. It found that the underlying legislation contained no guidelines or standards for determining when fees are to be assessed, against whom they are to be levied, and the fee amount. The district court reversed and ruled that more specific guidelines were not required because the underlying statutes concern the public health, welfare, and safety and they are thus an exception to the specific guidelines requirement, and in any event the fees constitute merely "technical implementations of a fundamental legislative policy decision." Brown, 546 So.2d at 453. The court certified the above question.

The nondelegation doctrine arises from article II, section 3, of the Florida Constitution, which provides that no branch of government shall exercise powers belonging to another. The doctrine essentially prohibits the legislature from delegating to another branch the power " 'to enact a law or to declare what the law shall be.' " Conner v. Joe Hatton, Inc., 216 So.2d 209, 211 (Fla.1968) (quoting State v. Atlantic Coast Line Ry., 56 Fla. 617, 47 So. 969, 976 (1908)). All "fundamental and primary policy decisions" must be made by the legislature, and the administration of legislative programs must be pursuant to "some minimal standards or guidelines." Askew v. Cross Key Waterways, 372 So.2d 913, 925 (Fla.1978). The specificity of the guidelines will depend on the complexity of the subject and the "degree of difficulty involved in articulating finite standards." Id. at 918. The test in determining the sufficiency of guidelines is whether they are adequate "to enable the agency and the courts to determine whether the agency is carrying out the legislature's intent." Department of Ins. v. Southeast Volusia Hosp. Dist., 438 So.2d 815, 819 (Fla.1983), appeal dismissed, 466 U.S. 901, 104 S.Ct. 1673, 80 L.Ed.2d 149 (1984). Without sufficient standards, the agency becomes "the lawgiver rather than the administrator of the law," Cross Key, 372 So.2d at 919, and is not precluded from "acting through whim, showing favoritism, or exercising unbridled discretion," Lewis v. Bank of Pasco County, 346 So.2d 53, 56 (Fla.1976).

Brown argues that the statutory provisions underlying rule 29L-2.02 are vague and practically identical to those that were declared unconstitutional in Bank of Pasco County (statute invalid that gave state comptroller discretionary authority to declare bank investigation records public); Sarasota County v. Barg, 302 So.2d 737 (Fla.1974) (sections of conservation act that prohibited "undue or unreasonable dredging" and "unreasonable destruction of natural vegetation" held impermissibly broad); and Joe Hatton, Inc. (statutory sections that gave agriculture commissioner power to establish programs to "remov[e] trade barriers" and prohibit "unfair trade practices" held invalid). We disagree. Each of the above provisions delegated to the executive or judicial branches an essentially unrestricted power to declare what the law is without providing minimal standards or guidelines. Such is not the case with the instant statutes and rule.

Chapter 160 provides for the creation of regional planning councils (RPCs) to deal with the problems of growth and development, and gives each RPC the power "[t]o fix and collect ... fees when appropriate." § 160.02(12), Fla.Stat. (1983). Chapter 163 provides that local governments may agree to jointly exercise their power in order to make efficient use of local resources, and that such agreements may provide for "[t]he fixing and collecting of ... fees, where appropriate." § 163.01(5)(h), Fla.Stat. (1983). Chapter 380 contains detailed provisions relating to DRIs and provides that regional planning agencies "may adopt additional rules ... to promote efficient review of developments-of-regional-impact applications." § 380.06(22)(c), Fla.Stat. (1983).

Chapters 160 and 163 thus give the ARPC authority to levy fees where "appropriate." Adoption under chapter 380 of a cost-based fee rule clearly promotes the "efficient review" of DRI applications and therefore is "appropriate." The legislature has set forth, in considerable detail, specific criteria to be used by the ARPC in conducting DRI reviews: which development projects must be reviewed, when review is to occur, who is to conduct review, and how review is to be performed. See ch. 380, Fla.Stat. (1983). Under these circumstances, given the highly technical nature of the DRI review process, details relating to the imposition of a cost-based review fee can be viewed as a technical matter of implementation rather than a fundamental policy decision. We note that the legislature has since amended chapter 380 to give the state land planning agency express authority to establish by rule the technical criteria for assessing such fees. ³

We conclude that the statutory scheme established in chapters 160, 163, and 380 contains sufficient indicia of legislative purpose to render the cost-based fee provisions of rule 29L-2.02 valid. We answer the certified question in the affirmative and approve the decision of the district court.

It is so ordered.

EHRLICH, C.J., and OVERTON, McDONALD, BARKETT, GRIMES and KOGAN, JJ., concur.

1 Section 380.06, Florida Statutes (1983), defines development of regional impact:

(1) The term "development of regional impact," as used in this section, means any development which, because of its character, magnitude, or location, would have a substantial effect upon the health, safety, or welfare of citizens of more than...