Cross Key Waterways v. Askew

• Decision Date: 10 August 1977
• Docket Number: Y-363 and Y-430,Nos. Y-362,s. Y-362
• Citation: 351 So.2d 1062
• Parties: 8 Envtl. L. Rep. 20,122 CROSS KEY WATERWAYS et al., Petitioners, v. Reubin O'D. ASKEW et al., Respondents. The CITY OF KEY WEST et al., Petitioners, v. Reubin O'D. ASKEW et al., Respondents. The CITY OF KEY WEST et al., Petitioners, v. Reubin O'D. ASKEW et al., Respondents.
• Court: Florida District Court of Appeals

Page 1062

351 So.2d 1062

8 Envtl. L. Rep. 20,122

CROSS KEY WATERWAYS et al., Petitioners, v. Reubin O'D. ASKEW et al., Respondents.

The CITY OF KEY WEST et al., Petitioners, v. Reubin O'D. ASKEW et al., Respondents.

The CITY OF KEY WEST et al., Petitioners, v. Reubin O'D. ASKEW et al., Respondents.

Nos. Y-362, Y-363 and Y-430.

District Court of Appeal of Florida, First District.

Aug. 10, 1977.

Murray H. Dubbin, Dubbin, Schiff, Berkman & Dubbin, Charles H. Netter, Miami, Richard W. Ervin, Joseph C. Jacobs and Robert J. Angerer, Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, and Tittle & Tittle, Tavernier, for petitioners.

Robert L. Shevin, Atty. Gen., James D. Whisenand, and Richard M. Goldstein, Asst. Attys. Gen., Tallahassee, for respondents.

SMITH, Judge.

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). Rule 22F-8 designates virtually all the Florida Keys ² as an area of "critical state concern" and prescribes principles for guiding development of the area's "earth, water, and air." Section 380.031(6). The designation subjects development there to regulation in the regional and state interests by the Administration Commission. 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.

To "conserve and protect" Florida's natural resources and scenic beauty, the Constitution requires "adequate provision" by law "for the abatement of air and water pollution and of excessive and unnecessary noise." Article II, Section 7, Florida Constitution. The Act here drawn in question was the 1972 Legislature's response to that constitutional requirement and the Governor'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). Local orders authorizing or denying development under the regulations may be appealed by affected persons, including state and regional planning agencies, to the Governor and Cabinet acting as the Florida Land and Water Adjudicatory Commission. Section 380.07. All such agency action is finally reviewable by a district court of appeal, in the manner we now review Rule 22F-8 itself, under the Administrative Procedure Act, Chapter 120.

The Act affects regulation of virtually all development in areas 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 in land. Section 380.04. Such regulation has by law heretofore been committed to county and municipal governments, 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. The Act imposes on the Administration Commission and subordinate agencies commonly 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 are protected. Section 380.05(15). The Act preserves "all the existing rights of private property . . . in accord with the constitutions of this state and of the United States," Section 380.021, and prohibits a rule or order which is "unduly restrictive or constitutes a taking of property without the payment of full compensation." Section 380.08(1). Thus invoking well-established standards which limit governmental regulation of the use of private property, the Act does not unconstitutionally take private property without compensation, deprive persons of property without due process of law, or abridge the basic right to acquire, possess and protect property. Article I, Sections 2, 9, Article X, Section 6(a), Florida Constitution. See D'Alemberte v. Anderson, 349 So.2d 164 (Fla.1977).

While the Act thus assures government shall exercise no unconstitutional powers in the regulation of private property, it shifts ultimate regulatory authority from the county courthouse and city hall to the Capitol. The Act thus touches sensibilities as old as the Revolution itself, because it affects the right of access to government the right of the people effectively "to instruct their representatives, and to petition for redress of grievances" ⁵ on which other cherished rights ultimately depend. The primacy of local government jurisdiction in land development regulation has traditionally been, in this country, a corollary of the people's right of access to government. In a sense, therefore, the jurisdictional claim of local governments in these matters is based on historical preferences stronger than law. Yet it is clear that counties and municipalities, supported by those who have enjoyed fruitful access to those governments, have no constitutionally vested jurisdiction in the regulation of the "earth, water, and air" within their confines. The power exercised or withheld by those governments is the state's power, appropriately delegated. ⁶ By law all but a few charter counties may be changed or entirely abolished. Article VIII, Section 1(a), Florida Constitution. The jurisdiction of every county, charter or non-charter, is subject to qualification by law. ⁷ Municipalities "may be established or abolished and their charters amended pursuant to general or special law," and they may exercise municipal powers "except as otherwise provided by law." Article VIII, Section 2.

The Florida Constitution does not forbid State reclamation of regulatory power from local government and its reassignment to State agencies. The same Constitution which permitted the state's delegation of power to local governments in the first instance also provides the means for reclamation to vindicate paramount state or regional interests. The means, of course, is legislation. Statutes which indirectly subordinate local government autonomy, through regulatory agencies having independent and concurrent jurisdiction in matters of state or regional interests, are commonplace. ⁸ Though of more recent lineage 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)...