Department of Community Affairs v. Moorman

• Decision Date: 28 September 1995
• Docket Number: No. 82946,82946
• Parties: 20 Fla. L. Weekly S500 DEPARTMENT OF COMMUNITY AFFAIRS, Petitioner, v. Charles MOORMAN, et al., Respondents.
• Court: Florida Supreme Court

Page 930

664 So.2d 930

20 Fla. L. Weekly S500

DEPARTMENT OF COMMUNITY AFFAIRS, Petitioner, v. Charles MOORMAN, et al., Respondents.

No. 82946.

Supreme Court of Florida.

Sept. 28, 1995.

Rehearing Denied Dec. 20, 1995.

David J. Russ and Brigette A. Ffolkes, Assistant General Counsels, Department of Community Affairs, Tallahassee, for petitioner.

Theodore W. Herzog, Key West, for respondents.

Richard Grosso, Tallahassee, amicus curiae for 1000 Friends of Florida.

KOGAN, Justice.

We have for review Moorman v. Department of Community Affairs, 626 So.2d 1108 (Fla. 3d DCA 1993), because of express and direct conflict with Harrell's Candy Kitchen Inc. v. Sarasota-Manatee Airport Authority, 111 So.2d 439 (Fla.1959), among other decisions. We have jurisdiction. Art. V, Sec. 3(b)(3), Fla. Const.

This case involves the validity of a land-use ordinance enacted to protect an endangered species, the miniature Florida Key deer. The regulation affects Big Pine Key where the deer now are largely concentrated. Human development on the Key has put the deer perilously close to extinction, and their numbers are estimated to be only 350 to 400 animals. The minimum number needed to sustain a viable species is considered 100 to 250 animals. The animals are further endangered by human attempts to feed them, by pet dogs that may kill them, and by automobiles.

The ordinance in question prohibits the erection of fencing in portions of Big Pine Key, where the respondents own property. It was enacted because, in a natural environment, Key deer must roam freely over slash pinelands and wetlands in search of food and water. This necessarily means the deer also must roam over some privately owned lands. The blanket prohibition on fencing was meant as an interim restriction to be replaced within a year by a more comprehensive regulation that would better identify where fence restrictions would be proper and where they were unnecessary. Despite its interim nature, the ordinance had been on the books for more than five years before the times in question here.

Charles Moorman owns a lot located in the slash pinelands of Big Pine Key. He also is owner of Your Local Fence, a company that is a respondent in this review. Moorman filed for a permit to build a six-foot-high 400-foot-long fence, which Monroe County granted. This was done notwithstanding the "interim" county ordinance. The record contains evidence that Moorman's fence is in a location that will adversely affect the Key deer.

The Department of Community Affairs ("DOCA") appealed the County's decision pursuant to DOCA's authority over areas of critical state concern. Sec. 380.07(2), Fla.Stat. (1993). The Moorman lot sits in an area designated as a "critical state concern" in 1979. ¹ Sec. 380.0552, Fla.Stat. (1993).

The case was referred to a Division of Administrative Hearings ("DOAH") officer, who found the permits improper. The finding specifically noted that the permits were issued as a matter of right. The officer recommended that the Cabinet, sitting as the Florida Land & Water Adjudicatory Commission ("Commission"), rescind the permits, and the Cabinet agreed. The Moormans then appealed to the Third District, which ruled the anti-fencing regulation facially unconstitutional.

The nub of the issue here is a simple failure to revisit an "interim" land-use regulation that was never intended to be a permanent feature of the county code book, as it seemed to have become by the times in question. While Monroe County chose not to apply the ordinance to respondents, DOCA now has taken the position that the ordinance must be enforced according to its strict letter. DOCA likewise contends that sufficient justification exists for such a blanket prohibition on fencing in the affected area.

We do not dispute that the State has a legitimate interest in protecting the natural habitat of the Keys and most especially of the Key deer. To this end, the State does in fact have a right to use its police power to establish land-use regulations addressing environmental concerns. Graham v. Estuary Properties, 399 So.2d 1374, 1381 (Fla.), cert. denied, 454 U.S. 1083, 102 S.Ct. 640, 70 L.Ed.2d 618 (1981). The clear policy underlying Florida environmental regulation is that our society is to be the steward of the natural world, not its unreasoning overlord. As the Constitution itself states:

It shall be the policy of the state to conserve and protect its natural resources and scenic beauty. Adequate provision shall be made by law for abatement of air and water pollution and of excessive and unnecessary noise.

Art. II, Sec. 7, Fla. Const. There is an obvious public interest in such a policy, given the fact that environmental degradation threatens not merely aesthetic concerns vital to the State's economy but also the health, welfare, and safety of substantial numbers of Floridians. Sarasota v. Barg, 302 So.2d 737 (Fla.1974).

The right of equal protection embodied in article I, section 2 stands for many things, but it does not restrict the State's ability to establish or mandate reasonable environmental regulations, even those that may apply only in a certain area, where the State is addressing an environmental problem peculiar to the area. Even if equal protection is implicated here, the State would only need a rational basis for the zoning restriction. Here, the State has identified a sufficient interest in this instance to justify the classification in question. The interest is plainly stated in article II, section 7 of the Constitution and is only underscored by the unique problem of the Key deer.

The right of privacy set forth in article I, section 23 also does not apply here for a self-evident reason: The decision to use land in a manner contrary to lawful public environmental policy is simply not a private act. Art. I, Sec. 23, Fla. Const. Landowners do not have an untrammeled right to use their property regardless of the legitimate environmental interests of the State.

The right of due process contained in article I, section 9 poses a somewhat different problem, because it does in fact guarantee the right to enjoy property. Within limits, that right can include decisions regarding the improvement of property. Nevertheless, this personal right does not necessarily supervene the rational concerns of public environmental policy. Due process, in other words, seeks to find a balance between public and private interests, not to make the landowner lord over the State, nor the State lord over the landowner.

The State is given wide range in exercising its lawful powers to regulate land use for environmental reasons, and any such land-use regulations thus are valid if supported by a rational basis consistent with overall policies of the State. See Board of County Comm'rs v. Snyder, 627 So.2d 469 (Fla.1993)....