Florida League of Cities, Inc. v. Administration Com'n

• Decision Date: 27 August 1991
• Docket Number: 90-43 and 90-975,Nos. 90-854,89-3187,90-52,89-3056,s. 90-854
• Citation: Florida League of Cities, Inc. v. Administration Com'n, 586 So.2d 397 (Fla. App. 1991)
• Parties: FLORIDA LEAGUE OF CITIES, INC., Town of Pembroke Park, and Village of Virginia Gardens, Appellants, v. ADMINISTRATION COMMISSION and Department of Community Affairs, Appellees. TOWN OF PEMBROKE PARK, Appellant, v. STATE of Florida, ADMINISTRATION COMMISSION, Appellee. VILLAGE OF VIRGINIA GARDENS, Appellant, v. STATE of Florida, ADMINISTRATION COMMISSION, Appellee. TOWN OF PEMBROKE PARK, Appellant, v. STATE of Florida, ADMINISTRATION COMMISSION, and State of Florida, Department of Community Affairs, Appellees. 586 So.2d 397, 16 Fla. L. Week. D2269
• Court: Florida District Court of Appeals

Page 397

586 So.2d 397

FLORIDA LEAGUE OF CITIES, INC., Town of Pembroke Park, and Village of Virginia Gardens, Appellants, v. ADMINISTRATION COMMISSION and Department of Community

Affairs, Appellees.

TOWN OF PEMBROKE PARK, Appellant, v. STATE of Florida, ADMINISTRATION COMMISSION, Appellee.

VILLAGE OF VIRGINIA GARDENS, Appellant, v. STATE of Florida, ADMINISTRATION COMMISSION, Appellee.

TOWN OF PEMBROKE PARK, Appellant, v. STATE of Florida, ADMINISTRATION COMMISSION, and State of

Florida, Department of Community Affairs, Appellees.

Nos. 90-854, 89-3056, 90-52, 89-3187, 90-43 and 90-975.

586 So.2d 397, 16 Fla. L. Week. D2269

District Court of Appeal of Florida First District.

Aug. 27, 1991.

Kraig A. Conn and Jane C. Hayman, Assistant General Counsel, Tallahassee, for appellant Florida League of Cities.

David J. Russ and Karen Brodeen, Asst. Gen. Counsel, Tallahassee, for appellee Dept. of Community Affairs.

Frank E. Matthews and Michael P. Petrovich, Hopping Boyd Green & Sams, Tallahassee, for appellant Town of Pembroke Park.

Jonathan Davidson and David M. Maloney, Executive Office of Governor, and John J. Rimes, II, Office of Atty. Gen., Tallahassee, for appellee Admin. Com'n Ross A. McVoy, Barry F. Rose, Vivian F. Garfein and Carter N. McDowell, Fine Jacobson Schwartz Nash Block & England, Tallahassee, for appellant Village of Virginia Gardens.

BARFIELD, Judge.

The appeals in these six cases are brought by Florida League of Cities, Inc. (League), Town of Pembroke Park (Pembroke), and Village of Virginia Gardens (Village). All of the cases arise under the Growth Management Act, passed in 1985, and, in particular, the Local Government Comprehensive Planning and Land Development Regulation Act, sections 163.3161-163.3243, Florida Statutes (1985), which requires every municipality in the state to submit comprehensive plans to the Department of Community Affairs (DCA) by certain specific dates established for each municipality by FAC Rule 9J-11.008. If a plan is submitted late or not in compliance with the statutory requirements, the Administration Commission (Commission), composed of the Governor and Cabinet, imposes sanctions and/or specifies remedial action for the local government. The possible sanctions include a withholding of state funds from revenue sharing, grants, and other programs. With regard to this duty the Commission staff drafted a "Sanctions Policy" for use in cases of late submission and noncompliance, which was adopted by the Commission on October 24, 1989. The sanctions policies were first employed with regard to appellants Pembroke and Village. The appeals involving these two municipalities arise from the imposition of these sanctions, and the municipalities' unsuccessful attempts to receive a section 120.57, Florida Statutes, hearing on the sanctions issue. The League appeal arises from the League's unsuccessful attempt to challenge the sanctions policy of the Commission as an invalid rule. Pembroke, an intervenor in the League's rule challenge, also filed a notice of appeal.

On November 14, 1989, the League filed a petition for a section 120.56 rule challenge in which it challenged the validity of "certain unadopted, illicit rules of the Administration Commission" concerning the sanctions for noncompliance and nonsubmission of local comprehensive plans. The petition also sought a determination that section 163.3184(11), Florida Statutes (1989), constituted an illegal delegation of legislative power. Pembroke and Village, as petitioners, and the DCA, as respondent, successfully sought to intervene.

The petitioners asserted that the sanctions policies constituted rules under the definition of section 120.52(16), and that the policies and section 163.3184(11) were invalid delegations of legislative authority. The Commission denied that the policies were rules which were required to be adopted by section 120.54, or that the statute was unconstitutional. The DCA asserted that the policies were emerging agency action which did not have to be promulgated as rules at that time. The matter proceeded to final hearing on January 24, 1990. On March 2, 1990, the hearing officer issued a final order finding that the sanctions policies were not invalid rules which should have been adopted, that the sanctions policies were not subject to review in a 120.56 proceeding, and dismissing the petition.

Pembroke is a small municipality located in Broward County. Pursuant to FAC Rule 9J-12.006(4) its proposed comprehensive plan was due to be submitted to DCA for its initial compliance review October 1, 1988. The plan was not mailed by Pembroke to DCA until December 28, 1988, and was stamped as received by DCA January 9, 1989. By letter dated January 17, 1989, DCA advised Pembroke that the plan was not complete, and that the planning documents should not be transmitted until a public hearing was held in accordance with FAC Rule 9J-11.008(1)(a). The letter advised that the transmittal requirements should be met, and the omitted items provided. By letter dated January 23, 1989, the Commission advised Pembroke that DCA filed a notice that Pembroke was more than 90 days late in submitting its plan.

The letter also advised that the DCA notice requested the Commission to impose sanctions on Pembroke and set forth the procedure and deadlines which would be employed in the determination of the issue. It directed Pembroke to file a response to DCA's notice within 30 days, and provided for a meeting to be conducted by the Administration Commission within 15 days which "will operate as an informal proceeding under section 120.57(2), F.S., unless the local government files with its response a substantiated allegation that the 90-day period has not yet elapsed." The letter further provided that within 20 days of the meeting DCA would file a recommendation as to the appropriate sanctions to be imposed, and that the Commission staff would then submit a proposed order to the Commission for final action.

On July 27, 1989, Pembroke submitted its four page response detailing the history, beginning in January 1987, of Pembroke's attempts to formulate its comprehensive plan. According to the response, Pembroke knew the plan was due October 1, 1988, but that its attorney spoke with a representative from DCA and concluded that the imposition of sanctions was "remote" due to "the complexity of the situation" and DCA's awareness of the difficulties Pembroke was experiencing completing the plan on time. According to the response, the completed plan was transmitted to DCA "in early March 1989."

On August 3, 1989, DCA sent a memorandum to the Commission detailing the state funding provided to Pembroke since 1987 to assist in its completion of its comprehensive plan, summarizing Pembroke's efforts to compile a plan, and recommending that Pembroke be sanctioned by withholding of annual state revenue sharing in an amount equal to the fraction of the year (5.3 months) that the plan was late. A copy of DCA's recommendation was provided for Pembroke. The DCA's cover letter explained that the DCA's recommendation was predicated on the March 10, 1989 receipt of the plan, five months late. The letter also directed any questions to the chief of the bureau of local planning.

A hearing was held on the matter before the Commission on September 26, 1989, at a regularly scheduled meeting of the Governor and Cabinet. Also before the Commission for possible sanctions for late submission were Indian Creek Village and the Village of Virginia Gardens. The attorney for Pembroke spoke on its behalf and asserted that the plan was submitted late and in an incomplete form, because of a series of errors by the planner hired to prepare it, and because of political turmoil and internal problems, Pembroke's elected officials were unaware of what was occurring. He asserted that since the deficiencies were brought to Pembroke's attention, it had worked diligently to remedy the problems and produce a proper plan which was submitted in March 1989. He also argued that the proposed sanction, amounting to $191,000, would be 10% of Pembroke's annual budget, and was a disproportionate sanction for the nature of the offense. He asked that $5,940 worth of revenue sharing be withheld instead. Also speaking before the Commission was one of Pembroke's commissioners, who reiterated the attorney's comments. Also speaking before the Commission was a representative of the Florida Audubon Society, and the Secretary of DCA, who urged the Commission to impose sanctions on the small communities whose plans were admittedly late and/or not in compliance.

The members of the Commission then undertook a discussion of how the statutory sanctions should be applied. The Governor favored an approach under which the state funding was withheld permanently, but the Treasurer indicated he preferred some method by which some of the funds might be released once the municipality was in compliance. The Commission could not agree how to proceed with regard to the three communities before it at that meeting and, noting that this was the first time it was considering the imposition of sanctions for failure to file a comprehensive plan, moved for staff to formulate a policy for the imposition of sanctions. The three items concerning the municipalities were deferred until the October 24 meeting.

On October 24 the sixth item on the agenda was the presentation of the staff's recommendation of a general policy for imposing sanctions for late submittal, followed by the deferred consideration of the three municipalities' late submission of their plans. As part of the Commission's consideration of the proposed sanctions policy the League, DCA, Pembroke, and Village through their representatives, spoke briefly. The League and the two municipalities all objected to the promulgation of the policy without input from the affected local governments, and to the severity of the sanctions, and the ...