General Development Corp. v. Division of State Planning, Dept. of Administration, CC-118

• Court: Florida District Court of Appeals
• Writing for the Court: SMITH; MILLS, Acting C. J., and ERVIN
• Citation: General Development Corp. v. Division of State Planning, Dept. of Administration, 353 So.2d 1199 (Fla. App. 1977)
• Decision Date: 22 December 1977
• Docket Number: No. CC-118,CC-118
• Parties: GENERAL DEVELOPMENT CORP., Petitioner, v. DIVISION OF STATE PLANNING, DEPARTMENT OF ADMINISTRATION, State of Florida, Respondent.

Page 1199

353 So.2d 1199

GENERAL DEVELOPMENT CORP., Petitioner, v. DIVISION OF STATE PLANNING, DEPARTMENT OF ADMINISTRATION, State of Florida, Respondent.

No. CC-118.

District Court of Appeal of Florida, First District.

Dec. 22, 1977.

Rehearing Denied Feb. 8, 1978.

Parker D. Thomson and Robert T. Wright, Jr. of Paul & Thomson, Miami, for petitioner.

Louis F. Hubener, III, Tallahassee, for respondent.

SMITH, Judge.

General Development Corporation (GDC) petitions for review of a "binding letter of interpretation" issued April 15, 1976, by the Division of State Planning, Department of Administration. That letter reconsidered, confirmed and expanded the Division's March 2, 1976 "binding letter" determining that GDC's segmental development of its remaining lands in Port Malabar 15,500 acres in some fifteen separate but neighboring tracts in and around the City of Palm Bay, Brevard County will constitute a development of regional impact which is subject to regulation under Section 380.06, Florida Statutes (1975). GDC urges that the Division erred (1) in vacating its prior binding letters of interpretation determining that two of the smaller tracts, designated for development as Country Club Vista and PM-55, are not developments of regional impact; and (2) in determining that all the tracts known as Port Malabar are in the aggregate a development of regional impact, although those tracts are separated from each other by developed and undeveloped lands owned by others and by GDC lands which are "vested," hence beyond the Division's Section 380.06 jurisdiction, because GDC obtained development authority from local government before Section 380.06 became fully effective. ¹

The effect of the Division's April 15, 1976 letter of interpretation is to require GDC to submit applications for development approval of each tract to local governments, subject to review under certain standards by the regional planning agency and by the Governor and Cabinet sitting as the Land and Water Adjudicatory Commission. Sections 380.06(6) through (11), .07. A developer who bypasses Section 380.06 supervision of its development of regional impact does so at its peril and, notwithstanding local zoning and building permits, the developer may be enjoined during construction. Section 380.11. To sustain GDC's position with respect to one or more of the Port Malabar tracts would release that land from Section 380.06 control. We are not concerned here with a designated area of critical state concern, as we were in Cross Key Waterways v. Askew, 351 So.2d 1062 (Fla. 1st DCA 1977); but the Division's power respecting developments of regional impact derives from the same source, the Florida Environmental Land and Water Management Act of 1972. ²

Section 380.06 required the Governor and Cabinet, acting as the Administration Commission, to adopt as rules, subject to legislative approval, guidelines and standards "to be used in determining whether particular developments shall be presumed to be of regional impact." The Administration Commission was directed to "consider and be guided by": ³

(a) The extent to which the development would create or alleviate environmental problems such as air or water pollution or noise;

(b) The amount of pedestrian or vehicular traffic likely to be generated;

(c) The number of persons likely to be residents, employees, or otherwise present;

(d) The size of the site to be occupied;

(e) The likelihood that additional or subsidiary development will be generated; and

(f) The unique qualities of particular areas of the state.

Effective July 1, 1973, but subject to legislative approval, the Administration Commission adopted Chapter 22F-2, Fla.Admin.Code, providing that various developments of a certain character or density "shall be presumed to be a development of regional impact." Legislative approval was granted by HCR 1039, Fla.Laws (1973). Rule 22F-2.10, concerning residential developments, provides in relevant part that, in Brevard and other counties having a population between 100,001 and 250,000, a proposed residential development that is planned to accommodate more than 1,000 dwelling units shall be presumed to be a development of regional impact and subject to Section 380.06. The Rule further provides:

(2) As used in this section the term "residential development" shall include but not be limited to:

(a) the subdivision of any land attributable to common ownership into lots, parcels, units or interests, or

(b) land or dwelling units which are part of a common plan of rental, advertising, or sale, or

(c) the construction of residential structures, or

(d) the establishment of mobile home parks.

To alleviate a developer's "doubt whether his proposed development would be a development of regional impact," Section 380.06(4) provides that the Division of State Planning shall issue binding letters of interpretation resolving those doubts. Such letters "bind all state, regional, and local agencies, as well as the developer." Section 380.06(4)(a).

History of this controversy.

GDC designates as "Port Malabar" all its past and present holdings, in varying stages of development, in and around the City of Palm Bay. Portions of Port Malabar extend from Indian River 12.5 miles westward through the city and into the county. The southern boundary of the southernmost tract is roughly twelve miles from the north boundary of the northernmost tract. Of the total of 42,000 acres, 26,500 acres were "vested" by prior development authority given GDC by local governments. The 15,500 acres in Port Malabar which remain potentially subject to Section 380.06 lie in some fifteen tracts, ranging in size from less than a quarter-quarter section to one of roughly fourteen sections or 9,000 acres. The tracts are separated from each other by vested lands of GDC development or by lands owned by others. Some unvested Port Malabar tracts are within 500 feet of another and some are as distant as 7.5 miles.

The Division's determination that GDC's unvested 15,500 acres are in the aggregate a development of regional impact culminated agency proceedings which were concerned primarily with proposed development of three particular tracts: one of 59.4 acres, in which GDC proposed development of 885 dwelling units, called Country Club Vista; a nearby tract of 124.22 acres, for which GDC proposed 223 dwelling units, called PM-55; and Tract E, containing 1,600 acres for which GDC originally contemplated residential development above the 1,000 unit threshold at which the Rule presumes regional impact. The present controversy arose when GDC reduced its proposed development of Tract E to a subthreshold density of 202 dwelling units, intending thus to free Tract E for development independent of Section 380.06. The Division responded, in the March 2 and April 15, 1976 letters, by declaring all of unvested Port Malabar subject to Section 380.06 jurisdiction and vacating its prior determinations that development of Country Club Vista and PM-55 would not be of regional impact.

The first of the Division's binding letters of interpretation was issued March 28, 1974, in response to GDC's formal application for a determination that Country Club Vista was not a development of regional impact. The Division's letter announced a determination to the contrary affecting all of Port Malabar:

(T)he Division . . . has determined that the proposed Country Club Vista development in Brevard County must be considered as part of the total Port Malabar development . . . (and that) your proposed Port Malabar development is a Development of Regional Impact . . . .

The Division's March 28, 1974 binding letter did not explicate the decision, but an underlying staff memorandum expresses the view that "a single increment of a total development (cannot) be considered separately" and thus be exempted from Section 380.06 jurisdiction.

When it issued its binding letter of March 28, 1974, the Division had not ascertained which of GDC's Port Malabar lands were vested. On GDC's application, the Division made that determination May 9, 1974. Section 380.06(4)(a), Florida Statutes (1975). Finding that Country Club Vista was substantially vested and that the unvested portion was surrounded by vested GDC land and by property owned by others, the Division reevaluated the unvested portion and found in a binding letter issued May 30, 1974, that "the proposed Country Club Vista development . . . is not a Development of Regional Impact . . . ."

Having exempted Country Club Vista from the effect of Section 380.06, GDC then sought the same treatment for PM-55, a proposed development of 223 dwellings on 124.22 acres. The Division issued a binding letter of interpretation on December 23, 1974, finding that PM-55 was not in itself a development of regional impact but that "this unit should be combined" for Section 380.06 treatment with nearby Tract A or Tract C, which GDC represented on its planning map as "probable" developments of regional impact. On January 6, 1975, a Division official (not the director) wrote GDC a letter determining that GDC's planning map of Port Malabar, showing all tracts, was made "the official point of reference for determining what tracts should be considered as Developments of Regional Impact," and stating: ⁴General Development Corporation will not be required to submit one ADA (application for development approval) ⁵ designed to cover the entirety of (Port Malabar), but shall submit Applications for Development Approval for the tracts designated on said (map) as Developments of Regional Impact.

GDC's Port Malabar planning map showed the six larger tracts, lettered A through F, as "probable" developments of regional impact. The January 6, 1975 Division letter "hereby determined" that those tracts, for which particular development had not then been formally proposed, were "individual Developments of Regional Impact . . . ."

On August 7, 1975, on reconsideration of PM-55...