Home Builders and Contractors Ass'n of Brevard, Inc. v. Department of Community Affairs

• Decision Date: 08 August 1991
• Docket Number: No. 90-128,90-128
• Citation: 585 So.2d 965
• Parties: HOME BUILDERS AND CONTRACTORS ASSOCIATION OF BREVARD, INC. and Florida Home Builders Association, Appellants, v. DEPARTMENT OF COMMUNITY AFFAIRS, Florida League of Cities and Charlotte County, Appellees. 585 So.2d 965, 16 Fla. L. Week. D2087
• Court: Florida District Court of Appeals

Page 965

585 So.2d 965

HOME BUILDERS AND CONTRACTORS ASSOCIATION OF BREVARD, INC. and Florida Home Builders Association, Appellants, v. DEPARTMENT OF COMMUNITY AFFAIRS, Florida League of Cities and Charlotte County, Appellees.

No. 90-128.

585 So.2d 965, 16 Fla. L. Week. D2087

District Court of Appeal of Florida First District.

Aug. 8, 1991.

Vance W. Kidder of Spriggs & Kidder, P.A., Tallahassee, and Clifton A. McClelland, Jr. of Potter, McClelland, Marks & Healy, P.A., Melbourne, for appellants.

David J. Russ and Richard J. Grosso of the Dept. of Community Affairs, Tallahassee, for appellee Dept. of Community Affairs.

Kraig A. Conn of Florida League of Cities, Inc., Tallahassee, for appellee Florida League of Cities.

Scottie J. Butler, Gainesville, for amicus curiae Florida Farm Bureau Federation.

S. James Brainerd of The Florida Chamber of Commerce, Tallahassee, for amicus curiae Florida Chamber of Commerce.

Robert A. Butterworth, Atty. Gen., and Jonathan A. Glogau, Asst. Atty. Gen., Tallahassee, for amicus curiae The Atty. Gen. of Fla.

PER CURIAM.

Appellants, ¹ who will be referred to collectively as Home Builders, appeal the final order of a hearing officer of the Department of Administrative Hearings, dismissing their petition, which challenges urban sprawl Rules 9J-5.006(3)(b)7. and 9J-5.001(2)(b)3., Florida Administrative Code, and alleged nonrule policies interpreting and applying these rules. We affirm.

In 1985, the legislature passed the Local Government Comprehensive Planning and Land Development Regulation Act, (the Act), Chapter 163, part II, Florida Statutes, which requires local governments to adopt local comprehensive plans to guide and control future land development. Section 163.3177(9) required the Department of Community Affairs (DCA) to adopt, by rule, "minimum criteria for the review and determination of compliance" of local comprehensive plans. In accordance with this directive, DCA promulgated Chapter 9J-5, Florida Administrative Code, to aid the DCA in making a determination whether a local comprehensive plan is in compliance with the statutory requirements. See Sec. 163.3184(1)(b), Fla.Stat. The two rules in question in this appeal, 9J-5.006(3)(b)7. and 9J-5.001(2)(b)3., were adopted as part of 9J-5. Rule 9J-5.006(3)(b)7. requires that the future land use element of each plan contain one or more specific objectives that "discourage the proliferation of urban sprawl." Rule 9J-5.001(2)(b)3. requires that the infrastructure element of each plan contain one or more objectives that "address maximizing the use of existing facilities and discouraging urban sprawl." Urban sprawl is not defined in Chapter 9J-5, nor is urban sprawl expressly mentioned in the Act or Section 187.201, Florida Statutes, which adopts the state comprehensive plan.

Chapter 9J-5 was required to be submitted to the legislature before it could become effective. Accordingly, the 1986 legislature reviewed Chapter 9J-5, and thereafter passed Section 163.3177(10)(k) which provides in pertinent part:

It is the intent of the Legislature that there should be no doubt as to the legal standing of Chapter 9J-5, F.A.C., at the close of the 1986 legislative session.... The entire Chapter 9J-5, F.A.C., as amended, shall be subject to rule challenges under s. 120.56, as nothing herein shall be construed to indicate approval or disapproval of any portion of Chapter 9J-5, F.A.C., not specifically addressed herein. No challenge pursuant to s. 120.56 may be filed after July 1, 1987. Any subsequent amendments to Chapter 9J-5, F.A.C., exclusive of the amendments adopted prior to October 1, 1986 pursuant to this act, shall be subject to the full chapter 120 process....

In compliance with the Act, Charlotte County prepared its local comprehensive plan, but the DCA rejected the plan based largely on its failure to deal with urban sprawl. Charlotte County requested a Section 120.57 hearing to determine if its plan was in compliance. The hearing was held and the issue of urban sprawl was litigated. Similarly, the Brevard County comprehensive plan was rejected by the DCA in part because of its failure to discourage urban sprawl. A Section 120.57 proceeding concerning the Brevard County comprehensive plan was scheduled for December 1989. Home Builders intervened in the Brevard County proceeding. Ultimately, DCA's rejection of the Charlotte County plan was adopted by the Administration Commission. Department of Community Affairs v. Charlotte County and City of Punta Gorda, 12 FALR 2760 (March 15, 1990). The DCA and Brevard County settled their dispute.

After the Charlotte County 120.57 hearing, but before the Brevard County 120.57 hearing was scheduled, Charlotte County and Home Builders filed the present rule challenges. ² The rule challenges were assigned to a hearing officer and the Florida League of Cities was permitted to intervene in the proceeding. Charlotte County complained that the DCA resorted to internal unpublished nonrule policies to define the terms "discourage" and "urban sprawl" and has unlawfully implemented these urban sprawl nonrule policies. Charlotte County charged that the urban sprawl rules are invalid because, as applied, they are an invalid exercise of delegated legislative authority. Charlotte County further complained that local governments are not given clear direction on what is expected in preparing plans and contended that the rules should not be grounds for rejecting a local comprehensive plan until the DCA makes rules defining "urban sprawl" and adopts criteria explicating how DCA will apply the definition to individual plans. Home Builders' challenge was similar, but their petition also contained a direct challenge to the urban sprawl rules despite Section 163.3177(10)(k), because according to Home Builders, these rules have been amended by the adoption of nonrule policies and rule challenges to amendments to 9J-5 are permitted. In their brief, Home Builders identifies the nonrule policies they are challenging: (1) to DCA the word "discourage" in the codified rules means "prevent"; (2) DCA requires high density development in compact urban areas; (3) DCA requires large lot size outside urban areas irrespective of whether an urban service area has been designated, in order to promote compact urban development and to separate urban and rural lands; (4) DCA has published a definition of "urban sprawl" which cannot be relied on; and (5) DCA will prohibit the designation in a plan of land for residential use if it exceeds the amount of land DCA allocates for residential use over the planning period.

In the spring of 1989, in a Department of Community Affairs technical memo, DCA secretary Pelham defined urban sprawl thusly:

Urban sprawl is premature, low density development that "leap frogs" over land that is available for urban development. It is not functionally related to or integrated with other development and is not in proximity to existing urban developments, facilities and services, and, as a consequence, requires public investments for infrastructure and services that are far more expensive than they would be if they were located closer to existing facilities and services.

In the same publication, Secretary Pelham opined that the effects of urban sprawl were inefficient, costly infrastructure expenditures, sterile land use developments that lack community identity and require extensive commuting by automobile, and endangered natural resources. While DCA personnel who testified at the hearing below gave variations of this definition, overall their definitions of urban sprawl were more or less consistent with Pelham's.

At the outset, it is necessary to address the issue of Home Builders' standing to bring a rule challenge. Home Builders' alleged standing is based upon their contention that as home builders, they have an interest in the effects that urban sprawl nonrule policies will have on home building--specifically their ability to determine what areas can be developed and the densities at which they can be developed. Initially, DCA disputed Home Builders' standing; however, at the conclusion of the hearing, DCA submitted a proposed recommended order in which it conceded Home Builders' standing to bring this action. The hearing officer was of the view, as are we, that under established decisions of this court Home Builders lacked standing to bring the rule challenge. Board of Optometry v. Florida Society of Ophthalmology, 538 So.2d 878 (Fla. 1st DCA 1988); and Florida Dept. of Offender Rehabilitation v. Jerry, 353 So.2d 1230 (Fla. 1st DCA), cert. denied 359 So.2d 1215 (Fla.1978). Nevertheless, the hearing officer proceeded to address the issues in this case, apparently because standing was not a contested issue. We believe the hearing officer was correct in doing this. Standing in a Florida administrative proceeding is a judicially created prerequisite based upon statutory language and is not a constitutional jurisdictional requirement; therefore, because DCA did not contest standing below or on appeal, we will proceed as did the hearing officer. See 59 Am.Jur.2d Parties, Sec. 30 (1987).

Turning to the evidence adduced at the hearing, the testimony reflected two approaches to land development--compact urban development, and market driven development. The former uses planning tactics to discourage uncontrolled, untimely premature growth away from cities and urban service areas or urban centers which allegedly results in development not functionally related to its environment and which DCA witnesses equated with urban sprawl. The latter approach advocates development based upon market pressures and allegedly results in satellite centers away from cities and urban centers offering employment opportunities near low density...