St. Johns River Water Management Dist. v. Consolidated-Tomoka Land Co., CONSOLIDATED-TOMOKA

Citation717 So.2d 72
Decision Date29 July 1998
Docket NumberNo. 97-2996,IDI-3 and IDI-4,CONSOLIDATED-TOMOKA,Nos. IDI-2,s. IDI-2,97-2996
Parties23 Fla. L. Weekly D1787 ST. JOHNS RIVER WATER MANAGEMENT DISTRICT, Appellant, v.LAND CO.; Indigo Development Group Inc.; Indigo Group Inc.; Indigo Group Ltd.; Patricia Lagoni as Trustee of Trust; Seaview Development Corp.; Leroy E. Folsom; James S. Whiteside, Jr., and Joan W. Whiteside; Susan Spear Root; Susan R. Graham and Chapman J. Root, II, Trustees of the Chapman S. Root 1982 Living Trust; Daniel P.S. Paul, Individually and as Trustee of the Daniel P.S. Paul Charitable Remainder Trust; Ava And Rufus, Inc.; Samuel P. Bell, III and Anne Moorman Reeves, as Tenants in Common, Appellees.
CourtCourt of Appeal of Florida (US)

William H. Congdon and Nancy B. Barnard, Palatka, for Appellant.

Frank E. Matthews, David L. Powell and T. Kent Wetherell, II of Hopping, Green, Sams & Smith, P.A., Tallahassee, for Appellees.

Thomas Crapps, Assistant General Counsel and J. Hardin Peterson, General Counsel, Governor's Legal Office, Tallahassee, for Amicus Curiae Governor Lawton Chiles.

D. Stephen Kahn, Senate General Counsel; Thomas R. Tedcastle, House General Counsel; F. Scott Boyd, Staff Attorney, Joint Administrative Procedures Committee, Tallahassee, for Amicus Curiae The Florida Legislature.

Robert A. Butterworth, Attorney General; John R. Rimes; Lee Ann Gustafson, Department of Legal Affairs, Tallahassee, for Amicus

Curiae Department of Legal Affairs, State of Florida.

Marcy I. LaHart and John J. Fumero, West Palm Beach; Karen West, Brooksville, for Amicus Curiae The South Florida Water Management District and Southwest Florida Water Management District.

Alfred O. Bragg, III and Stephanie Gehres Kruer, Tallahassee, for Amicus Curiae The Department of Community Affairs, State of Florida.

William L. Hyde and Rebecca A. O'Hara of Gunster, Yoakley, Valdes-Fauli & Stewart, Tallahassee, for Amici Curiae Florida Citrus Processors Association; Florida Fruit & Vegetable Association; United States Sugar Corporation; Sunshine State Milk Producers; Florida Forestry Association; Florida Fertilizer & Agrichemical Association; Florida Farm Bureau Federation; Florida Poultry Federation, Inc.; Florida Nurserymen & Growers Association; Florida Citrus Mutual; Florida Land Council, Inc. and A. Duda & Sons, Inc.

Jacob D. Varn, Victoria L. Weber and Donna E. Blanton of Steel, Hector & Davis, Tallahassee, for Amici Curiae Florida Home Builders Association and Florida Association of Realtors.

F. Perry Odom, General Counsel; Timothy A. Smith, Deputy General Counsel; Robert A. Gough, Assistant General Counsel, Tallahassee, for Amicus Curiae State of Florida, Department of Environmental Protection.

Terrell K. Arline, Tallahassee, for Amicus Curiae 1000 Friends of Florida, Inc.

Peter Belmont, St. Petersburg, for Amicus Curiae The Sierra Club.

David Gluckman of Gluckman and Gluckman, Crawfordville, for Amicus Curiae The Florida Wildlife Federation, Inc.

PADOVANO, Judge.

The St. Johns River Water Management District appeals a final order by an administrative law judge declaring invalid a series of its proposed rules. In broad terms, the new rules define two areas within the District as hydrologic basins and establish more restrictive permitting and development requirements within these basins. We conclude that the District acted within the authority delegated by the Legislature in proposing the rules at issue. Therefore, we reverse the order by the administrative law judge and hold that the rules are valid.

On January 17, 1997, the District published notice of its intent to revise Chapters 40C-4 and 40C-41 of the Florida Administrative Code, and related provisions of an incorporated document known as the "Applicant's Handbook: Management and Storage of Surface Waters." Among other things, the proposed revisions of these rules would add the Spruce Creek and Tomoka River Hydrologic Basins to five other hydrologic basins then existing within the District. Spruce Creek and the Tomoka River, both designated as Outstanding Waters of Florida, flow through these basins in Southeastern and Northeastern Volusia County, respectively.

The proposed changes in Chapter 40C-41 would add four new standards within the Spruce Creek and Tomoka River Hydrologic Basins. The first of these is described as a recharge standard. According to rule 40C-41.063(6)(a), three inches of runoff from directly connected impervious surfaces must be retained within a specified area of the Tomoka River and Spruce Creek Basins. Rule 40C-41.063(6)(b) creates the second new standard by establishing the criteria for floodplain storage. This rule provides that a project may not cause a net reduction in flood storage within the one hundred year floodplain of the Tomoka River and Spruce Creek. The third new standard relates to storm water management. Rule 40C-41.063(6)(c) sets construction requirements for storm water systems and specifies the kinds of systems that can be used in various circumstances. Finally, rule 40C-41.063(6)(d) establishes a riparian wildlife habitat protection zone. This new rule generally requires a developer to provide assurances that the water management system will not endanger wildlife in areas adjacent to the protected waters.

On February 21, 1997, the Consolidated-Tomoka Land Company and other parties owning property within the affected areas filed a petition for administrative determination of the validity of the proposed rules. A nearly identical petition was filed on February 24, 1997, by Sam Bell and Anne Moorman Reeves, who are also property owners affected by the proposed rules. The two petitions were consolidated for a hearing, which was concluded on April 9, 1997.

The administrative law judge determined that the proposed rules are supported by competent substantial evidence and that they are not arbitrary or capricious. These findings were based on the expert testimony and other scientific evidence presented at the hearing. Additionally, the judge rejected arguments by the property owners that the proposed rules fail to contain adequate standards, and that the District's objectives could be met by a lower cost proposal.

Although the administrative law judge determined that the proposed rules were supported by the evidence, he concluded that most of them were invalid as a matter of law. The major theme of the final order is that the rules are an invalid exercise of legislative authority because they are not within "particular powers and duties" granted by the enabling statute. See § 120.52(8) Fla. Stat. (Supp.1996). Specifically, the judge held that rule 40C-41.023 defining the Spruce Creek and Tomoka River Hydrologic Basins and rules 40C-41.063(6)(a)-(d) containing the four new standards within the basins were invalid as a violation of section 120.52(8)(b) because they exceed the agency's grant of rulemaking authority. As additional authority, the judge stated that the recharge standard and the riparian habitat protection zone were invalid as a violation of section 120.52(8)(c) because they enlarge, modify or contravene the law implemented. The District appeals this order.

As a preliminary matter, we note that the Legislature has changed the burden of persuasion in proceedings to challenge a proposed administrative rule. Before the 1996 revision of the Administrative Procedure Act, the courts had held that a rule was presumed to be valid, and that the party challenging a rule has the burden of establishing that it is invalid. See Agrico Chem. Co. v. State, Dept. of Envtl. Regulation, 365 So.2d 759 (Fla. 1st DCA 1978); Dravo Basic Materials Co., Inc. v. State, Department of Transp., 602 So.2d 632 (Fla. 2d DCA 1992). Although these principles continue to apply in a proceeding to challenge an existing rule, see section 120.56(3), as well as a proceeding to challenge an agency statement defined as a rule, see section 120.56(4), the burden of persuasion is now reversed in a proceeding under section 120.56(2) to challenge a proposed rule.

According to section 120.56(2)(c) Florida Statutes (Supp.1996), a proposed rule is "not presumed to be valid or invalid." However, section 120.56(2)(a) Florida Statutes (Supp.1996), plainly requires the agency to establish the validity of a proposed rule once it has been properly challenged. Subsection (2)(a) provides in material part:

The petition [challenging the rule] shall state with particularity the objections to the proposed rule and the reasons that the proposed rule is an invalid exercise of delegated legislative authority. The Agency then has the burden to prove that the proposed rule is not an invalid exercise of delegated legislative authority as to the objections raised.

The administrative law judge interpreted this language to mean that the agency has the ultimate burden of establishing that a proposed rule is valid, but that the challenger still has the burden of going forward with the evidence supporting the objections. On this point, we agree. Section 120.56(2)(a) requires the agency to justify a proposed rule, but that does not relieve the challenger of the duty to present the evidence necessary to provide a preliminary factual basis for the objections.

Nothing in section 120.56(2) requires the agency to carry the burden of presenting evidence to disprove an objection alleged in a petition challenging a proposed rule. Moreover, it would be impractical to impose such a requirement. As the administrative law judge explained, a petition challenging a proposed rule might include numerous objections, not all of which remain in controversy by the time of the hearing. If the agency had the burden of going forward with the evidence, it would be forced to rebut every objection made in the petition, if for no other reason than to avoid the possibility of an award of attorneys' fees for its failure to justify the proposed rule. Therefore, we...

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11 cases
  • Westphal v. City of St. Petersburg
    • United States
    • Court of Appeal of Florida (US)
    • September 23, 2013
    ...120.52(8) rejected the standard adopted by this court in St. Johns River Water Management District v. Consolidated–Tomoka Land Co., 717 So.2d 72 (Fla. 1st DCA 1998)); Consolidated–Tomoka, 717 So.2d at 79 (recognizing that the 1996 amendments to section 120.52(8) “overrule[d]” a number of ju......
  • STATE, BD. OF TRUSTEES OF INTERNAL IMPROVEMENT TRUST FUND v. Day …
    • United States
    • Court of Appeal of Florida (US)
    • September 13, 2001
    ...originally a matter of some debate.2 We considered the import of the 1996 amendments in St. Johns River Water Mgmt. Dist. v. Consolidated-Tomoka Land Co., 717 So.2d 72, 80 (Fla. 1st DCA 1998) (interpreting "particular" as requiring only that a (proposed) rule be "within the range of powers"......
  • Southwest Florida Water Management Dist. v. Charlotte Cty., No. 2D97-1626
    • United States
    • Court of Appeal of Florida (US)
    • January 5, 2001
    ...a challenger to establish the invalidity of both an existing rule and a proposed rule. See St. Johns River Water Management Dist. v. Consolidated-Tomoka Land Co., 717 So.2d 72 (Fla. 1st DCA 1998), cited with approval in Department of Bus. & Prof'l Regulation v. Investment Corp., 747 So.2d 3......
  • Crescent Miami Center, LLC v. DEPT. OF REVENUE, STATE, 3D02-3002.
    • United States
    • Court of Appeal of Florida (US)
    • September 10, 2003
    ...v. Jenkins, 469 So.2d 733 (Fla.1985); White v. Moore, 789 So.2d 1118 (Fla. 1st DCA 2001); St. Johns River Water Mgmt. Dist. v. Consolidated-Tomoka Land Co., 717 So.2d 72 (Fla. 1st DCA 1998). 6. Since Florida's documentary stamp tax statutes are patterned after the former federal documentary......
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4 books & journal articles
  • After the 1999 amendments to Florida's Administrative Procedure Act: one aspect of Consolidated-Tomoka still remains.
    • United States
    • Florida Bar Journal Vol. 74 No. 9, October 2000
    • October 1, 2000
    ...of Appeal interpreted the new 1996 APA rulemaking standard in St. Johns River Water Management District v. Consolidated-Tomoka Land Co., 717 So. 2d 72 (Fla. 1st DCA 1998). The First District construed the term "particular" in [subsections] 120.52(8) and 120.536(1) to restrict rulemaking aut......
  • The 2003 amendments to the Florida APA.
    • United States
    • Florida Bar Journal Vol. 77 No. 9, October 2003
    • October 1, 2003
    ...challenges to existing rules. (18) This is consistent with prior court rulings, including SJRWMD v. Consolidated-Tomoka Land Co., 717 So. 2d 72,76 (Fla. 1st DCA 1998). (19) The agency retains the burden of proof in challenges to proposed rules. Clarifies Challenges to Agency Statements. The......
  • An agency perspective on rulemaking in the 21st Century.
    • United States
    • Florida Bar Journal Vol. 75 No. 1, January 2001
    • January 1, 2001
    ...120.54(6) (1974). (5) Much has been written on the decision in St. Johns River Water Management District v. Consolidated-Tomoka Land Co., 717 So. 2d 72 (Fla. 1st D.C.A. 1998), and the subsequent 1999 amendments to the APA which legislatively overruled the decision. See Lawrence E. Sellers, ......
  • State agency rulemaking procedures and rule challenges.
    • United States
    • Florida Bar Journal Vol. 75 No. 1, January 2001
    • January 1, 2001
    ...was quickly limited by the First District Court of Appeal. In Consolidated-Tomoka Land Co. v. St. Johns River Water Management District, 717 So. 2d 72 (Fla. 1st DCA 1998), the court found valid proposed rules creating new standards for managing and storing of surface waters in two basins wi......

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