Wildlife Federation v. Collier County, 1D01-1299.
| Decision Date | 28 May 2002 |
| Docket Number | No. 1D01-1299.,1D01-1299. |
| Citation | 819 So.2d 200 |
| Parties | FLORIDA WILDLIFE FEDERATION and Collier County Audubon Society, Appellants, v. COLLIER COUNTY, Florida; State of Florida, Department of Community Affairs; James A. Brown, Jr., as Trustee of East Naples Land Company; Barron Collier Partnership; Collier Enterprises, Ltd.; Consolidated Citrus Limited Partnership; Pacific Tomato Growers; Alico, Inc.; and Jack Price and Russell Priddy, individually and jointly as Eastern Collier Property Owners, Appellees. |
| Court | Florida District Court of Appeals |
Thomas W. Reese, St. Petersburg, for Appellants.
Martha Harrell Chumbler and Nancy G. Linnan of Carlton Fields, P.A., Tallahassee, and Marjorie M. Student, Assistant County Attorney, Naples, for Appellee Collier County; Jack J. Aiello, Ernest A. Cox and Patrick W. Maraist of Gunster, Yoakley & Stewart, P.A., West Palm Beach, for Appellee Eastern Collier Property Owners; Cari L. Roth, General Counsel, Shaw P. Stiller, Assistant General Counsel, Department of Community Affairs, Tallahassee, for Appellee Department of Community Affairs.
The Florida Wildlife Federation and the Collier County Audubon Society, appellants, appeal from a final order of the Department of Community Affairs, appellee, which approved a recommended order from the Division of Administrative Hearings finding amendments to the Collier County comprehensive plan to be in compliance with state law. We affirm.
In 1997, appellee, Collier County, promulgated certain amendments to its comprehensive plan, but the Department of Community Affairs rejected those amendments as not in compliance with state law. Following an administrative challenge in which appellants intervened, the Governor and Cabinet, sitting as the Administration Commission, issued a final order directing the County to take specific remedial measures with regard to its plan, one of which was that the County designate certain specified areas within the county as Natural Resource Protection Areas (NRPAs). The principal purpose of this designation is to protect indigenous fauna and flora, especially the Florida panther, a highly endangered species. The final order provided further that the NRPAs "shall be refined as actual data and analysis is made available." The Commission finally directed that within the NRPAs "only agricultural and directly-related uses and one single family dwelling unit per parcel or lot created prior to June 22, 1999, shall be allowed."
Pursuant to the order, Collier County adopted certain interim amendments to its comprehensive plan, including amendments which designated as NRPAs those areas specifically identified in the Administration Commission's final order. The Department reviewed the amendments and determined that they were in compliance with state law. Appellants subsequently challenged that determination, and the matter proceeded to a formal hearing before the Division of Administrative Hearings.
In the recommended order which followed, the administrative law judge (ALJ) discussed in detail the mapping of the NRPAs. Appellants sought expansion of these areas, based upon telemetry data gathered regarding the movement of panthers and upon a 1994 report prepared by the Florida Fish and Wildlife Commission. In rejecting the argument that the NRPA boundaries were not sufficient to protect wildlife and were not based on a thorough assessment, the ALJ observed that "the 1999 Final Order [of the Administration Commission] contemplates that the Interim NRPAs are a necessary prelude to that very assessment." He added that appellants, in effect, had asked Appellants thereafter took exception to the ALJ's recommended conclusion that the agricultural usage of land was not subject to an intensity-of-use standard. The Department rejected this exception in its final order, which adopted the ALJ's findings of fact and conclusions of law.
On appeal, appellants argue, as they did before the Department, that the NRPAs, as designated in the interim amendments, do not comply with section 163.3177(6)(a), Florida Statutes (1999).1 More particularly, appellants maintain that this statute, as well as case law and the Department's rule, require application of an "intensity" standard as to agricultural uses contained within the NRPAs. Appellants also claim that the record evidence does not establish, "beyond fair debate," that the NRPA's boundaries do not require further expansion to protect the Florida panther, as the ALJ found and as the Department accepted in its final order.
Turning to the first issue, appellants rely primarily on the following emphasized language in section 163.3177(6), which provides, in pertinent part:
(Emphasis added.)
Appellants observe that the above statute explicitly requires a designation of the "extent of the uses of land for ... agricultural... uses of land," and further that each land use, including agriculture, must be reviewed pursuant to "standards for the density or intensity of use." Because of this language, they contend the approved interim NRPA amendments are not in compliance with the statutory directives because there is no standard within them regulating the intensity of an agricultural use.
Appellants also point out that the Department's own rule, Florida Administrative Code rule 9J-5.003(60), requires designation of an intensity standard, because this rule defines "intensity" as:
[A]n objective measurement of the extent to which land may be developed or used, including the consumption or use of the space above, on or below ground; the measurement of the use of or demand on natural resources; and the measurement of the use of or demand on facilities and services.
(Emphasis added.) Appellants continue that the language in the rule clearly reflects that the use of the term "intensity" within the statute does not refer solely to buildings and structures, contrary to the Department's non-rule policy decision. Consequently, the Department's order violates not only the statute but its own rule in failing to apply an intensity-of-use standard to an agricultural land use category.
The Department of Community Affairs, Collier County and other appellees argue in response that the term "intensity" is applicable only to the presence of buildings and structures, as provided in subsection (a) of the statute. Moreover, because buildings and structures are incompatible with the agricultural use of land, there is no corresponding necessity for imposing an intensity standard on a land use designated agricultural within the NRPAs.
In that the legislature delegated to the Department the power to enforce section 163.3177, we note that we are required to be highly deferential to the agency's interpretation of such statute. As the supreme court recently reaffirmed in Verizon Florida, Inc. v. Jacobs, 810 So.2d 906 (Fla.2002), an "agency's interpretation of the statute it is charged with enforcing is entitled to great deference." See also BellSouth Telecomms., Inc. v. Johnson, 708 So.2d 594, 596 (Fla.1998). Moreover, a court will not depart from the contemporaneous construction of a statute by a state agency charged with its regulation unless the construction is "clearly erroneous." PW Ventures, Inc. v. Nichols, 533 So.2d 281, 283 (Fla.1988). Accord Miles v. Fla. A & M Univ., 813 So.2d 242 (Fla. 1st DCA 2002).
The interpretation the Department has given section 163.3177(6)(a) is not clearly erroneous. Although certain isolated portions of the statute support appellants' argument that all land use categories must be subjected to an intensity-of-use standard, an established statutory maxim emphasizes that all parts of a statute should be given effect in order to achieve a harmonious whole. See State v. Knight, 98 Fla. 891, 124 So. 461 (1929). Not only do the provisions within section 163.3177(6)(a) undergird the Department's interpretation that an agricultural use of land is excluded from an intensity review, but other pertinent statutes do as well.
Section 163.3177 is included within the Local Government Comprehensive Planning and Land Development Regulation Act.2 A primary purpose of the Act is that it be carried out in conformity with and in furtherance of the Florida Environmental Land and Water Management Act of 1972, chapter 380, in order "to utilize and strengthen the existing role, processes, and powers of local governments in the establishment and implementation of comprehensive planning programs to guide and control future development." § 163.3161(2), Fla. Stat. (1999) (emphasis added). In implementing the legislative mandate, the Department, acting in its role as the state land planning agency, is required to review local governments' proposed plans for the purpose of determining whether they are in compliance with the Act. § 163.3184(8), Fla. Stat. (...
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