Opinion
No. BJ-274.
November 25, 1986.
Appeal from the Land and Water Adjudicatory Commission.
James T. Hendrick, of Morgan Hendrick, P.A., Key West, for appellants.
Ross Stafford Burnaman, and C. Laurence Keesey, Senior Atty., Dept. of Community Affairs, Tallahassee, for appellee Dept. of Community Affairs.
By this appeal, appellants challenge the final order of the Florida Land and Water Adjudicatory Commission (Commission) adopting the hearing officer's findings of fact, and, with the exception of conclusion of law number five, the conclusions of law which would deny appellants' application for a development order in the Florida Keys Area of Critical State Concern. We affirm without comment Points II, V, and VI, and that portion of Point IV challenging the "public interest" test found in paragraph 4.1 of the Coastal Zone Protection Element of the Monroe County Comprehensive Plan. However, we reverse Points I and III, and that portion of Point IV challenging the Commission's conclusion that the Monroe County Code does not authorize a dock of the type proposed by appellants.
The genesis of this cause was appellants' 1982 application filed with Monroe County for a major development project known as Spoonbill Sound to be located on Cudjoe Key, and to consist of twenty-five duplex lots and a dock extending into Cudjoe Bay. Following extensive hearings and the concomitant accumulation of a plethora of studies, tests, plans, and permits, Monroe County adopted a resolution approving appellants' development and rezoning the property to an RU-2 (two-family residential) district, conditioned only on appellants' obtaining all required certifications prior to the construction of the dock.
Despite appellants' prodigious and successful efforts in obtaining development approval from the county, the Department of Community Affairs (Department) appeared on the scene to challenge the county's action, wielding its sword of authority afforded by section 380.07(2), Florida Statutes, to appeal to the Commission any development order affecting any area of critical state concern. The appeal was referred to the Division of Administrative Hearings. Following a de novo hearing, the hearing officer submitted an order recommending reversal of the county's development order, and recommending that development approval be denied. The only conclusion in appellants' favor was the hearing officer's conclusion of law number five that appellants' proposed dock did not require a dimensional variance from the Board of Adjustment. As stated above, apart from that latter conclusion, the Commission adopted the hearing officer's findings of fact and conclusions of law.
Under Point I, appellants challenge the application of the 1984 Florida Keys "Principles for Guiding Development," rule 27F-8.03, Florida Administrative Code. We agree that the application of those principles was improper as the rule had not at the time been submitted to the legislature for review as mandated by section 380.05(1)(c), Florida Statutes (1985). Hence, their application constituted an invalid exercise of delegated legislative authority. Accordingly, we reverse the Commission's order and remand the cause for further proceedings to allow application of the legislatively adopted version of the guiding principles. See section 380.0552(1), Fla. Stat. (1985).
Section 380.05(1)(c) provides in relevant part:
A rule adopted by the commission pursuant to paragraph (b) designating an area of critical state concern and principles for guiding development shall be submitted to the President of the Senate and the Speaker of the House of Representatives for review no later than 30 days prior to the next regular session of the Legislature. The Legislature may reject, modify, or take no action relative to the adopted rule. [Emphasis added.] . . .
See Askew v. Cross Key Waterways, 372 So.2d 913 (Fla. 1979).
Section 380.0552(1) provides:
The Florida Keys Area, the boundaries of which are described in chapter 22F-8, Florida Administrative Code, is hereby designated an area of critical state concern effective July 1, 1979. Chapters 22F-8 through 22F-13, Florida Administrative Code, are hereby adopted and incorporated herein by reference. There shall be appointed a resource planning and management committee as provided in s. 380.045.
It is of no aid to the Department and the Commission that the legislature just recently amended section 380.0552 by adopting the 1984 principles. See ch. 86-170, § 4, Laws of Florida. The amended statute bears an effective date of July 1, 1986, and gives no indication of having retroactive effect.
Next, under Point III, appellants argue that the Commission did not have jurisdiction over that portion of the dock to be constructed seaward of the mean high water line. We agree. Section 380.07 creates the Florida Land and Water Adjudicatory Commission, which consists of the Administration Commission, and gives it jurisdiction over any designated area of critical state concern. Section 380.0552(1) designates the boundaries of the Florida Keys Area of Critical State Concern as described in chapter 22F-8, Florida Administrative Code, now chapter 27F-8. Rule 27F-8.02, as promulgated by the Administration Commission, designates as the Florida Keys Area of Critical State concern all lands in Monroe County except "all lands seaward of mean high water that are owned by local, state, or federal governments. . . ." In this case, 155 feet of the proposed dock will be constructed seaward of the mean high water line over submerged lands owned by the state. Consequently, by the unequivocal language of the rule, the Commission lacked jurisdiction over the construction of the 155 foot seaward portion of the dock, control of which, instead, falls to the Departments of Environmental Regulation and Natural Resources. See sections 403.087 and 253.77; and Bartecki v. Beardsley and Department of Environmental Regulation, 471 So.2d 1325 (Fla. 1st DCA 1985).
Finally, under Point IV, appellants challenge the Commission's conclusion that the Monroe County Code does not authorize in an RU-2 zoning district a dock intended for use in common by all owners in the development, as proposed by appellants. To the contrary, we agree with the hearing officer's conclusion that the proposed dock is authorized and that its construction does not require a dimensional variance, and hold that her analysis comports with the plain meaning of the code. Section 19-196 of the Monroe County Code regulating RU-2 districts, including duplexes, allows accessory uses as permitted for RU-1 districts. In turn, section 19-194(b), entitled "Accessory Uses Permitted," permits boat docks as provided in section 19-101. That latter section requires the permitting of all proposed boat docks, and authorizes the zoning department to regulate the length, construction, and other features of any proposed dock. However, as the hearing officer correctly pointed out, only in a single family residential area are docks restricted to being accessory to a single family dwelling and to serving only the residents of that dwelling; and only in a single family residential area is a variance required to extend the dock beyond 100 feet from the mean high water line. Thus, there is no foundation in section 19-101 for the Commission's position, and we accordingly reverse.
For the foregoing reasons, we affirm in part and reverse in part, and remand the cause for further proceedings consistent with this opinion.
BARFIELD, J., concurs.
ERVIN, J., concurs and dissents with written opinion.
I agree with the Commission's ultimate conclusion in denying the development application. Unlike the majority, I have no problem in approving the Commission's application of the 1984 principles for guiding development, found in Florida Administrative Code Rule 27F-8.03 (Supp. 1985), to the development project, notwithstanding that at the time of their application they had not been submitted to the legislature for appropriate action. In that I do not regard Section 380.05(1)(c), Florida Statutes (1985), to have any relevancy to the issue at hand, I am of the view that the Commission was not required to seek legislative review of the 1984 guiding principles, and could therefore properly apply those principles to the question of whether the project should be approved.
Although subsection (1)(c) of section 380.05 clearly states that a rule adopted by the Commission designating a critical area of state concern, and providing for principles for guiding development "shall be submitted to the President of the Senate and the Speaker of the House of Representatives for review no later than 30 days prior to the next regular session of the legislature . . .", and subsection (1)(b) requires that the principles "shall apply to any development undertaken subsequent to the legislative review . . .", the above language, in my judgment, is inapplicable to the critically designated area of the Florida Keys. The controlling statute is rather Section 380.0552, Florida Statutes — not 380.05. Section 380.0552(1) designated as of July 1, 1979 the Florida Keys Area as an area of critical state concern, and incorporated by reference chapters 22F-8 through 22F-13, Florida Administrative Code. Rule 27F-8.06, formerly Rule 22F-8.06, provides the Department of Community Affairs with the authority, semi-annually, or at the direction of the Administration Commission, to, among other things, present recommendations to the Commission regarding proposed changes in the rules, including changes in the principles for guiding development.
Although section 380.0552 — unlike section 380.05 — does not provide a specific method for legislative review of recommendations made by the Administration Commission regarding rule changes, I see no reason why this court should not accept the interpretation placed upon section 380.0552 by the Department, as reflected in Rule 27F-8.06, which requires only that the Department present proposed changes in the rules to the Commission — not the legislature — for its approval. An agency's interpretation of a statute which it is legislatively charged with administering is subject to the well-recognized rule that such interpretation shall be accorded great weight and should not be overturned "unless clearly erroneous." Department of Insurance v. Southeast Volusia Hospital District, 438 So.2d 815, 820 (Fla. 1983). Since the department's construction of section 380.0552 is not clearly erroneous — there being nothing in that statute prescribing a method of legislative review — we should defer to the department's interpretation. Following the rule of judicial deference to an agency's construction of a regulatory statute that it is charged to administer is also consistent with the following two principles of statutory construction: First, that statutes must be harmonized with each other, and, in the absence of a showing to the contrary, all laws are presumed to be consistent with each other. 49 Fla.Jur.2d Statutes § 180. Second, in the event of a conflict, the special statute will prevail over a general statute in the absence of clear legislative intent to the contrary. Tribune Co. v. School Board of Hillsborough County, 367 So.2d 627 (Fla. 1979); 49 Fla.Jur.2d Statutes § 182.
The majority also refers to the recent legislative amendment to section 380.0552 by chapter 86-170, section 4, Laws of Florida, which incorporated the principles contained in the 1984 amendment to Rule 27F-8.03, but reasons that the amended statute offers no support to the Department's position, because the amended statute's effective date is July 1, 1986, and by its terms was not made retroactive. Nevertheless, section 4 of chapter 86-170 in part provides that "the principles for guiding development[,] . . . set forth in chapter 27F-8, Florida Administrative Code, . . . amended effective August 23, 1984, . . . [are] hereby adopted and incorporated herein by reference." In my judgment, the statute's reference to the administrative chapter's effective date of August 23, 1984 includes a statutory adoption of the rule's effective date, thereby validating the application of the amended principles, adopted by rule as of August 23, 1984, to the project on review.
Appellant also argues that the 1984 principles for guiding development should not be applied, since the county's approval of the project occurred in January 1984, and the 1984 principles were not adopted until August 23, 1984. Appellant is apparently of the view that the Department should be estopped from imposing the amended principles to the development project, once its application was approved by the county. This argument overlooks the fact that the county's approval was subject to de novo review by the Florida Land and Water Adjudicatory Commission. And, since the 1984 principles for guiding development were in effect when the administrative hearing was held on the subject project on October 1, 1984, I find appellant's claim to be without merit. By analogy, the mere possession of a building permit does not create a vested property right, and a permit may be revoked in situations where a zoning law has been amended subsequent to the issuance of the permit. City of Hollywood v. Hollywood Beach Hotel Co., 283 So.2d 867, 869 (Fla. 4th DCA 1973). In the instant case, because appellant never even received final approval of the development permit, estoppel clearly would not apply.
The majority also refers to Askew v. Cross Key Waterways, 372 So.2d 913 (Fla. 1979), as support for its position that the Commission's application of the 1984 amended principles to the proposed project was an invalid exercise of delegated legislative authority. Again I must disagree. Cross Key expressed concern at the process which delegated designation of critical areas and the development of principles for guiding development to the Administration Commission. However, what was declared invalid in Cross Key was 380.05(2)(a) and (b), Florida Statutes (1975), which established the standards for the location of critical areas. Id. at 925. There is no holding in Cross Key that the development or amendment of principles for guiding development is per se an invalid delegation of legislative authority.
As to issue three, relating to the question of whether the Commission has jurisdiction over the seaward portion of the proposed dock, if, as I believe, the 1984 principles can appropriately be applied to the project at hand, I see no need to address the argument directed to the Commission's lack of jurisdiction. The dock in question calls for a total length of 190 feet, with 155 feet beyond the mean high water line. The majority holds that because 380.0552(1) limits the critical area of the Florida Keys to all lands in Monroe County, except all lands seaward of the mean high water mark that are owned by local, state, or federal governments, there was no jurisdiction over the 155 feet of the dock beyond the mean high water mark.
I consider that the hearing officer was correct in his determination that the Commission has jurisdiction to review an entire project, not just that portion of the project landward of the mean high water mark. To hold otherwise would lead to the anomalous result that the Commission has review powers over only a portion of a development project located in a designated area of critical state concern. Since the crucial portion of the dock (that portion linking it to shore) is within the critical area, and since Section 380.07(2), Florida Statutes, provides the Commission with jurisdiction to review development orders, not portions of development orders, I conclude that the entire dock was subject to the Commission's review.
Finally, whether or not the Commission was incorrect in its conclusion that the Monroe County Code does not authorize in a district zoned RU-2 a dock intended for use in common by all owners in the development is immaterial to the Commission's ultimate determination that the application should be denied. In my judgment the Commission correctly applied the 1984 principles for guiding development to the proposed project in reaching its decision to deny the application. If the Commission erred in its interpretation of the Monroe County Code, the error was at most harmless.
I otherwise agree with the majority in affirming the remainder of the order on review.