City of Key West v. Askew
This text of 324 So. 2d 655 (City of Key West v. Askew) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
CITY OF KEY WEST et al., Petitioners,
v.
Reubin O'D. ASKEW et al., Respondents.
District Court of Appeal of Florida, First District.
*656 Joseph C. Jacobs and Robert J. Angerer, of Ervin, Varn, Jacobs & Odom, Tallahassee, for petitioners.
Robert L. Shevin, Atty. Gen., and James D. Whisenand, Asst. Atty. Gen., for respondents.
On Motion to Dismiss
RAWLS, Acting Chief Judge.
The City of Key West, International Brotherhood of Electrical Workers, and more than 300 named individuals or businesses filed their petition with this Court to review what they term the "Final Agency Action" of Respondent Administration Commission[1] which promulgated Rule 22F-8 designating "[a]ll lands in Monroe County"[2] an area of critical state concern. Respondents have moved to dismiss upon the primary grounds that: 1) the action taken by Respondents is not "final agency action" within the purview of Florida Statute 120.68(1), and 2) that the Petitioners do not have standing to prosecute this appellate action in that they are not parties within the meaning of Florida Statute 120.52(9).
*657 Final Agency Action
The statutory basis for designation of areas of critical state concern is Florida Statute 380.05. By the terms of this statute, the State Land Planning Agency "may from time to time recommend to the administration commission specific areas of critical state concern." The statutory provision then charges the State Administration Commission with the responsibility to "either reject the recommendation as tendered or adopt the same with or without modification and by rule designate the area of critical state concern." (Emphasis supplied.) Florida Statute 380.031(14) states: "`Rule' means a rule adopted under chapter 120." This record discloses without contradiction that the Administration Commission sought to comply with the provisions of Chapter 120 in adopting Rule 22F-8.
We now turn to Chapter 120. Florida Statute 120.52(2) provides in part: "`Agency Action' means the whole or part of a rule or order, or the equivalent, or denial of a petition to adopt a rule or issue an order." (Emphasis supplied.) Florida Statute 120.52(3) defines "Agency Head" as the person or collegial body in a department statutorily responsible for final agency action. Florida Statute 380.05 clearly provides that the provisions for areas of critical state concern cannot be implemented until the Administration Commission adopts a rule under Chapter 120. Thus, the Administration Commission is statutorily responsible for "final agency action" in adopting a rule pursuant to the provisions of Florida Statute 380.05 and Chapter 120, Florida Statutes. The adoption of the subject rule constituted final agency action.
Standing of the City of Key West
The "Rule of Department of Administration, Administration Commission, Chapter 22F-8, Land Planning, Part 8, Boundary and Principles for Guiding Development for the Florida Keys Area of Critical State Concern, provides, inter alia:
"21F-8.02 Boundary
"The following area is hereby designated as the Florida Keys Area of Critical State Concern:
"All lands in Monroe County, except:
"1) that portion of Monroe County included within the designated exterior boundaries of the Everglades National Park and areas north of said Park;
"2) all lands seaward of mean high water that are owned by local, state, or federal governments; and
"3) excluding any federal properties.
......
"22F-8.03 Principles for Guiding Development
"A. Objectives to be Achieved
"1) Strengthen local government capabilities for managing land use and development... .
......
"5) Protection of the historical heritage of the Florida Keys and the Key West Historical Preservation District;
"6) Protection of the value, efficiency, cost-effectiveness and amortized life of existing and proposed major public investments, including:
"a. the Florida Keys Aqueduct and water supply facilities
"b. sewage collection and disposal facilities
"c. solid waste collection and disposal facilities
......
"B. Elements Requiring Regulation
"1) Planning and Administration
"a. Each local government jurisdiction should adopt a plan... .
*658 "b. Issuance of development orders should be coordinated... .
"c. Special zoning districts should be created....
"d. A community impact assessment statement should be submitted and approved prior to the issuance of zoning and rezoning orders or site plan approval. .. ."
Florida Statute 120.52(9)(a) defines "party" as: "Specifically named persons whose substantial interests are being determined in the proceeding." The boundary description in the proposed rule includes the City of Key West; the city is a local government; and extensive provisions sought by the enactment of the subject rule are directed to "strengthen the local government" and to compel the local government to initiate zoning and other ordinances pertaining to the use of land within its boundaries. Thus the City of Key West is a specifically named person whose substantial interest is being determined, and it is a party within the meaning of Chapter 120, Florida Statutes.[3]
Standing of "Citizen Petitioners"
The Petitioners in their brief filed in opposition to Respondents' motion to dismiss characterize themselves as "several hundred residents, citizens, property owners, businessmen of every description" and then bestow upon themselves the title of "Citizen Petitioners".
The instant proceeding is legislative in character. The legislature, in its wisdom, has delegated to the Cabinet, in the nomenclature of "An Area of Critical State Concern", functions analogous to those traditionally exercised by city commissions, local boards, and county commissions acting within the police power in restricting the use of real property by landowners. Such restrictions have historically been legislative in character and reviewable by the judiciary solely upon constitutional concepts. "Standing" to judicially challenge a zoning ordinance or the utilization of property by a landowner required that plaintiffs show in what manner they have been damaged as private citizens differing in kind from the general public.[4] The rationale of the prior decisions requiring a plaintiff to allege a special injury separate in kind comports with logic, especially in this age of seemingly unending litigation. It would seem to be most illogical to permit "Citizen Petitioners", who testify before sundry House and Senate committees against the enactment of a proposed bill, to subsequently litigate in the courts the wisdom of the legislature in enacting same. Although the proceedings now sought to be reviewed are analogous to the legislative process, apparently, logic has been supplanted by the new Administrative Procedure, Act.[5] Salient provisions of the Administrative Procedure Act applicable to standing of "Citizen Petitioners" are:
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Cite This Page — Counsel Stack
324 So. 2d 655, 1975 Fla. App. LEXIS 19073, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-key-west-v-askew-fladistctapp-1975.