COUN. OF LOWER KEYS v. Charley Toppino & Sons, Inc.

429 So. 2d 67, 1983 Fla. App. LEXIS 20793

• Court: District Court of Appeal of Florida
• Decided: April 5, 1983
• Docket: 82-1892
• Status: Published

Opinion

429 So.2d 67 (1983)

COUNCIL OF THE LOWER KEYS, Appellant,
v.
CHARLEY TOPPINO & SONS, INC., and the State of Florida, Department of Environmental Regulation, Appellees.

No. 82-1892.

District Court of Appeal of Florida, Third District.

April 5, 1983.

Milledge & Hermelee and Earl G. Gallop, Miami, for appellant.

Sireci, Allen, Kelly & Muldoon and Mark Kelly, Key West, Charles G. Stephens, Tallahassee, for appellees.

Before SCHWARTZ, C.J., and DANIEL S. PEARSON and FERGUSON, JJ.

PER CURIAM.

We agree with the conclusions of the Department of Environmental Regulation that it is not required or authorized by Sec. 163.3194(1), Fla. Stat. (1981)^[1] to deny or modify an air pollution permit, issued pursuant to Sec. 403.087, Fla. Stat. (1981) and Florida Administrative Code Rules 17-2 and 17-4, because of alleged non-compliance with local zoning ordinances, land-use restrictions or long-range development plans; and that the issuance of such a permit must be based solely on compliance with applicable pollution control standards and rules. See Sec. 403.087(4), Fla. Stat. (1981).^[2] Accordingly, the final order under review is

Affirmed.

NOTES

[1] This provision states that

163.3194 — Legal status of comprehensive plan.

(1) After a comprehensive plan or element or portion thereof has been adopted in conformity with this act, all development undertaken by, and all actions taken in regard to development orders by, governmental agencies in regard to land covered by such plan or element shall be consistent with such plan or element as adopted. All land development regulations enacted or amended shall be consistent with the adopted comprehensive plan or element or portion thereof. [e.s.]

The appellant's position that an air pollution permit is a "development order" is completely belied by the definition of that term in Sec. 163.3164(5), (6), Fla. Stat. (1981).

[2] As the Department appropriately noted:

The issuance of such a permit by this Department, however, does not relieve the permittee from any duty to comply with applicable local requirements. [e.o.]