General Development Corp. v. Division of State Planning, Department of AdministrationGeneral Development Corp. v. Division of State Planning, Department of Administration
- Reporters:
- ,
- Before:
- Smith
General Development Corporation (GDC) petitions for review of a “binding letter of interpretation” issued April 15, 1976, by the Division of State Planning, Department of Administration. That letter reconsidered, confirmed and expanded the Division‘s March 2, 1976 “binding letter” determining that GDC‘s segmental development of its remaining lands in Port Malabar — 15,500 acres in some fifteen separate but neighboring tracts in and around the City of Palm Bay, Brevard County — will constitute a development of regional impact which is subject to regulation under
The effect of the Division‘s April 15, 1976 letter of interpretation is to require GDC to submit applications for development approval of each tract to local governments, subject to review under certain standards by the regional planning agency and by the Governor and Cabinet sitting as the Land and Water Adjudicatory Commission. Sections
(a) The extent to which the development would create or alleviate environmental problems such as air or water pollution or noise;
(b) The amount of pedestrian or vehicular traffic likely to be generated;
(c) The number of persons likely to be residents, employees, or otherwise present;
(d) The size of the site to be occupied;
(e) The likelihood that additional or subsidiary development will be generated; and
(f) The unique qualities of particular areas of the state.
Effective July 1, 1973, but subject to legislative approval, the Administration Commission adopted Chapter 22F-2, Fla. Admin. Code, providing that various developments of a certain character or density “shall be presumed to be a development of regional impact.” Legislative approval was granted by HCR 1039, Fla.Laws (1973). Rule 22F-2.10, concerning residential developments, provides in relevant part that, in Brevard and other counties having a population between 100,001 and 250,000, a proposed residential development that is planned to accommodate more than 1,000 dwelling units shall be presumed to be a development of regional impact and subject to
(2) As used in this section the term “residential development” shall include but not be limited to:
(a) the subdivision of any land attributable to common ownership into lots, parcels, units or interests, or
(b) land or dwelling units which are part of a common plan of rental, advertising, or sale, or
(c) the construction of residential structures, or
(d) the establishment of mobile home parks.
To alleviate a developer‘s “doubt whether his proposed development would be a development of regional impact,”
History of this controversy.
GDC designates as “Port Malabar” all its past and present holdings, in varying stages of development, in and around the City of Palm Bay. Portions of Port Malabar extend from Indian River 12.5 miles westward through the city and into the county. The southern boundary of the southernmost tract is roughly twelve miles from the north boundary of the northernmost tract. Of the total of 42,000 acres, 26,500 acres were “vested” by prior development authority given GDC by local governments. The 15,500 acres in Port Malabar which remain potentially subject to
The Division‘s determination that GDC‘s unvested 15,500 acres are in the aggregate a development of regional impact culminated agency proceedings which were concerned primarily with proposed development of three particular tracts: one of 59.4 acres, in which GDC proposed development of 885 dwelling units, called Country Club Vista; a nearby tract of 124.22 acres, for which GDC proposed 223 dwelling units, called PM-55; and Tract E, containing 1,600 acres for which GDC originally contemplated residential development above the 1,000 unit threshold at which the Rule presumes regional impact. The present controversy arose when GDC reduced its proposed development of Tract E to a subthreshold density of 202 dwelling units, intending thus to free Tract E for development independent of
The first of the Division‘s binding letters of interpretation was issued March 28, 1974, in response to GDC‘s formal application for a determination that Country Club Vista was not a development of regional impact. The Division‘s letter announced a determination to the contrary affecting all of Port Malabar:
[T]he Division ... has determined that the proposed Country Club Vista development in Brevard County must be considered as part of the total Port Malabar development ... [and that] your proposed Port Malabar development is a Development of Regional Impact... .
The Division‘s March 28, 1974 binding letter did not explicate the decision, but an underlying staff memorandum expresses the view that “a single increment of a total development [cannot] be considered separately” and thus be exempted from
When it issued its binding letter of March 28, 1974, the Division had not ascertained which of GDC‘s Port Malabar lands were vested. On GDC‘s application, the Division made that determination May 9, 1974.
Having exempted Country Club Vista from the effect of
General Development Corporation will not be required to submit one ADA [application for development approval]5 designed to cover the entirety of [Port Malabar], but shall submit Applications for Development Approval for the tracts designated on said [map] as Developments of Regional Impact.
GDC‘s Port Malabar planning map showed the six larger tracts, lettered A through F, as “probable” developments of regional impact. The January 6, 1975 Division letter “hereby determined” that those tracts, for which particular development had not then been formally proposed, were “individual Developments of Regional Impact ...”
On August 7, 1975, on reconsideration of PM-55 at the request of GDC, the Division again determined that PM-55 should be combined with Tract A or Tract C “which are Developments of Regional Impact pursuant to the Division‘s letter dated January 6, 1975.” Upon a further plea by GDC, the Division on December 3, 1975 revoked its August 7 determination “[b]ased on the additional information you have provided and the specific factual circumstances regarding your development,” and stated:
Port Malabar Unit 55 is not, in and of itself, a development of regional impact, nor is it reasonably related to any other proposed development which, if aggregated, would constitute a development of regional impact.
With Country Club Vista and PM-55 now favorably determined to be free of
We must therefore revoke the January 6, 1975 letter as a planning approach for Port Malabar... . Under your current planning strategies, we feel an overall ADA, even a conceptual one, is necessary. This letter is consistent with the March 2, 1976 determination that Tract E must go through DRI review but adds the requirement that an application for all non-vested areas be submitted including PM-55 and Country Club Vista. (Emphasis added.)
GDC timely sought judicial review here.
The Division‘s power to revoke binding letters of interpretation.
The Division‘s letters of May 30, 1974 and December 3, 1975 determined that development of Country Club Vista and PM-55, projecting 885 and 223 dwelling units respectively, would not be of regional impact. GDC urges that the Division was powerless to revoke those determinations by its letters of March 2 and April 15, 1976. The Division replies that GDC dissolved an agreement with the Division which was the essential inducement for the Division‘s determinations
When both the Division and the developer agree that changed plans or new information require revision of a prior binding letter of interpretation,
Any concession of revocation power to the Division must be attended by safeguards against its abuse. The Division cannot be permitted to revoke its binding letters of interpretation, to the prejudice of developers, simply because the Division newly discovers information which if known earlier would have produced another result. Certainly the Division cannot revoke simply because it comes to believe its prior determination was ill-advised. If the Division wishes to predicate a binding letter of interpretation on its understanding of critical information submitted by the developer, or on a contemporaneous agreement with the developer affecting lands proposed for development or held in reserve, the substance of that information or agreement must be clearly stated in the binding letter of interpretation.
The Division‘s December 3, 1974 determination that development of PM-55 would not be of regional impact was influenced by an agreement between the Division and GDC, reflected in the letter and in antecedent correspondence referred to in the letter, that separate applications for development approval would be or “probably” would be submitted for Tracts A, B, C, D, E and F, as depicted on the Port Malabar planning map. The Division was content to release PM-55 from
The Division improperly revoked its May 30, 1974 determination that development of Country Club Vista would not be of regional impact. The May 30, 1974 letter referred vaguely to “information you have provided and the specific factual circumstances regarding your development,” and the Division hedged its determination by references to subsequent review “if at any time in the future this development meets standards” for developments of regional impact; but the developer‘s fortunes cannot be dangled on so slender a thread. It may well be that the Division acted to exempt Country Club Vista with the understanding or expectation that GDC would concede Division jurisdiction of Tracts A through F, but the record does not establish such a concession by GDC as early as May 1974, and there is nothing in the May 30, 1974
We cannot accede to the Division‘s view that its May 30, 1974 letter was not a binding letter of interpretation because it was not applied for on the prescribed form. While the Division then had forms, its rule prescribing their use was not effective until July 1976. Fla. Admin. Code R. 22F-1.16(2) (Supp.No. 69), eff. 7/7/76, superseded 10/13/76 (Supp.No. 72). More important, the Division cannot so undermine the effect of its own action, fairly interpreted. The letter of May 30, 1974, appears on its face to be an authoritative disposition of the matter at hand.6 If the Division wishes to identify preliminary or tentative correspondence as nondeterminative, or if it wishes to reject requests for interpretation not submitted on proper forms, that is within the Division‘s power. See n. 4 supra.
The Division‘s decision that all nonvested GDC lands in Port Malabar constitute a development of regional impact.
Although the Division was irrevocably committed on May 30, 1974, to its exemption of Country Club Vista, it retained authority to decide whether development of part or all of GDC‘s remaining acreage in Port Malabar would be of regional impact. The binding letters of interpretation issued March 2 and April 15, 1976 found that the remaining nonvested GDC land constituted a development of regional impact and that Tract E was part of the development. GDC urges that Tract E must be independently examined for
The issue presented is a mix of questions arising under
Rule 22F-2 is the source of the parties’ contentions for and against aggregating the projected unit density of separate but neighboring undeveloped tracts owned by GDC. That Rule, quoted earlier in this opinion, establishes a presumption, based on development density, that a certain proposed development in a county of a certain population will be of regional impact. The Rule presumes regional impact from development of airports; mining operations and electrical, oil storage, and port facilities of stated capacities; and recreation facilities, hospitals, industrial plant, office parks, schools, shopping centers and residential developments of a certain size, stated in terms appropriate to those types of development. Rule 22F-2 is the only substantive rule now extant which implements
“Development of regional impact,” as used in this section, means any development which, because of its character, magnitude, or location, would have a substantial effect upon the health, safety, or welfare of citizens of more than one county.
Under the statutory definition, the character or location of a proposed development may conceivably make it of regional impact though its projected magnitude or density is less than the Rule 22F-2 threshold. That is not presumed — indeed, the presumption is to the contrary — but it may nevertheless be found as a fact. Similarly, the character or location of a proposed development may relieve it of regional impact although the projected density exceeds the threshold of the Rule‘s presumption. If numbers alone were conclusive, there would be little need for the substantive definition in
For the same reasons, the Division also has power to consider a developer‘s known plans for related development of nearby lands. The Division is not bound to accept the developer‘s definition of the “development” for which the developer seeks a
Standards for Division implementation of
In implementing
A binding letter of interpretation issued by the Division under
Although the Division‘s proceedings leading to its binding letters of interpretation issued March 2 and April 15, 1976 need not have complied with the formalities of
Binding letters of interpretation, being orders, must conform also to the requirements of
The agency‘s final order in 120.57 proceedings must describe its “policy within the agency‘s exercise of delegated discretion” sufficiently for judicial review.
Section 120.68(7) . [346 So.2d at 582]
The same requirement applies as well to orders entered after informal proceedings. Although an order in informal proceedings may explicate policy in a more “summary” way,
The reviewing court shall deal separately with disputed issues of agency procedure, interpretations of law, determinations of fact, or policy within the agency‘s exercise of delegated discretion. [
Section 120.68(7) ]
The Division‘s binding letters of interpretation issued March 2 and April 15, 1975 do not satisfy statutory requirements for an order determining a party‘s substantial interests in informal proceedings. The matter before the Division for determination was whether development of GDC‘s Tract E would be of regional impact. The Division determined that Tract E is part of a development of regional impact embracing all nonvested acreage in Port Malabar. The basis for that determination is not sufficiently stated in the Division‘s orders.
It may be, as urged by GDC, that the Division has aggregated all of GDC‘s nonvested holdings in Brevard County, though they are separated from each other by vested lands of GDC and by land owned by others, simply because they are GDC‘s lands. The binding letters do not announce such a policy of aggregation. Neither do the letters explain or justify such an aggregation except in terms of the history of this particular controversy, in which the Division implies that GDC is estopped by its planning map to deny that its separate tracts are a single development. With respect to PM-55, we have relieved the Division of its part of the bargain by which the Division understood that GDC would submit separate applications for development approval for each of Tracts A through F; and we think it appropriate now to relieve GDC of its part of the same abortive agreement. Moreover, GDC never agreed to regard all of its unvested properties in Port Malabar as a single development of regional impact.
The Division‘s binding letters do not explicate facts, law or policy underlying the Division‘s decision that Tract E is part of a greater single development. It may be that the Division wishes to regard a single developer‘s contiguous properties as a single development, irrespective of separate or incomplete development plans. That position may be referable to Rule 22F-210(2), which for purposes of the presumption defines “residential development” as including:
(a) The subdivision of any land attributable to common ownership into lots, parcels, units or interests... .
If that is the Division‘s position, the Division has not said so, and it has not expressed by rule or otherwise any policy that would justify countywide aggregation, regional aggregation, or statewide aggregation of “land attributable to common ownership.” It is not for us to define a “reasonable” policy and attribute it to an agency. The agency itself must announce and explicate its policy.
The binding letter issued April 15, 1976 states:
[M]eetings with you and your staff on February 24 revealed that there [are] now at least tentative plans for three of the larger tracts.
That statement of a concession by GDC is insufficient, standing alone, to constitute or support a finding that, by standards not announced, approximately 15 separate tracts are in aggregation a residential development of regional impact.
If the Division‘s binding letters contained substantive material justifying the determinations made, those letters might well be sustained notwithstanding that the Division did not specify, as required by
This letter is consistent with the March 2, 1976 determination that Tract E must go through DRI review but adds the requirement that an application for all non-vested areas be submitted including PM-55 and Country Club Vista.
The April 15 letter having constituted in this respect a new order, it was the Division‘s duty to give GDC “an opportunity at a convenient time and place” to present countervailing evidence and argument.
If on remand the Division is of the opinion that the stated deficiencies may be corrected on the present record, the Division may do so. If the Division is of the opinion that a binding letter of interpretation conforming to this opinion will require consideration and recitation of facts not appearing in this record, further informal proceedings may be had pursuant to
MILLS, Acting C.J., and ERVIN, J., concur.
Notes
In preparing its report and recommendations the regional planning agency shall consider whether, and the extent to which:
(a) The development will have a favorable or unfavorable impact on the environment and natural resources of the region;
(b) The development will have a favorable or unfavorable impact on the economy of the region;
(c) The development will efficiently use or unduly burden water, sewer, solid waste disposal, or other necessary public facilities;
(d) The development will efficiently use or unduly burden public transportation facilities;
(e) The development will favorably or adversely affect the ability of people to find adequate housing reasonably accessible to their places of employment; and
(f) The development complies or does not comply with such other criteria for determining regional impact as the regional planning agency shall deem appropriate.