1992-10-15 Morell to Salz MICHAEL WM. MORELL
ATTORNEY AT LAW
310 WEST COLLEGE AVENUE
ADMINISTRATIVE AND GOVERNMENTAL LAW TALLAHASSEE, FLORIDA 32301.1406 ALSO ADMITTED IN THE
ENVIRONMENTAL AND LAND USE LAW DISTRICT OF COLUMBIA
(904) 425-8300
(904) 425-8301 FACSIMILE
October 15, 1992
Via Facsimile Transmission 904/222-3806 and U.S. Mail
Diane Salz
Director of Growth Management
Florida League of Cities
210 West College Avenue
P.O. Box 1757
Tallahassee, Florida
Re: Proposed Amendment to DCA Rule 9J-5 .003, F.A.C.
Dear Diane:
• On October 13, 1992, the Department of Community Affairs filed
a Notice of Correction (notice) with the Bureau of Administrative
Code which will be published in the October 23, 1992 issue of the
Florida Administrative Weekly (F.A.W. ) . (A copy of the Department' s
notice is attached for your convenience. )
The DCA's notice states that the introductory paragraph to the
Department 's proposed amendment to Rule 9J-5. 003, which appeared in
the October 2, 1992, F.A.W. , contained a "technical error" .
In showing the introductory paragraph of Rule 9J-5 .003 as it
should have read, the Department' s notice has curiously omitted the
following language which was published in the October 2nd F.A.W.
and which has been in every draft of the DCA' s proposed amendments
to this rule since the February 1992 Workshop Draft:
"nor of changing definitions of terms used in a plan or
plan amendment adopted prior to the effective date of the
rule amendment. "
As you are aware, in 1986 the Florida League of Cities and
Florida Association of Counties were instrumental in convincing the
legislature to add language to Section 163. 3177( 10) (g) , Florida
Statutes, which recognizes that local governments may adopt
"alternative definitions . . .as long as such definitions accomplish
the intent of [chapter 163] and chapter 9J-5, F.A.C. "
Subsequent to the 1986 session, DCA conformed Rule 9J-5. 003 to
the statute and added language to the existing rule which includes:
"however, local governments may choose alternative definitions
which the Department shall review. . . "
Diane Salz
October 15, 1992
Page Two
In developing their new plans, many cities and counties
adopted alternative definitions which were reviewed by DCA and
approved by the Department. Other local governments used terms in
their plans without defining them where they were already defined
in statutes and rules then in existence. These "alternative
definitions" and relied upon usages are now an integral part of
adopted local plans which are "in compliance" and land development
regulations which implement those plans.
It appears that DCA may now be taking the position that
previously reviewed and adopted alternative definitions and
undefined usages will be "conformed" automatically to the amended
definitions as published in the October 2, 1992 F.A.W.
The League of Cities and Association of Counties should
encourage the Department to reinsert the following language after
the period in the last sentence of the introductory paragraph to
Rule 9J-5.003 as it will appear in the Notice of Correction that
` will be published in the October 23, 1992 F.A.W. :
nor of changing the meaning of terms used or defined in
a plan or plan amendment adopted prior to the effective
date of the rule amendment.
This language should make it clear that, consistent with the
intent of the 1986 legislature as expressed in Section
163 . 3177 ( 10) (g) , Florida Statutes : ( 1) interpretations of the
meaning of terms used and defined in local plans and plan
amendments adopted prior to the effective date of the rule
amendments will be required to be based on any alternative
definitions which were included in those previously adopted plans
or amendments; and (2) interpretations of the meaning of terms used
in local plans but not defined in said plan or amendments prior to
the effective date of the rule amendment, will be controlled by the
statutory or rule definition of those terms that were in effect at
the time the plan or amendment using the undefined term was
adopted.
With best personal regards, I am
Sincerely,
44.91)11Cal(Aa
Michael Wm. Morell
MWM:mm
Enclosures
cc. Kari Hebrank, Legislative Coordinator
Florida Association of Counties