CECILIA MATTINO v. CITY OF MARATHON, FLORIDA ( 2022 )


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  •       Third District Court of Appeal
    State of Florida
    Opinion filed August 3, 2022.
    Not final until disposition of timely filed motion for rehearing.
    ________________
    No. 3D20-1921
    Lower Tribunal No. 20-032
    ________________
    Cecilia Mattino, et al.,
    Appellants,
    vs.
    City of Marathon, Florida, et al.,
    Appellees.
    An Appeal from the State of Florida, Department of Economic
    Opportunity.
    Richard Grosso, P.A., and Richard Grosso (Plantation), for appellants.
    Shawn D. Smith, Key West City Attorney, and George B. Wallace,
    Assistant City Attorney; Smith Hawks, PL, and Barton W. Smith, Nikki
    Pappas and Christopher B. Deem, for appellees.
    Before EMAS, MILLER and LOBREE, JJ.
    EMAS, J.
    I.    INTRODUCTION
    Appellants Cecilia Mattino, Naja Girard and Catherine Bosworth,
    permanent residents of the Florida Keys, appeal from a final order of the
    Department of Economic Opportunity (DEO), which determined that the
    Comprehensive Plan Amendments adopted by the City of Key West, City of
    Marathon and City of Islamorada (collectively the Cities) are in compliance
    with Florida law. While appellants raise several claims,1 we write to address
    only the contention that the Comprehensive Plan Amendments fail to
    maintain a hurricane evacuation clearance time for permanent residents of
    no more than 24 hours, as required by section 380.0552(9)(a)2., Florida
    Statutes (2020). We agree and, for the reasons that follow, we reverse the
    order as to the City of Marathon and City of Islamorada. However, we affirm
    the order as it relates to the City of Key West.2
    1
    We affirm without further discussion as to the additional claims raised by
    appellants, which include: (1) the amendments violate the “internal
    consistency” requirement in section 163.3177, Florida Statutes; (2) the two-
    phase evacuation plan violates section 163.3177(1)(f)1., Florida Statutes,
    because it is not supported by relevant and appropriate data and analysis;
    and (3) the Agency erred in interpreting section 380.0552(7), Florida
    Statutes, to allow the general “Principles for Guiding Development” to justify
    non-compliance with the specific 24-hour evacuation time development cap
    in section 380.0552(9)(a)(2).
    2
    The cities of Marathon and Islamorada are located within the statutorily
    designated “Florida Keys Area of Critical State Concern.” In 1984, the City
    of Key West was designated an Area of Critical State Concern, pursuant to
    2
    II.    FACTUAL AND PROCEDURAL BACKGROUND
    A. The Florida Keys Area Protection Act and the 24-Hour Hurricane
    Evacuation Clearance Time Requirement
    Section 380.0552, Florida Statutes (2020), is known as the “Florida
    Keys Area Protection Act.” First enacted in 1979, the Act designates the
    Florida Keys as an Area of Critical State Concern, and expresses a
    legislative intent to establish a land use management plan to protect the
    Florida Keys environment, preserve the Keys’ unique character, promote
    orderly and balanced growth, and protect and improve water quality.
    Importantly for our purposes, the Legislature also expressed, through this
    Act, its intent to:
    Provide affordable housing in close proximity to places of
    employment in the Florida Keys.
    Ensure that the population of the Florida Keys can be safely
    evacuated.
    § 380.0552(2)(d) and (j).
    In 2006, the Florida Legislature revised the Act, adding a provision that
    all amendments to the comprehensive plans in the Florida Keys Area must
    Chapter 28-36, Florida Administrative Code. As a result, Marathon and
    Islamorada are subject to the requirements of section 380.0552(9)(a)2.,
    while Key West is not. Key West is instead subject to the Principles for
    Guiding Development contained in Florida Administrative Code, Rule 28-
    36.003.
    3
    be reviewed for compliance with the “[g]oals, objectives and policies to
    protect public safety and welfare in the event of a natural disaster by
    maintaining a hurricane evacuation clearance time for permanent
    residents of no more than 24 hours.” § 380.0552(4)(e)2.,3 Fla. Stat. (2006)
    (emphasis added). The statute further provides this evacuation clearance
    time “shall be determined by a hurricane evacuation study conducted in
    accordance with a professionally accepted methodology and approved by
    the state land planning agency.” Id.
    B. The Cities’ Current Comprehensive Plans
    Each City’s current comprehensive plan includes a DEO work program
    designed to address certain categories of concern. Relevant to this appeal,
    the work program included a list of requirements that had to be satisfied by
    July 1, 2012. Significant among them was a requirement that local
    governments within the Florida Keys Area of Critical State Concern
    (Islamorada and Marathon, but not Key West) enter into a memorandum of
    understanding with DEO, the Division of Emergency Management and each
    of the other Keys local governments to stipulate to “input variables and
    assumptions, including regional considerations, for utilizing the Florida Keys
    3
    The language of this provision has remained unchanged since its adoption
    in 2006, but in 2010 was renumbered to section 380.0552(9)(a)2.
    4
    Hurricane Evacuation Model or other models acceptable to the Department
    to accurately depict evacuation clearance times for the population of the
    Florida Keys.” Fla. Admin. Code R. 28-20.140. Further, the model had to be
    run so as “to complete an analysis of maximum build-out capacity for the
    Florida Keys Area of Critical State Concern, consistent with the requirement
    to maintain a 24-hour evacuation clearance time and the Florida Keys
    Carrying Capacity Study constraints.” Id.
    In 2012, the DEO created the Hurricane Evacuation Clearance Time
    Workgroup (the Evacuation Workgroup), which held a series of public
    workshops. The Evacuation Workgroup ultimately presented its findings and
    selected a hurricane model (the Transportation Interface for Modeling
    Evacuations, “TIME”) to accurately depict evacuation clearance times for the
    population of the Keys Area of Critical State Concern and the Key West Area
    of Critical State Concern. The selected scenario included the continuation
    of then-existing annual building permit allocations and produced an
    evacuation clearance time of 24 hours, with a future allocation of 3,500 new
    residential building permits to be distributed over a ten-year period from 2013
    to 2023. Each local government would be allotted their share of residential
    building permits from the 3,500 additional units accounted for in the TIME
    model.
    5
    This evacuation scenario assumed a two-phase evacuation plan, with
    Phase I (the “first” 24-hour evacuation period) consisting of non-residents,
    visitors, recreational vehicles, travel trailers, live-aboards (transient and non-
    transient), military personnel, mobile home residents, special needs
    residents, and hospital and nursing home patients. The Phase I evacuation
    was further divided into two groups with military personnel, tourists, and
    other non-residents ordered to evacuate approximately 48 hours in advance
    of predicted arrival of tropical storm force winds; and mobile home residents,
    special needs residents, and hospital and nursing home patients ordered to
    evacuate approximately 36 hours in advance of predicted arrival of tropical
    storm force winds.
    Phase II (the “second” 24-hour evacuation period) consisted of Florida
    Keys permanent residents living in site-built homes (as opposed to
    prefabricated units such as mobile homes). These permanent residents were
    to be evacuated approximately 30 hours in advance of the predicted arrival
    of tropical force storm winds.
    In 2012, Monroe County and the Cities entered into a memorandum
    of understanding with DEO, agreeing to use the TIME model described
    above.     The memorandum of understanding memorialized the staged
    evacuation procedure ultimately adopted by the local governments:
    6
    • Approximately 48 hours in advance of tropical storm winds, a
    mandatory evacuation of non-residents, visitors, RVs, travel trailers,
    live-aboards (transient and non-transient), and military personnel from
    the Keys must be initiated.
    • Approximately 36 hours in advance of tropical storm winds, a
    mandatory evacuation of mobile home residents, special needs
    residents, and hospital and nursing home patients from the Keys shall
    be initiated.
    • Approximately 30 hours in advance of tropical storm winds, a
    mandatory phased evacuation of permanent residents by evacuation
    zone . . . shall be initiated.
    C. The Cities’ Amendments to the Comprehensive Plans
    The recent effort to address affordable housing in the Florida Keys
    began in 2017, when DEO determined amendments to the comprehensive
    plans were needed because the current regulatory structure did not allow for
    adequate building permits to create affordable workforce housing for Florida
    Keys residents. To address the issue, DEO developed The Keys Workforce
    Housing Initiative (the Housing Initiative).
    The Housing Initiative allows for up to 1,300 new building permit
    allocations for “workforce-affordable housing” throughout the Keys. The
    Initiative’s stated goal is to support the Cities’ “workforce by alleviating
    constraints on affordable housing,” and to “require new construction or
    repurposed structures that participate[] to commit to evacuating renters in
    the 48-24-hour window of evacuation.” This initiative includes a requirement
    7
    that these new units be deed-restricted to ensure that “tenants evacuate
    during the period in which transient units are required to evacuate.”
    Nevertheless, any amendments to a comprehensive plan must comply
    with the statutory requirement of “maintaining a hurricane evacuation
    clearance time for permanent residents of no more than 24 hours.” §
    380.0552(9)(a)2., Fla. Stat. (2020).       In other words, the additional
    development of affordable housing (and the accompaniment of additional
    permanent residents) is legislatively capped to ensure that all permanent
    residents can still safely evacuate the Florida Keys within a 24-hour period.
    As previously described, the current comprehensive plans rely upon a
    two-phase evacuation plan in the event of a hurricane, and identify several
    categories of people (e.g., visitors, tourists, permanent residents, etc.) for
    evacuation over a combined 48-hour period. This 48-hour period is divided
    into two separate 24-hour phases (Phase I and Phase II).
    The Comprehensive Plan Amendments (the Amendments) would add
    those permanent residents living in the 1,300 new housing units to the
    categories of people designated for Phase I evacuation (i.e., the “first” 24
    hours). This would mean that permanent residents would be evacuated
    during both Phase I and Phase II, and therefore the Cities would be
    8
    evacuating permanent residents of the Keys over a two-phase, 48-hour
    period:
    ► Phase I (the first 24-hour evacuation period) provides for mandatory
    evacuation of non-residents, visitors, recreational vehicles, travel
    trailers, live-aboards (transient and non-transient), military personnel,
    mobile home residents, special needs residents, hospital and nursing
    home patients, and permanent residents of the 1,300 affordable
    housing units approved for construction by the Amendments.
    ► Phase II (the second 24-hour evacuation period) provides for
    mandatory evacuation of all permanent residents living in site-built
    homes.
    The Cities thereafter adopted the Comprehensive Plan Amendments,
    which allow new residential units to be built in Key West (300 to 700 units),
    Islamorada (300 units) and Marathon (300 units). The Plan Amendments are
    virtually identical in all material respects.   Consistent with the Housing
    Initiative, the Comprehensive Plan Amendments require that the additional
    units be deed-restricted for workforce affordable housing and—critically for
    our purposes—that the new permanent residents of these 1,300 permanent
    residential units evacuate in Phase I of the two-phase evacuation plan.
    9
    In 2018, appellants filed petitions for a formal administrative hearing
    with DOAH, asserting that the Cities’ Comprehensive Plan Amendments are
    inconsistent with and violate the statutory requirement of maintaining a 24-
    hour evacuation clearance time for permanent residents. The administrative
    law judge conducted a final hearing in December 2019, at which the parties
    presented numerous witnesses and experts in support of their respective
    positions. The administrative law judge issued a recommended order (and
    later, a recommended order on remand following a hearing on exceptions
    raised to the original order). DEO later issued its Final Order, adopting the
    administrative law judge’s recommended order on remand, and determining
    that the Comprehensive Plan Amendments do not violate section
    380.0552(9)(a)2., and are otherwise in compliance with Florida law. This
    appeal followed.
    III.   STANDARD OF REVIEW
    The Agency’s findings of fact are reviewed for competent substantial
    evidence, while questions of law, including interpretation and construction of
    statutory provisions, are reviewed de novo. Safirstein v. Dep't of Health, 
    271 So. 3d 1178
    , 1180 (Fla. 3d DCA 2019) (“Our standard of review of an
    agency's interpretation of a statute is de novo. The standard of review of the
    agency's findings of fact is that of competent, substantial evidence”)
    10
    (quotation omitted). “[A] reviewing court may set aside agency action when
    it finds that the action is dependent on findings of fact that are not supported
    by substantial competent evidence in the record, there are material errors in
    procedure, incorrect interpretations of law, or the agency abused its
    discretion.” Galvan v. Dep't of Health, 
    285 So. 3d 975
    , 979 (Fla. 3d DCA
    2019) (citing § 120.68, Fla. Stat. (2018)).
    IV.   DISCUSSION AND ANALYSIS
    Section 380.0552(9)(a)2. provides in relevant part:
    9) Modification to plans and regulations.--
    (a) Any land development regulation or element of a local
    comprehensive plan in the Florida Keys Area may be enacted,
    amended, or rescinded by a local government, but the
    enactment, amendment, or rescission becomes effective only
    upon approval by the state land planning agency. The state land
    planning agency shall review the proposed change to determine
    if it is in compliance with the principles for guiding development
    specified in chapter 27F-8, Florida Administrative Code, as
    amended effective August 23, 1984, and must approve or reject
    the requested changes within 60 days after receipt.
    Amendments to local comprehensive plans in the Florida
    Keys Area must also be reviewed for compliance with the
    following:
    ***
    2. Goals, objectives, and policies to protect public safety and
    welfare in the event of a natural disaster by maintaining a
    hurricane evacuation clearance time for permanent
    residents of no more than 24 hours. The hurricane evacuation
    clearance time shall be determined by a hurricane evacuation
    study conducted in accordance with a professionally accepted
    methodology and approved by the state land planning agency.
    11
    (Emphasis added).
    We examine the statute, and construe its provisions, within the
    framework established by longstanding principles of statutory construction:
    Legislative intent is the polestar that guides a court's statutory
    construction analysis, and “[t]o discern legislative intent, a court
    must look first and foremost at the actual language used in the
    statute.” Larimore v. State, 
    2 So. 3d 101
    , 106 (Fla. 2008). “It is a
    fundamental principle of statutory construction that where the
    language of a statute is plain and unambiguous there is no
    occasion for judicial interpretation.” Forsythe v. Longboat Key
    Beach Erosion Control Dist., 
    604 So. 2d 452
    , 454 (Fla. 1992).
    DMB Inv. Tr. v. Islamorada, Vill. of Islands, 
    225 So. 3d 312
    , 317 (Fla. 3d
    DCA 2017).
    A court's determination of the meaning of a statute begins with
    the language of the statute. If that language is clear, the statute
    is given its plain meaning, and the court does not look behind the
    statute's plain language for legislative intent or resort to rules of
    statutory construction.”
    Halifax Hosp. Med. Ctr. v. State, 
    278 So. 3d 545
    , 547 (Fla. 2019) (citations
    and quotations omitted).
    Under the Comprehensive Plan Amendments of Marathon and
    Islamorada, the permanent residents of the newly added affordable housing
    units must evacuate “in the 48 to 24-hour window of evacuation,” described
    by the Cities as the “Phase I clearance window of evacuation.”
    However, the mandatory evacuation of these permanent residents in
    Phase I of a 48-hour, two-phase evacuation plan means that permanent
    12
    residents will be evacuating in both Phase I (the first 24-hour period) and in
    Phase II (the second 24-hour period), resulting in a hurricane evacuation
    clearance time for permanent residents of more than 24 hours. This violates
    section 380.0552(9)(a)2., which unambiguously requires that amendments
    to the comprehensive plan “maintain[] a hurricane evacuation clearance time
    for permanent residents of no more than 24 hours.” (Emphasis added).
    Marathon and Islamorada counter that the statutory 24-hour
    evacuation requirement can be met if evacuation of the permanent residents
    living in these additional units can be completed within the first 24 hours of
    a 48-hour evacuation scenario. But the statute does not contemplate, much
    less permit, a “first” 24-hour or “Head Start” scenario for evacuation of some
    of Florida Keys’ permanent residents, followed by an evacuation of the
    remaining permanent residents in a second 24-hour period.           Instead, it
    provides for a single, 24-hour evacuation clearance time for all permanent
    residents.4
    4
    Marathon and Islamorada do not dispute that, under the Amendments,
    permanent residents are evacuated over a period of more than 24 hours.
    Instead, they contend that their existing comprehensive plans already
    provide for the evacuation of certain permanent residents in one 24-hour
    period (e.g., mobile home residents) before the evacuation of permanent
    residents in a second 24-hour period (e.g., residents of site-built homes), that
    such plans were previously administratively deemed to be in compliance,
    and that we should defer to such an administrative determination. We do
    not agree. First, the validity of the current comprehensive plans is not before
    13
    Were we to hold that the Amendments—which provide for mandatory
    evacuation of permanent residents over a two-phase, 48-hour period—
    comply with section 380.0552(9)(a)2., so too would a three-phase (72-hour),
    four-phase (96-hour), or five-phase (120-hour) evacuation plan, all of which
    would simply be different in degree—but not different in kind—than the two-
    phase evacuation plan under the Comprehensive Plan Amendments.
    us, and is beyond our scope of review, which is limited to whether
    “[a]mendments to local comprehensive plans in the Florida Keys Area”
    comply with the required “hurricane evacuation clearance time for permanent
    residents of no more than 24 hours.” § 380.0552(9)(a)2., Fla. Stat.
    Additionally, while we recognize Florida courts have historically accorded
    great deference to an administrative agency’s own interpretation of a statute
    or rule it was charged with administering, see, e.g., United Grand Condo.
    Owners Inc. v. Grand Condo. Ass’n, Inc., 
    929 So. 2d 24
    , 25 (Fla. 3d DCA
    2006) (noting: “An administrative agency's interpretation of a statute which it
    is legislatively charged with administering is entitled to great weight and
    should not be overturned unless clearly erroneous”), Florida voters in 2018
    adopted Article V, § 21 of the Florida Constitution, prohibiting such
    deference:
    In interpreting a state statute or rule, a state court or an officer
    hearing an administrative action pursuant to general law may not
    defer to an administrative agency's interpretation of such statute
    or rule, and must instead interpret such statute or rule de novo.
    Finally, we note that even before adoption of this constitutional amendment,
    Florida law provided that “a court need not defer to an agency’s construction
    or application of a statute if special agency expertise is not required, or if the
    agency’s interpretation conflicts with the plain and ordinary meaning of the
    statute.” Hous. Opportunities Project v. SPV Realty, LC, 
    212 So. 3d 419
    , 426
    n. 9 (Fla. 3d DCA 2016) (quoting Fla. Hosp. v. Fla. Agency for Health Care
    Admin., 
    823 So. 2d 844
    , 848 (Fla. 2d DCA 2002)).
    14
    Marathon and Islamorada cannot avoid the plain and unambiguous
    language of the statute merely by creating discrete “categories” of
    permanent residents, each assigned a different 24-hour timeframe within
    which to evacuate those permanent residents using the very same and
    solitary roadway leading out of the Keys.5
    The 24-hour hurricane evacuation clearance time mandate is in
    furtherance of the Florida Keys Area Protection Act’s goal of ensuring “that
    the population of the Florida Keys can be safely evacuated.”6 It serves as
    the counterpoint to the Act’s other stated goal of providing affordable housing
    to Florida Keys permanent residents. The Act permits the development of
    additional affordable workforce housing, but only to the extent that the well-
    5
    To be clear, our holding does not prohibit a staggered evacuation of
    permanent residents by geographical zones, categories, or phases. It simply
    means that all permanent residents evacuating under any such plan must do
    so within 24 hours as required by the statute.
    6
    Martin Senterfitt, Monroe County’s Director of Emergency Management,
    testified at the hearing that, while rapid intensification storms are not a
    “common occurrence,” they are possible and require that permanent
    residents be able to evacuate in a 24-hour period:
    A rapid intensification storm is a storm that—just as its name
    implies. It rapidly grows over a period of 24 hours, much—much
    faster than a normal storm would grow.
    ***
    We may have less than 48 hours, and so I’ve challenged all of
    our citizens in the community to ask themselves, if you only had
    24-hour notice, how would that impact your planning?
    15
    being of its permanent residents can be maintained by ensuring that such
    increased housing does not threaten their safe evacuation in the event of a
    natural disaster. The two-phase evacuation plan contained in Marathon and
    Islamorada’s Comprehensive Plan Amendments fails to meet the statute’s
    mandate, and the Department of Economic Opportunity (DEO) erred in
    concluding that the Comprehensive Plan Amendments by Marathon and
    Islamorada were in compliance with the applicable requirements of Florida
    law.
    We are keenly aware of the well-intended objectives and meritorious
    goals embodied within the Comprehensive Plan Amendments of Marathon
    and Islamorada. We further acknowledge the substantial challenge those
    cities face in attempting to balance the competing interests at stake.
    Nevertheless, we “do not have the authority to ignore plain and unambiguous
    language under the guise of interpretation.” Housing Opportunities Project v.
    SPV Realty, LC, 
    212 So. 3d 419
    , 421 (Fla. 3d DCA 2016) (quoting 2A
    Sutherland Statutory Construction § 46:4 (7th ed.) (November 2016
    Update)).
    Indeed, “unambiguous language is not subject to judicial construction,
    however wise it may seem to alter the plain language.” State v. Jett, 
    626 So. 2d 691
    , 693 (Fla. 1993). If the plain language of the statutory text does not
    16
    properly reflect the legislative intent, it falls upon that body, and not this court,
    to amend the statute to reflect that intent. See Crosby v. Nat’l Foreign Trade
    Council, 
    530 U.S. 363
    , 390-91 (2000) (Scalia, J., concurring) (“The only
    reliable indication of that [legislative] intent—the only thing we know for sure
    can be attributed to all of them—is the words of the bill that they voted to
    make law”); Fla. Convalescent Ctrs. v. Somberg, 
    840 So. 2d 998
    , 1001 (Fla.
    2003) (“Logically, if the Legislature had intended for the Nursing Home Act
    to be limited by the Wrongful Death Act, it would have said so, rather than
    broadly providing not only for damages but also for a personal representative
    to claim those damages”).
    V.     CONCLUSION
    We reverse the final order as to the cities of Marathon and Islamorada
    because     their   Comprehensive       Plan    Amendments        violate   section
    380.0552(9)(a)2.,      Florida    Statutes     (2020),    which     requires    that
    “[a]mendments to local comprehensive plans in the Florida Keys . . .
    maintain[] a hurricane evacuation clearance time for permanent residents of
    no more than 24 hours.” We affirm the final order in all other respects, and
    affirm en toto as to the City of Key West. The cause is remanded for further
    proceedings consistent with this opinion.
    17