CECILIA MATTINO, ET AL.,

v.

CITY OF MARATHON, FLORIDA, ET AL.,

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.

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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

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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 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.

• 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 to¹,300 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

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”)

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.

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

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

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)).

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?

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.