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Askew v. Cross Keys Waterways

ELR Citation: 9 ELR 20107
Nos. No. 52, 251, 372 So. 2d 913/(Fla., 11/22/1978) Aff'd

The Florida Supreme Court holds those portions of the state's Environmental Land and Water Management Act which provide for administrative designation and regulation of areas of critical state concern invalid as an unconstitutional delegation of legislative authority. The court rules that the statutory criteria for such designations fail to delineate priorities among competing areas and resources and thus delegate to an administrative body the fundamental legislative tasks of determining which geographic areac are in the greatest need of designation and what principles should guide development in those areas. The court distinguishes as inapposite decisions upholding statutory scheme in other states which regulate development in legislatively defined areas such as wetlands or the coastal zone. Noting that the Florida Constitution, unlike that of the United States and some other states, expressly prohibits the exercise by a member of one branch of government of any powers vested in either of the other branches, the court declines to adopt the "modern" view that the non-delegation doctrine should no longer be strictly applied. The court emphasizes that its decision need not impair the state's ability to protect critical areas because the legislature may designate such areas either in advance or through ratification of administratively developed recommendations.

Counsel for Plaintiffs-Appellees
Murray H. Dubbin
Dubbin, Schiff, Berkman & Dubbin
1000 Rivergate Plaza, 444 Brickell Ave., Miami FL 33131
(305) 373-3606

Charles Netter
7211 SW 62nd Ave., Miami FL 33143
(305) 667-6453

Richard W. Ervin, Joseph C. Jacobs, Robert J. Angerer
Ervin, Varn, Jacobs, Odom & Kitchen
305 S. Gadsden St., Tallahassee FL 32302
(904) 224-9135

Counsel for Defendants-Appellants
Robert L. Shevin, Attorney General; James D. Whisenand, Deputy Attorney General; Martin S. Friedman, Ass't Attorney General
Department of Legal Affairs, The Capitol, Tallahassee FL 32304
(904) 488-2094

Adkins, Boyd, Hatchett, and Alderman, JJ. concur; England, J., concurs in a separate opinion; Overton, J., concurs in result only.