09-006014GM
U.S. Funding Group, Llc vs.
Manatee County And Department Of Community Affairs
Status: Closed
Recommended Order on Wednesday, July 28, 2010.
Recommended Order on Wednesday, July 28, 2010.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8U.S. FUNDING GROUP, LLC, )
13)
14Petitioner, )
16)
17vs. ) Case No. 09-6014GM
22)
23MANATEE COUNTY AND DEPARTMENT )
28OF COMMUNITY AFFAIRS, )
32)
33Respondents, )
35)
36and )
38)
39FLORIDA BIOMASS ENERGY, LLC, )
44AND PATRON HOLDINGS, LLC, )
49)
50Intervenors. )
52_______________________________ )
54RECOMMENDED ORDER
56Pursuant to notice, this matter was heard before the
65Division of Administrative Hearings by its assigned
72Administrative Law Judge, D. R. Alexander, on April 14-16 and
82May 3-4, 2010, in Bradenton, Florida.
88APPEARANCES
89For Petitioner: Robert K. Lincoln, Esquire
95Tracy Dillard-Spahn, Esquire
98Icard, Merrill, Cullis, Timm,
102Furen & Ginsburg, P.A.
1062033 Main Street, Suite 600
111Sarasota, Florida 34237-6093
114For Respondent: Lynette Norr, Esquire
119(Department) Department of Community Affairs
1242555 Shumard Oak Boulevard
128Tallahassee, Florida 32399-2100
131For Respondent: James A. Minix, Esquire
137(County) Sarah A. Schenk, Esquire
142County Attorney's Office
145Post Office Box 1000
149Bradenton, Florida 32406-1000
152For Intervenor: James D. Dye, Esquire
158(FBE) Patricia A. Petruff, Esquire
163Warren A. Pies, Esquire
167Dye, Deitrich, Petruff & St. Paul, P.L.
1741111 Third Avenue West, Suite 300
180Bradenton, Florida 34205-7834
183For Intervenor: Robert H. Willis, Jr., Esquire
190(Patron) Skelton, Willis, Bennett & Wallace, LLP
197Post Office Box 30
201St. Petersburg, Florida 33731-0030
205(appeared on April 14, 2010, only)
211STATEMENT OF THE ISSUE
215The issue is whether a change on the Future Land Use Map
227(FLUM) of the Comprehensive Plan (Plan) adopted by Respondent,
236Manatee County (County), by Ordinance No. 09-31 on August 11,
2462009, is in compliance.
250PRELIMINARY STATEMENT
252By Ordinance No. 09-31, the County changed the land use
262designation on a parcel of property owned by Intervenor, Patron
272Holdings, LLC (Patron), from Industrial Light (IL) to Public/
281Semi-Public-1 (P/SP(1)). The new land use designation allows,
289among other things, the use of the property as an alternative
300fuel electrical generating facility. The property is under
308contract to be sold to Intervenor, Florida Biomass Energy, LLC
318(FBE), who intends to construct and operate a biomass plant on
329the property. On September 29, 2009, Respondent, Department of
338Community Affairs (Department), published its Notice of Intent
346to Find Manatee County Comprehensive Plan Amendment in
354Compliance (Notice of Intent). On October 20, 2009, Petitioner,
363U.S. Funding Group, LLC (Petitioner or USFG), who owns property
373in the immediate vicinity of the subject property, filed with
383the Department its Petition for Administrative Hearing
390(Petition) alleging that the map change was not in compliance
400for numerous reasons. The matter was referred by the Department
410to the Division of Administrative Hearings on November 2, 2009,
420with a request that the matter be assigned to an administrative
431law judge and that a formal hearing be conducted. By Order
442dated December 8, 2009, FBE was authorized to intervene, and
452Patron was authorized to intervene by Order dated January 22,
4622010. At the request of the parties, the case was initially
473placed in abeyance pending settlement negotiations.
479By Notice of Hearing dated December 23, 2009, a final
489hearing was scheduled on April 14-16, 2010, in Bradenton,
498Florida. On April 7, 2010, the County filed a Motion in Limine
510(Motion) seeking to exclude all evidence regarding hazardous
518waste and air quality issues that were being considered by the
529Department of Environmental Protection (DEP) in a separate
537proceeding in which FBE is seeking an air permit for the
548facility. See DOAH Case No. 10-1680. (Official recognition has
557been taken of the fact that Petitioner filed a Stipulated Notice
568of Voluntary Dismissal in that proceeding on June 14, 2010, and
579jurisdiction in the case was relinquished to DEP the same day so
591that an air permit has been issued by DEP.) The Motion was
603denied at the outset of the hearing, with the understanding that
614the undersigned would determine the relevancy of the evidence,
623when offered, or at the time this Recommended Order was
633prepared. A Joint Pre-Hearing Stipulation (Stipulation) was
640filed by the parties on April 9, 2010, and a Supplemental Pre-
652Hearing Statement was filed by Petitioner the same day.
661At the final hearing, Petitioner presented the testimony of
670Dr. David W. Depew, a certified planner and accepted as an
681expert; and Scott H. Osbourn, a professional engineer with
690Golder Associates, Inc., and accepted as an expert. Also, it
700offered Petitioner's Exhibits 1-4, 4a, 5, 8-11, 13a-d, 14a-d,
70915a-d, 16-21, 21a, 22d, 22f, 22i, 22j, and 23-29. An objection
720to Exhibits 13a-d, 14a-d, and 15a-d was sustained, while a
730ruling was reserved on Exhibits 22b, 22d, 22f, 22i, 22j, and 26-
74229. The objection to those exhibits is sustained. Petitioners
751other exhibits have been received. The Department did not
760present any witnesses, but adopted the evidence of the County
770and FBE. The County presented the testimony of Gordon Hester,
780managing member of USFG; Leon Kotecki, Principal County Planner;
789and Chris A. Wigglesworth, a Department Senior Planner and
798accepted as an expert. Also, it offered County Exhibits 6-13,
80817-19, 20, 23, 24, 26, and 27, which were received in evidence.
820FBE presented the testimony of Ethel D. Hammer, a land use
831planner and accepted as an expert; and Richard F. Jensen, Jr.,
842its president. Also, it offered FBE Exhibits 1-3, 5, 10-13, and
85317-19, which were received in evidence. Except for attending
862the first day of the hearing, Patron did not otherwise
872participate in this matter. Finally, the parties offered Joint
881Exhibits 1 through 16, which were received in evidence.
890The first four volumes of the Transcript of the hearing
900were filed on June 25, 2010, while the fifth volume was filed on
913July 12, 2010. Proposed Findings of Fact and Conclusions of Law
924were filed by Petitioner and jointly by the County, Department,
934and FBE on July 14, 2010, and they have been considered in the
947preparation of this Recommended Order.
952FINDINGS OF FACT
955Based upon all of the evidence, the following findings of
965fact are determined:
968A. The Parties
9711. The Department is the state land planning agency
980charged with the responsibility for reviewing plan amendments of
989local governments, including the County.
9942. The County is a local government that administers its
1004Plan, which it amends from time to time. The County adopted the
1016Ordinance which approved the change in the FLUM being challenged
1026here.
10273. Petitioner is a Florida limited liability company with
1036offices located at 4379 Ocean Boulevard, Sarasota, Florida. It
1045owns property in the County. Petitioner appeared at the
1054transmittal hearing for the amendment and submitted comments on
1063the record in opposition to the amendment.
10704. FBE is a Florida limited liability company and has
1080contracted to purchase the subject property from Patron. It
1089operates a renewable energy development company in the County.
1098It submitted comments to the County during the adoption process.
11085. Patron is a Florida limited liability company that owns
1118the subject property. It submitted comments in support of the
1128plan amendment during the adoption process.
1134B. History of the Amendment
11396. On March 27, 2009, FBE (as agent for Patron) filed a
1151Land Development Application (application) with the County
1158Planning Department requesting approval of a FLUM change for the
1168property from IL to P/SP(1). See Joint Exhibit 1. The existing
1179IL land use authorizes office, light industry, research/
1187corporate parks, warehouse distribution, intensive commercial
1193uses, neighborhood retail uses, hotel/motel, selected single-
1200family, and residential uses. See Joint Exhibit 12. The Plan
1210describes the general range of potential uses under the new
1220category as recreational uses, sanitary landfills, permanent
1227water and wastewater treatment/storage/disposal facilities, and
1233other public facilities including, but not limited to, public
1242airports, major maintenance facilities, solid waste transfer
1249stations, and major utility transmission corridors. Id.
1256Residential uses are not allowed. One intent of the P/SP(1)
1266category is to recognize facilities associated with private
1274utilities, such as the biomass plant proposed by FBE. Id.
12847. The application indicated that FBE intends to operate a
1294sixty-megawatt biomass integrated power plant on the property
1302and to continue to retain all uses allowed by the IL category.
1314(In contrast to a power plant that uses coal or oil to generate
1327electricity, a biomass plant uses renewable energy sources such
1336vegetative materials to create electric energy.) The power
1344generated at the facility will be sold to Progress Energy
1354Florida, an investor-owned public utility. The application was
1362accepted, numbered PA-09-08, and assigned Ordinance No. 09-31.
13708. Sometime in early April 2009, a staff report was
1380prepared by the County's Principal Planner, Leon Kotecki, which
1389included land use characteristics and development trends, plan
1397amendment justification, and positive and negative aspects of
1405the application and mitigating factors. See Joint Exhibits 5
1414and 6.
14169. The staff report also included what is described as a
1427Plan Amendment Detailed Review and Land Planning Analysis that
1436discussed services and natural features, urban development
1443considerations, and consistency with the Plan, the State
1451Comprehensive Plan (State Plan), Florida Administrative Code
1458Rule Chapter 9J-5, 1 and relevant portions of the Florida Statutes
1469(2009). 2 The report recommended that the application be
1478approved. In making this favorable recommendation, the planner
1486compiled and reviewed data on land compatibility, traffic
1494impacts, and water and sanitary uses. He also took into account
1505the topography of the site, how the Coastal High Hazard Area
1516(CHHA) affected the site, its proximity to Port Manatee, and the
1527surrounding uses.
152910. On April 4, 2009, the County published an
1538advertisement of a public hearing on the application in the
1548Bradenton Herald and the Sarasota Herald Tribune . Also, letters
1558were sent to all property owners within 500 feet of the proposed
1570amendment. Petitioner received personal notice of the amendment
1578by letter dated May 20, 2009.
158411. On April 16, 2009, the Planning Commission conducted a
1594hearing on the plan amendment and by a 4-1 vote recommended
1605transmitting the amendment to the Board of County Commissioners.
161412. On April 21, 2009, the Board of County Commissioners
1624conducted a public hearing and voted 6-0 to transmit the
1634proposed amendment (as a part of a larger amendment package) to
1645the Department for its review.
165013. On June 29, 2009, the Department issued its
1659Objections, Recommendations, and Comments (ORC) report for a
1667series of map amendments, including the biomass project. See
1676Joint Exhibit 4. In the ORC, the Department lodged an objection
1687regarding the lack of sufficient planning guidelines as required
1696by Future Land Use Element (FLUE) Policy 2.2.1.22(4)(b)(i),
1704specifically noting that the amendment did not restrict the
1713property to a particular use. Id. at p. 3. That policy
1724requires that an amendment for a proposed P/SP(1) category
1733include a declaration of the specific use for which the P/SP(1)
1744category is sought. The ORC also indicated that the amendment
1754was not consistent with various goals, policies, and objectives
1763in the State Plan for the reasons cited in the Objections
1774portion of the ORC. Id. at pp. 3-4. The ORC recommended that
1786the amendment include site-specific policies establishing
1792meaningful and predictable guidelines and standards to guide
1800development on the site. Id. at p. 3.
180814. After receipt of the ORC, the County revised the plan
1819amendment by including a text amendment containing ten
1827conditions (stipulations) that would apply if the property was
1836developed as an electric generating facility using biomass fuels
1845and/or solar energy. These conditions were included in the
1854adopting ordinance as a new Section D.5.4 in the General
1864Introduction Chapter and are a part of the Plan. See Joint
1875Exhibit 10 at pp. 4-5. The new section provides that the
1886property is limited to an "electricity generating facility using
1895only biomass fuels and solar energy retaining the light
1904industrial uses as provided for in the former IL Industrial
1914Future Land Use Category applicable to the site." Id. at p. 4.
1926The section further provides that the ten conditions are
"1935minimal requirements" and that further conditions may be added
1944during the development process, as necessary. Id. at p. 5.
1954Thus, future stipulations at a later date can exceed the minimum
1965requirements in the County's Land Development Code.
197215. On August 11, 2009, the County conducted a public
1982hearing and adopted Ordinance No. 09-31, with the changes
1991presented by its staff.
199516. On September 29, 2009, the Department published its
2004Notice of Intent to find the amendment in compliance in the
2015Bradenton Herald .
201817. On October 20, 2009, Petitioner filed its Petition
2027challenging the map change and text amendment. The issues have
2037been more narrowly defined in its Proposed Recommended Order and
2047can be summarized as follows: the amendment is internally
2056inconsistent with FLUE Policy 2.2.1.22.2 and is inconsistent
2064with Rule 9J-5.006(3)(c) and Section 163.3177(6)(a), Florida
2071Statutes, because it impermissibly allows IL uses in the P/SP(1)
2081land use category; the amendment is inconsistent with Rule 9J-
20915.006(3)(c)1. and 7. and Section 163.3177(6)(a), Florida
2098Statutes, because it impermissibly expands the uses in the
2107P/SP(1) category by including IL uses and does not contain the
2118required intensity standards; the amendment is internally
2125inconsistent with FLUE Policy 2.2.1.22.4.(b)(i) because it fails
2133to declare a specific use for the IL uses; the amendment is
2145inconsistent with the financial feasibility requirements of
2152Section 163.3177(2), Florida Statutes, and Rule 9J-5.019(3); the
2160amendment is inconsistent with the requirements of Rules 9J-
21695.006(2)(b) and 9J-5.005(2)(a) and Section 163.3177(6)(a),
2175Florida Statutes, because it is not based on an analysis of the
2187best available data regarding the suitability of the site for a
2198biomass facility; and the amendment is inconsistent with the
2207requirements of Rule 9J-5.005(2)(a) because it was not based on
2217an analysis of the best available data for compatibility with
2227residential uses in the surrounding area.
2233C. The Property and Surrounding Uses
223918. Patron's property consists of around 44.4 acres and is
2249located at 11551 and 11805 U.S. Highway 41 North in the
2260northwest part of the County, just south of the Hillsborough
2270County line. The eastern side of the property adjoins U.S.
2280Highway 41, a major four-lane highway running north-south, while
2289property owned by CSX Corporation (CSX), including an active
2298railroad track, and then a large drainage canal border the site
2309on its western side. (The railroad track is around one-quarter
2319mile west of U.S. Highway 41.) West of the canal is
2330agricultural land and a large parcel owned by Port Manatee
2340designated as IL but used as conservation lands. To the south
2351(in IL-designated land) lies an aircraft parts manufacturing
2359facility owned by Trielectron Industries, which shares a
2367boundary with Petitioner's property. To the north, the site
2376adjoins property owned by Florida Power & Light Company, on
2386which a substation is located. FBE plans to connect its power
2397plant to the electric grid through this substation.
240519. The property is bisected by Armstrong Road, an unpaved
2415County-maintained road running east-west, which provides access
2422from U.S. Highway 41 to Patron's property and the land just west
2434of the CSX property. Approximately one-third of the property
2443lies north of Armstrong Road, while the remaining two-thirds lie
2453south of the road. The southern 450 to 500 feet of the site
2466consists of wetlands, forests, and vegetation, which serve as
2475both a distance and visual buffer to uses to the south and
2487southwest. (Because of these wetlands, a biomass plant would
2496have to be constructed on the middle of the site.) Immediately
2507west of the CSX property is an unpaved road that turns south to
2520provide access to row crop fields and then to an 88-acre,
2531rectangle-shaped parcel owned by Petitioner.
253620. Port Manatee, a deepwater seaport connected to the
2545Gulf of Mexico through Tampa Bay, is less than a mile north of
2558the site. The area between Port Manatee and Patron's property
2568contains port-related uses which are mostly industrial uses such
2577as construction yards and an aggregate plant. To the east of
2588the port is a closed phosphate processing plant and associated
2598phosphogypsum stacks, which are the remains after the phosphate
2607is processed.
260921. The existing zoning on the property is Planned
2618Development Encouragement Zone (PDEZ). The existing uses
2625allowed under that category include a range of light and heavy
2636industrial uses and are listed on the General Development Plan
2646approved by the County on December 4, 2008. See County Exhibits
265713 and 24. This information is relevant here because the zoning
2668classification is consistent with the County's intent to focus
2677heavy industrial uses within close proximity to Port Manatee.
268622. Development trends in the area of Port Manatee and the
2697Patron property are predominately industrial. All of the
2705surrounding development is either light or heavy industrial uses
2714with the exception of six single-family homes located on Chapman
2724Road, which terminates on the eastern side of U.S. Highway 41
2735just south of the site and extends eastward. The homes are
2746located in a strip of land extending east on Chapman Road for a
2759quarter mile or so and south for around a mile on the eastern
2772side of U.S. Highway 41 that is classified as Retail/Office/
2782Residential (ROR). That category allows a range of uses
2791including retail, wholesale or commercial uses, and public or
2800semi-public uses. Thus, the residential units have the
2808potential to eventually transition to nonresidential uses
2815without a map change. There remain a few open parcels of land
2827in the area that are available for additional development.
283623. Petitioner's property comprises around 88.7 acres.
2843The southwest corner of Patron's property lies around one-
2852quarter mile from the northeast corner of Petitioner's property.
2861Counting the 450-foot green space on the southern end of
2871Patron's property, the distance between the site of the plant
2881and Petitioner's main parcel is around 1,900 feet. Petitioner
2891also owns a narrow strip of land extending northward from the
2902main parcel to Armstrong Road. This strip adjoins the western
2912side of the CSX railroad track and provides access to the
2923property from U.S Highway 41.
292824. On November 30, 2004, the County approved a
2937residential project for Petitioner's property and rezoned the
2945land from Suburban Agriculture and Suburban Agriculture/Coastal
2952High Hazard Overlay District to Planned Development Residential/
2960Coastal High Hazard Overlay District. The project is known as
2970the Estates at Bishop Harbor. The Preliminary Site Plan for the
2981property depicted 66 lots for single-family detached residences.
2989Before any development occurred, however, the original developer
2997defaulted on the mortgage held by Petitioner, a foreclosure
3006occurred, title to the property reverted to Petitioner, and no
3016development ever occurred. The property is still vacant. At
3025the time of the hearing, Petitioner had an application pending
3035before the County to change the land use designation on 83.31
3046acres from Residential-1 (one dwelling unit per acre) to IL.
3056The outcome of that application is unknown. The remaining 5.39
3066acres are already designated IL. Based on these circumstances,
3075it is fair to infer that the long-delayed construction of the
3086planned residential subdivision is questionable.
309125. Stipulation 6 of the approval of the change in land
3102use on Petitioner's property was a requirement that a Notice to
3113Buyers be included in the Declaration of Covenants and
3122Restrictions and in the sales contracts or a separate addendum
3132to the sales contracts and final site plans that includes
3142language informing prospective homeowners that there are
3149neighboring industrial uses and the potential for future
3157industrial development including possible truck traffic and
3164noises associated with industrial uses.
3169D. Petitioner's Objections
317226. Petitioner first contends that the plan amendment is
3181internally inconsistent with FLUE Policy 2.2.1.22.2 and
3188inconsistent with the requirements of Rule 9J-5.006(3)(c) and
3196Section 163.3177(6)(a), Florida Statutes, because it permits
3203light industrial uses in the P/SP(1) land use category.
3212Petitioner argues that IL uses are not permitted in the P/SP(1)
3223category. It also argues that by failing to include specific
3233intensity standards in the amendment for the allowed IL uses,
3243the amendment is inconsistent with the requirements of Rule 9J-
32535.006(3)(c)1. and 7. and Section 163.3177(6)(a), Florida
3260Statutes. The rule requires that the FLUE contain policies
3269regulating land use categories included on the FLUM and
3278establishing standards for intensities of use for each future
3287land use category. The statute requires that each land use
3297category be defined in terms of uses allowed and include
3307standards to be followed in the control and distribution of
3317building and structure intensities.
332127. Policy 2.2.1.22 establishes the P/SP(1) land use
3329category; Policy 2.2.1.22.1 describes the intent of the
3337category; Policy 2.2.1.22.2 describes the general range of
3345potential uses in the category; and Policy 2.2.1.22.3 provides
3354the range of potential intensity for the category. The general
3364range of potential uses in the P/SP(1) category include:
3373Recreational uses, sanitary landfills,
3377permanent water and wastewater treatment/
3382storage/disposal facilities and other major
3387public facilities including but not limited
3393to, airports owned or operated by a public
3401entity, major maintenance facilities, solid
3406waste transfer stations, [and] major utility
3412transmission corridors. Also, when the
3417P/SP(1) designation is an easement on
3423privately-held property, other uses
3427consistent with the adjacent future land use
3434category or categories, where consistent
3439with the purpose of the easement and
3446consistent with all other goals, objectives,
3452and policies of this Comprehensive Plan, may
3459also be considered. (See also Policy
34652.1.1.5)
3466Policy 2.1.1.5 provides further clarification on the allowed
3474uses in this category by requiring that the County ensure the
3485availability of sufficient land in the P/SP(1) category "to
3494allow development of major public or semi-public uses (e.g.,
3503electrical generation facilities . . .) in appropriate areas
3512when compatible with surrounding development." Joint Exhibit
351912. The Plan permits light industrial uses within the P/SP(1)
3529category.
353028. Notwithstanding the broad range of uses described
3538above, FLUE Policy 2.2.1.5 provides the County with more
3547flexibility in determining the appropriate uses for any given
3556plan category. The policy states that the future land use
3566category listings of uses are "generalized," they are not "all
3576inclusive," and they "may be interpreted to include other land
3586uses which are similar to or consistent with those set forth in
3598the general range of potential uses." See Joint Exhibit 12. IL
3609uses are similar in character and intensity to the type of uses
3621listed in the P-SP(1) category. Because the property was
3630classified as IL before the amendment, all of the IL uses in
3642that category have been evaluated and determined by the County
3652to be appropriate in terms of location, impact, and intensity.
3662For these reasons, it is fairly debatable that the plan
3672amendment is consistent with FLUE Policy 2.2.1.22.2, Rule 9J-
36815.006(3), and Section 163.3177(6)(a), Florida Statutes.
3687Likewise, the P-SP(1) category has a broad range of uses in
3698terms of intensity, and even though the amendment does not
3708contain specific intensity standards for the IL uses, the Plan
3718contains other provisions required by Chapter 9J-5 to ensure
3727compatibility between any future uses on the site and the
3737surrounding properties in terms of intensity. Therefore, it is
3746fairly debatable that the plan amendment is consistent with Rule
37569J-5.006(3)(c)1. and 7. and Section 163.3177(6)(a), Florida
3763Statutes.
376429. Petitioner further argues that the plan amendment is
3773inconsistent with FLUE Policy 2.2.1.22.2.4(b)(i), which requires
3780that "[a]n applicant shall be required to declare a specific use
3791or uses for a specific piece of property for which the applicant
3803is proposing to amend the existing future land use category to
3814P/SP(1)." Petitioner argues that while FBE has identified one
3823specific use for the P/SP(1) category -- a biomass plant -- it
3835has not declared the specific use or uses which FBE is proposing
3847under the IL category.
385130. Because the light industrial uses allowed under the IL
3861category remain the same as before the amendment, and were
3871previously evaluated when the Plan was originally adopted in
38801989, it is fairly debatable that the amendment is consistent
3890with FLUE Policy 2.2.1.22.2.4(b)(i). The generalized reference
3897to IL uses is adequate since it merely recognizes uses already
3908approved and in effect.
391231. In its Proposed Recommended Order, Petitioner also
3920contends that the plan amendment is inconsistent with the
3929financial feasibility requirements of Section 163.3177(2),
3935Florida Statutes, and Rule 9J-5.019(3) because the County's
3943five-year Capital Improvements Program contains no programmed
3950improvements for U.S. Highway 41. The rule requires that there
3960be a transportation analysis to support a FLUE amendment.
3969However, this issue was not raised in the parties' Stipulation
3979and need not be addressed. See Heartland Environmental Council,
3988Inc. v. Dept. of Comm. Affrs., et al. , Case No. 94-2098GM, 1996
4000Fla. ENV LEXIS 163 at *63 (DOAH Oct. 15, 1996, DCA Nov. 25,
40131996)("[a party] is bound by the allegations in its Petition for
4025Hearing . . . as further limited by the Prehearing
4035Stipulation"). Even if it was a viable issue, the evidence
4046shows that during the review and adoption process, the County
4056relied upon a Florida Department of Transportation traffic
4064analysis link sheet for February 2009 and information supplied
4073by the applicant, which show that the current levels of service
4084(LOS) on U.S. Highway 41 are A and B, that the projected number
4097of peak hour trips will actually result in an overall net
4108decrease in trips when compared to the existing Plan category,
4118and that no capital improvements are needed. See Joint Exhibit
41282 at pp. 14-15; Joint Exhibit 4. An assertion by Petitioner
4139that the LOS on U.S. Highway 41 may deteriorate if a biomass
4151plant is not built and the IL uses are developed to their
4163maximum potential is speculative at best and not supported by
4173the evidence.
417532. Petitioner next contends that the amendment is
4183inconsistent with the requirements of Section 163.3177(6)(a),
4190Florida Statutes, and Rules 9J-5.005(2)(a) and 9J-5.006(2)(b)
4197because it was not based on the best available data regarding
4208the suitability of the site for the biomass facility. The
4218statute requires that the FLUE be based on "surveys, studies and
4229data regarding the area, including . . . the character of
4240undeveloped land." Rule 9J-5.005(2)(a) requires that the
4247amendment be based on relevant and appropriate data and
4256analysis, while Rule 9J-5.006(2)(b)3. requires that the
4263amendment be based on an analysis of the character of the land
4275in order to determine its suitability for use, including the
4285topography of the site.
428933. In support of this argument, Petitioner points out
4298that when the County planner reviewed the amendment, he assumed
4308that less property was within the CHHA than was depicted on the
4320FLUM, that a majority of the property was at or above 10 feet in
4334elevation, and that it would not flood in a Category I storm
4346event. The planner reached this conclusion based on a review of
4357large-scale United States Geological Survey (USGS) topographic
4364maps and Light Detecting And Ranging (LIDAR) maps. However, an
4374undated topographic survey (prepared for an earlier prospective
4382purchaser of the Patron property and given by Patron to FBE when
4394it signed a contract to purchase the property) and a technical
4405memorandum prepared by FBE's consultant, Golder Associates,
4412Inc., on March 31, 2009, reflected that much of the property
4423lies within the CHHA at an elevation of five feet or less, or
4436below the 5.8-foot storm surge elevation for a Category I storm
4447event. This information was in the personal files of FBE's
4457president and its out-of-town consultant and was not given to
4467the County prior to the adoption of the amendment. Petitioner
4477argues that this information is the best available data, and
4487that if the County had been given these documents during its
4498review process, it would have determined that the Patron
4507property was not suitable for industrial uses.
451434. The County was not given the survey and memorandum
4524prepared by the FBE consultant because that information was
4533prepared only for use at the site plan review stage. This is
4545not unusual since the County does not require signed and sealed
4556surveys and engineering reports during the amendment process.
4564While the data were in existence prior to the adoption of the
4576map change in August 2009, they were not disclosed until a few
4588days before final hearing (through discovery) and consequently
4596were not "available for public inspection" prior to the
4605amendment's adoption. After analyzing the new data (over
4613objection of opposing counsel) for the first time at hearing,
4623the County planner indicated that if he had known that the
4634elevation was lower than that depicted on the USGS maps, he
4645would have "given [the application] closer consideration." Even
4653so, he emphasized that his recommendation would still be the
4663same because any development on the site can be protected during
4674the development process by berms, suspension of units
4682aboveground, and other development standards. Assuming arguendo
4689that the data were "available for public inspection" and should
4699have been considered for that purpose, given the rigorous
4708standards that apply during the site approval process, it is
4718still fairly debatable that the amendment is supported by
4727adequate data and analysis as to the suitability of the site and
4739that the County reacted to it in an appropriate manner.
474935. Similarly, Petitioner points out that the technical
4757memorandum prepared by FBE's consultant on March 31, 2009,
4766revealed that the soils on the site are not suitable for a
4778heavily loaded structure such as a biomass plant. Therefore, it
4788argues that the amendment was not based on professionally
4797acceptable data and analysis with respect to the suitability of
4807the property to support a biomass plant, as required by
4817Section 163.3177(6)(a), Florida Statutes, and Rules 9J-
48245.005(2)(a) and 9J-5.006(2)(b)2. The latter rule requires a
4832land use analysis for soils in order to determine the
4842suitability of proposed uses on the site.
484936. In addressing this issue in the staff report, the
4859planner relied upon the 1983 Soil Survey of Manatee County and
4870determined that the property had three types of soil: Bradenton
4880Fine Sand; Chobee Loamy Fine Sand; and Wabasso Fine Sand. See
4891Joint Exhibit 2 at p. 17. He further determined that these
4902three soils are "poorly drained, level to nearly level, sandy to
4913loamy, and underlain by sandy marine sediment and limestone."
4922Id. However, because several heavy industries are already
4930operating adjacent and within the immediate surrounding area
4938with the same type of soil limitations, he concluded that the
4949soil limitations could be "overcome by the proper design of
4959drainage facilities and engineering design of buildings." Id.
4967It is fairly debatable that the data and analysis are adequate
4978to support the amendment in this respect, and that the County
4989reacted to that data in an appropriate manner.
499737. Petitioner further argues the amendment violates
5004Rule 9J-5.005(2)(a) because it is not based on a compatibility
5014analysis of the industrial uses with the residential uses in the
5025surrounding area. Like the preceding two objections, this one
5034is framed in terms of a lack of the best available data to
5047support the amendment. In its Proposed Recommended Order,
5055Petitioner also cites as being relevant to this objection FLUE
5065Policies 2.1.1.5 and 2.2.1.22.4.(b)(i), which require that a
5073change in land use to P/SP(1) only be made "in appropriate areas
5085when compatible with surrounding development," and that an
5093applicant "provide information and analysis on the compatibility
5101of the proposed use or uses . . . with surrounding development."
5113Petitioner points out that there are six single-family homes,
5122characterized by one expert as an "artifact" from an earlier
5132era, that extend out one-half mile along Chapman Road to the
5143east/southeast of Patron's property, and that the County failed
5152to consider the compatibility of industrial uses with those
5161homes. It also argues that the County's analysis was based on
5172the construction of a sixty-megawatt facility, as proposed by
5181FBE, and did not consider a larger, more intense facility.
519138. In making its compatibility analysis for the
5199surrounding area, the County considered all residences on
5207Chapman Road extending out eastward a quarter to a half mile,
5218which included the six houses in question. With the exception
5228of the six houses, the data relied upon by the County reflected
5240that the entire surrounding development is either light or heavy
5250industrial uses, which is consistent with the County's focus to
5260encourage industrial development in the Port Manatee area. The
5269six houses are in a strip of land designated as ROR, which
5281allows a mix of retail, office, and residential uses. Some of
5292the existing uses that are near the homes, and within the ROR
5304category, are considered "intensive." Given this type of
5312development, it is highly unlikely that more homes will be
5322constructed in the ROR area. If and when a biomass plant is
5334constructed, existing development standards will be used to
5342ensure compatibility with the ROR uses. Petitioner did not
5351refute this evidence. When considering the area and uses as a
5362whole, it is fairly debatable that there are adequate data and
5373analysis to support a determination that the new land use will
5384be compatible with the residential uses in the surrounding area.
539439. All other issues raised by Petitioner and not
5403addressed herein have been considered and found to be without
5413merit.
5414CONCLUSIONS OF LAW
541740. The Division of Administrative Hearings has
5424jurisdiction over the subject matter and the parties hereto
5433pursuant to Sections 120.569, 120.57(1), and 163.3184(9),
5440Florida Statutes.
544241. In order to have standing to challenge a plan
5452amendment, a challenger must be an affected person as defined in
5463Section 163.3184(1)(a), Florida Statutes. The facts establish
5470that Petitioner and Intervenors own property and/or operate a
5479business within the County and submitted oral or written
5488comments to the County during the adoption process. Therefore,
5497they are affected persons and have standing to participate in
5507this matter.
550942. In this case, the Department rendered a notice of
5519intent to find a plan amendment in compliance. Therefore, the
5529challenged plan provision "shall be determined to be in
5538compliance if the local government's determination of compliance
5546is fairly debatable." § 163.3184(9)(a), Fla. Stat. As such,
5555Petitioner bears the burden of proving beyond fair debate that
5565the challenged plan amendment is not in compliance. This means
5575that "if reasonable persons could differ as to its propriety,"
5585the plan amendment must be upheld. Martin County v. Yusem , 690
5596So. 2d 1288, 1295 (Fla. 1997). Stated differently, where there
5606is "evidence in support of both sides of a comprehensive plan
5617amendment, it is difficult to determine that the County's
5626decision was anything but 'fairly debatable.'" Martin County v.
5635Section 28 Partnership, Ltd. , 772 So. 2d 616, 621 (Fla. 4th DCA
56472000).
564843. For the reasons given in the Findings of Fact,
5658Petitioner has failed to establish beyond fair debate that the
5668amendment is not in compliance. Therefore, it is concluded that
5678the plan amendment adopted by Ordinance No. 09-31 is in
5688compliance.
568944. Finally, during the hearing, Petitioner offered into
5697evidence Exhibits 22b, d, f, i, and j, and 26-29, which were
5709produced by FBE's president at his deposition taken on April 8,
57202010, or three working days before the hearing. 3 A ruling on the
5733admissibility of those exhibits was reserved. They were not
5742given to the County prior to the adoption of the amendment and
5754therefore were not available for inspection by the public. Of
5764the nine exhibits, Petitioner has placed the greatest emphasis
5773on Exhibit 26, a technical memorandum prepared by its consultant
5783on March 31, 2009, regarding, among other things, elevation of
5793the site and soil conditions on the property; and a topographic
5804survey marked as Petitioner's Exhibit 28, which was represented
5813by counsel to be excerpts taken from FBE Exhibit 13, an undated
5825survey given by Patron to FBE after it signed a contract to
5837purchase the land. FBE offered the complete survey as FBE
5847Exhibit 13, but only for the limited purpose of describing the
5858circumstances under which it received the document and not for
5868its accuracy or content. Petitioner contends these exhibits
5876constitute the best available data regarding the character of
5885the land and its suitability for use as a biomass plant. Within
5897the context of this argument, their admissibility and relevance
5906depend on whether they were in existence at the time the
5917amendment was adopted and were available for public inspection
5926prior to the adoption of the amendment. See § 163.3177(8), Fla.
5937Stat.; Fla. Admin. Code R. 9J-5.005(1)(c). While all of the
5947documents appear to pre-date, at least by one day, the adoption
5958hearing on August 11, 2009, they were not available for public
5969inspection. Therefore, they cannot be relied upon for the
5978purposes advanced by Petitioner. The objection to Petitioner's
5986Exhibits 22b, d, f, i, and j, and 26-29 is sustained.
599745. Petitioner contends, however, that under the rationale
6005in Zemel, et al. v. Lee Cty., et al. , DOAH Case No. 90-7793GM,
60181993 Fla. ENV LEXIS 77 (DOAH Dec. 16, 1992, DCA June 22, 1993),
6031such data may be considered. Unlike the circumstances here,
6040however, the Zemel case focused on whether data not in existence
6051until after the adoption hearing could be relied upon as the
6062best available existing data to challenge a plan amendment.
6071Determining that such data should not be received in evidence
6081for that purpose, the hearing officer also concluded in dictum
6091that the public participation process could be "impair[ed]" by
6100allowing a local government or affected person to refer at
6110hearing to existing data not in fact used while adopting the
6121amendment. Id. at *89. In other dictum , he noted that allowing
6132a local government or affected person to wait until the final
6143hearing to identify the existing data that forms the basis for
6154adopting or challenging the amendment would not serve "the
6163principles of public participation." Id. Rather than
6170supporting Petitioner's position, the dictum suggests that even
6178if data exist at the time the amendment is adopted, they must
6190have been provided to the local government in order to satisfy
6201the public participation requirement. See also O'Connell, et
6209al. v. Dep't of Cmty. Affairs, et al. , DOAH Case No.01-4826GM,
62202002 Fla. ENV LEXIS 263 at *16 (DOAH Oct. 16, 1992), adopted ,
62322003 Fla. ENV LEXIS 16 (DCA Jan. 3, 2003); Hussey, et al. v.
6245Collier Cty., et al. , DOAH Case Nos. 02-3795 and 02-3796, 2003
6256Fla. Div. Hear. LEXIS 304, n.21 at *66-67 (DOAH April 29, 2003,
6268DCA July 22, 2003).
627246. Because of the de novo nature of the proceeding, there
6283may be circumstances where documents post-dating the adoption
6291hearing or in existence but not used by the local government at
6303the adoption hearing would be admissible for purposes other than
6313satisfying Rule 9J-5.005(2)(a). See , e.g. , Toppino's, Inc. v.
6321Dep't of Cmty. Affairs , DOAH Case No. 02-0418GM, 2004 Fla. ENV
6332LEXIS 242, n.2 at *4 (DOAH April 29, 2004, DCA Aug. 9, 2004);
6345Osborne, et al. v. Town of Beverly Beach, et al. , DOAH Case No.
635803-4785GM, 2005 Fla. ENV LEXIS 190 (DOAH Aug. 29, 2005),
6368adopted , 2005 Fla. ENV LEXIS 189 (DCA Nov. 4, 2005). But here
6380the disputed documents were proffered only for the purpose of
6390being used as data to support the requirement that plan
6400amendments must be based on the best available data, and the de
6412novo principle does not apply. To the extent Petitioner
6421contends that some of the exhibits are relevant to issues
6431regarding the operation of the biomass plant, those issues are
6441either within the purview of DEP's regulatory jurisdiction, will
6450be addressed during the site approval process, or are subject to
6461other state statutes and codes.
6466RECOMMENDATION
6467Based on the foregoing Findings of Fact and Conclusions of
6477Law, it is
6480RECOMMENDED that the Department of Community Affairs enter
6488a final order denying USFG's Petition and determining that the
6498plan amendment adopted by Ordinance No. 09-31 is in compliance.
6508DONE AND ENTERED this 28th day of July, 2010, in
6518Tallahassee, Leon County, Florida.
6522S
6523D. R. ALEXANDER
6526Administrative Law Judge
6529Division of Administrative Hearings
6533The DeSoto Building
65361230 Apalachee Parkway
6539Tallahassee, Florida 32399-3060
6542(850) 488-9675
6544Fax Filing (850) 921-6847
6548www.doah.state.fl.us
6549Filed with the Clerk of the
6555Division of Administrative Hearings
6559this 28th day of July, 2010.
6565ENDNOTES
65661/ All references are to the current version of the Florida
6577Administrative Code.
65792/ All references are to the 2009 version of the Florida
6590Statutes.
65913/ The exhibits are performance specifications for an early
6600iteration of the biomass plant (Exhibit 22b); an early depiction
6610of the site layout (Exhibit 22d); the consultant's proposal to
6620conduct an environmental assessment dated April 14, 2009 (Exhibit
662922f); performance specifications for another iteration of the
6637biomass plant dated August 7, 2009 (Exhibit 22i); the
6646consultant's proposal for permitting and engineering support
6653dated August 10, 2009 (Exhibit 22j); the technical memorandum
6662dated March 31, 2009 (Exhibit 26); a preliminary geotechnical
6671investigation dated June 21, 2006 (Exhibit 27); excerpts from an
6681undated survey (Exhibit 28); and the consultant's "project setup
6690form" to conduct an environmental and noise assessment dated
6699April 16, 2009 (Exhibit 29).
6704COPIES FURNISHED:
6706Thomas G. Pelham, Secretary
6710Department of Community Affairs
67142555 Shumard Oak Boulevard
6718Tallahassee, Florida 32399-2100
6721Shaw P. Stiller, General Counsel
6726Department of Community Affairs
67302555 Shumard Oak Boulevard
6734Tallahassee, Florida 32399-2100
6737Robert K. Lincoln, Esquire
6741Icard, Merrill, Cullis, Timm,
6745Furen & Ginsburg, P.A.
67492033 Main Street, Suite 300
6754Sarasota, Florida 34237-6093
6757Lynette Noor, Esquire
6760Department of Community Affairs
67642555 Shumard Oak Boulevard, Suite 325
6770Tallahassee, Florida 32399-2100
6773Robert A. Minix, Esquire
6777Deputy County Attorney
6780Post Office Box 1000
6784Bradenton, Florida 34206-1000
6787James D. Dye, Esquire
6791Dye, Deitrich, Petruff & St. Paul, P.L.
67981111 3rd Avenue, West, Suite 600
6804Sarasota, Florida 34237-7834
6807Robert H. Willis, Jr., Esquire
6812Skelton, Willis, Bennett & Wallace, LLP
6818Post Office Box 30
6822St. Petersburg, Florida 33731-0030
6826NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
6832All parties have the right to submit written exceptions within 15
6843days of the date of this Recommended Order. Any exceptions to
6854this Recommended Order should be filed with the agency that will
6865render a final order in this matter.
- Date
- Proceedings
- PDF:
- Date: 08/11/2010
- Proceedings: Transmittal letter from Claudia Llado forwarding Deposition of Gordon Hester to the agency.
- PDF:
- Date: 07/28/2010
- Proceedings: Recommended Order (hearing held April 14-15, and May 3-4, 2010). CASE CLOSED.
- PDF:
- Date: 07/28/2010
- Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
- PDF:
- Date: 07/14/2010
- Proceedings: Respondents' and Intervenor, Florida Biomass Energy, LLC's Joint Proposed Recommended Order filed.
- PDF:
- Date: 07/09/2010
- Proceedings: Supplemental Motion for Extension of Time to File Proposed recommended Orders filed.
- PDF:
- Date: 07/09/2010
- Proceedings: Motion for Extension of Time to File Proposed Recommended Orders filed.
- PDF:
- Date: 06/21/2010
- Proceedings: Notice of Unavailability of Counsel for Defendant, Florida Biomass Energy, LLC filed.
- PDF:
- Date: 06/17/2010
- Proceedings: Order (granting joint motion for extension of time to file proposed recommended orders).
- PDF:
- Date: 06/17/2010
- Proceedings: Joint Motion for Extension of Time to File Proposed Recommended Orders filed.
- Date: 05/25/2010
- Proceedings: Transcript of Proceedings filed.
- Date: 05/03/2010
- Proceedings: CASE STATUS: Hearing Held.
- PDF:
- Date: 04/20/2010
- Proceedings: Amended Notice of Continued Hearing (hearing set for May 3 through 5, 2010; 9:00 a.m.; Bradenton, FL; amended as to location, time, and date).
- PDF:
- Date: 04/20/2010
- Proceedings: Notice of Continued Hearing (hearing set for May 3 and 4, 2010; 9:30 a.m.; Bradenton, FL; amended as to continuation of hearing).
- Date: 04/14/2010
- Proceedings: Transcript of Proceedings (volume I-III) filed.
- Date: 04/14/2010
- Proceedings: CASE STATUS: Hearing Partially Held; continued to May 3, 2010; 9:00 a.m.; Bradenton, FL.
- PDF:
- Date: 04/14/2010
- Proceedings: Petitioner U.S. Funding's Response to Manatee County's Motion in Limine filed.
- PDF:
- Date: 04/13/2010
- Proceedings: Notice of Filing Original Deposition Transcript of Ethel Hammer filed.
- PDF:
- Date: 04/13/2010
- Proceedings: Notice of Filing Original Deposition Transcript of Leon Kotecki filed.
- PDF:
- Date: 04/13/2010
- Proceedings: Notice of Filing Original Deposition Transcript of Chris Wiglesworth filed.
- PDF:
- Date: 04/13/2010
- Proceedings: Notice of Filing Original Deposition Transcript of Lisa Barrett filed.
- PDF:
- Date: 04/13/2010
- Proceedings: Notice of Filing Original Deposition Transcript of Ethel Hammer filed.
- PDF:
- Date: 04/13/2010
- Proceedings: Notice of Filing Original Deposition Transcript of Richard Jensen filed.
- PDF:
- Date: 04/12/2010
- Proceedings: Notice of Filing Original Deposition Transcript of Gordon Hester .
- PDF:
- Date: 04/09/2010
- Proceedings: U.S. Funding Group, LLC's Supplemental Pre-hearing Statement filed.
- PDF:
- Date: 04/06/2010
- Proceedings: Notice of Service of Petitioner, US Funding Group, LLC's Responses to Intervenor Florida Biomass Energy, LLC's First Interrogatories filed.
- PDF:
- Date: 04/06/2010
- Proceedings: Notice of Taking Continued Deposition Duces Tecum (R. Jensen) filed.
- PDF:
- Date: 04/01/2010
- Proceedings: Notice of Taking Telephonic Deposition (of C. Wiglesworth) filed.
- PDF:
- Date: 03/24/2010
- Proceedings: Amended Notice of Hearing (hearing set for April 14 through 16, 2010; 9:30 a.m.; Bradenton, FL; amended as to room location).
- PDF:
- Date: 03/12/2010
- Proceedings: Notice of Substitution of Counsel for Department of Community Affairs (filed by D. Jordan).
- PDF:
- Date: 03/05/2010
- Proceedings: Notice of Service of Petitioner, US Funding Group, LLC's Responses to Respondent Manatee County's First Interrogatories filed.
- PDF:
- Date: 03/05/2010
- Proceedings: Petitioner, US Funding Group, LLC's Responses to Respondent Manatee County's Request for Production filed.
- PDF:
- Date: 03/05/2010
- Proceedings: Petitioner, US Funding Group, LLC's Response to Respondent Manatee County's Request for Admissions filed.
- PDF:
- Date: 03/04/2010
- Proceedings: Intervener Florida Biomass Energy, LLC Notice of Service of First Set of Interrogatories to Petitioner U.S. Funding Group, LLC filed.
- PDF:
- Date: 02/09/2010
- Proceedings: Notice of Taking Deposition (of the person with the most knowledge as to the items set forth below of U.S. Funding Group, LLC) filed.
- PDF:
- Date: 02/04/2010
- Proceedings: Notice of Substitution of Counsel for Department of Community Affairs (by R. Shine) filed.
- PDF:
- Date: 02/03/2010
- Proceedings: Respondent Manatee County's Request for Admissions to Petitioner U.S. Funding Group, LLC filed.
- PDF:
- Date: 02/03/2010
- Proceedings: Respondent Manatee County's Notice of Serving Interrogatories to Petitioner U.S. Funding Group, LLC filed.
- PDF:
- Date: 02/03/2010
- Proceedings: Respondent Manatee County's Notice of Serving Expert Interrogatories to Petitioner U.S. Funding Group, LLC filed.
- PDF:
- Date: 12/23/2009
- Proceedings: Notice of Hearing (hearing set for April 14 through 16, 2010; 9:30 a.m.; Bradenton, FL).
- PDF:
- Date: 12/08/2009
- Proceedings: Order (Florida Biomass Energy, LLC is granted Intervenor status).
- PDF:
- Date: 11/12/2009
- Proceedings: Order Placing Case in Abeyance (parties to advise status by December 31, 2009).
Case Information
- Judge:
- D. R. ALEXANDER
- Date Filed:
- 11/02/2009
- Date Assignment:
- 11/03/2009
- Last Docket Entry:
- 12/08/2010
- Location:
- Bradenton, Florida
- District:
- Middle
- Agency:
- Other
- Suffix:
- GM
Counsels
-
James D. Dye, Esquire
Address of Record -
David L. Jordan, Assistant General Counsel
Address of Record -
Robert K. Lincoln, Esquire
Address of Record -
James A Minix, Esquire
Address of Record -
Lynette Norr, Esquire
Address of Record -
Robert H Willis, Esquire
Address of Record -
David L. Jordan, Esquire
Address of Record