09-006014GM U.S. Funding Group, Llc vs. Manatee County And Department Of Community Affairs Status: Closed Recommended Order on Wednesday, July 28, 2010.

Summary: Map change to allow a biomass plant was in compliance. Data not available for public inspection cannot be used as data to support an amendment.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

U.S. FUNDING GROUP, LLC, )

)

Petitioner, )

)

vs. ) Case No. 09-6014GM

)

MANATEE COUNTY AND DEPARTMENT )

OF COMMUNITY AFFAIRS, )

)

Respondents, )

)

and )

)

FLORIDA BIOMASS ENERGY, LLC, )

AND PATRON HOLDINGS, LLC, )

)

Intervenors. )

_______________________________ )

RECOMMENDED ORDER

Pursuant to notice, this matter was heard before the

Division of Administrative Hearings by its assigned

Administrative Law Judge, D. R. Alexander, on April 14-16 and

May 3-4, 2010, in Bradenton, Florida.

APPEARANCES

For Petitioner: Robert K. Lincoln, Esquire

Tracy Dillard-Spahn, Esquire

Icard, Merrill, Cullis, Timm,

Furen & Ginsburg, P.A.

2033 Main Street, Suite 600

Sarasota, Florida 34237-6093

For Respondent: Lynette Norr, Esquire

(Department) Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399-2100

For Respondent: James A. Minix, Esquire

(County) Sarah A. Schenk, Esquire

County Attorney's Office

Post Office Box 1000

Bradenton, Florida 32406-1000

For Intervenor: James D. Dye, Esquire

(FBE) Patricia A. Petruff, Esquire

Warren A. Pies, Esquire

Dye, Deitrich, Petruff & St. Paul, P.L.

1111 Third Avenue West, Suite 300

Bradenton, Florida 34205-7834

For Intervenor: Robert H. Willis, Jr., Esquire

(Patron) Skelton, Willis, Bennett & Wallace, LLP

Post Office Box 30

St. Petersburg, Florida 33731-0030

(appeared on April 14, 2010, only)

STATEMENT OF THE ISSUE

The issue is whether a change on the Future Land Use Map

(FLUM) of the Comprehensive Plan (Plan) adopted by Respondent,

Manatee County (County), by Ordinance No. 09-31 on August 11,

2009, is in compliance.

PRELIMINARY STATEMENT

By Ordinance No. 09-31, the County changed the land use

designation on a parcel of property owned by Intervenor, Patron

Holdings, LLC (Patron), from Industrial Light (IL) to Public/

Semi-Public-1 (P/SP(1)). The new land use designation allows,

among other things, the use of the property as an alternative

fuel electrical generating facility. The property is under

contract to be sold to Intervenor, Florida Biomass Energy, LLC

(FBE), who intends to construct and operate a biomass plant on

the property. On September 29, 2009, Respondent, Department of

Community Affairs (Department), published its Notice of Intent

to Find Manatee County Comprehensive Plan Amendment in

Compliance (Notice of Intent). On October 20, 2009, Petitioner,

U.S. Funding Group, LLC (Petitioner or USFG), who owns property

in the immediate vicinity of the subject property, filed with

the Department its Petition for Administrative Hearing

(Petition) alleging that the map change was not in compliance

for numerous reasons. The matter was referred by the Department

to the Division of Administrative Hearings on November 2, 2009,

with a request that the matter be assigned to an administrative

law judge and that a formal hearing be conducted. By Order

dated December 8, 2009, FBE was authorized to intervene, and

Patron was authorized to intervene by Order dated January 22,

2010. At the request of the parties, the case was initially

placed in abeyance pending settlement negotiations.

By Notice of Hearing dated December 23, 2009, a final

hearing was scheduled on April 14-16, 2010, in Bradenton,

Florida. On April 7, 2010, the County filed a Motion in Limine

(Motion) seeking to exclude all evidence regarding hazardous

waste and air quality issues that were being considered by the

Department of Environmental Protection (DEP) in a separate

proceeding in which FBE is seeking an air permit for the

facility. See DOAH Case No. 10-1680. (Official recognition has

been taken of the fact that Petitioner filed a Stipulated Notice

of Voluntary Dismissal in that proceeding on June 14, 2010, and

jurisdiction in the case was relinquished to DEP the same day so

that an air permit has been issued by DEP.) The Motion was

denied at the outset of the hearing, with the understanding that

the undersigned would determine the relevancy of the evidence,

when offered, or at the time this Recommended Order was

prepared. A Joint Pre-Hearing Stipulation (Stipulation) was

filed by the parties on April 9, 2010, and a Supplemental Pre-

Hearing Statement was filed by Petitioner the same day.

At the final hearing, Petitioner presented the testimony of

Dr. David W. Depew, a certified planner and accepted as an

expert; and Scott H. Osbourn, a professional engineer with

Golder Associates, Inc., and accepted as an expert. Also, it

offered Petitioner's Exhibits 1-4, 4a, 5, 8-11, 13a-d, 14a-d,

15a-d, 16-21, 21a, 22d, 22f, 22i, 22j, and 23-29. An objection

to Exhibits 13a-d, 14a-d, and 15a-d was sustained, while a

ruling was reserved on Exhibits 22b, 22d, 22f, 22i, 22j, and 26-

29. The objection to those exhibits is sustained. Petitioners

other exhibits have been received. The Department did not

present any witnesses, but adopted the evidence of the County

and FBE. The County presented the testimony of Gordon Hester,

managing member of USFG; Leon Kotecki, Principal County Planner;

and Chris A. Wigglesworth, a Department Senior Planner and

accepted as an expert. Also, it offered County Exhibits 6-13,

17-19, 20, 23, 24, 26, and 27, which were received in evidence.

FBE presented the testimony of Ethel D. Hammer, a land use

planner and accepted as an expert; and Richard F. Jensen, Jr.,

its president. Also, it offered FBE Exhibits 1-3, 5, 10-13, and

17-19, which were received in evidence. Except for attending

the first day of the hearing, Patron did not otherwise

participate in this matter. Finally, the parties offered Joint

Exhibits 1 through 16, which were received in evidence.

The first four volumes of the Transcript of the hearing

were filed on June 25, 2010, while the fifth volume was filed on

July 12, 2010. Proposed Findings of Fact and Conclusions of Law

were filed by Petitioner and jointly by the County, Department,

and FBE on July 14, 2010, and they have been considered in the

preparation of this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of

fact are determined:

A. The Parties

1. The Department is the state land planning agency

charged with the responsibility for reviewing plan amendments of

local governments, including the County.

2. The County is a local government that administers its

Plan, which it amends from time to time. The County adopted the

Ordinance which approved the change in the FLUM being challenged

here.

3. Petitioner is a Florida limited liability company with

offices located at 4379 Ocean Boulevard, Sarasota, Florida. It

owns property in the County. Petitioner appeared at the

transmittal hearing for the amendment and submitted comments on

the record in opposition to the amendment.

4. FBE is a Florida limited liability company and has

contracted to purchase the subject property from Patron. It

operates a renewable energy development company in the County.

It submitted comments to the County during the adoption process.

5. Patron is a Florida limited liability company that owns

the subject property. It submitted comments in support of the

plan amendment during the adoption process.

B. History of the Amendment

6. On March 27, 2009, FBE (as agent for Patron) filed a

Land Development Application (application) with the County

Planning Department requesting approval of a FLUM change for the

property from IL to P/SP(1). See Joint Exhibit 1. The existing

IL land use authorizes office, light industry, research/

corporate parks, warehouse distribution, intensive commercial

uses, neighborhood retail uses, hotel/motel, selected single-

family, and residential uses. See Joint Exhibit 12. The Plan

describes the general range of potential uses under the new

category as recreational uses, sanitary landfills, permanent

water and wastewater treatment/storage/disposal facilities, and

other public facilities including, but not limited to, public

airports, major maintenance facilities, solid waste transfer

stations, and major utility transmission corridors. Id.

Residential uses are not allowed. One intent of the P/SP(1)

category is to recognize facilities associated with private

utilities, such as the biomass plant proposed by FBE. Id.

7. The application indicated that FBE intends to operate a

sixty-megawatt biomass integrated power plant on the property

and to continue to retain all uses allowed by the IL category.

(In contrast to a power plant that uses coal or oil to generate

electricity, a biomass plant uses renewable energy sources such

vegetative materials to create electric energy.) The power

generated at the facility will be sold to Progress Energy

Florida, an investor-owned public utility. The application was

accepted, numbered PA-09-08, and assigned Ordinance No. 09-31.

8. Sometime in early April 2009, a staff report was

prepared by the County's Principal Planner, Leon Kotecki, which

included land use characteristics and development trends, plan

amendment justification, and positive and negative aspects of

the application and mitigating factors. See Joint Exhibits 5

and 6.

9. The staff report also included what is described as a

Plan Amendment Detailed Review and Land Planning Analysis that

discussed services and natural features, urban development

considerations, and consistency with the Plan, the State

Comprehensive Plan (State Plan), Florida Administrative Code

Rule Chapter 9J-5, 1 and relevant portions of the Florida Statutes

(2009). 2 The report recommended that the application be

approved. In making this favorable recommendation, the planner

compiled and reviewed data on land compatibility, traffic

impacts, and water and sanitary uses. He also took into account

the topography of the site, how the Coastal High Hazard Area

(CHHA) affected the site, its proximity to Port Manatee, and the

surrounding uses.

10. On April 4, 2009, the County published an

advertisement of a public hearing on the application in the

Bradenton Herald and the Sarasota Herald Tribune . Also, letters

were sent to all property owners within 500 feet of the proposed

amendment. Petitioner received personal notice of the amendment

by letter dated May 20, 2009.

11. On April 16, 2009, the Planning Commission conducted a

hearing on the plan amendment and by a 4-1 vote recommended

transmitting the amendment to the Board of County Commissioners.

12. On April 21, 2009, the Board of County Commissioners

conducted a public hearing and voted 6-0 to transmit the

proposed amendment (as a part of a larger amendment package) to

the Department for its review.

13. On June 29, 2009, the Department issued its

Objections, Recommendations, and Comments (ORC) report for a

series of map amendments, including the biomass project. See

Joint Exhibit 4. In the ORC, the Department lodged an objection

regarding the lack of sufficient planning guidelines as required

by Future Land Use Element (FLUE) Policy 2.2.1.22(4)(b)(i),

specifically noting that the amendment did not restrict the

property to a particular use. Id. at p. 3. That policy

requires that an amendment for a proposed P/SP(1) category

include a declaration of the specific use for which the P/SP(1)

category is sought. The ORC also indicated that the amendment

was not consistent with various goals, policies, and objectives

in the State Plan for the reasons cited in the Objections

portion of the ORC. Id. at pp. 3-4. The ORC recommended that

the amendment include site-specific policies establishing

meaningful and predictable guidelines and standards to guide

development on the site. Id. at p. 3.

14. After receipt of the ORC, the County revised the plan

amendment by including a text amendment containing ten

conditions (stipulations) that would apply if the property was

developed as an electric generating facility using biomass fuels

and/or solar energy. These conditions were included in the

adopting ordinance as a new Section D.5.4 in the General

Introduction Chapter and are a part of the Plan. See Joint

Exhibit 10 at pp. 4-5. The new section provides that the

property is limited to an "electricity generating facility using

only biomass fuels and solar energy retaining the light

industrial uses as provided for in the former IL Industrial

Future Land Use Category applicable to the site." Id. at p. 4.

The section further provides that the ten conditions are

"minimal requirements" and that further conditions may be added

during the development process, as necessary. Id. at p. 5.

Thus, future stipulations at a later date can exceed the minimum

requirements in the County's Land Development Code.

15. On August 11, 2009, the County conducted a public

hearing and adopted Ordinance No. 09-31, with the changes

presented by its staff.

16. On September 29, 2009, the Department published its

Notice of Intent to find the amendment in compliance in the

Bradenton Herald .

17. On October 20, 2009, Petitioner filed its Petition

challenging the map change and text amendment. The issues have

been more narrowly defined in its Proposed Recommended Order and

can be summarized as follows: the amendment is internally

inconsistent with FLUE Policy 2.2.1.22.2 and is inconsistent

with Rule 9J-5.006(3)(c) and Section 163.3177(6)(a), Florida

Statutes, because it impermissibly allows IL uses in the P/SP(1)

land use category; the amendment is inconsistent with Rule 9J-

5.006(3)(c)1. and 7. and Section 163.3177(6)(a), Florida

Statutes, because it impermissibly expands the uses in the

P/SP(1) category by including IL uses and does not contain the

required intensity standards; the amendment is internally

inconsistent with FLUE Policy 2.2.1.22.4.(b)(i) because it fails

to declare a specific use for the IL uses; the amendment is

inconsistent with the financial feasibility requirements of

Section 163.3177(2), Florida Statutes, and Rule 9J-5.019(3); the

amendment is inconsistent with the requirements of Rules 9J-

5.006(2)(b) and 9J-5.005(2)(a) and Section 163.3177(6)(a),

Florida Statutes, because it is not based on an analysis of the

best available data regarding the suitability of the site for a

biomass facility; and the amendment is inconsistent with the

requirements of Rule 9J-5.005(2)(a) because it was not based on

an analysis of the best available data for compatibility with

residential uses in the surrounding area.

C. The Property and Surrounding Uses

18. Patron's property consists of around 44.4 acres and is

located at 11551 and 11805 U.S. Highway 41 North in the

northwest part of the County, just south of the Hillsborough

County line. The eastern side of the property adjoins U.S.

Highway 41, a major four-lane highway running north-south, while

property owned by CSX Corporation (CSX), including an active

railroad track, and then a large drainage canal border the site

on its western side. (The railroad track is around one-quarter

mile west of U.S. Highway 41.) West of the canal is

agricultural land and a large parcel owned by Port Manatee

designated as IL but used as conservation lands. To the south

(in IL-designated land) lies an aircraft parts manufacturing

facility owned by Trielectron Industries, which shares a

boundary with Petitioner's property. To the north, the site

adjoins property owned by Florida Power & Light Company, on

which a substation is located. FBE plans to connect its power

plant to the electric grid through this substation.

19. The property is bisected by Armstrong Road, an unpaved

County-maintained road running east-west, which provides access

from U.S. Highway 41 to Patron's property and the land just west

of the CSX property. Approximately one-third of the property

lies north of Armstrong Road, while the remaining two-thirds lie

south of the road. The southern 450 to 500 feet of the site

consists of wetlands, forests, and vegetation, which serve as

both a distance and visual buffer to uses to the south and

southwest. (Because of these wetlands, a biomass plant would

have to be constructed on the middle of the site.) Immediately

west of the CSX property is an unpaved road that turns south to

provide access to row crop fields and then to an 88-acre,

rectangle-shaped parcel owned by Petitioner.

20. Port Manatee, a deepwater seaport connected to the

Gulf of Mexico through Tampa Bay, is less than a mile north of

the site. The area between Port Manatee and Patron's property

contains port-related uses which are mostly industrial uses such

as construction yards and an aggregate plant. To the east of

the port is a closed phosphate processing plant and associated

phosphogypsum stacks, which are the remains after the phosphate

is processed.

21. The existing zoning on the property is Planned

Development Encouragement Zone (PDEZ). The existing uses

allowed under that category include a range of light and heavy

industrial uses and are listed on the General Development Plan

approved by the County on December 4, 2008. See County Exhibits

13 and 24. This information is relevant here because the zoning

classification is consistent with the County's intent to focus

heavy industrial uses within close proximity to Port Manatee.

22. Development trends in the area of Port Manatee and the

Patron property are predominately industrial. All of the

surrounding development is either light or heavy industrial uses

with the exception of six single-family homes located on Chapman

Road, which terminates on the eastern side of U.S. Highway 41

just south of the site and extends eastward. The homes are

located in a strip of land extending east on Chapman Road for a

quarter mile or so and south for around a mile on the eastern

side of U.S. Highway 41 that is classified as Retail/Office/

Residential (ROR). That category allows a range of uses

including retail, wholesale or commercial uses, and public or

semi-public uses. Thus, the residential units have the

potential to eventually transition to nonresidential uses

without a map change. There remain a few open parcels of land

in the area that are available for additional development.

23. Petitioner's property comprises around 88.7 acres.

The southwest corner of Patron's property lies around one-

quarter mile from the northeast corner of Petitioner's property.

Counting the 450-foot green space on the southern end of

Patron's property, the distance between the site of the plant

and Petitioner's main parcel is around 1,900 feet. Petitioner

also owns a narrow strip of land extending northward from the

main parcel to Armstrong Road. This strip adjoins the western

side of the CSX railroad track and provides access to the

property from U.S Highway 41.

24. On November 30, 2004, the County approved a

residential project for Petitioner's property and rezoned the

land from Suburban Agriculture and Suburban Agriculture/Coastal

High Hazard Overlay District to Planned Development Residential/

Coastal High Hazard Overlay District. The project is known as

the Estates at Bishop Harbor. The Preliminary Site Plan for the

property depicted 66 lots for single-family detached residences.

Before any development occurred, however, the original developer

defaulted on the mortgage held by Petitioner, a foreclosure

occurred, title to the property reverted to Petitioner, and no

development ever occurred. The property is still vacant. At

the time of the hearing, Petitioner had an application pending

before the County to change the land use designation on 83.31

acres from Residential-1 (one dwelling unit per acre) to IL.

The outcome of that application is unknown. The remaining 5.39

acres are already designated IL. Based on these circumstances,

it is fair to infer that the long-delayed construction of the

planned residential subdivision is questionable.

25. Stipulation 6 of the approval of the change in land

use on Petitioner's property was a requirement that a Notice to

Buyers be included in the Declaration of Covenants and

Restrictions and in the sales contracts or a separate addendum

to the sales contracts and final site plans that includes

language informing prospective homeowners that there are

neighboring industrial uses and the potential for future

industrial development including possible truck traffic and

noises associated with industrial uses.

D. Petitioner's Objections

26. Petitioner first contends that the plan amendment is

internally inconsistent with FLUE Policy 2.2.1.22.2 and

inconsistent with the requirements of Rule 9J-5.006(3)(c) and

Section 163.3177(6)(a), Florida Statutes, because it permits

light industrial uses in the P/SP(1) land use category.

Petitioner argues that IL uses are not permitted in the P/SP(1)

category. It also argues that by failing to include specific

intensity standards in the amendment for the allowed IL uses,

the amendment is inconsistent with the requirements of Rule 9J-

5.006(3)(c)1. and 7. and Section 163.3177(6)(a), Florida

Statutes. The rule requires that the FLUE contain policies

regulating land use categories included on the FLUM and

establishing standards for intensities of use for each future

land use category. The statute requires that each land use

category be defined in terms of uses allowed and include

standards to be followed in the control and distribution of

building and structure intensities.

27. Policy 2.2.1.22 establishes the P/SP(1) land use

category; Policy 2.2.1.22.1 describes the intent of the

category; Policy 2.2.1.22.2 describes the general range of

potential uses in the category; and Policy 2.2.1.22.3 provides

the range of potential intensity for the category. The general

range of potential uses in the P/SP(1) category include:

Recreational uses, sanitary landfills,

permanent water and wastewater treatment/

storage/disposal facilities and other major

public facilities including but not limited

to, airports owned or operated by a public

entity, major maintenance facilities, solid

waste transfer stations, [and] major utility

transmission corridors. Also, when the

P/SP(1) designation is an easement on

privately-held property, other uses

consistent with the adjacent future land use

category or categories, where consistent

with the purpose of the easement and

consistent with all other goals, objectives,

and policies of this Comprehensive Plan, may

also be considered. (See also Policy

2.1.1.5)

Policy 2.1.1.5 provides further clarification on the allowed

uses in this category by requiring that the County ensure the

availability of sufficient land in the P/SP(1) category "to

allow development of major public or semi-public uses (e.g.,

electrical generation facilities . . .) in appropriate areas

when compatible with surrounding development." Joint Exhibit

12. The Plan permits light industrial uses within the P/SP(1)

category.

28. Notwithstanding the broad range of uses described

above, FLUE Policy 2.2.1.5 provides the County with more

flexibility in determining the appropriate uses for any given

plan category. The policy states that the future land use

category listings of uses are "generalized," they are not "all

inclusive," and they "may be interpreted to include other land

uses which are similar to or consistent with those set forth in

the general range of potential uses." See Joint Exhibit 12. IL

uses are similar in character and intensity to the type of uses

listed in the P-SP(1) category. Because the property was

classified as IL before the amendment, all of the IL uses in

that category have been evaluated and determined by the County

to be appropriate in terms of location, impact, and intensity.

For these reasons, it is fairly debatable that the plan

amendment is consistent with FLUE Policy 2.2.1.22.2, Rule 9J-

5.006(3), and Section 163.3177(6)(a), Florida Statutes.

Likewise, the P-SP(1) category has a broad range of uses in

terms of intensity, and even though the amendment does not

contain specific intensity standards for the IL uses, the Plan

contains other provisions required by Chapter 9J-5 to ensure

compatibility between any future uses on the site and the

surrounding properties in terms of intensity. Therefore, it is

fairly debatable that the plan amendment is consistent with Rule

9J-5.006(3)(c)1. and 7. and Section 163.3177(6)(a), Florida

Statutes.

29. Petitioner further argues that the plan amendment is

inconsistent with FLUE Policy 2.2.1.22.2.4(b)(i), which requires

that "[a]n applicant shall be required to declare a specific use

or uses for a specific piece of property for which the applicant

is proposing to amend the existing future land use category to

P/SP(1)." Petitioner argues that while FBE has identified one

specific use for the P/SP(1) category -- a biomass plant -- it

has not declared the specific use or uses which FBE is proposing

under the IL category.

30. Because the light industrial uses allowed under the IL

category remain the same as before the amendment, and were

previously evaluated when the Plan was originally adopted in

1989, it is fairly debatable that the amendment is consistent

with FLUE Policy 2.2.1.22.2.4(b)(i). The generalized reference

to IL uses is adequate since it merely recognizes uses already

approved and in effect.

31. In its Proposed Recommended Order, Petitioner also

contends that the plan amendment is inconsistent with the

financial feasibility requirements of Section 163.3177(2),

Florida Statutes, and Rule 9J-5.019(3) because the County's

five-year Capital Improvements Program contains no programmed

improvements for U.S. Highway 41. The rule requires that there

be a transportation analysis to support a FLUE amendment.

However, this issue was not raised in the parties' Stipulation

and need not be addressed. See Heartland Environmental Council,

Inc. v. Dept. of Comm. Affrs., et al. , Case No. 94-2098GM, 1996

Fla. ENV LEXIS 163 at *63 (DOAH Oct. 15, 1996, DCA Nov. 25,

1996)("[a party] is bound by the allegations in its Petition for

Hearing . . . as further limited by the Prehearing

Stipulation"). Even if it was a viable issue, the evidence

shows that during the review and adoption process, the County

relied upon a Florida Department of Transportation traffic

analysis link sheet for February 2009 and information supplied

by the applicant, which show that the current levels of service

(LOS) on U.S. Highway 41 are A and B, that the projected number

of peak hour trips will actually result in an overall net

decrease in trips when compared to the existing Plan category,

and that no capital improvements are needed. See Joint Exhibit

2 at pp. 14-15; Joint Exhibit 4. An assertion by Petitioner

that the LOS on U.S. Highway 41 may deteriorate if a biomass

plant is not built and the IL uses are developed to their

maximum potential is speculative at best and not supported by

the evidence.

32. Petitioner next contends that the amendment is

inconsistent with the requirements of Section 163.3177(6)(a),

Florida Statutes, and Rules 9J-5.005(2)(a) and 9J-5.006(2)(b)

because it was not based on the best available data regarding

the suitability of the site for the biomass facility. The

statute requires that the FLUE be based on "surveys, studies and

data regarding the area, including . . . the character of

undeveloped land." Rule 9J-5.005(2)(a) requires that the

amendment be based on relevant and appropriate data and

analysis, while Rule 9J-5.006(2)(b)3. requires that the

amendment be based on an analysis of the character of the land

in order to determine its suitability for use, including the

topography of the site.

33. In support of this argument, Petitioner points out

that when the County planner reviewed the amendment, he assumed

that less property was within the CHHA than was depicted on the

FLUM, that a majority of the property was at or above 10 feet in

elevation, and that it would not flood in a Category I storm

event. The planner reached this conclusion based on a review of

large-scale United States Geological Survey (USGS) topographic

maps and Light Detecting And Ranging (LIDAR) maps. However, an

undated topographic survey (prepared for an earlier prospective

purchaser of the Patron property and given by Patron to FBE when

it signed a contract to purchase the property) and a technical

memorandum prepared by FBE's consultant, Golder Associates,

Inc., on March 31, 2009, reflected that much of the property

lies within the CHHA at an elevation of five feet or less, or

below the 5.8-foot storm surge elevation for a Category I storm

event. This information was in the personal files of FBE's

president and its out-of-town consultant and was not given to

the County prior to the adoption of the amendment. Petitioner

argues that this information is the best available data, and

that if the County had been given these documents during its

review process, it would have determined that the Patron

property was not suitable for industrial uses.

34. The County was not given the survey and memorandum

prepared by the FBE consultant because that information was

prepared only for use at the site plan review stage. This is

not unusual since the County does not require signed and sealed

surveys and engineering reports during the amendment process.

While the data were in existence prior to the adoption of the

map change in August 2009, they were not disclosed until a few

days before final hearing (through discovery) and consequently

were not "available for public inspection" prior to the

amendment's adoption. After analyzing the new data (over

objection of opposing counsel) for the first time at hearing,

the County planner indicated that if he had known that the

elevation was lower than that depicted on the USGS maps, he

would have "given [the application] closer consideration." Even

so, he emphasized that his recommendation would still be the

same because any development on the site can be protected during

the development process by berms, suspension of units

aboveground, and other development standards. Assuming arguendo

that the data were "available for public inspection" and should

have been considered for that purpose, given the rigorous

standards that apply during the site approval process, it is

still fairly debatable that the amendment is supported by

adequate data and analysis as to the suitability of the site and

that the County reacted to it in an appropriate manner.

35. Similarly, Petitioner points out that the technical

memorandum prepared by FBE's consultant on March 31, 2009,

revealed that the soils on the site are not suitable for a

heavily loaded structure such as a biomass plant. Therefore, it

argues that the amendment was not based on professionally

acceptable data and analysis with respect to the suitability of

the property to support a biomass plant, as required by

Section 163.3177(6)(a), Florida Statutes, and Rules 9J-

5.005(2)(a) and 9J-5.006(2)(b)2. The latter rule requires a

land use analysis for soils in order to determine the

suitability of proposed uses on the site.

36. In addressing this issue in the staff report, the

planner relied upon the 1983 Soil Survey of Manatee County and

determined that the property had three types of soil: Bradenton

Fine Sand; Chobee Loamy Fine Sand; and Wabasso Fine Sand. See

Joint Exhibit 2 at p. 17. He further determined that these

three soils are "poorly drained, level to nearly level, sandy to

loamy, and underlain by sandy marine sediment and limestone."

Id. However, because several heavy industries are already

operating adjacent and within the immediate surrounding area

with the same type of soil limitations, he concluded that the

soil limitations could be "overcome by the proper design of

drainage facilities and engineering design of buildings." Id.

It is fairly debatable that the data and analysis are adequate

to support the amendment in this respect, and that the County

reacted to that data in an appropriate manner.

37. Petitioner further argues the amendment violates

Rule 9J-5.005(2)(a) because it is not based on a compatibility

analysis of the industrial uses with the residential uses in the

surrounding area. Like the preceding two objections, this one

is framed in terms of a lack of the best available data to

support the amendment. In its Proposed Recommended Order,

Petitioner also cites as being relevant to this objection FLUE

Policies 2.1.1.5 and 2.2.1.22.4.(b)(i), which require that a

change in land use to P/SP(1) only be made "in appropriate areas

when compatible with surrounding development," and that an

applicant "provide information and analysis on the compatibility

of the proposed use or uses . . . with surrounding development."

Petitioner points out that there are six single-family homes,

characterized by one expert as an "artifact" from an earlier

era, that extend out one-half mile along Chapman Road to the

east/southeast of Patron's property, and that the County failed

to consider the compatibility of industrial uses with those

homes. It also argues that the County's analysis was based on

the construction of a sixty-megawatt facility, as proposed by

FBE, and did not consider a larger, more intense facility.

38. In making its compatibility analysis for the

surrounding area, the County considered all residences on

Chapman Road extending out eastward a quarter to a half mile,

which included the six houses in question. With the exception

of the six houses, the data relied upon by the County reflected

that the entire surrounding development is either light or heavy

industrial uses, which is consistent with the County's focus to

encourage industrial development in the Port Manatee area. The

six houses are in a strip of land designated as ROR, which

allows a mix of retail, office, and residential uses. Some of

the existing uses that are near the homes, and within the ROR

category, are considered "intensive." Given this type of

development, it is highly unlikely that more homes will be

constructed in the ROR area. If and when a biomass plant is

constructed, existing development standards will be used to

ensure compatibility with the ROR uses. Petitioner did not

refute this evidence. When considering the area and uses as a

whole, it is fairly debatable that there are adequate data and

analysis to support a determination that the new land use will

be compatible with the residential uses in the surrounding area.

39. All other issues raised by Petitioner and not

addressed herein have been considered and found to be without

merit.

CONCLUSIONS OF LAW

40. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties hereto

pursuant to Sections 120.569, 120.57(1), and 163.3184(9),

Florida Statutes.

41. In order to have standing to challenge a plan

amendment, a challenger must be an affected person as defined in

Section 163.3184(1)(a), Florida Statutes. The facts establish

that Petitioner and Intervenors own property and/or operate a

business within the County and submitted oral or written

comments to the County during the adoption process. Therefore,

they are affected persons and have standing to participate in

this matter.

42. In this case, the Department rendered a notice of

intent to find a plan amendment in compliance. Therefore, the

challenged plan provision "shall be determined to be in

compliance if the local government's determination of compliance

is fairly debatable." § 163.3184(9)(a), Fla. Stat. As such,

Petitioner bears the burden of proving beyond fair debate that

the challenged plan amendment is not in compliance. This means

that "if reasonable persons could differ as to its propriety,"

the plan amendment must be upheld. Martin County v. Yusem , 690

So. 2d 1288, 1295 (Fla. 1997). Stated differently, where there

is "evidence in support of both sides of a comprehensive plan

amendment, it is difficult to determine that the County's

decision was anything but 'fairly debatable.'" Martin County v.

Section 28 Partnership, Ltd. , 772 So. 2d 616, 621 (Fla. 4th DCA

2000).

43. For the reasons given in the Findings of Fact,

Petitioner has failed to establish beyond fair debate that the

amendment is not in compliance. Therefore, it is concluded that

the plan amendment adopted by Ordinance No. 09-31 is in

compliance.

44. Finally, during the hearing, Petitioner offered into

evidence Exhibits 22b, d, f, i, and j, and 26-29, which were

produced by FBE's president at his deposition taken on April 8,

2010, or three working days before the hearing. 3 A ruling on the

admissibility of those exhibits was reserved. They were not

given to the County prior to the adoption of the amendment and

therefore were not available for inspection by the public. Of

the nine exhibits, Petitioner has placed the greatest emphasis

on Exhibit 26, a technical memorandum prepared by its consultant

on March 31, 2009, regarding, among other things, elevation of

the site and soil conditions on the property; and a topographic

survey marked as Petitioner's Exhibit 28, which was represented

by counsel to be excerpts taken from FBE Exhibit 13, an undated

survey given by Patron to FBE after it signed a contract to

purchase the land. FBE offered the complete survey as FBE

Exhibit 13, but only for the limited purpose of describing the

circumstances under which it received the document and not for

its accuracy or content. Petitioner contends these exhibits

constitute the best available data regarding the character of

the land and its suitability for use as a biomass plant. Within

the context of this argument, their admissibility and relevance

depend on whether they were in existence at the time the

amendment was adopted and were available for public inspection

prior to the adoption of the amendment. See § 163.3177(8), Fla.

Stat.; Fla. Admin. Code R. 9J-5.005(1)(c). While all of the

documents appear to pre-date, at least by one day, the adoption

hearing on August 11, 2009, they were not available for public

inspection. Therefore, they cannot be relied upon for the

purposes advanced by Petitioner. The objection to Petitioner's

Exhibits 22b, d, f, i, and j, and 26-29 is sustained.

45. Petitioner contends, however, that under the rationale

in Zemel, et al. v. Lee Cty., et al. , DOAH Case No. 90-7793GM,

1993 Fla. ENV LEXIS 77 (DOAH Dec. 16, 1992, DCA June 22, 1993),

such data may be considered. Unlike the circumstances here,

however, the Zemel case focused on whether data not in existence

until after the adoption hearing could be relied upon as the

best available existing data to challenge a plan amendment.

Determining that such data should not be received in evidence

for that purpose, the hearing officer also concluded in dictum

that the public participation process could be "impair[ed]" by

allowing a local government or affected person to refer at

hearing to existing data not in fact used while adopting the

amendment. Id. at *89. In other dictum , he noted that allowing

a local government or affected person to wait until the final

hearing to identify the existing data that forms the basis for

adopting or challenging the amendment would not serve "the

principles of public participation." Id. Rather than

supporting Petitioner's position, the dictum suggests that even

if data exist at the time the amendment is adopted, they must

have been provided to the local government in order to satisfy

the public participation requirement. See also O'Connell, et

al. v. Dep't of Cmty. Affairs, et al. , DOAH Case No.01-4826GM,

2002 Fla. ENV LEXIS 263 at *16 (DOAH Oct. 16, 1992), adopted ,

2003 Fla. ENV LEXIS 16 (DCA Jan. 3, 2003); Hussey, et al. v.

Collier Cty., et al. , DOAH Case Nos. 02-3795 and 02-3796, 2003

Fla. Div. Hear. LEXIS 304, n.21 at *66-67 (DOAH April 29, 2003,

DCA July 22, 2003).

46. Because of the de novo nature of the proceeding, there

may be circumstances where documents post-dating the adoption

hearing or in existence but not used by the local government at

the adoption hearing would be admissible for purposes other than

satisfying Rule 9J-5.005(2)(a). See , e.g. , Toppino's, Inc. v.

Dep't of Cmty. Affairs , DOAH Case No. 02-0418GM, 2004 Fla. ENV

LEXIS 242, n.2 at *4 (DOAH April 29, 2004, DCA Aug. 9, 2004);

Osborne, et al. v. Town of Beverly Beach, et al. , DOAH Case No.

03-4785GM, 2005 Fla. ENV LEXIS 190 (DOAH Aug. 29, 2005),

adopted , 2005 Fla. ENV LEXIS 189 (DCA Nov. 4, 2005). But here

the disputed documents were proffered only for the purpose of

being used as data to support the requirement that plan

amendments must be based on the best available data, and the de

novo principle does not apply. To the extent Petitioner

contends that some of the exhibits are relevant to issues

regarding the operation of the biomass plant, those issues are

either within the purview of DEP's regulatory jurisdiction, will

be addressed during the site approval process, or are subject to

other state statutes and codes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department of Community Affairs enter

a final order denying USFG's Petition and determining that the

plan amendment adopted by Ordinance No. 09-31 is in compliance.

DONE AND ENTERED this 28th day of July, 2010, in

Tallahassee, Leon County, Florida.

S

D. R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 28th day of July, 2010.

ENDNOTES

1/ All references are to the current version of the Florida

Administrative Code.

2/ All references are to the 2009 version of the Florida

Statutes.

3/ The exhibits are performance specifications for an early

iteration of the biomass plant (Exhibit 22b); an early depiction

of the site layout (Exhibit 22d); the consultant's proposal to

conduct an environmental assessment dated April 14, 2009 (Exhibit

22f); performance specifications for another iteration of the

biomass plant dated August 7, 2009 (Exhibit 22i); the

consultant's proposal for permitting and engineering support

dated August 10, 2009 (Exhibit 22j); the technical memorandum

dated March 31, 2009 (Exhibit 26); a preliminary geotechnical

investigation dated June 21, 2006 (Exhibit 27); excerpts from an

undated survey (Exhibit 28); and the consultant's "project setup

form" to conduct an environmental and noise assessment dated

April 16, 2009 (Exhibit 29).

COPIES FURNISHED:

Thomas G. Pelham, Secretary

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399-2100

Shaw P. Stiller, General Counsel

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399-2100

Robert K. Lincoln, Esquire

Icard, Merrill, Cullis, Timm,

Furen & Ginsburg, P.A.

2033 Main Street, Suite 300

Sarasota, Florida 34237-6093

Lynette Noor, Esquire

Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 325

Tallahassee, Florida 32399-2100

Robert A. Minix, Esquire

Deputy County Attorney

Post Office Box 1000

Bradenton, Florida 34206-1000

James D. Dye, Esquire

Dye, Deitrich, Petruff & St. Paul, P.L.

1111 3rd Avenue, West, Suite 600

Sarasota, Florida 34237-7834

Robert H. Willis, Jr., Esquire

Skelton, Willis, Bennett & Wallace, LLP

Post Office Box 30

St. Petersburg, Florida 33731-0030

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days of the date of this Recommended Order. Any exceptions to

this Recommended Order should be filed with the agency that will

render a final order in this matter.