17-005999GM Whs Visions Of Lakeland, Llc, A Florida Limited Liability Company, And Bs Ranch And Farm, Inc., A Florida Corporation vs. Polk County, A Political Subdivision Status: Closed Recommended Order on Wednesday, March 14, 2018.

Summary: Petitioners proved beyond a reasonable doubt that the Plan Amendment is not in compliance.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WHS VISIONS OF LAKELAND, LLC, A

FLORIDA LIMITED LIABILITY

COMPANY ; AND BS RANCH AND FARM,

INC., A FLORIDA CORPORATION,

Petitioners,

vs. Case No. 17 - 5999GM

POLK COUNTY, A POLITICAL

SUBDIVISION,

Respondent.

_______________________________/

RECOMMENDED ORDER

A duly - noticed final hearing was held in this matter in

Bartow, Florida, on December 19 and 20, 2017, before

Suzanne Van Wyk, an Administrative Law Judge assigned by the

Divi sion of Administrative Hearings.

APPEARANCES

For Petitioner s : Patrice Boyes, Esquire

Patrice Boyes, P.A.

5700 Southwest 34th Street, Suite 1120

Gainesville, Florida 32608

For Respondent: Edward P. de la Parte, Jr., Esquire

Nico las Q. Porter, Esquire

de la Parte & Gilbert, P.A.

101 East Kennedy Boulevard, Suite 2000

Tampa, Florida 33602

STATEMENT OF THE ISSUE

Whether Polk County Comprehensive Plan Amendment 17D - 08/DMS

59550, adopted by Ordinance 2017 - 049 on October 3, 2017 (the

Plan Amendment), is Ðin compliance,Ñ as that term is defined in

section 163.3184(1)(b), Florida Statutes (2017). 1/

PRELIMINARY STATEMENT

On November 1, 2017, Petitioners filed a Petition with the

Division of Administrative Hearings (Division) challenging the

Plan Amendment as not based on relevant and appropriate data and

analysis, internally inconsistent with the Polk County

Comprehensive Plan (Comprehensive Plan) , and not providing

meaningful and predictable standards for the use and develop ment

of land and meaningful guidelines for more detailed land

development regulations, in violation of the Community Planning

Act, chapter 163, p art II, Florida Statutes.

The case was originally assigned to Administrative Law

Judge Francine M. Ffolkes, and was transferred to the

undersigned on November 7, 2017. The case was originally set

for final hearing on November 30 and December 1, 2017, but was

continued due to a death in the family of PetitionerÓs counsel.

The case was rescheduled for final hearing on December 19

and 20, 2017, in Bartow, Florida, and commenced as rescheduled.

The partiesÓ Joint Exhibits J1 through J12 were admitted in

evidence.

Petitioners introduced the testimony of William H. and

Brandy L. Stanton ; Stuart Cullen, P.E. ; and David Depew, who was

accepted as an expert in comprehensive planning. PetitionersÓ

Exhibits P1 through P5, P7 through P12, P14, and P15 were

admitted in evidence.

Respondent, Polk County (the County), introduced the

testimony of John Bohde ; Timothy G. Townsend, accepted as an

expert in solid waste management facilities and soil

manufacturing facilities; and R. Adam Carnegie, AICP, accepted

as an expert in comprehensive planning. RespondentÓs Exhibits

R2 through R4, R6, R8, R9, R11, R14, R17 through R1 9, R25, R2 8,

R29, R31, R34, R39 , R40, R46 through R52, R54 through R61, R64,

R65, R67, R68, R72 through R75, R78 through R82, R86, R90

through R92, R95 through R97, R99 , and R100 were admitted in

evidence.

The parties also introduced the Comprehensive Plan and Land

Development Code (LDC) in evidence.

The three - volume Transcript of the final hearing was filed

with the Division on December 26, 2017. The parties stipulated

to filing proposed recommended orders on January 16, 2018,

21 days following filing of the Trans cript. 2/

The parties timely filed Proposed Recommended Orders on

January 16, 2018, which have been carefully considered by the

undersigned in the preparation of this Recommended Order.

FINDING S OF FACT

I. The Parties and Standing

1. Petitioner, WHS Visio ns of Lakeland, LLC (WHS Visions),

is a limited liability company with its principal place of

business at 2506 Longhorn Avenue in Lakeland, Florida. WHS

Visions owns property in Polk County.

2. William H. and Brandy L. Stanton are the managing

members of WHS Visions, and Mr. Stanton is the registered agent.

3. Petitioner , BS Ranch and Farm, Inc. (BS Ranch), is the

operating company for the property owned by WHS Visions in Polk

County. BS Ranch began operating a soil manufacturing facility

on property ow ned by WHS Visions in Polk County in 2011.

4. Ms. Stanton is the President and a Director of

BS Ranch, and Mr. Stanton is a Vice President and Director

thereof.

5. The County has challenged PetitionersÓ standing to

bring the instant action, alleging Peti tioners did not submit

oral or written comments relating to the Plan Amendment to the

County during its consideration of the Plan Amendment.

6. Petitioners argue they made verbal comments concerning

the Plan Amendment at both the transmittal and adoption hearings

on the Plan Amendment through their agent, Stuart Cullen.

7. Stuart Cullen is a registered Professional Engineer and

Vice President of Engineering for George F. Young, Inc., an

engineering consulting firm with a business address of

1905 South Mai n Street in Gainesville, Florida.

8. On February 5, 2014, Mr. and Mrs. Stanton executed

ÐProperty Owner AffidavitsÑ authorizing George F. Young and

Mr. Cullen to represent ÐWillia m H. Stanton, Jr. and/or

Brandy L. Stanton and/or BS RanchÑ in connection wi th ÐLand Use

Changes and/or associated development plan or permitting

applicationsÑ regarding the properties owned by them as

evidenced by the attached legal descriptions.

9. PetitionersÓ Exhibit 12 is a copy of the executed

Property Owner Affidavits atta ched to a development review

application dated November 6, 2014, for conditional use approval

for the soil manufacturing facility. Mr. Stanton testified that

the Property Owner Affidavit was created by him, was a generic

form for use by the Stantons, and was submitted with several

different applications for land use approvals and permits from

the County.

10. In 2015, BS Ranch engaged George F. Young, Inc. , on an

hourly basis for services related to expansion of the soil

manufacturing facility. Mr. Cullen was listed as the contact

for George F. Young, Inc. , on the contract with BS Ranch, and

Mr. Cullen executed the contract on behalf of George F. Young,

Inc. The scope of services for the contract included Ðdesign,

engineering, permitting, meetingsÑ among other services Ðas

necessary for expanding the facilityÓs operations.Ñ

11. George F. Young, Inc. , and Mr. CullenÓs representation

has not been limited to permit approvals for BS Ranch

operations. Mr. Cullen represented BS Ranch in an application

for an a mendment to the LD C in 2015 to allow soil manufacturing

facilities in Industrial (IND) land use districts.

12. All appearances by Mr. Cullen before the County

Commission beginning in 2014 through the date of the final

hearing have been on behalf of Mr. an d Mrs. Stanton and

BS Ranch. 3/

13. The County considered the subject Plan Amendment,

CPA 17D - 08, concurrently with an amendment to the LDC,

LDC 17T - 10.

14. On August 22, 2017, the County conducted the

transmittal hearing on the Plan Amendment. The Coun ty opened a

public hearing on the Plan Amendment together with the LDC

amendment.

15. Mr. Cullen appeared, introduced himself, and gave his

business address in Gainesville. Mr. Cullen did not state

whether he was speaking on behalf of any person or entit y at the

public hearing.

16. Mr. Cullen testified that Mr. and Mrs. Stanton

requested him to speak on their behalf and, that, given his

numerous appearances in front of the County Commission on behalf

of these same clients, it was Ðwell knownÑ that he was speaking

on behalf of BS Ranch. Mr. Cullen explained that his

representation of BS Ranch Ðwas essentially the only reason I

would have been talking.Ñ

17. Mr. CullenÓs comments were limited to the LDC

amendment, rather than the Plan Amendment. The subst ance of his

comments was a request to restore a previous version of the LDC

which allowed Solid Waste Management facilities to be sited in

IND land use districts. His concern was clearly with the effect

of the LDC amendment on Petitioners Ó existing operat ion.

Mr. Cullen explained to the Commission, ÐSo, in effect, you are

taking a [use] that exists in an available land use category

that is available for somebody to develop . . . and telling

them, no, you canÓt do it anymore because of your land use

catego ry.Ñ

18. On October 3, 2017, the County Commission opened a

public hearing on the Plan Amendment together with the LDC

amendment. Mr. Cullen appeared, introduced himself, and gave

his business address. Mr. Cullen did not identify whether he

was speaking on behalf of any person or entity. Mr. Cullen was

the only speaker during the public hearing.

19. Mr. Cullen addressed both the Plan Amendment and the

LDC amendment. His comment on the Plan Amendment was limited to

a procedural issue. His comments reg arding the LDC amendment

mirrored the comments he made at the transmittal hearing.

II. Soil Manufacturing Facility

20. The Comprehensive Plan contains the following

definition of Soil Manufacturing, adopted in 2016:

A facility that makes soil and soil - re lated

products using natural products as the

primary ingredients. The manufacturing

process utilizes various waste product

streams including, but not limited to, yard

waste, tree trimmings, other plant

materials, pre - consumer food waste, post -

consumer foo d waste, septage, bio - solids,

and sludge. These materials are then

treated and processed using the natural

aerobic and anaerobic decomposition process

to create a soil product that is sold and

removed from the facility.

III. The Plan Amendment

21. The Plan Amendment makes the following pertinent

changes to Division 4.400, Glossary, of the Comprehensive Plan:

MATERIALS RECOVERY FACILITY: A solid waste

management facility that provides for the

extraction from solid waste of recyclable

materials, materia ls suitable for re - use,

repurposing, use as a fuel or soil

amendment, or any combination of such

materials including without limitation a

Soil Manufacturing facility but shall not

include soil manufacturing .

* * *

SOLID WASTE MANAGEMENT FACILITY: Any so lid

waste disposal facility, solid waste

transfer station, materials recovery

facility, volume reduction facility, other

facility, or combination thereof, the

purpose of which is resource recovery of the

disposal, recycling, processing or storage

of solid waste. Salvage Yards, Construction

Aggregate Processing, and Construction

Aggregate Storage and Soil Manufacturing are

excluded from this definition, but may by

[sic] accessory uses to a solid waste

management facility.

22. Generally, the change brings a soil manufacturing

facility within the definition of a Solid Waste Management

Facility. The full impact of the change is not apparent from

the face of the Plan Amendment alone. The Plan Amendment must

be analyzed in conjunction with the LDC amendment. 4/

23. LDC 17T - 10 deletes Soil Manufacturing from Table 2.1,

the LDC ÐUse Table for Standard Land Use Districts,Ñ and deletes

Soil Manufacturing as a conditional use subject to regulations

of Chapter 3. This change effectively eliminates soil

manufactur ing facilities as an allowable, albeit conditional,

use in IND land use districts.

24. LDC 17T - 10 further deletes in its entirety the stand -

alone criteria for conditional use approval of soil

manufacturing facilities, instead regulating those facilities a s

follows:

Section 303 Criteria for Conditional Uses

Manufacturing, Soil

1. All Soil Manufacturing facilities shall

be regulated by the Solid Waste Management

Facilities standards set forth in this LDC

Section 303 and the Comprehensive Plan

except as p rovided in subsection 2, below.

2. Any Soil Manufacturing facilities with a

valid level 4 review approval issued under

the LDC as of the effective date of LDC 17T -

10 may continue to develop in accordance

with the approval in place as of the

effective dat e of LDC 17T - 10. Any such

previously approved facility shall continue

to be governed the Soil Manufacturing

regulations adopted by Ordinance 16 - 040.

Any such previously approved facility may be

modified or expanded pursuant to Section 120

without becomin g subject to the Solid Waste

Management Facility standards set forth in

this LDC Section 303 and the Comprehensive

Plan.

25. This change brings soil manufacturing facilities under

the CountyÓs regulatory scheme for Solid Waste Management

facilities.

26. Both the existing Comprehensive Plan (Future Land Use

Policy 2.125 - O1) and the LDC restrict location of Solid Waste

Management Facilities to Institutional land use districts.

27. Together the Plan Amendment and the LDC amendment

restrict soil manufacturi ng facilities to Institutional land use

districts.

28. PetitionersÓ property and soil manufacturing operation

is located in the IND land use category. Thus, together the

Plan Amendment and the LDC amendment render PetitionersÓ use

non - conforming. 5/

IV. Solid Waste Siting Ordinance

29. The LDC Amendment changes the development review

process and criteria for siting, operating, and expanding a soil

manufacturing facility, by bringing them under the purview of

the Solid Waste Siting Ordinance (Siting Ordi nance).

30. The Siting Ordinance requires a Level 4 site plan

review and consideration of the following:

The haul routes from the nearest arterial

roadway, and proposed points of access to

the property;

The proposed date the construction will

commence;

The volume of waste to be received;

An explanation of the types of wastes to be

received;

A statement specifying the hours of

operation;

The source of the solid waste to be

received;

The levels of odor, dust, and noise

anticipated to be generated by th e facility

and proposed mitigation thereof;

Proposed buffering, which may include more

landscape buffering than required by the

code; and

The height of all structures and other

improvements.

31. The Siting Ordinance prohibits direct access to a

paved local commercial, collector, or arterial roadway, or to a

local residential road. It also sets mandatory setbacks for

Landfills, Incinerators, and Materials Recovery facilities. The

setbacks applicable to Materi als Recovery facilities are

100 feet on all sides, and 500 feet Ðwhen adjacent to

residentially used or designated property.Ñ

V. The 2016 Amendment

32. In 2016, upon application by BS Ranch, the County

amended the Comprehensive Plan and LDC to create ÐSoil

Manufacturing FacilityÑ as stand - alone use, and created a Ðcarve

outÑ from the Siting Ordinance for soil manufacturing

facilities.

33. Under existing LDC section 303, soil manufacturing

facilities are subject to a minimum size of 100 acres, located a

minimum of one - half mile from residential uses and any school or

hospital, 200 feet from any natural waterbody, and 1,500 feet

from any wellhead supplying a public water system. The

restrictions include a minimum setback of 300 feet from

residential districts and a requirement to sequester all

pr ocessed liquids on site either with a liner or other physical

barrier.

34. Under the existing regulations, a soil manufacturing

facility must submit a Facility Operating Plan (Operating Plan)

including the following:

General explanation of the types of w astes

to be received;

Identification of the general sources of the

waste to be received;

Regulatory permits required to operate all

phases of the proposed facility;

Vehicle circulation on and off site;

Methods for mitigation of all odor, dust,

and nois e anticipated to be generated by the

facility to include: best management

practices to address potential odor sources;

the monitoring of odors at the project

perimeter; the identification of potential

off - site odor receptors; and a response

protocol for c omplaints and the resolution

of substantial complaints;

Description of the treatment process in map

and narrative form;

Description and mitigation plan to address

the facilityÓs interaction with

environmentally sensitive areas, any

structures, and the sa fety of residents.

35. If a soil manufacturing facility is the Ðsubstantiated

source of objectionable off - site odors,Ñ the LDC requires the

operator to Ðimmediately take steps to resolve the odor event or

curtail operations until the necessary course of action has been

identified and implemented.Ñ

36. Lastly, the LDC deems any modification to the facility

Operating Plan to be a major modification subject to Level 4

review.

37. The Plan Amendmen t essentially reverses the

2016 amendment, restricting the location of soil manufacturing

facilities to Institutional land use districts and subjecting

them to regulation as a solid waste management facility pursuant

to the Siting Ordinance.

VI. Challenges to the Plan Amendment

A. Data and Analysis

38. The ove rarching basis on which Petitioners challenge

the Plan Amendment is a lack of supporting data and analysis.

39. Section 163.3177(1)(f) requires all plan amendments to

be Ðbased on relevant and appropriate data and an analysis by

the local government that may include, but not be limited to,

surveys, studies, community goals and vision, and other data

available on that particular subject at the time of adoption of

the . . . plan amendment.Ñ

40. The County suggests the Plan Amendment is supported by

three ca tegories of data.

Survey Data

41. First, the County points to the data from a survey

undertaken in 2016 during review of the BS Ranch application to

treat soil manufacturing facilities as a stand - alone use.

42. In 2016, staff undertook a survey of 11 loc al

government jurisdictions to evaluate the use classifications

given to soil manufacturing facilities, land use districts in

which they were allowed, the process by which they could be

sited (e.g., use by right, conditional, special exception),

required s etbacks, and whether an operation plan was required.

County staff surveyed the two adjoining jurisdictions, Highlands

and Hardee Counties, and nine jurisdictions with Ðsimilar land

use characteristics,Ñ in dustries, and access to the

I - 4 corridor.

43. Co unty staff found, Ð [i] n the 11 counties, the

proposed Soil Manufacturing use . . . is mostly considered a

solid waste management facility and often limited to the same

places that landfills are placed.Ñ Of the 11 counties, six

classified the facilities as solid waste management facilities

or solid waste composting facilities, and a seventh as a

landfill.

44. Staff continued, Ð [h] owever, nine out of the

11 counties direct private landfills to industrial

districts . . . . This supports the applicantÓs r equest to

locate these facilities in IND districts.Ñ

45. In 2016, staff analyzed the then - current regulating

scheme which categorized soil manufacturing within a broad

umbrella of Solid Waste Management facilities. In the staff

report on the 2016 plan am endment, staff found that some uses

under that umbrella Ðhave manufacturing characteristics such as

dust and noise . . . and the manufacturing of soil or soil

amendments as described in the Materials Recovery facility.Ñ

46. In the report, staff conclude d as follows:

The applicantÓs use has a significant

manufacturing component and has more off

site impacts than a typical Institutional

Future Land Use designation which typically

includes a school or fire station.

Furthermore, Institutional Future Land Us e

designations are located throughout the

County where manufacturing impacts would be

significant to neighboring property owners.

Therefore, this amendment better aligns a

manufacturing component with the most

appropriate land use which helps protect the

environment and quality of life.

47. In the 2016 staff report for the accompanying LDC

amendment, staff concluded, ÐThe IND district is the most

appropriate location for this proposed use.Ñ Staff made a

finding that the 2016 amendment was internally con sistent with

Policy 2.113 - A1 of the Comprehensive Plan governing the uses and

activities allowed in the IND district.

48. Based on this data and analysis, staff recommended

allowing soil manufacturing facilities as a conditional use in

IND districts requi ring Level 3 review (Planning Commission

approval). The County adopted soil manufacturing facilities as

a conditional use in IND districts requiring Level 4 review

(County Commission approval).

49. With regard to off - site impacts, staff found as

follows:

Whenever solid and liquid wastes are brought

onto a property, the immediate response is

to be concerned about neighboring property

values, particularly that of permanent

residents. The best form of protection from

the impacts associated with wastes (smel l

primarily) is separation. Staff reviewed

the 11 counties surveyed for their setback

requirements between residential properties

and proposed salvage yards, solid waste

facilities, and any uses that process

septage waste. The majority of the setback

dis tances exceeded 150 feet. The ones that

were less required conditional use approval

for which the setback could be established

based on location.

50. The County adopted a requirement to site soil

manufacturing facilities a minimum of one - half mile from

residential uses and require a minimum 300 - foot setback from

residential districts.

51. Finally, staff addressed the risk of environmental

effects. In the staff report, staff stated:

As a condition of approval in the amendment,

it is recommended that soi l manufacturing

processes have an operation plan. Such a

plan not only assesses risk and provides for

contingencies, but also demonstrates the

applicantÓs competency in running the

facility. In the survey staff conducted,

four of the 11 jurisdictions req uired this

for their soil manufacturing equivalents.

Key to all of the required operation plans

are reporting of the type of waste coming

in, the process and byproducts, as well as

the environmental analysis and waste

containment assurances.

52. The Co unty implemented staffÓs recommendation by

requiring the above - summarized Operating Plan.

53. The County argues that the 2016 survey is relevant and

appropriate data to support the Plan Amendment because the

survey found that most jurisdictions classified soil

manufacturing facilities as a solid waste management facility

and often limited those uses to the same land use categories in

which landfills are located.

54. Staff did not testify at the final hearing. No

evidence was introduced to counter staffÓs 2016 findings that

Institutional l and u se districts are located Ðthroughout the

County where manufacturing impacts would be significant to

neighboring property owners Ñ ; that IND designations comprise

less than .6 percent of the unincorporated land area; a nd

staffÓs opinion that Ð[t]he IND district is the most appropriate

location forÑ soil manufacturing facilities.

55. In support of the Plan Amendment, which regulates soil

manufacturing facilities as solid waste management facilities,

the County introduce d expert witness opinions that soil

manufacturing facilities exhibit many of the same

characteristics as solid waste management facilities, and are,

in fact, solid waste management facilities.

56. For example, the waste streams accepted at a soil

manufac turing facility are the same types of waste processed at

a solid waste management facility; the soil manufacturing

facility employs the same treatment operations as a solid waste

management facility; the two types of facilities pose many of

the same enviro nmental, human health, and nuisance risks; and

soil manufacturing facilities are subject to Department of

Environmental Protection (DEP) permitting as solid waste

management facilities.

57. The expert witness testimony was persuasive: soil

manufacturing facilities have many of the same characteristics

as waste management facilities; thus regulation of those

facilities as solid waste management facilities is entirely

appropriate.

DEP Enforcement Data

58. The CountyÓs conclusion that a soil manufacturing

f acility is practically identical to a solid waste management

facility, and thus should be regulated the same, was based

largely in part on DEP permitting and enforcement records the

County deems to be data and analysis supporting the Plan

Amendment.

59. B S Ranch has obtained several permits from DEP.

BS Ranch received a Source Separated Organics Processing

Facility Registration in 2010, which was renewed annually

through 2013. DEP issued an Environmental Resource Permit (ERP)

for construction of certain facilities at the site on

February 26, 2016. On March 25, 2016, DEP issued BS Ranch both

an Industrial Wastewater Permit (IWP) and an Organic Recycling

Facility permit. DEP conducted a wetlands jurisdictional

determination on the property and issued a we tland delineation

determination on May 3, 2016.

60. As new data supporting the Plan Amendment, the County

introduced documentation of DEP enforcement actions taken

against BS RanchÓs Organic Recycling Facilities permit. The

documents include an October 2014 Warning Letter which

culminated in denial of BS RanchÓs Organic Recycling Facility

permit, entry of a Consent Order on February 3, 2015, and a

Consent Order with Corrective Action Plan on November 25, 2015.

61. The County also introduced a Warning L etter and other

correspondence from 2017 relating to alleged violations of

BS RanchÓs IWP and ERP. Among the issues addressed in the

Warning Letter are off - site odor mitigation and the un authorized

location of septage and biosolids on the property.

Code E nforcement Data

62. The last category of data relied upon by the County to

support the Plan Amendment is the CountyÓs own code enforcement

actions against PetitionersÓ operation.

63. The County issued its conditional use approval of

PetitionersÓ operatio n, including its Operation Plan, on

December 6, 2016.

64. On March 24, 2017, the County issued notices of

violation 6/ citing WHS Visions with violating various LDC

provisions based largely on PetitionersÓ operation as Ðthe

reported source of objectionable off - site odors.Ñ The notices

both require WHS Visions to seek additional approvals of the

facility and impose a deadline of April 5, 2017 , for WHS Visions

to correct the violations.

65. The County also issued a ÐCease and Desist Illegal

ActivityÑ letter to WHS Visions. The letter refers to Ðnumerous

instances of fugitive objectionable odor emissions severely

impacting a large number of offsite residents, employees of

nearby businesses, and Polk Parkway employees.Ñ In the letter,

the County required WHS Visions to Ðimmediately cease and

desistÑ operations, particularly receipt of Ðputrescible wastes

such as vegetative wastes, food scraps, animal by - products,

animal manure, wastewater treatment facility effluent,

biosolids, septage, and organic sludgesÑ u ntil all levels of

approval are completed.

66. Petitioners argue these enforcement documents are not

the type of data contemplated in section 163.3177(1)(f), which

includes Ðsurveys, studies, community goals and vision, and

other data available at the tim e of adoptionÑ to support the

Plan Amendment.

67. Petitioners are correct that the enforcement actions

are neither quantitative nor qualitative data regarding the

off - site impacts associated with soil manufacturing facilities.

The documents are data, ho wever anecdotal, regarding the

experience of this one facility and its related permits. They

are not categorically excluded from data contemplated by

163.3177(1)(f).

Appropriate Reaction to the Data

68. The statute requires the local governmentÓs reactio n

to the data be ÐappropriateÑ and Ðto the extent necessary

indicated by the data.Ñ £ 163.3177(1)(f), Fla. Stat.

69. The DEP enforcement and code enforcement data arguably

support the CountyÓs decision to subject soil manufacturing

facilities to a differ ent regulatory scheme. Expert witnesses

testified that the Siting Ordinance was superior to the existing

regulations for the spatial location of waste streams on site,

as well as the length of time wastes could remain on site. 7/ The

Siting Ordinance also contains a stop - work order enforcement

tool.

70. However, the Plan Amendment is not an appropriate

reaction to anecdotal data regarding the off - site odor and

environmental impacts of one soil manufacturing facility by

allowing those facilities in land us e districts which are more

dispersed throughout the County.

71. The enforcement actions do not overcome the CountyÓs

2016 analysis and findings that the use Ðhas more off site

impacts than a typical Institutional Future Land Use

designation,Ñ that ÐInstit utional Future Land Use designations

are located throughout the County where manufacturing impacts

would be significant to neighboring property owners,Ñ and its

conclusion that, for Polk County, Ðthe IND district is the most

appropriate location for this p roposed use.Ñ

72. None of the expert planning witnesses had evaluated

the proximity of Institutionally - designated properties to

residential properties in the County or offered opinions

regarding the appropriate placement of soil manufacturing

facilities w ithin the County.

73. There is no record evidence that the County has fewer

Institutional land use designations than it did in 2016, that

those locations are less dispersed, or that fewer properties

with those designations are located adjacent to reside ntially -

designated properties.

74. Armed with new data documenting fugitive air emissions

from the existing facility, as well as potential for human

health risks, the County made a decision to site similar

facilities in the future in land use districts cl oser in

proximity to residential properties. That decision was not an

appropriate reaction to the data.

B. Internal Inconsistency

75. In the Petition for Administrative Hearing,

Petitioners alleged the Plan Amendment Ðhas created internal

inconsiste ncies . . . by relying on the same data and analysisÑ

relied upon in support of the 2016 amendments.

76. Petitioners did not identify any specific

Comprehe ns ive Plan element, policy, or map with which the Plan

Amendment is alleged to be inconsistent. I nstead , PetitionersÓ

expert testified generally that the Plan Amendment created

internal inconsistencies because the data on which it was based,

namely the 2016 survey of jurisdictions, was likewise the basis

for the CountyÓs 2016 amendment establishing IN D as the

appropriate land use category in which to site soil

manufacturing facilities.

77. PetitionersÓ evidence was insufficient to support a

finding that the Plan Amendment creates an inconsistency with

any element, policy, or map of the existing C ompre hensive P lan.

C. Meaningful and Predictable Standards

78. Finally, Petitioners challenge the Plan Amendment as

contrary to section 163.3177(1), which requires comprehensive

plans to Ðguide future decisions in a consistent mannerÑ and

establish Ðmeaningfu l and predictable standards for the use and

development of land and provide meaningful guidelines for the

content of more detailed land development regulations.Ñ

79. PetitionersÓ expert testimony on this issue was

conclusory and the logic somewhat circula r. The underlying

criticism was, again, the inconsistency of using the same data

to reach diametrically - opposed conclusions regarding the

appropriate land use district to site soil manufacturing

facilities. Further, the expert testified that because the Plan

Amendment rendered PetitionersÓ property non - conforming (both in

its use and applicable development standards), it created

Ðuncertainty . . . for any property owner wanting a reasonable

and consistent development planÑ for his or her property, and

Ðun certainty and inconsistency of standards for controlling the

distribution of land usesÑ because it Ðchanges the standards by

which uses are classified as Industrial.Ñ

80. On the contrary, the Plan Amendment does not create

uncertainty for siting soil manu facturing facilities in the

future. Under the Plan Amendment those facilities are clearly

limited to Institutional land use categories, subject to the

Siting Ordinance and Level 4 development review. While the Plan

Amendment renders PetitionersÓ property non - conforming, that is

not a sufficient basis on which to find that the Plan Amendment

renders the entire Comprehensive Plan without Ðmeaningful and

predictable standards for the use and development of landÑ

generally.

D. Other Issues

81. Petitioner s included in the joint pre - hearing

stipulation as disputed issues, whether the Plan Amendment was

ÐvagueÑ and permitted the County Ðto arbitrarily and

capriciously approve or deny plan amendments or development

approvals, thereby subjecting landowners to f inancial burdens

and creating internal inconsistencies in the [Comprehensive

Plan].Ñ Respondent objected to these issues as outside the

scope of this proceeding.

82. The issue in this case is whether the Plan Amendment

is Ðin compliance,Ñ as that term i s defined in 163.3184(1)(b).

The governing statute does not include Ðvagueness,Ñ

Ðarbitrariness,Ñ or ÐcapriciousnessÑ as a standard for

compliance determinations, and Petitioners cited no authority

supporting such a reading of the statute.

83. Petitione rsÓ arguments on this point appear to recast

the data and analysis argument in hopes of getting a second bite

at the apple.

84. Assuming, arguendo , the Plan Amendment could be

invalidated on the basis of vagueness, arbitrariness, or

capriciousness, Petit ioners did not introduce any credible

evidence to support a finding that the Plan Amendment is either

vague, arbitrary, or capricious.

CONCLUSIONS OF LAW

85. The Division of Administrative Hearings has

jurisdiction over the subject matter and parties her eto pursuant

to sections 120.569, 120.57(1), and 163.3184(5), Florida

Statutes.

86. To have standing to challenge or support a plan

amendment, a person must be an Ðaffected person,Ñ as defined in

section 163.3184(1)(a).

87. The parties stipulated that WH S Visions owns property

in the County and that BS Ranch operates a business in the

County. PetitionersÓ standing turns on whether they Ðsubmitted

oral or written comments, recommendations, or objections toÑ the

County during its consideration of the Plan Amendment. Id .

88. The County alleges Mr. CullenÓs comments during the

transmittal and adoption hearings cannot be attributed to

Petitioners because Mr. Cullen did not identify himself as

speaking on their behalf.

89. The CountyÓs contention is contradi cted by precedent.

ÐThere is no express language in section 163.3184 that would

deny a corporation standing as an affected person if the

corporationÓs representative makes timely comments, but does not

identify the name of the corporation at the time the comments

are made.Ñ Gulf Trust Dev., LLC v. Manatee Cnty. , Case No. 11 -

4502 ( Fla. DOAH Mar. 2, 2012; Fla. DEO Mar. 30, 2012); and s ee

also Hussey v. Brown , Case No. 02 - 3795 ( Fla. DOAH Apr. 29, 2003;

Fla. DCA July 22, 2003) (finding representativesÓ comme nts

fairly attributable to a single landowner where one

representative identified himself as representing a coalition of

Ðlandowners who own propertyÑ within the area subject to the

plan amendment, and a second representative commented, ÐI

represent the 15 ,000 coalition and literally thousands of

individuals,Ñ even though the list of individual owners was not

placed in evidence.).

90. An individual may be found to represent a particular

entity when the individual regularly appears before the local

govern ment representing the entity, is well - known to appear in

that capacity, and is authorized by the entity to appear in that

capacity. See Mildred Falk and Miami Bch. Homeowners AssÓn. v.

City of Miami Bch. , Case No. 89 - 6803 ( Fla. DOAH Aug. 13, 1990;

Fla. DC A Sept. 12, 1990).

91. Next , the County argues that Mr. CullenÓs comments did

not relate to the Plan Amendment, but rather the LDC amendment

being considered by the County concurrently therewith. The

County cites Starr v. Dep ar t ment of C ommunity Aff airs , Case

No. 98 - 0449 ( Fla. DOAH Feb. 11, 2000; Fla. DCA May 16, 2000),

for the proposition that Ðthere must be some connectivity

between the comments, recommendations or objections made, the

specific . . . plan amendment under consideration, and the local

gov ernmentÓs transmittal, review and adoption process of

said . . . plan amendment.Ñ

92. In light of the Findings of Fact regarding the

relationship between the Plan Amendment and the LDC amendment,

Mr. CullenÓs comments connected dire ctly to the heart of the

matter -- the impact of prohibiting soil manufacturing facilities

in the IND land use district.

93. Both WHS Visions and BS Ranch are Ðaffected personsÑ

with standing to bring this action pursuant to 163.3184(1)(a).

94. ÐIn complianceÑ means Ðconsisten t with the

requirements of §§ 163.3177, 163.3178, 163.3180, 163.3191,

163.3245, and 163.3248, with the appropriate strategic regional

policy plan, and with the principles for guiding development in

designated areas of critical state concern and with part I II of

chapter 369, where applicable.Ñ £ 163.3184(1)(b), Fla. Stat.

95. Polk CountyÓs determination that the Plan Amendment is

Ðin complianceÑ is presumed to be correct and must be sustained

if the CountyÓs determination of compliance is fairly debatable .

See § 163.3184(5)(c), Fla. Stat.

96. The term Ðfairly debat ableÑ is not defined in

chapter 163. In Martin County v. Yusem , 690 So. 2d 1288, 1295

(Fla. 1997), the Supreme Court explained:

The fairly debatable standard is a highly

deferential standard r equiring approval of a

planning action if a reasonable person could

differ as to its propriety. In other words,

an ordinance may be said to be fairly

debatable when for any reason that is open

to dispute or controversy on grounds that

make sense or point to a logical deduction

that in no way involves its constitutional

validity.

97 . ÐThe Òfairly debatableÓ rule is a rule of

reasonableness; it answers the question of whether, upon the

evidence presented to the [government] body, the [governmentÓs]

action was reasonably - based.Ñ Lee Cnty. v . Sun belt

Equities, II, Ltd. PÓship , 619 So. 2d 996, 1002 (Fl a . 2d DCA

1993)(citing Town of Indialantic v. Nance , 400 So. 2d 37, 39

(Fla. 5th DCA 1981)).

9 8 . The standard of proof to establish a finding of fact

is prepon derance of the evidence. See § 120.57(1)(j), Fla.

Stat.

Data and Analysis

9 9 . Section 163.3177(1)(f) requires plan amendments to be

Ðbased upon relevant and appropriate data and analysisÑ by the

local government, and includes Ðsurveys, studies, communit y

goals and vision, and other data available at the time of

adoption.Ñ

100 . To be based on data Ðmeans to react to it in an

appropriate way and to the extent necessary indicated by the

data available on that particular subject at the time of

adoption o f the plan amendment.Ñ £ 163.3177(1)(f), Fla. Stat.

10 1 . Based upon the foregoing Findings of Fact,

Petitioners proved beyond fair debate that the Plan Amendment

does not react appropriately to the CountyÓs 2016 survey data

and extensive analysis sustain ing its decision that Ðthe IND

district is the most appropriate location for the [soil

manufacturing] use.Ñ The CountyÓs land use planning decision to

restrict soil manufacturing facilities to Institutional

districts is not open to dispute on grounds that make sense or

point to a logical deduction.

10 2 . The Plan Amendment both regulates and sites soil

manufacturing facilities as solid waste treatment facilities.

The CountyÓs evidence of appropriate locations to site the use,

from a land use perspective, was uncontroverted. Faced with

that evidence, the CountyÓs decision to change the appropriate

land use district going forward was not reasonable. Evidence of

the DEP and local code enforcement actions may constitute

evidence of a need for a different reg ulatory structure, but

were insufficient to support the land use change.

PetitionersÓ Remaining Grounds

10 3 . Petitioners did not prove beyond fair debate that the

Plan Amendment rendered the CountyÓs comprehensive plan

internally inconsistent, devoid of meaningful and predictable

standards for the use and development of land, and meaningful

guidelines for more detailed land development regulations, or

otherwise inconsistent with statutory requirements.

Conclusion

10 4 . For the reasons stated above, the Pe titioner s ha ve

proven beyond fair debate that the Plan Amendment is not in

compliance with the specified provisions of chapter 163, Florida

Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Administration Commission enter

a final order determining Polk County Comprehensive Plan

Amendment 17D - 08/DMS 59550, adopted by Ordinance 2017 - 049 on

October 3, 2017, is not Ðin compliance,Ñ as that term is defined

in section 163.3184(1)(b), Florida Statut es.

DONE AND ENTERED this 1 4 th day of March , 2018 , in

Tallahassee, Leon County, Florida.

S

SUZANNE VAN WYK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahasse e, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1 4 th day of March , 2018 .

ENDNOTE S

1/ A ll references to the Florida Statutes are to the 201 7

versi on.

2/ By agreeing to a deadline for filing post - hearing submissions

more than 10 days after the date on which the Transcript was

filed, the parties waived the requirement that the undersigned

issue this Recommended Order within 30 days after the date o n

which the Transcript was received. See Fla. Admin. Code R. 28 -

106.216(2).

3/ Respondent attempte d to prove that it was not well - known that

Mr. Cullen would be representing Petitioners at the transmittal

and adoption hearings because Mr. Cullen had rep resented other

clients in permitting and development approval processes in the

County and introduced himself as representing those clients at

related public hearings. The evidence proved that any

appearances by Mr. Cullen on behalf of other clients during the

relevant time period were made before staff and members of the

Planning Commission or other body subordinate to the County

Commission.

4/ In fact, the Development Review Committee (DRC) staff report

on LDC 17T - 10 plainly states that the Plan Amendme nt was

purposefully crafted to render the LDC amendment consistent with

the Comprehensive Plan.

5/ Whether PetitionersÓ operation is a ÐgrandfatheredÑ non -

conforming use, pursuant to LDC 17T - 10, is a matter in dispute

and the subject of a separate legal action between the parties.

6/ Separate notices were required for each of PetitionersÓ four

parcels, which together constitute the entire operation. Each

notice alleges the same violations.

7/ In making this finding, the undersigned has deferred to th e

expert witness opinions that the Siting Ordinance is superior to

the existing regulations for soil manufacturing facilities,

especially with regard to regulating off - site impacts.

The County argued that the enforcement actions first alerted it

to require ment for DEP permits and the potential for off - site

odor impacts from soil manufacturing facilities, leading it to

the conclusion that these facilities should be subject to the

Siting Ordinance. That argument is simply not credible. The

County clearly co ntemplated off - site odor and environmental

impacts when it adopted the 2016 plan amendment. In the

required Operating Plan, the facility must include:

Methods for mitigation of all odor , dust,

and noise anticipated to be generated by the

facility to incl ude:

B est management practices to address

potential odor sources ; the monitoring of

odors at the project perimeter; the

identification of potential off - site odor

receptors ; and a response protocol for

complaints and the resolution of substantial

complaint s.

* * *

Regulatory permits required to operate all

phases of the proposed facility; and

* * *

Description and mitigation plan to address

the facilityÓs interaction with

environmentally sensitive areas , any

structures, and the safety of residents.

(e mphasis added).

Further, the 2016 LDC requires the operator to, in the event the

facility is the substantiated source of objectionable off - site

odors, Ðimmediately take steps to resolve the odor event or

curtail operations until the necessary course of ac tion has been

identified and implemented.Ñ By contrast, the Siting Ordinance

merely requires an applicant to include Ð[t]he levels of odor,

dust, and noise anticipated to be generated by the facility and

proposed mitigation thereof.Ñ The Siting Ordinance does no

more, and, arguably, less than the existing regulations, to

address off - site odor impacts than the existing requirement for

an Operation Plan. The Siting Ordinance does not address

environmental impacts at all or require disclosure of the

permits required from other entities. According to Table 2.1 of

the LDC, both soil manufacturing facilities and solid waste

management facilities are conditional uses requiring Level 4

site plan review. The Plan Amendment does not subject soil

manufacturing fac ilities to a more rigorous approval process.

There is some difference between the setbacks required for soil

manufacturing facilities and those required by the Siting

Ordinance. Under the existing regulations, soil manufacturing

facilities must be located a minimum of one - half mile from

residential uses and any school or hospital, 200 feet from any

natural waterbody, and 1,500 feet from any wellhead supplying a

public water system. The restrictions include a minimum setback

of 300 feet from residential di stricts. By contrast, the Siting

Ordinance requires an overall setback of 100 feet on all sides,

and a 500 - foot setback adjacent to Ðresidentially used or

designated property.Ñ Although the Siting Ordinance contains a

larger setback than the existing reg ulations (500 feet compared

with 300 feet), the Siting Ordinance does not include a minimum

distance from residential uses.

COPIES FURNISHED:

Patrice Boyes, Esquire

Patrice Boyes, P.A.

Suite 1120

5700 Southwest 34th Street

Gainesville, Florida 32608

(e Served)

Nicolas Q. Porter, Esquire

de la Parte & Gilbert, P.A.

Suite 2000

101 East Kennedy Boulevard

Tampa, Florida 33602

(eServed)

Edward P. de la Parte, Jr., Esquire

de la Parte & Gilbert, P.A.

101 East Kennedy Boulevard, Suite 2000

Tampa, Florida 3 3602

(eServed)

Daniel A. Fox, Esquire

Hardin & Ball, P.A.

Post Office Box 3604

Lakeland, Florida 33802 - 3604

(eServed)

Kathryne Benbow, Administrative Assistant III

Transportation and Economic

Development Policy Unit

Room 1802, The Capitol

Tallahasse e, Florida 32399 - 0001

(eServed)

John Maclver

(General Counsel to Commission)

Office of the General Counsel

Office of the Governor

Room 209, The Capitol

Tallahassee, Florida 32399 - 0001

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have th e right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.