18-003597GM Heinrich Bracker vs. Cemex Construction Materials Florida, Llc; And Hernando County, Florida Status: Closed Recommended Order on Wednesday, May 1, 2019.

Summary: Petitioner did not prove beyond fair debate that the County's comprehensive plan amendment was not "in compliance."

S TATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HEINRICH BRACKER,

Petitioner,

vs. Case No. 18 - 3597GM

CEMEX CONSTRUCTION MATERIALS

FLORIDA, LLC; AND HERNANDO

COUNTY, FLORIDA,

Respondents.

_______________________________/

RECOMM ENDED ORDER

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

Brooksville, Florida, on October 30 through November 1, 2018,

before Suzanne Van Wyk, an Administrative Law Judge assigned by

the Division of Administrative Hearings.

APPEARANCES

For Petit ioner: Jane West, Esquire

Gennaro Scibelli, Esquire

Jane West Law, P.L.

24 Cathedral Place, Suite 504

St. Augustine, Florida 32804

For Respondent Hernando County, Florida:

Jon Aaron Jouben, Esquire

Joseph Xavier DiNovo, Esquire

Hernando County AttorneyÓs Office

20 North Main Street, Suite 462

Brooksville, Florida 34601

For Respondent Cemex Construction Materials Florida, LLC:

Martin John Alexander, Esquire

Holland & Knight, LLP

701 Brickell Avenue, Suite 3300

Miami, Florida 33131

Roger Williams Sims, Esquire

Holland & Knight, LLP

200 South Orange Avenue, Suite 2600

Orlando, Florida 32801

Lawrence E. Sellers, Jr., Esquire

Holland & Knight, LLP

315 South Calhoun Street, Suite 600

Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

Whether Hernando County Comprehensive Plan Amendment

CPAM 1702, adopted by Ordin ance No. 2018 - 12 on June 12, 2018, is

Ðin compliance,Ñ as that term is defined in section

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

PRELIMINARY STATEMENT

On June 12, 2018, Hernando County adopted CPAM 1702 (the

ÐPlan AmendmentÑ), which changes the future land use designation

of approximately 730 acres within Hernando County (the ÐPlan

Amendment AreaÑ). The Plan Amendment changes the designation of

approximately 572 acres from Residential to Mining, and another

approximately 156 acres from Residential and Regional Commercial

Overlay to Commercial.

On July 12, 2018, Petitioner filed a Petition with the

Division of Administrative Hearings challenging the Plan

Amendment pursuant to section 163.3184. 2/ Petitioner alleges

that the Plan Amendment renders the Pl an internally

inconsistent, contrary to 163.3177(2); fails to react

appropriately to available data to the extent necessary, as

required by section 163.3177(1)(f); and fails to establish

meaningful and predictable standards for the use and development

of l and, and provide meaningful guidelines for the content of

more detailed land development regulations, as required by

163.3177(1).

The case was originally assigned to Administrative Law

Judge Francine M. Ffolkes, and scheduled for final hearing

September 1 8 through 21, 2018. The parties jointly filed a

Motion for Continuance on September 13, 2018, which was granted,

with a status report required by September 17, 2018. Following

consideration of the status report, Judge Ffolkes rescheduled

the final hearin g for October 30 through November 2, 2018.

The case was transferred to the undersigned on

September 26, 2018. The docket reflects a number of motions,

which were granted, in part, and narrowed the issues in dispute.

The parties filed a pre - hearing stipul ation on October 26, 2018,

and the hearing commenced as re - scheduled in Brooksville on

October 30, 2018.

At the final hearing, the partiesÓ Joint Exhibits J1

through J9 were admitted in evidence.

Petitioner testified on his own behalf and presented the

te stimony of Sean McGlynn, accepted as an expert in water

quality, springsheds, and the hydrological components of

springs; Dennis Clark, accepted as an expert in drilling and

blasting, blasting seismology, and mining planning and

practices; Dr. Thomas St. C lair, accepted as an expert in the

fields of adaptive management and large scale ecosystem

restoration; Jim Studiale, accepted as an expert in land use and

comprehensive plann ing; Diane Oriza; and Alyce Walker.

Petitioner introduced Exhibits P 2 (a) and (e) through (h), P5(a)

and (c), P12, P18 through P20, P22, P24, P25, P28, P30

through P33, and P35, which were admitted in evidence.

Respondent , Hernando County (ÐRespondentÑ or ÐCountyÑ) ,

presented the testimony of Ronald Pianta, RespondentÓs Planning

and Zo ning Director, who was accepted as an expert in land use

and comprehensive planning.

Respondent , Cemex Construction Materials Florida, LLC

(ÐCemexÑ) , presented the testimony of Charles Gauthier, accepted

as an expert in land use and comprehensive plannin g; Mark

Stephens, accepted as an expert in civil engineering; geology;

hydrogeology; hy drology; mine planning, design, and permitting ;

and groundwater assessment monitoring; Lee Walton, accepted as

an expert in wildlife ecology, wetlands, and gopher tortoi ses;

Jeffrey Straw, accepted as an expert in drilling, blasting

seismology, vibration monitoring, and the effect of blasting on

structures; Dr. Hank Fishkind, accepted as an expert in

economics and economic impacts; and James Morris. Respondent s

jointly i ntroduced Exhibits R1, R8, R10 through R13, R14(a)

through (c), R19, R21, R22, R24 through R29, R32 through R37,

R39, R40, R49 through R51, R53 through R60, R62, R63, R66, R74,

R75, R87, R90, R97, R98, and R100 through R109, which were

admitted in evidence .

A six - volume Transcript of the final hearing was filed with

the Division on January 28, 2019. On January 31, 2019, the

undersigned granted, in part, PetitionerÓs Motion for Extension

of Time to Submit Proposed Recommended Orders, ordering the

parties t o submit proposed recommended orders on or before

March 1, 2019. 3/ In response to Respondent sÓ Joint Motion for a

Brief Extension of Time, filed March 1, 2019, the undersigned

again extended the deadline for filing proposed recommended

orders to March 11, 2019. The parties each timely filed

Proposed Recommended Orders, which have been carefully

considered by the undersigned in the preparation of this

Recommended Order.

FINDING S OF FACT

The Parties and Standing

1. Petitioner, Heinrich Bracker (ÐPetition erÑ), owns

property and resides in Hernando County. His property is

adjacent to the Plan Amendment Area. Petitioner submitted oral

or written comments regarding the Plan Amendment during the

transmittal hearing.

2. The County is a political subdivision of the State of

Florida with the duty and responsibility to adopt and amend a

comprehensive growth management plan pursuant to section

163.3167, Florida Statutes.

3. Cemex owns property and operates a business within the

County, and seeks to develop the P lan Amendment Area for

limerock mining. Cemex provided oral or written comments to the

County during both the transmittal and adoption hearings on the

Plan Amendment.

Existing Conditions

4. The Plan Amendment Area is 730 undeveloped acres

currently desi gnated for future Residential use, a portion of

which is also subject to a Regional Commercial Overlay district.

5. The Plan Amendment Area contains deposits of hard

limestone, a material which is utilized in the construction of

roads, as well as other u ses requiring high - quality limestone.

6. The Plan Amendment Area is bounded on the north by

County Road 484/ Fort Dade Avenue, portions of which are a canopy

road. The property north of Fort Dade Avenue is designated

Mining, and is the site of CemexÓs exi sting Brooksville South

limestone mining operation (the ÐBrooksville QuarryÑ).

aveling west, Fort Dade Avenue turns south, roughly

forming the western boundary of the Plan Amendment Area. The

majority of the property west of the Plan Amendment Area is

designated Residential, although the northwestern most area is

designated Rural and a small section at the southwest corner is

designated Commercial.

8. The Spring Hill African American Cemetery (Ðthe

CemeteryÑ) is located at the western corner of th e Plan

Amendment Area boundary, south of Fort Dade Avenue.

aveling south, Fort Dade Avenue intersects with State

Road 50, a four - lane divided highway known as Cortez Boulevard,

which forms the southern boundary of the Plan Amendment Area.

The proper ty southwest of Cortez Boulevard is designated

Commercial and is developed with a mix of commercial and

industrial uses. The property to the southeast is designated

Rural and is largely undeveloped, with the exception of the

Bayfront Health Brooksville Ho spital (Ðthe HospitalÑ).

10. The Hospital is located across Cortez Boulevard from

the Plan Amendment Area. The site is a designated Planned

Development and is developed with the Hospital and appurtenant

medical and commercial uses.

11. The eastern bound ary of the northern half of the Plan

Amendment Area is Eureka Drive, a local street providing access

to several residences east of the Plan Amendment Area, including

PetitionerÓs residence. There is no physical boundary on the

southeast portion of the Pla n Amendment Area. All of the

property east of the Plan Amendment Area is designated

Residential, with the exception of the northeast corner, which

is Rural. This area is primarily developed with low density

rural residential uses. Many of the residences are accessed

from Ft. Dade Avenue.

12. In summary, the Plan Amendment Area is bordered by

primarily Residential to the east and west, predominately Rural

to the south, and Mining to the north.

The Plan Amendment

13. The Plan Amendment changes the futur e land use

designation of 573.47 acres of the Plan Amendment Area from

Residential to Mining (Ðthe Mining AreaÑ), and the remaining

156.53 acres from Residential, with a Regional Commercial

Overlay, to Commercial (Ðthe Commercial AreaÑ).

14. The Plan Am endment adds the following text to the

County Comprehensive Plan, Section D:

SECTION D:

FUTURE LAND USE MAPPING CRITERIA & LAND USES

ALLOWED

MINING

CPAM - 17 - 02 shall meet the following stricter

standards:

Criteria 1: Blasting techniques shall

incorpora te the best available techniques

and methods to minimize adverse impacts to

natural and manmade features. The blasting

techniques shall be designed and implemented

to minimize impacts to adjoining land uses.

Criteria 2: A ÐGood Neighbor PolicyÑ is

requi red prior to rezoning the property for

mining to address any potential damage that

may occur as a result of mining activities.

Criteria 3: The applicant will provide

right - of - way to the County in a manner

required by the County Engineer for a

California Street to Citrus Way future

transportation corridor in accordance with

the Functionally Classified Roadways Map for

Hernando County and the MPO Long Range

Transportation Map.

Criteria 4: When mining ceases on the

property, the applicant shall provide for

the portion of the identified future

transportation corridor from Fort Dade

Avenue to SR 50 along the eastern portion of

the property as part of the mining

reclamation requirements in a manner

required by the County Engineer.

Criteria 5: There shall be a minimum 200 -

foot setback and buffer from the mining

property line in mining area adjacent to the

historic cemetery in the northwest corner of

the parcel.

Criteria 6: There shall be a minimum 400 -

foot setback and buffer from the property

line to the nea rest mining area adjacent to

the SR 50 right - of - way. The existing treed

area along SR 50 within this setback shall

be preserved as an undisturbed visual

buffer.

Criteria 7: Protection of the Fort Dade

Tree Canopy. The following steps will be

taken to p rotect the Fort Dade tree canopy:

a. A minimum 200 - foot setback and buffer

shall be provided along Fort Dade Avenue

between the tree canopy and mining

activities;

b. An enclosed overhead conveyor to move

materials from the [Brooksville Quarry]

to the ex isting facilities shall be

required[;]

c. The enclosed overhead conveyor shall be

constructed to a height and location that

will minimize or prevent damage to the

tree canopy;

Criteria 8: To compensate for the loss of

viable wildlife habitat, Cemex sha ll be

required to mitigate through the provision

of a conservation easement over other

property that provides a viable wildlife

habitat adjacent to the Florida Ecological

Greenways Network. The type and amount of

habitat necessary to mitigate impacts shal l

be identified by the comprehensive wildlife

survey. The final mitigation location and

acreage shall be determined prior to

rezoning the property for mining.

Criteria 9: The mining reclamation plan

shall be designed in a manner that allows

for the long - term end use and redevelopment

of the property as a viable mixed - use

community.

The Mining Process

15. During the mining of limestone, the soil above the

limestone, or Ðoverburden,Ñ is removed by bulldozers and other

heavy equipment in phases as mining progresses. This overburden

is stockpiled and set aside for future reclamation use.

16. The limestone is fractured using techniques such as

blasting and mass excavator machinery. The excavated limestone

is loaded onto haul trucks within the quarry, wh ich transport

the material to a primary crusher that reduces the size of the

material.

17. In the instant case, the primary crusher will be

located and utilized in the Mining Area. The crushed material

will then be placed on a conveyer that will trans port it across

Fort Dade Avenue for further processing at the Brooksville

Quarry.

18. Blasting during the mining process generates three

potential off - site impacts: ground vibration, air overpressure,

and flyrock. Ground vibrations are the result of en ergy from a

blast that manifests as vibrations transmitted through the earth

away from the immediate blast site. The state has established

ground vibration limits in Florida Administrative Code Chapter

69A - 2.

19. Air overpressure is the airborne shockwa ve or acoustic

transient generated by an explosion. Air overpressure is

measured in decibels, and FloridaÓs standard is a maximum of

133 decibels.

20. Flyrock is the term describing pieces of limerock that

are thrown into the atmosphere during a blast. Flyrock may

exceed the boundaries of a mining site and land on adjacent or

neighboring property. The occurrence of flyrock can be

minimized by maintaining good mining practices.

The Reclamation Process

21. After mining is complete, the Mining Area will be

reclaimed. The Plan Amendment requires the mining reclamation

plan to be designed in a manner that allows for the long - term

end use and redevelopment of the property as a viable mixed - use

community.

22. The reclamation process entails the replacement of the

overburden soils on the bottom of the quarry floor to a

thickness of about eight feet, creating a finished grade

approximately 16 feet above the historic high ground water

level. Utility lines and other infrastructure to support

redevelopment of th e Mining Area may be installed in this area.

The rest of the overburden soil will be used for sloping on some

of the quarry walls.

23. In addition to the requirements of the Plan Amendment,

the reclamation process must meet the requirements of the State

Department of Environmental Protection and the County

Comprehensive Plan and Land Development Regulations (ÐLDRsÑ).

PetitionerÓs Challenges

24. Petitioner alleges the Plan Amendment is not Ðin

complianceÑ because it (1) creates internal inconsistencies with

the existing comprehensive plan; (2) is not supported by data

and analysis; and (3) fails to create meaningful and predictable

standards for the use and development of land.

Internal Consistency

25. Section 163.3177(2) directs that Ðthe several elem ents

of the comprehensive plan shall be consistent,Ñ in furtherance

of the major objective of the planning process to coordinate the

elements of the local comprehensive plan.

26. Petitioners challenge the Plan Amendment as

inconsistent with the following goals, objectives, and policies

of the existing comprehensive plan.

FLU Objective 1.01H

27. First, Petitioner challenges the Plan Amendment as

inconsistent with Future Land Use (ÐFLUÑ) Objective 1.01H, which

reads as follows: ÐProtect established residen tial areas and

provide for redevelopment of historically platted lands.Ñ

(emphasis added). Petitioner argues that the Plan Amendment

fails to protect his and surrounding residences in close

proximity to the Mining Area, as well as the adjacent

Residentia lly - designated properties, from the adverse effects of

limerock mining.

28. The comprehensive plan recognizes the inherent

inconsistency between residential and mining uses. The Mapping

Criteria for the Mining land use category describes its purpose

as Ð [t]o allow for the extraction of mineral resources where the

impact on major residential areas will be minimal.Ñ

29. The term Ðestablished residential areaÑ is not defined

in the comprehensive plan. The relevant dictionary definition

of ÐestablishÑ reads : 4/

3a: to make firm or stable

b: to introduce and cause to grow and

multiply

// establish grass on pasturelands

4a: to bring into existence : FOUND

// established a republic

b: BRING ABOUT, EFFECT

// established friendly relations

5a: to put on a f irm basis : SET UP

// establish his son in business

b: to put into a favorable position

c: to gain full recognition or acceptance

of the role

// established her as a star

30. There are nine lots along Eureka Drive, which adjoins

the Plan Amendment are a to the northeast. Eight of the nine

lots are developed as residential, some with appurtenant

structures. Some of the residences are mobile homes while

others are site built. Two of the residences are new

construction, including PetitionerÓs residence. The area is

developed as low density, rural residential.

31. There are no non - residential uses in the area.

32. Residential use has been brought into effect in the

area and, as evidenced by the new construction, is continuing to

grow.

33. The resident ial area to the northeast of the Plan

Amendment area is an established, although not major,

residential area.

34. In analyzing whether the Plan Amendment creates an

internal inconsistency with Objective 1.01(H), the focus is on

whether the established res idential area is ÐprotectedÑ from the

adverse effects of the proposed mining use.

35. Comprehensive Plan Objective 1.01(S) and its

implementing policies require the County to establi sh buffers in

its LDRs as a part of the development review and approval

p rocess.

36. The County has adopted LDRs which govern the height,

opacity, and width of buffers required between differing land

uses. The mining activity authorized pursuant to the Plan

Amendment will be subject to the LDRs during the permit approval

proc ess.

37. In addition to the direction to adopt LDRs addressing

buffers, the Comprehensive Plan directly addresses required

buffers between mining uses and contiguous properties. The

Comprehensive P lan requires a minimum 100 - foot setback with a

visual buf fer from the property line of the Plan Amendment Area

to any construction or mining activity on the property.

38. Cemex Ós planning expert testified that this setback

was sufficient to protect the adjoining residential uses from

the impacts of the mining a ctivity. PetitionerÓs planning

expert opined that the setbac k ought to be a minimum of

1000 feet, based upon his familiarity with the requirements of

Polk County and research into setbacks in other counties. He

introduced no support for his opinion other than that these are

the standards required in other jurisdictions.

39. PetitionerÓs expert prepared and introduced an exhibit

overlaying two different setba ck distances, 300 feet and

1000 feet, on an aerial photograph of the residential area

northeast of the Plan Amendment Area. The exhibit shows those

distances from the property line of the Plan Amendment area into

the adjoining properties. The relevance was unclear, since

setbacks and buffers are required to be established on the

property proposing th e new land use, not vice versa.

PetitionerÓs expert witness testimony was not persuasive.

40. The fact that the comprehensive plan includes a

mandatory 100 - foot setback, which applies to this development

scenario, is the best evidence of ÐprotectionÑ aff orded by the

comprehensive plan. The setback may be increased during the

permitting phase when the plans go through review under the

LDRs.

41. Petitioner did not prove that the Plan Amendment is

inconsistent with FLU Objective 1.01H.

FLU Objective 1.07F

42. Petitioner next challenges the Plan Amendment as

internally inconsistent with FLU Objective 1.07F and

Policy 1.07F(7), which read as follows:

Create a self - contained medical campus

incorporating the use of the Brooksville

Regional Medical Center and s urrounding

lands by providing for hospital and health

care - related uses.

* * *

(7) The Brooksville Regional Medical Center

Planned Development District and its health

care - related activities shall be protected

from encroachment by incompatible land use s.

An infrastructure analysis shall be used to

demonstrate that adequate public facilities

will be provided, prior to the issuance of

any development order. (emphasis added).

43. PetitionerÓs expert, James Studiale, testified that he

believes the Plan Amendment is inconsistent with Policy 1.07F(7)

because the Mining Area will encroach upon the Brooksville

Regional Medical Center Planned Development District (the

ÐDistrictÑ). Studiale stated that he believes that encroachment

occurs when one use is Ðhur tingÑ another use because it is so

near.

44. Petitioner introduced the testimony of Dennis Clark,

who was accepted as an expert in drilling and blasting, blasting

seismology, and mining planning and practices. Mr. Clark

testified that mining uses impact surrounding uses by both

ground vibration and air overpressure, as well as potential for

fly rock. He expressed opinions that the hospital and its

occupants will be impacted to varying degrees Ðdepending on the

blast and the density of the rock and the co mpositions.Ñ

45. Mr. Clark agreed that, in order to understand the

potential impacts of a mining operation with respect to the

hospital, he would need to know the number of blast holes in a

particular blast, the loading parameters for the blast holes,

th e amount of stemming on top of the explosives in the blast

holes, the locations of the blast holes, the orientation of the

blast holes, the type of detonators used, the sequence and

timing of the blasts, as well as the physical condition of the

hospital.

4 6. Mr. Clark agreed that blasting in close proximity to

structures can be done safely, and admitted that he has

personally blasted safely within three feet of a hospital wall.

47. Petitioner argues that the potential impacts of

mining, including ground v ibration, air overpressure, and

flyrock, will encroach upon , and negatively impact, or Ðhurt,Ñ

the district and its healthcare - related activities, in violation

of Objective 1.7 and Policy 1.7(F).

48. PetitionerÓs argument was not persuasive.

Policy 1.07F (7) does not bear on external impacts to the

District. As RespondentsÓ planning expert, Charles Gauthier,

explained, the District is a customized future land use

designation with Ðinward lookingÑ policies. The language of

Policy 1.07F(7) calls for protec tion against encroachment of

incompatible uses within the District, and Objective 1.07F works

in concert with Policy 1.07F(1) to prohibit retail commercial or

general office development as a primary use.

49. As noted by both Mr. Gauthier and County Plann ing and

Zoning Director, Ronald Pianta, the intent of Policy 1.07F is to

prevent infiltration of nonmedical - related uses that would

consume land within the District. The second sentence in

Policy 1.07F(7) supports this interpretation because the

sentence calls for an infrastructure analysis to demonstrate

adequate public facilities prior to issuance of any development

order. Mr. Gauthier explained that it would be illogical to

view the adequate public facilities requirement as extending

beyond the Distric t. Even PetitionerÓs planning expert,

Mr. Studiale, agreed that the purpose of the District is to

protect the area around the Hospital for medical - related uses.

50. Assuming, arguendo, that Objective 1.07F and

Policy 1.07F(7) were interpreted to regula te uses outside of the

District, Petitioner did not establish that the Plan Amendment

would ÐhurtÑ the District or its activities. Mr. ClarkÓs

testimony regarding off - site impacts was speculative and

dependent upon many factors within the exclusive contro l of the

mining operators. The Plan Amendment requires Cemex to design

and implement blasting techniques to minimize impacts on

adjoining land uses. Based on Mr. ClarkÓs testimony, off - site

impacts, including ground vibration, air overpressure, and

flyro ck, can be controlled and minimized by careful scheduling,

spacing, orientation, and timing of blasts. As such, Petitioner

did not prove the Plan Amendment would ÐhurtÑ District

operations.

51. Petitioner did not prove the Plan Amendment is

inconsistent with FLU Objective 1.07F and Policy 1.07F(7).

Mining Element Goal 1.08

52. Next , Petitioner alleges the Plan Amendment is

inconsistent with Mining Element Goal 1.08, which reads as

follows:

Hernando County shall protect its citizens,

air, land and water resources from the

adverse effects of resource extraction and

ensure that the disturbed areas are

reclaimed to wholesome condition as soon as

reasonably possible.

53. Goal 1.08 is implemented by four objectives and

implementing policies that set standar ds for earthen dams,

mining setbacks, berms and buffers, and reclamation activities.

Petitioner does not allege that the Plan Amendment is

inconsistent with any of the objectives and policies

implementing Goal 1.08.

54. The Plan Amendment requires the r eclamation of the

Mining Area for purposes of redevelopment for mixed uses upon

the completion of mining activities.

55. The County Comprehensive Plan is formatted with goals,

objectives, and policies which describe how the CountyÓs

programs, activities, and land development regulations will be

initiated, modified, or continued to implement the comprehensive

plan in a consistent manner. § 163.3177(1), Fla. Stat. In the

context of the Community Planning Act, goals are statements of

long - term vision or asp irational outcomes and are not measurable

in and of themselves. Goals must be implemented by intermediate

objectives and specific policies to carry out the general plan

goals. With regard to Goal 1.08, Petitioner did not allege that

the Plan Amendment wa s inconsistent with any of the implementing

objectives or policies.

56. The County introduced evidence that it has adopted

standards for earthen dams, mining setbacks, berms and buffers,

and reclamation activities, as required by Goal 1.08 and its

imple menting policies. Petitioner introduced no evidence that

the Plan Amendment failed to comply with any of those standards.

Objective 1.10B and Policy 1.10B(3)

57. The last internal inconsistency alleged by Petitioner

is with Mining Element Objective 1.1 0B and Policy 1.10B(3),

which read as follows:

For all land added to the mining category,

protect ecological features and natural

resources from the adverse impacts of

resource extraction.

* * *

Resource extraction shall not be allowed in

areas of habita t known to support viable

populations of threatened and endangered

species.

58. Petitioner asserts that the Plan Amendment allows

mining in an area known to support a viable population of gopher

tortoise, a listed threatened species. According to the L isted

Species Survey (the ÐFlatwoods ReportÑ) conducted by CemexÓs

environmental consultant, 54 gopher tortoise burrows were

discovered in the abandoned citrus habitats on - site.

59. The parties introduced conflicting evidence of whether

54 burrows consti tuted a viable population of gopher tortoise.

PetitionerÓs expert, Thomas St. Clair, offered testimony based

on the Flatwoods Report and not on any independent survey or

knowledge of the subject property. The Flatwoods Reports lists

nine different threat ened or endangered species, describes their

habitat preferences, their likelihood of occurrence on the site,

and their listed status. Mr. St. Clair indicated that the

Flatwoods Report concludes the site does not support a viable

population of any of the o ther eight species, and that, in his

opinion, the report suggests there is a viable population of

gopher tortoises. His precise testimony was, Ð[B]ased on the

fact that there is not a statement about whether or not thereÓs

a viable population, we might co nclude Î and I conclude Î that

there is a viable population of gopher tortoises on the site.Ñ

This testimony amounts to an argument that two negatives make a

positive. The argument was not persuasive.

60. When pressed by the undersigned, Mr. St. Clair

expressed his opinion that a viable population is Ðone where you

have active reproduction and that population is sustaining

itself over time.Ñ He testified that, based on the presence of

both Ðabandoned and active burrowsÑ on a large area indicates a

viab le population. Mr. St. Clair later said the combination of

Ðactive and i nactive burrowsÑ in the area le d him to conclude

the population was viable.

61. The Gopher Tortoise Survey incorporated in the

Flatwoods Report mapped all active and inactive, but n ot

abandoned, burrows on the site. The map indicating the location

of the 54 burrows does not distinguish between active and

inactive burrows. Nor was there any testimony to distinguish

active from in active burrows on the site. All of the burrows

could be either active or inactive. Mr. St. ClairÓs testimony

was not persuasive.

62. The most persuasive evidence on the issue was offered

by CemexÓs expert, Lee Walton. Mr. Walton is a gopher tortoise

expert and the author of the Flatwoods Report. He test ified

that the gopher tortoise habitat on site is poor quality,

located in degraded orange groves, with limited food resources.

When he surveyed the property in 2017, there were 54 burrows;

down from 61 burrows identified when he surveyed the property

six years earlier. He also noted the absence of juvenile

tortoises during both surveys. Juveniles are necessary to

support a viable population.

63. Finally, Respondent s introduced a report prepared by

The Gopher Tortoise Council, dated July 24, 2013, whic h

indicates that a minimum viable population of gopher tortoises

is 250 adults. The report r efers to groups of less than

50 tortoises as Ðsmall non - viable populations.Ñ

64. Petitioner did not prove that the Plan Amendment Area

includes habitat known to support a viable gopher tortoise

population.

65. Petitioner did not prove the Plan Amendment is

inconsistent with Objective 1.10B and Policy 1.10B(3).

Data and Analysis

66. Section 163.3177 requires plan amendments to Ðbe based

upon relevant and approp riate data and an analysis by the local

government.Ñ The statute provides, Ð[t]o be based on data means

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 ofÑ the plan amendment at issue. Id.

67. Further, Ðdata must be taken from professionally

accepted sources.Ñ £ 163.3177(1)(f)2. , Fla. Stat. The statute

does not require original data collection by local governments.

68. In his Proposed Recommended Order, Petitioner

generally argues that the Plan Amendment is Ðnot based upon and

fails to react appropriately to relevant, appropriate, or

professionally acceptable data and analysis,Ñ but identifies no

specific data or analysis that is contrary to the Plan

Ame ndment.

69. Petitioner does highlight the fact that the County has

13,000 acres currently designated for m ining use, arguing that

the conversion of this property to mining use is not supported

on that basis.

70. The Plan Amendment is supported by extensi ve data

identifying the Plan Amendment Area as located within the

Hernando County Brooksville Ridge, which contains viable and

valuable deposits of limestone known as Suwannee limestone;

e xpert geologist, Mark StephensÓ confirmation that a reserve of

this limestone exists beneath the Mining Area; and the location

of the Plan Amendment Area adjacent to the existing Brooksville

Quarry, which allows efficiencies in production and processing

of the limestone on site.

71. The Plan Amendment is based on data fro m the County

and from the Bureau of Economic and Business Research at the

University of Florida that, although the Mining Area is

currently designated for Residential use, market conditions are

such that residential development in the area is not likely in

the near future. This finding is further supported by data

documenting an excess supply of residentially designated

property in the County.

72. The Plan Amendment is supported by Dr. Henry

FishkindÓs analysis, based on data available at the time the

Pla n Amendment was adopted, that the Plan Amendment will

generate $38 million in net fiscal revenue to the County during

the 20 - year lifespan of the mining operation.

73. Petitioner did not introduce any relevant credible

data or analysis which contradicted the voluminous data

submitted in support of the application.

74. Petitioner did not prove the Plan Amendment is not

supported by relevant and appropriate data and analysis, or that

it does not react to available data and analysis in an

appropriate way.

Me aningful and Predictable Standards

75. Finally, Petitioner alleges the Plan Amendment is

inconsistent with section 163.3177(1), which requires that a

local comprehensive plan Ðshall establish meaningful and

predictable standards for the use and developme nt of land and

provide meaningful guidelines for the content of more detailed

land development regulations.Ñ

76. In his Petition, Petitioner alleged the Plan Amendment

Ðeliminates from the CountyÓs Comprehensive Plan existing

meaningful guidelines focus ed on residential growth for the

content of more mine zoning.Ñ Petitioner further alleged that

the Plan Amendment fails to provide meaningful and predictable

standards for protecting, preserving, enhancing, conserving, and

restoring Hernando CountyÓs envi ronmentally sensitive natural

resources. Petitioner did not cite to any particular aspect of

the change in use or any particular language of the Plan

Amendment alleged to fall short of meaningful and predictable

standards.

77. The Plan Amendment does not delete or eliminate any

provision of the existing Comprehensive Plan. The Plan

Amendment changes the future land use designation of the Plan

Amendment Property and adds text setting criteria to be followed

in the mining and reclamation process. These cr iteria are in

addition to other regulations imposed on mining and reclamation

uses through the Mining Element and the CountyÓs land

development regulations.

78. Petitioner argues in his Proposed Recommended Order

that the Plan Amendment does not provide meaningful standards

for the development of land because it does not react

appropriately to relevant, appropriate, or professionally -

acceptable data and analysis. That argument is a simple

restatement of his data and analysis challenge , which was not

prov en.

79. Petitioner alternately argues that the development

standards in the Plan Amendment are not predictable because they

conflict with other existing provisions of the Comprehensive

Plan. This is another repackaging of PetitionerÓs internal

inconsiste ncy argument, which was not proven.

80. Petitioner did not prove that the Plan Amendment fails

to provide meaningful and predictable standards for the use and

development of land or for the establishment of more detailed

land development regulations.

CON CLUSIONS OF LAW

81. The Division of Administrative Hearings has

jurisdiction over the subject matter and parties hereto pursuant

2 8

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

Statutes .

82. To have standing to challenge or support a plan

amendm ent, a person must be an affected person as defined in

section 163.3184(1)(a). Petitioner is an affected person within

the meaning of the statute.

83. Cemex is an affected person within the meaning of the

statute.

84. ÐIn complianceÑ means Ðconsistent w ith the

requirements of sections 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 par t III of

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

85. The CountyÓs determination that the Plan Amendment is

Ðin complianceÑ is presumed correct and must be sustained if the

determination of compliance is Ðfairly debatable.Ñ See

§ 16 3.3184(5)(c), Fla. Stat.

86. The term Ðfairly debat ableÑ is not defined in

chapter 163, but the Florida Supreme Court held in Martin County

v. Yusem , 690 So. 2d 1288 (Fla. 1997) , that Ð[t]he fairly

debatable standard is a highly deferential requiring appr oval of

a planning action if reasonable persons could differ as to its

propriety.Ñ Id. at 1295.

87. The standard of proof to establish a finding of fact

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

Stat.

Internal Inconsistencies

88. Pe titioner did not prove beyond fair debate that the

Plan Amendment created any internal inconsistencies with the

cited provisions of the Comprehensive Plan.

89. Petitioner did not prove the Plan Amendment fails to

protect established residential areas, a s stated in FLU

Objective 1.01H. While Petitioner introduced evidence of larger

setbacks for mining adjacent to residential uses established by

other jurisdictions, he did not prove that the CountyÓs minimum

100 - foot buffer was beyond fair debat e.

90. Moreover, a compliance determination is not a

determination of whether a comprehensive plan amendment goes far

enough to achieve its purposes. See Manasota - 88 v. Dep't of

Cmty . Aff. , Case No. 02 - 3897 (F la. DOAH May 14, 2004; Fla. DCA

Aug. 13, 2004)(plan a mendment Ðin complianceÑ although the local

government designated wildlife greenway could have been larger

to accommodate more species); McSherry v. Alachua Cnty. ,

Case No. 02 - 2676 (Fla. DOAH Oct. 18, 2004; Fla. DCA May 22,

2005), aff'd , 903 So. 2d 194 (F la. 1st DCA 2005)(while the

County would have been better served to refine its definition of

Ðstrategic ecosystemÑ to include standards set forth elsewhere

in the plan, the failure to do so does not invalidate the

definition under the Ðfairly debatableÑ st andard). As well

stated by Administrative Law Judge Stevenson in Geraci v.

Department of Community Affairs , Case No. 95 - 0259 (Fla. DOAH

Oct. 14, 1998; Fla. DCA Jan. 13, 1999), aff'd , 754 So. 2d 35

(Fla. 1st DCA 1999), ÐPetitioner's burden was not to show that

[Petitioner's preferred land use classification] was better, but

that [the assigned land use classification] was non - compliant to

the exclusion of fair debate.Ñ

91. Likewise, Petitioner did not prove that the CountyÓs

interpretation of Objective 1.07 F and Policy 1.07F(7), to

regulate uses internal to the District, was beyond fair debate.

PetitionerÓs arguments that the Plan Amendment would ÐhurtÑ the

hospital district were unpersuasive.

92. Finally, PetitionerÓs challenge on the basis of

Objective 1 .10B is also rejected. Petitioner did not prove that

the CountyÓs interpretation of Ðviable populationsÑ of gopher

tortoise was beyond fair debate.

Other Allegations

93. Based on the foregoing Findings of Fact, Petitioner

did not prove beyond fair deb ate that the Plan Amendment fails

to react appropriately to data and analysis or fails to provide

meaningful and predictable standards for the use and development

of land.

Conclusion

94. Petitioner has not proven beyond fair debate that the

Plan Amendme nt is inconsisten t with section 163.3177(1) and (2),

Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department of Economic

Opportunity enter a final order determining that Plan Am endment

CPAM 1702, adopted by Hernando County Ordinance 2018 - 12, on

June 12, 2018, is Ð in compliance, Ñ as that term is defined by

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

DONE AND ENTERED this 1st day of May , 2019 , in Tallahassee,

Leon County, Florida.

S

SUZANNE VAN WYK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, 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 1st day of May , 2019 .

ENDNOTE S

1/ Except as otherwise provided herein, all references to the

Florida Statutes are to the 2017 version, which was in effect

when the Plan Amendment was adop ted.

2/ Petitioner originally raised challenges related to both the

Mining Area and the Commercial Area, but later withdrew its

challenge relating to the Commercial Area.

3/ Pursuant to Florida Administrative Code Rule 28 - 106.216(2),

the parties waived the requirement that this Recommended Order

be issued within 30 days after the date on which the Transcript

was filed.

4/ ÐEstablishÑ Definition, Merriam - Webster.com,

https://www.merriam - webster.com/dictionary/establish (last

visited April 24, 2019).

COPIES FURNISHED:

Gennaro Scibelli, Esquire

Jane West Law, P.L.

Suite 504

24 Cathedral Place

St. Augustine, Florida 32084

(eServed)

Jane West, Esquire

Jane West Law, P.L.

Suite 504

24 Cathedral Place

St. Augustine, Florida 32084

(eServed)

Lawrence E. Sellers, Jr., Esquire

Holland & Knight, LLP

Suite 600

315 South Calhoun Street

Tallahassee, Florida 32301

(eServed)

Jon Aaron Jouben, Esquire

Hernando County Attorney's Office

Suite 462

20 North Main Street

Brooksville, Florida 34601

(eServed)

Mart in John Alexander, Esquire

Holland & Knight, LLP

Suite 3300

701 Brickell Avenue

Miami, Florida 33131

(eServed)

Roger William Sims, Esquire

Holland & Knight, LLP

Suite 2600

200 South Orange Avenue

Orlando, Florida 32801

(eServed)

Joseph Xavier DiNovo, E squire

Hernando County Attorney's Office

Suite 462

20 North Main Street

Brooksville, Florida 34601

(eServed)

William Chorba, General Counsel

Department of Economic Opportunity

Caldwell Building, MSC 110

107 East Madison Street

Tallahassee, Florida 3239 9 - 4128

(eServed)

Ken Lawson, Executive Director

Department of Economic Opportunity

Caldwell Building

107 East Madison Street

Tallahassee, Florida 32399 - 4128

(eServed)

Stephanie Webster, Agency Clerk

Department of Economic Opportunity

Caldwell Build ing

107 East Madison Street

Tallahassee, Florida 32399 - 4128

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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

to this Recommend ed Order should be filed with the agency that

will issue the Final Order in this case.