STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF COMMUNITY AFFAIRS, )
)
Petitioner, )
and )
) BASIC ENERGY CORPORATION and ) KENNETH AND JANICE KRANTZ, )
)
Intervenors. )
)
vs. ) CASE NO. 91-6038GM
)
HAMILTON COUNTY, )
)
Respondent. )
)
RECOMMENDED ORDER
Notice was provided and on December 6 and 7, 1994, a formal hearing was held in this case. The hearing location was the Hamilton County Courthouse, 207 Northeast First Street, Jasper, Florida. Authority for conducting the hearing is set forth in Section 120.57(1), Florida Statutes. Charles C. Adams was the Hearing Officer.
APPEARANCES
For Petitioner: David L. Jordan, Esquire
Terrell L. Arline, Esquire
Suzanne Schmith, Certified Legal Intern Department of Community Affairs
2740 Centerview Drive
Tallahassee, Florida 32399-2100
For Intervenors: Donald J. Schutz, Esquire
535 Central Avenue, Suite 415 St. Petersburg, Florida 33701
For Respondent: William L. Hyde, Esquire
Gunster, Yoakley, Valdes-Fauli and Stewart, P.A.
515 North Adams Street Tallahassee, Florida 32301
STATEMENT OF ISSUES
Have the Intervenors timely challenged the Hamilton County adoption of its comprehensive plan under the Local Government Comprehensive Planning and Land Development Regulation Act, Chapter 163, Part II, Florida Statutes? If allowed to pursue their challenge, what is their burden of proof? Is it pursuant to Section 163.3184(9), Florida Statutes, (1991), the "fairly debatable" standard?
Is it pursuant to Section 163.3184(10), Florida Statutes, (1991) the "preponderance" standard? Did Hamilton County (the County) fail to adopt its comprehensive plan within sixty (60) days from the receipt of written comments from the Department of Community Affairs (DCA) as required by Section 163.3184(7), Florida Statutes (1991)? If it did, was that failure jurisdictional thereby voiding the adoption process? Within the adopted plan, is Policy V.2.13 requiring special permits for hazardous and bio-medical waste treatment facilities and for their placement in areas designated agricultural and located with the rural area of Hamilton County, consistent with plan adoption requirements set forth in Chapter 163, Florida Statutes, (1991), Chapter 9J-5, Florida Administrative Code, the State Comprehensive Plan set forth in Chapter 187, Florida Statutes (1991) and the North Central Florida Regional Policy Plan? Within the adopted plan is Policy 1.15.1 prohibiting the disposal of medical, bio-hazardous, hazardous or solid waste by incineration or by other methods which produce air pollution, other than by facilities permitted, legally sited and operated as of July 23, 1991, consistent with plan adoption requirements set forth in Chapter 163, Florida Statutes (1991), Chapter 9J-5, Florida Administrative Code, the State Comprehensive Plan as set forth in Chapter 187, Florida Statutes, and the North Central Regional Policy Plan? More particularly must these policies meet and do they meet the requirements for surveys, studies and data set forth in Section 163.3177(6)(a),(8) and (10)(e), Florida Statutes (1991) and Rule 9J-5.005(2), Florida Administrative Code?
PRELIMINARY STATEMENT
On September 12, 1991, DCA gave notice that it intended to find the Hamilton County Comprehensive Plan not "in compliance." See Section 163.3184(1)(b), Florida Statutes (1991).
On September 23, 1991, DCA filed a petition consistent with Section 163.3184(10), Florida Statutes (1991). That petition was transmitted to the Division of Administrative Hearings for hearing officer assignment. A hearing officer was assigned to conduct the proceeding called for by Section 163.3184(10), Florida Statutes (1991).
On February 20, 1992, TSI Southeast, Inc., Kenneth R. Krantz and Janice A. Krantz petitioned to intervene in the proceeding before the Division of Administrative Hearings. (TSI Southeast, Inc. subsequently became Basic Energy Corporation.) Consistent with Section 163.3184(10), Florida Statutes (1991), that petition to intervene was granted on March 17, 1992.
As contemplated by Section 136.3184(16), Florida Statutes (1993), DCA and the County executed a stipulated settlement agreement on November 24, 1993.
Intervenors did not join in that settlement.
Consistent with Section 163.3184(16), Florida Statutes (1993), an order was entered on December 2, 1993, abating the proceedings before the Division of Administrative Hearings to allow the governmental parties to conclude their settlement.
As called for by the stipulated settlement agreement, on January 18, 1994, the County adopted remedial amendments to the comprehensive plan.
On March 10, 1994, DCA issued a cumulative notice of intent directed to the compliance agreement amendments and the plan itself. That statement indicated DCA's intention to find the compliance agreement amendments and the plan itself "in compliance".
On May 5, 1994, DCA and the County moved to dismiss the case before the Division of Administrative Hearings for failure of any party to file an independent administrative action challenging the remedial amendments (compliance agreement amendments).
An order was entered on May 17, 1994, denying the motion to dismiss. That order referred to the fact that the Intervenors had not agreed to the dismissal. It directed DCA's counsel to confer with the other parties and advise the hearing officer concerning the issues that remained to be litigated, in particular whether those issues pertained to the amendments adopted pursuant to the compliance agreement or the portions of the plan which was unaffected by the agreement.
On June 16, 1994, the County moved to dismiss or strike the Intervenors as parties based upon the theory that certain circuit court proceedings involving the County and Intervenors barred the Intervenors participation in the administrative case based upon the doctrine of res judicata. On July 27, 1994, an order was entered denying that motion.
On October 17, 1994, the County moved to exclude evidence and testimony pertaining to Intervenors' claims that: (A) Intervenors possessed vested rights under the adopted Hamilton County Comprehensive Plan to develop their proposed bio-hazardous waste incinerator and (B) that the local planning agency was not properly involved in the comprehensive plan adoption process. DCA joined in the motion. Intervenors did not respond to the motion. On November 8, 1994, the motion was granted.
The prehearing requirements set forth in the October 14, 1991 order were complied with through a prehearing stipulation filed by the Petitioner and Respondent on December 1, 1994 and confirmed by Intervenors on December 2, 1994. On that second date Intervenors also filed supplemental information in accordance with the instructions set forth in the prehearing order.
As the burdened parties, Intervenors presented two witnesses at hearing: Kenneth R. Krantz and James Lee Boyland. Mr. Boyland was qualified as an expert witness in permitting designs and operation of hazardous and bio-medical waste incinerators. Intervenors Exhibits 1, 3, 5, 7, 10, 10-A, 10-AA, 18 and 18-A were admitted.
The County presented three witnesses: Hamilton County Commissioner Lamar Hill; Scott Koons, qualified as an expert in comprehensive planning, urban planning, land use planning, growth management and community development; and Dr. Ralph Dougherty, qualified as an expert in environmental mass spectrometry, analytical chemistry and the chemistry of waste incineration. Respondent's Exhibits 1 through 7, 9 through 15, 18, 19, 29, 30, 31, 34, 36, 37-B and 38-A through -E were admitted.
DCA presented the witness Maria Abadal-Cahill, qualified as an expert in comprehensive planning. Ms. Abadal-Cahill also testified for the County.
Petitioner's Exhibits 4, 10, and 11 were admitted.
Official recognition was made of Chapter 9J-5, Florida Administrative Code.
The motion by the County with support by the DCA to reopen the record to allow the deposition of Kenneth R. Krantz taken on November 21, 1994 to become part of the record was denied by order entered January 8, 1995.
A hearing transcript was prepared and filed on January 23, 1995. Given the length of time necessary to prepare that transcript, the parties requested additional time within which they might file their proposed recommended orders. The original due date was January 30, 1995. Upon the parties request oral permission was given to the parties to file their proposed recommended orders no later than February 15, 1995. The parties met that deadline. In accordance with Rules 28-5.402 and 60Q-2.031, Florida Administrative Code, the parties having requested more than 10 days for filing their proposed recommended orders, beyond the date upon which the transcript was filed, the hearing officer is not obligated to enter the recommended order with 30 days from the date upon which the transcript was filed. The proposed recommended orders have been reviewed.
The fact finding suggested in those proposed recommended orders is commented on in Appendix "A" to the recommended order.
FINDINGS OF FACT CASE HISTORY
In December, 1990, Hamilton County prepared a proposed comprehensive plan. That proposal was submitted to the Department in accordance with Section 163.3184(3)(a), Florida Statutes.
Within the Conservation Element of the proposed plan the County included Policy V.2.13, which stated:
The County shall only allow hazardous and bio-medical waste treatment facilities as special permits within areas designated agricultural and located within the rural area of the County. Further, the County's land development regulations shall include conditions for such approval of a hazardous and bio-medical waste treatment facility as
a special permit regarding the location, site design, buffer requirements, access to principal arterials and major intersections, requirements for appropriate public facilities, and require- ments which consider wind currents in relationship to population centers, which will direct any incinerated materials or noxious odors from
these population centers. In no case shall a hazardous or bio-medical waste treatment facility be located within an Environmentally Sensitive Area as designated within this Comprehensive Plan.
Policy V.2.13 was associated with Objective V.2 which states:
The County shall include within the land development regulations, by 1992, provisions for the conservation, appropriate use and protection of the quality and quantity of current and projected water sources, water recharge areas and potable water wells.
There was no specific data and analysis in the proposed plan directed to Policy V.2.13.
Other policies associated with Objective V.2 addressed water issues.
In the data and analysis which the County submitted to DCA with its proposed comprehensive plan the County did identify known pollution problems. This included a reference to point discharges for wastewater, non-point sources of water pollution, point air pollution sources and non-point sources of air pollution. None of the known activities were associated with hazardous and bio- medical waste treatment facilities.
The data and analysis associated with the Conversation Element in the proposed plan also identified watersheds, wetlands, lakes, flood prone areas, and current water sources. The data and analysis further discussed the circumstances related to watersheds, wetlands, rivers, lakes, flood prone areas and air quality as the County perceived the existing conditions for those topics. Finally, the data and analysis spoke to the issue of projected water needs.
No mention was made concerning how the aforementioned data and analysis would be considered in granting special permits for hazardous and bio-medical waste treatment facilities.
On April 14, 1991, DCA transmitted its comments to the County concerning the proposed comprehensive plan and supporting data and analysis, together with its objections and recommendations for modifications to the proposed comprehensive plan. This activity was in accordance with Section 163.3184(6), Florida Statutes. The report that was transmitted is known as the "ORC" Report.
The County received the ORC Report on April 22, 1991.
The ORC Report made a number of objections to the objectives and policies set forth in the Conservation Element to the proposed comprehensive plan and recommendations for modifications to the same.
The ORC Report specifically objected to Policy V.2.13 wherein the DCA stated:
Policy V.2.13 does not describe the 'special permits' concerning hazardous and bio-medical waste treatment facilities within agricultural areas, does not define the extent of the buffers, and does not prohibit these facilities in conser- vation areas.
The general recommendation to improve Policy V.2.13, among policies found within the Conservation Element, was to this effect:
Provide data and analysis to support the above- referenced policies. Revise the policies to identify the specific implementation programs or activities that will be undertaken by the County to achieve the goal and objectives with which the policies are associated. Eliminate or define all conditional and vague language.
Revise the Future Land Use Map to support the revised policies.
The County then held two public hearings related to the adoption of a comprehensive plan. See Section 163.3184(15), Florida Statutes (1991).
The first public hearing was held on June 18, 1991. At that time no decision was reached to adopt a comprehensive plan. The public hearing was adjourned.
On July 23, 1991, the County reconvened the public hearing related to the comprehensive plan adoption.
Following the second public hearing associated with the plan adoption, the County in the person of its Board of County Commissioners who had conducted the public hearings, adopted a comprehensive plan for Hamilton County.
The adopted comprehensive plan was transmitted to DCA on July 30, 1991. The transmittal letter supporting the adopted comprehensive plan noted that the comprehensive plan was adopted on July 23, 1991. The transmittal letter pointed out the changes to the adopted comprehensive plan which were not reviewed by DCA when DCA considered the proposed comprehensive plan. As with the proposed comprehensive plan, the County submitted data and analysis with the adopted comprehensive plan pointing out the data and analysis accompanying the adopted comprehensive plan which had not been reviewed by the DCA when it considered data and analysis supporting the proposed comprehensive plan.
Within the conservation element to the adopted comprehensive plan Objective V.2 remained as set forth in the proposed comprehensive plan. Certain policies associated with Objective V.2 had changed. However, Objective V.2. and its associated policies set forth in the adopted comprehensive plan continued to address water issues. In particular, Policy V.2.13 did not change with the plan adoption.
Additional data and analysis submitted by the County supporting the Conservation Element to the adopted comprehensive plan deleted the Suwannee River State Park as a conservation area. Specific references were made to Jumping Gully Creek, Swift Creek, Hunter Creek and the Withlacoochee River and activities associated with those water bodies.
However, as with the proposed plan it was not explained how the County intended to use the original and additional data and analysis in deciding special permit issues for hazardous and bio-medical waste treatment facilities.
When the County adopted its comprehensive plan it added an objective and a policy that had not been included with the proposed comprehensive plan in the category of objectives and policies for both urban development areas and rural areas in the Future Land Use Element.
New Objective I.15 stated:
Residential areas shall be protected from uses which cause or result in greater than average noise, hazards or odors.
The associated Policy I.15.1 stated:
No medical, bio-hazardous, hazardous, or solid waste shall be disposed of by incineration or
by any other method which produces air pollution emissions subject to permitting by the Department of Environmental Regulation within Hamilton County, unless the use or facility was permitted and otherwise legally sited and operated as of July
23, 1991.
The supporting data and analysis which the County provided the Department with the adopted comprehensive plan did not address Objective I.15 nor Policy I.15.1, with the exception that residential land use projections are described.
The adopted plan provided specific information concerning future residential land use. That description was supported by a residential land use need methodology and analysis of future residential land use needed.
As with the proposed plan, the adopted plan included a reference to industrial land use within the Future Land Use Element. In both the proposed plan and the adopted plan in Policy 1.3.1 it was stated:
Lands classified as industrial consist of areas used for the manufacturing, assembly processing or storage of products. Industrial development may be approved in areas of the County not designated industrial on the Future Land Use
Plan upon submission and approval of a development plan which shall include at the least: an industrial site plan; traffic plan; and traffic impact studies; provisions for the construction and maintenance of a wastewater treatment system meeting requirements of the State of Florida for that use; and a submission of a Future Land Use Plan Map amendment to Industrial classification.
Industrial uses shall be limited to an intensity of less than or equal to 1.0 floor area ratio.
The data and analysis associated with industrial land use which had been provided with the proposed comprehensive plan remained consistent with the adopted comprehensive plan when describing the methodology for identifying projected industrial land use. The comments in the data and analysis supporting the proposed and adopted plans indicated:
Projecting the need for additional acreage for industrial use cannot be approached using a methodology similar to those used for residential and commercial Future Land Use needs. This is
due to the fact that there is no direct relationship between population and industrial location. The additional future acreages for industrial location are anticipated to occur on a site specific basis
as needed at the time industrial activities are proposed.
Within the adopted comprehensive plan, Future Land Use Element related to urban development areas and rural areas is found the general industrial land use classification.
The general industrial land use designations are located in the central area of the county to the southwest of the City of Jasper along County Road 249.
There is an additional limited industrial land use classification within the urban development area and rural area category. It identifies industrial opportunities at interchanges on Interstate 75. At these interchanges, upon submission of a site plan that comports with development standards, with due regard for safety and adequate access, light industrial development is allowed which does not require an air emission permit from the State of Florida.
Industrial land use designations as well as other land use designations were based upon an analysis of the amount and character of undeveloped land in the county, reliable population projections and growth patterns anticipated for the area, together with the availability of the public services to accommodate the projected population.
The adopted comprehensive plan includes a Future Land Use Map and Map Series found within the Future Land Use Element of the adopted plan which depicts industrial land use.
Intervenors' property carries a general industrial classification in the future land use designation in the adopted plan. Intervenors' property is not located on the Interstate 75 corridor and therefore would not be considered for this special industrial land use classification.
The North Central Florida Regional Planning Council (the Council) assisted the County in preparing its proposed and adopted plans.
The Council staff were engaged in that process as early as 1986. From that point forward the Council staff conducted field surveys relating to land use, compiled data from existing data sources and reviewed population projections and growth patterns in Hamilton County.
The Council staff compiled information concerning public facilities, recreational and solid waste facilities, information relating to physical capacity for those facilities and information concerning the financing of capital projects.
In anticipation of the requirements set forth in Section 163.3177(6)(a), Florida Statutes, the Council staff conducted field surveys of existing land use to determine the character of undeveloped land in the county. The staff reviewed the population projections of the University of Florida Bureau of Business and Economic Research. These activities were designed to assist the County in analyzing the amount of land necessary to accommodate projected growth and the availability of public services.
The Council staff was responsible for preparing the proposed plan statement related to goals, objectives, and policies. The staff also prepared the Future Land Use Plan Map.
The documents prepared by the Council staff were subject to review and workshops were held to consider those matters. Modifications were brought about through public comments presented at the workshops.
The Council staff prepared an evaluation, appraisal and review report to examine the success of previously adopted comprehensive plans.
Following the conduct of workshops the public sessions for plan adoption were held on June 18, and July 23, 1991.
As representative for the County, the Council staff invited the Department to send representatives to attend the public hearing sessions. The Department was represented at those sessions.
In the public hearings related to the plan adoption, there was considerable public testimony expressing concern about health and environmental impacts involved with the incineration of bio-medical waste. In particular, remarks were made about air emissions of mercury and dioxins and the disposal of ash residue from the incineration process.
Documents were also presented by members of the public who opposed waste incineration. One document was from the United States Environmental Protection Agency, entitled Seminar-Medical and Institutional Waste Incineration: Regulations, Management, Technology, Emissions and Operations. Another document was entitled Hazardous Waste News #82, June 20, 1988, identified as a weekly news and resource for citizens fighting toxins. A third document was entitled "Facts" related to definitions within Section 403.703, Florida Statutes and observations from the author of this document concerning Intervenors intended operations of a bio-medical incineration facility in Hamilton County. Finally, there was a document from the Hamilton County School Board calling for a buffer zone between any school in the county and facilities which incinerated or otherwise disposed of substances through incineration or other disposal means which would create air emissions from the destruction of solid waste, hazardous substances, bio-hazardous waste and biological waste as defined within Section 403.703, Florida Statutes. The Hamilton County School Board also expressed a desire to completely prohibit the incineration or other disposal of those substances which were generated outside Hamilton County.
The EPA document spoke in terms of the emissions from incinerators as being particulate and gaseous emissions. The particulate emissions being constituted of char and soot and minerals in the form of metals, silicates and salts.
The gaseous emissions referred to in the EPA document were constituted of combustible emissions such as hydrocarbons, carbon monoxide, PCDD and PCDF and noncombustible emissions, such as nitrogen oxides, HCLs, hazardous compounds such as POHCs, products of incomplete combustion such as dioxins, and uncondensed volatile metals in excess air.
Dr. Ralph Dougherty, an expert in environmental mass spectrometry, analytical chemistry and the chemistry of waste incineration, provided expert testimony concerning the significance of some of the information provided to the County in its public sessions. This testimony was presented at the administrative hearing. Dr. Dougherty did not attend the public hearing associated with the plan adoption.
Dr. Dougherty in addressing the waste stream that is created by bio- medical waste described how the incineration process in destroying polyvinyl chloride, PVC plastic, saran wrap and neoprene converted those materials to chlorinated organics such as dioxin.
As Dr. Dougherty established, dioxins are very hazardous substances.
Kenneth Krantz appeared for the Intervenors at the public sessions for the plan adoption. At that time Basic Energy Corporation was known as TSI Southeast, Inc. (TSI). He provided written information to the county commissioners concerning the TSI bio-medical waste disposal business intended to be located in Hamilton County.
TSI took no issue with Objective I.15 which was adopted on July 23, 1991. Intervenors proposed different text for policy I.15.1 and requested adoption of two additional policies I.15.2 and I.15.3 which would place some restrictions on solid waste disposal but would allow an opportunity for operating the TSI facility in the county.
Information provided by Krantz in the public sessions indicated that TSI intended to operate a business to incinerate solid, bio-medical and solid municipal waste, together with a waste recycling area, Pelletizer area and turbine-generator area.
Krantz addressed the county commissioners concerning county building permit information about the facility, permitting by the St. Johns River Water Management District and the State of Florida, Department of Environmental Regulation.
Information was provided concerning square footage for buildings within the overall TSI facility.
Information was provided by TSI concerning the intended pollution control systems as being constituted of fabric filters and dry-lime injection systems, together with a detailed description of pending permit applications before the Department of Environmental Regulation for additional incineration units.
Information provided by TSI addressed the expected constituents of the air emissions to include carbon monoxide, volatile organic compounds, nitrogen oxides, organics such as dioxide, sulphur dioxide, hydrogen chloride and particulate matter. A site location map and schematic showing the flow within the waste stream was also provided.
TSI also provided information at the public sessions about the Intervenors anticipated emissions rates for two previously permitted units and the third and fourth units that were being considered by the Department of Environmental Regulation. This data about emission rates included a comprehensive listing of anticipated emissions by pollutant type to include projected measurements of omissions for units one and two which would deal with medical waste combustion and units three and four which would deal with medical waste combustion and possibly refuse-derived fuel (RDF).
As commented on by members of the public who appeared at the public sessions for adopting the plan, information provided by the Intervenors verified that significant amounts of pollutants would be discharged into the air through Intervenors' operations.
TSI provided information concerning the modeling that was done to measure concentration levels for the expected pollutants. Information was provided concerning the incineration process and the manner in which calculations were made concerning expected emissions levels. Information was
provided concerning anticipated annual and short term emission rates for the four units intended to be operated by the TSI.
The technical information about the intended TSI facility was through documents that appeared to be from an engineering consulting firm.
All information provided in the public sessions that has been described was properly available to the county commissioners when adopting the plan. The information provided at the public sessions which has been described was not presented to the Department with the adopted plan.
As stated, on July 30, 1991, the County submitted its plan to the Department to determine if the adopted plan was in compliance with the requirements of law. See Section 163.3184(8), Florida Statutes (1991).
On September 12, 1991, DCA issued a notice of intent to find the adopted plan, not "in compliance". See Section 163.3184(10), Florida Statutes (1991). Pursuant to that provision, DCA filed a petition with the Division of Administrative Hearings setting forth the reasons for its decision to find the adopted plan not "in compliance". That petition was filed on September 23, 1991.
The DCA took no issue with Policies I.15.1 and V.2.13.
On February 20, 1992, Intervenors petitioned to intervene in the not "in compliance" case. As identified in the statement of issues, the Intervenors were and continue to be opposed to the adoption of Policies I.15.1 and V.2.13.
On March 17, 1992, an order was entered which granted the Intervenors leave to intervene.
Intervenors own property in Hamilton County.
As contemplated by Section 163.3184(16), Florida Statutes (1993), DCA and the County engaged in settlement discussions. This culminated in a stipulated settlement agreement executed by DCA and County on November 24, 1993. The stipulated settlement agreement is referred to in the statute as a compliance agreement. Intervenors did not join in the settlement.
On January 18, 1994, the County adopted the remedial amendments, referred to in the statute as plan amendments pursuant to a compliance agreement called for by the compliance agreement. The remedial plan amendments were submitted to the Department for consideration.
On March 10, 1994, DCA issued a cumulative notice of intent addressing the compliance agreement amendments and the plan. DCA gave notice that it attended to find the plan and remedial comprehensive plan amendments/compliance agreement amendments "in compliance" with Sections 163.3184 and 163.3187, Florida Statutes.
Notwithstanding that the Intervenors did not submit further pleadings within 21 days of the publication of the cumulative notice of intent, the Intervenors were allowed to proceed with their challenge to the plan that was not the subject of the compliance agreement leading to the compliance agreement amendments.
DISCUSSION
THE 60-DAY REVIEW REQUIREMENT PURSUANT TO SECTION 163.3184(7), FLORIDA STATUTES (1991)
Section 163.3184(7), Florida Statutes (1991), states: LOCAL GOVERNMENT REVIEW OF COMMENTS; ADOPTION
OF PLAN OR AMENDMENTS AND TRANSMITTAL.--The
local government shall review the written comments submitted to it by the state land planning agency, and any other person, agency, or government. Any comments, recommendations, or objections and any reply thereto shall be public documents, a part of the permanent record in the matter, and admissible in any proceeding
in which the comprehensive plan or plan amendment may be at issue. The local government, upon receipt of written comments from the state land planning agency, shall have 60 days to adopt or adopt with changes the proposed comprehensive plan or s. 163.3191 plan amendments. In the
case of comprehensive plan amendments other than those proposed pursuant to s. 163.3191, the local government shall have 60 days to adopt the amendment, adopt the amendment with changes, or determine that it will not adopt the amendment. . . .
Testimony was presented by Ms. Maria Abadal-Cahill, Growth Management Administrator for DCA. She identified the fact that DCA policy concerning the implementation of statutes is established by the DCA Secretary. Ms. Abadal- Cahill has working knowledge of those policies established by the Secretary.
DCA has been confronted on numerous occasions with local governments who have failed to adopt plans within 60 days of receipt of the ORC Report. Although DCA has never stated its intention to waive the 60-day requirement, it has routinely advised local governments who were late in adopting their plans, that DCA would not find the plan or plan amendment not "in compliance" based upon this tardiness.
As Ms. Abadal-Cahill describes, DCA recognizes that the imposition of the 60-day requirement presents problems to local governments. These problems are related to the need to give public notice of pending decisions on the plan or plan amendment, thus leaving local governments with only two or three weeks to respond to the DCA's objections to the proposed plan or plan amendment. The nature of the ORC Report may be such that much time is needed by the local government to respond to that report in adopting a plan or plan amendment.
As Ms. Abadal-Cahill describes, DCA has indicated to local governments that DCA is unaware of any express statutory penalty for failure to comply with the 60-day requirement for adopting a plan or plan amendment following receipt of the ORC Report. This is as contrasted with the possible penalties for a plan or plan amendment which has been ultimately found to be not "in compliance".
In practice the Department has found plan amendments that were submitted one year after receipt of the ORC Report "in compliance."
RELEVANT OBJECTIVE AND POLICIES
The special industrial land use designations for parcels at Interstate
75 interchanges are locations unrelated to the Intervenors' property and would allow activities unrelated to those activities contemplated by the Intervenors. In fact, the policy prohibits activities requiring air emissions permits from the State of Florida.
Likewise, the Policy I.3.1 in the Future Land Use general industrial category does not recognize the activities contemplated by the Intervenors' business. That business is waste incineration. Policy I.3.1 in the general industrial land use category authorizes manufacturing, assembly processing or storage of products. Those activities are separate from waste disposal by incineration.
Policy I.3.1 is associated with Objective I.3 in the category of urban development areas and rural areas and their future land uses in the county. Objective I.3 states:
The County shall include within the site plan review process to be adopted as part of the land development regulations, that adjacent land uses shall not be adversely impacted by any change in land use.
Within the category associated with Future Land Use that deals with urban development areas and rural areas is found Objective I.15. It describes the protection of residential areas from land uses which cause or would result in greater than average noise, hazards and/or odors. Thus, establishing potential prohibitions against the Intervenors' incineration business which might cause or result in greater than average noise, hazards or odors experienced by individuals in residential areas within the county.
To impose a more specific protection of residential areas, Policy I.15.1, associated with Objective I.15 prohibits medical, bio-hazardous, hazardous or solid wastes which are disposed of by incineration or by other methods that would produce air pollution emissions, which emissions are subject to permitting by the Department of Environmental Regulation within Hamilton County. The only exception to that opportunity for conducting such a business in residential areas would be for facilities permitted and otherwise legally sited and operated as of July 23, 1991. Intervenors' business falls within the general prohibition against location in a residential area.
Policy I.15.1 as it carries out objective I.15 is a specific reference to protection of residential areas from land uses that present greater than average noise, hazards or odors. It does not speak to the possibility that these facilities may be located in non-residential areas. Therefore, if these prohibited facilities had been allowed within the industrial land use category, having classified the Intervenors' property as industrial use then the activity might be acceptable. However, under the industrial land use category Intervenors' business is not acceptable because it does not involve manufacturing, assembly processing or storage of products.
The Conservation Element to the adopted plan has a goal to conserve, through appropriate use and protection, the resources of the County and to maintain the integrity of natural functions. Subordinate to that goal is
Objective V.2 that directs the County to include within its land development regulations, by 1992, provisions which would conserve, create appropriate uses of and protect the quantity of current and projected water sources, water recharge areas and potable water wells, as well as considering water quality.
Policy V.2.13 further defines conservation of, usage of and protection of the water resources. In some respects the policy is acceptable. In other respects it is not.
The prohibition against hazardous or bio-medical waste treatment facilities being located within environmentally sensitive areas designated within the comprehensive plan is clear in its statement and justified when taking into account the provisions of the adopted plan.
By contrast, while Policy V.2.13 speaks of land development regulations which would include conditions for approving hazardous and bio- medical waste treatment facilities as a special permit, there was no proof that such land development regulations have been adopted. Moreover the plan itself is devoid of any explanation of the manner in which special permits might be granted for locating hazardous and bio-medical waste treatment facilities in non-environmentally sensitive agricultural and rural areas of the county.
In summary, the Intervenors are afforded business opportunities for their property in accordance with the plan but they may not engage in waste incineration, to include bio-medical waste and RDFs.
With the exception of portions of Policy V.2.13 found to be unacceptable, the surveys, studies and data that support the previously discussed goals, policies, and objectives are sufficient. The Future Land Use Element and its particulars is based upon surveys, studies and data that are appropriate to the establishment of those uses when examining the goals, objectives and policies. All planning elements that have been discussed are based upon appropriate data concerning the goals and policies. No proof was established that the methodology for data collection was not professionally acceptable or that the data has been misapplied. The goals, objectives and policies are based upon relevant data that is the best available existing data.
OTHER DATA
In discussing whether the public comments and documents that were presented in the public sessions for plan adoption constitute data, it must be determined whether the information was taken from professionally acceptable existing sources such as the United States Census, State Data Center, State University System of Florida, Regional Planning Councils, Water Management Districts, or exiting technical studies. See Rule 9J-5.005(2)(c), Florida Administrative Code. The EPA document qualifies as data. The engineering information concerning the TSI facility as to the nature of the facility and its operation is also data. Other documents presented do not qualify as data. Nonetheless, it was appropriate for the county commissioners to consider all remarks and documents presented by the public in the public sessions for plan adoption. See Subsection 163.3184(7), Florida Statutes (1991).
The public commentary concerning waste incineration, such as bio- medical waste was intended and did inform the process; however, it did not constitute data with the exception of the EPA report on medical and institutional waste incineration and engineering information pertaining to the nature of Intervenors' intended facility.
OVERALL COMPLIANCE
The adopted plan, as amended, is consistent with Section 163.3177, Florida Statutes, related to the elements of the adopted plan; consistent with the State Comprehensive Plan as set forth in Chapter 187, Florida Statutes, and consistent with the North Central Florida Policy Plan, other than portions of Policy V.2.13.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over this subject matter and the parties to this proceeding in accordance with Section 120.57(1), Florida Statutes.
STANDING AND BURDEN OF PROOF
Intervenors are "affected persons" within the definitions set forth in Section 163.3184(1)(a), Florida Statutes (1991).
The cumulative notice of intent issued by DCA finding compliance agreement amendments and the Hamilton County Comprehensive Plan "in compliance" did not extinguish the Intervenors' challenge to the comprehensive plan unaffected by the compliance agreement amendments. It is the portion of the plan which is unaffected by the compliance agreement amendments that is the subject of this proceeding. See Section 163.3184(16), Florida Statutes (1993).
The opportunity to challenge that portion of the comprehensive plan which is not related to compliance agreement amendments does not require the filing of a separate petition consistent with Section 163.3184(9), Florida Statutes (1993). Intervenors are allowed to proceed based upon the allegations that were set forth in the petition to intervene as updated through the prehearing statement. The burden of proof for the Intervenors is as set forth in Section 163.3184(10), Florida Statutes (1993). That burden is by a preponderance of the evidence. See Department of Community Affairs, et al., Petitioner v. City of Jacksonville/Duval County, et al. Respondent, State of Florida, Division of Administrative Hearings, Case No. 90-7496GM. (Attached as Appendix "B")
AFFECT OF THE 60-DAY REQUIREMENT FOR ADOPTING THE COMPREHENSIVE PLAN;
SECTION 163.3184(7), Florida Statutes (1991)
The County did not adopt its comprehensive plan within 60 days of receipt of the written comments from DCA directed to the proposed plan. By its failure the County violated Section 163.3184(7), Florida Statutes (1991). That violation is not a jurisdictional matter that would cause the comprehensive plan to be rejected for that shortcoming.
No court precedent is available in deciding what significance the county's tardiness has. However, the court has addressed a somewhat related question as set forth in Section 163.3184(8)(b), Florida Statutes (1991), which requires the Department to publish a notice within 45 days to find a plan or plan amendment "in compliance" or not "in compliance". In Caliente Partnership
v. Johnston, 604 So.2d 886 (Fla. 2nd DCA 1992) the court reasoned as follows:
Although section 163.3184(8)(b) is indeed strongly worded, employing at all significant points the word "shall", it does not neces- sarily follow that Caliente should benefit
from departmental inaction. Explicit 'default' provisions, of which can be found in some other regulatory statutes, are absent from section 163.3184(8)(b). Furthermore, DCA's obligatory decision under the statute does not put an end to the compliance decision.
* * *
Subsection (8) does, in fact, prescribe the specific sanction of divestiture of DCA's authority to reject a plan or plan amendment. However, this occurs only when DCA fails to participate, despite a request from the affected local government, in the public hearing required by subsection (7).
Id. at 887-88.
That Caliente precedent was followed by the State of Florida, Third District Court of Appeal, where it summarily denied the City of Miami Beach's Petition for Writ of Prohibition against the Department of Community Affairs in the case City of Miami Beach v. Larry J. Sartin, et al., Case No. 94-02543 (Order dated November 2, 1994), where the Third District Court of appeal would not estop DCA from finding the City of Miami Beach comprehensive plan not "in compliance" based upon the failure to notice its compliance determination within
45 days in a newspaper which circulated within the jurisdiction of the local government.
By analogy Section 163.3184(7), Florida Statutes (1991) has no "default" penalty for failure to adopt a comprehensive plan within 60 days from receipt of written comment.
Practically speaking there are occasions when more than 60 days is needed to prepare to allow public participation in the adoption process, and to adopt or to deal with complex issues raised by the ORC Report.
While there may be occasions in which the Department or other "affected persons" may be able to demonstrate prejudice to their respective positions when the local government takes more than 60 days to adopt a plan or plan amendment following receipt of written comments, the Intervenors have not shown such prejudice and absent such prejudice may not cause the plan or its parts to be set aside for this procedural breach. See Schumacker v. Town of Jupiter, 643 So.2d 8 (Fla. 4th DCA).
ARE POLICIES I.15.1 AND V.2.13 IN COMPLIANCE WITH CHAPTERS 163 AND 187, FLORIDA STATUTES, (1991);
CHAPTER 9J-5, FLORIDA ADMINISTRATIVE CODE, AND THE NORTH CENTRAL FLORIDA REGIONAL POLICY PLAN?
The expectations in adopting the comprehensive plan are set forth in Section 163.3177, Florida Statutes (1991). In the overview, Section 163.3177 states:
The comprehensive plan shall consist of materials in such descriptive form, written or
graphic, as may be appropriate to the prescrip- tion of principles, guidelines, and standards for the orderly and balanced future economic, social, physical, environmental, and fiscal development of the area.
Coordination of the several elements of the local comprehensive plan shall be a major objective of the planning process. The several elements of the comprehensive plan shall be consistent, and the comprehensive plan shall
be economically feasible.
Among the elements that are mandatory, the comprehensive plan must contain a Future Land Use Element, which sets forth proposed future distribution, location and the extent that land will be used for residential, industrial, agricultural and conservation purposes, among other purposes. The Future Land Use Plan Element in those categories must be based upon surveys, studies and data about the area where the designations will be made, with due regard for anticipated growth, population, population projections, the character of undeveloped land, among other considerations. See Section 163.3177(6)(a), Florida Statutes (1991).
Other requirements are stated concerning the use of data to support the planning elements. Section 163.3177(8), Florida Statutes (1991) states:
All elements of the comprehensive plan, whether mandatory or optional, shall be based upon data appropriate to the element involved. Surveys and studies utilized
in the preparation of the comprehensive plan shall not be deemed a part of the comprehensive plan unless adopted as a part of it.
Data is addressed in the provision Section 163.3177(10)(e), Florida Statutes (1991), which states:
(e) It is the Legislature's intent that support data or summaries thereof shall not be subject to the compliance review process, but the Legis-
lature intends that goals and policies be clearly based on appropriate data. The department may utilize support data or summaries thereof to aid
in its determination of compliance and consistency. The Legislature intends that the department may evaluate the application of a methodology utilized in data collection or whether a particular meth- odology is professionally accepted. However, the department shall not evaluate whether one accepted methodology is better than another. Chapter 9J-5, F.A.C., shall not be construed to require original data collection by local governments; however, local governments are not to be discouraged from utilizing original data so long as methodologies are professionally accepted.
Further instructions are given concerning the issue of data and analysis in Rule 9J-5.005(2)(a)(b) and (c), Florida Administrative Code, which states:
(2) Data and Analyses Requirements.
All goals, objectives, policies, standards, findings and conclusions within
the comprehensive plan and its support documents shall be based upon relevant and appropriate data. Data or summaries thereof shall not be subject to the compliance review process.
However, the Department will review each comp- rehensive plan for the purpose of determining whether the plan is based on the data described in this Chapter and whether the data were collected and applied in a professionally acceptable manner. All tables, charts, graphs, maps, figures and data sources, and their limitations shall be clearly described where such data occur in the above documents.
This Chapter shall not be construed to require original data collection by local government; however, local governments are encouraged to utilize any original data necessary to update or refine the local government compre- hensive plan data base so long as methodologies are professionally accepted.
Data are to be taken from professionally accepted existing sources, such as the United States Census, State Data Center, State University System of Florida, regional planning councils, water management districts, or existing technical studies. The data used shall be the best available existing data, unless the local government desires original data or special studies. Where data augmentation, updates, or special studies or surveys are deemed necessary by local government,
appropriate methodologies shall be clearly described or referenced and shall meet professionally accepted standards for such methodologies.
As it pertains to this case, further instruction is given about the Conservation Element to the comprehensive plan, in Section 163.3177(6)(d), Florida Statutes (1991), which states:
A conservation element for the conservation, use, and protection of natural resources in the area, including air, water, water recharge areas, wet- lands, waterwells, estuarine marshes, soils, beaches, shores, flood plains, rivers, bays, lakes, harbors, forests, fisheries and wildlife, marine habitat, minerals, and other natural and environmental resources. Local governments
shall assess their current, as well as projected, water needs and sources for a 10-year period.
This information shall be submitted to the appropriate agencies. The land use map or map
series contained in the future land use element shall generally identify and depict the following:
Existing and planned waterwells and cones of influence where applicable.
* * *
Rivers, bays, lakes, flood plains, and harbors.
Wetlands.
* * *
Further there are requirements in Section 9J-5.013, Florida Administrative Code, which states:
Conservation Element. The purpose of this conservation element is to promote the conser- vation, use and protection of natural resources.
* * *
(2) Requirements for Conservation Goals, Objectives and Policies
* * *
(c) The element shall contain one or more policies for each objective which address implementation activities for the:
* * *
10. Management of hazardous wastes to protect natural resources.
To consider whether the subject policies are "in compliance" resort must not only be made to Section 163.3177, Florida Statutes (1991) and Chapter 9J-5, Florida Administrative Code, reference must also be made to other applicable provisions within Chapter 163, Part II and the State Comprehensive Plan, Chapter 187, Florida Statutes. See Section 163.3184(1)(b), Florida Statutes (1991).
Again the adopted plan in its Future Land Use Element has objectives and policies associated with urban development areas and rural areas. Objective
refers to residential areas be they urban or rural where it states:
Residential areas shall be protected from uses which cause or result in greater than average noise, hazards, or odors.
More specific protections related to those residential areas are announced in Policy I.15.1 which states:
No medical, bio-medical hazardous, hazardous, or solid waste shall be disposed of by incineration or by any other method which produces air pollution emissions subject to permitting by the Department of Environmental Regulation within Hamilton County, unless the use or facility was permitted and otherwise legally sited and operated as of July 23, 1991.
Appropriate surveys, studies, and data, professionally obtained and applied, that are the best available support the prohibition set forth in Policy
as it is designed to protect the residential areas in the urban and rural settings. That information to support Policy I.15.1 is found with the
supporting information that accompanied the adopted plan as reviewed by DCA, together with the supporting information that accompanied the proposed plan as carried over to the adopted plan.
Both Objective I.15 and Policy I.15.1 are internally consistent with each other, with other provisions within the adopted plan, with the State Comprehensive Plan and the North Central Florida Regional Policy Plan.
By contrast Policy V.2.13 is flawed. Again its language states: The County shall only allow hazardous and bio-
medical waste treatment facilities as special permits within areas designated agricultural
and located within the rural area of the County. Further, the County's land development regulations shall include conditions for such approval of a hazardous and bio-medical waste treatment facility as a special permit regarding the location, site design, buffer requirements, access to principal arterials and major intersections, requirements for appropriate public facilities, and require- ments which consider wind currents in relationship to population centers, which will direct any incinerated materials or noxious odors from these population centers. In no case shall a hazardous or bio-medical waste treatment facility be located
within an Environmentally Sensitive Area as designated within this Comprehensive Plan.
While it is appropriate to establish controls directed to enterprises which might undertake to treat hazardous bio-medical waste and in fact Rule 9J- 5.013(2)(c)10. Florida Administrative Code, directs the County to manage hazardous waste to protect natural resources, the manner in which Policy V.2.13 attempts to achieve those ends is unclear and incomplete. Therefore, it is inconsistent with the purposes set forth in Section 163.3177(6)(d), Florida Statutes (1991) and the aforementioned rule.
Policy V.2.13 on the one hand seems to prohibit hazardous or bio- medical waste treatment facilities from being located in environmentally sensitive areas as set forth in the comprehensive plan, but on the other hand it leaves open the possibility that these facilities might be placed in sufficient proximity to those area to create environmental problems, where the policy describes the allowance for the siting of those facilities in areas designated as agricultural and located within rural parts of the county subject to unspecified conditions in a special permit. The problem is not overcome by reference to the intention to have special permitting under terms of land development regulations which would address siting with more particularity. It is equally uncertain whether it is intended that permits may be granted prior to or only upon the adoption of the land development regulations which regulations would include more details concerning siting of such facilities. In any event, at the time the comprehensive plan was adopted there were no standards for issuing special permits. Without those standards it would be inappropriate to view Policy V.2.13 as creating the opportunity for the siting of hazardous or bio-medical waste treatment facilities in any part of the county.
In summary, Policy V.2.13 is not "in compliance" with applicable law, other than its prohibition against the location of hazardous or bio-medical
waste treatment facilities in environmentally sensitive areas designated within the comprehensive plan.
Based upon the findings of fact and the conclusions of law, it is, RECOMMENDED:
That a final order be entered finding the Hamilton County comprehensive plan to be "in compliance" with the exception that Policy V.2.13 is only "in compliance" in its latter sentence, the remaining language in Policy V.2.13 is not "in compliance".
DONE and ENTERED this 21st day of April, 1995, in Tallahassee, Florida.
CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 21st day of April, 1995.
APPENDIX "A" CASE NO. 91-6038GM
The following discussion is given concerning the proposed fact finding by the parties:
Intervenors' Facts:
Paragraph 1 is subordinate to facts found.
The first sentence to Paragraph 2 is contrary to facts found. The remaining sentence is subordinate to facts found.
Paragraph 3 is rejected in its suggestion that there is a perpetual ban on bio-hazardous waste incineration. It is otherwise not necessary to the resolution of the dispute.
Intervenors' Facts:
Paragraphs 1 through 7 are subordinate to facts found. Paragraph 8 is not relevant.
Paragraphs 9 through 12 are subordinate to facts found. Paragraph 13 is not necessary to the resolution of the dispute.
Paragraph 14 is subordinate to facts found with the exception that the date of adoption was January 18, 1994.
Paragraphs 15 through 22 are subordinate to facts found. Paragraph 23 is not relevant.
Paragraph 24 is subordinate to facts found.
Paragraph 25 constitutes legal argument. Paragraph 26 is subordinate to facts found.
Paragraphs 27 through 31 are not necessary to the resolution of the dispute.
Paragraphs 32 through 38 are subordinate to facts found.
Paragraphs 39 and 40 are not necessary to the resolution of the dispute.
Paragraph 41 is rejected to the extent that it is suggested that it constitutes agency policy.
Paragraphs 42 through the first phrase in 49 are subordinate to facts found. The latter phrase in Paragraph 49 is not necessary to the resolution of the dispute.
Paragraphs 50 through 58 are subordinate to facts found. Paragraph 59 constitutes legal argument.
Paragraphs 60 through 75 are subordinate to facts found.
Paragraphs 76 through 82 are rejected as not constituting allowable analysis of data presented in support of the plan adoption.
Paragraphs 83 and 84 are not necessary to the resolution of the dispute. Paragraph 85 is subordinate to facts found.
Paragraph 86 is not necessary to the resolution of the dispute.
Paragraphs 87 through 91 are rejected to the extent that it is suggested that some lesser standard is involved with consideration of data for optional plan elements as opposed to mandatory plan elements. See Section 163.3184(8), Florida Statutes (1991) and Section 120.57(1)(b)15, Florida Statutes (1993).
Paragraph 92 is acknowledged but did not form the basis for fact finding in the recommended order.
Paragraph 93 is rejected as intended to interpret Policy I.15.1 as an absolute prohibition against waste incineration in the County.
Paragraph 94 constitutes legal argument. Paragraphs 95 through 102 are not relevant.
Paragraphs 103 through 105 are not necessary to the resolution of the dispute.
Paragraphs 106 through 108 are subordinate to facts found with the exception of the rejection of Policy V.2.13 in part.
COPIES FURNISHED:
David L. Jordan, Esquire Terrell L. Arline, Esquire
Suzanne Schmith, Certified Legal Intern Department of Community Affairs
2740 Centerview Drive
Tallahassee, FL 32399-2100
John H. McCormick, Esquire Post Office Box O
Jasper, FL 32052
William L. Hyde, Esquire Gunster, Yoakley, Valdes-Fauli
and Stewart, P.A.
515 North Adams Street Tallahassee, FL 32301
Donald J. Schutz, Esquire Suite 415
535 Central Avenue
St. Petersburg, FL 33701
Linda L. Shelley, Secretary Department of Community Affairs 2740 Centerview Drive
Tallahassee, FL 32399-2100
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
APPENDIX "B"
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF COMMUNITY AFFAIRS, )
)
Petitioner, )
and )
) CASE NO. 90-7496GM SIERRA CLUB, INC., and BRIAN )
PARADISE; 1000 FRIENDS OF FLORIDA ) and STAN REIGGER; and ST. JOHNS ) RIVER PRESERVATION ASSOCIATION; ) SYBIL DAVIS, KATHERINE DEKLE, ) and JAMES A. ACREE, D.V.M., )
)
Intervenors, )
)
vs. )
)
CITY OF JACKSONVILLE/DUVAL )
COUNTY, )
)
Respondent. )
and )
)
NORTHEAST FLORIDA BUILDERS ) ASSOCIATION, INC., and RONALD W. ) FUSSEL; JACKSONVILLE BOARD OF ) REALTORS and CATHERINE B. )
WHATLEY; DDI INC., DANOV )
CORPORATION, SPANISH GRANT ) ESTATES, INC., and JAMES E. ) DAVIS, TRUST, )
)
Intervenors. )
)
ORDER
The Department of Community Affairs published a cumulative notice of intent to find the Duval County/City of Jacksonville Comprehensive Plan and remedial Comprehensive Plan amendments in compliance through DCA Docket No. 93R1-NOI- 1601-(A)-(I).
Following that notice Petitioner moved to relinquish jurisdiction to the Administration Commission for entry of a final order consistent with the settlement stipulation between Petitioner and Respondent. That motion was filed March 11, 1993.
The City of Jacksonville/Duval County, DDI, Inc., Danov Corporation, Estuary Corporation, Spanish Grant Estates, Inc. and James E. Davis Trust support the motion. Sierra Club, Brian Paradise, 1000 Friends of Florida, Stan Reigger, Sybil Davis and Katherine Dekle oppose the motion.
In reviewing the motion to relinquish jurisdiction and in view of the opposition to the motion, it does not appear that any Intervenors to this cause joined in the stipulated settlement between the Department and local government or that all Intervenors support the stipulated settlement between the governmental parties such that the case could be dismissed without further action. The representation within the motion to the effect that no disputed issues of material fact exist between the Department and local government does not respond to the position held by all Intervenors concerning disputes over issues of material fact that need to be resolved.
In ruling on the motion, case disposition following issuance of the cumulative notice of intent which addressed both the compliance agreement amendments and the plan that was the subject of the compliance agreement is controlled by Section 163.3184(16)(f), Florida Statutes (Supp. 1992).
Preliminarily, as related in 163.3184(16)(a), Florida Statutes (Supp.
1992), Petitioner and Respondent may enter into a settlement in this case where a notice of intent to find the comprehensive plan not in compliance has been provided. This arrangement is one which is designed to resolve the differences between the governmental parties in part or in whole consistent with the language within 163.3184(16)(a), which states:
The state land planning agency and the
local government may voluntarily enter into a compliance agreement to resolve one or more of the issues raised in the proceedings.
It goes on to say:
Affected persons who have initiated a formal proceeding or who have intervened in a formal proceeding may also enter into the compliance agreement. . . .
Those affected persons, the Intervenors here, are not essential participants in the agreement entered into between the Petitioner and Respondent which reconciled the differences between the governmental parties. The issues addressed by the compliance agreement entered into by the Petitioner and Respondent have been foreclosed from consideration save the opportunities that are subsequently described in this order. That means that Intervenors who had common issues raised in the proceedings when compared to those issues resolved by the compliance agreement entered into between the governmental parties may only advance those common issues in the manner that will be set forth. Other issues raised by the Intervenors which have not been addressed by the compliance agreement entered into between the governmental parties are not extinguished and remain pending in the Section 120.5, Florida Statutes, proceeding as they had been pled in the petitions for intervention.
The present case had been stayed before the Division of Administrative Hearings upon the filing of the compliance agreement executed by the Petitioner and Respondent. See 163.3184(16)(b)1 Florida Statutes (Supp. 1992). Now that the terms of the compliance agreement have been met, the case shall proceed in accordance with the scheme contemplated by Section 163.3184(16), Florida Statutes (Supp. 1992), in its various provisions.
The Petitioner received the plan amendments adopted pursuant to the compliance agreement and issued the cumulative notice of intent addressing the compliance agreement amendments and the Comprehensive Plan, the portion of the plan unaffected by the compliance agreement. This action by the Petitioner was in accordance with 163.3184(16)(e), Florida Statutes (Supp. 1992).
Specific action to be taken following issuance of the cumulative notice of intent is described in 163.3184(16)(f), Florida Statutes (Supp. 1992). To begin with it states:
If the local government adopts a comprehensive plan amendment pursuant to a compliance agreement and a notice of intent to find the clan amendment in compliance is issued, the state land planning agency shall forward the notice of intent to the Division of Administrative Hearings and the pending
s.120.57 proceeding concerning the plan or plan amendment shall be dismissed by the hearing officer as to the Department.
The City of Jacksonville/Duval County adopted comprehensive plan amendments pursuant to the compliance agreement. The notice of intent issued finds the plan amendments adopted pursuant to the compliance agreement in compliance.
Therefore, the Department is dismissed as a party to the pending proceeding to consider those issues raised by the Intervenors directed to the Comprehensive Plan unaffected by the amendments brought about through the compliance agreement entered into between the governmental parties.
Consideration of those issues framed by the Intervenors related to the Comprehensive Plan in the portions unaffected by the amendments made pursuant to the compliance agreement between the governmental parties is in furtherance of the pending proceeding which started under the process contemplated by 163.3184(10), Florida Statutes (Supp. 1992), dealing with the plan not in compliance. Thus, these issues shall be presented in accordance with the burden of proof contemplated by 163.3184(10).
Affected persons other than the Intervenors who wish to challenge the Comprehensive Plan which is unaffected by the amendment brought about by the compliance agreement may do so in accordance with 163.3184(16)(f), where it states:
. . . Any affected person may challenge the plan or plan amendment which is the subject of the cumulative notice of intent by filing a petition with the agency as provided in subsection (9) . . .
This means that with the advent of any additional petitions to challenge that portion of the Comprehensive Plan unaffected by the amendments brought about pursuant to the compliance agreement, those petitions would be considered consistent with the burden of proof contemplated by Section 163.3184(9) Florida Statutes (Supp. 1992). Should such petitions be forthcoming, they would be consolidated for hearing with the existing issues raised by the present Intervenors unaffected by the amendments pursuant to the compliance agreement between the governmental parties.
In addition, affected persons who are not involved with the underlying Section 120.5 proceeding related to that portion of the Comprehensive Plan unaffected by the amendments pursuant to the compliance agreement may challenge those amendments made pursuant to the compliance agreement by petitioning and by proof consistent with the burden of proof announced at 163.3184(9). This Interpretation is made in accordance with that language within 163.3184(16)(f) which states:
. . . Affected persons who are not a party to the underlying s. 120.5 proceeding may challenge the plan amendment adopted pursuant to the compliance agreement pursuant to subsection (9) or subsection (10).
Reference to subsection (10) is not appropriate in that the Department found the plan amendments adopted pursuant to the compliance agreement "in compliance."
Although no specific statutory reference is made to the rights and opportunities for the present Intervenors to address the issues raised by the Department and resolved by the compliance agreement and plan amendments adopted pursuant to that compliance agreement, which settled the differences between the governmental parties, the Intervenors are nonetheless held to have those rights and opportunities To the extent that the Intervenors do not agree with those amendments made pursuant to the compliance agreement between the governmental parties, the present Intervenors may amend their pleadings related to the underlying Section 120.5 proceeding dealing with the portion of the Comprehensive Plan unaffected by the compliance agreement to add challenges to amendments adopted pursuant to the compliance agreement. The burden of proof associated with challenges made by the Intervenors to the plan amendments adopted pursuant to the compliance agreement would be in accordance with 163.3184(9).
Upon consideration of the foregoing, the motion to relinquish jurisdiction is DENIED.
Within forty (40) days from the date upon which this order was entered the parties shall confer and discuss the remaining issues to be litigated, the number of days necessary to conduct the hearing, to include possible participation by other affected persons not presently parties to this action, as identified by the Petitioner and dates upon which the parties would be available for hearing in July and August, 1993. On the fortieth day, if not before, Petitioner shall file a written report indicating the number of days needed for hearing, dates upon which the parties would be available for hearing In July and August, 1993, and a statement of issues identifying the party who has asserted those issues and whether the issues concern the amendments adopted pursuant to the compliance agreement or the Comprehensive Plan unaffected by the compliance agreement. Upon receipt of that information a hearing shall be noticed.
DONE and ORDERED this 2nd day of April, 1993.
CHARLES C. ADAMS
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 2nd day of April, 1993.
COPIES FURNISHED:
For the Department of Community Affairs: Kenneth D. Goldberg, Esquire
Sherry A. Spiers, Esquire Michael P. Donaldson, Esquire Department of Community Affairs 2740 Centerview Drive
Tallahassee, Florida 32399-2100
For Sierra Club, Inc.:
James A. Heard, Esquire 2902 Independent Square
Jacksonville, Florida 32202
For Brian Paradise:
William Lon Allworth, Esquire 1301 Gulf Life Drive
Suite 200
Jacksonville, Florida 32207
For 1000 Friends of Florida and Stan Reigger:
Richard Grosso, Esquire Jaimie A. Ross, Esquire 1000 Friends of Florida
P. O. Box 5948
Tallahassee, Florida 32314
David L. Jordan, Esquire Terrell L. Arline, Esquire
Suzanne Schmith, Certified Legal Intern Department of Community Affairs
2740 Centerview Drive
Tallahassee, Florida 32399-2100
John H. McCormick, Esquire Post Office Box 0
Jasper, Florida 32052
William L. Hyde, Esquire Gunster, Yoakley, Valdes-Fauli and Stewart, P.A.
515 North Adams Street Tallahassee, Florida 32301
Donald J. Schutz, Esquire Suite 415
535 Central Avenue
St. Petersburg, Florida 33701
Linda L. Shelley, Secretary Department of Community Affairs 2740 Centerview Drive
Tallahassee, Florida 32399-2100
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
================================================================= AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA ADMINISTRATION COMMISSION
DEPARTMENT OF COMMUNITY AFFAIRS,
Petitioner,
and
BASIC ENERGY CORPORATION and AC CASE NO. ACC-95-016 KENNETH AND JANICE KRANTZ, DOAH CASE NO. 91-6038GM
FINAL ORDER NO. AC-95-025
Intervenor,
vs.
HAMILTON COUNTY,
Respondent.
/
FINAL ORDER
This cause came before the Governor and Cabinet, sitting as the Administration Commission ("Commission") on August 8, 1995, in Tallahassee, Florida, pursuant to Section 163.3184(9)(b), Florida Statutes, for final agency action after the receipt of a recommended order from the Division of Administrative Hearings and submission of a Determination of Noncompliance by the Department of Community Affairs, (the "Department").
The Department published its notice on September 12, 1991, that the newly adopted Hamilton County comprehensive plan was not in compliance with the Local Government Comprehensive Planning and Land Development Regulation Act, (the "Act"). At that time, intervenors Basic Energy Corporation, (under the name TSI Southeast), and Janice A. and Kenneth R. Krantz, filed their petition challenging the plan. The Department and the County subsequently entered into a settlement agreement to which intervenors were not parties. The County adopted remedial amendments pursuant to the settlement agreement and on May 10, 1994, the Department published a cumulative notice of intent to find the comprehensive plan and remedial amendments "in compliance" with the Act. Meanwhile the intervenors were proceeding to final hearing which occurred on December 6 and 7, 1994. The hearing officer issued a recommended order which found that a portion of Policy V.2.13 of the plan be found not "in compliance" with the Act.
The portion of Policy V.2.13 found by the hearing officer to be not "in compliance," states:
The County shall only allow hazardous and biomedical waste treatment facilities as special permits within areas designated agricultural and located within the rural area of the County. Further, the County's land development regulations shall include conditions for such approval of a hazardous and biomedical waste treatment facility as a special permit regarding the location, site design, buffer requirements, access to principle arterials and major intersections, requirements for appropriate public facilities, and requirements which consider wind currents in relationship to population centers, which will direct any incinerated materials or noxious odors from these population centers.
The hearing officer concluded that while the Act would direct the County to manage hazardous waste to protect natural resources, he found the stated provisions of that policy to be unclear and incomplete. Therefore, he found that the policy is inconsistent with Section 163.3177(6)(d), Florida Statutes, and Rule 9J-5, Florida Administrative Code.
The Commission adopts the recommended order except as further specified herein, and finds the Hamilton County Comprehensive Plan to be not "in compliance" with the act due to that portion of Policy V.2.13 quoted above.
The Commission finds that the intervenor's first exception is well taken and determines that the record does not limit the application of Policy I.15.1 to residential areas. Intervenors exception 1 is granted. All other exceptions filed by the parties are denied.
Under the provisions of the Act, the Commission shall specify the actions which are available to bring the plan into compliance. The department provided its recommendation that striking that portion of Policy V.2.13 found to be unclear and incomplete would bring the plan into compliance. We adopt that remediation, and determine that sanctions are not appropriate.
Any party to this order has the right to seek judicial review of the order pursuant to Section 120.68, F.S., by the Rules of Appellate Procedure, with the Clerk of the Commission, Office of Planning and Budgeting, Executive Office of the Governor, Room 2105, The Capitol, Tallahassee, Florida 32399-0001; and by filing a copy of the Notice of Appeal, accompanied by the applicable filing fees, with the appropriate District Court of Appeal. Notice of Appeal must be filed within thirty (30) days of the day this order is filed with the Clerk of the Commission.
DONE and ORDERED this 9th day of August, 1995.
Teresa B. Tinker for
ROBERT B. BRADLEY, Secretary Administration Commission
FILED with the Clerk of the Administration Commission this 9th day of August, 1995.
Patricia A. Parker Clerk, Administration Commission
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was delivered to the following persons by United States mail or hand delivery this 9th day of August, 1995.
Teresa B. Tinker for
ROBERT B. BRADLEY, Secretary Administration Commission
Honorable Lawton Chiles Honorable Sandra Mortham
Governor Secretary of State
The Capitol The Capitol
Tallahassee, Florida 32399 Tallahassee, Florida 32399
Honorable Bob Milligan Honorable Bill Nelson
Comptroller Insurance Commissioner
The Capitol The Capitol
Tallahassee, Florida 32399 Tallahassee, Florida 32399
Honorable Bob Butterworth Honorable Frank Brogan Attorney General Commissioner of Education
The Capitol The Capitol
Tallahassee, Florida 32399 Tallahassee, Florida 32399
Honorable Bob Crawford Greg Smith, Esquire Commissioner of Agriculture Counsel to Governor & Cabinet The Capitol The Capitol, Room 209 Tallahassee, Florida 32399 Tallahassee, Florida 32399
Suzanne Schmith, Esquire David J. Schutz, Esquire Department of Community Affairs 535 Central Avenue
2740 Centerview Drive Suite 415
Tallahassee, Florida 32399-2100 St. Petersburg, Florida 33701
Charles C. Adams William L. Hyde, Esquire
Hearing Officer Gunster, Yoakley, Valdes-Fauli Division of Administrative and Stewart, P.A.
Hearings 515 North Adams Street
The DeSoto Building Tallahassee, Florida 32301 1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
| Issue Date | Proceedings |
|---|---|
| Aug. 09, 1995 | Final Order filed. |
| Aug. 01, 1995 | Notice of Commission Meeting (from Robert Bradley) filed. |
| Jul. 27, 1995 | (Robert B. Bradley) Notice of Commission Meeting (Unsigned) filed. |
| Apr. 21, 1995 | Recommended Order sent out. CASE CLOSED. Hearing held December 6 and 7, 1994. |
| Feb. 15, 1995 | Hamilton County`s and Department of Community Affairs` Joint Proposed Recommended Order (For Hearing Officer Signature) filed. |
| Feb. 14, 1995 | Certificate of Service of Intervenor`s Proposed Findings of Fact Conclusions of Law (For Hearing Officer Signature); Intervenors Proposed Findings of Fact and Conclusions of Law w/cover letter filed. |
| Feb. 08, 1995 | Order sent out. (motion denied) |
| Feb. 08, 1995 | Order sent out. (motion denied) |
| Jan. 24, 1995 | Joint Motion for Extension of Time in Which to Filed Proposed Recommended Orders; Addendum to Hamilton County`s Motion to Supplement and/or Reopen the Record w/cover letter filed. |
| Jan. 23, 1995 | Transcripts (Volumes I, II, tagged); Exhibits filed. |
| Jan. 23, 1995 | Department of Community Affairs' Response in Support of Hamilton County's Motion to Supplement and/or Reopen the Record filed. |
| Jan. 11, 1995 | Hamilton County`s Notice of Filing Deposition Transcript of Kenneth R. Krantz and Motion to Supplement and/or Reopen the Record; Telephone conference of Deposition of Kenneth R. Krantz ; Affidavit to File without Signature filed. |
| Dec. 06, 1994 | CASE STATUS: Hearing Held. |
| Dec. 02, 1994 | Intervenor's List of Exhibits with cover letter filed. |
| Dec. 01, 1994 | (Joint) Prehearing Stipulation; Cover Letter filed. |
| Nov. 29, 1994 | Order Designating Location of Hearing sent out. (hearing set for 12/6/94; 10:00am; Jasper) |
| Nov. 17, 1994 | Hamilton County's Notice of Service of Answers to Intervenor's First Interrogatories; Notice of Change of Address filed. |
| Nov. 14, 1994 | Letter to DRA from D. Schutz (RE: ruling on motion in Limine) filed. |
| Nov. 12, 1994 | Letter to DRA from W. Hyde (Re: request for order on motion in Limine) filed. |
| Nov. 08, 1994 | Order sent out. (motion in Limine is granted) |
| Nov. 04, 1994 | Basic Energy, Kenneth R. Krantz, and Janice Drantz Answer to First Set of Interrogs. Filed by Respondent Hamilton County filed. |
| Oct. 24, 1994 | Department of Community Affairs` Response in support of Hamilton County`s motion in Limine filed. |
| Oct. 17, 1994 | Order sent out. (hearing rescheduled for 12/6/94; 10:00am) |
| Oct. 17, 1994 | Hamilton County's Motion In Limine (unsigned) filed. |
| Oct. 13, 1994 | Order sent out. (hearing date 10/20/94;10:00AM;Jasper) |
| Aug. 22, 1994 | Notice of Service of Interrogatories; Request for Production of Documents filed. (From William L. Hyde) |
| Jun. 16, 1994 | Second Notice of Hearing sent out. (hearing set for 10/20/94, 10:00 A.M., Jasper, 10/21/94 is also reserved if necessary) |
| Jun. 16, 1994 | Respondent Hamilton County`s Motion to Dismiss/Strike Basic Energy Corporation and Kenneth R. Krantz and Janice A. Krantz as Parties to This Proceeding w/Exhibits filed. |
| Jun. 15, 1994 | (Petitioner) Status Report filed. |
| Jun. 15, 1994 | (Petitioner) Status Report filed. |
| Jun. 13, 1994 | Notice of Substitution of Counsel for Department of Community Affairs filed. |
| May 18, 1994 | Order sent out. (Petitioner's motion to dismiss denied) |
| May 05, 1994 | (Petitioner) Motion to Dismiss Formal Proceeding filed. |
| Feb. 17, 1994 | Order sent out. (Case held in Abeyance; Parties to file status report by 5/2/94) |
| Dec. 02, 1993 | Order sent out. (Parties to file status report by 2/4/94) |
| Nov. 30, 1993 | Joint Motion for Abatement of Proceedings and Notice of Filing Stipulated Settlement Agreement w/Stipulated Settlement Agreement filed. |
| Oct. 27, 1993 | Notice of Intent to Pursue Constitutional Remedies Pursuant to Jennings V.Caddo Parish School Board 531 F. 2D 1331 (5th Cir. 1976); Status Report of Intervenors filed. |
| Oct. 19, 1993 | Order sent out. (Parties to file status report by 1/19/94) |
| Oct. 18, 1993 | (Petitioner) Status Report filed. |
| Aug. 25, 1993 | CC Letter to Kenneth R. Krantz from Ross A. McVoy (re: Removing Name from certificate of service) filed. |
| Aug. 23, 1993 | Notice of Name Change and Change in Address filed. (From Kenneth R. Krantz) |
| Jul. 22, 1993 | Order sent out. (status report due 10/15/93) |
| Jul. 15, 1993 | (Petitioner) Status Report filed. |
| May 19, 1993 | Order sent out. (Parties to file status report by 7-16-93) |
| May 13, 1993 | Status Report filed. |
| Feb. 16, 1993 | Order sent out. (Parties to file status report by 5-14-93) |
| Feb. 09, 1993 | (Petitioner) Status Report filed. |
| Feb. 05, 1993 | Notice of Substitution of Counsel For Department of Community Affairs filed. |
| Dec. 28, 1992 | Order sent out. (motion granted; firm of Fine, Jacobson, Schwartz, Nash and Block is relieved of their responsibilities as counsel to the named parties) |
| Dec. 07, 1992 | Motion to Withdraw w/(unsigned) Order filed. (From Ross A. McVoy) |
| Nov. 30, 1992 | (DCA) Status Report filed. |
| Nov. 06, 1992 | Order sent out. (Parties to file status report by 11-30-92) |
| Oct. 29, 1992 | (Hamilton County) Status Report & Cover Letter from W. Hyde filed. |
| Sep. 11, 1992 | Order sent out. (Ruden, Barnett, McClosky, Smith, Schuster and Russel, has moved to withdraw as co-counsel for TSI Southeast, Inc; motion unopposed and is granted) |
| Aug. 10, 1992 | Motion to Withdraw filed. (From Mary F. Smallwood) |
| Jul. 23, 1992 | Order Denying Request For Indefinite Continuance sent out. (hearing date to be rescheduled at a later date; parties to file status report by 9-25-92) |
| Jul. 10, 1992 | (Respondent) Status Report & cover Letter filed. |
| Jul. 08, 1992 | Status Report filed. (From Mary F Smallwood) |
| Jun. 05, 1992 | Respondent Hamilton County`s Notice of Service of Answers to Intervenors` First Interrogatories filed. |
| May 14, 1992 | Subpoena Duces Tecum (5) filed. (Ross McVoy) |
| May 14, 1992 | Subpoena Duces Tecum w/Return of Service (3) filed. (From Ross A. McVoy) |
| May 13, 1992 | Order sent out. (motion of intervenors for a prehearing conference, filed 5-6-92 is denied) |
| May 13, 1992 | Order Granting Continuance sent out. (hearing date to be rescheduled at a later date; parties to file status report by 7-8-92) |
| May 11, 1992 | Letter to Kenneth D. Goldberg from Ross A. McVoy (re: rescheduling depositions) filed. |
| May 08, 1992 | (Respondent) Stipulated Motion for Continuance of Final Hearing filed. |
| May 06, 1992 | Intervenors, TSI Southeast, Inc. and Kenneth R. Krantz and Janice A. Krantz's Motion for Prehearing Conference filed. |
| May 05, 1992 | Motion to Expedite Answering of Interrogatories Propounded to Department of Community Affairs and Hamilton County; Subpoena Duces Tecum (5)filed. |
| May 05, 1992 | (Intervenor) Notice of Taking Depositions Ad Testificandum filed. |
| May 01, 1992 | (Intervenors) Notice of Taking Deposition Duces Tecum filed. |
| Apr. 29, 1992 | (Intervenors) Notice of Taking Deposition Duces Tecum filed. |
| Apr. 20, 1992 | Notice of Appearance filed. (From Mary F. Smallwood) |
| Apr. 16, 1992 | (TSI SE, Inc) Notice of Certificate of Service of Interrogatories (2)filed. |
| Mar. 17, 1992 | Order Granting Petition To Intervene sent out. (Petition of TSI Southeast Inc., Kenneth R. Krantz and Janice A. Krantz) |
| Feb. 20, 1992 | (TSI Southeast, Inc. et al) Petition to Intervene in Determination of Non-Compliance of Hamilton County Comprehensive Plan w/Composite Exhibit-A filed. |
| Nov. 06, 1991 | Notice of Hearing sent out. (hearing set for May 26-29, 1992; 9:00am; Jasper). |
| Oct. 23, 1991 | Letter to DWD from William L. Hyde (re: scheduling hearing) filed. |
| Oct. 14, 1991 | Initial Order issued. |
| Sep. 26, 1991 | Notification card sent out. |
| Sep. 23, 1991 | Petition of the Department of Community Affairs; Notice of Intent; Statement of Intent to Find Comprehensive Plan Amendments Not in Compliance filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Aug. 09, 1995 | Agency Final Order | |
| Apr. 21, 1995 | Recommended Order | Policy allowing special permits for hazardous waste disposal is not in compliance. |
