STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: Lauderdale Repowering ) Project, Power Plant Site )

Certification Application, ) CASE NO. 89-6636EPP Florida Power & Light Company, )

PA89-26. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a land use hearing in the above-styled case on March 13, 1990, in Ft. Lauderdale, Florida.

APPEARANCES

For Florida Power & Peter C. Cunningham, Esquire Light Company: Douglas S. Roberts, Esquire

Hopping Boyd Green & Sams Post Office Box 6526 Tallahassee, Florida 32314

For the Department Hamilton S. Oven, Jr., P.E. Of Environmental Administrator

Regulation: 2600 Blair Stone Road Tallahassee, Florida 32399-2400

For the Department Steven Pfeiffer, Esquire of Community Affairs: General Counsel

2740 Centerview Drive

Tallahassee, Florida 32399

For Broward County: Noel M. Pfeffer, Esquire

Deputy County Attorney Governmental Center, Suite 423

115 S. Andrews Avenue

Fort Lauderdale, Florida 33301 STATEMENT OF THE ISSUES

Whether the proposed site of the Lauderdale Repowering Project is consistent and in compliance with existing land use plans and zoning ordinances.

PRELIMINARY STATEMENT

On November 29, 1989, Florida Power and Light Company (FPL) filed an application for power plant certification for the repowering of two existing generating units at FPL's Lauderdale Plant Site (the "Project"). This application was filed pursuant to the Florida Electrical Power Plant Siting Act, Sections 403.501-403.519, Florida Statutes. The statutory scheme calls for both this land use hearing and a certification hearing, which will be held later.

Section 403.508, Florida Statutes.

At the hearing, FPL called Charles D. Henderson, an employee of FPL, and Richard Zwolak, who was accepted as an expert witness in planning, particularly land use planning and zoning. FPL offered FPL Exhibits 1 through 15, which were received into evidence.

The Department of Environmental Regulation (DER) called no witnesses, but did offer DER Composite Exhibit 1, which was received into evidence. Broward County, which timely filed a notice of intent to be a party to these proceedings, called no witnesses and offered no exhibits. The Department of Community Affairs (DCA) called no witnesses and offered no exhibits. The Public Service Commission and the South Florida Water Management District, both parties to this proceeding, did not appear at this land use hearing.

A transcript of the proceedings has been filed. All of the proposed findings of fact contained in the Joint Proposed Recommended Order of Florida Power and Light Company, Department of Environmental Regulation, Department of Community Affairs, and Broward County have been adopted in material part by this Recommended Order. No other post-hearing submittals were filed.

FINDINGS OF FACT

1. The Department of Environmental Regulation published notices of this land hearing on January 25, 1990, in the Miami Herald and on January 26, 1990, in the Ft. Lauderdale Sun-Sentinel and the Ft. Lauderdale News. Notice of this hearing was also published in the Florida Administrative Weekly on February 2, 1990. The DER mailed notice of this hearing to the chief executives of the local and regional authorities with responsibility for zoning and land use planning whose jurisdiction includes the site. The Applicant, FPL, posted notices of this hearing at the proposed site.

   
   

   The Lauderdale Repowering Project

   
   

2. FPL submitted an application for site certification for the Lauderdale Repowering Project which was filed with DER on November 29, 1989. The application was determined complete by DER on December 13, 1989.

   
   

3. The project will involve the "repowering' of existing Units 4 and 5 at FPL's Lauderdale Plant Site, resulting in the replacement of the unit's steam generators with new combustion turbines and heat recovery steam generators. The project will increase the net generating capacity at the site by approximately 680 megawatts. The existing 24 gas turbines at the Lauderdale Site will be unaffected by the Repowering Project.

   
   

4. In addition, new water and wastewater treatment facilities and stormwater runoff ponds will be constructed as part of the project. The tallest structures on site will be the 150 foot tall stacks associated with the new hear recovery steam generators. No principal structure will be constructed closer than 25 feet from the site's south boundary along the Dania Cutoff Canal.

   The Site

   
   

5. The site for the proposed Lauderdale Repowering Project is a previously-developed, 392-acre parcel of land in southeastern Broward County.

   An adjacent ten-acre parcel will be utilized temporarily during construction for parking and equipment laydown. The site lies about 1 mile east of the Florida Turnpike and 1 mile west of Interstate 95. State Road 84 and Interstate 595 are

   north of the site. Griffin Road is about one-half mile south off the site. The site is bounded on the north and west by the South New River Canal and on the south by the Dania Cutoff Canal.

   
   

6. The site has been utilized for the generation of electricity since the 1920's. Current use of the site consists of two fossil-fuel-fired steam generating units (which will be repowered) and 24 gas turbine units. The total net generating capacity of the existing Lauderdale Plant is 1,248 megawatts. Consistency of the Site with Local Land Use Plans and Zoning

   Ordinances

   
   

7. The site was located entirely within the unincorporated area of Broward County on the dates the application was filed and determined complete. A small portion of the southeast corner of the site was annexed into the City of Hollywood, Florida in December, 1989 but subsequent to the submittal of the Site Certification Application. The applicable land use plans and zoning ordinances are those adopted by Broward County in effect as of the date of the application. Since the annexation occurred after the application was filed and determined complete, the land use plans and zoning ordinances for the City of Hollywood cannot be considered as part of this land use hearing. The City of Hollywood does not have land use designations or zoning classifications assigned to the portion of the site that has been annexed into the City of Hollywood.

   
   

8. The land use plan that governs the Lauderdale Site for purposed of this hearing is the Future Unincorporated Area Land Use Element of the Broward County Board of County Commissioners on March 1, 1989, and its accompanying map. The applicable zoning regulations are Broward County's Zoning Ordinance as codified in Chapter 39 of the Code of Broward County.

   
   

9. The entire proposed site for the project is designated as either Utility or as Industrial under the Future Unincorporated Area Land Use Element and its accompanying map. Electrical power plants, such as that proposed by FPL, are uses permitted in both the Utility and Industrial designations under the Future Unincorporated Area Land Use Element. The site is also consistent with location-oriented objectives and policies of the Future Unincorporated Area Land Use Element concerning Utility and Industrial designations.

   
   

10. The site is similarly designated for utility and industrial uses under the Broward County Land Use Plan. The Broward County Land Use Plan was prepared as a guide in the preparation of the Future Unincorporated Area Land Use Element. The Broward County Planning Council has certified the Future Unincorporated Area Land Use Element as the effective land use plan for the unincorporated areas of Broward County.

    
    

11. The site is zoned M-3 under the Broward County Zoning Ordinance, which is the general industrial zoning district permitting a variety of industrial uses. Electrical power plants are a permitted use within the M-3 zoning district as electrical power plants are not prohibited by Section 39-1073 of the Broward County Zoning Code; are not otherwise prohibited by other resolutions or by law; and are not listed as permissible only in an M-4 or an M-5 zoning district.

    
    

12. The DER, the DCA, and Broward County concur that the location of the Lauderdale Repowering Project at the Lauderdale Site is consistent and in compliance with existing land use plans and zoning ordinances.

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Sections 120.57(1) and 403.508(1), Florida Statutes.

    
    

14. The sole issue for determination at the land use hearing shall be whether or not the proposed site is consistent and in compliance with existing land use plans and zoning ordinances. The designated hearing officer's recommended order shall be issued within 30 days of completion of the hearing and shall be reviewed by the board within 45 days of receipt of the recommended order by the board.

    
    

    Section 403.508(2), Florida Statutes provides, in pertinent part, a as follows:

    
    

15. As used in Section 403.508, Florida Statutes, the term "board" means the Governor and Cabinet sitting as the Siting Board. See Section 403.503, Florida Statutes.

    
    

16. The applicable land use plans and zoning ordinances are those adopted by Broward County in effect as of the date of the application. The land use plan that governs the Lauderdale Site for purposes of this hearing is the Future Unincorporated Area Land Use Element of the Broward County Comprehensive Plan, adopted March 1, 1989, and its accompanying map. Since the annexation by the City of Hollywood occurred after the application was filed and determined complete, the land use plans and zoning ordinances for the City of Hollywood cannot be considered as part of this land use hearing. Section 403.508(2), Florida Statutes. Further, the City of Hollywood had no land use designations or zoning classification applicable to the site at the times the application was filed and determined complete.

    
    

17. The applicant has established by competent, substantial evidence that the proposed power plant site is consistent and in compliance with existing land use plans and zoning ordinances.

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Governor and Cabinet, sitting as the Siting Board,

enter a Final Order finding that the proposed Lauderdale Repowering Project Site

is consistent and in compliance with existing land use plans and zoning ordinances.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 4th day of April 1990.

CLAUDE B. ARRINGTON

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 4th day of April 1990.

COPIES FURNISHED:

Peter C. Cunningham, Esquire Douglas S. Roberts, Esquire Hopping Boyd Green & Sams Post Office Box 6526 Tallahassee, Florida 32314

Hamilton S. Oven, Jr., P.E.

Department of Environmental Regulation Twin Towers Office Building

2600 Blair Stone Road Tallahassee, Florida 32399-2400

Steven Pfeiffer, General Counsel Kathryn Funchess, Senior Attorney Department of Community Affairs 2740 Centerview Drive

Tallahassee, Florida 32399-2100

Sarah Nall, Esquire

South Florida Water Management District Post Office Box 24680

West Palm Beach, Florida 33416-4680

Suzanne S. Brownless, Esquire Division of Legal Services Florida Public Service Commission

101 East Gaines Street Fletcher Building, Room 212

Tallahassee, Florida 32399-0850

Gary Smallridge

Assistant General Counsel

Department of Environmental Regulation Twin Towers Office Building

2600 Blair Stone Road Tallahassee, Florida 32399-2400

Noel M. Pfeffer, Esquire Deputy County Attorney Governmental Center, Suite 423

115 South Andrews Avenue

Fort Lauderdale, Florida 33301

Thomas R. Henderson

Broward County Resource Recovery

115 South Andrews Avenue, Room 521 Fort Lauderdale, Florida 33301

Patricia Woodworth, Director

Land and Water Adjudicatory Commission Planning and Budgeting

Executive Office of the Governor The Capitol, PL-05

Tallahassee, Florida 32399-0001

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: Lauderdale Repowering ) Project, Power Plant Site )

Certification Application, ) CASE NO. 89-6636 Florida Power & Light Company, ) (Land Use Hearing) PA89-26. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case on March 13, 1990, in Ft. Lauderdale, Florida.

APPEARANCES

For Florida Power & Peter C. Cunningham, Esquire Light Company: Douglas S. Roberts, Esquire

Hopping Boyd Green & Sams Post Office Box 6526 Tallahassee, Florida 32314

For the Department Hamilton S. Oven, Jr., P.E. Of Environmental Administrator

Regulation: 2600 Blair Stone Road Tallahassee, Florida 32399-2400

For the Department Steven Pfeiffer, Esquire of Community Affairs: General Counsel

2740 Centerview Drive

Tallahassee, Florida 32399

For Broward County: Noel M. Pfeffer, Esquire

Deputy County Attorney Governmental Center, Suite 423

115 S. Andrews Avenue

Fort Lauderdale, Florida 33301 STATEMENT OF THE ISSUES

Whether the proposed site of the Lauderdale Repowering Project is consistent and in compliance with existing land use plans and zoning ordinances.

PRELIMINARY STATEMENT

On November 29, 1989, Florida Power and Light Company (FPL) filed an application for power plant certification for the repowering of two existing generating units at FPL's Lauderdale Plant Site (the "Project"). This application was filed pursuant to the Florida Electrical Power Plant Siting Act, Sections 403.501-403.519, Florida Statutes. The statutory scheme calls for both this land use hearing and a certification hearing, which will be held later.

Section 403.508, Florida Statutes.

At the hearing, FPL called Charles D. Henderson, an employee of FPL, and Richard Zwolak, who was accepted as an expert witness in planning, particularly land use planning and zoning. FPL offered FPL Exhibits 1 through 15, which were received into evidence.

The Department of Environmental Regulation (DER) called no witnesses, but did offer DER Composite Exhibit 1, which was received into evidence. Broward County, which timely filed a notice of intent to be a party to these proceedings, called no witnesses and offered no exhibits. The Department of Community Affairs (DCA) called no witnesses and offered no exhibits. The Public Service Commission and the South Florida Water Management District, both parties to this proceeding, did not appear at this land use hearing.

A transcript of the proceedings has been filed. All of the proposed findings of fact contained in the Joint Proposed Recommended Order of Florida Power and Light Company, Department of Environmental Regulation, Department of Community Affairs, and Broward County have been adopted in material part by this Recommended Order. No other post-hearing submittals were filed.

FINDINGS OF FACT

1. On November 29, 1989, Florida Power and Light Company (FPL) filed a Site Certification Application with the Florida Department of Environmental Regulation (DER) for the certification of what is referred to as the Lauderdale Repowering Project. The application was determined complete by DER on December 13, 1989.

   
   

2. The site for the proposed Lauderdale Repowering Project is a previously-developed, 392-acre parcel of land in southeastern Broward County.

   An adjacent ten-acre parcel will be utilized temporarily during construction for parking and equipment laydown. The site lies about 1 mile east of the Florida Turnpike and 1 mile west of Interstate 95. State Road 84 and Interstate 595 are north of the site. Griffin Road is about one-half mile south of the site. The site is bounded on the north and west by the South New River Canal and on the south by the Dania Cutoff Canal.

3. The site has been utilized for the generation of electricity since the 1920's. Current use of the site consists of two fossil-fuel-fired steam generating units (which are referred to as Units 4 and 5, respectively) and 24 gas turbine units. The total net generating capacity of the existing Lauderdale Plant is 1,248 megawatts.

   
   

4. The project will involve the "repowering" of Units 4 and 5 by the replacement of each unit's steam generator with a new combustion turbine and a heat recovery steam generator. The project will increase the net generating capacity at the site by approximately 680 megawatts. The existing 24 gas turbines at the Lauderdale Site will be unaffected by the Repowering Project.

   
   

5. In addition, new water and wastewater treatment facilities and stormwater runoff ponds will be constructed as part of the project. The tallest structures on site will be the 150 foot tall stacks associated with the new heat recovery steam generators. No principal structure will be constructed closer than 25 feet from the site's south boundary along the Dania Cutoff Canal.

   
   

6. The site was located entirely within the unincorporated area of Broward County on the dates the application was filed and determined complete. A small portion of the southeast corner of the site was annexed into the City of Hollywood, Florida, on December 27, 1989, which is after FPL filed the Site Certification Application. Because the pertinent statutes provide that the applicable land use plans and zoning ordinances are those in effect as of the date of the application, the land use plans and zoning ordinances for the City of Hollywood were not considered as part of this land use hearing. (The City of Hollywood had not, as of the time of the formal hearing, enacted land use designations or zoning classifications for the portion of the site that had been annexed.)

   
   

7. The land use plan that governs the Lauderdale Site for purposes of this hearing is the Future Unincorporated Area Land Use Element of the Broward County Comprehensive Plan adopted by the Broward County Board of County Commissioners on March 1, 1989, and its accompanying map. The applicable zoning regulations are Broward County's Zoning Ordinance as codified in Chapter 39 of the Code of Broward County.

   
   

8. The entire proposed site for the project consists of land designated either as Utility or as Industrial under the Future Unincorporated Area Land Use Element and its accompanying map. Electrical power plants, such as that proposed by FPL, are uses permitted in both the Utility and Industrial designations under the Future Unincorporated Area Land Use Element. The site is also consistent with location-oriented objectives and policies of the Future Unincorporated Area Land Use Element concerning Utility and Industrial designations.

   
   

9. The site is similarly designated for utility and industrial uses under the Broward County Land Use Plan. The Broward County Land Use Plan was prepared as a guide in the preparation of the Future Unincorporated Area Land Use Element. The Broward County Planning Council has certified the Future Unincorporated Area Land Use Element as the effective land use plan for the unincorporated areas of Broward County.

   
   

10. The site is zoned M-3 under the Broward County Zoning Ordinance, which is the general industrial zoning district permitting a variety of industrial uses. Electrical power plants are a permitted use within the M-3 zoning district as electrical power plants are not prohibited by Section 39-1073 of the

    Broward County Zoning Code; are not otherwise prohibited by other resolutions or by law; and are not listed as permissible only in an M-4 or an M-5 zoning district.

    
    

11. The DER caused notice of this land hearing to be published on January 25, 1990, in the Miami Herald, on January 26, 1990, in the Ft. Lauderdale Sun- Sentinel and the Ft. Lauderdale News, and on February 2, 1990, in the Florida Administrative Weekly . The DER mailed notice of this hearing to the chief executives of the local and regional authorities with responsibility for zoning and land use planning whose jurisdiction includes the site. In addition, FPL posted notices of this hearing at the proposed site. The DER, the Florida Department of Community Affairs, and Broward County agree that the location of the Lauderdale Repowering Project at the Lauderdale Site is consistent and in compliance with existing land use plans and zoning ordinances.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Sections 120.57(1) and 403.508(1), Florida Statutes.

    
    

13. Section 403.508(2), Florida Statutes provides, in pertinent part, as follows:

    
    

    The sole issue for determination at the land use hearing shall be whether or not the proposed site is consistent and in compliance with existing land use plans and zoning ordinances. The designated hearing officer's recommended order shall be issued within 30 days of completion of the hearing and shall be reviewed by the board within 45 days of receipt of the recommended order by the board. If it is determined by the board that the proposed site does conform with existing land use plans and zoning ordinances in effect as of the date of the application, the responsible zoning or planning authority shall not thereafter change such land use plans or zoning ordinances so as to affect the proposed site unless certification is subsequently denied.

    
    

14. As used in Section 403.508, Florida Statutes, the term "board" means the Governor and Cabinet sitting as the Siting Board. See Section 403.503, Florida Statutes.

    
    

15. The applicable land use plans and zoning ordinances are those adopted by Broward County in effect as of the date of the application. The land use plan that governs the Lauderdale Site for purposes of this hearing is the Future Unincorporated Area Land Use Element of the Broward County Comprehensive Plan, adopted March 1, 1989, and its accompanying map. The annexation of a small portion of the site by the City of Hollywood occurred after the application was filed and determined complete. Pursuant to Section 403.508(2), Florida Statutes, the board is to determine whether or not the proposed site is consistent and in

    compliance with "existing" land use plans and zoning ordinances. As used in this statute, "existing" land use plans and zoning ordinances are those that were in effect as of the date of the application. Consequently, subsequently enacted land use plans and zoning ordinances by the City of Hollywood, which had no land use designations or zoning classification applicable to the site at the times the application was filed and determined complete, cannot be considered as part of this land use hearing.

    
    

16. The applicant has established by competent, substantial evidence that the proposed power plant site is consistent and in compliance with existing land use plans and zoning ordinances.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Governor and Cabinet, sitting as the Siting Board,

enter a Final Order finding that the proposed Lauderdale Repowering Project Site is consistent and in compliance with existing land use plans and zoning ordinances.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 4th day of April 1990.

CLAUDE B. ARRINGTON

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 4th day of April 1990.

* NOTE: THE APENDIX TO THIS RECOMMENDED ORDER IS AVAILABLE

FOR REVIEW IN THE DIVISION OF ADMINISTRATIVE HEARING'S CLERK'S OFFICE.

COPIES FURNISHED:

Peter C. Cunningham, Esquire Douglas S. Roberts, Esquire Hopping Boyd Green & Sams Post Office Box 6526 Tallahassee, Florida 32314

Hamilton S. Oven, Jr., P.E.

Department of Environmental Regulation Twin Towers Office Building

2600 Blair Stone Road Tallahassee, Florida 32399-2400

Steven Pfeiffer, General Counsel Kathryn Funchess, Senior Attorney Department of Community Affairs 2740 Centerview Drive

Tallahassee, Florida 32399-2100

Sarah Nail, Esquire

South Florida Water Management District Post Office Box 24680

West Palm Beach, Florida 33416-4680

Suzanne S. Brownless, Esquire Division of Legal Services Florida Public Service Commission

101 East Gaines Street Fletcher Building, Room 212

Tallahassee, Florida 32399-0850

Gary Smallridge

Assistant General Counsel

Department of Environmental Regulation Twin Towers Office Building

2600 Blair Stone Road Tallahassee, Florida 32399-2400

Noel M. Pfeffer, Esquire Deputy County Attorney Governmental Center, Suite 423

115 South Andrews Avenue

Fort Lauderdale, Florida 33301

Thomas R. Henderson

Broward County Resource Recovery

115 South Andrews Avenue, Room 521 Fort Lauderdale, Florida 33301

Patricia Woodworth, Director

Land and Water Adjudicatory Commission Planning and Budgeting

Executive Office of the Governor The Capitol, PL-05

Tallahassee, Florida 32399-0001

Docket for Case No: 89-006636EPP

Orders for Case No: 89-006636EPP