STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: )

APPLICATION FOR POWER PLANT ) CASE NO. 92-4672EPP CERTIFICATION FOR DADE COUNTY ) OGC NO. 92-1346 RESOURCES RECOVERY FACILITY ) (LAND USE)

PROJECT, PA 77-08B )

)

RECOMMENDED ORDER

Pursuant to notice, a formal land use hearing was held in this case on October 28, 1992, in Miami, Florida, before the Division of Administrative Hearings, by its designated Hearing Officer, Diane K. Kiesling.

APPEARANCES

For Dade County, Ross A. McVoy Florida: Attorney at Law

Fine, Jacobson, Schwartz, Nash & Block

215 South Monroe Street, Suite 804 Tallahassee, Florida 32301-1859

and Stanley B. Price Attorney at Law

Fine, Jacobson, Schwartz, Nash & Block

100 Southeast Second Street, Suite 3600 Miami, Florida 33131-2130

For Department Richard T. Donelan, Jr. of Environmental Assistant General Counsel

Regulation: Twin Towers Office Building

2600 Blair Stone Road Tallahassee, Florida 32399-2400

For Department William H. Roberts

of Assistant General Counsel Transportation: 605 Suwannee Street, Mail Station 58

Tallahassee, Florida

For Florida Game Melanie J. Steinkamp

and Freshwater Offices of Environmental Services Fish Commission: c/o James Antista, General Counsel

Bryant Building

630 South Meridian Street Tallahassee, Florida 32399-1600

For Intervenor David M. DeMaio West Dade Attorney at Law

Federation of V. P. Internal Affairs Officer Homeowners West Dade Federation of Associations: Homeowners Associations

One Costa del Sol Boulevard Miami, Florida 33178

ISSUE

The issue is whether the proposed site is consistent and in compliance with existing land use plans and zoning ordinances.

PRELIMINARY STATEMENT

At the land use hearing, Dade County presented the testimony of Hamilton S. Oven, Jr., J. Michael Ellis, Tanhum Goldshmid, Robert Usherson, and Reinaldo Villar. Dade County's Exhibits 1 through 9 were admitted in evidence. No other party offered any testimony or exhibits.

The transcript of the proceedings was filed on November 6, 1992. Dade County, the Applicant, filed its proposed findings of fact and conclusions of law on November 6, 1992. No other party filed a proposed recommended order on the land use proceeding. All proposed findings of fact and conclusions of law have been considered. A specific ruling on each proposed finding of fact is made in the Appendix attached hereto and made a part of this Recommended Order.

FINDINGS OF FACT

1. NOTICE

   
   

   1. In compliance with Rule 17-17.151(4)(e), Florida Administrative Code, notice of the hearing was published in the Florida Administrative Weekly on October 2, 1992. A news release containing notice of the hearing was given to the media on September 21, 1992, and October 21, 1992. A copy of the public notice was sent by certified mail, return receipt requested, to the chief executives of the local authority responsible for zoning and land use planning in Dade County, in compliance with Rule 17-17.151(4)(b), Florida Administrative Code.

      
      

   2. A copy of the public notice was posted at the site in compliance with Rule 17-17.151(4)(c), Florida Administrative Code. Additionally, notice was published on September 25, 1992, in the Miami Review, a newspaper of general circulation in Dade County, in compliance with Rule 17-17.151(4)(a), Florida Administrative Code.

      
      

2. LAND USE AND ZONING CONPLIANCE

1. The proposed expansion of Dade County's Resource Recovery Facility, as set forth in its Site Certification Application, will be within the confines of the certified site of the existing resource recovery facility. Hence, that existing site carries a presumption that its current use is consistent with land use considerations.

   
   

2. The site of the proposed expansion is consistent with the Dade County Comprehensive Development Master Plan (Dade Master Plan) pursuant to the Growth Management Act of 1985. More particularly, the site has a land use designation

   of "Institutional and Public Facility" on the Future Land Use Plan Map of the Dade Master Plan. The "Institutional and Public Facility" designation permits the construction and operation of a resource recovery facility. Also, the proposed expansion of Dade County's Resource Recovery Facility is consistent with:

   
   

   1. Objective 5 and Policies 5-A and 5-B as set forth in the interpretive text to the Land Use Element of the Dade Master Plan;

   2. Objective 3 and Policies 3-A, 3-B, 3-C, 3-D, 3-E and 3-F of the Conservation Element of the Dade Master Plan; and

   3. Policies 1-K and 4-B of the Water, Sewer and Solid Waste Elements of the Dade Master Plan.

      
      

3. The existing site is presently within the GU interim district. Resolution R-569-75, which granted county approval for the existing site, satisfies the need to show compliance with the zoning ordinance. The proposed expansion of the Dade County Resource Recovery Facility is consistent with the zoning code found in Chapter 33 of the Code of Metropolitan Dade County as well as Resolution R-569-75.

   
   

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. Sections 120.57(1) and 403.508(2), Florida Statutes.

   
   

5. Pursuant to Section 403.508(2), Florida Statutes, the sole issue for determination in this proceeding is whether the proposed expansion of the resource recovery facility is consistent and in compliance with the existing land use plans and zoning ordinances.

   
   

6. The evidence presented by Dade County clearly demonstrates that the proposed expansion is consistent and in compliance with the Dade County Comprehensive Development Master Plan, the Dade County Zoning Code, and other applicable local regulations.

   
   

7. No other party to this proceeding offered any testimony or evidence to contest Dade County's position that the site of the proposed expansion is consistent and in compliance with the land use regulations or zoning ordinance.

   
   

8. It is concluded that the site of the proposed expansion 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 determining that the site of the proposed Dade County expansion of its resource recovery facility is consistent and in compliance with existing land use plans and zoning ordinances.

DONE and ENTERED this 24th day of November, 1992, at Tallahassee, Florida.

DIANE K. KIESLING

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 24th day of November, 1992.

APPENDIX TO RECOMNENDED ORDER IN CASE NO. 92-4672EPP

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted in this case.

Specific Rulings on Proposed Findings of Fact Submitted by the Applicant, Dade County

1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 2-4(1); 5(2); 6(4); and 7(5).

2. Proposed finding of fact 1 is unnecessary.

COPIES FURNISHED:

Ross McVoy, Attorney at Law Fine Jacobson Schwartz Nash &

Block

215 South Monroe, Suite 804 Tallahassee, Florida 32301-1859

Stanley B. Price, Attorney at Law Fine Jacobson Schwartz Nash &

Block

100 Southeast 2nd Street Suite 3600

Miami, Florida 33131-2130 Representing the Applicant

Richard Donelan

Assistant General Counsel Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, Florida 32399-2400 Representing DER

Hamilton S. Oven, Jr.

Office of Siting Coordination Department of Environmental Regulation

2600 Blair Stone Road Tallahassee, Florida 32399-2400

Gail Fels

Assistant County Attorney Metro Dade Center, Suite 2800

111 Northwest First Street Miami, Florida 33128 Representing Dade County

Lucky T. Osho

Assistant General Counsel Department of Community Affairs 2740 Centerview Drive

Tallahassee, Florida 32399-2100 Representing DCA

William H. Roberts Assistant General Counsel

Department of Transportation 605 Suwanee Street, MS-58

Tallahassee, Florida 32399-0458 Representing DOT

Toni M. Leidy Attorney at Law South Florida Water

Management District 3301 Gun Club Road Post Office Box 24680

West Palm Beach, Florida 33416-4680 Representing SFWMD

Michael Palecki, Chief Bureau of Electric & Gas Florida Public Service

Commission

101 East Gaines Street Tallahassee, Florida 32399-0850 Representing PSC

M. B. Adelson IV Assistant General Counsel

Department of Natural Resources 3900 Commonwealth Blvd., MS-35 Tallahassee, Florida 32399-3000 Representing DNR

James Antista, General Counsel Florida Game and Fresh Water

Fish Commission Bryant Building

630 South Meridian Street Tallahassee, Florida 32399-1600 Representing GFWFC

Carolyn Dekle, Executive Director Sam Goren, Attorney at Law

South Florida Regional Planning Council

3440 Hollywood Boulevard, Suite 140

Hollywood, Florida 33021 Representing South Florida Regional

Planning Council

David M. DeMaio Attorney at Law

One Costa del Sol Boulevard Miami, Florida 33178 Representing West Dade Federation

of Homeowner Associations

Honorable Lawton Chiles Honorable Jim Smith

Governor Secretary of State

State of Florida State of Florida

The Capitol The Capitol, PL-02 Tallahassee, Florida 32399 Tallahassee, Florida

32399-0250

Honorable Robert A. Butterworth Honorable Tom Gallagher Attorney General Treasurer and Insurance State of Florida Commissioner

The Capitol State of Florida Tallahassee, Florida 32399-1050 The Capitol

Tallahassee, Florida 32399

Honorable Bob Crawford

Commissioner of Agriculture Honorable Gerald A. Lewis State of Florida Comptroller

The Capitol State of Florida Tallahassee, Florida 32399-0810 The Capitol, Plaza Level

Tallahassee, Florida 32399

Honorable Betty Castor Commissioner of Education State of Florida

The Capitol

Tallahassee, Florida 32399

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.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: )

APPLICATION FOR POWER PLANT ) CASE NO. 92-4672EPP CERTIFICATION FOR DADE COUNTY ) OGC NO. 92-1346 RESOURCES RECOVERY FACILITY )

PROJECT, PA 77-08B )

)

ORDER CLOSING FILE

THIS CAUSE came before the undersigned for consideration of Metropolitan Dade County's notice of withdrawal of its application for power plant certification, conveyed in correspondence to the Department of Environmental Protection dated June 20, 1995, and of the Department of Environmental Protection's acceptance of the withdrawal, filed July 7, 1995. Having reviewed the record in this proceeding and being advised in the premises, it is

ORDERED:

1. The file of the Division of Administrative Hearings is closed.

   
   

2. This matter is returned to the referring agency for final disposition.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 18th day of July 1995.

PATRICIA HART MALONO

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 18th day of July 1995.

COPIES FURNISHED:

Ross A. McVoy, Esquire

Eckert, Seamans, Cherin & Mellott

206 South Adams Street Tallahassee, FL 32301-1859 Representing the Applicant

Charles T. "Chip" Collette Assistant General Counsel

Department of Environmental Protection 2600 Blair Stone Road

Tallahassee, FL 32399-2400 Representing DEP

Hamilton S. Oven, Jr.

Office of Siting Coordination Department of Environmental Protection 2600 Blair Stone Road

Tallahassee, FL 32399-2400

Gail Fels

Assistant County Attorney Metro Dade Center, Suite 2800

111 N.W. First Street Miami, FL 33128 Representing Dade County

Karen Brodeen

Assistant General Counsel Department of Community Affairs 2740 Centerview Drive

Tallahassee, FL 32399-2100 Representing DCA

David G. Guest

Sierra Club Legal Defense Fund, Inc. Post Office Box 1329

Tallahassee, FL 32302 Representing Sierra Club

Tom Duffy, Esquire

William H. Roberts, Esquire Department of Transportation 605 Suwanee Street, MS-58 Tallahassee, FL 32399-0458 Representing DOT

Toni M. Leidy Attorney at Law

South Florida Water Management District 3301 Gun Club Road

Post Office Box 24680

West Palm Beach, FL 33416-4680 Representing SFWMD

Michael Palecki, Chief Bureau of Electric & Gas

Florida Public Service, Commission 2540 Shumard Oak Boulevard Tallahassee, FL 32399-0850 Representing PSC

James Antista, General Counsel Florida Game and Fresh Water

Fish Commission Bryant Building

630 South Meridian Street Tallahassee, FL 32399-1600 Representing GFWFC

Carolyn Dekle, Executive Director Sam Goren, Esquire

South Florida Regional Planning Council 3440 Hollywood Boulevard, Suite 140

Hollywood, FL 33021

Representing South Florida Regional Planning Council

David M. DeMaio, Esquire One Costa del Sol Boulevard Miami, FL 33178

Representing West Dade Federation of Homeowner Associatio

David Ferrell

U.S. Fish & Wildlife Service 1360 U.S. Highway 1, Ste. 5 Vero Beach, FL 32960 Representing U.S. Fish and

Wildlife Service

Ben J. Guilford, II Department of Solid Waste

8675 Northwest 53rd Street, Suite 202

Miami, FL 33166

Docket for Case No: 92-004672EPP

Orders for Case No: 92-004672EPP