STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

U.S. FUNDING GROUP, LLC, )

)

Petitioner, )

)

vs. ) Case No. 09-6014GM

) MANATEE COUNTY AND DEPARTMENT ) OF COMMUNITY AFFAIRS, )

)

Respondents, )

)

and )

) FLORIDA BIOMASS ENERGY, LLC, ) AND PATRON HOLDINGS, LLC, )

)

Intervenors. )

)

RECOMMENDED ORDER

Pursuant to notice, this matter was heard before the Division of Administrative Hearings by its assigned Administrative Law Judge, D. R. Alexander, on April 14-16 and May 3-4, 2010, in Bradenton, Florida.

APPEARANCES

For Petitioner: Robert K. Lincoln, Esquire

Tracy Dillard-Spahn, Esquire Icard, Merrill, Cullis, Timm,

Furen & Ginsburg, P.A.

2033 Main Street, Suite 600

Sarasota, Florida 34237-6093

For Respondent: Lynette Norr, Esquire (Department) Department of Community Affairs

2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100

For Respondent: James A. Minix, Esquire (County) Sarah A. Schenk, Esquire

County Attorney's Office Post Office Box 1000

Bradenton, Florida 32406-1000

For Intervenor: James D. Dye, Esquire

(FBE) Patricia A. Petruff, Esquire Warren A. Pies, Esquire

Dye, Deitrich, Petruff & St. Paul, P.L. 1111 Third Avenue West, Suite 300

Bradenton, Florida 34205-7834

For Intervenor: Robert H. Willis, Jr., Esquire

(Patron) Skelton, Willis, Bennett & Wallace, LLP

Post Office Box 30

St. Petersburg, Florida 33731-0030 (appeared on April 14, 2010, only)

STATEMENT OF THE ISSUE

The issue is whether a change on the Future Land Use Map (FLUM) of the Comprehensive Plan (Plan) adopted by Respondent, Manatee County (County), by Ordinance No. 09-31 on August 11, 2009, is in compliance.

PRELIMINARY STATEMENT

By Ordinance No. 09-31, the County changed the land use designation on a parcel of property owned by Intervenor, Patron Holdings, LLC (Patron), from Industrial Light (IL) to Public/ Semi-Public-1 (P/SP(1)). The new land use designation allows, among other things, the use of the property as an alternative

fuel electrical generating facility. The property is under contract to be sold to Intervenor, Florida Biomass Energy, LLC (FBE), who intends to construct and operate a biomass plant on the property. On September 29, 2009, Respondent, Department of Community Affairs (Department), published its Notice of Intent to Find Manatee County Comprehensive Plan Amendment in Compliance (Notice of Intent). On October 20, 2009, Petitioner,

U.S. Funding Group, LLC (Petitioner or USFG), who owns property in the immediate vicinity of the subject property, filed with the Department its Petition for Administrative Hearing (Petition) alleging that the map change was not in compliance for numerous reasons. The matter was referred by the Department to the Division of Administrative Hearings on November 2, 2009, with a request that the matter be assigned to an administrative law judge and that a formal hearing be conducted. By Order dated December 8, 2009, FBE was authorized to intervene, and Patron was authorized to intervene by Order dated January 22, 2010. At the request of the parties, the case was initially placed in abeyance pending settlement negotiations.

By Notice of Hearing dated December 23, 2009, a final hearing was scheduled on April 14-16, 2010, in Bradenton, Florida. On April 7, 2010, the County filed a Motion in Limine (Motion) seeking to exclude all evidence regarding hazardous

waste and air quality issues that were being considered by the Department of Environmental Protection (DEP) in a separate proceeding in which FBE is seeking an air permit for the facility. See DOAH Case No. 10-1680. (Official recognition has been taken of the fact that Petitioner filed a Stipulated Notice of Voluntary Dismissal in that proceeding on June 14, 2010, and jurisdiction in the case was relinquished to DEP the same day so that an air permit has been issued by DEP.) The Motion was denied at the outset of the hearing, with the understanding that the undersigned would determine the relevancy of the evidence, when offered, or at the time this Recommended Order was prepared. A Joint Pre-Hearing Stipulation (Stipulation) was filed by the parties on April 9, 2010, and a Supplemental Pre- Hearing Statement was filed by Petitioner the same day.

At the final hearing, Petitioner presented the testimony of Dr. David W. Depew, a certified planner and accepted as an expert; and Scott H. Osbourn, a professional engineer with Golder Associates, Inc., and accepted as an expert. Also, it offered Petitioner's Exhibits 1-4, 4a, 5, 8-11, 13a-d, 14a-d, 15a-d, 16-21, 21a, 22d, 22f, 22i, 22j, and 23-29. An objection to Exhibits 13a-d, 14a-d, and 15a-d was sustained, while a ruling was reserved on Exhibits 22b, 22d, 22f, 22i, 22j, and 26-

1. The objection to those exhibits is sustained. Petitioners

   other exhibits have been received. The Department did not present any witnesses, but adopted the evidence of the County and FBE. The County presented the testimony of Gordon Hester, managing member of USFG; Leon Kotecki, Principal County Planner; and Chris A. Wigglesworth, a Department Senior Planner and accepted as an expert. Also, it offered County Exhibits 6-13, 17-19, 20, 23, 24, 26, and 27, which were received in evidence. FBE presented the testimony of Ethel D. Hammer, a land use planner and accepted as an expert; and Richard F. Jensen, Jr., its president. Also, it offered FBE Exhibits 1-3, 5, 10-13, and 17-19, which were received in evidence. Except for attending the first day of the hearing, Patron did not otherwise participate in this matter. Finally, the parties offered Joint Exhibits 1 through 16, which were received in evidence.

   The first four volumes of the Transcript of the hearing were filed on June 25, 2010, while the fifth volume was filed on July 12, 2010. Proposed Findings of Fact and Conclusions of Law were filed by Petitioner and jointly by the County, Department, and FBE on July 14, 2010, and they have been considered in the preparation of this Recommended Order.

   FINDINGS OF FACT

   
   

   Based upon all of the evidence, the following findings of fact are determined:

   1. The Parties

      
      

      1. The Department is the state land planning agency charged with the responsibility for reviewing plan amendments of local governments, including the County.

      2. The County is a local government that administers its Plan, which it amends from time to time. The County adopted the Ordinance which approved the change in the FLUM being challenged here.

      3. Petitioner is a Florida limited liability company with offices located at 4379 Ocean Boulevard, Sarasota, Florida. It owns property in the County. Petitioner appeared at the transmittal hearing for the amendment and submitted comments on the record in opposition to the amendment.

      4. FBE is a Florida limited liability company and has contracted to purchase the subject property from Patron. It operates a renewable energy development company in the County. It submitted comments to the County during the adoption process.

      5. Patron is a Florida limited liability company that owns the subject property. It submitted comments in support of the plan amendment during the adoption process.

   2. History of the Amendment

      
      

      1. On March 27, 2009, FBE (as agent for Patron) filed a Land Development Application (application) with the County

         Planning Department requesting approval of a FLUM change for the property from IL to P/SP(1). See Joint Exhibit 1. The existing IL land use authorizes office, light industry, research/ corporate parks, warehouse distribution, intensive commercial uses, neighborhood retail uses, hotel/motel, selected single- family, and residential uses. See Joint Exhibit 12. The Plan describes the general range of potential uses under the new category as recreational uses, sanitary landfills, permanent water and wastewater treatment/storage/disposal facilities, and other public facilities including, but not limited to, public airports, major maintenance facilities, solid waste transfer stations, and major utility transmission corridors. Id.

         Residential uses are not allowed. One intent of the P/SP(1) category is to recognize facilities associated with private utilities, such as the biomass plant proposed by FBE. Id.

      2. The application indicated that FBE intends to operate a sixty-megawatt biomass integrated power plant on the property and to continue to retain all uses allowed by the IL category. (In contrast to a power plant that uses coal or oil to generate electricity, a biomass plant uses renewable energy sources such vegetative materials to create electric energy.) The power generated at the facility will be sold to Progress Energy

         Florida, an investor-owned public utility. The application was accepted, numbered PA-09-08, and assigned Ordinance No. 09-31.

      3. Sometime in early April 2009, a staff report was prepared by the County's Principal Planner, Leon Kotecki, which included land use characteristics and development trends, plan amendment justification, and positive and negative aspects of the application and mitigating factors. See Joint Exhibits 5 and 6.

      4. The staff report also included what is described as a Plan Amendment Detailed Review and Land Planning Analysis that discussed services and natural features, urban development considerations, and consistency with the Plan, the State Comprehensive Plan (State Plan), Florida Administrative Code Rule Chapter 9J-5,1 and relevant portions of the Florida Statutes (2009).2 The report recommended that the application be approved. In making this favorable recommendation, the planner compiled and reviewed data on land compatibility, traffic impacts, and water and sanitary uses. He also took into account the topography of the site, how the Coastal High Hazard Area (CHHA) affected the site, its proximity to Port Manatee, and the surrounding uses.

      5. On April 4, 2009, the County published an advertisement of a public hearing on the application in the

         Bradenton Herald and the Sarasota Herald Tribune. Also, letters were sent to all property owners within 500 feet of the proposed amendment. Petitioner received personal notice of the amendment by letter dated May 20, 2009.

      6. On April 16, 2009, the Planning Commission conducted a hearing on the plan amendment and by a 4-1 vote recommended transmitting the amendment to the Board of County Commissioners.

      7. On April 21, 2009, the Board of County Commissioners conducted a public hearing and voted 6-0 to transmit the proposed amendment (as a part of a larger amendment package) to the Department for its review.

      8. On June 29, 2009, the Department issued its Objections, Recommendations, and Comments (ORC) report for a series of map amendments, including the biomass project. See Joint Exhibit 4. In the ORC, the Department lodged an objection regarding the lack of sufficient planning guidelines as required by Future Land Use Element (FLUE) Policy 2.2.1.22(4)(b)(i), specifically noting that the amendment did not restrict the property to a particular use. Id. at p. 3. That policy requires that an amendment for a proposed P/SP(1) category include a declaration of the specific use for which the P/SP(1) category is sought. The ORC also indicated that the amendment was not consistent with various goals, policies, and objectives

         in the State Plan for the reasons cited in the Objections portion of the ORC. Id. at pp. 3-4. The ORC recommended that the amendment include site-specific policies establishing meaningful and predictable guidelines and standards to guide development on the site. Id. at p. 3.

      9. After receipt of the ORC, the County revised the plan amendment by including a text amendment containing ten conditions (stipulations) that would apply if the property was developed as an electric generating facility using biomass fuels and/or solar energy. These conditions were included in the adopting ordinance as a new Section D.5.4 in the General Introduction Chapter and are a part of the Plan. See Joint Exhibit 10 at pp. 4-5. The new section provides that the property is limited to an "electricity generating facility using only biomass fuels and solar energy retaining the light industrial uses as provided for in the former IL Industrial Future Land Use Category applicable to the site." Id. at p. 4. The section further provides that the ten conditions are "minimal requirements" and that further conditions may be added during the development process, as necessary. Id. at p. 5. Thus, future stipulations at a later date can exceed the minimum requirements in the County's Land Development Code.

      10. On August 11, 2009, the County conducted a public hearing and adopted Ordinance No. 09-31, with the changes presented by its staff.

      11. On September 29, 2009, the Department published its Notice of Intent to find the amendment in compliance in the Bradenton Herald.

      12. On October 20, 2009, Petitioner filed its Petition challenging the map change and text amendment. The issues have been more narrowly defined in its Proposed Recommended Order and can be summarized as follows: the amendment is internally inconsistent with FLUE Policy 2.2.1.22.2 and is inconsistent with Rule 9J-5.006(3)(c) and Section 163.3177(6)(a), Florida Statutes, because it impermissibly allows IL uses in the P/SP(1) land use category; the amendment is inconsistent with Rule 9J- 5.006(3)(c)1. and 7. and Section 163.3177(6)(a), Florida Statutes, because it impermissibly expands the uses in the P/SP(1) category by including IL uses and does not contain the required intensity standards; the amendment is internally inconsistent with FLUE Policy 2.2.1.22.4.(b)(i) because it fails to declare a specific use for the IL uses; the amendment is inconsistent with the financial feasibility requirements of Section 163.3177(2), Florida Statutes, and Rule 9J-5.019(3); the amendment is inconsistent with the requirements of Rules 9J-

          5.006(2)(b) and 9J-5.005(2)(a) and Section 163.3177(6)(a),

          
          

          Florida Statutes, because it is not based on an analysis of the best available data regarding the suitability of the site for a biomass facility; and the amendment is inconsistent with the requirements of Rule 9J-5.005(2)(a) because it was not based on an analysis of the best available data for compatibility with residential uses in the surrounding area.

   3. The Property and Surrounding Uses

      
      

      1. Patron's property consists of around 44.4 acres and is located at 11551 and 11805 U.S. Highway 41 North in the northwest part of the County, just south of the Hillsborough County line. The eastern side of the property adjoins U.S. Highway 41, a major four-lane highway running north-south, while property owned by CSX Corporation (CSX), including an active railroad track, and then a large drainage canal border the site on its western side. (The railroad track is around one-quarter mile west of U.S. Highway 41.) West of the canal is agricultural land and a large parcel owned by Port Manatee designated as IL but used as conservation lands. To the south (in IL-designated land) lies an aircraft parts manufacturing facility owned by Trielectron Industries, which shares a boundary with Petitioner's property. To the north, the site adjoins property owned by Florida Power & Light Company, on

         which a substation is located. FBE plans to connect its power plant to the electric grid through this substation.

      2. The property is bisected by Armstrong Road, an unpaved County-maintained road running east-west, which provides access from U.S. Highway 41 to Patron's property and the land just west of the CSX property. Approximately one-third of the property lies north of Armstrong Road, while the remaining two-thirds lie south of the road. The southern 450 to 500 feet of the site consists of wetlands, forests, and vegetation, which serve as both a distance and visual buffer to uses to the south and southwest. (Because of these wetlands, a biomass plant would have to be constructed on the middle of the site.) Immediately west of the CSX property is an unpaved road that turns south to provide access to row crop fields and then to an 88-acre, rectangle-shaped parcel owned by Petitioner.

      3. Port Manatee, a deepwater seaport connected to the Gulf of Mexico through Tampa Bay, is less than a mile north of the site. The area between Port Manatee and Patron's property contains port-related uses which are mostly industrial uses such as construction yards and an aggregate plant. To the east of the port is a closed phosphate processing plant and associated phosphogypsum stacks, which are the remains after the phosphate is processed.

      4. The existing zoning on the property is Planned Development Encouragement Zone (PDEZ). The existing uses allowed under that category include a range of light and heavy industrial uses and are listed on the General Development Plan approved by the County on December 4, 2008. See County Exhibits

         13 and 24. This information is relevant here because the zoning classification is consistent with the County's intent to focus heavy industrial uses within close proximity to Port Manatee.

      5. Development trends in the area of Port Manatee and the Patron property are predominately industrial. All of the surrounding development is either light or heavy industrial uses with the exception of six single-family homes located on Chapman Road, which terminates on the eastern side of U.S. Highway 41 just south of the site and extends eastward. The homes are located in a strip of land extending east on Chapman Road for a quarter mile or so and south for around a mile on the eastern side of U.S. Highway 41 that is classified as Retail/Office/ Residential (ROR). That category allows a range of uses including retail, wholesale or commercial uses, and public or semi-public uses. Thus, the residential units have the potential to eventually transition to nonresidential uses without a map change. There remain a few open parcels of land in the area that are available for additional development.

      6. Petitioner's property comprises around 88.7 acres.

         
         

         The southwest corner of Patron's property lies around one- quarter mile from the northeast corner of Petitioner's property. Counting the 450-foot green space on the southern end of Patron's property, the distance between the site of the plant and Petitioner's main parcel is around 1,900 feet. Petitioner also owns a narrow strip of land extending northward from the main parcel to Armstrong Road. This strip adjoins the western side of the CSX railroad track and provides access to the property from U.S Highway 41.

      7. On November 30, 2004, the County approved a residential project for Petitioner's property and rezoned the land from Suburban Agriculture and Suburban Agriculture/Coastal High Hazard Overlay District to Planned Development Residential/ Coastal High Hazard Overlay District. The project is known as the Estates at Bishop Harbor. The Preliminary Site Plan for the property depicted 66 lots for single-family detached residences. Before any development occurred, however, the original developer defaulted on the mortgage held by Petitioner, a foreclosure occurred, title to the property reverted to Petitioner, and no development ever occurred. The property is still vacant. At the time of the hearing, Petitioner had an application pending before the County to change the land use designation on 83.31

         acres from Residential-1 (one dwelling unit per acre) to IL. The outcome of that application is unknown. The remaining 5.39 acres are already designated IL. Based on these circumstances, it is fair to infer that the long-delayed construction of the planned residential subdivision is questionable.

      8. Stipulation 6 of the approval of the change in land use on Petitioner's property was a requirement that a Notice to Buyers be included in the Declaration of Covenants and Restrictions and in the sales contracts or a separate addendum to the sales contracts and final site plans that includes language informing prospective homeowners that there are neighboring industrial uses and the potential for future industrial development including possible truck traffic and noises associated with industrial uses.

   4. Petitioner's Objections

1. Petitioner first contends that the plan amendment is internally inconsistent with FLUE Policy 2.2.1.22.2 and inconsistent with the requirements of Rule 9J-5.006(3)(c) and Section 163.3177(6)(a), Florida Statutes, because it permits light industrial uses in the P/SP(1) land use category. Petitioner argues that IL uses are not permitted in the P/SP(1) category. It also argues that by failing to include specific intensity standards in the amendment for the allowed IL uses,

   the amendment is inconsistent with the requirements of Rule 9J- 5.006(3)(c)1. and 7. and Section 163.3177(6)(a), Florida Statutes. The rule requires that the FLUE contain policies regulating land use categories included on the FLUM and establishing standards for intensities of use for each future land use category. The statute requires that each land use category be defined in terms of uses allowed and include standards to be followed in the control and distribution of building and structure intensities.

2. Policy 2.2.1.22 establishes the P/SP(1) land use category; Policy 2.2.1.22.1 describes the intent of the category; Policy 2.2.1.22.2 describes the general range of potential uses in the category; and Policy 2.2.1.22.3 provides the range of potential intensity for the category. The general range of potential uses in the P/SP(1) category include:

Recreational uses, sanitary landfills, permanent water and wastewater treatment/ storage/disposal facilities and other major public facilities including but not limited to, airports owned or operated by a public entity, major maintenance facilities, solid waste transfer stations, [and] major utility transmission corridors. Also, when the P/SP(1) designation is an easement on privately-held property, other uses consistent with the adjacent future land use category or categories, where consistent with the purpose of the easement and consistent with all other goals, objectives, and policies of this Comprehensive Plan, may

also be considered. (See also Policy 2.1.1.5)

Policy 2.1.1.5 provides further clarification on the allowed uses in this category by requiring that the County ensure the availability of sufficient land in the P/SP(1) category "to allow development of major public or semi-public uses (e.g., electrical generation facilities . . .) in appropriate areas when compatible with surrounding development." Joint Exhibit

1. The Plan permits light industrial uses within the P/SP(1) category.

   1. Notwithstanding the broad range of uses described above, FLUE Policy 2.2.1.5 provides the County with more flexibility in determining the appropriate uses for any given plan category. The policy states that the future land use category listings of uses are "generalized," they are not "all inclusive," and they "may be interpreted to include other land uses which are similar to or consistent with those set forth in the general range of potential uses." See Joint Exhibit 12. IL uses are similar in character and intensity to the type of uses listed in the P-SP(1) category. Because the property was classified as IL before the amendment, all of the IL uses in that category have been evaluated and determined by the County to be appropriate in terms of location, impact, and intensity. For these reasons, it is fairly debatable that the plan

      amendment is consistent with FLUE Policy 2.2.1.22.2, Rule 9J- 5.006(3), and Section 163.3177(6)(a), Florida Statutes.

      Likewise, the P-SP(1) category has a broad range of uses in terms of intensity, and even though the amendment does not contain specific intensity standards for the IL uses, the Plan contains other provisions required by Chapter 9J-5 to ensure compatibility between any future uses on the site and the surrounding properties in terms of intensity. Therefore, it is fairly debatable that the plan amendment is consistent with Rule 9J-5.006(3)(c)1. and 7. and Section 163.3177(6)(a), Florida Statutes.

   2. Petitioner further argues that the plan amendment is inconsistent with FLUE Policy 2.2.1.22.2.4(b)(i), which requires that "[a]n applicant shall be required to declare a specific use or uses for a specific piece of property for which the applicant is proposing to amend the existing future land use category to P/SP(1)." Petitioner argues that while FBE has identified one specific use for the P/SP(1) category -- a biomass plant -- it has not declared the specific use or uses which FBE is proposing under the IL category.

   3. Because the light industrial uses allowed under the IL category remain the same as before the amendment, and were previously evaluated when the Plan was originally adopted in

      1989, it is fairly debatable that the amendment is consistent with FLUE Policy 2.2.1.22.2.4(b)(i). The generalized reference to IL uses is adequate since it merely recognizes uses already approved and in effect.

   4. In its Proposed Recommended Order, Petitioner also contends that the plan amendment is inconsistent with the financial feasibility requirements of Section 163.3177(2), Florida Statutes, and Rule 9J-5.019(3) because the County's five-year Capital Improvements Program contains no programmed improvements for U.S. Highway 41. The rule requires that there be a transportation analysis to support a FLUE amendment.

      However, this issue was not raised in the parties' Stipulation and need not be addressed. See Heartland Environmental Council, Inc. v. Dept. of Comm. Affrs., et al., Case No. 94-2098GM, 1996 Fla. ENV LEXIS 163 at *63 (DOAH Oct. 15, 1996, DCA Nov. 25,

      1996)("[a party] is bound by the allegations in its Petition for Hearing . . . as further limited by the Prehearing Stipulation"). Even if it was a viable issue, the evidence shows that during the review and adoption process, the County relied upon a Florida Department of Transportation traffic analysis link sheet for February 2009 and information supplied by the applicant, which show that the current levels of service (LOS) on U.S. Highway 41 are A and B, that the projected number

      of peak hour trips will actually result in an overall net decrease in trips when compared to the existing Plan category, and that no capital improvements are needed. See Joint Exhibit

      2 at pp. 14-15; Joint Exhibit 4. An assertion by Petitioner that the LOS on U.S. Highway 41 may deteriorate if a biomass plant is not built and the IL uses are developed to their maximum potential is speculative at best and not supported by the evidence.

   5. Petitioner next contends that the amendment is inconsistent with the requirements of Section 163.3177(6)(a), Florida Statutes, and Rules 9J-5.005(2)(a) and 9J-5.006(2)(b) because it was not based on the best available data regarding the suitability of the site for the biomass facility. The statute requires that the FLUE be based on "surveys, studies and data regarding the area, including . . . the character of undeveloped land." Rule 9J-5.005(2)(a) requires that the amendment be based on relevant and appropriate data and analysis, while Rule 9J-5.006(2)(b)3. requires that the amendment be based on an analysis of the character of the land in order to determine its suitability for use, including the topography of the site.

   6. In support of this argument, Petitioner points out that when the County planner reviewed the amendment, he assumed

      that less property was within the CHHA than was depicted on the FLUM, that a majority of the property was at or above 10 feet in elevation, and that it would not flood in a Category I storm event. The planner reached this conclusion based on a review of large-scale United States Geological Survey (USGS) topographic maps and Light Detecting And Ranging (LIDAR) maps. However, an undated topographic survey (prepared for an earlier prospective purchaser of the Patron property and given by Patron to FBE when it signed a contract to purchase the property) and a technical memorandum prepared by FBE's consultant, Golder Associates, Inc., on March 31, 2009, reflected that much of the property lies within the CHHA at an elevation of five feet or less, or below the 5.8-foot storm surge elevation for a Category I storm event. This information was in the personal files of FBE's president and its out-of-town consultant and was not given to the County prior to the adoption of the amendment. Petitioner argues that this information is the best available data, and that if the County had been given these documents during its review process, it would have determined that the Patron property was not suitable for industrial uses.

   7. The County was not given the survey and memorandum prepared by the FBE consultant because that information was prepared only for use at the site plan review stage. This is

      not unusual since the County does not require signed and sealed surveys and engineering reports during the amendment process.

      While the data were in existence prior to the adoption of the map change in August 2009, they were not disclosed until a few days before final hearing (through discovery) and consequently were not "available for public inspection" prior to the amendment's adoption. After analyzing the new data (over objection of opposing counsel) for the first time at hearing, the County planner indicated that if he had known that the elevation was lower than that depicted on the USGS maps, he would have "given [the application] closer consideration." Even so, he emphasized that his recommendation would still be the same because any development on the site can be protected during the development process by berms, suspension of units aboveground, and other development standards. Assuming arguendo that the data were "available for public inspection" and should have been considered for that purpose, given the rigorous standards that apply during the site approval process, it is still fairly debatable that the amendment is supported by adequate data and analysis as to the suitability of the site and that the County reacted to it in an appropriate manner.

   8. Similarly, Petitioner points out that the technical memorandum prepared by FBE's consultant on March 31, 2009,

      revealed that the soils on the site are not suitable for a heavily loaded structure such as a biomass plant. Therefore, it argues that the amendment was not based on professionally acceptable data and analysis with respect to the suitability of the property to support a biomass plant, as required by

      Section 163.3177(6)(a), Florida Statutes, and Rules 9J- 5.005(2)(a) and 9J-5.006(2)(b)2. The latter rule requires a land use analysis for soils in order to determine the suitability of proposed uses on the site.

   9. In addressing this issue in the staff report, the planner relied upon the 1983 Soil Survey of Manatee County and determined that the property had three types of soil: Bradenton Fine Sand; Chobee Loamy Fine Sand; and Wabasso Fine Sand. See Joint Exhibit 2 at p. 17. He further determined that these three soils are "poorly drained, level to nearly level, sandy to loamy, and underlain by sandy marine sediment and limestone." Id. However, because several heavy industries are already operating adjacent and within the immediate surrounding area with the same type of soil limitations, he concluded that the soil limitations could be "overcome by the proper design of drainage facilities and engineering design of buildings." Id. It is fairly debatable that the data and analysis are adequate

      to support the amendment in this respect, and that the County reacted to that data in an appropriate manner.

   10. Petitioner further argues the amendment violates Rule 9J-5.005(2)(a) because it is not based on a compatibility

       analysis of the industrial uses with the residential uses in the surrounding area. Like the preceding two objections, this one is framed in terms of a lack of the best available data to support the amendment. In its Proposed Recommended Order, Petitioner also cites as being relevant to this objection FLUE Policies 2.1.1.5 and 2.2.1.22.4.(b)(i), which require that a change in land use to P/SP(1) only be made "in appropriate areas when compatible with surrounding development," and that an applicant "provide information and analysis on the compatibility of the proposed use or uses . . . with surrounding development." Petitioner points out that there are six single-family homes, characterized by one expert as an "artifact" from an earlier era, that extend out one-half mile along Chapman Road to the east/southeast of Patron's property, and that the County failed to consider the compatibility of industrial uses with those homes. It also argues that the County's analysis was based on the construction of a sixty-megawatt facility, as proposed by FBE, and did not consider a larger, more intense facility.

   11. In making its compatibility analysis for the surrounding area, the County considered all residences on Chapman Road extending out eastward a quarter to a half mile, which included the six houses in question. With the exception of the six houses, the data relied upon by the County reflected that the entire surrounding development is either light or heavy industrial uses, which is consistent with the County's focus to encourage industrial development in the Port Manatee area. The six houses are in a strip of land designated as ROR, which allows a mix of retail, office, and residential uses. Some of the existing uses that are near the homes, and within the ROR category, are considered "intensive." Given this type of development, it is highly unlikely that more homes will be constructed in the ROR area. If and when a biomass plant is constructed, existing development standards will be used to ensure compatibility with the ROR uses. Petitioner did not refute this evidence. When considering the area and uses as a whole, it is fairly debatable that there are adequate data and analysis to support a determination that the new land use will be compatible with the residential uses in the surrounding area.

   12. All other issues raised by Petitioner and not addressed herein have been considered and found to be without merit.

       CONCLUSIONS OF LAW

       
       

   13. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Sections 120.569, 120.57(1), and 163.3184(9), Florida Statutes.

   14. In order to have standing to challenge a plan amendment, a challenger must be an affected person as defined in Section 163.3184(1)(a), Florida Statutes. The facts establish that Petitioner and Intervenors own property and/or operate a business within the County and submitted oral or written comments to the County during the adoption process. Therefore, they are affected persons and have standing to participate in this matter.

   15. In this case, the Department rendered a notice of intent to find a plan amendment in compliance. Therefore, the challenged plan provision "shall be determined to be in compliance if the local government's determination of compliance is fairly debatable." § 163.3184(9)(a), Fla. Stat. As such, Petitioner bears the burden of proving beyond fair debate that the challenged plan amendment is not in compliance. This means that "if reasonable persons could differ as to its propriety," the plan amendment must be upheld. Martin County v. Yusem, 690 So. 2d 1288, 1295 (Fla. 1997). Stated differently, where there

       is "evidence in support of both sides of a comprehensive plan amendment, it is difficult to determine that the County's decision was anything but 'fairly debatable.'" Martin County v. Section 28 Partnership, Ltd., 772 So. 2d 616, 621 (Fla. 4th DCA 2000).

   16. For the reasons given in the Findings of Fact, Petitioner has failed to establish beyond fair debate that the amendment is not in compliance. Therefore, it is concluded that the plan amendment adopted by Ordinance No. 09-31 is in compliance.

   17. Finally, during the hearing, Petitioner offered into evidence Exhibits 22b, d, f, i, and j, and 26-29, which were produced by FBE's president at his deposition taken on April 8, 2010, or three working days before the hearing.3 A ruling on the admissibility of those exhibits was reserved. They were not given to the County prior to the adoption of the amendment and therefore were not available for inspection by the public. Of the nine exhibits, Petitioner has placed the greatest emphasis on Exhibit 26, a technical memorandum prepared by its consultant on March 31, 2009, regarding, among other things, elevation of the site and soil conditions on the property; and a topographic survey marked as Petitioner's Exhibit 28, which was represented by counsel to be excerpts taken from FBE Exhibit 13, an undated

       survey given by Patron to FBE after it signed a contract to purchase the land. FBE offered the complete survey as FBE Exhibit 13, but only for the limited purpose of describing the circumstances under which it received the document and not for its accuracy or content. Petitioner contends these exhibits constitute the best available data regarding the character of the land and its suitability for use as a biomass plant. Within the context of this argument, their admissibility and relevance depend on whether they were in existence at the time the amendment was adopted and were available for public inspection prior to the adoption of the amendment. See § 163.3177(8), Fla. Stat.; Fla. Admin. Code R. 9J-5.005(1)(c). While all of the documents appear to pre-date, at least by one day, the adoption hearing on August 11, 2009, they were not available for public inspection. Therefore, they cannot be relied upon for the purposes advanced by Petitioner. The objection to Petitioner's Exhibits 22b, d, f, i, and j, and 26-29 is sustained.

   18. Petitioner contends, however, that under the rationale in Zemel, et al. v. Lee Cty., et al., DOAH Case No. 90-7793GM, 1993 Fla. ENV LEXIS 77 (DOAH Dec. 16, 1992, DCA June 22, 1993), such data may be considered. Unlike the circumstances here, however, the Zemel case focused on whether data not in existence until after the adoption hearing could be relied upon as the

       best available existing data to challenge a plan amendment. Determining that such data should not be received in evidence for that purpose, the hearing officer also concluded in dictum that the public participation process could be "impair[ed]" by allowing a local government or affected person to refer at hearing to existing data not in fact used while adopting the amendment. Id. at *89. In other dictum, he noted that allowing a local government or affected person to wait until the final hearing to identify the existing data that forms the basis for adopting or challenging the amendment would not serve "the principles of public participation." Id. Rather than supporting Petitioner's position, the dictum suggests that even if data exist at the time the amendment is adopted, they must have been provided to the local government in order to satisfy the public participation requirement. See also O'Connell, et al. v. Dep't of Cmty. Affairs, et al., DOAH Case No.01-4826GM, 2002 Fla. ENV LEXIS 263 at *16 (DOAH Oct. 16, 1992), adopted,

       2003 Fla. ENV LEXIS 16 (DCA Jan. 3, 2003); Hussey, et al. v.

       
       

       Collier Cty., et al., DOAH Case Nos. 02-3795 and 02-3796, 2003 Fla. Div. Hear. LEXIS 304, n.21 at *66-67 (DOAH April 29, 2003, DCA July 22, 2003).

   19. Because of the de novo nature of the proceeding, there may be circumstances where documents post-dating the adoption

hearing or in existence but not used by the local government at the adoption hearing would be admissible for purposes other than satisfying Rule 9J-5.005(2)(a). See, e.g., Toppino's, Inc. v.

Dep't of Cmty. Affairs, DOAH Case No. 02-0418GM, 2004 Fla. ENV LEXIS 242, n.2 at *4 (DOAH April 29, 2004, DCA Aug. 9, 2004);

Osborne, et al. v. Town of Beverly Beach, et al., DOAH Case No. 03-4785GM, 2005 Fla. ENV LEXIS 190 (DOAH Aug. 29, 2005),

adopted, 2005 Fla. ENV LEXIS 189 (DCA Nov. 4, 2005). But here the disputed documents were proffered only for the purpose of being used as data to support the requirement that plan amendments must be based on the best available data, and the de novo principle does not apply. To the extent Petitioner contends that some of the exhibits are relevant to issues regarding the operation of the biomass plant, those issues are either within the purview of DEP's regulatory jurisdiction, will be addressed during the site approval process, or are subject to other state statutes and codes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Department of Community Affairs enter a final order denying USFG's Petition and determining that the plan amendment adopted by Ordinance No. 09-31 is in compliance.

DONE AND ENTERED this 28th day of July, 2010, in Tallahassee, Leon County, Florida.

S

D. R. ALEXANDER Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 28th day of July, 2010.

ENDNOTES

1/ All references are to the current version of the Florida Administrative Code.

2/ All references are to the 2009 version of the Florida Statutes.

3/ The exhibits are performance specifications for an early iteration of the biomass plant (Exhibit 22b); an early depiction of the site layout (Exhibit 22d); the consultant's proposal to conduct an environmental assessment dated April 14, 2009 (Exhibit 22f); performance specifications for another iteration of the biomass plant dated August 7, 2009 (Exhibit 22i); the consultant's proposal for permitting and engineering support dated August 10, 2009 (Exhibit 22j); the technical memorandum dated March 31, 2009 (Exhibit 26); a preliminary geotechnical investigation dated June 21, 2006 (Exhibit 27); excerpts from an undated survey (Exhibit 28); and the consultant's "project setup form" to conduct an environmental and noise assessment dated April 16, 2009 (Exhibit 29).

COPIES FURNISHED:

Thomas G. Pelham, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100

Shaw P. Stiller, General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100

Robert K. Lincoln, Esquire Icard, Merrill, Cullis, Timm,

Furen & Ginsburg, P.A.

2033 Main Street, Suite 300

Sarasota, Florida 34237-6093

Lynette Noor, Esquire Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 325

Tallahassee, Florida 32399-2100

Robert A. Minix, Esquire Deputy County Attorney Post Office Box 1000

Bradenton, Florida 34206-1000

James D. Dye, Esquire

Dye, Deitrich, Petruff & St. Paul, P.L. 1111 3rd Avenue, West, Suite 600

Sarasota, Florida 34237-7834

Robert H. Willis, Jr., Esquire

Skelton, Willis, Bennett & Wallace, LLP Post Office Box 30

St. Petersburg, Florida 33731-0030

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days of the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will render a final order in this matter.

Docket for Case No: 09-006014GM

Orders for Case No: 09-006014GM