STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
ADJUTANT GENERAL AND DEPARTMENT ) OF MILITARY AFFAIRS, )
)
Petitioners, )
)
vs. )
CLAY COUNTY AND DEPARTMENT OF ) COMMUNITY AFFAIRS, )
)
Respondents, )
)
and )
)
EVA ADAMS; IRA AND JO ANN ) ADAMS; BEAR BAY TIMBER COMPANY, )
LLC; HAWK SWAMP, LLC; R. )
MATTHEW HICKEY; ROBERT EUGENE ) HICKEY; WILLIAM MCARTHUR; JACK ) AND DONNA HICKEY MILTON; JUSTIN ) AND, KELLY MOSLEY; JENNINGS ) MURRHEE; MIKE MURRHEE; LOUISA ) PADGETT; MICHAEL AND JANICE ) RHODEN; JAMES AND CAROLYN ) WEEKS; JAMES AND JOAN WEEKS; ) WAYNE AND STACY WEEKS; JOE ) WILKES; JOHN WILLIAMS; KENT ) WILLIAMS AND WILLIAMS AND ROW ) COMPANY, )
Intervenors. )
)
)
Case No. 10-0912GM
CORRECTED AS TO NUMBERING OF PARAGRAPHS
CORRECTED RECOMMENDED ORDER
This case was heard by David M. Maloney, Administrative Law Judge of the Division of Administrative Hearings, on July 12-15 and August 12, 2010, in Green Cove Springs, Florida.
APPEARANCES
For Petitioner Adjutant General and Department of
Military Affairs:
Martha Chumbler, Esquire Danny Hernandez, Esquire Carlton Fields, P.A. Post Office Box 190
Tallahassee, Florida 32302-0190
Elizabeth C. Masters, Esquire Florida National Guard
Post Office Box 1008
St. Augustine, Florida 32085-1008 For Respondent Clay County:
Mark H. Scruby, Equire Clay County Attorney Post Office Box 1366
Green Cove Springs, Florida 32043-1366
Marcia Parker Tjoflat, Esquire John R. Campbell, Esquire
Pappas, Metcalf, Jenks & Miller, P.A.
245 Riverside Avenue, Suite 400 Jacksonville, Florida 32202
For Respondent Department of Community Affairs:
Lynette Norr, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard
Tallahassee, Florida 32399-2100
For Intervenors:
Hainline, Esquire Paige Johnston, Esquire Emily Pierce, Esquire Rogers Towers, P.A.
1301 Riverplace Boulevard, Suite 1500
Jacksonville, Florida 32207-9000
STATEMENT OF THE ISSUE
The Camp Blanding Joint Training Center ("Camp Blanding" or the "Camp") is in Clay County (the "County"). As the local government with land use authority over lands adjacent to and in close proximity to Camp Blanding, the County is required to amend or update the future land use element of its adopted comprehensive plan "to include criteria to be used to achieve the compatibility of lands adjacent or closely proximate to" the Camp. See § 163.3177(6)(a), Fla. Stat. (2009).1/
The County adopted Clay County Comprehensive Plan Amendment 09-1MIL in Ordinance No. 2009-65 in order to fulfill the statutory requirement.2/
The issue in this case is whether the Amendment is "in compliance" as that term is defined in section 163.3184(1)(a), Florida Statutes. To be in compliance the Amendment must be consistent with section 163.3177. Petitioners' specific contentions are that the Amendment is not consistent with subsections (6)(a) and (8)3/ of section 163.3177.4/
PRELIMINARY STATEMENT
The Department of Community Affairs ("DCA") issued a Notice of Intent ("NOI") finding the Amendment "in compliance" as that term is defined by section 163.3184(1)(b). On January 28, 2010, DCA published the NOI.5/
On February 19, 2010, Petitioners, the Florida Adjutant General (the "Adjutant General") and the Florida Department of Military Affairs ("DMA") filed a petition challenging the determination of compliance. The petition, together with the published NOI, were forwarded to the Division of Administrative Hearings and filed on February 22, 2010, for assignment of an administrative law judge.
On March 24, 2010, the Petition for Leave to Intervene was filed by: Eva Adams; Ira and Jo Ann Adams; Bear Bay Timber Company, LLC; Hawk Swamp, LLC; R. Matthew Hickey; Robert Eugene Hickey; William McArthur; Jack and Donna Hickey Milton; Justin and Kelley Mosley; Jennings Murrhee; Mike Murrhee; Louisa Padgett; Michael and Janice Rhoden; James and Carolyn Weeks; James and Joan Weeks; Wayne and Stacey Weeks; Joe Wilkes; John Williams; Kent Williams; and Willams and Rowe Company. The petition was granted on April 7, 2010. On June 15, 2010, a second petition to intervene was filed by: 1621 Venture LLC and 1621 Venture II LLC. That petition was granted on July 13, 2010, the first day of hearing.
On June 16, 2010, the County filed a motion requesting a limited extension of the hearing, in order to allow testimony of a witness who was unavailable on the originally scheduled hearing dates of July 12 through 15. The request was granted on June 17, 2010, with an Order scheduling August 13, 2010, for
taking testimony of that witness and any rebuttal in response to such testimony. Petitioners later requested leave to offer the testimony of two of their witnesses on that same date and, in order to ensure sufficient time to complete the hearing, an Amended Order was entered extending the hearing to include both August 12 and 13, 2010. Ultimately, the parties were able to complete their cases on August 12, 2010.
On June 25, 2010, the Intervenors filed a motion requesting that time be set aside at the final hearing to allow for comment from the public. Petitioners and DCA responded in opposition.
An Order denied the motion shortly thereafter.
On July 8, 2010, DCA filed a suggestion of mootness or, in the alternative, motion in limine, in which DCA argued that changes made by the 2010 Legislature to section 163.3177(6) rendered the issues in this proceeding moot. An Order was entered denying the suggestion of mootness but granting the motion in limine by excluding any evidence relating to compliance with chapter 2010-182, Laws of Florida.
The parties filed their Joint Prehearing Stipulation on July 7, 2010.
At the final hearing, Petitioners called the following witnesses: Lieutenant Colonel Ted Mauzey, Operations Officer for Camp Blanding; Lieutenant Colonel Cecil Cauley, Assistant Chief of Staff at St. Augustine and formerly the assistant range
officer, the acting operations officer and the range officer at Camp Blanding; Paul Catlett, Camp Blanding's Forestry Program Administrator; Master Sergeant Delance, Camp Blanding's range operations NCO; Lara Katherine Diettrich, a planner with the Kimley-Horn and Associates' Jacksonville office; Darren Taylor, AICP, a government consultant with the Carlton, Fields Law Firm; George Arthur Luz, Ph.D., a research psychologist with a specialty in sensory systems; Colonel Perry Hagaman, the State Army Aviation Officer; and Lieutenant Colonel William Mignon, Jr., a supervisory instructor pilot at Cecil Field in Jacksonville, Florida. Petitioners' Exhibits 4-6 and 13-15 were admitted into evidence.
The County called the following witnesses: Mike Kloehn, AICP, Clay County Planning and Zoning Director, accepted as an expert in comprehensive land use planning; and Paul C. Shomer, Ph.D, P.E., an acoustical consultant primarily in environmental noise and detectability of signals, who was accepted as an expert in noise. County Exhibits 2, 3, 7(a), 7(b), 7(c), 8(a), 8(b), 9(a), 9(d), 9(g), 9(i), 9(j), 9(k), 9(l), 9(m), 9(n),
12(a), 13(a), 13(b) and 20 were admitted into evidence.
The Intervenors called Susan Fraser, accepted as an expert in comprehensive planning and land use planning; and Jennings Murrhee, former Sheriff of Clay County. Intervenors' Exhibit 1
was admitted. The Department did not call any witnesses; nor did it offer any exhibits.
Joint Exhibits 1 through 6 were admitted into evidence. A Transcript of the hearing was prepared and filed with
DOAH on September 7, 2010. The parties timely filed Proposed Orders on September 30, 2010.
FINDINGS OF FACT
Camp Blanding
Camp Blanding was established in 1939 as a National Guard Training Center. Over the years, its size has fluctuated from 39,000 to 125,000 acres. It currenty encompasses 73,000 acres located in southwestern Clay County on the border of Clay and Bradford Counties.
The Camp was converted to an Army training garrison in 1940. After the war, all but 40,000 acres of the Camp were returned to state and private landowners. The Camp saw limited activity after the war until 1961, when the Florida National Guard Officers Candidate School was established there.
Now known as the Camp Blanding Joint Training Center, the Camp is the site of training activities essential to the national defense. Training activities have greatly increased since the Camp's founding. The increase has been particularly marked over the last decade. From 2000 to 2004, the cumulative number of training days at the Camp increased from 231,000 to
292,000. In 2004, there were approximately 180 to 200 days of active training at the Camp. The Camp experienced a trend in increased training days over the next four years. In 2009, the Camp conducted approximately 300 days of active training. The increase in training is shown by other data. For example, with two and a-half training months left in 2010, more than one million more rounds had been fired in training than in all of the previous year.
The cantonment area comprises approximately 5,000 acres, which house the administrative buildings, barracks, and other support facilities. Major maneuver training areas comprise 55,000 acres able to accommodate a wide variety of training. These include small arms and heavy artillery firing ranges, an aerial gunnery range, and training areas for tactical mortar firing, demolitions, special operations, air navigation, parachuting, and amphibious operations.
While live rounds may only be fired within established firing ranges primarily at the center of the Camp, small arm and machine gun blank rounds and artillery and demolition simulators can be fired outside the Camp's ranges including near the Camp's fence line.
A wide range of heavy artillery and large caliber weapons are fired at the Camp. The Camp's artillery firing points are currently used for firing of artillery up to 105
millimeters in size, but can accommodate artillery rounds of up to 155, the heaviest artillery round currently in use by both the Army and Marine Corps. The Camp provides numerous mortar firing points, from which mortar of up to 120 millimeters are fired.
The aerial gunnery range at the Camp will accommodate training on all weapons systems associated with the AC-130 gunship, including a 25 millimeter Gatling-gun, a rapid-fire 40 millimeter cannon, and a 105 millimeter Howitzer, as well as aerial bomb training with bombs up to 500 pounds.
The types of training ranges at the Camp have evolved in order to meet the training needs of the military - - particularly since September 11, 2001, and the invasions of Iraq and Afghanistan that followed. New firing ranges are scheduled to be constructed at the Camp between now and 2016.
In addition to arms and artillery training, the Camp is an active airfield. It has the capacity to train both rotary and fixed-wing aircraft. Aircraft training is predominately devoted to helicopters.
Helicopter training at the Camp includes training on Apache, Blackhawk, Chinook, and Huey helicopters, as well as other rotary-wing aircraft. Helicopter flight training occurs virtually every day at the Camp, with an average of two helicopters training each day. Night flight training generally
occurs three days each week and, unlike artillery training, is not limited by the voluntary 11:00 p.m. curfew.
The Florida Guard unit that trains with helicopters at the Camp is stationed at Cecil Field to the north of the camp near Jacksonville. The Camp provides its only practical helicopter training area.
On the Camp, helicopter pilots utilize the Camp's Corridor and Route System ("CARS") to maneuver around the perimeter of the Camp and between training areas. The CARS consists of a two-way corridor system. The first corridor is located within the Camp boundary. Pilots flying within this corridor navigate in a clockwise direction and, under normal weather conditions, maintain an altitude of 600 feet. The second corridor is located immediately outside the Camp boundary. Pilots flying within this outside corridor navigate in a counter-clockwise direction and, under normal weather conditions, maintain an altitude of 1,000 feet.
The altitudes within the CARS are subject to change due to weather.
The physical boundaries of the CARS are not visible to pilots flying within the CARS. The CARS simply represents the "rules of the road" used to avoid conflicts between helicopters circumnavigating the Camp. While difficult to discern from the
CARS map itself, the County's planning director interprets the CARS as extending 1000 feet beyond the Camp boundary.
Once a helicopter enters a training area, it generally operates at a low altitude - - right at tree level. Helicopters can maneuver virtually anywhere within the area with the exception of certain restricted areas located along the eastern boundary of the Camp. Some of these restricted areas were designated following complaints by owners of property in the vicinity.
Among the types of fixed-wing aircraft that most commonly train at the Camp are the AC-130 Gunship and unmanned surveillance aircraft.
Some areas of the Camp are not available for training because of administrative buildings and endangered species habitat as well as self-imposed restrictions.
The Parties
The Adjutant General is the head of the DMA and is statutorily charged with the responsibility of overseeing all operations at Camp Blanding.
DMA is the agency of the State of Florida that conducts military operations at the Camp. Both on its own behalf and on behalf of the Adjutant General, DMA submitted comments in regard to the Amendment. They were submitted after
the Amendment was transmitted to DCA for review as a proposed amendment prior to its adoption.
Clay County is the local government that adopted the Amendment.
DCA is Florida's "state land planning agency" responsible for reviewing amendment to local comprehensive plans in order to determine whether they are "in compliance" as defined in section 163.3184(1)(b).
The Intervenors are individuals and or legal entities that own property located in Clay County near the Camp. Comments were submitted to the County on behalf of the Intervenors during the hearing on adoption of the Amendment.
Surrounding Land Uses
The majority of the land uses surrounding the Camp as shown on the 2025 Future Land Use Map (the FLUM) are Agriculture (AG), Agriculture/Residential (AR), Rural Residential (RR), and Recreation/Preservation (RP). Other uses surrounding the camp are Conservation Easement (CO), Mining (MIN), Rural Fringe (RF), and relatively small areas designated as Commercial (COM) and Industrial (IND). The Camp, itself, is designated Military (MIL).
To the north and northeast, are lands designated AG and RR and Jennings State Forest, designated as RP. To the east is the Satsuma Tract, designated RP, and lands designated AG and
RR as well as lands shown on the FLUM as "Conservation Easement" under a Conservation/Greenways Overlay. To the southeast are Belmore State Forest and Gold Head Branch State Park, both designated as RP, lands designated as AR and a small area designated as MIN and IND. South of the southernmost border of the Camp is land designated RF. To the south of most of the Camp and west of it (along the short western borders of the Camp not adjacent to Bradford County) are small areas designated RP and IND in the midst of land designated AG. Except for these relatively small areas of RP, IND and AG, the bulk of the land to the west of the Camp is in Bradford County, as more than 75 percent of the Camp's westernmost border lies immediately adjacent to Bradford County.
The AG land use category is the most rural of the bordering land uses. It is intended for those areas of the County designated as appropriate locations for all types of agricultural pursuits including crop production, pasture land for grazing cattle and horse farming, timber production, and cover crops for soil regeneration. The AR land use category is a transition between suburban residential densities and major agricultural and silvicultural activities. The RR land use category serves as a transition between areas with planned urban services, agricultural/residential areas, and environmentally sensitive areas.
Lands designated RP are generally owned by public or quasi-public entities. These lands are held for use as non- profit public recreation and open space amenities and do not have residential densities associated with them. Conservation lands have a maximum density of one dwelling unit (du) per 100 acres.
The maximum residential densities allowed in the major land use categories other than RP are:
AG 1 unit/20 acres
AR 1 unit/10 acres (1:1 with points and clustering)
RR 1 unit/5 acres (1:1 with points and clustering)
The City of Keystone Heights operates an airport near the southwest boundary of Camp Blanding. The airport is used as the primary runway facility for fixed-wing units associated with the Camp. Keystone Heights has the greatest density of the Clay County properties proximate to the Camp and includes small areas designated as AG and COM in addition to RF.
The other area of development outside the Camp is primarily northeast of the Camp in an area designated RR.
Along the north and west boundaries of Kingsley Lake, roughly in the center of the Camp and surrounded completely by the Camp is an enclave of approximately 300 residences designated RR and RF.
Compatibility of Lands near Military Installations
Department rules require that local governments address and consider compatibility for all land uses.
"Compatibility" is defined by rule as:
a condition in which land uses or conditions can co-exist in relative proximity to each other in stable fashion over time such that no use or condition is unduly negatively impacted directly or indirectly by another use or condition.
Fla. Admin. Code R. 9J-5.003(23).
The definition provides for an analysis of the direct and indirect impacts land uses have on each other over time to ensure that the uses do not cause undue negative impacts.
Achievement of compatibility does not mean that two land uses will not create some negative impacts on each other. Rather, it is a matter of degree in that the negative impacts
cannot be "undue."
Standards and Guidelines
Subsection (6) of rule 9J-5.005 sets out "Plan Implementation Requirements." It contains the following sentence: "Goals, objectives and policies shall establish meaningful and predictable standards for the use and development of land and provide meaningful guidelines for the content of more detailed development and use regulations."
Data and Analyses Requirements
Subsection (2) of rule 9J-5.005 sets out requirements related to "data and analyses" upon which a comprehensive plan and its support documents are based. Among them are the following:
All goals, objectives, policies, standards, findings and conclusions within the comprehensive plan and its support documents, and within plan amendments and their support documents, shall be based upon relevant and appropriate data and the analyses applicable to each element.
* * *
This chapter shall not be construed to require original data collection by local governments; however, local governments are encouraged to utilize any original data to update or refine the local government comprehensive plan data base so long as the methodologies are professionally accepted.
Data are to be taken from professionally accepted existing sources
. . . . The data used shall be the best available existing data, unless the local government desires original data or special studies.
County Intent and Action
In an effort to satisfy the statutory requirement imposed by section 163.3177(6)(a), the County adopted Ordinance 2009-65, its "Military Installation Ordinance" (the Ordinance).
The Ordinance adopts amendments to the Future Land Use Element of the Clay County 2015 and 2025 Comprehensive Plans.
The subject of this proceeding is the Ordinance's Attachment "B" which contains the amended language at issue and which will be referred to as "the Amendment."
The Amendment
The Amendment amends the Future Land Use Element (FLUE) of the Plan by adding one goal (Goal 3), two objectives (Objectives 3.1 and 3.2) and nine policies (Policies 3.3.1 -
3.1.7 and 3.2.1 and 3.2.2). See Joint Ex. 1, Attachment "B".
Goal 3 states that the County is:
Id. at 8.
To cooperate with Camp Blanding Joint Training Center ("Camp Blanding") to encourage compatible land uses, help prevent incompatible encroachment, and facilitate the continued operation of Camp Blanding as a military installation within the County.
Objective 3.1 requires the County to coordinate "with Camp Blanding so that development on lands adjacent to or in close proximity to Camp Blanding as shown on the Impact Area Map (FLUM Map Series 20) . . . will minimize the impacts to the current and long-term uses of Camp Blanding." Id.
Objective 3.1 also adopts the Impact Area Map and describes the sources of data for the Impact Area Map.6/
The Impact Area Map establishes a composite of three land areas as the Impact Area: 1) the Land Use Planning Zone
("LUPZ"); 2) the Potential Peak Noise Area ("Peak Area"); and 3) the Corridor and Routing System Map ("CARS").
45. | The source of the LUPZ is its depiction: on page 2 of the Operational Noise | ||
Consultation 52-ENF-0CCF-10, Operational Noise Contours for Camp Blanding, FL, October 2009, dated October 21, 2009, prepared by the US Army Center for Health Promotion and Preventive Medicine (USACHPPM) and inserted as an appendix to the Florida Army National Guard Statewide Operational Noise Management Plan, May 2005 (SONMP) also prepared by USACHPPM[.] | |||
Id. | |||
46. | The Peak Area is shown as "115 dBp or higher on | the |
map attached to the MEMORANDUM FOR Construction Facility Maintenance Office . . . dated October 22, 2009, . . . prepared by USACHPPM." Id.
The CARS source is the "175th Engineering Company, June 2000." Id.
Objective 3.2 states the County's commitment "to achieve a high degree of intergovernmental [coordination]7/ and communication to ensure that planning programs work in concert to promote the continued existence of Camp Blanding and avoid incompatible land use activities." Id. at 9.
There are nine policies adopted to achieve the two new objectives: Policies 3.1.1 - 3.1.7 and 3.2.1 and 3.2.2.
50. Five of the nine (Policies 3.1.1, 3.1.2, 3.1.7, 3.2.1, and 3.2.2) require coordination between the County and the Camp, submission by the County of changes related to land use in areas impacted by Camp military activities to the Camp for comment, notice of potential impact from Camp military activities and submission of a request from the County to the Camp Commanding Officer for designation of a representative to serve as a non- voting member on the County's Planning Commission. None of these five policies sets compatibility criteria, standards, or guidelines for achieving compatibility of land uses near the Camp. Were the Camp to submit data relating to potential incompatibility of a future land use, moreover, these policies offer no criteria, standards, or guidelines for the County to use in assessing the data for whether to approve the proposed use.
In contrast, Policies 3.1.4, 3.1.5, and 3.1.6 set compatibility standards and guidelines. Policies 3.1.4 and
3.1.5 set them for structure heights to protect flight safety of air operations at Camp Blanding. Policy 3.1.6 requires lighting standards that limit certain lighting that would otherwise be misleading or dangerous to aircraft within the CARS and require other standards to reduce distractions to training pilots. Petitioners allege that Policies 3.1.4, 3.1.5 and 3.1.6 do not support an "in compliance" determination. At page 18 of their
Proposed Recommended Order, they write: "Even these criteria are insufficient to ensure that compatibility is achieved and the area within which they apply fails to include closely proximate areas that may have undue negative impacts upon or be unduly impacted by Camp Blanding."
Policy 3.1.3 relates to Noise. It provides the
following:
The County shall coordinate with Camp Blanding in an effort to limit allowable uses within the LUPZ (as shown on the Impact Area Map) to uses that will not be substantially impacted by noise. Noise sensitive land uses, including those that are acceptable within the LUPZ according to U.S[.] Army Regulation 200-1, Environmental Protection and Enhancement, Chapter 14, Operational Noise (2007) will be deemed compatible within the LUPZ as shown on the Impact Area Map.
Joint Exhibit One, Attachment "B" at 8. Petitioners claim that Policy 3.1.3 is insufficient to ensure compatibility of Camp Blanding and the land use adjacent or closely proximate to it.
None of the policies contains standards or guidelines that relate to potential impacts from dust, smoke and other airborne emissions, impacts to wildlife, or impacts caused by electromagnetic transmissions associated with future land uses.
The Amendment Process
County staff began work on the Amendment prior to 2006 by coordinating the development of an amendment with Camp staff
and Department staff. The work led to a Military Installation Amendment (the "MIA") which was discussed at a public meeting attended by approximately 300 people. Negative responses to the MIA by area property owners led to a revised amendment adopted by the County in August of 2008 (the "2008 Amendment").
During the period that the 2008 Amendment was under compliance review by the Department, the Camp commented on the 2008 Amendment. In a letter dated October 10, 2008, the Camp identified "three areas where the [Florida National Guard] is unable to support [the 2008 Amendment]." County Ex. 8(a). Those areas, as detailed in the letter were the "Lighting Plan," "Real Estate Disclosure," and "Camp Blanding Area of Influence (CBAOI)". Id.
With regard to the Lighting Plan, among other comments, the letter stated: "The adopted amendment is silent with regards to an area lighting standard." Id.
With regard to the CBAOI, the letter stated:
The adopted amendment needs definitive language designating specific military areas of influence around [the Camp]. Generally, without clear delineation, zoning and land use regulation has little value. The effectiveness and predictability of the regulation depends largely on the precision with which the regulation is written.
Previous draft proposals had identified a specific geographical area of influence. Clay County failed to establish and recognize the CBAOI as an overlay on the Future Land Use Map. The CBAOI includes the
Id.
privately owned property within the boundaries of [the Camp] and properties within a zone extending three miles beyond the installation boundary. The CBAOI is the area of the County primarily affected by the operations and training missions of the military at [the Camp]. Within the CBAOI the County must apply growth management policies and regulatory techniques to guide land use activities and construction in a manner compatible with the long-term viability of [the Camp] and the protection of public health and safety.
Six days later, on October 16, 2008, the Department
published its notice of intent to find the 2008 Amendment "not in compliance." The determination led to an administrative proceeding in which the Camp intervened in support of the Department.
During the discovery process in the administrative proceeding, the County received previously undisclosed data regarding the operation and impacts of the Camp on the surrounding community. The data included the 2005 Florida Army National Guard's Statewide Operational Noise Management Plan (the "2005 SONMP") prepared by the Operational Noise Program and the Directorate of Environmental Health Engineering of the U.S. Army Center for Health Promotion and Preventive Medicine ("USACHPPM" or "CHPPM").
The County, the Department, and the Camp met with the hope of settling the case in light of the data that had been
disclosed in the discovery process. The attempts at settlement were unsuccessful.
In the meantime, section 163.3175 was amended. The amendment extended the deadline for local governments subject to section 163.3177(6)(a) to adopt criteria in its future land use element that address compatibility of lands adjacent to or closely proximate to existing military installations. The deadline was extended until June 30, 2012.8/
Given the extension of the deadline, the County decided to prepare a new amendment based on the newly-disclosed data and other information. It rescinded the 2008 Amendment and began preparation of what became the Amendment subject to this proceeding.
On June 18, 2009, the County wrote the Camp Commander.
In the letter (the "June 18 Request"), the County asked for "help in providing information regarding [the Camp's] mission and operations" in order to assist the County in its endeavors to adopt policies required by section 163.3177(6)(a), Florida Statutes. Among nine specific requests for information in the June 18 Request were these two:
4. Information describing the on-site (i.e. on the [Camp] installation) exterior lighting design and construction standards currently used by [the Camp] to assure that [the Camp's] exterior lighting does not interfere with on-site training operations,
including both ground and flight training operations:
* * *
9. Any and all additional data and analysis [Camp] staff believe relevant to the County's efforts to prepare comprehensive plan provisions which assure the compatibility of the use of lands which are adjacent or closely proximate to [the Camp.]
County Ex. 9.(d) at 1, 2. The County asked the Camp to provide "all source documents, or appropriate references if the source information is readily available in the public domain." Id. at
The letter stressed that the Camp's help was essential: "Most of the above-listed information can only be provided by [the Camp], but is crucial in understanding the impacts which adjacent and closely proximate land uses can cause to [the Camp], and which may be impacted by [Camp] activities." Id.
On August 12, 2009, the County submitted to the Camp its most recent draft of policies designed to meet the mandate of section 163.3177(6)(a). In a cover letter, the County made reference to the earlier attempt at complying with the statute that led to the 2008 Amendment, the administrative proceeding that had ensued, and the June 18 Request. The outcome and the benefit of the earlier proceeding was described by the County:
Ultimately, the County elected to repeal the ordinance adopting the initial amendment, whereupon the administrative proceeding was dismissed. Through the discovery process, however, the County is confident it has
acquired all of the information reasonably available that is material and relevant to the development of a comprehensive plan amendment compliant with the requirements of the law.
County Ex. 9.(g). The County emphasized that the submitted draft of the policies were the results of its own study and analysis of the data obtained through discovery in the administrative proceeding and its own research. After mentioning the June 18 Request, the County wrote: "[t]o date, we have not received any information in response to that request." Id.
On August 25, 2009, the Camp provided information to the County (the "August 25, 2009 Letter) in response to the June 18 Request. With regard to the County's confidence in the data it had obtained in discovery and on its own and the existing data concurrently being provided by the Camp, the Camp wrote: "[the Camp] believes the information Clay County collected during the discovery process and that is being provided with this correspondence, may not sufficiently address the interests of [the Camp] and Clay County." County Ex. 9(i) at 2. The Camp announced that it had taken steps to fully evaluate impacts on the Camp from lands adjacent to it: "[The Camp] will execute contracts for the collection of data in conformance with Rule 9J-5.005, F.A.C., in October." The Camp implored the County not to proceed on the Amendment until the
Camp's "comprehensive study is completed and submitted to Clay County for analysis." Id. The cover letter concluded, "there will be further correspondence in reference to the Department of Military Affairs' funding studies that will provide additional up to date information to assist Clay County with the adoption of their Comprehensive Plan Amendment." Id. at 3.
The further correspondence referred to in the
August 25, 2009, Letter came with two updates to the 2005 SONMP: an update dated October 21, 2009 (the "October 21 Update") and a second update dated December 03, 2009 (the "December 03 Update").
Both updates concerned "noise."
Noise
The Military and Noise
Military installations frequently generate loud noises sensed by people outside installation boundaries. The noises may disturb people who sense them, particularly those who live where the noises reach them or who go to school or church in areas sensitive to military-generated noise. The noise can lead to complaints that rise through the ranks at military installations and reach as high as the Joint Chiefs of Staff and, in some cases, Congress, which funds the military. As would be expected, therefore, "[t]he United States Department of
Defense has been a staunch advocate of noise planning for many years." County Ex. 2 at 1-1.
There are many reasons for the military's concern about noise. Civilian communities that have developed in proximity to military installations since World War II have prompted the military's recognition of the value in noise management on and off the installations. Noise impact analysis is required by law, and the Department of Defense ("DOD") must comply with the Federal Noise Control Act of 1972 and the National Environmental Policy Act ("NEPA"). DOD policies and directives have been developed to assist in controlling claims in tort. The most compelling of the reasons in relation to this proceeding is the risk to military installations of the loss of their mission and reduction in their activities, particularly those related to training.
That risk is described in the 2005 SONMP, published in May of 2005:
[S]izeable new communities may grow up near an installation or existing communities may expand toward or around an installation's boundaries. This growth process can place severe limitations upon the ability of a military installation to support training and for assigned units to maintain an adequate level of readiness. As noise impacts from military activities increase upon the civilian communities, both litigation and/or political pressures that could result in degradation of the installation's mission also increase. Not
only do the numbers of complaints to installation commanders increase dramatically, but also the number of complaints to members of Congress.
As a consequence of adverse public reaction to military operations, some military installations have closed and others have had limitations placed upon the conduct of operations.
Joint Ex. 4, at 1-2. "In March of 2001, the Senior Readiness Oversight Council, chaired by the Under Secretary of Defense, concluded that: 'Encroachment on DOD ranges and training areas is a serious and growing challenge to the readiness of U.S. Armed Forces.'" Id. at 1-3.
The 2005 SONMP and the two updates, the October 21 Update and the December 03 Update, are the types of documents the Army publishes for local governments to use in land planning. They are good data for the County to use in amending its comprehensive plan. The County relied on them in adopting the Amendment.
The 2005 SONMP summarizes the noise environment at Camp Blanding:
Existing noise levels at CBJTC [the Camp] result from two primary sources: vehicular traffic and military training activities.
An Installation Compatible Use Zones ("ICUZ") study completed in 1984 indicated that the noise contours for the Impact Area extended off-post approximately 2.5 miles to the east and south during howitzer unit training. The primary source of the noise was the concussion (explosion noise)
generated by the 8-inch howitzer munitions in the Impact Area. The 8-inch howitzer units ceased training activities at CBJTC in 1994 and noise complaints from surrounding communities dropped significantly. Current noise from military activities is limited to ranges and helicopter training, with most of the noise originating in the Impact Area on the southern part of the post during weekends.
Joint Ex. 4 at 3-4. The 2005 SONMP provides analyses of large caliber weapons noise, demolition noise, small arms noise, aircraft noise, and noise effects on the surrounding community.
The potential for noise impacts of military operations are generally modeled to reflect two different noise metrics:
1) cumulative noise on the average day; and 2) peak or single event noise. Both are addressed by Army Regulation 200-1, Part
14 ("AR 200-1"). See Joint Ex. 3 at 43-44. The purpose of AR 200-1 is to set guidelines for evaluating the potential for annoyance or complaints resulting from the noise of military training.
Cumulative Noise on an average day is described as a day-night level ("DNL"), a measurement that reflects the level of noise experienced over a 24-hour period, with a ten decibel (10 dB) penalty added for noise experienced during the hours between 10 p.m. and 7 a.m. (or, in military parlance, 2200 hours and 0700 hours). The penalty is added to reflect the greater
annoyance to people associated with noise during time periods when they are trying to sleep.
DNL is determined by averaging daily cumulative noise over an integration period. While some government agencies use a 365-day integration period, AR 200-1 indicates that a 250-day integration period will typically be used for active military installations and 104 days will be used for Army Reserve and National Guard installations. This averaging period of less than a full year reflects recognition that there are periods of silence at a military installation when no training operations are occurring.
The military further describes DNL as either A-DNL or C-DNL. The former is used to characterize noise that falls within a frequency that humans can actually hear. The latter is used to characterize low frequency noise from blasts and other impulses not heard by the human ear because they occur at such low frequencies but that are felt through vibration.
Low frequency sound waves propagate along a single wave front. Unfelt outside a building, they can be sensed inside as the rattling of windows, movement of items, such as pictures on the wall, inside the house or movement of the house itself. When low frequency noise produces a noticeable vibration, a penalty is added to annoyance measurement of
approximately 10 decibels to reflect the additional annoyance generally associated with sensed impacts from the vibration.
With respect to A-DNL and C-DNL, both of which reflect average noise levels, AR 200-1 directs that noise-sensitive land uses such as housing, schools, churches, nursing homes, and medical facilities be "manage[d] as acceptable" within areas where the cumulative noise on an average day will be less than
65 A-DNL or 62 C-DNL, a zone referred to as Noise Zone I. Joint Ex. 3 at 44, § 14-4.a.(8) & Table 14-1.
There are also Noise Zones II and III determined by higher A-DNL or C-DNL. Housing and other noise-sensitive land uses such as schools, churches, and places where people dwell outside a military installation in Noise Zones II and III is incompatible with military installations. As Dr. Schomer testified: "If you have a Zone II or Zone III off of the installation, you want to discourage more housing in these areas (tr. 633) . . . Zone II [is] an area where . . . generally it's not suitable for housing [and other] noise-sensitive land uses but perhaps for other land uses [such as industrial]." Tr. 637.
Because military installations get complaints within Noise Zone I, AR 200-1 also establishes a subarea referred to as the Land Use Planning Zone ("LUPZ") defined as the area where aviation noise is between 60 and 65 A-DNL and impulsive noise is between 57 and 62 C-DNL. Joint Ex. 3 at 44, Table 14-1.
AR 200-1, however, provides that analyses of noise impacts cannot stop with identification of noise zones based on average noise; the more variable the noise environment, the less correlation there is between the average noise contours and reported annoyance. Annoyance associated with explosive noises, for example, does not correlate as well to average noise levels as it does with transportation-related noise because it tends to vary from day-to-day. AR 200-1, therefore, provides that complaint risk associated with training activity such as artillery, mortars, and demolition activities should be assessed in terms of a single event metric. One such metric, PK-15(met) "is the calculated peak noise level, without frequency weighting, expected to be exceeded by 15 percent of all events that might occur." Joint Ex. 3, § 14-4.a.(3) at 44. The metric remains the same regardless of whether the noise-generating activity occurs a single time or multiple times.
Research has shown that PK-15(met) from large caliber weapons that is below 115 decibels creates low risk of noise complaints from surrounding residents. Between 115 and 130 decibels, the risk is medium. At 130 decibels, which "really rocks the house," tr. 280, and above, noise from large caliber weapons create a high risk of complaints. Above 140 decibels, there is risk of physiological damage to unprotected human ears and damage to structures.
AR 200-1 provides that single event noise limits, characterized by PK 15(met), which relate to noise from large caliber weapons,
should be used to supplement the noise zones defined in Table 14-1 [the noise limits for noise zones I, II, III and the LUPZ], for land use decisions. Noise sensitive land uses are discouraged in areas where PK 15(met) is between 115 and 130 dB; medium risk of complaints. Noise sensitive land uses are strongly discouraged in areas equal to or greater than PK 15(met) = 130 dB; high risk of noise complaints. For infrequent noise events, installations should determine if land use compatibility within these areas is necessary for mission protection. In the case of infrequent noise events, such as the detonation of explosives, the installation should communicate with the public.
Joint Ex. 3 at 44, § 14-4.a.(9).
Complaints vs. Annoyance
As stated above, while noise complaints are related to annoyance, the correlation is not direct. People who are annoyed may not complain, and people who complain may or may not be annoyed. Dr. Schomer gave examples of communications from those who dwell or go to school or church near a military installation that are logged in as complaints but are more similar to inquiries.9/ Complaints that are from people who are highly annoyed are the types of complaints that make their way to Congress and lead to a reduction in the mission and training activities on military installations.10/
Data expressed in terms of a complaint metric, therefore, as found in the October 21 Update and the December 3 Update, are not necessarily determinative when it comes to impact to the military installation's mission. Noise contours based on a C-DNL metric, on the other hand, are determinative. Noise contours based on C-DNL deals with "annoyance and land use planning." Tr. 640. They are completely different from peak noise contours mapped in the two updates. Peak noise contours shown in the updates are "dealing with when you might get complaints," tr. 641, but not necessarily those that would reach the high levels of government.
Nonetheless, some of the data prepared and analyzed by the Army in the 2005 SONMP is expressed in terms of complaints rather than annoyance.
Some citizen complaints can adversely impact the ability of military installations to perform their mission. The 2005 SONMP describes the potential impact:
The usual complaint pattern is that economic activity unrelated to the installation stimulates increased population and development in the vicinity. Segments of the new population are not economically dependent on the installation, and tend to be annoyed by the noise or other aspects of the government presence. The noise from the ranges provides a specific and undeniable object to complain about. As time goes on, complaints are eventually addressed to higher levels of command and government.
When the situation becomes political, the installation's mission can be jeopardized.
Joint Ex. 4 at 2-17, § 2.7. In some cases, complaints have led to consequences to the military as extreme as base closures.
Each of the types of weaponry used at Camp Blanding has its own distinct noise impact. Over the years, as the types of weapons used have changed, the noise contour models (indicating the impact of noise from the Camp on surrounding lands) have also changed. "Depending on the size of the weapon and the number of rounds fired during the day and during the night, the contours in terms of C-weighted DNL grow or contract." Tr. 291. Compare Joint Ex. 5 at 3, Fig. 2 (reflecting the peak contours for weapons used at Camp Blanding between June 2008 and May 2009) to Joint Ex. 6 at 3-5, Fig. 2 and 3 (projecting complaint risk contours with and without 200 lb. charge at Camp Blanding during 2010).
The experience of the Camp with the noise complaints generated by the concussion from the 8-inch howitzers used in training at the Camp and the drop in complaints after the eight- inch howitzer units ceased training activities was confirmed in testimony at hearing from Jennings Murrhee, the former Sheriff of Clay County.11/ The testimony concerned noise levels resulting from Camp operations that exceeded 140 decibels. A
study conducted at the house of Sheriff Murrhee found that the peak noise was 144 decibels.
The Army recognizes that levels above 140 decibels result in risk of physiological damage to unprotected human ears and possible structural damage. The Army does not intend that off-post properties should experience such noise. The 2005 SONMP provides guidelines based upon 10 years of research, and representing "the best compromise between cost, efficiency of range operations, and good community relations." Joint Ex. 4 at 2-11. Also see id., Table 2-1.
The Impulse Noise Guidelines provided by the 2005 SONMP appear in Table 2-1 on page 2-11 of the SONMP. In addition to the threshold for permanent physiological damage to unprotected human ears and high risk of physiological and structural damage claims, the table contains the three other ranges of levels for risk of complaints discussed above. Below
115 decibels, there is a risk of low complaints and the guideline for "action" is "[f]ire all programs." Id. From 115 to 130 decibels there is a moderate risk of complaints. The guideline for action is "[f]ire important tests. Postpone non- critical testing, if feasible." Id. At the level of 130 to 140 decibels, noise leads to an action guideline of "[o]nly extremely important tests should be fired." Id.
The 2005 SONMP Conclusions
The 2005 SONMP draws the following conclusions after its discussion of the various generators and types of noise at the Camp:
Noise-sensitive receptors include the on- post residential community of Kingsley and the off post residential community that borders the northeastern boundary of [the Camp.] There are no schools, churches or hospitals located within the immediate vicinity of [the Camp]. The Kingsley community is located approximately 1 mile from the Impact Area and the Firing Points in the east central portion of the post.
Several landing zones and one range are located within 1 mile of the residential community that borders the northeastern boundary of [the Camp] (Snyder 2000). The annual average noise contours for operations at [the Camp] are compatible with Federal Guidelines (FICUN 1980). But the personnel at [the Camp] realize that occasional loud noise events can annoy the neighbors. By having a Noise Management Program in place which addresses neighbors' concerns, complaints should be able to be kept to minimal levels.
Joint Ex. 4 at 3-12, §3.6 (emphasis added). The 2005 SONMP conclusions were updated in October and December of 2009.
The October 21 Update
The purpose of the October 21 Update is "[t]o provide updated operational noise contours for Camp Blanding." Joint Ex. 5, first page (un-numbered). The updated contours for demolition and large caliber operations are based on operational activity from June 2008 to May 2009.
The results of the updated demolition and caliber contours were reported as follows:
. . . The . . . LUPZ extends beyond the eastern boundary less than 1,000 meters. The Noise Zone II . . . and Noise Zone III
. . . contours do not extend beyond the boundary.
. . . The moderate complaint risk contour (PK15(met) 115 dB) extends beyond the eastern and western boundaries. The high complaint risk contour (PK15(met) 130 dB) does not extend beyond the boundary. The contours indicate a moderate probability of receiving noise complaints.
Army Regulation 200-1 . . . states that noise-sensitive land uses are acceptable within the LUPZ and the Noise Zone I, not normally recommended in Noise Zone II, and not recommended in Noise Zone III (U.S. Army 2007). Land use surrounding Camp Blanding varies from undeveloped to residential. The existing noise environment and existing surrounding land use are compatible.
Joint Ex. 5 at first page (un-numbered) and at 4, (emphasis added).
Expressly recognizing that although the existing operating environment at the Camp (based on the data between mid-2008 to mid-2009) did not generate Noise Zones II or III contours beyond the Camp's boundary, the October 21 Update reached the conclusion that "the operations at Camp Blanding have the potential to generate noise complaints." Id. at 4. Despite such a potential, the October 21 Update recommended no guidelines. Consistent with its description of Noise Contour
Results for Demolitions and Large Caliber Weapons and its finding of compatibility between the "existing" noise environment and "existing" surrounding land use, the update recommended that the Camp do no more than "continue its operational noise management and outreach programs, to inform the public of possible noise from training." Id.
The December 03 Update
The October 21 Update concerned operational noise contours based on activity that occurred at Camp Blanding. Camp Blanding requested the development of peak operational noise contours to include "projected future operations." Joint Ex. 6, para. 2. To honor the request, the December 03 Update's purpose is to develop "projected operation contours" that "depict areas of complaint risk under full range utilization." Id.
In addition to operations conducted from June 2008 to May 2009 as depicted in the October 21 Update, the December 03 Update contours include firing of the Multi-Launch Rocket System (MRLS) from northern artillery firing points, activity on the north demolitions range, and additional 155 mm howitzer firing. These inclusions caused the complaint risk contours to be extended beyond the contours shown in the October 21 Update.
The moderate complaint risk contour, PK15(met) 115 dB, in the December 03 Update, "extends beyond the eastern and western boundaries." Id. at 3. The high complaint risk contour,
PK15(met) 130 dB, "extends slightly beyond the northeast boundary," id., into an area that appears to be entirely within an area designated RP (the Satsuma Tract) with the slight possibility that some of the area may extend into an area designated AG.
The December 03 Update also considered the consequences of pre-deployment training by an engineering battalion "which will require the emplacement and detonation of a 200-lb charge." Id. With that addition, the high risk complaint contour continued to extend slightly beyond the northeast boundary but the moderate risk complaint contour extends over significantly more area outside the boundary both to the east and the west of the Camp. Compare Figure 2 in Joint Ex. 6 (complaint risk contours without 200 lb charge) to Figure
3 (complaint risk contours with 200 lb charge).
The December 03 Update contains the following with regard to single event noise levels:
d. Per Army Regulation (AR) 200-1, single- event noise levels should be used to supplement the noise zones for land use decisions. . . . For infrequent noise events, installations should determine if land use compatibility within these areas is necessary for mission protection.
Joint Ex. 6 at 3.
The December 03 Update re-iterated the earlier conclusion that existing operations have potential to generate
noise complaints. As for the projected operational levels from the MRLS, activity on the northern demolitions range, firing of
155 mm howitzers, and the detonation of any 200 lb charge, if realized: "The moderate complaint risk contour . . . extends beyond the eastern and western boundaries. The high complaint contour . . . extends beyond the northeast boundary [into an area designated RP and known as the Satsuma Tract with the slight possibility that it may also extend into an area designated AR.]" Id. The update concluded:
Existing operations at Camp Blanding have the potential to generate noise complaints. If projected future operational levels are realized, areas surrounding Camp Blanding receiving noise levels associated with moderate to high compliant risk will increase.
Id.
Figure 3 in the December 03 Update relates to the
detonation of a 200 lb charge. It was criticized by Dr. Schomer because it "poses a hypothetical non-existent weapon as something that's going to be creating noise perhaps sometime in the future." Tr. 643.
Lighting
In addition to land use compatibility related to noise, the Camp identified nighttime lighting as an issue. On October 10, 2008, the Camp provided the following lighting- related recommendation related to the County's prior amendment.
Lighting Plan - The adopted amendment is silent with regards to an area lighting standard. Any proposed lighting standard must address any distractions that would negatively impact the training of military pilots within a designated area around [the Camp]. For the safety of our pilots, the County must require lighting standards that limit artificial lighting, floodlights, search lights or any lighting that would be misleading or dangerous to aircraft operating within a designated area around [the Camp].
Proposed Language: "Lighting within the designated area of influence must be fully shielded from positive optical control so that all light emitted by fixtures, either directly from the land or indirectly from the fixture, is projected below a horizontal plane extending from the bottom of the light fixture." In addition, a lighting plan must be required prior to issuance of a building permit.
County Ex. 8(a) at 1-2. The Camp recommended a three-mile "area of influence" beyond the installation boundary, but did not explain whether the three miles related to lighting-related impacts or other impacts. During the prior proceeding regarding the 2008 Amendment, the County also received deposition testimony from a Camp witness that the lighting problems were related to flight operations. The County requested additional information from the Camp with regard to lighting standards and the aerial extent to which they should apply but did not receive any additional information.
The 2005 SONMP contains a general "Aviation Safety" section, although it does not relate to Camp Blanding. Specifically, as to lighting, the 2005 SONMP lists the following as potentially hazardous to aircraft operations:
Objects that produce light emissions, either direct or indirect (reflective), which could interfere with the vision of aircrew members. Some examples are high intensity strobe lights, extensive areas of glass such as those found in many modern office buildings, and highly reflective artificial surfaces.
Joint Ex. 4 at 2-15. With regard to Camp-specific information, the 2005 SONMP included a copy of the CARS map and noted that flights maintain a minimum of 500 feet above Mean Sea Level (MSL), when within 20 miles of the Camp, and 1,000 feet above the surface or highest obstacle over congested areas. The 2005 SONMP also noted that only 21 helicopter operations occurred at night during Fiscal Year 2001. However, no data or analyses were included which indicated the extent of area to which additional lighting standards should be imposed, nor what the standards should contain.
As to lighting, the draft of the Amendment required the County to adopt "lighting standards that limit artificial lighting, floodlights, search lights or any lighting that would be misleading or dangerous to aircraft operating within the CARS (as shown on the Impact Area Map)." Id. at 5, Policy 10.6.
Additionally, the draft policy imposed standards that related to shielding of light and positive optical control so as to reduce distractions to training pilots. The only lighting-related information concerned energy efficiency and sustainability, not the standards used for protecting training operations. The Camp's October 28, 2009, letter to the Department commenting on the by-then Transmittal Amendment contained no comment on lighting standards. Camp staff testified at both the
September 1, 2009, Planning Commission and September 22, 2009, Board of County Commissioners public hearings prior to approval of the Transmittal Amendment, and did not present any comments related to the lighting policy. The consultant's land use compatibility study presented in draft by the Camp on
December 1, 2009, and in final on December 8, 2009, contained only the same energy-efficiency and sustainability standards as had been provided in the Camp's August 25, 2009, letter. Camp staff testified at the December 8, 2009, Board of County Commissioners adoption hearing, but did not comment on the lighting policy.
The information available to the County indicated that the CARS represented the flight patterns at the Camp, and that helicopters flew at a minimum of 500 feet when outside the Camp. The County responded by drafting a policy imposing lighting restrictions within those flight patterns, and
requested comments. The Camp did not comment or provide data and analysis which suggested the policy's inadequacy. The County responded reasonably and appropriately to the data and analysis available on the date the Amendment was adopted.
Structure Height
Also included in the 2005 SONMP as a potential aviation safety issue is "obstruction height criteria." In the general section of the 2005 SONMP, the following description of possible obstructions to air navigation is provided:
Construction of towers within the training area vicinities directly affects aircraft procedures and indirectly impacts upon the local community. Towers present an air navigation hazard that must be avoided by aircraft for safety reasons. The improper location of tower sites may result in change of flight procedures such as rerouting air corridors and routes, alteration of departure/landing directions and traffic patterns or closure of remote landing sites. These alterations could result in an increased noise impact upon the local community.
The only Camp-specific information relative to aircraft operations in the 2005 SONMP about aviation routes is a reduced version of the CARS map.
In its June 18, 2009, letter to the Camp requesting data and analysis to prepare the amendment, the County
requested:
Information describing any and all Camp Blanding flight operations which differ or
have differed in geographic area, frequency and/or other flight characteristics than those described on the Corridor and Routing System (CARS) June 2000 map and the May 2005 [SONMP] prepared [sic] [CHPPM].
As set forth in paragraph 63 above, the County also asked for supporting materials, and stated that the information was crucial to its preparation of the Amendment.
The County included draft policies related to building heights and structure heights in the draft Amendment sent to the Camp on August 12, 2009. The policies establish building and tower height restrictions within the known flight corridors - - the CARS area. A presumed building height of up to 35 feet for buildings and up to 100 feet for towers is authorized. To exceed those heights, the owner would need to obtain a special permit. The Camp would be provided an opportunity to comment on the permit application, and the permit would only be issued if the structure or tower did not endanger Camp flights.
Neither the August 25, 2009, letter from the Camp, nor the December 8, 2009, consultant's land use compatibility study contained any information related to flight operations. The County took the extra step of confirming with the Camp that no flight information had been included in the August 25, 2009, letter. The October 28, 2009, letter from the Camp to the Department, commenting on the Transmittal Amendment did not
mention the policies related to building or tower height, nor did the Camp staff comment at the various public hearings related to the Amendment regarding such matters.
The County did not receive data about heights. The Camp had expressed a preference for a 35-foot limit for building, but landowners in the area had pointed out that 65- foot power lines currently exist in the CARS, apparently without problems, and questioned why a 35-foot structure limitation was necessary. The County responded reasonably and appropriately to the data available on the date of the adoption of the Amendment.
Dust, Smoke, and Airborne Emissions
The 2005 SONMP also generally describes other possible obstructions or hazards to aircraft operating at military installations, including:
Activities that release substances into the air, such as particulates, dust, or smoke, which can impair the visibility of aircrew members. Some examples of such activities are industrial plants, refineries, quarries or gravel pits.
Joint Ex. 4, at 2-15. There is no mention of the types of such conditions, however, which might specifically apply to the Camp, nor did any of the comment letters or testimony from the Camp described above express specific concerns about such possible conditions. At the final hearing, Petitioners' witnesses opined
that the Amendment was inadequate for not restricting dust and smoke producing land uses, such as mines.
Such land uses have been present around and within the Camp for decades. Timber and agricultural operations produce smoke from controlled burns. Conservation lands owned by the Water Management District and other landowners also are subjected to controlled burns. An active sand mine is operating on lands adjacent to the Camp. DuPont operated a mine on the western side of the Camp for decades. These operations have not adversely affected helicopter operations in the past 30 years.
With regard to dust, smoke and other airborne emissions, the County responded reasonably and appropriately to the data available on the date of adoption of the Amendment.
Wildlife Impacts and Electromagnetic Interference
There was no data made available to the County at the time of the Amendment that supported compatibility criteria with regard to wildlife impacts and electromagnetic interference.
CONCLUSIONS OF LAW
Jurisdiction and Standing
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. §§ 120.569, 120.57, and 163.3184(9), Fla. Stat.
To have standing to petition or intervene in a proceeding on the Department's intent to find a comprehensive
plan amendment in compliance, one must be an "affected person," as defined in section 163.3184(1)(a), Florida Statutes.
Petitioners are "affected persons" and meet the standing requirements of section 163.3184(9)(a), to bring the petition that initiated this proceeding.
The parties have stipulated that the Intervenors own property in Clay County near Camp Blanding and that comments related to the Amendment were timely submitted to the County on behalf of the Intervenors. The intervenors have standing.
The Statutory Framework
Section 163.3177(6)(a) provides, " . . . [t]the future land use plan element shall include criteria to be used to achieve the compatibility of lands adjacent or closely proximate to military installations, considering factors identified in s. 163.3175(5) "
Section 163.3175(5), provides:
The commanding officer or his or her designee may provide comments to the affected local government on the impact such proposed changes may have on the mission of the military installation. Such comments may include:
If the installation has an airfield, whether such proposed changes will be incompatible with the safety and noise standards contained in the Air Installation Compatible Use Zone (AICUZ) adopted by the military installation for the airfield;
Whether such changes are incompatible with the Installation Environmental Noise Management Program (IENMP) of the United States Army;
Whether such changes are incompatible with the findings of a Joint Land Use Study (JLUS) for the area if one has been completed; and
Whether the military installation's mission will be adversely affected by the proposed actions of the county or affected local government.
Section 163.3177(6)(a) sets June 30, 2012, as the deadline for the transmission by local governments to the Department of comprehensive plan amendments that include required military installation compatibility criteria. Once received, the Department conducts an "in compliance" determination.
"'In compliance' means consistent with the requirements of [s]. 163.3177 . . . and with Chapter 9J-5, Florida Administrative Code . . . ." § 163.3184(b), Fla. Stat.
Standard and Burden of Proof
"In this proceeding [because the Department issued a notice of intent to find the Amendment in compliance], the . . . [Amendment] shall be determined to be in compliance if the local government's determination of compliance is fairly debatable."
§ 163.3184(9)(a), Fla. Stat.
"The fairly debatable standard is a highly deferential standard requiring approval of a planning action if reasonable persons could differ as to its propriety." Martin v. Yusem, 690 So. 2d 1288, 1295 (Fla. 1997). The Court elaborated on its definition of the standard: "in other words, 'an ordinance may be said to be fairly debatable when for any reason it may be said to be open to dispute or controversy on grounds that make sense or point to a logical deduction that in no way involves its constitutional validity." Yusem, 690 So. 2d at 1295, citing to City of Miami Beach v. Lachman, 71 So. 2d 148,
152 (Fla. 1953). In following Yusem, the Fourth District Court of Appeal has held, 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 Cty. v Section 28 P'ship, Ltd., 772 So. 2d 616 (Fla. 4th DCA 2000).
The fairly debatable standard applies to the ultimate determination of whether the Amendment is in compliance or not. In contrast, a preponderance of the evidence is the standard of proof applicable in this proceeding to finding facts. Sierra
Club v. Dep't of Cmty. Affairs, Case No. 03-0150GM (Fla. DOAH June 16, 2006; Fla. DCA Sep. 12, 2006).
The party bearing the burden of proof is determined by the statutory framework that governs the proceeding. See
Young v. Dep't of Cmty. Affairs, 625 So. 2d 831, at 834-845 (Fla. 1993). That party typically is the party asserting the affirmative of the issues framed by the pleadings. Florida Dep't of Transp. v. J.W.C. Co., 396 So. 2d 778, 788 (Fla. 1st DCA 1981). The burden is on Petitioners to prove beyond fair debate that the Amendment is not in compliance.
Military Installation Compatibility Criteria
Section 163.3177(6)(a) requires that future land use elements "include criteria to be used to achieve the compatibility of lands adjacent or closely proximate to military installations . . . ." The deadline for transmitting comprehensive plan amendments that address this requirement is June 30, 2012.
Rule 9J-5.006(3)(c)2. imposes the general requirement that comprehensive plans address compatibility of adjacent land uses. Section 163.3177(6)(a) takes a step further in the case of military installations. It mandates the inclusion of "criteria" to ensure compatibility of lands adjacent or closely proximate to military installations.
The criteria adopted by the County appear in the future land use elements' policies. Rule 9J-5.005(6) requires that goals, objectives and policies in future land use elements:
Establish meaningful guidelines and predictable standards for the use and development of land and provide meaningful
guidelines for the content of more detailed land development and use regulations.
Thus, section 163.3177(6)(a), should be interpreted to require local governments to adopt meaningful and predictable standards and meaningful guidelines to be used in assessing the compatibility of the proposed uses of lands adjacent or closely proximate to military installations.
Section 163.3177(6) does not expressly identify the nature of the compatibility criteria that are to be adopted. Section 163.3175, however, provides the following statement of legislative intent:
The Legislature finds that incompatible development of land close to military installations can adversely affect the ability of such an installation to carry out its mission. The Legislature further finds that such development also threatens the public safety because of the possibility of accidents occurring within the areas surrounding a military installation. In addition, the economic vitality of a community is affected when military operations and missions must relocate because of incompatible urban encroachment. Therefore, the Legislature finds it desirable for the local governments in the state to cooperate with military installations to encourage compatible land use, help prevent incompatible encroachment, and facilitate the continued presence of military installations in this state.
§ 163.3175(1), Fla. Stat.
That assessment of compatibility and adoption of criteria, of course, depends on the best, available data at the time of the amendment and analysis of the data.
Lighting and Structure Height
The Amendment's criteria with regard to lighting and structure height, based on the data available to the County at the time of the Amendment and the analysis of that data, are sufficient to ensure compatibility required by section 163.3177(6)(a).
Dust, Smoke, Other Airborne Emissions, Wildlife Impacts, and Electromagnetic Interference.
The Amendment's lack of criteria with regard to dust, smoke, and other airborne emissions is justified by the data available to the County at the time of the Amendment and the analysis of that data.
There were no data made available to the County with regard to wildlife impacts outside the Camp and electromagnetic interference at the time of the Amendment. The Amendment's lack of criteria with regard to wildlife impacts and electromagnetic interference was an appropriate response on the part of the County.
Noise
There were data available to the County at the time of the Amendment and analysis that without more indicated the
need for criteria to achieve compatibility of land uses as required by the statute. For example, AR-200-1 (quoted above in paragraph 87), states that noise sensitive land uses are discouraged in areas where PK 15(met) is between 115 and 130 dB and are strongly discouraged in areas where it is higher than
130 dB. The December 03 Update contains noise contours with these parameters that reach areas outside the Camp.
Until the December 03 Update, analysis of the data led to recommendations of no more than the promotion of providing the public with information related to possible noise generated by training activities. See the October 21 Update.
The December 03 Update, however, analyzes data to conclude that if projected levels of operations occur the risks of complaints will increase.
Dr. Schomer's criticism of the hypothetical nature of these operations subjects the need for criteria to debate. More importantly, the complaint metrics data provided in the update are not necessarily determinative of the need for compatibility criteria since it is the level of annoyance, rather than the risk of complaints, that determines that need. This conclusion can be drawn from the testimony of Dr. Schomer, from the testimony of Dr. Luz in which he makes reference to "high annoyance" as leading to mission loss and from the testimony of Sheriff Murrhee which confirms that complaints reach high levels
of government and pose the threat of mission loss for a military installation when noise is generated into noise-sensitive areas in excess of 140 dB.
There were no "annoyance" data available to the County that indicated a level of annoyance outside the Camp generated by Camp operations and activity which would require compatibility criteria pursuant to section 163.3177(6)(a). Based on the record in this case, it is fairly debatable that a risk of higher complaints is not enough to require compatibility criteria and that there is no requirement for such criteria in the absence of annoyance data that demonstrates risk of mission loss. The County's determination that the Amendment is in compliance is appropriate in light of the noise data available to it at the time of the Amendment and the analysis of that data provided in this proceeding.
The Amendment is consistent with sections 163.3177(6)(a) and 163.3177(8) rules 9J-5.005 and 5.006.
Conclusion
The Department issued a notice of intent to find the Amendment in compliance. The local government's determination of compliance is fairly debatable. See § 163.3184(9)(a), Fla. Stat. The Amendment should be determined to be "in compliance."
Recommendation
Based on the findings of fact and conclusions of law, it is recommended that the Department of Community Affairs enter a final order that determines Clay County Comprehensive Plan Amendment 09-1MIL to be "in compliance."
DONE AND ENTERED this 25th day of January, 2011, in Tallahassee, Leon County, Florida.
S
DAVID M. MALONEY
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 25th day of January, 2011.
ENDNOTES
1/ All references to the Florida Statutes are to 2009 unless indicated otherwise.
2/ The Ordinance has several attachments of amendments. This proceeding concerns the language in Attachment B, which will be referred-to in this order as "the Amendment."
3/ Subsection (8) requires all elements of a comprehensive plan to "be based upon data appropriate to the element involved."
4/ See Petitioners' Proposed Recommended Order at 2 and the Joint Prehearing Stipulation at 27, para. 48-52.
5/ The NOI attached as Exhibit "A" to the Petition for Formal Administrative Hearing shows the NOI was published in the Florida Times Union on January 29, 2010.
6/ The Impact Area Map, attached to "Attachment B" of the Amendment, is entitled "Camp Blanding Overlay." Petitioners refer to it: "the Overlay Map." It will be referred to in this order as the Amendment refers to it: "the Impact Area Map."
See Joint Ex. 1.
7/ Either the word "and" should have been left out of the objective so that it refers to "a high degree of intergovernmental communication" or the word "coordination" was inadvertently omitted from the amendment. It is more likely that the word "coordination" was omitted. See tr. 431.
8/ See § 163.3175(9), Fla. Stat.
9/ "We heard this loud noise. What are you guys doing?" Tr. 636. Or "You broke my window. Are you annoyed? No, we like what you are doing. But you broke my window. I just want you to fix it." Id.
10/ The level of annoyance that the military seeks to avoid was emphasized by Dr. Luz in his testimony:
People who are highly annoyed complain. If there's enough people highly annoyed who complain, then there is the likelihood, if the military cannot satisfy them, there's a likelihood that they will complain to their congressman. If they complain to their congressman, the commander of the installation is likely to get what's called a congressional inquiry, a formal letter.
* * *
So, in order to avoid these congressional inquiries, which in turn, we know, lead to the loss of training, the Army wants to minimize the impact of sound, the sound of training on the people who are their neighbors.
Tr. 253.
11/ Sheriff Jennings Murrhee, former Sheriff of Clay County testified as follows:
Q And you might have heard them talking about some incidents at your house resulting from some Howitzer fire. Could you tell us briefly what happened with that?
A Yes. They were shooting over in Camp Blanding 8-inch Howitzer shells and 4-inch. Well, the 8-inch was tearing up my buildings and my house. It knocked the light fixture out of the wall down on the floor, cracked the windows, busted blocks in my house.
I complained to the State of Florida and to the federal government. And Colin Powell was secretary of state at that time. He sent three people down to investigate my complaint. And they found out and saw what was happening to not only my structures, but other structures. Even the church and the building broke windows out.
So what they did, they issued an order for them not to shoot anymore 8-inch shells. And they shot the 4-inch shells. And now we get a boom or a little noise every now and then a little rattle, but we don't complain about it. We can live with that.
But when it begins to tear up your structure, then something needed to be done. Which they did. And they paid me for helping to repair the damage they had done to my home.
Tr. 546-47.
COPIES FURNISHED:
Martha Chumbler, Esquire Danny Hernandez, Esquire Carlton Fields, P.A. Post Office Box 190
Tallahassee, Florida 32302-0190
Elizabeth C. Masters, Esquire Florida National Guard
Post Office Box 1008
St. Augustine, Florida 32085-1008
Mark H. Scruby, Equire Clay County Attorney Post Office Box 1366
Green Cove Springs, Florida 32043-1366
Marcia Parker Tjoflat, Esquire John R. Campbell, Esquire
Pappas, Metcalf, Jenks & Miller, P.A.
245 Riverside Avenue, Suite 400 Jacksonville, Florida 32202
Lynette Norr, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard
Tallahassee, Florida 32399-2100
T.R. Hainline, Esquire Paige Johnston, Esquire Emily Pierce, Esquire Rogers Towers, P.A.
1301 Riverplace Boulevard, Suite 1500
Jacksonville, Florida 32207-9000
Billy Buzzett, Secretary Department of Community Affairs
2555 Shumard Oak Boulevard, Suite 100
Tallahassee, Florida 32399-2100
Jim Richmond, Acting General Counsel Department of Community Affairs
2555 Shumard Oak Boulevard, Suite 325
Tallahassee, Florida 32399-2160
NOTICE OF RIGHT TO SUBMIT EXCPETIONS
All parties have the right to submit written exceptions within
15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.
| Issue Date | Document | Summary |
|---|---|---|
| Oct. 27, 2011 | Amended Agency FO | |
| May 10, 2011 | Agency Final Order | |
| Jan. 25, 2011 | Corrected RO | Corrected as to numbering of paragraphs. |
| Jan. 24, 2011 | Recommended Order | It is "fairly debatable" that Clay County, over Camp Blandings objections, re-acted appropriately to data and analysis in adopting its military installation Amendment to Clay County Comp. Plan. Amendment is in compliance. |
