Findings Of Fact Wigwam, Inc., the developer of Residence Inn Resort, is the present equitable owner of the subject parcel and is the successor to the development authorizations for a proposed hotel and marina. The subject parcel is a tract of land located at Mile Marker 52.4, on U.S. 1, on a portion of Government Lot 2, in Section 6, Township 66 South, Range 33 East, on Key Vaca, Marathon, Monroe County, Florida. The subject parcel consists of 4.82 acres of land above water located between U.S. 1 and the Atlantic Ocean. Located within the subject parcel is a dredged harbor at least 8 feet deep below mean sea level at mean low tide. On January 23, 1986, the Monroe County Commission by resolution designated the entire subject parcel Destination Resort (hereinafter "DR"). Petitioner offered no evidence to show that the Department of Community Affairs received a copy of that resolution or that the Department was aware of that resolution. The Department did not appeal the "DR" designation on that parcel of property as a development order, pursuant to Section 380.07(2), Florida Statutes. The current Monroe County Comprehensive Plan, Land Development Regulations, and Land Use Maps were adopted by the Monroe County Commission on February 28, 1986, by Resolution No. 049-1986. Those Land Use Maps showed the land use designation for the subject parcel as "DR" along the Atlantic Ocean and "SR" (Suburban Residential) along U.S. 1. The discrepancy between the January 23, 1986, Monroe County resolution and the final Land Use Maps adopted by Resolution No. 049-1986 was the result of an error made by Monroe County staff before transmittal of the Land Use Maps to the Department of Community Affairs and the Administration Commission. Petitioner offered no evidence to show that the Department of Community Affairs knew or should have known that the Land Use Maps transmitted to the Department contained a clerical error regarding the subject property. The current Monroe County Comprehensive Plan, Land Development Regulations, and Land Use Maps were approved by the Department of Community Affairs and the Administration Commission on July 29, 1986, and became effective on September 15, 1986. Since the adoption of the current Land Use Maps, the oceanward three- quarters of the subject parcel has been designated "DR" and the landward one- quarter of the subject parcel has been designated "SR". Land Use Map Amendment No. 100, adopted by the Monroe County Board of County Commissioners on November 18, 1987, and rejected by the Department of Community Affairs, which is the subject of this rule challenge, would redesignate the entire subject parcel "DR". Proposed Rule 9J-14.006, Florida Administrative Code, contains the Department of Community Affairs' determination approving and rejecting several Monroe County ordinances which amend the Monroe County Land Use Maps as to hundreds of parcels of land and which amend other Monroe County Land Development Regulations. As part of that proposed rule, Land Use Map Amendment No. 100 is rejected by the Department of Community Affairs. The Petition filed in this cause challenges the proposed Rule only as it relates to the subject parcel. Although Land Use Map Amendment No. 100 is intended to correct Monroe County's clerical error by reflecting that the entire subject parcel is designated "DR," it presents to the Department of Community Affairs a different designation than that previously approved by the Department, i.e., it changes the "SR" designation for the landward one-quarter of the subject property which was approved by the Department of Community Affairs and the Administration Commission to a designation of "DR," which change in designation is rejected by the Department of Community Affairs as part of proposed Rule 9J-14.006, Florida Administrative Code. The Development Order under appeal in the companion case, Planning Commission Resolution No. 13-87, approves a major conditional use for the subject property utilizing the "DR" designation by allowing construction of a 96-unit hotel resort and utilization of the harbor within the subject property's boundaries as a marina. Section 380.0552, Florida Statutes, requires any amendment to the Monroe County Comprehensive Plan, Monroe County Land Development Regulations and Land Use Maps to comply with the following principles for guiding development: To strengthen local government capabilities for managing land use and development so that local government is able to achieve these objectives without the continuation of the area of critical state concern designation. To protect shoreline and marine resources, including mangroves, coral reef formations, seagrass beds, wetlands, fish and wildlife, and their habitat. * * * To protect the value, efficiency cost-effectiveness, and amortized life of existing and proposed major public investments, including: * * * 3. Solid Waste collection and disposal facilities. * * * The dredged harbor on the subject parcel is at least 8 feet deep. However, just oceanward of the project boundary, the undredged ocean bottom shoals to less than 4 feet at mean low tide. This area is more than 4 feet deep measured from mean sea level. A marina is permitted as a major conditional use in a "DR" resort district provided that, "the parcel proposed for development has access to water of at least 4 feet below mean sea level at mean low tide." Section 9- 213.B.2.a., Monroe County Land Development Regulations. The Land Development Regulations define the phrase "water of at least 4 feet below mean sea level at mean low tide" to mean locations that will not have a significant adverse impact on off-shore resources of particular importance. For the purposes of this definition, off-shore resources of particular importance shall mean . shallow water areas with natural marine communities with depths at mean low tide of less than four (4) feet ... Section 3-101.W-1., Monroe County Land Development Regulations. The shallow water area just oceanward of the project boundary is comprised of a natural marine community of seagrass beds. The dominant species is turtle grass, also known as Thallassia. The harbor within the subject parcel does not have access to water of at least 4 feet below mean sea level at mean low tide. The shallow water area between the marina and open water is covered with a natural marine community with a depth at mean low tide of less than 4 feet, and it has not been demonstrated that access to open water from the proposed marina can be achieved without significant adverse impact to that natural marine community. The "DR" designation allows, and often times contemplates, a marina within the resort. Section 9-213.B.2., Monroe County Land Development Regulations. The expansion of the "DR" designation where a marina could only be constructed in violation of the Land Development Regulations does not comply with principle for guiding development (b). Any development constructed on the subject parcel will utilize the Long Key Solid Waste Facility, which has a maximum capacity of 3 to 4 years. The increase in density between "SR" and "DR" will decrease the expected life span of the facility. The increase in density will not comply with principle for guiding development (h)3., which encourages protection of ... the value, efficiency, cost-effectiveness, and amortized life of existing and proposed major public investments, including solid waste collection and disposal facilities." As used in the Monroe County Land Development Regulations, a destination resort is a hotel complex that includes more amenities and facilities than an ordinary hotel. These amenities and facilities are so attractive that guests tend to spend more time on-site and, therefore, have less impact off-site. Because of these reduced impacts, destination resorts have the highest maximum net density of any Monroe County land use designation. The Monroe County Land Development Regulations state that the purpose of the "DR" district ... is to establish areas suitable for the development of destination resorts. Destination resorts are contemplated to be located on sites of at least 10 acres except where the location and character of the site or the development itself is such that off- site impacts will be reduced. Section 9-114, Monroe County Land Development Regulations. The subject parcel, at less than half of the normal 10 acres, is not large enough to include all the amenities that are necessary for a destination resort. In the companion Section 380.07 appeal of the development order, Wigwam, Inc., the developer of Petitioner in this case, attempted and failed to demonstrate that a proposed 96-room hotel could include enough amenities to reduce off-site impacts to the extent required by the Monroe County Land Development Regulations. Approval of the proposed map amendment would continue and expand an improper land use designation for the parcel owned by Wigwam, Inc. Even the expanded designation is not large enough to support a destination resort, and Wigwam, Inc., failed to show that off-site impacts will be reduced. This continuation of an improper land use designation would not comply with principle for guiding development (a) which seeks "[t]o strengthen local government capabilities for managing land use and development so that local government is able to achieve these objectives without continuation of the area of critical state concern designation.
The Issue The issue in this case is whether the Hardee Power Station and its associated facilities, including the corridors for the directly associated transmission lines and the natural gas pipeline, should receive certification.
Findings Of Fact Ultimate Site Capacity for Hardee Power Station Project The site for the proposed Hardee Power Station electric generating equipment is a 1,300 acre site located at the Polk and Hardee County lines approximately 9 miles northwest of the City of Wauchula in Hardee County. The Hardee Power Station electrical generating structures will be located primarily in Hardee County; a major portion of the 570 acre cooling reservoir is located in Polk County. Co-applicants have proposed in their Site Certification Application an ultimate nominal capacity of 660 megawatts, and certification of the electric generating equipment, associated cooling reservoir, associated natural gas pipeline, and three associated transmission lines, described in paragraphs 2 through 7 above. In March of 1989, the Florida Public Service Commission issued an initial need order based on SECI's application for a need determination for construction of two 220 megawatt combined cycle facilities. The PSC order confirmed the following: 1) SECI's need for 450 megawatts of back-up generation capacity; 2) the three interconnection points for the three 230 kV transmission lines; and 3) that a combined cycle plant was SECI's least costly alternative to constructing this electric generation capacity. Thereafter, SECI contracted with Teco Power Services Corporation for, among other things, the construction of the combined cycling units. In December of 1989, the PSC issued a final need order. Hardee Power Station Project Co-applicants propose to construct and operate a combined cycle power plant and associated transmission lines and natural gas pipeline facilities. The Hardee Power Station project will consist of combined cycle electric generating facilities with an ultimate nominal capacity of 660 megawatts to be constructed in two phases. In phase 1-A, one 220 megawatt (nominal) combined cycle unit will be built along with one 75 megawatt (nominal) combustion turbine, resulting in a total of 295 megawatts (nominal), to begin commercial operation in January of 1993. In phase 1-B of the project, an additional 75 megawatt (nominal) combustion turbine and a 70 megawatt (nominal) heat recovery steam generator will be added to the facility resulting in an additional 145 (nominal) megawatt combined cycle facility, the capacity of which is scheduled to be on line in January of 2003. Phase 2 of the project is the addition of a third 220 megawatt (nominal) combined cycle facility at an unspecified future date. Associated with the Hardee Power Station electrical generating plant will be a cooling reservoir to cool the steam in the heat recovery steam generator so that water can be reused in the system. The cooling water will be returned to the reservoir which is designed to discharge water in excess of the 10-year, 24-hour storm event. The Hardee Power Station will also have associated oil storage and handling facilities, water treatment facilities, a control building and warehouse, and an administrative building. Power generated from the Hardee Power Plant will be distributed to the Pebbledale, Vandolah and Lee County substations via three 230 kV transmission lines. One line, owned by Tampa Electric Company, heads north from the plant site and terminates at the Pebbledale substation. A preferred corridor and an alternate corridor have been proposed for this line. The other two transmission lines, owned by SECI, will head south from the Hardee Power Station facility and follow their respective corridors, one terminating at the Vandolah substation and the other at the Lee County substation. The corridors running north from the plant site to the Pebbledale substation are approximately 16 miles in length with a corridor width of approximately 1/2 mile but varying in sections from 1/4 of a mile to 1 mile. The transmission line heading south from the plant site to the Vandoloah substation will be approximately 8 miles in length and generally 1/2 mile in width with variations from 1/2 mile to 3/4 of a mile. The transmission line running south from the plant site to the Lee County substation will be approximately 78 miles in length with a width generally of 1/2 mile with variations from 150 feet to approximately 1 mile. The transmission line structures will encompass only the rights-of-way within the corridors. The right-of-way for a typical H frame structure ranges from 100 to 150 feet while the right-of-way for a single pole structure ranges from 75 feet to 100 feet. The H-frame structures consist of two vertical poles having a typical out-of-ground height of approximately 65 feet with cross-arm assemblies holding porcelain insulators. The single pole structure consists of a single vertical structure with a typical out-of-ground height of 95 feet with insulator sets holding the conductors in place. Construction and maintenance activities with respect to these structures will require the construction of access roads. The proposed power plant facility will include a natural gas pipeline which will connect into the existing Florida Gas Transmission pipeline system north of Polk City. The pipeline will route south past Polk City, Auburndale, and Bartow to State Road 60. The pipeline will then continue past Pierce and Bradley Junction until it meets County Road 630 where the pipeline heads east until it reaches County Road 663 where it turns south to the plant site. The natural gas pipeline will be an 18-inch diameter pipe which will be buried three feet underground with a length of approximately 49 miles. The purpose of the pipeline is to transport natural gas, the primary fuel for the facility, to the plant site. The DER published notices of the March 6, 1990 land use hearing in the Herald-Advocate (Hardee County) on January 18, 1990 in the Tampa Tribune, the Mulberry Press (Polk County), and the Ledger (Polk County) on January 15, 1990; and in the DeSoto County Times on January 17, 1990. Notice of the March 6, 1990 hearing was also published in the Florida Administrative Weekly on January 19, 1990. Co-applicants published notice of the May 3, 1990 continuance of the March 6, 1990 land use hearing in the April 18, 1990 editions of the Lakeland Ledger, the Tampa Tribune, the DeSoto County Times, the Ft. Myers News-Press (Lee County), the Cape Coral Daily Breeze, the Bradenton Herald, and the Charlotte Sun/Herald-News. On April 18, 1990, the Hearing Officer reviewed Co- applicants' Notice of Resumption of Land Use and Zoning Hearing and found it sufficient to provide notice to all parties and the public of the continuation of the land use hearing. Polk County Aspects of the power plant and associated facilities, including preferred and alternative corridors, to be located in Polk County include: (a) a portion of the cooling reservoir; (b) a 230 kV transmission line extending from the plant to the Pebbledale substation; (c) a natural gas pipeline extending from the plant to Florida Gas Transmission Company's main gas line north of Polk City; and (d) miscellaneous appurtenances and accessories, including access roads. The land use plan that governs the Hardee Power Station and associated linear facilities located in Polk County is the Polk County Comprehensive Plan as adopted by the Board of County Commissioners on June 26, 1979. The applicable zoning regulation is the 1983 Polk County zoning ordinance. Polk County has not adopted a land-use plan map and thus there are no land use plan designations encompassed by the site or its associated facilities in Polk County. With respect to Polk County's Comprehensive Plan, the Polk County Chief of Current Planning, ron Borchers, on January 20, 1989, confirmed that the cooling reservoir, transmission line, and natural gas pipeline complied with Polk County's Comprehensive Plan. Expert testimony also demonstrated that the proposed project is consistent and in compliance with the zoning ordinance and land use plan of Polk County. The Polk County Zoning category for the Hardee Power Station generating facility site and the cooling reservoir site is RC (rural conservation). The transmission line corridor crosses four zoning categories in Polk County: RC (rural conservation district); GI (general industrial district); R3 (rural residential district); and R2 (rural residential district). The gas pipeline corridor crosses the following zoning categories within Polk County: R1, R2, and R3 (residence districts); RE1 and RE2 (rural estates districts); SF1 (single family district); SF1M (single family district); RC and RC2 (rural conservation districts); C2 (commercial district for a multi- neighborhood commercial); C3 (commercial district for regional commercial; C4 (commercial district for heavy commercial; GI (general industrial district; and PUD (planned unit development district. In Polk County gas pipelines are classified as Class I essential services and are permitted in all zoning districts. By letter dated January 24, 1989, Zoning Administrator Gerald Martin confirmed that the plant site and associated facilities are in compliance with the Polk County Zoning Ordinance, stating: Specifically, transmission lines and gas pipelines are Class I essential services; and the power plant's cooling reservoir is a Class II essential service. Class I essential services are permitted in all zoning districts. The site of the proposed cooling reservoir in Polk County is zoned Rural Conservation (RC) which permits Class II essential services. Therefore, these proposed facilities are in compliance with the Polk County Zoning Ordinance. Expert testimony also demonstrated that the power plant site and associated linear facilities are in compliance and consistent with Polk County's Zoning Ordinance. Co-applicants have entered into a stipulation with Polk County in which the County confirms that the site of the power plant and associated facilities, including preferred and alternative corridors, to be located in Polk County are consistent and in compliance with Polk County's existing Land Use Plan and Zoning Ordinance. Hardee County Aspects of the power plant and associated facilities, including preferred and alternative corridors, to be located in hardee County include: (a) the power plant facility; (b) a portion of the cooling reservoir; (c) a portion of the 230 kV transmission line extending from the plant to the Pebbledale substation in Polk County; (d) a 230 kV transmission line from the plant to the Vandolah substation in Hardee County; (e) a 230 kV transmissionline extending from the power plant to the Lee County substation; (f) a portion of the natural gas pipeline extending to Florida Gas Transmission Company's main gas line north of the power plant in Polk County; and (g) miscellaneous appurtenances and accessories including access roads. The land use plan that governs the Hardee Power Station in Hardee County for purposes of this hearing is the future land use plan element of the Hardee County Comprehensive Plan. The applicable zoning regulation is Hardee County Zoning Ordinance No. 82-2 as codified in the Hardee County Land Development Code T. The zoning category for the site of the Hardee Power Station generating facility located within Hardee County is I-1 (light industrial). The light industrial district, as described in the Hardee County zoning ordinance, includes "public and semi-public plants" in an enumeration of authorized "principle uses and structures", and authorizes the proposed power plant. The Hardee County Board of Commissioners rezoned the planned location of the plant site to I-1 on May 11, 1989 to authorize construction of the plant. The transmission line corridors cross the following zoning categories in Hardee County: I-1 (light industrial); A-1 (agricultural); C-2 (general commercial); FR (farm residential); and C-1 (neighborhood commercial). These linear facilities are authorized uses in all districts pursuant to 2.3G of the hardee County zoning ordinance, which states that "local public utility distributing and collecting structures such as pipes and transmission lines" are "permitted in all zoning districts." Hardee County has not adopted a land use plan map and thus there are no land-use plan designations affected by the site or associated facilities. The Hardee County Building and Zoning Department staff report on the April 17, 1989 rezoning application confirms that the proposed power plant is in compliance with Hardee County's Comprehensive Plan. Expert testimony was presented demonstrating that the proposed Hardee Power Station is consistent and in compliance with Hardee County's land use plan and zoning ordinance. On November 2, 1989, co-applicants and Hardee County entered into a stipulation in which the County confirmed that the proposed site of the power plant and associated facilities, including preferred and alternate corridors, are consistent and in compliance with Hardee County's existing land use plan and zoning ordinance. This stipulation was authorized by the Hardee County Board of County Commissioners on September 21, 1989. DeSoto County The associated linear facility located in DeSoto County is an approximately 23 mile portion of a 230 kV transmission line, including miscellaneous appurtenances and accessories, extending from the plant to an existing substation in Lee County. The land use plan that governs the proposed linear facility is the DeSoto County Ordinance No. 81-3 adopted on June 25, 1981. The applicable zoning regulations are contained in the DeSoto County Zoning Ordinance No. 81- 10. DeSoto County has not adopted a land-use plan map and thus there are no land use categories crossed by the transmission line corridor in DeSoto County. Expert testimony demonstrated that the proposed transmission line corridor associated with the Hardee Power Station does not contravene the policies or objectives of the DeSoto County Comprehensive Plan. The transmission line corridor crosses the following zoning categories in DeSoto County: A-5 (rural agriculture); A-10 (agriculture district); E (estate district); IL (industrial light district); CG (commercial general district); RSF-3 (residential signle family district); COS (conservation open space district); TTRVC (travel trailer recreational vehicle and campground district); MHC (mobile home conventional district); and RMF-6 (residential multifamily district). Section 8-8 of the DeSoto County zoning ordinance provides that "electric cables" are "permitted uses" and "allowed as a matter of right" in all zoning districts; thus, the proposed transmission line corridor does not contravene the DeSoto County Ordinance. On November 2, 1989, a stipulation was entered into between DeSoto County and the Co-applicants confirming that the zoning officials of DeSoto County have reviewed the Co-applicants' site certification application, are familiar with the proposed site of the associated linear facility, and that the proposed facility is consistent and in compliance with DeSoto County's existing land use plan and zoning ordinance. This stipulation was authorized by the DeSoto County Board of Commissioners on September 12, 1989. Charlotte County The associated linear facility located in Charlotte County includes approximately 22 miles of a 230 kV transmission line, including miscellaneous appurtenances and accessories, extending from the plant to an existing substation in Lee County. The land use plan that governs the associated linear facility to be located in Charlotte County is the future land use element of the December 16, 1988 Charlotte County/City of Punta Gorda Comprehensive Plan. The applicable zoning regulations are contained in the Charlotte County zoning regulations adopted by the Board of County Commissioners on December 8, 1981, including the June 30, 1989 amendments to the Charlotte County zoning regulations enacted pursuant to Ordinance No. 89-34. In Charlotte County, the transmission line corridor crosses the following land use plan categories: agriculture 1 and 2; agriculture conservation; preservation; public; semi-public; commercial; residential estates; mobile home; and low density residential. The transmission line corridor also crosses two overlay districts which include surface water protection districts for Alligator Creek, Prairie Creek, and Shell Creek. The Charlotte County land use plan does not specifically address placement of electric transmission lines. The Charlotte County Comprehensive Plan includes objectives that contemplate ensuring the availability of suitable land for utilities facilities necessary to support development; that the County, in conjunction with private utility franchises, coordinate efforts in identifying appropriately located environmentally suitable land to meet those needs; and that land suitable for utility facilities necessary to support future development be acquired by either the County or the private utility. The land use plan provides that development is permissible in preservation areas "as may be provided within the land development regulations'. Thus, to the extent that such development is permitted within preservation areas under the zoning ordinance, it similarly is authorized under the land use plan. In Charlotte County, the transmission line corridor crosses the following zoning categories: AE (agriculture estate); AG (agriculture general); CG (commercial general); CI (commercial intensive); ES (environmentally sensitive); MHC (mobile home conventional); MHP (mobile home park); PD (planned evelopment); RE-5 (residential estate); RMF-10 (residential multi-family); RSF- 3.5 (residential single family); and RE-1 (residential estate). The Charlotte County zoning ordinance traditionally has been applied as authorizing transmission lines without the requirement of obtaining a special exception permit. Unrebutted expert testimony confirmed that this interpretation comports with the language of the zoning ordinance. Charlotte County has entered into a stipulation in this proceeding confirming that the proposed site of the associated linear facility is consistent and in compliance with Charlotte County's existing land use plan and zoning ordinance. This stipulation was authorized by the Charlotte County Board of Commissioners on September 26, 1989. Lee County The associated linear facility located in un-incorporated Lee County is a five mile length of a 230 kV transmission line, including miscellaneous appurtenances and accessories, extending from the plant to an existing substation in Lee County. The land use plan that governs the linear facility to be located in Lee County is section A of the Lee County Comprehensive Plan (entitled "the Lee Plan") adopted by the lee County Board of County Commissioners on January 31, 1989. The applicable zoning regulations are Lee County's official Zoning Ordinance (Ordinance 86-17) and amendments thereto. In Lee County, the transmission line corridor crosses four land-use plan categories which include open lands, resource protection transition zones, rural, and central urban. Expert testimony demonstrated that the associated linear facility does not contravene any of the policies or objectives contained in the Lee County Land Use Plan. The transmission line corridor corsses the following zoning categories in Lee County: AG-2 (agricultural district); C-2 (commercial district); MH-1 (residential uses); and MH-2 (residential uses). The associated linear facility is an "essential service facility" under Sections 1001.13 and 202.12 of the Lee County zoning ordinance and is permitted in all zoning districts within Lee County. Lee County has entered into a stipulation in this proceeding confirming that the proposed site of the associated linear facility is consistent and in compliance with Lee County's land use plan and zoning ordinance. This stipulation was authorized by the Lee County Board of Commissioners on February 7, 1990. City of Cape Coral The associated linear facility located in the City of Cape Coral is approximately a 3.2 mile portion of a 230 kV transmission line, including miscellaneous appurtenances and accessories, extending from the plant to an existing substation in Lee County, located east of the City of Cape Coral. The land use plan that governs the proposed linear facilities in Cape Coral is the February 13, 1989 City of Cape Coral Comprehensive Plan. The applicable zoning regulations are the City of Cape Coral Land Development Regulations, as amended February 1990 by Ordinance No. 7-90. The transmission line corridor crosses three land-use plan categories: mixed use; parks and recreation; and single family. There are no references to transmission line corridors in the Cape Coral land use plan; however, expert testimony was presented that the proposed transmission line corridor does not contravene the City of Cape Coral's land use plan. The transmission line corridor primarily crosses the agricultural (AG) zoning category in the City of Cape Coral; moreover, the outer fringes of the corridor briefly intersect with a portion of land zoned R1 (single family residential district) where it enters the City of Cape Coral. On February 12, 1990, the City of Cape Coral amended its zoning ordinance to provide, among other things, that the transmission was a permitted use in areas zoned "Agricultural". To the extent a transmission line structure intersects with the R-1 district, it would be authorized under section 2.7.1 of the zoning ordinance. Expert testimony demonstrated that the proposed transmission line is an authorized use under the City of Cape Coral's zoning ordinance. On February 16, 1990, Co-applicants and the City of Cape Coral entered into a stipulation in which the County confirmed that the Co-applicants' proposed transmission line corridor traverses through an area of the City of Cape Coral that is zoned Agricultural and that, therefore, the transmission line is an authorized use under the City of Cape Coral zoning ordinance. Furthermore, the County stipulated that the proposed site of the transmission line is consistent and in compliance with the City of Cape Coral's land use plan. City of Auburndale The associated linear facility to be located in the City of Auburndale is a portion of a natural gas pipeline that extends from approximately one mile north of Polk City where it interconnects with the existing Florida Gas Transmission 18 inch St. Petersburg lateral and continues south to the Hardee Power Station. The land use plan that governs the proposed corridor of the natural gas pipeline through the City of Auburndale is the June 1977 City of Auburndale Comprehensive Plan. The applicable zoning regulation is the City of Auburndale's zoning ordinance codified in Chapter 25 of the City of Auburndale Code. In Auburndale, there are two future land use maps for the City of Auburndale contained in its comprehensive plan. One of these land use plan maps covers an area where the pipeline corridor crosses three land use plan categories: agricultural; medium-density residential; and low-density residential. The City of Auburndale Comprehensive Plan does not mention gas pipelines. Expert testimony demonstrated that the proposed pepeline corridor does not contravene the land use plan of the City of Auburndale. Within the City of Auburndale, the proposed gas pipeline corridor crosses the zoning category CH (commercial highway). The City of Auburndale's zoning ordinance defines essential services to include gas facilities and indicates they can be located in any zoning district after review and approval by the City Commission. That review and approval occurred on April 2, 1990 as reflected in the City Commission resolution. On May 3, 1990, the City of Auburndale entered into a stipulation with Co-applicants wherein the County confirmed that the proposed natural gas pipeline corridor is consistent and in compliance with the City of Auburndale's existing land use plan and zoning ordinance. City of Bartow The associated linear facility located in the City of Bartow is a portion of a natural gas pipeline that extends from approximately one mile north of Polk City where it interconnects with the existing Florida Gas Transmission 18 inch St. Petersburg lateral and continues south to the Hardee Power Station. The land use plan that governs the proposed natural gas pipeline associated with the Hardee Power Station is the 1979 City of Bartow Comprehensive Plan. The applicable zoning regulations are the City of Bartow's zoning ordinance, Ordinance No. 981-A. The City of Bartow has not adopted a land use plan map so there are no land use plan categories crossed by the pipeline corridor in the City of Bartow. The City of Bartow's comprehensive plan does not mention gas pipelines. Expert testimony demonstrated that the proposed natural gas pipeline will be consistent and in compliance with the City of Bartow's land use plan. In the City of Bartow, the proposed pipeline crosses the following zoning categories: R1 and R1A (residential districts); C3 (highway commercial); P1 (professional office); and I-1 and I-2 (industrial districts). The City of Bartow's zoning ordinance defines gas pipelines as public service structures which are permitted in all zoning districts after review by the Zoning Commission. That review occurred on March 22, 1990 where the Zoning Commission recommended approval of the proposed gas pipeline. The recommendation was subsequently adopted by the City Commission. On May 3, 1990, the City of Bartow and the Co-applicants entered into a stipulation in which the City confirmed that the proposed natural gas pipeline corridor is consistent and in compliance with the City of Bartow's existing land use plan and zoning ordinance (Ordinance No. 981-A, as amended). City of Polk City The associated linear facility to be located in Polk City is a portion of a natural gas pipeline that extends from approximately one mile north of Polk City where it interconnects with the existing Florida Gas Transmission 18 inch St. Petersburg lateral and continues south to the Hardee Power Station. The land use plan that governs the proposed natural gas pipeline associated with the hardee Power Station is the Town of Polk City Comprehensive Plan adopted by the City Commission on September 4, 1980. The applicable zoning regulations are contained in Polk City Ordinance 89-11. In Polk City, the pipeline crosses two land-use categories, commercial and agricultural. The Polk City Comprehensive Plan does not mention natural gas pipelines. Expert testimony demonstrated that the natural gas pipeline corridor will be consistent and in compliance with the City of Polk City's land use plan. Within Polk City, the proposed natural gas pipeline corridor crosses one zoning category, C1 (commercial restricted). The Polk City zoning ordinance is silent on the matter of gas pipelines. However, the City Commission in Polk City, pursuant to a request by the Co-applicants, approved the proposed natural gas pipeline as an allowable use under the City's zoning ordinance. On May 3, 1990, Co-applicants and Polk City entered into a stipulation wherein the City confirmed that the proposed natural gas pipeline corridor is consistent and in compliance with Polk City's existing land use plan and zoning ordinance (Ordinance No. 89-11, as amended).
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is recommended that the Governor and cabinet, sitting as the Siting Board, enter a Final Order finding that the site of the Hardee Power Station electric generating facilities and cooling reservoir, the site of the associated natural gas pipeline; and the site of the corridors for the directly associated transmissionlines, as proposed in the Site Certification Application, are consistent and in compliance with existing land use plans and zoning ordinances. DONE AND ENTERED this 6th day of June, 1990 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 6th day of June, 1990. Copies Furnished to all persons shown in Appendix A APPENDIX A APPEARANCES Hamilton S. Oven, Jr., P.E. Administrator, Siting Coordination Section Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Richard Donelan, Esquire Gary C. Smallridge, Esquire Dept. of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 G. Stephen Pfeiffer, Esquire Steve Hall, Esquire Dept. of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100 Edward B. Helvenston, Esquire Catherine D'Andrea, Esquire Southwest Florida Water Management District 2379 Broad Street Brooksville, FL 34609-6899 Sarah Nall, Esquire South Florida Water Management District P. O. Box 24680 West Palm Beach, FL 33416-4680 Susan P. Clark, Esquire Suzanne S. Brownless, Esquire Florida Public Service Commission 101 East Gaines Street Fletcher Building, Suite 212 Tallahassee, FL 32399-0863 Lawrence N. Curtin, Esquire Samuel J. Morley, Esquire P. O. Drawer 810 Tallahassee, FL 32302 William H. Green, Esquire James S. Alves, Esquire P. O. Box 6526 Tallahassee, FL 32314 Eugene E. McClellan, Jr., Esquire Dept. of Natural Resources 3900 Commonwealth Blvd. Tallahassee, FL 32399-3000 William Powell, Esquire City of Cape Coral Attorney P. O. Box 150027 Cape Coral, FL 33915-0027 Gary Vorbeck, Esquire DeSoto and Hardee County Attorney 207 East Magnolia Street Arcadia, FL 33821 Sandra Augustine, Esquire Beth A. Sullivan Esquire Charlotte County Attorney 18500 Murdock Circle Port Charlotte, FL 33948-1094 Mark F. Carpanini, Esquire Polk County Attorney P. O. Box 60 Bartow, FL 33830 H. Hamilton Rice, Jr., Esquire Jeffrey N. Steinsnyder, Esquire Manatee County Attorney 1112 Manatee Avenue West, Suite 969 P. O. Box 1000 Bradenton, FL 34205 James V. Antista, Esquire Kenneth McLaughlin, Esquire Florida Game and Fresh Water Fish Commission 620 South Meridian Street Tallahassee, FL 32399-1600 Rivers H. Buford, Jr., Esquire Dept. of Transportation 605 Suwannee Street, M.S.-58 Tallahassee, FL 32399-0458 Alton Roane, Director Lee County Division of Planning P. O. Box 398 Ft. Myers, FL 33902-0398 David Emerson Bruner, Esquire Southwest Florida Regional Planning Council 1114-B North Collier Boulevard Marco Island, FL 33937 David C. Holoman, Esquire City of Arcadia Attorney P. O. Drawer 592 Arcadia, FL 33821 James Q. Duane, Executive Director Ralph Artigliere, Esquire Central Florida Regional Planning Council P. O. Box 3 Lakeland, FL 33802-0003 Thomas W. Reese, Esquire Manasota-88 123 Eighth Street, North St. Petersburg, FL 33701 Michael P. Haymans, Esquire P. O. Box 2159 Port Charlotte, FL 33952 APPENDIX B RULINGS ON PROPOSED FINDINGS OF FACT (DOAH Case No. 89-3560) The proposed findings of fact contained in the Joint Proposed Recommended Order filed on behalf of the Co-Applicants and the Department have been substantially adopted in Findings 1-93. The following rulings are made on proposed findings of fact contained in the Proposed Recommended Order filed on behalf of the Florida Game and Fresh Water Fish Commission: 1-2. Adopted in Finding 70. Adopted in Finding 71. Adopted in Findings 72, 73. Adopted in Finding 76. Adopted in Finding 77. Adopted in Finding 78. Adopted in Finding 79. Adopted in Finding 80. Adopted in Finding 81. Adopted in Finding 82. Adopted in Finding 83. The following rulings are made on proposed findings of fact contained in the Proposed Recommended Order filed on behalf of Intervenors Slack and Katzen: 1-2. Adopted in Finding 1. 3-6. Rejected as unnecessary since this is not in dispute. 7. Adopted in Finding 46. 8-10. Adopted in Finding 12, but otherwise Rejected as not based on competent substantial evidence. Adopted and Rejected in Findings 71-73. Adopted in Finding 90. 13-14. Rejected as not based on competent substantial evidence 15-16. Adopted in Finding 45. Adopted in Finding 48. Adopted in Findings 64, 65. Adopted in Findings 46, 71. Adopted and Rejected in Findings 46, 75. 21-26. Rejected in Findings 75-83, and as not based on competent substantial evidence. 27. Rejected in Findings 76, 80, 83, and as not based on competent substantial evidence. 28-30. Adopted in Finding 12, but otherwise Rejected as immaterial and unnecessary. Rejected in Finding 84, and otherwise as not based on competent substantial evidence. Adopted in Finding 84. Adopted in Finding 85. Rejected as not based on competent substantial evidence and immaterial. Adopted in Finding 46. 36-37. Rejected in Findings 71-73. Adopted in Findings 53, 54. Rejected in Finding 53, and otherwise as not based on competent substantial evidence. Adopted in Finding 53. 41-42. Rejected as immaterial and irrelevant. 43-44. Adopted in Finding 70. Adopted in Findings 75-83. Rejected as a conclusion of law and not a proposed finding of fact. 47-48. Rejected as unnecessary and cumulative. 49. Adopted and Rejected in Finding 79. 50-53. Rejected as unnecessary, immaterial and irrelevant. 54-55. Rejected in Finding 84 and otherwise as not based on competent substantial evidence. 56-57. Adopted in Finding 70. 58. Rejected as speculative, irrelevant, and as not based on competent substantial evidence. 59-60. Adopted in Finding 70. Rejected in Finding 84 and otherwise as not based on competent substantial evidence. Adopted and Rejected in Finding 78. 63-64. Adopted and Rejected in Findings 76-80. 65. Rejected as not based on competent substantial evidence 66-71. Adopted in Findings 74, 76 and 79, but otherwise Rejected in Finding 80 and as unnecessary. Rejected as unnecessary. Rejected as not based on competent substantial evidence Rejected in Findings 73, 75. Rejected as unnecessary. Rejected in Finding 77. 77-78. Rejected as irrelevant and immaterial. APPENDIX C * CONDITIONS OF CERTIFICATION * NOTE: THE REMAINING APPENDIX CONTAIN MAPS AND OTHER UNSCANABLE MATERIAL WHICH ARE AVAILABLE FOR REVIEW IN THE DIVISION'S CLERK'S OFFICE.
The Issue The issue presented is whether the land clearing permits issued to Respondents Young by Respondent Monroe County comport with the requirements of Chapter 380, Florida Statutes.
Findings Of Fact On October 18, 1988, a telephonic motion hearing was conducted in this cause. During the course of that motion hearing, the parties requested a ruling as to which party carries the burden of proof in this proceeding. The undersigned ruled at that time that the burden of proof is on Respondents James D. Young, Sr., and Oleva A. Young. On October 25, 1988, an Order was entered in this cause memorializing the rulings made during the course of that telephonic hearing. Paragraph numbered 7 of that Order provides as follows: 7. This being a proceeding pursuant to Chapter 380, Florida Statutes, the burden of proof in this cause is on the applicants for the permit/development order, the entitlement to which is the subject matter of this proceeding. There is no evidence in this cause that any party filed an appeal from the October 25, 1988, Order. Immediately after the commencement of the final hearing in this cause, Respondents James D. Young, Sr., and Oleva A. Young again raised the issue of which party carries the burden of proof in this proceeding. Upon failing to obtain a ruling that the Petitioner Department of Community Affairs carries the burden of proof, Respondents James D. Young, Sr., and Oleva A. Young announced their refusal to participate further in this proceeding. Respondents James D. Young, Sr., and Oleva A. Young failed to present any evidence in this cause.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered denying Respondents James D. Young, Sr., and Oleva A. Young's applications for Monroe County Land Clearing Permits Nos. 8810000446, 8810000449, and 8810000450. DONE and RECOMMENDED this 21st day of December, 1988, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of December, 1988. COPIES FURNISHED: Patty Woodworth, Secretary Land and Water Adjudicatory Commission Planning and Budgeting Executive Office of the Governor The Capitol, PL-05 Tallahassee, Florida 32399-0001 Thomas G. Pelham, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 John M. Carlson, Esquire Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 David Paul Horan, Esquire 608 Whitehead Street Key West, Florida 33040 Larry Keesey, Esquire Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 =================================================================
Other Judicial Opinions REVIEW OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030(b) (1) (C) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT’S AGENCY CLERK, 2555 SHUMARD OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100, WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. FINAL ORDER NO. DCA 10-GM~155 CERTIFICATE OF FILING AND SERVICE I HEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Community Affairs, and that true and correct copies have been furnished by the manner indicated to each of the persons listed r below on this S A ay of / 5f , 2010. fle An on Paula Ford , Agency Clerk By U.S. Mail The Honorable Donald R. Alexander Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 Derek Rooney, Esq. Charlotte County Attorney’s Office 18500 Murdock Circle Port Charlotte, Florida 33948-1094 By Hand Delivery Lynette Norr Assistant General Counsel Department of Community Affairs Page 4 of 4
The Issue The Appellants raise several issues on appeal, including: whether Ordinance 003-2015 did not comply with the constitutional single subject rule and did the County’s application of the Ordinance violate the Florida Constitution; whether the County exceeded its police power in enacting Ordinance 003-2015 and failed to follow the essential requirements of the law when it applied the ordinance to the Appellants’ property; (3) whether the Planning Commission’s decision violated its obligations to support, protect, and defend the Unites States and Florida Constitutions; and (4) whether the Appellants were deprived of their fundamental due process rights during the Commission hearing.
