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.
Conclusions On March 10, 2010, an Administrative Law Judge (“ALJ”) of the Division of Administrative Hearings entered an Order Closing File in the above captioned case.
Other Judicial Opinions 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, OFFICE OF THE GENERAL COUNSEL - CALDWELL BUILDING, 107 EAST MADISON STREET, MSC 110, TALLAHASSEE, FLORIDA 32399-4128, WITHIN 30 DAYS OF THE DAY THIS ORDER IS 2 Final Order No. DEO11-0006 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. CERTIFICATE OF FILING AND SERVICE THEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Economic Opportunity, and that true and correct copies have been furnished to the persons listed below in the manner described, on this fopllriay of October 2011. : Miriam Snipes, Agency Clerk DEPARTMENT OF ECONOMIC OPPORTUNITY 107 East Madison Street, MSC 110 Tallahassee, Florida 32399-4128 By U.S. Mail: Alfred J. Malefatto, Esquire Greenberg Traurig, P.A. 777 South Flagler Drive, Suite 300E West Palm Beach, Florida 33401 R. Max Lohman, Esquire Corbett and White, P.A; 1111 Hypoluxo Road, Suite 207 Lantana, Florida 33462 Brian Joslyn, Esquire Gregory S. Kino, Esquire Boose, Casey, Cikin, Lubitz, Martens, McBane & O*Connell Northbridge Center, 19th Floor 515 North Flagler Drive West Palm Beach, Florida 33401-4626 By Hand Delivery: David L. Jordan, Assistant General Counsel Department of Economic Opportunity 107 East Madison Street, MSC 110 Tallahassee, Florida 32399-4128 By Filing with DOAH: The Honorable D. R. Alexander Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 Final Order No. DEO11-0006
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.
Findings Of Fact The Resource Recovery Facility The purpose of the proposed resource recovery facility (RRF), a solid waste-fired electrical power plant, is to dispose of solid waste and recover energy. This "waste to energy" facility will initially dispose of up to 2,352 tons of refuse each day, and generate up to 62.5 megawatts of electrical power. The ultimate capacity of the facility is 3,300 tons of refuse each day, and a generating capacity of 96.1 megawatts. The proposed RRF complex will include a gatehouse and weigh station, refuse receiving and handling building, turbine generator building, administrative building and two landfills for the disposal of ash residue and non- processable solid waste. The site development plans for the project contemplate that solid waste will be delivered by truck to the enclosed refuse and receiving building. All waste will be stored and processed inside the main facility. The Site The site for the proposed RRF is a predominantly undeveloped 248-acre parcel of land situated at the southeast intersection of US 441 (State Road 7) and State Road (SR) 84, an unincorporated area of Broward County. The site is bounded on the north by the right-of- way for I-595, the northerly part of its east boundary by the proposed Ann Kolb Park, the southerly part of its east boundary and the south by the South Fork of the New River Canal (New River Canal), and the west by US 441. The uses surrounding the site are mixed. Located east of the site, and south of the proposed Ann Kolb Park, is a large fossil fuel electric generation facility owned by Florida Power & Light Company (FP&L). To the south, across the New River Canal, is a mixed residential- commercial area of single family residences, duplex residences, and marine-oriented businesses (marinas and fish wholesalers). To the west of US 441 is a mixture of light, medium, and heavy industry, including industrial office space, auto salvage facilities and prestressed concrete pouring yards. North of the right-of-way for I- 595, and SR 84, is a mixture of strip commercial and residential usage. Although the site itself is predominantly unoccupied pasture land, some of its lands have been developed. The southern portion of the site, abutting the New River Canal, is occupied by a marine engineering firm which operates dry dockage and related facilities (heavy industrial use). The other uses currently existing on the site are for a nursery and the sale of prefabricated sheds. Bisecting the site is a parcel of land presently being developed by the City of Fort Lauderdale (City) for a sludge composting facility. Broward County proposes to locate the RRF south of the City's facility, and the landfills north of the City's facility. Consistency of the site with local land use plans and zoning ordinances Broward County has adopted a Comprehensive Plan, pursuant to Chapter 163, Florida Statutes, which establishes guidelines and policies to promote orderly and balanced economic, social, physical, environmental and fiscal development of the area. Pertinent to this proceeding are the Broward County Land Use Plan-map and the Unincorporated Area Land Use Plan (the land use plan element of the comprehensive plan) and Broward County's zoning ordinances. The proposed site is designated industrial under the Broward County Land Use Plan-map and the Unincorporated Area Land Use Plan. The proposed RRF, with attendant land fill, is a utility for solid waste disposal and, as such, an allowable use under the industrial designation of both plans. Prior to rezoning, various portions of the site were zoned A-I Limited Agricultural, B-3 General Business, M-3 General Industrial, and M-4 Limited Heavy Industrial. Permitted uses ranged from cattle and stock grazing (A-1) to asphalt paving plants, junk yards and the storage of poisonous gas (M-4). On March 16, 1984, the Board of County Commissioners of Broward County approved the rezoning of the site to a Special Use Planned Unit Development District (PUD), and approved the RRF conceptual site plan. The proposed RRF, and attendant landfill, constitute a Planned Special Complex under Broward County's PUD zoning ordinances and, as such, are permitted nonresidential uses. The Department of Community Affairs, the Department of Environmental Regulation, and the South Florida Water Management District concur that the proposed RRF appears to be consistent and in compliance with existing land use plans and zoning ordinances. The Public Service Commission did not participate in this land use portion of the power plant siting process. South Broward Citizens for a Better Environment, Inc. (SBC) was the only party to contest the consistency of the proposed RRF with existing land use plans and zoning ordinances. SBC asserted that the proposed RRF violates: (1) the coastal zone protection element of the Broward County Comprehensive Plan, because the environmental impact assessment required by that element of the plan was inadequate or not done, (2) the urban wilderness inventory guidelines of the Broward County Comprehensive Plan, because the environmental effects of the proposed RRF on the area proposed to be designated as an urban wilderness area (proposed Ann Kolb Park) would outweigh the benefits of the project, and (3) Section 13 of Ordinance numbers 84- 6(2) and 84-7(2), which approved the rezoning for the site, because the impact assessment required by the Ordinances had not been prepared. While the coastal zone protection element and urban wilderness inventory guidelines of the Broward County comprehensive plan were germane to Broward County's decision to rezone the site and approve the development, they are not pertinent to this land use hearing. Broward County's decision is final, and these proceedings do not provide a forum to collaterally attack it. The relevance of SBC's assertions aside, the evidence presented established that the proposed RRF did not violate the coastal zone protection element, the urban wilderness inventory guidelines, or any other element of the Broward County Comprehensive Plan. SBC's assertion that the proposed RRF will violate Section 13 of the rezoning ordinances is ill- founded. Section 13 provides: PRIOR TO LANDFILL DEVELOPMENT, AN IMPACT ASSESSMENT SHALL BE PREPARED BY THE RESOURCE RECOVERY OFFICE OF BROWARD COUNTY TO ADDRESS THE POTENTIAL HYDROLOGICAL IMPACTS OF THE DEVELOPMENT OF THE LANDFILL ON ANN KOLB PARK. DATA AND INFORMATION UTILIZED TO OBTAIN FDER PERMITS WILL BE USED TO CONDUCT THIS ASSESSMENT. IN THE EVENT POTENTIALLY SIGNIFICANT IMPACTS ARE IDENTIFIED, A MANAGEMENT PLAN SHALL BE DEVELOPED TO OFFER RECOMMENDATIONS AND MITIGATIVE ACTIONS TO INSURE THE INTEGRITY OF ANN KOLB PARK. (Emphasis supplied) The evidence is clear that an impact assessment is only required before development commences. Consequently, the proposed RRF does not violate the rezoning ordinances. Notice of the land use hearing was published in the Fort Lauderdale News/Sun-Sentinel, a daily newspaper, on July 4, 1985, and also in the Florida Administrative Weekly on June 28, 1985.
The Issue The issues are whether the following decisions of the Director of Development Services of Citrus County on May 9, July 21, and July 25, 2000, are correct: (1) that the Brown School of Florida, Inc.'s proposed use of certain property in Citrus County, Florida, did not constitute a change in use as described in Sections 2021 through 2023 of the Citrus County Land Development Code and is consistent with Rezoning Ordinance No. 86-A38; and (2) that the proposed construction of a fence on the property complied with the Citrus County Land Development Code.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: The property which is the subject of this dispute is located at 2804 West Marc Knighton Court, one mile north of the intersection of County Roads 486 and 491, and just south of the community of Beverly Hills in Citrus County, Florida. Appellee, the Brown Schools of Florida, Inc. (the Brown Schools), has entered into a contract to lease the land from its owner for the purpose of operating a State-licensed "residential child-caring facility." Appellants, Black Diamond Homeowner's Association, Inc., Black Diamond Properties, Inc., Jerry and Ann Kerl, and Marvin Query, have objected to the proposed use on numerous grounds. As residents or owners of property adjacent to the subject property, Appellants have standing to bring these appeals. The property was originally zoned agriculture. In 1986, Community Care Systems, Inc. (Community Care), which then had a contract to purchase the property from a principal of Black Diamond Properties, Inc., applied to Appellee, Citrus County (County), to rezone 30.9 acres from "A-1 General Agriculture" to a "Planned Development-Commercial" land use classification. The stated purpose of the application was to permit the construction and operation of a private psychiatric hospital for alcohol and drug rehabilitation. The application reflected that the owner's sole intended use of the property was as a 60,000 square feet psychiatric hospital licensed under Chapter 381, Florida Statutes, which would "provide comprehensive psychiatric treatment for people of all ages." Under the 1986 version of the County's Land Development Code (Code), private hospitals were only authorized in the commercial land use districts. There was no separate "Institutional" land use district. Thus, the Code dictated that the original facility could only be used as a private psychiatric hospital in a commercial zone. Since an application for straight commercial rezoning on the property would have been inconsistent with the County's then existing land use plan, the only way in which the property could be used for a private psychiatric facility was if the property was classified and zoned as "Planned Development-Commercial." Although the Code was amended in 1990 to include new land use districts, including a "Public/Semi-Public/Institutional" district, hospitals are permitted only in a "General Commercial distict, while "Institutional" uses that are not hospitals are not allowed in a "General Commercial" District. In any event, the 1986 ordinance and final development plan were not amended by the changes to the Code in 1990. The Brown Schools points out that at the time the rezoning application was filed, the 1986 Code contained a Commercial, Residential, Institutional and Office (CRIO) land use district which allowed, among other things, the construction of "public or private hospitals," if they met certain conditions, and "[a]dult congregate living facilities and other group homes, supervised living facilities meeting all county and State requirements." However, in its rezoning application, Community Care did not seek an institutional use nor request a CRIO use. Thus, the cited provision has no application here, and there is no indication in the record that it was even considered by the County in making the decisions under appeal. When the rezoning application was filed, Community Care held Certificate of Need No. 2870 issued in 1984, which authorized construction of a facility with 51 short-term psychiatric beds and 37 long-term substance abuse beds for the treatment of adults, including geriatric patients. The minutes of the Citrus County Board of County Commissioners (Board) meeting held on August 26, 1986, at which the zoning modification was approved, reflect that concerns were raised by abutting citizens of Beverly Hills, who belonged to a group known as United Residents of Beverly Hills (URBH), relative to the facility's future uses. To achieve the necessary zoning approvals, Community Care expressly reassured URBH members by letter dated July 7, 1986, that it would not accept court commitments, "criminally insane," or special problem cases such as "fire setters"; that admissions would be voluntary or by short term civil commitment papers; that patient referral would be by direct request of the patient (self-referral), by physician or other local health professional, by transfer from local general hospitals, and by law enforcement if no charges are pending against the patient; that the property would not be used to house onsite felons or violent patients; and that the building would be low profile and without bars, windows, fences, or gates. Thus, it is clear from Community Care's own acknowledgement that the facility was never intended to be used to accept law enforcement referrals, court commitments, or other non-voluntary commmitments, much less the violent or criminally insane individuals. Having received the above representations from the applicant, the Board incorporated both a URBH letter and the Brown Schools' letter of July 6 as a part of Ordinance No. 86- A38, which approved the zoning change application (Z-86-29) subject to certain conditions. That Ordinance expressly limited and conditioned the uses allowed on the property to the uses approved in the Ordinance. The operative section at issue regarding this appeal is Condition 2, which required that: 2. Approval be limited to a 60,000 square foot (88 bed) psychiatric care facility in accordance with state guidelines. Thereafter, a facility was constructed and Community Care operated a psychiatric care hospital on the property under various names until sometime in 1997, when Community Care (then operating the facility under the name of Heritage Hills Hospital of Beverly Hills) voluntarily ceased to provide services and vacated the premises. By operation of law, the Certificate of Need automatically expired when it was returned to the Agency for Health Care Administration (AHCA) on June 12, 1998. The property was sold in 1999 to BCK of Ocala, LLC. That owner then entered into a lease of the property with the Brown Schools on an undisclosed date in 1999 or early 2000. On March 23, 2000, the Brown Schools filed a "Pre- Application Review" with the County's Community Development Division and met with County staffers in an effort to gain approval for their facility. A preapplication is filed "before submittal of an application for development order," and once one is filed, under Section 2210 of the Code a preapplication conference is then held with County staffers to acquaint the applicant with substantive and procedural requirements of this LDC, provide for an exchange of information regarding the applicable elements of the Comprehensive Plan, the LDC, and other development requirements, arrange such technical and design assistance assistance as will aid the applicant in interpretation of requirements, and to otherwise identify policies and regulations that create opportunities or pose significant constraints for the proposed development. The same section provides that the purpose of the conference is "not to grant any preliminary approval except to agree that the proposed use of the property is appropriate according to the Comprehensive Plan and to determine whether it is reasonable to expect that the proposed development can be accommodated on the site in full compliance with requirements of this LDC." The preapplication reflected that the project name was "The Brown School Locked Adolescent Facility." Also, a handwritten notation by a County staffer at the bottom of the preapplication indicates that "no change of use/no construction [is] contemplated," and that the applicant "must meet conditions of Z-86-29 - copy given to applicant." An Email prepared by a County staffer on March 14, 2000, or shortly before the preapplication was filed, reflected that the intended use of the property was a "[l]ocked facility for children and adolescents." On May 5, 2000, the Brown Schools notified the County by letter that "[w]e are aware of the original conditions in which the facility was permitted and we will not be changing its use." In response to that representation, by letter dated May 9, 2000, the County's Director of the Department of Development Services (Director), who reviews both preapplications and development order applications, advised in part as follows: Pursuant to the preapplication meeting of March 23, 2000, and your correspondence of May 5, 2000, please accept this letter as confirmation that the proposed change does not constitute a Change of Use as described in Sections 2021 through 2023. As noted in your letter, the Brown Schools of Florida are bound by the original planned development approved conditions. Should at a future date you desire to modify the structure, grounds, operation, or any of the conditions, a new review by Citrus County will be needed and may warrant a public hearing as provided in Section 2224 of the LDC. In reaching those conclusions, it is assumed the Director considered Section 2021 of the Code, which defines a "change in use" as "any change of the purpose or activity for which a piece of land or its buildings is designed, arranged, or intended, or for which it is occupied or maintained." The letter also specifically refers to the Brown Schools' plan to operate the property as a "psychotherapeutic hospital for children," and it asked that the applicant provide a copy of its "Florida DC&F permit/authorization . . . for inclusion in [the County's] file as confirmation that [the] operation is approved by the State as well." At that point in time, however, no documentation had been submitted in the process concerning the Brown Schools' operations and programs to support the decision made by the County, although such information had been submitted to the Department of Children and Family Services (DCF), the state agency which licenses adolescent facilities. In information submitted to DCF to obtain a license, the Brown Schools expressly stated that they would be accepting sexual offenders, in addition to juveniles charged with felonies. In fact, one of the criteria under the client profile for those admitted to the Brown Schools' sexual offenders program is that the individual "[m]ay have completed more intensive levels of acute care, hospitalizations, had multiple failed residential placements or may have failed at outpatient services." The documents submitted to DCF also reflect that the Brown Schools is not operating a "psychiatric hospital," as originally represented to the County, but rather it is operating something more akin to a juvenile detention center. Indeed, one of its stated missions is to "[e]nhance the public safety by providing protection for the community from juveniles charged with felonies." A part of the facility will be dedicated to providing services under a contract with the State of Florida for competency restoration. Such a prerequisite is necessary for admission to the Brown Schools' competency restoration program. Under this program, clients or their parents do not decide when they can leave, and the clients are only discharged when they are determined to be competent to stand trial, or when it is determined that they will never gain such competency. This lack of freedom illustrates that the intended use of the facility is as a detention facility, and not as a private psychiatric hospital. Obviously, the Brown Schools is not licensed, nor does it meet the statutory requirements for operation, as a psychiatric hospital. On June 5 and 6, 2000, Appellants in Case Nos. 01-1119 and 01-1120 filed separate, but similar, appeals of the May 9 letter under Section 2500 of the County Land Development Code (Code) and asked for "an interpretation of the intended, described Brown School use." On June 9, 2000, the Director requested an opinion from the County Attorney on whether his May 9 letter constituted action which triggered the provisions of Section 2500. In a memorandum dated July 17, 2000, the County Attorney concluded that it did not for the following reasons: It is my opinion that since no application has been filed nor development order issued or a request for determination made that your letter of May 9th is non-appealable by the terms of the Land Development Code. Section 2210 entitled Preapplication is merely a conference held before submittal of an application for a development order. * * * It is not an action taken by the Director which could lead to an appeal pursuant to Section 2500. Based on this advice, the Director took the position that he had not made a final determination on the Brown Schools' compliance with the zoning conditions and therefore refused to accept the appeals. Thus he did not forward the two appeals of the May 9 letter to a local hearing officer to begin the appeals process. By letter dated June 7, 2000, and in direct response to the concerns raised by Appellants, the Director provided the Brown Schools with a copy of the Appellants' appeals and requested that Appellee provide him with a copy of the DCF license, contracts, and any other supporting documents. Also, for the first time, the Director specifically requested documentation on the planned operation and programs at the facility since Appellants had questioned whether "the facility will be in compliance with the original zone change compliance conditions." In response to the Director's letter, on June 9, 2000, the Brown Schools provided the Director with a copy of its DCF license, contract with the State of Florida, and revised program information. The program information was revised (from that described in the application) after the appeals were taken to reflect a change in program titles and other terminology from that originally used. For example, the "Sexual Offender Program" was changed to "Sexual Abuse Treatment (SAT) Program," but the substance of the program remains the same. In order to receive a license to operate its institution from the DCF, the Brown Schools was required to demonstrate that it had received final zoning approval. Even though the Director represented in his June 7, 2000, letter that final zoning approval had not been made, the Brown Schools represented to the DCF that it had received final zoning approval by submitting the May 9 letter. In reliance on that letter, on May 30, 2000, the DCF issued the Brown Schools a license to operate a residential child-caring facility. The license was issued under Section 409.175, Florida Statutes (1999), which specifically provided that "child-caring facilities do not include hospitals." Beginning on July 1, 2000, the Brown Schools began placing juvenile offenders at their facility, and these residents have remained there during the pendency of these appeals. On July 21, 2000, the Director issued a 3-page letter which constituted his final determination on the matter. That letter is found in three exhibits, including Exhibit 18. The Director concluded that the Brown Schools' proposed use of the property was consistent with the applicable zoning conditions. In his letter, the Director focused on Condition 2 of the zoning ordinance, and whether the intended use was in conformity with the requirement that the property be used only for a "60,000 square foot (88-bed) psychiatric care facility in accordance with State guidelines." Of relevance here were the following conclusions: [Condition 2] specifically utilizes the term "facility" and not hospital, and the term "State guidelines" rather than specific Florida statutes, administrative codes, or state programs. This is a significant distinction and a core basis of this determination. The County cannot administratively expand, contract, or modify the language or intent of the condition when it uses plain and obvious terms. (Rinker Mat. Corp. vs. City of N. Miami). The Board's limitations to the zone change were those spelled out in the adopted conditions - not those discussed either within or outside the public hearing process by the applicant at that time. The second core issue is whether the proposed Brown operation can be considered a psychiatric care facility. The original developer, Community Care Systems, Inc., provided comprehensive psychiatric treatment for people of all ages with acute emotional, behavioral, and chemical dependency problems. The facility operated as a hospital and so was governed by the then Florida Department of Health and Rehabilitative Services as a hospital, subject to the provisions of the Health Facility and Services Development Act. These regulations served as the state guidelines referenced in Condition 2. The Brown Schools of Florida proposed operation for the Marc Knighton Court facility is a residential child caring facility as licensed by the Florida Department of Children and Families. Florida Statute (Chapter 409) provides the definition of a residential child caring agency (facility implied within the definition) that is broad in scope recognizing a number of types, including maternity homes, group homes, emergency shelters, and wilderness camps. Therefore, unlike the DHRS license obtained by Community Care Systems, Inc., which clearly established compliance with Condition #2, obtaining of the DCF license does not in and of itself serve the same role. To ascertain compliance with the psychiatric care definer of Condition #2, I must look to the Brown Schools' proposed program and the draft contract with the DCF. The program summary from the Brown Schools of Florida lists four program types: Sexual Abuse Treatment Program, Child and Adolescent Residential Treatment [P]rogram (male and female], and Residential Treatment Program for Developmentally Delayed Youth. They all share the use of an inter- disciplinary treatment team centered around the psychiatric evaluation, treatment and community integration of the client(s). This is similar in scope to some of the original hospital's programs, though in the Brown Schools case it is oriented to children referred/placed by the State as opposed to private placement. The draft contract, specifically Attachment 1, Section A, 2d, reaffirms these programs and the desired goals. While there is a difference from the original Community Care Systems operation, the fact remains that the supporting documentation provided by the Brown Schools of Florida clearly establishes that psychiatric care is a principle (sic) component of their operation and, as such, must be taken as face value compliance with Condition #2 of the Zone Change. Much has been made of the fact that the Brown School operation will treat youth who have been found incompetent to proceed. This is an issue outside the purview of land use and, in fact, the attorney representing the original applicant in 1986 made the same observation that these types of issues were not land use related. The determination of incompetency lies solely within the State of Florida through its judicial officers or their designees. It is neither feasible nor appropriate for local government through its police powers to try to regulate these matters. Secondly, much has been made of the potential for the Brown Schools program to evolve into a juvenile detention facility, whole or in part due to the generality of the DCF license. Whether this can occur is open to debate, but Florida case law on this matter is clear. Conetta vs. City of Sarasota has established that one cannot presume violations of the Code for the purpose of denial. Rather, the appropriate approach on this issue is to take corrective enforcement action after a documented violation occurs. Timely appeals of this letter were filed by Appellants. By letter dated July 21, 2000, the Brown Schools requested a "minor modification to [the] Land Development Code" for the installation of a 10-foot high chain link fence with two-foot overhead fencing at a 45-degree angle. Although suggested otherwise by Appellants, the fence was not a perimeter fence around the entire facility, but only a fence to enclose a play yard, since a perimeter fence between at least part of the facility and the adjacent property had already been constructed by one of the Appellants. On July 25, 2000, a County staffer responded to this request by holding that the fence "shall be considered a minor modification of the approved Plan Development No. Z-86-29 in accordance with the provisions of Section 2224.B of the Citrus County Land Development Code." The cited Section of the Code allows the Director to approve "minor changes in the . . . previously approved Planned Developments (PD) as long as they are in harmony with the originally approved . . . PD." After a site plan was submitted, the County issued a permit for the fence. This decision has also been appealed by Appellants on the grounds that the original site plan contained no fences, and the Board approved the zoning change in 1986 only after the applicant represented that no fences would be erected. The construction of the fence has been stayed during the pendency of these appeals.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Director of Development Services reconsider his decisions of May 9, July 21, and July 25, 2000, for the reasons expressed in this Recommended Order. DONE AND ENTERED this 15th day of August, 2001, in Tallahassee, Leon County, Florida. ___________________________________ DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of August, 2001. COPIES FURNISHED: Gary W. Maidhof, Director Department of Development Services Citrus County 3600 West Sovereign Path Lecanto, Florida 34461-8070 Julie Hions O'Kane, Esquire Drage, deBeaubien, Knight, Simmons, Mantzaris & Neal, P.A. Post Office Box 87 Orlando, Florida 32802-0087 Clark A. Stillwell, Esquire Brannen, Stillwell & Perrin, P.A. Post Office Box 250 Inverness, Florida 34451-0250 James A. Neal, Jr., Esquire James A. Neal, Jr., P.A. 452 Pleasant Grove Road Inverness, Florida 34452-5746 David C. Ashburn, Esquire Greenberg Traurig, P.A. 101 East College Avenue Tallahassee, Florida 32301-7703 Carl E. Kern, Esquire 3600 West Sovereign Path, Suite 267 Lecanto, Florida 34461-7726
Conclusions An Administrative Law Judge of the Division of Administrative Hearings has entered an Order Closing File in this proceeding. A copy of the Order is attached to this Final Order as Exhibit A.
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 09-GM-262 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 U.S. Mail to each of the persons listed below on this [b- day of Tn y) , 2009. Aauled ’ 7 va Paula Ford Agency Clerk By U.S. Mail The Honorable J. Lawrence Johnston Administrative Law Judge Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 John D. Cassels, Jr., Esquire 400 NW Second Street PO Box 968 Okeechobee, Florida 34973 - 0968 By Hand Delivery Lynette Norr Assistant General Counsel Department of Community Affairs
