The Issue The issues in this preliminary hearing are whether the South Florida Water Management District (WMD) has jurisdiction and whether Petitioners have standing. In part, the issue of WMD's jurisdiction involves sub-issues as to Petitioners' timeliness in requesting an administrative hearing.
Findings Of Fact Issuance of FPL's Permit and Waivers On May 2, 2000, WMD received an application from FPL for ROW Standard Permit to construct a parallel run of transmission lines (Parkland Transmission Line) in Sections 26, 27, 28, 29 and 35, Township 47, Range 41 East, located in Palm Beach and Broward Counties, inside the south ROW of the Hillsboro Canal. The Parkland Transmission Line was planned to carry 230 kilovolts (kV) of electricity to FPL's Parkland substation. FPL applied to place the 91-foot high poles for the transmission lines 14 feet from the top of the canal bank, on the south side of the canal, which is at least 80 feet wide. On May 5, 2000, WMD received from FPL a Petition for Waiver of Rule 40E-6.011(4), (5) and (6), which governs the placement of permanent and semi-permanent encroachments within forty feet of the top of canal bank within Works and Lands of WMD. Although not identified in the style of the Petition for Waiver, FPL also sought a "waiver from the Basis of Review Rule (L)(4)(Transmission Lines, p. 113 of Sept. 1999, Volume V, Criteria Manual for Use of Works of the District.)"3 The Petition for Waiver sought permanent waivers. The District published notice of receipt of the petition for waiver from FPL in the Florida Administrative Weekly (FAW), Volume 26, Number 21, dated May 26, 2000. However, instead of giving notice that FPL was requesting permanent waivers, the notice stated that FPL only sought "temporary relief from the Rule 40E-6.011(4), (5) and (6) . . . and the Basis of Review." In addition, while the notice described Rule 40E-6.011(4), (5) and (6) as requiring a "minimum 40 foot setback requirement from the top of bank," it did not describe the criteria in the Basis of Review, which states in pertinent part: The use of the District's Works or Lands for the construction, operation, and maintenance of transmission lines has the potential to interfere with the District's operation, maintenance and allied purposes. Applicants should acquire their own right of way and should not look to the District to utilize District-controlled Works or Lands, which were acquired for water management and other allied purposes. This policy should not be construed as a prohibition against the construction of distribution or transmission line crossings, nor is it a prohibition against use of short segments of District's right of way for the construction of local distribution facilities when such facilities will not interfere with operations and maintenance and are otherwise acceptable to the District. Finally, WMD's notice did not describe FPL's project. As a result, it could not have been ascertained from WMD's notice what FPL's Petition for Waiver was for (installation of a 230 kV overhead transmission line) or what the Basis of Review provided on transmission lines. Instead, as worded, the notice implied that both Rule 40E-6.011(4)-(6) and the Basis of Review required a "minimum 40 foot setback . . . from the top of bank." The District published notice of the July 13, 2000, Governing Board meeting (in Fort Myers, Florida) in the FAW, Volume 26, Number 25, dated June 23, 2000. This notice simply stated that the agenda of the meeting was available upon written request or via WMD's website. The meeting agenda fully described both FPL's Permit application and Petition for Waiver. It also noted WMD staff's recommendation that the both be approved. WMD's Governing Board granted both FPL's Permit application and Petition for Waiver at its meeting on July 13, 2000. An Order Granting Waiver was reduced to writing and filed on July 26, 2000, effectively nunc pro tunc July 13, 2000. The Order Granting Waiver also granted FPL's Permit application and included a Notice of Rights, which advised affected persons how to seek an administrative hearing by filing "a petition for hearing pursuant to Sections 120.569 and 120.57(1)." WMD published in the FAW, Volume 26, Number 36, dated September 8, 2000, notice of the disposition of FPL's Petition for Waiver under Section 120.542, Florida Statutes. Unlike the notice of filing the Petition for Waiver, the notice of disposition described the project as "installation of 3.7 miles of overheads parallel transmission pole line inside the south right of way of the Hillsboro Canal, Palm Beach and Broward Counties." The notice of disposition did not contain a Notice of Rights or other "point of entry" to request an administrative hearing. Except as set out in Findings 3-6, supra, neither WMD nor FPL gave Petitioners any other kind of notice of FPL's Permit application or Petition for Waiver proceedings. WMD did not determine that FPL's project was of heightened public concern, or that there was the likelihood of a request for an administrative hearing, so as to require additional notice in accordance with WMD rules. First Notice to Petitioners (Except Leserra and Smith) Petitioners all own residences in the vicinity of FPL's transmission line project. While Jeff Leserra lives south of the Hillsboro Canal and across Loxahatchee Road in Broward County, the other Petitioners all live north of the Hillsboro Canal in Boca Winds, a group of related residential developments in Palm Beach County, west of Boca Raton. Some of the Boca Winds residents--Terwilliger, Tennant, Pam Danko, Larry Rosenman, Teresa Badillo, and Mike Sturm--live in homes on property adjacent to WMD's north ROW along the Hillsboro Canal. These homes are approximately between 230 and 250 from the nearest Parkland Transmission Line pole. Moreover, in late 1999, each of these Petitioners applied to WMD for a Noticed General Permit (NGP) to extend their backyard fence enclosures between 20 and 25 feet into WMD's north ROW along the Hillsboro Canal--closer to the poles. Their applications were processed primarily by Badillo and another homeowner, Gary Fishman, who is not one of Petitioners. The applications were granted and NGPs were issued to them on May 8, 2000, just after FPL's Permit application and Petition for Waiver were filed. The homes of the other Petitioners--Jose and Amalia Gutman, Frank Longo, David Weinstein, and Ballard Smith--are not adjacent to the Hillsboro Canal. The homes of the Gutmans and Smith are approximately 370 and 390 feet from the nearest pole; Weinstein's home is approximately twice as far away; Longo's home is approximately 1,100 feet away from the nearest pole. All Petitioners use their homes as their permanent residence except for Ballard Smith, whose principal residence is in Bradenton, Florida. Prior to November 2000, Petitioners had no notice or knowledge of FPL's Permit application or Petition for Waiver proceedings. FPL began installing 90-foot high poles for the Parkland Transmission Line along the Hillsboro Canal ROW on or about November 1, 2000. By mid-November 2000, all Petitioners except Leserra and Smith has seen the poles, made inquiry of various kinds, and learned of FPL's plans to construct the Parkland Transmission Line. Leserra and Smith did not see any poles and had no knowledge about the Parkland Transmission Line until later. See Findings 49-53 and 58, infra. Initial Reaction to Transmission Poles The Boca Winds homeowners who became aware of the installation of the poles just south of the Hillsboro Canal reacted in different ways. Some instantly suspected both the ultimate use of the poles for electrical transmission and that the poles were on WMD ROW. Others suspected the former but not the latter. Several made telephone inquiries of different kinds-some to FPL, some to their homeowner association. Quickly, word spread, and these homeowners, including all Petitioners except Smith and Leserra, began organizing to oppose FPL's Permit. Meetings were held, and many members of the loosely-organized opposition were involved initially, but the group soon turned to and relied heavily on a handful of its members--primarily the Gutmans, Badillo, and Gary Fishman- -to gather information and contact FPL and WMD on behalf of the group. While none of the group was particularly knowledgeable about the legal technicalities of WMD procedures, Jose Gutman was a Florida-licensed lawyer (albeit practicing in patent law), and Fishman had handled the applications of Terwilliger, Tennant, Pam Danko, Rosenman, Badillo, Sturm, and others for WMD NGPs to extend their backyard fence enclosures into WMD's north ROW along the Hillsboro Canal. Although most members of the group did not view Jose Gutman technically as their attorney during this time, Gutman asserted attorney-client privilege as to communications between himself and members of the group beginning in November 2000, and Petitioners' objections to disclosure of these communications were sustained. A meeting between Jose Gutman, Fishman, Badillo, and other Boca Winds residents and various FPL representatives was held on November 8, 2000. During this meeting, the residents essentially complained that they had no notice and asked FPL to relocate the transmission line. FPL responded that the required notice was given and said it would respond to the request to relocate the lines. The next day the homeowners put their requests to FPL in writing. They asked for proposals for relocating the transmission line, for the projected cost of putting the line underground for the 1.3 miles in the vicinity of their homes, for EMF testing of their homes, and for a statement of safety. The Gutmans then began the process of drafting a petition for circulation to residents for signature. Entitled "Petition to Halt Construction of FPL High Power Transmission Lines on the Land Adjacent to Our Homes," the petition stated that the homeowners "hereby petition our government and [FPL] to halt construction . . . [and] relocate the lines away from our communities." The petition stated that the homeowners had no notice until November 1, 2000, and did not consent to the project. It complained about "a significant loss in property value along with the additional serious concern of health risks [namely, leukemia and cancer] to our children that will be playing within the electric and magnetic fields (EMFs) emitted." The petition requested "that our government representatives and FPL engineers promptly halt construction . . . and provide in writing proposed alternative plans for moving these transmission lines away from our communities." The petition was dated November 18, 2000, but signatures were collected after that date. Meanwhile, Jose Gutman and Fishman arranged to meet with WMD representatives at WMD's main offices in West Palm Beach on November 28, 2000. Since they had a follow-up meeting with FPL scheduled for the following day, they were surprised on their arrival to find Daniel Hronec, FPL Principal Engineer on the Parkland Transmission Line project, in attendance, apparently having been notified and invited by WMD. Gutman and Fishman essentially reiterated their complaint of lack of notice and their request to have the transmission line relocated. Discussion ensued on the permitting process used by FPL and WMD. WMD's Laura Lythgoe explained that WMD rules provide for different review criteria and notice requirements depending on the nature of the request.4 She stated that no notice to affected parties is required for ROW use permits, such as the one FPL got for the Parkland Transmission Line. She went on to explain that the procedure for requesting a variance is set out in Section 120.542, Florida Statutes, which only requires notice in the FAW. Fishman complained that the FAW notice was not specific enough. Thomas L. Fratz, WMD ROW Division Director, responded that the notice was legally sufficient. Lythgoe also pointed out that the agenda item gave specifics and was available on WMD's internet web site. In testimony at the preliminary hearing, Fishman recalled a statement being made during the course of discussion that the homeowners had 21 days to petition for a hearing and that the time had expired. Gutman did not recall such a statement being made specifically, but he conceded that the thrust of the discussion was that the proper notice was given and that the homeowners were too late. During the discussion of WMD procedures, Gutman asked for copies of certain documentation being discussed. Gutman also expressed the homeowners' need for legal advice on the subject and asked for a referral to an attorney knowledgeable in the area. WMD agreed to respond to these requests in writing. Towards the end of the meeting on November 28, 2000, Gutman asked how the homeowners could proceed with their grievance. Fratz responded that the homeowners' issue was with FPL, not WMD. Gutman replied that the homeowners could only negotiate with FPL (which they already were doing) but could petition WMD, as their government, to take action to rectify the situation. Gutman indicated that he had a petition with approximately 150 signatures for that purpose. It is not clear whether the petition and signatures were physically presented to WMD at that time, but it is clear that WMD did not direct Gutman to WMD's Clerk's office, which was just down the hall from where they were meeting, to file the petition. The next day, FPL hosted a meeting with the homeowners to respond to their requests made at the meeting on November 8, 2000, and in their letter dated November 9, 2000. FPL confirmed its response in a letter dated November 30, 2000. FPL told the homeowners that there were options for relocating the transmission line but that implementing the options would cost the homeowners between $900,000 and $1.5 million, depending on the option chosen and that a $20,000 engineering deposit would be required up-front. The option of replacing the planned overhead transmission lines with underground lines would be much more expensive--approximately $15 million--and "unquestionably prohibitive." The homeowners considered FPL's proposals to be financially infeasible and unacceptable. By letter dated December 1, 2000, WMD provided Jose Gutman and Fishman documentation in response to their request during the meeting on November 28, 2000. Included were copies of the agenda for the Governing Board's meeting on July 13, 2000, and Section 120.542, Florida Statutes (2000). The letter stated that Section 120.542 applied, not Section 403.201 (applicable to the Department of Environmental Protection), which Gutman and Fishman apparently cited at the meeting. The letter also stated that there was no requirement for publishing or other notification to affected parties for issuance of a ROW permit. Attorney Walker and the Board Meeting December 14, 2000 After the meetings and letters, the homeowners decided that it would be necessary to appeal directly to WMD Governing Board. They also decided that they needed competent legal representation to assist them. Amy Gutman contacted Governing Board member Nicholas J. Gutierrez, Jr., who advised the homeowners to bring their grievances to the next Board meeting on December 14, 2000. Gutierrez put Amy Gutman in contact with the Board's meeting coordinator, Sandra Gomez, who scheduled the homeowners to participate in the public comment portion of the upcoming Board meeting on December 14, 2000. Meanwhile, Jose Gutman took steps on behalf of the homeowners to retain counsel. After considering several candidates, Gutman eventually settled on Stephen A. Walker and his law firm of Lewis, Longman & Walker, P.A. to represent the group of homeowners (including all Petitioners except Leserra and Smith). Walker served as General Counsel of WMD from 1985 to 1991, and was a frequent practitioner before the SFWMD Governing Board. He also has appeared in cases before the Division of Administrative Hearings. It is not clear from the evidence what documentation Walker obtained from WMD's permit files before appearing on behalf of the homeowners at the Governing Board's meeting on December 14, 2001. However, it is reasonable to infer that, as former WMD General Counsel and an attorney specializing in WMD permitting with extensive experience in that field, Walker was aware of the generally applicable 21-day time limitation for seeking an administrative hearing regarding proposed agency action. Walker also was aware of the difference between petitioning to intervene in a proceeding for the issuance of a permit and asking an administrative agency to initiate proceedings to revoke a permit that has already been issued. Whether Walker communicated this knowledge is not clear from the evidence because Petitioners objected to questions seeking disclosure of attorney-client communications, and the objections were sustained. However, it can be inferred from all of the evidence that such communications probably took place. Walker and the homeowners not only appeared for the public comment portion of the Governing Board's agenda for December 14, 2001, they also conducted a protest demonstration that caused a disturbance in the hallway outside the meeting room during an earlier part of the agenda. Attempting to ascertaining the reason for the disturbance, the Chairman of the Governing Board, Michael Collins, asked WMD Ombudsman, Richard E. Williams, to attempt to gain some understanding of the reason for the demonstration and to suggest possible solutions. When it was made known that Fratz and other WMD staff already had met with the homeowners and FPL, Collins asked that Fratz be included. Williams then met with the homeowners, FPL, and some WMD staff in the nearby WMD cafeteria. When the situation was explained to Williams, he suggested that all parties agree to give him time to gather additional facts and try to mediate an "acceptable agreement" to report back to the Governing Board at its meeting in January 2001. In the meantime, it was agreed that FPL would postpone construction in the vicinity of the homeowners and that the homeowners would postpone pursuit of their grievance. This was acceptable and agreed by all involved. When FPL and the homeowners returned to the Governing Board meeting for the public comment portion, Walker appeared on behalf of the homeowners. Walker summarized the history of FPL's Permit and waivers. He asked the WMD Governing Board to do three things: (1) have staff investigate the appropriateness of the issuance of the Permit in the first instance; (2) based upon that investigation, partially revoke FPL's Permit; and (3) have Williams continue to work with the homeowners and FPL in an effort to find a solution. The Gutmans, Tennant, Terwilliger, and Badillo also addressed the Governing Board to ask that FPL's Permit be revoked. Jose Gutman advised the Governing Board that the homeowners had a petition (by then with 256 signatures) with a cover letter that would provide the Board a summary of the issues. He offered to provide the Board with copies and was directed to hand them to Darrell Bell, a member of the staff of WMD's Clerk's office, who would make sure all Board members got a copy. The other speakers expressed their concerns about EMF, aesthetics, and property values. Collins then asked the WMD's General Counsel, John Fumero, to identify the Board's options. Fumero advised that the Board could modify, revoke or suspend FPL's Permit but that, before taking such action, the Board would want to know the facts and understand the consequences of each option. Without taking a formal vote, the Board asked staff to investigate the facts and report back at the next meeting. Walker advised the Board, and Dan Hronec on behalf of FPL concurred, that FPL had temporarily stopped construction near where his clients lived while it continued work on other portions of the transmission line. Smith's First, Incomplete Knowledge Smith saw a tall concrete structure off to the left of the main entrance to Little Palm Lane when he visited his home for approximately four days in late December 2000. He denied seeing any other poles (although all of the poles behind the Boca Winds homes were installed by then). Smith explained that he spent most of his time during this visit in the house or in the backyard where the poles would be less visible. Although Smith admitted that he was outside in front of his house, where the poles would have been more visible, at times during his visit in December and that he can now see the poles and lines from inside his house through any front window on either the first or second story, Smith's testimony as to what he saw in December 2000 is accepted and credited. Likewise, Smith's testimony that he did not realize the purpose of the pole he saw or its location on WMD ROW is accepted and credited. Walker's Review of WMD Documents As part of his representation of the homeowners, Walker or one of his subordinates obtained copies of at least parts of WMD's official agency file on FPL's Permit. Walker's files contained several partial copies of FPL's Permit; there also was a Notice of Rights form (the kind attached to the Order Granting Waiver). Walker's file also contained other materials that are found in the WMD's file on FPL's Permit, such as the standard form letter that accompanies each permit transmittal. Fishman understood that Jose Gutman had asked Walker or one of his subordinates to go to WMD and undertake an investigation regarding the issuance of FPL's Permit. Gutman did not confirm Fishman's understanding, and Walker denied that he or anyone from his staff went to WMD's main office in West Palm Beach to investigate the issuance of FPL's Permit and obtain the documentation in his file. It is possible that Walker was given the documents by one or more of the homeowners. Walker also testified at hearing that he could not recall when he obtained the documentation that was in his file. However, based on the record evidence, it is reasonable to infer that this occurred prior to January 8, 2001, as Walker sent a letter to WMD on that date which described the Permit in detail and to which he attached copies of FPL's Permit, FPL's permit and waiver applications, and several items of WMD correspondence from the permit file. Failure of Mediation; Board's Meeting February 14, 2001 After the Governing Board's December 2000 meeting, Ombudsman Williams undertook to schedule separate meetings with the homeowners and with FPL, to be followed by a joint meeting with all involved. It soon became apparent that it would not be possible to conduct all the meetings and be ready to report back to the Governing Board at its January 2001 meeting. In a letter from FPL to Fratz dated January 5, 2001, FPL confirmed that FPL would continue to postpone construction in the vicinity of the homeowners until after the February 2001 meeting of the Governing Board and that, "in return for this concession, the concerned residents have agreed to hold any further action, including comment to the Board, until the February Board meeting." Williams met separately with the homeowners and with FPL, as planned. When Williams contacted Amy Gutman to schedule a joint meeting, she asked whether anything new was being proposed. When Williams said, no, Gutman told him she did not think another meeting would be productive and declined on behalf of the homeowners to participate in one. Apparently, FPL representatives met with WMD staff, and they discussed landscaping to help mitigate the aesthetic concerns of the homeowners. Having declined to participate, the homeowners were not aware of the landscaping proposals (essentially, planting cabbage palms in the ROW.) FPL's Permit and waivers made up an agenda item at the WMD Governing Board's meeting on February 14, 2001. Fratz introduced the item with a presentation. The Board then received public comment from Walker on behalf of the homeowners and from a number of homeowners. Walker, on behalf of all Petitioners except Smith and Leserra, identified three concerns of the homeowners, one of which was the lack of notice. Specifically, Walker stated that the Administrative Procedure Act was involved, that the model rules provide for a point of entry for people wanting to object to a permit, and that his clients did not get the required point of entry. At the conclusion of his presentation, Walker asked the Board to revoke FPL's Permit. When asked by one of the Board members whether there were other options available, Walker stated that he was not aware of an available alternative other than revocation. Petitioners Tennant, Frank Longo, Terwilliger, Jose Gutman, Larry Rosenman, and Badillo also addressed the Board and provided reasons why they believed FPL's Permit should be revoked. FPL then made a presentation, after which the Board discussed the issue and entertained several motions. During the Board's discussion, staff was asked about possible interference with WMD's operation and maintenance of the Hillsborough Canal as a result of the transmission line and about the safety of WMD's workers. These questions were addressed by Fratz, by WMD's Executive Deputy Director, Joe Taylor, and by WMD's Director of Field Operations (South), John Adams. They advised the Board that WMD could adequately operate and maintain the canal with the transmission lines in place and that the safety of WMD's workers would not be compromised. Fratz noted that WMD frequently received requests for waiver of the 40-foot setback from the top of canal banks, and Adams pointed out that WMD does not operate any of its equipment, including cranes with booms, along WMD ROW in winds above 35 miles per hour. After these questions were answered, Board Chair Michael Collins again asked General Counsel, John Fumero, to list the Board's options. Fumero outlined three possible courses of action: (1) to take action relative to the Permit such as revocation, modification or suspension; (2) to take no action with respect to the Permit; or (3) to direct staff to publish notice of the Permit to create a point of entry for an administrative challenge. After some questions from the Board were answered, Board member Dr. Patrick J. Gleason moved to give the homeowners a point of entry, and the motion was seconded. After further discussion, the motion was amended in two respects: (1) the Board would delegate to the executive director the authority to initiate a proceeding to suspend FPL's Permit while the administrative challenge was ongoing; and (2) the Board's action would be based upon information received during the meeting indicating that certain WMD criteria may not be met. The motion, as amended, was defeated by a 7 to 1 vote. A subsequent motion was made for FPL to install and maintain certain landscaping over a portion of the ROW to provide a visual buffer between the homes and the transmission line. That motion passed, 7 to 1. Petitioners (except Smith and Leserra, who still had no knowledge of events taking place and did not participate in the meeting on February 14, 2001) understood that the Governing Board had refused to initiate revocation proceedings at the meeting. Although some Petitioners expressed willingness to hear more about the landscaping proposal, which was new to them, Petitioners also already knew that the landscaping alternative proposed would not be acceptable to them and that they still wanted FPL's Permit revoked. After the Board's vote, several Petitioners, including Jose Gutman, Badillo, and Rosenman (as well as Fishman) talked to Walker about other avenues to pursue in their continued opposition to FPL's Permit. This discussion included advice on seeking a formal administrative hearing. It is highly likely that, even if Walker did not have all his documentation from WMD's file on FPL's Permit by January 8, 2001, he had them by the Governing Board's meeting on February 14, 2001. During the meeting, Walker introduced exhibits that he indicated were retrieved from WMD's file on FPL's permit. These included a copy of the Notice of Rights attached to the Order Granting Waiver. Walker advised the homeowners for the last time after the meeting on February 14, 2001, before his clients left the meeting. His representation was terminated shortly thereafter. Petitioners have invoked attorney-client privilege to preclude discovery of the precise substance of the discussion with Walker after the meeting on February 14, 2001- -in particular whether the various jurisdictional time limitations were discussed. However, it is reasonable to infer that Walker shared this information with the homeowners, including the information contained in the Notice of Rights attached to the Order Granting Waiver, before terminating his representation. Leserra's Knowledge and the Petition Petitioner Leserra first learned of the installation of high-voltage transmission line poles in the vicinity of his home in approximately February 2001. The closest pole was just 69 feet away from his home, across Loxahatchee Road. Leserra contacted State Representative Stacy Ritter to complain, and his office contacted WMD and obtained information concerning the project in mid to late-February 2001. A letter sent by Representative Ritter's office to Leserra on February 28, 2001, and received by Leserra shortly after March 2, 2001, stated that the line in question was located on property determined to be owned by WMD. Leserra testified that, even after receiving this information, he did not know how WMD's ownership was determined and still did not know for certain of WMD's involvement at the time. In early March 2001, a friend informed Leserra that homeowners in Boca Winds in Palm Beach County were having a similar problem with installation of high-voltage transmission lines near their homes and gave him Teresa Badillo's name and telephone number. Leserra telephoned her and was told that there was a meeting about it at WMD in February 2001. Badillo gave Leserra Jose Gutman's name and number for additional information. Badillo testified that she also told Leserra about FPL's Permit to use WMD's ROW. Leserra does not recall her saying that. Even if she did, Leserra did not even know where Boca Winds was at the time and did not know that Boca Winds was being affected by the same transmission line project that was affecting him. On March 12, 2001, Leserra wrote to FPL and WMD and threatened that he would hold WMD responsible for any adverse impact from the FPL facilities on the Hillsborough Canal. At the time he sent the letter, he had not yet been able to speak to Jose Gutman. At some point during the next four days, Leserra was able to contact Jose Gutman by telephone. Gutman explained the Boca Winds situation in detail, including the homeowners' intention to request an administrative hearing, and Leserra agreed to be a co-petitioner. Since Petitioners objected to disclosure of communication with Gutman on grounds of attorney-client privilege, it is not clear that Gutman imparted to Leserra information as to the Notice of Rights attached to the Order Granting Waiver to FPL or the deadline for petitioning for an administrative hearing. But it can be inferred that the former was communicated and that the latter was discussed. On March 16, 2001, Amy Gutman contacted Ombudsman Williams to tell him that the homeowners no longer were represented by Attorney Walker but, along with Leserra now, wanted to petition for an administrative hearing, wanted to know their rights, and wanted assistance in understanding the process to avail themselves of their rights. On March 20, 2001, Williams relayed this information to Deputy Executive Director Taylor and General Counsel Fumero for handling. The office of WMD General Counsel responded to Williams' request by sending a letter dated March 22, 2001, to Amy Gutman, on behalf of the homeowners, enclosing a copy of the Order Granting Waiver, with Notice of Rights, which "explains the various remedies that are available to anyone substantially affected by a decision of the District." After receipt of the letter with copy of the Order Granting Waiver with Notice of Rights, Amy Gutman and some of the homeowners (including all Petitioners except Ballard Smith) decided to file a petition for administrative hearing. Suzanne Terwilliger telephoned WMD office of General Counsel to get sample petitions, which were faxed to her on April 3, 2001. Terwilliger drafted a Petition for Formal Administrative Hearing (Petition) and telephoned WMD to see if it could be filed by fax. She was told Sandra Gomez would call her back. Terwilliger called again on April 6, 2001, angry that she had gotten no response from Gomez and that FPL was energizing the transmission line which had been completely installed since February 14, 2001. Told that it could be filed by fax, the Petition was filed in that manner on April 6, 2001. The Petition was filed by Terwilliger, Amy Gutman, and Leserra purportedly on behalf of unnamed residents of several residential areas in southwest Palm Beach County. On April 11, 2001, FPL filed a Motion to Dismiss asserting that the Petition was untimely, that WMD had no jurisdiction over the matters raised in the Petition, and that Petitioners had no standing. Smith's Knowledge and Joinder; Amended Petition There was no evidence that Ballard Smith knew anything at all about what transpired between the homeowners, FPL, and WMD from December 2000 through April 13, 2001. Smith visited his home in Boca Winds again during Easter weekend 2001. When he arrived, he was shocked to see the transmission line in place. On April 14, 2001, he talked to his neighbors, the Gutmans, who informed him of some of what had transpired between the homeowners, FPL, and WMD from December 2000 through April 13, 2001, including FPL's Motion to Dismiss the Petition. He agreed to give Gutman an affidavit to help oppose the Motion to Dismiss and to join the Petition. As set out in the Preliminary Statement, on May 3, 2001, the original Petitioners filed the Affidavit of Ballard Smith as part of their opposition to FPL's Motion to Dismiss. In it, Smith swore that he lived in Bradenton and was not aware of WMD's actions until April 14, 2001; he also swore that he "substantially agrees" with the Petition and "joins with the Petitioners in this Case No. 01-1504." While not clear from the Affidavit itself, Smith clarified in his testimony that he intended by the Affidavit to join in the Petition. On May 18, 2001, Petitioners filed an Amended Petition. The Amended Petition listed 13 individual Petitioners--those included in the above-caption (including Smith), plus one other who later voluntarily dismissed and was dropped. The Amended Petition states that Petitioners' interests in this proceeding are based on the following concerns: (i) the effects of electromagnetic fields (EMF); (ii) impact on Petitioners' property values; (iii) aesthetics and loss of quiet enjoyment; (iv) structural safety; and (v) interference with radio and television. Several Petitioners testified to concerns that the transmission line would interfere with the operation of the Hillsborough Canal and cause their properties and roads to flood, and Tennant testified that the transmission line interfered with her husband's fishing in the canal. The Amended Petition did not allege that these things affected Petitioners in particular, as opposed to the community in general. But they were heard without objection and by implied consent. Likewise, Tennant's testimony about her family's canoeing and kite-flying being impacted by the transmission line were heard without objection and by implied consent. EMF Petitioners Badillo, Smith, Rosenman, Weinstein, Tennant, and the Gutmans expressed concerns about EMF generated by transmission lines (although Smith disclaimed any personal interest in the issue.) The remaining Petitioners did not express EMF concerns. The only competent, substantial evidence in the record on Petitioners' medical concerns about EMF were two booklets--one produced in 1995 by the National Institute of Environmental Health Sciences and the United States Department of Energy, and another produced by the Department of Engineering and Public Policy of the Carnegie Mellon University--which FPL provides to those asking for information about EMF. These booklets did not prove that medical or health impacts on Petitioners are likely as a result of the Parkland Transmission Line. Far from proving immediate injury, these booklets at most were only enough to generate some speculation about possible medical or health impacts. Property Values and Aesthetics The Amended Petition states that the presence of the Parkland Transmission Line will adversely impact Petitioners' property values, decreasing values by 20-30 percent. This claim is coupled with claims regarding the aesthetics of the facilities. As to property values, there was no competent, substantial evidence in the record to support Petitioners' contentions. Petitioners made no attempt to substantiate their expressed concern of a drop in property values. They presented no expert evidence regarding property values, none that sales of homes in the area have been or will impacted, and none that the sale price of any home has been lower than it would have been without installation of the transmission line. As for aesthetics, the only evidence was the opinions of several Petitioners who testified that the transmission lines are unsightly. Even if this was enough to prove diminished aesthetics, at least for Petitioners closest to the transmission line, there was no evidence to causally connect diminished aesthetics to a reduction in property value, so as to be actionable in this proceeding. Structural Safety Petitioners presented no competent, substantial evidence that the Parkland Transmission Line is structurally unsound or in any reasonable danger of failure. FPL presented ample evidence to the contrary. The Parkland Transmission Line is designed to meet FPL's internal standards. FPL's internal standards are more stringent (i.e., designed to withstand heavier loads) than the present regulatory requirements for wind-loading and structural safety. FPL's internal standards are also more stringent than the voluntary standards for electric transmission facilities developed by the American Society of Civil Engineers (ASCE). The structural strength of FPL's transmission line also exceeds the requirements of both the Broward and Palm Beach County building codes. Based largely on FPL's stringent internal standards, the National Electrical Safety Code (NESC) is being revised to improve the wind-loading standards for electric transmission poles. Because the new standards are based on FPL's existing internal standards, the Parkland Transmission Line structures are designed to comply with the new NESC that is currently in the final stages of development. FPL's stringent design standards make the possibility for Petitioners to be affected by a failed transmission pole or conductor extremely remote and speculative. Petitioners have expressed a concern over the effects of hurricanes on FPL's concrete transmission poles. However, it is highly unlikely that any portion of the transmission line would fail in a hurricane. FPL's experience reveals that no concrete transmission pole has ever been lost to a Category 3 hurricane, which is a 1-in-100 storm event. Hurricane Andrew, which was a 1-in-400 year storm event, was the only hurricane known to have affected such poles. Even then, 92 percent of FPL's poles stood up. The likelihood of a storm of that magnitude hitting the area where Petitioners' homes are located is very remote. Additionally, the poles along the Parkland Transmission Line are built to FPL's post- Andrew standards and have more load-bearing capacity than the poles in place during Andrew. Petitioners questioned the credibility of FPL's evidence on the structural integrity of FPL's transmission poles and lines, contending that FPL's design calculations for wind-loading failed to increase the basic design wind speed by the terrain factor for exposure category "D." According to the "Guidelines for Electrical Transmission Line Structural Loading," ASCE Manual No. 74, Exposure D is "described as unobstructed coastal areas directly exposed to wind flowing over large bodies of water." Petitioners contend that Exposure D applies because the Hillsboro Canal "runs for miles along the transmission line." But FPL Structural Engineer, C. Jerry Wong, Ph.D., P.E., testified clearly and persuasively that the presence of the Hillsboro Canal does not place the Parkland Transmission Line in an Exposure D setting. Even if failure of a pole were to occur during a hurricane, the chance that a pole would fall and hit one of Petitioners' homes still would be remote. For all Petitioners except Leserra, the poles are too far away for that to happen. The poles, which weigh 45,000 pounds apiece, are too heavy to become airborne. Petitioners presented no competent, substantial evidence suggesting that either a pole or electric conductor could somehow become airborne and reach the property of any Petitioner except Leserra. The only record evidence on this point established that, when there is a structural failure, the pole and the conductor fall down approximately right below where the transmission line is located. The odds of one of these homes being hit by a pole or transmission line due to high winds are almost zero. Even in the case of Leserra, who is the closest to the transmission line at approximately 69 feet away, the odds of his house being hit by a pole due to high winds is less than two-tenths of one percent. Because the transmission line is designed to have higher structural capacity than required by local building codes, it is likely that any winds strong enough to have the potential to damage the line would also destroy surrounding homes. It is far more likely that Petitioners' homes would be destroyed and strike the transmission line than the other way around. In any event, if a hurricane was strong enough to topple one of FPL's transmission line poles or blow down lines, it also would be strong enough already to have destroyed Petitioners' homes. So even if by some bizarre and remote chance a pole or wires blew into one or more of Petitioners' homes, the homes probably already would have been destroyed by such a storm. Petitioners next expressed concern regarding one of the poles being struck by a vehicle, such as a fully-loaded commercial truck. For most Petitioners, even if a truck could knock down a pole, the pole would not reach their property. Only Leserra's home is close enough for there to be any possibility of this happening. Even in Leserra's case, it is next to impossible for a truck to cause one of the poles to fall. The only truck traffic near the poles is on Loxahatchee Road, which runs parallel to the pole line. The poles are separated from the road by a guard rail designed to withstand a 50 mile per hour (mph) collision. The maximum weight of a truck allowed on the road is 80,000 pounds. Such a truck would have to hit a pole at a near right angle and at over 100 mph to have any chance of causing a failure. Because the trucks travel parallel to the pole line, and there is a guardrail in the way, the chance of failure from a collision is extremely remote and speculative. In essence the truck would need to make a 90- degree turn near the pole, break through the 50-mph guard rail a few feet away, and still be traveling at over 100 mph at the time it struck the pole. Then, the pole would have to fall in the opposite direction from the impact to hit Leserra's home. The odds of something this bizarre happening are extremely remote. Finally, it is noted that FPL's Permit has an indemnity clause, which "requires that FPL hold and save the South Florida Water Management District and its successors harmless from any and all damages, claims or liabilities which may arise by reason of the construction maintenance or use of the work or structure involved in the permit." Since this makes it clear that any liability resulting from the presence of the transmission line must be borne by FPL alone, any claim that a structural failure could lead to liability for WMD is speculative at best. Flooding Concerns Several Petitioners testified to concerns about flooding in the Boca Winds subdivision by blocking of subdivision drainage culverts that flow into the Hillsborough Canal or by interference with WMD's routine maintenance of the canal. But Petitioners presented no competent, substantial evidence that flooding for these reasons would be likely. There are two box culverts leading from Boca Winds into the Hillsborough Canal. But, as required by WMD rules, the Boca Winds storm water system is designed to accommodate a 3-day long, 1-in-100 year storm event, with no external outflow. In other words, the system is designed to function without the drainage culverts in even this extreme rainfall condition. There is only a one-percent chance that a 1-in-100- year rainfall event would hit Boca Winds in any given year. In any storm of this magnitude or less, the onsite system would be sufficient to accommodate the rainfall with no flooding of the floor elevation of Petitioners' homes. The possibility that any one storm event would even require drainage into the Hillsborough Canal to prevent flooding in Boca Winds is therefore remote. The culverts leading to the Hillsboro Canal essentially provide additional drainage capacity to the internal storm water management system of Boca Winds. In addition, by slowly draining ("bleeding") water from the Boca Winds subdivision to the canal, they allow the system to recover capacity for subsequent rain events. It is highly unlikely that a transmission pole, even if it was to shear off and fall toward the canal-which is in itself an extremely remote possibility--could in any way impede the functions of either the drainage structures or the canal. Even if a pole were to fall and directly strike and crush one of the two drainage structures, it probably would not appreciably affect the culvert's ability to bleed water into the canal. The drainage into the structures is controlled initially by a weir at the inflow point, not by the pipe diameter at the outflow. Even if a pole were to somehow crush the outflow pipe, water would continue to flow into the canal at roughly the same rate. A pole falling into the canal itself would not affect the ability of the canal to provide drainage. If a pole were to fall into the canal, it would most likely do so top first. Because the pole is tapered, only a small cross section would enter the canal, which would have almost no effect on the flow of water. Even assuming that a pole were to enter the canal in its entirety, it would affect only a minimal portion of the canal cross section and would not significantly affect the flowage capacity of the canal. Even multiple poles falling completely in the canal--an extremely unlikely event--would not significantly affect the function of the canal, due to the small cross-section taken up and the distance between the poles. Most maintenance of the Hillsborough Canal is done with herbicides and from boats in the canal itself. There is rarely a need to use heavy land-based equipment to maintain a drainage canal. The Parkland Transmission Line is on the south bank of the canal, and the Permit provides for the poles to be set approximately 450 feet apart and more than 14 feet from the top of the canal bank. (In many instances the poles are much more than 14 feet from the top of the canal bank). The Permit provides that the poles are to be installed with turn structures that allow at least a 14-foot passing zone around each pole. This is sufficient for the types of vehicles used by WMD to pass around the poles, assuming there was a need to drive along the south bank of the canal. Most heavy equipment can operate from the passing pad and from the space between poles. When heavy equipment is needed, a backhoe or grade- all is typically used. Both of these types of equipment can operate unimpeded from the south side of the canal. A grade- all operating from the south bank has sufficient reach to dredge the bottom of the canal should that be necessary and is the optimal piece of equipment for such an operation. The transmission line would not affect the operation of a grade- all from the southern bank of the canal. Because of the higher elevation, a grade-all would not be used from the north bank, and a crane would be used if there were a need to conduct dredging from that direction. However, because of its location, the transmission line would not impede any equipment use on the north bank. Moreover, if any extensive dredging were done, the routine method would be to operate from a barge on the canal itself, which would also not be affected by the transmission line. There also is no way that the presence of the transmission line could affect the maintenance of the outfall structures from Boca Winds. Any maintenance of those structures would be performed from the north bank of the canal-the side opposite to the transmission line-or from boats or barges operating in the canal. Petitioners introduced evidence to prove that, in some instances, the poles may not have been installed as provided in the permit, with not enough room between the poles and the top of the bank on one side or Loxahatchee Road on the other. It was not clear from their evidence whether this may have occurred in more than two instances, or in any instance other than where the transmission line intersected the canal and changed direction near a culvert. Even if proven, these would have amounted to compliance enforcement issues, not permitting issues. It was not proven that the installation design at these locations was improper; if installation was designed properly but implemented improperly, it was not proven that installation as designed was impossible at these locations. Finally, it was not proven that the installation hampered canal maintenance. Leserra also expressed concerns about flooding of his property from a north-south drainage ditch along his property line, which conveys water from the south to a box culvert under Loxahatchee Road to the Hillsboro Canal, draining a significant area in the vicinity of Parkland. There was little evidence on the operation of Leserra's drainage ditch. The little evidence presented was insufficient to prove the likelihood of flooding of Leserra's property due to the existence of the transmission line. The evidence presented about the Hillsboro Canal in general suggests that flooding of Leserra's property due to the existence of the transmission line is highly unlikely. Indeed, there was no testimony that water in the Hillsborough Canal has ever risen above its banks, even in major rain events. Recreational Use of Canal Tennant testified that her husband regularly used the Hillsboro Canal for fishing and canoeing before the transmission line was installed. The transmission line does not physically obstruct canoeing or fishing in the canal, but her husband chooses not to canoe or fish in the canal any longer due to medical and health concerns and for aesthetic reasons. He does not enjoy those activities as much any more due to the transmission line being there both visibly and audibly. (It makes a noise described as "buzzing" or "humming.") Tennant also testified that her family used to fly kites from the dirt road in the ROW along the north side of the canal behind their home. Due to the proximity of the transmission line, this activity no longer is safe and has been discontinued.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the South Florida Water Management District enter a final order dismissing the Amended Petition for lack of standing. DONE AND ENTERED this 27th day of February, 2002, in Tallahassee, Leon County, Florida. ___________________________________ J. LAWRENCE JOHNSTON 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 27th day of February, 2002.
Findings Of Fact Petitioner, Edward W. Horsman, filed an application August 14, 1984, pursuant to Chapter 489, Florida Statutes, for certification by examination as an electrical contractor. On October 12, 1984 Respondent denied Petitioner's application on the basis that he lacked sufficient experience in the trade to qualify for the licensure examination. Section 489.521, Fla. Stat., and Rule 21GG-5.02(1), F.A.C. Petitioner filed a timely request for a hearing pursuant to Section 120.57, Fla. Stat. Petitioner has 20 years experience in the electrical construction industry. From 1965-1980 Petitioner was employed by Spaulding Electric Company, an electrical contractor in Detroit, Michigan. While employed by Spaulding, Petitioner worked as a wireman for one and one-half years, a foreman for one and one- half years, a field superintendent for four years, an estimator for one and one-half years, chief estimator for one and one-half years, and as manager of electrical construction for five years. Petitioner's managerial and supervisory experience included supervision of draftsmen in plan preparation, bid estimates, negotiation of contracts, overall supervision of construction, scheduling and purchasing. From 1980-1982 Petitioner was employed by Lastar Electric Company, an electrical contractor in Madison Heights, Michigan. Petitioner's managerial and supervisory experience at Lastar comported with his duties at Spaulding. In December 1982 Petitioner was laid off by Lastar, due to an economic recession which plagued Detroit, Michigan. From December 1982 until February 1984, Petitioner operated his own consulting firm in Rochester, Michigan, providing estimating and project management services for electrical contractors. Business was poor, and few contracts were acquired. In February 1984 Respondent relocated to Englewood, Florida, and undertook his current employment with Baldwin Electric, Inc. Respondent seeks to be licensed as the qualifying agent for Larry's Electric, Inc., a wholly owned subsidiary of Baldwin Electric, Inc.
Findings Of Fact PROCEDURAL MATTERS 12 PROJECT DESIGN 16 ENGINEERING DESIGN, CONSTRUCTION, AND MAINTENANCE 17 Design 17 Construction 21 Maintenance 23 SYSTEM RELIABILITY AND SEPARATION FROM EXISTING TRANSMISSION LINES 24 THE TREASURE COAST REGIONAL PLANNING COUNCIL CORRIDORS FROM MIDWAY SUBSTATION TO CORBETT SUBSTATION 29 DESCRIPTION OF THE TCRPC CORRIDORS 29 Land Uses 29 Unusual Uses or Restricted Areas - Cemeteries 32 Water Resources 32 Vegetation 33 Wildlife 33 IMPACTS ON THE PUBLIC OF THE TCRPC CORRIDORS 34 Land Use Impacts 34 Impacts on Unique Uses or Restricted Areas - Cemeteries 41 Landscape Architecture and Visual Impacts 41 IMPACTS ON THE ENVIRONMENT OF THE TCRPC CORRIDORS 43 Water Resources Impacts 43 Vegetation Impacts 44 Wildlife Impacts 45 THE SOUTH FLORIDA WATER MANAGEMENT DISTRICT CORRIDOR FROM CORBETT SUBSTATION TO LEVEE SUBSTATION 45 DESCRIPTION OF THE SFWMD CORRIDOR 45 Land Uses 45 Water Resources 48 Vegetation 49 Wildlife 50 IMPACTS ON THE PUBLIC OF THE SFWMD CORRIDOR 51 Land Use Impacts 51 Unique Proposed Uses 52 Landscape Architecture and Visual Impacts 52 Other Consideration - Impacts to Sugar Cane 53 IMPACTS ON THE ENVIRONMENT OF THE SFWMD CORRIDOR 54 Water Resources Impacts 54 Vegetation Impacts 55 Wildlife Impacts 56 DUDA CORRIDOR 1/1A FROM MIDWAY SUBSTATION TO CORBETT SUBSTATION 57 DESCRIPTION OF DUDA CORRIDOR 1/1A 57 Land Uses 57 Unique Uses or Restricted Areas - Airports 58 Water Resources 59 Vegetation 59 Wildlife 59 IMPACTS ON THE PUBLIC OF DUDA CORRIDOR 1/1A 59 Land Use Impacts 59 Impacts on Unique Uses or Restricted Areas - Airports 60 Landscape Architecture and Visual Impacts 61 IMPACTS ON THE ENVIRONMENT OF DUDA CORRIDOR 1/1A 62 Water Resources Impacts 62 Vegetation Impacts 62 Wildlife Impacts 62 DUDA CORRIDOR 2/2A FROM MIDWAY SUBSTATION TO CORBETT SUBSTATION 63 DESCRIPTION OF DUDA CORRIDOR 2/2A 63 Land Uses 63 Unique Uses or Restricted Areas - Airports 64 Water Resources 65 Vegetation 65 Wildlife 65 IMPACTS ON THE PUBLIC OF DUDA CORRIDOR 2/2A 65 Land Use Impacts 65 Impacts on Unique Uses or Restricted Areas - Airports 66 Landscape Architecture and Visual Impacts 67 IMPACTS ON THE ENVIRONMENT OF DUDA CORRIDOR 2/2A 67 Water Resources Impacts 67 Vegetation Impacts 67 Wildlife Impacts 68 CONSISTENCY WITH LOCAL GOVERNMENT COMPREHENSIVE PLANS 68 CONSISTENCY OF THE TCRPC CORRIDOR WITH LOCAL PLANS 68 St. Lucie County 68 Martin County 68 Palm Beach County 69 CONSISTENCY OF THE SFWMD CORRIDOR WITH LOCAL PLANS 69 Palm Beach County 69 Broward County 69 Dade County 70 THE SITE FOR THE CONSERVATION SUBSTATION 71 SYSTEM PLANNING AND ENGINEERING 71 System Planning 71 Engineering 72 DESCRIPTION OF THE SITE FOR CONSERVATION SUBSTATION 73 Land Uses 73 Vegetation 74 Wildlife 74 IMPACTS ON THE PUBLIC OF THE PROPOSED SITE FOR CONSERVATION SUBSTATION 74 Land Use Impacts 74 Landscape Architecture and Visual Impacts 74 Consistency with Local Comprehensive Plans 75 IMPACTS ON THE ENVIRONMENT OF THE SITE FOR CONSERVATION SUBSTATION 75 Vegetation Impacts 75 Wildlife Impacts 75 COSTS FOR THE LEVEE-MIDWAY TRANSMISSION LINE 76 ELECTRIC AND MAGNETIC FIELDS 77 Compliance with EMF Rule 77 Lightning 78 Noise 78 Radio and Television Interference 79 NONPROCEDURAL REQUIREMENTS OF AGENCIES 80 Conditions of Certification Agreed to by FPL 80 Supplemental Conditions Agreed to by FPL and SFWMD 83 Conditions of Certification Proposed by SFWMD but Opposed by FPL 85 Conditions of Certification Proposed by GFWFC 87 Local Government Zoning 89 Stipulations for Settlement Entered into by FPL 91
Conclusions Corridors That Remain Certifiable 93 Standing 94 CRITERIA TO EVALUATE CORRIDORS THAT REMAIN CERTIFIABLE 95 Compliance with Section 403.529(3)(a), Florida Statutes 96 Compliance with Section 403.529(3)(b), Florida Statutes 97 Compliance with Section 403.529(3)(c), Florida Statutes 98 Compliance with Section 403.529(3)(d), Florida Statutes 100 Compliance with Section 403.529(3)(e), Florida Statutes 101 Impacts on the Public 101 Impacts on the Environment 104 Compliance with Section 403.529(4)(a), Florida Statutes 106 Compliance with Section 403.529(4)(c), Florida Statutes 107 CONSERVATION SUBSTATION 108 RECOMMENDATION 109
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Governor and Cabinet, sitting as the Siting Board, enter a Final Order and therein dismiss the parties who failed to make and appearance; ratify the partial Summary Recommended Order; and grant certification for the location of the Levee-Midway Transmission Line in TCRPC Corridor 1 and the SFWMD Corridor and for the construction and maintenance of the transmission line within those corridors as proposed in the application and in accordance with the conditions of certification contained in Appendices C, D, E, F, G, H, I, and K, as modified and recommended on pages 98 and 99 herein. DONE AND ENTERED this 2nd day of March, 1990, in Tallahassee, Florida. DIANE K. KIESLING, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of March, 1990. * APPENDIX TO RECOMMENDED ORDER * Appendix to this Recommended Order is available for review in the Division's Clerk's Office. COPIES FURNISHED: Carlos Alvarez David L. Powell Richard W. Moore Attorneys at Law Hopping Boyd Green & Sams, P.A. 123 South Calhoun Street (32301) Post Office Box 6526 Tallahassee, FL 32314 Attorneys for Florida Power and Light Company Richard T. Donelan, Jr. Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road, Room 654 Tallahassee, FL 32399-2400 Attorney for Department of Environmental Regulation James V. Antista, General Counsel Florida Game and Fresh Water Fish Commission 620 South Meridian Street Tallahassee, FL 32399-1600 Attorney for the Game and Fresh Water Fish Commission Frances Jauquet John J. Fumero Attorneys at Law South Florida Water Management District 3301 Gun Club Road (33406) Post Office Box 24680 West Palm Beach, FL 33416-4680 Attorneys for South Florida Water Management District 1 Katherine Funchess Senior Attorney Department of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100 Attorney for Department of Community Affairs Roger G. Saberson, Attorney at Law Treasure Coast Regional Planning Council E. Atlantic Avenue Delray Beach, FL 33444 Attorney for Treasure Coast Regional Planning Council Samuel S. Goren, Attorney at Law Josias & Goren, P.A. 3099 East Commercial Boulevard, Suite 200 Fort Lauderdale, FL 33308 Attorney for South Florida Regional Planning Council Fred W. Van Vonno Assistant County Attorney Martin County 2401 S.E. Monterey Road Stuart, FL 34996 Attorney for Martin County Patrick M. Casey Assistant County Attorney Dade County Metro-Dade Center N.W. 1st Street, Suite 2810 Miami, FL 33128-1993 Attorney for Dade County Krista A. Storey Assistant County Attorney St. Lucie County 2300 Virginia Avenue, Annex Fort Pierce, FL 34982 Attorney for St. Lucie County Noel M. Pfeffer, Deputy General Counsel Broward County Governmental Center, Suite 423 115 South Andrews Avenue Fort Lauderdale, FL 33301 Attorney for Broward County Robert P. Banks Assistant County Attorney Palm Beach County Governmental Complex, 6th Floor 301 North Olive Avenue, Suite 601 West Palm Beach, FL 33401 Attorney for Palm Beach County Andrea L. Moore Assistant City Attorney City of Coral Springs 9551 W. Sample Road Coral Springs, FL 33065 Attorney for City of Coral Springs Richard L. Doody, Attorney at Law Office of City Attorney City of Tamarac 7525 NW 88th Avenue Tamarac, FL 33321-2401 Attorney for City of Tamarac Steven L. Josias, Attorney at Law Josias & Goren, P.A. Centrust Savings Bank 3099 East Commercial Boulevard, Suite 200 Fort Lauderdale, FL 33309 Attorneys for Vesta Vestra, Inc. and the City of Parkland Jon M. Henning, City Attorney City of Sunrise 10770 West Oakland Park Boulevard Sunrise, FL 33351 Lisa N. Mulhall, Attorney at Law Burke, Bosselman & Weaver One Lincoln Place 1900 Glades Road, Suite 350 Boca Raton, FL 33431 Attorney for Town of Davie Heather Ruda, Attorney at Law Gibson & Adams, P.A. 303 First Street, Suite 400 (33401) Post Office Box 1629 West Palm Beach, FL 33402-1629 Attorney for Solid Waste Authority of Palm Beach County Scott Shirley, Attorney at Law Oertel, Hoffman, Fernandez & Cole, P.A. 2700 Blair Stone Road, Suite C Post Office Box 6507 Tallahassee, FL 32314-6507 Attorney for Coral Ridge Properties William L. Hyde, Attorney at Law Roberts, Baggett, LaFace & Richard 101 East College Avenue (32301) Post Office Box 1838 Tallahassee, FL 32302 Co-counsel for Hollywood Lakes Country Club, Inc. Donald R. Hall, Attorney at Law Gustafson, Stephens, Ferris, Forman & Hill, P.A. 540 Northeast Fourth Street Fort Lauderdale, FL 33301 Attorney for Silver Lakes Partnership, Hollywood STS Associates, and the William Lyon Company Donna H. Stinson, Attorney at Law Moyle, Flanigan, Katz, Fitzgerald & Sheehan, P.A. The Perkins House, Suite 100 118 North Gadsden Street Tallahassee, FL 32301 Attorney for Indian Trail Grove, Limited, Irving Cowan, Savin Groves, Kenneth G. Savage, Robert Povey and Harold Wideman, and Sunny Urban Meadows Landowners Association; Indian Trail Scott Mager, Attorney at Law Mager & Gaffney, P.A. The 110 Tower - 12th Floor 110 Southeast 6th Street Fort Lauderdale, FL 33301 Attorney for the Shennandoah Community Association and Jeff Reisburg Water Control District Stephen Covert, Attorney at Law 631 U.S. Highway One, Suite 200 (33408) Post Office Box 14035 North Palm Beach, FL 33408 Attorney for Via Tropical Fruits, Inc.; Ronnie Hattaway; Talquin Corp.; Ralph C. Nash and Mikatum Groves J. A. Jurgens, Attorney at Law Jones, Foster, Johnston & Stubbs, P.A. 505 South Flagler Drive Suite 1100 (33401) Post Office Drawer E West Palm Beach, FL 33402 Co-counsel for Via Tropical Fruits, Inc.; Ronnie Hattaway; Talquin Corp.; Ralph C. Nash and Mikatum Groves Timothy J. Manor Margaret H. Schreiber Attorneys at Law Lowndes, Drosdick, Doster, Kantor & Reed, P.A. 215 North Eola Drive (32801) Post Office Box 2809 Oriando, FL 32802-2809 Attorney for The Coca-Cola Company William J. Payne Dale Konigsburg Donna Stinson Attorneys at Law Rinker Materials Corporation 1501 Belvedere Road (33401) Post Office Box 24635 West Palm Beach, FL 33416-4635 Attorneys for Rinker Materials Corporation Lawrence N. Ctrtin Samuel J. Morley Attorneys at Law Holland and Knight 315 South Calhoun Street, Suite 600 Post Office Drawer 810 Tallahassee, Florida 32302 Attorneys for New Hope Sugar Company, Okeelanta Corporation, Sugar Cane Growers Cooperative of Florida, Inc., South Bay Growers, Inc. United States Sugar Corporation, S. D. Sugar Corporation, Florida Sugar Cane League Alfred J. Malefatto, Attorney at Law Shapiro & Bregman, P.A. Suite 310, East Tower 777 South Flagler Drive (33401) Post Office Box 20629 West Palm Beach, FL 33416-0629 Attorney for FreBar, Inc.; Sugar Belle Joint Venture and Flor Ag Corporation Mark P. Gagnon Stanley D. Klett, Jr. Attorneys at Law Scott, Royce, Harris, Bryan & Hyland, P.A. 4400 PGA Boulevard, Suite 900 Palm Beach Gardens, Florida 33410 Attorneys for A. Duda and Sons, Inc. Leigh A. Williams, Attorney at Law Littman, Littman, Williams & Strike, P.A. 1855 S. Kanner Way (34994) Post Office Box 1197 Stuart, FL 34995 Attorney for VBQ, Inc.; Beach Brooks as Trustee and Individually Darrell White, Attorney at Law McFarlain, Sternstein, Wiley & Cassedy, P.A. 600 First Florida Bank Building (32301) Post Office Box 2174 Tallahassee, FL 32316-2174 Attorney for Allapattah Properties Partnership Michael K. Spotts, Attorney at Law Brennan, Hayskar, Jefferson & Gorman, P.A. 519 South Indian River Drive (34954) Post Office Box 3779 Fort Pierce, FL 34948 Attorney for Reuben Carlton Honorable Bob Martinez Governor, State of Florida The Capitol Tallahassee, Florida 32399 Honorable Robert A. Butterworth Attorney General State of Florida The Capitol Tallahassee, Florida 32399-1050 Honorable Doyle Conner Commissioner of Agriculture State of Florida The Capitol Tallahassee, Florida 32399-0810 Honorable Betty Castor Commissioner of Education State of Florida The Capitol Tallahassee, Florida 32399 Honorable Jim Smith Secretary of State State of Florida The Capitol Tallahassee, Florida 32399-0250 Honorable Tom Gallagher Treasurer and Insurance Commissioner State of Florida The Capitol Tallahassee, Florida 32399-0300 Honorable Gerald A. Lewis Comptroller State of Florida The Capitol Tallahassee, Florida 32399-0350 Eric Simon, Attorney at Law Borkson, Simon & Noskowitz 1500 N.W. 49th Street, Suite 401 Fort Lauderdale, FL 33309 Attorney for Hollywood Lakes Country Club, Inc. Mary M. Viator, Attorney at Law Caldwell & Pacetti Post Office Box 2775 Palm Beach, FL 33480 Attorney for Indian Trail Water Control District Robert D. Miller, Attorney at Law 1675 Palm Beach Lakes Boulevard Tower A, Suite 700 West Palm Beach, FL 33401 Sugar Belle Joint Venture and Flor-Ag Corporation Joseph M. Norton Transmission Line Siting Coordinator Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 Tim Murphy Anita Tallarico Attorneys at Law South Florida Regional Planning Council 3440 Hollywood Boulevard, Suite 140 Hollywood, FL 33021 Attorneys for South Florida Regional Planning Council Kerri L. Barsh, Attorney at Law 1221 Brickell Avenue Miami, FL 33131 Attorney for Graham Companies Donald S. Rosenberg, Attorney at Law 2600 AmeriFirst Building One S. E. Third Avenue Miami, FL 33131 Attorney for Black Island Partnership Robert E. Ferris, Trustee 540 Northeast Fourth Street Fort Lauderdale, FL 33301 Paul H. Amundsen James C. Hauser Attorneys at Law Blank, Hauser & Amundsen 204-B South Monroe Street Tallahassee, FL 32301 Attorney for D.L. Scotto & Company; Indian River Citrus League Frank H. Fee, III, Attorney at Law Fee, Bryan & Koblegard, P.A. Post Office Box 1000 Fort Pierce, FL 34954 Attorney for North St. Lucie River Water Control District Thomas E. Gardner, Executive Director Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, FL 32399 David Swafford, Executive Director Florida Public Service Commission Fletcher Building 101 E. Gaines Street Tallahassee, FL 32399-0875
The Issue The issues to be resolved in this proceeding concern whether the Respondent committed the charged violations of Section 489.127(1)(f), Florida Statutes (2006), and Section 489.531(1)(a), Florida Statutes (2006), and if so, what penalty, if any, is warranted.
Findings Of Fact The Petitioner is an Agency of the State of Florida charged with regulating the practice of contracting and the licensure of those engaged in the practice of contracting of all types, in accordance with Section 20.165, Florida Statutes, as well as Chapters 455 and 489, Florida Statutes. The Respondent engages in re-modeling and other construction-related work both as his own business and employment by a certified general contractor. This case arose upon a Complaint filed with the Petitioner Agency by Mr. Kenneth Hatin. The Complaint asserted his belief that the Respondent had engaged in a contract to construct an addition on his home, and after being paid substantial sums of money, had wrongfully left the job and never finished it. The residence in question is co-owned by Mr. Hatin and his fiancée, Ms. Beverly White. Ms. White's first cousin is Ms. Julie Crawley. Ms. Crawley is the Respondent's fiancée. Mr. Hatin and the Respondent were introduced by Ms. Crawley and Ms. White. Mr. Hatin and the Respondent thus met socially and as they got to know each other discussed Mr. Hatin's desire to have an addition placed on his home. The addition consisted of a pool enclosure to be constructed on his property located at 33 Botany Lane, Palm Coast, Florida. Mr. Hatin expressed the desire to have the Respondent assist him in constructing the pool enclosure. The Respondent agreed to do so. The Respondent is employed by his brother, who is a Florida-Licensed General Contractor, but neither the Respondent nor his business, JR. Wittmer's Remodeling, Inc., are licensed or certified to engage in contracting or electrical contracting. In accordance with his agreement with Mr. Hatin, the Respondent provided labor and assistance with the renovation project, including digging ditches, picking-up supplies and being present at the work site. In addition to the Respondent, other friends and family members of the protagonists assisted with the project, including the Respondent's son, Ms. Crawley's son, Mr. Hatin's employer, Ms. White's brother-in-law, and Mr. Hatin himself. This was, in essence, a joint family/friends cooperative construction project. Over the course of approximately five months during the construction effort, Mr. Hatin wrote checks to the Respondent in the total amount of $30,800.00. All contractors or workmen on the job were paid and no liens were placed on Mr. Hatin's property. The checks written were for the materials purchased and labor performed by tradesmen or sub-contractors engaged by the Respondent and Mr. Hatin for various aspects of the job such as roofing, tile or block laying, etc. The Respondent received no fee or profit in addition to the amounts paid to the material suppliers, contractors, and laborers on the job. It is not entirely clear from the record who prepared the contract in evidence as Petitioner's Exhibit four, or the document that the parties treated as a contract. It is not entirely clear who actually signed it, but the document was drafted relating to the work to be done on Mr. Hatin's home (the contract). Mr. Hatin maintained that the Respondent prepared and signed the contract. Ms. Crawley testified that the contract was actually prepared by herself and Ms. White (for "tax purposes"). It is inferred that this means that the contract was prepared to provide some written evidence of the amount expended on the addition to the home, probably in order to raise the cost basis in the home to reduce capital gains tax liability potential at such time as the home might be sold. The term "tax purposes" might mean other issues or consequences not of record in this case, although it has not been proven that the contract was prepared for a fraudulent purpose. Ms. Crawley testified that the Respondent did not actually sign the document himself but that she signed it for him. What was undisputed was that there were hand-written changes made to the contract so as to include exhaust fans, ceiling fans, sun tunnels, a bathroom door and outside electrical lighting. Although there was a change to the contract for this additional scope of work, there was no increase in the amounts to be paid by Mr. Hatin for such work. After the project was commenced and the addition was partially built, Mr. Hatin and Ms. White were involved in a serious motorcycle accident. Work was stopped on the project for a period of approximately seven weeks, with Mr. Hatin's acquiescence, while Ms. White convalesced. The Respondent, during this time, dedicated all of his time to his regular job and other work commitments. It was apparently his understanding, expressed in Ms. Crawley's testimony, that, due to injuries he received in the accident and more particularly the more serious injuries received by his fiancée, that Mr. Hatin was not focused on the project at that time, but let it lapse until the medical emergency was past. After approximately seven weeks of inactivity Mr. Hatin contacted the Respondent requesting that he begin work on the project again. A meeting was set up between Mr. Hatin and the Respondent. The Respondent however, was unable to attend the meeting with Mr. Hatin that day, tried to re-schedule and a dispute arose between the two. Additionally, family disputes over money and interpersonal relationships were on- going at this time leading to a lack of communication and a further dispute between Mr. Hatin, Ms. White, the Respondent, and Ms. Crawley. A threat of physical harm was directed at the Respondent by Mr. Hatin (he threatened to put out the Respondent's "one good eye" if he came on the subject property again). Because of this, the Respondent elected not to return to the project. Inferentially, at that point the process of filing the subject complaint soon ensued.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that the Administrative Complaint filed herein be dismissed. DONE AND ENTERED this 12th day of June, 2007, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 Clerk of the Division of Administrative Hearings this 12th day of June, 2007. COPIES FURNISHED: Ned Luczynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 E. Renee Alsobrook, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Garvin B. Bowden, Esquire Gardner, Wadsworth, Duggar, Bist & Wiener, P.A. 1300 Thomaswood Drive Tallahassee, Florida 32308 Nancy S. Terrel, Hearing Officer Office of the General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue This proceeding was conducted under the Florida Electrical Transmission Line Siting Act (TLSA), Sections 403.52 through 403.5365, Florida Statutes (2007)1, to determine whether any of the proposed transmission line corridors for the Bobwhite- Manatee 230-kV transmission line (BWM Line) comply with the criteria in Section 403.529(4), Florida Statutes, and, if more than one corridor complies with the criteria, to determine which corridor has the least adverse impact regarding the criteria, including costs. If any of the “corridors proper for certification,” as that term is defined in Section 403.522(10), Florida Statutes, is determined to have the least adverse impact, the Siting Board must determine whether the application for the corridor should be approved in whole, with modifications or conditions, or denied. If the alternate corridor proposed by John Falkner (not a corridor proper for certification) is determined by the Siting Board to have the least adverse impact, certification shall be denied.
Findings Of Fact The Parties FPL is the electric utility that is applying for certification of the Bobwhite-Manatee 230kV Transmission Line. DEP is the state agency with powers and duties to administer the TLSA, including the power and duty to process applications for certification and to act as a clearinghouse for agency comments on proposed corridors. Sarasota County and Manatee County are political subdivisions of the State and the local governments with jurisdiction over the areas in which the BWM Line will be located. Schroeder-Manatee Ranch, Inc. (SMR), is a Delaware corporation with its office in Bradenton, Florida. It owns real property in Manatee and Sarasota Counties, and is the developer of residential communities, including Lakewood Ranch. Lake Club Investors, LLC (LCI), is a Florida limited liability company with its office in Winter Park, Florida. It owns property in Manatee County. Gum Slough Preservation Foundation, Inc. (GSPF), is a Florida non-profit corporation with its office in Sarasota, Florida. GSPS was established with the primary objectives to protect and preserve the beauty and ecological values of Gum Slough. Manasota-88, Inc., is a Florida not-for-profit corporation with its office in Nokomis, Florida. Manasota-88 was formed to protect and preserve the water quality and wildlife of Manatee and Sarasota Counties. John Falkner is a resident of Myakka City, Florida, and the owner of real property in Manatee County. Taylor & Fulton, Inc., is a Florida corporation with its office in Palmetto, Florida. It is the owner of real property in Manatee County. Myakka Ranch Holdings, LLC, and FC, LLC, are Florida limited liability companies with separate offices in Bradenton, Florida. They own real property in Sarasota County. The Concession Land Development, LLC, and The Concession Golf Club, LLC, are Florida limited liability companies with their office in Wichita, Kansas. They are the owners and managers, respectively, of The Concession residential development and The Concession Golf Club in Manatee County. Kittie L. Chapman is a resident of Sarasota, Florida, and the owner of real property in Sarasota County. John Cannon Homes-Eastmoor, LLC, is a Florida limited liability company with its office in Sarasota, Florida. It owns real property in Sarasota County. Schwartz Farms, Inc., is a Florida corporation with its office in Sarasota, Florida. It owns real property in Sarasota County. Michael D. and JoAnne Schwartz are residents and real property owners in Sarasota County. Sarasota One, LLC, is a Florida limited liability company with its office in Bowie, Maryland. It owns real property in Sarasota County. Pacific Land, Ltd, is a Florida limited liability company with its office in Palmetto, Florida. It owns real property in Manatee County. East County Homeowners Organization, Inc., is a Florida non-profit corporation with its office in Sarasota, Florida. It was formed to protect the health, safety, and quality of life of the residents of eastern Sarasota County. Hi Hat Ranch, LLP, is a Florida liability limited partnership with its office in Sarasota, Florida. It owns real property in Sarasota County. Michael Hunsader, David Hunsader, and Donald Hunsader own real property in Manatee County. Bridle Creek Home Owners Association, Inc. (BCHOA), is a Florida non-profit corporation with its office in Sarasota, Florida. BCHOA was formed to represent the owners of real property in the Bridle Creek residential community. Manatee County, the Florida Department of Transportation, and the Southwest Florida Water Management District filed timely notices of their intent to be parties. Sarasota County filed a Notice of Appearance and participated as a party without objection. The Need for the Bobwhite-Manatee Line FPL is seeking certification of a transmission line to transmit electricity from the Manatee Energy Center, a generating facility near Parrish in Manatee County, to the proposed Bobwhite transmission substation near Fruitville Road in Sarasota County. The service area for the proposed BWM Line is an area in Manatee County and Sarasota County that is south of the Manatee Energy Center, north of the planned Bobwhite substation, and east of I-75 and the existing 230kV transmission network. The PSC determined that FPL had demonstrated the need for the BWM Line by December 2011 to: provide additional transmission reinforcement to the existing 230kV transmission network between Manatee and Ringling Substations in a reliable manner consistent with the North American Electric Reliability Corporation (NERC), and the Florida Reliability Coordinating Council (FRCC) and other applicable standards; (b) serve the increasing load and customer base in the projected service area; and (c) provide for another electrical feed via a separate right-of-way (“ROW”) path, thereby reducing the impact of a loss of the existing transmission facilities on a common ROW. The PSC recognized, however, that the “Siting Board will make the final determination concerning the exact length and route of the new line.” The Proposed Corridors (Depicted in FPL Exhibit 77B) 1. The FPL Original Corridor Selection Process FPL established a multi-disciplinary team to identify and evaluate routing alternatives. The team comprised a transmission line engineer, a land use planner, and an ecologist. Because FPL wanted geographic separation from the existing transmission lines that are located in a common ROW that is generally parallel to I-75, the western boundary of the team’s study area began a mile east of this existing ROW. The multi-disciplinary team gathered data on siting opportunities and constraints within the study area. The guidelines developed by the team to select route segments included maximizing collocation with existing or proposed roads, following property lines or section lines as much as possible, following disturbed paths through wetlands where practicable, and minimizing siting constraints such as airports, private airstrips, residential development, and the crossing of existing transmission lines. The team ultimately identified 62 route segments which could be assembled into 1,275 alternate routes for the BWM Line. FPL engaged in an extensive public outreach program to gather public input regarding the BWM Line. The public outreach program was integrated with the corridor selection process so that information was shared with the public and feedback from the public was used in evaluating alternate routes. FPL’s multi-disciplinary team evaluated the 1,275 routes quantitatively, using factors such as the number of homes and schools in proximity; the length of wetlands crossed; the length through existing parks, recreation areas or other designated conservation lands; the number of parcels or lots crossed; and estimated costs. The quantitative analysis was used as a screening tool to limit the number of routes that would receive more detailed analysis. The route that received the highest ranking from the quantitative analysis is the same as The Concession Corridor. The FPL Original Corridor follows the route that was ranked eleventh. The routes that correspond with the subsequently-filed Consensus Corridor and Falkner Corridor were not ranked in the initial screening process because they were not among the 1,275 evaluated routes. The Consensus Corridor passes through a conservation area that FPL’s multi-disciplinary team assumed had to be avoided. The Falkner Corridor was not included because it is in FPL’s existing transmission line ROW, which the team also assumed was not an option. The team then evaluated the highest ranked routes, using both quantitative and qualitative criteria. The qualitative criteria included the functional value of wetlands; the orientation of landing strips to the route; plans for new roads, road extensions and road widenings; proposed developments; “buildability” issues; and the need for future distribution substations. From the more detailed analysis, a preferred route was selected by FPL. This corridor, described in FPL’s application for certification, will be referred to as the FPL Original Corridor. The multi-disciplinary team then determined the varying widths of the FPL Original Corridor along its route that were needed to provide flexibility in locating the ROW within the corridor. The Route of the FPL Original Corridor The FPL Original Corridor exits the Manatee Energy Center north of State Road 62 (SR 62) and turns east for approximately one mile. The corridor then turns south along a section line for approximately five miles, in which area the corridor is approximately 3,000 feet wide. The corridor includes a lateral spur along an existing 50-foot-wide farm road, which is included in the corridor for the sole purpose of providing access to the transmission line from County Road 675 (CR 675). The corridor then intersects CR 675 and follows CR 675 to its intersection with SR 64, in which area the corridor is 400 feet wide and centered on the road. At the intersection of SR 64, the corridor turns west and follows SR 64 for approximately three miles to its intersection with Dam Road. There, the corridor turns south and runs along section lines for approximately three miles, beginning with a width of 4,500 feet and narrowing to 3,000 feet, until it reaches University Parkway. At University Parkway, the corridor turns west and runs along the south side of the road to its intersection with Lorraine Road, in which area the corridor is at least 500 feet wide. At Lorraine Road, the corridor turns south along the road and is of varying width as it follows Lorraine Road to Dog Kennel Road and the proposed Bobwhite substation. The Consensus Corridor Selection Process In November 2007, after eight days of hearing, FPL, SMR, and several other parties jointly requested a continuance of the certification hearing because their informal discussions indicated the possibility for agreement on corridor modifications that would resolve a number of disputes. The continuance was granted and the certification hearing was continued until May 2008. In the interim, a number of parties reached agreement on a new corridor which they referred to as the Consensus Corridor. The areas of the Consensus Corridor that differed from the FPL Original Corridor were thoroughly studied and inspected by consultants and experts hired by FPL and SMR. FPL re-initiated its public outreach program to inform the public about the new Consensus Corridor. The Consensus Corridor is now the corridor preferred by FPL. The Route of the Consensus Corridor The Consensus Corridor is identical to the FPL Original Corridor from the Manatee Energy Center to SR 64. However, FPL and Pacific Land, Ltd, entered into an agreement wherein FPL agreed to locate the ROW “as close as reasonably practicable” to Pacific Land’s west property boundary line. The Consensus corridor follows SR 64 a shorter distance west than the FPL Original Corridor before it turns south, avoiding some of the frontage along Lake Manatee State Park. The Consensus Corridor is 500 feet wide as it turns south from SR 64 on property owned by Bradenton Motorsports, Inc., and continues south onto land owned by Taylor & Fulton, Inc. It then makes four 90-degree turns to form a “C” shape, or “notch,” to follow Taylor & Fulton’s eastern property boundary.3 When the Consensus corridor reaches Taylor & Fulton’s southern property boundary, it turns west and rejoins the FPL Original Corridor. Along Taylor & Fulton’s southern boundary, the corridor is located north of a drainage canal, and about 350 feet north of the Bridle Creek subdivision. In addition to this setback from Bridle Creek, Taylor & Fulton has agreed to preserve the existing tree line between them. Turning south from Taylor & Fulton’s property, the Consensus Corridor generally follows the FPL Original Corridor, but the Consensus Corridor is narrower, providing about 200 feet more separation from the residential developments of Panther Ridge and The Concession.4 Along Bourneside Boulevard, the Consensus Corridor is shifted west to align with the eastern edge of the existing road pavement,5 which avoids some wetlands crossed by the FPL Original Corridor and provides a greater setback from The Concession residential development. South of University Parkway, the Consensus Corridor departs substantially from the FPL Original Corridor to avoid the latter’s impacts to SMR’s residential developments. Rather than moving west all the way to Lorraine Road and following Lorraine Road south, the Consensus Corridor turns south almost immediately after reaching University Parkway, and meanders generally southward through the Heritage Ranch Conservation Easement (HRCE). The HRCE is a 1,972-acre tract of land owned by SMR, which is subject to a conservation easement acquired by Sarasota County. The Consensus corridor is 1,000 feet wide as it moves through the HRCE along an irregular line that generally follows existing field roads or fire lanes. The corridor exits the HRCE going west onto SMR-owned land, rejoins the FPL Original Corridor along Lorraine Road, and then runs south to the proposed Bobwhite substation. The Concession Corridor 45. The Concession Corridor (formerly SMR #1) is identical to the FPL Original Corridor from the Manatee Energy Center to SR 64. At the intersection of SR 64 and CR 675, The Concession Corridor continues to follow CR 675 to the intersection with SR 70. The corridor then extends southeast on SR 70 to Verna Road, which the corridor follows south to Verna Road’s intersection with Fruitville Road. The Concession Corridor then follows Fruitville Road west to Dog Kennel Road, then north on Dog Kennel to the proposed site of the Bobwhite substation. From SR 64 to the Bobwhite substation, the corridor is 500 feet wide. The Falkner Corridor The Falkner Corridor stays in existing FPL transmission line ROW all the way from the Manatee Energy Center to the proposed Bobwhite substation. From the Manatee Energy Center, the Falkner Corridor heads west on the FPL ROW for approximately five miles. It then turns south and follows the ROW for approximately twenty miles, where it turns eastward and then southeastward for about five miles, until it reaches the area of the proposed Bobwhite substation. The Falkner Corridor is 400-to-500 feet wide. Land Uses and Significant Natural Features 1. FPL Original Corridor Manatee Energy Center to SR 64 All three of the corridors proper for certification incorporate this segment from the Manatee Energy Center to SR The existing land uses in the area of the corridor are primarily agricultural. The future land uses in this area, as designated in the Manatee County Comprehensive Plan, are Major Public/Semi Public (P/SP-1), Agricultural/Rural (AG-R), and Major Recreation/Open Space (R-OS) The P/SP-1 land use category applies only to the Manatee Energy Center. The AG-R land use category designates areas with long-term agricultural or rural residential character. Potential uses in this category include farms, rural residential, small retail and office commercial, mining, low- intensity recreational facilities, and schools. The maximum gross residential density is one dwelling unit per five acres. The R-OS land use category applies to Lake Manatee State Park, and recognizes these existing recreation and permanent open space land uses. The ecological communities between the Manatee Energy Center and CR 675 include pine flatwoods, mixed oak-pine uplands, freshwater marshes, wet prairies, forested swamps, and small tributaries such as Gamble Creek, Tyre Creek, and Waterhole Creek. The vegetative habitats are dominated by agricultural crops. The tributaries are narrow and have existing road crossings. From CR 675 to SR 64, the FPL Original Corridor follows SR 675. The existing land uses on both sides of the road are primarily agricultural. The corridor crosses the Manatee River system, which includes Boggy Creek and Gilley Creek. There are scattered trees, including some large oak trees along portions of CR 675. SR 64 to University Parkway Lake Manatee State Park is on the north side of SR 64. On the south side are the DeSoto Speedway and Bradenton Motorsports Park, as well as a mix of other uses, including businesses, a nursery, a winery, and some residences. Between SR 64 and University Parkway, the existing land uses are primarily agricultural, except for the Panther Ridge and The Concession residential developments, which are just east of the FPL Original Corridor. The future land uses in this area, as designated in the Manatee County Comprehensive Plan, are AG-R, R-OS (described above), Urban Fringe (UF-3), and Estate Rural (ER). The UF-3 land use category applies to a half-mile strip on the south side of SR 64, west of Dam Road, is for low-density residential use, generally developed through the planned unit development concept, and residential support uses. The ER land use category is for clustered, low-density suburban, residential use with large tracts of open space for agricultural activities, low- intensity recreational use, environmental protection or other compatible open space uses. The maximum gross residential density is one dwelling unit per five acres. The ecological communities in this area include mixed oak-pine uplands, pine flatwoods, shrub and brush land, freshwater marshes, and forested swamps along tributaries of the Manatee River. Along SR 64, the vegetative habitats and waterbodies include scattered shrub and pasture. Lake Manatee State Park contains pine flatwoods and xeric pine communities, except close to SR 64, where a fire break is maintained. The FPL Original Corridor crosses the Braden River which is a Class I water. As the corridor approaches University Parkway, there are scattered uplands, several small marshes, and pasture land. Near The Concession development, there are four herbaceous wetlands along the eastern boundary of the corridor. c. University Parkway to the Proposed Bobwhite Substation The land in this area is largely undeveloped. Within the corridor, the land use is primarily agricultural. However, just north of the FPL Original Corridor is an SMR residential development under construction known as The Lake Club and a large-lot residential community to the west known as The Polo Club. Closer to the Bobwhite substation site, there are large- lot residential developments east of the corridor. University Parkway divides Manatee County and Sarasota County in this area. The small piece of the FPL Original Corridor that is north of University Parkway and in Manatee County is subject to AG-R (described above) and RES-1 future land use categories. RES-1 designates areas of low-density suburban residential environment, clustered low-density urban residential environment, and compatible agricultural facilities. The maximum gross residential density is one dwelling unit per acre. The balance of future land uses in this segment of the FPL Original Corridor is subject to the Sarasota County Comprehensive Plan, and its Rural land use category. The primary function of the Rural category is to preserve agricultural lands and rural character, and residential development is limited to a maximum density of one dwelling unit per five acres. However, if elected by the developers, these lands can be subject to the Sarasota 2050 Resource Management Area (RMA) Supplement to the Future Land Use Element. The Sarasota 2050 Plan creates several types of RMAs, which function as overlays that do not affect existing development rights of the underlying property owners. RMAs encourage the use of clustered development and the preservation of open space and rural character. The FPL Original Corridor crosses three types of RMAs: Greenway, Village/Open Space, and Rural Heritage/Estate. The Greenway RMA designates a network of riverine systems, floodplains, native habitats, storm surge areas and uplands as priority resources. Uses in Greenway RMAs are restricted to uses that are compatible with ecological functions and values. The Village/Open Space RMA provides for compact, mixed-use, pedestrian-friendly villages and hamlets within a system of large areas of permanent open space, designed to prevent urban sprawl. Villages have a maximum density within developed areas of five-to-six dwelling units per acre. The Rural Heritage/Estate RMA is intended to recognize and preserve the existing pattern of very low-density, large-lot estate developments, agriculture, and equestrian activities outside the urban service boundary. The vegetative communities and habitats along University Parkway to Lorraine Road are dominated on the north side of the road by developing lands, and on the south side of the road by the HRCE and portions of Gum Slough. As the corridor proceeds westward, there are also scattered shrub and brush land, pine flatwoods, and scattered marshes and forested systems. Along Lorraine Road, the vegetative communities and habitats include primarily shrub and brush land, various upland forested systems, some wetland forested systems, small marshes, and active mining east of Lorraine Road. Land Uses and Significant Natural Features – The Consensus Corridor a. Manatee Energy Center to SR 64 This segment of the Consensus Corridor is the same as the FPL Original Corridor and, therefore, has the same land uses and significant natural features as were previously described. b. SR 64 to University Parkway The Consensus Corridor is east of the FPL Original Corridor in the north half of this segment. There are large- acre agricultural land uses in this area, but the corridor is closer to residential development to the east. The future land use is AG-R (Agriculture/Rural), described previously. c. University Parkway to the Bobwhite Substation The Consensus Corridor meanders through the HRCE for most of this segment. The existing uses are cattle grazing, sod farming, and recreational hunting. The HRCE has a future land use designation as Greenway. The HRCE contains a portion of the Gum Slough swamp system as well as uplands of open pine flatwoods and improved pasture which serve as a buffer for the swamp system. Land Uses and Significant Natural Features – The Concession Corridor a. Manatee Energy Center to SR 64 This segment of The Concession Corridor is the same as the FPL Original Corridor and, therefore, has the same land uses and significant natural features as were previously described. b. State Road 64 to Fruitville Road The existing land uses in this area are a mix of large-lot residences and some agriculture. A large PUD, Panther Ridge, is just west of The Concession corridor. When The Concession Corridor turns south on Verna Road, it passes large wellfields owned by the City of Sarasota and through pastures and other agricultural uses on both sides of the road, with some residential development to the east. The future land uses in this area, as designated in the Manatee County Comprehensive Plan, are AG-R and R-OS, which were described above. The ecological communities in this area include pine flatwoods, shrub and brush lands, and freshwater marshes. Just south of SR 64, The Concession Corridor crosses Corbett Branch, which is a Class I tributary of the Manatee River. Along CR 675 and SR 70, are primarily developed lands or farmsteads. There are scattered trees and wetlands along SR 675. The corridor along SR 70 crosses a slough. Along Verna Road, there are no significant natural features. c. Fruitville Road to the Proposed Bobwhite Substation In this area of The Concession Corridor, there are some existing residential and agricultural uses, as well as vacant land that is proposed for residential development. Fruitville Road (and The Concession Corridor) runs just north of the large Gum Slough System. The future land uses in this area are subject to the Sarasota County Comprehensive Plan. The primary future land uses are Rural, which may be subject to the Sarasota 2050 RMA Supplement, as explained above; Major Government Uses (MGU), which applies to the existing city wellfield; and Greenway, which covers the Gum Slough system. There are also publicly owned lands south of Fruitville Road that are protected for environmental functions and values. The ecological communities in this area are pine flatwoods, oak and pine uplands, shrub and brush lands, freshwater marshes, wet prairies, and forested swamps. On the western end of Fruitville Road, there are scattered wetlands and tributaries across the roadway, including Cow Pen Slough and Gum Slough. Land Uses and Significant Natural Features – The Falkner Corridor Falkner did not present a detailed description of the existing and future land uses or the significant environmental features in the areas through which the Falkner Corridor passes. In the ROW itself, of course, the existing use is electrical transmission lines. Along the corridor, however, there are areas of existing and future residential development. The corridor also passes over the Manatee River and its floodplain. D. Transmission Line Design and Construction FPL will ultimately construct the BWM Line within a ROW more narrow than the approved corridor. The width of the ROW will range from 10 feet to 75 feet. Pursuant to Section 403.522(10), Florida Statutes, after all property interests in the ROW are acquired, the boundaries of the corridor will shrink to the width of the ROW. The proposed design for the BWM Line will be a single- pole un-guyed concrete structure, 65-to-100 feet above grade, with the phase conductors framed in a vertical or triangular configuration. Each of the BWM Line’s 3 phases is anticipated to utilize bundled 954-thousand circular mils, aluminum conductors (2 conductors per phase), with a steel reinforced alumoweld core. There will also be a smaller overhead ground wire to provide shielding and lightning protection for the conductors. The maximum current rating for the BWM Line will be 2,990 amperes. The span length between structures will vary between 250 feet and 700 feet, depending on site-specific ROW widths and other design considerations. Both pole height and span length will vary due to natural or man-made constraints such as wetlands, water bodies, property boundaries, existing utility poles, utility lines, and roadways. Shorter structures might be required in proximity to an airstrip, to comply with applicable clear zones, or to accommodate the wishes of underlying property owners. The transmission line poles can accommodate the placement of electric distribution lines or communication cables beneath the transmission line’s conductors, referred to as “underbuilding.” For poles shorter than 85 feet, however, it is difficult to underbuild. Use of shorter poles also requires a wider ROW to comply with the electric and magnetic fields (EMF) requirements established in Florida Administrative Code Chapter 62-814. Surveying the ROW to facilitate acquisition of the necessary property interests is a first step toward construction. Concurrently with surveying, FPL will work with the underlying landowners to determine the most appropriate boundaries of the ROW and the location of poles within the ROW. Another early task is to determine where access roads or structure pads are needed. After the ROW is established, the initial phase of construction involves clearing the ROW. Clearing the ROW will consist mainly of tree trimming in compliance with American National Standards Institute (ANSI) standards. Generally, trees that cannot be avoided and which exceed or are capable of exceeding 14 feet in height will have to be removed to ensure adequate clearance is maintained around the conductors, both vertically and horizontally. In wetlands, trees capable of exceeding 14 feet will be removed by hand. Lower wetland vegetation will not be cleared. After the ROW is cleared, any necessary access roads and structure pads will be constructed. To the greatest extent practicable, existing roads will be used. Improvements might be made to existing roads, depending on their condition. Where soil conditions will not support large construction and maintenance vehicles, usually in wet areas and areas with soft soil, FPL will probably construct new access roads and structure pads. Where new access roads are constructed, they will typically be 14 feet wide and at least six feet above seasonal high water. Structure pads will typically extend about 20 feet around the pole, but, on at least one side, must extend at least 30 feet to accommodate the outriggers on the construction and maintenance equipment. Access roads and structure pads will not be paved. They will have culverts installed beneath them, when needed, to maintain preconstruction water flows in the area. The next phase of construction involves the augering of holes, erection of poles, and backfilling of the holes. Poles are typically embedded 18-to-25 feet into the ground. The poles are then “framed,” which is the installation of the insulators and clamp hardware. If the pole is set at a location where the line turns a large angle, guy lines will be installed to compensate for the greater tension on the conductor. Then, the conductors and overhead ground wires are installed. The conductors are then tensioned to provide the proper design vertical clearances and “clipped in” to the insulator assemblies. The final stage of construction is ROW clean-up, smoothing of ruts, and placement of sod or seed as needed. During all stages of construction, FPL will maintain traffic on any adjacent county, state or federal roadways in compliance with Department of Transportation (DOT) regulations. Throughout construction, sedimentation management techniques (e.g., silt fences, turbidity screens, and hay bales), will be employed as necessary to minimize potential impacts on water quality from erosion and sedimentation. The entire construction process for the BWM Line will take 13-to-15 months. Conditions of Certification The construction, operation, and maintenance of the BWM Line in any of the corridors proper for certification must comply with the Conditions of Certification. The Conditions of Certification establish a review process through which the final right-of-way, access road, and transmission line structure locations will be reviewed by agencies with regulatory authority over the project. The parties agree that the Conditions of Certification attached as Appendix I to DEP Exhibit 8 are consistent with applicable non-procedural requirements of the state, regional, and local agencies that have regulatory jurisdiction over the BWM Line. FPL agrees to comply with the Conditions of Certification. Agency Review of Corridors Proper for Certification Local, regional, and state agencies with regulatory authority over the construction of the BWM Line reviewed the FPL Original Corridor application and each subsequent alternate corridor application filed in this proceeding and submitted to DEP a report on matters within the agency’s jurisdiction. DEP’s first Summary and Compilation of Agency Reports, dated April 27, 2007, addressed only the FPL Original Corridor. At that time, DEP reported that the FPL Original Corridor “can be certified so long as the conditions of certification are met.” The other commenting agencies recommended that the FPL Original Corridor be certified, subject to the conditions of certification. A revised Summary and Compilation of Agency reports was issued by DEP on September 7, 2007. It addressed the FPL Original Corridor and 12 alternate corridors. DEP stated that “any of the proposed corridors can be certified.” The other commenting agencies, except for Manatee County and Sarasota County, had no objection to certification of any of the proposed corridors. Manatee County recommended denial of four alternate corridors, including SMR #1, which is the same as The Concession Corridor. Sarasota County also expressed concerns about SMR #1. DEP’s most recent Addendum to Staff Analysis Report, dated May 5, 2008, compiled the updated reports of the reviewing agencies on the alternate corridors proper for certification, including the Consensus Corridor. Because the Falkner Corridor was rejected by FPL, Falkner did not submit supporting data for the corridor and the agencies did not review or comment on the Falkner Corridor. In the Addendum, Manatee County again recommended denial of The Concession Corridor. Comparison of Corridor Impacts The Effect of Paragraph 5 of the Settlement Agreement In the second half of the certification hearing, an issue arose regarding the credibility of the testimony of witnesses for 15 non-governmental parties. These parties entered into a Settlement Agreement on November 7, 2007, which contained the following condition in paragraph 5: The Parties agree that, through their pleadings and testimony, they shall urge the Administrative Law Judge to recommend, and the Siting Board to certify, the Consensus Corridor subject to the supplemental conditions of certification set forth below. FPL and the other signatories to the agreement offered testimony to show that they had not entered into the agreement until they were genuinely convinced that the Consensus Corridor was the best of the proposed corridors. They asserted, therefore, that the credibility of the testimony offered in support of the Consensus Corridor is not diminished by the fact that the parties had contractually obligated themselves to support the Consensus Corridor in their testimony. Paragraph 5 of the Settlement Agreement, however, also raises the question of whether witnesses for the signatories to the agreement felt free to express a subsequent change of opinion with respect to any aspect of the Consensus Corridor; a change of opinion which they reached either on their own or through cross-examination. The Administrative Law Judged asked several of the witnesses whether their testimony was serving their oaths to tell the truth or their contractual obligation to support the Consensus Corridor. All the witnesses claimed allegiance to their oaths to tell the truth. The credibility of the witnesses, based on their demeanor and other indices of veracity, was still discernable by the Administrative Law Judge, despite Paragraph 5 of the Settlement Agreement. Only one witness gave testimony that, in some respects, appeared to be based not on personal knowledge or genuine belief, but on the witness’ sense of contractual obligation to support the Consensus Corridor. Lack of Detailed Information for the Falkner Corridor Because the Falkner Corridor was rejected by FPL, Falkner did not submit detailed information in support of his corridor and the agencies did not review it. Therefore, Falkner had the burden to present in the certification hearing all of the information needed to fully evaluate the Falkner Corridor and to compare it to the corridors proper for certification. Falkner contends that his right to due process was violated because “FPL prevented the public and government agencies from fully considering the proposal to build the BWM Line in the existing FPL right-of-way.” The evidence offered by Falkner in support of his due process claim, however, amounts to nothing more than discussions between FPL and governmental parties about TSLA procedures and the effect of the PSC need determination. The governmental parties remained free to disagree with FPL and to take whatever related action they deemed appropriate. FPL had no power to “prevent” action by a governmental party. Section 403.526(4), Florida Statutes, provides that the failure of an agency to submit a report is not grounds to deny or condition certification. In several respects, Falkner failed to present the detailed information needed to fully evaluate the Falkner Corridor. For example, the potential environmental impacts associated with the Falkner Corridor (especially the impacts associated with crossing of the Manatee River) were described in less detail than was done in the case of the corridors proper for certification. The record evidence regarding the existing and future land uses adjacent to the Falkner Corridor is also inadequate to make detailed findings on that subject. The Certification Criteria Section 403.529(4), Florida Statutes, provides: In determining whether an application should be approved in whole, approved with modifications or conditions, or denied, the board, or secretary when applicable, shall consider whether, and the extent to which, the location of the transmission line corridor and the construction, operation, and maintenance of the transmission line will: Ensure electric power system reliability and integrity; Meet the electrical energy needs of the state in an orderly, economical, and timely fashion; Comply with applicable nonprocedural requirements of the agencies; Be consistent with the applicable provisions of local government comprehensive plans, if any; and Effect a reasonable balance between the need for the transmission line as a means or providing reliable, economically efficient electric energy, as determined by the commission, under s. 403.537, and the impact upon the public and the environment resulting from the location of the transmission corridor and the construction, operation, and maintenance of the transmission lines. The three corridors proper for certification and the Falkner Corridor will be compared below with respect to each certification criterion. Ensure Electric Power System Reliability and Integrity The PSC determined that locating the BWM Line in a geographically separate ROW from the existing common ROW would enhance the electric system reliability benefits of the new line. The Administrative Law Judge ruled that this determination by the PSC did not preclude Falkner or any other party from presenting evidence regarding electric system reliability. The Florida Reliability Coordinating Council (FRCC) is a component of the North American Electric Reliability Corporation (NERC). FRCC’s primary purpose is to ensure electric system reliability in Florida. FRCC has adopted NERC’s planning standards, which are mandatory and enforced by the Federal Energy Regulatory Commission. All four proposed corridors would be equally able to achieve the reliability standards established by NERC for “single contingency” events, those that result from the loss of a single element such as a generator or a transmission circuit. The reliability issue in dispute in this proceeding relates to the potential for the loss of all circuits on a common ROW, referred to as a “corridor outage.” NERC planning standard TPL-004 requires electric utilities to plan for and mitigate the system performance problems that could occur during a corridor outage. The key to maintaining adequate system performance during a corridor outage is reinforcement elsewhere in the transmission system. FPL’s records from 1985 to date show that FPL has experienced eight corridor outages in that period. Corridor outages have been caused by, among other things, fires, airplanes contacting the lines, hurricanes, tornados, and lightning. These are all events that could occur in the common ROW that is the Falkner Corridor. Vince Ordax, FPL’s former supervisor of local area transmission planning, testified that a corridor outage with the BWM Line in the Falkner Corridor could possibly trigger cascading, or uncontrollable, outages. A simulation performed under the direction of Carlos Candelaria, an expert in transmission planning, also showed that a cascading outage could occur, resulting in a blackout lasting hours and affecting 500,000 customers. Such a blackout would jeopardize public health, safety and welfare. FPL admits, and it is understood in the electric utility industry, that the probability of a corridor outage is very low. Falkner agrees that “if the BWM Line is built in the existing right-of-way, and if there is a corridor outage, a cascading outage might result causing customer service interruption of up to 4-6 hours.” Falkner further agrees that, “If the BWM Line is built in a geographically separate corridor . . . then a cascading outage is unlikely and customer service interruptions should be resolved in minutes, not hours.” Falkner’s position is that this difference in system reliability is not significant and does not prevent an ultimate finding that the Falkner Corridor would have the least adverse impact when all the certification criteria are considered. The preponderance of the evidence presented shows that geographic separation of the BWM line from the existing ROW would improve system reliability with respect to system performance in the event of a corridor outage. Placement of the BWM Line in the Falkner Corridor would reduce system reliability in the event of a corridor outage. This enhancement of system reliability is a part of the need for the BWM Line as determined by the PSC. There is an airstrip that is in active use that is perpendicular to Fruitville Road within The Concession Corridor. The proximity of an airstrip to the BWM Line poses a risk of a plane striking the line. The Consensus and FPL Original Corridors are the same length, about 26 miles. The Concession Corridor is 3.3 miles longer and the Falkner Corridor is 2.5 miles longer. A shorter line reduces line losses and exposure to reliability risks, such as lightning or falling trees. However, the differences in the lengths of the four corridors under review are not significant with regard to system reliability. Electric system integrity addresses the adequacy of design and strength of the transmission line to withstand various events. The BWM Line will be constructed, operated, and maintained in compliance with all applicable design codes, including the National Electrical Safety Code, DEP’s regulations on electric and magnetic fields (Florida Administrative Code Chapter 62-814), the Florida DOT Utility Accommodation Manual, Manatee County and Sarasota County noise ordinances, and the standards of the American Society of Civil Engineers, the Institute of Electronic and Electrical Engineers, American Society of Testing Materials, NERC standards, as well as FPL’s own internal standards. If the BWM Line were constructed in the Falkner Corridor, several structures would have to be built in the open water and floodplain of the Manatee River. Maintenance of these structures would be more difficult and the replacement of poles and some other major components would require barges or helicopters. The FPL Original Corridor, the Consensus Corridor, and The Concession Corridor are on nearly equal footing with regard to this particular certification criterion, with the Concession Corridor slightly less attractive. The Falkner Corridor has the greatest potential for adverse impact with regard to this criterion. Meet the Electrical Energy Needs of the State in an Orderly and Timely Fashion In its need determination for the BWM Line, the PSC determined that the line must be in service by December 2011 to preserve electric system reliability and integrity. The design, construction, and operation of the BWM Line can be accomplished in an orderly and timely fashion and in compliance with the conditions of certification in any of the corridors proper for certification. FPL contends that there was an insufficient showing that the BWM Line could be constructed, operated and maintained in the Falkner Corridor in compliance with the conditions of certification and, therefore, an insufficient showing that a new transmission line in the Falkner Corridor could meet the area’s electric energy needs in an orderly and timely fashion. FPL’s position is based in part on its belief that it would be difficult and perhaps impossible to obtain agency approvals for the wetland impacts associated with the crossing of the Manatee River in the Falkner Corridor. Although the record evidence indicates that a transmission line in the Falkner Corridor would have wetland impacts associated with its crossing of the Manatee River, the evidence is insufficient to demonstrate that a permit could not be obtained. Some questions remain about whether the BWM Line could physically fit within the existing common ROW in the area south of SR 70 where a Peace River Electric Cooperative (PRECO) transmission line, called the Crawley tap, is located within it or in locations requiring the BWM Line to turn corners where guying would be needed. Within the next 10 or 15 years, FPL and PRECO plan to place four new distribution substations east of Interstate 75 in Manatee County and Sarasota County to serve future growth. Placing the BWM Line in a corridor east of the existing common ROW would more efficiently integrate these future distribution substations than placing the transmission line in the Falkner Corridor. Placement of the BWM Line in one of the corridors proper for certification would facilitate the building of an integrated system that could be efficiently expanded in the future as this area continues to develop. The Falkner Corridor, because it is on the western edge of the service area, would be less able to provide these benefits. The Concession asserts that its corridor has the unique advantage of passing FPL property that was purchased many years ago for a future distribution substation, referred to as the Oakford site. However, because of the uncertainties associated with whether and when the Oakford site will ultimately be used, how other planned substations will be integrated, and their costs, the proximity of the Oakford site to the Concession Corridor cannot be assigned much weight at this time. The FPL Original Corridor, the Consensus Corridor, and The Concession Corridor are all on essentially equal footing with regard to this particular certification criterion. The Falkner Corridor has some potential adverse impact with regard to this criterion. Comply with Applicable Nonprocedural Requirements of the Agencies The construction, operation and maintenance of the BWM Line on any of the corridors proper for certification, subject to the conditions of certification proposed by the DEP, will comply with the applicable nonprocedural requirements of agencies. Described earlier, but also relevant to this particular certification criterion, is FPL’s contention that it would be difficult and perhaps impossible to obtain agency approvals for the wetland impacts associated with the transmission line crossing of the Manatee River in the Falkner Corridor. FPL suggests that the availability of the alternative river-crossing along CR 675 in the corridors proper for certification would pose a problem in demonstrating that a transmission line in the Falkner Corridor avoided or minimized wetland impacts. However, the Falkner Corridor would only be certified by the Siting Board if it determined that the Falkner Corridor had the least adverse impacts regarding the criteria in Section 403.529(4), Florida Statutes. Such a determination made in this integrated certification proceeding would have to be considered in the wetland permitting process. As stated above, the record evidence is insufficient to find that the Falkner Corridor could not be approved due to its wetland impacts. Falkner did not show, and it was not conceded by FPL, that the BWM Line could be constructed in the Falkner Corridor in compliance with the EMF standards. The FPL Original Corridor, the Consensus Corridor, and The Concession Corridor are all on an equal footing with regard to this particular certification criterion. The Falkner Corridor has more potential adverse impact with regard to this criterion. Consistency with Applicable Local Government Comprehensive Plans The Manatee County Comprehensive Plan has no provisions specifically addressing transmission lines. Policy GS 2.4 of the Sarasota County Comprehensive Plan discourages the crossing of Greenway RMAs by utilities, but allows a utility crossing when it shown to be necessary to ensure the health, safety and welfare of the citizenry. A utility crossing must be designed to have minimal impacts on the environment. The Consensus Corridor crosses a Greenway RMA in Sarasota County within the HRCE. Sarasota County has authorized placement of the BWM Line across the HRCE if the Consensus Corridor is certified.6 In the Sarasota County Comprehensive Plan, Future Land Use Objective VOS 5 and Policy VOS 5.2 require protection of the “open vistas” and “integrity of the rural character” of Fruitville and Verna Roads. Because transmission lines are commonly placed in rural settings, FPL asserts that a transmission line is consistent with rural character. The comments of the public show this notion is not generally accepted. Although it is undisputed that transmission lines are commonly placed in rural areas, there appears to be almost unanimity in the belief that a transmission line reduces the quality of a rural vista. Neither Manatee County nor Sarasota County asserted in this proceeding that any of the four proposed corridors is inconsistent with the applicable provisions of its comprehensive plan. However, the TLSA requires a consideration of “the extent to which” the proposed corridors are consistent with local government comprehensive plans. Because Sarasota County has recognized the special character of the Verna Road/Fruitville Road area and adopted policies that seek to preserve its open vistas and rural character, The Concession Corridor along Verna Road and Fruitville Road presents a “negative” with respective to this criterion. The Consensus Corridor also presents a consistency issue under the Sarasota County Comprehensive Plan because the corridor crosses through the HRCE. However, due to the mitigation proposed as part of the corridor proposal (discussed in the next section), there is a net positive furtherance of the relevant comprehensive plan goals, objectives, and policies regarding environmental protection, generally, and the HCRE, specifically. The four proposed corridors are not far apart with respect to this particular certification criterion, but, as explained above, there is an advantage with The Consensus Corridor and a disadvantage with The Concession Corridor. Effecting a Reasonable Balance Between the Need for the Transmission Line and the Impact Upon the Public and the Environment Proximity to Residences There is no route between the Manatee Energy Center and the proposed Bobwhite substation that would make the BWM Line unseen from residences. Of the corridors proper for certification, the Consensus Corridor has the fewest homes within 600 feet and The Concession Corridor has the most. The Consensus Corridor has 40 existing homes within 600 feet, the FPL Original Corridor has 54, and The Concession Corridor has 189. The record does not show how many existing homes or residential lots are within 600 feet of the Falkner Corridor, but the Falkner Corridor passes through or by residential developments and urban areas. Taylor & Fulton/the Hunsaders/Bridle Creek The FPL Original Corridor, south from SR 64, begins at Dam Road and travels south through a large tract of agricultural land owned by Taylor & Fulton. Manatee County plans to extend Dam Road north from University Parkway to SR 64, and the FPL Original Corridor would be aligned with Dam Road through the Taylor & Fulton property. Collocation with Dam Road, compatibility with the existing agricultural uses, and avoidance of the residential land uses to the east and west were some of the reasons given by FPL for selecting this segment of the corridor as part of the FPL Original Corridor. The Consensus Corridor in this segment is derived from an agreement between FPL and Taylor & Fulton to have the BWM Line follow Taylor & Fulton’s eastern property boundary. Jay Taylor testified that this location would cause less impact to the future development of the Taylor & Fulton property. In order to follow Taylor & Fulton’s eastern property boundary, it is necessary to construct the BWM Line in a “C”- shaped notch. The notch adds about one mile of transmission line, compared to a straight line. FPL asserts that such notches are not unusual and FPL has created notches in other areas of the State to follow property boundaries or to avoid wetlands. However, the only examples presented by FPL were notches with much longer sides. The notch in the Consensus Corridor creates a tight “C” shape, with the sides close to each other. From several vantage points around the notch, a viewer would see two, three, or even four transmission lines. There are technical solutions for transmission lines that turn sharp angles, so the tight turns in the proposed notch can be engineered and built. The problem created by the proposed notch in the Consensus Corridor is not an engineering issue, but a problem of extreme visual impact on adjacent properties. The complaints and concerns expressed by many persons and parties in this proceeding were over the prospect of a single linear “eyesore.” The notch in the Consensus Corridor, however, would make it appear that there were three or four separate transmission lines built close together and running in different directions. This dramatic difference undermines attempts to describe the Consensus Corridor as more favorable than the FPL Original Corridor in this segment. The Hunsaders own property that would be surrounded on three sides by the BWM Line in the notch of the Consensus Corridor. In this area, the Hunsaders host the annual Hunsader festival, a rural community festival that attracts thousands of people. Collocation with existing or planned roads is an important consideration in transmission line siting. The FPL Original Corridor south of SR 64 is collocated with the future Dam Road extension. The Consensus Corridor would provide an opportunity to collocate with existing farm roads on the Taylor & Fulton property, but collocation with Dam Road is the better of these alternatives. Although Taylor & Fulton claims that the Consensus Corridor would cause significantly adverse impact to its property, the evidence offered in support of this claim was not persuasive. Agricultural uses are relatively unaffected by a transmission line. Unlike SMR, Taylor & Fulton has no specific future development plans for its property. Its concern regarding the impacts of the BWM Line on future development is speculative. The Dam Road extension (four-lanes) will divide the Taylor & Fulton lands into two distinct areas, east and west of the road. The BWM Line would run along one side of Dam Road. It will be Dam Road, not the BWM line, that will be the primary feature that Taylor & Fulton will have to incorporate into its future development plans. Moreover, the potential adverse impacts to Taylor & Fulton’s future development interests must be considered in conjunction with the fact that Dam Road and the BWM Line are both major public infrastructure projects that will provide substantial future benefits to Taylor & Fulton and the other developers in that area. FPL and other parties emphasized in this proceeding that when a transmission line is constructed in rural areas in advance of residential development, there are many options and techniques available to a developer to integrate the transmission line into future development plans in order to minimize its visual impact. In the future development of Taylor & Fulton’s agricultural lands, Taylor & Fulton will have these same development options and techniques. The difference between the three-sided notch and a simple line defies simple comparisons, such as the numbers of current residents in the vicinity of the Consensus Corridor versus the FPL Original Corridor in this segment. In order to assuage the concerns of the residents of the Bridle Creek subdivision on the south side of the Consensus Corridor where it runs back to the west to join the FPL Original Corridor alignment, Taylor & Fulton agreed to have the BWM Line located on the north side of a drainage canal and a line of trees so that the BWM Line would be screened from Bridle Creek. Taylor & Fulton would not remove the trees in this area if the BWM Line is constructed within the Consensus Corridor. FPL has agreed to the following condition, to be added to the Conditions of Certification as No. XVIII(F), if the Consensus Corridor is certified: To the extent feasible, and upon request by the Bridle Creek Homeowners Association (BCHOA), FPL shall consult with Taylor & Fulton, Inc. and BCHOA in the design of the transmission line to: 1) keep the pole heights along the northern BCHOA property boundary to the minimum height that is practicable, consistent with the desires of Taylor & Fulton, and in compliance with the requirements of the National Electrical Safety Code and good engineering practices; and 2) work collaboratively to locate the poles in such a way as to accommodate the BCHOA to the extent practicable, consistent with the wishes of Taylor & Fulton, and in compliance with the requirements of the National Electrical Safety Code and good engineering practices. The Concession’s Entrance The Concession’s main concern is the impact of the BWM Line on its entrance. An attractive entrance is an important aspect of a residential development. The Concession believes the BWM Line in the FPL Original Corridor and the Consensus Corridor would substantially diminish the attractiveness of its entrance and harm the marketability of lots and homes within The Concession. Although The Concession did not join in the Settlement Agreement that resulted in the Consensus Corridor, the Consensus Corridor was designed to reduce the potential impacts of the BWM Line on The Concession’s entrance and property. FPL has agreed to locate the BWM Line along the west side of four-lane Bourneside Boulevard, the opposite side of Bourneside Boulevard from The Concession’s entrance. The transmission line would not cross over The Concession’s entrance road. In this area, the BWM Line would be 450 feet from The Concession golf course and 832 feet from the nearest residential lot. The Concession has opportunities to reduce the visual impact of the line with landscaping. The Concession’s entrance is not currently unblemished. A 250-foot telecommunications tower is located on SMR’s property several hundred feet from The Concession entrance. The tower was constructed before The Concession purchased its property, and the tower operator has a lease which allows the tower to remain there for many years. The telecommunications tower affects the siting of the BWM Line in this area. Telecommunications towers must be separated from high voltage power lines by a distance equal to the tower’s height. Therefore, the BWM Line must be located at least 250 feet from the tower. The Concession presented no direct evidence that the prospect of the BWM line near the entrance to The Concession residential development has harmed lot or home sales. The presence of the telecommunications tower was not shown to have affected sales. FPL has agreed to the following condition of certification, to be added to the Conditions of Certification contained in Exhibit DEP-8, as No. XVIII(D): In the area of the planned Dam Road/Bourneside Boulevard extension (“Extension”), south of SR 64 and north of University Parkway and connecting with SR 70, FPL shall coordinate to the extent practicable with Manatee County Transportation Department and the underlying property owners regarding the location of the ROW for the Extension and the ROW for the BWM Line. If either Manatee County or the property owner(s) decline to participate in the coordination effort, FPL shall coordinate with the cooperating entity. FPL has agreed to the following condition of certification, to be added to the Conditions of Certification contained in Exhibit DEP-8, as No. XVIII(E): During design of the BWM Line, FPL shall locate poles, to the extent practicable and in compliance with the requirements of the National Electrical Safety Code and good engineering practices, to maximize the space between a pole and the primary entrance of a major residential subdivision, using typical structures, and within the ROW alignment. FPL has agreed to the following condition of certification, to be added to the Conditions of Certification contained in Exhibit DEP-8 as No. XXVII(B): To the extent practicable and consistent with safe operation and ongoing maintenance practices for the BWM Line, and in compliance with the requirements of Section 163.3209, F.S. (2007) and FPL’s Transmission Vegetation Management Procedures [which have been filed with NERC and are mandatory], after construction of the BWM Line is complete, FPL shall allow underlying property owners along the BWM Line ROW to plant vegetation within the ROW. Vegetation planted within the ROW shall not have a mature height of more than 14 ft from natural ground grade and must maintain at least 75 ft of clear space around the base of the structure and must not be located so as to impede access to the BWM Line for routine and emergency maintenance. Plans for vegetation planting along the BWM Line ROW shall be reviewed and approved by FPL to ensure compatibility with the access, operation and maintenance of the facility; if compatible, the planting must be permitted. These three conditions of certification would provide opportunities to reduce the visual impact of the BWM Line in the Consensus Corridor on The Concession’s entrance. The Concession proposes a condition of certification that would require the BWM Line to be constructed several hundred feet west of Bourneside Boulevard, on SMR property. However, this would create substantial interference with SMR’s Lake Club development, part of an approved Development of Regional Impact. The adverse impacts to the Lake Club would be disproportionately greater than the adverse impacts to The Concession’s entrance caused by the Consensus Corridor. University Parkway FPL and SMR have agreed to work together on the design of the BWM Line, including ROW location, pole height, and framing configuration, in the areas of University Parkway and Bourneside Boulevard to minimize the visibility of the poles. With respect to the area south of University Parkway, the Consensus Corridor has fewer impacts on existing and future residences than the FPL Original Corridor because the Consensus Corridor is more distant from residences. It avoids crossing lands designated for future Village Land Use on the Sarasota 2050 Plan and as RES-1 on the Manatee Future Land Use Map. CR 675, Verna Road, and Fruitville Road The Concession Corridor is close to and would adversely impact more existing homes and approved future residential lots than the FPL Original Corridor and Consensus Corridor. CR 675, Verna Road, and Fruitville Road have narrow rights-of-way, with homes closer to the roads, and less opportunity for landscaped screening. The Falkner Corridor The number and proximity of existing and future homes along the Falkner Corridor was not shown. There already are multiple transmission lines in the Falkner Corridor, so for many persons living near the corridor, the incremental increase in the visual impact of adding another transmission line in the corridor should be relatively small. Nevertheless, the overall impact of the Falkner Corridor in this respect is unknown. Electric and Magnetic Fields Some members of the public expressed concern at the public hearings and through letters submitted to the Administrative Law Judge about the potential for health effects from electric and magnetic fields (EMF). However, EMF standards have already been established for the protection of human health and safety and would apply to a transmission line constructed in any corridor certified by the Siting Board. Neither the Administrative Law Judge nor the Siting Board has authority in this certification proceeding to determine the appropriateness of any EMF standard. FPL provided reasonable assurances that the BWM Line, if built within any of the corridors proper for certification, will comply with the EMF standards. Falkner did not show, and it was not conceded by FPL, that the BWM Line could be constructed in the Falkner Corridor in compliance with the EMF standards. Environmental Impacts No matter what corridor is certified, FPL has agreed to follow a number of procedures to avoid and minimize the impacts to wetlands. For example, wetlands will be spanned wherever possible so poles or pads are not placed in wetlands. The transmission line will follow disturbed areas when possible. FPL has agreed to use restrictive clearing practices in forested wetlands, removing only trees taller than 14 feet and leaving the understory vegetation in place. Where fill is required, FPL will install culverts to maintain water movement. FPL will appropriately mitigate for wetland impacts that cannot be avoided. The FPL Original Corridor and Consensus Corridor are wide in some areas for the purpose of providing flexibility to avoid natural vegetated communities and waterbodies to the greatest degree possible. The FPL Original Corridor and Consensus Corridor can be constructed without significant disturbance to wetlands. The Concession Corridor is narrower, but generally follows areas that are already disturbed and can also be constructed without significant disturbance to wetlands. Based on a simple calculation of total wetlands that are crossed by the corridors, The Concession contends that it would have the least environmental impact. That is a simplistic analysis that fails to account for the fact that, in any of the corridors proper for certification, FPL will probably be able to avoid significant impacts to the wetlands. All of the corridors proper for certification cross the Manatee River and Gilley Creek on existing bridge crossings without any poles needing to be placed in open water or wetlands. These crossings would be accomplished by spanning over the water, upland-to-upland. The BWM Line in the three corridors proper for certification would be collocated with CR 675 at the Edward Chance Preserve, adjacent to the Preserve’s parking lot. The pristine, natural areas of the preserve would not be disturbed. For most of the Falkner Corridor, a new transmission line in the existing ROW would appear to have no wetland impacts, but the Falkner Corridor crosses the Manatee River at a much wider point than the other three corridors. Building the BWM Line in the Falkner Corridor would require placing at least four structures within the Manatee River, and 7-to-8 structures in the adjacent floodplain. Four miles south of SR 64, the Consensus Corridor and FPL Original Corridor cross the Braden River. The river is narrow within these corridors and can be spanned. The Concession Corridor and Falkner Corridor do not cross the Braden River. The Concession Corridor crosses Gum Slough and Cow Pen Slough on Fruitville Road, and Wolf Slough on CR 675 south of SR 64. The other proposed corridors do not cross these sloughs. However, no significant impacts to these wetlands are expected to occur if the BWM Line is constructed in The Concession Corridor. The construction, operation, and maintenance of the BWM Line in any of the corridors proper for certification is not expected to adversely impact any listed species or their habitats. There are no known listed plant species within the proposed corridors. However, there are conditions of certification which require FPL to survey for and protect any listed plant species found after certification of the BWM Line. Much of the wildlife habitat within the proposed corridors has been disturbed by roads, farming operations, and other man-induced impacts. No listed wildlife species are known to use the lands within the proposed corridors. FPL is required by the conditions of certification to protect any listed species that are found after certification of the BWM Line. The significant wildlife habitats (for non-listed species) in the corridors proper for certification are either avoided or, in the case of the Consensus Corridor’s location in the HRCE, the impacts are mitigated by measures to protect more wildlife habitat. There are some large live oak trees along CR 675. FPL can avoid or minimize impacts to those trees. In addition, FPL has agreed to the following additional condition of certification to be added as Condition No. XVIII(G) to the Conditions of Certification: When establishing the ROW location and constructing the transmission line, the Licensee shall minimize impacts to pre- existing natural features and minimize tree removal and trimming of vegetation, to the extent feasible and in compliance with Section 163.3209, Fla. Stat. (2007), which incorporates by reference National Electrical Reliability Corporation (NERC) standard FAC-003-1, American National Standards Institute (ANSI) standards A300 (Part I)-2001 and Z133.1-2000, and NESC standards adopted by the Florida Public Service Commission. Heritage Ranch Conservation Easement (HRCE) and Mitigation The Consensus Corridor is the only corridor that goes through the HRCE. The BWM Line would involve 18-to-28 acres of transmission line ROW in the 1,972-acre HRCE, depending on pole height and EMF-related ROW width requirements. The Consensus Corridor is near the western edge of the HRCE, which is primarily improved pasture and pine flatwoods, and follows jeep trails and fire breaks for much of its length. No unique or significant wildlife habitat exists in the corridor. No wetlands or important environmental features of the HRCE would have to be disturbed. The environmental functions of the HRCE would not be impaired. Although the HRCE is in a conservation land use designation, the portion of the HRCE within the Consensus Corridor is not environmentally sensitive, but serves as a buffer to the environmentally sensitive Gum Slough system. Sarasota County, the holder of the HRCE conservation easement, has approved the construction, operation and maintenance of the BWM Line within the HRCE in the Consensus Corridor. SMR has agreed to add 140 acres to the HRCE if the Consensus Corridor is certified. These 140 acres include portions of Gum Slough and large isolated wetlands. Protection of these additional lands would provide wildlife habitat and water quality benefits. SMR would also protect 470 acres of additional lands contiguous to the HRCE with restrictive covenants. The 470 acres include wetland systems, such as Cow Pen Slough, which would be protected from future development. The restrictive covenants require SMR to ensure that these wetlands are maintained in as good an ecological condition and functionality as currently exists, or better. The restrictive covenants would aid in the protection and preservation of the natural drainage pattern in the area, and would provide a benefit to the Gum Slough system for wildlife habitat and water quality. Summary of Environmental Impacts At this level of analysis, it is impossible to predict the unavoidable environmental wetland impacts that would be associated with each of the corridors proper for certification. As required by the Conditions of Certification, the construction of the BWM Line in any certified corridor must comply with the wetland regulatory standards applicable to such projects. The three corridors proper for certification have some potential for environmental impacts, but for all of these corridors, the environmental impacts should be relatively minor. However, the Consensus Corridor is the best of the three proposals because it presents an opportunity for a net environmental benefit with SMR’s offer to protect 600 more acres of sensitive lands. The Falkner Corridor has the greatest potential for adverse environmental impacts because of the need to place structures in the Manatee River and its floodplain. Costs The FPL Original Corridor is estimated to cost about $25.5 million, the most of the three corridors proper for certification. The Consensus Corridor is estimated to cost $3.3 million less, primarily due to the agreements with Taylor & Fulton and SMR regarding ROW acquisition. The Concession Corridor is estimated to cost $500,000 less than the Consensus Corridor. The difference between the estimated costs for the Consensus Corridor and The Concession Corridor, $500,000, represents a small percentage of the total project costs, especially in light of the margin of error in these cost estimates. Even a cost differential of $3 million, at this early stage of planning and cost analysis, is not a substantial difference. The estimated cost of placing the BWM Line within the existing common ROW in the Falkner Corridor was not clearly established in the record. Falkner used 2006-2007 cost estimates to argue that the Falkner Corridor would cost millions less than the other corridors. FPL states that the FPL Corridor would require that transmission lines be looped in and out from the existing common ROW to FPL’s future distribution substations, adding over $7 million of costs when compared to a geographically separate corridor. However, there is insufficient evidence in the record regarding the costs associated with future substations and connecting transmission lines to meaningfully compare the four corridors with regard to these and other future system components. The preponderance of the credible evidence shows that the BWM Line in the Falkner Corridor would probably cost the least to build. However, the record evidence is not sufficient to state how much less the Falkner Corridor would cost. Other Issues The Concession Corridor and Falkner Corridor avoid impacts to Lake Manatee State Park. The potential impacts of the FPL Corridor and Consensus Corridor on the park would be small, but the Consensus Corridor would have less impact because it avoids the Park’s entrance and reduces the BWM Line’s length along the park boundary on SR 64 by about one mile. Within the park, the BWM Line would likely be screened from view by trees in the park. There should be no adverse ecological impacts to the park. If the BWM Line is located in the Consensus Corridor or FPL Original Corridor, FPL would first try to place the line in the road ROW. If that were not possible, FPL would locate the line just inside the Park’s fence in an area already cleared. With respect to traffic interruption during construction of the BWM Line, the Consensus Corridor and FPL Original Corridor would have equally small impact. Construction of the BWM Line in The Concession Corridor along CR 675 (south of SR 64), SR 70, Verna Road, and Fruitville Road would likely require intermittent closure of at least one lane of traffic for the 2-to-3 month construction period. Summary Regarding The Balancing of Need and Impact All three corridors proper for certification would cause adverse impacts to the public which can be avoided without jeopardizing the objectives of the TLSA and without losing the benefits associated with integrating the BWM Line with existing and future land uses. However, the TLSA clearly contemplates that a proposed corridor can cause adverse impacts to the public and the environment, but still meet the criteria for certification. The three corridors proper for certification are found to meet this criterion because none would cause adverse impacts to the public and the environment that are so great that they outweigh the need or benefits of constructing the BWM Line. The evidence submitted for the Falkner Corridor, however, was insufficient to make a finding regarding this particular criterion. I. The Corridor that would have the Least Adverse Impact Section 403.529(5)(b), Florida Statutes, provides that the Siting Board shall deny certification if it determines that a rejected corridor has the least adverse impact with regard to the certification criteria. The Falkner Corridor has more potential for adverse impact regarding some of the certification criteria than the corridors proper for certification. For some certification criteria, insufficient evidence was presented regarding the Falkner Corridor to make a meaningful comparison with the corridors proper for certification. Therefore, the record evidence does not support a finding that the Falkner Corridor has the least adverse impact regarding the criteria in Section 403.529(4), Florida Statutes. If two or more corridors proper for certification meet the statutory criteria, certification must be granted to the corridor that has the least adverse impact regarding the criteria in Section 403.529(4) Florida Statutes, including costs. § 403.529(5)(c), Fla. Stat. Because the FPL Original Corridor, the Consensus Corridor, and The Concession Corridor meet the certification criteria, it must be determined which of them would have the least adverse impact. During the certification hearing, the parties promoted one corridor over another based on the advantages and disadvantages associated with their various segments. However, the preponderance of the evidence demonstrates that the best combination of corridor segments, creating a corridor that has the least adverse impact and effects the best balance between the need for the BWM Line and impacts upon the public and the environment, is not one of the corridors proper for certification. The Consensus Corridor does not effect the best balance between the need for the transmission line and the impact on the public because it includes substantial adverse impacts on the public in the area of the notch on Taylor & Fulton’s property that are unnecessary and avoidable. The avoidance of these impacts, the opportunity to collocate the BWM Line with the Dam Road extension, and several other advantages described by FPL in its corridor application and in the evidence presented by FPL during the first part of the certification hearing, make the FPL Original Corridor preferable in this area of Manatee County. The best combination of corridor segments is the FPL Original Corridor from the Manatee Energy Center to the point where it is perpendicular to Taylor & Fulton’s southern property boundary, and then continuing south in the Consensus Corridor to the proposed Bobwhite substation.
Conclusions For Applicant, Florida Power & Light Company: Carolyn S. Raepple, Esquire Virginia Daily, Esquire Hopping, Green & Sams, P.A. Post Office Box 6526 Tallahassee, Florida 32314-6526 For the Department of Environmental Protection: Toni Sturtevant, Esquire Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32333-3000 For Manatee County: Sarah A. Schenk, Esquire Assistant County Attorney Manatee County Attorney’s Office 1112 Manatee Avenue West, Suite 969 Post Office Box 1000 Bradenton, Florida 34206-1000 For Sarasota County: Stephen E. DeMarsh, Esquire David Pearce, Esquire Office of the County Attorney 1660 Ringling Boulevard, Second Floor Sarasota, Florida 34236 For the Southwest Florida Water Management District: Martha Moore, Esquire Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34604-6899 LLC: For the Department of Transportation Leon M. Biegalski, Esquire Kimberly Menchion, Esquire Assistant General Counsel 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399 For Schroeder-Manatee Ranch, Inc., and Lake Club Investors, W. Douglas Hall, Esquire H. Ray Allen, II, Esquire Dianne Triplett, Esquire Carlton Fields, P.A. Post Office Drawer 190 Tallahassee, Florida 32302 For Myakka Ranch Holdings, LLC; FC, LLC; Sarasota One, LLC; John Cannon Homes - Eastmoor, LLC; Schwartz Farms, Inc.; Michael and Jo Anne Schwartz: Kevin S. Hennessy, Esquire R. David Jackson, Esquire Lewis, Longman & Walker, P.A. 1001 Third Avenue West, Suite 670 Bradenton, Florida 34205 For Gum Slough Preservation Foundation; Kittie L. Chapman; East County Homeowners Organization, Inc.; and Hi Hat Ranch, LLP: Robert S. Wright, Esquire Young van Assenderp, P.A. 225 South Adams Street, Suite 200 Tallahassee, Florida 32301 For ManaSota-88, Inc.: Barbara G. Hines, Esquire 117 81st Street Holmes Beach, Florida 34217 For John Falkner: Roy W. Cohn, Esquire 2406 Watrous Avenue Tampa, Florida 33629 For Pacific Land, Ltd.: Maureen M. Daughton, Esquire Broad & Cassel 215 S. Monroe Street, Suite 400 Tallahassee, Florida 32301 For The Concession Land Development, LLC; and The Concession Golf Club, LLC: Jon C. Moyle, Jr., Esquire Anchors Smith Grimsley The Perkins House 118 North Gadsden Street Tallahassee, Florida 32301 For Michael, David, and Doanld Hunsader: Paul F. Grondahl, Esquire Mackey Law Group, P.A. 1402 Third Avenue West Bradenton, Florida 34206 For Bridle Creek Home Owners Association, Inc.: Keith Colabella, pro se . c/o Miller Management 2848 Proctor Road Sarasota, Florida 34231 For Taylor & Fulton, Inc.: Joel E. Roberts, Esquire V. Nicholas Dancaescu Gray Robinson, P.A. 301 East Pine Street, Suite 1400 Orlando, Florida 32801
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Siting Board enter a Final Order that certifies the corridor for the BWM Line as consisting of the FPL Original Corridor from the Manatee Energy Center to the point where it is perpendicular to Taylor & Fulton’s southern property boundary, and then continuing south in the Consensus Corridor to the proposed Bobwhite substation; and that is subject to the Conditions of Certification that were entered into the hearing record as DEP Exhibit 8; and that is subject to the additional conditions agreed to by FPL and cited in paragraphs 161 through 163, and 183, of this Recommended Order; and that incorporates the terms set forth as paragraphs 5A through 5D of the Settlement Agreement entered into the record as FPL Exhibit 91, or comparable terms that provide for the environmental mitigation described therein, as conditions of this certification. DONE AND ENTERED this 11th day of August, 2008, in Tallahassee, Leon County, Florida. BRAM D. E. CANTER 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 11th day of August, 2008.
Findings Of Fact The proposed transmission line corridor is for the purpose of connecting a 230 kV line from the City of Tallahassee's existing system to the Georgia Power Transmission grid. The southern terminus of the corridor is in Leon County where the City's 230 kV line running north from the Hopkins' Power Plant makes a right angle turn toward the east, following Interstate Highway 10 (Section 13, Range 1 West, Township 1 North). The northern terminus of the corridor is that point where it ties to the Georgia system in Gadsden County, Florida, just south of the Florida State line in close proximity to the intersection of U.S. Highway 27 and SR 157 (Section 90, Range 1 West, Township 3 North, north of the Watson line). The corridor generally follows a center line conjunct with the Range 1 West range line, except that approximately 2.75 miles north of its southern terminus the corridor bends approximately 25 degrees to the east for a distance of approximately one-half mile before turning north for approximately 1.4 miles at which point the corridor turns west approximately 25 degrees for a distance of approximately 1.2 miles, and then turns east approximately 35 degrees for approximately 8 miles before once again turning north. The corridor encompasses several major highways, including Interstate Highway 10 and U.S. Highway 27. It also encompasses part of the Ochlocknee River, the Gadsden County, Florida landfill, part of the Tallahassee Commercial Airport, and part of the Ochlocknee Wildlife Management Area and Lake Talquin State Recreation Area. Just north of the rest stop on Interstate Highway 10, the corridor includes an area known as Riverwood Acres, a non-platted subdivision. The center line of the corridor bisects the subdivision. From its southern origin north, for approximately the first one mile of the corridor, the width of the corridor is approximately 9/16 mile. Thereafter the width of the corridor is approximately 1/2 mile. The location of the corridor is depicted in Figures 2-3, 2-6A, 2-6B, and 2-6C of the application. There being no more definitive a description of the location of the corridor than that shown in the maps comprising figures 2-6A, B, and C of the application, it is found as a matter of fact that those figures define the parameters of the proposed corridor. The length of the corridor is approximately 15 miles. The purpose of the corridor is to provide a 100 foot right-of-way for a 230 kV transmission line constructed upon H-frame wood poles, with an approximate span of 600 feet. Pursuant to the requirements of Section 403.537, Florida Statutes (1980 Supp.), the Florida Public Service Commission, by order dated March 31, 1981, found that: The construction of the proposed transmission line will enhance electric system reliability and integrity. The proposed transmission line will improve the availability of low-cost electric energy within the State of Florida. The point at which the City of Tallahassee proposes to connect to the construction of Georgia Power Company, and the point at which it proposes to connect to its own system, are the appropriate starting and ending points of the line. The Public Service Commission then concluded that the proposed transmission line is needed. Approximately 11.0 miles of the corridor's center line traverses land that is wooded and undeveloped. The remainder of the corridor center line, 3.9 miles, crosses land that reflects some type of human development or use. That includes land that is currently agricultural, in improved pasture, or simply open, cleared land. Although no residences lie within the corridor's center line, houses do lie elsewhere within the corridor. Several houses are located near the southern end of the corridor just north of Interstate Highway 10 in the area referred to as Riverwood Acres. Several houses are located near the Gadsden County Sanitary Landfill, and scattered houses are located in the corridor to the west of the Concord and to the south of the Darsey communities. Immediately beyond the eastern corridor boundary, but not within the corridor, is a developing neighborhood located in Township 1 north, Range 1 West, Section In that area residential property boundaries abut the eastern corridor boundary. Because of the objection by homeowners in the Riverwood Acres area, the width of the corridor has been slightly extended along the western and eastern boundaries so that the right-of-way may be placed with least impact upon the homes in that area. Approximately 0.05 acres of agricultural land will be directly disturbed by placement of transmission structures. It is expected that agricultural land can continue to be farmed between transmission structures. Where possible, existing road crossings or roads adjacent to the right-of-way will be utilized for maintenance and construction purposes. Where necessary, new access roads will be developed, but only to the extent needed for construction and maintenance of the line. The only major water body crossed by the proposed corridor is the Ochlocknee River. Impacts to the river should be negligible since the line structures on each side of the river will be physically located away from the river banks, and the lines and structures spanning the river will be situated well above the ordinary high water mark as defined by the United States Corps of Engineers. The uncontradicted evidence presented indicates that other streams or small water bodies crossed by the corridor will not be adversely impacted. Similarly, the uncontradicted evidence established that the two wetland areas to be crossed by the corridor center line will not be adversely impacted. A 230 kV transmission line is not considered an extra high voltage transmission line. Lines at 345 kV or larger are considered extra high voltage lines. The uncontradicted evidence establishes that there will be no significant noise impacts from the proposed transmission line operation. Except as otherwise noticed in the Findings of Fact herein, the uncontradicted evidence established that the proposed transmission line, if constructed along a right-of-way in the proposed corridor, pursuant to the conditions of certification, would have no significant adverse effect on the environment. Its impact on the environment will be minimal. Although none of the parties to this proceeding posed any objection to the proposed transmission line corridor and the transmission line to be constructed therein, three members of the public gave testimony in opposition to the site certification at the final certification hearing. The three persons were all residents of Riverwood Acres and were generally expressing the concerns of the neighborhood. Their sincere concern is evidenced by the excellent quality of their presentation. They expressed their opinion that their land value would be diminished by the construction of a transmission line adjacent or over their property. While it is difficult to consider the construction of such a transmission line as an enhancement to the property, as established by the testimony of their property will be diminished by the construction of the transmission line. These public witnesses also expressed a concern for the aesthetic damage to their neighborhood by the construction of this transmission line. It is found as a matter of fact that should the transmission line be constructed over or adjacent to these residential owners in Riverwood Acres, the aesthetic value of their environment would be diminished by the visual impact of the transmission line. Finally, these public witnesses expressed their concern and belief that the effects of the electric and magnetic fields generated by the transmission line would effect the health and welfare of the residents of the neighborhood. However, as established by the testimony of two witnesses expert in the areas of electrical engineering, radiation biology, and biophysics, the electric and magnetic field forces encountered in the vicinity of the transmission line at ground level will have essentially no biological effect, and will be no stronger than similar forces encountered in the normal course of modern daily life. These members of the public presented a thoughtful, well conceived proposed alternative routing which would take the proposed transmission line around their residential neighborhood. However, the evidence presented in this proceeding does not establish that the existence of the alternative proposed by these members of the public by itself indicates that the corridor for which site certification has been requested, will not produce minimal adverse effects on the environment, public health, safety and welfare. The Department of Environmental Regulation, the Department of Veterans and Community Affairs, the Department of Natural Resources, the Florida Game and Fresh Water Fish Commission, and the Northwest Florida Water Management District have all recommended that the proposed transmission line corridor will have minimal, if any, adverse effects on the environment and public health, safety and welfare. Those agencies have recommended no reason why the site should not be certified subject to the conditions proposed by the Department of Environmental Regulation, which conditions are attached to this Recommended Order. Notice of the final certification hearing was published on May 13, 1981, in the Tallahassee Democrat, a daily newspaper published at Tallahassee, in Leon County, Florida.
Recommendation Having reviewed the record of this proceeding, and based upon the Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED that certification, pursuant to the Transmission Lines Siting Act, Chapter 403, Florida Statutes (1980 Supp.), be GRANTED to the City of Tallahassee for the transmission line corridor and the construction of the subject transmission lines as proposed in the application as amended and the evidence admitted to the record. It is further RECOMMENDED that certification be made subject to the Conditions of Certification attached hereto and the further condition pursuant to the requirement in Section 403.531(3), Florida Statutes (1980 Supp.), that the City of Tallahassee shall be required to seek any necessary interests in state lands, the title to which is vested in the Board of Trustees of the Internal Improvement Trust Fund, from the Board prior to engaging in any activity on or affecting such lands. DONE AND ENTERED this 23rd day of July 1981 in Tallahassee, Florida. CHRIS H. BENTLEY 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 23rd day of July 1981. COPIES FURNISHED: Louis F. Hubener, Esquire Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 C. Laurence Keesey, Esquire Department of Veteran and Community Affairs Room 204, Carlton Building Tallahassee, Florida 32301 Paul Sexton, Esquire Public Service Commission 101 East Gaines Street Tallahassee, Florida 32301 Douglas Stowell, Esquire Northwest Florida Water Management District Route 1, Box 3100 Havana, Florida 32333 Kenneth Gilleland, Esquire Game and Fresh Water Fish Commission Bryant Building 620 South Meridian Street Tallahassee, Florida 32301 John Williams, Esquire Department of Natural Resources 3300 Commonwealth Building Tallahassee, Florida Ted Steinmeyer, Esquire Leon County Attorney Leon County Courthouse, Room 203 Tallahassee, Florida 32301 John Shaw Curry, Esquire Gadsden County Attorney Post Office Box 469 Quincy, Florida 32351 Barrett Johnson, Esquire c/o Mahoney, Hadlow & Adams Post Office Box 471 Tallahassee, Florida 32302 James R. Brindell, Esquire Post Office Box 3103 Tallahassee, Florida 32303 (Representing Riverwood Acres Neighborhood Association)
Findings Of Fact There is no dispute as to the facts involved in this rule challenge. Johnson Controls, Inc. is a large corporation operating throughout the United States. It engages in the business of manufacturing electrical components and in constructing, installing and servicing electrical control systems and other phases of electrical contracting work. As its name implies, Johnson Controls' primary emphasis in the electrical field is in selling, installing, and maintaining systems for fire, security, heating, air conditioning, and energy consumption controls. Johnson Controls is presently licensed to do electrical contracting work by 23 counties and municipalities in Florida and in 49 of the 50 states. Winfred Allen Infinger holds a B. E. degree in Technology and Construction, a journeyman electrician's license in Pinellas County, and is fully qualified by training and experience to be the qualifying agent of Johnson Controls in this application. In its letter of May 8, 1979 denying petitioner's application, Respondent, through its executive director, stated the following grounds: Your application failed to meet the qualification as that of a Florida licensed electrical contractor (468.181(5)) whose services are unlimited in the Electrical Field. The review of your application reflects that Johnson Controls, Inc., is a specialty contractor and presently Florida Statutes, Chapter 468, Part VII does not provide for licensure of specialty contractors.
Findings Of Fact Based on the testimony of the witnesses adduced at the hearing and the entire record compiled herein, I make the following: The Beker-Manatee transmission line was planned and given budget approval by Petitioner in 1974. This action was taken by Petitioner as a result of a documented request by Beker Phosphate Corporation to provide high-voltage service to the proposed Beker Phosphate Corporation mine in Manatee County, Florida. Right-of-way acquisition was begun in June, 1975, and more than one- half of the right-of-way has now been acquired by Petitioner. The original projected in-service date for the transmission line was July 1, 1976, however, completion was delayed due to, inter alia, alleged environmental problems encountered by Beker Phosphate Corporation in bringing its phosphate mine into production. Presently, Petitioner plans to complete construction and have the Beker-Manatee transmission line energized by the Spring of 1980. Additionally, Petitioner plans to construct an electrical transmission line between the proposed Keentown substation in Manatee County, and a proposed substation in DeSoto County near Arcadia, Florida, which is called the Whidden Substation. (Herein, sometimes called the Keentown-Whidden transmission line). The Keentown-Whidden transmission line was planned and budgeted by Petitioner during late 1975 as the most appropriate means of satisfying Petitioner's needs including providing reliable and adequate service to the Arcadia area; to provide service for specific customers (future) near the Keentown-Whidden transmission line and utilization of its existing facilities including existing transmission lines; to provide bulk power transfer capacity from Manatee into other parts of Petitioner's service area and to improve all transfer capacity between Tampa Bay and the lower west coast of Florida for mutual load supporting generation for emergency and economic reasons. According to its present plans, Petitioner plans to complete construction and have the Keentown-Whidden transmission energized by the summer of 1981, that is more than one year after the Beker-Manatee line is built and energized. On October 14, 1977, Respondent issued a binding letter of interpretation concluding that the Beker-Manatee transmission line is a development of regional impact within the guides of Chapter 380, Florida Statutes, and pertinent regulations since it formed a part of the Keentown-Whidden transmission line. However, in support of this position, Respondent introduced testimony and statements during the hearing indicating that its decision that the subject line is a development of regional inpact is based on five factors as follows: The Beker-Manatee transmission line is a 240 KV line, That the Beker-Manatee Line connects to the Keentown-Whidden transmission line, One of the functions of the Keentown-Whidden transmission line is to transfer bulk power, That the subject line is "the" source of power to energize the Keentown-Whidden transmission line and The Beker-Manatee and Keentown-Whidden lines are inseparable because without the Beker-Manatee transmission line the Keentown-Whidden transmission come not be energized. An examination of these factors revealed that the first three factors are applicable to all 240 KV lines of Petitioner as well as all other power companies. Specifically, testimony was introduced without rebuttal that all other 240 KV transmission lines connect with the subject line as well as the Keentown-Whidden line and form a statewide transmission system in what is commonly referred to as the "Grid". And of course, a primary function of all 240 KV transmission lines is to transmit bulk power. The remaining two factors, when examined, indicate that the Respondent relied on erroneous factors and/or conclusions in reaching its determination that the subject line is a development of regional impact. In this regard, testimony was introduced to the effect that the Beker-Manatee transmission line could be energized through any transmission line within the electrical grid provided the right switching devices were activated. It was also noted that the Keentown-Whidden transmission line could be energized without the Beker-Manatee transmission line provided again that the appropriate switching devices were activated. Throughout the engineering profession, transmission lines are customarily defined by the electric utility industry and by federal and state governmental agencies involved in the regulation of transmission lines, as a line extending from an electric generating power plant to the nearest substation or from a substation to the nearest substation. For example, the Federal Power Commission and the Institute of Electrical and Electronic Engineers' Standard Dictionary of Electrical Terms (1971) define transmission lines in this manner. With this in mind, it was noted that the Beker-Manatee transmission line is a line which extends from a substation to the nearest substation and it does not cross a county line. Respondent failed to demonstrate why the subject transmission line should not be reviewed as similar lines have been throughout the electric utility industry. Consideration was given to Respondent's argument that the subject line must be viewed as an integral electrical transmission line which when completed will connect and cross portions of DeSoto, Hardee and Manatee counties. However, evidence was introduced that when the subject line is completed, it like all other 240 KV lines form a contiguous segment of the entire electrical grid throughout the United States, and in that respect, such a consideration is not a distinguishing factor for this or any other 240 KV transmission line.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that the Division of State Planning issue a binding letter of interpretation to Florida Power and Light Company holding that the proposed Beker-Manatee line does not meet the criteria of Chapter 380, Florida Statutes, and Section 22F-2.03, Florida Administrative Code and therefore is not a development of regional impact. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 14th day of February, 1978. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675
The Issue Whether a proposed amendment to Rule 12A-1.053(7), Florida Administrative Code, constitutes an invalid exercise of delegated legislative authority and/or is unconstitutional?
Findings Of Fact The Parties. Petitioner, Florida Cable Television Association (hereinafter referred to individually as the "Association"), is a voluntary association of franchised cable television operators in the State of Florida. The Association's membership is reflected on Joint Exhibit 7. Petitioner, Cablevision Industries of Central Florida, Inc. (hereinafter individually referred to as "Central"), and Petitioner, Cablevision Industries of Middle Florida, Inc. (hereinafter individually referred to as "Middle"), are franchised cable system operators in Orange County, Florida. Central and Middle are members of the Association. Central provides cable television services in the cities of Clermont, Edgewater, Groveland, Helen, Holly Hill of Lake County, Mascotte and Oak Hill, and the Town of Minneola. Central also provides services in the Winter Garden, Orange County, Florida, franchise area. Middle provides cable television services in the cities of Belle Glade, Live Oak, Pahokee, Palatka, South Bay and the Town of Interlachan. Middle also provides cable television services in the unincorporated areas of Bradford, Palm Beach and Putnam Counties. Middle also provides services in the MAGNA franchise area, an area of Orange County. The Respondent is the Florida Department of Revenue, an agency of the State of Florida. The Department is charged with responsibility for administering the State's revenue laws. See Section 213.05, Florida Statutes. The following facts concerning the Intervenor, BellSouth, were stipulated by the parties to be true: BellSouth is a corporation authorized to do business in Florida . . . . . . . . 5. . . . a) BellSouth is a utility service provider which owns utility or transmission poles and receives fees from others for the privilege of attaching wires and other equipment to those poles; and, b) BellSouth pays fees to others who own utility or transmission poles for the privilege of attaching wires and other equipment to those poles. . . . . Adoption of the Challenged Rule. On December 31, 1992, the Department caused to be published notice of its intent to amend Rule 12A-1.053, Florida Administrative Code. The notice was published in the Florida Administrative Weekly, Volume 18, No. 53, December 31, 1992 (hereinafter referred to as the "Notice"). See Joint Exhibit 1. On January 21, 1993, the Petitioners initiated a challenge to the proposed amendment of Rule 12A-1.053(7), Florida Administrative Code, by instituting a Section 120.54, Florida Statutes, proceeding. The Challenged Rule provides the following: The charge by the owner of a utility or transmission poles to anyone other than a utility service provider as the term "utility service" is defined in s. 203.012(9), Florida Statutes, for the privilege of attaching wires and other equipment thereto is taxable as provided in s. 212.031, Florida Statutes, as a license to use real property. Joint exhibit 1. The "specific authority" for the Challenged Rule cited by the Department in the Notice was Sections 212.17(6), 212.18(2), and 213.06(1), Florida Statutes. The "law implemented" by the Challenged Rule cited by the Department in the Notice was Sections 212.02(20), 212.05(1)(b)(e), 212.06(1)(a)(b) and (2)(a), 212.08(4) and (7)(j), and 212.18(2), Florida Statutes, and Sections 13 and 14 of Chapter 92-319, Laws of Florida. The Taxable Event; Effect on the Petitioners. Typically, members of the Association, including Central and Middle, deliver cable television services in the State of Florida through wires and equipment attached to utility poles. Typically the wires are utilized by cable television providers to transmit audio and video signals to subscribers of the providers' services. Although cable television providers may own some poles and, in some instances, may install their own poles, most cable television providers, including Central and Middle, enter into agreements with owners of utility poles, such as electric and telephone providers, for the use of existing poles (hereinafter referred to as "Attachment Agreements"). See Joint Exhibits 2(a)- 1, 2(a)-2, 2(b)-1, 2(b)-2, 2(c)-1 and 2(c)-2, which are examples of Attachment Agreements. Pursuant to the Attachment Agreements, cable television providers agree to pay a fee to the owner of utility poles for the right to attach cable television wires and equipment to the poles. The fee is typically calculated based on the number of poles used each year. Pursuant to the Challenged Rule, members of the Association, and Central and Middle, will be required to pay sales and use tax on the charges they pay pursuant to Attachment Agreements they enter into. Utility Pole Characteristics. Utility poles to which cable television provider wires and equipment is attached are usually owned by utility service providers and are installed on public and private streets or rights-of-way. The underlying land and right-of- way may or may not be owned by the utility provider. Utility poles remain the property of the utility provider and do not become the property of the owner of the land or the right-of-way upon which the pole is located. Electric service provider utility poles are generally considered to be components of the "overhead electric distribution system," which consists primarily of the poles wires and transformers. The components are suppose to be designed and installed in accordance with the National Electric Safety Code. Poles installed pursuant to the National Electric Safety Code are to be installed in the ground and are anchored to the ground to insure that the pole remains in a vertical position. Anchoring may be secured by cement anchors and bolts embedded in concrete which is placed in the ground. Poles are installed and anchored to withstand the forces of nature. Generally, poles are installed to withstand winds of up to 150 miles per hour. In general, poles are intended to be installed permanently and, on average, have a useful life of twenty-five to thirty years. In practice, utility poles are sometimes replaced or moved. Poles become rotten and have to be replaced. Poles are also replaced when damaged. Poles are also removed and relocated for various reasons. Central and Middle were aware of approximately 200 utility pole changes during one year. In order to replace or move a utility pole, heavy equipment is required. Exemption for Utilities. Most poles to which cable television wires are attached are already being used by utilities for utility services. Pursuant to the Challenged Rule fees paid by "utility service providers" for the use of utility poles to attach wires and other equipment to utility poles are exempt from sales and use tax. The Department's exemption of utility service providers is based upon the provisions of Section 212.031(1)(a), Florida Statutes: (1)(a) It is declared to be the legislative intent that every person is exercising a taxable privilege who engages in the business of renting, leasing, letting, or granting a license for the use of any real property unless such property is: . . . . 5. A public or private street or right-of-way occupied or used by a utility for utility purposes. Currently only utilities and cable television providers enter into Attachment Agreements. Local Government Franchise Agreements. Central and Middle operate in their respective areas of the State of Florida pursuant to agreements with local governments (hereinafter referred to as "Franchise Agreements"), authorizing them to provide cable television services within the jurisdiction of the city or county with which the agreement has been entered into. See Joint exhibit 3. Franchise Agreements entered into by Central and Middle generally give them a nonexclusive right to provide cable television services in the areas they serve. Central and Middle both operate within areas located in Orange County, Florida. Orange County has enacted Chapter 12 of the Orange County Code, Community Antenna Television Systems; Cable Television, Etc. Joint exhibit 5a. Section 12-48 of the Orange County Code, provides, in part, the following: Payment to the grantor of franchise consideration. A cable operator shall pay to the county a franchise fee of five (5) percent of its gross annual revenues for each year of the term of the franchise. The franchise fee shall be in addition to all other taxes, fees and assessments which are required to be paid to the county, and which do not constitute a franchise fee under the Act. . . . . . . . Time of Payment. . . . . (3) Nothing in this subsection (b) shall limit the cable operator's liability to pay other applicable local, state or federal taxes, fees, charges or assessments. A fee (hereinafter referred to as a "Franchise Fee"), similar to that charged pursuant to Section 12-48 of the Orange County Code is imposed by Palm Beach and Hillsborough Counties. See Joint exhibits 5(b) and 5(c). Franchise Fees are paid by cable television providers for the right to serve a given community. Not all cable television service providers are required to pay Franchise Fees of 5 percent. Central and Middle report their gross income on a quarterly basis to Orange County for purposes of paying the Orange County Franchise Fee imposed by Section 12-48 of the Orange County Code. Central and Middle calculate and pay to Orange County a Franchise Fee of 5 percent of their annual gross income. The Orange County Franchise Fee is paid quarterly. See Joint exhibits 4(a) and 4(b). The Orange County Franchise Fee is imposed on all gross revenues of Central and Middle, i.e., installation charges, leases of remote and converter boxes, sale of program guides and advertising. Central and Middle have entered into Attachment Agreements to utilize utility poles located in Orange County. A fee is paid for the use of those poles pursuant to the Attachment Agreements. The State of Florida does not impose a Franchise Fee on cable television service providers in Florida. In addition to paying Franchise Fees, some cable television service providers, including Central and Middle, also pay sales taxes in the State of Florida. 47 U.S.C. Sections 521-559 (hereinafter referred to as the "Cable Act"), provides Federal regulations governing cable television systems operated in the United States. Rule 12A-1.046(4)(b), Florida Administrative Code. Rule 12A-1.046(4)(b), Florida Administrative Code, provides: (b) The charge by the owner of utility or transmission poles to others for the privilege of attaching wires or other equipment thereto is exempt as a service transaction. The provisions of Rule 12A-1.046(4)(b), Florida Administrative Code, are in conflict with the Challenged Rule. Rule 12A-1.046(4)(b), Florida Administrative Code, has not been amended or repealed by the Department. It is, therefore, a valid rule of the Department. The Department, after proposing to amend Rule 12A-1.046(4)(b), Florida Administrative Code, to eliminate the inconsistency with the Challenged Rule, decided to await the outcome of this case. Although a final decision has not been made, it is reasonable to conclude that the discrepancy between the Challenged Rule and Rule 12A-1.046(4)(b), Florida Administrative Code, will be eliminated if the validity of the Challenged Rule is ultimately upheld.
