The Issue The issue is whether Plan Amendment 07-08 adopted by the City of Tampa (City) by Ordinance No. 2008-145 on August 21, 2008, is in compliance.
Findings Of Fact Based upon all of the evidence, the following facts are determined: The Parties The City is a municipality in Hillsborough County and has adopted a Plan that it amends from time to time. Its current Plan, as amended, was adopted in 1998 and has been determined to be in compliance. Since 2007, the City has participated in the Pilot Program for adoption of plan amendments, a process described in Section 163.32465, Florida Statutes. Under the Pilot Program, municipalities have "reduced state oversight of local comprehensive planning," and plan amendments may be enacted in "an alternative, expedited plan amendment adoption and review process." Id. The amendment being challenged here was adopted under the Pilot Program. The Department is the state land planning agency and is statutorily charged with the duty of reviewing plan amendments. Pursuant to the Pilot Program, the City must send a plan amendment transmittal package to the Department (and other designated agencies and entities) for its preliminary review. However, the Department does not issue an Objections, Recommendations, and Comments Report or a notice of intent. Instead, it "may provide comments regarding the amendment or amendments to the local government." § 163.32465(4)(b), Fla. Stat. The Department may also initiate an administrative proceeding for the purpose of determining whether an amendment is in compliance. See § 163.32465(6)(b), Fla. Stat. Florida Rock owns property and operates a business within the City and submitted oral and written comments in support of the proposed amendment. The facts establish that it is an affected person and has standing to participate in this proceeding. The Air Force owns property abutting Florida Rock's property and on which MacDill is located. The Air Force submitted written and oral comments to the City in opposition to the plan amendment. As such, it is an affected person and has standing to participate in this proceeding. Background A part of the City extends down a peninsula known as Interbay Peninsula with Hillsborough Bay to the east, Tampa Bay to the south, and Old Tampa Bay to the west. MacDill is located at the southern tip of the peninsula and consists of 5,767 acres. The facility was established in 1941. Its primary runway (Runway 4/22) is 11,421 feet long, exclusive of the 995- foot overrun, and runs in a southwest-northeast direction. Because of prevailing winds and its proximity to other airports in the St. Petersburg area to the west, the majority of the takeoffs are to the northeast. Around ninety percent of the landings are from the southwest (over Tampa Bay on the approach) to the northeast. Florida Rock owns two adjoining parcels of land on Interbay Peninsula, totaling 25.51 acres, located at 6604 South Dale Mabry Highway, which is a commercial corridor. The property lies just south of InterBay Boulevard, a few hundred feet west of Himes Avenue, and directly north of MacDill. At its closest, the site is less than three thousand feet from the edge of the overrun portion of the active runway. To the north and east of the property are residential properties, many of which were developed between 1940 and 1959. Another surge of development occurred in the 1980s. The properties to the north have residential land use designations. Future residential development of parcels to the north and east are capped at ten units per acre because of their location near MacDill. Directly to the south of the property is a vacant parcel with a Light Industrial land use. To the east of that property is land used as a park and includes baseball and soccer fields. MacDill lies south of the vacant parcel. The existing uses west of the property (and to the west of Dale Mabry Highway) are commercial, industrial, apartment, and office. The subject property has been classified as Light Industrial under the City's Plan. As the name implies, that land use category allows for light industrial uses that have only minimal offsite impacts such as noise and odor, along with offices, manufacturing, warehousing, and other general commercial uses. Residential uses are prohibited under this category. Development is subject to a maximum floor area ratio of 1.5. (Floor area ratio measures the intensity of non- residential land uses.) Currently, a warehouse distribution facility (truck terminal) owned by Florida Rock is located on the northern end of the property. Approximately one-half of the parcel is vacant. A small part of the property (between eight and nine acres) on the southern end is wetlands and has been designated as an environmentally sensitive area by the Planning Commission. On March 8, 2007, Florida Rock filed an application with the Planning Commission to change the land use on the property from Light Industrial to Community Mixed Use-35 (CMU- 5). See Joint Exhibit 2. The proposed use of the property was described in the application as a "Mixed Use Development." Id. The new land use designates "areas suitable for general commercial, professional office, and multi-family development" and, absent any other limiting conditions, would permit a development potential of eight hundred ninety-two residential units or a maximum commercial buildout of almost 1.7 million square feet. No text amendments were proposed. On March 31, 2008, the Planning Commission recommended approval of the application and forwarded that recommendation to the City. On April 10, 2008, the City held its first public hearing on the amendment and voted to transmit the plan amendment to the Department and other entities that are required by law to receive copies of the amendment and supporting data and analyses. See § 163.32456(4)(a), Fla. Stat. The proposed amendment and supporting data and analyses were submitted to the Department and other entities on April 11, 2008. See Florida Rock Exhibit 2. Comments regarding the amendment were submitted by the Department to the City on May 14, 2008. See Department Exhibit Comments were also filed by the Air Force, the Florida Department of Transportation, and the Tampa Bay Regional Planning Council, all voicing concerns.4 The Department concluded its comments by stating that it "strongly urges the City not to adopt the amendment." Id. Notwithstanding the adverse comments, on August 21, 2008, the City adopted Ordinance No. 2008-145, which approved the application and changed the land use on Florida Rock's property to CMU-35. To counter at least in part the objections lodged by the Department and Air Force, the Ordinance contained a condition that "[r]esidential density shall not exceed ten (10) units per gross residential acre of land and/or a floor area ratio of 1.5." See Florida Rock Exhibit 3. This limitation on residential development is consistent with Future Land Use Element (FLUE) Policy A-3.1, adopted in 1989, which limits new residential development within the MacDill and Tampa International Airport flight paths, also known as Accident Potential Zones, to ten dwelling units per acre. Under either category, Florida Rock can build more than 1.5 million square feet of commercial uses. More than likely, the potential residential (and/or commercial) development on the property will be something less than ten dwelling units per acre because of setback, parking, mitigation, and other miscellaneous requirements. Also, density bonuses do not apply. One City witness estimated that the maximum development potential will be around 8.6 units per acre. The Department timely filed its Petition with DOAH on September 26, 2008. See § 163.32465(6)(b), Fla. Stat. ("[t]he state land planning agency may file a petition with the Division of Administrative Hearings pursuant to ss. 120.569 and 120.57, with a copy served on the affected local government, . . . within 30 days after the state land planning agency notifies the local government that the plan amendment package is complete"). Although the Petition and parties' Joint Prehearing Stipulation identify a number of issues to be resolved, the Department and Air Force's Proposed Recommended Orders address only two broad grounds for finding the amendment not in compliance: that the proposed land use is not compatible with the adjacent military installation, which the Department describes as being the "principal dispute in this proceeding"; and that the proposed plan amendment is not based on relevant and appropriate data and analyses, as required by Section 163.3177(6)(a), Florida Statutes, and Florida Administrative Code Rule 9J-5.005(2)(a). All other allegations are assumed to no longer be in issue, voluntarily withdrawn, or not supported by the preponderance of the evidence.5 Operations at MacDill The host wing at MacDill is the Sixth Air Mobility Wing (Wing). Serving under that Wing is the 91st Air Refueling Squadron (Squadron), which owns sixteen KC-135R aircraft that are permanently based at MacDill. The Squadron's primary mission is refueling other military aircraft, a mission that requires the KC-135R to travel around the globe. The KC-135R can carry up to 200,000 pounds of Jet Propellant 8 (JP-8) aviation fuel, a kerosene-based jet fuel, depending on the nature and duration of its mission. Besides the KC-135R, other aircraft permanently based at MacDill include three C-37s (smaller jet aircraft) assigned to the 300LS Squadron, the 310th Airlift Squadron, and five or six aircraft associated with the National Oceanic and Atmospheric Administration. MacDill also hosts approximately six-to-eight joint exercises per year (lasting between one and three weeks) involving numerous fighter and bomber aircraft that use the Avon Park bombing range for training, as well as C-17s and C-130s (transport aircraft) that use the facility for special training. In addition, Air Force and National Guard reserve units train at MacDill. Therefore, on any given day, multiple fighters and aircraft from other military branches, and occasionally even a commercial aircraft, may use the runways at MacDill. On an average day at MacDill, there are sixty takeoffs and landings and up to five sorties. This does not include touch and go takeoffs and landings, which involve pattern or transition work. Mainly residential uses are located in the flight path of Runway 4 as far south as, and to the east of, the Florida Rock property. That type of development continues in the flight path until the aircraft exit the Interbay Peninsula and pass over Hillsborough Bay. Due to this encroachment, when departing on Runway 4, the aircraft maintain a runway heading until reaching an altitude of four hundred feet; they then turn right on a heading of 080 and climb to, and maintain, one thousand, six hundred feet until air space is de-conflicted to ensure that all aircraft in the area are separated. Air traffic control requires that all flights are instrument departures using radar vectors. Also, because of existing residential encroachment and concerns about noise, MacDill has compromised some of its mission flexibility by limiting its hours of operation to 6:00 a.m. to 11:00 p.m. and limiting engine use on some fighter aircraft by reducing after-burning usage. When departing on Runway 4 and passing just to the east of Florida Rock's property (and over the closest existing residential development), the KC-135R is at an elevation of approximately three hundred feet and sometimes as low as one hundred forty feet, depending on its fuel load and wind conditions. Air Installation Compatible Installation Zone (AICUZ) The AICUZ program is a program developed by the United States Department of Defense for military airfields to promote land use compatibility in areas subject to aircraft noise and accident potential. There have been four AICUZ studies prepared for MacDill, which were published in 1976, 1978, 1998, and 2008. The latter study was not yet finalized and available to the public when Plan Amendment PA-07-08 was adopted. The 1998 study was prepared to present and document flying conditions at MacDill following the reassignment of KC-135R aircraft to the base in 1996. The AICUZ delineates a Clear Zone, Accident Potential Zone I (APZ I), and Accident Potential Zone II (APZ II) for each runway and makes land use recommendations for each of those areas. These areas are based on standardized data compiled from military airfields around the globe to determine areas of increased accident potential. However, the studies do not assess risk nor consider the safety record of each individual airfield. Based on the standardized data, the Clear Zone is the area with the highest potential for accidents, then the APZ I, and finally the APZ II. Accident potential increases toward the centerline of the runway, and away from the ends of those zones. The southwest corner of Florida Rock's property abuts the Clear Zone for Runway 4, while the remainder of the site lies within the APZ I north-northeast of the runway. Two aerial photographs submitted into evidence provide an excellent view of the zones, the flight path of Runway 4, the existing development north of the airfield, and the location of Florida Rock's property. See Air Force Exhibits g and g1. The AICUZ land use compatibility chart recommends no residential uses in a Clear Zone or in an APZ I. (The chart identifies a number of examples of uses that are compatible with APZ I and flight operations at MacDill, such as miscellaneous manufacturing and low intensity office use. See Department Exhibit 3, pages 46 through 50.) In an APZ II, the AICUZ only recommends approval of single-family detached units for residential uses. These recommendations apply to all military installations with airfields and do not take into consideration unique local situations. However, the AICUZ recommendations are not binding on local governments and are to be balanced by the local government along with other planning considerations. The active runway at MacDill is three thousand feet wide. At the end of the overrun for Runway 4 (and Runway 22 to the southwest) is the Clear Zone, which is normally three thousand feet wide and three thousand feet long. At the end of the Clear Zone is the APZ I, which ordinarily is three thousand feet wide and five thousand feet long. At the end of the APZ I is the APZ II, which ordinarily is three thousand feet wide. By using standardized APZs, the Air Force can alter the mission of a base (e.g., change from fighters to bombers) without having to alter the APZs. The southeastern end of Runway 22 is surrounded by Tampa Bay. Therefore, the Clear Zone, APZ I, and APZ II for Runway 22 are located over the water and conform to the standard dimensions described above. Because aircraft departing on Runway 4 are required to make a right turn to a heading of 080 shortly after departure, the flight track for Runway 4 has an atypical split to the right. This deviation from a straight extension from the runway is permitted only when a majority of the aircraft fly predominately in the alternate direction. This split causes the APZ I for Runway 4 to deviate from the ordinary rectangular shape and to have two distinct APZ IIs, one directly northeast of, and aligned with, Runway 4, and the other to the east-northeast tracking the alternate direction of the aircraft after takeoff. The City's Plan depicts the Clear Zone, APZ I, and APZ II on Figure 11 of the Transportation Element and shows the outline of those areas on the FLUM. See Fla. Admin. Code R. 9J-5.019(2)(a)5. and (5)(a)7., which requires that both the Transportation Element and FLUM depict "clear zones and obstructions." Besides the delineation of a Clear Zone, APZ I, and APZ II, the AICUZ also includes noise contours and land use recommendations based on these noise contours. Noise contours are specific to each airfield based on one year of flight data applying noise variables, such as aircraft type, altitude, and engine power. An additional ten decibel (dB) noise penalty is added for flights after ten o'clock in the evening. Noise contours are mapped in five dB increments between sixty-five and seventy dB. A noise of sixty-five dB is equivalent to the sound of normal conversations. A noise of seventy-five dB is perceived by most persons to be twice as loud as a sixty-five dB noise. The AICUZ land use guidelines include a determination that residential uses in the Day Noise Level (DNL) sixty-five to sixty-nine contour and seventy to seventy-four contour are generally compatible with noise attenuation of twenty-five dB and thirty dB, respectively. The guidelines further note that residential use is discouraged in DNL sixty-five to sixty-nine and strongly discouraged in DNL seventy to seventy-four, but if residential uses must be allowed, measures to achieve outdoor to indoor Noise Level Reduction (NLR) for DNL sixty-five to sixty- nine dB and DNL seventy to seventy-four dB should be incorporated into building codes. The subject property is located mostly in the DNL sixty-five to sixty-nine dB contour, while less than nine acres in the southern portion are located within the DNL seventy to seventy-four dB contour. The FAA compatibility guidelines codified in 14 CFR Part 150, Appendix A, which apply to civilian airports, include a determination that residential uses are compatible with the DNL sixty-five to sixty-nine contour. Nothing in Chapter 163, Florida Statutes, or Florida Administrative Code Rule Chapter 9J-5 requires noise contours to be mapped or for comprehensive plans to include noise standards. The Joint Land Use Study (JLUS) The JLUS is a Department of Defense program administered through its Office of Economic Adjustment and funded by the Federal Government. It provides funds and resources for local governments located adjacent to military installations, such as the City, to evaluate a study area of properties affected by the military installation. The City and MacDill conducted a JLUS, which was finalized in June 2006, or before Amendment PA07-08 was adopted. The study was initiated at the request of MacDill because of its concern that urban encroachment might affect its operations and future viability. Two of the stated goals of the JLUS were to promote "comprehensive planning for long term land use compatibility between MacDill and the surrounding community" and to restrict "land uses that are deemed to be incompatible with MacDill operations by the AICUZ study." See Department Exhibit 4. The JLUS relied heavily upon information regarding flight operations, accident potential, and noise impacts in the 1998 AICUZ. It analyzed each zone in the AICUZ to identify existing development encroachment densities and ultimately made recommendations regarding development issues adjacent to MacDill. According to the 2006 study, residential uses constitute ninety-one percent of the three hundred twenty-seven acres of property that lie within the APZ I and most are single- family detached homes. As of 2003, the AICUZ was almost fully developed and only 72.2 acres were held in private ownership. Most of this development has existed for years. The study further indicated that almost eight thousand people lived in APZ-1, and that the average net density in the APZ I is 5.78 units per acre, although higher densities exist in some areas. The JLUS included four sets of land use options for the Clear Zones and APZs, which vary in intensity from three to ten units per acre, none of which followed the AICUZ recommendation of no new residential uses in APZ I. One recommended option was that within APZ I, densities for residentially-designated parcels be limited to zero to six dwelling units per acre and a 0.5 floor area ratio. Another recommended option was to maintain the status quo within the APZ I, as expressed in FLUE Policy A-3.1, of ten dwelling units per acre. Ultimately, the committee preparing the report adopted the zero to six dwelling units per acre option. The JLUS further recommended that the City amend FLUE Policy A-3.1 by establishing a new land use category entitled "Military Installation Airport Compatibility Plan Category" with a density/intensity range of zero to six dwelling units per acre and a 0.5 floor acre ratio within APZ I. See Department Exhibit 4, page 5-5. Although the Planning Commission recommended to the City that these changes be approved, to date the City has not formally adopted either recommendation in its Plan. See Department Exhibit 19. The Objections Compatibility The Department and Air Force contend that the proposed future land use on the Florida Rock property (CMU-35) is not compatible with MacDill. Although the Department has not adopted any rule specific to military installation compatibility or to airport APZs, the word "compatibility" is defined in Florida Administrative Code Rule 9J-5.003(23) as follows: A condition in which land uses or conditions can coexist in relative proximity to each other in a stable fashion over time such that no use or condition is unduly negatively impacted directly or indirectly by another use or condition. Whether or not adjacent property is "unduly negatively impacted" and therefore compatible or not is a fact-specific determination made by the Department on a case-by-case basis. Section 163.3177(6)(a), Florida Statutes, was amended in 2004 to require that the FLUE of each local government "include criteria to be used to achieve the compatibility of adjacent or closely proximate lands with military installations." To assist local governments with all types of land use compatibility issues, including those involving military installations, in May 2004 the Department prepared a PowerPoint presentation, presumably for the benefit of various local government planning officials. See Florida Rock Exhibit 34. Among other things, the document includes a list of twelve "Suggested Best Practices" in addressing military installation compatibility. One suggested practice is for the local government to adopt noise attenuation standards in either the plan itself or land development regulations. To ensure compliance with the 2004 statutory amendment, as well as requirements of Florida Administrative Code Rule Chapter 9J-5, the City's Plan includes a number of provisions to achieve compatibility with MacDill operations. Most, if not all, of these provisions were actually in effect before the change in the law, having been adopted in response to the 1998 AICUZ. Specifically, Transportation Element Objective 9.6, and underlying Policies 9.6.1 through 9.6.5, generally require that the City ensure that new development will not obstruct military aircraft operations; that MacDill representatives be included in the review of all proposed plan amendments within the APZs and Approach Zones; that the City consult the AICUZ recommendations when proposing land use changes within APZ I and II; that the City promote compatibility within the APZs and Approach Zones through reduced densities; that the City and Planning Commission continue to review the impacts of development within the Approach Zones; and that communication towers and antennas be prohibited in APZ I and II. See Fla. Admin. Code R. 9J-5.019(4)(c)21., which requires that the Transportation Element include policies to "[protect] airports from the encroachment of incompatible land uses." In addition, FLUE Objective A-3, and underlying Policies A-3.1, A-3.3, A-3.4, A-3.6, and A-3.7, some of which apply only to MacDill, and others to both MacDill and Tampa International Airport, generally require that "adjacent development be compatible with airport related activities"; that future residential development be restricted to ten dwelling units per acre; that new construction and redevelopment which inhibits the safe and efficient operation of airport facilities with the APZs be prohibited; that "noise sensitive" development be prohibited unless noise attenuation features are included; that new development not obstruct aircraft operations; and that floor area ratios be promoted to guarantee the efficient operation of the airports. See Fla. Admin. Code R. 9J- 5.006(3)(c)2., which requires policies in the FLUE that "[p]rovi[de] for compatibility with adjacent uses." As noted earlier, all of these provisions have been found to be in compliance. The compatibility argument by the Department and Air Force centers around two concerns: accident potential and noise impacts of aircraft departing from and/or landing at MacDill. In response to the accident potential concern, Florida Rock and the City point out that no witness could recall a Class I accident (one resulting in a property loss of over $1 million, a loss of life, or a permanent injury) ever occurring at a MacDill Clear Zone or APZ. They also point out that aircraft safety is continually improving, and that the Air Force itself concedes that the number of accidents has decreased "tremendously" over the last forty years. Finally, they point out that ninety percent of the landings at MacDill are from the southwest over Tampa Bay and thus pose no threat to Florida Rock's property. The two stages of a flight with the greatest potential for accident are on takeoff and landing. Based on historical locations of accidents, the APZ has the greatest potential for accidents when aircraft are in distress. The Florida Rock parcel is located within APZ I. Although no Class I accidents have occurred at MacDill for at least the last forty years, and aircraft safety has dramatically improved over the years, there is no guarantee that an accident will not happen in the future. If an accident occurred, the results could be highly destructive. This is particularly true since the KC-135R routinely departs over or close to the southeastern corner of the Florida Rock parcel, sometimes at altitudes as low as one hundred forty feet, carrying up to 200,000 pounds of JP-8 aviation fuel. Debris scatter from a larger, heavier aircraft such as the KC-135R typically covers around eight acres. The debris scatter from a smaller aircraft, such as a fighter jet, is around three acres. Therefore, an aircraft accident would obviously be catastrophic for residents living around the site of the accident. Depending on its location, residential encroachment in the APZ can erode operational flexibility. As noted earlier, due to long-existing residential housing north and northeast of the airfield, the hours of operation at MacDill have been curtailed by eliminating flights between 11:00 p.m. and 6:00 a.m., more than likely due to noise concerns rather than safety issues. The KC-135R must make a right turn towards Hillsborough Bay when it reaches an elevation of only four hundred feet. Pilots must use instruments (rather than visual flight rules) and vectors when departing the airfield, but the evidence suggests this limitation is due to congested traffic in the area and the fact that MacDill air traffic control only "owns" the airspace below one thousand, six hundred feet, and not because of residential encroachment. According to an Air Force witness, depending on the type of development in the APZ and the height of the structures, it might cause the KC-135R to maintain a higher altitude on takeoff (with a corresponding lower fuel load) and/or to make a slight change in direction. However, FLUE Policy A-3.3 prohibits new construction "which inhibits the safe and efficient operations of airport facilities within the [APZ]"; FLUE Policy A-3.6 provides that "[n]ew development shall not obstruct aircraft operations"; and FLUE Policy A-3.7 provides that "[a]ll building regulations (floor area ratios (FAR) and height) shall be promoted to guarantee the continued efficient operation of the airport and ensure public safety." Also, Transportation Element Policy 9.6.5 prohibits the construction of communication towers and antenna in the APZ I and II zones. Presumably, these restrictions are enforced during the site approval process. MacDill has always been located in an urban area and residential development has existed for decades directly in the flight path of Runway 4. In fact, the AICUZ was nearly fully developed in 2003. Therefore, it is fair to characterize the area in and around the flight path as already developed and built out with a residential character. While the potential for an accident is always present, the evidence does not show that this consideration has unduly negatively interfered with the missions or operational flexibility of the base. Even the 1998 AICUZ describes the risk to people on the ground of being killed or injured by aircraft accidents as "minute." See Department Exhibit 3, page 42. Even though the proposed change in land use will result in more residential development to the west of the flight path for aircraft using Runway 4, it should not unduly negatively impact, directly or indirectly, the use or condition of MacDill. (Under the Light Industrial land use, Florida Rock can now construct a building that employs hundreds of people.) The more persuasive evidence shows that the plan amendment is not incompatible in this respect. Most of the Florida Rock property lies entirely within the DNL sixty-five dB noise contour zone. This means that the average noise exposure is sixty-five dB, but the actual noise of all aircraft in the fleet is much louder than that on takeoff. For example, fighter aircraft are around one hundred ten dB at one thousand feet and would be much louder at lower altitudes. Some types of bombers, which occasionally use the base for training operations, were described as being so loud that you have "to hold the table down or things will fall over." Even so, CMU-35 residential development within this category of noise exposure is consistent with the FAA land use compatibility table and is generally compatible with AICUZ land use guidelines. The southern end of the site, which is a wetland area, is within the DNL seventy to seventy-four dB noise contour, but it is highly unlikely that development could ever occur in that area, given its designation as an environmentally sensitive area by the Planning Commission. The City has adopted a land development regulation, codified as Section 27-137.5, which requires that all residential development within the APZ-I be "designed and constructed to reduce noise levels by twenty-five (25) decibels." Another land development regulation, Section 5-301.1 requires noise level reduction, or abatement, of twenty-five dB for construction in the APZ-I. Both provisions were enacted in order to ensure compatibility with MacDill's operations. While the Department points out that there are no specific provisions such as these in the Plan to reduce noise impacts, FLUE Policy A-3.4 "[p]rohibit[s] future 'noise sensitive' development such as residences . . . which do not provide the required noise attenuation features within those noise contour areas adjacent to MacDill AFB which may pose health hazards." The Air Force acknowledged that curtailment of flight operations for the KC-135R has not occurred due to noise complaints from residents or users of property around the base. In making this admission, it may have overlooked the fact that late-night operations (between 11:00 p.m. and 6:00 a.m.) have been curtailed for an unknown period of time, presumably because of concerns that operations during these hours would disturb the nearby residential areas. But this is due to existing development, and not future development, and there is no evidence that development by Florida Rock would likely cause a further reduction in MacDill's hours of operation. Although the Department argues that residents in the neighborhood adjacent to MacDill constantly complain to the base and City officials, recorded noise complaints numbered only seventeen in 2007, twenty-five in 2008, and sixteen through the date of the hearing in 2009. One person living in APZ II was the source of eleven of the twenty-five recorded complaints in 2008 and four of the sixteen in 2009, while many of the other complaints came from persons who live in other counties or cities in the area. It is fair to say that all of the noise complaints are associated with fighter and bomber aircraft, which occasionally use the base for training missions, and not the KC-135R, which is permanently stationed at the base. Even though the Florida Rock property may be subjected to potentially more than a hundred takeoffs and landings per day, with aircraft operating at altitudes as low as one hundred forty feet, there is insufficient evidence to support a finding that military operations will be affected by noise concerns. This is evidenced by the fact that literally hundreds of existing residences in the APZ are now subjected to the same conditions, yet they have coexisted with MacDill operations for many years. Further support for this finding is based on the fact that very few complaints have been filed by persons living in the immediate area. Even though a City witness conceded that the noise from aircraft may be a "nuisance" to some area residents, the greater weight of evidence supports a finding that from a noise perspective, the proposed change in land use would not be incompatible with MacDill operations or use.6 The evidence supports a finding that a change in the land use for the Florida Rock property will be compatible with adjacent uses, including MacDill, as that word is defined in Florida Administrative Code Rule 9J-5.003(23). Data and Analysis The map change on the FLUM must be based on surveys, studies, and data regarding the area, including the compatibility of uses on lands adjacent to or closely proximate to military installations. See § 163.3177(6)(a), Fla. Stat. Florida Administrative Code Rule 9J-5.005(2) implements that provision and spells out the requirements for satisfying the statute. These include requirements that the data must be "relevant and appropriate," "taken from professionally accepted existing sources, such as . . . existing technical studies," and "collected and applied in a professionally acceptable manner." See Fla. Admin. Code R. 9J-5.005(2)(a). The City must also "react to it in an appropriate way" at the time the amendment is adopted. Id. Finally, a local government may rely on data and analysis used to support the original plan or a previous plan amendment unless "the previously submitted data and analysis no longer include and rely on the best available existing data. See Fla. Admin. Code R. 9J-11.007(1). The Department and Air Force argue that the 1998 AICUZ and the June 2006 JLUS are the best available, relevant, and appropriate data regarding land uses around MacDill, and that the City failed to appropriately react to that data when it adopted the amendment. They further argue that the City relied on data and analyses supporting the 1998 Plan, which is no longer the best available existing data. On the other hand, Florida Rock and the City assert that there is adequate data and analysis that support the adopted map change, including the Transportation Element and FLUE policies listed above (Joint Exhibit 1), the JLUS data and recommendations (Department Exhibit 4), the Planning Commission report (Florida Rock Exhibit 3), the City Community Planning Division staff report (City Exhibit 28), the portion of the Department's PowerPoint relating to Military Installation Compatibility (Florida Rock Exhibit 34), and 14 CFR Part 150, Appendix A, which was officially recognized. The 2006 JLUS includes as one option a recommendation that the status quo for density in FLUE Policy A-3.1 be maintained for development around MacDill. The Planning Commission staff report noted that both land use categories have the same maximum commercial buildout potential; that the site will never be developed to its maximum potential; that the change is consistent with recent trends away from light industrial in that area; that the new designation is consistent with the surrounding area; that the amendment is consistent with all other provisions in the Plan; and that the City must ensure that any development will not obstruct operations at MacDill. Similarly, the City Community Planning Division staff report noted that MacDill and the South Tampa community have coexisted for sixty-five years; that the predominant land use in the area is residential; that the change is consistent with FLUE Policy A-3.1; that noise attenuation measures will be employed; that the CMU-35 designation continues the land use trend away from light industrial; that the site will not be able to develop to its full potential; and that the change would be consistent with the future development pattern of the area. The map change is also supported by the land use compatibility policies in the AICUZ study for noise contours, as well the FAA noise compatibility guidelines. Finally, the change is consistent with existing policies in the FLUE and Transportation Element. They provide further support for the requested change and the City's determination that the map change is compatible with surrounding uses, including MacDill flight operations. The City reacted appropriately to these data and analyses when it enacted the amendment. The AICUZ is based on standardized data complied from airbases around the world to determine areas of increased accident potential. It did not assess the individual risk nor consider the safety record of MacDill; it did not give consideration to any unique local situations, including the fact that MacDill is located in a fully developed urban area and has coexisted with residential development in the Runway 4 flight path for decades; and it characterized the risk of an aircraft accident as "minute." Because residential development under the map change will be subject to noise attenuation requirements, the new use will be consistent with the AICUZ and FAA guidelines. The JLUS presented four options for residential use within the APZ I, one of which continues the existing policy of allowing ten dwelling units per acre in APA I. Although the committee ultimately recommended that more restrictive measures be implemented, this recommendation was not adopted by the City. Standing alone, the JLUS contains competing data that support a less intense residential classification on the Florida Rock property. But the City has no land use category that allows the site a mixed use with a maximum of six residential units per acre. When taken as a whole, the data and analyses relied upon by the City constitute adequate support for the plan amendment. Accordingly, the Department and Air Force have failed to show by a preponderance of evidence that the plan amendment contravenes Section 163.3177(6)(a), Florida Statutes, or Florida Administrative Code Rules 9J-5.005(2)(a) and 9J- 11.007(1). See, e.g., Geraci, et al. v. Hillsborough County, et al., DOAH Case No. 95-0259GM, 1999 Fla. ENV Lexis 11 at *114-15 (DOAH Oct. 16, 1998, DCA Jan. 12, 1999)(even though the data and analysis may support another classification, a local government is not required to demonstrate that its land use classification choice is perfect, or that the data and analysis support that use to the exclusion of any other classification). The more persuasive evidence supports a finding that the challenged plan amendment is in compliance.
Recommendation RECOMMENDED that the Department of Community Affairs enter a final order determining that the plan amendment adopted by Ordinance No. 2008-145 is in compliance. DONE AND ENTERED this 26th day of August, 2009, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of August, 2009.
Findings Of Fact The Application for power plant site certification was filed by Pinellas County on October 25, 1978. The Applicant proposes to construct a resource recovery facility at which municipal solid wastes will be burned to produce steam-generated electrical energy. The residue from the burning of these wastes will be processed for recovery of metals and other valuable materials. The proposed facility includes a large landfill which will be used for disposal of those portions of the residue not amenable to recovery. In addition, the application includes a directly associated transmission line connecting the proposed facility to Florida Power Corporation's Gandy Substation. The resource recovery plant buildings will be located on approximately 20 acres within Pinellas County's existing Bridgeway Acres Phase I landfill tract. The Phase I landfill site is situated in Northernmost 80 acres of a total of approximately 225 acres just South of 114th Avenue North and West of 28th Street North. Areas of the plant site not previously disturbed by landfilling activities are occupied largely either by pine flatwoods or wet weather ponds. The proposed resource recovery facility will consist of a 50 megawatt steam-electric generating turbine, two 1050 tons-per-day solid waste fired boilers; truck weighing scales; a refuse collection and sewage pit, refuse stoking equipment; magnetic and serrofluid separators; conveyors; a four cell mechanical draft cooling tower utilizing treated sewage effluent; effluent intake and outfall piping and connections; a 161 foot flue gas stack; electro- static precipitators; stormwater retention and treatment ponds; stormwater spray irrigation fields; and sanitary landfill and controlled ditching. A 230 kilovolt transmission line and associated structures will run East, South, and then East of the site for approximately 1 and 1/4 miles. The primary purpose for the proposed facility is to dispose of the county's refuse and trash. There is a clear need for recovery facilities such as that proposed by the Applicant. Moreover, electric system reliability will be increased by the addition of a small generating facility and the cost to the consumer per unit of electricity may be less than that for a similarly sized fossil fuel unit. The Tampa Bay Regional Planning Council stated that the proposed Pinellas County Power Plant and recovery facility was an innovative solution to the complex problem of solid waste management and resource recovery. The Florida Public Service Commission has found that this facility will enhance the electrical reliability of the peninsular grid system and that some savings would be recognized through the use of wastes as fuel rather than coal or oil. The Department of Environmental Regulation has found that construction of the resource recovery facility will permit the closing of current landfills and will reduce the need for future landfill and will in fact serve a recognized need. Primary impacts from site modification will include removal of vegetation and certain animal habitat, replacement of existing surface soils, and additional noise and dust levels. The areas affected, however, have largely been disturbed by human activities previously. It is anticipated that the elimination of putresible waste landfills will reduce the local seagull population. No rare or endangered species have been observed on the site. The reduction of landfill areas is environmentally desirable and area residents, concerned about the presence of landfills near their home, should find the proposed site modification and visual barriers more attractive than the existing landfills. Extensive measures have been incorporated into the proposal and the conditions of certification so as to minimize the environmental impacts from construction and operation. Due to the isolated nature of the proposed site there is very little opportunity for public access during construction and operation. In addition, traffic into the site will be limited and controlled by fencing. The applicant has proposed adequate measures to comply with both State and Federal health and safety requirements. The resource recovery facility is expected to produce the following volumes of water during normal daily operations: Cooling tower blowdown 316 gpm. Boiler blowdown 23 gpm. Cooling tower evaporation and drift 744 gpm. Boiler demineralization background blackflush water 6 gpm. The plant effluents will be discharged to Pinellas Park's South Cross Bayou Sewage Treatment Plant. Any surface water impacts would largely arise from stormwater runoff. Perimeter ditches, a central holding pond, and associated treatment facilities will be used to collect, contain, and treat runoff originating on the site. This collection and treatment system has been planned to be of sufficient size to prevent any stormwater discharge from the site except during periods of extremely heavy rainfall. Groundwater in the vicinity is Class I-B as defined by Section 17- 3.101, Florida Administrative Code. Movement of the shallow aquifer groundwater in the area is generally Northeasterly at a rate of 1 to 10 feet per year. The area of the site is underlain by a clay/marl zone which would tend to slow the vertical migration of leachates. There has previously been an impact on the shallow aquifer groundwater quality in the vicinity of the site due to adjacent landfilling operations and saltwater intrusions. Leaching of the decomposition materials from putrescible wastes has already altered the natural state and quality of the shallow aquifer. Since landfill materials from the resource recovery facility should primarily be boiler residue and non-putrescible wastes it is likely that any groundwater impacts from these new landfill materials will be much less than from previously landfilled putrescible materials. Leachates and drainage will be minimized by allowing water to run off the fill rather than being allowed to percolate through the filled material. Leachate which does form by percolation through an active fill will be accumulated at the low point of the active cell. This accumulation will be pumped directly to the aeration pond and will be contained on site. At no time will raw refuse be deposited in standing water. Wastewater will leave the aeration lagoon and enter two water hyacinth treatment ponds which have been designed to remove nutrients and heavy metals from the runoff waters. Upon leaving the hyacinth ponds, wastewater would be chlorinated for bacteria and virus control and pumped to the land on the Southern portion of the site. Construction activities are expected to produce air pollutants and particulate matter in levels which approximate those generated by the current landfilling activities. During operation, expected stack emissions will include particulate, sulfur dioxide, chlorides, carbon monoxide, and oxides of nitrogen. Odor is not expected to be a problem and control measures have been included in the proposal. An electro-static precipitator has been included for the control of particulate matter. Hydrocarbon emission from the plant will constitute approximately .2 percent of the county's total hydrocarbon emission levels. Due to low temperatures, insignificant quantities of oxides of nitrogen will be emitted. There are no sulfur dioxide emission limitations for incinerators; however, if a sufficient volume of refuse is incinerated, prevention of significant deterioration criteria may be applicable. The Department has conducted a Best Available Control Technology analysis for the resource recovery facility and has proposed a sulfur dioxide emission rate for the facility. During operation, refuse will be sorted for large items or non- combustibles, the remaining refuse will be incinerated. Following combustion, the residue will pass through a resource recovery system designed to extract ferrous and non-ferrous metals. The residue, approximately 2.1 percent by weight of the original raw waste, will be landfilled on site. It is estimated that approximately 1 acre per year will be required for this residue disposal. In the event of a facility shutdown, storage facilities at the processing plant will be sufficient for storage of three to four days of incoming waste. If the plant should remain out of operation beyond three to four days, incoming raw wastes would be landfilled at the site. The facility does not intend to accept hazardous wastes. During and at the conclusion of the site certification hearing, the public was given the opportunity to comment upon the application for site certification. One individual, Arnold Kindt, spoke on behalf on Mainlands Unit #4, a community of homes in the area just Southwest of the proposed facility. Mr. Kindt did not object to construction of the plant, but suggested a committee to anticipate and resolve environmental problems which might arise. The Florida Department of Environmental Regulation, the Public Service Commission, the Division of State Planning and Southwest Florida Water Management District, have all recommended certification of the proposed resource recovery facility subject to conditions. The stipulated conditions are attached hereto as Exhibit 1.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is hereto RECOMMENDED: That a Final order be entered by the Board determining that the proposed site now conforms with existing land use plans and zoning ordinances, and directing the responsible zoning or planning authority to refrain from hereafter changing such land use plans or zoning ordinances so as to affect the proposed site. RECOMMENDED this 12th day of June, 1979, at Tallahassee, Florida. WILLIAM E. WILLIAMS Hearing Officer Division of Administrative Hearings Room 101, Collins Building Gaines and South Adams Street Tallahassee, Florida 32301 COPIES FURNISHED: Robert G. Varner, Jr., Esquire Assistant Pinellas County Attorney 315 Haven Street Clearwater, Florida 33516 Sheri W. Smallwood, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Twin Towers Office Building Tallahassee, Florida 32301 C. Laurence Keesey, Esquire Division of State Planning 530 Carlton Building, Room 335 Tallahassee, Florida 32301 Tom Cone, Esquire and L. M. Blain, Esquire 202 Madison Post Office Box 399 Tampa, Florida 33601 Mr. George Wallace 2165 Country Club Ct. N. St. Petersburg, Florida 33710 Mr. Fred Stiles 4020 80th Avenue N. Pinellas Park, Florida 33565 Hamilton S. Oven, Jr., P.E. Administrator Power Plant Siting, DER 2600 Blair Stone Road Tallahassee, Florida 32301 Mr. D. F. Acenbrack, Director Solid Waster Management Board of Pinellas County Commissioners 315 Haven Street Clearwater, Florida 33516 Barrett G. Johnson, Esquire Public Service Commission 101 E. Gaines Street Tallahassee, Florida 32301
The Issue Whether the decision to reject all bids for Lease No. 800:0187 is illegal, arbitrary, dishonest, or fraudulent under the provisions of Section 120.57(3), Florida Statutes, or violates the terms of the Request for Proposal.
Findings Of Fact Prior to May 17, 1999, the Department issued a RFP for office space seeking to lease approximately 14,420 contiguous square feet of space located in Broward County, Florida. This lease, designated 800:0187 in this record, was to run for a basic term of seven years with three two-year renewal options. The RFP specified the lessor was to provide full services and 60 parking spaces. In response to the RFP, the Petitioner, Sunrise, and Intervenor timely submitted proposals. The space proposed by Petitioner complied with the requirements of the RFP. Additionally, the Petitioner's submittal was well within the Department's acceptable rate range. On May 17, 1999, the Department issued an intended award to Sunrise for lease 800:0187. Sunrise was deemed the lowest responsive bidder. All objections to the award to Sunrise were resolved or withdrawn. For reasons not clearly documented in this record, the Department withdrew its decision to award the lease to Sunrise. The agency action, posted on June 12, 2000, some 13 months after the initial posting, stated Sunrise had not performed and recommended Lauderdale as the second-ranked entity that had responded to the RFP. Both Sunrise and the Intervenor timely filed protests to the proposed award to Lauderdale. The Petitioner filed motions with the Department to dismiss and intervene in those protests. As of the date of the final hearing in the instant case, the Department had not resolved or referred those protests to the Division of Administrative Hearings. Instead, on July 24, 2000, the Department issued a notice stating it would reject all bids for lease 800:0187 and rescind the award to Lauderdale. In reaching this decision, the Department stated it "cannot determine its space needs until after the pending Department reorganization is complete." If the Department was being "reorganized" such reorganization would have been known to the Department on June 12, 2000. No legislative or administrative action was taken to require reorganization between June 12, 2000 and July 24, 2000. The Department determined that its decision of July 24, 2000, rendered the June 12 award to Lauderdale moot. The Petitioner, Sunrise, and Intervenor challenged the agency's decision to reject all bids. Section M of the RFP provides, in pertinent part: The Department reserves the right to reject any and all proposals when such rejection is in the best interest of the State of Florida. Such rejection shall not be arbitrary, but be based on strong justification. (Emphasis in original omitted.) Subsequent to the protests of the rejection of all proposals, Perry Anderson, a regional administrator for the Department whose region encompasses Broward County, drafted a memorandum dated September 22, 2000, to address the number of leases and unit requirements for service areas of Broward County. The proposals set forth in the memorandum have not been resolved. As of the date of the hearing, the Department did not present any definitive statement as to its leasing needs for Broward County or how and why the submittals for lease 800:0187 could not address the agency's need. The Department has not presented documentation for any agency plan or statutory mandate to reorganize or decentralize the office space encompassed by lease 800:0187. If decentralization is required, the Department has presented no studies to determine the location, service areas, or numbers of clients for such offices. Studies for demographics, travel times, accessibility to public transportation, client case loads, or how reorganization would better address such issues have not been presented. Moreover, the Department has not demonstrated how decentralization would be inconsistent with the award of lease space as designated by lease 800:0187. The only justification for the rejection of all proposals for lease 800:0187 was the alleged reorganization of the Department. The Department presented no factual information as to how the "reorganization" related to an emerging philosophy supporting decentralization or improved services to the client population.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Juvenile Justice enter a final order rescinding its decision to reject all proposals for lease 800:0187. DONE AND ENTERED this 27th day of July, 2001, in Tallahassee, Leon County, Florida. ___________________________________ J. D. Parrish 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 July, 2001. COPIES FURNISHED: Brian D. Berkowitz, Esquire Scott Wright, Esquire Office of General Counsel Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 Robert A. Sweetapple, Esquire Sweetapple, Broeker & Varkas 165 East Boca Raton Road Boca Raton, Florida 33432 Daniel H. Thompson, Esquire Berger, Davis & Singerman 215 South Monroe Street Suite 705 Tallahassee, Florida 32301 A. Margaret Hesford, Esquire 5648 West Atlantic Boulevard Margate, Florida 33063 William G. Bankhead, Secretary Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100 Robert N. Sechen, General Counsel Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100
The Issue The issues to be resolved in this proceeding concern whether the Respondent should have a monetary administrative penalty imposed for violations of the statutes and rules cited herein, and whether the Respondent should be required to take corrective actions concerning those alleged violations and pay related investigative costs.
Findings Of Fact The Department is an agency of the State of Florida charged with the duty of protecting Florida's air and resources and administering and enforcing Chapters 373 and 403, Florida Statutes, and the rules promulgated thereunder appearing in Florida Administrative Code, Title 62. The Respondent owned and operated a permitted land clearing debris disposal Facility known as the Ambush Land Clearing Debris Disposal Facility (Facility) located in Escambia County, south of Bankhead Road and approximately one-quarter mile west of the intersection of Bankhead Road and Blue Angel Parkway. The Respondent operates this Facility under Permit No. 0193476-001-SO. The permit is a general permit issued by the Department subject to the requirements of Florida Administrative Code Rule 62-701.803. The Respondent filed his Notification 0f Intent to use a general permit for a land clearing debris Facility with the Department on January 8, 2002. That general permit notification included a design for a stormwater management system. The Respondent operated the Facility under that general permit until its expiration on February 6, 2007. Stormwater is required to be controlled in accordance with part four of Chapter 373, Florida Statutes, and Florida Administrative Code Chapter 62-25. See Fla. Admin. Code R. 62- 701.803(4). The stormwater management system described in the General Permit Notification included the use of a retention pond on adjacent property. The Facility is a three-acre Facility begun as a borrow pit approximately 50 feet deep. Upon issuance of the General Permit, land clearing debris was brought to the pit for disposal. The Department inspected the Facility on 22 occasions, between August 23, 2005 and January 4, 2006. Thereafter on June 15, 2006, the Department issued its NOV alleging that the Respondent had violated the permit and Department rules. It was specifically alleged that the Respondent failed to construct the stormwater management system as required by Florida Administrative Code Rule 62-701.803(4); that he allowed open burning of solid waste in violation of Florida Administrative Code Rule 62-701.300(3); and that he operated the Facility without a trained spotter on duty at the working face, while waste was being disposed of, in violation of Florida Administrative Code Rule 62-701.803(8). On August 7, 2006, the Respondent filed a Petition challenging the NOV. The Respondent denied that the stormwater management system at the Facility was not constructed in accordance with the stormwater management plans submitted with the General Permit Notification. The Petitioner also denied the occurrence of open burning at the Facility and that the Department had incurred expenses of at least $1,000.00. Page 4 of the Engineers report attached to the General Permit Notification states: Stormwater will be controlled via a retention swale and retention pond surrounding the site. The swales and retention pond are sized to accommodate one- half inch volume across the site. A shallow swale on the West boundary will be constructed to allow conveyance of stormwater to a retention pond an the South end of the property. The detail of the retention pond and conveyance swale is shown on Figure 4. Figure 4, attached to the General Permit Notification, includes design drawings for a retention pond measuring 25 feet wide by 500 feet long, designed to hold three feet of water. Figure 4 also includes design drawings for swales measuring five feet wide at the bottom and 17 feet wide at the top, with a three-to- one ratio slope. The Respondent planned to use his neighbor's property for construction of the retention pond. The retention pond was a part of the design submitted with the General Permit notification, depicted in Figure Four, but was never constructed, and the General Permit Notification with attachments does not clearly indicate that the retention pond would be on adjoining property. Mike Stephen is an employee of the Department and has been for 13 years. He is an inspector of solid waste facilities. He inspected the site eight times over a one year period. He established that the site was an initially a borrow pit and over time was filled with land clearing debris and chipped hurricane debris from Hurricane Ivan. As a result the facility, instead of remaining a pit, evolved into a raised grade of about 25 feet above the natural land surface. Thus, the pit has become a knoll. The placement of dirt on the facility, in response to firefighting needs, resulted in the elevation of the facility above the surrounding land surface. This caused stormwater to leave the property rather than to run or peculate through the waste deposited in the original pit. Mr. Stephen reviewed the General Permit Notification submitted by the Respondent to the Department. It describes a stormwater system design consisting of a swale around the northeast and west sides of the property. The swale was designed to be 17 feet wide and 3 feet deep, and to bring the stormwater around the perimeter of the facility to the south end of the property. The conditions of the General Permit Notification, provided for in Florida Administrative Code Rule 62-701.803, require that the stormwater be controlled during the entire life of the facility. The Respondent was present during some of Mr. Stephen's inspections. When the Respondent was present he was told by Mr. Stephen about the violations noted. Some of the inspection reports were given to the Respondent, but most of their communication was verbal. On the dates alleged in Count I, no stormwater management system had been constructed at the facility. At one time the Respondent began constructing a stormwater ditch along the western side of the property, but never finished it. As of September 29, 2005, upon inspection in response to a neighbor's complaint, it was revealed that sediment and stormwater had run off the facility onto a government easement directly west of the facility, as shown by photographs in evidence as Petitioner's Exhibits 9 through 10. The neighbor had complained that stormwater was running onto her property from the facility. Marshall Seymore, has been an employee for the Department for four years, and is the supervisor of the solid waste program for the Department's northwest district. He established that Florida Administrative Code Rule 62-701.804(3) requires a copy of a stormwater permit, or documentation that none is required, to be submitted to the Department before waste can be accepted at such a facility. Cliff Street, is a 17-year employee of the Department. He is the Engineering Supervisor for the Submerged Lands and Environmental Resources Program. He testified as an expert witness on the stormwater violation issued at the Facility. He established that any modification occurring in a Facility after February 1, 1982, requires stormwater treatment. A modification could be an increase in stormwater discharge, an increase in pollutant loading, or changes in points of discharge on a particular site. A landfill would be a modification, if it increases the run-off or increases the pollution from the site. A hole in the ground, or pit, that is created for deposition of demolition or land clearing debris, requires treatment when the landfill debris accumulates and exceeds the natural grade surrounding the facility, resulting in more run-off. The inspection reports and photographs of the site, establish, according to Mr. Street's testimony, that in his professional opinion the sediment that traveled across the government property adjacent to the site resulted from water that traveled across the site. It was thus established, along with the photographs in evidence, taken on September 29, 2005 (Petitioner's Exhibits 9 and 10) that the run-off is occurring from the western slope or southwestern corner of the site. On September 29, 2005, as established by Mr. Street, the site was well above natural grade and run-off was coming from the site. Under those conditions, treatment of the run-off would be required in accordance with Florida Administrative Code Rule Chapter 62-25. Therefore the stormwater management system described in the General Permit Notification documents should have been constructed before September 29, 2005, the point where the debris and associated dirt cover exceeded natural grade. Mr. Street also established that no stormwater management system existed on the site on October 16, 2005, based upon his review of a boundary and topographic survey bearing that date. Stormwater cannot be retained on the site in its current condition and the contours on the survey show that stormwater is able to run off from the entire southwestern quadrant of the property. Open Burning Mike Stephen inspected the Respondent's facility on the dates alleged in Count II in the Notice. He observed flames or smoke at those various times, commencing on August 23, 2005, through January 4, 2006. A photograph from September 6, 2005, and that inspection, shows smoke arising from the site, but also shows that dirt had been placed in an effort to extinguish the fire. Later photographs in evidence for the Petitioner in September through December 2005, show smoke coming from the area of the south slope of the facility. Mr. Stephen acknowledged that the Respondent, at Mr. Stephen's behest, would occasionally put dirt over areas in an effort to extinguish the fire, but usually had to be prompted to do so by Mr. Stephen. Mr. Seymour of the Department also conducted six of the inspections referenced in the Notice. He observed smoke from the northwest corner of the facility upon his November 2, 2005, inspection. He established that those photographs and his observances show that open burning was occurring on that occasion. He testified that either visual flames or smoke is used as a direct indicator of a fire, but that it is common for vapors to emit from these types of facilities and that it could be difficult to establish, just from observed vapor, if there actually is a fire. One means of determining whether waste is burning is to measure the internal temperature. Mr. Seymour stated that studies show that when internal temperatures in a waste facility rise above 160 degrees Fahrenheit, that a chemical reaction or burning is likely taking place, although that is not a certainty. The Department has a policy or guideline, with regard to the corrective action proposed in this case, to the effect that the fire is deemed extinguished when all sub-surface temperatures are below 160 degrees Fahrenheit. This avoids the necessity of digging up the waste to determine, visually, if a fire is occurring. Inserting a probe into the ground to measure temperature is the most economical, simplest way to determine sub-surface temperatures. Mr. Seymour established that the Department, by policy and by rule, has a position that a fire should be extinguished as quickly as possible to lessen the public health risk and the risk that a fire can enlarge as to become dangerous in landfills and other waste disposal facilities. Based upon Mr. Seymour's experience with enforcement of the rules, nothing in rule Florida Administrative Code Rule 62-256.700 allows land clearing debris to be burned at a facility such as the Respondent's. The Respondent testified that Escambia County shut down his site because of the occurrence of a fire. He maintains that he did not ignite the fire and was not aware that anyone had set a fire. He believes that spontaneous combustion could have caused the fire. When he became aware of the fire, he brought equipment to the site and covered the fire with dirt. During the time the pit was on fire the Respondent took between two and three hundred loads of dirt to the site to cover the fire to make efforts to extinguish it. In fact, the dirt cover placed on the site resulted in the elevation of the site being raised to such an extent as to require an operable stormwater management system. Count III The Department alleges in Count III that on December 19, 2005, no trained spotter was on duty on the working face of the waste disposal facility, while trees, tree trunks, and tree limbs were disposed of. The Respondent concedes this and admits to this allegation. Investigative Costs The Department has contended that it has incurred costs of not less than $1,000.00 while investigating this matter. In this regard it adduced evidence that the cost of Mr. Stephen's work is $21.50 per hour and he spent approximately 55 hours making inspections. Mr. Seymore's salary is $26.60 per hour. He spent approximately 30 hours inspecting the facility. This results in a total apparent cost of $1,182.50 for Mr. Stephen's work and $798.00 for Mr. Seymour's work. Although the undersigned has ruled that the Respondent's financial condition is irrelevant to the legal issues presented by the statutes and rules governing this case, some testimony regarding the Respondent's financial condition was allowed on a possibility that it might have relevance on the question of any mitigation of penalties. The Respondent began carrying debris to the site shortly after he received the permit, operating the site in conjunction with his land clearing business. It accepted waste until the middle of 2005. He did not charge a fee for the disposal because he was taking the waste from his own Ambush Land Clearing and Hauling Corporation without charging it any fees. He also accepted between 250,000 and 280,000 cubic yards of debris from FEMA following the destruction cased by Hurricane Ivan. He charged that federal agency $1.00 per cubic yard for disposal of that waste. The Respondent dissolved Ambush Land Clearing and Hauling, Incorporated at the end of 2005, retaining none of that company's assets. He now works for an employer and earns approximately $800.00 gross per week, before taxes, and also owns a Harley Davidson motorcycle. Escambia County Closure Permit The Respondent has applied for a closure permit to Escambia County. He offered evidence apparently in an effort to show that it would be impossible to comply with the Department's NOV as well as the Escambia County ordinance. Mr. Peter Aluotto, is the Director of Planning and Zoning for Escambia County. He testified regarding the County Development Review Committee (DRC) and Escambia County Ordinance 2006-24. Section 82-227(5) of the Escambia County Ordinance prohibits volume reduction at land clearing debris facilities. "Volume Reduction" includes chipping, shredding, or burning of debris. Section 82.236 of the Escambia County Ordinance determines that variances may be granted if the board of adjustment determines that granting such variances will not result in the maintenance or creation of a nuisance. Although he has applied for a closure permit, there is no evidence presented that the Respondent applied for a variance from this ordinance, as for instance to place himself in a position where he could perform grinding of debris material in order to generate revenue. Both the DRC and the Escambia County Waste Department have to collaborate on issuance of a closure permit. Mr. Alleuto does not know what action might be taken on the closure permit application. In any event, his testimony is irrelevant to the corrective action sought by the Department because the Department is not requiring any grinding, or otherwise reduction in volume of debris material. The fact that the Respondent would like to grind debris material in order to generate revenue is irrelevant to actions sought by the NOV and the Department's position in this case. In summary it has been established that open burning occurred at the site and that the Respondent "allowed" it to occur. It has not been established by preponderant evidence that the Respondent actually ignited the materials in question. Moreover, it has been established by preponderant evidence that the Respondent made extensive efforts to extinguish the fire. It is also true that he was somewhat slow to do so, and did so only upon prompting by the Department's personnel. In any event, however slowly he complied, he did cooperate with the Department in making an effort in extinguishing the fire. There is no preponderant evidence to show that the fire is still burning and that it was not extinguished. Additionally, it has been established that the stormwater management system has not been, constructed as represented to the Department in the Notice regarding the General Permit. In fairness to the Respondent, however, the Stormwater Management System was not required to be in place under the rules until the site generated stormwater migrating off the site. That did not occur until the elevation was raised above the surrounding land surface elevation. That in turn, occurred because of the Respondent's efforts to extinguish the fire by hauling numerous truck loads of dirt and placing them on the site, such that it ultimately attained a raised elevation.
The Issue The issue in this case is whether Respondent discriminated against Petitioner in refusing to hire him.
Findings Of Fact On July 24, 1991, Respondent posted a Job Posting for the job of Fire Coordinator at an annual salary of $24,566 to $34,619. The County advertised the job in general runs of the Orlando Sentinel and Tampa Tribune, as well as local newspapers. The application deadline was August 14, 1991. Learning of the job opening, Petitioner submitted an application. Based on background and experience, Petitioner was well qualified for the job. Consistent with County practice, either the County Commission or the County Administrator had appointed a Selection Committee. The purpose of the Selection Committee was to interview qualified applicants, rate the applicants, and forward their scores to the County Commission. Because the Fire Coordinator is a department head, only the County Commission had the authority to hire the person for the job. The Selection Committee included the chief of the Avon Park Fire Department, the chiefs of either a volunteer or another municipal fire department within the County, the County Administrator, the County Personnel Director, and the Director of the County Office of Management and Budget. The Selection Committee chose five persons to interview, including Petitioner. During the interviews, the Personnel Director asked Petitioner about his relationship with the City of Avon Park. Petitioner admitted that he was preparing to file a job discrimination complaint against the City because he believed that he had been unfairly terminated due to some legal problems that his wife had had. The Selection Committee rated the applicants after the interviews. Petitioner rated the highest. He was tied for the highest on the Personnel Director's tally sheet. The Selection Committee then forwarded the three top applicants to the County Commission for further action. These were Petitioner, Mr. Larry Butler, and Mr. Paul Goddard. The County Commission is free to disregard the recommendations and recommence advertising for the position. Expressing some discontent with the selections, the County Commission unanimously voted to do just that when it considered the recommendations on September 3, 1991. The Commission directed that advertisements should be placed locally and in a regional edition of the Tampa Tribune, following which the applicants should be reduced to five and brought to the County Commission for interviews. There is little evidence of the reasoning for the County's action. One Commissioner is a former Mayor of the City of Avon Park, and she may have expressed some reservations about Petitioner and another former employee of the City. In any event, the County, on September 4, 1991, again posted the Job Posting for the Fire Coordinator's job. The ads were run as directed by the County Commission. The application deadline was September 20, 1991, which was a Friday. On this round, the job of determining what applicants were sufficiently qualified to be granted interviews was borne by the County Administrator and the County Personnel Director. Receiving 14 applications, they determined that two of the new applicants were qualified to be interviewed. These persons were Mr. Mike McCann and Mr. Tim Eures, who was the son of an applicant from the prior round. However, others were entitled to interviews due to County custom. One custom was that whenever the County Commission rejects the recommendations of a Selection Committee and readvertises the position, the persons earlier recommended are entitled to be interviewed during the second round. This meant that Petitioner was entitled to an interview, as were the two other persons recommended by the Selection Committee during the first round. In this case, Mr. Goddard affirmatively indicated that he did not want to submit to an interview with the County Commission, and Mr. Butler presumably showed no interest in the interview. The other relevant custom in the County required that current County employees be allowed a full interview when they applied for a job. Mr. McCann was in this category, although he also was sufficiently qualified to earn an interview without regard to his current employment by the County. Also, Mr. Hank Eures, the father of Tim Eures and an unsuccessful candidate the first time, was extended an offer to interview with the County Commission because he was a current County employee. The County Administrator and County Personnel Director decided on Monday, September 23, 1991, that Mr. McCann, Mr. Tim Eures, Petitioner, and Mr. Hank Eures were entitled to interviews with the Board of County Commissioners. Following the custom of setting the interview schedule at its next regularly scheduled Commissioners meeting, the Board, on September 24, chose the date and set aside time for the interviews to take place. It chose Tuesday, October 1, 1991. On September 26, 1991, (September 27 for Mr. Hank Eures), the County mailed letters to each of the persons to be interviewed informing them of the date, time, and location of the interviews. The County Personnel Director normally telephones the candidates and gives them the same information, but it is unclear if he did so, or was able to do so, with respect to Petitioner. Petitioner received the September 26 letter on Saturday, September 28. He had since become employed as a long- distance tractor-trailer operator and was booked for a long haul on October 1. He was unable to find a substitute for this job. On Monday, September 30, Petitioner's wife called a County employee and informed her of Petitioner's scheduling problem. She explained that Petitioner could not attend the interviews and asked that his interview be rescheduled for another date. As is customary with interviews, the County Commission refused to accommodate Petitioner, so the interviews proceeded without him as scheduled. Following the interviews, the Commissioners selected Mr. Tim Eures as the new Fire Coordinator. The record does not permit a determination as to Mr. Tim Eures' relative qualifications as compared to those of Petitioner. There is no evidence that Petitioner failed to be hired for the Fire Coordinator position due either to legal problems that his wife was having at the time or due to the filing of a charge of discrimination against Petitioner's prior employer, the City of Avon Park.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. ENTERED on April 20, 1993, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings on April 20, 1993. APPENDIX Treatment Accorded Proposed Findings of Respondent 1-2: rejected as not findings of fact. 3-5: adopted or adopted in substance. 6: rejected as subordinate. 7: adopted or adopted in substance. 8: rejected as subordinate and recitation of evidence. 9-15 (second sentence): adopted or adopted in substance. 15 (third and fourth sentences)-17: rejected as irrelevant. COPIES FURNISHED: Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4149 Margaret Jones, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4149 Robert H. Grizzard, II P.O. Box 992 Lakeland, FL 33802-0992 J. Ross Macbeth County Attorney Highlands County P.O. Box 1926 Sebring, FL 33871-1926
The Issue Whether Respondent discriminated against Petitioners based on their race in violation of Chapter 760, Florida Statutes (2006) ("Florida Civil Rights Act").
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Fact are made: All Petitioners are African-American males; all were employed by Respondent. Petitioners Alexander, Daniels and West were discharged on September 20, 2006. Petitioner Cole was laid off on August 25, 2006. Respondent, Solid Wall Systems, Inc., is an employer as defined by the Florida Civil Rights Act; it constructs cast-in- place solid concrete wall structures for the production home industry. This construction methodology is typically employed in large residential developments, and the construction "critical path" requires timely completion of each construction progression. For example, if walls are not timely completed, roof truss installation will be delayed, erection equipment will be idle, follow-up subcontractors are delayed, and money is lost. Petitioner, Ralph Alexander, was employed by Respondent in July 2004, as a laborer, being paid $9.00 per hour. He received pay raises and a promotion to leadman during the next several years. At his discharge, he was a leadman being paid $14.00 per hour. Petitioner, Stevie Daniels, was employed by Respondent in March 2004, as a laborer, being paid $9.00 per hour. He received pay raises and a promotion to leadman during the next several years. At his discharge, he was a leadman being paid $13.00 per hour. Petitioner, Ernest West, Jr., was employed by Respondent in October 2004, as a laborer and paid $9.00 per hour. He received pay raises during the next several years. At his discharge, he was being paid $11.00 per hour. Petitioner, Carlos Cole, was hired in September 2003, as a yard helper with Space Coast Truss, a subsidiary of Respondent's corporate owner, being paid $6.50 per hour. In October 2003, he was transferred to Respondent and received $9.00 per hour. He received pay raises and a promotion to leadman during the next several years. At his discharge, on August 25, 2006, he had been promoted to leadman and was being paid $15.00 per hour, but was working as a laborer. On September 11, 15 and 19, 2006, Petitioners Alexander, Daniels and West were "written-up." That is, they were disciplined for failing to follow the specific instructions of supervisors. On September 11, 2006, Petitioners Alexander, Daniels and West were on a "stripping" crew working at Wedgefield in East Orange County. Alexander was advised that the job had to be completed that day, because trusses were scheduled to be installed the following day. Notwithstanding direction to the contrary, the crew left the job without completing the stripping. The time cards of Petitioners Alexander, Daniels and West indicate that these Petitioners "clocked-out" at between 5:24 p.m. and 5:30 p.m. It is between 30 and 45 minutes from the job site and Respondent's yard. Petitioners would have spent several additional minutes cleaning up before "clocking- out." Not only did Petitioners fail to complete the job, they left the job site early. Petitioner Ernest West, Jr., had a part-time job working for Space Coast Cleaning, a janitorial service, from 6:00 p.m. to 9:00 p.m., Monday, Wednesday and Friday. The job was located in Viera approximately 15 to 20 minutes from Respondent's yard. September 11, 2006, was a Monday and a work day for West's part-time job. Petitioner West told Respondent's operations manager that they left the job site so that he could get to his part-time job on time. On September 15, 2006, Petitioners Alexander, Daniels and West were assigned to strip a multi-unit job site in Titusville. The crew was told to complete the stripping before they left the job site. Time cards indicate that Petitioners "clocked-out" between 3:30 p.m. and 4:00 p.m. Petitioners left the job unfinished, because they thought they would be unable to complete the job that day. On September 19, 2006, Petitioners Alexander, Daniels and West were assigned to strip a building at Viera High School. After a building is stripped, crews have standing orders not to leave any "cap" forms on the job site. This is a particular type of form that crews are specifically instructed to return to the main yard immediately after use and re-stock in bins for use on subsequent projects. On this day, Petitioner Alexander called Roy Brock, a field manager, and inquired regarding the "cap" forms. He was instructed to bring all forms to the yard. Brock visited the Viera High School job site after the stripping crew had returned to the yard and found several caps that had been left at the site. He loaded them on his truck and returned them to the yard. As a result of these three incidents, which were deemed acts of insubordination, Petitioners Alexander, Daniels and West were terminated on September 20, 2006. In May, June, and July 2006, the housing construction market suffered a significant decline. This was reflected by Respondent having a profit of $10,000 in May, a profit of $2,000 to $3,000 in June, and a $60,000 loss in July. In August, there was literally "no work." Respondent's employees were being sent home every day because there was no work. As a result of the decline in construction, Vince Heuser, Respondent's operations manager, was directed to lay off employees. Petitioner Cole was among five employees laid off on August 25, 2006. Of the five, three were African-American, one was Caucasian, and one was Hispanic. Seven Hispanic laborers were hired on July 5 and 6, 2006. Respondent had taken over the cast-in-place wall construction portion of two large projects from a subcontractor named "JR." The general contractor/developer, Welch Construction, requested that these seven Hispanic individuals, who had been "JR" employees, and had done all the stripping on these two Welch Construction jobs, be hired to complete the jobs. Hiring these seven individuals to continue to work on the jobs was part of the take-over agreement. In September 2006, three Hispanic laborers were hired. Two were hired to work on "amenity walls" which require a totally different forming process than does the standard solid- wall construction. The third was hired to work on the Welch jobs as he had worked with the "JR" crew previously.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter final orders dismissing the Petitions for Relief for Petitioners Ralph Alexander, Stevie Daniels, Ernest West, Jr., and Carlos Cole. DONE AND ENTERED this 31st day of January, 2008, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 31st day of January, 2008. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Adrienne E. Trent, Esquire Enrique, Smith and Trent, P.L. 836 Executive Lane, Suite 120 Rockledge, Florida 32955 Chelsie J. Roberts, Esquire Ford & Harrison, LLP 300 South Orange Avenue, Suite 1300 Orlando, Florida 32801
Findings Of Fact Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made: DCA is the state land planning agency with the power and duty to exercise general supervision over the administration and enforcement of Chapter 380, Florida Statutes, including Areas of Critical State Concern, and all rules and regulations promulgated thereunder. See, Section 380.031(18), Florida Statutes. The City of Key West is in the Florida Keys Area of Critical State Concern. See, Section 380.0552(3), Florida Statutes and Rule 27F-8, Florida Administrative Code. Since the City is in the Florida Key's Area of Critical State Concern, City ordinances regulating land development do not take effect until DCA approves them "by rule." See, Section 380.0552(9), Florida Statutes. See also, Section 380.05(6), Florida Statutes (which provides that no proposed land development regulation in an Area of Critical State Concern shall become effective until DCA has adopted a rule approving such regulation.) In pertinent part, Section 380.0552, Florida Statutes provides: 380.0552 Florida Keys Area; protection and designation as area of critical state concern.-- PRINCIPLES FOR GUIDING DEVELOPMENT.--State, regional, and local agencies and units of government in the Florida Keys Area shall coordinate their plans and conduct their programs and regulatory activities consistent with the principles for guiding development as set forth in chapter 27F-8, Florida Administrative Code, as amended effective August 23, 1984, which chapter is hereby adopted and incorporated herein by reference. For the purposes of reviewing consistency of the adopted plan or any amendments to that plan with the principles for guiding development and any amendments to the principles, the principles shall be construed as a whole and no specific provision shall be construed or applied in isolation from the other provisions. However, the principles for guiding development as set forth in chapter 27F-8, Florida Administrative Code, as amended effective August 23, 1984, are repealed 18 months from July 1, 1986. After repeal, the following shall be the principles with which any plan amendments must be consistent: To strengthen local government capabilities for managing land use and development so that local government is able to achieve these objectives without the continuation of the area of critical state concern designation. To protect shorelines and marine resources, including mangroves, coral reef formations, seagrass beds, wetlands, fish and wildlife, and their habitat. To protect upland resources, tropical biological communities, freshwater wetlands, native tropical vegetation (for example, hardwood hammocks and pinelands), dune ridges and beaches, wildlife, and their habitat. To ensure the maximum well-being of the Florida Keys and its citizens through sound economic development. To limit the adverse impacts of development on the quality of water throughout the Florida Keys. To enhance natural scenic resources, promote the aesthetic benefits of the natural environment, and ensure that development is compatible with the unique historic character of the Florida Keys. To protect the historical heritage of the Florida Keys. To protect the value, efficiency, cost- effectiveness, and amortized life of existing and proposed major public investments, including: The Florida Keys Aqueduct and water supply facilities; Sewage collection and disposal facilities; Solid waste collection and disposal facilities; Key West Naval Air Station and other military facilities; Transportation facilities; Federal parks wildlife refuges, and marine sanctuaries; State parks, recreation facilities, aquatic preserves, and other publicly owned properties; City electric service and the Florida Keys Co-op; and Other utilities, as appropriate. To limit the adverse impacts of public investments on the environmental resources of the Florida Keys. To make available adequate affordable housing for all sectors of the population of the Florida Keys. To provide adequate alternatives for the protection of public safety and welfare in the event of a natural or man-made disaster and for a post-disaster reconstruction plan. To protect the public health, safety, and welfare of the citizens of the Florida Keys and maintain the Florida Keys as a unique Florida resource. * * * MODIFICATION TO PLANS AND REGULATIONS.--Any land development regulation or element of a local comprehensive plan in the Florida Keys Area may be enacted, amended, or rescinded by a local government, but the enactment, amendment or rescission shall become effective only upon the approval thereof by the state land planning agency. The state land planning agency shall review the proposed change to determine if it is in compliance with the principles for guiding development set forth in chapter 27F-8, Florida Administrative Code, as amended effective August 23, 1984, and shall either approve or reject the requested changes within 60 days of receipt thereof. Further, the state land planning agency, after consulting with the appropriate local government, may, no more often than once a year, recommend to the Administration Commission the enactment, amendment, or rescission of a land development regulation or element of a local comprehensive plan. Within 45 days following the receipt of such recommendation by the state land planning agency, the commission shall reject the recommendation, or accept it with or without modification and adopt it, by rule, including any changes. Any such local development regulation or plan shall be in compliance with the principles for guiding development. (Emphasis supplied.) In sum, any land development regulations adopted by the City must be submitted to DCA for approval or rejection pursuant to Section 380.0552(9). Such regulations become effective when approved by DCA. In evaluating an Ordinance submitted pursuant to Section 380.0552(9), DCA will look to the Principles for Guiding Development found in Section 380.0552(7), Florida Statutes. DCA is directed to approve a proposed ordinance if it is in compliance with the Principles for Guiding Development; conversely, DCA is without authority to approve a proposed amendment which is not in compliance with the Principles for Guiding Development. On September 3, 1991, the City adopted Ordinance 91-25 (the "Ordinance") which provides for a 180 day moratorium on certain development activities in the City. The Ordinance prohibits ...the approval of Community Impact Assessment Statements and site plans for projects falling within the scope of the city's CIAS ordinance, where the proposed density or intensity of use is inconsistent with the permitted density or intensity under the future land use map of the city's pending comprehensive plan or the property is situated in an area designated as coastal high hazard or wetlands on the Future Land Use Map of the City's pending comprehensive land use plan... A building moratorium, such as that set forth in the Ordinance, constitutes a land development regulation as defined in Section 380.031(8), and Rule 28-20.19(4), Florida Administrative Code. Therefore, the moratorium could not take effect until approved by DCA by rule. A Community Impact Assessment Statement ("CIAS"), as defined in Section 34.04, Key West Code, describes expected impacts of proposed development on specified City resources and infrastructure. While a CIAS is not a development order, the City requires a CIAS as a precondition to the granting of a building permit for most large projects in the City. A developer is required to submit a CIAS for a proposed residential or hotel/motel development of ten or more habitable units or a proposed commercial development of 10,000 square feet or more. A CIAS is intended to ensure that the impacts a proposed project will have upon public facilities and the social and economic resources of the community are considered in the planning process and to avoid surprises during the planning process. The City will reject a CIAS that it finds to be incomplete or misleading. The City Commission held its first hearing on the Ordinance on June 18, 1991. At least five public hearings before the City Commission were held prior to the City's adoption of the Ordinance. The 1981 City of Key West Comprehensive Plan (the "Existing Comprehensive Plan") sets forth certain parameters and standards for the issuance of development orders. The Existing Comprehensive Plan has been approved by the Administration Commission in Chapter 28-37, Florida Administrative Code. The City of Key West land development regulations and certain amendments to the Existing Comprehensive Plan have been approved by DCA in Chapter 9J-22, Florida Administrative Code. The City is required by the States's growth management statute, Part II of Chapter 163, Florida Statutes, to submit to DCA a new comprehensive plan. Since the City is in an Area of Critical State Concern, the new comprehensive plan will not take effect until it is approved by DCA by rule. The Existing Comprehensive Plan remains in effect until a new plan is adopted. At the time the Ordinance was adopted, the City was in the process of preparing a new comprehensive plan to guide future development. By adopting the moratorium, the City sought to provide itself with an opportunity to effectively implement a new comprehensive plan. The City submitted a proposed new comprehensive plan (the "Pending Comprehensive Plan") to DCA on December 2, 1991. DCA and the City are currently involved in negotiations over whether the Pending Comprehensive Plan is in compliance with the state's growth management law, Chapter 163, Florida Statutes, and the rules promulgated thereunder, Rule 9J-5, Florida Administrative Code. The Pending Comprehensive Plan was still in the draft stages at the time the Ordinance was adopted. As indicated above, the City adopted the moratorium for projects requiring a CIAS in an effort to ensure that the City would be able to effectively implement a new comprehensive plan. The City is faced with numerous development-related problems which it attempts to address in the Pending Comprehensive Plan. These problems include: Water Quality Water Resources - The City draws all of its water from the Biscayne Aquifer. The water is pumped from wellfields on the mainland in Dade County and is transported through a single pipe to Monroe County to provide water to the Florida Keys population. While there is no immediate problem with the availability of water for the City, the Florida Keys Aqueduct Authority and the South Florida Water Management District (SFWMD) are in the process of preparing a water supply plan for Dade County and the Keys. These agencies recently informed all Monroe County local governments that they are approaching the limit of water that can be supplied from the aquifer and it is expected that there will be limitations on any further increases in consumption and/or consumptive use permits. The City and DCA contend that the moratorium will help the City to effectively analyze and address these issues in its new comprehensive plan. Chapter 4 of the Pending Comprehensive Plan would require the City to develop a plan for potable water resources, including replacement of the aging water main, providing for emergency supplies, and emphasizing the need to conserve water. Sewer System - Sewage treatment in the City of Key West is a serious problem. The treated effluent is currently dumped into the Atlantic Ocean and has been implicated in the degradation of the environmentally sensitive and unique coral reefs. Chapter 4 of the Pending Comprehensive Plan would direct the City to substantially improve its wastewater treatment level of service, prevent system infiltration, fix leaky pipes, and reduce the pollution of the surrounding waters. Stormwater Runoff - The waters surrounding the island of Key West have been designated Outstanding Florida Waters, pursuant to Chapter 403, Florida Statutes. The runoff generated by rains in the City is currently channeled into these waters either directly or via canals. The Existing Comprehensive Plan does not contain extensive guidance regarding stormwater runoff. Chapter 4 of the Pending Comprehensive Plan would direct the City to conduct a half million dollar study over the next two years to examine, develop, and implement a stormwater management plan. Section 4-2.1(d) of the Pending Comprehensive Plan would also require improved levels of service for stormwater runoff. Hurricane Evacuation - The evacuation of people out of the Florida Keys during a hurricane is an important element in the planning process for the City. The Existing Comprehensive Plan does not provide any standards for hurricane evacuation. Chapter 2 of the Pending Comprehensive Plan requires the City of Key West to develop a feasible hurricane evacuation plan and coordinate its implementation with the County. The City has taken no action on this directive to date. A model is being developed within the Monroe County Comprehensive Plan for the safe evacuation of residents from the Florida Keys. The model will include updated information based upon the Pending Comprehensive Plan. The inclusion of new development into the model is complicated. By temporarily limiting new development, the City can provide more certainty to this planning process. Wetlands and Environmental Protection - The Pending Comprehensive Plan seeks to strengthen and clarify the Existing Comprehensive Plan provisions regarding wetlands and habitat protection by reducing densities within wetlands, salt ponds, and coastal high hazard areas and requiring the adoption of amended land development regulations which extensively improve the City's environmental protection requirements. Residential Housing and Conversion to Transient Units - There have been a significant number of conversions from residential to transient units (hotels, motels, and other tourist accommodations) in the City during the last several years. The increase in "transient" persons exacerbates the strain upon public facilities, especially transportation facilities. The Existing Comprehensive Plan offers little protection to residential areas from commercial and transient intrusion. The Future Land Use Element of the Pending Comprehensive Plan attempts to guide and plan the locations of conversions. Transportation - Many roads in the City are currently operating at poor levels of service, including U.S. Highway 1, the main arterial roadway in the City. The City has never had a specific plan to improve the levels of service. The City is required under the growth management statute (Chapter 163) to provide adequate levels of service on the roads within the City. Chapter 2 of the Pending Comprehensive Plan proposes to implement an extensive traffic circulation system over the next twenty years which will include roadway improvements, revised levels of service, and nonmotorized transportation provisions. Solid Waste - Currently, the City's solid waste is disposed at a local landfill. The City's solid waste disposal facility is currently operating under a year old consent order that directs the facility to be closed within three years. The Existing Comprehensive Plan states that the City is to provide adequate public facilities, but does not explain what constitutes "adequate". The Existing Comprehensive Plan does not provide a plan for the impending closure. The Pending Comprehensive Plan would require the City to provide the funding for solid waste disposal improvements. The clear goal of the Ordinance was to delay the approval of certain CIAS applications, site plans and building permits for 180 days while work continued on the Pending Comprehensive Plan. The City contends that the moratorium will help it to effectively implement the policies which it anticipates will be incorporated in the new comprehensive plan when it is finally in place. The Ordinance provided that the 180 day moratorium would begin on the effective date of the administrative rule approving the Ordinance. The City and DCA were concerned that normal administrative rulemaking time periods would defeat the purpose of the Ordinance. Normal rulemaking pursuant to Section 120.54, Florida Statutes, generally takes between 90 to 120 days. Many local governments experience a significant increase in development proposals immediately prior to the adoption of a new comprehensive plan. Many of these proposals are prompted by a fear as to the impact of the new plan and seek to acquire vested rights under the old plan. The City and DCA were concerned that such an increase in development proposals might complicate the planning process by rendering some aspects or assumptions of a new plan moot before the plan could even be adopted. Moratoria are frequently used by local governments in order to complete an effective comprehensive plan without the need for changes. In the year immediately proceeding the adoption of the Pending Comprehensive Plan by the City Commission (from September 1990 through September 1991), the City received seven CIAS applications. No CIAS applications had been received during the year prior. The City contends that many of the 1990/1991 applications were motivated by an attempt to obtain vested development rights. However, no persuasive evidence to support this speculation was presented. The City Commmission did not consider any reports, studies or other data in connection with the enactment of the Ordinance. At the time the Ordinance was adopted, the City Commission did not make any specific determinations that there were any immediate dangers to the public health, safety or welfare of the community nor was the Ordinance enacted as an emergency ordinance. After its adoption by the City Commission, the Ordinance was transmitted to DCA on September 5, 1991 for approval pursuant to Section 380.0552(9), Florida Statutes. The only information transmitted to DCA was a copy of the Ordinance. As indicated above, the City and DCA were concerned that normal administrative rulemaking time periods would defeat the purpose of the City's Ordinance. The City Planner contacted DCA to request approval of the Ordinance by emergency rule. The City Planner and DCA concurred in the conclusion that the purpose of the Ordinance would be defeated if it was not immediately implemented. The City Commission did not specifically ask or authorize the City Planner to request DCA to enact the Ordinance by emergency rule. The City's concerns included, among other things, that the conversions of residential properties to transient tourist accommodations would accelerate during the process of finalizing the Pending Comprehensive Plan. In addition, the City expects that its new comprehensive plan will reexamine the densities in coastal high hazard areas. By adopting a moratorium, the City sought to insure that any new developments will comply with the new densities ultimately adopted. On September 18, 1991, DCA filed the rule packet for the Emergency Rule with the Secretary of State and the Emergency Rule became effective on that date. DCA did not prepare an economic impact statement for the Emergency Rule. The rule packet consisted of: (a) a Certification Of Emergency Rule; (b) the Notice Of Emergency Rule; (c) a Statement Of The Specific Facts And Reasons For Finding An Immediate Danger To The Public Health, Safety And Welfare, (the "Statement of Specific Reasons") and (d) a Statement of the Agency's Reasons for Concluding that the Procedure Used Is Fair under the Circumstances (the "Agency Conclusions"). The Notice of Emergency Rule appeared in the September 27, 1991 edition of the Florida Administrative Weekly. In the Statement of Specific Reasons, DCA concluded that: ...Generally, a [comprehensive] plan revision process stimulates an accelerated rate of permit requests. Accelerated permitting including the acquisition of vested rights during a planning period will severly erode the City's ability to effectively revise and implement the comprehensive plan. Such accelerated development will also lead to further deterioration of current hurricane evacuation clearance time for the City. This action will increase the existing potential for loss of life and injury to person [sic] and property, will cause further deterioration of level [sic] of service on existing roadways and will lead to irreversible environmental degradation. Therefore this rule must be adopted by emergency procedures because of the potential immediate danger to the public health, safety and welfare. In the Agency Conclusions, DCA concluded: The emergency rulemaking is fair because (1) it immediately approves the ordinance as adopted by the City of Key West Commission and (2) normal rulemaking would moot the intent of the adopted ordinance since the City of Key West would be required to continue accepting applications for building permits, site plans, of [CIAS's] covering work projects or both, as set forth in Section 2 of ordinance 91-25 until the Department's rule approving the ordinance becomes effective. DCA's Statement of Specific Reasons was not reviewed or discussed with the City or its planner prior to its preparation. In deciding to promulgate the Emergency Rule, DCA considered the major public facilities and natural resource problems confronting the City and the City's proposed strategy to deal with these problems in the Pending Comprehensive Plan. DCA concluded that an immediate danger to the public health, safety, and welfare currently exists within the City justifying the approval of the Ordinance by emergency rule. The evidence clearly indicates that the City is facing many significant problems from a planning perspective. Petitioner contends, however, that there is no evidence that any of those problems present an "immediate" threat to the public health, safety or welfare. For the reasons set forth in the Conclusions of Law below, this contention is rejected. On October 10, 1991, DCA filed a rule packet for the Proposed Rule with the Secretary of State. The rule packet consisted of the Notice Of Proposed Rule 9J-22.013, the Estimate of Economic Impact on All Affected Persons (the "EIS",) a Statement of the Facts and Circumstances Justifying Proposed Rule 9J-22.013 (the "Statement of Facts"), a summary of the Proposed Rule, a Comparison with Federal Standards, a Statement of Impact on Small Business and the text of the Proposed Rule. The Notice of Proposed Rule 9J-22.013 appeared in the October 18, 1991 edition of the Florida Administrative Weekly. On October 24, 1991, DCA filed a Notice of Change with the Secretary of State, stating that the correct number for the Proposed Rule was 9J-22.014, since 9J-22.013 had already been used. The Notice of Change appeared in the November 1, 1991 edition of the Florida Administrative Weekly. DCA did not consider any appraisals, data, reports or other studies concerning the economic impact that could result from the imposition of a moratorium. Instead, DCA followed the approach it had used in approving prior ordinances enacted by the City and concluded that its role in reviewing the Ordinance for compliance with the Priniciples Guiding Development did not require an examination of the economic impact of the underlying policy decisions reached by the City Commission in adopting the Ordinance. The EIS states that: Costs and benefits will occur as a result of this ordinance and were considered by the City prior to adoption of the ordinance. The City did not provide any information to DCA on the economic impacts of the Ordinance or on the impact of the Ordinance on the value of properties affected by it. The evidence was unclear as to the extent to which the City Commission considered economic impacts in deciding to adopt the Ordinance. Several public hearings were held in connection with the adoption of the Ordinance and DCA assumed that interested parties had an opportunity to express their concerns regarding the economic impact of the Ordinance at these hearings. DCA did not inquire as to the number of projects under review by the City at the time the Ordinance was passed nor did it seek a determination as to whether any projects with vested rights were affected by the Ordinance. The City Planning Department has retained a consultant, as required by the Ordinance, to conduct an economic study of existing conditions and projections for future growth. The purpose of this study is to assist in developing future amendments to the Ordinance. The study is not final and was not considered by the Key West City Commission when the Ordinance was enacted. DCA concluded that the proposed moratorium adopted by the Key West City Commission was consistent with the Principles for Guiding Development. Therefore, DCA concluded that Section 380.0552 required it to approve the Ordinance. Petitioner has not presented any persuasive evidence to establish that the Ordinance is in any way inconsistent with the Principles for Guiding Development. Petitioner owns 6.8 acres of vacant real property on Atlantic Boulevard in the City. He purchased the property in 1974 with the intent to develop it. Petitioner's property is located in an R-2H zoning district. The City's future land use map designates Petitioner's property as multi-family. Petitioner has spent approximately $71,000.00 to hire architects, engineers, surveyors, planners, biologists and attorneys to aid him in preparing to develop the subject property. In 1989, Petitioner submitted applications for a Department of Environmental Regulation Surface Water Management permit, and an Army Corps of Engineers dredge-and-fill permit, but neither of those permits have been issued to date. Generally the City requires a developer to obtain these "higher-order" permits prior to issuing a building permit. Petitioner has never applied for or installed sewer service, water service or any other utility service to the property. Since he acquired the property, Petitioner has not cleared any vegetation on the property except for minor trimming adjacent to the roadway which was required by the City for safety purposes. In June of 1989, the City passed a resolution notifying the Department of Environmental Regulation that it opposed Petitioner's application to place fill upon the property. On April 10, 1991, Petitioner submitted a CIAS to the City for a proposed 96 unit residential development in three buildings on the subject property. Before the Ordinance was enacted, the City Planner prepared a report dated July 3, 1991 reviewing Petitioner's CIAS as required by the CIAS ordinance. In that review, the City Planner concluded: The project is located in the R-2H zoning district and conforms to all provisions of that district, thus requiring no variances or special exceptions. On August 6, 1991, the Key West City Commission considered Petitioner's CIAS. The City Commission refused to approve the Petitioner's CIAS application. Specifically, the City Commission determined that Petitioner's CIAS application was incomplete and that the "submerged land district" designation ("SL") applied to the Petitioner's property as an overlay zoning district because Petitioner's property is located in an area which is deemed to include wetlands and mangroves. The City Commission requested that the CIAS address the "submerged land district" before the CIAS application could be deemed complete. The City Planner was not present at the August 6, 1991 City Commission meeting. The "submerged land district" in Section 35.07(f), City of Key West Code, provides that the density and site alteration of "environmentally sensitive areas including but not limited to wetland communities, mangroves, tropical hardwood hammocks and salt ponds shall be zoned with a maximum density of one (1) unit per acre. Site alteration shall be limited to a maximum of ten percent of the total size." The "submerged land district" overlay zone applies to any parts of the property which fall within the description of "environmentally sensitive areas" in Section 35.07, City of Key West Code. Because there is confusion over the interpretation and applicability of the SL district and because the SL land use district does not appear on the City's official zoning map, it was not considered in the preparation of the July 3 Report. The evidence in this case was inconclusive as to whether Petitioner's property is located in a SL district and/or whether Petitioner's CIAS for his property can be approved under the City regulations in place prior to the adoption of the Ordinance. On August 22, 1991, Petitioner submitted an amendment to the CIAS as well as a Site Plan. The amendment to the CIAS contests the City's conclusion that Petitioner's property should be considered part of a SL district. As set forth above, during this time period, the City had began consideration of the Ordinance. The first hearing on the Ordinance was held on June 18, 1991 and the Ordinance was passed by the City Commission on September 3, 1991. The City Planner notified Petitioner by letter dated October 11, 1991, that his CIAS Site Plan review and approval had been "stayed" because of the enactment of the Ordinance and because of the project's "inconsistencies with the City's Pending Comprehensive Plan." Petitioner requested an exception from the effect of the Ordinance pursuant to the procedure contained in the Ordinance. A hearing was held before the City Commission and the request was denied.
The Issue Pursuant to Section 403.508(2), Florida Statutes, the sole issue for determination in this case is whether the site for the Petitioner’s proposed electrical power plant “is consistent and in compliance with existing land use plans and zoning ordinances.” (All statutory references are to the 2000 codification of the Florida Statutes.)
Findings Of Fact The Petitioner Calpine intends to license, construct, own, and operate a new electrical power plant in the City of Auburndale, Florida. Calpine filed an application with DEP under the PPSA for the proposed electrical power plant, which is known as the Osprey Energy Center or the Osprey Project. The Site for the Osprey Energy Center The site (“Site”) for the Osprey Energy Center is located within the municipal limits of the City of Auburndale, which is in the north-central portion of Polk County, Florida. The Site is approximately 1.5 miles from downtown Auburndale. The Site is approximately 19.5 acres in size. The Site currently consists of an abandoned orange grove, which is overgrown and neglected. The Site has excellent characteristics for its planned use because the Site contains no environmentally sensitive areas, surface water bodies, wetlands, floodplains, threatened or endangered species of plants or wildlife, or historic or archaeological resources. Adjacent to the east side of the Site is the Auburndale Power Plant, a 150 MW natural gas and oil-fired cogeneration facility. The eastern boundary of the Site also is adjacent to Tampa Electric Company’s Recker Substation. Derby Avenue (CR 544A, a two-lane, paved collector road) is adjacent to the north side of the Site. The City of Auburndale’s Memorial Park Cemetery is adjacent to the west side of the Site. The southern boundary of the Site is adjacent to Recker Highway (SR 655, a two-lane, paved collector road). There are several commercial operations on the south side of Recker Highway, including a sand/cement plant, an automobile parts shop, and a storage center. Cutrale Citrus Juices USA, Inc. and Florida Distillers have large industrial facilities located east of the Site. The City of Auburndale’s Allred wastewater treatment plant (“WWTP”) also is located east of the Site. Historically, the area surrounding the Site has been comprised of a mixture of residential, commercial, industrial, and utility uses. However, the general area surrounding the Site is now dominated by industrial and commercial land uses and this land use trend is becoming more homogeneous. Although there are some homes across Derby Avenue and Recker Highway from the Site, they already are impacted by existing development in the area. Polk County planners have recognized this trend in land development patterns and have designated the homes located north of the Site as areas for future development as Business Park Centers. The Site has excellent characteristics for its planned use. The Site is adjacent to an existing electrical power plant that uses the same combined cycle generating technology as the Osprey Project. The Site also is located adjacent to an existing electrical substation. Thus, the proposed use of the Site is nearly identical to the closest adjacent land uses. Potable water, reclaimed water, and wastewater services will be available at the Site from the City of Auburndale. The City’s Allred WWTP is located near the Site. The Recker Substation is adjacent to the Site, so no new electrical transmission lines will need to be built. Description of the Proposed Osprey Project The Osprey Energy Center will involve the construction and operation of a combined cycle, natural gas-fired, electrical power plant. The Osprey Energy Center will generate approximately 527 (nominal) MW under annual average ambient conditions. The Project will include two combustion turbines, two heat recovery steam generators, a steam turbine, exhaust stacks, cooling towers, a treatment and storage system for process water, a treatment system and two retention basins for stormwater, an operations control center, transformers and related switching gear, and other ancillary structures and features. Minimization of Project Impacts The Osprey Project will utilize highly efficient, state-of-the-art design concepts and equipment for the production of electrical power. Every aspect of the construction and operation of the Project has been designed to ensure compliance with all of the applicable land use regulations and to minimize impacts on nearby land uses. Many of the major components of the Project will be located inside an environmental enclosure. The two combustion turbines, the steam turbine, certain water treatment equipment, and some maintenance and operations facilities will be inside a fully-enclosed area. The environmental enclosure will help minimize the impacts of the Project on the surrounding area by reducing ambient sound levels, reducing the amount of contact stormwater generated on the Site, and improving Site aesthetics. In compliance with the City of Auburndale’s landscape regulations, Calpine has prepared and will implement a landscape plan for the Site. The landscape plan will utilize long leaf pine, shumard oak, bald cypress and live oak trees to provide significant visual screening of the Project from adjacent roads and surrounding areas. The landscape plan will include shrubs and ground cover to supplement the proposed arrangement of trees. The Osprey Project will use only natural gas to produce electricity. Natural gas is the cleanest-burning fossil fuel available to generate electricity. A natural gas pipeline will be developed independently and brought to the Site, thus supplementing the natural gas pipelines that are presently available to the Auburndale Power Plant and other nearby industry and businesses. The Osprey Project will not discharge any industrial or domestic wastewater to any surface water or groundwater. Instead, all of the wastewater from the power plant will be discharged to the City’s nearby Allred WWTP for treatment. Treated effluent (reuse water) from the City’s Allred WWTP will be pumped to the Osprey Energy Center for reuse. By using treated effluent, the Project will reduce its use of groundwater. Compatibility With Other Land Uses Because the Osprey Project will use combustion turbines and combined cycle technology to generate electricity, the Project will be more compatible with less intense types of adjacent land uses than a traditional power plant would be. The Project will be more compatible with other land uses because: the Project’s footprint is much smaller than older plants and the entire facility will occupy much less land; (b) the structures used to generate steam and electricity are much smaller and less bulky than older facilities; (c) the Project’s stacks are much smaller than the stacks used at older facilities; (d) the smaller size of the Project allows for the use of an environmental enclosure to minimize sound and other impacts; and (e) the Project is more highly automated than older facilities, thus requiring fewer employees and, as a result, minimizing highway traffic impacts. There are approximately two dozen electrical power plants presently using combustion turbines in combined cycle configuration in Florida. Combustion turbines in combined cycle configuration are currently operated: (a) on the University of Florida’s campus, approximately 800 feet from Shands Hospital; in Walt Disney World, approximately 1400 feet from Cinderella’s Castle in the Magic Kingdom; (c) in Lake Worth, Florida, next to the local high school and within 1/4 mile of downtown Lake Worth; (d) in Umatilla, Florida, between a citrus processing plant and a residential neighborhood; and (e) at the Auburndale Power Plant, immediately adjacent to the Site. These existing facilities demonstrate that a combined cycle power plant can be compatible with less intensive land uses. Existing Land Use Plans and Zoning Ordinances The City of Auburndale fully supports and welcomes the construction of the Project. The City annexed the Site, amended its comprehensive land use plan (“Comprehensive Plan”), and rezoned the Site for the express purpose of allowing the Project to be developed. On February 7, 2000, the City Commission adopted Ordinance No. 995, which annexed the Site into the City from Polk County. The City annexed the Site so that the City could better control the Site’s development. On July 10, 2000, the City Commission adopted Ordinance 999, which amended the future land use designation of the Site under the City’s Comprehensive Plan and future land use map to “Business Park Centers.” On August 28, 2000, the Florida Department of Community Affairs found the City’s designation of the Site for Business Park Centers to be “in compliance” with the requirements of Chapter 163, Part II, Florida Statutes. The City designated the Site for Business Park Centers because, prior to annexation, the Site and the adjacent Auburndale Power Plant were designated “Business Park Center” under Polk County’s comprehensive land use plan. The City’s Comprehensive Plan provides that the City will utilize future land use classifications that are similar to and consistent with the land use designations used by Polk County. Consequently, after the City annexed the Site, the City designated the Site in a manner that was consistent with the County’s prior designation. Further, the City’s designation of the Site as Business Park Centers is consistent with the County’s designation of Business Park Center for the lands located north and east of the Site. For all of these reasons, the Business Park Centers designation for the Site under the City’s Comprehensive Plan is appropriate. Under the City’s Comprehensive Plan, the Business Park Centers designation authorizes light assembly plants as well as warehousing. The activities conducted at the proposed Osprey Energy Center will be consistent and compatible with these types of land uses. Indeed, the existing Auburndale Power Plant operates in a Business Park Center under Polk County’s comprehensive land use plan, thus demonstrating that activities like the ones proposed for the Osprey Project are compatible with the City’s Business Park Centers designation. The City has adopted land development regulations (“LDRs”) that implement the City’s Comprehensive Plan. The City’s LDRs include zoning regulations applicable to this case. On July 10, 2000, the City Commission adopted Ordinance 1000, which changed the zoning classification for the Site to “Light Industrial.” The City’s Light Industrial zoning classification permits light manufacturing, processing, fabricating, storage and warehousing, wholesaling and distribution facilities. The impacts and intensity of land uses associated with the Osprey Project will be comparable to the impacts associated with light manufacturing or processing facilities. Indeed, the Auburndale Power Plant is zoned Light Industrial by Polk County. In contrast to the Light Industrial zoning classification, the City has a Heavy Industrial zoning classification, which allows such uses as chemical plants, pulp and paper mills, and steel mills. A combined cycle, natural gas-fired power plant is smaller and has fewer adverse impacts than the types of uses included in the Heavy Industrial classification. For these reasons, the City’s Light Industrial zoning classification is appropriate for the Osprey Project. The City’s LDRs allow “essential services” to be located in any zoning category if the project is reviewed and approved by the City Commission, and the project is not otherwise prohibited in the applicable zoning category. The City’s definition of “essential services” expressly includes both “structures and uses” for electric facilities. If the City’s LDRs are applied to this case, it is clear that the Osprey Energy Center will provide essential electrical services. The Auburndale City Commission approved the annexation, future land use designation and zoning classification for the Osprey Project. Electrical power plants are not one of the uses prohibited in the City’s Light Industrial zoning category. Thus, the Osprey Project is an allowed and appropriate use in the City’s Business Park Centers land use classification and in the City’s Light Industrial zoning district as an “essential service.” In early 2000, the City of Auburndale’s LDRs included rigorous noise standards that would have been difficult to achieve at the Site for sounds in the high octave ranges. Indeed, the existing ambient noise levels at the Site were not in compliance with the City’s noise regulations. Accordingly, on or about March 31, 2000, a petition for a variance from the City’s noise regulations was filed with the City’s Board of Adjustment. On April 19, 2000, the City’s Board of Adjustment granted a variance for the Osprey Project. The City subsequently repealed its noise standards and replaced them with the Standard Southern Building Code, which the Project can meet. Consequently, a variance for sound is no longer required. Consistency With Land Use Plans and Zoning Ordinances The Site is consistent and in compliance with the City of Auburndale’s comprehensive land use plan. The Site is consistent and in compliance with the City of Auburndale’s LDRs and the applicable zoning classification. Indeed, the City amended its Comprehensive Plan and rezoned the Site specifically to ensure that the Osprey Project would have the appropriate land use designations. The Site is consistent and in compliance with the Central Florida Regional Planning Council’s Regional Plan. The Site also is consistent and in compliance with the State Comprehensive Plan. In the Prehearing Stipulation, the City of Auburndale, Polk County, the Florida Department of Community Affairs, the Central Florida Regional Planning Council, the Florida Department of Environmental Protection, the Florida Department of Transportation, the Florida Public Service Commission, the Florida Fish and Wildlife Conservation Commission and the Southwest Florida Water Management District either agreed with, did not object to, or took no position concerning Calpine’s assertion that the Site is consistent and in compliance with existing land use plans and zoning ordinances. Public Notice of the Land Use Hearing On April 12, 2000, Calpine published a “Notice of Filing of Application for Electrical Power Plant Site Certification” in The Ledger, which is a newspaper of general circulation published in Lakeland, Florida. On April 21, 2000, the Department published a “Notice of Receipt of Application for Power Plant Certification” in the Florida Administrative Weekly. On September 28, 2000, the Administrative Law Judge issued an “Order Granting Continuance and Re-Scheduling Hearing” and served a copy of this Order on all of the parties to this proceeding. The Judge’s Order stated that the Land Use Hearing would be conducted on January 23, 2001. On November 29, 2000, Calpine published a “Notice of Land Use and Zoning Hearing on Proposed Power Plant Facility” in The Ledger. On December 8, 2000, the Department published notice of the Land Use Hearing in the Florida Administrative Weekly. The public notices for the Land Use Hearing satisfy the informational and other requirements set forth in Section 403.5115 and Rules 62-17.280 and 62-17.281(4), Florida Administrative Code. No party to this proceeding or member of the public has alleged that the public notices for the Land Use Hearing were not timely or sufficient.
Conclusions For Petitioner Calpine Construction Finance Company, L.P.: David S. Dee, Esquire Landers & Parsons 310 West College Avenue Tallahassee, Florida 32301 For the Florida Department of Environmental Protection: Scott A. Goorland, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Governor and Cabinet, sitting as the Siting Board, enter a Land Use Final Order in this case finding that the Site of the Osprey Energy Center is consistent and in compliance with the existing land use plans and zoning ordinances. DONE AND ORDERED this 28th day of February, 2001, 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 28th day of February, 2001. COPIES FURNISHED: David S. Dee, Esquire Landers & Parsons 310 West College Avenue Tallahassee, Florida 32301 Scott A. Goorland, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard The Douglas Building, Mail Station 35 Tallahassee, Florida 32399-3000 Steven Palmer, P.E. Department of Environmental Protection Office of Siting Coordination 2600 Blairstone Road, Mail Station 48 Tallahassee, Florida 32399 Cari L. Roth, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Suite 315 Tallahassee, Florida 32399-2100 Sheauching Yu, Esquire Department of Transportation 605 Suwannee Street Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32399-0458
The Issue Whether Respondent committed the unlawful employment practice alleged in the Charge of Discrimination filed with the Florida Commission on Human Relations (FCHR) and, if so, the relief that should be granted.
Findings Of Fact At all relevant times, Petitioners resided in an apartment in Eastwind Apartments, a HUD multifamily development in Marathon, Florida. MHA manages Eastwind Apartments. Monroe County Housing Corporation has an ownership interest in Eastwind Apartments. Ms. Vogt is the housing manager of Eastwind Apartments. Mr. Castillo is the executive director of MHA. The lease between Petitioners and MHA contains the following provision: "The Tenant agrees to permit the Landlord, his/her agents or other persons, when authorized by the Landlord, to enter the unit for the purposes of making reasonable repairs and authorized inspections." On September 18 and October 14, 2009, Ms. Vogt provided notices to all residents of Eastwind Apartments of upcoming inspections. The notices contained the following: ". . . there is still not a pet policy. If you have a pet, make sure it is confined and not loose anywhere in the apartment. The inspector can walk into any room and look around and your pet cannot be loose or locked in a room." On December 2, 2009, a maintenance man reported to Ms. Vogt that he was hesitant to enter the Petitioners' apartment because of the presence of a pit bull dog in the apartment. On December 2, 2009, Ms. Vogt hand-delivered an NOLV to Petitioner Alberto Pis based on the presence of the dog in the apartment. The NOLV instructed Petitioners to remove the dog from the apartment by December 5, 2009. The NOLV was written in English. There was not a Spanish translation of the NOLV. Ms. Vogt is fluent in English, but she is not fluent in Spanish. Mr. Pis could not read the NOLV in English. Mr. Pis became upset when Ms. Vogt asked him to sign that he had received the NOLV. Petitioners allege that Ms. Vogt's demand that Mr. Pis sign for the receipt of the NOLV constituted an act of discrimination. Petitioners have an adult son and an adult daughter who are fluent in Spanish and English. The adult daughter translated the NOLV to her parents on December 2, 2009, after Ms. Vogt had returned to her office. On December 14, 2009, Ms. Vogt hand-delivered a second NOLV to Petitioner Alberto Pis. This NOLV advised that keeping the dog in the apartment was a lease violation. The second NOLV was written in English. There was not a Spanish translation of the second NOLV. At all times relevant, MHA had an employee in the office at Eastwind Apartments who was fluent in Spanish and English. Elio Pis is a student at a school in Miami, but lives in the apartment leased by his parents from time to time. The dog in the apartment belongs to Elio Pis. Elio Pis, acting on behalf of himself and his parents, complained to Mr. Castillo about the NOLVs. At first, Mr. Castillo refused to discuss the matter with Elio Pis because Mr. Castillo thought that Elio Pis resided in Miami, not in the subject apartment. Mr. Castillo discussed the matter with Elio Pis after he learned that Elio Pis resided in the apartment from time to time. Petitioners allege that Mr. Castillo's refusal to promptly investigate their complaints constituted an act of discrimination. On February 8, 2010, Mr. Castillo wrote the following letter to Petitioner Alberto Pis: Following a phone conversation with your son regarding a Lease Violation issued on December 2, 2009, I conducted a review of the incident and actions taken by the Eastwind staff. The review indicates that on December 2nd, maintenance staff attempted to respond to a request for maintenance in your unit (work order) and was scared off by the presence of a dog in the unit. Based on this information, the Housing Manager issued you a lease violation. Additionally, on December 14, 2009, numerous tenants received what was intended to be a courtesy notice but was titled "Lease Violation", one of which you received. This second notice was rescinded on December 17, 2009. With regard to the initial lease violation issued, the Housing Manager perhaps over- reacted out of concern for the safety and well-being of the employee and others. The employee, while relaying the incident to a fellow employee, was noticeably shaken. I have asked the Housing Manager to also rescind the December 2nd Lease Violation. Staff is currently finalizing a revised Pet Policy that will allow for pets at Eastwind Apartments with restrictions and limitations. Residents will be notified of this change as the process is completed. On behalf of the Housing Authority, I apologize for any inconvenience to you and your family. The two NOLVs were rescinded before Petitioners filed their initial Complaint of Discrimination with HUD on March 19, 2010. Petitioners have been allowed to keep the dog in their apartment. Petitioners complained that certain repairs have not been made to their apartment. There was no evidence that similar repairs had been made to apartments rented by non- Hispanic tenants. There was no evidence that the terms and conditions of Petitioners' tenancy at Eastwind Apartments were different from the terms and conditions of any other tenant.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioners' Amended Petition for Relief. DONE AND ENTERED this 14th day of February, 2011, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of Februray, 2011. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Franklin D. Greenman, Esquire Greenman and Manz 5800 Overseas Highway, Gulfside Village, Suite 40 Marathon, Florida 33050 Alberto Pis and Maria Soto 240 Sombrero Beach Road, Apartment A-4 Marathon, Florida 33050
