The Issue The issue to be determined by this Order is whether the Petition for Formal Proceedings filed with the Department of Environmental Protection (DEP) on February 4, 2009, was timely 1/ and, if so, whether Petitioners have standing to challenge the DEP?s issuance of the Minor Modification to FDEP Operation Permit 171331-002-UO for IW-1 under 171331-003-UC (the Permit Modification).
Findings Of Fact The Parties The Conservation Alliance is a Florida not-for-profit corporation in good-standing, with its corporate offices currently located at 5608 Eagle Drive, Fort Pierce, Florida. The Conservation Alliance has approximately 200 members. Elaine Romano is a resident of St. Lucie County, Florida. The DEP is an agency of the State of Florida having jurisdiction for permitting UIC facilities and the waste-streams being discharged to such facilities, pursuant to chapter 403, Florida Statutes, and the rules promulgated thereunder. Pursuant to that authority, the DEP issued the Permit Modification that is the subject of this proceeding. FPUA provides utility service to the City of Fort Pierce, Florida. FPUA owns and operates a Class I industrial injection well (IW-1), discharges to which are the subject of the Permit Modification. Allied owns and operates a chlorine bleach manufacturing facility which produces a brine waste-stream that is proposed for disposal to IW-1. Issuance of the Permit Modification On December 19, 2008, the DEP issued a Notice of Permit, Permit Number 171331-002-UO (FPUA operation permit), which authorized the operation of IW-1 at the Gahn wastewater treatment plant. The Gahn wastewater treatment plant and IW-1 are owned and operated by the FPUA. The FPUA operation permit authorized the disposal of concentrate and water treatment by- product from FPUA?s reverse-osmosis water facility at a permitted rate of 2.8 million gallons per day. FPUA also owns and operates water production wells that serve the City of Fort Pierce potable water supply system. IW-1 was constructed within 500 feet of three of the FPUA production wells, which required FPUA to obtain a variance from setback requirements. On July 17, 2008, prior to the issuance of the FPUA operation permit, Allied submitted an application for a major modification of the FPUA operation permit. The application proposed the disposal to IW-1 of up to 21,600 gallons per day of a brine waste-stream that is a by-product of the production of chlorine bleach. The application cover letter provides that “[w]hile we have been notified that this project is only a Minor Permit Modification, we feel by submitting for a Major Permit Modification that the Department will have the ability to review the application and downgrade the application to a Minor Permit Modification, if needed.” On December 30, 2008, the DEP issued the Permit Modification as a minor modification of the FPUA operation permit. The Permit Modification allowed a maximum of 21,600 gallons of brine to be received at the FPUA facility and disposed of in IW-1. Notice of the Permit Modification On or about September 12, 2008, a paralegal for Ruden McClosky, Lucinda Sparkman, requested information from the DEP regarding the procedure for receiving notification of permit applications and DEP action thereon. Her request was subsequently refined to request notice regarding two permits, those being “injection Well Construction, application #171331- 003,” and the other being “Water-Industrial Wastewater, application #FLA017460-004.” DEP File No. 171331-003 is that pertaining to the Permit Modification. At the time of the request, Ruden McClosky represented Odyssey Manufacturing Company (Odyssey), an economic competitor of Allied.3/ On September 24, 2008, Ms. Sparkman asked to be “put on the distribution list for the URIC permit for Fort Pierce.” From September 24, 2008 through December 15, 2008, Ms. Sparkman made periodic requests for information, and received periodic updates from the DEP. On December 19, 2008, the DEP sent Ms. Sparkman an e- mail indicating that the FPUA operation permit had been issued, and later that same day sent Ms. Sparkman an electronic copy of the permit. On December 19, 2008, Ruden McClosky made a public records request to FPUA for, among other items, records pertaining to the disposal of brine to the Gahn Water Plant underground injection well, and any agreements between FPUA and Allied regarding the disposal of brine. The request was made on behalf of Florida Tire Recycling, Inc. (Florida Tire). On December 22, the DEP sent Ms. Sparkman a copy of the notice of intent for the FPUA operation permit. There is no record evidence of further communication or inquiry between Ruden McClosky and the DEP from December 22, 2008 to January 14, 2009. On January 9, 2009, notice of the Permit Modification was published in the Fort Pierce Tribune. The notice was prepared and publication arranged by counsel for Allied. The published notice provides the information required by rule 62-110.106(7)(d), and stated that any challenge to the Permit Modification was required to be received by DEP within 14 days of publication or, for persons that requested actual notice, within 14 days of receipt of such actual notice. On January 14, 2009, Ms. Sparkman called her contact person at the DEP to inquire about the Permit Modification. That call was not returned. On January 21, 2009, Ms. Sparkman again called the DEP to inquire about the Permit Modification. In response to Ms. Sparkman?s inquiry, the DEP sent Ms. Sparkman an electronic copy of the Permit Modification. Ms. Sparkman made further inquiry on January 21, 2009, as to whether the notice of the Permit Modification had been published in a newspaper. On January 22, 2009, the DEP replied that “[e]verything was noticed as required.” On January 22, 2009, the Fort Pierce Tribune prepared an affidavit of publication of the notice. The affidavit of publication was received by counsel for Allied on January 28, 2009, who sent the affidavit to the DEP by certified mail on January 29, 2009. Alleged Defects in the Notice of Permit Modification Petitioners have alleged a number of procedural defects that they contend render the published notice ineffective to establish a deadline of 14 days from the date of the notice to file a challenge to the Permit Modification. Late Proof of Publication Petitioners allege that Allied filed the proof of publication with the DEP more than seven days from the date of publication, and that delay made such publication ineffective to establish a deadline for filing the petition. Although the proof of publication was provided to the DEP on or shortly after January 29, 2009, the evidence demonstrates that Allied provided the proof of publication to the DEP immediately upon receipt from the Fort Pierce Tribune newspaper. The delay in filing was not within the control of Allied, or anyone else associated with the Permit Modification. As established by rule 62-110.106(9), proof of publication is required by the DEP to provide assurance to the DEP that required notice has, in fact, been published, with the sanction being the delay or denial of the permit. The rule does not suggest that a delay in providing proof of publication to the DEP serves to alter or extend the time for filing a petition. There is little case law construing the effect of a delay in providing proof of publication on the petition rights of a person challenging the proposed agency action. However, the undersigned agrees with, and adopts, the following analysis of the issue provided by Administrative Law Judge P. Michael Ruff: . . . the purpose of requiring an applicant to publish notice of agency action is to give substantially affected persons an opportunity to participate in an administrative proceeding. See Section 403.815, Florida Statutes, and Rule 17- 103.150(4), Florida Administrative Code. Consequently, the crucial element in the Department's publication requirement is that the notice be published to trigger the commencement of the time for affected persons to request a hearing. The requirement that proof of publication be provided to the Department does nothing to affect the rights of third parties, but merely is a technical requirement which allows the Department to determine whether a third party has timely exercised its rights to contest a published notice of intended agency action. If an applicant publishes notice of intended agency action, but fails to timely provide the Department with proof of that publication, the deficiency is one which is easily cured. No harm will occur because the permit will not be issued until proof of publication is received by the Department, in any event, because of Rule 17-103.510(4), Florida Administrative Code. Bio-Tech Tracking Systems, Inc. v. Dep?t of Envtl. Reg., Case No. 90-7760, ¶32 (Fla. DOAH Apr. 3, 1991; Fla. DER May 17, 1991). The filing of the notice beyond the seven-day period in rule 62-110.106(5) was, at most, harmless error, did not adversely affect any rights or remedies available to Petitioners, and does not affect the fairness of this proceeding. Notice Prepared by Counsel Petitioners allege that the notice was prepared by Allied?s counsel, rather than the DEP, and that the notice was therefore ineffective to establish a deadline for filing the petition. Publication of the notice of the Permit Modification was not required, since it was a minor modification. Thus, publication was at Allied?s option. Rule 62-110.106(10)(a) provides, in pertinent part, that: Any applicant or person benefiting from the Department?s action may elect to publish notice of the Department?s intended or proposed action . . . in the manner provided by subsection (7) or (8) above. Upon presentation of proof of publication to the Department before final agency action, any person who has elected to publish such notice shall be entitled to the same benefits under this rule as a person who is required to publish notice. The most logical construction of rule 62-110.106 is that the DEP is responsible for preparing required notices pursuant to rule 62-110.106(7)(c), but that non-required notices may be prepared and published at the applicant?s or beneficiary?s option without direct DEP involvement. In this case, the notice was prepared by an authorized agent of the corporate “person” that benefitted from the Permit Modification. The more salient point regarding the preparation of the notice is whether it contained all of the information required by rule. The evidence demonstrates that it did, and that the notice was sufficient to provide a meaningful and complete point of entry to the public of the Permit Modification and the rights attendant thereto. The fact that the notice was prepared by Allied?s counsel was, at most, harmless error, did not adversely affect any rights or remedies available to Petitioners, and does not affect the fairness of this proceeding. Lack of Actual Notice Petitioners allege error in the notice process because actual notice of the Permit Modification was not provided to Petitioners. The basis for the alleged deficiency was that Mr. Stinnette had, in 2003, asked to be placed on the DEP?s UIC mailing list, but did not receive the notice of the Permit Modification. Rule 62-110.106(2) provides that published notice establishes the point of entry for the public to challenge proposed agency action “except for persons entitled to written notice personally or by mail under Section 120.60(3), Florida Statutes, or any other statute.” Section 120.60(3) provides that a notice of proposed agency action shall be mailed “to each person who has made a written request for notice of agency action.” The preponderance of the evidence demonstrates that Mr. Stinnette was acting solely as an agent of Indian Riverkeeper when he requested to be placed on the UIC mailing list. He was not requesting notices in his personal capacity, or as an agent of the Conservation Alliance or Ms. Romano. Thus, Indian Riverkeeper was entitled to notice of the Permit Modification. Indian Riverkeeper is not a party to this proceeding. The undersigned is not willing to attribute a request for actual notice to any person other than the person requesting such notice. The DEP?s failure to provide written notice of the Permit Modification to Indian Riverkeeper did not adversely affect any rights or remedies available to the Conservation Alliance or Ms. Romano, and does not affect the fairness of this proceeding. Lack of Information Pursuant to Rule 62-528.315(7) Finally, Petitioners argue that the published notice was ineffective because it did not include the name, address, and telephone number of a DEP contact person, citing rule 62- 528.315(7)(d). The provision cited by Petitioners involves DEP notices that are required when the DEP has prepared a draft permit, draft consent order, or has scheduled a public meeting as identified in rule 62-528.315(1). The notice requirement in rule 62-528.315(7) does not apply to a notice of proposed agency action, which is governed by rule 62-528.315(10), and which provides that: “[a]fter the conclusion of the public comment period described in Rule 62-528.321, F.A.C., and after the conclusion of a public meeting (if any) described in Rule 62- 528.325, F.A.C., the applicant shall publish public notice of the proposed agency action including the availability of an administrative hearing under Sections 120.569 and 120.57, F.S. This public notice shall follow the procedure described in subsection 62-110.106(7), F.A.C. (emphasis added). The published notice of the Permit Modification was consistent with the notice described in rule 62-110.106(7), and therefore complied with rule 62-528.315(10). For the reasons set forth herein, there were no defects in the published notice of proposed agency action that serve to minimize the effect of that published notice on the time for filing a petition challenging the Permit Modification, that adversely affect any rights or remedies available to the Conservation Alliance or Ms. Romano, or that affect the fairness of this proceeding. Representation of Petitioners by Ruden McClosky Petitioners were not represented by Ruden McClosky at the time Ruden McClosky requested actual notice of any DEP agency action regarding FPUA. Petitioners were not represented by Ruden McClosky at the time Ruden McClosky requested actual notice of any DEP agency action regarding Allied. The parties stipulated that an attorney-client relationship was formed between the Petitioners and Ruden McClosky on or after January 1, 2009. No further specificity was stipulated. On February 3, 2009, Ruden McClosky sent an engagement letter to the Conservation Alliance regarding governmental and administrative challenges to the Permit Modification. The engagement was accepted by Mr. Stinnette on behalf of the Conservation Alliance on February 4, 2009. The Petition for Formal Proceedings, which named the Conservation Alliance as a party, was filed with the DEP on February 4, 2009. On February 10, 2009, Ruden McClosky sent an engagement letter to Ms. Romano regarding governmental and administrative challenges to the Permit Modification. There is no evidence that the engagement was accepted by Ms. Romano. Ms. Romano testified that she has never spoken or corresponded with anyone from Ruden McClosky, and had no knowledge that she was being represented by Ruden McClosky. Ms. Romano had no input in drafting any of the petitions filed on her behalf, and had no recollection of having ever read the petitions. The Amended Petition for Formal Proceedings, which named Ms. Romano as a party, was filed with the DEP on February 12, 2009. Both of the Ruden McClosky engagement letters reference an “Other Client” that had an interest in challenging the Permit Modification, which “Other Client” would be responsible for paying all fees and costs, and would be involved in the approval of all work performed by Ruden McClosky. The parties stipulated that the “Other Client” was Odyssey. The date of an engagement letter is not dispositive as to the date on which an attorney-client relationship is established. It is, however, evidence that can be assessed with other evidence to draw a conclusion as to the date that the relationship commenced. The preponderance of the evidence demonstrates that requests for notice made prior to January 21, 2009, regarding the FPUA operation permit and the Permit Modification that is the subject of this proceeding were made on behalf of Odyssey or Florida Tire, existing clients of Ruden McClosky. The preponderance of the evidence leads the undersigned to find that Ruden McCloskey commenced its representation of the Conservation Alliance with regard to the instant case no earlier than January 21, 2009, the date on which Ruden McClosky received notice that the Permit Modification had been issued. The preponderance of the evidence leads the undersigned to find that Ruden McCloskey commenced its representation of Ms. Romano with regard to the instant case after January 21, 2009, if at all. Filing of the Petitions The 14th day after publication of the notice of the Permit Modification fell on January 23, 2009. On February 4, 2009, the initial Petition for Formal Proceedings was filed challenging the DEP issuance of the Permit Modification. The Petition named the Conservation Alliance as a party. On February 12, 2009, an Amended Petition for Formal Proceedings was filed that, among other things, added Ms. Romano as a party. Allegations of Standing - Conservation Alliance The Conservation Alliance is a non-profit, Florida corporation incorporated in 1985. It has at least 100 members that reside in St. Lucie County. It was formed for the general purpose of protecting the “water, soil, air, native flora and fauna,” and thus the environment of St. Lucie County. In the Petition for Formal Proceedings, as it has been amended, the Conservation Alliance made specific allegations as to how the issuance of the Permit Modification may affect its substantial interests. Those allegations are related, first, to the effect of the Permit Modification on the FPUA public water supply that serves members of the Conservation Alliance and, second, to the effect of the Permit Modification on the ability of the members to recreate and enjoy the waters of St. Lucie County. FPUA Water Service In its Second Amended Petition for Formal Proceedings, the Conservation Alliance alleged that “[m]embers of the Alliance own real property or otherwise reside within the service area of FPUA, and are, in fact, serviced by FPUA.” As a result, the members “will be adversely affected by the injection of the Allied waste stream into IW-1, which is located within 500 feet of three potable water supply sources, from which . . . Romano and the Alliance?s members are provided with potable water,” resulting in “a potential for those contaminants and hazardous materials to get into Petitioners? source of potable water.” Mr. Brady, the Conservation Alliance?s president, does not receive water service from the FPUA. Mr. Brady did not know how many members of the Conservation Alliance received water service from the FPUA. Persons living in unincorporated areas of Fort Pierce do not receive potable water from the FPUA. A mailing address of “Fort Pierce” does not mean that the person lives in the incorporated City of Fort Pierce. Mr. Brady “assumed” many of the members lived in the City of Fort Pierce, but offered no admissible, non-hearsay evidence of any kind to support that assumption. Mr. Stinnette testified that he was “confident that we have members that receive water from [FPUA]” but was not able to quantify the number of said members. As with Mr. Brady, Mr. Stinnette offered no admissible, non-hearsay evidence of any kind to support his belief. Recreational and Environmental Interests In its Second Amended Petition for Formal Proceedings, the Conservation Alliance alleged that “. . . Romano and the Alliance?s members utilize and protect the waters of St. Lucie County. Petitioners? recreational and environmental interests will be adversely affected if the Allied waste stream leaves the injection well area and flows into the rivers, streams, and or ocean.” Mr. Brady understood that one member of the Conservation Alliance, George Jones, fished in the C-24 canal, although Mr. Brady had not personally fished there for 25 years. Mr. Brady otherwise provided no evidence of the extent to which members used or enjoyed the waters in or around St. Lucie County. Mr. Stinnette has recreated in various water bodies that are tributaries of the Indian River Lagoon system. He indicated that he had engaged in recreational activities in and on the waters of St. Lucie County with “dozens” of people over the past 16 years, some of whom were members of the Conservation Alliance. There was no evidence offered as to how many of those persons were members of the Conservation Alliance, as opposed to members of other organizations or of no organization at all, or whether they were current members during the period relevant to this proceeding. Mr. Stinnette testified that the previously mentioned Mr. Jones said that he kayaked in the waters of St. Lucie County but, as to the recreational activities of other members, testified that “I don't know, I don't keep up with their day-to-day activities to that extent.” Although Mr. Jones testified at the hearing, he provided no information as to the nature or extent of his recreational uses of the waters of St. Lucie County. The only evidence of Mr. Jones? use of the waters of St. Lucie County is hearsay. Thus, the only finding that can be made as to the recreational use of the waters of St. Lucie County by current members of the Conservation Alliance is limited to the recreational use by a single member, Mr. Stinnette. Petitioner, Elaine Romano Ms. Romano is a member of the Conservation Alliance. The allegations regarding Ms. Romano?s substantial interests in this proceeding were the same as those of the Conservation Alliance as set forth above. FPUA Water Service Ms. Romano has her primary residence at 3436 Roselawn Boulevard, Fort Pierce, Florida. Her residence is not served by FPUA. Ms. Romano is the executor of the estate of her mother, Marion Scherer. The estate owns a residence at 1903 Royal Palm Drive, Fort Pierce, Florida that is currently vacant. That residence is served by FPUA. The estate is not a party to this proceeding. Recreational and Environmental Interests Ms. Romano attends certain meetings and functions of the Conservation Alliance, but offered no testimony of her use or enjoyment of any natural resources that could be affected by the Permit Modification. In that regard, her interest in this case was precipitated by a desire to support her mother?s interest in ecology.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED that Respondent, Department of Environmental Protection, enter a final order dismissing the Petition for Formal Proceeding as amended. DONE AND ENTERED this 24th day of May, 2013, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 24th day of May, 2013.
The Issue Appellant raises three issues on appeal: (1) whether the Commission departed from the essential requirements of the law by determining that VOF's proposed swimming pool is not part of a "resort hotel"; (2) whether the Commission departed from the essential requirements of the law by determining that VOF's proposed swimming pool is an inappropriate use in the Destination Resort (DR) zoning district; and (3) whether the Commission denied VOF due process by allowing Intervenors to present evidence at the Commission hearing on July 13, 2011. For the reasons expressed below, the Commission did not depart from the essential requirements of the law when it rendered Resolution No. P29-11, and it did not deny VOF due process during its hearing.
Findings Of Fact By application filed July 24, 1991, Petitioner requested a permit to erect a sign on the north side of, and visible from, U.S. 192. In this area, U.S. 192, which is a federal-aid primary highway, is located in unincorporated Osceola County. The sign would be within 660 feet of the right-of-way of U.S. 192. The property on which the sign would be located is less than one acre in the center of an area of existing roadside tourist-commercial uses. The property is about 1 1/2 miles west of Walt Disney World. Immediately west of the property is a waterslide that is part of the Watermania tourist attraction that extends north behind the subject parcel. West of the waterslide is a Shoney's restaurant and hotel. Immediately east of the subject parcel is a small vacant parcel. Immediately east of the vacant parcel is a HoJo's motel and International House of Pancakes. A gift shop and another motel are east of the International House of Pancakes, and a Racetrac gas station is east of the gift shop and motel. A frontage road serves these facilities, including the subject parcel. These facilities, which are generally recognized by commercial uses by zoning authorities in the state, constitute three or more distinct commercial uses within 1600 feet of the subject parcel. Osceola County issued a building permit for the sign on July 30, 1991. However, Respondent rejected the application for a sign permit by memorandum dated July 24, 1991, because of, in addition to minor omissions since resolved, "underlying zoning of agricultural (unpermitted zoning)." In the comprehensive plan adopted prior to the application, Osceola County designated the subject parcel, as well as vast expanses of land all around the parcel, as commercial. Prior to adoption of the plan, zoning for the property was Tourist Service Center overlaid on an Agricultural Conservation zoning district. Under zoning regulations, the Tourist Service Center overlay allows numerous conditional uses, such as motels, hotels, restaurants, convention facilities, convenience stores, shopping centers, gas stations, and tourist attractions. This zoning has not been changed since the adoption of the plan. Osceola County adopted the Tourist Service Center overlay in 1972 when it had no tourist-oriented zoning classification. The Tourist Service Center overlay, which operates similar to a Planned Development overlay, is placed over land whose underlying zoning classification is Agricultural Conservation. This is not a case in which a special zoning classification, such as Planned Development, has been overlaid upon an underlying classification, such as Agriculture, without any development yet exploiting the zoning overlay. In this case, tourist-commercial development has occupied the immediately surrounding land, of which the subject parcel is a part.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Transportation enter a Final Order granting the subject sign permit. ENTERED this 28th day of January, 1992, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of January, 1992. COPIES FURNISHED: Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0450 ATTN: Eleanor F. Turner, M.S. 58 Thornton J. Williams, General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458 Attorney John E. McIntee 241 Ruby Ave., Suite A Kissimmee, FL 34741 Vernon L. Whittier, Jr. Assistant General Counsel Department of Transportation 605 Suwanee Street Tallahassee, FL 32399-0458
The Issue Appellant raises three issues on appeal: (1) whether the findings in the Resolution are supported by competent substantial evidence; (2) whether the Commission departed from the essential requirements of the law by failing to apply the correct law in evaluating the application; and (3) whether due process violations occurred during the staff review and Commission hearing process.
The Issue Appellants raise five issues on appeal: (1) that the Commission erred in approving the Application despite there being no competent substantial evidence of LKCCC’s financial capacity to develop the property; (2) that the Commission erred in approving the Application despite there being no competent substantial evidence that the project will meet the “local needs” requirement of the MCC; (3) that the Commission’s Public Meeting denied Appellants due process, and was fundamentally unfair; (4) that the Commission erred in approving the Application despite the failure of the project to comply with the “phasing and aggregation” requirements of the MCC for reserved outparcels; and (5) that the Commission erred in approving the Application despite the failure of the project to comply with, and the project’s inconsistency with, the Lower Keys Livable CommuniKeys Plan (“CommuniKeys Plan”).
Findings Of Fact The Respondent, C-Sand Company, was issued permit number AE315-10 on May 8, 1981. This permit authorized the erection of a sign to be located approximately 1.8 miles west of SR 267 in Gadsden County, Florida. This location is in an unzoned area and the permit was granted because of its proximity to a nearby commercial activity known as Imperial Nurseries. Prior to submitting an application for this permit to the Department, the owner of the Respondent company contacted the Department's inspectors in the Chipley district office to determine where a sign could be legally erected. He did this in order to locate a site which would be permittable before entering into a lease on the property. The Department's district supervisor met the Respondent's owner in April of 1981 in Quincy. The two of them drove I-10 for a couple of hours looking for a sign site which would be permittable. The Department's district supervisor informed the Respondent that only two locations could be issued a permit, one of these being the site which is the subject of this proceeding. Based upon this representation, the Respondent entered into a lease for this site, subject to issuance by the Department of a permit to erect a sign thereon. After all of this had transpired, on May 4, 1981, the Respondent completed the permit application and submitted it to the Department. Prior to the Department's issuance of the subject permit, one of its inspectors whose duty is to observe a proposed sign site and determine if it is as represented in the application and if it meets the requirements of the statutes and rules, field inspected the proposed site of the subject sign. Based on this inspection he recommended the issuance of the permit upon his determination that this area was unzoned commercial, that the sign site was within 800 feet of a commercial activity known as Imperial Nurseries, and that this commercial activity was within 660 feet of the right of way of I-10, and visible from the main traveled way of I-10. There is sufficient credible evidence in the record of this proceeding to support a finding of fact that the subject area was as the field inspector found it to be. The area in question is rural in nature and generally suitable for agricultural activities. However, the business being conducted by Imperial Nurseries in 1981 was the growing of ornamental evergreens primarily for distribution in Northern markets. These ornamental evergreens were grown in containers on top of the ground, and shipped by truck. The cuttings were grown, then rooted, and planted in containers until mature. Between 1,500-2,000 yards of potting material was hauled in by truck each year from Tennessee, Georgia and Canada. This material consists of pine bark, peat moss and sand, which is mixed on the premises. The entire nursery is irrigated by an impact sprinkler system. There are 260 acres under irrigation. Approximately 1,400 tons of liquid fertilizer are mixed each year, and delivered via this irrigation system. There has been a weather shed on the property since before 1981, and this is within 660 feet from I-10. Portable toilets are located in various places on the property to accommodate the nursery employees. Beyond 660 feet from I-10 is a potting station and a loading area. Further away is an office building, two lunch rooms, and two storage buildings for fertilizer and peat moss. Nevertheless, parts of the overall operation of conducting the business of this nursery are situated 660 feet and less from I-10. Imperial Nursery ships its mature evergreens via truckers and brokers. Nursery employees assemble the shipments in the field, and they are brought to a central location for loading onto the trucks. These trucks are 40-45 foot refrigerated tractor-trailers. Approximately 400 truck loads of cuttings are shipped each year to an area from Washington D.C. to Canada The operation of Imperial Nurseries is the same now as it was in 1981. The field inspector's recommendation to approve the site as a permittable location was joined in by his supervisor after the supervisor had also conducted a field inspection of the area. Both of them based their approvals on the weather shed, the portable toilets, and the activities observed by them such as the employees moving the potted plants around, the loading and unloading of material taking place, and the employee activity throughout the area but particularly in the vicinity of the weather shed. The site where the Respondent proposed to erect his sign was within 800 feet of the various locations on the Imperial Nurseries property where its loading, unloading, or other activities took place. The assertion of the Respondent on his sign permit application that the proposed location was within 800 feet of a business was not false or misleading. The Department's inspector and his supervisor concurred in this characterization of the area. Neither has the Respondent violated any of the provisions of Chapter 479, Florida Statutes. All of the facts were set forth on his permit application, and these facts were verified by the Department after the area was inspected to determine their accuracy. The policy of the Department leaves the determination of what is and what is not an unzoned commercial area to the field inspector, with the approval of his supervisors. In this case, the determination was made that the activities of Imperial Nurseries were commercial in nature, and the permits were granted on the basis of this determination, not on the representation of the Respondent. In the summer of 1984, the subject site was inspected by the Department's Right-of-Way Administrator, who determined that the business being conducted by Imperial Nurseries was agricultural, and not commercial in nature. Although Imperial Nurseries has an agricultural exemption on its property and its employees are classified as agricultural for withholding tax purposes, the facts support a finding that Imperial Nurseries is a commercial activity. There is no statutory definition of "agricultural" and the Department has not defined the term by rule. Webster's New Twentieth Century Dictionary, Unabridged, Second Edition, defines "agriculture" as the cultivation of the ground, the art of preparing the soil, the tillage or the culture of the earth. These are not the activities of Imperial Nurseries. Pursuant to the issuance of the sign permit by the Department, the Respondent's lease on the property where the sign was erected became effective, and this lease continues to date.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department's violation notice seeking removal of the Respondent's sign on the north side of I-10, approximately 1.8 miles west of S.R. 267 in Gadsden County, Florida, be dismissed; and that permit number AE 315-10 remain in effect as a permit for a non-conforming sign. THIS RECOMMENDED ORDER entered this 10 day of July, 1985 in Tallahassee, Leon County, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of July, 1985.
The Issue Whether the Planning Commission deviated from essential requirements of law in denying Appellant's application for a special use permit to operate a car rental agency at 2576 Harn Boulevard, Clearwater, Florida.
Findings Of Fact Manual Kastrenakes, d/b/a Pinellas Rent-A-Car, Appellant, purchased the property which is the subject of this appeal in 1989. Prior to this purchase, the property was the site of a Farm Store, which has been vacated. Appellant also owns a filling station in the vicinity of this property which is legally operated and is in compliance with all zoning requirements. The property is zoned CH (highway commercial). Within Highway Commercial Districts, outdoor retail sales, displays and/or storage are permitted as conditional uses. Section 135.129(11), City of Clearwater Land Development Code. Objections to the granting of this conditional use permit come from residents of multifamily residential buildings adjacent to and west of the property in issue. Many of those residents are retired and/or infirm and contend they will be disturbed by the operation of a rental car business "in their back yard." To counter some of these objections, Appellant agreed to conditions being imposed on this permit limiting hours of operation, lighting, paving, buffer zones, and parking. Protestants also contend that operating the business would depreciate the value of their property, but no credible evidence was presented to support this position. Appellant has further agreed that disabled or wrecked vehicles will not be stored on this property, and only fully operable rental automobiles will be stored and/or displayed on this property.
Findings Of Fact On October 14, 1994, Jonathan O. and Merrill S. Hanke, by their representative John A. Skicewicz, P.A., a registered real estate broker, submitted, for consideration at the October 18, 1994 meeting of the City's Planning and Zoning Board, (Board), a conditional use request to operate a vehicle service facility at property located at 1139 Eldridge Street in Clearwater. Though Mr. Skicewicz indicated at hearing that he had the Hanke's authorization to file the original application, no indication of that appeared on the document, nor was any authorization ever found in the records kept by the City. Nonetheless, an authorization form accompanies the amended application, which was accepted by the City and which was the application considered and approved by the Board. As is normal practice, the application had been, before the Board action, submitted to the City's planning staff which, upon review, recommended approval subject to several conditions. The special conditions limited the work area to five service bays, prohibited any auto service work from being done outside the building, prohibited outside storage of materials, mandated provision of adequate dumpster service, limited hours of operation to 7:00 AM to 6:00 PM on Mondays through Saturday and required compliance with Section 41.053(30) of the City Land Development Code with regard to vehicle service uses. At its meeting on October 18, 1994, the Board granted the conditional use permit upon conditions consistent with those recommended by the City staff, with the exception that no limitation on hours of operation was imposed. The Appellant did not object to the permit at the Board meeting because, it is represented, the owner of the company was travelling at the time the notification letter from the City came, and the matter was thereafter overlooked. The Board's approval was appealed on October 28, 1994 by Werner- Donaldson Moving Services, Inc., (WD), which operates a moving and storage facility on the property adjoining the subject property on either side. To the east is a warehouse storing household goods. The Permittee's building is approximately 1 - 2 feet in from the west property line and approximately 30 feet in from the east property line, except for a loading dock and small 30 by 30 foot structure which extends almost to that line approximately 48 feet in from Eldridge Street. The property in issue was formerly used as a millworking operation which manufactured wooden moldings and decorative pieces, employing 4 to 5 individuals. At that time, the parking area, encompassing 32 spaces, was greater than that which was needed for employee parking. Five of the spaces now would be in front of the office area; twelve in the shell area in front of the smaller building to the east; eight behind the small building to the east and in from Maple Street; and seven more in back of the building in from Maple Street. WD contends that this parking configuration would result in cars being required to back out into both Eldridge and Maple Streets, which would constitute a traffic hazard because of the significant number of large tractor trailer trucks which come to its facility each day. This would be compounded by the difficult configuration of the building and the support posts inside which would necessitate vehicles having to back out into the street to be moved around for work. The roof on the building in question is made of metal over wood beams. Mr. DeRoy, the WD comptroller, believes this type of construction would be inconsistent with the flame hazards of automobile repair work. Though the adjacent WD buildings are not constructed of wood, Mr. DeRoy nonetheless considers there to be a substantial fire risk due to those factors. Eldridge and Maple Streets are dead end streets. There is a day care center at the end of one of them. WD asserts that most of the businesses in the area are warehouses, a National Guard armory, and an electric company substation. Its representative contends that the neighborhood is quiet, and there is a residential area to the south. There are no other automobile repair shops in the neighborhood, and Mr. DeRoy, for WD, contends the proposed use of the property in issue would not be compatible with the neighborhood. Mr. DeRoy claims that adding an auto repair shop at the instant location would decrease WD's property values as it would be an eyesore to the community. No independent evidence of this was presented, however. Though there are no auto repair shops on either Maple or Eldridge Streets in the two blocks east of N. Greenwood Avenue, the immediate area in question, there are at least five such installations within one block west of Greenwood and north of Maple. In addition, there is a machine shop, a cabinet shop, a hardware concern, two lumber businesses and a fuel and oil distributor, among others. Clearly, the area is not residential. It is classified as limited industrial, which includes vehicle service. When the application was brought for evaluation, noise was a factor considered but only as it related to the residential area to the south. Because of that, one staff agency recommended the inclusion of limited hours of operation in the permit. No one from the area in question, (residents were notified in advance by mail) appeared at the Board meeting or wrote in to object, however, and, consequently, noise was not considered as a problem. While working hours were not limited, a requirement that all work be done indoors was included as a condition of the permit. Parking was addressed by the City's Traffic Engineer who interposed neither objection or comment. Since this was a changed use as opposed to a new use, and since the Code requires the parking lot to accommodate the total need of the facility, the staff felt that parking requirements would be less under the changed use as opposed to the old use and would be sufficient. However, it appears that none of the properties currently in use in the area meet the City's current parking standards. Fire was also not considered to be a problem by the staff. City rules require approval by the Fire Marshall before occupancy. Any deficiencies existing would be identified then and, perforce, corrected before the building could be used. WD contends that body and fender repair and painting is not included in the intended definition of vehicle service. The Code definition includes the service and repair of vehicles, boats, and the like; washing and waxing; and installing mufflers, among other things. The Code definition does not specifically list body and fender repair, top and upholstery installation and repair, or the dismantling of engines, which are specifically covered elsewhere. The Code provides that these latter activities shall not be permitted unless specifically approved by the Board. In the instant case, the Board approved the application which refers to vehicle service. A staff comment, included in the application package which went before the Board, and which would appear to satisfy that requirement, notes that: Vehicle service will be primarily auto repairs which will include auto body work, and all aspects of mechanical work including rebuilding.
