Land Use Consistency Determination

The Land Use Consistency Determination has no specific format, but is typically filed as a short pleading with the Florida Department of Environmental Protection, Administrative Law Judge, applicant and all parties. It should include a statement as to whether the proposed site is consistent with local land use plans and zoning ordinances. If the site is not consistent, then the Land Use Consistency Determination should address the reasons for inconsistency and what would need to be done to make the proposed project consistent with local land use plans and zoning ordinances. The plans and ordinances with which to compare the proposal are those that were in effect on the date the application was filed. The Land Use Consistency Determination should have a section focusing on the site, with separate sections for each associated facility that constitutes "development." In conducting the review for consistency the following should be considered:

• All applicable aspects of future land use element and future land use map of the local government comprehensive plan adopted pursuant to Chapter 163, Part II., Florida Statutes (F.S.).
• All applicable zoning ordinances.

The examples and guidance provided below were developed after consultation with the Florida Department of Economic Opportunity. See Community Planning.

Power Plant Site Examples and Caveats

In evaluating the power plant site, the first and foremost issue is whether the site, which is basically an industrial use, is acceptable in the various zones for which it is proposed. By statute, the Land Use Consistency Determination is not applicable to "any new electrical generation unit proposed to be constructed and operated on the site of a previously certified electrical power plant or on the site of a power plant that was not previously certified that will be wholly contained within the boundaries of the existing site." Section 403.50665(2)(a), F.S.

The facilities proposed will greatly influence the Land Use Consistency Determination, but examples of such facilities, in addition to the powerblock itself, include:

• Smokestacks which may be several hundred feet high (unless a nuclear unit is planned); if the land use plan or zoning ordinances have limitations for ‘viewscapes’ or other specific limitations, this might be an issue
• Cooling towers which may be several hundred feet high
• Large cooling ponds
• Storage areas for fuel (e.g., coal piles)
• Wastewater ponds

Comprehensive plans are divided into “elements” per Section 163.3177(6), F.S. It is not necessary in the issued Land Use Consistency Determination to address other elements and whether or not the site is consistent with each element. Consistency of the Project with those other plan elements should be addressed in the local government's agency report and at the final site certification hearing. These might include consistency with matters built into the plans, such as:

• Water supply plans and projects, and natural groundwater aquifer recharge
• Plans for recreation, conservation, education, public buildings and rural land stewardship areas
• Future development of facilities for sanitary sewer, solid waste, drainage and potable water
• Availability of adequate schools for construction/operation employees' families
• Adequacy of local roads to support construction/operation equipment
• Conservation areas such as wetlands, estuarine marshes and fisheries protection habitats
• Traffic circulation and control plans
• Recreation areas needed for the construction/operation employees' families
• Housing needed for the construction/operation employees' families
• Coastal management special provisions
• Seaport and harbor provisions
• Compatibility with airports and airport expansion
   

Associated Facility Examples and Caveats

Whether an associated facility is subject to land use plan and zoning ordinances varies under Chapter 163, F.S., with what type of associated facility is under review. Certain exemptions apply, because of what constitutes “development” exempt items are not considered under the Land Use and Zoning Consistency review. Please note, however, that while a facility may be exempt from a land use plan/zoning ordinance consistency review, local governments can raise other local government concerns about these facilities in their Preliminary Statements of Issues and Agency Report.

The Section 163.3164 (14), F.S., definition of “development” incorporates the definition under Section 380.04, F.S. In particular, under Section 380.04(3)(b), F.S., an exemption applies to “Work by any utility and other persons engaged in the distribution or transmission of gas, electricity, or water, for the purpose of inspecting, repairing, renewing, or constructing on established rights-of-way any sewers, mains, pipes, cables, utility tunnels, power lines, towers, poles, tracks, or the like.” Also, paragraph (h) of that section provides that the creation of rights of access, easements or other rights in land (thus creation of rights-of-ways) is also exempt from this definition. Therefore, proposed electrical transmission line corridors are exempt from the Land Use Consistency Determination. Eventually, the right-of-way chosen must be allowed in any plan or zoning category. However, since proposed right-of-ways will not be created until after certification, it is appropriate to provide guidance on the suitability of the proposed location via the Agency Reports.

This exemption also applies to other facilities possible to be proposed as associated facilities, such as natural gas pipelines, gas pipelines, treated wastewater pipelines, domestic wastewater pipelines and large pipes carrying cooling water.

New electrical distribution substations, pursuant to Section 163.3208(4), F.S., are permitted uses in all land use categories in the applicable local government comprehensive plan and zoning districts within a utility's service territory except those designated as preservation, conservation or historic preservation on the future land use map or duly adopted ordinance. However, a local government may adopt specific standards for the siting of substations.

Examples of associated facilities that are exempt and not exempt are listed below. Please note that this is not an exhaustive list.
 

Exempt Associated Facilities

• Electrical transmission lines
• Natural gas pipelines
• Gasoline pipelines
• Treated wastewater pipelines
• Domestic wastewater pipelines
• Potable water pipelines
• Cooling water pipelines
• Transmission line access roads
• Transmission line maintenance roads

Not Exempt

• Rail car cleaning facilities
• Coal unloading facilities
• Electrical substations