§ 3.05.07. Prohibited Use Operating Permits

A.

Generally

In situations where a Prohibited Activity will serve an overriding public interest or a compelling public purpose by being located within a WRPA or SWRPA, a Prohibited Use Operating Permit may be sought. The Board of County Commissioners must make a finding of overriding public interest in order for the Prohibited Use Operating Permit to be approved. The applicant must demonstrate that special or unusual circumstances and adequate technology exist to isolate the facility or activity from the potable water supply.

In granting the Prohibited Use Operating Permit, the County may prescribe any additional appropriate conditions and safeguards which are necessary to protect the WRPA or the SWRPA. Prohibited Use Operating Permit conditions can include, but are not limited to:

1.

Submittal of existing monitoring reports to the County.

2.

Required actions to prevent an illegal discharge.

3.

Establishing a permit renewal and inspection cycle more frequent than otherwise required.

4.

A requirement for monitoring of groundwater or surface water quality.

5.

Actions which are conditions of approval of the permit which must be maintained in compliance for the permit to be in effect

6.

Surety, bond, escrow, letter of credit, or other common form of financial assurance.

B.

Duration

A Prohibited Use Operating Permit for a particular activity or facility shall remain valid for a five-year period provided the permitee is in compliance with the terms and conditions of the permit and there is no change in the activity or use of the property. A Prohibited Use Operating Permit for a particular activity or facility shall expire automatically five years after issuance, unless revised, revoked or extended as provided in this Part. An applicant must apply for an Extension and obtain approval before the expiration of the permit. Permits may be extended more than once.

C.

Conditions and Safeguards

In granting the Prohibited Use Operating Permit, additional conditions and safeguards may be prescribed which are deemed necessary to protect the existing impacted well(s), future identified well(s) or future potable surface water supply resources. The applicant for a Prohibited Use Operating Permit shall demonstrate by the preponderance of competent substantial evidence of:

1.

Overriding public interest.

The Board of County Commissioners must make a determination that there is an overriding public interest or a compelling public purpose being served by allowing a prohibited use to locate or expand in a WRPA or a SWRPA.

2.

Unique hardship.

Unique circumstances exist which are peculiar to the particular non-residential activity or facility and which are different than any other prohibited or permitted non-residential activity or facility; and

3.

Best Available Technology.

Best Available Technology exists which will isolate the activity or facility from contaminating the existing or future potable water supply resources; and

4.

Hydrogeologic data and analysis.

Site-specific hydrogeologic data and analysis establish that the activity or facility will not elevate water quality parameters above the limits set forth in Chapters 62-302, 62-520, 62-522 and 62-550 Florida Administrative Code at the point of discharge, and

5.

Best Management Practices.

Utilization of Best Management Practices shall be required.

D.

Application to the County.

Activities claiming Prohibited Use Operating Permit with best available technology to isolate the facility or activity from the potable water supply facility and protect the potable water supply wellfield must submit:

1.

A Prohibited Use Operating Permit application claiming special or unusual circumstances and adequate protection technology.

2.

Such application shall contain a statement by the applicant detailing the circumstances which the applicant feels would entitle him to an exemption pursuant to this section.

3.

Information must be provided that proves that an overriding public interest is being served by the prohibited use.

E.

Review of Prohibited Use Operating Permit Applications

Applications will be reviewed for:

1.

An overriding public interest being served by the prohibited use.

2.

Impacts of the activity on public potable water supply wells and public potable water supply systems or surface waters.

3.

Results of the required Inspection Report showing any determinable violation of the code requirements.

4.

A determination that there is or is not a proposed activity or facility which requires permit conditions.

5.

Determination of proposed use of Best Available Technology.

6.

Determination of unique hardship.

7.

Determination of proposed Best Management Practices.

8.

In order to authorize any Prohibited Use Operating Permit, the Wellhead Hearing Master shall consider the following criteria:

a.

Special conditions: That special conditions and circumstances exist which are peculiar to the land, structure, or building involved, including the nature of and to what extent these special conditions and circumstances may exist as direct results from actions by the applicant.

b.

No special privilege: That granting the Prohibited Use Operating Permit requested will not confer on the applicant any special privilege that is denied by this Article to other similar lands, buildings, or structures in the WRPA or SWRPA.

c.

Unnecessary hardship: That literal interpretation of the provisions of this Article would deprive the applicant of rights commonly enjoyed by other properties under the terms of this Article.

d.

Prohibited Use Operating Permit is necessary: That the Prohibited Use Operating Permit granted is the minimum variance that will make possible the reasonable use of the land, building, or structure.

e.

Purpose and intent compliance: That the grant of the Prohibited Use Operating Permit will be in harmony with the general intent, purpose, and spirit of this Article, and with the comprehensive plan adopted pursuant to state law.

f.

No detriment to public welfare: That such Prohibited Use Operating Permit will not be injurious to the area involved or otherwise detrimental to the public welfare.

g.

Establishing conditions or safeguards: That in granting any Prohibited Use Operating Permit, the Wellhead Hearing Master may prescribe appropriate conditions and safeguards to ensure proper compliance with the general spirit, purpose, and intent of this Article. Noncompliance with such conditions and safeguards, when made a part of the terms under which the Prohibited Use Operating Permit is granted, shall be deemed a violation of this Article.

h.

Expiration: All Prohibited Use Operating Permits granted by the County shall be deemed to automatically expire in the event a structure or use of land which is the subject of the Prohibited Use Operating Permit has been discontinued.

F.

Revocation Or Revision of Prohibited Use Operating Permits

1.

Any permit issued under the provisions of the Code shall not become vested in the permittee. The Administrator will revoke any permit by first issuing a written notice of intent to revoke by certified mail, return receipt requested, or hand delivery, if he finds that the permit holder:

a.

Has failed or refused to comply with any of the provisions of the Code, including but not limited to permit conditions and bond requirements.

b.

Has submitted false or inaccurate information in his application.

c.

Has failed to submit operational reports or other information required by this Article.

d.

Has refused lawful inspection.

e.

Is subject to revocation.

2.

The Administrator may revise any permit by first issuing a written notice of intent to revise, sent by certified mail, return receipt requested, or hand delivery.

3.

Within 30 days of any spill of a Regulated Substance in the WRPA or SWRPA the County shall consider revocation or revision of the permit or revise the bond amount. In consideration of whether to revoke or revise the permit, the Administrator may consider the intentional nature or degree of negligence, if any, associated with the spill, and the extent to which containment or cleanup is possible, the nature, number and frequency of previous spills by the permittee, and the potential degree of harm to the surface water, groundwater or surrounding wells due to such spill.

4.

For any revocation or revision by the County of a Prohibited Use Operating Permit as provided under the terms of the Code, the Administrator shall issue a notice of intent to revoke or revise which shall contain the intent to revoke or revise the Operating Permit.

5.

The written notice of intent to revoke or revise shall contain the following information:

a.

The name and address of the permittee, if any, and property owner, if different.

b.

A description of the facility which is the subject of the proposed revocation or revision.

c.

Location of the spill, if any.

d.

Concise explanation and specific reasons for the proposed revocation or revision.

e.

A statement that "Failure to file a petition within 30 days after the date upon which permittee receives written notice by certified or registered letter to the lessor and landowner of the intent to revoke or revise shall render the proposed revocation or revision final and in full force and effect."

6.

Failure of the permittee to file a petition shall render the proposed revocation or revision final and in full force and effect.

7.

Nothing in this section shall preclude or be deemed a condition precedent to the County seeking a temporary or permanent injunction.

G.

Inspection

1.

Inspection Upon Application for Permit

Facilities and properties applying for a Prohibited Use Operating Permit are subject to onsite inspection of the physical buildings and property by a County inspector before any permit is issued.

2.

Inspection for Violations of County Code

Facilities and properties which are covered under Part 3.05.00 of the Land Development Code may be inspected for compliance with the Code provisions.

H.

Hearing Before Wellhead Hearing Master

1.

Findings and Recommendations

a.

The Wellhead Hearing Master shall file his recommendation and submit the record of the hearing to the Clerk of the Board of County Commissioners within 15 days of the close of the hearing.

b.

The Clerk of the Board of County Commissioners shall, within three working days from the date that the Wellhead Hearing Master's recommendation and the record of the hearing are filed, deliver a copy of the recommendation to the applicant, and the Administrator.

c.

The recommendation of the Wellhead Hearing Master shall include:

1.

Summary of evidence presented.

2.

Findings of fact.

3.

Conclusions of law.

4.

A finding of compliance or a finding of all points of noncompliance with this Code and the Comprehensive Plan.

5.

A recommendation to either approve or deny the application with reasons therefore specified, including any recommended conditions.

d.

No application shall be recommended for approval by the Wellhead Hearing Master unless it is found that the application is in compliance with this Code and the Comprehensive Plan.

2.

Record of Hearing Before the Wellhead Hearing Master

The record of the hearing before the Wellhead Hearing Master, which shall be submitted to the Clerk of the Board of County Commissioners, shall consist of:

a.

The application and accompanying documents.

b.

Staff reports and recommendations.

c.

All exhibits and documentary evidence.

d.

The summary, findings, conclusions, and recommendation of the Wellhead Hearing Master.

e.

The tape recording of testimony at the hearing.

f.

Verbatim transcript of the proceedings.

I.

Consideration by the Board of County Commissioners

1.

Notice Date for Board of County Commissioners' Consideration

a.

Any person wishing to receive notice of the date when the Board of County Commissioners will consider an application may supply the Clerk of the Board of County Commissioners with their name, address, and a stamped self-addressed envelope for that purpose.

b.

A date and time at which the Board of County Commissioners will consider an application shall be established no later than 15 days from the conclusion of the public hearing before the Wellhead Hearing Master. The Administrator shall arrange for the setting of said date and shall ensure that the Clerk of the Board of County Commissioners is advised at least 30 days in advance of said date.

c.

Upon notification of the date and time at which the Board of County Commissioners will consider an application for final decision, the Clerk of the Board of County Commissioners shall give notice of same by proof of mailing receipt, to the applicant and to all owners of property who were notified for the public hearing before the Wellhead Hearing Master as required by 3.05.07.I.6. Other parties of record and all persons who supplied the Clerk with their names, addresses, and a stamped self-addressed envelope for the purpose of receiving notice shall also receive notice. Such notice shall be mailed at least 20 days prior to the date set.

2.

Evidence Before the Board of County Commissioners

a.

The record before the Board of County Commissioners upon consideration of an application shall be the complete record of the hearing before the Wellhead Hearing Master, including his recommendation. Except in those instances where the application is part of the review and application for development approval pursuant to Chapter 380.06, Florida Statues, the Board after reviewing the record and recommendations, shall consider additional evidence only as considered in 2.B below.

b.

Additional evidence may be allowed pursuant to the provisions of this Subsection, if:

1.

Through the exercise of due diligence it could not have been discovered in time to present same to the Wellhead Hearing Master; and/or

2.

The witness could not appear at the public hearing for good reason beyond his control.

c.

Within seven calendar days after the date of filing of the Wellhead Hearing Master's recommendation, the individual seeking to introduce the additional evidence described in 2 above, shall file with the Clerk of the Board a written request including:

1.

The additional evidence, and

2.

The reasons why the evidence could not through the exercise of due diligence have been discovered in time to present same to the Wellhead Hearing Master; and/or

3.

The reasons why the witness could not appear.

d.

The request shall be filed on forms available from the Administrator. A copy of said request shall be maintained by the Administrator and maintained in a master file available to the public and the Board.

e.

The additional evidence, if documentary, shall be attached to the request. If testimonial in nature, a summary of the testimony shall be provided.

f.

The Board shall consider the request for presentation of additional evidence and responses thereto at the public meeting on the Wellhead Hearing Master's recommendation. Staff of the Office of County Attorney shall review the additional evidence request in regard to whether or not the request meets the criteria stated in 2. above and whether or not the additional evidence is duplicative of material already in the record before the Wellhead Hearing Master. Staff of the County Attorney's Office shall report its findings at the meeting before the Board. The Board shall remand the proceeding to the Wellhead Hearing Master for the purpose of consideration of the additional evidence if he finds all the following:

1.

The additional evidence could not through the exercise of due diligence have been discovered in time to present same to the Wellhead Hearing Master, or the witness could not appear at the public hearing for good reason beyond his control.

2.

That the additional evidence is not duplicative of material already in the record before the Wellhead Hearing Master.

3.

The evidence is relevant to the issues raised by the petition at issue.

g.

If the Board finds that the additional evidence is not admissible based upon the criteria contained herein, then the Board shall deny the request and proceed to consider the petition. The Board of County Commissioners shall specifically state on the record why a request has been denied. Once a request is denied, the material presented shall not be considered by the Board in its deliberations.

h.

If the Board finds that the additional evidence is admissible and therefore elects to remand the proceedings to the Wellhead Hearing Master, then the Board shall establish a date for said hearing. The remanded proceedings shall be conducted in accordance with the terms of this Code applicable to proceedings before the Wellhead Hearing Master, except that said proceeding does not have to be renoticed. At the conclusion of the remanded proceedings, the Wellhead Hearing Master shall file an amended recommendation which has considered the introduction of the additional evidence. The Clerk of the Board shall renotice all parties of record of the new set time and date at which the Board will consider an application for a final decision.

i.

If the applicant elects to waive any objection to the additional evidence, the Board of County Commissioners may proceed to consider the petition without remand.

3.

Proceedings Before the Board of County Commissioners

a.

The participants before the Board of County Commissioners shall be the applicant, County agencies and Parties of Record. The order of appearance and time allotments shall be as follows, provided that for good cause shown, the Board may grant additional time. Testimony shall be limited to matters directly related to the record of the proceedings before the Wellhead Hearing Master.

b.

The presentation shall be as follows:

1.

Applicant and witnesses; proposal: 15 minutes, plus an additional 15 minutes if requested by the applicant.

2.

Administrator, summary of the application, County staff and department findings: five minutes.

3.

Proponents; argument for the application: 15 minutes.

4.

Opponents; argument against the application: 15 minutes.

5.

Staff, amended recommendations, if any: five minutes.

6.

Applicant; rebuttal and summation: five minutes.

c.

The Board of County Commissioners may continue the hearing upon a finding that said continuance is necessary to a complete review of the Wellhead Hearing Master's recommendation. Said continuance shall be to a date and time certain.

d.

The Board of County Commissioners reserves the right to remand an application to the Wellhead Hearing Master when additional review is needed. If the Board elects to remand an application to the Wellhead Hearing Master, the Board shall establish a date and time for said hearing, which shall not exceed 45 days from the date of the Board hearing.

4.

Party of Record

A party of record is:

a.

A person who was present at the hearing before the Wellhead Hearing Master and presented either oral testimony or documentary evidence.

b.

A person who was notified of the hearing before the Wellhead Hearing Master by proof of mail pursuant to the terms of this Section.

5.

Consideration and Final Decision of the Board of County Commissioners

The Board of County Commissioners shall consider the record of hearing before the Wellhead Hearing Master, and any testimony or additional evidence received pursuant to the terms contained herein, and shall approve or deny the application subject to such conditions as may be necessary and appropriate.

6.

Notice

a.

Notice of review by the Wellhead Hearing Master of applications for Prohibited Use Operating Permits shall be provided by the applicant by proof of mailing receipt, to all owners of property within 500 feet of the perimeter of the boundary of the proposed activity. Public rights-of-way less than 1,000 feet in width as measured at the site shall be excluded in calculating notification distances. When a water body less than 1,000 feet in width intervenes in the required notice distance and extends beyond the notice distance, only the property owners adjacent to the water body will receive the extended notice. However, when a water body intervenes, but does not extend beyond notice distance, the water body shall not be recognized for the purpose of notice. The names, addresses and tax folio numbers of all such owners shall be obtained by reference to the latest ad valorem tax records. In addition, notice shall be provided in the same manner to all duly registered neighborhood organizations lying within one mile of the boundary of the proposed activity. Said notice by mail is the responsibility of the applicant and shall be mailed no later than 20 calendar days after filing of the application. Said notice shall be mailed again by the applicant by proof of mailing receipt, upon establishment of the Wellhead Hearing Master's date and Board of County Commissioners meeting date. The notice shall indicate both dates the application will be considered on, in addition to the requirements of 3.05.07.I.6.D, and shall be mailed no later than 15 calendar days prior to the Wellhead Hearing Master's hearing. In the event the date of the hearing is changed, a new notice shall be sent by the applicant. Further notice shall be given by the Administrator by posting a sign in a conspicuous place on the property which is the subject of the proposed activity at least 15 calendar days prior to the Wellhead Hearing Master's hearing date.

b.

Where an application to amend a DRI Development Order is brought to the Board of County Commissioners directly, as authorized in 10.03.00, notice shall be provided by the applicant proof of mailing receipt, to all owners of property within 500 feet of the perimeter of the proposed activity which is the subject of the amendment, excluding public rights-of-way less than 1,000 feet in width. When a water body less than 1,000 feet in width intervenes in the required notice distance and extends beyond the notice distance, only the property owners adjacent to the water body will receive the extended notice. However, when a water body intervenes, but does not extend beyond notice distance, the water body shall not be recognized for the purpose of notice.

c.

Notice of review by the Wellhead Hearing Master, as well as notice of final consideration by the Board of County Commissioners of the recommendations of the Wellhead Hearing Master, shall be provided in accordance with 10.03.00 of this Code, and the requirements of Chapter 380, Florida Statutes.

d.

For purposes of paragraphs A and B above, mailed notices shall contain the following information:

1.

Date, time and location of the hearing;

2.

A description of the request;

3.

A legal description of the property;

4.

Location of the property;

5.

Instructions for obtaining further information regarding the request; and

6.

The applicant's name.

(Ord. No. 04-27, § 2, 6-10-04; Ord. No. 06-34, § 2(Exh. A), 11-2-06)

Editor's note

It should be noted that § 4 of Ord. No. 06-34, adopted November 2, 2006, provides for an effective date of February 1, 2007.