- October 9, 2024
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The Volusia County Council has postponed its vote on a moratorium for developments in heavy industrial zoned parcels until Feb. 6.
On Thursday, Jan. 4, the council voted 5-2 to hold off on making a decision on the moratorium after an attorney representing Belvedere Terminals requested that the issue be heard in a quasi judicial forum as only five properties in the county are zoned I-2 Heavy Industrial. All five properties are located on Hull Road and Hull Trail, near Ormond's city limits, and are owned by the Florida East Coast Railway, Waste Management Inc. of FL and JMJ Ventures Group LLC.
But, Attorney Nicholas Dancaescu said the moratorium will only really impact the property at 874 Hull Road, where Belvedere Terminals seeks to construct a fuel terminal.
"There's only one property that I'm aware of that is undeveloped at this time, and that's the Belvedere parcel, so it's clear to us what's going on here," Dancaescu said.
In late November 2023, the County Council asked staff to proceed with a moratorium on all applications for properties with a heavy industrial zoning. According to the agenda item summary, the purpose of the moratorium "is to allow county staff time to review the list of permitted uses and special exception uses for I-2 and to develop amendments to those uses."
The moratorium, if approved, could be in place for the next nine months, though the council may terminate it earlier than that. A moratorium lasting longer than one year may be subject to the Bert J. Harris, Jr. Private Property Rights Protection Act.
Clay Ervin, county director of growth and resource management, said that the current permitted uses in the heavy industrial zoning is a "very open-ended list."
"It gives the council and staff very limited ability to identify what could be incompatible uses," Ervin said. "And so, the discussion is, 'How do we rectify that situation?'"
While there are only five properties zoned heavy industrial, Ervin explained, approximately 750-800 acres of unincorporated land have an industrial land use and could be impacted in the future. On Dec. 21, the Volusia County Planning and Land Development Regulation Commission unanimously recommended approval of the moratorium ordinance.
The moratorium, Ervin explained to the council, is not targeting a "specific use on a specific piece of property." It's meant to target the heavy industrial zoning district as a whole.
Belvedere Terminals, represented by GrayRobinson law firm, felt differently.
In a letter to the PLDRC, attorney William Dove wrote that the proposed moratorium is "strictly and solely targeting Belvedere."
"Not only is this moratorium patently discriminatory, it directly contradicts the Volusia County Comprehensive Plan at Chapter 19, which protects the rights of a property owner to physically possess and control his or her interests in the property, including easements, leases, or mineral rights and to use, maintain, develop, and improve his or her property for personal use or for the use of any other person, subject to state law and local ordinances," Dove wrote.
Belvedere Terminals selected the site at 874 Hull Road because of its zoning and access to rail lines, which Dove said are necessary for the project. Additionally, the I-2 zoning is the only classification that would allow the construction of the project in unincorporated Volusia County, he added.
"Any moratorium subsequently enacted is simply a further reflection of the county's bad faith attempts to stop an otherwise permissible use of private property and unlawfully deprive Belvedere of their rights," Dove wrote.
Residents asked the councilmen to support the moratorium, with one saying that the "negative impacts of heavy industrial sites on the general public can often outweigh the rights of the individual property owners."
"Increases in population and business in the county have been huge in the last 15 years and what was very appropriate for heavy industrial years ago may not be appropriate now, which is what you are considering and batting around," Ormond Beach resident Robert Alton said.
Ormond Beach resident Elena Kraft said that the next few months will be critical to stop the fuel farm and that she was grateful that the PLDRC supported the moratorium.
"But regardless of [Belvedere's] application, we have a use that is so open-ended that we don't even understand what the ramifications are, not just for a particular site," Kraft said.
Yancey McDonald, president of Samsula Demolition, spoke against the moratorium, saying it was a direct violation of his property rights.
"I know it's a tough one but it directly affects other people other than just a fuel [farm] that are trying to do business within the county," McDonald said. "It leads myself and probably others to seek a legal action against the county and I think it's a huge liability for you guys if you do pass this."
In addition to requesting a quasi judicial hearing, Dancaescu said, Belvedere Terminals is requesting that the company be deemed a substantially affected party so that its representatives may present their case as to why the moratorium is "improper."
"Staff did not request this moratorium — council did," Dancaescu said. "This is simply the latest in a variety of different attempts by the council and the city of Ormond Beach to stand in the way of this project and deprive the applicants of their property rights."
Councilman Danny Robins, who along with Councilman Jake Johansson voted no on postponing the moratorium, directed staff during the meeting to exhibit a screenshot of a Facebook post shared by Volusia County Council Chair Jeff Brower showing his opposition to Belvedere Terminals' proposed fuel farm project. Robins said that throughout the meeting, council members and the public had been repeatedly instructed not to speak about certain projects (the fuel farm) for fear of liability.
"I don't know how we can technically continue with voting on a moratorium when this process is obviously tainted and going to expose us — in black and white — of no fault to this board, of no fault to the community, but the fault of others," Robins said. "To put us at this amount of risk is insane."
Robin's comments incited a member of the public to yell and insult Robins as the council called for a point of order.
"It is my obligation and my fiduciary responsibility to be transparent and that's what this is," Robins said. "But I want to be known for a refuge for citizens, businesses and sanity, not recklessness and political poker with taxpayer safety and dollars."
Brower said Robins was free to use his social media post as an excuse to vote against the moratorium.
"I've always been very transparent about this, as have other members of this council as has the entire Ormond Beach City Commission," Brower said. "... I do have opinions but today we are looking at targeting an entire zoning district."
Councilman Don Dempsey called GreyRobinson a "gorilla of a law firm" and asked Paolo Soria, senior assistant county attorney, how sure he was that the county shouldn't be conducting the issue through a quasi judicial hearing.
Soria said moratoriums are generally legislative in nature, and in this case, the county is targeting the entire heavy industrial zoning district. It just happens to only have five parcels zoned as such.
"We are concerned about the language and the permissiveness of the zoning district language itself," Soria said.
Dempsey, an attorney and former prosecutor, said that if GreyRobinson feels the matter should be heard as a quasi judicial hearing, he'd like to hear their reasoning before making a decision on the moratorium.
Councilman David Santiago said the county has a "gaping hole" in its heavy industrial zoning classification that's not specific to any project.
"It is so broad that I think it serves a public nuisance or public safety issue on what could happen," Santiago said. "Right, not specific to any one project, but because of that, that's why I'm in favor of the moratorium to see how we can better address that as a county as a whole and maybe identify other areas, I don't know."
