For now, despite the best efforts of its opposition, the proposed fuel farm next to Ormond Beach appears to be a go.
What was policy last month has been cast aside in the face of legal reality.
At the moment, legal representatives of Belvedere Terminals and Volusia County are now “in conversations” about how they “can resolve any remaining current legal issues to be able to build a terminal in the area,” according to Marleigh Kerr. Kerr is with Cavalry Strategies, a Tallahassee public-relations firm working for Belvedere.
Belvedere last month sued the county in Circuit Court for delaying action on its application to set up the fuel depot in an unincorporated enclave adjacent to and almost surrounded by the Ormond Beach city limits.
After a months-long pause of development of properties zoned for heavy-industrial uses, the Volusia County Council has ended its freeze on new projects on such parcels in the unincorporated parts of the county.
The county’s moratorium on receiving and reviewing requests to develop land zoned I-2 (Heavy Industrial) has been effectively abolished. Thus, the county’s Department of Growth and Resource Management may now act on Belvedere Terminals’ request to build its planned fuel complex.
“Normal operations have resumed,” Volusia County spokesman Clayton Jackson confirmed in an email response to a query from The Beacon.
In a surprise development Feb. 6, and in a chamber packed with opponents of the proposed fuel depot, the council voted against the moratorium on taking new applications for development of heavy industrial properties.
Asked what Belvedere Terminals plans to do now, “No comment,” was the answer given by Nick Dancaescu, an attorney with GrayRobinson. Belvedere hired the well-known Orlando law firm to contest Volusia County’s regulatory restrictions on the planned fuel complex. The company submitted an application for the project in December.
The council’s abrupt reversal on the nine-month moratorium came after impassioned debate. Many in the audience, such as Elena Krafft, urged the council to enact the moratorium.
“A no vote is a betrayal,” she told the elected body. “We will not be gaslighted. We will not be manipulated, and we will not back down.”
Last month, the council voted 5-2 in favor of the moratorium on first reading. The latest vote was 5-2 against the moratorium on the ordinance’s second and final reading. The latter vote is binding.
The moratorium actually went into effect Nov. 21, 2023, when the County Council voiced its intent to act on an ordinance to that effect. It was set to expire Aug. 21, 2024, unless the council would see fit to extend it for a maximum of three additional months. The county’s Planning and Land Development Regulation Commission also endorsed the moratorium and recommended the County Council adopt it.
Opponents of Belvedere’s plan for a fuel depot, however, say they are not giving up their cause.
“We’ll remember at election time,” one woman was heard saying, as she and others left the meeting.
Fueling fears
The Belvedere facility, if built, would receive, stock and ship out combustible liquids close to the homes of thousands. As well as suing the county, the company has also filed an application to develop the facility.
That prospect strikes fear in some people living nearby.
“We need this moratorium to evaluate what is appropriate and safe,” Virginia Agrusa told the council.
“Eight thousand people live within a mile of the fuel farm in the Lightning Capital of the World,” she added.
Information released by Belvedere advised the fuel facility can store as much as 13 million gallons of gasoline, diesel and ethanol.
“I don’t know of a single person who would want a fuel terminal in their backyard,” Rebecca Chaffee said. “Putting a fuel farm there is crazy. … Let’s not trash Ormond Beach.”
Some speakers reminded the council the proposed site of the fuel terminal is quite close to the Ormond Beach Municipal Airport. That stokes fears of a plane crashing into or close to storage tanks.
Rush Sherwood, who said he has aviation experience, warned about “the potential for an enormous explosion.”
Legal claims in play
Yet, the County Council’s sudden change of mind came as legal clouds loomed large on the horizon. Belvedere, as noted earlier, filed a 39-page lawsuit against the county, demanding its right to have its development application processed. Belvedere argues it has complied with all of the county’s zoning and development regulations thus far, and is thus entitled to construct the fuel depot — a legal facility — next to Ormond Beach.
“Fuel terminals are a vital part of fuel distribution,” Dancaescu said, noting fuel shortages have occurred in Florida in the wake of hurricanes.
“After the storms, it became clear that Florida’s fuel-supply chain was inadequate,” he added.
Dancaescu, it was revealed during the County Council meeting, had emailed to council members the night before or the morning of the meeting, a 382-page document supporting his client’s case. The huge document included case law, and detailed information about fuel supplies, fuel emergencies and history, and it highlighted the need for facilities such as those planned and built by Belvedere.
“The County long ago created a zoning designation that contemplates the use proposed by the Belvedere Project,” Dancaescu’s cover letter reads. “Only after the project became known did discussions about ‘stopping the project’ begin. … This Moratorium is to prevent a single project, on a single property in Volusia County….”
“This Moratorium is improper and would violate Belvedere’s rights, Florida Statutes, and the Council’s own charter,” the letter continues. “Approving this Moratorium would force both the County and Belvedere into additional and likely protracted litigation, along with depositions, discovery, and trial this would entail.”
Who is right?
The arguments about property rights, as enshrined in Florida’s Bert Harris Property Rights Act, weighed heavily in the discussions and debate by the County Council.
“Property rights — that is something you must consider,” Assistant County Attorney Paolo Soria told the council. “You must consider the effect your decision may have.”
Retired Circuit Judge Joe Will, during the public hearing on the moratorium, offered a legal opinion on individual rights, arguing such rights are not absolute or unlimited, and the county could legally restrict Belvedere.
“The right to bear arms — when Mr. [Jake] Johansson retired [from the Navy], they didn’t give him a Tomahawk missile to bring here,” Will said.
As the likelihood of a possible court battle increased, county officials then looked upon options to make the fuel depot safer and less objectionable — namely, the site-plan reviews.
“We would look at it with the codes we have in place,” Growth and Resource Management Director Clay Ervin told the County Council, noting “life-safety issues” would be at the center of any site-plan review.
Local ordinances and regulations, as well as state and federal laws, pertaining to such matters as fire safety, stormwater control, traffic safety, setbacks and compatibility with surrounding properties would be used to guide the final site plan.
Instead of going to court, professional planners and council members began asking about modifying the proposed project. That was something Dancaescu had suggested to the council as he held out the prospect of a legal battle.
“We understand there are concerns. We would be happy to address them,” he said, adding the discussion should be “fact-based.”
The alternative of scrutinizing Belvedere’s site plan for the fuel terminal gained traction on the County Council.
“The moratorium is not a silver bullet, folks,” Council Member David Santiago said. “The best tool that the county has is the site-plan process.”
Santiago added the council’s previous debates on the Belvedere plan had included sharp comments against the company and its proposal.
“This whole process has been poisoned from the beginning,” he said.
Council Member Don Dempsey leaned away from the court fight and toward refining the company’s site plan to make the facility safer.
“Right now, there is a lot of fear in this room,” he said, turning to the audience. “You all used gas to get here today. We need gas.”
Dempsey mentioned he is an experienced pilot, who understands the feelings of those concerned about the rather short distance — less than a mile — between the Ormond Beach Airport and the Belvedere property.
“I’m very familiar with aviation danger,” he said.
Johansson, himself a former naval aviator, urged careful review of Belvedere’s site plan “to mitigate the concerns.”
“I know the fear of the unknown,” he said. “You already have aircraft flying over now, and you’re not concerned about that.”
County Chair Jeff Brower remained steadfast in his support for the moratorium.
“The moratorium is not a silver bullet, and neither is the [site-plan review] process,” he said. “The moratorium gives us time, and gives us independent opinions.”
Debate intensifies to a climax
As for the arguments for maintaining the rights of landowners to develop and use their property, Brower said, “My property rights end at your property line.”
“This should be the easiest vote this council has,” he added.
County Council Vice Chair Troy Kent, in whose District 4 the Belvedere property lies, did not waver in his opposition to the planned fuel facility.
“The government closest to the people is the one that is most impactful,” he said. “Our attorney said it [the Belvedere lawsuit] could have financial consequences. It certainly has quality-of-life consequences.”
Kent moved to approve the moratorium ordinance. There was no immediate second of his motion, prompting someone in the audience to call out, “You cowards!”
Brower, at last, seconded the motion. The vote came shortly afterward.
A solid majority of the County Council voted down the moratorium that had easily won approval last month.
Council Members Dempsey, Johansson, Santiago joined with Matt Reinhart and Danny Robins in opposing the timeout on requests and plans for development on lands zoned for heavy-industrial uses. Brower and Kent dissented.
Thus ended the nearly four-hour drama — but not the disappointment or anger on the part of those who had come from Ormond Beach to watch and speak against what they consider as an attack on them and their neighbors. The council’s decision to pull back from the moratorium and use site-plan reviews to address the critics’ worries did not assuage local resident Catherine Pante’s anger.
“They’re blowing smoke. That’s it. They are completely blowing smoke. They want this, or a few of them want it. And there’s no doubt that they probably broke Sunshine Law, negotiating back door, because a few weeks ago it was a little bit different,” she said afterward.
In regard to the civil case, Kristen Bridges, GrayRobinson’s communications director sent word of The Beacon’s query to Belvedere for the company’s response. That response included highlighting the company’s capital investment and high-wage employment opportunities.
“Belvedere is developing a strategic hub and spur distribution system, with a targeted investment of approximately $750 million into Florida, creating over 200 high-paying jobs,” the e-mail noted. The statement was to be credited to Belvedere Chief Operating Officer Mike Benedetto.
In its response to Belvedere and its legal counsel, Volusia County noted in a filing dated Jan. 26, 2024:
“The County’s moratorium will be over before the year ends. Belvedere’s motion fails to set forth clear, definite, and unequivocally sufficient facts showing it will suffer irreparable harm if the County does not immediately process its conceptual site plan. Belvedere claims it has spent a lot of money on its project in the past. But Belvedere fails to definitively show what irreparable harm it will suffer from the County’s temporary refusal to accept the conceptual site plan it submitted on December 4, 2023.”
Belvedere’s planned $60 million fuel depot next to Ormond Beach is part of the expansion of the company’s fuel-supply and -distribution network in Florida noted above. As well as building in Volusia County, Belvedere has selected fuel sites in Jacksonville and Fort Pierce for fuel terminals.
