Specialist Lawyers Say Bioethanol Proposal Violates City Code

By Mike Lednovich

Legal land use experts have issued their opinion that RYAM's proposed bioethanol plant at its Fernandina Beach complex would be in violation of the city's Comprehensive Plan and Land Development Code.

"In sum, it is our opinion that the proposed Bioethanol Plant is not an allowable use consistent with the City’s Comprehensive Plan and LDC. Both the Comprehensive Plan, in its Industrial future land use category, and the LDC, in the definitions applicable to the I-2 Heavy Industrial zoning, expressly prohibit the proposed use on the Property. Therefore, state law requires the City to reject the development and operation of this land use," wrote attorneys James White and Susan Trevarthen of the firm Weiss Serota in a letter to City Attorney Tammi Bach.

The lawyers said the only avenue to permit a bioethanol plan would be "If the City wanted to consider allowing the proposed Bioethanol Plant, it would need to amend both the Comprehensive Plan and the LDC to allow for it, in a manner that preserves the internal consistency of the Comprehensive Plan as required by state law."

Bach had requested the outside legal opinion on March 20.

"We're relieved and thrilled that our comprehensive plan blocks the proposed ethanol plant, safeguarding our community's future," said Taina Christner of the group "No Bioethanol."

Last November, Rayonier Advanced Materials had submitted an application to the state for a Bioethanol production plant that would be located at its current cellulose production complex.

According to the "air construction permit application" submitted to the Florida Department of Environmental Protection on Nov. 13, RYAM sought to operate the plant on its current site along with two shift process tanks, one off-spec tank, and one product storage tank that would have internal floating roofs. The application states the plant would produce 7.5 million gallons of bioethanol for sale each year. The product storage tank can hold 39,900 gallons.

Opposition to the bioethanol plant has been widespread not only in the city but on Amelia Island as well.

Sierra Club President Julie Ferreira said, "Citizens have worked hard on this issue. We felt like the City’s Comprehensive Plan was written in black and white with the express purpose to protect the safety and welfare of the community. Today is the day that was verified. The fight isn’t over however, now we have to elect the people who will withstand RYAM’s pressure to change the Comp Plan in the future. We must still remain vigilant."

The law firm said one of the key factors in its determination was whether bioethanol was a chemical.

The attorneys wrote, "The processes involved in the proposed Bioethanol Plant are chemical manufacturing and refining. Therefore, the City’s Comprehensive Plan and LDC clearly and expressly prohibit its development and operation. State law requires the City to reject such a proposal and enforce its Comprehensive Plan and LDC."

Fernandina Beach City Commissioner Darron Ayscue said at the commission's May 7 meeting that if outside attorneys advise that the bioethanol plant violates city laws, the commission will not allow the proposal to go forward.

Commissioner Chip Ross said, "I've read the opinion, I agree with the opinion. And under the Land Development Code, the interim city manager makes the final determination, and I'll be asking him for a written opinion on this matter shortly."

No other commissioners chose to comment on the decision.

RYAM's spokesman Ryan Houck said, "The City’s outside counsel prepared a thorough opinion. However, the opinion was based on limited information gleaned from the air permit application and draft air permit rather than any application submitted to the City.

"RYAM looks forward to engaging with the City at the appropriate time to provide additional information regarding the project to demonstrate that the project is an allowable use under the existing Comprehensive Plan and Land Development Code."