BS Ranch and Farm, a Lakeland human waste recycling facility, faces a code enforcement fine of up to $600,000 as a nearly 3-year-old legal fight with Polk County continues.
The code enforcement case against BS Ranch and Farm, a waste recycler in East Lakeland, may hinge on the acuity of investigator Robert Plavchak’s nose.
BS Ranch and its parent company, WHS Visions of Lakeland LLC, face fines of up to $600,000 if Special Magistrate Tiffany Hawks determines Plavchak’s nose knows. At issue is whether the recycling facility was the source of an objectionable odor in the neighboring East Lakeland residential area on eight dates in September and October.
Hawks held a Dec. 12 hearing to consider 15 code enforcement violation notices Plavchak and the county issued against BS Ranch, which operates a facility that recycles human and food wastes and other organic materials into soil for agricultural use. Hawks gave the attorneys until last week to submit their final arguments in the case after hearing more than two hours of Plavchak’s testimony.
The code enforcement investigator said all the notices arose after he went to the East Lakeland neighborhood upon receiving complaints from residents about the distinctive odor attributed to BS Ranch. Plavchak testified he tracked the scent back to the 300-acre BS Ranch property, which is zoned for industrial use.
The current skirmish continues a nearly three-year battle between the county and BS Ranch over the odor issue.
The county first cited BS Ranch in March 2017 after receiving many complaints from local residents since January, as The Ledger reported. At the time, company President Brandy Stanton told The Ledger that BS Ranch had been unfairly targeted as the source of every bad smell in the area.
In May 2017, Special Magistrate Nicholas Troiano ruled against the county’s code enforcement actions because it could not prove the objectionable odors came from BS Ranch.
That summer, the county commission changed its land use laws in a way that would have prevented BS Ranch and similar operations from operating. The company successfully challenged that action when an administrative law judge in Tallahassee ruled the county presented no evidence supporting a reversal of its original 2016 ruling to approve the plant.
But the county won an appeal of that ruling to the Florida Cabinet.
The long legal tussle appeared to end in the fall of 2018, when the company and county officials reached a settlement that would allow BS Ranch to continue operating the recycling facility with additional regulatory oversight.
But the dispute began anew with the code violation notices issued last fall.
Once again, the company’s attorneys assert the county lacks evidence to prove its case.
Plavchak testified that, in addition to detecting and following the scent, he used data from local weather stations and his own observations from flags and tree branches to determine the wind was coming from the direction of the BS Ranch property. He followed the odor back to the company site but did not enter the property.
The company’s attorney, Julie Ball of Hardin & Ball PA in Lakeland, repeatedly asked Plavchak whether he took any scientific measurements on wind direction or air samples in the course of his investigation. He replied he had used only his nose and the weather station data supported by his own observations.
Ball also repeatedly questioned Plavchak on why he was certain the smell came from BS Ranch and no other industrial sites in the area, including the county’s own landfill. He said the odor from BS Ranch recycling facilities was unique, unlike any other industrial odor he has detected.
In her final written arguments, Ball noted Troiano had cited lack of scientific evidence in his 2017 ruling against the county’s code enforcement action.
“Magistrate Troiano further held that ‘substantiation would require some scientific tests as evidence’,” she wrote. “Further ‘if anecdotal evidence was all that was needed to sustain any charge of violation of anything, societal havoc would result’.”
But Assistant County Attorney Randy Mink countered in his written arguments that a special magistrate’s ruling does not carry the same weight as a legal precedent that a regular court ruling does. Therefore, Hawk could not rely on Troiano’s ruling in deciding the current code enforcement dispute.
“The special magistrate in the 2017 order specifically limited his findings to that case and considered factors unique to that case,” Mink wrote.
The county’s land development code does not require the use of scientific instruments to substantiate an odor complaint, he added, and requiring that would lie beyond the special master’s authority.
The BS Ranch site contains five separate parcels, and the county cited the company for a code violation on each parcel. That’s allowed by state law, both attorneys agreed.
But Ball argued the county must still prove which of the five BS Ranch parcels created the objectionable odor and cannot make a blanket determination that all five parcels are at fault.
In his testimony, Plavchak acknowledged he did not have permission to enter the BS Ranch property and could not specify the precise source of the odor.
The county “must demonstrate that each of the five separate properties was the substantiated source of off-site odor on each of the eight odor events,” Ball wrote.
Mink countered the county ordinance states only that it must prove a single operation is the source of the odor.
“Although Investigatore Plavchak admitted he could not testify as to the specific parcel, he was able to confirm through a flyover and aerial photos that the five properties subject to the (notices of violation) are being used for the operations of the BS Ranch and Farm facility,” the county attorney wrote.
Mink concluded the county had met the burden of proof required by state law in a code enforcement case. That requires the county prove a violation occurred based on the “preponderance of evidence,” or the weight of evidence showing a violation was “more likely than not.”