03-002980GM Gregory L. Strand vs. Escambia County Status: Closed Recommended Order on Tuesday, December 23, 2003.

Summary: Petitioner failed to prove that Escambia County`s approval of a future land use map amendment for a small scale development was not "in compliance."

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GREGORY L. STRAND, )

)

Petitioner, )

)

vs. ) Case No. 03 - 2980GM

)

ESCAMBIA COUNTY, )

)

Respondent. )

)

RECOMMENDED ORDER

Notice was given, and on October 21, 2003, a Final Hearing

was held in this case. Pursuant to the authority set forth in

Sections 120.569, 120.57, and 163.3187(3)(a), Florida Statutes,

the hearing was conducted by Charles A. Stampelos,

Administrative Law Judge, in Pensacola, Flor ida.

APPEARANCES

For Petitioner: Margaret T. Stopp, Esquire

Moore, Hill & Westmoreland, P.A.

Post Office Box 13290

Pensacola, Florida 32591 - 3290

For Respondent: Alison Perdu e, Esquire

Escambia County Attorney's Office

14 West Government Street, Room 411

Pensacola, Florida 32501 - 5814

STATEMENT OF THE ISSUE

The issue in this case is whether the Small Scale

Co mprehensive Plan Amendment No. 2003 - 03 adopted by Escambia

County (County) through enactment of Ordinance No. 2003 - 40 (Plan

Amendment) is "in compliance," as that term is defined by Section

163.3184(1)(b), Florida Statutes.

PRELIMINARY STATEMENT

The Co unty adopted the Plan Amendment on August 7, 2003.

The Plan Amendment changed the future land use designation on the

County's Future Land Use Map (FLUM) of an 8.98 - acre parcel from

Low Density Residential (LDR) to Commercial. On August 19, 2003,

Petition er, Gregory L. Strand, filed a Petition for

Administrative Hearing with the Division of Administrative

Hearings (Division) under Section 163.3187(3), Florida Statutes,

to contest the Plan Amendment.

The parties filed a Pre - Hearing Stipulation.

During the hearing, Petitioner presented the testimony of

Richard Duane, P.E., and J. Taylor Kirschenfeld. The County

presented the testimony of Keith T. Wilkins. Joint Exhibits 1

through 5, and 6A through H, were admitted into evidence. After

the parties filed t heir respective proposed recommended orders, a

conference call was conducted at the request of the undersigned

to consider supplementing the final hearing record with several

portions of the Escambia County Comprehensive Plan. Without

objection, the parti es filed a copy of relevant portions of the

Plan and they have been designated as Joint Exhibit 7.

The Transcript of the final hearing was filed with the

Division on November 14, 2003. The parties stipulated to filing

their Proposed Recommended Orders on December 1, 2003. Both

Proposed Recommended Orders have been considered in preparing

this Recommended Order. (All citations are to the Florida

Statutes (2003) unless otherwise indicated.)

FINDINGS OF FACT

The Parties

1. Petitioner, Gregory L. Strand, res ides in Escambia

County, Florida. Petitioner submitted oral written comments to

the County at the adoption hearing on August 7, 2003, regarding

the Plan Amendment and Ordinance No. 2003 - 40. The parties agree

that Petitioner has standing in this proceedin g.

2. The County is a political subdivision of the State of

Florida. The County adopted a Comprehensive Plan (Plan) which

has been subjected to a sufficiency review by the Department of

Community Affairs (DCA), and found "in compliance."

The Property

3. T. Rile y Shipman, Sandra I. Shipman, and Betty J.

Shipman (Shipman's) own the 8.98 - acre parcel (parcel) that is

the subject of the Plan Amendment. The total contiguous land

owned by the Shipmans is approximately 12.7 acres.

4. The parties stipulated that the le gal description of the

property attached to Ordinance No. 2003 - 40 contains less than 10

acres. The parcel extends 850 feet east of, and parallel to,

the right of way of Blue Angel Parkway, and north of Sorrento

Road, but does not front on Sorrento Road.

5. T he future land use designation of the 250 - foot width of

the property that fronts Blue Angel Parkway is Commercial, with

only approximately 150 feet outside of the road right - of - way.

6. Two single - family homes, a mobile home, and a storage

building are located on the parcel.

7. A Wal - Mart Super Store is at the intersection of Blue

Angel Parkway and Sorrento Road, across Blue Angel Parkway from

the parcel.

8. Approximately 3,300 acres across Blue Angel Parkway west

of the parcel is managed by the State of Florida's Board of

Trustees of the Internal Improvement Trust Fund, and preserved

as part of the Pitcher Plant Prairie.

9. Two man - made lakes are located on the parcel.

10. Wetlands likely exist on the parcel.

11. The parcel is surrounded by LDR future land use, and

prox imate to Commercial future land use to the west.

12. The zoning for the parcel is Commercial (C - 1).

The County's Comprehensive Plan

13. In 1993, the County adopted its Comprehensive Plan and

associated FLUM. The Plan established an area of Commercial

future l and use following Blue Angel Parkway from just south of

Sorrento Road and Dog Track Road. The area is approximately 450

feet to 500 feet wide, and centers on and curves with the road.

The result is a future land use of Commercial for the 250 feet

of the subject parcel fronting on Blue Angel Parkway, with

approximately 150 feet outside of the road right - of - way. The

balance of the property is LDR.

The Small Scale Development Application

14. On or about May 28, 2003, the Shipman's agent filed a

"Future Land Use Map Amendment Application" with the County.

The application requests a change in the FLUM category or

designation for the 8.98 - acre parcel from LDR to Commercial.

15. In part, the change was sought so that the property

could be used for ". . . small busi nesses that could be

represented in an area where large businesses already have been

permitted."

16. The application was reviewed by the County's Department

of Growth Management staff and presented to the Escambia County

Planning Board (Planning Board). St aff prepared a "Memorandum"

which recites, in part, a positive staff recommendation. A

Staff Analysis was prepared which analyzes the existing and

proposed land uses in and around the parcel which is described

above. The Staff Analysis also favorably eva luates

infrastructure availability, such as potable water, sanitary

sewer, solid waste disposal, stormwater management, traffic, and

recreation and open space. Comprehensive Plan consistency is

also discussed.

17. The "Impact on Natural Environment" is als o discussed

in the Staff Analysis. The Shipman's agent provided the County

with a study prepared by Billy H. Owen, MPA, Coastal Zone

Management Consultant, which "examines potential effects that

recent, environmental, land use, regulatory, changes might h ave

upon the future use, of a tract of land owned by Riley Shipman."

The study is mentioned in the Staff Analysis.

18. Mr. Owen performed on - site investigations of the parcel

from April 24 through April 30, 2003. Mr. Owen used a "test -

site" which "constitut es approximately two of a total of

thirteen, or so, acres, and is situated directly adjacent to

Blue Angel Parkway." Mr. Owen discusses, in part, the nature of

wetlands on the parcel, whether these wetlands are

jurisdictional wetlands (he concludes they a re not), and

provides an assessment of a two - acre parcel regarding

"vegetation, soil, and hydrology." He states, in part: "The

surface of this area has a patchy cover of similar sandy clay

soil material as is found in the reclaimed fishpond region.

Wher e the sandy clay fill is thin, that is less than one inch

thick or not present, scattered collections of white pitcher

plants, Sarracenia Leucophylla , an endangered plan [Rule 5B -

40.0055(1)(a) 165, F.A.C.], were noted. Thin patches of Large -

leaved Jointwe ed, Polygonella macrophylla , a rare vascular

plant, were present in this site, which is dominated by

wiregrass." See Fla. Admin. Code R. 5B - 40.0055(1)(a)334 and

(1)(b)73.

19. The Staff Analysis refers, in part, to Comprehensive

Plan Policy 11.A.2.6.c and d, see Finding of Fact 27, and

states:

NESD Staff reviewed the consultant's study

submitted by the Agent and provided input to

Growth Management Staff regarding the

potential wetlands impacts on the subject

property. A subject matter expert from NESD

Staff i s available for specific comments if

requested. Of note is the current policy

that requires the degree of hydrological or

biological significance to be determined

prior to applying to the Florida Department

of Environmental protection (FDEP) and/or

the Co rps of Engineers for permits. Without

an exemption as recommended by the Agent's

consultant in his study, the owners will be

required to apply to the relevant agencies

for mitigation if impacts to the wetlands

are proposed. Furthermore, enforcement of

th e "Wetlands Ordinance" (Ordinance 2003 - 9,

Attachment "C") will assure clustered

development with wetland buffers outside any

wetland portions on the site, as well as

compliance with Comprehensive Plan Policy

11.A.2.6.

20. County staff also discuss "changed c onditions and

development patterns," and noted that while "[l]arge portions of

this area are now designated as Pitcher plant Prairie Preserve,"

"uplands within this area, especially at or near the

intersection of main roads, are ripe for development. To

f urther protect the wetlands from development impacts,

commercial development should be clustered at these

intersections. The intersection of Blue Angel Parkway and

Sorrento Road is designated as a 'commercial node' in the draft

Southwest Area Sector Plan currently being completed by EDAW.

This amendment will further increase the concentration of

commercial uses near the intersection, defining a sizable

commercial node and reducing the potential for strip commercial

development along Blue Angel Parkway."

21. In the conclusion to the Staff Analysis, staff stated:

The requested Future Land Use amendment from

Low Density Residential to Commercial follows

a logical plan for development. A re - survey

of the parcels is recommended to clearly

define the subject area and to delineate

potential wetland impacts. Understanding that

wetland mitigation or, alternatively, a re -

survey of the property may be necessary to

reduce potential wetland impacts, Staff

recommends that the future land use of the

designated areas within the subject parcels be

changed from Low Density Residential to

Commercial.

22. On July 16, 2003, the Planning Board considered the

Plan Amendment. County growth management staff, including the

Director of the Growth Management Department and the Escambia

C ounty Neighborhood and Environmental Services Department

(NESD), provided the Planning Board with information during the

hearing. Petitioner, a Planning Board member, raised several

concerns, including whether the proposed FLUM amendment was

inconsistent with Plan Policy 11.A.2.6.d. The Planning Board

recommended the approval of the Plan Amendment by a vote of four

to one (Petitioner).

23. The matter was presented to the Board of County

Commissioners of Escambia County (Board). The Board was

presented wit h, among other documents, the Memorandum and Staff

Analysis mentioned above. After a properly noticed public

hearing, the Board approved the Plan Amendment on August 7,

2003, in Ordinance 2003 - 40.

24. The Plan Amendment, as a future land use designation on

t he FLUM is not a development order. The Plan Amendment does

not authorize development on or of the parcel, which includes

any wetlands on the parcel.

Internal consistency

25. Petitioner contends that the Plan Amendment is

inconsistent with Plan Goal 11.A, Ob jective 11.A.1, Policy

11.A.1.2, Policy 11.A.2.6.d, and Policy 11.A.2.7, because the

Plan Amendment re - designates the parcel from a LDR future land

use to a Commercial future land use, notwithstanding that the

parcel has "wetlands that have a high degree o f hydrological or

biological significance." Petitioner also contends that the

Plan Amendment in inconsistent with Section 163.3177(6)(a),

Florida Statutes, because the County approved the Plan Amendment

without utilizing "its own surveys, studies, or data regarding

the property, including the character of the undeveloped land."

See Petitioner's Proposed Recommended Order, pp. 12 - 13.

26. The County adopted Chapter 11 of the Comprehensive Plan

Coastal Management and Conservation Element. Material here and

und er the heading "Coastal Management," Goal 11.A. provides:

"Protect people and property by limiting expenditures in areas

subject to destruction by natural disasters and by restricting

development activities that would damage or destroy coastal

resources." (Emphasis added.) Objective 11.A.1, "Coastal and

Upland," provides: "Continually, the county shall protect,

conserve and enhance coastal ecosystems, environmentally

sensitive areas, wetlands, water resources, living marine

resources, remaining coastal barriers and wildlife habitats by

monitoring these areas and implementing Policies 11.A.1.1

through 11.A.1.7, among others, upon adoption of this ordinance

(reference Section 15.01)." Policy 11.A.1.2, "Future Land Use

Element Resource Protection Policies, " provides: "Limit the

specific impacts and cumulative impacts of development or

redevelopment upon wetlands, water quality, wildlife habitats,

living marine resources or other natural resources." (Emphasis

added.)

27. Policy 11.A.2.6, "Wetland Development Provisions,"

provides:

Development in wetland areas as defined by

the FDEP shall be subject to the following

provisions:

a. Where sufficient uplands exist to locate

the proposed development in the upland

portion of the site, the county may allow

the tran sfer of development at the future

land use densities established on the future

land use map from the wetlands to the upland

portion of the site. The transfer of

density may occur provided all other plan

provisions regarding upland and floodplain

resource protection, compatibility of

adjacent land use, stormwater management,

airport environs, etc., are met.

b. Development in wetlands shall not be

allowed unless sufficient uplands do not

exist to avoid a taking. In this case,

development in the wetlands s hall be

restricted to allow residential density use

at a maximum density of one unit per five

acres or to the density established by the

future land use map containing the parcel,

whichever is more restrictive, or one unit

per lot of record as of the date of this

ordinance if the lot of record is less than

five acres in size. (Lots of record do not

include contiguous multiple lots under

single ownership).

c. Prior to construction in wetlands, all

necessary permits must have been issued by

the Florida D epartment of Environmental

Protection, and/or the U.S. Army Corps of

Engineers, as required by the agency or

agencies having jurisdiction and delivered

to the county.

d. With the exception of water - dependent

uses, commercial and industrial land uses

will not be located in wetlands that have a

high degree of hydrological or biological

significance, including the following types

of wetlands:

Wetlands that are contiguous to Class II or

Outstanding Florida Waters;

Wetlands that are located in the 100 - year

f loodplain;

Wetlands that have a high degree of

biodiversity or habitat value, based on maps

prepared by the Florida Fish and Wildlife

Conservation Commission or Florida Natural

Areas Inventory, unless a site survey

demonstrates that there are no listed pl ant

or animal species on the site.

e. Also, see Policies 7.A.5.7, 7.A.5.8 and

11.A.1.7. 1

(Emphasis added.)

28. Policy 11.A.2.7, "LDC and Wetlands," provides: "The

county shall implement the land use categories shown on the

future land use maps by inclusio n of the appropriate regulations

within the LDC. Such implementation will ensure the protection

of environmentally sensitive land adjacent to the shoreline and

near any wetlands."

29. Objective 7.A.2. of the Plan dealing with "Future Land

Use and Natural Res ources" provides "Amendments to future land

uses will be required to demonstrate consistency with the

appropriate topography, soil conditions and the availability of

facilities and services." Policy 7.A.4.7 provides future land

use categories, including t he low density residential category

that is, in part, "intended to provide for the protection of

important natural resources." Policy 7.A.4.7.c. Neighborhood

commercial uses that are not a part of a predominantly

residential development or planned unit d evelopment are allowed

when they meet locational and other criteria of Plan Policy

7.A.4.13(A). Policy 7.A.4.7.c. Furthermore, "[r]ezonings and

future land use map amendments to categories allowing higher

densities will be discouraged consistent with Pol icy 7.A.4.3."

Policy 7.A.4.7.c.(4).

30. Policy 7.A.4.1 requires that all new development be

consistent with the Comprehensive Plan.

31. In his testimony at the final hearing, Richard Duane,

P.E., Director of Planning and Engineering for the County,

stated that when a land use change is sought as here, "[t]here

is a policy to know what's on there [regarding wetlands]," but

"[t]here is not a policy to delineate specific wetlands on

future land use maps" nor whether they are high quality, bio -

diverse wetlands. He further stated that the policy of Planning

and Engineering "is to let the Land Development Code dictate to

the Wetlands Ordinance [Section 7.13.00, "Wetlands and

environmentally sensitive lands," Escambia County Land

Development Code (Wetlands Ordinance)] through the development

process." He discussed this policy with Keith T. Wilkins,

Director of the Neighborhood Environmental Services Department

(NESD) of the County. 2 Mr. Duane stated that this is not an

official policy of the Board of County Commission ers. But see

Policy 7.A.5.8, Endnote 1. Mr. Duane stated that the reason for

the policy is that a ". . . future land use map will not impact

any wetlands on any site. Only through the development of the

site will any impact to any site be made, and thos e impacts will

be mitigated or determined through the development and review

process." (The parties stipulated that "Escambia County has a

Wetlands Ordinance in its Land Development Code that governs

development in areas that have wetlands present.")

32. Mr. Duane testified that the provision in Comprehensive

Plan Policy 11.A.2.6.d would be met at the Development Review

Committee (DRC) phase when wetlands would be delineated by the

NESD staff. He also stated that this provision would not

"impact his decision involving the small scale amendment."

However, he did not ignore this provision; he discussed it with

Mr. Wilkins and thought the wetlands should be reviewed through

the Land Development Code.

33. J. Taylor Kirschenfeld, now Senior Water Quality

Scientist and formerly (as of two weeks before the final

hearing) Senior Environmental Scientist in the NESD of the

County, was requested by the Growth Management Department to

review Mr. Owen's study. (Carol Heileman, Planning Board

Coordinator provided the study to Mr. Kirschenfeld.) After

reading the study, Mr. Kirschenfeld opined "that there are

wetlands on the property." Mr. Kirschenfeld did not personally

verify or view the conditions on the parcel. Mr. Kirschenfeld

testified that the applicant's consultan t's (Mr. Owen) report

listed species of plants that would only occur in wetland areas,

and in his opinion, there are wetlands on the property, which is

consistent with the parties stipulation - "Wetlands likely exist

on the property."

34. Mr. Kirschenfeld sen t an e - mail to Ms. Heileman that

the parcel would meet the wetland definition in Section 3 of the

County's Land Development Code and would be jurisdictional to

the County, and, as such, Policy 11.A.2.6.d would apply to the

parcel and the Plan Amendment. T he e - mail was not provided to

the Planning Board or to the Board of County Commissioners.

35. On cross - examination by the County, Mr. Kirschenfeld

testified that Policy 11.A.2.6.b refers to development of the

wetlands and provides: "Development in wetlands s hall be

restricted to allow residential density use. . . ." He further

stated that this provision does not refer to commercial density

use or industrial density use. It simply talks about

development in the wetlands being restricted to allow

residential density use. He further stated that Policy

11.A.2.6.d ". . . talks about the exception of the water -

dependent uses" and again states: "commercial [and] industrial

land uses will not be located in wetlands." He then stated that

the provision further talk s about high degree of hydrological or

biological functions.

36. Upon further questioning of Mr. Kirschenfeld on cross -

examination, Mr. Kirschenfeld stated that he understood that his

supervisors believe that the NESD staff responsibility is to do

wetlands r eview during the DRC process. However, he stated

further that, particularly subparagraph d refers to land uses,

making him think of zoning and future land uses, not just

development.

CONCLUSIONS OF LAW

Jurisdiction

37. The Division of Administrative Hearin gs has

jurisdiction to conduct a hearing on the subject matter of this

proceeding. §§ 120.569, 120.57(1), and 163.3187(3)(a), Fla.

Stat.

Standing

38. Petitioner is an "affected person" as defined in

Section 163.3184(1)(a), Florida Statutes, and has standing in

this proceeding.

Burden of Proof

39. The burden of proof, absent a statutory directive to

the contrary, is on the party asserting the affirmative of the

issue of the proceeding. Young v. Department of Community

Affairs , 625 So. 2d 831 (Fla. 1993).

40. Sectio n 163.3187(3)(a), Florida Statutes, imposes the

burden of proof on the affected person, here Petitioner,

challenging a small scale development amendment. This

subsection also provides in part:

The parties to a hearing held pursuant to this

subsection shal l be the petitioner, the local

government, and any intervenor. In the

proceeding, the local government's

determination that the small scale development

amendment is in compliance is presumed to be

correct. The local government's determination

shall be su stained unless it is shown by a

preponderance of the evidence that the

amendment is not in compliance with the

requirements of this act. [ 3 ]

41. Relevant here, "in compliance" means consistent with

the requirements of Sections 163.3177, 163.3178, 163.3180,

163.3191, and 163.3245, Florida Statutes, the state

comprehensive plan, the appropriate strategic regional policy

plan, and Chapter 9J - 5, Florida Administrative Code.

§ 163.3184(1)(b), Fla. Stat. For the reasons stated herein,

Petitioner did not prove t hat the FLUM Plan Amendment is not "in

compliance."

The Plan Amendment is "in compliance"

42. A comprehensive plan is composed of several elements

including but not limited to a future land use element.

§ 163.3177, Fla. Stat. The future land use element de signates

"proposed future general distribution, location, and extent of

the uses of land for residential uses, commercial uses,

industry, agriculture, recreation, conservation, education,

public buildings and grounds, other public facilities, and other

cat egories of the public and private uses of land."

§ 163.3177(6)(a), Fla. Stat. The FLUM is a component of the

future land use element of the plan as "[t]he proposed

distribution, location, and extent of the various categories of

land use shall be shown o n a land use map or map series which

shall be supplemented by goals, policies, and measurable

objectives." Id. In other words, "[t]he FLUM is a pictorial

depiction of the future land use element and is supplemented by

written 'goals, policies, and measur able objectives.' The FLUM

must be internally consistent with the other elements of the

comprehensive plan." Coastal Development of North Florida, Inc.

v. City of Jacksonville , 788 So. 2d at 208. (Citations

omitted.)

43. A small scale development amendmen t reviewed under

Section 163.3187(1)(c), Florida Statutes, by a local government,

"does not involve a text change to the goals, policies, and

objectives of the local government's comprehensive plan, but

only proposes a land use change to the future land us e map for a

site - specific small scale development activity."

§ 163.3187(1)(c)1.d., Fla. Stat.

44. Coastal Management Policy 11.A.2.6 expressly provides

for "Wetland Development Provisions" and that " [d]evelopment in

wetland areas as defined by the FDEP sha ll be subject to"

subparagraphs a through e. Subparagraphs a and b pertain to

development of uplands and wetlands, respectively. For example,

subparagraph b provides that in order to avoid a taking,

wetlands may be developed, but restricted to allow resi dential

density or the density established by the FLUM containing the

parcel. Subparagraph c pertains to the required issuance of

"all necessary permits" by appropriate agencies "[p]rior to

construction in wetlands." Subparagraph d provides that "[w]ith

the exception of water - dependent uses, commercial and industrial

land uses will not be located in wetlands" that meet stated

criteria. Subparagraph e refers to other Policies. See

Endnote 1.

45. The Plan, including the FLUM and amendments thereto,

are legi slative decisions. Coastal Development of North

Florida, Inc. v. City of Jacksonville , 788 So. 2d at 208 - 209.

The Plan should be read as a whole in determining the County's

intent with respect to a discrete portion. Id. 4

46. Policy 11.A.2.6 provides "Wetl and Development

Provisions." Notwithstanding the use of the term "land uses" in

subparagraph d, when read as a whole, it appears that the County

intended Policy 11.A.2.6.a through e to apply to decisions of

the County regarding development applications an d not to changes

in future land use designations or categories in a FLUM.

Petitioner did not prove by a preponderance of the evidence that

the Plan Amendment is inconsistent with Goal 11.A, Objective

11.A.1, and Policies 11.A.1.2, 11.A.2.6, and 11.A.2.7.

47. Further, Petitioner did not prove by a preponderance of

the evidence that the County did not have sufficient surveys,

studies, or data regarding the parcel when the Plan Amendment

was adopted. See § 163.3177(6)(a), Fla. Stat.

48. Based upon the foregoing, Petitioner did not prove that

the Plan Amendment is not "in compliance."

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department of Community Affairs enter

a final order concluding that the FLU M Plan Amendment No. 2003 -

03, adopted by the Board of County Commission of Escambia County

in Ordinance No. 2003 - 40, is "in compliance" as defined in

Section 163.3184(1)(b), Florida Statutes.

DONE AND ENTERED this 23rd day of December, 2003, in

Tallahasse e, Leon County, Florida.

S

CHARLES A. STAMPELOS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 23rd day of December, 2003.

ENDNOTES

1 / Section 7.04 of the Plan pertains to "Management of Future

Developmen t." Objective 7.A.5 pertains to "Historical and

Environmental Resources," and provides: "The county shall

ensure the protection of natural and historic resources."

Policy 7.A.5.7 pertains to "Wetlands Buffers" and provides, in

part: "Buffers will be cr eated between development and

environmentally sensitive areas, including wetlands. The

purpose of the buffer is to protect natural resources from the

activities and impacts of development . . . ." (Emphasis added.)

Policy 7.A.5.8 pertains to "Wetlands or Wildlife Indicators" and

provides:

The county does adopt and will use the

National Wetlands Inventory Map and the

Escambia County Soils Survey and the Florida

Game and Freshwater Fish Commission LANDSAT

imagery of the county as indicators of the

potenti al presence of wetlands or listed

wildlife habitat. In reviewing applications

for development approval , if a parcel is

determined to have wetlands or listed

wildlife habitat potential based on any of

these or any other reliable information, the

county wil l require a site - specific wetlands

or listed wildlife habitat determination and

such determination shall be used to

determine the buildable area (uplands) of

the parcel or lot . Preparation of the site -

specific survey must be approved by Escambia

County and in a form and format acceptable

to the county. Protection of the wetlands

or listed wildlife habitat as determined in

the site - specific survey shall be afforded

during and after construction activities .

Also, for protection of the floodplain and

to regu late any activities proposed therein,

the county will adopt the FEMA floodplain

maps (community panels) in the LDC. Also,

see Policy 7.A.5.3 above and Objective

11.A.2 and the policies thereunder .

(Emphasis added.)

2 / Mr. Wilkins administers several di visions ranging from

environmental quality, neighborhood enhancements, soil and water

conservation, and marine resources. He sits as one of three

members on the DRC. The NESD staff applies the County's Wetland

Ordinance during the DRC process when propos ed projects are

subject to development review. The Wetland Ordinance governs

the development or redevelopment in areas that have wetlands and

is designed to protect the County's natural resources. As part

of the DRC review process, the NESD staff is requ ired to

determine the presence of protected species of wildlife,

protected botanical species, and protected species. Wetland

delineations are also conducted. In order to obtain DRC

approval for a development order, the proposed project must be

consistent with the Plan. The Wetland Ordinance is designed to

implement Policy 11.A.2.6.

3 / In Coastal Development of North Florida, Inc. v. City of

Jacksonville Beach , 788 So. 2d 204 (Fla. 2001), the court held

that "small - scale development amendment decisions made pursuant

to section 163.3187(1)(c), Florida Statutes (Supp. 1996), are

decisions which are legislative in nature and subject to the

"fairly debatable" standard of review." However, the specific

statutory burden of proof has been applied in this proce eding.

Robert J. Denig v. Town of Pomona Park , Case No. 01 - 4845GM, 2001

WL 1592220 (DOAH June 18, 2002; Admin. Comm. Oct. 23, 2002).

4 / The court found the following analysis persuasive:

"[A]mendments to a legislatively adopted statement of general

pol icy are legislative acts. Even if the comprehensive plan

amendment consists of an amendment to the comprehensive plan's

future land use map which is applicable only to a single tract

of land, the amendment should be deemed legislative. The future

land us e plan map alone does not determine or control the uses

which can be made of a particular tract of land. Rather, the

comprehensive plan as a whole, including the future land use map

and all of the other policies of the plan, consists of

legislative polici es that must be applied to determine what uses

can be made of a specific tract of land. Thomas G. Pelham,

Quasi - Judicial Rezonings: A Commentary on the Snyder Decision

and the Consistency Requirement , 9 J. Land Use & Envtl. L., 243,

300 - 301 (1994)." Id. at 208 - 209.

COPIES FURNISHED :

Alison Perdue, Esquire

Escambia County Attorney's Office

14 West Government Street, Room 411

Pensacola, Florida 32501 - 5814

Margaret T. Stopp, Esquire

Moore, Hill & Westmoreland, P.A.

Post Office Box 13290

Pensacola, Flor ida 32591 - 3290

Colleen Castille, Secretary

Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 100

Tallahassee, Florida 32399 - 2100

Heidi Hughes, General Counsel

Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 325

Tallaha ssee, Florida 32399 - 2100

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the final order in this case.