07-005779GM Jennifer Cochran vs. City Of Crestiview Status: Closed Recommended Order on Monday, April 21, 2008.

Summary: Small-scale amendment not in compliance because of internal inconsistency with the Plan, lack of intergovernment coordination, insufficient data and analysis, and incompatibility with adjoining properties.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JENNIFER COCHRAN, )

)

Petitioner, )

)

vs. ) Case No. 07-5779GM

)

CITY OF CRESTVIEW, )

)

Respondent, )

)

and )

)

B & H CONTRACTING, INC., )

)

Intervenor. )

______________________________)

RECOMMENDED ORDER

Pursuant to notice, this matter was heard before the

Division of Administrative Hearings by its assigned

Administrative Law Judge, Donald R. Alexander, on February 14,

2008, in Crestview, Florida.

APPEARANCES

For Petitioner: Silvia Morrell Alderman, Esquire

Akerman Senterfitt

106 East College Avenue, Suite 1200

Tallahassee, Florida 32301-7748

For Respondent: Ben L. Holley, Esquire

City Attorney

Post Office Box 1238

Crestview, Florida 32536-1238

For Intervenor: William J. Dunaway, Esquire

Clark, Pennington, Hart, Larry,

Bond & Stackhouse

Post Office Box 13010

Pensacola, Florida 32591-3010

STATEMENT OF THE ISSUE

The issue is whether the City of Crestview's (City's)

small-scale development amendment adopted by Ordinance No. 1370

on November 26, 2007, is in compliance.

PRELIMINARY STATEMENT

On November 26, 2007, the City adopted a small-scale

development amendment (Ordinance No. 1370), which changed the

future land use designation on the City's Future Land Use Map

(FLUM) on a 9.98-acre parcel from a Rural Residential (RR)

designation to Industrial (IN). The parcel is owned by

Intervenor, B & H Contracting, Inc. (B & H).

On December 24, 2007, Petitioner, Jennifer Cochran, who

resides in Antioch Estates, a nearby residential subdivision,

filed with the Division of Administrative Hearings (DOAH) a

Petition for Formal Administrative Hearing (Petition) under

Section 163.3187(3)(a), Florida Statutes (2007). 1 The Petition

generally contended that the amendment was not in compliance in

several respects. On January 18, 2008, B & H was authorized to

intervene in this proceeding.

By Notice of Hearing dated January 18, 2008, a final

hearing was scheduled on February 14 and 15, 2008, in Crestview,

Florida. On February 12, 2008, the case was transferred from

Administrative Law Judge J. Lawrence Johnston to the

undersigned.

On February 7, 2008, Petitioner filed an unopposed Motion

to Amend Petition for Formal Proceedings, accompanied by an

Amended Petition for Formal Administrative Hearing (Amended

Petition). The Amended Petition generally alleged that the plan

amendment exceeded the 10-acre size limitation for small-scale

amendments, conflicted with certain provisions within Florida

Administrative Code Rule Chapter 9J-5, was not based on adequate

data and analysis, was inconsistent with other provisions in the

City's Comprehensive Plan (Plan), and was inconsistent in

certain respects with Chapter 163, Florida Statutes. Leave to

file the amended pleading was authorized by Order dated

February 8, 2008.

On February 11, 2008, B & H filed a Motion in Limine

(Motion) generally seeking to exclude as being immaterial any

evidence regarding a concrete batch plant, which B & H proposes

to construct on the property if the amendment is found to be in

compliance, or its compatibility with adjacent land uses on the

ground these issues are addressed by City land development

regulations, which are not a part of this proceeding. A

Response in opposition to the Motion was filed by Petitioner on

February 12, 2008. Argument on the Motion was heard at the

hearing, and the Motion was denied without prejudice to the

parties presenting further arguments on the relevancy of such

evidence in their post-hearing filings. The parties were also

allowed to present evidence on these matters at the hearing.

At the final hearing, Petitioner presented the testimony of

Ronald Russell, an employee of B & H; Mike Carroll, project

manager and vice-president of Integrated Engineering Solutions,

LLC, a subsidiary of B & H; Kermit H. George, a land surveyor

for Integrated Engineering Solutions, LLC; Eric Davis, a

planning official for the City; Jack E. Dorman, an outside

planning consultant for the City and accepted as an expert;

J. Cloyce Darnell, a professional engineer and accepted as an

expert; and Roger Wilburn, a professional planner and accepted

as an expert. Also, she offered Petitioner's Exhibits A-N,

which were received in evidence. Intervenor presented the

testimony of Petitioner; Teresa Gaillard, a Geographic

Information System mapping analyst for the City; Mike Wing,

Administrative Services Director for the City; Mike Carroll; and

Jack E. Dorman. Although the City presented no witnesses or

separate exhibits, it has adopted Intervenor's evidence. The

parties also offered Joint Exhibits A-H and J-L, which were

received in evidence. Finally, the following members of the

public, all of whom live in Antioch Estates, offered testimony

regarding the plan amendment: Jennifer Stegner, Claire Erk,

William Rozofsky, Robert Felth, and Cynthia Seidel. Ms. Erk

offered Public Exhibit 1, which was received in evidence.

Except for witness Felth, each witness opposed the change in

land use. Mr. Felth supports the amendment so long as B & H

completes certain promised infrastructure improvements totaling

$458,000.00, including the paving of 1.2 miles of two dirt roads

near the subject property, Point Center Road and Rhett Enzor

Road. The parties further stipulated that other members of the

public (numbering around ten) who attended the hearing but did

not testify would essentially testify to the same facts as those

given by witnesses Stedner and Erk, who opposed the application.

A Transcript of the hearing (two volumes) was filed on

March 13, 2008. Petitioner and Intervenor filed Proposed

Recommended Orders on March 24, 2008, and they have been

considered by the undersigned in the preparation of this

Recommended Order. Petitioner's Proposed Recommended Order was

accompanied by an unopposed Motion to Exceed 40 Page Limit,

which is hereby granted. By letter dated March 25, 2008, the

City adopted Intervenor's Proposed Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of

fact are determined:

A. Background

1. B & H is a Florida corporation which owns and operates

a number of concrete batch plants and a surveying and

engineering company known as Integrated Engineering Solutions,

LLC. The parties have stipulated that B & H is the owner of

property within the City and submitted comments to the City in

support of the change in the land use prior to the adoption of

the plan amendment. As such, B & H is an affected person and

has standing to participate in this matter.

2. In 2005, B & H purchased a 75.56-acre tract of vacant,

undeveloped land in the unincorporated part of Okaloosa County

(County), just southwest of the City. The parcel is generally

bounded on its northern side by Interstate 10 (I-10) and by a

150-foot wide Gulf Power Company easement on its southern

boundary. All of the property carried a County land use

designation of RR, which limits development to one residential

unit per five acres. See Future Land Use Element (FLUE) Policy

10.1.e. (Petitioner's Exhibit A).

3. After B & H purchased the property, it applied for

development approval (including a land use change from RR to an

industrial) from the County. In the face of substantial public

opposition, and a negative staff recommendation, B & H withdrew

its application during a County Planning Commission hearing on

April 12, 2007. (The County staff noted that the property "is

located in the immediate vicinity of . . . a residential

subdivision"; that a wide range of industrial uses would be

allowed on the property if it was changed to IN; that the

requested action would have the effect of "spot zoning"; that

there is no shortage of industrial-zoned lands in other areas of

the County; and that "the requested action is not compatible

with the proximate residential subdivision and does not result

in an appropriate transition of uses, densities, and intensities

as expressed in [FLUE] Policy 4.4.")

4. Shortly thereafter, B & H filed a petition for

voluntary annexation with the City. On August 27, 2007, the

City annexed a 9.98-acre parcel of B & H's land lying in the

eastern half of the larger parcel. (The remainder of the larger

parcel remains in the County.) B & H then filed an application

in the form of a small-scale development amendment seeking a

change in the land use on the property from RR to IN. Because

the size of the parcel was less than 10 acres, the change in

land use was accomplished by this type of amendment, which is

not reviewed by the Department of Community Affairs

(Department). See § 163.3187(1)(c)1. and (3)(a), Fla. Stat.

5. According to FLUE Policy 7.A.3.4.f. in the City's Plan,

the IN category

is designed to protect lands for production

and distribution of goods and for other

industrial activities. A wide range of

industrial uses and commercial uses are

allowed in this category. Specific uses

include light and heavy manufacturing,

assembly, training facilities, vehicle

repair (including body work and painting),

packaging, processing, wholesale business

and warehousing, truck terminals, borrow

pits, asphalt/concrete plants, heavy

equipment sales, service and/or rentals, and

other uses similar to those listed herein.

Residential uses are prohibited except as an

accessory to a permitted use.

6. In addition to the application for a change in the

FLUM, B & H submitted an application for site plan approval for

a concrete batch plant to be located on the southern end of the

subject property. This use would be consistent with the IN

category. However, until this proceeding is concluded, the site

plan will not be reviewed, modified, or approved by the City,

and therefore any development provisions incorporated therein

are not final. Further, the proposed use (a concrete batch

plant) requires the issuance of a permit by the Department of

Environmental Protection (DEP).

7. On September 9, 2007, the City Planning Commission

conducted a public hearing to consider the amendment and voted

4-1 to recommend approval of the application to the City

Council.

8. On October 8, 2007, a first reading of Ordinance No.

1370 implementing the amendment occurred at the City Council

meeting.

9. On October 22, 2007, a public hearing was held before

the City Council. The City Council voted 3-2 to deny the

amendment.

10. On November 13, 2007, the City Council conducted

another public hearing for the first reading of the amendment.

11. On November 26, 2007, the City Council conducted a

second public hearing on the amendment and adopted Ordinance No.

1370 enacting the amendment. (New zoning on the land will not

be imposed until or unless the plan amendment here is found to

be in compliance.) Although not subject to review by the

Department, the following day the City sent a copy of the

adopted Ordinance to the Department.

12. On December 24, 2007, Petitioner, who resides in

Antioch Estates, a nearby residential subdivision located within

the City, filed her Petition with DOAH. On February 7, 2008,

she moved to amend the Petition and authorization to do so was

granted by Order dated February 8, 2008. In her Amended

Petition, she generally contended that the amendment is not in

compliance because it is internally inconsistent with other Plan

provisions in several respects; the amendment is not supported

by adequate data and analysis; the property being reclassified

is greater than 10 acres in size and therefore cannot qualify as

a small-scale development amendment; the City did not analyze

the financial feasibility of the amendment; and the City failed

to conduct the necessary intergovernmental coordination and

review. The parties have stipulated that Petitioner resides

within the City and offered comments in opposition to the

amendment prior to its adoption. As such, she is an affected

person and has standing to challenge the amendment.

13. At the hearing, Petitioner, who is a planner for the

City of Destin but resides in Crestview, acknowledged that

before she filed her initial Petition, her husband was contacted

by a representative of Couch Ready Mix USA (Couch), a non-party

who operates a concrete batch plant 0.8 miles southeast of

Antioch Estates on Old Antioch Road, and with whom B & H would

compete if the application is approved and a new concrete batch

plant constructed on the site. However, Petitioner stated that

she would have filed a petition even if her husband had not been

contacted by Couch. Even so, it is fair to infer from the

evidence that funding for Petitioner's counsel and two experts

was provided by Couch.

B. The Subject Property

14. The subject property is a 9.98-acre parcel bordered on

the north by I-10 and on the east, west, and south by property

owned by B & H, all of which is designated RR and zoned

Agricultural. Directly to the east of the larger B & H parcel

is a 70-foot strip of vacant land owned by Rhett Enzor, a non-

party whose land stretches from I-10 southward to the Gulf Power

easement. The Enzor property also carries a RR land use

designation and Agricultural zoning. Besides the 70-foot strip

on the eastern side, Mr. Enzor owns the other property that

surrounds the larger parcel to the south and west; however, the

extent of that property is not of record.

15. Just to the east-northeast and adjacent to the Enzor

property is a residential subdivision (Antioch Estates)

comprised of around 125 homes. The subdivision is divided into

two sections - the larger section lying north of I-10 and the

smaller section located just south of I-10. It is unclear

whether the entire subdivision has 125 units, or if the southern

portion alone has that number. In any event, Petitioner and

members of the public who offered comments at the hearing reside

in the southern portion of the subdivision and oppose the

application. At its closest point, the western boundary of the

subdivision (particularly lots 51-55) appears to be slightly

more than 600 feet from the 9.98-acre parcel, but no more than

70 feet or so from the eastern boundary of the larger parcel.

The distance to the proposed concrete batch plant, which will

lie in the south-southwest end of the subject property, is

slightly less than one-quarter mile. An elementary school

(Antioch Elementary School) with an enrollment of around 800

students and 100 staff, built sometime after 1996, is located

just east of Antioch Estates. A former borrow pit, Blocker Pit,

lies south of the subdivision, while an active borrow pit,

Garret Pit, lies around one-half mile or so southeast of the

subdivision. Antioch Estates is classified by the City as Low

Density Residential (LDR), while the school is in the Public Use

land use category. Under FLUE Policy 7.A.3.4.a., the LDR

category "is limited to residential uses, customary accessory

uses, recreation uses, churches and places of worship and

planned unit developments. Non-profit and civic organizations

may be permitted by special exception. This category is

intended for single family homes which may be developed with up

to six (6) units per gross acre."

16. Antioch Road appears to be a major arterial road

running in a northwest-southeast direction (crossing over or

under I-10) just east of the elementary school. (Less than a

mile southeast of the school, Antioch Road becomes P.J. Adams

Parkway.) All vehicles wishing to access the school, Antioch

Estates, or the 9.98-parcel (as well as the larger B & H parcel)

must do so by turning off of Antioch Road onto Garret Pit Road,

a County-maintained road which intersects with Antioch Road just

south of I-10. Within a short distance, Garret Pit Road

intersects with Whitehurst Lane, a paved road which runs in a

northwest direction from Garret Pit Road to the school and

eventually makes a loop in the subdivision.

17. At the Whitehurst Lane intersection, Garret Pit Road

turns into a dirt road. Vehicles traveling to B & H's property

continue south on Garret Pit Road for 300 feet or so until it

intersects with Point Center Road, a privately-owned, unplatted

and undedicated dirt road which runs directly west from Garrett

Pit Road (and roughly parallel to I-10) through the Enzor strip

and into the eastern side of the B & H property. From there, it

appears that vehicles would turn south for a short distance on

Borrow Pit Road (also referred to as Barrow Pit Road on certain

map exhibits), another dirt road which eventually turns westward

when it reaches the southern boundary of B & H property. The

9.98-acre parcel is around 66 feet north of Borrow Point Road.

According to a B & H witness, Point Center Road and Borrow Pit

Road are not actually roads, but are more akin to dirt trails

which trucks now use to reach the excavating and land fill

sites. Finally, Point Center Road passes approximately 140 feet

south of, and parallel to, the southern boundary of Antioch

Estates.

18. When the subject property was annexed into the City,

it retained the County FLUM designation of RR and zoning of

Agricultural. The FLUM and zoning designations are retained

until a plan amendment and rezoning is approved by the City.

Under the County's Plan, residential uses in RR must not exceed

one unit per five acres.

19. There is currently an inactive borrow pit (covering

around six acres) on the southern part of the 9.98-acre parcel,

which extends westward into the larger parcel. B & H says it

has no intention of resuming this operation. A small storage

facility with "manholes," "pipe," and other "equipment" sits on

the southwestern corner of the property, while a small wetlands

area of less than an acre occupies the northwestern corner.

20. To the west of the subject parcel on the northwestern

corner of the larger parcel is an active, permitted 7.5-acre

Construction & Demolition (C & D) landfill. There is some

ambiguity in the testimony over the actual size of the landfill;

however, in DEP's letter of intent dated March 17, 2006, which

transferred Permit No. 0002800-002-SO from the original owner

(Point Center, Inc.) to B & H, it stated that B & H is

authorized to operate a 7.5-acre disposal unit until March 17,

2010. See Petitioner's Exhibit B. Although the useful life of

the existing C & D landfill will eventually run out, at the

hearing B & H's Project Manager stated that the company has an

application pending with DEP to expand the landfill. The status

of that matter is unknown. Expansion of a non-conforming land

use, however, may be problematic. See Finding of Fact 21,

infra . Besides the active C & D landfill, B & H is also

periodically retrieving fill dirt from the larger parcel for

site work operations, using up to 30 dump trucks for this work.

According to a witness, the larger parcel still has around

3,000,000 cubic yards of usable dirt. Whether B & H is

authorized to conduct borrow pit operations on the larger parcel

is not of record. More than likely, once the landfill is used

up (or no later than March 2010 when the permit expires unless

it is renewed), the non-conforming use will have run its course,

and the RR designation will apply to all future activities on

the larger parcel.

21. Although the entire B & H parcel was classified as RR,

the borrow pit and C & D landfill are non-conforming uses under

the County's Plan, presumably having been in existence before

the County's Plan was adopted. A non-conforming use is one

where the actual use of the property is not consistent with the

future land use of the comprehensive plan or not consistent with

the zoning of the property. There are very strict parameters as

to whether or not you can change or modify a non-conforming use.

Normally, changes to non-conforming uses are not allowed. A

non-conforming use can not be expanded.

22. B & H has acknowledged that it intends to seek

annexation of the entire larger parcel into the City. With the

exception of the C & D landfill, it is also planning to request

a FLUM amendment from RR to IN for the remainder of the larger

parcel. Thus, if the instant application is approved, it is

fair to say that this action will be the forerunner of an effort

to reclassify the entire 75.56 acres (except the 7.5-acre

landfill) as industrial property, leaving only the 70-foot strip

of Enzor property as a RR buffer between the industrial land and

the subdivision.

C. Petitioner's Objections

a. Ten-Acre Maximum

23. Petitioner's first objection is that the amendment

does not meet the statutory criteria for a small-scale

development amendment because the use involves more than 10

acres. See § 163.3187(1)(c)1., Fla. Stat. ("[t]he proposed

amendment [must involve] a use of 10 acres or fewer").

Petitioner argues that parcel size is not the only determinant

of what must be included in the amendment, and that any acreage

that is integral to the design and operation of the proposed use

is considered in determining whether the small scale development

amendment criteria are met. Petitioner argues that B & H failed

to include in the amendment all acreage that is integral to the

design and operation of the proposed use.

24. It is undisputed that the subject parcel is 9.98

acres, as determined by Kermit George, who sealed the property's

survey for B & H, and as confirmed by City employee Teresa

Gaillard by using the Autocad software program.

25. Relying primarily upon site plans for the concrete

batch plant filed by B & H with the City, however, Petitioner

contends that the acreage (.0604 acres) related to a 66-foot

driveway which will access the south side of the property from

Borrow Pit Road, the acreage (1.607 acres) related to the use of

Borrow Pit Road after turning off of Point Center Road, the

acreage (.052 acres) for an easement necessary to run a County

water line from B & H's southern property line to the smaller

parcel, and the 150-foot buffer on the east side of the site

(which will be required by the City when or if a concrete batch

plant is permitted and built) must be included in the total

amount of acreage. Excluding the buffer, Petitioner has

calculated this additional land to total 1.7194 acres.

Petitioner argues that even if only one of the above items is

included, it would cause the size of the amendment to exceed ten

acres and lose its status as a small-scale development

amendment.

26. It is fair to infer from the evidence that the dirt

trail that makes up Borrow Pit Road, as well as the 66-foot

trail from Borrow Pit Road to the subject property, are already

being used by B & H trucks or other vehicles to access the

landfill and borrow pit area. Therefore, this "infrastructure"

will be used for other purposes, irrespective of whether

development on the 9.98-acre parcel occurs. At the same time,

the City's planning expert noted that good planning practices do

not require that the land necessary to access a parcel with

roads or utilities, and off-site buffering, be included in

calculating whether the "use" of the parcel exceeds 10 acres.

Except as to the buffering issue, this interpretation of the

statutory language is more logical and reasonable than

Petitioner's approach and is hereby accepted. Compare Parker v.

St. Johns County et al. , DOAH Case No. 02-2658, 2003 Fla. ENV

LEXIS 34 at *12 (DOAH Dec. 17, 2002, DCA Feb. 27, 2003)("[i]t

would be unreasonable to construe Section 163.3187(1)(c)1.,

Florida Statutes, as requiring local governments and applicants

to calculate pro rata share impacts of off-site utilities,

determine proportionate acreage based on those impacts, and

apply those figures to the small scale acreage calculations").

27. The issue of whether the acreage related to the off-

site buffering should be included as a use is not so clear cut.

The City Land Development Code (LDC) requires that there be

appropriate buffering between industrial and residential land

uses. While the pertinent portion of the LDC is not of record,

the evidence submitted by B & H and the City shows that an

approximate 150-foot buffer will be necessary on the eastern

side of the parcel. A City witness testified that the buffering

"would normally take place upon the property being developed."

However, because the use will occur in an existing borrow pit

(which is 20 feet below the surface of the adjacent land), the

City concluded that it would be more appropriate to place any

required vegetative buffer and fencing off-site on the edge of

the larger parcel, also owned by B & H. The buffering is an

integral part of the project being placed on the parcel. In

other words, the plant cannot be built without the required

buffering. Therefore, the land on which the buffer and fence

will be placed should be included as an integral part of the

property's use. Compare St. George Plantation Owners'

Association, Inc. v. Franklin County et al. , DOAH Case No. 96-

5124GM, 1997 Fla. ENV LEXIS 37 at *18-20 (DOAH Feb. 16, 1997,

Admin. Comm. Mar. 25, 1997) where three off-site absorption beds

required to serve a wastewater treatment plant were considered

an integral part of the facility, thereby increasing the size of

the amendment's "use" from 9.6 to 14.6 acres. By adding the

acreage for the 150-foot off-site buffer and fencing to the 9.98

acres, the use of the property that is the subject of the

amendment clearly involves more than 10 acres and cannot qualify

as a small-scale development amendment.

b. Data and Analysis

28. Petitioner also objects to the amen dment as not being

supported by relevant and appropriate data and analysis, as

required by Section 163.3177(8) and (10)(e), Florida Statutes,

and Florida Administrative Code Rule 9J-5.005(2). Paragraph

(2)(a) of the rule requires that "plan amendments . . . shall be

based upon relevant and appropriate data and the analyses

applicable to each element." To be based on data "means to

react to it in an appropriate way and to the extent necessary

indicated by the data available on that particular subject at

the time of the adoption of the . . . plan amendment at issue."

Id.

29. Petitioner points out that B & H has acknowledged (by

way of answers to Requests for Admissions and stipulated facts

in its Motion in Limine) that it did not present to the City any

studies or data related to noise, traffic, property values, air

pollution, or protected natural resources that may be impacted

by, or attributable to, a concrete batch plant being placed on

the subject property. She also argues that to the extent an

analysis was made in the City's staff report (as to

infrastructure demands, protection of wetlands and natural

resources, traffic, financial feasibility, and compatibility),

it was based on incorrect data or was otherwise insufficient.

30. The City's planning consultant prepared the staff

report for the City, which summarizes the data and analysis

supporting the amendment. See § 1, Joint Exhibit E, which is a

six and one-half page staff report. The analysis was performed

on the premise that a concrete batch plant would be located on

the subject property. The staff report indicates that "[t]he

purpose of the amendment is to provide for the development of a

concrete batch plant." See page 1, § 1, Joint Exhibit E.

31. The staff report contains in summary form the data and

analysis supporting the amendment. Section 1 reflects that the

City relied upon (a) FLUM map sheet 7-5, which indicated that

all adjacent lands except I-10 on the north side are in the RR

land use category while lands in the vicinity are classified as

LDR, MDR, Conservation, Public Lands, Industrial, and

Commercial; (b) data reflecting that the existing use of land on

the subject property is vacant and undeveloped; the larger B & H

parcel contains a C & D landfill and is otherwise vacant;

adjacent properties include numerous single-family homes and

subdivisions, existing and planned multi-family projects,

planned commercial uses, and a school; and wetlands are located

in the northwest corner of the subject property; (c) data

showing that the type of development on the property will be a

concrete batch plant; (d) data showing that the amendment will

"result in a significant decrease in potential demands on all

City infrastructure systems" (potable water, sewer, solid waste,

recreation/open space, drainage, and traffic) because it will

eliminate potential future demands for residential units that

would otherwise be allowed on the RR property; (e) data

reflecting that the change in land use is compatible and

suitable with adjacent lands because the proposed facility is

"not adjacent to any homes, schools or other similar uses," and

the adjacent properties are owned by B & H; (f) data showing

that the site is generally level with an average elevation of

100 feet; (g) data in the Soil Survey of Okaloosa County,

Florida indicating that the soil "is suited for the planned use

and development of the subject property"; (h) data reflecting

that there is "a small area with wetland soils" in the northwest

corner of the property which will not be developed; and (i) data

indicating that there are no historic and archeological

resources on the property.

32. The consultant also reviewed the current Plan to

determine if the plan amendment was consistent with all relevant

provisions and concluded that the "amendment is consistent with

and furthers the adopted Comprehensive Plan." He added that at

the same time the small-scale amendment was being considered,

the City was also considering a set of large-scale amendments

to its Plan (presumably to the FLUM), and the data and analysis

used for those amendments provide further support for the

amendment being challenged. However, the nature of the large-

scale amendments, and their underlying data and analysis, are

not of record or otherwise identified. Finally, the City did

not perform a concurrency analysis since it says that the

Department no longer requires one at the amendment stage and

instead defers that task until the development process begins.

Whether the City specifically considered the concerns noted in

the County's staff report recommending a denial of the land use

change is not clear. However, the staff report discounted the

notion that the amendment would encourage urban sprawl (or "spot

zoning" in the words of the County staff report) since it

promotes urban infill development.

33. In response to a criticism by Petitioner, at hearing

the City's consultant utilized further data from City sources,

presumably available at the time the amendment was adopted,

which indicate that the total available capacity for new

customer usage from the City's water system is 3.2 million

gallons per day, or far more than is necessary to meet the water

requirements related to the proposed industrial usage. Without

providing specifics, the consultant also opined that if the

County is called upon to provide water to the site, as B & H now

intends, it likewise has sufficient capacity to do so.

34. In analyzing the impacts on infrastructure, the City

assumed that a change from RR to IN, and the placement of a

concrete batch plant on the property, would "result in a

significant decrease in potential demands on all City

infrastructure systems." The more persuasive evidence shows,

however, that when comparing the new traffic that would be

generated by potential residential units on the property versus

a concrete batch plan, the latter would probably generate an

increase of at least 110 vehicle trips per day, most by heavy

trucks, which is more than five times the number of trips used

in the City's analysis. In contrast, the staff report stated

that the projected demands from development of the plant "[i]n

theory, [could result in] up to 20 trucks trips per day" but

this high a number was "not likely." In this respect, the data

being used and analyzed were not correct or were incomplete, and

the City's assumptions drawn from that data were flawed. Thus,

as to these impacts, the amendment is not supported by adequate

data and analysis. Although the staff report also failed to

reflect the increased water usage that would be generated by the

concrete batch plant, at hearing the City relied upon available

data to show that both the City and County had sufficient

capacity to provide water service for the plant.

35. To a certain degree, compatibility and suitability

overlap one another. "Compatibility" is defined in Florida

Administrative Code Rule 9J-5.003(23) as "a condition in which

land uses or conditions can coexist in relative proximity to

each other in a stable fashion over time such that no use or

condition is unduly negatively impacted directly or indirectly

by another use or condition." This criterion is used to

evaluate whether the proposed industrial land use is compatible

with the uses on nearby or adjacent properties. On the other

hand, subsection (128) of the rule defines "suitability" as "the

degree to which the existing characteristics and limitations of

land and water are compatible with a proposed use or

development." This criterion requires a determination of

whether the industrial land use category is suitable in this

particular area, given the existing characteristics of the land.

36. After reviewing and analyzing data on the issue of

suitability and compatibility, the City concluded that because

B & H owned all the lands around the site (except on the

northern boundary which adjoined I-10), "adverse issues [not

otherwise identified in the report] associated with

compatibility should be minimized." To further support its

finding of suitability and compatibility, the report went on to

state that the subject property "is not adjacent to any homes,

schools or other similar uses." While the data used by the City

(such as the FLUM map) were adequate, the City did not react to

it in an appropriate manner. The City is correct in concluding

that a change to an industrial land use category may be suitable

on land where a non-conforming borrow pit already exists.

However, because the proposed industrial use is in "relative

proximity" to rural residential land on three of its sides, a

large residential subdivision that begins no more than 200 yards

away, an access road used by numerous heavy trucks which lies

only 140 feet south of the subdivision, and a single outlet for

all traffic exiting the subdivision, school, and B & H property,

it is fair to infer that there will be a direct or indirect

negative impact on those adjacent or nearby uses in

contravention of Florida Administrative Code Rule 9J-5.003(123).

In this respect, the amendment is not supported by adequate data

and analysis.

37. The City's recognition of the wetlands area on the

subject property, and its finding in the report that such lands

would be protected if development occurs, constitutes sufficient

data and analysis and appropriate reaction thereto to satisfy

the statute and rule. Petitioner also contends there was no

analysis related to the fact that Point Center Road, the private

road used to access the parcel, crosses wetlands "at the bottom

of the hills," and the wetlands will be impacted by the change.

As pointed out at hearing, however, the road has been there

"forever," and filling of the adjacent wetlands occurred many

years ago, or long before B & H acquired the property. Other

than paving the road if the land change is approved, no other

"filling" will occur, and the City's assessment of this matter

was sufficient.

38. All other contentions by Petitioner regarding the lack

of sufficient data and analysis to support the amendment have

been considered and rejected.

c. Financial Feasibility

39. Section 163.3177(2), Florida Statutes, requires that

"the comprehensive plan shall be financially feasible." Relying

upon this statute, Petitioner contends that the City failed to

analyze whether the amendment was financially feasible.

According to Petitioner's expert, when a FLUM change is made, a

financial feasibility analysis must be made, which requires that

the local government make a facility-based analysis to

demonstrate whether the local government has sufficient capacity

for the change. Specifically, she argues that there is no

commitment from the County to provide water, and that the City

did not analyze whether the City or County has the capacity to

provide sufficient water to serve a concrete batch plant.

40. Although the staff report addresses this issue in

summary fashion and without specifics, at hearing the City's

planning consultant testified, without contradiction, that the

total available capacity from the City's water system is 3.2

million gallons per day, or far more than is necessary to meet

the potential water requirements of a concrete batch plant on

the site. He also opined, without contradiction, that if the

County is called upon to provide the water, it likewise has

sufficient capacity to do so. Based upon this analysis of

available data, it is found that financial feasibility was

adequately addressed by the city.

d. Intergovernmental Coordination

41. Petitioner next contends that the City did not

evaluate and coordinate the amendment with the County, as

required by Section 163.3177(4)(a), Florida Statutes, Florida

Administrative Code Rule 9J-5.015, and the Intergovernmental

Coordination Element (ICE) of the City's Plan. The statute

provides in part that "[c]oordination of the local comprehensive

plan with the comprehensive plans of . . . the county . . .

shall be a major objective of the comprehensive planning

process." The two most relevant provisions in the Plan on this

subject, both very general in nature, are ICE Goal 13.A., which

states that a goal of the Plan is to "[p]rovide coordination of

this plan (ordinance) with Okaloosa County, other local

governments (as appropriate) and other governmental agencies

providing services within the City[,]" and ICE Objective

13.A.1., which provides that the City shall "review, on an

annual basis, actions that have taken place to coordinate the

Comprehensive Plan of Crestview with the Plans of other units of

government and the Okaloosa County School Board."

42. Although the County was given constructive notice of

B & H's annexation request through the publication of a notice

in a local newspaper on July 7, 2007, there is no evidence that

the County was given specific notice that an application for a

change in the FLUM had been filed by B & H and was being

processed by the City, or that the County was afforded an

opportunity to provide input into that process, if it chose to

do so. Given the unique circumstances here, coordination is

especially important since the subject property is surrounded on

three sides by County land designated as RR with Agricultural

zoning, the requested change would create a small industrial

pocket in the middle of County RR land, and the County staff had

just prepared a report recommending denial of the same change

before the City annexed the property. While the cited statute,

rule, and Plan provisions clearly do not contemplate that

adjacent local governments have veto power over the City's

ability to enact plan amendments, or that the City is required

to accept alternative suggestions proposed by other entities, at

a minimum they contemplate that notice of changes be given to

adjacent local governments, and that those local governments be

afforded the right to offer input, if any, prior to

consideration of the amendment. See , e.g. , City of West Palm

Beach et al. v. Department of Community Affairs et al. , DOAH

Case Nos. 04-4336GM, 04-4337GM, and 04-4650GM, 2005 Fla. ENV

LEXIS 192 at *34-35 (DOAH July 18, 2005, DCA Oct. 21, 2005).

Because there was no coordination here, even minimal, the

adoption of the plan amendment contravened the cited statute,

rule, and ICE Goal 13.A.

e. Internal Consistency

43. Petitioner next argues that, contrary to the

requirement in Section 163.3187(2), Florida Statutes, that there

be "internal consistency" within a plan, the amendment is

inconsistent with the Plan in the following respects: quality

of life (Legal Element Section 1.04); compatibility (FLUE Policy

7.A.1.2.c.); school siting (FLUE Policy 7.A.9.1.); and wetlands

impacts (Conservation Element Goal 11.A and Objective 11.A.2.).

44. Petitioner first contends that the amendment is

inconsistent with the stated general intent and purpose of the

Plan, which is found in Section 1.04 of the Plan's Legal

Element. That Element contains a "whereas" clause, the Plan's

title, jurisdiction for adopting the Plan, the City Council's

intent in adopting the Plan, and its effective date. The

Element indicates that it is intended to implement Florida

Administrative Code Rule 9J-5.001, which sets forth the broad

purposes of Florida Administrative Code Rule Chapter 9J-5.

Section 1.04 provides in relevant part that the Plan is intended

to "maintain and improve the quality of life for all citizens of

the City" and to protect and promote the "public health, safety

and general welfare of its citizens." This salutary language is

so broad and aspirational in nature that the undersigned does

not construe it, or other provisions in the Legal Element, as an

appropriate basis for finding an amendment not in compliance.

Petitioner's argument is accordingly rejected.

45. Petitioner also argues that the amendment is

inconsistent with the Plan's requirement that compatibility of

adjacent land uses be ensured. FLUE Policy 7.A.1.2.c. appears

to be the only Plan provision specifically dealing with this

issue and it provides that the LDC shall contain detailed

provisions to "ensure compatibility of adjacent land uses."

B & H and the City take the position that during the zoning and

development phase of the process (rather than during the plan

amendment stage) the LDC would be used to ensure compatibility,

as required by the Plan. However, the issue of compatibility

was analyzed by the City and presented to the City Council, and

the staff report contains an entire section on compatibility and

suitability. See Finding of Fact 30, supra ; § 1, pages 3-4,

Joint Exhibit E. Therefore, it is appropriate to consider at

the plan amendment stage whether the change in land use is

compatible with adjacent or nearby properties.

46. As noted earlier, Antioch Estates is a low-density

residential subdivision directly to the east of the B & H

parcel. At its closest point, the subject property is around

200 yards from the subdivision. The distance from the

subdivision to the proposed concrete batch plant is less than a

quarter-mile. At the same time, the road over which the heavy

trucks will travel to and from the industrial site is no more

than 140 feet south of the southern boundary of the subdivision,

and the connecting road eventually terminates at an outlet onto

Antioch Road shared by traffic from the subdivision and school.

Finally, B & H acknowledges that the proposed change here is a

precursor to a request for annexation of the larger parcel into

the City and a change in the land use on the larger parcel

(except for the land fill) to industrial. This would leave the

Enzor property (which is only 70 feet wide) as the sole

remaining RR buffer with Antioch Estates. Given these

considerations, the change in land use will not "[e]nsure

compatibility of adjacent land uses," as required by FLUE Policy

7.A.1.2.

47. Finally, Petitioner contends that the amendment is

inconsistent with FLUE Policy 7.A.9.1.1., which provides that a

" proposed school location shall be compatible with existing and

projected uses of adjacent property." (Emphasis added). Since

the Antioch Elementary School already exists, it appears that

this provision has no application. For the same reason,

Petitioner's contention that the amendment contravenes

Section 1013.36(3), Florida Statutes, is also rejected. That

statute requires that a new school should not be sited adjacent

to factories or other properties from which noise, odors, or

other disturbances would be likely to interfere with the

educational program. While compatibility issues with existing

schools are relevant when a map change is being made, they can

only be considered in the context of Plan provisions which

directly apply to those issues.

D. Summary

48. In summary, because the amendment involves a use

of more than 10 acres, it does not meet the criteria in

Section 163.3187(1)(c)1., Florida Statutes; the amendment is not

supported by adequate data and analysis with respect to impacts

on infrastructure (traffic) and compatibility; the amendment

contravenes the statutory, rule, and Plan requirement that it be

coordinated with other local governments; and it is internally

inconsistent with FLUE Policy 7.A.1.2.c., which requires

compatibility of adjacent uses. All other contentions raised by

Petitioner have been considered and rejected.

CONCLUSIONS OF LAW

49. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties hereto

pursuant to Section 163.3187(3), Florida Statutes.

50. Section 163.3187(3)(a), Florida Statutes, provides in

relevant part that "[a]ny affected person may file a petition

with [DOAH] pursuant to ss. 120.569 and 120.57 to request a

hearing to challenge the compliance of a small scale development

amendment . . . ." The statute goes on to provide that "the

parties to a hearing held pursuant to this subsection shall be

the petitioner, the local government, and any intervenor." The

parties have stipulated that Petitioner and Intervenor own

property or reside within the City and submitted oral or written

comments to the City prior to the amendment's adoption.

Therefore, Petitioner and Intervenor are affected persons within

the meaning of Section 163.3184(1)(a), Florida Statutes, and

have standing to participate in this proceeding.

51. Under Section 163.3187(3)(a), Florida Statutes, the

City's determination that the small scale amendment is in

compliance is presumed to be correct. Further, this

determination will be sustained unless "it is shown by a

preponderance of the evidence that the amendment is not in

compliance with the requirements of this act." Therefore, the

test is whether the evidence supports or contradicts the

determination of the City. Denig v. Town of Pomona Park , DOAH

Case No. 01-4845GM, 2002 Fla. ENV LEXIS 220 at *4-5 (DOAH

June 18, 2002, Admin. Comm. Oct. 23, 2002). This specific

statutory burden of proof has been applied in this proceeding.

52. The Amended Petition alleges that the use of the

property involves more than 10 acres in contravention of

Section 163.3187(1)(c)1., Florida Statutes; that the amendment

is not supported by adequate data and analysis in several

respects; that the City failed to coordinate with the County in

adopting the amendment; that the amendment is not financially

(economically) feasible; and that the amendment conflicts with

various provisions within the Plan.

53. For the reasons given in the Findings of Fact portion

of this Recommended Order, the preponderance of the evidence

supports a conclusion that the proposed amendment involves a use

of more than 10 acres in violation of Section 163.3187(1)(c)1.,

Florida Statutes; that the amendment is not supported by

adequate data and analysis as to traffic impacts and

compatibility in contravention of Section 163.3177(8) and

(10)(e), Florida Statutes, and Florida Administrative Code Rule

9J-5.005(2); that the City did not coordinate with the County in

adopting the amendment, as required by Section 163.3177(4)(a),

Florida Statutes, Florida Administrative Code Rule 9J-5.015, and

the Plan's ICE; and that the amendment is internally

inconsistent with FLUE Policy 7.A.1.2.c., which requires that

adjacent land uses be compatible. Accordingly, it is concluded

that in these respects Petitioner has met her burden of showing

that the amendment is not in compliance with the requirements of

Chapter 163, Florida Statutes. Denig , supra .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Administration Commission enter a

final order determining that the small-scale development

amendment adopted by the City by Ordinance No. 1370 on

November 26, 2007, is not in compliance.

DONE AND ENTERED this 21st day of April, 2008, in

Tallahassee, Leon County, Florida.

S

DONALD R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 21st day of April, 2008.

ENDNOTE

1/ All statutory references are to Florida Statutes (2007).

COPIES FURNISHED:

Barbara Leighty, Clerk

Growth Management and Strategic Planning

The Capitol, Room 2105

Tallahassee, Florida 32399-0001

Jason Gonzalez, General Counsel

Office of the Governor

The Capitol, Room 209

Tallahassee, Florida 32399-0001

Shaw P. Stiller, General Counsel

Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 325

Tallahassee, Florida 32399-2100

Silvia Morell Alderman, Esquire

Akerman Senterfitt

106 East College Avenue, Suite 1200

Tallahassee, Florida 32301-7748

Ben L. Holley, Esquire

City Attorney

Post Office Box 1238

Crestview, Florida 32356-1238

William J. Dunaway, Esquire

Partington, Hart, Larry,

Bond & Stackhouse

Post Office Box 13010

Pensacola, Florida 32591-3010

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days of the date of this Recommended Order. Any exceptions to

this Recommended Order should be filed with the agency that will

render a final order in this matter.