17-005530GM Jacqueline Rogers vs. Escambia County Status: Closed Recommended Order on Thursday, May 10, 2018.

Summary: Petitioner failed to prove that amendment to County Section Plan was not in compliance.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JACQUELINE ROGERS,

Petitioner,

vs. Case No. 17 - 5530GM

ESCAMBIA COUNTY,

Respondent.

_______________________________/

RECOMMENDED ORDER

Administrative Law Judge D. R. Alexander co nducted a final

hearing in this case by video teleconference at sites in

Pensacola and Tallahassee, Florida, on February 19, 2018.

APPEARANCES

For Petitioner: Jacqueline Rogers, pro se

1420 Ridge Way

Cantonment, Florida 32533 - 7991

For Respondent: Meredith D. Crawford, Esquire

Assistant County Attorney

221 Palafox Place, Suite 430

Pensacola, Florida 32502 - 5837

STATEMENT OF THE ISSUE

The issue is whether the plan amendm ent adopted by

Escambia County (County) by Ordina nce No. 2017 - 53 on

September 7, 2017, is in compliance.

PRELIMINARY STATEMENT

On September 7, 2017, the County adopted Ordinance

No. 2017 - 53, which amended its Comprehensive Plan (Plan) by

permittin g an 8.7 - acre parcel to withdraw from the County Mid -

West Optional Sector Plan and assigning the parcel a new Mixed -

Use Suburban (MU - S) land use designation. The effect of the

amendment is to allow more intense development on the property.

On October 6, 2017, Petitioner, who resides near the subject

property, filed her Petition for Formal Administrative Hearing

(Petition) with the Division of Administrative Hearings (DOAH).

At the hearing, Petitioner presented the testimony of eight

witnesses. Petition er's Exhibits 1 through 28 were accepted in

evidence. The County presented the testimony of three

witnesses. Also, it offered County Exhibits 2, 3, 5 through 26,

31 through 35, 37, 38, and 40, which were accepted in evidence.

A one - volume Transcript of t he proceeding has been filed.

The parties submitted proposed recommended orders on April 16,

2018, which have been considered in the preparation of this

Recommended Order.

FINDING S OF FACT

Background

1. Petitioner owns real property and resides in the

Co unty. She submitted written comments to the County during the

adoption phase of the amendment. She is an affected person

within the meaning of section 163.3184(1)(a), Florida Statutes.

2. The County is a local government that is subject to the

requireme nts of chapter 163, Florida Statutes.

3. A sector plan is the process in which the local

government engages in long - term planning for an area of at least

5,000 acres. §§ 163.3164(42) and 163.3245(1), Fla. Stat. It

involves two levels of planning: a) a long - term master plan,

and b) a Detailed Specific Area Plan (DSAP), which implements

the master plan. A DSAP is created for an area that is at least

1,000 acres and identifies the distribution, extent, and

location of future uses and public facilities. § 163.3245(3),

Fla. Stat. While the DSAP is created by a local development

order that is not subject to state compliance review, an

amendment to an adopted sector plan is a plan amendment reviewed

under the State Coordinated Review process. § 163.3184(2) (c),

Fla. Stat. The development standards in the DSAP are separate

and distinct from the development standards in non - sector plan

properties.

4. On June 3, 2010, the County approved Ordinance

No. 2010 - 16, which adopted Evaluation and Appraisal Re port - based

amendments to the Plan, including a new Optional Sector Plan

(OSP). The Ordinance was challenged by the Department of

Community Affairs (DCA) and assigned DOAH Case No. 10 - 6857GM.

5. In response to the DCA challenge, on February 3, 2011,

the County adopted Ordinance No. 2011 - 3 as a stipulated remedial

amendment. The Ordinance establishes a long - term master plan

for central Escambia County known as the Mid - West Escambia

County Sector Plan (Sector Plan). The Sector Plan is comprised

of appro ximately 15,000 acres, north of Interstate 10, west of

Highway 29, and south of Highway 196. The area is depicted on

the Future Land Use Map (FLUM) as the OSP. The DCA determined

the Ordinance to be in compliance.

6. To implement the long - term master plan, on September 9,

2011, the County adopted Ordinance No. 2011 - 29, which

establishes two DSAPs: Muskogee DSAP and Jacks Branch DSAP.

Petitioner's residence and the subject property are located

within the Jacks Branch DSAP. State compliance review of that

action under section 163.3184(3) or (4) was not required.

7. In 2011, the Legislature created the right to opt out

or withdraw from a sector plan. See § 163.3245(8), Fla. Stat.

This can be accomplished "only with the approval of the local

governm ent by plan amendment adopted and reviewed pursuant to

s. 163.3184." Id. In response to the statutory amendment, the

County adopted a plan amendment which provides that any

additions to, or deletions from, a DSAP must follow the

established procedures i n the Plan. See Ex. 40, p. 14.

8. In order to consolidate the County zoning districts, on

April 16, 2015, the County adopted Ordinance No. 2015 - 12, which

repealed the entire Land Development Code (LDC) and replaced it

with a new LDC, which has a county - w ide rezoning plan.

9. After the first (and only) application to opt out of

the Sector Plan was filed by a property owner, on March 16,

2017, the County amended the LDC through Ordinance No. 2017 - 14,

which establishes seven criteria for evaluating this type of

request. See LDC, § 2 - 7.4. The Ordinance was not challenged.

According to the County, the criteria were actually drafted by

the Department of Economic Opportunity (DEO) and require it to

consider the following:

1. All standard Comprehensive Pl an map

criteria;

2. Comprehensive Plan requirement for

changes to an existing DSAP;

3. The size of the subject parcel in

relation to the individual DSAP land use

category and in relation to the overall

Sector Plan, to specifically include the

aggregate acreage of any previously granted

opt - outs;

4. The existing transportation

infrastructure and any impact the proposed

opt - out may have on the capacity of the

infrastructure;

5. The underlying existing zoning category

and its compatibility with surroun ding DSAP

land use designations;

6. The consistency of the requested future

land use designation with the underlying

zoning; and

7. The previous future land use

designation.

10. Besides the foregoing criteria, subsection 2 - 7.4(b)

provides that when the County reviews an opt - out application:

[t]o the extent possible, the staff analysis

and the reviewing bodies shall consider

whether the applicant lost development

rights or was effectively downzoned as part

of the Sector Plan adoption. The Board may

take into consideration any other relevant

factors in making its determination related

to the request.

11. Once a parcel is removed from the County's Sector

Plan, the underlying zoning that was in effect when the Sector

Plan was created remains the same, but a new future land use

(FLU) category must be assigned to the property by a plan

amendment. § 163.3245(8), Fla. Stat. Withdrawing from a DSAP

does not modify the DSAP because the DSAP is the development

standard itself.

The Property

12. The parcel lies on the eastern edge of the DSAP about

ten miles north of Interstate 10 on the northwest corner of

Highway 29 and Neal Road. Highway 29 is a major four - lane

arterial road running in a north - south direction with a median

in the middle. The road is ma intained by the state. Neal Road

is a small, two - lane County road that intersects with Highway 29

from the west and provides access to a residential area where

Petitioner resides. Existing commercial development is located

on the east side of Highway 29. Most recently, a Family Dollar

Store was developed directly across the street from the

property.

13. Currently, the parcel is vacant and lies in the

Conservation Neighborhood District, which permits a maximum

density of three dwelling units per gross ac re and is the lowest

density of residential development allowed in the Sector Plan.

Only residential uses are allowed in the district, which is

intended to treat stormwater and preserve open space and

wildlife. Based on maps of the area, Petitioner's pro perty

appears to be no more than one - half mile west of the subject

property. The character of the area in Petitioner's

neighborhood is low - density residential development.

14. Before the Sector Plan was adopted, the assigned land

use on the parcel was MU - S. This use is intended for "a mix of

residential and non - residential uses while promoting compatible

infill development and the separation of urban and suburban land

uses." Its express purpose is to serve as a mixed - use area. As

described by a County witness, "the mixed - use aspect of it

allows a non - residential component first, but, again, it's

predominately residential, low - density residential." The range

of allowable uses includes residential, retail services,

professional office, recreational facil ities, and public and

civic, with a maximum intensity of a 1.0 floor area ratio.

15. Until the Sector Plan was created, the parcel was

zoned as Gateway Business District (GBD). Under the new

rezoning plan established in 2015, all parcels outside the

S ector Plan which were zoned GBD were consolidated with similar

zoning categories into the new district of Heavy Commercial/

Light Industrial (HC/LI). Permitted uses under this district

are residential, retail sales, retail services, public and

civic, recr eation and entertainment, industrial and related,

agricultural and related, and "other uses," such as billboards,

outdoor sales, trade shops, warehouses, and the like.

16. Once a parcel is withdrawn from the Sector Plan, it

retains the underlying zoning i n effect when the DSAP was

established. Because the new zoning scheme consolidates GBD

into HC/LI, the parcel will revert to HC/LI. Therefore, the

zoning and land use will be the same as they were before the

Sector Plan was created. This combination is not unusual, as

there are "multiple parcels" outside the DSAP that have this

zoning/land use pairing.

The Challenged Amendment

17. In June 2016, the property owner filed an application

with the County requesting that his parcel be removed from the

Mid - Wes t Sector Plan. At that time, neither the County nor the

applicant realized that a new land use must be assigned.

Consequently, no request for a new land use was made.

18. Because this was the first time an opt - out application

had been filed with any l ocal government, the County had a

series of meetings with DEO seeking guidance on how to proceed.

It was told by DEO that the opt - out application and a FLU change

should be processed in the same manner as a FLUM amendment and

then reviewed under the State Coordinated Review process. DEO

also provided suggested criteria that should be considered when

processing such an application. These criteria were adopted as

new LDC section 2 - 7.4. The County followed all steps suggested

by DEO.

19. DEO instructed th e County to require a second

application from the property owner, which included a request

for a new land use category. After the second application was

filed, the County began the process of determining whether the

application satisfied the opt - out crite ria in section 2 - 7.4 and

relevant Plan requirements.

20. The second application addressed the FLU requirement

and contained the analysis required for each component of the

Plan. A future land use of Mixed - Use Urban (MU - U) was initially

requested by the owner. This category is consistent with HC/LI

zoning, but is a much more intense land use category than MU - S.

Because of concerns that the MU - U land use would not be

compatible with the surrounding neighborhood in the DSAP, the

County changed the propos ed new land use to MU - S, the use

assigned to the property before the Sector Plan was adopted.

MU - S is the same land use assigned to other non - Sector Plan

parcels surrounding the subject property, and there are non -

industrial uses within the HC/LI zoning d istrict that are

consistent with MU - S. If the application is approved, only

25 potential residential units will be removed from the total

Sector Plan, and the reduction in total developable area will be

de minimis. Except for a change to the DSAP map and the acreage

table, no changes to the text of the DSAP are made.

21. During the application process, the County addressed

natural resources, wetlands, historically significant sites, and

impacts on the environment. The County also evaluated the

applic ation in light of the criteria found in section 2 - 7.4 and

determined that, as a whole, it satisfied those requirements.

See Cnty. Ex. 34, pp. 28 - 39. Because a proposed use of the

property was not submitted with the application, an analysis of

a specific use was not made. When a site plan to develop the

property is filed, the proposed use will be evaluated by the

Development Review Committee, and then by the Board of County

Commissioners. That review will ensure that the intended

development will not be inconsistent with the zoning district

and land use assigned to the parcel.

22. The opt - out request was debated extensively during a

series of ten public hearings that began in September 2016.

Members of the public were allowed to speak for or against t he

proposal. On September 7, 2017, the County voted to amend

the Plan by (a) allowing the parcel to withdraw from the OSP,

(b) removing the Sector Plan overlay on the parcel, and

(c) amending the FLUM by assigning the property a MU - S land use

designation. No other changes were made. The amendment does

not create a remnant area or fragmented DSAP.

23. The amendment was transmitted to DEO for review under

the State Coordinated Review process. DEO determined it met the

requirements of chapter 163 for compliance purposes. The State

Coordinated Review is more comprehensive than the Expedited

Review process under section 163.3184(3). On November 8, 2017,

a Notice of Intent to find the amendment in compliance was

issued by DEO. See Cnty. Ex. 39. Petitioner filed her Petition

within 30 days after the Ordinance was adopted, but before DEO

issued its Notice of Intent. Therefore, it was timely.

24. Besides DEO's review, the Department of Transportation

and Department of Education reviewed the prop osal for impacts on

transportation and school concurrency, respectively. No further

information was requested from the County by any agency.

Petitioner's Objections

25. In the parties' Pre - hearing Stipulation, Petitioner

raises a procedural objection t o the manner in which the

withdrawal application was adopted. She also alleges generally

that the amendment creates inconsistent and incompatible zoning

and future land use pairing in violation of sections 163.3177(2)

and 163.3194(1); is inconsistent with the FLU Element; conflicts

with statutory provisions regarding compatibility of adjacent

land uses; and lacks sufficient data and analysis required by

section 163.3177(1)(f). These contentions, and others not

directly related to a compliance challenge, a re addressed below.

26. Petitioner first contends an opt - out application must

be adopted by a local development order, rather than by a plan

amendment. She argues the County erred by not providing her the

opportunity to cross - examine witnesses at the ado ption hearing

and failing to subject the proposal to more "intense review and

analysis." The quasi - judicial process requires strict scrutiny

of a local government's action, rather than a fairly debatable

standard of review, and provides third parties the right to

challenge the local government's decision in circuit court,

rather than in a section 163.3184 proceeding. This contention

has been rejected and is addressed in the Conclusions of Law.

27. Petitioner contends approval of the application will

lead to further requests by other property owners to opt out of

the Sector Plan. Currently, there are over 1,000 property

owners in the Sector Plan. During the County hearings, staff

identified 24 or 25 other properties that might choose to file

an opt - out a pplication in the future. Whether those owners will

do so is no more than speculation at this point. The County

responds that it will evaluate each application on a case - by -

case basis. A case - by - case analysis is necessary because an

application involvin g a large parcel of property would

clearly have a different analysis than one which involves only

8.67 acres. More importantly, because the opt - out process is a

statutory right created by the Legislature, the County is

obligated to consider every opt - o ut application filed, and if it

satisfies the applicable criteria, it must be approved. In any

event, there is nothing in sections 163.3184 or 163.3245 which

requires the local government to deny an application merely

because another property owner might file a similar application

at some point in the future.

28. Petitioner contends the County acted "unreasonably"

because it did not establish opt - out criteria until after the

application was filed. The County's action was reasonable under

the circumstance s because it had no standards or precedent for

reviewing this type of application; at the direction of DEO, the

criteria were adopted before final action on the application was

taken; and the criteria were considered by the County.

29. Petitioner contend s the criteria in section 2 - 7.4 are

vague and lack specific, objective evaluation standards.

However, Ordinance No. 2017 - 14 was never challenged and is

presumed to be valid.

30. Petitioner contends HC/LI zoning is inconsistent

with the MU - S land use an d violates sections 163.3177(2)

and 163.3194(1)(b). 1/ Those provisions require generally that

zoning regulations and land uses be consistent with one another

and the elements of the Plan.

31. The zoning and land use will be the same as existed

bef ore the Sector Plan was adopted. They correlate with the

zoning and land use on numerous other non - Sector Plan parcels in

the immediate area and throughout the County. MU - S contemplates

a mixed - use area, while HC/LI contains a variety of residential,

com mercial, and industrial uses. Although industrial uses are

inconsistent with the land use, see Endnote 1, there are many

other uses within the zoning district that are compatible with

MU - S. It is fairly debatable that the zoning and land use

designation are compatible.

32. FLU Objective 1.3 provides that future land use

designations should "discourage urban sprawl, promote mixed use,

compact development in urban areas, and support development

compatible with the protection and preservation of rural areas ."

By allowing more intensive development next to the Conservation

Neighborhood District, Petitioner contends the plan amendment is

inconsistent with this directive because it encourages urban

sprawl. "Sprawl" is defined in chapter 3 of the Plan as

[h]a phazard growth of dispersed, leap -

frog and strip development in suburbs and

rural areas and along highways; typically,

sprawl is automobile - dependent, single use,

resource - consuming, and low - density

development in previously rural areas and

disconnected fr om existing development and

infrastructure.

33. The parcels on the east side of Highway 29 have

similar zoning and land uses as the subject property and are

interspersed with commercial development. Therefore, future

development on the subject propert y would not be "disconnected

from existing development and infrastructure," and it would not

leap - frog into non - developed areas. It is fairly debatable that

the plan amendment does not encourage urban sprawl.

34. Petitioner contends the underlying zoning on the

parcel is incompatible with the land use in her neighborhood.

Although the County considered this issue, it points out that

the Sector Plan and Comprehensive Plan have different

development standards, and therefore there is no requirement

that it consider the compatibility of non - Sector Plan property

with property in the DSAP. Moreover, to restore the property

rights that an owner once had, when the withdrawal application

is approved, the property should revert to the underlying zoning

in existenc e when the Sector Plan was established.

35. Notwithstanding the foregoing, LDC section 2 - 7.4(a)5.

requires that when reviewing an opt - out application, the County

must consider "[t]he underlying existing zoning category and its

compatibility with surroun ding DSAP land use designations." To

this end, the County addressed this factor by assigning a less

intense MU - S land use to the parcel so that more intense uses

allowed by HC/LI would be prohibited or minimized. It is fairly

datable that the underlying zoning will be compatible with the

neighboring area.

36. Petitioner contends the amendment is not supported by

data and analysis, as required by section 163.3177(1)(f).

37. Prior to adopting the amendment, the County staff made

a qualitative and quan titative analysis of impacts on natural

resources, wetlands, historically significant sites, the

environment, and adjacent lands.

38. Because Highway 29 is a state road, the County has

limited planning responsibilities for traffic impacts. Even so,

a li mited analysis of traffic impacts is found in County

Exhibit 17. In addition, the Department of Transportation

performed a more complete analysis of traffic impacts

attributable to the amendment. Because the parcel is currently

vacant, traffic impacts o n Neal Road cannot be fully analyzed

until a site plan is filed.

39. A review of school concurrency issues was performed by

the Department of Education and no adverse comments were

submitted. The County verified that Emerald Coast Utility

Authority had available water, sewer, and garbage capacity to

serve the parcel. Finally, the County took into account the

fact that removal of such a small parcel from the edge of the

eastern side of the Sector Plan would have minimal, if any,

effect on the Sector Pla n goals and objectives.

40. It is fairly debatable that the amendment is supported

by relevant and appropriate data and analysis.

41. All other contentions not specifically discussed have

been considered and rejected.

CONCLUSIONS OF LAW

42. To have st anding to challenge or support a plan

amendment, a person must be an "affected person" as defined in

section 163.3184(1)(a). Petitioner is an affected person within

the meaning of the law.

43. Because section 163.3245(3) requires a DSAP to be

adopted by a local development order, Petitioner argues that an

application to withdraw from the Sector Plan must be processed

in the same manner. As noted earlier, the adoption of a local

development order constitutes quasi - judicial action, rather than

legislative action.

44. Whether an action is legislative or quasi - judicial

determines the level of review it receives under Florida law. A

local government's legislative action is subject to review under

a deferential "fairly debatable" standard of review, while

r ulings made in its quasi - judicial capacity are subject to

review by certiorari in circuit court and will be upheld only if

they are supported by competent substantial evidence.

45. All comprehensive plan amendments are legislative

decisions and subject to the fairly debatable standard of

review. Coastal Dev. of N. Fla. v. City of Jacksonville Bch. ,

788 So. 2d 204, 209 - 10 (Fla. 2001); Martin Cnty. v. Yusum , 690

So. 2d 1288, 1295 (Fla. 1997). The plain language in two

statutes supports a conclusion that an opt - out application is a

plan amendment. First, section 163.3245(8) provides that "an

owner may withdraw his or her property from the master plan only

with the approval of the local government by plan amendment

adopted and reviewed pursuant to s. 163.3 184." Second, in

contrast to the process for adopting a local development order,

section 163.3184(2)(c) provides that "an amendment to an adopted

sector plan . . . must follow the state coordinated review

process in subsection (4)." Given these clear sta tutory

directives, the County correctly processed the application under

section 163.3184, and it afforded Petitioner all rights to which

she was entitled.

46. Under the process described in section 163.3184(4),

plan amendments reviewed under the State Coo rdinated Review

process are sent to the reviewing agencies within ten working

days after the first public hearing. If DEO elects to review

the amendment, it has 60 days in which to issue objections,

recommendations, and comments regarding the amendment. Within

ten days after the second public hearing, the local government

shall transmit the amendment to DEO and other interested

agencies for additional review. After a determination of

completeness is made, DEO reviews the final version of the

amendment an d issues a notice of intent. In this case, a Notice

of Intent to find the amendment in compliance was issued by DEO.

47. "In compliance" means that a plan amendment is

consistent with the requirements of sections 163.3177,

163.3194, 163.3245, and othe r statutes not relevant here.

See § 163.3184(1)(b), Fla. Stat.

48. The "fairly debatable" standard, which provides

deference to the local government's disputed decision, applies

to any challenge filed by an affected person. Therefore,

Petitioner bear s the burden of proving beyond fair debate that

the challenged plan amendment is not in compliance. This means

that "if reasonable persons could differ as to its propriety," a

plan amendment must be upheld. Yusem , 690 So. 2d at 1295.

49. As previousl y found, it is fairly debatable that the

plan amendment is internally consistent with other Plan

provisions, it is not inconsistent with sections 163.3177,

163.3194(1), and 163.3245, the new land use and zoning are

compatible with the surrounding area, and the amendment is

supported by relevant data and analysis. Accordingly, the plan

amendment is in compliance.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department of Economic Opportunity

enter a final order determining that the plan amendment adopted

by Ordinance No. 2017 - 53 is in compliance.

DONE AND ENTERED this 10th day of May , 2018 , in

Tallahassee, Leon County, Florida.

S

D. R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 10th day of May , 2018 .

ENDNOTE

1/ A final hearing in this case was conducted in February 2018.

On November 30, 2017, the County adopted Ordinance No. 2017 - 65,

which amended the HC/LI zoning category to address certain

inconsistencies created by the HC/LI z oning with the MU - S future

land use category. On January 16, 2018, Petitioner filed a

Petition with DEO pursuant to section 163.3213 in which she

challenged the new regulation on the ground it is inconsistent

with the Plan and does not implement the chara cter of the MU - S

land use. After conducting an investigation, on April 3, 2018,

DEO determined that to the extent the regulation permits "light

industrial" uses within the MU - S land use, the regulation is not

consistent with the Plan. In all other respec ts, the regulation

was deemed to be consistent. See Determination of Consistency

of Land Development Regulation, Apr. 3, 2018. DEO's

determination was appealed by Petitioner to DOAH. See Case

No. 18 - 2109GM. Petitioner also filed a second Petition with

DOAH challenging the Ordinance which adopted the regulation.

See Case No. 18 - 2103GM. Therefore, the amended regulation is

not yet effective.

COPIES FURNISHED:

Jacqueline Rogers

1420 Ridge Way

Cantonment, Florida 32533 - 7991

(eServed)

Meredith D. Crawford, Esquire

Assistant County Attorney

Suite 430

221 Palafox Place

Pensacola, Florida 32502 - 5837

(eServed)

Stephanie Chatham, Agency Clerk

Department of Economic Opportunity

Caldwell Building

107 East Madison Street

Tallahassee, Florida 32399 - 4 128

(eServed)

Peter Penrod, General Counsel

Department of Economic Opportunity

Caldwell Building , MSC 110

107 East Madison Street

Tallahassee, Florida 32399 - 4128

(eServed)

Cissy Proctor, Executive Director

Department of Economic Opportunity

Caldwell Bui lding

107 East Madison Street

Tallahassee, Florida 32399 - 4128

(eServed)

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 Recomme nded Order should be filed with the agency that

will issue the Final Order in this case.