18-002109GM Jacqueline Rogers vs. Escambia County And Department Of Economic Opportunity Status: Closed DOAH Final Order on Tuesday, November 20, 2018.

Summary: The Petitioner did not prove beyond fair debate that the Ordinance and Remedial Ordinance amending section 3-2.11 of the Escambia County Land Development Code is inconsistent with the Escambia County Comprehensive Plan.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JACQUELINE ROGERS,

Petitioner,

vs. Case Nos. 18 - 2103GM

18 - 2109GM

ESCAMBIA COUNTY AND DEPARTMENT

OF ECONOMIC OPPORTUNITY,

Respondents.

_______________________________/

F INAL ORDER

Pursuant to notice, a final hearing was held in this matter

on August 14, 2018, in Pensacola, Florida, before Francine M.

Ffolkes, an Administrative Law Judge assigned by the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Jac queline A. Rogers, pro se

1420 Ridge Way

Cantonment, Florida 32533 - 7991

For Respondent Escambia County :

Meredith D. Crawford, Esquire

Escambia County Attorney ' s Office

221 Palafox Place, Suite 430

Pensacola, Florida 32502 - 5837

For Respondent Department of Economic Opportunity:

Jon F. Morris, Esquire

Department of Economic Opportunity

Caldwell Buildi ng, Mail Station 110

107 East Madison Street, Mail Station 110

Tallahassee, Florida 32399 - 4128

STATEMENT OF THE ISSUE S

A. Whether Escambia County Ordinance No. 2017 - 65

(Ordinance) adopted on November 30, 2017, amending t he Heavy

Commercial/Light Industrial (HC/LI) zoning district in the

Escambia County Land Development Code (LDC) is consistent with

the 2030 Escambia County Comprehensive Plan (Comp Plan).

B. Whether Remedial Ordinance No. 2018 - 30 (Remedial

Ordinance) adop ted on August 2, 2018, alleviates any

inconsistency in the Ordinance such that the HC/LI zoning

district regulation is consistent with the Comp Plan.

PRELIMINARY STATEMENT

The Respondent, Escambia County (County), adopted the

Ordinance on November 30, 2017 , which amended the HC/LI zoning

district in the County LDC. On January 16, 2018, the Petitioner,

Jacqueline Rogers, petitioned the Respondent, Department of

Economic Opportunity (DEO) , under section 163.3213, Florida

Statutes, to contest the Ordinance as inconsistent with the

Comp Plan. DEO conducted an investigation as required by

section 163.3213(4), which included holding an informal hearing

at which the Petitioner and the County presented oral and

documentary evidence. Based on its investigation, DE O made the

following written determination:

1) To the extent Escambia County Ordinance

No. 2017 - 65 permits " light industrial " uses

within the Mixed Use - Suburban (hereinafter

" MU - S " ) Future Land Use Category, the

Ordinance is not consistent with the Escamb ia

County Comprehensive Plan.

2) Escambia County Ordinance 2017 - 65 is

otherwise consistent with the Escambia County

Comprehensive Plan.

Under section 163.3213(5)(b), DEO referred this matter to the

Division of Administrative Hearings (DOAH). Under sect ion

163.3213(5)(a), the Petitioner filed a petition with DOAH

contesting the Ordinance and Remedial Ordinance as inconsistent

with the County ' s Comp Plan. The petitions were consolidated in

this proceeding.

The County adopted the DEO ' s determination , con ceding that

to the extent the Ordinance permitted " light industrial " uses

within the Mixed - Use Suburban (MU - S) Future Land Use (FLU)

c ategory, the Ordinance is not consistent with the Comp Plan. On

August 2, 2018, the County amended the Ordinance by adopt ing the

Remedial Ordinance, which removed industrial uses from the

permitted uses of HC/LI when located in MU - S. DEO agreed that

the Remedial Ordinance remedied the inconsistency determination.

The Petitioner maintained that the HC/LI zoning district

reg ulation as amended in the Remedial Ordinance remained

inconsistent with the Comp Plan.

At the final hearing, the Petitioner testified and offered

the direct testimony of Griffin Vickery and Horace Jones. The

Petitioner ' s Exhibits 1 through 10 were admitt ed into evidence.

The County cross - examined these witnesses and offered the direct

testimony of Horace Jones. The County ' s Exhibits 1 through 5

were admitted into evidence.

Mr. Jones is the d irector of the Escambia County Development

Services Department and previously qualified as an expert in land

use and growth management. Mr. Vickery is an U rban P lanner II

with the Escambia County Development Services Department.

A one - volume T ranscript of the final hearing was filed on

October 1, 2018. The parties were given 21 days, through and

including October 22, 2018, to submit proposed final orders. The

undersigned granted the parties ' joint request for an extension ,

and the parties filed their proposed final orders on November 2,

2018. Those proposed final orders have been considered in the

preparation of this Final Order.

References to the Florida S tatutes are to the 2018 version,

unless otherwise indicated.

FINDING S OF FACT

1. The Petitioner lives and owns property in Cantonment,

Escambia County, Florida, in proximity to parcels of land

impacted by the Ordinance and Remedial Ordinance. As such, the

Petitioner would be subject to an increase in noise and traffic

resulting from the Ordinance and Remedial Ordinance, as well as

an adverse change in the charac ter of her rural neighborhood.

2. The County is a non - charter county and political

subdivision of the State of Florida. The County is the affected

local government and is subject to the requirements of

chapter 163.

3. DEO is the state land planning agen cy and has the

duty to review and investigate petitions submitted under

section 163.3213, challenging land development regulations

adopted by local governments.

4. The Ordinance was enacted to amend Part III of the

County ' s LDC to address consistency of p arcels zoned HC/LI with

the MU - S FLU Category. The preamble to the Ordinance indicates

a previous consolidation of zoning districts implemented on

April 16, 2015, " did not eliminate all occurrences of zoning

districts that appear to allow uses, density, o r other

intensities of use not authorized by the prevailing purposes and

associated provisions of applicable future land use categories. "

The County ' s Board of County Commissioners (Board) found that

" there are occurrences of HC/LI zoning within the MU - S future

land use category , " and " it is in the best interests of the

health, safety, and welfare of the public to address any

inconsistency created by HC/LI zoning within the MU - S future land

use category. "

5. After the DEO ' s determination of partial incons istency,

the County adopted the Remedial Ordinance, which makes no

reference to the April 15, 2015 , consolidation of zoning

districts in the preamble. In addition, the Remedial Ordinance

amends the Ordinance to delete certain confusing references to

parce ls and their previous zoning as of April 15, 2015. Thus,

the Remedial Ordinance is much clearer than the Ordinance in

addressing the prior inconsistency created by HC/LI zoning within

the MU - S FLU category.

Mixed - Use Suburban Future Land Use Category

6. The MU - S FLU is described in FLU Policy 1.3.1 of the

Comp Plan as " [i]ntended for a mix of residential and non -

residential uses while promoting compatible infill development

and the separation of urban and suburban land uses. " The MU - S

FLU lists the range of allowable uses as " [r]esidential, retail

sales & services, professional office, recreational facilities,

public and civic, limited agriculture. " The MU - S FLU prescribes

standards , such as a residential maximum density of 25 dwelling

units per acre (du /acre) and a non - residential maximum intensity

floor area ration (FAR) of one.

7. The MU - S FLU also describes the mix of land uses that

the County intends to achieve for new development in relation to

location, i.e., the distance from arterial roadways or transit

corridors. Within one - quarter mile of arterial roadways or

transit corridors: residential percentages of 8 to 25 percent;

public, recreational and institutional percentages of 5 to

20 percent; non - residential uses such as retail service at 30 to

50 percent ; and office at 25 to 50 percent. Beyond one - quarter

mile of arterial roadways or transit corridors: residential

percentages of 70 to 85 percent; public, recreational and

institutional percentages of 10 to 25 percent; and non -

residential perce ntages of 5 to 10 percent.

8. The mix of land uses described by the Comp Plan MU - S FLU

category can be implemented by multiple zoning districts in the

LDC. Certain zoning districts within MU - S further the

residential intentions of the FLU category and ot her zoning

districts further the non - residential intentions of the MU - S FLU

category. However, all zoning districts within MU - S contain some

element of residential use.

The Ordinance and Remedial Ordinance

9. The Remedial Ordinance amended the purpose

su bsection (a) of section 3 - 2.11 of the County LDC by adding

language that directly limited the " variety and intensity of non -

residential uses within the HC/LI [zoning] district " by " the

applicable FLU. " This means that although various non -

residential uses are permitted in the HC/LI zoning district, the

FLU category in the Comp Plan determines the " variety and

intensity " of those non - residential uses.

10. The Ordinance had amended subsection (h) of

section 3 - 1.3 of the County LDC to clarify that " [o]ne or more

districts may implement the range of allowed uses of each FLU,

but only at densities and intensities of use consistent with the

established purposes and standards of the category. " This

clarification is consistent with FLU Policy 1.1.4 in the Comp

P lan, which states that " [w]ithin a given future land use

category, there will be one or more implementing zoning

districts. "

11. The Remedial Ordinance amended the permitted uses in

subsection (b) of section 3 - 2.11 of the County LDC by deleting

the confus ing reference to parcel sizes and their previous zoning

as of April 15, 2015. In paragraph (6) of subsection 3 - 2.11(b),

the Remedial Ordinance made clear that the listed " industrial and

related uses " are not permitted " within MU - S. " In general, the

other permitted uses mirror the range of allowable uses in the

MU - S FLU category.

12. The Remedial Ordinance amended the conditional uses in

subsection (c) of section 3 - 2.11 to make clear that the listed

industrial and related conditional uses are not permitte d within

MU - S. The Ordinance added MU - S to the site and building

requirements in subsection (d) of section 3 - 2.11 to require a

maximum FAR of 1.0. The Remedial Ordinance also imposed a

maximum structure height for " any parcel previously zoned GBD

[Gatewa y Business District] and within the MU - S " of 50 feet,

which is lower than the maximum of 150 feet for HC/LI zoning not

within MU - S.

13. The Remedial Ordinance amended the location criteria in

subsection (e) of section 3 - 2.11 to limit " [a]ll new non -

reside ntial uses proposed within the HC/LI district " to parcels

previously zoned GBD and within the MU - S FLU category that are

located along and directly in front of " U.S. Highway 29 or State

Road 95A. " In addition, another location criterion limits new

non - res idential uses along arterial streets to within one - quarter

mile of their intersection with an arterial street.

14. The provisions of the Ordinance and Remedial Ordinance

are consistent with the County Comp Plan.

Petitioner ' s Objections

15. The Petitioner contended that the HC/LI zoning

regulation allows intensities and scales of commercial uses that

are inconsistent with the character of a predominantly

residential FLU like MU - S. The Petitioner based her contention

on the Comp Plan definition of " suburba n area " and argued that

the Ordinance and Remedial Ordinance permitted uses, densities,

and intensities that were not " suburban in nature. "

16. " Suburban area " is defined in the Comp Plan as " [a]

predominantly low - density residential area located immediat ely

outside of an urban area or a city and associated with it

physically and socioeconomically. " By contrast, " mixed - use " is

defined in the Comp Plan as " any use that includes both

residential and non - residential uses. " See ch . 3, § 3.04,

Escambia Cnty. Comp Plan.

17. Contrary to the Petitioner ' s contention, the MU - S FLU

category ' s primary focus is on a mix of uses in a suburban area.

See Findings of Fact Nos. 6 - 8, above. Indeed, the FLU element of

the Comp Plan expresses a purpose and intent to encour age mixed -

use development.

18. Also, the Petitioner ' s focus on the differences between

the MU - S and Mixed - Use Urban (MU - U) FLU categories in the Comp

Plan was misplaced. The premise that the HC/LI zoning district

implements the MU - U FLU category better t han it implements the

MU - S FLU category was not the issue to be determined in this

proceeding. Rather, it was whether the Ordinance, as amended by

the Remedial Ordinance, amending the HC/LI zoning district in the

LDC is consistent with the Comp Plan.

19. All other contentions not specifically discussed have

been considered and rejected.

CONCLUSIONS OF LAW

20. DOAH has jurisdiction over the subject matter of this

proceeding under sections 120.569, 120.57(1), and 163.3213,

Florida Statutes.

21. The Petiti oner is a " substantially affected person "

and has standing to maintain this proceeding under

section 163.3213(2).

22. Section 163.3201 regulates the relationship of a local

government ' s comprehensive plan to its exercise of land

development regulatory aut hority and requires that a land

development regulation " be based on, be related to, and be a

means of implementation for an adopted comprehensive plan. "

23. Section 163.3194(1)(b) requires that all land

development regulations " shall be consistent with th e adopted

comprehensive plan. " Section 163.3194(3)(a) provides that a

" land development regulation shall be consistent with the

comprehensive plan if the land uses, densities or intensities,

and other aspects of development permitted by such

. . . regulat ion are compatible with and further the objectives,

policies, land uses, and densities or intensities in the

comprehensive plan and if it meets all other criteria enumerated

by the local government. "

24. The adoption of a land development regulation by a

local government is legislative in nature and shall not be found

to be inconsistent with the local plan if it is fairly debatable

that it is consistent with the plan. See § 163.3213(5)(a), Fla.

Stat.

25. The term " fairly debatable " is not defined in

chap ter 163, but in Martin C ou nty v. Yusem , 690 So. 2d 1288, 1295

(Fla. 1997), the Florida Supreme Court explained:

[t]he fairly debatable standard is a highly

deferential standard requiring approval of a

planning action if reasonable persons could

differ as t o its propriety. In other words,

an ordinance may be said to be fairly

debatable when for any reason it is open to

dispute or controversy on grounds that make

sense or point to a logical deduction that in

no way involves its constitutional validity.

(Inte rnal citations omitted.)

26. " The ' fairly debatable ' rule is a rule of

reasonableness; it answers the question of whether, upon the

evidence presented to the [government] body, the [government ' s]

action was reasonably based. " Lee Cnty. v. Sunbelt Equiti es, II,

Ltd. P ' ship , 619 So. 2d 996, 1002 (Fla. 2d DCA 1993)(citing Town

of Indialantic v. Nance , 400 So. 2d 37, 39 (Fla. 5th DCA 1981)).

27. The " fairly debatable " standard, which provides

deference to the local government ' s disputed decision, applies to

any challenge filed by an affected person. Therefore, the

Petitioner bears the burden of proving beyond fair debate that

the challenged land development regulation is not consistent with

the adopted comprehensive plan. This means that " if reasonable

per sons could differ as to its propriety, " a land development

regulation must be found consistent. Yusem , 690 So. 2d at 1295.

28. It is fairly debatable that , except for permitting

light industrial uses, the Ordinance is consistent with the

County Comp Plan . The Remedial Ordinance remedied the identified

inconsistency by removing all light industrial uses within the

HC/LI zoning district when located within the MU­S FLU category.

29. The Petitioner did not prove beyond fair debate that

section 3 - 2.11 of th e County LDC, as amended by the Ordinance and

Remedial Ordinance is inconsistent with the County Comp Plan.

ORDER

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

ORDERED that the Ordinance, as amended by the Remedial

Ordinance, amendi ng the HC/LI zoning district in the County LDC,

is consistent with the 2030 County Comp Plan.

DONE AND ORDERED this 20th day of November , 2018 , in

Tallahassee, Leon County, Florida.

S

FRANCINE M. FFOLKES

Administrative La w 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 20t h day of November , 2018 .

COPIES FURNISHED:

Jon F. Morris, Esquire

Department of Economic Opportunity

Caldwell Building, Mail Station 110

107 East Madison Street

Tallahassee, Florida 32399 - 4128

(eServed)

Jacqueline A. Rogers

1420 Ridge Way

Cantonment, Florida 32533 - 7991

(eServed)

Meredith D. Crawford, Esquire

Escambia County Attorney ' s Office

221 Palafox Place , Suite 430

Pensacola, Florida 32502 - 5837

(eServed)

Stephanie Webster, Agency Clerk

Department of Economic Opportunity

Caldwell Building

107 East Madison Street

Tallahassee, Florida 32399 - 4128

(eServed)

Peter Penrod, General Counsel

Department of Economic Opportunity

Caldwell Building, Mail Station 110

107 East Madison Street

Tallahassee, Florida 32399 - 4128

(eServed)

Cissy Proctor, Executiv e Director

Department of Economic Opportunity

Caldwell Building

107 East Madison Street

Tallahassee, Florida 32399 - 4128

(eServed)

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is entitled

to judicial review pu rsuant to section 120.68, Florida Statutes.

Review proceedings are governed by the Florida Rules of Appellate

Procedure. Such proceedings are commenced by filing the original

notice of administrative appeal with the agency clerk of the

Division of Admini strative Hearings within 30 days of rendition

of the order to be reviewed, and a copy of the notice,

accompanied by any filing fees prescribed by law, with the clerk

of the District Court of Appeal in the appellate district where

the agency maintains its h eadquarters or where a party resides or

as otherwise provided by law.