19-001153GM Jacqueline Rogers, Cynthia Cole, Ann Bennett, And Theresa Blackwell vs. Escambia County, A Political Subdivision Of The State Of Florida Status: Closed Recommended Order on Thursday, January 9, 2020.

Summary: Petitioners proved that the Plan Amendment was not supported by data and analysis as required by section 163.3177(1)(f).

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JACQUELINE ROGERS, CYNTHIA COLE,

ANN BENNETT, AND THERESA

BLACKWELL ,

Petitioner s , Case No. 19 - 1153GM

vs.

ESCAMBIA COUNTY, A POLITICAL

SUBDIVISION OF THE STATE OF

FLORIDA ,

Respondent .

/

RECOMMENDED ORDER

A duly - noticed final hearing was held in this case in

Pensacola, Florida, on October 30, 2019, before Suzanne Van Wyk,

an Administrative Law Judge assigned by the Division of

Administrative Hearings .

APPEARANCES

For Petitioners: Jacqueline A. Rogers, pro se

1420 Ridge Way

Cantonment, Florida 32533 - 7991

Cynthia Cole, pro se

3101 Highway 97

Molino, Florida 32577

Anne Bennett, pro se

Post Office Box 3571

Pensacola, Florida 32516 - 3571

Theresa Blackwell, pro se

9535 Tower Ridge Road

Pensacola, Florida 32526

For Respondent: Kia M. Johnson, Esquire

Office of the Escambia County Attorney

Suite 430

221 Palafox Place

Pensacola, Florida 32502 - 5837

STATEMENT OF THE ISSUE

Whether Escambia County Comprehensive Plan Amendment

CPA 2018 - 02, adopted by Ordinance No. 2019 - 09 on February 7,

2019, is Ðin compliance,Ñ as that term is defined in section

163.3184(1)(b), Florida Statutes (201 8). 1/

PRELIMINARY STATEMENT

On February 7, 2019, Escambia County adopted CPA 2018 - 02

(Ðthe Plan AmendmentÑ), which strikes Future Land Use

Policy 3.1.5 (ÐFLU 3.1.5Ñ). The Plan Amendment deletes the

CountyÓs policy direction to oppose establishment of new rural

communities within the County.

On March 6, 2019, Petitioners filed a Petition with the

Division of Administrative Hearings (ÐDivisionÑ) challenging the

Plan Amendment pursuant to section 163.3184. Petitioners allege

that the Plan Amendment : (1) ren ders the Plan internally

inconsistent, contrary to section 163.3177(2); (2) is not based

on relevant and appropriate data and an analysis by the local

government, as required by section 163.3177(1)(f); and (3) fails

to discourage urban sprawl, as required by section 163.3177(9).

A final hearing was originally scheduled for July 30, 2019,

but was continued to October 30, 2019, following the resignation

of RespondentÓs initial counsel in this matter. The undersigned

conducted a pre - hearing conference with th e parties on

October 14, 2019, and the parties filed a Pre - h earing

Stipulation on October 23, 2019.

The hearing commenced as re - scheduled in Pensacola,

Florida, on October 30, 2019. At the final hearing,

PetitionersÓ Exhibits P1 through P29 were admitted in evidence

(including Exhibit 18b., which was not on PetitionersÓ exhibi t

list incorporated in the Pre - h earing Stipulation). Petitioners

testified on their own behalf, and offered the testimony of

Christian Wagley, accepted as an expert in environmental

planning and sustainable development; Barbara Albrecht, accepted

as an expert in marine biology, aquatic ecology, environmental

diagnostics, and bio - remediation; Horace Jones, RespondentÓs

Director of Development Services, accepted as an expert in

comprehe nsive planning and zoning; and Juan Lemos, Senior Urban

Planner in RespondentÓs Development Services Department,

accepted as an expert in planning and zoning.

RespondentÓs Exhibits R1 through R27 were admitted in

evidence. Respondent presented the testimo ny of Mr. Jones and

Mr. Lemos.

A one - volume Transcript of the final hearing was filed with

the Division on November 20, 2019. On November 22, 2019, the

undersigned granted the partiesÓ Joint Motion for Extension of

Time to Submit Proposed Recommended Ord ers, ordering the parties

to submit proposed recommended orders on or before December 16,

2019. 2/ The parties timely filed Proposed Recommended Orders,

which have been carefully considered by the undersigned in the

preparation of this Recommended Order.

F INDING S OF FACT

The Parties and Standing

1. Each of the four Petitioners owns property in Escambia

County and submitted written or oral comments regarding the Plan

Amendment to the County between the date the Plan Amendment was

transmitted to the Departme nt of Economic Opportunity

(ÐDepartmentÑ) and the date it was adopted by the County

Commission.

2. Escambia County is a political subdivision of the State

of Florida, with the duty and responsibility to adopt and

maintain a comprehensive land use plan, pu rsuant to section

163.3167, Florida Statutes (2019).

Existing Conditions

3. There are approximately 610 square miles of land in the

unincorporated County. Of that, almost half (48 .75 percent) is

designated for a gricultural use.

4. Escambia County can b e roughly described as an

hour glass shape. The northern portion is dominated by

agricultural uses and is overwhelmingly designated as

Agricultural on the CountyÓs 2030 Future Land Use Map (ÐFLUMÑ).

The Agricultural (ÐAGÑ) land use category allows a maxim um

residential density of one dwelling unit per 20 acres (Ð1du/20

acresÑ).

5. In contrast, the southern portion has a much more urban

development form. The central urban core, located west of the

City of Pensacola, is designated as Mixed - Use Urban, with a

sprinkling o f Industrial designations, and C ommercial

designations along the major thoroughfares. Radiating out to

the north and west of the urban core is a swath of Mixed - Use

Suburban, with some areas designated for Recreation, and

Commercial along maj or thoroughfares. Farther west are lands

designated for Conservation, which extend to the Perdido River,

the CountyÓs western boundary.

6. The ÐneckÑ of the hourglass serves as a transition

between the agricultural northern portion and the urban and

subu rban southern portion of the County. The dominant future

land use categories in this area are Agriculture, Mixed - Use

Suburban, and a category critical to this case, Rural Community,

or Ð RC. Ñ

Rural Communities

7. According to the Comprehensive Plan (Ðthe PlanÑ or Ð the

existing PlanÑ), the RC FLUM category is :

[I]ntended to recognize existing residential

development and neighborhood serving

nonresidential activity through a compact

development pattern that serves the rural

and agricultural areas of Escambi a County.

8. The designation was applied to pockets of mixed

residential and commercial developments that served the

agricultural areas in existence when the Plan was originally

adopted. The FLUM depicts roughly 20 RCs in the County, almost

all of whic h are located in the northern portion.

9. The uses allowed in RC are agriculture, silviculture,

residential, recreational facilities, public and civic, and

compact traditional neighborhood supportive commercial.

Development is limited to a residential de nsity of two units per

acre (Ð2du/acreÑ), but does not impose a cap on the intensity of

commercial development.

10. The CountyÓs policy in establishing and maintaining

RCs is best reflected in Goal FLU 3 and its implementing

Objective and Policies, which read, as follows:

GOAL FLU 3 Rural Strategies

Escambia County will promote rural

strategies, including protecting

agriculture, silviculture, and related

activities, protecting and preserving

natural resources and guiding new

development toward existing r ural

communities.

OBJ FLU 3.1 Rural Development

All new development within the rural areas,

including commercial development, that is

compatible with the protection and

preservation of rural areas[,] will be

directed to existing rural communities.

Pol icies

FLU 3.1.1 Infrastructure Expenditures.

Escambia County will limit the expenditure

of public funds for infrastructure

improvements or extensions that would

increase the capacity of those facilities

beyond that necessary to support the

densities and intensities of use established

by this plan unless such expenditures are

necessary to implement other policies of

this plan.

FLU 3.1.2 Water Facility Extensions.

Escambia County will coordinate with potable

water providers on any extensions of potable

water facilities in the rural area.

FLU 3.1.3 FLUM Amendments. During

consideration of FLUM amendments, Escambia

County will consider the impacts of

increased residential densities to the

agriculture and silviculture industries as

well as public facilit y maintenance and

operation expenditures (i.e., roads, water,

sewer, schools) needed to serve the proposed

development.

FLU 3.1.4 Rezoning. Escambia County will

protect agriculture and the rural lifestyle

of northern Escambia County by permitting

re - zon ings to districts, allowing for higher

residential densities in the RC future land

use category.

FLU 3.1.5 New Rural Communities. To

protect silviculture, agriculture, and

agriculture - related activities, Escambia

County will not support the establishmen t of

new rural communities.

D esignated S ector A rea P lan

11. The Designated Sector Area Plan (ÐDSAPÑ) was created

and adopted in the Plan in 2011, and comprises approximately

15,000 acres in the transitional area between the urban and

suburban south Count y and rural and agricultural north County.

12. The DSAP plans for the location of traditional urban

neighborhoods, new suburban and conservation neighborhoods, and

regional employment districts, and includes the location of

existing and planned public fac ilities to serve the new

development.

13. As noted by the CountyÓs Development Director,

Horace Jones, in August 2018, the primary purpose of the DSAP

was to Ðprevent urban sprawl into the agrarian and rural

communities . . . so that we canÓt continue to intrude upon

those prime farmland areas, upon those large parcels of land in

the AG category.Ñ At the final hearing, Mr. Jones several times

confirmed that the purpose of the DSAP was to prevent urban

sprawl into the agricultural areas of the County.

14. As noted by the CountyÓs Senior Urban Planner,

Juan Lemos, in August 2018, ÐWe havenÓt gotten to that point

where we need those agricultural lands to build houses for

people . . . or to develop businesses[.]Ñ At final hearing,

Mr. Lemos confirmed that h is opinion on that issue has not

changed. 3/

The Plan Amendment

15. The Plan Amendment, plainly and simply, deletes

FLU 3.1.5 in its entirety.

16. The Plan Amendment represents a policy change by the

County to allow consideration of plan amendments est ablishing

new RCs in the County.

PetitionersÓ Challenges

17. Petitioners allege the Plan Amendment is not Ðin

complianceÑ because it : (1) creates internal inconsistencies in

the existing Plan; (2) is not based on relevant and appropriate

data and an anal ysis by the local government; and (3) fails to

discourage urban sprawl.

Internal Inconsistencies

18. Petitioners allege the Plan Amendment is inconsistent

with FLU Goal 3, ÐRural Strategies,Ñ and Objective 3.1, ÐRural

Development.Ñ

19. The Goal provides that, in rural areas, the County

will Ðguide[] new development toward existing [RCs],Ñ and the

Objective provides that Ð[a]ll new development within rural

areas . . . will be directed to existing [RCs].Ñ

20. The language of both the Goal and Objective is clear

and unambiguous.

21. Establishment of new RCs in the rural areas of the

County will not guide new development to existing RCs, and will

be contrary to both the Goal and the Objective.

22. However, the Plan Amendment neither establishes new

RCs nor creates a policy supporting the establishment of new

RCs. It merely deletes a policy expressing the CountyÓs intent

not to support new RCs.

23. Absent an express policy in the CountyÓs existing

Plan, the Plan Amendment is not internally inconsistent wit h FLU

Goal 3 and Objective 3.1. 4/

24. The preponderance of the evidence does not support a

finding that the Plan Amendment creates internal inconsistencies

in the existing Plan.

Data and Analysis

25. The County agenda items for transmittal and adoption

h earings on the Plan Amendment were devoid of any supporting

data or analysis.

26. The CountyÓs transmittal package to the Department and

other reviewing agencies contained only the ordinance adopting

the Plan Amendment accompanied by a cover letter.

27. The Plan Amendment reflects a policy change by the

County to consider allowing establishment of new RCs.

28. The Plan Amendment does not change the land use of any

particul ar parcel of land in the County, and does not change the

uses allowed, or the den sity or intensity of development allowed

thereon.

29. The Plan Amendment does not, in and of itself, require

the expenditure of public funds, nor does it immediately impact

the provision of public services in the rural areas of the

County.

30. Whether th e County will establish any new RCs in the

rural areas of the County depends on whether a property owner

proposes one in the future, and whether the County approves said

proposal, after consideration of all applicable Plan policies.

31. The agenda items f or both the transmittal and adoption

hearings on the Plan Amendment contain the following as

background for the Plan Amendment:

The Escambia County Board of County

Commissioners finds that an amendment to its

Comprehensive Plan is necessary and

appropriate based on the changing needs

within the County ; and it is in the best

interest of the health, safety, and welfare

of the County to amend its Comprehensive

Plan. (emphasis added) .

32. At the final hearing, the County offered no data to

establish the Ðch anging needs within the CountyÑ referenced in

the background statement.

33. In effect, the County offered no data or analysis at

final hearing to support the Plan Amendment.

34. Mr. Jones testified that Ðthere were some discussions

[among Commissioners ] on why they were adopting this and why

they felt it was necessary.Ñ He stated, Ðthe record reflects

that they stated that basically it was to give someone an

opportunity for them to make a request to make an application

[for RC].Ñ

35. Mr. JonesÓ s hear say testimony was not corroborated by

any non - hearsay evidence.

36. In a series of leading questions, Mr. Jones affirmed

that the County Commissioners Ðfound that FLU 3.1.5 restricted

the ability of landowners to even request a change to the rural

commun ity future land use category,Ñ and Ðfound that the

[Policy] restricted the ability of landowners to construct

residences due to the density limitations of only one dwelling

unit per 20 acres.Ñ

37. Mr. JonesÓ s testimony was neither credible nor

persuasive .

38. Mr. JonesÓ s explanation of the reason for the Plan

Amendment was undermined by his subsequent testimony that the

Commission had the authority to approve a plan amendment ,

changing the designation of property from AG to RC , even without

repealing Po licy FLU 3.1.5. If that is true, there is

absolutely no basis for the Plan Amendment. 5/

39. In a series of leading questions from his counsel,

Mr. Jones agreed that Ðthis text amendment was necessary to

allow . . . existing residential areas [within AG] to change to

RC in order to come into the appropriate future land use

categoryÑ and Ðdetermined that there were areas within the

agricultural future land use designation which would benefit

from the ability to change to a rural community future land use

ca tegory.Ñ

40. However, Respondent offered no evidence of the

location of any such residential areas outside of existing RC

communities , or an explanation of why the assigned AG

designation was inappropriate . Nor did Mr. Jones expound on the

benefit the Pl an Amendment would allegedly bestow on property in

the agricultural areas. This testimony was conclusory and

lacked foundation.

41. Mr. JonesÓ s testimony was further undermined by his

refusal to speak for the Commission when questioned by the

Petitioners regarding the CommissionÓs reasons for the Plan

Amendment, contrasted with his eager agreement with leading

statements from his counsel offering reasons for the Plan

Amendment. On redirect, when Mr . Jones responded to Petitioner

Roger s Ó s question regardi ng the CountyÓs reasons for adopting

the Plan Amendment, he referred generally to Ðeconomic reasonsÑ

and vaguely referred to Ðother public reasons as she previously

stated ,Ñ deferring to his counselÓs leading questions.

(emphasis added) .

42. Mr. JonesÓ s testimony that the CommissionÓs

justification for the Plan Amendment is to allow property owners

to apply for a change is unreliable hearsay evidence, later

contradicted by his own testimony that the Commission could have

approved a land use amendment to t hat effect prior to adoption

of the instant Plan Amendment. Mr. JonesÓ s testimony is

rejected as unreliable and unpersuasive.

43. The preponderance of the evidence supports a finding

that the Plan Amendment is not supported by any relevant data or

an ana lysis thereof.

Urban Sprawl

44. PetitionersÓ final contention is that the Plan

Amendment fails to discourage urban sprawl as required by

section 163.3177(6)(a)9.

45. That section lists 13 Ðprimary indicatorsÑ that a plan

amendment does not discourage the proliferation of urban sprawl.

Of those, Petitioners allege the Plan Amendment meets the

following primary indicators:

(II) Promotes, allows, or designates

significant amounts of urban development to

occur in rural areas at substantial

distances from ex isting urban areas while

not using undeveloped lands that are

suitable for development.

(III) Promotes, allows, or designated urban

development in radial, strip, isolated, or

ribbon patterns generally emanating from

existing urban developments.

* * *

( V) Fails to adequately protect adjacent

agricultural areas and activities, including

silviculture, active agricultural and

silvicultural activities, passive

agricultural activities, and dormant,

unique, and prime farmlands and soils.

(VI) Fails to maxim ize use of existing

public facilities and services.

* * *

(VIII) Allows for land use patterns or

timing which disproportionately increase the

cost in time, money, and energy of providing

and maintaining facilities and services,

including roads, potable water, sanitary

sewer, stormwater management, law

enforcement, education, health care, fire

and emergency response, and general

government.

* * *

(IX) Fails to provide a clear separation

between rural and urban uses.

(X) Discourages or inhibits infill

development or the redevelopment of existing

neighborhoods and communities.

46. In support of this allegation, Petitioners presented

the testimony of Christian Wagley, who was accepted as an expert

in sustainable development and environmental planning.

47. Mr. Wagley testified that the Plan Amendment will

allow a forty - fold increase in density of development allowed in

the largely rural, agricultural northern county area (i.e., the

increase in density between that allowed in the Agricultural

category: 1du/20 acres -- and that allowed in RC: 2du/acre), and

significantly diminish available Agricultural lands and increase

demand for urban services outside the urban area.

48. Mr. WagleyÓs testimony is based on the assumption that

the County will actually ap prove, in the future, new RCs in the

largely agricultural northern portion of the County. That

assumption is insufficient to form the basis of a finding of

fact in the instant case.

49. The Plan Amendment does not convert any Agricultural

lands to the RC category. It does not Ðpromote, allow, or

designateÑ urban development in the rural areas of the County;

Ðpromote, allow, or designateÑ development in a radial, strip,

or isolated pattern; fail to maximize use of existing public

facilities and services, or allow for land use patterns which

disproportionately increase the cost of providing and

maintaining public facilities and services; fail to provide a

clear separation between rural and urban uses; or discourage or

inhibit infill development or redevelop ment.

50. Petitioners introduced a map depicting the U nited

S tates D epartment of A griculture prime soils overlayed on the

Agriculturally - designated lands in the County. While this map

demonstrates that prime farmland is plentiful in the northern

agricult ural area of the County, it does not prove that the Plan

Amendment fails to protect adjacent agricultural areas and

activities, passive agricultural activities, and dormant,

unique, and prime farmlands and soils.

51. The preponderance of the evidence does not support a

finding that the Plan Amendment fails to discourage urban

sprawl.

CONCLUSIONS OF LAW

52. The Division of Administrative Hearings has

jurisdiction over the subject matter and parties hereto,

pursuant to sections 120.569, 120.57(1), and 163.3 184(5),

Florida Statutes (2019).

53. To have standing to challenge or support a plan

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

section 163.3184(1)(a). Petitioners are affected persons within

the meaning of the statute.

54. ÐIn complia nceÑ means Ðconsistent with the

requirements of sections 163.3177, 163.3178, 163.3180, 163.3191,

163.3245, and 163.3248, with the appropriate strategic regional

policy plan, and with the principles for guiding development in

designated areas of critical st ate concern and with part III of

chapter 369, where applicable.Ñ £ 163.3184(1)(b), Fla. Stat.

55. The CountyÓs determination that the Plan Amendment is

Ðin complianceÑ is presumed correct and must be sustained if the

determination of compliance is Ðfair ly debatable.Ñ See

§ 163.3184(5)(c), Fla. Stat.

56. The term Ðfairly debatableÑ is not defined in

chapter 163, but the Florida Supreme Court held in Martin County

v. Yusem , 690 So. 2d 1288 (Fla. 1997), that Ð[t]he fairly

debatable standard is a highly de ferential requiring approval of

a planning action if reasonable persons could differ as to its

propriety. In other words, . . . it is open to dispute or

controversy on grounds that make sense or point to a logical

deduction[.]Ñ Id. at 1295.

57. The st andard of proof to establish a finding of fact

is preponderance of the evidence. See § 120.57(1)(j), Fla.

Stat.

Internal Inconsistencies

58. Section 163.3177(2) provides, ÐCoordination of the

several elements of the local comprehensive plan shall be a

m ajor objective of the planning process. The several elements

of the comprehensive plan shall be consistent.Ñ

59. Petitioners did not prove beyond fair debate that the

Plan Amendment created any internal inconsistencies with the

cited provisions of the Pl an.

60. Petitioners did not prove beyond fair debate that the

Plan Amendment violates section 163.3177(2).

Data and Analysis

61. Section 163.3177(1)(f) provides that Ð[a]ll . . . plan

amendments shall be based upon relevant and appropriate data and

a n analysis by the local government.Ñ Further, the statute

provides that data Ðmay include . . . surveys, studies,

community goals and vision, and other data available at the time

of adoptionÑ of the plan amendment.

62. Further, section 163.3177(6)(a)2. requires as follows:

The future land use plan and plan amendments

shall be based upon surveys, studies, and

data regarding the area, as applicable,

including:

a. The amount of land required to

accommodate anticipated growth.

b. The projected permanent and seasonal

population of the area.

c. The character of undeveloped land.

d. The availability of water supplies,

public facilities, and services.

e. The need for redevelopment, including

the renewal of blighted areas and the

elimination of nonconfor ming uses which are

inconsistent with the character of the

community.

f. The compatibility of uses on lands

adjacent to or closely proximate to military

installations.

g. The compatibility of uses on lands

adjacent to an airport as defined in

s. 330.35 and consistent with s. 333.02.

h. The discouragement of urban sprawl.

i. The need for job creation, capital

investment, and economic development that

will strengthen and diversify the

communityÓs economy.

j. The need to modify land uses and

developme nt patterns within antiquated

subdivisions.(emphasis supplied).

63. Petitioners fault the County for failing to conduct

the types of analyses listed in the statute, and argue the lack

of data collection and analysis render the Plan Amendment

violative o f the statute.

64. All plan amendments need not be supported by the same

type or amount of data. See Zemel v. Lee Cnty. , Case No. 90 -

7793 (Fla. DOAH Dec. 16, 1992; Fla. DCA June 22, 1993). ÐSome

matters of policy are obviously not susceptible to numeric al

computation.Ñ Indian Trail Imp. Dist. v. DepÓt of Cmty. Aff. ,

946 So. 2d 640, 642 (Fla. 4th DCA 2007). ÐIf amendments merely

represent a policy or directional change and depend on future

activities and assessments (i.e., further analysis and decision -

making by the local government), the Department does not require

the degree of data and analyses that other amendments require.Ñ

Id. at 641 (quoting West Palm Beach v. DepÓt of Cmty. Aff. , Case

No. 04 - 4336 (Fla. DOAH July 18, 200 5; Fla. DCA Oct. 21, 2005) ).

See also Bakker v. Town of Surfside , Case No. 14 - 1026 (Fla. DOAH

June 17, 2014; DEO Aug. 27, 2014)(plan amendments which Ðsimply

add a religious use to limited properties within the Low Density

Residential land use categoryÑ do not implicate the provis ion of

services or capital improvements, no r require the t own to take

any immediate action, and are thus aspirational in nature and

can be based on less data and analysis); Collier Cnty. v. DepÓt

of Cmty. Aff. , Case No. 04 - 1048 (Fla. DOAH Aug. 24 , 2004;

Fl a. DCA Dec. 29, 2004) (plan amendment restricting roadway

overpasses and flyovers in the City is Ðmerely a policy choice

by a local government which has a limited or cosmetic effectÑ);

Dibbs v. Hillsborough Cnty. , Case No. 12 - 1850 (Fla. DOAH Apr.

22, 2013; Fla. DEO Dec. 10, 2013); affÓd , 200 So. 3d 1 273 (Fla.

2d DCA 2015) (amendment expressing community support for

expansion of a highway to relieve traffic could be fairly

characterized as aspirational); and Dunn Creek v. City of

Jacksonville , Case No. 07 - 3539 (Fla. DOAH Dec. 28, 2009;

Fla. DCA Apr. 1, 2010) (remedial FLUM amendment changing the land

use back to its original classification can be based on less

data and analysis than other types of amendments); cf. Palm

Beach C nty . v. DepÓt of Cmty. Aff. , Case No . 95 - 5930 (Fla. DOAH

Jan. 24, 1997; Fla. A C Oct. 30, 1997) (rejecting characterization

of local governmentÓs plan amendment, which expressed the

CountyÓs desire to Ðdiscourage a connection betweenÑ two

roadways through a neighborhood, as aspirational, thus requiring

little, if any, supporting data and analysis, because the

Ðpolicy choices directly reflect land use and development

activities as they relate to transportation,Ñ and, thus, require

more data and analysis); Seminole Tribe of Fla. v. Hendry Cnty. ,

Case No. 14 - 1441 (Fla. DOAH Feb. 12, 2015 ; Fla. AC May 4, 2015)

(rejecting local governmentÓs characterization of plan

amendment, which allowed large - scale commercial and industrial

uses, as well as a broadly - defined new category of use, in all

but three l and use categories in the County, as Ðaspirational,Ñ

thus requiring little supporting data and analysis).

65. The Plan Amendment at bar is one that represents a

policy change and depends on further analysis and decision -

making by the County. As such, it is Ðnot susceptible to

numerical computation.Ñ Indian Trail , 946 So. 2d at 642. The

County is not required to undertake the types of data collection

and analyses listed in section 163.3177(6)(a)2. Moreover, by

employing the modifying phrase Ðif applica ble,Ñ the statute

indicates selective application of the listed analyses to any

particular comprehensive plan amendments.

66. However, Indian Trail does not stand for the

proposition that an aspirational amendment can be found Ðin

complianceÑ without any supporting data or analysis, but rather

that said amendments require less data and analysis. 6/

67. In Indian Trail , appellant challenged the DepartmentÓs

determination that the local governmentÓs plan amendment,

designating itself as the freshwater and wastewater service

provider to the unincorporated areas of the county, was

adequately supported by data and analysis. In affirming the

DepartmentÓs compliance determination, the court highlighted the

record evidence that :

the failure of the County itself to be a

provider had created a ÒvoidÓ in long range

utility planning resulting in duplicative

service lines, inefficient services in the

rural service area, overlapping utility

jurisdictions, and an absence of written

agreements defining service availabil ity

areas.

The CountyÓs judgment was grounded in an analysis of the impacts

stemming from its absence as a service provider in the rural

area.

68. In contrast, Escambia County provided no data or

analysis to support its policy change to allow considerat ion of

new RCs in the Agriculturally - designated areas of the County.

The background information for the agenda items include a

generalized reference to Ðchanging needs within the County,Ñ but

the record is devoid of an explanation of said changed needs.

For the reasons stated in the Findings of Fact, Mr. JonesÓ s

testimony regarding the CommissionersÓ ÐfindingsÑ in support of

the Plan Amendment was rejected as unreliable and unpersuasive.

69. In Indian Trail , the Court explained that one of the

reasons fo r administrative agency intervention in application of

policy is to Ðallow for human perceptions.Ñ Id. at 642. This

means that some questions must be Ðinformed by human judgement

of elected officials .Ñ Id. However, the Court cautioned, ÐThis

does not m ean that the rule of law gives way to a rule of

individuals.Ñ Id. Intervention is appropriate where, as here,

Ðthere is a palpable misapplication of the governing law.Ñ Id.

70. Petitioners proved beyond fair debate that the Plan

Amendment, although as pirational in nature, is not supported by

data and analysis.

71. Petitioners proved beyond fair debate that the Plan

Amendment contravenes section 163.3177(1)(f); but did not prove

the Plan Amendment contravenes section 163.3177(6)(a)2.

Urban Sprawl

72. Section 163.3177(6)(a)9. provides that any amendment

to the future land use element Ðshall discourage the

proliferation of urban sprawl.Ñ

73. Based on the foregoing Findings of Fact, Petitioners

did not prove the Plan Amendment fails to discourage urba n

sprawl.

74. Petitioners did not prove beyond fair debate that the

Plan Amendment contravenes section 163.3177(6)(a)9.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Administration Commission en ter

a final order finding Escambia County Comprehensive Plan

Amendment CPA 2018 - 02, adopted by Ordinance No. 2019 - 09 on

February 7, 2019, is not Ðin compliance,Ñ as that term is

defined by section 163.3184(1)(b), Florida Statutes.

DONE AND ENTERED this 9t h day of January , 2020 , in

Tallahassee, Leon County, Florida.

S

SUZANNE VAN WYK

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 9 th day of January , 2020 .

ENDNOTE S

1/ Except as otherwise provided herein, all references to the

Florida Statutes are to the 2018 version, which was in effect

when the Plan Amendment was adopted.

2/ Pursuant to Florida Administrative Code Rule 28 - 106.216(2),

the parties waived the requirement that this Recommended Order

be issued within 30 days after the date on which the Tra nscript

was filed.

3/ Contrary to RespondentÓs representation in its Proposed

Recommended Order, Mr. LemosÓ s testimony does not support a

finding that the ÐCounty has reached a point where development

north of the [DSAP] is necessary.Ñ In the following testimony,

Mr. Lemos confirmed his opinion as expressed in August 2018:

Q: So for the particular application when

you said we havenÓt got to the point where

we need those agricultural lands to build

homes, are you saying that what you said in

August of 2 018, are you saying thatÓs not

true anymore?

A: No.

Q: No?

A: No.

Q: And you also said the sector plan . . .

was needed to keep development where it

needed to go. You said, thatÓs why the

sector plan was created, Line 6, so that we

could keep the development where it needed

to go and to protect the agrarian and rural

lifestyle of those areas?

A: And thatÓs what was stated.

Q. You still agree with that?

A: Yes maÓam.

4/ Rather, any future plan amendment to establish an RC will be

subject to review for consistency with this Goal and Objective,

as well as applicable policies.

5/ Furthermore, t his testimony is unreliable and unpersuasive.

Approving such a change would require the County Commission to

completely disregard the existing Plan.

6 / Similarly, the cited administrative orders have required at

least a modicum of data and analysis for aspirational plan

amendments to meet the statutory requirement. For example, in

Dunn Creek , the Administrative Law Judge (ÐALJÑ) found that Ðthe

amount and type of data presented [to support the CityÓs

remedial plan amendment] are relevant and appropriate.Ñ Dunn

Creek v. City of Jacksonville , DOAH Case No. 07 - 3539, RO at 29.

In Bakker , the TownÓs aspirational plan amendment was supported

by the finding s from a community charrette process, the

settlement agreement from prior litigation, and data supporting

maps created by the t own, among other data. Bakker v. Town of

Surfside , DOAH Case No. 14 - 1026, RO at 17. In Collier County ,

the ALJ found the County Ós aspirational amendment to restrict

overpasses and flyovers in the County, supported by data and

studies, available at the time the amendment was adopted, that

Ðoverpasses can cause traffic impacts by moving congestion from

one intersection to another,Ñ that Ðimprovements which improve

long - term vehicle flow in the City will also impact the County,Ñ

and Ðcitizen concerns about the traffic impacts of intersections

and their desire to seek alternatives to overpasses before

authorizing one to be built.Ñ Col lier C nty . v. DepÓt of Cmty.

Aff. , DOAH Case No. 04 - 1048, RO at 14.

COPIES FURNISHED:

Anne Bennett

Post Office Box 3571

Pensacola, Florida 32516 - 3571

Theresa Blackwell

9535 Tower Ridge Road

Pensacola, Florida 32526

Cynthia Cole

3101 Highway 97

Molin o, Florida 32577

Jacqueline A. Rogers

1420 Ridge Way

Cantonment, Florida 32533 - 7991

(eServed)

Allison Rogers, Esquire

Escambia County

221 South Palafox Street

Pensacola, Florida 32502 - 5837

Kia M. Johnson, Esquire

Office of the Escambia County Attorne y

Suite 430

221 Palafox Place

Pensacola, Florida 32502 - 5837

(eServed)

William Chorba, General Counsel

Department of Economic Opportunity

Caldwell Building, MSC 110

107 East Madison Street

Tallahassee, Florida 32399 - 4128

(eServed)

Ken Lawson, Executive D irector

Department of Economic Opportunity

Caldwell Building

107 East Madison Street

Tallahassee, Florida 32399 - 4128

(eServed)

Taya Orozco, Agency Clerk

Department of Economic Opportunity

Caldwell Building

107 East Madison Street

Tallahassee, Florida 32 399 - 4128

(eServed)

James Uthmeier, Esquire

Office of the General Counsel

Executive Office of the Governor

Suite 209, The Capitol

400 South Monroe Street

Tallahassee, Florida 32399 - 0001

(eServed)

Barbara Leighty, Clerk

Transportation and Economic Develop ment

Policy Unit

Room 1802, The Capitol

Tallahassee, Florida 32399 - 0001

(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 Recommended Order should be filed with the agency that

will issue the Final Order in this case.