19-006725GM Travis Cortopassi vs. Franklin County Board Of County Commissioners Status: Closed Recommended Order on Friday, March 5, 2021.

Summary: Petitioner did not prove beyond fair debate that Franklin County?s Ordinance No. 2019-10 was not ?in compliance? as that term is used in section 163.3184(1)(b), Florida Statutes.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

T RAVIS C ORTOPASSI ,

Petitioner ,

vs. Case No. 19 - 6725GM

F RANKLIN C OUNTY B OARD OF C OUNTY

C OMMISSIONERS ,

Respondent,

and

J AMES W ARD ,

Intervenor .

/

R ECOMMENDED O RDER

A duly - noticed final hearing was held in this matter on February 10

and 11, 2020, in Apalachicola, Florida, before Francine M. Ffolkes , an

Administrative Law Judge with the Division of Administrative Hearings

(DOAH).

A PPEARANCES

For Petitioner:

Sidney C. Bigham, III, Esquire

Berger Singerman LLP

313 North Monroe Street, Suite 301

Tallahassee, F lorida 32301

For Respondent :

Thomas M. Shuler, Esquire

The Law Office of Thomas M. Shuler, P.A.

40 4 th Street

Apalachicola, Florida 32320

David A. Theriaque, Esquire

Theriaque & Spain

433 North Magnolia Drive

Tallahassee, Florida 32308 - 5083

For Intervenor:

Daniel W. Hartman, Esquire

Hartman Law Firm, P.A.

Post Office Box 10910

Tallahassee, Florida 32302

S TATEMENT O F T HE I SSUE S

The issues to be determined in this proceeding are: (1) w hether the small

scale development amendment to the Franklin County Comprehensive Plan's

Future Land Use Map (FLUM), adopted by Ordinance No. 2019 - 10 on

November 19, 2019 (Ordinance), is " in compliance " under section

163.3184(1)(b), Florida Statutes ; and (2) whether the Ordinan ce was adopted

in conformity with the requirements of section 1 63.3187(3).

P RELIMINARY S TATEMENT

On November 19, 2019, the Franklin County B oard of County

Commissioners (County) adopted the Ordinance that changed the FLUM

designation from Residential to Commercial, for property located at 1015 U.S.

Highway 98, Eastpoint, Florida. The property is owned by Intervenor James

Ward (Ward) .

On December 19, 2019, Petitioner filed a Petition for Formal

Administrative Hearing with DOAH . On February 4, 2020, DOAH accepted

Petitioner's Second Amended Petition. The parties filed their Joint Pre -

Hearing Stipulation on February 7, 2020.

The f inal h earing was held on February 10 and 11, 2020. The parties'

Joint Exhibits 2 through 5, 8 through 10, 13 through 15, 17, 18, 20, 22, 24

through 29, 31, 34, and 36 were admitted into evidence. Petitioner introduced

the testimony of David Depew ( Depew ) , Ph . D . , AICP, accepted as an expert in

comprehensive planning, planning policy analysis, land use and zoning, and

transportati on planning; Jeri Curley, M.S., CFEA, REPA, accepted as an

expert in wetland delineation and quality, ecology (vegetation and protected

species), wetlands, flora, fauna, and Bald Eagle biology; Allen Stewart, P.E.,

accepted as an expert in surface and groundwater water resource

management, nutrient pollution management, wastewater collection,

conveyance, treatment and disposal design , sludge management, stormwater

management and flood routing, wetland resource management, and

environmental assessments . Travis Cortopassi and Sandy Cortopassi were

fact witness es. Petitioner's Exhibits 2 through 7, 10, 12, 18, 19, 22, 23 , 24

( excluding the audio), 25 through 27, 33, 34 through 40, 55, and 56 were

received into evidence.

Respondent introduced the testimony of Mark Curenton ( Curenton ) ,

accepted as a fact witness and as a n expert in comprehensive planning, land

use, zoning, and development. Mr. Curenton did not claim to be an expert in

any other areas. Respondent ' s Exhibits 1 through 7 were received into

evidence.

Intervenor Ward testified on his own behalf , and also relied on the parties'

Joint Exhibits and the individual exhibits that Petitioner and Respondent

moved into evidence.

The parties did not file a t ranscript of the final hearing with DOAH. 1

1 The Co unty was the agency responsible for preserving the record. The County chose to do so

using mechanical audio recording. The recording was made available to the undersigned and

was reviewed in the preparation of this Recommended Order.

The parties timely filed their p roposed r ecommended o rders on April 17,

2020, which have been carefully considered in the preparation of this

Recommended Order.

On February 10, 2021, the County filed a Motion to Dismiss for Lack of

Standing or, in the alternative, Motion to Reopen the Evidence (Motion). The

Motion is denied for the reasons stated in the Conclusions of Law.

References to the Florida Statutes are to the 2019 version, unless

otherwise indicated .

F INDINGS OF FACT

The following Findings of Fact are based on the stipulations of the parties

and the evidence adduced at the final hearing.

The Parties and Standing

1. Petitioner owns land within the County that is directly adjacent to the

Ward property . Petitioner submitted objections during the period of time

beginning with the p ublic n otice and hearing on the proposed Ordinance and

ending with the adoption of the Ordinance. Petitioner is an affected person

under sections 163.3184(1)(a) and 163.3187(5)(a).

2. The County is a local government with the duty and authority to adopt

and amend a comprehensive plan under section 1 63.3167 .

3. Intervenor Ward owns the currently vacant property located at 1015

U.S. Highway 98, Eastpoint, Florida , directly adjacent to Petitioner's

property.

Background

4. The Ward property is bisected by U.S. Highway 98 , bounded on the east

b y State Road 65, on the n orth by CC Overland Road, on the s outh by the

waters of St. George Sound , and on the west by Petitioner's property. The

property consists of approximately 7.68 acres with 0.74 acres located south of

U.S. Highway 98, and 6.94 acres located north of U.S. Highway 98. At the

U.S. Highway 98 and State Road 65 intersection, and across from the Ward

property, is a parcel also designated as Commercial on the County's FLUM.

5. The Ward p roperty is located within an approximate one - mile radius of

the County's landfill, a Cou nty consolidated K - 12 public school, a sand mine,

the Humane Society Animal Shelter, two commercial RV parks, and a small

restaurant, and is across State Road 65 from approximately 13 acres of

commercially zoned property.

6. The Ward property is also within 1,000 feet of St. George Sound. The

waters of St. George Sound are part of the Apalachicola National Estuarine

Research Reserve ( Apalachicola N ERR) and are designated as Outstanding

Florida Waters (OFW).

7. The County p lanner , Mr. Curenton, testified that some portions of the

Ward property south of U.S. Highway 98 could be developed under the

Ordinance and concurrent rezoning, the County's Comprehensive Plan , and

land development regulations (LDRs). This testimony conflicted with the

p arties ' stipulation that the County would disallow any development on that

area. See Joint Prehearing St ipulation at page 1 9, ¶20 . This stipulation may

not bind the County Ô s future actions, and , as such , the Ordinance must be

reviewed without considering that stipulation.

8. On September 4, 2019, Mr. Ward appli ed for a small s cale development

amendment t o change the future land use ( FLU ) designation of his property

from Residential to Commercial , which was approved on November 19, 2019,

by the Ordinance. The application also included a request to rezone the

property from Single Family Residential/Single Family Home Industry ( R -

1/R - 4 ) to Commercial Business ( C - 2 ) , which was approved on November 19,

2019 , by Ordinance No. 2019 - 11. That rezoning request was not challenged in

this administrative proceeding.

9. The Commercial FLU designation is described in the Comprehensive

Plan as follows :

Commercial: This category of land use shall provide

suitable location for commercial activities. There is

no minimum lot size, width, or depth; however,

existing lots may not be subdivided. Commercial

land adjacent to waters of Apalachicola Bay shall

be developed as a last resort and shall be reserved

for water dependent activities. Commercial land

may have residential s tructures so long as the

development protects the residential land from any

detrimental impact caused by the surrounding

commercial land. Protective measures may include

additional setbacks, buffers, or open space

requirements. The location of these lands is

mapped on the Future Land Use Map series.

All commercial structures or accessory structures

shall conform to the applicable standards

established in the Franklin County Zoning Code,

Critical Shoreline District Ordinance, Flood Hazard

Ordinance, or the Coastal Construction Code

Ordinance.

The intensity standard for commercial land shall be

a floor - to area ratio (FAR) of not more than 0.50.

On St. George Island the floor - to - area ratio shall

not exceed 1.0, except in Block 6 East where the

floor - to - area ratio shall not exceed 2.0, as long as

the following four criteria are met: (1) at least 33%

of the floor area will be strictly commercial space,

(2) this 2.0 floor - to - area ratio shall not be applied to

waterfront properties, (3) the advanced wastewater

tr eatment plant to serve the development will be

constructed above the Category 4 storm surge

elevation, and ( 4) all stormwater must be contained

and treated on site.

10. The CountyÔs application form is titled " Application For Re - Zoning &

Land Use Change. " Th us, the CountyÔs policy is to review and consider both

requests concurrently and to obtain a concept plan showing the property

owner Ô s intentions for the site. This is consistent with the purpose of this type

of FLU M amendment, which proposes a land us e change " for a site - specific

small scale development activity. "

11. Mr. Ward also submitted a draft site plan laying out his concept for

potential development of the property. The draft site plan was provided in

response to a request from the County as p art of the application review

process . The draft site plan depicted a convenience store, pump islands with

12 gas pumps, 24 fueling stations, a parking lot with 66 parking spaces,

dumpster pads and dumpsters, a car wash, possibly with above ground

storage tanks, and a number of unspecified retail uses on the property .

12. The area of the County where the Ward property i s located was

de - d esignated as an area of critical state concern under the premise that the

County ' s Comp rehensive Plan and LDRs are suffi cient to protect the areaÔs

important state resources . It is , therefore , particularly important for the

County to enforce its Comp rehensive Plan and LDRs as written, since the

state land planning agency found that doing so is necessary to protect critical

state resources.

Petitioner's Challenge

13. Petitioner challenge d the Ordinance on the grounds that: (1) the

Ordinance was not adopted in accordance with the requirements applicable to

small scale development amendments in rural areas of opportunity; (2) the

Ordinance w as not based on relevant and appropriate data and analysis; and

( 3 ) the Ordinance was inconsistent with applicable provisions of the County's

Comprehensive Plan . 2

Rural Area of Opportunity

14. Petitioner allege d that the Ordinance was not adopted in accordance

with the requirements of section 1 63.3187(3) regarding property located in a

2 Petitioner argued that consistency with the County's LDRs was at issue. However ,

consistency with LDRs is not specific to section 163.3177(2). Further, consistent with the

undersigned's ruling during the final hearing, whether the Ordinance constituted sp ot

planning, spot zoning, or strip zoning was not at issue in this plan amendment compliance

determination under section 163.3184(1)(b).

designated rural area of opportunity . The statutory requirements include the

making of ce rtain certifications by the County to the state land planning

agency " that the plan amendment furthers the economic objectives set forth

in the executive order issued under s. 288.0656(7) . " An additional statutory

requirement is that " the property subject to the plan amendment shall

undergo public review to ensure that all concurrency requirements and

federal, state, and local environmental permit requirements are met. " The

statutory language does not allow th e required " public review " to occur at a

later d ate than the adoption of the small scale development plan amend ment.

15. Executive O rder 15 - 1 33 recognizes that the subject rural communities,

which include Franklin County , " are stewards of the vast majority of

FloridaÔs land and natural resources, upon which the StateÔs continued

growth and prosperity depend[.] " The economic ob jectives set forth in the

executive order includ e job - creating activities, education, and critical

government services, such as infrastructure, transportation, and safety.

16. T he executive order recognizes that the rural area of opportunity

designation is contingent on the execution of a memorandum of agreement

between the state land planning agency, the counties , and municipalities.

The uncontroverted evidence established that a memorandum of agreement

does not exist between the County and the state land planning agency.

17. During the pendency of this proceeding, and after the adoption date of

the Ordinance, t he County submitted a written certification to the state land

planni ng agency on January 23, 2020, as amended on February 3, 2020. The

undisputed evidence established that the County did not subject the proposed

small scale development plan a mendment " to public review to ensure that all

concurrency requirements and federal, state, and local environmental permit

requirements are met. "

18. The preponderance of the evidence established that because the

contingency of a memorandum of agreement was not accomplished, the rural

area of opportunity designation is without le gal effect.

19. Petitioner did not prove beyond fair debate that the Count y is a

designated rural area of opportunity and was required to comply with the

requirements of section 163.3187(3).

Relevant and Appropriate Data and Analysis

20. " 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 adoption of the plan or plan amendment at issue. " §

163.3177(1)(f), Fla. Stat. Specific types of data and analysis are relevant for

this small scale development FLUM amendment. See § 163.3177(6)(a)2.

a nd 8., Fla. Stat.

The character of undeveloped land.

21. The County considered data from professionally accepted sources and

applied an analysis based on the data and the expertise of County staff.

22. The County considered the character of the undeveloped Ward

property, the soils, the topography, the natural resources, and the historic

resources. The County's planner and expert witness , Mr. Cur enton , has

wor ked in the County's planning department for more than 30 years. He

testified that he analyzed the small scale development amendment

application, gathered relevant data, and prepared the staff recommendations.

23. Mr. Curenton considered the topography of the Ward property and

concluded that while the parcel generally slopes to the south, the parcel itself

is without any excessive topographic relief.

24. Mr. Curenton consulted the National Wetlands Inventory (NWI)

produced by the United States Fish and Wil dlife Service . He concluded that

there were no natural drainage features on the Ward property, but there may

be a wetland along part of the southwest corner of the parcel. Based on his

review of the NWI, Mr. Curenton concluded that there would be sufficient

uplands to support a future commercial development on the Ward p roperty.

However, a formal wetlands delineation and compliance with applicable

setbacks from wetlands would be required for any future site plan approval .

25. Mr. Curenton reviewed the F lorida Fish and Wildlife Conservation

Commission Ôs Bald Eagle Nest Locator and determined that no bald eagle

nests were shown on the Ward p roperty. He also considered his local

knowledge of the Ward property. The parcel was clear - cut of trees, except for

a small buffer strip of trees along its western border . He determined that it

was not a habitat suitable for black bear or the red - cockaded woodpecker.

26. The Franklin County Soil Atlas was reviewed by Mr. Curenton. He

c oncluded that the predomina nt soil conditions were poor, a fact that is true

throughout Franklin County . Thus, the soil conditions for the Ward p roperty

w ere equally suited for residential or commercial development.

27. Mr. Curenton testified that the Ward p roperty generally slopes to the

south. He also considered that there are existing drainage ditches i n the

right - of - way of State Road 65 along the eastern boundary of the parcel, as

well as a drainage ditch in the right - of - way of U.S. Highway 98 along the

southern boundary of the p arcel, and a culvert that runs under U.S. Highway

98. Mr. Curenton took into consideration that any future commercial

development would be required to treat its sto rmwater o n site and would be

prohibited from direct ly discharg ing to St. George Sound.

28. M r. Curenton considered the Franklin County Flood Hazard

Ordinance, as well as the Northwest Florida Water Management District

flood maps . He concluded that the Ward p roperty was buildable on grade,

though, depending upon an actual future site plan, some pa rt s of the

structure may have to be floodproofed.

29. T he Franklin County Hazard Mitigation Ï Wildfire Hazard Level of

Concern Map was reviewed by Mr. Curenton. He concluded that the level for

the area of the Ward p roperty was very low, which is suitable fo r future

development.

30. Mr. Curenton checked the Florida Master Site File and found that it

did not contain any identifiable cultural resources on the Ward property.

The availability of water supplies, public facilities, and services.

31. T he availability of public water and sewer to serve a future

commercial development upon the Ward p roperty was considered by Mr.

Curenton . He had personal knowledge that the Eastpoint Water and Sewer

District (EWSD) ha d both a water and sewer line along the northern

boundary of the Ward property . In addition, his review included a letter from

EWSD stating that it ha d existing capacity to provide both water and sewer

services to a future commercial development on the subject parcel.

32. Mr. Curenton reviewed the Franklin County level of service adopted in

the Comprehensive Plan for State Road 65 and U.S. Highway 98. He also

evaluated the 2018 traffic counts shown on the Florida Department of

Transportation Ô s (FDOT) website , and the relationship betwe en the level of

service and the traffic counts contained in the 2012 FDOT Quality/Level of

Service Handbook for State Road 65 and U.S. Highway 98. He concluded that

any approved future commercial development on the subject parcel would not

adversely impact the traffic level of service for either State Road 65 or U.S.

Highway 98.

The need for job creation, capital investment, and economic development .

33. Mr. Curenton considered that the construction of future approved

development on the Ward p roperty would provide construction jobs . In

addition, future commercial uses would provide stable employment. He also

considered that future commercial uses would generate sales tax revenues

and increased ad valorem taxes.

The discouragement of urban sprawl .

34. Mr. Curenton t estified that he did not have specific experience in

evaluating what does and does not constitute urban sprawl development .

However, he testified that he did rely on the EWSD letter regarding

availability of public water and sewer lines alon g the northern boundary of

the Ward property. Other undisputed facts include that this is a small scale

development FLUM amendment involving one parcel of approximately

7.68 acres . The parcel is located in the Eastpoint Urban Service Area (USA).

This USA was s pecifically created for potential commercial uses since it is the

only area in unincorporated Franklin County where public water and sewer

utilities are provided.

35. PetitionerÔs planning expert, Dr. Depew, presented an expert report

and testimony that the Ordinance fail ed to discourage urban sprawl.

However, Dr. DepewÔs analysis glossed over the undisputed relevant facts .

T hose undisputed material facts bel ie positive f inding s on the primary

indicators of urban sprawl, such as, that the Ordinance designates for

development " substantial areas of [Franklin County] ; " that the Ordinance

designates " significant amounts of urban development to occur in rural areas

at substantial distances from existing urban areas ; " and that the Ordinance

allows for land use patterns or timing that increase the costs of providing and

maintaining roads, water and sewer, stormwater management, and general

government.

36. Dr. Depew and the other experts presented by Petitioner, testified to a

level of data co llection and analysis that cumulatively outpaced the CountyÔs

level of data review and analysis. However, the preponderance of the

evidence established that the County relied on data from professionally

accepted sources ; relied on data that was relevant and appropriate to the

subject being considered ; and reacted to that data in an appropriate way.

37. The extensive data and analyses presented by PetitionerÔs expert

witnesses were more directed to whether the rezoning co mplied with the

Comprehensive Plan, the CountyÔs LDRs , and federal , state , and local

environmental permitting requirements . T h ese issues are outside the scope of

this FLUM amendment compliance challenge.

38. Petitioner did not prove beyond fair debate that the Ordinance w as not

supported by relevant and appropriate data and analysis. Petitioner did not

prove beyond fair debate that the County did not take data from

professionally accepted sources.

39. Petitioner did not prove beyond fair debate that the Ordinance did not

react appropriately to the data and analysis collected and reviewed by the

County .

40. It is fairly debatable that the Ordinance reacts appropriately to the

data and analysis collected and reviewed by the County .

Consistency

41. Petitioner challenged the Ordinance as contrary to section

163.3177(2), which requires the several elements of the comprehensive plan

to be consistent. Section 163.3177(2) states that " [c]oordination of the several

elements of the local comprehensive plan shall be a major objective of the

planning process. "

42. Petitioner allege d that the Ordinance is inconsistent with several

g oals, o bjectives, and p olicies in the County's Comprehensive Plan. The

Or dinance changes the FLU designation of the Ward p roperty but is not a

development order. In addition, consistency with the CountyÔs LDRs is not at

issue in this proceeding.

43. Petitioner alleged that the Ordinance was internally inconsistent with

FLU Element Policy 3.1, which reads as follows:

Development, alteration of native vegetation, and

habitable structures within 50 feet landward of

wetlands or the waters of the State is prohibited,

except as allowed pursuant to Policies 1.2d, 1.6 and

1.7 of thi s Element and Policies 1.1, 1.2 and 1.5 of

the Coastal Conservation Element. The landward

extent of a surface water in the State for the

purposes of implementing this policy is as defined

in Chapter 62 - 340.600, FAC.

44. The Ordinance is not a development order, and did n ot authorize any

development activities, including any physical development, alteration of

native vegetation, or habitable structures within 50 feet landward of

wetlands or waters of the State. Thus, FLU Element Policy 3.1 was not

applicab le to the Ordinance.

45. The Ordinance was not internally inconsistent with FLU El ement

Policy 3.1.

46. Petitioner alleged that the Ordinance was internally inconsistent with

Coastal Conservation Element Policy 5.9, which states that " [t] he County

shall limit impervious coverage of lots in the Critical Shoreline District to

20%. "

47. The Ordinance is not a development order and did not authorize any

development activities . Thus, the Ordinance did not conflict with the

County's ability to limit impervious coverage of lots.

48. The Ordinance was not internally inconsistent with Coastal

Conservation Element Policy 5.9.

49. Petitioner challenged the Ordinance as internally inconsistent with

Coastal Conservation Element Policy 10.3, which provides that " [t] he C ounty

shall continue to implement the Critical Shoreline District Ordinance which

designates environmentally sensitive lands. " The Ordinance did not interfere

with the ability of the County to implement its Critical Shoreline District

Ordinance. As pre viously found, the Ordinance is not a development order,

and did not authorize any development activities .

50. The Ordinance was not i nternally inconsistent with Coastal

C onservation E lement Policy 10.3.

51. Petitioner contended that the Ordinance was in ternally inconsistent

with Intergovernmental Coordination Element Policy 4.3, which states that

" Franklin County s hall allows [sic] the Apalachicola [NERR ] to coordinate

with agencies having jurisdictional authority over their prospective land

holdings on the location of threatened and endangered species that will be

impacted by future development on property contiguous with the portion of

the Reserve where the threatened and endangered species naturally exist. "

52. The Ordinance did not prohibit the Apala chicola N ERR from

coordinating with agencies concerning future development contiguous with

the Reserve. Again, t he Ordinance is not a development order and did not

authorize any development activities . Thus, Intergovernmental Coordination

Element Policy 4.3 was not applicable to the Ordinance.

53. The Ordinance was not internally inconsistent with

Intergovernmental Coordination Element Policy 4.3.

54. Next, Petitioner claimed that the Ordinance was in ternally

inconsistent with Intergovernmental Coordination Element Policy 7.1(h),

which provides that " [t] he County shall provide opportunity for the School

District to comment on comprehensive plan amendments, re - zonings, and

other land use decisions which may be projected to impact on the public

s chools facilities plan. "

55. Mr. Curenton testified that the Ordinance would not impact the public

schools facilities plan because the Ward p roperty was proposed for

commercial use with no residential component. Thus, the Ordinance was not

internally inconsistent with Intergovernmental Coordination Element

Policy 7.1(h).

56. Petitioner challenged the Ordinance as internally inconsistent with

Coastal Conservation Element Objective 19, which provides that " [t]h e

County will continue to support scenic roads designated in Franklin County

in order to help preserve the area's natural beauty. " Petitioner also alleged

that the Ordinance was internally inconsistent with Coastal Conservation

Element Policy 19.1, which pro vides that " U.S. Highway 98 within the

County shall be designated a scenic road along the coast. "

57. The Ordinance is not a development order and did not authorize any

development activities . The Ordinance would not prevent the County from

supporting the designation of U.S. Highway 98 as a scenic road.

58. The Ordinance was not internally inconsistent with Coastal

C onservation Element Objective 19 or Policy 19.1 .

59. Next, P etitioner challenge d the Ordinance as internally inconsistent

with Coastal Conse rvation Element Policy 19.2, which states that

" [p] roperties between designated scenic roads and wetlands or open water

shall be zoned the lowest density allowed for their respective future land use

categories. " This policy is related to the zoning classif ication assigned to

specific property. The Ordinance at issue in this proceeding did n ot rezone

the Ward p roperty.

60. Thus, Coastal Conservation Element Policy 19.2 did not apply to the

Ordinance. The Ordinance was not internally inconsistent with Coastal

Conservation Element Policy 19.2.

61. Petitioner next allege d that the Ordinance was internally inconsistent

with Coastal Conservation Element Policy 19.3, which states that " [S] ite Plan

requirements for areas between designated scenic roads and w etlands or

open water shall require the use of native vegetation in landscaping,

separation of buildings by at least 20 feet along the axis of the road, and the

avoidance of fencing or landscaping that would obstruct views of wetlands or

open water. "

62. The Ordinance is not a development order and did not authorize any

development activities . The Ordinance did not in terfere with the ability of the

County to implement the stated site plan requirements for areas between

designated scenic roads and wetlands or open waters .

63. Thus, Coastal Conservation Element Policy 19.3 was not applicable to

the Ordinance. The Ordinance was n ot internally inconsistent with Coastal

Conservation Element Policy 19.3.

64. Petitioner challenged the Ordinance as internally inc onsistent with

FLU Element Policy 3.4, which states: " Limit the area of impervious surfaces

on developed lots within the Critical Shoreline District to a maximum of

20%. " Nothing in the Ordinance prohibit ed or interfere d with the County's

ability to limit the area of impervious surfaces within the Critical Shoreline

District. Again, t he Ordinance is not a development order and did not

authorize any development activities .

65. Thus, FLU Element Policy 3.4 was not applicable to the Ordinance.

The Ordinance was not internally inconsistent with FLU Element Policy 3.4.

66. Petitioner challenge d the Ordinance as internally inconsistent with

Coastal Conservation Element Objective 2, which reads: " The County will

support the conservation and protection of native vegetation, ecological

communities, fish and wildlife habitat to the extent that the County will

prohibit development which can be proved to damage the County's natural

resources. "

67. Once again, t he Ordinance is not a development order and did not

autho rize any development activities . Nothing in the Ordinance prohibited or

interfered with the County's ability to " support " the conservation and

protection of native vegetation, ecological communities, and fish and wildlife

habitat by prohibiting development that is ultimately proven to damage the

County's natural resources.

68. Thus, Coastal Conservation Element Objective 2 was not applicable to

the Ordinance. The Ordinance was not internally inconsistent with Coastal

Conservation Element Objective 2.

69. Petitioner next allege d that the Ordinance was internally inconsistent

with Coastal Conservation Element Policy 2.6, which states that " [t] he

County's [LDRs] shall prohibit the development and disturbance of nesting

areas of endangered species, threatened species, and species of special

concern, including the nesting areas of sea turtles. "

70. As previously noted, the County's LDRs are not at issue in this

proceeding. Further, nothing in the Ordinance prohibited the County's LDRs

from i ncluding such restri ctions.

71. Thus, Coastal Conservation Element Policy 2.6 was not applicable to

the Ordinance. The Ordinance was not internally inconsistent with Coastal

Conservation Element Policy 2.6.

72. Next, Petitioner challenge d the Ordinance a s internally inconsistent

with Coastal Conservation Element Policy 2.11, which provides that " [t] he

County shall protect sea turtles through land development regulations which

prohibit disturbance of nesting areas, prohibit inappropriate beachfront

lighting, and requir e low intensity lights, seasonal and timed lights, reflective

tint on beachfront windows, and shading. "

73. As noted above, LDRs are not relevant to a plan or plan amendment

compliance determination. Further, nothing in the Ordinance prohibit ed the

County from protecting sea turtles through its LDRs.

74. Also, the Ordinance did not authorize development or any

development activities. Coastal Conservation Element Policy 2.11 was not

applicable to the Ordinance.

75. The Ordinance was not internally incons istent with Coastal

C onservation Element Policy 2.11.

76. Petitioner contend ed that the Ordinance was in ternally inconsistent

with Housing Element Policy 9.3, which provides : " Continue to implement

the provisions of the Critical Shoreline District so that coastal and wetlands

habitat can coexist with residential development. " The Ordinance did not

a uthorize development or any development activit ies, let alone residential

development.

77. N othing in the Ordinance impeded the County's ability to continue to

implement the provisions of the Critical Shoreline District. Housing Element

Policy 9.3 was not applicable to the Ordinance.

78. The Ordinance was not internally inconsistent with Housing Element

Policy 9.3.

79. Petitioner next challenge d the Ordinance as internally inconsistent

with FLU Element Policy 1.1, which states:

The Future Land Use Maps will be reviewed to be

sure that adequate infrastructure is in place before

areas are permitted for development.

Adequate infrastructure is defined as the

infr astructure necessary to maintain the adopted

levels of service in this plan. The County shall not

issue development orders that will degrade the

existing levels of service below that level adopted

as the minimum in this Comprehensive Plan.

80. As previous ly noted, the Ordinance did not authorize development or

any development activities. N othing in the Ordinance prevented the County

from ensuring that adequate infrastructure is in place prior to issuing any

development orders.

81. Thus, FLU Element Policy 1.1 was not applicable to the Ordinance.

The Ordinance was not internally inconsistent with FLU Element Policy 1 .1.

82. Petitioner challenge d the Ordinance as internally inconsistent with

FLU Element Policy 1.2(a), which provides as follows :

The Future Land Use Maps will be reviewed to

insure that the proposed uses, in the various

categories, do not conflict with the prevailing

natural conditions including: (a). SOIL

CONDITIONS - When the US Soil Conservation

Service completes and publishes the maps of their

soil survey for Franklin County the County will

coordinate the land use maps with the soil survey

maps to ensure that areas proposed for

development have soils suitable to support the

proposed development.

83. The Ordinance did n ot auth orize development activity on the Ward

p roperty. N othing in the Ordinance prevented the County from reviewing its

FLUM to ensure that proposed uses do not conflict with prevailing soil

conditions. Mr. Curenton also testified that t he Franklin County Soil A tlas

d id not prohibit commercial development based upon the prevalent soil types

on the Ward p roperty , and the soil types are suitable to support commercial

uses.

84. The Ordinance was not internally inconsistent with FLU Element

Policy 1.2(a).

85. The Petitioner next allege d that the Ordinance was internally

inconsistent with FLU Element Policy 1.2(b), which states:

The Future Land Use Maps will be reviewed to

insure that the proposed uses, in the various

categories, do not conflict with the prevailing

natural conditions including: . . . (b)

TOPOGRAPHY - Areas of excessive topographical

relief shall classified for low density development.

86. The Ordinance did not prevent t he County from reviewing its FLUM

to ensure that proposed uses do not conflict w ith prevailing topographic

conditions. Mr. Curenton also testified that , although , the Ward property

slopes from the north to the south, it does not have any excessive

topographical relief.

87. The Ordinance itself did not authorize development or any

development activities. The Ordinance was not internally inconsistent with

FLU Element Policy 1.2(b).

88. Petitioner also challenged the Ordinance a s internally inconsistent

with FLU Element Po licy 1.2(c), which provides , in pertinent part , that

" [n]atural drainage features will be protected and preserved to ensure the

continuation of their natural function. "

89. T he Ordinance did not prevent the County from reviewing its FLUM

to ensure that pr oposed uses do not conflict with prevailing drainage

conditions. Mr. Curenton testified that the Ward property does not have any

natural drainage features.

90. Also, given that the Ordinance did not aut horize any development

activity, it did not impact a ny potential natural function of a ny alleged

d rainage feature on the Ward p roperty.

91. The Ordinance was not internally inconsistent with FLU Element

Policy 1.2(c).

92. Petitioner claimed that the Ordinance was int ernally inconsistent with

FLU Element Policy 1.2(d), which provides , in pertinent part , that " [n] o

development wi ll be allowed within 50 feet of wetlands, except as allowed

pursuant to Policies 1.6 and 1.7 of this element, Policies 1.1 , 1.2 , and 1 .5 of

the Coastal Conservation Element or as p rovided in paragraphs 1 - 6 below. "

93. The Ordinance itself did not prevent the County from reviewing its

FLUM to ensure that proposed uses do not conflict with prevailing wetland

conditions. In addition, Mr. Curenton testified that to the extent a wetland

may exist in the southwest corner of the Ward property, t he 50 - foot setback

requirement would be enforced upon the submission of a development

application and site plan in the future.

94. The Ordinance itself did not authorize development or any

developm ent activities. Thus, the 50 - foot setback requirement was not

relevant in this context.

95. The Ordinance was not internally inconsistent with FLU Element

Policy 1 .2(d).

96. Next, Petitioner challenge d the Ordinance as internally inconsistent

with FLU Element Policy 1.2(e), which provides , in pertinent part , that " [a]ny

structural development will have to comply with the County's Flood Hazard

Ordinance which regulates construction within flood prone areas. "

97. The Ordinance itself did not prevent t he County from reviewing its

FLUM to ensure that proposed uses do not conflict with prevailing floodplain

conditions. Mr. Curenton testified that the County's Flood Hazard Ordinance

would be enforced upon the submission of a development application and site

plan for the Ward property in the future. The Flood Hazard Ordinance was

not relevant because the Ordinance did not authorize any structural

development on the Ward property.

98. The Ordinance was not internally inconsistent with FLU Element

Policy 1 .2(e ).

99. P etitioner next challeng ed t he Ordinance as internally inconsistent

with FLU Element Policy 1.2(f), which states , in pertinent part:

T he adopted Wildfire Hazard Level of Concern map

within the Future Land Use Map series will be

used to identify areas of high risk for wildfire

(Level of Concern 6 or higher). The potential

wildfire risk will be considered when making land

use decisions in these areas. Large - scale land use

and development plans in areas of high risk for

wildfires must complete and i mplement a wildfire

mitigation plan, consistent with the Florida

Department of Community Affairs Wildfire

Mitigation in Florida ­ Land Use Planning

Strategies and Best Development Practices. Land

use or development plans for which adequate

wildfire mitigat ion cannot be provided shall not be

authorized in severe wildfire hazard areas.

100. The Ordinance itself did not p revent the County from reviewing its

FLUM to ensure that proposed uses do n ot conflict with potential wildfire

areas. In addition, Mr. Cure nton testified that the portion of the Ward

property located north of U.S. Highway 98 is completely clear - cut, except for

a thin buffer of trees approximately ten feet wide separating the Ward

property from Petitioner's parcel . T hus, there was a low level of concern for

wildfires.

101. The Ordinance was not internally inconsistent with FLU Element

Policy 1.2(f).

102. P etitioner challenge d the Ordinance as internally inconsistent with

Capital Improvement E lement Policy 5.2(1), which provides that " [p] roposed

plan amendments and requests for new development or redevelopment shall

be evaluated according to the following guidelines as to whether the proposed

action would contribute to a condition of public hazard as it relates to

sanitary sewer, solid was te, drainage, potable water, natural groundwater

recharge and to the requirements in the Coastal Management Element. "

103. Mr. Curenton testified that the Ordinance would not contribute to a

condition of public hazard because the Ward property is located in the

Eastpoint U SA, which is an area served by central water and sewer, and solid

waste services. In addition, alt hough the County's LDRs were not relevant to

this challenge, Mr. Curenton also testified that the Ward property is of

sufficient size such t hat a future site plan would be able to comply with the

County's requirements concerning setbacks from wetlands and water wells,

as well as the County's impervious surface coverage requirements in the

LDRs.

104. The Ordinance was not internally inconsi stent with Capital

Improvement Element Policy 5.2(1).

105. P etitioner next challenge d the Ordinance as internally inconsistent

with Capital Improvement Element Policy 5.2(2), which provides that

" [p] roposed plan amendments and requests for new development or

redevelopment shall be evaluated according to the following guidelines as to

whether the proposed action would generate public facility demands that may

need to be accommodated by capacity increases. "

106. Mr. Curenton testified that water and sewer services are available

along the northern boundary of the Ward property. The County had received

a letter from the E WSD stating it had capacity for a future commercial

development on the Ward p roperty without the need for capacity increases.

Mr. Curenton f urther testified that the traffic level of service could

accommodate a future commercial development on the Ward property

without the need for capacity increases.

107. The Ordinance was not inte rnally inconsistent with Capital

Improvement Element Policy 5.2(2).

108. P etitioner also challenge d the Ordinance as internally inconsistent

with Capital Improvement Element Policy 5.2(3), which provides that

" [p] roposed plan amendments and requests for new development or

redevelopment shall be evaluated according to the following guidelines as to

whether the proposed action would contribute to an unsuitable use of the

land because of soil conditions or othe r environmental limitations lis ted in

the Future Land Use Element. "

109. Mr. Curenton testified that the Fra nklin County Soil Atlas does not

prohibit commercial development based on the prevalent soil types on the

Ward p roperty , and that the soil types are suitable to support commercial

uses.

110. The Ordinance was not internally inconsistent with Capital

Impro vement Element Policy 5.2(3).

111. P etitioner allege d the Ordinance was i nternally inconsistent with

Capital Improvement Element Policy 5.2(4), which states that " [p] roposed

plan amendments and requests for new development or redevelopment shall

be evaluated according to the following guidelines as to whether the proposed

action would conform with the future land uses as shown on the future land

use map of the Future Land Use Element. "

112. Mr. Curenton testified that the Ordinance c onform ed with th e future

land uses shown on the County's FLUM because the Ward p roperty is at the

intersection of two major highways and is across the street from another

commercial property with C - 2 zoning.

113. The Ordinance was not internally inconsistent with Capital

Improvement Element Policy 5.2(4).

114. P etitioner challenge d the Ordinance as internally inconsistent with

FLU Element Policy 1.6, which provides, in relevant part, that " d evelopment,

alteration of native vegetation, and habitable structures shall be so allowed

in a Development of Regional Impact [ DRl ] . . . "

115. By its terms, FLU Element Policy 1.6 applies only to a DRI. The

Ordinance did not involve a DRI. Also, the Ordinance itself does not

authorize development or any development activity , alteration of native

habitat, or construction of habitable structures.

116. The Ordinance was not internally inconsistent with FLU Element

Policy 1 .6.

117. Petitioner claimed the Ordinance was internally inconsistent with

FLU Element Policy 2.1(a) thr ough (g), which states:

Adopt land development regulations which

implement the adopted Comprehensive Plan and

which as a minimum:

(a) regulate the subdivision of land. Minimum lot

size shall be one acre, with at least 100 feet of road

frontage and 100 fee t in depth, unless the lot is

part of a recorded subdivision approved under

Franklin County Ordinance 89 - 7, the Subdivision

Ordinance, as provided by the Franklin County

Zoning Ordinance (86 - 9).

(b) regulate signage. Signs will be allowed in

commercial di stricts. Temporary non - illuminated

signs smaller than 9 square feet shall be allowed in

any district for a period not to exceed 30 days. Non -

illuminated real estate sale and rental signs

smaller than 12 square feet shall be allowed in any

district as long as the sign is placed on - premises.

(c) regulate areas subject to flooding. The County

shall enact an ordinance which shall regulate

construction in areas subject to seasonal and

periodic flooding. This ordinance, which shall adopt

the Federal Insurance Rate Maps for Franklin

County dated July 18, 1983 promulgated by the

Federal Emergency Management Agency, shall

provide for the enforcement of building regulations

that will make the County eligible to participate in

the Federal Flood Insurance Program.

(d) provide for on site parking and traffic flow.

Industrial and commercial developments must

provide on site parking according to standards

established in the Franklin County Zoning

Ordinance.

(e) Provide for drainage and stormwater

management. All comme rcial and industrial

development shall be required to submit a

stormwater management plan. Subdivisions shall

include adequate provisions for drainage.

(f) provide for adequate open space. In residential

districts there shall be a setback from any public or

private road of 25 feet, and from any other property

line of 10 feet.

(g) Protect potable water wellfields and aquifer

recharge areas. There shall be no underground

storage tanks permitted within 200 feet of public or

private water system water wells .

118. The County's LDRs are not relevant to a plan amendment compliance

determination. Further, nothing in the Ordinance prevented or otherwise

prohibited the County from continuing to enforce any requirements in its

L DRs regulating the areas identified in FLU Element Policy 2.1(a) through

(g).

119. The Ordinance was n ot internally inconsistent with FLU Element

Policy 2. 1 (a) through (g).

120. P etitioner challenge d the Ordinance as internally inconsistent with

Coastal Conservation Element Policy 14.7, which provides that " [t] he County

shall evaluate any proposed zoning changes in the areas vulnerable to

Category 1 and 2 storms on how the change would affect the evacuation

capabili ties of the zone. "

121. The Ordinance is a small scale land use change, not a rezoning. Thus,

Coastal Conservation Element Policy 14.7 did not apply to the Ordinance.

Nonetheless, Mr. Curenton testified that a future commercial development on

the now vaca nt parcel would not have any meaningful impact on evacuation

capabilities because no residential development is allowed in the C - 2

commercial zoning district. Mr. Curenton even opined that if a gas station

were properly permitted and ultimately constructed on the Ward p roperty in

the future, it could enhance evacuation capabilities by providing fuel to aid

the evacuation.

122. The Ordinance was not internally inconsistent with Coastal

Conservation Element Policy 14.7.

123. P etitioner next allege d the Ordi nance was int ernally inconsistent

with Coastal Conservation Element Objective 17, which provides: " Public

Access - The amount of public access to coastal resources shall be maintained

and not decreased. " The Ordinance itself did not authorize any developme nt

activity on the Ward p roperty . Also, Mr. Curenton testified that the Ward

property is p rivate property that does not provide any public access to coastal

resources.

124. The Ordinance was not internally inconsistent with Coastal

Conservation Element Ob jective 17 .

125. N ext, Petitioner challenge d the Ordinance as internally inconsistent

with Coastal Conservation Element Policy 17.1, which reads:

The County shall ensure that existing access for

the public to the County's rivers, bays, beaches, and

estuar ies is maintained by new development. The

County will require new waterfront development to

show on map amendments, development orders and

site plans any existing dedicated waterfront access

ways. The proposed development shall indicate on

map amendments, development orders and site

plans how the existing dedicated water access will

remain open to the public, how it will be relocated

with the County's approval, or that it will be

donated to the County.

126. The Ordinance i tself did not authorize any development activity on

the Ward property , and, thus, did not impact any existing access for the

public to the County's rivers, bays, beaches, or estuaries. In addition, the

evidence established that the Ordinance involve d private property that does

not pr ovide any public access to coastal resources.

127. The Ordinance was n ot internally inconsistent with Coastal

Conservation Element Policy 17.1.

128. P etitioner challenge d the Ordinance as internally inconsistent with

Coastal Conservation Element Policy 2.1, which states that " [t] he County will

cooperate, whenever possible, with the Apalachicola National Estuarine

Research Reserve in its effort to maintain a comprehensive inventory of

ecological communities which shall include species, population, habitat

conditions, occurrences and alterations. "

129. The Ordinance itself did not prohibit or otherwise interfere with the

County's ability to cooperate with the Apalachicola National Estuarine

Research Reserve. The Ordinance was not internally inconsistent wi th

Coastal Conservation Element Policy 2.1.

Summary

130. P etitioner did not prove beyond fair debate that the Ordinance did

not react appropriately to the data and analysis collected and reviewed by the

County.

131. It is fairly debatable that the Ordinance reacts appropriately to the

data and analysis collected and reviewed by the County.

132. Petitioner did not prove beyond fair debate that the Ordinance was

internally inconsistent with specified provisions in the Comprehensive Plan.

133. It is fairly debatable that the Ordinance was internally inconsistent

with specified provisions in the Comprehensive Plan.

C ONCLUSIONS OF L AW

Standing and Scope of Review

134. To have standing to challenge a comprehensive plan amendment, a

person must be an " affected person " as defined in section 163.3184(1)(a). The

provision states:

" Affected person " includes the affected local

government; persons owning property, residing, or

owning or operating a business within the

boundaries of the local government whose plan is the

subject of the review; owners of real property

abutting real property that is the subject of a

proposed change to a future land use map ; and

adjoining local governments that can demonstrate

that the plan or plan amendment will produce

substanti al impacts on the increased need for

publicly funded infrastructure or substantial impacts

on areas designated for protection or special

treatment within their jurisdiction. Each person,

other than an adjoining local government, in

order to qualify under t his definition, shall also

have submitted oral or written comments,

recommendations, or objections to the local

government during the period of time beginning

with the transmittal hearing for the plan or

plan amendment and ending with the adoption

of the p lan or plan amendment.

(Emphasis added).

The record evidence established that Petitioner is an affected person and ha s

standing to challenge the Ordinance.

135. The County's Motion admitted that sections 163.3184(a) and

163.3187(5)(a) do not expressly address what happens if a person is allegedly

no longer the owner of real property abutting real property that is the subject

of a proposed future land use chan ge after the close of the evidence and

before the final decision. Also, the County could point to no case law example

where this issue was raised. Ownership is not the only basis for establishing

that a petitioner is an " affected person. " The other criteri on of submitting

oral or written comments while owning the " abutting real property " can only

happen during the public hearing process . Where the statutory sections are

silent and the criteria were satisfied by the evidence at the final hearing, the

undersi gned does not find any grounds to reopen the record.

13 6 . An affected person challenging a plan amendment must show that

the amendment is not " in compliance " as defined in section 163.3184(1)(b).

" In compliance " means consistent with the requirements of sections 163.3177,

163.3178, 163.3180, 163.3191, 163.3245, and 163.3248.

13 7 . Chapter 163, part II, Florida Statutes, and the case law developed

pursuant thereto, are the applicable law in this proceeding. See Am elia Tree

Conservancy, Inc. v. City of Fernandina Beach, Case No. 19 - 2515GM (Fla.

DOAH Sept. 16, 2019; Fla. DEO Oct. 16, 2019). A hearing on a plan

amendment is a de novo proceeding. Id.

Burden and Standard of Proof

13 8 . As the part y challenging the Ordinance, Petitioner had the burden of

proof.

13 9 . The County's determination that the Ordinance is " in compliance " is

presumed to be correct and must be sustained if the County's determination

of compliance is fairly debatable. See § 163.318 7(5)(a) , Fla . Stat. ; Coastal Dev.

of N. Fla. Inc . , v. City of Jacksonville Beach , 788 So. 2d 204, 210 (Fla. 2001).

1 40 . The term " fairly debatable " is not defined in chapter 163. In Martin

County v. Yusem , 690 So. 2d 1288, 1295 (Fla. 1997), the Florida Supreme

Court explained , " [t]he fairly debatable standard of review is a highly

deferential standard requiring approval of a planning action if reasonable

person s could differ as to its propriety. " The Court further explained, " [a]n

ordinance may be said to be fairly de batable 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. " Id. Put another

way, where " there is evidence in support of both sides of a co mprehensive

plan amendment, it is difficult to determine that the County's decision was

anything but 'fairly debatable.' " Martin Cty. v. Section 28 PÔship, Ltd. , 772 So.

2d 616 , 621 (Fla. 4th DCA 2000).

14 1 . Moreover, " a compliance determination is not a determination of

whether a comprehensive plan amendment is the best approach available to

the local government for achieving its purpose. " Martin Cty. Land Co. v.

Martin Cty. , Case No. 15 - 0300GM at ¶ 149 (Fla. DOAH Sept. 1, 2015; Fla.

DEO Dec. 30, 2015).

14 2 . The standard of proof for findings of fact is a preponderance of the

evidence. See § 120.57(1)(j), Fla. Stat.

Rural Area of Opportunity

14 3 . Petitioner allege d that the Ordinance was not adopted in accordance

with the requirements of section 1 63.3187(3) regarding property located in a

designated rural area of opportunity. The statutory requirements include the

making of ce rtain certifications by the County to the state land planning

agency " that the plan amendment furthers the economic objectiv es set forth

in the executive order issued under s. 288.0656(7) . " An additional statutory

requirement is that " the property subject to the plan amendment shall

undergo public review to ensure that all concurrency requirements and

federal, state, and local environmental permit requirements are met. " The

statutory language does not allow the required " public review " to occur at a

later date than the adoption of the small scale development plan amendment.

14 4 . Executive O rder 15 - 1 33 recognizes that the subje ct rural

communities, which include Franklin County , " are stewards of the vast

majority of FloridaÔs land and natural resources, upon which the StateÔs

continued growth and prosperity depend[.] " The economic ob jectives set forth

in the executive order incl ud e job - creating activities, education, and critical

government services, such as infrastructure, transportation, and safety.

14 5 . The executive order recognizes that the rural area of opportunity

designation is contingent on the execution of a memorandum of agreement

between the state land planning agency, the counties , and municipalities.

The uncontroverted evidence established that a memorandum of agreement

does not exist between the County and the state land planning agency.

14 6 . During the pendency of this proceeding, and after the adoption date

of the Ordinance, the County submitted a written certification to the state

land planning agency on January 23, 2020, as amended on February 3, 2020.

The undisputed evidence established that the Coun ty did not subject the

proposed small scale development plan a mendment " to public review to

ensure that all concurrency requirements and federal, state, and local

environmental permit requirements are met. "

14 7 . The preponderance of the evidence establish ed that because the

contingency of a memorandum of agreement was not accomplished, the rural

area of opportunity designation is without legal effect.

14 8 . Petitioner did not prove beyond fair debate that the County is a

designated rural area of opportunit y and was required to comply with the

requirements of section 163.3187(3).

Relevant and Appropriate Data and Analysis

1 4 9 . Section 163.3177(1) ( f ) r equires that a l l plan a m en dme n ts be " b a s ed

on r e l evant and a p propr i a t e da t a a nd an a na l ysis by the local government. "

§ 163.3177(1) ( f ) 2 ., F l a. S t a t . " T h e st a tute e xpl a ins that to be ba s ed on da t a

' m e a n s to r eact to it in an a p propriate w ay and to t h e extent n e c essa r y

i n dica t ed by t h e data a va i l a ble on that par t i c ular subj e ct at t h e ti m e o f

adoption of the . . . plan amendme n t at i s su e .' " 222 Lakeview LLC v. City of

West Palm Beach, Case Nos. 18 - 4 7 43GM and 18 - 4773GM RO ¶ 8 4 ( F l a .

DOAH D e c. 26, 201 8 ), aff'd per curiam , 295 So.3d 1185 (( F l a. 4th DCA 2020).

1 50 . All data a va i l a ble to the local government a n d in existence at t h e

ti m e o f a dopt i on of t he pl a n a m endment may be pr e s e n t e d. See Zemel v. Lee

Cty. , 1 99 2 WL 880139 (Fla. Dep't of Cmty. Aff. 1993), aff'd s ub. n om. , Zemel

v. Dep ' t of Cmty. Aff . . 642 So. 2d 1367 (Fla. 1st DCA 1994).

1 5 1 . Releva n t a n alyses o f data ne e d not h ave b e en in exist e nce at t h e

time of a doption of a p l an amend m ent. D a ta e x i s ting at the t i me o f adoption

m ay be a na l y z e d through the time o f the administrative he a r i n g.

See 222 Lakeview LLC , R O at ¶ 8 6.

1 5 2 . Da t a suppor t i ng an a m e n d m e n t must be ta k en f r o m pr o f e s s iona l l y

ac c e p ted sourc e s . See § 163.3177 ( 1)( f )2., F la. St a t. H o w e v e r, local go v er n m e nts

are not r e qui r ed to collect origi n al data. Id.

1 5 3 . Ba sed upon the f o regoing F indi n gs of Fac t , P e titione r did not prove

that the data on w h i c h t h e C ounty relied to adopt the Ordinance was not

" ta k en fr om prof e s sionally accep t e d sourc e s and gath e red t hr ough

prof e ss i ona l ly a c cep ted me t h odologies. " Ame l ia Tree C onse r van c y, I n c . ,

RO at ¶ 152.

1 5 4 . The e v i d ence d e m onst r a t ed that there was adequate da t a and

analysis, t a k en fr o m prof e s sionally a cc e p t ed sourc e s, a n d g a t he r ed th r ough

prof e s siona l l y ac c epted me t hodol o gies , to support t h e Ordinance.

1 5 5 . Based upon the f o regoi n g F i n dings of F a c t, Petiti o ne r did not prove

b e y o nd fair deba t e that the Ordinance was not based on re l e v ant a n d

a p propr i a t e data a n d an ana l ysis by the C ounty , as required by s e c t i on

163.3177(1)( f ).

Urban Sprawl

15 6 . Petitioner claimed that the Ordinance failed to discourage the

proliferation of urban sprawl. Petitioner argued that the Ordinance violated

one or more of the 13 primary indicators of urban sprawl in s ection

163.3177(6)(a)9.a.(I) - (XIII) . The 13 primary indicators of urban sprawl are

" evaluated as a whole, not as a 'one strike and you're out ' list, to determine

one aspect of compliance. " Sumter Citizens Against Irresponsible Dev., Inc. v.

Dep't of Cmty. Affairs, Case No. 96 - 5917GM RO ¶ 25 ( Fla. DOAH Feb. 26,

1998 ; Fla. DCA Apr . 3, 1998) ; see also Sierra Club v. Dep't of Cmty. Affairs

and Miami - Dade Cty. , Case No. 03 - 0150GM RO ¶ 126 ( Fla. DOAH June 16,

2006 ; Fla. DCA Sep t . 12, 2006 ) ( recognizing that t riggering a single or a few

primary indicator s is insufficient to support a conclusion that the Plan

Amendment fails to discourage urban sprawl).

15 7 . Consideration of the primary indicators and the evidence at the final

hearing, including the expert testimony of Mr. Curenton , establish ed that the

Ordinance did not encourage the proliferation of urban sprawl. The

Ordinance involved a small scale land use change for than less than eight

acres of land . This did not trigger indicators (I) and (II) , which refer to

" substantial areas of the jurisdiction , " and " significant amounts of urban

development to occur in rural areas. " The Ordinance also did not trigger

indicator (IV) , as the Ordinance did not fail to protect or conserve natural

resources.

15 8 . Likewise, the Ordinance did not trigger indicators ( V ) through (XIII) .

The evidence at the final hearing established that the Ward property is in the

Eastpoint USA, which was specifically created as an area in which to direct

commercial development because it is the only area in unincorporated

Franklin Coun ty where public water and sewer utilities are provided. The

evidence showed that existing public water and sewer lines are located along

the northern boundary of the Ward p roperty with capacity to serve

commercial development. The property i s also located at the intersection of

two major highways and is across the street from another commercial

property at this same intersection with C - 2 zoning. Also, parcels within a

one - mile radius of the p roperty include existing residential uses and

commercially zoned properties and associated commercial activities. Finally,

the Ordinance did not result in the loss of any functional open space. Thus,

by definition, the Ordinance does not constitute " urban sprawl. "

See § 163.3164(52), Fla. Stat.

Interna l Consistency

15 9 . Section 163.3177(2) r e q u i r es t h e sever a l e l ements of the

c o m pr e hensive pl a n to b e consistent. A plan ame n d m e n t c r ea t es an internal

i n c o nsi s tency when it co n flicts with an existing provision of the

c o m pr e he nsive pla n .

1 60 . Int e rnal consiste n cy does not r e qui r e a comprehe n sive plan

a m e ndme n t to fur t her eve r y g oa l, objec t i v e, a n d poli c y in the comp r ehensive

plan. I t is enough if a plan provision is " compatible with, " i . e . , d o es not

c o nfli c t with, o t h e r goals, obj e c t i v e s , and policies in t h e pl a n. I f the compa r ed

provisions d o not conf l i c t, they a r e coor d i n a t ed, rel a ted , a n d consist e nt. See

Melzer, et al. v. M a r tin Ct y ., Case Nos. 02 - 1 0 14GM a nd 02 - 1 0 15GM, RO ¶ ¶

194 - 1 9 5 ( F la. DOAH J u ly 1, 2003; F l a . DCA O c t. 24, 2003).

1 6 1 . Petitioner raised claims regarding zoning classification and rezoning,

which were not cognizable in this type of proceeding . See Horton v. City of

Jacksonville, Case No. 10 - 5965GM , RO ¶ 23 ( Fla. DOAH Jan. 11, 2011 ; Fla.

DCA Feb. 21, 2011 )(recognizing that a plan amen dment compliance

determination does not turn on zoning issues).

1 6 2 . Contrary to another of Petitioner's claims, the Ordinance was not a

development order or development permit. T he Ordinance itself did not

authorize development or any development activities . See Strand v. Escambia

Cty ., Case No. 03 - 2980 GM , RO ¶ 24 (Fla. DOAH Dec. 2 3, 2003 ; Fla. DCA

Jan. 28, 2004) ( " The Plan Amendment, as a future land use designation on the

FLUM is not a development order. The Plan Amendment does not authorize

development on or of the parcel, which includes any wetlands on the parcel. " ) .

1 6 3 . In addition, c onsi s tency of the Ordinance w ith the CountyÔs LDRs was

not an i s sue o f fact or l a w t o be deter m i ned in this proceeding. See Amelia Tree

Conservancy, Inc. v. City of Fernandina Beach, Case No. 19 - 2515GM (Fla.

DOAH Sept. 16, 2019; Fla. DEO Oct. 16, 2019) ; see also Rohan v. City of

Panama City , Case No. 19 - 4486GM (Fla. DOAH Feb. 4, 2020; Fla. DEO

March 5 , 2020).

1 6 4 . Based on the foregoing F indi n gs of Fac t , P e titi o ne r did not prove

bey o nd fa i r deba t e that the Ordinance was i nterna l ly inconsistent with

specified Comprehensive Plan provisions.

Summary

1 6 5 . F or the r e a s ons s t a t ed above, t h e C oun ty's dete r m ina t i o n that the

Ordinance is " i n compliance " is f a i rly de b ata b l e .

1 6 6 . F or the r easons stated a b o ve, Petit i one r did not prove beyond fa i r

deba t e that the Ordinance is not " in c o m pli a nce, " as that term is defined in

section 163.3184(1)(b).

R ECOMMENDATION

Based upon the for e g o i n g F indings of F a ct and Conclusi o ns of L a w, i t is

R ECOMMENDED that the D e p artment of E c o no mic Oppor t uni t y e n t e r a f i nal

order finding Ordinance No. 2019 - 10 adopted on November 19, 2019, " in

complianc e , " as d e fined by section 163.3184(1)(b).

D ONE A ND E NTERED this 5th day of March , 2021, in Tallahassee, Leon

County, Florida.

S

F RANCINE M. F FOLKES

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Fil ing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 5th day of March , 2021.

C OPIES F URNISHED :

Sidney C . Bigham , III , Esquire Daniel W. Hartman, Esquire

Berger Singerman LLP Hartman Law Firm, P.A.

313 North Monroe Street , Suite 301 Post Office Box 10910

Tallahassee, Florida 32301 Tallahassee, Florida 32302

Thomas M . Shuler, Esquire David A. Theriaque, Esquire

The Law Office of Thomas M. Shuler, P.A. Theriaque & Spain

40 4th Street 433 North Magnolia Drive

Apalachicola, Florida 32320 Tallahassee, Florida 32308 - 5083

S. Brent Spain, Esquire Benjamin R. Kelley, Esquire

Theriaque & Spain Theriaque & Spain

433 North Magnolia Drive 433 North Magnolia Drive

Tallahassee, Florida 32308 - 5083 Tallahassee, Florida 32308 - 5083

Janay Lovett, Agency Clerk Tom Thomas , General Counsel

Department of Economic Opportunity Department of Economic Opportunity

107 East Madison Street Caldwell Building, Mail Stop 110

Tallahassee, Florida 32399 - 4128 107 East Madison Street

Tallahassee, Florida 32399 - 4128

Dane Eagle, Executive Director

Department of Economic Opportunity

107 East Madison Street, Mail Stop 110

Tallahassee, Florida 32399 - 4128

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

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.