20-003015GM Jacqueline Rogers, Theresa Blackwell, And William Beech vs. Escambia County, A Political Subdivision Of The State Of Florida Status: Closed Recommended Order on Friday, May 7, 2021.

Summary: Petitioners did not prove beyond fair debate that Escambia County's decision was not in compliance as that term is defined in section 163.3184(1)(b).

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

J ACQUELINE R OGERS , T HERESA

B LACKWELL , A ND W ILLIAM B EECH ,

Petitioners ,

vs. Case No. 20 - 3015GM

E SCAMBIA C OUNTY , A P OLITICAL

S UBDIVISION OF T HE S TATE OF F LORIDA ,

Respondent

and

F RANK E. W ESTMARK A ND E LIZABETH J.

W ESTMARK ,

Intervenors .

/

R ECOMMENDED O RDER

A duly noticed final hearing was held in this case on November 12

and 13 , 2020, and December 10, 2020, before the Hon. Francine M. Ffolkes,

a duly designated Administrative Law Judge with the Division of

Administrative Hearings (DOAH).

A PPEARANCES

For Petitioners: Jacqueline A. Rogers, pro se

Neal Road/Knollwood Neighborhood

1420 Ridge Way

Cantonment, Florida 32533 - 7991

Theresa Blackwell, pro se

9535 Tower Ridge Road

Pensacola, Florida 32526

William Beech, pro se

1956 West Kingsfield Road

Cantonment, Florida 32533

For Respondent: Charles V. Peppler, Esquire

Kia M. Johnson, Esquire

Office of the Escambia County Attorney

221 Palafox Place , Suite 430

Pensacola, Florida 32502 - 5837

For Intervenors: Sally B. Fox, Esquire

Emmanuel, Sheppard & Condon, P.A.

30 South Spring Street

Pensacola, Florida 32502

S TATEMENT OF T HE I SSUES

Whether the Escambia County comprehensive plan amendments

adopted by Or dinance No s . 2020 - 14 , 2020 - 15 , and 2020 - 16 adopted on

June 4, 2020 , are " in compliance, " as that term is used in

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

P RELIMINARY S TATEMENT

On June 4, 2020, Escambia County (County) adopted Ordinance No s .

2020 - 14, 2 020 - 15, 2020 - 16, which amended its Comprehensive Plan (Comp

Plan) by allowing four parcels to withdraw from the County 's Mid - West

Optional Sector Plan (OSP) . The County also assigned each parcel with a

new Mixed - Use Suburban (MU - S) future land use (FLU) designation.

On July 6, 2020, Petitioners , Jacqueline Rogers, Theresa Blackwell, and

William Beech (Petitioners) filed their challenge to the Ordinances with

DOAH. On July 17, 2020, Intervenors filed their motion to intervene as full

parties, which was granted on the same day. The parties filed their Joint

Pr e - Hearing Stipulation on November 9, 2020.

At the hearing, Petitioners presented the testimony of ten witnesses,

including themselves. Ann Paul was accepted as an expert in the areas of

waterbird populations and management of coastal habitats for wildlife.

Christian Wagley was accepted as an expert in the areas of watershed

science and urban planning. Barbara Albrecht (Albrecht) was accepted as

an expert in the areas of marine biology, aquatic ecology, environmental

diagnostics , and bioremediation . Juan Lemos (Lemos) and Allyson Lindsay

(Lindsay) are employees of the County and experts in the field of planning,

zoning, and growth management in accordance with the County Land

Development Code (LDC) , the Comp Plan , and the OSP. T erri Malone

(Malone) , AICP , is the County ' s t ransportation p lanner . Ms. Malone holds

a master ' s degree in urban and regional planning and has 30 years of

experience in the field of urban and regional planning . Horace Jones

(Jones) was presented as a fact witness, Mr. Jones is the Dev elopment

Services Director of the County 's Development Services Department.

Petitioners ' Exhibits 1 through 14, 16 through 19 , 26, 27, 29 through 44, 46

through 49, 52, 54, 59 through 61, 63 through 67, 68, 69, 72 , and 73 were

accepted into evidence.

The County presented the testimony of three expert witnesses on cross -

examination following the Petitioners ' direct examination : Mr. Lemos,

Ms. Lindsay, and Ms. Malone. Kenneth Metcalf (Metcalf) , AICP , with a

masterÔs degree in urban and regional planning and 35 years ' experience,

was accepted as an expert in the areas of sector planning, urban and

regional planning, growth management, administration and implementation

of c hapter 163 , assessment of deve lopment impacts, environmental

planning , and transportation planning. Mr. Metcalf was a joint expert

witness for the County and Intervenors. The County ' s Exhibits 1 through 30

were accepted into evidence. Intervenors presented the testimony of one

expert w itness , Mr. Metcalf . Intervenors ' Exhibits 1 through 19 were

accepted into evidence.

A three - volume Transcript of the proceeding was filed on February 8,

2021. The p arties timely filed their proposed recommended orders on

April 9, 2021, which have been carefully considered in the preparation of

this Recommended Order.

References to the Florida Statutes are to the 2020 version unless

otherwise stated.

F INDINGS OF F ACT

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

parties and the evidence adduced at the final hearing.

Parties

1. Petitioners are " affected persons " as defined in section 163.3184(1)(a)

who own property in the County and timely submitted comments or

objections to the County with regard to the subject plan amendments.

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

S tate of Florida. The County 's principal offices are located at 221 Palafox

Place, Pensacola, Florida 32502. The County is a local government that is

subject to the requirements of chapter 163.

3. I ntervenors are the owners of property located at 2025 West Kingsfield

Road, Cantonment, Florida 32533 . The Westmark Property was the subject

of Ordinance No. 2020 - 14.

4. The instant administrative proceeding was a challe nge to all three

O rdinances adopted by the County on June 4, 2020. The Arnold Property

was the subject of Ordinance No. 2020 - 15 . The Jolly Property was the

subject of Ordinance No. 2020 - 16 .

Background

5. A sector plan is the process in which the local government engages in

long - term planning for an area of at least 5,000 acres. See §§ 163.3164(42)

and 163.3245(1), Fla. Stat. It involves two levels of planning: a) a long - term

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

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

1,000 acres and identifies the distribution, extent, and location of future

uses and public facilities. See § 163.3245(3), Fla. Stat. While the DSAP is

created by a local development order that is not subject to state compliance

review, an amendment to an adopted sector plan is a plan amendment

reviewed under the s tate c oordinated r eview process. See § 163.3184(2)(c),

Fla. Stat.

6. The County 's OSP was one of five original sector plans adopted as part

of a pilot program in the S tate of Florida. The County ' s OSP is unique from

the other sector plans throughout the state because of its large number of

property owners. T he other four pilot sector plans contain one or two owners

of large parcels. Those one or two property owners specifically requested to

have a sector plan. In the County there are 1,792 parcels located in the OSP .

7 . On June 3, 2010, the County adopted its Comp Plan and the Mid - West

OSP through Ordinance No. 2010 - 16. Ordinance No. 2010 - 16 was challenged

by the state land planning agency, the former Departmen t of Community

Affairs (DCA) . Ordinance No. 2011 - 3 was adopted by the C ounty as a

stipulated remedial ordinance in response to the DCA challenge. Ordinance

No. 2011 - 3 was determined to be in compliance with part II of c hapter 163.

The time for a challenge to Ordinance 2011 - 3 has expired.

8 . Th e OSP DSAP was adopted by C ounty Ordinance No. 2011 - 29 in

September 2011 , and the DSAPs attached to the ordinance were adopted as

well. Ordinance No. 2011 - 29 established two DSAPs: Muscogee DSAP and

Jacks Branch DSAP. The time for a challenge to Ordinance 2011 - 29 has

expired.

9 . Chapter 7 of the County's Comp Plan contains the FLU Element that

established future land use patterns as described by the FLU Element's

goals, objectives, and policies. The policies include FLU categories with

general descriptions of allowable uses and d evelopment standards. FLU

Element categories include Agricultural, Rural Community, and MU - S.

10 . Chapter 16 of the County's Comp Plan contains the OSP overlay that

established a long - term master plan for buildout of the area covered by the

OSP . The OSP s ets forth FLU goal s , objectives, and policies that generally

describe types of land uses, regionally significant public facilities, and

regionally significant natural resources. The policies include FLU categories

related to the OSP area general principles that contain general descriptions

of allowable uses and development standards. OSP FLU categories include

Town Center, Village Center, Traditional/Urban Neighborhood, and

Conservation Neighborhood. Until a DSAP is adopted, the property within

the OSP main tains the underlying FLU Element designation.

1 1 . The right to opt - out or withdraw from the long - term master plan

with local government approval was created by the Florida Legislature

when section 163.3245 was amended during the 2011 legislative session. See

§ 163.3245(8), Fla. Stat. This can be accomplished only with the approval of

the local government by plan amendment adopted and subjected to state

compliance review under section 1 63.3184. Id.

1 2 . On April 16, 2015, the County repealed and replaced it s entire L DC

and instituted a county - wide rezoning to accomplish a consolidation of

zoning districts by Ordinance No. 2015 - 12.

1 3 . On March 16, 2017, the County amended its LDC through Ordinance

No. 2017 - 14, establishing criteria for evaluation of any request by a property

owner wishing to opt - out of the Mid - West OSP . Ordinance No. 2017 - 14 was

not challenged.

1 4 . Once a parcel is removed from the County's OSP , the underlying

County zoning becomes effective, but a new FLU category must be assigned

to the property by a plan amendment.

1 5 . Ordinance No s . 2020 - 14, 2020 - 15, and 2020 - 16 were considered

favorably by the County Planning Board on March 3, 2020. The three

Ordinances were considered and approved by the County Commission on

March 5, 2020 , and June 4, 2020.

1 6 . Notice of all public hearings was published in a newspaper of general

circulation. The comprehensive plan amendments at issue were made

available to the public. Members of the public could speak at the public

hearings.

The Subject Properties

1 7. The subject properties are located on the southeastern perimeter

boundary of the Mid - West OSP , within the Muscogee DSAP. The current

underlying zoning for each parcel is Low Density Residential (LDR), with a

maximum residential development a llowance of four dwelling units per acre

( du/ac ) . The existing land use derived from the DSAP Final Land Use Plan

identifies that the parcels are within the Conservation Neighborhood

District, with a maximum residential development allowance of three du/ac .

1 8 . In the County there are 1,792 parcels located in the Mid - West OSP .

The County's staff calculated that the total developable acreage in the entire

Mid - West OSP is 8,611.80 acres. The total developable acreage of the

Muscogee DSAP in the Conservation N eighborhood District is 1,289.90 acres.

1 9 . The Westmark P roperty has a single - family residence on site and the

approximate acreage for the parcel is 84.10 / - acres. The parcel's 84.10 / -

acres represents 0.97% of the existing developable acreage in the Mid - West

OSP . Removal of this acreage would result in a decrease of 6.52% of

available developable acres in the Muscogee DSAP in the Conservation

Neighborhood District.

20 . Petitioners contend that the Conservation Neighborhoods were

selected for that designation because they are environmentally sensitive

lowlands prone to flooding. However, an analysis of the Final Land Use Map

in the DSAP reveals that the Conservation Neighborhoods are mostly high

and dry like the Westmark P roperty.

2 1 . The most environmentally sensitive lands with substantial wetlands

and lowlands are found in and around Town Centers and Regional

Employment Districts . Town Centers and Regional Employment Districts

have the highest density and intensity uses in the Mid - West OSP . These and

other high - density uses are exempt from the open space set asides imposed

on properties in the Conservation Neighborhoods.

2 2 . Respondents' expert, Mr. Metcalf , testified that there was a one

percent c hance of a flood occurring on small pockets o f the Westmark

P roperty . This was determined using the Federal Emergency Management

Agency (FEMA) flood zones that are incorporated in the County ' s

regulations. In addition, the County's regulations allow for corrective

measures such as mitigation and fill , so the flood zone areas would not

preclude development of any affected property.

2 3 . The Arnold P roperty has a single - family residence on site and the

approximate acreage of the parcel is 4.04 - acres. The parcel's 4.04 / - acres

represents 0.04% of the existing developable acreag e in the Mid - West OSP .

Removal of th is 4.04 - acres w ould result in a decrease of 0.31% in available

developable acres in the Muscogee DSAP under the Conservation

Neighborhood District.

2 4 . T he Jolly P roperty has two single - family residences on site and is

comprised of two adjacent parcels having a total approximate acreage of

5.99 / - acres. The parcels ' 5.99 / - acres represents 0.07% of the existing

developable acreage in the Mid - West OS P. Removal of the se 5.99 - acres w ould

result in a decrease of 0.46% of available developable acres in the Muscogee

DSAP under the Conservation Neighborhood District.

Application Review

2 5 . In 2015, when the County received its first request to opt out of the

Mid - West OSP , County staff contacted the state land planning agency, the

current Department of Economic Opportunity ( DEO ) , for advice on how to

process such a request. DEO informed County staff that there was no prior

data that they could provide to the County . T here was no sample application

or process that any other jurisdiction had created because the County was

the first jurisdiction to process an opt - out request.

2 6 . Because th is was only the second time opt - out applications had been

filed with the County, the County relied upon a series of meetings previously

held with DEO for the purpose of seeking guidance on how to proceed. The

County was instructed by DEO that the opt - out application and FLU

assignment should be processed in the same manner as a FLU map (FL UM)

comprehensive plan amendment and then reviewed under the s tate

c oordinated r eview pr ocess. DEO had also suggested criteria that should be

considered when processing such an application. Those criteria were adopted

as LDC section 2 - 7.4.

2 7 . After the th ree opt - out applications were filed, the County began the

process of determining whether the applications satisfied the opt - ou t criteria

in LDC section 2 - 7.4 and the relevant Comp Plan requirements. At the

hearing, it became clear that some of the criteria adopted by LDC section 2 -

7.4 were above and beyond the state compliance review necessary for plan

amendments under section 163.3184. Petitioners assert ed that the LDC

criteria and a strict scrutiny standard should govern review of the opt - out

app lications in this proceeding. However, that approach would be contrary to

the state compliance review set forth in section 163.3184, including the fairly

debatable standard mandated by section 163.3184(5)(c).

2 8 . At the hearing, Mr. Metcalf testified th at he prepared a 15 - page

expert written report based on information a professional planner would

consider reliable. The report is titled " Westmark Comprehensive Plan

Amendment Compliance Evaluation " and was accepted into evidence .

Mr. Metcal f's expert testimony and report , along with the County's staff

report , were the most credible evidence presented at the hearing to support

the Westmark Property opt - out application .

2 9 . As more fully discussed below, t he preponderance of the evidence

establi shed that the Westmark Property , Arnold Property, and Jolly

Property opt - out application me t all applicable statutory requirements for

approval of the FLUM change from Conservation Neighborhood to MU - S.

30 . T he requested opt - outs were debated extensively during a series of

public hearings that began in March 2020. Members of the public were

allowed to speak for or against the proposed opt outs. On June 4, 2020, the

County voted to amend its Comp Plan by : (a) allowing the parcels to

withdraw from the Mid - W est OSP ; (b) removing the Mid - West OSP overlay

on the parcels ; and (c) amending the FLUM by assigning the properties the

MU - S FLU designation.

3 1 . The Ordinances wer e transmitted to DEO for review under the s tat e

coo rdinated r eview p rocess. DEO determined that each Ordinance met the

requirements of chapter 163, for compliance purposes.

3 2 . Besides DEO ' s review, the Department of Transportation (DOT) and

the Department of Education reviewed the Ordinances for impacts on

transportation and school concurrency, respectively. The Florida Fish and

Wildlife Conservation Commission also reviewed the Ordinances. No

comments, recommendations , or objections were sent to the County by any

of these reviewing agenc ies.

Internal Consistency

3 3 . Whe n the effect of a plan amendment create s clear conflict with other

provisions of the existing Comp Plan, the plan amendment is said to create

internal inconsistencies within the Comp Plan in contravention of

section 163.3177(2).

3 4 . Petitioners argued that t he opt - out applications are internally

inconsistent with the policies in Chapter 16 of the Comp Plan. Petitioners'

convoluted argument cannot be accepted because the sector plan statute

allows property owners to withdraw their parcels from the OSP area. Th us,

those parcels would no longer be subject to the policies of Chapter 16 of the

Comp Plan.

3 5 . Mr. Metcalf's opinion was that an internal inconsistency could occur

only if the plan amendment is so disruptive that it completely undermine d

the County's ability to implement the OSP in a manner consistent with the

Comp Plan policies . Petitioners failed to demonstrate any internal

inconsistencies that would completely undermine the County's ability to

implement the OSP .

3 6 . Because of its limited scope, Mr. Metcalf persuasively testified that

wi thdrawing the three properties from the OSP area would not prevent the

County and the OSP from carrying out its objectives and remaining

internally consistent with all of its policies.

3 7 . In addition, the three opt - outs did not create remnant areas or

fragment the DSAP. A "remnant" or "fragment" would result when removal

of a parcel leaves behind one or more OSP parcels that d id not have any

connectivity or access to the remainder of the OSP parcels within the DS AP.

3 8 . The MU - S FLU category is compatible with adjacent , existing , and

planned FLU . As shown by the maps included with the opt - out applications '

a mendment packages, many MU - S neighborhoods abut properties

designated as Conservation Neighborhood within th e OSP area. Many of

these MU - S neighborhoods are also zoned L DR. Thus, the three opt - out plan

amendments are comparable to the existing land use and zoning pattern in

the area.

3 9 . The County's experts testified that when no specific development

project was proposed for the three properties, all elements of the Comp Plan

were reviewed for consistency with the proposed FLU category of MU - S.

That review included elements such as infrastructure, mobility , and

conservation . The MU - S designation for the three opt - out properties was

consistent with all applicable elements of the Comp Plan.

40 . Petitioners did not prove beyond fair debate that the three opt - out

plan amendments were internally inconsistent or would create conflict

within the County's Comp Plan.

4 1 . It is fairly debatable that the three opt - out plan amendments were

internally inconsistent with relevant provisions in the Comp Plan.

Relevant and Appropriate Data and Analysis

4 2 . "To be based on data means to react to it in an appropriate way and

to th e 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. Data supporting an amendment must be taken

from professionally accepted sources. See § 163.3177(1)(f)2., Fla. Stat.

However, local governments are not required to collect original data. Id.

4 3 . Surveys, studies, and data regarding the area form the bas e s for

FLU plan amendments. See § 163.3177(6)(a)2. , Fla. Stat.

4 4 . During the application process for each of the opt - out applications,

the County staff reviewed the extensive data that was collected and used to

support adoption of the Mid - West OSP and the DSAPs. The data reviewed

and analyzed by the County staff addresse d natural resources, wetlands,

historically significant sites, and impacts to the environment . The data also

addressed the availability of potable water, sanitary sewer, and all other

public facilities. Specifically, County staff confirm ed the location of the

parcel s and determine d who the providers would be in order to analyze the

specific level of service standards applicable to the parcels.

4 5 . The County's experts testified that since no specific development

project s were proposed for the three properties, it was reasonable to analyze

the impacts of the FLUM change to MU - S within the constraints of the

maximum standards for the underlying LDR zoning.

4 6 . Although Mr. Metcalf's independent analysis and opinion was based

on reviewing the maximum s tandards for the MU - S FLU category, he

agreed that the County's approach was sensible and realistic in th e context

of these three op t - out applications. His analysis d emonstrate d that there

would be sufficient infrastructure and service capacity available e ither way .

4 7 . The evidence demonstrated that there was adequate data and

analysis taken from professionally accepted sources, and gathered through

professionally accepted methodologies , to support the three opt - out plan

amendments.

4 8 . Petitioner s did not prove beyond fair debate that the three opt - out

plan amendments were not based on relevant and appropriate data and an

analysis by the County, as required by section s 163.3177(1)(f) and

163.3177(6)(a)2.

FLUM Amendment Analysis

4 9 . Specific analyse s are relevant for th ese FLUM amendment s .

See § 163.3177(6)(a)8., Fla. Stat.

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

50 . The Westmark Property, Arnold Property, and Jolly Property are

currently dependent upon on - site septic systems like other surrounding

pro perties in the neighborhood. Septic systems are limited to a maximum of

four du/ac per acre by state health department regulation. At present, this

would comport with the four du/ac maximum density allowed by LDR

zoning .

5 1 . Emerald Coast Utilities Authority ( E CUA ) operates a 12 - inch force

main sewer line at the intersection of Highway 97 and West Kingsfield

Road, three quarters of a mile from the Westmark P roperty. Mr. Metcalf

evaluated the permitted capacity fo r ECUA ' s interconnected wastewater

treatment facilities and concluded there would be sufficient capacity

available to service the Westmark P roperty if developed to the FLU MU - S

maximum density of 25 du/ac .

5 2 . With regard to potable water, the subject properties are located in the

Farm Hill Utilities, Inc. (FHU) , service area, which has a 20 - year

c onsumptive u se p ermit (CUP) , valid through 2033 . Notably, the CUP

application was based on the Bureau of Economic and Business Research

high population projec tion series for this area.

5 3 . The CUP authorizes an average daily withdrawal of 0. 68 million

gallons per day (MGD) for three active wells. The 2019 average daily

withdrawal for the three wells total ed 0. 49 MGD as reported in the 2019

a nnual r eport submitted to the Northwest Florida Water Management

District (NWFWMD). The NWFWMD 2018 Water Assessment Report

forecasts demand through 2030 of 0. 618 MGD. The largest of the subject

properties, the 84.10 / - acre Westmark P roperty, would generate a d emand

for 0. 078 MGD at the maximum zoning density based on the adopted level - of -

service standard set forth in Infrastructure ( INF ) Policy 4.1.7 of the Comp

Plan. As such, sufficient capacity is currently available and is projected to be

available through 2030 to serve even the 84.10 / - acre property if developed

based on the zoning density .

5 4 . Mr. Metcalf concluded that if F HU was unable to provide MU - S FLU

category maximum density service, ECUA could and would provide the

service. The ECUA service area is adjacent to FHU's service area. ECUA c ould

simply extend to the west to service the Westmark P roperty in a maximum

density development scenario. ECUA operates as an enterprise fund, meaning

it would charge users as it expand s the system. So, to the extent that the

current or any future owner of the Westmark Property wanted to develop to

25 du/ac, they would be required to pay for that expansion.

5 5 . The County has no public stormwater treatment facilities in the area

to serve the subject p roperties. Stormwater retention and treatment would be

accomplished by a required on - site system capable of handling the maximum

25 du/ac or mixed - use development scenarios as well as the LDR zoning

scenario. The opt - out plan amendments would not affect st ormwater

management.

5 6 . To the extent stormwater ultimately discharges to an Outstanding

Florida Water such as the Perdido River, higher levels of stormwater

management are required, and additional measures would protect sensitive

wetlands .

5 7 . With respect to solid waste disposal, the Perdido Landfill is used to

accommodate the municipal solid waste disposal needs of the County. The

County ' s six pounds per capita per day level of service standard is based on

population projections for calculatin g demand, which has already been

established by the County independent of the Comp Plan. I f future

development project s were to be proposed for the three subject properties , the

current buildout for the Perdido Landfill has solid waste disposal capacity

un til the year 2045.

5 8 . The County does not require a recreational level of service standard.

The County has made a policy decision not to implement concurrency

requirements for recreation.

5 9 . Petitioners argued that the open space requirement of 50% under the

Conservation Neighborhood land use is an important level of protection that

would be lost if the subject properties are allowed to withdraw from the OSP.

The Conservation Neighborhood o p en space requirement s do not include any

direction as to where the open space must be located and preserved on a site.

60 . P ermitted uses of the open space allowed by s ection 3.03 of the DSAP

include recreation that allows accessory buildings and improveme nts such as

golf courses, tennis and basketball courts, athletic fields, clubhouses with

swimming pools , and other such improved recreational facilities, plus up to

one - half of the open space can be used for enhanced stormwater retention

ponds, provided th ey are designated as subdivision amenities.

6 1 . Mr. Metcalf determined that the allowable uses of open space in the

OSP Conservation Neighborhood designation generally comport with the

open space uses as defined in Chapter 3 of the Comp Plan. The Petitione rs'

own expert, Mr. Albrecht , did not dispute that the Recreation and Open

Space Element contained in Chapter 13 of the Comp Plan applies to private

developments and would be applicable to these properties if they are allowed

to withdraw from the OSP.

6 2 . Although the County has not adopted school concurrency , or school

impact fees, Mr. Metcalf testified that a reasonable estimate for long - term

planning purposes may be derived from existing census and school

enrollment data. Mr. Metcalf estimated the potent ial number of elementary,

middle, and high school students if the Westmark Property was developed at

the maximum density with mid - story, multifamily units. He also conducted

an estimate using the same methodology if it was developed at the maximum

zoning d ensity.

6 3 . The s chool d istrict budgets for growth and capital over five and ten -

year periods utilizing its own data and analysis including enrollment growth

of individual schools that fluctuate partly because the County has freedom of

choice for enrollments. In Mr. Metcal f's expert opinion, the County s chool

d istrict 's 2019 - 2020 Five Year Work Program confirm ed that sufficient

capacity was available within the school district to serve the Westmark

Property, whether developed at the maximum zoning density or the

maximum MU - S FLU density.

6 4 . Notwithstanding the fact that school concurrency has been removed

from both the state statute and the County ' s Comp Plan, Mr. Jones testified

that the County reviews what public schools are in the vicinity of a proposed

project to determine if the re is capacity or if the school board needs to be

advised regarding further development of the public school system.

6 5 . The County's expert, M s. Lindsay , confirmed that granting these

opt - out requests would have no immediate impact on public school facilities.

She also testified that the County would rev iew potential impacts on public

school facilities during any site plan review of a proposed project.

6 6 . Despite the fact that the County has no level of service stan dard or

concurrency for transportation, Mr. Metcalf explained that the statutory

FLUM amendment evaluation requires an analysis and a demonstration of

adequate planning to coordinate land use and transportation. However, there

was no binding development st andard that ha d to be achieved in order to

demonstrate availability of adequate capacity.

6 7 . Notwithstanding the fact that transportation concurrency has been

removed from both the state statute and the County ' s Comp Plan, the County

would be reviewing the traffic capacity and the ability of the roads adjoining

any proposed project to handle any new traffic generated by the project. The

County's transportation expert, Ms. Malone, confirmed that such a review

would entail a trip generation study to determ ine the potential for an

increase in number of trips and number of pedestrians. The review would

also entail an analysis of whether an intersection or turn lane would be

necessary for any proposed development.

6 8 . The County has an active project to realig n and extend West

Kingsfield Road from Highway 97 west to the first 90 - degree curve, as well as

construct a new two - lane roadway further west to connect to the eventual

Beulah Interchange Connector Project. The County is currently nearing 60%

design and is in the right - of - way phase. The construction phase will follow

the design and right - of - way phases once the necessary funding has been

identified. The new extension roadway will run east to west through the

Westmark P roperty.

6 9 . During her review of the opt - out proposals, Ms. Malone determined

that this portion of West Kingsfield Road is functioning within its allowable

capacity. Ms. Malone found no reason to believe that approving these

opt - outs would have any immediate impact on the capacity of the existing

transportation infrastructure .

70 . Mr. Metcalf conducted a worst - case scenario analysis of the impact on

West Kingsfield Road by assuming a maximum development potential for the

Westmark Property. He analyzed three different development scenarios . One

development scenario was based on the maximum density at 25 du/ac allowed

by the MU - S FLU category. The second development scenario was based on

the trip generation resulting from the MU - S density if the property was

developed for either residential or commercial purposes. The third

development scenario was based on the trip generation resulting from the

LDR zoning at four du/ac.

71 . For each of the three scenarios, Mr. Metcalf compared the amount of

daily trip generation to the capacity of West Kingsfield Road as it has been

planned, and then he calculated the resulting level of service. He confirmed

that West Kingsfield Road would operate at an acceptable level of service in

all scenarios.

7 2 . Petitioners did not prove beyond fair debate that th e three opt - out

FLUM plan amendments were not based on an analysis of the availability of

facilities and services, as required under section 1 63.3177(6)(a) 8.

The character of undeveloped land.

7 3 . The County considered the suitability of the proposed FLU MU - S

category in light of the existing character of the three opt - out properties

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

resources.

7 4 . The County staff reviewed the extensive data that was collected and

used to support adoption of the Mid - West OSP and the DSAPs. The data

reviewed and analyzed by the County staff addressed natural resources,

wetlands, historically significant sites, and impacts to the environment.

7 5 . There was no dispute that relevant elements of the Comp Plan would

continue to apply to these three properties if they are withdrawn from the

OSP. Those elements include the Conservation Element that contains policies

addressing wetland protection, wildlife habitat protection , and protection of

listed species . Also, the Recreation and Open Space Element contained in

Chapter 13 of the Comp Plan applies to private developments and would be

applicable to these properties if they are withdraw n from the OSP.

7 6 . There was no disput e that allowing these properties to withdraw from

the OSP would have no immediate impact on the wildlife, ecology , or biology

of the Co unty.

77 . Petitioners contend ed that the Conservation Neighborhoods were

selected for that designation because they are environmentally sensitive

lowlands prone to flooding. However, an analysis of the Final Land Use Map

in the Muscogee DSAP reveal ed that the Conservation Neighborhoods are

mostly high and dry, like the Westmark Property.

7 8 . Th e most environmentally sensitive lands with substantial wetlands

and lowlands are found in and around Town Centers and Regional

Employment Districts. Town Centers and Regional Employment Districts

have the highest density and intensity uses in the Mid - West OSP. These and

other high - density uses are exempt from the open space set asides imposed

on properties in the Conservation Neighborhoods.

7 9 . Petitioners did not prove beyond fair debate that the proposed FLU

MU - S category was not suitable in light of the existing character of the three

opt - out properties including the soils, the topography, the natural resources,

and the historic resources.

Meaningful and Predictable Standards

80 . Section 163.3177(1) provides that a comprehensive plan " shall

establish meaningful and predictable standards for the use and development

of land and provide meaningful guidelines for the content of more detailed

land development and use regulations . "

8 1 . Petitioners argued that the opt - out plan amendments are inconsistent

with section 1 63.3177(1) because they fail to establish meaningful and

predictable standards for removal of property from the DSAP and renders the

OSP meaningless .

8 2 . The more persuasive evidence established that withdrawing the three

properties from the OSP area would not prevent the County and the OSP

from carrying out its objectives and remaining internally consistent with all

of its policies. In addition, the three opt - outs did not create remnant areas or

fragment the DSAP.

8 3 . The County's experts t estified that all elements of the Comp Plan were

reviewed for consistency with the proposed FLU category of MU - S. That

review included elements such as infrastructure, mobility, and conservation.

The MU - S designation for the three opt - out properties was co nsistent with all

applicable elements of the Comp Plan.

8 4 . Petitioners did not prove beyond fair debate that the three opt - out

plan amendments rendered the OSP meaningless and the Comp Plan lacking

meaningful and predictable standards for the use and deve lopment of land.

8 5 . It is fairly debatable that the three opt - out plan amendments fail to

establish meaningful and predictable standards for the use and development

of land .

C ONCLUSIONS OF L AW

Standing and Scope of Review

86 . 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

record evidence established that Petitioners are affected persons and had

standing to challenge the Ordinances.

8 7 . 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.

8 8 . C hapter 163, part II, and the case law developed pursuant thereto, are

the applicable law 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). A hearing on a plan amendment is a de novo

proceeding. Id.

8 9 . Section 163.3245(3) provides as follows with respect to sector

planning:

Sector planning encompasses two levels: adoption

pursuant to s. 163.3184 of a long - term master plan

for the entire planning area as part of the

comprehensive plan, and adoption by local

development order of two or more detailed specific

area plans that implement the long - term master

plan and within which s. 380.06 is waived.

90 . Section 163.3245(8) provides as follows with respect to withdrawal of

parcels from a sector plan:

Any owner of property within the planning area of

a proposed long - term master plan may withdraw

his or her consent to the master plan at any time

prior to local government adoption, and the local

government shall e xclude such parcels from the

adopted master plan. Thereafter, the long - term

master plan, any detailed specific area plan, and

the exemption from development - of - regional - impact

review under this section do not apply to the

subject parcels. After adoption of a long - term

master plan, an owner may withdraw his or her

property from the master plan only with the

approval of the local government by plan

amendment adopted and reviewed pursuant to s.

163.3184. (Emphasis added).

9 1 . Moreover, plan amendments that pr opose an amendment to an

adopted s ector p lan are statutorily mandated to follow the state coordinated

review process set forth in section 163.3184(4) . See § 163.3184(2)(c), Fla. Stat.

These statutory requirements are clear and unambiguous.

9 2 . Contrary to the plain language of the controlling statutes , Petitioners

argued that the OSP and DSAP development standards should remain on the

subject properties unless the DSAP is amended through a quasi - judicial

p rocess. This argument is illogical . I f t he subject properties are not allowed to

withdraw completely from the OSP and the DSAP by a FLUM plan

amendment in compliance with section 163.3184, then section 1 63.3245(8) is

rendered meaningless.

9 3 . In addition, the language of section 163.3245(8) make s clear that with

respect to parcels excluded from the OSP, " the long - term master plan, any

detailed specific area plan, and the exemption from development - of - regional -

impact review under this section do not apply to the subject parcels. " See §

163.3 245(8) , Fla. Stat.

Burden and Standard of Proof

9 4 . As the part ies challenging the Ordinance s , Petitioner s have the

burden of proof.

9 5 . The County's determination that the Ordinance s are "in compliance" is

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

of compliance are fairly debatable. See § 163.31 84 (5)( c ), Fla. Stat.; Coastal

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

2001).

9 6 . 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

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

ordinance may be said to be fairly debatable when for any reason it is open to

dispute or controversy on grounds that make sense or point to a logical

deduction that in no way involves its constitutional vali dity." Id . Put another

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

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.

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

9 7 . 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).

9 8 . The standard of proof for findings of fact is a preponderance of the

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

Internal Consistency

9 9 . Section 163.3177(2) requires the several elements of the

comprehensive plan to be consistent. A plan amendment creates an internal

inconsistency when it conflicts with an existing provision of the

comprehensive plan.

100 . Internal consistency does not requ ire a comprehensive plan

amendment to further every goal, objective, and policy in the comprehensive

plan. It is enough if a plan provision is "compatible with," i.e., does not

conflict with other goals, objectives, and policies in the plan. If the compar ed

provisions do not conflict, they are coordinated, related, and consistent. See

Melzer, et al. v. Martin Cty. , Case Nos. 02 - 1014GM and 02 - 1015GM, RO ¶¶

194 - 195 (Fla. DOAH July 1, 2003; Fla. DCA Oct. 24, 2003).

10 1 . Petitioner s raised claims regarding pot ential r ezoning, 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 amendment compliance determination does not

tur n on zoning issues).

10 2 . T he Ordinance s are not d evelopment order s or development permit s.

The Ordinance s did not authorize development or any development activities.

See Strand v. Escambia Cty. , Case No. 03 - 2980GM, RO ¶ 24 (Fla. DOAH Dec.

23, 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.").

10 3 . In addition, consiste ncy of the Ordinance s with the County ' s LDRs

was not an issue of fact or law to be determined 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 Mar . 5, 2020).

10 4 . Based on the foregoing Findings of Fact, Petitioner s did not prove

beyond fair debate that the Ordinance s were internally inconsistent with the

County's Comp Plan .

Relevant and Appropriate Data and Analysis

10 5 . Section 163.3177(1)(f) requires that all plan amendments be "based

on relevant and appropriate data and an analysis by the local government."

§ 163.3177(1)(f)2., Fla. Stat. "The statute explains that 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 amendme nt at issue.'" 222 Lakeview LLC v. City of

West Palm Beach , Case Nos. 18 - 4743GM and 18 - 4773GM , RO ¶ 84 (Fla.

DOAH Dec. 26, 2018), aff'd per curiam , 295 So.3d 1185 (Fla. 4th DCA 2020).

10 6 . All data available to the local government and in existence at the

time of adoption of the plan amendment may be presented. See Zemel v. Lee

Cty. , Case No. 90 - 7793GM, (Fla. DOAH Dec. 16, 1992; Fla. Dep't of Cmty. Aff.

1993), aff'd sub. nom., Zemel v. Dep't of Cmty. Aff. , 642 So. 2d 1367 (Fla. 1st

DCA 1994).

10 7 . R elevant analyses of data need not have been in existence at the time

of adoption of a plan amendment. Data existing at the time of adoption may

be analyzed through the time of the administrative hearing. See 222

Lakeview LLC, RO at ¶ 86.

10 8 . Data supporti ng an amendment must be taken from professionally

accepted sources. See § 163.3177(1)(f)2., Fla. Stat. However, local

governments are not required to collect original data. Id .

1 0 9 . Based upon the foregoing Findings of Fact, Petitioner s did not prove

that the data on which the County relied to adopt the Ordinance s was not

"taken from professionally accepted sources and gathered through

professionally accepted methodologies." Amelia Tree Conservancy, Inc., RO at

¶ 152.

1 10 . The evidence demonstrated that the re was adequate data and

analysis, taken from professionally accepted sources, and gathered through

professionally accepted methodologies, to support the Ordinance s .

1 1 1 . Based upon the foregoing Findings of Fact, Petitioner s did not prove

beyond fair debate that the Ordinance s were not based on relevant and

appropriate data and an analysis by the County, as required by section s

163.3177(1)(f) and 163.3177(6)(a)2.

FLUM Amendment Analysis

1 1 2 . Specific analyses are relevant for these FLUM amendments.

See § 163.3177(6)(a)8., Fla. Stat.

1 1 3 . Based on the foregoing Findings of Fact, Petitioners did not prove

beyond fair debate that the three opt - out FLUM plan amendments were not

based on an analysis of the availability of facilities and services, as required

by section 163.3177(6)(a)8.

1 1 4 . Based on the foregoing Findings of Fact, Petitioners did not prove

beyond fair debate that the proposed FLU MU - S category was not suitable

in light of the existing character of the three opt - out properties , includi ng

s oils, topography, natural resources, and historic resources.

Meaningful and Predictable Standards

11 5 . Section 163.3177(1) provides that a comprehensive plan "shall

establish meaningful and predictable standards for the use and development

of land and provide meaningful guidelines for the content of more detailed

land development and use regulations . "

11 6 . Petitioners argued that the opt - out plan amendments are

inconsistent with section 163.3177(1) because they fail to establish

meaningful and predicta ble standards for removal of property from the

DSAP and renders the OSP meaningless.

11 7 . Based on the foregoing Findings of Fact, Petitioners did not prove

beyond fair debate that the three opt - out plan amendments rendered the

OSP meaningless and the Comp Plan lacking meaningful and predictable

standards for the use and development of land.

Summary

1 1 8 . For the reasons stated above, the County's determination s that the

Ordinance s are "in compliance" were fairly debatable.

1 1 9 . For the reasons stated above, Petitioner s did not prove beyond fair

debate that the Ordinance s were not "in compliance," as that term is defined

in section 163.3184(1)(b).

1 20 . Jurisdiction is reserved by the undersigned to address any

appropriate request for attorney's fees, costs, and sanctions.

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

R ECOMMENDED that the Department of Economic Opportunity enter a final

order finding Ordinance No s . 20 20 - 14, 2020 - 15, and 2020 - 16, adopted on

June 4 , 2020, by Escambia County, to be "in compliance," as defined by

section 163.3184(1)(b).

D ONE A ND E NTERED this 7th day of May, 2021, in Tallahassee, Leon

County, Florida.

S

F RANCINE M. F FOLKES

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 7th day of May , 2021 .

C OPIES F URNISHED :

Theresa Blackwell Kia M. Johnson, Esquire

9535 Tower Ridge Road Office of the Escambia County Attorney

Pensacola, Florida 32526 221 Palafox Place, Suite 430

Pensacola, Florida 32502 - 5837

Jacqueline A. Rogers

Neal Road/Knollwood Neighborhood William Beech

1420 Ridge Way 1956 West Kingsfield Road

Cantonment, Florida 32533 - 7991 Cantonment, Florida 32533

Charles V. Peppler, Esquire Frank E. Westmark

Office of the Escambia County Attorney Elizabeth J. Westmark

221 Palafox Place, Suite 430 Post Office Box 575

Pensacola, Florida 32502 Cantonment, Florida 32533

Sally B. Fox, Esquire Janay Lovett, Agency Clerk

Emmanuel, Sheppard & Condon, P.A. Department of Economic Opportunity

30 South Spring Street Caldwell Building

Pensacola, Florida 32502 107 East Madison Street

Tallahassee, Florida 32399 - 4128

Tom Thomas, General Counsel

Department of Economic Opportunity Dane Eagle, Executive Director

Caldwell Building , Mail Station 110 Department of Economic Opportunity

107 East Madison Street Caldwell Building

Tallahassee, Florida 32399 - 4128 107 East Madison Street

Tallahasse e, 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.