STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF COMMUNITY AFFAIRS, )
)
Petitioner, )
)
vs. ) CASE NO. 90-7663GM
)
ESCAMBIA COUNTY, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Don W. Davis, held a formal hearing in the above- styled case on July 22-August 2, 1991, and September 9-September 12, 1991, in Pensacola, Florida.
APPEARANCES
For Petitioner, Department of
Community Affairs: David J. Russ, Esq.
Karen Brodeen, Esq.
Department of Community Affairs 2740 Centerview Drive
Tallahassee, Florida 32399-2100
For Respondent,
Escambia County: David Bryant, Esq.
Old Courthouse Building Pensacola, Florida 32501
Ralph Peterson, Esq. Post Office Box 12950
3 West Garden Street Pensacola, Florida 32576
For Intervenor, Home Builders Association of West Florida, Edwin A. Henry and Henry &
Company, Inc.: Karen O. Emmanuel, Esq.
Vince Whibbs, Jr., Esq. Post Office Drawer 1271
30 South Spring Street Pensacola, Florida 32596
For Intervenor, League of Women Voters of Pensacola
Bay Area, Inc.: Muriel Wagner
6123 Confederate Drive
Pensacola, Florida 32503
Individual
Intervenors: Dorothy S. Kaser 7055 Marie Avenue
Pensacola, Florida 32504
Joseph T. Grizzaffi and Anneice Grizzaffi
2815 Mandeville Lane
Pensacola, Florida 32526
James Lane and Jacqueline Lane 10738 Lillian Highway
Pensacola, Florida 32506
Vivian Faircloth
126 West Jackson Street Pensacola, Florida 32501
Francis M. Weston Audubon Society Post Office Box 17484
Pensacola, Florida 32522
Gabrielle Faddis 3970 Rommitch Lane
Pensacola, Florida 32504
Michael A. Blanton
14180 River Road, Unit #8
Pensacola, Florida 32507-9646
Escambia Construction Company, Inc. Post Office Box 3256
Pensacola, Florida 32516
E. J. Gibbs
3400 Crabtree Church Road Cantonment, Florida 32533
STATEMENT OF THE ISSUES
The issue for determination is whether the comprehensive plan adopted by Escambia County is "in compliance" as that term is defined in Section 163.3184(1)(b), Florida Statutes.
PRELIMINARY STATEMENT
Pursuant to the requirements of the Local Government Comprehensive Planning and Land Development Regulation Act, Chapter 163, Part II, Florida Statutes, Escambia County adopted the Escambia County Comprehensive Plan (plan) by ordinance of October 8, 1990, and transmitted it to the Department of Community Affairs (DCA) for review. DCA issued a Notice of Intent to find the plan not in compliance.
On December 4, 1990, DCA 's petition was filed with the Division of Administrative Hearings. The petition alleges that the plan is not in compliance for reasons set forth in the accompanying Statement of Intent to Find Comprehensive Plan Not in Compliance. The Statement of Intent incorporates the objections, recommendations, and comments of the DCA.
The Statement of Intent alleges that the plan is not consistent with Sections 163.3188 and 163.3178, Florida Statutes; the State Comprehensive Plan (Chapter 187, Florida Statutes); the West Florida Comprehensive Regional Policy Plan; and Chapter 9J-5, Florida Administrative Code.
In its Answer, Escambia County generally denies the allegations of DCA. At the final hearing, DCA called twenty witnesses and offered into evidence fifty- one exhibits. Escambia County called eighteen witnesses and offered into evidence thirty-eight exhibits. Intervenor, Home Builders Association of West Florida, called four witnesses and offered into evidence two exhibits.
Intervenor, League of Women Voters of Pensacola Bay Area, Inc., called two witnesses and offered into evidence five exhibits. Intervenor, Jacqueline Lane, called one witness and offered into evidence two exhibits. Intervenor, Gabrielle Faddis testified as to the standing of the Audubon Society, and Intervenor, Gloria Dawson, testified as to the standing of the League of Women Voters. Intervenors, Anneice and Joseph Grizzaffi, James L. and Jacqueline Lane, Vivian Faircloth, and Dorothy Kaser, testified as to their individual standing to intervene.
The complete 30 volume transcript of the Final Hearing was filed on November 15, 1991. Upon agreement of the parties reached at conclusion of the final hearing, proposed recommended orders were to be filed within 20 days of the filing of the transcript with the Division of Administrative Hearings. By motion, heard via telephone conference on November 22, 1991, an extension of time was requested and the parties were granted leave to file proposed recommended orders with the Division of Administrative Hearings no later than January 2, 1992.
Proposed findings of fact submitted by the parties are addressed in the appendix to this recommended order.
Findings of fact are set forth below. Findings are grouped chronologically for assistance of the reader by the following designations: The Parties; Standing Of The Parties; County Background; History Of The Plan; Santa Rosa Island Authority; Efficiency Of Land Use And The Future Land Use Map; Protection Of Natural Resources; Coastal High Hazard Areas/Hurricane Evacuation; Coastal Management; Vested Rights; Financial Feasibility; Concurrency Management; Level Of Service Standards; Affordable Housing; Consistency With The State Comprehensive Plan; and Consistency With The Regional Policy Plan.
FINDINGS OF FACT
PARTIES
DCA is the state land planning agency charged under Chapter 163, Part II, Florida Statutes, with the review of comprehensive plans and plan amendments under Florida's Local Government Comprehensive Planning and Land Development Regulation Act (the Act). Final agency action with regard to plans and plan amendments found not in compliance by DCA is taken by the Governor and Cabinet, acting as the Administration Commission, in accordance with Section 163.3184(10), Florida Statutes.
Respondent, Escambia County, is a local government required to adopt a Comprehensive Plan under the Act.
The following intervenors filed petitions challenging portions of the plan: League of Women Voters of the Pensacola Bay Area, Inc.; Dorothy Kaser; Joseph Grizzaffi, Jr.; Anneice Grizzaffi; Francis M. Weston Audubon Society; Gabrielle Faddis; James Lane; Jacqueline Lane; and Vivian Faircloth.
The following intervenors filed petitions in support of the plan: Homebuilder's Association of West Florida, Inc., Michael Blanton and Escambia Construction, Inc.; Highland Development Group, Inc.; Edwin Henry and Henry and Co., Inc.; and E.J. Gibbs. Prior to commencement of the hearing Highland Development Group, Inc. withdrew its petition to intervene. As a result of stipulation of the parties, no objection is raised to the participation of the remaining parties who are intervenors on behalf of Respondent.
STANDING OF THE PARTIES
In order to intervene in this proceeding, the requirements of Section 163.3184(1)(a), Florida Statutes, must be met. First, the intervenor must be an "affected person" as defined by that section. Second, the intervenor must have submitted oral or written objection during the local government "review and adoption proceedings."
The local government "review and adoption" period is the period of time which runs from the issuance of DCA's Objections, Recommendations and Comments Report (the ORC Report) and the adoption of the plan. In the instant case this period of time commenced on August 10, 1990, the date of the ORC Report, and ended on October 8, 1990, the date of the plan's adoption.
The League of Women Voters of the Pensacola Bay Area, Inc. (the League), is a local chapter of the League of Women Voters. Gloria Dawson, former president for the League, spoke on behalf of the League before the Board of County Commissioners September 17 and 24, 1990, and expressed concerns and opinions regarding the County's proposed plan.
Between August 10, 1990, and October 8, 1990, the League also provided written comments to the County concerning the plan.
Many members of the League, including Gloria Dawson, Vivian Faircloth, Muriel Wagner, Dorothy Faddis, are residents of Escambia County; several members reside in the unincorporated area of the County.
Dorothy Kaser resides and owns property in Escambia County. She was a member of the Planning Board, the County's local planning agency pursuant to Section 163.3174, Florida Statutes, from 1988 to December 1990. Through her duties as a Planning Board member Ms. Kaser provided written and oral comments to the Board of County Commissioners regarding the comprehensive plan. Her comments were stated at Planning Board meetings during the local government review period, and were incorporated in the final Planning Board recommendation which was forwarded to the Board of County Commissioners for final approval and adoption.
Joseph Grizzaffi, Jr., and Anneice Grizzaffi are married and reside and own property in Escambia County. During the local government review period the Grizzaffis spoke on August 23,1990 to the Board of County Commissioners, impaneled as the Zoning Board, concerning mixed use categories, leapfrog development, and strip commercial development. The Grizzaffis made these comments in opposition to a rezoning request, but also as part of the larger planning scheme involving the comprehensive plan. The Grizzaffis were under the impression given by the Public Participation Procedures and the conduct of one of the commissioners at the August 23 meeting that comments concerning the plan could be directed to either the Board of County Commissioners or the Zoning Board.
The Frances M. Weston Audubon Society is a local chapter of the National Audubon Society (Audubon). Gabriel Faddis spoke about issues concerning the comprehensive plan on behalf of Audubon before the Board of County Commissioners on August 31 and September 24, 1990. Ms. Faddis represented Audubon at these meetings at the request of the Chapter's president.
James and Jacqueline Lane reside and own property in Escambia County. During the local government review process, neither of the Lanes provided the County any oral or written comments concerning the plan. Although the Lanes attended the adoption hearing, neither of them offered any comments because they felt it was "pointless." In their opinion, the period of time between the ORC Report and plan adoption was dedicated by the County to entertaining land use changes as opposed to constructive criticism or comments from the public.
Vivian Faircloth is a resident of Escambia County and an officer of the State League of Women Voters. Ms. Faircloth commented on the plan to the Board of County Commissioners on September 24, 1990. At that time she made it clear that she was speaking on behalf of herself, not the League, which was officially represented at the same meeting by Gloria Dawson.
DCA was not requested by the County to attend the plan adoption public hearings which were conducted on October 5 and 8, 1990.
COUNTY BACKGROUND
The most western county in the Florida Panhandle, Escambia County is bordered on the east by the Escambia River, on the west by the Perdido River, on the north by the State of Alabama, and on the south by the Gulf of Mexico. It is comprised of approximately 430,661 acres.
According to the plan's data and analysis, the population for the unincorporated portion of the County is estimated and projected as follows:
1990 232,271
1995 249,623
2000 263,150
There are only two incorporated municipalities within the County: Pensacola and Century. These municipalities have drafted and adopted their own plans. The City of Pensacola is an urban area in the southeast portion of the County with a population of approximately 62,036 persons; Century is a rural community in the northern portion of the County with a population of 2,664 persons. Approximately 95 percent of the County's population resides in the area of the County which extends from Pensacola to the middle of the County.
Escambia County has an abundance of valuable water resources including Pensacola Bay, Perdido Bay, Escambia Bay, Escambia River, Perdido River, Bayou Chico, and Bayou Texar. The County's surface water resources can be divided into four drainage basins: the Escambia River Basin, Pensacola Bay Basin, Perdido Bay Basin, and Perdido River Basin. The County also has significant wetland areas, particularly along the rivers, in the Southwest portion of the County and in the coastal areas.
In 1984 the Governor and Cabinet, sitting as the Administration Commission, designated the lower portions of Escambia and Santa Rosa counties a resource planning area pursuant to Section 380.045, Florida Statutes. This designation arose from concern about development damaging coastal dunes and wetland areas.
The purpose of this designation was not to stop growth in this area, but to evaluate the ability of the local governments to protect the environment through comprehensive planning and land development regulations. The evaluation was conducted by the Escambia-Santa Rosa Counties Coastal Resource Management Planning Committee, which produced a report containing numerous recommendations that were approved by the Governor and Cabinet.
In his November 24, 1984 charging letter to the committee, Governor Graham specifically asked it to evaluate the adequacy of resource protection, particularly for coastal dunes, wetland areas, and the estuarine resources of the various bay systems in the study area.
Historically the County has been reluctant to plan development. To date not all of the unincorporated areas of the County are subject to zoning regulations. The County did not have any zoning in the unincorporated area of the County until adoption of its Zoning Ordinance in 1989, which zoned the southern part of the County from what is known as Ten-Mile Road south to the coastal edge of the County. The County presently has two zoning ordinances of limited scope which were adopted only after intervention from the State.
One of the zoning ordinances applies to the limited area surrounding the University of West Florida, a state-funded university. The University of West Florida zoning ordinance was adopted at the insistence of the State, which did not wish to invest in an unplanned area, prior to the construction of the university. The Urban Land Use Regulation Ordinance, which applies to the area south of Ten Mile Road, was adopted at the request of the Escambia-Santa Rosa Counties Resource Protection Management Committee as a first step towards planning future development.
HISTORY OF THE PLAN
The County contracted with the West Florida Regional Planning Council (RPC) to draft proposed goals, objectives and policies; compile support data and analysis; and provide technical assistance in the preparation of the plan. The RPC also drafted a Future Land Use Map after the ORC Report was issued. This map was not adopted by the County.
The key person involved with the preparation of the plan was Robert Koncar, Assistant County Administrator. Although the County has a planning staff housed in the Department of Planning and Zoning, the County's planners were not involved in the preparation of the plan. Koncar personally revised the goals, objectives, policies and the Future Land Use Map Series which had been developed by the RPC.
The County's land development regulations were due to be adopted by May 1, 1991. Those regulations were not adopted on schedule, nor was the Concurrency Management System which the County affirmatively committed to adopt in Capital Improvements Policy 1.3.7 of the plan by May 1, 1991.
The proposed plan was received by DCA on May 1, 1990. DCA issued its ORC Report on August 10, 1990.
The County held public hearings on the adoption of its plan on October
5 and October 8, 1990. During the course of these public hearings the County considered numerous applications for land use changes. These changes applied to designations on the Future Land Use Map series.
The application forms for land use changes simply requested information as to the location of the property and desired use. No explanation or data and analysis was required of an applicant to justify a land use change. No data and analysis was submitted by the County to DCA to support these land use changes.
The proposed plan originally did not include planning for Pensacola Beach and Navarre Beach. The proposed Santa Rosa Future Land Use Sub-element (Santa Rosa Sub-element) was submitted to DCA after submittal of the proposed plan. The Sub-element was prepared later by a different consultant, the Strategic Planning Group, following DCA's objection to Santa Rosa's exclusion from the plan. DCA reviewed the proposed Santa Rosa Sub-element and its data and analysis later and issued a separate ORC Report based on it.
On October 8, 1990, the Escambia County Board of County Commissioners adopted Ordinance 90-18 which by reference adopted the Goals, Objectives, and Policies of the Comprehensive Plan and the Future Land Use Map or Map Series.
On November 30, 1990, DCA issued its Statement of Intent to find the plan to be not in compliance.
In 1991 the legislature adopted Chapter 91-310, Laws of Florida, which altered the boundary line between Escambia County and Santa Rosa County so that Navarre Beach is now in Santa Rosa County.
SANTA ROSA ISLAND AUTHORITY
One of the unusual physical features of Escambia County is Santa Rosa Island, a coastal barrier which stretches from the eastern half of the County to Walton County.
The County acquired 20 miles of the western-most portion of the Island by deed from the federal government in 1946 to be used in the public interest subject to regulation by the County, whether leased or not. A substantial part of the Island was given back to the federal government to be used as part of the National Seashore. The deed specifically prohibits the County from selling any part of the Island.
The remainder of the County's portion of the Island was either placed under the control of the Santa Rosa Island Authority (SRIA) or leased to Santa Rosa County. The SRIA was established by special act in the 1950's to administer the County's portion of the islands.
The SRIA is governed by a board consisting of one member selected by each of the five County Commissioners and one member elected by residents on the Island. The Authority has an executive director and permanent staff of approximately 60 employees.
Beginning in the 1950's, the SRIA disposed of the property under its control by entering into standard 99-year leases with automatic 99-year renewals. These leases are for commercial and residential properties and generally authorize the construction of development on the parcels up to a certain intensity of use or density. More current commercial leases for other than hotel purposes are generally for shorter periods than 99-year terms.
The leases are not subject to a bidding process or other competitive public process. They are negotiated with private individuals on a case-by-case basis. The rent provided for in the lease has no relationship to the market value of the property. The term of the leases has no relationship to the need to amortize an investment.
Very few of the parcels subject to leases for multiple-family use on Pensacola Beach have been built to the maximum density provided for in the lease; yet, most of those uses are earning a profit.
The data and analysis, and goals objectives and policies, relating to Santa Rosa Island were done under the assumption that the outstanding leases are enforceable over the police powers of the County. The portions of the plan relating to Santa Rosa Island were designed to take those leases into account. If a "carrying capacity" analysis of the island had been done, a completely different result would have been recommended by the consultant.
No effort has been made by the County or the SRIA to challenge the validity of the leases or to enter into a program to minimize the number or term of the leases. In fact leases are still being executed by the SRIA with no information about how the rent relates to the fair market value of the property.
In 1985 the County issued a series of revenue bonds to pay for improvements on Pensacola Beach. The revenues which were pledged for repayment included anticipated lease payments from new lessees. The number of units actually built since 1985 has been a mere fraction of the ones anticipated in
the bond documents. Yet the debt service on the bonds has been kept current, and existing revenues will be sufficient to maintain those payments into the foreseeable future.
The SRIA generates no funds for Escambia County government, and the leases are not subject to ad valorem taxation.
EFFICIENCY OF LAND USE AND THE FUTURE LAND USE MAP
As early as its 1980 Comprehensive Plan (1980 Plan), the County acknowledged predominant land development patterns in the unincorporated area characteristic of two types of sprawl: The random development pattern and the corridor pattern.
These development patterns resulted from past policies of minimum planning, lack of development coordination and absence of land use or zoning controls in the County except for the areas around the University of West Florida. That area, under the University of West Florida Land Use Regulations, exhibited orderly growth in contrast to other parts of the County.
The corridor pattern of growth along the major transportation routes had become an increasing trend in Escambia County in the 1980's as the urbanized area spread outward to the north and west.
Even though these patterns of development were criticized in the 1980 Plan, they are still characteristic of the types of development which currently exist in the County and are encouraged by the land use designations on the Future Land Use Map.
The 1980 plan noted that the random development, or leapfrog pattern, was characterized by low density residential clusters in the urbanized areas of the County surrounding the City of Pensacola with scattered intermittent commercial and mixed uses along the major transportation routes radiating out from the urban areas.
The random or leapfrog growth pattern, characterized by intermittent, developed clusters and undeveloped open spaces, produces low tax revenue per acre of land, a very high cost of providing services and facilities to the scattered clusters, and little incentive for fill-in development in the vacant areas.
Generally speaking, single-family residential property does not generate sufficient ad valorem tax revenue to pay the costs of providing public services to the property, especially when sprawling patterns make those services more expensive to provide.
Sprawling development patterns impose additional costs, such as increased utility costs and lower levels of service on roads, some of which may be offset by reduced land costs. However, accommodating such patterns through the provision of public services like law enforcement, emergency response, water and sewer, and public schools, also tends to result in the subsidization of inefficient development patterns by residents who live or do business in areas characterized by a mixture of functionally related uses.
These costs are of increasing significance to County governments in rapidly growing areas like Florida because residents of unincorporated areas are increasingly demanding a level of public services that used to be enjoyed only by residents of incorporated municipalities.
Requirements that a plan be based on data and analysis, protect natural resources, maximize use of efficient infrastructure, and be financially feasible, are related in the sense that a plan which discourages sprawl is more likely to accomplish these planning objectives as well.
The term "urban sprawl" as it appears in Chapter 9J-5 is used to describe certain kinds of growth or development patterns. It refers to scattered, untimely, poorly planned urban development that occurs in urban fringe and rural areas, and frequently invades lands important for environmental and natural resource protection. Urban sprawl typically manifests itself in one or more of the following patterns: (1) leapfrog development; (2) ribbon or strip development; and (3) large expanses of low- density, single-dimensional development.
Leapfrog development occurs when new development is sited away from an existing urban area, bypassing vacant parcels located in or closer to the urban area that are suitable for development. It typically results in scattered, discontinuous growth patterns in rural areas which are frequently not appropriate for urban development.
Leapfrog development may occur due to the lower cost of land outside the urban area compared to the cost of developable land in the urban area. This can occur when plans fail to address the timing of development in addition to its location.
Leapfrog development commonly occurs in areas where infrastructure and services do not already exist to serve it; thus, it requires additional utility extensions and involves higher public capital costs if complete urban services are to be provided at the time of development. If complete urban services, such as connection to central water and sewer systems, are not required, leapfrog development may still present an increased risk to water supplies and sensitive environmental areas.
Leapfrog development is not usually mixed-use, multi-dimensional development. Consequently, it works against the creation of vibrant communities, creates much greater dependence on automobile transportation, and results in an inefficient use of land resources.
Strip or ribbon development involves the location of high amounts of commercial, retail, office and often multi-family residential development in a linear pattern along both sides of major arterial roadways. Strip development is generally dependent on direct access to the arterial roadway and typically reduces the efficiency of the roadway for moving through traffic due to the high number of curb and median cuts and access points which must be permitted. Strip development frequently overburdens arterial roadways with local trips since local road networks remain poorly developed or nonexistent.
Unsightly strip development can extend for miles along arterials into rural, previously undeveloped areas, and sometimes encroach on environmentally sensitive lands or important natural resource areas. Large land areas behind and between strip developments are commonly left undeveloped.
Low-density, single-dimensional development consists of single land uses, typically low-density residential, spread over large land areas. Frequently, the land is in rural, forestry, agricultural, or environmentally sensitive areas that may require protection from urban development.
This land-intensive development pattern, stemming from uncontrolled, poorly planned, and premature development, tends to place an undue burden on external infrastructure and major transportation connectors by not providing a complementary mix of residential, commercial, industrial, recreational and institutional uses. Sprawling single-use development hinders the evolution of vibrant communities, reinforces dependence upon personal automobile use, generates higher public costs for facilities and services, promotes an inefficient use of developable land, and frequently destroys significant environmental and natural resources.
Allowing low-density development on large expanses of land also frequently precludes development or redevelopment at the higher densities that become appropriate as the urban or urbanizing area grows. The resulting growth pattern encourages leapfrog development. If redevelopment of these low-density areas to higher intensities does occur, the costs to expand public facilities and services will commonly be substantially higher than would have been incurred to provide the infrastructure capacities that would have been appropriate initially.
Plans which fail to discourage urban sprawl often over-allocate land uses, especially residential uses, and designate areas for development which are not suitable, such as wetlands, floodplains, poorly drained soils and aquifer recharged areas.
An unregulated land development environment is usually unsuccessful in bringing about truly efficient land development patterns because such a market does not force a developer or land consumer to pay the true, full economic costs of land development. Hidden subsidies may arise from a failure to impose marginal cost pricing of utilities, failure to establish special taxing units to reflect actual costs of parties' utilities, and failure to assign costs to destruction of natural resources like wetlands and aquifer recharge areas.
Sprawling development patterns also adversely impact agricultural operations in that such patterns may cause land use conflicts by encouraging farmers to abandon reinvestment in their farm operations and begin looking to sell their land.
The Escambia County plan greatly over-allocates residential land uses. This over-allocation is not based on data and analysis. Generally, the number of developable acres designated for use over the 10 year planning period should be only slightly larger (25 percent) than the number of acres needed for that particular land use. Using the County's own assumption regarding densities, approximately 18,841 acres will be required to meet residential needs, excepting agricultural and agricultural/timber categories. The plan allocates total acreage of 122,980, or more than five times the land supply needed for this purpose. The plan allocates 8,881 acres for commercial and industrial purposes in the face of assumed need for only 4,294 acres, more than twice the projected need.
The Escambia County Comprehensive Plan actually encourages the proliferation of urban sprawl in the land use patterns set out on its Future Land Use Map (FLUM). Similarly, the plan is not based on data and analysis regarding land use allocations and, by encouraging scattered residential development, poses a threat to the continued viability of agriculture in the County.
Future Land Use Element (FLUE) Policy 3.1.3 classifies residential land uses. The following land use categories, as established by that policy, allow special exceptions as land uses: Agricultural Residential; Rural Residential/Mixed Use; Low Density Residential; and Urban Residential. Nowhere in the plan is there any indication of what uses will be allowed by special exception or what criteria will be used in establishing the conditions for a special exception. Thus, the plan's densities and intensities of use for Agricultural Residential; Rural Residential/Mixed Use; Low Density Residential and Urban Residential are chimera.
The plan includes mixed use classifications of land use in several policies: FLUE Policy 3.1.5 (Mixed Use and Mixed Use-Southwestern District),
3.1.5.a (Mixed Use and Mixed Use- Southwestern District), 3.1.3 (Rural Residential-Mixed Use), and Santa Rosa Sub-element Policy 1.4.5 (Medium Density Residential Commercial and High Density Residential Commercial) and 1.4.8 (High Density Residential). Nowhere in these policies or related policies, including FLUE Policy 4.1.22 and 4.1.23, is there any criteria which establish the composition of mixed use categories (i.e., 30% commercial, 70% residential) or guide the implementation of these mixed use classifications such as by ensuring that the land uses are functionally related. Thus, no densities or intensities of use have been established for these land use categories. The plan does not ensure that development will result in a balanced and complimentary mixture of land uses.
FLUE Policy 3.1.5 establishes land uses for the Mixed Use-Southwestern District. This category allows the following development: Low Density residential, 1-7 dwelling units per acre; Medium Density Residential, 8-15 dwelling units per acre; and Commercial, consistent with lot coverage standards of 75% maximum coverage for all impervious surfaces. The Future Land Use Map series does not indicate where the various residential densities are allowed nor does the plan include any criteria to provide any guidance as to which density would apply where and under what circumstances.
Most of the area in the Mixed Use-Southwestern District contains wetlands. Based on the General Soils Map contained in the data and analysis, this area is dominated by Klej-Leon (somewhat poorly drained), Plummer-Rutledge (poorly drained) and undifferentiated poorly drained flood plains and swamps. These soils, which are indicative of poor drainage, are referred to as hydric soils, which is an indicator of wetlands. The data and analysis does not analyze the suitability of this area for development despite the soils characteristics.
Santa Rosa Sub-element Policy 1.4.5 establishes land uses for Pensacola Beach and includes a category denominated Conservation/Recreation. That classification states in pertinent parts:
. . . depending on the specific characteristics of each site appropriate recreation uses may include public parking, beach access, boardwalks, nature trails, boat launching areas, docking facilities, picnic areas, rest rooms, and other such related uses as may be approved by the Santa Rosa Island Authority consistent with legal requirements presently
in force. Other uses may by approved by the Santa Rosa Island Authority subject to appropriate studies which demonstrate that such uses are environmentally sound and in the public interest . . .
The development of a golf course is allowed by this category and has been specifically contemplated in the past by the Santa Rosa Island Authority.
Language of the Conservation/Recreation category in Santa Rosa Sub- element Policy 1.4.5 (10), affords great discretion in the Santa Rosa Island Authority as to what "other uses" are in the "public interest" or "environmentally sound. "No standards are provided which would specifically identify the limits of the types of uses for this classification or the specific criteria which would apply in ensuring a development was in the "public interest" or "environmentally sound." As a result, this policy places unbridled discretion for development in the hands of the Santa Rosa Island Authority, an entity not elected and not accountable to the public.
The residential density for the area depicted on the Future Land Use Map as Special Development/Buffer is established in the FLUE Policy 3.1.1 and FLUE Policy 3.1.9. These policies are internally inconsistent as relates to residential densities. Policy 3.1.1 allows one to five dwelling units per acre and Policy 3.1.9 allows only one dwelling unit per acre for this land use.
FLUE Policy 3.1.7 establishes land uses for the Recreational category allowing "public recreation areas, private recreational facilities, including limited commercial uses, such as marinas, public utilities." The intensity must be "consistent with lot coverage included in the land development regulations." This policy is inadequate because the intensity of development must be established in the plan, not the land development regulations.
FLUE Policy 3.1.8 establishes land uses for the Conservation category. This category allows:
. . . activities compatible with the purposing of conserving or protecting natural resources, including flood control, wildlife habitat protection[,] resource-oriented recreational uses, wetlands application of reclaimed water where appropriate and beneficial, and, where appropriate, silviculture using best management practices as defined by the Florida Division of Forestry.
No density or intensity is established in the plan for this category. The County could have established intensities for this category through lot coverage, floor area ratios, height densities, and bulk criteria.
Santa Rosa Sub-element Policy 1.4.5 establishes land uses for Pensacola Beach including the following categories: General Retail; Recreation Retail; Conservation/Recreation; and Government and Civic. Each of these categories allows development but does not establish any densities or intensities.
Santa Rosa Sub-element Policy 1.4.8 establishes land uses for Navarre Beach including the following categories: High Density Residential; Commercial; and Recreation. Each of these categories allows development but does not establish any densities or intensities.
The data and analysis submitted to support the proposed plan included a map series which identified historic districts, archeological areas, historical sites, and additional facilities. The Future Land Use Map series does not depict any historic properties, although such properties are known and identified in the data and analysis.
The data and analysis identifies existing and planned water wells. Table 15 lists wells operated by various facilities for public and industrial uses and Table 16 lists future wells projected for the period of 1985-2005. These existing and future wells are depicted on a location map which is a part of the data and analysis. However, the locations of these existing and future wells are not depicted on the Future Land Use Map series. Further, the areas around major water wells, termed "cones of influence" are also not depicted on The Future Land Use Map series.
The data and analysis depicts the 100-year floodplain on a location map. The 100-year floodplain is not depicted on the Future Land Use Map series.
There are various types of wetland systems in Escambia County including: Bottom land hardwood communities, located along the Escambia River; the mixed wetlands, found in the Southwest District and the Perdido area; estuarine systems associated with the estuaries Pensacola Bay, Escambia Bay and Perdido Bay; coastal salt marshes; and the unique freshwater lens system found on Perdido Key and Santa Rosa Island.
The Future Land Use Map series fails to depict all these wetlands.
The identification of hydric soils may be a good indicator of wetland areas, but the Generalized Soils Map which is found in the support data and analysis was not adopted by the County. The adoption ordinance does not indicate that the County adopted a wetlands map of any kind.
The data and analysis generally depict soils. The data and analysis contain a map entitled "General Soil Map" which was prepared by the U.S. Department of Agriculture in 1960. This map was not adopted as a part of the Future Land Use Map series. The Future Land Use Map series which was adopted depicts no soil information.
The data and analysis generally depict sandy clay and clay; medium- fine sand and silt; and gravel and coarse sand on a map entitled "Mineral Resources." This map was not adopted as a part of the Future Land Use Map series. The Future Land Use Map which was adopted does not depict any mineral information.
The Future Land Use Map series consists of three maps: a countywide map with land use categories "drawn" on a Florida Department of Transportation general highway map, a map of Pensacola Beach, and a map of Navarre Beach. The countywide map is internally inconsistent with the Navarre Beach Map because the countywide map depicts only three land use classifications on Navarre Beach:
Low density residential, Commercial, and Conservation. The Navarre Beach Map, however, includes these different designations: low density residential; medium density residential; high density residential; commercial public utility; outdoor recreation; and preservation. The policies in the FLUE which describe low density residential (Policy 3.1.3), commercial (3.1.4) and recreation (3.1.7), describe different uses and intensities or densities than are described for categories of the same name in Santa Rosa Policy 1.4.8.
The countywide Future Land Use Map depicts a Tourist/Resort category on Pensacola Beach. No policy establishes this category, describes the allowable uses, or establishes densities or intensities of use.
The countywide map depicts a large area next to the City of Pensacola as "Commercial." FLUE Policy 3.1.4 defines this classification to allow commercial activities and public facilities and specifically prohibit residential development. The Existing Land Use Map found in the data and analysis indicates that the existing land uses are more varied and include residential uses. No explanation of the prohibition of residential development exists within the data and analysis.
PROTECTION OF NATURAL RESOURCES
The data and analysis identifies numerous types of natural resources: rivers, bay, lakes, estuaries, groundwater, wildlife, endangered and threatened plans and animals, trees, wetlands, dune systems, and marine resources.
The FLUE is required to include an objective ensuring the protection of natural resources. The only objective in the FLUE which attempts to address countywide natural resources is Objective 1.9, which reads:
By May 1991, development criteria shall be adopted in the land development code to protect areas designated as Conservation, Special Development/Buffer, and other land requiring protection due to the presence of sensitive natural resources.
FLUE Objective 1.9, while expressing a basic goal, is not specific and measurable. It is meaningless for purposes of marking progress toward an identified goal. Simply referring to a time frame does not make it measurable. Objectives and policies intended to meet the requirements of Chapter 9J-5, F.A.C., must be substantively effective upon adoption and not relegated to adoption through land development regulations.
The data and analysis identify numerous natural resources throughout the County which are threatened by development and should be protected, however FLUE Objective 1.9 provides limited protection to the two areas designated Special Development/Buffer and to the few coastal areas designated Conservation. Therefore, this objective is not supported by the data and analysis.
The FLUE is required to contain a policy which addresses implementation activities for the protection of environmentally sensitive land. The only policy in the FLUE which attempts to address the protection of environmentally sensitive land is FLUE Policy 1.9.1, an implementing policy of FLUE Objective 1.9., which states:
The development criteria shall include, but not be limited to, the prohibition of
development of areas designated as Conservation, severe limitation of development potential for areas designated as Special Development Buffer, special review and approval procedures for properties which may be identified as having sensitive natural resources.
FLUE Policy 3.1.9 establishes a residential density of one dwelling unit per acre for the Special Development/Buffer. Per the FLUM, this is a land use found in only two areas in the eastern portion of the middle section of the County.
The term "severe limitation" contained in FLUE Objective 1.9. is not defined, leaving the application of this policy to be subject to interpretation. The referenced special review and approval procedures have not been delineated, nor have other areas containing sensitive natural resources (in addition to the Conservation and Special Development/Buffer areas) been identified, yet they are known to exist, as shown in the data and analysis. Accordingly, FLUE Policy
1.9.1 does not adequately address implementation activities for the protection of environmentally sensitive land.
FLUE Policy 1.9.2, also an implementing policy of FLUE Objective 1.9, states:
The County shall maintain and implement Section XVI of the Urban Area Land Use Regulation Ordinance, as may be amended, requiring review of all properties for presence of wetlands prior to issuance of any development permits. Development projects proposed for development on lands identified as containing wetlands must complete the special development review
procedures established in the land development regulations. Provision shall be established in the Land Development Regulations for requirement exemption through an agreement of nondevelopment of wetland areas.
FLUE Policy 1.9.2 fails to establish specifications or programs to protect wetlands, is not supported by the data and analysis, and allows the policy to be amended from time to time without going through the necessary agency review process required by Section 163.3184, Florida Statutes. Accordingly, FLUE Policy 1.9.2 does not adequately address implementation activities for the protection of environmentally sensitive land.
FLUE Policy 4.1.9 states:
The County shall develop criteria for assessing the negative impacts of a potential development upon the environment which shall include, but not be limited to:
Environmental habitat adjacent to proposed development;
Intensity of development;
Potential pollutants or other negative impacts released as a result of development.
This policy is inadequate because it does not identify specific actions or programs. It does not constitute a "policy" as that term is defined in Rule 9J- 5.003(68), F.A.C., and it defers implementation or action until a future date.
The plan, including FLUE Policies 4.1.9, 1.9.2, and 1.9.1, do not adequately address implementation activities for the protection of environmentally sensitive land as required by Rule 9J-5.006(3)(c)6, F.A.C.
As applied specifically toward the protection of environmentally sensitive lands on Santa Rosa Island, Santa Rosa Island Sub-element Objective
1.4 states:
Design and adopt a Future Land Use Map for Santa Rosa Island which coordinates the built environment with the natural environment.
The Future Land Use Map shall coordinate topography, soils, beachdunes, native vegetation, natural waterbodies, and other natural resources with compatible intensities of allowable urban land uses such that potential Island population densities do not exceed hurricane evacuation capability.
Policies 1.4.1-1.4.7 of Santa Rosa Island Sub-element Objective 1.4 do not ensure the protection of environmentally sensitive land because they do not identify specific actions or programs in accordance with the definition of "policy" in Rule 9J-5.003(68), F.A.C. Accordingly, there is no FLUE policy which adequately addresses implementation activities for the protection of environmentally sensitive land on Santa Rosa Island.
The Coastal Management Element (CME) is required to include an objective for each goal statement which protects beaches or dunes, establishes construction standards minimizing impacts of manmade structures on beach or dune systems, and restores altered beaches or dunes.
CME Policy 2.1.9 states: Construction seaward of the Coastal
Construction Control Line shall only be permitted if state permits are first obtained.
The Coastal Construction Control Line is a line established by the State of Florida, Department of Natural Resources pursuant to Chapter 161, Florida Statutes, under the premise that the area seaward of the line is subject to erosion. The State will not consider approval of development seaward of the coastal construction control line unless the applicable local government has already approved it. This provision of the plan makes construction contingent on state approval, contrary to law. It is inconsistent with requirements of Chapter 161.
The Future Land Use Map series depicts development seaward of the coastal construction control line, including areas which are vacant. CME Policy 2.1.9, along with the Future Land Use Map designations which allow more development than is supported by the data and analysis, abrogates the County's duty to regulate the area seaward of the coastal construction control line in order to protect dune systems or other coastal resources. By failing to discourage development seaward of the coastal construction control line, CME Policy 2.1.9 fails to achieve the goal statement of Goal 2 of the Coastal Management Element which is to protect human life and limit public expenditure in areas that are subject to destruction by natural disaster.
Objectives under Goal 2 of the CME do not adequately address protection of beaches and dunes as required by Rule 9J-5.012(3)(b)4., F.A.C.. CME Objective 2.1 addresses only maintaining a roadway clearance time for hurricane evacuation of twelve (12) hours; Objective 2.2 simply requires the County to identify the Coastal High Hazard Area; Objective 2.4 is concerned with public expenditures for facilities and infrastructure in the Coastal High Hazard Area; Objectives 2.5, 2.6. 2.8, 2.9, and 2.10 address dune reconstruction in the limited situation of post-disaster redevelopment.
CME Objective 2.7 states:
Establish site design criteria for construction and reconstruction within the Costal High Hazard Area.
This objective is inadequate. It provides no specifically measurable intermediate end that is achievable marking the progress toward Goal 2.
Similarly, CME Objective 2.11, which provides that
"[c]onstruction activities on Santa Rosa Island shall not adversely impact the barrier island system," is inadequate because it is not specific and measurable.
CME Objective 2.12 reads: "Allow no further loss in the acreage of beaches and dunes on the barrier island(s)." This objective, although specific and measurable, is inadequate because it applies only to the barrier islands and ignores the beach and dune resources on the mainland. Furthermore, development is specifically allowed in the beach and dune areas based on the Future Land Use Map designations. This internal inconsistency poses the question of whether the County intended Objective 2.12 or the Future Land Use Map to control the issuance of development orders in this area.
The CME is required to include a policy identifying regulatory or management techniques for limiting the specific impacts and cumulative impacts of development or redevelopment upon wetlands and living marine resources. The CME is also required to include an objective which protects, conserves, or enhances remaining coastal wetlands and living marine resources.
CME Objective 1.1 fulfills the requirement of Rule 9J-5.012(3)(b)1., F.A.C., to conserve remaining wildlife habitat, but none of its implementing policies meet the requirements of Rule 9J-5.012(3)(c)1., F.A.C., to limit impacts of development upon wetlands and living marine resources. CME Policy
1.1.6 appears to address this requirement. It is inadequate, however, because it fails to identify specific implementing actions or programs and it defers protection of these resources until the adoption of land development regulations. The policy states:
The County shall, in conjunction with the Santa Rosa Island Authority, adopt or amend land use regulations on barrier islands, including Perdido Key and Santa Rosa Island, and other coastal areas identified in data and analysis which, at minimum address the
protection of tidal wetlands, native vegetative communities and critical habitat of wildlife species which are endangered, threatened, or
of special concern as identified by the
U.S. Fish and Wildlife Service, Florida Game and Fresh Water Fish Commission, and Florida Department of Natural Resources.
This policy fails to include any criteria indicating what the land development regulations will require to protect these resources and no interim protection is provided.
CME Objective 1.4 states: "By December 1992, the County shall develop a plan of action for maintaining and improving estuarine quality in the Coastal Area." This objective is inadequate because it defers implementation until December, 1992, and does not provide any criteria for any interim or future plan of action. No other objective in the CME addresses estuarine environmental quality. Therefore, there is no objective in the CME which maintains or improves estuarine environmental quality.
The CME is required to include a policy identifying regulatory or management techniques for limiting the specific and cumulative impacts of development upon wetlands. CME Policy 1.3.7 clearly attempts to address the requirements of this rule. However, it is inadequate to achieve the objective of protecting wetlands. The policy states:
By 1993, amend existing land development regulations to include specific protection provisions for the specific cumulative impacts of development or redevelopment upon wetland areas as indicated and recommended by the stormwater management plan study.
On its face, this policy is intended to address only the impacts of stormwater runoff on wetlands, and does not address other specific cumulative impacts of development or redevelopment such as the restriction or prohibition of development in wetlands. Furthermore, the policy is inadequate because it defers implementation until 1993 through land development regulations and no specific criteria is included in this policy as to what should be included in those regulations.
The CME is also required to include a policy which identifies regulatory or management techniques for limiting impacts of development upon wildlife habitat. CME Policy 1.1.2 attempts to address this requirement. This policy states:
By May 1991, revise the Special Development District Regulations to include special provisions to enhance wildlife protection to include, but not be limited to, consideration of cluster development, increasing mandatory open space requirements, consideration of wildlife corridors between special development districts and other such districts, in addressing the protection of tidal wetlands, native vegetative communities and critical habitat of wildlife species which are endangered, threatened, or of special concern as identified by the U.S. Fish and Wildlife Services, Florida Game and Freshwater Fish Commission, and Florida Department of Natural Resources.
The vague use of the term "consideration" in CME Policy 1.1.2 does not provide any assurance that these actions will actually be implemented at a future date. Furthermore, the policy is not specific and measurable due to lack of criteria for open space, cluster development, or wildlife corridors.
Further, the policy does not identify how the protection of species will be implemented. All of this is deferred to special development district regulations. 1/
The quality and quantity of waters flowing into estuarine or oceanic waters is not adequately protected as required by Rules 9J-5.013(2)(b)2., and 9J-5.013(c)6., F.A.C. The Conservation Element (CE) objectives of the plan are silent as to water quantity. Objective 1.1 refers to a state government agency's standards which apply only to water quality and do not address water quantity.
CE Objective 1.1, which addresses surface water quality, states: "Prevent degradation of surface water quality below water qualities standards using as a minimum Chapter 17-25.040(5), F.A.C., in consideration of development of alternative regulations."
Rule 17-25.040, F.A.C., is the Florida Department of Environmental Regulation rule for construction permit requirements for new stormwater discharge facilities. That rule, in turn, references Rule 17-25.030, F.A.C., which provides exemptions from the notice and permitting requirements of the Chapter. Rule 17-25.030 exempts single-family duplex, triplex and quadraplex facilities. Thus, CE Objective 1.1 applies only to water quality standards for new development and excludes single-family duplex, triplex and quadraplex facilities and existing development from drainage facility standards.
CE Policy 1.1.11, which implements CE Objective 1.1, reads:
Adopt or amend land development regulations to require retention/detention of stormwater runoff prior to discharge into surface water; and to prevent discharge of untreated or treated domestic and industrial waste water (which does not meet current treatment standards) into these areas through public and private sewage treatment plants, poorly designed septic disposal systems [or] both.
Mechanisms shall include the Stormwater Management Conservation Ordinance, the formal agreement called for in Policy 1.1.10 and Policy 2.11.4 in the Coastal Management Element. Require all new development adjacent to marine, aquatic, environmentally sensitive and estuarine areas to prohibit depositing
into any of these areas stormwater and domestic water that does not meet treatment standards set forth in Section 17-25.040(5), F.A.C., and the Escambia County Department of Health Regulations relative to septic tanks."
CE Policy 1.1.11 adopts by reference Rule 17-25.040(5), F.A.C., which applies the exemptions of Rule 17-25.030, F.A.C., and expressly does not apply to existing development. Thus, CE Policy 1.1.11 does not identify surface water quality standards which are to be maintained for all development.
Water quantity may adversely impact water quality especially in wetlands where water moves slowly. Development in and adjacent to wetlands adds runoff, silt and fertilizers to the wetland system. If these substances exceed the carrying capacity of the wetlands, adequate purification of the water does not occur before it enters into the estuaries. Development of wetlands also impairs their ability to retain water and absorb stormwater impact.
The County has experienced problems associated with untreated stormwater runoff. The County's engineer has identified four main areas which experience stormwater runoff problems. In those areas the development is primarily single-family residential. Therefore, there is no rational basis for the County to exempt existing development and single-family development from its stormwater standards. There also is no basis in the data and analysis for the County to exclude duplexes, triplexes, and quadraplexes from the stormwater standards.
The CE is required to include a policy addressing implementation activities for the restriction of activities known to adversely affect the survival of endangered and threatened wildlife. The County has many plants and animals which are threatened, endangered, and species of special concern. The data and analysis identifies threatened, endangered and special concern communities in Escambia County which were identified by the Florida Natural Areas Inventory.
CE Policy 1.8.3 states:
Endangered species habitats and unique natural areas, as identified by the Florida Natural Areas Inventory, shall be considered environmentally sensitive. Prior to development in these sections, the development site shall
be inventoried for the presence of environmentally sensitive habitats. The results of this survey, as well as mitigation measures for protection of these features if found, shall be submitted as part of land development permit applications submitted for the project.
This policy fails to take into consideration the known listed species already identified by the Florida Natural Areas Inventory as reflected in its data and analysis. This policy also does not address the habitats of threatened species and fails to establish specific criteria which will be applied to development in order to protect the functional viability of the habitats of endangered species.
The CE is required to include a policy which addresses implementation activities for the protection and conservation of the natural functions of certain natural resources including rivers, wildlife habitat, estuarine and wetland areas.
CE Policy 1.1.13 attempts to address these requirements. The policy reads:
By December 1991, the County shall, in conjunction with federal, state and local agencies, develop a set of recommendations to further provide for protection of rivers,
wildlife habitat, estuarine, and wetland areas. Once the study has been completed specific recommendations shall be forwarded to the Board of County Commissioners for inclusion to land development regulations.
CE Policy 1.1.13 does not apply to the natural resources known to be present in the County. The data and analysis identifies numerous natural resources, such as rivers, wildlife areas, estuarine areas, and wetlands, whose natural functions qualify for immediate protection. Accordingly, the policy is not based on the data and analysis.
CE Policy 1.1.13 also is not an adequate policy because it does not provide specific criteria which will be used to protect the natural functions of these resources. This policy refers to an undefined and uncommenced study which will be conducted in conjunction with federal, state and local agencies. The policy should include the specific criteria needed to protect the natural resources and be in place at the time of plan adoption, not at a later time such as December, 1991, or at the time of adoption of land development regulations.
COASTAL HIGH HAZARD AREAS/HURRICANE EVACUATION
The CME is required to include an objective for each goal statement which directs population concentrations away from known or predicted Coastal High-Hazard Areas.
The plan contains no provisions to direct or discourage population concentrations away from Coastal High-Hazard Areas. CME Objective 1.8 states:
Development or redevelopment in the coastal area shall occur only if minimum level of service standards for infrastructure is met or exceeded.
The coastal area is defined by the County as including the area approximately one to one and a half miles inland from the shoreline, with the exception of the area adjacent to Escambia Bay along the bluffs. This includes the barrier islands in their entirety. This coastal area is depicted on Existing Land Use Map Series I which was submitted with the proposed plan.
The plan defines the Coastal High-Hazard Area in CME Policy 2.2.1 as the area seaward of the Coastal Construction Control Line established by the Department of Natural Resources; Federal Emergency Management Velocity (V) Zones designated on the Flood Insurance Rate Maps for Escambia County; and areas which have historically received damage in areas scientifically predicted to receive water damage in a Category 3 hurricane. The Coastal High Hazard Area is included within the coastal area as defined by the County.
CME Objective 1.8 is inadequate to serve the purpose of directing population concentrations away from Coastal High-Hazard Areas because it allows development to continue to occur so long as the levels of service standards are met or exceeded. There is no threshold cap for development or redevelopment. Based on the densities established in the FLUE, population concentrations are being directed toward the Coastal High-Hazard Area.
Santa Rosa Island Sub-element Policy 1.4.5 establishes land use densities and intensities for Pensacola Beach. The land use designations of high density residential, high density residential/commercial and commercial are allowed within the Coastal High-Hazard Area of Pensacola Beach. Based on these designations, development of up to thirty (30) units per acre is allowed. High density residential allows multi-family development in the range of sixteen to thirty units per acre; high density residential allows a range of sixteen to thirty units per acre for residential uses or up to fifty units an acre with a special exception; commercial hotel allows the same densities as is allowed under high density residential/commercial.
The densities established in Santa Rosa Sub-element Policy 1.4.5 represent an increase in development based on what is currently developed on Pensacola Beach in the Coastal High-Hazard Area. The plan encourages more development in the Coastal High-Hazard Area of Pensacola Beach.
Santa Rosa Island Sub-element Policy 1.4.8 similarly allows an increase in density in the Coastal High-Hazard Area in Navarre Beach from what is existing there currently. The high density residential designation allows up to thirty dwelling units per acre and the commercial designation allows up to thirty units an acre or fifty units an acre with a special exception.
Perdido Key lies entirely within the Coastal High-Hazard Area; however the designation for Perdido Key based on the Future Land Use Map is Mixed Use. Future Land Use Element Policy 3.1.5 allows Mixed Use to be developed between sixteen to fifteen dwelling units per acre and an unspecified mix of commercial which may cover up to eighty percent of the lot with impervious surface. The densities and intensities established for Perdido Key do not serve the purpose of directing population concentrations away from the Coastal High-Hazard Area; rather more development is encouraged to occur there.
The plan's hurricane evacuation planning is based on the Tri-state Hurricane Evacuation Study and the Escambia County Peacetime Emergency Plan which are referenced in the data and analysis as sources.
No data is available which isolates the evacuation time for just the unincorporated portion of Escambia County. However, it is estimated that the evacuation time for the entire County is approximately 14.25 hours. This is based on a medium response curve for a Category III hurricane event.
CME Objective 2.1 states that the County will maintain a roadway clearance time for hurricane evacuation of twelve hours. This clearance standard is not met currently.
No data and analysis have been provided to support the densities on the coastal barrier islands in relation to maintaining or improving hurricane evacuation times. Furthermore, the data and analysis do not indicate that the current clearance time to maintain is only 12 hours. Thus, the coastal area population densities have not been coordinated with the appropriate regional hurricane plan, the Tri-State Study, and there is no assurance of maintaining or improving the hurricane evacuation time.
CME Objective 2.5 states that the County will adopt a post-disaster redevelopment plan for Escambia County that identifies short-term recovery and long-term redevelopment activities. This objective is inadequate because it does not identify any specific and measurable criteria.
CME Policy 2.6.3.b., an implementing policy of CME Objective 2.5, reads:
By 1992, incorporate in the Santa Rosa Island land development regulations, the following build-back policy, to be applied after a major natural disaster such as a hurricane . . .
B. Structures damaged more than fifty percent of their replacement cost at the time of damage
can be re-built to their original square footage and density, provided they can comply with:
*Federal requirements for elevation above the 100-year flood level.
*Building code requirements for floodproofing.
*Current building and life safety codes.
*State Coastal Construction Control Line.
*Any required zoning or other development regulations (other than density or intensity), unless compliance with such regulations would preclude reconstruction otherwise intended by the build-back policy.
*Any other relevant federal regulations.
*Any other relevant local regulations, including lease agreements.
*Any other relevant state regulations.
CME Policy 2.6.3.b., allows structures damaged more than fifty percent to be rebuilt to their original square footage and density. Thus, this policy does not require redevelopment following disaster which will reduce or eliminate the exposure of human life in public and private property to future natural hazards.
COASTAL MANAGEMENT
The CME is required to include an objective that, following adoption of the plan, limits public expenditures to subsidize development permitted in Coastal High-Hazard Areas except for restoration or enhancement of natural resources. The CME is also required to include a policy designating Coastal High-Hazard Areas, limiting development in these areas, and relocating or replacing infrastructure away from these areas.
The CME does not contain any objective or policy that adequately limits development of public expenditures subsidizing development in a Coastal High-Hazard Area.
CME Policy 2.4.2 allows the development of public facilities in the Coastal High-Hazard Area provided that certain criteria are met. That policy reads:
Public facilities shall not be located or improved in the Coastal High-Hazard Area unless the following criteria are met:
the use is necessary to protect human life;
the service provided by the facility cannot be provided at another location outside the Coastal High-Hazard Area;
no alternate site is identified outside the Coastal High-Hazard Area;
the facility is designed to provide the minimum capacity necessary to meet level of service standards for its service area;
the total cost to build the facility to meet the Coastal Building Codes including floodproofing requirements does not increase the cost of the project beyond feasibility.
CME Policy 2.4.2 does not limit the extension of facilities which subsidize development in the Coastal High-Hazard Area. The level of service will be the minimum criteria for the applicable land uses. As described above, the land uses tend to encourage development towards the Coastal High Hazard Area. Development may continue provided the level of service standards are met.
CME Policy 2.1.10 states that the County will not allow the extension of water, sewer or storm drainage infrastructure to facilitate new permanent residential structures within the Coastal High-Hazard Areas of Escambia County for which the County has permitting authority unless state permits are first obtained. This policy does not limit the extension of facilities that subsidize development in the Coastal High-Hazard Area in the event that state permits are
first obtained. No state permits have been identified which would independently have the effect of limiting development in the entire Coastal High-Hazard Area or relocating or replacing infrastructure away from this area.
VESTED RIGHTS
Policies 1.4.2, 1.4.3, 1.4.4 and 1.4.6 of the Santa Rosa Island Future Land Use Sub-element provide that leased property on Santa Rosa Island is exempt from the plan and land development regulations.
FINANCIAL FEASIBILITY
The comprehensive plan is required to contain a Schedule of Capital Improvements for which the local government has fiscal responsibility for the first five fiscal years following adoption of the plan and a list of projected costs and revenue sources by type of public facility for the five-year period. The Capital Improvements Element (CIE) is required to set forth a financially feasible plan which demonstrates that the local government can achieve and maintain the adopted level of service standards.
The Schedule of Capital Improvements includes the expenditure of
$9,400,000 for a Master Drainage Study and Facilities for the fiscal years 1990-
91 through 1994-95. The data and analysis identifies and recommends impact fees as the revenue source to fund the Master Drainage Study and Facilities.
The County has not adopted an impact fee for drainage or stormwater management, or even for the study. In May 1991, the Board of County Commissioners considered alternative methods of funding for stormwater management. The Board of County Commissioners rejected the implementation of a municipal service benefit unit for stormwater. Instead, the Board of County Commissioners adopted the alternative of development and implementation of a stormwater utility fee which requires approval of the voters at a referendum.
At the time of plan adoption and the time of the hearing, the referendum had not taken place. There is no guarantee that the voters will approve the referendum. Therefore, it cannot be said that the Master Drainage Study and Facilities will be funded through fiscal year 1994-95.
CIE Policy 1.4.1 states:
Existing and future development, including those on Santa Rosa Island, directly benefiting from stormwater management improvements shall bear a proportionate cost of stormwater facility capital improvements. Further, the Board of County Commissioners shall consider, and implement as it deems necessary, impact fees for other public facilities.
CIE Policy 1.5.1 states:
The Board of County Commissioners shall develop and implement any alternative revenue sources needed to properly fund the Capital Improvements Element which could include, but
not be limited to, property taxes, special assessments and other forms of revenue raising measures.
Neither Capital Improvements Element Policy 1.4.1 nor Policy 1.5.1 establishes the impact fees necessary to fund the Drainage Study and Facilities or identifies viable revenue sources. Therefore, the Master Drainage Study and Facilities, identified in the Schedule of Capital Improvements, is not funded and is not financially feasible.
XII CONCURRENCY MANAGEMENT
Minimum requirements for a Concurrency Management System mandate that the system ensure that facilities and services needed to support development are available concurrent with the impacts of such development. Prior to the issuance of a development order or development permit, the Concurrency Management System must ensure that the adopted level of services standards required by roads, potable water, sanitary sewer, solid waste, drainage, parks and recreation and mass transit, if applicable, will be maintained.
The Concurrency Management System contained in the Capital Improvements Element of the plan provides that facility capacity may be determined or counted as existing capacity, provided facilities were in the procurement cycle or if there is a binding executed contract for construction of the facility. This provision is overly broad and, hence, inadequate to meet rule requirements.
The minimum requirements for concurrency are not uniform in every respect for the various types of public services and facilities needed to support development. For parks and recreations, the local government may satisfy the concurrency requirements through a binding executed contract which provides for a commencement of the actual construction of the required facilities or the provision of services within one (1) year of the issuance of the development permit in addition to other criteria. However, rule requirements in Chapter 9J-5, F.A.C., do not permit use of a binding executed contract to ensure concurrency for potable water, sewer, solid waste, and drainage facilities.
The Concurrency Management System provides, on page 11-xi of the plan, that facility capacity may be counted if "the new facilities are guaranteed in an enforceable development agreement and is consistent with the Capital Improvements Element of the Comprehensive Plan." This is contrary to the requirements of Rule 9J- 5.0055(2)(a)(4), F.A.C., which contains minimum criteria for meeting concurrency through an enforceable development agreement. Those minimum criteria, which include the provisions of Rules 9J-5.0055(2)(a)1.- 3., F.A.C., are not recited in any provision of the Concurrency Management System or the Capital Improvements Element.
The Concurrency Management System does not establish guidelines for interpreting and applying level of service standards to applications for development orders and permits and for determining when the test for concurrency has been met. The Concurrency Management System also does not contain guidelines for measuring the level of service and capacity of public facilities.
Santa Rosa Island Future Land Use Sub-element Policy 1.1.3 indicates that the Concurrency Management System does not apply to Pensacola Beach. That policy reads: "By May 1991, the County shall adopt a Concurrency Management
System in coordination with the Santa Rosa Island Authority to implement the Level of Service Standards of the Escambia County Comprehensive Plan as applicable to the Pensacola Beach."
Santa Rosa Island Future Land Use Sub-element Policy 1.1.1 states:
Development orders and/or permits for future development and redevelopment activities on Santa Rosa Island shall be issued only if public facilities necessary to meet level of service standards, adopted as a part of the Capital Improvements Element of the Escambia County Comprehensive Plan, are available concurrent with the impacts of development or are guaranteed in an enforceable development agreement pursuant to Section 163, F.S. and Rule 9J-5.0055, F.A.C., or an agreement or development order pursuant to Chapter 380, F.S.
Santa Rosa Sub-element Policy 1.1.1 does not contain a provision that the necessary facilities and services will be in place when the development of impacts occur or, in lieu thereof, that the agreement must include the provisions of Rules 9J-5.0055(2)(a)1.-3., F.A.C.
The Pensacola Beach Concurrency Management System was not adopted in the plan. Thus, the plan does not establish countywide concurrency.
Santa Rosa Sub-element Policy 1.1.3 also is insufficient as it defers implementation of adoption of a concurrency management system until May 1991. The Concurrency Management System must be in place at the time of plan adoption.
The Concurrency Management System does not clearly indicate the latest point in the application process for the determination of concurrency. The Concurrency Management System must indicate at what point in the application process final approval of a specific plan for development occurs and that this be prior to the determination of concurrency. The Concurrency Management System indicates that this point is the "final sign-off", however, that term is not defined and its meaning is opaque.
LEVEL OF SERVICE STANDARDS
Each local government is required to establish level of service standards for ensuring that adequate facility capacity will be provided for future development and for purposes of issuing development orders or permits pursuant to Section 163.3202(2)(g), Florida Statutes. The level of service standards must be set for each individual facility or facility type within the local government jurisdiction and not on a system-wide basis.
The purpose of the sanitary sewer, solid waste, drainage, potable water and natural groundwater aquifer recharge element is to provide for necessary public facilities and services correlated to future land use projections.
The sanitary sewer, solid waste, drainage, potable water and natural groundwater aquifer recharge element of the plan must contain policies which address implementation activities for establishing and utilizing level of service standards in accordance with rule requirements.
The County has not adopted a level of service standard for drainage which will be applied to all development.
Drainage Sub-element Policy 2.1.3 states:
The level of service standard for stormwater water quality shall be the minimum Florida Department of Environmental Regulation Standards, Section 17-25.040(5), Florida Administrative Code. Single-family dwellings not part of a larger development will be exempt from the level of service requirements.
As discussed above under Protection of Natural Resources, Section 17- 25.040, F.A.C., does not apply to new facilities. Thus, the County has not adopted a drainage level of service standard for existing facilities, as it must.
Drainage Sub-element Policy 2.1.3 is also insufficient because it has not removed other exemptions included in Chapter 17-25.030, F.A.C.,: the single family, duplex, triplex and quadraplex exemption. This policy specifically exempts single-family dwellings not part of a larger development from the level of service standard, but is silent as to the other exemptions of Chapter 17-25,
F.A.C. No such exemptions from the drainage level of service standards is authorized by Rule 9J-5, F.A.C.
Santa Rosa Sub-element Policy 1.1.2 states in pertinent part: "Development approval is conditioned upon, but not limited to a determination of whether the following level of service standard can be met: (1) the post- development peak rate of stormwater discharge will not exceed the pre- development peak rate based upon the 25-year stormwater event of critical duration . . ." This level of service standard is inadequate because it ignores such critical factors as water quality.
The Traffic Circulation Element (TCE) is required to include a policy establishing level of service standards at peak hours for all roads located within the government's jurisdiction. Subsection 9J-5.005(3) and subparagraph 9J-5.015(3)(b)3., F.A.C.
A portion of SR 30/Pensacola Bay Bridge lies within the boundaries of unincorporated Escambia County. The Pensacola Bay Bridge starts in the City of Pensacola and terminates in Gulf Breeze, Santa Rosa County. Between the starting point of the bridge on the Pensacola side and the County line, which is over the Pensacola Bay, a portion of the bridge lies within the jurisdiction of Escambia County.
The Department of Transportation General Highway Map, upon which the County-wide Future Land Use Map is drawn, depicts the County boundaries between Escambia County and Santa Rosa County. This map shows that Escambia County has jurisdiction over SR 30 between the City of Pensacola and midway between the mainland and Gulf Breeze. Approximately 1.5 miles of the bridge lies within the jurisdiction of the County.
According to the data and analysis, SR 30/Pensacola Bay Bridge currently is operating at a level of service "F". This level of service is applied in the plan. 2/
The TCE is required to include a policy which establishes level of service standards at peak hours for roads within the local government's jurisdiction. These standards must be consistent with Florida Department of Transportation's policies.
TCE Policy 1.1.1 adopts peak hour minimum acceptable operating level of service standards for County roads. The level of service standards for Transportation Planning Areas vary for various roadway types (freeways, principal arterials, minor arterials) depending on the area classification (existing urbanized, transitioning urban, rural). The policy also adopts a "deficient" level of service standard of "F" (existing) for the Pensacola Bay Bridge which it separately classifies as a Special Consideration (Backlogged Facility). The policy defines backlogged facilities as "roadways which do not meet the minimum acceptable level of service standards, are not in a Special Transportation Area, not constrained and are not scheduled for capacity improvement."
The Pensacola Bay Bridge is a principal arterial road. The recommended Florida Department of Transportation level of service for the bridge is "D". A level of service of "D" indicates a range of speed of 17 to 21 miles per hour. A level of service of "F' indicates a range of speed of 0 to 13 miles per hour.
The "F" standard cannot be violated because traffic may not be slowed below zero miles per hour. No specific measure of current operating conditions is provided to ensure the operating conditions will be maintained and improved. As long as existing bridge traffic exceeds 0 miles per hour, TCE Policy 1.1.1 allows the bridge road to continue to degrade. This is no standard at all.
Capital Improvements Element Policy 1.3.3 commits the County to certain level of service standards for various services and facilities, including traffic circulation. That policy states in pertinent part that capital improvement projects adopted by Escambia County shall maintain level of service standards as reflected in the policy's tables. A schedule of level of service for Traffic Circulation Facilities is included in the policy.
Capital Improvements Element Policy 1.3.3 establishes level of service standards for Special Transportation Areas, but does not establish specific level of service standards for Constrained Facilities and Backlogged Facilities. This policy commits to a level of service standard for Constrained Facilities for freeways, principal arterials, minor arterials, and others as "maintain." As to Backlogged Facilities, the policy commits to "maintain and improve" freeways, principal arterials, minor arterials, and others. As written, the level of service standards "maintain" and "maintain and improve" are not specific and measurable, are internally inconsistent with the specific level of service standards adopted in TCE Policy 1.1.1 (i.e., "C", "D"), and allow for future revision without undergoing the plan amendment process.
The Capital Improvements Element (CIE) is required to include a policy for each objective which establishes level of service standards for public facilities within the local government's jurisdiction. These standards are required to be those found in the other local government comprehensive plan elements.
The Drainage Sub-Element is required to include a policy addressing implementation activities for establishing and utilizing level of service standards for design storm return frequency for Drainage Facility Capacity. Drainage Sub-element Policy 2.1.3 adopts Rule 17-25.040(5), F.A.C., as the level of service standard for Stormwater Water Quality. That rule requires that facilities which directly discharge to Outstanding Florida Waters shall provide additional treatment as specified in Rule 17-25.025(9), which in turn requires an additional level of treatment equal to 50 percent more than the one-half inch requirement for sites less than 100 acres and one-inch of run-off from sites greater than 100 acres.
CIE Policy 1.3.3 includes a level of service standard for drainage facilities. The policy states in pertinent part that for projects with drainage areas greater than 100 acres which provide for retention, or detention with filtration facilities, the level of service standard shall be the first one inch of run-off from storm rainfall; for projects with drainage areas less than 100 acres which provide for retention, or detention with filtration facilities, the level of service standard shall be the first one-half inch of run-off from storm rainfall; and for drainage facilities which attenuate the 24-hour, 25-year storm event of critical duration the level of service standard requires that a drainage system allow for discharges equal to pre-development levels unless an engineering analysis using professionally accepted methodologies demonstrates that a differing discharge rate should be used. This policy is internally inconsistent with Drainage Sub-element Policy 2.1.3 because CIE Policy 1.3.3 does not provide for the additional level of treatment for stormwater discharge facilities which directly discharge to Outstanding Florida Waters.
CIE Policy 1.3.3 level of service standard for drainage facilities which attenuate the 24-hour, 25-year storm event of critical duration is not specific and measurable. This provision allows for the possibility of post- development run-off rate to exceed pre-development rates by allowing a different, presumably a higher, discharge rate to be used instead maintaining pre-development levels. There is no data and analysis to support an increase in discharge beyond pre-development levels.
The Coastal Management Element is required to include an objective establishing level of service standards, areas of service and phasing of infrastructure in the coastal area. While CME Policy 1.8.1 establishes coastal area levels of services for sanitary sewer, solid waste, drainage, potable water, and recreation and open space, it does not include a level of service standard for traffic circulation.
The primary sanitary sewer service provider in Escambia County is the Escambia County Utilities Authority. The data and analysis shows the existing level of service for sanitary sewer to range between 61.5 and 176 gallons per capita per day for wastewater treatment facilities owned by Escambia County Utilities Authority. For example, the Avondale facility has an existing level of service of 61.5 gallons per capita per day, the Mainstreet facility has an existing level of service of 99.8 gallons per capita per day, and the Navarre Beach Facility has an existing level of service of 176 gallons per capita per day.
Sanitary Sewer Sub-element Policy 1.2.1 states:
Escambia County hereby adopts 75 gallons per capita per day as level of service standard for the provision of sanitary sewer facilities
in the Escambia County Utilities Authority service area, and 60 gallons per capita per day for all privately-owned wastewater treatment facilities.
Sanitary Sewer Sub-element Policy 1.2.3 states: "The County, through a Certificate of Availability, shall verify the capacity of public sewer systems prior to issuing development permits to ensure that adequate capacity to meet level of service standards (which is 100 gallons per capita per day) is available." The 100 gallons per capita per day level of service referenced in this policy is inconsistent with Sanitary Sewer Sub-element Policy 1.2.1 which adopts a level of service of 75 gallons per capita per day for Escambia County Utilities Authority Facilities and 60 gallons per capita per day for all privately-owned wastewater treatment facilities. This internal inconsistency creates confusion as to which level of service standard is in fact being adopted and will be used for the issuance of development orders.
The County is responsible for the disposal of all solid waste within its jurisdiction through the County's Department of Solid Waste. The level of service is established in Solid Waste Sub-element Policy 1.1.1 which states: "The County will provide the capacity to dispose of 7 pounds of solid waste per capita per day."
Table 11 of the Solid Waste Sub-element Data and Analysis shows the projected generation of solid waste for the County from the year 1986 through the year 2000.
Table 11 Projected Generation for Escambia County
Year County Population Annual Tonnage lbs/capita/day
1986 | 230,250 | 309,000 | 7.4 |
1990 | 255,552 | 324,450 | 7.0 |
1995 | 274,520 | 340,670 | 6.8 |
2000 | 289,368 | 357,700 | 6.8 |
There is no data and analysis which relates the actual capacity of the landfill with the need projections of Table 11. Hence, the data and analysis fails to adequately support Solid Waste Sub-element Policy 1.1.1 and the policy's assurance that the County will provide adequate land-fill space.
Potable Water Sub-element Policy 1.1.1 adopts two levels of service standards for the provision of potable water: Escambia County Utilities Authority - 75 gallons per capita per day and all other service providers - 100 gallons per capita per day.
Escambia County is served by 10 public water supply systems, none of which are operated by the County. The largest public water supply system is operated by Escambia County Utilities Authority which has an existing level of service of 157.3 gallons per capita per day in Zone 2 and 101.6 gallons per capita per day in Zone 1. Table 12 of the Potable Water Sub-element Data and Analysis shows water system demand and plant facilities for 15 facilities, including facilities operated by private owners, the Town of Century, the Special District of Escambia Utilities Authority, and the Federal Government, Santa Rosa County, and the State of Florida. Nine of the facilities not operated by Escambia Utilities Authority are below 100 gallons per capita per day.
The data and analysis do not adequately support Potable Water Sub- element Policy 1.1.1 and the aim of the policy to ensure that service providers currently providing less than 100 gallons per capita per day be able to meet that level in the event of future demand.
AFFORDABLE HOUSING
The Housing Element of the plan is required to contain an objective providing adequate sites for housing for low and moderate income families, and for mobile homes.
The Housing Element's data and analysis concludes that affordable housing for persons in the very low, low and moderate income ranges should not exceed 30 percent of family income. By 1987 standards, these family income limits translate into less than $13,151 for very low income families and between
$13,152 and $21,040 for low/moderate income families. The data and analysis does not state what the demand for new affordable housing construction will be through the planning period.
Housing Element Objective 1.2 states: "Based on existing available resources provide for the rehabilitation of a minimum of 90 substandard homes and 10 new affordable housing sites annually." This objective is not quantitatively supported by the data and analysis and fails to describe the types of housing that will be constructed at the sites, i.e., single family dwellings, multi-family dwellings, or apartment buildings.
The Housing Element is required to include a policy for each objective which addresses implementation activities for the improvement in the regulatory and permitting processes, if deemed necessary by the local government.
Housing Element Policy 1.1.4 states:
Develop a permit review process (that will include a checklist and flow chart) that will take into consideration the following aspects in order to expedite and help facilitate affordable housing projects:
Fast track permitting process which will provide for concurrent review of all permits;
Waiving or use of weighted permit fees; and
Waiving or use of weighted County imposed impact fees.
Although the need to improve the regulatory and permitting processes is identified, there is no assurance that the methods to expedite affordable housing projects outlined in Housing Element Policy 1.1.4 will be implemented because the policy merely states that those methods will be taken "into consideration." The policy is subject to interpretation and may or may not be implemented despite the identified need to expedite affordable housing projects.
CONSISTENCY WITH THE STATE COMPREHENSIVE PLAN
For the reasons set forth below, the plan is inconsistent with the state plan, construced as a whole.
The plan is not consistent with and fails to further State Comprehensive Plan Goal 5(a) relating to housing, which states:
The public and private sectors shall increase the affordability and availability of housing for low- income and moderate-income persons, including citizens in rural areas, while at the same time encouraging self-sufficiency of the individual and assuring environmental and
structural quality and cost-effective operations.
The vagueness of Objective 1.2 of the plan's housing element fails to further this goal or policy 3 of this state goal, which relates to increasing housing availability for low and moderate income persons and elder persons. Policy 4 of this goal addresses reduction of housing costs through elimination of unnecessary regulation which adds to the cost of housing. The plan's lack of specific implementing actions that will be taken with regard to this policy establishes that the plan is not consistent with and does not further this state goal.
Densities and intensities of land use in the plan which increase runoff and inadequacies of level of service for drainage facilities make the plan inconsistent with state goal 8(a) relating to water resources and the need to assure availability of water quantity for reasonable and beneficial uses while maintaining the present level of surface and ground water quality. These inadequacies of the plan also fail to further policy 8(b)2 of the state goal requiring the identification and protection of water recharge areas. The plan also fails to further state policy 8(b)5 of this goal since the plan does not ensure that new development will be compatible with existing local and regional water supplies. The distribution pattern and intensities and densities of land use and the plan's inadequate approach to existing and future deficiencies of drainage issues also prevent the plan from being consistent with state policies 8(b)8-13, which seek to encourage development of floodplain management; preserve hydrologically significant wetlands and other natural floodplain features; support the protection of aquifers from depletion and contamination; protect surface and groundwater quality and quantity; promote water conservation; provide for elimination of discharge of inadequately treated wastewater and stormwater runoff into the waters of the state; and support alternative methods of wastewater treatment, disposal, and reuse to reduce degradation of water resources.
The plan fails to further and is not consistent with state goal 9(a) which provides:
Florida shall ensure that development and marine resource use and beach access improvements in coastal areas do not endanger public safety or important natural resources. Florida shall, through acquisition and access improvements, make available to the state's population additional beaches and marine environment, consistent with sound environmental planning.
Policies of this goal include: Policy 1 which seeks the acceleration of public beach acquisition; policy 2 which ensures public beach access; policy 3 which emphasizes the importance of avoiding expenditure of funds to subsidize
development of coastal high hazard areas; policy 4 which protects coastal resources, marine resources and dune systems from the adverse effects of development; policy 5 which seeks development of a planning system ensuring the continued attractive image of coastal areas; policy 6 which requires compatibility of land and water uses with protection of sensitive coastal resources; policy 7 which requires protection and restoration of productivity of fisheries and habitat; and policy 9 which prohibits development of other activities which disturb dune systems. The plan is not consistent with either the goal or policies 1-7 and 9 due to the plan's inadequacies with regard to preservation or conservation of coastal resources; density and development patterns along the coastal area; level of proposed development; and the failure of land uses on the future land use map to be compatible with sensitive coastal resource protection.
The plan is inconsistent with and does not further state goal 10(a) which requires the protection of unique natural habitats and ecological systems such as wetlands and various vegetative species, as well as restoring degraded natural systems to a functional condition. Deficiencies within the plan's objective and policies, as well as the failure to depict wetlands and floodplains on an adopted FLUM, prevent a finding that policy 1 of the goal, regarding conservation of forests, wetlands, fish, marine life, and wildlife, is consistent with or furthered by the plan's objectives and policies.
Other policies of this goal where objectives, goals and policies of the plan fail to establish specific implementing actions necessary to a finding of consistency with the state plan include: Policy 2 regarding the acquiring, retaining, managing, and inventory of public lands to provide recreation, conservation, and other public benefits; policy 3 relating to prohibition and destruction of endangered species and protection for their habitats; policy 4 relating to establishment of an integrated regulatory program to assure the survival of endangered and threatened species within the state; policy 5 relating to the promotion of agricultural practices compatible with protection of wildlife and natural systems, which is specifically not supported by the plan's relatively high residential densities in some agricultural areas of 1-5 units per acre; policy 6 relating to maximizing use of forest resources where again the plan's densities and distribution of those densities on the land use map prevent consistency; policy 7 relating to protection and restoration of the ecological functions of wetland systems; policy 9 relating to an acquisition program to ensure the integrity of Florida's river systems, which is unsupported by any provision of the plan to establish such a county program; policy 10 relating to acquisition and maintenance of ecologically intact systems in all land and water planning, management, and regulation; and policy 11 relating to state and local efforts to provide recreational opportunities to urban areas, including the development of activity-based parks.
The plan is inconsistent with and does not further state goal 16(a), which states:
In recognition of the importance of preserving the natural resources and enhancing the quality of life of the state, development shall be directed to those areas which have in place,
or have agreements to provide, the land and water resources, fiscal abilities, and service capacity to accommodate growth in an environmentally acceptable manner.
Likewise the plan is inconsistent with and fails to further policy 2 of state goal 16(a), relating to development of incentives and disincentives to encourage separation of urban and rural land uses while protecting water supplies, resource development, and fish and wildlife habitats. The failure to further this policy highlights the fundamental shortcoming of the plan as to densities and intensities and distribution of those uses.
Policies 4 and 6 of state goal 16(a) are not furthered by and are inconsistent with the plan. Policy 4 provides for development of a system of intergovernmental negotiation for siting locally unpopular public and private land uses, but the plan does not provide how the county will address this subject. Policy 6 requires consideration, in land use planning and regulation, of the impact of land use on water quality and quantity; the availability of land, water, and other natural resources to meet demands; and the potential for flooding. The distribution of land uses shown on the future land map and the lack of adequate policies prevent the plan from furthering this policy.
Goal 20 of the State Plan relates to transportation and provides:
Florida shall direct future transportation improvements to aid in the management of growth and shall have a state transportation system that integrates highway, air, mass transit, and other transportation modes.
The plan does not address coordination between land uses and the transportation system. Therefore this goal is not furthered by the plan.
Policy 3 of Goal 20 relates to promotion of a comprehensive transportation planning process coordinating state, regional, and local transportation plans. The plan adopts a level of service "F" for the Pensacola Bay Bridge which designation fails to provide any point at which development orders should be denied. This adopted level of service permits unlimited degradation and therefore does not further and is not consistent with the state plan.
Policy 12 of Goal 20 of the state plan requires local governments to eschew transportation improvements which encourage increased development in coastal high-hazard areas or in environmentally sensitive areas such as wetlands, floodways, or productive marine areas. The high densities of use provided in the plan for coastal areas will inevitably cause demand for improved transportation systems in these areas and consequently fail to further this policy.
The requirement of policy 13 of goal 20 to coordinate transportation improvements with state, local, and regional plans is not furthered by a level of service designation in the plan, such as the one for Pensacola Bay Bridge, which does not ensure that improvements can be coordinated. A level of service designation such as that accorded the bridge permits complete degradation without necessarily requiring coordination for expansion of the facility.
The plan fails to address, and thus does not further, Policy 14 of goal 20, addressing acquisition of advanced rights-of-way for transportation projects in designated transportation corridors consistent with state, regional, and local plans.
Policy 15 of goal 20, relating to promotion of effective coordination among various modes of transportation in urban areas to assist urban development and redevelopment efforts, is not addressed or furthered by the plan.
The plan is not consistent with and does not further transportation goals and policies of the state comprehensive plan.
The lack of adequate policies and high density of residential use in agricultural areas in the plan prevent the plan from furthering goal 23 of the state comprehensive plan, which reads as follows:
Florida shall maintain and strive to expand
its food, agriculture, ornamental horticulture, agriculture, forestry, and related industries in order to be a healthy and competitive force in the national and international marketplace.
Goal 26 of the state comprehensive plan reads as follows:
Systematic planning capabilities shall be integrated into all levels of government in Florida, with particular emphasis on improving intergovernmental coordination and maximizing citizen involvement.
Policy 4 of Goal 26 relating to the need to simplify, streamline, and make more predictable the existing permitting procedures, is not furthered or consistent with plan as a result of the plan's failure to adequately define what would be done to simplify the regulatory process.
CONSISTENCY WITH THE REGIONAL POLICY PLAN
The plan is inconsistent with the West Florida Regional Policy Plan (the regional plan), construed as a whole, for the reasons listed below.
The vagueness of Housing Element objective 1.2 with regard to provision of 10 new housing sites is inconsistent with Regional Goal 2 of Regional Issue 19, related to housing, contained in the regional plan. The plan fails to further that goal, which provides:
By 1990, affordable, safe and sanitary housing for low and moderate income households and the elderly population which will increase by 10% over 1985 levels.
The failure of the plan to address Goal 3 of Regional Issue 19 contained in the regional plan with regard to elimination of housing discriminatory practices is a significant inconsistency with the regional plan.
The failure of the future land use map to identify existing and planned waterwells constitutes an inconsistency with goal 1 of regional issue 37 of the regional plan. That goal reads:
By 1995, Regional water supply authorities shall be established throughout the Region which shall adopt water supply plans that incorporate water conservation programs,
protection of water recharge areas and existing and future well sites, and identify vulnerable water supplies that local governments should regulate to limit development.
As a result of the failure of the plan to set out densities and intensities of land use which serve to protect natural resources, as well as deficiencies of the plan with regard to drainage facilities, the plan does not further regional goal 1 of regional issue number 38. That goal provides:
By 1995, the Region's potable aquifers shall be protected from depletion and contamination to ensure adequate quality of the Region's water resources to meet current and long-term needs for all reasonable-beneficial uses.
Inadequate protective policies within the plan are inconsistent with the regional plan. Some of those inadequacies include inadequate drainage level of service standards, allowance of septic tanks in unsuitable areas, and high densities covering high aquifer recharge areas with impervious services. These plan policies are inconsistent with regional goal 1 of regional issue 39, Natural Systems Protection, which provides:
By 1995, 10 percent of regional natural water systems will be protected, maintained, and their natural processes restored.
The densities and intensities of use proposed by the plan for the barrier islands and in some of the coastal areas are very high and negatively impact resources of the land. This is particularly so with regard to densities and intensities of use established in Pensacola Beach, Navarre Beach and Perdido Key areas. The inadequacies of policies within the plan do not further goal 1 of issue 40 of the regional plan relating to protection of beach and dune systems. That goal reads:
By 1990, land use guidelines will be adopted which protect beach and dune systems.
Goal 1 of regional issue 41 is not furthered by provisions of the plan, specifically the lack of adequate level of service standards for drainage. This goal of the regional plan provides:
By 1990, land use and coastal zone planning will be coordinated with the protection and management of marine fisheries habitat.
Regional issue 43 of the regional plan addresses protection of natural resources. Goal 1 of that issue is not furthered due to the previously mentioned inadequacies of the plan, plus the lack of inclusion of a wetlands map and floodplains map as part of the adopted comprehensive plan.
This goal of the regional plan provides:
By 1990, state and local regulatory programs shall be designed to appropriately use and protect the Region's functioning natural systems.
Endangered and threatened species are addressed by issue 44 of the regional plan. Goal 1 of that issue provides:
By 1995, the number of native species in the Region on the official list of Endangered and Potentially Endangered Species of Fauna and Flora in Florida (FGFWFC) shall be reduced by
5 percent.
The lack of planning directives and controls upon development in the county by goals, objectives and policies of the plan, prevents a finding that the plan furthers this goal.
Regional issue 45 regarding the management of public and private land in a manner that permits continued functioning of natural systems is not furthered by the plan. Again, the densities and intensities of use established by the plan; the lack of control over development permitted by the plan; and specifically, the failure of the plan to include an adopted map of wetlands and floodplains establishes the plan's failure to further goal 1 of this issue.
That goal provides:
By 1990, public and private lands will be managed and land resources used according to comprehensive, economic and environmental principles, especially critical areas including, but not limited to coastal lands, wetlands, flood plains, margins of estuarine nursery areas, and locally important agricultural lands.
Regional issue 58, regarding natural resource preservation and coordination between potable water and wastewater treatment facilities and land uses with regard to aquifer protection, is not furthered by the plan in view of the plan's provisions which fail to discourage urban sprawl and, instead, permit urban development to spread and negatively impact natural systems. Goal 1 and goal 2, respectively, of this issue of the regional plan read as follows:
Regional goal 1
By the year 1991, local land use planning will be fully coordinated with planning for the provision of potable water and wastewater treatment and disposal.
Regional Goal 2
By the year 1991, each local government in the Region will use review procedures that consider cumulative impact of development on natural resources.
Neither of these goals is furthered by the plan.
Because level of service standards established in the plan's Capital Improvements Element (CIE) permit inadequate roadway level of service standards with regard to the Pensacola Bay Bridge and permit the change of such level of service standards simply by having a roadway definitionally reclassified, regional issue 63 and regional goal 1 of that issue are not furthered by the plan. Regional goal 1 of the issue reads:
By 1995, all modes of transportation planning will be integrated to efficiently, economically and safely accommodate transportation needs in the West Florida Region.
Regional issue 64 addresses transportation planning to aid growth management. Regional goal 1 of the issue provides that planned development patterns and land use permitting will conform and coordinate with existing or programmed state and local transportation systems by 1991. Regional goal 2 of this issue provides that land development codes will include an analysis of transportation impacts, provide for protection of transportation rights-of-way, and establish private sector sharing of the cost of transportation facilities by 1991. Inasmuch as traffic analysis under the plan appears based on historical projections, as opposed to the impacts of future land use permitted by the plan, the plan does not further this issue or goals 1 and 2.
Regional issue 69 of the regional plan and goals 1 through 4 of that issue are not furthered by the plan in view of the relatively high densities and intensities of residential use permitted in agricultural areas. Such usage for residential purposes does not ensure that agriculture will be protected.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter. Section 120.57(1) and 163.3184(10), Florida Statutes.
INTERVENTION AND STANDING
DCA was not requested by the County to attend its plan adoption public hearings. Accordingly, DCA was not barred by Section 163.3184(8), Florida Statutes, from determining the plan to be not in compliance and subsequently filing a petition with the Division of Administrative Hearings.
In order to participate in this proceeding, an intervenor must meet the definition of "affected person" set forth in Section 163.3184(1)(a), Florida Statutes, which, in relevant part, reads as follows:
"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; and adjoining local governments that can demonstrate that adoption of the plan as proposed would produce substantial impacts on the increased need for
publicly funded infrastructure or substantial impacts on areas designated for protection or special treatment within their jurisdiction.
The period in which an affected person must submit oral or written objections commences with the issuance of the Department's ORC report and ends with the adoption of the plan. In the instant case, this period of time commenced August 10, 1990, and ended October 8, 1990.
Section 163.3181(1), Florida Statutes, evidences the legislative intent "that the public participate in the comprehensive planning process to the fullest extent possible."
Section 1.01, Florida Statutes, defines the word "person" to include associations, joint adventures, partnerships, trusts, business trusts, syndicates, fiduciaries, corporations, and all other groups or combinations. It appears that a not-for-profit organization may be afforded status as an affected person within the meaning of Section 163.3184(1)(a), Florida Statutes.
The League and Audubon are such not-for-profit organizations. Both organizations have members residing in the county and their representatives submitted oral and written comments regarding the plan during the required time period, as did Dorothy Kaser and Vivian Faircloth.
Joseph and Anneice Grizzaffi, by virtue of addressing the Board of County Commissioners on August 23,1990, albeit formally impaneled as the Zoning Board, timely submitted oral comments during the local government review period and demonstrated that they are affected persons.
The following intervenors on behalf of Petitioner are found to have standing in this matter: The League, Audubon, Dorothy Kaser, Joseph and Anneice Grizzaffi, and Vivian Faircloth.
Neither James nor Jacqueline Lane submitted or made comments during the appropriate review period. Neither of these individuals have standing to participate as intervenors on behalf of Petitioner in this proceeding and are hereby dismissed as parties.
By stipulation of the parties, no objection is raised to standing of any of the Intervenors on behalf of Respondent. All of those Intervenor/Respondents are deemed to have met the requirements of Section 163.3184(1), Florida Statutes, and have standing in this case.
APPLYING 9J-5
In a noncompliance proceeding under Section 163.3184(10), the burden of proof is on DCA to show by a preponderance of the evidence that the Plan is not in compliance; provided, however, that the County's determination of internal consistency shall be sustained if the determination is fairly debatable. Section 163.3184(10)(a), Florida Statutes.
In the planning process under the Act, DCA, not the local government, determines initially whether the plan is in compliance. Section 163.3184(8)(a), Florida Statutes.
Chapter 9J-5, Florida Administrative Code, was adopted by DCA pursuant to Chapter 163, Part II, Florida Statutes, in order to provide guidance as to minimum requirements which plans must meet to be "in compliance". That term is defined in Section 163.3184(1)(b), Florida Statutes, and reads as follows:
In compliance means consistent with the requirements of ss. 163.3177, 163.3178 and 163.3191, the State Comprehensive Plan, the appropriate regional policy plan, and Rule 9J-5, F.A.C., where such rule is not inconsistent with Chapter 163, Part II.
Chapter 9J-5, F.A.C., includes minimum requirements for eleven mandatory elements (the Mass Transit Element and the Ports, Aviation, and Related Facilities Element apply to local governments with populations of 50,000 or more) including data and analysis; maps; and goals, objectives and policies. All goals, objectives and policies must be based upon "relevant and appropriate data." Rule 9J-5.005(2), F.A.C. The data and analysis are not required to be adopted. It is, however, the responsibility of the local government to provide all of the data and analysis to the Department in order to evaluate the plan.
Comprehensive plans must be internally consistent. The elements must be consistent with each other and each map depicting future conditions must be contained within the plan and reflect the goals, objectives and policies within all elements of the plan. Rule 9J-5.005(5), F.A..C.
A "goal" is a long term end toward which programs or activities are ultimately directed. Rule 9J-5.003(36), F.A.C.
An "objective" is more tangible than a goal and must indicate a specific, measurable, intermediate end that is achievable and marks progress toward a goal. Rule 9J-5.003(61), F.A.C.
A "policy" specifies the way in which specific programs or activities will be conducted to achieve an identified goal. Rule 9J-5.03(68), F.A.C.
Rule 9J-5.005(6) requires specificity in the language of plan provisions. Relevant case law indicates that all legislation adopted by local governments must contain reasonable standards that control the discretion of local government officials in order that those ordinances and other types of legislation not violate due process standards.
This doctrine is supported by the conclusion reached in a number of cases, including Drexel vs. City of Miami Beach, 64 So.2d 317 (Fla. 1953), where an ordinance was ruled invalid which restricted multiple level parking garages unless approved by the City Council after a public hearing where "due consideration shall be given to the effect upon traffic of the proposed use"; Effie, Inc. vs. City of Ocala, 438 So.2d 506, 507 (Fla. 5th DCA 1983), where the ordinance was ruled invalid because it said the local government, in deciding on applications for the sale of alcoholic beverages, would take into account "all other pertinent factors that may arise in connection with the particular application and location being considered"; City of Homestead vs. Schild, 227 So.2d 540, 542 (Fla. 3d DCA 1969), where the ordinance was ruled invalid because it said that the City Council had authority "in such cases as it deems necessary and essential to preserve and protect health, safety and welfare of the citizens of Homestead, to grant special use permits."
These cases stand for the proposition that vague and malleable language violates due process rights through delegation to officials of wide discretion, thereby creating a potential for arbitrary decisions.
Despite Respondents' argument to the contrary, land development regulations may not substitute for Chapter 9J-5 minimum requirements. If Chapter 9J-5 requires an element to include a certain type of policy or objective, then the required policy or objective itself must meet the minimum requirements without deferring identification of the measurable intermediate end or program until adoption of a land development regulation.
The plan's goals, objectives and policies aimed at meeting current requirements of the Act and Chapter 9J-5 cannot defer action to some future date, such as the adoption of land development regulations. Equally important, relegation to land development regulations of programs required by the Act and Chapter 9J-5 defeats the purpose of the law.
The stated intent of the legislature when it enacted the Local Government Comprehensive Planning and Land Development Regulation Act was, among other things, to encourage the most appropriate use of land, water and resources; to preserve, promote, protect, and improve law enforcement and fire prevention; and to "facilitate the adequate and efficient provision of transportation, water, sewerage, schools, parks, recreational facilities, and other requirements and services". Section 163.3161(3), Florida Statutes.
Coordination of a local comprehensive plan with the comprehensive plan of the applicable region is "a major objective of the local comprehensive planning process." Section 163.3177(4)(a), Florida Statutes.
In this regard, a local plan or plan amendment is consistent with the regional and state plans if it "is 'compatible with' and 'furthers' such plans." Section 163.3177(10)(a), Florida Statutes.
The term "compatible with" means that the local plan is not in conflict with the State Comprehensive Plan or appropriate regional policy plan. The term "furthers" means to take action in the direction of realizing goals or policies of the state or regional plan. In order to determine consistency of the plan with the State Comprehensive Plan, or the regional plan, "the state or regional plan shall be construed as a whole and no specific goal and policy shall be construed or applied in isolation from the other goals and policies in the plan." Section 163.3177(10)(a), Florida Statutes.
Section 163.3177(6)(a), Florida Statutes, requires that a future land use plan "be based upon surveys, studies, and data regarding the area, including the amount of land required to accommodate anticipated growth; the projected population of the area; the character of undeveloped land; the availability of public services; and the need for redevelopment, including the renewal of blighted areas and the elimination of non-conforming uses which are inconsistent with the character of the community." See also, Rule 9J-5.006, F.A.C.
All goals, objectives, policies, standards, findings and conclusions within the comprehensive plan and its support documents must be based upon relevant and appropriate data. A designation on a Future Land Use Map also falls within this requirement. Rules 9J-5.005(2)(a), 9J-5.006(2), F.A.C.
The data used by the local government to support the comprehensive plan or plan amendments must be the best available existing data, unless the local government desires original data or special studies. Where data augmentation, updates or special studies or surveys are deemed necessary by the local government, appropriate methodologies must be clearly described or referenced and shall meet professionally accepted standards for such methodologies. Rule 9J-5.005(2)(c), F.A.C.
The plan must be supported by the data and analysis, and DCA may evaluate whether a particular methodology used in data collection is professionally accepted. Section 163.3177(10)(e), Florida Statutes.
EFFICIENCY OF LAND USE AND THE FUTURE LAND USE MAP
As discussed in factual findings above, the plan does not discourage the proliferation of urban sprawl and is not based on data and analysis.
The Future Land Use Map is the mechanism for establishing the distribution, location and extent of the various proposed land uses. The land use determinations on the map are to be "supplemented by goals, measurable objectives and policies" in the plan. Section 163.3177(6)(a), Florida Statutes. Thus, according to the statute, it is the Future Land Use Map, not the goals, objectives and policies of a plan, which primarily determines the type and intensity of development that will occur on a given parcel of land.
The Future Land Use Map is a critical component of the Plan and a vital part of its operative provisions because it will govern all future land use decisions when the County receives requests for development orders. The map sets the course for future development and redevelopment in Escambia County.
See Austin et al. v. City of Cocoa ER FALR 89:0128 (Admin. Comm. 1989) (Rec. Order at 75) "The Future Land Use Map is a critical component of the plan. [It] provides an essential visible representation of the commitment to uphold local comprehensive plan goals, objectives and policies, as supported by appropriate data and analysis. . ." Id.
The following future land use categories, referenced in FLUE Policy 3.1.3, permit undefined special exceptions and consequently do not meet requirements of Rule 9J-5.006(3)(c)7., F.A.C. in that they do not establish densities or intensities of use: Agricultural Residential, Rural Residential/Mixed Use; Low Density Residential; and Urban Residential.
Similarly, the following mixed use future land use classifications do not establish the composition of various types of allowed uses and ensure the functional relationship of these uses: Mixed Use; Mixed Use-Southwestern District; Rural Residential-Mixed use; Pensacola Beach Medium Density Residential/Commercial; Pensacola Beach High Density Residential/Commercial; and Navarre Beach High Density Residential. Consequently, the plan does not ensure that development will result in a balanced and complimentary mixture of land uses. Rule 9J-5.006(3)(c)7. and Section 163.3177(6)(c), Florida Statutes.
The Mixed Use-Southwestern District's two residential land use categories are not sufficiently described. The distribution, extent and location of each of the two residential categories are not shown on the Future Land Use Map Series as required by Rule 9J-5.006(4)(c), F.A.C., and specific location criteria has not been included in the FLUE as required by Rule 9J- 5.006(3)(c)7., F.A.C.
Santa Rosa Sub-element policy 1.4.5 (10), the Conservation/Preservation category, contemplates a variety of uses in addition to conservation and preservation uses, but the County has not acknowledged it as a mixed use category and specified criteria for each type of allowed use. Rules 9J-5.006(3)(c)5., and 7., F.A.C.
The densities established in FLUE Policy 3.1.1 and FLUE Policy 3.1.9 for the Special Development/Buffer land use category are internally inconsistent. Rule 9J-5.005(a), F.A.C. No density of use is clearly established for the Special Development/Buffer category. Rule 9J- 5.006(3)(c)7., F.A.C.
As discussed above with regard to Santa Rosa Sub-element Policies
1.4.5 and 1.4.8, no densities or intensities of use have been established for the following future land use categories: Recreation; Pensacola Beach General Retail; Pensacola Beach Recreation Retail; Pensacola Beach Conservation/Recreation; Pensacola Beach Government and Civic; Pensacola Beach Tourist Resort; Navarre Beach High Density Residential; Navarre Beach Commercial; and Navarre Beach Recreation. Rule 9J-5.006(3)(c)7., F.A.C.
The Future Land Use Map series fails to depict known historic district boundaries and designated historically significant properties meriting protection as required by Rule 9J-5.006(4)(a)10., F.A.C. The Future Land Use Map series also fails to show the following natural resources as required by Rule 9J-5.006(4)(b), F.A.C.: existing and planned water wells; cones of influence; floodplains; wetlands; minerals and soils.
The Future Land Use Map series is internally inconsistent as relates to various land uses in Navarre Beach. The county-wide map shows only three future land use categories, but the Navarre Beach Map depicts seven. The locations of the land use categories are inconsistent between the two maps. The Future Land Use Map series as relates to Navarre Beach does not reflect policies within the elements as required by Rule 9J-5.005(5)(b), F.A.C. The adoption ordinance does not address these inconsistencies in an attempt to resolve them.
The "Commercial" designation on the Future land Use Map series adjacent to the City of Pensacola is not based on appropriate data and analysis. The data indicates this area includes single family, multi-family, recreation, public and industrial uses. No analysis has been provided which justifies the need for redevelopment or elimination or reduction of non-conforming uses as required by Rule 9J-5.006(2)(d)2., F.A.C.
PROTECTION OF NATURAL RESOURCES
The FLUE does not include an adequate specific, measurable objective which ensures the protection of the natural resources identified by the data and analysis. FLUE Objective 1.9 is not specific and measurable and supported by the data. Rule 9J-5.006(3)(b)4., F.A.C.
The FLUE does not include an adequate policy which protects environmentally sensitive lands as required by Rule 9J-5.006(3)(c)6., F.A.C. FLUE Policies 1.4.5-1.4.7, 1.9.1, 1.9.2 and 4.1.9 do not identify any specific actions or programs which would ensure the protection of environmentally sensitive lands identified by the data and analysis.
The Future Land Use Map series specifically depicts or allows development seaward of the coastal construction control line. The map series does not distinguish areas which have dune systems or coastal resources. By allowing development on dune systems and beach areas, the Future Land Use Map series is inconsistent with Rule 9J-5.012(3)(b)4., F.A.C. There is no superseding policy which would protect these beaches and dunes from development.
The CME does not include an adequate policy which identifies regulatory or management techniques limiting specific and cumulative impacts of development or redevelopment upon wetlands and living marine resources as required by Rule 9J-5.012(3)(c)1., F.A.C. CME Policy 1.3.7 is inadequate because it addresses only the limited impacts of stormwater runoff, fails to identify any specific actions or programs and defers addressing runoff until the advent of land development regulations rather than by plan policy. The target date for the land development regulations is 1993, which constitutes an unauthorized extension of the May 1, 1991, deadline for the county to adopt land development regulations. Section 163.3202(1), Florida Statutes.
CME Policy 1.1.6 is inadequate to fulfill this requirement because it defers addressing protection of these resources to the land development regulations rather than identify specific actions or programs in the policy itself. This policy will not even guide the later development of land development regulations because no criteria have been included in the policy for future implementation. This policy has no impact on protecting wetlands or other resources and provides no guidance for the issuance of development orders.
The CME does not include an objective which maintains or improves estuarine environmental quality as required by Rule 9J-5.012(3)(b)2., F.A.C. CME Objective 1.4 is inadequate to fulfill this requirement because it defers addressing protection of estuarine quality until the land development regulations rather than identify specific actions or programs in the policy. This policy will not even guide the development of land development regulations because it does not include any criteria. This policy provides no guidance for
the issuance of development orders and wholly fails to identify specific ways to maintain or improve estuarine environmental quality.
The CME fails to include a policy which identifies regulatory or management techniques limiting specific and cumulative impacts of development or redevelopment upon wildlife habitat as required by Rule 9J-5.012(3)(c)1., F.A.C. CME Policy 1.1.2 does not fulfill this requirement because it does not identify any specific programs or actions, defers addressing the issue until the land development regulations, and fails to provide any criteria for open space or cluster development or wildlife corridors. The CME provides nothing to limit impacts of development upon wildlife habitats except an empty promise to consider these concerns when the County gets around to revising its Special Development District Regulations.
The CE does not include an objective which conserves, appropriately uses and protects the quality and quantity of current and projected water sources and waters that flow into estuarine waters or oceanic water as required by Rule 9J-5.013(2)(b)2., F.A.C. CE Objective 1.1 is inadequate because it references DER standards which apply only to water quality and include several exemptions not authorized by Chapter 9J-5, F.A.C. In order to be adequate, the exemptions should have been removed and a water quantity standard also included.
The CE does not include an adequate policy which addresses implementation activities for the protection of water quality by restriction of activities known to adversely affect the quality and quantity of identified water sources as required by Rule 9J-5.013(2)(c)1., F.A.C. CE Policy 1.1.11 which implements CE Objective 1.1, is inadequate because it applies only to new development and does not identify specific surface water standards to be maintained.
The CE does not include a policy which addresses implementation activities for the restriction of activities known to adversely affect the survival of endangered and threatened wildlife as required by Rule 9J- 5.013(2)(c)5., F.A.C. CE Policy 1.8.3 is inadequate to fulfill this requirement because it does not establish specific criteria to protect endangered species' habitat and fails to address the habitats of threatened species. This policy also is contrary to the data and analysis which identifies endangered (and threatened) species and their habitats. There is no authorization to defer the protection of these species and their habitats until the results of a future study.
The CE fails to include a policy which addresses implementation activities to protect and conserve the natural functions of rivers, wildlife habitat, wetlands including estuarine marshes, freshwater beaches and shores, and marine habitats as required by Rule 9J-5.013(2)(c)5., F.A.C.
CE Policy 1.1.13 is inadequate to fulfill this requirement because it merely refers to a commitment to undertake a joint study to develop protective measures for inclusion in the land development regulations. This is insufficient because it defers implementation to protect known resources, fails to provide any specific criteria to guide the issuance of development orders, and relegates to land development regulations provisions that are required to be adopted in the plan.
COASTAL HIGH HAZARD AREAS/HURRICANE EVACUATION
The CME does not include an objective which directs population concentrations away from known or predicted coastal high-hazard areas as required by Rule 9J-5.012(3)(b)6., F.A.C. No provision of the CME overrides the land uses, densities and intensities of use established by the FLUE and Santa Rosa Sub-element for the coastal high hazard area. CME Objective 1.8 allows future development with the limited provision that levels of service be maintained or improved. The land uses, densities and intensities of use established for the coastal high-hazard area including areas in the mainland, Perdido Key, Pensacola Beach, and Navarre Beach reflect a pattern of increased residential development rather than a decrease. The plan is committed to increasing population concentrations in the coastal high hazard area and no CME objective seeks to prevent such a possibility from becoming a reality.
The CME does not include an objective which maintains or reduces hurricane evacuation times as required by Rule 9J-5.012(3)(b)7., F.A.C. CME Objective 2.1 commits to maintain an evacuation time of 12 hours. This objective is not based on the data and analysis which indicates that this evacuation time standard currently is not being met. The data and analysis indicates an evacuation time of 14.25 hours. No explanation is offered as to how the County's residents will be able to evacuate in 12 hours when they currently require 14.25 hours. CME Objective 2.1 is not supported by the data
and analysis and does not ensure that the evacuation time of 12 hours is achievable. The plan's commitment to increasing populations in the coastal high hazard area compounds this problem of evacuation time.
The CME does not include an objective which prepares post-disaster redevelopment plans which will reduce or eliminate the exposure of human life and public and private property to natural hazards, as required by Rule 9J- 5.012(3)(b)8., F.A.C.
Rule 9J-5.012(c)5., F.A.C., requires the CME include a policy which identifies regulatory or management techniques for post-disaster redevelopment including the removal, relocation, or structural modification of damaged infrastructure and unsafe structures and limiting development in areas of repeated damage. Rather than consider relocation of damaged structures, CME Policy 2.6.3.B. expressly allows redevelopment after natural disasters in the footprint of the previous structure. The CME objectives and policies do not curtail development or post-disaster redevelopment to eliminate harm to property or person.
COASTAL MANAGEMENT
The CME does not include an objective which limits public expenditures that subsidize development in coastal high-hazard areas as required by Rule 9J-5.012(3)(b)5., F.A.C. The CME also does not include a policy which limits development in coastal high-hazard areas and relocates or replaces infrastructure away from these areas as required by Rule 9J-5.012(3)(c)7.,
F.A.C. CME Policies 2.4.2 and 2.1.10 allow development to continue in the coastal high-hazard area, provided that the necessary facilities and services will be in place to accommodate the new development or redevelopment and that the necessary state permits are obtained. These policies do not limit development in the coastal high-hazard area; rather they specifically authorize more development and add no new requirements to the development process. Levels of service are not a new requirement, as they must be maintained in accordance with other portions of the plan implemented pursuant to Chapter 9J-5, F.A.C. Further, the applicable state permits, i.e., DER stormwater permits, DER wastewater treatment plant certifications, and DNR coastal construction control line approvals, must be issued prior to construction anyway.
VESTED RIGHTS/LEASES
It is axiomatic under Florida law that no governmental body, be it local or otherwise, may contract away its police powers. See Miami Bridge Co. v. Railroad Commission, 20 So.2d 356 (Fla. 1944); H. Miller & Sons v. Hawkins, 373 So.2d 913 (Fla. 1979). Miami Bridge Co. concerned the state's authority to exercise rate-making authority over a bridge constructed pursuant to an earlier adopted special act. The Supreme Court held that the legitimate exercise of the police power was not an impairment of contract and that "governmental powers cannot be contracted away, nor can the exercise of rights granted, nor the use of the property, be withdrawn from the implied liability to governmental regulations. The right to exercise the police power is a continuing one." 20 So.2d at 361.
In the absence of express legislative authority a local government has no power to grant a private individual a right to use public property for a special private purpose. See Smith v. Bus Stops of Greater Miami, Inc., 89 So.2d 221 (Fla. 1956).
Furthermore, a government which acts beyond its authority by purportedly entering into a contract not to exercise its police powers is not estopped from exercising that power later. Edwards v. Town of Lanta, 77 So.2d 245 (Fla. 1955).
The leases for property on Santa Rosa Island contain no provision specifically prohibiting Escambia County from exercising its police planning powers over the island. Even if such a provision were interpreted to exist in the leases, it would be void, cf. Edwards v. Town of Lantana, 77 So.2d 245, 246 (Fla. 1955), and inconsistent with the federal deed commanding that the property remain subject to ultimate County regulation.
The provisions in the plan related to Santa Rosa Island are clearly not based on data and analysis as required in Rule 9J-5.005(2), F.A.C. The plan provisions reflect accepting the densities mentioned in the leases as a given. This is also violative of Rule 9J-5.005(6), F.A.C., which requires plans be enforceable as provided in Section 163.3194, Florida Statutes. Since the plan effectively exempts leaseholds on the Island from operation of the plan, such enforcement is not possible.
FINANCIAL FEASIBILITY
The Master Drainage Study and Facilities identified in the Schedule for Capital Improvements lists expenditures totalling $9,400,000 for the fiscal years 1990-1991 through 1994-1995. This portion of the CIE is not financially feasible pursuant to Rule 9J-5.0055(1)(b), F.A.C., because it identified unapproved impact fees as its revenue source. It cannot be presumed that the referendum to approve the stormwater impact fee will be successful.
CONCURRENCY MANAGEMENT
The Concurrency Management System does not guarantee that the necessary facilities and services will be in place when the impacts of development occur. The Concurrency Management System allows a determination of facility capacity if these facilities are merely in the procurement cycle or if there is a binding executed contract for construction of the facility. These determinations are based on less assurances than are required by Rule 9J- 5.0055(2)(a), (b) and (c), F.A.C. The Concurrency Management System also allows concurrency determinations for all facilities that are the subject of a binding contract which provides for commencement of construction within one year of issuance of the development permit. Pursuant to Rule 9J-5.0055(2)(b), F.A.C., a binding executed contract cannot be used for potable water, sewer, solid waste, and drainage facilities, however.
As noted in finding of fact 164., the Concurrency Management System provision on page 11-xi of the plan, which allows facility capacity to be counted if the new facilities are in an enforceable development agreement and are consistent with the CIE, is inconsistent with Rules 9J- 5.0055(2)(a)4.,F.A.C., 9J-5.005(2)(a)1.-3., F.A.C. These rules contain minimum criteria for meeting concurrency through development agreement which criteria are not included in the Concurrency Management System.
The Concurrency Management System does not establish guidelines for interpreting and applying level of service standards to applications for development orders and permits and determining when the test for concurrency is met as required by Rule 9J-5.0055(2)(e), F.A.C. The Concurrency Management
System also fails to identify the latest point in the application process for determining concurrency, prior to approval of either a development order or a permit which contains a specific plan for development, as required by that rule.
Santa Rosa Policy 1.1.1 also fails to be consistent with Rules 9J- 5.0055(2)(a)1.-3. and 9J-5.0055(2)(a)1.-4., F.A.C., because it determines concurrency capacity based on the existence of a development agreement without the necessary minimum conditions.
The plan does not adopt a Concurrency Management System for the entire area under the County's jurisdiction. Santa Rosa Policy 1.1.3 indicates an attempt to have Pensacola Beach governed by a separate Concurrency Management System to be adopted later. This is inconsistent with Section 163.3171(2), Florida Statutes, which contemplates that a county will plan for its entire jurisdiction. No explanation is provided for the separate, later Pensacola Beach Concurrency Management System. If the County wished to adopt two separate Concurrency Management Systems for different portions of the County, it might do so but each must separately meet the requirements of Rule 9J-5.0055, F.A.C., be consistent with each other, and be in effect at the time of plan adoption.
Santa Rosa Policy and other provisions of the Sub-element do not provide any standards or criteria as required by Rule 9J-5.0055, F.A.C. Accordingly, a concurrency management system for Pensacola Beach which ensures that public facilities and services needed to support development are available concurrent with the impacts of development is wholly lacking in the plan.
LEVEL OF SERVICE STANDARDS
The plan does not adopt an adequate level of service standard for drainage facilities as required by Rules 9J- 5.0055(1)(a)4. and 9J- 5.011(2)(c)2., F.A.C. The drainage level of service standard adopted in Drainage Sub-element policy 2.1.3 applies only to new facilities and exempts single-family dwellings and arguably also duplexes, triplexes, and quadraplexes by adopting by reference Rule 25-24.040(5), F.A.C. However, Chapter 9J-5, F.A.C., does not allow any exemptions to level of service standards.
The level of service standard for drainage facilities which applies to Santa Rosa Island through Santa Rosa Sub-element Policy 1.1.2 is also insufficient. This policy is inadequate to establish a drainage level of service by itself because it wholly fails to address the water quality component of run-off. Thus, the plan's drainage level of service standard for Santa Rosa Island does not meet the requirements of Rule 9J-5.011(2)(c)2.c., F.A.C.
The traffic circulation level of service standard of "F" which was adopted in TCE Policy 1.1.1 for the portion of the Pensacola Bay Bridge which lies within the County's jurisdiction allows this road segment to continue to degrade instead of maintain or improve. This is inconsistent with the policies of the Florida Department of Transportation and Rules 9J-5.005(3) and 9J- 5.015(3)(b)3., F.A.C. CIE Policy 1.3.3 adopts level of service standards which include standards for constrained facilities and backlogged facilities. The standards for these two types of facilities, "maintain" or "maintain and improve" are not specific and measurable as are the level of service standards adopted in TCE Policy 1.1.1 for the same types of roads. The "maintain" and "maintain and improve" standards of CIE Policy 1.3.3 are internally inconsistent with TCE Policy 1.1.1's standards for the same types of roadways. These CIE Policy 1.3.3 standard are also potentially self-amending because they allow for
future "adjustment" without undergoing the plan review process. This is inconsistent with the requirements of Section 163.3184, Florida Statutes, which requires all plan amendments to go through the formal review process.
CIE Policy 1.3.3 and Drainage Sub-element Policy 2.1.3 are internally inconsistent. CIE Policy 1.3.3 does not provide for additional water quality assurances for Outstanding Florida Waters, as does Drainage Sub-element Policy
2.1.3 which requires additional levels of treatment for facilities which discharge directly into Outstanding Florida Waters. CIE Policy 1.3.3 also allows an increase in discharge beyond pre-development rates, an allowance not supported by any of the data and analysis as required by Rule 9J-5.005(2)(a), F.A.C.
The CME includes level of service standards for most of the facilities and services located in the coastal area as required by Rule 9J- 5.012(3)(b)11., F.A.C., with the exception of traffic circulation.
The public and private facility level of service standards for Sanitary Sewer Sub-element Policy 1.2.1 are internally inconsistent with the level of service standard referenced in Sanitary Sewer Sub-element Policy 1.2.3.
The level of service standard for solid waste adopted in Solid Waste Sub-element Policy 1.1.1 is not supported by data and analysis as required by Rule 9J-5.005(2)(a), F.A.C.
The level of service standard for potable water adopted in potable water supplement policy 1.1.1 is not supported by the data and analysis as required by Rule 9J-5.005(2)(a), F.A.C. The data and analysis confirm that some of the facilities were not meeting the adopted level of service standard. The data and analysis did not demonstrate how those facilities currently operating below the level of service standard would be able to achieve that standard (i.e., by expansion).
AFFORDABLE HOUSING
The data and analysis for the Housing Element does not support Housing Objective 1.2 which commits the County to 10 new affordable housing sites per year. The data and analysis does not state what the projected demand for affordable housing will be. Without an underlying estimate of need, it cannot be determined whether 10 new sites a year is adequate. This objective is not adequately supported by data and analysis as required by Rule 9J- 5.005(5)(2), F.A.C. and it cannot be found that the requirement of Rule 9J- 5.010(3)(b)3., F.A.C., to provide adequate low and moderate income housing, is met.
The requirement of Rule 9J-5.010(3)(c)2., F.A.C., to address implementation activities for the improvement in the regulatory and permitting process in a Housing Element policy has not been met. Housing Policy 1.1.4 does not affirmatively address and ensure any improvement because it is loosely written in such a way that its implementation is wholly at the discretion of the decision-making body.
CONSISTENCY WITH THE STATE COMPREHENSIVE PLAN
The Escambia County comprehensive plan is not consistent with, not compatible with, and does not further the State Comprehensive Plan construed as a whole. Sections 163.3177(10)(a), 163.3184(1)(b), Florida Statutes; Rule 9J- 5.021, F.A.C.
CONSISTENCY WITH THE REGIONAL COMPREHENSIVE PLAN
The Escambia County comprehensive plan is not consistent with, not compatible with, and does not further the West Florida Comprehensive Regional Policy Plan. Sections 163.3177(10)(a), 163.3184(1)(b), Florida Statutes; Rule 9J-5.021, F.A.C.
Based upon the foregoing findings and fact and conclusions of law, it is hereby recommended that a final order be entered finding that the Escambia county Comprehensive Plan is not in compliance.
RECOMMENDED this 19th day of February, 1992, in Tallahassee, Leon County, Florida.
DON W. DAVIS
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Fl 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 19th day of February, 1992.
ENDNOTES
1/ The County failed to revise the special development district regulations by the policy's target date of May, 1991.
2/ The County presented testimony that the data and analysis is incorrect because the level of service for the Pensacola Bay Bridge probably is between "B" and "C" instead of "F". If this is the case, the data and analysis does not support TCE Policy 1.1.1 and CIE 1.3.3 and a remedial amendment, supported by amended data and analysis, would be required.
APPENDIX TO RECOMMENED ORDER, CASE NO. 90-7663GM
The following constitutes my specific rulings in accordance with Section 120.59, Florida Statutes, on Findings of Fact submitted by the parties.
Proposed Findings of Petitioner Department of Community Affairs
Accepted.
Adopted, although not verbatim.
3-4. Adopted in substance.
II. Standing of the Parties
1-7. Adopted, although not verbatim.
II. 8. Adopted in substance.
9-10. Adopted.
County Background
Adopted.
Adopted.
Adopted, although not verbatim.
4-5. Adopted in substance.
Rejected, conclusion of law.
Rejected, conclusion of law.
8-11. Adopted in substance.
Plan Background and History 1-9. Adopted in substance.
Santa Rosa Island Authority 1-10. Adopted in substance. 11-12. Rejected, unnecessary.
13. Adopted in substance.
Efficiency of Land Use and the Future Land Use Map 1-2. Rejected, conclusion of law.
3-12. Adopted in substance, though not verbatim.
Rejected, unnecessary.
Rejected, conclusion of law.
15-25. Adopted in substance, though not verbatim.
26. Rejected, conclusion of law.
27-28. Adopted, although not verbatim.
29-31. Rejected, subordinate to Hearing Officer's findings. 32-48. Adopted in substance, though not verbatim.
49. Rejected, conclusion of law. 50-51. Adopted in substance.
52. Rejected, conclusion of law. 53-59. Adopted in substance.
Rejected, conclusion of law.
Adopted.
VI. Protection of Natural Resources
Rejected, conclusion of law.
Adopted in substance.
Rejected, as to first sentence. Remainder adopted. 4-5. Adopted in substance, although not verbatim.
6-14. Adopted in substance.
15. Subordinate to Hearing Officer's finding. 16-25. Adopted in substance.
26. Rejected, conclusion of law.
27-30. Adopted in substance, although not verbatim.
31. Rejected, conclusion of law.
32-44. Adopted in substance, although not verbatim. IX Coastal High Hazard Areas/Hurricane Evacuation
1. Rejected, conclusion of law.
2-13. Adopted in substance, though not verbatim.
14. Rejected, conclusion of law. 15-17. Adopted in substance.
XX Coastal Management
1. Rejected, conclusion of law.
2-5. Adopted in substance. XII Financial Feasibility
1. Rejected, conclusion of law.
2-5. Adopted in substance. XIII Concurrency Management
Rejected, conclusion of law.
Adopted in substance.
Rejected, conclusion of law.
Adopted in substance, although not verbatim. 5-6. Adopted in substance.
7. Rejected, conclusion of law.
8-14. Adopted in substance. XIV Level of Service Standards
1-2. Rejected, conclusions of law. 3-8. Adopted in substance.
9-10. Rejected, conclusions of law. 11-26. Adopted in substance.
Rejected, unnecessary.
Adopted.
29-30. Rejected, unnecessary.
31-37. Adopted in substance, although not verbatim.
XV. Affordable Housing
1-2. Rejected, conclusions of law. 3-8. Adopted in substance.
Consistency with the State Comprehensive Plan No proposed findings were submitted.
Consistency with the Regional Policy Plan No proposed findings were submitted.
Proposed Findings of Respondent Escabmia County
I.A.1 Adopted with exception of reference to population.
I.A.2. Rejected, unnecessary.
I.B.3 Rejected, unnecessary.
Accepted.
Rejected, not supported by the greater weight of the evidence.
Adopted in substance except for the last paragraph which is rejected.
Rejected as to last paragraph, subordinate to Hearing Officer findings.
Adopted.
Adopted.
Rejected as subordinate to Hearing Officer's findings.
Adopted except for last sentence.
Adopted except for last sentence.
Adopted.
III.A.1.a.-d. Rejected, not supported by the greater weight of the evidence.
Rejected, subordinate to Hearing Officer's findings.
Rejected, subordinate to Hearing Officer's findings.
Rejected, subordinate to Hearing Officer's findings and not relevant.
Rejected, subordinate to Hearing Officer's findings, also Conclusion of Law.
Rejected, relevancy. III.A.1.1.e. Rejected, relevancy. III.A.1.1.f.-
1.1.g. Rejected, subordinate to Hearing Officer's findings.
III.A.2.a.-g. Rejected, not supported by the greater weight of the evidence.
III.A.3. Rejected, subordinate, relevancy, not supported by greater weight.
III.A.4.a.-c. Rejected, not supported by the greater weight of the evidence.
Rejected, subordinate to Hearing Officer's findings.
Rejected, subordinate to Hearing Officer's findings.
Rejected, subordinate to Hearing Officer's findings.
Rejected, subordinate to Hearing Officer's findings.
III.A.5.a. Rejected, subordinate to Hearing Officer's findings.
Rejected, not supported by the greater weight of the evidence.
III.A.6.a.-
6.c.(3) Rejected, subordinate to Hearing Officer's findings.
Rejected, not supported by the greater weight of the evidence.
Rejected, not supported by the greater weight of the evidence.
Rejected, not supported by the greater weight of the evidence.
III.A.9.a.-b. Rejected, subordinate to Hearing Officer's findings.
Rejected, argumentative. III.A.10.1-
10.1.b. Rejected, subordinate to Hearing Officer's findings.
III.A.11.a.-d. Rejected, subordinate as to Hearing Officer's finding.
Rejected, subordinate as to Hearing Officer's findings.
Rejected, subordinate as to Hearing Officer's findings.
Rejected, subordinate as to Hearing Officer's findings, also argumentative.
Rejected, unnecessary. III.A.11.1.d. Rejected, relevancy.
Rejected, relevancy.
Rejected, subordinate as to Hearing Officer's findings.
Rejected, not supported by the greater weight of the evidence.
Accepted, although not verbatim.
Rejected, subordinate as to Hearing Officer's findings.
Accepted.
Rejected, subordinate to Hearing Officer's findings.
Rejected, not supported by the greater weight of the evidence. Maps that were referred to in this finding were included in data and analysis and were not part of the FLUM.
Rejected, unnecessary. Also, the FLUM that was adopted by the county does not include the depictions set forth in the data and analysis.
Rejected, not supported by the greater weight of the evidence and argumentative.
Rejected, Conclusion of Law.
Rejected, not supported by the weight of the evidence.
Rejected, subordinate to Hearing Officer's findings.
III.A.16.a.-b. Rejected, not supported by the greater weight of the evidence.
III.A.16.1. Rejected, not supported by the greater weight of the evidence.
Rejected, subordinate to Hearing Officer's findings.
Rejected, not supported by the greater weight of the evidence.
Rejected, not supported by the greater weight of the evidence.
Rejected, not supported by the greater weight of the evidence.
III.B.1.a.-j. Rejected, subordinate to Hearing Officer's findings.
III.B.2.a.-f. Rejected, subordinate to Hearing Officer's findings.
III.B.3.a.-e. Rejected, subordinate to Hearing Officer's findings.
III.B.4.a.-e. Rejected, subordinate to Hearing Officer's findings.
III.B.5. This proposed finding is rejected in its entirety as to subordinate to Hearing Officer's Conclusions and Argument of Law.
III.B.6.a.-g. Rejected, subordinate to Hearing Officer's findings.
Rejected, not supported by the greater weight of the evidence.
III.B.7.a.-e. Rejected, subordinate to Hearing Officer's findings.
Rejected, not supported by the greater weight of the evidence.
III.B.8.a.-c. Rejected, subordinate to Hearing Officer's findings.
III.B.9.a.-b. Rejected, subordinate to Hearing Officer's findings.
Rejected, not supported by the greater weight of the evidence.
III.B.10.a.-b. Rejected, subordinate to Hearing Officer's findings.
Rejected, not supported by the greater weight of the evidence.
III.B.11.a.-d. Rejected, subordinate to Hearing Officer's findings.
Rejected, not supported by the greater weight of the evidence.
III.B.12.a.-d. Rejected, subordinate to Hearing Officer's findings.
Rejected, not supported by the greater weight of the evidence.
III.B.13.a.-c. Rejected, subordinate to Hearing Officer's findings.
Rejected, not supported by the greater weight of the evidence.
III.C.1.a.-b. Rejected, subordinate to Hearing Officer's findings.
Rejected, subordinate to Hearing Officer's findings.
Incorporated by reference.
Rejected, not supported by the greater weight of the evidence, argumentative, legal conclusion.
Rejected, argumentative.
Rejected, not supported by the greater weight of the evidence.
Rejected, Conclusion of Law.
Rejected, not supported by the greater weight of the evidence.
III.C.3.a.-b. Rejected, subordinate to Hearing Officer's findings.
Rejected, data analysis are not subject to compliance review.
III.C.4.a. Accepted, although not verbatim.
III.C.4.b.-d. Rejected, subordinate to Hearing Officer's findings on this point.
Rejected, not supported by the greater weight of the evidence.
III.C.5.a. Rejected, subordinate to Hearing Officer's findings on this point.
III.C.5.b.-c. Rejected, not supported by the greater weight of the evidence.
Rejected, not supported by the greater weight of the evidence.
III.D.1.a.-c. Rejected, subordinate to Hearing Officer's findings on this point.
Rejected, unnecessary.
III.E.1. Rejected, not supported by the greater weight of the evidence.
III.E.1.a.-i. Rejected, subordinate to Hearing Officer's findings on this point.
Rejected, not supported by the greater weight of the evidence.
Rejected, subordinate to Hearing Officer's findings on this point.
Rejected, not supported by the greater weight of the evidence.
Rejected, subordinate to Hearing Officer's findings on this point.
Rejected, not supported by the greater weight of the evidence.
Rejected, subordinate to Hearing Officer's findings on this point.
Rejected, not supported by the greater weight of the evidence.
Rejected, subordinate to Hearing Officer's findings on this point.
Rejected, not supported by the greater weight of the evidence.
Rejected, subordinate to Hearing Officer's findings on this point.
Rejected, not supported by the greater weight of the evidence.
Rejected, not supported by the greater weight of the evidence.
Rejected, not supported by the greater weight of the evidence.
Rejected, not supported by the greater weight of the evidence.
III.H.2.a.-e. Rejected, subordinate to Hearing Officer's findings on these points.
Rejected, subordinate to Hearing Officer findings on this point.
Rejected, not supported the greater weight of the evidence.
Rejected, not supported the greater weight of the evidence.
Rejected, not supported the greater weight of the evidence.
Rejected, subordinate to Hearing Officer's findings.
Rejected, argumentative law.
Rejected, unnecessary, recitation of testimony.
III.H.7.1. Rejected, subordinate to Hearing Officer's conclusions.
Rejected, not supported by the greater weight of the evidence.
Rejected, argumentative.
Rejected, not supported by the greater weight of the evidence.
Rejected, not supported by the greater weight of the evidence.
Incorporated by reference.
Rejected, not supported by the greater weight of the evidence.
Rejected, subordinate to Hearing Officer's findings.
Rejected, not supported by the greater weight of the evidence.
Rejected, not supported by the greater weight of the evidence.
III.K.1.A. Rejected, not supported by the greater weight of the evidence.
III.L.1.A. Consistency with the regional policy plan, rejected, not supported by the greater weight of the evidence.
Proposed Findings of Respondent/Intervenor Home Builders Association of West
Florida Incorporated
Accepted.
Accepted.
Accepted, with exception of Jacqueline and James Lane.
Addressed.
Accepted.
Accepted.
Rejected, unnecessary.
Accepted.
Accepted.
Accepted.
Accepted.
Rejected, not supported by the greater weight of the evidence.
Rejected, subordinate to Hearing Officer's findings.
Rejected, relevancy.
Rejected, not supported by the greater weight of the evidence.
Rejected, not supported by the greater weight of the evidence.
Accepted.
Accepted.
Rejected, not supported by the greater weight of the evidence.
Rejected, subordinate to Hearing Officer's findings.
Rejected, subordinate to Hearing Officer's findings.
Accepted, although not verbatim.
Rejected, subordinate to Hearing Officer's findings.
Rejected, relevancy.
Rejected, not supported by the greater weight of the evidence.
Rejected, subordinate to Hearing Officer's conclusions.
Accepted, although not verbatim.
Rejected, not supported by the greater weight of the evidence.
I.7.-8. See rulings on Proposed Findings of Respondent/Escambia County.
Accepted with exception of last sentence which is rejected as subordinate to Hearing Officer's findings.
Rejected, subordinate to Hearing Officer's findings.
Rejected, relevancy.
Accepted, although not verbatim.
Rejected, subordinate to Hearing Officer's findings.
Rejected, relevancy.
Rejected, relevancy and cummulative.
Rejected, subordinate to Hearing Officer's findings.
I.10. See rulings regarding Respondent Escambia County's Proposed Findings of Fact.
Rejected, cummulative.
Rejected, cummulative.
Rejected, cummulative.
Rejected, unnecessary.
Rejected, unnecessary.
Rejected, unnecessary. Notably, data and analysis are not required to be approved or determined to compliant in this process.
I.11.H.-I. Rejected, unnecessary.
Rejected, unnecessary.
Rejected, unnecessary.
I.11.K.-L. Both rejected as unnecessary. See previous comment regarding data and analysis.
I.11.M. Rejected, not supported by the greater weight of the evidence.
I.12.-16. See rulings on Proposed Findings of Fact submitted by Respondent, Escambia County.
Rejected, subordinate to Hearing Officer's findings.
Rejected, subordinate to Hearing Officer's findings.
Rejected, subordinate to Hearing Officer's findings.
Adopted.
Accepted.
Rejected, not supported by the greater weight of the evidence.
Rejected, unnecessary.
Rejected, cummulative.
Accepted.
Rejected, not supported by the greater weight of the evidence.
Accepted
Rejected, subordinate to Hearing Officer Findings of Fact.
Accepted.
Rejected, unnecessary.
Rejected, not supported by the greater weight of the evidence.
Rejected, argumentative.
Rejected, subordinate to Hearing Officer's finding.
Rejected, not supported by the greater weight of the evidence.
Rejected, not supported by the greater weight of the evidence.
Adopted.
Adopted.
Rejected, cummulative.
Adopted.
Rejected, unnecessary.
Rejected, subordinate to Hearing Officer's finding.
Rejected, unnecessary.
Adopted.
Rejected, subordinate to Hearing Officer's finding.
Rejected, subordinate to Hearing Officer's finding.
Adopted.
Adopted.
Adopted.
Adopted.
Rejected, not supported by the greater weight of the evidence.
Rejected, not supported by the greater weight of the evidence.
Adopted.
Adopted, although not verbatim.
Rejected, subordinate to Hearing Officer's finding.
Rejected, subordinate to Hearing Officer's findings.
Rejected, not supported by the greater weight of the evidence.
Rejected, not supported by the greater weight of the evidence.
Rejected, not supported by the greater weight of the evidence.
Rejected, cummulative.
Rejected, subordinate to Hearing Officer's findings.
Adopted.
Adopted.
Rejected, not supported by the greater weight of the evidence.
Rejected, argumentative.
Rejected, relevancy.
Rejected, unnecessary.
Rejected, argumentative.
Rejected, cummulative.
Rejected, cummulative.
Rejected, subordinate to Hearing Officer's Finding of Fact.
Rejected, subordinate to Hearing Officer's findings.
Adopted.
Cummulative.
Rejected, subordinate to Hearing Officer's findings.
Rejected, not supported by the greater weight of the evidence.
Adopted.
Rejected, subordinate to Hearing Officer's finding.
Rejected, relevancy.
Rejected, subordinate to Hearing Officer's finding.
Rejected, not supported by the greater weight of the evidence.
Rejected, not supported by the greater weight of the evidence.
Rejected, cummulative.
Adopted.
Rejected, not supported by the greater weight of the evidence.
Rejected, not supported by the greater weight of the evidence.
Rejected, subordinate to Hearing Officer's finding.
Rejected, relevancy.
Adopted.
Adopted.
Rejected, subordinate to Hearing Officer's finding.
Rejected, unnecessary.
Rejected, subordinate to Hearing Officer's finding.
Rejected, not supported by the greater weight of the evidence.
Rejected, not supported by the greater weight of the evidence.
Adopted.
Rejected, subordinate to Hearing Officer's finding.
Rejected, relevancy.
Rejected, not supported by the greater weight of the evidence.
Rejected, argumentative.
Rejected, unnecessary.
Rejected, not supported by the greater weight of the evidence.
Rejected, relevancy.
Rejected, not supported by the greater weight of the evidence.
III.2. See Findings of Fact submitted by Respondent Escambia County.
Adopted, although not verbatim.
Rejected, unnecessary.
Rejected, not supported by the greater weight of the evidence.
Adopted, although not verbatim.
Adopted, although not verbatim.
Rejected, provisions of data and analysis are not subject to compliance review.
Rejected, unnecessary.
Rejected, subordinate to Hearing Officer's Finding of Fact.
Rejected, subordinate to Hearing Officer's Finding of Fact.
Adopted, although not verbatim.
Rejected, unnecessary.
Rejected, cummulative.
Adopted, although not verbatim.
See Proposed Findings of Respondent Escambia County.
See Proposed Findings of Fact submitted by Respondent Escambia County.
Adopted.
Rejected, not supported by the greater weight of the evidence.
VII.2. See proposed Findings of Fact submitted by Respondent Escambia County.
Adopted.
Rejected, unnecessary.
Rejected, subordinate to Hearing Officer's Finding of Fact.
Rejected, subordinate to Hearing Officer's Finding of Fact.
Adopted, although not verbatim.
Rejected, not supported by the greater weight of the evidence.
VII.5.A. Rejected, not supported by the greater weight of the evidence.
VII.6. See rulings made with regard to Proposed Finding of Fact of Respondent, Escambia County.
Rejected, subordinate to Hearing Officer's Finding of Fact.
Rejected, subordinate to Hearing Officer's Finding of Fact.
Rejected, subordinate to Hearing Officer's Finding of Fact.
Rejected, not supported by the greater weight of the evidence.
Adopted, although not verbatim.
Rejected, not supported by the greater weight of the evidence.
Rejected, subordinate to Hearing Officer's Finding of Fact.
Adopted, although not verbatim.
Rejected, not supported by the greater weight of the evidence.
Rejected, not supported by the greater weight of the evidence.
Rejected, subordinate to Hearing Officer's Finding of Fact.
VIII.5.-6. See rulings for Proposed Findings of Fact submitted by Respondent Escambia County.
Adopted, although not verbatim.
Rejected, subordinate to Hearing Officer's Finding of Fact.
Adopted, although not verbatim.
Rejected, cummulative.
Rejected, subordinate to Hearing Officer's Finding of Fact.
See rulings per Proposed Findings of Fact submitted by Respondent Escambia County.
See rulings per Proposed Findings of Fact submitted by Respondent Escambia County.
Rejected, subordinate to Hearing Officer's Finding of Fact.
Rejected, subordinate to Hearing Officer's Finding of Fact.
Adopted as to the first sentence. The remainder is rejected as subordinate as to Hearing Officer's Finding of Fact.
Rejected, relevancy.
Rejected, not supported by the greater weight of the evidence.
Adopted.
Rejected, not supported by the greater weight of the evidence.
X.1.-7. Rejected, not supported by the greater weight of the evidence.
XI.1.-13. Rejected, not supported by the greater weight of the evidence.
COPIES FURNISHED:
Douglas M. Cook, Director
Florida Land and Water Adjudicatory Commission Executive Office of the Governor
311 Carlton Building Tallahassee, FL 32301
A. Randall Kelley, Assistant Secretary Department of Community Affairs
2740 Centerview Drive
Tallahassee, FL 32399-2100
David J. Russ, Esq.
Karen Brodeen, Esq.
Department of Community Affairs 2740 Centerview Drive
Tallahassee, FL 32399-2100
David Bryant, Esq.
Old Courthouse Building Pensacola, FL 32501
Ralph Peterson, Esq. Post Office Box 12950
3 West Garden Street Pensacola, FL 32576
Karen O. Emmanuel, Esq. Vince Whibbs, Jr., Esq. Post Office Drawer 1271
30 South Spring Street Pensacola, FL 32596
Muriel Wagner
League of Women Voters 6123 Confederate Drive
Pensacola, FL 32503
Dorothy S. Kaser 7055 Marie Avenue
Pensacola, FL 32504
Joseph T. Grizzaffi and Anneice Grizzaffi 2815 Mandeville Lane
Pensacola, FL 32526
James Lane and Jacqueline Lane 10738 Lillian Highway
Pensacola, FL 32506
Vivian Faircloth
126 West Jackson Street Pensacola, FL 32501
Francis M. Weston Audubon Society Post Office Box 17484
Pensacola, FL 32522
Gabrielle Faddis 3970 Rommitch Lane
Pensacola, FL 32504
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions to this recommended order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.
| Issue Date | Proceedings |
|---|---|
| Mar. 05, 1992 | (Intervenors) Recommended Remedial Actions filed. |
| Feb. 19, 1992 | Recommended Order sent out. CASE CLOSED. Hearing held July 22-August 2, 1991 and September 9-September 12, 1991. |
| Jan. 22, 1992 | Letter to DWD from D. Bryant (re: supplemental material to Proposed RO for DCA) filed. |
| Jan. 02, 1992 | (DCA) Proposed Recommended Order; Disc filed. |
| Jan. 02, 1992 | (League of Women Voters of Pensa Bay Area, D. Kaser, J. & A. Grizzaffi, Francis Weston Audubon Society, G. Faddis & V. Faircloth) Proposed Recommended Order filed. |
| Jan. 02, 1992 | Recommended Final Order of Intervenors, James H. Lane and Jacqueline Lane filed. |
| Jan. 02, 1992 | Proposed Recommended Order Submitted by Intervenor/Respondent, Home Builders Association of West Florida, Inc.; Disc filed. |
| Jan. 02, 1992 | (Respondent) Proposed Recommended Order; Appendix; Disc ; & Cover Letter to DWD from D. Bryant filed. |
| Nov. 22, 1991 | Order Granting Motion to Extend Time for Submission of Proposed Recommended Orders sent out. |
| Nov. 21, 1991 | (Respondent) Motion to Extend Time to Submit Proposed Recommended Order and to Schedule Expedited Conference Call Hearing; Motion to ExtendTime to Submit Proposed Recommended Order and to Schedule Expedited Conference Call Hearing filed. |
| Nov. 20, 1991 | (Respondent) Motion to Extend Time to Submit Proposed Recommended Order and to Schedule Expedited Conference Call Hearing filed. |
| Nov. 20, 1991 | (Intervenor) Motion to Extend Time to Submit Proposed Recommended Order and to Schedule Expedited Conference Call Hearing filed. |
| Nov. 15, 1991 | Transcript (30 Vols) filed. |
| Nov. 14, 1991 | (Respondent) Hearing Officer's Required Post Hearing Written Profer w/Exhibits 1&2; (Respondent) Objection to Hearing Officer's Requirementof Filing of Written Profer) filed. |
| Sep. 12, 1991 | CASE STATUS: Hearing Held. |
| Sep. 06, 1991 | Petitioner's Response to Escambia County's Motion to Abate filed. (From David J. Russ) |
| Sep. 05, 1991 | Motion of Respondent Escambia County to Abate or Stay Administrative Proceedings and Motion For Expedited Hearing w/Exhibit-A & Deposition of Arthur C. Nelson; Testimony of Robert Pennock; Testimony of Robert Nave; Testimony of Dr. Arthur Christian Nelson |
| Aug. 19, 1991 | Order Granting Motion to Schedule Additional Hearing Dates sent out. |
| Aug. 16, 1991 | Resopndent's Supplemental Opposition to Petitioner's Motion to Schedule Additonal Hearing Dates and Motion For Expedited Ruling filed. (From Ralph A. Peterson) |
| Aug. 15, 1991 | Respodnent's Opposition to Petitioner's Motion to Schedule AdditionalHearing Dates and Motion For Expedited Ruling filed. (From David Bryant) |
| Aug. 09, 1991 | (Petitioner) Motion to Schedule Additon Hearing Dates and Motion For Expedited Ruling filed. (From Karen Brodeen) |
| Aug. 08, 1991 | (Petitioner) Notice of Filing filed. (From Karen Brodeen) |
| Aug. 08, 1991 | Order Providing Documentation of Location and Time of Further Final Hearing sent out. (Hearing set for Sept. 9, 9:00am; Pensa). |
| Aug. 07, 1991 | Amendment to Joint Prehearing Stipulation of Petitioner, Intervenors/Petitioners and Intervenors/Respondents filed. (From Vince J. Whibbs,Jr.) |
| Jul. 24, 1991 | Notice of Voluntary Dismissal filed. (From Vince J. Whibbs, Jr.) |
| Jul. 23, 1991 | Letter to Judge Roger Vinson from Ralph A. Peterson(Re:Courtesy copies of notices from the plaintiff's) filed. |
| Jul. 23, 1991 | Subpoena Duces Tecum (4) filed. (From David E. Bryant) |
| Jul. 19, 1991 | (Respondent) Notice of Withdrawal of Counsel filed. (From Jean L. Burgess) |
| Jul. 18, 1991 | Subpoena Duces Tecum (6) filed. (From David Bryant) |
| Jul. 18, 1991 | (Intervenor) Notice of Filing Answers to Interrogatories filed. (FromKaren O. Emmanuel) |
| Jul. 18, 1991 | (Intervenor) Notice of Appearance As Co-Counsel For Intervenors, Homebuilders Association of West Florida, Inc., Edwin J. Henry and Company; Intervenor's Response to Petitioner's First Set of Requests for Admissions; Intervenor's Response to Petitioner's |
| Jul. 18, 1991 | Notice of Appearance of Counsel For Respondent filed. (From Ralph A. Peterson) |
| Jul. 18, 1991 | Western Union Telegram to WFQ from Ammos Lighton (re: becoming a petitioner) filed. |
| Jul. 17, 1991 | (Escambia County) Notice of Filing Answers to Interrogatories filed. |
| Jul. 17, 1991 | Respondent's Unilateral Prehearing Statement filed. |
| Jul. 16, 1991 | Case transferred from B. Quattlebaum to D. Davis. |
| Jul. 16, 1991 | Supplemental Answer to Petitioner's, Department of Community Affairs,Second Set of Interrogatories to Respondent, Escambia County filed. |
| Jul. 16, 1991 | Respondent's Unilateral Prehearing Statement filed. |
| Jul. 16, 1991 | Notice of Service of Answers to Escambia County's Second Set of Interrogatories filed. |
| Jul. 16, 1991 | Joint Prehearing Stipulation of Petitioner, Intervenors/Petitioners and Intervenors/Respondents filed. |
| Jul. 16, 1991 | Order Denying Motion to Dismiss or Abate sent out. |
| Jul. 15, 1991 | Petitioner's Response to Motion to Dismiss filed. |
| Jul. 15, 1991 | Notice of Filing Answers to Interrogatories; Supplemental Answer to Petitioner's, Department of Community Affairs, Second Set of Interrogatories to Respondent, Escambia filed. (from David Bryant) |
| Jul. 15, 1991 | (Escambia County) Notice of Filing Answers to Interrogatories filed. |
| Jul. 12, 1991 | Letter to WFQ from Richard W. Post (re: Deposition) filed. |
| Jul. 10, 1991 | Intervenor's Response to Petitioner's First Set of Request for Admissions filed. |
| Jul. 09, 1991 | Plaintiff's response to Department of Community Affairs' motion to dismiss complaint and motion for imposition of sanctions filed. |
| Jul. 05, 1991 | Cross Notice of Taking Deposition Duces Tecum filed. (From Jean L. Burgess) |
| Jul. 05, 1991 | (respondent) Notice of Filing Answers to Interrogatories filed. |
| Jul. 05, 1991 | Respondent's Motion to Dismiss or in the Alternative Motion to Hold Pending Final Hearing in Abeyance and Motion for Expedited Hearing and Order filed. |
| Jul. 03, 1991 | Respondent's Reply to Petitioner's First Set of Request's for Admissions filed. |
| Jul. 01, 1991 | Department of Community Affairs Response to Motions to Quash and for Protective Order filed. |
| Jul. 01, 1991 | Intervenor's Response to Petitioner's First Set of Requests for Admissions (3) filed. |
| Jul. 01, 1991 | Order Denying Motions to Quash and for Protective Orders sent out. |
| Jun. 28, 1991 | Letter to WFQ from Amelie Blyth (re: subpoena) w/attached cc of a ltrdated June 12, 1991 filed. |
| Jun. 28, 1991 | Department of Community Affairs' Motion For Order Compelling Discovery, for Expedited Ruling and For Fees and Costs filed. (From Karen Brodeen) |
| Jun. 28, 1991 | Motion to Quash and In The Alternative Motion For Protective Order and Motion For Expedited Order (3) filed. (From David Bryant) |
| Jun. 27, 1991 | Subpoena Duces Tecum (5) filed. (From David Bryant) |
| Jun. 25, 1991 | Plaintiff's Notice of Filing Affidavits w/Affidavit filed. (From Ralph A. Peterson) |
| Jun. 24, 1991 | Plaintiff's Notice of Filing Affidavit & Affidavit filed. (From W. Specer Mitchem) |
| Jun. 24, 1991 | Notice of Taking Deposition Duces Tecum filed. (From Karen Brodeen) |
| Jun. 24, 1991 | Notice of Taking Deposition Duces Tecum filed. (from Karen Brodeen) |
| Jun. 24, 1991 | Plaintiff's Notice of Filing Affidavit; Affidavit w/Exhibits 15-17 filed. (From Ralph A. Peterson) |
| Jun. 24, 1991 | Notice of Taking Deposition Duces Tecum filed. (From Karen Brodeen) |
| Jun. 21, 1991 | Verification filed. |
| Jun. 21, 1991 | Motion for Emergency and Expedited Hearing and Oral Argument, and forIssuance of an Order to Show Cause to Defendents; Motion for Preliminary Injunction; Motion for Preliminary Injunction; Plaintiff's Memorandum in Support of Moti on for Preliminary Injun |
| Jun. 17, 1991 | Order Rescheduling Certain Depositions sent out. |
| Jun. 17, 1991 | CC Letter to Karen Brodeen from David E. Bryant (re: ltr dated June 13, 1991) & attachment filed. |
| Jun. 17, 1991 | Motion For Protective Order filed. (From Dana Wiehle) |
| Jun. 14, 1991 | Summons in A Civil Action filed. |
| Jun. 14, 1991 | CC Letter to Karen Brodeen from David E. Bryant (re: Depositions) filed. |
| Jun. 14, 1991 | Letter to David Bryant from Gloria Dawson (re: Intervenors' witnesses) filed. |
| Jun. 14, 1991 | Letter to WFQ from William T. Young (re: request to be excused from participating in deposition) filed. |
| Jun. 14, 1991 | Notice of Taking Deposition filed. (From David J. Russ) |
| Jun. 14, 1991 | (Petitioner) Motion to Quash and in The Alternative Motion For Protective Order filed. (From Karen Brodeen) |
| Jun. 10, 1991 | (Respondent) Notice of Taking Deposition Duces Tecum filed. (From David Bryant) |
| Jun. 10, 1991 | Subpoena Duces Tecum (14) filed. (From David Bryant) |
| Jun. 10, 1991 | Notice of Taking Deposition Duces Tecum filed. (From, David E. Bryant) |
| Jun. 07, 1991 | Notice of Taking Deposition Duces Tecum (3) filed. (From Jean L. Burgess) |
| Jun. 06, 1991 | Letter to WFQ from Sharon s. Caine (re: request for Subpoena Duce Tecum) filed. |
| Jun. 06, 1991 | Notice of Service of Interrogatories filed. (From Jean L. Burgess) |
| Jun. 06, 1991 | Letter to Kimberly Ghent from Sharon S. Caine (re: Copy of Order signed by WFQ) filed. |
| Jun. 05, 1991 | Letter to J.L. Bryant from WFQ sent out. (RE: J. Lane & J. Lane's Petition to Intervene). |
| Jun. 05, 1991 | Order in Limine sent out. |
| Jun. 03, 1991 | Letter to DOAH from Jean L. Burgess (re: Status) filed. |
| May 31, 1991 | Notice of Service of Interrogatories to E. J. Gibbs; Department of Community Affairs' First Set of Interrogatories to E. J. Gibbs; Notice of Service of Interrogatories to Homebuilders Association of West Florida; Department of Community Affairs' First Set |
| May 31, 1991 | Notice of Service of Interrogatories to Escambia County; Department of Community Affairs' Second Set of Interrogatories to Escambia County filed. (from Karen Brodeen) |
| May 31, 1991 | Notice of Service of Interrogatories to Henry and Company, Inc.; Department of Community Affairs' First Set of Interrogatories to Henry andCompany, Inc. filed. (from Karen Brodeen) |
| May 31, 1991 | Notice of Service of Interrogatories to Highlands Development Group Inc.; Department of Community Affairs' First Set of Interrogatories to Highland Development Group Inc.; Notice of Service of Interrogatories to Escambia Construction company, Inc.; Depart |
| May 31, 1991 | Petitioner's First Set of Request's For Admissions to Respondent and Intervenors filed. (From Karen Brodeen) |
| May 31, 1991 | Order Granting Petitions to Intervene sent out. (for Home Builders Assn of W Fl, Inc, E. Henry & Henry & Co, Inc, E. J. Gibbs, M. Blanton &Escambia Construction Co & Highland Development Group, Inc) |
| May 31, 1991 | Order Concerning Representation by A Qualified Representative sent out. (for Highland Development Group Vice Pres) |
| May 31, 1991 | Order Concerning Representation by A Qualified Representative sent out. (for M. Blanton) |
| May 24, 1991 | Notice of Service of Interrogatories filed. (from D. E. Bryant) |
| May 23, 1991 | Notice of Service of Interrogatories (5) filed. (From D. E. Bryant & J. L. Burgess) |
| May 20, 1991 | Notice of Protest of Intervenors League of Women Voters of Pensacola Bay Area, Inc. filed. (From Muriel W. Wagner) |
| May 17, 1991 | Notice of Filing Certificate of Authorization to Interrogatories; Notice of Filing Answers to Interrogatories; Notice of Filing Answers to Interrogatories filed. |
| May 15, 1991 | Judicial Notice of Intervenors League of Women Voters of Pensacola Bay Area, Inc. and Vivian Faircloth filed. (from G. Dawson & V. J. Faircloth) |
| May 15, 1991 | Notice of Filing Answers to Interrogatories filed. (From Jean L. Burgess) |
| May 15, 1991 | Subpoena Duces Tecum & Affidavit (3) filed. (From David Bryant) |
| May 14, 1991 | Complaint For Writ of Certiorari & Order Nisi In Prohibition filed. (from David Bryant) |
| May 13, 1991 | Second Notice of Hearing sent out. (hearing set for July 22-26, 1991& July 29 - Aug. 2, 1991; 9:30am; Pensacola). |
| May 13, 1991 | Second Order Establishing Prehearing Procedure sent out. |
| May 13, 1991 | Notice of Service of Interrogatories to Escambia County; Vivian J. Faircloth Shortened Set of Interrogatories to Escambia County filed.Vivian Faircloth) |
| May 13, 1991 | Notice of Filing Answers to Interrogatories filed. (from Jean L. Burgess) |
| May 13, 1991 | (Petitioner) Motion in Limine filed. (from David J. Russ) |
| May 10, 1991 | Response to Motion to Quash Subpoenas and For Protective Order filed.(From David J. Russ) |
| May 10, 1991 | Intervenors' Pre-Hearing Statement filed. (From Gloria F. Dawson et al) |
| May 10, 1991 | Letter to WFQ from Philip A. Payne (re: Statement) & attachments filed. |
| May 10, 1991 | Respondent's Motion For Protective Order and Request For Expedited Hearing On Motion For Protective Order w/Exhibits 1-6; Motion to Quash Subpoena For Hearing filed. |
| May 09, 1991 | Addendum to Petitioner's Unilateral Prehearing Statement filed. (FromKaren Brodeen) |
| May 09, 1991 | Respondent's Unilateral Prehearing Statement w/Respondent's Exhibit List & Attachments filed. (From Jean Burgess) |
| May 08, 1991 | Petitioner's Unilateral Prehearing Statement filed. (From Karen Brodeen) |
| May 08, 1991 | Notice of Filing Answers to Interrogatories filed. (From David Bryant) |
| May 08, 1991 | Respondent's Motion for Continuance and Motion to Extend Time to Complete Discovery w/exhibit-A filed. (From David Bryant) |
| May 07, 1991 | Highland Development Group, Inc. Petition to Intervene; E. J. Gibbs Petition to Intervene; Michael A. Blanton and Escambia Construction Co., Inc. Petition to Intervene; Edwin A. Henry and Henry and Company, Inc. Petition to Intervene; Home Builders Associ |
| May 07, 1991 | Second Amended Notice of Taking Deposition Duces Tecum filed. (from Jean L. Burgess) |
| May 07, 1991 | Petitioner's Response to Escambia County's Motion to Compel and Motion For In Camera Inspection; Cross Notice of Taking Deposition Duces Tecum filed. (From Karen Brodeen) |
| May 07, 1991 | (Petitioner) Motion for Continuance filed. (From Vince Whibbs, Jr.) |
| May 06, 1991 | Cross Notice of Taking Deposition Duces Tecum filed. (from David J. Russ) |
| May 06, 1991 | Department of Community Affairs' First Set of Interrogatories to Escambia County filed. |
| May 06, 1991 | Subpoena Duces Tecum & Affidavit of Service filed. (FromDavid Bryant) |
| May 06, 1991 | List of Exhibits filed. (From Vivian Faircloth) |
| May 06, 1991 | Amended Notice of Taking Deposition Duces Tecum filed. (From Jean Burgess) |
| May 03, 1991 | Order Granting Petition to Intervene sent out. (for James & Jacqueline Lane) |
| May 03, 1991 | Amended Notice of Taking Deposition Duces Tecum filed. (from David E.Bryant) |
| May 03, 1991 | Order sent out. (motion to compel granted) |
| May 03, 1991 | Motion to Compel or in the Alternative Motion For Sanctions and Motion For Expedited Order w/exhibit-A-C & Deposition exhibit-2; Motion ForIn Camera Inspection and Motion For Sanctions and Motion For Expedited Order & exhibits rec 'd. (From David E. Bryan |
| May 02, 1991 | Motion to Compel and For Expedited Order w/Exhibit-A filed. (From Karen Brodeen) |
| May 01, 1991 | Respondent's Exhibit List filed. (From David E. Bryant) |
| Apr. 30, 1991 | (Petitioner) Request For Judicial Notice; Petitioner's Exhibit List filed. (From David J. Russ) |
| Apr. 26, 1991 | Notice of Taking Deposition filed. (From Karen Brodeen) |
| Apr. 26, 1991 | Petition to Intervene in Determination of Non-Compliance of Wscanbia County's Comprehensive Plan & attachment filed. (From Jacqueline M. Lane & James H. Lane) |
| Apr. 24, 1991 | Notice of Taking Deposition Duces Tecum filed. (From David E. Bryant) |
| Apr. 24, 1991 | Notice of Taking Deposition Duces Tecum filed. (From David E. Bryant) |
| Apr. 23, 1991 | Subpoena Duces Tecum filed. (from David Breyant) |
| Apr. 23, 1991 | Notice of Service of Interrogatories to Escambia County (4); Motion to Compel Response and to Extend Time For Response to Shortened Set of Interrogatories filed. (From Glorida Dawson) |
| Apr. 22, 1991 | Second Order Granting Petition to Intervene sent out. (for J. T. & A.Grizzaffi). |
| Apr. 22, 1991 | Order Denying Motion for Leave to Exceed Maxium Number of Interrogatories and for Order Compelling Discovery sent out. |
| Apr. 22, 1991 | DCA'S Reply to Respondent's Response to Petitioner's More Definite Statement filed. |
| Apr. 22, 1991 | (Respondent) Notice of Taking Deposition Duces Tecum filed. (from David Bryant) |
| Apr. 22, 1991 | Petitioners' Response to Respondent's Response to Petitioner's More Definite Statement filed. (from Joseph J. Grizzaffi, Jr. & Anniece Grizzaffi, Jr.) |
| Apr. 22, 1991 | Subpoena Duces Tecum (5) filed. (From David E. Bryant) |
| Apr. 18, 1991 | Notice of Taking Deposition Duces Tecum (3) filed. (from David E. Bryant) |
| Apr. 17, 1991 | Subpoena Duces Tecum & Affidavits (7) filed. (from David Bryant) |
| Apr. 15, 1991 | (Petitioner) Notice of Taking Deposition filed. (From Karen Brodeen) |
| Apr. 12, 1991 | Petitioner's Response to Motion for Order Com,pelling Discovery and Motion For Leave to Exceed the Maxium Number of Interrogatories filed. |
| Apr. 11, 1991 | Respondent's Response to Petitioner's More Definite Statement w/(2) Affidavits & attachments filed. (From David E. Bryant) |
| Apr. 08, 1991 | (Respondent) Motion For Leave to Exceed The Maximum Number of Interrogatories; Motion For Order Compelling Discovery filed. (From David E. Bryant) |
| Apr. 03, 1991 | Order Granting Request for Acceptance of Qualified Representative (for M. Wagner) sent out. |
| Apr. 03, 1991 | Petitioners More Definite Statement as Ordered Dated March 19, 1991 filed. |
| Apr. 01, 1991 | Request for Acceptance of Non-Attorney Representative; Affidavit; Letter to WFQ from G. Faddis (re: petition to intervene) filed. |
| Mar. 25, 1991 | Order Granting Petition to Intervene sent out. |
| Mar. 25, 1991 | Order Concerning Representation by a Qualified Representative (authorization and Affidavit shall be filed not later than 10 days from the date of this order) sent out. |
| Mar. 22, 1991 | (Petitioner) Notice of Service of Interrogatories to Escambia County;Department of Community Affairs First Set of Interrogatories to Escambia County filed. |
| Mar. 19, 1991 | Order For More Definite Statement sent out. |
| Mar. 18, 1991 | Petitioners Notice of Objection to Interrogatories filed. |
| Mar. 11, 1991 | Respondents Response to Intervenors Reply Dated March 2, 1991 (Exhibit 1-3) filed. |
| Mar. 06, 1991 | (Respondent) Request for Acceptance of Non-Attorney Representative filed. |
| Mar. 05, 1991 | Letter to WFQ from J. Grizzaffi, Jr. (Re: Intervenors Reply to Respondents Response in Opposition to Petition to The Department of Community Affairs) filed. |
| Mar. 04, 1991 | Letter to WFQ from D. Bryant (re: filing of pleading) filed. |
| Mar. 04, 1991 | Respondent's Response to Intervenor's Reply to Respondent's Objectionto Approval of Non-Attorney Representative; & cover letter from D. Bryant filed. |
| Mar. 01, 1991 | Petition to Intervene of Francis M. Weston Audubon Society and Gabrielle Faddis; Ltr. to R. Koncar from F. Weston; Ltr to R. Koncar from F.Weston filed. |
| Feb. 27, 1991 | Respondents Response in Opposition to Petition to The Department of Community Affairs Supporting its Not in Compliance Decision of EscambiaCountys Comprehensive Plan filed. |
| Feb. 26, 1991 | Order Denying Petition to Intervene sent out. |
| Feb. 26, 1991 | Order Denying Petition to Intervene sent out. |
| Feb. 25, 1991 | Intervenor's Reply to Respondent's Objection to Approval of Non-Attorney Representative filed. |
| Feb. 19, 1991 | Petition to Intervene of Francis M. Weston Audubon Society and Gabrielle Faddis; And Cover letter from G. Faddis filed. |
| Feb. 19, 1991 | Petition to The Department of Community Affairs Supporting Its Not InCompliance Decision of Escambia Countys Comprehensive Plan; Cover letter to Clerk from K. Brodeen filed. |
| Feb. 15, 1991 | Respondent's Objection to Non-Attorney Representative Muriel Wagner'sRequest for Approval as Qualified Representative for Pensacola Bay Area League of Women Voters filed. |
| Feb. 08, 1991 | (Petitioner) Notice of Substitution of Counsel filed. (From Karen Brodeen) |
| Feb. 08, 1991 | (Pensacola Bay Area League of Women Voters) Request For Acceptance ofNon-Attorney Representative (3) filed. (From Gloria Dawson) |
| Feb. 06, 1991 | Notice of Appearance as Co-Counsel for Respondent Escambia County (from J. Burgess); Notice of Appearance as Co-Counsel for Respondent Escambia County (from D. Bryant); & cover letter from D. Bryant filed. |
| Feb. 05, 1991 | Order Granting Petition to Intervene (for Dorothy S. Kaser) sent out |
| Jan. 28, 1991 | Order Granting Petition to Intervene sent out. (for League of Women Voters of the Pensa Bay Area, Inc & Vivian Faircloth). |
| Jan. 28, 1991 | Notice of Hearing sent out. (hearing set for May 13-17, 1991; 9:30am; Pensa) |
| Jan. 28, 1991 | Order Concerning Representation by A Qualified Representative (+ 1 att) sent out. |
| Jan. 28, 1991 | Order Establishing Prehearing Procedure sent out. |
| Jan. 16, 1991 | Petition to Intervene filed. (From Dorothy S. Kaser) |
| Jan. 16, 1991 | (Respondent) Response to Order Establishing date, Time and Place of Tentative Administrative Hearing filed. (From William P. Buztrey) |
| Jan. 10, 1991 | Petition to Intervene of LEague of Women Voters of the Pensacola Bay Area, Inc. Muriel Wagner and Vivian Faircloth filed. (From Gloria Dawson) |
| Dec. 24, 1990 | (respondent) Motion for Extension of Time to Confer filed. |
| Dec. 17, 1990 | Initial Order issued. |
| Dec. 11, 1990 | PPF's sent out. |
| Dec. 04, 1990 | Petition of The Department of Community Affairs; Notice of Intent; Statement of Intent to Find Comprehensive Plan Not in Compliance; filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Feb. 19, 1992 | Recommended Order | County comprehensive plan was not in compliance with requirements of statute or provision of rule Chapter 9J-5. |
