STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JENNIFER COCHRAN, )

)

Petitioner, )

)

vs. ) Case No. 07-5779GM

)

CITY OF CRESTVIEW, )

)

Respondent, )

)

and )

) B & H CONTRACTING, INC., )

)

Intervenor. )

)

RECOMMENDED ORDER

Pursuant to notice, this matter was heard before the Division of Administrative Hearings by its assigned Administrative Law Judge, Donald R. Alexander, on February 14, 2008, in Crestview, Florida.

APPEARANCES

For Petitioner: Silvia Morrell Alderman, Esquire

Akerman Senterfitt

106 East College Avenue, Suite 1200 Tallahassee, Florida 32301-7748

For Respondent: Ben L. Holley, Esquire

City Attorney

Post Office Box 1238 Crestview, Florida 32536-1238

For Intervenor: William J. Dunaway, Esquire

Clark, Pennington, Hart, Larry, Bond & Stackhouse

Post Office Box 13010 Pensacola, Florida 32591-3010

STATEMENT OF THE ISSUE

The issue is whether the City of Crestview's (City's) small-scale development amendment adopted by Ordinance No. 1370 on November 26, 2007, is in compliance.

PRELIMINARY STATEMENT

On November 26, 2007, the City adopted a small-scale development amendment (Ordinance No. 1370), which changed the future land use designation on the City's Future Land Use Map (FLUM) on a 9.98-acre parcel from a Rural Residential (RR) designation to Industrial (IN). The parcel is owned by Intervenor, B & H Contracting, Inc. (B & H).

On December 24, 2007, Petitioner, Jennifer Cochran, who resides in Antioch Estates, a nearby residential subdivision, filed with the Division of Administrative Hearings (DOAH) a Petition for Formal Administrative Hearing (Petition) under Section 163.3187(3)(a), Florida Statutes (2007).1 The Petition generally contended that the amendment was not in compliance in several respects. On January 18, 2008, B & H was authorized to intervene in this proceeding.

By Notice of Hearing dated January 18, 2008, a final hearing was scheduled on February 14 and 15, 2008, in Crestview, Florida. On February 12, 2008, the case was transferred from Administrative Law Judge J. Lawrence Johnston to the undersigned.

On February 7, 2008, Petitioner filed an unopposed Motion to Amend Petition for Formal Proceedings, accompanied by an Amended Petition for Formal Administrative Hearing (Amended Petition). The Amended Petition generally alleged that the plan amendment exceeded the 10-acre size limitation for small-scale amendments, conflicted with certain provisions within Florida Administrative Code Rule Chapter 9J-5, was not based on adequate data and analysis, was inconsistent with other provisions in the City's Comprehensive Plan (Plan), and was inconsistent in certain respects with Chapter 163, Florida Statutes. Leave to file the amended pleading was authorized by Order dated

February 8, 2008.

On February 11, 2008, B & H filed a Motion in Limine (Motion) generally seeking to exclude as being immaterial any evidence regarding a concrete batch plant, which B & H proposes to construct on the property if the amendment is found to be in compliance, or its compatibility with adjacent land uses on the ground these issues are addressed by City land development regulations, which are not a part of this proceeding. A

Response in opposition to the Motion was filed by Petitioner on February 12, 2008. Argument on the Motion was heard at the hearing, and the Motion was denied without prejudice to the parties presenting further arguments on the relevancy of such evidence in their post-hearing filings. The parties were also allowed to present evidence on these matters at the hearing.

At the final hearing, Petitioner presented the testimony of Ronald Russell, an employee of B & H; Mike Carroll, project manager and vice-president of Integrated Engineering Solutions, LLC, a subsidiary of B & H; Kermit H. George, a land surveyor for Integrated Engineering Solutions, LLC; Eric Davis, a planning official for the City; Jack E. Dorman, an outside planning consultant for the City and accepted as an expert;

J. Cloyce Darnell, a professional engineer and accepted as an expert; and Roger Wilburn, a professional planner and accepted as an expert. Also, she offered Petitioner's Exhibits A-N, which were received in evidence. Intervenor presented the testimony of Petitioner; Teresa Gaillard, a Geographic Information System mapping analyst for the City; Mike Wing, Administrative Services Director for the City; Mike Carroll; and Jack E. Dorman. Although the City presented no witnesses or separate exhibits, it has adopted Intervenor's evidence. The parties also offered Joint Exhibits A-H and J-L, which were received in evidence. Finally, the following members of the

public, all of whom live in Antioch Estates, offered testimony regarding the plan amendment: Jennifer Stegner, Claire Erk, William Rozofsky, Robert Felth, and Cynthia Seidel. Ms. Erk offered Public Exhibit 1, which was received in evidence.

Except for witness Felth, each witness opposed the change in land use. Mr. Felth supports the amendment so long as B & H completes certain promised infrastructure improvements totaling

$458,000.00, including the paving of 1.2 miles of two dirt roads near the subject property, Point Center Road and Rhett Enzor Road. The parties further stipulated that other members of the public (numbering around ten) who attended the hearing but did not testify would essentially testify to the same facts as those given by witnesses Stedner and Erk, who opposed the application.

A Transcript of the hearing (two volumes) was filed on March 13, 2008. Petitioner and Intervenor filed Proposed Recommended Orders on March 24, 2008, and they have been considered by the undersigned in the preparation of this Recommended Order. Petitioner's Proposed Recommended Order was accompanied by an unopposed Motion to Exceed 40 Page Limit, which is hereby granted. By letter dated March 25, 2008, the City adopted Intervenor's Proposed Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of fact are determined:

1. Background

   
   

   1. B & H is a Florida corporation which owns and operates a number of concrete batch plants and a surveying and engineering company known as Integrated Engineering Solutions, LLC. The parties have stipulated that B & H is the owner of property within the City and submitted comments to the City in support of the change in the land use prior to the adoption of the plan amendment. As such, B & H is an affected person and has standing to participate in this matter.

   2. In 2005, B & H purchased a 75.56-acre tract of vacant, undeveloped land in the unincorporated part of Okaloosa County (County), just southwest of the City. The parcel is generally bounded on its northern side by Interstate 10 (I-10) and by a 150-foot wide Gulf Power Company easement on its southern boundary. All of the property carried a County land use designation of RR, which limits development to one residential unit per five acres. See Future Land Use Element (FLUE) Policy

      10.1.e. (Petitioner's Exhibit A).

      
      

   3. After B & H purchased the property, it applied for development approval (including a land use change from RR to an industrial) from the County. In the face of substantial public opposition, and a negative staff recommendation, B & H withdrew its application during a County Planning Commission hearing on April 12, 2007. (The County staff noted that the property "is

      located in the immediate vicinity of . . . a residential subdivision"; that a wide range of industrial uses would be allowed on the property if it was changed to IN; that the requested action would have the effect of "spot zoning"; that there is no shortage of industrial-zoned lands in other areas of the County; and that "the requested action is not compatible with the proximate residential subdivision and does not result in an appropriate transition of uses, densities, and intensities as expressed in [FLUE] Policy 4.4.")

   4. Shortly thereafter, B & H filed a petition for voluntary annexation with the City. On August 27, 2007, the City annexed a 9.98-acre parcel of B & H's land lying in the eastern half of the larger parcel. (The remainder of the larger parcel remains in the County.) B & H then filed an application in the form of a small-scale development amendment seeking a change in the land use on the property from RR to IN. Because the size of the parcel was less than 10 acres, the change in land use was accomplished by this type of amendment, which is not reviewed by the Department of Community Affairs (Department). See § 163.3187(1)(c)1. and (3)(a), Fla. Stat.

   5. According to FLUE Policy 7.A.3.4.f. in the City's Plan, the IN category

      is designed to protect lands for production and distribution of goods and for other industrial activities. A wide range of

      industrial uses and commercial uses are allowed in this category. Specific uses include light and heavy manufacturing, assembly, training facilities, vehicle repair (including body work and painting), packaging, processing, wholesale business and warehousing, truck terminals, borrow pits, asphalt/concrete plants, heavy equipment sales, service and/or rentals, and other uses similar to those listed herein.

      Residential uses are prohibited except as an accessory to a permitted use.

      
      

   6. In addition to the application for a change in the FLUM, B & H submitted an application for site plan approval for a concrete batch plant to be located on the southern end of the subject property. This use would be consistent with the IN category. However, until this proceeding is concluded, the site plan will not be reviewed, modified, or approved by the City, and therefore any development provisions incorporated therein are not final. Further, the proposed use (a concrete batch plant) requires the issuance of a permit by the Department of Environmental Protection (DEP).

   7. On September 9, 2007, the City Planning Commission conducted a public hearing to consider the amendment and voted 4-1 to recommend approval of the application to the City Council.

   8. On October 8, 2007, a first reading of Ordinance No.

      
      

      1370 implementing the amendment occurred at the City Council meeting.

   9. On October 22, 2007, a public hearing was held before the City Council. The City Council voted 3-2 to deny the amendment.

   10. On November 13, 2007, the City Council conducted another public hearing for the first reading of the amendment.

   11. On November 26, 2007, the City Council conducted a second public hearing on the amendment and adopted Ordinance No. 1370 enacting the amendment. (New zoning on the land will not be imposed until or unless the plan amendment here is found to be in compliance.) Although not subject to review by the Department, the following day the City sent a copy of the adopted Ordinance to the Department.

   12. On December 24, 2007, Petitioner, who resides in Antioch Estates, a nearby residential subdivision located within the City, filed her Petition with DOAH. On February 7, 2008, she moved to amend the Petition and authorization to do so was granted by Order dated February 8, 2008. In her Amended Petition, she generally contended that the amendment is not in compliance because it is internally inconsistent with other Plan provisions in several respects; the amendment is not supported by adequate data and analysis; the property being reclassified is greater than 10 acres in size and therefore cannot qualify as a small-scale development amendment; the City did not analyze the financial feasibility of the amendment; and the City failed

       to conduct the necessary intergovernmental coordination and review. The parties have stipulated that Petitioner resides within the City and offered comments in opposition to the amendment prior to its adoption. As such, she is an affected person and has standing to challenge the amendment.

   13. At the hearing, Petitioner, who is a planner for the City of Destin but resides in Crestview, acknowledged that before she filed her initial Petition, her husband was contacted by a representative of Couch Ready Mix USA (Couch), a non-party who operates a concrete batch plant 0.8 miles southeast of Antioch Estates on Old Antioch Road, and with whom B & H would compete if the application is approved and a new concrete batch plant constructed on the site. However, Petitioner stated that she would have filed a petition even if her husband had not been contacted by Couch. Even so, it is fair to infer from the evidence that funding for Petitioner's counsel and two experts was provided by Couch.

2. The Subject Property

   
   

   1. The subject property is a 9.98-acre parcel bordered on the north by I-10 and on the east, west, and south by property owned by B & H, all of which is designated RR and zoned Agricultural. Directly to the east of the larger B & H parcel is a 70-foot strip of vacant land owned by Rhett Enzor, a non- party whose land stretches from I-10 southward to the Gulf Power

      easement. The Enzor property also carries a RR land use designation and Agricultural zoning. Besides the 70-foot strip on the eastern side, Mr. Enzor owns the other property that surrounds the larger parcel to the south and west; however, the extent of that property is not of record.

   2. Just to the east-northeast and adjacent to the Enzor property is a residential subdivision (Antioch Estates) comprised of around 125 homes. The subdivision is divided into two sections - the larger section lying north of I-10 and the smaller section located just south of I-10. It is unclear whether the entire subdivision has 125 units, or if the southern portion alone has that number. In any event, Petitioner and members of the public who offered comments at the hearing reside in the southern portion of the subdivision and oppose the application. At its closest point, the western boundary of the subdivision (particularly lots 51-55) appears to be slightly more than 600 feet from the 9.98-acre parcel, but no more than

      70 feet or so from the eastern boundary of the larger parcel.

      
      

      The distance to the proposed concrete batch plant, which will lie in the south-southwest end of the subject property, is slightly less than one-quarter mile. An elementary school (Antioch Elementary School) with an enrollment of around 800 students and 100 staff, built sometime after 1996, is located just east of Antioch Estates. A former borrow pit, Blocker Pit,

      lies south of the subdivision, while an active borrow pit, Garret Pit, lies around one-half mile or so southeast of the subdivision. Antioch Estates is classified by the City as Low Density Residential (LDR), while the school is in the Public Use land use category. Under FLUE Policy 7.A.3.4.a., the LDR category "is limited to residential uses, customary accessory uses, recreation uses, churches and places of worship and planned unit developments. Non-profit and civic organizations may be permitted by special exception. This category is intended for single family homes which may be developed with up to six (6) units per gross acre."

   3. Antioch Road appears to be a major arterial road running in a northwest-southeast direction (crossing over or under I-10) just east of the elementary school. (Less than a mile southeast of the school, Antioch Road becomes P.J. Adams Parkway.) All vehicles wishing to access the school, Antioch Estates, or the 9.98-parcel (as well as the larger B & H parcel) must do so by turning off of Antioch Road onto Garret Pit Road, a County-maintained road which intersects with Antioch Road just south of I-10. Within a short distance, Garret Pit Road intersects with Whitehurst Lane, a paved road which runs in a northwest direction from Garret Pit Road to the school and eventually makes a loop in the subdivision.

   4. At the Whitehurst Lane intersection, Garret Pit Road turns into a dirt road. Vehicles traveling to B & H's property continue south on Garret Pit Road for 300 feet or so until it intersects with Point Center Road, a privately-owned, unplatted and undedicated dirt road which runs directly west from Garrett Pit Road (and roughly parallel to I-10) through the Enzor strip and into the eastern side of the B & H property. From there, it appears that vehicles would turn south for a short distance on Borrow Pit Road (also referred to as Barrow Pit Road on certain map exhibits), another dirt road which eventually turns westward when it reaches the southern boundary of B & H property. The 9.98-acre parcel is around 66 feet north of Borrow Point Road. According to a B & H witness, Point Center Road and Borrow Pit Road are not actually roads, but are more akin to dirt trails which trucks now use to reach the excavating and land fill sites. Finally, Point Center Road passes approximately 140 feet south of, and parallel to, the southern boundary of Antioch Estates.

   5. When the subject property was annexed into the City, it retained the County FLUM designation of RR and zoning of Agricultural. The FLUM and zoning designations are retained until a plan amendment and rezoning is approved by the City. Under the County's Plan, residential uses in RR must not exceed one unit per five acres.

   6. There is currently an inactive borrow pit (covering around six acres) on the southern part of the 9.98-acre parcel, which extends westward into the larger parcel. B & H says it has no intention of resuming this operation. A small storage facility with "manholes," "pipe," and other "equipment" sits on the southwestern corner of the property, while a small wetlands area of less than an acre occupies the northwestern corner.

   7. To the west of the subject parcel on the northwestern corner of the larger parcel is an active, permitted 7.5-acre Construction & Demolition (C & D) landfill. There is some ambiguity in the testimony over the actual size of the landfill; however, in DEP's letter of intent dated March 17, 2006, which transferred Permit No. 0002800-002-SO from the original owner (Point Center, Inc.) to B & H, it stated that B & H is authorized to operate a 7.5-acre disposal unit until March 17, 2010. See Petitioner's Exhibit B. Although the useful life of the existing C & D landfill will eventually run out, at the hearing B & H's Project Manager stated that the company has an application pending with DEP to expand the landfill. The status of that matter is unknown. Expansion of a non-conforming land use, however, may be problematic. See Finding of Fact 21, infra. Besides the active C & D landfill, B & H is also periodically retrieving fill dirt from the larger parcel for site work operations, using up to 30 dump trucks for this work.

      According to a witness, the larger parcel still has around 3,000,000 cubic yards of usable dirt. Whether B & H is authorized to conduct borrow pit operations on the larger parcel is not of record. More than likely, once the landfill is used up (or no later than March 2010 when the permit expires unless it is renewed), the non-conforming use will have run its course, and the RR designation will apply to all future activities on the larger parcel.

   8. Although the entire B & H parcel was classified as RR, the borrow pit and C & D landfill are non-conforming uses under the County's Plan, presumably having been in existence before the County's Plan was adopted. A non-conforming use is one where the actual use of the property is not consistent with the future land use of the comprehensive plan or not consistent with the zoning of the property. There are very strict parameters as to whether or not you can change or modify a non-conforming use.

      Normally, changes to non-conforming uses are not allowed. A non-conforming use can not be expanded.

   9. B & H has acknowledged that it intends to seek annexation of the entire larger parcel into the City. With the exception of the C & D landfill, it is also planning to request a FLUM amendment from RR to IN for the remainder of the larger parcel. Thus, if the instant application is approved, it is fair to say that this action will be the forerunner of an effort

      to reclassify the entire 75.56 acres (except the 7.5-acre landfill) as industrial property, leaving only the 70-foot strip of Enzor property as a RR buffer between the industrial land and the subdivision.

3. Petitioner's Objections

   
   

   1. Ten-Acre Maximum

      
      

      1. Petitioner's first objection is that the amendment does not meet the statutory criteria for a small-scale development amendment because the use involves more than 10 acres. See § 163.3187(1)(c)1., Fla. Stat. ("[t]he proposed amendment [must involve] a use of 10 acres or fewer"). Petitioner argues that parcel size is not the only determinant of what must be included in the amendment, and that any acreage that is integral to the design and operation of the proposed use is considered in determining whether the small scale development amendment criteria are met. Petitioner argues that B & H failed to include in the amendment all acreage that is integral to the design and operation of the proposed use.

      2. It is undisputed that the subject parcel is 9.98 acres, as determined by Kermit George, who sealed the property's survey for B & H, and as confirmed by City employee Teresa Gaillard by using the Autocad software program.

      3. Relying primarily upon site plans for the concrete batch plant filed by B & H with the City, however, Petitioner

         contends that the acreage (.0604 acres) related to a 66-foot driveway which will access the south side of the property from Borrow Pit Road, the acreage (1.607 acres) related to the use of Borrow Pit Road after turning off of Point Center Road, the acreage (.052 acres) for an easement necessary to run a County water line from B & H's southern property line to the smaller parcel, and the 150-foot buffer on the east side of the site (which will be required by the City when or if a concrete batch plant is permitted and built) must be included in the total amount of acreage. Excluding the buffer, Petitioner has calculated this additional land to total 1.7194 acres.

         Petitioner argues that even if only one of the above items is included, it would cause the size of the amendment to exceed ten acres and lose its status as a small-scale development amendment.

      4. It is fair to infer from the evidence that the dirt trail that makes up Borrow Pit Road, as well as the 66-foot trail from Borrow Pit Road to the subject property, are already being used by B & H trucks or other vehicles to access the landfill and borrow pit area. Therefore, this "infrastructure" will be used for other purposes, irrespective of whether development on the 9.98-acre parcel occurs. At the same time, the City's planning expert noted that good planning practices do not require that the land necessary to access a parcel with

         roads or utilities, and off-site buffering, be included in calculating whether the "use" of the parcel exceeds 10 acres. Except as to the buffering issue, this interpretation of the statutory language is more logical and reasonable than Petitioner's approach and is hereby accepted. Compare Parker v. St. Johns County et al., DOAH Case No. 02-2658, 2003 Fla. ENV LEXIS 34 at *12 (DOAH Dec. 17, 2002, DCA Feb. 27, 2003)("[i]t

         would be unreasonable to construe Section 163.3187(1)(c)1., Florida Statutes, as requiring local governments and applicants to calculate pro rata share impacts of off-site utilities, determine proportionate acreage based on those impacts, and apply those figures to the small scale acreage calculations").

      5. The issue of whether the acreage related to the off- site buffering should be included as a use is not so clear cut. The City Land Development Code (LDC) requires that there be appropriate buffering between industrial and residential land uses. While the pertinent portion of the LDC is not of record, the evidence submitted by B & H and the City shows that an approximate 150-foot buffer will be necessary on the eastern side of the parcel. A City witness testified that the buffering "would normally take place upon the property being developed." However, because the use will occur in an existing borrow pit (which is 20 feet below the surface of the adjacent land), the City concluded that it would be more appropriate to place any

         required vegetative buffer and fencing off-site on the edge of the larger parcel, also owned by B & H. The buffering is an integral part of the project being placed on the parcel. In other words, the plant cannot be built without the required buffering. Therefore, the land on which the buffer and fence will be placed should be included as an integral part of the property's use. Compare St. George Plantation Owners' Association, Inc. v. Franklin County et al., DOAH Case No. 96- 5124GM, 1997 Fla. ENV LEXIS 37 at *18-20 (DOAH Feb. 16, 1997,

         Admin. Comm. Mar. 25, 1997) where three off-site absorption beds required to serve a wastewater treatment plant were considered an integral part of the facility, thereby increasing the size of the amendment's "use" from 9.6 to 14.6 acres. By adding the acreage for the 150-foot off-site buffer and fencing to the 9.98 acres, the use of the property that is the subject of the amendment clearly involves more than 10 acres and cannot qualify as a small-scale development amendment.

   2. Data and Analysis

      
      

      1. Petitioner also objects to the amendment as not being supported by relevant and appropriate data and analysis, as required by Section 163.3177(8) and (10)(e), Florida Statutes, and Florida Administrative Code Rule 9J-5.005(2). Paragraph (2)(a) of the rule requires that "plan amendments . . . shall be based upon relevant and appropriate data and the analyses

         applicable to each element." To be based on data "means to react to it in an appropriate way and to the extent necessary indicated by the data available on that particular subject at the time of the adoption of the . . . plan amendment at issue."

         Id.

         
         

      2. Petitioner points out that B & H has acknowledged (by

         
         

         way of answers to Requests for Admissions and stipulated facts in its Motion in Limine) that it did not present to the City any studies or data related to noise, traffic, property values, air pollution, or protected natural resources that may be impacted by, or attributable to, a concrete batch plant being placed on the subject property. She also argues that to the extent an analysis was made in the City's staff report (as to infrastructure demands, protection of wetlands and natural resources, traffic, financial feasibility, and compatibility), it was based on incorrect data or was otherwise insufficient.

      3. The City's planning consultant prepared the staff report for the City, which summarizes the data and analysis supporting the amendment. See § 1, Joint Exhibit E, which is a six and one-half page staff report. The analysis was performed on the premise that a concrete batch plant would be located on the subject property. The staff report indicates that "[t]he purpose of the amendment is to provide for the development of a concrete batch plant." See page 1, § 1, Joint Exhibit E.

      4. The staff report contains in summary form the data and analysis supporting the amendment. Section 1 reflects that the City relied upon (a) FLUM map sheet 7-5, which indicated that all adjacent lands except I-10 on the north side are in the RR land use category while lands in the vicinity are classified as LDR, MDR, Conservation, Public Lands, Industrial, and Commercial; (b) data reflecting that the existing use of land on the subject property is vacant and undeveloped; the larger B & H parcel contains a C & D landfill and is otherwise vacant; adjacent properties include numerous single-family homes and subdivisions, existing and planned multi-family projects, planned commercial uses, and a school; and wetlands are located in the northwest corner of the subject property; (c) data showing that the type of development on the property will be a concrete batch plant; (d) data showing that the amendment will "result in a significant decrease in potential demands on all City infrastructure systems" (potable water, sewer, solid waste, recreation/open space, drainage, and traffic) because it will eliminate potential future demands for residential units that would otherwise be allowed on the RR property; (e) data reflecting that the change in land use is compatible and suitable with adjacent lands because the proposed facility is "not adjacent to any homes, schools or other similar uses," and the adjacent properties are owned by B & H; (f) data showing

         that the site is generally level with an average elevation of

         
         

         100 feet; (g) data in the Soil Survey of Okaloosa County, Florida indicating that the soil "is suited for the planned use and development of the subject property"; (h) data reflecting that there is "a small area with wetland soils" in the northwest corner of the property which will not be developed; and (i) data indicating that there are no historic and archeological resources on the property.

      5. The consultant also reviewed the current Plan to determine if the plan amendment was consistent with all relevant provisions and concluded that the "amendment is consistent with and furthers the adopted Comprehensive Plan." He added that at the same time the small-scale amendment was being considered, the City was also considering a set of large-scale amendments

         to its Plan (presumably to the FLUM), and the data and analysis used for those amendments provide further support for the amendment being challenged. However, the nature of the large- scale amendments, and their underlying data and analysis, are not of record or otherwise identified. Finally, the City did not perform a concurrency analysis since it says that the Department no longer requires one at the amendment stage and instead defers that task until the development process begins. Whether the City specifically considered the concerns noted in the County's staff report recommending a denial of the land use

         change is not clear. However, the staff report discounted the notion that the amendment would encourage urban sprawl (or "spot zoning" in the words of the County staff report) since it promotes urban infill development.

      6. In response to a criticism by Petitioner, at hearing the City's consultant utilized further data from City sources, presumably available at the time the amendment was adopted, which indicate that the total available capacity for new customer usage from the City's water system is 3.2 million gallons per day, or far more than is necessary to meet the water requirements related to the proposed industrial usage. Without providing specifics, the consultant also opined that if the County is called upon to provide water to the site, as B & H now intends, it likewise has sufficient capacity to do so.

      7. In analyzing the impacts on infrastructure, the City assumed that a change from RR to IN, and the placement of a concrete batch plant on the property, would "result in a significant decrease in potential demands on all City infrastructure systems." The more persuasive evidence shows, however, that when comparing the new traffic that would be generated by potential residential units on the property versus a concrete batch plan, the latter would probably generate an increase of at least 110 vehicle trips per day, most by heavy trucks, which is more than five times the number of trips used

         in the City's analysis. In contrast, the staff report stated that the projected demands from development of the plant "[i]n theory, [could result in] up to 20 trucks trips per day" but this high a number was "not likely." In this respect, the data being used and analyzed were not correct or were incomplete, and the City's assumptions drawn from that data were flawed. Thus, as to these impacts, the amendment is not supported by adequate data and analysis. Although the staff report also failed to reflect the increased water usage that would be generated by the concrete batch plant, at hearing the City relied upon available data to show that both the City and County had sufficient capacity to provide water service for the plant.

      8. To a certain degree, compatibility and suitability overlap one another. "Compatibility" is defined in Florida Administrative Code Rule 9J-5.003(23) as "a condition in which land uses or conditions can coexist in relative proximity to each other in a stable fashion over time such that no use or condition is unduly negatively impacted directly or indirectly by another use or condition." This criterion is used to evaluate whether the proposed industrial land use is compatible with the uses on nearby or adjacent properties. On the other hand, subsection (128) of the rule defines "suitability" as "the degree to which the existing characteristics and limitations of land and water are compatible with a proposed use or

         development." This criterion requires a determination of whether the industrial land use category is suitable in this particular area, given the existing characteristics of the land.

      9. After reviewing and analyzing data on the issue of suitability and compatibility, the City concluded that because B & H owned all the lands around the site (except on the northern boundary which adjoined I-10), "adverse issues [not otherwise identified in the report] associated with compatibility should be minimized." To further support its finding of suitability and compatibility, the report went on to state that the subject property "is not adjacent to any homes, schools or other similar uses." While the data used by the City (such as the FLUM map) were adequate, the City did not react to it in an appropriate manner. The City is correct in concluding that a change to an industrial land use category may be suitable on land where a non-conforming borrow pit already exists. However, because the proposed industrial use is in "relative proximity" to rural residential land on three of its sides, a large residential subdivision that begins no more than 200 yards away, an access road used by numerous heavy trucks which lies only 140 feet south of the subdivision, and a single outlet for all traffic exiting the subdivision, school, and B & H property, it is fair to infer that there will be a direct or indirect negative impact on those adjacent or nearby uses in

         contravention of Florida Administrative Code Rule 9J-5.003(123). In this respect, the amendment is not supported by adequate data and analysis.

      10. The City's recognition of the wetlands area on the subject property, and its finding in the report that such lands would be protected if development occurs, constitutes sufficient data and analysis and appropriate reaction thereto to satisfy the statute and rule. Petitioner also contends there was no analysis related to the fact that Point Center Road, the private road used to access the parcel, crosses wetlands "at the bottom of the hills," and the wetlands will be impacted by the change. As pointed out at hearing, however, the road has been there "forever," and filling of the adjacent wetlands occurred many years ago, or long before B & H acquired the property. Other than paving the road if the land change is approved, no other "filling" will occur, and the City's assessment of this matter was sufficient.

      11. All other contentions by Petitioner regarding the lack of sufficient data and analysis to support the amendment have been considered and rejected.

   3. Financial Feasibility

      
      

      1. Section 163.3177(2), Florida Statutes, requires that "the comprehensive plan shall be financially feasible." Relying upon this statute, Petitioner contends that the City failed to

         analyze whether the amendment was financially feasible. According to Petitioner's expert, when a FLUM change is made, a financial feasibility analysis must be made, which requires that the local government make a facility-based analysis to demonstrate whether the local government has sufficient capacity for the change. Specifically, she argues that there is no commitment from the County to provide water, and that the City did not analyze whether the City or County has the capacity to provide sufficient water to serve a concrete batch plant.

      2. Although the staff report addresses this issue in summary fashion and without specifics, at hearing the City's planning consultant testified, without contradiction, that the total available capacity from the City's water system is 3.2 million gallons per day, or far more than is necessary to meet the potential water requirements of a concrete batch plant on the site. He also opined, without contradiction, that if the County is called upon to provide the water, it likewise has sufficient capacity to do so. Based upon this analysis of available data, it is found that financial feasibility was adequately addressed by the city.

   4. Intergovernmental Coordination

      
      

      1. Petitioner next contends that the City did not evaluate and coordinate the amendment with the County, as required by Section 163.3177(4)(a), Florida Statutes, Florida

         Administrative Code Rule 9J-5.015, and the Intergovernmental Coordination Element (ICE) of the City's Plan. The statute provides in part that "[c]oordination of the local comprehensive plan with the comprehensive plans of . . . the county . . . shall be a major objective of the comprehensive planning process." The two most relevant provisions in the Plan on this subject, both very general in nature, are ICE Goal 13.A., which states that a goal of the Plan is to "[p]rovide coordination of this plan (ordinance) with Okaloosa County, other local governments (as appropriate) and other governmental agencies providing services within the City[,]" and ICE Objective 13.A.1., which provides that the City shall "review, on an annual basis, actions that have taken place to coordinate the Comprehensive Plan of Crestview with the Plans of other units of government and the Okaloosa County School Board."

      2. Although the County was given constructive notice of B & H's annexation request through the publication of a notice in a local newspaper on July 7, 2007, there is no evidence that the County was given specific notice that an application for a change in the FLUM had been filed by B & H and was being processed by the City, or that the County was afforded an opportunity to provide input into that process, if it chose to do so. Given the unique circumstances here, coordination is especially important since the subject property is surrounded on

         three sides by County land designated as RR with Agricultural zoning, the requested change would create a small industrial pocket in the middle of County RR land, and the County staff had just prepared a report recommending denial of the same change before the City annexed the property. While the cited statute, rule, and Plan provisions clearly do not contemplate that adjacent local governments have veto power over the City's ability to enact plan amendments, or that the City is required to accept alternative suggestions proposed by other entities, at a minimum they contemplate that notice of changes be given to adjacent local governments, and that those local governments be afforded the right to offer input, if any, prior to consideration of the amendment. See, e.g., City of West Palm Beach et al. v. Department of Community Affairs et al., DOAH Case Nos. 04-4336GM, 04-4337GM, and 04-4650GM, 2005 Fla. ENV LEXIS 192 at *34-35 (DOAH July 18, 2005, DCA Oct. 21, 2005).

         Because there was no coordination here, even minimal, the adoption of the plan amendment contravened the cited statute, rule, and ICE Goal 13.A.

   5. Internal Consistency

      
      

      1. Petitioner next argues that, contrary to the requirement in Section 163.3187(2), Florida Statutes, that there be "internal consistency" within a plan, the amendment is inconsistent with the Plan in the following respects: quality

         of life (Legal Element Section 1.04); compatibility (FLUE Policy 7.A.1.2.c.); school siting (FLUE Policy 7.A.9.1.); and wetlands impacts (Conservation Element Goal 11.A and Objective 11.A.2.).

      2. Petitioner first contends that the amendment is inconsistent with the stated general intent and purpose of the Plan, which is found in Section 1.04 of the Plan's Legal Element. That Element contains a "whereas" clause, the Plan's title, jurisdiction for adopting the Plan, the City Council's intent in adopting the Plan, and its effective date. The Element indicates that it is intended to implement Florida Administrative Code Rule 9J-5.001, which sets forth the broad purposes of Florida Administrative Code Rule Chapter 9J-5. Section 1.04 provides in relevant part that the Plan is intended to "maintain and improve the quality of life for all citizens of the City" and to protect and promote the "public health, safety and general welfare of its citizens." This salutary language is so broad and aspirational in nature that the undersigned does not construe it, or other provisions in the Legal Element, as an appropriate basis for finding an amendment not in compliance. Petitioner's argument is accordingly rejected.

      3. Petitioner also argues that the amendment is inconsistent with the Plan's requirement that compatibility of adjacent land uses be ensured. FLUE Policy 7.A.1.2.c. appears to be the only Plan provision specifically dealing with this

         issue and it provides that the LDC shall contain detailed provisions to "ensure compatibility of adjacent land uses."

         B & H and the City take the position that during the zoning and development phase of the process (rather than during the plan amendment stage) the LDC would be used to ensure compatibility, as required by the Plan. However, the issue of compatibility was analyzed by the City and presented to the City Council, and the staff report contains an entire section on compatibility and suitability. See Finding of Fact 30, supra; § 1, pages 3-4, Joint Exhibit E. Therefore, it is appropriate to consider at the plan amendment stage whether the change in land use is compatible with adjacent or nearby properties.

      4. As noted earlier, Antioch Estates is a low-density residential subdivision directly to the east of the B & H parcel. At its closest point, the subject property is around

         200 yards from the subdivision. The distance from the subdivision to the proposed concrete batch plant is less than a quarter-mile. At the same time, the road over which the heavy trucks will travel to and from the industrial site is no more than 140 feet south of the southern boundary of the subdivision, and the connecting road eventually terminates at an outlet onto Antioch Road shared by traffic from the subdivision and school. Finally, B & H acknowledges that the proposed change here is a precursor to a request for annexation of the larger parcel into

         the City and a change in the land use on the larger parcel (except for the land fill) to industrial. This would leave the Enzor property (which is only 70 feet wide) as the sole remaining RR buffer with Antioch Estates. Given these considerations, the change in land use will not "[e]nsure compatibility of adjacent land uses," as required by FLUE Policy 7.A.1.2.

      5. Finally, Petitioner contends that the amendment is inconsistent with FLUE Policy 7.A.9.1.1., which provides that a "proposed school location shall be compatible with existing and projected uses of adjacent property." (Emphasis added). Since the Antioch Elementary School already exists, it appears that this provision has no application. For the same reason, Petitioner's contention that the amendment contravenes

         Section 1013.36(3), Florida Statutes, is also rejected. That statute requires that a new school should not be sited adjacent to factories or other properties from which noise, odors, or other disturbances would be likely to interfere with the educational program. While compatibility issues with existing schools are relevant when a map change is being made, they can only be considered in the context of Plan provisions which directly apply to those issues.

4. Summary

1. In summary, because the amendment involves a use of more than 10 acres, it does not meet the criteria in

   Section 163.3187(1)(c)1., Florida Statutes; the amendment is not supported by adequate data and analysis with respect to impacts on infrastructure (traffic) and compatibility; the amendment contravenes the statutory, rule, and Plan requirement that it be coordinated with other local governments; and it is internally inconsistent with FLUE Policy 7.A.1.2.c., which requires compatibility of adjacent uses. All other contentions raised by Petitioner have been considered and rejected.

   CONCLUSIONS OF LAW

   
   

2. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Section 163.3187(3), Florida Statutes.

3. Section 163.3187(3)(a), Florida Statutes, provides in relevant part that "[a]ny affected person may file a petition with [DOAH] pursuant to ss. 120.569 and 120.57 to request a hearing to challenge the compliance of a small scale development amendment . . . ." The statute goes on to provide that "the parties to a hearing held pursuant to this subsection shall be the petitioner, the local government, and any intervenor." The parties have stipulated that Petitioner and Intervenor own property or reside within the City and submitted oral or written

   comments to the City prior to the amendment's adoption. Therefore, Petitioner and Intervenor are affected persons within the meaning of Section 163.3184(1)(a), Florida Statutes, and have standing to participate in this proceeding.

4. Under Section 163.3187(3)(a), Florida Statutes, the City's determination that the small scale amendment is in compliance is presumed to be correct. Further, this determination will be sustained unless "it is shown by a preponderance of the evidence that the amendment is not in compliance with the requirements of this act." Therefore, the test is whether the evidence supports or contradicts the determination of the City. Denig v. Town of Pomona Park, DOAH Case No. 01-4845GM, 2002 Fla. ENV LEXIS 220 at *4-5 (DOAH

   June 18, 2002, Admin. Comm. Oct. 23, 2002). This specific statutory burden of proof has been applied in this proceeding.

5. The Amended Petition alleges that the use of the property involves more than 10 acres in contravention of Section 163.3187(1)(c)1., Florida Statutes; that the amendment is not supported by adequate data and analysis in several respects; that the City failed to coordinate with the County in adopting the amendment; that the amendment is not financially (economically) feasible; and that the amendment conflicts with various provisions within the Plan.

6. For the reasons given in the Findings of Fact portion of this Recommended Order, the preponderance of the evidence supports a conclusion that the proposed amendment involves a use of more than 10 acres in violation of Section 163.3187(1)(c)1., Florida Statutes; that the amendment is not supported by adequate data and analysis as to traffic impacts and compatibility in contravention of Section 163.3177(8) and (10)(e), Florida Statutes, and Florida Administrative Code Rule 9J-5.005(2); that the City did not coordinate with the County in adopting the amendment, as required by Section 163.3177(4)(a), Florida Statutes, Florida Administrative Code Rule 9J-5.015, and the Plan's ICE; and that the amendment is internally inconsistent with FLUE Policy 7.A.1.2.c., which requires that adjacent land uses be compatible. Accordingly, it is concluded that in these respects Petitioner has met her burden of showing that the amendment is not in compliance with the requirements of Chapter 163, Florida Statutes. Denig, supra.

RECOMMENDATION

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

RECOMMENDED that the Administration Commission enter a final order determining that the small-scale development amendment adopted by the City by Ordinance No. 1370 on November 26, 2007, is not in compliance.

DONE AND ENTERED this 21st day of April, 2008, in Tallahassee, Leon County, Florida.

S

DONALD R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 21st day of April, 2008.

ENDNOTE

1/ All statutory references are to Florida Statutes (2007).

COPIES FURNISHED:

Barbara Leighty, Clerk

Growth Management and Strategic Planning The Capitol, Room 2105

Tallahassee, Florida 32399-0001

Jason Gonzalez, General Counsel Office of the Governor

The Capitol, Room 209 Tallahassee, Florida 32399-0001

Shaw P. Stiller, General Counsel Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 325

Tallahassee, Florida 32399-2100

Silvia Morell Alderman, Esquire Akerman Senterfitt

106 East College Avenue, Suite 1200 Tallahassee, Florida 32301-7748

Ben L. Holley, Esquire City Attorney

Post Office Box 1238 Crestview, Florida 32356-1238

William J. Dunaway, Esquire Partington, Hart, Larry,

Bond & Stackhouse Post Office Box 13010

Pensacola, Florida 32591-3010

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days of the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will render a final order in this matter.

Docket for Case No: 07-005779GM

Orders for Case No: 07-005779GM