Florida Cabinet upholds ruling that Escambia County failed to follow land-use change law

Jim Little
Pensacola News Journal

The Florida Cabinet unanimously upheld an administrative judge's ruling that Escambia County did not follow Florida law when it tried to delete a part of its land-use rules that discouraged development in rural areas.

The vote by the Cabinet on Tuesday makes the ruling by an administrative law judge in January 2020 the final word on the county's change to its 2030 Comprehensive Plan.

The comprehensive plan is a document that governs land-use policies in the county, and in 2020, Administrative Law Judge Suzanne Van Wyk issued a ruling that a change the county made in 2019 did not comply with Florida law.

The Florida Cabinet is a board of the state's top elected officials and is chaired by the governor. Under Florida's Constitution and laws, many decisions made by the government aren't official until approved by the Cabinet. 

Jacqueline Rogers talks about her challenge to an opt-out of Escambia County's sector plan at her home on Feb. 8, 2018.

In 2019, the Escambia County Commission voted to delete a policy under its comprehensive plan that said the county would not allow the development of new communities in land zoned for farming. 

Florida law requires a change to a county's comprehensive plan to be based on "data and analysis" and Van Wyk ruled the county failed to do that.

Van Wyk also rejected the testimony of the county's top planning official, saying his testimony was "unreliable and unpersuasive."

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The challenge to the change in the county's plan was brought by a group of Escambia County residents, including Jacqueline Rogers.

Rogers appeared before the Cabinet in Tallahassee on Tuesday to argue that the board vote to uphold the ruling.

"There was no data and analysis presented, no presentation by the staff to defend this amendment, but the County Commission still passed this 4-1 with no data and analysis," Rogers said.

Assistant County Attorney Kia Johnson spoke on behalf of the county and said the judge in the case wrongly rejected the testimony of the county's top planning official and that the policy change does not immediately impact any rural areas of the county.

"Whether or not the county will actually establish any new rural communities will depend upon whether a property owner proposes one in the future and whether the county approves that proposal based upon consideration of all elements of our comprehensive plan," Johnson said.

Rogers also argued that if not for the objections raised by her group, the change would have been allowed, even though it violated the law because, since 2011, the Florida Department of Economic Opportunity only reviews how land-use changes affect state property.

"So the burden is on us, and I'm just asking this commission that DEO needs to be empowered again to review plan amendments for consistency," Rogers said.

Gov. Ron DeSantis was the only member of the Cabinet to weigh in on the topic when he said he supported making the judge's order final.

"I think that basically (the judge) just followed the law," DeSantis said. "I'm agnostic about the policy, but I had no problem with what they (the judge) did."

Since the judge's ruling, Escambia County has hired a consultant to do the data and analysis that the judge found it failed to do in 2019.

A new ordinance has been proposed that would repeal the prohibition on creating rural communities and create a new land-use category called rural residential. The new code would allow homes to be built on four acres of land rather than the current 20 acres required in farming areas.

The planning board approved the measure in January in a 4-2 vote. It is scheduled to come before the County Commission at 5:30 p.m. Thursday.

Jim Little can be reached at jwlittle@pnj.com and 850-208-9827.