STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
In re: Petition of the Viera ) Company, A Florida Corporation, ) to Establish a Community Development ) District within Seminole County, )
a Political Subdivision of the State ) CASE NO. 92-1031 of Florida, said Community Development )
District to be known as Dovera ) Community Development District. )
)
REPORT AND CONCLUSIONS
On March 12, 1992, a public hearing was held in this matter. The hearing was held in the Chambers of the Seminole County Commission, 1101 East First Street, Sanford, Florida, before James W. York, Hearing Officer of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Cheryl G. Stuart, Esquire
James C. Goodlett, Esquire HOPPING, BOYD, GREEN & SAMS
Post Office Box 6526 Tallahassee, Florida 32314
For Respondent: Lonnie Groot, Esquire
Assistant County Attorney Seminole County
1101 East First Street Sanford, Florida 32771
STATEMENT OF THE ISSUE
Whether the Petition to Establish the Dovera Community Development District meets the criteria established in Chapter 190, Florida Statutes.
PRELIMINARY STATEMENT
The Viera Company (Petitioner) filed its Petition to Establish the Dovera Community Development District with the Seminole County Board of County Commissioners on November 22, 1991. Petitioner is seeking the adoption of an ordinance by the Commission, pursuant to Section 190.005(2), Florida Statutes, to establish a community development district of approximately 410 acres.
Pursuant to a contract between Seminole County and the State of Florida, Division of Administrative Hearings (Division), the Division agreed to make available to the County a Hearing Officer to conduct an evidentiary public hearing and to deliver a report containing findings of fact and conclusions regarding whether the Petition meets the criteria established by Section 190.005(1)(c), Florida Statutes. The undersigned ordered a public hearing
scheduled in the City of Sanford for March 12, 1992. Petitioner was required to submit a filing fee and publish notice as provided by statute.
The hearing in this case was conducted in accordance with Chapters 120 and 190, Florida Statutes, for the purpose of taking oral and written testimony and public input and comment on the Petition. The contents of the Petition, including its attached exhibits, were admitted into evidence as Petitioner's Composite Exhibit B.
At the hearing, Petitioner presented the testimony of John R. Maloy, Brian
C. Canin, Fred A. Green, Dr. Henry H. Fishkind, and Gary L. Moyer. The full names and addresses of Petitioner's witnesses are attached to this report as Exhibit I. Petitioner also offered Exhibits A-I, which were admitted into evidence.
Seminole County did not present any witnesses or offer any testimony or other evidence.
At the commencement of the hearing, counsel for the County certified on the record that proper notice of the hearing had been accomplished. Petitioner also offered into evidence confirmation that public advertisement of the Notice of Local Evidentiary Public Hearing had been advertised in the Orlando Sentinel on February 15, 22 and 29 and on March 7, 1992.
At the commencement of the hearing, counsel for the County placed on the record the position of the Board of County Commissioners which was that the Commission had not taken action with regard to any findings that the proposed community development district was either consistent or inconsistent with the Seminole County Comprehensive Plan. The County also takes no position as to whether the proposed district is the best alternative available for delivering community development services and facilities.
During the first portion of the hearing, comments and questions were received from Wendy Radwan, a member of the public, concerning the widening of Chapman Road. In response, Ms. Redman was informed that specific issues regarding new construction and expansion of roadway facilities were previously reviewed as part of the Development of Regional Impact process and were not material issues for resolution in this proceeding. Ms. Radwan's name and address are attached to this Report as Appendix II.
Pursuant to notice, at the conclusion of the evidentiary hearing, a recess was taken and the hearing was reconvened at 7:00 p.m. in order to maximize the opportunity for public comment. No member of the public appeared and the hearing was formally concluded at 7:15 p.m.
Once established, the District would be an independent special taxing district authorized under chapter 190, Florida Statutes. See s. 190.003(6),
F.S. (1991). The District would have all of the powers set forth in Chapter 190, including but not limited to the ability to finance, own, operate and maintain certain infrastructure. See ss. 190.011-.012, F.S. With the Commission's consent, the District would have additional special powers, as authorized by Section 190.012(2), Florida Statutes, for the purpose of providing facilities for parks and recreation, security, and mosquito control.
All of the land in the proposed district will be developed as a Planned Unit Development pursuant to the terms and conditions of a Development of Regional Impact ("DRI") Development Order approved by the Commission on October
10, 1989, and executed March 13, 1990. The sole purpose of this proceeding was to consider the establishment of the District.
A transcript of the hearing was subsequently filed by the court reporter. The parties were given leave to file a Proposed Recommended Order no later than March 23, 1992. The County elected not to file a Proposed Recommended Order and the Petitioner filed its Proposed Recommended Order in a timely manner.
None of the testimony or other evidence offered by the Petitioner in this proceeding has been challenged or refuted in any manner. The undersigned has reviewed the proposed findings of fact submitted by the Petitioner in its Proposed Recommended Order and found such proposed findings to be an accurate reflection of the record in this case. The undersigned has therefore substantially adopted Petitioner's proposed findings of fact in this report. 1/
FINDINGS OF FACT
A The property which is the subject of the Petition in this case consists of approximately 410 contiguous acres. All of the subject property is located in unincorporated Seminole County.
Petitioner presented the testimony of John R. Maloy. Maloy is Corporate Vice President of A. Duda & Sons, Inc. and Executive Vice President of The Viera Company, positions he has held for approximately eight years. The Viera Company, the Petitioner, is a wholly owned subsidiary of A. Duda & Sons, Inc. Maloy is responsible for planning and disposition of real estate assets. He is also responsible for those projects which have reached the development phase. It was Maloy's responsibility in this matter to select and work with the team of professionals who prepared the Petition. He also reviewed the contents of the Petition and approved its filing.
Maloy identified Petitioner's Composite Exhibit B, which is a copy of the Petition and its attached exhibits as filed with the Commission. Maloy stated that, for purposes of clarification, a sentence should be added to page 3 of the Petition indicating that the current version of the Seminole County Comprehensive Plan is dated September, 1991. Maloy then testified that, to the best of his knowledge, the statements in the Petition and its attached exhibits are true and correct. Other witnesses testifying on behalf of Petitioner similarly confirmed the accuracy of the Petition and its attached exhibits, as supplemented at hearing.
The Viera Company, a Florida corporation, is owner of 100 percent of the real property to be included in the District. As required by statute, the owner has given its written consent to the establishment of the proposed District. Maloy was designated as the agent of The Viera Company to act on its behalf with regard to any matters relating to the Petition.
No real property within the external boundaries of the District is to be excluded from the District. All of the land to be included in the District is the subject of a DRI Development Order which has been approved by the Commission.
The five persons designated in the Petition to serve on the initial board of supervisors are:
Jack Maloy
135 Highway A1A North Satellite Beach, FL 32937
Don Spotts
1113 Tuskawilla Road Winter Springs, FL 32708
David Duda
7979 Dunstable Circle
Orlando, FL 32817
Tracy Duda
1601 Highland Road Winter Park, FL 32789
Donna Duda
2436 Mikler Road
Oviedo, FL 32765
All of them are residents of the State of Florida and citizens of the United States.
Existing residential communities are located on the north and west sides of the proposed District. To the south and east, the proposed District is generally bordered by the Seminole County Expressway and by a large undeveloped tract to the south. The land in the area to be included in the proposed District is currently undeveloped and is used for agricultural purposes, principally cattle grazing.
All of the land to be included in the District has been planned as a single, mixed-use community to be developed pursuant to a development order for the DLI Properties Development of Regional Impact approved by the Commission on October 10, 1989, and issued to Duda Lands, Inc. Duda Lands, Inc. is now The Viera Company.
Creation of the District will not constitute any change to the DRI development, its plan, its timing, its design, or anything else related to the DRI. The proposed District is a mechanism for financing infrastructure, and any change that might be made in the future would be subject to all requirements and conditions specified by statute. For example, establishment of the District will result in no change with respect to the present requirement that the District donate utility lines to the County.
The proposed development of lands to be included in the District contemplates construction of significant commercial and office/showroom space, together with some residential units and hotel rooms over a twelve-year period. Creation of theproposed District will not constitute any change in the basic character of the development.
With respect to the provision of infrastructure and services, it is presently anticipated that the CDD will construct or otherwise provide for a surface water management system, roads, street lighting, landscaping, culverts, and water and sewer facilities. With Seminole County's consent, the CDD will
also exercise other special powers, as authorized under Section 190.012(2), Florida Statutes, for the purpose of providing facilities for parks and recreation, security, and mosquito control. Capital costs of these improvements are presently intended to be borne by the District.
There is no intent to have the District apply for any of the private activity bond allocation monies available. Mr. Maloy testified that Petitioner has no intent to have the District exercise its ad valorem taxing authority. Mr. Maloy's unchallenged and unrefuted testimony in this regard is accepted.
From the perspective of The Viera Company, creation of the proposed District is important for the construction, operation, long-term management and maintenance of major infrastructure for the development. Mr. Maloy testified that the CDD the best alternative for delivering the needed community development facilities and services and that the creation of the CDD will also help ensure that District residents pay for the costs of the necessary infrastructure that will be constructed to serve them.
In the present economic climate, a developer's access to the money necessary for the provision of needed infrastructure is very limited. One of the few avenues available is the bond market. The CDD will permit access to this source of funds to provide capital to build the necessary infrastructure.
To address issues related to planning, Petitioner presented the testimony of Brian C. Canin. Canin is President of Canin Associates Urban and Environmental Planners, a planning and consulting firm. He has held that position since the firm's inception in 1980. Canin has extensive experience with Developments of Regional Impact and in planning and development of other large-scale projects, as well as in reviewing comprehensive plans. Canin was qualified at the hearing as an expert in land use planning.
Canin was coordinator for the consulting team which prepared the DLI Properties DRI. He prepared and submitted the application for development approval encompassing all of the property located within the external boundaries of the proposed district. He also participated in all of the hearings. With respect to the Dovera CDD petition, Canin worked as part of the project team, providing supporting materials for the Petition.
Canin identified Exhibit 5 to the Petition as a map prepared by Canin Associates for the DRI which depicts the land use plan for the proposed District. He indicated that Canin Associates later provided the map to Gee & Jenson (Engineers, Architects and Planners) for use in compiling the Petition.
Canin also identified an updated version of Exhibit 5 to the Petition. He indicated that the version contained as an attachment to the Petition was submitted with the DRI. In the course of the hearings held on the DRI and during the approval of the Master Plan, certain changes were made to the land uses. Petitioner's Exhibit E represents the land uses currently proposed and approved for the area encompassed by the proposed District.
Canin noted that the updated version of the land use plan includes a revision of the typical roadway section. Petitioner had been informed by County staff that the typical roadway section initially submitted by the developer did not meet the standards for a County road. The roadway section, which meets the standards for a county-owned road, was drawn to show that the road could meet those specifications without changing the amount of buildable acreage within the proposed development. This means that the existing right-of-way can accommodate
a change, if necessary, to meet County-owned road standards. There will be no change in the DRI requirements with respect to buildable acres.
Encompassing approximately 410 acres, the proposed land uses for the area within the Dovera CDD comprise a Planned Unit Development consisting of 512 multi-family residential units and related commercial, institutional, recreational, and other uses. The proposed development includes over 247,000 square feet of commercial space and more than two million square feet devoted to office and office/showroom space. The plan also includes 250hotel rooms. The development is set within environmental open spaces that are integrated into stormwater facilities and roadways.
A copy of the September, 1991 Seminole County Comprehensive Plan was admitted into evidence as Petitioner's Exhibit F. Based on his review of the Seminole County Comprehensive Plan, Canin testified that the proposed district is consistent with the Seminole County Comprehensive Plan. In addition, project approval required numerous reviews in the course of the DRI process, as well as various hearings conducted by the County Land Planning Agency and Board of County Commissioners. Unless the project had been consistent with the Seminole County Comprehensive Plan at all these points in time, the developer would not have been allowed to proceed.
Canin also testified that he had reviewed the State Comprehensive Plan found in Chapter 187, Florida Statutes, and that, in his opinion, the proposed District is consistent with the State Comprehensive Plan. He noted that Section 187.201(18), Florida Statutes, provides for the creation of partnerships among local governments and the private sector which would identify and build needed public facilities. Canin also identified Section 187.201(20) which encourages the coordination of transportation infrastructure to provide major travel corridors and enhance system efficiency. Coordination of the Red Bug Lake Road construction and the proposed District's involvement in its financing are examples of how the proposed district fulfills this policy.
Canin further testified that Section 187.201(21) permits the creation of independent special taxing districts as a means of lessening the burden on local governments and their taxpayers, and also encourages the use of such districts in providing needed infrastructure.
Based on his extensive experience with Developments of Regional Impact, Canin testified that creation of the proposed District will not constitute any change to the DRI development, its plan, its timing, its design, or anything else related to the DRI. The District's activities are subject to the regulatory and permitting authority of the county, including the DRI approval process.
From a land use perspective, the proposed District is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developable as one functional interrelated community. Requiring DRI approval, the project was designed from the outset using an integrated land use plan, the purpose of which was to integrate diverse systems into one common plan.
Canin testified that the proposed District is the best available alternative for delivering community development services and facilities to the area that will be served by the District. According to Mr. Canin, the proposed District will facilitate long-term financing of necessary infrastructure while providing a perpetual entity capable of operating and maintaining those systems and facilities. In Mr. Canin's opinion, private development would not be as
advantageous because a private developer could not provide the same guarantees with respect to long-term operation and maintenance.
Finally, based on his familiarity with the type and scope of development as well as the available services and facilities locate din the area of proposed development, Canin testified that the District's services and facilities will not be incompatible with the capacity and uses of existing local and regional community development services and facilities. He noted that transportation services were taken into account in the DRI process and are thoroughly integrated into the local comprehensive plan.
To address engineering-related matters, Petitioner offered the expert testimony of Fred A. Greene. Greene is President, Chairman, and Chief Executive Officer of Gee & Jenson Engineers-Architects-Planners, Inc., an engineering and planning firm. He has held these positions for a combination of sixteen years. Greene is a registered engineer in Florida and personally has been involved in a number of DRI-related projects. He has a wide range of experience in providing engineering services relating to the use and operation of special districts, including community development districts. He advises districts on construction matters, design and maintenance, beginning with permitting for major infrastructure. Greene was qualified at the hearing as an expert in civil engineering and in land development, specializing in special districts.
Greene played an active role in preparation of the documents required to establish the Dovera CDD. He visited the site and reviewed designs prepared by others for the water management system, the roadway system, and the water and sewer facilities. He also assisted in the preparation of the cost estimates contained in the Petition.
The land within the proposed District is not presently developed and is primarily used for cattle operations. The land uses adjacent to the proposed district include residential communities to the north and west. The Seminole County Expressway is east of the proposed District and the land to the south is vacant.
The existing drainage basins and outfall canals, the existing major trunk water mains, sewer interceptors and lift stations are identified in Petitioner's Composite Exhibit B, attached Exhibit 6. The land presently is drained by a series of ditches installed for agricultural purposes, the water flowing from west to east before discharging through Bear Creek into Lake Jessup.
The proposed District is currently expected to construct the water management system, water and sewer facilities, internal roadways, security, mosquito control, and parks and recreation facilities.
Seminole County will provide potable water through the existing twelve-inch lines. The District will construct water mains along the internal roads and later transfer title to the County. There is no plan to have the District provide water service to the development.
With respect to the provision of sewer service and facilities, Petitioner plans to have the District construct a collection system along with lift stations and force mains that will discharge to the County's Iron Bridge Treatment Plant. These facilities will also be dedicated to the County. There is no plan to have the District provide sewer service to the development.
The Petitioner plans to have the District construct and/or maintain within its boundaries a system of lakes, dry retention areas, wet retention areas, wetlands, flowways, culverts and control structures to accommodate surplus stormwater. Discharge would be through control structures and flow north through a system of existing canals to Lake Jessup.
The Petitioner also expects the District to be involved in the construction and maintenance of roads. The roads would be constructed to applicable Seminole County standards, and to the extent that the roads remain district roads, the District will maintain them. The Seminole County Expressway is a N/S roadway presently under construction along the eastern boundary of the District. Realigned Red Bug Lake Road is presently under construction by Seminole County pursuant to a joint infrastructure agreement with Duda Lands, Inc. The agreement requires cost participation on that part of realigned Red Bug Lake Road which runs through the District. The District is expected to assume the developer's responsibility for that portion of realigned Red Bug Lake Road which runs through the District.
The proposed District expects to purchase a truck and sprayer to assist in mosquito control within its boundaries. The District will be responsible for this activity, either by contract or by using its own staff.
The proposed District currently plans to construct, operate and maintain facilities for parks and recreation. These facilities may include passive parks, playgrounds, pedestrian systems, bike paths, boardwalks and nature trails.
With respect to the proposed District's current plans for security, in addition to gates, fences and similar installations related to security, the District may supplement security with additional staff and, where practical, may install automatic security devices.
Exhibit 7 to the Petition shows the estimated infrastructure construction schedule and costs for the proposed District based on 1991 dollars. The anticipated schedule is for work to be performed by the Dovera CDD over the next twelve years. Unlike the DRI which has phases triggered by trips, the CDD phasing is premised on financing and construction engineering. However, the anticipated timetable in Exhibit 7 to the Petition is consistent with the schedule for development of the land.
Based on his experience with special districts and DRI-related projects, Greene testified that creation of the proposed District will not constitute any change to the DRI development, its plan, its timing, its design, or anything else related to the DRI.
Mr. Greene's unrefuted testimony established that the proposed District is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developable as a functional interrelated community. A large tract lying adjacent to a major expressway, having been planned as a DRI and approved subject to issuance of a development order, is developable as a functional interrelated community. In this instance, all of the infrastructure systems, including those serving nonresidential areas of the development, are interrelated and have been purposefully designed to function as a single system.
Greene's unchallenged testimony established that the proposed District is the best available alternative for delivering the proposed services and facilities to the area that will be served by the District. Although property-
owners' associations constitute one alternative for the delivery of community development services and facilities, they are unable to finance infrastructure. In addition, regional water management districts prefer to have CDDs provide services because of their stability and record for collection of assessments.
Being units of special-purpose local government, CDDs are generally perceived as being more stable than informal associations. While private development is another alternative, it cannot provide the same guarantees as CDDs with respect to operation and long-term maintenance of community development services and facilities.
It is Mr. Greene's opinion that the proposed District's community development services and facilities will not be incompatible with the capacity and uses of existing local and regional community development services and facilities. The project infrastructure will be designed and constructed to state or county standards for the various items of work and would therefore be consistent with the local development regulations and plans. The District will also be subject to all permit requirements and conditions of the development order.
Mr. Greene testified that the area to be served by the proposed District is amenable to separate special-district government because the area is large enough to support necessary staff to maintain and operate the proposed system. The District also has specific authority and a specific mission. Based on his experience with other districts of this size and larger that have been in existence for more than twenty years, Greene concluded that the proposed Dovera CDD will prove to be a successful operation.
Dr. Henry H. Fishkind, President of Fishkind & Associates, Inc., an economic and financial consulting firm, prepared and presented the economic impact statement which accompanied the Petition. In addition to providing economic forecasting services, Fishkind also provides financial advice to both public and private sector clients, including special districts. At the hearing, Fishkind was qualified as an expert in economics, financing and statistics, including infrastructure financing and the use of special taxing districts.
In addition to preparing the economic impact statement (EIS), Fishkind has assisted The Viera Company in assessing the financial feasibility of the proposed District. Fishkind confirmed the accuracy of the information contained in the EIS. The EIS was prepared, in part, to meet the statutory requirements of Chapter 120, Florida Statutes. At the hearing, Fishkind summarized the findings contained in the EIS.
Seminole County and the State of Florida were identified as the two governmental entities which would be affected by the processing of this Petition and ongoing review and oversight of the District. Seminole County received the Petition for review and was paid a $15,000 filing fee to cover expenses related to processing the application. This fee is expected to adequately cover those costs. The County will have the option of reviewing the District's proposed budget each year. Dr. Fishkind does not anticipate that the County will incur any other direct costs by virtue of establishment of the District.
Dr. Fishkind testified that Seminole County and its citizens will also receive some benefits by virtue of establishment of the District. The District will provide a mechanism to facilitate the financing and ongoing operation and maintenance of infrastructure for the project. In Dr. Fishkind's opinion, the District not only restricts the costs for needed facilities and services to those landowners who benefit from them, but, because it is an independent
special-purpose government, also frees the County from any administrative burden related to management of these facilities and services. In addition, the District should help to assure compliance with the development order conditions as they relate to infrastructure.
With respect to the State, the Bureau of Local Government Finance in the Office of the Comptroller will review certain financial reports that all special districts must file. The cost of processing one additional report will be minimal. In addition, the Department of Community Affairs ("DCA") also has certain reporting requirements with which the District must comply. The costs to the DCA are partially offset by a required annual fee imposed on all special districts.
The EIS also analyzed the expected costs and benefits to the citizens of Florida and the state at large. According to Dr. Fishkind's testimony, Chapter 190 encourages planned large-scale communities such as that within the proposed District, and the Dovera CDD would satisfy this legislative intent. The District is also intended to serve as a way to ensure that growth pays for itself, and that those who receive the benefits absorb the costs. Dr. Fishkind testified that, in addition to providing an improved level of planning and coordination and ensuring long-term operation and maintenance of needed facilities and services, the District would also promote satisfaction of state and local requirements for concurrency. Dr. Fishkind's unchallenged and unrefuted testimony in this regard is accepted.
Dr. Fishkind also analyzed costs and benefits to the Petitioner. The costs include preparation of the Petition and all of the underlying analysis devoted to the project by team members. Dr. Fishkind testified that, in addition, the Petitioner, as landowner, will be the largest single taxpayer for some time, and will bear the largest portion of the donation of certain rights- of-way and easements. The Petitioner is also expected to provide certain managerial and technical assistance to the District, particularly in the early years. Benefits to the Petitioner include the District's access to the tax exempt bond market and other capital markets which would otherwise be unavailable. Another benefit to the Petitioner flows from the assurance that concurrency requirements will be met and that a stable, long-term entity is in place to maintain necessary infrastructure.
Because any other similarly-situated landowner could also petition for establishment of a CDD, the granting of the Petition does not give this developer an unfair competitive advantage.
The anticipated costs and benefits to persons who ultimately buy land and/or housing or rent commercial space within the proposed District ("Consumers") were also analyzed. In addition to city, county, and school board taxes or assessments, Consumers will pay certain assessments for the construction and maintenance of necessary infrastructure. The consumers should, in turn, have access to first quality public facilities and high levels of public service in a development where the necessary infrastructure will be maintained even after the developer is no longer involved. Ultimately, the statute provides a mechanism where Consumers may control the board of supervisors and determine the type, quality and expense of essential district facilities and services, subject to County plans and land development regulations.
The EIS analyzed the impact of the District on competition and the open market for employment. Although there may be a transitory competitive
advantage because of lower cost financing and access to capital, any advantage is not exclusive to The Viera Company. Although the CDD itself will not have a measurable impact on the open market for employment in Seminole County, Dr.
Fishkind believes that access to capital markets may nonetheless have some positive effect on the development of employment. According to Dr. Fishkind, the District's potential effect on the open market for employment will likely be enhanced when compared to private development because CDDs are subject to government-in-the-sunshine and public bidding laws.
Similarly, while anticipating no measurable impact on small and minority businesses as a direct result of establishing the Dovera CDD, Dr. Fishkind testified that such businesses may be better able to compete in the development because the District must operate according to government-in-the- sunshine and public bidding laws.
Data supplied by The Viera Company and Gee & Jenson was used by Dr. Fishkind in performing his economic and financial analysis. Based on the result of his financial studies and analyses, Fishkind concluded that the proposed District is expected to be financially sound and able to fulfill its economic obligations.
The expected general financial structure of the proposed District is based on a system of special assessments to defray the costs of its infrastructure. These special assessments would be imposed pursuant to Chapter 190, using the procedures outlined under Chapter 170 or Chapter 197, and would be pledged to secure bonds issued for the necessary improvements. It is not anticipated that the District will use any ad valorem taxation. This proposed financial structure for the Dovera CDD is very similar to that used successfully in many other CDDs in Florida.
Dr. Fishkind testified that the financial structure is significantly different from that employed by a Tax Increment Financing District or TIF. A TIF is a dependent district the financial structure of which is premised on a "frozen" tax base of a particular area. TIF bonds are then repaid by the increase in real estate value within that area. This structure usurps certain taxes that would otherwise accrue to the local general-purpose government at large. TIFs are sometimes used in community redevelopment areas. Unlike a TIF, a CDD is actually an independent district with limited powers set out in the statute. A CDD's assessments and taxes do not in any way impact the County's taxing or assessment powers. Although a CDD may borrow money, the debts of a CDD cannot become the debt of any other governmental entity without its consent.
In addition to the proposed District, there are several other available alternatives for the provision of community infrastructure, including private development, homeowners' associations, county provision, and dependent districts such as MSTUs or MSBUs. Dr. Fishkind testified that, from a financial perspective, and based on an analysis of other options available, the proposed District is the best available alternative for delivering community development services and facilities to the area that will be served by the District.
According to Dr. Fishkind, of these alternatives, only a CDD allows for the independent financing, administration, operation and maintenance of infrastructure while permitting residents to exercise increasing control over the District's governing board. Although independent of the county commission and enabling district residents to exercise control as a governing board, a homeowners' association would not be capable of undertaking the financial responsibility necessary to pay for the required infrastructure. Private
developers do not have access to the tax-free bond market, and cannot provide the stability of long-term maintenance of infrastructure. Provision by the county or by a MSTU or MSBU would require the county to administer, operate and maintain the needed infrastructure.
Dr. Fishkind testified that, from a financial perspective, and based on a review of the applicable plans, the CDD is consistent with the State and Seminole County Comprehensive Plans. Although CDDs are not directly mentioned in the Seminole County Comprehensive Plan, the proposed District is consistent with the plan's intent that growth should pay for itself.
Based on his familiarity with the design of the proposed District and his experience with other districts of a similar size and configuration, Fishkind concluded that the area to be included in the District is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developable as one functional interrelated community. All the infrastructure for the proposed development has been planned as a unit and so should be expected to function as an interrelated system.
It was also Fishkind's opinion, after reviewing the availability of the existing community development services and facilities in the area to be served by the proposed District, that the community development services and facilities expected to be provided by the District are not incompatible with the capacity and uses of existing local and regional services and facilities. The current assistance provided by the developer with respect to the development of Red Bug Lake Road and the Seminole County Expressway provides an example of infrastructure compatibility.
Finally, taking into account the governing structure of the proposed District and the experience of other special districts in Florida, Fishkind concluded that the area that will be served by the proposed District is amenable to separate special-district government. It is Dr. Fishkind's opinion that an interrelated community created in compliance with a comprehensive master plan and specific infrastructure requirements represents an ideal circumstance within which to foster development of a CDD.
Petitioner also presented the testimony of Gary L. Moyer. Moyer is President of Gary L. Moyer, P.A., a firm engaged in providing consulting and management services to special districts. He provides numerous services to approximately 33 special districts, 25 of which are CDDs. These services include planning of infrastructure, financing, implementation and the award and oversight of construction contracts. Upon completion of construction, he oversees the day-to-day operation and maintenance of the infrastructure. He has provided these services for approximately fifteen years. At the hearing, Moyer was qualified as an expert in special district governance and management.
Moyer has been involved with CDDs ranging in size from only 28 acres to as many as 13,000 acres. Moyer testified that the proposed Dovera CDD would be an average size district among those providing primarily commercial and industrial land uses.
CDDs operate pursuant to statute and must comply with requirements similar to those imposed upon general-purpose local governments. CDDs issue bonds to finance necessary infrastructure and typically repay this bonded indebtedness through imposition of non ad valorem assessments. The collection of these non ad valorem assessments has been accorded equal dignity with the collection of property taxes.
Comparing other alternatives for the provision of community infrastructure, such as private development, property-owners' associations, and provision of services and facilities by local governments, Moyer testified that the proposed District is the best alternative for providing the contemplated services and facilities to the area that will be served by the District. The singular purpose of a CDD is to provide infrastructure to new communities. Although other entities may provide such facilities and services, none of them possess the focus which is characteristic of CDDs.
Moyer also concluded, based on his familiarity with the land area that is to be included in the proposed District and his experience with several CDDs having similar land use characteristics, that the area is amenable to separate special district governance.
Moyer also expressed the opinion, based on his experience as manager of other districts of similar size and configuration, that the area of land to be included in the proposed District is of a sufficient size, is sufficiently compact, and is sufficiently contiguous to be developed as one functional interrelated community. The District appears to have the ability to provide the necessary infrastructure in a cost-effective manner to the lands to be included within its boundaries.
With respect to the proposed District's anticipated use of County services, agreements with the tax collector and property appraiser for the collection of special assessments under Chapter 197, Florida Statutes, may be used. Such agreements are commonly used by other special districts. To the extent these services are used, the County is compensated by the District for these expenses.
CONCLUSIONS OF LAW
Based upon the totality of the record in this case and the lack of expressed opposition to the establishment of the subject community services district by Seminole County or any other person or entity, it is concluded:
That all statements contained within the petition are found to be true and correct.
That the creation of the district is consistent with applicable elements or portions of the Seminole County Comprehensive Plan.
That the area of land within the proposed district is of sufficient size, sufficiently compact, and is sufficiently contiguous to be developable as one functional, interrelated community.
That the district is the best alternative available for delivering community development services and facilities to the area that will be served by the district.
That the community development services and facilities of the district would be compatible with the capacity and uses of existing local and regional community development services and facilities.
That the area that will be served by the district is amenable to separate, special-district government.
DONE and ENTERED this 31st day of March, 1992, in Tallahassee, Florida.
JAMES W. YORK, 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 31st day of March, 1992.
APPPENDIX I: PETITIONER'S WITNESSES
John R. Maloy
The Viera Company
7380 Murrell Road, Suite 201
Melbourne, Florida 32940
Brian C. Canin
Canin Associates Urban and Environmental Planners
500 Delaney Avenue Orlando, Florida 32801
Qualified as expert in land use planning
Fred A. Greene Gee & Jenson
One Harvard Circle
West Palm Beach, Florida 33409
Qualified as expert in civil engineering and in land development, specializing in special districts
Henry H. Fishkind, Ph.D. Fishkind & Associates
12424 Research Parkway, Suite 275
Orlando, Florida 32826
Qualified as expert in economics, financing and statistics, including infrastructure financing and use of special taxing districts
Gary L. Moyer
10300 N.W. 11th Manor
Coral Springs, Florida 33071
Qualified as expert in special district governance and management
APPENDIX II: MEMBERS OF PUBLIC
Wendy Radwan
1904 Ayrshier Place
Oviedo, Florida 32765
PROPOSED RECOMMENDED ORDER *
* NOTE: Appendix III is available for review in the
Division of Administrative Hearing's Clerk's Office.
1 Petitioner's Proposed Recommended Order (with citations to the record) is attached to this report as Appendix III.
COPIES FURNISHED:
Cheryl G. Stuart, Esquire James C. Goodlett, Esquire HOPPING, BOYD, GREEN & SAMS
Post Office Box 6526 Tallahassee, Florida 32314
Lonnie Groot, Esquire Assistant County Attorney Seminole County
1101 East First Street Sanford, Florida 32771
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
In re: Petition of the Viera ) Company, A Florida Corporation, ) to Establish a Community Development ) District within Seminole County, )
a Political Subdivision of the State ) CASE NO. 92-1031 of Florida, said Community Development )
District to be known as Dovera ) Community Development District. )
)
ORDER CORRECTING REPORT AND CONCLUSIONS
On March 31, 1992, the undersigned issued a Report and Conclusions in this cause.
In Conclusion of Law Number 2 of the Report, it is concluded that the creation of the Dovera Community Development District is consistent with the applicable elements of the Seminole County Comprehensive Plan and, due to an oversight on the part of the undersigned, this paragraph failed to include the conclusion that the creation of the district is also consistent with the applicable provisions of the State Comprehensive Plan.
On April 7, 1992, Petitioner filed a Motion to Clarify the Report and Conclusions previously issued in this cause. In the Motion to Clarify, Petitioner correctly argues that the Findings of Fact in the Report support a
Conclusion of Law that the proposed district is consistent with the applicable elements of the State Comprehensive Plan. See, Findings of Fact Numbers 22 and 62.
Based upon the foregoing and pursuant to Rule 221- 6.032, F.A.C., Petitioner's Motion to Clarify is GRANTED, and Conclusion of Law Number 2, contained on page 28 of the Report and Conclusions previously issued in this case, is corrected to read:
2. That the creation of the district is consistent with applicable elements and portions of both the Seminole County and the State Comprehensive Plans.
DONE and ORDERED this 8th day of April, 1992, in Tallahassee, Florida.
JAMES W. YORK
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550 904/488-9675
FILED with the Clerk of the Division of Administrative Hearings this 8th day of April, 1992.
COPIES FURNISHED:
Cheryl G. Stuart, Esquire James C. Goodlett, Esquire HOPPING, BOYD, GREEN & SAMS
Post Office Box 6526 Tallahassee, Florida 32314
Lonnie Groot, Esquire Assistant County Attorney Seminole County
1101 East First Street Sanford, Florida 32771
| Issue Date | Proceedings |
|---|---|
| Apr. 08, 1992 | Order Correcting Report and Conclusions. |
| Apr. 07, 1992 | Motion to Clarify Report and Conclusions filed by Cheryl G. Stuart. |
| Mar. 31, 1992 | Report and Conclusions. Hearing held March 12, 1992. CASE CLOSED. |
| Mar. 23, 1992 | Proposed Recommended Order; Petitioner`s Notice of Filing Proposed Recommended Order filed by Cheryl G. Stuart. |
| Mar. 18, 1992 | Transcript & Exhibits filed. |
| Mar. 12, 1992 | CASE STATUS: Final Hearing Held. |
| Feb. 24, 1992 | Letter to Judge York from Lonnie N. Groot filed regarding the Transcript. |
| Feb. 19, 1992 | Notice of Hearing sent out. (hearing set for 3-12-92; 2:00p; Sanford, FL) |
| Feb. 18, 1992 | Petition for the Dovera Community Development District filed with supporting papers. |
| Feb. 13, 1992 | Division of Administrative Hearings/Seminole County Hearing Officer Agreement & Cover letter to Judge York from L. Groot filed. |
| Feb. 13, 1992 | Letter to L. Groot from Judge York attaching executed contract. |
| Issue Date | Document | Summary |
|---|---|---|
| Apr. 07, 1992 | Corrected RO | |
| Mar. 31, 1992 | Recommended Order | Where petitioner establishes that proposed community development district meets statutory criteria county should establish the district by ordinance. |
