STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

RE: ESTABLISHMENT BY RULE OF ) FIDDLER'S CREEK COMMUNITY )

DEVELOPMENT DISTRICT, ) CASE NO. 95-6106

)

REPORT TO THE FLORIDA LAND AND WATER ADJUDICATORY COMMISSION

Pursuant to Section 190.005(1)(d), Florida Statutes, Robert E. Meale, Hearing Officer of the Division of Administrative Hearings, conducted a local public hearing, in Naples, Florida, on February 28, 1996.

APPEARANCES

For Petitioner: Kenza van Assenderp

Young, van Assenderp & Varnadoe, P.A. Post Office Box 1833

Tallahassee, Florida 32302-1833

For Collier County: David Weigel

County Attorney Collier County

3301 East Tamiami Trail Naples, Florida 33962

STATEMENT OF THE ISSUE

The issue in this case is whether the Florida Land and Water Adjudicatory Commission should promulgate a rule establishing the Fiddler's Creek Community Development District.

PRELIMINARY STATEMENT

By Petition for Rulemaking to Establish a Uniform Community Development District dated November 30, 1995, Petitioners requested the Florida Land and Water Adjudicatory Commission to adopt a rule to establish a uniform community development district.

Following notice, a local public hearing took place in Naples, Florida.

Members of the public attending the hearing were five members of the League of Women Voters of Collier County and one member of the Marco Island Taxpayers' Association.

Petitioners presented five witnesses and offered into evidence Petitioners Exhibits A-N, all of which were admitted. The names and addresses of the witnesses are listed in Appendix A, and the exhibits are listed in Appendix B.

The hearing officer granted Petitioners' request at the hearing to amend their petition following the hearing. Petitioners adequately described at the hearing the possible amendments and subsequently filed an amended petition. The amended petition reduces the size of the proposed CDD from 1611 areas to 1390 acres.

The transcript was filed March 6, 1996.

Petitioners filed a proposed report. The hearing officer rejected Petitioners' proposed findings not incorporated in this report because they were, most frequently, recitations of subordinate evidence or less frequently, irrelevant or unsupported by the appropriate weight of the evidence.

The League of Women Voters of Collier County filed a letter on March 11, 1996, commenting on the proposed community development district. The hearing officer rejected the League's proposed findings as unsupported by the appropriate weight of the evidence.

References in the report to "Tr." are to the cited page of the transcript.

References to "Q." are to the cited question and answer contained in that witness's prepared testimony.

1. Summary of Record

   
   

   1. Petition

      
      

      1. On November 30, 1995, Petitioners GB 100, Inc. and Parcel Z, Inc., as general partners of 951 Land Holdings Joint Venture, filed with the Florida Land and Water Adjudicatory Commission (FLWAC) a Petition for Rulemaking to Establish a Uniform Community Development District (Petition).

         
         

      2. The Petition proposes the creation of the Fiddler's Creek Community Development District. The Petition alleges that the land to be served by the proposed community development district (CDD) is bordered on the north by U.S. Route 41, on the east by agricultural properties, on the south by a wetland preserve owned by the State of Florida, and on the west by State Road 951, residential properties, and recreational properties. The proposed CDD is one mile west of the northeast corner of the Collier-Seminole State Park and about one mile east of the Rookery Bay National Estuarine Research Reserve.

         
         

      3. Exhibit 2 attached to the Petition discloses that the proposed CDD would comprise three distinct parcels. The Petition alleges that the proposed CDD covers 1611 acres. However, Exhibit 2 discloses net acreage of 1622.8 after adding the acreages for the three parcels and subtracting the acreages for the two excluded parcels.

         
         

      4. Parcel 1 is the largest parcel contained in the proposed CDD. It is an irregularly shaped parcel, whose center is shaped roughly as a one-mile square. According to Exhibit 2, Parcel 1 consists of 1664.6 acres.

         
         

      5. The center of Parcel 1 consists of all of Section 14, Township 51 South, Range 26 East, except for nearly the entire northern one-eighth of the section. A strip of land about 1400 feet wide runs approximately one mile north of the center of Parcel 1. The northern boundary of the strip provides the proposed CDD's sole frontage on U.S. Route 41.

         
         

      6. Another strip roughly 1400 feet wide runs about 2700 feet west of the center of Parcel 1. At the extreme northwest corner of this strip is an excluded enclave of 0.4 acres owned by Lee County. This parcel contains a pump station. The Petition alleges that the exclusion of this tiny enclave has no negative impact on the proposed CDD.

      7. A 1700-foot wide strip extends about 4200 feet west of the southwest corner of the center of Parcel 1. The westerly border of this strip provides the proposed CDD's sole frontage along State Road 951. State Road 951 runs south from U.S. Route 41 to Marco Island.

         
         

      8. The center of Parcel 1 includes approximately half of Section 23, which is directly south of Section 14. The portions of Section 23 included in the proposed CDD are an irregularly bordered strip containing the northern quarter of the section and an irregularly bordered peninsula extending into the center of Section 23 from the east.

         
         

      9. The peninsula-shaped portion of Parcel 1, which is almost entirely in Section 23, shall be referred to as the Peninsula. The Peninsula runs about 4000 feet in a southwest to northeast direction. The width varies considerably, but averages about 1500 feet.

         
         

      10. The remainder of Parcel 1 of the proposed CDD consists of a little more than the northern half of Section 24, which adjoins the southeast corner of the center of Parcel 1.

          
          

      11. Parcels 2 and 3 of the proposed CDD are each 0.8 acres. Parcel 2 is separated from the extreme southeast corner of Parcel 1 by about 200 feet. Parcel 3 is directly south of Parcel 2, from which it is separated by about 70 feet. Directly west of Parcels 2 and 3 is a 43-acre parcel owned by Southern States Utilities.

          
          

      12. The Petition alleges that the owners of all of the real property to be included in the proposed CDD have given written consent to the establishment of the Fiddler's Creek CDD. An exhibit to the Petition contains a certificate from Petitioners that they own the land proposed to be included in the District.

          
          

      13. A copy of an attached deed dated November 9, 1989, from Deltona Corporation, Petitioners' claimed predecessor in interest, to City National Bank of Florida, as trustee, covers 244 acres within Parcel 1. This land is a golf course. The instrument requires City National Bank to join Deltona in any petitions to create a CDD.

          
          

      14. A copy of an agreement between Petitioners and the Lee County School Board covers tracts of 12 and 36 acres. The 12- acre tract is where the Peninsula joins the portion of Parcel 1 in Section 24, which is southeast of the center. The 12-acre tract would be an enclave if excluded from the proposed CDD.

          
          

      15. The 36-acre tract is also in Parcel 1, although it is not an enclave. The 36-acre tract runs south from the north border of the strip of land running westerly to State Road 951 from the center of Parcel 1.

          
          

      16. The agreement with the Lee County School Board treats the two tracts differently. The agreement is that Petitioners will purchase another parcel of land, which Petitioners will then exchange with the School Board for the 36-acre tract. The School Board has the right to determine what property is suitable for the exchange. The School Board may choose to convey the 12-acre tract at anytime, but is not required to do so.

      17. The agreement permits Petitioners to include both tracts in the proposed CDD, "provided that the [School] Board does not become obligated for any costs or assessments resulting therefrom . . .." In the agreement, the School Board agrees to consent to and join in any petitions concerning both tracts.

          
          

      18. The Petition names persons to serve on the initial Board of Supervisors.

          
          

      19. The Petition identifies the main trunk water lines and sewer interceptors and outfalls on the property to be serviced by the proposed CDD. Exhibit 4 to the Petition depicts the location of these public facilities.

          
          

      20. The Petition sets forth in Exhibit 5 a timetable and schedule of costs for the construction of the proposed facilities. Total costs projected for the construction period of 1995-2002 are $47.1 million for clearing, excavation, roads, water, sewer, effluent, irrigation, drainage, landscaping, and contingency. The largest projected sums are for excavation ($14.3 million), roads ($9.9 million), and landscaping ($7.6 million). Water and sewer are $2.6 and $3.0 million, respectively.

          
          

      21. The Petition alleges that Exhibit 6A is the future land use map of the Collier County Comprehensive Plan. The Petition incorrectly alleges that the local plan designates the entire proposed CDD as Urban Coastal Fringe. In fact, the western half of the Peninsula is designated Conservation, whose sole subcategory is "Lands Acquired for Conservation." The remainder of the proposed CDD is designated Urban Coastal Fringe, but the future land use map imposes "Areas of Environmental Concern" overlays on the entire Peninsula and the western halves of the two strips running west from the center of Parcel 1. Exhibit 6B attached to the Petition is a letter from the Department of Community Affairs determining that the Collier County Comprehensive Plan is in compliance.

          
          

      22. The Petition includes Exhibit 7, which is an economic impact statement.

          
          

      23. The Petition includes Exhibit 8, which is an unsigned acknowledgement that the water and sewer operations of the proposed CDD are subject to the Collier County Water-Sewer District.

          
          

      24. Last, the Petition alleges that Petitioners paid $15,000 to Collier County on November 30, 1995, as filing fees for the request to FLWAC that it promulgate a rule to approve the Fiddler's Creek CDD.

          
          

      25. With leave of the hearing officer, Petitioners filed on March 18, 1996, an Amended Petition for Rulemaking to Establish a Uniform Community Development District (Amended Petition).

          
          

      26. The Amended Petition reduces the size of the Fiddler's Creek CDD from 1611 acres to 1390 acres. The changes are from recalculating the acreage of Parcel 1 from 1664.6 to 1687.5 acres and subtracting 12 acres for the School Board parcel in the Peninsula and 244 acres for the golf course in Parcel 1. The acreage cited in the Amended Petition for the proposed CDD now corresponds to the acreage cited in Exhibit 2.

      27. The Amended Petition makes only two other material changes. The Amended Petition deletes a reference to a Southern States wastewater effluent transmission main and corrects Table 2 in Exhibit 7, the economic impact statement.

          
          

      28. Exhibit 2 to the Amended Petition depicts the excluded golf course enclave. The 244-acre golf course consists of four large parcels nearly encircling three large areas of the proposed CDD. The golf course occupies almost half of the center of Parcel 1. Exhibit 2 depicts the 12-acre excluded enclave owned by the School Board in the Peninsula, but not the 36-acre parcel in the strip running west from the center of Parcel 1 to State Road 951.

          
          

      29. On February 6, 1996, the Collier County Commission held the optional local public hearing on the proposed CDD. At the conclusion of the optional local public hearing, Collier County decided not to adopt a resolution and not to file any statement in support of or opposition to the proposed CDD.

          
          

      30. Petitioners duly advertised the local public hearing conducted by the Division of Administrative Hearings on February 28, 1996, in an appropriate local newspaper in the four weeks immediately prior to the local public hearing. Publication dates were February 5, 12, 19, and 26, 1996. The Secretary of FLWAC published in the Florida Administrative Weekly on February 9, 1996, notice of the local public hearing.

          
          

   2. Evidence from the Local Public Hearing

      
      

      1. The Collier County Growth Management Plan contains a Future Land Use Element (FLUE) that describes the meaning of the future land use designations on the future land use map.

         
         

      2. The FLUE describes the "Urban Coastal Fringe" as follows:

         
         

         The purpose of this subdistrict is to provide transitional densities between the Conservation Designated Area and the Urban Designated Area. It includes that area south of US 41 between the City of Naples and Collier-Seminole State Park, including Marco Island.

         
         

         In order to facilitate hurricane evacuation and to protect the adjacent environmentally sensitive

         Conservation Designated Area, residential densities in this area will be limited to a maximum of 4 dwelling units per acre. Rezones are recommended to be in the form of a Planned Unit Development.

         
         

      3. The FLUE describes the "Conservation" designation as follows:

         
         

         The overall purpose of the Conservation Designation is to conserve and maintain the natural resources

         of Collier County and their associated environmental and recreational benefits. All native habitats possess ecological and physical characteristics

         that justify attempts to maintain these important natural resources.

         Barrier islands, coastal bays and wetlands deserve particular attention because of their ecological value and their sensitivity to perturbation. It is because of this that all proposals for develop-

         ment in the Conservation Designation must be subject to rigorous review to ensure that the impacts of

         the development do not destroy or unacceptably degrade the inherent functional values.

         
         

         The Conservation Land Use Designation is intended to protect certain vital natural resource areas of the County owned by the public. . . . The Conser- vation Designation will accommodate future non-

         residential uses including essential services . . .; parks, open space and recreational use; community facilities such as churches, cemeteries, schools, fire and police stations; utility and communication facilities; earth mining; agriculture; and oil extraction and related process. The boundaries of the Conservation District may periodically change

         as properties are acquired.

         
         

      4. The FLUE describes the "Areas of Environmental Concern Overlay" as follows:

         
         

         . . . Primarily, these represent coastal beaches, marshes, hardwood swamps and cypress forests;

         wet prairies and low pinelands; and brackish marshes. . . . This overlay does not constitute new development standards. . . .

         
         

      5. The Future Land Use Map reveals that the proposed CDD is at the extreme southeast corner of the Urban area in Collier County. South of the proposed CDD is undevelopable Conservation area, except for a parcel slightly smaller than the proposed CDD that is Urban Coastal Fringe and, farther south, Marco Island, which is also Urban Coastal Fringe. East of the proposed CDD is Agriculture/Rural use, which is developable at lesser densities and intensities than are permitted in Urban areas. North of the proposed CDD is additional Urban Coastal Fringe, but directly north of U.S. Route 41 is a large area of Urban Coastal Fringe with a large environmental overlay, plus a smaller area of Urban Residential. West of the southern half of the proposed CDD is undevelopable Conservation and developable Urban Coastal Fringe subject to an environmental overlay. West of the northern half of the proposed CDD is Urban Coastal Fringe.

         
         

      6. Future Land Use Map 4, which depicts natural resources, discloses that a portion of the two strips running west from the center of Parcel 1 of the proposed CDD occupy brackish marshes, as does a portion of the Peninsula. It is difficult to determine if any other parts of the proposed CDD occupy brackish marshes or if any parts of the proposed CDD occupy mangrove swamps, which extend to the vicinity of the south border and southeast corner of the proposed CDD. The proposed CDD is entirely in the coastal management area.

         
         

      7. Future Land Use Map 2, which depicts existing and planned public facilities, shows two school planned for the immediate vicinity of the proposed CDD, as well as a planned fire station and existing airport to the south.

      8. Capital Improvement Element (CIE) Policy 1.4.4 requires the County to determine, before issuing building permits, whether there is sufficient capacity in terms of water, sewer, drainage, roads, solid waste, and recreation facilities. CIE Policy 1.5.1 imposes the requirement of concurrency with respect to water, sewer, drainage, and solid waste. CIE Policies 1.5.2 and

         1.5.3 impose more relaxed concurrency standards for recreation and roads, respectively.

         
         

      9. Sanitary Sewer Subelement Policy 1.1.8 requires that CDDs providing sewer service must connect to the Collier County Water-Sewer District regional system, and the CDD must convey to Collier County all facilities for operation and ownership, in accordance with cited ordinances. Potable Water Subelement Policy 1.2.6 provides identically for potable water systems.

         
         

      10. Sanitary Sewer Subelement Objective 1.5 is for the County to "discourage urban sprawl and the proliferation of private sector sewer service suppliers in an effort to maximize the use of existing public facilities "

          Policy 1.5.1 is to allow central sanitary sewer systems only in the Urban areas. Potable Water Subelement Objective 1.5 and Policy 1.5.1 provide identically for potable water systems.

          
          

      11. A map reveals the county pump station in the northerly strip running west of the center of Parcel 1. Another map indicates that a small area near or in the proposed CDD is already served by the County water transmission and distribution system.

          
          

      12. The Traffic Circulation Element identifies a 3.2-mile segment of State Road 951, from New York Drive to the Marco Island Bridge, as deficient, operating at level of service D. The northern end of this segment appears to be just south of the southeast corner of the proposed CDD. The element notes that Florida Department of Transportation has expedited its plans to reconstruct this "backlogged" segment to add to its capacity.

          
          

      13. However, the remaining segments of State Road 951 and U.S. Route 41 in the area of the proposed CDD have unused capacity. Two segments of State Road 951 between U.S. Route 41 and the backlogged segment operate at level of service

          B. North of State Road 951, U.S. Route 41 is at level of service A. South of State Road 951, U.S. Route 41 is at level of service B.

          
          

      14. Map TR 7A of the Traffic Circulation Element is the 2010 Financially Feasible Map. According to the revised economic impact statement, final infrastructure expenditures for the proposed CDD will take place in 2008. The 2010 Financially Feasible Map shows U.S. Route 41 as a six-lane arterial north of State Road 951 and a four-lane arterial south of State Road 951. This map shows State Road 951 as a six-lane freeway from U.S. Route 41 to the Marco Island Bridge. North of U.S. Route 41, the road becomes County Road 951 and runs east of downtown Naples to the Lee County line. County Road 951 is a six- lane freeway south of I-7, at which there is an interchange, and then turns into a four-lane arterial.

          
          

      15. Section 187.201 is the State Comprehensive Plan. Various provisions apply in varying degrees to the proposed CDD. Section 187.101(3) requires that the goals and policies of the State Comprehensive Plan be "reasonably applied where they are economically and environmentally feasible, not contrary to the public interest, and consistent with the protection of private property rights." This subsection adds: "The plan shall be construed and applied as a whole, and

          no specific goal or policy in the plan shall be construed or applied in isolation from the other goals and policies in the plan."

          
          

      16. Section 187.201(16)(a) identifies the goal:

          
          

          In recognition of the importance of preserving the natural resources and enhancing the quality

          of life of the state, development shall be directed to those areas which have in place, or have agree- ments to provide, the land and water resources, fiscal abilities, and service capacity to accom- modate growth in an environmentally acceptable manner.

          
          

      17. Section 187.201(16)(b)1 is to "[p]romote state programs . . . and development . . . activities which encourage efficient development and occur in areas which will have the capacity to service new population and commerce." Section 187.201(16)(b)2 is to "[d]evelop a system of incentives and disincentives which encourages a separation of urban and rural land uses while protecting water supplies, resources development, and fish and wildlife habitats." Section 187.201(16)(b)6 is to "[c]onsider, in land use planning and regulation, the impact of land use on water quality and quantity; the availability of land, water, and other natural resources to meet demands; and the potential for flooding."

          
          

      18. Section 187.201(18)(a) identifies as a goal that Florida "shall protect the substantial investments in public facilities that already exist and shall plan for and finance new facilities to serve residents in a timely, orderly, and efficient manner."

      
      

      49. Section 187.201(18)(b)4 is:

      
      

      Create a partnership among state government, local governments, and the private sector which would identify and build needed public facilities and allocate the costs of such facilities among the partners in proportion to the benefits accruing to each of them.

      
      

      50. Section 187.201(18)(b)6 is to "[i]dentify and implement innovative but fiscally sound and cost- effective techniques for financing public facilities."

      
      

      51. Section 187.201(21)(b)2 is to:

      
      

      Allow the creation of independent special taxing districts which have uniform general law standards and procedures and do not overburden other govern- ments and their taxpayers while preventing the proliferation of independent special taxing districts which do not meet these standards.

      
      

      1. Section 187.201(10)(a) identifies the goal that Florida "shall protect and acquire unique natural habitats and ecological systems, such as wetlands . .

         .." Section 187.201(10)(b)1 is to "[c]onserve forests, wetlands, . . . and wildlife to maintain their environmental, economic, aesthetic, and recreational

         values." Section 187.201(10)(b)7 is to "[p]rotect and restore the ecological functions of wetlands systems to ensure their long-term environmental, economic, and recreational value." Section 187.201(20)(b)12 is to "[a]void transportation improvements which encourage or subsidize increased development in . . . identified environmentally sensitive areas such as wetlands [or] floodways . .

         .."

         
         

      2. Section 187.201(9)(b)4 is to protect coastal resources from the adverse effects of development. Section 187.201(9)(b)5 is to "[d]evelop and implement a comprehensive system of coordinated planning, management, and land acquisition to ensure the integrity and continued attractive image of coastal areas." Section 187.201(9)(b)6 is to "[e]ncourage land and water uses which are compatible with the protection of sensitive coastal resources."

         
         

      3. Mr. Robert Duane, Petitioners' land use planner, endorsed the proposed CDD as to all six statutory criteria, which are discussed below. In general, his testimony was persuasive. However, he erroneously asserted that the proposed CDD was designated exclusively Urban Coastal Fringe (Tr. 52) and reversed the locations of the 12- and 36-acre tracts owned by the School Board (Q. 43 and Q. 48, where he incorrectly identified the 36-acre tract as an enclave and also erroneously referred to the western parcel as an enclave).

         
         

      4. Mr. Duane discussed in his prepared testimony the suitability of the proposed CDD in an "Urban Area" (Q. 68), but failed to address the suitability of the proposed densities and intensities for the Fiddler's Creek community in terms of the allowable density (four units per acre) and intensity provided in the Collier County plan for Urban Coastal Fringe. Mr. Duane did not adequately address the impact of the proposed CDD on onsite natural resources. As was true of all of Petitioners' witnesses and evidence, Mr. Duane did not address in any detail impacts of the proposed CDD and related community in terms of offsite natural resources and offsite public facilities.

         
         

      5. Mr. Duane testified persuasively as to the size, compactness, and contiguity of the land to be included in the proposed CDD. He interrelated the physical components--primarily public facilities--and the social components of the proposed community. He testified that the result is a "functionally interrelated community" that would be well-served by the facilities and services to be supplied by the proposed CDD. Although Mr. Duane ignored the proximity of suitable employment opportunities in his otherwise comprehensive testimony on this point, his testimony demonstrated that the size, compactness, and contiguity of the land to be included in the proposed CDD will permit its development as a single, functionally related community.

         
         

      6. There is little chance that the excluded enclaves and areas will lead to land uses unrelated to the predominant land uses of the proposed CDD. The largest enclaves comprise the golf course, which will probably serve Fiddler's Creek residents. The 36- and 12-acre tracts owned by the School Board, if developed as schools, would serve Fiddler's Creek residents, demographics permitting.

         
         

      7. Conceding the obvious point that the most compact area is a circle, Mr. Duane nonetheless showed that the irregular shape of the proposed CDD did not undermine his testimony as to the requisite size, compactness, and contiguity of the land. Likewise, Mr. Duane testified persuasively that he was untroubled by the attenuated contiguity at points in the proposed CDD or the absence of contiguity at the southeast corner.

      8. Testifying generally that the proposed CDD met the six criteria discussed below, Mr. Thomas Taylor, Petitioners' engineer, testified in detail and persuasively that the land of the proposed CDD was of sufficient size, compactness, and contiguity to permit economical installation of roads and sewer and water lines throughout the CDD, including dead-end components for the two discrete parcels. He acknowledged in his prepared and live testimony that the exclusion of the 244-acre golf course did not alter these conclusions.

         
         

      9. The northern and western strips leading to U.S. Route 41 and State Road 951 provide needed access and are reasonably wide. The role of the western strip that does not provide access is functionally related to the center of Parcel 1 by the proximity of this strip to the northwest corner of the golf course. The Peninsula and constriction of land between the center of the proposed CDD and its southeast corner represent land forms that are obviously less compact and less contiguous, but are not so much less so as to impede the development of the land of the proposed CDD into a functionally related community. The same is true of Parcels 2 and 3, whose small areas minimize the importance of their lack of contiguity.

         
         

      10. Based on his testimony concerning the compactness, size, and contiguity of the proposed CDD, Mr. Duane testified that the proposed CDD was amenable to special-district governance. The few existing facilities currently operating in the area would be turned over to the proposed CDD and operated in the same manner as they are operating presently. The existing facilities are water, sewer, drainage, roads, security, and parks and do not involve any regional systems. Mr. Taylor identified these local facilities as the County pump station, a water main serving the golf course, a wastewater main, and various stormwater management systems.

          
          

      11. Mr. Duane determined that the proposed CDD was the best alternative for implementing and maintaining needed infrastructure in advance of development. In making this determination, he justifiably relied on the accountability of private management focused exclusively on Fiddler's Creek and the absence of public indebtedness. Mr. Duane testified that all internal roads will be constructed to County standards and dedicated to the appropriate jurisdiction. The long-term viability of maintenance by the proposed CDD, when compared to facilities and services provided by a developer, derives from the fact that the CDD is designed to discharge its financial obligations indefinitely, long after a developer, divested of all property interest, would have any financial and possibly legal interest in maintaining these services.

          
          

      12. The economic impact statement prepared by Petitioners' economist, Dr. Henry Fishkind, reveals that the proposed project, consisting of 1348 acres, would consist of 1210 single-family units, 2297 multifamily units, 286,407 square feet of retail, 27,225 square feet of office, and 512 acres of parks, open space, and lakes with development planned from 1996 through 2003.

          
          

      13. The economic impact statement anticipates that Fiddler's Creek CDD will issue tax-exempt municipal bonds to provide the infrastructure and repay the debt with special assessments imposed on all benefited properties. Infrastructure providing a specific revenue source would provide another source for the repayment of the debt incurred in the construction of that infrastructure.

          
          

      14. Noting the provision of Section 190.002(3), which precludes the debt of any CDD from becoming a liability of any local government without its consent, the economic impact statement determines that the debts and liabilities

          of the proposed CDD would not become liabilities of Collier County. Section 190.016(15), according to the economic impact statement, prevents the State or Collier County from becoming obligated to repay the debt of the CDD.

          
          

      15. The economic impact statement concludes that a CDD can be the best way to assure that growth pays for itself. However, the economic impact statement performs little if any detailed analysis of specific impacts on offsite public facilities from development at this time of the proposed CDD and related community.

          
          

      16. Among costs of landowners in the proposed CDD, the economic impact statement lists District taxes, assessments, or charges in excess of County or other taxes, assessments, or charges. District impositions do not affect or offset County or School Board impositions and do not count against the County millage cap. In return, according to the economic impact statement, CDD residents may receive a higher level of public services than generally available at costs in management and financing often less expensive than generally available through direct County management, indirect County management through a Municipal Service Taxing Unit, or private homeowner management. The economic impact statement considers and rejects other alternatives for implementing and maintaining public facilities. Table 3 of the economic impact statement charts the relative costs of these other alternatives, compared to a CDD, from the perspectives of infrastructure initiation, implementation, maintenance, and financing.

          
          

      17. Table 2 attached to the Petition stated that the proposed infrastructure construction cost estimate was $28 million. Broken down by category of infrastructure, Table 2 did not address the timing of these expenditures.

          
          

      18. The Amended Petition contains a substantially different Table 2, to which Dr. Fishkind made no reference during his live testimony when he adopted his economic impact statement. Under the revised Table 2, total infrastructure costs have more than doubled to $70 million, consisting of $19.1 million for roads, $11.2 million for drainage, $24.3 million for utilities, and $4 million for recreation. Revised Table 2 breaks down each category of expenditure for when it will likely take place.

          
          

      19. The only prepared testimony was that of Mr. Duane and Mr. Taylor. The live testimony of the witnesses not discussed above was brief and duplicative of the evidence already summarized.

          
          

2. Summary of Law

   
   

   1. General

      1. Under Section 190.003(6), a "community development district" is a local unit of special-purpose government

         which is created pursuant to this act and

         limited to the performance of those specialized functions authorized by this act; the boundaries of which are contained wholly within a single county; the governing head of which is a body created, organized, and constituted and authorized to function specifically as prescribed in this act for the delivery of urban community development

         services; and the formation, powers, governing body, operation, duration, accountability, require- ments for disclosure, and termination of which are as required by general law.

         
         

      2. Section 190.011 enumerates the general powers of CDDs. These powers include the power of eminent domain inside the district and, with the approval of the governing body of the applicable county or municipality, outside the district for purposes related solely to water, sewer, district roads, and water management.

         
         

      3. Section 190.012 lists special powers of CDDs. Subject to the regulatory power of all applicable government agencies, CDDs may plan, finance, acquire, construct, enlarge, operate, and maintain systems and facilities for water management; water supply, sewer, and wastewater management; district roads meeting minimum county specifications; and certain projects within or without the district pursuant to development orders from local governments. After obtaining the consent of the applicable local government, a CDD may have the same powers with respect to the following "additional" systems and facilities: parks and recreation, fire prevention, school buildings, security, mosquito control, and waste collection and disposal.

         
         

      4. Section 190.005(1) provides that the sole means for establishing a community development district of 1000 acres or more shall be by rule adopted by FLWAC granting a petition for the establishment of a CDD. (Section 190.005(2) provides that, for proposed CDDs of less than 1000 acres, the county in which the proposed CDD is situated may establish a CDD under the same criteria discussed below.)

         
         

      5. Section 190.005(1)(a) requires that the petition be filed with FLWAC. The petition must describe by metes and bounds the area of the proposed CDD with a specific description of real property to be excluded from the district. The petition must set forth that the petitioner has the written consent of the owners of all of the real property in the proposed CDD, or has control by "deed, trust agreement, contract or option" of all of the real property. The petition must designate the five initial members of the board of supervisors of the proposed CDD and the district's name. The petition must contain a map showing current major trunk water mains and sewer interceptors and outfalls, if any.

         
         

      6. Section 190.005(1)(a) also requires that the petition propose a timetable for construction and estimate construction costs. The petition must designate future general distribution, location, and extent of public and private uses of land in the future land use element of the appropriate local government. The petition must contain an economic impact statement.

         
         

      7. Rule 42-1.008 requires that the petitioner also provide a copy of the local government's growth management plan.

         
         

      8. Section 190.005(1)(b) requires that the petitioner pay a filing fee of

         $15,000 to the county and to each municipality whose boundaries are within or contiguous to the proposed CDD. The petitioner must serve a copy of the petition on those local governments, as well.

         
         

      9. Section 190.005(1)(c) permits the county and each municipality described in the preceding paragraph to conduct a public hearing on the petition. Such local governments may then present resolutions to FLWAC as to the proposed CDD.

      10. Section 190.005(1)(d) requires a hearing officer to conduct a local public hearing pursuant to Chapter 120, Florida Statutes. The hearing "shall include oral and written comments on the petition pertinent to the factors specified in paragraph (e)." Section 190.005(1)(d) specifies that the petitioner publish notice of the local public hearing once a week for the four successive weeks immediately prior to the hearing.

          
          

   2. Factors for Granting or Denying Petition

      1. Section 190.005(1)(e) provides that FLWAC consider the entire record of the local hearing,

         the transcript of the hearing, resolutions adopted

         by local general-purpose governments as provided in paragraph (c), and the following factors and make a determination to grant or deny a petition for the establishment of a community development district:

         1. Whether all statements contained within

            the petition have been found to be true and correct.

         2. Whether the creation of the district is inconsistent with any applicable element or portion of the state comprehensive plan or of the effective local government comprehensive plan.

         3. Whether the area of land within the proposed district is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developable as one functional interrelated community.

         4. Whether the district is the best alternative available for delivering community development services and facilities to the area that will be served by the district.

         5. Whether the community development services and facilities of the district will be incompatible with the capacity and uses of existing local and regional community development services and facilities.

         6. Whether the area that will be served by the district is amenable to separate special-district government.

            
            

3. Summary of Evidence Under Applicable Law

   
   

   1. General Law

      
      

      1. Petitioners have satisfied the procedural requirements for the establishment of a CDD by paying the $15,000 filing fee, filing a petition in the proper form and with the required attachments, and publishing statutory notice of the local public hearing. FLWAC duly published notice of the local public hearing in the Florida Administrative Weekly.

         
         

      2. The amendment of the petition following the hearing did not deprive any interested persons of notice or a chance to be heard. Petitioners and their witnesses amply discussed the various contingencies, most importantly the deletion of the 244- acre golf course. The only post-hearing revision not identified at the local public hearing was Dr. Fishkind's revised Table 2.

      Although the new table provides important information substantially different from that presented at the local public hearing, it is unlikely that the public would have explored this material with Dr. Fishkind or other live witnesses at the hearing.

      
      

   2. Six Factors of Section 190.005(1)(e)

      
      

      1. Truth of Statements in Petition

1. Except as noted, the statements in the Amended Petition are correct. The only material discrepancy is the treatment of the 36-acre parcel owned by the School Board. The Amended Petition properly excludes the 12-acre tract, but incorrectly includes the 36-acre tract. Petitioners do not control the 36- acre parcel; the School Board's right to approve the suitability of any exchange property is unconditional. And the School Board's consent to joining in the Amended Petition is conditioned on its freedom from any assessments. If included in the CDD, the School Board's property would be subject to assessments; otherwise, there is no reason to include this parcel. Thus, the condition to the School Board's consent has not been satisfied, and Petitioners lack sufficient control over the 36-acre parcel to include it in the proposed CDD.

   
   

2. Petitioners' demonstrated control over the remainder of the proposed CDD rests on their mere assurance. Petitioners have produced no deeds, contracts to purchase, or option agreements. Before imposing a CDD on this property, FLWAC may wish to require Petitioners to provide the operative instruments establishing their interest in the property. FLWAC may then consider the extent to which Petitioners' control extends over this large area of land.

2. Consistency of Proposed District with State and Local Comprehensive Plans

1. No provision of the State or Collier County comprehensive plans prohibits the creation of a CDD at this location. The western half of the Peninsula is erroneously designated Conservation, unless Petitioners actually do not own this area. Under the Collier County Growth Management Plan, the Conservation designation is reserved for publicly owned land.

   
   

2. The Peninsula and western halves of the two westerly strips are designated with environmentally sensitive overlays. They are likely brackish marshes. None of the evidence addresses directly or indirectly how Petitioners would deal with these environmentally sensitive areas, either in the development of the public facilities to be operated by the proposed CDD or in the development of the community to be served by the proposed CDD. But the creation of the proposed CDD does not necessarily conflict with plan provisions protecting these natural resources.

   
   

3. Generally, the creation of a CDD serves various provisions of comprehensive plans by the efficient provision of certain infrastructure (i.e., the infrastructure to be provided by the proposed CDD), typically concurrent with the impacts of development. This consistency determination is important. But if it were all that was required to satisfy the criterion of consistency with state and local comprehensive plans, this criterion would mean very little, as all CDDs exist basically for the provision of infrastructure.

4. If consistency with the State and Collier County comprehensive plans requires more than a determination whether a proposed CDD is likely to provide some infrastructure, then the record in this case provides little means by which to make other consistency determinations with respect to the onsite impacts to natural resources mentioned above and offsite impacts to natural resources and public facilities.

   
   

5. Area roads enjoy extra capacity, except for one segment scheduled for expansion. Collier County intends for State Road 951 and U.S. Route 41 to serve important links in the County transportation plan through the build-out of the proposed CDD and likely beyond that time. Because the community to be served by the proposed CDD is being developed in Urban Coastal Fringe, it is likely that Collier County has anticipated this community's traffic needs, so they will not place unreasonable demands on area roads. Given the excess capacity of all but one of area road segments, it is unlikely that the proposed CDD would impose an unreasonable burden on governmental entities by substantially accelerating the need for road improvements.

   
   

6. The 1348-acre community to be served, and possibly hastened, by the proposed CDD may accelerate the need for local, regional, and state bodies and agencies to provide offsite infrastructure to other nearby areas in the Urban Coastal Fringe and limited Urban Residential areas, whose development is prompted by the development of Fiddler's Creek. However, there is no Urban land east of the proposed CDD and only limited Urban land in the other three directions. The density and intensity of such additional development may therefore be limited.

   
   

7. Ultimately, though, it is impossible on this record to determine the impact of the proposed CDD on Collier County's ability to provide public facilities and control urban sprawl in the sense of discouraging the premature development of areas, including the proposed CDD and areas around it, at urban densities and intensities. However, these issues may have been mooted by the development order reportedly already approved, which FLWAC may wish to require Petitioners to produce.

3. Whether Size, Compactness, and Contiguity of Proposed District Is Sufficient To Be Developable as One Functional Interrelated Community

93. The size, compactness, and contiguity of the proposed CDD is sufficient for it to be developable as one functional interrelated community.

4. Whether Proposed District is Best Alternative Available for Delivering Community Development Services and Facilities to Area To Be Served

94. The proposed CDD is probably the best alternative presently available for delivering community development services and facilities at this time to the area of the proposed CDD.

5. Whether Proposed District's Community Development Services and Facilities Will Be Compatible with Capacity and Uses of Existing Local and Regional Community Development Services and Facilities

95. The services and facilities provided by the proposed CDD will be compatible with the capacity and uses of existing local and regional community development services and facilities. The proposed CDD will assume ownership and maintenance responsibilities for the few local facilities presently onsite and will convey the water and sewer lines when the County's district service reaches the proposed CDD. The likely impact on area roads has already been discussed.

6. Whether Area To Be Served by Proposed District Is Amenable to Separate Special-District Government

96. Except for the 36-acre School Board parcel, the area to be served by the proposed CDD is amenable to separate special- district government. As previously noted, Petitioners have failed to show either that they control the 36-acre parcel or that the School Board has consented to its inclusion in the proposed CDD on conditions that make such an inclusion meaningful.

ENTERED on May 2, 1996, in Tallahassee, Florida.

ROBERT E. MEALE

Hearing Officer

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 on May 2, 1996.

APPENDIX A

Petitioners' Witnesses Louis H. Hoegsted

Gulf Bay Communities, Inc.

4001 Tamiami Trail North, Suite 350

Naples, Florida 33940

Bob Duane

Hole, Montes and Associates Post Office Box 1586 Naples, Florida 33939

Tom Taylor

Hole, Montes and Associates Post Office Box 1586 Naples, Florida 33939

Jim Ward

10300 Northwest Eleventh Manor Coral Springs, Florida 33071

Hank Fishkind

Fishkind and Associates, Inc. 12424 Research Parkway, Suite 275

Orlando, Florida 32826

APPENDIX B

Petitioners' Exhibits

A-1: large location map outlining location of proposed Fiddler's Creek CDD A-2: boundary map of community development to be served by Fiddler's Creek

CDD (consisting of the future land use map of the Collier County Commission and a drawing)

A-3: map of land area to be included in proposed CDD's jurisdiction A-4: Collier County Future Land Use Map

B: none

C-1: Petition; Exhibits C-2 through C-9 are attachments to the Petition C-2: location map

C-3: proposed CDD boundary map

C-4: documentation showing consent or control of land in proposed CDD C-5: delineation of existing public facilities

C-6: estimate of costs and proposed timetable for delivery certain contemplated infrastructure

C-7: information concerning the Collier County Growth Management Plan C-8: economic impact statement

C-9: Petitioners' acknowledgement regarding Collier County water and sewer district jurisdiction

D-1: letter to Debbie Orshefsky regarding golf course property D-2: memorandum to Lou Hoegsted regarding golf course property

D-3: (refer to legal description on map for golf course property) D-4: (refer to legal description on map for Katz property, which

Petitioners ultimately did not add to proposed CDD)

D-5: (refer to legal description on map for 12-acre School Board property; legal description of 36-acre School Board is in Exhibit C-4)

D-6: legal memorandum concerning amending petitions to establish CDD's

E-1: stipulation between Petitioners and Collier County with attachments E-2: memorandum of agreement between Petitioners and Collier County

regarding water and sewer district

F: County receipt for $15,000 filing fee

G: copy of check to Collier County for $15,000 filing fee H: letter to Dr. Bob Bradley transmitting Petition

I-1: letter to Department of Community Affairs giving notice of filing of Petition

I-2: letter to Southwest Florida Regional Planning Council giving notice of filing of Petition

J-1: letter from Dr. Bob Bradley to Sharyn Smith transmitting Petition and certifying completeness

J-2: letter to Sharyn Smith from Petitioners' attorney

K-1: Notice of Hearing, Volume 22, No. 6 of Florida Administrative Weekly, February 9, 1996

K-2: affidavit of publication, Naples Daily News, February 26, 1996 K-3: tear sheet, Naples Daily News, February 5, 1996

K-4: tear sheet, Naples Daily News, February 12, 1996 K-5: tear sheet, Naples Daily News, February 19, 1996 K-6: tear sheet, naples Daily News, February 26, 1996 L: Collier County Growth Management Plan

M: documentation of status of Collier County Growth Management Plan N: State Comprehensive Plan, Chapter 187, Florida Statutes

O-1: prepared testimony of Robert L. Duane, land use planner O-2: prepared testimony of Thomas M. Taylor, engineer

COPIES FURNISHED:

Dr. Bob Bradley, Secretary

Florida Land and Water Adjudicatory Commission Executive Office of the Governor

1601 Capitol

Tallahassee, Florida 32399

Barbara Leighty, Clerk

Growth Management and Strategic Planning 2105 Capitol

Tallahassee, Florida 32399

Attorney Gregory Smith

209 Capitol

Tallahassee, Florida 32399-0001

Kenza van Assenderp

Young, van Assenderp & Varnadoe, P.A. Post Office Box 1833

Tallahassee, Florida 32302-1833

David Weigel, County Attorney Collier County

3301 East Tamiami Trail Naples, Florida 33962

Michael Pettit, Assistant County Attorney Collier County

3301 East Tamiami Trail Naples, Florida 33962

Theresa Moore Greenberg Traurig

515 Los Olas Boulevard, Suite 1500 Ft. Lauderdale, Florida 33301

Kathleen Slebodnik, President

League of Women Voters of Collier County 660 Ninth Street, Suite 35B

Naples, Florida 33940

Docket for Case No: 95-006106

Orders for Case No: 95-006106