STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
IN RE: PETITION FOR RULE )
CREATION - HAWK’S HAVEN ) Case No. 04-3082 COMMUNITY DEVELOPMENT )
DISTRICT. )
)
ADMINISTRATIVE LAW JUDGE’S REPORT TO
THE FLORIDA LAND AND WATER ADJUDICATORY COMMISSION
Notice was given and on November 2, 2004, a local public hearing was conducted pursuant to Section 190.005(1)(d), Florida Statutes, in Fort Myers, Florida, by Charles A. Stampelos, Administrative Law Judge (ALJ) of the Division of Administrative
Hearings (DOAH).
APPEARANCES
For Petitioner: Tracy J. Robin, Esquire
Straley Robin & Williams Suite 300
100 East Madison Street Tampa, Florida 33602
STATEMENT OF THE ISSUE
The issue before the Florida Land and Water Adjudicatory Commission (FLWAC) in this proceeding is whether to grant the Petition to Establish Hawk’s Haven Community Development District (Petition), dated July 6, 2004. The local public hearing was conducted for the purpose of gathering information in anticipation of rulemaking by FLWAC.
PRELIMINARY STATEMENT
Hawk’s Haven Developers, LLC (Petitioner) filed the Petition with the Secretary of FLWAC on July 7, 2004. It requested that FLWAC adopt a rule to establish a uniform community development district, to be known as the Hawk’s Haven Community Development District (District), on certain property situated wholly in the unincorporated area of Lee County, Florida (County). Prior to filing the Petition, Petitioner delivered the Petition and its exhibits, along with the requisite filing fee, to Lee County.
The land within the external boundaries of the proposed District is neither contained within nor contiguous to the boundaries of any municipality. Section 190.005(1)(c), Florida Statutes, provides that the county containing all or a portion of the lands within the proposed District has the option to hold a public hearing within forty-five (45) days of the filing of the Petition. Lee County did not opt to hold such a hearing.
On August 30, 2004, the Secretary of FLWAC certified that the Petition contained all required elements and forwarded it to DOAH for the purpose of holding the public hearing required under Section 190.005(1)(d), Florida Statutes. A copy of the Secretary’s correspondence to the DOAH was admitted into evidence as Petitioner’s Exhibit 9.
The local public hearing was held at 10:30 a.m., on November 2, 2004, at the Lee County Old Courthouse located at 2120 Main Street, Fort Myers, Lee County, Florida. Petitioner published notice of the hearing in accordance with Section 190.005(1)(d), Florida Statutes.
At the local public hearing, Petitioner presented the testimony of John H. McKay, Senior Manager for Rizzetta & Company, Inc., the proposed District’s management and fiscal consultant, an expert in district management; Carl A. Barraco, P.E., of Barraco & Associates, Inc., the proposed District’s professional engineer, an expert in civil engineering and public infrastructure; and Graydon E. Miars, Project Manager for Land Mar Group, LLC, the sole member of Petitioner. No one from the public or Lee County appeared at the public hearing.
At the local public hearing, Petitioner introduced the following Exhibits 1A through 9 into evidence, which are described in the Transcript of the proceedings:
Exhibits 1A and 1B
Affidavits of Publication from the New-Press newspaper, providing evidence that the public hearing notice for this hearing was published on October 4, 2004, October 12, 2004, October 19, 2004, and October 26, 2004, in accordance with the requirements of Section 190.005(1)(d), Florida Statutes.
Exhibit 2
Copy of a letter dated August 30, 2004, from Secretary Hanson, Office of the Governor, to Mr. Ray Eubanks, Department of Community Affairs.
Exhibit 3
Written pre-filed testimony of John H. McKay. Exhibit 4
Revised Statement of Estimated Regulatory Costs, Exhibit H to the Petition to Establish Hawk’s Haven Community Development District.
Exhibit 5
Written pre-filed testimony of Carl A. Barraco. Exhibit 6
The Petition to Establish Hawk’s Haven Community Development District and Exhibits A through H, attached thereto, as amended.
Exhibits 7A and 7B
Exhibits 7A and 7B are, respectively, the revised Exhibits F-1 and F-2 to the Petition to Establish Hawk’s Haven Community Development District.
Exhibit 8
Written pre-filed testimony of Graydon E. Miars. Exhibit 9
Copy of a letter dated August 30, 2004, from FLWAC declaring the Petition sufficient.
On November 15, 2004, Petitioner filed the Transcript of the local public hearing and Petitioner’s late-filed exhibits (Petitioner’s Exhibit 10).
On November 19, 2004, the Secretary of FLWAC filed a Notice of Filing Notice of Receipt of Petition and a Notice of Receipt of Petition (Petitioner’s Exhibit 11).
On November 22, 2004, Petitioner filed a Notice of Substitution of Counsel.
On November 24, 2004, Petitioner filed an amended Notice of Substitution of Counsel and Change of Address.
On November 24, 2004, Petitioner filed a Proposed Report of Administrative Law Judge to FLWAC, which has been considered in the preparation of this Report.
On November 29, 2004, Petitioner filed a copy of the FLWAC Notice of Receipt of Petition, published on November 24, 2004, in Volume 30, Number 48 of the Florida Administrative Weekly (Petitioner’s Exhibit 12).
In light of the Notice of Receipt of Petition filed by FLWAC, on November 22, 2004, the undersigned entered an Order holding the record open until December 10, 2004, to receive public comment.
On December 10, 2004, at 5:00 p.m., having received no additional information, the record closed.
SUMMARY OF THE RECORD
Overview
Petitioner is seeking the adoption of a rule by FLWAC to establish a community development district (CDD) consisting
of approximately 1,926 acres located within the unincorporated boundaries of Lee County Florida. The proposed name for the proposed District is the Hawk’s Haven Community Development District.
There appear to be three parcels within the external boundaries of the proposed District that are to be excluded from the District.1 Mr. Barraco testified that creation of the District would not adversely affect the excluded parcels. Mr. Barraco further testified that the excluded parcels will benefit from the creation of the District because infrastructure improvements will be brought closer to each of the excluded parcels.
The estimated cost of the infrastructure facilities and services that are presently expected to be provided to the lands within the District is included in the Petition.
The sole purpose of this proceeding is to consider the establishment of the District as proposed by Petitioner. Information relating to the managing and financing of the service-delivery function of the proposed District was considered. This report summarizes the relevant and material evidence relating to Section 190.005(1)(e)1.-6., Florida Statutes.
Whether all statements contained within the Petition have been found to be true and correct.
Petitioner’s Exhibit 6 consists of the Petition and its exhibits filed with FLWAC. Mr. Miars testified that the Petition and its exhibits were true and correct to the best of his knowledge.
Mr. Barraco testified that all the facts set forth in the Petition were true and correct to the best of his knowledge. Mr. Barraco also testified that the construction cost estimates set forth in Exhibits 7A and 7B were true and correct to the best of his knowledge. Mr. Barraco testified that Exhibits 7A and 7B are revisions to Petition Exhibits F-1 and F-2 which exclude references to park and recreational facilities, at the express request of Lee County staff.
Mr. McKay testified that he had prepared Exhibit H to the Petition, the Statement of Estimated Regulatory Costs (SERC). Mr. McKay also testified that he revised the SERC at the request of Lee County officials, to exclude reference to a recreational facility.
The revised SERC was admitted into evidence as Petitioner’s Exhibit 4.
The Petition included written consent to establish the District from the owner or owners of 100 percent of the real property to be included in the proposed District.
The evidence indicates that the Petition and its exhibits are true and correct.
Whether the establishment of the District is inconsistent with any applicable element or portion of the State Comprehensive Plan or of the effective local government comprehensive plan.
Mr. Barraco reviewed the proposed District in light of the requirements of the State Comprehensive Plan, Chapter 187, Florida Statutes. Mr. Barraco also reviewed the proposed District in light of the requirements of the Lee County Comprehensive Plan.
Based on the testimony and exhibits in the record, the evidence indicates that the proposed District will not be inconsistent with any applicable element or portion of the State Comprehensive Plan.
Based on the evidence in the record, the proposed District will not be inconsistent with any applicable element or portion of the Lee County Comprehensive Plan.
The Florida Department of Community Affairs (DCA) reviewed the Petition for compliance with its various programs and responsibilities. In a letter dated September 13, 2004, DCA identified no potential inconsistency with Chapter 163, Florida Statutes.
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.
Mr. Barraco testified that all of the land in the proposed District is part of a Master Planned Unit Development approved by Lee County, Florida.
Mr. Barraco testified that in his opinion the land within the District is of sufficient size, compactness, and contiguity to be developable as a functional interrelated community.
Mr. McKay testified that the proposed District is large enough to effectively provide for and manage the services that are intended to be provided by the District.
Mr. McKay testified further that because of the size and the complexity of the improvements that are intended to be built, there is a real need for a professionally managed and organized unit such as a community development district to oversee the construction, and provide low-cost financing and ongoing management.
Whether the proposed District is the best alternative available for delivering community development services and facilities to the area that will be served by the proposed District.
It is intended that the District will construct or provide certain infrastructure improvements as outlined in the Petition.
Installation and maintenance of infrastructure systems and services by the proposed District are expected to be paid through the imposition of non-ad valorem or special assessments. Use of such assessments will ensure that the real property benefiting from District services is the same property that pays for them.
Mr. McKay testified that he reviewed several factors in determining if the establishment of a community development district is the best alternative for delivering community development services to the area.
Mr. McKay testified that he identified two alternative methods of financing the construction and maintenance of such facilities and services: first, County financing; and second, private financing.
Mr. McKay testified that public financing is expensive and places the burden of the cost on all residents of the County regardless of whether they live in the District.
With respect to private financing, Mr. McKay testified that it is very expensive and usually increases the cost of the home to the individual homebuyer.
Mr. McKay testified that, after comparing these alternative methods of financing with CDD financing, he determined that CDD financing was the best alternative because
the costs are born entirely within the land that makes up the District.
Mr. McKay further testified that the CDD format is superior to the property owners association format, because the statute creating and empowering community development districts provides greater protection to the homeowner through requirements for noticed and public meetings, competitive bidding, and availability of records for audit and public inspection.
The community development district allows for the independent financing, administration, operation, and maintenance of the land within such a district. The community development district allows district residents to ultimately completely control the District.
From planning, economic, engineering, and special district management perspectives, the evidence indicates that the proposed District is the best alternative available for delivering community development services and facilities to the area that will be served by the District.
Whether the community development services and facilities of the proposed District will be incompatible with the capacity and uses of existing local and regional community development services and facilities.
Mr. McKay testified that he reached the conclusion that the community development services and facilities of the
proposed District will not be incompatible with the capacity and uses of existing local and regional community development services and facilities because: (1) the facilities proposed by the District do not currently exist in the area; (2) once the improvements are constructed, there will not be any overlap in services provided by the County versus those provided by the District, nor will there be any competition between the County and the District for those services; and (3) the facilities proposed by the District are consistent with similar infrastructure facilities that are currently servicing developments of a similar nature.
Mr. Barraco testified that, in his opinion as a professional engineer, the proposed services to be developed within the District are compatible with the uses of the existing community because those services and facilities are necessary but not currently available on a centralized basis within the District.
The evidence indicates that none of the proposed services or facilities is presently being provided by another entity for the lands to be included within the District.
The evidence indicates that the community development services and facilities of the proposed District will not duplicate any existing local or regional services or facilities.
The evidence indicates further that the facilities proposed by the District are consistent with similar infrastructure facilities that are currently servicing developments of a similar nature.
Therefore, the evidence indicates that the community development services and facilities of the proposed District will not be incompatible with the capacity and uses of existing local and regional community development services and facilities.
Whether the area that will be served by the District is amenable to separate special-district government.
As cited previously, from planning, economic, engineering and special-district management perspectives, the evidence indicates that the area of land to be included in the proposed District is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developed and become a functional interrelated community. The community to be included in the District has need for certain basic infrastructure systems, and the proposed District provides for an efficient mechanism to oversee the construction and installation of these improvements.
From planning, engineering, economic, and management perspectives, the evidence indicates that the area that will be
served by the District is amenable to separate special-district government.
Other requirements imposed by statute or rule.
Chapter 190, Florida Statutes, and Florida Administrative Code Chapter 42-1, impose specific requirements regarding the petition and other information to be submitted to
FLWAC.
Elements of the Petition
The Commission has certified that the Petition to Establish Hawk’s Haven Community Development District meets all of the requirements of Section 190.005(1)(a), Florida Statutes.
Statement of Estimated Regulatory Costs
The SERC contains an estimate of the costs and benefits to all persons directly affected by the proposed rule to establish the District – the State of Florida and its citizens, the County and its citizens, Petitioner, residents and consumers.
Beyond administrative costs related to rule adoption, the evidence indicates that the State and its citizens will only incur minimal costs from establishment of the District. These costs are related to the incremental costs to various agencies of reviewing periodic additional local government reports. The proposed District will require no subsidies from the State. Benefits will include improved planning and coordination of
development, which is difficult to quantify but nonetheless substantial.
The District’s debts and obligations will not become a State or County obligation.
Administrative costs incurred by Lee County related to rule adoption will be modest. The costs are offset by the
$15,000 filing fee paid by Petitioner to Lee County.
Benefited property owners within the District will pay non-ad valorem, or special assessments, which will be used to repay bonds issued to finance capital improvements within the District. Locating within the District is voluntary. Generally, the evidence indicates that the District financing will be less expensive than maintenance through a property owners association or capital improvements financed through developer loans.
Section 190.005(1)(a), Florida Statutes, requires the petition to include a SERC which meets the requirements of Section 120.541, Florida Statutes. The Petition contains a SERC. The evidence indicates that it meets all requirements of Section 120.541, Florida Statutes.
Other Requirements
The evidence indicates that Petitioner has complied with the provisions of Section 190.005(1)(b), Florida Statutes,
in that Lee County was provided a copy of the Petition and was paid the requisite filing fee.
Pursuant to Section 190.005(1)(d), Florida Statutes, notice of the public hearing was advertised on October 4, 12, 19, 26, 2004, in the News-Press, a newspaper of general paid circulation in Lee County, and of general interest and readership in the community, not one of limited subject matter, pursuant to Chapter 50, Florida Statutes. The published notices gave the time and place for the hearing; a description of the area to be included within the District, including a map showing the land to be included within the District; and other relevant information. The advertisement was published as a display advertisement, not in the portion of the newspaper where legal notices and classified advertisements appear.
Public Comment During the Hearing
No member of the public was present, nor was any public comment received at the hearing.
No representative of Lee County appeared at the hearing, nor was any written comment received from Lee County.
APPLICABLE LAW
This proceeding is governed by Chapters 120 and 190, Florida Statutes, and Florida Administrative Code Chapter 42-1.
The proceeding was properly noticed pursuant to Section 190.005(1)(d), Florida Statutes, by publication of an
advertisement in a newspaper of general paid circulation in Lee County, and of general interest and readership once each week for the four consecutive weeks immediately prior to the hearing.
The evidence indicates that Petitioner has met the requirements of Section 190.005, Florida Statutes, regarding the submission of the Petition and satisfied the filing fee requirements.
Petitioner bears the burden of establishing that the Petition meets the relevant statutory criteria set forth in Section 190.005(1)(e)1.-6., Florida Statutes.
The evidence was that all portions of the Petition and other submittals have been completed and filed as required by law.
The evidence was that all statements contained within the Petition are true and correct.
The evidence was that the establishment of the District is not inconsistent with any applicable element or portion of the State Comprehensive Plan or the effective Lee County Comprehensive Plan.
The evidence was that 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.
The evidence was that the proposed District is the best alternative available for delivering community development services and facilities to the area that will be served by the District.
The evidence was that the community development services and facilities of the proposed District will not be incompatible with the capacity and uses of existing local and regional community development services and facilities.
The evidence was that the area to be served by the proposed District is amenable to separate special-district
government.
CONCLUSION
Section 190.005(1)(e), Florida Statutes, states that FLWAC shall consider the entire record of the local hearing, the transcript of the hearing, resolutions adopted by local general- purpose governments and the factors listed in that subparagraph. Based upon the record evidence, Petitioner has met all statutory requirements and there appears to be no reason not to grant the Petition and establish the proposed Hawk’s Haven Community Development District by rule. For purposes of drafting such a rule, a metes and bounds description of the proposed Hawk’s Haven Community Development District can be found at Petition Exhibit B. Also, the five persons designated to serve as the initial members of the Board of Supervisors of the Hawk’s Haven
Community Development District are identified in paragraph 4 of the Petition and Petition Exhibit D.
DONE AND ENTERED this 13th day of December, 2004, in Tallahassee, Leon County, Florida.
S
CHARLES A. STAMPELOS
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 13th day of December, 2004.
ENDNOTE
1/ The Petition at paragraph 2 states that there are three parcels (A.-C.) located within the external boundaries of the District that are to be excluded from the District. See also Petitioner's Exhibit 12 at 5044. It is further stated that the "[e]stablishment of the District will not have any impact upon the excluded properties identified in this section." (citation omitted). Mr. Barraco testified that there are two outparcels within the boundaries of the proposed District. (Transcript (Tr) 21-24). In his opinion, "there would be no adverse impact to either outparcel." (Tr 22). Mr. Barraco described one parcel as "fairly square" and just south of State Road 80. (Tr 22). The other outparcel is "rectangular" "along the longest segment of the northern boundary of the parcel." (Tr 22). See also Petition Exhibits A, E-1, E-2, and Revised Petition Exhibit
G. (It may be that the two parcels identified in the Petition in paragraph 2.A. and B. are contiguous and comprise the "rectangular" outparcel described by Mr. Barraco. See Petition Exhibits A, E-1, E-2, and Petition, paragraph 2.A. and B. and the parcel identification numbers.) Finally, the "rectangular" outparcel, and the square outparcel just south of State Road 80 described by Mr. Barraco, appear to be excluded from the
District ("subject property") depicted on the revised Future Land Use Map (Petitioner's Revised Exhibit G, included with Petitioner's Exhibit 10, item three). Compare with Petition Exhibits A, E-1, and E-2.
COPIES FURNISHED:
Michael P. Hansen, Secretary
Florida Land and Water Adjudicatory Commission The Capitol, Room 2105
Tallahassee, Florida 32399-0001
Barbara Leighty, Clerk
Growth Management and Strategic Planning The Capitol, Room 2105
Tallahassee, Florida 32399-0001
Raquel A. Rodriguez, General Counsel Office of the Governor
The Capitol, Room 209 Tallahassee, Florida 32399-0001
Heidi Hughes, General Counsel Department of Community Affairs
2555 Shumard Oak Boulevard, Suite 325
Tallahassee, Florida 32399-2100
Tracy J. Robin, Esquire Straley Robin & Williams Suite 300
100 East Madison Street Tampa, Florida 33602
| Issue Date | Document | Summary |
|---|---|---|
| Dec. 13, 2004 | Recommended Order | The local public hearing was held on the Petition to Establish Hawk`s Haven Community Development District, comprising approximately 1,926 acres. The received evidence supports the petition. |
