STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: AMENDED PETITION FOR RULE )

CREATION-PALM COAST PARK COMMUNITY ) Case No. 04-4313 DEVELOPMENT DISTRICT. )

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ADMINISTRATIVE LAW JUDGE’S REPORT TO THE FLORIDA LAND AND WATER ADJUDICATORY COMMISSION

Notice was given and on February 8, 2005, a local public hearing was conducted pursuant to Section 190.005(1)(d), Florida Statutes, in Palm Coast, Florida, by Charles A. Stampelos, Administrative Law Judge (ALJ) of the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioners: Michael D. Chiumento III, Esquire

Chiumento & Davenport, P.A. 4B Old Kings Road North Palm Coast, Florida 32137

STATEMENT OF THE ISSUE

The issue before the Florida Land and Water Adjudicatory Commission (FLWAC) in this proceeding is whether to grant the Amended Petition to Establish the Palm Coast Park Community Development District (Amended Petition) dated October 13, 2004. The local public hearing was conducted for the purpose of gathering information in anticipation of rulemaking by FLWAC.

PRELIMINARY STATEMENT

On or about June 10, 2004, Petitioners, Florida Landmark Communities, Inc., Palm Coast Land, LLC, and Palm Coast Forest, LLC, filed the initial petition for rulemaking with the Secretary of FLWAC. Petitioners requested FLWAC to adopt a rule to establish a uniform community development district, to be known as Palm Coast Park Community Development District (District), on certain property situated in the City of Palm Coast (City) and Flagler County, Florida. Contemporaneously with filing the petition, Petitioners delivered the petition and its exhibits, along with requisite filing fee, to the City and to Flagler County (County).

The land to be included within the proposed District is contained wholly within the boundaries of Flagler County and, more specifically, the incorporated area of Palm Coast.

On or about October 13, 2004, Petitioners filed their Amended Petition, which added lands and addressed the Secretary of FLWAC’s Notice of Insufficiency and Request for Additional Information dated July 9, 2004.

On November 29, 2004, the Secretary of FLWAC certified that the Amended 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.

After notice was given, the local public hearing was held at 12:00 p.m., on February 8, 2005, at the City of Palm Coast Utility Department located at 2 Utility Drive, Palm Coast, Flagler County, Florida.

At the local public hearing, Petitioners presented the testimony of William J. Livingston, Jr., President of Florida Landmark Communities, Inc., and Manager of Palm Coast Land, LLC, and Palm Coast Forest, LLC; David R. Root, an expert in the management of community development districts; Robert B. Gaylord of Singhofen & Associates, Inc., an expert in civil engineering and public infrastructure; John H. McKay of Rizzetta & Company, Inc., an expert financial advisor to community development districts; and Robert D. Londeree of RDL Planning & Design, an expert in land planning and public infrastructure. Two members of the public attended the hearing, Janice and Gene Martin. Ms. Martin generally inquired of the nature of the project, e.g., whether a Publix or retail establishments would be located in the area.

At the local public hearing, Petitioners introduced Exhibits A through J-JM into evidence, which are described in the Transcript of the proceedings:

Exhibit A: Amended Petition to Establish Palm Coast Park Community Development District and Exhibits 1 through 13 attached thereto as amended.

Exhibit B-WL: Pre-filed Testimony of William I. Livingston, Jr.

Exhibit C-WL and Supplements: Affidavits of publication from the Daytona Beach News-Journal providing information that notice of the public hearing was published on January 22, 2005, January 26, 2005, January 29, 2005, and February 2, 2005; and affidavits of publication from the Flagler/Palm Coast News/Tribune providing information that the public hearing notices were also published on January 15 and 19, 2005.

Exhibit D-WL: A copy of FLWAC’s Notice of Receipt of Petition published on January 21, 2005, in Volume 31, Number 3 of the Florida Administrative Weekly.

Exhibit E-DR: Pre-filed Testimony of David R. Root. Exhibit F-RG: Pre-filed Testimony of Robert B. Gaylord. Exhibit G-RL: Pre-filed Testimony of Robert D. Londeree. Exhibit H-RL: Petitioners’ Development of Regional Impact

Application for Development Approval (ADA) filed in June of 2003.

Exhibit I-RL: Composite Exhibit indicating the Petitioners’ First and Second Sufficiency Response to the ADA.

Exhibit J-JM: Pre-filed Testimony of John H. McKay.

On March 11, 2005, Petitioners filed the Transcript of

the local public hearing. On March 22, 2005, Petitioners filed a proposed report.

SUMMARY OF THE RECORD

1. Overview

   
   

   1. Petitioners are seeking the adoption of a rule by FLWAC to establish a community development district (CDD) consisting of approximately 4,778 gross acres located within the boundaries of incorporated areas of Palm Coast. The proposed name for the proposed District is the Palm Coast Park Community Development District.

   2. The estimated cost of the infrastructure facilities and services, which are presently expected to be provided to the lands within the District, was included in the Amended Petition.

   3. The sole purpose of this proceeding is to consider the establishment of the District as proposed by Petitioners. 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 the criteria in Section 190.005(1)(e)1.- 6., Florida Statutes.

2. Whether all statements contained within the Amended Petition have been found to be true and correct.

   
   

   1. Petitioners’ Exhibit A was identified for the record

      as a copy of the Amended Petition and its exhibits as filed with FLWAC.

   2. Mr. Livingston testified that the Amended Petition and its exhibits are true and correct to the best of his knowledge. Mr. Livingston also generally described the exhibits to the Amended Petition.

   3. Mr. Gaylord testified that he assisted in the preparation of portions of the Amended Petition and its exhibits. Specifically, Mr. Gaylord generally described Exhibit 6 to the Amended Petition, which he or his office had contributed to, and stated that it is true and correct to the best of his knowledge.

   4. Mr. McKay testified that he prepared Exhibit 10 to the Amended Petition, the Statement of Estimated Regulatory Costs (SERC). Mr. McKay also testified that the SERC submitted as Exhibit 10 to the Amended Petition is true and correct to the best of his knowledge.

   5. Mr. Livingston testified that the consent by the owner of the lands to be included within the proposed District is still in full force and effect. The Amended Petition included written consent to establish the District from the owners of all of the real property located within the lands to be included in the proposed District.

   6. Mr. Londeree testified that he prepared Exhibits G-RL,

      H-RL, and I-RL and briefly described each exhibit. Mr. Londeree testified that Exhibits G-RL, H-RL, and I-RL are true and correct to the best of his knowledge.

   7. Based upon the foregoing, the evidence indicates that the Amended Petition and its exhibits are true and correct.

3. 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.

   
   

   1. Mr. Londeree reviewed the proposed District in light of the requirements of the State Comprehensive Plan, Chapter 187, Florida Statutes. Mr. Londeree also reviewed the proposed District in light of the requirements of the City of Palm Coast Comprehensive Plan.

   2. Based upon 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.

   3. In 2004, the City of Palm Coast approved a Comprehensive Plan Amendment, bringing Petitioners’ property into compliance with the City’s adopted Comprehensive Plan.

   4. The evidence indicates that the proposed District will not be inconsistent with any applicable element or portion of the Local Comprehensive Plan, and will in fact further the goals provided.

4. 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.

   
   

   1. Mr. Londeree, Mr. McKay, and Mr. Gaylord provided testimony on this criterion.

   2. All of the land in the proposed District is part of a planned community included in the Palm Coast Park Development of Regional Impact (DRI), which was approved on December 7, 2004.

   3. Functional interrelation means that the community development plan requires that the residents and property owners will be provided those facilities that are the necessary services for a mixed-use community. These facilities include streets, stormwater ponds, water and sewer service, street lighting, sidewalks, bike paths, and associated landscaping. All of these elements will tie the land uses of the community together to provide a unity of design and function for the community. The community facilities that are provided require a long-range development plan that addresses the management, scheduling,

      funding, construction, and maintenance of the required infrastructure for the growth and development of the community.

   4. The size of the proposed District is approximately 4,778 gross acres, located within the borders of incorporated

      Palm Coast. From a planning perspective, this is a sufficient size to accommodate the basic infrastructure facilities and services typical of a functionally interrelated community.

      The proposed facilities and services require adequate planning, design, financing, construction, and maintenance to provide the community with appropriate infrastructure.

   5. Compactness relates to the location in distance between the lands and land uses within a community. The evidence is that the proposed District provides for a cost- effective and efficient design and delivery of the required infrastructure and the future maintenance of it.

   6. Petitioners are developing all the lands within the District as a single master-planned community. The Palm Coast Park Development of Regional Impact Development Order, issued by the City of Palm Coast, Flagler County, Florida, will govern all of these lands.

   7. The evidence is that from planning, economics, and engineering perspectives, 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 as a single functionally interrelated community.

5. 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.

   
   

   1. It is presently intended that the District will

      participate in the construction or provision of certain infrastructure improvements as outlined in the Amended Petition.

   2. Installation and maintenance of infrastructure systems and services by the District is expected to be financed through the issuance of tax exempt bonds and the debt retired by non-ad valorem or special assessments on benefited property within the proposed District. Expenses for operations and maintenance are expected to be paid through maintenance assessments. Use of such assessments will ensure that the real property benefiting from District services is the same property, which pays for them.

   3. Two types of alternatives to the use of the District were identified. First, the City of Palm Coast might provide facilities and services from its general fund. Second, facilities and services might be provided by some private means, with maintenance delegated to a property owners’ association (POA).

   4. The District expects to construct certain infrastructure and community facilities, which will be needed by the property owners and residents of the project. Expenses for the operations and maintenance are expected to be paid through maintenance assessments to ensure that the property or

      person receiving the benefit of the district services is the same property or person to pay for those services.

   5. From an engineering perspective, the evidence indicates that the proposed District is the best alternative to provide the proposed community development services and facilities to the land included in the proposed District because the District will provide the necessary means to maintain the project in the conditions and intent of the design. Alternative approaches may result in a condition or lack of maintenance that was not the original intent of the project. A localized agency that is focused on maintaining and governing the area will help to ensure that the design and intent for which the project was developed and presented to the public will be maintained.

   6. 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.

6. 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.

   
   

   1. The evidence indicates that the services and facilities proposed to be provided by the District are not incompatible with uses and existing local and regional

      facilities and services. Currently the land within the proposed District boundaries is undeveloped and therefore cannot duplicate the local or regional facilities. The facilities within the District are designed to, and in some areas exceed, the current design requirements by local municipalities and are therefore compatible with the capacities and uses of the existing regional community development facilities and services.

   2. 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.

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

   
   

   1. As previously stated, from planning, economics, and engineering 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 functionally interrelated community. The community to be included in the District has a need for the basic infrastructure systems to be provided.

   2. From planning and economic perspectives, the

      evidence indicates that the area that will be served by the proposed District is amenable to separate special-district government.

8. Other requirements imposed by statute or rule.

1. 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

   
   

2. FLWAC has certified that the Amended Petition to Establish the Palm Coast Park Community Development District meets all of the requirements of Section 190.005(1)(a), Florida Statutes.

   Statement of Estimated Regulatory Costs (SERC)

   
   

3. 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, the City and its citizens, the Petitioners, and consumers.

4. Beyond administrative costs related to rule adoption, the State and its citizens will only incur minimal costs from establishing the District. These costs are related to the incremental costs to various agencies of reviewing one additional local government report. The proposed District

   will require no subsidies from the State. Benefits will include improved planning and coordination of development, which are difficult to quantify but nonetheless substantial.

5. Administrative costs incurred by the City of Palm Coast and Flagler County related to rule adoption should be minimal. Benefits to the City of Palm Coast and Flagler County will include improved planning and coordination of development, without incurring any administrative or maintenance burden for facilities and services within the proposed District except for those it chooses to accept.

6. Consumers will pay non-ad valorem or special assessments for certain facilities. Location in the District by new residents is voluntary. Generally, District financing will be less expensive than maintenance through a POA or capital improvements financed through developer loans. Benefits to consumers in the area within the CDD will include the option of having a higher level of public services and amenities than might otherwise be available, completion of District-sponsored improvements to the area on a timely basis, and a larger share of direct control over community development services and facilities within the area.

7. 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 Amended Petition

   contains a SERC. The evidence indicates that the SERC meets the requirements of Section 120.541, Florida Statutes.

   Other Requirements

   
   

8. Petitioners have complied with the provisions of Section 190.005(1)(b)1., Florida Statutes, in that Flagler County and the City of Palm Coast were paid the requisite filing fees.

9. Section 190.005(1)(d), Florida Statutes, requires Petitioners to publish notice of the local public hearing in a newspaper of general circulation in Flagler County and the City of Palm Coast for four successive weeks immediately prior to the public hearing. Notice was published in the Daytona Beach News-Journal on January 22, 2005; January 26, 2005; January 29, 2005; and February 2, 2005, and in the Flagler/Palm Coast News-Tribune on January 15, 2005, and January 19, 2005. Georgia M. Kaney, Publisher of both newspapers, explained that the “Daytona Beach News-Journal is a newspaper of general circulation and published seven (7) days a week in Flagler County” and that “[o]n Saturday and Wednesday of each week in Flagler County, the Flagler/Palm Coast News-Tribune is printed and published as a supplemental part of the daily publication of the Daytona Beach News- Journal.” See Petitioners’ Supplemental Exhibit C-Affidavit.

   Flagler County’s Support for Establishment

   
   

10. Pursuant to the requirements of Section 190.005(1)(b), Florida Statutes, Petitioners filed a copy of the initial petition and the $15,000.00 filing fee with Flagler County prior to filing the petition with FLWAC.

11. As permitted by Section 190.005(1)(c), Florida Statutes, the Flagler County Commission held a public hearing on August 2, 2004, to consider the establishment of the Palm Coast Park Community Development District.

12. At the conclusion of its public hearing on August 2, 2004, the Flagler County Commission adopted Resolution No. 2004-107, expressing support for the adoption of a rule establishing the Palm Coast Park Community Development District.

    Palm Coast’s Support for Establishment

    
    

13. Pursuant to the requirements of Section 190.005(1)(b), Florida Statutes, Petitioners filed a copy of the initial petition and the $15,000.00 filing fee with the City of Palm Coast prior to filing the petition with FLWAC.

14. As permitted by Section 190.005(1)(c), Florida Statutes, the City of Palm Coast held a public hearing on August 3, 2004, to consider the establishment of the Palm Coast Park Community Development District.

15. At the conclusion of its public hearing on August 3,

    2004, the City Council of the City of Palm Coast adopted Resolution No. 2004-35, expressing support for the adoption of a rule establishing the Palm Coast Park Community Development District.

    APPLICABLE LAW

    
    

16. This proceeding is governed by Chapters 190 and 120, Florida Statutes, and Florida Administrative Code Chapter 42- 1.

17. The evidence indicates that the public hearing was properly noticed pursuant to Section 190.005(1)(d), Florida Statutes, by publication of notice in a newspaper of general circulation in Flagler County and the City of Palm Coast once each week for the four (4) successive weeks immediately prior to the public hearing.

18. The evidence indicates that Petitioners have met the requirements of Section 190.005, Florida Statutes, regarding the submission of the Amended Petition and satisfaction of filing fee requirements.

19. Petitioners bear the burden of establishing that the Amended Petition meets the relevant statutory criteria set forth in Section 190.005(1)(e)1.-6., Florida Statutes.

20. The evidence indicates that all portions of the Amended Petition and other submittals have been completed and filed as required by law.

21. The evidence indicates that all statements contained within the Amended Petition as corrected and supplemented at the hearing are true and correct.

22. The evidence indicates that the establishment of the District is not inconsistent with any applicable element or portion of the State Comprehensive Plan or the Palm Coast Comprehensive Plans.

23. The evidence indicates 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.

24. 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.

25. 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.

26. The evidence indicates 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, Petitioners have met all statutory requirements, and there appears to be no reason not to grant the Amended Petition and establish the proposed Palm Coast Park Community Development District by rule. For purposes of drafting such a rule, a metes and bounds description of the proposed Community Development District can be found at Amended Petition Exhibit 3. Also, the five persons designated to serve as the initial members of the Board of Supervisors of the Palm Coast Park Community Development District are identified in paragraph 5 of the Amended Petition.

DONE AND ENTERED this 28th day of March, 2005, 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 28th day of March, 2005.

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

Michael D. Chiumento III, Esquire Chiumento & Davenport, P.A.

4B Old Kings Road North Palm Coast, Florida 32137

Docket for Case No: 04-004313

Orders for Case No: 04-004313