STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: PETITION FOR RULE ) CREATION – MADEIRA )

COMMUNITY DEVELOPMENT ) Case No. 05-3553 DISTRICT. )

)

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

On November 15, 2005, a local public hearing under

Section 190.005(1)(d), Florida Statutes (2004),1 was conducted by Donald R. Alexander, Administrative Law Judge of the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Jonathan T. Johnson, Esquire

Wesley S. Haber, Esquire Hopping Green & Sams, P.A. Post Office Box 6526

Tallahassee, Florida 32314-6526 STATEMENT OF THE ISSUE

The issue before the Florida Land and Water Adjudicatory Commission (FLWAC) is whether to grant the Petition to Establish the Madeira Community Development District (Petition). The local public hearing was for the purpose of gathering information in anticipation of quasi-legislative rulemaking by FLWAC.

PRELIMINARY STATEMENT

The Petition was filed by Ponce Associates, LLC, with the Secretary of FLWAC on August 20, 2005. It requested that FLWAC adopt a rule to establish a community development district known as Madeira Community Development District on certain property in the City of St. Augustine (City). Prior to this time, Petitioner provided for delivery of a copy of the Petition and its attachments, along with the requisite filing fee, to the City and St. Johns County.

On September 26, 2005, the Secretary of FLWAC certified that the Petition contained all required elements and forwarded the Petition to DOAH for the purpose of conducting a local public hearing under Section 190.005(1)(d), Florida Statutes.

The local public hearing was scheduled at 1:00 p.m., Tuesday, November 15, 2005, in the Lightner Building, St. Augustine, Florida. Notice of the hearing was published in accordance with Section 190.005(1)(d), Florida Statutes. On November 10, 2005, Petitioner pre-filed the testimony of its witnesses.

At the local public hearing, Petitioner presented the testimony of John C. Kunkel, Chief Operating Officer of Stokes Land Group; Karen M. Taylor, an expert in local and regional comprehensive planning; Susan L. Rudd, with the firm of Hill, Boring, Dunn & Associates, Inc., an expert in civil engineering;

and William J. Rizzetta, with the firm of Rizzetta & Company, Inc., an expert in the field of economics and financial analysis and special district government operation and establishment.

Petitioner also offered Petitioner's Exhibits A through Q, which were received into evidence at the hearing. A list of all of Petitioner's Exhibits is attached to this Report as Appendix A.

Four members of the public attended the hearing and provided oral comments. They included M. Lea Meadows,

Peter Grant, Kris Shreiner, and Margo Geer. Mr. Grant offered Grant Exhibits 1 and 2, while Ms. Meadows offered Ulanowicz Exhibit 1, which is a copy of an email and letter authored by Mr. Robert E. Ulanowicz, who did not attend the hearing. Those exhibits were received in evidence. In addition, St. Johns County sent a representative, Isabelle C. Lopez, Senior Assistant County Attorney, to the hearing for the purpose of reading a Motion passed by the Board of County Commissioners.

The Motion has been received as County Exhibit 1 and is addressed in greater detail in this Report. A list of the non- parties' exhibits is attached to this Report as Appendix B.

After the close of the hearing, the record was left open for ten days for submission of any additional written statements in support of or in opposition to the Petition, as allowed by Florida Administrative Code Rule 42-1.012(3). Additional written statements in opposition to the Petition were filed by

Peter Grant, M. Lea Meadows, Robert E. Ulanowicz, and

Gina Burell. Affidavits in response to those statements were filed by William J. Rizzetta, Susan L. Rudd, John C. Kunkel, and Karen M. Taylor on December 8, 2005. The Transcript of the local public hearing was filed on December 14, 2005. Finally, on December 14, 2005, M. Lea Meadows filed a second written statement. Petitioner's Motion to Strike Untimely Public Filings is hereby granted, and Ms. Meadows' untimely statement has been disregarded.

SUMMARY OF RECORD

1. Petition and Related Matters

   
   

   1. Petitioner is seeking the adoption of a rule by FLWAC to establish a community development district proposed to consist of approximately 1,006.5 acres located entirely within the boundaries of the City. (The original Petition described the size of the proposed District as approximately 1,010 acres. However, Petitioner later amended the District's legal description and removed a condominium known as the Tennis Village Condominiums from within its boundaries.) The suggested name for the proposed District is the Madeira Community Development District. The Petition states in relevant part that there are no out-parcels within the area to be included in the proposed District; that Petitioner has obtained written consent to establish the District; that five persons who are residents

      of the State of Florida and are citizens of the United States have been designated to serve on the Board of Supervisors; that the lands to be included in the District are zoned Planned Unit Development (PUD); and that there are no existing major trunk water mains and wastewater interceptors within the currently undeveloped lands proposed to be included within the District. It also states that 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 Petition.

   2. The sole purpose of this proceeding was to consider the establishment of the District as proposed by Petitioner.

      Matters relating to land use approvals, land use changes, the highest and best use of the property proposed to be included in the District, and environmental permitting matters are not within the scope of the proceeding. See § 190.002(2)(d), Fla. Stat. ("any matter concerning permitting or planning of the development is not material or relevant" to the "process of establishing such a district").

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

   
   

   1. Petitioner's Composite Exhibit A was identified for the record as a copy of the Petition and its attachments (Petition Exhibits 1-8) as filed with FLWAC.

   2. Witness Kunkel testified that he had reviewed the contents of the Petition, as modified at the hearing, and approved its findings. Witness Kunkel also generally described the attachments to the Petition. Finally, Witness Kunkel testified that the Petition and its attachments, as modified , and admitted into evidence as Composite Exhibit A are true and correct to the best of his knowledge.

   3. Witness Rudd testified that she had assisted with the preparation of Petition Exhibits 2, 3, 5, 6, and 7. Witness Rudd generally described the services and facilities the District is expected to provide. Witness Rudd testified that the attachments to the Petition, specifically Exhibit 7 to the Petition which was admitted into evidence, were reasonable estimated construction costs based on her experience.

   4. Witness Rizzetta, a witness qualified as an expert in special district operations and management and analysis, testified that his firm had prepared Exhibit 8 to the Petition, the Statement of Estimated Regulatory Costs (SERC). Witness Rizzetta also testified that the SERC complied with the requirements of Section 120.541(2)(f), Florida Statutes.

   5. Witness Kunkel testified that the Petition, as amended, included true and correct written consents to establish the proposed District from one hundred percent of the owners of the

      real property located within the lands to be included in the proposed District.

   6. Witness Kunkel further testified that the Petition included the names of the Board of Supervisors of the proposed District. The five persons designated to serve as the initial Board of Supervisors are J. Kevin Setzer, Chris Vanzant, Barbara Moore, Bill Brown, and Gary B. Davenport. However, witness Kunkel requested that J. Kevin Setzer be replaced with Cindy Norman and asked that the Petition be amended to reflect this change. This request was granted. Each of these individuals is a citizen of the United States and a resident of the State of Florida.

   7. The Petition and its applicable exhibits, as modified at hearing and through post-hearing submissions, 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. Witness Taylor, an expert in the field of local and regional comprehensive planning, reviewed the proposed District in light of the requirements of the State Comprehensive Plan codified in Chapter 187, Florida Statutes.

   2. Witness Taylor testified that she reviewed the Petition and that the establishment of the District is not inconsistent with the State Comprehensive Plan.

   3. According to Ms. Taylor, two subjects of the State Comprehensive Plan apply directly to the establishment of the proposed District as do the policies supporting those subjects.

   4. First, Subject 15, Land Use (Section 187.201(15), Florida Statutes), recognizes the importance of enhancing the quality of life in Florida by ensuring that future development is located in areas that have the fiscal ability and service capacity to accommodate growth. The proposed District will have the fiscal ability to provide services and facilities to the population in the designated growth area and help provide infrastructure in an area which can accommodate development within the area in a fiscally responsible manner.

   5. Second, Subject 25, Plan Implementation (Section 187.201(25), Florida Statutes), requires that systematic planning shall be incorporated into all levels of government throughout the State. This goal encourages intergovernmental coordination. The proposed District is consistent with this element of the State Comprehensive Plan because the proposed District will systematically plan for the construction, operation, and maintenance of the public improvements and the community facilities authorized under Chapter 190, Florida

      Statutes, subject to and not inconsistent with the local government comprehensive plan and land development regulations. Additionally, the District meetings are publicly advertised and are open to the public so that all District property owners and residents can be involved in planning for improvements.

   6. Witness Taylor also testified that she reviewed the relevant portions of the effective local comprehensive plans in light of the establishment of the proposed District. Specifically, she testified that she reviewed both the St. Johns County and the City Comprehensive Plans. Both plans were reviewed because, although the property has been annexed into the City and PUD zoning was adopted by the City, the City has not yet amended its Comprehensive Plan. Therefore, the project is governed by the St. Johns County Comprehensive Plan. See

      § 171.062(2), Fla. Stat. ("If the area annexed was subject to county land use plan and county zoning or subdivision regulations, these regulations remain in full force and effect until the municipality adopts a comprehensive plan amendment that includes the annexed area.") Additionally, because the City's land development regulations reference its Comprehensive Plan, the project needs to be reviewed under these guidelines as well. Witness Taylor opined that the establishment of the proposed District is not inconsistent with either the St. Johns County or the City's Comprehensive Plans. Additionally, the

      Director of Planning and Building for the City sent a letter to Petitioner stating that the City "will adopt amendments to the Future Land Use Map that assign a future land use designation to areas of the city that do not have a city designated land use, such as the Madeira at St. Augustine project." The letter further provides that, "[i]n the interim, the Madeira at St.

      Augustine project has an approved development plan, consistent with the St. Johns County Comprehensive Plan, for which development can occur."

   7. Witness Taylor identified certain provisions in the St. Johns County Comprehensive Plan that would be furthered upon the establishment of the District. They include Goal H.1, which requires the orderly and efficient provision of infrastructure facilities and services such as sanitary sewer, potable water, drainage, roads, utilities, recreation, and open space. (However, the witness did not identify in which element of the Comprehensive Plan the Goal is found.) According to Ms. Taylor, the proposed District furthers this provision because it will provide these types of improvements in an efficient and cost- effective manner to the lands within the boundaries of the proposed District. In addition, Objective H.1.7 requires the County to manage fiscal resources in a manner sufficient to ensure the provision of needed infrastructure. (Again, the witness did not identify in which element of the Comprehensive

      Plan the Objective is found.) Once established, the proposed District would provide the required infrastructure within its boundaries without reducing the fiscal resources of the County or decreasing the County's bonding limits. Also, Objective

      H.1.8 (which is not further identified) requires future development in the County to pay its fair share of the cost of new infrastructure. The proposed District would finance the necessary improvements, and the landowners and residents of the proposed District who benefit from these improvements would then pay for the improvements in the form of special and/or non-ad valorem assessments. Finally, Goal G.1 (not otherwise identified) directs the County to work cooperatively with other units of government to address issues and concerns. Mechanisms such as interlocal agreements can ensure that the proposed District and the County work together and coordinate the construction, maintenance, and management of the required improvements.

   8. Additionally, witness Taylor identified provisions of the City's Comprehensive Plan that are furthered by the establishment of the District.

   9. First, witness Taylor referred to a Capital Improvements Element Goal in the City's Comprehensive Plan, identified by her as "CI Goal 9J5.016(3)(a),"2 which she stated requires that the City manage its financial resources to

      adequately provide public facilities in a manner that protects investments in existing facilities, maximizes the use of existing facilities, and promotes orderly compact urban growth. Ms. Taylor also testified that the proposed District furthers this provision because it will provide facilities in an efficient manner, maximize the use of existing facilities, and promote an orderly and compact growth.

   10. Next, the witness referred to Capital Improvements Element Objective 3, which provides that the City shall not issue or approve development orders or land use plan amendments, unless the present or projected availability of financial resources is sufficient to maintain the adopted levels of service standards for all public facilities needed to support the development, including existing and projected facility needs. As to this Objective, the witness noted that the proposed District will provide the required infrastructure within its boundaries without using the fiscal resources of the City and will maintain the adopted levels of service standards for public facilities outside of the District.

   11. Witness Taylor next referred to Capital Improvements Element Objective 4, which provides that future development will pay all proportional costs to maintain the existing adopted level of service standards for public facilities. Ms. Taylor indicated that the proportionate costs will include the impact

       of the individual development upon the facility and services. Further, the establishment of the proposed District will assure that the necessary improvements are financed and the landowners and residents of the proposed District who benefit from these improvements will then pay for the improvements in the form of special and/or non-ad valorem assessments.

   12. An Intergovernmental Coordination Element Goal, identified by the witness as "ICE Goal 9J5.015(3)(a),"3 provides that the plans and activities of the City are coordinated with the plans and activities of other government agencies to assure that necessary public services are provided in the most effective and efficient manner possible, and that development in one jurisdiction does not degrade the quality of life for residents in adjacent jurisdictions. According to the witness, the establishment of the District is in conformance with the Goals, Policies, and Objectives of the St. Johns County Comprehensive Plan, which provides for similar standards; therefore, the establishment of this District will provide for the coordinated plans and activities necessary to assure the efficient provision of the necessary public services.

   13. Finally, the witness referred to Intergovernmental Coordination Element Objective 1, which provides that the City coordinate the comprehensive plan and future amendments with the comprehensive plans of other jurisdictions, including St. Johns

       County. As to this Objective, the witness noted that future operation of this District will be coordinated with the Goals, Policies, and Objectives of both the St. Johns County and the City's Comprehensive Plans.

   14. Based on the evidence in the record, it appears that the proposed District will not be inconsistent with any applicable element or portion of the State or Local Comprehensive Plans.

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. Testimony on this factor was provided by witnesses Rudd, Rizzetta, and Taylor. As noted above, the lands that comprise the proposed District will consist of approximately 1,006.5 acres, located entirely within the borders of the City.

   2. All of the land in the proposed District is part of an approved Planned Unit Development and has been annexed into the

      City.

      
      

   3. Witness Rudd testified that the lands to be included

      
      

      within the proposed District have sufficient significant infrastructure needs to be developable as a functionally interrelated community. She further testified that the necessary infrastructure can be provided by the proposed District in a cost-effective manner based on the specific design

      of the community. Finally, she testified that the use of one overall development plan will ensure proposed improvements are provided in an efficient, functional, and integrated manner.

   4. Witness Rizzetta testified that the proposed District is of a sufficient size to constitute a functionally interrelated community. He further testified that because the proposed District will have sufficient population density and property size, it will require the basic facilities and services of a community. Adequate planning, design, financing, construction, management, and maintenance are required to provide the community with appropriate infrastructure.

   5. Public comment was submitted regarding the size of the District. Specifically, a member of the public argued that the Petition was improperly filed with FLWAC because the District will contain less than 1,000 developable acres. However, Section 190.005(1), Florida Statutes, which addresses districts of 1,000 acres or more, does not differentiate between developable and non-developable acres. Additionally, FLWAC has established community development districts that contain fewer than 1,000 developable acres. Further, all of the 1,006.5 acres are included in the PUD, are owned by Petitioner, and the proposed District is intended to have a significant role in the maintenance of the non-developable acres consistent with the preferences of the St. Johns River Water Management District.

      Finally, FLWAC has already determined that the Petition is sufficient.

   6. With respect to compactness, witness Rizzetta testified that compactness measures the spatial relationship between the lands and land uses within a community. He further testified that the District is sufficiently compact to be developed as one functional interrelated community. He concluded that sufficient compactness, like that present in the development plan for the District, allows the District to efficiently and cost-effectively provide the proposed perpetual maintenance of any District improvements or facilities on a long term basis.

   7. Regarding contiguity, witness Rizzetta testified that to be sufficiently contiguous, the property must be close enough to allow the efficient design and use of the infrastructure. Witness Rizzetta further testified that the community included in the District is sufficiently contiguous for planning purposes and to allow for efficient and cohesive District governance.

   8. Witness Taylor testified that the proposed District has sufficient land area and is sufficiently compact and contiguous to be developed with infrastructure improvements as one functionally interrelated community. With respect to size, witness Taylor testified that, because of its acreage, the proposed District will have sufficient population density and

      property size to require all the basic improvements of a community. With respect to compactness, she testified that the compact configuration of the land to be included within the proposed District would allow the District to deliver the proposed construction and perpetual maintenance of District improvements in a long-term, cost-efficient manner.

   9. The record shows that from engineering, economic, management, and planning 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. Witness Rizzetta indicated that it is presently intended that the District will participate in the construction or provision of certain infrastructure improvements as outlined in the Petition.

   2. He further stated that the installation and maintenance of infrastructure systems and services by the District are expected to be paid through the imposition of special assessments, which will be borne only by property owners within the District that benefit from the infrastructure systems. Use of such assessments will ensure that the real

      property benefiting from District services is the same property which pays for them.

   3. Witness Rizzetta identified two types of alternatives to the establishment of the District for the purpose of installation and maintenance of infrastructure systems. First, the City 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) or a homeowners' association.

   4. According to Mr. Rizzetta, the District will be governed by and managed by its own board, thereby allowing greater focus on the needs of the District and its facilities and services.

   5. He added that the District will 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.

   6. Finally, Mr. Rizzetta testified that the District has the advantage of being a unit of local government, which has access to the tax exempt bond market. It allows the infrastructure to be in place sooner than might happen without

      the District. Additionally, the District is a long-term, stable, perpetual entity capable of funding, constructing, and in some cases maintaining facilities over the lifetime of the facilities. Further, a community development district is a preferred entity by the St. Johns River Water Management District.

   7. The record indicates that from planning, economic, engineering, and management perspectives, 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. Mr. Rizzetta opined 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. The District's facilities and services within the proposed boundaries will not duplicate any existing regional services or facilities which are provided to the lands within the District by another entity. None of the proposed services or facilities are presently being provided by another entity for the lands to be included within the District.

   2. Therefore, 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 District is amenable to separate special-District government.

   
   

   1. As cited previously, Petitioner's witnesses have testified that from planning, economics, engineering, and special district management 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 and become a functionally interrelated community. The community to be included in the District has a need for basic infrastructure systems to be provided.

   2. From planning, engineering, economic, and management perspectives, the area that will be served by the District is amenable to separate special-district government. The configuration and size of the proposed District is not different from other districts established and existing throughout the state.

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, which are discussed below.

   1. Elements of the Petition

      
      

2. FLWAC has certified that the Petition meets all of the requirements of Section 190.005(1)(a), Florida Statutes.

   1. Statement of Estimated Regulatory Costs

      
      

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, Petitioner, 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.

5. Administrative costs incurred by St. Johns County and the City related to rule adoption should be minimal and are offset by the required filing fee of $15,000 to each of them. Benefits to the City and 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 the District facilities. Location within the District 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 District will include 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 all

   
   

   petitions to include a SERC which meets the requirements of Section 120.541, Florida Statutes. FLWAC has already certified the sufficiency of the Petition. The Petition contains a SERC, which meets all requirements of Section 120.541, Florida Statutes.

   1. Other Requirements

      
      

8. Petitioner has complied with the provisions of Section 190.005(1)(b)1., Florida Statutes, in that the City and St. Johns County were each paid the requisite filing fees of

   $15,000.

9. Section 190.005(1)(d), Florida Statutes, requires Petitioner to publish notice of the local public hearing in a newspaper of general circulation in the City and St. Johns County for four consecutive weeks prior to the hearing. The notice was published in the St. Augustine Record, a newspaper of general circulation, for four consecutive weeks on October 18, October 25, November 1, and November 8, 2005.

   1. Local Government Support for Establishment

   
   

10. Pursuant to the requirements of Section 190.005(1)(b), Florida Statutes, Petitioner filed a copy of the Petition and the $15,000 filing fee with both St. Johns County and the City prior to filing the Petition with FLWAC.

11. The St. Johns County Board of County Commissioners did not hold a public hearing on the establishment of the District as permitted by Section 190.005(1)(c), Florida Statutes. However, Isabelle C. Lopez, Senior Assistant County Attorney with St. Johns County, read aloud a Motion passed at the September 20, 2005 Board of County Commission meeting. In relevant part, the Motion provided that the Board did not support the District's buying mitigated wetlands, nor paying for any environmental hazardous material cleanup, such as arsenic on the golf course. Petitioner has indicated that the District is not expected to purchase wetlands. As to the cleanup issue, the District's site formerly housed a golf course and suffers from

    soil contamination. In order for the infrastructure to be installed, the District will, by permit, necessarily have to engage in certain environmental remediation and cleanup measures, which have been factored into the costs of the infrastructure projects. The power of environmental remediation and clean up is granted to the District pursuant to Section 190.012(1)(e), Florida Statutes, and is not an optional power which any local government may withhold from the District. See

    § 190.005(2)(d), Fla. Stat.

    
    

12. The City did not hold a public hearing on the establishment of the District as permitted by Section 190.005(1)(c), Florida Statutes.

    I. Public Comment Regarding the Establishment of the District.

    
    

13. Public comment received during the hearing and in letters filed after the hearing raised a wide range of issues, some of which have already been addressed in this Report. They include: (1) the inclusion/exclusion of the Tennis Village Condominiums within the boundaries of the District; (2) Petitioner's compliance with Section 190.005(1)(e)2., Florida Statutes, which requires a determination as to whether the establishment of the new District is inconsistent with local and state comprehensive plans; (3) the number of developable acres within the District; and (4) the developer's remediation of

    contamination on private lots. Other issues raised include environmental permitting issues, the impact of hurricanes on the developed property, and the appropriateness of moving forward with the development of the property; however, these are not relevant to the proceedings and are therefore not addressed in this Report. See § 190.02(2), Fla. Stat. As to the comments which suggest that a parcel known as the Tennis Village Condominiums was erroneously included in the land which will form the new District, Petitioner has amended its legal description to reflect that the Tennis Village Condominiums are not included in the boundaries of the District. Further, a rebuttal affidavit by witness Kunkel reflects that the condominium project is not an exclusion surrounded by other lands that are in the District.

    APPLICABLE LAW

    
    

14. Section 190.005(1)(a)1.-8., Florida Statutes, requires that a petition for the establishment of a community development district must be filed with FLWAC and contain the following information: a metes and bounds description of the external boundaries of the proposed district; the written consent to the establishment of the district by all landowners whose real property is to be included in the district; a designation of five persons to be the initial members of the board of supervisors; the proposed name of the district; a map of the

    proposed district showing current major trunk water mains and sewer interceptors and outfalls if in existence; the proposed timetable for construction of the district services and the estimated cost of such services; a designation of the future general distribution, location, and extent of public and private uses of land proposed for the area within the district by the future land use element of the effective local government comprehensive plan; and a SERC. The record shows that Petitioner filed its Petition with FLWAC which contained all of the statutory information.

15. Section 190.005(1)(b), Florida Statutes, requires that the petitioner pay a filing fee of $15,000.00 to the county and to each municipality "the boundaries of which are contiguous with, or contain all or a portion of, the land within the external boundaries of the district." The petitioner must also serve a copy of the petition on those local, general-purpose governments. The record shows that these requirements have been met.

16. Section 190.005(1)(c), Florida Statutes, allows the county and each municipality described in the preceding paragraph to conduct a public hearing "to consider the relationship of the petition to the factors specified in paragraph (e)." The record shows that neither local government opted to conduct a public hearing.

17. Section 190.005(1)(d), Florida Statutes, requires that an administrative law judge conduct a local public hearing pursuant to Chapter 120, Florida Statutes. Such a hearing was conducted on November 15, 2005. In addition, the same statute requires the petitioner to cause a notice of the hearing to be published in a newspaper of general circulation at least once a week for four successive weeks immediately prior to the hearing. This requirement has also been satisfied.

18. Section 190.005(1)(e)1.-6., Florida Statutes, enumerates the factors that FLWAC must consider in determining whether to grant or deny a petition. They include:

    1. Whether all statements contained within the petition have been found to be true and correct.

       
       

    2. 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.

       
       

    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.

       
       

19. The evidence was that Petitioner has satisfied each of the foregoing factors.

CONCLUSION

Based upon the record evidence, as supplemented and corrected, the Petition appears to meet all statutory requirements. Therefore, the Petition should be granted and Petitioner authorized to establish the Madeira Community Development District in the City of St. Augustine.

DONE AND ENTERED this 29th day of December, 2005, in Tallahassee, Leon County, Florida.

S

DONALD R. ALEXANDER

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 29th day of December, 2005.

ENDNOTES

1/ All references are to Florida Statutes (2004).

2/ The citation for the Goal given by the witness corresponds to Department of Community Affairs (DCA) Rule 9J-5.016(3)(b)3. Therefore, it is likely that this citation is incorrect.

Because a copy of the pertinent portions of the City's Comprehensive Plan was not made a part of the record, the correct citation cannot be verified.

3/ Again, the citation for the cited Objective corresponds to a DCA rule and is likely incorrect.

COPIES FURNISHED:

Michael P. Hansen, Secretary

Florida Land and Water Adjudicatory Commission The Capitol, Suite 1802

Tallahassee, Florida 32399-0001

Barbara Leighty, Clerk

Growth Management and Strategic Planning The Capitol, Suite 1802

Tallahassee, Florida 32399-0001

Raquel A. Rodriguez, General Counsel Office of the Governor

The Capitol, Suite 209 Tallahassee, Florida 32399-0001

Heidi Hughes, General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100

Jonathan T. Johnson, Esquire Hopping Green & Sams, P.A. Post Office Box 6526

Tallahassee, Florida 32314-6526

Appendix A

Exhibit A - Petition to Establish the Madeira Community Development District

Exhibit B - Ordinances 2001-11 and 2001-12, both of the City of St. Augustine

Exhibit C - October 7, 2005 letter from DCA addressing the petition to establish community development district

Exhibit D - Former St. Johns County Future Land Use Map Exhibit E - Current St. Johns County Future Land Use Map Exhibit F - Current City of St. Augustine Future Land Use Map

Exhibit G - Letter from the planning director of the City of St. Augustine

Exhibit H - Current City of St. Augustine Zoning Map

Exhibit I - Map of the project site showing the breakdown of acreage per land use

Exhibit J - Copy of the warranty deed evidencing title to the property making up the District

Exhibit K - Copy of the title policy issued at the time the current landowner purchased the property

Exhibit L - Letter from the Commission determining that the petition was complete and sufficient

Exhibit M - Proof of publication of the public hearing Exhibit N - Notice of Receipt of Petition

Exhibit O - Letter from St. Johns River Water Management District

Exhibit P - Rizzetta & Company, Inc.'s company profile Exhibit Q - Copy of the effective State Comprehensive Plan

Appendix B

Grant Exhibit 1 - Copy of slip opinion in St. Johns/St. Augustine Committee for Conservation and Recreation, Inc. et al. v. City of St. Augustine, 909 So. 2d 575 (Fla. 5th DCA 2005)

Grant Exhibit 2 - Map depicting soil arsenic levels on Ponce de Leon Golf Course

Ulanowicz Exhibit 1 - Copy of email and letter dated November 15, 2005, with attachment

County Exhibit 1 - Certified copy of draft excerpt from the September 20, 2005, Board of County Commissioners Meeting, Item No. 9

Docket for Case No: 05-003553

Orders for Case No: 05-003553