STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
IN RE: PETITION FOR RULE ) AMENDMENT-VILLAGES OF WESTPORT ) COMMUNITY DEVELOPMENT DISTRICT )
Case No. 06-0351
)
ADMINISTRATIVE LAW JUDGE'S REPORT TO
THE FLORIDA LAND AND WATER ADJUDICATORY COMMISSION
Pursuant to Section 190.005(1)(d), Florida Statutes,1
J. Lawrence Johnston, an Administrative Law Judge (ALJ) of the Division of Administrative Hearings (DOAH), conducted a local public hearing in Jacksonville, Florida, on April 25, 2006.
APPEARANCES
For Petitioner: Jonathan T. Johnson, Esquire
Wesley S. Haber, Esquire Hopping Green & Sams, P.A.
123 South Calhoun Street Post Office Box 6526
Tallahassee, Florida 32314-6526
STATEMENT OF THE ISSUE
At issue in this case is whether the Florida Land and Water Adjudicatory Commission (FLWAC) should grant the Petition to Amend the Boundary of the Villages of Westport Community Development District (CDD, or District) filed on December 23, 2005 (Petition), as amended and supplemented.
PRELIMINARY STATEMENT
On June 14, 2004, FLWAC adopted Florida Administrative Code Rule Chapter 42QQ-12 establishing the CDD on land in the City of Jacksonville, Duval County. Subsequently, it was determined that the legal description used in the Rule establishing the District erroneously overstated the approximate acreage within the metes and bounds of the legal description by 37.21 acres.
In addition, the developer acquired eight parcels of property, totaling approximately 164.86 acres, which the District wanted to add to its boundaries. To correct the error in the legal description and to add the 164.86 acres, the CDD's board of supervisors filed the Petition.
By letter dated January 17, and filed January 26, 2006, FLWAC's Secretary certified under Rule 42-1.009 that the Petition contained all required elements and forwarded it to DOAH for the local public hearing required under Section 190.005(1)(d), Florida Statutes.
On February 7, 2006, the assigned ALJ entered an Order disclosing his former employment by the law firm representing Petitioner and certain social interactions with counsel for Petitioner. On February 10, 2006, the matter was scheduled for a local public hearing in Jacksonville on April 25, 2006. On
February 14, 2006, FLWAC moved to disqualify the ALJ, which was granted, and the case was transferred to the undersigned ALJ.
The City of Jacksonville held public hearings on January 24, February 14, March 14 and March 28, 2006, and on
March 28, 2006, passed Ordinance 2006-45-E finding the Petition to be true and correct and expressing support for the amendment of the CDD’s boundaries. (A copy of the City of Jacksonville’s Ordinance 2006-45-E was received in evidence as Hearing Exhibit G.3)
On March 29, 2006, Petitioner sent FLWAC a letter essentially amending the Petition by asking that certain pages and exhibits of the Petition be replaced. The purpose of the letter and replacements was to have the Petition reflect the actual overstatement of the approximate acreage within the metes and bounds legal description, which was 41.66 acres, not 37.21 acres. In addition, the developer had acquired three more parcels which the Petitioner wanted to add to the District, for a total of eleven parcels and 195.16 acres, instead of eight parcels and 164.86 acres.
On April 7, 2006, FLWAC published a Notice of Receipt of Petition in the Florida Administrative Weekly, as required by Rule 42-1.010.
A local public hearing was held in the City of Jacksonville, Duval County, Florida, on April 25, 2006. At the hearing, Petitioner presented three witnesses: Cynthia C. Jones, president of Intervest Construction, Inc.; Neal Brockmeier, a licensed professional engineer, a Civil Department Head with Greenhorne & O’Mara, Inc., and an expert in civil engineering; and James A. Perry, of Governmental Management Services, LLC, an expert in the field of economics and financial analysis. Petitioner offered Hearing Exhibits A through J, which were received in evidence. No member of the public appeared at the local public hearing.
Petitioner caused a transcript of the local public hearing to be prepared. The Transcript was filed with DOAH on May 11, 2006. On June 2, 2006, Petitioner filed a proposed Administrative Law Judge's Report to the Florida Land and Water Adjudicatory Commission (proposed Report), which has been considered in the preparation of this Report.
SUMMARY OF PETITION AND EVIDENCE
As indicated in the Preliminary Statement, by adopting Rule Chapter 42QQ-1, FLWAC established the Villages of Westport CDD on land in the City of Jacksonville, Florida. The legal description in Rule 42QQ-1.002 consisted of a sequential combination of the legal descriptions of four parcels of land,
Parcel A through Parcel D. Subsequently, it was determined that the legal description used in Rule 42QQ-1.002 erroneously overstated the approximate acreage within the metes and bounds of the legal description of Parcel A. In addition, the developer had acquired additional parcels of property (Parcel E through Parcel L), which the District wanted to add to. To correct the error in the legal description and to add the additional acreage, the CDD's board of supervisors filed the Petition.
A. Petition
The Petition, with 13 exhibits, was received in evidence as Hearing Exhibit A. It sought to correct the error in the legal description in Rule Chapter establishing the District by subtracting 37.21 acres from the approximate acreage said to be within the metes and bounds of the legal description of Parcel A. In addition, it sought to add to the District eight parcels of property acquired by the developer (Parcel E through Parcel L), totaling approximately 164.86 acres.
The Petition stated the name of the CDD but did not list the names of the members of the board of supervisors. Petition Exhibit 7 was the consent of Westport Villages, Inc., as owner, to adding Parcel E through Parcel L, which were described in "Composite Exhibit A" to the consent, to the
District. Petition Exhibit 9 designated future general distribution, location, and extent of public and private uses of land in the future land use element of the appropriate general purpose local government. The Petition did not contain a separate map showing current major trunk water mains and sewer interceptors and outfalls, if any; however, attached as Exhibit A to witness Jones’s pre-filed testimony was a letter to FLWAC, dated January 13, 2006, which included such a map. The Petition stated that the time frame for the construction of the improvements for the expansion parcels was 2006-2007. Petition Exhibit 11 detailed the estimated costs of construction for the improvements to be constructed in the expansion parcel. In addition, the letter dated January 13, 2006, attached as Exhibit A to witness Jones’s pre-filed testimony, included a more detailed break-down of costs by year. Petition Exhibit 12 was a Statement of Estimated Regulatory Costs (SERC).
The Petition asserted that the City of Jacksonville was paid "the filing fee of $1,500 required pursuant to section 190.046(1)(d)2, Florida Statutes." (Hr. Ex. A).
Petitioner recognized that the Petition, as filed with FLWAC, contained errors. To address these errors, Petitioner sent FLWAC a letter on March 29, 2006, essentially amending the Petition by asking that certain pages and exhibits of the Petition be replaced. The purpose of the letter and
replacements was to have the Petition reflect the actual overstatement of the approximate acreage within the metes and bounds legal description of Parcel A, which was 41.66 acres, not
37.21 acres. The letter replaced Petition Exhibit 3 with a legal description to reflect the correct approximate number of acres in Parcel A. In addition, the developer had acquired three more parcels (consisting of rights-of-way described as Parcels M through O), which Petitioner also wanted to add to the District, for a total of eleven parcels and 195.16 acres, instead of eight parcels and 164.86 acres. The letter supplemented Petition Exhibit 4 to add maps and legal descriptions for Parcel M through O. The Petition replacement pages also changed the reference to the landowners giving consent to the amendment of the District’s boundaries from Westport Villages, Inc., to Morteza Hosseini Kargar and Mitchell
R. Montgomery. The letter replaced Petition Exhibit 7 to reflect the landowner consents for Morteza Hosseini Kargar and Mitchell R. Montgomery. However, the replacement consents did not address Parcel L, M, or N.
The March 29, 2006, letter describing the revisions and supplements to the Petition was attached as Exhibit B to witness Jones’s pre-filed testimony, which was received in evidence as Hearing Exhibit B. Witness Jones testified that the Petition, and its attached exhibits, as supplemented and revised, was true
and correct to the best of her knowledge. However, as indicated, the replacement consents do not cover Parcels L, M, or N.
In addition, despite the Petition, corrections, supplements, testimony, and hearing exhibits, it still is not clear from the Petition, the evidence, or the Petitioner's proposed Report, what legal description Petitioner is proposing for the expanded District.
The legal description in Rule 42QQ-1.002 consists of a sequential combination of the legal descriptions of Parcel A through Parcel D. The first attempt to correct the legal description for Parcel A is contained in Petition Exhibit 3. The second corrected legal description for Parcel A may be found in what witness Jones's pre-filed testimony refers to as Revised [Petition] Exhibit 3, which is attached as the "Replacement for [Petition] Exhibit 3 - Revised Legal Description for Parcel A" to the letter dated March 29, 2006, which is Exhibit B to witness Jones's pre-filed testimony. The metes and bounds description of the parcels to be added to the District are what witness Jones's pre-filed testimony refers to as Supplemented [Petition] Exhibit 4. It appears that Supplemented [Petition] Exhibit 4 is supposed to consist of a sequential combination of the legal descriptions of the first eight parcels to be added (Parcel E through Parcel L), which may be found in Petition
Exhibit 4, together with a combination of the sequential legal descriptions of the other three parcels to be added (Parcel M through Parcel O), which may be found attached as "Supplement to Exhibit 4 - Parcels M, N, and O" to the letter dated March 29, 2006 (which, again, is Exhibit B to witness Jones's pre-filed testimony).
However, witness Jones's pre-filed testimony also refers to another legal description, which "shows the metes and bounds of the amended District"--namely, Petition Exhibit 5. (Hrg. Ex. B, p. 2, ln. 35) This legal description is said to describe the "CDD (Overall)", consisting of 1,493.006 acres, more or less. But this legal description of the "CDD (Overall)" is not a sequential combination of the legal descriptions of the various individual parcels, A through O, and it is not clear from the evidence that is describes the same property that would be described in a sequential combination of the legal descriptions of those parcels.
It also should be noted that, as stated in the Petition, "[t]here is one excluded parcel within the proposed amended boundary of the District." While not addressed in the evidence, it appears from Petition Exhibit 6 that the excluded parcel is within Parcel B of the existing District although the exclusion is not mentioned in Rule 42QQ-1.002. Regardless which legal description--the sequential combination of the legal
descriptions of Parcels A through O, or the "CDD (Overall)" legal description--the legal description of the District should exclude the parcel identified in Petition Exhibit 6.
Witness Perry testified that Petition Exhibit 12, the SERC, was prepared by Carey Garland of Fishkind & Associates, Inc. Although he did not prepare the SERC, witness Perry testified that he reviewed the SERC and that the SERC was true and correct to the best of his knowledge.
The SERC included in the Petition contained a discussion of the costs to government agencies, the State of Florida, and the City of Jacksonville of implementing and enforcing the Rule creating the District.
Beyond administrative costs related to rule adoption, the State will incur virtually no costs from amending the District in addition to the minimal costs already incurred from its original creation, which are related to the incremental costs to various agencies of reviewing one additional local government report. The District, as proposed to be amended, will require no subsidies from the State.
Administrative costs incurred by the City of Jacksonville related to rule adoption should be minimal and are offset by the filing fee paid to the City of Jacksonville.
Consumers choosing to buy property in the District will pay non-ad valorem or special assessments for the District
facilities. Generally, District financing will be less expensive than maintenance through a property owners' association or capital improvements financed through developer loans. Benefits to consumers in the area within the CDD 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. Ultimately, the property owners within the District as well as the users of the District facilities choose to accept the Districts costs in return for the benefits that the District provides.
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
At the hearing, Petitioner introduced in evidence the pre-filed testimony of Neal Brockmeier. In his testimony, Mr. Brockmeier stated that the “proposed amended District is not inconsistent with any applicable provision of the State Comprehensive Plan." (Hr. Ex. H, p. 6, ln. 20-21).
Mr. Brockmeier’s testimony identifies three goals, which are set forth in the State Comprehensive Plan, that are consistent with and are furthered by the Petition. These goals
include Goal 15, Land Use; Goal 17, Public Facilities; and Goal 25, Plan Implementation.
Additionally, Mr. Brockmeier’s testimony noted that the “establishment of the proposed amended District is not inconsistent with any applicable provision of the Jacksonville 2010 Comprehensive Plan.” (Hr. Ex. H, p. 7, ln. 39-44.)
On March 28, 2006, the City of Jacksonville City Council passed Ordinance 2006-45-E. This Ordinance was introduced into evidence as Hearing Exhibit G. Section 1(a) of Ordinance 2006-45-E provides: "All statements contained within the Petition on file as Second Revised Exhibit 1, are true and correct." Section 1(b) of Ordinance 2006-45-E provides that the “amendment of the proposed District is not inconsistent with any applicable element or portion of the state comprehensive plan or the adopted 2010 Comprehensive Plan.” It is not clear from the evidence whether the Ordinance addressed the original Petition or the Petition as revised by the letter dated March 29, 2006.
Witness Perry, who is experienced in the financial aspects of community development districts, testified that the “District, as amended, will not be inconsistent with any applicable provision of the State Comprehensive Plan.” (Hr. Ex. I, p. 7, ln. 16-17).
According to Mr. Perry, two goals of the State Comprehensive Plan apply directly to the boundary amendment to
the District. Specifically, Mr. Perry noted that the amendment of the District’s boundaries furthers Goals 17 and 20 of the State Comprehensive Plan. Goal 17, Public Facilities, directs the state to protect the substantial investments that already exist and plan for and finance new facilities to serve residents in a timely, orderly and efficient manner. Goal 20, Government Efficiency, directs the Florida government to economically and efficiently provide the amount and quality of services required by the public. (Hr. Ex. I, p. 7, ln. 35-39).
Finally, Mr. Perry testified that the District, as amended, will not be inconsistent with any of the applicable provisions of the Comprehensive Plan for the City of Jacksonville.
Based on the testimony and exhibits in the record, the District, as proposed to be amended, will not be inconsistent with any applicable element or portion of the State Comprehensive Plan or the effective local government comprehensive plan.
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
Testimony on this factor was provided by witnesses Jones, Brockmeier, and Perry. The lands that comprise the District, as amended, consist of approximately 1,493.001 acres,
located entirely within the borders of the City of Jacksonville, Florida. All of the land in the District, as proposed to be amended, is part of a planned community included in the Villages of Westport Planned Unit Development.
Witness Jones testified that the “amended District will have sufficient land area, and be sufficiently compact and contiguous to be developed, with the roadways, stormwater management and other infrastructure systems, facilities and services contemplated.” (Hr. Ex. B, p. 4, ln. 28-31). Ms. Jones concluded that the “District, with the inclusion of the Expansion parcels, will operate as one functionally related community.” (Hr. Ex. B, p.4, ln. 31-32).
Witness Perry testified that the “District, as amended, has sufficient land area, and is sufficiently compact and contiguous to be developed as one functional, interrelated community . . . .” (Hr. Ex. I, p. 4, ln. 25-26).
Witness Brockmeier testified that with “the decrease of 41.66 and the addition of 195.16 acres, resulting in a net addition of 153.50 acres, more or less, the District will remain of sufficient size, compactness and contiguity to be developed as an interrelated community.” (Hr. Ex. H, p. 4, ln. 17-19).
Based on the evidence, the area of land to be included in the District, as proposed to be amended, is of sufficient
size, is sufficiently compact, and is sufficiently contiguous to be developed as a single functionally interrelated community.
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
According to Mr. Perry, “[a]ll of the infrastructure needed for the Expansion Parcels is the same type of infrastructure that the District has already successfully provided, or is in the process of providing, to the existing District.” (Hr. Ex. I, p.3, ln.22-25). Mr. Perry concluded that the District, in his view, is “the best alternative to provide the services and facilities needed in the Expansion Parcels.” (Hr. Ex. I, p. 3, ln. 31-32).
Mr. Perry also testified that there are two alternatives for providing community development services to the expansion parcels. First, to facilitate economic development, accommodate new growth, and provide new services, the City could perhaps provide the selected facilities. Second, facilities and services might be provided by some private means, with maintenance delegated to a property owners' association (POA).
The St. Johns River Water Management District prefers a CDD over a homeowner’s association or a POA, as a preferred entity to manage the storm water system.
Witness Brockmeier testified that the “services and facilities needed in the Expansion Parcels can efficiently and effectively be provided by the existing District, as the District has provided these same type of facilities to the lands within it.” (Hr. Ex. H, p. 5, ln. 14-16). He further testified that the “Expansion Parcels are immediately adjacent to the existing District, and interconnection of these facilities is likely to be more efficient if the District undertakes it." (Hr. Ex. H, p. 5, ln. 16-18). Based on the foregoing, Mr. Brockmeier concluded that the “community development district approach is the best alternative for providing necessary community development services and facilities to the area to be served by the District, therefore creating self-sufficient development.” (Hr. Ex. H, ln. 3-5).
Based on the evidence, the District, as proposed to be amended, 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
Witness Perry testified that the “District’s facilities and services within the proposed amended boundaries will not duplicate any available regional services or
facilities.” (Hr. Ex. I, p. 5, ln. 16-17). Thus, witness Perry opined that “the services and facilities proposed to be provided by the District as amended are not incompatible with the uses and existing local and regional facilities and services.” (Hr. Ex. I, p. 5, ln. 10-12).
Witness Brockmeier testified that there will be no duplication of service. He further testified that “the services and facilities to be provided by the District as amended are not incompatible, and in fact are fully compatible, with the capacities and uses of existing local and regional community development facilities, and with those provided by the District.” (Hr. Ex. H, p. 4, ln. 36-39).
Based on the evidence, the community development services and facilities of the District, as proposed to be amended, 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
Witness Perry testified that the “addition of the Expansion Parcels will not affect the ability of the District to operate as a separate special district government.” (Hr. Ex. I,
p. 5, ln. 29-30). Mr. Perry further explained that “[e]xpanding the boundaries of the existing District will only add more area
to be served by the government already in place.” (Hr. Ex. I, p. 5, ln. 30-31).
Witness Brockmeier testified that the “District will constitute an efficient mechanism for providing necessary capital improvements for development of the area.” (Hr. Ex. H,
p. 5, ln. 34-35). Mr. Brockmeier further noted that the District worked in an efficient manner to provide the existing infrastructure, and he believes that the District “is capable of continuing to provide that infrastructure to the Expansion Parcels.” (Hr. Ex. H, p. 5, ln. 35-37). Based on this, Mr. Brockmeier concluded that “the area identified in the petition to be included within the District, as initially established and as amended, is amenable to being served by a separate special district government.” (Hr. Ex. H, p. 5. ln. 28-30).
Based on the evidence, the area that will be served by the District, as amended, is amenable to being served by a separate special district government.
Publication of Notice
Petitioner published notice of the local public hearing in the Florida Times-Union, which is a newspaper of general paid circulation in the City of Jacksonville, Duval County. The notice was published for four consecutive weeks prior to the hearing, on March 28, 2006; April 4, 2006; April 11, 2006; and April 18, 2006.
Local Government Support for Establishment
Petitioner filed a copy of the Petition and a $1,500 filing fee with the City of Jacksonville.
The City of Jacksonville City Council held public hearings on the boundary amendment of the District, as permitted by Section 190.005(1)(c), Florida Statutes. As a result of those hearings, the City passed Ordinance 2006-45-E. Section 2 of the Ordinance provides that the “Council hereby expresses its support for the promulgation by FLWAC of a rule amending the Villages of Westport Community Development District.”
As indicated, it is not clear from the evidence whether the Ordinance addressed the original Petition or the Petition as revised by the letter dated March 29, 2006.
Public Comment
There was no public comment at the local public hearing.
APPLICABLE LAW
Procedure
The Petition was filed pursuant to Section 190.046(1)(g), Florida Statutes. Section 190.046(1)(g) provides that a petition to amend which seeks to add greater than a cumulative total of more than ten percent of the land in the initial district, or more than a total of 250 acres, shall be
considered a petition to establish a new district and shall follow all of the "procedures specified" in Section 190.005, Florida Statutes. Regardless whether considered to be "procedure," a petition to contract or expand the boundaries of a CDD must include the information required by Section 190.005(1)(a)1. and 8. See § 190.046(1)(a), Fla. Stat.
Section 190.005(1)(a)1. requires that a description by metes and bounds of the area to be serviced by the CDD with a specific description of real property to be excluded from the district. As indicated, it is not clear what legal description Petitioner is proposing for the expanded District--the sequential combination of the legal descriptions of Parcel A through Parcel O, or the "CDD (Overall)" description. It also is not clear from the evidence that the two legal descriptions describe the same land. Given the record in this case, it would seem to be better to use the sequential combination of the legal descriptions of Parcel A through Parcel O.
Section 190.005(1)(a)8. requires a SERC meeting the requirements of Section 120.541, Florida Statutes. As indicated, the Petition contained a SERC that appears to meet the requirements of Section 120.541, Florida Statutes.
In addition to having to meet the requirements of Section 190.005(1)(a)1. and 8., a petition to expand a CDD "shall describe the proposed timetable for construction of any
district services to the area, the estimated cost of constructing the proposed services, and the designation of the future general distribution, location, and extent of public and private uses of land proposed for the area by the future land use plan element of the adopted local government local comprehensive plan." See § 190.046(1)(a), Fla. Stat. The Petition in this case included all of this required information.
The other paragraphs of Section 190.005(1)(a) require that a petition to establish a CDD filed with FLWAC must: (¶2) set forth that the petitioner has the written consent of the owners of all of the real property proposed to be in the CDD, or has control by "deed, trust agreement, contract or option" of all of the real property; (¶3) designate the five initial members of the board of supervisors of the CDD; (¶4) propose the district's name; (¶5) contain a map showing current major trunk water mains and sewer interceptors and outfalls, if any; (¶6) propose a timetable for construction and an estimate of construction costs; and (¶7) designate future general distribution, location, and extent of public and private uses of land in the future land use element of the appropriate general purpose local government. As indicated, whether those requirements must be met in this case depends on whether they are considered "procedure."
Section 190.005(1)(a)2., Florida Statutes, requires the written consent of the owners of all of the real property proposed to be in the CDD, while Section 190.046(1)(e), Florida Statutes, only requires the written consents of the owners of the land to be added or deleted (since the filing of the petition for expansion by the district's board of supervisors constitutes the consent of all other landowners under that statute.) If Section 190.005(1)(a)2., Florida Statutes, were "procedure," it would govern. However, in at least one case, FLWAC has granted a petition to contract a CDD's boundaries when only the written consent of the owners of the parcel to be deleted from the CDD was obtained. See In Re: Petition To Contract The Tampa Palms Open Space And Transportation Community Development District, DOAH Case No. 96-4213, 1997 Fla. Div. Adm. Hear. LEXIS 5229 (DOAH Report January 29, 1997)(Rule 42J-1.002 amended on July 31, 1997). It would appear from the precedent that FLWAC does not consider Section 190.005(1)(a)2., Florida Statutes, to be "procedure." That being the case, Section 190.046(1)(e), Florida Statutes, would apply, and the board of supervisors, in filing the Petition, would be presumed to have consented on behalf of all owners of land in the CDD other than the expansion parcel. However, as indicated the replacement for Petition Exhibit 7 does not include a consent for Parcel L, M, or N.
As to Section 190.005(1)(a)3., the Petition does not designate the five initial members of the board of supervisors of the CDD. Although no direct precedent has been located, if paragraph 2 of the statute is not considered "procedure," paragraph 3 probably also would not be considered "procedure." In any event, paragraph 3 does not seem applicable to amendment of the boundaries of a CDD.
As to Section 190.005(1)(a)5., the Petition does not appear to contain a map showing current major trunk water mains and sewer interceptors and outfalls, if any. Although no direct precedent has been located, if paragraphs 2 and 3 of the statute are not considered "procedure," it could be that paragraph 5 also would not be considered "procedure." In any event, attached as Exhibit A to witness Jones’s pre-filed testimony was a letter to FLWAC which included such a map.
To the extent they are considered "procedure," the other requirements of Section 190.005(1)(a) appear to be met by the Petition. FLWAC certified that “all required elements, as defined in section 190.005(1)(a), Florida Statutes, are contained in the [P]etition.” (Hr. Ex. C).
Section 190.005(1)(b), Florida Statutes, requires that the petitioner pay a filing fee of $15,000 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 also must submit a copy of the petition to those local, general-purpose governments.
Under Section 190.005(1)(b)1., Florida Statutes, the filing fee is $15,000, not the $1,500 filing fee required under Section 190.046(1)(d)2., Florida Statutes. But FLWAC has granted petitions for boundary amendments exceeding the limits in Section 190.046(1)(f)-(g), Florida Statutes, where the local government did not require payment of the $15,000 filing fee required under Section 190.005(1)(b)2., Florida Statutes. See
In Re: Petition For Rule Amendment - Fiddler's Creek Community Development District, DOAH Case No. Case No. 02-4357, Fla.
Div. Adm. Hear. LEXIS ----, 2003 WL 603380, *13 (DOAH Report
February 25, 2003)(Rule 42X-1.002 amended September 16, 2003)(county accepted $1,500 as payment in full, waiving any additional fee, because of the net "wash" of expansions and contraction acreage and because that amount more than paid for County staff work in connection with the CDD); In Re: Petition
to Contract the Circle Square Woods Community Development District, DOAH Case No. 02-1118, 2002 Fla. Div. Adm. Hear. LEXIS 1017 (DOAH Report June 24, 2002)(Rule 42S-1.002 amended
October 1, 2002)(county waived the filing fee). In one case, a CDD was initially established by FLWAC where the required fees were waived. In Re: Petition for Rule Creation - Tesoro
Community Development District, DOAH Case No. 04-1042, 2004 Fla. Div. Adm. Hear. LEXIS 1937 (DOAH Report July 13, 2004)(Rule
42XX-1.001 adopted January 10, 2005)(county and municipality waived the filing fee).
In this case, the filing fee Petitioner paid to the City of Jacksonville was $1,500, not $15,000. The City of Jacksonville accepted the filing fee and, after conducting public hearings, adopted Ordinance 2006-45-E expressing its support for the boundary amendment. Under the precedents, either the filing fee should not be considered a matter of "procedure," making $1,500 the requisite fee, or the City effectively waived any shortfall, making the fee paid acceptable.
Section 190.005(1)(c), Florida Statutes, permits the county and each municipality described in the preceding paragraph to conduct a public hearing on the petition. Such local, general-purpose governments may then present resolutions to FLWAC as to the establishment of a CDD on the property proposed in the petition. As indicated, in this case the City of Jacksonville conducted public hearings and adopted Ordinance 2006-45-E expressing its support for the boundary amendment. However, it is not clear from the evidence whether the Ordinance addressed the original Petition or the Petition as revised by the letter dated March 29, 2006.
Section 190.005(1)(d), Florida Statutes, requires an ALJ to conduct a local public hearing pursuant to Chapter 120, Florida Statutes, and states that the hearing "shall include oral and written comments on the petition pertinent to the factors specified in paragraph (e)." Florida Administrative Code Rule 42-1.012 provides that "all persons shall have an opportunity to present evidence and argument on all issues involved" and that the ALJ "shall permit parties to examine and cross-examine or question witnesses." Section 190.005(1)(d), Florida Statutes, also specifies that the petitioner publish notice of the local public hearing once a week for the four successive weeks immediately prior to the hearing.
Petitioner published adequate notice of the local public hearing in a newspaper of general paid circulation in the county in which the District is located.
Six Factors to be Considered
Section 190.005(1)(e), Florida Statutes, 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:
Whether all statements contained within the petition have been found to be true and correct.
Whether the establishment of the district is inconsistent with any applicable element of the effective local government comprehensive plan.
Whether the area of land within the district is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developable as one functional interrelated community.
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.
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.
Whether the area that will be served by the district is amenable to separate special-district government.
The evidence was that the statements in the Petition, with its attached exhibits, as corrected and supplemented, taken as a whole, would appear to be true and correct, except that the replacement for Petition Exhibit 7, which purports to be the consents of the owners of all the expansion parcels, does not include consents for Parcel L, M, or N.
The evidence was that establishment by rule of the District on the expanded property as proposed in the Petition, as corrected and supplemented, is not inconsistent with the State Comprehensive Plan and City of Jacksonville Comprehensive Plan.
The evidence was that the size, compactness, and contiguity of the proposed land area are sufficient for the CDD, as proposed to be amended, to be developable as one functional interrelated community.
The evidence was that the CDD is the best alternative presently available for delivering community development systems, facilities, and services to the proposed land area.
The evidence was that the services and facilities provided by the CDD, as proposed to be amended, will be compatible 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 CDD, as proposed to be amended, is amenable to separate special- district government.
CONCLUSION
Based on the record evidence and the law, there do not appear to be consents from the landowners of Parcel L, M, or N of the expansion area. Otherwise, there would appear to be no reason not to grant the Petition, as corrected and supplemented, and amend Rule 42QQ-1.002 by revising the original legal description to correct the error in the legal description and add the expansion parcels to the Villages of Westport Community Development District. However, as indicated, it is not clear what legal description Petitioner is proposing for the expanded
District. On this record, it would seem to be better to use the sequential combination of the legal descriptions of Parcel A through Parcel O. Regardless which legal description is used, it should exclude the parcel identified in Petition Exhibit 6.
DONE AND ENTERED this 22nd day of June, 2006, in Tallahassee, Leon County, Florida.
S
J. LAWRENCE JOHNSTON 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 22nd day of June, 2006.
ENDNOTES
1/ Unless otherwise indicated, statutory citations are to the 2005 codification of the Florida Statutes.
2/ Unless otherwise indicated, rule citations are to the current codification of the Florida Administrative Code.
3/ The prolific use of exhibits in this proceeding can cause confusion. To clarify, exhibits attached to the Petition will be called Petition Exhibits or Pet. Ex. , and exhibits introduced in evidence at the hearing will be called Hearing Exhibits or Hr. Ex. .
COPIES FURNISHED:
Michael P. Hansen, Secretary Office of the Governor
The Capitol, Room 1802 Tallahassee, Florida 32399-1001
Raquel Rodriguez, General Counsel Office of the Governor
The Capitol, Suite 209 Tallahassee, Florida 32399-1001
Barbara Leighty, Clerk
Growth Management and Strategic Planning
The Capitol, Room 1802 Tallahassee, Florida 32399-0001
Jonathan T. Johnson, Esquire Hopping, Green, & Sams, P.A. Post Office Box 6526 Tallahassee, Florida 32314-6526
Gladys Perez, Esquire
Executive Office of the Governor Room 209
The Capitol
Tallahassee, Florida 32399-1001
| Issue Date | Document | Summary |
|---|---|---|
| Jun. 22, 2006 | Recommended Order | Petition to Amend the CDD was filed to correct an error in the legal description and add land. Except that the legal description is not clear; land that was excluded was not described, and all the consents were not provided, the amendment is acceptable. |
