STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: TAMPA PALMS OPEN SPACE ) AND TRANSPORTATION COMMUNITY )

DEVELOPMENT DISTRICT, PETITION ) CASE NO. 89-3654 FOR A RULE UNDER CHAPTER 190, )

FLORIDA STATUTES. )

)

RECOMMENDED ORDER AND REPORT

A public hearing was held in this case on September 15, 1989, in Tampa, Florida, before Donald D. Conn, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Cynthia Henderson, Esquire

5209 Tampa Palms Boulevard Tampa, Florida 33647

For Hillsborough John Dixon Wall, Esquire County: Assistant County Attorney

725 East Kennedy Boulevard Tampa, Florida 33602

For City of Jeffrey T. Shear, Esquire Tampa: Assistant City Attorney

Fifth Floor, City Hall

315 East Kennedy Boulevard Tampa, Florida 33602

STATEMENT OF THE ISSUES

The issue in this case is whether the Florida Land and Waiter Adjudicatory Commission should grant or deny the petition filed under Chapter 190, Florida Statutes, for the establishment of the Tampa Palms Open Space and Transportation Community Development District.

PRELIMINARY STATEMENT

At the local public hearing, counsel for the Petitioner conducted a presentation and William Donald Whyte, Vice President of Tampa Palms Development Corporation, testified in support of the petition. Counsel for the City of Tampa entered a statement on the record that although there are a number of unresolved issues between the City and the Petitioner regarding some of the future workings of the proposed district, the City does not have any objection to the creation of the proposed community development district. Counsel for Hillsborough County stated that the County has no objection to this new district.

In addition to the Petitioner's application containing Exhibits A through L, exhibits received on behalf of the Petitioner at the public hearing include proof of public hearing notice publication in The Tampa Tribune (Exhibit 1), proof of service of notice of the public hearing (Exhibit 1A), notice of hearing published in the Florida Administrative Weekly (Exhibit 1B), a statement of goals and policies of the State and City of Tampa Comprehensive Plans (Exhibit 2), and a letter from the civil engineering firm of Heidt & Associates, Inc. (Exhibit 3).

Also attending the public hearing were attorneys Gordon Schiff, representing the O. W. Casperson Trust, Keith Bricklemyer, representing USAA property owner, and Rick Eckhard, representing City Plaza Partners. Consultants to the Petitioner were also in attendance.

The transcript of the final hearing was filed on September 28, 1989, and there were no posthearing memoranda or proposed orders.

FINDINGS OF FACT

The following findings constitute a summary of the evidence, and are based upon the presentation and testimony presented at the public hearing, as well as Exhibits A through L of the petition and Exhibits 1 through 3 presented at the public hearing:

1. On June 23, 1989, a petition for creation of the Tampa Palms Open Space and Transportation Community Development District was filed with the Secretary of the Florida Land and Water Adjudicatory Commission.

   
   

2. After staff review of the petition, the Secretary determined that it satisfied all requirements of Section 190.005(1)(a) and (b), Florida Statutes, and forwarded the petition to the Division of Administrative Hearings for assignment of a Hearing Officer to conduct a local public hearing, pursuant to Section 190.005(1)(d), Florida Statutes. The Secretary's letter of transmittal to the Division of Adminstrative Hearings constitutes certification that the petition addresses all those elements required by Section 190.005(1)(a), including a metes and bounds description of the district, written consent to the establishment of the district by owners of the property to be included in the district, a designation of five persons to be initial members of the board of supervisors, the proposed name of the district, a map showing major trunk water mains and sewer interceptor and out falls currently in existence on the property, proposed time tables for construction and related estimates of costs, a proposed master plan for the district and abutting property, and an economic impact statement. There was no dispute at the public hearing concerning the sufficiency of the petition, or the payment of all required fees.

   
   

3. The date of September 15, 1989, was established for the local public hearing by Notice of Hearing issued on July 25, 1989. Notice of the local public hearing was published in The Tampa Tribune on August 17, 24, 31 and September 7, 1989, and was also published in the Florida Administrative Weekly on August 18, 1989.

   
   

4. No persons filed written statements in support of, or in opposition to, the petition as authorized by Rule 42-1.012(3), Florida Administrative Code. Neither the City of Tampa nor Hillsborough County conducted a public hearing under Section 190.005(1)(c), Florida Statutes. Therefore, this recommendation and report is based solely on the testimony, presentation, and exhibits received at the local public hearings including the petition.

5. The Petitioner has proposed the creation of the Tampa Palms Open Space and Transportation Community Development District to provide the major transportation network and open space improvements to certain designated properties, composed of approximately 5,200 acres located in the City of Tampa's northeast annexation area, and bounded on the east by County Road 581 and Interstate 75, and on the west by Interstate 275. A community development district is a local unit of special purpose government. Over a fifteen year period, this district is proposed to develop into a community with approximately 8,700 dwelling units, and approximately 22 million square feet of office and commercial development. The proposed development constitutes a planned mixed use development of regional impact.

   
   

6. This newly proposed district will lie adjacent to, and overlap a portion of, an existing district known as the Tampa Palms community Development District which was created in 1982. The overlapping areas were referred to as Tracts 3 and 4, and constitute approximately 2,000 acres of the new district's total acreage. To the southwest of these overlapping tracts, are Tracts 1 and 2 of the existing district, and to the northeast of these overlapping tracts is an area to be included in the new district comprised of about 3,200 acres which has been acquired subsequent to the creation of the existing district, and therefore, is not included within the current district boundaries.

   
   

7. Since its creation in 1982, the Tampa Palms community Development District has issued bonds, to be repaid through special assessments, for the immediate installation of. infrastructure and landscaping that otherwise would likely have taken the developer longer to complete on a less financially advantageous basis. In Tracts 1 and 2, infrastructure is being completed in advance of home building. The existing district has also undertaken maintenance functions for its open spaces.

   
   

8. Special assessments made in Tracts 1 and 2 will not be made by the existing district in Tracts 3 and 4, the overlapping tracts, if this new district is created. Instead, special assessments in Tracts 3 ands 4, as well as the remaining areas of the new district, will be made through this new Proposed district. Thus, the existing Tampa Palms Community Development District will not levy special assessments in the overlapping area if the Tampa Palms Open Space and Transportation Community Development District is approved. This will be done in the overlapping area through the new district so that those residents and property owners in this overlapping area will not be subject to special assessments by two different districts. However, residents in the overlapping area will be subject to ad valorem taxes by both districts, although the ad valorem assessments by the new district would only be for district administration and not for maintenance. Thus, the ad valorem assessments of the new district in the overlapping area are expected to be nominal, and the representatives of property owners present at the public hearing expressed no objection to this.

   
   

9. The Petitioner intends to apply to extend the boundaries of the existing district in the future to include the entirety of the new district, if created. When this occurs, the Tampa Palms Community Development District will have all operation and maintenance functions, and all special assessments will be made through the Tampa Palms Transportation and Open Space Community Development District. The district which is here at issue will then be phased out over a twenty year period, and only the Tampa Palms Community Development District will remain to operate the total acreage. The existing district is better suited to have on-going maintenance functions because it already has a

   maintenance facility, vehicles and equipment, and a staff of maintenance workers, and thus, the costs associated with establishing a second maintenance unit can be avoided.

   
   

10. The initial board of supervisors for this proposed district are shown as Exhibit D to the petition, to include:

    
    

    William I. Livingston, Chairman Tampa Palms Development Corporation 5209 Tampa Palms Boulevard

    Tampa, FL 33647

    
    

    James W. Apthorp, Vice Chairman Gulfstream Development Corporation 5209 Tampa Palms Boulevard

    Tampa, FL 33647

    
    

    Charles Davis, Sr.

    Davis Brothers Insurance Agency, Inc. 4401 West Kennedy Boulevard

    Tampa, FL 33602

    
    

    Steven J. Kuzma Ernst & Whinney

    1 Tampa City Center, Suite 2000 Tampa, FL 33602

    
    

    Joseph House

    United Services Automobile Association Southeast Regional Home Office

    5505 West Cypress Street Tampa, FL 33607

    
    

11. Based upon the representation of counsel for the Petitioner who prepared the petition, the absence of any dispute among those persons in attendance at the local public hearing, and upon review and consideration of said petition and evidence presented at the public hearing, it is found that statements contained therein are true and correct, as required by Section 190.005(1)(e)1, Florida Statutes.

    
    

12. The creation of the district is found to be consistent with the State and City of Tampa Comprehensive Plans, as required by Section 190.005(1)(e)2. A specific analysis is as follows:

    
    

    State Comprehensive Plan

    
    

    1. Natural Systems and Recreational Lands (Section 187.201(10)(a),(b)10-13, Florida Statutes) -- The proposed district will provide residents of the Tampa Palms community with recreational opportunities which would not otherwise be available. Residents of the existing Tampa Palms Community Development District have three parks, jogging and bike paths, as well as sidewalks throughout the community. These parks also provide a means of preserving environmentally sensitive lands and protected species habitat. Similar natural systems and recreational lands will be provided in the proposed district.

    2. Land Use (Section 187.201(16)(a),(b)1, Florida Statutes) -- The location of this proposed district has been designated as a regional activity center in the City of Tampa and Regional Comprehensive Plans. Thus, this is an area which has been recognized as appropriate for growth. The lands within the proposed district are subject to an existing development order that was approved prior to the City's adoption of its North Tampa Transportation Network, and which is currently under review in order to approve a change in alignment of the transportation network to match the network within the community with the City's proposed network. The City has constructed a major sewer force main along County Road 581 through the proposed boundaries of the district, and therefore, approval of this district will maximize the City's investment by encouraging planned growth in an area in which the City has a considerable investment.

       
       

    3. Public Facilities (Section 187.201(18)(a), (b)3, 4,6,7,9, Florida Statutes) -- The planning and financing mechanisms available to the district for providing public facilities are consistent with this goal and policies. Bonding capabilities provide an innovative but stable source of revenue, and the

       benefit-allocation analysis which will be performed as part of the bond validation process will ensure that costs incurred will be allocated to those who will benefit from available facilities. Since private investment will be required to finance part of the improvements, a partnership between the private and public sectors will be formed, with costs allocated to those who benefit from the resulting improvements.

       
       

    4. Transportation (Section 187.201(20)(a), (b)13,14, Florida Statutes) -- The transportation network within the proposed district will be aligned with the North Tampa Transportation Network, and thereby provide a coordinated approach to transportation improvements. Financing mechanisms and private-public sector financing partnerships will provide the means by which the district will be able to acquire dedicated rights-of-way prior to commencement of development, and this will result in lower costs for the district.

       
       

    5. Government Efficiency (Section 187.201(21)(a), (b)1, 2,5,13 Florida Statutes) -- This proposal would create an independent special taxing district, and will promote cooperation in governmental activities between the City of Tampa, Hillsborough County and the Petitioner. Neither the City nor County expressed any opposition to this petition at the public hearing. It is reported that residents within the existing Tampa Palms Community Development District have stated at public hearings held for two bond issues, that they support the added costs for services which the existing district provides. The Petitioner intends to negotiate the terms of an agreement with local government which will set forth the plan for development of the district's proposed transportation network in order to ensure that the district constructs those facilities which the City believes will be compatible with its long-term plans.

       
       

       City of Tampa Comprehensive Plan

       
       

    6. Recreation and Open Space Element -- The City of Tampa northeast annexation area, which is the area in which the proposed district is located, has been designated as an area which will have a major impact upon future recreational needs, requiring at least 48 acres of neighborhood park space to be established through a cooperative use agreement with the property owners within the annexation area. One of the purposes informing this district is to provide residents of Tampa Palms with recreational opportunities which would not otherwise be available. The existing Tampa Palms Community Development District provides residents with three parks, including playground, picnic, volleyball, tennis and restroom facilities, as well as jogging and bike paths, and

       sidewalks. While these existing recreational facilities were established jointly by the developer and the existing district, the district has ongoing maintenance responsibilities which will continue even after development activities have ceased. Similar open space and recreational uses are proposed for this new district.

       
       

    7. Land Use Element -- The establishment of this district will provide a means of financing the construction of the transportation network set forth in the Transportation and Capital Improvement Elements of the City's Plan. Additional financing sources are needed to fund the network for already approved development, and the district will be able to issue bonds, which special assessments will be pledged to repay. Since the Tampa Palms area has been designated as a regional activity center in the City and Regional Comprehensive Plans, this area is recognized as appropriate for growth. Approval of this district is consistent with this designation, and will encourage growth in an area in which the City has a substantial capital investment, having constructed a major sewer force main along County Road 581 through the district's boundaries.

       
       

    8. Capital Improvement Element -- With additional planning and financing mechanisms available to the District, such as the issuance of bonds, a stable source of revenues and financing will be provided which will allow those who benefit from the facilities which will become available to pay their share of the costs of improvements. The district proposes to provide, and finance, needed transportation and open space facilities in an area designated for growth within the City. Thus, approval of the district is consistent with the City's stated capital improvement goal.

    
    

13. The land within the proposed district encompasses approximately 5,200 acres, is contiguous and compact, and includes an area which has undergone review as a development of regional impact under Chapter 380, Florida Statutes. When fully developed, it is proposed that the district will contain 8,700 dwelling units and over 20 million square feet of office and retail uses in a type of urban village. According to Toxey A. Hall, P.E., of the civil engineering firm of Heidt and Associates, Inc., the area of the land within the proposed district is of sufficient size, compactness and contiguity to be developed as one functional interrelated community, as required by Section 190.005(1)(e)3.

    
    

14. The creation of this district will allow the transportation and open space requirements of this community to be addressed without having to wait for local governments to finance infrastructure, and would avoid the usual situation where growth occurs before services are available resulting in significant traffic congestion, and the lack of other basic services for residents. The lands in this district are primarily under one ownership and one master plan. The Petitioner has prior experience with the Tampa Palms Community Development District. Therefore, the Petitioner has the knowledge and ability to carry out organized, efficient and planned growth and development which will match the size and cost of facilities needed to actual development in the district. The creation of this district will result in the availability of lower financing costs than would otherwise be available to a private developer. The presently forecasted interest rate which would be available to the district is nine and one-half per cent, whereas for private developers the forecasted rate is one and a half to two per cent over the prime rate of ten and one-half to eleven per cent. Additionally, the rate available to the district is fixed, while for private developer's it is an adjustable rate. The formation of this district presents a way by which capital infrastructure can be delivered in an area

    appropriate for growth without overburdening local government and taxpayers. Thus, the district is the best alternative available for delivering community development services and facilities to the area to be serviced by the district, as required by Section 190.005(1)(e)4.

    
    

15. The development within the proposed district is governed by Chapter 380, Florida Statutes. Previously, development orders were issued for Tampa Palms and a portion of the proposed new district known as Tampa Tech. These two development orders are now being combined into one development order, and it is represented that local, regional and state governmental agencies regulating developments of regional impact have reviewed and approved the level of development planned, including the plans for infrastructure. The City of Tampa's comprehensive plan has been approved by the Department of Community Affairs, and, as found above, the creation of this new district will be consistent with major elements of the City's Plan. Thus, the proposed services and facilities of this district will be compatible with the services and uses of existing local and regional community development services and facilities, as required by Section 190.005(1)(e)5.

    
    

16. The residents within the existing Tampa Palms Community Development District have attended numerous meetings and public hearings of the district at which they have confirmed their willingness to pay additional taxes to receive an increase in public services. They have experienced the quality of open space maintenance and the effectiveness of the transportation network in the existing district, and it is represented that the residents support the increased costs associated with the district as long as infrastructure is provided in advance of development. The Petitioner has established that this is an area which is amenable to separate special-district government, as required by Section 190.005(1)(e)6, and in fact, the City of Tampa has designated this specific area as one for which a community development district would be a viable alternative.

    
    

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the parties, and the subject matter in this cause. Section 190.005(1)(d), Florida Statutes, and Rule 42-1.009(1)(b), Florida Administrative Code.

    
    

18. Chapter 190, Florida Statutes, was initially adopted in 1980 to address the State's concern for community infrastructure and to service projected population growth without financial or administrative burden to existing general purpose local governments. The powers of community development districts implement the single, narrow legislative purpose of ensuring that future growth in this State will be complemented by an adequate community infrastructure provided in a manner compatible with all state and local regulations. State v. Frontier Acres Community Development District, Pasco County, 472 So.2d 455, 457 (Fla. 1985); Section 190.002, Florida Statutes.

    
    

19. The Florida Land and Water Adjudicatory Commission is authorized by Chapter 190, Florida Statutes, to create community development districts, by rule, to finance, maintain and operate major improvements necessary for community development. The powers and duties of such districts are prescribed in Chapter 190, and they are defined as local units of special purpose government. Section 190.003(6), Florida Statutes.

    
    

20. The record establishes that there is no dispute that the petition complies with the requirements of Section 190.005(1)(a), Florida Statutes, concerning the contents of any application for the formation of a community

    development district, and also that the applicant has paid all required fees prescribed by Section 190.005(1)(b). Public hearings were not held by Hillsborough County or the City of Tampa, as authorized by Section 190.005(1)(c), but a properly noticed local public hearing was held at the request of the Florida Land and Water Adjudicatory Commission under Section 190.005(1)(d), at which the City and County, as well as several property owners, were represented.

    
    

21. It has been clearly established by the record in this proceeding that the Petitioner has met the criteria for the establishment of the Tampa Palms Open Space and Transportation Community Development District, as set forth in Section 190.005(1)(e)1 through 6, Florida Statutes. These criteria are separately discussed, and findings relating thereto have been included, in the above Findings of Fact, particularly Findings 11 through 16.

RECOMMENDATION

Based upon the foregoing, it is recommended that the Florida Land and Water Adjudicatory Commission grant this Petition and establish the Tampa Palms Open Space and Transportation Community Development District in accordance with Section 190.005(1)(f), Florida Statutes, with those boundaries set forth in the legal description contained at Exhibit B of the Petition, and with those initial members of the board of supervisors shown at Exhibit D of the Petition.

RESPECTFULLY SUBMITTED AND ENTERED this 18th day of October, 1989 in Tallahassee, Florida.

DONALD D. CONN

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 18th day of October, 1989.

COPIES FURNISHED:

Cynthia Henderson, Esquire 5209 Tampa Palms Boulevard Tampa, FL 33647

John Dixon Wall, Esquire Assistant County Attorney 725 East Kennedy Boulevard Tampa, FL 33602

Jeffrey T. Shear, Esquire Assistant City Attorney Fifth Floor, City Hall

315 East Kennedy Boulevard Tampa, FL 33602

Patty Woodworth, Secretary Florida Land and Water

Adjudicatory Commission Executive Office of the Governor The Capitol, PL-05

Tallahassee, FL 32399-0001

Information Copies to Persons In Attendance:

Gordon J. Schiff, Esquire

P.O. Box 1531 Tampa, FL 33601

Keith W. Bricklemyer, Esquire 777 South Harbour Island Blvd. Suite 350

Tampa, FL 33602

Richard D. Eckhard, Esquire

P.O. Box 1288 Tampa, FL 33601

Docket for Case No: 89-003654

Orders for Case No: 89-003654