STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: PETITION TO CONTRACT THE )

TAMPA PALMS COMMUNITY ) Case No. 00-2866

DEVELOPMENT DISTRICT. )

)

)

REPORT TO THE FLORIDA LAND AND WATER ADJUDICATORY COMMISSION

Pursuant to Section l90.005 (1)(d), Florida Statutes, Lawrence P. Stevenson, Administrative Law Judge of the Division of Administrative Hearings, conducted a local public hearing in Tampa, Florida, on September 22, 2000.

APPEARANCES

For New Tampa, Jonathan T. Johnson, Esquire Inc.: Jody Lamar Finklea, Esquire

Hopping, Green, Sams & Smith, P.A.

123 South Calhoun Street Post Office Box 6526 Tallahassee, Florida 32314

Donna J. Feldman, Esquire Zimmet, Unice, Salzman &

Feldman, P.A.

2650 McCormick Drive

Suite 100

Clearwater, Florida 33759

For Tampa Palms Michael G. Cooke, Esquire Community Carlton, Fields, Ward, Emmanuel, Development Smith & Cutler, P.A.

District: One Harbour Place Post Office Box 3239

Tampa, Florida 33601-3239

STATEMENT OF THE ISSUE

The issue is whether the Florida Land and Water Adjudicatory Commission should contract certain lands from the boundaries of the Tampa Palms Community Development District (the "District").

PRELIMINARY STATEMENT

On June 30, 2000, the District and New Tampa, Inc. ("New Tampa") jointly filed a Petition to Contract Tampa Palms Community Development District with the Florida Land and Water Adjudicatory Commission ("FLWAC"). Prior to filing, Petitioners provided for delivery of a copy of the Petition and its accompanying exhibits to Hillsborough County and the City of Tampa.

On July 10, 2000, FLWAC certified that the Petition contained all required elements and forwarded it to the Division of Administrative Hearings for conduct of the public hearing required by law. FLWAC published a Notice of Receipt of Petition in the Florida Administrative Weekly on August 18, 2000 (v. 26, no. 33, p. 3835-36).

The local public hearing was scheduled in Tampa for Friday, September 22, 2000, at 9:00 a.m. Petitioners published notice of the hearing once a week for four weeks in the Tampa Tribune, in accordance with state law.

Neither Hillsborough County nor the City of Tampa took any action in response to the Petition.

At the local public hearing on September 22, 2000, Petitioners presented the testimony of Warren Kinsler, president of New Tampa; Gary L. Moyer, vice-president of Severn Trent Services and an expert in governmental operations and management; Bonnie Rubesha, director of planning for Burcaw & Associates, Inc., and an expert in comprehensive and land use planning; and William J. Rizzetta, president of Rizzetta & Co. and an expert in economic analysis for community development districts.

Petitioners' Exhibits A through H were admitted without objection. The names and addresses of the witnesses are listed in Appendix 1, and the exhibits are listed in Appendix 2.

No other persons or entities presented any witnesses or exhibits at the public hearing, nor did any members of the public in attendance provide comment. No other persons or entities sought party status. The record of the public hearing was held open until October 2, 2000, but no further written comment or evidence was submitted during this period, aside from Petitioners' late-filed Exhibit 1.

The Transcript of the local public hearing was filed on October 10, 2000.

Also on October 10, 2000, Petitioners filed a proposed report, which the Administrative Law Judge has largely adopted as the report.

Overview

1. Petitioners are seeking the adoption of a rule by FLWAC to contract certain lands from the boundaries of the District. After such contraction, the amended District will consist of approximately 3,325 acres located within Hillsborough County.

2. The sole purpose of this hearing was to consider the amendment of the District's boundaries as proposed by Petitioners.

   Summary of Evidence and Testimony

   
   

   1. Whether All Statements Contained in the Petition Have Been Found to be True and Correct.

      
      

3. Petitioners' Composite Exhibit A was identified for the record as a copy of the Petition and its exhibits as filed with FLWAC. Witnesses Kinsler, Moyer, Rubesha, and Rizzetta each stated that he or she had reviewed portions of the contents of the Petition and approved its findings, then generally described certain of the attachments.

4. Mr. Kinsler testified that Petitioners have obtained written consent to contract the boundaries of the District from the owners of 100 percent of the real property located within the lands to be removed from the District ("Contraction Area"). In Petitioners' late-filed Exhibit 1, Mr. Kinsler swore and affirmed via affidavit that after the September 22, 2000, public hearing, it came to his attention that three wetland parcels included in the Contraction Area had been conveyed to the Tampa Palms Area 3 Owners Association, a Florida not-for-profit corporation.

   Petitioners' late-filed Exhibit 1 also includes written consent from the Tampa Palms Area 3 Owners Association to contract the boundaries of the District to include the three wetland parcels.

5. At the hearing, Petitioners entered Exhibits B and C, which replaced Petition Exhibits A and B, respectively. As filed, the Petition showed the Contraction Area as 1,007 acres and the proposed amended District as 3,103 acres after contraction. As corrected at hearing by Petitioners' Exhibits B and C, the Contraction Area is 785 acres and the proposed amended District is 3,325 acres after contraction. This change at hearing did not negatively impact the conclusions of Petitioners' expert witnesses, Mr. Moyer, Ms. Rubesha, and Mr. Rizzetta.

6. Therefore, the Petition and its attached exhibits, as amended at hearing and by Petitioners' late-filed Exhibit 1, are true and correct.

   1. Whether the Contraction of the District is Inconsistent with Any Applicable Element or Portion of the State Comprehensive Plan or of the Effective Local Government Comprehensive Plan.

      
      

7. Ms. Rubesha reviewed the proposed District in light of the requirements of the State Comprehensive Plan as found in Chapter 187, Florida Statutes (1999). Ms. Rubesha also reviewed the proposed District in light of the requirements of the City of Tampa Comprehensive Plan.

8. From a planning and economic perspective, three subjects of the State Comprehensive Plan apply directly to the proposed

   amendment of the District as do the policies supporting those subjects.

9. Subject 16, Land Use, recognizes the importance of locating development in areas with the fiscal ability and service capacity to accommodate growth. The proposed amended District will: a) have the fiscal capability to provide a wide range of services and facilities to the population in the designated growth area; b) help provide infrastructure to development within the county, thereby helping limit unintended, unplanned sprawl; and c) facilitate the delivery of infrastructure and services to assist in fulfilling the community plan.

10. Subject 18, Public Facilities, provides that the state shall protect substantial investments in public facilities and plan for and finance new facilities to serve residents in a timely, orderly, and efficient manner. The proposed amended District will be consistent with this element because the District will continue to: a) plan and finance the infrastructure systems and facilities needed for the development of lands within the District in a timely, orderly, and efficient manner;

    1. provide the infrastructure systems and facilities within the District with the landowners and residents benefiting from the new public facilities bearing the costs associated with construction, operation, and maintenance of the facilities;

    2. have financial self-sufficiency through the use of special assessments, as well as user charges or fees, to provide public

    facilities; d) provide a consistent, innovative, and fiscally sound alternative for financing public facilities by bringing the cost of managing and financing public facilities down to a level of government closest to its beneficiaries and connecting those who pay for facilities with those who directly benefit from those facilities and services; and e) be structured to assure revenue sources capable of meeting District responsibilities.

11. Subject 26, Plan Implementation, provides that systematic planning shall be integrated into all levels of government, with emphasis on intergovernmental coordination and citizen involvement. The proposed amended District is consistent with this element of the State Comprehensive Plan because: a) the proposed amended 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; b) 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; and

    c) Section 189.415, Florida Statutes, requires the District to file and update public facilities reports with the county, which it may rely upon in any revisions to the local comprehensive plan.

12. Based on the testimony and exhibits in the record, the proposed amended District will not be inconsistent with any applicable element or portion of the State Comprehensive Plan.

13. Based on the evidence in the record, the proposed amended District will not be inconsistent with any applicable element or portion of the Local Comprehensive Plan.

14. The size of the proposed amended District is approximately 3,325 acres. From a planning perspective, this is a sufficient size to accommodate the basic infrastructure facilities and services typical of a functionally interrelated community.

15. Compactness relates to the location in distance between the lands and land uses within a community. The community is sufficiently compact to be developed as a functionally interrelated community. The compact configuration of the lands will allow the proposed amended District to provide for the installation and maintenance of its infrastructure facilities in a long-term cost efficient manner.

16. The property is sufficiently contiguous; all parts of a project are either in actual contact or are close enough to allow the efficient design and use of infrastructure. The proposed amended District is sufficiently contiguous for planning purposes and for the purpose of district governance.

17. The size of the proposed amended District provides a sufficient economic base to absorb the debt costs and annual

    operating costs for the proposed amended District. There will be no economic disincentives to the provision of the infrastructure facilities contemplated.

18. From planning, economics, and management perspectives, the area of land to be included in the proposed amended District is of sufficient size, is sufficiently compact, and is sufficiently contiguous to continue to be developed as a single functionally interrelated community.

    1. Whether the Proposed Amended District is the Best Alternative Available for Delivering Community Development Services and Facilities to the Area That Will Be Served by the Proposed Amended District.

       
       

19. Only a community development district allows for the independent financing, administration, operations and maintenance of the land within such a district. Only a community development district allows district residents to completely control the district. None of the other alternatives have all of these characteristics.

20. From planning, economic, and special district management perspectives, the proposed amended District is the best alternative available for delivering community development services and facilities to the area that will be served by the District.

21. The District is not the best alternative to provide such services within the lands within the Contraction Area. The Contraction Area is already provided for by the Tampa Palms Open

    Space and Transportation Community Development District ("TPOST CDD"), which has facilitated the construction of infrastructure and other facilities needed for the planned community within the Contraction Area, and which continues to provide maintenance services for those facilities. The District has not planned to provide community development services, infrastructure, or other facilities to the area, nor are such needed from the District.

    1. Whether the Community Development Services and Facilities of the Proposed Amended District Will Be Incompatible with the Capacity and Uses of Existing Local and Regional Community Development Services and Facilities.

       
       

22. The services and facilities proposed to be provided by the amended District are not incompatible with uses and existing local and regional facilities and services. The District's facilities and services within the proposed amended boundaries will not duplicate any existing regional services or facilities which are provided to the lands within the amended 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 amended District.

23. Therefore, the community development services and facilities of the proposed amended District will not be incompatible with the capacity and uses of existing local and regional community development services and facilities.

    1. Whether the Area That Will Be Served by the Proposed Amended District is Amenable to Separate Special District Governance.

24. As cited previously, from planning, economic, and special district management perspectives, the area of land to be included in the proposed amended District is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developed and become a functionally interrelated community.

25. From planning, economic, and management perspectives, the area that will be served by the proposed amended District is amenable to separate special district governance.

    1. Other Matters or Requirements Imposed by Statute or Rule.

    
    

26. Florida law imposed specific requirements regarding the petition and other information to be submitted to FLWAC.

    Elements of the Petition

    
    

27. The Petition must contain a description of the external boundaries of the District. Petitioners' Composite Exhibit A, as corrected by Petitioners' Exhibit B, contains such a description.

28. Florida law also requires a description of any real property within the external boundaries which is to be excluded from the District and the last known address of the owners of such properties to be listed. Petitioners' Composite Exhibit A, as corrected by Petitioners' Exhibit C, contains the required information.

29. Florida law also requires the Petition to contain written consent by the owners of 100 percent of the real property to be contracted from the District. Petitioners have obtained written consent to the contraction of the District of 100 percent

    of the landowners who own lands within the Contraction Panel, as evidenced by Petitioners' Composite Exhibit A and Late Filed Exhibit 1.

30. Florida law also requires the Petition to contain a map of the proposed amended district showing the major trunk water mains and sewer interceptors and outfalls in existence. Petitioners' Composite Exhibit A contains this information.

31. The Petition contains a statement of estimated regulatory costs ("SERC"), in Petitioners' Composite Exhibit A, Attachment H.

    Statement of Estimated Regulatory Costs

    
    

32. The SERC, in Petitioners' Composite Exhibit A, Attachment H, contains an estimate of the costs and benefits to all persons directly affected by the proposed rule to contract the District: the State of Florida and its citizens; the City of Tampa and its citizens; the Petitioners; and consumers.

33. Beyond administrative costs related to rule adoption, the State and its citizens will incur no costs from the proposed contraction of the boundaries of the District. The proposed amended District will require no subsidies from the State. Benefits will include improved planning and coordination of development, which is difficult to quantify but nonetheless substantial.

34. The City of Tampa will incur no administrative costs as a result of the rule adoption. Benefits to the City of Tampa

    will include improved planning and coordination of development, without incurring any administrative or maintenance burden for facilities and services within the proposed amended District except for those it chooses to accept.

35. Current property owners and residents within the District and not within the Contraction Area will be assessed equitably for the services provided by the District. The current property owners of lands within the Contraction Area are subject to "double taxation" because the Contraction Area is currently included within both the District and the TPOST CDD. The proposed rule amendment will eliminate that "double taxation."

    Other Requirements

    
    

36. Florida law requires Petitioners to publish notice of the local public hearing in a newspaper of general circulation in Hillsborough County for four consecutive weeks prior to the hearing. The notice was published in the Tampa Tribune, a newspaper of general paid circulation in Hillsborough County, for four consecutive weeks on August 25, 2000, August 31, 2000, September 7, 2000, and September 14, 2000. Petitioners' Exhibit D contains a copy of the advertisement and the affidavit of J. Rosenthal, classified billing manager of the Tampa Tribune, verifying the above-cited publication dates.

    CONCLUSIONS OF LAW

    
    

    Based upon the record of this proceeding, it is concluded that:

37. This proceeding is governed by Chapter 80-407, Laws of Florida, Chapters 120 and 190, Florida Statutes, and Chapter 42- 1, Florida Administrative Code.

38. The proceeding was properly noticed by publication of an advertisement in a newspaper of general paid circulation in Hillsborough County and of general interest and readership once each week for the four consecutive weeks immediately prior to the hearing.

39. Petitioners have met the requirements of law regarding the submission of the Petition.

40. Petitioners bear the burden of establishing that the Petition meets the relevant statutory criteria set forth in Chapter 80-407, Laws of Florida.

41. All portions of the Petition and other submittals have been completed and filed as required by law.

42. All statements contained within the Petition as corrected and supplemented at the hearing or within 10 days thereof are true and correct.

43. The proposed contraction of the boundaries of the District is not inconsistent with any applicable element or portion of the State Comprehensive Plan or the effective local comprehensive plan.

44. The area of land within the proposed amended District is of sufficient size, is sufficiently compact, and is sufficiently contiguous to continue to be developable as one functional interrelated community.

45. The proposed amended District is the best alternative available for delivering community development services and facilities to the area that will continue to be served by the District.

46. The District is not the best alternative for delivering services and facilities to the Contraction Area.

47. The community development services and facilities of the proposed amended District will not be incompatible with the capacity and uses of existing local and regional community development services and facilities.

48. The area to be served by the proposed amended District is amenable to separate special district government.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is recommended that the Governor and Cabinet, sitting as the Florida Land and Water Adjudicatory Commission, contract certain lands herein specified from the boundaries of the Tampa Palms Community Development District as requested by Petitioners through formal adoption of the proposed rule, after inclusion of the legal description.

DONE AND ENTERED this 3rd day of November, 2000, in Tallahassee, Leon County, Florida.

LAWRENCE P. STEVENSON

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(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 3rd day of November, 2000.

APPENDIX 1

Petitioners' Witnesses:

Warren Kinsler President

New Tampa, Inc.

6000 Compton Estate Way Tampa, Florida 33647

Gary L. Moyer

Severn Trent Services, Inc. 10300 Northwest 11th Manor Coral Springs, Florida 33071

Bonnie Rubesha Burcaw & Associates

6015 Benjamin Road, Suite 320

Tampa, Florida 33634

William J. Rizzetta Rizzetta & Company, Inc.

3550 Buschwood Park Drive, Suite 135

Tampa, Florida 33618

APPENDIX 2

Petitioners' Exhibits: Composite Exhibit A.

Petition and attached exhibits A through K. Exhibit B.

"Tampa Palms Community Development District After Area 4 and Area 3 Contraction Parcel," amending exhibit A to the petition and showing the proposed amended District as the cross-hatched area on the drawing.

Exhibit C.

"Tampa Palms Community Development District Area 3 Contraction Parcel (Proposed Removal)," amending exhibit B to the petition and showing the Contraction Area as the cross-hatched area on the drawing.

Exhibit D.

Proof of publication notice from the Tampa Tribune.

Exhibit E.

FLWAC Notice of Receipt of Petition, published in the Florida Administrative Weekly, August 18, 2000.

Exhibit F.

Letter from FLWAC to Division of Administrative Hearings ("DOAH"), stating the petition was complete and authorizing DOAH to hold local hearing.

Exhibit G.

Letters from FLWAC to the Tampa Bay Regional Planning Council and the Department of Community Affairs requesting comments.

Exhibit H.

Rizzetta & Company, Inc. company profile.

Late-Filed Exhibit 1.

Affidavit of Warren S. Kinsler and owner's consent to the petition to contract the Tampa Palms Community Development District.

COPIES FURNISHED:

Michael G. Cooke, Esquire Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A.

One Harbour Place Post Office Box 3239

Tampa, Florida 33601-3239

Jonathan T. Johnson, Esquire Jody Lamar Finklea, Esquire

Hopping, Green, Sams & Smith, P.A.

123 South Calhoun Street Post Office Box 6526 Tallahassee, Florida 32314

Donna J. Feldman, Esquire Zimmet, Unice, Salzman & Feldman, P.A.

2650 McCormick Drive

Suite 100

Clearwater, Florida 33759

Jose Luis Rodriguez, Esquire Governor's Legal Office

Room 209, The Capitol Tallahassee, Florida 32399-0001

Barbara Leighty, Clerk

Growth Management and Strategic Planning The Capitol, Suite 2105

Tallahassee, Florida 32399

Frank Jimenez, Acting General Counsel Department of Legal Affairs

Office of the Governor The Capitol, Suite 209

Tallahassee, Florida 32399-0001

Donna Arduin, Secretary

Florida Land and Water Adjudicatory Commission

Office of the Governor 2105 The Capitol

Tallahassee, Florida 32399

Docket for Case No: 00-002866

Orders for Case No: 00-002866