STATE OF FLORDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: PETITION FOR RULE )

CREATION – ARBORWOOD ) Case No. 03-4609 COMMUNITY DEVELOPMENT )

DISTRICT )

ADMINISTRATIVE LAW JUDGE’S REPORT TO

THE FLORIDA LAND AND WATER ADJUDICATORY COMMISSION

On January 28, 2004, a local public hearing under Section 190.005(1)(d), Florida Statutes (2003), was conducted in Fort Myers, Florida, by Charles A. Stampelos, Administrative Law Judge (ALJ) of the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Jonathan T. Johnson, Esquire

Chasity H. O’Steen, Esquire Hopping Green & Sams, P.A.

123 South Calhoun Street Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

The issue before the Florida Land and Water Adjudicatory Commission (FLWAC) in this proceeding is whether to grant the Petition to Establish the Arborwood Community Development District (Petition), dated November 17, 2003. The local public hearing was conducted for the purpose of gathering information in anticipation of rulemaking by FLWAC.

PRELIMINARY STATEMENT

On November 17, 2003, the Petition was filed by Worthington Holdings Southwest, L.L.C. (Petitioner). It requested that FLWAC adopt a rule to establish a uniform community development district, to be called the Arborwood Community Development District (District), on certain property in the City of Fort Myers (City), Lee County, Florida. The Petition includes nine exhibits.

On December 9, 2003, FLWAC referred the Petition to DOAH for the assignment of an ALJ to conduct a local public hearing under Section 190.005(1)(d), Florida Statutes (2003). The local public hearing before the ALJ was scheduled and was held at

1:00 p.m., on January 28, 2004, in the East Room of the Lee County Old Courthouse, located at 2120 Main Street, in Fort Myers, Lee County, Florida. At the local public hearing, Petitioner presented the testimony of John Asher, employed by Worthington Holdings Southwest, L.L.C., of Fort Myers, Florida; Rhonda Archer Mossing, employed by Severn Trent Services, Inc., of Kingston, Tennessee; Carron Day, employed by WilsonMiller, Inc., in Fort Myers, Florida; and Joshua Reese Evans, employed by WilsonMiller, Inc., in Fort Myers, Florida. Petitioner also introduced eleven exhibits, designated Composite Exhibit A through Exhibit K, which are described in page 2 of the Transcript of the Record. On February 6, 2004, Petitioner filed

two late-filed exhibits, Revised Exhibit 1, the Statement of Estimated Regulatory Costs, and Revised Exhibit 2, Resolution No. 04-0135 adopted by the Board of County Commissioners of Lee County, Florida. No one from the public appeared at the hearing.

The Transcript of the local public hearing was filed on February 12, 2004. Petitioner filed a Proposed ALJ’s Report to FLWAC, which has been considered in the preparation of this Report.

SUMMARY OF RECORD

A. Petition and Related Matters

1. The Petition was submitted to FLWAC, Lee County and the City of Fort Myers, Florida.

2. The Petition alleges that the land proposed to be included within the District is located in the City of Fort Myers, Lee County, Florida. Petition Exhibit 1 depicts the general location of the District. The proposed District covers approximately 2,479.13 acres of land. See paragraphs 21-23, 29, and 47. The metes and bounds description of the external boundaries of the District is set forth in Petition Composite Exhibit 2.

3. Petition Exhibit 3 incorporates the written consents to the establishment of the District by the owners of 100 percent of the real property to be included within the District. Lands

   to be included within the District are owned by Worthington Holdings Southwest, L.L.C., and the Gould Estate.

4. The Petition states that the name of the proposed District will be the Arborwood Community Development District.

5. The Petition identifies the following names and addresses as those individuals designated as the five initial members of the Board of Supervisors of the District:

   Name Address

   
   

   John Gnagey 9240 Marketplace Road, Suite 2

   Fort Myers, Florida 33912

   
   

   Jeff Darragh 9240 Marketplace Road, Suite 2

   Fort Myers, Florida 33912

   
   

   Glenn Cribbett 9240 Marketplace Road, Suite 2

   Fort Myers, Florida 33912

   
   

   John Asher 9240 Marketplace Road, Suite 2

   Fort Myers, Florida 33912

   
   

   Ron Zul 9240 Marketplace Road, Suite 2 Fort Myers, Florida 33912

   
   

6. Petition Exhibit 4 depicts the existing land uses within and abutting the District. The Petition alleges that the lands within the District are undeveloped, and the property has been annexed into the City. The Petition alleges that lands within the District are currently zoned AG-2 and IL.

7. The future general distribution, location and extent of the public and private land uses within the District are shown in Petition Exhibit 5. Arborwood will be a mixed-use

   development, and the District proposes to construct approximately four thousand and fifty (4,050) single-family units, two thousand four hundred and fifty (2,450) multi-family units and one hundred seventy thousand (170,000) feet of retail and office uses.

8. The Petition alleges that there are currently no major trunk water mains, sewer interceptors or outfalls in the area within the District, and this is illustrated in Petition Exhibit 6.

9. The Petition alleges, based upon currently available data, the proposed timetable for the construction of District services and facilities. The types of facilities and services and the cost of constructing the proposed facilities and services, based on available data, are shown in Petition Exhibit

1. This is alleged to be a good faith estimate, but it is not binding on Petitioner or the District and is subject to change.

   1. The Petition alleges and incorporates in its Exhibit 8 a Statement of Estimated Regulatory Costs (SERC) prepared in accordance with the requirements of Section 120.541, Florida Statutes (2003).

   2. The Petition alleges that the authorized agent of Petitioner is John Asher. An executed copy of the authorization of agent is provided in Petition Exhibit 9.

   3. The Petition alleges that Petitioner submitted a copy of the Petition with Exhibits to the City and to Lee County with the required filing fee of $15,000 for each local government entity in accordance with Section 190.005(2)(b), Florida Statutes (2003).

   4. The Petition alleges that establishment of the District should be granted for the following reasons:

      1. Establishment of the proposed District and all land uses and services planned within the proposed District are not inconsistent with applicable elements and portions of the effective State Comprehensive Plan or the local Comprehensive Plan.

         
         

      2. The area of land within the proposed District is part of a planned community. It is of sufficient size, compactness and contiguity to be developed as one functional and interrelated community.

         
         

      3. Establishment of the proposed District will prevent the general body of taxpayers in the City from bearing the burden for installation of the infrastructure and the maintenance of certain facilities within the development encompassed by the proposed District. The proposed District is the best alternative for delivering community development services and facilities to the proposed community without imposing an additional burden on the general population of the local general-purpose government. Establishment of the proposed District in conjunction with a comprehensively planned community, as proposed, allows for a more efficient use of resources.

         
         

      4. The community development services and facilities of the proposed District will not be incompatible with the capacity and use of existing local and regional community development services and facilities. In addition,

         establishment of the proposed District will provide a perpetual entity capable of making reasonable provisions for the operation and maintenance of the proposed District services and facilities.

         
         

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

      
      

      A. Additional Information from Local Public Hearing

      
      

   5. The local public hearing on the Petition was noticed and held on January 28, 2004, in the East Room of the Lee County Old Courthouse, located at 2120 Main Street, in Fort Myers, Lee County, Florida, an accessible location in Fort Myers, Lee County, Florida. Pursuant to Section 190.005(1)(d), Florida Statutes (2003), notice of the public hearing was advertised on December 31, 2003, and January 7, 14 and 21, 2004, in the Fort Myers News-Press, a newspaper of general paid circulation in Lee County, and of general interest and readership in the community, not one of limited subject matter, pursuant to Chapter 50, Florida Statutes. The published notices gave the time and place for the hearing; a description of the area to be included within the District, including a map showing the land to be included within the District; and other relevant information. The advertisement was published as a display advertisement, not in the portion of the newspaper where legal notices and classified advertisements appear.

   6. The hearing commenced at 1:00 p.m., the time advertised in the published notice. Counsel for Petitioner made appearances. Only the four witnesses of Petitioner testified at the hearing. No members of the public were in attendance at any time during the hearing.

   7. The first witness for Petitioner was John Asher.

      
      

      Mr. Asher is employed by Worthington Holdings Southwest, L.L.C., as project manager. Mr. Asher is the person within Worthington Holdings Southwest, L.L.C., who is responsible for the Arborwood development.

   8. Mr. Asher testified that he had previously pre-filed ten pages of direct testimony dealing with the preparation and content Petition. Mr. Asher testified that there were no changes or corrections to his pre-filed testimony, and it was received into the record. Exhibits JPA-1 through JPA-4 were marked as Hearing Exhibits B, C, D and E, consecutively, and moved into evidence.

   9. Mr. Asher identified the affidavit of publication of the notice of the public hearing, which has been published in the Fort Myers News-Press in the manner and form prescribed by Section 190.005, Florida Statutes (2003). This affidavit was marked as Hearing Exhibit F and admitted into evidence.

   10. Mr. Asher identified the executed Annexation Agreement that had been entered into by Worthington Holdings Southwest,

       L.L.C., and the City for the Arborwood property. Section 3.01 of the Annexation Agreement evidences the City’s intent to support a community development district for the Arborwood project. The Annexation Agreement was marked as Hearing Exhibit G and admitted into evidence. Mr. Asher confirmed that the City has elected not to hold its optional public hearing to consider the Petition under Section 190.005, Florida Statutes (2003).

   11. Mr. Asher testified that the County held its optional hearing to consider the Petition, and that he was in attendance. Mr. Asher testified that the County unanimously approved a resolution in support of the Petition. See Resolution No.

       04-0135.

       
       

   12. Three of the Petition Exhibits in Composite Hearing Exhibit A had been revised subsequent to the filing with FLWAC. Mr. Asher testified that the legal description of the District has been revised because a twelve-acre overlap between the boundaries of the District and the currently existing Gateway Services Community Development District, which borders the District, was discovered. Mr. Asher testified that the legal description originally filed as Petition Exhibit 2 has been revised to except the twelve-acre parcel, which is a finger- shaped road right-of-way from Treeline Avenue that runs south from Colonial Parkway and that encroaches into the Arborwood property. Mr. Asher testified that the legal description has

       been amended after discussion with the FLWAC, which has expressed a desire to avoid an overlap in the boundaries of the District and the neighboring Gateway Services Community Development District. The revised legal description of the District was marked as Hearing Exhibit H and moved into evidence.

   13. Mr. Asher testified that Petition Exhibit 4, the existing land use map, has been revised to reflect the revised boundaries of the District. The revised existing land use map of the District was marked as Hearing Exhibit I and moved into evidence.

   14. Mr. Asher testified that Petition Exhibit 6, the existing infrastructure map, has been revised to reflect the revised boundaries of the District. The revised existing land use map of the District was marked as Hearing Exhibit J and moved into evidence.

   15. The next witness for Petitioner was Rhonda Archer Mossing. Ms. Archer is employed by Severn Trent Services, Inc., where she serves as vice president of operations. Her responsibilities include the administration, accounting, budgeting, assessing and collecting and bond financing relating to special districts. Based upon her credentials, education and experience with special district matters, Ms. Archer was

       designated and accepted as an expert witness in the field of special district management and economic analysis.

   16. Ms. Archer testified that she had previously pre-filed eleven pages of direct testimony relating to the preparation of the SERC, the management of the District and whether the District is of sufficient size to be efficiently and economically managed as a community development district.

       Ms. Archer testified that there were no changes or corrections to her pre-filed testimony, and it was received into the record.

   17. Ms. Archer testified that she reviewed the change in the boundaries of the District and Hearing Exhibits H, I, and J, and that the change to the boundary of the District did not change her expert opinion in any way. Ms. Archer testified that it is her expert opinion that the District is of sufficient size, compactness and contiguity to be developed as a functionally interrelated community.

   18. Ms. Archer testified that it is her expert opinion that the District is the best alternative available to provide the community development services and facilities to the Arborwood project. Ms. Archer testified that it is her expert opinion that from a management perspective the services and facilities to be provided by the District would not be incompatible with any existing local or regional uses.

       Ms. Archer testified that it is her expert opinion that from a

       management perspective the lands to be included within the District are amenable to being served by a separate special district government.

   19. Ms. Archer testified that from an economic perspective the District is the best alternative available for delivering the proposed facilities and services. Ms. Archer testified that from an economic analysis perspective the land to be included within the District is of sufficient size, compactness and contiguity to be developed as a functional, interrelated community. Ms. Archer testified that from an economic analysis perspective the lands to be included within the District are amenable to being served by a separate special district government.

   20. Ms. Archer identified Petition Exhibit 8, the SERC. Ms. Archer testified that she had prepared the SERC and the only change to the SERC was the reduction in the acreage of the District from 2,479.13 acres to 2,466.85.

   21. The next witness for Petitioner was Carron Day.

       
       

       Ms. Day is employed by WilsonMiller, Inc., as the regional planning manager for southwest Florida. Based upon her qualifications and credentials, Ms. Day was designated and accepted as an expert witness in the field of land planning and comprehensive plan analysis.

   22. Ms. Day testified that she had previously pre-filed nine pages of direct testimony evaluating the consistency of the District with the State of Florida Comprehensive Plan and also with the growth management plan of the City. Ms. Day testified that her pre-filed testimony also analyzed whether the District is of sufficient size, compactness and contiguity to be developed as a single community. Ms. Day testified that there were no changes or corrections to her pre-filed testimony, and it was received into the record.

   23. Ms. Day identified Chapter 187 of the Florida Statutes, the State Comprehensive Plan, which was marked as Exhibit K and moved into evidence. Ms. Day testified that in her expert opinion the establishment of the District is not inconsistent with any element or portion of the effective State or City Comprehensive Plans.

   24. Ms. Day testified that she reviewed the change in the boundaries of the District and Hearing Exhibits H, I and J. Ms. Day testified that in her expert opinion the establishment of the District would not be incompatible with the capacity and usage of existing local and regional facilities and services. Ms. Day testified that in her expert opinion the land to be included within the District is amenable to separate special district government. Ms. Day testified that in her expert opinion the District is the best alternative for providing

       community development services and facilities to the area within the District. Ms. Day testified that with the slight change in the District’s boundaries her expert opinions remained the same.

   25. Ms. Day testified that the City had recently adopted necessary comprehensive plan and future land use amendments to allow for the development of the lands within the District to proceed in accordance with the development plan. Ms. Day testified that the amendment to the City’s comprehensive plan has been adopted by the City and transmitted to the DCA for review. Ms. Day testified that the amendments address the development of the land, not the establishment of the District.

   26. The next witness for Petitioner was Joshua Reese Evans. Mr. Evans is employed by WilsonMiller, Inc., and is a registered professional engineer. Based upon his qualifications and experience with community development districts, Mr. Evans was designated and accepted as an expert witness in the field of civil engineering.

   27. Mr. Evans testified that he had previously pre-filed four pages of direct testimony that analyzed, from an engineering perspective, the accuracy and consistency of the Petition exhibits and cost estimates with applicable statutes. Mr. Evans testified that there were no changes or corrections to his pre-filed testimony, and it was received into the record.

   28. Mr. Evans testified that he had reviewed the slight change in the District’s boundaries, and his expert opinions remained the same. Mr. Evans testified that in his expert opinion the District is the best alternative to provide services and facilities to the area within the District. Mr. Evans testified that in his expert opinion the services and facilities to be provided by the District would be compatible with the capacities and uses of existing local and regional community development services and facilities. Mr. Evans testified that in his expert opinion the lands to be included within the District are amenable to being served as a separate special district local government.

   29. Petitioner introduced several documents that were accepted into evidence:

       Composite Exhibit A

       
       

       Petition and exhibits that were filed with the FLWAC on November 17, 2003.

       
       

       Exhibit B

       
       

       Exhibit JPA-1 to Written Testimony of Mr. Asher consisting of a letter from the FLWAC certifying that all required elements of Section 190.005(1)(a), Florida Statutes (2003), are contained in the Petition. The letter also requests assignment of an ALJ as provided by Florida Administrative Code Rule 42-1.009(1)(b), and that DOAH conduct a local public hearing pursuant to Section 190.005(1)(d), Florida Statutes (2003).

       Exhibit C

       
       

       Exhibit JPA-2 to Written Testimony of Mr. Asher consisting of the Notice of Receipt of Petition to establish the Arborwood Community Development District, which was published in the Florida Administrative Weekly in Volume 30, Number 2, on January 9, 2004, pages 204-05. The Notice also provided information regarding the local public hearing to establish the District.

       
       

       Exhibit D

       
       

       Exhibit JPA-3 to Written Testimony of Mr. Asher consisting of a letter from the Office of the FLWAC, dated December 8, 2003, to the Department of Community Affairs (DCA) requesting a review of the enclosed Petition to establish the District from the standpoint of the DCA and the requirements of Chapter 190, Florida Statutes.

       
       

       Exhibit E

       
       

       Exhibit JPA-4 to Written Testimony of Mr. Asher consisting of a letter from the DCA stating that Arborwood is a proposed development that is currently undergoing development of regional impact review. The letter also states that the DCA reviewed the Petition to establish the District and found no potential inconsistency with Chapter 163, Florida Statutes.

       
       

       Exhibit F

       
       

       Affidavit of Publication from the Fort Myers News- Press newspaper, providing evidence that the public hearing notice for this hearing was published on December 31, 2003, and January 7, 14 and 21, 2004, in accordance with the requirements of Section 190.005(1)(d), Florida Statutes (2003).

       
       

       Exhibit G

       
       

       Annexation agreement between Worthington Holdings Southwest, L.L.C., and the City of Fort Myers, Lee County, Florida, executed September 3, 2003.

       Exhibit H

       
       

       Revised Petition Exhibit 2 showing the metes and bounds legal description of the external boundary of the District.

       
       

       Exhibit I

       
       

       Revised Petition Exhibit 4 depicting the existing land uses within and abutting the District.

       
       

       Exhibit J

       
       

       Revised Petition Exhibit 6 showing that no current major trunk water mains, sewer interceptors or outfalls exist within the boundary of the District.

       
       

       Exhibit K

       
       

       State Comprehensive Plan, Chapter 187, Florida Statutes.

       
       

       APPLICABLE LAW

       
       

       1. General

          
          

   30. Section 190.005(1), Florida Statutes (2003), provides that the sole means of establishing a community development district (CDD) of 1,000 acres or more shall be by rule adopted by the FLWAC in granting a petition for the establishment of a CDD.

   31. Section 190.005(1)(a), Florida Statutes (2003), requires that an establishment petition be filed with the FLWAC and submitted to the applicable local government entity. The petition must provide a metes and bounds legal description of the area to be serviced by the CDD with a specific description

       of real property to be excluded from the district, if any. The petition must establish that petitioner has received the written consent of the landowners of 100 percent of the real property proposed to be included within the CDD or documentation “demonstrating that the petition has control by deed, trust agreement, contract, or option . . . .” The petition must designate the name of the CDD and the five initial members of the board of supervisors. The petition also must contain a map showing current major trunk water mains and sewer interceptors and outfalls, if any.

   32. Section 190.005(1)(a), Florida Statutes (2003), also requires that the petition propose a timetable for construction of CDD services and facilities and an estimate of construction costs. The petition must designate future general distribution, location and extent of public and private uses of lad in the future land use element of the applicable general-purpose local government. The petition must contain a Statement of Estimated Regulatory Costs.

   33. Section 190.005(1)(b), Florida Statutes (2003), requires that petitioner serve a copy of the establishment petition and pay a filing fee of $15,000 to the county and to each municipality whose proposed boundary is within or contiguous to the CDD.

   34. Section 190.005(1)(c), Florida Statutes (2003), permits the general purpose local governments described in the preceding paragraph to conduct a public hearing on the petition. These local government entities may then present resolutions to the FLWAC as to the establishment of a CDD on the property identified in the petition. In this case, the Board of County Commissioners of Lee County, Florida, adopted a resolution supporting the establishment of the District on January 27, 2004. The Board of City Commissioners of Fort Myers, Florida, opted not to hold a public hearing or adopt a resolution regarding the establishment of the District.

   35. Section 190.005(1)(d), Florida Statutes (2003), requires an ALJ to conduct a local public hearing pursuant to Chapter 120, Florida Statutes. See In Re: Petition for Rule

       Creation – Pine Island Community Development District, Case No. 03-3892, 2004 WL 112814, at *8 n.1 (DOAH Jan. 22, 2004). “The

       hearing shall include oral and written comments on the petition pertinent to the factors specified in paragraph (e).” Section 190.005(1)(d), Florida Statutes (2003), requires the petitioner to publish notice of the local public hearing in a newspaper at least once a week for the four successive weeks immediately prior to the hearing.

       
       

       
       

       1. Factors by Law to be Considered for Granting or Denying Petition

       
       

   36. Pursuant to Section 190.005(1)(e), Florida Statutes (2003), the FLWAC shall consider the entire record of the local hearing, the transcript of the hearing, any resolutions adopted by local general-purpose governments as provided in paragraph

1. and the following factors to make a determination to grant or deny a petition for establishment of a CDD:

   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 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 to be provided by 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.

COMPARISON OF INFORMATION IN RECORD TO APPLICABLE LAW

1. Procedural Requirements

   
   

   1. The evidence was that Petitioner satisfied the procedural requirements for the establishment of the District on the proposed property by filing the Petition in the proper form and with the required attachments, paying the $15,000 filing fee to each local government, and publishing statutory notice of the local public hearing.

2. Six Factors of Section 190.005(1)(e)1-6, Florida Statutes (2003)

1. The evidence was that the statements in the Petition and its attachments, as amended, are true and correct.

2. The evidence was that establishment of the District is not inconsistent with the State and City of Fort Myers Comprehensive Plans.

3. The evidence was that the size, compactness and contiguity of the land proposed to be included within the District are sufficient for it to be developed as “one functional interrelated community.”

4. The evidence was that the District is the best available alternative available for delivering community development services and facilities to the area that will be served by the District.

5. The evidence was that the services and facilities to be provided by the District will be compatible with the capacity and uses of existing local and regional community development services and facilities.

6. The evidence was that the area proposed to be served by the District is amenable to separate special-district

government.

CONCLUSION

Section 190.005(1)(e), Florida Statutes (2003), states that the FLWAC “shall consider the entire record of the local hearing, the transcript of the hearing, resolutions adopted by local general-purpose governments,” and the factors listed in that subparagraph. Based on the record evidence, the Petition, as amended, appears to meet all statutory requirements, and there appears to be no reason not to grant the Petition, as amended, and establish the proposed Arborwood Community Development District by rule. For purposes of drafting such a rule, a metes and bounds description of the proposed Arborwood Community Development District may be found as Hearing Exhibit H, which revises Petition Exhibit 2. Also, the five persons

designated to serve as the initial members of the Board of Supervisors of the Arborwood Community Development District are identified in paragraph 5 of the Petition.

DONE AND ENTERED this 24th day of February, 2004, in Tallahassee, Leon County, Florida.

S

Charles A. Stampelos Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 2004.

COPIES FURNISHED:

Michael P. Hansen, Secretary

Florida Land and Water Adjudicatory Commission The Capitol, Room 2105

Tallahassee, Florida 32399-0001

Barbara Leighty, Clerk

Growth Management and Strategic Planning The Capitol, Room 2105

Tallahassee, Florida 32399-0001

Raquel A. Rodriguez, General Counsel Office of the Governor

The Capitol, Room 209 Tallahassee, Florida 32399-0001

Jonathan T. Johnson, Esquire Hopping Green & Sams, P.A.

123 South Calhoun Street Tallahassee, Florida 32301

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

Docket for Case No: 03-004166

Orders for Case No: 03-004166