STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
IN RE: PETITION FOR RULE CREATION - PIONEER COMMUNITY DEVELOPMENT DISTRICT.
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) Case No. 05-1852
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)
ADMINISTRATIVE LAW JUDGE'S REPORT TO
THE FLORIDA LAND AND WATER ADJUDICATORY COMMISSION
On August 2, 2005, a local public hearing under
Section 190.005(1)(d), Florida Statutes (2004),1 was conducted in Port Orange, Florida, by J. Lawrence Johnston, Administrative Law Judge (ALJ) of the Division of Administrative Hearings
(DOAH).
APPEARANCES
For Petitioner: Jonathan T. Johnson, Esquire
Paula M. Sparkman, Esquire Hopping, Green, & Sams, P.A.
123 South Calhoun Street Post Office Box 6526
Tallahassee, Florida 32314-6526
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 Pioneer Community Development District (Petition). The local public hearing was for purposes of gathering information in anticipation of quasi-legislative rulemaking by FLWAC.2
PRELIMINARY STATEMENT
The Petition was filed by MHK of Volusia County, Inc. (Petitioner), on May 2, 2005. It requested that FLWAC adopt a rule to establish a state-chartered uniform community development district, to be called the Pioneer Community Development District (District or CDD), on certain property in the City of Port Orange, which is located in Volusia County, Florida.
On May 18, 2005, the Secretary of FLWAC certified that the Petition contained all required elements and forwarded the Petition to DOAH for assignment of an ALJ to conduct a local public hearing under Section 190.005(1)(d), Florida Statutes.
The local public hearing before the ALJ was scheduled to begin at 8:30 a.m. on August 2, 2005, in the City Commission Chambers, City Hall, Port Orange, Volusia County, Florida. On July 28, 2005, Petitioner pre-filed the testimony of five of its witnesses: Cynthia C. Jones, President of MHK of Volusia County, Inc.; Dwight DuRant, an expert in design and planning of infrastructure; Alan Watts, with the law firm of Cobb and Cole, an expert in financing and planning for infrastructure; James A. Perry, with the firm of Governmental Management Services, LLC, an expert in the field of economics and financial analysis; and Darrin Mossing, President of Governmental Managemental Services, LLC, an expert in special district government operation and
establishment. Copies of the pre-filed testimony also were made available for public inspection at the office of the City Manager, City of Port Orange.
The start of the hearing was delayed 50 minutes because the court reporter hired by Petitioner did not attend the hearing.
Some members of the public wishing to speak were unable to wait for the substitute court reporter to arrive to record Petitioner's presentation and were given the opportunity to speak on an audiotape record later transcribed by the substitute court reporter. Others member of the public were able to wait and speak after the Petitioner's delayed presentation. All members of the public also were given the opportunity to submit written comments within ten days. Many members of the public took advantage of one or more of the available means of commenting for the record. All but one public participant spoke in opposition to the Petition. Public Comment Exhibits 1 through 8 also were admitted into the record.
During the Petitioner's presentation, the Petitioner's witnesses listed above adopted or corrected their pre-filed testimony. In addition, the Petitioner had Petitioner's Exhibits 1 through 11 admitted in evidence.
After Petitioner's initial presentation, public comment was completed (including receipt of Public Comment Exhibits 3 through 8), and Petitioner presented rebuttal, which included
the testimony of William Michael Dennis, President and Owner of Breedlove, Dennis & Associates, as an expert in the environmental analysis of property and permitting.
After the close of the presentation and comments on the day of the hearing, the record was left open for ten days for submission of additional written public comment (labeled Post- Hearing Public Comment Exhibits.) The Transcript of the local public hearing was filed on August 16, 2005. Petitioner's responses to the additional written public comment were filed on August 22, 2005 (labeled Petitioner's Responses to Post-Hearing Public Comment.) Petitioner's Proposed Report of Findings and Conclusions was filed on August 26, 2005.
On September 16, 2005, additional public comment was filed but was not added to the Post-Hearing Public Comment Exhibits or considered to be part of the record of the local public hearing because it was untimely. (In any event, the matters raised in the late attempted additional public comment already had been considered.)
As used in this Report, Hearing Exhibit means an exhibit introduced by Petitioner and admitted in evidence during the local public hearing, and Petition Exhibit means an exhibit attached to the Petition, a copy of which was admitted as Petitioner's Hearing Exhibit 2.
SUMMARY OF RECORD
Petition and Related Matters
The Petition (a copy of which was introduced and accepted in evidence at the local public hearing as Petitioner's Hearing Exhibit 2) alleges that the land for the District (approximately 1,238.2 acres) is located entirely within the City of Port Orange in Volusia County, Florida. Petition Exhibit 1 depicts the location, and Petition Exhibit 2 describes the metes and bounds of the external boundaries of the District.
The Petition states: "There are no parcels located within the external boundaries of the proposed District which are to be excluded from the District." However, Petition Exhibits 1 and 2 show that Interstate 95 (I-95), which is specifically excluded from the land to be included in the District, actually bisects the land to be included in the District. As described in Petition Exhibits 1 and 2, I-95 is not included within the external boundaries of the proposed District because those documents essentially describe two parcels separated by I-95. There are no parcels of real property within the external boundaries of the two separate parcels that are excluded from the District.
Petition Exhibit 3 names the two owners of all property within the boundaries of the proposed District--namely, the Petitioner and Stanaki Partnership, a Florida general
partnership--both of whom have given written consent to establishment of the District.
The Petition states that the name of the proposed District will be the "Pioneer Community Development District."
The Petition names those designated to be the five initial members of the Board of Supervisors of the proposed District--J. Andrew Hagan, Jean Trinder, Richard Smith, Cheryl Hamilton and Cynthia Jones. An identical address (2379 Beville Road, Daytona Beach, Florida 32119) is listed for each of them. The Petition states that each is a resident of the State of Florida and a citizen of the United States of America.
The Petition states that the lands within the proposed District are largely undeveloped but also states that existing land uses within the proposed District are depicted in Petition Exhibit 4. The Petition also states that "future general distribution, location and extent of the public and private land uses according to the local effective future land use map [FLUM] proposed to be within the District are shown on [Petition] Exhibit 5." However, Petition Exhibit 4 actually shows the existing FLUM, and Petition Exhibit 5 actually shows a proposed FLUM for the property.
The Petition states that Petition Exhibit 6 shows "the existing major trunk water mains, sewer interceptors and stormwater outfalls, if any." Petition Exhibit 6 is a drawing
of a Planned Unit Development (PUD) proposal for the property which depicts: "EXISTING Sanitary + Water + Reuse"; "DRAINAGE"; "Proposed Sanitary, Water, and Reuse Connections"; and "EXISTING & PROPOSED DRAINAGE OUTFALL."
The Petition alleges that the Petitioner "presently intends for the District to participate in the construction and installation of certain systems, facilities, and basis [sic] infrastructure within the scope of Section 190.012, Florida Statutes." The Petition states that its "Exhibit 7 describes the facilities that the Petitioner presently expects the District to finance, fund, plan, establish, acquire, construct, reconstruct, enlarge, equip, operate and/or maintain" and that its Exhibit 8 estimates the costs of construction. Actually, Petition Exhibits 7 and 8 list facilities, their ownership and maintenance, their financing, and their cost, respectively, as follows: Stormwater Management Facilities, CDD, CDD,
$15,200,000; Roadways, City, CDD, $9,500,000; Utilities, City, CDD, $12,300,000; Landscaping and Hardscaping, CDD, CDD,
$8,700,000; and Facilities for Indoor and Outdoor Cultural and Recreational Uses (Initiation + 4 years operation), CDD, CDD,
$3,800,000. Petition Exhibit 8 adds $3,026,000 for "Design + Engineering, Environmental, and Surveying Permitting." The Petition states that "[t]hese improvements are expected to be made over a ten year period, approximately from 2005 through
2015" but cautions that "[a]ctual construction timetables and expenditures will likely vary, due in part to the effects of future changes in the economic . . . and market conditions."
The Petition alleges that its Exhibit 9 is a Statement of Estimated Regulatory Costs (SERC) based on presently available data and a methodology described in the SERC. In particular, the SERC was prepared in accordance with the requirements of Section 120.541(2), Florida Statutes, but subject to the limitations of Section 190.002(2)(d), Florida Statutes, which states the policy of the State to be: "That the process of establishing such a district pursuant to uniform general law be fair and based only on factors material to managing and financing the service-delivery function of the district, so that any matter concerning permitting or planning of the development is not material or relevant." The SERC describes a plan of development for single-family residential units (some detached and some attached), multi-family housing, and commercial mixed-use, with a total of 1,300 residential units and 25 acres of commercial mixed-use.
The SERC contains an estimate of the costs and benefits to persons directly affected by the proposed rule to establish the District--including the State of Florida and its citizens, the County and its citizens, the City of Port Orange
and its citizens, the Petitioner, and consumers (i.e., purchasers of land in the proposed District.)
The SERC states that the State and its citizens will only incur minimal costs from establishing the District beyond administrative costs related to rule adoption. These costs are related to the incremental costs to various agencies of reviewing one additional local government report. The proposed District will require no subsidies from the State.
Administrative costs incurred by the County related to rule adoption should be minimal and are offset by the required filing fee of $15,000 to both Volusia County and the City of Port Orange. Benefits to the City of Port Orange and County will include improved planning and coordination of development, without incurring any administrative or maintenance burden for facilities and services within the proposed District except for those it chooses to accept.
Consumers choosing to purchase property within the proposed District will pay non-ad valorem or special assessments for the District facilities, maintenance, and operation. Generally, District financing through issuance of bonds secured by non-ad valorem or special assessments for facilities will be no more if not less expensive than financing through municipal service taxing unit (MSTU), a homeowners' or property owners' association (HOA or POA), County provision, or developer equity
and/or bank 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 choose to accept the District's costs in trade off for the benefits that the District provides them, including the use of District facilities.
The Petition alleges that, prior to filing with FLWAC, copies were sent to the City of Port Orange and to Volusia County, along with the required filing fee of $15,000 to each of those local governments, in accordance with Section 190.005(1)(b)1., Florida Statutes.
The Petition alleges that it should be granted according to the factors listed in Section 190.005(1)(e), Florida Statutes.
Additional Information from Local Public Hearing
The Petitioner published notice of the local public hearing in a newspaper of general paid circulation in Port Orange/Volusia County (the News-Journal) for four consecutive weeks, on July 5, July 12, July 19, and July 26, 2005, as required by Section 190.005(1)(d), Florida Statutes.
Volusia County did not hold a public hearing on the establishment of the proposed District, as permitted by Section 190.005(1)(c), Florida Statutes. Public comment suggested that the County was not fully aware of the nature of the lands to be included in the CDD proposed in the Petition when it decided not to hold a public hearing. But this suggestion was not corroborated by any representative of the County. To the contrary, the Petition reveals the location of the lands at issue.
The City of Port Orange held a public hearing on the establishment of the District on June 28, 2005. As a result of that hearing, the City adopted Resolution No. 05-49 in support of the proposed District. But the exact nature of the support expressed by the City of Port Orange is not clear. Section 1(4) of the Resolution stated that it "is subject to a subsequent interlocal agreement to be entered into between the District and the City as well as any subsequent agreement with the Petitioner whereby the District, the City and the Petitioner reach agreement concerning the participation by the District or the Petitioner in certain described facilities and services, including "(a) to plan, establish, acquire, construct or reconstruct, enlarge or extend, equip, operate and maintain additional systems and facilities for . . . (vii) Public facilities needed to meet concurrency, including but not limited
to an additional interchange on I-95 and improvement to one or more county or state roads within or impacted by the District." Based on this language, the Petitioner's Proposed Report characterizes Resolution 5-49 as being "predicated on the Petitioner’s commitment to consider cooperating with the City on certain joint projects, including a possible interchange at Pioneer Trail and Interstate 95."
Pioneer Trail, a two-lane County road, is contiguous to the southern external boundaries of the two parcels that would comprise the proposed District. Pioneer Trail passes over I-95 without an interstate access interchange. There was public comment, which the Petitioner did not refute or rebut, that Pioneer Trail is operating below its designated level of service standard, and that the addition of development proposed in the Stanaki PUD would only make things worse. There is no other existing road connection between the two halves of the proposed District.
The Petitioner takes the position that the applicable PUD3 entitles the Petitioner to develop its proposed project without those or any other road improvements as concurrency for the project. But there was no evidence describing the concurrency management system used by the City of Port Orange, or how it would affect proposed development. In addition, while the PUD documents in the record do not specifically require
additional road improvements as concurrency for the project, they do provide that, if the project is built in phases, and the area east of I-95 is "developed in advance of the 'beltline' extension and I-95 crossing being constructed," the developers under the PUD must "provide adequate assurances to the City that necessary public services and compliance with the City's concurrency management regulations can be provided by the time construction of the first phase of the property east of I-95 is complete." While the PUD appears to include a plan to extend the "beltline" through the property from Williamson Boulevard near the northwestern corner of the District, over I-95, and connecting to Martin Dairy Road, to the southeastern corner of the District, there was public comment to the effect that local citizens groups had succeeded in prohibiting the "beltline" extension through the property. The Petitioner did not refute or rebut this suggestion. To the contrary, the proposed FLUM included in the Petition does not include a "beltline" extension, or any other road within the proposed District connecting the two parcels on either side of I-95.
No copy of the Petition was submitted, nor filing fee paid, to the City of New Smyrna Beach, and the City of New Smyrna Beach did not hold a hearing on the Petition.
It appears from the evidence in the record that the southern external boundary of the proposed District is separated
from the City of New Smyrna Beach only by the County-owned Pioneer Trail right-of-way.
Factor 1- Petition True and Correct
As corrected in testimony, and as explained above, the Petition is true and correct, excepting the conclusive allegation that the Petition should be granted according to the factors listed in Section 190.005(1)(e), Florida Statutes, which must be discussed further, infra.
Factor 2 - Consistency with Comprehensive Plans
State Comprehensive Plan Subject 15, Land Use, states:
Goal.--In recognition of the importance of preserving the natural resources and enhancing the quality of life of the state, development shall be directed to those areas which have in place, or have agreements to provide, the land and water resources, fiscal abilities, and service capacity to accommodate growth in an environmentally acceptable manner.
§ 187.201(15)(a), Fla. Stat. Districts such as the proposed Pioneer CDD are designed to provide the special services and facilities needed to accommodate growth within its boundaries.
Public comment argued that the goal of Subject 15, Land Use, will not be met by the proposed District because the
450 acres of the proposed District east of I-95 should be preserved and added to the Doris Leeper Spruce Creek Preserve (DLSCP), which is east of the proposed District and borders it for approximately three linear miles. The DLSCP itself was
purchased and is owned by the State. Years of effort by local interests to add the 450 acres east of I-95, which includes the Left Trail Tributary to Spruce Creek, to the DLSCP culminated in its placement on the Conservation and Recreational Lands (CARL) acquisition list and an offer by the State to purchase the land in 2002. The owner (inferred to be the Stanaki Partnership) refused to sell. According to the public comment, which was not refuted or rebutted, the Petitioner then purchased an option to buy the property (or made some other kind of contingent offer to purchase it) for twice the amount offered by the State. The details of the arrangement were not made not clear.
In part, the Petitioner takes the position that the appropriate treatment of the lands east of I-95 is a "matter concerning planning and permitting," which is not "material or relevant" under Section 190.002(2)(d), Florida Statutes.4 The Petitioner also takes the position that those lands included within the existing and effective Stanaki PUD, which the Petitioner intends to develop regardless whether the Petition is granted. But it is clear that development would be easier through establishment of a CDD, and it is not clear that infrastructure concurrency requirements would be met, or that development actually would proceed, without establishment of a CDD.
If development proceeds, the St. Johns River Water Management District would prefer the use of a CDD to maintain sensitive environmental and stormwater systems, rather than the use of an HOA or POA. If ongoing discussions among the Petitioner, the City of Port Orange, and the Friends of Spruce Creek lead to an agreed modification of the existing PUD to preserve more of the 450 acres to the east of I-95, a CDD could be used to operate and maintain the preserve effectively.
The goal of Subject 17, Public Facilities, is: "Florida shall protect the substantial investments in public facilities that already exist and plan for and finance new facilities to serve residents in a timely, orderly, and efficient manner." § 187.201(17)(a), Fla. Stat. Policies under the goal include:
Allocate the costs of new public facilities on the basis of the benefits received by existing and future residents.
Create a partnership among state government, local governments, and the private sector which would identify and build needed public facilities and allocate the costs of such facilities among the partners in proportion to the benefits accruing to each of them.
Encourage local government financial self-sufficiency in providing public facilities.
* * *
7. Encourage the development, use, and coordination of capital improvement plans by all levels of government.
§ 187.201(17)(b), Fla. Stat. The proposed District will provide its improvements and facilities at no capital costs to local government. To that extent, establishment of the proposed District would allow the local governments to focus on other priorities. Ultimately, consistency with this goal and these policies will depend on a satisfactory agreement for the Petitioner to participate in the provisions of "[p]ublic facilities needed to meet concurrency, including but not limited to an additional interchange on I-95 and improvement to one or more county or state roads within or impacted by the District."
Subject 20, Governmental Efficiency, directs Florida governments to economically and efficiently provide the amount and quality of services required by the public. The proposed District will plan, finance, and deliver its own facilities. The development of the property does not burden the general taxpayer with the costs for services or facilities inside the District. The proposed District will be professionally managed, financed, and governed by those whose property directly receives the benefits of the services and facilities provided.
Subject 25, Plan Implementation, requires that systematic planning shall be incorporated into all levels of government throughout the State. This goal encourages intergovernmental coordination. The proposed District would systematically plan for the construction, operation and
maintenance of the public improvements and the community facilities authorized under Chapter 190, Florida Statutes, subject to and not inconsistent with the local government comprehensive plan and land development regulations.
Additionally, 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.
Furthermore, as indicated, the resolution adopted by the City of Port Orange contemplates the kind of intergovernmental coordination approved by this element of the State Comprehensive Plan.
Public comment argued that establishing the CDD would be inconsistent with Subject 25 because it would be at odds with the State's plan to purchase the 450 acres east of I-95 for addition to the DLSCP. There is some merit to the argument to the extent that establishing a CDD on the property might make outright purchase and development by the Petitioner more likely (notwithstanding the Petitioner's position that it will proceed with outright purchase and development regardless whether a CDD is established). Again, the Petitioner takes the position that the appropriate treatment of the lands east of I-95 is a "matter concerning planning and permitting," which is not "material or relevant" under Section 190.002(2)(d), Florida Statutes. In addition, as mentioned, if ongoing discussions among the
Petitioner, the City of Port Orange, and the Friends of Spruce Creek lead to an agreed modification of the existing PUD to preserve more of the 450 acres to the east of I-95, a CDD could be used to operate and maintain the preserve effectively.
Witness DuRant testified that he reviewed the relevant portions of the effective local (City of Port Orange) Comprehensive Plan in light of the establishment of the proposed District. He opined that the establishment of the proposed District is not inconsistent with the City of Port Orange Comprehensive Plan. However, as indicated previously, Petition Exhibit 4 actually shows the existing FLUM, and Petition Exhibit
5 actually shows a proposed FLUM for the property. Although the evidence in the record is not clear, it appears that the purpose of the proposed FLUM is to accommodate the Petitioner's proposed development plans, which do not appear to be consistent with the existing FLUM. Likewise, the current Stanaki PUD does not appear to be consistent with the existing FLUM.
Factor 3 - Sufficient Size, Compactness, and Contiguity
As indicated, the area of land within the proposed District is bisected by I-95 and its right-of-way, with the only existing roadway connection between the two parcels being via the two-laned County Road, Pioneer Trail, which is outside the external boundaries of the proposed District. Nonetheless, the Petitioner's witnesses DuRant, Mossing, and Perry testified that
the property proposed for inclusion in the District is of sufficient size, is sufficiently compact, and is "sufficiently contiguous" to be developable, in accordance with the existing Stanaki PUD, as one functional interrelated community.
Witness DuRant testified that the water, sewer, and stormwater management and utility systems are designed and being permitted as one interrelated, linked system. Each system will connect under I-95. Current stormwater drainage patterns are from west to east and can continue post-development through existing culverts and drainage connections under I-95.
Members of the public stated verbally and in correspondence that, because the parcels are located on either side of I-95, the configuration of the proposed District cannot be considered sufficiently contiguous for establishment as one community development district. These comments were refuted in rebuttal testimony of witness Mossing, who testified based upon his work with other districts and a review of certified copies of maps from the Department of Community Affairs, that a number of existing and functioning community development districts are established and operating with configurations that are less contiguous than the proposed Pioneer CDD. Some of these districts have been established and function even though located on either side of I-4, I-75, assorted state roads and other features. Witness Mossing testified that the division of
property by major transportation corridors or other intervening spaces will not in and of itself impair the ability of the District to function as one interrelated community. However, in this case, the issue is not so much the existence of I-95, per se, as much as it is the absence of any road connection between the two parcels on either side of it, other than the two-laned Pioneer Trail. Even if "sufficiently contiguous to be developable as one functional interrelated community," the quality of the functional interrelations between the two parcels on either side of I-95 will depend on making improvements to Pioneer Trail or creating some other suitable road connection between the two parcels.
Factor 4 - Best Alternative
It is presently intended that the District will participate in the construction or provision of certain infrastructure improvements as outlined in the Petition.
Installation and maintenance of infrastructure systems and services by the District are expected to be paid through the imposition of special assessments. Use of such assessments will ensure that the real property benefiting from District services is the same property which pays for them.
Two types of alternatives to the establishment of the District were identified. First, the City might provide facilities and services from its general fund. Second,
facilities and services might be provided by some private means, with maintenance delegated to a POA or HOA.
The District will be governed and managed by its own board of supervisors, thereby allowing greater focus on the needs of the District and its facilities and services.
The District will construct certain infrastructure and community facilities which will be needed by the property owners and residents of the project. Expenses for the operations and maintenance are expected to be paid through maintenance assessments to ensure that the property or person receiving the benefit of the district services is the same property or person to pay for those services.
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. No other alternative has these characteristics. Further, a community development district is the entity preferred by the St. Johns River Water Management District.
From an engineering perspective, the proposed District is the best alternative to provide the proposed community development services and facilities to the land included in the proposed District because it is a long-term, stable, perpetual
entity capable of maintaining the facilities over their expected life.
From planning, economic, engineering, and management perspectives, the proposed District is the best alternative available for delivering community development services and facilities to the area proposed to be served by the District.
Factor 5 - Compatibility with Existing Capacity and Uses
The services and facilities proposed to be provided by the District are not incompatible with the capacity and uses and existing local and regional community development facilities and services. The community development facilities and services proposed within the District's boundaries will not duplicate any existing regional services or facilities which are provided to the lands within the District by another entity. None of the proposed services or facilities are presently being provided by another entity for the lands to be included within the District.
The only public comment pertinent to this issue suggested that the City of New Smyrna Beach was in a better position to provide utility services to the portions of the proposed District east of I-95. However, the Stanaki PUD for the lands requires that services be provided by the City of Port Orange, and the proposed utility systems connect under I-95 and are designed to be served by the City of Port Orange.
Factor 6 - Amenability to Separate Government
The community proposed to be included in the District would have need for the basic infrastructure systems to be provided. Subject to the discussion on the other factors, from planning, economics, engineering, and special district management perspectives, the area of land to be included in the proposed District is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developed and become a functionally interrelated community, and would be amenable to separate special-district government.
APPLICABLE LAW
General
Section 190.005(1), Florida Statutes, provides that the sole means for establishing a community development district of 1,000 acres or more shall be by rule adopted by FLWAC in granting a petition for the establishment of a CDD. Section 190.005(2) provides that, for CDDs on proposed property of less than 1,000 acres, the county in which the proposed CDD is to be situated may establish a CDD under the same requirements discussed below.
Section 190.005(1)(a), Florida Statutes, requires that the petition be filed with FLWAC. The petition must describe by metes and bounds the area to be serviced by the CDD with a specific description of real property to be excluded from the
district. The petition must 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. The petition must designate the five initial members of the board of supervisors of the CDD and the District's name. The petition must contain a map showing "current major trunk water mains and sewer interceptors and outfalls if any." Section 190.005(1)(a), Florida Statutes, also requires that the petition propose a timetable for construction and an estimate of construction costs. The petition must designate "the future general distribution, location, and extent of public and private uses of land proposed for the area within the district by the future land use element of the effective local government comprehensive plan . . . ." Finally, the petition must contain a SERC in accordance with the requirements of Section 120.541, Florida Statutes.
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 serve a copy of the petition on those local, general-purpose governments.
According to Black's Law Dictionary, (8th Ed. 2004), "contiguous" is an adjective meaning: " 1. Touching at a point or along a boundary; ADJOINING <Texas and Oklahoma are contiguous>. 2. Near in time or sequence; successive <contiguous thunder and lightning>." The Black's Law Dictionary or a substantially similar definition has been used repeatedly by the courts, but the application of the definition has depended on the context.
In the context of establishing house or senate districts, the Black's Law Dictionary definition is used. In addition, lands that mutually touch only at a common corner or right angle are not regarded as “contiguous.” See In re Constitutionality of House Joint Resolution 25E, 863 So. 2d 1176, 1179-1180 (Fla. 2003); In re Constitutionality of House
Joint Resolution 1987, 817 So. 2d 819, 827-828 (Fla. 2002); In re Senate Joint Resolution 2G, Special, 597 So. 2d 276, 279 (Fla. 1992); In re Apportionment Law, Senate Joint Resolution 1 E, 414 So. 2d 1040, 1051 (Fla. 1982). However, contiguity "does not impose a requirement of a paved, dry road connecting all parts of a district" and "does not require convenience and ease of travel, or travel by terrestrial rather than marine forms of transportation . . . ." Id.
In Davis Water & Waste Industries, Inc. v. Embry, 603 So. 2d 1357, 1358-1359 (Fla. 1st DCA 1992), the context was a
construction lien statute providing that, when "services or materials are placed on land dedicated to public use and are furnished under contract with the owner of the abutting land," a construction lien can be imposed on the "abutting land." "Abutting" was defined using its synonym "contiguous," and the lien was not allowed when the defendant's land was separated from the work site by intervening lands and was over a mile away, notwithstanding that the defendant's lands benefited from the work.
In City of Miami v. Carson, 237 So. 2d 805, 806 (Fla.
3d DCA 1970), essentially the same Black's Law Dictionary definition was used in construing a local ordinance allowing open parking lots as a conditional use in a single-family use district if "contiguous" to an area zoned commercial, or if separated from an area zoned commercial only by a specifically defined "alley." In that context, separation by a "through street" destroyed the required contiguity and precluded the requested conditional use.
In the context of annexation, "contiguous" is defined by Section 171.031(11), Florida Statutes, to mean:
that a substantial part of a boundary of the territory sought to be annexed by a municipality is coterminous with a part of the boundary of the municipality. The separation of the territory sought to be annexed from the annexing municipality by a publicly owned county park; a right-of-way
for a highway, road, railroad, canal, or utility; or a body of water, watercourse, or other minor geographical division of a similar nature, running parallel with and between the territory sought to be annexed and the annexing municipality, shall not prevent annexation under this act, provided the presence of such a division does not, as a practical matter, prevent the territory sought to be annexed and the annexing municipality from becoming a unified whole with respect to municipal services or prevent their inhabitants from fully associating and trading with each other, socially and economically. However, nothing herein shall be construed to allow local rights-of-way, utility easements, railroad rights-of-way, or like entities to be annexed in a corridor fashion to gain contiguity; and when any provision or provisions of special law or laws prohibit the annexation of territory that is separated from the annexing municipality by a body of water or watercourse, then that law shall prevent annexation under this act.
Applying this statutory definition, it was held in May v. Lee
County, 483 So. 2d 481, 482-483 (Fla. 2d DCA 1986):
When used in the context of municipal annexation, the term “contiguous” has been defined as “touching or adjoining in a reasonably substantial . . . sense.” Wescom, Inc. v. Woodridge Park District, 49 Ill.App.3d 903, 7 Ill.Dec. 560, 563, 364
N.E.2d 721, 724 (1977). But for the presence of Interstate 75, May's property would border upon the existing city limits of Fort Myers.FN1 Ordinarily, the presence of a road running parallel to a city's boundary should not prevent the assimilation of adjoining territory. People ex rel.
Strong v. City of Whittier, 133 Cal.App. 316, 24 P.2d 219 (1933); People ex rel. Forde v. Town of Corte Madera, 115 Cal.App.2d 32, 251 P.2d 988 (1952). That
the road involved in the present case is a limited access highway does not interfere with our finding that May's property is contiguous to the city boundary. Such a determination depends upon the character of the areas immediately adjacent to the Interstate highway. Piester v. City of North Platte, Lincoln County, 198 Neb. 220,
252 N.W.2d 159 (1977). A different conclusion might be drawn if the Interstate effectively barred all access between the May property and the city. Cf. Town of Boynton v. State ex rel. Davis, 103 Fla. 1113, 138 So. 639 (1932) (unimproved property cut off from city by inlet and occasionally inaccessible). But here, access may be had from Colonial Boulevard, which is not a limited access highway, especially given May's agreement to construct a crossover leading to his property.
FN1. At the time May submitted his petition to the city, the southeast corner of the existing city limits and the northwest corner of May's property abutted the I- 75/Colonial Boulevard interchange. There is some dispute whether parcels which only “corner” upon one another may be considered “contiguous.” See People ex rel. Hanrahan v. Village of Wheeling, 42 Ill.App.3d 825, 1
Ill.Dec. 524, 356 N.E.2d 806 (1976). But
see Clements v. Crawford County Bank, 64 Ark. 7, 40 S.W. 132 (1897); Kalb v. City of
West Helena, 249 Ark. 1123, 463 S.W.2d 368 (1971). However, in the interim between the initial petition and the circuit court decision, another tract of land located immediately across the Interstate from May's parcel, and south of Colonial Boulevard, was annexed by the city. That annexation does not appear to have been contested. Thus, May's property and the present city limits do not merely “corner.”
Unlike the definition in the annexation statute, there is nothing in Section 190.005(1)(b) suggesting that the usual definition of "contiguous" should not apply.
Section 190.005(1)(c), Florida Statutes, permits the county and each municipality described in the preceding paragraph to conduct a public hearing "to consider the relationship of the petition to the factors specified in paragraph (e)." Those governments may then present resolutions to FLWAC supporting or objecting to granting the petition based on those factors.
Section 190.005(1)(d), Florida Statutes, requires that a DOAH ALJ conduct a local public hearing pursuant to Chapter 120, Florida Statutes. The hearing "shall include oral and written comments on the petition pertinent to the factors specified in paragraph (e). . . . The petitioner shall cause a notice of the hearing to be published in a newspaper at least once a week for the 4 successive weeks immediately prior to the hearing." § 190.005(1)(d), Fla. Stat.
Factors by Law to be Considered for Granting or Denying Petition
Section 190.005(1)(e), Florida Statutes, provides that FLWAC 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 (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 or portion of the state comprehensive plan or of 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.
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.
As to the second factor, consistency with the FLUM of the local comprehensive plan has been considered in local public hearings under Section 190.005, Florida Statutes. Cf., e.g., In Re: Establishment by Rule of the Brooks of Bonita Springs Community Development District, DOAH Case No. 97-3367, 1997 WL 1053424 (Dec. 17, 1997)(examining in detail consistency with local comprehensive plan, including the FLUM). But Section
190.002(2)(d), Florida Statutes, states the policy of the State to be: "That the process of establishing such a district pursuant to uniform general law be fair and based only on factors material to managing and financing the service-delivery function of the district, so that any matter concerning permitting or planning of the development is not material or relevant." Reading the two statutes in pari materia, it must be concluded that the FLUM inconsistency in this case does not preclude establishment of a CDD.
In the context of establishment of a CDD, the third factor requires the lands to be "sufficiently contiguous to be developable as one functional interrelated community." Unlike the use of the word "contiguous" in Section 190.005(1)(b), this context suggests an enlargement of the usual definition of "contiguous" or, perhaps, allowance of a wider-than-usual boundary, similar to the definition of "contiguous" in the annexation statute. In support of that construction of the statute, the Petitioner cites to several examples of previously- established CDDs where lands included in the CDD actually were not "contiguous" in the usual sense of touching.
COMPARISON OF INFORMATION IN RECORD TO APPLICABLE LAW
Procedural Requirements
The evidence was that the Petition, as supplemented and corrected, was filed in the proper form and with the
required attachments; and that the statutorily-required notice of the local public hearing was published. A $15,000 filing was paid, and a copy of the Petition was submitted, to Volusia County and to the City of Port Orange. No filing fee was paid, or copy of the Petition submitted, to the City of New Smyrna Beach. But the County-owned Pioneer Trail right-of-way separates the proposed district from the City of New Smyrna Beach, that municipality's boundaries are not technically "contiguous with," in the usual sense of physically touching, "the land within the external boundaries of the district." As discussed, supra, unlike in the context of Section 190.005(1)(e)3., there is no justification in Section 190.005(1)(b) for enlarging the definition of "contiguous" beyond the usual definition of touching. For that reason, the Petitioner was not required to pay the filing fee, or submit a copy of the Petition to, the City of New Smyrna Beach.
Six Factors of Section 190.005(1)(e), Florida Statutes
The evidence was that the statements in the Petition and its attachments, as supplemented and corrected, are true and correct, excepting the conclusive allegation that it should be granted according to the factors listed in Section 190.005(1)(e), Florida Statutes, which must be discussed further, infra.
The evidence was that establishment of the proposed CDD is consistent with the portions of the City of Port Orange Comprehensive Plan "material to managing and financing the service-delivery function of the district." § 190.002(2)(d), Fla. Stat. It does not appear from the evidence that establishment of the proposed CDD is consistent with the FLUM of the City of Port Orange Comprehensive Plan, but "any matter concerning permitting or planning of the development is not material or relevant." Id. It appears from the evidence that establishment of the proposed CDD would be consistent with the State Comprehensive Plan, unless at odds with State plans to purchase the 450 acres east of I-95. But those inconsistencies also would appear to be a "matter concerning permitting or planning of the development [which] is not material or relevant." Id.
The evidence was that the size, compactness, and contiguity of the proposed land area are sufficient for it to be developed as "one functional interrelated community."
The evidence was that the proposed CDD is the best alternative presently available for delivering the community development systems, facilities, and services proposed for the land area to be included in the CDD.
The evidence was that the services and facilities to be provided by the proposed CDD will be compatible with the
capacity and uses of existing local and regional community development services and facilities.
The evidence was that the proposed area to be served by the proposed CDD is amenable to separate special-district government.
CONCLUSION
Section 190.005(1)(e), Florida Statutes, states that 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, as supplemented and corrected, the Petition appears to meet all statutory requirements, and there appears to be no compelling reason not to grant the Petition, as supplemented and corrected, and establish the proposed Pioneer Community Development District by rule, unless establishment would be at odds with State plans to purchase the 450 acres east of I-95.5
DONE AND ENTERED this 21st day of September, 2005, 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 21st day of September, 2005.
ENDNOTES
1/ All references to Florida Statutes are to the 2004 codification.
2/ Section 190.005(1)(d), Florida Statutes, provides that the local public hearing "shall be conducted . . . in conformance with the applicable requirements and procedures of the Administrative Procedure Act." However, this is not a quasi- judicial, adversarial proceeding under Sections 120.569 and 120.57, Florida Statutes, for resolution of factual disputes. Rather, it is a quasi-legislative, information-gathering hearing that is part of the rulemaking process. Section 120.54(8), Florida Statutes, describes the Rulemaking Record as including: "(c) A written summary of hearings on the proposed rule." For these reasons, a recommended order with findings of fact and conclusions of law is not appropriate. Instead, the ALJ files a report which constitutes the hearing summary portion of the rulemaking record under Section 120.54(8)(c), Florida Statutes.
3/ By the terms of the PUD, if development has not commenced on or before July 31, 2004, the PUD expires, becomes null and void, and has no further effect on the PUD property. "Development" is defined to "include, but not be limited to, submission of plans for subdivision of all or a part of the PUD Property,
application for permits . . . for installation of improvements or infrastructure which will implement the PUD Development Agreement, C[onceptual] D[esign] P[lan] or any other 'Development' as that term is applied by the Administrative Official." In light of testimony on behalf of the Petitioner that the PUD is "applicable," it is assumed that it has not expired.
4/ Section 190.002(2)(d), Florida Statutes, states the policy of the State to be: "That the process of establishing such a district pursuant to uniform general law be fair and based only on factors material to managing and financing the service- delivery function of the district, so that any matter concerning permitting or planning of the development is not material or relevant."
5/ For purposes of drafting such a rule, the legal description may be found in Petition Exhibit 2 to the Petition, which is the Petitioner's Hearing Exhibit 2.
COPIES FURNISHED:
Michael P. Hansen, Secretary
Florida Land and Water Adjudicatory Commission The Capitol, Suite 1802
Tallahassee, Florida 32399-0001
Barbara Leighty, Clerk
Growth Management and Strategic Planning The Capitol, Room 1802
Tallahassee, Florida 32399-0001
Raquel A. Rodriguez, General Counsel Office of the Governor
The Capitol, Suite 209 Tallahassee, Florida 32399-1001
Heidi Hughes, General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100
Jonathan T. Johnson, Esquire Paula M. Sparkman, Esquire Hopping, Green, & Sams, P.A. Post Office Box 6526 Tallahassee, Florida 32314-6526
| Issue Date | Document | Summary |
|---|---|---|
| Sep. 21, 2005 | Recommended Order | Given the construction of "contiguous" as used in the Florida Statute, all factors were met and the community development district should be established, unless the establishment would impede State plans to purchase the property. |
