Conclusions Having considered the totality of the record in this cause and being mindful of the development order of Lee County referenced above and the lack of expressed opposition to the establishment of the subject community services district by Lee County or any other person or entity, it is, concluded: That all statements contained within the petition are found to be true and correct. That the creation of the district is consistent with applicable elements or portions of the Lee County Comprehensive Plan. That the area of land within the proposed district is of sufficient size, sufficiently compact, and is sufficiently contiguous to be developable as one functional, interrelated community. That the district is the best alternative available for delivering community development services and facilities to the area that will be served by the district. That the community development services and facilities of the district would be compatible with the capacity and uses of existing local and regional community development services and facilities. That the area that will be served by the district is amenable to separate, special-district government. DONE and ENTERED this 30th day of January, 1986 in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of January, 1986. COPIES FURNISHED: Ken van Assenderp, Esq. YOUNG, VAN ASSENDERP, VARNADOE & BENTON, P.A. Post Office Box 1833 Tallahassee, Florida 32302 Melvin D. Deutsch, II, Esq. Timothy Jones, Esq. Westinghouse Gateway Communities, Inc. 1625 Hendry Street, Suite 201 Fort Myers, Florida 33901 Michael J. Ciccarone, Esq. Assistant County Attorney Lee County Post Office Box 398 Fort Myers, Florida 33902 Glenn Robertson, Secretary Florida Land Water Adjudicatory Commission Office of the Governori The Captol Tallahassee, Florida 32301
The Issue The issues to be determined in this appeal are whether the decision of the Board to approve Flexible Development Application FLD2019-01002 (Application) filed by Edgewater Valor cannot be sustained by substantial competent evidence before the Board, or that the decision of the Board departed from the essential requirements of law.
Findings Of Fact Edgewater Valor proposes to develop an 80-unit attached dwelling with 164 associated off-street parking spaces on 2.931 acres of property it owns. The property is located at 1026 Sunset Point Road and 1919 Edgewater Drive in Clearwater, Florida. The proposal consists of three buildings and a structured parking platform with a pool and deck on the west side of the parking platform. Sixty percent of the 164 parking spaces is garage parking, with the rest as exposed surface parking. Two of the buildings, both in the T district, are proposed at a height of 86 feet measured from base flood elevation. The third building, in the MDR district, is proposed at a height of 38 feet measured from base flood elevation. The buildings in the T district are set back 152 feet from the east property line. The building in the MDR district is set back 75 feet from the east property line. The proposal includes landscaping and setbacks that exceed the Board's requirements for approval. The Application requests Level Two approval of flexibility for a building height of 86 feet from base flood elevation in the T zoning district. A Level One approval allows a building height of up to 50 feet, and up to 100 feet as a Level Two approval. The Application also requests Level Two approval of flexibility for an attached dwelling use in the MDR zoning district. The attached dwelling has a building height of 38 feet from base flood elevation, where up to 40 feet is allowed as a Level Two approval and flexibility from lot width in the MDR zoning district. Edgewater Valor owns 2.437 acres of the property which is zoned T with an underlying Comprehensive Plan Future Land Use category of Resort Facilities High (RFH). The remaining 0.494 acres is zoned MDR with an underlying Comprehensive Plan Future Land Use category of Residential Medium (RM). The property to the north of the proposed development is zoned T and is currently developed as a Comfort Suites hotel. The property to the south is zoned Office (O), MDR, and Preservation (P). There is a vacant automobile service station adjacent to the proposed development to the southwest, and a multi-family development to the south across Sunset Point Road. The property to the east is zoned MDR and P with single-family detached dwellings and attached dwellings further east along Sunset Point Road. The property to the west is zoned Commercial (C) and P. EDNA's boundaries are Sunset Point Road north to Union Street, and Edgewater Drive east to Pinellas Trail. The neighborhood consists of 400 homes that are mostly single-family, single-story detached dwellings. The proposed development would be located in the southwest corner of the neighborhood at the intersection of Edgewater Drive and Sunnydale Drive. The Comfort Suites hotel is located directly across from the proposed development on the opposite corner of Sunnydale Drive and Edgewater Drive. Sunnydale Drive travels east away from Edgewater Drive and dead-ends as a cul-de-sac with mostly single- family detached dwellings.
The Issue The issue in this case is whether the Florida Land and Water Adjudicatory Commission should promulgate a rule establishing the Fiddler's Creek Community Development District.
The Issue The issue in this proceeding is whether the petition to establish the Sampson Creek Community Development District meets the applicable criteria set forth in Chapter 190, Florida Statutes, and Chapter 42-1, Florida Administrative Code.
Findings Of Fact Petitioner is seeking the adoption of a rule by the Commission to establish the Sampson Creek Community Development District. The proposed District consists of approximately 1,015 acres located within unincorporated St. Johns County, Florida. There are two out-parcels, totaling 3.7 acres, within the areas to be included in the District. No adverse impact on these out parcels is expected from the establishment of the district. The estimated cost of the infrastructure facilities and services which are presently expected to be provided to the lands within the District was included in the Petition. Petitioner's Composite Exhibit 1 was identified for the record as a copy of the Petition and its exhibits as filed with the Commission. Witnesses Maier, Walters, Boring, and Fishkind each stated that he had reviewed portions of the contents of the petition and its attachments and affirmed the petitions findings. Witness Maier testified that the Petitioner has written consent to establish the District from the owners of one hundred percent of the real property located within the lands to be included in the District. Witness Maier also presented deeds for parcels of land within the boundaries of the proposed District which have been acquired by the Petitioner or its subsidiaries, as well as consent forms from the Petitioner's subsidiaries. The Petition and its attached exhibits are true and correct, with the addition of the deeds showing land ownership and owners' consent as specified above. Witnesses Walters and Fishkind reviewed the proposed District in light of the requirements of the State Comprehensive Plan, Chapter 187, Florida Statutes. Witness Walters also reviewed the proposed District in light of the requirements of the St. Johns County Comprehensive Plan. From a planning and economic perspective, four subjects, subject 16, 18, 21, and 26, of the State Comprehensive Plan apply directly to the establishment of the proposed District as do the policies supporting those subjects. Subject 16, titled Land Use, of the State Comprehensive Plan recognizes the importance of locating development in areas with the fiscal ability and service capacity to accommodate growth. The proposed District will: have the fiscal capability to provide a wide range of services and facilities to the population in the designated growth area; help provide infrastructure to development the County, thereby helping limit unintended, unplanned sprawl; facilitate the delivery of infrastructure and services to assist in fulfilling the community plan. Subject 18, titled Public Facilities of the State Comprehensive Plan 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 District will be consistent with this element because the District will: plan and finance the infrastructure systems and facilities needed for the development of lands within the District in a timely, orderly, and efficient manner; 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; act in a type of 'infrastructure partnership' with St. Johns County; have financial self-sufficiency through the use of special assessments, as well as user charges or fees, to provide public facilities; 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 be structured to assure secure revenue sources capable of meeting District responsibilities. Subject 21, titled Governmental Efficiency of the State Comprehensive Plan provides that governments shall economically and efficiently provide the amount and quality of services required by the public. The proposed District will be consistent with this element because the proposed District will: cooperate with other levels of Florida government, such as through entering into interlocal agreement to address maintenance issues for certain roads; be established under uniform general law standards as specified in Chapter 190, Florida Statutes; be professionally managed, financed, and governed by those whose property directly receives the benefits; not burden the general taxpayer with costs for services or facilities inside the District; and plan and implement cost efficient solutions for the required public infrastructure and assure delivery of selected services to residents. Subject 26, titled Plan Implementation of the State Comprehensive Plan, provides that systematic planning shall be integrated into all levels of government, with emphasis on intergovernmental coordination and citizen involvement. The proposed District is consistent with this element of the State Comprehensive Plan because: the proposed 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; 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; 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. Based on the testimony and exhibits in the record, the proposed District will not be inconsistent with any applicable element or portion of the State Comprehensive Plan. Witness Walters testified that since St. Johns County has already found the development within the proposed District to be not inconsistent with the St. Johns County local comprehensive plan, the establishment of a community development district would not cause any inconsistency and would be in furtherance of four of the plan's policies, goals and objectives: Policy H.1.3.4 of the St. Johns County Comprehensive Plan states that 'DRI's planned unit subdivisions, and other large developments shall provide for the dedication of parks and open space to be generated by the development according to the level of service standards.' The proposed District will finance the construction of, and ultimately own and maintain, a community recreational facility. Goal J.1 of the St. Johns County Comprehensive Plan states that St. Johns County is to ensure the orderly and efficient provision of infrastructure facilities and services such as roads, utilities, recreation, and drainage. The proposed District will serve as an alternative provider of these infrastructure systems and services to meet the needs of the lands within its boundaries; Objective J.1.7 of the St. Johns County Comprehensive Plan states that the County shall manage fiscal resources to ensure the provision of needed infrastructure. The proposed District will provide the infrastructure facilities and services needed for its lands without burdening the fiscal resources of the County or impacting the bonding limits contained in Policy J.1.7.; Objective K.1.6 of the St. Johns County Comprehensive Plan calls for St. Johns County to work cooperatively with other units of government to address issues and concerns. The proposed District may be expected to enter into interlocal agreements with the County to provide certain enhanced maintenance. Additionally, over the long term, the establishment of the proposed District will provide another unit of local government in place and able to cooperate with the County on future issues and concerns. The State of Florida Department of Community Affairs also reviewed the petition to establish the proposed District and concluded that the petition was consistent with the local comprehensive plan. Based on the evidence in the record, the proposed District will not be inconsistent with any applicable element or portion of the local comprehensive plan, and will in fact further the goals provided. Most of the land in the proposed District is part of a planned community included in a Planned Unit Development (PUD) approval issued by St. Johns County. The PUD was approved on February 10, 1998. The PUD is found in St. Johns County Ordinance No. 98-7. Section 6 of the PUD Application, which is incorporated into Ordinance 98-7 by reference, explicitly states that a community development district will be established and requires the establishment of the District prior to the sale of the first lot within the development. Petitioner is developing all of the lands within the District as a single master-planned community. Witness Walters testified that functional interrelation means that each community purpose has a mutual reinforcing relationship with each of the community's other purposes. Each function requires a management capability, funding source and an understanding of the size of the community's needs, so as to handle the growth and development of the community. Each function must be designed to contribute to the development or the maintenance of the community. The size of the District as proposed is approximately 1,105 acres. From a planning perspective, this is a sufficient size to accommodate the basic infrastructure facilities and services typical of a functionally interrelated community. 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 inter-related community. The compact configuration of the lands will allow the District to provide for the installation and maintenance of its infrastructure facilities in a long-term cost efficient manner. The property is sufficiently contiguous when 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 District is sufficiently contiguous for planning purposes and for the purpose of district governance. The size of the proposed community within the District provides a sufficient economic base to absorb the debt costs and annual operating costs for the proposed District. There will be no economic disincentives to the provision of the infrastructure facilities contemplated. From planning, economics, engineering, and 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 as a single functionally interrelated community. 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 is expected to be financed by bonds and repaid through the imposition of special assessments on benefited property within the District. 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 use of the proposed District were identified. First, the County might provide facilities and services from its general fund or through a MSTU. Second, facilities and services might be provided by some private means, without public bidding, with maintenance delegated to a homeowners association (HOA). The District exceeds the available alternatives at focusing attention to when and where and how the next system of infrastructure will be required. This results in a full utilization of existing facilities before new facilities are constructed and reduces the delivered cost to the citizens being served. 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. All of the other alternatives do not have these characteristics. From an engineering perspective, the proposed District is the best alternative to provide the proposed community development services and facilities because it is a long-term stable, perpetual entity capable of maintaining the facilities over their expected life. From planning, economic, engineering, and special district management perspectives, the proposed District is the best alternative available for delivering community development services and facilities to the are that will be served by the District. The services and facilities proposed to be provided by the District are not incompatible with uses and existing local and regional facilities and services. The District's facilities and services within the proposed 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. Therefore, the community development services and facilities of the proposed district will not be incompatible with the capacity and uses of existing local and regional community development services and facilities. As cited previously, 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. The lands to be included within the proposed District have a need for the basic infrastructure being provided. From an engineering perspective, the area within the proposed District is also large enough to support a staff necessary to operate and maintain the proposed infrastructure systems and facilities. Based upon these characteristics, the proposed District is expected to be financially viable. From planning, engineering, economic, and management perspectives, the area that will be served by the intended District is amenable to separate special-district government. Chapter 190, Florida Statutes, and Chapter 42-1, Florida Administrative Code, impose specific requirements regarding the petition and other information to be submitted to the Commission. Section 190.005(1)(a), Florida Statutes, requires the petition to contain a metes and bounds description of the external boundaries of the District. Petitioner's Composite Exhibit 1 contains such a description. Section 190.005(1)(a)1, Florida Statutes, 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. Petitioner's Composite Exhibit 1 contains the required information. Section 190.005(1)(a), Florida Statutes, requires that the petition contain the proposed timetable for the construction of any district services and the estimated construction costs for those services as well as the designation of the future general distribution, location, and extent of public and private land uses proposed for the area by the future land use element of the adopted local government comprehensive plan. Petitioner's Composite Exhibit 1 contains this information. Section 190.005(1)(a), Florida Statutes, requires the petition to contain written consent to establishment of the District by the owners of one-hundred percent of the real property to be included within the proposed District. Petitioner's Composite Exhibit 1 contains this information which was supplemented by Petitioner at hearing, as it or its subsidiaries acquired title to the lands proposed to be included within the District. Sections 190.005 and 190.006, Florida Statutes, require that each member of a board of supervisors be a resident of Florida and a citizen of the United States. The proposed board members meet these criteria. Section 109.005(1)(a), Florida Statutes, requires the petition to include a Statement of Estimated Regulatory Costs (SERC), which meets the requirements of Section 120.541, Florida Statutes. The petition contains a SERC. It meets all requirements of Section 120.541, Florida Statutes. The SERC contains an estimate of the costs and benefits to all persons directly affected by the proposed rule to establish the District -- the State of Florida and its citizens, the country and its citizens, Petitioner, and consumers. Beyond administrative costs related to rule adoption, the State and its citizens will only incur minimal costs from establishing the District. 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. Benefits will include improved planning and coordination of development, which is difficult to quantify but is nonetheless substantial. Administrative costs incurred by the County related to rule adoption should be minimal. Benefits to the 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 will pay non-ad valorem or special assessments for certain facilities. Location within the District is voluntary. Generally, District financing will be less expensive than maintenance through a property owners' association or capital improvements financed through developer loans. Benefits to consumers in the area within the community development district 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. Petitioner has complied with the provisions of Section 190.005(1)(b), Florida Statutes, in that St. Johns County was paid the requisite filing fees. Section 190.005(1)(d), Florida Statutes, requires the Petitioner to publish notice of the local public hearing in a newspaper of general circulation in St. Johns County for four consecutive weeks prior to the hearing. The notice was published in a newspaper of general paid circulation in St. Johns County (the St. Augustine Record) for four consecutive weeks on March 13, 2000, March 20, 2000, March 27, 2000, and April 3, 2000. All publications were prior to the hearing. Mr. Stephenson, on behalf of the County's community development district processing group formed in accordance with Section 5.06.00 of the St. Johns County Land Development Code, presented the following proposed findings regarding the approval of the development within the proposed District: On October 28, 1999, the St. Johns County Board of County Commissioners entered into an Impact Fee Agreement with St. Joe Residential Acquisitions, Inc., and A & S Land Development Company to widen a portion of CR 210 in order to meet concurrency requirements for two projects. St. Joe Residential Acquisitions, Inc. is the developer of the property contained within the Sampson Creek CDD Petition. The project is approved with a Planned Unit Development (PUD) zoning and contains 799 single family residential dwelling units and associated roadways, retention areas, common areas, sales and recreation complex, and an 18-hole golf course. St. Johns County Board of County Commissioners approved the PUB on February 10, 1998. The PUD provides that a CDD will be established and will be in place prior to the sale of the first lot so that purchasers will be aware of their participation and membership in the CDD and of their obligation to pay any taxes that may be levied by the CDD. The PUD and Impact Fee Agreement are separate County approved documents and the creation and operation of a CDD does not in any way affect these documents or their approval without further review by the St. Johns County Board of Commissioners. Impact fee credits shall be awarded in accordance with approved Impact Fee Agreement which ensures that the credits are awarded to the appropriate entity. The CDD processing group finds no inconsistencies with the six factors as described in Section 190.005(6), Florida Statutes. With these findings, Mr. Stephenson testified that St. Johns County has no objection to the establishment of the proposed District.
Conclusions On Monday April 10, 2000, at 10:00 a.m., the local public hearing for the Petition to Establish the Sampson Creek Community Development District was held before Administrative Law Judge Diane Cleavinger, at the St. Johns County Public Library, 950 Davis Pond Boulevard, in St. Johns County, Florida. The hearing was conducted pursuant to Section 190.005, Florida Statutes, for the purpose of taking testimony, public comment, and receiving exhibits on the petition of the St. Joe/Arvida Company, L.P. (Petitioner) to establish the Sampson Creek Community Development District (District) in northern St. Johns County, Florida. This report is prepared and submitted to the Florida Land and Water Adjudicatory Commission (Commission) pursuant to Section 190.005, Florida Statutes.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Governor and Cabinet, sitting as the Florida Land and Water Adjudicatory Commission, pursuant to Chapters 120, and 190, Florida Statutes, and Chapter 42-1, Florida Administrative Code, establish the Sampson Creek Community Development District as requested by Petitioner by formal adoption of the proposed rule, after inclusion of the legal description, in substantially the form attached to this Report of Findings and Conclusions as Attachment 3. DONE AND ENTERED this 16th day of May, 2000, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 16th day of May, 2000. COPIES FURNISHED: Jonathan T. Johnson, Esquire Carolyn S. Raepple, Esquire Hopping, Green, Sams & Smith, P.A. 123 South Calhoun Street Post Office Box 6526 Tallahassee, Florida 32314 Daniel Woodring, Esquire Florida Land and Water Adjudicatory Commission The Capitol, Suite 2105 Tallahassee, Florida 32399 Donna Arduin, Secretary Florida Land and Water Adjudicatory Commission The Capitol, Suite 1601 Tallahassee, Florida 32399 Barbara Leighty, Clerk Growth Management and Strategic Planning The Capitol, Suite 2105 Tallahassee, Florida 32399 Carol Licko, General Counsel Office of the Governor The Capitol, Suite 209 Tallahassee, Florida 32399-0001
The Issue The issue before the Florida Land and Water Adjudicatory Commission (“Commission”) in this proceeding is whether to grant the Petition of the Rivers Edge Community Development District and the Main Street Community Development District (“Petition”), to merge the boundaries of the Rivers Edge Community Development District (“Rivers Edge”) and the Main Street Community Development District (“Main Street”) (collectively, the “Districts” or “Petitioners”). Under Section 190.005(1)(d), Florida Statutes, the local public hearing was conducted for the purpose of taking testimony and public comment and receiving exhibits. This Report of the public hearing and the hearing record is made for the consideration of the Commission in its determination whether to adopt a rule to merge the Districts’ boundaries.
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.
The Issue The issue to be resolved in this proceeding is whether the petition of Debra, Inc., for the establishment of a community development district should be granted or denied. Petitioner contends that it meets all the criteria set out at Section 190.005(1)(c), Florida Statutes, for the formation of such a district and that the Land and Water Adjudicatory Commission should adopt a rule establishing the community development district requested in the petition. Orange County contends that the economic impact statement offered by Petitioner is inadequate to support the adoption of a rule, and that Petitioner has failed to meet the substantive requirements of the statute.
Findings Of Fact The Findings of Fact set out in Paragraph 1 of the Recommended Order are based upon the testimony of the witnesses Dowd and Beugnot; and upon Petitioner's Exhibits 4 and 11 through 14, and Orange County Exhibit 13. The Findings of Fact set out in Paragraph 2 are based upon the testimony of the witnesses Dowd, Brennan, Altman, and Batterson; and upon Petitioner's Exhibits 4, 15, 17, 23 and 24, and Orange County Exhibits 1 and 2. The Findings of Fact set out in Paragraph 3 are based upon the testimony of the witnesses Dowd, Nicholas, Moses and Batterson; and upon Petitioner's Exhibits 4, 9, 11, 12 and 13. The Findings of Fact set out in Paragraph 4 are based upon the testimony of the witness Dowd and upon Petitioner's Exhibit 4. The Findings of Fact set out in Paragraph 5 are based upon Petitioner's Exhibits 1 through 10. The Findings of Fact set out in Paragraph 6 are based upon the testimony of the witnesses Birnhart, Arthur, Hastings, Denton, and Harris; and upon City of Orlando Exhibit 1. The Findings of Fact set out in Paragraphs 7, 8 and 9 of the Recommended Order are based upon the testimony of the witnesses Moses, Nicholas, Curtis and Fishkind; and upon Petitioner's Exhibits 4, 16 and 17, and Orange County Exhibit 4. The Findings of Fact set out in Paragraph 10 are based upon the testimony of the witness Batterson and upon Petitioner's Exhibit 25. The Findings of Fact set out in Paragraph 11 are based upon the testimony of the witnesses Starnes and Altman, and upon Petitioner's Exhibits 21 and 26. The Findings of Fact set out in Paragraphs 12 and 13 of the Recommended Order are based upon the testimony of the witnesses Starnes, Altman, Hastings, Denton and Harris; and upon Joint Exhibit 1, Petitioner's Exhibit 31 and Orange County Exhibits 18, 19 and 20. The Findings of Fact set out in Paragraph 14 are based upon the testimony of the witnesses Dowd, Nicholas, Starnes, Altman, Batterson and Beugnot; and upon Petitioner's Exhibits 4, 11 through 14, 23 and 24, and Orange County Exhibit 1. The Findings of Fact set out in Paragraph 15 are based upon the testimony of the witnesses Dowd, Brennan, Nicholas, Fishkind, Currie, Hastings and Harris; and upon Petitioner's Exhibit 4 and Orange County Exhibits 7 through 15 and 18. The Findings of Fact set out in Paragraph 15 are based upon the testimony of the witnesses Dowd, Nicholas, Batterson and Altman; and upon Petitioner's Exhibits 4, 9, 28 and 30, and Orange County Exhibit 1. The Findings of Fact set out in Paragraph 17 are based upon the testimony of the witnesses Dowd, Brennan, Nicholas, Starnes, Batterson and Altman; and upon Petitioner's Exhibits 4, 11 and 12, and Orange County Exhibit 1. The Findings of Fact set out in Paragraph 15 are based upon the testimony of the witnesses Dowd, Brennan, Nicholas, Batterson and Altman; and upon Petitioner's Exhibits 4, 16 and 17. ENTERED this 2nd day of November, 1982, in Tallahassee, Florida. Appendix II STATE OF FLORIDA
The Issue The issue is whether to approve, approve with conditions, or deny Top Flight's development application approved by the Board on July 26, 2004. That decision approved a Flexible Development application to permit a reduction on the side (east) setback from 10 feet to 5.85 feet (to pavement) and an increase of building height from 35 feet to 59 feet from base flood elevation of 13 feet MSL (with height calculated to the midpoint of the roof slope) in association with the construction of 62 multi-family residential (attached) units at 1925 Edgewater Drive, Clearwater, Florida.
Findings Of Fact On September 25, 2003, Top Flight filed a Flexible Development Application for Level Two approval of a comprehensive infill for redevelopment of properties located on the southeast corner of the intersection of Sunnydale Drive and Edgewater Drive and just north of Sunset Pointe Road in Clearwater, Florida. A Comfort Suites motel is just north of the property, while a Chevron gasoline station sits on the south side. The property is located within the Tourist zoning district, which allows condominiums as a permitted use. The project, as originally proposed, involved the construction of a seventy-seven unit, seven-story (including covered parking), luxury condominium on a 2.572-acre tract of land now occupied by 32 motel units and 9 rental apartments with ancillary structures, which the developer intends to raze. The original application requested a deviation from the requirement in the Code that structures in the Tourist zoning district not exceed 35 feet in height. Under flexible development standards for that zoning district, however, a structure may be built to a maximum height of between 35 and 100 feet. (Although the City staff is authorized to approve requests for a deviation up to a maximum height of 50 feet without a hearing, Top Flight was requesting a flexible deviation to allow the building to be constructed an additional 25 feet, or to a height of 75 feet. This was still less than the 100 feet allowed under flexible development standards.) On December 24, 2003, Top Flight filed a second application which amended its earlier application by seeking a reduction of the front yard setback on Sunnydale Drive from 25 feet to 17 feet to allow the placement of balcony support columns within the setbacks. Without a deviation, the Code requires a minimum 25-foot front yard setback. The second application continued to seek a deviation in height standards to 75 feet. Because of staff concerns, on February 5, 2004, Top Flight filed a third Flexible Development application for the purpose of amending its earlier applications. The matter was placed on the agenda for the March 16, 2004, meeting of the Board. At the meeting on March 16, 2004, the City's staff recommended that certain changes in the design of the building be made. In order to make these suggested changes, Top Flight requested that the matter be continued to a later date. That request was granted, and the matter was placed on the agenda for the April 20, 2004, meeting. At the April 20, 2004, meeting, Board members again expressed concern over the height of the building, the lack of stair stepping, and the bulk, density, and height. Because of these concerns, Top Flight requested, and was granted, a 90-day continuance to address these concerns. Appellant, who was present at that meeting, did not object to this request. The matter was then placed on the agenda for May 18, 2004, but because of a notice problem, it was continued to the July 20, 2004, meeting. During the April 20, 2004, meeting, the Board allowed Top Flight's architect, Mr. Aude, and a City Planner III, Mr. Reynolds, to make their presentations prior to asking if any persons wished party status. (Section 4-206.D.3.b. provides that, as a preliminary matter, the chair of the Board shall "inquire of those attending the hearing if there is any person who wishes to seek party status.") Mr. Reynolds was not sworn, even though Section 4-206.D.3.d requires that all "witnesses shall be sworn." After the presentations by Mr. Aude and Mr. Reynolds, Appellant was given party status. Therefore, Appellant could not cross-examine the two witnesses immediately after they testified. However, Appellant did not request the right to examine those witnesses nor did she lodge an objection to the procedure followed by the Board. Also, assuming that Mr. Aude and Mr. Reynolds were treated as experts by the Board, there is no indication that either witness submitted a resume at the hearing. (Section 4-206.D.5.a. requires that "[a]ny expert witness testifying shall submit a resume for the record before or during the public hearing.") However, no objection to this error in procedure was made by any person, including Appellant. Based on the concerns of staff and Board members at the April 20, 2004, meeting, and to accommodate objections lodged by nearby residents, Top Flight modified its site plan by reducing the height of the building from 75 to 59 feet (which in turn reduced the height of the building from six stories over parking to four) and increasing the number of parking spaces. Other changes during the lengthy review process included decreasing the side (rather than the front) setback from a minimum of 10 feet to 5.85 feet and preserving two large oak trees on the property. The proposed height was significantly less than the maximum allowed height in the Tourist district (100 feet), and the proposed density of 59 units was also considerably less than the maximum allowed density on the property (30 units per acre, or a total of 77 on the 2.57-acre tract). The application, as amended, was presented in this form at the July 20 meeting. Documents supporting the various changes were filed by Mr. Aude in February, March, April, May, and June 2004, and are a part of the record. At the hearing on July 20, 2004, Mr. Reynolds and Mr. Aude again testified in support of the application, as amended. The staff report prepared by Mr. Reynolds was made a part of the record. (Section 4-206.G provides that the record shall consist of, among other things, "all applications, exhibits and papers submitted in any proceeding.") The report found that "all applicable Code requirements and criteria including but not limited to General Applicability criteria (Section 3-913) and the flexibility criteria for attached units (Section 2-803.B) have been met." The Board accepted this evidence as the most persuasive on the issue. The Board further accepted the testimony of Mr. Aude, and a determination in the staff report, that the project would be compatible with the character of the neighborhood. In doing so, it implicitly rejected the testimony of Appellant, and other individuals, that the height of the building was inconsistent with the character of the neighborhood. Finally, the Board accepted Mr. Reynolds' recommendation that the application should be approved, subject to eighteen conditions. The vote was 4-2 for approval. During the July 20, 2004, meeting, Mr. Reynolds was cross-examined by another party, Mr. Falk. Although given the right to do so, Appellant did not question the witness. All parties, including Appellant, were given the opportunity to cross-examine Mr. Aude, but none sought to do so. The parties were also given the opportunity to ask questions of Top Flight's counsel, who gave argument (but not evidence) on behalf of his client. Although members of the public, and Appellant, were limited in the amount of time allowed for statements to three minutes, all persons who gave testimony or made statements that day, including Appellees, were urged by the chair to limit their remarks. Finally, Top Flight's counsel was allowed to make a closing argument at the meeting, at which time he used a demonstrative exhibit (a "chart" containing the names of area residents who supported the project), which was shown to Board members. (The same information can be found in the City files, which are a part of this record and contain correspondence from numerous area residents, some supporting, and others opposing, the project.) Although Appellant was not shown a copy of the document, the record does not show that she objected to the use of a demonstrative exhibit, or that she requested to see a copy. Mr. J. B. Johnson was appointed to the Board sometime after the April 20, 2004, meeting. At the July 20, 2004, meeting, he made the following statement concerning Top Flight's application: I can't speak for everybody here. Some people have lived here a short period of time. In view of every word that I have heard, every word that I have read, and I've been keeping up with this for several months because several months ago I had telephone calls from your area. I don't know how you could satisfy everybody. It's impossible, but I do know this, this is a great project. One that would be good for the City. One for the area, good for the area and I will support this. Appellant has not cited to any evidence showing that Mr. Johnson did not review the record of the prior meetings or the application file before he cast his vote. Further, Appellant did not object to Mr. Johnson's participation. On July 26, 2004, the Board entered its DO memorializing the action taken on July 20, 2004, which approved Top Flight's application. In the DO, the Board made the following findings/conclusions supporting its decision: The proposal complies with the Flexible Development criteria per Section 2-803.B The proposal is in compliance with other standards in the Code including the General Applicability Criteria per Section 3-913. The development is compatible with the surrounding area and will enhance other redevelopment efforts. The decision also included 18 Conditions of Approval and a requirement that an application for a building permit be made no later than July 20, 2005. On August 3, 2004, Appellant filed her Appeal Application seeking a review of the Board's decision. The Appeal Application set out two relevant grounds (without any further specificity): that the Board's decision was not supported by the evidence, and that the Board departed from the essential requirements of the law. On August 19, 2004, the City referred the Appeal Application to DOAH. The specific grounds were not disclosed until Appellant presented oral argument and filed her Proposed Final Order.1
