Findings Of Fact Petitioner is an existing special tax district, created on August 18, 1975, by Broward County Ordinance 75-22. (See Exhibit "A"). A legal description of the property which comprises the ITSMTD, and which would comprise the community development district, is contained within Section 1(a) of Ordinance 75-22 (Exhibit "A"). On December 22, 1980, the Board of Supervisors of the ITSMTD adopted a resolution (Exhibit "B") authorizing and directing the proper district officials to file a Petition with the Florida Land and Water Adjudicatory Commission to reestablish the district as a community development district pursuant to Chapter 190, Florida Statutes. The ITSMTD filed its Petition to reestablish the district as a community development district on January 22, 1981. The Petition named five (5) persons to serve as initial members of the Board of Supervisors of the proposed new district. These persons, who presently constitute the Board of Supervisors of the existing district, are Norman A. Cortese, Ellen Mills Gibbs, F. A. Mapleton, Robert E. Huebner and Edward F. Kosnick. The Petition recites that the proposed name of the new district will be the Indian Trace Community Development District, and that the District boundaries will remain the same as the existing special tax district. By letter dated January 29, 1981, the Florida Land and Water Adjudicatory Commission requested the assignment of a Hearing Officer form the Division of Administrative Hearings to conduct the necessary public hearing. The ITSMTD has jurisdiction over approximately 13,000 contiguous acres which lie within the unincorporated area of Broward County, Florida. A map showing the particular location of the property within the jurisdiction of the ITSMTD was presented and received into evidence. (Exhibit "C"). Petitioner presented the following additional Exhibits which were received into evidence: Development orders adopted June 27, 1978 and August 17, 1979 by the Broward County Commission. (Exhibit "D"). The development orders were adopted by the Broward County Commission pursuant to the development of regional impact permitting processes established by Chapter 380, Florida Statutes. These development orders govern or affect development of all land within the ITSMTD. A map which designates 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 Broward County Comprehensive Plan. (Exhibit "E"). A proposed timetable for constructing district services and the estimated cost of constructing those services. (Exhibit "F"). An economic impact statement which, based upon available data, estimates the economic impact on all persons directly affected by the proposed action and which sets forth in detail the data and method used in making the estimate. (Exhibit "G"). Proof of publication that public notice of the hearing conducted on March 25, 1981 was published once a week for four (4) consecutive weeks immediately prior to the hearing in the Fort Lauderdale News. (Exhibit "H"). The Future Land Use Plan Element of the Broward County comprehensive Plan which has been adopted by Broward County in compliance with the Local Government Comprehensive Planning Act of 1975. (Exhibit "I"). An agreement between ITSMTD, Arvida Corporation, and the City of Sunrise providing for the purchase of both water and sewer services by the ITSMTD from the City of Sunrise and committing the ITSMTD to make use of a Regional 201 Sewer Plan, when such plan is operational and capable of serving the district. ("Exhibit 'J'"). The ITSMTD was created by Broward County to provide certain services such as water, water management and control, sewers, and roads for an area of land consisting of approximately 13,000 acres. Included within this area of land is the 10,000 acre new community to be developed by Arvida Corporation known as Weston. The new community is a development of regional impact and is subject to two development orders adopted by Broward County (Exhibit "D"). The Weston development is a low density, residential new community which also includes industrial and commercial uses. It is presently planned to be developed over a 25-30 year period of time and will eventually contain 20,500 dwelling units and will have a population of 40,000. The two development orders grant master development approval to the Weston community and grant incremental development approval to the first two increments (approximately 7,000 acres). the third increment is designated for future incremental approval (approximately 3,000 acres presently planned for industrial, commercial, and airport uses). The 7,000 acres of land within Weston which comprise increments 1 and 2 pursuant to the aforementioned development orders have been zoned as a planned unit development. The zoning classification allows the construction of 18,000 dwelling units and the development of 500 acres of business-commercial land. To date, three (3) plats have been approved by Broward County within the Weston community. The Weston development and all proposed uses within the ITSMTD are consistent with the Future Land Use Element of the Comprehensive Plan for the unincorporated areas of Broward County, Florida, including policies and requirements relating to trafficways, open space and parks, and provision for housing (Exhibits "E" and "I"). The area of land within the proposed district is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developed as one functional, interrelated community for the following reasons: The area of land within the ITSMTD is composed of approximately 13,000 acres. 10,000 of the 13,000 acres constitute a development of regional impact, the develop- ment which is subject to two development orders (Exhibit "D"). 7,000 acres of the development of regional impact have been zoned by Broward County as a Planned Unit Development. (Exhibit "D"). These land control devices plan and provide for the development of this area in great detail. The development orders require phasing of the development and provide for the provision of parks, civic sites, schools, roads, and major land uses within the area. (See specifically Article II, A, D, and E of 1978 development order and Sections 1 and 2 of the 1979 development order.) The area of land within the proposed district is subject to and within the jurisdiction of the ITSMTD. The ITSMTD presently has the responsibility for providing water management, water and sewer services, and the construction of trafficways and certain other improvements. the ITSMTD was created for the specific purpose of aiding in the development of the area of land within the proposed district. In adopting Ordinance 75-22, the Broward County Commission observed: "WHEREAS, it is found by the County Commission that to promote the economic, orderly, and planned development of certain land and to best serve the welfare and convenience of the public, a Special Municipal Tax District of Broward County, Florida, should be established pursuant to the Charter of Broward County, Florida." The very location of the area of land within the proposed district and the major boundaries of that area dictate that the area be developed as a self-contained, functional interrelated community. (See Exhibits "C" and "D"). The area within the proposed district is compact and sufficiently contiguous to be developable as an interrelated community, as evidenced by the existence of the ITSMTD, the development orders, and the planned unit development zoning classification. A community development district is the best alternative available for delivering community development services and facilities to the area of land that will be served by the district for the following reasons: The finding supporting creation of the ITSMTD by the Broward County Commission in 1975 that a tax district is necessary for the area to be developed in an economic, orderly, and planned way remains true today. A community development district functioning pursuant to Chapter 190, Florida Statutes, would have the following advantages over the ITSMTD: Chapter 190, Florida Statutes, provides a clear and comprehensive charter for operating the district. The reestablishment of the ITSMTD as a community development district will conform the district to uniform state policy regarding the formation and operation of independent develop- ment districts, and will promote a strengthened state new community policy. A community development district has broad, comprehensive, and flexible powers which will better serve the area of land within the proposed district during the period of its development. The area of land to be served by the district will develop over a 20 to 30 year period of time and the broad flexible powers contained within Chapter 190, Florida Statutes, will give the community development district the ability to meet the changing needs and desires of the new community. The special powers contained within Section 190.012, Florida Statutes, will enable the district to provide a broader range of services to meet the needs of the developing community. Specifically, the Indian Trace Community Development District will be authorized to provide parks and facilities for indoor and outdoor recreational, cultural, and educational uses; fire protection and control services, including fire stations, water mains, fire trucks, and other vehicles and equipment; and to construct security and school buildings and related structures for use in the security and educational system, when authorized by proper governmental authority. The economic impact statement (Exhibit "G") points out several reasons why a community development district would be the best alternative to deliver community development services. Among the important points contained within the economic impact statement are the following: The Environmental Land Management Study Committee recommended implementation of a new communities policy in order to encourage well planned quality developments. Chapter 190, Florida Statutes, has implemented the recommendations of the Committee and has established that new community policy. The State of Florida has determined that Community Development Districts are a better alternative to provide infrastructure improvements than are "paper cities" The reestablishment of the ITSMTD as a Community Development District would avoid municipal formation as a means of infrastructure development. The reestablishment of the ITSMTD as a Community Development District will serve to implement the goals of the Broward County Land Use Plan. The Broward County Land Use Plan contains the following goals: It encourages planned communities with mixed uses, both residential and nonresidential; It determines that growth should be phased with the provision of community services and finds that urban growth should not be permitted in areas where the basic minimum required community services and facilities have not been provided or scheduled for capital improvement either by public or private means; It establishes that the capital costs for the provision and extension of major services, facilities, and transportation networks to benefit new residential or commercial developments should be imposed primarily on those who benefit and not on the existing resident population. The community development services which would be provided to the area of land within the proposed district would not be incompatible with the capacity and uses of existing local and regional development services and facilities for the following reasons: There are no existing regional services of facilities for the area of Broward County within the proposed district. Further, Broward County has neither the plans, nor the capability to provide services and facilities to the area. There are no major trunk water mains or sewer interceptors or outfalls in existence in the area of land within the proposed district. The ITSMTD was created by Broward county to provide services and facilities to service the area of land within the proposed district. In addition, the application for development orders are based, recognized that the ITSMTD would be used to provide infrastructure improvements within the area. The trafficways which have been designed to serve the area within the proposed district and which are required to be built in accordance with the development orders are in accordance with the Broward County Trafficways Plan, which is incorporated by reference in the county future land use element. The ITSMTD is making use of existing local water and sewer facilities. It has entered into a contract with the City of Sunrise to purchase both water and sewer services from the City of Sunrise. (Exhibit "J"). In addition, that agreement commits the ITSMTD to make use of a regional 201 sewer facility when such facility is operational and capable of serving the district. The testimony and documentary evidence establish the following: All statements contained in the Petition are true and correct. The creation of the district would not be inconsistent with any applicable element of the Broward County Comprehensive Plan. The area of land that will be served by the district is amenable to separate district government. On March 24, 1981, the Broward County Board of County Commissioners voted to support ITSMTD's petition to reestablish the district as a community development district.
Recommendation Based upon the Findings of Fact and Conclusions of Law hereby submitted, the Hearing Officer recommends that the Florida Land and Water Adjudicatory Commission grant the Petition of the ITSMTD and adopt a rule which will reestablish the ITSMTD as the Indian Trace Community Development District. DONE and ENTERED this 10th day of April, 1981, in Tallahassee, Leon County, Florida. WILLIAM E. WILLIAMS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings This 10th day of April, 1981. COPIES FURNISHED: Robert M. Rhodes, Esquire Messer, Rhodes, Vickers & Hart Post Office Box 1876 Tallahassee, Florida 32302 David W. Wilcox, Esquire Office of the Governor Room 209, The Capitol Tallahassee, Florida 32301 Philip Shailer, Esquire 540 N. W. Fourth Street Suite B Ft. Lauderdale, Florida 33301 Donald R. Hall, Esquire 540 N.W. Fourth Street Ft. Lauderdale, Florida 33301
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
The Issue The sole issue to be addressed is whether the Petition to establish the Double Branch Community Development District meets the applicable criteria set forth in Chapter 190, Florida Statutes, and Chapter 42-1, Florida Administrative Code.
Findings Of Fact Overview The Petitioner is seeking the adoption of a rule by the Commission to establish a community development district proposed to consist of approximately 1,203 acres located within the boundaries of unincorporated Clay County. The suggested name for the proposed District is the Double Branch Community Development District. The Petition notes that the proposed District covers approximately 1,203 acres. Hinson testified that the approximate acreage of the proposed District remains 1,203 acres; however, the metes and bounds description contained in the Petition has been revised since the time of the filing of the Petition. The revised metes and bounds description was, without objection, admitted into evidence. There are no out-parcels within the area to be included in the proposed 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. The sole purpose of this proceeding was to consider the establishment of the District as proposed by the Petitioner. Summary of Evidence and Testimony Whether all statements contained within the Petition have been found to be true and correct. Petitioner's Composite Exhibit A was identified for the record as a copy of the Petition and its exhibits as filed with the Commission. Hinson testified that he had reviewed the contents of the Petition and approved its findings. Hinson also generally described the exhibits to the Petition. Hinson testified that the Petition and its exhibits, as modified by the revised metes and bounds description admitted into evidence as Exhibit B, are true and correct to the best of his knowledge. Miller testified that he had assisted in the preparation of portions of the Petition and its exhibits. Miller also generally described several exhibits to the Petition which he or his office had prepared. Miller testified that the exhibits to the Petition, prepared by England, Thims & Miller, Inc., and admitted into evidence, were true and correct to the best of his knowledge. Walters testified that he had prepared Exhibit 11 to the Petition, the Statement of Estimated Regulatory Costs (SERC). Walters also testified that Statement of Estimated Regulatory Costs submitted as Exhibit 11 to Petitioner's Composite Exhibit A was true and correct to the best of his knowledge. Hinson also testified that the consent by the owner of the lands to be included within the proposed District is still in full force and effect. The Petition included written consent to establish the District from the owners of one hundred percent (100%) of the real property located within the lands to be included in the proposed District. There have been no sales of these lands thus far. Based upon the foregoing, the Petition and its exhibits are 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. Walters reviewed the proposed District in light of the requirements of the State Comprehensive Plan, Chapter 187, Florida Statutes. Walters also reviewed the proposed District in light of the requirements of the Clay County Comprehensive Plan. From a planning and economic perspective, four (4) subjects of the State Comprehensive Plan apply directly to the establishment of the proposed District as do the policies supporting those subjects. Subject 16, Land Use, 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 ability to provide services and facilities to the population in the designated growth area and help provide infrastructure in an area which can accommodate development within Clay County in a fiscally responsible manner. Subject 18, Public Facilities, provides that the State shall protect substantial investments in public facilities and plan for and finance new facilities to serve residents in a timely, orderly, and efficient manner. The proposed 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 at no capital cost to Clay County. Subject 21, Governmental Efficiency, 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 finance and deliver those public services and facilities as needed by the District's residents and property owners. The proposed District will be established under uniform general law standards as specified in Chapter 190, Florida Statutes. Creating a District does not burden the general taxpayer with the costs for the services or facilities inside the proposed District. The proposed District will require no subsidies from the state or its citizens. Subject 26, Plan Implementation, provides that systematic planning capabilities be integrated into all levels of government, with emphasis on improving intergovernmental coordination. The proposed District is consistent with this element of the State Comprehensive Plan because the proposed District, by and through a separate and distinct Board of Supervisors, 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. Additionally, 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. Finally, Section 189.415(2), Florida Statutes, requires the District to file and update public facilities reports with the county or city, which they 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. The Clay County Comprehensive Plan contains thirteen (13) elements which are supported by numerous goals and objectives. Walters testified that portions of three (3) of these elements are relevant when determining whether or not the proposed District is inconsistent with the local comprehensive plan. There are Goals and Objectives within the Future Land Use Element which are targeted to effectively manage growth in areas designated to accommodate future development and provide services in a cost-efficient manner. The proposed District is within the County's Planned Urban Service Area, and is part of a Chapter 380, Florida Statutes, development order vested in the County Land Use Plan. The proposed District is a recognized vehicle to provide the necessary services and facilities to the lands within the boundaries of the proposed District. The goal of the Intergovernmental Coordination Element is to establish processes among various governmental, public and private entities to coordinate development activities, preservation of the quality of life, and the efficient use of available resources. The proposed District will assist in the coordination process by providing and maintaining community infrastructure in a way that is not inconsistent with the plans and activities of related public and private agencies. The Capital Improvements Element is intended to provide necessary infrastructure in a timely and orderly manner. The proposed District will expand the areas that enjoy infrastructure in a manner consistent with the Clay County 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. The Florida Department of Community Affairs (DCA) reviewed the Petition for compliance with its various programs and responsibilities. DCA also discussed the contents of the Petition with the Clay County Planning Department and the Northeast Florida Regional Planning Council. After conducting its own review and conferring with local governmental entities, DCA concluded that it had no objection to the establishment of the Double Branch Community Development District. 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. Testimony on this criterion was provided by Miller and Walters. The lands that comprise the proposed District will consist of approximately 1,203 acres, located within the borders of unincorporated Clay County. All of the land in the proposed District is part of a planned community included in the Villages of Argyle Forest Development of Regional Impact (DRI). 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 1,203 acres. From a planning perspective, this is a sufficient size to accommodate the basic infrastructure facilities and services typical of a functionally interrelated community. The proposed facilities and services require adequate planning, design, financing, construction, and maintenance to provide the community with appropriate infrastructure. 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 in a long- term, cost-efficient manner. The Petitioner is developing all of the lands within the District as a single master-planned community. All of these lands are governed by the Villages of Argyle Forest Development of Regional Impact Development Order issued by Clay County. 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. Whether the proposed district is the best alternative available for delivering community development services and facilities to the area that will be served by the proposed district. 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 through the issuance of tax exempt bonds and the debt retired by "non-ad valorem" or "special" assessments on benefited property within the proposed District. Expenses for operations and maintenance are expected to be paid through maintenance 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 use of the District were identified. First, the County 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 property owners' association (POA) or a home owners' association (HOA). The District is preferable to the available alternatives at focusing attention on when, 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. 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. 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 to the land included in the proposed District because it is a long-term, stable, perpetual entity capable of funding, constructing, and in some cases, 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 area that will be served by the District. Whether the community development services and facilities of the proposed district will be incompatible with the capacity and uses of existing local and regional community development services and facilities. 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. Whether the area that will be served by the district is amenable to separate special-district government. 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 community to be included in the District has need for basic infrastructure systems to be provided. From planning, engineering, economic and management perspectives, the area that will be served by the amended District is amenable to separate special-district government. Other requirements imposed by statute or rule. 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. Elements of the Petition The Commission has certified that the Petition to Establish the Double Branch Community Development District meets all of the requirements of Section 190.005(1)(a), Florida Statutes. Statement of Estimated Regulatory Costs (SERC) 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 County and its citizens, the City and its citizens, the 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 are difficult to quantify, but 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 in the District by new residents 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 CDD will include the option of having 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. Section 190.005(1)(a), Florida Statutes, requires the Petition to include a SERC which meets the requirements of Section 120.541, Florida Statutes. The Petition contains a SERC. It meets the requirements of Section 120.541, Florida Statutes. Other Requirements Petitioner has complied with the provisions of Section 190.005(1)(b)1, Florida Statutes, in that Clay 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 Clay County for four consecutive weeks prior to the hearing. The notice was published in The County Line section of The Florida Times-Union, a newspaper of general circulation in Clay County for four consecutive weeks, on February 13, 2002, February 20, 2002, February 27, 2002, and March 6, 2002. Clay County Support for Establishment Pursuant to the requirements of Section 190.005(1)(b), Florida Statutes, Petitioner filed a copy of the Petition and the $15,000 filing fee with Clay County prior to filing the Petition with the Commission. As permitted by Section 190.005(1)(c), Florida Statutes, the Clay County Commission held a public hearing on February 26, 2002, to consider the establishment of the Double Branch Community Development District. At the conclusion of its public hearing on February 26, 2002, the Clay County Commission adopted Resolution No. 01/02-42, expressing support for the Commission to promulgate a rule establishing the Double Branch Community Development District. The Clay County Resolution specifically found that all six (6) of the statutory factors for evaluating the establishment of community development districts found in Section 190.005(1)(e), Florida Statutes, had been met by the Petition in this matter.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Governor and Cabinet, sitting as the Florida Land and Water Adjudicatory Commission, pursuant to Chapters 190 and 120, Florida Statutes, and Chapter 42-1, Florida Administrative Code, establish the Double Branch Community Development District as requested by the Petitioner by formal adoption of the proposed rule attached to this Report as Exhibit 3. DONE AND ENTERED this 1st day of April, 2002, in Tallahassee, Leon County, Florida. CHARLES A. STAMPELOS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of April, 2002. Exhibit 1 Petitioner's Witnesses at Public Hearing Donald P. Hinson OakLeaf Plantation, L.L.C 3020 Hartley Road, Suite 100 Jacksonville, Florida 32257 Douglas C. Miller, P.E. England Thims & Miller, Inc. 14775 St. Augustine Road Jacksonville, Florida 32258 Gary R. Walters Gary Walters and Associates 12 Crooked Tree Trail Ormond Beach, Florida 32174 Exhibit 2 List of Petitioner's Exhibits Letter Description Composite Exhibit (Petition with twelve (12) exhibits) B-1 Pre-filed Testimony of Donald P. Hinson (11 pages) Revised legal description for lands to be included within the boundaries of the proposed District Commission Notice of Receipt of Petition Letter to Division of Administrative Hearings from Commission Letter to Department of Community Affairs from Commission Correspondence from Department of Community Affairs to the Commission Clay County Resolution 01/02-42 Development Order (No. 99-45) for Villages of Argyle Forest Development of Regional Impact Florida Times-Union Proof of Publication of Notice of Local Public Hearing Pre-filed Testimony of Douglas C. Miller, P.E. (8 pages) Pre-filed Testimony of Gary R. Walters (21 pages) Chapter 187, Florida Statutes (23 pages) Exhibit 3 Text of Proposed Rule CHAPTER 42___-1 DOUBLE BRANCH COMMUNITY DEVELOPMENT DISTRICT 42___-1.001 Establishment. 42___-1.002 Boundary. 42___-1.003 Supervisors. 42____-1.001 Creation. The Double Branch Community Development District is hereby established. Specific Authority 120.53(1), 190.005 FS. Law Implemented 190.005 FS. History-New 42____-1.002 Boundary. The boundaries of the District are as follows: A parcel of land lying in the being part of Sections 4, 5, 6, 8 and 9, Township 4 South, Range 25 East, Clay County, Florida, being more particularly described as follows: Commencing at the Northwest corner of said Section 4, also being the Northeast corner of said Section 5; thence, on the West line of said Section 4, South 00 degrees 10 minutes 14 seconds East, 5.00 feet to the point of beginning; thence, parallel with and 5.0 feet South from the North line of said Section 4, also being the line dividing Clay County and Duval County, and the North line of said Township 4 South, North 89 degrees 50 minutes 04 seconds East, 2039.14 feet to the West line of Deerfield Pointe, as recorded in Plat Book 22, Pages 62 through 65, of the public records of said Clay County; thence, on said West line, South 00 degrees 20 minutes 13 seconds West, 1354.17 feet to the South line of said Deerfield Pointe; thence, on said South line, North 89 degrees 51 minutes 50 seconds East, 675.62 feet to the West line of Spencer’s Crossing Unit 1, as recorded in Plat Book 18, Pages 18 through 22, of said public records; thence, on said West line, the West line of Spencer’s Crossing Unit 5, as recorded in Plat Book 27, Pages 19 through 22, the West line of Sweetbriar, as recorded in Plat Book 32, Pages 61 through 64, the West line of lands recorded in Official Records Book 1603, Page 1212, and the West line of a 20 foot right-of-way recorded in Official Records Book 1603, Page 1220, all being recorded in the public records of said county, said line also being the East line of the Southeast quarter of the Northwest quarter and the Southwest quarter of said Section 4, South 00 degrees 31 minutes 32 seconds West, 4050.46 feet to the South line of said Section 4; thence, on said South line, North 89 degrees 51 minutes 57 seconds West, 662.62 feet to the West line of lands described in Official Records Book 1603, page 1212, of said public records, also being the East line of the West half of the Northeast quarter of the Northwest quarter of said Section 9; thence, on last said line, South 00 degrees 11 minutes 52 seconds East, 1388.96 feet to the South line of said Northeast quarter of the Northwest quarter of said Section 9; thence, on said South line, South 89 degrees 09 minutes 05 seconds West, 662.36 feet to the East line of the Southwest quarter of the Northwest quarter of said Section 9; thence, on said East line, South 00 degrees 21 minutes 15 seconds East, 699.95 feet to the South line of the North half of the Southwest quarter of the Northwest quarter of said Section 9; thence, on said South line, South 88 degrees 36 minutes 38 seconds West, 1327.66 feet to the West line of said Section 9, also being the East line of said Section 8; thence, on the South line of the North half of the Southeast quarter of the Northeast quarter of said Section 8, North 88 degrees 34 minutes 52 seconds West, 1335.51 feet to the East line of the Southwest quarter of the Northeast quarter of said Section 8; thence, on said East line, South 00 degrees 10 minutes 48 seconds East, 700.93 feet to the South line of said Southwest quarter of the Northeast quarter of Section 8; thence, on said South line, North 88 degrees 09 minutes 42 seconds West, 1156 feet, more or less, to the centerline of the North prong of Double Branch; thence, in a Northwesterly direction, by and along said centerline and following the meanderings thereof, 12,053 feet, more or less, to a point bearing South 89 degrees 49 minutes 27 seconds West from the point of beginning; thence, parallel with and 5.0 feet South from the North line of said Section 5, North 89 degrees 49 minutes 27 seconds East, 5043 feet, more or less, to the point of beginning. said parcel containing 1203 acres, more or less. Specific Authority 120.53(1), 190.005 FS. Law Implemented 190.004, 190.005 FS. History-New 42____-1.003 Supervisors. The following five persons are designed as the initial members of the Board of Supervisors: Donald P. Hinson, James T. O’Riley, Donald E. Brown, Charles W. Arnold, III, and Gary F. Hannon. Specific Authority 120.53(1), 190.005 FS. Law Implemented 190.006(1) FS. History - New COPIES FURNISHED: Cheryl G. Stuart, Esquire Jennifer A. Tschetter, Esquire Hopping, Green & Sams, P.A. 123 South Calhoun Street Post Office Box 6526 Tallahassee, Florida 32314 Charles Canady, General Counsel Florida Land and Water Adjudicatory Commission Office of the Governor Department of Legal Affairs The Capitol, Room 209 Tallahassee, Florida 32399 Donna Arduin, Secretary Florida Land and Water Adjudicatory Commission Office of the Governor The Capitol, Room 2105 Tallahassee, Florida 32399 Barbara Leighty, Clerk Growth Management and Strategic Planning The Capitol, Room 2105 Tallahassee, Florida 32399
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
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.
