The Issue The issue before the Florida Land and Water Adjudicatory Commission (FLWAC) is whether to grant the Petition to Establish the Madeira Community Development District (Petition). The local public hearing was for the purpose of gathering information in anticipation of quasi-legislative rulemaking by FLWAC.
The Issue The issue before the Florida Land and Water Adjudicatory Commission (FLWAC) in this proceeding is whether the Petition to Establish the Three Creeks Community Development District (Petition) meets the criteria set forth in Chapter 190, Florida Statutes, and Chapter 42-1, Florida Administrative Code. The local public hearing was for the purpose of gathering information in anticipation of quasi-legislative rulemaking by FLWAC.
Findings Of Fact Respondent, Mid-Keys Development Corporation (Mid-Keys), is the owner of Lot 98, Stirrup Key Subdivision, Monroe County, Florida; a property located on Florida Bay, a natural waterbody, and within that part of Monroe County designated as an area of Critical State Concern. On September 12, l989, Monroe County issued to Mid-Keys building permit No. 8920001017 to construct a single-family home on Lot 98. As permitted, the home would be constructed 20 feet landward of the top of a dike or berm which runs along the rear of the property, as well as approximately 20 feet landward of a mangrove fringe which parallels the shoreline of the property. 1/ Petitioner, Department of Community Affairs (Department) pursuant to Section 380.07, Florida Statutes, appealed the issuance of the subject permit, and contends that, as permitted, construction of the home would violate Monroe County's comprehensive plan and land development regulations. Succinctly, the Department contends that under existent regulations the proposed home must be set back 50 feet from the landward limit of the mangrove fringe. Central to the dispute in this case are the provisions of Section 9.5- 286, Monroe County Land Development Regulations (MCLDR) which provide: Sec. 9.5-286. Shoreline setback. All buildings and structures, other than docks, utility pilings, walkways, non- enclosed gazebos and fences and similar structures shall be set back twenty (20) feet from the mean high tide lines of man-made waterbodies and/or lawfully altered shorelines of natural waterbodies. All buildings other than docks, utility pilings, walkways, non-enclosed gazebos and fences and similar structures shall be set back fifty (50) feet from natural waterbodies with unaltered shorelines or unlawfully altered shorelines, measured from the landward limit of mangroves, if any, and where mangroves do not exist from the mean high tide line. (Emphasis added) The regulations do not, however, expressly define the location of the shoreline for purposes of assessing whether it is altered or unaltered, and thereupon rests the basis for the parties' dispute. In this regard, Mid-Keys contends that the development of Stirrup Key legally altered the shoreline, which it suggests a extends to the higher high tide line, and the Department contends that such development did not alter the shoreline, which it a suggests extends to the mean high tide line. The creation of Stirrup Key Subdivision. Stirrup Key is an island in Florida Bay, a natural waterbody, comprising approximately 50 acres. Currently the key is platted as Stirrup Key Subdivision; a residential community which is attached to Key Vaca by a short causeway. The character of Stirrup Key as it exists today is, however, decidedly different from what existed less than two decades ago. In March 1972, when Stirrup Key was purchased by William T. Mills, it was a low-lying island with an average elevation of two feet or less mean high water (MHW) and it was virtually untouched by man. Portions of its shoreline were covered with red mangroves, followed upland by transitional a species such as black mangrove, white mangrove, and buttonwood, and portions of its higher elevations contained some hammock. Following his acquisition of Stirrup Key in 1972, Mr. Mills, consistent with regulations existent at that time, sought and obtained the approval of all governmental agencies necessary to develop the key as it currently exists. Pertinent to this case, the Florida Department of Pollution Control (currently known as the Department of Environmental Regulation) on June 24, 1974, issued to Mr. Mills a dredge and fill permit and water quality certification to excavate on Stirrup Key an upland lagoon to minus 5.0 feet mean low water, together with an access channel, with the spoil from the excavation to be placed on upland, landward of mean high water. As a condition, the permit provided that "[n]o spoil below MHW but in upland spoil area diked along shoreline" and "[m]angrove fringe along shoreline will be preserved." Notably, the plans which were submitted to the Department of Pollution Control by Mr. Mills, and which were attached to the permit, established the boundary of the island at the mean high water line and designated the mean high water line as the shoreline. Also pertinent to this case, the State of Florida, Board of Trustees of the Internal Improvement Trust Fund, on July 22, 1974, issued to Mr. Mills a permit to dredge 72,265 cubic yards of material (1,265 cubic yards from sovereignty submerged land) from a proposed upland boat basin, together with an access channel and two circulation channels, with the spoil to be deposited on the uplands, and to construct a dike around the entire perimeter of Stirrup Key above the mean high water line. The Trustee's permit also provided that "[n]o spoil shall be deposited below mean high water but in upland spoil area diked along shoreline" and "[t]he mangrove fringe along shoreline will be preserved." Consistent with the foregoing permits, Mr. Mills undertook the development of Stirrup Key. In so doing, he constructed a dike around the entire perimeter of the island, with the toe of the dike landward of MHW, removed the transitional vegetation landward of MHW, and filled the area landward of MHW with limestone fill to an elevation of 4 to 9 feet MHW. Also consistent with his permits, Mr. Mills preserved the mangrove fringe along the shoreline. 2/ While the wetlands system of Stirrup Key has been altered by the removal of the upland transitional vegetation and the filling of the area lying landward of MHW, the function of the shoreline mangrove fringe has not been altered by the development of the island. That fringe, which extends approximately 3,000 feet along the shoreline and which measures from 60 to 100 feet in width at Lot 98, continues to provide, among other things, wildlife habitat for numerous species of birds; fisheries habitat for food, cover and refuge; shoreline stabilization; and storm surge abatement. In 1976 the plat of Stirrup Key Subdivision, which encompassed all the lands of Stirrup Key, was approved by Monroe a County and filed of record. That plat, as well as the survey of Lot 98, demonstrate that the boundaries of Stirrup Key follow the mean high water line. The Monroe County comprehensive plan and land development regulations. The Monroe County comprehensive plan, effective September 15, 1986, provides: 11. FUTURE LAND USE ELEMENT Sec. 2-101. Introduction. A fundamental component of any comprehensive land management program is a series of discrete policy statements by which individual land use decisions will be judged in the future. Indeed, a basic tenet of contemporary land management theory and the Local Government Comprehensive Planning Act, Sections 163.3161 et seq., Fla. Stat. is that land use decisions shall be consistent with a comprehensive plan. After a comprehensive plan or element or portion thereof has been adopted in conformity with this act, all development undertaken by, and all actions taken in regard to development orders by, governmental agencies in regard to land covered by such plan or element shall be consistent with such plan or element as adopted. All land development regulations enacted or amended shall be consistent with the adopted comprehensive plan or element or portion thereof. 163.3194(1), Fla. Stat. The Comprehensive Plan for Monroe County contemplates that the land use policy element and implementing regulations will be closely coordinated and designed to ensure fair and consistent land use decision-making. Incorporating the policy statements into the implementing regulations will go a long way toward overcoming many of the due process deficiencies that plague land use decision- making. Under this Plan, a request for development approval will be judged, not on the basis of an intuitive perception of the County's needs, the identity of the applicant, or the clamor of opponents, but on the adopted policies set out in the Plan. If the requested approval is inconsistent with these adopted policies, it should be denied, or the policies should be changed through the established procedure for amendments. If the proposed development is consistent with the Plan, it should be approved. Linking individual decisions to adopted policies will help to bring consistency, fairness, and a comprehensiveness to the development review process. The purpose of this element of the Monroe County Comprehensive Plan is to establish official land use policies that will guide future land use decisions in the County . . . . Sec. 2-102. General. A. OBJECTIVES 1. To establish a land use management system that protects the natural environment of Monroe County. Sec. 2-103. Natural Environment. The Florida Keys constitute a unique and irreplaceable natural resource of local, regional, state, national and international value. The Florida Keys are an island archipelago constituting a tropical experience accessible by automobile from the a continental United States. As such, the Keys are a vacation and residential resource unmatched in beauty, character and security in the continental Untied States. The natural environment of the Florida Keys -- uplands, wetlands, and nearshore waters -- is the central element of this distinctive character. In the Florida Keys, a distinct visual character, native and tropical vegetation, water-dependent recreation, distinct culture and an oceanic experience come together to make a desirable place to live and visit. It is essential, therefore, that the natural environment of Monroe County be conserved, and where appropriate, enhanced and restored. All future actions, both public and private, should be carried out in a way so as to ensure that the essential ingredients of Monroe County character are preserved and protected for existing and future generations. OBJECTIVES To manage and control the use of land so that the natural environment of Monroe County is protected. POLICIES To protect natural, undisturbed lands from significant disturbance. To protect threatened and endangered species and their habitats from human activities that would expose such species to displacement or extinction. To conserve the habitat of endemic species of plants and animals. Sec. 2-115. Enforcement A major component of any future land use element is the need to strictly enforce implementing regulations. If Monroe County is to achieve the promise of this Plan, it is essential that all persons involved in the land development process adhere to the requirements of this Plan and that the integrity of the development review process be protected. Marine Resources The great value attributed to Monroe County's marine resources is due to their crucial role in the local economy, and in providing a wide range of natural amenities and services. Health and integrity of the marine system is a fundamental prerequisite if these resources are to continue to provide social, economic, and environmental benefits that we have at times taken for granted. Mangroves, seagrass, and coral reefs, all of which are susceptible to pollution and dredging, are extremely important in providing food and shelter for myriad forms of marine life, providing storm protection, and maintaining water quality. If uses and activities such as dredge and fill, destruction of natural vegetation, use of pesticides and fertilizers, improper sewage and solid waste disposal continue indiscriminately and uncontrolled; the ability of the marine system to function effectively will deteriorate, thereby resulting in the loss of many natural services and socioeconomic benefits to society. Therefore, it is imperative that such uses and activities be carefully regulated so as to insure conservation and protection of resources and long-term maintenance of their productivity. Marine Resources Management Policies Recognizing the crucial role that the marine environment plays in the local economy, the protection, conservation, and management of marine resources will be viewed as an issue requiring the County's utmost attention. In an effort to protect and conserve marine resources, emphasis will be placed on protecting the entire marine ecosystem. To this end, maintenance of water quality; protection of marine flora and fauna, including shoreline vegetation; and preservation of coral reefs will be regarded as being absolutely essential to maintaining the integrity of the marine system. Generic Designations All marine grass beds in waters off the Florida Keys. All patch reef coral and other reef formations found in the surrounding waters off the Keys. All shore-fringing mangrove and associated vegetation extending up to 50 feet laterally upland from the landward limit of the shoreline mangrove. Management Policies These biotic communities will be preserved to the fullest extent possible. The Monroe County land development regulations, likewise effective September 15, 1986, provide: Sec. 9.5-3. Rules of construction In the construction of the language of this chapter, the rules set out in this section shall be observed unless such construction would be inconsistent with the manifest intent of the board of county commissioners as expressed in the Monroe County Comprehensive Plan, or an element or portion thereof, adapted pursuant to chapters 163 and 380, Florida Statutes (1985). The rules of construction and definitions set out herein shall not be applied to any section of these regulations which shall contain any express provisions excluding such construction, or where the subject matter or context of such section is repugnant thereto. A. Generally: All provisions, terms, phrases and expressions contained in this chapter shall be liberally construed in order that the true intent and meaning of the board of county commissioners may be fully carried out. Terms used in this chapter, unless otherwise specifically provided, shall have the meanings prescribed by the statutes of this state for the same terms. In the interpretation and application of any provision of this chapter, it shall be held to be the minimum requirement adopted for the promotion of the public health, safety, comfort, convenience and general welfare. Where any provision of this chapter imposes greater restrictions upon the subject matter than a general provision imposed by the Monroe County Code or another provision of this chapter, the provision imposing the greater restriction or regulation shall be deemed to be controlling. f. Nontechnical and technical words: Words and phrases shall be construed according to the common and approved usage of the language, but technical words and phrases and such others as may have acquired a peculiar and appropriate meaning in law shall be constructed and understood according to such meaning. m. Boundaries: Interpretations regarding boundaries of land use districts on the land use district map shall be made in accordance with the following, as partially illustrated in figure 1 [following this section]: Boundaries shown as following or approximately following the shorelines of any key or causeway or other island shall be construed as following the mean high water line of such island or key. In many instances, the boundary lines have been intentionally drawn seaward of the shoreline so that the shoreline itself will be visible. Sec. 9.5-286. Shoreline setback All buildings and structures, other than docks, utility pilings, walkways, non- enclosed gazebos and fences and similar structures shall be set back twenty (20) feet from the mean high tide line of man-made waterbodies and/or lawfully altered shorelines of natural waterbodies. All buildings other than docks, utility pilings, walkways, non-enclosed gazebos and fences and similar structures shall be set back fifty (50) feet from natural waterbodies with unaltered shorelines or unlawfully altered shorelines, measured from the landward limit of mangroves, if any, and where mangroves do not exist from the mean high tide line. (Emphasis added) The shoreline, altered or unaltered? While the Monroe County land development regulations do not expressly define the term "shoreline" with reference to a specific point for purposes of determining whether a shoreline has been lawfully altered or unaltered, a reading in pari materia of the rules of construction and the shoreline setback requirements compels the conclusion that such determination is made by reference to the mean high water line of Stirrup Key when it was developed. This definition of shoreline is consistent with Section 177.28(1), Florida Statutes, which defines the legal significance of the mean high water line as: Mean high-water line along the shores of land immediately bordering on navigable waters is recognized and declared to be the boundary between the foreshore owned by the state in its sovereign capacity and upland subject to private ownership . . . . It is likewise consistent with the peculiar and appropriate meaning in law that has established the shoreline at the mean high water line. See: Shively v. Bowlby, 152 U.S. 1, 14 S.Ct. 548 (1894), Borax Consolidated v. City of Los Angeles, 296 U.S. 10, 56 S.Ct. 23, reh. denied 296 U.S. 664, 56 S.Ct. 304 (1935), Axline v. Shaw, 35 Fla. 305, 17 So. 411 (1895), Board of Trustees of the Internal Improvement Trust Fund v. Walker Ranch General Partnership, 496 So.2d 153 (Fla. 5th DCA 1986), and Helliwell v. State, 183 So.2d 286 (Fla. 3rd DCA 1966). It is also consistent with the expressed intent of the developer of Stirrup Key and the governmental agencies that permitted such development, and it is consistent with Monroe County's land development regulations which define boundaries of islands which are shown as following the shoreline to be at the mean high water line. 3/ Accordingly, the shoreline of Stirrup Key, and more particularly Lot 98, is unaltered and a 50-foot setback from the landward limit of existing mangroves is mandated by the MCLDR.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Land and Water Adjudicatory Commission enter a final order reversing Monroe County's decision to issue permit number 8920001017, and deny Mid-Keys' application for such permit. It is further recommended that such final order specify those items set forth in paragraph 8, Conclusions of Law, as the changes necessary that would make Mid-Keys' proposal eligible to receive the requested permit. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 25th day of June 1990. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of June 1990.
The Issue At issue in this case is whether the Florida Land and Water Adjudicatory Commission (FLWAC) should grant the Petition to Amend the Boundaries of the Tomoka Community Development District filed on November 23, 2005 (Petition). The purpose of the Petition is to add 1,122 acres that were intended to be included in the Community Development District (CDD, or District) when it was created in October 2003 but were omitted through the inadvertent use of an erroneous legal description.
The Issue At issue in this case is whether the Florida Land and Water Adjudicatory Commission (FLWAC) should grant the Petition to Amend the Boundary of the Villages of Westport Community Development District (CDD, or District) filed on December 23, 2005 (Petition), as amended and supplemented.
Conclusions On March 10, 2010, an Administrative Law Judge (“ALJ”) of the Division of Administrative Hearings entered an Order Closing File in the above captioned case.
Other Judicial Opinions OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030(b)(1)(C) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT’S AGENCY CLERK, OFFICE OF THE GENERAL COUNSEL - CALDWELL BUILDING, 107 EAST MADISON STREET, MSC 110, TALLAHASSEE, FLORIDA 32399-4128, WITHIN 30 DAYS OF THE DAY THIS ORDER IS 2 Final Order No. DEO11-0006 FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. CERTIFICATE OF FILING AND SERVICE THEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Economic Opportunity, and that true and correct copies have been furnished to the persons listed below in the manner described, on this fopllriay of October 2011. : Miriam Snipes, Agency Clerk DEPARTMENT OF ECONOMIC OPPORTUNITY 107 East Madison Street, MSC 110 Tallahassee, Florida 32399-4128 By U.S. Mail: Alfred J. Malefatto, Esquire Greenberg Traurig, P.A. 777 South Flagler Drive, Suite 300E West Palm Beach, Florida 33401 R. Max Lohman, Esquire Corbett and White, P.A; 1111 Hypoluxo Road, Suite 207 Lantana, Florida 33462 Brian Joslyn, Esquire Gregory S. Kino, Esquire Boose, Casey, Cikin, Lubitz, Martens, McBane & O*Connell Northbridge Center, 19th Floor 515 North Flagler Drive West Palm Beach, Florida 33401-4626 By Hand Delivery: David L. Jordan, Assistant General Counsel Department of Economic Opportunity 107 East Madison Street, MSC 110 Tallahassee, Florida 32399-4128 By Filing with DOAH: The Honorable D. R. Alexander Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 Final Order No. DEO11-0006
The Issue The issue in this case is whether the subject plan amendment, which changes the future land use designations of parcels owned by each of the Petitioners, is not in compliance for the reasons set forth in the petitions.
Findings Of Fact The Parties Each Petitioner submitted oral or written objections during the review and adoption proceedings culminating in the adoption of the plan amendment at issue. Petitioner Wilson owns about 2.5 acres on the north 1/ side of State Route 524 and east side of Westminster Drive. The Wilson parcel, which is vacant, contains about 300 feet of frontage on State Route 524 and about 250 feet on Westminster Drive. Petitioner Tompkins owns about 3.5 acres on the north side of State Route 524 and west side of Westminster Drive. The Tompkins parcel, which is vacant, contains about 600 feet of frontage on State Route 524 and about 250 feet on Westminster Drive. The Wilson and Tompkins parcels lie between State Route 524 and Cocoa North, which is a large residential subdivision. The existing land uses near the area, which is a growth center in Cocoa, are largely low density residential, and there remains considerable vacant land. There are no commercial uses within the Cocoa North subdivision. The only access to Cocoa North is by way of State Route 524, using Westminster Drive or one of two other roads. The nearest convenience store is about two-thirds of a mile east of Westminster Drive on State Route 524. An I-95 interchange lies about 1.8 miles to the west of Westminster Drive on State Route 524. The nearest property to the west designated Commercial is at the northwest corner of the Tenzel property, which is discussed below. The Commercial parcel on the Tenzel property is about one and one-quarter miles from Westminster Drive. Petitioner Messiah Church owns about 2.3 acres on the east side of U.S. Route 1 about 300 feet north of Michigan Avenue. Petitioner Fountain owns about 0.72 acre on the east side of U.S. 1 about 1200 feet north of the Messiah Church's property. The Messiah Church parcel contains a church. The Fountain parcel is vacant. The Messiah Church and Fountain parcels lie between U.S. Route 1 and a wide strip of existing low density residential uses bordered on the east by the Indian River. The narrower strip containing the Messiah Church and Fountain parcels is located in an underutilized area characterized by a mix of existing commercial uses. For example, a flea market occupies the west side of U.S. Route 1 across from the Messiah Church parcel. Respondent Department of Community Affairs (DCA) is the state land planning agency charged with the responsibility of reviewing plans under Chapter 163, Part II, Florida Statutes. Respondent the City of Cocoa (Cocoa) is a local government required to adopt a revised comprehensive plan under Sections 163.3164(12) and 163.3167, Florida Statutes. History of Cocoa Comprehensive Plan Cocoa adopted its comprehensive plan and transmitted it to DCA on October 4, 1988. DCA issued a notice of intent to find the plan in compliance. A petition was filed challenging the determination of compliance and requesting a hearing under Section 163.3184(9), Florida Statutes. Following an administrative hearing, an order recommended that DCA forward the case to the Administration Commission for entry of a final order determining the plan not to be in compliance. The parties then negotiated a settlement agreement. Pursuant to the agreement, the Administration Commission entered a final order and later an amended final order determining the plan not to be in compliance and identifying the remedial amendments necessary to attain compliance. The designations challenged by Petitioners are part of a set of plan amendments consisting of the remedial amendments ordered by the Administration Commission, amendments required to settle a federal court action in which Cocoa was a defendant, and amendments having nothing to do with either legal proceeding. The challenged designations fall in the last category. The Future Land Use Map (FLUM) in the original plan adopted in 1988 designated as Commercial a strip of land containing the Wilson and Tompkins parcels. The entire strip runs 2700 feet along State Route 524, which is a two lane undivided minor arterial, and extends about 250 feet deep. The Wilson and Tompkins parcels constitute about 40% of the strip and are located at its extreme western end. State Route 524 operates at a level of service C and is projected to remain at this level of service though 1997. The FLUM designated as High Density Residential a strip of land containing the Messiah Church and Fountain parcels. The entire strip, which is generally quite shallow, runs about 3400 feet along U.S. Route 1, which is a four lane divided principal arterial. The Messiah Church and Fountain parcels constitute about 20% of the strip and are located in its northern half. U.S. Route 1 is operating at level of service D and is projected to be operating at level of service E by 1992 and level of service F by 1997. Transmittal and Adoption Process On October 30, 1989, the Planning and Zoning Board, which acts as the local land planning agency (LPA), conducted a public meeting at which it discussed at length new public participation procedures that it was considering adopting. Specific provisions were prepared following the meeting, circulated at the next LPA meeting on November 13, discussed, revised somewhat, and finally adopted. On November 21, 1989, the LPA met to discuss remedial amendments necessary to comply with the requirements of the Amended Final Order of the Administration Commission. Pursuant to a contract with Cocoa, the East Central Florida Regional Planning Council (Regional Planning Council) had prepared a draft set of amendments for review by the LPA. At the beginning of the November 21 meeting, the city attorney stated that the purpose of the meeting was to obtain information and comments from the public. He explained that he and city staff recommended that the LPA defer any formal action on the proposed amendments until their next scheduled meeting on November 27. A representative of the Regional Planning Council was in attendance to assist in the discussion. The proposed amendments drafted by the Regional Planning Council did not change the designations of the parcels owned by any of the Petitioners. In fact, according to the minutes, none of the four parcels nor either of the two strips containing the parcels was even mentioned at the November 21 meeting. Following a very short meeting on November 27 to discuss remedial amendments, the LPA next met on November 30. By this time, the Regional Planning Council had prepared a "final draft" of proposed remedial amendments. Following discussion, the LPA voted to recommend the proposed amendments to City Council. Toward the end of the meeting, the Vice Chairman moved that the strip containing the Messiah Church and Fountain parcels be designated Low Density Residential. The motion passed. At a regular meeting on November 28, the City Council adopted Resolution 89-37, which provides for public participation procedures in connection with the comprehensive planning process. The ordinance calls for advertising of transmittal and adoption hearings in accordance with applicable law, the encouragement of oral or written public comment, and responses from the City Council or its designee. At a special meeting on December 5, the City Council considered the proposed amendments that had been recommended by the LPA. At this meeting, the City Council voted to change the designations for both strips, including all of Petitioners' parcels to Low Density Residential. The vote on the strip containing the Messiah Church and Fountain parcels was unanimous. The vote on the strip containing the Wilson and Tompkins parcels was four to one. Neither DCA nor Cocoa staff originally suggested the new designations for Petitioners' parcels. The new designations were not prompted by any changes to the original data and analysis. It does not appear that the Regional Planning Council, which also assisted in the preparation of the original plan, proposed that the parcels originally be designated Commercial, but it does not appear that the Regional Planning Council made the suggestion for a change in designation. At a special meeting on December 11, the City Council considered the proposed amendments, including the new designations for Petitioners' parcels, as well as the amendments to settle the pending state and federal litigation. No one appeared on behalf of any of the Petitioners to object to the proposed designations. However, in response to the objections of an owner of other property on the south side of State Route 524, whose property was also proposed for redesignation as Low Density Residential, representatives of Cocoa explained that the redesignation on both sides of State Route 524 was based on Cocoa's recent experience with DCA on unrelated plan amendments involving what is known as the Tenzel property. The city attorney indicated that staff was concerned that the objections lodged by DCA to the plan amendments involving the Tenzel property, which Cocoa was at the same time annexing, could possibly be made against the Commercial designation along both sides of State Route 524. The city manager also mentioned his concern that the plan be internally consistent. The Tenzel property consists of 157 acres on the south side of State Route 524 about one mile west of Westminster Drive. Cocoa transmitted the proposed Tenzel amendments to DCA on March 13, 1989. The proposed amendments designated 60 acres, including its entire State Route 524 frontage, Commercial and the remainder Industrial. Cocoa was planning to annex the Tenzel property, which was at the time of the transmittal in unincorporated Brevard County. In its Objections, Recommendations, and Comments (ORC) dated July 6, 1989, DCA objected that, among other things, the proposed designation was inconsistent with Future Land Use Element (FLUE) Policy 1.2, which is to discourage new linear commercial development. Instead, DCA recommended that new commercial uses should be clustered. DCA also complained that the designation was not supported by data and analysis and the portion of the FLUM covering the Tenzel property did not depict natural resources. On September 6, 1989, Cocoa annexed the Tenzel property and amended its plan. The adopted plan amendments designated only 10 acres Commercial and the remaining 147 acres Residential. 2/ The property designated Commercial was limited to only about half of the available frontage and was restricted to the northwest corner, which is farthest from the Tompkins and Wilson parcels and closest to the I-95 interchange at State Route 524 to the west. The adoption package contained considerable data and analysis concerning the newly annexed property. DCA issued its notice of intent to find the plan amendment in compliance on October 25, 1989. Notwithstanding the Tenzel-related concerns expressed at the December 11 hearing of the City Council, an owner of about 2.5 acres of land on Westminster Drive near State Route 524 objected to the redesignation of his land from Commercial to Low Density Residential. He argued that the land was unsuitable for residential uses due to traffic and other factors. In response, the city manager stressed the possibility of conflict with the plan if strip commercial were "proposed." 3/ With one member changing his vote as to the strip containing the Wilson and Tompkins parcels, the City Council voted three to two to transmit to DCA the proposed amendments, including the new Low Density Residential designations for the two strips containing the four parcels of Petitioners. The sole issue concerning the advertisements for the transmittal hearings of December 5 and 11 is their failure to identify the Wilson and Tompkins parcels as the subject of proposed land use changes. The advertisement for the December 11 hearing states in bold, capital letters at the top: "Notice of Change of Land Use and Comprehensive Plan." Following a brief paragraph announcing the time and place, the first item to be discussed is: "Proposal to change the use of land within the areas shown on the map below." Immediately below this sentence is a map of the entire city. Beside the map in one block is the statement: "Landuse changes to the future landuse map." A second block below the first states: "Black shaded areas to low density residential." The shading covers the High Density Residential strip including the parcels owned by the Messiah Church and Fountain, but omits the Commercial strip including the parcels owned by Wilson and Tompkins. The map for the December 11 hearing was published on December 4. The change of designation for the Wilson and Tompkins parcels was first proposed at the City Council hearing the following day. By letter dated March 22, 1990, DCA transmitted its ORC on the proposed plan amendments. The ORC informed Cocoa that DCA had no objections, recommendations, or comments on the transmitted amendments. Following receipt of the ORC, the LPA met on May 2, 1990, to review staff's response. During the meeting, the LPA discussed the Wilson parcel with her attorney, who objected that the Commercial designation would render the property useless due to its shallow depth. The attorney pointed out that a residential designation was impractical at that location; to the east, on the north side of State Road 524, townhouses had remained unsold for a long time. A motion not to change the Commercial designation on the Wilson and Tompkins parcels, while changing the designation for the rest of the strip to Low Density Residential, was seconded and discussed. It failed by a vote of four to three. At this point, the city attorney suggested that condominiums already in the area would be incompatible with Low Density Residential. The discussion acknowledged the protests of surrounding homeowners to the Commercial designation. A motion, seconded, to designate the entire strip north of State Route 524 as High Density Residential failed by a four to three vote. This vote was immediately followed by a motion, seconded, to designate the entire strip north of State Route 524 as Medium Density Residential. This motion passed by a five to two vote. The same attorney also represented the Messiah Church at the LPA meeting. He stated that the church intended to sell the property and the new designation was disadvantageous to a sale. In the ensuing discussion, it was noted that central sewer had yet to reach this site. A motion, seconded, was made to designate the Messiah Church parcel High Density Residential. The motion failed by a five to two vote. A motion, seconded, to designate the entire strip along the east side of U.S. Route 1 Low Density Residential passed unanimously. At the conclusion of the meeting, the LPA voted to adopt the amendments, subject to changes made at the meeting, and send the package to the City Council. The City Council meeting of May 8 was announced by a large display newspaper advertisement, which was published on April 27. The advertisement contained a map shaded to indicate that the designation of the two strips in question was proposed to be changed to Low Density Residential. During the meeting, the city attorney discussed the redesignation of the strip along State Route 524 from Low Density Residential, as it was shown in the transmittal amendments, to Medium Density Residential, as had been recommended by the LPA at its May 2 meeting. An attorney representing Wilson and Tompkins argued in favor of the Commercial designation given the property in the original plan. The city manager responded that the property was reexamined as a result of Cocoa's recent experience with DCA on the Tenzel plan amendments. Trying to avoid the appearance of strip commercial zoning, staff favored the proposed recommendation. The city attorney likewise warned the City Council to consider as a matter of policy the concern of DCA to avoid urban sprawl and strip commercialism. Nearby residents were almost uniformly in favor of a residential designation. Wilson complained that she purchased the property after being told by Cocoa that she could use it for commercial purposes. She also argued that 15 units per acre would allow 30 homes, which would add to the congestion in the area. After everyone had a chance to speak, a motion, seconded, called for designating the Wilson and Tompkins parcels as Commercial with the remainder of the strip designated Medium Density Residential. The motion failed three votes to two. A motion, seconded, to accept the recommendation of the LPA passed three to two. After other parcels were discussed, the city attorney raised the redesignation as Low Density Residential of the High Density Residential strip along the east side of U.S. Route 1. The attorney representing Messiah Church asked that the City Council consider the church property separately because it was for sale and worth more in its present designation as High Density Residential. He argued that buffering provisions of the plan would be violated by a Low Density Residential designation. Concerning his property, Fountain agreed with the attorney's reasoning and informed the City Council that no home had been built along U. S. Route 1 from Sharpes to south Rockledge for over 30 years. Following discussion, during which the Mayor noted that the Regional Planning Council had recommended that the property be designated Low Density Residential, a motion, seconded, to leave the strip High Density Residential failed three votes to two. A motion, seconded, to approve the recommendation of the LPA passed by the same margin. At the conclusion of the meeting, the City Council approved on first reading the ordinance adopting the plan amendments. Following another display newspaper advertisement indicating proposed land use changes for the two strips, the City Council again met on May 22, 1990. A minister of the Messiah Church praised the City Council for its recent decisions and announced that the church had decided that to meet the needs of the community it would minister to persons whose needs were presently unmet, like transients, mentally retarded persons, handicapped persons, and residents of halfway houses. Church officials had decided that such a ministry could be carried out from the present location with the proposed designation, which nonetheless remained an example of bad planning in their opinion. Addressing the strip north of State Route 524, the attorney representing Wilson and Tompkins objected to the absence of representatives from the Regional Planning Council despite the fact that they had been responsible for drafting the plan amendments. The city attorney advised that the Regional Planning Council had originally recommended that these parcels be designated Low Density Residential, but the City Council, as it was then constituted, decided to change the designation to Commercial in the original plan. The city manager again justified the decision as to the Wilson and Tompkins parcels based on DCA's objections to the transmittal amendments for the Tenzel property. After discussion on the State Route 524 strip concluded, the attorney for Messiah Church objected to the proposed redesignation from High Density to Low Density Residential. Again protesting the absence of the Regional Planning Council planners, he asked for an explanation of this action. The city manager responded that staff's concerns involved compatibility with existing uses and recommendations of citizens in the area. The city attorney added that the central sewer lines ended south of the Messiah Church parcel. Various persons spoke on both sides of the issue. After discussion of other plan issues, the City Council adopted Ordinance 15-90, which includes the plan amendments that, among other things, redesignate the Commercial strip containing the Wilson and Tompkins parcels to Medium Density Residential and the High Density Residential strip containing the Messiah Church and Fountain parcels to Low Density Residential. The failure of the published map to depict the four parcels or the two strips undoubtedly accounts for the absence of the Petitioners from the second transmittal hearing. However, the arguments of similarly situated landowners were presented at the hearing. Moreover, five months passed between the transmittal and adoption hearings. Nothing in the record suggests than any Petitioner could have accomplished more in a few days before the second transmittal hearing that he, she, or it accomplished in the several months that passed before the adoption hearings. All Petitioners complain that the inadequacy of explanations received at the hearing for the redesignations deprived them of effective public participation. Generally, they received responses to their demands for explanations. Several reasons emerge from the record for the redesignation of Petitioners' parcels. As to the Wilson and Tompkins parcels, Cocoa staff officials expressed concerned about the appearance of strip commercial designations. This explanation is difficult to justify objectively because the Commercial designations probably could not have been challenged by DCA in the subject plan amendments. DCA's objections to the transmittal plan amendments on the Tenzel property were not relevant to the Commercial designations given these four parcels, especially if taken in isolation from the strips of which they were a part. It is of course possible that, given Cocoa's recent experience in federal and state review of its land use planning efforts, beleaguered staff and local officials chose to exercise an abundance of caution. As to the Messiah Church and Fountain parcels, Cocoa staff and officials expressed concern about the unavailability of central sewer. However, the concern, at least as voiced personally by the Mayor at the May 8 City Council hearing, was not so much for the protection of natural resources as for the protection of nearby homeowners from the expense of tying in to central sewer lines if they were extended through the High Density Residential strip. Transcript of May 8 hearing, pages 48-49. The Mayor's concern points to the most compelling explanation for the new designations for all four parcels. Each designation was driven by political pressure from residents, which, to some extent in this case at least, may be characterized in the more appealing terms of concerns about surrounding land use compatibility. The forces of neighborhood preservation confronted the forces of development and, in this encounter, the former prevailed by a bare majority of the City Council. The evidence fails to establish to the exclusion of fair debate that the above-described facts are not consistent with the applicable public participation criteria. Data and Analysis in Support of Designations Cocoa did not submit new data or analysis when it submitted the adopted plan amendments. However, data and analysis transmitted with the original plan, as well as the Tenzel amendments, bear on the new designations. More pertinent to the Wilson and Tompkins parcels, the data and analysis note: Neighborhood commercial uses of low density and intensity should be located within neighborhoods or central to several residential clusters. Such a locational strategy would produce the beneficial effects of reducing the time and distance to neighborhood commercial, making trips quicker, easier, and more economical. Background Analysis, FLUE, page 1-26. At the same time, the data and analysis predict significant traffic impacts on State Route 524 as the impact of new residential developments is felt. Background Analysis, Traffic Circulation Element, page 2-16. On the other hand, another locational recommendation in the data and analysis is for the central business district, which is south of all four parcels, to serve as "the community focal point providing a mixture of retail and services." Background Analysis, FLUE, page 1-26. Projecting a population increase of nearly 4000 persons from 1986 to 2000, the data and analysis report that there is generally enough land available for residential needs. Background Analysis, Housing Element, p. 3-15. The analysis concludes that County will need about 309 acres for residential development through 2000. Background Analysis, FLUE, page 1-26. Additional data and analysis accompanying the Tenzel plan amendments lower this amount to 130.6 acres, at least as to single family residential. Tenzel Data and Analysis, Part II. However, a corresponding increase in projected population probably should have accompanied the Tenzel plan amendments because they involved an annexation. Although the data and analysis provide little useful information concerning the amount of acreage designated, rather than zoned, residential, there is no evidence on which to base a conclusion that changing the designations of the State Route 524 strip from Commercial to Medium Density Residential and the U.S. Route 1 strip from High Density Residential to Low Density Residential defy the data and analysis regarding the need for residential land. The data and analysis project that 385 acres will need to be devoted to commercial uses by 2000. Background Analysis, FLUE, page 1-26. In 1987, about 276 acres were in commercial use. Table 1-2, Background Analysis, FLUE, page 1-6. Although the data and analysis do not indicate the number of vacant or developed acres designated Commercial under the plan, Tables 1-3 and 1-4 indicate that about 800 acres are zoned commercial. Background Analysis, FLUE, page 1-7 and 1-11. The acreage zoned commercial and acreage designated Commercial are probably about the same. Table 1-4 indicates that 170 acres zoned commercial are vacant and suitable for development. If Cocoa requires another 100+ acres for commercial uses in addition to the 276 acres already in commercial use, the designation of 800+ acres as Commercial is ample to meet this need. Thus, the removal of a Commercial designation from the 15-acre strip, of which the Wilson and Tompkins parcels are a part, does not defy the data and analysis. The fairest conclusion that can be drawn from the data and analysis is that Cocoa suffers no deficiency, in terms of projected needs in the year 2000, in land designated Commercial or in either of the relevant residential categories. Pertinent to the Messiah Church and Fountain parcels, the data and analysis indicate that the City's wastewater treatment facility was to be expanded in November, 1988. Background Analysis, Capital Improvements Element, page 9-11. The project was completed, and the wastewater facility has a considerable reserve capacity. Presently, the Messiah Church and Fountain parcels, and the surrounding area, are served by septic tanks. The data and analysis indicate, however, that the City is committed to a program of gradually extending central sewer services to areas within the city not currently served. Background Analysis, Wastewater Element, page 3-5. More recently, the Tenzel analysis states: "A policy of phasing out septic tanks has been in place in order to protect the environment." Tenzel data and analysis, Section IV, Wastewater. A rough estimate of the cost to extend sewer lines the necessary one- quarter mile to the area of the Messiah Church parcel is $500,000. Although it might be more feasible for the developer of a High Density Residential project to provide the funds to extend sewer lines, the feasibility is not clear given a project on a 2.3 acre parcel in an underutilized part of town. In any event, Cocoa has demonstrated a commitment to expanding the central sewer system, require connections, and finance the expansion by special assessments. The data and analysis would support either designation. The evidence thus does not establish to the exclusion of fair debate that the designations are not supported by the data and analysis. Consistency of Designations with Criteria of Land Use Suitability Analysis, Encouraging Redevelopment of Blighted Areas, and Discouraging Urban Sprawl For the four parcels, the land use suitability analysis accompanying the original plan supports the designations adopted in the plan amendments. This issue has been considered above with respect to the issue involving supporting data and analysis. Given the changes in designations from Commercial and High Density Residential to Medium and Low Density Residential, respectively, no additional land use analysis was required for the reasons set forth in the Conclusions of Law corresponding to the preceding section. The evidence fails to establish to the exclusion of fair debate that the designations are not supported by a land use suitability analysis. For the reasons set forth in the Conclusions of Law corresponding to this section, no findings are necessary to address the issue of the consistency of the plan amendment with the criteria of Chapter 163, Part II, and Chapter 9J- 5 concerning redevelopment of blighted areas and urban sprawl. Findings concerning urban sprawl in the context of internal consistency are in the following section. Although not alleged as a basis for a finding of internal inconsistency, the issue of redevelopment of blighted areas has been considered in the following section as well, for the reasons set forth in the corresponding Conclusions of Law. Consistency of Designations with Plan Provisions Encouraging Redevelopment of Blighted Areas and Discouraging Urban Sprawl FLUE Objective 1.1 is to adopt land development regulations to "discourage the proliferation of urban sprawl." Goal 1 of the Public Facilities Element is to provide public facilities in a manner that "protects investments in existing facilities and promotes orderly, compact urban growth, and discourages urban sprawl." Similarly, Public Facilities Element Objective 4.1.2 is to coordinate the provision of public facilities with the FLUE "to discourage urban sprawl and maximize the use of existing facilities." Other provisions relied upon by Petitioners to show internal inconsistency are Public Facilities Objective 4.2.5 and FLUE Policy 1.1.2 Residential Areas--General Paragraphs 1-2 and 5-6. Public Facilities Objective 4.2.5 is to adopt land development regulations that prohibit the installation of additional septic tanks within the incorporated city limits will be discouraged except when it is determined that the use of a septic tank system is the most efficient, cost effective and environmentally compatible alternative. [sic] FLUE Policy 1.1.2 Residential Areas--General Paragraphs 1-2 and 5-6 provide that land development regulations shall be based upon the following locational criteria: Provisions of new residential uses shall be adequately balanced with the availability of residential support services including community facilities, shopping, schools, parks and open space, and transportation services. The City will encourage infill development in areas of existing viable housing, provide for redevelopment in blighted areas or areas in transition, and encourage new housing development in appropriate areas where community services exist or are programmed to occur. Residential areas shall be buffered from major transportation arteries and from incompatible non-residential uses. Residential areas should be served by sidewalks and, where practical, bikeways with convenient access to recreation, shopping, and schools. FLUE Policy 1.1.2 Commercial Areas Paragraph 2 4/ provides: New commercial uses shall be discouraged from linear commercial development and shall be encouraged to develop in clusters, with coordinated parking facilities, and with frontage roads where practical. Resulting in most cases from ineffective or no land use planning, urban sprawl is the extension of urban-type development into rural, agricultural, or other undeveloped or sparsely developed lands in a haphazard development pattern in which land uses are not functionally related to each other. Common patterns of the premature land development characteristic of urban sprawl are the ribbon pattern, leapfrog pattern, and concentric circle pattern. In the ribbon pattern, development not functionally or proximately related to other non-urban development in the area extends in ribbons or strips along certain roads and away from urban development. In the leapfrog pattern, development not functionally or proximately related to other non-urban development in the area leaps from urban development so as to leave significant amounts of rural, agricultural, or other undeveloped or sparsely developed land between the existing urban development and the scattered leapfrog development. The concentric circle pattern is similar except that the development not functionally or proximately related to other non-urban development in the area assumes the pattern of concentric circles, such as along rural roads bypassing an urban area, and is characteristically more exclusively low-density residential. Urban sprawl typically interferes with one or more of four general objectives of effective land use planning: 1) promotion of the efficient use of land in the development of new, and maintenance of existing, viable mixed-use communities; 2) protection of natural resources in rural, agricultural, or other undeveloped or sparsely developed areas; 3) protection of agricultural lands and uses in rural, agricultural, or other undeveloped or sparsely developed areas; and 4) promotion of the efficient provision to both urban and non-urban areas of public facilities and services, such as water, sewer, roads, schools, police, fire, drainage, and other infrastructure, whether provided by public or private entities. The long strip of Commercial along State Route 524 suggests the presence of commercial sprawl along a thoroughfare. By removing the Commercial designation, Cocoa eliminates this type of sprawl. On the other hand, with respect to the Wilson and Tompkins parcels, Cocoa North resembles another example of sprawl. The introduction of compatible neighborhood commercial uses would tend to mix the uses with an immediate impact of relieving some traffic on State Route 524, as residents could make small purchases at, say, a convenience store located at State Route 524 and Westminster Drive. However, the solution adopted by Cocoa for the Wilson and Tompkins parcels, although possibly not the only one available under the circumstances, is consistent with the provisions of the plan to discourage urban sprawl. When compared to the prospect of the entire strip remaining designated Commercial, Cocoa's solution represents an improvement in terms of urban containment. The reduction of density for the strip east of U.S. Route 1 has few evident sprawl implications. To the extent this action may focus more dense residential development in the central business district or elsewhere where central sewer is already provided, the new designation serves the objectives to discourage urban sprawl. In any event, the new designation is not inconsistent with the sprawl provisions of the plan. The puzzling septic tank policy is probably intended to read that septic tanks are prohibited except when the use of a septic tank is the most efficient, cost effective, and environmentally compatible solution. The new designation for the strip east of U.S. Route 1 is not inconsistent with this policy. Consequently, the evidence fails to establish to the exclusion of fair debate that the designations are inconsistent with the provisions in the plan to discourage urban sprawl. FLUE Objective 1.3 is to eliminate "[e]xisting conditions of slum and blight . . . by the year of 2000." FLUE 1.1.2 Redevelopment Area Paragraph 1 designates the Redevelopment Area, which is depicted by map and excludes the two strips containing Petitioners' parcels, as an area of slum or blight pursuant to Chapter 163, Part II, Florida Statutes. Paragraph 3 adds that the City shall redevelop the central business district, which is within the Redevelopment Area, as a viable business district consistent with surrounding historic resources, residential neighborhoods, and natural resources. There is no evidence of blight as to the Wilson and Tompkins parcels, notwithstanding the marketing problems experienced in connection with the nearby townhouses. Concerning the Messiah Church and Fountain parcels, a haphazard collection of largely commercial uses, such as a flea market, have accumulated over the years along U.S. Route 1 in the vicinity of the two parcels. The immediate area appears not to be economically vibrant, but no evidence establishes that the area is blighted. Further, no evidence suggests that the area's economic fortunes would be enhanced if the strip were designated High Density Residential, notwithstanding the Messiah Church's intended use of the parcel if it is not given a High Density Residential designation. The evidence fails to establish to the exclusion of fair debate that the designations are inconsistent with plan provisions to encourage the redevelopment of blighted areas. Consistency of Designations with Regional and State Plans Regional Plan Policy 51.12 states: The "infilling" of existing urban areas and the renovation of blighted areas shall be encouraged in areas where existing wastewater transmission and treatment capacity are available for allocation, or funding has been committed for the provision of sufficient capacity. Emphasis should be placed on encouraging development activities within the urban service area boundaries as identified in local government comprehensive plans. Techniques of encouragement include but are not limited to: Provision of public or private facilities and services in strict accordance with adopted growth management objectives and policies . . Providing incentives for restoration or rehabilitation of blighted areas with existing sewer service through various actions such as but not limited to rezoning to other uses or higher densities Strengthening and preserving existing residential areas through the planned provision of public services, zoning and other techniques. Regional Plan Policy 57.7 5/ specifies the "designation of . . . activity centers . . . as a means of planning appropriate and balanced land uses on a scale and at an intensity consistent with the availability of public facilities and services . . Regional Policy Plan 51.10 limits the use of septic tanks in areas where conditions are suitable for installation and effective operation, provided that central sewer system services are not available due to lack of available treatment capacity, accessible facilities, or other considerations . . .. The following minimum criteria and procedures shall be adhered to . . . where regional resources may be adversely affected: * * * 3. The decision to require phasing out of septic tank systems where centralized sewer systems are available should be based solely upon the availability of those centralized systems and not upon any other consideration of ground water hydrology and current performance levels of septic tanks. For the reasons already discussed, the evidence fails to establish to the exclusion of fair debate that the designations are not consistent with these provisions of the Regional Plan. Section 187.201(18)(a), Florida Statutes (the State Plan) is for Florida to "protect the substantial investments in public facilities that already exist and . plan for and finance new facilities . . . in a timely, orderly, and efficient manner." Goal 16 of the State Plan is to direct development "to those areas which have in place, or have agreements to provide, the land and water resources, fiscal abilities, and service capacity to accommodate growth in an environmentally acceptable manner." The first three policies under Goal 16 are: Promote state programs, investments, and development and redevelopment activities which encourage efficient development and occur in areas which will have the capacity to service new population and commerce. Develop a system of incentives and disincentives which encourages a separation of urban and rural land uses while protecting water supplies, resource development, and fish and wildlife habitats. Enhance the liveability and character of urban areas through the encouragement of an attractive and functional mix of living, working, shopping, and recreational activities. In addition to the above-cited provisions relied upon by Petitioners, Policy 3 of Goal 5 of the State Plan is to increase the supply of safe, affordable, sanitary housing for low- and moderate-income persons by, in part, "recycling older houses and redeveloping residential neighborhoods." For the reasons already discussed, the evidence fails to establish to the exclusion of fair debate that the designations are not consistent with these provisions of the Regional Plan.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Community Affairs enter a final order dismissing the petitions of the four Petitioners. ENTERED this 8 day of August, 1991, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8 day of August, 1991.
Conclusions Having considered the entire record in this cause, it is concluded that petitioner has satisfied all requirements in Subsection 190.005(1)(e), Florida Statutes (1989). More specifically, it is concluded that all statements contained within the petition have been found to be true and correct, the creation of a district is consistent with applicable elements or portions of the state comprehensive plan and the Lee County comprehensive plan currently in force, 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, the district is the best alternative available for delivering community development services and facilities to the area that will be served by the district, the community development services and facilities of the district will be compatible with the capacity and uses of existing local and regional community development services and facilities, and the land that will be served by the district is amenable to separate special- district government. Respectively submitted this 7th day of May, 1991, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of May, 1991. Appendix A (Names and Address of Witnesses) Bryon R. Koste, 801 Laurel Oak Drive, Suite 500, Naples, Florida 33963 Thomas R. Peek, 3200 Bailey Lane at Airport Road North, Naples, Florida 33942 Gary L. Moyer, 10300 N.W. 11th Manor, Coral Springs, Florida 33071 Dr. Lance deHaven-Smith, Florida Atlantic University, 220 S.E. 2nd Avenue, Fort Lauderdale, Florida 33301 Samuel R. Crouch, 9200 Bonita Beach Road, Suite 101, Bonita Springs, Florida 33923 David E. Crawford, 9200 Bonita Beach Road, Suite 101, Bonita Springs, Florida 33923 Dr. James E. Pitts, College of Business, Florida State University, Tallahassee, Florida 32306 William Spikowski, Lee County Community Development Department, 1831 Hendry Street, Fort Myers, Florida 33901 Gary L. Beardsley, 2396 13th Street North, Naples, Florida Richard Huxtable, 4741 Spring Creek Road, Bonita Springs, Florida 33923 Larry Sullivan, 4778 Tahiti Village, 4501 Spring Creek Road, Bonita Springs, Florida 33923 Lee Menzies, Business Development Corporation of Southwest Florida, corner of Summerlin and College Parkway, Fort Myers, Florida Donna Buhl, 4501 Spring Creek Road, Box 91, Bonita Springs, Florida 33923 Ruth Norman, 24578 Redfish Street, S.W., Bonita Springs, Florida 33923 James Pepper, P. O. Box 1260, Bonita Springs, Florida 33923 (Names and addresses of persons filing written statements) Eugene S. Boyd, 5225 Serenity Cove, Bokeelia, Florida 33922 Edward S. Zajchowski, 4501 Spring Creek Road, Box 178, Bonita Springs, Florida 33923 Winifred M. Wheeler, 24593 Dolphin Street, S.W., Bonita Springs, Florida 33923 James W. Campbell, 4501 Spring Creek Road, Box 131, Bonita Springs, Florida 33923 Dorothy Jean Kendrick, 300 Haral Street, Sturgis, Michigan 49091 Exhibit A Appendix B (List of Documentary Evidence) Location map Local boundary map outlining district Map of district and surrounding areas Collier County Comprehensive Future Land Use Map Exhibit B Pelican's Nest PUD 1b Ridgewood RPD 1c Palmetto Bay RPD 1d Pelican's Nest RPD 1e Summary of status of permits Proposed development agreement Statement by Crawford concerning DRI Exhibit C Petition filed by Westinghouse Bayside Communities, Inc. Location map Metes and bounds legal description of district Consent to establishment of district Map of existing major trunk water mains, sewer interceptors or outfalls Proposed time tables and cost estimates Future land use portion of Lee County Comprehensive plan Economic impact statement Exhibit D Supplement to metes and bounds description in petition Specific description of all real property within district Exhibit E Photocopy of $15,000 processing check sent to County Letter transmitting petition to Commission Secretary Exhibit F Letter transmitting petition to Division of Administrative Hearings Exhibit G Notice of Publication in Florida Administrative Weekly on March 8, 1991 Affidavit for Fort Myers News-Press publication, March 11, 1991 Affidavit for Fort Myers News-Press publication, March 18, 1991 Affidavit for Fort Myers News-Press publication, March 25, 1991 Affidavit for Fort Myers News-Press publication, April 1, 1991 Exhibit H Lee County Comprehensive Plan Documentation of plan status Exhibit I Chapter 187, Florida Statutes Exhibit J Letter of March 14, 1991 from Secretary of Department Community Affairs to Commission Secretary Exhibit K White Paper by Dr. Lance deHaven-Smith Supplemental Exhibits Prefiled testimony of Bryon G. Koste Prefiled testimony of Samuel R. Crouch 3A Letter from Samuel R. Crouch to Jim Pepper 3B Letter from Samuel R. Crouch to Lloyd Read Prefiled testimony of Gary L. Moyer Prefiled testimony of David E. Crawford Prefiled testimony of Thomas R. Peek Prefiled testimony of Dr. Lance deHaven-Smith Intevenors Exhibit 1 - Letter of Edward S. Zajchowski COPIES FURNISHED: Douglas M. Cook, Secretary Florida Land and Water Adjudicatory Commission Office of the Governor The Capitol Tallahassee, FL 32399-0001 Kenza Van Assenderp, Esquire P. O. Box 1833 Tallahassee, FL 32302-1833 Judith A. Workman, Esquire 408 Old Trail Road Sanibel, FL 33957 Marianne Kantor, Esquire Asst. County Attorney Lee County Courthouse 1700 Monroe Street Fort Myers, FL 33901 David M. Maloney, Esquire Office of the Governor The Capitol, Room 309 Tallahassee, FL 32399-0001
Findings Of Fact On January 15, 1993, Westinghouse Communities of Naples, Inc., (Westinghouse) filed a Petition with the Secretary of the Florida Land and Water Adjudicatory Commission (FLWAC), seeking establishment by rule of the Pelican Marsh Community Development District (CDD) in an unincorporated area of Collier County, Florida. The Secretary certified that the contents of the Petition were complete and on March 12, 1993, forwarded the Petition to the Division of Administrative Hearings. On May 3, 1993, Westinghouse filed an Amended Petition with the FLWAC Secretary. The Amended Petition revised related provisions contained in Paragraph 10 and Exhibit 7 of the original Petition. The amendments address delivery of water, wastewater and irrigation service within the CDD and set forth the obligations of the proposed CDD and the Collier County Water-Sewer District related to the construction, ownership and operation of interim and permanent facilities for such services. The FLWAC Secretary determined that the contents of the Amended Petition were complete and on May 21, 1993, forwarded the Amended Petition to the Division of Administrative Hearings. Notice of the date and location of the public hearing was published in the Naples Daily News, a daily newspaper in Naples, Florida on May 13, 20, 27 and June 3, 1993. A copy of such notice was served upon the Department of Community Affairs as required by Rule 42-1.011, Florida Administrative Code. Notice of the hearing was published by the FLWAC's Secretary in the Florida Administrative Weekly on May 14, 1993, as required by Rule 42- 1.010(1)(b), Florida Administrative Code. Westinghouse submitted a copy of the Petition to the Collier County Board of County Commissioners ("Board") on February 26, 1993 and submitted a copy of the Amended Petition to the Board on April 16, 1993. As required by Section 190.005(1)(b)1, Florida Statutes, Westinghouse paid the $15,000 filing fee to the Board. A public hearing before the Board was held on May 4, 1993. Such hearing is optional pursuant to Section 190.005(1)(c), Florida Statutes. Upon completion of the hearing, the Board adopted Resolution No. 93- 187 through which it determined that the establishment of the CDD was in the best interests of the county and its citizens and that the county was supportive of the establishment of the CDD. A transcript of the county hearing was filed with the FLWAC on May 4, 1993. If approved by the FLWAC, the CDD will be an independent special purpose local government as authorized by Chapter 190, Florida Statutes, with power to plan, finance, construct, operate and maintain the community infrastructure (except as to certain water and sewer services discussed elsewhere herein) within the jurisdiction of the CDD. The CDD will manage and finance basic services for the residential community known as Pelican Marsh. The 2,075 acres of the community development to be serviced by the CDD is located north of the City of Naples within an unincorporated area of Collier County. To the north of the CDD lies unimproved land, residential subdivisions and Immokalee Road (County Road 846). To the east is unimproved land and the site of a proposed extension of Livingston Road. To the south is Vanderbilt Beach Road (County Road 862), the site of a proposed extension of Vanderbilt Beach Road, and Pine Ridge subdivision. To the west is North Tamiami Trail (U.S. Highway 41). The land within the proposed CDD is currently zoned as "Urban Residential", "Activity Center" and "Proposed Activity Center". Westinghouse has entered into the record, as Exhibit "C", an Application for Public Hearing for Rezone and Conditional Use Requests and a draft Planned Unit Development document for a portion of the community consisting of approximately 1086.5 acres. The draft Planned Unit Development document authorizes a mixture of land uses, including single and multi-family housing, limited to 780 dwelling units and a 27-hole golf course with clubhouses. Westinghouse has acknowledged in its Amended Petition that the Collier County Water-Sewer District is the permanent supplier of all water, wastewater and irrigation service in the CDD and that the CDD shall be obligated to convey all water, sewer and irrigation facilities to the County and its Water-Sewer District upon completion. Westinghouse also acknowledges certain rights and obligations of the CDD with respect to the construction and operation of interim water, wastewater and irrigation facilities. The cost of such facilities will be borne by the CDD through various types of financing mechanisms. Only those persons who receive the benefit of the services will pay the costs involved in provision of the facilities. Summarization of Testimony and Evidence Mr. Louis H. Hoegsted is Executive Vice President of Westinghouse Communities of Naples, Inc., the corporation that filed the Petition and Amended Petition in this matter. Mr. Hoegsted has general responsibility for planning the Pelican Marsh community, including the filing of the petitions. Westinghouse, a Florida corporation, has developed the community of Pelican Bay in Collier County, Florida. Mr. Hoegsted was involved as the company representative in the formation and operation of the former Pelican Bay Improvement District, created by special act of the Florida Legislature. Pelican Bay was merged by Collier County into the County Water-Sewer District. Mr. Hoegsted identified Westinghouse's Composite Hearing Exhibits "A" through "R". All of the below-described documents were prepared under the supervision of Mr. Hoegsted. The exhibits identified by Mr. Hoegsted are as follows: Composite Exhibit "A" includes four exhibits numbered "A-1" through "A-4". Exhibit "A-1" is a General Location Map, which identifies the site of the proposed CDD. Exhibit "A-2" is a Boundary Map of the area to be served by the CDD. Exhibit "A- 3" is a Boundary Map of the land area included within the jurisdiction of the CDD. Exhibit "A-4" is a copy of the Collier County Comprehensive Plan Map, as amended June, 1993. Exhibit "B" is the Preliminary Development Agreement of May 20, 1993 executed between the Florida Department of Community Affairs and Westinghouse. Exhibit "C" is a copy of a draft Planned Unit Development document which upon adoption would establish the zoning for a portion of the proposed development. Composite Exhibit "D" is made up of 12 separate exhibits identified as Exhibits "D-1" through "D-9" with subparts. Exhibit "D-1" is the Petition filed with the FLWAC in this case. Exhibit "D-2" is a map showing the location of the land area to be serviced by the CDD. Exhibit "D-3" is a metes and bounds description of the CDD. Exhibit "D-4" is composed of the written consent of Westinghouse Communities of Naples, Inc. and the Manatee Fruit Company, as owners of land within the CDD. (Also filed as Exhibit "R-1" is an additional consent of the remaining land owners within the CDD.) Exhibit "D-5" (including subparts a-c) is composed of drawings showing the Collier County waste water service system, potable water service system and the drainage outfalls. Exhibit "D-6" is the proposed schedule and cost estimates for construction of CDD infrastructure. Exhibit "D-7a" is a copy of the Collier County Comprehensive Plan Future Land Use Map. Exhibit "D-7b" is a copy of the Department of Community Affairs compliance letter related to the Collier County Comprehensive Plan, as amended. Exhibit "D-8" is an acknowledgment by Westinghouse that Collier County is authorized to regulate the provision of water and sewer facilities within the CDD. Exhibit "D-9" is a Statement of Economic Impact for the CDD by Fishkind & Associates, Inc. Composite Exhibit "E" consists of 12 exhibits identified as "E-1" through "E-9" including subparts. Composite Exhibit "E-1" includes the Amended Petition filed with the FLWAC in this case. Exhibit "E-2" is a map showing the location of the land area to be serviced by the CDD. Exhibit "E-3" is a metes and bounds description of the CDD. Exhibit "E-4" is composed of the written consent of Westinghouse Communities of Naples, Inc. and the Manatee Fruit Company, as owners of land within the CDD. Exhibit "E-5" (including subparts a-c) is composed of drawings showing the Collier County waste water service system, potable water service system and the drainage outfalls. Exhibit "E-6" is the proposed schedule and cost estimates for construction of CDD infrastructure. Exhibit "E-7a" is a copy of the Collier County Comprehensive Plan Future Land Use Map. Exhibit "E-7b" is a copy of the Department of Community Affairs compliance letter related to the Collier County Comprehensive Plan, as amended. Exhibit "E-8" is an acknowledgment by Westinghouse that Collier County is authorized to regulate the provision of water and sewer facilities within the CDD. Exhibit "E-9" is a Statement of Economic Impact for the CDD by Fishkind & Associates, Inc. Composite Exhibit "F" includes four items. Exhibit "F-1" is the prehearing stipulation filed in this case. Exhibit "F-2" is a Memorandum of Agreement between Westinghouse and Collier County related to the provision of water, wastewater and irrigation facilities and services within the proposed CDD. Exhibit "F-2a" is a draft copy of an interlocal agreement related to the provision of water, wastewater and irrigation facilities and services within the proposed CDD. Exhibit "F-2b" is a copy of Collier County Resolution No. 93-187 indicating that the Board of County Commissioners supports the establishment of the CDD. Composite Exhibit "G" consists of two items: Exhibit "G-1", a Westinghouse letter dated February 26, 1993 submitting the Petition to Collier County; and Exhibit "G-2", a Westinghouse letter dated April 16, 1993 submitting the Amended Petition to Collier County. Exhibit "H" is a photocopy of the $15,000 check from Westinghouse to Collier County constituting the filing and processing fee. Composite Exhibit "I" includes Exhibit "I-1", a letter dated February 26, 1993 transmitting the Petition to David Coburn of the FLWAC, and Exhibit "I-2" a letter dated May 3, 1993, transmitting the Amended Petition to Mr. Coburn. Composite Exhibit "J" includes four exhibits. Exhibit "J-1" is Mr. Coburn's letter of notification dated March 12, 1993 to the Florida Department of Community Affairs (DCA) transmitting the Petition for DCA review. Exhibit "J-2" is Mr. Coburn's letter of notification dated March 15, 1993 to the Southwest Florida Regional Planning Council (SWFRPC) transmitting the Petition for SWFRPC review. Exhibit "J-3" is Mr. Coburn's letter of notification dated May 5, 1993 to the DCA transmitting the Amended Petition for review. Exhibit "J-4" is Mr. Coburn's letter of notification dated May 5, 1993 to the SWFRPC transmitting the Amended Petition for review. Composite Exhibit "K" consists of two exhibits, "K-1" and "K-2", both letters from Mr. Coburn to the Florida Division of Administrative Hearings transmitting the Petition and Amended Petition, dated March 12 and May 21, 1993, respectively. Composite Exhibit "L" includes six exhibits. Exhibit "L-1" is a certified copy of the notice of publication of receipt of Petition and notice of hearing as published in the Florida Administrative Weekly. Exhibits "L-2" through "L-6" are the tear sheets from the Naples Daily News setting forth notice of the hearing held in this case. Exhibit "M" consists of excerpts from the Collier County Comprehensive Plan. The complete official copy of the Collier County Comprehensive Plan was filed with the Hearing Officer prior to the hearing and is transmitted with the record established during the hearing. Exhibit "N" is a letter from the Florida Department of Community Affairs to Collier County stating that the DCA had determined that the relevant Comprehensive Plan Amendment was in compliance with state law. Exhibit "O" is a copy of the State Comprehensive Plan for the State of Florida appearing in Chapter 187, Florida Statutes. Exhibit "P" consists of a white paper dated March, 1993 and prepared by Dr. Lance deHaven-Smith, a political economist. The report addresses growth management considerations and the proposed establishment of the Pelican Marsh CDD. Composite Exhibit "R" consists of two parts. Exhibit "R-1" is an additional consent of the remaining land owners within the CDD. (Exhibit D-4 contains the originally filed consent documents.) Exhibit "R-2" is an updated estimate of proposed infrastructure construction costs and deadlines. As Executive Vice President of Westinghouse Communities of Naples, Inc., Mr. Hoegsted directed the planning and preparation of the Petition and Amended Petition filed in this matter. The consultants who reviewed the project on behalf of Westinghouse were directed to assume that the CDD would provide all services and facilities which it was able to provide under Sections 190.011 and 190.012, Florida Statutes, with the exception of the County's provision of water, wastewater and irrigation services and facilities. (As addressed elsewhere herein, the County Water and Sewer District is to be the sole provider of water, wastewater and irrigation water within the Water-Sewer District boundaries in accordance with Collier County Ordinance Nos. 78-10, 79-33, 88-76, 90-86 and 90-87.) The consultants were directed to consider the factors enumerated in Subsection 190.005(1)(e), Florida Statutes. Based upon review of their analysis, Mr. Hoegsted asserts that all statutory criteria have been satisfied. There is no evidence to the contrary. The Statement of Economic Impact prepared for the CDD by Fishkind & Associates, Inc., includes an analysis of economic costs and benefits to all persons directly affected by the Petition, estimates the impact of the CDD on competition in the open market and describes the source of information and methodology used in preparing the statement. According to the statement, the creation of the CDD will not constitute a significant burden to either the State of Florida or Collier County. There is no evidence contrary to that contained within the Fishkind report. Thomas R. Peek is a professional engineer with Wilson, Miller, Barton and Peek, Inc., an engineering consulting firm located in Naples, Florida. Mr. Peek was accepted as an expert in civil engineering related to provision of infrastructure development in Southwest Florida communities. Mr. Peek is familiar with the CDD and with the status of the development approvals and related land development permits and approvals from local and state authorities for the Pelican Marsh community. He is knowledgeable as to the steps involved in engineering basic systems, facilities and services for community developments. He opined that there is a high probability for quality long term infrastructure maintenance by an independent special district government. Mr. Peek testified that he had reviewed the Amended Petition and attachments and that they contained no information inconsistent with engineering considerations raised by the state or the Collier County Comprehensive Plans. It is anticipated that the CDD will be requested to provide water management, utilities, roads, landscaping and street lighting. Mr. Peek is unable to predict whether the CDD will be asked to exercise any additional powers pursuant to Section 190.012(2), Florida Statutes. Such additional powers relate to certain public improvements and community facilities as parks, fire prevention, schools, security, and mosquito control. Mr. Peek opined that the land within the proposed CDD is of sufficient size, compactness and contiguity to be developable as one functionally interrelated community and is amenable for a CDD, that there are no land features or facilities which could make the benefits of the CDD difficult to provide, and that the CDD will not be inconsistent with the Collier County local government comprehensive plan. There is no evidence contrary to that provided by Mr. Peek. His testimony is accepted. Dr. Lance deHaven-Smith is a political science professor and provost of the Broward County campus of Florida Atlantic University. He was accepted as an expert in political science and in alternative ways to provide community infrastructure. Dr. deHaven-Smith reviewed the Petition from a general infrastructure and growth management policy perspective. He further addressed the relevant statutory criteria. Based on his review he prepared a report, "Growth Management Considerations in the Proposed Establishment of the Pelican Marsh Community Development District". The report is identified as Westinghouse Exhibits "D-9" and "E-9". According to Dr. deHaven-Smith, Collier County has experienced substantial growth in recent years, requiring a rapid expansion in infrastructure for transportation, water, waste water treatment, law enforcement, recreation, and many other services. Community development districts play an important role in growth management by facilitating large scale, high quality development and relieving local governments of the burden of paying for and managing many of the services and public works that such developments require. According to Dr. deHaven-Smith, to the extent that there are weaknesses in the state's growth management system, community development districts provide a means of appropriate controlled development. Even though the state has adopted a state comprehensive plan, the need for CDDs exists, especially in areas such as Collier County where growth is at a rate twice that of other Florida communities. Accordingly, Dr. deHaven-Smith opined that the CDD is a good tool in the growth management process. Dr. deHaven-Smith described the manner in which the CDD would operate and carry out the powers prescribed in the development order for Pelican Marsh District. He opined that, relative to the alternatives for providing the infrastructure necessary for the Pelican Marsh community, the CDD mechanism is the most appropriate alternative. He further noted that although the CDD has a range of specific and general powers, it is controlled by substantive and procedural limitations and would be subservient to Collier County. Dr. deHaven-Smith reviewed the statutory factors and related information that must be considered in order to establish a CDD. He opined that all statements within the petitions are true and correct, that the creation and establishment of the CDD is not inconsistent with applicable portions of the state and local comprehensive plans, that the area of land within the CDD is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developable as one functional interrelated community, that the CDD is the best alternative for delivering community development services and facilities, that the services and facilities are compatible with the capacity and uses of existing local and regional community development services and facilities, and that the area to be served is amenable to separate special-district services and facilities. There is no evidence contrary to the witness' testimony which is hereby accepted. David Crawford is Director of Planning and Governmental Relations with Westinghouse Bayside Communities, Inc. He has 15 years experience in the planning of infrastructure provision for community development and has been involved in the preparation of comprehensive plans for several Florida counties. He testified as to the permitting and development approval status of the Pelican Marsh community and the physical characteristics and situations to be found within the area of the proposed CDD, including two existing roadways, a drainage canal, an outfall and various utilities which cross the property. Mr. Crawford described the state comprehensive plan and how the establishment of the CDD would be consistent with and facilitate certain enumerated policies in the plan. Mr. Crawford stated that the CDD will not be inconsistent with the Collier County Comprehensive Plan. With respect to state concurrency requirements, Mr. Crawford asserted that the CDD is the best method to provide sustained infrastructure to a community. Mr. Crawford stated that the CDD is a responsive, efficient, timely and economic means of providing services to a community's future population without over-burdening the existing residents. He asserted that the land within the CDD is of sufficient size, compactness and contiguity to be developable as one functionally interrelated community and that the land area in the CDD is amenable to separate special-district government. According to Mr. Crawford, the establishment of the CDD will not create any incompatibility with the existence of any regional systems, services or facilities. In Mr. Crawford's opinion, the establishment of the CDD will not overburden the Collier County government with respect to providing maintenance over the long-term infrastructure to the proposed development nor overburden the taxpayers of Collier County. Furthermore, he opined that the CDD will not be a needless or unacceptable proliferation of local government in view of the six factors required to be considered for its establishment under Chapter 190. Mr. Crawford testified that it is not premature to establish the CDD before issuance of the final development order under Section 380.06, Florida Statutes. Because infrastructure construction activities require construction permitting from the county, it is unlikely that the CDD would construct infrastructure inconsistent with the eventual development order to be issued by the county. There is no evidence contrary to the testimony of Mr. Crawford and it is accepted. Gary L. Moyer serves as district manager for twenty-three community development districts throughout the state. As a district manager, he coordinates the planning, financing, construction, operation, and maintenance of infrastructure provided to new community developments. Mr. Moyer was accepted as an expert in district management and government. Mr. Moyer reviewed the factors used in FLWAC's determination regarding whether the petition should be approved. He concluded that all criteria were satisfied. Within the context of his expertise, Mr. Moyer opined that all statements in the Amended Petition to be true and correct, that the CDD is compatible with all state and local comprehensive plans, that the land area of the CDD is of sufficient size and compactness and is sufficiently contiguous to be developable as one functional interrelated community, that the CDD is the best alternative for delivering the proposed services and facilities to the development, that the CDD is not incompatible with the capacity and uses of existing local and regional community development services and facilities, and that the area to be served is amenable to separate special-district government. Mr. Moyer noted that the CDD will be subject to the same checks, balances and accountability as other general purpose governmental entities. The CDD Board of Supervisors is governed by state ethics laws, "Government in the Sunshine," public records law and statutes related to accountability of public officials. Mr. Moyer noted that, once established, the CDD becomes a "partner" with local government in achieving the goals and objectives of the community. Mr. Moyer stated that the operations of the CDD must be in accordance with local government's comprehensive plan and construction standards. He further noted that the CDD must supply planning documents to the local government to ensure consistency with the local comprehensive plan. There being no evidence to the contrary, Mr. Moyer's testimony is accepted as being credible on these issues.
Conclusions Having considered the entire record in this cause, and without evidence to the contrary, it is concluded that: All statements contained within the Petition have been found to be true and correct. Section 190.005(1)(e)1., Florida Statutes. The creation and establishment of the CDD is consistent with applicable elements or portions of the state comprehensive plan and the Collier County comprehensive plan, as amended. Section 190.005(1)(e)2., Florida Statutes. The area of land within the CDD is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developable as one functional interrelated community. Section 190.005(1)(e)3., Florida Statutes. The CDD, in accordance with applicable state and local law and the Memorandum of Agreement executed by Westinghouse and Collier County, is the best alternative available for delivering community development services and facilities to the area that will be served by the CDD. Section 190.005(1)(e)4., Florida Statutes. In accordance with applicable state and local law and the Memorandum of Agreement executed by Westinghouse and Collier County, the community development services and facilities of the CDD will be compatible with the capacity and uses of existing local and regional community development services and facilities. Section 190.005(1)(e)5., Florida Statutes. The 2,075 acre tract of land that will be served by the CDD is amenable to separate special-district government, in accordance with the provisions of Chapter 190, Florida Statutes, and the Memorandum of Agreement between Westinghouse and Collier County. Section 190.005(1)(e)6., Florida Statutes. DONE and ISSUED this 10th day of September, 1993, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of September, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-1490 APPENDIX "A" NAMES AND ADDRESSES OF WITNESSES Louis H. Hoegsted Westinghouse Communities of Naples, Inc. 801 Laurel Oak Drive, Suite 500 Naples, Florida 33963 Thomas R. Peek Wilson, Miller, Barton & Peek 3200 Bailey Lane at Airport Road Naples, Florida 33942 Dr. Lance deHaven-Smith 5935 North West 96 Drive Parkland, Florida 33076 David Crawford Westinghouse Bayside Communities 9200-101 Bonita Beach Road, South West Bonita Springs, Florida 33923 Gary Moyer 10300 North West 11 Manor Coral Springs, Florida 33071 APPENDIX "B" LIST OF DOCUMENTARY EVIDENCE Composite Exhibit "A" Exhibit "A-1" is a large General Location Map, which outlines the general location of the proposed Pelican Marsh community within Collier County. Exhibit "A-2" is a Boundary Map of the development to be served by the CDD. Exhibit "A-3" is a Boundary Map of the land area to be included within the jurisdiction of the CDD. Exhibit "A-4" is a copy of the Collier County Comprehensive Plan Map, as amended June, 1993. Exhibit "B" Exhibit "B" is the Preliminary Development Agreement, dated May 20, 1993 between the Florida Department of Community Affairs and Westinghouse. Exhibit "C" Exhibit "C" is a draft of Planned Unit Development document which may establish the zoning for a portion of the proposed development. Composite Exhibit "D" Exhibit "D- 1" is the Petition filed with the FLWAC. Exhibit "D-2" is a map showing the location of the land area to be served by the CDD. Exhibit "D-3" is a metes and bounds description of the CDD. Exhibit "D-4" is composed of the written consent of Westinghouse Communities of Naples, Inc. and the Manatee Fruit Company, as owners of land within the CDD. (Exhibit "R-1" is the additional consent of the remaining land owners within the CDD.) Exhibit "D-5" is composed of drawings showing the Collier County waste water service system, potable water service system and the drainage outfalls. Exhibit "D-6" is a proposed schedule of the deadlines and cost estimates to construct CDD infrastructure. Exhibit "D-7" is a copy of the Collier County Comprehensive Plan Future Land Use Map. Exhibit "D-7b" is a copy of the Department of Community Affairs compliance letter related to the Collier County Comprehensive Plan, as amended. Exhibit "D-8" is an acknowledgment by Westinghouse that Collier County is authorized to regulate the provision of water and sewer facilities within the CDD. Exhibit "D-9" is a Statement of Economic Impact for the District by Fishkind & Associates, Inc. Composite Exhibit "E" Exhibit "E-1" is the Amended Petition. Exhibits "E-2" through "E-9" are identical to Exhibits "D-2" through "D-9" except for a minor change to the Acknowledgement in Exhibit "E-8". Composite Exhibit "F" Exhibit "F-1" is the Prehearing Stipulation signed by Collier County and Westinghouse with attachments and filed in this case. Exhibit "F-2" is a Memorandum of Agreement between Westinghouse and Collier County related to the provision of water, wastewater and irrigation facilities and services within the proposed CDD. Exhibit "F-2a" is a draft copy of an interlocal agreement related to the provision of water, wastewater and irrigation facilities and services within the proposed CDD. Exhibit "F-2b" is Resolution No. 93-187 of Collier County indicating that the Board of County Commissioners supports the establishment of the CDD. Composite Exhibit "G" Exhibit "G-1" is a letter from Westinghouse to Collier County, dated February 26, 1993, submitting the Petition to the county. Exhibit "G-2" is a letter from Westinghouse to Collier County, dated April 16, 1993, submitting the Amended Petition to the county. Exhibit "H" Exhibit "H" is a photocopy of the $15,000 check constituting the filing and processing fee from Westinghouse to Collier County. Composite Exhibit "I" Exhibit "I-1" is a transmittal letter from Attorney Kenza van Assenderp to David Coburn of the Florida Land and Water Adjudicatory Commission dated February 26, 1993 which accompanied the Petition. Exhibit "I-2" is a transmittal letter from Attorney Kenza van Assenderp to David Coburn of the Florida Land and Water Adjudicatory Commission dated May 3, 1993 which accompanied the Amended Petition. Composite Exhibit "J" Composite Exhibit "J" consists of four letters of notification from David Coburn, Secretary of the Florida Land and Water Adjudicatory Commission to the Florida Department of Community Affairs and the Southwest Regional Planning Council transmitting the Petition and Amended Petition. Composite Exhibit "K" Exhibit "K-1" is a letter dated March 12, 1993 from David Coburn to the Florida Division of Administrative Hearings transmitting the Petition. Exhibit "K-2" is a letter dated May 21, 1993 from David Coburn to the Florida Division of Administrative Hearings transmitting the Amended Petition. Composite Exhibit "L" Exhibit "L-1" is a certified copy of the notice of publication of receipt of Petition and notice of hearing as published in the Florida Administrative Weekly. Exhibits "L-2" through "L-6" are the tear sheets from the Naples Daily News setting forth notice of the hearing held in this case. Exhibit "M" Exhibit "M" consists of excerpts from the Collier County Comprehensive Plan. The complete official copy of the Collier County Comprehensive Plan was in the possession of the Hearing Officer at the time of the hearing and is transmitted with the record established during the hearing. Exhibit "N" Exhibit "N" is a letter from the Florida Department of Community Affairs to Collier County wherein notice was given of its determination that the Comprehensive Plan Amendment was in compliance with state law. Exhibit "O" Exhibit "O" is a copy of the State Comprehensive Plan for the State of Florida appearing in Chapter 187, Florida Statutes. Exhibit "P" Exhibit "P" is a March, 1993 report prepared by Dr. Lance deHaven-Smith regarding growth management considerations and the proposed establishment of the Pelican Marsh Community Development District. Exhibit "R" Exhibit "R-1" is an additional consent of the remaining land owners within the CDD. (Exhibit D-4 contains the originally filed consent documents.) Exhibit "R-2" is an updated estimate of proposed infrastructure construction costs and deadlines. COPIES FURNISHED: David K. Coburn, Secretary Florida Land & Water Adjudicatory Commission 311 Carlton Building Tallahassee, Florida 32301 Kenza Van Assenderp, Esquire Post Office Box 1833 Tallahassee, Florida 32302-1833 Richard D. Yovanovich, Esquire 3301 Tamiami Trail East Naples, Florida 33962-4976
