The Issue The issue before the Florida Land and Water Adjudicatory Commission (FLWAC) in this proceeding is whether to grant the Petition to Establish the Lakewood Ranch Community Development District Seven (Petition). The local public hearing was for the purpose of gathering information in anticipation of rulemaking by FLWAC.
Findings Of Fact On September 24, 1982, Respondents, James A. Joss, Steven M. Mishkin and Norma Trento, together with Thomas Moskowitz, formed Highland Ranch Acres, Inc. (Highland Ranch), a Florida corporation, for the purpose of acquiring, subdividing and selling certain land in Section 35, Township 24 South, Range 25 East Lake County, Florida. These individuals were the sole principals and stockholders of Highland Ranch, and held, respectively, one-sixth, one-sixth, one-third and one-third of Highland Ranch's capital stock. All of the above- referenced individuals made an initial capital contribution to Highland Ranch, except Joss, who donated his time, knowledge and expertise in land sales. The land in question, acquired from W. D. Land Company consisted of approximately 50 acres, which Highland Ranch "subdivided" into 40 parcels of 1- 1/4 acres each, and consecutively numbered 65 through 104. Highland Ranch marketed the parcels to residents and nonresidents of the State of Florida by telephone solicitation, and a follow-up brochure. On March 3, 1983, the same principals formed Citrus Grove Acres, Inc. (Citrus Grove), a Florida corporation, for the same purposes they had formed Highland Ranch. Their respective ownership of the capital stock of Citrus Grove was the same as it had been in Highland Ranch. Citrus Grove acquired approximately 53 acres of land from W. D. Land Company in the same section, township and range of Lake County, Florida, as those lands acquired by Highland Ranch. Citrus Grove "subdivided" these lands into 42 parcels of 1-1/4 acres each, and consecutively numbered them 105 through 146, and marketed them in the same manner the lands owned by Highland Ranch had been sold. On June 13, 1983, the same principals formed Central Florida Highlands, Inc. (Central Florida), a Florida corporation, for the same purposes they had formed Highland Ranch and Citrus Grove. Their respective ownership of the capital stock of Central Florida was the same as it had been in Highland Ranch and Citrus Grove. Central Florida acquired approximately 15 acres of land from W. D. Land Company in the same section, township and range of Lake County, Florida, as those lands acquired by Highland Ranch and Citrus Grove. Central Florida subdivided these lands into 12 parcels of 1-1/4 acres each, and consecutively numbered them 147 through 158, and marketed them in the same manner the lands owned by Highland Ranch and Citrus Grove had been sold. Highland Ranch, Citrus Grove and Central Florida had the same principals, who performed the same basic duties. Joss, assisted by Mishkin, was responsible for the conception and operation of the business of the three corporations. Joss, as president, executed the purchase and sale agreements on behalf of Highland Ranch; Mishkin, as president, executed the purchase and sales agreements on behalf of Central Florida; and Trento, as president, executed the purchase and sales agreements on behalf of Citrus Grove. The purchase and sale agreements, and the brochures mailed to the telephone prospects, except for the corporate name, were identical in each instance. The photographs in the brochures which purported to depict the lands being offered, were identical. None of the photographs depicted the subject lands but rather were of lands Respondent Joss had marketed 15 years previously through Groveland Ranch Acres, Inc. All of the lands in question were purchased from the same seller, were located in the same section, township and range of Lake County, Florida, were subdivided into 1-1/4 acre lots which were consecutively numbered 65 through 158. The lands were located in the Green Swamp Area of Critical State Concern, were zoned agricultural and required a minimum of five acres to be eligible for a building permit, were not platted with the county, and contained no avenues of ingress and egress. Respondents were advised by their attorney, Michael J. Moskowitz, that Chapter 498, Fla. Stat., required registration if they proposed to offer more than 50 parcels to more than 45 persons. He further advised them that if the subsequent corporation(s) had the same principals and other indicia of a common promotional plan that their activities might be deemed a common promotional plan, subjecting them to potential liabilities. Respondent Joss concedes that the sole reason for forming Citrus Grove and Central Florida, and taking title in their names, instead of simply purchasing the additional lands in the name of Highland Ranch, the existing corporation, was to avoid the registration requirements of Chapter 498, Fla. Stat. Highland Ranch, Citrus Grove, and Centra1 Florida did not individually convey more than 50 parcels to more than 45 purchasers. Collectively however, they did convey more than 50 parcels to more than 45 purchasers.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes (Department), enter a Final Order finding Respondents, James A. Joss, Norma Trento, Steve Mishkin, Citrus Grove Acres, Inc., and Highland Ranch Acres, Inc., guilty of violating the provisions of Sections 498.023(1) and (2), Fla. Stat., and ordering that Respondents shall not offer or dispose of, or participate in the offer or disposition of any interest in "subdivided lands," as defined by Section 498.005(17), Fla. Stat., unless the subdivided lands are registered with the Department. Within thirty (30) days of the date of the Final Order, Respondents shall offer all purchasers of land from Highland Ranch Acres, Inc., Citrus Grove Acres, Inc., and Central Florida Highlands, Inc., an opportunity to rescind their agreement, and to receive a refund of all principal and interest paid. The term "purchaser" as used herein shall mean any person who made any payment to Respondents for lands offered by Highland Ranch Acres, Inc., Citrus Grove Acres, Inc., and Central Florida Highlands, Inc., whether or not such person is currently making payments. The refund offer shall be in writing, and in a form approved by the Department. After notifying purchasers of the refund offer, Respondents shall determine the total amount of refund liability, based upon purchaser(s) who elect to rescind their agreement, and notify the Department within sixty (60) days of the date of the Final Order of the name(s) of the purchaser(s) electing to rescind their agreement and the amount of refund liability for each such purchaser. Respondents shall establish a trust or escrow account in a financial institution located within the State of Florida to assure the payment of refunds to those purchasers who elect to rescind, and to assure the conveyance of clear and marketable title to those purchasers who do not elect to rescind, transactions. Respondents shall appoint a trustee or escrow agent acceptable to the Department, who shall have such powers as are necessary to fulfill the purpose of his trust. Respondents shall collect and deposit any and all monies paid by all purchasers of lands from Highland Ranch Acres, Inc., Citrus Grove Acres, Inc., and Central Florida Highland, Inc., into the trust or escrow account established pursuant to paragraph (4). Respondents shall have no right, title or interest in or to the aforesaid monies until such time as those purchasers who have elected to rescind have been paid in full, clear and marketable title has been conveyed to those purchasers who have elected not to rescind, the trustee's or escrow agent's fees, if any, have been paid, and the civil penalties hereinafter imposed have been paid. Respondents shall pay the following civil penalties to the Department, within thirty (30) days from the date of the Final Order: Norma Trento $10,000.00 Steve Mishkin $20,000.00 James Joss $20,000.00 Highland Ranch Acres, Inc. $20,000.00 Citrus Grove Acres, Inc. $20,000 00 DONE and ENTERED this 30th day of May, 1985, at Tallahassee, Florida. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 30th day of May, 1985. COPIES FURNISHED: Thomas A. Klein, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Scott T. Eber, Esquire 3550 Biscayne Boulevard Suite 504 Miami, Florida 33137 E. James Kearney, Director Division of Florida Land Sales, Condominiums and Mobile Homes Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Richard B. Burroughs, Jr., Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
The Issue Whether Respondent, IMT-LB Central Florida Portfolio, LLC (Respondent), committed a discriminatory practice in violation of Chapter 760, Florida Statutes (2009).1
Findings Of Fact Respondent owns and/or operates a residential rental property located at 4400 Martin’s Way, Orlando, Florida. The property, identified in this record as Village Park Apartments (Village Park), consisted of a two-story, multi-building, multi- apartment complex. Sometime in late October 2009, Petitioner leased an apartment at Village Park. Petitioner’s apartment was on the second floor and no other apartments were above his. Petitioner’s lease agreement required that Petitioner obtain and provide public utilities for his apartment. Although Petitioner claims he did not timely receive a copy of his lease in order to be on notice of this provision, the record is clear that after Petitioner became aware of the provision, he did not obtain public utilities for the apartment. Shortly after Petitioner received a bill for utility service for his apartment from Respondent in December 2009, Petitioner complained to governmental authorities about conditions at the apartment complex. With regard to the conditions of his living unit, Petitioner maintained there was a roof leak, a vanity pipe leak, and a non-working toilet. Ms. Johnson, an inspector for the City, came out to Village Park and inspected the unit. She found that the toilet and vanity required repair. She further determined that Respondent would need to get a certified roofing person to verify the condition of the roof, and to certify to the City that the roof was water tight. It was Ms. Johnson’s position that water damage was evident on the ceiling in Petitioner’s unit, and that Respondent would need to get a certified roofing person to verify the condition of the roof, as well as someone to restore the interior of Petitioner’s unit by repairing and/or painting the ceiling. An inspector from the Orange County Health Department also visited Village Park concerning a complaint about rats at the dumpster. Respondent timely addressed the rodent issue and the property is under contract with an extermination company that provides appropriate rodent deterrence. Respondent timely repaired the vanity leak and the toilet issue in Petitioner’s apartment. The roof issue, however, was not quickly resolved. Initially, Petitioner refused to allow Respondent into the unit to repair the ceiling. Ms. Johnson advised Petitioner that he would have to allow Respondent entry in order for them to be able to fix the ceiling and restore it to an appropriate condition. According to Ms. Johnson, the ceiling in Petitioner’s unit did not collapse as alleged by Petitioner. Ms. Johnson also noted that there was debris around the dumpster at Village Park. She was favorably impressed with the speed with which the maintenance crew cleaned up the mess at the dumpster site. Despite some delays in getting the roof inspection completed to Ms. Johnson’s satisfaction, all issues with Petitioner’s unit were resolved to the City’s satisfaction. Concurrent with the repair timeline to Petitioner’s unit, Respondent filed an eviction proceeding against Petitioner. That action progressed through the court, through mediation, and resulted in a stipulated settlement agreement. The Landlord/Tenant Stipulation was executed on January 27, 2010, and provided, in pertinent part: Defendant [Petitioner] agrees to place utilities in his own name at OUC no later than Feb. 3, 2010. * * * Defendant agrees to allow Plaintiff [Respondent] to enter his apartment for repairs on Feb. 1, 2010 between 9:00 a.m. and 5:00 p.m. Petitioner failed to abide by the terms of the stipulation. Ultimately the court issued a Final Judgment for Possession and Writ of Possession for Petitioner’s unit. Petitioner's claim that the eviction process was retaliation for the complaints made to the county and city authorities, belies the fact that Petitioner failed to honor the terms of the lease, and the stipulation reached in the eviction proceeding. Petitioner’s race was not directly or indirectly involved in any manner. Nor was Petitioner treated less favorably than a similarly situated party not of Petitioner’s race.
The Issue The issues in these cases are whether two community development district petitions should be granted: the first, a Petition to Contract Lakewood Ranch Community Development District 2; and the second, a Petition to Establish Rule [sic] for Lakewood Ranch Community Development District 5.
Conclusions Under Section 190.003(6), Florida Statutes (2000), a "community development district" (CDD) is "a local unit of special-purpose government which is created pursuant to this act and limited to the performance of those specialized functions authorized by this act; the boundaries of which are contained wholly within a single county; the governing head of which is a body created, organized, and constituted and authorized to function specifically as prescribed in this act for the delivery of urban community development services; and the formation, powers, governing body, operation, duration, accountability, requirements for disclosure, and termination of which are as required by general law." (All of the following statutory citations are to the year 2000 codification of the Florida Statutes.) Sections 190.006 through 190.046 constitute the uniform general law charter of all CDDs, which can be amended only by the Florida Legislature. Section 190.011 enumerates the general powers of CDDs. These powers include the power of eminent domain inside the district and, with the approval of the governing body of the applicable county or municipality, outside the district for purposes related solely to water, sewer, district roads, and water management. Section 190.012 lists special powers of CDDs. Subject to the regulatory power of all applicable government agencies, CDDs may plan, finance, acquire, construct, enlarge, operate, and maintain systems, facilities, and basic infrastructures for: water management; water supply, sewer, and wastewater management; needed bridges and culverts; CDD roads meeting minimum county specifications, street lights, and certain mass transit facilities; investigation and remediation costs associated with cleanup of environmental contamination; conservation, mitigation, and wildlife habitat areas; and certain projects within or without the CDD pursuant to development orders from local governments. After obtaining the consent of the applicable local government, a CDD may have the same powers with respect to the following "additional" systems and facilities: parks and recreation; fire prevention; school buildings; security; mosquito control; and waste collection and disposal. Section 190.046(1) provides for the filing of a petition for contraction of a CDD. Under paragraphs (f) and (g) of Section 190.046(1), petitions to contract a CDD by more than 250 acres "shall be considered petitions to establish a new district and shall follow all of the procedures specified in s. 190.005." Section 190.005(1)(a) requires that the petition to establish a CDD be filed with FLAWAC and submitted to the County. The petition must describe by metes and bounds the proposed area to be serviced by the CDD with a specific description of real property to be excluded from the district. The petition must set forth that the petitioner has the written consent of the owners of all of the proposed real property in the CDD, or has control by "deed, trust agreement, contract or option" of all of the proposed real property. The petition must designate the five initial members of the Board of Supervisors of the CDD and the district’s name. The petition must contain a map showing current major trunk water mains and sewer interceptors and outfalls, if any. Both the petition to contract District 2 and the petition to establish District 5 meet those requirements. Section 190.005(1)(a) also requires that the petition propose a timetable for construction and an estimate of construction costs. The petition must designate future general distribution, location, and extent of public and private uses of land in the future land-use element of the appropriate local government. The petition must also contain a Statement of Estimated Regulatory Cost. Both the petition to contract District 2 and the petition to establish District 5 meet those requirements. Section 190.005(1)(a) also requires the petitioner to provide a copy of the local government’s growth management plan (the local government comprehensive plan). District 2 and SMR have done so. Section 190.005(1)(b) requires that the petitioner pay a filing fee of $15,000 to the county and to each municipality whose boundaries are within or contiguous to the CDD. The petitioner must serve a copy of the petition on those local governments, as well. District 2 and SMR have met those requirements. Section 190.005(1)(c) permits the county and each municipality described in the preceding paragraph to conduct an optional public hearing on the petition. Such local governments may then present resolutions to FLAWAC as to the proposed property for the CDD. Manatee County has exercised this option and has adopted a resolution in support of the contraction of District 2 and establishment of District 5. Section 190.005(1)(d) requires a DOAH ALJ to conduct a local public hearing pursuant to Chapter 120, Florida Statutes. The hearing "shall include oral and written comments on the petition pertinent to the factors specified in paragraph (e)." Section 190.005(1)(d) specifies that the petitioner must publish notice of the local public hearing once a week for the four successive weeks immediately prior to the hearing. District 2 and SMR have met those requirements. Under Section 190.005(1)(e), FLAWAC must consider the following factors in determining whether to grant or deny a petition for the establishment of a CDD: Whether all statements contained within the petition have been found to be true and correct. Whether the establishment of the district is inconsistent with any applicable element or portion of the state comprehensive plan or of the effective local government comprehensive plan. Whether the area of land within the proposed district is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developable as one functional interrelated community. Whether the district is the best alternative available for delivering community development services and facilities to the area that will be served by the district. Whether the community development services and facilities will be incompatible with the capacity and uses of existing local and regional community development services and facilities. Whether the area that will be served by the district is amenable to separate special-district government. Factor 1 Some statements in the original petition to contract District 2 were not true and correct and had to be revised. As revised, all statements in the petition were shown by the evidence to be true and correct. All statements in the petition to establish District 5 were shown by the evidence to be true and correct. There was no evidence to the contrary. Factor 2 In these cases, the evidence was that the proposed contraction of District 2 and establishment of District 5 are not inconsistent with any applicable element or portion of the state comprehensive plan or of the local government comprehensive plan. There was no evidence to the contrary. (A different and more detailed review is required to determine that future development within the proposed CDDs will be consistent with all applicable laws and local ordinances and the Manatee County Comprehensive Plan. Establishment of a CDD does not constitute and should not be construed as a development order or any other kind of approval of the development anticipated in the CDD. Such determinations are made in other proceedings.) Factor 3 In these cases, the evidence was that the areas of land within District 2, as proposed to be contracted, and within proposed District 5 are of sufficient size, are sufficiently compact, and are sufficiently contiguous for each proposed CDD to be developable as a functional, interrelated community. There was no evidence to the contrary. Factor 4 In these cases, the evidence was that District 2, as proposed to be contracted, and proposed District 5 are the best alternatives available for delivering community development services and facilities to the areas that will be served by those two proposed CDDs. There was no evidence to the contrary. Factor 5 In these cases, the evidence was that the proposed community development services and facilities will not be incompatible with the capacity and uses of existing local and regional community development services and facilities. There was no evidence to the contrary. Factor 6 In these cases, the evidence was that the areas to be served by District 2, as proposed to be contracted, and proposed District 5 are amenable to separate special-district government. There was no evidence to the contrary. REPORT AND CONCLUSIONS SUBMITTED this 22nd day of January, 2001, in Tallahassee, Leon County, Florida. ___________________________________ J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of January, 2001. COPIES FURNISHED: Erin McCormick Larrinaga, Esquire Fowler, White, Gillen, Boggs, Villareal and Banker, P.A. Post Office Box 1438 Tampa, Florida 33601-1438 Jose Luis Rodriguez, Esquire Governor's Legal Office The Capital, Room 209 Tallahassee, Florida 32399-0001 Donna Arduin, Secretary Florida Land and Water Adjudicatory Commission Executive Office of the Governor 2105 The Capitol Tallahassee, Florida 32399 Barbara Leighty, Clerk Growth Management and Strategic Planning The Capitol, Suite 2105 Tallahassee, Florida 32399 Charles Canaday, General Counsel Office of the Governor Department of Legal Affairs The Capitol, Suite 209 Tallahassee, Florida 32399-0001
The Issue The issue presented for consideration herein concerns the standing of Petitioners to challenge the development order entered by the City of Alachua, Florida, granting DPI approval to Turkey Creek, Inc. That order dates from June 15, 1982. In particular, the Motion to Dismiss filed by Respondent Turkey Creek asserts that Petitioners are not members of the class of individuals delineated in Subsection 380.07(2), Florida Statutes, who would have standing to appeal the development order; in that Petitioners are neither "owners" or within other classifications of individuals who might file an action before the Florida Land and Water Adjudicatory Commission, which action is in opposition to the grant of the development order. RECORD Although a transcription was not made of the motion hearing, the following items which are attached to this Recommended Order constitute the factual basis for this decision. Attachment "A" is the Notice of Appeal of development order; Attachment "B" is the petition for review of development order with its attendant exhibits; Attachment "C" is the letter of referral from the Secretary to the Florida Land and Water Adjudicatory Commission to the Director of the Division of Administrative Hearings; Attachment "D" is the answer and affirmative defenses to the petition filed by Turkey Creek; Attachment "E" is the motion to dismiss filed by Turkey Creek; Attachment "F" is the notice of hearing related to the motion to dismiss; and Attachment "G" is the supplemental authority offered by Turkey Creek. For purposes of this Recommended Order, notwithstanding the answer of Turkey Creek wherein facts of the Petition are denied, the factual allegations related to the standing issue as made through the petition are deemed to be factually accurate, with the exception of those contentions pertaining to conclusions of law.
Findings Of Fact On January 4, 1982, the Turkey Creek Development of Regional Impact Application for Development Approval was filed with the City of Alachua, Florida, City Commission and North Central Florida Regional Planning Council in accordance with Chapter 380, Florida Statutes. It was filed by Turkey Creek, Inc., as applicant. Turkey Creek, Inc. is wholly-owned by Norwood W. Hope, N. Forest Hope and A. Brice Hope. Turkey Creek proposes to develop 5,300 residential dwelling units on 976+- acres, which constitutes a residential development of regional impact according to Chapter 380, Florida Statutes, and Chapter 22F-2.10, Florida Administrative Code, involving real property located in the City of Alachua, Alachua County, Florida, as included in the property description found as an exhibit to the petition document which is Attachment "B" to this Recommended Order. Prior to June 15, 1982, the City of Alachua had previously duly zoned or did simultaneously zone the said 976+-acres PUD and commercial to permit the development as specified in the said application. June 15, 1982, is the date when the City of Alachua adopted the development order for the Turkey Creek Development of Regional Impact. Following the action by the City of Alachua, the Petitioners in this cause, in the person of counsel, filed a notice of appeal of the development order. This appeal was made on June 28, 1982, and on that same date, the petition for review of that development order was filed with the State of Florida, Land and Water Adjudicatory Commission. On August 4, 1982, the matter was transmitted to the division of administrative Hearings for formal hearing by action of the Office of the Office of the Secretary of the Florida Land and Water Adjudicatory Commission. The case was subsequently assigned to this Hearing Officer and a motion hearing was conducted to consider a dismissal of this action based upon Respondent Turkey Creek's allegation that the Petitioners lack standing. The motion hearing was conducted on September 2, 1982. Petitioners are owners of real property included within the Turkey Creek development of regional impact and their property is adjacent or in close proximity to properties which were the subject of the City's zoning decision made in conjunction with approval of the development order.
The Issue The issue before the Florida Land and Water Adjudicatory Commission (FLWAC) in this proceeding is whether the Petition to Establish the Myakka Ranch 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.
The Issue Whether the Petition to establish the Central Viera Community Development District meets the criteria set forth in Chapter 190, Florida Statutes, and Chapter 42-1, F.A.C.
Findings Of Fact The Petitioner is seeking the adoption of a rule by the Commission to establish a community development district ( "CDD" or "District") of approximately 5,731 acres located entirely within unincorporated Brevard County. The proposed District would be located generally west of I-95, south of Barnes Boulevard, north of Lake Washington, and east of the Florida Power and Light Company electrical transmission line transversing the A. Duda & Sons landholdings in Brevard County. The proposed District would be eligible to exercise all powers set forth in Chapter 190, Florida Statutes, including, but not limited to, the ability to finance, own, operate and maintain certain community facilities and services. Currently, the lands to be included within the District are principally undeveloped, although existing development includes the Florida Marlins Spring Training Facility. Existing land uses adjacent to the proposed District include residential use east of the District, with commercial use along major roadways. Land west and south of the District is in agriculture use, and land north of the District is in agriculture and mixed uses. Existing development adjacent to the District includes the Brevard County Government Operations Center, the Space Coast Stadium, and the Brevard County School Board Complex. The future general distribution, location, and extent of the public and private land uses proposed by the Petitioner for the lands within the District have been included in an Application for Development Approval of a substantial deviation to the Viera Development of Regional Impact (DRI). All of the land within the proposed District is either currently included within the approved Viera DRI or will be included upon approval of the substantial deviation to the Viera DRI. The existing land uses within the proposed District are consistent with the adopted Brevard County Comprehensive Plan, and the land uses proposed for the District in the DRI substantial deviation are consistent with the Plan as it would be amended by a proposed Plan Amendment that has been submitted to the County for approval. The proposed development plan for the lands within the District contemplates the construction of approximately 11,954 residential units; 1,415,000 square feet of office space; 736,800 square feet of office warehouse/light industrial space; 1,685,000 square feet of retail services space; 550 hotel rooms; 4,800 movie theater seats; a 154.6-acre educational campus; 162.4 acres of institutional uses; a 148.0-acre golf course; 298.5 acres of parks and pathways; and 20.5 acres of private recreation. The following real property within the external boundaries of the proposed District is excluded from the District: a parcel known as the "Town Center"; Veterans Administration (VA) Hospital Site; Brevard County Government Operation Center; Brevard County School Board Administration Complex; Brevard South Judicial Facility; Space Coast Stadium and parking lot; Wickham Road; Lake Andrew Drive; St. Johns Street; and Stadium Parkway. This property, with the exception of the "Town Center," is excluded from the District because it is currently owned by governmental bodies. Because of the nature and scope of development and length of time necessary for its buildout, the "Town Center" parcel has also been excluded from the District. The Petitioner currently intends for the District to fund the construction of a water management system, roadways, water and sewer systems; reuse facilities, and public facility landscaping. In addition, the District may fund the construction of certain recreational facilities. Once completed, some of the facilities will be owned, operated, and/or maintained by the District. Some facilities may be dedicated to other governmental entities, which will operate and maintain them. The Petitioner intends for the District to own, operate, and maintain the water management system and certain recreational facilities which may be built. The water and sewer systems will be dedicated to the City of Cocoa and Brevard County, respectively, and will be operated and maintained by these local governments. Reuse facilities will be owned, operated, and maintained by the District or other governmental entity. The Petitioner plans for the District to construct certain arterial roadways and other road improvements in phases as traffic warrants. The District will maintain roadways until they are dedicated to and accepted by Brevard County or another governmental entity, at which time the County or another governmental entity will assume maintenance responsibility. The Petitioner also intends that the District provide certain public facility landscaping, which will be maintained by the District or another governmental entity. The estimated cost in 1994 dollars for all identified capital improvements is $145,276,000, with construction scheduled to take place from 1995 through 2015. Actual construction costs and timetables may vary, due in part to the effects of future changes in economic conditions upon labor, services, materials, interest rates, and general market conditions. The Petitioner expects that the District will finance such services and improvements through the issuance of tax-exempt bonds. The debt issued by the District is expected to be repaid from the proceeds of non-ad valorem special assessments imposed on benefitted property within the District. In other cases where infrastructure provides a specific revenue source from users of those systems, bonds may be repaid with those user fees. The Petitioner has no current plans for the District to issue general obligation bonds or to impose ad valorem taxes. Statutory Criteria for the Establishment of the District Section 190.005 (1)(e), Florida Statutes, requires the Commission to consider six factors in making its determination to grant or deny the Petition to establish the District. The evidence presented on these factors is summarized in the following paragraphs. Whether all statements contained within the Petition have been found to be true and correct. Petitioner's Composite Exhibit 13 was identified for the record as a copy of the Petition and its attachments as filed with the Commission. Maloy testified that he had reviewed the contents of the Petition and approved its filing, and that the only correction required was to Attachment 6. Glatting testified that a typographical error in the number of hotel rooms on the "CDD Land Uses" chart in Attachment 6 should be corrected. Instead of "300" hotel rooms, it should state "550" rooms. With the change set forth in the previous paragraph, all statements in the Petition and its attached exhibits were shown to be true and correct. Whether the creation of the District is inconsistent with any applicable element or portion of the State Comprehensive Plan or of the effective local government comprehensive plan. Glatting reviewed the establishment of the proposed District from a planning perspective for consistency with the State Comprehensive Plan, Chapter 187, Florida Statutes, and the Brevard County Comprehensive Plan, adopted pursuant to Chapter 163, Part II, Florida Statutes In addition, McDonald reviewed the establishment of the District from an economic perspective for consistency with the State and local comprehensive plans. Moyer reviewed the establishment of the District from a management perspective for consistency with the State Comprehensive Plan. State Comprehensive Plan From a planning perspective, Goals 10, 16, 21, and 26 of the State Comprehensive Plan and policies supporting these goals are particularly relevant to the establishment of the District. Goals 18 and 21 and the policies supporting those goals are relevant to the establishment of the District from an economic perspective. Goal 21 is also relevant to the establishment of the District from a management perspective. Policy 13 under Goal 10, "Natural Systems and Recreational Lands," encourages the use of public and private financial resources for the development of state and local recreational opportunities. The District may, with the consent of the County, provide community recreational facilities. Goal 16, "Land Use," recognizes the importance of locating development in areas with the fiscal ability and service capacity to accommodate growth. The District will have the fiscal ability and service capacity to efficiently provide an excellent quality and range of facilities and services to development in a rapidly growing area of Brevard County. Goal 18, "Public Facilities," directs the State to protect the investments in public facilities that already exist, and to plan for and finance new facilities to serve residents in a timely and efficient manner. The District will provide facilities and services in a timely and efficient manner to the area within Brevard County served by the District, allowing the County to focus its resources outside the District and thus, provide facilities and services to County residents in a timely and efficient manner. The "Governmental Efficiency" goal, Goal 21, requires that Florida governments provide the services required by the public in an economic and efficient manner. The District will have the fiscal capability to provide quality public services to those who benefit from and pay for those services. The size and configuration of the District would allow for the delivery of these facilities in an efficient, cost-effective manner. In addition, because it is a limited-purpose local government, the District can provide focused delivery, management, and maintenance of these services more efficiently than a general- purpose government. Goal 26, "Plan Implementation," encourages the integration of systematic planning into all levels of government, with emphasis on intergovernmental coordination. The development plan for the District contemplates the delivery of improvements in coordination with the general- purpose local governments in the area. In addition, Section 189.415, Florida Statutes, requires the District to file annual Public Facilities Reports with Brevard County, which the County may use and rely on in its comprehensive plan. From a planning perspective, all decisions of the District are made at board meetings which are publicly noticed and open to the public, maximizing input from landowners and residents of the District. The establishment of the proposed District is not inconsistent with any applicable goal or policy of the State Comprehensive Plan. Local Comprehensive Plan From a planning perspective, the Intergovernmental Coordination, the Capital Improvements, and the Recreation and Open Space Elements of the Brevard County Comprehensive Plan relate specifically to the establishment of the District. From an economic perspective, the Capital Improvements Element applies directly to the establishment of the District. The Intergovernmental Coordination Element and supporting policies acknowledge the need for alternative providers of facilities and services and require the County to pursue interlocal agreements to ensure a review of proposals for public facility improvements. The Petition to establish the District contemplates coordination with the general-purpose governments for the provision and maintenance of facilities and services. In addition, the District must file an annual Public Facilities Report with the County, and all District facilities will be subject to the County's comprehensive plan, building codes, and land development regulations for public facilities. The objectives and policies of the Capital Improvements Element require that the County pursue new funding sources for public improvements, and that new growth contribute its fair share of needed improvements. The District provides an alternative means of financing a fair share of the facilities and services necessary for community development. The goal of the Recreation and Open Space Element requires the County to attain public and private support for the acquisition, operation, and maintenance of recreational opportunities and open space area. The proposed development plan for the land within the Central Viera CDD includes 298.5 acres of pathways and parks. The District may also, with the approval of the County, construct and maintain recreational facilities. Nothing in the Local Comprehensive Plan precludes the establishment of a community development district. The establishment of the District is not inconsistent with any of the applicable goals, objectives, and policies of the Brevard County Comprehensive Plan. Whether the area of land within the District is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developable as one functional interrelated community. Testimony on this criterion was provided by Greene, Glatting, McDonald, and Moyer. The lands that comprise the District consist of approximately 5,731 acres, located entirely within unincorporated Brevard County, and generally west of I-95, south of Barnes Boulevard, north of Lake Washington, and east of the Florida Power and Light electrical transmission line transversing the A. Duda & Sons landholdings. All of the land within the proposed District is part of a planned "new town," which is a form of development containing all types of land uses for home, work, recreational, and daily life. The land within the proposed District is either currently included within the approved Viera DRI or will be included upon approval of the substantial deviation to the DRI and is master planned to be a part of a functional interrelated community with a balanced mix of uses to support the projected population. Although some land within the external boundaries of the proposed District is excluded from the District because it is owned by governmental entities or because of the nature and scope of development and the length of time for buildout, the exclusion of this land will not affect the contiguity or compactness of the proposed District or otherwise interfere with the ability of the District to serve as one functional interrelated community. The 5,731-acre District is of sufficient size from a planning perspective to require all the basic facilities and services of a community. Moreover, the size and configuration of the District would accommodate the provision of the proposed facilities and services in a cost-effective manner. The District will provide its residents and landowners with the benefits of phasing of the District's services over a time frame which takes advantage of the lower cost of long-term capital, as well as providing economies of scale to absorb the annual operating costs of District administration and to efficiently apportion the costs of improvements. The proposed District is also compact in nature. The configuration of the District allows for the natural extension of infrastructure and services across the land area over time to serve the needs of the residents. The property is sufficiently contiguous when the proposed facilities and services can be designed, permitted, constructed, and maintained in a cost efficient, technically-sound manner. The proposed District is sufficiently contiguous to allow for the efficient design and use of infrastructure. From engineering, planning, economics, and management perspectives, the area of land to be included in the District is of sufficient size and is sufficiently compact and contiguous to be developed as a functional interrelated community. Whether the District is the best alternative available for delivering community development services and facilities to the area that will be served by the District. It is presently intended that the District will fund the construction of a water management system, roadways, water and sewer systems, reuse facilities, and public facility landscaping. It may also, with the approval of the County, construct certain recreational facilities. Once completed, certain of these improvements will be dedicated to other governmental entities to own, operate, and/or maintain. The stormwater management system and recreational facilities will be owned and maintained by the District. Certain water and sewer facilities to be constructed by the District will be dedicated to the appropriate general-purpose local government to own, operate, and maintain. In addition, reuse facilities will be owned, operated, and maintained by the District or the general- purpose local government. The District will maintain roadways until they are dedicated and accepted by Brevard County or other governmental entity, at which time the County or other governmental entity will assume maintenance responsibility. The public facility landscaping to be provided by the District will also be maintained by the District or the general-purpose local government. It is expected that the District will issue bonds to finance these services and improvements. These bonds will be repaid from the proceeds of special assessments on benefitted property within the District. In cases where improvements provide a specific revenue source from uses of those systems, bonds may be repaid with such funds. Use of special assessments and user fees will ensure that those benefitting from District services help pay for those services. The following five alternatives to the proposed District for providing the necessary facilities and services were identified: (1) a municipal service taxing unit (MSTU)/municipal service benefit unit (MSBU); (2) a dependent special district; (3) the County; (4) the Developer; or (5) a homeowners' association. In evaluating alternative methods for delivering community development facilities and services, factors to consider include whether an alternative is able to provide the best focused service and facilities; whether the alternative has an entity to manage the delivery; whether the alternative is a stable provider of facilities and services and can provide a long-term perspective; and; and whether the alternative can secure long-term financing to pay for all benefits at a sustained level of quality. Public Alternatives A MSTU/MSBU generally focuses on only one service or facility, which is not sufficient to serve the comprehensive development of a new community. It also requires County administration of the operation and maintenance of the infrastructure. Moreover, MSTU/MSBU debt is debt of the relevant County, and MSTU/MSBU taxes count against the County's millage cap. The County would be relieved of direct administrative duties and costs related to the provision of the proposed facilities and services if the proposed District is established. In addition, District debt does not affect the County's borrowing capacity, and District taxes do not count against the County's millage cap. Although a dependent special district may provide more than one service or facility, it would still require County involvement, and dependent special district taxes would count against the County's millage cap. Debts incurred by a dependent special district are debts of the County, as are those of the MSTU/MSBU. In contrast, debts of a CDD are not debts of the County, and CDD taxes do not affect the County millage cap. The County, as a general-purpose government, has a broad range of responsibilities to its citizens. If the County provides all of the proposed services and facilities to the area to be included with the District, this may mean that other portions of the County would not be as fully served. In contrast, the District, as a special-purpose government created solely to provide infrastructure, can offer a more focused delivery of facilities and services. It does not have the demands of general purpose local governments for such things as social services and law enforcement. Furthermore, use of the District is the best way to help assure that growth pays for itself. Those especially benefitting from the facilities and services pay their fair share of the cost, rather than spreading the entire cost over residents of the entire County. Private Alternatives The District is also superior to the Developer in the provision of long-term financing of infrastructure. Private funding is generally more difficult and expensive to secure. In contrast to the Developer, which may not be involved in the project upon completion of development, the District would be a perpetual entity. It would continue to exist to provide facilities and services of high quality in a timely and cost-effective manner, also ensuring a longer life for the facilities. The District would also be a superior alternative to a homeowners' association to secure the long-term financing for facilities. A homeowners' association generally becomes involved only after the planning and construction of improvements is complete because it cannot provide the necessary financing program. In addition, a homeowners' association is usually managed by volunteers, while the District would employ a professional manager. This professional involvement allows for the independent planning, construction, financing, administration, operations, and maintenance of facilities within the District. A homeowners' association also would not have collection and enforcement authority for defaults in assessments and charges comparable to that authorized for the District in Chapter 190, Florida Statutes Therefore, an association is a less stable long-term maintenance entity. The Viera Company has experience in working with a CDD and Company staff stated that the Viera East CDD, which provides facilities and services to the land in the Viera DRI east of I-95, has lived up to the Company's expectations and is providing necessary public services in a timely manner to the development and its residents. The Company expects that the proposed Central Viera CDD will similarly benefit landowners and residents in the years ahead, particularly as The Viera Company ceases to be the major landowner. None of the reasonable public or private alternatives provides the same cost-efficient, focused delivery and long-term maintenance and management of the proposed public facilities as would the District. The District is the best alternative available for delivering community services and facilities to the area. Whether the community development services and facilities of the District will be incompatible with the capacity and uses of existing local and regional community development services and facilities. There is no planned duplication of facilities and services. There are existing trunk water mains, reuse lines, and sewer interceptors within or adjacent to the area to be included within the District which are owned by a general-purpose local government. The District will supply additional facilities and services made necessary for development that are not provided by local general-purpose governments or other governmental entities. The project infrastructure will be designed and constructed to State or County standards and must also be consistent with the local comprehensive plan, building codes, and land development regulations. From engineering, planning, economic, and management perspectives, the services and facilities to be provided by the District will not be incompatible with the capacity and uses of existing local and regional community development services and facilities. Whether the area that will be served by the District is amenable to separate special-district government. The area to be served by the District requires basic infrastructure for development to occur. The District is of sufficient size and is sufficiently compact and contiguous to allow infrastructure to be provided and maintained in an efficient and cost-effective manner. These services and infrastructure have been carefully planned to avoid duplication of existing local and regional facilities and services and to maximize efficiency of cost and effort to deliver such improvements. From an engineering perspective, having a separate unit of special- purpose government enhances the orderly provision of facilities and their long- term maintenance as well as the ability of the government to respond to the needs of the residents of the District. From a financial perspective, it is expected that the District will levy assessments and fees on the landowners and residents within the District who benefit from the improvements in order to fund the construction and maintenance of the improvements. The District will not be dependent on the County for funding, nor is the County liable for any obligations of the District. Therefore, it is more economically and functionally efficiently to have a separate special-district government to manage the activities related to the improvements to the land within the District. From engineering, planning, economic, and management perspectives, the area to be included within the District is amenable to separate special-district government. From engineering, planning, economic, and management perspectives, the establishment of the District meets all of the statutory criteria in Section 190.005(1)(e), Florida Statutes The record also shows the type and scope of development that would necessitate the establishment of the District if the pending substantial deviation to the existing DRI were not approved. If the pending substantial deviation to the Viera DRI were not approved, significant development of the area within the boundaries of the proposed District that is consistent with the existing County comprehensive plan is possible and appears likely. The land within the proposed District is in an urbanizing area of Brevard County. There is a developed community, Suntree, adjacent to the proposed District on the east. The Viera East development, located on the east side of I-95, is also well underway. The existing Brevard County Governmental Operations Center, Brevard County School Board Complex, and the Space Coast Stadium, as well as the proposed judicial facility and Veterans Administration Hospital, while not within the boundaries of the proposed District, will generate the need for new development in the area. Extensive development is authorized by the existing comprehensive plan. The comprehensive plan authorizes approximately 20,825 dwelling units with an assumed population of 51,022 in this area. In addition, areas within the proposed District designated as mixed-use may include commercial, professional, office, institutional, conservation, recreation, and public facility uses as well as residential use. Although the nature of the development under the existing comprehensive plan is more residential than proposed by the substantial deviation to the DRI, there would still be a need for water management, water and sewer systems, recreation and open space, and some roadway improvements and landscaping. Because these necessary facilities do not currently exist, their provision by the District would not be incompatible with existing facilities. The land is sufficiently compact and contiguous to be developed as a functional interrelated community and is amenable to separate special-district government. In fact, if the property is developed as is allowed under the comprehensive plan, the use of the District to provide infrastructure is as important, if not more important, than if the property is developed as proposed under the substantial deviation to the DRI. The District could provide overall coordination and oversight to avoid duplication of facilities. The District would continue to be the best alternative for providing the necessary public facilities and service in an efficient, cost-effective manner. With or without the proposed amendments to the DRI and the comprehensive plan, the establishment of the District meets the statutory criteria and is necessary to ensure the timely, efficient, cost-effective, and long-term provision of infrastructure to this area. Public Comment on the Petition Public comment related to the criteria was received in the afternoon session. Mr. Mel Scott, a Planner with Brevard County, asked for clarification of the cost of infrastructure contained in Mr. Greene's testimony. Greene testified on redirect examination that the total cost of infrastructure for the development proposed under the substantial deviation to the DRI is $145,276,000. He also testified that if the DRI were not approved and development were to occur that is consistent with the existing comprehensive plan, the cost of infrastructure would be approximately 11.77 percent less or $18 million less. Greene stated that this reduction results largely from lower costs of certain road improvements that would not appear to be necessary for development under the comprehensive plan and a reduction in the size of the reuse system and the capacity needed for the wastewater treatment plant. Scott also inquired about the ability of the District to issue industrial revenue bonds. Moyer testified on redirect examination that in his experience in managing 46 CDDs, he is not aware of any of them applying for a portion of either the state or regional allocation of these bonds or receiving a legal opinion that it could issue these types of bonds. He explained that in his view there is no reason for a district, which is limited to projects for public purposes, to use industrial revenue bonds because they are primarily for private activity. Mr. Mundhenk asked that the impact of the District upon the taxpayers of the rest of the County be taken into consideration and asked for financial assurance from The Viera Company that County taxpayers would not be held responsible for any debts of the District. McDonald testified on redirect examination that the costs of the establishment of the District to Brevard County and its citizens are offset by the filing fee and other fees paid to the County. He stressed that no debt of the District can be placed on the citizens of the County. Agency Comment on the Petition The Secretary of the Commission distributed copies of the Petition to the Department of Community Affairs (DCA) and the East Central Florida Regional Planning Council (ECFRPC) and requested that these agencies review the Petition. By letter dated October 5, 1994, Secretary Linda Shelley of the DCA replied that, other than an inconsistency in the number of proposed hotel rooms within the District and proposed in the substantial deviation to the DRI, the DCA had no concerns regarding the proposed District. This inconsistency was due to a typographical error in Attachment 6 to the Petition and was corrected in testimony as set forth above. The ECFRPC responded to the Commission Secretary's request by letter dated December 1, 1994. First, the ECFRPC concluded that the "district and development it will support are consistent with the state and regional comprehensive plans," and that the development will be consistent with the Brevard County Comprehensive Plan as amended by the proposed comprehensive plan amendment. Second, the ECFRPC stated that the District is of sufficient size, compactness, and contiguity to be developed as a functional interrelated community. Specifically, the ECFRPC has no objection to the exclusion of the "Town Center properties." Third, the ECFRPC stated that the proposed District will be the best alternative for delivery of the necessary facilities and service because it "will provide the best opportunity for minimizing fiscal impacts to the public service providers." The ECFRPC specifically stated that "we support the creation of the Central Viera CDD and, in fact, would be concerned if the proposed district were not approved as it would require that these facilities be made available by other, presently unknown means." The ECFRPC found no incompatibilities of the proposed facilities and services with the capacity and uses of existing local and regional services and facilities. The ECFRPC noted the Petition reflects that all of the landowners within the District are amenable to its creation, and that future landowners will be made aware of the existence of the District and its obligations before purchasing property within the District. Other requirements imposed by statute or rule. Chapter 190, Florida Statutes, and Chapter 42-1, F.A.C., impose certain specific requirements set forth below regarding the Petition and other information to be submitted to the Commission. A. Elements of the Petition Section 190.005(1)(a)1, Florida Statutes, requires the Petition to contain a metes and bounds description of the external boundaries of the District. Petitioner's Composite Exhibit 13 contains such a description. This statutory section also requires that any property within the external boundaries of the District which is to be excluded from the District be specifically described and the last known addresses of all owners of this property be listed. Petitioner's Composite Exhibit 13 includes this information. Section 190.005(1)(a)2, Florida Statutes, requires the Petition to contain the written consent to establishment of the District of the owners of 100 percent of the real property to be included in the District. Petitioner's Composite Exhibit 13 contains the written consent of A. Duda & Sons, Inc./The Viera Company; John A. Bell, Trustee, of the Trust Agreement of John A. Bell dated October 29, 1993; Becky N. Bell, Trustee, of the Trust Agreement of Becky N. Bell dated October 29, 1993; Freedom Christian Center, Inc.; Temple Israel of Brevard County, Inc.; and Marlins-Viera, the owners of 100 percent of the real property to be included in the District. Section 190.005(1)(a)3, Florida Statutes, requires the Petition to contain the names of the five persons, all residents of the State of Florida and citizens of the United States, who will serve on the initial Board of Supervisors. The five persons designated in the Petition are: John R. Maloy 135 Highway A1A N., #135 Satellite Beach, Florida 32937 Tracy Duda 1906 Whitehall Drive Winter Park, Florida 32792 David Duda 7979 Dunstable Circle Orlando, Florida 32817 Thomas Duda 11700 Pinewood Lakes Drive Ft. Myers, Florida 33813 Stephen L. Johnson 250 South Sykes Creek Parkway #603 Merritt Island, Florida 32952 All of the designees are residents of the State of Florida and citizens of the United States. Section 190.005(1)(a)4, Florida Statutes, requires that the Petition contain the proposed name for the District. The Petition proposes to establish the "Central Viera Community Development District. Section 190.005(1)(a)5, Florida Statute, requires that the Petition show current major trunk water mains and sewer interceptors and outfalls if in existence. Petitioner's Composite Exhibit 13 shows the location of those facilities within and adjacent to the District. Section 190.005(1)(a)6, Florida Statutes, requires the Petition to set forth the proposed timetable for construction of services and facilities and the estimated cost for such construction. Petitioner's Composite Exhibit 13 contains this information in a table entitled "Central Viera CDD: Estimated Infrastructure Construction Schedule and Cost". Section 190.005(1)(a)7, Florida Statutes, requires the Petition to designate the future general distribution, location and extent of public and private uses of land. Petitioner's Composite Exhibit 13 provides that information. The Petition contains all information required by Section 190.005(1)(a)1.-7., Florida Statutes. Economic Impact Statement Section 190.005(1)(a)8, Florida Statutes, requires the Petition to include an economic impact statement ("EIS") which meets the requirements of Section 120.54(2), Florida Statutes. The EIS prepared by the Petitioner is attached to Petitioner's Composite Exhibit 13. The Petitioner's EIS meets the requirements of Sections 120.54(2)(c)1. and 120.54(2)(c)2., Florida Statutes, that an EIS include an estimate of the costs and benefits of the establishment of the District to all affected agencies and persons. It concludes that the economic benefits of establishing the District exceed the economic costs to all affected agencies and persons. Beyond administrative costs related to rule adoption, the State and its citizens would incur no costs from establishment of the District. The District would require no subsidies from the State to fund District improvements. Benefits would include improved planning and coordination of development, as well as long- term professional management and maintenance of District facilities. Costs of the establishment and operation of the District to Brevard County and its citizens should be offset by the $15,000 filing fee and other fees paid by the Petitioner or the District. The County would not be responsible for the debt service on any bonds used to fund District improvements. Citizens of the County would receive the benefits of planned development, and the County would be relieved of the fiscal and administrative burden of providing the improvements provided by the District. The Petitioner would incur substantial costs to create the District and would pay substantial sums in non-ad valorem assessments as the largest landowner in the District in the initial stages of development. In addition, the Petitioner would provide certain rights-of-way and easements. The Petitioner would benefit from the establishment of the District because of increased access to bond financing. Landowners within the District would pay District special assessments or fees for certain facilities; however, these facilities would be required for development regardless of the existence of the District. Benefits to these landowners/consumers would include a higher level of public services and amenities than might otherwise be available, completion of improvements provided by the District on a timely basis, and a share of control over decisions involving community development services and facilities. The EIS also meets the requirements of Sections 120.54(2)(c)3. and 120.54(2)(c)4., Florida Statutes, that the EIS include an estimate of the impact of the proposed rule on competition, the open market for employment, and on small business as defined in the Florida Small and Minority Business Assistance Act of 1985. The implementation of this rule is not expected to have an adverse impact on competition and is expected to have only a nominal effect on the open market for employment and small business. The EIS also meets the requirement of Section 120.54(2)(c)5., Florida Statutes, that the statement include a comparison of the costs and benefits of the proposed rule to the probable costs and benefits of not adopting the rule. Where there are reasonable alternative methods for achieving the purpose of the rule which are not precluded by law, Sections 120.54(2)(c)6. and 120.54(2)(c)7., Florida Statutes, require than an EIS describe these alternatives and make a determination of whether any of the alternatives are less costly or less intrusive than the proposed method. Petitioner's EIS meets these requirements and concludes that none of the reasonable public or private alternatives provides the same cost-efficient, focused delivery, and long-term management and maintenance of the public facilities and services to be provided by the District. The District is the preferred alternative because it is a special-purpose unit of local government with a single purpose: the provision of infrastructure and services for planned new communities. The requirement of Section 120.54(2)(c)8., Florida Statutes, that the EIS include a detailed statement of the data and methodology used in preparing the analysis is also met. The Petitioner's EIS meets all the requirements of Section 120.54(2), Florida Statutes Other Requirements Petitioner has complied with Section 190.005(1)(b), Florida Statutes, which requires that the Petitioner submit a copy of the Petition and pay a filing fee to the local general-purpose government. Section 190.005(1)(d), Florida Statutes, requires the Petitioner to publish notice of the local public hearing in a newspaper of general circulation in Brevard County for the four consecutive weeks immediately prior to the hearing. The notice was published in Florida Today for four consecutive Wednesdays beginning on November 9, 1994. Rule 42-1.010, Florida Administrative Code, requires the Commission to cause to be published a Notice of Receipt of Petition in the Florida Administrative Weekly. Such notice was published on November 4, 1994. Rule 42-1.011(1)(a), F.A.C., requires the Petitioner to furnish proofs of publication of the notice of local public hearing to the Secretary of the Commission. The original proofs of publication were hand delivered to the Secretary of the Commission as required on December 2, 1994. Rule 42-1.011(1)(b), F.A.C., requires the Petitioner to mail a copy of the notice of local public hearing to all persons named in the proposed rule, the affected local government, and the Secretary of the Department of Community Affairs. Such individual notices were mailed as required by the rule.
Conclusions A local public hearing in the above styled matter was held before the Division of Administrative Hearings by its duly designated Hearing Officer Daniel M. Kilbride, on December 7, 1994, at the Brevard County Government Center, 2725 St. Johns Street, Building C, Second Floor "Hearing Room," Viera, Florida. The hearing was conducted pursuant to Section 190.005, Florida Statutes (Florida Statutes), for the purpose of taking testimony and public comment and receiving exhibits on the Petition of The Viera Company ("Petitioner") to establish the Central Viera Community Development District ("District"). This report is prepared and submitted to the Florida Land and Water Adjudicatory Commission ("Commission") pursuant to Section 190.005, Florida Statutes, and Rule 42-1.013, Florida Administrative Code (F.A.C.).
Recommendation Based upon the foregoing findings of fact and conclusions of law, the undersigned recommends that the Governor and Cabinet, sitting as the Florida Land and Water Adjudicatory Commission, pursuant to Chapters 190 and 120, Florida Statutes, and Chapter 42-1, Florida Administrative Code, establish the Central Viera Community Development District as requested by the Petitioner by formal adoption of the proposed rule attached to this Report of Findings and Conclusions as Exhibit 4. DONE and ENTERED this 28th day of December, 1994, in Tallahassee, Leon County, Florida. Daniel M. Kilbride Hearing Officer Division of Administrative Hearings 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of December, 1994.
The Issue The information-gathering hearing was convened for the purpose of determining the impact of Lake County’s Order denying a rezoning application (“Rezoning”) for the Lake Nellie Crossing Planned Unit Development, Lake County Case No. RZ-20-39-23 (“PUD”), whether the denial of the rezoning application was unreasonable or unfairly burdened the real property subject to Petitioner’s rezoning application, and whether some modification of Petitioner’s proposed use of the property or adjustment to the denial of the rezoning application could be reached.
Conclusions For Petitioner: Cecelia Bonifay, Esquire Thu Pham, Esquire Akerman LLP 420 South Orange Avenue, Suite 1200 Orlando, Florida 32801 For Respondent: David Langley, Esquire Lake County Attorney’s Office 315 West Main Street Tavares, Florida 32778 A number of non-party participants appeared at the Zoom conference and were permitted to offer documents and testimony pursuant to limitations established in the November 4, 2021, Notice of Hearing Before a Special Magistrate.
Recommendation Based upon the foregoing Stipulated Findings, the Findings Adduced at Hearing, and the Public Comment, the undersigned concludes that the proposed Rezoning satisfies the requirements of the Lake County Comprehensive Plan and Land Development Code, that there is no reason related to transportation safety to deny the Rezoning, and that the denial of the Rezoning, under the circumstances presented here, is unreasonable or unfairly burdens use of the Property. Therefore, it is recommended that the Lake County Board of County Commissioners approve the application for the Lake Nellie Crossing Planned Unit Development, Lake County Case No. RZ-20-39-23, subject to the conditions previously agreed upon by Lake Nellie, and the following: Stormwater facilities shall be vegetated with native species where possible. Sidewalks shall be constructed within the Project and along the Project’s frontage on Lakeshore Drive and Royal Vista Avenue. In addition to the left turn lane for southbound traffic, Lake Nellie and Lake County shall examine the feasibility of a right turn deceleration lane into the Project for northbound traffic on Lakeshore Drive. If determined to advance safety on Lakeshore Drive, the right turn lane shall meet Florida Department of Transportation specifications for design and length for a 40 MPH road. Land necessary for the construction of a right turn deceleration lane shall not be deducted from the open space calculation qualifying Lake Nellie for 102 units under the one dwelling unit per acre/50 percent open space requirement. If Lake County determines in the future that a roundabout at the entrance to the Project would facilitate traffic flow and enhance safety, Lake Nellie, or its successor homeowners’ association or maintenance entity, shall donate land within its ownership and control to Lake County for use as right- of-way for the roundabout. That donation shall not be deducted from the open space calculation qualifying Lake Nellie for 102 units under the one dwelling unit per acre/50 percent open space requirement. DONE AND ENTERED this 18th day of January, 2022, in Tallahassee, Leon County, Florida. S E. GARY EARLY Special Magistrate 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of January, 2022. COPIES FURNISHED: Melanie N. Marsh, Esquire Lake County Attorney's Office Post Office Box 7800 Tavares, Florida 32778 Thu Pham, Esquire Akerman LLP 420 South Orange Avenue, Suite 1200 Orlando, Florida 32801 David Langley, Esquire Lake County Attorney Office 315 West Main Street Tavares, Florida 32778 Jennifer Barker, Interim County Manager Lake County, Florida 315 West Main Street Tavares, Florida 32778 Cecelia Bonifay, Esquire Akerman Senterfitt 420 South Orange Avenue, Suite 1200 Orlando, Florida 32801 Nicole Blumenauer, Esquire Lake County Attorney's Office 315 West Main Street Tavares, Florida 32778 Sean M. Parks, Chairman Board of County Commissioners Lake County, Florida 315 West Main Street Tavares, Florida 32778
Findings Of Fact David W. Shepard is President of Loreda Development, Inc., which has developed Lake Suzy Estates on approximately 160 acres in the southwestern portion of DeSoto County, bordered by Kings Highway. Lake Suzy includes approximately 245 single family lots, 100 of which are sold, with a 42 acre man-made lake. High density and commercial areas are also designated within Lake Suzy. Development of Lake Suzy began in 1972 and is still underway. There are approximately 2 1/2 to 3 miles of asphalt-top roads within Lake Suzy. Construction of these roads began in 1974 and was completed in 1984. On or about September 26, 1985, Petitioner issued a Notice to Show Cause charging that, "Respondent has failed to construct the completed roads and drainage improvements in accordance with DeSoto County specifications, in violation of Section 498.033(2), F.S." The County Engineer for DeSoto County, George Solana, testified that roads and drainage improvements within Lake Suzy do not meet DeSoto County specifications, and Eugene E. Waldron, Jr., County Administrator, testified that the county has not accepted the roads or drainage improvements in Lake Susy for maintenance. In September, 1982, Shepard met with Solana and was informed of several conditions he had to meet to bring Lake Suzy's roads and drainage improvements into conformance with county specifications. Shepard then applied for a permit on September 16, 1982, which was issued on November 1, 1982, subject to conditions enumerated by Solana in a letter dated September 8, 1982. In March, 1985, Solana reviewed the roads and drainage improvements in Lake Suzy and found that most of the deficiencies and conditions noted in 1982 remained. Solana categorized these remaining deficiencies in a letter to the County Administrator, Waldron, dated March 28, 1985 and revised April 5, 1985, as follows: Drainage easements Cross-sections Materials and quality control Existing construction Inlet grates and steel end sections Street and traffic control signs Grassing Certificate of satisfactory completion Other deficiencies At the time of the hearing on February 20, 1986, only the drainage easement deficiencies had been corrected in accordance with DeSoto County specifications. Shepard testified he was fully aware of Solana's conditions in 1982 and the remaining deficiencies noted in 1985. Further, he had tried to correct the deficiencies and meet these conditions for compliance with DeSoto County specifications. He does not dispute that the deficiencies noted by Solana as still existing in 1985 would have to be corrected to comply with the county public works manual. The Order of Registration for Lake Suzy, issued by Petitioner on June 4, 1973, includes a Public Offering Statement which states that roads will be installed to the specification of DeSoto County and will be maintained by the county. As revised on October 21, 1980, the Public Offering Statement includes the same statement about road improvements in Lake Suzy. Respondent has failed to comply with this provision in its Public Offering Statement.
Recommendation Based upon the foregoing, it is recommended that Petitioner issue a Final Order which requires Respondent to comply with Section 498.033(2), Florida Statutes, within one year by bringing roadways within Lake Suzy into compliance with DeSoto County specifications and by requesting that DeSoto County accept said roads in their road maintenance system, and further providing that failure to comply with said Final Order within the one year period shall result in a one-year suspension of Respondent's registration and a civil penalty in the amount of $10,000. DONE and ENTERED this 14th day of March, 1986, at Tallahassee, Florida. DONALD D. CONN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of March, 1986. COPIES FURNISHED: Thomas L. Barnhart, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 David W. Shepard, President Loreda Development, Inc. 910 Kings Highway Lake Suzy, Florida 33821 James Kearney, Director Division of Florida Land Sales Condominiums and Mobile Homes 725 South Bronough Street Tallahassee, Florida 32301 Richard B. Burroughs, Jr., Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 APPENDIX Rulings on Petitioner's Proposed Findings of Fact: 1 Adopted in Finding of Fact 1. 2-3 Adopted in Finding of Fact 8. 4 Adopted in Finding of Fact 6. 5 Adopted in Finding of Fact 7. 6-7 Accepted although not necessary as a finding of fact. The weight of the evidence supports Petitioner's position after considering all evidence presented by Respondent. 8 Adopted in part in Finding of Fact 1. Rulings on Respondent's Proposed Findings of Fact: 1-3 Rejected after considering all evidence presented. Respondent's position is not based on competent substantial evidence.
Findings Of Fact Respondent, Woodland, is made up of property owners in Woodland Lakes subdivision, an area abutting on Woodland Bayou, situated off Pensacola Bay in Santa Rosa County, Florida. Petitioner, Margaret B. Miller, owns property directly across the channel which forms the entrance to Woodland Bayou and which is the proposed location for the bulkhead and riprap forming the subject matter of this dispute. Mrs. Miller and her late husband purchased their property, which is not located in Woodland Lakes subdivision, in 1957. Their lot is located on Pensacola Bay and at the time she and her husband purchased the property, they were looking for an area that had the special characteristics of this lot she now owns. It included big trees, a gentle slope to the Bay, and a view out over Pensacola Bay across a sandy peninsula which extended out into the bay a considerable distance and which they owned. At the time they made their purchase, Woodland Bayou opened into Pensacola Bay at the East End but the opening near Mrs. Miller's property was obstructed by a sandy beach. The extent of channel blocking and obstruction caused by this sandy beach was the subject of a lawsuit between the Millers, the Woodland Lake Property Owners Association, and the State of Florida 1n June, 1972. The substance of that suit was concerned with ownership of the land which extended out from the Miller property into Pensacola Bay over which certain of the parties desired to cut a channel from Woodland Bayou into Pensacola Bay. There was substantial conflict in the testimony at the time as to whether there was a natural channel existing across the Miller property prior to 1957-1958 or not, or, in the alternative, whether the Millers filled in an existing channel thereby blocking reasonable entrance to Woodland Bayou. The answer to that question is irrelevant to the issue in this hearing. However, a judgment of the Circuit Court entered on June 13, 1972, awarded to the Millers title to property which extended out across the currently existing channel dredged subsequent to that time by the Respondent, Woodland, to a point into Pensacola Bay. The decision of the court also awarded to the Trustees of the Internal Improvement Fund a section of property directly west of the northern tip of the Miller property consisting of a strip approximately 40 feet wide and a maximum of76 feet long lying approximately perpendicular to the currently-existing channel and through which it was envisioned the channel would be dredged from the entrance of Woodland Bayou out to Pensacola Bay. By so doing, the canal would have made a left turn coming out of the bayou into Pensacola Bay but the Miller's property, which was not then split by the canal, would be left intact. According to Mr. Hunsley, the dredging completed after the entry of the final judgment in the Quiet Title suit was not done consistent with the dictates of that judgment. Instead, the channel was cut straight out from the bayou across the Miller property, and so it remains to this day. He contends, however, that historically, the channel existed in this very spot and that the Millers as well as other property owners in the area at the time, closed the channel off by dredging and filling at their own expense some time in 1957 and 1958. Regardless of the history regarding the genesis of the channel, however, the fact remains that the channel now exists in a straight line from Woodland Bayou to Pensacola Bay across the Miller property and has so since 1972 when it was dredged subsequent to the lawsuit. The channel, being a tidal channel and subject to sand drift caused by wind and wave action, tends to become clogged with sand on a periodic basis. Because of the increased clogging currently experienced, sometime prior to September 9, 1983, the officers of Woodland circulated a petition to secure the permission of all the neighbors in the subdivision to construct a bulkhead on the Woodland side of the channel across from and up channel from the Miller property. This petition, which at the time did not include riprap, was approved by all property owners in the subdivision except for 2 and was then forwarded to the Gulf Breeze City Council to allow the Council to assess costs in the amount of approximately $600.00 per property owner against the property owners in the event DER approved the permit to construct the bulkhead. Mrs. Miller was not solicited to sign the Petition nor will she be assessed any of the costs of construction of the bulkhead if approved since she is not a property owner in the subdivision in question. The petition was circulated, according to Mr. Kettenring, who has lived in the area for several years, because of the increasing sedimentation. To his knowledge, the channel was last dredged in 1982 and 1983. Prior to that time, during the period 1979-1981, he recalls at least three fish kills in the bayou but none since the dredging was accomplished. The residents of Woodland and the surrounding owners are all on septic tanks. There is no city sewage service to this area and every year there is a change in the clarity of the water in Woodland Bayou in the summer. During warmer weather, as the temperature increases, the water becomes cloudy and full of algae. However, after dredging was accomplished and the channel was opened further both in width and in depth, the water quality improved considerably. Mr. Kettenring has seen patterns of sand drifting from the point into the channel. The area has changed considerably in that the point has scalloped out into the channel blocking it. As a result, the bayou, which is at the mainland source of the channel, is currently somewhat brackish. Access of boat owners to the bayou has become impaired. On September 9, 1983, the application submitted by Woodland was received by DER, and a determination was made that the proposed project lay in Class III waters of the State, the standards for which are outlined in Rule 17-3.121, Florida Administrative Code. Shortly thereafter on September 28, 1983, DER notified Woodland that the application was incomplete in that the application fee had not been submitted, aerial photographs of the area were required, and a consent for the use of State-owned land was necessary. In addition, it was determined that Woodland needed to provide detailed plans for compliance with State water quality standards as well as a hydrographic survey. All requirements were subsequently met except for the survey. The application originally called for an additional 300 foot bulkhead to the east of the area in question here and the hydrographic survey referred to that bulkhead. Subsequent to the filing of the application, however, that bulkhead portion of the project was deleted and when that was done, the need for the hydrographic survey was obviated. Since all other shortcomings in the application had been corrected, the project was then reviewed by Mr. Hambrick who recommended the installation of riprap in front of the remaining bulkhead and grass, and on December 20, 1984, DER published an intent to issue for the project. The project in question is a 150 feet long bulkhead fronted with 35 cubic yards of riprap at the toe. The bulkhead will be located at the entrance channel of Woodland bayou across from Petitioner's property. Mr. Hambrick, who initially reviewed the application for DER and who signed off on it in December, 1984, visited the site in question on at least 2 or 3 occasions in relation to the application and because Mrs. York, Miller's neighbor, also had an application for a bulkhead pending. He looked at the property and determined that the amended application did not call for riprap. However, because the new law requires riprap in front of seawalls, he recommended that the riprap be installed here where there is no grass. In other words, according to Mr. Hambrick, riprap will be placed flush against the bulkhead where no sea grasses exist but will curve out in front of the sea grasses where there is grass at the foot of the bulkhead which will proceed behind the grassed area. The purpose of using riprap is to dissipate wave energy. Riprap will diminish the effect of the wave and its adverse effect on Petitioner's property. Mr. Hambrick is of the opinion that installing the bulkhead and riprap would not cause or increase damage to Petitioner's property and based on the criteria he used in analyzing the project, he feels that it is in the public interest. The factors he used in his consideration of this project include: that an erosion problem exists in the area, that bulkheading and riprapping would reduce the need for dredging, that there is a history of fish kills in the area, that maintaining a channel would help flush out the bayou, and homeowners on the bayou would have access to Pensacola Bay and their interests constituted a part of the public interest. Since the revised application was completed in October, 1984, it therefore had to comply with the criteria outlined in the new water quality bill which are two-fold in general application. These are: that the project will have no adverse effects on water quality of Woodland Bayou but would likely improve it through the increased flushing of the bayou as a result of maintaininq the channel, and that a need for dredging would be reduced since the channel will not shoal in as much. According to Mr. Hambrick, at the present time there is a collapsing and sluffing off of soil along the channel, which has increased since his prior visit in November, 1984. In his analysis of the project, he considered the effects that the project would have on the public interest, water quality, wildlife and fish in the area, and the historical and archeological aspects of the area. In his opinion, riprap would provide a habitat for marine wildlife which is a plus factor and would help to maintain a shallow shore environment. It would help to maintain a stand of marsh grass that is presently in the area and which is being covered with sand coming from the eroding point. In his opinion, there would be no adverse effect on the archaeological aspects of the area nor is there any indication of any adverse effect on the public interest, including Mrs. Miller. He also considers there would be no adverse effect on marine productivity which, in his opinion, would very likely improve as a result of the project. In his opinion, overall the project will maintain and even enhance the public interest considerations in the area and there would be no damage to the marine bottom by the installation of the riprap. Since the bulkhead will be fronted by riprap, it is not considered a vertical seawall which would be prohibited by the statute as it is currently constituted. Mr. Hambrick is quite certain in his opinion that since Mrs. Miller's property is already bulkheaded and riprapped, there would be no further erosion of her property. Consequently, there would be no adverse ecological effect notwithstanding the fact that Mrs. Miller contends that keeping the channel open would be a continuing trespass to her property. She also contends that when she put in her bulkhead, now at water's edge, it was designed as a retaining wall and was located in sand some substantial distance from the water. When the channel was cut across her land, the beach from the channel to the "retaining wall" eroded and when it appeared the wall would be undercut as well, she put in the riprap. All of this would be perpetuated by the construction of Woodland's project which would keep the channel open and keep it naturally closing as she believes it would do if left alone. In short, Mr. Hambrick's analysis of the situation including his personal visits to the site lead him to conclude that the project will not: harm water quality in the area, increase the number of boats using the channel, influence the speed of boats that use the channel, or increase erosion of Petitioner's property. This opinion is supported by that of Dr. Echternacht, a hydrographic engineer who is also convinced that construction of the proposed bulkhead and riprap would not cause any erosion to Petitioner's property. In fact, the riprap in front of the bulkhead will act to absorb wave energy and since it cannot be placed in a vertical manner, it reduces that amount of reflected energy. The bulkhead and riprap as proposed here would reduce the amount of soil infusion into the channel and thereby the amount of dredging needed. The technical aspects of the proposal were also considered by Mr. Fancher, the dredge and fill supervisor for DER in the Northwest District. When he reviewed the application, including Mr. Hambrick's proposal for riprap, he concurred with it. In order to appropriately receive a permit, applicants must show that the application conforms to both water quality and public interest standards. After his review of the entire project, Mr. Fancher concluded that this project would not adversely affect water quality standards and would not adversely affect but in fact might promote public interest considerations. When the Florida Legislature passed its new water quality bill in October, 1983, it prohibited the construction of most vertical seawalls. In Mr. Fancher's opinion, what is proposed here is not a vertical seawall and there is no evidence submitted by Petitioner to refute this. In fact, there was no evidence presented by Petitioner, save her own testimony which does not serve to overcome the expert opinions to the contrary, that the proposed project fails to meet the tests set out under the laws of this State.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore RECOMMENDED that the Respondent, Woodland Lake Property Owners, Inc.'s permit to construct a bulkhead be issued as modified. RECOMMENDED this 11th day of October, 1985, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division Administrative Hearings this 11th day of October, 1985. COPIES FURNISHED: Kenneth G. Oertel, Esq. Oertel and Hoffman 2700 Blair Stone Road Suite C Tallahassee, Florida 32301 J. B. Murphy, Esq. 506 S. Palafox Street Pensacola, Florida 32501 Brad Thomas, Esq. Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Victoria Tschinkel Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Rd. Tallahassee, Florida 32301
