The Issue Whether Petitioners' Notice of Proposed Non-Substantial Change should be approved, thereby extending the commencement date and the first two phasing deadlines in their Development Order by four years and 364 days, and extending the termination date by eighteen months less two days.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background In this land use dispute, Petitioners, W. T. Cox, Jr., individually and as Trustee, Priceco (a Florida general partnership), Agnes T. May, John B. Whitaker, and Betty Sue Whitaker, have challenged a decision by Respondent, Lake County (County), which denied their Notice of Proposed Non- Substantial Change (NOPC). If approved, the NOPC would extend by four years and 364 days the commencement date and the first two phasing deadlines on a proposed project on their land, along with an extension of the termination date by eighteen months less two days. Petitioners are the owners of several parcels of property which make up a 1,433-acre tract of land east of the City of Clermont and the Florida Turnpike and just west of Lake Apopka in Lake County, Florida, known as Sugarloaf Mountain. Much, if not most, of the land was formerly orange groves, until a freeze destroyed the trees. W. T. Cox, Jr. is the principal landowner in the group, with 900 of the 1,433 total acres for the project. Petitioners intend to sell their separate parcels of property as a single parcel to a developer who will build a large planned unit development on the property. Efforts to initially develop the property began on February 19, 1991, when the County approved Planned Unit Development Ordinace No. 9-91 for Sugarloaf Mountain (Sugarloaf PUD). The Sugarloaf PUD contained no commencement or termination date requirements or limitations. On July 26, 1994, the County issued the Development Order for the Sugarloaf Mountain Development of Regional Impact (DO). An appeal of the DO was taken by the Department of Community Affairs (DCA) on September 23, 1994. By agreement of the parties, the matter was submitted to binding arbitration, and the sole issue was whether the project was vested. This appeal was resolved by an Arbitrator's Order dated October 16, 1995, which found that the property was vested by common law, and that the project was accordingly exempted from the density and intensity provisions of the County's then current Comprehensive Plan. On January 16, 1996, Petitioners and the County entered into an agreement, recorded in the public records, modifying the DO to conform to the terms of the settlement with the DCA. Under the terms of the original DO, Petitioners were obligated to "substantially proceed" with development within five years of the effective date of the DO (commencement date); otherwise, the development approval would terminate. As a result of the arbitration, this date was extended to December 18, 2000. The term "substantially proceed" is defined in the DO to mean "that the developer [has] constructed . . . improvements that can be expected to generate at least 392 ADT [average daily trips] . . . representing five percent of the first phase of the development." This requirement translates into approximately 40 conventional single-family homes, or 69 single-family homes for retirees. However, one could not construct such homes before preparing a capital improvements plan, and then providing substantial infrastructure improvements in accordance with that plan, including onsite road improvements, a stormwater management system, and a water and sewer system for all or most of the project. Therefore, all of these improvements would have to have been constructed along with at least 40 homes by December 18, 2000 (the commencement date), for the owners to have substantially proceeded within the meaning of the DO, and to have had the right to continue to develop the property. Under Section V of the DO, the commencement date "may be extended upon Lake County's finding of excusable delay, and no adverse impacts resulting from the delay, in any proposed development activity, consistent with the substantial deviation provisions of subsection 380.06(19), Florida Statutes." However, the DO does not define the term "excusable delay," or provide any criteria for applying this provision. Due to various circumstances described in greater detail below, development had not yet substantially proceeded by January 2000. Accordingly, on January 19, 2000, or eleven months prior to the required commencement date, Petitioners filed their NOPC with the County seeking to extend all deadlines by five years less one day. As required by law, copies were also filed with the East Central Florida Regional Planning Commission (ECFRPC) and the DCA. As later slightly modified at the request of the DCA, the NOPC requested an extension of the commencement date and the first two phasing deadlines by five years less one day, along with an extension of the termination date by eighteen months less two days. No substantive amendments were proposed in the NOPC. That is, Petitioners did not request any amendment affecting any of the criteria listed in the DCA's Substantial Deviation Determination Chart, and all existing land use entitlement quantities would remain unchanged. After reviewing the NOPC, on June 22, 2000, the ECFRPC advised the County by letter that because Section 380.06(19)(c), Florida Statutes, provided that "an extension of less than five years is not a substantial deviation," it concluded that "these proposed changes do not result in an automatic substantial deviation determination pursuant to the threshold criteria of section 380.06(19), Florida Statutes, nor is it expected that it will cause new or increased impacts to regional resources or facilities when considered independently or cumulatively with prior project changes." Therefore, the ECFRPC did not "recommend that this proposal be submitted for additional regional review by this agency." On February 29, 2000, the DCA advised the County by letter that "the proposed extension of the date of the build- out is not a substantial deviation and is not subject to a public hearing." The County also agreed that the NOPC was a nonsubstantial deviation and therefore it did not require further DRI review. However, the County required the NOPC to be considered by its Board of County Commissioners (Board) at a public meeting. Accordingly, on June 15, 2000, the County placed the NOPC on its agenda for a public meeting on September 26, 2000. At a meeting on September 19, 2000, counsel for Petitioners requested a continuance due to the unavailability of several key witnesses on the subject of excusable delay. A request for a 60-day continuance was again made at the outset of the meeting on September 26, 2000. Both requests for a continuance were denied and Petitioners were directed to present their case without the benefit of such witnesses. Speaking in opposition to the NOPC were the County's senior director of growth management who pointed out generally that the area in question was largely agricultural in nature and the proposed intensity of the project was incompatible with adjacent and adjoining land uses; that the 1991 PUD was inconsistent with the comprehensive plan; that the general welfare of the citizens should be taken into account when considering the request; and that the applicant had not met the burden of demonstrating substantial development. In addition, a number of area residents and representatives of organizations also spoke in opposition to the extension. They generally opposed a large development in that area of the County. Speaking in support of the NOPC were Cecilia Bonifay, Petitioners' counsel; Steven C. Ruoff, a realtor involved in the project; Steven H. Price, an attorney and the son of Karick Price, one of the owners; and John Reaves, a potential buyer of the property. Those persons generally pointed out that the principal owner (W. T. Cox, Jr.) was elderly and in poor health, and that because of restrictions in the original DO and the property's unusual location, the owners had experienced difficulty in marketing the property to a developer. They further pointed out that the property was then under contract with a new developer, but that insufficient time remained to comply with the commencement date. Thereafter, by a 5-0 vote, the County denied the NOPC. Although the reasons for the denial were not clear, the minutes of the meeting reflect that one Board member's decision was based on the fact that he was unhappy with the "proposed densities" of the project. Likewise, a second member concluded that "the densities are currently too high" and that "there has not been substantial proceeding on the project." A third member also concluded that the applicant had not "proceeded with the development." No reasons were given by the other two members. Excusable delay was mentioned by only one member, but the minutes do not reflect that excusable delay was a consideration in that member's vote. It is also fair to infer that at least some of the Board members were unhappy with the earlier decision approving the PUD in 1991, a decision made when the Board had a mostly different member composition. A formal order memorializing the Board's decision was never prepared. Relying on the minutes of the meeting as the "order," on November 6, 2000, or within 45 days, Petitioners filed their Petition for Appeal of a Development Order with the Florida Land and Water Adjudicatory Commission (Commission). Because Petitioners contended that the Board hearing was neither fair nor complete, they requested that the instant proceeding be conducted de novo, rather than simply a review of the record below. Criteria for an extension and the Board's past practice Section V of the DO provides the only criteria for granting an extension. That provision reads in relevant part as follows: [The expiration date] may be extended on Lake County's finding of excusable delay, and no adverse impacts resulting from the delay, in any proposed development activity, consistent with the substantial deviation provisions of subsection 380.06(19), Florida Statutes. The County has no other criteria defining the standards to be used in determining whether "excusable delay" has been shown by an applicant. Indeed, its Comprehensive Plan and Land Development Regulations do not contain any definitions or criteria. Further, the Board has never made any express findings on excusable delay or stated any criteria for determining it in any amended development orders resulting from extensions granted in other cases. At the same time, there are no standards enuciated in Chapter 380, Florida Statutes, nor are there any rules on the subject. A request for an extension of the build-out and commencement dates of a development order is subject to review by the DCA and the regional planning council under the substantial deviation provisions of Subsection 380.06(19), Florida Statutes. However, if as here, the proposed request is for an extension of one day less than five years, it is conclusively not a substantial deviation under the statute. For this reason, the practice of the DCA and ECFRPC has been to grant such extensions automatically. The Board has approved extensions of various deadlines in four DRIs over the seven years before the current request was heard by the Board. There is no evidence that the Board has ever denied such a request. Based on this consistent practice, Petitioners reasonably inferred in 1999 that obtaining the Board's approval of their request would be routine. On October 26, 1993, the Board approved a 54-month extension for the Monterey/Royal Highlands DRI (Monterey). In that case, the original owner (and applicant for an extension) had sold the property to a new developer but then had to foreclose on it when the buyer defaulted and went bankrupt. Because of the automatic stay under the Bankruptcy Code, the original owner could not re-obtain or exercise any control over the property until the conclusion of bankruptcy proceedings. In its approval, the Board recited the bankruptcy as the reason for no construction having been undertaken yet, but made no mention of excusable delay. In another case in 1994 involving the Plantation at Leesburg DRI (Plantation), the Board granted a request for an extension of one day less than five years. While the DRI admittedly did not include any language requiring a showing of excusable delay, the minutes of the meeting reflect no discussion of any standard for granting an extension. The staff report did note, however, that the project was vested and that the request was not a substantial deviation, even though it included a revision of the master plan of the DRI. In 1997, the Board granted an extension for the Southlake Florida Quality Development (Southlake), which was subject to requirements similar to those for DRIs. There, without any mention of excusable delay, the Board approved a staff recommendation that a 10-year extension be granted for the purpose of "allow[ing] for continuation and completion of the project on a more realistic basis" than originally proposed. Like the Monterey and Plantation extensions, the Board did not employ any stated standard in reaching its decision on the Southlake extension. In March 2000, the Board approved an extension for the Pennbrooke Fairways DRI (Pennbrooke), a project which had already constructed some 400 units, a golf course, and other amenities. The Pennbrooke development order contained an "excusable delay" standard almost identical to the one in issue here. In recommending approval of an extension of five years less a day, the staff noted that the project was vested, that the request was for a nonsubstantial amendment, and that the developer was requesting the extension because of "changing economic and other conditions." The recommendation was accepted, but the minutes of the meeting do not reflect that there was any discussion of the merits of the requested extension or any mention of excusable delay. In each of the four cases, either the minutes or the staff reports emphasized that the requested extensions were nonsubstantial amendments to the original approvals, and some mention is made of the fact that the projects were vested, though without explanation of the weight given that factor, or any other. In three of the four cases, the requested extension was for less than five years (while the fourth was for ten). Although three of the four development orders include an excusable delay standard, all four cases omit any findings on excusable delay or any other standard for an extension. Admittedly, some development had taken place in three of the four cases, but the County concedes it had not reached the level specified in the development orders, and there is no indication in the record that the County relied on this fact in determining whether to grant an extension. Finally, even though none of the cases makes clear the Board's basis for approving an extension, in two cases the reason given by the applicant was lack of control over the property due to bankruptcy, in another case the applicant cited the need for a more realistic schedule for construction, and in the remaining case the applicant cited "the other changing economic and other conditions." Although the County's practice in granting extensions, and denying this one, has not been clear and consistent, it does show that before the instant decision the standard was not strict and the bar was not high. Indeed, the County generally took into account a project's vested status and the finding of the state agencies that a request was not a substantial deviation. The Board never made findings on excusable delay and never formulated or followed any criteria for determining it. Nor did the Board consider whether adverse impacts would result from the delay, or whether circumstances had changed enough to warrant further review, as specified by the standard in each development order. The applicant's excusable delay. Although Petitioners did not begin construction within five years of obtaining the DO, they did make an effort to implement the DO but were unable to do so at once, for two reasons. First, the health of the principal owner and leader of the group, W. T. Cox, Jr., had grown increasingly impaired during 1996, the first year under the DO, impeding communications and decision-making in the group. Second, through discussions with County officials, the owners learned that they had insufficient resources to carry out the development by themselves. They then concluded that they must market the property so as to attract a joint venturer who could bring substantially more financial resources and development experience to the venture, or to sell the property outright to a large development company with the necessary resources. The leader of the group from its inception was Mr. Cox, who had approached Mr. Karick Price (the owner of 500 acres) with the original idea for the development. Mr. Cox had substantial development experience and access to financial resources. However, at about the same time the DO became effective in late 1995, Mr. Cox's health began to deteriorate, along with his ability to conduct business. In 1996, he suffered a stroke, and his condition worsened. In 1997, it became necessary for Mr. Cox to rely almost exclusively on a local attorney, Phillip Tatich, to assist him in his work activities. Mr. Tatich was later appointed a co-trustee of Mr. Cox's living trust in February 1998, after which he took over Mr. Cox's responsibilities in the group. During those same two years after the effective date of the DO, Mr. Price's health also deteriorated (due to multiple sclerosis), and his son Steven was asked to take over the responsibility for the family's interests in the DRI. Although Steven Price is an attorney, he does not specialize in land use or have experience in developing property. Consequently, he deferred to Mr. Cox, whose own health was on the decline. After Mr. Tatich became co-trustee for Mr. Cox in early 1998, he began to familiarize himself with the various properties in Mr. Cox's portfolio. By July 1998, Mr. Tatich was fully knowledgeable about the requirements of the DO and the options available to Petitioners. Despite the health problems with Mr. Cox, during 1996 and 1997, the owners were not idle. First, in early 1996 they negotiated an agreement with the DCA which clarified the meaning of several requirements in the DO. They also attempted to complete the sale of the property to a Euro- Canadian group of investors. After that deal fell through, Petitioners began to negotiate with the Barclay group, which resulted in a signed contract, but did not lead to a closing. At about the same time, a DRI expert advised Petitioners about the DO's requirements for capital improvements, the lack of clarity about the extent of those requirements, and the need for prompt action to meet the commencement date. Based on the expert's report, Petitioners decided that they had to focus their efforts on marketing the property, or to sell the property to a developer who could make use of the DRI entitlements. Given the proximity of the commencement date, Petitioners elected to market the property, hoping to attract a joint venturer to provide the experience and funding they lacked. In September 1997, Petitioners signed a formal listing agreement with Realvest Partners, Inc. (Realvest), a Maitland, Florida firm that specializes in appraising and developing large tracts of land for development purposes. Realvest did everything reasonable to market the property. Among other things, the listing broker (Mr. Ruoff) persuaded a number of other landowners to agree to an assemblage of their properties with the Sugarloaf property, for purposes of marketing an even larger tract (4,000 acres) that would have direct access to the Florida Turnpike and adjoin the city limits of Minneola and Clermont. Mr. Ruoff met more than 100 times with prospective buyers and showed the property at least 50 times over the two years that he marketed the property. This work generated a number of offers, including offers from Arvida and the Del Webb Corporation, each of which had the resources to develop such a large tract of property. Although each company came close to reaching a signed contract with the owners of the assemblage, both deals fell through because of the unreasonable demands of one of the assemblage owners (not a Petitioner). Neither company was willing to purchase the Sugarloaf property by itself, primarily because of its lack of access to major roads. Despite these failures, Petitioners continued to search for a buyer for the Sugarloaf property, and they negotiated with several other groups. After 6 to 8 months of negotiations, the Groner-Reaves group (in which Arnold Palmer is associated) signed a purchase contract in June 2000, which remains pending until this proceeding is concluded. Although the County witness asserted that the property was "unsalable," the owners were not responsible for that characteristic of the property, and they did all that they could do to sell their property alone and in an assemblage. As noted above, they eventually succeeded in securing a purchase contract. The unsalability of the property confirms the fact that a delay in selling the property was beyond Petitioners' control and thus excusable. Petitioners' decision not to start construction was reasonable even after Mr. Tatich joined the group as Mr. Cox's trustee. This is because in February 1998, he lacked the knowledge to make a sensible recommendation. After learning of the DO's requirements, he concurred in the owners' previous conclusion that without Mr. Cox, the other group members lacked the resources and experience to substantially proceed with construction on their own. In addition, even assuming that Petitioners could have mustered the enormous amount of resources required just to proceed with construction and meet the commencement date, starting construction would have established a particular pattern of development that could have clashed with the plans of some prospective purchasers in what was already a very narrow market. In summary, the delay in development activity was excusable due to the health impairment of Mr. Cox, the lack of financial resources and development experience of the other owners, the complexity of the DO and the unusual capital costs associated with the DRI, and the difficult marketing conditions for the property. All of these reasons exemplify factors beyond the control of the owners, and some of them were unforseen. No adverse impacts Petitioners also demonstrated that no adverse impacts would result from the delay. The request changes no substantive condition of the DO and generates no new impact of any kind. Also, Petitioners rebutted the County's own contrary evidence on this issue. At the hearing, the County speculated that the delay might cause a potential adverse impact on the nearby roads by delaying the time when the owners would have to pay for the expensive offsite road improvements on County Roads 561, 561A, and 455, as well as for a Turnpike interchange. The County reasoned that while the development is continuing in the surrounding area, traffic generated by such offsite development is increasing and could possibly exceed the established level of service for each of those roads before Sugarloaf makes the improvements. Petitioners established that the County's concern was no more than speculation and that the roads in question have more than enough capacity to absorb growth well above the combined current rate in the area and proposed buildout for Phase I of 660 houses over the next five years. Moreover, whatever impacts have occurred in the past five years are not attributable to Sugarloaf, which has generated no traffic. Therefore, no adverse impacts will occur by virtue of granting the request.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Land and Water Adjudicatory Commission issue a final order approving Petitioners' Notice of Proposed Non-Substantial Change. DONE AND ENTERED this 25th day of July, 2001, in Tallahassee, Leon County, Florida. ___________________________________ DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (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 25th day of July, 2001. COPIES FURNISHED: Donna Arduin, Secretary Florida Land and Water Adjudicatory Commission Office of the Governor Room 2105, The Capitol Tallahassee, Florida 32399-0001 Charles T. Canady, General Counsel Office of the Governor Room 209, The Capitol Tallahassee, Florida 32399-0001 Timothy A. Smith, Esquire Akerman, Senterfitt & Eidson, P.A. 255 South Orange Avenue, 17th Floor Orlando, Florida 32801-3414 Melanie N. Marsh, Esquire Post Office Box 7800 Tavares, Florida 32778-7800
Conclusions On Tuesday, October 11, 1994, the local public hearing in this proceeding was held before the Honorable Don W. Davis, Hearing Officer, Division of Administrative Hearings. The hearing was held in Room 290, City Commission Chambers, City of Daytona Beach City Hall, 301 South Ridgewood Avenue, Daytona Beach, Florida. The hearing was conducted pursuant to Section 190.005, Florida Statutes, for the purpose of taking testimony and public comment and receiving exhibits on the petition of Indigo Development Inc. ("Petitioner") to establish the Indigo 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. Statement of the Issue The sole issue to be addressed is whether the petition to establish the Indigo Community Development District meets the criteria set forth in Chapter 190, Florida Statutes, and Chapter 42-1, Florida Administrative Code. Appearances Appearances on behalf of the Petitioner were entered by: Cheryl G. Stuart, Esquire Jonathan T. Johnson, Esquire Hopping Boyd Green & Sams 123 South Calhoun Street Post Office Box 6526 Tallahassee, Florida 32314 Preliminary Statement The Petitioner filed the petition to establish the Indigo Community Development District with the Secretary of the Commission on August 2, 1994. On August 1, 1994, the Petitioner delivered a copy of the petition and exhibits, together with a filing fee, to Frank Gummey, City Attorney for the City of Daytona Beach. The Petitioner also submitted a copy of the petition and exhibits, along with a filing fee to Volusia County. A copy of the petition, including its attached exhibits, was received into evidence as Petitioner's Composite Exhibit A. On August 10, 1994, the Secretary of the Commission certified that the petition contained all required elements and forwarded it to the Division of Administrative Hearings for the assignment of a hearing officer. The Commission published a notice of receipt of petition in the Florida Administrative Weekly on September 16, 1994, as required by Rule 42-1.010, Florida Administrative Code. A copy of the notice of receipt of petition was received into evidence as Petitioner's Exhibit B. By order of the undersigned, the local public hearing was scheduled in Daytona Beach, Florida, for Tuesday, October 11, 1994. The Petitioner published notice of the hearing in accordance with Section 190.005(1)(d), Florida Statutes, and Rule 42-1.011, Florida Administrative Code, and provided additional individual notice to others as provided in Rule 42-1.011(1)(b). Copies of return receipts from certified mailing of notices were received into evidence as Petitioner's Exhibit E. The Petitioner also filed the prepared testimony of four witnesses, together with attached exhibits, on October 4, 1994. Section 190.005(1)(c), Florida Statutes, provides that a local government has the option to hold a public hearing within 45 days of the filing of a petition. The City Commission of the City of Daytona Beach ("City") held a public hearing on the petition on August 17, 1994, and adopted Resolution No. 94-412 supporting establishment of the District. The County Council of Volusia County also expressed support for the establishment of the District, adopting Resolution 94-230 on September 15, 1994. Certified copies of both resolutions were received into evidence respectively as Petitioner's Exhibits F and G. At the local public hearing on October 11, 1994, the Petitioner presented the testimony of William H. McMunn, President of Indigo Development Inc., and agent of the Petitioner in this proceeding; Fred A. Greene, an expert in civil engineering with an emphasis in public infrastructure design, permitting, cost estimation, and construction administration for special districts; Allen E. Salowe, a development economist and managing principal in the firm of A.E. Salowe & Associates, an expert in planning and economic development and analysis; and Gary R. Walters, President of Gary Walters and Associates, a community planning and management consulting firm providing services in conjunction with Gary L. Moyer, P.A., and an expert in special district operations and management. Their full names and addresses are attached to this report as Exhibit 1. The Petitioner offered Petitioner's Exhibits A-J, which were received into evidence at the hearing. A list of Petitioner's exhibits in this proceeding is attached to this report as Exhibit 2. Neither the City nor Volusia County presented any witnesses or exhibits. No public comment was received at the hearing. In accordance with Rule 42-1.012(3), Florida Administrative Code, the record in this matter was left open until October 21, 1994, to allow for the submission of additional written comments or materials. With the exception of a copy of the Petitioner's letter transmitting proof of publication of the notice of hearing to the Secretary of the Commission in accordance with Rule 42-1.011(1)(a), Florida Administrative Code, no additional written comments or materials were filed. A transcript of the local public hearing was filed by the Petitioner with the undersigned hearing officer on October 21, 1994. A copy of the transcript is being transmitted with this Report of Findings and Conclusions. At hearing, the Petitioner was given leave to file a Proposed Report of Findings and Conclusions no later than October 31, 1994. The Petitioner timely filed such Proposed Report of Findings and Conclusions. Overview The Petitioner is seeking the adoption of a rule by the Commission to establish a community development district of approximately 2,480 acres located entirely within the City. It would be located generally west of I-95, south and east of LPGA Boulevard (formerly 11th Street), and north of U.S. 92. If established, the District will be an independent special district authorized pursuant to Chapter 190, Florida Statutes. The District will have 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. Neighboring lands are also principally undeveloped, although currently existing uses include the City's sewage treatment plant, a municipally-owned stadium and a privately-owned horse farm. In May, 1992, an Application for Development Approval ("ADA") for the Ladies Professional Golf Association Development of Regional Impact ("LPGA DRI") encompassing all of the real property located within the external boundaries of the proposed District was submitted to the City. The ADA requested DRI review and approval of a development consisting of no more than 6,018 residential units and related commercial, institutional, recreational, and other uses. The ADA, as amended, also included lands east of I-95 which are not included in the proposed District. All lands within the District will be developed as a mixed-use project pursuant to the LPGA DRI Development Order issued August 18, 1993, by the City. The LPGA DRI is a development which is consistent in all respects with the City's duly adopted local comprehensive plan and development regulations. The proposed development plan for the lands within the District contemplates the construction of approximately 4,035 single family dwelling units, 856,999 square feet of commercial space, 321,082 square feet of office space, 238,752 square feet of industrial space, and 1,566 multi family and hotel units in four phases over a 23-year period. There are presently no residents living within the District. There are five parcels within the external boundaries of the proposed District which are excluded from the District. These parcels are: (1) the Ladies Professional Golf Association golf course which is owned by the City, (2) the Phase I Entrance Road which is owned by the City, (3) the road connecting the Phase IIA Entrance Road to the City's maintenance facility, which is owned by the City, (4) a sub-station site which is presently owned by Florida Power & Light Company, and (5) the state sovereignty lands underlying the Tomoka River. These exclusions do not affect the contiguity or compactness of the proposed district or interfere with the ability of the proposed District to serve as one functional interrelated community. The Petitioner currently intends for the District to participate in the acquisition or construction of certain road improvements, potable water distribution, wastewater collection, and reuse systems. Capital costs of these improvements will be borne by the District. Once completed, these improvements will be dedicated to the City and the ownership and operation of these improvements will become the responsibility of the City. The City will also be responsible for maintenance of these improvements, except as to roadway landscape maintenance which will be performed by the District. The Petitioner intends for the District to provide maintenance for the seven entrances to the District and certain roadway landscaping, including participation in landscape maintenance at the proposed LPGA Boulevard and I-95 interchange. This maintenance may include provision of appropriate landscaping, irrigation and/or mowing services. The Petitioner also intends for the District to construct a street lighting system, the capital costs of which will be borne by the District. Upon completion, portions of this system will be dedicated to the City, and ownership, operation and maintenance of those portions of the system will become the City's responsibility. The remaining portions of the street lighting system will be owned, operated and maintained by the District. The Petitioner also presently intends for the District to construct or acquire portions of the water management system. Once complete, certain portions of the water management system may be dedicated to the City, while other portions of the system may be owned, operated and maintained by the District. Responsibility for maintenance of the water management systems will be divided between the District and the City and any applicable homeowners' association. The Petitioner intends, in addition, for the District to provide maintenance for certain open space, recreation and conservation areas, as well as the Thayer and Bayless canals which run roughly east-west through the proposed District. It is intended, after establishment of the District, that the District and the City will enter into interlocal agreements which will further define the relationship between them. The estimated cost in 1993 dollars for all identified capital improvements is $30,656,000 with construction scheduled to take place from 1995 through 2018. Actual construction costs and timetables may vary for a variety of reasons, including final design and permitting criteria, and future changes in economic conditions upon labor, services, materials, interest and general market circumstances. The Petitioner expects that the District will finance such services and improvements through the use of long-term loans or through issuance of tax exempt bonds. The debt issued by the District is expected to be retired by non- ad valorem or special assessments on benefitted property within the District. Certain construction costs associated with potable water distribution, wastewater collection and reuse systems may be financed through the imposition of connection charges, rates and fees pursuant to Section 190.035, Florida Statutes. The Petitioner has no current plans for the District to issue general obligation bonds or to impose ad valorem taxes. The City adopted Resolution 94-412 in which it consents to the exercise by the District of special powers, as authorized by Section 190.012(2), Florida Statutes, for the purpose of providing facilities for parks, indoor and outdoor recreational, cultural and educational uses pursuant to Section 190.012(2)(a), and for security as provided in Section 190.012(2)(d). The City, in adopting Resolution 94-412, also found that the District is not inconsistent with any relevant or material portion or element of the effective local government comprehensive plan. Additional findings by the City indicate that the land area within the District is of sufficient size, compactness and contiguity to be developable as one functional, interrelated community, and that the District is the best alternative for timely delivering community development systems, services and facilities to the area that will be served. The City also determined that the community development systems, services and facilities of the District will not be incompatible with the capacity and uses of existing community development services and facilities, and that the area to be served by the District is amenable to separate special district government. The City's Resolution 94-412 further recommends that the Commission adopt a rule to establish the District as proposed by the Petitioner. Volusia County adopted Resolution 94-230 which, based upon findings that the proposed District is located wholly within the boundaries of the City and that establishment of the District is not inconsistent with any County facilities or services, expresses County support for the City's recommendation as to the establishment of the District. The sole purpose of this proceeding was to consider the establishment of the District as proposed by the Petitioner. Summary of Evidence and Testimony Whether all statements contained within the petition have been found to be true and correct. Petitioner's Composite Exhibit A was identified for the record as a copy of the petition and its attachments as filed with the Commission. McMunn stated that he had reviewed the contents of the petition and approved its findings, then generally described each of the attachments. Both McMunn and Salowe indicated that Attachment 10, page 3, second paragraph, should read "1993 dollars" and that the same change should be made in Table 2 of that document. McMunn testified further that ownership of the land within the proposed District had not changed since submission of his prefiled direct testimony, which testimony indicated that the Petitioner either owns or has written consent to establish the District from the owners of one hundred percent of the real property located within the District. With the correction to the EIS by McMunn and Salowe, the petition and its attached exhibits are 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. Salowe reviewed the proposed District in light of the requirements of the State Comprehensive Plan, Chapter 187, Florida Statutes, and the City of Daytona Beach Comprehensive Plan, adopted pursuant to Chapter 163, Part II, Florida Statutes ("Local Comprehensive Plan"). In addition, the City Commission, the East Central Florida Regional Planning Council, and the Department of Community Affairs reviewed the proposed District for consistency with applicable elements or portions of the state and effective local comprehensive plans. The City concluded that the District would not be inconsistent with any relevant or material portion or element of the Local Comprehensive Plan. The Regional Planning Council concluded that the proposed District is consistent with its adopted policies and with applicable portions of both state and local comprehensive plans. The Department of Community Affairs reviewed the Petition from the standpoint of its programs and responsibilities and the requirements of Section 190.005(e)2-6, Florida Statutes, and, based on this review, stated that the establishment of the District would not be incompatible with the Comprehensive Plan. State Comprehensive Plan From a planning perspective, two goals of the State Comprehensive Plan, and policies supporting those goals, apply directly to the District. From an economics perspective, two goals and policies supporting those goals apply directly to the District. Goal 16, Land Use, recognizes the importance of locating development in areas with the fiscal ability and service capacity to accommodate growth. From a planning perspective, the District will have the fiscal capacity to provide a wide range of services and facilities to a population in a designated growth area lying within the City. Goal 26, Plan Implementation, provides that systematic planning shall be integrated into all levels of government, with emphasis on intergovernmental coordination. From a planning perspective, all District board meetings will be publicly noticed and open to the public, therefore, all citizens may participate. In addition, Section 189.415, Florida Statutes, requires the District to file annual public facilities reports with the City which the City may use and rely on in any revisions to the Local Comprehensive Plan. Goal 18, Public Facilities, provides that the state shall protect substantial investments in public facilities and plan for and finance new facilities to serve residents in a timely, orderly and efficient manner. From an economics perspective, the proposed District will provide designated improvements and services at no cost to the local government. These actions allow local government resources to be focused on the public facilities needs outside of the District and so contribute to the timely, orderly and efficient provision of services to all City residents. Goal 21, Governmental Efficiency, provides that governments shall economically and efficiently provide the amount and quality of services required by the public. The proposed District would finance and deliver quality public services and facilities at a level demanded by residents and property owners of the District who directly benefit and pay for those services and facilities. Based on the testimony in the record, the proposed District would not be inconsistent with any applicable element or portion of the State Comprehensive Plan. Local Comprehensive Plan From a planning perspective, the Future Land Use Element and Map and the Intergovernmental Coordination Element of the Local Comprehensive Plan apply directly to the District. From an economics perspective, the Capital Improvements Element applies directly to the District. The Future Land Use Element and supporting policies, seek to achieve a future land use pattern that provides for a sufficient supply of land to meet growth demands and insure that land uses are located in a rational and efficient manner. From a planning perspective, the proposed District would further this goal by means of effective infrastructure planning, public finance, and community-wide maintenance. The Intergovernmental Coordination Element and supporting policies acknowledge the need for alternative providers of facilities and services and require appropriate mechanisms to coordinate, monitor, and evaluate their activities where such activities have a bearing on required levels of service and land planning decisions by the City. From a planning perspective, the District satisfies that need. The Capital Improvements Element is intended to accommodate new development within sound fiscal practices. From an economics perspective, the District furthers that intent because it provides an additional source of public funding and revenue to satisfy the LPGA DRI capital improvements requirements without burdening the borrowing capacity or indebtedness of the City. Nothing in the Local Comprehensive Plan precludes the establishment of a community development district. The Local Comprehensive Plan is mostly silent on the powers of such districts, but it does not prevent a community development district from exercising any of the general or optional powers set forth in Sections 190.011 and 190.012, Florida Statutes. The City concluded the District would not be inconsistent with any relevant or material portion or element of the Local Comprehensive Plan. Based on the evidence in this record, the District would not be inconsistent with any applicable element or portion of the Local 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, Salowe and Walters. The lands that comprise the District consist of approximately 2,480 acres, located entirely within the City, and generally west of I-95, south and east of LPGA Boulevard, and north of U.S. 92. All of the land in the proposed District is part of a planned community which is included in the LPGA DRI Development Order approved August 18, 1993, which Development Order contemplates the possible establishment of such a district. Although five parcels of land within the external boundaries of the proposed District are excluded from the District because they are owned by governmental entities or utilities, their exclusion 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 proposed development plan for lands within the District is focused largely on construction of single-family residences and selected multi-family residential areas supported both by both neighborhood and community-wide commercial development. Much as in other similarly-sized projects which lie adjacent to I-95 and have been approved as DRIs, the proposed district facilities can be provided in an efficient, functional, and integrated manner. Functional interrelation means that each community purpose has a mutual reinforcing relationship with each of the community's other purposes. Each function must be designed to contribute to the development or maintenance of the larger whole. Each function requires a management capability, funding source, and an understanding of the size of the community's needs so as to handle the growth and development of the community. The size of the District as proposed is approximately 2,480 acres. From a planning perspective, this is a sufficient size to accommodate roads, drainage, water, sewer, lighting, security, parks and recreation, and other basic facilities and services typical of a functionally interrelated community. With adequate planning, design, financing, construction and maintenance, provision of these facilities and services will contribute to the development of a functional interrelated community. Compactness relates to the location in distance between the lands and land uses within a community. From a planning perspective, the property that comprises this community is compact because all of the property is part of a single project, is close together, and, with the exception of the municipally- owned LPGA golf course, has no barriers segregating one portion of the project from any of the others. Contiguity has to do with whether all parts of the project are touching along a boundary or point. From a planning perspective, the property is sufficiently contiguous when all parts of a project are either in actual contact or are close enough to allow the efficient design and use of infrastructure. The land need not be physically connected in order to be functionally connected, especially when planning specialized governmental systems, facilities and services. However, all parts of the project do need to be spatially imminent so that the facilities and services can be provided in a cost-effective manner and can be properly maintained with minimum difficulty. The proposed District is sufficiently contiguous for planning purposes and for the purpose of district governance. From an economics perspective, the physical configuration of the proposed District is ideal. The area to be included in the District is compact and contiguous. The size and physical configuration of the District allows economical construction of road and lighting improvements, and maintenance of the water management and wetlands conservation and open space systems in a long- term cost-effective manner. The cost efficient delivery of potable water distribution, wastewater collection, and reuse lines is also enhanced by the compactness and contiguity of the site. The area to be included within the proposed District can be expected to succeed as a functional, interrelated community from a district management perspective because the characteristics of compactness, contiguity and size ensure that the delivery of services and facilities will not be unnecessarily impeded by distance, physical barriers or other spacial problems. The City concluded that the area of land within the District is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developable as a single functional interrelated community. From planning, economics, engineering and management perspectives, the area of land to be included in the District is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developed as a single functionally 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 participate in the construction or acquisition of certain road improvements, potable water distribution, wastewater collection, reuse, and lighting systems. Capital costs of these improvements will be borne by the District. Once completed, certain of these improvements will be dedicated, in whole or in part, to the City and the ownership and operation of the dedicated improvements will become the City's responsibility. The City will also be responsible for maintenance of these improvements, except as to roadway landscape maintenance which will be performed by the District. It is intended that the proposed District will own, operate, and maintain the seven entrances to the District. The District will also provide roadway landscape maintenance, including participation in landscape maintenance at the proposed LPGA Boulevard and I-95 Interchange. It is intended in addition that the District will provide maintenance for certain open space, recreation and conservation areas, as well as the Thayer and Bayless canals. The proposed District would also construct or acquire portions of the water management system. Upon completion, certain portions of the water management system may be dedicated to the City, while other portions of the system may be owned, operated, and maintained by the District. Responsibility for maintenance of the water management systems will be apportioned between the District and the City and any applicable homeowners' association. It is expected that the District will finance these services and improvements through use of long-term loans or through issuance of tax exempt bonds. The debt issued by the District is expected to be retired by non-ad valorem or special assessments on benefitted property within the District. Certain construction costs associated with potable water distribution, wastewater collection and reuse systems may be financed through the imposition of connection charges, rates and fees pursuant to Section 190.035, Florida Statutes. Use of non-ad valorem or special assessments and user fees will ensure that the real property benefitting from District services is the same property which pays for them. Two types of alternatives to establishment of the proposed District were identified. First, the City might provide facilities and services from its general fund. Second, facilities and services might be provided by some private means, generally either through a private developer dependent upon commercial loans or through a community-wide property owners' 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 can provide a long-term perspective; whether the alternative is a stable provider; and whether the alternative can secure low-cost long-term financing to pay for all benefits at a sustained level of quality. Delivery by the Local General Purpose Government The City is a perpetual entity capable of providing services at sustained levels. It can also provide a relatively low-cost source of financing. There are, however, already substantial demands upon the City's financial and staff resources, the response to which will inevitably be dispersed over an expanding population residing within a very broad geographic area. Delivery by Private Means Private means for delivering community development services and facilities include delivery through a master neighborhood-type property owners' association or by a private developer. Either of these means can satisfy the demand for focused service and facilities and managed delivery. However, neither can assure a long-term perspective or necessarily qualify as a low-cost source of financing. A property owners' association might satisfy demands for focused service and facilities and managed delivery. However, such associations lack the capability to issue bonds or other forms of long-term debt. They also frequently experience difficulty in collecting maintenance assessments. Consequently, a property owners' association could not effectively plan, finance, construct, operate and maintain the necessary infrastructure. While a private developer might provide community development services and facilities by utilizing long-term financing from private lenders, such financing, if obtainable, is likely to be more expensive than financing through a public entity. Moreover, only a public entity can guarantee long-term maintenance. Delivery by the District The District is an independent special purpose unit of local government designed to focus its attention on providing the best long-term services to its specific benefitted properties and residents. It has limited powers and jurisdiction. The District will be governed by its own board of supervisors and managed by those whose sole purpose is to provide long-term planning, financing, and management of services and facilities. Sources of funding assure that District services and facilities will be adequately managed at sustained levels of quality. From an engineering perspective, the District is the best alternative to provide the proposed community development services and facilities because it is a long-term, stable, perpetual entity capable of maintaining the facilities over their expected life. Knowing when, where and how infrastructure will be needed to service a projected population allows for more efficient delivery. The proposed District is better able than the other available alternatives to focus attention on when and where and how the next system of infrastructure will be required. This results in a more complete utilization of existing facilities. The LPGA DRI development order acknowledges the possible establishment of the District and further describes and defines the intended services and facilities to be provided by the District. The City has concluded that the proposed District is the best alternative for the timely delivery of community development systems, services and facilities to the area that will be served by the District. From planning, economics, engineering, and management perspectives, the District is the best alternative available for delivering community development services and facilities to the area that will be served by the District. Whether the community development services and facilities of the district will be incompatible with the capacity and uses of existing local and regional community development services and facilities. Establishment of the proposed District and the compatibility of district services and facilities with the capacity and uses of existing local and regional community development services and facilities was considered during the LPGA DRI approval process. The services and facilities to be provided by the proposed District, none of which is presently in existence, are required by the LPGA DRI. The land area of the proposed District is isolated in part, and buffered by, major City roadways and by conservation areas. Although there are existing sewer and water trunk lines on the site which are owned and operated by the City, the services and facilities of the proposed District are, from a planning perspective, fully compatible with the capacity and uses of existing local or regional community development services and facilities. Moreover, none of the supplemental services and facilities which have been or later may be authorized by consent of the City following establishment of the District are presently existing on the site or provided to the LPGA International community. From an economics perspective, the proposed District will finance the water distribution, wastewater collection, and reuse systems, as well as certain roadways and street lighting. It will also maintain the entrances, landscaping and signage, as well as portions of the water management system, conservation, recreation, and open space areas in perpetuity. Maintenance of the water management system will be divided between the District and the City and any applicable homeowners' association. The management and operation of District facilities will be coordinated with the City. The proposed District will not only provide operation and maintenance services not currently available, but the City, developers, builders and residents will all benefit through increased access, traffic flow, safety, and general enhancement of the affected property. The City has concluded that the community development systems, services and facilities of the District will not be incompatible with the capacity and uses of existing community development services and facilities. From planning, economics, engineering, 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. Two criteria are needed to evaluate a land area for suitability for separate special district governance. They are whether the area is of sufficient size, compactness and contiguity to be the basis for a functional interrelated community, and whether the land area needs, and the owners and residents will benefit from, the community development services and facilities. Considering the first of these criteria from planning, economics, engineering, and management perspectives, it is clear that the area of land to be included in the District is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developed as a single functionally interrelated community. From an engineering perspective, the area within the proposed District is also large enough to support a staff necessary to operate and maintain the proposed systems. As for an evaluation based on the second of the abovementioned criteria, the infrastructure needs of the area within the proposed District are spelled out in the development order issued for the project. All of the proposed District facilities and services are contemplated in the LPGA DRI Development Order and are thus needed for development of the area. The land within the proposed District also needs supplemental services and facilities that can be provided by the District, including, but not limited to, roadway landscaping and maintenance of entrances, open space, recreation and conservation areas. The construction and maintenance of these services and facilities will benefit both owners and residents of lands within the District. The City has concluded that the area to be served by the proposed District is amenable to separate special district government. From planning, engineering, and management perspectives, the area that will be served by the District is amenable to separate special-district government. Other requirements imposed by statute or rule. Chapter 190, Florida Statutes, and Chapter 42-1, Florida Administrative Code, impose specific requirements regarding the petition and other information to be submitted to the Commission. Elements of the Petition 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 A contains such a description. Section 190.005(1)(a)2, Florida Statutes, requires the petition to contain written consent to establishment of the District by the owners of 100 percent of the real property to be included in the District. Petitioner's Composite Exhibit A contains the consent of Patricia Lagoni who, as Trustee under Trust No. IDI-3, dated June 7, 1991, and under Trust No. IDI-2, dated June 27, 1989, is the sole owner of 100 percent of the real property to be included in the proposed District. Section 190.005(1)(a)3, Florida Statutes, requires the petition to contain the names of five persons, all residents of the State of Florida and citizens of the United States, to serve on the initial board of supervisors. The five persons designated in the petition to serve on the initial board of supervisors are: Joseph Benedict, III 695 Airport Road New Smyrna Beach, FL 32168 Patricia Lagoni 131 Muirfield Drive Daytona Beach, FL 32114 Gary Moothart 3 Broadriver Road Ormond Beach, FL 32174 William H. McMunn 3 South Ravinsfield Lane Ormond Beach, FL 32174 Bruce W. Teeters 10 Broadriver Road Ormond Beach, FL 32174 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 the petition to propose a name for the District. The petition proposes the name "Indigo Community Development District." Section 190.005(1)(a)5, Florida Statutes, requires that the petition show current major trunk water mains and sewer interceptors and outfalls if in existence. Petition's Composite Exhibit A shows the location of those facilities within 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 estimated cost for such construction. Petitioner's Composite Exhibit A provides such a timetable and estimate. 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. The petition provides that information. 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 petition contains an EIS. It meets all requirements of Section 120.54(2), Florida Statutes. Economic Impact Statement The EIS assumes it is socially desirable to use the least expensive and least intrusive method to deliver a given public improvement and to provide beneficial maintenance. An entity that is directly accountable to its users for costs and delivery of benefits is more likely to achieve the desired result. The District is such an entity. The District is a limited and highly specialized unit of local government. It is a special purpose unit of local government with a single purpose: the provision of infrastructure and services for planned new communities. Its economic benefits exceed its economic cost to all affected parties. The Petitioner proposes that the District utilize special assessment or revenue bonds or other forms of long-term indebtedness for capital to provide planned public infrastructure. The indebtedness will be repaid through non-ad valorem assessments on the land within the District, or rates and charges established by the District. The Petitioner has no current plans for the District to issue general obligation bonds or to impose ad valorem taxes. The EIS contains an estimate of the costs and benefits to all persons directly affected by the proposed rule to establish the District . Beyond administrative costs related to rule adoption, the State and its citizens will incur no costs from establishment of the District. The District will require no subsidies from the State. Benefits will include improved planning and coordination of development, which is difficult to quantify but nonetheless substantial. Administrative costs incurred by the City related to rule adoption should be more than offset by the $15,000 filing fee paid by the Petitioner. Benefits to the City will include improved planning and coordination of development, without incurring any administrative or maintenance burden for facilities and services within the District except for those it chooses to accept. The Petitioner incurred substantial costs in seeking establishment of the District and will be required to provide technical assistance to the District after establishment. The Petitioner will pay substantial sums in non- ad valorem assessments on real property within the District. Benefits to the Petitioner include access to public bond financing for certain improvements and a long-term stable source of capital, which will benefit the Petitioner's development project. In addition, consistently high levels of quality should be maintained. Consumers will pay District special assessments or fees for certain facilities; however, the District's facilities would be required even in the absence of the District itself. The cost would have to be recovered in some other way. Generally, district financing will be less expensive than maintenance through a property owners' association or capital improvements financed through developer loans. Benefits to consumers will include a higher level of public services and amenities than might otherwise be available, completion of District-sponsored improvements on a timely basis, and a larger share of direct control over community development services and facilities. The EIS concludes that the benefits from the District would outweigh the costs to each affected person or class of persons. Other Requirements Petitioner has complied with the provisions of Section 190.005(1)(b), Florida Statutes, regarding submission of the Petition and payment of 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 Volusia County for four consecutive weeks prior to the hearing. The notice was published in the Daytona Beach News Journal for four consecutive weeks, on Tuesdays, beginning September 13, 1994. Rule 42-1.011(1)(a), Florida Administrative Code, 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 submitted to the undersigned Hearing Officer at the local public hearing as Petitioner's Exhibit J and are a part of the record. Copies of the proofs of publication were furnished to the Secretary of the Commission as required on October 18, 1994. Rule 42-1.011(1)(b), Florida Administrative Code, 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 notice was mailed as required by the rule. Section 190.012(2)(a), Florida Statutes, provides that the District may exercise certain powers with respect to parks and facilities for indoor and outdoor recreational, cultural and educational uses, with the consent of the local general-purpose government. Section 190.012(2)(d) provides that the District may exercise certain powers with respect to security. On August 17, 1994, by Resolution No. 94-412, the City consented to the District's exercise of powers necessary to finance, plan, establish, acquire, own, construct, reconstruct, enlarge, extend, equip, operate, and maintain systems and facilities for parks, indoor and outdoor recreational, cultural and educational uses pursuant to Section 190.012(2)(a), Florida Statutes, and for security uses as provided in Section 190.012(2)(d), Florida Statutes. Conclusions Based upon the record of this proceeding, it is concluded that: This proceeding is governed by Chapters 190 and 120, Florida Statutes, and Chapter 42-1, Florida Administrative Code. The proceeding was properly noticed pursuant to Section 190.005(1)(d), Florida Statutes, by publication of an advertisement in a newspaper of general paid circulation in Volusia County and of general interest and readership once each week for the four consecutive weeks immediately prior to the hearing. The Petitioner has met the requirements of Section 190.005(1)(b), Florida Statutes, regarding the submission of the Petition and payment of a filing fee. The Petitioner bears the burden of establishing that the petition meets the relevant statutory criteria set forth in Section 190.005(1)(e), Florida Statutes. All portions of the petition and other submittals have been completed and filed as required by law. All statements contained within the petition as corrected and supplemented at the hearing are true and correct. The creation of the District is not inconsistent with any applicable element or portion of the State Comprehensive Plan or the effective City of Daytona Beach Comprehensive Plan, as amended. 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. The District is the best alternative available for delivering community development services and facilities to the area that will be served by the District. The community development services and facilities of the District will not be incompatible with the capacity and uses of existing local and regional community development services and facilities. The area to be served by the District is amenable to separate special district government. Respectfully submitted this 28th day of October, 1994, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of October, 1994 COPIES FURNISHED: David K. Coburn, Secretary Florida Land and Water Adjudicatory Commission Executive Office of the Governor 2101 Capitol Tallahassee, FL 32399-0001 Cheryl G. Stuart, Esquire Jonathan T. Johnson, Esquire Hopping Boyd Green & Sams 123 South Calhoun Street Post Office Box 6526 Tallahassee, FL 32314 Frank Gummey Office of the City Attorney City of Daytona Beach City Hall, Suite 220 Daytona Beach, FL 32095 EXHIBIT 1 PETITIONER'S WITNESSES AT HEARING William H. McMunn Indigo Development Inc. 149C South Ridgewood Avenue Daytona Beach, FL 32114 Fred A. Greene Gee & Jenson Engineers, Architects, and Planners One Harvard Circle West Palm Beach, FL 33409 Allen E. Salowe A.E. Salowe and Associates 1334 Plantation Oaks Drive, North Jacksonville, FL 32250 Gary R. Walters Gary Walters and Associates 12 Crooked Tree Trail Ormond Beach, FL 32174 EXHIBIT 2 LIST OF PETITIONER'S EXHIBITS Number Description Composite Petition to Establish the Indigo Exhibit A Community Development District Notice Published in the Florida Administrative Weekly on September 16, 1994 Letter from the East Central Florida Regional Planning Council to David Coburn Letter from the Department of Community Affairs to David Coburn Return Receipts from certified mailing of Copies of Notices of Local Public Hearing to Persons Specified in Rule 42-1.011(b), F.A.C. City of Daytona Beach Resolution 94-12, adopted August 17, 1994, recommending that the Indigo Community Development District be established in accordance with the petition of Indigo Development Inc. Resolution of County Council of Volusia County, Florida, adopted September 15, 1994, supporting establishment of proposed Indigo Community Development District LPGA DRI Development Order August 18, 1993 Affidavits of Citizenship and Residency for the Initial Board of Supervisors Copies of Proofs of Publication of Notice of Local Hearing, Published in the Daytona Beach News Journal on September 13, 20, 27 and October 4, 1994 CHAPTER 42_-1 EXHIBIT 3 TEXT OF PROPOSED RULE INDIGO COMMUNITY DEVELOPMENT DISTRICT 42_-1.001 Creation. 42-1.002 Boundary. 42-1.003 Supervisors. 42_-1.001 Creation. The Indigo Community Development District is hereby created. Specific Authority 190.005 FS. Law Implemented 190.005 FS. History--New _- - . 42_-1.002 Boundary. The boundaries of the district are as follows: A portion of Sections 8, 9, 16, 17, 20, 21, 22, 27, 28, 29, 32, 33, and 34, all being in Township 15 South, Range 32 East, Volusia County, Florida, being more particularly described as follows: As a Point of Reference, commence at a concrete monument marking the West one-quarter corner of said Section 9, being also the East one-quarter corner of said Section 8; thence run North 00 degrees 46'29" West, along the West line of said Section 9, being also the East line of said Section 8, a distance of 55.73 feet to a point in the Southerly right-of- way line of the 125-foot wide right-of-way of Eleventh Street, as shown on the State of Florida, Department of Transportation (F.D.O.T.) Right-of-Way Map, Section 79507-2602, sheet 11, revision dated October 29, 1974, said point being the POINT OF BEGINNING of this description, said point also lying in a curve, concave Southeasterly, and having a radius of 75.00 feet; thence run Northerly and Easterly, along said curve, a distance of 85.25 feet (85.22 feet per F.D.O.T. map), or through a central angle of 6507'49" (65 degrees 06'15" per F.D.O.T. map), having a chord distance of 80.73 feet and a chord bearing of North 31 degrees 47'25" East, to the Point of Tangency thereof; thence run North 64 degrees 21'19" East (North 64 degrees 17'40" East per F.D.O.T. map), along said Southerly right-of-way line, a distance of 1250.13 feet to a point therein; thence, departing said Southerly right-of-way line of Eleventh Street, run Southerly and Easterly, along a curve, concave Easterly, and having a radius of 397.81 feet; thence run Southerly and Easterly, along said curve, a distance of 268.87 feet, or through a central angle of 38 degrees 43'28", having a chord distance of 263.78 feet and a chord bearing of South 44 degrees 06'11" East to the Point of Tangency thereof; thence run South 24 degrees 44'27" East a distance of 230.27 feet; thence run South 39 degrees 17'04" East a distance of 192.82 feet to the Point of Tangency of a curve to the left, said curve having a radius of 4703.96 feet and a central angle of 04 degrees 07'28"; thence run Southerly and Easterly, along said curve, a distance of 338.61 feet, having a chord distance of 338.53 feet and a chord bearing of South 19 degrees 03'59" East to the Point of Compound Curvature of a curve to the left, said curve having a radius of 1638.51 feet and a central angle of 12 degrees 20'12"; thence run Southerly and Easterly, along said curve, a distance of 352.80 feet, having a chord distance of 352.12 feet and a chord bearing of South 27 degrees 17'49" East to the Point of Compound Curvature of a curve to the left, said curve having a radius of 471.84 feet and a central angle of 27 degrees 19'26"; thence run Southerly and Easterly, along said curve, a distance of 225.02 feet, having a chord distance of 222.89 feet and a chord bearing of South 47 degrees 07'39" East to the Point of Reverse Curvature of a curve to the right, said curve having a radius of 27654.59 feet and a central angle of 01 degrees 08'14"; thence run Southerly and Easterly, along said curve, a distance of 548.95 feet, having a chord distance of 548.94 feet and a chord bearing of South 60 degrees 13'14" East to the Point of Compound Curvature of a curve to the right, said curve having a radius of 817.82 feet and a central angle of 19 degrees 47'54"; thence run Southerly and Easterly, along said curve, a distance of 282.59 feet, having a chord distance of 281.19 feet and a chord bearing of South 49 degrees 45'10" East to the Point of Compound Curvature of a curve to the right, said curve having a radius of 689.52 feet and a central angle of 30 degrees 16'48"; thence run Southerly and Easterly, along said curve, a distance of 364.40 feet, having a chord distance of 360.18 feet and a chord bearing of South 24 degrees 42'50" East, to the Point of Reverse Curvature of a curve to the left, said curve having a radius of 44977.15 feet and a central angle of 00 degrees 54'22"; thence run Southerly and Easterly, along said curve, a distance of 711.30 feet, having a chord distance of 711.29 feet and a chord bearing of South 10 degrees 01'37" East to the Point of Reverse Curvature of a curve to the right, said curve having a radius of 85351.12 feet and a central angle of 00 degrees 15'35"; thence run Southerly and Easterly, along said curve, a distance of 386.86 feet, having a chord distance of 386.86 feet and a chord bearing of South 10 degrees 21'01" East to the Point of Reverse Curvature of a curve to the left, said curve having a radius of 2145.74 feet and a central angle of 09 degrees 15'55"; thence run Southerly and Easterly, along said curve, a distance of 346.99 feet, having a chord distance of 346.61 feet and a chord bearing of South 14 degrees51'11" East, to the Point of Compound Curvature of a curve to the left, said curve having a radius of 881.18 feet and a central angle of 21 degrees 38'42"; thence run Southerly and Easterly, along said curve, a distance of 332.89 feet, having a chord distance of 330.91 feet and a chord bearing of South 30 degrees 18'29" East, to the Point of Reverse Curvature of a curve to the right, said curve having a radius of 634.07 feet and a central angle of 24 degrees 08'12"; thence run Southerly and Easterly, along said curve, a distance of 267.11 feet, having a chord distance of 265.14 feet and a chord bearing of South 29 degrees 03'44'' East to the Point Reverse Curvature of a curve to the left, said curve having a radius of 7337.11 feet and a central angle of 02 degrees 02'20"; thence run Southerly and Easterly, along said curve, a distance of 261.10 feet, having a chord distance of 261.08 feet and a chord bearing of South 18 degrees 00'48" East to the Point of Tangency thereof; thence run South 75 degrees 29'28" East a distance of 61.32 feet; thence run South 45 degrees 02'04" East a distance of 70.58 feet; thence run South 55 degrees 22'59" East a distance of 74.58 feet; thence run South 53 degrees 54'44" East a distance of 123.51 feet; thence run South 53 degrees 27'15" East a distance of 110.00 feet; thence run South 25 degrees 20'31" East a distance of 199.03 feet; thence run South 61 degrees 52'08" West a distance of 217.66 feet; thence run South 21 degrees 39'56" East a distance of 456.10 feet; thence run North 70 degrees 19'19" East a distance of 249.84 feet; thence run South 07 degrees 17'17" East a distance of 254.15 feet; thence run South 01 degrees 10'43" East a distance of 246.45 feet; thence run South 28 degrees 04'00" West a distance of 57.51 feet; thence run South 27 degrees 37'10" West a distance of 91.14 feet; thence run South 29 degrees 24'23" West a distance of 101.59 feet; thence run South 28 degrees 22'25" West a distance of 56.54 feet; thence run South 23 degrees 10'06" West a distance of 116.83 feet to a point, said point lying in a curve, concave Easterly, said curve having a radius of 2566.72 feet and a central angle of 04 degrees 16'12"; thence run Southerly and Easterly, along said curve, a distance of 191.29 feet, having a chord distance of 191.24 feet and a chord bearing of South 02 degrees 24'11" East, to the Point of Compound Curvature of a curve to the left, said curve having a radius of 3397.22 feet and a central angle of 14 degrees 20'40"; thence run Southerly and Easterly, along said curve, a distance of 850.52 feet, having a chord distance of 848.30 feet and a chord bearing of South 11 degrees 42'37" East to the Point of Compound Curvature of a curve to the left, said curve having a radius of 1230.00 feet and a central angle of 25 degrees 00'33"; thence run Southerly and Easterly, along said curve, a distance of 536.88 feet, having a chord distance of 532.63 feet and a chord bearing of South 31 degrees 23'13" East to the Point of Compound Curvature of a curve to the left, said curve having a radius of 1009.14 feet and a central angle of 12 degrees 59'42"; thence run Southerly and Easterly, along said curve, a distance of 228.88 feet, having a chord distance of 228.39 feet and a chord bearing of South 50 degrees 23'21" East, to the Point of Tangency thereof; thence run South 56 degrees 53'12" East a distance of 101.20 feet to the Point of Curvature of a curve to the right, said curve having a radius of 405.47 feet and a central angle of 53 degrees 07'57"; thence run Southerly and Easterly, along said curve, a distance of 376.01 feet, having a chord distance of 362.68 feet and a chord bearing of South 30 degrees 19'14" East, to the Point of Compound Curvature of a curve to the right, said curve having a radius of 834.58 feet and a central angle of 26 degrees 48'32"; thence run Southerly and Westerly, along said curve, a distance of 390.50 feet, having a chord distance of 386.95 feet and a chord bearing of South 09 degrees 39'01" West to the Point of Reverse Curvature of a curve to the left, said curve having a radius of 540.74 feet and a central angle of 53 degrees 48'25"; thence run Southerly and Easterly, along said curve, a distance of 507.81 feet, having a chord distance of 489.36 feet and a chord bearing of South 03 degrees 50'55" East to the Point Reverse Curvature of a curve to the right, said curve having a radius of 7495.84 feet and a central angle of 02 degrees 38'23"; thence run Southerly and Easterly, along said curve, a distance of 345.34 feet, having a chord distance of 345.31 feet and a chord bearing of South 29 degrees 25'57" East to the Point of Compound Curvature of a curve to the right, said curve having a radius of 623.80 feet and a central angle of 27 degrees 41'49"; thence run Southerly and Easterly, along said curve, a distance of 301.55 feet, having a chord distance of 298.62 feet and a chord bearing of South 14 degrees 15'51" East to the Point of Reverse Curvature of a curve to the left, said curve having a radius of 2412.56 feet and a central angle of 07 degrees 28'54"; thence run Southerly and Easterly, along said curve, a distance of 315.03 feet, having a chord distance of 314.81 feet and a chord bearing of South 04 degrees 09'23" East, to the Point of Compound Curvature of a curve to the left, said curve having a radius of 1127.49 feet and a central angle of 10 degrees 57'01"; thence run Southerly and Easterly, along said curve, a distance of 215.48 feet, having a chord distance of 215.16 feet and a chord bearing of South 13 degrees 22'20" East, to a point; thence run South 30 degrees 31'09" West a distance of 635.44 feet; thence run South 12 degrees 13'30" East a distance of 98.61 feet; thence run South 16 degrees 03'21" East a distance of 72.06 feet; thence run South 17 degrees 09'45" East a distance of 11.25 feet; thence run South 17 degrees 05'17" East a distance of 60.81 feet; thence run South 18 degrees 02'24" East a distance of 72.04 feet; thence run South 19 degrees 05'10" East a distance of 72.08 feet; thence run South 20 degrees 02'54" East a distance of 71.99 feet; thence run South 21 degrees 05'34" East a distance of 72.08 feet; thence run South 22 degrees 53'29" East a distance of 108.95 feet; thence run South 04 degrees 10'49" West a distance of 45.54 feet to a point, said point lying in a curve, concave Northeasterly, said curve having a radius of 4147.11 feet and a central angle of 00 degrees 38'03"; thence run Southerly and Easterly, along said curve, a distance of 45.90 feet, having a chord distance of 45.90 feet and a chord bearing of South 23 degrees 57'44" East to a point; thence run South 73 degrees 04'08" West a distance of 247.53 feet; thence run South 16 degrees 55'52" East a distance of 69.97 feet; thence continue South 16 degrees 55'52" East a distance of 1234.58 feet; thence run South 67 degrees 37'05" West a distance of 94.86 feet to a point in the Southerly right-of-way line of a 50-foot wide State of Florida Outfall Ditch Easement, as described in deed from Tomoka Land Company, dated June 16, 1941, and recorded in Deed Book 291, Page 272, of the Public Records of Volusia County, Florida; thence run North 81 degrees 20'55" West (North 81 degrees 23'36" West per deed), along the Southerly line of said Outfall Ditch Easement, a distance of 800 feet, more or less, to a point in the Easterly bank of the Tomoka River; thence run Southerly and Easterly, along the Easterly bank of the Tomoka River, a distance of 8100 feet, more or less, to a point lying 5 feet Northerly of, as measured at right angles to, the Northerly right-of-way line of the 240-foot wide right-of-way of State Road #600 (U.S. Highway #92), as shown on the State of Florida, Department of Transportation Right-of-Way Map, Section 7906, revision dated July 12, 1940; thence run South 51 degrees 01'34" West (South 50 degrees 51'45" West per F.D.O.T. map) a distance of 5455 feet, more or less, to a point, said point being 5 feet Northeasterly of the Easterly right- of-way line of the aforementioned Eleventh Street; thence, running parallel to and 5 feet Northerly or Easterly from the right-of-way line of said Eleventh Street run the following courses and distances: South 74 degrees 43'02" West (South 74 degrees 38'29" West per F.D.O.T. map), a distance of 388.29 feet; thence run North 75 degrees 52'42" West (North 75 degrees 57'15" West per F.D.O.T. map) a distance of 745.26 feet; thence run North 61 degrees 40'39" West (North 61 degrees 45'12" West per F.D.O.T. map) a distance of 588.04 feet; thence run South 39 degrees 33'17" West to the Easterly right-of-way line of said Eleventh Street (at this point the right-of-way of Eleventh Street becomes 200 feet wide); thence run North 39 degrees 03'42" West (North 39 degrees 08'15" West, 4016.04 feet, per F.D.O.T. map) a distance of 4015.80 feet to a point therein, said point lying in a curve, concave Northerly, and having a radius of 1841.75 feet; thence run Northerly and Westerly, along said curve, a distance of 864.15 feet, or through a central angle of 26 degrees 53'00", having a chord distance of 886.25 feet and a chord bearing of North 25 degrees 37'12" West to the Point of Cusp of a curve, concave Southerly, and having a radius of 100.00 feet; thence run Southerly and Easterly, along said curve, a distance of 170.88 feet, or through a central angle of 97 degrees 54'24", having a chord distance of 150.83 feet and a chord bearing of South 61 degrees 12'48" East to the Point of Reverse Curvature of a curve to the left, said curve having a radius of 2177.89 feet and a central angle of 10 degrees 25'48"; thence run Northerly and Easterly, along said curve, a distance of 396.46 feet, having a chord distance of 395.91 feet and a chord bearing of North 64 degrees 37'06" East to the Point of Compound Curvature of a curve to the left, said curve having a radius of 699.34 feet and a central angle of 16 degrees 47'06"; thence run Northerly and Easterly, along said curve, a distance of 204.87 feet, having a chord distance of 204.14 feet and a chord bearing of North 51 degrees 00'40" East to the Point of Curvature of a curve to the left, said curve having a radius of 2039.93 feet and a central angle of 19 degrees 56'00"; thence run Northerly and Easterly, along said curve, a distance of 709.70 feet, having a chord distance of 706.13 feet and a chord bearing of North 32 degrees 39'07" East to the Point of Reverse Curvature of a curve to the right, said curve having a radius of 1357.26 feet and a central angle of 22 degrees 20'20"; thence run Northerly and Easterly, along said curve, a distance of 529.18 feet, having a chord distance of 525.83 feet and a chord bearing of North 33 degrees 51'17" East to the Point of Tangency thereof; thence run North 45 degrees 01'27" East a distance of 357.30 feet to the Point of Curvature of a curve to the left, said curve having a radius of 970.00 feet and a central angle of 02 degrees 36'05"; thence run Northerly and Easterly, along said curve, a distance of 44.04 feet, having a chord distance of 44.04 feet and a chord bearing of North 43 degrees 43'24" East to a point; thence run South 30 degrees 39'13" East a distance of 91.14 feet; thence run North 39 degrees 50'12" East a distance of 2033.09 feet to a point in the Southerly line of the City of Daytona Beach Sewage Treatment Plant, as described in Official Records Book 1875, Page 1551, of the Public Records of Volusia County, Florida; thence run North 89 degrees 33'20" East (North 89 degrees 33'15" East per deed), a distance of 294.14 feet to the Southeast corner of said parcel; thence run North 00 degrees 37'30" West (North 00 degrees 37'36" West, 1947.42 feet per deed) a distance of 1947.54 feet to the Northeast corner of said parcel, said point also lying in the Southerly line of a 50-foot wide City of Daytona Beach Easement as described in Official Records Book 1478, Page 598, of the Public Records of Volusia County, Florida; thence run South 70 degrees 42'56" West (South 70 degrees 43'27" West, 862.55 feet, per Sewage Treatment Plant deed and South 70 degrees 37'55" West per Easement deed) along the Northerly line of said Sewage Treatment Plant parcel and the Southerly line of said Easement, a distance of 862.59 feet; thence run South 89 degrees 33'29" West (South 89 degrees 33'15" West, 1183.16 feet per Sewage Treatment Plant deed and South 89 degrees 33'15" West, 1183.93 feet per Easement deed) a distance of 1183.22 feet to the Northwest corner of said Sewage Treatment Plant parcel and the end of said Easement, said point also lying in the East line of the City of Daytona Beach Well Field Site, as described in Official Records Book 92, Page 687, of the Public Records of Volusia County, Florida; thence run North 00 degrees 34'23" West, along the East line of said City of Daytona Beach Well Field Site, a distance of 50.00 feet to the Northeast corner thereof; thence run South 89 degrees 33'09" West, along the North line of said City of Daytona Beach Well Field Site, being also the North line of Section 29, Township 15 South, Range 32 East, a distance of 1281.00 feet to an intersection with the Easterly right-of-way line of the aforementioned Eleventh Street; thence run North 00 degrees 06'57" West (North 00 degrees 11'30" West per F.D.O.T. map), along said Easterly right-of-way line, a distance of 11083.14 feet to the Point of Curvature of a curve to the right, said curve having a radius of 1809.86 feet and a central angle of 64 degrees 28'16"; thence run Northerly and Easterly, along said curve, a distance of 2036.39 feet, having a chord distance of 1930.65 feet and a chord bearing of North 32 degrees 07'11" East, to the Point of Tangency thereof; thence run North 64 degrees 21'19" East (North 64 degrees 16'30" East per F.D.O.T. map), along the Southerly line of said Eleventh Street, a distance of 1553.03 feet; thence run North 89 degrees 13'54" East a distance of 67.62 feet to the POINT OF BEGINNING of this description, EXCEPTING THEREFROM the State of Florida Sovereignty Lands of the Tomoka River, the L.P.G.A. Golf Course, as described in Official Records Book 3799, Page 1647, the L.P.G.A- Entrance Road, Phase I (now known as Champions Drive), as described in Official Records Book 3713, Page 1288, and a portion of Section 33, Township 15 South, Range 32 East, deeded from Patricia Lagoni, as Trustee, to Florida Power & Light Company, as described in Official Records Book 3783, Page 2241, all of the Public Records of Volusia County, Florida, and the City of Daytona Beach Maintenance Building Access Road, said parcel also being subject to Florida Power & Light Company Easements as described in Official Records Book 170, Pages 347-349, Official Records Book 511, Pages 86-88, and Official Records Book 1335, Page 500, all of the Public Records of Volusia County, Florida, and also being subject to any other easements of record, said parcel having a net acreage of 2,480 acres, more or less. Specific Authority 190.005 FS. Law Implemented 190.004, 190.005 FS. History-- New _ - - . 42_-1.003 Supervisors. The following five persons are designated as the initial members of the Board of Supervisors: Joseph Benedict, III; Patricia Lagoni; Gary Moothart; William H. McMunn; Bruce H. Teeters. Specific Authority 120.53(1), 190.005 FS. Law Implemented 190.006(1) FS. History--New - - .
The Issue The issue presented in this proceeding is whether the Petition to Expand the Boundaries of the Bella Collina Community Development District (Petition) meets the applicable criteria in chapter 190, Florida Statutes (2018), and Florida Administrative Code Chapter 42-1. The purpose of the local public hearing was to gather information in anticipation of quasi-legislative rulemaking by the Florida Land and Water Adjudicatory Commission (Commission).
Conclusions This proceeding is governed by chapters 120 and 190 and chapter 42-1. The proceeding was properly noticed pursuant to section 190.005(1)(d) by publication of an advertisement in a newspaper of general paid circulation in Lake County of general interest and readership, once each week for the four consecutive weeks immediately prior to the hearing. Petitioner has met the requirements of section 190.005(1)(a) regarding the submission of the Petition and satisfaction of the filing fee requirements. Petitioner bears the burden of establishing that the Petition meets the relevant statutory criteria set forth in section 190.005(1)(e). All portions of the Petition and other submittals have been completed and filed as required by law. All statements contained within the Petition are true and correct. The expansion of the District is not inconsistent with any applicable element or portion of the State Comprehensive Plan or the effective County Comprehensive Plan. The area of land within the Expanded District remains of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developable as one functional interrelated community. The Expanded District remains the best alternative available for delivering community development services and facilities to the area that will be served by the Expanded District. The community development services and facilities of the Expanded District will not be incompatible with the capacity and uses of existing local and regional community development services and facilities. The area to be served by the Expanded District remains amenable to separate special-district government. Based on the record evidence, the Petition satisfies all of the statutory requirements and, therefore, there is no reason not to grant Petitioner's request for expanding the boundaries of the existing District, as requested by Petitioner. DONE AND ENTERED this 7th day of March, 2019, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of March, 2019. COPIES FURNISHED: Cynthia Kelly, Secretary Florida Land and Water Adjudicatory Commission Room 1802, The Capitol Tallahassee, Florida 32399-0001 Nicholas A. Primrose, Esquire (Attorney for the Commission) Executive Office of the Governor Suite 209, The Capitol 400 South Monroe Street Tallahassee, Florida 32399-0001 (eServed) Molly Weller, Agency Clerk Transportation and Economic Development Policy Unit Room 1802, The Capitol Tallahassee, Florida 32399-0001 (eServed) Andrew C. d'Adesky, Esquire Latham, Shuker, Eden & Beaudine, LLP Suite 1400 111 North Magnolia Avenue Orlando, Florida 32801-2367 (eServed) Patricia R. McConnell, Esquire Latham, Shuker, Eden & Beaudine, LLP Suite 1400 111 North Magnolia Avenue Orlando, Florida 32801-2367 William Chorba, General Counsel Department of Economic Opportunity Caldwell Building, MSC 110 107 East Madison Street Tallahassee, Florida 32399-4128 (eServed)
The Issue Whether a consumptive-use permit for quantities of water as applied for should be granted.
Findings Of Fact Applicant applied for a permit for a public supply of water from two (2) wells to accommodate 3,100 family units in Hillsborough County, Florida. Each well to be 500 feet deep and designated as "new use", i.e., a use not existing prior to January 1, 1975. Well "No. 1" would draw 72,000 gallons per day and well "No. 2", 682,000 gallons per day. The center of withdrawal is located at latitude 28 degrees 6' 18" North, longitude 82 degrees 29' 48" West in Hillsborough County, Florida. The applicant lists 802.2 acres as being owned, leased or otherwise controlled by it. Notice was published in a newspaper of general circulation, to-wit: The Tampa Tribune on April 28 and May 5, 1975, pursuant to Section 373.146, Florida Statutes. Notices of said public hearing were sent by certified mail to Lorenzo Lakes, A Joint Venture, Route 2, Box 737A, Lutz, Florida, and Hillsborough Dairy, Route 1, Box 115, Tampa, Florida A letter was received although it was not designated a letter of objection. The author of said letter is present at this hearing. His name is Mr. John Logan, Water Resources Director, Hillsborough County, Florida. The letter suggests that action on the subject application would be inappropriate at this time inasmuch as a part of the development is to be deeded to Hillsborough County for public roadways. A specific area does not appear to be established but it may exceed 50 acres. Additional acreage may be needed for flood easements for the extension of channel "F", a proposed part of the upper Tampa Bay Watershed Project. No formal letters of objection were received. The following exhibits were introduced without objection: Application for permit Proof of publication Letter from Mr. John Logan The witnesses were duly sworn and agreement by the parties reached on each point to be considered under Chapter 373, Florida Statutes, and the Rules and Regulations promulgated pursuant thereto, particularly Rule 16J-2.11, with the exception that certain conditions were recommended by Mr. George Szell, Hydrologist for the Permittee, and said conditions were agreed to by the Permittee. Mrs. Sally Casper appeared as a member of the public questioning the need for new housing and objecting in essence to Rule 16J-2.11(2)(e) which restricts consideration of lake stages or vegetation to those not controlled by the applicant. Upon the request of the Hearing Officer the parties agreed to enter into a joint order of stipulation and submit said order to the Hearing Officer. Said stipulation was received by the Hearing Officer on July 7, 1975, and is attached hereto and made a part hereof and marked "Supplement to Record".
The Issue The issue is whether Respondent's certification as a minority business enterprise should be revoked, as proposed by Petitioner in its letter dated December 20, 2001.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background Respondent, Civil Construction Technologies, Inc. (CCT), is a corporation engaged in the business of providing earthwork, clearing, canal excavation, and erosion control services for prime contractors. The firm was incorporated on April 6, 2000, and until November 2001, it was located at 1132 Northeast 48th Street, Pompano Beach, Florida. The business was then relocated to 3100 Northwest Boca Raton Boulevard, Boca Raton, Florida. The sole owner and shareholder is Bonnie S. Cramer, a female who qualifies as a minority under the Supplier Diversity & Outreach Program (Program) codified in Part VI, Chapter 40E-7, Florida Administrative Code. That Program is administered by Petitioner, South Florida Water Management District (District). CCT's application for certification as a minority business enterprise (MBE) was filed with the District on December 12, 2000, and was approved on December 15, 2000, in the areas of earthwork, clearing, canal excavation, and erosion control. The certification expires on December 15, 2003. Although the District had "some concerns" regarding Ms. Cramer's knowledge of the business during its review of the application, it gave her "the benefit of the doubt on the application because she had worked in the industry." On August 22, 2001, the District held a "partnering" meeting for all contractors, including CCT, on a pump station project awarded to Beers Stanska, Inc. (the Beers project). CCT was represented at the meeting by Ronald J. Coddington (Ron Coddington), a non-minority professional engineer who had worked on other District projects in the past and owns an earthwork company. Coddington's attendance on behalf of a minority contractor raised suspicions on the part of a District contract administrator, Jessica Flathmann, who also attended the meeting. Ms. Flathmann, who is now on active duty with the military, prepared a short note the same date requesting that the District's compliance section "[p]lease check out [CCT's] information (minority status) with state on-line info." The "state on-line info" refers to the Department of State's web site for Florida corporations. A subsequent name search under the Department of State's corporation records revealed that since at least 1987 Ms. Cramer had been an officer and/or director in a number of other corporations, including Team Land Holdings, Inc. (vice- president, secretary, treasurer, and 50 percent owner), Team Environmental Resources, Inc. (owner, president, vice- president, and secretary-treasurer), Team Land Development, Inc. (treasurer), Team Offshore Services, Inc. (secretary- treasurer), Team Marine Services, Inc. (director and secretary-treasurer), and R.J. Coddington and Associates, P.A. (vice-president). Except for Team Environmental Resources, Inc., Ron Coddington was a principal in, and owner of, all of the other corporations. Because Ms. Cramer had failed to acknowledge a relationship with any other firms on her application, the District decided to conduct an investigation concerning CCT's eligibility for MBE status. Based on a site visit to Ms. Cramer's office, and an interview with her, the District determined that decertification proceedings were appropriate. By letter dated December 20, 2001, as later clarified during discovery, the District alleged that CCT made a material misrepresentation on its original application for certification in violation of Rule 40E-7.653(2), Florida Administrative Code; that CCT "shared resources with a non-minority person or business in the same or an associated field" in violation of Rule 40E- 7.653(6)(a) and (b), Florida Administrative Code; and that CCT's owner, Ms. Cramer, "does not possess the knowledge and technical expertise to manage the day-to-day activities of her firm." Respondent denies all allegations. It also suggests that the District's real purpose in revoking the certification is because of animosity between certain District personnel and Ron Coddington, with whom Ms. Cramer has had a personal relationship and is now engaged to marry. Material Mispresentation The District first alleges that Petitioner made a material mispresentation on its application for certification by answering Question 20 in the negative. That question reads as follows: ARE ANY OWNERS, PARTNERS OR PRINCIPALS OF YOUR COMPANY AFFILIATED WITH ANY OTHER FIRM(S) AS EMPLOYEES, SHAREHOLDERS, OR DIRECTORS? If Yes, please list below, attach a written explanation of the business relationship and provide a financial statement for the affiliate firm(s). Ms. Cramer answered Question 20 "No." At the end of the application, she executed a lengthy affidavit acknowledging that all of the statements contained in the application were "true, accurate and complete." When the question was answered, Ms. Cramer was a vice-president, secretary, treasurer, and part-owner of Team Land Holdings, Inc., a corporation which owned the building listed as the business address for CCT and two corporations in which Ron Coddington was a principal. As to Team Environmental Services, Inc. and Team Land Development, Inc., however, the parties disagree on Ms. Cramer's status in those corporations at the time the application was filed. The other corporations are not in issue since they are no longer active or Ms. Cramer has resigned as an officer, director, or employee. Ms. Cramer was president, vice-president, secretary, and treasurer of Team Environmental Services, Inc. and filed the paperwork to incorporate the business. She indicated that the corporation "never did any business," had no income, closed its books in either April or August 2000, and filed its final tax return for calendar year 2000. Even so, Ms. Cramer continued to file annual reports with the Secretary of State for two more years after the corporation allegedly closed its books, and she did not file Articles of Dissolution for the corporation until April 2002, or just before her deposition in this case was taken. Given these circumstances, it is found that Ms. Cramer was still affiliated with an active corporation at the time she filed her application, and this information should have been disclosed. Beginning in 1987 and continuing until May 2000, Ms. Cramer was a director, officer, and employee of Team Land Development, Inc., a firm engaged in the earthwork business and owned by Ron Coddington. However, Ms. Cramer submitted into evidence a letter to Ron Coddington dated May 10, 2000, tendering her resignation as an officer and director. The authenticity of that letter was not challenged. She also testified that she resigned as an employee around March 2000. While the record shows that Ms. Cramer prepared and filed the annual report for the company in 2001, or after she had resigned as an employee, she explained that she was simply helping out by doing some "extra accounting" for the firm even though she was no longer on the payroll. In light of these circumstances, there is less than clear and convincing evidence that Ms. Cramer was affiliated with Team Land Development, Inc. at the time she submitted her application for certification, and thus she was not required to disclose her relationship with that entity. One of the purposes of Question 20 is to determine if an applicant has a parent company, affiliates, or subsidiaries. This information is then used by the District to determine whether the applicant has true management and control over the business or whether another entity has actual control over the applicant. The information is also used to determine whether the applicant meets the size standards for MBEs when combined with the affiliates. This is important because District regulations establish certain size thresholds (in terms of net assets and number of employees) which an applicant cannot exceed. It can be inferred from the evidence that for these reasons, the District considers the information in Question 20 to be material since the information is essential in order to properly review a MBE application. Ms. Cramer, who signed the application, suggested that Question 20 was ambiguous and unclear. However, Ms. Cramer never sought guidance from District personnel to clear up any confusion she might have, nor did she read the MBE rule itself. Rather, she interpreted the question as requiring an affirmative response only if she was affiliated with another firm involved "in [a] similar or same field" as CCT. Because the two corporations in which she was then affiliated did not provide the same or similar services as CCT, she responded in the negative. Question 20 is clear and unambiguous. It simply requires an applicant to identify any other corporation or entity in which the applicant is affiliated. The question does not mention, or even suggest, that an affirmative answer is required only if the other entity is in the same or similar field as the applicant's business. Respondent's contention that the question was ambiguous and susceptible to more than one interpretation has been rejected. The only remaining issue is whether the omitted information was "material" so as to constitute a ground for revocation of the certification. As noted above, the District considers the information derived from Question 20 to be material since that information is necessary to carry out its responsibility of determining an applicant's eligibility. Therefore, the failure by Ms. Cramer to disclose her relationship with two corporations was a material omission, as alleged in the letter of December 20, 2001. Did CCT share resources with a non-MBE? Petitioner next alleges that CCT shared resources with a non-minority person or business which is in the same field of operations in violation of Rule 40E-7.653(6)(a) and (b), Florida Administrative Code. Those provisions require that the minority owner demonstrate its independence and that the business does not share common ownership, directors, or facilities with a non-minority person or business in the same or related field of operations. Ron Coddington is the owner of Team Land Development, Inc. (TDI), an earthmoving company which performed contract work for the District until January 2002, and for whom CCT was a subcontractor on two District projects. TDI's business address was 1132 Northeast 48th Street, Pompano Beach, which is the same address used by CCT until November 2001. In addition, R.J. Coddington & Associates, Inc., an engineering firm owned by Ron Coddington, also listed that street address as its business address for the years 2000 and 2001. That firm provides engineering services through Mr. Coddington's professional engineering license. Thus, the three corporations shared the same address from April 2000 (when CCT was incorporated) until November 2001. A small office building is located at 1132 Northeast 48th Street and is owned by Team Land Holdings, Inc., a company in which Ron Coddington and Ms. Cramer each owns 50 percent of the stock. The exact configuration of the offices within the building is not clear although Ms. Cramer testified that the building once had three separate "suites," each with a separate entrance, and that CCT occupied an office in the back of the building with a conference table that was used for all CCT meetings. However, when District investigators visited the building for an interview with Ms. Cramer in October 2001, they entered a common entrance, met her in a "front" office area, and were not invited into a separate office in the back of the building. Likewise, when they interviewed Ron Coddington during the course of this proceeding, he also met them in the same front area and did not invite them into a separate office. Respondent contended that the three firms only shared a fax machine and a kitchen area used primarily for storage purposes. Even so, the more clear and convincing evidence supports a finding that three corporations, including at least one engaged in the same business as CCT, were sharing facilities, as prohibited by the rule. Therefore, it is found that from December 2000 when it was first certified, and until November 2001, CCT shared facilities (offices) with a non-MBE business (Team Land Development, Inc.) which was engaged in the same business (earthmoving) as CCT. Did Ms. Cramer possess the knowledge and experience to operate her business? Finally, the District alleges that Ms. Cramer "does not possess the knowledge and technical expertise to manage the day-to-day activities of her firm," as required by Rule 40E-7.653(5)(c)4., Florida Administrative Code. That rule requires that Ms. Cramer have "managerial and technical capability, knowledge, training, education and experience required to make decisions regarding that particular type of work." To support this allegation, the District relies upon a report prepared by the District's Inspector-General on December 6, 2001; the results of an interview with Ms. Cramer conducted in January 2002 by a professional engineer; and the deposition of Ms. Cramer taken during the spring of 2002 in preparation for the final hearing. Ms. Cramer's background is in accounting and bookkeeping. She is not an engineer. Indeed, on her personal income tax return for the year 2000, she listed her occupation as an accountant. She also admits that she is not an expert in earthmoving, nor does she have experience working at job sites overseeing that type of work. According to the resume attached to her application, and before CCT was incorporated, Ms. Cramer was employed in the following positions, some of which were apparently part- time: (1) bank teller and branch manager of a bank (1972- 1981); (2) bookkeeper for an upholstery firm (1981-1998); owner of a music store (1982-1985); accounting assistant for a general contractor (1985-1987); accounting assistant to a certified public accountant (1987-1998); and treasurer of Team Land Development, Inc. (1987-1999). The same resume represents that CCT's "typical work" includes canal excavation, erosion control and dewatering, and wetland construction. It also indicates that the firm provides "earthwork and construction solutions for prime contractors," as well as "skilled, knowledgeable personnel providing a variety of earthwork, erosion control and site environmental mitigation services." In issuing its proposed agency action, the District relied in part upon an investigation conducted by Mr. Sooker, a certified public accountant in its Inspector-General's Office. Mr. Sooker performed an on-site "audit" of CCT on October 30 and 31, 2001. The audit included an interview with Ms. Cramer and the examination of various documentation related to the business. In his report, Mr. Sooker concluded that CCT did not meet eligibility standards for a MBE for several reasons, including an opinion that Ms. Cramer "d[id] not possess the background, experience, and technical expertise to manage and control job site work activities." After the letter of December 20, 2001, was issued, Ms. Cramer requested a meeting with the District to demonstrate that she had the necessary experience to manage the day-to-day operations of an earthmoving company. The meeting was held in January 2002. At that time, a District professional engineer, Mr. Weldon, who has extensive experience in earthmoving, posed a series of questions to Ms. Cramer regarding her knowledge of that business. While Respondent contends that Mr. Weldon's interview was flawed in many respects, it is found that the interview was a reasonable and appropriate way in which to test Ms. Cramer's qualifications to operate an earthmoving business. In response to many of the questions, Ms. Cramer simply stated that she would rely on her foreman and project manager to resolve the issues raised by the engineer. As to the remaining inquiries, she failed to demonstrate any technical expertise in the area. Thus, the meeting reconfirmed the District's preliminary conclusion (found in Mr. Sooker's report) regarding Ms. Cramer's lack of technical expertise in the area for which CCT was certified. During a deposition taken prior to hearing, Ms. Cramer was also asked a series of questions pertaining to earthmoving to ascertain the degree of experience and competence that she possessed. Again, Ms. Cramer failed to demonstrate that she had the requisite experience necessary to manage her business. For example, Ms. Cramer was unfamiliar with the term "shrinkage," a term commonly used in the business; she could not describe a method for estimating canal excavation or factors necessary to make that estimate; she could not state what type of equipment would be used if the material being excavated had dense sand, weak limestone, or cemented shells; she was unaware that soil borings would indicate the presence of rock in the material being excavated; and she could not describe the process for excavating and constructing a berm "with haul that would affect equipment collection." An experienced person in the field of earthmoving would be expected to correctly answer most, if not all, of these inquiries. Thus, Ms. Cramer did not demonstrate any level of experience or firsthand knowledge in operating an earthwork company. While she was able to respond more accurately to some of these same questions at the final hearing, the undersigned assumed that she could do so only because the intervening time between the deposition and final hearing allowed her to consult with experts and prepare her answers. In addition, Ms. Cramer acknowledged that she has never been a project manager for any construction job, including those that CCT has contracted to perform; she has never operated any heavy equipment; she has never personally prepared job estimates involving plans and specifications by herself; she cannot read construction plans and specifications; she has not negotiated any contracts for CCT; and she has never attended any meetings that the District has held for the Beers project. On the Beers project, in which CCT is a subcontractor for the prime contractor, notices of safety violations by CCT employees are sent to Ron Coddington's attention, and the first subcontract agreement between Beers and CCT was also sent to his attention. In fact, in correspondence to CCT, the Beers office manager for the project assumed that Ron Coddington was president of the firm. At the same time, Ms. Cramer relies heavily on her foremen and Ron Coddington (who serves as a $1,600.00 per week consultant) to deal with all technical aspects of her business and to answer questions regarding the Beers project. She further acknowledged that she has delegated a number of tasks on the Beers project to Ron Coddington, such as providing estimates and bid takeoffs; providing on-site project management; preparing project schedules and monthly estimates; making on-site inspections; coordinating on-site surveys and quality control with CCT employees; assuming responsibility for owner and prime contractor conduct on the District pump station projects; and representing CCT at all job coordination meetings. Notwithstanding the above, Respondent contends that the Inspector-General's report dated December 6, 2001, is the primary underpinning for the District's case and that the report is flawed in numerous respects. For example, the Inspector-General's Office has an operations manual which spells out the manner in which investigations shall be conducted. Contrary to specific requirements in the operations manual, Mr. Sooker did not prepare, sign, and file a statement of independence, and he did not maintain and preserve working papers, outlines of questions, and interview notes in the investigative file. These deficiencies were confirmed through the testimony of Respondent's expert, Mr. Kirchenbaum, a certified public accountant, as well as the Inspector-General himself. While Mr. Sooker's investigation admittedly did not fully conform with the operations manual, his conclusions regarding Ms. Cramer's experience were independently verified and reconfirmed through the interview with Ms. Cramer in January 2002 and the answers given by her in the deposition taken in April 2002. Therefore, even if Mr. Sooker's report is ignored, there is other clear and convincing evidence to support the allegations in the letter of December 20, 2001. For the foregoing reasons, it is found that Ms. Cramer does not have managerial and technical capability, knowledge, training, education, and experience required to make decisions regarding the type of business in which she is certified, as alleged in the letter of December 20, 2001.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the South Florida Water Management District enter a final order revoking the MBE certification of Civil Construction Technologies, Inc. DONE AND ENTERED this 25th day of October, 2002, in Tallahassee, Leon County, Florida. ___________________________________ DONALD R. ALEXANDER 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 25th day of October, 2002. COPIES FURNISHED: Henry Dean, Executive Director South Florida Water Management District Post Office Box 24680 West Palm Beach, Florida 33416-4680 Catherine A. Linton, Esquire South Florida Water Management District Post Office Box 24680 West Palm Beach, Florida 33416-4680 Bradford J. Beilly, Esquire Bradford J. Beilly, P.A. 400 Southeast 18th Street Fort Lauderdale, Florida 33316-2820
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 issue before the Florida Land and Water Adjudicatory Commission (FLWAC) in this proceeding is whether the Petition to Establish the Three Creeks Community Development District (Petition) meets the criteria set forth in Chapter 190, Florida Statutes, and Chapter 42-1, Florida Administrative Code. The local public hearing was for the purpose of gathering information in anticipation of quasi-legislative rulemaking by FLWAC.
The Issue Whether Rule 27G-1.06(2) and Rule 27G-1.08(4), Florida Administrative Code, or either of them, is an invalid exercise of delegated legislative authority?
Findings Of Fact The parties have stipulated that Fairfield Communities, Inc. (Fairfield) has the requisite standing to challenge the rule provisions at issue and that Friends of Fort George, Inc., (Friends), Florida Wildlife Federation (FWF) and Florida Audubon Society (Audubon) have standing to participate as intervenors in support of these rule provisions. The Florida Land and Water Adjudicatory Commission (FLWAC) is the state agency that promulgated the challenged rules. The Fort George DRI case, No. 86-4127, began on August 1, 1986, when the Department of Community Affairs took an appeal of the development order entered by the City of Jacksonville on June 12, 1986 on grounds The MLUP does not accurately show or locate the DER jurisdictional line on the western side of the island from which buffer areas required by the ADO are to be measured . . . The MLUP does not properly or accurately depict or locate buffer areas surrounding the sloughs on the western side of Fort George Island. Exhibit B to the Prehearing Stipulation. Together with others, the Intervenors in the present case filed, in the Fort George DRI case, No. 86-4127, a motion to intervene as of right and request for consideration of additional issues on August 7, 1986. The intervenors in No. 86-4127 sought consideration of a wide range of issues in the Fort George DRI case, including questions concerning Blue Pond, the perimeter buffer zone, the interior habitat, weirs, berms, dikes and hydraulic connections, the adequacy of the water supply, the effect of the Game and Fresh Water Fish Commission's disapproval, the placement of various boundaries, and whether "Fairfield has failed to provide adequate protection of the microclimate and ecology of the Rollins Bird and Plant Sanctuary as mandated by the ADO . . ." Exhibit C to the Prehearing Stipulation. In filing their motion to intervene as of right and request for consideration of additional issues in No. 86-4127, Friends, Audubon and FWF expressly relied on Rule 27G-1.06, Florida Administrative Code. The portion under challenge here provides: (2) Motions to intervene filed with the Commission within 30 days of the filing of a notice of appeal may request the Commission to consider issues raised in the record below but not raised by the parties to the appeal. Rule 27G-1.06, Florida Administrative Code. In the order of transmittal, entered in No. 86-4127 on October 15, 1986, FLWAC denied consideration of every issue raised by the intervenors, except for the issue concerning the Rollins Bird and Plant Sanctuary, and added a related issue, also concerning the Rollins Bird and Plant Sanctuary, citing Rule 27G- 1.08, Florida Administrative Code. The portion of that rule under challenge here provides: Within 60 days of receipt of a notice of appeal, the Commission shall meet to review the issues raised by the parties. If the Commission determines that an issue of statewide or regional importance was not raised by the parties but is necessary to its disposition of the appeal, the Commission shall specify said issue and shall specify whether the issue shall be the subject of review based on the record made below, additional evidence or a combination thereof. New issues shall not be raised by the parties or other persons after this Commission meeting. At this meeting, the Commission may also dispose of procedural motions, including motions to intervene, which have been filed within 30 days of the filing of the notice of appeal. Rule 27G-1.08, Florida Administrative Code. Fairfield, as the applicant for the development order in No. 86- 4127, questions FLWAC's authority to promulgate rules that allow FLWAC to consider issues not raised by the party who took the DRI appeal, whether sua sponte or on motion of an intervenor.
Conclusions Based on the entire record in this matter, it is concluded that the evidence supports or meets each of the criteria listed in section 19o.005(1)(e), F.S. That all statements contained within the Petition as corrected at the hearing are true and correct. That the creation of the District is consistent with all applicable elements of the State Comprehensive Plan, the Brevard County Comprehensive Plan as amended, and the City of Rockledge Comprehensive Plan. That 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. That the District is the best alternative available for delivering community development services and facilities to the area that will be served by the District. That the community development services and facilities of the District will be compatible with the capacity and uses of existing local and regional community development services and facilities. That the area to be served by the District is amenable to separate special district government. DONE and ENTERED this 22nd day of January, 1991, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of January, 1991. APPENDIX APPENDIX A PETITIONER'S WITNESSES John R. Maloy The Viera Company 1802 South Fiske Boulevard Rockledge, Florida 32955 Fred Greene Gee & Jenson One Harvard Circle West Palm Beach, Florida 33409 Jack F. Glatting Glatting Lopez Kercher Anglin 33 East Pine Street Orlando, Florida 32801 Henry H. Fishkind, Ph.D. Fishkind & Associates, Inc. 507 North New York Avenue Suite 301 Winter Park, Florida 32789 Gary L. Moyer 10300 Northwest Eleventh Manor Coral Springs, Florida 33065 APPENDIX B LIST OF EXHIBITS AT HEARING Exhibit Description Composite exhibit of notice Petition to Establish the Viera East Community Development District as filed, with the exhibits: District Location Map Metes & Bounds Description Documentation of Ownership Map of Existing Uses Land Use Plan Existing Drainage Basins and Outfall Canals Estimated Infrastructure Cost Brevard County Comprehensive Plan City of Rockledge Comprehensive Plan Economic Impact Statement Designation of Agent Receipts for filing fee from City of Rockledge and Brevard County DRI Development Order for the Viera East Project -- Brevard County DRI Development Order for the Viera East Project -- City' of Rockledge Approved Brevard County Comprehensive Plan Amendments for Viera East DRI APPENDIX C MEMBERS OF THE PUBLIC John Fleming 944 Bridle Lane Rockledge, Florida Lee Wenner 1060 Matador Drive Rockledge, Florida Robert Preston 939 Bridle Place Rockledge, Florida Al Miller 26 South Hardee Circle Rockledge, Florida Janice Peterson 975 Beechfern Lane Rockledge, Florida APPENDIX D VIERA EAST COMMUNITY DEVELOPMENT DISTRICT CHAPTER 42 - VIERA EAST COMMUNITY DEVELOPMENT DISTRICT 42 - Creation. 42 - Boundary. 42 - Supervisors 42 - Creation. The Viera East Community Development district is hereby created. 42 - Boundary. The boundaries of the district are as follows: PARCEL 1 All of Section 27 and portions of Sections 22, 26, 28, 33, 34 and 35, Township 25 South, Range 36 East, and portions of Sections 2, 3, 4, 10 and 11, Township 26 South, Range 36 East, all in Brevard County, Florida, being more particularly described as follows: Commence at the Southeast corner of said Section 10 and run N00058'45"W along the East line of said Section 10, for a distance of 50.04 feet to the North right of way line of Wickham Road and the POINT OF BEGINNING of the following described parcel; thence S86240'00"W along said North right of bay line of Wickham Road 1,791.05 feet; thence continue along said North right of way line S89231'32"W for 1,232.48 feet to the East line of Official Records Book 876, Page 569 of the Public Records of Brevard County, Florida; thence N14232'54"W along said East line for 766.98 feet to the North line of said Official Records Book 876, page 569; thence S75227'06"W along said North line for a distance of 768.49 feet to the Easterly right of way line of Interstate 95; thence N26201'27"W along said Easterly right of way line for a distance of 745.31 feet; thence N14232'54"W along said Easterly right of way line for a distance, of 2,308.02 feet; thence N60244'50"E for 346.47 feet; thence N37249'35"E for 170.97 feet; thence N52208'55"E for 84.63 feet; thence N75227'05"E for 550.00 feet; thence N77247'23"E for 75.00 feet; thence S83203'16"E for 75.00 feet; thence S83200'14"E for 410.74 feet; thence N06259'46"E for 104.22 feet to a point on a curve concave to the North, having a radius of 813.27 feet and to which a radial line bears S01209'22"W; thence Easterly along the arc of said curve for 328.78 feet, through a central angle of 23209'46 to the point of tangency; thence N67259'36"E for 243.76 feet to a point lying 30.00 feet West of the Westerly right of way line of Murrell Road, (a 120.00 foot wide right of way), as described in Official Records Book 2953, Page 2101 of the Public Records of Brevard County, Florida; thence Northerly and 30.00 filet West of 25 said Westerly right of way line the following seven (7) courses: (1) thence N22000'24"W for 742.63 feet to the point of curvature of a curve concave to the East and having a radius of 1,235.92 feet; (2) thence Northerly along the. arc of said curve for 582.56 feet, through a central angle of 27200-24 to the point of tangency; (3) thence N05200'00"E for 468.53 feet to the point of curvature of a curve concave to the West, having a radius of 1,055.92 feet; (4) thence Northerly along the arc of said curve for 497.59 feet, through a central angle of 27200'00" to the point of tangency; (5) thence N22200'00"W for 1,399.77 feet to the point of curvature of a curve concave to the East, having a radius of 1,235.92 feet; (6) thence Northerly along the arc of said curve for 593.20 feet, through a central angle of 27230'00 to the point of tangency; (7) thence N05236'00"E along said line lying 30.00 feet West of the Westerly right of way line of Murrell Road and its Northerly extension thereof, said line being the Westerly right of way line of proposed Murrell Road (150.00 foot wide right of way) for a distance of 1,365.19 feet; thence run N84230'00"W for 600.00 feet, to the point of curvature of a curve to the left, having a radius of 640.00 feet and a central angle of 48208'20"; thence run Southwesterly, along said curve, an arc distance of 537.72 feet; thence run N42238'20"W, a distance of 493.95 feet; thence run N14233'28"W, a distance of 580.00 feet; thence S75226'32"W for a distance of 1437.64 feet to said Easterly right of way line of Interstate 95; thence N14232'54"W along said Easterly right of way line of Interstate 95 for a distance of 8,929.18 feet to the point of curvature of a curve concave to the Southwest, having a radius of 5,879.65 feet; thence Northwesterly along the arc of said curve and said Easterly right of way line, for a distance of 2,592.25 feet, through a central angle of 24223'02" to the North line of the Northwest 1/4 of Section 28, Township 25 South, Range 36 East; thence N89234'55"E along said North line 2,011.71 feet to the North 1/4 corner of said Section 28; thence N89235'49"E along the North line of the Northeast 1/4 of said Section 28 for a distance of 2,649.14 feet to the Southwest corner of, said Section 22; thence N89244'33"E along the South line of said Section 22, for a distance of 4,533.48 feet to the West line of lands described in Official Records Book 2237, Page 2896 of the Public Records of Brevard County, Florida; thence N00215'56"W along said West line of Official Records Book 2237, Page 2896 for a distance of 1,969.91 feet to the South right of way line of Barnes Boulevard; thence S89247'58"E along said South right of bay line of Barnes Boulevard for a distance of 800.00 feet to the East line of said Section 22; thence S00215'56"E along said East line of Section 22, for a distance of 1,963.51 feet to the Southeast corner of said Section 22, said corner also being the Northeast corner of Section 27, Township 25 South, Range 36 East, Brevard County, Florida; thence S00221'41"E along the East line of the Northeast 1/4 of said Section 27, for a distance of 2,659.87 feet to the Northeast corner of the Southeast 1/4 of said Section 27; thence 26 S00240'49"W along the East line of the Southeast 1/4 of said Section 27, for a distance of 2,181.04 feet; thence S38250'18"E for 1,283.83 feet; thence South for 1,950.00 feet; thence S40214'11"E for 170.29 feet; thence South for 1,020.00 feet; thence S40236'05"E for 322.68 feet; thence S39242'36"W for 383.47 feet; thence S01247'24"E for 160.08 feet; thence S56218'36"E for 396.61 feet; thence S60238'32"E for 91.79 feet; thence S03216'14"E for 350.57 feet; thence S40227'54"W for 467.47 feet to the South line of aforesaid Section 35, Township 25 South, Range 36 East, Brevard County, Florida; thence S88257'29"W along said South line of Section 35, for a distance of 1,034.11 feet to the Northeast corner of Section 3, Township 26 South, Range 36 East; thence S01017'09"W along the East line of said Section 3, for a distance of 1,245.78 feet to the Northeast corner of INDIAN RIVER COLONY CLUB, P.U.D., PHASE 2, UNIT 1, as recorded in Plat Book 34, Page 92 of the Public Records of Brevard County, Florida; thence S88235'03"W along the North line of said INDIAN RIVER COLONY CLUB, P.U.D., PHASE 2, UNIT 1, and along the North line of INDIAN RIVER COLONY CLUB, P.U.D. PHASE 1, UNIT 2, as recorded in Plat Book 34, Page 36 of the Public Records of Brevard County, Florida, for 2,634.30 feet; thence S88228'04"W along the North line of said INDIAN RIVER COLONY CLUB, P.U.D., PHASE 1, UNIT 2, and along the North lines of INDIAN RIVER COLONY CLUB, P.U.D., PHASE 1, UNIT 1, as recorded in Plat Book 34, Pages 31 and 32 of the Public Records of Brevard County, Florida and INDIAN RIVER COLONY CLUB, P.U.D., PHASE 1, UNIT 3, as recorded in Plat Book 35, Page 91 of the Public Records of Brevard County, Florida, for a distance of 883.63 feet to the Easterly right of way line of Murrell Road, as recorded in Official Records Book 2953, Page 2101 of the Public Records of Brevard County, Florida; thence for the following seven (7) courses along said Easterly right of way line: (1) S05230'00"W for 785.19 feet to the point of curvature of a curve concave to the East, having a radius of 1,085.92 feet; (2) thence Southerly 521.20 feet along the arc of said curve through a central angle of 27230'00" to the point of tangency; (3) thence S22200'00"E for 1,399.77 feet to the point of curvature of a curve concave to the West, having a radius of 1,205.92 feet; (4) thence Southerly 568.28 feet along the arc of said curve, through a central angle of 27200'00" to the point of tangency; (5) thence S05200'00"W for 468.53 feet to the point of curvature of a curve concave to the East, having a radius of 1,085.92 feet; (6) thence Southerly 511.85 feet along the arc of said curve through a central angle of 27200'24" to the point of tangency; (7) thence S22200'24"E for 592.63 feet to the point of curvature of a curve concave to the Northeast, having a radius of 50.00 feet; thence Southeasterly 78.54 feet along the arc of said curve, through a central angle of 90200'00" to the point of tangency; thence N67259'36"E for 423.19 feet to the point of curvature of a curve concave to the South, having a radius of 960.00 feet; thence Easterly 318.71 feet along the arc of said curve, through a central angle of 19201'19 to the point of 27 tangency; thence N87200'55"E for 221.13 feet; thence N02259'05"W for 692.95 feet to the South line of INDIAN RIVER COLONY CLUB, P.U.D., PHASE 2, UNIT 4, as recorded in Plat Book 35, Pages 65 thru 67 of the Public Records of Brevard County, Florida; thence N86030'29"E along said South line of said INDIAN RIVER COLONY CLUB, P.U.D., PHASE 2, UNIT 4, for a distance of 1,620: .78 feet to the Southwest corner of said Section 2; thence N01217'32"E along the West line of said Section 2, for a distance of 2,506.96 feet to the North line of the West 1/2 of the Southwest 1/4 of said Section 2; thence N87227'20"E along said North line of the West 1/2 of the Southwest 1/4 of Section 2, for a distance of 1,347.22 feet to the East line of the West 1/2 of the Southwest 1/4 of said Section 2; thence S00255'23"W along said East line of the West 1/2 of the Southwest 1/4 of Section 2, for a distance of 2,563.88 feet to the Southeast corner of the West 1/2 of the Southwest 1/4 of said Section 2, said Southeast corner also being the Northeast corner of the Northwest 1/4 of the Northwest 1/4 of Section 11, Township 26 South, Range 36 East; thence, S00231'25"E along the East line of said Northwest 1/4 of the Northwest 1/4 of Section 11, for a distance of 1,336.40 feet to the South line of said Northwest 1/4 of the Northwest 1/4 of Section; 11; thence N89231'57"W along said South line 1,350.78 feet to the Southwest corner of said Northwest 1/4 of the Northwest 1/4 of Section 11, said corner being on the East line of said Section 10; thence S00258'45"E along said East line of Section 10, for a distance of 1,322.94 feet to the East 1/4 corner of said Section 10; thence continue along said East line S002058'45"E for 541.60 feet to the North line of lands described in Official Records Book 2812, Page 2063 of the Public Records of Brevard County, Florida; thence for the following eight (8) courses along the Northerly line of said lands described in Official Records Book 2812, Page 2063: (1) S87255'44"W for 650.12 feet; (2) thence S00258'45"E for 288.82 feet; (3) thence S59001'15"W for 245.81 feet; (4) thence N88024'23"W for 501.94 feet; (5) thence S59001'15"W for 503.09 feet; (6) thence S00258'45"E for 575.00 feet; (7) thence S44201'15"W for 159.04 feet; (8) thence S87255'44"W for 359.20 feet to the East right of way line of said Murrell Road; thence S12228'28"E along said East right of way line 152.51 feet to the South line of said lands described in Official Records Book 2812, Page 2063; thence N87255'44"E along said South line for 2,241.61 feet to the East line of said Section 10; thence S00258'45"E along said East line 600.08 feet to the POINT OF BEGINNING, said lands containing 2,790.73 acres, more or less. TOGETHER WITH THE FOLLOWING DESCRIBED PARCEL 2 A parcel of land lying in Section 33, Township 25 South, Range 36 East, Brevard County, Florida, more particularly described as follows: Commence at the Northwest corner of Section 28, Township 25 South, Range 36 East, Brevard County, Florida; thence N89234'55"E along the North line of said Section 28, a distance of 236.62 feet to the Westerly right of way line of Interstate 95, (a 300.00 foot wide right of way), and a point of intersection with a non-tangent curve, concave Southwesterly, having a radius of 5,579.65 feet and a central angle of 26252'46"; thence Southeasterly along said Westerly right of way line and along the arc of said curve to the right, a distance of 2,617.62 feet, (said arc subtended by a chord which bears S27259'17"E a distance of 2,593.68 feet) to a point of tangency; thence S14232'54"E along said Westerly right of way line, a distance of 3,416.81 feet to the POINT OF BEGINNING of the herein described parcel; thence continue along said Westerly right of way line S142032'54"E, a distance of 4,994.84 feet; thence N15241'39"W a distance of 1,203.33 feet to the point of curvature of a curve to the left, having a radius of 1,051.92 feet, a central angle of 35221'15"; thence North Westerly along the arc of said curve, an arc length of 649.08 feet to the point of tangency of said curve; thence N51202'54"W, a ,distance' of 978.47 feet to the point of curvature of a curve to the left, having a radius of 1,051.92 feet, a central angle of 33200'00"; thence Westerly along the arc of said curve, an arc length of 605.86 feet to the point of tangency of said curve; thence N84202'54"W a distance of 136.38 feet; thence N88202'54"W a distance of 76.74 feet; thence N01257'06"E a distance of 247.75 feet; thence S88202'54"E a distance of 600.00 feet; thence N43230'28"E a distance of 193.49 feet; thence N21215'19"E, a distance of 750.65 feet to the point of curvature of a curve to the left, having a radius of 1,051.92 feet, a central angle of 31248'13"; thence Northerly along the arc of said curve, an arc length of 583.89 feet to the Point of Tangency of said curve; thence N102032'54"W, a distance of 652.65 feet to the POINT OF BEGINNING, parcel contains 35.03 acres, more or less. 42 - Supervisors. The following five persons are designated as the initial members of the Board of Supervisors: Jack Maloy, Don Spotts, David Duda, Tracy Duda and Gordon P. Masterson. COPIES FURNISHED: Douglas M. Cook, Director Florida Land and Water Adjudicatory Commission Office of the Governor Office of Planning and Budgeting 419 Carlton Building Tallahassee, FL 32399-0001 Wade L. Hopping, Esquire Cheryl G. Stuart, Esquire Hopping, Boyd, Green & Sams P.O. Box 6526 Tallahassee, FL 32314
