The Issue At issue in this case is whether the Florida Land and Water Adjudicatory Commission (FLWAC) should grant the Petition to Amend the Boundaries of the Tomoka Community Development District filed on November 23, 2005 (Petition). The purpose of the Petition is to add 1,122 acres that were intended to be included in the Community Development District (CDD, or District) when it was created in October 2003 but were omitted through the inadvertent use of an erroneous legal description.
The Issue The issue before the Florida Land and Water Adjudicatory Commission (FLWAC) in this proceeding is whether the Petition to Establish the Myakka Ranch Community Development District (Petition) meets the criteria set forth in Chapter 190, Florida Statutes, and Chapter 42-1, Florida Administrative Code. The local public hearing was for the purpose of gathering information in anticipation of quasi-legislative rulemaking by FLWAC.
The Issue The issue before the Florida Land and Water Adjudicatory Commission (FLWAC) is whether to grant the Petition to Establish the Madeira Community Development District (Petition). The local public hearing was for the purpose of gathering information in anticipation of quasi-legislative rulemaking by FLWAC.
The Issue Whether Sugarloaf Shores Section C Extension is a "major development" as defined by Section 6-222, Monroe County Code, and (in connection with Intervenor's amended plat proposal and dredge and fill application) should undergo major development review pursuant to Chapter 6, Article VII, Monroe County Code.
Findings Of Fact Sugarloaf Shores Section C Extension is a subdivision located in Section 2, Township 67 South, Range 27 East, Sugarloaf Key, Monroe County, Florida. (Prehearing Stipulation, Para. (e), No. 1). The plat of Sugarloaf Shores Section C Extension, shows 76 residential building lots and five deadend canals (connecting to Upper Sugarloaf Sound or Cross Key Channel) and a canal of approximately 900 feet paralleling the mean high water line of Upper Sugarloaf Sound; it was approved by Monroe County on July 5, 1972, and is recorded in Monroe County Plat Book 6, page 93. The subdivision contains 38.9 plus acres. (Prehearing Stipulation, Para. (e), No. 2; Joint Exhibit No. 1). Lloyd A. Good, Jr., purchased Sugarloaf Shores Section C Extension on October 8, 1973, and is the current owner and developer of the subdivision. (Prehearing Stipulation Para. (e), No. 3). At the time of his purchase, the land had been cleared. An east-west canal of approximately 600' in length and 50' in width had been excavated but unopened to Upper Sugarloaf Sound. A north-south canal or borrow pit of approximately 200' in length and 50' in width had also been excavated. Fill obtained from these excavations had been placed on the property. He subsequently placed approximately 800 yards of additional fill on the Southeast corner of the property. (Testimony of Good) The platted subdivision is landward of the mean high water line and contains a mixture of upland and wetland vegetation. A berm rises along the front of the property between Allamanda Drive and the existing (plugged) canal. The northern part of the property contains white, black, and red mangroves, red grape, a hardwood hammock, and a salt water marsh characterized by key grass, salicornia, and white and black mangroves. The western part of the property contains fresh water wetlands characterized by spike rush. The area south of the existing canal contains more mangroves and is permeated by transitional wetland or fresh water wetland plant species, with the higher elevations containing Lower Keys hardwood hammock species such as poison wood, black tooth and Jamaican dogwood. The salt marsh and black mangroves are subject to inundation from tidal exchange; the fresh water wetlands are subject to rain water flooding. (Testimony of Dennis) In 1973, Lloyd Good was familiar with regulatory restrictions on the use of wetland areas. As a Philadelphia attorney, he had "practiced in wetland areas in New Jersey . . . and . . . knew that the concept of deadend canals at that time was not feasible." (TR.65) He had decided to amend the original plat (and change the development plan) even before he purchased Sugarloaf Shores Section C Extension because he believed that under existing environmental laws the platted deadend canals would not be permitted. (TR.65) So he hired engineers to design a development plan acceptable to the U.S. Army Corps of Engineers and other governmental agencies having regulatory jurisdiction over dredge and fill activities in wetland areas. Because of other business interests, he temporarily halted work on the project between late 1973 and 1975. From 1975 to 1980, he worked with permitting officials from federal, state, and local regulatory agencies in an effort to devise a development plan for Section C Extension which would meet regulatory standards. In 1980, he hired a consultant to obtain the necessary federal, state, and local permits needed to carry out his revised development plan. Monroe County permitting officials told him not to apply for any local dredge and fill, or land clearing permits until he first obtained the required federal and state permits. (Testimony of Good) In 1980, Lloyd Good applied for a joint U.S. Army Corps of Engineers/Florida Department of Environmental Regulation permit to perform the dredging and filling necessary to carry out his revised development plan. In 1983, after extensive negotiation, both agencies issued him the required dredge and fill permits. The Department of Environmental Regulation permit was conditioned on Mr. Good obtaining Monroe County approval of an amended plat of Sugarloaf Shores Section C Extension conforming to the federal and state permits. (Joint Exhibit No. 21, Testimony of Good) During his initial discussions with Monroe County officials in 1981, Lloyd Good proposed rezoning the property to permit multiple-family residences; if rezoned, he expected that the project would be required to undergo "major development" review as defined by the Monroe County Code. But after meeting with members of the Sugarloaf Property Owners Association and discovering that they were violently opposed to multi-family development," (TR.73) he decided to retain the single-family nature of the original development and not seek a zoning change. Monroe County officials told him that by retaining the original zoning his development activities would not be subject to the "major development" review process. (Testimony of Good) On May 10, 1983, Lloyd Good submitted an application to Monroe County for authorization to dredge 42,400 plus/minus cubic yards of submerged lands, wetlands and uplands for roads and fill needed to develop residential lots within the Sugarloaf Shores Subdivision in accordance with his newly revised development plan. His application conformed to the federal and state permits already issued. (Prehearing Stipulation Para. (e) No. 4; Joint Exhibits No. 2 and 6) Mark Robinson, the county biologist assigned to review the dredge and fill application and prepare a biological report, asked Lloyd Good to have the state and federal permits amended to address several of his concerns. Mr. Good obtained the requested permit amendments, then asked that the biological report be completed. (Testimony of Good) On August 25, 1983, Dr. Jeffrey M. Doyle, Director of the Monroe County Planning and Zoning Department, issued an administrative ruling declaring Sugarloaf Shores Section C Extension to be a "major development" under the Monroe County Code. As grounds, he cited Section 6-222(1), which defines a "major development" project as a subdivision containing five acres or more of land or water, and Section 6-222(7)(b), which grants discretionary authority to zoning officials and the County Commission to designate an activity or use as a "major development" project if it "reflects sufficient scope, scale and size to justify its being designated . . . in order to ensure its reasonable implementation, if approved, and its proper review prior to such approval." Under his administrative ruling, the dredge and fill application would be subject to the comprehensive review procedures which apply to "major developments." (Joint Exhibit Nos. 32, 5) On September 21, 1983, Lloyd Good appealed Dr. Doyle's administrative ruling to the Monroe County Board of Adjustment. The issue before the Board of Adjustment (and subsequently before the County Commission) was whether Mr. Good's proposed dredge and fill activity (for the purpose of constructing the revised subdivision) was a "major development" as defined by the Monroe County Code, and whether compliance with "major development" review procedures was required before county dredge and fill permits could be issued. (Prehearing Stipulation, Para. (e) No. 6; Joint Exhibit No. 8). On November 2, 1983, the Monroe County Board of Adjustment upheld Dr. Doyle's decision and determined that the Section C Extension subdivision (to be created by the dredging and filling) was a "major development" under Chapter 6- 222(7)(b), Monroe County Code. (Prehearing Stipulation, Para. (e) No. 7; Joint Exhibits No. 11 and 12). On November 23, 1983, Lloyd Good appealed the Board of Adjustment's decision to the County Commission. (Prehearing Stipulation, Para. (e) No. 8; Joint Exhibit No. 13). On January 27, 1984, the County Commission, sitting as the Board of Appeals, adopted Resolution No. 042-1984, reversing the Board of Adjustment's decision of November 2, 1983. The resolution (giving no specific reasons for the reversal) remanded the matter to the County Planning and Building Department for normal processing of the related dredge and fill permits. It did not grant or deny any development or dredge and fill permit; it simply ordered that Lloyd Good's dredge and fill application would be reviewed under normal permitting procedures, not the more comprehensive procedures applicable to "major development" projects. (Prehearing Stipulation, Para. (e), No. 9; Joint Exhibit No. 14) The DCA did not appeal this resolution to a circuit court (within 30 days of its adoption) or to the FLAWAC (within 45 days of its transmission). The DCA did not challenge or question the County Commission's decision (that the proposed dredge and fill activities would not undergo "major development review") until it appealed the Commission's subsequent resolution granting the dredge and fill permit. (Testimony of Good, Dennis) On June 4, 1984, Lloyd Good submitted to the Monroe County Building Department 13 copies of a proposed amended plat for the Sugarloaf Shores Section C Extension. The amended plat incorporated his new development plan and reflected the dredging and filling approved by state and federal permits. (Prehearing Stipulation, Para. (e), No. 10; Joint Exhibit Nos. 18 and 21). On July 13, 1984, the County Commission adopted Resolution No. 195- 1984 approving Lloyd Good's application to dredge and fill. The resolution was transmitted to the DCA on July 27, 1984, which appealed it to the FLAWAC by notice filed September 10, 1984. 1/ The appealed resolution directs that the applied-for permit be issued subject to Lloyd Good's subsequent filing of an amendment to the Sugarloaf Shores Section C Extension plat. (Prehearing Stipulation, Para. (e), Joint Exhibit No. 19) Thereafter, on September 7, 1984, the County Commission adopted Resolution No. 224-1984, approving an "Amended Plat for Sugarloaf Shores Section C Extension." The DCA also appealed this resolution to FLAWAC by separate notice filed October 31, 1984. (Prehearing Stipulation, Para. (e), No. 12; Joint Exhibit Nos. 21, 22) The amended plat approved by Resolution No. 224-1984, replaces the original plat with a fundamentally new and different development plan. It alters the location of roads; eliminates the proposed deadend canals (except for the existing "plugged" canal); provides for wetland preservation areas in Tracts A, B, C, D, and F, and for the construction of a six-acre boat basin fronting the property on Upper Sugarloaf Sound; and reduces the number of single family residential lots from 76 to 55. RU-1 zoning is retained. The new development plan is preferable to the original plan in terms of environmental impact. The amended plat was processed in the same manner as all new plats in Monroe County. (Joint Exhibits No. 1, 21; Testimony of Dennis) The record is devoid of any documented expenditures made by Lloyd Good in reliance on County Commission approval of the original or amended plat.
Recommendation Based on the foregoing it is RECOMMENDED that pursuant to Section 380.07(4), Florida Statutes (1983), the Florida Land and Water Adjudicatory Commission enter an order: Reversing Resolution Nos. 195-1984 and 224-1984, because these resolutions approved development activities prior to their undergoing the "major development" review required by Section 6-222(1) and (6), Monroe County Code, as incorporated by Rules 27F-9.06 and 27F-9.17, Florida Administrative Code; Declaring the proposed Sugarloaf Shores Section C Extension a "major development" within the meaning of Section 6-222(1) and (6), Monroe County Code, and requiring the two development activities which would create it to undergo "major development" review prior to any approval; and Declaring that after undergoing the required "major development" review, these development activities would be eligible for approval, but that the disposition of the appeals in the instant cases does not reach the substantive issue of whether the proposed development should ultimately be approved, or disapproved. See, Section 380.08(3), Florida Statutes (1983). DONE and ORDERED this 21st day of January, 1986, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of January, 1986.
The Issue The issues are whether the following decisions of the Director of Development Services of Citrus County on May 9, July 21, and July 25, 2000, are correct: (1) that the Brown School of Florida, Inc.'s proposed use of certain property in Citrus County, Florida, did not constitute a change in use as described in Sections 2021 through 2023 of the Citrus County Land Development Code and is consistent with Rezoning Ordinance No. 86-A38; and (2) that the proposed construction of a fence on the property complied with the Citrus County Land Development Code.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: The property which is the subject of this dispute is located at 2804 West Marc Knighton Court, one mile north of the intersection of County Roads 486 and 491, and just south of the community of Beverly Hills in Citrus County, Florida. Appellee, the Brown Schools of Florida, Inc. (the Brown Schools), has entered into a contract to lease the land from its owner for the purpose of operating a State-licensed "residential child-caring facility." Appellants, Black Diamond Homeowner's Association, Inc., Black Diamond Properties, Inc., Jerry and Ann Kerl, and Marvin Query, have objected to the proposed use on numerous grounds. As residents or owners of property adjacent to the subject property, Appellants have standing to bring these appeals. The property was originally zoned agriculture. In 1986, Community Care Systems, Inc. (Community Care), which then had a contract to purchase the property from a principal of Black Diamond Properties, Inc., applied to Appellee, Citrus County (County), to rezone 30.9 acres from "A-1 General Agriculture" to a "Planned Development-Commercial" land use classification. The stated purpose of the application was to permit the construction and operation of a private psychiatric hospital for alcohol and drug rehabilitation. The application reflected that the owner's sole intended use of the property was as a 60,000 square feet psychiatric hospital licensed under Chapter 381, Florida Statutes, which would "provide comprehensive psychiatric treatment for people of all ages." Under the 1986 version of the County's Land Development Code (Code), private hospitals were only authorized in the commercial land use districts. There was no separate "Institutional" land use district. Thus, the Code dictated that the original facility could only be used as a private psychiatric hospital in a commercial zone. Since an application for straight commercial rezoning on the property would have been inconsistent with the County's then existing land use plan, the only way in which the property could be used for a private psychiatric facility was if the property was classified and zoned as "Planned Development-Commercial." Although the Code was amended in 1990 to include new land use districts, including a "Public/Semi-Public/Institutional" district, hospitals are permitted only in a "General Commercial distict, while "Institutional" uses that are not hospitals are not allowed in a "General Commercial" District. In any event, the 1986 ordinance and final development plan were not amended by the changes to the Code in 1990. The Brown Schools points out that at the time the rezoning application was filed, the 1986 Code contained a Commercial, Residential, Institutional and Office (CRIO) land use district which allowed, among other things, the construction of "public or private hospitals," if they met certain conditions, and "[a]dult congregate living facilities and other group homes, supervised living facilities meeting all county and State requirements." However, in its rezoning application, Community Care did not seek an institutional use nor request a CRIO use. Thus, the cited provision has no application here, and there is no indication in the record that it was even considered by the County in making the decisions under appeal. When the rezoning application was filed, Community Care held Certificate of Need No. 2870 issued in 1984, which authorized construction of a facility with 51 short-term psychiatric beds and 37 long-term substance abuse beds for the treatment of adults, including geriatric patients. The minutes of the Citrus County Board of County Commissioners (Board) meeting held on August 26, 1986, at which the zoning modification was approved, reflect that concerns were raised by abutting citizens of Beverly Hills, who belonged to a group known as United Residents of Beverly Hills (URBH), relative to the facility's future uses. To achieve the necessary zoning approvals, Community Care expressly reassured URBH members by letter dated July 7, 1986, that it would not accept court commitments, "criminally insane," or special problem cases such as "fire setters"; that admissions would be voluntary or by short term civil commitment papers; that patient referral would be by direct request of the patient (self-referral), by physician or other local health professional, by transfer from local general hospitals, and by law enforcement if no charges are pending against the patient; that the property would not be used to house onsite felons or violent patients; and that the building would be low profile and without bars, windows, fences, or gates. Thus, it is clear from Community Care's own acknowledgement that the facility was never intended to be used to accept law enforcement referrals, court commitments, or other non-voluntary commmitments, much less the violent or criminally insane individuals. Having received the above representations from the applicant, the Board incorporated both a URBH letter and the Brown Schools' letter of July 6 as a part of Ordinance No. 86- A38, which approved the zoning change application (Z-86-29) subject to certain conditions. That Ordinance expressly limited and conditioned the uses allowed on the property to the uses approved in the Ordinance. The operative section at issue regarding this appeal is Condition 2, which required that: 2. Approval be limited to a 60,000 square foot (88 bed) psychiatric care facility in accordance with state guidelines. Thereafter, a facility was constructed and Community Care operated a psychiatric care hospital on the property under various names until sometime in 1997, when Community Care (then operating the facility under the name of Heritage Hills Hospital of Beverly Hills) voluntarily ceased to provide services and vacated the premises. By operation of law, the Certificate of Need automatically expired when it was returned to the Agency for Health Care Administration (AHCA) on June 12, 1998. The property was sold in 1999 to BCK of Ocala, LLC. That owner then entered into a lease of the property with the Brown Schools on an undisclosed date in 1999 or early 2000. On March 23, 2000, the Brown Schools filed a "Pre- Application Review" with the County's Community Development Division and met with County staffers in an effort to gain approval for their facility. A preapplication is filed "before submittal of an application for development order," and once one is filed, under Section 2210 of the Code a preapplication conference is then held with County staffers to acquaint the applicant with substantive and procedural requirements of this LDC, provide for an exchange of information regarding the applicable elements of the Comprehensive Plan, the LDC, and other development requirements, arrange such technical and design assistance assistance as will aid the applicant in interpretation of requirements, and to otherwise identify policies and regulations that create opportunities or pose significant constraints for the proposed development. The same section provides that the purpose of the conference is "not to grant any preliminary approval except to agree that the proposed use of the property is appropriate according to the Comprehensive Plan and to determine whether it is reasonable to expect that the proposed development can be accommodated on the site in full compliance with requirements of this LDC." The preapplication reflected that the project name was "The Brown School Locked Adolescent Facility." Also, a handwritten notation by a County staffer at the bottom of the preapplication indicates that "no change of use/no construction [is] contemplated," and that the applicant "must meet conditions of Z-86-29 - copy given to applicant." An Email prepared by a County staffer on March 14, 2000, or shortly before the preapplication was filed, reflected that the intended use of the property was a "[l]ocked facility for children and adolescents." On May 5, 2000, the Brown Schools notified the County by letter that "[w]e are aware of the original conditions in which the facility was permitted and we will not be changing its use." In response to that representation, by letter dated May 9, 2000, the County's Director of the Department of Development Services (Director), who reviews both preapplications and development order applications, advised in part as follows: Pursuant to the preapplication meeting of March 23, 2000, and your correspondence of May 5, 2000, please accept this letter as confirmation that the proposed change does not constitute a Change of Use as described in Sections 2021 through 2023. As noted in your letter, the Brown Schools of Florida are bound by the original planned development approved conditions. Should at a future date you desire to modify the structure, grounds, operation, or any of the conditions, a new review by Citrus County will be needed and may warrant a public hearing as provided in Section 2224 of the LDC. In reaching those conclusions, it is assumed the Director considered Section 2021 of the Code, which defines a "change in use" as "any change of the purpose or activity for which a piece of land or its buildings is designed, arranged, or intended, or for which it is occupied or maintained." The letter also specifically refers to the Brown Schools' plan to operate the property as a "psychotherapeutic hospital for children," and it asked that the applicant provide a copy of its "Florida DC&F permit/authorization . . . for inclusion in [the County's] file as confirmation that [the] operation is approved by the State as well." At that point in time, however, no documentation had been submitted in the process concerning the Brown Schools' operations and programs to support the decision made by the County, although such information had been submitted to the Department of Children and Family Services (DCF), the state agency which licenses adolescent facilities. In information submitted to DCF to obtain a license, the Brown Schools expressly stated that they would be accepting sexual offenders, in addition to juveniles charged with felonies. In fact, one of the criteria under the client profile for those admitted to the Brown Schools' sexual offenders program is that the individual "[m]ay have completed more intensive levels of acute care, hospitalizations, had multiple failed residential placements or may have failed at outpatient services." The documents submitted to DCF also reflect that the Brown Schools is not operating a "psychiatric hospital," as originally represented to the County, but rather it is operating something more akin to a juvenile detention center. Indeed, one of its stated missions is to "[e]nhance the public safety by providing protection for the community from juveniles charged with felonies." A part of the facility will be dedicated to providing services under a contract with the State of Florida for competency restoration. Such a prerequisite is necessary for admission to the Brown Schools' competency restoration program. Under this program, clients or their parents do not decide when they can leave, and the clients are only discharged when they are determined to be competent to stand trial, or when it is determined that they will never gain such competency. This lack of freedom illustrates that the intended use of the facility is as a detention facility, and not as a private psychiatric hospital. Obviously, the Brown Schools is not licensed, nor does it meet the statutory requirements for operation, as a psychiatric hospital. On June 5 and 6, 2000, Appellants in Case Nos. 01-1119 and 01-1120 filed separate, but similar, appeals of the May 9 letter under Section 2500 of the County Land Development Code (Code) and asked for "an interpretation of the intended, described Brown School use." On June 9, 2000, the Director requested an opinion from the County Attorney on whether his May 9 letter constituted action which triggered the provisions of Section 2500. In a memorandum dated July 17, 2000, the County Attorney concluded that it did not for the following reasons: It is my opinion that since no application has been filed nor development order issued or a request for determination made that your letter of May 9th is non-appealable by the terms of the Land Development Code. Section 2210 entitled Preapplication is merely a conference held before submittal of an application for a development order. * * * It is not an action taken by the Director which could lead to an appeal pursuant to Section 2500. Based on this advice, the Director took the position that he had not made a final determination on the Brown Schools' compliance with the zoning conditions and therefore refused to accept the appeals. Thus he did not forward the two appeals of the May 9 letter to a local hearing officer to begin the appeals process. By letter dated June 7, 2000, and in direct response to the concerns raised by Appellants, the Director provided the Brown Schools with a copy of the Appellants' appeals and requested that Appellee provide him with a copy of the DCF license, contracts, and any other supporting documents. Also, for the first time, the Director specifically requested documentation on the planned operation and programs at the facility since Appellants had questioned whether "the facility will be in compliance with the original zone change compliance conditions." In response to the Director's letter, on June 9, 2000, the Brown Schools provided the Director with a copy of its DCF license, contract with the State of Florida, and revised program information. The program information was revised (from that described in the application) after the appeals were taken to reflect a change in program titles and other terminology from that originally used. For example, the "Sexual Offender Program" was changed to "Sexual Abuse Treatment (SAT) Program," but the substance of the program remains the same. In order to receive a license to operate its institution from the DCF, the Brown Schools was required to demonstrate that it had received final zoning approval. Even though the Director represented in his June 7, 2000, letter that final zoning approval had not been made, the Brown Schools represented to the DCF that it had received final zoning approval by submitting the May 9 letter. In reliance on that letter, on May 30, 2000, the DCF issued the Brown Schools a license to operate a residential child-caring facility. The license was issued under Section 409.175, Florida Statutes (1999), which specifically provided that "child-caring facilities do not include hospitals." Beginning on July 1, 2000, the Brown Schools began placing juvenile offenders at their facility, and these residents have remained there during the pendency of these appeals. On July 21, 2000, the Director issued a 3-page letter which constituted his final determination on the matter. That letter is found in three exhibits, including Exhibit 18. The Director concluded that the Brown Schools' proposed use of the property was consistent with the applicable zoning conditions. In his letter, the Director focused on Condition 2 of the zoning ordinance, and whether the intended use was in conformity with the requirement that the property be used only for a "60,000 square foot (88-bed) psychiatric care facility in accordance with State guidelines." Of relevance here were the following conclusions: [Condition 2] specifically utilizes the term "facility" and not hospital, and the term "State guidelines" rather than specific Florida statutes, administrative codes, or state programs. This is a significant distinction and a core basis of this determination. The County cannot administratively expand, contract, or modify the language or intent of the condition when it uses plain and obvious terms. (Rinker Mat. Corp. vs. City of N. Miami). The Board's limitations to the zone change were those spelled out in the adopted conditions - not those discussed either within or outside the public hearing process by the applicant at that time. The second core issue is whether the proposed Brown operation can be considered a psychiatric care facility. The original developer, Community Care Systems, Inc., provided comprehensive psychiatric treatment for people of all ages with acute emotional, behavioral, and chemical dependency problems. The facility operated as a hospital and so was governed by the then Florida Department of Health and Rehabilitative Services as a hospital, subject to the provisions of the Health Facility and Services Development Act. These regulations served as the state guidelines referenced in Condition 2. The Brown Schools of Florida proposed operation for the Marc Knighton Court facility is a residential child caring facility as licensed by the Florida Department of Children and Families. Florida Statute (Chapter 409) provides the definition of a residential child caring agency (facility implied within the definition) that is broad in scope recognizing a number of types, including maternity homes, group homes, emergency shelters, and wilderness camps. Therefore, unlike the DHRS license obtained by Community Care Systems, Inc., which clearly established compliance with Condition #2, obtaining of the DCF license does not in and of itself serve the same role. To ascertain compliance with the psychiatric care definer of Condition #2, I must look to the Brown Schools' proposed program and the draft contract with the DCF. The program summary from the Brown Schools of Florida lists four program types: Sexual Abuse Treatment Program, Child and Adolescent Residential Treatment [P]rogram (male and female], and Residential Treatment Program for Developmentally Delayed Youth. They all share the use of an inter- disciplinary treatment team centered around the psychiatric evaluation, treatment and community integration of the client(s). This is similar in scope to some of the original hospital's programs, though in the Brown Schools case it is oriented to children referred/placed by the State as opposed to private placement. The draft contract, specifically Attachment 1, Section A, 2d, reaffirms these programs and the desired goals. While there is a difference from the original Community Care Systems operation, the fact remains that the supporting documentation provided by the Brown Schools of Florida clearly establishes that psychiatric care is a principle (sic) component of their operation and, as such, must be taken as face value compliance with Condition #2 of the Zone Change. Much has been made of the fact that the Brown School operation will treat youth who have been found incompetent to proceed. This is an issue outside the purview of land use and, in fact, the attorney representing the original applicant in 1986 made the same observation that these types of issues were not land use related. The determination of incompetency lies solely within the State of Florida through its judicial officers or their designees. It is neither feasible nor appropriate for local government through its police powers to try to regulate these matters. Secondly, much has been made of the potential for the Brown Schools program to evolve into a juvenile detention facility, whole or in part due to the generality of the DCF license. Whether this can occur is open to debate, but Florida case law on this matter is clear. Conetta vs. City of Sarasota has established that one cannot presume violations of the Code for the purpose of denial. Rather, the appropriate approach on this issue is to take corrective enforcement action after a documented violation occurs. Timely appeals of this letter were filed by Appellants. By letter dated July 21, 2000, the Brown Schools requested a "minor modification to [the] Land Development Code" for the installation of a 10-foot high chain link fence with two-foot overhead fencing at a 45-degree angle. Although suggested otherwise by Appellants, the fence was not a perimeter fence around the entire facility, but only a fence to enclose a play yard, since a perimeter fence between at least part of the facility and the adjacent property had already been constructed by one of the Appellants. On July 25, 2000, a County staffer responded to this request by holding that the fence "shall be considered a minor modification of the approved Plan Development No. Z-86-29 in accordance with the provisions of Section 2224.B of the Citrus County Land Development Code." The cited Section of the Code allows the Director to approve "minor changes in the . . . previously approved Planned Developments (PD) as long as they are in harmony with the originally approved . . . PD." After a site plan was submitted, the County issued a permit for the fence. This decision has also been appealed by Appellants on the grounds that the original site plan contained no fences, and the Board approved the zoning change in 1986 only after the applicant represented that no fences would be erected. The construction of the fence has been stayed during the pendency of these appeals.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Director of Development Services reconsider his decisions of May 9, July 21, and July 25, 2000, for the reasons expressed in this Recommended Order. DONE AND ENTERED this 15th day of August, 2001, in Tallahassee, Leon County, Florida. ___________________________________ DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (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 15th day of August, 2001. COPIES FURNISHED: Gary W. Maidhof, Director Department of Development Services Citrus County 3600 West Sovereign Path Lecanto, Florida 34461-8070 Julie Hions O'Kane, Esquire Drage, deBeaubien, Knight, Simmons, Mantzaris & Neal, P.A. Post Office Box 87 Orlando, Florida 32802-0087 Clark A. Stillwell, Esquire Brannen, Stillwell & Perrin, P.A. Post Office Box 250 Inverness, Florida 34451-0250 James A. Neal, Jr., Esquire James A. Neal, Jr., P.A. 452 Pleasant Grove Road Inverness, Florida 34452-5746 David C. Ashburn, Esquire Greenberg Traurig, P.A. 101 East College Avenue Tallahassee, Florida 32301-7703 Carl E. Kern, Esquire 3600 West Sovereign Path, Suite 267 Lecanto, Florida 34461-7726
The Issue The issue in this proceeding was whether the Petition to Establish the Harmony Ranch Community Development District (Petition) meets the applicable criteria in chapter 190, Florida Statutes, and Florida Administrative Code Chapter 42-1.
The Issue The issue is whether the Petition to Amend the Boundaries of the Crossings at Fleming Island Community Development District (Petition) meets the applicable criteria set forth in Chapter 190, Florida Statutes (2007)1, and Florida Administrative Code Rule 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).
Findings Of Fact On August 20, 1975, the Appellant, MGIC - Janis Properties, Inc., developer, filed an Application for Development Approval for Development of Regional Impact (hereinafter referred to as the "Application") with the Withlacoochee Regional Planning Council and the North Central Florida Regional Planning Council. A copy of that application as amended was attached as Exhibit "B" to the Appellants' petition and is made a part of the record herein. The Exhibit "B" has two parts, the initial part consisting of the Development of Regional Impact, Planning Concepts and Zoning Requests and the latter part consisting of addendum one. The submission of the application to the two Regional Planning Councils was necessitated by the fact that the property covered by the application lies in both Alachua and Marion Counties, which counties are within the jurisdictional areas of the North Central Regional Planning Council and the Withlacoochee Regional Planning Council, respectively. Following the preliminary review by the Withlacoochee Planning Council, the Council, by letter of September 25, 1975, notified Marion County, by and through Mr. John Hastings, Zoning Director, Marion County Zoning and Building Department, that the Planning Council was ready to proceed with the formal review of the application and further advising that public hearing dates should be scheduled to comply with the requirements of the Florida Environmental Land and Water Management Act of 1972 (Chapter 380, Florida Statutes). A copy of that letter was attached as Exhibit "C" to Appellants' petition and is made a part of the record herein. On October 7, 1975, the Board of County Commissioners of Alachua County (hereinafter referred to as "Alachua County") scheduled a public hearing on the application before the County Commission to be held at 4:30 P.M. on December 9, 1975, in the Alachua County Courthouse, Gainesville, Florida. The Appellants were given notice of the public hearing by a copy of the letter of October 8, 1975, from Howard Weston, County Administrator to Alachua County, a copy of that letter appearing as Exhibit "D" to the Appellants' petition and made a part of the record herein. On October 14, 1975, the Appellee scheduled public hearings on the application before the Marion County Planning and Zoning Commission held at 4:00 P.M. on January 5, 1976, at the Marion County Courthouse, Ocala, Florida, and before the Board of County Commissioners at 9:00 A.M. on January 21, 1976, at the Marion County Courthouse, Ocala, Florida. Notification to the Appellants of these public hearings was given by letter of October 15, 1975 from Ronald H. Miller, Marion County Planner, a copy of that letter being Exhibit "E" to the Appellants' petition and made a part of the record herein. On November 6, 1975, the North Central Florida Regional Planning Council prepared, adopted and sent to Alachua County their recommendations regarding the application, which recommendations recommended approval of the Appellants' proposed project subject to certain conditions. A copy of those recommendations was attached as Exhibit "F" to the Appellants' petition and is made a part of the record herein. On November 13, 1975, the Withlacoochee Regional Planning Council, meeting in full session, prepared, adopted and sent to Marion County, their recommendations regarding the application, which recommendation recommended approval of the Appellants' proposed project subject to certain conditions. A copy of those recommendations was attached as Exhibit "G" to the Appellants' petition and is made a part of the record herein. On December 9, 1975 Alachua County held a public hearing on the Appellants' application and that public hearing was continued on January 6, 1976. On December 24, 1975 the Marion County Planning Department prepared and sent to Marion County their considerations and recommendations regarding the application, which recommendations recommended approval of the Appellants' proposed project subject to certain conditions. The recommendations of the Marion County Planning Department were based in part on comments provided by the Marion County Engineer and the Environmental Health Division of the Marion County Health Department. A copy of these considerations and recommendations was attached as Exhibit "H" to the Appellants' petition and is made apart of the record herein. On January 5, 1976, the Marion County Planning and Zoning Commission held a public Hearing on the Appellants' application, which public hearing was continued on January 12, 1976. At the conclusion of the public hearing, after having heard and considered all interested parties and pertinent facts and matters with regard to the Appellants' application and after having considered the recommendations of the Marion County Planning Department, the Withlacoochee Regional Planning Council and all testimony and information presented at the public hearing, the Marion County Planning and Zoning Commission recommended approval of Appellants' application subject to the conditions previously recommended by the Withlacoochee Planning Council and the Marion County Planning Department, and subject to certain other conditions. Copies of the minutes of the special meeting of the Marion County Planning and Zoning Commission meeting of January 5, 1976 and January 12, 1976 were attached as Exhibit "I" and Exhibit "J" respectively to the Appellants' petition and are made a part of the record herein. On January 6, 1976, Mr. Al Lewis, Director of the Department of Planning, Alachua County, prepared and sent to Alachua County, by and through Mr. Howard Weston, County Administrator, his recommendation regarding the application, which recommendation recommended approval of the Appellants' proposed project subject to certain conditions. A copy of those recommendations was attached as Exhibit "K" to the Appellants' petition and is made a part of the record herein. On that same date, Alachua County, after having heard and considered all interested parties and pertinent facts and matters with regard to Appellants' application, and after having considered the recommendations of the Alachua County Department of Planning, the North Central Florida Regional Planning Council and all testimony and information presented at the public hearing, issued a development order approving Appellants' application subject to certain conditions. A copy of said development order was attached as Exhibit "L" to the Appellants' petition and is made a part of the record herein. On January 21, 1976, the Appellee, Marion County, held a public hearing on the Appellants' application, which public hearing was continued on February 10, 1976 and February 18, 1976 and the record of those hearings have been transcribed and made a part of the record herein. After the January 21, 1976 meeting before the Marion County Board of County Commissioners in which discussion was entered into on the recommendations arising from the Withlacoochee Planning Council meeting on November 13, 1975 and the recommendations of the Marion County Planning Department of December 24, 1975, the Appellants in the person of their attorney, Stephen A. Scott, and the architect for the Appellants, David Reaves, submitted two letters dated February 4, 1976, which set forth the position of the Appellants on the aforementioned recommendations of the Planning Council and the Marion County Planning Department. Copies of these letters of February 4, 1976 have been filed with the State of Florida, Division of Administrative Hearings, and are made a part of the record herein. On February 13, 1976 the Marion County Plat Committee prepared and sent to Marion County suggested wording changes for previously recommended conditions to the approval of Appellants' application. A copy of these suggested working changes is attached hereto as Exhibit "M" to the Appellants' petition and made a part of the record herein. In response to the February 13, 1976 Marion County Plat Committee suggested wording changes for previously recommended conditions and/or modifications applicable to the application dated February 13, 1976, the Appellants' attorney, Stephen A. Scott filed a letter of February 18, 1976. This letter is filed in the case by permission of the Hearing Officer and is made a part of the record herein. At the conclusion of the public hearing on February 18, 1976, Marion County adopted a resolution denying approval of Appellants' application. A copy of said resolution was attached as Exhibit "A" to Appellants' petition and is made a part of the record herein. In the course of the DRI process, not all aspects of the application, Exhibit "B", were disputed by the various planning agencies, the Appellee and the Intervenor. Moreover, Alachua County, Florida has given its approval and any reference to action before that governmental body is for the limited purposes of describing the Marion County, Florida application. Therefore, the discussion of the facts will be in terms of those facts which were disputed and not those facts in support of the application which are not in dispute. The points of contention between the parties are primarily discussed in the Exhibit "B", Development of Regional Impact, Planning Concepts and Zoning Requests and its addendum; Exhibit "G", the recommendations of the Withlacoochee Regional Planning Council of November 13, 1975; Exhibit "H", the Marion County Planning Department, Statement of considerations and recommendation; Exhibit "J", the minutes of the Marion County Planning and Zoning Department meeting, January 12, 1976; the letters of February 4, 1976, from the representatives of the Appellant, David Reaves and the Appellants' attorney Stephen A. Scott; Exhibit "M", the Marion County Plat Committee suggested wording changes for previously recommended conditions and/or modifications, dated February 13, 1976; the discussion of the aforementioned document in the course of the public hearings of January 21, 1976, February 10, 1976 and February 18, 1976 and the Exhibit "A", Resolution and Development Order of the Marion County Board of County Commissioners. The proposed development is a horse ownership oriented community located 12 miles south of Gainesville, Florida and 18 miles north of Ocala, Florida and it encompasses an area of approximately 5 square miles (3200 acres). The statement of market study is found on page 87 of Exhibit "B". This project is located on the border of Alachua and Marion Counties, Florida. One sixth of this area lies within Alachua County and the remaining area in Marion County. The highway system as shown in map "J" of Exhibit "B". The project has five developmental phases as described in the Exhibit "B" and within those developmental phases are planned construction of midrise, townhouse, patiohouse, and single family dwellings for a total population build out in all phases of approximately 8,234 residents. This project also anticipates lodges to be built in the various phases to accommodate additional average yearly population of 1,200 persons. Its estimated that visitors will total 834 at the completion of all phases, for a total of 10,000 plus persons within the development at the end of the final phase. Further discussion of these statistics may be found on page 15 of Exhibit "B". At present the area is primarily agricultural and is zoned as such. Within the immediate vicinity of the project are the towns of Micanopy and Mcintosh and the community of Evinston. These communities together with the population immediately outside these towns would total approximately 2,500 people. Consequently, the area can best be described as rural, as opposed to the suburban nature of the proposed development. The difference in character in the locale as it presently exists and as is proposed by the development plan is the principal point of contention between the appellants on the one side, and the Appellee and Intervenor on the other. It is the suggestion of the Appellants that the project can be developed and carry with it a suburban nature without being inconsistent with or destroying the rural character of the surrounding towns and unincorporated areas. On the other hand the Appellee and Intervenor suggest that to allow this project would destroy the rural lifestyle of the area. The transcript of the proceedings before the Board of County Commissioners, Marion County, Florida held on January 21, 1976, February 10, 1976, and February 18, 1976 developes in detail the opposing points of view on the issue of the compatibility of the development with the present surroundings. Considering the distance between the proposed development and the larger communities in the areas to wit, Gainesville and Ocala, the rural nature of the land at present and the fact that this development would be potentially the third largest community in the Alachua County and Marion County area, the development does not appear to be compatible with its surroundings. The Appellant has proposed a private roads community, and this concept is contrary to the express policy of Marion County, Florida. Prohibition to this form of private roads is set forth in subsection 2A.13 of the Public Works Manual, Marion County, Florida. There is concern by the Appellee on the question of access of the public through the private road system, in that it would create a necessity the public to go around the entire development. However, at present there are public roads serving the area and it is not contemplated that future public roads will go through the project. The Appellee is also concerned with maintenance of speed limits on private property and resubdivision of the parcel of land in the future where private roads have been allowed. The restriction against private roads has been waived in Marion County in the past and could be waived in this instance if a private road network or a combination of private and public road network were built in the development. The Appellee would require that the network be built to Marion County Specifications, and the Appellant agrees. There are proposed to be built two bridges. One bridge across Interstate-75 incident to the last phase of the project and other bridge across SE-10, County Line Road. The Appellee would require conceptual approval of these matters by the permitting agencies going into the project, and the bridges would be constructed at the developers' expense prior to the development phase effected by the bridges. Other roads affected by the project are State Road 320 and Hickman Road which are in the southern part of the project. If these roads were utilized, access for emergency, police, fire and other needs of similar nature would have to be worked out. In connection with the question of access, the developer had initially proposed that the project be a gated community with private security patrols within the community. In view of the considerable debate in the course of the proceedings about this technique of a gated community and private security patrol, the developer has indicated a willingness to forgo the utilization of perimeter walls or fencing and private security patrols or entrance guards. As mentioned before, the land selected for development is presently zoned agricultural and to achieve the purposes of the project the zoning would have to be changed to a type of residential zoning. As a part of the zoning consideration, the Appellee has asked that the Appellant submit a master plan in conjunction with or as a part of the zoning change. The conditions of the master plan are as set forth in pages 6 - 9 of the December 24, 1975 report which is Exhibit "H". The Appellants' specific response to the question of the master plan as it relates to matters of zoning is found in the February 4, 1976 letter of attorney Stephen A. Scott. In summary, the developer is concerned with the wording of some of the provisions of the December 24, 1975 report, Exhibit "H", and with the repetitious aspects of the master plan, in view of the fact that the questions have been addressed through the DRI. The letter also indicates a reluctance to divulge detailed financial information about the developer. There are certain aspects about the development proposal which contemplate the sponsorship by a homeowners association. Among these aspects are security patrol, fire protection, sewage treatment, recreational facilities, maintenance of recreational facilities, water treatment and service, and eventual health care. These items are in addition to the construction and maintenance of private roads, to include storm drainage. The Appellee has requested that the developer in detail the intricacies of the homeowners association and the method by which it may accomplish the aforementioned goals. Again this discussion is found in pages 6 - 9 of the Exhibit "H". The related matters of health care in the initial 4 stages and long term treatment at the point of final build out must be accomplished by coordination with emergency transportation to the hospitals in the Gainesville and Ocala area. The health care facilities are shown on map "I" to the Exhibit "B". At some point in time, it is the feeling of the Appellants that a fulltime physician will establish a clinic due to the number of persons in the development community, without the need for any subsidy by the developer. Medical evacuation seems to be suggested as a function of the homeowners association, in the latter phases. The appellant and appellee acknowledged that the acreage for a landfill site for solid waste disposal would be off the grounds of the project. This would need to be within a five mile travelling of distance to satisfy the Appellee and to meet the requirements of the State of Florida, Department of Environmental Regulation. The acreage necessary would be 35 acres. The resolution of the question of location was not resolved between the parties; however, it seems that some plan by which the developer purchased a site either by having that site selected by the Appellee and then purchasing the site or paying a fixed sum of money to the County for such a purpose is indicated. The unresolved issues pertain to the purchase of the equipment necessary and the arrangement for the maintenance of the site location. In the past in Marion County, this type of landfill has been maintained as a part of commercial contracts for collection and disposal of solid waste1 and nothing suggests that this could not be achieved in this instance. The soil description and analysis is found beginning on page 32 of Exhibit "B" and within maps E, F, and G of Exhibit "B". An examination of the report shows that much of the soil is Blichton-Kendrick Association which has slow permeability. Other places are Bayboro-Placid Association which is low wet lands that have interspersed with them really poorly drained deep sands. Within this overall network it is intended that a sewage plant be placed, which treats the sewage and utilizes the activated sludge method with some form of additional treatment for spray irrigation of the remaining effluent. The site location and details of the treatment plan will be approved by the State of Florida, Department of Environmental Regulation. There are 243 ranches and ranchettes which are intended for septic tank utilization and individual wells for water supply. Discussion of these matters is found on pages 93 through 96 of Exhibit "B". Storm water disposal, in consideration of the 100 year flood elevations are found on pages 97 through 101, and map "G" of Exhibit "B". Some special problems that have occurred in the past pertain to the question of storm water disposal. The Old Field Pond area has had flooding. Flooding has occurred across SE-10 over U.S. 441 and into the adjacent land owner's property. Moreover, the Fire Tower Road which is in the area of SE-10 has flooded and one requirement would be consideration of those property owners who utilize SE-10 as an alternate route to the so called Fire Tower Road in times of flooding. As shown in the map on page 34 of Exhibit "B" there are a number of recharge wells in the active Old Field Pond area. It is the feeling of the Appellee through its staff reports, i.e., the Withlacoochee Planning Council report of November 13, 1975 and the agreement of other staff agencies that these recharge wells should be plugged to avoid the problem of liquid waste going directly back into the Floridian Aquifer, which flows under the property. The developer feels that this should only be done after testing. Discussion was also entered into about the coordination of sewage treatment and water supply needs with the surrounding communities of Mcintosh and Micanopy. The provision for electric power is discussed by letters from the Florida Power Corporation and Clay Electric Cooperative, Inc. found on pages 112 and 113 of Exhibit "B". There is concern that due to prior power shortages in the immediate service area, that further service obligations would diminish the quality of the electric service. This indication runs contrary to the comments within the letters of the two utility companies and it has been suggested that greatly increased needs would promote more efficient electric service. This latter argument, does not address the conditions in the early phases of development. A matter of much discussion was the need for schools, fire protection and police protection. If the private security and fire service concept is rejected, there is no indication whether these needs could be met by the Appellee, although tax revenues would be generated to assist in responding to those needs. On the former question of schools, there has been preliminary contact by the developers agent in considering regional schools, since the project lies within two counties, but that contact has been very limited. The question of site location for a school to service this community and surrounding communities and the sharing of the costs of such implementation is also in the preliminary stages. Therefore, matters concerning the school system are yet to be resolved. The project contemplates a number of recreational areas, lodges and stores. The lodges and stores would be open to the public, but the recreational facilities are primarily designed for the residents. The discussion of the recreational areas within the project brings to light the question of the possible service community which would grow out of the development. It has been estimated by the Appellant that 807 persons in terms of average annual construction employment will be needed for the five phases of the development. Discussion of these aspects of the project begins on page 82 of Exhibit "B". Based upon this projection, the possibility exists that some satellite community would form in the immediate vicinity of the project site, in view of the distances between the project site and the towns of Ocala and Gainesville. None of the surrounding communities, nor the developer have specifically addressed the deployment of the so called satellite community, in terms of housing, essential services and recreation. Another consideration which is in dispute is the archaeological significance of the project land and the necessary steps to preserve these archaeological finds. A discussion of the archaeology of this site is found on pages 59 through 80 of Exhibit "B". The dispute arises over the necessary steps to the preservation of the archaeologically significant sites, with the Appellee suggesting compliance with the recommendation of the archaeologist's report in Exhibit "B" and the Appellants desiring to make a site by site isolation of the significant archaeological finds and subsequent preservation of those sites at the point of development encounter. Another similar issue is game preservation. There is evidence that the Florida Panther has passed through the development area since tracks were found on the western part of the proposed development. In addition, the Florida Sandhill Crane and Wood Ibis have been sited at Tuscaeilla Lake, on the wet prairie just south of that body of water at the northwest pond. Further discussion of these endangered species and other species of wildlife is found on pages 56 and 57 of the Exhibit "B". A statement by a witness of the Florida Game and Fresh Water Fish Commission was to the effect that the Florida Panther will not stay in the area which is developed to the extent proposed herein. Finally, consideration was given to the question of the sequence of permitting within the five phases of the proposed project. The Appellee has expressed a desire to withhold local permits until federal and state permits were given, which would have an effect on how local permits would be granted. The Appellants are concerned that these local permits in the initial phases, not be held up while waiting for federal or state permits which would pertain to a latter phase. This is a particular concern in view of the fact that the stated five year build out of the project does not seem to be realistic and the actual build out will be between ten and twenty years from the point of any DRI permitting. The requirement for obtaining federal and state permits prior to the local permits at the commencement of each phase and obtaining a general statement of commitment by the federal and state systems in the later phases, was discussed as a solution in the bridge over Interstate-75 and would seem an appropriate solution to other issues similarly in dispute.
Recommendation It is recommended that the Application for Development Approval for a Development of Regional Impact filed with the Withlacoochee Regional Planning Council on August 20, 1975 for preliminary review be denied. DONE AND ENTERED this 29th day of October, 1976, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Stephen A. Scott, Esquire Post Office Box 1292 Gainesville, Florida 32602 MGIC - Janis Properties, Inc. 1550 Madruga Avenue Coral Gables, Florida 33146 Ernest Tew, as Trustee Suite B-1 901 Northwest Eighth Avenue Gainesville, Florida 32601 Mr. Jackson E. Sullivan Withlacoochee Regional Planning Council 3500 Northeast Silver Springs Boulevard Suite 4 Ocala, Florida 32670 R. Stephen Ryder, Esquire Marion County Attorney Board of County Commissioners of Marion County Post Office Box 81 Ocala, Florida 32670 Honorable Reubin O'D. Askew Governor State of Florida The Capitol Tallahassee, Florida 32304 Honorable Robert L. Shevin Attorney General The Capitol Tallahassee, Florida 32304 Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32304 Honorable Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32304 Honorable Bruce Smathers Secretary of State The Capitol Tallahassee, Florida 32304 Honorable Philip F. Ashler State Treasurer The Capitol Tallahassee, Florida 32304 Honorable Gerald Lewis Comptroller The Capitol Tallahassee, Florida 32304 Louis Hubener, Esquire 660 Apalachee Parkway Tallahassee, Florida 32304 Counsel for the Division of State Planning Florida Land and Water Adjudicatory Commission c/o Secretary of the Department of Administration 530 Carlton Building Tallahassee, Florida 32304 ATTENTION: David V. Kerns, Esquire Robert T. Roess, President Florida Investors Mortgage Corp Post Office Box 639 Gainesville, Florida 32601 Vice Chairman, Simonton-Tuscawilla Concerned Citizens
The Issue The issues in these cases are whether two community development district petitions should be granted: the first, a Petition to Contract Lakewood Ranch Community Development District 2; and the second, a Petition to Establish Rule [sic] for Lakewood Ranch Community Development District 5.
Conclusions Under Section 190.003(6), Florida Statutes (2000), a "community development district" (CDD) is "a local unit of special-purpose government which is created pursuant to this act and limited to the performance of those specialized functions authorized by this act; the boundaries of which are contained wholly within a single county; the governing head of which is a body created, organized, and constituted and authorized to function specifically as prescribed in this act for the delivery of urban community development services; and the formation, powers, governing body, operation, duration, accountability, requirements for disclosure, and termination of which are as required by general law." (All of the following statutory citations are to the year 2000 codification of the Florida Statutes.) Sections 190.006 through 190.046 constitute the uniform general law charter of all CDDs, which can be amended only by the Florida Legislature. Section 190.011 enumerates the general powers of CDDs. These powers include the power of eminent domain inside the district and, with the approval of the governing body of the applicable county or municipality, outside the district for purposes related solely to water, sewer, district roads, and water management. Section 190.012 lists special powers of CDDs. Subject to the regulatory power of all applicable government agencies, CDDs may plan, finance, acquire, construct, enlarge, operate, and maintain systems, facilities, and basic infrastructures for: water management; water supply, sewer, and wastewater management; needed bridges and culverts; CDD roads meeting minimum county specifications, street lights, and certain mass transit facilities; investigation and remediation costs associated with cleanup of environmental contamination; conservation, mitigation, and wildlife habitat areas; and certain projects within or without the CDD pursuant to development orders from local governments. After obtaining the consent of the applicable local government, a CDD may have the same powers with respect to the following "additional" systems and facilities: parks and recreation; fire prevention; school buildings; security; mosquito control; and waste collection and disposal. Section 190.046(1) provides for the filing of a petition for contraction of a CDD. Under paragraphs (f) and (g) of Section 190.046(1), petitions to contract a CDD by more than 250 acres "shall be considered petitions to establish a new district and shall follow all of the procedures specified in s. 190.005." Section 190.005(1)(a) requires that the petition to establish a CDD be filed with FLAWAC and submitted to the County. The petition must describe by metes and bounds the proposed area to be serviced by the CDD with a specific description of real property to be excluded from the district. The petition must set forth that the petitioner has the written consent of the owners of all of the proposed real property in the CDD, or has control by "deed, trust agreement, contract or option" of all of the proposed real property. The petition must designate the five initial members of the Board of Supervisors of the CDD and the district’s name. The petition must contain a map showing current major trunk water mains and sewer interceptors and outfalls, if any. Both the petition to contract District 2 and the petition to establish District 5 meet those requirements. Section 190.005(1)(a) also requires that the petition propose a timetable for construction and an estimate of construction costs. The petition must designate future general distribution, location, and extent of public and private uses of land in the future land-use element of the appropriate local government. The petition must also contain a Statement of Estimated Regulatory Cost. Both the petition to contract District 2 and the petition to establish District 5 meet those requirements. Section 190.005(1)(a) also requires the petitioner to provide a copy of the local government’s growth management plan (the local government comprehensive plan). District 2 and SMR have done so. Section 190.005(1)(b) requires that the petitioner pay a filing fee of $15,000 to the county and to each municipality whose boundaries are within or contiguous to the CDD. The petitioner must serve a copy of the petition on those local governments, as well. District 2 and SMR have met those requirements. Section 190.005(1)(c) permits the county and each municipality described in the preceding paragraph to conduct an optional public hearing on the petition. Such local governments may then present resolutions to FLAWAC as to the proposed property for the CDD. Manatee County has exercised this option and has adopted a resolution in support of the contraction of District 2 and establishment of District 5. Section 190.005(1)(d) requires a DOAH ALJ to conduct a local public hearing pursuant to Chapter 120, Florida Statutes. The hearing "shall include oral and written comments on the petition pertinent to the factors specified in paragraph (e)." Section 190.005(1)(d) specifies that the petitioner must publish notice of the local public hearing once a week for the four successive weeks immediately prior to the hearing. District 2 and SMR have met those requirements. Under Section 190.005(1)(e), FLAWAC must consider the following factors in determining whether to grant or deny a petition for the establishment of a CDD: Whether all statements contained within the petition have been found to be true and correct. Whether the establishment of the district is inconsistent with any applicable element or portion of the state comprehensive plan or of the effective local government comprehensive plan. Whether the area of land within the proposed district is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developable as one functional interrelated community. Whether the district is the best alternative available for delivering community development services and facilities to the area that will be served by the district. Whether the community development services and facilities will be incompatible with the capacity and uses of existing local and regional community development services and facilities. Whether the area that will be served by the district is amenable to separate special-district government. Factor 1 Some statements in the original petition to contract District 2 were not true and correct and had to be revised. As revised, all statements in the petition were shown by the evidence to be true and correct. All statements in the petition to establish District 5 were shown by the evidence to be true and correct. There was no evidence to the contrary. Factor 2 In these cases, the evidence was that the proposed contraction of District 2 and establishment of District 5 are not inconsistent with any applicable element or portion of the state comprehensive plan or of the local government comprehensive plan. There was no evidence to the contrary. (A different and more detailed review is required to determine that future development within the proposed CDDs will be consistent with all applicable laws and local ordinances and the Manatee County Comprehensive Plan. Establishment of a CDD does not constitute and should not be construed as a development order or any other kind of approval of the development anticipated in the CDD. Such determinations are made in other proceedings.) Factor 3 In these cases, the evidence was that the areas of land within District 2, as proposed to be contracted, and within proposed District 5 are of sufficient size, are sufficiently compact, and are sufficiently contiguous for each proposed CDD to be developable as a functional, interrelated community. There was no evidence to the contrary. Factor 4 In these cases, the evidence was that District 2, as proposed to be contracted, and proposed District 5 are the best alternatives available for delivering community development services and facilities to the areas that will be served by those two proposed CDDs. There was no evidence to the contrary. Factor 5 In these cases, the evidence was that the proposed community development services and facilities will not be incompatible with the capacity and uses of existing local and regional community development services and facilities. There was no evidence to the contrary. Factor 6 In these cases, the evidence was that the areas to be served by District 2, as proposed to be contracted, and proposed District 5 are amenable to separate special-district government. There was no evidence to the contrary. REPORT AND CONCLUSIONS SUBMITTED this 22nd day of January, 2001, in Tallahassee, Leon County, Florida. ___________________________________ J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of January, 2001. COPIES FURNISHED: Erin McCormick Larrinaga, Esquire Fowler, White, Gillen, Boggs, Villareal and Banker, P.A. Post Office Box 1438 Tampa, Florida 33601-1438 Jose Luis Rodriguez, Esquire Governor's Legal Office The Capital, Room 209 Tallahassee, Florida 32399-0001 Donna Arduin, Secretary Florida Land and Water Adjudicatory Commission Executive Office of the Governor 2105 The Capitol Tallahassee, Florida 32399 Barbara Leighty, Clerk Growth Management and Strategic Planning The Capitol, Suite 2105 Tallahassee, Florida 32399 Charles Canaday, General Counsel Office of the Governor Department of Legal Affairs The Capitol, Suite 209 Tallahassee, Florida 32399-0001
