The Issue The issue presented in this proceeding is whether the Amended Petition to Amend the Boundaries of Village Community Development District No. 10 (Amended Petition) satisfies the requirements set forth in chapter 190, Florida Statutes, 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).
The Issue At issue in this case is whether the Florida Land and Water Adjudicatory Commission (FLWAC) should grant the Petition to Amend the Boundary of the Villages of Westport Community Development District (CDD, or District) filed on December 23, 2005 (Petition), as amended and supplemented.
The Issue The issue in this proceeding is whether the petition to establish the Sampson Creek Community Development District meets the applicable criteria set forth in Chapter 190, Florida Statutes, and Chapter 42-1, Florida Administrative Code.
Findings Of Fact Petitioner is seeking the adoption of a rule by the Commission to establish the Sampson Creek Community Development District. The proposed District consists of approximately 1,015 acres located within unincorporated St. Johns County, Florida. There are two out-parcels, totaling 3.7 acres, within the areas to be included in the District. No adverse impact on these out parcels is expected from the establishment of the district. The estimated cost of the infrastructure facilities and services which are presently expected to be provided to the lands within the District was included in the Petition. Petitioner's Composite Exhibit 1 was identified for the record as a copy of the Petition and its exhibits as filed with the Commission. Witnesses Maier, Walters, Boring, and Fishkind each stated that he had reviewed portions of the contents of the petition and its attachments and affirmed the petitions findings. Witness Maier testified that the Petitioner has written consent to establish the District from the owners of one hundred percent of the real property located within the lands to be included in the District. Witness Maier also presented deeds for parcels of land within the boundaries of the proposed District which have been acquired by the Petitioner or its subsidiaries, as well as consent forms from the Petitioner's subsidiaries. The Petition and its attached exhibits are true and correct, with the addition of the deeds showing land ownership and owners' consent as specified above. Witnesses Walters and Fishkind reviewed the proposed District in light of the requirements of the State Comprehensive Plan, Chapter 187, Florida Statutes. Witness Walters also reviewed the proposed District in light of the requirements of the St. Johns County Comprehensive Plan. From a planning and economic perspective, four subjects, subject 16, 18, 21, and 26, of the State Comprehensive Plan apply directly to the establishment of the proposed District as do the policies supporting those subjects. Subject 16, titled Land Use, of the State Comprehensive Plan recognizes the importance of locating development in areas with the fiscal ability and service capacity to accommodate growth. The proposed District will: have the fiscal capability to provide a wide range of services and facilities to the population in the designated growth area; help provide infrastructure to development the County, thereby helping limit unintended, unplanned sprawl; facilitate the delivery of infrastructure and services to assist in fulfilling the community plan. Subject 18, titled Public Facilities of the State Comprehensive Plan provides that the state shall protect substantial investments in public facilities and plan for and finance new facilities to serve residents in a timely, orderly and efficient manner. The proposed District will be consistent with this element because the District will: plan and finance the infrastructure systems and facilities needed for the development of lands within the District in a timely, orderly, and efficient manner; provide the infrastructure systems and facilities within the District with the landowners and residents benefiting from the new public facilities bearing the costs associated with construction, operation, and maintenance of the facilities; act in a type of 'infrastructure partnership' with St. Johns County; have financial self-sufficiency through the use of special assessments, as well as user charges or fees, to provide public facilities; provide a consistent, innovative and fiscally sound alternative for financing public facilities by bringing the cost of managing and financing public facilities down to a level of government closest to its beneficiaries and connecting those who pay for facilities with those who directly benefit from those facilities and services; and be structured to assure secure revenue sources capable of meeting District responsibilities. Subject 21, titled Governmental Efficiency of the State Comprehensive Plan provides that governments shall economically and efficiently provide the amount and quality of services required by the public. The proposed District will be consistent with this element because the proposed District will: cooperate with other levels of Florida government, such as through entering into interlocal agreement to address maintenance issues for certain roads; be established under uniform general law standards as specified in Chapter 190, Florida Statutes; be professionally managed, financed, and governed by those whose property directly receives the benefits; not burden the general taxpayer with costs for services or facilities inside the District; and plan and implement cost efficient solutions for the required public infrastructure and assure delivery of selected services to residents. Subject 26, titled Plan Implementation of the State Comprehensive Plan, provides that systematic planning shall be integrated into all levels of government, with emphasis on intergovernmental coordination and citizen involvement. The proposed District is consistent with this element of the State Comprehensive Plan because: the proposed District will systematically plan for the construction, operation and maintenance of the public improvements and the community facilities authorized under Chapter 190, Florida Statutes, subject to and not inconsistent with the local government comprehensive plan and land development regulations; the District meetings are publicly advertised and are open to the public so that all District property owners and residents can be involved in planning for improvements; Section 189.415, Florida Statutes, requires the District to file and update public facilities reports with the County, which it may rely upon in any revisions to the local comprehensive plan. Based on the testimony and exhibits in the record, the proposed District will not be inconsistent with any applicable element or portion of the State Comprehensive Plan. Witness Walters testified that since St. Johns County has already found the development within the proposed District to be not inconsistent with the St. Johns County local comprehensive plan, the establishment of a community development district would not cause any inconsistency and would be in furtherance of four of the plan's policies, goals and objectives: Policy H.1.3.4 of the St. Johns County Comprehensive Plan states that 'DRI's planned unit subdivisions, and other large developments shall provide for the dedication of parks and open space to be generated by the development according to the level of service standards.' The proposed District will finance the construction of, and ultimately own and maintain, a community recreational facility. Goal J.1 of the St. Johns County Comprehensive Plan states that St. Johns County is to ensure the orderly and efficient provision of infrastructure facilities and services such as roads, utilities, recreation, and drainage. The proposed District will serve as an alternative provider of these infrastructure systems and services to meet the needs of the lands within its boundaries; Objective J.1.7 of the St. Johns County Comprehensive Plan states that the County shall manage fiscal resources to ensure the provision of needed infrastructure. The proposed District will provide the infrastructure facilities and services needed for its lands without burdening the fiscal resources of the County or impacting the bonding limits contained in Policy J.1.7.; Objective K.1.6 of the St. Johns County Comprehensive Plan calls for St. Johns County to work cooperatively with other units of government to address issues and concerns. The proposed District may be expected to enter into interlocal agreements with the County to provide certain enhanced maintenance. Additionally, over the long term, the establishment of the proposed District will provide another unit of local government in place and able to cooperate with the County on future issues and concerns. The State of Florida Department of Community Affairs also reviewed the petition to establish the proposed District and concluded that the petition was consistent with the local comprehensive plan. Based on the evidence in the record, the proposed District will not be inconsistent with any applicable element or portion of the local comprehensive plan, and will in fact further the goals provided. Most of the land in the proposed District is part of a planned community included in a Planned Unit Development (PUD) approval issued by St. Johns County. The PUD was approved on February 10, 1998. The PUD is found in St. Johns County Ordinance No. 98-7. Section 6 of the PUD Application, which is incorporated into Ordinance 98-7 by reference, explicitly states that a community development district will be established and requires the establishment of the District prior to the sale of the first lot within the development. Petitioner is developing all of the lands within the District as a single master-planned community. Witness Walters testified that functional interrelation means that each community purpose has a mutual reinforcing relationship with each of the community's other purposes. Each function requires a management capability, funding source and an understanding of the size of the community's needs, so as to handle the growth and development of the community. Each function must be designed to contribute to the development or the maintenance of the community. The size of the District as proposed is approximately 1,105 acres. From a planning perspective, this is a sufficient size to accommodate the basic infrastructure facilities and services typical of a functionally interrelated community. Compactness relates to the location in distance between the lands and land uses within a community. The community is sufficiently compact to be developed as a functionally inter-related community. The compact configuration of the lands will allow the District to provide for the installation and maintenance of its infrastructure facilities in a long-term cost efficient manner. 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 proposed District is sufficiently contiguous for planning purposes and for the purpose of district governance. The size of the proposed community within the District provides a sufficient economic base to absorb the debt costs and annual operating costs for the proposed District. There will be no economic disincentives to the provision of the infrastructure facilities contemplated. From planning, economics, engineering, and management perspectives, the area of land to be included in the proposed District is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developed as a single functionally interrelated community. It is presently intended that the District will participate in the construction or provision of certain infrastructure improvements as outlined in the petition. Installation and maintenance of infrastructure systems and services by the District is expected to be financed by bonds and repaid through the imposition of special assessments on benefited property within the District. Use of such assessments will ensure that the real property benefiting from District services is the same property which pays for them. Two types of alternatives to the use of the proposed District were identified. First, the County might provide facilities and services from its general fund or through a MSTU. Second, facilities and services might be provided by some private means, without public bidding, with maintenance delegated to a homeowners association (HOA). The District exceeds the available alternatives at focusing attention to when and where and how the next system of infrastructure will be required. This results in a full utilization of existing facilities before new facilities are constructed and reduces the delivered cost to the citizens being served. Only a community development district allows for the independent financing, administration, operations, and maintenance of the land within such a district. Only a community development district allows district residents to completely control the district. All of the other alternatives do not have these characteristics. From an engineering perspective, the proposed District is the best alternative to provide the proposed community development services and facilities because it is a long-term stable, perpetual entity capable of maintaining the facilities over their expected life. From planning, economic, engineering, and special district management perspectives, the proposed District is the best alternative available for delivering community development services and facilities to the are that will be served by the District. The services and facilities proposed to be provided by the District are not incompatible with uses and existing local and regional facilities and services. The District's facilities and services within the proposed boundaries will not duplicate any existing regional services or facilities which are provided to the lands within the District by another entity. None of the proposed services or facilities are presently being provided by another entity for the lands to be included within the District. Therefore, the community development services and facilities of the proposed district will not be incompatible with the capacity and uses of existing local and regional community development services and facilities. As cited previously, from planning, economics, engineering, and special district management perspectives, the area of land to be included in the proposed District is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developed and become a functionally interrelated community. The lands to be included within the proposed District have a need for the basic infrastructure being provided. 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 infrastructure systems and facilities. Based upon these characteristics, the proposed District is expected to be financially viable. From planning, engineering, economic, and management perspectives, the area that will be served by the intended District is amenable to separate special-district government. 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. Section 190.005(1)(a), Florida Statutes, requires the petition to contain a metes and bounds description of the external boundaries of the District. Petitioner's Composite Exhibit 1 contains such a description. Section 190.005(1)(a)1, Florida Statutes, also requires a description of any real property within the external boundaries which is to be excluded from the District and the last known address of the owners of such properties. Petitioner's Composite Exhibit 1 contains the required information. Section 190.005(1)(a), Florida Statutes, requires that the petition contain the proposed timetable for the construction of any district services and the estimated construction costs for those services as well as the designation of the future general distribution, location, and extent of public and private land uses proposed for the area by the future land use element of the adopted local government comprehensive plan. Petitioner's Composite Exhibit 1 contains this information. Section 190.005(1)(a), Florida Statutes, requires the petition to contain written consent to establishment of the District by the owners of one-hundred percent of the real property to be included within the proposed District. Petitioner's Composite Exhibit 1 contains this information which was supplemented by Petitioner at hearing, as it or its subsidiaries acquired title to the lands proposed to be included within the District. Sections 190.005 and 190.006, Florida Statutes, require that each member of a board of supervisors be a resident of Florida and a citizen of the United States. The proposed board members meet these criteria. Section 109.005(1)(a), Florida Statutes, requires the petition to include a Statement of Estimated Regulatory Costs (SERC), which meets the requirements of Section 120.541, Florida Statutes. The petition contains a SERC. It meets all requirements of Section 120.541, Florida Statutes. The SERC contains an estimate of the costs and benefits to all persons directly affected by the proposed rule to establish the District -- the State of Florida and its citizens, the country and its citizens, Petitioner, and consumers. Beyond administrative costs related to rule adoption, the State and its citizens will only incur minimal costs from establishing the District. These costs are related to the incremental costs to various agencies of reviewing one additional local government report. The proposed District will require no subsidies from the State. Benefits will include improved planning and coordination of development, which is difficult to quantify but is nonetheless substantial. Administrative costs incurred by the County related to rule adoption should be minimal. Benefits to the County will include improved planning and coordination of development, without incurring any administrative or maintenance burden for facilities and services within the proposed District except for those it chooses to accept. Consumers will pay non-ad valorem or special assessments for certain facilities. Location within the District is voluntary. Generally, District financing will be less expensive than maintenance through a property owners' association or capital improvements financed through developer loans. Benefits to consumers in the area within the community development district will include a higher level of public services and amenities than might otherwise be available, completion of District-sponsored improvements to the area on a timely basis, and a larger share of direct control over community development services and facilities within the area. Petitioner has complied with the provisions of Section 190.005(1)(b), Florida Statutes, in that St. Johns County was paid the requisite filing fees. Section 190.005(1)(d), Florida Statutes, requires the Petitioner to publish notice of the local public hearing in a newspaper of general circulation in St. Johns County for four consecutive weeks prior to the hearing. The notice was published in a newspaper of general paid circulation in St. Johns County (the St. Augustine Record) for four consecutive weeks on March 13, 2000, March 20, 2000, March 27, 2000, and April 3, 2000. All publications were prior to the hearing. Mr. Stephenson, on behalf of the County's community development district processing group formed in accordance with Section 5.06.00 of the St. Johns County Land Development Code, presented the following proposed findings regarding the approval of the development within the proposed District: On October 28, 1999, the St. Johns County Board of County Commissioners entered into an Impact Fee Agreement with St. Joe Residential Acquisitions, Inc., and A & S Land Development Company to widen a portion of CR 210 in order to meet concurrency requirements for two projects. St. Joe Residential Acquisitions, Inc. is the developer of the property contained within the Sampson Creek CDD Petition. The project is approved with a Planned Unit Development (PUD) zoning and contains 799 single family residential dwelling units and associated roadways, retention areas, common areas, sales and recreation complex, and an 18-hole golf course. St. Johns County Board of County Commissioners approved the PUB on February 10, 1998. The PUD provides that a CDD will be established and will be in place prior to the sale of the first lot so that purchasers will be aware of their participation and membership in the CDD and of their obligation to pay any taxes that may be levied by the CDD. The PUD and Impact Fee Agreement are separate County approved documents and the creation and operation of a CDD does not in any way affect these documents or their approval without further review by the St. Johns County Board of Commissioners. Impact fee credits shall be awarded in accordance with approved Impact Fee Agreement which ensures that the credits are awarded to the appropriate entity. The CDD processing group finds no inconsistencies with the six factors as described in Section 190.005(6), Florida Statutes. With these findings, Mr. Stephenson testified that St. Johns County has no objection to the establishment of the proposed District.
Conclusions On Monday April 10, 2000, at 10:00 a.m., the local public hearing for the Petition to Establish the Sampson Creek Community Development District was held before Administrative Law Judge Diane Cleavinger, at the St. Johns County Public Library, 950 Davis Pond Boulevard, in St. Johns County, Florida. The hearing was conducted pursuant to Section 190.005, Florida Statutes, for the purpose of taking testimony, public comment, and receiving exhibits on the petition of the St. Joe/Arvida Company, L.P. (Petitioner) to establish the Sampson Creek Community Development District (District) in northern St. Johns County, Florida. This report is prepared and submitted to the Florida Land and Water Adjudicatory Commission (Commission) pursuant to Section 190.005, Florida Statutes.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Governor and Cabinet, sitting as the Florida Land and Water Adjudicatory Commission, pursuant to Chapters 120, and 190, Florida Statutes, and Chapter 42-1, Florida Administrative Code, establish the Sampson Creek Community Development District as requested by Petitioner by formal adoption of the proposed rule, after inclusion of the legal description, in substantially the form attached to this Report of Findings and Conclusions as Attachment 3. DONE AND ENTERED this 16th day of May, 2000, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 16th day of May, 2000. COPIES FURNISHED: Jonathan T. Johnson, Esquire Carolyn S. Raepple, Esquire Hopping, Green, Sams & Smith, P.A. 123 South Calhoun Street Post Office Box 6526 Tallahassee, Florida 32314 Daniel Woodring, Esquire Florida Land and Water Adjudicatory Commission The Capitol, Suite 2105 Tallahassee, Florida 32399 Donna Arduin, Secretary Florida Land and Water Adjudicatory Commission The Capitol, Suite 1601 Tallahassee, Florida 32399 Barbara Leighty, Clerk Growth Management and Strategic Planning The Capitol, Suite 2105 Tallahassee, Florida 32399 Carol Licko, General Counsel Office of the Governor The Capitol, Suite 209 Tallahassee, Florida 32399-0001
The Issue The sole issue to be addressed is whether the Petition to establish the Durbin Crossing Community Development District meets the applicable criteria set forth in Chapter 190, Florida Statutes, and Chapter 42-1, Florida Administrative Code.
The Issue The issue is whether the establishment of the Bartram Springs Community Development District meets the applicable criteria set forth in Chapter 190, Florida Statutes.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Overview Petitioner, SouthStar Development Partners, Inc., is seeking the adoption of a rule by the Florida Land and Water Adjudicatory Commission (Commission) to establish a community development district proposed to consist of approximately 1,025 acres located within the boundaries of the City of Jacksonville (City). The City is a consolidated government which has jurisdiction over and extends territorially to the limits of Duval County. The proposed name for the new District is the Bartram Springs Community Development District (the District). There are no parcels within the external boundaries of the proposed District which are to be excluded from the District. The estimated cost of the infrastructure facilities and services which are presently expected to be provided to the lands within the District was included in the Petition. The sole purpose of this proceeding was to consider the establishment of the District as proposed by 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 1 consists of the Petition and its attachments as filed with the Commission. Mr. J. Thomas Gillette, III, regional manager for north Florida for Petitioner, testified that he had reviewed the contents of the Petition and approved its findings. Mr. Gillette also generally described certain of the attachments to the Petition. Finally, Mr. Gillette testified that the Petition and its attachments were true and correct to the best of his knowledge. Mr. Douglas C. Miller, a professional engineer with England, Thims & Miller, Inc., testified that he had assisted in the preparation of portions of the Petition and its attachments. Mr. Miller also generally described certain of the attachments to the Petition which he or his office had prepared. Finally, Mr. Miller testified that the attachments to the Petition prepared by England, Thims & Miller, Inc., and admitted into evidence, were true and correct to the best of his knowledge. Dr. Henry H. Fishkind, president of Fishkind & Associates, Inc., testified that he had prepared Exhibit 11 to the Petition, the Statement of Estimated Regulatory Costs (SERC). Dr. Fishkind also testified that the SERC submitted as Attachment 11 to Petitioner's Composite Exhibit 1 was true and correct to the best of his knowledge. The Petition included written consent to establish the District from the owners of one hundred percent of the real property located within the lands to be included in the proposed District. Mr. Gillette also testified that the ownership of the lands to be included within the proposed District had not changed. The Petition and its exhibits are true and correct. Whether the establishment of the District is inconsistent with any applicable element or portion of the State Comprehensive Plan or of the effective local government comprehensive plan. Mr. Gary R. Walters, a land planner and president of Gary Walters & Associates, reviewed the proposed District in light of the requirements of the State Comprehensive Plan found in Chapter 187, Florida Statutes. Mr. Walters also reviewed the proposed District in light of the requirements of the City of Jacksonville Comprehensive Plan. The State Comprehensive Plan "provides long-range policy guidance for the orderly social, economic and physical growth of the State" by way of twenty-six subjects, and numerous goals and policies. From a planning perspective, two subjects of the State Comprehensive Plan apply directly to the establishment of the proposed District, as do the policies supporting those subjects. Subject 16, Land Use, recognizes the importance of locating development in areas with the fiscal ability and service capacity to accommodate growth. The proposed District will have the fiscal ability to provide services and facilities and help provide infrastructure in a fiscally responsible manner in an area which can accommodate development within the City. Subject 26, Plan Implementation, provides that systematic planning shall be integrated into all levels of government, with emphasis on intergovernmental coordination. The proposed District is consistent with this element of the State Comprehensive Plan because the proposed District will systematically plan for the construction, operation, and maintenance of the public improvements and the community facilities authorized under Chapter 190, Florida Statutes, subject to and not inconsistent with the local government comprehensive plan and land development regulations. Additionally, the District meetings are publicly advertised and are open to the public so that all District property owners and residents can be involved in planning for improvements. Finally, Section 189.415, Florida Statutes, requires the District to file and update public facilities reports with the local governments, which they may rely upon in any revisions to the local comprehensive plan. Dr. Fishkind reviewed the proposed District in light of the requirements of the State Comprehensive Plan and found that from a financial perspective, two subjects of the State Comprehensive Plan apply directly to the establishment of the proposed District, as do the policies supporting those subjects. Subject 18, Public Facilities, provides that the state shall protect substantial investments in public facilities and plan for and finance new facilities to serve residents in a timely, orderly, and efficient manner. The proposed District will be consistent with this element because the District will plan and finance the infrastructure systems and facilities needed for the development of lands within the District; it will be a stable, perpetual unit of local government and will be able to maintain the infrastructure servicing the lands within the District; and it will allow growth within the District to pay for itself at no cost to the City. Subject 21, Governmental Efficiency, provides that governments shall economically and efficiently provide the amount and quality of services required by the public. The proposed District will be consistent with this element because the proposed District will economically and efficiently finance and deliver those public services and facilities as needed by the District's residents and property owners. The proposed District will be professionally managed, financed, and governed by those whose property directly receives the benefits of the services and the facilities provided. Creating a District does not burden the general taxpayer with the costs for the services or facilities inside the proposed District. Based on the testimony and exhibits in the record, the proposed District will not be inconsistent with any applicable element or portion of the State Comprehensive Plan. The City of Jacksonville Comprehensive Plan contains various elements which are supported by numerous goals and objectives. Mr. Walters testified that portions of three of these elements were relevant when determining whether or not the proposed District was inconsistent with the local comprehensive plan. Within the Future Land Use Element are Goals and Objectives which are targeted to effectively manage growth in areas designated to accommodate future development and provide services in a cost-efficient manner. The proposed District is consistent with this plan element. The development within the proposed District is part of a Chapter 380, Florida Statutes, Development Order, which states that the "development is consistent with the local comprehensive plan and local land development and zoning regulations." The Development Order itself specifically notes that a community development district may be established. The proposed District is a recognized vehicle to provide the necessary services and facilities to the lands within the boundaries of the proposed District consistent with the City of Jacksonville Comprehensive Plan’s objective of coordinating land uses with urban services delivery. The goal of the Intergovernmental Coordination Element is to establish processes among various governmental, public, and private entities to coordinate development activities, preservation of the quality of life, and the efficient use of available resources. The proposed District will assist in the coordination process by providing and maintaining community infrastructure in a way that is not inconsistent with the plans and activities of related public and private agencies. The Capital Improvements Element is intended to provide necessary infrastructure in a timely and orderly manner. The proposed District will expand the areas within the City that receive infrastructure in a manner consistent with the Development Order for the area and the City of Jacksonville Comprehensive Plan. Based on the evidence in the record, the proposed District will not be inconsistent with any applicable element or portion of the local Comprehensive Plan, and will in fact further the goals provided. The Florida Department of Community Affairs (DCA) reviewed the Petition for compliance with its various programs and responsibilities. After conducting a review of the petition for consistency with the approved Development Order and Comprehensive Plan, the DCA concluded that the Petition for the Establishment of the Bartram Springs Community Development District was not inconsistent with either the Comprehensive Plan or Development Order. Whether the area of land within the proposed district is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developable as one functional interrelated community. Testimony on this criterion was provided by Messrs. Miller, Walters, and Fishkind. The proposed District will include approximately 1,025 acres, located within the borders of the City. All of the land in the proposed District is part of a planned community included in the Bartram Park Development of Regional Impact (the DRI). Functional interrelation means that each community purpose has a mutual reinforcing relationship with each of the community's other purposes. Each function requires a management capability, funding source, and an understanding of the size of the community's needs, so as to handle the growth and development of the community. Each function must be designed to contribute to the development or the maintenance of the community. The size of the District as proposed is approximately 1,025 acres. From a planning perspective, this is a sufficient size to accommodate the basic infrastructure facilities and services typical of a functionally interrelated community. The proposed facilities can be provided in an efficient, functional, and integrated manner. Compactness relates to the location in distance between the lands and land uses within a community. The community is sufficiently compact to be developed as a functionally inter-related community. The compact configuration of the lands will allow the District to provide for the installation and maintenance of its infrastructure in a long-term, cost-efficient manner. Petitioner is developing all of the lands within the District as a single master-planned community. All of these lands are governed by the DRI issued by the City. From planning, economics, engineering, and management perspectives, the area of land to be included in the proposed District is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developed as a single functionally interrelated community. Whether the proposed district is the best alternative available for delivering community development services and facilities to the area that will be served by the proposed district. It is presently intended that the District will construct or provide certain infrastructure improvements as outlined in the Petition. Installation and maintenance of infrastructure systems and services by the proposed District is expected to be paid through the imposition of special assessments. Use of such assessments will ensure that the real property benefiting from District services is the same property which pays for them. Two alternatives to the use of the 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, with maintenance delegated to a property owners' association or a home owners' association. The District is preferable to these alternatives at focusing attention on when, where, and how the next system of infrastructure will be required. This results in a full utilization of existing facilities before new facilities are constructed and reduces the delivered cost to the citizens being served. The District will construct certain infrastructure and community facilities which will be needed by the property owners and residents of the project. Expenses for the operation and maintenance of the facilities the District retains are expected to be paid through maintenance assessments to ensure that the property receiving the benefit of the district services is the same property paying for those services. Only a community development district allows for the independent financing, administration, operations, and maintenance of the land within such a district. Only a community development district allows district residents to ultimately completely control the district. The other alternatives do not have these characteristics. From an engineering perspective, the proposed District is the best alternative to provide the proposed community development services and facilities to the land included in the proposed District because it is a long-term, stable, perpetual entity capable of maintaining the facilities over their expected life. From planning, economic, engineering, and special district management perspectives, the proposed District is the best alternative available for delivering community development services and facilities to the area that will be served by the District. Whether the community development services and facilities of the proposed district will be incompatible with the capacity and uses of existing local and regional community development services and facilities. The services and facilities proposed to be provided by the District are not incompatible with uses and existing local and regional facilities and services. The District's facilities and services will not duplicate any existing regional services or facilities. None of the proposed services or facilities are presently being provided by another entity for the lands to be included within the District. Therefore, the community development services and facilities of the proposed district will not be incompatible with the capacity and uses of existing local and regional community development services and facilities. Whether the area that will be served by the district is amenable to separate special-district government. As cited previously, from planning, economic, engineering, and special district management perspectives, the area of land to be included in the proposed District is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developed and become a functionally interrelated community. The community to be included in the District has a need for certain basic infrastructure systems, and the proposed District provides for an efficient mechanism to oversee the installation of these improvements. From planning, engineering, economic, 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. The Commission has certified that the Petition to Establish the Bartram Springs Community Development District meets all of the requirements of Section 190.005(1)(a), Florida Statutes. The SERC contains an estimate of the costs and benefits to all persons directly affected by the proposed rule to establish the District -- the State of Florida and its citizens, the City and its citizens, Petitioner, and consumers. Beyond administrative costs related to rule adoption, the State and its citizens will only incur minimal costs from establishing the District. These costs are related to the incremental costs to various agencies of reviewing one additional local government report. The proposed District will require no subsidies from the State. Benefits will include improved planning and coordination of development, which is difficult to quantify but nonetheless substantial. Administrative costs incurred by the City related to rule adoption will be modest. These modest costs are offset by the $15,000 filing fee required to accompany the Petition to the City. Residents within the District will pay non-ad valorem or special assessments for certain facilities. Locating within the District is voluntary. Generally, District financing will be less expensive than maintenance through a property owners' association or capital improvements financed through developer loans. Benefits to residents within the community development district will include a higher level of public services and amenities than might otherwise be available, completion of District-sponsored improvements to the area on a timely basis, and a larger share of direct control over community development services and facilities within the area. Section 190.005(1)(a), Florida Statutes, requires a petition to include a SERC which meets the requirements of Section 120.541, Florida Statutes. The Petition filed herein contains a SERC. It meets all requirements of Section 120.541, Florida Statutes. Petitioner has complied with the provisions of Section 190.005(1)(b)1., Florida Statutes, in that the City was provided four copies of the Petition and was paid the requisite filing fee. 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 Duval County for four consecutive weeks prior to the hearing. The notice was published in a newspaper of general paid circulation in Duval County (The Florida Times Union) for four consecutive weeks on May 3, May 10, May 17, and May 24, 2002.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Land and Water Adjudicatory Commission, pursuant to Chapters 120 and 190, Florida Statutes, and Chapter 42-1, Florida Administrative Code, establish the Bartram Springs Community Development District, as requested by Petitioner, by formal adoption of the proposed rule attached to this Report as Appendix C. DONE AND ENTERED this 19th day of June, 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 19th day of June, 2002. COPIES FURNISHED: Cheryl G. Stuart, Esquire Hopping Green & Sams, P.A. Post Office Box 6526 Tallahassee, Florida 32314-6526 Charles Canady, General Counsel Florida Land and Water Adjudicatory Commission Office of the Governor The Capitol, Room 209 Tallahassee, Florida 32399-0001 Donna Arduin, Secretary Florida Land and Water Adjudicatory Commission Office of the Governor The Capitol, Room 2105 Tallahassee, Florida 32399-0001 Barbara Leighty, Clerk Growth Management and Strategic Planning The Capitol, Room 2105 Tallahassee, Florida 32399-0001 Gregory M. Munson, Esquire Office of the Governor 400 South Monroe Street, Room 209 Tallahassee, Florida 32399-6536 APPENDIX A Petitioner's Witnesses at Hearing J. Thomas Gillette, III SouthStar Development Partners, Inc. 4720 Salisbury Road, Suite 126 Jacksonville, Florida 32256-6101 Douglas C. Miller, P.E. England, Thims & Miller, Inc. 14775 St. Augustine Road Jacksonville, Florida 32258-2463 Gary R. Walters Gary Walters & Associates 12 Crooked Tree Trail Ormond Beach, Florida 32174-4338 Dr. Henry H. Fishkind Fishkind & Associates, Inc. 11869 High Tech Avenue Orlando, Florida 32817-1490 APPENDIX B List of Petitioner's Exhibits Exhibit Number Exhibit Description Petition with attachments Notice of Receipt of Petition Division of Administrative Hearings Referral Letter Department of Community Affairs Transmittal Letter Department of Community Affairs Review Letter Ordinance 2000-451-E State Comprehensive Plan The Florida Times Union Proof of Publication APPENDIX C Text of Proposed Rule CHAPTER 42___-1 BARTRAM SPRINGS COMMUNITY DEVELOPMENT DISTRICT 42___-1.001 Establishment. 42___-1.002 Boundary. 42___-1.003 Supervisors. 42____-1.001 Creation. The Bartram Springs Community Development District is hereby established. Specific Authority 120.53(1), 190.005 F.S. Law Implemented 190.005 F.S. History-New 42____-1.002 Boundary. The boundaries of the District are as follows: A portion of Sections 28, 29, 32 and 33, together with a portion of Section 48, of the Christopher Minchin Grant, all lying in Township 4 South, Range 28 East, Duval County, Florida, being more particularly described as follows: For a Point of Reference, commence at the corner common to said Sections 32 and 33, Township 4 South, Range 28 East, said Duval County and Sections 4 and 5, Township 5 South, Range 28 East, St. Johns County, Florida, said corner also lying on the county line dividing said Duval and St. Johns Counties; thence North 89° 04' 41" East, along said county line, 3281.18 feet; thence North 00° 55' 19" West, departing said county line, 5.00 feet to the Point of Beginning. From said Point of Beginning, thence South 89° 04' 41" West, 3281.22 feet to a point lying on the line common to said Sections 32 and 33; thence South 89° 33' 42" West, departing said common line, 699.85 feet to the Easterly limited access right of way line of State Road No. 9B, a variable width right of way as established on State Road Department Right of Way Map Section 72002-2513, dated 09-08-92; thence Northwesterly and Northeasterly, along said Easterly limited access right of way line, the following courses: (1) North 40° 25' 37" West, 2161.10 feet to the Point of Curvature of a curve, concave Northeasterly having a radius of 2744.79 feet; (2) along the arc of said curve, through a central angle of 14° 47' 23", an arc length of 708.51 feet to the Point of Tangency of said curve, said arc being subtended by a chord bearing and distance of North 33° 01' 55" West, 706.55 feet; (3) North 25° 38' 14" West, 2143.97 feet to the Point of Curvature of a curve, concave Easterly having a radius of 1789.86 feet; (4) along the arc of said curve through a central angle of 37° 18' 23", an arc length of 1165.41 feet to a point on said curve, said arc being subtended by a chord bearing and distance of North 06° 59' 02" West, 1144.93 feet; (5) North 10° 17' 40" East, along a non-tangent bearing, 500.14 feet; (6) North 11° 40' 10" East, 1913.60 feet to a point lying on the Southerly line of the North 1/2 of said Section 29; thence North 88° 42' 41" East, departing said Easterly limited access right of way line and along last said line, 2914.25 feet to the Southwest corner of the Northwest 1/4 of said Section 28; thence North 89° 02' 27" East, along the Southerly line of the Northwest 1/4 of said Section 28, a distance of 233.49 feet to a point lying on the Westerly right of way line of the Florida East Coast Railroad, a 100 foot right of way as now established; thence South 41° 00' 02" East, along said Westerly right of way line, 1203.71 feet to a point lying on the Westerly line of the Easterly 1/4 of the Northwest 1/4 of the Southwest 1/4 of said Section 28; thence South 00° 59' 05" East, departing said Westerly right of way line and along said Westerly line of the Easterly 1/4, a distance of 424.47 feet to the Southwest corner of said East 1/4 of the Northwest 1/4 of the Southwest 1/4; thence North 88° 54' 34" East, along the Southerly line of said East 1/4, a distance of 355.82 feet to a point lying on the aforementioned Westerly right of way line; thence South 41° 00' 02" East, along said Westerly right of way line, 6946.50 feet; thence South 81° 44' 38" West, departing said Westerly right of way line, 1239.95 feet; thence North 89° 51' 10" West, 1102.07 feet; thence South 10° 16' 03" West, 955.68 feet to the Point of Beginning. Containing 1025.40 acres, more or less. Specific Authority 120.53(1), 190.005 F.S. Law Implemented 190.004, 190.005 F.S. History-New 42____-1.003 Supervisors. The following five persons are designated as the initial members of the Board of Supervisors: J. Thomas Gillette, III, L. Alfredo Rodriguez-Walling, Walter Kehoe, Thaddeus D. Rutherford, and Leo W. Johns. Specific Authority 120.53(1), 190.005 F.S. Law Implemented 190.006(1) F.S. History-New.
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).
Conclusions Having considered the totality of the record in this cause and being mindful of the development order of Lee County referenced above and the lack of expressed opposition to the establishment of the subject community services district by Lee County or any other person or entity, it is, concluded: That all statements contained within the petition are found to be true and correct. That the creation of the district is consistent with applicable elements or portions of the Lee County Comprehensive Plan. That the area of land within the proposed district is of sufficient size, 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 would be compatible with the capacity and uses of existing local and regional community development services and facilities. That the area that will be served by the district is amenable to separate, special-district government. DONE and ENTERED this 30th day of January, 1986 in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of January, 1986. COPIES FURNISHED: Ken van Assenderp, Esq. YOUNG, VAN ASSENDERP, VARNADOE & BENTON, P.A. Post Office Box 1833 Tallahassee, Florida 32302 Melvin D. Deutsch, II, Esq. Timothy Jones, Esq. Westinghouse Gateway Communities, Inc. 1625 Hendry Street, Suite 201 Fort Myers, Florida 33901 Michael J. Ciccarone, Esq. Assistant County Attorney Lee County Post Office Box 398 Fort Myers, Florida 33902 Glenn Robertson, Secretary Florida Land Water Adjudicatory Commission Office of the Governori The Captol Tallahassee, Florida 32301
The Issue Whether Policy 20.11.1 of Goal 20: Transportation, of Rule 29H-9.002, Florida Administrative Code, (hereinafter referred to as the "Challenged Rule"), constitutes an invalid exercise of delegated legislative authority?
Findings Of Fact The Petitioners. Pasco is a political subdivision of the State of Florida. Its offices are located at 705 East Live Oak, Dade City, Florida. BAGT is an association. BAGT's approximately 697 members are involved in some manner in the development or building industry in the Tampa Bay region. For the most part, BAGT's members reside and own property within the four-county jurisdiction of the TBRPC. BAGT's membership includes approximately 176 builder and developer members and 520 associate members who are subcontractors, material suppliers, financial institutions, engineering firms, architectural firms and other types of firms that provide goods and services related to the building industry. BAGT's membership includes builders who build in "development of regional impact" (hereinafter referred to as "DRI"), projects and associate members who provide construction support services to DRI projects. During an eighteen month period, over 50 percent of the building permits issued in Hillsborough County were issued to twenty-three BAGT builder- members for DRI projects. This amounts to approximately 3.3 percent of the membership of BAGT. BAGT works on behalf of its membership to promote a strong and viable building industry. BAGT has the responsibility to "work for the elimination of governmental orders improperly restricting the home building industry and to support beneficial directives." Certificate of Reincorporation and By-Laws, BAGT exhibits 5 and 6. BAGT members have to consider the levels of service for transportation of local governments and TBRPC in obtaining permits for DRI projects. If more stringent levels of service are required for a project, the development may be prolonged and be more costly to complete. The City is a political subdivision of the State of Florida. The City's offices are located at 315 East Kennedy Boulevard, Tampa, Hillsborough County, Florida. The City and Pasco are located within the jurisdiction of TBRPC. The Petitioners are all substantially affected by the Challenged Rule. The Respondent. TBRPC is an agency of the State of Florida within the definition of the term "agency" contained in Section 120.52(1)(b), Florida Statutes. TBRPC was created pursuant to Section 186.504, Florida Statutes. TBRPC's offices are located at 9455 Koger Boulevard, St. Petersburg, Pinellas County, Florida. TBRPC's geographic boundaries, which generally include the four- county, Tampa Bay region, include the geographic areas within Department of Transportation Districts one and seven. TBRPC does not build or maintain roads. Nor does TBRPC provide funds to those that are responsible for building or maintaining roads. Comprehensive Regional Policy Plans. Pursuant to Section 186.507, Florida Statutes, all regional planning councils, including the TBRPC, are required to adopt a "comprehensive regional policy plan". Among other things, the comprehensive regional policy plan must include the following: (8) Upon adoption, a comprehensive regional policy plan shall provide, in addition to other criteria established by law, the basis for regional review of developments of regional impact, regional review of federally assisted projects, and other regional overview and comment functions. As required by Section 186.507(1), TBRPC has adopted a comprehensive regional policy plan, Rule 29H-9.002, Florida Administrative Code, Future Of The Region, A Comprehensive Regional Policy Plan for the Tampa Bay Region. The comprehensive regional policy plan was adopted in 1987, and has been amended in 1988, 1990 and 1991. Although in adopting a comprehensive regional policy plan a regional planning council is required to consider state and local plans and local governments are given an opportunity to comment, the regional planning council is not bound by those plans or comments. Section 186.507(4)-(6), Florida Statutes. TBRPC's comprehensive regional policy plan was adopted before some of the local government comprehensive plans in its region were promulgated. TBRPC interprets Sections 186.507(1) and (8), Florida Statutes, to require that it include the criteria it intends to use in its review of a DRI. The Department of Community Affairs has been designated by the Executive Office of the Governor to review comprehensive regional policy plans and amendments. See Section 186.507(2), Florida Statutes. The Department of Community Affairs reviewed TBRPC's comprehensive regional policy plan. Developments of Regional Impact. Part of the responsibility assigned to regional planning councils, including TBRPC, is the responsibility to review DRIs. Section 380.06, Florida Statutes. DRIs are created and regulated in the Florida Environmental Land and Water Management Act, Sections 380.012-380.10, Florida Statutes. DRI is defined in Section 380.06(1), Florida Statutes. The procedure for reviewing DRI applications is set out in Section 380.06, Florida Statutes. Several government agencies are involved in the review process, including TBRPC. The Department of Community Affairs is required to, among other things, adopt rules governing the review of DRI applications. Section 380.06(23)(a), Florida Statutes. Pursuant to this authority, the Department of Community Affairs has adopted Chapter 9J-2, Florida Administrative Code. These Rules wee promulgated to "ensure uniform procedural review of developments of regional impact by [the Department of Community Affairs] and regional planning agencies under this section." Section 380.06(23)(a), Florida Statutes. The Bureau of State Planning is the bureau of the Department of Community Affairs with primary responsibility for administering Chapter 380, Florida Statutes, to the extent of the Department of Community Affairs' involvement. Regional planning councils, including the TBRPC, are required to review all DRI applications involving developments in their regions. Section 380.06(12), Florida Statutes, requires that regional planning councils issue a report and make recommendations concerning the impact of proposed DRIs. Regional planning councils, while subject to any rules governing DRI review adopted by the Department of Community Affairs, are authorized to adopt additional rules concerning their review of DRI applications. Section 380.06(23)(c), Florida Administrative Code. Those rules, however, must not be "inconsistent" with the rules governing DRI review adopted by the Department of Community Affairs. TBRPC interprets Section 380.06(23)(c), Florida Statutes, as authorizing the Challenged Rule. What is "inconsistent" for purposes of Section 380.06(23)(c), Florida Statutes, is not specifically defined. Ultimately, the decision on a DRI application is made by the local government in which the DRI is located. Section 380.06(15), Florida Statutes. In making that decision the local government is required to consider the local government's comprehensive plan and land development regulations, the State Comprehensive Plan and the report and recommendations of the regional planning council. Section 380.06(14), Florida Statutes. Local governments are governed by the provisions of Section 380.06(15), Florida Statutes, in determining whether to issue a DRI. A local government's decision on a DRI application may be appealed to the Florida Land and Water Adjudicatory Commission (hereinafter referred to as "FLWAC"). Section 380.07, Florida Statutes. The final decision on the DRI application, if an appeal is taken, is made by FLWAC after a formal administrative hearing is conducted pursuant to Chapter 120, Florida Statutes. Regional planning councils have the right to appeal a local government's decision. In determining whether a DRI should be granted, local governments are not bound by any of the comments made by the regional planning council that reviewed the DRI application. They are only required to consider the comments of the regional planning council made pursuant to Section 380.06(12), Florida Statutes. Should the local government fail to adequately take into account the comments of the regional planning council, however, it faces the possibility that the regional planning council will appeal the local government's decision on a DRI application to FLWAC. The Role of Comprehensive Plans in DRI Reviews; Establishing Levels of Service. The local government comprehensive plan and the land development regulations which a local government is required to consider when reviewing a DRI application are required by Part II of Chapter 163, Florida Statutes. Every local government in Florida is required by Section 163.3167, Florida Statutes, to adopt a comprehensive plan. Land development regulations governing the issuance of development orders are required by Section 163.3202, Florida Statutes. In the TBRPC region the comprehensive plans of all local governments, except St. Petersburg Beach and Port Richey, have been found by the Department of Community Affairs to be in compliance with Chapter 163, Florida Statutes. Among other things, each comprehensive plan must provide for transportation facilities within the local government's geographic area. Section 163.3177, Florida Statutes. The Legislature has required that local governments specifically establish levels of service for public facilities in their comprehensive plans. Section 163.3177(10)(f), Florida Statutes. See also Rule 9J-5.005(3), Florida Administrative Code. A "level of service" for a road is the quantification of the quality of travel on the road expressed by letter grades rating from an optimal operating condition of "A" to a rating of unstable operational conditions of "F". Local governments are required by Section 380.06(14), Florida Statutes, to insure that a development is consistent with its comprehensive plan. Therefore, it must insure that a DRI is consistent with the levels of service contained therein. See also Section 163.3194, Florida Statutes. The Florida Department of Transportation has also been specifically authorized to establish levels of service for state roads. Sections 334.044(10) and 336.45, Florida Statutes. The Department of Transportation has adopted Chapter 14-94, Florida Administrative Code, establishing levels of service for its use. The Department of Community Affairs has required that levels of service contained in local comprehensive plans be compatible with Department of Transportation levels of service "to the maximum extent feasible". Rule 9J- 5.0055(1)(d), Florida Administrative Code. The Legislature has not specifically required or authorized regional planning councils to adopt levels of service. Nor has the Legislature specifically prohibited regional planning councils from adopting levels of service. The City's and Pasco's Comprehensive Plans. Pasco's comprehensive plan has been adopted and in compliance since June, 1989. In its comprehensive plan, Pasco has included levels of service for State roads which are compatible with those established by the Department of Transportation. Pasco uses the levels of service contained in its comprehensive plan to review DRI applications. The City adopted its comprehensive plan by Ordinance No. 89-167, in July, 1989. The City's comprehensive plan has been found to be in compliance with Chapter 163, Florida Statutes. The City's comprehensive plan contains transportation levels of service in its Traffic Circulation Element. The City uses the levels of service contained in its comprehensive plan to review DRI applications. The Challenged Rule. Pursuant to Section 186.507(1), Florida Statutes, TBRPC is required to include in its comprehensive regional policy plan regional issues that may be used in its review of DRI applications and the criteria TBRPC intends to rely on in its review. As part of its comprehensive regional policy plan, TBRPC has enacted Policy 20.11.1 of Goal 20 of the Future Of The Region, A Comprehensive Regional Policy Plan for the Tampa Bay Region, as Rule 29H-9.002, Florida Administrative Code. Notice of the Challenged Rule was published in the Florida Administrative Weekly on July 24, 1992. The Challenged Rule was approved by TBRPC on September 14, 1992, and it was filed for adoption on October 12, 1992. The Challenged Rule provides: Development of Regional Impact (DRIs) shall be required to analyze project impacts and mitigate to an appropriate peak hour, peak season operating Level of Service (LOS) on regional roads. The level of service standards for DRI's within the Tampa Bay regional shall be: Rural Roads (those not included - C in an urbanized or urbanizing area or a TCMA Within designated CBDs - E Within designated Regional - E Activity Centers Within Transportation Concurrency - as Management Areas (TCMA) established pursuant to Sec. 9J-5.0057 Constrained or Backlogged - maintain Facilities existing V/C (Volume to Capacity) All other regional roadways - D If the affected local government(s) has more stringent standards, those standards will apply. TBRPC adopted the Challenged Rule to fulfill its responsibility to include the criteria for transportation impacts to be used in its DRI review in its comprehensive regional policy plan. TBRPC has been using levels of service for review of transportation impacts of DRIs since 1975. There are levels of service contained in the comprehensive plans of the City and Pasco which are different than some of the levels of service contained in the Challenged Rule. The Challenged Rule provides that the levels of service contained therein are to be used by TBRPC in its review of DRI applications except to the extent that a level of service contained in the local government's comprehensive plan may be more stringent. To the extent that a level of service in the Challenged Rule is more stringent, however, TBRPC intends to recommend to the local government the use of its more stringent level of service. Ultimately, if the local government decides to use a less stringent level of service contained in its comprehensive plan and its decision is appealed, FLWAC will be required to exercise its authority to determine which level of service is consistent with Florida law. The Challenged Rule does not require that local governments accept the levels of service created therein. The Challenged Rule establishes the levels of service that the TBRPC will use in its review and comment on DRI applications. The Challenged Rule also puts developers on notice of the levels of service that TBRPC will base its review of DRI applications on. While a local government must consider the comments of TBRPC, the Challenged Rule does nothing to change the fact that it is up to the local government, after consideration of its comprehensive plan, the State comprehensive plan and the comments of the TBRPC to make the ultimate decision as to whether a DRI application is consistent with State law. Local governments are not required to accept the levels of service contained in the Challenged Rule. Nor is TBRPC, in fulfilling its responsibility to review DRI applications, required by law to only apply levels of service established by local governments in their comprehensive plan. If a local government decides to apply a more strict level of service contained in the Challenged Rule as a result of a comment from TBRPC or as a result of an appeal to FLWAC, the costs associated with the DRI to the local government, including Pasco and the City, could be increased in order to achieve and maintain the higher level of service. Rule 9J-2.0255, Florida Administrative Code. Pursuant to the authority of Section 380.06(23)(a), Florida Statutes, the Department of Community Affairs adopted Rule 9J-2.0255, Florida Administrative Code. Rule 9J-2.0255, Florida Administrative Code, sets out the Department of Community Affairs' policy concerning its role in the review of DRI applications. Rule 9J-2.0255, Florida Administrative Code, establishes the "minimum standards by which the Department will evaluate transportation conditions in development orders for developments of regional impact " As currently in effect, Rule 9J-2.0255, Florida Administrative Code, specifically provides that the Department of Community Affairs, in evaluating a DRI application, will look to the "policies of the local comprehensive plan and Chapter 80 . . ." if a local comprehensive plan is in effect and to the "transportation conditions pursuant to 9J-5, F.A.C., and Chapter 380 . . . " if no local comprehensive plan is in effect. Rule 9J-2.0255, Florida Administrative Code, is limited to Department of Community Affairs' evaluations of DRI applications. The Rule does not specify that regional planning councils must utilize the Rule or local government comprehensive plans in their review of DRI applications. The fact that Rule 9J-2.0255, Florida Administrative Code, provides that, after a local comprehensive plan has been adopted and found to be in compliance, the levels of service contained therein will be used by the Department of Community Affairs for its purposes does not cause levels of service established by TBRPC for its purposes to be inconsistent with Rule 9J- 2.0255, Florida Administrative Code. The standards established in Rule 9J-2.0255, Florida Administrative Code, are only designated as "minimum" standards. Nothing in the Challenged Rule requires the use of any standard less that those "minimum" standards even for purposes of TBRPC's review of DRI applications. The Challenged Rule even specifically provides that, to the extent that a level of service contained in a local government's comprehensive plan is more stringent than that contained in the Challenged Rule, that level of service will be applied by TBRPC. When originally adopted in January, 1987, Rule 9J-2.0255, Florida Administrative Code, provided specific transportation levels of service which the Department of Community Affairs intended to use until comprehensive plans containing levels of service were adopted by local governments. The Rule provided, however, that it was not intended to "limit the ability of the regional planning councils and local governments to impose more stringent mitigation measures than those delineated in this rule." Rule 9J-2.0255(8), Florida Administrative Code. This provision is no longer effective. The original rule also did not specifically indicate that levels of service contained in local government comprehensive plans were to be used by the Department of Community Affairs as it now provides. While there was testimony during the final hearing of this matter that the use of different levels of service by TBRPC and the City or Pasco will result in "inconsistent" reviews of DRI applications, there is nothing in Florida Statutes or the Department of Community Affairs' rules that requires consistency in reviews. There was also testimony that such differences will "not promote efficient DRI review." If the Legislature believes the consideration by the TBRPC and local governments of different levels of service in reaching a decision on a DRI application is "inefficient", it has not made its belief clear in Florida Statutes. If the Legislature wants all of the various agencies involved in DRI review to "not disagree" in order to have "efficient" DRI reviews, it must specifically so provide. The Department of Community Affairs reviewed the Challenged Rule. During its review concern was expressed by the then Secretary of the Department of Community Affairs about the inclusion in the Challenged Rule of levels of service. TBRPC was urged "to adopt standards and methodologies for reviewing DRIs that are consistent with those used by the Department of Community Affairs." TBRPC was not, however, told that the use of levels of service consistent with local government comprehensive plans was required by Department of Community Affairs' rules or that the failure of TBRPC to comply with the Department's suggestion would cause the Challenged Rule to be considered inconsistent with Department of Community Affairs' rules. Concern was also expressed during the review of the Challenged Rule to the Department of Community Affairs by the Department of Transportation about possible inconsistencies of the Challenged Rule's levels of service with the Department of Transportation's Rules. Concerns were also raised within the Department of Community Affairs by the Bureau of State Planning. Ultimately, after considering comments from those interested in the Challenged Rule and in spite of the fact that the Department of Community Affairs would prefer that the levels of service used by the Department of Community Affairs, local governments and regional planning councils be the same, the Department of Community Affairs did not conclude that the Challenged Rule was inconsistent with Rule 9J-2.0255, Florida Administrative Code, or any other statute or rule. I. Section 32, CS/CS/HB 2315. On April 4, 1993, Section 32, of CS/CS/HB 2315 (hereinafter referred to as "Section 32"), was enrolled. Section 32, if signed by the Governor, creates Section 186.507(14), and provides: (14) A regional planning council may not, in its strategic regional policy plan or by any other means, establish binding level-of- service standards for public facilities and services provided or regulated by local governments. This limitation shall not be construed to limit the authority of regional planning councils to propose objections, recommendations, or comments on local plans or plan amendments. Section 32 has not yet become law. Additionally, it Section 32 becomes law, it will not be effective until July 1, 1993. Section 32 was filed in this proceeding by BAGT on April 7, 1993, after the final hearing of these cases had closed. Section 32 was not available to the parties until immediately before it was filed by BAGT. Therefore, it could not have been raised at the time of the final hearing of these cases.
The Issue The issue before the Florida Land and Water Adjudicatory Commission (FLWAC) in this proceeding is whether to grant the Petition to Establish the Tesoro Community Development District (Petition), dated December 22, 2003, as supplemented and corrected. The local public hearing was for purposes of gathering information in anticipation of quasi-legislative rulemaking by FLWAC.2
Conclusions An Administrative Law Judge of the Division of Administrative Hearings has entered an Order in this proceeding relinquishing jurisdiction to the Department of Community Affairs (Department or DCA) for final action. A copy of the Order is attached to this Final Order as Exhibit A. Filed July 15, 2011 12:57 PM Division of Administrative Hearings FINAL ORDER NO. DCA 11-GM-139
Other Judicial Opinions REVIEW OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030(b) (1) (C) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT’S AGENCY CLERK, 2555 SHUMARD OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100, WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. FINAL ORDER NO. DCA 11-GM-139 CERTIFICATE OF FILING AND SERVICE I HEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Community Affairs, and that true and correct copies have been furnished by the manner indicated to each of the persons listed below on this [5 hoy of 2011. \ “ath bd bn fe Paula Ford Agency Clerk Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 By U.S. Mail The Honorable D. R. Alexander Administrative Law Judge Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 By Electronic Mail Mark Scruby, Esquire Clay County Attorney Lynette Norr, Esquire Post Office Box 1366 Assistant General Counsel Green Cove Springs, Florida Department of Community Affairs 32043 2555 Shumard Oak Boulevard Mark .Scruby€co.clay.fl.us Tallahassee, Florida 32399-2100 Lynette .Norr@dca.state.fl.us T.R. Hainline, Jr., Esquire Paige H. Johnston, Esquire 1301 Riverplace Boulevard, Suite 1500 Jacksonville, Florida 32207 thainline@rtlaw.com pjyohnston@rtlaw.com
