The Issue Whether Respondent, while serving as an appointed member of the Ocoee Planning and Zoning Commission, violated section 112.313(7)(a), Florida Statutes (2015)1/ by having a contractual relationship that conflicted with his official responsibilities; and, if so, the appropriate penalty.
Findings Of Fact At all times material to the complaint, Respondent served as an appointed member of the Ocoee P & Z Commission. Respondent is subject to the requirements of part III, chapter 112, Florida Statutes, the Code of Ethics for Public Officers and Employees, for his acts and omissions during his tenure on the P & Z Commission. As a member of the P & Z Commission, Respondent is subject to the “Ocoee Florida Land Development Code, Section 3, Planning and Zoning Commission [Land Development Code].” Section 3-2 of Land Development Code provides in part as follows: Establishment and Membership The Planning and Zoning Commission shall consist of nine (9) members appointed by the City Commission and one member appointed by the School Board of Orange County as a non- voting member. The member appointed by the School Board of Orange County shall attend those meetings at which the Planning and Zoning Commission considers comprehensive plan amendments and rezonings that would, if approved, increase residential density on the property that is the subject of the application. No member shall be an employee of the City of Ocoee and all members, except the member appointed by the School Board of Orange County, shall be residents of the City of Ocoee. When selecting members to the Planning and Zoning Commission, the City Commission shall attempt to select persons from different geographical areas within the City so as to create geographical diversity and representation. * * * E. Compliance with Laws The Planning and Zoning Commission, and its individual members, shall comply with all applicable laws relative to public bodies, including disclosure of interests and procedure[s] for refraining from participation [when] a conflict of interest exists. * * * G. Duties and Responsibilities To act as the Local Planning Agency (LPA) of the City of Ocoee, pursuant to Section 163.3174, Florida Statutes, and to prepare on its own initiative recommendations for amendments to the Comprehensive Plan of the City of Ocoee, including text and/or maps, and to forward such amendments to the City Commission for consideration. No such recommendation shall be made except after a public hearing held in accordance with State and local requirements. To review and make recommendations to the City Commission on applications for amendments to the Comprehensive Plan. No such recommendation shall be made except after a public hearing held in accordance with State and local requirements. To prepare on its own initiative recommendations for amendments to this Code, text and/or maps, and to forward such amendments to the City Commission for consideration. No such recommendation shall be made except after a public hearing held in accordance with State and local requirements. To review and make recommendations to the City Commission on applications for amendments to this Code, including applications for annexation or change of zoning. Pursuant to Section 163.3174(4)(c), Florida Statutes, the Planning and Zoning Commission shall also have the responsibility to review and make a finding as to the consistency of the proposed land development regulation with the adopted Comprehensive Plan and to report such finding to the City Commission. No such recommendation shall be made except after a public hearing held in accordance with State and local requirements. To review and make recommendations to the City Commission on applications for various development approvals or permits as provided within this Code, including, but not limited to Planned Unit Developments (PUD), special exceptions, subdivisions, and any other application for which the City Commission requests a report and/or recommendation. Where a public hearing is required by the applicable procedural section, no such recommendation shall be made except after a public hearing held in accordance with State and local requirements. To act in an advisory capacity to the City Commission on land use and land development issues and to make such studies and to conduct such investigations as may be requested from time to time by the City Commission. To review zoning of newly annexed lands when it represents an increase in intensity of use or a conflict with the Comprehensive Plan pursuant to requirements of State law and City ordinance. In addition to serving on the P & Z Commission, Respondent buys and sells commercial real estate. Respondent is a manager and shareholder in W.O.R.Y. INVESTORS, LLC (WORY), an entity that is also in the business of buying and selling commercial real estate. Respondent, in his individual capacity, owned approximately four acres, which abutted six acres owned by WORY. Both properties have an address on West Road in Ocoee, Florida, and will be referred to collectively herein as the “West Road property.” The Contract On or about November 11, 2015, Respondent, in his individual capacity, and as manager for WORY, executed an “Agreement of Sale” wherein the West Road property was to be purchased by Charter Schools Development Group, LLC (buyer), for $1,890,540. According to the Agreement of Sale, the buyer wanted to “develop and construct on the Property a K-8 public charter school.” The Agreement of Sale contained a number of contingencies, referred to in the contract as “Buyer Required Approvals,” that Respondent was required to satisfy prior to finalization of the sale of the West Road property. Paragraph six of the Agreement to Sale sets forth a number of the pre-sale contingencies imposed on Respondent, and the same provides as follows: 6. Development The Buyer intends to develop and construct on the Property a K-8 public charter school and adjacent commercial development acceptable to Buyer consisting of buildings and other improvements including, but not limited to recreation fields, related landscaping, open space, storm water, and appropriate parking (the "Project"). Buyer's obligation to complete the purchase of the Property from Seller in accordance with the terms of this Agreement is contingent upon the satisfaction of each of the following conditions with regard to the Property (each of which may be waived in whole or in part in writing by Buyer): Buyer has obtained final, unappealed and unappealable approvals from all necessary governmental authorities (including governmental agencies), for zoning, utilities and any other approvals (including necessary parking requirements) Buyer deems necessary, in its sole discretion, permitting the construction and use of the improvements comprising the Project, including but not limited to any required special exception. Buyer has obtained final, unappealed and unappealable approvals and/or permits required by any and all governmental authorities (including governmental agencies) so that the Property shall have immediate and adequate access to water, sewer and all other utilities in accordance with the final approved site development plan. Buyer has obtained final, unappealed and unappealable approvals and/or permits required by any and all governmental authorities (including governmental agencies) for storm water management; including easements and agreements for constructing and maintaining storm water basins; all wetlands studies and approvals in such form that wetlands, if any, shall not preclude construction of roads, utilities, storm water management facilities, any other required improvements for erection of buildings on the Property. Buyer has obtained all permits and approvals, and all conditions thereof shall have been satisfied, so as to allow for recording of the final plan and issuance of building permits subject only to satisfaction of the following requirements by Buyer at or after Closing (i) submission of construction drawings in accordance with applicable law, (ii) execution by the Buyer of the necessary development agreements, (iii) execution and funding by Buyer of the necessary escrow agreements for municipal improvements, and sewer and water improvements, and (iv) payment by the Buyer of all municipal fees and charges associated therewith. Subject to Seller's obligation set forth in Section 6(f) below, Buyer has obtained any and all other easements, approvals and/or permits that may be necessary to construct and use the improvements comprising the Project. Buyer shall obtain, at no additional cost to Seller, all easements and roads that in Buyer's sole reasonable discretion are necessary for property access, utilities and signage to the Property in accordance with Buyer's final approved site development plan. The items referred to in subsections 6(a) through 6(f) hereof shall hereafter be referred to as the "Buyer Required Approvals." After the end of the Inspection Period, Buyer shall diligently proceed with the filing of all applications necessary for obtaining the Buyer Required Approvals. Seller agrees, at no expense to Seller, to cooperate with buyer in connection with the Buyer Required Approvals to the extent of signing all applications necessary for obtaining the buyer Required Approvals and appearing and testifying at the various hearings. Seller's cooperation as aforesaid shall not entitle Seller to any additional compensation. All permit fees, studies, deposit and investigation costs incurred in connection with the Buyer Required Approvals shall be the sole responsibility of buyer and buyer agrees to affirmatively use its good faith efforts to obtain all of the Buyer Required Approvals without delay and as expeditiously as reasonably possible. Seller hereby grants to Buyer a power of attorney to file, on Seller's behalf, all applications related to the Buyer Required Approvals; provided, however, that the Land shall not be rezoned prior to the expiration of the Inspection Period. Seller acknowledges that buyer will likely contact, meet with and/or obtain consents for the Project from neighboring property owners during the Inspection Period and in the process of obtaining the Buyer Required Approvals. (emphasis added). None of the provisions of paragraph six of the Agreement of Sale were waived by either party. Paragraph 15(b) of the Agreement of Sale provides as follows: (b) If Seller shall violate or fail (in breach of its obligations hereunder) to fulfill or perform any of the terms, conditions or undertaking set forth in this Agreement within ten (10) days written notice from Buyer or (five (5) days written notice in the event of a monetary default), Buyer shall be entitled to: (i) terminate this Agreement and receive the return of the Deposit and reimbursement of Buyer's documented out-of-pocket due diligence expenses up to $15,000.00, and, thereupon, the parties hereto will be released and relieved from all provisions of this Agreement, or (ii) pursue specific performance. Paragraph 17 of the Agreement of Sale states that “[b]uyer and Seller agree to cooperate with each other and to take such further actions as may be requested by the other in order to facilitate the timely purchase and sale of the Property.” Paragraphs 6, 15(b) and 17 of the Agreement of Sale obligated Respondent to take all steps necessary, including “appearing and testifying at the various hearings,” for ensuring that the “Buyer Required Approvals” were satisfied, which in turn would allow Respondent to receive his share of the purchase price for the West Road property. Section 112.311(1), provides in part that “[i]t is essential to the proper conduct and operation of government that public officials be independent and impartial and that public office not be used for private gain other than the remuneration provided by law.” Rezoning and Respondent’s Role In order for a charter school to be built on the West Road property, it was necessary to rezone the existing planned unit development land use plan covering the property. Ocoee City Planner Michael Rumer testified that there are two types of rezoning. There is a straight rezoning to a zoning category listed in the land development code and there is rezoning to a planned unit development (PUD). Both types of zoning use the following process: an application is filed; then there is a review process by a development review committee, which is a staff level review; that review is forwarded to the P & Z Commission for a recommendation; and then it goes to the Ocoee City Commission for two readings of an ordinance for rezoning if the rezoning is approved. This is the process that was followed for the West Road property PUD. On February 9, 2016, the issue of whether to recommend rezoning of the West Road property to allow for the charter school referenced in the Agreement of Sale came before the P & Z Commission. Respondent was present for the meeting. During the meeting, Respondent spoke in favor of the rezoning request for the West Road property. When a fellow commissioner made a request for more time to review the rezoning issue, Respondent opposed the delay by stating “[i]f you don't give them a go now, you basically kill the deal because it's a time sensitive thing that they want the kids in there in August.” During the meeting, the commissioners struggled with whether to recommend denial of the West Road property zoning request, recommend approval of the request without conditions, or recommend approval of the request with conditions. After two previous motions regarding the zoning request died for lack of a “second,” a third motion was made wherein approval was recommended “with the condition that we’re all going to look at the traffic movement with the final site plan design.” When it appeared as though this motion was also likely to fail for lack of a “second,” Respondent encouraged the chairman of the P & Z Commission to voice a “second” for the motion since Respondent was unable to do so.2/ Respondent’s actions during the meeting of February 9, 2016, were consistent with his obligations under the Agreement of Sale to assist the buyer of the West Road property with securing the “Buyer Required Approvals.”
Recommendation Based on the Findings of Facts and Conclusions of Law, it is RECOMMENDED that a civil penalty of $10,000.00 be imposed against Respondent due to his violation of section 112.313(7)(a) and that Respondent also be publicly censured and reprimanded. DONE AND ENTERED this 10th day of April, 2017, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of April, 2017.
The Issue The sole issue to be addressed is whether the Petition to contract the Gateway Services District meets the applicable criteria set forth in Chapter 190, Florida Statutes, and Chapter 42-1, Florida Administrative Code.
Findings Of Fact Overview The Petitioner is seeking the adoption of a rule by the Commission to contract a community development district currently comprised of approximately 5,474 acres located within the boundaries of unincorporated Lee County, Florida and the incorporated City of Fort Myers, Florida. The name for the District, after contraction, will be the Gateway Services Community Development District. At the time the Petition was filed, the District consisted of approximately 5,324 acres. However, on July 29, 2002, a Rule Amendment adopted by the Commission, and filed with the Secretary of State became effective, expanding the District to approximately 5,474 acres. The Petitioner seeks to contract the District by approximately 973 acres. The District, after contraction, will encompass approximately 4,501 acres. All of the property proposed to be contracted out of the District is located within the City of Fort Myers, Florida. The sole purpose of this proceeding was to consider the contraction of the District as proposed by the Petitioner. Summary of Evidence and Testimony Whether all statements contained within the Petition have been found to be true and correct. Petitioner's Composite Exhibit 9 was identified for the record as a copy of the Petition and its exhibits as filed with the Commission, dated January 2002; the Addendum to the Petition, dated March 25, 2002; and the Second Addendum to the Petition, dated July 16, 2002; and the Third Addendum to the Petition, dated July 25, 2002. Ward testified that he had reviewed the contents of the Petition and Exhibits as supplemented and amended by the addenda to the Petition. Ward testified that the Petition and exhibits as supplemented and amended by the addenda, are true and correct to the best of his knowledge. Tilton testified that he had reviewed Exhibits 1, 2, and 3 of the Petition. Exhibit 1 is the metes and bounds legal description and sketch of the existing District boundaries. Exhibit 2 is the legal description and sketch of the contraction parcels. Exhibit 3 is the amended legal description and sketch of the District, after contraction. Tilton testified that the legal description of the existing CDD boundaries was true and correct, and would be amended by a proposed Rule Amendment filed with the Secretary of State July 9, 2002, and effective July 29, 2002. Tilton testified that Exhibit 2 truly and accurately depicted the legal description of the property proposed for contraction from the District. A Third Addendum to the Petition, filed with the Department of Administrative Hearings on July 29, 2002, identified a scrivener's error in the proposed Rule Amendment filed on July 9, 2002, and included a legal description and sketch of the land within the District, after the contraction. This legal description and sketch amends and replaces Exhibit 3 of the Petition. This legal description was certified as true and accurate by CES Engineering. Garland testified that his office had prepared Exhibit 7 to the Petition, the Statement of Estimated Regulatory Costs (SERC). Garland also testified the SERC included with the Petition was true and correct to the best of his knowledge. Gnagey testified that at the time of the hearing, Worthington Holdings, Inc. was the owner of all of the lands to be contracted out of the District. Gnagey testified that a portion of the contraction property was under contract for sale. A consent and joinder to the Petition to Contract, executed by the contract purchaser was placed into the record as Exhibit 3. The Petition does not contain the written consent of the owners of all real property to be included in the new District after contraction; nor was there any documentation or other evidence demonstrating that either the District or those giving their written consent to the contraction have control by deed, trust agreement, contract, or option of one-hundred percent (100%) of the real property to be included in the new District, after contraction. See Conclusion of Law 65. Based upon the foregoing, the Petition and its exhibits, as amended and supplemented by the addenda to the Petition, are true and correct. Whether the contraction of the District is inconsistent with any applicable element or portion of the State Comprehensive Plan or of the effective local government comprehensive plan. Ward addressed whether the contraction of the District was inconsistent in any way with the State Comprehensive Plan, Chapter 187, Florida Statutes. Ward also reviewed the contraction of the District, in light of the local government comprehensive plans. Ward testified that the District would continue to assist the local government in providing infrastructure services required pursuant to its locally adopted comprehensive plan. Furthermore, since the State Comprehensive Plan requires local governments to provide infrastructure in accordance with locally adopted comprehensive plans, the District would continue to function and assist in meeting this objective of Chapter 187. Resolution No. 2002-11, adopted by the City Council of the City of Fort Myers, Florida, was introduced into evidence as Petitioner's Exhibit 5. Pursuant to this Resolution, the City Council made a determination that after the contraction, the District is not inconsistent with applicable elements or portions of the State Comprehensive Plan or the City of Fort Myers local comprehensive plan. The Florida Department of Community Affairs reviewed the Petition and provided a letter dated April 16, 2002, which was placed into Evidence as Petitioner's Exhibit 7. The letter states that the Petition A "is consistent with the goals, objectives and policies of Lee County's 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, the Lee County Comprehensive Plan, or City of Fort Myers Comprehensive Plan. Whether the area of land within the district, after contraction, 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 Ward and Tilton. The lands that comprise the District, after contraction, will consist of approximately 4,501 acres, located within the borders of unincorporated Lee County, and the incorporated City of Fort Myers. From a management perspective, the District, after contraction, will continue to be sufficiently sized, compact and contiguous to be developed as a functional interrelated community. The property remaining within the District will continue to be amenable to receiving services through a community development district. From an engineering perspective, the District, after contraction, will still be larger than other community development districts. It is contiguous and relatively compact. The land remaining within the District can be well- served by water management facilities, water and sewer and irrigation, roads lighting, landscaping and parks provided by the District. From a development planning perspective, the owner of the property, which will be contracted out of the District, intends to market the contraction property for development as three separate, stand-alone communities. This property will be developed independently from the property remaining within the District. Its utility needs will be serviced by the City of Fort Myers. From development planning, 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 district, after contraction, is the best alternative available for delivering community development services and facilities to the area that will be served by the contracted district. The District currently provides certain infrastructure improvements and facilities to the property which will remain in the District. Currently, no services or facilities are provided by the District to the property to be contracted out of the District. Ward, Tilton, and Garland testified concerning whether the District, as contracted, is the best alternative available for delivering community development services and facilities to the area remaining in the District. Ward testified that since the 1980's, the District has provided and maintained infrastructure which services the existing residents of the District, and is also available to service future residents of the District. The District is responsible for financing, operating and maintaining this infrastructure. Based upon its historical track record, and its current activities, the District will continue to serve these purposes. Tilton testified that, from an engineering perspective, the District is an excellent alternative for providing community services and facilities to the property remaining in the District because it provides a higher level of service than would be afforded by Lee County or the City of Fort Myers. This higher level of service meets the desire of the residents within the District. Garland testified that, from an economic perspective, the District as contracted, will still consist of approximately 5,799 equivalent residential units. There will be no financial impact to the landowners remaining in the District because neither the capital assessments nor the operations and maintenance assessments will be affected by the contraction. Currently, the contraction parcel is not taking any of the load for capital assessments or operations and maintenance assessments. Garland also testified that the contraction property is geographically closer to infrastructure facilities available from the City of Fort Myers, than it is to District facilities. Therefore, the District is not the best alternative for providing this infrastructure to the contraction property. From economic, engineering, and special district management perspectives, the District, after contraction, is the best alternative available for delivering community development services and facilities to the area that will continue to be served by the District. Whether the community development services and facilities of the district, as contracted, will be incompatible with the capacity and uses of existing local and regional community development services and facilities. The services and facilities which will continue 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 boundaries, as contracted, 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 remain within the District. Ward, Tilton, and Garland testified concerning whether the community development services and facilities of the district, as contracted, would be incompatible with the capacity and uses of existing local and regional community development services and facilities. Ward testified that the District provides services and facilities which compliment the general purpose local governments’ services and facilities. For example, the District has constructed drainage facilities. These services address the requirements for infrastructure of the local government. After contraction, the District will continue to provide these infrastructure services. Tilton testified that the services and facilities provided by the District work very well in concert with the adjacent facilities of the general purpose local government. The roadways, utilities, and water management facilities constructed by the District are integrated into the overall system of the adjacent areas. From a management perspective and an engineering perspective, the facilities and services to be provided by the District, after the contraction, will not be incompatible with the existing local and regional community development services and facilities. Whether the area that will be served by the district, after contraction, is amenable to separate special district government. As cited previously, from 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 community to be included in the District, after contraction, will continue to require basic infrastructure systems. A determination was made when the District was formed, that the District could best provide these services. This determination will not change as a result of the contraction. From engineering, economic and management perspectives, the area that will be served by the amended District is amenable to separate special-district government. Other requirements imposed by statute or rule. Chapter 190, Florida Statutes, and Chapter 42-1, Florida Administrative Code, impose specific requirements regarding the Petition and other information to be submitted to the Commission. Elements of the Petition The Commission has certified that the Petition to Contract the Gateway Services District meets all of the required elements of Section 190.005(1)(a), Florida Statutes. Statement of Estimated Regulatory Costs (SERC) The SERC contains an estimate of the costs and benefits to all persons directly affected by the proposed rule to contract the District--the State of Florida and its citizens, the County and its citizens, the City and its citizens, the landowners within the District after contraction, and the Petitioner. Beyond administrative costs related to rule adoption, the State and its citizens, are not anticipated to incur any costs from contracting the District. Administrative costs incurred by Lee County and the City of Fort Myers related to this Petition are minimal and should be offset by the filing fees paid by the Petitioner. Landowners remaining within the District will continue to pay non-ad valorem or special assessments for certain facilities. The contraction of District will have no impact on the level of capital assessments or operations and maintenance assessments paid by residents remaining in the District. Benefits to landowners in the District will continue to be a higher level of public services and amenities than might otherwise be available, construction, operation and maintenance 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. 45. Sections 190.046(1)(g) and 190.005(1)(a), Florida Statutes, require the Petition to include a SERC which meets the requirements of Section 120.541, Florida Statutes. The Petition contains a SERC. It meets the requirements of Section 120.541, Florida Statutes. Other Requirements 46. Sections 190.046(1)(g) and 190.005(1)(d), Florida Statutes, require the Petitioner to publish notice of the local public hearing in a newspaper of general circulation in Lee County for four consecutive weeks prior to the hearing. The notice was published in The News-Press, a newspaper of general circulation in Lee County for four consecutive weeks, on June 18, 2002, June 25, 2002, July 2, 2002, and July 9, 2002. The Affidavit of Publication was placed into evidence as Petitioner’s Exhibit 4. Lee County Support for Establishment Pursuant to the requirements of Sections 190.046(1)(g) and 190.005(1)(b), Florida Statutes, Petitioner filed a copy of the Petition with the City of Fort Myers and Lee County prior to filing the Petition with the Commission. As permitted by Sections 190.046 and 190.005(1)(c), Florida Statutes, the City Council of the City of Fort Myers held a public hearing on March 4, 2002, to consider the contraction of the Gateway Services District. At the conclusion of its public hearing on March 4, 2002, the City Council adopted Resolution 2002-11 expressing support for the Commission to promulgate a rule contracting the Gateway Services District. The City of Fort Myers City Council Resolution specifically found that all six (6) of the statutory factors for evaluating the contraction of community development districts found in Section 190.005(1)(e), Florida Statutes, had been met by the Petitioner in this matter. As permitted by Sections 190.046 and 190.005(1)(c), Florida Statutes, the Board of County Commissioners of Lee County held a public hearing on June 25, 2002, to consider the contraction of the Gateway Services District. At the conclusion of the public hearing on June 25, 2002, the Board of County Commissioners of Lee County adopted Resolution No.02-06-43, expressing support for the Commission to promulgate a rule contracting the Gateway Services District.
Recommendation Based upon the foregoing 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 190 and 120, Florida Statutes, and Chapter 42-1, Florida Administrative Code, contract the Gateway Services District as requested by the Petitioner by formal adoption of the proposed Rule Amendment attached to this Report as Exhibit C. DONE AND ORDERED this 9th day of August, 2002, in Tallahassee, Leon County, Florida. ___________________________________ CHARLES A. STAMPELOS 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) 92106847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of August, 2002. COPIES FURNISHED TO: Erin McCormick Larrinaga. Esquire Fowler, White, Boggs, Banker, P.A. 501 East Kennedy Boulevard Suite 1700 Tampa, Florida 33602 Gregory Munson, Esquire Office of the Governor The Capitol, Room 209 Tallahassee, Florida 32399 Charles Canady, General Counsel Florida Land and Water Adjudicatory Commission Office of the Governor The Capitol, Room 209 Tallahassee, Florida 32399 Donna Arduin, Secretary Florida Land and Water Adjudicatory Commission Office of the Governor The Capitol, Room 2105 Tallahassee, Florida 32399 Barbara Leighty, Clerk Growth Management and Strategic Planning The Capitol, Room 2105 Tallahassee, Florida 32399 Exhibit A Petitioner’s Witnesses at Public Hearing John Gnagey The Worthington Group 14291 Metro Parkway, Building 1300 Fort Myers, Florida 33912 James P. Ward Severn Trent Environmental Services, Inc. 210 N. University Drive, Suite 702 Coral Gables, Florida 33071 Andrew D. Tilton Johnson Engineering, Inc. 2158 Johnson Street Fort Myers, Florida 33901 Carey Garland Fishkind & Associates, Inc. 11869 High Tech Avenue Orlando, Florida 32817 Exhibit B List of Petitioner’s Exhibits Exhibit Description Exhibit 1: Memorandum from Greg Munson, Staff Attorney for the Florida Land and Water Adjudicatory Commission to Barbara Leighty, Clerk for the Florida Land and Water Adjudicatory Commission, dated March 12, 2002 Exhibit 2: Sketch depicting Gateway Services District Boundaries (Parcels marked “A” constitute the Contraction Parcels which Petition seeks to have contracted from the Gateway Services District) Exhibit 3: Consent and Joinder to Petition to Contract Gateway Services District, executed by Pulte Home Corporation on July 16, 2002 Exhibit 4: News-Press Affidavit of Publication, dated July 9, 2002 Exhibit 5: Certified Copy of Resolution No. 2002-11, approved by the City Council of the City of Fort Myers on March 4, 2002 Exhibit 6: Certified Copy of Resolution No. 02-06-43, approved by the Board of County Commissioners of Lee County, Florida on June 25, 2002 Exhibit 7: Letter from the Florida Department of Community Affairs to Ms. Donna Arduin, Secretary, Florida Land and Water Adjudicatory Commission, dated April 16, 2002 Exhibit 8: Notice of Receipt of Petition, published by the Florida Land and Water Adjudicatory Commission in the Florida Administrative Weekly on May 17, 2002 Composite Exhibit 9: Petition to Contract Gateway Services District, dated January, 2002 (includes City of Ft. Myers Comprehensive Plan and Lee County Comprehensive Plan); Addendum to the Petition to Contract Gateway Services District, dated March 25, 2002; Second Addendum to the Petition to Contract Gateway Services District, dated July 16, 2002; and Third Addendum to the Petition to Contract Gateway Services District, dated July 25, 2002. Exhibit C THE FULL TEXT OF THE PROPOSED RULE AMENDMENT IS: 42F-1.002 Boundary. The boundaries of the district are as follows: A tract or parcel of land lying Section 35, Township 44 South, Range 25 East and in Sections 1, 2, 3, 4, 10, 11 and 12, Township 45 South, Range 25 East; Section 31, Township 44 South, Range 26 East and in Sections 5, 6, 7, 8, 17, 18 and 19, Township 45 South, Range 26 East, Lee County, Florida, more particularly described as follows: Beginning at the southwest corner of said Section 35 run N 00__47' 42" W along the west line of the southwest quarter (SW-3) of said Section for 2643.18 feet to the quarter corner on the west line of said section; thence run N 00_ 43' 47" W along the west line of the northwest quarter (NW-3) of said Section for 1361.42 feet; thence run N 35__45' 29" E for 947.82 feet; thence run N 56__15' 44" E for 690.61 feet to the south line of the Colonial Boulevard right-of-way (State Road 884) (250 feet wide); thence run S 89__38' 27" E along said south line for 2763.96 feet to an intersection with the west line of the northeast quarter (NE-1/4) of the northeast quarter (NE-1/4) of said Section; thence run S 02__16' 01" E along said west line for 1,168.38 feet to the southwest corner of said fraction; thence run N 89_ 54' 24" E along the south line of said fraction for 1324.86 feet to the southeast corner of said fraction; thence run S 03__20' 25" E for 1284.37 feet to the quarter corner on the east line of said Section; thence run S 00__01' 59" E along said east line for 2635.65 feet to the northwest corner of said Section 1; thence run N 89__28' 42" E along the north line of the northwest quarter (NW-1/4) of said Section 1 for 2,642.98 feet to the quarter corner on said north line; thence run S 89__57' 06" E along the north line of the northeast quarter (NE-1/4) of said Section 1 for 2523.38 feet to the northeast corner of said Section; thence run N 00__57' 01" W along the west line of said Section 31 for 2644.12 feet to the quarter corner on said west line; thence run N 00__35' 02" W along said west line of said Section 31 for 1705.47 feet to an intersection with the southwesterly line of Immokalee Road (State Road 82) (200 feet wide); thence run S 46__07' 29" E along said southwesterly line for 6215.51 feet to an intersection with the south line of said Section 31; thence continue S 46__07' 29" E along said southwesterly line for 1227.27 feet to an intersection with a line common to said Sections 5 and 6; thence continue S 46__07' 29" E along said southwesterly line for 1535.36 feet to a point of curvature; thence run Southeasterly along said southwesterly line along the arc of a curve to the left of radius 5824.88 feet (delta 18_ 13' 21") (chord bearing S 55__14' 10" E) (chord 1844.76 feet) for 1852.55 feet to a point of tangency; thence continue along said southwesterly line S 64__20' 50" E for 22.21 feet to an intersection with the east line of the west half (W-1/2) of said Section 5; thence run S 00__06' 33" E along said east line for 2271.81 feet to the quarter corner common to said Sections 5 and 8; thence run S 01__02' 00" E along the east line of the west half (W-1/2) of said Section 8 for 3,028.35 feet; thence run N 89__33' 57" E for 605.03 feet; thence run S 01__02' 00" E for 1800.10 feet; thence run S 89__33' 57" W for 605.03 feet; thence run S 01__02' 00" E for 500.03 feet to the quarter corner common to said Sections 8 and 17; thence run S 01__00' 12" E along the east line of the northwest quarter (NW-1/4) of said Section 17 for 926.76 feet to an intersection with the northeasterly line of a Florida Power and Light Company substation site as described in deed recorded in Official Record Book 1606 at Page 1286 of the Lee County Records; thence run N 37__57' 04" W along said northeasterly line for 361.70 feet; thence run S 52__02' 56" W along the northwesterly line of said Site for 361.70 feet; thence run S 37__57' 04" E along the southwesterly line of said Site for 741.48 feet to an intersection with the northwesterly line of Daniels Road Extension (200 feet wide) as described in deed recorded at Official Record Book 1644 at Page 1739 of the Lee County Records; thence run N 68__38' 13" E along said northwesterly line for 64.84 feet to an intersection with said easterly line of said northwest quarter (NW-1/4) of said Section 17; thence run S 01__00' 12" E along said east line for 1238.52 feet to the southeast corner of said fraction; thence run S 89__30' 38" W along the south line of said fraction and the north line of the Southwest Florida Regional Airport for 2110.83 feet to an intersection with the southeasterly line of said Daniels Road Extension; thence run S 54__00' 05" W through said Sections 17, 18 and 19 along the southeasterly line of a road right-of-way (200 feet wide) for 7032.17 feet to an intersection with the west line of said Section 19; thence run N 00__55' 36" W along said west line for 1,477.45 feet to the northwest corner of said Section; thence run N 00_ 54' 13" W along the west line of the southwest quarter (SW-1/4) of said Section 18 for 2,643.95 feet to the quarter corner on said west line; thence run N 00_ 39' 39" W along the west line of the northwest quarter (NW- 1/4) of said Section 19 for 2,674.35 feet to the northwest corner of said Section; thence run N 00_ 57' 26" W along the west line of the southwest quarter (SW-1/4) of said Section 7 for 2,645.34 feet to the quarter corner common to said Sections 7 and 12; thence run S 89_ 55' 12" W along the south line of the northeast quarter (NE-1/4) of said Section 12 for 2,524.67 feet to the west line of the east 2,524.14 feet of said northeast quarter (NE-1/4); thence run N 01_ 05' 33" W along said west line for 2,646.07 feet to the south line of said Section 1; thence run S 89_ 56' 14" W along said south line for 2,663.19 feet to the southwest corner of said Section, passing through the quarter corner on the south line of said Section at 69.26 feet; thence run S 89__03' 50" W along the south line of said Section 2 for 2645.12 feet to the quarter corner on said south line; thence run S 00__08' 50" E line of the northwest quarter (NW-1/4) of said Section 11 for 2670.22 feet to the center of said Section; thence run S 88__33' 56" W along the south line of said northwest quarter (NW-1/4) for 2745.77 feet to the quarter corner on the west line of said Section 11; thence run S 89__29' 50" W along the south line of the northeast quarter (NE-1/4) of said Section 10 for 2546.16 feet to the center of said Section; thence run N 00__06' 58" W along the west line of said northeast quarter (NE-1/4) for 2668.79 feet to the quarter corner on the north line of said Section; thence run S 88__57' 32" W along the south line of said Section 3 for 2649.25 feet to the southwest corner of said Section; thence run S 88_ 54' 32" W along the south line of said Section 4 for 2059.99 feet to an intersection with the southeasterly line of the Six Mile Cypress Acquisition Area; thence run Northeasterly along said southeasterly line the following courses and distances: N 31__38' 21" E for 261.19 feet; N 01__23' 47" W for 277.78; N 37__53' 18" E for 246.16 feet; N 18_ 15' 00" E for 91.84 feet; N 56__35' 37" E for 169.92 feet; N 85__38' 45" E for 379.20 feet; N 70__16' 34" E for 105.12 feet; N 06__16' 12" E for 108.95 feet; N 89__11' 29" E for 322.80 feet; N 71_ 11' 39" E for 95.05 feet; N 55__29' 43" E for 156.24 feet; S 86__54' 42" E for 285.36 feet; N 55_ 11' 00" E for 58.82 feet; N 73__00' 08" E for 140.00 feet; N 54__05' 49" E for 115.77 feet; N 10_ 34' 05" E for 104.79 feet; N 24__05' 57" E for 100.09 feet; N 67__22' 01" E for 230.59 feet; S 85__03' 28" E for 211.24 feet; N 05__10' 02" E for 54.09 feet; N 27__24' 58" E for 106.63 feet; N 10__08' 05" E for 139.90 feet; N 44__41' 11" E for 147.83 feet; N 62__35' 02" W for 105.53 feet; N 23__59' 48" E for 476.74 feet; N 15__42' 08" E for 368.41 feet; N 20__55' 23" E for 222.23 feet; N 45__09' 19" E for 183.23 feet; N 31__07' 36" E for 305.01 feet; N 32__55' 08" E for 155.78 feet; N 17__03' 28" E for 110.45 feet; N 26__26' 47" E for 300.81 feet; N 18__42' 17" E for 150.86 feet; N 04__51' 19" W for 340.19 feet; N 12__09' 34" E for 251.79 feet; N 27__12' 34" E for 210.15 feet; N 14__53' 31" E for 323.53 feet and N 35__18' 42" E for 275.49 feet to an intersection with the north line of said Section 3; thence run N 88__37' 17" E along said north line for 530.84 feet to an intersection with the westerly line of State Road No. 93 (Interstate 75) (324 feet wide); thence run S 14_ 49' 52" E along said westerly line for 677.99 feet to an intersection with the east line of the northwest quarter (NW-1/4) of said Section 3; thence run S 00__49' 04" E along said east line for 1299.77 feet to the northwest corner of the west half (W-1/2) of the southwest quarter (SW-1/4) of the northeast quarter (NE-1/4) of said section; thence run N 88__12' 52" E along the north line of said fraction for 323.06 feet to an intersection with said westerly line of State Road No. 93; thence run S 14__49' 52" E along said westerly line for 2.67 feet to an intersection with the east line of said fraction ; thence run S 00__37' 05" E along said east line for 650.21 feet to the southeast corner of said fraction; thence run N 88__09' 46" E along the north line of the southeast quarter (SE-1/4) of said Section 3 for 2250.18 feet to the quarter corner common to said Sections 2 and 3; thence run N 00__47' 03" E along the west line of the northwest quarter (NW-1/4) of said Section 2 for 2605.26 feet to the Point of Beginning. Less and except all that part of the right-of-way for State Road No. 93 (Interstate 75) lying within the southeast quarter (SE-1/4) of Section 3 and within the northeast quarter (NE- 1/4) of Section 10, Township 45 South, Range 25 East, Lee County, Florida, as more particularly described in the petition for this rule. Containing 5,474 5324 acres, more or less. PARCEL "A" A TRACT OR PARCEL OF LAND LYING IN SECTION 35 TOWNSHIP 44 SOUTH, RANGE 25 EAST, SECTIONS 1, 2, 11 AND 12, TOWNSHIP 45 SOUTH, RANGE 25 EAST; SECTION 31, TOWNSHIP 44 SOUTH, RANGE 26 EAST AND IN SECTIONS 5, 6, 7, 8, 17, 18 AND 19, TOWNSHIP 45 SOUTH, RANGE 26 EAST, LEE COUNTY, FLORIDA, MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE SOUTHWEST CORNER OF SAID SECTION 35 RUN N 00?47'42" W ALONG THE WEST LINE OF THE SOUTHWEST QUARTER (SW 3) OF SAID SECTION FOR 2643.18 FEET TO THE QUARTER CORNER ON THE WEST LINE OF SAID SECTION; THENCE RUN N 00?43'47" W ALONG THE WEST LINE OF THE NORTHWEST QUARTER (NW 3) OF SAID SECTION FOR 1361.42 FEET; THENCE RUN N 35?45'29" E FOR 947.82 FEET; THENCE RUN N 56?15'44" E FOR 690.61 FEET TO THE SOUTH LINE OF THE COLONIAL BOULEVARD RIGHT-OF-WAY (STATE ROAD 884) (250 FEET WIDE); THENCE RUN S 89?38'27" E ALONG SAID SOUTH LINE FOR 539.91 FEET TO THE POINT OF BEGINNING; THENCE CONTINUE S 89?38'27" E ALONG SAID SOUTH LINE FOR 2224.05 FEET TO AN INTERSECTION WITH THE WEST LINE OF THE NORTHEAST QUARTER (NE 1/4) OF THE NORTHEAST QUARTER (NE 1/4) OF SAID SECTION; THENCE RUN S 02?16'01" E ALONG SAID WEST LINE FOR 1168.38 FEET TO THE SOUTHWEST CORNER OF SAID FRACTION; THENCE RUN N 89?54'24" E ALONG THE SOUTH LINE OF SAID SECTION FOR 1324.86 FEET TO THE SOUTHEAST CORNER OF SAID FRACTION; THENCE RUN S 03?20'25" E FOR 1284.37 FEET TO THE QUARTER CORNER ON THE EAST LINE OF SAID SECTION; THENCE RUN S 00?01'59" E ALONG SAID EAST LINE FOR 2635.65 FEET TO THE NORTHWEST CORNER OF SAID SECTION 1; THENCE RUN N 89?28'42" E ALONG THE NORTH LINE OF THE NORTHWEST QUARTER (NW 3) OF SAID SECTION 1 FOR 2642.98 FEET TO THE QUARTER CORNER ON SAID NORTH LINE; THENCE RUN S 89?57'06" E ALONG THE NORTH LINE OF THE NORTHEAST QUARTER (NE 3) OF SAID SECTION 1 FOR 2523.38 FEET TO THE NORTHEAST CORNER OF SAID SECTION; THENCE RUN N 00?57'01" W ALONG THE WEST LINE OF SAID SECTION 31 FOR 2644.12 FEET TO THE QUARTER CORNER ON SAID WEST LINE; THENCE RUN N 00?35'02" W ALONG SAID WEST LINE OF SAID SECTION 31 FOR 1705.47 FEET TO AN INTERSECTION WITH THE SOUTHWESTERLY LINE OF IMMOKALEE ROAD (STATE ROAD 82) (200 FEET WIDE); THENCE RUN S 46?07'29" E ALONG SAID SOUTHWESTERLY LINE FOR 6215.51 FEET TO AN INTERSECTION WITH THE SOUTH LINE OF SAID SECTION 31; THENCE CONTINUE S 46?07'29" E ALONG SAID SOUTHWESTERLY LINE FOR 1227.27 FEET TO AN INTERSECTION WITH A LINE COMMON TO SAID SECTIONS 5 AND 6; THENCE CONTINUE S 46?07'29" E ALONG SAID SOUTHWESTERLY LINE FOR 1535.36 FEET TO A POINT OF CURVATURE; THENCE SOUTHEASTERLY ALONG SAID SOUTHWESTERLY LINE ALONG THE ARC OF A CURVE TO THE LEFT OF RADIUS 5824.88 FEET (DELTA 18?13'21") (CHORD BEARING S 55?14'10" E) (CHORD 1844.76 FEET) FOR 1852.55 FEET TO A POINT OF TANGENCY; THENCE CONTINUE ALONG SAID SOUTHWESTERLY LINE S 64?20'50" E FOR 22.21 FEET TO AN INTERSECTION WITH THE EAST LINE OF THE WEST HALF (W 2) OF SAID SECTION 5; THENCE RUN S 00?06'33" E ALONG SAID EAST LINE FOR 2271.81 FEET TO THE QUARTER CORNER COMMON TO SAID SECTIONS 5 AND 8; THENCE RUN S 01?02'00" E ALONG THE EAST LINE OF THE WEST HALF (W 2) OF SAID SECTION 8 FOR 3028.35 FEET; THENCE RUN N 89?33'57" E FOR 605.03 FEET; THENCE RUN S 01?02'02" E FOR 1800.10 FEET; THENCE S 89?33'57" W FOR 605.03 FEET; THENCE RUN S 01?02'00" E FOR 500.03 FEET TO THE QUARTER CORNER COMMON TO SAID SECTIONS 8 AND 17; THENCE RUN S 01?00'12" E ALONG THE EAST LINE OF THE NORTHWEST QUARTER (NW 3) OF SAID SECTION 17 FOR 926.76 FEET TO AN INTERSECTION WITH THE NORTHEASTERLY LINE OF A FLORIDA POWER & LIGHT COMPANY SUBSTATION SITE AS DESCRIBED IN DEED RECORDED IN OFFICIAL RECORD BOOK 1606 AT PAGE 1286, LEE COUNTY RECORDS; THENCE RUN N 37?57'04" W ALONG SAID NORTHEASTERLY LINE FOR 361.70 FEET; THENCE RUN S 52?02'56" W ALONG THE NORTHWESTERLY LINE OF SAID SITE FOR 361.70 FEET; THENCE RUN S 37?57'04" E ALONG THE SOUTHWESTERLY LINE OF SAID SITE FOR 741.48 FEET TO AN INTERSECTION WITH THE NORTHWESTERLY LINE OF DANIELS ROAD EXTENSION (200 FEET WIDE) AS DESCRIBED IN DEED RECORDED IN OFFICIAL RECORD BOOK 1644 AT PAGE 1739, LEE COUNTY RECORDS; THENCE RUN N 68?38'13" E ALONG SAID NORTHWESTERLY LINE FOR 64.84 FEET TO AN INTERSECTION WITH SAID EASTERLY LINE OF SAID NORTHWEST QUARTER (NW 3) OF SAID SECTION 17; THENCE RUN S 01?00'12" E ALONG SAID EAST LINE FOR 1238.52 FEET TO THE SOUTHEAST CORNER OF SAID FRACTION; THENCE RUN S 89?30'38" W ALONG THE SOUTH LINE OF SAID FRACTION AND A NORTH LINE OF THE SOUTHWEST FLORIDA REGIONAL AIRPORT FOR 2110.83 FEET TO AN INTERSECTION WITH THE SOUTHEASTERLY LINE OF SAID DANIELS ROAD EXTENSION; THENCE RUN S 54?00'05" W THROUGH SAID SECTIONS 17, 18, AND 19 ALONG THE SOUTHEASTERLY LINE OF A ROAD RIGHT-OF-WAY (200 FEET WIDE) FOR 7032.17 FEET TO AN INTERSECTION WITH THE WEST LINE OF SAID SECTION 19; THENCE RUN N 00?55'36" W ALONG SAID WEST LINE FOR 1477.45 FEET TO THE NORTHWEST CORNER OF SAID SECTION; THENCE RUN N 00?54'13" W ALONG THE WEST LINE OF THE SOUTHWEST QUARTER (SW 3) OF SAID SECTION 18 FOR 2643.95 FEET TO THE QUARTER CORNER OF SAID WEST LINE; THENCE RUN N 00?39'39" W ALONG THE WEST LINE OF THE NORTHWEST QUARTER (NW 3) OF SAID SECTION 18 FOR 2647.35 FEET TO THE NORTHWEST CORNER OF SAID SECTION; THENCE RUN N 00?57'26" W ALONG THE WEST LINE OF THE SOUTHWEST QUARTER (SW 3) OF SAID SECTION 7 FOR 2645.34 FEET TO THE QUARTER CORNER COMMON TO SAID SECTIONS 7 AND 12; THENCE RUN S 89?55'12" W ALONG THE SOUTH LINE OF THE NORTHEAST QUARTER (NE 3) OF SAID SECTION 12 FOR 2524.67 FEET TO THE WEST LINE OF THE EAST 2524.14 FEET OF SAID NORTHEAST QUARTER (NE 3); THENCE RUN N 01?05'33" W ALONG SAID WEST LINE FOR 2646.07 FEET TO THE SOUTH LINE OF SAID SECTION 1; THENCE RUN S 89?56'14" W ALONG SAID SOUTH LINE FOR 2663.19 FEET TO THE SOUTHWEST CORNER OF SAID SECTION, PASSING THROUGH THE QUARTER CORNER ON THE SOUTH LINE OF SAID SECTION AT 69.26 FEET; THENCE RUN S 89?03'50" W ALONG THE SOUTH LINE OF SAID SECTION 2 FOR 3096.18 FEET TO AN INTERSECTION WITH THE EASTERLY RIGHT-OF-WAY OF PROPOSED TREELINE BOULEVARD; THENCE ALONG SAID EAST RIGHT- OF-WAY LINE THE FOLLOWING BEARING AND DISTANCES: THENCE ALONG THE ARC OF A CURVE TO THE RIGHT HAVING A RADIUS OF 2625.00 FEET (DELTA 29?13'02") (CHORD BEARING S 15?09'16" W) (CHORD 1324.12 FEET) FOR 1338.58 FEET TO A POINT OF TANGENCY; THENCE RUN S 29?45'46" W FOR 618.63 FEET; THENCE ALONG THE ARC OF A CURVE TO THE LEFT HAVING A RADIUS OF 1487.50 FEET (DELTA 28?50'26") (CHORD BEARING S 15?20'33" W) (CHORD 740.87 FEET) FOR 748.75 FEET TO A POINT OF TANGENCY; THENCE RUN S 00?55'22" W FOR 166.10 FEET TO A POINT ON THE SOUTH LINE OF THE NORTHWEST QUARTER OF SECTION 11; THENCE RUN S 88?33'56" W ALONG SAID LINE FOR 125.11 FEET TO AN INTERSECTION WITH THE WESTERLY RIGHT-OF-WAY OF PROPOSED TREELINE BOULEVARD; THENCE ALONG SAID WEST RIGHT-OF-WAY LINE THE FOLLOWING BEARING AND DISTANCES: THENCE RUN N 00?55'22" E FOR 171.23 FEET; THENCE ALONG THE ARC OF A CURVE TO THE RIGHT HAVING A RADIUS OF 1612.50 FEET (DELTA 28?50'26") (CHORD BEARING N 15?20'33" E) (CHORD 803.13 FEET) FOR 811.67 FEET TO A POINT OF TANGENCY; THENCE N 29145"46' E FOR 618.63 FEET; THENCE ALONG THE ARC OF A CURVE TO THE LEFT HAVING A RADIUS OF 2500.00 FEET (DELTA 33?36'51") (CHORD BEARING N 12?57'22" W) (CHORD 1445.75 FEET) FOR 1466.69 FEET TO A POINT OF TANGENCY; THENCE N 03?51'03" W FOR 959.31 FEET; THENCE ALONG THE ARC OF A CURVE TO THE RIGHT HAVING A RADIUS OF 2800.06 FEET (DELTA 10?24'15") (CHORD BEARING N 01?21'04" E) (CHORD 507.76 FEET) FOR 508.45 FEET TO A POINT OF TANGENCY; THENCE N 06?33'12" E FOR 1166.54 FEET; THENCE ALONG THE ARC OF A CURVE TO THE LEFT HAVING A RADIUS OF 1000.00 FEET (DELTA 43?02'49") (CHORD BEARING N 14?58'12" W) (CHORD 733.76 FEET) FOR 751.31 FEET TO A POINT OF TANGENCY; THENCE N 36?29'36" W FOR 266.36 FEET; THENCE ALONG THE ARC OF A CURVE TO THE RIGHT HAVING A RADIUS OF 2000.00 FEET (DELTA 37?40'00") (CHORD BEARING N 17?39'36" W) (CHORD 1291.27 FEET) FOR 1314.81 FEET TO A POINT OF TANGENCY; THENCE N 01?10'24" E FOR 245.33 FEET; THENCE S 89?25'36" W LEAVING SAID WEST LINE FOR 114.67 FEET TO A POINT ON THE EAST LINE OF TREELINE BOULEVARD (TO BE RE-ALIGNED) AS DESCRIBED IN OFFICIAL RECORD BOOK 1529 BEGINNING AT PAGE 412 OF THE PUBLIC RECORDS OF LEE COUNTY; THENCE N 00?02'17" W FOR 68.31 FEET TO AN INTERSECTION WITH THE SOUTH LINE OF SECTION 34, TOWNSHIP 44 SOUTH, RANGE 25 EAST; THENCE N 01?00'06" W ALONG SAID EAST LINE OF TREELINE BOULEVARD (TO BE RE-ALIGNED) FOR 2642.68 FEET; THENCE N 00?58'02" W ALONG SAID EAST LINE OF TREELINE BOULEVARD (TO BE RE-ALIGNED) FOR 1048.01 FEET TO A POINT ON A NON-TANGENT CURVE TO THE RIGHT HAVING A RADIUS OF 1050.00 FEET AND TO WHICH POINT A RADIAL LINE BEARS S 47?49' 01" E; SAID POINT ALSO BEING ON THE EAST LINE OF A ROAD RIGHT-OF-WAY AS DESCRIBED IN OFFICIAL RECORD BOOK 2581 BEGINNING AT PAGE 4060 OF THE LEE COUNTY RECORDS; THENCE ALONG THE ARC OF A CURVE TO THE RIGHT HAVING A RADIUS OF 1050.00 FEET (DELTA 41?49'26") (CHORD BEARING N 21?16'16" E) (CHORD 749.56 FEET) FOR 766.46 FEET TO A POINT OF TANGENCY; THENCE N 00?21'33" E ALONG SAID EAST LINE FOR 721.50 FEET; THENCE N 45?21'33" E FOR 42.68 FEET TO THE POINT OF BEGINNING. CONTAINING 4,390 ACRES, MORE OR LESS. SUBJECT TO EASEMENTS, RESTRICTIONS, RESERVATIONS AND RIGHTS- OF-WAY (RECORDED AND UNRECORDED, WRITTEN AND UNWRITTEN) BEARINGS ARE BASED ON THE NORTH LINE OF SECTION 10, TOWNSHIP 45 SOUTH, RANGE 25 EAST AS BEARING S88?57'32"W. TOGETHER WITH: DESCRIPTION SECTION 3, TOWNSHIP 45 SOUTH, RANGE 25 EAST LEE COUNTY, FLORIDA PARCEL "B" A TRACT OR PARCEL OF LAND LYING IN SECTION 3, TOWNSHIP 45 SOUTH, RANGE 25 EAST, LEE COUNTY, FLORIDA WHICH TRACT OR PARCEL IS DESCRIBED AS FOLLOWS: COMMENCING AT THE NORTHWEST CORNER OF SAID SECTION 3 RUN N 88?37'17" E ALONG THE NORTH LINE OF THE NORTHWEST ONE-QUARTER (NW 3) OF SAID SECTION 3 FOR 2477.68 FEET TO AN INTERSECTION WITH THE WESTERLY RIGHT-OF-WAY LINE OF INTERSTATE 75 (I-75) (STATE ROAD NO. 93) (324 FEET WIDE) AND THE POINT OF BEGINNING; THENCE RUN S 14?49'52" E ALONG SAID WESTERLY RIGHT- OF-WAY LINE FOR 677.94 FEET TO AN INTERSECTION WITH THE EAST LINE OF THE NORTHWEST ONE-QUARTER (NW 3) OF SAID SECTION 3; THENCE RUN S 00?49'05" E ALONG SAID EAST LINE FOR 1299.77 FEET TO THE NORTHWEST CORNER OF THE WEST HALF (W 2) OF THE SOUTHWEST QUARTER (SW 3) OF THE NORTHEAST QUARTER (NE 3) OF SAID SECTION; THENCE RUN N 88?12'52" E ALONG THE NORTH LINE OF SAID FRACTION FOR 323.06 FEET TO AN INTERSECTION WITH SAID WESTERLY LINE OF STATE ROAD NO. 93; THENCE RUN S 14?49'52" E ALONG SAID WESTERLY LINE FOR 2.67 FEET TO AN INTERSECTION WITH THE EAST LINE OF SAID FRACTION; THENCE RUN S 00?37'05" E ALONG SAID EAST LINE FOR 650.21 FEET TO THE SOUTHEAST CORNER OF SAID FRACTION; THENCE RUN N 88?09'46" E ALONG THE NORTH LINE OF THE SOUTHEAST ONE-QUARTER (SE 3) OF SAID SECTION 3 FOR 163.88 FEET TO AN INTERSECTION WITH SAID WESTERLY RIGHT-OF-WAY LINE; THENCE RUN S 14?49'52" E ALONG SAID WESTERLY RIGHT-OF-WAY LINE FOR 1474.99 FEET TO A POINT OF CURVATURE; THENCE RUN SOUTHERLY ALONG AN ARC OF A CURVE TO THE RIGHT OF RADIUS 22800.31 FEET (CHORD BEARING S 13?33'28" E) (CHORD 1013.23 FEET) (DELTA 02?32'47") FOR 1013.31 FEET TO A POINT ON A NON-TANGENT LINE; THENCE RUN N 82?23'52" W FOR 122.32 FEET TO A POINT ON A NON- TANGENT CURVE; THENCE RUN NORTHERLY ALONG AN ARC OF A CURVE TO THE LEFT OF RADIUS 22685.31 FEET (CHORD BEARING N 13?36'38" W) (CHORD 966.55 FEET) (DELTA 02?26'29") FOR 966.63 FEET TO A POINT OF TANGENCY; THENCE RUN N 14?49'52" W FOR 542. 01 FEET TO A POINT OF CURVATURE; THENCE RUN NORTHWESTERLY ALONG AN ARC OF A CURVE TO THE LEFT OF RADIUS 250.00 FEET (CHORD BEARING N 54?04'24" W) (CHORD 316.30 FEET) (DELTA 78?29'05") FOR 342.45 FEET TO A POINT OF TANGENCY; THENCE RUN S 86?41'03" W FOR 1133.06 FEET; THENCE RUN N 02?10'37" W FOR 387.06 FEET; THENCE RUN N 87?40'37" W FOR 838.00 FEET; THENCE RUN N 01?19'23" E FOR 243.00 FEET; THENCE RUN S 88?09'46" W FOR 190.18 FEET TO AN INTERSECTION WITH THE SOUTHEASTERLY LINE OF SIX MILE CYPRESS PRESERVE, AS RECORDED IN OFFICIAL RECORD BOOK 1741 AT PAGE 1241 OF THE PUBLIC RECORDS OF LEE COUNTY, FLORIDA; THENCE RUN THE FOLLOWING FIFTEEN (13) COURSES ALONG SAID SOUTHEASTERLY LINE; N 15?42'08" E FOR 184.34 FEET; N 20?55'23" E FOR 222.23 FEET; N 45?09'19" E FOR 183.23 FEET; N 31?07'36" E FOR 305.01 FEET; N 32?55'08" E FOR 155.78 FEET; N 17?03'28" E FOR 110.45 FEET; N 26?26'47" E FOR 300.81 FEET; N 18?42'17" E FOR 150.86 FEET; N 04?51'19" W FOR 340.19 FEET; N 12?09'34" E FOR 251.79 FEET; N 27?12'34" E FOR 210.15 FEET; N 14?53'31" E FOR 323.53 FEET; N 35?18'42" E FOR 275.49 FEET TO AN INTERSECTION WITH THE NORTH LINE OF THE NORTHWEST ONE-QUARTER (NW 3) OF SAID SECTION 3; THENCE RUN N 88?37'17" E ALONG SAID NORTH LINE FOR 530.87 FEET TO THE POINT OF BEGINNING. CONTAINING 111.14 ACRES, MORE OR LESS. TOTAL AREA FOR BOTH PARCELS 4,501.14 ACRES, MORE OR LESS. BEARINGS HEREINABOVE MENTIONED ARE BASED ON THE NORTH LINE OF THE NORTHWEST QUARTER (NW 3) OF SAID SECTION 3 TO BEAR N 88?37'17" W WHICH BEARING IS DERIVED FROM PLANE COORDINATE FOR THE FLORIDA WEST ZONE (1979 ADJUSTMENT). Specific Authority 120.53(1), 190.005, FS. Law Implemented 190.004, 190.005, FS. History - new 5-22-86, Amended .
The Issue The issue in this case is whether the Florida Land and Water Adjudicatory Commission should promulgate a rule establishing the Fiddler's Creek Community Development District.
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 Arborwood Community Development District (Petition), dated November 17, 2003. The local public hearing was conducted for the purpose of gathering information in anticipation of rulemaking by FLWAC.
The Issue The issue before the Florida Land and Water Adjudicatory Commission (FLWAC) in this proceeding is whether the Petition to Establish the Three Creeks Community Development District (Petition) meets the criteria set forth in Chapter 190, Florida Statutes, and Chapter 42-1, Florida Administrative Code. The local public hearing was for the purpose of gathering information in anticipation of quasi-legislative rulemaking by FLWAC.
The Issue The issues to be determined in this appeal are whether the Appellants have standing to bring this appeal, and (2) whether the development plan application met the applicable criteria for approval under Section 30-3.46 of the City's LDC in light of the standard of review outlined in Section 30-3.57 of the City's LDC.
Findings Of Fact The Property The property consists of approximately 0.50 acres located at 422 Northwest Third Avenue, Gainesville, Florida (the Property). The Property currently has a Residential Low- Density (RL) future land use (FLU) category under the City's Comprehensive Plan. The RL FLU category includes five implementing zoning districts, and the Property is in the Residential Conservation (RC) zoning district. The Property is not located within the boundaries of the Pleasant Street Historic District. Blackwater owns the Property and submitted a minor development plan application, identified as AD-17-00143, for three buildings with six dwelling units and associated parking, stormwater facilities, and utility improvements. The three buildings have two dwelling units each, which is a use allowed by right in the RC zoning district. The use is described in Section 30-4.16 of the City's LDC as "Multi-family, small scale (2-4 units per building)." The Property was conveyed to Blackwater by a warranty deed recorded January 15, 2014. The warranty deed describes parcel 14518-002-000 as the east one-half of lot 7 and all of lots 8 and 9 in the south half of block 27 of "Brush's Addition to Gainesville," according to the Plat recorded in "Plat Book 'A,' Page 88 of the Public Records of Alachua County, Florida." Issues on Appeal The Appellants raised and argued four issues in this appeal. Whether the Property is a parcel or lot that can be developed under the City's LDC. The Appellants argue that the Property is not a "parcel" and also not a "lot" under the City's LDC. The LDC definitions are found in Section 30-2.1 of the City's LDC, which states: Parcel means a unit of land within legally established property lines. Legally established property lines means those lines created by a recorded plat, minor plat or lot split, those units of land recognized as lots formed prior to 1961 as recorded on a map kept by the building division, and those lots recognized by the county code enforcement department at the time of any annexation. Lot means a parcel of land contained within property lines of a specific area, including land within easements and building setback lines of the area, but excluding any land within street right-of-way. The Appellants contend that the Plat of Brush's Addition to Gainesville (the Plat) legally established property lines. The Appellants further contend the definitions mean that only the lots created by the Plat are parcels. In other words, the "unit of land within legally established lines" cannot consist of more than one of the originally platted lots. This is not the City's interpretation of its own LDC. The Property, as described by the warranty deed, is a parcel within the property lines first established on the Plat. As argued by the City and Blackwater during oral argument, the Appellants' interpretation is not reasonable and "could stop all multifamily development in the [C]ity." The City's interpretation of its own LDC is not clearly erroneous and has foundation in reason. Also, approval of the development plan was not an ultra vires act since the City was required to make a decision on the development plan application in accordance with the provisions of its LDC. Whether the Property meets minimum lot width standards under the City's LDC. The Appellants' second argument is that the development plan fails to meet the required minimum lot width standard under Section 30-4.17 of the City's LDC. The Appellants argue that since Lots 8 and 9 on the Plat are each 50 feet wide, then the permitted use should be "single-family," which has a minimum lot width of 35 feet. Based on the above finding, the Property is a parcel or lot that may be developed under the City's LDC. The Property's lot width is 125 feet, which meets the minimum width standard for the proposed "multi-family, small scale (2-4 units per building)" use. Whether the requirements for a masonry wall and Type B landscape buffer apply to the Property and the development plan. Section 30-4.8.D.2.e of the City's LDC provides: A decorative masonry wall (or equivalent material in noise attenuation and visual screening) with a minimum height of six feet and a maximum height of eight feet plus a Type B landscape buffer shall separate multi- family residential development from properties designated single-family residential. The Appellants argue that the development plan should be required to meet this buffer standard because the RC zoning district is residential, and the Property abuts single-family dwellings. Under the LDC provision, the buffer is required to separate multi-family developments from properties "designated single-family residential." The City argues that designations refer to a property's FLU category as designated in the City's Comprehensive Plan. The Appellants argue that "designated single-family residential" simply refers to a single-family dwelling. Policy 4.1.1 of the City's Comprehensive Plan describes certain FLU categories such as Single-Family (SF). Policy 4.1.4 of the City's Comprehensive Plan provides that the City can amend land use "designations" under certain circumstances. Policy 4.2.1 of the City's Comprehensive Plan provides that the City shall adopt regulations that separate uses with performance measures, such as "buffering of adjacent uses by landscape." Based on the language of the City's Comprehensive Plan, it is a reasonable interpretation that use of the term "designated" refers to the FLU category. The Property and the abutting single-family dwellings have the same FLU category designation of RL. Thus, the masonry wall and Type B buffer requirements of Section 30-4.8 of the City's LDC do not apply to this development plan. Whether the Property's development plan meets applicable parking standards under the City's LDC. The Appellants argue that the development plan must provide 13 parking spaces, and it only provides nine parking spaces, which does not meet the parking standards of Sections 30- 7.2 and 30-7.5 of the City's LDC. In addition, the Appellants argue that the parking must be paved because the City's LDC only allows gravel parking areas with ten or fewer parking spaces. Under Section 30-7.5 of the City's LDC, the development plan must provide 13 parking spaces. The development plan provides nine parking spaces on the Property and four on-street spaces approved by the City, for a total of 13 parking spaces. The nine parking spaces on the Property satisfy the requirement of allowing gravel parking areas with ten or fewer parking spaces. Standing Appellants Vanessa Burt and Suzi Rumsey are the only residents who own property within 400 feet of the Property. Appellants Jason Atkins-Tuffs and Lauren Atkins are recent new home buyers in the Pleasant Street Neighborhood. Mr. Atkins-Tuffs is concerned that the development plan would not be a "good fit for our growing historic downtown family neighborhood." Appellant Dotty Faibisy is an almost 20-year resident and is concerned that the development plan "is a poor fit for the Historic Pleasant Street Neighborhood." Appellants John Rehfuss and Caroline Rehfuss are residents since 2013 in the Pleasant Street Historic District and are concerned that the development plan "is going to be a poor fit, both aesthetically and functionally, for our neighborhood." Appellant Tan Silva is a 23-year resident, who lives outside of but "on the edge" of the Pleasant Street Historic District and feels that compatible development should be maintained. Appellant Furman Wallace is an 84-year resident of the Pleasant Street Neighborhood. He is concerned with the character and type of buildings in the Pleasant Street Neighborhood. Appellant Thomas Hawkins was a 12-year resident of the Pleasant Street Neighborhood and is currently building a new home in the neighborhood. Mr. Hawkins is concerned that the development plan does "not compliment the neighborhood's historic architecture" and is not consistent with the City's LDC requirements.
The Issue The issue is whether the Petition to Establish the Bexley Community Development District I (Petition) meets the applicable criteria set forth in Chapter 190, Florida Statutes (2006),1 and Florida Administrative Code Rule Chapter 42-1. The purpose of the hearing was to gather information in anticipation of quasi- legislative rulemaking by the Florida Land and Water Adjudicatory Commission (Commission).
The Issue The issue in this case is whether a small scale amendment to the Cooper City comprehensive plan adopted pursuant to Section 163.3187(1)(c), Florida Statutes, is "in compliance."
Findings Of Fact The Parties. Petitioner, The Sunshine Ranches Homeowners Association, Inc. (hereinafter referred to as the “Homeowners Association ") is a not-for-profit corporation. The Homeowners Association has members who reside within the residential area known as Sunshine Ranches, located in Broward County. The address of the principal office of the Homeowners Association is 12400 Flamingo Road, Fort Lauderdale, Broward County, Florida. (Stipulated Facts). The Homeowners Association was formed on or about December 4, 1968. The Homeowners Association is involved in working for the betterment of residents and land owners within Sunshine Ranches to secure political, social, and economic improvement within Sunshine Ranches. Petitioner, Charles F. Seip, resides at 4661 Southwest 128th Avenue, Fort Lauderdale, Florida. Mr. Seip lives two blocks west of the parcel of property which is the subject of this proceeding. Mr. Seip has lived at his current location for 26.5 years. (Stipulated Facts). Petitioner, Anthony E. Coulson, resides at 4710 Southwest 126th Avenue, Fort Lauderdale, Florida. Mr. Coulson lives approximately four blocks from the subject property. (Stipulated Facts). Petitioner, Jeffrey Price, resides at 5001 Southwest 126th Avenue, Fort Lauderdale, Florida. Mr. Price lives approximately four blocks west of the subject property. (Stipulated Facts). Each Petitioner submitted oral and written objections to the City of Cooper City during the review and adoption proceedings conducted by the City of Cooper City on the adoption of the comprehensive plan amendment which is the subject of this proceeding. Petitioners submitted objections to the Cooper City Planning and Zoning Board and the City of Cooper City Commission. The parties stipulated that Petitioners are "affected persons." Respondent, the City of Cooper City (hereinafter referred to as the "City"), is a municipality of the State of Florida. The City is located in Broward County, Florida. The City is a "local government" as defined in Section 163.3164(13), Florida Statutes. The City's address is 9090 Southwest 50th Place, Cooper City, Broward County, Florida. (Stipulated Facts). Intervenor, George H. Lange, Trustee, is the representative of a trust that owns the property which is the subject of the amendment at issue in this proceeding. The Amendment. By Ordinance Number 96-10-3, the City adopted an amendment, L.L.U.P.A. 96-S-1 (hereinafter referred to as the "Plan Amendment") to the Cooper City Land Use Plan. (Stipulated Facts). The Plan Amendment was adopted on October 22, 1996. (Stipulated Facts). Also adopted with the Plan Amendment was a Development Agreement establishing conditions for the development of the property which is the subject of the Plan Amendment (hereinafter referred to as the "Subject Property"). The Plan Amendment was also identified as Ordinance Number PS96-15 in some notices published by the City. (Stipulated Facts). The Plan Amendment changes the land use designation of approximately 8.45 acres of land from "Estate Residential" to "Commercial" for the eastern 3.82 acres and to "Community Facility" for the western 4 acres. (Stipulated Facts). The Plan Amendment is a "small scale amendment" pursuant to Section 163.3187(1(c), Florida Statutes. Therefore, the Plan Amendment was not reviewed by the Department of Community Affairs. (Stipulated Facts). The petition challenging the Plan Amendment was filed with the Division of Administrative Hearings within 30 days of October 22, 1996, the date the Plan Amendment was adopted. (Stipulated Facts). The City and Its Comprehensive Plan. The City is a relatively small municipality located in southwestern Broward County. Geographically, the City consists of approximately six-and-a-quarter square miles. The City is located directly to the east of Sunshine Ranches. The City and Sunshine Ranches are bounded on the north and south by the same roads: Griffin Road and Orange Road in the north; and Sheridan Street in the South. The western boundary of the City either abuts Sunshine Ranches or is separated by Flamingo Road. The City is bounded on the north by the Town of Davie. It is bounded on the south by Pembroke Pines. The City adopted the Cooper City Comprehensive Plan in 1991 (hereinafter referred to as the "Plan"). It consists of Volumes I, II, and III. Volume I contains the text of the Plan. Volumes II and III contain the data and analysis for the Plan. Pursuant to a Compliance Agreement entered into between the City and the Department of Community Affairs, the Plan was found to be "in compliance" as defined in Chapter 163, Part II, Florida Statutes. The City's Evaluation and Appraisal Report. The City was required to submit an Evaluation and Appraisal Report to the Department of Community Affairs on or before March 11, 1996. At the time of the formal hearing of this case, the City had prepared a draft of its Evaluation and Appraisal Report. See Respondent's and Intervenor's Exhibit 5. The draft of the City's Evaluation and Appraisal Report had not, however, been filed with the Department of Community Affairs. Sunshine Ranches. Sunshine Ranches is an unincorporated area of Broward County. It is generally bounded by the following roads: On the north by Orange Road and Griffin Road; On the south by Sheridan Street; On the west by Volunteer Road (148th Avenue); and On the east by Flamingo Road. Griffin Road abuts the entire length of the northern boundary of Sunshine Ranches. Orange Road is located immediately to the north of Griffin Road. The two roads are separated by a canal which runs the entire length of the northern boundary of Sunshine Ranches. The area to the north of Orange Road and Griffin Road is largely undeveloped. Flamingo Road on the eastern boundary of Sunshine Ranches is a six-lane road with a wide right-of-way. There is also a canal that runs the length of Flamingo Road. The canal separates Flamingo Road from Sunshine Ranches and other parcels of property located west of Flamingo Road. The right- of-way and canal are approximately 270 feet wide. The roads along the north, south, and west of Sunshine Ranches are contiguous with Sunshine Ranches' boundaries. On the east, Flamingo road is contiguous with most of Sunshine Ranches' eastern boundary. There are, however, several parcels of property located west of Flamingo Road which are a part of the City. Sunshine Ranches consists of approximately four square miles of land, or approximately 2,500 acres. Sunshine Ranches is a rural community with a significant number of small and large horse farms. There are also large homesites, the majority of which are five acres or larger. Many homesites have barns on them. A substantial number of homes in Sunshine Acres have animals, such as horses, chickens, and cows. Most of the roads in Sunshine Ranches are dirt roads. There are no sidewalks or traffic lights. There are a few fire hydrants in Sunshine Ranches. Most areas, however, are served by fire wells. There is a volunteer fire department consisting of two vehicles. The vehicles are leased from Broward County. Sunshine Ranches is a unique community in Broward County, both in terms of the size of lots and its rural, equestrian and agricultural character. There are signs at each entrance road into Sunshine Ranches that include the following: "Welcome to Sunshine Ranches: A Rural Estate Community." Most commercial enterprises within Sunshine Ranches are involved in equestrian-related activities. These activities consist of providing boarding facilities, riding schools, and horse training facilities. There is also a plant nursery located in Sunshine Ranches. Horses owned by non-residents of Sunshine Ranches are boarded at facilities in Sunshine Ranches. Non-residents also ride horses at facilities located in Sunshine Ranches. The land use designations for Sunshine Ranches consist of the following: "Rural Ranches," which allows one residential unit per two and one-half acres; and "Rural Estate," which allows one residential unit per one acre. The designation of Sunshine Ranches as Rural Ranches and Rural Estate was accomplished by an amendment to the Broward County comprehensive plan. It was the first area in Broward County to receive these designations. The designations resulted from a study conducted by Broward County to identify, preserve, and protect rural lands from urban encroachment. Property designated Rural Ranches may be used for "Community Facilities" also. Community Facilities include schools, fire stations, churches, etc. Churches require five- acre lots. There are several parcels located along Flamingo Road in Sunshine Ranches which are used by Churches. There are also schools located within Sunshine Ranches. Approximately 90% of Sunshine Ranches is designated Rural Ranches. Approximately 10% of Sunshine Ranches is designated Rural Estate. The portion of Sunshine Ranches designated Rural Estate is located along Giffin Road. Commercial Activities Around Sunshine Ranches. There are only a few commercial sites located near the boundaries of Sunshine Ranches. One is located on the western boundary of Sunshine Ranches at Volunteer Road and Griffin Road. This site is located on the side of Volunteer Road opposite to Sunshine Ranches. The site is, therefore, separated from Sunshine Ranches by the road and a canal. The largest amount of commercial property in the vicinity of Sunshine Ranches is located near the eastern boundary of Sunshine Ranches and Flamingo Road. At the corner of Flamingo Road and Giffin Road, immediately across Flamingo Road from the Subject Property, is Wal-Mart Shopping Center. Abutting Flamingo Road is the parking lot for the shopping center. The shopping center is located to the east of the parking lot. The shopping center is currently separated from Sunshine Ranches by approximately 700 feet of parking lot, the six-lanes of Flamingo Road, the canal located on the west side of Flamingo Road and the Subject Property. Immediately to the south of the Wal-Mart parcel are properties designated "Low 5" and "Low-Medium 10." Both designations allow residential uses. Flamingo Road and the canal on the western side of Flamingo Road act as a buffer between the existing commercial activities on Flamingo Road and Sunshine Ranches. Flamingo Road has historically acted as a dividing line between commercial activities and Sunshine Ranches. Commercial activities have been limited to the eastern side of Flamingo Road. On the west side of Flamingo Road there are several parcels of land which have been annexed as part of the City. None of these parcels are currently approved for commercial uses, however. They are all currently designated for residential ("Estate Residential") or Community Facilities. Most remain undeveloped. The Estate Residential designation allows use of the property for Community Facilities. Immediately to the south of the Subject Property is a 16-acres parcel designated Estate Residential. The largest parcel of property in the City located on the western side of Flamingo Road has been developed under the name of County Glen. There are no commercial sites within County Glen. Steps were taken in developing County Glen to minimize the impact of its higher density on Sunshine Ranches. These steps included restricting the number of traffic lights within the development and a limitation on density of the lots directly abutting Sunshine Ranches to one residential unit per acre. Although County Glen is more urban than Sunshine Ranches, steps were taken to buffer Sunshine Ranches from the impact of the development, consistent with development allowed west of Flamingo Road. The Need for Commercial Property in the City. Volume II of the Plan contains an analysis of the amount of commercial acreage within the City necessary to support the residents of the City. The analysis indicates that the City has one of the lowest ratios of commercial to residential acreage in Broward County. The ratio of commercial property to residential property was 7.2 percent. Although this ratio is lower than the ratio for Broward County, the City and the Department of Community Affairs agreed that the Plan, including the amount of acreage designated for commercial use, was "in compliance." The City has not amended its Plan to change this ratio. The City has adopted two Plan amendments reducing the amount of acreage in the City designated "Commercial" under the Plan. One amendment involved approximately 14.4 acres. The evidence failed to prove the size of the other parcel. Currently, there are a number of parcels of land designated Commercial under the Plan which are vacant. One is known as the Transflorida Bank Plaza. It is located to the east of the Subject Property at the corner of Griffin Road and 100th Avenue. The property was formerly a Winn Dixie Supermarket. Part of the property is still used for commercial uses. Another vacant commercial parcel is located on Pine Island Road across from David Poenick Community Center. This parcel is 6.5 acres. The City has approved use of this property for a 55,000 square-foot Albertson's. Another vacant commercial parcel is located on Stirling Road across from the Cooper City High School. On the east side of Flamingo Road, between Stirling Road and Giffin Road, there is a shopping center known as Countryside Shops. There are vacant parcels to the south and north of this property which could be used for commercial purposes. Finally, there are other vacant commercial parcels located in the central part of the City. The location of commercial property is an important factor in determining whether the property will actually be used. Therefore, the fact that there are vacant commercial properties located in the City fails to prove that there is not a need for the total amount of property designated Commercial under the Plan. Overall, the City has reduced the amount of property designated Commercial under the Plan. The amount of land being classified as Commercial pursuant to the Plan Amendment will not increase the amount of property originally designated Commercial pursuant to the Plan. The "Industrial" land use designation under the Plan allows some uses which may be considered commercial. This was true when the Plan was found to be in compliance, however, and the amount of land designated Commercial was still approved. The evidence failed to prove that the amount of property designated Commercial, including the portion of the property being designated Commercial pursuant to the Plan Amendment, is not supported by the data and analysis that supported the amount of commercial property found to be in compliance under the Plan when it was adopted. In light of the fact that the City has not submitted its Evaluation and Appraisal Report to the Department of Community Affairs for review as required by Section 163.3191, Florida Statutes, the amount of property designated Commercial in the originally approved Plan should not be relied upon to support the Plan Amendment. While the draft of the Evaluation and Appraisal Report prepared by the City indicates a need for additional commercial acreage in the City, the Department of Community Affairs has not reviewed the report. Nor has the City amended the Plan "based on the recommendations contained in the adopted evaluation and appraisal report " Section 163.3191 (4), Florida Statutes. The Subject Property and the Impact of the Plan Amendment. The Subject Property is currently classified as "Estate Residential" in the Plan. This classification allows the use of the Subject Property for residential purposes. The Subject Property is located at the southwestern corner of Flamingo Road and Griffin Road. It is located on the west of Flamingo Road. The Subject Property abuts the northeastern corner of Sunshine Ranches. Under the Plan Amendment, the eastern approximately four acres of the Subject Property will be designated Commercial (hereinafter referred to as the "Commercial Property"). This will be the first property on the west side of Flamingo Road designated for commercial uses. The Commercial Property will be separated from Sunshine Ranches by the remaining 3.82 acres of the Subject Property. This portion of the Subject Property will be designated Community Facilities (hereinafter referred to as the "Community Facilities Property"). The Subject Property abuts an area of Sunshine Ranches which consists of Rural Estate property. This designation makes up approximately 10 percent of the property in Sunshine Ranches. The Plan Amendment allows stormwater facilities required for the Commercial Property and the Community Facilities Property to be located on the Community Facilities Property. I. Compatibility of Land Classifications with Surrounding Classifications; The Impact of the Plan Amendment on Sunshine Ranches. Policy 1.1.3 of the Plan provides that the compatibility of a proposed land use with existing land uses is a primary consideration in determining whether a land use should be allowed. Residential and commercial land uses are not inherently compatible. Despite this fact, residential and commercial land uses often abut each other. Where this occurs, steps can be taken to minimize the negative impact of the commercial use of property on the residential use of adjoining property. Flamingo Road and the adjacent canal provide a good boundary and buffer between rural Sunshine Ranches and the urbanized area of the City. The Plan recognizes this fact by requiring that the City conduct a study of the application of an urban growth boundary line for areas of the City located west of Flamingo Road. Regardless of the size of the Commercial Property, the designation of the Commercial Property for commercial uses would be the first commercially authorized use of property west of Flamingo Road or inside any of the other boundary roads of Sunshine Ranches. Comparing the uses allowed on the Commercial Property with the uses of property in Sunshine Ranches, it is evident that the uses are not compatible. This conclusion, however, does not necessarily mean that the City's approval of the Commercial Property for commercial uses is not "in compliance." Although the uses allowed on the Commercial Property and in Sunshine Ranches are incompatible, there are steps which can be taken to minimize the negative impacts which occur when commercial activities approach residential activities. One of those steps was taken when the City approved the Plan Amendment with the Community Facilities Property located between the Commercial Property and Sunshine Ranches. The Community Facilities Property, in conjunction with other measures, can be an effective buffer between the Commercial Property and Sunshine Ranches. The Development Agreement adopted by the City was adopted, in part, to address compatibility concerns. The Development Agreement eliminates various uses of the Commercial Property which would otherwise be allowed by the City's zoning for commercial parcels. The Development Agreement also provides that the Community Facilities Property will be dedicated to community facilities uses once the development of the Commercial Property is approved. The Development Agreement also includes certain development standards and requirements intended to reduce the impact on Sunshine Ranches due to incompatibility, such as requiring berms and landscaping to buffer the Subject Property from Sunshine Ranches. Horse trails along the Subject Property are to be included in the development. Land development regulations will require that steps be taken in the development of the Subject Property to reduce the negative impact on adjoining property, including Sunshine Ranches. The designation of the Commercial Property for commercial uses could, however, have a "domino affect" on other property located west of Flamingo Road. Once one parcel is approved, it will be difficult for the City not to approve similarly situated parcels. The Plan Amendment will increase the expectation of others who own property west of Flamingo Road that the land- use designation of their property can be changed to Commercial. The evidence, however, failed to prove that there are other parcels of property located west of Flamingo Road which are sufficiently similar to the Subject Property that they would be allowed to be used for commercial purposes. The evidence also failed to prove that any parcels of property located west of Flamingo Road which may be considered in the future for commercial uses cannot have conditions imposed on their use for commercial purposes which will adequately protect Sunshine Ranches from an incompatible use. The Plan Amendment could also negatively impact the ability to use adjoining property for residential purposes. In particular, the sixteen-acre parcel located immediately to the south of the Subject Property will more difficult to develop as residential if the Plan Amendment is approved. The evidence failed to prove, however, that with effective buffering adjoining property cannot be used for residential purposes. The evidence failed to prove that, with proper measures to reduce the impacts of the development on the Subject Property on Sunshine Ranches, the development of the Subject Property allowed by the Plan Amendment would necessarily be incompatible with Sunshine Ranches. The evidence failed to prove that the uses allowed for the Community Facilities Property are incompatible with the uses allowed in Sunshine Ranches. The Availability of Infrastructure. The evidence failed to prove that the Plan Amendment is not in compliance due to the lack of available vehicle trips on roads that would be impacted by development of the Subject Property. This issue, which involves the question of whether development of the Subject Property is consistent with relevant transportation levels of service, is one that should be considered at the time a development order is sought. It is not an issue for consideration in determining whether a land use designation amendment is in compliance. The same conclusion applies to other services such as sewer and water, which currently are available for the Subject Property. Urban Sprawl, the State and Regional Plan, Internal Inconsistency, and Inconsistency with the Broward County Comprehensive Plan. The evidence failed to support allegations concerning urban sprawl, the state and regional plans, internal inconsistencies, and inconsistencies with the Broward County comprehensive plan.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Administration Commission finding the Plan Amendment is invalid because it was adopted in violation of Section 163.3187(6), Florida Statutes, and is not "in compliance." DONE AND ENTERED this 23rd day of July, 1997, 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 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of July, 1997. COPIES FURNISHED: Richard Grosso, General Counsel Scott SznitRen, Certified Law Intern ENVIRONEMENTAL and LAW USE LAW CENTER, INC. Civil Law Clinic Shepard Broad Law Center Nova Southeastern Center 3305 College Avenue Fort Lauderdale, Florida 33314 Alan Ruf, City Attorney City of Cooper City 9090 Southwest 50th Place Cooper City, Florida 33328 Richard G. Coker, Jr., Esquire BRADY and CORER 1318 Southeast 2nd Avenue Fort Lauderdale, Florida 33316 Barbara Leighty, Clerk Administration Commission Growth Management and Strategic Planning 2105 Capitol Tallahassee, Florida 32399 Gregory Smith, Esquire Administration Commission 209 Capitol Tallahassee, Florida 32399-0001
The Issue The issues to be determined are whether the merger of the two districts meets the criteria set forth in chapter 190, Florida Statutes, and whether the hearing process has been conducted in accordance with the requirements of chapter 190 and Florida Administrative Code Chapter 42-1.
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).
