Findings Of Fact Based upon the evidence and testimony adduced at hearing, and the record as a whole, the following Findings of Fact are made: The Proposed District will be located in an unincorporated area of central Palm Beach County within the boundaries set forth in the Amended Petition. It will encompass approximately 9,450 acres of land, including the 2,300 acre impoundment area that the State of Florida has an option to purchase. Irving Cowan, individually and as Trustee, Adrian R. Chapman, as Trustee of the A.R. Chapman Palm Beach Groves Trust, Marvin S. Savin and Elaine S. Savin, as general partners of Savin Groves, a Florida general partnership, and Petitioner, a Florida limited partnership, presently own 100 percent of the land to be included within the Proposed District. The property within the District is designated in the Palm Beach County Comprehensive Plan Land Use Element as either Agricultural Production or Rural Residential The land within the Proposed District is located entirely within the boundaries of an inactive unit of development of the ITWCD. Consequently, the owners of the land neither pay taxes to, nor receive benefits from, the ITWCD. Most of the land is currently used for growing citrus fruit. Those areas which do not have citrus groves are used to support grove operations. It is the present intent of the landowners to continue to use the land for such agricultural purposes. The purposes and functions of the ITWCD and the Proposed District will be significantly different. The ITWCD is primarily concerned with providing drainage to an urbanizing, residential area with a "one By contrast, the Proposed District will operate a "two-way" drainage and irrigation system designed for the benefit of active agricultural production. The ITWCD and the Proposed District will be able to operate independently within their respective areas of responsibility. The creation of the Proposed District will have no adverse impact upon the ITWCD. On July 27, 1992, the Board of Supervisors of the ITWCD unanimously adopted a Resolution in support of the establishment of the Proposed District. The existing infrastructure within the Proposed District consists of roadways, drainage and irrigation facilities, pumping stations, and culverts connecting with the L District. There are no existing water mains or existing sewer facilities. Among the potential improvements to the existing infrastructure which could be undertaken by the Proposed District are the construction of central pumping stations to replace the many individual pumps operated by the several property owners within the Proposed District, and the replacement of the outfall structures into the L-8 canal. In addition, the Proposed District could engage in roadway construction and surfacing of the main fruit hauling routes within the District. 4/ The Proposed District provides the best possible mechanism for financing and implementing these improvements. Of the various alternatives in providing infrastructure services for the community, a community development district is superior to any other alternative, including a municipal service taxing unit, the County or a homeowners' association. This is because neither the County nor a municipal service taxing unit would be as responsive to the Proposed District's landowners as would be the Proposed District and because a homeowners' association would be hindered by reason of its inability to issue bonds or effectively collect property assessments. Centralized ownership, management and control of the Proposed District's infrastructure is more efficient and less costly than the current arrangement. Consequently, the establishment of the Proposed District will increase the likelihood that the land within its boundaries will continue to be used for agricultural purposes. The District will be empowered to issue bonds, levy ad valorem taxes and special assessments, and impose user fees and charges. To defray the costs of operation and maintenance of the infrastructure, the District will utilize a variety of taxes, assessments and user charges tailored to the service involved so as to minimize costs while insuring that only those who receive the benefits from a facility pay the costs involved. Ultimate Findings All statements contained in the Amended Petition, including those contained in the economic impact statement, are true and correct. The creation of the District is not inconsistent with any applicable element or portion of the State Comprehensive Plan or of the Palm Beach County Comprehensive Plan. The land within the Proposed District is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developable as a functional interrelated community. The Proposed District is the best alternative for delivering community development services and facilities to the area that will be served by the District. The community development services and facilities of the Proposed District will not be incompatible with the capacity and uses of existing local and regional community development services and facilities. The area that will be served by the Proposed District is amenable to separate special-district government.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that FLWAC enter a final order granting Petitioner's Amended Petition to establish the Cypress Grove Community Development District by rulemaking pursuant to Chapter 190, Florida Statutes. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 16th day of June, 1993. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of June, 1993.
The Issue The sole issue to be addressed is whether the amendment of the boundaries of The Crossings at Fleming Island Community Development District meets the applicable criteria set forth in Chapter 190, Florida Statutes, and Chapter 42-1, Florida Administrative Code.
Recommendation Based upon the foregoing findings of fact and conclusions of law, the undersigned Administrative Law Judge recommends that the Governor and Cabinet, sitting as the Florida Land and Water Adjudicatory Commission, pursuant to Chapters 190 and 120, Florida Statutes, and Chapter 42-1, Florida Administrative Code, amend the boundaries of The Crossings at Fleming Island Community Development District as requested by the Petitioner by formal adoption of the proposed rule attached to this Report of Findings and Conclusions as Exhibit 3. DONE AND ENTERED this 22nd day of December, 1998, in Tallahassee, Leon County, Florida. DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 1998. COPIES FURNISHED: Robert Bradley, Secretary Florida Land and Water Adjudicatory Commission Executive Office of the Governor 2101 Capitol Tallahassee, Florida 32399-0001 Elizabeth C. Bowman, Esquire Jonathan T. Johnson, Esquire Hopping, Green, Sams and Smith, P.A. 123 South Calhoun Street Post Office Box 6526 Tallahassee, Florida 32314 David Schwartz, Esquire Office of the Governor Florida Land and Water Adjudicatory Commission The Capitol, Room 209 Tallahassee, Florida 32399-0001
The Issue The issue in this proceeding was whether the Petition to Establish the Harmony Ranch Community Development District (Petition) meets the applicable criteria in chapter 190, Florida Statutes, and Florida Administrative Code Chapter 42-1.
The Issue The issue to be determined in this bid protest matter is whether Respondent, Florida Housing Finance Corporation’s, intended award of funding under Request for Applications 2017- 108, entitled “SAIL Financing of Affordable Multifamily Housing Developments To Be Used In Conjunction With Tax-Exempt Bond Financing And Non-Competitive Housing Credits” was clearly erroneous, contrary to competition, arbitrary, or capricious.
Findings Of Fact Florida Housing is a public corporation created pursuant to section 420.504, Florida Statutes. Its purpose is to provide and promote public welfare by administering the governmental function of financing affordable housing in Florida. Florida Housing is designated as the housing credit agency for Florida within the meaning of section 42(h)(7)(A) of the Internal Revenue Code. As such, Florida Housing is authorized to establish procedures to distribute low income housing tax credits and to exercise all powers necessary to administer the allocation of these credits. § 420.5099, Fla. Stat. For purposes of this administrative proceeding, Florida Housing is considered an agency of the State of Florida. To promote affordable housing in Florida, Florida Housing offers a variety of programs to distribute housing credits. (Housing credits, also known as tax credits, are a dollar-for-dollar offset of federal income tax liability.) One of these programs is the State Apartment Incentive Loan program (“SAIL”), which provides low-interest loans on a competitive basis to affordable housing developers. SAIL funds are available each year to support the construction or substantial rehabilitation of multifamily units affordable to very low- income individuals and families. See § 420.5087, Fla. Stat. Additional sources of financial assistance include the Multifamily Mortgage Revenue Bond program (“MMRB”) and non- competitive housing credits. Florida Housing administers the competitive solicitation process to award low-income housing tax credits, SAIL funds, nontaxable revenue bonds, and other funding by means of request for proposals or other competitive solicitation. Florida Housing initiates the competitive application process by issuing a Request for Applications. §§ 420.507(48) and 420.5087(1), Fla. Stat.; and Fla. Admin. Code R. 67-60.009(4). The Request for Application at issue in this matter is RFA 2017-108, entitled “SAIL Financing of Affordable Multifamily Housing Developments to Be Used in Conjunction with Tax-Exempt Bond Financing and Non-Competitive Housing Credits.” Florida Housing issued RFA 2017-108 on August 31, 2017. Applications were due by October 12, 2017.6/ The purpose of RFA 2017-108 is to distribute funding to create affordable housing in the State of Florida. Through RFA 2017-108, Florida Housing intends to award approximately $87,000,000 for proposed developments serving elderly and family demographic groups in small, medium, and large counties. RFA 2017-108 allocates $46,279,600 to large counties, $32,308,400 to medium counties, and $8,732,000 to small counties. RFA 2017-108 established goals to fund: Two Elderly, new construction Applications located in Large Counties; Three Family, new construction Applications located in Large Counties; One Elderly, new construction Application located in a Medium County; and Two Family, new construction Applications located in Medium Counties. Thirty-eight developers submitted applications in response to RFA 2017-108. Of these applicants, Florida Housing found 28 eligible for funding, including all Petitioners and Intervenors in this matter. Florida Housing received, processed, deemed eligible or ineligible, scored, and ranked applications pursuant to the terms of RFA 2017-108, Florida Administrative Code Chapters 67- 48 and 67-60, and applicable federal regulations. RFA 2017-108 provided that applicants were scored based on certain demographic and geographic funding tests. Florida Housing sorted applications from the highest scoring to the lowest. Only applications that met all the eligibility requirements were eligible for funding and considered for selection. Florida Housing created a Review Committee from amongst its staff to review and score each application. On November 15, 2017, the Review Committee announced its scores at a public meeting and recommended which projects should be awarded funding. On December 8, 2017, the Review Committee presented its recommendations to Florida Housing’s Board of Directors for final agency action. The Board of Directors subsequently approved the Review Committee’s recommendations and announced its intention to award funding to 16 applicants. As a preliminary matter, prior to the final hearing, Florida Housing agreed to the following reassessments in the scoring and selection of the applications for funding under RFA 2017-108: SP Lake and Osprey Pointe: In the selection process, Florida Housing erroneously determined that SP Lake was eligible to meet the funding goal for the “Family” demographic for the Family, Medium County, New Construction Goal. (SP Lake specifically applied for funding for the “Elderly” demographic.) Consequently, Florida Housing should have selected Osprey Pointe to meet the Family, Medium County, New Construction Goal. Osprey Pointe proposed to construct affordable housing in Pasco County, Florida. Florida Housing represents that Osprey Pointe is fully eligible for funding under RFA 2017-108. (While Osprey Pointe replaces SP Lake in the funding selection for the “Family” demographic, SP Lake remains eligible for funding for the “Elderly” demographic.) Sierra Bay and Northside II: In the scoring process, Florida Housing erroneously awarded Sierra Bay proximity points for Transit Services. Upon further review, Sierra Bay should have received zero proximity points. Consequently, Sierra Bay’s application is ineligible for funding under RFA 2017-108. By operation of the provisions of RFA 2017-108, Florida Housing should have selected Northside II (the next highest ranked, eligible applicant) for funding to meet the Elderly, Large County, New Construction Goal. Florida Housing represents that Northside II is fully eligible for funding under RFA 2017-108. Harbour Springs: Florida Housing initially deemed Harbour Springs eligible for funding under RFA 2017-108 and selected it to meet the Family, Large County, New Construction Goal. However, because Harbour Springs and Woodland Grove are owned by the same entity and applied using the same development site, under rule 67-48.004(1), Harbour Springs is ineligible for funding. (Florida Housing’s selection of Woodland Grove for funding for the Family, Large County, New Construction Goal, is not affected by this determination.) The sole disputed issue of material fact concerns Liberty Square’s challenge to Florida Housing’s selection of Woodland Grove to meet the Family, Large County Goal. Liberty Square and Woodland Grove applied to serve the same demographic population under RFA 2017-108. If Liberty Square successfully challenges Woodland Grove’s application, Liberty Square, as the next eligible applicant, will be selected for funding to meet the Family, Large County Goal instead of Woodland Grove. (At the hearing on December 8, 2017, Florida Housing’s Board of Directors awarded Woodland Grove $7,600,000 in funding.) The focus of Liberty Square’s challenge is the information Woodland Grove provided in response to RFA 2017-108, Section Four, A.5.d., entitled “Latitude/Longitude Coordinates.” Liberty Square argues that Woodland Grove’s application is ineligible because its Development Location Point, as well as the locations of its Community Services and Transit Services, are inaccurate. Therefore, Woodland Grove should have received zero “Proximity” points which would have disqualified its application for funding. RFA 2017-108, Section Four, A.5.d(1), states, in pertinent part: All Applicants must provide a Development Location Point stated in decimal degrees, rounded to at least the sixth decimal place. RFA 2017-108 set forth scoring considerations based on latitude/longitude coordinates in Section Four, A.5.e, entitled “Proximity.” Section Four, A.5.e, states, in pertinent part: The Application may earn proximity points based on the distance between the Development Location Point and the Bus or Rail Transit Service . . . and the Community Services stated in Exhibit A. Proximity points will not be applied to the total score. Proximity points will only be used to determine whether the Applicant meets the required minimum proximity eligibility requirements and the Proximity Funding Preference ” In other words, the Development Location Point identified the specific location of an applicant’s proposed housing site.7/ Applicants earned “proximity points” based on the distance between its Development Location Point and selected Transit and Community Services. Florida Housing also used the Development Location Point to determine whether an application satisfied the Mandatory Distance Requirement under RFA 2017-108, Section Four A.5.f. To be eligible for funding, all applications had to qualify for the Mandatory Distance Requirement. The response section to Section Four, A.5.d., is found in Exhibit A, section 5, which required each applicant to submit information regarding the “Location of proposed Development.” Section 5 specifically requested: County; Address of Development Site; Does the proposed Development consist of Scattered Sites?; Latitude and Longitude Coordinate; Proximity; Mandatory Distance Requirement; and Limited Development Area. Section 5.d. (Latitude and Longitude Coordinates) was subdivided into: (1) Development Location Point Latitude in decimal degrees, rounded to at least the sixth decimal place Longitude in decimal degrees, rounded to at least the sixth decimal place In its application, Woodland Grove responded in section 5.a-d as follows: County: Miami-Dade Address of Development Site: NE corner of SW 268 Street and 142 Ave, Miami-Dade, FL 33032. Does the proposed Development consist of Scattered Sites? No. Latitude and Longitude Coordinate; Development Location Point Latitude in decimal degrees, rounded to at least the sixth decimal place: 25.518647 Longitude in decimal degrees, rounded to at least the sixth decimal place: 80.418583 In plotting geographic coordinates, a “-” (negative) sign in front of the longitude indicates a location in the western hemisphere (i.e., west of the Prime Meridian, which is aligned with the Royal Observatory, Greenwich, England). A longitude without a “-” sign places the coordinate in the eastern hemisphere. (Similarly, a latitude with a negative value is south of the equator. A latitude without a “-” sign refers to a coordinate in the northern hemisphere.) As shown above, the longitude coordinate Woodland Grove listed in section 5.d(1) did not include a “-” sign. Consequently, instead of providing a coordinate for a site in Miami-Dade County, Florida, Woodland Grove entered a Development Location Point located on the direct opposite side of the planet (apparently, in India). At the final hearing, Florida Housing (and Woodland Grove) explained that, except for the lack of the “-” sign, the longitude Woodland Grove recorded would have fallen directly on the address it listed as its development site in section 5.b., i.e., the “NE corner of SW 268 Street and 142 Ave, Miami-Dade, FL 33032.” In addition to the longitude in section 5.d., Woodland Grove did not include a “-” sign before the longitude coordinates for its Transit Services in section 5.e(2)(b) or for any of the three Community Services provided in section 5.e(3). Again, without a “-” sign, the longitude for each of these services placed them in the eastern hemisphere (India) instead of the western hemisphere (Miami-Dade County). In its protest, Liberty Square contends that, because Woodland Grove’s application listed a Development Location Point in India, Florida Housing should have awarded Woodland Grove zero proximity points under Section Four, A.5.e. Consequently, Woodland Grove’s application failed to meet minimum proximity eligibility requirements and is ineligible for funding. Therefore, Liberty Square, as the next eligible applicant, should be awarded funding for the Family, Large County Goal, under RFA 2017-108.8/ Liberty Square asserts that a correct Development Location Point is critical because it serves as the beginning point for assigning proximity scores. Waiving an errant Development Location Point makes the proximity scoring meaningless. Consequently, any such waiver by Florida Housing is arbitrary, capricious, and contrary to competition. At the final hearing, Woodland Grove claimed that it inadvertently failed to include the “-” sign before the longitude points. To support its position, Woodland Grove expressed that, on the face of its application, it was obviously applying for funding for a project located in Miami-Dade County, Florida, not India. In at least five places in its application, Woodland Grove specified that its proposed development would be located in Miami-Dade County. Moreover, several attachments to Woodland Grove’s application specifically reference a development site in Florida. Woodland Grove attached a purchase agreement for property located in Miami-Dade County (Attachment 8). To satisfy the Ability to Proceed requirements in RFA 2017-108, Woodland Grove included several attachments which all list a Miami-Dade address (Attachments 9-14). Further, Woodland Grove submitted a Local Government Verification of Contribution – Loan Form executed on behalf of the Mayor of Miami-Dade County, which committed Miami-Dade County to contribute $1,000,000.00 to Woodland Grove’s proposed Development (Attachment 15). Finally, to qualify for a basis boost under RFA 2017-108, Woodland Grove presented a letter from Miami-Dade County’s Department of Regulatory and Economic Resources, which also referenced the address of the proposed development in Miami-Dade County (Attachment 16). In light of this information, Woodland Grove argues that its application, taken as a whole, clearly communicated that Woodland Grove intended to build affordable housing in Miami-Dade County. Nowhere in its application, did Woodland Grove reference a project in India other than the longitude coordinates which failed to include “-” signs. Accordingly, Florida Housing was legally authorized to waive Woodland Grove’s mistake as a “harmless error.” Thus, Florida Housing properly selected the Woodland Grove’s development for funding to meet the Family, Large County Goal. Florida Housing advocates for Woodland Grove’s selection to meet the Family, Large County Goal, under RFA 2017- 108. Florida Housing considers the omission of the “-” signs before the longitude coordinates a “Minor Irregularity” under rule 67-60.002(6). Therefore, Florida Housing properly acted within its legal authority to waive, and then correct, Woodland Grove’s faulty longitude coordinates when scoring its application. In support of its position, Florida Housing presented the testimony of Marisa Button, Florida Housing’s current Director of Multifamily Allocations. In her job, Ms. Button oversees the Request for Applications process; although, she did not personally participate in the review, scoring, or selection decisions for RFA 2017-108. Ms. Button initially explained the process by which Florida Housing selected the 16 developments for funding under RFA 2017-108. Ms. Button conveyed that Florida Housing created a Review Committee from amongst its staff to score the applications. Florida Housing selected Review Committee participants based on the staff member’s experience, preferences, and workload. Florida Housing also assigned a backup reviewer to separately score each application. The Review Committee members independently evaluated and scored their assigned portions of the applications based on various mandatory and scored items. Thereafter, the scorer and backup reviewer met to reconcile their scores. If any concerns or questions arose regarding an applicant’s responses, the scorer and backup reviewer discussed them with Florida Housing’s supervisory and legal staff. The scorer then made the final determination as to each application. Ms. Button further explained that applicants occasionally make errors in their applications. However, not all errors render an application ineligible. Florida Housing is authorized to waive “Minor Irregularities.” As delineated in RFA 2017-108, Section Three, A.2.C., Florida Housing may waive “Minor Irregularities” when the errors do not provide a competitive advantage or adversely impact the interests of Florida Housing or the public. See Fla. Admin. Code R. 67- 60.002(6) and 67-60.008. Such was the case regarding Woodland Grove’s application. Heather Green, the Florida Housing staff member who scored the “Proximity” portion of RFA 2017-108, waived the inaccurate longitude coordinates as “Minor Irregularities.” Ms. Green then reviewed Woodland Grove’s application as if the proposed development was located in Miami-Dade County, Florida. Florida Housing assigned Ms. Green, a Multifamily Loans Manager, as the lead scorer for the “Proximity” portion of RFA 2017-108, which included the Development Location Point listed in Exhibit A, section 5.d. Ms. Green has worked for Florida Housing since 2003 and has scored proximity points for Request for Applications for over ten years. At the final hearing, Florida Housing offered the deposition testimony of Ms. Green. In her deposition, Ms. Green testified that she is fully aware that, to be located in the western hemisphere (i.e., Miami-Dade County), a longitude coordinate should be marked with a negative sign or a “W.” Despite this, Ms. Green felt that the longitude coordinates Woodland Grove used without negative signs, particularly its Development Location Point, were clearly typos or unintentional mistakes. Therefore, Ms. Green waived the lack of a negative sign in front of the longitude coordinates in section 5.d. and section 5.e. as “Minor Irregularities.” Ms. Green understood that she was authorized to waive “Minor Irregularities” by rule under the Florida Administrative Code. Ms. Green felt comfortable waiving the inaccurate longitude coordinates because everywhere else in Woodland Grove’s application specifically showed that its proposed housing development was located in Miami-Dade County, not India. Accordingly, when scoring Woodland Grove’s application, Ms. Green corrected the longitude entries by including a negative sign when she plotted the coordinates with her mapping software. Ms. Green then determined that, when a “-” was inserted before the longitude, the coordinate lined up with the address Woodland Grove listed for the Development Location Point. Therefore, Woodland Grove received proximity points and was eligible for funding under RFA 2017-108. (See RFA 2017-108, Section Five.A.1.) However, Ms. Green acknowledged that if she had scored the application just as it was presented, Woodland Grove would not have met the required qualifications for eligibility. Ms. Button relayed that Florida Housing fully accepted Ms. Green’s decision to waive the missing negative signs in Woodland Grove’s response to section 5.d. and 5.e. as “Minor Irregularities.” Ms. Button opined that Woodland Grove’s failure to place a “-” mark before the longitude was clearly an unintentional mistake. Ms. Button further commented that Florida Housing did not believe that scoring Woodland Grove’s development as if located in the western hemisphere (instead of India), provided Woodland Grove a competitive advantage. Because it was evident on the face of the application that Woodland Grove desired to develop a housing site in Miami-Dade County, Ms. Green’s decision to overlook the missing “-” sign did not award Woodland Grove additional points or grant Woodland Grove an advantage over other applicants. Neither did it adversely impact the interests of Florida Housing or the public. However, Ms. Button also conceded that if Ms. Green had scored the application without adding the “-” sign, Woodland Grove would have received zero proximity points. This result would have rendered Woodland Grove’s application ineligible for funding. Ms. Button also pointed out that Ms. Green waived the omission of “-” signs in two other applications as “Minor Irregularities.” Both Springhill Apartments, LLC, and Harbour Springs failed to include negative signs in front of their longitude coordinates. As with Woodland Grove, Ms. Green considered the development sites in those applications as if they were located in Miami-Dade County (i.e., in the western hemisphere). Ms. Green also waived a mistake in the Avery Commons application as a “Minor Irregularity.” The longitude coordinate for the Avery Commons Development Location Point (section 5.d(1)) was blank. However, Ms. Green determined that Avery Commons had placed the longitude in the blank reserved for Scattered Sites coordinates (section 5.d(2)). When scoring Avery Commons’ application, Ms. Green considered the coordinate in the appropriate section. According to Ms. Button, Florida Housing felt that this variation did not provide Avery Commons a competitive advantage. Nor did it adversely impact the interests of Florida Housing or the public. Finally, Ms. Button explained that the application Florida Housing used for RFA 2017-108 was a relatively new format. In previous Request For Applications, Florida Housing required applicants to submit a Surveyor Certification Form. On the (now obsolete) Surveyor Certification Form, Florida Housing prefilled in an “N” in front of all the latitude coordinates and a “W” in front of all the longitude coordinates. However, the application used in RFA 2017-108 did not place an “N” or “W” before the Development Location Point coordinates. Based on the evidence presented at the final hearing, Liberty Square did not establish, by a preponderance of the evidence, that Florida Housing’s decision to award funding to Woodland Grove for the Family, Large County Goal, under RFA 2017-108 was clearly erroneous, contrary to competition, arbitrary, or capricious. Florida Housing was within its legal authority to waive, then correct, the missing “-” sign in Woodland Grove’s application as “Minor Irregularity.” Therefore, the undersigned concludes, as a matter of law, that Petitioner did not meet its burden of proving that Florida Housing’s proposed action to select Woodland Grove for funding was contrary to its governing statutes, rules or policies, or the provisions of RFA 2017-108.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida Housing Finance Corporation enter a final order dismissing the protest by Liberty Square. It is further recommended that Florida Housing Finance Corporation rescind the intended awards to Sierra Bay, SP Lake, and Harbour Springs, and instead designate Northside II, Osprey Pointe, and Pembroke Tower Apartments as the recipients of funding under RFA 2017-108.10/ DONE AND ENTERED this 19th day of April, 2018, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 19th day of April, 2018.
The Issue The issue in this proceeding is whether the petition to establish the Sampson Creek Community Development District meets the applicable criteria set forth in Chapter 190, Florida Statutes, and Chapter 42-1, Florida Administrative Code.
Findings Of Fact Petitioner is seeking the adoption of a rule by the Commission to establish the Sampson Creek Community Development District. The proposed District consists of approximately 1,015 acres located within unincorporated St. Johns County, Florida. There are two out-parcels, totaling 3.7 acres, within the areas to be included in the District. No adverse impact on these out parcels is expected from the establishment of the district. The estimated cost of the infrastructure facilities and services which are presently expected to be provided to the lands within the District was included in the Petition. Petitioner's Composite Exhibit 1 was identified for the record as a copy of the Petition and its exhibits as filed with the Commission. Witnesses Maier, Walters, Boring, and Fishkind each stated that he had reviewed portions of the contents of the petition and its attachments and affirmed the petitions findings. Witness Maier testified that the Petitioner has written consent to establish the District from the owners of one hundred percent of the real property located within the lands to be included in the District. Witness Maier also presented deeds for parcels of land within the boundaries of the proposed District which have been acquired by the Petitioner or its subsidiaries, as well as consent forms from the Petitioner's subsidiaries. The Petition and its attached exhibits are true and correct, with the addition of the deeds showing land ownership and owners' consent as specified above. Witnesses Walters and Fishkind reviewed the proposed District in light of the requirements of the State Comprehensive Plan, Chapter 187, Florida Statutes. Witness Walters also reviewed the proposed District in light of the requirements of the St. Johns County Comprehensive Plan. From a planning and economic perspective, four subjects, subject 16, 18, 21, and 26, of the State Comprehensive Plan apply directly to the establishment of the proposed District as do the policies supporting those subjects. Subject 16, titled Land Use, of the State Comprehensive Plan recognizes the importance of locating development in areas with the fiscal ability and service capacity to accommodate growth. The proposed District will: have the fiscal capability to provide a wide range of services and facilities to the population in the designated growth area; help provide infrastructure to development the County, thereby helping limit unintended, unplanned sprawl; facilitate the delivery of infrastructure and services to assist in fulfilling the community plan. Subject 18, titled Public Facilities of the State Comprehensive Plan provides that the state shall protect substantial investments in public facilities and plan for and finance new facilities to serve residents in a timely, orderly and efficient manner. The proposed District will be consistent with this element because the District will: plan and finance the infrastructure systems and facilities needed for the development of lands within the District in a timely, orderly, and efficient manner; provide the infrastructure systems and facilities within the District with the landowners and residents benefiting from the new public facilities bearing the costs associated with construction, operation, and maintenance of the facilities; act in a type of 'infrastructure partnership' with St. Johns County; have financial self-sufficiency through the use of special assessments, as well as user charges or fees, to provide public facilities; provide a consistent, innovative and fiscally sound alternative for financing public facilities by bringing the cost of managing and financing public facilities down to a level of government closest to its beneficiaries and connecting those who pay for facilities with those who directly benefit from those facilities and services; and be structured to assure secure revenue sources capable of meeting District responsibilities. Subject 21, titled Governmental Efficiency of the State Comprehensive Plan provides that governments shall economically and efficiently provide the amount and quality of services required by the public. The proposed District will be consistent with this element because the proposed District will: cooperate with other levels of Florida government, such as through entering into interlocal agreement to address maintenance issues for certain roads; be established under uniform general law standards as specified in Chapter 190, Florida Statutes; be professionally managed, financed, and governed by those whose property directly receives the benefits; not burden the general taxpayer with costs for services or facilities inside the District; and plan and implement cost efficient solutions for the required public infrastructure and assure delivery of selected services to residents. Subject 26, titled Plan Implementation of the State Comprehensive Plan, provides that systematic planning shall be integrated into all levels of government, with emphasis on intergovernmental coordination and citizen involvement. The proposed District is consistent with this element of the State Comprehensive Plan because: the proposed District will systematically plan for the construction, operation and maintenance of the public improvements and the community facilities authorized under Chapter 190, Florida Statutes, subject to and not inconsistent with the local government comprehensive plan and land development regulations; the District meetings are publicly advertised and are open to the public so that all District property owners and residents can be involved in planning for improvements; Section 189.415, Florida Statutes, requires the District to file and update public facilities reports with the County, which it may rely upon in any revisions to the local comprehensive plan. Based on the testimony and exhibits in the record, the proposed District will not be inconsistent with any applicable element or portion of the State Comprehensive Plan. Witness Walters testified that since St. Johns County has already found the development within the proposed District to be not inconsistent with the St. Johns County local comprehensive plan, the establishment of a community development district would not cause any inconsistency and would be in furtherance of four of the plan's policies, goals and objectives: Policy H.1.3.4 of the St. Johns County Comprehensive Plan states that 'DRI's planned unit subdivisions, and other large developments shall provide for the dedication of parks and open space to be generated by the development according to the level of service standards.' The proposed District will finance the construction of, and ultimately own and maintain, a community recreational facility. Goal J.1 of the St. Johns County Comprehensive Plan states that St. Johns County is to ensure the orderly and efficient provision of infrastructure facilities and services such as roads, utilities, recreation, and drainage. The proposed District will serve as an alternative provider of these infrastructure systems and services to meet the needs of the lands within its boundaries; Objective J.1.7 of the St. Johns County Comprehensive Plan states that the County shall manage fiscal resources to ensure the provision of needed infrastructure. The proposed District will provide the infrastructure facilities and services needed for its lands without burdening the fiscal resources of the County or impacting the bonding limits contained in Policy J.1.7.; Objective K.1.6 of the St. Johns County Comprehensive Plan calls for St. Johns County to work cooperatively with other units of government to address issues and concerns. The proposed District may be expected to enter into interlocal agreements with the County to provide certain enhanced maintenance. Additionally, over the long term, the establishment of the proposed District will provide another unit of local government in place and able to cooperate with the County on future issues and concerns. The State of Florida Department of Community Affairs also reviewed the petition to establish the proposed District and concluded that the petition was consistent with the local comprehensive plan. Based on the evidence in the record, the proposed District will not be inconsistent with any applicable element or portion of the local comprehensive plan, and will in fact further the goals provided. Most of the land in the proposed District is part of a planned community included in a Planned Unit Development (PUD) approval issued by St. Johns County. The PUD was approved on February 10, 1998. The PUD is found in St. Johns County Ordinance No. 98-7. Section 6 of the PUD Application, which is incorporated into Ordinance 98-7 by reference, explicitly states that a community development district will be established and requires the establishment of the District prior to the sale of the first lot within the development. Petitioner is developing all of the lands within the District as a single master-planned community. Witness Walters testified that functional interrelation means that each community purpose has a mutual reinforcing relationship with each of the community's other purposes. Each function requires a management capability, funding source and an understanding of the size of the community's needs, so as to handle the growth and development of the community. Each function must be designed to contribute to the development or the maintenance of the community. The size of the District as proposed is approximately 1,105 acres. From a planning perspective, this is a sufficient size to accommodate the basic infrastructure facilities and services typical of a functionally interrelated community. Compactness relates to the location in distance between the lands and land uses within a community. The community is sufficiently compact to be developed as a functionally inter-related community. The compact configuration of the lands will allow the District to provide for the installation and maintenance of its infrastructure facilities in a long-term cost efficient manner. The property is sufficiently contiguous when all parts of a project are either in actual contact or are close enough to allow the efficient design and use of infrastructure. The proposed District is sufficiently contiguous for planning purposes and for the purpose of district governance. The size of the proposed community within the District provides a sufficient economic base to absorb the debt costs and annual operating costs for the proposed District. There will be no economic disincentives to the provision of the infrastructure facilities contemplated. From planning, economics, engineering, and management perspectives, the area of land to be included in the proposed District is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developed as a single functionally interrelated community. It is presently intended that the District will participate in the construction or provision of certain infrastructure improvements as outlined in the petition. Installation and maintenance of infrastructure systems and services by the District is expected to be financed by bonds and repaid through the imposition of special assessments on benefited property within the District. Use of such assessments will ensure that the real property benefiting from District services is the same property which pays for them. Two types of alternatives to the use of the proposed District were identified. First, the County might provide facilities and services from its general fund or through a MSTU. Second, facilities and services might be provided by some private means, without public bidding, with maintenance delegated to a homeowners association (HOA). The District exceeds the available alternatives at focusing attention to when and where and how the next system of infrastructure will be required. This results in a full utilization of existing facilities before new facilities are constructed and reduces the delivered cost to the citizens being served. Only a community development district allows for the independent financing, administration, operations, and maintenance of the land within such a district. Only a community development district allows district residents to completely control the district. All of the other alternatives do not have these characteristics. From an engineering perspective, the proposed District is the best alternative to provide the proposed community development services and facilities because it is a long-term stable, perpetual entity capable of maintaining the facilities over their expected life. From planning, economic, engineering, and special district management perspectives, the proposed District is the best alternative available for delivering community development services and facilities to the are that will be served by the District. The services and facilities proposed to be provided by the District are not incompatible with uses and existing local and regional facilities and services. The District's facilities and services within the proposed boundaries will not duplicate any existing regional services or facilities which are provided to the lands within the District by another entity. None of the proposed services or facilities are presently being provided by another entity for the lands to be included within the District. Therefore, the community development services and facilities of the proposed district will not be incompatible with the capacity and uses of existing local and regional community development services and facilities. As cited previously, from planning, economics, engineering, and special district management perspectives, the area of land to be included in the proposed District is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developed and become a functionally interrelated community. The lands to be included within the proposed District have a need for the basic infrastructure being provided. From an engineering perspective, the area within the proposed District is also large enough to support a staff necessary to operate and maintain the proposed infrastructure systems and facilities. Based upon these characteristics, the proposed District is expected to be financially viable. From planning, engineering, economic, and management perspectives, the area that will be served by the intended District is amenable to separate special-district government. Chapter 190, Florida Statutes, and Chapter 42-1, Florida Administrative Code, impose specific requirements regarding the petition and other information to be submitted to the Commission. Section 190.005(1)(a), Florida Statutes, requires the petition to contain a metes and bounds description of the external boundaries of the District. Petitioner's Composite Exhibit 1 contains such a description. Section 190.005(1)(a)1, Florida Statutes, also requires a description of any real property within the external boundaries which is to be excluded from the District and the last known address of the owners of such properties. Petitioner's Composite Exhibit 1 contains the required information. Section 190.005(1)(a), Florida Statutes, requires that the petition contain the proposed timetable for the construction of any district services and the estimated construction costs for those services as well as the designation of the future general distribution, location, and extent of public and private land uses proposed for the area by the future land use element of the adopted local government comprehensive plan. Petitioner's Composite Exhibit 1 contains this information. Section 190.005(1)(a), Florida Statutes, requires the petition to contain written consent to establishment of the District by the owners of one-hundred percent of the real property to be included within the proposed District. Petitioner's Composite Exhibit 1 contains this information which was supplemented by Petitioner at hearing, as it or its subsidiaries acquired title to the lands proposed to be included within the District. Sections 190.005 and 190.006, Florida Statutes, require that each member of a board of supervisors be a resident of Florida and a citizen of the United States. The proposed board members meet these criteria. Section 109.005(1)(a), Florida Statutes, requires the petition to include a Statement of Estimated Regulatory Costs (SERC), which meets the requirements of Section 120.541, Florida Statutes. The petition contains a SERC. It meets all requirements of Section 120.541, Florida Statutes. The SERC contains an estimate of the costs and benefits to all persons directly affected by the proposed rule to establish the District -- the State of Florida and its citizens, the country and its citizens, Petitioner, and consumers. Beyond administrative costs related to rule adoption, the State and its citizens will only incur minimal costs from establishing the District. These costs are related to the incremental costs to various agencies of reviewing one additional local government report. The proposed District will require no subsidies from the State. Benefits will include improved planning and coordination of development, which is difficult to quantify but is nonetheless substantial. Administrative costs incurred by the County related to rule adoption should be minimal. Benefits to the County will include improved planning and coordination of development, without incurring any administrative or maintenance burden for facilities and services within the proposed District except for those it chooses to accept. Consumers will pay non-ad valorem or special assessments for certain facilities. Location within the District is voluntary. Generally, District financing will be less expensive than maintenance through a property owners' association or capital improvements financed through developer loans. Benefits to consumers in the area within the community development district will include a higher level of public services and amenities than might otherwise be available, completion of District-sponsored improvements to the area on a timely basis, and a larger share of direct control over community development services and facilities within the area. Petitioner has complied with the provisions of Section 190.005(1)(b), Florida Statutes, in that St. Johns County was paid the requisite filing fees. Section 190.005(1)(d), Florida Statutes, requires the Petitioner to publish notice of the local public hearing in a newspaper of general circulation in St. Johns County for four consecutive weeks prior to the hearing. The notice was published in a newspaper of general paid circulation in St. Johns County (the St. Augustine Record) for four consecutive weeks on March 13, 2000, March 20, 2000, March 27, 2000, and April 3, 2000. All publications were prior to the hearing. Mr. Stephenson, on behalf of the County's community development district processing group formed in accordance with Section 5.06.00 of the St. Johns County Land Development Code, presented the following proposed findings regarding the approval of the development within the proposed District: On October 28, 1999, the St. Johns County Board of County Commissioners entered into an Impact Fee Agreement with St. Joe Residential Acquisitions, Inc., and A & S Land Development Company to widen a portion of CR 210 in order to meet concurrency requirements for two projects. St. Joe Residential Acquisitions, Inc. is the developer of the property contained within the Sampson Creek CDD Petition. The project is approved with a Planned Unit Development (PUD) zoning and contains 799 single family residential dwelling units and associated roadways, retention areas, common areas, sales and recreation complex, and an 18-hole golf course. St. Johns County Board of County Commissioners approved the PUB on February 10, 1998. The PUD provides that a CDD will be established and will be in place prior to the sale of the first lot so that purchasers will be aware of their participation and membership in the CDD and of their obligation to pay any taxes that may be levied by the CDD. The PUD and Impact Fee Agreement are separate County approved documents and the creation and operation of a CDD does not in any way affect these documents or their approval without further review by the St. Johns County Board of Commissioners. Impact fee credits shall be awarded in accordance with approved Impact Fee Agreement which ensures that the credits are awarded to the appropriate entity. The CDD processing group finds no inconsistencies with the six factors as described in Section 190.005(6), Florida Statutes. With these findings, Mr. Stephenson testified that St. Johns County has no objection to the establishment of the proposed District.
Conclusions On Monday April 10, 2000, at 10:00 a.m., the local public hearing for the Petition to Establish the Sampson Creek Community Development District was held before Administrative Law Judge Diane Cleavinger, at the St. Johns County Public Library, 950 Davis Pond Boulevard, in St. Johns County, Florida. The hearing was conducted pursuant to Section 190.005, Florida Statutes, for the purpose of taking testimony, public comment, and receiving exhibits on the petition of the St. Joe/Arvida Company, L.P. (Petitioner) to establish the Sampson Creek Community Development District (District) in northern St. Johns County, Florida. This report is prepared and submitted to the Florida Land and Water Adjudicatory Commission (Commission) pursuant to Section 190.005, Florida Statutes.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Governor and Cabinet, sitting as the Florida Land and Water Adjudicatory Commission, pursuant to Chapters 120, and 190, Florida Statutes, and Chapter 42-1, Florida Administrative Code, establish the Sampson Creek Community Development District as requested by Petitioner by formal adoption of the proposed rule, after inclusion of the legal description, in substantially the form attached to this Report of Findings and Conclusions as Attachment 3. DONE AND ENTERED this 16th day of May, 2000, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of May, 2000. COPIES FURNISHED: Jonathan T. Johnson, Esquire Carolyn S. Raepple, Esquire Hopping, Green, Sams & Smith, P.A. 123 South Calhoun Street Post Office Box 6526 Tallahassee, Florida 32314 Daniel Woodring, Esquire Florida Land and Water Adjudicatory Commission The Capitol, Suite 2105 Tallahassee, Florida 32399 Donna Arduin, Secretary Florida Land and Water Adjudicatory Commission The Capitol, Suite 1601 Tallahassee, Florida 32399 Barbara Leighty, Clerk Growth Management and Strategic Planning The Capitol, Suite 2105 Tallahassee, Florida 32399 Carol Licko, General Counsel Office of the Governor The Capitol, Suite 209 Tallahassee, Florida 32399-0001
The Issue The issue before the Florida Land and Water Adjudicatory Commission (FLWAC) is whether to grant the Petition to Establish the Madeira Community Development District (Petition). The local public hearing was for the purpose of gathering information in anticipation of quasi-legislative rulemaking by FLWAC.
The Issue 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 issues in these cases are whether two community development district petitions should be granted: the first, a Petition to Contract Lakewood Ranch Community Development District 2; and the second, a Petition to Establish Rule [sic] for Lakewood Ranch Community Development District 5.
Conclusions Under Section 190.003(6), Florida Statutes (2000), a "community development district" (CDD) is "a local unit of special-purpose government which is created pursuant to this act and limited to the performance of those specialized functions authorized by this act; the boundaries of which are contained wholly within a single county; the governing head of which is a body created, organized, and constituted and authorized to function specifically as prescribed in this act for the delivery of urban community development services; and the formation, powers, governing body, operation, duration, accountability, requirements for disclosure, and termination of which are as required by general law." (All of the following statutory citations are to the year 2000 codification of the Florida Statutes.) Sections 190.006 through 190.046 constitute the uniform general law charter of all CDDs, which can be amended only by the Florida Legislature. Section 190.011 enumerates the general powers of CDDs. These powers include the power of eminent domain inside the district and, with the approval of the governing body of the applicable county or municipality, outside the district for purposes related solely to water, sewer, district roads, and water management. Section 190.012 lists special powers of CDDs. Subject to the regulatory power of all applicable government agencies, CDDs may plan, finance, acquire, construct, enlarge, operate, and maintain systems, facilities, and basic infrastructures for: water management; water supply, sewer, and wastewater management; needed bridges and culverts; CDD roads meeting minimum county specifications, street lights, and certain mass transit facilities; investigation and remediation costs associated with cleanup of environmental contamination; conservation, mitigation, and wildlife habitat areas; and certain projects within or without the CDD pursuant to development orders from local governments. After obtaining the consent of the applicable local government, a CDD may have the same powers with respect to the following "additional" systems and facilities: parks and recreation; fire prevention; school buildings; security; mosquito control; and waste collection and disposal. Section 190.046(1) provides for the filing of a petition for contraction of a CDD. Under paragraphs (f) and (g) of Section 190.046(1), petitions to contract a CDD by more than 250 acres "shall be considered petitions to establish a new district and shall follow all of the procedures specified in s. 190.005." Section 190.005(1)(a) requires that the petition to establish a CDD be filed with FLAWAC and submitted to the County. The petition must describe by metes and bounds the proposed area to be serviced by the CDD with a specific description of real property to be excluded from the district. The petition must set forth that the petitioner has the written consent of the owners of all of the proposed real property in the CDD, or has control by "deed, trust agreement, contract or option" of all of the proposed real property. The petition must designate the five initial members of the Board of Supervisors of the CDD and the district’s name. The petition must contain a map showing current major trunk water mains and sewer interceptors and outfalls, if any. Both the petition to contract District 2 and the petition to establish District 5 meet those requirements. Section 190.005(1)(a) also requires that the petition propose a timetable for construction and an estimate of construction costs. The petition must designate future general distribution, location, and extent of public and private uses of land in the future land-use element of the appropriate local government. The petition must also contain a Statement of Estimated Regulatory Cost. Both the petition to contract District 2 and the petition to establish District 5 meet those requirements. Section 190.005(1)(a) also requires the petitioner to provide a copy of the local government’s growth management plan (the local government comprehensive plan). District 2 and SMR have done so. Section 190.005(1)(b) requires that the petitioner pay a filing fee of $15,000 to the county and to each municipality whose boundaries are within or contiguous to the CDD. The petitioner must serve a copy of the petition on those local governments, as well. District 2 and SMR have met those requirements. Section 190.005(1)(c) permits the county and each municipality described in the preceding paragraph to conduct an optional public hearing on the petition. Such local governments may then present resolutions to FLAWAC as to the proposed property for the CDD. Manatee County has exercised this option and has adopted a resolution in support of the contraction of District 2 and establishment of District 5. Section 190.005(1)(d) requires a DOAH ALJ to conduct a local public hearing pursuant to Chapter 120, Florida Statutes. The hearing "shall include oral and written comments on the petition pertinent to the factors specified in paragraph (e)." Section 190.005(1)(d) specifies that the petitioner must publish notice of the local public hearing once a week for the four successive weeks immediately prior to the hearing. District 2 and SMR have met those requirements. Under Section 190.005(1)(e), FLAWAC must consider the following factors in determining whether to grant or deny a petition for the establishment of a CDD: Whether all statements contained within the petition have been found to be true and correct. Whether the establishment of the district is inconsistent with any applicable element or portion of the state comprehensive plan or of the effective local government comprehensive plan. Whether the area of land within the proposed district is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developable as one functional interrelated community. Whether the district is the best alternative available for delivering community development services and facilities to the area that will be served by the district. Whether the community development services and facilities will be incompatible with the capacity and uses of existing local and regional community development services and facilities. Whether the area that will be served by the district is amenable to separate special-district government. Factor 1 Some statements in the original petition to contract District 2 were not true and correct and had to be revised. As revised, all statements in the petition were shown by the evidence to be true and correct. All statements in the petition to establish District 5 were shown by the evidence to be true and correct. There was no evidence to the contrary. Factor 2 In these cases, the evidence was that the proposed contraction of District 2 and establishment of District 5 are not inconsistent with any applicable element or portion of the state comprehensive plan or of the local government comprehensive plan. There was no evidence to the contrary. (A different and more detailed review is required to determine that future development within the proposed CDDs will be consistent with all applicable laws and local ordinances and the Manatee County Comprehensive Plan. Establishment of a CDD does not constitute and should not be construed as a development order or any other kind of approval of the development anticipated in the CDD. Such determinations are made in other proceedings.) Factor 3 In these cases, the evidence was that the areas of land within District 2, as proposed to be contracted, and within proposed District 5 are of sufficient size, are sufficiently compact, and are sufficiently contiguous for each proposed CDD to be developable as a functional, interrelated community. There was no evidence to the contrary. Factor 4 In these cases, the evidence was that District 2, as proposed to be contracted, and proposed District 5 are the best alternatives available for delivering community development services and facilities to the areas that will be served by those two proposed CDDs. There was no evidence to the contrary. Factor 5 In these cases, the evidence was that the proposed community development services and facilities will not be incompatible with the capacity and uses of existing local and regional community development services and facilities. There was no evidence to the contrary. Factor 6 In these cases, the evidence was that the areas to be served by District 2, as proposed to be contracted, and proposed District 5 are amenable to separate special-district government. There was no evidence to the contrary. REPORT AND CONCLUSIONS SUBMITTED this 22nd day of January, 2001, in Tallahassee, Leon County, Florida. ___________________________________ J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of January, 2001. COPIES FURNISHED: Erin McCormick Larrinaga, Esquire Fowler, White, Gillen, Boggs, Villareal and Banker, P.A. Post Office Box 1438 Tampa, Florida 33601-1438 Jose Luis Rodriguez, Esquire Governor's Legal Office The Capital, Room 209 Tallahassee, Florida 32399-0001 Donna Arduin, Secretary Florida Land and Water Adjudicatory Commission Executive Office of the Governor 2105 The Capitol Tallahassee, Florida 32399 Barbara Leighty, Clerk Growth Management and Strategic Planning The Capitol, Suite 2105 Tallahassee, Florida 32399 Charles Canaday, General Counsel Office of the Governor Department of Legal Affairs The Capitol, Suite 209 Tallahassee, Florida 32399-0001
The Issue The issue 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 Does the Petition to establish the Lakewood Ranch Community Development District 2 meet the 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 establish a community development district (CDD or District) of approximately 2,080 acres, located entirely within the unincorporated area of Manatee County. The proposed District will be located generally south of the Braden River, north of the Manatee/Sarasota County line, and east of I-75, within the unincorporated area of Manatee County. The proposed District will be eligible to exercise all powers set forth in Chapter 190, Florida Statutes, including, but not limited to, the ability to finance, own, operate and maintain certain community facilities and services. The special powers set forth in Section 190.012(2) (a-f), Florida Statutes, may be exercised with the consent of Manatee County, and pursuant to an Interlocal Agreement. Currently, the land uses in the area to be included in the proposed district are primarily agricultural (improved pasture). A former borrow pit which has been almost totally reclaimed into a lake also exists on-site. Existing land uses adjacent to the proposed District include: agricultural/shell mining/polo club to the south; vacant/agricultural to the west; a golf course community to the northwest; vacant/agricultural and residential to the north; and asphalt processing plant/agricultural to the east. All of the land to be included in the proposed District is included in either the University Lakes Development of Regional Impact (DRI) or the Cypress Bank DRI, except for approximately fifteen to twenty acres. This additional acreage has been included in the proposed District boundaries to bring that property which will be used as right of way for a future thoroughfare within the District. The existing land uses within the proposed District are consistent with the adopted Manatee County Comprehensive Plan. The future general distribution, location and extent of land uses proposed for the District are included in the Applications for Development Approval for the Cypress Banks DRI and the University Lakes DRI, and generally include residential, recreational, community-serving commercial and business/office uses. The Development Orders for these DRIs indicate that the development within the proposed District is consistent with the Manatee County Comprehensive Plan. The Petitioner currently intends for the District to construct or otherwise provide for a water management and control system; water supply systems; sewer; wastewater management, reclamation and reuse systems; bridges and culverts; district roads and street lighting. With Manatee County's consent, and pursuant to an Interlocal Agreement, the proposed District may also exercise other special powers, as authorized under Section 190.012(2), Florida Statutes, for the purpose of providing parks and facilities for indoor and outdoor recreational, cultural, and educational uses; fire prevention and control; school buildings and related structures; security; mosquito control; waste collection and disposal. Once completed, some of the facilities will be owned, operated, and/or maintained by the District. Some facilities may be dedicated to other governmental entities, which will operate and maintain them. The Petitioner intends for the District to maintain roadways until dedicated to and accepted by Manatee County or some other governmental entity, at which time the County or other governmental entity will assume maintenance responsibility. A non-potable water system to be utilized for irrigation purposes will be owned, operated and maintained by the District. The estimated cost in 1994 dollars for all identified capital improvements is $58,599,791, with construction scheduled to take place from 1995 through 2003. The Petitioner expects that the District will issue bonds to be used exclusively to provide the capital to construct and to acquire the planned infrastructure. The bonds will be repaid from the proceeds of non-ad valorem assessments on all specifically benefited properties. Funds for District infrastructure operations and maintenance may also be generated through non-ad valorem assessments. The sole purpose of this proceeding was to consider the establishment of the District as proposed by the Petitioner. Summary of Evidence Statutory Criteria for the Establishment of the District. Section 190.005 (1)(e), Florida Statutes, requires the Commission to consider six factors in making its determination to grant or deny the Petition to establish the District. The evidence presented on these factors is summarized in the following paragraphs. Whether all statements contained within the Petition have been found to be true and correct. Petitioner's Composite Exhibit 12 was identified for the record as a copy of the Petition and its attachments, as filed with the Commission. Rex Jensen reviewed the contents of the Petition and the attached Exhibits, and approved its filing. Rex Jensen found that no changes or corrections were necessary. Michael Kennedy reviewed Exhibits 1, 2, 5, 6 and Table 1 to Exhibit 7 to the Petition, and found that no changes or corrections were necessary. Betsy Benac reviewed Exhibit 8 to the Petition and determined that there were amendments to Exhibit 8. The amendments to Exhibit 8 were admitted into evidence as Petitioner's Composite Exhibit 8. Petitioner's Composite Exhibit 8, as amended, is true and correct. Henry Fishkind reviewed Exhibit 7, and found it to be true and correct. With the change set forth in the Finding of Fact 13, all statements in the Petition and its attached exhibits were shown to be true and correct. Whether the creation of the District is inconsistent with any applicable element or portion of the State Comprehensive Plan or of the effective local government comprehensive plan. Betsy Benac reviewed the establishment of the proposed District from a planning perspective for consistency with the State Comprehensive Plan, Chapter 187, Florida Statutes, and the Manatee County Comprehensive Plan, adopted pursuant to Chapter 163, Part II, Florida Statutes. In addition, Henry Fishkind reviewed the establishment of the District from an economic perspective for consistency with the State and local comprehensive plans. Gary Moyer reviewed the establishment of the District from a management perspective for consistency with the State Comprehensive Plan. State Comprehensive Plan From a planning perspective, Goals 10, 16, 21, and 26 of the State Comprehensive Plan, and the policies supporting these goals are particularly relevant to the establishment of the District. Goals 18 and 21 and the policies supporting those goals are relevant to the establishment of the District from an economic perspective. Goal 21 is also relevant to the establishment of the District from a management perspective. Policy 13 under Goal 10, "Natural Systems and Recreational Lands," encourages the use of public and private financial resources for the development of state and local recreational opportunities. The District may, with the consent of Manatee County, provide community recreational facilities. Goal 16, "Land Use," recognizes the importance of locating development in areas with the fiscal ability and service capacity to accommodate growth. The District will have the fiscal ability and service capacity to efficiently provide an excellent quality and range of facilities and services to development in Manatee County. Goal 18, "Public Facilities," directs the State to protect the investments in public facilities that already exist, and to plan for and finance new facilities to serve residents in a timely and efficient manner. The District will provide facilities and services in a timely and efficient manner to the area within Manatee County to be served by the District, allowing the County to focus its resources outside the District and thus, provide facilities and services to County residents in a timely and efficient manner. The "Governmental Efficiency" goal, Goal 21, requires that Florida governments provide the services required by the public in an economic and efficient manner. The District will have the fiscal capability to provide quality public services to those who benefit from and pay for those services. The size and configuration of the District would allow for the delivery of these facilities in an efficient, cost-effective manner. In addition, because it is a limited- purpose local government, the District can provide focused delivery, management, and maintenance of these services more efficiently than a general- purpose government. Goal 26, "Plan Implementation," encourages the integration of systematic planning into all levels of government, with emphasis on intergovernmental coordination. The development plan for the District contemplates the delivery of improvements in coordination with the general- purpose local governments in the area. In addition, Section 189.415, Florida Statutes, requires the District to file annual Public Facilities Reports with Manatee County, which the County may use and rely on in its Comprehensive Plan. From a planning perspective, all decisions of the District are made at board meetings which are publicly noticed and open to the public, maximizing input from landowners and residents of the District. The establishment of the proposed District is not inconsistent with any applicable goal or policy of the State Comprehensive Plan. Local Comprehensive Plan From a planning perspective, the future Land Use Element, the Public facilities Element and the Intergovernmental Coordination Element of the Manatee County Comprehensive Plan relate specifically to the establishment of the District. From an economic perspective, the Comprehensive Plan generally requires that economic growth not burden other citizens or other units of local government. The proposed District will provide that assurance. The proposed district will provide the focused efficient and effective delivery of specific services to a defined group of county citizens. The Future Land Use Element and supporting policies provide that future land uses should be encouraged to locate in areas suited for such use, as measured by the level of public facility availability and investment. The proposed District will insure the investment necessary to provide the public facilities to handle the approved development potential of the District. The Public Facilities Element and supporting policies require that new growth pay its share of needed capital facilities, including the full cost of installation of all wastewater collection systems and water distribution systems. The proposed CDD will provide the funding for the installation of a wastewater collection system and a potable water system. The Intergovernmental Coordination Element and supporting policies require efficiency in service delivery through a government environment which is conducive to the efficient and effective provision of services to county citizens. The proposed district will provide the focused efficient and effective delivery of specific services to a defined group of county citizens. Nothing in the Local Comprehensive Plan precludes the establishment of a community development district. The establishment of the District is not inconsistent with any of the applicable goals, objectives, and policies of the Manatee County Comprehensive Plan. Whether the area of land within the District is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developable as one functional interrelated community. Testimony on this criterion was provided by Michael Kennedy, Betsy Benac, Gary Moyer, and Henry Fishkind. The lands that comprise the District consist of approximately 2,080 acres, located entirely within unincorporated Manatee County, and generally east of I-75 south of the Braden River, north of the Manatee/Sarasota County line. The land within the proposed District is all currently included within the approved University Lakes DRI and Cypress Banks DRI except for approximately 15 acres, which additional acreage was included in the proposed District boundaries so that property which will be used for right-of-way for a future thoroughfare is located within the District. The land within the proposed District is master planned to be a part of a functional, interrelated community with a balanced mix of uses to support the projected population. The area of land within the proposed District is bounded by major thoroughfare roads and the Braden River, and forms a compact and contiguous area creating a functionally interrelated community. From an engineering perspective, the property is sufficiently contiguous so that the proposed facilities and services can be designed, permitted, constructed, and maintained in a cost efficient, technically-sound manner. The proposed District is sufficiently contiguous to allow for the efficient, cost-effective, functional and integrated use of infrastructure. From a service delivery standpoint, the proposed District is designed to have sufficient population density and size to require all of the basic facilities and services of a community. The District will provide its residents and landowners the benefits of phasing the District's services over a time frame which takes advantage of the low cost of long-term capital, as well as providing economics of scale. From engineering, planning, economics, and management perspectives, the area of land to be included in the District is of sufficient size and is sufficiently compact and contiguous to be developed as a functional interrelated community. Whether the District is the best alternative available for delivering community development services and facilities to the area that will be served by the District. All five witnesses offered testimony on this criterion. It is presently intended that the District will fund the construction of water management and control systems; water supply; sewer; wastewater management reclamation and reuse systems; bridges and culverts; district roads; and street lighting. It may also, with the approval of the County, and pursuant to the Interlocal Agreement, construct parks and facilities for indoor and outdoor recreational, cultural, and educational uses; fire prevention and control; school buildings and related structures; security; mosquito control; waste collection and disposal. Once completed, certain of these improvements will be dedicated to other governmental entities to own, operate, and/or maintain. The proposed District will maintain roadways until dedicated and accepted by Manatee County or some other governmental entity, at which time that governmental entity will assume maintenance responsibility. It is expected that the District will issue bonds to finance these services and improvements. These bonds will be repaid from the proceeds of special assessments on benefited property within the District. Use of special assessments will ensure that those benefiting from District services help pay for those services. The following five alternatives for providing the necessary facilities and services to this were identified: (1) a municipal service taxing unit (MSTU)/municipal service benefit unit (MSBU) under Chapter 125, Florida Statutes; (2) a special assessment district under Chapter 125 or 189, Florida Statutes; (3) the County; (4) the Developer; or (5) a homeowners' association. In evaluating alternative methods for delivering community development facilities and services, factors to consider include whether an alternative is able to provide the best focused services and facilities; whether the alternative has an entity to manage the delivery of facilities and services; whether the alternative is a stable provider of facilities and services and can provide a long-term perspective; and whether the alternative can secure long- term financing to pay for all facilities and services at a sustained level of quality. Public Alternatives A MSTU/MSBU generally focuses on only one service or facility, which is not sufficient to serve the comprehensive development of a new community. It also requires County administration of the operation and maintenance of the infrastructure. Moreover, MSTU/MSBU debt is debt of the County, and MSTU/MSBU taxes count against the County's millage cap. The County would be relieved of direct administrative duties and costs related to the provision of the proposed facilities and services if the proposed District is established. In addition, District debt does not affect the County's borrowing capacity, and District taxes do not count against the County's millage cap. Although a dependent special district may provide more than one service or facility, it would still require County involvement, and dependent special district taxes would count against the County's millage cap. Debts incurred by a dependent special district are debts of the County, as are those of the MSTU/MSBU. In contrast, debts of a CDD are not debts of the County, and CDD taxes do not affect the County millage cap. The County, is not well equipped to address the special services and facility needs of individual communities. The responsibility for planning, financing, implementing and operations of the community would rest on the Board of County Commissioners. The County government is not set up to handle this kind of community-specific, long-range planning. If the County finds it difficult to deal with growth, it may divert attention and resources from existing communities to other areas where development is just starting. It is unlikely the County would be able to provide stable financing and management for facilities and services to the proposed District. Private Alternatives The District is also superior to the Developer or a Homeowners' Association in the provision of long-term financing of infrastructure. Neither the Developer nor a homeowner's association would have the power to levy and collect taxes. In contrast, the ability of the proposed District to obtain long-term, fixed rate financing is the least costly method of financing available in the current market. There would be no continuity of management functions. The developer would have responsibility for the planning, financing and implementing of the infrastructure and the homeowners association would manage and operate the infrastructure. This would limit the Developer's incentive to plan for contingencies during the operating and management phases. SMR Communities has experience in working with an existing CDD, and an officer of SMR Communities testified that the Lakewood Ranch CDD 1 has been successful in obtaining financing and constructing infrastructure for the planned residential community. SMR Communities expects that the proposed Lakewood Ranch CDD 2 will similarly benefit its landowners and residents in the years ahead, particularly as SMR Communities ceases to be the major landowner. None of the reasonable public or private alternatives provides the same cost- efficient, focused delivery and long-term maintenance and management of the proposed public facilities as would the District. The District is the best alternative available for delivering community services and facilities to the area. Whether the community development services and facilities of the District will be incompatible with the capacity and uses of existing local and regional community development services and facilities. Testimony on this criterion was provided by Michael Kennedy, Betsy Benac, Gary Moyer and Henry Fishkind. There is no planned duplication of facilities and services. There is a potable water main and a wastewater force main under construction by the County which will serve the proposed District. The District will supply the additional facilities and services necessary for development that are not provided by local general-purpose government or other governmental entities. The facilities to be constructed by the proposed District will be integrated with the existing facilities, and some of these facilities will be dedicated to Manatee County. Manatee County presently does not maintain a stormwater management system servicing the area within the proposed District. Given this area's location within a potable watershed, the long-term maintenance of the stormwater system is a critical component which will be provided by the District. The project infrastructure will be designed and constructed to State or County standards and must be consistent with the local comprehensive plan, building codes, and land development regulations. From engineering, planning, economic, and management perspectives, the services and facilities to be provided by the District will not be incompatible with the capacity and uses of existing local and regional community development services and facilities. Whether the area that will be served by the District is amenable to separate special-district government. Testimony on this criteria was provided by Michael Kennedy, Betsy Benac, Gary Moyer, and Henry Fishkind. From a planning perspective, the area to be served by the District requires basic infrastructure for development to occur. The District is of sufficient size and is sufficiently compact and contiguous to allow infrastructure to be provided and maintained in an efficient and cost effective manner. These services and infrastructure have been carefully planned to avoid duplication of existing local and regional facilities and services and to maximize efficiency of cost and effort to deliver such improvements. From an engineering perspective, having a separate unit of special- purpose government enhances the orderly provision of facilities and their long- term maintenance as well as the ability of the government to respond to the needs of the residents of the District. From a financial perspective, it is expected that the District will levy assessments and fees on the landowners and residents within the District who benefit from the improvements in order to fund the construction and maintenance of the improvements. The District will not be dependent on the County for funding, nor is the County liable for any obligations of the District. Therefore, it is more economically and functionally efficient to have a separate special-district government to manage the activities related to the improvements to the land within the District. From a management perspective, the proposed District requires basic infrastructure; is consistent with the State Comprehensive Plan; is sufficiently compact and contiguous and of sufficient size to allow for the provision and maintenance of infrastructure in an efficient, cost-effective manner; and is the best alternative for providing public facilities and services; therefore, it is amenable to separate, special-district government. From engineering, planning, economic, and management perspectives, the establishment of the District meets all of the statutory criteria in Section 190.005(l)(e), Florida Statutes. Public Comment on the Petition. Public comment was received at the public hearing. Mr. Arun Gade asked for clarification concerning the repayment of the bonds which the proposed District intends to issue. The bonds will be repaid by special assessments placed on the underlying, benefited property, by the District. The assessments will be paid by the owners of the property. Agency Comment on the Petition. The Secretary of the Commission distributed copies of the Petition to the Department of Community Affairs (DCA) and the Tampa Bay Regional Planning Council (TBRPC) and requested that these agencies review the Petition. By letter dated January 10, 1995, Secretary Linda Shelley of the DCA replied that the Department had completed its review of the Petition and had no objections to the proposed CDD. Secretary Shelley further stated that the development proposed for the area within the District had been reviewed and determined consistent with Chapters 163, Part II and 380.06, Florida Statutes The TBRPC responded to the Commission Secretary's request by letter dated January 6, 1995. The TBRPC stated that it had reviewed the Petition, and found it consistent with the approved Development Orders for the property located within the District. Other requirements imposed by statute or rule. Chapter 190, Florida Statutes, and Chapter 42-1, Florida Administrative Code, impose certain specific requirements set forth below regarding the Petition and other information to be submitted to the Commission. Elements of the Petition Section 190.005(1)(a)1., Florida Statutes, requires the Petition to contain a metes and bounds description of the external boundaries of the District. Petitioner's Composite Exhibit 12 contains such a description. This statutory section also requires that any property within the external boundaries of the District which is to be excluded from the District be specifically described. Petitioner's Composite Exhibit 12 includes this information. There is no real property located within the external boundaries of the proposed District which is to be excluded from the District. Section 190.005(1)(a)2., Florida Statutes, requires the Petition to contain the written consent to establishment of the District of the owners of 100 percent of the real property to be included in the District. Petitioner's Composite Exhibit 12 contains the written consent of Schroeder- Manatee Ranch, Inc., the owner of 100 percent of the real property to be included in the proposed District. Section 190.005(1)(a)3., Florida Statutes, requires the Petition to contain the names of the five persons, all residents of the State of Florida and citizens of the United States, who will serve on the initial Board of Supervisors. The five persons designated in the Petition, and their addresses are: Rex Jensen 7550 Lorraine Road Bradenton, Florida 34202 C. John Clarke 7550 Lorraine Road Bradenton, Florida 34202 Mary Fran Carroll 7550 Lorraine Road Bradenton, Florida 34202 Roger Hill 7550 Lorraine Road Bradenton, Florida 34202 Anthony Chiofalo 7550 Lorraine Road Bradenton, Florida 34202 All of the designees are residents of the State of Florida and citizens of the United States. Section 190.005(1)(a)4., Florida Statutes, requires that the Petition contain the proposed name for the District. The Petition provides that the proposed name of the District to be established is "Lakewood Ranch Community Development District 2". Section 190.005(1)(a)5., Florida Statutes, requires that the Petition show current major trunk water mains and sewer interceptors and outfalls, if in existence. Petitioner's Composite Exhibit 12 contains a map of the proposed District showing information concerning existing and proposed major trunk water mains, sewer interceptors, and outfalls. Section 190.005(1)(a)6., Florida Statutes, requires the Petition to set forth the proposed timetable for construction of services and facilities and the estimated cost for such construction. Petitioner's Composite Exhibit 12 contains this information in a table entitled "Lakewood Ranch Community Development District 2: Proposed Infrastructure Construction Cost Estimate and Timing". Section 190.005(1)(a)7., Florida Statutes, requires the Petition to designate the future general distribution, location and extent of public and private uses of land. This has been designated by the Future Land Use Plan Element of the Manatee County Comprehensive Plan. Petitioner's Composite Exhibit 12 provides this information. In addition, the future general distribution, location and extent of land uses for the proposed District were identified in the Applications for Development Approval for the Cypress Banks DRI and the University Lakes DRI. The Petition contains all information required by Section 190.005(i)(a)1.-7., Florida Statutes. Economic Impact Statement Section 190.005(1)(a)8., Florida Statutes, requires the Petition to include an economic impact statement (EIS) which meets the requirements of Section 120.54(2), Florida Statutes The EIS prepared by the Petitioner is attached to Petitioner's Composite Exhibit 12. The Petitioner's EIS meets the requirements of Sections 120.54(2)(c)1. and 120.54(2)(c)2., Florida Statutes, that an EIS include an estimate of the costs and benefits of the establishment of the District to all affected agencies and persons. It concludes that the economic benefits of establishing the District exceed the economic costs to all affected agencies and persons. Beyond administrative costs related to rule adoption and review of reports to be submitted by the District, the State and its citizens will incur no costs from establishment of the District. The District will require no subsidies from the State to fund District improvements. Benefits will include improved planning and coordination of development, as well as long-term professional management and maintenance of District facilities. Costs to Manatee County and its citizens for the establishment and operation of the District will be offset by the $15,000 filing fee and other fees paid by the Petitioner or the District. The County will not be responsible for the debt service on any bonds used to fund District improvements. Citizens of the County will receive the benefits of planned development, and the County will be relieved of the fiscal and administrative burden of providing the improvements provided by the District. The Petitioner will incur substantial costs to create the District and will pay substantial sums in non-ad valorem assessments as the largest landowner in the District in the initial stages of development. In addition, the Petitioner will provide most rights-of-way and easements. The Petitioner will benefit from the establishment of the District because of a more efficient cost of management of infrastructure, increased flexibility in meeting the demands of the marketplace, and tax exempt financing for infrastructure. Landowners within the District will pay District special assessments or fees for certain facilities; however, these facilities will be required for development regardless of the existence of the District. Benefits to these landowners/consumers will include a higher level of public services and amenities than might otherwise be available, completion of improvements provided by the District on a timely basis, and a share of control over decisions involving community development services and facilities. The EIS also meets the requirements of Sections 120.54(2)(c)3. and 120.54(2)(c)4., Florida Statutes, because the EIS includes an estimate of the impact of the proposed rule on competition, the open market for employment, and on small business, as defined in the Florida Small and Minority Business Assistance Act of 1985. The implementation of this rule is expected to have a positive impact on competition, and is expected to have only a nominal, positive effect on the open market for employment and small business. The EIS also meets the requirement of Section 120.54(2)(c)5., Florida Statutes, because the statement includes a comparison of the costs and benefits of the proposed rule to the probable costs and benefits of not adopting the rule. Where there are reasonable alternative methods for achieving the purpose of the rule which are not precluded by law, Sections 120.54(2)(c)6. and 120.54(2)(c)7., Florida Statutes, require that an EIS describe these alternatives and make a determination of whether any of the alternatives are less costly or less intrusive than the proposed method. Petitioner's EIS meets these requirements and concludes that none of the reasonable public or private alternatives provides the same cost-efficient, focused delivery, and long-term management and maintenance of the public facilities and services to be provided by the District. The District is the preferred alternative because it is a special-purpose unit of local government with a single purpose: the provision of infrastructure and services for planned, new communities. The EIS meets the requirement of Section 120.54(2)(c)8., Florida Statutes, because the EIS includes a detailed statement of the data and methodology used in preparing the analysis. The Petitioner's EIS meets all the requirements of Section 120.54(2), Florida Statutes. Other Requirements Petitioner has complied with Section 190.005(1)(b) Florida Statutes, which requires that the Petitioner submit a copy of the Petition and pay a filing fee to the local general-purpose government. Section 190.005(l)(d), Florida Statutes, requires the Petitioner to publish notice of the local public hearing in a newspaper of general paid circulation in Manatee County for four consecutive weeks immediately prior to the hearing. The notice was published in the Bradenton Herald for four consecutive Thursdays, beginning on January 26, 1995. Rule 42-1.010, Florida Administrative Code , requires the Commission to cause to be published a Notice of Receipt of Petition in the Florida Administrative Weekly. This notice was published on January 20, 1995. Rule 42-1.011(1)(a), Florida Administrative Code , requires the Petitioner to furnish proof of publication of the Notice of Local Hearing to the Secretary of the Commission. The Affidavit of Publication was transmitted to the Secretary of the Commission as required on February 21, 1995. Rule 42-1.011(1)(b), Florida Administrative Code, requires the Petitioner to mail a copy of the Notice of Local Hearing to all persons named in the proposed rule, the affected local government, and the Secretary of the Department of Community Affairs. Such individual notices were mailed as required by the rule.
Conclusions A local public hearing in this proceeding was held before William R. Cave, Hearing Officer, Division of Administrative Hearings, on February 23, 1995, at the City Council Chambers, City Hall, 500 15th Street West, Bradenton, Florida. The hearing was conducted pursuant to Section 190.005, Florida Statutes, for the purpose of taking testimony and public comment and receiving exhibits on the Petition of SMR Communities (Petitioner) to establish the Lakewood Ranch Community Development District 2 (District). This Report of Findings and Conclusions (report) is prepared and submitted to the Florida Land and Water Adjudicatory Commission (Commission) pursuant to Section 190.005, Florida Statutes, and Rule 42-1.013, Florida Administrative Code.
Recommendation Based upon the foregoing findings of fact and conclusions of law, the undersigned recommends that the Governor and Cabinet, sitting as the Florida Land and Water Adjudicatory Commission, pursuant to Chapters 190 and 120, Florida Statutes, and Chapter 42-1, Administrative Code, establish the Lakewood Ranch Community Development District 2 as requested by the Petitioner by formal adoption of the proposed rule attached to this Report of Findings and Conclusions as Exhibit 6. Respectfully submitted this 15th day of March, 1995, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of March, 1995. COPIES FURNISHED: Robert Bradley, Secretary Florida Land and Water Adjudicatory Commission The Capitol Suite 1601 Tallahassee, Florida 32399-0001 Rhea F. Law, Esquire Erin R. McCormick, Esquire Fowler, White, Gillen, Boggs, Villareal and Banker, P.A. Post Office Box 1438 Tampa, Florida 33601-1438 Rex Jensen Vice President - Real Estate Schroeder-Manatee Ranch, Inc. 7550 Lorraine Road Bradenton, Florida 34202 Gregory Smith, Esquire Office of the Governor The Capitol, Suite 209 Tallahassee, Florida 32399-0001 Dan Stengle, Esquire Al Bragg, Esquire Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Mark P. Barnebey, Esquire Senior Assistant County Attorney Manatee County Attorney's Office P. O. Box 1000 Bradenton, Florida 34206
