The Issue The sole issue to be addressed is whether the Petition to establish the Double Branch Community Development District meets the applicable criteria set forth in Chapter 190, Florida Statutes, and Chapter 42-1, Florida Administrative Code.
Findings Of Fact Overview The Petitioner is seeking the adoption of a rule by the Commission to establish a community development district proposed to consist of approximately 1,203 acres located within the boundaries of unincorporated Clay County. The suggested name for the proposed District is the Double Branch Community Development District. The Petition notes that the proposed District covers approximately 1,203 acres. Hinson testified that the approximate acreage of the proposed District remains 1,203 acres; however, the metes and bounds description contained in the Petition has been revised since the time of the filing of the Petition. The revised metes and bounds description was, without objection, admitted into evidence. There are no out-parcels within the area to be included in the proposed District. The estimated cost of the infrastructure facilities and services which are presently expected to be provided to the lands within the District was included in the Petition. The sole purpose of this proceeding was to consider the establishment of the District as proposed by the Petitioner. Summary of Evidence and Testimony Whether all statements contained within the Petition have been found to be true and correct. Petitioner's Composite Exhibit A was identified for the record as a copy of the Petition and its exhibits as filed with the Commission. Hinson testified that he had reviewed the contents of the Petition and approved its findings. Hinson also generally described the exhibits to the Petition. Hinson testified that the Petition and its exhibits, as modified by the revised metes and bounds description admitted into evidence as Exhibit B, are true and correct to the best of his knowledge. Miller testified that he had assisted in the preparation of portions of the Petition and its exhibits. Miller also generally described several exhibits to the Petition which he or his office had prepared. Miller testified that the exhibits to the Petition, prepared by England, Thims & Miller, Inc., and admitted into evidence, were true and correct to the best of his knowledge. Walters testified that he had prepared Exhibit 11 to the Petition, the Statement of Estimated Regulatory Costs (SERC). Walters also testified that Statement of Estimated Regulatory Costs submitted as Exhibit 11 to Petitioner's Composite Exhibit A was true and correct to the best of his knowledge. Hinson also testified that the consent by the owner of the lands to be included within the proposed District is still in full force and effect. The Petition included written consent to establish the District from the owners of one hundred percent (100%) of the real property located within the lands to be included in the proposed District. There have been no sales of these lands thus far. Based upon the foregoing, the Petition and its exhibits are true and correct. Whether the establishment of the District is inconsistent with any applicable element or portion of the State Comprehensive Plan or of the effective local government comprehensive plan. Walters reviewed the proposed District in light of the requirements of the State Comprehensive Plan, Chapter 187, Florida Statutes. Walters also reviewed the proposed District in light of the requirements of the Clay County Comprehensive Plan. From a planning and economic perspective, four (4) subjects of the State Comprehensive Plan apply directly to the establishment of the proposed District as do the policies supporting those subjects. Subject 16, Land Use, recognizes the importance of locating development in areas with the fiscal ability and service capacity to accommodate growth. The proposed District will have the fiscal ability to provide services and facilities to the population in the designated growth area and help provide infrastructure in an area which can accommodate development within Clay County in a fiscally responsible manner. Subject 18, Public Facilities, provides that the State shall protect substantial investments in public facilities and plan for and finance new facilities to serve residents in a timely, orderly, and efficient manner. The proposed District will be consistent with this element because the District will plan and finance the infrastructure systems and facilities needed for the development of lands within the District at no capital cost to Clay County. Subject 21, Governmental Efficiency, provides that governments shall economically and efficiently provide the amount and quality of services required by the public. The proposed District will be consistent with this element because the proposed District will finance and deliver those public services and facilities as needed by the District's residents and property owners. The proposed District will be established under uniform general law standards as specified in Chapter 190, Florida Statutes. Creating a District does not burden the general taxpayer with the costs for the services or facilities inside the proposed District. The proposed District will require no subsidies from the state or its citizens. Subject 26, Plan Implementation, provides that systematic planning capabilities be integrated into all levels of government, with emphasis on improving intergovernmental coordination. The proposed District is consistent with this element of the State Comprehensive Plan because the proposed District, by and through a separate and distinct Board of Supervisors, will systematically plan for the construction, operation, and maintenance of the public improvements and the community facilities authorized under Chapter 190, Florida Statutes, subject to and not inconsistent with the local government comprehensive plan and land development regulations. Additionally, the District meetings are publicly advertised and are open to the public so that all District property owners and residents can be involved in planning for improvements. Finally, Section 189.415(2), Florida Statutes, requires the District to file and update public facilities reports with the county or city, which they 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. The Clay County Comprehensive Plan contains thirteen (13) elements which are supported by numerous goals and objectives. Walters testified that portions of three (3) of these elements are relevant when determining whether or not the proposed District is inconsistent with the local comprehensive plan. There are Goals and Objectives within the Future Land Use Element which are targeted to effectively manage growth in areas designated to accommodate future development and provide services in a cost-efficient manner. The proposed District is within the County's Planned Urban Service Area, and is part of a Chapter 380, Florida Statutes, development order vested in the County Land Use Plan. The proposed District is a recognized vehicle to provide the necessary services and facilities to the lands within the boundaries of the proposed District. The goal of the Intergovernmental Coordination Element is to establish processes among various governmental, public and private entities to coordinate development activities, preservation of the quality of life, and the efficient use of available resources. The proposed District will assist in the coordination process by providing and maintaining community infrastructure in a way that is not inconsistent with the plans and activities of related public and private agencies. The Capital Improvements Element is intended to provide necessary infrastructure in a timely and orderly manner. The proposed District will expand the areas that enjoy infrastructure in a manner consistent with the Clay County Comprehensive Plan. Based on the evidence in the record, the proposed District will not be inconsistent with any applicable element or portion of the Local Comprehensive Plan, and will in fact further the goals provided. The Florida Department of Community Affairs (DCA) reviewed the Petition for compliance with its various programs and responsibilities. DCA also discussed the contents of the Petition with the Clay County Planning Department and the Northeast Florida Regional Planning Council. After conducting its own review and conferring with local governmental entities, DCA concluded that it had no objection to the establishment of the Double Branch Community Development District. Whether the area of land within the proposed district is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developable as one functional interrelated community. Testimony on this criterion was provided by Miller and Walters. The lands that comprise the proposed District will consist of approximately 1,203 acres, located within the borders of unincorporated Clay County. All of the land in the proposed District is part of a planned community included in the Villages of Argyle Forest Development of Regional Impact (DRI). Functional interrelation means that each community purpose has a mutual reinforcing relationship with each of the community's other purposes. Each function requires a management capability, funding source, and an understanding of the size of the community's needs, so as to handle the growth and development of the community. Each function must be designed to contribute to the development or the maintenance of the community. The size of the District as proposed is approximately 1,203 acres. From a planning perspective, this is a sufficient size to accommodate the basic infrastructure facilities and services typical of a functionally interrelated community. The proposed facilities and services require adequate planning, design, financing, construction, and maintenance to provide the community with appropriate infrastructure. Compactness relates to the location in distance between the lands and land uses within a community. The community is sufficiently compact to be developed as a functionally inter-related community. The compact configuration of the lands will allow the District to provide for the installation and maintenance of its infrastructure in a long- term, cost-efficient manner. The Petitioner is developing all of the lands within the District as a single master-planned community. All of these lands are governed by the Villages of Argyle Forest Development of Regional Impact Development Order issued by Clay County. From planning, economics, engineering, and management perspectives, the area of land to be included in the proposed District is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developed as a single functionally interrelated community. Whether the proposed district is the best alternative available for delivering community development services and facilities to the area that will be served by the proposed district. It is presently intended that the District will 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 through the issuance of tax exempt bonds and the debt retired by "non-ad valorem" or "special" assessments on benefited property within the proposed District. Expenses for operations and maintenance are expected to be paid through maintenance assessments. 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 District were identified. First, the County might provide facilities and services from its general fund. Second, facilities and services might be provided by some private means, with maintenance delegated to a property owners' association (POA) or a home owners' association (HOA). The District is preferable to the available alternatives at focusing attention on when, where, and how the next system of infrastructure will be required. This results in a full utilization of existing facilities before new facilities are constructed and reduces the delivered cost to the citizens being served. The District will construct certain infrastructure and community facilities which will be needed by the property owners and residents of the project. Expenses for the operations and maintenance are expected to be paid through maintenance assessments to ensure that the property or person receiving the benefit of the district services is the same property or person to pay for those services. Only a community development district allows for the independent financing, administration, operations and maintenance of the land within such a district. Only a community development district allows district residents to completely control the district. The other alternatives do not have these characteristics. From an engineering perspective, the proposed District is the best alternative to provide the proposed community development services and facilities to the land included in the proposed District because it is a long-term, stable, perpetual entity capable of funding, constructing, and in some cases, maintaining the facilities over their expected life. From planning, economic, engineering, and special district management perspectives, the proposed District is the best alternative available for delivering community development services and facilities to the area that will be served by the District. Whether the community development services and facilities of the proposed district will be incompatible with the capacity and uses of existing local and regional community development services and facilities. The services and facilities proposed to be provided by the District are not incompatible with uses and existing local and regional facilities and services. The District's facilities and services 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. Whether the area that will be served by the district is amenable to separate special-district government. 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 community to be included in the District has need for basic infrastructure systems to be provided. From planning, engineering, economic and management perspectives, the area that will be served by the amended District is amenable to separate special-district government. Other requirements imposed by statute or rule. Chapter 190, Florida Statutes, and Chapter 42-1, Florida Administrative Code, impose specific requirements regarding the Petition and other information to be submitted to the Commission. Elements of the Petition The Commission has certified that the Petition to Establish the Double Branch Community Development District meets all of the requirements of Section 190.005(1)(a), Florida Statutes. Statement of Estimated Regulatory Costs (SERC) The SERC contains an estimate of the costs and benefits to all persons directly affected by the proposed rule to establish the District -- the State of Florida and its citizens, the County and its citizens, the City and its citizens, the 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 are difficult to quantify, but 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 in the District by new residents 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 CDD will include the option of having a higher level of public services and amenities than might otherwise be available, completion of District-sponsored improvements to the area on a timely basis, and a larger share of direct control over community development services and facilities within the area. Section 190.005(1)(a), Florida Statutes, requires the Petition to include a SERC which meets the requirements of Section 120.541, Florida Statutes. The Petition contains a SERC. It meets the requirements of Section 120.541, Florida Statutes. Other Requirements Petitioner has complied with the provisions of Section 190.005(1)(b)1, Florida Statutes, in that Clay 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 Clay County for four consecutive weeks prior to the hearing. The notice was published in The County Line section of The Florida Times-Union, a newspaper of general circulation in Clay County for four consecutive weeks, on February 13, 2002, February 20, 2002, February 27, 2002, and March 6, 2002. Clay County Support for Establishment Pursuant to the requirements of Section 190.005(1)(b), Florida Statutes, Petitioner filed a copy of the Petition and the $15,000 filing fee with Clay County prior to filing the Petition with the Commission. As permitted by Section 190.005(1)(c), Florida Statutes, the Clay County Commission held a public hearing on February 26, 2002, to consider the establishment of the Double Branch Community Development District. At the conclusion of its public hearing on February 26, 2002, the Clay County Commission adopted Resolution No. 01/02-42, expressing support for the Commission to promulgate a rule establishing the Double Branch Community Development District. The Clay County Resolution specifically found that all six (6) of the statutory factors for evaluating the establishment of community development districts found in Section 190.005(1)(e), Florida Statutes, had been met by the Petition in this matter.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Governor and Cabinet, sitting as the Florida Land and Water Adjudicatory Commission, pursuant to Chapters 190 and 120, Florida Statutes, and Chapter 42-1, Florida Administrative Code, establish the Double Branch Community Development District as requested by the Petitioner by formal adoption of the proposed rule attached to this Report as Exhibit 3. DONE AND ENTERED this 1st day of April, 2002, in Tallahassee, Leon County, Florida. CHARLES A. STAMPELOS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of April, 2002. Exhibit 1 Petitioner's Witnesses at Public Hearing Donald P. Hinson OakLeaf Plantation, L.L.C 3020 Hartley Road, Suite 100 Jacksonville, Florida 32257 Douglas C. Miller, P.E. England Thims & Miller, Inc. 14775 St. Augustine Road Jacksonville, Florida 32258 Gary R. Walters Gary Walters and Associates 12 Crooked Tree Trail Ormond Beach, Florida 32174 Exhibit 2 List of Petitioner's Exhibits Letter Description Composite Exhibit (Petition with twelve (12) exhibits) B-1 Pre-filed Testimony of Donald P. Hinson (11 pages) Revised legal description for lands to be included within the boundaries of the proposed District Commission Notice of Receipt of Petition Letter to Division of Administrative Hearings from Commission Letter to Department of Community Affairs from Commission Correspondence from Department of Community Affairs to the Commission Clay County Resolution 01/02-42 Development Order (No. 99-45) for Villages of Argyle Forest Development of Regional Impact Florida Times-Union Proof of Publication of Notice of Local Public Hearing Pre-filed Testimony of Douglas C. Miller, P.E. (8 pages) Pre-filed Testimony of Gary R. Walters (21 pages) Chapter 187, Florida Statutes (23 pages) Exhibit 3 Text of Proposed Rule CHAPTER 42___-1 DOUBLE BRANCH COMMUNITY DEVELOPMENT DISTRICT 42___-1.001 Establishment. 42___-1.002 Boundary. 42___-1.003 Supervisors. 42____-1.001 Creation. The Double Branch Community Development District is hereby established. Specific Authority 120.53(1), 190.005 FS. Law Implemented 190.005 FS. History-New 42____-1.002 Boundary. The boundaries of the District are as follows: A parcel of land lying in the being part of Sections 4, 5, 6, 8 and 9, Township 4 South, Range 25 East, Clay County, Florida, being more particularly described as follows: Commencing at the Northwest corner of said Section 4, also being the Northeast corner of said Section 5; thence, on the West line of said Section 4, South 00 degrees 10 minutes 14 seconds East, 5.00 feet to the point of beginning; thence, parallel with and 5.0 feet South from the North line of said Section 4, also being the line dividing Clay County and Duval County, and the North line of said Township 4 South, North 89 degrees 50 minutes 04 seconds East, 2039.14 feet to the West line of Deerfield Pointe, as recorded in Plat Book 22, Pages 62 through 65, of the public records of said Clay County; thence, on said West line, South 00 degrees 20 minutes 13 seconds West, 1354.17 feet to the South line of said Deerfield Pointe; thence, on said South line, North 89 degrees 51 minutes 50 seconds East, 675.62 feet to the West line of Spencer’s Crossing Unit 1, as recorded in Plat Book 18, Pages 18 through 22, of said public records; thence, on said West line, the West line of Spencer’s Crossing Unit 5, as recorded in Plat Book 27, Pages 19 through 22, the West line of Sweetbriar, as recorded in Plat Book 32, Pages 61 through 64, the West line of lands recorded in Official Records Book 1603, Page 1212, and the West line of a 20 foot right-of-way recorded in Official Records Book 1603, Page 1220, all being recorded in the public records of said county, said line also being the East line of the Southeast quarter of the Northwest quarter and the Southwest quarter of said Section 4, South 00 degrees 31 minutes 32 seconds West, 4050.46 feet to the South line of said Section 4; thence, on said South line, North 89 degrees 51 minutes 57 seconds West, 662.62 feet to the West line of lands described in Official Records Book 1603, page 1212, of said public records, also being the East line of the West half of the Northeast quarter of the Northwest quarter of said Section 9; thence, on last said line, South 00 degrees 11 minutes 52 seconds East, 1388.96 feet to the South line of said Northeast quarter of the Northwest quarter of said Section 9; thence, on said South line, South 89 degrees 09 minutes 05 seconds West, 662.36 feet to the East line of the Southwest quarter of the Northwest quarter of said Section 9; thence, on said East line, South 00 degrees 21 minutes 15 seconds East, 699.95 feet to the South line of the North half of the Southwest quarter of the Northwest quarter of said Section 9; thence, on said South line, South 88 degrees 36 minutes 38 seconds West, 1327.66 feet to the West line of said Section 9, also being the East line of said Section 8; thence, on the South line of the North half of the Southeast quarter of the Northeast quarter of said Section 8, North 88 degrees 34 minutes 52 seconds West, 1335.51 feet to the East line of the Southwest quarter of the Northeast quarter of said Section 8; thence, on said East line, South 00 degrees 10 minutes 48 seconds East, 700.93 feet to the South line of said Southwest quarter of the Northeast quarter of Section 8; thence, on said South line, North 88 degrees 09 minutes 42 seconds West, 1156 feet, more or less, to the centerline of the North prong of Double Branch; thence, in a Northwesterly direction, by and along said centerline and following the meanderings thereof, 12,053 feet, more or less, to a point bearing South 89 degrees 49 minutes 27 seconds West from the point of beginning; thence, parallel with and 5.0 feet South from the North line of said Section 5, North 89 degrees 49 minutes 27 seconds East, 5043 feet, more or less, to the point of beginning. said parcel containing 1203 acres, more or less. Specific Authority 120.53(1), 190.005 FS. Law Implemented 190.004, 190.005 FS. History-New 42____-1.003 Supervisors. The following five persons are designed as the initial members of the Board of Supervisors: Donald P. Hinson, James T. O’Riley, Donald E. Brown, Charles W. Arnold, III, and Gary F. Hannon. Specific Authority 120.53(1), 190.005 FS. Law Implemented 190.006(1) FS. History - New COPIES FURNISHED: Cheryl G. Stuart, Esquire Jennifer A. Tschetter, Esquire Hopping, Green & Sams, P.A. 123 South Calhoun Street Post Office Box 6526 Tallahassee, Florida 32314 Charles Canady, General Counsel Florida Land and Water Adjudicatory Commission Office of the Governor Department of Legal Affairs The Capitol, Room 209 Tallahassee, Florida 32399 Donna Arduin, Secretary Florida Land and Water Adjudicatory Commission Office of the Governor The Capitol, Room 2105 Tallahassee, Florida 32399 Barbara Leighty, Clerk Growth Management and Strategic Planning The Capitol, Room 2105 Tallahassee, Florida 32399
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 amendment to the Lee County Comprehensive Plan adopted by Ordinance No. 05-20 is "in compliance," as that term is defined in Section 163.3184(1)(b), Florida Statutes (2005),1 for the reasons set forth in the Petition for Formal Administrative Hearing and Statement of Intent filed by the Department of Community Affairs ("the Department").
Findings Of Fact The Parties The Department is the state land planning agency and is statutorily charged with the duty of reviewing comprehensive plans and their amendments, and determining whether a plan or amendment is “in compliance,” as that term is defined in Section 163.3184(1)(b), Florida Statutes. Lee County is a political subdivision of the State of Florida and has adopted a comprehensive plan that it amends from time to time pursuant to Section 163.3167(1)(b), Florida Statutes. Leeward is a Florida limited liability company that owns a portion of the real property that is the subject of the amendment at issue. The Amendment The amendment would change the future land use designation for 41.28 acres in the northeast quadrant of the Interstate 75 (I-75)/State Road 80 (SR 80) interchange from General Commercial Interchange to Urban Community, as shown on the FLUM. The General Commercial Interchange land use is described in the County Plan as “intended primarily for general community commercial land uses: retail, planned commercial districts, shopping, office, financial, and business.” It does not allow residential development. The Urban Community land use provides for a mix of residential, commercial, public, quasi-public, and limited light industrial uses. The standard density range for residential uses in the Urban Community category is one to six dwelling units per acre (du/a). The 41.28 acres affected by the amendment ("the amendment site") consist of 19.28 acres of lands along the Orange River owned by Leeward, a platted subdivision known as Dos Rios of approximately 11 acres, and the remaining acreage consists of right-of-way for SR 80 and I-75. Currently operating on Leeward's property is a vessel repair facility, a marina with wet and dry slips, and an ecotourism company. Leeward also has its office on the site. The Dos Rios subdivision includes 26 single-family lots. Apparently, only a few of the lots (the number was not established in the record) have been developed. Because residential land uses are not allowed in the General Commercial Interchange category, the Dos Rios lots were non-conforming uses. Maximum Allowed Density The County Plan provides residential density bonuses to promote various County objectives, such as the provision of affordable housing. With density bonuses, lands designated Urban Community can boost their density to a maximum of ten du/a. There was testimony presented by Leeward that the County has not often approved applications for density bonuses. Even if the practice of the County in approving density bonuses were relevant, the practice can change. It is reasonable for the Department to consider the maximum intensity or density associated with a future land use designation when determining whether a FLUM amendment is in compliance. Therefore, in this case, it is reasonable to consider the Urban Community land use designation as allowing up to ten du/a. The Department asserts that the amendment would allow the 41.2 acres affected by the amendment to have a total of 412 dwelling units (41.2 acres x 10 du/a). Leeward disputed that figure because the 41.2 acres includes road right-of-way and the Dos Rios subdivision. A hearing officer appointed to review a Lee County development order recently determined that right-of-way external to a development should not be included in calculating allowable units, and the County accepted the hearing officer's recommendation based on that determination. The definition of "density" in the County Plan supports the determination.2 Therefore, for the purposes of this case, the right-of-way in the northeast quadrant should not be included in calculating the maximum residential density that would result from the amendment. On the other hand, Leeward's argument that the Dos Rios subdivision acreage should not be included in the ten du/a calculation is rejected. For the purposes of an "in compliance" determination, it is reasonable for the Department to apply the maximum potential densities to all developable and re- developable acreage. Using 29 acres as the approximate acreage affected by the amendment when road right-of-way is subtracted, the amendment would create the potential for 290 residences in the northeast quadrant of the interchange. Adoption of the Amendment The amendment was initiated as part of the County's reexamination of the existing land use designations in the four quadrants of the I-75/SR 80 interchange. Following the County planning staff's completion of a study of the entire interchange, it recommended several changes to the County Plan, but no change was recommended for the northeast quadrant. Apparently, the amendment at issue was urged by Leeward, and, at a public hearing held on June 1, 2005, the Board of County Commissioners voted to adopt the amendment. Pursuant to Section 163.3184(6), Florida Statutes, the proposed amendment was forwarded to the Department for an "in compliance" review. Following its review, the Department issued its ORC Report on August 19, 2005. In the ORC Report, the Department objected to the proposed amendment based upon what it considered to be inappropriate residential densities in the coastal high hazard area (CHHA) and floodplain. The Department recommended that the County not adopt the proposed amendment. On October 12, 2005, another public hearing was held before the Board of County Commissioners to consider adoption of the amendment. At the public hearing, the County planning staff recommended that the land use designation in the northeast quadrant not be changed to Urban Community "due to the potential increase in density in the Coastal High Hazard Area." Nevertheless, the Board of County Commissioners approved the amendment. Representatives of Leeward appeared and submitted comments in support of the amendment at the public hearings before the Board of County Commissioners. On December 16, 2005, the Department issued its Statement of Intent to Find Comprehensive Plan Amendment Not in Compliance, identifying three reasons for its determination: (1) inconsistency with state law regarding development in the CHHA and flood prone areas, (2) internal inconsistency with provisions of the County Plan requiring the consideration of residential density reductions in undeveloped areas within the CHHA, and (3) inconsistency with the State Comprehensive Plan regarding subsidizing development in the CHHA and regulating areas subject to seasonal or periodic flooding. On January 5, 2006, the Department filed its petition for formal hearing with DOAH. Coastal High Hazard Area The Florida Legislature recognized the particular vulnerability of coastal resources and development to natural disasters and required coastal counties to address the subject in their comprehensive plans. [I]t is the intent of the Legislature that local government comprehensive plans restrict development activities where such activities would damage or destroy coastal resources, and that such plans protect human life and limit public expenditures in areas that are subject to destruction by natural disaster. § 163.3178(1), Fla. Stat. The statute also requires evacuation planning. Until 2006, the CHHA was defined as the "category 1 evacuation zone." § 163.3178(2)(h), Fla. Stat. In 2006, the CHHA was redefined as "the area below the elevation of the category 1 storm surge line as established by the Sea, Lake, and Overland Surges from Hurricanes (SLOSH) computerized storm surge model."3 Ch. 2006-68, § 2, Laws of Fla. The County Plan defines the CHHA as "the category 1 evacuation zone as delineated by the Southwest Florida Regional Planning Council." Map 5 of the County Plan, entitled "Lee County Coastal High Hazard Area (CHHA)," shows the entire amendment site as being within the CHHA. Nothing on Map 5, however, indicates it was produced by the Regional Planning Council. Daniel Trescott, who is employed by the Southwest Florida Regional Planning Council and is responsible for, among other things, storm surge mapping, stated that the Category 1 evacuation zone is the storm surge level for the worst case scenario landfall for a Category 1 storm. He stated that the Category 1 storm surge for Lee County was determined by the SLOSH model to be 5.3 feet. Mr. Trescott stated that the 5.3 foot contour (shown on Plate 7 of the Regional Planning Council's "Hurricane Storm Tide Atlas - Lee County") more accurately delineates the CHHA than Map 5 of the County Plan. Although Mr. Trescott's testimony suggests a conflict between the County Plan's definition of the CHHA and Map 5's depiction of the CHHA, the two can be reconciled by a finding that Map 5 is a gross depiction of the CHHA for general public information purposes, but the precise location of the CHHA boundary is the one delineated by the Regional Planning Council, and the latter is controlling. Using the 5.3 contour on the amendment site, Leeward's witness, Michael Raider, estimated that there are approximately 16 acres of the amendment site within the CHHA. Applying the maximum allowable residential density under the Urban Community land use designation (with bonuses) of ten du/a means the amendment would result in a potential for 160 dwellings in the CHHA. Florida Administrative Code Rule 9J-5.012(3)(b)6. and Rule 9J-5.012(3)(c)7., respectively, require each local government’s coastal management element to contain one or more specific objectives that "[d]irect population concentrations away from known or predicted coastal high-hazard areas” and limit development in these areas. The parties' evidence and argument regarding whether the amendment was "in compliance" focused on these rules and the following goal, objective, and policy of the County Plan related to the CHHA: GOAL 105: PROTECTION OF LIFE AND PROPERTY IN COASTAL HIGH HAZARD AREAS. To protect human life and developed property from natural disasters. OBJECTIVE 105.1: DEVELOPMENT IN COASTAL HIGH HAZARD AREAS. Development seaward of the 1991 Coastal Construction Control Line will require applicable State of Florida approval; new development on barrier islands will be limited to densities that meet required evacuation standards; new development requiring seawalls for protection from coastal erosion will not be permitted; and allowable densities for undeveloped areas within coastal high hazard areas will be considered for reduction. POLICY 105.1.4: Through the Lee Plan amendment process, land use designations of undeveloped areas within coastal high hazard areas will be considered for reduced density categories (or assignment of minimum allowable densities where ranges are permitted) in order to limit the future population exposed to coastal flooding. In the opinion of Bernard Piawah, a planner employed by the Department, the amendment is inconsistent with the goal, objective and policy set forth above because these provisions only contemplate possible reductions of residential densities in the CHHA and there is no provision of the County Plan that addresses or establishes criteria for increasing residential densities in the CHHA. Population Concentrations As stated above, Florida Administrative Code Rule 9J-5.012(3)(b)6. directs local governments to include provisions in their comprehensive plans to direct population concentrations away from the CHHA. The term "population concentrations" is not defined in any statute or rule. The term apparently has no generally accepted meaning in the planning profession. The word "population" has the ordinary meaning of "all of the people inhabiting a specific area." The American Heritage Dictionary of the English Language (1981). The word "concentration" has the ordinary meaning of "the act or process of concentrating." Id. The word "concentrate" means "to direct or draw toward a common center." Id. In the context of Florida Administrative Code Rule 9J-5.012, the term "population concentrations" suggests a meaning of population densities (dwelling units per acre) of a certain level, but the level is not stated. Leeward argues that, because there is no state guidance on the meaning of the term "population concentrations," surrounding land uses should be examined to determine whether a proposed density would be "proportionate to its surroundings." According to Leeward, in order to be a population concentration, the density under review would have to be greater than the surrounding density. This comparative approach is rejected because the overarching Legislative objective is protection of life, which plainly calls for a straightforward consideration of the number of lives placed in harm's way. The Department, in its Proposed Recommended Order, states: By assigning either zero residential density to land by virtue of an Open Space land use designation, or a maximum density of one unit per acre by assigning a low density land use designation, the County Plan fulfills the mandates of State law that development be limited in and residential concentrations be directed away from the CHHA. Thus, not surprisingly, the Department does not consider one du/a to be a population concentration. A density of ten du/a is an urban density, as indicated by the fact that it is the maximum density allowed in the Urban Community land use designation and the highest density within the "standard density range" for the County's Central Urban land use designation. It is a generally known fact, of which the undersigned takes notice, that urban areas are areas where populations are concentrated. It is a another generally known fact, of which the undersigned takes notice, that ten dwelling units on one acre of land amounts to a lot of people living in a small space. Leeward, itself, described the residential density allowed under the Urban Community designation as "relatively intense." Leeward's Proposed Recommended Order, at 7. Whether measured by density alone (ten du/a) or by Leeward's estimate of 160 residences on 16 acres, the amendment places a population concentration in the CHHA. Offsets in the CHHA Leeward presented evidence that the County has been reducing residential densities, sometimes referred to as "down- planning," in other areas of the CHHA in Lee County. The reduction in dwelling units in the CHHA over the past several years may be as high as 10,000 units. The Department did not present evidence to dispute that there has been an overall reduction in dwelling units in the CHHAs of Lee County. Leeward argues that these reductions "offset" the increase in dwelling units in the CHHA that would result from the amendment and this "overall" reduction in densities in the CHHA must be considered in determining whether the amendment is "in compliance" with state law and with provisions of the County Plan related to directing population concentrations away from the CHHA. At the hearing and in its Proposed Recommended Order, the Department argued that the consideration of offsets in the CHHA was improper and unworkable, but that argument conflicts with the Department's actual practice and official position as described in the January 2006 "Department of Community Affairs Report for the Governor's Coastal High Hazard Study Committee." In that report, the Department acknowledged there is no statutory or rule guidance regarding what the maximum density should be in the CHHA. The Report notes that some local governments have established maximum densities for the CHHA (e.g., Pinellas County, 5 du/a; Franklin County 1 du/a). The Department states in the report that it reviews amendments to increase density in the CHHA on a "case by case" basis, and explains further: When a Comprehensive Plan Amendment in the CHHA proposes a density increase, DCA's review considers the amount of the density increase, the impact on evacuation times and shelter space, and whether there will be a corresponding offset in density through "down planning" (generally accomplished through public acquisition). One of the visual aides used in conjunction with the 2006 report to Governor's Coastal High Hazard Study Committee, entitled "Policy Issue #2 - Densities in High Hazard Areas," also describes the Department's practice: Without locally adopted density limits, DCA conducts a case by case review of amendments without any defined numeric limit. DCA considers amount of density increase, impact on evacuation times and shelter space, and whether there will be a corresponding offset in density through "down planning" in other areas of the CHHA. These statements use the phrase "there will be a corresponding offset," which suggests that for an offset to be considered, it would have to be proposed concurrently with an increase in residential density on other lands within the CHHA. However, according to the director of the Department's Division of Community Planning, Valerie Hubbard, offsets in the CHHA do not have to be concurrent; they can include previous reductions. Furthermore, although the Department pointed to the absence of any criteria in the County Plan to guide an offset analysis, Ms. Hubbard said it was unnecessary for a comprehensive plan to include express provisions for the use of offsets. To the extent that this evidence of the Department's interpretation of relevant law and general practice conflicts with other testimony presented by the Department in this case, the statements contained in the report to the Governor's Coastal High Hazard Study Committee and the testimony of Ms. Hubbard are more persuasive evidence of the Department's policy and practice in determining compliance with the requirement that comprehensive plans direct population densities away from the CHHA and limit development in the CHHA. As long as the Department's practice when conducting an "in compliance" review of amendments that increase residential density in the CHHA is to take into account offsets, the Department has the duty to be consistent and to take into account the County's offsets in the review of this amendment. The County planning director testified that he believed the applicable goal, objective, and policy of the County Plan are met as long as there has been a reduction in residential densities in the CHHAs of the County as a whole. The Department points out that the planning director's opinion was not included in the County planning staff's reports prepared in conjunction with the amendment. However, it necessarily follows from the Board of County Commissioners' adoption of the amendment that it does not interpret Objective 105.1 and Policy 105-1.4 as prohibiting an increase in residential density in the CHHA. Although these provisions make no mention of offsets, the Department has not required offset provisions in a comprehensive plan before the Department will consider offsets in its determination whether a plan amendment that increases density in the CHHA is in compliance. The wording used in Objective 105.1 and Policy 105-1.4 requiring "consideration" of density reductions in the CHHA can be harmonized with the County planning director's testimony and with the County's adoption of the amendment by construing these plan provisions consistently with the Department's own practice of allowing increases in the CHHA when the increases are offset by overall reductions in dwelling units in the CHHA. Seeking to harmonize the amendment with the provisions of the County Plan is the proper approach because, as discussed later in the Conclusions of Law, whether an amendment is consistent with other provisions of the plan is subject to the "fairly debatable" standard which is a highly deferential standard that looks for "any reason it is open to dispute or controversy on grounds that make sense or point to a logical deduction." Martin County v. Yusem, 690 So. 2d 1288, 1295 (Fla. 1997). Shelter Space and Clearance Time Prior to the hearing in this case, Leeward moved to strike certain statute and rule citations in the Department's petition related to shelter space and clearance time4 because they were not included in the Department's ORC Report. The motion was denied because, although Section 163.3184(8)(b), Florida Statutes, limits the Department's petition to issues raised in the "written comments" in the ORC Report, the statute does not indicate that the Department is barred from citing in its petition, for the first time, a rule or statute that is directly related to the written comments. The CHHA is defined in the County Plan as the category one "evacuation zone." It is the area most in need of evacuation in the event of a severe coastal storm. Shelter space and clearance time are integral to evacuation planning and directly related to the Department's comment in the ORC Report that the amendment would, "expose a substantial population to the dangers of a hurricane." Therefore, the Department was not barred from presenting evidence on shelter space and clearance time in support of this comment. The Department's practice when reviewing an amendment that increases residential density in the CHHA, described in its 2006 report to the Governor's Coastal High Hazard Area Study Committee, is to consider not only dwelling unit offsets in the CHHA, but also the effect on shelter space and clearance time. That report did not elaborate on how shelter space and clearance time are considered by the Department, but evidence that a comprehensive plan amendment would have a significant adverse effect on shelter space or clearance time could presumably negate what would otherwise appear to the Department to be an acceptable offset of residential density in the CHHA. On this record, however, the Department did not show that a significant adverse impact on shelter space or clearance time would be caused by this particular amendment.5 Special Planning Areas Leeward argues that, even if the amendment were determined to be inconsistent with Objective 105.1 and Policy 105-1.4, that inconsistency should be balanced against other provisions in the County Plan that are furthered by the amendment, principally the provisions related to the Caloosahatchee Shores Community Planning Area and the Water- Dependent Use Overlay Zone. There is no authority for such a balancing approach that can overcome an inconsistency with an objective or policy of the comprehensive plan. Therefore, whether the amendment furthers the provisions of the County Plan related to the Caloosahatchee Shores Community Planning Area, Water-Dependent Use Overlay Zone, or other subjects is irrelevant to whether the amendment is consistent with Objective 105.1 and Policy 105-1.4. On the other hand, the Department's contention that the amendment is inconsistent with the provisions of the County Plan related to the Caloosahatchee Shores Community Planning Area is contrary to the more credible evidence. 100-Year Floodplain The amendment site is entirely within the 100-year floodplain. In its Statement of Intent, the Department determined that the amendment was not in compliance, in part, because the amendment site's location in the 100-year floodplain made it unsuitable for residential development. In addition, the Department determined that the amendment caused an internal inconsistency with the following policies of the County Plan related to development in the floodplain: POLICY 61.3.2: Floodplains must be managed to minimize the potential loss of life and damage to property by flooding. POLICY 61.3.6: Developments must have and maintain an adequate surface water management system, provision for acceptable programs for operation and maintenance, and post-development runoff conditions which reflect the natural surface water flow in terms of rate, direction, quality, hydroperiod, and drainage basin. Detailed regulations will continue to be integrated with other county development regulations. According to Mike McDaniel, a growth management administrator with the Department, "we try to discourage increasing densities in floodplains and encourage that it be located in more suitable areas." The policies set forth above are intended to aid in the achievement of Goal 61 of the Community Facilities and Service Element "to protect water resources through the application of innovative and sound methods of surface water management and by ensuring that the public and private construction, operation, and maintenance of surface water management systems are consistent with the need to protect receiving waters.” Plainly, Goal 61 is directed to regulating construction and surface water management systems. There is no mention in this goal or in the policies that implement the goal of prohibiting all development or certain kinds of development in the 100-year floodplain. The Department's argument in this case regarding development in the 100-year floodplain is rejected because it ignores relevant facts and law. First, substantial portions of Lee County and the State are within the 100-year floodplain. Second, there is no state statute or rule that prohibits development in the 100-year floodplain. Third, the Department of Environmental Protection, water management districts, and local governments regulate development in the floodplain by application of construction standards, water management criteria, and similar regulatory controls to protect floodplain functions as well as human life and property. Fourth, there has been and continues to be development in the 100-year floodplain in Lee County and throughout the State, clearly indicating that such development is able to comply with all federal, state, and local requirements imposed by the permitting agencies for the specific purpose of protecting the floodplain and the public. Fifth, the Department "discourages" development in the floodplain but has not established by rule a standard, based on density or other measure, which reasonably identifies for local governments or the general public what development in the floodplain is acceptable to the Department and what development is unacceptable. Finally, the Department's practice in allowing offsets in the CHHA, as discussed previously, necessarily allows for development in the 100-year floodplain in that particular context.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued by the Florida Land and Water Adjudicatory Commission determining that the amendment adopted by Lee County in Ordinance No. 05-10 is "in compliance" as defined in Chapter 163, Part II, Florida Statutes. DONE AND ENTERED this 25th day of August, 2006, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of August, 2006.
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 At issue in this case is whether the Florida Land and Water Adjudicatory Commission (FLWAC) should grant the Petition to Amend the Boundary of the Villages of Westport Community Development District (CDD, or District) filed on December 23, 2005 (Petition), as amended and supplemented.
Findings Of Fact Petitioner is an existing special tax district, created on August 18, 1975, by Broward County Ordinance 75-22. (See Exhibit "A"). A legal description of the property which comprises the ITSMTD, and which would comprise the community development district, is contained within Section 1(a) of Ordinance 75-22 (Exhibit "A"). On December 22, 1980, the Board of Supervisors of the ITSMTD adopted a resolution (Exhibit "B") authorizing and directing the proper district officials to file a Petition with the Florida Land and Water Adjudicatory Commission to reestablish the district as a community development district pursuant to Chapter 190, Florida Statutes. The ITSMTD filed its Petition to reestablish the district as a community development district on January 22, 1981. The Petition named five (5) persons to serve as initial members of the Board of Supervisors of the proposed new district. These persons, who presently constitute the Board of Supervisors of the existing district, are Norman A. Cortese, Ellen Mills Gibbs, F. A. Mapleton, Robert E. Huebner and Edward F. Kosnick. The Petition recites that the proposed name of the new district will be the Indian Trace Community Development District, and that the District boundaries will remain the same as the existing special tax district. By letter dated January 29, 1981, the Florida Land and Water Adjudicatory Commission requested the assignment of a Hearing Officer form the Division of Administrative Hearings to conduct the necessary public hearing. The ITSMTD has jurisdiction over approximately 13,000 contiguous acres which lie within the unincorporated area of Broward County, Florida. A map showing the particular location of the property within the jurisdiction of the ITSMTD was presented and received into evidence. (Exhibit "C"). Petitioner presented the following additional Exhibits which were received into evidence: Development orders adopted June 27, 1978 and August 17, 1979 by the Broward County Commission. (Exhibit "D"). The development orders were adopted by the Broward County Commission pursuant to the development of regional impact permitting processes established by Chapter 380, Florida Statutes. These development orders govern or affect development of all land within the ITSMTD. A map which designates the future general distribution, location, and extent of public and private uses of land proposed for the area within the district by the Future Land Use Element of the Broward County Comprehensive Plan. (Exhibit "E"). A proposed timetable for constructing district services and the estimated cost of constructing those services. (Exhibit "F"). An economic impact statement which, based upon available data, estimates the economic impact on all persons directly affected by the proposed action and which sets forth in detail the data and method used in making the estimate. (Exhibit "G"). Proof of publication that public notice of the hearing conducted on March 25, 1981 was published once a week for four (4) consecutive weeks immediately prior to the hearing in the Fort Lauderdale News. (Exhibit "H"). The Future Land Use Plan Element of the Broward County comprehensive Plan which has been adopted by Broward County in compliance with the Local Government Comprehensive Planning Act of 1975. (Exhibit "I"). An agreement between ITSMTD, Arvida Corporation, and the City of Sunrise providing for the purchase of both water and sewer services by the ITSMTD from the City of Sunrise and committing the ITSMTD to make use of a Regional 201 Sewer Plan, when such plan is operational and capable of serving the district. ("Exhibit 'J'"). The ITSMTD was created by Broward County to provide certain services such as water, water management and control, sewers, and roads for an area of land consisting of approximately 13,000 acres. Included within this area of land is the 10,000 acre new community to be developed by Arvida Corporation known as Weston. The new community is a development of regional impact and is subject to two development orders adopted by Broward County (Exhibit "D"). The Weston development is a low density, residential new community which also includes industrial and commercial uses. It is presently planned to be developed over a 25-30 year period of time and will eventually contain 20,500 dwelling units and will have a population of 40,000. The two development orders grant master development approval to the Weston community and grant incremental development approval to the first two increments (approximately 7,000 acres). the third increment is designated for future incremental approval (approximately 3,000 acres presently planned for industrial, commercial, and airport uses). The 7,000 acres of land within Weston which comprise increments 1 and 2 pursuant to the aforementioned development orders have been zoned as a planned unit development. The zoning classification allows the construction of 18,000 dwelling units and the development of 500 acres of business-commercial land. To date, three (3) plats have been approved by Broward County within the Weston community. The Weston development and all proposed uses within the ITSMTD are consistent with the Future Land Use Element of the Comprehensive Plan for the unincorporated areas of Broward County, Florida, including policies and requirements relating to trafficways, open space and parks, and provision for housing (Exhibits "E" and "I"). The area of land within the proposed district is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developed as one functional, interrelated community for the following reasons: The area of land within the ITSMTD is composed of approximately 13,000 acres. 10,000 of the 13,000 acres constitute a development of regional impact, the develop- ment which is subject to two development orders (Exhibit "D"). 7,000 acres of the development of regional impact have been zoned by Broward County as a Planned Unit Development. (Exhibit "D"). These land control devices plan and provide for the development of this area in great detail. The development orders require phasing of the development and provide for the provision of parks, civic sites, schools, roads, and major land uses within the area. (See specifically Article II, A, D, and E of 1978 development order and Sections 1 and 2 of the 1979 development order.) The area of land within the proposed district is subject to and within the jurisdiction of the ITSMTD. The ITSMTD presently has the responsibility for providing water management, water and sewer services, and the construction of trafficways and certain other improvements. the ITSMTD was created for the specific purpose of aiding in the development of the area of land within the proposed district. In adopting Ordinance 75-22, the Broward County Commission observed: "WHEREAS, it is found by the County Commission that to promote the economic, orderly, and planned development of certain land and to best serve the welfare and convenience of the public, a Special Municipal Tax District of Broward County, Florida, should be established pursuant to the Charter of Broward County, Florida." The very location of the area of land within the proposed district and the major boundaries of that area dictate that the area be developed as a self-contained, functional interrelated community. (See Exhibits "C" and "D"). The area within the proposed district is compact and sufficiently contiguous to be developable as an interrelated community, as evidenced by the existence of the ITSMTD, the development orders, and the planned unit development zoning classification. A community development district is the best alternative available for delivering community development services and facilities to the area of land that will be served by the district for the following reasons: The finding supporting creation of the ITSMTD by the Broward County Commission in 1975 that a tax district is necessary for the area to be developed in an economic, orderly, and planned way remains true today. A community development district functioning pursuant to Chapter 190, Florida Statutes, would have the following advantages over the ITSMTD: Chapter 190, Florida Statutes, provides a clear and comprehensive charter for operating the district. The reestablishment of the ITSMTD as a community development district will conform the district to uniform state policy regarding the formation and operation of independent develop- ment districts, and will promote a strengthened state new community policy. A community development district has broad, comprehensive, and flexible powers which will better serve the area of land within the proposed district during the period of its development. The area of land to be served by the district will develop over a 20 to 30 year period of time and the broad flexible powers contained within Chapter 190, Florida Statutes, will give the community development district the ability to meet the changing needs and desires of the new community. The special powers contained within Section 190.012, Florida Statutes, will enable the district to provide a broader range of services to meet the needs of the developing community. Specifically, the Indian Trace Community Development District will be authorized to provide parks and facilities for indoor and outdoor recreational, cultural, and educational uses; fire protection and control services, including fire stations, water mains, fire trucks, and other vehicles and equipment; and to construct security and school buildings and related structures for use in the security and educational system, when authorized by proper governmental authority. The economic impact statement (Exhibit "G") points out several reasons why a community development district would be the best alternative to deliver community development services. Among the important points contained within the economic impact statement are the following: The Environmental Land Management Study Committee recommended implementation of a new communities policy in order to encourage well planned quality developments. Chapter 190, Florida Statutes, has implemented the recommendations of the Committee and has established that new community policy. The State of Florida has determined that Community Development Districts are a better alternative to provide infrastructure improvements than are "paper cities" The reestablishment of the ITSMTD as a Community Development District would avoid municipal formation as a means of infrastructure development. The reestablishment of the ITSMTD as a Community Development District will serve to implement the goals of the Broward County Land Use Plan. The Broward County Land Use Plan contains the following goals: It encourages planned communities with mixed uses, both residential and nonresidential; It determines that growth should be phased with the provision of community services and finds that urban growth should not be permitted in areas where the basic minimum required community services and facilities have not been provided or scheduled for capital improvement either by public or private means; It establishes that the capital costs for the provision and extension of major services, facilities, and transportation networks to benefit new residential or commercial developments should be imposed primarily on those who benefit and not on the existing resident population. The community development services which would be provided to the area of land within the proposed district would not be incompatible with the capacity and uses of existing local and regional development services and facilities for the following reasons: There are no existing regional services of facilities for the area of Broward County within the proposed district. Further, Broward County has neither the plans, nor the capability to provide services and facilities to the area. There are no major trunk water mains or sewer interceptors or outfalls in existence in the area of land within the proposed district. The ITSMTD was created by Broward county to provide services and facilities to service the area of land within the proposed district. In addition, the application for development orders are based, recognized that the ITSMTD would be used to provide infrastructure improvements within the area. The trafficways which have been designed to serve the area within the proposed district and which are required to be built in accordance with the development orders are in accordance with the Broward County Trafficways Plan, which is incorporated by reference in the county future land use element. The ITSMTD is making use of existing local water and sewer facilities. It has entered into a contract with the City of Sunrise to purchase both water and sewer services from the City of Sunrise. (Exhibit "J"). In addition, that agreement commits the ITSMTD to make use of a regional 201 sewer facility when such facility is operational and capable of serving the district. The testimony and documentary evidence establish the following: All statements contained in the Petition are true and correct. The creation of the district would not be inconsistent with any applicable element of the Broward County Comprehensive Plan. The area of land that will be served by the district is amenable to separate district government. On March 24, 1981, the Broward County Board of County Commissioners voted to support ITSMTD's petition to reestablish the district as a community development district.
Recommendation Based upon the Findings of Fact and Conclusions of Law hereby submitted, the Hearing Officer recommends that the Florida Land and Water Adjudicatory Commission grant the Petition of the ITSMTD and adopt a rule which will reestablish the ITSMTD as the Indian Trace Community Development District. DONE and ENTERED this 10th day of April, 1981, in Tallahassee, Leon County, Florida. WILLIAM E. WILLIAMS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings This 10th day of April, 1981. COPIES FURNISHED: Robert M. Rhodes, Esquire Messer, Rhodes, Vickers & Hart Post Office Box 1876 Tallahassee, Florida 32302 David W. Wilcox, Esquire Office of the Governor Room 209, The Capitol Tallahassee, Florida 32301 Philip Shailer, Esquire 540 N. W. Fourth Street Suite B Ft. Lauderdale, Florida 33301 Donald R. Hall, Esquire 540 N.W. Fourth Street Ft. Lauderdale, Florida 33301
The Issue The issues for determination are whether petitioner, Department of Community Affairs, has standing to maintain this action, and whether the respondent's, Withlacoochee Regional Planning Council's, proposed amendments to Rule 29E-11.001, Florida Administrative Code, constitute an invalid exercise of delegated legislative authority.
Findings Of Fact The parties Petitioner, Department of Community Affairs (Department), is the state land planning agency under the provisions of Chapter 163, Part II, Florida Statutes, [the "Local Government Comprehensive Planning and Land Development Regulation Act" (LGCPA)]. As the state land planning agency for the LGCPA, the Department is charged by law with the duty to provide technical assistance to local governments in preparing comprehensive plans and with the duty to ascertain whether local comprehensive plans are in compliance with the provisions of Chapter 163, Part II, Florida Statutes. Inherent in the Department's determination of compliance is a finding that the local government comprehensive plan elements are consistent with the state comprehensive plan and the appropriate regional policy plan. Where, as here, a comprehensive regional policy plan is inconsistent with the state comprehensive plan, the performance of the Department's mandated duty is stymied absent the ability to challenge the offensive parts of the regional policy plan, and thereby bring the planning process into harmony. Accordingly, as the state land planning agency charged with the responsibility of implementing the LGCPA, the Department has a real and immediate interest in assuring consistency between the state comprehensive plan and the various regional policy plans. Respondent, Withlacoochee Regional Planning Council (Council), is a regional planning council established pursuant to Section 186.504, Florida Statutes, and consists of the Counties of Citrus, Hernando, Levy, Marion, and Sumter. Rule 29E-1.001, Florida Administrative Code. As a regional planning council, the Council is charged by law with the duty to develop a comprehensive regional policy plan that is consistent with, and which furthers, the goals and policies of the state comprehensive plan. Section 186.507(1), Florida Statutes. The existent comprehensive regional policy plan and the proposed amendments The Council has, consistent with the requirement of Section 186.507(1), Florida Statutes, adopted its comprehensive regional policy plan by rule. That rule, codified as Rule 29E- 11.001, Florida Administrative Code, adopts and incorporates by reference the Council's comprehensive regional policy plan, with an effective date of April 13, 1989. On June 9, 1989, the Council duly noticed its intent to amend Rule 29E- 11.001, Florida Administrative Code, and published notice thereof in volume 15, number 23, of the Florida Administrative Weekly. Pertinent to this case, the proposed amendments would alter the policies of the Council's comprehensive plan as they relate to resource extraction (mining) in environmentally sensitive areas. On June 30, 1989, the Department filed a timely petition with the Division of Administrative Hearings, pursuant to Section 120.54(4), Florida Statutes, contending that the proposed amendments to Rule 29E-11.001, Florida Administrative Code, were an invalid exercise of delegated legislative authority. The gravamen of the Department's challenge to the validity of the proposed rule amendments is its contention that the amendments are not consistent with the state comprehensive plan policies as they relate to mining in environmentally sensitive areas, and that the amendments fail to establish adequate standards for the Commission's decisions or vest unbridled discretion in the Commission. The policies of the state comprehensive plan pertinent to this case, as set forth in Section 187.201, Florida Statutes, are as follows: (10) NATURAL SYSTEMS AND RECREATIONAL LANDS * * * (b) Policies - 1. Conserve forests, wetlands, fish, marine life, and wildlife to maintain their environmental, economic, aesthetic, and recreational values. * * * 3. Prohibit the destruction of endangered species and protect their habitats. * * * 7. Protect and restore the ecological functions of wetlands systems to ensure their long-term environmental, economic, and recreational value. * * * (14) Mining - (b) Policies - * * * 5. Prohibit resource extraction which will result in an adverse effect on environmentally sensitive areas of the state which cannot be restored. (Emphasis added) The Council's proposed amendments to Rule 29E-11.001, Florida Administrative Code (the comprehensive regional policy plan), are hereinafter set forth, with the proposed amendments in clear text and the existing language of the rule that is to be amended lined through. In such format, the proposed amendments to the existing rule that are under challenge in this proceeding provide as follows: 14.3.1.1. Regional Policy: Resource extraction which will result in an adverse effect on environmentally sensitive areas that cannot be reclaimed or restored to beneficial use shall be prohibited. Examples of such environmentally sensitive areas are: wetlands, rivers, streams, lakes, springs, coastal floodplains, endangered species habitat, prime agricultural lands, prime groundwater recharge areas, and historically significant sites. (Emphasis added) Wetlands, rivers, streams, lakes, springs, coastal, floodplains, endangered species' habitat, prime agricultural lands, prime groundwater recharge areas, and historically significant sites shall be identified and protected by a prohibition on mining activities within those areas and the establishment of buffer zones around them. Additionally, the Council proposes to amend its implementation strategy as to Regional Policies 14.3.1.1, 14.3.1.2, and 14.3.1.3, as follows: GROWTH MANAGEMENT Local governments with assistance from other agencies should inventory their wetlands, rivers, streams, lakes, springs, coastal floodplains, endangered species' habitat, prime agricultural lands, prime groundwater recharge areas, historically significant sites, and important mineral reserves. Local governments should adopt comprehensive plan amendments and ordinances that 1) prohibit mining activities in environmentally sensitive areas if they cannot be reclaimed or restored to beneficial use; define buffer zones around the areas and resources identified above and restrict mining activities to land outside those buffers, 2) require identification and protection of archaeological properties on sites proposed for mining; 3) restrict the use of land that contains economically recoverable mineral deposits and lies outside environmentally sensitive areas to activities that will not preclude later extraction of those minerals. (Emphases added) INTERGOVERNMENTAL COORDINATION (1) DNR, GFC, FWS, SCS, DER and WMDs, within their respective areas of expertise, should help local governments to identify and map the above areas and resources and to define appropriate buffer widths. Contrary to the provisions of the state comprehensive plan which prohibit resource extraction that will adversely effect environmentally sensitive areas unless they can be "restored," the proposed amendments would only prohibit such activities if the environmentally sensitive areas could not be "reclaimed or restored to beneficial use." The terms "restored" and "reclaimed," although not defined by the proposed amendments, have commonly accepted meanings. To restore a site means to put back the same thing that had previously existed, i.e.: restore the type, nature, and function of the ecosystem to the condition in existence prior to mining. To reclaim a site is to alter its character such that beneficial use can be made of it, even though the character or function of the site may be entirely different from that which previously existed. To "restore to beneficial use" is a phrase consistent with the definition of "reclamation," and not consistent with the definition of "restoration" as that term is commonly defined. Accordingly, it is found that the proposed amendments to Rule 29E-11.011, Florida Administrative Code, are patently inconsistent with the policies of the state comprehensive plan that relate to the protection of environmentally sensitive areas and, more particularly, the policy of the state comprehensive plan that prohibits resource extraction in such areas unless they can be restored. Notwithstanding the patent inconsistency between the proposed amendments and the state comprehensive plan, the Council argued that it "intends" to interpret the proposed amendment consistent with the state plan. To this end, the Council offered the testimony of its chairman, Nick Bryant, who testified that he would interpret the proposed amendment to require that the post-mining beneficial use be the same beneficial use that existed prior to mining. The Council's vice chairman, Ralph Shepard, testified, however, that he would not interpret the proposed amendment to require that the property be returned to the same character it enjoyed prior to mining, but only that it be reclaimed to the extent necessary to provide a beneficial use. Under such interpretation, the proposed amendment would allow, for example, the total destruction of a wetland by mining even if the net result would be a borrow pit in which people could swim and water ski. The Council's contention that it would interpret the proposed amendment consistent with the state plan is not only irrelevant in view of the patent inconsistency which exists between the proposed amendments and the state plan, but is also not credible. Rather, the clear impact of the rule and the Council's "intent" may be readily gleamed from its notice of proposed rulemaking, federal comparison statement, and economic impact statement. As stated in the Council's notice of proposed rule making: PURPOSE AND EFFECT: The rule is being amended for the purpose of replacing the Comprehensive Regional Policy Plan (CRPP) previously adopted by reference, with a new version in which a policy in the mining chapter and its associated implementation strategies have been changed. The effect of the amendment will be to remove a prohibition on mining in areas that are environmentally sensitive or historically significant. * * * SUMMARY OF THE ESTIMATE OF ECONOMIC IMPACT: Opportunities for economic benefit from resource extraction will be afforded land owners and the mining industry in environmentally sensitive areas... Costs will be borne by the general public as a result of lost environmental functions and values.... (Emphasis added) As stated in the Council's federal comparison statement: The revised policy is less restrictive than the current federal wetlands policy of avoiding impacts where there are alternatives, and requiring that unavoidable impacts be fully offset in order to achieve a goal of no net loss as defined by acreage and function. And, as stated in the council's economic impact statement: A potential for economic benefit from resource extract ions will be created in environmentally sensitive areas where the CRPP restricts other development activities. Costs will occur in the form of lower water quality and the loss of wildlife habitat and other functions presently provided by the sites where mining will be allowed. * * * Expectation of benefits and costs to affected parties is based on the assumption that at least some local governments in the region will choose not to be more stringent than the CRPP, and will therefore permit mining where consistency with the Regional Plan would previously have required its prohibition. While not conceding that any inconsistency exists between the proposed amendments and the state comprehensive plan, the Council suggests that, if any inconsistency exists, other existing policies within its plan obviate any inconsistency. In support of its argument, the Council points primarily to policies 14.1.1.1, 14.1.1.3, and 14.3.1.6. An examination of such policies, as well as the Council's entire comprehensive plan, demonstrates, however, that no other policy or policies cure the inconsistency that exists between the proposed amendments and the state comprehensive plan.
The Issue The issue before the Florida Land and Water Adjudicatory Commission (FLWAC) in this proceeding is whether to grant the Petition to Establish the Arborwood Community Development District (Petition), dated November 17, 2003. The local public hearing was conducted for the purpose of gathering information in anticipation of rulemaking by FLWAC.
Conclusions Having considered the record in this cause, it is concluded pursuant to Section 190.005(1)(e)1 through 6, Florida Statutes: That all statements contained within the Petition, as amended, are found to be true and correct. That the creation of the district is not inconsistent with any applicable element or portion of the State Comprehensive Plan or the effective local comprehensive plan. That 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. That the district is the best alternative available for delivering community development services and facilities to the area that will be served by the district. That the community development services and facilities of the district will be compatible with capacity and uses of existing local and regional community services and facilities. That the area that will be served by the district is amenable to the special-district government. DONE and ENTERED this 25th day of October, 1990, in Tallahassee, Florida. CHARLES C. ADAMS, 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 25th day of October, 1990. COPIES FURNISHED: Ken Van Assenderp, Esquire George L. Varnadoe, Esquire Post Office Box 1833 Tallahassee, FL 32302-1833 Larry Haag, Esquire Citrus County Courthouse 110 North Apopka Avenue Inverness, FL 32650 Steven Pfeiffer, Esquire Alfred Bragg, Esquire Department of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100 Patricia A. Woodworth, Secretary Florida Land and Water Adjudicatory Commission The Capitol, PL-05 Tallahassee, FL 32399-0001 William Buzzett, Esquire Florida Land and Water Adjudicatory Commission The Capitol, PL-05 Tallahassee, FL 32399-0001 David Maloney, Esquire Florida Land and Water Adjudicatory Commission The Capitol, PL-05 Tallahassee, FL 32399-0001 Jeannette Haag, Esquire Withlacooche Regional Water Supply Authority 452 Pleasant Grove Road Inverness, FL 32652
