The Issue The question in this case is whether GDC should be authorized to go forward with development of some 2,000 acres, a portion of the Myakka Estates project it has planned for North Port in south Sarasota County, and, if so, on what terms. In the prehearing order dated February 8, 1980, the legal issue was stated broadly as "whether the proposed development [Phase I] comports with the standards of Chapter 380, Florida Statues (1979), as set forth in Section 380.06(8) and (11), Florida Statutes (1979) [now 380.06(11) and (13), Florida Statues (Supp. 1980)]." An important question is what legal effect the Master Development Order should be given in the present case. In the same prehearing order, factual issues were stated to include whether the "location . . . [and] approval of the proposed land sales development is consistent with the report and recommendation of the SWFRPC in light of the State, County, and North Port comprehensive plans"; whether "the proposed development will, individually and in combination with approved development, overburden the public school system . . . . overburden the public roads . . . [or] create a negative economic impact upon county and municipal governments"; and whether "GDC has provided for sufficient potable water."
Findings Of Fact GDC proposes to develop 8,135 acres in North Port in Sarasota County, just north of the Charlotte County line, as a new community, to be called Myakka Estates. Phase I, the group of three units slated for development next after the "vested portion" of the project, is designed to occupy a 2,016.56-acre tract within the larger parcel, west of and well upland from the Myakka River, and approximately four miles inland from the Gulf of Mexico. PRESENT CONDITION OF LAND The highest elevation on Phase I is 13 feet above mean sea level. About three quarters of Phase I is covered with slash pine, southern pine, and saw palmetto. Pasture lands, about seven percent of the Phase I tract, are covered with grasses, sedges, other herbaceous plants, and only occasional trees. Freshwater marsh ponds and other marshy areas are distributed more or less evenly over the property in a karstic gestalt, except that an uninterrupted stretch of marsh along the western boundary marks the eastern edge of the northern reaches of Ainger Creek, which further downstream flows across the southwest tip of the property. in the wet areas, limnophilous vegetation, including sportios bakeri, cyperus spp., cladium mariscoides, rhychospora ap., hypericum aspalathoides, xyris iridefolia, eriocaulon decangulare, eleocharis equistoides, pontederia cordota, bacopa caroliniana, and hydrocotyle umbellata, predominates. Opossums, eastern moles, raccoons, otters, and bobcats have been spotted on the Phase I property. Among other mammals whose range includes the Phase I property are shrews, bats, black bear, longtail weasel, mink, Florida panther (Burt and Grossenheider) skunks, gray fox, mountain lion, squirrels, southeastern pocket gophers, rats, mice, rabbits, whitetail deer, and armadillo. People have seen eastern rattlesnakes, pygmy rattlesnakes, water moccasins, eastern garter snakes, yellow rat snakes, anolis carolinensis (a lizard), snapping turtles, common musk turtles, box turtles, gopher tortoises, spiny softshell turtles, bull frogs, leopard frogs, cricket frogs, green tree frogs, and American toads on the Phase I property. There is reason to believe that numerous other snakes, frogs and lizards inhabit the property. On high ground in the Phase I property, people have seen turkey vultures, black vultures, red-tailed hawks, red-shouldered hawks, kestrels, bobwhites, turkeys, mourning doves, ground doves, flickers, red-billed woodpeckers, eastern kingbirds, blue jays, Carolina wrens, mockingbirds, catbirds, robins, loggerhead shrikes, meadowlarks, red-wings, boat-tailed grackles, cardinals, Florida sandhill cranes, and bank swallows. On westland portions of Phase I, people have seen pied-billed grebes, anhingas, great blue herons, American egrets, ivory egrets, Louisiana herons, little blue herons, green herons, least bitterns, wood storks, white ibis, red-winged blackbirds, purple grackles, killdeer, southern bald eagles, and limpkins. Limpkins, wood storkes, southern bald eagles, and Florida sandhill cranes are endangered species. Various fishes live in waters on the Phase I property, including lake chumbuckers, golden shiners, yellow bullheads, flagfish, golden topminnows, four different killifishes, mosquito fish, sailfin mollies, warmouths, bluegills, and three kinds of sunfish. The common prawn the Florida crayfish, and the neritina reclivata also inhabit one or more water bodies on the Phase I tract. Insect populations are relatively low because of the abundance of piscine insectivores. Before GDC acquired the property, men dug ditches which connect several ponds and cause stormwater to drain through them into Ainger Creek which empties into Lemon Bay. Drainage into the ponds and connecting ditches is by sheet flow. Cow dung in the pastures is concentrated around certain ponds, where cattle drink; and may account for some of the nonhuman fecal coliform bacteria that are to be found in Lemon Bay. Part of the Phase I property drains by sheet flow into the Myakka River. The topsoil is sandy on the Phase I tract. In the vicinity of Ainger Creek, Pompano find sand and Keri find sand predominate. These sands, Delray fine sand and Plummer fine sand, are found in most of the low-lying areas on the property. Leon fine sand covers most of the high ground. There is a strip of Immokalee fine sand along the northern border of the Phase I tract other than as pasture or for tree farming would be energy intensive. One expert proposed hydroponic cultivation. ANNEXATION GDC acquired the Myakka Estates property from a rancher in 1970 or 1971, then took steps to cause the parcel to be annexed by the City of North Port, within the municipal boundaries of which other substantial GDC development was already located. The annexation took place notwithstanding the absence of any bridge or road connecting the Myakka Estates parcel to the rest of North Port. These two parts of the City of North Port touch at a corner but are not otherwise contiguous. Some 100,000 lots have been platted in North Port east of the Myakka river; over 90,000 were still vacant at the time of the hearing. At 68 square miles, North Port, with a population of five to eight thousand, is second in land area only to the consolidated City of Jacksonville, the municipality with the largest land area in the state. LAND USE RESTRICTIONS By ordinance of the City of North Port, the entire Myakka Estate parcel is zoned agricultural and has been at all pertinent times. On September 9, 1974, however, North Port entered the Master Development Order authorizing development of all "non-vested" portions of Myakka Estates. In consideration of the Division of State Planning's forbearance from taking an appeal of the Master Development Order to the Land and Water Adjudicatory Commission, GDC agreed to submit "supplemental Applications for Development Approval as a condition to development of specific increments of the master residential plan," GDC Exhibit No. 12, a requirement also imposed by the Master Order itself. North Port has a subdivision ordinance with which, according to the uncontroverted evidence, the proposed Phase I development is in compliance. In June of 1979, North Port adopted a Comprehensive Development and Growth Management Plan, GDC Exhibit Nos. 23 and 91, in accordance with Section 163.3184, Florida Statutes (1979). Because of the pendency of the present proceedings, the SWFRPC and the DCA objected to inclusion of Phase I in the North Port plan. As a result of the objections, the plan makes little reference to Phase I although it notes that planning for Phase I "was conducted in conformance with present standards and was recently approved by the [North Port] Planning Commission and City Commission [apparently by adoption of the Development Order challenged in these proceedings]." GDC Exhibit No. 91, at 28. Stated as an objective of North Port's Comprehensive Development and Growth Management Plan, at p. 22, is To encourage growth that is relatively contiguous to the existing developed area and encompasses within the 25-year period the area bounded on the north by McCarthy Boulevard and Snover Waterway, on the east by Blue Ridge Waterway, and on the south and west by the city limits. GDC Exhibit No. 91. Other stated objectives are to "encourage consistency with and between Florida's Growth Management and Land Development Elements" and Sarasota County's Land Use Plan. It was uncontroverted that plans by General Development Utilities to furnish water and sewer service to Phase I are in conformity with provisions of the North Port plan on those subjects. Sarasota County has never adopted a comprehensive plan in accordance with Section 163.3184, Florida Statutes (1979), but the county does have the Land Use Plan, GDC Exhibit No. 93, referred to in the North Port plan. The Sarasota County Land Use Plan map designates the unincorporated area adjacent to Myakka Estates as appropriate for agriculture. The county has zoned the area along South River Road (formerly State Road 777), immediately adjacent to Myakka Estates, "QUE-1", Open Use, Estate, one dwelling unit per five acres, and the area further west "OUR", Open Use, Rural, one dwelling unit per ten acres. According to a map that is part of the Sarasota County Land Use Plan, Myakka Estates falls in the "low density residential" category, 1.1 to 4.5 units per acre. By its terms, however, this plan applies only to unincorporated areas of Sarasota County. The portion of the Phase I property lying in the easterly half of Section 33, Township 40 South, Range 20 East is within the jurisdiction of the Englewood Water District, which was created by Chapter 59-931, Laws of Florida. At the time of the final hearing, the whole area of EWD was on septic tanks and EWD's water lines did not reach Section 33. Some 166 lots are planned for the portion of Phase I over which EWD has jurisdiction. EWD has a policy of not permitting other water systems within the area served by the district. Its current regulations containing specifications for water and sewer mains and the like were adopted on June 19, 1980. The Florida State Comprehensive Plan, GDS Exhibit No. 92, is an internally inconsistent compilation of "goals", "objectives", and "policies". It was adopted by executive order and approved by the Florida Legislature in 1978. In their proposed recommended orders, the parties identified the following items as being in controversy: Ensure that the expansion of public facilities for economic development is in accordance with local government comprehensive plans and the State Comprehensive Plan. Consider the projected availability of energy when making economic development decisions. Physical, natural, economic, and human resources should be managed and developed in ways that avoid unnecessary long-term energy- intensive investments. Incorporate energy as a major consideration into the planning and decision-making processes of state, regional, and local governments. Encourage land use patterns that by design, size, and location minimize long-term energy commitments to construction, operation, maintenance, and replacement. Encourage a careful, ongoing evaluation of governmental expenditures and revenues in light of future uncertainties about energy supplies and related economic implications. To ensure the orderly long-range social, economic, and physical growth of the state. Identify the costs and benefits of growth to local and state governments and explore methods for allocating these costs to the citizens equitably. Housing should be produced in a mix of types, sizes, and prices that is based on local and regional need and that is consistent with the state's growth policy. Land use and development should proceed in an orderly manner that produces an economically efficient and personally satisfying residential environment with with minimal waste of our land resources. The provision of public facilities, utilities, open space, transportation, and other services that are required to support present and projected housing and community development needs should be ensured. Develop environmentally responsive land planning methods that reduce the stress that new develop- ments place on their communities' energy needs, water needs, sewage treatment facilities, transportation, flood control systems, and social, and educational services, and thus reduce the overall taxes and cost of the services needed to satisfy these demands. Consider energy implications in the review of applications for developments having regional impact (DRI). Land development should be managed in a manner consistent with the values and needs of the citizens of the state and with the concept of private property rights. Agricultural lands, especially those most seriously threatened, should be maintained and preserved for the production of food and fiber products. Influence the timing, distribution, type, density, scale, and design of development by coordinating land development proposals in state and local comprehensive plans and public investment programs in order to ensure the availability of adequate public facilities, services, and other resources. Allocate an equitable share of the cost of expanding public facilities to the newly served residents. Base land development decisions on quantita- tive knowledge of the short- and long-term capabilities of the hydrologic units to provide adequate supplies of water. Coordinate land use planning and water management to ensure the long-range maintenance and enhancement of water quantity and quality. Accommodate new development by using water from the local hydrologic basins rather than through surface water transfer between hydrologic basins. Protect groundwater supplies from saltwater intrusion by the regulation of withdrawals, maintenance of adequate recharge of groundwater, and prevention of saltwater movements inland through coastal canals. Maintain groundwater levels to insure that water levels are not drawn to such a degree that sustained yield is adversely affected or that natural resource degradation takes place. Protect groundwater supplies from saltwater intrusion by the maintenance of a sufficient amount of groundwater in coastal aquifers to prevent intrusion through regulation of withdrawals, maintenance of adequate recharge, and sufficient controls on coastal canals. Protect and maintain groundwater supplies and aquifer recharge areas through water- and land- management practices and, where necessary, through regulation of development activities. Allow alteration of groundwater movements within or between aquifers only where it can be shown that such alterations are not harmful to surface and groundwater resources. Develop minimum service standards for utility systems. Encourage the provision and maintenance of adequate utility systems in already developed areas. In areas where utility systems are over- burdened, manage growth while remedial measures are expedited to restore utility systems to a condition of adequacy. Encourage the effective use of utility systems, energy, land, and finite resources by evaluating and revising, if necessary, laws and regulations that may bar innovative development patterns, designs, and materials. Although authorized to do so by statute, Section 380.06(2)(a), Florida Statutes (Supp. 1980), the Administration Commission has not adopted guidelines and standards for developments of regional impact by administrative rule. PROPOSED DEVELOPMENT After development, water would cover 59.41 acres of Phase I and mostly low lying "open space/green belts" would account for another 504.69 acres. An additional 143.32 acres are planned for recreational uses. Roads and utility easements would account for 398.54 acres. GDC has agreed to construct a municipal services building in the vested portion of Myakka Estates, on a parcel across the street from Phase I. In Phase I, GDC plans to set aside 20.06 acres for an elementary school and 6.97 acres for neighborhood retail outlets. GDC has announced its intention to donate the school site to the Sarasota County School Board. Other school sites have been set aside within Myakka Estates. A large commercial area on a major arterial road is planned for the vested portion and a golf course and other recreational facilities, as well as an industrial site, are planned for later phases of development. Over a 33-year period, GDC plans to build 1,056 multifamily units on 92.61 acres and expects 2,859 single family detached houses to be built, by GDC and other contractors, on lots averaging approximately a quarter of an acre and aggregating 790.06 acres. The average envisioned for Phase I is 1.94 dwelling units per acre as compared to 2.33 dwelling units per acre for Myakka Estates as a whole. In the vested portion of Myakka estates and in the contiguous area to the south GDC is developing "multiple cores". Similarly, two distinct neighborhoods are contemplated in Phase I. GDC plans to build multifamily housing complexes in the neighborhood "cores" to be surrounded by single family detached houses, with vacant lots in between these neighborhood centers. GDC hopes to sell 1,927 unimproved lots in Phase I on an installment basis. Typically the purchaser would undertake to make installment payments over a ten-year period and GDC would agree to construct central water and sewer distribution systems and to pave access roads by the end of the period. A purchaser would be permitted to make prepayment but GDC would only be obligated to convey the lot at the end of the agreed term. GDC plans it so that installment payments will provide GDC enough money to install water and sewer systems and pave roads before GDC is obligated to convey the improved lots. All expenses of hocking up to the water or sewer system, including extending mains, where necessary, are to be borne by the purchaser. the purchaser must secure a building permit before GDC becomes obligated to furnish water. In the event GDC is unable to perform, however, the contract requires the purchaser to choose between accepting a refund of the purchase price and exchanging the lot for another lot. Under certain circumstances the lot owner is allowed a credit against purchase of a home from GDC in addition to the equity in the lot. In 1979, three quarters of the houses GDC sold were sold to lot owners who exercised their option to exchange the equity in houses in a core area, and 99 percent of the houses GDC sold in North Port were located in "core areas". At the time of the hearing, there were already hundreds of thousands of unimproved lots in Lee, Charlotte, and south Sarasota Counties and hundreds of miles of little used roads providing access to the lots. AIR POLLUTION The uncontroverted evidence was that air pollution anticipated as a result of the proposed development, chiefly from automobile exhaust, would not violate state or federal air quality standards. STORMWATER The planned stormwater drainage system has been designed to retain one inch of runoff before discharge from the Phase I property and to prevent flooding of the portions of the property slated for development during storms of up to 25 years return frequency and 24-hour duration. Stormwater in the Ainger Creek watershed will drain from roads and lawns into front- and sideyard swales, to broader, shallow, grassy collector swales, through a series of shallow ponds (with a maximum depth of six feet) equipped with control structures and into Ainger Creek in which GDC has already constructed a weir with a flap gate. Some stormwater will percolate through the sandy soils into the groundwater and, except under the most extreme conditions, groundwater will reach Ainger Creek only after most pollutants have been precipitated or filtered out biologically. Water in the Myakka River watershed will reach the river by sheet flow which, depending on conditions, will also be diminished by percolation and purified by precipitation and biological filtration. Under extremely wet conditions, water entering the Myakka River and Lemon Bay from Ainger Creek will contain pollutants normally associated with residential development, mostly high concentrations of nutrients and small concentrations of heavy metals. GDC's employee's testimony that water entering Lemon Bay will be of a higher quality after development than at present, although uncontroverted, is rejected as incredible, although it could conceivably hold true under mild meteorological conditions. Ainger Creek's flood plain extends east from the thalweg some distance into the Phase I property. See GDC Exhibit Nos. 69, 70, 71, and 72. On preliminary flood insurance rate maps, the United States Department of Housing and Urban Development (HUD) has identified special flood hazard zones along the creek which include 169 acres in proposed Unit 5 in which a minimum elevation of ten feet has been recommended for any habitable space (A-9) and 263 acres in Sections 26, 33, and 34 in which a minimum elevation of 11 feet has been recommended for any habitable space (A-10). The lowest street elevation proposed for the A-10 zone is seven feet. GDC normally adds two to two-and-a- half feet of fill to existing grade before erecting houses, but can add more. The weir across Ainger Creek and the proposed control structures where water outfalls into swales allow the retention upstream of water which otherwise might have flowed into Lemon Bay. Water retained on the Phase I property and elsewhere upstream can percolate through the topsoil and replenish the groundwaters. The weir on Ainger Creek acts as a barrier against the movement of salt water upstream. For both of these reasons, the proposed drainage system should decrease any danger of saltwater intrusion into freshwater aquifers in the area. In the event substantial amounts of salt water (or some pollutant) are introduced into Ainger Creek upstream of the weir, the weir is designed to permit the Creek to be flushed. ECONOMIC IMPACT ON PRIVATE SECTOR Except in the core areas, where GDC plans to market improved real estate, contractors other than GDC would have an opportunity to bid on construction contracts for new houses, a decade or so after installment land sales proposed for Phase I begin. Even before construction of housing, roads would have to be paved, water and sewer pipes would have to be laid, and other utilities would have to be installed. Thousands of people living on the new unpopulated Phase I property would mean additional jobs in the private and public sectors. Since there are already more than 641,000 vacant subdivision lots in the Charlotte Harbor area, however, the region is presumably in little danger of losing out on additional population for want of land developments. FISCAL IMPACT ON LOCAL GOVERNMENT Using census and other population data and reviewing GDC's sales records in other land developments, J. Thomas Campbell, a GDC employee, has projected a 47-year development or build-out schedule for Myakka Estates, forecasting, among other things, how rapidly housing units will be built in Phase I. Taking the build-out schedule as a given, Paul G. Van Buskirk, a GDC consultant, assumed an average household size increasing linearly through time and projected population growth in Phase I year by year for 33 years. Mr. Van Buskirk made assumptions about average household size, the proportion of population over age 65, and the proportion of population of school age, only after examining data of this kind from ten other communities housing mainly retired persons, which he thought would be comparable. He distributed school children among elementary, middle, and high schools on the hypothesis that the proportion would be the same as obtained in the Tampa-St. Petersburg area. In 1975, Mr. Van Buskirk projected streams of revenue and expenditure for local governments attributable to Phase I, forecasting a surplus for North port, Sarasota County, and the Sarasota County School District (School District). He assumed the value of an average house to be $40,000 in 1975 dollars, that market value would be the same as assessed value, and that then current mileages would remain constant. He also projected, in 1975, a tax base in North Port of $119,000,000 in 1979, in 1979 dollars. In fact, North Port's 1979 tax base was $122,000,000. In 1975, he projected a surplus for North Port in 1979 of $905,000 in 1979 dollars ($662,000 in 1975 dollars). In 1979, the surplus was, in fact, slightly more than $700,000. The difference between the projected surplus and the actual surplus is attributable to North Port's decision to retain the same level of services it had in 1975 while lowering the ad valorem tax rate. In his 1975 calculations, Mr. Van Buskirk made no attempt to reduce later years' dollar figures to then present values. In response to criticism by Dr. Fishkind, Sarasota County's economist, Mr. Van Buskirk reduced revenues and expenditures he had projected to present values, by assuming a discount rate of 7.5 percent. This discount rate was chosen to represent the cost of money obtainable by selling tax exempt bonds. At the same time, he posited a ten percent return compounded annually on projected surpluses. After this revision, as before, he forecast a favorable fiscal impact on North Port, Sarasota County, and the School District. CITY OF NORTH PORT The weight of the evidence showed that the fiscal impact of development of Phase I on the City of North Port would probably be favorable. Mr. Van Buskirk's model predicted fiscal developments in North Port with impressive accuracy. The large surpluses projected for the early years of development could not be counted on, however, because they would add to the already existing surplus ($8,000,000 in June of 1980) and to political pressures to lower taxes in such circumstances. North Port's recent reduction in millage, in the face of a growing surplus, evidences a predictably recurring tendency. Even though Phase I is ten miles from the center of North Port, the municipal services building GDC has agreed to build should make this distance a relatively insignificant factor in delivering some municipal services, according to Dr. Fishkind. Volume X, pp. 113-114. SARASOTA COUNTY In projecting what expenditures Sarasota County would make, if Phase I is developed according to schedule, Dr. Fishkind subtracted water and sewer costs but no others from per capita base-year figures to arrive at a per capita figure of $137.02 in 1975 dollars, to which he added special costs projected by Sheriff Hardcastle for law enforcement and Mr. Longworth for roads. Because all three of these figures are significant overstatements, Dr. Fishkind overstated expenditures significantly when he calculated Phase I's negative fiscal impact on Sarasota County over the course of the development as $8,100,000 in 1979 dollars. Dr. Fishkind also failed to include surpluses that would be furnished to county government early on in the development. Mr. Van Buskirk's base year per capital figure is a closer approximation of per capita costs that would be fairly attributable to residents of Phase I, but road and law enforcement costs are probably understated. No increase in real sots is projected and the combined effect of using a 100 percent assessment ratio and ignoring costs of sales is to overstate tax revenues. When Mr. Van Buskirk assumed a 79 percent assessment ratio and an average house value of $35,000 in 1975 dollars, he still projected a $449,000 positive fiscal impact on Sarasota County from development of Phase I. That calculation also included the ten percent interest compounded annually imputed to surpluses, however, without any showing that surpluses from Phase I would be invested rather than expended for some other county purpose, making simple discounting appropriate. Although the evidence is far from clear, it suggests, on balance, that the fiscal impact of Phase I on Sarasota County would be negative. CHARLOTTE COUNTY Charlotte County's public roads, recreation facilities, and schools would be used by the residents of Phase I, if all goes as planned, and Charlotte County would not have the offsetting benefit of ad valorem taxes from Phase I, although it would receive certain offsetting benefits on account of additional students under the current intergovernmental agreements. Phase I's development would have a negative fiscal impact on Charlotte County and the Charlotte County School District. SCHOOL DISTRICT Phase I is some five miles from Englewood Elementary School, ten miles from Venice Gardens Elementary and five to seven miles from Lemon Bay Junior- Senior High School in Charlotte County which accepts students from Sarasota County under the terms of an intergovernmental agreement. These schools are presently operating at or above capacity. Under current conditions, a major development anywhere in Sarasota County would be a burden to the school system. A survey of the school district's capital requirements for the next five years suggests some $67,445,817 will be needed for new construction. Of this, Sarasota County expects to receive $15,797,414 from State sources. Phase I is not expected to house any school children in the next five years, however. In the tenth year of development, the projection is that 489 elementary students, 245 junior high students, and 244 senior high students would live in Phase I, necessitating the construction of at least the first "phase" of an elementary school. Exclusive of site acquisition costs, an elementary school costs about $4,000,000; a junior high school costs about $19,000,000; and a senior high school costs about $18,000,000. If development of Phase I occurs at or above the rate projected by GDC, the net fiscal impact on the School District would probably be negative, but if development lags significantly behind predictions, as Dr. Fishkind testified was likely, the additional years of tax revenues before Phase I places major demands on the school system could well result in a positive fiscal impact on the School District from development of Phase I. POTABLE WATER General Development Utilities (GDU), a subsidiary of GDC, has a franchise from North Port to furnish water within the city limits, including Myakka Estates, except in the portion of Section 33 where EWD has jurisdiction. GDU is a private, not a public, utility, but its use of ground and surface waters renders the water used unavailable to another utility. At an existing water treatment facility on Myakkahatchee Creek, in North Port, about ten miles from Phase I, GDU treats 4.2 million gallons of water a day (mgd), but could treat 8 mgd. GUD also operates a water treatment complex in Fort Ogden on the Peace River, six or seven miles downstream from Arcadia. At the time of the hearing, GDU had the ability to pump 1.5 mgd from the Peace River complex to North Port and Myakka Estates. The Peace River facility includes a raw-water intake structure, a reservoir, and a treatment plant. It has a capacity of 6 mgd although some of its components have larger capacities. The intake structure and 36-inch transmission lines can handle 30 mgd and the filter units have a capacity of 15 mgd. The reservoir covers some 90 acres and has a capacity of 800,000,000 gallons. In all, GDU has reserved 1,000 acres for use as a reservoir, although the need for such a large reservoir is not anticipated even by the year 2050. GUD does not plan to expand the existing reservoir for another ten years. Southwest Florida Water Management District (SWFWMD) has permitted GDU to withdraw up to an average of 5 mgd from the Peach River not to exceed five percent of the day's flow. At Arcadia, the Peace River's daily flow varies seasonally from 32 mgd to ten billion gallons per day. Except for 36 days a year (on the average), 5 mgd is less than 5.7 percent of the low flow of the Peace River. GDU can fill its reservoir by diverting water from the Peace River at times of high flow, so as to get the best water quality, and cause the least proportional diminution of the river's flow. GDU plans to withdraw an average of 13 mgd from the Peace River when capacity of the facility at Fort Ogden reaches 30 mgd. This is approximately 1.5 percent of the Peace River's approximately 800 mgd average flow at Arcadia. Some of the diverted water will never reach Charlotte Harbor because of evaporation at various points. Other water transported to Myakka Estates from the Peace River, whether treated at Fort Ogden or at North Port, would be used for irrigation, and some of this water would drain into Lemon Bay by Ainger Creek and never reach Charlotte Harbor. Most of the water diverted into the Peace River reservoir will eventually make its way through homes in GDC developments into wastewater plants, from there into the groundwater, and ultimately into Charlotte Harbor. Even when water from the Peace River reaches Charlotte Harbor by this route, however, there will ordinarily have been an interbasin transfer. The quality of water in the Peace River is good. If it were necessary to augment river water at the Peace River plant, well water from aquifers in the vicinity would be available. Because this well water is brackish, however, it would be blended with the river water to produce a mixture low enough in chlorides to be potable. Surface water from Myakkahatchee Creek and Snover Waterway could also be transported to the Peace River reservoir, at a rate of 13.5 mgd. Myakkahatchee Creek discharges 20 billion gallons of water into Charlotte Harbor annually. Treating water at the Peace River facility requires about two kilowatts per 1,000 gallons of water. Brackish water is available from well fields in the vicinity of Myakka Estates property, but treating brackish water by reverse osmosis requires about 11 kilowatts per hour. Phase I would, of course, add to future demand for potable water. SEWERAGE By ordinance, North Port requires that new homes be equipped with 3.5- gallon flush toilets instead of the standard 5-gallon models. Since 40 percent of the water used in the average household goes through the toilet, this is an important water conservation measure. GDU plans to provide a sewer system for the whole of Myakka Estates including initially an activated sludge sewer plant with a rated capacity of 250,000 gallons a day to be located on a 40-acre parcel reserved for that purpose. Effluent from the plant would be discharged into a polishing pond then sprayed over soil planted with vegetation to take up nitrogen and phosphorus, through which it would percolate into the groundwater. Once the Myakka Estates plant reached capacity, sewerage would be transported to Gulf Cove in Port Charlotte, six miles from the Phase I property, where an existing plant with a capacity of 333,000 gallons a day now processes 100,000 gallons a day. At the Gulf Cove plant site, GDU has 163 acres available for plant expansion. SOLID WASTE Solid waste from Phase I would be taken to the existing North Port landfill some nine miles distant, as long as that could be used. A second layer of solid waste was being laid down there at the time of the hearing. Monitoring wells had been dug to detect leachates leaving the landfill. A 90-acre site for a new landfill to serve all of North Port has been chosen within the 100-year flood plan of the Myakka River. GDC has agreed to construct the new landfill and lease it to North Port for operation by the city. The use of solid waste for energy production is not feasible, unless quantities on the order of 200 tons a day are available. Part or all of Charlotte County produces about 100 tons a day of solid waste. Per capita, people produce about 5.5 pounds per day of solid waste. LAW ENFORCEMENT Because of the location proposed for Myakka Estates, traffic from Phase I to the already developed center of North port will travel outside the city limits for part of the trip. Travelers from Phase I bound for the commercial district in North Port will pass through unincorporated Sarasota County, except those taking the longer route through Charlotte County. Travel from Phase I to any other municipality in Sarasota County would require passing through unincorporated Sarasota County. At the time of the hearing, the nearest substation of the Sarasota County Sheriff's Office was approximately 30 miles from the Phase I property. At some point, as Myakka Estates becomes populated, depending upon traffic patterns, the Sheriff would create a new Sheriff's patrol zone at a cost of $180,000 (1980 dollars), if present policy on these matters holds. Not all of this amount could fairly be attributed to development of Phase I, although the costs of the proposed development (including Phase I) to the Sarasota County Sheriff's Office would be significantly greater than the costs would be if the same population moved into the area contiguous to the existing center of North Port. North Port plans to furnish primary police protection within its city limits, staffing and equipping the 2,400 square feet municipal services center GDC has agreed to build in the vested portion of Myakka Estates. City prisoners are housed in the county jail, however, and the sheriff's office serves civil process in North Port. In residential land developments in the Charlotte Harbor area, where the roads have typically been laid out rectilinearly, a problem in the interval between road building and construction of housing has been the use of roads as airstrips by smugglers and as drag strips by racing enthusiasts. TRANSPORTATION Within Phase I, streets are to be laid out curvilinearly. Minor collectors are to feed major collectors which are to feed minor arterials which are to feed major arterials, with limited access to larger roads. Three and one-half miles of bicycle paths are planned. No mass transit system is contemplated for Phase I nor would Phase I be able to accommodate a right-of-way for a mass transit facility. There is no mass transit system in Port Charlotte or North Port. The viability of Phase I depends on continued mass ownership and operation of automobiles. U.S. Highway 41, a four-lane divided arterial, runs east and west north of the Myakka Estates property, then through the southwestern corner of the main part of North Port. When I-75 is finished, development may be skewed in its direction, drastically affecting traffic patterns; I-75 is slated to pass north of the property in two or three years. intersecting U.S. Highway 41, running south then southwest to the west of the Myakka Estates property, is South River Road (State Road 777), a two-lane arterial that ends in Englewood and currently handles about 2,000 trips daily. It will require four-laning when the number of daily trips reaches 10,000. South of the property in Charlotte County, another two-lane arterial, State Road 776 runs east-west, dead ending into State Road 771 which crosses the Myakka River at El Jobean and proceeds northeast to Murdock, where it intersects U.S. Highway 41, south of the main area of North Port. GDC has agreed to pave a two-lane road from the vested portion of the Myakka Estates property through Phase I to South River Road (State Road 777). by this route, a trip from the middle of Phase I to the commercial area in North Port would involve a trip of about ten miles. The distance from the middle of Phase I to the nearest post office, which is in Englewood, is approximately 6.5 miles; to Gulf Cove, approximately six miles; to Murdock, approximately 11.5 miles; to a shopping district in Venice, approximately 14.5 miles; and to the nearest hospital, in Venice, approximately 16.5 miles. Sarasota is about 30 miles north and Ft. Myers is some 40 miles distant in the other direction. It is to Sarasota and Ft. Myers that new inhabitants of Myakka Estates would be obliged to travel for concerts, plays, art galleries, and the like. Thee are commercial airports in Ft. Myers and Sarasota. GDC's expert assumed most of the traffic leaving Myakka Estates would travel south to points in Charlotte County because of anticipated development there. Sarasota County's expert assumed most of the traffic leaving Myakka Estates would travel to points in Sarasota County based on ratios of already developed commercial acreage and on an apparently inadvertent chronological mismatching of projected retail and total employment figures: for Venice in Sarasota County year 2000 projections were used while 1990 projections were used for competing areas to the east of Myakka Estates. Development of Phase I would have a substantial and costly impact on public roads in the vicinity. Both new construction and improvement of existing roads would be required, although mainly in rural areas. At least by the time Myakka Estates is fully populated, South River Road, State Road 776, and State Road 771, including the bridge across the Myakka River would have to be four- laned. While the direction of future traffic is disputed, the prospect of thousands of automobiles operating in the area as a result of a fully populated Phase I is very clear. It is impossible to say with certainty which road would have to be widened in which year or what share of the cost should be attributed to Phase I as distinguished from the rest of Myakka Estates and other development in the area, but the eventual impact of Phase I would require expenditures of millions of dollars for public roads. Sarasota County has identified road improvements it needs to make before the year 2000, without taking Myakka Estates into account, and puts their cost at $387,000,000, which is $110,000,000 more than is projected to be available. EMPLOYMENT ACCESSIBILITY Most of the people expected to live in the Phase I development are retired persons who would not be regularly travelling to and from a place of employment. Very few employment opportunities in retail sales and professional offices are forecast for Phase I. The vested portion of Myakka Estates is projected to have significantly more opportunities of this kind. In the beginning, most persons seeking employment would have to travel at least as far as Englewood. At build-out, a later phase of Myakka Estates may afford industrial employment opportunities. SWFRPC REPORT The Master ADA was filed with the Tampa Bay Regional Planning Council, rather than with SWFRPC, because Sarasota County was part of the Tampa Bay Region at the time. The Tampa Bay Regional Planning Council recommended granting the Master ADA on conditions which were subsequently incorporated into the Master Development Order. The Phase I ADA was filed with the SWFRPC. In May of 1975, the SWFRPC issued its report recommending against approval of the Phase I ADA on various grounds, including the physical separation of the proposed development from presently developed areas and necessary services; the existing abundance of vacant platted lots and miles of deserved paved streets in the Charlotte Harbor area; creation of a need for an urban water supply, schools, police, and emergency medical facilities and services far from the areas where the affected local governments have planned to provide such facilities and services; and the adverse fiscal impact of the proposed development on local governments. The report was received in evidence to show what North Port reviewed before entering its development order but it was not offered as proof of the SWFRPC assertions in it.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the Florida Land and Water Adjudicatory Commission enter a development order granting GDC's Phase I ADA on such conditions as the Commission shall deem appropriate, including all the conditions contained in the Development Order entered by North Port and the following additional conditions: That GDC sell no lots in the special flood hazard zones as indicated on HUD's preliminary flood insurance rate maps, GDC Exhibit Nos. 69, 70, 71 and 72. That GDC sell no lots within EWD's jurisdiction until and unless EWD shall agree to such a sale in writing. That GDC unconditionally deed to the Sarasota County School District the elementary school site planned for Phase I together with the 50 lots nearest to the site. DONE AND ENTERED this 6th day of January, 1981, in Tallahassee, Florida. ROBERT T. BENTON II Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of June, 1981. COPIES FURNISHED: Parker D. Thomson, Esquire Kenneth W. Lipman, Esquire and Douglas M. Halsey, Esquire 1300 Southeast First National Bank Building Miami, Florida 33131 C. Laurence Keesey Department of Community Affairs Room 204, Carlton Building Tallahassee, Florida 32301 David E. Bruner, Esquire 581 Springline Drive Naples, Florida 33940 Richard E. Nelson, Esquire and Richard L. Smith, Esquire 2070 Ringling Boulevard Sarasota, Florida 33577 Robert A. Dickinson, Esquire 70 South Indiana Avenue Englewood, Florida 33533 John W. Field Englewood Community Organizations 227 Bahia Vista Drive Englewood, Florida 33533 Wayne Allen, Esquire General Development Corporation 1111 South Bayshore Drive Miami, Florida 33131 Mayor Margaret Gentle City of North Port North Port, Florida 33595 Allen J. Levin 209 Conway Boulevard Northeast Port Charlotte, Florida 33952 Office of Planning and Budget Executive Office of the Governor 311 Carlton Building Tallahassee, Florida 32301 The Honorable Robert Graham Governor, State of Florida The Capitol Tallahassee, Florida 32301 The Honorable Jim Smith Attorney General The Capitol Tallahassee, Florida 32301 The Honorable Ralph Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301 The Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32301 The Honorable William Gunter State Treasurer and Insurance Commissioner The Capitol Tallahassee, Florida 32301 The Honorable Gerald Lewis State of Florida Comptroller The Capitol Tallahassee, Florida 32301 Gerald Chambers 6970 Manasota Key Road Englewood, Florida 33533
Findings Of Fact Stipulated Facts Deemed Relevant to Be Found Petitioner is the state land planning agency with the duty and responsibility to enforce and administer Chapter 380, Florida Statutes. The Killearn Lakes project is a planned residential community located north of Tallahassee near Bradfordville in Leon County, Florida. A portion of the Killearn Lakes Project, consisting of Units 1, 2, 3, 4 and 5 (phase I) is vested from Development of Regional Impact (DRI) review pursuant to Section 380.06(20), Florida Statutes. Petitioner recognized the vested rights for said portion of Killearn Lakes in BLIVR-274-037. The vested portion of Killearn Lakes has never undergone DRI review and is not a subject of this administrative proceeding. The remainder of the Killearn Lakes project, consisting of Units 5 (phases II and III), 6 and 7, is not vested from DRI review. Killearn was the sole owner of the non-vested portion of Killearn Lakes during the original DRI review, and is presently the owner and developer of most of the undeveloped portion of the Killearn Lakes DRI. The county is the local government with the jurisdiction to issue DRI development orders, and is the local government with the primary responsibility for administering DRI development orders for the land covered by the Killearn Lakes DRI development order. On November 14, 1974, Killearn filed a DRI application for development approval (ADA) for the non-vested portion of Killearn Lakes. In March of 1976, the Northwest Florida Planning and Advisory Council, District II, issued its Development of Regional Impact Evaluation for Killearn Lakes, Inc. On March 23, 1976, the county held a public hearing pursuant to Section 380.06(7), Florida Statutes (1975), on the Killearn Lakes ADA. The county commission issued a Development of Regional Impact Development Order approving the Killearn Lakes DRI and rejecting the conditions recommended by the Northwest Florida Planning and Advisory Council. No notice of the adoption of the Killearn Lakes DRI development order was, or has ever been, recorded in the Public Records of Leon County. At the time of the adoption of the Killearn Lakes DRI development order, Chapter 380, Florida Statutes, did not require the developer to record a notice of adoption, as is presently required by Section 380.06(15)(f), Florida Statutes (Supp. 1990), which first became effective in 1980. The county has issued every final local permit for the development that has occurred in the Killearn Lakes DRI. The county has not adopted a document entitled "Amendment to the Killearn Lakes DRI Development Order," and no such amendment to the Killearn Lakes DRI Development Order has been rendered to the Petitioner. Development within the Killearn Lakes DRI has not been completed. Central sewer has not been constructed throughout the developed portion of Killearn Lakes DRI. Other Facts Issuance of the Development Order Preliminary to action taken by the county commission which approved the subject development, the Tallahassee-Leon County Planning Commission met on March 18, 1976. It considered the recommendations of the Northwest Florida Regional Planning and Advisory Council related to the project. The recommendations of the Council were: Approval of the project on a phase by phases [sic] basis with necessary permits being granted after review and evaluation of the completed and proposed phases of development; Close monitoring of the drainage methods throughout each phase of development by the Leon County Engineering Department through on-site inspection; Developer is required to obtain a report from the Florida Games and Fresh Water Fish Commission for submission to the Leon County Commission concerning the evaluation of a lake drawdown project before a permit is granted; Developer must provide more information to the Leon County Commission regarding dredge and fill operation prior to the issuing of a permit for each phase of construction; Before the Leon County Commission issues a permit for each phase of development, a review of the upgrading of the Thoamsville [sic] Highway is required from the Florida Department of Transportation; Developer is required to comply with the following two conditions before a permit can be granted: Place hydrants so that all dwellings are within 1000 feet, and commercial property is within 500 feet. Increase water pressure and supply. A phase by phase review of projected growth of the Killearn Lakes Project and a brief impact analysis of Environmental and Natural Resources, Economy, Public Facilities, Public Transportation Facilities, and Housing in the immediate community and region is required before a permit can be issued to continue the Killearn Lakes project on a phase by phase basis. The successful review and evaluation of the above mentioned modifications prior to issuing each phase construction permit is recommended. The local planning group recommended approval of a development order without acceptance of the conditions suggested by the Northwest Florida Regional Planning Council. As mentioned before in Footnote 1, the county rejected all recommendations by that planning and advisory group. According to the minutes of the March 23, 1976 meeting: Mr. Simpson reported that the Planning Commission had recommended granting the development permit of Killearn Lakes without the application of the recommendations of the Northwest Florida Planning & Advisory Council, Inc. Commissioner Vause moved that the report from the Northwest Florida Planning & Advisory Council, Inc. dated March of 1976, be reflected in the minutes as being received and filed and that the Board follow the recommendation of the Planning Commission, Commissioner Marchant seconded the motion. Following very much discussion, Commission Vause amended his motion to adopt the following resolution and to issue a development order as recommended by the Planning Commission, Commissioner Marchant agreed to the amendment and the vote of the Board was unanimous in favor thereof. The Tallahassee-Leon County Planning Commission in its action of March 18, 1976 had not suggested any substantive changes to the ADA. The County Commission did not vote to modify the ADA by changes to the language in the ADA through additions or deletions to the text of the ADA or requirements set forth in the development order or attachments to the development order. Having rejected the recommendations set out by the Northwest Florida Regional Planning and Advisory Council, and offering no other conditions to control the development order other than those contemplated by statutes or rules pertaining to the issuance of the development order, the terms of the development order became those found within the ADA. Deadline for Development Among the topics discussed in the ADA is the date for completing the project. The ADA identifies the project completion date as 1985. This information is provided in accordance with the questionnaire which the consultant to Killearn answered in preparing the ADA. Having examined the Draft Operating Manual for Developments of Regional Impact which had been prepared by the Division of State Planning, the predecessor agency to the Petitioner, it is inferred that the application format/questionnaire recommended by the Division of State Planning was followed in preparing the ADA. The questionnaire contemplates in a number of instances establishment of a concluding date for the project. The evidence presented at hearing did not show that the county made a conscious decision to require submission of the application in the format set forth in the draft operating manual by the Division of State Planning, rather it acquiesced in that protocol on this occasion. There is no evidence that the Division of State Planning had communicated with the county concerning the use of this questionnaire for preparing an ADA, especially as it might pertain to the policy reasons for setting forth a deadline for project completion. Excepting the questionnaire, the Draft Operating Manual for Developments of Regional Impact prepared by the Division of State Planning was not shown to have been made available to the county or the applicant prior to the submission of the application. In particular, the applicant and county were unfamiliar with Section 2.05c. in its statement that all local development orders issued in response to an ADA should include provisions pertaining to the period of effectiveness of the development order and Section 2.07a.(2) pertaining to expiration of the period of effectiveness of the development order as a factor that may require retriggering of the DRI process. By implication, the county was not carrying forward the policy ideas expressed by the Division of State Planning where it urges local government, in the interest of sound planning principles to include a provision in the development order pertaining to the period of effectiveness of that development order and the statement that at the expiration of that period of effectiveness the development order may require a retriggering of the DRI review process. In the abstract, the questions that were answered in the ADA in response to the format contemplated by the Division of State Planning dealing with a concluding date for the project can be seen as associated with the concept of establishing an expiration date for the development order. The answers do not equate to setting out the expiration date as an incorporated requirement countenanced by this development order. Neither does the development order nor the incorporated ADA remind the developer or its successors in interest that there is a deadline for concluding the project beyond which the development order is no longer effective and the possible requirement for retriggering review of the DRI. Under the circumstances, absent some requirement of law not arising from the development order per se, the statements found within the ADA concerning the projects's concluding date are nothing more than an internal planning device for the benefit of the developer and its successors in interests. As an estimate by the applicant it does not express the perception of local government in issuing the development order and is unenforceable. Statutes and rules in effect at the time that the development order was issued, and it is those statutes and rules which control for reasons discussed in the conclusions of law, did not mandate the establishment of deadlines for completing the project, establishment of a period of effectiveness for the development order or a statement setting out the ramifications for not complying with the deadlines for buildout on the possible consequences of operating beyond the period of effectiveness of a development order. More generally stated Chapter 380, Florida Statutes and the rules of the Division of State Planning in existence when the project was considered did not readily explain the application process. It is not accepted that the county in view of the dialogue which took place between various commissioners and representatives of Killearn on March 23, 1976, took official action to extend the deadline set out in the ADA, but the resulting de facto extension of the buildout deadline beyond the effective date set forth in the ADA is irrelevant. The discussion among the commissioners and with representatives of the developer concerning the project completion was inconclusive, because from a parliamentary viewpoint, the county did not act to restate the ADA and by such restatement set forth a project deadline. The county never precluded further development in the DRI area after 1985 absent further DRI review. It did not have to. No deadline was required by law. No legally binding deadline has been imposed. Therefore development may proceed into the future. Sewer Service At The Inception Another item in dispute concerns the need to provide sewer service in the project area and at what point in time. The development order unequivocally requires a sewage treatment system so that units as they are built are connected to that system contemporaneous with their development. The development order does not allow alternative use of septic tanks until a central sewer system becomes available, if it ever does. The introductory portion of the ADA under the report summary speaks of sewer being provided by Talquin Electric Cooperative, Inc. Under the environmental assessments portion of the ADA associated with water quality, Paragraph 19.b.(3)(a), which speaks to possible discharges into ground water of liquid waste states: All units will be connected to a central plant as they are developed. This plant will remove 90 percent of the bio-chemical oxygen demand (B.O.D.) and of suspended solids (Chapter 403, Florida Statutes) and discharge to a land via a land disposal system; no surface discharge, (Figure 19-10). The economic assessments, Paragraph 25, discusses sanitary sewers at pages 59 and 61, as follows: a. Cite amount of sewage expected to be generated by the proposed development and source of treatment facility. Amount generated (added to .04 of Phase I): About 1.4 million gallons per day (mgd) in DRI area. Treatment will be accomplished by Talquin Electric Cooperative for Phases I into IV. The collection system will utilize lift stations (Figure 25-1). Will the design of the sewage system insure that all areas of the development have adequate facilities at all stages of the development? Specify. The Sewage Treatment Plant (STP) and collection system construction will be phased (Table 2) to accommodate this flow as follows: Now ready to start - .040 mgd S.T.P. (Phase (not in DRI area) 1, Unit 5) Until January 1975 - .450 mgd S.T.P. (Phase II, Units 5 & 6) Until mid-1976 - .900 mgd S.T.P. (Phase III, Unit 5+ apt./Condo. & Comm.) 1978 to mid-1982 - 1.800 mgd S.T.P. (Phase IV) or convert .900 mgd S.T.P. to a lift station and pump to City of Tallahassee Talquin Electric Cooperative has a construction permit from the Department of Pollution Control, and operating permit will be issued when the S.T.P. is built, subject to conditions discussed under "discharge to groundwater". The S.T.P. and land disposal site will be located at the northeast corner of Unit 2. Additional acreage, if needed, can be provided at the adjacent school site (Figure 19-10). How does the development's sewage system relate to the county's sewer and water treatment facilities objectives? During Phase IV this responsibility will shift to the City of Tallahassee. 16/ Killearn Lakes sewage then will be treated at the Tallahassee Northeast Treatment Plant (+ 1984). What assurances will the developer provide that such a system will indeed be completed? Construction? Performance bonds? Agreement with Talquin. 15/ Sewer connection to the City of Tallahassee depends on resolution of differences between the City and Leon County. The City/County Technical Coordinating Committee recently passed resolution urging priority action on this matter. Talquin Electric Cooperative builds and operates many total - utilities packages in the area, including sewer systems. It has been in business as a Rural Electric Cooperative for several decades. In addition, in the environmental assessments section, Paragraph 19.b.(2)(a) at pages 7 and 8 dealing with discharges into surface water of detergents and solvents reference is made to commercial and residential sewer service. Figure 19-4, at page 8, related to land disposal speaks of the temporary land disposal site for sewage effluent. Again the section on economics found at page 49 in the ADA comments that Talquin Electric Cooperative is responsible for all utility installation. Table 1, item 25 discusses sewage and notes that all areas to be served by Talquin Electric will be phased into a regional facility in 1984 to meet county objectives. No exception to this requirement is stated. Paragraph 31.c., at page 71, concerning alternative means of providing sewer states: What alternative power, water, sewer and solid waste disposal sources or mixes were considered and evaluated in selecting this particular site? The City of Tallahassee, Leon County, and Talquin Electric Cooperative are the alternative sources and they were selected through a combination of availability, common practice and cost. Contrary to the opinion of the county, this reference is unambiguous and does not contemplate the use of septic tanks at any time as a possible alternative to sewer service. The statement of availability describes the choice between utilities, not the choice between sewer service and septic tanks. Killearn's Agreement With Talquin Electric The sewer service agreement between Killearn and Talquin Electric Cooperative concerning provision of sewer service commented on in Footnote 15 to the ADA addresses provision of sewer service for the entire project controlled by the development order upon request by Killearn with cost or return of the total cost to be guaranteed by Killearn as recited in the agreement. It makes Killearn responsible for depositing funds with Talquin Electric Cooperative as construction work progresses as may be required by Talquin. Those funds must be sufficient to cover Talquin's and Killearn's "actual direct costs related to the installation of said utilities, including engineering and debt service." Killearn is refunded or credited with one-half of all utility revenue received by Talquin in excess of $5 per month per customer. Those excess customer revenues would be credited first to repay amounts borrowed by Talquin for the installation of utilities to meet debt service. The excess of those revenues would be refunded to Killearn to the extent that Killearn had deposited funds with Talquin Electric for project purposes. The refund to Killearn would include any interest paid by Killearn associated with funding. By the agreement Talquin would borrow funds for the installation of the utilities if it could obtain better rates than were available to Killearn. All the funds borrowed by Talquin are subject to Killearn's guarantee on the repayment of all debt service required and if the aforementioned refunds and credits are insufficient to meet that requirement by Talquin, Killearn agrees to deposit with Talquin the amount of that deficiency which would be counted as a cost to Killearn and subject to some future refund. Killearn had agreed to execute the necessary documents for individual loans if requested to do so by Talquin. The agreement has a duration of 20 years beyond the date of completion of the last utility construction. The agreement allows Talquin to place a sewer service tap fee on lot purchasers in the project area at rates which are normal and competitive. Talquin is to deduct the direct cost of installation related to tap fees with agreement to credit or refund the remainder to Killearn. By the agreement Talquin committed to pay Killearn the cost of any land required by Talquin for sewer treatment facilities. Those purchase costs would be included in the total cost of utilities which required deposits or guarantees from Killearn to Talquin. Nothing in the agreement between Talquin Electric and Killearn spoke to the means by which successor developers would assure that sewers were provided for units developed in the DRI area. The development order in addition to not being subject to recording in the Public Records of Leon County, Florida, based upon its own terms or requirements in law, did not obligate Killearn to advise purchasers of parcels in the DRI area who bought those parcels for development purposes, that the subsequent developer would need to provide sewers in accordance with the development order either through Talquin Electric or an appropriate utility. The failure of the development order to require disclosure is not unexpected given the county's willingness to allow the ADA to serve as the development order. The ADA informs the county of the project features. It is not designed to anticipate development controls, in this instance to set out the process by which the initial developer would alert subsequent developers to the terms of the ADA to include the requirement to provide sewer service. Nonetheless, the permission to develop was granted to Killearn as applicant and to the extent that right to develop was assigned to another developer by conveyance which removed Killearn as the responsible developer, it would be reasonable to expect Killearn to give notice of the existence of the development order and its salient features. The need to provide sewer service as development proceeds is among those features. Transactions and Notice to Subsequent Purchasers What did Killearn tell subsequent purchasers about the requirement to provide sewers? J. T. Williams, Jr., CEO and President of Killearn offered testimony on that subject. Williams identified that he had sold by warranty deed to Holt Robinson the Channel 40 television station property. The notice of violation refers to this property as Ton Realty Partnership. Killearn sold parcels to Dennette Rainey on contracts for deed for areas known as Mallard Bluff and Mallard Point. Parcels between Mallard Point and Mallard Bluff were sold to Perry Bodin on contracts for deed. The sales described occurred between 1979 and 1981. The balance of the project which is in dispute has been developed by Killearn and sewer has been installed in those developed areas that Killearn had not sold or agreed to sell. According to Williams the contracts for deed to Rainey and Bodin included references about central sewer. Unfortunately, copies of the contracts for deed were not presented in the hearing to establish the exact nature of those references and the notice they may have given the purchasers concerning their obligations to arrange for sewer service contemporaneous with development (the building of residences). Williams said that the agreement was to provide sewer at the developer's request, meaning to Rainey and Bodin, pursuant to Killearn's agreement with Talquin Electric. As stated, Talquin Electric has no commitment to provide sewer service to a subsequent developer under the terms of its agreement with Killearn. More importantly the agreement with Killearn requires that the developer provide a substantial deposit before installation of sewer service. It is unclear from the record whether Rainey, Bodin or Robinson understood this. Given the arrangement described at hearing which Williams said that he would make between Talquin Electric and Respondents Kinhega Landing and Kinhega Oaks, as liaison, in which the expectation would be that those two developers would be responsible for funding or deposits to move the work forward, the possibility exists that Rainey, Bodin and Robinson had also been made aware that this funding would be needed to bring about the installation of sewer lines in areas to be developed by those purchasers. By contrast they may have understood Williams' explanation to be that Killearn would arrange for provision of the sewer service in the areas to be developed upon their request without the need for initial funding provided by the subsequent developers. The state of the record does reveal that none of the areas described in the contracts for deed between Killearn and Rainey and Killearn and Bodin have sewer service from a central location. Homes in those areas are served by septic tanks. The property conveyed to Ton Realty Partnership may or may not have sewer service based upon proof in this record. Williams stated that he told his immediate purchasers that there was a DRI on the property and bragged that it would not be necessary for those persons who bought from him to go back through a process of project review. This does not signify that those purchasers were familiar with the contract with Talquin Electric which is spoken to under Footnote 15 to the ADA. In a more general sense, the record does not indicate that the immediate purchasers read the ADA. Again, they would not have been aware of the development order and its terms by resort to the Public Records in Leon County, Florida. In addition to Robinson, Killearn gave warranty deeds to other purchasers of parcels within the DRI. Killearn sold the parcel known as Mallard Bluff to Olin Mannheimer while under contract for deed to Rainey. The warranty deed under those circumstances went directly to Olin Mannheimer as developer. The terms of the warranty deed were not identified in the record nor any explanation made of Mannheimer's awareness of the requirement for sewers if he had an impression of that requirement. Williams established that Rainey developed Mallard Point. As Williams describes, for the property between Mallard Point and Mallard Bluff that had been sold to Perry Bodin in which the parcels known as Kinhega Landing and Kinhega Oaks are found, together with Kinhega Estates and the Kinhega Lodge, title was released per warranty deed as acreage was paid off. Except for the last parcel within the Bodin contract for deed with Killearn, that parcel being associated with Kinhega Landing group of Respondents (Southern Heritage Development, Inc., Seay Enterprises, Inc. and Jimmy Boynton Realty, Inc.), Killearn gave warranty deeds directly to persons who purchased property that had been identified under the contract for deed between Bodin and Killearn. Killearn conveyed the Kinhega Landing parcel to Bodin by warranty deed. The terms of that warranty deed were not identified in the record. Killearn conveyed by warranty deed that property known as Kinhega Oaks. That conveyance was subject to restrictions, reservations, covenants and easements of record, if any. The conveyance to the Kinhega Oaks group of Respondents (Stephen John Stoutamire, Lewis Hill, Sr. and Lewis Hall, Jr.) took place on May 19, 1989. Kinhega Landing, Kinhega Oaks and Other Particulars The Kinhega Landing purchase by the present Respondents was based upon a deposit and receipt contract for sale and purchase between Bodin and his wife and James Jarrett followed by a warranty deed from Bodin and his wife to the Kinhega Landing group. No explanation is made concerning Jarrett's understanding of the need to provide sewers. The warranty deed to the Kinhega Landing group of Respondents was executed December 13, 1989, and refers to restrictions, easements, and reservations and covenants that are of record, if any. As with other conveyances and throughout the history of this project no reference to the development order could be found by a search of the Public Records. Neither does the deposit and receipt contract for sale and purchase identify the existence of the development order for the edification of the Kinhega Landing group. Killearn had no direct dealing with purchasers of property contemplated within the agreement for deed between Killearn and Bodin other than the act of preparing and delivering a warranty deed to the Kinhega Oaks group and others similarly situated who took title directly from Killearn based upon the agreement for deed between Killearn and Bodin. To the extent that the agreement for deed with Bodin may have informed the reader that Killearn had disclosed the nature of the requirement for provision of sewer as set forth in the development order, no indication was given in the record that someone other than Killearn may have then made the Kinhega Oaks and Kinhega Landing groups mindful of that caveat or that Bodin or someone that he was affiliated with otherwise disclosed the need to provide sewers for the parcels to be developed by the Kinhega Oaks and Kinhega Landing groups. Bodin is not named as a Respondent nor was he called as a witness in this hearing to explain his position in these matters. Likewise Rainey, Mannheimer and Jarrett are not parties nor were they called as witnesses. In that a warranty deed was given directly from Killearn to Kinhega Oaks, opportunity was presented by that conveyance for Killearn to have alerted the Kinhega Oaks group concerning the DRI and its terms, even if seen from Williams' viewpoint as principally being a favor to Bodin to avoid tax implications of a transfer from Bodin and thus to the Kinhega Oaks group. Although this opportunity was presented to Killearn to describe the existence of the requirements for sewer set out in the development order when making a direct conveyance to the Kinhega Oaks group, the warranty deed did not reveal that information and no discussion was entered into with Kinhega Oaks concerning any aspects of the purchase beyond the conveyance itself. Williams asserts in his testimony in further explanation of the events that Bodin would be responsible for arranging the furnishing of sewer to the Kinhega Landing group, but that Killearn would voluntarily arrange for that sewer service as a matter of a favor, not a matter of contract. This would be upon provision of the payment of 30 per cent of cost of the installation by Kinhega Landing to Talquin Electric. At hearing Williams offered to make a similar arrangement for the Kinhega Oaks group as Williams described as having been done for Rainey under his contract with Killearn, a contract not presented at hearing. Again, this contemplates that Kinhega Oaks would pay 30 per cent of the total costs and that Killearn would get all rebates that pertained for coverage of interest and carrying costs during the rebate period. Notwithstanding Killearn's offer to make these arrangements with Talquin Electric to provide sewer for the benefit of the subsequent developers, those arrangements have not been made. Nothing in the record establishes or suggests that the Kinhega Oaks group and the Kinhega Landing groups were aware of the existence of the development order and its requirement for installation of sewer contemporaneous with development when they purchased their parcels. Had they understood that requirement was incumbent upon them, they would not have undertaken the purchases and incurred debt obligations which they now are experiencing difficulties meeting, in part due to the possible outcome here which could prohibit development absent the contemporaneous installation of sewers. Petitioner argues that no authority exists to allow septic tanks at individual lot sites as an interim condition prior to sewer lines being made available in the areas undergoing development by Kinhega Oaks and Kinhega Landing. This is contrary to the attitude expressed by the county in granting preliminary plats to the two developers and individual permits for septic tank installation until sewer is made available, if that eventuality occurs. Raymond Richard Yates, Jr. testified. He is President of Southern Heritage Development Inc. and together with Jimmy Boynton Realty, Inc. and Seay Enterprises, Inc. owns the property known as Kinhega Landing. Those individuals became involved with the property through contacts between Yates and Jarrett. As alluded to, Jarrett did not tell Yates that the property was subject to the development order and its requirements for provision of sewer. At the inception of their dealings the Kinhega Landing group intended to substitute for Jarrett and his contract and to purchase the property if plat approval could be gained. The record is not clear about Jarrett's position with Bodin and Killearn beyond the previously described deposit and receipt contract for sale and purchase Bodin to Jarrett. The Kinhega Landing group arranged to have a search made of the Public Records of Leon County to discover any easement, development orders and/or restrictions affecting the property in question effective through December 13, 1989. That report of April 22, 1991, did not reveal the existence of the development order. On November 16, 1989, the Tallahassee-Leon County Planning Commission voted to approve the preliminary plat for Kinhega Landing subject to conditions. This was in accordance with the county ordinance on recording subdivision plats that became effective in 1984. (Other developers in the area of Lake Iamonia within the DRI as described had undertaken development before passage of the ordinance.) Among those conditions was the requirement for mound type septic tank systems in lieu of ordinary septic tank systems where subsurface conditions would require the mounded approach. Another condition required that the Kinhega Estates Home Owners Association's covenants and restrictions would apply. A condition was established that homeowners would be required to hook up to a central sewer system if and when it became available. The Kinhega Landing group paid $240,000 for the land or an amount approximating that cost with a fee of $30,000 paid to Jarrett for the assignment of the contract. The Kinhega Landing group obtained a loan for $425,000 to develop the land. In furtherance of the project roads have been installed, clearing has been done and some holding facilities for stormwater runoff put in place. Other permits for development have been acquired to include environmental permits from the county and the State of Florida, Department of Environmental Regulation. After plat approval and purchase, the Kinhega Landing group first discovered that the property was subject to the development order. In addition to the prohibition against the use of septic tanks contemplated by the notice of violation, the county has told the Kinhega Landing group that they may not proceed with development. At present the property in question, which is 29.71 acres with 44 lots and a unit density of 1.65 units per acre lies dormant. No septic tanks have been installed as this developer had anticipated doing. Yates testified that he is not in a financial position to address the sewer requirements in an instance where deposit money would have to be made available for that activity. His other partners have decided they no longer wish to participate and Yates is in jeopardy with his financing institution. On April 20, 1989, the Tallahassee-Leon County Planning Commission voted to approve the preliminary plat for Kinhega Oaks. That parcel has an acreage of 11.87, with 15 lots of a unit density of 1.4 per acre. The preliminary plat has the same conditions that have been described for Kinhega Landing. Kinhega Oaks is owned by Stephen John Stoutamire, Lewis Hill, Sr. and Lewis Hill, Jr. The property was purchased through a real estate agency known as Rae Roeder Realty in the person of Bob Cole. The Kinhega Oaks group did not deal with Perry Bodin directly or anyone other than the realtor. The Kinhega Oaks group bought the property for purposes of development of single-family residential lots of approximately one-half acre size. Improvements intended to be installed included a county maintained road. They did not intend to install a central sewer system. The project contemplated the use of septic tanks. In furtherance of the project the purchasers paid approximately $100,000 and had site evaluations done on two lots that were in the most sensitive area of the project near Lake Iamonia. An engineering firm was hired to gain that preliminary plat approval. Title work was done. Closing on the property was contingent upon activities by the engineering firm, soil samples and title insurance. For the two lots which were the most sensitive in terms of use of septic tanks, soil studies were done and the necessary approvals were gained for the use of septic tanks. In purchasing the property, the Kinhega Oaks group relied upon the conditions for development which were set out in the preliminary plat, including allowances for septic tanks to be used on an interim basis. If the preliminary plat had not been approved, the Kinhega Oaks group would not have purchased the property, nor would they have purchased the property if they had been aware of the existence of the development order. They would not have developed if the studies related to the use of septic tanks had been adverse. Since the purchase of the property, a road has been built, and water service and underground electric service has been provided. A concrete ditch has also been put in place and sod. Approximately $40,000.00 has been expended on improvements. In pursing the project, necessary permits have been obtained. The closest available central sewer is approximately one mile away. To install the sewer system, it would be necessary to tear up the road and lay the sewer line in the middle and T-off on the sides and re-pave the road. Five lots have been sold in the subdivision. Two houses have been constructed and one is underway. All of those houses have septic tanks. The Kinhega Oaks purchasers became aware of the existence of the development order after making improvements and selling the five lots. The Kinhega Oaks group first became aware of the development order when served with a notice of violation. Under the orders for corrective action and the development order, the Kinhega Oaks group and the Kinhega Landing group are confronted with a requirement to provide sewer service within a year of a final order, if Petitioner's position is sustained. The Kinhega Oaks group understands that limits have been imposed on the installation of septic tanks. Had it realized that it would become necessary to place the sewer lines, it would not have purchased the property. If required to make the corrections that are contemplated by the Petitioner, Stephen Stoutamire on behalf of the Kinhega Oaks group, testified that he would "go broke". The County: Application of The Development Order Martin Patrick Black, the present Chief of Land Use Administration for the county, testified. He has held that position since December, 1989. He concedes that the ADA does not mention septic tanks. The person who was principally responsible for considering the applications for plat approval from Kinhega Landing and Kinhega Oaks is Wade Pitt, a planner for the county. He knew of the existence of the development order from when he was initially employed in 1983. He testified that Mallard Bluff, Mallard Point and Kinhega Estates existed before the subdivision regulations were passed in 1984 and did not need to obtain plat approval as was necessary with Kinhega Landing and Kinhega Oaks. This did not excuse development without provision of sewer service. When he reviewed the subject requests for preliminary plat approval after the ordinance was enacted, he referred to the development order and ADA, in addition to the county subdivision regulations. On the issue of sewage disposal, he concluded that the ADA stated that central sewer would be provided by phases in the DRI; however, provision of central sewer was predicated on availability. Given that central sewer was not available at the time that the plat approval was considered, he decided that septic tanks were an acceptable alternative to the installation of sewer until sanitary sewer became available. In effect, he believed septic tanks were an available and appropriate interim measure until sewer became available. His perceptions led to the above described conditions on wastewater treatment which were placed in the preliminary plat approval for both Kinhega Landing and Kinhega Oaks. His interpretation is erroneous. His position, as adopted by the county in the preliminary plat approvals, is incorrect in a setting in which the requirements announced in the development order/ADA are not fairly debatable. There is no allowance for septic tanks as an interim response, especially not when the contingency in the plat approvals is for provision of sewer only when it becomes available, if at all. This is as contrasted with the absolute requirement of sewer service at the project inception, when development commences, found in the development order. The record is devoid of any statement that someone other than the subsequent developers would make the necessary financial contribution to bring about sewer service in those areas which were not developed by Killearn. It appears unlikely that sewer service will become available in substitution for septic tanks under the present circumstances. To the extent that the applicant in responding to the questionnaire which formed the basis of the application considered alternative methods for wastewater treatment, those alternatives did not include septic tanks. The statement of how Killearn would respond to wastewater treatment did not set forth septic tanks as the means, even as an interim measure. For the county to perceive that the ADA/development order would allow septic tanks as an interim condition is contrary to reason and in contravention of the development order which it issued. More About Covenants and Restrictions On November 29, 1979, certain Declarations of Covenants and Restrictions for that portion of the DRI known as Mallard Point were recorded in the Public Records of Leon County, Florida. They are in substance the same as those associated with Kinhega Estates, Unit I, as recorded on December 21, 1982, and those for Kinhega Lodge recorded on February 23, 1987. All were recorded by Killearn as the developer and signed by J. T. Williams, as President of Killearn. The restrictive covenants by Killearn executed in 1979, 1982 and 1987 call for single-family residential development in an area of the DRI which was approved for condominium development. Kinhega Landing and Kinhega Oaks per the terms of the preliminary plats received by those developers must abide by the Kinhega Estates Declaration of Covenants and Restrictions. Pursuant to the definitional section in that document, the term "improvements" includes sewers. Under Article IX, having to do with the preservation of the natural environment, lakes, and Green Areas at Section 5, the developer, Killearn, reserves the right for itself and successors and assigns to go over and around the ground to erect and maintain and use sewers and for other suitable equipment for conveyance and use of sewers in the Green Areas. Right is reserved to locate pumping stations and treatment plants in the Green Areas; however, the rights which may be exercised by the developer and any licensee of the developer, also referred to as the company, shall not be considered as an obligation of the company to provide or maintain the utility, in this dispute, the sewer service. In Section 9 of Article IX, further mention is made of the idea that the granting of the easement in no way places a burden of affirmative action on the developer, and the developer is not bound to make any of the improvements noted or to extend service of any kind. Article XVIII speaks specifically of sewage disposal where it says: "No individual sewage disposal system shall be permitted on any site unless such system is designed, located and constructed in accordance with the requirements, standards and recommendations of the State of Florida's Department of Pollution Control. Approval of such system as installed shall be obtained from such department or departments." These provisions fail to mandate the requirements for provision of sewer service by the original developer or subsequent developers. They also allow septic tanks in contravention of the development order. Other Departures Given the proposed stipulations in law among the parties in which consideration of the factual significance of those other departures from the terms of the development order is not anticipated, intricate treatment of those matters is not undertaken to examine the significance of these deviations from the development order. It suffices to say that the following improvements: the golf course known as Golden Eagle, the single-family residences in the vicinity of Lake Iamonia in lieu of the condominiums identified in the ADA, a school site under the ADA which has been converted to single-family residences in Golden Eagle Units 1 and 3, and the Television 40 site developed by Ton Realty Partnership in an area approved for a single-family residential development or a school site depart from the terms of the development order. Forgiveness Petitioner has not named individual lot owners who purchased property prior to the notice of violation as Respondents.
Recommendation Upon consideration of the facts found and the conclusions of law reached, it is recommended that a Final Order be entered which: Requires Killearn to: comply with the requirements of the stipulation requiring an amendment to the development order incorporating the reduction in density from condominiums to single-family residences in the area bordering Lake Iamonia; the elimination of a school site in an area of residential development; the construction of a golf course and the construction of a television station in an area designated for a school site or alternatively for single-family residential development. provide written notice in all it sells for development by others after the date of the final order that a development order exists and that all new development must have contemporaneous sewer service, and if Killearn intends to broker the contract between Killearn and Talquin Electric as a means of meeting the central sewer requirement the purchaser must be made aware that Talquin Electric must be paid a deposit from the subsequent developer before Talquin Electric will undertake the project. record the development order/ADA and its amendments in the Public Records of Leon County, Florida. Requires the County to: amend the development order pursuant to the stipulation between the county and Killearn described at I.A. refrain from issuing any permits which would allow development in the DRI area not served by a central sewer, excepting those situations set forth in the conclusions of law. In those instances development permits could be issued to successors in interest. In the exceptional cases the permit should provide that the lot owner will be required to connect to a central sewer system when made available. faithfully fulfill the terms of its development order. dismisses the notice of violation against Kinhega Landing, Kinhega Oaks and Ton Realty Partnership. RECOMMENDED this 28th day of August, 1991, 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 28th day of August, 1991.
The Issue The issue is whether the establishment of the Bartram Springs Community Development District meets the applicable criteria set forth in Chapter 190, Florida Statutes.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Overview Petitioner, SouthStar Development Partners, Inc., is seeking the adoption of a rule by the Florida Land and Water Adjudicatory Commission (Commission) to establish a community development district proposed to consist of approximately 1,025 acres located within the boundaries of the City of Jacksonville (City). The City is a consolidated government which has jurisdiction over and extends territorially to the limits of Duval County. The proposed name for the new District is the Bartram Springs Community Development District (the District). There are no parcels within the external boundaries of the proposed District which are to be excluded from the District. The estimated cost of the infrastructure facilities and services which are presently expected to be provided to the lands within the District was included in the Petition. The sole purpose of this proceeding was to consider the establishment of the District as proposed by Petitioner. Summary of Evidence and Testimony Whether all statements contained within the Petition have been found to be true and correct. Petitioner's Composite Exhibit 1 consists of the Petition and its attachments as filed with the Commission. Mr. J. Thomas Gillette, III, regional manager for north Florida for Petitioner, testified that he had reviewed the contents of the Petition and approved its findings. Mr. Gillette also generally described certain of the attachments to the Petition. Finally, Mr. Gillette testified that the Petition and its attachments were true and correct to the best of his knowledge. Mr. Douglas C. Miller, a professional engineer with England, Thims & Miller, Inc., testified that he had assisted in the preparation of portions of the Petition and its attachments. Mr. Miller also generally described certain of the attachments to the Petition which he or his office had prepared. Finally, Mr. Miller testified that the attachments to the Petition prepared by England, Thims & Miller, Inc., and admitted into evidence, were true and correct to the best of his knowledge. Dr. Henry H. Fishkind, president of Fishkind & Associates, Inc., testified that he had prepared Exhibit 11 to the Petition, the Statement of Estimated Regulatory Costs (SERC). Dr. Fishkind also testified that the SERC submitted as Attachment 11 to Petitioner's Composite Exhibit 1 was true and correct to the best of his knowledge. The Petition included written consent to establish the District from the owners of one hundred percent of the real property located within the lands to be included in the proposed District. Mr. Gillette also testified that the ownership of the lands to be included within the proposed District had not changed. The Petition and its exhibits are true and correct. Whether the establishment of the District is inconsistent with any applicable element or portion of the State Comprehensive Plan or of the effective local government comprehensive plan. Mr. Gary R. Walters, a land planner and president of Gary Walters & Associates, reviewed the proposed District in light of the requirements of the State Comprehensive Plan found in Chapter 187, Florida Statutes. Mr. Walters also reviewed the proposed District in light of the requirements of the City of Jacksonville Comprehensive Plan. The State Comprehensive Plan "provides long-range policy guidance for the orderly social, economic and physical growth of the State" by way of twenty-six subjects, and numerous goals and policies. From a planning perspective, two subjects of the State Comprehensive Plan apply directly to the establishment of the proposed District, as do the policies supporting those subjects. Subject 16, Land Use, recognizes the importance of locating development in areas with the fiscal ability and service capacity to accommodate growth. The proposed District will have the fiscal ability to provide services and facilities and help provide infrastructure in a fiscally responsible manner in an area which can accommodate development within the City. Subject 26, Plan Implementation, provides that systematic planning shall be integrated into all levels of government, with emphasis on intergovernmental coordination. The proposed District is consistent with this element of the State Comprehensive Plan because the proposed District will systematically plan for the construction, operation, and maintenance of the public improvements and the community facilities authorized under Chapter 190, Florida Statutes, subject to and not inconsistent with the local government comprehensive plan and land development regulations. Additionally, the District meetings are publicly advertised and are open to the public so that all District property owners and residents can be involved in planning for improvements. Finally, Section 189.415, Florida Statutes, requires the District to file and update public facilities reports with the local governments, which they may rely upon in any revisions to the local comprehensive plan. Dr. Fishkind reviewed the proposed District in light of the requirements of the State Comprehensive Plan and found that from a financial perspective, two subjects of the State Comprehensive Plan apply directly to the establishment of the proposed District, as do the policies supporting those subjects. Subject 18, Public Facilities, provides that the state shall protect substantial investments in public facilities and plan for and finance new facilities to serve residents in a timely, orderly, and efficient manner. The proposed District will be consistent with this element because the District will plan and finance the infrastructure systems and facilities needed for the development of lands within the District; it will be a stable, perpetual unit of local government and will be able to maintain the infrastructure servicing the lands within the District; and it will allow growth within the District to pay for itself at no cost to the City. Subject 21, Governmental Efficiency, provides that governments shall economically and efficiently provide the amount and quality of services required by the public. The proposed District will be consistent with this element because the proposed District will economically and efficiently finance and deliver those public services and facilities as needed by the District's residents and property owners. The proposed District will be professionally managed, financed, and governed by those whose property directly receives the benefits of the services and the facilities provided. Creating a District does not burden the general taxpayer with the costs for the services or facilities inside the proposed District. Based on the testimony and exhibits in the record, the proposed District will not be inconsistent with any applicable element or portion of the State Comprehensive Plan. The City of Jacksonville Comprehensive Plan contains various elements which are supported by numerous goals and objectives. Mr. Walters testified that portions of three of these elements were relevant when determining whether or not the proposed District was inconsistent with the local comprehensive plan. Within the Future Land Use Element are Goals and Objectives which are targeted to effectively manage growth in areas designated to accommodate future development and provide services in a cost-efficient manner. The proposed District is consistent with this plan element. The development within the proposed District is part of a Chapter 380, Florida Statutes, Development Order, which states that the "development is consistent with the local comprehensive plan and local land development and zoning regulations." The Development Order itself specifically notes that a community development district may be established. The proposed District is a recognized vehicle to provide the necessary services and facilities to the lands within the boundaries of the proposed District consistent with the City of Jacksonville Comprehensive Plan’s objective of coordinating land uses with urban services delivery. The goal of the Intergovernmental Coordination Element is to establish processes among various governmental, public, and private entities to coordinate development activities, preservation of the quality of life, and the efficient use of available resources. The proposed District will assist in the coordination process by providing and maintaining community infrastructure in a way that is not inconsistent with the plans and activities of related public and private agencies. The Capital Improvements Element is intended to provide necessary infrastructure in a timely and orderly manner. The proposed District will expand the areas within the City that receive infrastructure in a manner consistent with the Development Order for the area and the City of Jacksonville Comprehensive Plan. Based on the evidence in the record, the proposed District will not be inconsistent with any applicable element or portion of the local Comprehensive Plan, and will in fact further the goals provided. The Florida Department of Community Affairs (DCA) reviewed the Petition for compliance with its various programs and responsibilities. After conducting a review of the petition for consistency with the approved Development Order and Comprehensive Plan, the DCA concluded that the Petition for the Establishment of the Bartram Springs Community Development District was not inconsistent with either the Comprehensive Plan or Development Order. Whether the area of land within the proposed district is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developable as one functional interrelated community. Testimony on this criterion was provided by Messrs. Miller, Walters, and Fishkind. The proposed District will include approximately 1,025 acres, located within the borders of the City. All of the land in the proposed District is part of a planned community included in the Bartram Park Development of Regional Impact (the DRI). Functional interrelation means that each community purpose has a mutual reinforcing relationship with each of the community's other purposes. Each function requires a management capability, funding source, and an understanding of the size of the community's needs, so as to handle the growth and development of the community. Each function must be designed to contribute to the development or the maintenance of the community. The size of the District as proposed is approximately 1,025 acres. From a planning perspective, this is a sufficient size to accommodate the basic infrastructure facilities and services typical of a functionally interrelated community. The proposed facilities can be provided in an efficient, functional, and integrated manner. Compactness relates to the location in distance between the lands and land uses within a community. The community is sufficiently compact to be developed as a functionally inter-related community. The compact configuration of the lands will allow the District to provide for the installation and maintenance of its infrastructure in a long-term, cost-efficient manner. Petitioner is developing all of the lands within the District as a single master-planned community. All of these lands are governed by the DRI issued by the City. From planning, economics, engineering, and management perspectives, the area of land to be included in the proposed District is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developed as a single functionally interrelated community. Whether the proposed district is the best alternative available for delivering community development services and facilities to the area that will be served by the proposed district. It is presently intended that the District will construct or provide certain infrastructure improvements as outlined in the Petition. Installation and maintenance of infrastructure systems and services by the proposed District is expected to be paid through the imposition of special assessments. Use of such assessments will ensure that the real property benefiting from District services is the same property which pays for them. Two alternatives to the use of the District were identified. First, the City might provide facilities and services from its general fund. Second, facilities and services might be provided by some private means, with maintenance delegated to a property owners' association or a home owners' association. The District is preferable to these alternatives at focusing attention on when, where, and how the next system of infrastructure will be required. This results in a full utilization of existing facilities before new facilities are constructed and reduces the delivered cost to the citizens being served. The District will construct certain infrastructure and community facilities which will be needed by the property owners and residents of the project. Expenses for the operation and maintenance of the facilities the District retains are expected to be paid through maintenance assessments to ensure that the property receiving the benefit of the district services is the same property paying for those services. Only a community development district allows for the independent financing, administration, operations, and maintenance of the land within such a district. Only a community development district allows district residents to ultimately completely control the district. The other alternatives do not have these characteristics. From an engineering perspective, the proposed District is the best alternative to provide the proposed community development services and facilities to the land included in the proposed District because it is a long-term, stable, perpetual entity capable of maintaining the facilities over their expected life. From planning, economic, engineering, and special district management perspectives, the proposed District is the best alternative available for delivering community development services and facilities to the area that will be served by the District. Whether the community development services and facilities of the proposed district will be incompatible with the capacity and uses of existing local and regional community development services and facilities. The services and facilities proposed to be provided by the District are not incompatible with uses and existing local and regional facilities and services. The District's facilities and services will not duplicate any existing regional services or facilities. None of the proposed services or facilities are presently being provided by another entity for the lands to be included within the District. Therefore, the community development services and facilities of the proposed district will not be incompatible with the capacity and uses of existing local and regional community development services and facilities. Whether the area that will be served by the district is amenable to separate special-district government. As cited previously, from planning, economic, engineering, and special district management perspectives, the area of land to be included in the proposed District is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developed and become a functionally interrelated community. The community to be included in the District has a need for certain basic infrastructure systems, and the proposed District provides for an efficient mechanism to oversee the installation of these improvements. From planning, engineering, economic, and management perspectives, the area that will be served by the District is amenable to separate special-district government. Other requirements imposed by statute or rule. Chapter 190, Florida Statutes, and Chapter 42-1, Florida Administrative Code, impose specific requirements regarding the petition and other information to be submitted to the Commission. The Commission has certified that the Petition to Establish the Bartram Springs Community Development District meets all of the requirements of Section 190.005(1)(a), Florida Statutes. The SERC contains an estimate of the costs and benefits to all persons directly affected by the proposed rule to establish the District -- the State of Florida and its citizens, the City and its citizens, Petitioner, and consumers. Beyond administrative costs related to rule adoption, the State and its citizens will only incur minimal costs from establishing the District. These costs are related to the incremental costs to various agencies of reviewing one additional local government report. The proposed District will require no subsidies from the State. Benefits will include improved planning and coordination of development, which is difficult to quantify but nonetheless substantial. Administrative costs incurred by the City related to rule adoption will be modest. These modest costs are offset by the $15,000 filing fee required to accompany the Petition to the City. Residents within the District will pay non-ad valorem or special assessments for certain facilities. Locating within the District is voluntary. Generally, District financing will be less expensive than maintenance through a property owners' association or capital improvements financed through developer loans. Benefits to residents within the community development district will include a higher level of public services and amenities than might otherwise be available, completion of District-sponsored improvements to the area on a timely basis, and a larger share of direct control over community development services and facilities within the area. Section 190.005(1)(a), Florida Statutes, requires a petition to include a SERC which meets the requirements of Section 120.541, Florida Statutes. The Petition filed herein contains a SERC. It meets all requirements of Section 120.541, Florida Statutes. Petitioner has complied with the provisions of Section 190.005(1)(b)1., Florida Statutes, in that the City was provided four copies of the Petition and was paid the requisite filing fee. Section 190.005(1)(d), Florida Statutes, requires the Petitioner to publish notice of the local public hearing in a newspaper of general circulation in Duval County for four consecutive weeks prior to the hearing. The notice was published in a newspaper of general paid circulation in Duval County (The Florida Times Union) for four consecutive weeks on May 3, May 10, May 17, and May 24, 2002.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Land and Water Adjudicatory Commission, pursuant to Chapters 120 and 190, Florida Statutes, and Chapter 42-1, Florida Administrative Code, establish the Bartram Springs Community Development District, as requested by Petitioner, by formal adoption of the proposed rule attached to this Report as Appendix C. DONE AND ENTERED this 19th day of June, 2002, in Tallahassee, Leon County, Florida. ___________________________________ DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of June, 2002. COPIES FURNISHED: Cheryl G. Stuart, Esquire Hopping Green & Sams, P.A. Post Office Box 6526 Tallahassee, Florida 32314-6526 Charles Canady, General Counsel Florida Land and Water Adjudicatory Commission Office of the Governor The Capitol, Room 209 Tallahassee, Florida 32399-0001 Donna Arduin, Secretary Florida Land and Water Adjudicatory Commission Office of the Governor The Capitol, Room 2105 Tallahassee, Florida 32399-0001 Barbara Leighty, Clerk Growth Management and Strategic Planning The Capitol, Room 2105 Tallahassee, Florida 32399-0001 Gregory M. Munson, Esquire Office of the Governor 400 South Monroe Street, Room 209 Tallahassee, Florida 32399-6536 APPENDIX A Petitioner's Witnesses at Hearing J. Thomas Gillette, III SouthStar Development Partners, Inc. 4720 Salisbury Road, Suite 126 Jacksonville, Florida 32256-6101 Douglas C. Miller, P.E. England, Thims & Miller, Inc. 14775 St. Augustine Road Jacksonville, Florida 32258-2463 Gary R. Walters Gary Walters & Associates 12 Crooked Tree Trail Ormond Beach, Florida 32174-4338 Dr. Henry H. Fishkind Fishkind & Associates, Inc. 11869 High Tech Avenue Orlando, Florida 32817-1490 APPENDIX B List of Petitioner's Exhibits Exhibit Number Exhibit Description Petition with attachments Notice of Receipt of Petition Division of Administrative Hearings Referral Letter Department of Community Affairs Transmittal Letter Department of Community Affairs Review Letter Ordinance 2000-451-E State Comprehensive Plan The Florida Times Union Proof of Publication APPENDIX C Text of Proposed Rule CHAPTER 42___-1 BARTRAM SPRINGS COMMUNITY DEVELOPMENT DISTRICT 42___-1.001 Establishment. 42___-1.002 Boundary. 42___-1.003 Supervisors. 42____-1.001 Creation. The Bartram Springs Community Development District is hereby established. Specific Authority 120.53(1), 190.005 F.S. Law Implemented 190.005 F.S. History-New 42____-1.002 Boundary. The boundaries of the District are as follows: A portion of Sections 28, 29, 32 and 33, together with a portion of Section 48, of the Christopher Minchin Grant, all lying in Township 4 South, Range 28 East, Duval County, Florida, being more particularly described as follows: For a Point of Reference, commence at the corner common to said Sections 32 and 33, Township 4 South, Range 28 East, said Duval County and Sections 4 and 5, Township 5 South, Range 28 East, St. Johns County, Florida, said corner also lying on the county line dividing said Duval and St. Johns Counties; thence North 89° 04' 41" East, along said county line, 3281.18 feet; thence North 00° 55' 19" West, departing said county line, 5.00 feet to the Point of Beginning. From said Point of Beginning, thence South 89° 04' 41" West, 3281.22 feet to a point lying on the line common to said Sections 32 and 33; thence South 89° 33' 42" West, departing said common line, 699.85 feet to the Easterly limited access right of way line of State Road No. 9B, a variable width right of way as established on State Road Department Right of Way Map Section 72002-2513, dated 09-08-92; thence Northwesterly and Northeasterly, along said Easterly limited access right of way line, the following courses: (1) North 40° 25' 37" West, 2161.10 feet to the Point of Curvature of a curve, concave Northeasterly having a radius of 2744.79 feet; (2) along the arc of said curve, through a central angle of 14° 47' 23", an arc length of 708.51 feet to the Point of Tangency of said curve, said arc being subtended by a chord bearing and distance of North 33° 01' 55" West, 706.55 feet; (3) North 25° 38' 14" West, 2143.97 feet to the Point of Curvature of a curve, concave Easterly having a radius of 1789.86 feet; (4) along the arc of said curve through a central angle of 37° 18' 23", an arc length of 1165.41 feet to a point on said curve, said arc being subtended by a chord bearing and distance of North 06° 59' 02" West, 1144.93 feet; (5) North 10° 17' 40" East, along a non-tangent bearing, 500.14 feet; (6) North 11° 40' 10" East, 1913.60 feet to a point lying on the Southerly line of the North 1/2 of said Section 29; thence North 88° 42' 41" East, departing said Easterly limited access right of way line and along last said line, 2914.25 feet to the Southwest corner of the Northwest 1/4 of said Section 28; thence North 89° 02' 27" East, along the Southerly line of the Northwest 1/4 of said Section 28, a distance of 233.49 feet to a point lying on the Westerly right of way line of the Florida East Coast Railroad, a 100 foot right of way as now established; thence South 41° 00' 02" East, along said Westerly right of way line, 1203.71 feet to a point lying on the Westerly line of the Easterly 1/4 of the Northwest 1/4 of the Southwest 1/4 of said Section 28; thence South 00° 59' 05" East, departing said Westerly right of way line and along said Westerly line of the Easterly 1/4, a distance of 424.47 feet to the Southwest corner of said East 1/4 of the Northwest 1/4 of the Southwest 1/4; thence North 88° 54' 34" East, along the Southerly line of said East 1/4, a distance of 355.82 feet to a point lying on the aforementioned Westerly right of way line; thence South 41° 00' 02" East, along said Westerly right of way line, 6946.50 feet; thence South 81° 44' 38" West, departing said Westerly right of way line, 1239.95 feet; thence North 89° 51' 10" West, 1102.07 feet; thence South 10° 16' 03" West, 955.68 feet to the Point of Beginning. Containing 1025.40 acres, more or less. Specific Authority 120.53(1), 190.005 F.S. Law Implemented 190.004, 190.005 F.S. History-New 42____-1.003 Supervisors. The following five persons are designated as the initial members of the Board of Supervisors: J. Thomas Gillette, III, L. Alfredo Rodriguez-Walling, Walter Kehoe, Thaddeus D. Rutherford, and Leo W. Johns. Specific Authority 120.53(1), 190.005 F.S. Law Implemented 190.006(1) F.S. History-New.
Findings Of Fact Pal-Mar has filed application No. 29454 pursuant to Chapter 373, Florida Statutes, requesting approval for a surface water management system known as Phase III of Pal-Mar Water Management District, to serve approximately 3,600 acres of residential land in Martin County, Florida. The project discharges to C-44, the St. Lucie canal. SFWMD's staff report recommends approval be granted for the proposed water management system based on considerations of water quality, rates of discharge, environmental impact and flood protection. Approval is subject to certain conditions which are not material to the instant cause. As background material to the staff report, the staff makes reference to the U.S. Army Corps of Engineers report entitled "Survey-Review Report of Central and Southern Florida Flood Control Project, Martin County," dated September 22, 1967. The Corps of Engineers' report was not used in the decision-making process but rather was included in the staff report to provide a comprehensive overview. Whether the Corps of Engineers' plans were ever implemented would not affect the recommendations of the staff. The land in question is currently zoned "IZ" (interim zoning) according to Martin County's zoning regulations. In this category, if the neighborhood is predominantly one classification of usage, then the zoning director is to be governed by the regulations for that class of usage in determining the standard zoning regulations to be applied to the interim zoning district. If no trend of development has been established in the neighborhood, the minimum standards of the R2 single family zoning district are to be complied with. Rule 16K-4.035, Florida Administrative Code, entitled Basis of Review of Applications for Construction of Works, provides in Section (2) that all applications such as the instant one shall be reviewed in accordance with the provisions of the district's "Basis Of Review For Construction Of Surface Water Management Systems Serving Projects With Two Or More Acres Of Impervious Area Within The South Florida Water Management District - December, 1977." The Basis of Review provides in Part VI that before an application will be considered for the issuance of a permit, the proposed land use must be "compatible with the applicable zoning for the area." The evidence indicates that the land in question has a history of agricultural use. However, the evidence also discloses that far from being a trend towards agricultural use there is a trend away from it. A major portion of the neighboring lands will be devoted to Phases I, II, IV and V, of the Pal-Mar Water Management District. According to Florida Land Sales Board registrations, the land in question is subdivided into one-half acre, one acre, 1.4 acre and two acre lots. The average project density is one lot per acre. In addition, there is some mobile home usage within neighboring areas. If there is a trend, it is toward R2 zoning type usage. SFWMD's staff concluded that the proposed land use was compatible with the applicable zoning for the area. Martin County has failed to establish that such compatibility does not exist. In the Redraft of Order Permitting Change of Plan of Reclamation and Change of Name dated November 4, 1969, the Honorable C. Pfeiffer Trowbridge, Circuit Court Judge of the Nineteenth Judicial Circuit in and for Martin County, observes that the Petitioner in that case (herein Pal-Mar) "permanently and irrevocably withdrew its application to drain into the St. Lucie canal thereby removing all reasons for objections" to the proceedings in Circuit Court. However, there is no evidence to indicate that there exists a prohibition against drainage into the St. Lucie canal or that Judge Trowbridge's order is intended to preclude approval of Pal-Mar's present application.
The Issue The issues to be determined in this appeal are whether the decision of the Board to approve Flexible Development Application FLD2019-01002 (Application) filed by Edgewater Valor cannot be sustained by substantial competent evidence before the Board, or that the decision of the Board departed from the essential requirements of law.
Findings Of Fact Edgewater Valor proposes to develop an 80-unit attached dwelling with 164 associated off-street parking spaces on 2.931 acres of property it owns. The property is located at 1026 Sunset Point Road and 1919 Edgewater Drive in Clearwater, Florida. The proposal consists of three buildings and a structured parking platform with a pool and deck on the west side of the parking platform. Sixty percent of the 164 parking spaces is garage parking, with the rest as exposed surface parking. Two of the buildings, both in the T district, are proposed at a height of 86 feet measured from base flood elevation. The third building, in the MDR district, is proposed at a height of 38 feet measured from base flood elevation. The buildings in the T district are set back 152 feet from the east property line. The building in the MDR district is set back 75 feet from the east property line. The proposal includes landscaping and setbacks that exceed the Board's requirements for approval. The Application requests Level Two approval of flexibility for a building height of 86 feet from base flood elevation in the T zoning district. A Level One approval allows a building height of up to 50 feet, and up to 100 feet as a Level Two approval. The Application also requests Level Two approval of flexibility for an attached dwelling use in the MDR zoning district. The attached dwelling has a building height of 38 feet from base flood elevation, where up to 40 feet is allowed as a Level Two approval and flexibility from lot width in the MDR zoning district. Edgewater Valor owns 2.437 acres of the property which is zoned T with an underlying Comprehensive Plan Future Land Use category of Resort Facilities High (RFH). The remaining 0.494 acres is zoned MDR with an underlying Comprehensive Plan Future Land Use category of Residential Medium (RM). The property to the north of the proposed development is zoned T and is currently developed as a Comfort Suites hotel. The property to the south is zoned Office (O), MDR, and Preservation (P). There is a vacant automobile service station adjacent to the proposed development to the southwest, and a multi-family development to the south across Sunset Point Road. The property to the east is zoned MDR and P with single-family detached dwellings and attached dwellings further east along Sunset Point Road. The property to the west is zoned Commercial (C) and P. EDNA's boundaries are Sunset Point Road north to Union Street, and Edgewater Drive east to Pinellas Trail. The neighborhood consists of 400 homes that are mostly single-family, single-story detached dwellings. The proposed development would be located in the southwest corner of the neighborhood at the intersection of Edgewater Drive and Sunnydale Drive. The Comfort Suites hotel is located directly across from the proposed development on the opposite corner of Sunnydale Drive and Edgewater Drive. Sunnydale Drive travels east away from Edgewater Drive and dead-ends as a cul-de-sac with mostly single- family detached dwellings.
Findings Of Fact Pal-Mar is a water management district operating pursuant to Chapter 298, Florida Statutes, in Martin and Palm Beach Counties, Florida. Pal-Mar has proposed to construct a drainage system serving approximately 22,500 acres of land of which approximately 18,000 acres are located in Martin County. There are five (5) proposed phases of construction required to complete the drainage system. Four (4) of these phases, I, II, IV and V, are considered by Pal-Mar to constitute a closed system as defined in Section 373.403(6), Florida Statutes. There is no connection between phase III and the rest of the system. During mid 1976, Pal-Mar filed an application with SFWMD for a surface water management permit for Pal-Mar's water management plan for phase III. It was stated therein that Pal-Mar considered phases I, II, IV and V to be a closed system and exempt from the permitting requirement of Part IV, Chapter 373, Florida Statutes. At its regular monthly meeting of October 7, 1976, the governing board of SFWMD considered the status of phases I, II, IV and V of the Pal-Mar plan. A motion to declare phases I, II, IV and V not a closed system failed. No other motion was made concerning the system. At its annual landowners meeting of June 16, 1977, the president of Pal-Mar's Board of Supervisors indicated that Pal-Mar had received a "tentative declaration" that phases I, II, IV and V constitute a closed system. On September 2, 1977, Martin County initiated the instant proceeding. Phases I, II and V of the propose drainage system are separated from phase IV by State Road 711. The section of State Road 711 in Martin County is maintained by Martin County and Martin County owns a 200 foot easement for the State road. The southern portion of State Road 711 within the drainage system runs through Palm Beach County. The Jupiter Grade Road passes through the center of the proposed drainage system's reservoir in an east/west direction. Litigation is presently pending between Pal-Mar and Martin County as to the ownership of the Jupiter Grade Road. Pal-Mar has acquired no easements or other legal use of the Jupiter Grade Road from Martin County nor has Pal-Mar obtained from Martin County any form of easement or license to cross State Road 711 for purposes of implementing the drainage system. As part of its plan, Pal-Mar intends to acquire from either Martin County or Palm Beach County such control of or access to State Roads 711 and its appurtenant easement as is necessary to implement the drainage system plan. As to the Jupiter Grade, Pal-Mar intends to either provide a two part reservoir with containment levees to protect the Jupiter Grade, to seek requisite ownership or control of the Jupiter Grade from Martin County or to voluntarily relocate the Jupiter Grade as part of its proposed project. Finally, the project will require a joint levee east of phase IV, 500 feet north of State Road 706. Pal-Mar intends as part of its plan to obtain necessary easements for construction of the joint levee. The proposed system requires no water for filling, replenishing and maintaining its water level and indeed requires no water at all.
Recommendation For the foregoing reasons, it is recommended that South Florida Water Management District enter its declaratory statement declaring that the Pal-Mar Water Management District plan is a closed system as that term is defined in Section 373.403(6), Florida Statutes. DONE and ENTERED this 8th day of March, 1978, in Tallahassee, Florida. MICHAEL R. N. McDONNELL Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of March, 1978.
Conclusions Having considered the totality of the record in this cause and being mindful of the development order of Lee County referenced above and the lack of expressed opposition to the establishment of the subject community services district by Lee County or any other person or entity, it is, concluded: That all statements contained within the petition are found to be true and correct. That the creation of the district is consistent with applicable elements or portions of the Lee County Comprehensive Plan. That the area of land within the proposed district is of sufficient size, sufficiently compact, and is sufficiently contiguous to be developable as one functional, interrelated community. That the district is the best alternative available for delivering community development services and facilities to the area that will be served by the district. That the community development services and facilities of the district would be compatible with the capacity and uses of existing local and regional community development services and facilities. That the area that will be served by the district is amenable to separate, special-district government. DONE and ENTERED this 30th day of January, 1986 in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of January, 1986. COPIES FURNISHED: Ken van Assenderp, Esq. YOUNG, VAN ASSENDERP, VARNADOE & BENTON, P.A. Post Office Box 1833 Tallahassee, Florida 32302 Melvin D. Deutsch, II, Esq. Timothy Jones, Esq. Westinghouse Gateway Communities, Inc. 1625 Hendry Street, Suite 201 Fort Myers, Florida 33901 Michael J. Ciccarone, Esq. Assistant County Attorney Lee County Post Office Box 398 Fort Myers, Florida 33902 Glenn Robertson, Secretary Florida Land Water Adjudicatory Commission Office of the Governori The Captol Tallahassee, Florida 32301
The Issue 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 before the Florida Land and Water Adjudicatory Commission (FLWAC) in this proceeding is whether to grant the Petition to Establish the Pioneer Community Development District (Petition). The local public hearing was for purposes of gathering information in anticipation of quasi-legislative rulemaking by FLWAC.2
Conclusions An Administrative Law Judge of the Division of Administrative Hearings has entered an Order in this proceeding relinquishing jurisdiction to the Department of Community Affairs (Department or DCA) for final action. A copy of the Order is attached to this Final Order as Exhibit A. Filed July 15, 2011 12:57 PM Division of Administrative Hearings FINAL ORDER NO. DCA 11-GM-139
Other Judicial Opinions REVIEW OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030(b) (1) (C) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT’S AGENCY CLERK, 2555 SHUMARD OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100, WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. FINAL ORDER NO. DCA 11-GM-139 CERTIFICATE OF FILING AND SERVICE I HEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Community Affairs, and that true and correct copies have been furnished by the manner indicated to each of the persons listed below on this [5 hoy of 2011. \ “ath bd bn fe Paula Ford Agency Clerk Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 By U.S. Mail The Honorable D. R. Alexander Administrative Law Judge Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 By Electronic Mail Mark Scruby, Esquire Clay County Attorney Lynette Norr, Esquire Post Office Box 1366 Assistant General Counsel Green Cove Springs, Florida Department of Community Affairs 32043 2555 Shumard Oak Boulevard Mark .Scruby€co.clay.fl.us Tallahassee, Florida 32399-2100 Lynette .Norr@dca.state.fl.us T.R. Hainline, Jr., Esquire Paige H. Johnston, Esquire 1301 Riverplace Boulevard, Suite 1500 Jacksonville, Florida 32207 thainline@rtlaw.com pjyohnston@rtlaw.com
