The Issue The issue is whether the Petition to Establish the Bexley Community Development District I (Petition) meets the applicable criteria set forth in Chapter 190, Florida Statutes (2006),1 and Florida Administrative Code Rule Chapter 42-1. The purpose of the hearing was to gather information in anticipation of quasi- legislative rulemaking by the Florida Land and Water Adjudicatory Commission (Commission).
Conclusions An Administrative Law Judge of the Division of Administrative Hearings has entered an Order Closing File in this proceeding. A copy of the Order is attached to this Final Order as Exhibit A.
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. DCA09-GM-278 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 OM aay ° , 2009. Paula Ford Agency Clerk By U.S. Mail Honorable Donald R. Alexander Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 Shannon K. Eller Deputy General Counsel City of Jacksonville 117 West Duval Street, Suite 480 Jacksonville, FL 32202 By Hand Delivery Lynette Norr Assistant General Counsel Department of Community Affairs
The Issue The issue is whether Ordinance 02-06, as adopted by the City of Key West and approved by the Department of Community Affairs, is consistent with the Principles for Guiding Development for the City of Key West Area of Critical State Concern, as provided in Rule 28-36.003(1), Florida Administrative Code.
Findings Of Fact All Petitioners, except John Abbe, and all Intervenors are substantially affected persons. After the commencement of this proceeding, Petitioner John Abbe sold his property and voluntarily dismissed his claim. The parties agreed that, for mutual convenience, the style of this case would remain unchanged, but references to "Petitioners" or the "parties" below do not include John Abbe. At all material times, each Petitioner owned or managed for rental residential real property in the City of Key West (as an area, Key West). Each Petitioner rented these properties for tourists for terms of less than 30 days or one calendar month. None of these properties was the primary residence of any Petitioner who is a natural person. Petitioners have transient occupational licenses issued by the State of Florida and Monroe County. Petitioners Hein and Klein do not have occupational licenses from Intervenor City of Key West (as a municipality, City) for transient rentals, but five of the 30 properties managed by Petitioner Property Management of Key West, Inc. are properly licensed with City transient occupational licenses. Intervenor Martha DuPont (DuPont) owns a residence in the Truman Annex development in Key West. Members of Intervenor Truman Annex Residents, Inc., (TAR) also own residences in the Truman Annex. Properties adjacent to the Truman Annex are devoted to transient rentals, and DuPont and TAR's members have been disturbed in the enjoyment of their residences by transient renters occupying the properties that they have rented. On February 20, 2002, the City adopted Key West Ordinance 02-06. Ordinance 02-06 amends Section 5-21.2 of the City land development regulations by amending the definition of "Transient Living Accommodations" and adds a new regulation governing transient living accommodations in residential dwellings. The amendment to the definition of "Transient Living Accommodations" adds that advertising or holding out a property as available for rent to transients satisfies the definition, even if no rental occurs, and that "a short-term rental use of or within a single family dwelling, a two family dwelling or a multi-family dwelling . . . shall be deemed a transient living accommodation." The new land use regulation is Section 2-7.21, which is entitled, "Transient Living Accommodations in Residential Dwellings--Regulations." Section 2-7.21 accomplishes the restrictions to which Petitioner object and provides, in part: Intent. These regulations apply only to the transient use of residential dwellings. In 1986, the City enacted former zoning code Section 35.24(44) which provided the following definition of a transient living accommodation: "Commercially operated housing principally available to short-term visitors for less than twenty-eight (28) days." (This definition shall hereinafter be referred to as the "Former Transient Definition.") Some property owners and developers interpreted the Former Transient Definition to mean that an owner could rent his or her residential dwelling for less than half the year without the dwelling losing its residential status, and therefore without the need for a City-issued transient license (so long as State of Florida licensing requirements were met). This interpretation went unchallenged by the City. Three categories of transient use of residential dwellings resulted: (1) some owners obtained a residential license allowing unrestricted transient use; (2) some owners followed the Former Transient Definition and, accordingly, rented their properties less than half the year; and (3) some owners put their residences to a transient use without City or State license and without regard to existing regulations. In addition, many residential dwelling owners never put their properties to a transient use and they no longer have the opportunity to do so under the City's current Rate of Growth Ordinance. The City Commission finds that short-term or transient rentals affect the character and stability of a residential neighborhood. The home and its intrinsic influences are the foundation of good citizenship; although short-term tenants no doubt are good citizens generally, they do not ordinarily contribute to activities that strengthen a community. Therefore, the City of Key West intends by these regulations to establish a uniform definition of transient living accommodations, and to halt the use of residences for transient purposes in order to preserve the residential character of neighborhoods. The City has provided only a brief phase-out period in recognition that in many instances investment expectations have already been met either through rental income or rising market value. * * * Key West is a designated area of critical state concern (ACSC). Therefore, on February 22, 2002, the City submitted Ordinance 02-06 to Respondent, which is legally obligated to review proposed land development regulations in ACSC. By Final Order issued April 2, 2002, Respondent found that Ordinance 02-06 is consistent with the Principles for Guiding Development of the City of Key West Area of Critical State Concern, as set forth in Rule 28-36.003(1), Florida Administrative Code (Principles). (All references to Rules are to the Florida Administrative Code.) Specifically, Respondent found that Ordinance 02-06 is consistent with all of the Principles and "promotes and furthers" Principles a and h. The Principles, which were adopted by the Administration Commission on February 28, 1984, consist of the following objectives: Strengthen local government capabilities for managing land use and development. Protection of tidal mangroves and associated shoreline and marine resources and wildlife; Minimize the adverse impacts of development of the quality of water in and around the City of Key West and throughout the Florida Keys; Protection of scenic resources of the City of Key West and promotion of the management of unique, tropical vegetation; Protection of the historical heritage of Key West and the Key West Historical Preservation District; Protection of the value, efficiency, cost-effectiveness and amortized life of existing and proposed major public investments, including: The Florida Keys Aqueduct and water supply facilities, Sewage collection and disposal facilities, Solid waste collection and disposal facilities, Key West Naval Air Station, The maintenance and expansion of transportation facilities, and Other utilities, as appropriate; Minimize the adverse impacts of proposed public investments on the natural and environmental resources of the City of Key West; and Protection of the public health, safety, welfare and economy of the City of Key West and the maintenance of Key West as a unique Florida Resource. Unlike the other Principles, Principle a derives its importance from the remedial process implicit in the ACSC rules. Pursuant to Rule 28-36.001(3), the necessity of the ACSC designation is obviated, if the City implements the Principles through the adoption and enforcement of a compliant comprehensive plan and land development regulations. The City's comprehensive plan prohibits transient rentals in the following districts: Coastal Low Density Residential Development, the Single Family Residential Development, Medium Density Residential Development, High Density Residential Development, Mixed Use Residential/Office, Limited Commercial Development, Historic High Density Residential Development, Historic Medium Density Residential Development, Historic Residential/Office, Conservation, Military, Public Services, and Historic Residential/Office (as to residential properties not already licensed for transient use prior to the effective date of the comprehensive plan). The City's comprehensive plan allows transient rentals in the following districts: Salt Pond Commercial Tourist, General Commercial Development, and Historic Commercial Tourist. The City's comprehensive plan defers the land-use decision concerning transient rentals to the land development regulations in the following districts: Mixed Use Planned Redevelopment and Development and Historic Planned Redevelopment and Development (Truman Annex is the only area bearing this designation). The City's comprehensive plan allows and prohibits transient rentals in different parts of the following districts: Historic Residential Commercial Core (allowed in subdistricts 1 and 3, but prohibited in subdistrict 2) and Historic Neighborhood Commercial (allowed in subdistricts 1 and 3, but prohibited in subdistrict 2). Ordinance 02-06 is consistent with Principle a because the ordinance implements plan designations that prohibit transient rentals and executes plan designations that defer the land-use decision regarding transient rentals to the land development regulations. Petitioner's contentions to the contrary are unpersuasive. Provisions of the City's comprehensive plan stress the importance of tourism, but the City's decision to restrict transient rentals does not necessarily conflict with the presentation of Key West as an appealing tourist destination. The record does not suggest that the loss of rental homes, many located in established residential neighborhoods, would diminish Key West's tourist appeal. Analysis of Principle a does not require the resolution of such longstanding disputes between the parties, such as whether the prohibition of transient rentals accomplished by Ordinance 02-06 maintains and enhances Key West's charm and tourist appeal, as ordinance proponents contend, or substantially reduces the inventory of rental properties for a particular segment of the tourist market, as ordinance opponents contend. As is more apparent in the discussion below of Principle h, the relevant inquiry is that of consistency, which encompasses a broader range of permissible land use regulations relative to the Principles--not promotion, which, unwisely used by Respondent in its final order, encompasses a narrower range of permissible land use regulations relative to the Principles. Ordinance 02-06 is consistent with the City's comprehensive plan's restrictions on transient rentals and identifies those districts for which the plan defers to the regulations with respect to land use regulation. Therefore, the passage of Ordinance 02-06 clearly demonstrates the City's emerging capability for managing land use and development. As is relevant to this case, Principle h is to protect the welfare and economy and maintain Key West's role as a unique Florida resource. By implication, Petitioners contend that the Principles require the City not to restrict the availability of transient rentals in Key West. Resisting Petitioners' claims, Respondent, the City, and Intervenors contend that the Principles require the City to restrict the availability of transient rentals in Key West. Principle h illustrates the problem with Respondent's finding that Ordinance 02-06 "promotes and furthers" a Principle, when only consistency is required. The concept of consistency contemplates a range of permissible planning solutions, some of which may even be contradictory. The concept of promotion is less amenable to contradictory planning solutions, such as, in this case, the restriction or extension of transient rentals. The protection of the public welfare or economy and maintenance of Key West as a unique Florida resource are concepts that will accommodate a considerably wider range of planning decisions than will the protection of mangroves and water quality. On this record, the City could, consistent with these salutary exhortations imbedded in Principle h, restrict or extend transient rentals. Respondent's finding that Ordinance 02-06 promotes Principle h is an unfortunate departure from the statutory standard of consistency because the erroneous corollary of this finding is that Principle h impliedly discourages, if not prohibits, a later ordinance extending the availability of transient rentals. Principles requiring the protection of natural and historic resources and governing infrastructure are sufficiently demanding, and the range of responsive planning solutions sufficiently narrow, that a specific planning strategy may be mandated or prohibited, even though the standard is only consistency. However, the treatment of transient rentals does not impact these Principles in any meaningful way, so the range of planning solutions available to the City is not significantly restricted. In preempting the rights and responsibilities traditionally accorded local governments in Florida, the Administration Commission explicitly limited itself to matters involving natural and historic resources and infrastructure. Rule 28-36.004(1) states: "The [Principles] are oriented towards [sic] protection of natural and historic resources and public investments of regional and State importance." Obviously, Rule 28-36.004(1) omits any mention of the subjects of Principles a and h, which are the two Principles that Respondent found were promoted by Ordinance 02-06. Among all the Principles, these two have the broadest application, because they are not limited to natural and historic resources and infrastructure, but impose the least restrictions upon the City, because they are not limited to natural and historic resources and infrastructure. Respondent cites these two Principles in defense of Ordinance 02-06, not because Respondent has a weak case, but because a transient rental ordinance has little, if anything, to do with the Principles and their purposes. However annoying the presence of transient rentals may be to some residents or costly the absence of transient rentals may be to some landowners and rental agents, the status of transient rentals immediately prior to this ordinance or immediately after it has no significant impact upon Key West's status as an ACSC. The record does not support a claim that the presence or absence of transient rentals forms a distinctive historical feature in Key West, has any bearing on the natural resources of Key West, or ultimately involves the public welfare or economy of Key West in any measurable way. Thus, Ordinance 02-06 is consistent with Principle h, just as would be an ordinance repealing Ordinance 02-06 and restoring transient rentals to their status just prior to the adoption of Ordinance 02-06. For similar reasons, Ordinance 02-06 is consistent with the remaining Principles.
Recommendation It is RECOMMENDED that the Department of Community Affairs enter a final order finding Ordinance 02-06 consistent with the Principles for Guiding Development in the City of Key West, as set forth in Rule 28-36.003(1), Florida Administrative Code. DONE AND ENTERED this 4th day of August, 2003, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 4th day of August, 2003. COPIES FURNISHED: David J. Audlin, Jr. 415 Eaton Street Key West, Florida 33040 Jeffrey M. Bell Ritter, Chusid, Bivona and Cohen, LLP 7000 West Palmetto Park Road, Suite 400 Boca Raton, Florida 33433 Timothy E. Dennis Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Lee R. Rohe Post Office Box 420259 Summerland Key, Florida 33042 Colleen M. Castillo, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 100 Tallahassee, Florida 32399-2100 David L. Jordan, Deputy General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 325 Tallahassee, Florida 32399-2100
The Issue The issue in this proceeding is whether the petition to establish the Sampson Creek Community Development District meets the applicable criteria set forth in Chapter 190, Florida Statutes, and Chapter 42-1, Florida Administrative Code.
Findings Of Fact Petitioner is seeking the adoption of a rule by the Commission to establish the Sampson Creek Community Development District. The proposed District consists of approximately 1,015 acres located within unincorporated St. Johns County, Florida. There are two out-parcels, totaling 3.7 acres, within the areas to be included in the District. No adverse impact on these out parcels is expected from the establishment of the district. The estimated cost of the infrastructure facilities and services which are presently expected to be provided to the lands within the District was included in the Petition. Petitioner's Composite Exhibit 1 was identified for the record as a copy of the Petition and its exhibits as filed with the Commission. Witnesses Maier, Walters, Boring, and Fishkind each stated that he had reviewed portions of the contents of the petition and its attachments and affirmed the petitions findings. Witness Maier testified that the Petitioner has written consent to establish the District from the owners of one hundred percent of the real property located within the lands to be included in the District. Witness Maier also presented deeds for parcels of land within the boundaries of the proposed District which have been acquired by the Petitioner or its subsidiaries, as well as consent forms from the Petitioner's subsidiaries. The Petition and its attached exhibits are true and correct, with the addition of the deeds showing land ownership and owners' consent as specified above. Witnesses Walters and Fishkind reviewed the proposed District in light of the requirements of the State Comprehensive Plan, Chapter 187, Florida Statutes. Witness Walters also reviewed the proposed District in light of the requirements of the St. Johns County Comprehensive Plan. From a planning and economic perspective, four subjects, subject 16, 18, 21, and 26, of the State Comprehensive Plan apply directly to the establishment of the proposed District as do the policies supporting those subjects. Subject 16, titled Land Use, of the State Comprehensive Plan recognizes the importance of locating development in areas with the fiscal ability and service capacity to accommodate growth. The proposed District will: have the fiscal capability to provide a wide range of services and facilities to the population in the designated growth area; help provide infrastructure to development the County, thereby helping limit unintended, unplanned sprawl; facilitate the delivery of infrastructure and services to assist in fulfilling the community plan. Subject 18, titled Public Facilities of the State Comprehensive Plan provides that the state shall protect substantial investments in public facilities and plan for and finance new facilities to serve residents in a timely, orderly and efficient manner. The proposed District will be consistent with this element because the District will: plan and finance the infrastructure systems and facilities needed for the development of lands within the District in a timely, orderly, and efficient manner; provide the infrastructure systems and facilities within the District with the landowners and residents benefiting from the new public facilities bearing the costs associated with construction, operation, and maintenance of the facilities; act in a type of 'infrastructure partnership' with St. Johns County; have financial self-sufficiency through the use of special assessments, as well as user charges or fees, to provide public facilities; provide a consistent, innovative and fiscally sound alternative for financing public facilities by bringing the cost of managing and financing public facilities down to a level of government closest to its beneficiaries and connecting those who pay for facilities with those who directly benefit from those facilities and services; and be structured to assure secure revenue sources capable of meeting District responsibilities. Subject 21, titled Governmental Efficiency of the State Comprehensive Plan provides that governments shall economically and efficiently provide the amount and quality of services required by the public. The proposed District will be consistent with this element because the proposed District will: cooperate with other levels of Florida government, such as through entering into interlocal agreement to address maintenance issues for certain roads; be established under uniform general law standards as specified in Chapter 190, Florida Statutes; be professionally managed, financed, and governed by those whose property directly receives the benefits; not burden the general taxpayer with costs for services or facilities inside the District; and plan and implement cost efficient solutions for the required public infrastructure and assure delivery of selected services to residents. Subject 26, titled Plan Implementation of the State Comprehensive Plan, provides that systematic planning shall be integrated into all levels of government, with emphasis on intergovernmental coordination and citizen involvement. The proposed District is consistent with this element of the State Comprehensive Plan because: the proposed District will systematically plan for the construction, operation and maintenance of the public improvements and the community facilities authorized under Chapter 190, Florida Statutes, subject to and not inconsistent with the local government comprehensive plan and land development regulations; the District meetings are publicly advertised and are open to the public so that all District property owners and residents can be involved in planning for improvements; Section 189.415, Florida Statutes, requires the District to file and update public facilities reports with the County, which it may rely upon in any revisions to the local comprehensive plan. Based on the testimony and exhibits in the record, the proposed District will not be inconsistent with any applicable element or portion of the State Comprehensive Plan. Witness Walters testified that since St. Johns County has already found the development within the proposed District to be not inconsistent with the St. Johns County local comprehensive plan, the establishment of a community development district would not cause any inconsistency and would be in furtherance of four of the plan's policies, goals and objectives: Policy H.1.3.4 of the St. Johns County Comprehensive Plan states that 'DRI's planned unit subdivisions, and other large developments shall provide for the dedication of parks and open space to be generated by the development according to the level of service standards.' The proposed District will finance the construction of, and ultimately own and maintain, a community recreational facility. Goal J.1 of the St. Johns County Comprehensive Plan states that St. Johns County is to ensure the orderly and efficient provision of infrastructure facilities and services such as roads, utilities, recreation, and drainage. The proposed District will serve as an alternative provider of these infrastructure systems and services to meet the needs of the lands within its boundaries; Objective J.1.7 of the St. Johns County Comprehensive Plan states that the County shall manage fiscal resources to ensure the provision of needed infrastructure. The proposed District will provide the infrastructure facilities and services needed for its lands without burdening the fiscal resources of the County or impacting the bonding limits contained in Policy J.1.7.; Objective K.1.6 of the St. Johns County Comprehensive Plan calls for St. Johns County to work cooperatively with other units of government to address issues and concerns. The proposed District may be expected to enter into interlocal agreements with the County to provide certain enhanced maintenance. Additionally, over the long term, the establishment of the proposed District will provide another unit of local government in place and able to cooperate with the County on future issues and concerns. The State of Florida Department of Community Affairs also reviewed the petition to establish the proposed District and concluded that the petition was consistent with the local comprehensive plan. Based on the evidence in the record, the proposed District will not be inconsistent with any applicable element or portion of the local comprehensive plan, and will in fact further the goals provided. Most of the land in the proposed District is part of a planned community included in a Planned Unit Development (PUD) approval issued by St. Johns County. The PUD was approved on February 10, 1998. The PUD is found in St. Johns County Ordinance No. 98-7. Section 6 of the PUD Application, which is incorporated into Ordinance 98-7 by reference, explicitly states that a community development district will be established and requires the establishment of the District prior to the sale of the first lot within the development. Petitioner is developing all of the lands within the District as a single master-planned community. Witness Walters testified that functional interrelation means that each community purpose has a mutual reinforcing relationship with each of the community's other purposes. Each function requires a management capability, funding source and an understanding of the size of the community's needs, so as to handle the growth and development of the community. Each function must be designed to contribute to the development or the maintenance of the community. The size of the District as proposed is approximately 1,105 acres. From a planning perspective, this is a sufficient size to accommodate the basic infrastructure facilities and services typical of a functionally interrelated community. Compactness relates to the location in distance between the lands and land uses within a community. The community is sufficiently compact to be developed as a functionally inter-related community. The compact configuration of the lands will allow the District to provide for the installation and maintenance of its infrastructure facilities in a long-term cost efficient manner. The property is sufficiently contiguous when all parts of a project are either in actual contact or are close enough to allow the efficient design and use of infrastructure. The proposed District is sufficiently contiguous for planning purposes and for the purpose of district governance. The size of the proposed community within the District provides a sufficient economic base to absorb the debt costs and annual operating costs for the proposed District. There will be no economic disincentives to the provision of the infrastructure facilities contemplated. From planning, economics, engineering, and management perspectives, the area of land to be included in the proposed District is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developed as a single functionally interrelated community. It is presently intended that the District will participate in the construction or provision of certain infrastructure improvements as outlined in the petition. Installation and maintenance of infrastructure systems and services by the District is expected to be financed by bonds and repaid through the imposition of special assessments on benefited property within the District. Use of such assessments will ensure that the real property benefiting from District services is the same property which pays for them. Two types of alternatives to the use of the proposed District were identified. First, the County might provide facilities and services from its general fund or through a MSTU. Second, facilities and services might be provided by some private means, without public bidding, with maintenance delegated to a homeowners association (HOA). The District exceeds the available alternatives at focusing attention to when and where and how the next system of infrastructure will be required. This results in a full utilization of existing facilities before new facilities are constructed and reduces the delivered cost to the citizens being served. Only a community development district allows for the independent financing, administration, operations, and maintenance of the land within such a district. Only a community development district allows district residents to completely control the district. All of the other alternatives do not have these characteristics. From an engineering perspective, the proposed District is the best alternative to provide the proposed community development services and facilities because it is a long-term stable, perpetual entity capable of maintaining the facilities over their expected life. From planning, economic, engineering, and special district management perspectives, the proposed District is the best alternative available for delivering community development services and facilities to the are that will be served by the District. The services and facilities proposed to be provided by the District are not incompatible with uses and existing local and regional facilities and services. The District's facilities and services within the proposed boundaries will not duplicate any existing regional services or facilities which are provided to the lands within the District by another entity. None of the proposed services or facilities are presently being provided by another entity for the lands to be included within the District. Therefore, the community development services and facilities of the proposed district will not be incompatible with the capacity and uses of existing local and regional community development services and facilities. As cited previously, from planning, economics, engineering, and special district management perspectives, the area of land to be included in the proposed District is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developed and become a functionally interrelated community. The lands to be included within the proposed District have a need for the basic infrastructure being provided. From an engineering perspective, the area within the proposed District is also large enough to support a staff necessary to operate and maintain the proposed infrastructure systems and facilities. Based upon these characteristics, the proposed District is expected to be financially viable. From planning, engineering, economic, and management perspectives, the area that will be served by the intended District is amenable to separate special-district government. Chapter 190, Florida Statutes, and Chapter 42-1, Florida Administrative Code, impose specific requirements regarding the petition and other information to be submitted to the Commission. Section 190.005(1)(a), Florida Statutes, requires the petition to contain a metes and bounds description of the external boundaries of the District. Petitioner's Composite Exhibit 1 contains such a description. Section 190.005(1)(a)1, Florida Statutes, also requires a description of any real property within the external boundaries which is to be excluded from the District and the last known address of the owners of such properties. Petitioner's Composite Exhibit 1 contains the required information. Section 190.005(1)(a), Florida Statutes, requires that the petition contain the proposed timetable for the construction of any district services and the estimated construction costs for those services as well as the designation of the future general distribution, location, and extent of public and private land uses proposed for the area by the future land use element of the adopted local government comprehensive plan. Petitioner's Composite Exhibit 1 contains this information. Section 190.005(1)(a), Florida Statutes, requires the petition to contain written consent to establishment of the District by the owners of one-hundred percent of the real property to be included within the proposed District. Petitioner's Composite Exhibit 1 contains this information which was supplemented by Petitioner at hearing, as it or its subsidiaries acquired title to the lands proposed to be included within the District. Sections 190.005 and 190.006, Florida Statutes, require that each member of a board of supervisors be a resident of Florida and a citizen of the United States. The proposed board members meet these criteria. Section 109.005(1)(a), Florida Statutes, requires the petition to include a Statement of Estimated Regulatory Costs (SERC), which meets the requirements of Section 120.541, Florida Statutes. The petition contains a SERC. It meets all requirements of Section 120.541, Florida Statutes. The SERC contains an estimate of the costs and benefits to all persons directly affected by the proposed rule to establish the District -- the State of Florida and its citizens, the country and its citizens, Petitioner, and consumers. Beyond administrative costs related to rule adoption, the State and its citizens will only incur minimal costs from establishing the District. These costs are related to the incremental costs to various agencies of reviewing one additional local government report. The proposed District will require no subsidies from the State. Benefits will include improved planning and coordination of development, which is difficult to quantify but is nonetheless substantial. Administrative costs incurred by the County related to rule adoption should be minimal. Benefits to the County will include improved planning and coordination of development, without incurring any administrative or maintenance burden for facilities and services within the proposed District except for those it chooses to accept. Consumers will pay non-ad valorem or special assessments for certain facilities. Location within the District is voluntary. Generally, District financing will be less expensive than maintenance through a property owners' association or capital improvements financed through developer loans. Benefits to consumers in the area within the community development district will include a higher level of public services and amenities than might otherwise be available, completion of District-sponsored improvements to the area on a timely basis, and a larger share of direct control over community development services and facilities within the area. Petitioner has complied with the provisions of Section 190.005(1)(b), Florida Statutes, in that St. Johns County was paid the requisite filing fees. Section 190.005(1)(d), Florida Statutes, requires the Petitioner to publish notice of the local public hearing in a newspaper of general circulation in St. Johns County for four consecutive weeks prior to the hearing. The notice was published in a newspaper of general paid circulation in St. Johns County (the St. Augustine Record) for four consecutive weeks on March 13, 2000, March 20, 2000, March 27, 2000, and April 3, 2000. All publications were prior to the hearing. Mr. Stephenson, on behalf of the County's community development district processing group formed in accordance with Section 5.06.00 of the St. Johns County Land Development Code, presented the following proposed findings regarding the approval of the development within the proposed District: On October 28, 1999, the St. Johns County Board of County Commissioners entered into an Impact Fee Agreement with St. Joe Residential Acquisitions, Inc., and A & S Land Development Company to widen a portion of CR 210 in order to meet concurrency requirements for two projects. St. Joe Residential Acquisitions, Inc. is the developer of the property contained within the Sampson Creek CDD Petition. The project is approved with a Planned Unit Development (PUD) zoning and contains 799 single family residential dwelling units and associated roadways, retention areas, common areas, sales and recreation complex, and an 18-hole golf course. St. Johns County Board of County Commissioners approved the PUB on February 10, 1998. The PUD provides that a CDD will be established and will be in place prior to the sale of the first lot so that purchasers will be aware of their participation and membership in the CDD and of their obligation to pay any taxes that may be levied by the CDD. The PUD and Impact Fee Agreement are separate County approved documents and the creation and operation of a CDD does not in any way affect these documents or their approval without further review by the St. Johns County Board of Commissioners. Impact fee credits shall be awarded in accordance with approved Impact Fee Agreement which ensures that the credits are awarded to the appropriate entity. The CDD processing group finds no inconsistencies with the six factors as described in Section 190.005(6), Florida Statutes. With these findings, Mr. Stephenson testified that St. Johns County has no objection to the establishment of the proposed District.
Conclusions On Monday April 10, 2000, at 10:00 a.m., the local public hearing for the Petition to Establish the Sampson Creek Community Development District was held before Administrative Law Judge Diane Cleavinger, at the St. Johns County Public Library, 950 Davis Pond Boulevard, in St. Johns County, Florida. The hearing was conducted pursuant to Section 190.005, Florida Statutes, for the purpose of taking testimony, public comment, and receiving exhibits on the petition of the St. Joe/Arvida Company, L.P. (Petitioner) to establish the Sampson Creek Community Development District (District) in northern St. Johns County, Florida. This report is prepared and submitted to the Florida Land and Water Adjudicatory Commission (Commission) pursuant to Section 190.005, Florida Statutes.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Governor and Cabinet, sitting as the Florida Land and Water Adjudicatory Commission, pursuant to Chapters 120, and 190, Florida Statutes, and Chapter 42-1, Florida Administrative Code, establish the Sampson Creek Community Development District as requested by Petitioner by formal adoption of the proposed rule, after inclusion of the legal description, in substantially the form attached to this Report of Findings and Conclusions as Attachment 3. DONE AND ENTERED this 16th day of May, 2000, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of May, 2000. COPIES FURNISHED: Jonathan T. Johnson, Esquire Carolyn S. Raepple, Esquire Hopping, Green, Sams & Smith, P.A. 123 South Calhoun Street Post Office Box 6526 Tallahassee, Florida 32314 Daniel Woodring, Esquire Florida Land and Water Adjudicatory Commission The Capitol, Suite 2105 Tallahassee, Florida 32399 Donna Arduin, Secretary Florida Land and Water Adjudicatory Commission The Capitol, Suite 1601 Tallahassee, Florida 32399 Barbara Leighty, Clerk Growth Management and Strategic Planning The Capitol, Suite 2105 Tallahassee, Florida 32399 Carol Licko, General Counsel Office of the Governor The Capitol, Suite 209 Tallahassee, Florida 32399-0001
Conclusions THIS CAUSE came on for consideration before the Agency for Health Care Administration ("the Agency"), which finds and concludes as follows: The Agency issued the Petitioner ("the CHOW Applicant") the attached Notice of Intent to Deem Application Incomplete and Withdrawn from Further Review (Ex. 1). The parties entered into the attached Settlement Agreement (Ex. 2), which is adopted and incorporated by reference. The parties shall comply with the terms of the Settlement Agreement. If the Agency has not already completed its review of the application, it shall resume its review of the application. The Applicant shall pay the Agency an administrative fee of $2,500.00 within 30 days of the entry of this Final Order. A check made payable to the "Agency for Health Care Administration" containing the ARCA ten-digit case number(s) should be sent to: Agency for Health Care Administration Office of Finance and Accounting Revenue Management Unit 2727 Mahan Drive, MS# 14 Tallahassee, Florida 32308 Any requests for an administrative hearing are withdrawn. own costs and attorney's fees. This matter is closed. The parties shall bear their DONE and ORDERED in Tallahassee, Florida, on this day of .....A.'--'-r,1.&r--''-'- - - · ' 2011. -t-ary Agency for Health Care Administration 1 Filed April 5, 2011 4:16 PM Division of Administrative Hearings
Other Judicial Opinions A party that is adversely affected by this Final Order is entitled to seek judicial review which shall be instituted by filing one copy of a notice of appeal with the agency clerk of ARCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The notice of appeal must be filed within 30 days ofrendition of the order to be reviewed. CERTIFICATE OF SERVICE <£ i; I HEREBY CERTIFY that a true and correct copy of this Final Order was served on the below- named persons/entities by the method designated on this of '/ , 2011. Richard Shoop, A.icy Agency for Health Care Administration 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone (850) 412-3630 Jan Mills Facilities Intake Unit Agency for Health Care Administration (Interoffice Mail) Bernard Hudson, Unit Manager Long Term Care Unit Agency for Health Care Administration (Interoffice Mail) Finance and Accounting Revenue Management Unit Agency for Health Care Administration (Interoffice Mail) Peter A. Lewis, Esquire Law Office of Peter A. Lewis, P.L. 3023 North Shannon Lakes Drive, Suite 101 Tallahassee, Florida 32309 (U.S. Mail) Vikram K. Mohan, Senior Attorney Office of the General Counsel Agency for Health Care Administration (Interoffice Mail) Division of Administrative Hearings (Electronic Mail) 2
The Issue Whether Petitioners' Notice of Proposed Non-Substantial Change should be approved, thereby extending the commencement date and the first two phasing deadlines in their Development Order by four years and 364 days, and extending the termination date by eighteen months less two days.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background In this land use dispute, Petitioners, W. T. Cox, Jr., individually and as Trustee, Priceco (a Florida general partnership), Agnes T. May, John B. Whitaker, and Betty Sue Whitaker, have challenged a decision by Respondent, Lake County (County), which denied their Notice of Proposed Non- Substantial Change (NOPC). If approved, the NOPC would extend by four years and 364 days the commencement date and the first two phasing deadlines on a proposed project on their land, along with an extension of the termination date by eighteen months less two days. Petitioners are the owners of several parcels of property which make up a 1,433-acre tract of land east of the City of Clermont and the Florida Turnpike and just west of Lake Apopka in Lake County, Florida, known as Sugarloaf Mountain. Much, if not most, of the land was formerly orange groves, until a freeze destroyed the trees. W. T. Cox, Jr. is the principal landowner in the group, with 900 of the 1,433 total acres for the project. Petitioners intend to sell their separate parcels of property as a single parcel to a developer who will build a large planned unit development on the property. Efforts to initially develop the property began on February 19, 1991, when the County approved Planned Unit Development Ordinace No. 9-91 for Sugarloaf Mountain (Sugarloaf PUD). The Sugarloaf PUD contained no commencement or termination date requirements or limitations. On July 26, 1994, the County issued the Development Order for the Sugarloaf Mountain Development of Regional Impact (DO). An appeal of the DO was taken by the Department of Community Affairs (DCA) on September 23, 1994. By agreement of the parties, the matter was submitted to binding arbitration, and the sole issue was whether the project was vested. This appeal was resolved by an Arbitrator's Order dated October 16, 1995, which found that the property was vested by common law, and that the project was accordingly exempted from the density and intensity provisions of the County's then current Comprehensive Plan. On January 16, 1996, Petitioners and the County entered into an agreement, recorded in the public records, modifying the DO to conform to the terms of the settlement with the DCA. Under the terms of the original DO, Petitioners were obligated to "substantially proceed" with development within five years of the effective date of the DO (commencement date); otherwise, the development approval would terminate. As a result of the arbitration, this date was extended to December 18, 2000. The term "substantially proceed" is defined in the DO to mean "that the developer [has] constructed . . . improvements that can be expected to generate at least 392 ADT [average daily trips] . . . representing five percent of the first phase of the development." This requirement translates into approximately 40 conventional single-family homes, or 69 single-family homes for retirees. However, one could not construct such homes before preparing a capital improvements plan, and then providing substantial infrastructure improvements in accordance with that plan, including onsite road improvements, a stormwater management system, and a water and sewer system for all or most of the project. Therefore, all of these improvements would have to have been constructed along with at least 40 homes by December 18, 2000 (the commencement date), for the owners to have substantially proceeded within the meaning of the DO, and to have had the right to continue to develop the property. Under Section V of the DO, the commencement date "may be extended upon Lake County's finding of excusable delay, and no adverse impacts resulting from the delay, in any proposed development activity, consistent with the substantial deviation provisions of subsection 380.06(19), Florida Statutes." However, the DO does not define the term "excusable delay," or provide any criteria for applying this provision. Due to various circumstances described in greater detail below, development had not yet substantially proceeded by January 2000. Accordingly, on January 19, 2000, or eleven months prior to the required commencement date, Petitioners filed their NOPC with the County seeking to extend all deadlines by five years less one day. As required by law, copies were also filed with the East Central Florida Regional Planning Commission (ECFRPC) and the DCA. As later slightly modified at the request of the DCA, the NOPC requested an extension of the commencement date and the first two phasing deadlines by five years less one day, along with an extension of the termination date by eighteen months less two days. No substantive amendments were proposed in the NOPC. That is, Petitioners did not request any amendment affecting any of the criteria listed in the DCA's Substantial Deviation Determination Chart, and all existing land use entitlement quantities would remain unchanged. After reviewing the NOPC, on June 22, 2000, the ECFRPC advised the County by letter that because Section 380.06(19)(c), Florida Statutes, provided that "an extension of less than five years is not a substantial deviation," it concluded that "these proposed changes do not result in an automatic substantial deviation determination pursuant to the threshold criteria of section 380.06(19), Florida Statutes, nor is it expected that it will cause new or increased impacts to regional resources or facilities when considered independently or cumulatively with prior project changes." Therefore, the ECFRPC did not "recommend that this proposal be submitted for additional regional review by this agency." On February 29, 2000, the DCA advised the County by letter that "the proposed extension of the date of the build- out is not a substantial deviation and is not subject to a public hearing." The County also agreed that the NOPC was a nonsubstantial deviation and therefore it did not require further DRI review. However, the County required the NOPC to be considered by its Board of County Commissioners (Board) at a public meeting. Accordingly, on June 15, 2000, the County placed the NOPC on its agenda for a public meeting on September 26, 2000. At a meeting on September 19, 2000, counsel for Petitioners requested a continuance due to the unavailability of several key witnesses on the subject of excusable delay. A request for a 60-day continuance was again made at the outset of the meeting on September 26, 2000. Both requests for a continuance were denied and Petitioners were directed to present their case without the benefit of such witnesses. Speaking in opposition to the NOPC were the County's senior director of growth management who pointed out generally that the area in question was largely agricultural in nature and the proposed intensity of the project was incompatible with adjacent and adjoining land uses; that the 1991 PUD was inconsistent with the comprehensive plan; that the general welfare of the citizens should be taken into account when considering the request; and that the applicant had not met the burden of demonstrating substantial development. In addition, a number of area residents and representatives of organizations also spoke in opposition to the extension. They generally opposed a large development in that area of the County. Speaking in support of the NOPC were Cecilia Bonifay, Petitioners' counsel; Steven C. Ruoff, a realtor involved in the project; Steven H. Price, an attorney and the son of Karick Price, one of the owners; and John Reaves, a potential buyer of the property. Those persons generally pointed out that the principal owner (W. T. Cox, Jr.) was elderly and in poor health, and that because of restrictions in the original DO and the property's unusual location, the owners had experienced difficulty in marketing the property to a developer. They further pointed out that the property was then under contract with a new developer, but that insufficient time remained to comply with the commencement date. Thereafter, by a 5-0 vote, the County denied the NOPC. Although the reasons for the denial were not clear, the minutes of the meeting reflect that one Board member's decision was based on the fact that he was unhappy with the "proposed densities" of the project. Likewise, a second member concluded that "the densities are currently too high" and that "there has not been substantial proceeding on the project." A third member also concluded that the applicant had not "proceeded with the development." No reasons were given by the other two members. Excusable delay was mentioned by only one member, but the minutes do not reflect that excusable delay was a consideration in that member's vote. It is also fair to infer that at least some of the Board members were unhappy with the earlier decision approving the PUD in 1991, a decision made when the Board had a mostly different member composition. A formal order memorializing the Board's decision was never prepared. Relying on the minutes of the meeting as the "order," on November 6, 2000, or within 45 days, Petitioners filed their Petition for Appeal of a Development Order with the Florida Land and Water Adjudicatory Commission (Commission). Because Petitioners contended that the Board hearing was neither fair nor complete, they requested that the instant proceeding be conducted de novo, rather than simply a review of the record below. Criteria for an extension and the Board's past practice Section V of the DO provides the only criteria for granting an extension. That provision reads in relevant part as follows: [The expiration date] may be extended on Lake County's finding of excusable delay, and no adverse impacts resulting from the delay, in any proposed development activity, consistent with the substantial deviation provisions of subsection 380.06(19), Florida Statutes. The County has no other criteria defining the standards to be used in determining whether "excusable delay" has been shown by an applicant. Indeed, its Comprehensive Plan and Land Development Regulations do not contain any definitions or criteria. Further, the Board has never made any express findings on excusable delay or stated any criteria for determining it in any amended development orders resulting from extensions granted in other cases. At the same time, there are no standards enuciated in Chapter 380, Florida Statutes, nor are there any rules on the subject. A request for an extension of the build-out and commencement dates of a development order is subject to review by the DCA and the regional planning council under the substantial deviation provisions of Subsection 380.06(19), Florida Statutes. However, if as here, the proposed request is for an extension of one day less than five years, it is conclusively not a substantial deviation under the statute. For this reason, the practice of the DCA and ECFRPC has been to grant such extensions automatically. The Board has approved extensions of various deadlines in four DRIs over the seven years before the current request was heard by the Board. There is no evidence that the Board has ever denied such a request. Based on this consistent practice, Petitioners reasonably inferred in 1999 that obtaining the Board's approval of their request would be routine. On October 26, 1993, the Board approved a 54-month extension for the Monterey/Royal Highlands DRI (Monterey). In that case, the original owner (and applicant for an extension) had sold the property to a new developer but then had to foreclose on it when the buyer defaulted and went bankrupt. Because of the automatic stay under the Bankruptcy Code, the original owner could not re-obtain or exercise any control over the property until the conclusion of bankruptcy proceedings. In its approval, the Board recited the bankruptcy as the reason for no construction having been undertaken yet, but made no mention of excusable delay. In another case in 1994 involving the Plantation at Leesburg DRI (Plantation), the Board granted a request for an extension of one day less than five years. While the DRI admittedly did not include any language requiring a showing of excusable delay, the minutes of the meeting reflect no discussion of any standard for granting an extension. The staff report did note, however, that the project was vested and that the request was not a substantial deviation, even though it included a revision of the master plan of the DRI. In 1997, the Board granted an extension for the Southlake Florida Quality Development (Southlake), which was subject to requirements similar to those for DRIs. There, without any mention of excusable delay, the Board approved a staff recommendation that a 10-year extension be granted for the purpose of "allow[ing] for continuation and completion of the project on a more realistic basis" than originally proposed. Like the Monterey and Plantation extensions, the Board did not employ any stated standard in reaching its decision on the Southlake extension. In March 2000, the Board approved an extension for the Pennbrooke Fairways DRI (Pennbrooke), a project which had already constructed some 400 units, a golf course, and other amenities. The Pennbrooke development order contained an "excusable delay" standard almost identical to the one in issue here. In recommending approval of an extension of five years less a day, the staff noted that the project was vested, that the request was for a nonsubstantial amendment, and that the developer was requesting the extension because of "changing economic and other conditions." The recommendation was accepted, but the minutes of the meeting do not reflect that there was any discussion of the merits of the requested extension or any mention of excusable delay. In each of the four cases, either the minutes or the staff reports emphasized that the requested extensions were nonsubstantial amendments to the original approvals, and some mention is made of the fact that the projects were vested, though without explanation of the weight given that factor, or any other. In three of the four cases, the requested extension was for less than five years (while the fourth was for ten). Although three of the four development orders include an excusable delay standard, all four cases omit any findings on excusable delay or any other standard for an extension. Admittedly, some development had taken place in three of the four cases, but the County concedes it had not reached the level specified in the development orders, and there is no indication in the record that the County relied on this fact in determining whether to grant an extension. Finally, even though none of the cases makes clear the Board's basis for approving an extension, in two cases the reason given by the applicant was lack of control over the property due to bankruptcy, in another case the applicant cited the need for a more realistic schedule for construction, and in the remaining case the applicant cited "the other changing economic and other conditions." Although the County's practice in granting extensions, and denying this one, has not been clear and consistent, it does show that before the instant decision the standard was not strict and the bar was not high. Indeed, the County generally took into account a project's vested status and the finding of the state agencies that a request was not a substantial deviation. The Board never made findings on excusable delay and never formulated or followed any criteria for determining it. Nor did the Board consider whether adverse impacts would result from the delay, or whether circumstances had changed enough to warrant further review, as specified by the standard in each development order. The applicant's excusable delay. Although Petitioners did not begin construction within five years of obtaining the DO, they did make an effort to implement the DO but were unable to do so at once, for two reasons. First, the health of the principal owner and leader of the group, W. T. Cox, Jr., had grown increasingly impaired during 1996, the first year under the DO, impeding communications and decision-making in the group. Second, through discussions with County officials, the owners learned that they had insufficient resources to carry out the development by themselves. They then concluded that they must market the property so as to attract a joint venturer who could bring substantially more financial resources and development experience to the venture, or to sell the property outright to a large development company with the necessary resources. The leader of the group from its inception was Mr. Cox, who had approached Mr. Karick Price (the owner of 500 acres) with the original idea for the development. Mr. Cox had substantial development experience and access to financial resources. However, at about the same time the DO became effective in late 1995, Mr. Cox's health began to deteriorate, along with his ability to conduct business. In 1996, he suffered a stroke, and his condition worsened. In 1997, it became necessary for Mr. Cox to rely almost exclusively on a local attorney, Phillip Tatich, to assist him in his work activities. Mr. Tatich was later appointed a co-trustee of Mr. Cox's living trust in February 1998, after which he took over Mr. Cox's responsibilities in the group. During those same two years after the effective date of the DO, Mr. Price's health also deteriorated (due to multiple sclerosis), and his son Steven was asked to take over the responsibility for the family's interests in the DRI. Although Steven Price is an attorney, he does not specialize in land use or have experience in developing property. Consequently, he deferred to Mr. Cox, whose own health was on the decline. After Mr. Tatich became co-trustee for Mr. Cox in early 1998, he began to familiarize himself with the various properties in Mr. Cox's portfolio. By July 1998, Mr. Tatich was fully knowledgeable about the requirements of the DO and the options available to Petitioners. Despite the health problems with Mr. Cox, during 1996 and 1997, the owners were not idle. First, in early 1996 they negotiated an agreement with the DCA which clarified the meaning of several requirements in the DO. They also attempted to complete the sale of the property to a Euro- Canadian group of investors. After that deal fell through, Petitioners began to negotiate with the Barclay group, which resulted in a signed contract, but did not lead to a closing. At about the same time, a DRI expert advised Petitioners about the DO's requirements for capital improvements, the lack of clarity about the extent of those requirements, and the need for prompt action to meet the commencement date. Based on the expert's report, Petitioners decided that they had to focus their efforts on marketing the property, or to sell the property to a developer who could make use of the DRI entitlements. Given the proximity of the commencement date, Petitioners elected to market the property, hoping to attract a joint venturer to provide the experience and funding they lacked. In September 1997, Petitioners signed a formal listing agreement with Realvest Partners, Inc. (Realvest), a Maitland, Florida firm that specializes in appraising and developing large tracts of land for development purposes. Realvest did everything reasonable to market the property. Among other things, the listing broker (Mr. Ruoff) persuaded a number of other landowners to agree to an assemblage of their properties with the Sugarloaf property, for purposes of marketing an even larger tract (4,000 acres) that would have direct access to the Florida Turnpike and adjoin the city limits of Minneola and Clermont. Mr. Ruoff met more than 100 times with prospective buyers and showed the property at least 50 times over the two years that he marketed the property. This work generated a number of offers, including offers from Arvida and the Del Webb Corporation, each of which had the resources to develop such a large tract of property. Although each company came close to reaching a signed contract with the owners of the assemblage, both deals fell through because of the unreasonable demands of one of the assemblage owners (not a Petitioner). Neither company was willing to purchase the Sugarloaf property by itself, primarily because of its lack of access to major roads. Despite these failures, Petitioners continued to search for a buyer for the Sugarloaf property, and they negotiated with several other groups. After 6 to 8 months of negotiations, the Groner-Reaves group (in which Arnold Palmer is associated) signed a purchase contract in June 2000, which remains pending until this proceeding is concluded. Although the County witness asserted that the property was "unsalable," the owners were not responsible for that characteristic of the property, and they did all that they could do to sell their property alone and in an assemblage. As noted above, they eventually succeeded in securing a purchase contract. The unsalability of the property confirms the fact that a delay in selling the property was beyond Petitioners' control and thus excusable. Petitioners' decision not to start construction was reasonable even after Mr. Tatich joined the group as Mr. Cox's trustee. This is because in February 1998, he lacked the knowledge to make a sensible recommendation. After learning of the DO's requirements, he concurred in the owners' previous conclusion that without Mr. Cox, the other group members lacked the resources and experience to substantially proceed with construction on their own. In addition, even assuming that Petitioners could have mustered the enormous amount of resources required just to proceed with construction and meet the commencement date, starting construction would have established a particular pattern of development that could have clashed with the plans of some prospective purchasers in what was already a very narrow market. In summary, the delay in development activity was excusable due to the health impairment of Mr. Cox, the lack of financial resources and development experience of the other owners, the complexity of the DO and the unusual capital costs associated with the DRI, and the difficult marketing conditions for the property. All of these reasons exemplify factors beyond the control of the owners, and some of them were unforseen. No adverse impacts Petitioners also demonstrated that no adverse impacts would result from the delay. The request changes no substantive condition of the DO and generates no new impact of any kind. Also, Petitioners rebutted the County's own contrary evidence on this issue. At the hearing, the County speculated that the delay might cause a potential adverse impact on the nearby roads by delaying the time when the owners would have to pay for the expensive offsite road improvements on County Roads 561, 561A, and 455, as well as for a Turnpike interchange. The County reasoned that while the development is continuing in the surrounding area, traffic generated by such offsite development is increasing and could possibly exceed the established level of service for each of those roads before Sugarloaf makes the improvements. Petitioners established that the County's concern was no more than speculation and that the roads in question have more than enough capacity to absorb growth well above the combined current rate in the area and proposed buildout for Phase I of 660 houses over the next five years. Moreover, whatever impacts have occurred in the past five years are not attributable to Sugarloaf, which has generated no traffic. Therefore, no adverse impacts will occur by virtue of granting the request.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Land and Water Adjudicatory Commission issue a final order approving Petitioners' Notice of Proposed Non-Substantial Change. DONE AND ENTERED this 25th day of July, 2001, in Tallahassee, Leon County, Florida. ___________________________________ DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (850) 488-9675, SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of July, 2001. COPIES FURNISHED: Donna Arduin, Secretary Florida Land and Water Adjudicatory Commission Office of the Governor Room 2105, The Capitol Tallahassee, Florida 32399-0001 Charles T. Canady, General Counsel Office of the Governor Room 209, The Capitol Tallahassee, Florida 32399-0001 Timothy A. Smith, Esquire Akerman, Senterfitt & Eidson, P.A. 255 South Orange Avenue, 17th Floor Orlando, Florida 32801-3414 Melanie N. Marsh, Esquire Post Office Box 7800 Tavares, Florida 32778-7800
The Issue At issue in this case is whether the Florida Land and Water Adjudicatory Commission (FLWAC) should grant the Petition to Amend the Boundaries of the Tomoka Community Development District filed on November 23, 2005 (Petition). The purpose of the Petition is to add 1,122 acres that were intended to be included in the Community Development District (CDD, or District) when it was created in October 2003 but were omitted through the inadvertent use of an erroneous legal description.
The Issue DOAH Case No. 04-0262: Whether Respondent, West Florida Landscaping & Landscaping, Inc. ("West Florida Landscaping"), owes Petitioner, South Florida Sod, Inc. ("South Florida Sod"), $29,360.80 for the sale of sod during the months of July and August 2003. DOAH Case No. 04-0306: Whether Respondent, West Florida Landscaping, owes Petitioner, Bayside Sod, Inc. ("Bayside Sod"), $18,750.68 for the sale of sod during the month of October 2003.
Findings Of Fact Petitioners, South Florida Sod and Bayside Sod, are producers of agricultural products as defined by Subsection 604.15(5), Florida Statutes (2003). Both Petitioners grow and sell sod. South Florida Sod is located in Arcadia, Florida. Bayside Sod is located in Sarasota, Florida. Respondent, West Florida Landscaping, located in Plant City, Florida, is a dealer in agricultural products as defined by Subsection 604.15(1), Florida Statutes (2003). At the time of the transactions in question, West Florida Landscaping was licensed as a dealer in agricultural products supported by a surety bond provided by Old Republic Surety Company. West Florida Landscaping began purchasing sod from South Florida Sod in early 2003. The sod was purchased by a man named Dallas Justice. Bryant McCall, vice president of South Florida Sod, testified that Robert Owens, the owner of West Florida Landscaping, told him that Mr. Justice worked for him and would do the ordering for West Florida Landscaping. The initial purchases were cash transactions. At some point during the course of dealings, Mr. Owens contacted South Florida Sod to request a line of credit. Mr. Owens completed a credit application, and thereafter West Florida Landscaping purchased sod on credit. Mr. McCall testified that West Florida Landscaping was never a model credit customer. He had to "hound" West Florida Landscaping to pay its bill. However, up until July and August 2003, West Florida Landscaping always paid the bill, though often well after payment was due. From July 11 through August 27, 2003, Mr. Justice placed 43 orders for sod with South Florida Sod in the name of West Florida Landscaping. The sod was picked up at South Florida Sod's place of business by truckers sent by Mr. Justice. The total price for all these orders was $29,360.80. Invoices for each of these orders were sent to West Florida Landscaping, which neither paid them nor disputed their validity. Mr. McCall contacted Mr. Owens about payment of the invoices. Mr. McCall testified that Mr. Owens stated that he had been out of town during the period of the unpaid invoices. Mr. Owens told Mr. McCall that upon returning, he discovered that Mr. Justice was defrauding him. Mr. Justice was ordering the sod and completing the work for West Florida Landscaping projects, but was also collecting the customers' payments and keeping the money for himself. Mr. Owens did not fire Mr. Justice or turn him over to law enforcement authorities because he wanted Mr. Justice to work off the debt. Mr. Owens promised Mr. McCall that he would make good on the debts incurred by Mr. Justice with South Florida Sod. Mr. McCall testified that a payment schedule was established, but that Mr. Owens did not observe it, forcing South Florida Sod to file a Producer Complaint. As of December 5, 2003, the balance owed South Florida Sod by West Florida Landscaping was $29,360.80. West Florida Landscaping began purchasing sod from Bayside Sod on a cash basis sometime in the middle of 2003. A man named "Gene," later identified as Dallas Justice, ordered the sod on behalf of West Florida Landscaping. Bayside Sod sold 11 truckloads of sod to Mr. Justice and was paid cash. On October 1, 2003, Bayside Sod first extended credit to Mr. Justice at his request. Between October 2 and October 22, 2003, Mr. Justice took delivery of 23 orders for various amounts of sod worth $18,750, with Florida sales tax. None of these deliveries was paid for by Mr. Justice or West Florida Landscaping. Paul Bispham, owner and president of Bayside Sod, testified that he spoke with Mr. Owens on December 13, 2003. Mr. Owens assured Mr. Bispham that he and Mr. Justice would pay the debt. Benjamin Strong is a field superintendent for Trent Colony Landscaping. He gave West Florida Landscaping's name to Mr. Bispham as a reference when the latter contacted him to solicit new business. Mr. Strong had done business with Mr. Justice and West Florida Landscaping. His practice was to make out checks to West Florida Landscaping and give the checks to Mr. Justice. Mr. Strong testified that Mr. Owens later told him emphatically not to give any West Florida Landscaping checks to Mr. Justice. At the hearing, Mr. Owens denied that Mr. Justice was ever an employee of West Florida Landscaping. Rather, Mr. Justice was an independent contractor whom Mr. Owens would hire on a per-job basis to lay sod. However, Mr. Owens admitted that he gave Mr. Justice authority to order sod for West Florida Landscaping, thus mooting the significance of Mr. Justice's status as an employee or independent contractor. Mr. Owens further admitted that he signed the letter seeking a line of credit from South Florida Sod. Mr. Owens testified that he was in New Orleans for an extended period. While Mr. Owens was gone, Mr. Justice began ordering sod for jobs of his own, but had the purchases billed to West Florida Landscaping. Mr. Owens testified that he has paid for any sod that Mr. Justice ordered for West Florida Landscaping projects, but that he believed himself under no obligation to pay for sod that Mr. Justice ordered for his own jobs. He discovered, belatedly, that Mr. Justice was "a liar and a cheat." Mr. McCall credibly testified that Mr. Owens said nothing to him about Mr. Justice having used West Florida Landscaping's name to fraudulently obtain sod. Rather, Mr. Owens told him that Mr. Justice was, in Mr. Owens' absence, completing West Florida Landscaping jobs, but then cashing the checks made out to West Florida Landscaping and pocketing the money. This testimony is consistent with that of Mr. Strong and is credited. Mr. Owens admitted to making some efforts to deduct money from Mr. Justice's pay in order to settle the debts with South Florida Sod, but stated that he did not feel a legal obligation to do so. Mr. Justice was subpoenaed to appear and testify at the hearing in this matter, but he did not appear. By the weight of the evidence and by his own admission, Mr. Owens authorized Mr. Justice to order sod on behalf of West Florida Landscaping. The evidence established that a course of dealing was established between Mr. Justice, on behalf of West Florida Landscaping, and the Petitioners in these cases, whereby Mr. Justice would order and take delivery of the sod from the Petitioners, and West Florida Landscaping would pay the invoices for the sod. The greater weight of the evidence is that Mr. Justice was acting on behalf of West Florida Landscaping in all his dealings with South Florida Sod and Bayside Sod. In light of the established course of dealing, West Florida Landscaping failed to establish any reasonable basis for its contention that South Florida Sod and Bayside Sod should have inquired as to Mr. Justice's continuing authority on each occasion that he ordered their sod. Mr. Owens' testimony that the sod ordered by Mr. Justice from South Florida Sod and Bayside Sod was not for West Florida Landscaping jobs cannot be credited based on the testimony of other witnesses and Mr. Owens' own actions subsequent to learning these suppliers had not been paid. While there is no question that Mr. Justice was the actual wrongdoer in these cases, there is also no question that it was West Florida Landscaping that lent the name of its legitimate business to Mr. Justice and, thus, enabled him to defraud South Florida Sod and Bayside Sod.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order ordering Respondent, West Florida Irrigation & Landscaping, Inc., to pay $29,360.80 to South Florida Sod, Inc., and $18,750.68 to Bayside Sod, Inc., together with pre-judgment interest calculated at the rate specified in Section 55.03, Florida Statutes (2003); and further requiring Old Republic Surety Company to make payment, up to the amount of its bond, in the event that West Florida Irrigation & Landscaping, Inc., fails to make payment in a timely manner. DONE AND ENTERED this 1st day of March, 2005, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of March, 2005.
The Issue The issue before the Florida Land and Water Adjudicatory Commission (FLWAC) in this proceeding is whether the Petition to Establish the Myakka Ranch Community Development District (Petition) meets the criteria set forth in Chapter 190, Florida Statutes, and Chapter 42-1, Florida Administrative Code. The local public hearing was for the purpose of gathering information in anticipation of quasi-legislative rulemaking by FLWAC.
The Issue The issues to be addressed are whether the Petition to establish the District meets the factors set forth in Section 190.005, Florida Statutes, and whether the hearing process has been conducted in accordance with the requirements of Section 190.005, Florida Statutes, and Florida Administrative Code Chapter 42-1.
