The Issue The issue is whether the Petition to Contract the Boundary of the Capital Region Community Development District (Petition) meets the applicable criteria set forth in Chapter 190, Florida Statutes (2006)1, and Florida Administrative Code Rule Chapter 42-1. The purpose of the hearing was to gather information in anticipation of quasi-legislative rulemaking by the Florida Land and Water Adjudicatory Commission (Commission).
The Issue The issue in this case is whether Town of Yankeetown (Town) plan amendment 08-01 (adopted by Ordinance 2007-10) and plan amendment 08-CIE1 (adopted by Ordinance 2008-03), as modified by remedial amendment 09-R1 (adopted by Ordinance 2009-02) (together, referred to as the Plan Amendments or the Revised Comprehensive Plan), are "in compliance" as defined in Section 163.3184(1)(b), Florida Statutes (2009).1
Findings Of Fact The Town is located in the southwest corner of Levy County. The Town is bounded on the east by the Town of Inglis, on the north by unincorporated Levy County, on the west by the Gulf of Mexico, and on the south by the Withlacoochee River. The Town has significant planning challenges due to its geographic location. The maximum elevation in the Town is 10 feet, and the entire Town is located in the 100-year floodplain and Coastal High Hazard Area (CHHA). The Town is located in a rural area north of the banks of the Withlacoochee River and is surrounded by wetlands and environmentally-sensitive land. The Town is located at the end of County Road 40, and is separated from the nearest intersection of major roads (State/County Road 40 and U.S. 19) by the Town of Inglis. The Plan Amendments are a community-generated plan that incorporates the results of an extensive community visioning survey conducted by the Town and numerous public meetings that exceeded the public participation requirements for plan amendments contained in Florida Administrative Code Rule Chapter 9J-53 and Chapter 163, Florida Statutes. The Plan Amendments resulted in a Revised Comprehensive Plan for the Town. IWI is a legal entity that owns land within the Town and submitted oral or written comments on the Plan Amendments during the period of time beginning with the transmittal hearing for the Plan Amendments and ending with the adoption of the Plan Amendments. IWI contends that the Plan Amendments are not "in compliance" for several reasons. Population Projections and Need In its pleadings, IWI contended that "[t]here is inadequate data regarding projected population growth and the infrastructure needed to support the projected population growth for both the short term (five years) and the long term (horizon of the plan)"; "[t]he Plan Amendment is not in compliance with [Section] 163.3177(6)(a) Florida Statutes, by failing to provide future land use categories that are based on need"; and "[t]he Plan Amendment is not in compliance with the requirements of 9J- 5.006, Florida Administrative Code, demonstrating that future land use is based on need." Prehearing Stipulation § 2.H., U., and GG. However, its expert planning witness, Gail Easely, conceded that the data and analysis submitted by the Town was adequate to demonstrate that the residential land uses in the Revised Comprehensive Plan are based on need. IWI limited its contention on this point to the alleged inadequacy of the data and analysis to support the Revised Comprehensive Plan's new Light Industrial land use and revised commercial land use designations. The Revised Comprehensive Plan designates the same areas for commercial as the currently effective Comprehensive Plan, with the exception of one parcel that was changed from commercial to Light Industrial. The Revised Comprehensive Plan designates the commercial parcels near the Withlacoochee River as Commercial Water Dependent and the other commercial parcels as Commercial Neighborhood, totaling approximately 51 acres. Of the 51 acres of commercially-designated land, approximately 26 acres are currently developed and 25 acres are vacant and undeveloped. Of the 26 developed commercial acres, 19 parcels are currently developed and utilized as residential. There is no shortage of land available for commercial development in the Town. Inglis, a town located adjacent and to the east of Yankeetown, and Levy County near Yankeetown provide "more than adequate" existing commercial buildings on the market to serve the residents of Yankeetown and surplus vacant commercially- designated land to serve the future needs of Yankeetown. There is no shortage of commercial potential near the Town. The evidence was that it is acceptable for a local government to plan for the future need for the availability of commercial and industrial lands by maintaining the existing proportionate of availability of land use categories. Alternatively, it is acceptable to plan to mimic the proportions found to exist in other communities. This is essentially how the Town planned its allocation of commercial and industrial lands in its Revised Comprehensive Plan. IWI also contended that the intensity standards for commercial and industrial land uses in the Revised Comprehensive Plan unduly restrict commercial development. The existing Comprehensive Plan did not have explicit intensity standards and criteria for commercial land uses. After extensive debate at numerous public hearings, the Revised Comprehensive Plan established a floor/area ration (FAR) of 0.07, which limits the size for each single structure to a maximum of 3,000 square feet. It also allows for multiple 3,000 square foot structures on larger parcels in a "campus style" development. These standards and criteria reflect the existing, built environment of the Town and the Town's vision of itself. Existing commercial buildings run from 960 square feet to 3,600 square feet. Although the existing Comprehensive Plan did not have an FAR ratio, other standards--such as setbacks, square footage required for on-site septic tanks, drainfields, and parking, a 50 percent open space ratio, and a building height restriction of 35 feet--restricted commercial development in a manner similar to the Revised Comprehensive Plan. Petitioner's expert economist, Dr. Fishkind, testified that the restrictions on intensity of commercial land uses are not financially feasible because not enough revenue can be generated to make a profit, given the cost of land in Yankeetown. His testimony was refuted by his University of Florida colleague, Dr. James Nicholas, who was called as an expert economist for the Town. Dr. Nicholas pointed out that there was some commercial use in the Town and that economics would lower the cost of land in the Town if it is too expensive to allow the kind of commerce desired by the Town to make a reasonable profit. Businesses requiring more space to make sufficient revenue could locate outside the Town but close enough in Inglis or Levy County to serve Yankeetown as well. The character of the Town, its limited projected population growth, and the availability of commercial development nearby in Inglis and in Levy County all support the Town's decision to limit the intensity of commercial land use, and to maintain the existing amount of land available for commercial and light industrial uses. 15. Rules 9J-5.006(1)(a)(3) and 9J-5.006 (4)(a)(3) require the designation of some industrial lands, and the Revised Comprehensive Plan changes the designation of six acres of land located to the west of the intersection of County Roads 40 and 40-A from "Commercial" to "Light Industrial." Since industrial uses are generally not compatible with residential uses, the Light Industrial parcel is separated from residential parcels by commercial. The Light Industrial parcel is allocated for more intense commercial uses (such as fishing trap and boat storage) or reserved for economic development of light industrial uses that may wish to locate in Yankeetown, such as aquaculture. The existing ratio of residential to commercial land is adequate to supply the existing need as reflected by the existing surplus, vacant, and unused commercial lands. The Plan Amendments maintain residential lands and commercial lands in their general designations with refinements to the categories. The existing ratio and availability of vacant commercial land indicate that there is no deficit in any category, and maintaining the existing residential/commercial ratio preserves the existing character of the Town. Urban Service Area versus Urban Service Boundary IWI contends that "[t]he Plan Amendment is not in compliance with [Section] 163.3177(14), Florida Statutes, by failing to ensure that the urban service boundary was appropriately adopted and based on demonstrated need." This contention has no merit. Section 163.3177(14), Florida Statutes, encourages a local government to adopt an "urban service boundary." If one is adopted, there must be a demonstration "that the amount of land within the urban service boundary does not exceed the amount of land needed to accommodate the projected population growth at densities consistent with the adopted comprehensive plan within the 10-year planning timeframe." If a local government chooses to adopt an "urban service boundary" under Section 163.3177(14) and a community vision under Section 163.3177(13), Florida Statutes, it may adopt plan amendments within the urban service boundary without state or regional agency review. See § 163.3184(17), Fla. Stat. The Revised Comprehensive Plan does not use the term "urban service boundary," and the Town did not intend to adopt one under Section 163.3177(14), Florida Statutes, nor did it seek to avoid state and regional agency review of plan amendments under Section 163.3184(17), Florida Statutes. Instead, as explained on page 6 of the Revised Comprehensive Plan, it uses the term "urban area" to designate an area allowed to receive development rights from the sending area, namely the Residential Environmentally Sensitive (formerly Conservation) land use district. The Revised Comprehensive Plan uses the term urban service "area" (rather than "boundary") as the area located generally between County Roads 40 and 40-A that can receive development rights transferred from the Residential Environmentally Sensitive land use district. This area is depicted as "Urban Service Area Overlay Zones" Map 2008-02 of the Future Land Use Map (FLUM) series to more clearly designate the area on a larger scale than the FLUM map of the entire Town (Map 2008-05). The existing FLUM series also used the term "urban area" to depict the transfer of development rights receiving area. Financial Feasibility and Capital Improvements IWI’s expert, Dr. Henry Fishkind, testified that he ran his Fiscal Impact Analysis Model for the Town and concluded that the Revised Comprehensive Plan is not financially feasible because the Town cannot generate sufficient operating revenue to cover its operating costs without increasing property tax rates. Dr. Fishkind was not asked to explain how his computer model works, give any specific modeling results, or explain how he reached his conclusion. The Town's expert, Dr. James Nicholas, refuted his University of Florida colleague's testimony on this point as well. Essentially, Dr. Nicholas testified that a small and unique community like Yankeetown can choose to limit its operating costs by relying on volunteers and part-time employees. In this way, it can operate on a bare-bones budget that would starve a more typical and larger community. It also could choose to increase property tax rates, if necessary. Recent amendments to Chapter 163, Florida Statutes, in Senate Bill 360, the "Community Renewal Act," which became effective June 1, 2009, postponed and extended until December 1, 2011, the statutory requirement to maintain the financial feasibility of the five-year capital improvements schedule (CIS) for potable water, wastewater, drainage, parks, solid waste, public schools, and water supply. However, the Town concurred with Petitioner in requesting findings of fact and conclusions of law on this issue in case Senate Bill 360 is struck down in a pending constitutional challenge. The Plan Amendments include a CIE (Chapter 8) with a five-year CIS and a table to identify sources of revenue and capital projects sufficient to achieve and maintain the adopted levels of service, supported by data and analysis submitted with the Remedial Amendments. The Town's CIS five-year lists projects to achieve and maintain the adopted level of service (LOS) standards and identifies funding sources to pay for those projects. It describes the projects and conservatively projects costs and revenue sources. The CIS identifies revenue sources and capital projects for which there are committed funds in the first three years and identifies capital projects for which funds have not yet been committed in year four or year five. CIS is adequate to achieve and maintain the adopted level of service and is financially feasible. Stormwater and Drainage A drainage LOS is adopted in Revised Comprehensive Plan Policy 4.1.2.1, which states: "All new development and expansion of existing residential development greater than 300 square feet of additional impervious coverage shall meet requirements under Chapter 62-25, F.A.C. for Outstanding Florida Waters." The exemption of minor residential improvements of 300 square feet or less is reasonable and does not violate Rule Chapter 9J-5 or Chapter 163, Florida Statutes. The Department's ability to require retrofitting for existing drainage problems is limited by Rule Chapter 9J- 5.011(2)(c)5.b.i., which states that the Rule "shall not be interpreted or applied to [m]andate that local governments require existing facilities to be retrofitted to meet stormwater discharge water quality standards or stormwater management level of service standards." Nonetheless, the Town agreed in the Compliance Agreement to adopt appropriate policies and provide additional data and analysis on this issue. Policy 4.1.2.13 requires that the "Established Storm Water Drainage Committee shall monitor storm water facilities in [the] town, oversee maintenance functions, and evaluate and recommend capital improvements projects and funding sources." To pay for stormwater capital improvement projects, Policy 4.1.2.14 in the Plan Amendments states: "Yankeetown shall adopt a storm water utility fee ordinance and establish storm water utility fees by December 31, 2009 to provide necessary funding for capital improvements to the Town's storm water drainage facilities and maintenance of storm water drainage facilities." In accordance with the Compliance Agreement, the Town modified CIS Table 1 by adding $120,000 to FY 2011-2012 (Year 5) for the stormwater drainage improvement project and adding Note 5 to Table 1, which states: "Anticipated to be funded by a 75%/25% matching grant from SWFWMD, DEP or DCA. The matching (town) funds will be obtained from the proposed stormwater improvement fund. If no grants can be obtained and the stormwater improvement fund is not approved[,] the project will be funded from the general fund reserves and long term loans." Because the stormwater utility fee ordinance must still be adopted, and these funds are not technically committed at the time of adoption of the Plan Amendments, the stormwater capital improvement project was placed in year 5 (2011-1012) of the CIS. As funding becomes available and committed, the project may be moved to an earlier year in required annual updates to the CIS. Drainage also is addressed in new Objective 4.3.2 and in new Policies 4.3.2.1. through 4.3.2.5. The Town has addressed stormwater and drainage appropriately in the Revised Comprehensive Plan. Proportionate Share and Concurrency Management Policy 4.1.2.6 in the Public Facilities Element states: "The Town shall consider, and adopt as appropriate, a means to ensure that new development shares proportionate responsibilities in the provision of facilities and services to meet the needs of that development and maintain adopted level of service standards." Policy 8.1.3.4 in the CIE of the Revised Comprehensive Plan states: The Town shall consider, and adopt as appropriate, a means to ensure that new development shares a proportionate cost on a pro rata basis in the provision of facilities and services necessitated by that development in order to maintain the Town’s adopted level of service standards. Proportionate costs shall be based upon, but not limited to: Cost for extension of water mains, including connection fees. Costs for all circulation and right-of-way related improvements to accommodate the development for local roads not maintained by Levy County. Costs to maintain County Road 40 and 40[-]A and any other road within the town that are maintained by Levy County shall be governed by the Levy County Proportionate Share Ordinance and Yankeetown will continue to adopt and ensure the level of service is maintained [through] coordination mechanisms between the two planning departments. Costs for drainage improvements. Costs for recreational facilities, open space provision, fire protection, police services, and stormwater management. Although the Town does not have any public facility deficiencies, Rule Chapter 9J-5 requires that the CIE address "[t]he extent to which future development will bear a proportionate cost of facility improvements necessitated by the development in order to adequately maintain adopted level of service standards"; and include a policy that addresses programs and activities for "[a]ssessing new developments a pro rata share of the costs necessary to finance public facility improvements necessitated by development in order to adequately maintain adopted level of service standards . . . ." Fla. Admin. Code R. 9J-5.016(3)(b)4. and (c)8. Policy 8.1.3.4 meets this requirement. The statute forming the basis of IWI’s contentions regarding proportionate fair share is Section 163.3180(16)(a), Florida Statutes, which requires local governments "to adopt by ordinance a methodology for assessing proportionate fair-share mitigation options." The evidence was that the requirements of this statute will be met by the Town's Proportionate Fair Share Concurrency Management Ordinance, which had been drafted and scheduled for adoption hearings at the time of the final hearing, and which will implement Policy 8.1.3.4. IWI did not present any evidence regarding the alleged lack of a concurrency management system in the Revised Comprehensive Plan and did not prove that the Revised Comprehensive Plan fails to meet the requirements of Rule 9J- 5.055 for concurrency management. The Town is exempt from maintaining school concurrency requirements. Objective 8.1.3 and Policies 8.1.3.1 through 8.1.3.6 of the Revised Comprehensive Plan meet the requirements of Rule 9J-5.055 for concurrency management. Policy 8.1.3.6 states: "The Town shall evaluate public facility demands by new development or redevelopment on a project by project basis to assure that capital facilities are provided concurrent with development." Policy 8.1.3.3 states: "The Yankeetown Land Development Code shall contain provisions to ensure that development orders are not issued for development activities which degrade the level of service below the adopted standard as identified in each comprehensive plan element. Such provisions may allow for provision of facilities and services in phases, so long as such facilities and services are provided concurrent with the impacts of development." The Town has a checklist system to track the specific impact of each development order on LOS concurrent with development. As indicated, a Proportionate Fair Share and Concurrency Management Ordinance had been drafted and scheduled for adoption hearings. Wastewater Treatment and Water Quality The Town is located entirely within the 100-year floodplain and coastal high hazard area. See Finding 2, supra. This presents challenges for wastewater treatment. The adoption of the Revised Comprehensive Plan followed public meetings and workshops held with representatives of DCA, including Richard Deadman, and expert Mark Hooks, formerly with the State of Florida Department of Health and Rehabilitative Services and now with the State of Florida Department of Health. The Plan Amendments include Policy 8.1.3.1.1, which states in part: Due to the location of the town within the 100 year flood plain and within the Coastal High Hazard Area (CHHA), there are no plans to provide central wastewater treatment until a regional system can be developed in conjunction with the neighboring town of Inglis and Levy County, and constructed outside the Coastal High Hazard Area east of U.S. Highway 19. In the interim period before a regional central wastewater system is available, the Town shall require in all land use districts: a. Yankeetown shall develop a strategy to participate in water quality monitoring of the Withlacoochee River; b. develop an educational program to encourage inspection (and pump-out if needed) of existing septic tanks; c. all new and replacement septic tanks shall meet performance based standards (10mg/l nitrogen). The Town's approach to wastewater treatment under the circumstances is sound both economically and from planning perspective and is sufficient to protect natural and coastal resources, including water quality, and meet the minimum requirements of Rule Chapter 9J-5 and Chapter 163, Florida Statutes. There is direction in the State Comprehensive Plan to: "Avoid the expenditure of state funds that subsidize development in high-hazard coastal areas." § 187.201(8)(b)3., Fla. Stat. This direction is also found in Chapter 163.3178(1), Florida Statutes, and in Rule 9J-5.012(3)(b)5., which require local governments to limit public expenditures that would subsidize development in the CHHA. It also is impractical for the Town, with a population of 760 people, to fund and operate a central wastewater system. It is logical and economical to do this in partnership with the adjoining Town of Inglis and Levy County, which could share in the costs and provide a site for a regional wastewater facility located nearby but outside of the CHHA. In contrast, this approach was not a viable option for the entirety of the Florida Keys. The Town already has begun water quality testing under Policy 8.1.3.1.1.a. The Town will be required to prepare educational programs to encourage inspection of existing septic tanks (and pump-out, if needed) under Policy 8.1.3.1.1.b. and under new Policy 4.3.1.2. In the short-term, while the Town pursues a regional treatment facility located outside the CHHA, Policy 8.1.3.1.c. in the Revised Comprehensive Plan will be implemented by new Policy 4.1.2.1.IV.B., which states: Yankeetown shall require that all new or replacement sanitary sewage systems in all land use districts meet the following requirements: All new or replacement sanitary sewage systems shall be designed and constructed to minimize or eliminate infiltration of floodwaters into the system and discharge from the system into floodwaters. Joints between sewer drain components shall be sealed with caulking, plastic or rubber gaskets. Backflow preventers are required. All new or replacement sanitary sewage systems shall be located and constructed to minimize or eliminate damage to them and contamination from them during flooding. The DCA has objected and recommended, and Yankeetown has concurred that all new and replacement septic systems are to be performance-based certified to provide secondary treatment equivalent to 10 milligrams per liter maximum Nitrogen. Performance-based treatment systems that are accepted as achieving the 10 mg/l nitrogen standard have already been tested by the National Sanitation Foundation and approved by the State of Florida Department of Health. Performance-based systems achieving the 10 mg/l nitrogen standard have been certified and approved for use in Florida and are now available on the market "in the $7,200 range" for a typical two- or three-bedroom home, and there are systems that would meet the 10mg/l nitrogen standard for commercial and multi-family buildings. Compliance with the performance-based 10 mg/l nitrogen standard is measured at the treatment system, not in the receiving water, and additional nutrient removal and treatment occurs in the drainfield soils. Performance-based treatment systems also require an operating permit and routine inspection and maintenance, unlike conventional septic tanks. The United States Environmental Protection Agency stated in its 1997 report to Congress: "Adequately managed decentralized wastewater systems are a cost-effective and long- term option for meeting public health and water quality goals." The existing Comprehensive Plan addresses wastewater in Chapter 4, Policy 13-2, which states: "Prohibit the construction of new publicly funded facilities or facilities offered for maintenance in the coastal high hazard area (including roads, water, sewer, or other infrastructure)." It also is addressed in the existing Comprehensive Plan in: Chapter 1, Policies 3-1 and 3-2 (Vol. II p. 11); and Chapter 4, Policies 1-2-1 and 1-2-7 (Vol. II, pp. 32, 34). A more in-depth analysis of the Town's previous approach to wastewater treatment is found in Volume III, Infrastructure Element, pp. 107-109 ("Facility Capacity Analysis, Sanitary Sewer"), which expresses similar long-term and interim approaches to wastewater treatment. The Revised Comprehensive Plan removes confusing and out-of-date references to "class I or other DOH-approved aerobic systems" used in the existing Comprehensive Plan. The Plan Amendments contemplate that the Town will pursue a long-term solution of a regional wastewater facility with the Town of Inglis and Levy County to be located outside the CHHA. The Revised Comprehensive Plan is adequate to protect the natural resources in Yankeetown and includes a short-term requirement that all new and replacement septic tanks meet the 10 mg/l nitrogen standard measured at the performance-based treatment system, together with a long-term requirement that the Town pursue a regional wastewater treatment plant to be located outside the CHHA. The Plan Amendments include: Objective 4.1.3; Policies 4.1.3.1 through 4.1.3.3 and 4.1.2.8 through 4.1.2.11; Policy 5.1.4.4; Policy 7.1.22.6; Policy 8.1.3.1; Policy 10.1.2.1; and Policy 10.1.2.3. These provisions move the Town in the direction of a regional central wastewater treatment located outside the CHHA and establish appropriate interim standards. Petitioner contended that the Town has allocated money for a new park when it needed a new central wastewater treatment facility. But the evidence was that the money for the new park came from a grant and could not be used for a new central wastewater treatment facility. Protection of Natural Resources and Internal Consistency The Future Land Use Element (FLUE) and the FLUM in the Revised Comprehensive Plan contain "Resource Protection" and "Residential Environmentally Sensitive" land use designations. In the existing Comprehensive Plan, these lands are designated Public Use Resource Protection and Conservation, respectively. The Plan Amendments reduce density in the Residential Environmentally Sensitive land use district, which contains a number of islands, to a maximum gross density of one dwelling unit per ten gross acres and maximum net density of one dwelling unit per five acres of uplands. Policy 1.1.2.1 in the Plan Amendments would allow development rights to be transferred from the Residential Environmentally Sensitive land to the development rights area receiving zone located between County Roads 40 and 40-A, as shown in Map 2008-02. The current Conservation designation for those lands sets a "maximum density of 1 unit per 5 acres"; and Policy 1-2 in the existing Comprehensive Plan allows the transfer of development rights within the Conservation district "as long as gross density does not exceed 1 dwelling unit per 5 acres." Under Policy 1-2 of the existing Comprehensive Plan, a minimum of "two (2) acres of uplands" is required for a development in the Conservation land use district. Likewise, under Policy 1.1.2.1.2 of the Plan Amendments, a minimum of "two (2) contiguous natural pre-development upland acres" is required in the Residential Environmentally Sensitive land use district. Although allowed, few if any transfers of development rights actually occurred under the existing Comprehensive Plan. To provide additional incentive to transfer development out of the "Residential Environmentally Sensitive" land use district and into the urban receiving area, Policy 1.1.2.7.F. of the Plan Amendments would allow the land owner to retain private ownership and passive recreational use on the "sending" parcel, including one boat dock. All other development rights on the sending parcel would be extinguished. Besides facilitating the transfer of development rights, it is expected that use of boat docks on the islands will decrease environmental damage from boats now grounding to obtain access to the islands. Although the policies for Environmentally Sensitive Residential and Conservation Lands are slightly different, the minor differences do not fail to protect natural or coastal resources or fail to meet the minimum criteria set forth in Rule Chapter 9J-5 and Chapter 163, Florida Statutes. Numerous policies in the Plan Amendments establish standards and criteria to protect natural and coastal resources, including: Policy 1.1.2.1.7(i), restricting dredging; Policies 1.1.1.2.10, 5.1.5.7, and 5.1.6.10, restricting the filling of wetlands; Policy 5.1.6.7, establishing wetlands setback buffers; Policy 5.1.6.4, establishing nutrient buffers; Policy 5.1.5.1, limiting dredge and fill; Policies 1.1.3.4 and 5.1.5.5, establishing standards and criteria for docks and walkways; Policy 5.1.16.1, protecting certain native habitats as open space; Policy 1.1.1.3, establishing low-impact development practices for enhanced water quality protection; and Policy 5.1.5.1, protecting listed species, including manatees. These provisions are more protective than the provisions of the existing Comprehensive and are supported by data and analysis. The Plan Amendments acknowledge and protect private property rights and include Objective 1.1.11 (Determination and Protection of Property Rights), providing for vested rights and beneficial use determinations to address unintended or unforeseen consequences of the application of the Plan Amendments in cases where setbacks cannot be achieved for specific development proposals due to lot size or configuration. FLUE Policy 1.1.1.2.8 and Conservation and Coastal Management Element Policy 5.1.6.4 in the Plan Amendments sets out procedures, standards, and criteria (including mitigation) for variances from the 150- foot Nutrient Buffer Setback. Taken as a whole, the Plan Amendments protect natural and coastal resources within the Town. Internal Consistency Docks, Open Space, and Dredge and Fill IWI contends that the Plan Amendments are internally inconsistent because policies addressing docks, open space, and dredging requirements use different language and with different meanings in different contexts. Policies in the Revised Comprehensive Plan establish 100 percent open space requirements for certain natural habitats, namely: (a) submerged aquatic vegetation; (b) undisturbed salt marsh wetlands; (c) salt flats and salt ponds; (d) fresh water wetlands; (e) fresh water ponds; and (f) maritime coastal hammock. Pile-supported, non-habitable structures such as boat docks and walkways are allowed if sited on other portions of a site. (Conservation and Coastal Management Element Policies 5.1.5.7, 5.1.6.7, 5.1.6.10, and 5.1.16.1). Other policies limit dredging to maintenance dredging. Policy 5.1.5.1 states that the Town will: Prohibit all new dredge and fill activities, including construction of new canals, along the river and coastal areas. Maintenance dredging of existing canals, previously dredged channels, existing previously dredged marinas, and commercial and public boat launch ramps shall be allowed to depths previously dredged only when the applicant demonstrates that dredging activity will not contribute to water pollution or saltwater intrusion of the potable water supply. Applicant must also demonstrate that development activities shall not negatively impact water quality or manatee habitat. Maintenance dredging is prohibited within areas vegetated with established submerged grass beds except for maintenance dredging in public navigation channels. This prohibition does not preclude the minor dredging necessary to construct "pile supported structures such as docks and walkways that do not exceed 4’ in width and constructed in accordance with OFW and Aquatic Preserve regulations," which are specifically exempted and allowed by Policy 5.1.5.7 of the Plan Amendments. Additional dredging and filling activities (beyond installation of pile supports) would not be required for docks sited where adequate water depth exists. Docks and walkways allowed under Policy 5.1.5.7 are not counted as open space. The policies concerning docks and walkways can be reconciled and do not render the Plan Amendments internally inconsistent. Low-Impact Development Policies IWI also contends that policies in the Plan Amendments requiring and encouraging low-impact development (LID) practices (which are not required or mandated under minimum requirements of Rule Chapter 9J-5 F.A.C. and Chapter 163, Florida Statutes, but adopted for additional water quality protection) are internally inconsistent. The Plan Amendments require LID practices for some new uses (new subdivisions, planned unit developments, and commercial development) and encourage them for existing uses. The Plan Amendments require or encourage these practices in different land use districts, which address different commercial or residential uses, and also discuss these practices in different elements of the Revised Comprehensive Plan, which addresses different purposes and concerns, including the FLUE (Chapter 1), the Public Infrastructure Element (Chapter 4), and the Coastal Management Element (Chapter 5). FLUE Policy 1.1.1.3 states that: In addition to complying with Outstanding Florida Water (OFW) standards, all new subdivisions, planned unit developments, and commercial development in all land use districts shall utilize "low impact" development practices appropriate for such use including: Landscaped biofiltration swales; Use native plants adapted to soil, water and rainfall conditions; Minimize use of fertilizers and pesticides; Grease traps for restaurants; Recycle storm water by using pond water for irrigation of landscaping; Dry wells to capture runoff from roofs; Porous pavements; Maintain ponds to avoid exotic species invasions; Aerate tree root systems (for example, WANE systems); Vegetate onsite floodplain areas with native and/or Florida-friendly plants to provide habitat and wildlife corridors; Rain barrels and green roofs where feasible; and Use connected Best Management Practices (BMPs) (treatment trains flowing from one BMP into the next BMP) to increase nutrient removal. Existing development shall be encouraged, but not required to use the above recommendations and shall not be considered nonconforming if they do not. In the Residential Low Density land use district, FLUE Policy 1.1.2.2.5 states: "All (a) new planned unit residential developments or (b) new platted subdivisions of 2 or more units (construction of 1 single family dwelling unit or duplex is exempt) shall utilize 'low impact' development practices for storm water management. Individual dwelling units and duplexes are encouraged to utilize those 'low impact' development practices that may be required or recommended in the Land Development Regulations." In the Residential Highest Density land use district, FLUE Policy 1.1.2.3.3 states: "Existing platted parcels are encouraged to utilize site suitable storm water management such as connecting to swales where available. All (a) new planned unit residential developments or (b) new platted subdivisions of 2 or more units (construction of 1 single family dwelling unit or duplex is exempt) shall utilize 'low impact' development practices for storm water management. Individual dwelling units and duplexes are encouraged to utilize those 'low impact' practices that may be required or recommended in the Land Development Regulations." In the Resource Protection and Public Use land use districts, FLUE Policies 1.1.2.5 and 1.1.2.6. require LID practices for all development. In the Neighborhood Commercial land use district, FLUE Policy 1.1.2.7.6 requires LID practices for "all development." In the Commercial Water-Dependent land use districts, FLUE Policy 1.1.2.8.9 requires LID practices for "all new commercial development." In the Light Industrial land use district, FLUE Policy 1.1.2.9.2 requires LID practices for "all development." These policies can be reconciled. The use of slightly different language in a particular district, or creation of an exemption for existing uses, does not render the policies internally inconsistent. Policy 4.2.2.2 of the Public Infrastructure Element (Chapter 4) of the Plan Amendments requires the adoption of land development regulations (LDRs) establishing minimum design and construction standards for new subdivisions, planned unit developments, and commercial development that will ensure that post development runoff rates do not exceed predevelopment runoff rates and encourage the same LID practices set out in FLUE Policy 1.1.1.3. IWI also contends that the inclusion of the phrase "as appropriate for such use" in the LID policies is internally inconsistent. To the contrary, it acknowledges that some of the listed practices may not be appropriate for a proposed specific use. For example, subsection (d) on "grease traps for restaurants" would not be appropriate if no restaurant is proposed. Under Section 163.3202, Florida Statutes, the Town has a year to adopt implementing LDRs providing further details, standards, and criteria for low-impact development BMPs for specific uses and within specific districts. The use of the phrase "as appropriate for such use" in the low-impact development policies allows for the exercise of engineering discretion in formulating LDRs. It does not render the policies internally inconsistent. Setbacks and Variances IWI also contends that the Plan Amendments are internally inconsistent because buffers contain different setback distances and allow for a variance to the setback buffers. The policies addressing setbacks can be read together and reconciled. The Plan Amendments include two types of setback buffers adopted for different purposes: (1) for structures, a 50-foot setback from the river and wetlands in Policies 1.1.1.2.7 and 5.1.6.7; (2) for sources of nutrient pollution other than septic systems (such as fertilized and landscaped areas and livestock sources), a 150-foot nutrient buffer setback from the river in Policies 1.1.1.2.8 and 5.1.6.4; and (3) for septic systems, special setbacks in Policy 1.1.1.2.11 (which is referred to in the nutrient buffer setback policies). These different setback policies were adopted for different purposes and are not internally inconsistent. Data and analysis supporting the establishment of these different setbacks further explains the different purposes of the different types of setbacks adopted in the Revised Comprehensive Plan. The availability of variances to the 150-foot nutrient buffer setback allows some use on a parcel to ensure protection of private property rights in the event of an unforeseen taking of all use on a specific parcel where an applicant cannot meet the setback but can meet the listed criteria for a variance and provide the mitigation required for impacts. Protection of private property rights is a competing concern that must be addressed under Chapter 163, Florida Statutes, and Rule Chapter 9J-5. The Plan Amendments need not address every possible or potential set of facts and circumstances. Additional detail can be provided in implementing LDRs adopted under Section 163.3202, Florida Statutes. Specific implementation and interpretation of policies and LDRs applicable to any particular development proposal will be made by the Town during application review process. Seemingly inconsistent policies can be reconciled by applying the most stringent policy. Seemingly inconsistent policies also could be reconciled by application of a specific exemption, variance, or beneficial use determination. Site-specific application and interpretation of policies and LDRs in development orders, and issues as to their consistency with the goals, objectives, and policies of the Revised Comprehensive Plan, can be addressed under Section 163.3215, Florida Statutes. Small Local Governments IWI contends that the Town was not held to the same data and analysis standards under Section 163.3177(10)(i), Florida Statutes, as larger local governments. Under that statute and Rule 9J-5.002(2), the Department can consider the small size of the Town, as well as other factors, in determining the "detail of data, analyses, and the content of the goals, objectives, policies, and other graphic or textual standards required " Prior to adoption of the remedial amendments, the Town was unable to utilize GIS mapping. However, for the remedial amendments, GIS mapping was provided with the assistance of the Regional Planning Council. IWI did not prove beyond fair debate that the Town's data and analyses were insufficient under Chapter 163, Florida Statutes, and Rule Chapter 9J-5. State and Regional Plans IWI also contends, for essentially the same reasons addressed previously, that the Plan Amendments are inconsistent with State Comprehensive Plan provisions on water resources, natural systems, and public facilities and Withlacoochee Strategic Regional Policy Plan provisions on natural resources, fisheries, and water quality. A plan is consistent with the State Comprehensive Plan and regional policy plan if, considered as a whole, it is "compatible with" and "furthers" those plans. "Compatible with" means "not in conflict with" and "furthers" means "to take action in the direction of realizing goals or policies of the state or regional plan." § 163.3177(10)(a), Fla. Stat. Using those definitions, IWI failed to prove beyond fair debate that the Revised Comprehensive Plan, as a whole, is inconsistent with the State Comprehensive Plan or the Withlacoochee Strategic Regional Policy Plan.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order finding the Plan Amendments to be "in compliance." DONE AND ENTERED this 30th day of October, 2009, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of October, 2009.
The Issue The issue in this proceeding is whether the petition to establish the Sampson Creek Community Development District meets the applicable criteria set forth in Chapter 190, Florida Statutes, and Chapter 42-1, Florida Administrative Code.
Findings Of Fact Petitioner is seeking the adoption of a rule by the Commission to establish the Sampson Creek Community Development District. The proposed District consists of approximately 1,015 acres located within unincorporated St. Johns County, Florida. There are two out-parcels, totaling 3.7 acres, within the areas to be included in the District. No adverse impact on these out parcels is expected from the establishment of the district. The estimated cost of the infrastructure facilities and services which are presently expected to be provided to the lands within the District was included in the Petition. Petitioner's Composite Exhibit 1 was identified for the record as a copy of the Petition and its exhibits as filed with the Commission. Witnesses Maier, Walters, Boring, and Fishkind each stated that he had reviewed portions of the contents of the petition and its attachments and affirmed the petitions findings. Witness Maier testified that the Petitioner has written consent to establish the District from the owners of one hundred percent of the real property located within the lands to be included in the District. Witness Maier also presented deeds for parcels of land within the boundaries of the proposed District which have been acquired by the Petitioner or its subsidiaries, as well as consent forms from the Petitioner's subsidiaries. The Petition and its attached exhibits are true and correct, with the addition of the deeds showing land ownership and owners' consent as specified above. Witnesses Walters and Fishkind reviewed the proposed District in light of the requirements of the State Comprehensive Plan, Chapter 187, Florida Statutes. Witness Walters also reviewed the proposed District in light of the requirements of the St. Johns County Comprehensive Plan. From a planning and economic perspective, four subjects, subject 16, 18, 21, and 26, of the State Comprehensive Plan apply directly to the establishment of the proposed District as do the policies supporting those subjects. Subject 16, titled Land Use, of the State Comprehensive Plan recognizes the importance of locating development in areas with the fiscal ability and service capacity to accommodate growth. The proposed District will: have the fiscal capability to provide a wide range of services and facilities to the population in the designated growth area; help provide infrastructure to development the County, thereby helping limit unintended, unplanned sprawl; facilitate the delivery of infrastructure and services to assist in fulfilling the community plan. Subject 18, titled Public Facilities of the State Comprehensive Plan provides that the state shall protect substantial investments in public facilities and plan for and finance new facilities to serve residents in a timely, orderly and efficient manner. The proposed District will be consistent with this element because the District will: plan and finance the infrastructure systems and facilities needed for the development of lands within the District in a timely, orderly, and efficient manner; provide the infrastructure systems and facilities within the District with the landowners and residents benefiting from the new public facilities bearing the costs associated with construction, operation, and maintenance of the facilities; act in a type of 'infrastructure partnership' with St. Johns County; have financial self-sufficiency through the use of special assessments, as well as user charges or fees, to provide public facilities; provide a consistent, innovative and fiscally sound alternative for financing public facilities by bringing the cost of managing and financing public facilities down to a level of government closest to its beneficiaries and connecting those who pay for facilities with those who directly benefit from those facilities and services; and be structured to assure secure revenue sources capable of meeting District responsibilities. Subject 21, titled Governmental Efficiency of the State Comprehensive Plan provides that governments shall economically and efficiently provide the amount and quality of services required by the public. The proposed District will be consistent with this element because the proposed District will: cooperate with other levels of Florida government, such as through entering into interlocal agreement to address maintenance issues for certain roads; be established under uniform general law standards as specified in Chapter 190, Florida Statutes; be professionally managed, financed, and governed by those whose property directly receives the benefits; not burden the general taxpayer with costs for services or facilities inside the District; and plan and implement cost efficient solutions for the required public infrastructure and assure delivery of selected services to residents. Subject 26, titled Plan Implementation of the State Comprehensive Plan, provides that systematic planning shall be integrated into all levels of government, with emphasis on intergovernmental coordination and citizen involvement. The proposed District is consistent with this element of the State Comprehensive Plan because: the proposed District will systematically plan for the construction, operation and maintenance of the public improvements and the community facilities authorized under Chapter 190, Florida Statutes, subject to and not inconsistent with the local government comprehensive plan and land development regulations; the District meetings are publicly advertised and are open to the public so that all District property owners and residents can be involved in planning for improvements; Section 189.415, Florida Statutes, requires the District to file and update public facilities reports with the County, which it may rely upon in any revisions to the local comprehensive plan. Based on the testimony and exhibits in the record, the proposed District will not be inconsistent with any applicable element or portion of the State Comprehensive Plan. Witness Walters testified that since St. Johns County has already found the development within the proposed District to be not inconsistent with the St. Johns County local comprehensive plan, the establishment of a community development district would not cause any inconsistency and would be in furtherance of four of the plan's policies, goals and objectives: Policy H.1.3.4 of the St. Johns County Comprehensive Plan states that 'DRI's planned unit subdivisions, and other large developments shall provide for the dedication of parks and open space to be generated by the development according to the level of service standards.' The proposed District will finance the construction of, and ultimately own and maintain, a community recreational facility. Goal J.1 of the St. Johns County Comprehensive Plan states that St. Johns County is to ensure the orderly and efficient provision of infrastructure facilities and services such as roads, utilities, recreation, and drainage. The proposed District will serve as an alternative provider of these infrastructure systems and services to meet the needs of the lands within its boundaries; Objective J.1.7 of the St. Johns County Comprehensive Plan states that the County shall manage fiscal resources to ensure the provision of needed infrastructure. The proposed District will provide the infrastructure facilities and services needed for its lands without burdening the fiscal resources of the County or impacting the bonding limits contained in Policy J.1.7.; Objective K.1.6 of the St. Johns County Comprehensive Plan calls for St. Johns County to work cooperatively with other units of government to address issues and concerns. The proposed District may be expected to enter into interlocal agreements with the County to provide certain enhanced maintenance. Additionally, over the long term, the establishment of the proposed District will provide another unit of local government in place and able to cooperate with the County on future issues and concerns. The State of Florida Department of Community Affairs also reviewed the petition to establish the proposed District and concluded that the petition was consistent with the local comprehensive plan. Based on the evidence in the record, the proposed District will not be inconsistent with any applicable element or portion of the local comprehensive plan, and will in fact further the goals provided. Most of the land in the proposed District is part of a planned community included in a Planned Unit Development (PUD) approval issued by St. Johns County. The PUD was approved on February 10, 1998. The PUD is found in St. Johns County Ordinance No. 98-7. Section 6 of the PUD Application, which is incorporated into Ordinance 98-7 by reference, explicitly states that a community development district will be established and requires the establishment of the District prior to the sale of the first lot within the development. Petitioner is developing all of the lands within the District as a single master-planned community. Witness Walters testified that functional interrelation means that each community purpose has a mutual reinforcing relationship with each of the community's other purposes. Each function requires a management capability, funding source and an understanding of the size of the community's needs, so as to handle the growth and development of the community. Each function must be designed to contribute to the development or the maintenance of the community. The size of the District as proposed is approximately 1,105 acres. From a planning perspective, this is a sufficient size to accommodate the basic infrastructure facilities and services typical of a functionally interrelated community. Compactness relates to the location in distance between the lands and land uses within a community. The community is sufficiently compact to be developed as a functionally inter-related community. The compact configuration of the lands will allow the District to provide for the installation and maintenance of its infrastructure facilities in a long-term cost efficient manner. The property is sufficiently contiguous when all parts of a project are either in actual contact or are close enough to allow the efficient design and use of infrastructure. The proposed District is sufficiently contiguous for planning purposes and for the purpose of district governance. The size of the proposed community within the District provides a sufficient economic base to absorb the debt costs and annual operating costs for the proposed District. There will be no economic disincentives to the provision of the infrastructure facilities contemplated. From planning, economics, engineering, and management perspectives, the area of land to be included in the proposed District is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developed as a single functionally interrelated community. It is presently intended that the District will participate in the construction or provision of certain infrastructure improvements as outlined in the petition. Installation and maintenance of infrastructure systems and services by the District is expected to be financed by bonds and repaid through the imposition of special assessments on benefited property within the District. Use of such assessments will ensure that the real property benefiting from District services is the same property which pays for them. Two types of alternatives to the use of the proposed District were identified. First, the County might provide facilities and services from its general fund or through a MSTU. Second, facilities and services might be provided by some private means, without public bidding, with maintenance delegated to a homeowners association (HOA). The District exceeds the available alternatives at focusing attention to when and where and how the next system of infrastructure will be required. This results in a full utilization of existing facilities before new facilities are constructed and reduces the delivered cost to the citizens being served. Only a community development district allows for the independent financing, administration, operations, and maintenance of the land within such a district. Only a community development district allows district residents to completely control the district. All of the other alternatives do not have these characteristics. From an engineering perspective, the proposed District is the best alternative to provide the proposed community development services and facilities because it is a long-term stable, perpetual entity capable of maintaining the facilities over their expected life. From planning, economic, engineering, and special district management perspectives, the proposed District is the best alternative available for delivering community development services and facilities to the are that will be served by the District. The services and facilities proposed to be provided by the District are not incompatible with uses and existing local and regional facilities and services. The District's facilities and services within the proposed boundaries will not duplicate any existing regional services or facilities which are provided to the lands within the District by another entity. None of the proposed services or facilities are presently being provided by another entity for the lands to be included within the District. Therefore, the community development services and facilities of the proposed district will not be incompatible with the capacity and uses of existing local and regional community development services and facilities. As cited previously, from planning, economics, engineering, and special district management perspectives, the area of land to be included in the proposed District is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developed and become a functionally interrelated community. The lands to be included within the proposed District have a need for the basic infrastructure being provided. From an engineering perspective, the area within the proposed District is also large enough to support a staff necessary to operate and maintain the proposed infrastructure systems and facilities. Based upon these characteristics, the proposed District is expected to be financially viable. From planning, engineering, economic, and management perspectives, the area that will be served by the intended District is amenable to separate special-district government. Chapter 190, Florida Statutes, and Chapter 42-1, Florida Administrative Code, impose specific requirements regarding the petition and other information to be submitted to the Commission. Section 190.005(1)(a), Florida Statutes, requires the petition to contain a metes and bounds description of the external boundaries of the District. Petitioner's Composite Exhibit 1 contains such a description. Section 190.005(1)(a)1, Florida Statutes, also requires a description of any real property within the external boundaries which is to be excluded from the District and the last known address of the owners of such properties. Petitioner's Composite Exhibit 1 contains the required information. Section 190.005(1)(a), Florida Statutes, requires that the petition contain the proposed timetable for the construction of any district services and the estimated construction costs for those services as well as the designation of the future general distribution, location, and extent of public and private land uses proposed for the area by the future land use element of the adopted local government comprehensive plan. Petitioner's Composite Exhibit 1 contains this information. Section 190.005(1)(a), Florida Statutes, requires the petition to contain written consent to establishment of the District by the owners of one-hundred percent of the real property to be included within the proposed District. Petitioner's Composite Exhibit 1 contains this information which was supplemented by Petitioner at hearing, as it or its subsidiaries acquired title to the lands proposed to be included within the District. Sections 190.005 and 190.006, Florida Statutes, require that each member of a board of supervisors be a resident of Florida and a citizen of the United States. The proposed board members meet these criteria. Section 109.005(1)(a), Florida Statutes, requires the petition to include a Statement of Estimated Regulatory Costs (SERC), which meets the requirements of Section 120.541, Florida Statutes. The petition contains a SERC. It meets all requirements of Section 120.541, Florida Statutes. The SERC contains an estimate of the costs and benefits to all persons directly affected by the proposed rule to establish the District -- the State of Florida and its citizens, the country and its citizens, Petitioner, and consumers. Beyond administrative costs related to rule adoption, the State and its citizens will only incur minimal costs from establishing the District. These costs are related to the incremental costs to various agencies of reviewing one additional local government report. The proposed District will require no subsidies from the State. Benefits will include improved planning and coordination of development, which is difficult to quantify but is nonetheless substantial. Administrative costs incurred by the County related to rule adoption should be minimal. Benefits to the County will include improved planning and coordination of development, without incurring any administrative or maintenance burden for facilities and services within the proposed District except for those it chooses to accept. Consumers will pay non-ad valorem or special assessments for certain facilities. Location within the District is voluntary. Generally, District financing will be less expensive than maintenance through a property owners' association or capital improvements financed through developer loans. Benefits to consumers in the area within the community development district will include a higher level of public services and amenities than might otherwise be available, completion of District-sponsored improvements to the area on a timely basis, and a larger share of direct control over community development services and facilities within the area. Petitioner has complied with the provisions of Section 190.005(1)(b), Florida Statutes, in that St. Johns County was paid the requisite filing fees. Section 190.005(1)(d), Florida Statutes, requires the Petitioner to publish notice of the local public hearing in a newspaper of general circulation in St. Johns County for four consecutive weeks prior to the hearing. The notice was published in a newspaper of general paid circulation in St. Johns County (the St. Augustine Record) for four consecutive weeks on March 13, 2000, March 20, 2000, March 27, 2000, and April 3, 2000. All publications were prior to the hearing. Mr. Stephenson, on behalf of the County's community development district processing group formed in accordance with Section 5.06.00 of the St. Johns County Land Development Code, presented the following proposed findings regarding the approval of the development within the proposed District: On October 28, 1999, the St. Johns County Board of County Commissioners entered into an Impact Fee Agreement with St. Joe Residential Acquisitions, Inc., and A & S Land Development Company to widen a portion of CR 210 in order to meet concurrency requirements for two projects. St. Joe Residential Acquisitions, Inc. is the developer of the property contained within the Sampson Creek CDD Petition. The project is approved with a Planned Unit Development (PUD) zoning and contains 799 single family residential dwelling units and associated roadways, retention areas, common areas, sales and recreation complex, and an 18-hole golf course. St. Johns County Board of County Commissioners approved the PUB on February 10, 1998. The PUD provides that a CDD will be established and will be in place prior to the sale of the first lot so that purchasers will be aware of their participation and membership in the CDD and of their obligation to pay any taxes that may be levied by the CDD. The PUD and Impact Fee Agreement are separate County approved documents and the creation and operation of a CDD does not in any way affect these documents or their approval without further review by the St. Johns County Board of Commissioners. Impact fee credits shall be awarded in accordance with approved Impact Fee Agreement which ensures that the credits are awarded to the appropriate entity. The CDD processing group finds no inconsistencies with the six factors as described in Section 190.005(6), Florida Statutes. With these findings, Mr. Stephenson testified that St. Johns County has no objection to the establishment of the proposed District.
Conclusions On Monday April 10, 2000, at 10:00 a.m., the local public hearing for the Petition to Establish the Sampson Creek Community Development District was held before Administrative Law Judge Diane Cleavinger, at the St. Johns County Public Library, 950 Davis Pond Boulevard, in St. Johns County, Florida. The hearing was conducted pursuant to Section 190.005, Florida Statutes, for the purpose of taking testimony, public comment, and receiving exhibits on the petition of the St. Joe/Arvida Company, L.P. (Petitioner) to establish the Sampson Creek Community Development District (District) in northern St. Johns County, Florida. This report is prepared and submitted to the Florida Land and Water Adjudicatory Commission (Commission) pursuant to Section 190.005, Florida Statutes.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Governor and Cabinet, sitting as the Florida Land and Water Adjudicatory Commission, pursuant to Chapters 120, and 190, Florida Statutes, and Chapter 42-1, Florida Administrative Code, establish the Sampson Creek Community Development District as requested by Petitioner by formal adoption of the proposed rule, after inclusion of the legal description, in substantially the form attached to this Report of Findings and Conclusions as Attachment 3. DONE AND ENTERED this 16th day of May, 2000, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of May, 2000. COPIES FURNISHED: Jonathan T. Johnson, Esquire Carolyn S. Raepple, Esquire Hopping, Green, Sams & Smith, P.A. 123 South Calhoun Street Post Office Box 6526 Tallahassee, Florida 32314 Daniel Woodring, Esquire Florida Land and Water Adjudicatory Commission The Capitol, Suite 2105 Tallahassee, Florida 32399 Donna Arduin, Secretary Florida Land and Water Adjudicatory Commission The Capitol, Suite 1601 Tallahassee, Florida 32399 Barbara Leighty, Clerk Growth Management and Strategic Planning The Capitol, Suite 2105 Tallahassee, Florida 32399 Carol Licko, General Counsel Office of the Governor The Capitol, Suite 209 Tallahassee, Florida 32399-0001
The Issue The sole issue to be addressed is whether the amendment of the boundaries of The Crossings at Fleming Island Community Development District meets the applicable criteria set forth in Chapter 190, Florida Statutes, and Chapter 42-1, Florida Administrative Code.
Recommendation Based upon the foregoing findings of fact and conclusions of law, the undersigned Administrative Law Judge recommends that the Governor and Cabinet, sitting as the Florida Land and Water Adjudicatory Commission, pursuant to Chapters 190 and 120, Florida Statutes, and Chapter 42-1, Florida Administrative Code, amend the boundaries of The Crossings at Fleming Island Community Development District as requested by the Petitioner by formal adoption of the proposed rule attached to this Report of Findings and Conclusions as Exhibit 3. DONE AND ENTERED this 22nd day of December, 1998, in Tallahassee, Leon County, Florida. DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 1998. COPIES FURNISHED: Robert Bradley, Secretary Florida Land and Water Adjudicatory Commission Executive Office of the Governor 2101 Capitol Tallahassee, Florida 32399-0001 Elizabeth C. Bowman, Esquire Jonathan T. Johnson, Esquire Hopping, Green, Sams and Smith, P.A. 123 South Calhoun Street Post Office Box 6526 Tallahassee, Florida 32314 David Schwartz, Esquire Office of the Governor Florida Land and Water Adjudicatory Commission The Capitol, Room 209 Tallahassee, Florida 32399-0001
The Issue The issue in this proceeding is whether the Petition to establish the Big Island Community Development District (Petition) meets the applicable criteria in chapter 190, Florida Statutes (2017), and Florida Administrative Code Chapter 42-1.
Conclusions This proceeding is governed by chapters 120 and 190 and rule chapter 42-1. The proceeding was properly noticed pursuant to section 190.005 by publication of an advertisement in a newspaper of general paid circulation in the County and of general interest and readership, once each week for the four consecutive weeks immediately prior to the hearing. The Petitioner met the requirements of section 190.005 regarding the submission of the Petition and satisfaction of filing fee requirements. The Petitioner bears the burden of establishing that the Petition meets the relevant statutory criteria set forth in section 190.005(1)(e). All portions of the Petition and other submittals have been completed and filed as required by law. All statements contained within the Petition are true and correct. The establishment of the District is not inconsistent with any applicable element or portion of the State Comprehensive Plan or the effective local Comprehensive Plan. The area of land within the District is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developable as one functional interrelated community. The District is the best alternative available for delivering community development services and facilities to the area that will be served by the District. The community development services and facilities of the District will not be incompatible with the capacity and uses of existing local and regional community development services and facilities. The area to be served by the District is amenable to separate special-district government. Based on the record evidence, the Petition satisfies all of the statutory requirements and, therefore, there is no reason not to grant the Petitioner's request for establishment of the proposed District and to formally adopt a rule as requested by the Petitioner. DONE AND ENTERED this 26th day of December, 2017, in Tallahassee, Leon County, Florida. S FRANCINE M. FFOLKES Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of December, 2017. COPIES FURNISHED: Cynthia Kelly Florida Land and Water Adjudicatory Commission Room 1801, The Capitol Tallahassee, Florida 32399-0001 Barbara R. Leighty, Agency Clerk Transportation and Economic Development Policy Unit Room 1801, The Capitol Tallahassee, Florida 32399-0001 (eServed) Jonathan T. Johnson, Esquire Hopping, Green, and Sams, P.A. 119 South Monroe Street, Suite 300 Post Office Box 6526 Tallahassee, Florida 32314-6526 (eServed) Jennifer Kilinski, Esquire Hopping, Green, and Sams, P.A. 119 South Monroe Street Suite 300 Post Office Box 6526 Tallahassee, Florida 32314-6526 (eServed) John Maciver, General Counsel (General Counsel to the Commission) Office of the General Counsel Office of the Governor Room 209, The Capitol Tallahasee, Florida 32399-0001 (eServed)
The Issue The sole issue to be addressed is whether the Petition to establish the Double Branch Community Development District meets the applicable criteria set forth in Chapter 190, Florida Statutes, and Chapter 42-1, Florida Administrative Code.
Findings Of Fact Overview The Petitioner is seeking the adoption of a rule by the Commission to establish a community development district proposed to consist of approximately 1,203 acres located within the boundaries of unincorporated Clay County. The suggested name for the proposed District is the Double Branch Community Development District. The Petition notes that the proposed District covers approximately 1,203 acres. Hinson testified that the approximate acreage of the proposed District remains 1,203 acres; however, the metes and bounds description contained in the Petition has been revised since the time of the filing of the Petition. The revised metes and bounds description was, without objection, admitted into evidence. There are no out-parcels within the area to be included in the proposed District. The estimated cost of the infrastructure facilities and services which are presently expected to be provided to the lands within the District was included in the Petition. The sole purpose of this proceeding was to consider the establishment of the District as proposed by the Petitioner. Summary of Evidence and Testimony Whether all statements contained within the Petition have been found to be true and correct. Petitioner's Composite Exhibit A was identified for the record as a copy of the Petition and its exhibits as filed with the Commission. Hinson testified that he had reviewed the contents of the Petition and approved its findings. Hinson also generally described the exhibits to the Petition. Hinson testified that the Petition and its exhibits, as modified by the revised metes and bounds description admitted into evidence as Exhibit B, are true and correct to the best of his knowledge. Miller testified that he had assisted in the preparation of portions of the Petition and its exhibits. Miller also generally described several exhibits to the Petition which he or his office had prepared. Miller testified that the exhibits to the Petition, prepared by England, Thims & Miller, Inc., and admitted into evidence, were true and correct to the best of his knowledge. Walters testified that he had prepared Exhibit 11 to the Petition, the Statement of Estimated Regulatory Costs (SERC). Walters also testified that Statement of Estimated Regulatory Costs submitted as Exhibit 11 to Petitioner's Composite Exhibit A was true and correct to the best of his knowledge. Hinson also testified that the consent by the owner of the lands to be included within the proposed District is still in full force and effect. The Petition included written consent to establish the District from the owners of one hundred percent (100%) of the real property located within the lands to be included in the proposed District. There have been no sales of these lands thus far. Based upon the foregoing, the Petition and its exhibits are true and correct. Whether the establishment of the District is inconsistent with any applicable element or portion of the State Comprehensive Plan or of the effective local government comprehensive plan. Walters reviewed the proposed District in light of the requirements of the State Comprehensive Plan, Chapter 187, Florida Statutes. Walters also reviewed the proposed District in light of the requirements of the Clay County Comprehensive Plan. From a planning and economic perspective, four (4) subjects of the State Comprehensive Plan apply directly to the establishment of the proposed District as do the policies supporting those subjects. Subject 16, Land Use, recognizes the importance of locating development in areas with the fiscal ability and service capacity to accommodate growth. The proposed District will have the fiscal ability to provide services and facilities to the population in the designated growth area and help provide infrastructure in an area which can accommodate development within Clay County in a fiscally responsible manner. Subject 18, Public Facilities, provides that the State shall protect substantial investments in public facilities and plan for and finance new facilities to serve residents in a timely, orderly, and efficient manner. The proposed District will be consistent with this element because the District will plan and finance the infrastructure systems and facilities needed for the development of lands within the District at no capital cost to Clay County. Subject 21, Governmental Efficiency, provides that governments shall economically and efficiently provide the amount and quality of services required by the public. The proposed District will be consistent with this element because the proposed District will finance and deliver those public services and facilities as needed by the District's residents and property owners. The proposed District will be established under uniform general law standards as specified in Chapter 190, Florida Statutes. Creating a District does not burden the general taxpayer with the costs for the services or facilities inside the proposed District. The proposed District will require no subsidies from the state or its citizens. Subject 26, Plan Implementation, provides that systematic planning capabilities be integrated into all levels of government, with emphasis on improving intergovernmental coordination. The proposed District is consistent with this element of the State Comprehensive Plan because the proposed District, by and through a separate and distinct Board of Supervisors, will systematically plan for the construction, operation, and maintenance of the public improvements and the community facilities authorized under Chapter 190, Florida Statutes, subject to and not inconsistent with the local government comprehensive plan and land development regulations. Additionally, the District meetings are publicly advertised and are open to the public so that all District property owners and residents can be involved in planning for improvements. Finally, Section 189.415(2), Florida Statutes, requires the District to file and update public facilities reports with the county or city, which they may rely upon in any revisions to the local comprehensive plan. Based on the testimony and exhibits in the record, the proposed District will not be inconsistent with any applicable element or portion of the State Comprehensive Plan. The Clay County Comprehensive Plan contains thirteen (13) elements which are supported by numerous goals and objectives. Walters testified that portions of three (3) of these elements are relevant when determining whether or not the proposed District is inconsistent with the local comprehensive plan. There are Goals and Objectives within the Future Land Use Element which are targeted to effectively manage growth in areas designated to accommodate future development and provide services in a cost-efficient manner. The proposed District is within the County's Planned Urban Service Area, and is part of a Chapter 380, Florida Statutes, development order vested in the County Land Use Plan. The proposed District is a recognized vehicle to provide the necessary services and facilities to the lands within the boundaries of the proposed District. The goal of the Intergovernmental Coordination Element is to establish processes among various governmental, public and private entities to coordinate development activities, preservation of the quality of life, and the efficient use of available resources. The proposed District will assist in the coordination process by providing and maintaining community infrastructure in a way that is not inconsistent with the plans and activities of related public and private agencies. The Capital Improvements Element is intended to provide necessary infrastructure in a timely and orderly manner. The proposed District will expand the areas that enjoy infrastructure in a manner consistent with the Clay County Comprehensive Plan. Based on the evidence in the record, the proposed District will not be inconsistent with any applicable element or portion of the Local Comprehensive Plan, and will in fact further the goals provided. The Florida Department of Community Affairs (DCA) reviewed the Petition for compliance with its various programs and responsibilities. DCA also discussed the contents of the Petition with the Clay County Planning Department and the Northeast Florida Regional Planning Council. After conducting its own review and conferring with local governmental entities, DCA concluded that it had no objection to the establishment of the Double Branch Community Development District. Whether the area of land within the proposed district is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developable as one functional interrelated community. Testimony on this criterion was provided by Miller and Walters. The lands that comprise the proposed District will consist of approximately 1,203 acres, located within the borders of unincorporated Clay County. All of the land in the proposed District is part of a planned community included in the Villages of Argyle Forest Development of Regional Impact (DRI). Functional interrelation means that each community purpose has a mutual reinforcing relationship with each of the community's other purposes. Each function requires a management capability, funding source, and an understanding of the size of the community's needs, so as to handle the growth and development of the community. Each function must be designed to contribute to the development or the maintenance of the community. The size of the District as proposed is approximately 1,203 acres. From a planning perspective, this is a sufficient size to accommodate the basic infrastructure facilities and services typical of a functionally interrelated community. The proposed facilities and services require adequate planning, design, financing, construction, and maintenance to provide the community with appropriate infrastructure. Compactness relates to the location in distance between the lands and land uses within a community. The community is sufficiently compact to be developed as a functionally inter-related community. The compact configuration of the lands will allow the District to provide for the installation and maintenance of its infrastructure in a long- term, cost-efficient manner. The Petitioner is developing all of the lands within the District as a single master-planned community. All of these lands are governed by the Villages of Argyle Forest Development of Regional Impact Development Order issued by Clay County. From planning, economics, engineering, and management perspectives, the area of land to be included in the proposed District is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developed as a single functionally interrelated community. Whether the proposed district is the best alternative available for delivering community development services and facilities to the area that will be served by the proposed district. It is presently intended that the District will participate in the construction or provision of certain infrastructure improvements as outlined in the Petition. Installation and maintenance of infrastructure systems and services by the District is expected to be financed through the issuance of tax exempt bonds and the debt retired by "non-ad valorem" or "special" assessments on benefited property within the proposed District. Expenses for operations and maintenance are expected to be paid through maintenance assessments. Use of such assessments will ensure that the real property benefiting from District services is the same property which pays for them. Two types of alternatives to the use of the District were identified. First, the County might provide facilities and services from its general fund. Second, facilities and services might be provided by some private means, with maintenance delegated to a property owners' association (POA) or a home owners' association (HOA). The District is preferable to the available alternatives at focusing attention on when, where, and how the next system of infrastructure will be required. This results in a full utilization of existing facilities before new facilities are constructed and reduces the delivered cost to the citizens being served. The District will construct certain infrastructure and community facilities which will be needed by the property owners and residents of the project. Expenses for the operations and maintenance are expected to be paid through maintenance assessments to ensure that the property or person receiving the benefit of the district services is the same property or person to pay for those services. Only a community development district allows for the independent financing, administration, operations and maintenance of the land within such a district. Only a community development district allows district residents to completely control the district. The other alternatives do not have these characteristics. From an engineering perspective, the proposed District is the best alternative to provide the proposed community development services and facilities to the land included in the proposed District because it is a long-term, stable, perpetual entity capable of funding, constructing, and in some cases, maintaining the facilities over their expected life. From planning, economic, engineering, and special district management perspectives, the proposed District is the best alternative available for delivering community development services and facilities to the area that will be served by the District. Whether the community development services and facilities of the proposed district will be incompatible with the capacity and uses of existing local and regional community development services and facilities. The services and facilities proposed to be provided by the District are not incompatible with uses and existing local and regional facilities and services. The District's facilities and services within the proposed boundaries will not duplicate any existing regional services or facilities which are provided to the lands within the District by another entity. None of the proposed services or facilities are presently being provided by another entity for the lands to be included within the District. Therefore, the community development services and facilities of the proposed district will not be incompatible with the capacity and uses of existing local and regional community development services and facilities. Whether the area that will be served by the district is amenable to separate special-district government. As cited previously, from planning, economics, engineering, and special district management perspectives, the area of land to be included in the proposed District is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developed and become a functionally interrelated community. The community to be included in the District has need for basic infrastructure systems to be provided. From planning, engineering, economic and management perspectives, the area that will be served by the amended District is amenable to separate special-district government. Other requirements imposed by statute or rule. Chapter 190, Florida Statutes, and Chapter 42-1, Florida Administrative Code, impose specific requirements regarding the Petition and other information to be submitted to the Commission. Elements of the Petition The Commission has certified that the Petition to Establish the Double Branch Community Development District meets all of the requirements of Section 190.005(1)(a), Florida Statutes. Statement of Estimated Regulatory Costs (SERC) The SERC contains an estimate of the costs and benefits to all persons directly affected by the proposed rule to establish the District -- the State of Florida and its citizens, the County and its citizens, the City and its citizens, the Petitioner, and consumers. Beyond administrative costs related to rule adoption, the State and its citizens will only incur minimal costs from establishing the District. These costs are related to the incremental costs to various agencies of reviewing one additional local government report. The proposed District will require no subsidies from the State. Benefits will include improved planning and coordination of development, which are difficult to quantify, but nonetheless substantial. Administrative costs incurred by the County related to rule adoption should be minimal. Benefits to the County will include improved planning and coordination of development, without incurring any administrative or maintenance burden for facilities and services within the proposed District except for those it chooses to accept. Consumers will pay non-ad valorem or special assessments for certain facilities. Location in the District by new residents is voluntary. Generally, District financing will be less expensive than maintenance through a property owners' association or capital improvements financed through developer loans. Benefits to consumers in the area within the CDD will include the option of having a higher level of public services and amenities than might otherwise be available, completion of District-sponsored improvements to the area on a timely basis, and a larger share of direct control over community development services and facilities within the area. Section 190.005(1)(a), Florida Statutes, requires the Petition to include a SERC which meets the requirements of Section 120.541, Florida Statutes. The Petition contains a SERC. It meets the requirements of Section 120.541, Florida Statutes. Other Requirements Petitioner has complied with the provisions of Section 190.005(1)(b)1, Florida Statutes, in that Clay County was paid the requisite filing fees. Section 190.005(1)(d), Florida Statutes, requires the Petitioner to publish notice of the local public hearing in a newspaper of general circulation in Clay County for four consecutive weeks prior to the hearing. The notice was published in The County Line section of The Florida Times-Union, a newspaper of general circulation in Clay County for four consecutive weeks, on February 13, 2002, February 20, 2002, February 27, 2002, and March 6, 2002. Clay County Support for Establishment Pursuant to the requirements of Section 190.005(1)(b), Florida Statutes, Petitioner filed a copy of the Petition and the $15,000 filing fee with Clay County prior to filing the Petition with the Commission. As permitted by Section 190.005(1)(c), Florida Statutes, the Clay County Commission held a public hearing on February 26, 2002, to consider the establishment of the Double Branch Community Development District. At the conclusion of its public hearing on February 26, 2002, the Clay County Commission adopted Resolution No. 01/02-42, expressing support for the Commission to promulgate a rule establishing the Double Branch Community Development District. The Clay County Resolution specifically found that all six (6) of the statutory factors for evaluating the establishment of community development districts found in Section 190.005(1)(e), Florida Statutes, had been met by the Petition in this matter.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Governor and Cabinet, sitting as the Florida Land and Water Adjudicatory Commission, pursuant to Chapters 190 and 120, Florida Statutes, and Chapter 42-1, Florida Administrative Code, establish the Double Branch Community Development District as requested by the Petitioner by formal adoption of the proposed rule attached to this Report as Exhibit 3. DONE AND ENTERED this 1st day of April, 2002, in Tallahassee, Leon County, Florida. CHARLES A. STAMPELOS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of April, 2002. Exhibit 1 Petitioner's Witnesses at Public Hearing Donald P. Hinson OakLeaf Plantation, L.L.C 3020 Hartley Road, Suite 100 Jacksonville, Florida 32257 Douglas C. Miller, P.E. England Thims & Miller, Inc. 14775 St. Augustine Road Jacksonville, Florida 32258 Gary R. Walters Gary Walters and Associates 12 Crooked Tree Trail Ormond Beach, Florida 32174 Exhibit 2 List of Petitioner's Exhibits Letter Description Composite Exhibit (Petition with twelve (12) exhibits) B-1 Pre-filed Testimony of Donald P. Hinson (11 pages) Revised legal description for lands to be included within the boundaries of the proposed District Commission Notice of Receipt of Petition Letter to Division of Administrative Hearings from Commission Letter to Department of Community Affairs from Commission Correspondence from Department of Community Affairs to the Commission Clay County Resolution 01/02-42 Development Order (No. 99-45) for Villages of Argyle Forest Development of Regional Impact Florida Times-Union Proof of Publication of Notice of Local Public Hearing Pre-filed Testimony of Douglas C. Miller, P.E. (8 pages) Pre-filed Testimony of Gary R. Walters (21 pages) Chapter 187, Florida Statutes (23 pages) Exhibit 3 Text of Proposed Rule CHAPTER 42___-1 DOUBLE BRANCH COMMUNITY DEVELOPMENT DISTRICT 42___-1.001 Establishment. 42___-1.002 Boundary. 42___-1.003 Supervisors. 42____-1.001 Creation. The Double Branch Community Development District is hereby established. Specific Authority 120.53(1), 190.005 FS. Law Implemented 190.005 FS. History-New 42____-1.002 Boundary. The boundaries of the District are as follows: A parcel of land lying in the being part of Sections 4, 5, 6, 8 and 9, Township 4 South, Range 25 East, Clay County, Florida, being more particularly described as follows: Commencing at the Northwest corner of said Section 4, also being the Northeast corner of said Section 5; thence, on the West line of said Section 4, South 00 degrees 10 minutes 14 seconds East, 5.00 feet to the point of beginning; thence, parallel with and 5.0 feet South from the North line of said Section 4, also being the line dividing Clay County and Duval County, and the North line of said Township 4 South, North 89 degrees 50 minutes 04 seconds East, 2039.14 feet to the West line of Deerfield Pointe, as recorded in Plat Book 22, Pages 62 through 65, of the public records of said Clay County; thence, on said West line, South 00 degrees 20 minutes 13 seconds West, 1354.17 feet to the South line of said Deerfield Pointe; thence, on said South line, North 89 degrees 51 minutes 50 seconds East, 675.62 feet to the West line of Spencer’s Crossing Unit 1, as recorded in Plat Book 18, Pages 18 through 22, of said public records; thence, on said West line, the West line of Spencer’s Crossing Unit 5, as recorded in Plat Book 27, Pages 19 through 22, the West line of Sweetbriar, as recorded in Plat Book 32, Pages 61 through 64, the West line of lands recorded in Official Records Book 1603, Page 1212, and the West line of a 20 foot right-of-way recorded in Official Records Book 1603, Page 1220, all being recorded in the public records of said county, said line also being the East line of the Southeast quarter of the Northwest quarter and the Southwest quarter of said Section 4, South 00 degrees 31 minutes 32 seconds West, 4050.46 feet to the South line of said Section 4; thence, on said South line, North 89 degrees 51 minutes 57 seconds West, 662.62 feet to the West line of lands described in Official Records Book 1603, page 1212, of said public records, also being the East line of the West half of the Northeast quarter of the Northwest quarter of said Section 9; thence, on last said line, South 00 degrees 11 minutes 52 seconds East, 1388.96 feet to the South line of said Northeast quarter of the Northwest quarter of said Section 9; thence, on said South line, South 89 degrees 09 minutes 05 seconds West, 662.36 feet to the East line of the Southwest quarter of the Northwest quarter of said Section 9; thence, on said East line, South 00 degrees 21 minutes 15 seconds East, 699.95 feet to the South line of the North half of the Southwest quarter of the Northwest quarter of said Section 9; thence, on said South line, South 88 degrees 36 minutes 38 seconds West, 1327.66 feet to the West line of said Section 9, also being the East line of said Section 8; thence, on the South line of the North half of the Southeast quarter of the Northeast quarter of said Section 8, North 88 degrees 34 minutes 52 seconds West, 1335.51 feet to the East line of the Southwest quarter of the Northeast quarter of said Section 8; thence, on said East line, South 00 degrees 10 minutes 48 seconds East, 700.93 feet to the South line of said Southwest quarter of the Northeast quarter of Section 8; thence, on said South line, North 88 degrees 09 minutes 42 seconds West, 1156 feet, more or less, to the centerline of the North prong of Double Branch; thence, in a Northwesterly direction, by and along said centerline and following the meanderings thereof, 12,053 feet, more or less, to a point bearing South 89 degrees 49 minutes 27 seconds West from the point of beginning; thence, parallel with and 5.0 feet South from the North line of said Section 5, North 89 degrees 49 minutes 27 seconds East, 5043 feet, more or less, to the point of beginning. said parcel containing 1203 acres, more or less. Specific Authority 120.53(1), 190.005 FS. Law Implemented 190.004, 190.005 FS. History-New 42____-1.003 Supervisors. The following five persons are designed as the initial members of the Board of Supervisors: Donald P. Hinson, James T. O’Riley, Donald E. Brown, Charles W. Arnold, III, and Gary F. Hannon. Specific Authority 120.53(1), 190.005 FS. Law Implemented 190.006(1) FS. History - New COPIES FURNISHED: Cheryl G. Stuart, Esquire Jennifer A. Tschetter, Esquire Hopping, Green & Sams, P.A. 123 South Calhoun Street Post Office Box 6526 Tallahassee, Florida 32314 Charles Canady, General Counsel Florida Land and Water Adjudicatory Commission Office of the Governor Department of Legal Affairs The Capitol, Room 209 Tallahassee, Florida 32399 Donna Arduin, Secretary Florida Land and Water Adjudicatory Commission Office of the Governor The Capitol, Room 2105 Tallahassee, Florida 32399 Barbara Leighty, Clerk Growth Management and Strategic Planning The Capitol, Room 2105 Tallahassee, Florida 32399
The Issue 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 The issue is whether the Petition to Establish the Southeastern Community Development District (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).
