The Issue The issue is whether the establishment of the Tuscany Community Development District meets the applicable criteria set forth in Chapter 190, Florida Statutes.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Overview In this proceeding, Petitioner, Beverly Hills Development Corporation, seeks the adoption of a rule by the Florida Land and Water Adjudicatory Commission (Commission) to establish a new community development district just northeast of Beverly Hills in Citrus County, Florida. The proposed name for the new District is the Tuscany Community Development District (the District). The sole purpose of this proceeding was to consider the establishment of the District as proposed by Petitioner. Summary of Evidence and Testimony The evidence indicates that all of the statements contained in the Petition, as amended, are true and correct. Edwin M. Bulleit, a certified public accountant with Prager, McCarthy and Sealy, testified that he and his attorney met individually with the different county commissioners for Citrus County regarding the proposed District, and although the commissioners had questions, they had no objections to the adoption of the proposed District. Mr. Bulleit further testified that he felt he adequately answered the questions of the commissioners. Mr. Bulleit testified that a community development district is a mechanism to finance, plan, and manage public improvements. Witness Bulleit further testified that such a mechanism allows development to pay for itself. Mr. Bulleit stated that in his experience, 80 to 90 percent of developments in Florida are pursuing community development-type financing. Mr. Bulleit further testified that community developments provide the opportunity for tax exempt financing, the benefits of which include (i) lower interest rates, which make the development more financially sound and lots within the community development district more affordable, and (ii) access to long-term, 30-year debt financing, which means the financing matches the long-term nature of the assets being financed. Mr. Bulleit testified that a community development district may exercise certain powers subject to the regulatory jurisdiction and permitting authority of all applicable governmental bodies, agencies, and special districts having authority with respect to the community development district. Mr. Dale R. Miller, Vice-President of Petitioner, testified that Petitioner is a Florida corporation with offices in Beverly Hills, Florida. A certified copy of a Certificate of Active Status for Petitioner issued by the Florida Department of State was received into evidence as Exhibit 1. Mr. Miller indicated that the land area to be served by the proposed District consists of two parcels of unimproved real property containing approximately 951.14 acres located in the existing Beverly Hills Development of Regional Impact (Beverly Hills Property) and 560 acres located outside the Beverly Hills Development of Regional Impact (King Land Trust Property) for a total acreage of approximately 1,511.14 acres. Mr. Miller also testified that the Beverly Hills Property and King Land Trust Property are contiguous (320 acres are adjacent to the east of the Beverly Hills Property, while 240 acres are adjacent to the south of the Beverly Hills Property). The conceptual development plan's allotted acreage for each land use was received into evidence as a part of Composite Exhibit 4. The proposed District is entirely within the territorial limits of Citrus County, Florida. Mr. Miller further testified that the metes and bounds legal description of the external boundaries of the proposed District is as described in and attached to the Petition as Exhibit B and Exhibit B-1 and introduced into evidence at the hearing as a part of Composite Exhibit 4. Petitioner filed an amended Exhibit B to its Petition, which contained an amended legal description of the boundaries for the proposed District. Mr. Miller indicated that the owners of the land to be included within the boundaries of the proposed District are Petitioner and William H. Cauthen, as Trustee of the King Land Trust, Inc. Mr. Miller further testified that the owners of the land to be included within the proposed District have consented to establishing the proposed District. The written consents of the owners of the land to be included in the proposed District were attached to the Petition as Exhibits C and C-1, and introduced into evidence at the hearing as a part of Composite Exhibit 4. Mr. Miller testified that the five persons designated to serve as the initial members of the Board of Supervisors of the proposed District are: Ronald J. Collins, Dale R. Miller, Taylor Collins, Paul Buchanan, and John O'Kelley. The initial supervisors will serve on the Board of Supervisors until replaced by elected members as provided by Section 190.006, Florida Statutes. All of the initial supervisors are residents of the State of Florida and citizens of the United States of America. Mr. Miller also stated that the proposed timetables and related estimates of cost to construct the proposed District's services and facilities, based upon available data, were attached to the Petition as Exhibit D and received into evidence as a part of Composite Exhibit 4. Mr. Miller testified that the Statement of Estimated Regulatory Costs (SERC) to establish the proposed District were attached to the Petition as Exhibit E and received into evidence as a part of Composite Exhibit 4. The future general description, location, and extent of public and private uses of land proposed for the area within the proposed District will be incorporated into the adopted and approved Citrus County Comprehensive Plan. Also, the requested land use and zoning classifications permit the planned residential and commercial development to be located within the proposed District. Finally, for those portions of the proposed District situated within the Beverly Hills DRI, the proposed public and private uses of land are compatible with all development orders issued pursuant to the DRI process. Mr. Miller testified that the proposed public and private uses of the land at issue were compatible with all of the development orders that have been issued pursuant to the development of regional impact process. Gail Easley, a professional land planner with The Gail Easley Company, testified that she reviewed the Petition and its exhibits in conjunction with the State Comprehensive Plan and found that the proposed District will not be inconsistent with any applicable element or portion of the State Comprehensive Plan. Ms. Easley also testified that she reviewed the Citrus County Comprehensive Plan, including the goals, objectives, and policies, as well as other materials, and found that the proposed District will not be inconsistent with any applicable element or portion of the Citrus County Comprehensive Plan. Ms. Easley further stated that the area of land within the proposed District is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developed as one functional interrelated community. Witnesses Bulleit, Miller, and Easley each testified that 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. Witnesses Bulleit and Miller testified that establishing the District will promote development of the land within the District by providing for a more efficient use of its resources. Mr. Miller testified that the community development services and facilities of the District will be compatible with the capacity and uses of existing and local regional community development services and facilities. Mr. Miller also stated that the District provides a perpetual entity capable of making reasonable provisions for the operation and maintenance of the District's services and facilities. Mr. Miller further testified that there is no real property located within the external boundaries of the District that is not going to be included within the District. Witnesses Bulleit and Easley testified that the area that will be served by the proposed District is amenable to separate special-district government. Louis G. Badami, Director of Utilities for Citrus County, testified that the District would be compatible with the capacity and uses of the existing local and regional water and sewer facilities, including those of Citrus County and Rolling Oaks Utilities, Inc. (Rolling Oaks). The latter utility is privately owned and provides water and wastewater service in an area adjacent to the District. Mr. Badami's testimony focused only on the water and wastewater service territories of Citrus County and Rolling Oaks. More specifically, he went on record as opposing a request to expand the present service territory of Rolling Oaks. He further testified that if the District was merely a funding mechanism to construct and install utilities and there was no expansion of Rolling Oaks' service territory without following applicable rules and regulations, he would recommend to Citrus County that it not oppose the District. Robert A. Knight, Director of Utility Regulation for Citrus County, testified that he was not testifying for or against the proposed District, but rather only about a legal matter regarding the ability of Rolling Oaks to serve the proposed District. In this regard, Mr. Knight did not object to approval of the proposed District in light of the stipulation by Petitioner's representative at the public hearing that Rolling Oaks would follow applicable rules and regulations with respect to expanding its service territory. Four members of the general public provided comment and asked questions concerning the consumption of water and the nature of the expected development within the proposed District. They are concerned that given the present supply of water in Citrus County, there may not be sufficient water from existing wells to serve the hundreds of new homes that will be built in the District.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Land and Water Adjudicatory Commission, pursuant to Chapters 120 and 190, Florida Statutes, and Chapter 42-1, Florida Administrative Code, establish the Tuscany Community Development District, as requested by Petitioner, by formal adoption of the proposed rule attached to this Report as Appendix C. DONE AND ENTERED this 25th day of June, 2002, in Tallahassee, Leon County, Florida. ___________________________________ DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of June, 2002. COPIES FURNISHED: Daren L. Shippy, Esquire Rose, Sundstrom & Bentley, LLP 2548 Blairstone Pines Drive Tallahassee, Florida 32301-5925 Clark A. Stillwell, Esquire Brannen, Stillwell & Perrin 320 Highway 41 South, Second Floor Inverness, Florida 34450-4956 Charles Canady, General Counsel Office of the Governor The Capitol, Room 209 Tallahassee, Florida 32399-0001 Donna Arduin, Secretary Florida Land and Water Adjudicatory Commission Office of the Governor The Capitol, Room 2105 Tallahassee, Florida 32399-0001 Barbara Leighty, Clerk Growth Management and Strategic Planning The Capitol, Room 2105 Tallahassee, Florida 32399-0001 Gregory M. Munson, Esquire Florida Land and Water Adjudicatory Commission The Capitol, Suite 029 Tallahassee, Florida 32399-0001 APPENDIX A Petitioner's Witnesses at the Public Hearing Edwin M. Bulleit Prager, McCarthy and Sealy 4921 Bay Way Drive Tampa, Florida 33629-4803 Dale R. Miller Beverly Hills Development Corporation 3 Beverly Hills Boulevard Beverly Hills, Florida 34465-3421 Gail Easley The Gail Easley Company 34 Northeast Crystal Street Crystal River, Florida 34428-3532 Robert A. Knight Director of Utility Regulation Citrus County 3600 Sovereign Avenue Lecanto, Florida 34461-7727 Louis G. Badami Director of Utilities Citrus County 3600 Sovereign Avenue Lecanto, Florida 34461-7727 Public Witnesses at Hearing Louis G. Badami Director of Utilities Citrus County 3600 Sovereign Avenue Lecanto, Florida 34461-7727 Robert A. Knight Director of Utility Regulation Citrus County 3600 Sovereign Avenue Lecanto, Florida 34461-7727 John Chipurn 4311 North Mae West Way Beverly Hills, Florida 34465-8747 Rodney Cole (address not given) Gilbert Buechly 106 South Jefferson Beverly Hills, Florida 34465-3717 Don Jordon (address not given) APPENDIX B List of Petitioner's Exhibits Certificate of Active Status - Beverly Hills Development Corporation Affidavit of Proof of Publication of Notice of Hearing for local newspaper of general circulation Notice of Receipt of Petition published in Florida Administrative Weekly - March 22, 2002 Composite exhibit of all attachments to Petition Composite exhibit of two aerial photographs of Proposed District and surrounding area General area development plan/map of area to include Proposed District and surrounding areas Curriculum Vitae of witness Easley List of prior expert testimony of witness Easley Deeds of properties to be included in Proposed District Composite exhibit of all development orders for Beverly Hills Development of Regional Impact Generalized future land use map for Citrus County Land Development Code atlas 1981 Master Development Plan for Beverly Hills Development of Regional Impact Composite exhibit of map showing Citrus County water and wastewater facilities location and letter from witness Badami to counsel Shippy Other Exhibits Knight Exhibit No. 1 - Prepared testimony of Robert Knight Chipurn Exhibit No. 1 - Newspaper article (April 6, 2002) APPENDIX C Text of Proposed Rule CHAPTER 42 -1 TUSCANY COMMUNITY DEVELOPMENT DISTRICT 42 -1.001 Creation. 42 -1.002 Boundary. 42 -1.003 Supervisors. 42 -1.001 Creation. The Tuscany 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: Parcel No. 1, being more particularly described as follows: Commence at the most Northerly Corner of BEVERLY HILLS, UNIT 3A, according to the map or plat thereof recorded in Plat Book 5, page 1, public records of Citrus County, Florida, said point being on the Southeasterly right-of-way line of County Road No. 491 and being 50 feet from, measured at right angles to, the centerline of said County Road No. 491, thence S. 510 02' 53" E. along the Northeasterly line of said BEVERLY HILLS, UNIT 3A, a distance of 400 feet to the POINT OF BEGINNING, thence N. 380 56' 39" E. parallel to and 400 feet from, said Southeasterly right-of-way line, a distance of 4347.25 feet to the P.C. of a curve, concaved Northwesterly, having a central angle of 130 52' 45" and a radius of 6167.33 feet, thence Northeasterly along the arc of said curve, a distance of 1493.96 feet to the P.T. of said curve, thence N. 250 03' 54" E. parallel to and 400 feet from, said Southeasterly right-of- way line a distance of 1734.33 feet to a point on the boundary of lands described in Deed recorded in Official Record, Book 385, page 466, public records of Citrus County, Florida, thence S. 10 39' 30" E. along said boundary a distance of 836.98 feet to the SW Corner of said lands, thence N. 880 20' 30" E. along the South line of said lands, a distance of 1377.72 feet to the SE Corner of said lands, thence N. 10 39' 30" W. along the East line of said lands, a distance of 1200 feet to the NE Corner of said lands, thence S. 880 20' 30" W. along the North line of said lands, a distance of 1306.83 feet to the SE Corner of lands described in Deed recorded in Official Record, Book 538, page 632, of said records, thence N. 250 03' 54" E. along the East line of said lands, a distance of 190.26 feet to the NE Corner of said lands, said point being on the South line of lands described in Deed recorded in Official Record, Book 423, page 128, of said records, thence N. 880 20' 30" E. along said South line a distance of 346.97 feet to the SE Corner of said lands, thence N. 10 39' 30" W. along the East line of said lands a distance of 330.02 feet to the NE Corner of said lands, said point also being on the North line of Section 1, TOWNSHIP 18 SOUTH, RANGE 18 EAST, thence N. 880 20' 30" E. along said North line a distance of 1869.43 feet to the NE Corner of said Section 1, said point also being the NW Corner of Section 6, TOWNSHIP 18, SOUTH, RANGE 19 EAST, thence N. 890 28' 20" E. along the North line of said Section 6, a distance of 2636.38 feet to the NW Corner of the NE 1/4 of said Section 6, thence N. 890 53' 45" E. along the North line of said Section 6, a distance of 2645.54 feet to the NE Corner of said Section 6, thence S. 00 12' 24" E. along the East line of said Section 6, a distance of 1328.53 feet to the SE Corner of the N 2 of NE 1/4 of said Section 6, thence S. 890 53' 40" W. along the South line of said N 2 of NE 1/4, a distance of 2646.85 feet to the SW Corner of said N 2 of NE 1/4, thence S. 00 09' E. along the East line of the NW 1/4 of said Section 6, a distance of 1328.59 feet to the NE Corner of the SW 1/4 of said Section 6, thence S. 00 03' 50" E. along the East line of said SW 1/4 a distance of 2648.43 feet to the SE Corner of said SW 1/4, said point also being the NE Corner of the NW 1/4 of Section 7, TOWNSHIP 18 SOUTH, RANGE 19 EAST, thence S. 00 07' 56" E. along the East line of said NW 1/4 a distance of 2648.76 feet to the SE Corner of said NW 1/4, thence N. 890 42' 40" W. along the South line of said NW 1/4, a distance of 2641.84 feet to the SW Corner of said NW 1/4, said point also being the SE Corner of the NE 1/4 of Section 12, TOWNSHIP 18 SOUTH, RANGE 18 EAST, thence S. 890 23' 09" W. along the South line of said NE 1/4 a distance of 1315.58 feet to the NE Corner of the W 2 of SE 1/4 of said Section 12, thence S. 00 09' 37" W. along the East line of said W 2 of SE 1/4, a distance of 2636.62 feet to the SE Corner of said W 2 of SE 1/4, thence S. 890 28' 48" W. along the South line of said Section 12, a distance of 1302.33 feet, thence N. 20 06' 48" W. 170 feet, thence S. 890 28' 48" W. parallel to said South line, a distance of 690.91 feet to a point on a curve, concaved Westerly, having a central angle of 900 and a radius of 280 feet, thence Northwesterly along the arc of said curve a distance of 246.92 feet to the P.T. of said curve (chord bearing and distance between said points being N. 250 46' 44" W. 238.99 feet), thence N. 510 02' 31" W. 2102.26 feet, thence N. 590 40' 08" W. 200 feet to the most Easterly Corner of lands described in Deed recorded in Official Record, Book 196, page 218, of said records, thence N. 510 02' 31" W. along the Northeasterly line of said lands, a distance of 449.63 feet to the most Northerly corner of said lands, said point being on the Southeasterly line of BEVERLY HILLS, UNIT NO. 3, according to the map or plat thereof recorded in Plat Book 4, page 123, public records of Citrus County, Florida, thence N. 380 58' 52" E. along the Southeasterly line of said BEVERLY HILLS, UNIT NO. 3, and along the Southeasterly line of BEVERLY HILLS, UNIT 3A, according to the map or plat thereof recorded in Plat Book 5, page 1, public records of Citrus County, Florida, a distance of 399.96 feet to the most Easterly corner of said BEVERLY HILLS, UNIT 3A, thence N. 510 02' 53" W. along the Northeasterly line of said BEVERLY HILLS, UNIT 3A, a distance of 1649.50 feet to the Point of Beginning; AND, Begin at the most Northerly Corner of BEVERLY HILLS, UNIT 3A, according to the map or plat thereof recorded in Plat Book 5, page 1, public records of Citrus County, Florida, said point being on the Southeasterly right-of-way line of County Road No. 491, and being 50 feet from, measured at right angles to, the centerline of said County Road No. 491, thence N. 380 56' 39" E. along said Southeasterly right-of-way line a distance of 4347.20 feet to the P.C. of a curve, concaved Northwesterly, having a central angle of 130 52' 45" and a radius of 5767.33 feet, thence Northeasterly along the arc of said curve a distance of 1397.06 feet to the P.T. of said curve, thence N. 250 03' 54" E. along said right-of-way line a distance of 1639.31 feet to the most Westerly Corner of lands described in Deed recorded in Official Record, Book 385, page 466, public records of Citrus County, Florida, thence N. 880 20' 30" E. along the boundary of said lands a distance of 400 feet, thence S. 10 39' 30" E. along the boundary of said lands a distance of 95.00 feet to a point that is 400 feet from, measured at right angles to, the Southeasterly right-of-way line of said County Road No. 491, thence S. 250 03' 54" W., parallel to said right-of-way line, a distance of 1734.33 feet to the P.C. of a curve, concaved Northwesterly, having a central angle of 130 52' 45" and a radius of 6167.33 feet, thence Southwesterly along the arc of said curve a distance of 1493.96 feet to the P.T. of said curve, thence S. 380 56' 39" W., parallel to and 400 feet from, said right-of-way line, a distance of 4347.25 feet to a point on the Northeasterly line of said BEVERLY HILLS, UNIT 3A, thence N. 510 02' 53" W. along said Northeasterly line a distance of 400 feet to the Point of Beginning. LESS AND EXCEPT lands in Warranty Deed from Beverly Hills Development Corporation, to Rolling Oaks Utilities, Inc., dated June 6th, 1986, filed August 18, 1986, and recorded in Official Record, Book 710, page 849, public records of Citrus County, Florida, being more particularly described as follows: Commence at the most Easterly Corner of BEVERLY HILLS, UNIT 3- A, according to the map or plat thereof recorded in Plat Book 5, page 1, public records of Citrus County, Florida, thence N. 510 02' 53" W. along the Northeasterly line of said BEVERLY HILLS, UNIT 3-A, a distance of 289.49 feet, thence N. 380 56' 39" E. 593.12 feet to the POINT OF BEGINNING, thence N. 750 59' 21" W. 62.48 feet, thence North 155.26 feet, thence N. 130 10' 38" E. 155.26 feet, thence N. 110 58' 12" W. 405.23 feet, thence N. 240 E. 244.86 feet, thence N. 600 E. 268.59 feet, S. 660 E. 336.93 feet, thence N. 720 E. 126.01 feet, thence S. 780 42' 12" E. 313.71 feet, thence S. 330 E. 317.81 feet, thence S. 110 13' 17" E. 237.44 feet, thence S. 460 05' 58" W. 238.07 feet, thence S. 670 37' 34" W. 481.20 feet, thence S. 550 W. 268.27 feet, thence N. 750 59' 21" W. 351.69 feet to the Point of Beginning, AND, LESS AND EXCEPT NORTH FOREST RIDGE BOULEVARD, according to the map or plat thereof recorded in Plat Book 14, pages 29, 30 and 31, public records of Citrus County, Florida, AND, LESS AND EXCEPT OAKWOOD VILLAGE OF BEVERLY HILLS PHASE ONE, according to the map or plat thereof recorded in Plat Book 14, pages 10 to 14 inclusive, public records of Citrus County, Florida, AND, LESS AND EXCEPT OAKWOOD VILLAGE OF BEVERLY HILLS, PHASE 2, according to the map or plat thereof recorded in Plat Book 14, pages 15 to 18 inclusive, public records of Citrus County, Florida, AND, LESS AND EXCEPT the N 2 and NE 1/4 of Section 6, TOWNSHIP 18 SOUTH, RANGE 19 EAST, AND, LESS AND EXCEPT that portion of Section 1, TOWNSHIP 18 SOUTH, RANGE 18 EAST, that lies North of the North boundary and West of a Northerly projection of the Easterly boundary of lands described in Official Record, Book 385, pages 466 and 467, public records of Citrus County, Florida. AND, LESS AND EXCEPT the lands in the attached legal descriptions, labeled as follows: Golf Course Greenside Unit 10 Phase 1 Unit 10 Phase 2 Unit 11 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 designated as initial members of the Board of Supervisors: Ronald J. Collins, Dale R. Miller, Taylor Collins, Paul Buchanan, and John O'Kelley. Specific Authority 120.53(1), 190.005 FS. Law Implemented 190.006(1) FS. History - New.
The Issue Whether Rule 27G-1.06(2) and Rule 27G-1.08(4), Florida Administrative Code, or either of them, is an invalid exercise of delegated legislative authority?
Findings Of Fact The parties have stipulated that Fairfield Communities, Inc. (Fairfield) has the requisite standing to challenge the rule provisions at issue and that Friends of Fort George, Inc., (Friends), Florida Wildlife Federation (FWF) and Florida Audubon Society (Audubon) have standing to participate as intervenors in support of these rule provisions. The Florida Land and Water Adjudicatory Commission (FLWAC) is the state agency that promulgated the challenged rules. The Fort George DRI case, No. 86-4127, began on August 1, 1986, when the Department of Community Affairs took an appeal of the development order entered by the City of Jacksonville on June 12, 1986 on grounds The MLUP does not accurately show or locate the DER jurisdictional line on the western side of the island from which buffer areas required by the ADO are to be measured . . . The MLUP does not properly or accurately depict or locate buffer areas surrounding the sloughs on the western side of Fort George Island. Exhibit B to the Prehearing Stipulation. Together with others, the Intervenors in the present case filed, in the Fort George DRI case, No. 86-4127, a motion to intervene as of right and request for consideration of additional issues on August 7, 1986. The intervenors in No. 86-4127 sought consideration of a wide range of issues in the Fort George DRI case, including questions concerning Blue Pond, the perimeter buffer zone, the interior habitat, weirs, berms, dikes and hydraulic connections, the adequacy of the water supply, the effect of the Game and Fresh Water Fish Commission's disapproval, the placement of various boundaries, and whether "Fairfield has failed to provide adequate protection of the microclimate and ecology of the Rollins Bird and Plant Sanctuary as mandated by the ADO . . ." Exhibit C to the Prehearing Stipulation. In filing their motion to intervene as of right and request for consideration of additional issues in No. 86-4127, Friends, Audubon and FWF expressly relied on Rule 27G-1.06, Florida Administrative Code. The portion under challenge here provides: (2) Motions to intervene filed with the Commission within 30 days of the filing of a notice of appeal may request the Commission to consider issues raised in the record below but not raised by the parties to the appeal. Rule 27G-1.06, Florida Administrative Code. In the order of transmittal, entered in No. 86-4127 on October 15, 1986, FLWAC denied consideration of every issue raised by the intervenors, except for the issue concerning the Rollins Bird and Plant Sanctuary, and added a related issue, also concerning the Rollins Bird and Plant Sanctuary, citing Rule 27G- 1.08, Florida Administrative Code. The portion of that rule under challenge here provides: Within 60 days of receipt of a notice of appeal, the Commission shall meet to review the issues raised by the parties. If the Commission determines that an issue of statewide or regional importance was not raised by the parties but is necessary to its disposition of the appeal, the Commission shall specify said issue and shall specify whether the issue shall be the subject of review based on the record made below, additional evidence or a combination thereof. New issues shall not be raised by the parties or other persons after this Commission meeting. At this meeting, the Commission may also dispose of procedural motions, including motions to intervene, which have been filed within 30 days of the filing of the notice of appeal. Rule 27G-1.08, Florida Administrative Code. Fairfield, as the applicant for the development order in No. 86- 4127, questions FLWAC's authority to promulgate rules that allow FLWAC to consider issues not raised by the party who took the DRI appeal, whether sua sponte or on motion of an intervenor.
Conclusions Based on the entire record in this matter, it is concluded that the evidence supports or meets each of the criteria listed in section 19o.005(1)(e), F.S. That all statements contained within the Petition as corrected at the hearing are true and correct. That the creation of the District is consistent with all applicable elements of the State Comprehensive Plan, the Brevard County Comprehensive Plan as amended, and the City of Rockledge Comprehensive Plan. That 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. That the District is the best alternative available for delivering community development services and facilities to the area that will be served by the District. That the community development services and facilities of the District will be compatible with the capacity and uses of existing local and regional community development services and facilities. That the area to be served by the District is amenable to separate special district government. DONE and ENTERED this 22nd day of January, 1991, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of January, 1991. APPENDIX APPENDIX A PETITIONER'S WITNESSES John R. Maloy The Viera Company 1802 South Fiske Boulevard Rockledge, Florida 32955 Fred Greene Gee & Jenson One Harvard Circle West Palm Beach, Florida 33409 Jack F. Glatting Glatting Lopez Kercher Anglin 33 East Pine Street Orlando, Florida 32801 Henry H. Fishkind, Ph.D. Fishkind & Associates, Inc. 507 North New York Avenue Suite 301 Winter Park, Florida 32789 Gary L. Moyer 10300 Northwest Eleventh Manor Coral Springs, Florida 33065 APPENDIX B LIST OF EXHIBITS AT HEARING Exhibit Description Composite exhibit of notice Petition to Establish the Viera East Community Development District as filed, with the exhibits: District Location Map Metes & Bounds Description Documentation of Ownership Map of Existing Uses Land Use Plan Existing Drainage Basins and Outfall Canals Estimated Infrastructure Cost Brevard County Comprehensive Plan City of Rockledge Comprehensive Plan Economic Impact Statement Designation of Agent Receipts for filing fee from City of Rockledge and Brevard County DRI Development Order for the Viera East Project -- Brevard County DRI Development Order for the Viera East Project -- City' of Rockledge Approved Brevard County Comprehensive Plan Amendments for Viera East DRI APPENDIX C MEMBERS OF THE PUBLIC John Fleming 944 Bridle Lane Rockledge, Florida Lee Wenner 1060 Matador Drive Rockledge, Florida Robert Preston 939 Bridle Place Rockledge, Florida Al Miller 26 South Hardee Circle Rockledge, Florida Janice Peterson 975 Beechfern Lane Rockledge, Florida APPENDIX D VIERA EAST COMMUNITY DEVELOPMENT DISTRICT CHAPTER 42 - VIERA EAST COMMUNITY DEVELOPMENT DISTRICT 42 - Creation. 42 - Boundary. 42 - Supervisors 42 - Creation. The Viera East Community Development district is hereby created. 42 - Boundary. The boundaries of the district are as follows: PARCEL 1 All of Section 27 and portions of Sections 22, 26, 28, 33, 34 and 35, Township 25 South, Range 36 East, and portions of Sections 2, 3, 4, 10 and 11, Township 26 South, Range 36 East, all in Brevard County, Florida, being more particularly described as follows: Commence at the Southeast corner of said Section 10 and run N00058'45"W along the East line of said Section 10, for a distance of 50.04 feet to the North right of way line of Wickham Road and the POINT OF BEGINNING of the following described parcel; thence S86240'00"W along said North right of bay line of Wickham Road 1,791.05 feet; thence continue along said North right of way line S89231'32"W for 1,232.48 feet to the East line of Official Records Book 876, Page 569 of the Public Records of Brevard County, Florida; thence N14232'54"W along said East line for 766.98 feet to the North line of said Official Records Book 876, page 569; thence S75227'06"W along said North line for a distance of 768.49 feet to the Easterly right of way line of Interstate 95; thence N26201'27"W along said Easterly right of way line for a distance of 745.31 feet; thence N14232'54"W along said Easterly right of way line for a distance, of 2,308.02 feet; thence N60244'50"E for 346.47 feet; thence N37249'35"E for 170.97 feet; thence N52208'55"E for 84.63 feet; thence N75227'05"E for 550.00 feet; thence N77247'23"E for 75.00 feet; thence S83203'16"E for 75.00 feet; thence S83200'14"E for 410.74 feet; thence N06259'46"E for 104.22 feet to a point on a curve concave to the North, having a radius of 813.27 feet and to which a radial line bears S01209'22"W; thence Easterly along the arc of said curve for 328.78 feet, through a central angle of 23209'46 to the point of tangency; thence N67259'36"E for 243.76 feet to a point lying 30.00 feet West of the Westerly right of way line of Murrell Road, (a 120.00 foot wide right of way), as described in Official Records Book 2953, Page 2101 of the Public Records of Brevard County, Florida; thence Northerly and 30.00 filet West of 25 said Westerly right of way line the following seven (7) courses: (1) thence N22000'24"W for 742.63 feet to the point of curvature of a curve concave to the East and having a radius of 1,235.92 feet; (2) thence Northerly along the. arc of said curve for 582.56 feet, through a central angle of 27200-24 to the point of tangency; (3) thence N05200'00"E for 468.53 feet to the point of curvature of a curve concave to the West, having a radius of 1,055.92 feet; (4) thence Northerly along the arc of said curve for 497.59 feet, through a central angle of 27200'00" to the point of tangency; (5) thence N22200'00"W for 1,399.77 feet to the point of curvature of a curve concave to the East, having a radius of 1,235.92 feet; (6) thence Northerly along the arc of said curve for 593.20 feet, through a central angle of 27230'00 to the point of tangency; (7) thence N05236'00"E along said line lying 30.00 feet West of the Westerly right of way line of Murrell Road and its Northerly extension thereof, said line being the Westerly right of way line of proposed Murrell Road (150.00 foot wide right of way) for a distance of 1,365.19 feet; thence run N84230'00"W for 600.00 feet, to the point of curvature of a curve to the left, having a radius of 640.00 feet and a central angle of 48208'20"; thence run Southwesterly, along said curve, an arc distance of 537.72 feet; thence run N42238'20"W, a distance of 493.95 feet; thence run N14233'28"W, a distance of 580.00 feet; thence S75226'32"W for a distance of 1437.64 feet to said Easterly right of way line of Interstate 95; thence N14232'54"W along said Easterly right of way line of Interstate 95 for a distance of 8,929.18 feet to the point of curvature of a curve concave to the Southwest, having a radius of 5,879.65 feet; thence Northwesterly along the arc of said curve and said Easterly right of way line, for a distance of 2,592.25 feet, through a central angle of 24223'02" to the North line of the Northwest 1/4 of Section 28, Township 25 South, Range 36 East; thence N89234'55"E along said North line 2,011.71 feet to the North 1/4 corner of said Section 28; thence N89235'49"E along the North line of the Northeast 1/4 of said Section 28 for a distance of 2,649.14 feet to the Southwest corner of, said Section 22; thence N89244'33"E along the South line of said Section 22, for a distance of 4,533.48 feet to the West line of lands described in Official Records Book 2237, Page 2896 of the Public Records of Brevard County, Florida; thence N00215'56"W along said West line of Official Records Book 2237, Page 2896 for a distance of 1,969.91 feet to the South right of way line of Barnes Boulevard; thence S89247'58"E along said South right of bay line of Barnes Boulevard for a distance of 800.00 feet to the East line of said Section 22; thence S00215'56"E along said East line of Section 22, for a distance of 1,963.51 feet to the Southeast corner of said Section 22, said corner also being the Northeast corner of Section 27, Township 25 South, Range 36 East, Brevard County, Florida; thence S00221'41"E along the East line of the Northeast 1/4 of said Section 27, for a distance of 2,659.87 feet to the Northeast corner of the Southeast 1/4 of said Section 27; thence 26 S00240'49"W along the East line of the Southeast 1/4 of said Section 27, for a distance of 2,181.04 feet; thence S38250'18"E for 1,283.83 feet; thence South for 1,950.00 feet; thence S40214'11"E for 170.29 feet; thence South for 1,020.00 feet; thence S40236'05"E for 322.68 feet; thence S39242'36"W for 383.47 feet; thence S01247'24"E for 160.08 feet; thence S56218'36"E for 396.61 feet; thence S60238'32"E for 91.79 feet; thence S03216'14"E for 350.57 feet; thence S40227'54"W for 467.47 feet to the South line of aforesaid Section 35, Township 25 South, Range 36 East, Brevard County, Florida; thence S88257'29"W along said South line of Section 35, for a distance of 1,034.11 feet to the Northeast corner of Section 3, Township 26 South, Range 36 East; thence S01017'09"W along the East line of said Section 3, for a distance of 1,245.78 feet to the Northeast corner of INDIAN RIVER COLONY CLUB, P.U.D., PHASE 2, UNIT 1, as recorded in Plat Book 34, Page 92 of the Public Records of Brevard County, Florida; thence S88235'03"W along the North line of said INDIAN RIVER COLONY CLUB, P.U.D., PHASE 2, UNIT 1, and along the North line of INDIAN RIVER COLONY CLUB, P.U.D. PHASE 1, UNIT 2, as recorded in Plat Book 34, Page 36 of the Public Records of Brevard County, Florida, for 2,634.30 feet; thence S88228'04"W along the North line of said INDIAN RIVER COLONY CLUB, P.U.D., PHASE 1, UNIT 2, and along the North lines of INDIAN RIVER COLONY CLUB, P.U.D., PHASE 1, UNIT 1, as recorded in Plat Book 34, Pages 31 and 32 of the Public Records of Brevard County, Florida and INDIAN RIVER COLONY CLUB, P.U.D., PHASE 1, UNIT 3, as recorded in Plat Book 35, Page 91 of the Public Records of Brevard County, Florida, for a distance of 883.63 feet to the Easterly right of way line of Murrell Road, as recorded in Official Records Book 2953, Page 2101 of the Public Records of Brevard County, Florida; thence for the following seven (7) courses along said Easterly right of way line: (1) S05230'00"W for 785.19 feet to the point of curvature of a curve concave to the East, having a radius of 1,085.92 feet; (2) thence Southerly 521.20 feet along the arc of said curve through a central angle of 27230'00" to the point of tangency; (3) thence S22200'00"E for 1,399.77 feet to the point of curvature of a curve concave to the West, having a radius of 1,205.92 feet; (4) thence Southerly 568.28 feet along the arc of said curve, through a central angle of 27200'00" to the point of tangency; (5) thence S05200'00"W for 468.53 feet to the point of curvature of a curve concave to the East, having a radius of 1,085.92 feet; (6) thence Southerly 511.85 feet along the arc of said curve through a central angle of 27200'24" to the point of tangency; (7) thence S22200'24"E for 592.63 feet to the point of curvature of a curve concave to the Northeast, having a radius of 50.00 feet; thence Southeasterly 78.54 feet along the arc of said curve, through a central angle of 90200'00" to the point of tangency; thence N67259'36"E for 423.19 feet to the point of curvature of a curve concave to the South, having a radius of 960.00 feet; thence Easterly 318.71 feet along the arc of said curve, through a central angle of 19201'19 to the point of 27 tangency; thence N87200'55"E for 221.13 feet; thence N02259'05"W for 692.95 feet to the South line of INDIAN RIVER COLONY CLUB, P.U.D., PHASE 2, UNIT 4, as recorded in Plat Book 35, Pages 65 thru 67 of the Public Records of Brevard County, Florida; thence N86030'29"E along said South line of said INDIAN RIVER COLONY CLUB, P.U.D., PHASE 2, UNIT 4, for a distance of 1,620: .78 feet to the Southwest corner of said Section 2; thence N01217'32"E along the West line of said Section 2, for a distance of 2,506.96 feet to the North line of the West 1/2 of the Southwest 1/4 of said Section 2; thence N87227'20"E along said North line of the West 1/2 of the Southwest 1/4 of Section 2, for a distance of 1,347.22 feet to the East line of the West 1/2 of the Southwest 1/4 of said Section 2; thence S00255'23"W along said East line of the West 1/2 of the Southwest 1/4 of Section 2, for a distance of 2,563.88 feet to the Southeast corner of the West 1/2 of the Southwest 1/4 of said Section 2, said Southeast corner also being the Northeast corner of the Northwest 1/4 of the Northwest 1/4 of Section 11, Township 26 South, Range 36 East; thence, S00231'25"E along the East line of said Northwest 1/4 of the Northwest 1/4 of Section 11, for a distance of 1,336.40 feet to the South line of said Northwest 1/4 of the Northwest 1/4 of Section; 11; thence N89231'57"W along said South line 1,350.78 feet to the Southwest corner of said Northwest 1/4 of the Northwest 1/4 of Section 11, said corner being on the East line of said Section 10; thence S00258'45"E along said East line of Section 10, for a distance of 1,322.94 feet to the East 1/4 corner of said Section 10; thence continue along said East line S002058'45"E for 541.60 feet to the North line of lands described in Official Records Book 2812, Page 2063 of the Public Records of Brevard County, Florida; thence for the following eight (8) courses along the Northerly line of said lands described in Official Records Book 2812, Page 2063: (1) S87255'44"W for 650.12 feet; (2) thence S00258'45"E for 288.82 feet; (3) thence S59001'15"W for 245.81 feet; (4) thence N88024'23"W for 501.94 feet; (5) thence S59001'15"W for 503.09 feet; (6) thence S00258'45"E for 575.00 feet; (7) thence S44201'15"W for 159.04 feet; (8) thence S87255'44"W for 359.20 feet to the East right of way line of said Murrell Road; thence S12228'28"E along said East right of way line 152.51 feet to the South line of said lands described in Official Records Book 2812, Page 2063; thence N87255'44"E along said South line for 2,241.61 feet to the East line of said Section 10; thence S00258'45"E along said East line 600.08 feet to the POINT OF BEGINNING, said lands containing 2,790.73 acres, more or less. TOGETHER WITH THE FOLLOWING DESCRIBED PARCEL 2 A parcel of land lying in Section 33, Township 25 South, Range 36 East, Brevard County, Florida, more particularly described as follows: Commence at the Northwest corner of Section 28, Township 25 South, Range 36 East, Brevard County, Florida; thence N89234'55"E along the North line of said Section 28, a distance of 236.62 feet to the Westerly right of way line of Interstate 95, (a 300.00 foot wide right of way), and a point of intersection with a non-tangent curve, concave Southwesterly, having a radius of 5,579.65 feet and a central angle of 26252'46"; thence Southeasterly along said Westerly right of way line and along the arc of said curve to the right, a distance of 2,617.62 feet, (said arc subtended by a chord which bears S27259'17"E a distance of 2,593.68 feet) to a point of tangency; thence S14232'54"E along said Westerly right of way line, a distance of 3,416.81 feet to the POINT OF BEGINNING of the herein described parcel; thence continue along said Westerly right of way line S142032'54"E, a distance of 4,994.84 feet; thence N15241'39"W a distance of 1,203.33 feet to the point of curvature of a curve to the left, having a radius of 1,051.92 feet, a central angle of 35221'15"; thence North Westerly along the arc of said curve, an arc length of 649.08 feet to the point of tangency of said curve; thence N51202'54"W, a ,distance' of 978.47 feet to the point of curvature of a curve to the left, having a radius of 1,051.92 feet, a central angle of 33200'00"; thence Westerly along the arc of said curve, an arc length of 605.86 feet to the point of tangency of said curve; thence N84202'54"W a distance of 136.38 feet; thence N88202'54"W a distance of 76.74 feet; thence N01257'06"E a distance of 247.75 feet; thence S88202'54"E a distance of 600.00 feet; thence N43230'28"E a distance of 193.49 feet; thence N21215'19"E, a distance of 750.65 feet to the point of curvature of a curve to the left, having a radius of 1,051.92 feet, a central angle of 31248'13"; thence Northerly along the arc of said curve, an arc length of 583.89 feet to the Point of Tangency of said curve; thence N102032'54"W, a distance of 652.65 feet to the POINT OF BEGINNING, parcel contains 35.03 acres, more or less. 42 - Supervisors. The following five persons are designated as the initial members of the Board of Supervisors: Jack Maloy, Don Spotts, David Duda, Tracy Duda and Gordon P. Masterson. COPIES FURNISHED: Douglas M. Cook, Director Florida Land and Water Adjudicatory Commission Office of the Governor Office of Planning and Budgeting 419 Carlton Building Tallahassee, FL 32399-0001 Wade L. Hopping, Esquire Cheryl G. Stuart, Esquire Hopping, Boyd, Green & Sams P.O. Box 6526 Tallahassee, FL 32314
Findings Of Fact On July 31, 1987, DOA mailed a Request for Proposal, (RFP), to various Health Maintenance Organizations, (HMOs), soliciting proposals for the providing of HMO services in the Orlando service area. Petitioner, Cigna, and the various Intervenors herein, submitted proposals which were opened by DOA on August 28, 1987, with a contemplated date of award of September 14, 1987 and an effective date of contract on January 1, 1988. Section 2 of the RFP defined the general purposes of the procurement as being to meet benefit objectives of DOA and to provide high quality benefits and services to state employees. Specifically, the objectives of the RFP were: A proactive approach to cost containment, including an emphasis on aggressive claims management, utilization review, and superior statistical reporting. Quality medical care which encourages health promotion, disease prevention, early diagnosis and treatment. Stability in the financial structure of offered health plans. Professional, high quality service in all administrative areas including claims processing, enrollment, membership services, grievances, and communications. Competitive premium rates which take into account the demographics and, if appropriate, the claims experience of state employees. Other stated objectives included: Have each county or contiguous group of counties be considered one service area. Award no more than two contracts per service area; however, the awards will be based on the HMO's ability to respond to the needs of employees and on accessibility by employees. Have reciprocal agreements between locations, if an HMO has multiple service areas. Enter into a two year, non-experience rates contract. A provision will be included tying renewal action at each of the two renewals to the consumer price index, (CPI), for medical care services. In order to be considered as a "qualified" proposer, an organization had to be licensed by the Department of Insurance pursuant to Part II, Chapter 641, Florida Statutes. Section IX of the RFP listed five major criteria for evaluation of the proposals. They were: Premium Cost Extensiveness of service area - by county and/or contiguous counties. Plan Benefits as follows: Covered services Limitations and exclusions Co-payments, deductibles, and coinsurance features Range of providers including specialists and numbers of hospitals D. Out of service area coverage F. Grievance procedures Accessibility as follows: Reciprocal agreements Provider locations Number of primary care physicians and specialists, in relation to membership Completeness of proposals The first four of the above objectives were called for by the Legislative action providing for these procurements to be effective January 1, 1988. The fifth, completeness of proposals, was not identified by the Legislature but was added by DOA. The Department reviewed and evaluated all the proposals submitted by Petitioner and the various Intervenors. Each proposer was evaluated by three individual evaluators. Two separate sets of evaluations were performed; the second coming upon the direction of the Secretary who, after the first evaluation and recommendation of award, concluded the standards for evaluation had been too subjective and directed a second evaluation utilizing more objective standards. During this second evaluation process, after the actual evaluations had been done but before the recommendation was forwarded to the Secretary, several computer treatments of the raw scores were accomplished by Mr. Nye because of additional unidentified factors brought to his attention. The final computer run identified that Central Florida Physicians, not a party to this action, received the highest point total followed by Health Options, Pru-Care, and Petitioner, Cigna. Mr. Nye, who had designed and supervised the evaluation process, recommended to the Secretary that Central Florida Physicians, Health Options, and Pru-Care receive the award even though the guidelines called for only two recommendees. Central Florida Physicians was recognized to be in financial difficulties though it received the highest rating, and in order to provide two viable candidates in the event that provider should be disqualified, Health Options and Pru-Care were added. Central Florida Physicians was, in fact, subsequently disqualified due to financial insolvency. This left Health Options and Pru-Care as the two providers with the highest evaluations and the Secretary made the award to them. At the final count, Health Options received a point total of 64.635; Pru-Care, 57.415; and Cigna, 56.83, or a difference of .585 between Pru-Care and Cigna. According to Mr. Black, an administrator with the Department of Insurance and responsible for the licensing of HMOs and other health care facilities, as of January 12, 1988, Pru- Care was not licensed in Volusia or Lake Counties and department records show that Pru-Care has never been or requested to be licensed in those counties. Mr. Beckerink, the Director of Planning for Cigna of Florida, who oversaw Cigna's proposal for the Orlando area and who reviewed DOA's evaluation of the various proposals submitted, carefully examined the evaluation forms for both Cigna and Pru- Care and concentrated on scores relating to costs, benefits, accessibility, service area, and completeness. He noted that Pru-Care received 10 points for proposing service in Orange, Seminole, Osceola, Lake, and Volusia Counties though it is not licensed in the latter two, whereas Cigna received only 4 points for Orange and Seminole Counties. Cigna is licensed in all five counties and has hospitals and physicians in Seminole, Osceola, and Orange Counties. He contends Pru-Care received credit by the evaluators for five counties when it is licensed only in three, an unearned award of 4 points, and Cigna was awarded credit for only two counties when it is licensed in five, an improper denial of 6 points. According to Mr. Nye, the award to Pru-Care was based on its representation it would provide service in five counties. The Department of Insurance could not tell him, at the time, in which counties Pru-Care was licensed. As a result, he took the proposal, which indicated the five counties, at face value. Credit was given only for full counties to be served and Cigna's proposal indicated it would deliver service to two full counties and to only portions of three counties. The evidence indicates that Pru-Care's facilities are primarily in Orange and Seminole Counties with some service offered in the extreme northern portion of Osceola County, too far away for those individuals living in the southern portion of that county reasonably to take advantage of it. Mr. Nye indicates that driving time, which would be the problem here, is not a consideration in assessing accessibility, but merely a factor in quality of service. The department is not concerned with whether it is convenient for the employee to get to the service but merely whether the service will be offered to anyone residing in the county. For this reason, Pru-Care was awarded credit for Osceola county since it proposed to enroll any eligible employee living in the county whether service was convenient to that party or not, whereas Cigna, which limited it's enrollment in certain counties to those personnel living in only a part of the county, was not given any credit for those partially served counties. Mr. Nye admits that had he known Pru-Care was not fully licensed, he would have deferred to legal counsel, but would most likely not award points if a provider is not licensed in a county for which it proposes service. Mr. Breckerink identified additional areas in the evaluation wherein he believes errors were made, the correction of which would result in an adjustment of the award of points. For example, in evaluating plan benefits, the evaluator gave Pru- Care 20 points when only 10 points are available for award without a demonstration of additional services. For emergency room availability, Cigna was awarded 5 points when it should have received 10. In the area of co- payments, Cigna was awarded points and should have received 23. Concerning range of providers, Cigna's proposal lists seven hospitals yet the evaluation form only reflects six, resulting in a shortage of 10 points. As to turnaround time, Cigna indicated it would accomplish payment in 60 days whereas Pru-Care indicated it would in "an average" of two weeks. As a result, Mr. Breckerink, who points out Cigna's actual time is 30 days and it therefore should have been given 30 points, contends there is no opportunity for a valid comparison here since Pru-Care's answer is not responsive to the RFP's call for" an "expected" time. His point is well taken. With regard to accessibility, Mr. Breckerink states that Cigna got only 20 points for its two allowed counties but should have received 30 points since it has hospitals in three counties in the service area. DOA's rationale on this point is identical to that on the issue of full counties served. He also alleges that Cigna was shortchanged by at least 2 points on the number of counties in which specialty providers are represented and by at least 1 point on the number of providers. Mr. Nye admits Pru-Care should have received 5 points instead of 10 for benefits. This would reduce its' raw score in this area from 258 to 253 points. Nye contends, however, that the points awarded Pru-Care for its' turnaround time were correct. He does not consider the question to be a bad one since it was asked equally of all providers and each responded as it saw fit realizing that its response might become a part of a contractual obligation. This reasoning is specious at best and does not address the real question of the fairness and appropriateness of the question asked. Further, Mr. Nye also admitted that under certain circumstances, if Pru-Care were to lose credit for those two counties in which it was not shown to be licensed, the change could result in a difference sufficient to reverse the relative standings of Pru-Care and Cigna. Mr. Breckerink alleges, and Mr. Nye admits that multiple computer runs were made utilizing the raw scores developed by the evaluators before the recommendation as to award was forwarded to the Secretary. On the first run for the second evaluation, Cigna was in second place with a point total of 71.1 and Pru-Care was third with 65.86 points. On the second run, which Nye contends was done to make the computer run consistent with what had been said at the pre-bid conference and in the RFP, Cigna dropped from second place to third with 58. 2 points and Pru-Care went from third to fourth with 57.195 points. In the third run, which ultimately formed the basis for the award, the positions of Cigna and Pru-Care reversed with Cigna dropping to 56.83 points and Pru-Care rising to 57.415. Central Florida Physicians remained in first and Health Options in second. When Central Florida Physicians dropped out due to insolvency, Health Options became number one and the other two each went up one place in the standings without changing relative positions. According to Mr. Breckerink when the mistakes were identified and changes made in the raw scores, Cigna got a total of 23 more points but Pru-Care still got 16 more points than it should have. He contends that if the mistakes were accurately corrected, if Cigna were to get all the points it should and Pru- Care lose all it should not legitimately have, Cigna would come out higher in the overall ranking than Pru-Care. However, he admits there are factors involved about which he does not know which may affect the standings. What is clear is that while Mr. Breckerink could not clearly follow the evaluation procedure, neither can others charged with evaluating it. What is more, notwithstanding the direction given in the objectives of the procurement that only two providers be awarded contracts, the department continuously has been unable to abide by this guideline. In its September 11, 1987 recommendation after the first evaluation sequence, Mr. Nye recommended, for the Orlando service area, awards to Central Florida Physicians, Cigna, and Pru-Care for a part of the service area and an additional award to Health Options and Florida Health Care for other counties in the service area. When the Secretary directed the objective second evaluation, no change was made to the number of providers to be recommended (two), but again, on October 6, 1987, Mr. Nye recommended three providers, Central Florida Physicians, Health Options, and Cigna. No evidence was presented as to why this recommendation was not implemented, but it is seen that on October 26, 1987, Mr. Nye submitted his third set of recommendations to the Secretary, this time recommending only Central Florida Physicians, and Health Options. Being still unable to finalize the process, on October 30, 1987, Mr. Nye submitted his fourth set of recommendations to the Secretary recommending, for the most part, three providers, but specifically recommending Pru-Care for award in Lake and Volusia Counties, where it was arguably not even licensed. No justification or explanation for this vacillation was forthcoming from the Department and the exercise appears to have been clearly capricious.
Recommendation In view of the foregoing, it is, therefore: RECOMMENDED that the Department of Administration issue a Final Order rejecting all proposals submitted for the Orlando service area and readvertise for new proposals if deemed appropriate. RECOMMENDED this 19th day of April, 1988 at Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of April, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-5525BID The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. By Petitioner Cigna: 1 - 5. Accepted and incorporated herein. First sentence not a Finding of Fact. Second sentence accepted except for conclusion as to legal license status of Pru-Care. Rejected as a restatement of testimony and not a Finding of Fact. First three sentences rejected as restatements of testimony. Balance accepted with the assumption that "those counties" indicates Lake and Volusia counties. First and second sentences rejected as restatements of testimony. Third sentence accepted. Accepted and incorporated herein. First and second sentences rejected as restatements of testimony. Third sentence accepted as a possibility and, not a fact. First sentence accepted and incorporated herein. Second sentence rejected. Accepted. Accepted. Accepted and incorporated herein. Accepted except for use of word "awarded" in last sentence. Award is a function of the Secretary. A better word would be "recommended". Accepted. Reject Accepted. Rejected. Accepted except for word "significantly". First sentence accepted. Second sentence rejected as not being a proper Finding of Fact. For Respondent, DHRS: 1 - 14. Accepted and incorporated as appropriate. 15 - 16. Accepted. 17 - 19. Accepted. First, second, and fourth sentences accepted. Third sentence rejected as not supported by the evidence. Accepted. Accepted. Accepted except for the last three sub-paragraphs which are not supported by the evidence. Absent. 25 - 26. Accepted except for last sub-paragraph which is rejected as a conclusion. 27. Absent. 28 - 29. Accepted. 30. Accepted. 31 - 37. Absent. 38. Accepted. For Intervenor, Pru-Care: 1 & 2. 3. Rejected as a restatement of testimony and not a Finding of Fact. Accepted. 4 - 5. Accepted. 6 - 7. Rejected as not being a Finding of Fact. 8 - 10. Accepted. 11. Accepted. 12. Rejected as not being a Finding of Fact. 13 - 14. Accepted. 15. Rejected as not being a Finding of Fact except for 16 - 17. last sentence which is accepted. Accepted. 18. Accepted. For Intervenor, Health Options: 1 - 3. Accepted and incorporated herein. 4 - 10. Accepted and incorporated herein. 11. Accepted except for the seventh sentence which is rejected. 12 - 13. Accepted. 14. Rejected as contra to the weight of the evidence. 15 - 16. Accepted. COPIES FURNISHED: David Yon, Esquire 315 South Calhoun Street Suite 800 Tallahassee, Florida 32301 Augustus D. Aikens, Jr., Esquire General Counsel Department of Administration 435 Carlton Bldg. Tallahassee, Florida 32399 John Buchanan, Esquire 118 South Monroe Street Tallahassee, Florida 32301 Jann Johnson, Esquire Post Office Box 391 Tallahassee, Florida 32302 J. Stanley Chapman, Esquire Ervin, Varn, Jacobs, Odom, & Kitchen Post Office Drawer 1170 Tallahassee, Florida 32302 Larry Carnes, Esquire 515 East Park Avenue Tallahassee, Florida 32301 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
The Issue The issue before the Florida Land and Water Adjudicatory Commission (FLWAC) in this proceeding is whether to grant the Petition to Establish the Pioneer Community Development District (Petition). The local public hearing was for purposes of gathering information in anticipation of quasi-legislative rulemaking by FLWAC.2
The Issue The ultimate issue to be resolved at this stage of the proceedings is whether the petition for hearing submitted by RCID was filed in a timely manner. RCID contends that it was entitled to receive actual notice of the application proceeding and to be afforded a point of entry into a formal administrative proceeding. RCID asserts that its petition for formal hearing was filed within the specified period following actual receipt of notice. CFU and the Department contend that actual notice was not required. To the extent that RCID was entitled to actual notice, they contend that it was provided. CFU and the Department assert that the petition for hearing was not filed within the specified time period following receipt of constructive or actual notice.
Findings Of Fact On or about August 2, 1982, CFU filed a permit application with the Department. CFU is seeking a permit that would allow it to modify an existing sewage treatment facility and to discharge effluent from the facility into Bonnet Creek. The proposed facility would be located west of the town of Kissimmee in Osceola County, Florida. RCID is a special tax district. Its boundaries include portions of Osceola and Orange Counties. The facility proposed by CFU is not located within the boundaries of RCID. The point where effluent would be discharged, however, is within the boundaries of RCID. On September 30, 1976, RCID and the Department entered into a Local Program Agreement. The agreement designates RCID as an officially approved local program of the Department in accordance with the provisions of Section 403.182, Florida Statutes. The agreement has remained in effect since its execution. Paragraph 1.4 of the agreement provides: The local programs shall be advised of all applications submitted within the District and drainage areas shown in the Exhibit 1 attached hereto for federal grant assistance, construction, modification, or expansion of any pol- lution control or wastewater treatment system and may submit on a timely basis to the department appropriate recommendations concerning such appli- cations. In Paragraph 2.0, the agreement provides that RCID shall participate in the administration of the Department's permit system within the District's boundaries by, among other things, submitting comments regarding the construction and operation of any domestic or solid waste treatment facilities. Prior to the filing of its application, CFU engaged in lengthy negotiations with Department personnel and filed at least one "Preliminary Application." RCID officials became aware of these negotiations and on July 21, 1981, submitted a letter to the Department specifically requesting that it be notified of any applications to discharge into waters lying within the District. In its letter, RCID Specifically expressed concern about CFU's plans which were being prepared by Boyle Engineering Corporation. During February and March, 1982, representatives of RCID discussed the CFU proposals with CFU and Boyle Engineering representatives. On April 1, 1982, RCID representatives met with personnel of the Department, expressed continued concern about CFU's plans, and specifically requested to be notified if CFU filed a formal application with the Department. After CFU submitted its formal application, the Department requested further data, and on or about September 23, 1982, issued a letter giving notice of the Department's intent to issue the permit. In its letter, the Department directed CFU to publish a "Notice of Proposed Agency Action" in the legal advertisement section of a newspaper of general circulation in the county where the proposed activity is located. The notice of intent letter was directed to CFU, and copies were sent to the Department's Office of General Counsel, the Osceola County Engineer, the Osceola County Health Department, an engineer with Boyle Engineering Corporation, RCID, and the director and general manager of RCID. Copies of the notice of intent letter were sent to all of these persons on September 23, 1982. Each of these persons, except RCID and the director and general manager of RCID, received copies of the intent letter shortly after September 23, 1982. Copies of the intent letter that were forwarded to RCID and to the director and general manager of RCID were forwarded to Post Office Box 36, Lake Buena Vista, Florida. The notices were not returned to the Department. Insufficient evidence was offered to rebut the presumption that the notice that was mailed to RCID was delivered to that post office box. Mail that is delivered to the RCID post office box in Lake Buena Vista is picked up by a person who is a joint employee of RCID and Walt Disney World, the principal landowner within RCID. This person is responsible for delivering mail to the RCID offices. The mail is placed on the desk of the RCID receptionist. The receptionist then directs mail to the appropriate addressee. The notice of intent letter was not received by the RCID receptionist. There was no evidence, however, as to the practices of the person or persons who pick up mail at the Lake Buena Vista post office box and deliver it to the RCID offices. The law indulges a presumption that items placed in the mail are delivered. It is thus presumed that the intent letters forwarded to RCID by the Department were delivered to the Lake Buena Vista post office box. There is no evidence from which it could be concluded what then happened to the notices other than that they did not ultimately reach RCID's office. CFU published the "Notice of Proposed Agency Action" as instructed by the Department in a newspaper of general circulation in Osceola County, Florida, on September 29, 1982. The notice, as appended to the intent letter, provided that substantially affected persons could request a hearing and that the request should be filed in the Office of General Counsel of the Department within fourteen days of publication of the notice. No such requests were filed, and the Department accordingly issued the permit to CFU on October 15, 1982. A copy of the permit was forwarded to RCID and received at the RCID offices on or about October 20, 1982. RCID filed a request for hearing within fourteen days of receiving a copy of the permit. The request for hearing was filed, however, more than fourteen days after the date that the intent letter was delivered to the RCID post office box in Lake Buena Vista, and more than fourteen days after the notice of proposed agency action was published in the newspaper.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of Central Florida Utilities, Inc. for a construction permit as described in the agency's proposed action dated March 29, 1984, be DENIED. DONE and ORDERED this 15th day of January, 1985, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of January, 1985.
The Issue Whether Policy 20.11.1 of Goal 20: Transportation, of Rule 29H-9.002, Florida Administrative Code, (hereinafter referred to as the "Challenged Rule"), constitutes an invalid exercise of delegated legislative authority?
Findings Of Fact The Petitioners. Pasco is a political subdivision of the State of Florida. Its offices are located at 705 East Live Oak, Dade City, Florida. BAGT is an association. BAGT's approximately 697 members are involved in some manner in the development or building industry in the Tampa Bay region. For the most part, BAGT's members reside and own property within the four-county jurisdiction of the TBRPC. BAGT's membership includes approximately 176 builder and developer members and 520 associate members who are subcontractors, material suppliers, financial institutions, engineering firms, architectural firms and other types of firms that provide goods and services related to the building industry. BAGT's membership includes builders who build in "development of regional impact" (hereinafter referred to as "DRI"), projects and associate members who provide construction support services to DRI projects. During an eighteen month period, over 50 percent of the building permits issued in Hillsborough County were issued to twenty-three BAGT builder- members for DRI projects. This amounts to approximately 3.3 percent of the membership of BAGT. BAGT works on behalf of its membership to promote a strong and viable building industry. BAGT has the responsibility to "work for the elimination of governmental orders improperly restricting the home building industry and to support beneficial directives." Certificate of Reincorporation and By-Laws, BAGT exhibits 5 and 6. BAGT members have to consider the levels of service for transportation of local governments and TBRPC in obtaining permits for DRI projects. If more stringent levels of service are required for a project, the development may be prolonged and be more costly to complete. The City is a political subdivision of the State of Florida. The City's offices are located at 315 East Kennedy Boulevard, Tampa, Hillsborough County, Florida. The City and Pasco are located within the jurisdiction of TBRPC. The Petitioners are all substantially affected by the Challenged Rule. The Respondent. TBRPC is an agency of the State of Florida within the definition of the term "agency" contained in Section 120.52(1)(b), Florida Statutes. TBRPC was created pursuant to Section 186.504, Florida Statutes. TBRPC's offices are located at 9455 Koger Boulevard, St. Petersburg, Pinellas County, Florida. TBRPC's geographic boundaries, which generally include the four- county, Tampa Bay region, include the geographic areas within Department of Transportation Districts one and seven. TBRPC does not build or maintain roads. Nor does TBRPC provide funds to those that are responsible for building or maintaining roads. Comprehensive Regional Policy Plans. Pursuant to Section 186.507, Florida Statutes, all regional planning councils, including the TBRPC, are required to adopt a "comprehensive regional policy plan". Among other things, the comprehensive regional policy plan must include the following: (8) Upon adoption, a comprehensive regional policy plan shall provide, in addition to other criteria established by law, the basis for regional review of developments of regional impact, regional review of federally assisted projects, and other regional overview and comment functions. As required by Section 186.507(1), TBRPC has adopted a comprehensive regional policy plan, Rule 29H-9.002, Florida Administrative Code, Future Of The Region, A Comprehensive Regional Policy Plan for the Tampa Bay Region. The comprehensive regional policy plan was adopted in 1987, and has been amended in 1988, 1990 and 1991. Although in adopting a comprehensive regional policy plan a regional planning council is required to consider state and local plans and local governments are given an opportunity to comment, the regional planning council is not bound by those plans or comments. Section 186.507(4)-(6), Florida Statutes. TBRPC's comprehensive regional policy plan was adopted before some of the local government comprehensive plans in its region were promulgated. TBRPC interprets Sections 186.507(1) and (8), Florida Statutes, to require that it include the criteria it intends to use in its review of a DRI. The Department of Community Affairs has been designated by the Executive Office of the Governor to review comprehensive regional policy plans and amendments. See Section 186.507(2), Florida Statutes. The Department of Community Affairs reviewed TBRPC's comprehensive regional policy plan. Developments of Regional Impact. Part of the responsibility assigned to regional planning councils, including TBRPC, is the responsibility to review DRIs. Section 380.06, Florida Statutes. DRIs are created and regulated in the Florida Environmental Land and Water Management Act, Sections 380.012-380.10, Florida Statutes. DRI is defined in Section 380.06(1), Florida Statutes. The procedure for reviewing DRI applications is set out in Section 380.06, Florida Statutes. Several government agencies are involved in the review process, including TBRPC. The Department of Community Affairs is required to, among other things, adopt rules governing the review of DRI applications. Section 380.06(23)(a), Florida Statutes. Pursuant to this authority, the Department of Community Affairs has adopted Chapter 9J-2, Florida Administrative Code. These Rules wee promulgated to "ensure uniform procedural review of developments of regional impact by [the Department of Community Affairs] and regional planning agencies under this section." Section 380.06(23)(a), Florida Statutes. The Bureau of State Planning is the bureau of the Department of Community Affairs with primary responsibility for administering Chapter 380, Florida Statutes, to the extent of the Department of Community Affairs' involvement. Regional planning councils, including the TBRPC, are required to review all DRI applications involving developments in their regions. Section 380.06(12), Florida Statutes, requires that regional planning councils issue a report and make recommendations concerning the impact of proposed DRIs. Regional planning councils, while subject to any rules governing DRI review adopted by the Department of Community Affairs, are authorized to adopt additional rules concerning their review of DRI applications. Section 380.06(23)(c), Florida Administrative Code. Those rules, however, must not be "inconsistent" with the rules governing DRI review adopted by the Department of Community Affairs. TBRPC interprets Section 380.06(23)(c), Florida Statutes, as authorizing the Challenged Rule. What is "inconsistent" for purposes of Section 380.06(23)(c), Florida Statutes, is not specifically defined. Ultimately, the decision on a DRI application is made by the local government in which the DRI is located. Section 380.06(15), Florida Statutes. In making that decision the local government is required to consider the local government's comprehensive plan and land development regulations, the State Comprehensive Plan and the report and recommendations of the regional planning council. Section 380.06(14), Florida Statutes. Local governments are governed by the provisions of Section 380.06(15), Florida Statutes, in determining whether to issue a DRI. A local government's decision on a DRI application may be appealed to the Florida Land and Water Adjudicatory Commission (hereinafter referred to as "FLWAC"). Section 380.07, Florida Statutes. The final decision on the DRI application, if an appeal is taken, is made by FLWAC after a formal administrative hearing is conducted pursuant to Chapter 120, Florida Statutes. Regional planning councils have the right to appeal a local government's decision. In determining whether a DRI should be granted, local governments are not bound by any of the comments made by the regional planning council that reviewed the DRI application. They are only required to consider the comments of the regional planning council made pursuant to Section 380.06(12), Florida Statutes. Should the local government fail to adequately take into account the comments of the regional planning council, however, it faces the possibility that the regional planning council will appeal the local government's decision on a DRI application to FLWAC. The Role of Comprehensive Plans in DRI Reviews; Establishing Levels of Service. The local government comprehensive plan and the land development regulations which a local government is required to consider when reviewing a DRI application are required by Part II of Chapter 163, Florida Statutes. Every local government in Florida is required by Section 163.3167, Florida Statutes, to adopt a comprehensive plan. Land development regulations governing the issuance of development orders are required by Section 163.3202, Florida Statutes. In the TBRPC region the comprehensive plans of all local governments, except St. Petersburg Beach and Port Richey, have been found by the Department of Community Affairs to be in compliance with Chapter 163, Florida Statutes. Among other things, each comprehensive plan must provide for transportation facilities within the local government's geographic area. Section 163.3177, Florida Statutes. The Legislature has required that local governments specifically establish levels of service for public facilities in their comprehensive plans. Section 163.3177(10)(f), Florida Statutes. See also Rule 9J-5.005(3), Florida Administrative Code. A "level of service" for a road is the quantification of the quality of travel on the road expressed by letter grades rating from an optimal operating condition of "A" to a rating of unstable operational conditions of "F". Local governments are required by Section 380.06(14), Florida Statutes, to insure that a development is consistent with its comprehensive plan. Therefore, it must insure that a DRI is consistent with the levels of service contained therein. See also Section 163.3194, Florida Statutes. The Florida Department of Transportation has also been specifically authorized to establish levels of service for state roads. Sections 334.044(10) and 336.45, Florida Statutes. The Department of Transportation has adopted Chapter 14-94, Florida Administrative Code, establishing levels of service for its use. The Department of Community Affairs has required that levels of service contained in local comprehensive plans be compatible with Department of Transportation levels of service "to the maximum extent feasible". Rule 9J- 5.0055(1)(d), Florida Administrative Code. The Legislature has not specifically required or authorized regional planning councils to adopt levels of service. Nor has the Legislature specifically prohibited regional planning councils from adopting levels of service. The City's and Pasco's Comprehensive Plans. Pasco's comprehensive plan has been adopted and in compliance since June, 1989. In its comprehensive plan, Pasco has included levels of service for State roads which are compatible with those established by the Department of Transportation. Pasco uses the levels of service contained in its comprehensive plan to review DRI applications. The City adopted its comprehensive plan by Ordinance No. 89-167, in July, 1989. The City's comprehensive plan has been found to be in compliance with Chapter 163, Florida Statutes. The City's comprehensive plan contains transportation levels of service in its Traffic Circulation Element. The City uses the levels of service contained in its comprehensive plan to review DRI applications. The Challenged Rule. Pursuant to Section 186.507(1), Florida Statutes, TBRPC is required to include in its comprehensive regional policy plan regional issues that may be used in its review of DRI applications and the criteria TBRPC intends to rely on in its review. As part of its comprehensive regional policy plan, TBRPC has enacted Policy 20.11.1 of Goal 20 of the Future Of The Region, A Comprehensive Regional Policy Plan for the Tampa Bay Region, as Rule 29H-9.002, Florida Administrative Code. Notice of the Challenged Rule was published in the Florida Administrative Weekly on July 24, 1992. The Challenged Rule was approved by TBRPC on September 14, 1992, and it was filed for adoption on October 12, 1992. The Challenged Rule provides: Development of Regional Impact (DRIs) shall be required to analyze project impacts and mitigate to an appropriate peak hour, peak season operating Level of Service (LOS) on regional roads. The level of service standards for DRI's within the Tampa Bay regional shall be: Rural Roads (those not included - C in an urbanized or urbanizing area or a TCMA Within designated CBDs - E Within designated Regional - E Activity Centers Within Transportation Concurrency - as Management Areas (TCMA) established pursuant to Sec. 9J-5.0057 Constrained or Backlogged - maintain Facilities existing V/C (Volume to Capacity) All other regional roadways - D If the affected local government(s) has more stringent standards, those standards will apply. TBRPC adopted the Challenged Rule to fulfill its responsibility to include the criteria for transportation impacts to be used in its DRI review in its comprehensive regional policy plan. TBRPC has been using levels of service for review of transportation impacts of DRIs since 1975. There are levels of service contained in the comprehensive plans of the City and Pasco which are different than some of the levels of service contained in the Challenged Rule. The Challenged Rule provides that the levels of service contained therein are to be used by TBRPC in its review of DRI applications except to the extent that a level of service contained in the local government's comprehensive plan may be more stringent. To the extent that a level of service in the Challenged Rule is more stringent, however, TBRPC intends to recommend to the local government the use of its more stringent level of service. Ultimately, if the local government decides to use a less stringent level of service contained in its comprehensive plan and its decision is appealed, FLWAC will be required to exercise its authority to determine which level of service is consistent with Florida law. The Challenged Rule does not require that local governments accept the levels of service created therein. The Challenged Rule establishes the levels of service that the TBRPC will use in its review and comment on DRI applications. The Challenged Rule also puts developers on notice of the levels of service that TBRPC will base its review of DRI applications on. While a local government must consider the comments of TBRPC, the Challenged Rule does nothing to change the fact that it is up to the local government, after consideration of its comprehensive plan, the State comprehensive plan and the comments of the TBRPC to make the ultimate decision as to whether a DRI application is consistent with State law. Local governments are not required to accept the levels of service contained in the Challenged Rule. Nor is TBRPC, in fulfilling its responsibility to review DRI applications, required by law to only apply levels of service established by local governments in their comprehensive plan. If a local government decides to apply a more strict level of service contained in the Challenged Rule as a result of a comment from TBRPC or as a result of an appeal to FLWAC, the costs associated with the DRI to the local government, including Pasco and the City, could be increased in order to achieve and maintain the higher level of service. Rule 9J-2.0255, Florida Administrative Code. Pursuant to the authority of Section 380.06(23)(a), Florida Statutes, the Department of Community Affairs adopted Rule 9J-2.0255, Florida Administrative Code. Rule 9J-2.0255, Florida Administrative Code, sets out the Department of Community Affairs' policy concerning its role in the review of DRI applications. Rule 9J-2.0255, Florida Administrative Code, establishes the "minimum standards by which the Department will evaluate transportation conditions in development orders for developments of regional impact " As currently in effect, Rule 9J-2.0255, Florida Administrative Code, specifically provides that the Department of Community Affairs, in evaluating a DRI application, will look to the "policies of the local comprehensive plan and Chapter 80 . . ." if a local comprehensive plan is in effect and to the "transportation conditions pursuant to 9J-5, F.A.C., and Chapter 380 . . . " if no local comprehensive plan is in effect. Rule 9J-2.0255, Florida Administrative Code, is limited to Department of Community Affairs' evaluations of DRI applications. The Rule does not specify that regional planning councils must utilize the Rule or local government comprehensive plans in their review of DRI applications. The fact that Rule 9J-2.0255, Florida Administrative Code, provides that, after a local comprehensive plan has been adopted and found to be in compliance, the levels of service contained therein will be used by the Department of Community Affairs for its purposes does not cause levels of service established by TBRPC for its purposes to be inconsistent with Rule 9J- 2.0255, Florida Administrative Code. The standards established in Rule 9J-2.0255, Florida Administrative Code, are only designated as "minimum" standards. Nothing in the Challenged Rule requires the use of any standard less that those "minimum" standards even for purposes of TBRPC's review of DRI applications. The Challenged Rule even specifically provides that, to the extent that a level of service contained in a local government's comprehensive plan is more stringent than that contained in the Challenged Rule, that level of service will be applied by TBRPC. When originally adopted in January, 1987, Rule 9J-2.0255, Florida Administrative Code, provided specific transportation levels of service which the Department of Community Affairs intended to use until comprehensive plans containing levels of service were adopted by local governments. The Rule provided, however, that it was not intended to "limit the ability of the regional planning councils and local governments to impose more stringent mitigation measures than those delineated in this rule." Rule 9J-2.0255(8), Florida Administrative Code. This provision is no longer effective. The original rule also did not specifically indicate that levels of service contained in local government comprehensive plans were to be used by the Department of Community Affairs as it now provides. While there was testimony during the final hearing of this matter that the use of different levels of service by TBRPC and the City or Pasco will result in "inconsistent" reviews of DRI applications, there is nothing in Florida Statutes or the Department of Community Affairs' rules that requires consistency in reviews. There was also testimony that such differences will "not promote efficient DRI review." If the Legislature believes the consideration by the TBRPC and local governments of different levels of service in reaching a decision on a DRI application is "inefficient", it has not made its belief clear in Florida Statutes. If the Legislature wants all of the various agencies involved in DRI review to "not disagree" in order to have "efficient" DRI reviews, it must specifically so provide. The Department of Community Affairs reviewed the Challenged Rule. During its review concern was expressed by the then Secretary of the Department of Community Affairs about the inclusion in the Challenged Rule of levels of service. TBRPC was urged "to adopt standards and methodologies for reviewing DRIs that are consistent with those used by the Department of Community Affairs." TBRPC was not, however, told that the use of levels of service consistent with local government comprehensive plans was required by Department of Community Affairs' rules or that the failure of TBRPC to comply with the Department's suggestion would cause the Challenged Rule to be considered inconsistent with Department of Community Affairs' rules. Concern was also expressed during the review of the Challenged Rule to the Department of Community Affairs by the Department of Transportation about possible inconsistencies of the Challenged Rule's levels of service with the Department of Transportation's Rules. Concerns were also raised within the Department of Community Affairs by the Bureau of State Planning. Ultimately, after considering comments from those interested in the Challenged Rule and in spite of the fact that the Department of Community Affairs would prefer that the levels of service used by the Department of Community Affairs, local governments and regional planning councils be the same, the Department of Community Affairs did not conclude that the Challenged Rule was inconsistent with Rule 9J-2.0255, Florida Administrative Code, or any other statute or rule. I. Section 32, CS/CS/HB 2315. On April 4, 1993, Section 32, of CS/CS/HB 2315 (hereinafter referred to as "Section 32"), was enrolled. Section 32, if signed by the Governor, creates Section 186.507(14), and provides: (14) A regional planning council may not, in its strategic regional policy plan or by any other means, establish binding level-of- service standards for public facilities and services provided or regulated by local governments. This limitation shall not be construed to limit the authority of regional planning councils to propose objections, recommendations, or comments on local plans or plan amendments. Section 32 has not yet become law. Additionally, it Section 32 becomes law, it will not be effective until July 1, 1993. Section 32 was filed in this proceeding by BAGT on April 7, 1993, after the final hearing of these cases had closed. Section 32 was not available to the parties until immediately before it was filed by BAGT. Therefore, it could not have been raised at the time of the final hearing of these cases.
Findings Of Fact On October 31, 1979, the City of Clearwater applied to the Department for permits for the installation of a sewage collection/transmission system in Tract 59 of Countryside Development pursuant to Chapter 403, Florida Statutes. This gravity system was intended to connect to a regional pump station which, at the time of the application, was in the pro- cess of being built. If the gravity system was completed before the pump station, the sewage would be collected at the most downstream manhole and tank-trucked to a waterwaste facility operated by the City of Clearwater. (Intervenor's Exhibit Number 7). After receipt of the application, the Department recommended on November 30, 1979, issuance of the requested permit for Tract 59 and found that the sewage collection system would be installed according to standard approved specifications. (Intervenor's Exhibit Number 11). Petitioner contests the proposed issuance of the requested permit on grounds that the collection system may cause serious damage to Petitioner's downstream property in that transportation of sewage by truck is insufficient for the design flow of the facility and that the storage capacity of the lower manhole opening is not sufficient to prevent the pop-off of manhole covers. Petitioner's property is not adjacent to or contiguous with Tract 59. (Intervenor's Exhibit Number 1). Although Tract 59 and the Petitioner's property are in the same primary drainage basin area, they are in separate sub-basins of the primary drainage area. Tract 59 is in a drainage area referenced as sub-basin 4 while Petitioner's property is referenced as sub-basin 1. (Intervenor's Exhibit Number 2, Testimony of Zimmerman), An indistinguished ridge line exists between the two sub-basins which could be characterized as jurisdictional. A jurisdictional line defines the boundaries of wetlands. (Intervenor's Exhibit Number 12, Testimony of Kutash, Testimony of Mazer). Despite the existence of ditches in an area near the ridge line, there is no discernible surface water flow between the two sub-basins. (Testimony of Zimmerman, Testimony of Mazer). Sub-basin 4 drains north of Tract 59 to surface outfall 4, beneath Curlew Road then to an outfall canal and eventually to Tampa Bay. (Intervenor's Exhibit Number 2, Testimony of Mazer). Sub-basin 1 drains to an outfall in Tract 60 then to Possum Branch Creek and then to Tampa Bay. (Intervenor's Exhibit Number 2, Testimony of Mazer). Tract 59 and Petitioner's property are connected by a sewer line which will be physically blocked until the regional pump station is completed and operational. (Testimony of Mazer). Prior to the hearing, the Intervenor filed Motions to Dismiss and Bifurcate which were both based upon Petitioner's alleged lack of standing to maintain this administrative action. These motions were denied and Petitioner was given the opportunity to present evidence to establish standing. At the close of the hearing, Intervenor again asserted that Petitioner lacked the requisite standing to maintain this action.
Recommendation Accordingly, since the facts fail to support the allegations that Petitioner's "substantial interests" would be affected by this permit and a verified complaint was not filed as required by 403.412(5), Florida Statutes, it is RECOMMENDED: That a final order be entered by the State of Florida, Department of Environmental Regulation, dismissing the Petition in this cause. RECOMMENDED this 1st day of April, 1980, in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Leslie M. Conklin, Esquire 2400 West Bay Drive Suite 415 Largo, Florida 33540 Alfred W. Clark, Esquire Joel R. Tew, Esquire and Department of Enviromental John T. Blakely, Esquire Regulation Post Office Box 1368 2600 Blairstone Road Clearwater, Florida 33517 Tallahassee, Florida 32301
