00-003949 In Re: Petition To Contract Lakewood Ranch Community Development District 2 vs. * Status: Closed Recommended Order on Monday, January 22, 2001.

Summary: Consolidated cases to contract a community development district and establish another. Findings and conclusions on statutory criteria; all criteria met.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: PETITION TO CONTRACT )

LAKEWOOD RANCH COMMUNITY ) Case No. 00-3949

DEVELOPMENT DISTRICT 2 )

___________________________________)

IN RE: PETITION TO ESTABLISH RULE )

FOR LAKEWOOD RANCH )

COMMUNITY DEVELOPMENT ) Case No. 00-3950

DISTRICT 5 )

___________________________________)

REPORT AND CONCLUSIONS

OF ADMINISTRATIVE LAW JUDGE

On December 20, 2000, a local p ublic hearing was held in

these cases in Bradenton, Florida, before J. Lawrence

Johnston, Administrative Law Judge (ALJ), Division of

Administrative Hearings, under the authority of Section

190.005(1)(d), Florida Statutes. This report and these

conclusions are submitted to the Florida Land and Water

Adjudicatory Commission (FLAWAC) in accordance with Sections

190.005 and 190.046, Florida Statutes.

APPEARANCES

For Petitioner: Erin McCormick Larrinaga, Esquire

Fowler, White, Gillen, Boggs,

Villareal and Banker, P.A.

Post Office Box 1438

Tampa, Florida 33601-1438

STATEMENT OF THE ISSUES

The issues in these cases are whether two community

development district petitions should be granted: the first,

a Petition to Contract Lakewood Ranch Community Development

District 2; and the second, a Petition to Establish Rule [sic]

for Lakewood Ranch Community Development District 5.

PRELIMINARY STATEMENT

The Petition to Contract Lakewood Ranch Community

Development District 2 and the Petition to Establish Rule

[sic] for Lakewood Ranch Community Development District 5 were

both fi led with FLAWAC's Secretary on September 6, 2000. The

former petition was filed by Lakewood Ranch Community

Development District 2 (District 2); the latter was filed by

SMR Communities Joint Venture (SMR). FLAWAC's Secretary

forwarded the petitions to the Division of Administrative

Hearings (DOAH) on September 25, 2000, for assignment of ALJs

to conduct local public hearings and issue the required

reports. On the same day, DOAH assigned Case No. 00-3949 to

the first petition and Case No. 00-3950 to the second

petition; entered an Initial Order; and assigned an ALJ for

both cases.

On October 3, 2000, the ALJ granted a request to

consolidate the petitions, and a Notice of Hearing was issued

for November 14, 2000, in Bradenton, Florida. However, a

Motion to Continue Hearing was filed on October 27, 2000, and

the hearing was continued to November 21, 2000. Then, a

Motion to Reset Hearing was filed on November 15, 2000, and

the hearing was rescheduled for December 20, 2000.

Appropriate notice of the local public hearing was

published in the Bradenton Herald , a daily newspaper in

Manatee County, Florida, as required by Section 190.005(1)(d),

Florida Statutes (2000), and in the Florida Administrative

Weekly, as required by Florida Administrative Code Rule 42-

1.010(1)(b). Direct testimony of witnesses was pre-filed on

December 14, 2000.

At the consolidated local public hearing on December 20,

2000, District 2 and SMR presented the testimony of the

following witnesses: Rex Jensen, who is Vice President of

SMR, Vice President (Real Estate) of Schroeder-Manatee Ranch,

Inc., Chairman of the Board of Supervisors of District 2, and

agent of both SMR and District 2 in this proceeding; Gary

Moyer, an expert in special district and community development

district management and operation; Michael A. Kennedy, an

expert in civil engineering, specializing in public

infrastructure design, permitting, cost estimation, and

construction for special districts and community development

districts; Betsy Benac, an expert in land use and community

planning; and Henry Fishkind, an expert in economics, finance

and statistics, including the financing and the use of

community development districts and special taxing districts.

SMR and District 2 also offered Petitioners' Exhibits A

through K, N and O, which were admitted into evidence at the

hearing. (It should be noted that the same document--the

Manatee County Comprehensive Plan--serves both as Attachment 9

to Composite Exhibit A and as Attachment 8 to Composite

Exhibit B.)

Interested members of the public in attendance at the

hearing were given an opportunity to read the pre-filed direct

testimony and ask questions of the witnesses after adoption of

the pre-filed testimony. Public comment also was received.

As required by Florida Administrative Code Rule 42-1.012(3),

the record remained open after the hearing to permit the

submission of written statements and responses, but no post-

hearing statements were filed.

The Transcript of the hearing was filed on December 22,

2000. Petitioners' Proposed Report of Findings and

Conclusions was filed on January 4, 2001, and has been

considered.

FINDINGS

1. In Case No. 00-3949, Lakewood Ranch Community

Development District 2 is seeking the adoption of a rule to

contract District 2 by approximately 706 acres. (Comp. Ex. A)

District 2 is located entirely within unincorporated Manatee

County. (Comp. Ex. A, p. 1) District 2, after contraction,

will consist of approximately 1,374 acres. (Comp. Ex. A, pp.

1-2) Upon contraction, District 2 will continue to exercise

the powers set forth in Chapter 190, Florida Statutes,

including, but not limited to, the ability to finance, own,

operate and maintain certain community facilities and

services.

2. In Case No. 00-3950, SMR Communities Joint Venture is

seeking the adoption of a rule to establish Lakewood Ranch

Community Development District 5, consisting of approximately

1,173 acres. (Comp. Ex. B) The proposed District 5 will

consist of the 706 acres contracted out of District 2, plus an

additional 467 acres. (Ex. E, P. 13; Ex. O, p. 9) All of the

approximately 1,173 acres which comprise the proposed District

5 are currently owned by Schroeder-Manatee Ranch, Inc. (Comp.

Ex. A, Att. 3 and 4)

3. Substantially all of the public infrastructure

facilities which will serve the remaining 1,374 acres within

District 2, after contraction, including roads, street

lighting, water, sewer, water management, and landscaping,

already have been completed. (Tr. 13, 30; Ex. E, p. 18; Ex.

F, p. 5)

4. The proposed District 5 is master-planned for

development to include a future golf course and residential

community. (Tr. 13; Ex. E, p. 13; Ex O, p. 9) Much of the

infrastructure and facilities to serve the approximately 1,173

acres within proposed District 5 has not yet been developed.

(Ex. F, pp. 30-31). SMR currently intends that District 5

will construct or otherwise provide for roads and street

lighting, utilities, stormwater management, irrigation and

landscaping. (Comp. Ex. B, Att. 6)

5. Development within District 2, as contracted, and

within proposed District 5 will be in compliance with

development orders approved by Manatee County. ( Exs. I and J)

6. With Manatee County's consent, and pursuant to

Interlocal Agreements, both District 2, as contracted, and

District 5, as proposed, may also exercise other special

powers, as authorized under Section 190.012(2), Florida

Statutes, for the purpose of providing parks and facilities

for indoor and outdoor recreation, cultural, and educational

uses; fire prevention and control; school buildings and

related structures; security; mosquito control; waste

collection and disposal. ( Exs. I and J) Upon completion,

some of the facilities will be owned, operated, and/or

maintained by Districts 2 and 5. Some facilities may be

dedicated to other governmental entities, which will operate

and maintain them. (Comp. Ex. A, Att. 8, p. 6; Comp. Ex. B,

Att. 7, p. 6)

7. The estimated cost in 2000 dollars for additional

capital improvements for District 2, following the proposed

contraction, is $4,622,085, with construction scheduled to

take place from 2001 through 2005. (Comp. Ex. A, Att. 7)

Total capital costs for District 2, after contraction,

including financing, are estimated to be $31,720,000. (Comp.

Ex. A, Att. 8, p. 7)

8. The estimated cost in 2000 dollars for capital

improvements for proposed District 5 is $13,851,835. (Comp.

Ex. B, Att. 6) Total capital costs for proposed District 5,

including financing, are estimated to be $22,115,000. (Comp.

Ex. B, Att. 7, p. 7)

9. SMR expects that proposed District 5 will issue bonds

to be used to provide the capital to construct and to acquire

the planned infrastructure. The bonds will be repaid from the

proceeds of non- ad valorem assessments on all specifically

benefited properties. Funds for District 2 and District 5

infrastructure operations and maintenance may also be

generated via non- ad valorem assessments. (Comp. Ex. A, Att.

8, p. 8; Comp. Ex. B, Att. 7, p. 8).

Allegations in Petitions

10. Some statements in the original petition to contract

District 2 were not true and correct and had to be revised.

As revised, all statements in the petition were shown by the

evidence to be true and correct. All statements in the

petition to establish District 5 were shown by the evidence to

be true and correct. (Tr. 29, 37, 45; Ex. O, pp. 4-7)

11. The petition to contract District 2, as revised,

contains a metes and bounds description of the boundaries of

District 2, after the proposed contraction. (Comp. Ex. A,

Att. 1) The petition to establish District 5 contains a metes

and bounds description of the boundaries of proposed District

5. (Comp. Ex. B, Att. 1)

12. The petition to contract District 2 was executed and

filed by the Board of Supervisors of District 2. (Comp. Ex.

A) Resolution 00-06, dated August 29, 2000, and adopted by

the Board of Supervisors, authorized the filing of the

petition to contract District 2. (T. 17; Ex. O, Att. RJ-1)

In addition, the petition to contract District 2 contains the

written consent and joinder of Schroeder-Manatee Ranch, Inc.,

the owner of 100 percent of the real property proposed to be

contracted out of District 2. (Comp. Ex. A, Att 4)

13. The petition to establish District 5 contains the

written consent of Schroeder-Manatee Ranch, Inc., the owner of

100 percent of the real property to be included in proposed

District 5. (Comp. Ex. B, p. 2 and Att. 3)

14. The petition to contract District 2 contains the

names of the five persons, all residents of the State of

Florida and citizens of the United States, who currently serve

and will continue to serve on the Board of Supervisors for

District 2: Rex Jensen, C. John Clarke, Mary Fran Carroll,

Roger Hill, and Anthony Chiofalo. (Comp. Ex. A, p. 2) The

petition to establish District 5 contains the names of the

five persons, all residents of the State of Florida and

citizens of the United States, who are designated to serve on

the Board of Supervisors for District 5: Rex Jensen, C. John

Clarke, Mary Fran Carroll, Roger Hill, and Anthony Chiofalo.

(Comp. Ex. B, p. 2)

15. The petition to contract District 2 provides that

the name of District 2, after contraction, will continue to be

Lakewood Ranch Community Development District 2. (Comp. Ex.

A, p. 2) The petition to establish District 5 provides that

the name of District 5 will be Lakewood Ranch Community

Development District 5. (Comp. Ex. B, p. 3)

16. The petition to contract District 2, as revised,

contains a map of the current major trunk water mains, sewer

interceptors and outfalls for District 2, after contraction.

(Comp. Ex. A, Att. 6) The petition to establish District 5

contains a map of the current major trunk water mains, sewer

interceptors and outfalls for proposed District 5. (Comp. Ex.

B, Att. 5)

17. The petition to contract District 2 contains the

estimated costs and timetable for future District 2 facilities

and services. (Comp. Ex. A, Att. 7) The petition to

establish District 5 contains the estimated costs and

timetable for proposed District 5 facilities and services.

(Comp. Ex. B, Att. 6)

18. Both the petition to contract District 2 and the

petition to establish District 5 contain a copy of the Manatee

County Comprehensive Plan. (Comp. Ex. A, Att. 9; Comp. Ex. B,

Att. 8) The Future Land Use Plan Element of the Manatee

County Comprehensive Plan designates the future general

distribution, location and extent of public and private uses

of land.

Consistency with Comprehensive Plans

19. From a planning perspective, Goals, 16, 18, and 26

of the State Comprehensive Plan, and the policies supporting

these goals are particularly relevant to the contraction of

District 2 and the establishment of the District 5. (Ex. G,

pp. 5-6) Goal 21 of the State Comprehensive Plan, and Policy

2 thereunder, are also relevant to the contraction of District

2 and the establishment of District 5 from a management

perspective. (Ex. E, pp. 19-21)

20. Goal 16, "Land Use", recognizes the importance of

locating development in areas with the fiscal ability and

service capacity to accommodate growth. Community development

districts ( CDDs) are intended to provide infrastructure and

facilities in a fiscally responsible manner to areas to

accommodate growth. The evidence was that District 2, after

contraction, will continue to have the fiscal ability and

service-capacity to efficiently provide an excellent quality

and range of facilities and services to development in Manatee

County. The evidence was that District 5, as proposed, will

also have the fiscal ability and service-capacity to provide

an excellent quality and range of facilities and services to

development of Manatee County. (Ex. G, p. 5)

21. Goal 18, "Public Facilities", directs the State to:

( i) protect the investments in public facilities that already

exist; (ii) plan for and finance new facilities to serve

residents in a timely and efficient manner; (iii) allocate the

costs of new public facilities on the basis of benefits

received by new residents; (iv) implement innovative but

fiscally sound techniques for financing public facilities; and

(v) identify and use stable revenue sources for financing

public facilities. The evidence was that both District 2, as

proposed to be contracted, and proposed District 5 will

provide both facilities and services in a timely and efficient

manner to the areas within Manatee County to be served by

them, allowing the County to focus its resources elsewhere in

the County and, thus, provide facilities and services to

County residents in a timely and efficient manner. (Ex. G, p.

6)

22. The "Governmental Efficiency" goal, Goal 21,

requires that Florida governments provide the amount and

quality of services required by the public in an economic and

efficient manner. The evidence was that proposed District 5

will have, and District 2 will continue to have, the fiscal

capability to provide quality public services to those who

benefit from and pay for those services. With input from

their respective constituents, the boards of supervisors of

Districts 2 and 5, as proposed, will determine the quality and

quantity of services. This is an economic and efficient way

to provide services. (Ex. E, pp. 19-21)

23. Goal 26, "Plan Implementation", encourages the

integration of systemic planning into all levels of

government, with emphasis on intergovernmental coordination

and maximizing citizen involvement. The development plans for

Districts 2 and 5, as proposed, contemplate the delivery of

improvements in coordination with the general-purpose local

government. From a planning perspective, all decisions of

Districts 2 and 5, as proposed, will be made at board meetings

which are publicly noticed and open to the public, maximizing

input from landowners and residents. (Ex. G, pp. 5-6)

24. The evidence was that the proposed contraction of

District 2 and establishment of District 5 are not

inconsistent with any applicable goal or policy of the State

Comprehensive Plan. (Ex. E, pp. 19-21; Ex. G, pp. 5-6).

25. From a planning perspective, Objective 10.1.10 of

the Capital Improvements Element of the Manatee County

Comprehensive Plan relates specifically to the proposed

contraction of District 2 and establishment of District 5.

This Objective requires the County to utilize funding derived

from growth to offset costs for provision of public facilities

which serve new growth. (Ex. G, p. 7)

26. Policy 10.1.10.1 of Manatee County Comprehensive

Plan specifically references the establishment of CDDs as

funding mechanisms to recapture the costs for providing

facilities and services to new growth. (Ex. G, p. 7)

27. The evidence was that the proposed contraction of

District 2 and establishment of District 5 is not inconsistent

with any of the applicable goals, objectives, and policies of

the Manatee County Comprehensive Plan. (Ex. G, p. 7)

Size, Compactness, and Contiguity

28. The land that currently comprises District 2

consists of approximately 2,080 acres, located entirely within

unincorporated Manatee County, and generally east of I-75,

south of the Braden River, north of the Manatee/Sarasota

County line. (Comp. Ex. A, Att. 1) The petition to contract

District 2 proposes to contract approximately 706 acres out of

District 2. (Comp. Ex. A, Att. 2) District 2, a fter

contraction, will consist of approximately 1,374 acres.

(Comp. Ex. A, Att. 3) Physically, the land comprising

District 2, after contraction, will be compact and contiguous.

29. The petition for a rule to establish District 5

proposes to establish a CDD consisting of approximately 1,173

acres, including the 706 acres contracted out of District 2.

(Comp. Ex. B, Att. 2; Ex. E, p. 13; Ex. O, p. 9) The area of

land within proposed District 5 is bounded by major

thoroughfare roads, the Braden River, and existing community

development districts. (Comp. Ex. A, Att. 2) Physically, the

land comprising District 5 will be compact and contiguous.

30. From an engineering perspective, the property within

CDDs must be sufficiently contiguous so that the proposed

facilities and services can be designed, permitted,

constructed, and maintained in a cost efficient, technically-

sound manner. The property must be sufficiently contiguous to

allow for the efficient, cost-effective, functional and

integrated use of infrastructure. Most of the facilities and

services for District 2, as contracted, have already been

designed, permitted, constructed, and are being maintained in

a cost effective, technically sound manner. The facilities

and services to be provided to proposed District 5 can be

designed, permitted, constructed or acquired, and maintained

in an efficient, cost effective, functional, and integrated

manner. (Ex. F, p. 5)

31. District 2, after contraction, is comprised of land

uses typical of a planned community. From a district

management standpoint, this land has been planned and

developed as a functional, interrelated community. It will

continue to function that way. (Ex. E, pp. 14-15) District 5

is also planned to function as an homogeneous residential

community developed around a future golf course. (Ex. E, p.

15)

32. The evidence was that, from engineering, planning,

and management perspectives, the area of land to be included

in District 2, as proposed to be contracted, and District 5,

as proposed, is of sufficient size and is sufficiently compact

and contiguous to be developed as a function interrelated

community. (Ex. E, pp. 14-15; Ex. F, p. 5; Ex. G, p. 8)

Best Alternative Available

33. District 2 currently operates and maintains the

common infrastructure, facilities and amenities for the

property which will remain in District 2, after contraction.

Facilities which have been constructed by District 2 include

roads, street lighting, water and sewer systems, stormwater

management, irrigation, landscape and recreational facilities.

Contracting the District 2 boundaries, as proposed, will have

no adverse impact on the ability of District 2 to continue to

provide these facilities and services. (Ex. E, pp. 15-16)

34. The property proposed to be contracted out of

District 2, approximately 706 acres, is intended for

development in conjunction with an additional 467 acres

currently owned by Schroeder-Manatee Ranch, Inc.

Collectively, this property is planned for development as a

future homogeneous community developed around a future golf

course. (Ex. O, pp. 9-10; Ex. E, pp. 15-16; Ex. G, pp. 9-10)

35. It is intended that District 5 will fund the

construction of roads, streetlights, utilities, stormwater

management, irrigation and landscape facilities. It may also,

with the approval of Manatee County, and pursuant to an

Interlocal Agreement, construct parks and facilities for

indoor and outdoor recreational, cultural and educational

uses; fire prevention and control; school buildings and

related structures; security; mosquito control; waste

collection and disposal. ( Exs. I and J)

36. It is expected that proposed District 5 will issue

bonds to finance these services and improvements. These bonds

will be repaid from the proceeds of special assessments on

benefited property within proposed District 5. Use of special

assessments will ensure that those benefiting from District 5

services help pay for those services. (Comp. Ex. B, Att. 7,

pp. 8-9)

37. Alternatives to the use of Districts 2 and 5, as

proposed, include the use of a dependent special district for

the area, such as a municipal service benefit unit (MSBU) or

special taxing district under Chapter 170, Florida Statute.

Another alternative is for the developer to provide the

infrastructure for the 467 acres not currently located within

a CDD, and for a property owner' association (POA) to operate

and maintain the community facilities and services. (Comp.

Ex. A, Att. 8, p. 10; Comp. Ex. B, Att. 7, p. 10)

38. The evidence was that proposed Districts 2 and 5 are

preferable to an MSBU or special taxing district under Chapter

170, Florida Statutes, because these alternatives would

require Manatee County to continue to administer the project

and its facilities and services. Unlike CDDs, debts of an

MSBU or dependent special district are debts of the County;

therefore, the costs of these services and facilities are not

necessarily allocated to the land directly benefiting from

them. CDDs are also a better alternative from a government

accountability perspective because residents have a focused

unit of government, ultimately under residential control, with

limited responsibilities, and responsive to residents' needs.

39. The evidence was that CDDs are preferable to POAs

because CDDs can impose, collect, and enforce assessments like

other property taxes. (Comp. Ex. A, Att. 8, p. 10; Comp. Ex.

B, Att. 7, p. 10) As a result, there is greater certainty of

assuring needed funds are available. Furthermore, CDDs,

unlike POAs, are subject to the same statutes and regulations

applicable to other local governments. These statutes include

Chapters 119 and 286, Florida Statutes. Compliance with these

laws ensures the ability of residents, landowners, and the

general public to participate in decision-making processes.

(Comp. Ex. A, Att. 8, p. 9; Comp. Ex. B, Att. 7, p. 9; Ex. E,

p. 8)

40. SMR has experience in working with existing Lakewood

Ranch CDDs. An officer of SMR testified that the Lakewood

Ranch CDDs have obtained long-term, fixed rate financing,

thereby ensuring that commitments to the residents and County

are met, and benefiting the landowners and residents within

the CDDs. (Ex. O, p. 9)

41. The evidence also was that contracting District 2

and establishing District 5 is a better alternative than

leaving the boundaries of District 2 as they currently exist.

The evidence was that, when District 2 was established, the

467 acres now proposed to be combined with the 706 acres

contracted out of District 2 to form proposed District 5 was

not available for inclusion in District 2. Now that the land

is available, Chapter 190, Florida Statutes, precludes the

addition of the 467 acres to District 2. The evidence was

that, since the 1,173 acres to be included in proposed

District 5 will be developed as an homogeneous community,

sharing infrastructure, facilities and services, the best

alternative is to contract District 2 and establish District

5. (Ex. O, pp. 8-10; Ex. E, pp. 15-17) The evidence was

that, from perspectives of engineering, long-term management,

and maintenance of facilities and services, contracting

District 2 and establishing District 5 is the best alternative

for providing long-term, stable entities offering continuity

of management functions and capable of maintaining the

respective facilities over their lives. (Ex. F, p. 6)

Compatibility with Existing Services and Facilities

42. The petitions do not contemplate any planned

duplication of facilities or services. With respect to

District 2, after contraction, most of the facilities and

services have already been constructed, and they do not

duplicate County, or regional facilities or services. The

facilities and services to be provided by proposed District 5

will not duplicate any facilities and services provided by the

County or region. District 5 will supply the additional

facilities and services necessary for development that are not

provided by local general-purpose government or other

governmental entities. (Ex. F, pp. 607; Ex. H, pp. 7-8)

43. Some of the facilities which have been constructed

by District 2, have been dedicated to Manatee County. Some of

the facilities which will be constructed by District 5 also

will be dedicated to Manatee County. (Comp. Ex. A, Att. 8, p.

6; Comp. Ex. B, Att. 7, p. 6)

44. All project infrastructure must comply with County

standards and must be consistent with the local comprehensive

plan and local land development regulations. (Ex. F, pp. 6-7)

45. The evidence was that, from engineering, planning,

economic, and management perspectives, the services and

facilities to be provided by the proposed Districts 2 and 5

will not be incompatible with the capacity and uses of

existing local and regional community development services and

facilities. (Ex. E, pp. 17-18; Ex. F, pp. 6-7; Ex. G, p. 8;

Ex. H, pp. 7-8)

Amenability to Special District Government

46. District 2 has been in existence since 1995, and is

already providing the infrastructure facilities to the

property which will remain in District 2 after the

contraction. The evidence was that, from a management

perspective, the land area within District 2, after

contraction, is sufficiently sized, compact and contiguous to

allow District 2 to provide facilities and services which will

benefit the residents and property owners within District 2.

District 2, after contraction, will continue to be amenable to

separate, special district government.

47. The evidence was that, from a management

perspective, the land area within proposed District 5 will

benefit from the planned infrastructure to be provided. The

size, compactness and contiguity of proposed District 5 also

make it amenable to separate, special district governance.

(T. 24; Ex. E, pp. 18-19)

48. The evidence was that, from an engineering

perspective, contracting District 2 and establishing District

5, so that there are two separate units of government, will

facilitate the orderly provision of facilities, and their

long-term maintenance. With respect to service delivery, both

areas are amenable to being served by separate, special

districts.

49. From a professional economic perspective, it is

expected that proposed District 5 will levy assessments and

fees on the landowners and residents within District 5 who

benefit from the improvements in order to fund the

construction of the planned improvements. Both District 2,

after contraction, and proposed District 5 will levy non- ad

valorem assessments to fund operations and maintenance of

facilities and services. Districts 2 and 5 will not be

dependent on the County for funding, nor is the County liable

for any obligations of the District. Therefore, it is more

economically and functionally efficient to have a separate

special-district government to manage the activities related

to the improvements to the land with the District.

50. It is estimated that the contraction of District 2

will result in a 2.4 percent reduction in the costs per

equivalent residential unit (ERU) for operations and

maintenance. Estimated maintenance assessments would decrease

from $1,062 per year to $1,036 per year per ERU in District 2,

after contraction. (Tr. 41) This is because some of the

landscape maintenance costs currently benefiting District 2

will be shared with additional units planned for District 5.

(Comp. Ex. A, Att. 8, p. 7; Comp. Ex. B, Att. 7, p. 7)

Capital assessments for District 2, after contraction, would

not increase, but it cannot be determined at this time if

capital assessments would be lowered. (Tr. 41)

Agency Comment on the Petition

51. FLAWAC's Secretary distributed copies of both

petitions to the Department of Community Affairs (DCA) and to

the Tampa Bay Regional Planning Council (TBRPC) and requested

that these agencies review the petitions.

52. The TBRPC responded by letters dated October 3,

2000. The TBRPC stated that it had reviewed the petitions,

and had no questions or concerns regarding either one. (Comp.

Ex. K)

53. District 2 paid Manatee County a $15,000 filing fee

for processing the petition to contract District 2. SMR paid

the County a $15,000 filing fee for processing the petition to

establish District 5.

54. On October 24, 2000, Manatee County adopted

Resolution R-00-232 supporting the petition to contract

District 2 and Resolution R-00-233 supporting the petition to

establish District 5. The resolutions were based on the

representations in the petitions, which were believed to be

true and correct. The County's support of the petitions was

subject only to the limitation that separate consent would be

required for the exercise of special powers in Section

190.012(2), Florida Statutes.

CONCLUSIONS

55. Under Section 190.003(6), Florida Statutes (2000) , a

"community development district" (CDD) is "a local unit of

special-purpose government which is created pursuant to this

act and limited to the performance of those specialized

functions authorized by this act; the boundaries of which are

contained wholly within a single county; the governing head of

which is a body created, organized, and constituted and

authorized to function specifically as prescribed in this act

for the delivery of urban community development services; and

the formation, powers, governing body, operation, duration,

accountability, requirements for disclosure, and termination

of which are as required by general law." (All of the

following statutory citations are to the year 2000

codification of the Florida Statutes.)

56. Sections 190.006 through 190.046 constitute the

uniform general law charter of all CDDs, which can be amended

only by the Florida Legislature.

57. Section 190.011 enumerates the general powers of

CDDs. These powers include the power of eminent domain inside

the district and, with the approval of the governing body of

the applicable county or municipality, outside the district

for purposes related solely to water, sewer, district roads,

and water management.

58. Section 190.012 lists special powers of CDDs.

Subject to the regulatory power of all applicable government

agencies, CDDs may plan, finance, acquire, construct, enlarge,

operate, and maintain systems, facilities, and basic

infrastructures for: water management; water supply, sewer,

and wastewater management; needed bridges and culverts; CDD

roads meeting minimum county specifications, street lights,

and certain mass transit facilities; investigation and

remediation costs associated with cleanup of environmental

contamination; conservation, mitigation, and wildlife habitat

areas; and certain projects within or without the CDD pursuant

to development orders from local governments. After obtaining

the consent of the applicable local government, a CDD may have

the same powers with respect to the following "additional"

systems and facilities: parks and recreation; fire

prevention; school buildings; security; mosquito control; and

waste collection and disposal.

59. Section 190.046(1) provides for the filing of a

petition for contraction of a CDD. Under paragraphs (f) and

(g) of Section 190.046(1), petitions to contract a CDD by more

than 250 acres "shall be considered petitions to establish a

new district and shall follow all of the procedures specified

in s. 190.005."

60. Section 190.005(1)(a) requires that the petition to

establish a CDD be filed with FLAWAC and submitted to the

County. The petition must describe by metes and bounds the

proposed area to be serviced by the CDD with a specific

description of real property to be excluded from the district.

The petition must set forth that the petitioner has the

written consent of the owners of all of the proposed real

property in the CDD, or has control by "deed, trust agreement,

contract or option" of all of the proposed real property. The

petition must designate the five initial members of the Board

of Supervisors of the CDD and the district’s name. The

petition must contain a map showing current major trunk water

mains and sewer interceptors and outfalls, if any. Both the

petition to contract District 2 and the petition to establish

District 5 meet those requirements.

61. Section 190.005(1)(a) also requires that the

petition propose a timetable for construction and an estimate

of construction costs. The petition must designate future

general distribution, location, and extent of public and

private uses of land in the future land-use element of the

appropriate local government. The petition must also contain

a Statement of Estimated Regulatory Cost. Both the petition

to contract District 2 and the petition to establish District

5 meet those requirements.

62. Section 190.005(1)(a) also requires the petitioner

to provide a copy of the local government’s growth management

plan (the local government comprehensive plan). District 2

and SMR have done so.

63. Section 190.005(1)(b) requires that the petitioner

pay a filing fee of $15,000 to the county and to each

municipality whose boundaries are within or contiguous to the

CDD. The petitioner must serve a copy of the petition on

those local governments, as well. District 2 and SMR have met

those requirements.

64. Section 190.005(1)(c) permits the county and each

municipality described in the preceding paragraph to conduct

an optional public hearing on the petition. Such local

governments may then present resolutions to FLAWAC as to the

proposed property for the CDD. Manatee County has exercised

this option and has adopted a resolution in support of the

contraction of District 2 and establishment of District 5.

65. Section 190.005(1)(d) requires a DOAH ALJ to conduct

a local public hearing pursuant to Chapter 120, Florida

Statutes. The hearing "shall include oral and written

comments on the petition pertinent to the factors specified in

paragraph (e)." Section 190.005(1)(d) specifies that the

petitioner must publish notice of the local public hearing

once a week for the four successive weeks immediately prior to

the hearing. District 2 and SMR have met those requirements.

66. Under Section 190.005(1)(e), FLAWAC must consider

the following factors in determining whether to grant or deny

a petition for the establishment of a CDD:

1. Whether all statements contained within

the petition have been found to be true and

correct.

2. Whether the establishment of the

district is inconsistent with any

applicable element or portion of the state

comprehensive plan or of the effective

local government comprehensive plan.

3. Whether the area of land within the

proposed district is of sufficient size, is

sufficiently compact, and is sufficiently

contiguous to be developable as one

functional interrelated community.

4. Whether the district is the best

alternative available for delivering

community development services and

facilities to the area that will be served

by the district.

5. Whether the community development

services and facilities will be

incompatible with the capacity and uses of

existing local and regional community

development services and facilities.

6. Whether the area that will be served by

the district is amenable to separate

special-district government.

Factor 1

67. Some statements in the original petition to contract

District 2 were not true and correct and had to be revised.

As revised, all statements in the petition were shown by the

evidence to be true and correct. All statements in the

petition to establish District 5 were shown by the evidence to

be true and correct. There was no evidence to the contrary.

Factor 2

68. In these cases, the evidence was that the proposed

contraction of District 2 and establishment of District 5 are

not inconsistent with any applicable element or portion of the

state comprehensive plan or of the local government

comprehensive plan. There was no evidence to the contrary.

69. (A different and more detailed review is required to

determine that future development within the proposed CDDs

will be consistent with all applicable laws and local

ordinances and the Manatee County Comprehensive Plan.

Establishment of a CDD does not constitute and should not be

construed as a development order or any other kind of approval

of the development anticipated in the CDD. Such

determinations are made in other proceedings.)

Factor 3

70. In these cases, the evidence was that the areas of

land within District 2, as proposed to be contracted, and

within proposed District 5 are of sufficient size, are

sufficiently compact, and are sufficiently contiguous for each

proposed CDD to be developable as a functional, interrelated

community. There was no evidence to the contrary.

Factor 4

71. In these cases, the evidence was that District 2, as

proposed to be contracted, and proposed District 5 are the

best alternatives available for delivering community

development services and facilities to the areas that will be

served by those two proposed CDDs. There was no evidence to

the contrary.

Factor 5

72. In these cases, the evidence was that the proposed

community development services and facilities will not be

incompatible with the capacity and uses of existing local and

regional community development services and facilities. There

was no evidence to the contrary.

Factor 6

73. In these cases, the evidence was that the areas to

be served by District 2, as proposed to be contracted, and

proposed District 5 are amenable to separate special-district

government. There was no evidence to the contrary.

REPORT AND CONCLUSIONS SUBMITTED this 22nd day of

January, 2001, in Tallahassee, Leon County, Florida.

___________________________________

J. LAWRENCE JOHNSTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 22nd day of January, 2001.

COPIES FURNISHED:

Erin McCormick Larrinaga, Esquire

Fowler, White, Gillen, Boggs,

Villareal and Banker, P.A.

Post Office Box 1438

Tampa, Florida 33601-1438

Jose Luis Rodriguez, Esquire

Governor's Legal Office

The Capital, Room 209

Tallahassee, Florida 32399-0001

Donna Arduin, Secretary

Florida Land and Water Adjudicatory

Commission

Executive Office of the Governor

2105 The Capitol

Tallahassee, Florida 32399

Barbara Leighty, Clerk

Growth Management and Strategic

Planning

The Capitol, Suite 2105

Tallahassee, Florida 32399

Charles Canaday, General Counsel

Office of the Governor

Department of Legal Affairs

The Capitol, Suite 209

Tallahassee, Florida 32399-0001