96-004213 The Tampa Palms Open Space And Transportation Community Development District vs. Florida Land And Water Adjudicatory Commission And Monroe County Status: Closed Recommended Order on Friday, January 31, 1997.

Summary: Community Development District (CDD) petition to contract considered as original petition. Report: All factors met except written consent of all owners. Some factors deduced by res judicata.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: )

)

PETITION TO CONTRACT THE TAMPA )

PALMS OPEN SPACE AND TRANSPORTATION ) CASE NO. 96-4213

COMMUNITY DEVELOPMENT DISTRICT )

____________________________________)

REPORT AND CONCLUSIONS

OF ADMINISTRATIVE LAW JUDGE

On December 3, 1996, a formal public administrative hearing

was held in this case in Tampa, Florida, before J. Lawrence

Johnston, Administrative Law Judge, Division of Administrative

Hearings. This report and these conclusions are submitted as

required by F.A.C. Rule 42-1.013.

APPEARANCES

For Petitioner: Scott I. Steady, Esquire

Williams, Reed, Weinstein,

Schifino & Mangione, P.A.

On e Tampa City Center, Suite 2600

Tampa, Florida 33602

STATEMENT OF THE ISSUE

The issue in this case is whether the Petition to Contract

the Tampa Palms Open Space and Transportation Community District

should be granted.

PRELIMINARY STATEMENT

This proceeding was initiated when Tampa Palms Open Space

and Transportation Community Development District (TPOSTCDD)

filed a petition with the Secretary of the Florida Land and Water

Adjudicatory Commission (FLAWAC) on August 21, 1996, seeking to

contract by rule the existing TPOSTCDD. The Secretary forwarded

the petition to the Division of Administrative Hearings (DOAH) on

September 5, 1996. On September 11, 1996, DOAH assigned this

Administrative Law Judge to conduct the required public hearing

and render this report. On October 11, 1996, a Notice of Hearing

was issued for December 3, 1996.

Appropriate notice of the public hearing was published in

the Tampa Tribune, a daily newspaper in Tampa, Florida, and in

the Florida Administrative Weekly as required by F.A.C. Rule 42-

1.010(1)(b). A copy of such notice was served upon the

Department of Community Affairs as required by F.A.C. Rule 42-

1.011.

At the hearing, the Petitioner presented the testimony of

L.A. “Art” Woodworth, Susan Johnson, and William Rizzetta. In

addition, counsel for the Petitioner made certain factual

representations for the record. Finally, Bob Doran, a resident

of the Tampa Palms Community Development District, located

adjacent and directly to the southwest of the TPOSTCDD, made an

appearance to ask a question. As a result, the Petitioner called

an additional witness, Charles Cook, who was able to answer the

question to Mr. Doran’s satisfaction. In accordance with F.A.C.

Rule 42-1.013(4), the names and addresses of these witnesses are

listed in Appendix A to this report. There were no other

witnesses at the hearing.

Petitioner's Exhibits 1 through 6 were admitted into the

record without objection. In accordance with F.A.C. Rule 42-

1.013(4), the exhibits are listed in Appendix B to this report,

and the exhibits themselves are attached to this report. There

was no other evidence presented at the hearing.

Pursuant to F.A.C. Rule 42-1.012(3), the record of this

matter remained open after the hearing to permit the submission

by any affected or interested persons of written statements

concerning the petition. No public statements were filed.

At the conclusion of the hearing, the Petitioner ordered the

preparation of a transcript and was given ten days after the

filing of the transcript in which to file a proposed report. The

transcript was filed on December 18, 1996, but the Petitioner

declined to filed a proposed report.

FINDINGS

1. The Tampa Palms Open Space and Transportation Community

Development District (TPOSTCDD) was formed by the adoption of

F.A.C. Rules Chapter 42J-1 on January 31, 1990, which followed

the issuance of a Recommended Order and Report in Division of

Administrative Hearings (DOAH) Case Number 89-3654 on October 18,

1989. As required by F.A.C. Rule 42-1.013(3), a copy of the

Recommended Order and Report in DOAH Case Number 89-3654 is

attached.

2. At the time of its formation, the TPOSTCDD comprised

approximately 5,509 acres and was divided into areas known as

Areas 3, 4, 6, 7 and 8. (Areas 1, 2 and 5 were part of a

separate CDD.) These lands were “primarily under one ownership

and one master plan.” See Finding 14, Recommended Order and

Report in DOAH Case Number 89-3654.

3. Since its formation, ownership of the land comprising

the TPOSTCDD was split among several owners. Included among

these were four primary developers: Lennar Homes, Inc., which

owns most of Areas 4 and 8; New Tampa, Inc., which owns most of

Area 3; Starwood/Tampa I, L.P., which owns most of Area 6; and

Atlantic Gulf Communities, Inc., which owns most of Area 7.

4. It originally was intended that the TPOSTCDD would

issue bonds to finance the construction of major infrastructure—

power, sewer and water—along County Road 581, also known as Bruce

B. Downs Boulevard, which runs from the City of Tampa roughly

northeast to and beyond the TPOSTCDD. This “spine” of

infrastructure would be accessible to all of the lands in the

TPOSTCDD, which are located on either side of County Road 581.

5. As actually developed, the major infrastructure along

the County Road 581 “spine” was paid for by the City of Tampa or

by another CDD located northeast of the TPOSTCDD. TPOSTCDD

financed only infrastructure within the discrete areas of the

TPOSTCDD. As a result, the infrastructure financed by the

TPOSTCDD provides a special benefits to the owner of the lands in

the Area where the infrastructure is located.

6. The petition for contraction filed in this case was

initiated because of the desire of Lennar Homes to leave the

TPOSTCDD. The petition seeks to contract the TPOSTCDD by

deleting the approximately 2,357 acres making up Areas 4 and 8.

The TPOSTCDD is the Petitioner. The petition was signed by

Charles Cook, as Chairman, and by Scott I. Steady, Esquire, as

attorney, for the TPOSTCDD. (Charles Cook also is the Vice-

President of Lennar Homes.)

7. All statements in the petition for contraction have

been found to be true and correct. (A copy of the Petition to

Contract is attached.)

8. The petition for contraction contains a metes and

bounds description of the lands included in the existing

TPOSTCDD, the lands included in Areas 4 and 8, and the lands

included in the proposed new TPOSTCDD, after contraction ( i.e. ,

Areas 3, 6 and 7.) It also identifies the members of the board

of supervisors of the existing TPOSTCDD (who presumably are to

continue to serve as the initial members of the board of

supervisors of the proposed new TPOSTCDD, after contraction,

until replaced.) The petition alleges that the proposed new

TPOSTCDD, after contraction, will retain its name. The petition

also maps current major trunk water mains and sewer interceptors

and outfalls that are in existence and a proposed timetable for

construction of district services and good faith estimated cost

of construction the proposed services. It also designates the

future general distribution, location, and extent of public and

private uses of land proposed for the area within the proposed

new TPOSTCDD, after contraction, by the future land use plan

element of the City of Tampa local government comprehensive plan.

9. The petition for contraction contains the written

consent of the owners of all of the real property in Areas 4 and

8 of the TPOSTCDD. It does not, however, contain the written

consent of the owners of all of the real property to be included

in the new TPOSTCDD, after contraction; nor was there any

documentation or other evidence demonstrating that either the

TPOSTCDD or those giving their written consent to the contraction

have control by deed, trust agreement, contract, or option of 100

percent of the real property to be included in the new TPOSTCDD,

after contraction.

10. The petition for contraction contains an economic

impact statement that not only contains a statement of estimated

regulatory costs in accordance with Section 120.541, Fla. Stat.

(Supp. 1996), but also contains, in accordance with Section

120.54(2), Fla. Stat. (1995): an estimate of the cost to the

TPOSTCDD, the City of Tampa, and Hillsborough County (hardly any,

other than the one-time cost of processing the petition for

contraction); an estimate of the cost or economic benefit to the

owners of land in the TPOSTCDD; an estimate of the impact of the

proposed contraction on competition and the open market for

employment (none); an analysis of the impact on small business as

defined in the Florida Small and Minority Business Assistance Act

of 1985; a comparison of the probable costs and benefits of the

proposed contraction to the probable costs and benefits of not

contracting; and a determination that no less costly methods, or

less intrusive methods, or any other reasonable methods exist for

achieving the purpose of the proposed contraction.

11. As pointed out in the Petitioner’s economic impact

statement, the TPOSTCDD has issued $3,920,000 of Special

Assessment Revenue Bonds, Series 1996, for the Area 7 Project.

Proceeds of these bonds are being used to construct public

infrastructure which will provide special benefit only to the

lands located within Area 7 of the CDD. Therefore, the bonds are

being repaid through special assessments levied only on the lands

in Area 7.

12. The Petitioner’s economic impact statement was updated

at the public hearing through the testimony of William Rizzetta

that the TPOSTCDD board of supervisors approved a new bond

issuance to be used to finance the construction of public

infrastructure which will provide special benefit only to the

lands located within Area 6 of the CDD. Therefore, the new bonds

will be repaid through special assessments levied only on the

lands in Area 6. Neither bond issuance has or will have any

impact on the owner of lands in the other areas of the CDD

regardless of whether the petition for contraction is granted.

13. As also pointed out in the Petitioner’s economic impact

statement, the TPOSTCDD also assesses lands within its boundaries

to fund its operation and maintenance (O & M) budget. Its O & M

budget consists of two parts: administration; and field

maintenance. The administration portion of the O & M budget is

allocated to each parcel on a pro-rata acreage basis, since it

benefits all parcels in the CDD. However, the field maintenance

portion of the O & M budget provides special benefit only to

those lands within a particular Area where infrastructure

improvements have been acquired or constructed within the CDD.

Therefore, it has been determined to allocate field maintenance

costs to each Area based on the amount of maintenance required by

the infrastructure improvements acquired or constructed in each

Area. Since all Areas within the TPOSTCDD are accessible from

County Road 581, contraction of the existing TPOSTCDD by deletion

of Areas 4 and 8 will not make field maintenance appreciably less

efficient or more costly. However, as a result of the O & M

budget allocation methodology, the owners of lands in Areas 3, 6

and 7 will have to pay approximately $13.57 per acre more for

their O & M budget allocation after contraction by deletion of

Areas 4 and 8.

14. It is clear from the evidence that the creation of the

proposed TPOSTCDD, after contraction, is consistent with

applicable elements and portions of the state comprehensive plan

and the effective local government comprehensive plans.

15. It is clear from the evidence that the proposed

TPOSTCDD, after contraction, will be of sufficient size,

sufficiently compact, and sufficiently contiguous to be

developable as one functional interrelated community.

16. There was no direct evidence that the proposed

TPOSTCDD, after contraction, is the best alternative available

for delivering community development services and facilities to

the area that will be served by it. However, it is found that,

due to the existence of the major infrastructure along the spine

of County Road 581, and the ownership of Areas 4 and 8 by a

different developer, contraction of the TPOSTCDD by deletion of

Areas 4 and 8 will have no adverse impact on the issue whether

the proposed TPOSTCDD, after contraction, is the best alternative

available for delivering community development services and

facilities to the area that will be served by it. It was found

in the Recommended Order and Report in DOAH Case Number 89-3654

that the existing TPOSTCDD was the best alternative available for

delivering community development services and facilities to the

area that is served by it.

17. It was clear from the evidence that the proposed

TPOSTCDD, after contraction will be compatible with the capacity

and uses of existing local and regional community development

services and facilities.

18. There was no direct evidence that the proposed

TPOSTCDD, after contraction, will be amenable to separate

special-district government. However, it is found that, due to

the existence of the major infrastructure along the spine of

County Road 581, and the ownership of Areas 4 and 8 by a

different developer, contraction of the TPOSTCDD by deletion of

Areas 4 and 8 will have no adverse impact on the issue whether

the proposed TPOSTCDD, after contraction, will be amenable to

separate special-district government. It was found in the

Recommended Order and Report in DOAH Case Number 89-3654 that the

existing TPOSTCDD was amenable to separate special-district

government.

CONCLUSIONS

19. Section 190.046(1), Fla. Stat. (1995), provides for the

filing of a petition for contraction of a community development

district under the provisions of Section 190.005. Under

paragraphs (f) and (g) of Section 190.046(1), petitions to

contract a CDD by 2,357 acres “must be considered petitions to

establish a new district and shall follow all of the procedures

specified in s. 190.005.”

20. Under Section 190.005(1)(e), Fla. Stat. (Supp. 1996),

the Florida Land and Water Adjudicatory Commission (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 creation 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

21. In this case, all statements contained within the

petition for contraction have been found to be true and correct.

However, as found, the petition for contraction does not contain

the written consent of the owners of all of the real property to

be included in the new TPOSTCDD, after contraction; nor was there

any documentation or other evidence demonstrating that either the

TPOSTCDD or those giving their written consent to the contraction

have control by deed, trust agreement, contract, or option of 100

percent of the real property to be included in the new TPOSTCDD,

after contraction. Section 190.005(1)(a)2, Fla. Stat. (Supp.

1996), requires that a petition for establishment of a CDD

contain the written consent of the owners of all of the real

property to be included in the proposed CDD, or documentation

demonstrating that the petitioner has control by deed, trust

agreement, contract, or option of 100 percent of the real

property to be included in the proposed CDD. (Section

190.046(1)(e), Fla. Stat. (1995), requires the written consent of

all landowners whose land is being deleted through contraction,

but paragraphs (f)-(g) of Section 190.046(1) would appear to

require the petition to contract in this case follow all of the

procedures specified in s. 190.005, including the requirement of

Section 190.005(1)(a)2, Fla. Stat. (Supp. 1996).)

22. It is noted that the petition for contraction in this

case contains an economic impact statement that not only contains

a statement of estimated regulatory costs in accordance with

Section 120.541, Fla. Stat. (Supp. 1996), but also contains

several other estimates of economic impact, in accordance with

Section 120.54(2), Fla. Stat. (1995).

Factor 2

23. It was found, supra , that the creation of the proposed

TPOSTCDD, after contraction, is consistent with applicable

elements and portions of the state comprehensive plan and the

effective local government comprehensive plans.

Factor 3

24. It was found, supra , that the proposed TPOSTCDD, after

contraction, will be of sufficient size, sufficiently compact,

and sufficiently contiguous to be developable as one functional

interrelated community.

Factor 4

25. The evidence in this case was that, due to the

existence of the major infrastructure along the spine of County

Road 581, and the ownership of Areas 4 and 8 by a different

developer, contraction of the TPOSTCDD by deletion of Areas 4 and

8 will have no adverse impact on the issue whether the proposed

TPOSTCDD, after contraction, is the best alternative available

for delivering community development services and facilities to

the area that will be served by it. It was found in the

Recommended Order and Report in DOAH Case Number 89-3654 that the

existing TPOSTCDD is the best alternative available for

delivering community development services and facilities to the

area that is served by it. Presumably, that finding supported

the adoption of F.A.C. Rules Chapter 42J-1, which created the

existing TPOSTCDD on January 31, 1990. Using the legal principle

of res judicata , it can be deduced that, since contraction will

have no adverse impact on this issue, the proposed TPOSTCDD,

after contraction, still is the best alternative available.

Factor 5

26. It was found, supra , that the proposed TPOSTCDD, after

contraction, will be compatible with the capacity and uses of

existing local and regional community development services and

facilities.

Factor 6

27. It also can be deduced, using the legal principle of

res judicata , that the area that will be served by the proposed

TPOSTCDD, after contraction, still will be amenable to separate

special-district government. The Recommended Order and Report in

DOAH Case Number 89-3654 found that the existing TPOSTCDD would

be amenable to separate special-district government. Since the

evidence in this case was that contraction will have no adverse

impact on this issue, it can be concluded that the proposed

TPOSTCDD, after contraction, still will be amenable to separate

special-district government.

REPORT AND CONCLUSIONS SUBMITTED this 29th day of January,

1997, at Tallahassee, 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]

Filed with the Clerk of the

Division of Administrative Hearings

this 29th day of January , 1997.

APPENDICES

APPENDIX A

In accordance with F.A.C. Rule 42-1.013(1) and (4), the

following is a list of the names and addresses of the witnesses

and the findings which their testimony helped support:

1. L.A. “Art” Woodworth, Jr.

President, Florida Technical Services

Nicholas Pointe Office Park

522 West Bearss Avenue

Tampa, Florida 33613

Findings 3-6, 8, 15-18

2. Susan Johnson

DRI and Subdivision Coordinator

City of Tampa

Tampa, Florida

Findings 14, 15, 16

3. William J. Rizzetta

Rizzetta & Company

3550 BuschWood Park Drive, Suite 135

Tampa, Florida 33618

Findings 5-6, 10-13, 15-18

4. Charles E. Cook, P.E.

Vice-President, Lan d Division

Lennar Homes, Inc.

1110 Douglas Avenue, Suite 2040

Altamonte Springs, Florida 32714

Findings 3,6, 9

APPENDIX B

In accordance with F.A.C. Rule 42-1.013(2), the following is

a list of the attached documentary evidence:

Petitioner’s Exhibit 1 - Receipt from “Florida

Administrative Weekly” and Affidavit from “The Tampa

Tribune”

Petitioner’s Exhibit 2 - Resume’ of L.A. “Art” Woodworth,

Jr.

Petitioner’s Exhibit 3 - Area Map

Petitioner’s Exhibit 4 - Letter from Susan Johnson

Petitioner’s Exhibit 5 - Company Profile, Rizzetta &

Company, March, 1996

Petitioner’s Exhibit 6 - Economic Impact Statement

COPIES FURNISHED :

Bob Bradley, Secretary

Florida Land & Water Adjudicatory Commission

Exec. Office of the Governor

1601 Capitol

Tallahassee, FL 32399

Gregory Smith, Esquire

Florida Land & Water Adjudicatory Commission

Exec. Office of the Governor

209 Capitol

Tallahassee, FL 32399-0001

Scott I. Steady, Esquire

Williams Reed Weinstein

Schifino & Mangione, P.A.

Post Office Box 380

Tampa, FL 33602