99-001973 Long Bay Partners, L.L.C., The Brooks Of Bonita Springs Ii Community Development District vs. Florida Land And Water Adjudicatory Commission And Monroe County Status: Closed Recommended Order on Thursday, September 2, 1999.

Summary: Dispute is over a petition to establish a community development district. All statutory criteria were addressed, and the petition met them all.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: )

)

BROOKS OF BONITA SPRINGS II )

PETITION TO ESTABLISH ) C ase N o . 99-1973

UNIFORM COMMUNITY DEVELOPMENT )

DISTRICT. )

______________________________)

REPORT AND CONCLUSIONS

OF ADMINISTRATIVE LAW JUDGE

On July 28, 1999, a local public hearing was held in this

case in Bonita Springs, Florida, before J. Lawrence Johnston,

Administrative Law Judge ( ALJ), Division of Administrative

Hearings, under the authority of Section 190.005(1)(d), Florida

Statutes ( Supp. 1998).

APPEARANCES

For Petitioner: Ken van Assenderp, Esquire

Young, van Assenderp & Varnadoe

225 South Adams Street, Suite 200

Tallahassee, Florida 32301

For Respondent: Patrick White, Esquire

Lee County Attorney's Office

2115 Second Street, Room 620

Fort Myers, Florida 33901

STATEMENT OF THE ISSUE

The issue in this case is whether the Brooks of Bonita

Springs II Petition to Establish a Uniform Community Development

District [By Rule] (the Petition) should be granted.

PRELIMINARY STATEMENT

The Petition was filed with the Secretary of the Florida

Land and Water Adjudicatory Commission ( FLAWAC) on April 14,

1999. The Secretary forwarded the Petition to the Division of

Administrative Hearings ( DOAH) on April 29, 1999. On May 3,

1999, DOAH assigned the ALJ to conduct the required public

hearing and render this report. On June 3, 1999, a Notice of

Hearing was issued for July 28, 1999, in Bonita Springs, Florida.

Appropriate notice of the public hearing was published in

the Fort Myers News-Press, a daily newspaper in Lee County,

Florida, as required by Section 190.005(1)(d), Florida Statutes

( Supp. 1998), and in the Florida Administrative Weekly, as

required by Florida Administrative Code Rule 42-1.010(1)(b).

At the hearing, the Petitioner and Lee County filed a joint

Prehearing Stipulation (with Prehearing Stipulation Exhibits A

through L) and had the Prehearing Stipulation with exhibits

admitted as their joint hearing exhibit. Although a copy of the

Prehearing Stipulation was made available for review by members

of the public, and some of the exhibits were enlarged and

displayed for all participants and the three members of the

public in attendance (other than representatives of the

Petitioner or Lee County) to see, it was requested that the

proponents of pre-filed testimony in the Prehearing Stipulation

be sworn to adopt their pre-filed testimony and answer questions

of the ALJ and members of the public regarding their testimony.

(Only one member of the public had any questions for the

witnesses.) In addition, the Fire Chief for the Estero Fire

Protection and Rescue Service gave sworn testimony.

At the conclusion of the hearing, the Petitioner ordered a

hearing transcript, and the request of the Petitioner and Lee

County to have until August 20, 1999, to file the transcript and

their joint proposed report and conclusions was granted.

Pursuant to Florida Administrative Code 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.

FINDINGS

1. The Petitioner, Long Bay Partners, Inc., is a limited

liability corporation, which owns or has control over the

property proposed for establishment of the state created

District.

2. Lee County is the affected local general purpose

government, a political subdivision of Florida, within whose

jurisdiction, in the unincorporated area of the county, the

proposed land is located.

3. The Petition proposes the establishment by rule of The

Brooks of Bonita Springs II Community Development District (The

Brooks II CDD) on certain proposed real property in the

unincorporated area of Lee County. (The uniform statutory

charter for all established community development districts

( CDDs) is found in Sections 190.006 through 190.046, Florida

Statutes ( Supp. 1998), as amended by Chapter 99-378, Laws of

Florida (1999). See Conclusions, infra .)

4. The Petition alleges that the proposed land to be served

by The Brooks II CDD consists of approximately 1,222.85 acres

bounded on the north by Corkscrew Woodlands, Williams Road, and

various parcels of property; on the east by Interstate 75; on the

west by Seminole Gulf Railroad and by undeveloped parcels of

property west of the railroad; and on the south by The Brooks of

Bonita Springs Community Development District (The Brooks I CDD).

A map purporting to show the location of the land areas to be

served by the CDD was attached as Exhibit 1 to the Petition

(Petition Exhibit 1).

5. As proposed, The Brooks II CDD contains no enclaves; the

land is contiguous and will be separated only by roads, streets,

or other similar, small barriers.

6. The Petition alleges that the metes and bounds legal

description of the property is contained in Petition Exhibit 2.

7. The Petition alleges that Petition Exhibit 3 constitutes

documentation that the owners of all the real property proposed

to be included in The Brooks II CDD have given written consent to

the establishment of the CDD on the proposed property.

8. The Petition names the five persons to serve on the

initial Board of Supervisors upon establishment of the CDD by

rule.

9. The Petition identifies, and depicts in Petition Exhibit

4, the main trunk waterlines, sewer interceptors, and outfalls on

the property proposed to be served by the CDD.

10. The Petition sets forth in Petition Exhibit 5 the

proposed timetable and schedule of estimated costs for the

construction of the proposed facilities. Construction between

the years 1999 through 2007 involves roadways; utilities; water

management and control; roadway lighting; wetland mitigation and

restoration; offsite improvements; right of way acquisitions;

wetland and lake acquisitions; security; landscaping; and

professional fees.

11. The Petition alleges that the Lee County Local

Government Comprehensive Plan is an effective local government

comprehensive plan which is in compliance with state law. It

also alleges that the Lee County future land use map ( FLUM)

designates the land proposed to be within The Brooks II CDD as

"Suburban Rural (Planned Development District Option) and

wetlands"; Petition Exhibit 6-A is a copy of Lee County's current

FLUM.

12. The Petition alleges that Petition Exhibit 7 is a

Statement of Estimated Regulatory Costs.

13. The Petition alleges that the Petitioner paid $15,000

to Lee County on April 8, 1999, for the required filing and

processing fees.

14. Based on the evidence, all statements contained within

the Petition are found to be true and correct. See Prehearing

Stipulation; testimony of Bill Wier, General Manager of Community

Operations for The Brooks; testimony of Petitioner's land use

planner, Barbara Barnes-Buchanan, AICP; testimony of Petitioner's

engineer, Stephen A. Means, P.E.; and testimony of Petitioner's

economist, Carey Garland.

15. The underlying community development anticipated to be

served by the CDD is described in Section 1.0 of the Statement of

Estimated Regulatory Costs and in the testimony of Bill Wier. It

will be consistent with and similar to the development in The

Brooks I CDD--an upscale, residential community with full

amenities. Development in The Brooks II CDD is expected to

include approximately 1,587 single and multifamily residential

dwelling units, passive recreational areas, up to 36 holes of

golf, a golf clubhouse, and a network of trails and parks. The

anticipated development is depicted in the official Notices of

Hearing reproduced in Prehearing Stipulation Exhibits H-1 through

H-5, and the location of the underlying development to be served

by the CDD is set forth in Prehearing Stipulation Exhibits A-1

through A-3. Development in The Brooks II CDD is to proceed

under the development order for the Brooks of Bonita Springs

development of regional impact ( DRI).

16. The evidence (especially the testimony of Barbara

Barnes-Buchanan, AICP) indicates that establishment of The Brooks

II CDD will not be inconsistent with any applicable element or

portion of the state comprehensive plan or of the Lee County

Comprehensive Plan. There was no evidence to the contrary.

17. The evidence points out that a different and more

detailed review is required before it is determined that

development within The Brooks II CDD is consistent with all

applicable laws and local ordinances and the Lee County

Comprehensive Plan. The Petitioner and Lee County acknowledge

that establishment of The Brooks II 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.

18. The evidence indicates that the area of land within the

proposed CDD is of sufficient size, is sufficiently compact, and

is sufficiently contiguous to be developable as one functional

interrelated community. See testimony of Barbara

Barnes-Buchanan, AICP, and Stephen A. Means, P.E. There was no

evidence to the contrary.

19. The evidence indicates that the CDD is the best

alternative available for delivering community development

services and facilities to the area that will be served by the

CDD. See testimony of Barbara Barnes-Buchanan, AICP, and

Stephen A. Means, P.E. There was no evidence to the contrary.

20. The DRI governing development in The Brooks II CDD

requires the development to be part of the Bonita Springs

Utilities water supply and central wastewater treatment systems.

The evidence indicates that the CDD's services and facilities

will not be incompatible with the capacity and uses of existing

local and regional community development services and facilities.

See testimony of Barbara Barnes-Buchanan, AICP, and Stephen A.

Means, P.E. There was no evidence to the contrary.

21. Dennis Merrifield, Fire Chief for the Estero Fire

Protection and Rescue Service (the Fire District), testified and

described the Fire District and its history. Chief Merrifield

stated that the Fire District is not opposed to the establishment

of the CDD on the proposed property, but he wanted to make sure

that the Petitioner was not seeking consent to provide fire

protection and control services. Chief Merrifield pointed out

the Fire District's policy to oppose vigorously any alteration or

amendment of the Fire District's service boundaries. However, it

became clear on cross examination by counsel for Lee County that

Chief Merrifield's concern was based on a misreading of the

Notice of Hearing. The Notice of Hearing included a statement

that fire prevention and control would be one of the special CDD

powers that would require consent by the Board of County

Commissioners. But there is no plan for The Brooks II CDD to

exercise that power; the plan is for fire services to be provided

by the Fire District. The Petitioner's intentions were disclosed

to the members of the Board of County Commissioners at the

optional hearing on July 28, 1999. When all of this was

explained to him, Chief Merrifield made it clear and expressed on

the record that the Fire District welcomes and appreciates the

CDD's efforts to provide systems, facilities, and services and

looks forward to being able to partner with the CDD in the

exercise of these powers.

22. The evidence was that the area to be served by The

Brooks II CDD is amenable to separate special-district

government. See testimony of Barbara Barnes-Buchanan, AICP, and

Stephen A. Means, P.E. There was no evidence to the contrary.

23. Lee County held an optional public hearing on the

Petition, which resulted in the County's adoption of a resolution

supporting the Petition and establishment of The Brooks II CDD.

CONCLUSIONS

24. Under Section 190.003(6), Florida Statutes (1997), 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."

25. Sections 190.006 through 190.046, Florida Statutes

(1997) and ( Supp. 1998), as amended by Section 35 of Chapter 99-

378, Laws of Florida (1999), constitute the uniform general law

charter of all CDDs, which can be amended only by the Florida

Legislature.

26. Section 190.011, Florida Statutes (1997), 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.

27. Section 190.012, Florida Statutes ( Supp. 1998), as

amended by Section 35 of Chapter 99-378, Laws of Florida (1999),

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 and

facilities for water management; water supply, sewer, and

wastewater management; CDD roads meeting minimum county

specifications; 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.

28. Section 190.005(1)(a), Florida Statutes ( Supp. 1998),

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. The Petition in this

case meets all of those requirements.

29. 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. The Petition in this case meets all

of those requirements.

30. 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). The Petitioner in

this case has done so.

31. Section 190.005(1)(b), Florida Statutes ( Supp. 1998),

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. The Petitioner in

this case has met those requirements.

32. Section 190.005(1)(c), Florida Statutes ( Supp. 1998),

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. Lee County has

exercised this option and has adopted a resolution in support of

establishment of The Brooks II CDD.

33. Section 190.005(1)(d), Florida Statutes ( Supp. 1998),

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. The Petitioner has met those requirements.

34. Under Section 190.005(1)(e), Florida Statutes ( Supp.

1998), as amended by Section 35 of Chapter 99-378, Laws of

Florida (1999), 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

35. In this case, all statements contained within the

Petition have been found to be true and correct.

Factor 2

36. In this case, it was found that the establishment of

The Brooks II CDD is not inconsistent with any applicable element

or portion of the state comprehensive plan or of the effective

local government comprehensive plan.

Factor 3

37. In this case, it was found that the area of land within

the proposed CDD is of sufficient size, is sufficiently compact,

and is sufficiently contiguous to be developable as one

functional interrelated community.

Factor 4

38. In this case, it was found that The Brooks II CDD is

the best alternative available for delivering community

development services and facilities to the area that will be

served by the CDD.

Factor 5

39. In this case, it was found 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.

Factor 6

40. In this case, it was found that the area to be served

by The Brooks II CDD is amenable to separate special-district

government.

REPORT AND CONCLUSIONS SUBMITTED this 2nd day of September,

1999, 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 2nd day of September, 1999.

COPIES FURNISHED:

Ken van Assenderp, Esquire

Young, van Assenderp & Varnadoe

225 South Adams Street, Suite 200

Tallahassee, Florida 32301

Donna Arduin, Secretary

Florida Land & Water Adjudicatory

Commission

Executive Office of the Governor

1601 The Capitol

Tallahassee, Florida 32399

Carol Licko, Esquire

Office of the Governor

The Capitol, Room 209

Tallahassee, Florida 32399-0001

Cari L. Roth, General Counsel

Department of Community Affairs

2555 Shummard Oak Boulevard, Suite 315

Tallahassee, Florida 32399

Alfred Bragg, Assistant General Counsel

Department of Community Affairs

2555 Shummard Oak Boulevard, Suite 315

Tallahassee, Florida 32399

Donna Marie Collins, Esquire

Patrick White, Esquire

Lee County Attorney's Office

2115 Second Street, Room 620

Fort Myers, Florida 33901