99-003021 In Re: Centrex Homes, A Nevada General Partnership And Owner Of Fleming Island Plantation vs. * Status: Closed Recommended Order on Wednesday, November 10, 1999.

Summary: Petition meets all requirements and should be granted.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: CENTREX HOMES, A NEVADA )

GENERAL PARTNERSHIP AND OWNER ) Case No. 99-3021

OF FLEMING ISLAND PLANTATION, )

__________________________________)

REPORT AND CONCLUSIONS

On October 2, 1999, a local public hearing was held in this

case in Green Cove Springs, Clay County, Florida, before Don W.

Davis, Administrative Law Judge (ALJ), Division of Administrative

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

Statutes (Supp. 1998).

APPEARANCES

For Petitioner: Susan C. McDonald, Esquire

Rogers, Towers, Bailey,

Jones & Gay, P.A.

1301 Riverplace Boulevard, Suite 1500

Jacksonville, Florida 32207

STATEMENT OF THE ISSUE

The issue in this case is whet her the Petition to Establish

Rule and the Amended Petition to Establish Rule (the Petition)

should be granted.

PRELIMINARY STATEMENT

The original Petition was filed with the Secretary of the

Florida Land and Water Adjudicatory Commission (FLAWAC) on

April 30, 1999. The Amended Petition was filed with FLAWAC on

September 8, 1999. The Secretary forwarded the original Petition

to the Division of Administrative Hearings (DOAH) on July 12,

1999. On or about July 16, 1999, DOAH assigned the ALJ to

conduct the required public hearing and render this report. On

August 13, 1999, a Notice of Hearing was issued for October 21,

1999, in Green Cove Springs, Florida. Appropriate notice of the

public hearing was published in the Florida Times-Union , a daily

newspaper in Clay County, Florida, as required by Section

190.005(1)(d), Florida Statutes (Supp. 1998), and in the Florida

Administrative Weekly, as required by Rule 42-1.010(1)(b),

Florida Administrative Code.

Prior to the hearing, the Petitioner filed a M otion to

Qualify Gary L. Moyer as an expert along with pre-hearing

testimony. This was admitted into evidence at the hearing as

Petitioner's Exhibit No. 1. Mr. Moyer was qualified as an expert

at the hearing on October 21, 1999, and he gave additional

testimony in support of his conclusions. Furthermore, Resolution

99-57, demonstrating Clay County's support of the creation of the

Fleming Island Community Development District (Fleming Island

CDD) was admitted as Petitioner's Exhibit No. 2. The statement

of regulatory cost was admitted as Petitioner's Exhibit No. 3.

Additional expert testimony was provided by Susan L. Fraser and

William J. Rizzetta in support of the Petition.

At the conclusion of the hearing, the Petitioner ordered a

hearing Transcript which was mailed to the ALJ by the court

reporter on October 21, 1999.

Pursuant to Rule 42-1.012(3), Florida Administrative Code,

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 OF FACT

1. The Petitioner, Centrex Homes, is a Nevada General

Partnership which owns or has authority over the property

proposed for establishment of the state created District.

2. Clay 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 establishmen t by rule of

Fleming Island CDD on certain proposed real property in the

unincorporated area of Clay 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 proposed land to be served by Fleming Island CDD

consists of approximately 1,580 acres bounded on the north and

west by vacant property; on the east by U.S. Highway 17, Fleming

Island Estates and the St. Johns River; on the southwest by Black

Creek; and on the south by Black Creek and the St. Johns River.

A map showing the location of the land areas to be served by the

CDD was attached as Petitioner's Exhibit No. 1 to the Petition.

5. As proposed, Fleming Island 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

No. 2.

7. The Petition Exhibit Nos. 3, 4, and 5 constitute

documentation that the owners of all the real property proposed

to be included in Fleming Island CDD have given written consent

to the establishment of the CDD on the proposed property.

8. The Petition names the five persons (revised in the

Amended Petition) to serve on the initial Board of Supervisors

upon establishment of the CDD by rule. The Petition identifies

and depicts in Petition Exhibit No. 6 proposed land uses within

the previously-approved DRI.

9. The Petition identifies the DRI development order in

Petition Exhibit No. 7.

10. The Petition identifies and depicts in Petition Exhibit

No. 8 the main trunk waterlines, sewer interceptors, and outfalls

on the property proposed to be served by the CDD.

11. The Petition sets forth in Petition Exhibit No. 9

(revised in the Amended Petition) the proposed timetable and

schedule of estimated costs for the construction of the proposed

facilities.

12. The Petition alleges and Petitioner's Exhibit No. 2

admitted at the hearing demonstrates that the Clay County Local

Government Comprehensive Plan is an effective local government

comprehensive plan which is in compliance with state law. The

Petition also alleges that the Clay County future land use map

(FLUM) designates the land to be within Fleming Island CDD.

13. Petition Exhibit No. 11 is a Statement of Estimated

Regulatory Costs.

14. The Petitioner paid $15,000 to Clay County for the

required filing and processing fees prior to filing the Petition

on April 30, 1999.

15. Based on the evidence, all statements contained within

the Petition are found to be true and correct. See pre-filed and

oral testimony of Gary L. Moyer; testimony of Petitioner's land

use planner, Susan Fraser, AICP; and testimony of Petitioner's

business expert, William J. Rizzetta.

16. The underlying community development anticipated to be

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

Estimated Regulatory Costs at Petition Exhibit No. 11 and in the

testimony of Gary L. Moyer. It will be consistent with and

similar to the adjacent development. Development in Fleming

Island CDD is to proceed under the development order for

development of regional impact (DRI).

17. The evidence, especially the testimony of Susan Fraser

(AICP), indicates that establishment of Fleming Island CDD will

not be inconsistent with any applicable element or portion of the

state comprehensive plan or of the Clay County Comprehensive

Plan. There was no evidence to the contrary.

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

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

sufficiently contiguous to be developable as one, functional,

interrelated community. 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 (including recreational facilities) to

the area that will be served by the CDD. There was no evidence

to the contrary.

20. 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. There was no evidence to the contrary.

21. The evidence was that the area to be served by Fleming

Island CDD is amenable to separate special-district government.

There was no evidence to the contrary.

22. Clay County also he ld a public hearing on the Petition,

which resulted in the County's adoption of a Resolution 99-57

supporting the Petition and establishment of the Fleming Island

CDD.

CONCLUSIONS OF LAW

23. The Division of Administrative Hearings has

jurisdiction over this subject matter and the parties to this

action pursuant to Section 120.57(1), Florida Statutes.

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 these 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 190.006, 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 1990.011, 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 proposes related solely to water, server,

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 waste

water 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. 199 8),

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), Florida Statutes, 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), Florida Statutes, 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), F lorida 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 109.005(1)(c), Florida Statutes (Supp. 1998),

permits the county and each municipality described in the

preceding paragraph to conduct a public hearing on the Petition.

Such local governments may then present resolutions to FLAWAC as

to the proposed property for the CDD. Clay County has exercised

this option and has adopted Resolution 99-57 in support of

establishment of Fleming Island CDD.

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

requires a hearing officer 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 spelled in paragraph (e)." Section 190.005(1)(d),

Florida Statutes, 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 for 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 are found to be true and correct.

Factor 2

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

Fleming Island 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 is found that the area of land within

the Fleming Island 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 is found that Fleming Island 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 is 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 is found that the area to be served by

the Fleming Island CDD is amenable to separate special-district

government.

DONE AND ENTERED this 10th day of November, 1999, in

Tallahassee, Leon County, Florida.

___________________________________

DON W. DAVIS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 10th day of November , 1999.

COPIES FURNISHED:

Donna Arduin, Secretary

Florida Land and Water

Adjudicatory Commission

Office of the Governor

The Capitol, Suite 1601

Tallahassee, Florida 32399

David Bishop, Esquire

1101 Flora Park Drive

Jacksonville, Florida 32259

Barbara Leighty, Clerk

Growth Management and

Strategic Planning

Administration Commission

The Capitol, Suite 2105

Tallahassee, Florida 32399-0001

Susan C. McDonald, Esquire

Rogers, Towers, Bailey,

Jones & Gay, P.A.

Suite 1500

1301 Riverplace Boulevard

Jacksonville, Florida 32207

Daniel Woodring, Esquire

Office of the Governor

Department of Legal Affairs

The Capitol

Tallahassee, Florida 32399-0001

Carol Licko, General Counsel

Office of the Governor

The Capitol, Suite 209

Tallahassee, Florida 32399-0001

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.