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


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

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8IN RE: PETITION TO CONTRACT )

14LAKEWOOD RANCH COMMUNITY ) Case No. 00-3949

21DEVELOPMENT DISTRICT 2 )

25___________________________________)

26IN RE: PETITION TO ESTABLISH RULE )

33FOR LAKEWOOD RANCH )

37COMMUNITY DEVELOPMENT ) Case No. 00-3950

43DISTRICT 5 )

46___________________________________)

47REPORT AND CONCLUSIONS

50OF ADMINISTRATIVE LAW JUDGE

54On December 20, 2000, a local p ublic hearing was held in

66these cases in Bradenton, Florida, before J. Lawrence

74Johnston, Administrative Law Judge (ALJ), Division of

81Administrative Hearings, under the authority of Section

88190.005(1)(d), Florida Statutes. This report and these

95conclusions are submitted to the Florida Land and Water

104Adjudicatory Commission (FLAWAC) in accordance with Sections

111190.005 and 190.046, Florida Statutes.

116APPEARANCES

117For Petitioner: Erin McCormick Larrinaga, Esquire

123Fowler, White, Gillen, Boggs,

127Villareal and Banker, P.A.

131Post Office Box 1438

135Tampa, Florida 33601-1438

138STATEMENT OF THE ISSUES

142The issues in these cases are whether two community

151development district petitions should be granted: the first,

159a Petition to Contract Lakewood Ranch Community Development

167District 2; and the second, a Petition to Establish Rule [sic]

178for Lakewood Ranch Community Development District 5.

185PRELIMINARY STATEMENT

187The Petition to Contract Lakewood Ranch Community

194Development District 2 and the Petition to Establish Rule

203[sic] for Lakewood Ranch Community Development District 5 were

212both fi led with FLAWAC's Secretary on September 6, 2000. The

223former petition was filed by Lakewood Ranch Community

231Development District 2 (District 2); the latter was filed by

241SMR Communities Joint Venture (SMR). FLAWAC's Secretary

248forwarded the petitions to the Division of Administrative

256Hearings (DOAH) on September 25, 2000, for assignment of ALJs

266to conduct local public hearings and issue the required

275reports. On the same day, DOAH assigned Case No. 00-3949 to

286the first petition and Case No. 00-3950 to the second

296petition; entered an Initial Order; and assigned an ALJ for

306both cases.

308On October 3, 2000, the ALJ granted a request to

318consolidate the petitions, and a Notice of Hearing was issued

328for November 14, 2000, in Bradenton, Florida. However, a

337Motion to Continue Hearing was filed on October 27, 2000, and

348the hearing was continued to November 21, 2000. Then, a

358Motion to Reset Hearing was filed on November 15, 2000, and

369the hearing was rescheduled for December 20, 2000.

377Appropriate notice of the local public hearing was

385published in the Bradenton Herald , a daily newspaper in

394Manatee County, Florida, as required by Section 190.005(1)(d),

402Florida Statutes (2000), and in the Florida Administrative

410Weekly, as required by Florida Administrative Code Rule 42-

4191.010(1)(b). Direct testimony of witnesses was pre-filed on

427December 14, 2000.

430At the consolidated local public hearing on December 20,

4392000, District 2 and SMR presented the testimony of the

449following witnesses: Rex Jensen, who is Vice President of

458SMR, Vice President (Real Estate) of Schroeder-Manatee Ranch,

466Inc., Chairman of the Board of Supervisors of District 2, and

477agent of both SMR and District 2 in this proceeding; Gary

488Moyer, an expert in special district and community development

497district management and operation; Michael A. Kennedy, an

505expert in civil engineering, specializing in public

512infrastructure design, permitting, cost estimation, and

518construction for special districts and community development

525districts; Betsy Benac, an expert in land use and community

535planning; and Henry Fishkind, an expert in economics, finance

544and statistics, including the financing and the use of

553community development districts and special taxing districts.

560SMR and District 2 also offered Petitioners' Exhibits A

569through K, N and O, which were admitted into evidence at the

581hearing. (It should be noted that the same document--the

590Manatee County Comprehensive Plan--serves both as Attachment 9

598to Composite Exhibit A and as Attachment 8 to Composite

608Exhibit B.)

610Interested members of the public in attendance at the

619hearing were given an opportunity to read the pre-filed direct

629testimony and ask questions of the witnesses after adoption of

639the pre-filed testimony. Public comment also was received.

647As required by Florida Administrative Code Rule 42-1.012(3),

655the record remained open after the hearing to permit the

665submission of written statements and responses, but no post-

674hearing statements were filed.

678The Transcript of the hearing was filed on December 22,

6882000. Petitioners' Proposed Report of Findings and

695Conclusions was filed on January 4, 2001, and has been

705considered.

706FINDINGS

7071. In Case No. 00-3949, Lakewood Ranch Community

715Development District 2 is seeking the adoption of a rule to

726contract District 2 by approximately 706 acres. (Comp. Ex. A)

736District 2 is located entirely within unincorporated Manatee

744County. (Comp. Ex. A, p. 1) District 2, after contraction,

754will consist of approximately 1,374 acres. (Comp. Ex. A, pp.

7651-2) Upon contraction, District 2 will continue to exercise

774the powers set forth in Chapter 190, Florida Statutes,

783including, but not limited to, the ability to finance, own,

793operate and maintain certain community facilities and

800services.

8012. In Case No. 00-3950, SMR Communities Joint Venture is

811seeking the adoption of a rule to establish Lakewood Ranch

821Community Development District 5, consisting of approximately

8281,173 acres. (Comp. Ex. B) The proposed District 5 will

839consist of the 706 acres contracted out of District 2, plus an

851additional 467 acres. (Ex. E, P. 13; Ex. O, p. 9) All of the

865approximately 1,173 acres which comprise the proposed District

8745 are currently owned by Schroeder-Manatee Ranch, Inc. (Comp.

883Ex. A, Att. 3 and 4)

8893. Substantially all of the public infrastructure

896facilities which will serve the remaining 1,374 acres within

906District 2, after contraction, including roads, street

913lighting, water, sewer, water management, and landscaping,

920already have been completed. (Tr. 13, 30; Ex. E, p. 18; Ex.

932F, p. 5)

9354. The proposed District 5 is master-planned for

943development to include a future golf course and residential

952community. (Tr. 13; Ex. E, p. 13; Ex O, p. 9) Much of the

966infrastructure and facilities to serve the approximately 1,173

975acres within proposed District 5 has not yet been developed.

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

995will construct or otherwise provide for roads and street

1004lighting, utilities, stormwater management, irrigation and

1010landscaping. (Comp. Ex. B, Att. 6)

10165. Development within District 2, as contracted, and

1024within proposed District 5 will be in compliance with

1033development orders approved by Manatee County. ( Exs. I and J)

10446. With Manatee County's consent, and pursuant to

1052Interlocal Agreements, both District 2, as contracted, and

1060District 5, as proposed, may also exercise other special

1069powers, as authorized under Section 190.012(2), Florida

1076Statutes, for the purpose of providing parks and facilities

1085for indoor and outdoor recreation, cultural, and educational

1093uses; fire prevention and control; school buildings and

1101related structures; security; mosquito control; waste

1107collection and disposal. ( Exs. I and J) Upon completion,

1117some of the facilities will be owned, operated, and/or

1126maintained by Districts 2 and 5. Some facilities may be

1136dedicated to other governmental entities, which will operate

1144and maintain them. (Comp. Ex. A, Att. 8, p. 6; Comp. Ex. B,

1157Att. 7, p. 6)

11617. The estimated cost in 2000 dollars for additional

1170capital improvements for District 2, following the proposed

1178contraction, is $4,622,085, with construction scheduled to

1187take place from 2001 through 2005. (Comp. Ex. A, Att. 7)

1198Total capital costs for District 2, after contraction,

1206including financing, are estimated to be $31,720,000. (Comp.

1216Ex. A, Att. 8, p. 7)

12228. The estimated cost in 2000 dollars for capital

1231improvements for proposed District 5 is $13,851,835. (Comp.

1241Ex. B, Att. 6) Total capital costs for proposed District 5,

1252including financing, are estimated to be $22,115,000. (Comp.

1262Ex. B, Att. 7, p. 7)

12689. SMR expects that proposed District 5 will issue bonds

1278to be used to provide the capital to construct and to acquire

1290the planned infrastructure. The bonds will be repaid from the

1300proceeds of non- ad valorem assessments on all specifically

1309benefited properties. Funds for District 2 and District 5

1318infrastructure operations and maintenance may also be

1325generated via non- ad valorem assessments. (Comp. Ex. A, Att.

13358, p. 8; Comp. Ex. B, Att. 7, p. 8).

1345Allegations in Petitions

134810. Some statements in the original petition to contract

1357District 2 were not true and correct and had to be revised.

1369As revised, all statements in the petition were shown by the

1380evidence to be true and correct. All statements in the

1390petition to establish District 5 were shown by the evidence to

1401be true and correct. (Tr. 29, 37, 45; Ex. O, pp. 4-7)

141311. The petition to contract District 2, as revised,

1422contains a metes and bounds description of the boundaries of

1432District 2, after the proposed contraction. (Comp. Ex. A,

1441Att. 1) The petition to establish District 5 contains a metes

1452and bounds description of the boundaries of proposed District

14615. (Comp. Ex. B, Att. 1)

146712. The petition to contract District 2 was executed and

1477filed by the Board of Supervisors of District 2. (Comp. Ex.

1488A) Resolution 00-06, dated August 29, 2000, and adopted by

1498the Board of Supervisors, authorized the filing of the

1507petition to contract District 2. (T. 17; Ex. O, Att. RJ-1)

1518In addition, the petition to contract District 2 contains the

1528written consent and joinder of Schroeder-Manatee Ranch, Inc.,

1536the owner of 100 percent of the real property proposed to be

1548contracted out of District 2. (Comp. Ex. A, Att 4)

155813. The petition to establish District 5 contains the

1567written consent of Schroeder-Manatee Ranch, Inc., the owner of

1576100 percent of the real property to be included in proposed

1587District 5. (Comp. Ex. B, p. 2 and Att. 3)

159714. The petition to contract District 2 contains the

1606names of the five persons, all residents of the State of

1617Florida and citizens of the United States, who currently serve

1627and will continue to serve on the Board of Supervisors for

1638District 2: Rex Jensen, C. John Clarke, Mary Fran Carroll,

1648Roger Hill, and Anthony Chiofalo. (Comp. Ex. A, p. 2) The

1659petition to establish District 5 contains the names of the

1669five persons, all residents of the State of Florida and

1679citizens of the United States, who are designated to serve on

1690the Board of Supervisors for District 5: Rex Jensen, C. John

1701Clarke, Mary Fran Carroll, Roger Hill, and Anthony Chiofalo.

1710(Comp. Ex. B, p. 2)

171515. The petition to contract District 2 provides that

1724the name of District 2, after contraction, will continue to be

1735Lakewood Ranch Community Development District 2. (Comp. Ex.

1743A, p. 2) The petition to establish District 5 provides that

1754the name of District 5 will be Lakewood Ranch Community

1764Development District 5. (Comp. Ex. B, p. 3)

177216. The petition to contract District 2, as revised,

1781contains a map of the current major trunk water mains, sewer

1792interceptors and outfalls for District 2, after contraction.

1800(Comp. Ex. A, Att. 6) The petition to establish District 5

1811contains a map of the current major trunk water mains, sewer

1822interceptors and outfalls for proposed District 5. (Comp. Ex.

1831B, Att. 5)

183417. The petition to contract District 2 contains the

1843estimated costs and timetable for future District 2 facilities

1852and services. (Comp. Ex. A, Att. 7) The petition to

1862establish District 5 contains the estimated costs and

1870timetable for proposed District 5 facilities and services.

1878(Comp. Ex. B, Att. 6)

188318. Both the petition to contract District 2 and the

1893petition to establish District 5 contain a copy of the Manatee

1904County Comprehensive Plan. (Comp. Ex. A, Att. 9; Comp. Ex. B,

1915Att. 8) The Future Land Use Plan Element of the Manatee

1926County Comprehensive Plan designates the future general

1933distribution, location and extent of public and private uses

1942of land.

1944Consistency with Comprehensive Plans

194819. From a planning perspective, Goals, 16, 18, and 26

1958of the State Comprehensive Plan, and the policies supporting

1967these goals are particularly relevant to the contraction of

1976District 2 and the establishment of the District 5. (Ex. G,

1987pp. 5-6) Goal 21 of the State Comprehensive Plan, and Policy

19982 thereunder, are also relevant to the contraction of District

20082 and the establishment of District 5 from a management

2018perspective. (Ex. E, pp. 19-21)

202320. Goal 16, "Land Use", recognizes the importance of

2032locating development in areas with the fiscal ability and

2041service capacity to accommodate growth. Community development

2048districts ( CDDs) are intended to provide infrastructure and

2057facilities in a fiscally responsible manner to areas to

2066accommodate growth. The evidence was that District 2, after

2075contraction, will continue to have the fiscal ability and

2084service-capacity to efficiently provide an excellent quality

2091and range of facilities and services to development in Manatee

2101County. The evidence was that District 5, as proposed, will

2111also have the fiscal ability and service-capacity to provide

2120an excellent quality and range of facilities and services to

2130development of Manatee County. (Ex. G, p. 5)

213821. Goal 18, "Public Facilities", directs the State to:

2147( i) protect the investments in public facilities that already

2157exist; (ii) plan for and finance new facilities to serve

2167residents in a timely and efficient manner; (iii) allocate the

2177costs of new public facilities on the basis of benefits

2187received by new residents; (iv) implement innovative but

2195fiscally sound techniques for financing public facilities; and

2203(v) identify and use stable revenue sources for financing

2212public facilities. The evidence was that both District 2, as

2222proposed to be contracted, and proposed District 5 will

2231provide both facilities and services in a timely and efficient

2241manner to the areas within Manatee County to be served by

2252them, allowing the County to focus its resources elsewhere in

2262the County and, thus, provide facilities and services to

2271County residents in a timely and efficient manner. (Ex. G, p.

22826)

228322. The "Governmental Efficiency" goal, Goal 21,

2290requires that Florida governments provide the amount and

2298quality of services required by the public in an economic and

2309efficient manner. The evidence was that proposed District 5

2318will have, and District 2 will continue to have, the fiscal

2329capability to provide quality public services to those who

2338benefit from and pay for those services. With input from

2348their respective constituents, the boards of supervisors of

2356Districts 2 and 5, as proposed, will determine the quality and

2367quantity of services. This is an economic and efficient way

2377to provide services. (Ex. E, pp. 19-21)

238423. Goal 26, "Plan Implementation", encourages the

2391integration of systemic planning into all levels of

2399government, with emphasis on intergovernmental coordination

2405and maximizing citizen involvement. The development plans for

2413Districts 2 and 5, as proposed, contemplate the delivery of

2423improvements in coordination with the general-purpose local

2430government. From a planning perspective, all decisions of

2438Districts 2 and 5, as proposed, will be made at board meetings

2450which are publicly noticed and open to the public, maximizing

2460input from landowners and residents. (Ex. G, pp. 5-6)

246924. The evidence was that the proposed contraction of

2478District 2 and establishment of District 5 are not

2487inconsistent with any applicable goal or policy of the State

2497Comprehensive Plan. (Ex. E, pp. 19-21; Ex. G, pp. 5-6).

250725. From a planning perspective, Objective 10.1.10 of

2515the Capital Improvements Element of the Manatee County

2523Comprehensive Plan relates specifically to the proposed

2530contraction of District 2 and establishment of District 5.

2539This Objective requires the County to utilize funding derived

2548from growth to offset costs for provision of public facilities

2558which serve new growth. (Ex. G, p. 7)

256626. Policy 10.1.10.1 of Manatee County Comprehensive

2573Plan specifically references the establishment of CDDs as

2581funding mechanisms to recapture the costs for providing

2589facilities and services to new growth. (Ex. G, p. 7)

259927. The evidence was that the proposed contraction of

2608District 2 and establishment of District 5 is not inconsistent

2618with any of the applicable goals, objectives, and policies of

2628the Manatee County Comprehensive Plan. (Ex. G, p. 7)

2637Size, Compactness, and Contiguity

264128. The land that currently comprises District 2

2649consists of approximately 2,080 acres, located entirely within

2658unincorporated Manatee County, and generally east of I-75,

2666south of the Braden River, north of the Manatee/Sarasota

2675County line. (Comp. Ex. A, Att. 1) The petition to contract

2686District 2 proposes to contract approximately 706 acres out of

2696District 2. (Comp. Ex. A, Att. 2) District 2, a fter

2707contraction, will consist of approximately 1,374 acres.

2715(Comp. Ex. A, Att. 3) Physically, the land comprising

2724District 2, after contraction, will be compact and contiguous.

273329. The petition for a rule to establish District 5

2743proposes to establish a CDD consisting of approximately 1,173

2753acres, including the 706 acres contracted out of District 2.

2763(Comp. Ex. B, Att. 2; Ex. E, p. 13; Ex. O, p. 9) The area of

2779land within proposed District 5 is bounded by major

2788thoroughfare roads, the Braden River, and existing community

2796development districts. (Comp. Ex. A, Att. 2) Physically, the

2805land comprising District 5 will be compact and contiguous.

281430. From an engineering perspective, the property within

2822CDDs must be sufficiently contiguous so that the proposed

2831facilities and services can be designed, permitted,

2838constructed, and maintained in a cost efficient, technically-

2846sound manner. The property must be sufficiently contiguous to

2855allow for the efficient, cost-effective, functional and

2862integrated use of infrastructure. Most of the facilities and

2871services for District 2, as contracted, have already been

2880designed, permitted, constructed, and are being maintained in

2888a cost effective, technically sound manner. The facilities

2896and services to be provided to proposed District 5 can be

2907designed, permitted, constructed or acquired, and maintained

2914in an efficient, cost effective, functional, and integrated

2922manner. (Ex. F, p. 5)

292731. District 2, after contraction, is comprised of land

2936uses typical of a planned community. From a district

2945management standpoint, this land has been planned and

2953developed as a functional, interrelated community. It will

2961continue to function that way. (Ex. E, pp. 14-15) District 5

2972is also planned to function as an homogeneous residential

2981community developed around a future golf course. (Ex. E, p.

299115)

299232. The evidence was that, from engineering, planning,

3000and management perspectives, the area of land to be included

3010in District 2, as proposed to be contracted, and District 5,

3021as proposed, is of sufficient size and is sufficiently compact

3031and contiguous to be developed as a function interrelated

3040community. (Ex. E, pp. 14-15; Ex. F, p. 5; Ex. G, p. 8)

3053Best Alternative Available

305633. District 2 currently operates and maintains the

3064common infrastructure, facilities and amenities for the

3071property which will remain in District 2, after contraction.

3080Facilities which have been constructed by District 2 include

3089roads, street lighting, water and sewer systems, stormwater

3097management, irrigation, landscape and recreational facilities.

3103Contracting the District 2 boundaries, as proposed, will have

3112no adverse impact on the ability of District 2 to continue to

3124provide these facilities and services. (Ex. E, pp. 15-16)

313334. The property proposed to be contracted out of

3142District 2, approximately 706 acres, is intended for

3150development in conjunction with an additional 467 acres

3158currently owned by Schroeder-Manatee Ranch, Inc.

3164Collectively, this property is planned for development as a

3173future homogeneous community developed around a future golf

3181course. (Ex. O, pp. 9-10; Ex. E, pp. 15-16; Ex. G, pp. 9-10)

319435. It is intended that District 5 will fund the

3204construction of roads, streetlights, utilities, stormwater

3210management, irrigation and landscape facilities. It may also,

3218with the approval of Manatee County, and pursuant to an

3228Interlocal Agreement, construct parks and facilities for

3235indoor and outdoor recreational, cultural and educational

3242uses; fire prevention and control; school buildings and

3250related structures; security; mosquito control; waste

3256collection and disposal. ( Exs. I and J)

326436. It is expected that proposed District 5 will issue

3274bonds to finance these services and improvements. These bonds

3283will be repaid from the proceeds of special assessments on

3293benefited property within proposed District 5. Use of special

3302assessments will ensure that those benefiting from District 5

3311services help pay for those services. (Comp. Ex. B, Att. 7,

3322pp. 8-9)

332437. Alternatives to the use of Districts 2 and 5, as

3335proposed, include the use of a dependent special district for

3345the area, such as a municipal service benefit unit (MSBU) or

3356special taxing district under Chapter 170, Florida Statute.

3364Another alternative is for the developer to provide the

3373infrastructure for the 467 acres not currently located within

3382a CDD, and for a property owner' association (POA) to operate

3393and maintain the community facilities and services. (Comp.

3401Ex. A, Att. 8, p. 10; Comp. Ex. B, Att. 7, p. 10)

341438. The evidence was that proposed Districts 2 and 5 are

3425preferable to an MSBU or special taxing district under Chapter

3435170, Florida Statutes, because these alternatives would

3442require Manatee County to continue to administer the project

3451and its facilities and services. Unlike CDDs, debts of an

3461MSBU or dependent special district are debts of the County;

3471therefore, the costs of these services and facilities are not

3481necessarily allocated to the land directly benefiting from

3489them. CDDs are also a better alternative from a government

3499accountability perspective because residents have a focused

3506unit of government, ultimately under residential control, with

3514limited responsibilities, and responsive to residents' needs.

352139. The evidence was that CDDs are preferable to POAs

3531because CDDs can impose, collect, and enforce assessments like

3540other property taxes. (Comp. Ex. A, Att. 8, p. 10; Comp. Ex.

3552B, Att. 7, p. 10) As a result, there is greater certainty of

3565assuring needed funds are available. Furthermore, CDDs,

3572unlike POAs, are subject to the same statutes and regulations

3582applicable to other local governments. These statutes include

3590Chapters 119 and 286, Florida Statutes. Compliance with these

3599laws ensures the ability of residents, landowners, and the

3608general public to participate in decision-making processes.

3615(Comp. Ex. A, Att. 8, p. 9; Comp. Ex. B, Att. 7, p. 9; Ex. E,

3631p. 8)

363340. SMR has experience in working with existing Lakewood

3642Ranch CDDs. An officer of SMR testified that the Lakewood

3652Ranch CDDs have obtained long-term, fixed rate financing,

3660thereby ensuring that commitments to the residents and County

3669are met, and benefiting the landowners and residents within

3678the CDDs. (Ex. O, p. 9)

368441. The evidence also was that contracting District 2

3693and establishing District 5 is a better alternative than

3702leaving the boundaries of District 2 as they currently exist.

3712The evidence was that, when District 2 was established, the

3722467 acres now proposed to be combined with the 706 acres

3733contracted out of District 2 to form proposed District 5 was

3744not available for inclusion in District 2. Now that the land

3755is available, Chapter 190, Florida Statutes, precludes the

3763addition of the 467 acres to District 2. The evidence was

3774that, since the 1,173 acres to be included in proposed

3785District 5 will be developed as an homogeneous community,

3794sharing infrastructure, facilities and services, the best

3801alternative is to contract District 2 and establish District

38105. (Ex. O, pp. 8-10; Ex. E, pp. 15-17) The evidence was

3822that, from perspectives of engineering, long-term management,

3829and maintenance of facilities and services, contracting

3836District 2 and establishing District 5 is the best alternative

3846for providing long-term, stable entities offering continuity

3853of management functions and capable of maintaining the

3861respective facilities over their lives. (Ex. F, p. 6)

3870Compatibility with Existing Services and Facilities

387642. The petitions do not contemplate any planned

3884duplication of facilities or services. With respect to

3892District 2, after contraction, most of the facilities and

3901services have already been constructed, and they do not

3910duplicate County, or regional facilities or services. The

3918facilities and services to be provided by proposed District 5

3928will not duplicate any facilities and services provided by the

3938County or region. District 5 will supply the additional

3947facilities and services necessary for development that are not

3956provided by local general-purpose government or other

3963governmental entities. (Ex. F, pp. 607; Ex. H, pp. 7-8)

397343. Some of the facilities which have been constructed

3982by District 2, have been dedicated to Manatee County. Some of

3993the facilities which will be constructed by District 5 also

4003will be dedicated to Manatee County. (Comp. Ex. A, Att. 8, p.

40156; Comp. Ex. B, Att. 7, p. 6)

402344. All project infrastructure must comply with County

4031standards and must be consistent with the local comprehensive

4040plan and local land development regulations. (Ex. F, pp. 6-7)

405045. The evidence was that, from engineering, planning,

4058economic, and management perspectives, the services and

4065facilities to be provided by the proposed Districts 2 and 5

4076will not be incompatible with the capacity and uses of

4086existing local and regional community development services and

4094facilities. (Ex. E, pp. 17-18; Ex. F, pp. 6-7; Ex. G, p. 8;

4107Ex. H, pp. 7-8)

4111Amenability to Special District Government

411646. District 2 has been in existence since 1995, and is

4127already providing the infrastructure facilities to the

4134property which will remain in District 2 after the

4143contraction. The evidence was that, from a management

4151perspective, the land area within District 2, after

4159contraction, is sufficiently sized, compact and contiguous to

4167allow District 2 to provide facilities and services which will

4177benefit the residents and property owners within District 2.

4186District 2, after contraction, will continue to be amenable to

4196separate, special district government.

420047. The evidence was that, from a management

4208perspective, the land area within proposed District 5 will

4217benefit from the planned infrastructure to be provided. The

4226size, compactness and contiguity of proposed District 5 also

4235make it amenable to separate, special district governance.

4243(T. 24; Ex. E, pp. 18-19)

424948. The evidence was that, from an engineering

4257perspective, contracting District 2 and establishing District

42645, so that there are two separate units of government, will

4275facilitate the orderly provision of facilities, and their

4283long-term maintenance. With respect to service delivery, both

4291areas are amenable to being served by separate, special

4300districts.

430149. From a professional economic perspective, it is

4309expected that proposed District 5 will levy assessments and

4318fees on the landowners and residents within District 5 who

4328benefit from the improvements in order to fund the

4337construction of the planned improvements. Both District 2,

4345after contraction, and proposed District 5 will levy non- ad

4355valorem assessments to fund operations and maintenance of

4363facilities and services. Districts 2 and 5 will not be

4373dependent on the County for funding, nor is the County liable

4384for any obligations of the District. Therefore, it is more

4394economically and functionally efficient to have a separate

4402special-district government to manage the activities related

4409to the improvements to the land with the District.

441850. It is estimated that the contraction of District 2

4428will result in a 2.4 percent reduction in the costs per

4439equivalent residential unit (ERU) for operations and

4446maintenance. Estimated maintenance assessments would decrease

4452from $1,062 per year to $1,036 per year per ERU in District 2,

4467after contraction. (Tr. 41) This is because some of the

4477landscape maintenance costs currently benefiting District 2

4484will be shared with additional units planned for District 5.

4494(Comp. Ex. A, Att. 8, p. 7; Comp. Ex. B, Att. 7, p. 7)

4508Capital assessments for District 2, after contraction, would

4516not increase, but it cannot be determined at this time if

4527capital assessments would be lowered. (Tr. 41)

4534Agency Comment on the Petition

453951. FLAWAC's Secretary distributed copies of both

4546petitions to the Department of Community Affairs (DCA) and to

4556the Tampa Bay Regional Planning Council (TBRPC) and requested

4565that these agencies review the petitions.

457152. The TBRPC responded by letters dated October 3,

45802000. The TBRPC stated that it had reviewed the petitions,

4590and had no questions or concerns regarding either one. (Comp.

4600Ex. K)

460253. District 2 paid Manatee County a $15,000 filing fee

4613for processing the petition to contract District 2. SMR paid

4623the County a $15,000 filing fee for processing the petition to

4635establish District 5.

463854. On October 24, 2000, Manatee County adopted

4646Resolution R-00-232 supporting the petition to contract

4653District 2 and Resolution R-00-233 supporting the petition to

4662establish District 5. The resolutions were based on the

4671representations in the petitions, which were believed to be

4680true and correct. The County's support of the petitions was

4690subject only to the limitation that separate consent would be

4700required for the exercise of special powers in Section

4709190.012(2), Florida Statutes.

4712CONCLUSIONS

471355. Under Section 190.003(6), Florida Statutes (2000) , a

"4721community development district" (CDD) is "a local unit of

4730special-purpose government which is created pursuant to this

4738act and limited to the performance of those specialized

4747functions authorized by this act; the boundaries of which are

4757contained wholly within a single county; the governing head of

4767which is a body created, organized, and constituted and

4776authorized to function specifically as prescribed in this act

4785for the delivery of urban community development services; and

4794the formation, powers, governing body, operation, duration,

4801accountability, requirements for disclosure, and termination

4807of which are as required by general law." (All of the

4818following statutory citations are to the year 2000

4826codification of the Florida Statutes.)

483156. Sections 190.006 through 190.046 constitute the

4838uniform general law charter of all CDDs, which can be amended

4849only by the Florida Legislature.

485457. Section 190.011 enumerates the general powers of

4862CDDs. These powers include the power of eminent domain inside

4872the district and, with the approval of the governing body of

4883the applicable county or municipality, outside the district

4891for purposes related solely to water, sewer, district roads,

4900and water management.

490358. Section 190.012 lists special powers of CDDs.

4911Subject to the regulatory power of all applicable government

4920agencies, CDDs may plan, finance, acquire, construct, enlarge,

4928operate, and maintain systems, facilities, and basic

4935infrastructures for: water management; water supply, sewer,

4942and wastewater management; needed bridges and culverts; CDD

4950roads meeting minimum county specifications, street lights,

4957and certain mass transit facilities; investigation and

4964remediation costs associated with cleanup of environmental

4971contamination; conservation, mitigation, and wildlife habitat

4977areas; and certain projects within or without the CDD pursuant

4987to development orders from local governments. After obtaining

4995the consent of the applicable local government, a CDD may have

5006the same powers with respect to the following "additional"

5015systems and facilities: parks and recreation; fire

5022prevention; school buildings; security; mosquito control; and

5029waste collection and disposal.

503359. Section 190.046(1) provides for the filing of a

5042petition for contraction of a CDD. Under paragraphs (f) and

5052(g) of Section 190.046(1), petitions to contract a CDD by more

5063than 250 acres "shall be considered petitions to establish a

5073new district and shall follow all of the procedures specified

5083in s. 190.005."

508660. Section 190.005(1)(a) requires that the petition to

5094establish a CDD be filed with FLAWAC and submitted to the

5105County. The petition must describe by metes and bounds the

5115proposed area to be serviced by the CDD with a specific

5126description of real property to be excluded from the district.

5136The petition must set forth that the petitioner has the

5146written consent of the owners of all of the proposed real

5157property in the CDD, or has control by "deed, trust agreement,

5168contract or option" of all of the proposed real property. The

5179petition must designate the five initial members of the Board

5189of Supervisors of the CDD and the district’s name. The

5199petition must contain a map showing current major trunk water

5209mains and sewer interceptors and outfalls, if any. Both the

5219petition to contract District 2 and the petition to establish

5229District 5 meet those requirements.

523461. Section 190.005(1)(a) also requires that the

5241petition propose a timetable for construction and an estimate

5250of construction costs. The petition must designate future

5258general distribution, location, and extent of public and

5266private uses of land in the future land-use element of the

5277appropriate local government. The petition must also contain

5285a Statement of Estimated Regulatory Cost. Both the petition

5294to contract District 2 and the petition to establish District

53045 meet those requirements.

530862. Section 190.005(1)(a) also requires the petitioner

5315to provide a copy of the local government’s growth management

5325plan (the local government comprehensive plan). District 2

5333and SMR have done so.

533863. Section 190.005(1)(b) requires that the petitioner

5345pay a filing fee of $15,000 to the county and to each

5358municipality whose boundaries are within or contiguous to the

5367CDD. The petitioner must serve a copy of the petition on

5378those local governments, as well. District 2 and SMR have met

5389those requirements.

539164. Section 190.005(1)(c) permits the county and each

5399municipality described in the preceding paragraph to conduct

5407an optional public hearing on the petition. Such local

5416governments may then present resolutions to FLAWAC as to the

5426proposed property for the CDD. Manatee County has exercised

5435this option and has adopted a resolution in support of the

5446contraction of District 2 and establishment of District 5.

545565. Section 190.005(1)(d) requires a DOAH ALJ to conduct

5464a local public hearing pursuant to Chapter 120, Florida

5473Statutes. The hearing "shall include oral and written

5481comments on the petition pertinent to the factors specified in

5491paragraph (e)." Section 190.005(1)(d) specifies that the

5498petitioner must publish notice of the local public hearing

5507once a week for the four successive weeks immediately prior to

5518the hearing. District 2 and SMR have met those requirements.

552866. Under Section 190.005(1)(e), FLAWAC must consider

5535the following factors in determining whether to grant or deny

5545a petition for the establishment of a CDD:

55531. Whether all statements contained within

5559the petition have been found to be true and

5568correct.

55692. Whether the establishment of the

5575district is inconsistent with any

5580applicable element or portion of the state

5587comprehensive plan or of the effective

5593local government comprehensive plan.

55973. Whether the area of land within the

5605proposed district is of sufficient size, is

5612sufficiently compact, and is sufficiently

5617contiguous to be developable as one

5623functional interrelated community.

56264. Whether the district is the best

5633alternative available for delivering

5637community development services and

5641facilities to the area that will be served

5649by the district.

56525. Whether the community development

5657services and facilities will be

5662incompatible with the capacity and uses of

5669existing local and regional community

5674development services and facilities.

56786. Whether the area that will be served by

5687the district is amenable to separate

5693special-district government.

5695Factor 1

569767. Some statements in the original petition to contract

5706District 2 were not true and correct and had to be revised.

5718As revised, all statements in the petition were shown by the

5729evidence to be true and correct. All statements in the

5739petition to establish District 5 were shown by the evidence to

5750be true and correct. There was no evidence to the contrary.

5761Factor 2

576368. In these cases, the evidence was that the proposed

5773contraction of District 2 and establishment of District 5 are

5783not inconsistent with any applicable element or portion of the

5793state comprehensive plan or of the local government

5801comprehensive plan. There was no evidence to the contrary.

581069. (A different and more detailed review is required to

5820determine that future development within the proposed CDDs

5828will be consistent with all applicable laws and local

5837ordinances and the Manatee County Comprehensive Plan.

5844Establishment of a CDD does not constitute and should not be

5855construed as a development order or any other kind of approval

5866of the development anticipated in the CDD. Such

5874determinations are made in other proceedings.)

5880Factor 3

588270. In these cases, the evidence was that the areas of

5893land within District 2, as proposed to be contracted, and

5903within proposed District 5 are of sufficient size, are

5912sufficiently compact, and are sufficiently contiguous for each

5920proposed CDD to be developable as a functional, interrelated

5929community. There was no evidence to the contrary.

5937Factor 4

593971. In these cases, the evidence was that District 2, as

5950proposed to be contracted, and proposed District 5 are the

5960best alternatives available for delivering community

5966development services and facilities to the areas that will be

5976served by those two proposed CDDs. There was no evidence to

5987the contrary.

5989Factor 5

599172. In these cases, the evidence was that the proposed

6001community development services and facilities will not be

6009incompatible with the capacity and uses of existing local and

6019regional community development services and facilities. There

6026was no evidence to the contrary.

6032Factor 6

603473. In these cases, the evidence was that the areas to

6045be served by District 2, as proposed to be contracted, and

6056proposed District 5 are amenable to separate special-district

6064government. There was no evidence to the contrary.

6072REPORT AND CONCLUSIONS SUBMITTED this 22nd day of

6080January, 2001, in Tallahassee, Leon County, Florida.

6087___________________________________

6088J. LAWRENCE JOHNSTON

6091Administrative Law Judge

6094Division of Administrative Hearings

6098The DeSoto Building

61011230 Apalachee Parkway

6104Tallahassee, Florida 32399-3060

6107(850) 488-9675 SUNCOM 278-9675

6111Fax Filing (850) 921-6847

6115www.doah.state.fl.us

6116Filed with the Clerk of the

6122Division of Administrative Hearings

6126this 22nd day of January, 2001.

6132COPIES FURNISHED:

6134Erin McCormick Larrinaga, Esquire

6138Fowler, White, Gillen, Boggs,

6142Villareal and Banker, P.A.

6146Post Office Box 1438

6150Tampa, Florida 33601-1438

6153Jose Luis Rodriguez, Esquire

6157Governor's Legal Office

6160The Capital, Room 209

6164Tallahassee, Florida 32399-0001

6167Donna Arduin, Secretary

6170Florida Land and Water Adjudicatory

6175Commission

6176Executive Office of the Governor

61812105 The Capitol

6184Tallahassee, Florida 32399

6187Barbara Leighty, Clerk

6190Growth Management and Strategic

6194Planning

6195The Capitol, Suite 2105

6199Tallahassee, Florida 32399

6202Charles Canaday, General Counsel

6206Office of the Governor

6210Department of Legal Affairs

6214The Capitol, Suite 209

6218Tallahassee, Florida 32399-0001

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 04/02/2001
Proceedings: Agency Final Order
PDF:
Date: 04/02/2001
Proceedings: Final Order filed.
PDF:
Date: 01/22/2001
Proceedings: Recommended Order
PDF:
Date: 01/22/2001
Proceedings: Report cover letter identifying hearing record referred to the Agency sent out.
PDF:
Date: 01/22/2001
Proceedings: Report and Conclusions of Administrative Law Judge. Hearing held December 20, 2000. CASE CLOSED.
Date: 01/04/2001
Proceedings: Composite Exhibit A and B; Exhibit 9; Exhibit 8 filed.
PDF:
Date: 01/04/2001
Proceedings: Petitioners` Proposed Report of Findings and Conclusions filed.
PDF:
Date: 01/04/2001
Proceedings: Notice of Filing Proposed Report of Findings and Conclusions filed by Petitioners.
PDF:
Date: 01/02/2001
Proceedings: Motion for Extension of Time to File Proposed Report of Findings and Conclusions (filed via facsimile).
Date: 12/22/2000
Proceedings: Transcript filed.
PDF:
Date: 12/14/2000
Proceedings: Notice of Filing Pre-filed Direct Testimony of Witnesses filed.
PDF:
Date: 11/15/2000
Proceedings: Order Granting Continuance and Re-scheduling Hearing issued (hearing set for December 20, 2000; 1:00 p.m.; Bradenton, FL).
PDF:
Date: 11/15/2000
Proceedings: Motion to Reset Hearing (filed by Petitioners via facsimile).
PDF:
Date: 10/27/2000
Proceedings: Order Granting Continuance and Re-scheduling Hearing issued (hearing set for November 21, 2000, 1:00 p.m., Bradenton, Fl.). 11/21/00)
PDF:
Date: 10/27/2000
Proceedings: Motion to Continue Hearing (filed by Petitioners via facsimile).
PDF:
Date: 10/03/2000
Proceedings: Notice of Hearing issued (hearing set for November 14, 2000, 1:00 p.m., Bradenton, Fl.).
PDF:
Date: 10/03/2000
Proceedings: Order Consolidating Cases issued. (consolidated cases are: 00-003949, 00-003950)
PDF:
Date: 09/29/2000
Proceedings: Response to Revised Initial Order (filed by Petitioner via facsimile).
PDF:
Date: 09/25/2000
Proceedings: Petition to Contract Lakewood Ranch Community Development District 2 (Exhibits Tagged) filed.
PDF:
Date: 09/25/2000
Proceedings: Agency referral filed.
Date: 09/25/2000
Proceedings: Initial Order issued.

Case Information

Judge:
J. LAWRENCE JOHNSTON
Date Filed:
09/25/2000
Date Assignment:
09/25/2000
Last Docket Entry:
04/02/2001
Location:
Bradenton, Florida
District:
Middle
Agency:
ADOPTED IN TOTO
 

Counsels

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Related Florida Statute(s) (6):

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