02-004357 In Re: Petition For Rule Amendment - Fiddler`s Creek Community Development District vs. * Status: Closed Recommended Order on Tuesday, February 25, 2003.

Summary: Petition to expand and contract Community Development District and change name. Report summarized hearing and pointed out some differences between hearing record and apparent statutory provisions.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: PETITION FOR RULE )

AMENDMENT - FIDDLER'S CREEK ) Case No. 02 - 4357

COMMUNITY DEVELOPMENT DISTRICT. )

)

ADMINISTRATIVE LAW JUDGE'S REPORT

TO THE FLORIDA LA ND AND WATER

ADJUDICATORY COMMISSION

On January 23, 2003, a local public hearing was conducted

in this matter in Naples, Florida, before J. Lawrence Johnston,

Administrative Law Judge (ALJ) of the Division of Administrative

Hearings (DOAH).

APPEARANCES

For Petitioner: Kenza van Assenderp, Esquire

Young, van Assenderp, Varnadoe

& Anderson, P.A.

225 South Adams Street, Suite 200

Tallahassee, Florida 32302 - 1833

For Collier County: Patrick White, Esquire

Collier County Attorney's Office

3301 Tamiami Trail East

Naples, Florida 34112

For Landowners: Mark J. Woodward, Esquire

Woodward, Pires & Lombardo, P.A.

3200 Tamiami Trail North, Suite 200

Naples, Florida 34103

STATEMENT OF THE "ISSUE"

At "issue" in this hearing was a petition to amend Rule

42X - 1, Florida Administrative Code , to expand the boundaries of

the Fiddler's Creek Community Development District (CDD) by

approximately 137 acres and simultaneously contract the

boundarie s by approximately 137 acres (for approximately no net

change in overall total acreage), and to change its name by

adding the numeral 1.

PRELIMINARY STATEMENT

On October 18, 2002, Fiddler's Creek CDD filed with the

Florida Land and Water Adjudicatory Co mmission (FLAWAC) a

Petition for Rulemaking to Amend the Boundaries and Amend the

Name of the Fiddler's Creek Community Development District

(Petition). Although the Petition asked FLAWAC to forward it to

the CDD's Board of Supervisors for a local public hearing under

Section 190.046(1)(d)4, Florida Statutes, FLAWAC instead

referred the Petition to DOAH on November 6, 2002, for

assignment of an ALJ to conduct a local public hearing under

Section 190.005(1)(d), Florida Statutes. The local public

hearing be fore the ALJ was scheduled for 9:00 a.m. on

January 23, 2003, in the Collier County Courthouse in Naples,

Florida.

Collier County, in whose unincorporated land area the CDD

exists, entered into a Prehearing Stipulation with Petitioner as

to all matters to be presented by Petitioner at the local public

hearing, including the Resolution of the Board of County

Commissioners of Collier County supporting the Petition. The

Prehearing Stipulation was presented at the local public hearing

and became a part of J oint Composite Exhibit 1, which was

received in evidence (Tr. 33).

The witnesses who testified during the local public hearing

are identified in Appendix A to this Report; the Joint Composite

Exhibits received during the local public hearing are described

in Appendix B to this Report. After the local public hearing,

Petitioner filed a proposed Report and Conclusions, with

Recommendation to FLAWAC, which has been considered in the

preparation of this Report.

SUMMARY OF HEARING

A. Petition and Related M atters

1. The 1,389 - acre Fiddler's Creek CDD was established in

1996 by adoption of Rule 42X - 1, Florida Administrative Code . It

was part of a master plan for eventual development of a 3,900 -

acre luxury golf course community. Subsequently, it was decide d

to establish a second CDD using the Fiddler Creek name and to

"square off" the boundaries of the two CDDs to make them more

logical and easier to develop and manage. As part of the

implementation of that decision, Collier County granted a

petition to es tablish Fiddler's Creek CDD 2 on land in

unincorporated Collier County which includes 137.38 acres that

also are part of the original Fiddler's Creek CDD but not yet

developed. The Petition at issue in this case seeks to amend

Rule 42X - 1 to contract out t hose 137.38 acres; to add a

different 137.38 acres to "square off" the original CDD and

include all of a golf course and some development sites that

currently are partially outside the boundaries of the original

CDD; and to add the numeral 1 to the name of the original CDD so

as to distinguish it from Fiddler's Creek CDD 2, which has been

established by Collier County. The Petition alleges that, after

the boundary amendments, the CDD would continue to serve

approximately 1,389 acres.

2. Joint Composite Ex hibit 1, B, is a copy of the

Petition, with exhibits. However, for several reasons, the

Petition Exhibits are clearer and more accurate than the copies

furnished as part of Joint Composite Exhibit 1, B. As a result,

the actual Petition Exhibits also are being furnished along with

this Report.

3. The numbering of the Petition Exhibits in Joint

Composite Exhibit 1, B, is somewhat confusing since the Petition

itself was identified as Joint Composite Exhibit 1, B - 1. As a

result, Petition Exhibits 1 throug h 7 are identified as Joint

Composite Exhibit 1, B - 2 through B - 8 (together with exhibit

subparts where applicable.) Then, to confuse matters more, B - 8

is repeated to also identify Petition Exhibit 8; as a result,

Petition Exhibits 9 and 10 are identified as Joint Composite

Exhibit 1, B - 9 and B - 10.

4. The Petition alleges that the "expansion parcel" and

"contraction parcel" are described on location maps,

respectively Exhibit "1 - A" and Exhibit "1 - B" to the Petition.

5. The Petition also alleges that the metes and bounds

legal description of the boundaries of the existing CDD is set

forth in Petition Exhibit "2 - A"; the metes and bounds legal

description of the expansion parcel is set forth in Petition

Exhibit "2 - B"; the metes and bounds legal descripti on of the

contraction parcel is set forth in Petition Exhibit "2 - C"; and

the proposed boundaries of the CDD after the proposed rule

amendment is set forth in Petition Exhibit "2 - D". However, the

copies furnished as Joint Composite Exhibit 1, B - 3, are not

clearly labeled, are incomplete, and are difficult to read.

6. The Petition alleges that there is no real property

within the proposed amended boundaries of the CDD to be excluded

from the jurisdiction of the CDD. However, it does appear that

enclaves exist within the existing CDD and will continue to

exist within the proposed amended CDD. The larger enclaves are

part of the "Marco Shores Unit 30 Golf Course," the plat of

which is recorded in Plat Book 17 at pages 98 through 103 in the

Public Records of Collier County. There also are other, smaller

enclaves -- one owned by the Collier County School Board (O.R.

Book 1495, pages 384, 385, and 387), and one owned by Collier

County (O.R. Book 1755, page 361). It does not appear from the

evidence that these enclaves have adversely affected the

existing CDD or that they would adversely affect the CDD

proposed to result from rule amendment.

7. The Petition alleges that Petition Exhibit "3 - A",

subsections (1) through (3), contains documentation constituting

written consent of all landowners of the expansion parcel --

namely, GB Peninsula, Ltd., DY Land Associates, Ltd., and 951

Land Holdings, Ltd. These consents are worded in such a way

that it is not clear whether all three jointly own all of the

expansion p arcel or whether the three own parts of the expansion

parcel which, when combined, constitute the entire expansion

parcel.

8. The Petition alleges that Petition Exhibit "3 - B"

contains Resolution 2002 - 01 of the Board of Supervisors of the

existing CDD c onsenting to deletion of the contraction parcel.

9. The Petition did not allege that all landowners within

the existing CDD consented in writing to the proposed

simultaneous expansion and contraction. However, consent of the

owners of the contraction p arcel, GB Peninsula, Ltd., and 951

Land Holdings, Ltd., was put on the record of the local public

hearing represented orally by attorney for the parcel owners at

the hearing and was supplemented by written consent filed and

offered on February 4, 2003, as Joint Composite Exhibit 2.

10. Paragraph 9 of the Petition sets forth the names of

the five persons who have been duly and validly elected to the

Board of Supervisors and who currently serve on the Board of

Supervisors of the existing CDD.

11. The Pe tition provides a variety of information, also

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

with existing facilities; the proposed timetable and estimated

cost of construction of additional systems, facilities, and

services to be provided b y the CDD to the expansion parcel

(Petition Exhibit "5"); absence of any services or facilities

currently being provided by the CDD to the contraction parcel;

and various allegations about consistency with the Collier

County plan.

12. The Petition allege s that Petition Exhibit "7" is the

Statement of Estimated Regulatory Costs (SERC) required by

Sections 120.541 and 190.005(1)(a)8, Florida Statutes. The

Petition also acknowledges that any existing interlocal

agreements between the existing CDD and the Co llier County Water

Sewer District will be maintained, honored, applied to the

expansion parcel, but no longer to the contraction parcel.

13. The Petition attaches as Petition Exhibit "9" written

discussions of planning and engineering aspects of the

con traction and expansion by a qualified engineer and a

qualified planner.

14. The Petition states that, after expansion, and if

applicable, the CDD Board of Supervisors may petition Collier

County to consent to the CDD's exercise of certain special

powers under Section 190.012(2), Florida Statutes.

15. The Petition alleges that copies, together with a

filing fee of $1,500, were sent to Collier County on October 16,

2002, and alleges that none of the property is in the

jurisdiction of any municipality.

16. The Petition asked FLAWAC to forward it to the CDD's

Board of Supervisors for a local public hearing under Section

190.046(1)(d)4, Florida Statutes. Instead, FLAWAC referred the

Petition to DOAH for assignment of an ALJ to conduct a local

public he aring under Section 190.005(1)(d), Florida Statutes.

B. Additional Information from Local Public Hearing

17. The local public hearing on the Petition was noticed

for January 23, 2003, in the Collier County Courthouse, an

accessible location, in Naple s, Florida. Notice of the hearing

was advertised on January 1, 8, 15, and 22, 2003, in the Naples

Daily News , a newspaper of general paid circulation in the

county, and of general interest and readership in the community,

not one of limited subject matter , pursuant to Chapter 50,

Florida Statutes. The published notices gave the time and place

for the hearing; a description of the area to be included in the

CDD, including a map showing clearly the area to be covered by

the CDD; and other relevant informati on. The advertisements

were not placed in that portion of the newspaper where legal

notices and classified advertisements appear.

18. The hearing was commenced fifteen minutes after the

noticed and scheduled time in order to give any persons who

wante d to attend ample time to do so (Tr. 4). Appearances were

made then by counsel for the petitioning CDD, for Collier

County, and for the owners of the expansion and contraction

parcels -- 951 Land Holdings, Ltd., G.B. Peninsula, Ltd., and DY

Land Associates, Ltd. (Tr. 4 - 5). No one else attended the local

public hearing except for witnesses for Petitioner.

19. The attorney representing Collier County explained

that, in deciding to support the Petition, the County was

specifically aware that a filing fee of $1,500 was paid. The

County accepted the $1,500 filing fee as sufficient for three

reasons. First, the County thought that $1,500 was the

applicable filing fee under Section 190.046(1), Florida

Statutes, because the simultaneous expansion and contractio n was

a net "wash" in acreage. Second, the County thought Petitioner

could have proceeded in two separate petitions, one for

expansion and the other for contraction, each without tripping

the statutory threshold. As argued by Petitioner in its

proposed R eport, "therefore, and accordingly, in order to save

time, costs and space, to enter into the two separate expansion

and contraction processes by being one process is the legal

equivalent of each of the separate processes." (However, under

this rationale two fees of $1,500 would be required, one for the

expansion and one for the contraction.) Third, the County

believed that $1,500, together with the $15,000 filing fee for

the original establishment of the CDD in 1996, was more than

enough to adequately co mpensate the County for the work of its

staff in connection with both original establishment and the

pending Petition.

20. Mark Woodward, Esquire, attorney representing 951 Land

Holdings, G.B. Peninsula, and DY Land Holdings, was sworn and

testified th at the landowners he represents, owned not only the

approximately 137.38 - acre expansion parcel (for which written

consents were included in the Petition), but also the

approximately 137.38 - acre contraction parcel. Woodward

confirmed his clients' consent t o contraction as well as

expansion (Tr. 6 - 9). Woodward represented that he would obtain

from his clients their written consent to contraction after the

hearing and provide the written consent to Petitioner. This was

done, and Petitioner filed the written consent on February 4,

2003, as Joint Composite Exhibit 2.

21. Woodward testified that the land proposed to be

contracted out of the existing Fiddler's Creek CDD is included

already in Fiddler's Creek Community Development District 2,

recently establis hed by Collier County ordinance. He also

explained that the proposed expansion would pick up portions of

a golf course and development sites partially inside and

partially outside the existing CDD so that the proposed new CDD

boundaries would "square - up," be consistent, have an entire golf

course within its boundaries, and not have any development sites

straddling the boundary (Tr. 15).

22. The next witness was James Ward, vice president of

Operations for Severn Trent Services and, in that capacity,

man ager of the existing Fiddler's Creek CDD. Ward concurred

with Woodward's explanation of the purposes of the proposed

simultaneous expansion and contraction. (Tr. 18). Ward also

concurred that it is appropriate to "square - off" the boundaries

for those re asons (Tr. 21, 32 - 33). Ward confirmed the payment

of $1,500 to Collier County for the processing fee, as alleged

in the Petition, and testified that, to the best of his

knowledge, all procedural requirements were met. Ward also was

tendered and accepted as an expert capable of giving opinion

testimony on management of CDDs and delivery of infrastructure

to them (Tr. 31 - 32). Based on Ward's testimony, Joint

Composite Exhibit 1 was received in evidence (Tr. 33).

23. The next witness was William Terry C ole, a civil

engineer and a vice president of Hole Montes, Inc. (Tr. 34 - 35).

Cole was tendered and accepted as an expert capable of giving

opinion testimony, from an engineering perspective, on different

alternatives for the provision of infrastructure, i ncluding the

alternative of a community development district (Tr. 36 - 38). He

summarized and adopted his engineering "white paper," which is

included in Petition Exhibit 9 - A (also identified as Joint

Composite Exhibit 1, B - 9). In testimony as well as in h is

"white paper," Cole addressed the six factors listed under

Section 190.005(1)(e), Florida Statutes, from an engineering

perspective (Tr. 35). Cole testified that he had reviewed the

Petition with its attached exhibits and that, to his best

knowledge fr om an engineering perspective, the information is

true and correct (Tr. 39). He then testified to reviewing the

State Comprehensive Plan and the County Comprehensive Plan,

specifically as to the proposed amendments of the boundaries of

the existing CDD, b y both expansion and contraction, as to

whether such amendments would be inconsistent with the plans.

His conclusion as an engineer was that they were in fact

consistent with those plans (Tr. 39). With regard to the

expansion parcel, and then the total l and area to be serviced by

the proposed expanded CDD, he determined that the land area of

proposed CDD would be of sufficient size, sufficient

compactness, and sufficient contiguity to be developed as one

functional interrelated community (Tr. 39 - 40). He then

testified that he did not find the expanded parcel, and the

entire land area as expanded, to be incompatible with any

existing community development systems, services, or facilities

in the land area as proposed to be amended by the rule (Tr. 40).

He t hen testified that the land area proposed to be serviced by

the CDD after the expansion would be amenable to separate CDD

governance and that he had not discovered any problem with

regard to this particular expansion parcel or related matters

(Tr. 41). He then testified that, as a result of his evaluation

of the statutory factors, he did not discover any problem that

needed to be pointed out to the ALJ or FLAWAC (Tr. 41).

24. The next witness was Carey Garland, who was tendered

and accepted as an exper t witness capable of giving opinion

testimony on SERCs and financial aspects of CDDs (Tr. 45).

Garland then summarized the statutorily required elements of the

SERC (Exhibit 7 to the Petition, and also identified as Joint

Composite Exhibit 1, B - 8), which was prepared by his colleague,

Dr. Henry Fishkind, but reviewed and approved by Garland (Tr.

45). Garland specifically referred to the SERC's Table 1,

noting that there will be, as a net result of the proposed

simultaneous expansion and contraction, a tot al of eight

additional dwelling units (Tr. 46). He indicated that the costs

to state and local governmental entities as a result of this

rule amendment will be marginal at best, quite small in relation

to the overall budget of these governmental entities (Tr. 46 -

47). He pointed out that the SERC makes a good faith estimate

of the number of individuals and entities likely to be required

to comply with such a rule amendment (Tr. 46). He indicated

that there should be no impact on state and local revenues

b ecause the CDD has its own source of revenues (Tr. 46). He

discussed the SERC's good faith estimate of the transactional

cost to be incurred by individuals and entities within the CDD,

as amended.

25. Garland pointed out that approximately $3.8 million

dollars of capital improvements are planned within the expansion

area if the CDD boundary is amended; however, at the same time,

approximately $11.9 million dollars of capital improvement

programs currently planned for the contraction parcel would not

hav e to be undertaken (Tr. 47). The net result is a reduction

of infrastructure of approximately $8 million dollars. Garland

then summarized the CDD's assessment methodology and how the

assessments would be used to pay off the bonds, testifying that

the CDD 's assessment report properly and fairly determines and

apportions assessments based on land use categories. He pointed

out that additional units coming into the expansion area would

be subject to the already - adopted assessment methodology for the

existin g, petitioning CDD (Tr. 47). As a result, new homeowners

in the land area within the CDD, as amended, would pay an

assessment equal to the assessments of like - situated persons,

within each land use category (Tr. 48).

26. Garland testified that, althoug h there will be a net

$8 million reduction in capital improvements, there probably

would not be any addition or reduction in the assessment to any

of the property of the homeowners within the CDD, as amended,

because there is such a low number of net new u nits (Tr. 49).

However, the evidence was not clear, for comparison purposes, as

to the total capital costs for the CDD, as amended (Tr. 51).

There also was no exact evidence as to the total number of

dwelling units expected for the CDD, as amended. But there was

evidence that more than 3,000 dwelling units are expected to be

developed within the 3,000, plus, acres in the master - planned

Fiddler's Creek Community Development, consisting of both the

CDD 1, as amended, and the County - established CDD 2 (SERC p.1,

Joint Composite Exhibit 1, B - 8, Petition Exhibit 7). (There

also was evidence that the precise total acreage of the master -

planned community is 3,921 acres. See page 2 of Petition

Exhibit 9 - B, also identified as Joint Composite Exhibit B - 9a.)

If de nsity in the proposed amended CDD is proportionate, there

would be approximately 1,389 units in the CDD.

27. Garland testified that, while developers on occasion

will "buy down" a bond when assessments are too high, he did not

expect that to happen in t he case of this CDD, as amended (Tr.

51).

28. Garland acknowledged that his comments addressed only

the infrastructure capital side, not the maintenance side. He

stated that the CDD's Manager, James Ward, could opine as to how

the amendment would affec t the maintenance side. However, Ward

did not testify on the subject.

29. Garland also testified that the SERC assessed the

impact on small businesses as being a positive impact since the

CDD has to bid its projects out in the public, giving small

busi nesses the opportunity to bid and get work (Tr. 51 - 52).

Garland stated that Collier County is not a small county so that

the requirement to assess impact on small counties is not

applicable to this Petition (Tr. 52). Garland concluded by

stating that he had not discovered any problems from a

financial, economic, or estimated regulatory cost standpoint

that would arise from this proposed expansion or contraction

(Tr. 52).

30. The last witness to testify was Mr. Michael Redd, who

was accepted as an exper t capable of giving opinion testimony on

alternative ways to deliver infrastructure to planned community

developments from a land use planning perspective. He adopted

his planning "white paper" in Petition Exhibit 9 - B (also

identified as Joint Composite E xhibit 1, B - 9a). He also

testified from his planning perspective as to the six factors

listed in Section 190.005(1)(e), Florida Statutes. As to the

first factor, he stated that he had reviewed the Petition and

its attachments and determined that they wer e correct and true

(Tr. 56). He then testified that he had compared and reviewed

the proposed amendments in the light of the state comprehensive

plan and the county comprehensive plan and concluded that they

would not be inconsistent with either of the pl ans (Tr. 57). He

determined from a planning perspective that the land area was of

sufficient size, sufficient compactness, and sufficient

contiguity to function as an interrelated functional community,

even and expressly after the proposed simultaneous ex pansion and

contraction (Tr. 57 - 58). He then testified that the proposed

CDD, as amended, was very compatible with existing local and

regional community development services (Tr. 58). He also

testified that the proposed amended CDD would be amenable to

s eparate CDD government (Tr. 58). He saw no problems that

needed to be pointed out as to any of those factors. He

concluded, based on consideration of those factors, that the

CDD, as amended, would be the best alternative for delivery of

services (Tr. 59) .

APPLICABLE LAW

31. Chapter 190, Florida Statutes, creates a local unit of

special - purpose government called a "community development

district," which has the power to function specifically as

prescribed by statute for the delivery of urban community

d evelopment systems, facilities and services.

32. Section 190.005(1), Florida Statutes, provides:

The exclusive and uniform method for the

establishment of a community development

district with a size of 1,000 acres or more

shall be pursuant to a rule, adopted under

chapter 120 by the Florida Land and Water

Adjudicatory Commission, granting a petition

for the establishment of a community

development district.

(a) A petition for the establishment of a

community development district shall be

filed by the petitioner with the Florida

Land and Water Adjudicatory Commission. The

petition shall contain:

1. A metes and bounds description of the

external boundaries of the district. Any

real property within the external boundaries

of the district which is to be excluded from

the district shall be specifically

described, and the last known address of all

owners of such real property shall be

listed. The petition shall also address the

impact of the proposed district on any real

property within the external bound aries of

the district which is to be excluded from

the district.

2. The written consent to the establishment

of the district by all landowners whose real

property is to be included in the district

or documentation demonstrating that the

petitioner has con trol by deed, trust

agreement, contract, or option of 100

percent of the real property to be included

in the district, and when real property to

be included in the district is owned by a

governmental entity and subject to a ground

lease as described in s. 190.003(13), the

written consent by such governmental entity.

3. A designation of five persons to be the

initial members of the board of supervisors,

who shall serve in that office until

replaced by elected members as provided in

s. 190.006.

4. The propo sed name of the district.

5. A map of the proposed district showing

current major trunk water mains and sewer

interceptors and outfalls if in existence.

6. Based upon available data, the proposed

timetable for construction of the district

services and th e estimated cost of

constructing the proposed services. These

estimates shall be submitted in good faith

but shall not be binding and may be subject

to change.

7. A designation of the future general

distribution, location, and extent of public

and privat e uses of land proposed for the

area within the district by the future land

use plan element of the effective local

government comprehensive plan of which all

mandatory elements have been adopted by the

applicable general - purpose local government

in compli ance with the Local Government

Comprehensive Planning and Land Development

Regulation Act.

8. A statement of estimated regulatory

costs in accordance with the requirements of

s. 120.541.

(b) Prior to filing the petition, the

petitioner shall:

1. Pay a f iling fee of $15,000 to the

county and to each municipality the

boundaries of which are contiguous with, or

contain all or a portion of the land within,

the external boundaries of the district.

2. Submit a copy of the petition to the

county and to each mu nicipality the

boundaries of which are contiguous with, or

contain all or a portion of, the land within

the external boundaries of the district.

(c) Such county and each such municipality

may conduct a public hearing to consider the

relationship of the pe tition to the factors

specified in paragraph (e). The public

hearing shall be concluded within 45 days

after the date the petition is filed unless

an extension of time is requested by the

petitioner and granted by the county or

municipality. The county o r municipality

holding such public hearing may by

resolution express its support of, or

objection to the granting of, the petition

by the Florida Land and Water Adjudicatory

Commission. A resolution must base any

objection to the granting of the petition

upon the factors specified in paragraph (e).

Such county or municipality may present its

resolution of support or objection at the

Florida Land and Water Adjudicatory

Commission hearing and shall be afforded an

opportunity to present relevant information

i n support of its resolution.

(d) A local public hearing on the petition

shall be conducted by a hearing officer in

conformance with the applicable requirements

and procedures of the Administrative

Procedure Act. The hearing shall include

oral and written comments on the petition

pertinent to the factors specified in

paragraph (e). The hearing shall be held at

an accessible location in the county in

which the community development district is

to be located. The petitioner shall cause a

notice of the hear ing to be published in a

newspaper at least once a week for the 4

successive weeks immediately prior to the

hearing. Such notice shall give the time

and place for the hearing, a description of

the area to be included in the district,

which description sha ll include a map

showing clearly the area to be covered by

the district, and any other relevant

information which the establishing governing

bodies may require. The advertisement shall

not be placed in that portion of the

newspaper where legal notices and classified

advertisements appear. The advertisement

shall be published in a newspaper of general

paid circulation in the county and of

general interest and readership in the

community, not one of limited subject

matter, pursuant to chapter 50. Whenever

possible, the advertisement shall appear in

a newspaper that is published at least 5

days a week, unless the only newspaper in

the community is published fewer than 5 days

a week. All affected units of general -

purpose local government and the general

publ ic shall be given an opportunity to

appear at the hearing and present oral or

written comments on the petition.

(e) The Florida Land and Water Adjudicatory

Commission shall consider the entire record

of the local hearing, the transcript of the

hearing, re solutions adopted by local

general - purpose governments as provided in

paragraph (c), and the following factors and

make a determination to grant or deny a

petition for the establishment of a

community development district:

1. Whether all statements contai ned 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 fo r delivering

community development services and

facilities to the area that will be served

by the district.

5. Whether the community development

services and facilities of the district 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.

(f) The Florida Land and Water Adjudicatory

Commission shall not adopt any rule which

wou ld expand, modify, or delete any

provision of the uniform community

development district charter as set forth in

ss. 190.006 - 190.041, except as provided in

s. 190.012. A rule establishing a community

development district shall:

1. Describe the external b oundaries of the

district and any real property within the

external boundaries of the district which is

to be excluded.

2. Name five persons designated to be the

initial members of the board of supervisors.

3. Name the district.

(g) The Florida Land and Water Adjudicatory

Commission may adopt rules setting forth its

procedures for considering petitions to

establish, expand, modify, or delete uniform

community development districts or portions

thereof consistent with the provisions of

this section.

Most of the rules of procedure adopted by FLAWAC have been

repealed, and none of those remaining specifically address

expansion, contraction, or modification of a CDD. Subsection

(2) of the statute provides for a method of establishing CDDs of

less than 1,000 acres by county ordinance.

33. Section 190.046(1), Florida Statutes, provides in

pertinent part:

The board may petition to contract or expand

the boundaries of a community development

district in the following manner:

(a) The petition shall contain t he same

information required by s. 190.005(1)(a)1.

and 8. In addition, if the petitioner seeks

to expand the district, the petition shall

describe the proposed timetable for

construction of any district services to the

area, the estimated cost of construc ting the

proposed services, and the designation of

the future general distribution, location,

and extent of public and private uses of

land proposed for the area by the future

land use plan element of the adopted local

government local comprehensive plan. If the

petitioner seeks to contract the district,

the petition shall describe what services

and facilities are currently provided by the

district to the area being removed, and the

designation of the future general

distribution, location, and extent of pu blic

and private uses of land proposed for the

area by the future land element of the

adopted local government comprehensive plan.

(b) For those districts initially

established by county ordinance, the

petition for ordinance amendment shall be

filed with the county commission. If the

land to be included or excluded is, in whole

or in part, within the boundaries of a

municipality, then the county commission

shall not amend the ordinance without

municipal approval. A public hearing shall

be held in the sam e manner and with the same

public notice as other ordinance amendments.

The county commission shall consider the

record of the public hearing and the factors

set forth in s. 190.005(1)(e) in making its

determination to grant or deny the petition

for ordina nce amendment.

(c) For those districts initially

established by municipal ordinance pursuant

to s. 190.005(2)(e), the municipality shall

assume the duties of the county commission

set forth in paragraph (b); however, if any

of the land to be included or e xcluded, in

whole or in part, is outside the boundaries

of the municipality, then the municipality

shall not amend its ordinance without county

commission approval.

(d) 1. For those districts initially

established by administrative rule pursuant

to s. 19 0.005(1), the petition shall be

filed with the Florida Land and Water

Adjudicatory Commission.

2. Prior to filing the petition, the

petitioner shall pay a filing fee of $1,500

to the county and to each municipality the

boundaries of which are contiguous w ith or

contain all or a portion of the land within

the district or the proposed amendment, and

submit a copy of the petition to the county

and to each such municipality. In addition,

if the district is not the petitioner, the

petitioner shall file the pet ition with the

district board of supervisors.

3. The county and each municipality shall

have the option of holding a public hearing

as provided by s. 190.005(1)(c). However,

such public hearing shall be limited to

consideration of the contents of the

pet ition and whether the petition for

amendment should be supported by the county

or municipality.

4. The district board of supervisors shall,

in lieu of a hearing officer, hold the local

public hearing provided for by s.

190.005(1)(d). This local public he aring

shall be noticed in the same manner as

provided in s. 190.005(1)(d). Within 45

days of the conclusion of the hearing, the

district board of supervisors shall transmit

to the Florida Land and Water Adjudicatory

Commission the full record of the local

hearing, the transcript of the hearing, any

resolutions adopted by the local general -

purpose governments, and its recommendation

whether to grant the petition for amendment.

The commission shall then proceed in

accordance with s. 190.005(1)(e).

5. A rule amending a district boundary

shall describe the land to be added or

deleted.

(e) In all cases, written consent of all

the landowners whose land is to be added to

or deleted from the district shall be

required. The filing of the petition for

expansion or contraction by the district

board of supervisors shall constitute

consent of the landowners within the

district other than of landowners whose land

is proposed to be added to or removed from

the district.

(f) 1. During the existence of a district

initia lly established by administrative

rule, petitions to amend the boundaries of

the district pursuant to paragraphs (a) - (e)

shall be limited to a cumulative total of no

more than 10 percent of the land in the

initial district, and in no event shall all

such p etitions to amend the boundaries ever

encompass more than a total of 250 acres.

2. For districts initially established by

county or municipal ordinance, the

limitation provided by this paragraph shall

be a cumulative total of no more than 50

percent of th e land in the initial district,

and in no event shall all such petitions to

amend the boundaries ever encompass more

than a total of 500 acres.

3. Boundary expansions for districts

initially established by county or municipal

ordinance shall follow the pr ocedure set

forth in paragraph (b) or paragraph (c).

(g) Petitions to amend the boundaries of

the district which exceed the amount of land

specified in paragraph (f) shall be

considered petitions to establish a new

district and shall follow all of the

pro cedures specified in s. 190.005.

There is no statutory (or rule) authority for changing the name

of an existing CDD except by merger under Section 190.046(3),

Florida Statutes.

COMPARISON OF INFORMATION IN RECORD TO APPLICABLE LAW

34. Although the Peti tion appeared to request processing

under Section 190.046(1)(a) - (e), Florida Statutes, and

specifically requested that FLAWAC forward the Petition to the

CDD's Board of Supervisors for a local public hearing under

subparagraph (d)4. of that statute, FLAWAC declined the request,

but instead referred the Petition to DOAH for assignment of an

ALJ to conduct a local public hearing under Section

190.005(1)(d), Florida Statutes. Petitioner now concedes that

its Petition to expand the 1,389 - acre Fiddler's Creek C DD by 137

acres and simultaneously contract it by 137 acres exceeds the

limitation in Section 190.046(1)(f) - (g), Florida Statutes, for

petitions to amend the boundaries of a CDD pursuant to

paragraphs (a) - (e) of that statute.

35. Not only does Section 1 90.046(1)(f) - (g), Florida

Statutes, require that the local public hearing on boundary

amendment petitions exceeding the statutory threshold be held

before an ALJ under Section 190.005(1)(d), Florida Statutes, it

also clearly provides that "petitions to ame nd the boundaries of

the district pursuant to paragraphs (a) - (e) shall be limited" to

boundary amendment petitions within the statutory threshold and

that boundary amendment petitions exceeding the threshold "shall

be considered petitions to establish a ne w district and shall

follow all of the procedures specified in s. 190.005."

(Emphasis added.)

36. Notwithstanding the seemingly clear statutory

language, FLAWAC has granted petitions for boundary amendments

exceeding the Section 190.046(1)(f) - (g), Flor ida Statutes,

limits where, as in this case, consent of all landowners of the

proposed amended CDD was not provided, as required under Section

190.005(1)(a)2, Florida Statutes. See In Re: Petition to

Contract the Gateway Services District , DOAH Case No. 0 2 - 1334,

WL (DOAH Report August 9, 2002)(Rule adopted November 12, 2002);

In Re: Petition to Contract Tampa Palms Open Space and

Transportation Community Development District , DOAH Case No. 96 -

4213, 1997 WL 1052656 (DOAH Report January 29, 1997)(Rule

adopte d July 31, 1997). In the Gateway case, the apparent

rationale was that filing of a petition to expand or contract

the boundaries of a CDD constitutes "consent of the landowners

within the district other than of landowners whose land is

proposed to be adde d to or removed from the district," as

provided under Section 190.046(1)(e), Florida Statutes, although

subparagraphs (g) - (f) state that subparagraph (e) does not apply

when the acreage limitations are exceeded. The Tampa Palms case

was decided before the 1999 rule amendment adding that language

to subparagraph (e).

37. Similarly, FLAWAC has granted petitions for boundary

amendments exceeding the Section 190.046(1)(f) - (g), Florida

Statutes, limits where, as in this case, the local government

did not req uire payment of the full $15,000 filing fee under

Section 190.005(1)(b)2, Florida Statutes. See In Re: Petition

to Contract the Circle Square Woods Community Development

District , DOAH Case No. 02 - 1118, 2002 WL 1592404 (DOAH Report

June 24, 2002)(Rule ado pted October 1, 2002)(County waived the

filing fee). In this case, Collier County accepted $1,500 as

payment in full, waiving any additional fee, because of the net

"wash" of expansions and contraction acreage and because that

amount more than paid for Co unty staff work in connection with

this CDD.

38. In its proposed Report, Petitioner also argued the

following justification for limiting the required fee to $1,500

in this case:

Because the District was established

initially by administrative rule by FLAWAC,

pursuant to Section 190.005(1), Florida

Statutes, the District, as the Petitioner,

was required to pay a processing or filing

fee to the Collier County for its staff to

process the amendment petition. The

procedure in Section 190.005(1)(b), requir es

a filing fee to be paid to the county. The

amount of the filing fee for establishment

of a district of [sic] $15,000.00 under this

subsection. However, the filing fee in fact

submitted is $1,500.00 because, though

proceeding under the establishment

pr ocedures, (because it was assessed as

exceeding the threshold for the abbreviated

process), the process is not "establishment"

but rather "amendment", so that the fee paid

was $1,500.00, substantively, under Section

190.046(1)(d)2, Florida Statutes.

Petit ioner also pointed out the County's rationale for not

requiring the full $15,000. See paragraph 19, supra .

39. Except as to written consent and addressing the

impacts on the enclaves, the Petition met the content

requirements of Section 190.005(1)(a), Florida Statutes.

40. Except for payment of a $15,000 filing fee, Petitioner

met the pre - filing requirements of Section 190.005(1)(b),

Florida Statutes.

41. Collier County exercised the option under Section

190.005(1)(c), Florida Statutes, of holding a public hearing to

consider the Petition and resolved to support the Petition.

42. All procedural and notice requirements for local

public hearings under Section 190.005(1)(d), Florida Statutes,

were met.

43. As for factor 1 under Section 190.005(1 )(e), Florida

Statutes, the evidence was that all statements in the Petition

were true and correct, except for the statement: "There is no

real property within the proposed amended boundaries of the

District which is to excluded from the jurisdiction of t he

District." While that is true of the expansion parcel, it is

not true as to the existing CDD. However, those "enclaves" are

"specifically described," and "the last known address of all

owners of such real property" is "listed," i.e. , reflected on

the metes and bounds description. Section 190.005(1)(a)1,

Florida Statutes. While the Petition does not "address the

impact of the proposed district on any real property within the

external boundaries of the district which is to be excluded from

the district ," there does not appear to be any impact on those

properties by the CDD, either existing or as proposed. Id.

44. As for factor 2 under Section 190.005(1)(e), Florida

Statutes, the evidence was that "establishment of the district

is [not] inconsistent wi th any applicable element of the

effective local government comprehensive plan."

45. As for factor 3 under Section 190.005(1)(e), Florida

Statutes, the evidence was that "the area of land within the

proposed district is of sufficient size, is sufficient ly

compact, and is sufficiently contiguous to be developable as one

functional interrelated community."

46. As for factor 4 under Section 190.005(1)(e), Florida

Statutes, the evidence was that "the district is the best

alternative available for deliveri ng community development

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

district."

47. As for factor 5 under Section 190.005(1)(e), Florida

Statutes, the evidence was that "the community development

services and facilities of the distric t will be incompatible

with the capacity and uses of existing local and regional

community development services and facilities."

48. As for factor 6 under Section 190.005(1)(e), Florida

Statutes, the evidence was that "the area that will be served by

th e district is amenable to separate special - district

government."

CONCLUSION

49. Section 190.005(1)(d), Florida Statutes, provides that

the local public hearing "shall be conducted . . . in

conformance with the applicable requirements and procedures of

the Administrative Procedure Act." However, this is not a

quasi - judicial, adversarial proceeding under Sections 120.569

and 120.57, Florida Statutes, for resolution of factual

disputes. Rather, it is a quasi - legislative, information -

gathering hearing tha t is part of the rulemaking process.

Section 120.54(8), Florida Statutes, describes the Rulemaking

Record as including: "(c) A written summary of hearings on the

proposed rule." For these reasons, a recommended order with

findings of fact and conclusio ns of law is not appropriate.

Instead, the ALJ files a report which constitutes the hearing

summary portion of the rulemaking record under Section

120.54(8)(c), Florida Statutes. Section 190.005(1)(e), Florida

Statutes, states that FLAWAC "shall consider the entire record

of the local hearing, the transcript of the hearing, resolutions

adopted by local general - purpose governments," and the factors

listed in that subparagraph.

REPORT SUBMITTED this 25th day of February, 2003, in

Tallahassee, Leon Count y, Florida.

___________________________________

J. LAWRENCE JOHNSTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 25th day of February, 2003.

COPIES FURNISHED :

Donna Arduin, Secretary

Florida Land and Water Adjudicatory Commission

The Capitol, Room 2105

Tallahassee , Florida 32399 - 0001

Barbara Leighty, Clerk

Growth Management and Strategic Planning

The Capitol, Room 2105

Tallahassee, Florida 32399 - 0001

Raquel Rodriguez, Esquire

Office of the Governor

The Capitol, Room 209

Tallahassee, Florida 32399 - 1001

Kenza v an Assenderp, Esquire

Young, van Assenderp, Varnadoe & Anderson, P.A.

225 South Adams Street, Suite 200

Tallahassee, Florida 32301

Patrick White, Esquire

Collier County Attorney's Office

3301 Tamiami Trail East

Naples, Florida 34112 - 4961

Mark J. Woodwa rd, Esquire

Woodward, Pires & Lombardo, P.A.

3200 Tamiami Trail North, Suite 200

Naples, Florida 34103

APPENDIX A

Petitioner’s Witnesses:

Mark J. Woodward

Woodward, Pires & Lombardo, P.A.

3200 Tamiami Trail North, Suite 200

Naples, Florida 34103

Jim Ward

Severn Trent Services

210 North University, Suite 702

Coral Springs, Florida 32817

W. Terry Cole, P.E.

Hole Montes

950 Encore Way

Naples, Florida 34110

Carey Garland

Fishkind & Associates, Inc.

11869 Hi Tech Avenue

Orlando, Florida 32817

Micha el T. Redd, ASLA

Michael Redd & Associates, PA

631 US Highway One, Suite 300 - A

North Palm Beach, Florida 33408

APPENDIX B

Exhibits

Joint Composite Exhibit 1

(Received into record January 23, 2003)

Exhibit A:

General Location Map and the Collier Co unty Comprehensive

Plan Future Land Use Map

Exhibit B:

Petition for Rulemaking to Amend the Boundaries and Amend

the Name of the Fiddler’s Creek Community Development District

Exhibit C:

Miscellaneous Transmittal Documents

a. Xeroxed Copy of the D ocument of Receipt of the $1,500

Check to Constitute Filing and Processing Fee Paid by Petitioner

b. Receipt of Service FLAWAC

c. Receipt of Service Collier County

Exhibit D:

Official signed, dated and certified Collier County

resolution supporting the Petition of the Board of County

Commissioners supporting the Petition to amend the boundaries of

the CDD and changing the name of the existing CDD.

Exhibit E:

Affidavit of Ken van Assenderp executed on January 20,

2003, stating his law firm serves a s Petitioner for the

Fiddler’s Creek Community Development District; and on

October 18, 2002, stating the firm filed a copy of the petition

with the Florida Land and Water Adjudicatory Commission and

submitted a copy to Collier County on October 16, 2002.

Exhibit F:

FLAWAC Secretary Donna Arduin letters

a. Letter of notification from Secretary Arduin and to

General Counsel Roth of Florida Department of Community Affairs

b. Letter of notification from Secretary Arduin to

Executive Director Paltry of t he Southwest Florida Regional

Planning Council

c. Letter of notification from Secretary Arduin to

Director of the Division of Administrative Hearings

Exhibit G:

Miscellaneous documents.

a. Order dated November 12, 2002, signed by Sharyn Smith,

Chief Judge, Division of Administrative Hearings, assigning the

case to an Administrative Judge and summarizing procedures.

b. Compliance Response to Initial Order signed and

submitted to the Florida Land and Water Adjudicatory Commission

on December 9, 2002, by Ken van Assenderp

Exhibit H:

Notice of Hearing

a. Notice of hearing signed on November 27, 2002, by the

ALJ, stating time, date and location of hearing

b. Affidavit of Publication from the “Naples Daily News”

constituting proof of publication f or the first week through

fourth week of notice

Exhibit I:

Official copy of the Collier County Comprehensive Plan

Exhibit J:

Copy of most recent codification of the State Comprehensive

Plan as it appears codified in Chapter 187, Florida Statutes,

(20 01)

Exhibit K:

White Papers

a. White paper of Michael Redd, Planner and land use

expert with vita sheet.

b. Pre - filed testimony of W. Terry Cole, Professional

Engineer and civil engineering expert with vita sheet

Joint Composite Exhibit 2:

Landow ner’s Consent to Contract District9