03-000908 In Re: Petition For Rule Creation - Tomoka Community Development District vs. * Status: Closed Recommended Order on Wednesday, June 18, 2003.

Summary: Petition to establish Tomoka Community Development District in Flagler County. Evidence presented for report to Florida Land and Water Adjudicatory Commission on statutory criteria, all of which appeared to be met.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: PETITION FOR RULE )

CREATION - TOMOKA COMMUNITY )

DEVELOPMENT DISTRICT. ) Case No. 03 - 0908

)

ADMINISTRATIVE LAW JUDGE'S REPORT TO

THE FLORIDA LAND AND WATER ADJUDICATORY COMMISSION

Pursuant to Section 190.005(1)(d), Florida Statutes,

J. Lawrence Johnston, Administrative Law Judge (ALJ) of the

Division of Administrative Hearings (DOAH), conducted a local

public hearing, in Palm Coast, Florida, on May 23, 2003.

APPEARANCES

For Petitioner: Jonathan T. Johnson, Esquire

Roy Van Wyk, Esquire

Hopping Green & Sams, P.A.

123 South Calhoun Street

Post Office Box 6526

Tallahassee, Florida 32314

STATEMENT OF THE ISSUE

At issue in this hearing was the Petition to Establish the

Tomoka Community Development District filed on February 28, 2003

(Petition). The Petition, filed by ICI Homes, Inc., requested

that the Florida Land and Water Adjudicatory Commission (FLWAC)

adopt a rule to estab lish a state - chartered uniform community

development district, to be called the Tomoka Community

Development District, on certain property in Flagler County,

Florida. The hearing was for purposes of gathering information

in anticipation of quasi - legislati ve rulemaking by FLWAC.

PRELIMINARY STATEMENT

On March 13, 2003, FLWAC's Secretary certified that the

Petition contained all required elements and forwarded it to

DOAH for the purpose of holding the public hearing required

under Section 190.005(1)(d), F lorida Statutes.

FLWAC published a Notice of Receipt of Petition in the

Florida Administrative Weekly on May 2, 2003.

The land to be included within the proposed District is

contained wholly within the boundaries of unincorporated Flagler

County. (Pet . Comp. Ex. A, page 1, Att. 1, Att. 2 and Att. 4)

The land within the external boundaries of the proposed District

is neither contained within nor contiguous to the boundaries of

any municipality or other county. (Pet. Comp. Ex. A, Att. 1,

Att. 2 and Att. 4) Section 190.005(1)(c), Florida Statutes,

provides that the county containing all or a portion of the

lands within the proposed District has the option to hold a

public hearing within forty - five (45) days of the filing of the

petition. Flagler County held its optional public hearing on

April 7, 2003, and passed a resolution in support of the

creation of the District. A copy of the Flagler County

Resolution supporting the creation of the District was received

into evidence as Petitioner’s Exhibit I. ( Tr. page 15,

lines 1 - 12)

A local public hearing was duly scheduled, noticed,

advertised, and held in Palm Coast, Flagler County, Florida, on

May 23, 2003. At the hearing, Petitioner presented three

witnesses, whose names and addresses are listed in Append ix A to

this Report, and had Petitioner's Exhibits A - K, described in

Appendix B to this Report, admitted into evidence.

The Transcript of the local public hearing was filed on

June 9, 2003. Petitioner filed a Proposed Report to FLWAC,

which is essentia lly adopted and incorporated into this Report.

References in the report to "Tr." are to the cited page of the

transcript. References in the report to "Pt." are to the cited

page of the pre - filed testimony of the identified witnesses,

which was entered in to the record as though read.

SUMMARY OF THE RECORD

1. The Petitioner is seeking the adoption of a rule by the

Commission to establish a community development district

proposed to consist of approximately 2,100 acres located

entirely within the boundaries of unincorporated Flagler County.

(Pet. Comp. Ex. A, page 1 and Att. 2; Ambach Pt. page 5, lines

27 - 30) Flagler County has jurisdiction over all of the lands

which comprise the proposed Tomoka Community Development

District. (Pet. Comp. Ex. A, page 1 an d Att. 2; Ambach Pt.

page 5, lines 27 - 30) The name for the proposed District is the

Tomoka Community Development District. (Pet. Comp. Ex. A, page

2; Ambach Pt. page 2, lines 8 - 10)

2. There are two parcels of land within the external

boundaries of the proposed District which are to be excluded

from the District. These parcels include a school site and

agricultural land, neither of which is included in the DRI.

(Pet. Comp. Ex. A, page 1 and Att. 2)

3. The estimated cost of the infrastructure facilitie s and

services which are presently expected to be provided to the

lands within the District was included in the Petition. (Pet.

Comp. Ex. A, Att. 9)

Summary of the Evidence and Testimony

A. Whether all statements contained within the Petition have

been fo und to be true and correct .

4. Petitioner's Composite Exhibit A consists of the

Petition and its attachments as filed with the Commission.

Mr. Ambach testified that he had reviewed the contents of the

Petition and approved its findings. (Ambach Pt. pag e 2, lines

30 - 42) Mr. Ambach also generally described certain of the

attachments to the Petition. (Ambach Pt. page 2, line 43,

through page 3, line 32) Finally, Mr. Ambach testified that the

Petition and its attachments were true and correct to the best

of his knowledge. (Tr. page 8, lines 14 – 17; Ambach Pt. page 3,

line 35, through page 5, line 21)

5. Mr. Ambach testified that the Petition and its

attachments, with the exception of the statement of regulatory

costs, were prepared by his office or under his supervision.

(Ambach Pt. page 3, lines 35 - 38; page 32, lines 3 - 8) (Tr.

page 32, lines 12 - 15)

6. Mr. Walters testified that he had prepared exhibit 9 to

the Petition, the Statement of Estimated Regulatory Costs.

Mr. Walters also testified that the Statement of Estimated

Regulatory Costs submitted as Attachment 9 to Petitioner's

Composite Exhibit A was true and correct to the best of his

knowledge. (Walters Pt. page 12, line 40 through page 41,

line 6)

7. The Petition included written consent to es tablish the

District from the owners of one hundred percent (100%) of the

real property located within the lands to be included in the

proposed District. (Pet. Comp. Ex. 1, Att. 4) Mr. Ambach

testified that at the time of the filing of the Petition, the

Petitioner was the sole owner of the property to be included

within the proposed District. He further stated that, since the

filing of the Petition, ICI Homes, Inc., had sold some lots and

that each buyer has executed a Consent and Joinder to become

part of the proposed District. A copy of each Consent and

Joinder was entered into the record as Petitioner's Composite

Exhibit H. (Tr. page 9, line 19 through page 10, line 21) The

Petition and its exhibits are true and correct.

8. The Petition includes th e identity of the five persons

designated to serve as the initial members of the Board of

Supervisors of the Tomoka CDD .

B. Whether the establishment of the District is inconsistent

with any applicable element or portion of the State

Comprehensive Plan o r of the effective local government

comprehensive plan .

9. Mr. Walters reviewed the proposed District in light of

the requirements of the State Comprehensive Plan, Chapter 187,

Florida Statutes (2002). (Walters Pt. page 6, lines 37 - 41)

Mr. Walters al so reviewed the proposed District in light of the

requirements of the Flagler County Comprehensive Plan. (Walters

Pt. page 6, lines 26 - 30) A copy of the State Comprehensive

Plan, Chapter 187 was entered into the record as Petitioner's

Exhibit J. (Tr. pa ge 15, lines 13 - 20)

10. The State Comprehensive Plan "provides long - range

policy guidance for the orderly social, economic and physical

growth of the State" by way of twenty - six subjects, and numerous

goals and policies. (Walters Pt. page 7, lines 6 - 12) From a

planning perspective, two subjects of the State Comprehensive

Plan apply directly to the establishment of the proposed

District as do the policies supporting those subjects. (Walters

Pt. page 7, lines 12 - 14)

11. Subject 15, Land Use, recognizes the importance of

enhancing the quality of life in the state of Florida by

locating development in areas with the fiscal ability and

service capacity to accommodate growth. (Walters Pt. page 7,

lines 19 - 21) The proposed District will have the fiscal abi lity

to provide services and facilities and help provide

infrastructure in a fiscally responsible manner in an area which

can accommodate development within Flagler County. (Walters Pt.

page 7, lines 21 - 25)

12. Policy 1 of Subject 15 promotes efficient development

activities in areas that have the capacity to serve new

populations and growth. "The proposed District will be a

vehicle to provide high quality services in an efficient and

focused manner over the long term." (Walters Pt. page 7,

lines 12 - 14 )

13. Subject 25, Plan Implementation, provides that

systematic planning shall be integrated into all levels of

government, with emphasis on intergovernmental coordination.

(Walters Pt. page 7, lines 36 - 39) The proposed District is

consistent with this element of the State Comprehensive Plan

because the proposed District will operate through a Board of

Supervisors that will systematically plan for the construction,

operation and maintenance of the public improvements and the

community facilities authori zed under Chapter 190, Florida

Statutes (2002), subject to and not inconsistent with the local

government comprehensive plan and land development regulations.

(Walters Pt. page 7, line 39 through page 8, line 1)

Additionally, the District meetings are pu blicly advertised and

are open to the public so that all District property owners and

residents can be involved in planning for improvements.

(Walters Pt. page 8, lines 1 - 2)

14. Policy 2 of Subject 25 seeks to ensure that every

level of government is provided the appropriate level of

authority to implement the policy directives of the plan.

Community Development Districts are provided such authority

under Chapter 190, Florida Statutes (2002), to deliver basic

community services and infrastructure. (W alters Pt. page 8,

lines 6 - 9)

15. Policy 3 of Subject 25 provides that effective

monitoring enforcement and incentive capabilities be provided.

Section 189.415, Florida Statutes (2002), requires the District

to file annual public facilities reports with the County, which

they may rely upon in any revisions to the local comprehensive

plan and to effectively monitor the proposed Tomoka Community

Development District. (Walters Pt. page 8, lines 11 - 15)

16. Policy 6 of Subject 25 encourages public particip ation

at all levels of policy development, planning and operations.

Districts of this size created under Chapter 190, Florida

Statutes, require that after six years and after 250 electors

reside in the District, residents begin to transition onto the

Boar d of Supervisors. This requirement encourages citizen

participation in government at the most basic level. (Walters

Pt. page 8, lines 17 - 21)

17. Based on the testimony and exhibits in the record, the

proposed District will not be inconsistent with any applicable

element or portion of the State Comprehensive Plan. (Walters

Pt. page 7, lines 3 - 4)

18. The Flagler County Comprehensive Plan contains various

elements which are supported by numerous goals and objectives.

Mr. Walters testified that portions of three of these elements

were relevant when determining whether or not the proposed

District was inconsistent with the local comprehensive plan.

(Walters Pt. page 9, lines 4 - 6)

19. Within the Future Land Use Element are Goals and

Objectives which are targeted to "achieve orderly, harmonious,

and judicious use of land" by effectively distributing

compatible land uses to foster new and existing communities, and

by maintaining the agricultural and natural environments of the

county. The proposed Distric t is within the County's Planned

Urban Area and is consistent with this plan element. The

development within the proposed District is part of a Chapter

380, Florida Statutes, development order (an order granting the

development permit), which is vested on the County Land Use

Plan. The proposed District is a recognized vehicle to provide

the necessary services and facilities to the lands within the

boundaries of the proposed District consistent with the Flagler

County Comprehensive Plan's objective of coor dinating Land Uses

with Urban Services Delivery. (Walters Pt. page 9, lines 8 - 14)

20. The goal of the Intergovernmental Coordination Element

is to achieve consistency among governmental units by

coordinating policies and plans "to improve the delivery of

services, enhance the quality of life, and protect the natural

environment." The proposed District will assist in the

coordination process by providing and maintaining community

infrastructure in a way that is not inconsistent with the plans

and activi ties of related public and private agencies. (Walters

Pt. page 9, lines 16 - 21)

21. The Capital Improvements Element is intended to

provide all the residents of Flagler County with the necessary

infrastructure within the County's adopted level of service

standards. The proposed District will expand the areas within

Flagler County that receive infrastructure, in a manner

consistent with the Development Order, without any detrimental

impact to existing levels of service. (Walters Pt. page 9,

lines 13 - 27)

22. Chapter 190, Florida Statutes (2002), prohibits the

proposed District from acting in any way inconsistent with the

Flagler County Comprehensive Plan. (Walters Pt. page 9, lines

17 - 21) The exercise of District powers does not make it

inconsistent wi th the Flagler County Comprehensive Plan.

(Walters Pt. page 9, lines 29 - 34)

23. The Florida Department of Community Affairs ("DCA")

was notified of the Petition and reviewed it for compliance with

its various programs and responsibilities. A copy of t he notice

to DCA was entered into the record as Petitioner's Exhibit D.

(Tr. page 8, lines 6 - 19; Ambach Pt. page 7, lines 13 - 14) After

conducting a review of the Petition for consistency with the

approved development order and the approved comprehensive plan,

DCA requested additional information regarding the DRI (as

hereinafter defined) which was provided to them. (Ambach Pt.

page 7, lines 14 - 16) A copy of Petitioner's response letter was

entered into the record as Petitioner's Exhibit E. (Tr. page 8,

lines 6 - 19) No further communication was received from DCA at

the time of the hearing.

24. Based on the evidence in the record, the proposed

District will not be inconsistent with any applicable element or

portion of the Local Comprehensive Plan, and will in fact

further the goals provided.

C. 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 .

25 . Testimony o n these factors was provided Mr. Ambach and

Mr. Walters. The proposed District will include approximately

2,100 acres, located entirely within the boundary of

unincorporated Flagler County, Florida. (Pet. Comp. Ex. A,

page 1)

26. All of the land in the proposed District is part of a

planned community included in the Plantation Bay Development of

Regional Impact ("DRI"). (Ambach Pt. page 7, lines 4 - 8)

27. The term "functional interrelated" essentially means

that from a planning perspective all the gov ernmental functions

provided to a community are integrated into a long - range plan to

evaluate the future needs of the community. (Walters Pt.

page 10, lines 13 - 14) Each function requires a management

capability, funding source, and an understanding of th e size of

the community's needs so as to handle the growth and development

of the community. (Walters Pt. page 10, lines 14 - 16)

Functional interrelation means that each community purpose has a

mutual reinforcing relationship to one another. Each functio n

must be designed to contribute to the development or the

maintenance of the community. (Walters Pt. page 10,

lines 16 - 19)

28. The size of the District as proposed is approximately

2,100 acres. (Pet. Comp. Ex. A, page 1 and Att. 2; Ambach Pt.

page 5 , lines 29 - 30) From a planning perspective, this is a

sufficient size to accommodate the basic infrastructure

facilities and services typical of a functionally interrelated

community. The proposed facilities can be provided in an

efficient, functional an d integrated manner. (Walters Pt. page

10, lines 25 - 30)

29. Compactness relates to the location in distance

between the lands and land uses within a community. The

community is sufficiently compact to be developed as a

functionally interrelated communi ty. The compact configuration

of the lands will allow the District to deliver the proposed

construction and perpetual maintenance of any District

improvements or facilities in a long - term, cost - efficient

manner. (Walters Pt. page 10, lines 35 - 39)

30. P etitioner is developing all of the lands within the

District as a single, master - planned community. All of these

lands are governed by the Plantation Bay Development of Regional

Impact Development Approval issued by Flagler and Volusia

Counties. Only lan ds in Flagler County are within the proposed

Tomoka Community Development District. (Ambach Pt. page 7,

lines 4 - 8)

31. From planning, economic, and management perspectives,

the area of land to be included in the proposed District is of

sufficient size, is sufficiently compact, and is sufficiently

contiguous to be developed as a single functionally interrelated

community. (Walters Pt. page 10, lines 2 - 4)

D. Whether the proposed District is the best alternative

available for delivering community developm ent services and

facilities to the area that will be served by the proposed

District .

32. It is presently intended that the District will

construct or provide certain infrastructure improvements as

outlined in the petition. (Pet. Comp. Ex. A, page 3, A tt. 8 and

Att. 9)

33. Installation and maintenance of infrastructure systems

and services by the proposed District are expected to be paid

through the sale of tax - exempt bonds. (Ambach Pt. page 8, lines

32 - 33) The debt will be retired by "non - ad valore m" or "special

assessments" imposed on benefited property within the proposed

District. (Ambach Pt. page 8, lines 33 - 35; Walters Pt. page 15,

lines 41 - 44) Maintenance and operational activities are

expected to be funded by maintenance assessments. (Amba ch Pt.

page 8, lines 35 - 36; Walters Pt. page 15, line 44 through

page 16, line 2)

34. Two alternatives to the use of the District were

identified. First, Flagler County might provide facilities and

services from its general fund thus allocating costs to all

residents not just those benefited. (Walters Pt. page 16,

lines 4 - 15) Second, facilities and services might be provided

by some private means, with maintenance delegated to a property

owners' association (POA) or a home owners' association (HOA),

neither of which has the statutory powers of a Community

Development District. (Walters Pt. page 16, lines 17 - 23)

35. From an economic perspective, the District is

preferable to these alternatives because it provides lower costs

to landowners, homeowner s, and county residents at large.

(Walters Pt. page 16 lines 27 - 29)

36. The District will construct certain infrastructure and

community facilities which will be needed by the property owners

and residents of the project. (Ambach Pt. page 8, lines 4 - 8)

The proposed District would be more effective than a typical POA

or HOA attempting to work with a general purpose government.

Neither entity has the ability to finance the infrastructure

contemplated here as a community development district does.

(Amba ch Pt. page 10, lines 3 - 7) A community development

district has the ability to efficiently and effectively manage

the financing, construction, and acquisition of this public

infrastructure. (Ambach Pt. page 9, line 41 through page 10,

line 7)

37. Only a community development district allows for the

long - term, stable, perpetual entity capable of funding,

constructing, and in some cases maintaining the facilities over

their lifetime. (Ambach Pt. page 10, lines 7 - 9)

38. From planning, economic, and sp ecial district

management perspectives, the proposed District is the best

alternative available for delivering community development

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

District. (Ambach Pt. page 9, lines 36 - 37; Walters Pt. page 15,

lines 32 - 35)

E. Whether the community development services and facilities

of the proposed District will be incompatible with the

capacity and uses of existing local and regional community

development services and facilities .

39. The services and fa cilities proposed to be provided by

the District are not incompatible with the capacity and uses of

existing local and regional community development facilities and

services. The District's facilities and services provide a

logical, efficient extension of existing systems into targeted

development areas. (Walters Pt. page 11, lines 8 - 11)

40. There is no duplication of the proposed District's

anticipated improvements and services contemplated by the

proposed District under the Petition. (Walters Pt. page 11,

lines 15 - 17)

F. Whether the area that will be served by the District is

amenable to separate special - district government .

41. As cited previously, from planning, economic, and

special district management perspectives, the area of land to be

includ ed in the proposed District is of sufficient size, is

sufficiently compact, and is sufficiently contiguous to be

developed and become a functionally interrelated community.

Following an evaluation of the area to be located within the

proposed District, it was determined that the proposed community

does warrant a separate special district government to oversee

the installation of these improvements. (Walters Pt. page 11,

lines 28 - 36)

42. From planning, engineering, economic and management

perspectives, t he area that will be served by the District is

amenable to separate special - district government.

G. Other requirements imposed by statute or rule .

43. FLWAC has certified that the Petition to Establish the

Tomoka Community Development District meets al l of the

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

Ex. B)

44. The Petition contains a Statement of Estimated

Regulatory Costs ("SERC"). (Pet. Comp. Ex. A, Att. 9) The SERC

in the Petition contains an estimate of the costs and be nefits

to all persons directly affected by the proposed rule to

establish the District. These include the State of Florida and

its citizens, the county and its citizens, the Petitioner, and

other consumers. (Pet. Comp. Ex. A, Att. 9)

45. Beyond administ rative costs related to rule adoption,

the State and its citizens will only incur minimal costs from

establishing the District. These costs are related to the

incremental costs to various agencies of reviewing one

additional local government report. The proposed District will

require no subsidies from the State. (Pet. Comp. Ex. A, Att. 9,

page 3) Benefits will include improved planning and

coordination of development, which is difficult to quantify but

nonetheless significant.

46. Administrative cost s incurred by the County related to

rule adoption will be modest. These modest costs are offset by

the $15,000 filing fee required to accompany the Petition to

Flagler County. (Pet. Comp. Ex. A, Att. 9, pages 3 and 4)

47. Future landowners in the Distr ict will pay non - ad

valorem or special assessments for certain facilities.

Generally, District financing will be less expensive than

maintenance through a POA or capital improvements financed

through developer loans. Benefits to consumers in the area

wit hin the community development district will include a higher

level of public services and amenities than might otherwise be

available, completion of District - sponsored improvements to the

area on a timely basis, and a larger share of direct control

over co mmunity development services and facilities within the

area. (Pet. Comp. Ex. A, Att. 9, page 5)

Other Requirements

48. Flagler County was provided three copies of the

Petition and was paid the requisite filing fee. (Ambach Pt.

page 5, lines 35 - 39)

49. Petitioner published notice of the local public

hearing in a newspaper of general paid circulation in Flagler

County ( Daytona Beach News - Journal ) for four consecutive weeks,

on April 25, 2003, May 2, 2003, May 9, 2003, and May 16, 2003.

(Pet. Ex. G; Tr. page 15, line 22 through page 16, line 21)

APPLICABLE LAW

A. General

50. Under Section 190.003(6), Florida Statutes, a

"community development district" is a local unit of special -

purpose government which is created pursuant to this act and

limited to th e performance of those specialized functions

authorized by this act; the boundaries of which are contained

wholly within a single county; the governing head of which is a

body created, organized, and constituted and authorized to

function specifically as p rescribed in this act for the delivery

of urban community development services; and the formation,

powers, governing body, operation, duration, accountability,

requirements for disclosure, and termination of which are as

required by general law.

51. Secti on 190.011, Florida Statutes, enumerates the

general powers of CDDs. These general powers are to enable the

District to exercise its single specialized narrow growth

management purpose. State v. Frontier Acres Community

Development District , 472 So. 2d 4 55 (Fla. 1985) . They include

the powers to organize itself, to hire contract with

consultants, to have a seal, to sue and be sued, and related

governmental powers.

52. Section 190.012, Florida Statutes, lists special

powers of CDDs. Subject to the reg ulatory power of all

applicable government agencies, CDDs may plan, finance, acquire,

construct, enlarge, operate, and maintain systems and facilities

for water management; water supply, sewer, and wastewater

management; district roads meeting minimum coun ty

specifications; and certain projects within or without the

district pursuant to development orders from local governments.

After obtaining the consent of the applicable local general

purpose government, a CDD may have the same powers with respect

to us ing the following "optional" systems, facilities, and

services already granted to the District by its general law

charter: parks and recreation, fire prevention, school

buildings, security, mosquito control, and waste collection and

disposal.

53. Section 190.005(1), Florida Statutes, provides that

the sole means for establishing a community development district

of 1,000 acres or more shall be by rule adopted by FLWAC

granting a petition for the establishment of a CDD. (Section

190.005(2), Florida Statute s, provides that, for CDDs on

proposed property of less than 1,000 acres, the county in which

the proposed CDD is to be situated may establish a CDD under the

same requirements discussed below.)

54. Section 190.005(1)(a), Florida Statutes, requires that

t he petition be filed with FLWAC and submitted to the County.

The petition must describe by metes and bounds the area to be

serviced by the CDD with a specific description of real property

to be excluded from the district. The petition must set forth

that the petitioner has the written consent of the owners of all

of the real property proposed to be in the CDD, or has control

by "deed, trust agreement, contract or option" of all of the

real property. The petition must designate the five initial

members of the board of supervisors of the CDD and the

district's name. The petition must contain a map showing

current major trunk water mains and sewer interceptors and

outfalls, if any.

55. Section 190.005(1)(a), Florida Statutes, also requires

that the petitio n propose a timetable for construction and an

estimate of construction costs. The petition must designate

future general distribution, location, and extent of public and

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

appropriate general purpos e local government. The petition must

contain a Statement of Estimated Regulatory Costs meeting the

requirements of Section 120.541, Florida Statutes.

56. Section 190.005(1)(b), Florida Statutes, requires that

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

each municipality whose proposed boundaries are within or

contiguous to the CDD. The petitioner also must serve a copy of

the petition on those local, general - purpose governments.

57. Section 190.005(1)(c), Florida Statutes, permits the

county and each municipality described in the preceding

paragraph to conduct a public hearing on the petition. Such

local, general - purpose governments may then present resolutions

to FLWAC as to the establishment of a CDD on the property

proposed in the Petition.

58. Section 190.005(1)(d), Florida Statutes, requires an

ALJ to conduct a local public hearing pursuant to Chapter 120,

Florida Statutes. The hearing "shall include oral and written

comments on the petition pertinent to the factors specifie d in

paragraph (e)." Section 190.005(1)(d), Florida Statutes,

specifies that the petitioner publish notice of the local public

hearing once a week for the four successive weeks immediately

prior to the hearing.

B. Factors by Law to be Considered for Grant ing or

Denying Petition

59. Section 190.005(1)(e), Florida Statutes, provides that

FLWAC consider the entire record of the local hearing, the

transcript of the hearing, resolutions 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 contained within

the petition have been found to be true and

correct.

2. Whether the establishment of the

district is inconsistent with any applicable

element of the effective local government

comprehensive plan.

3. Whether the area of land within the

district is of sufficient size, is

sufficiently compact, and is sufficiently

contiguou s to be developable as one

functional interrelated community.

4. Whether the district is the best

alternative available for delivering

community development services and

facilities to the area that will be served

by the district.

5. Whether the commu nity 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.

COMPARISON OF INFORMATION IN THE RECORD TO APPLICABLE LAW

A. Procedural Requirements

60. The evidence was that Petitioner satisfied the

procedural requirements for the establishment of a CDD on the

proposed proper ty by paying the $15,000 filing fee, filing a

Petition in the proper form and with the required attachments,

and publishing statutory notice of the local public hearing.

B. Six Factors of Section 190.005(1)(e), Florida Statutes

61. The evidence was that t he statements in the Petition

and its attachments are true and correct.

62. The evidence was that establishment by rule of the

District on the proposed property in the Petition is not

inconsistent with the State and Flagler County Comprehensive

Plans. (U sually, through efficient provision of certain

infrastructure, typically concurrent with the impacts of

development, a properly - established CDD serves several

provisions of comprehensive plans.)

63. The evidence was that the size, compactness, and

conti guity of the proposed land area are sufficient for it to be

developable as one functional interrelated community.

64. The evidence was that the CDD is the best alternative

presently available for delivering community development

systems, facilities, and s ervices to the proposed land area.

65. The evidence was that the services and facilities

provided by the CDD will be compatible with the capacity and

uses of existing local and regional community development

services and facilities.

66. The evidence wa s that the proposed area to be served

by the state - chartered CDD is amenable to separate special -

district government.

CONCLUSION

Based on the record evidence, the Petition meets all

statutory requirements, and there appears to be no reason not to

grant the Petition and establish the proposed Tomoka Community

Development District by rule. For purposes of drafting such a

rule, Petitioner's proposed rule, with a metes and bounds

description of the proposed Tomoka CDD, is included in Appendix

C attached to thi s Report, along with a proposed rule listing

the names of the five persons designated in the Petition to

serve as the initial members of the Board of Supervisors of the

Tomoka CDD (which was omitted from Petitioner's proposal) .

DONE AND ENTERED this 18t h day of June, 2003, in

Tallahassee, Leon County, Florida.

S

___________________________________

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 18th day of June, 2003.

COPIES FURNISHED :

Donna Arduin, Secretary

Florida Land and Water Adjudicatory Co mmission

The Capitol, Room 2105

Tallahassee, Florida 32399 - 0001

Barbara Leighty, Clerk

Growth Management and Strategic Planning

The Capitol, Room 2105

Tallahassee, Florida 32399 - 0001

Jonathan T. Johnson, Esquire

Roy Van Wyk, Esquire

Hopping Green & Sa ms, P.A.

123 South Calhoun Street

Post Office Box 6526

Tallahassee, Florida 32314

Heidi Hughes, Esquire

Office of the Governor

The Capitol, Suite 209

Tallahassee, Florida 32399 - 1001

David L. Jordan, Acting General Counsel

Department of Community Affai rs

2555 Shumard Oak Boulevard, Room 325

Tallahassee, Florida 32399 - 2100

APPENDIX A

WITNESSES

Mark S. Ambach

100 Plantation Bay Drive

Ormond Beach, Florida 32174

Gary R. Walters

12 Crooked Tree Trail

Ormond Beach, Florida 32174

William E. Schaefer

4 417 Beach Boulevard

Jacksonville, Florida 32207

APPENDIX B

PETITIONER’S LIST OF EXHIBITS

Composite Exhibit A:

Copy of the original petition filed with the Florida

Land and Water Adjudicatory Commission (FLAWAC). Inclusive of

attachments 1 - 9.

Exhibit B: Correspondence from the Secretary of FLAWAC stating

that the Petition was complete and transmitting it to DOAH for a

hearing.

Exhibit C: Copy of notice of receipt of the Petition and notice

of local public hearing published in the Florida Administrative

Weekly May 2, 2003.

Exhibit D: Correspondence from the Secretary of FLAWAC

transmitting a copy of the Petition to the Department of

Community Affairs (DCA).

Exhibit E: Copy of response letter from Petitioner to DCA

regarding additional information on the Petition.

Exhibit F: Copy of correspondence from St. Johns River Water

Management District to Petitioner's Counsel regarding the

preference of CDD's over HOA for the operation and maintenance

of a stormwater system.

Exhibit G: Proof of publication of notice of hearing in the

Daytona Beach News - Journal.

Revised Exhibit G:

Revised proof of publication of notice of hearing in

the Daytona Beach News - Journal indicating publication in both

Volusia and Flagler Counties.

Composite Exhib it H:

Consent and Joinder of additional land owners to

inclusion of property into the Proposed Tomoka Community

Development District (CDD).

Exhibit I: Copy of Resolution 2003 - 58 of the Board of County

Commissioners of Flagler County supporting the es tablishment of

the Tomoka CDD.

Exhibit J: Certified copy of Chapter 187, Florida Statutes

(2002), State Comprehensive Plan.

Exhibit K: Resume of William Earnest Schaefer, P.E.

3 0

APPENDIX C

Text of Proposed Rule

Chapter 42 ____ - 1

TOMOKA COMMUNI TY DEVELOPMENT DISTRICT

42 ___ - 1.001 Establishment.

42 ___ - 1.002 Boundary.

42 ___ - 1.003 Supervisors.

42 ___ - 1.001 Creation. The Tomoka Community Development

District is hereby established.

42 ___ - 1.002 Boundary. The boundaries of the Dis trict are

as follows:

A portion of sections, 3, 4, 5, 8, 9, 10, 15, 16, 21, and 22,

Township 13 south, range 31 east, Flagler County, Florida, and a

portion of Bunnell Development Company Subdivision, as recorded

in plat book 1, page 1, of the Public Reco rds of Flagler County,

Florida, and a portion of sections 14, 22 and 23, Township 13

south, range 31 east, Volusia County, Florida, described as

follows:

From the southwest corner of said section 3, run north 01

degrees 46 minutes 36 seconds west along th e west line of said

section 3 a distance of 451.12 feet to the point of beginning;

thence continue north 01 degrees 46 minutes 36 seconds west

along said link a distance of 535.72 feet; thence departing said

line, run north 87 degrees 27 minutes 53 seconds east a distance

of 150.00 feet; thence north 01 degree 46 minutes 33 seconds

west a distance of 1287.05 feet to the southerly right of way

line of Old Dixie Highway, a 66 foot right of way; thence north

89 degrees 28 minutes 05 seconds east along said rig ht of way

line a distance of 1181.54 feet; thence departing said right of

way line, run south 01 degree 48 minutes 15 seconds east along

the east line of lot 4, block C, section 3, said Bunnell

Development Company subdivision a distance of 1287.00 feet;

th ence north 89 degrees 28 minutes 22 seconds east along the

north line of lot 10, block C, section 3, said Bunnell

Development Company subdivision a distance of 110.00 feet;

thence departing said line, run south 01 degree 48 minutes 15

seconds east along th e easterly line of a 110 foot Florida Power

& Light Company easement as recorded in deed book 116, page 128,

of the Public Records of Flagler County, Florida, and the

boundary of Plantation Bay phase I A, as recorded in plat book

29, pages 40 - 48, of the Pu blic Records of Flagler County,

Florida, a distance of 782.92 feet; thence departing said line,

run south 89 degrees 35 minutes 22 seconds west a distance of

236.07 feet; thence north 01 degree 48 minutes 15 seconds west a

distance of 399.99 feet; thence s outh 82 degrees 12 minutes 14

seconds west a distance of 1212.70 feet to the point of

beginning.

Together with the following:

From the southwest corner of said section 3, as the point of

beginning, run south 02 degrees 08 minutes 04 seconds east along

th e east line of said section 9 a distance of 473.67 feet;

thence departing said link, run south 62 degrees 28 minutes 42

seconds west a distance of 334.23 feet to a point on the arc of

a curve, concave westerly, having a radius of 1380.00 feet,

central angl e of 40 degrees 46 minutes 36 seconds, and a chord

bearing of south 06 degrees 49 minutes 43 seconds west; thence

run southerly along the arc of said curve a distance of 982.13

feet; thence south 27 degrees 13 minutes 01 seconds west a

distance of 704.67 f eet to the p.c. of a curve, concave

easterly, having a radius of 571.65 feet and a central angle of

34 degrees 23 minutes 14 seconds; thence run southerly along the

arc of said curve a distance of 343.09 feet to the p.r.c. of a

curve, concave northwest, ha ving a radius of 658.75 feet and a

central angle of 32 degrees 59 minutes 14 seconds; thence run

southerly along the arc of said curve a distance of 379.27 feet;

thence south 25 degrees 49 minutes 00 seconds west a distance of

502.83 feet to the p.c. of a curve, concave southeast, having a

radius of 670.00 feet and a central angle of 39 degrees 19

minutes 27 seconds; thence run southerly along the arc of said

curve a distance of 459.84 feet; thence south 33 degrees 30

minutes 26 seconds east a distance of 1 80.63 feet to the p.c. of

a curve, concave northeast, having a radius of 25.00 feet and a

central angle of 88 degrees 29 minutes 15 seconds; thence run

easterly along the arc of said curve a distance of 38.61 feet to

the p.r.c. of a curve, concave southwes t, having a radius of

2058.75 feet, central angle of 33 degrees 31 minutes 32 seconds,

and a chord bearing of south 85 degrees 13 minutes 55 seconds

east; thence run easterly along the arc of said curve a distance

of 1204.64 feet; thence south 02 degrees 0 8 minutes 04 seconds

east along the east line of said section 9 a distance of 1175.28

feet to the southeast corner thereof; thence south 02 degrees 02

minutes 03 seconds east along the east link of said section 16 a

distance of 3104.20 feet; thence departi ng said link, run north

87 degrees 57 minutes 57 seconds east a distance of 860.71 feet

to a point to be reference as point "A"; thence south 13 degrees

56 minutes 20 seconds west a distance of 973.88 feet to the p.c.

of a curve, concave easterly, having a radius of 2550.00 feet

and a central angle of 31 degrees 08 minutes 05 seconds; thence

run southerly along the arc of said curve a distance of 1385.68

feet; thence south 17 degrees 11 minutes 45 seconds east a

distance of 731.09 feet to the p.c. of a curv e, concave

northwest, having a radius of 625.00 feet and a central angle

of 61 degrees 22 minutes 11 seconds; thence run westerly along

the arc of said curve a distance of 669.44 feet; thence south 44

degrees 10 minutes 26 seconds west a distance of 234.5 3 feet to

the p.c. of a curve, concave northerly, having a radius of 25.00

feet, central angle of 90 degrees 16 minutes 05 seconds, and a

chord bearing of south 89 degrees 33 minutes 29 seconds west;

thence run northerly along the arc of said curve a dista nce

39.61 feet to the p.c.c. of a curve, concave northeast, having a

radius of 5619.59 feet, central angle of 03 degrees 58 minutes

40 seconds, and a chord bearing of north 43 degrees 04 minutes

09 seconds west; said point being on the easterly right of wa y

line of U.S. Highway No. 1, a 160 foot right of way; thence

northerly along said right of way line and the arc of said curve

a distance of 390.13 feet; thence north 48 degrees 55 minutes 11

seconds east a distance of 35.00 feet to a point on the arc of a

curve, concave northeast, having a radius of 5584.59 feet,

central angle of 1 degree 40 minutes 40 seconds, a chord bearing

of north 40 degrees 14 minutes 29 seconds west; thence run

northerly along the arc of said curve a distance of 163.53 feet;

thence north 39 degrees 24 minutes 09 seconds west a distance of

276.47 feet; thence south 50 degrees 35 minutes 51 seconds west

a distance of 35.00 feet; thence north 39 degrees 24 minutes 09

seconds west a distance of 7995.87 feet; thence departing said

right o f way line, run north 89 degrees 11 minutes 58 seconds

east along the south line of lots 8 and 9, block C, section 9,

said Bunnell Development Company subdivision, a distance of

999.49 feet; thence north 02 degrees 00 minutes 32.5 seconds

west along the ea st line of lot 9, block C, said section 9 a

distance of 1320.83 feet; thence north 89 degrees 12 minutes 05

seconds east along the north line of lots 10 and 12, block C,

said section 9 a distance of 1325.60 feet; thence north 02

degrees 04 minutes 45 secon ds west along the west line of lots 5

and 6, block D, said section 9 a distance of 1320.83 feet;

thence south 89 degrees 12 minutes 11 seconds west along the

south line of lots 10 and 11, block B, said section 9 a distance

of 1323.99 feet; thence south 02 degrees 00 minutes 32.5 seconds

east along the east line of lot 4, block C, said section 9 a

distance of 1320.83 feet; thence south 89 degrees 12 minutes 05

seconds west along the south link of lot 4, block C, said

section 9 a distance of 662.80 feet; then ce north 01 degree 58

minutes 26 seconds west along the west line of lot 4, block C,

and lot 9, block D, said section 9 a distance of 1781.25 feet;

thence south 89 degrees 12 minutes 14 seconds west along the

south line of lot 7, block B, said section 9, a nd the south line

of lot 12, block A, said section 8 and the westerly extension

thereof, a distance of 1396.16 feet; thence north 07 degrees 21

minutes 09.5 seconds west a distance of 442.07 feet; thence

south 72 degrees 34 minutes 37 seconds west a distan ce of 267.61

feet to the easterly right of way line of said U.S. Highway No.

1; thence north 17 degrees 23 minutes 09 seconds west along said

right of way line a distance of 311.39 feet; thence departing

said line, run north 89 degrees 14 minutes 31 second s east along

the northerly line of lot 12, block A, said section 8, and the

westerly extension thereof a distance of 310.90 feet; thence

north 17 degrees 18 minutes 16 seconds west a distance of 690.36

feet; thence north 01 degree 07 minutes 55 seconds wes t a

distance of 235.10 feet; thence south 89 degrees 19 minutes 05

seconds west a distance of 280.00 feet; thence north 01 degree

07 minutes 55 seconds west a distance of 425.00 feet to the

north line of said section 8; thence south 89 degrees 19 minutes

0 5 seconds west along said north line a distance of 152.45 feet;

thence north 01 degree 02 minutes 20 seconds west along the west

line of lots 3 and 10, block D, said section 5, a distance of

2338.83 feet; thence north 89 degrees 18 minutes 57 seconds east

along the north line of lots 2 and 3, block D, said section 5 a

distance of 1328.19 feet; thence north 89 degrees 33 minutes 19

seconds east along the north line of lot 5, block C, said

section 4 a distance of 668.21 feet; thence south 02 degrees 54

minute s 51 seconds east along the east line of lot 5, block C,

said section 4 a distance of 660.00 feet; thence south 89

degrees 33 minutes 49 seconds west along the south line of lot

5, block C, said section 4 a distance of 666.05 feet; thence

south 03 degrees 06 minutes 06 seconds east along the east line

of lots 1, 11 and 12, block D, said section 5, being the east

line of said section 5, a distance of 1680.93 feet; thence north

89 degrees 09 minutes 34 seconds east along the north line of

lots 4 and 5, block B, said section 9, being the north line of

said section 9, a distance of 1320.73 feet; thence north 02

degrees 43 minutes 34 seconds west along the west line of lot

10, block C, said section 4, a distance of 1011.14 feet; thence

north 89 degrees 33 minutes 56 seconds east along the north line

of lots 10 and 12, block C, and lots 7 and 9, block D, said

section 4 a distance of 2657.49 feet; thence south 02 degrees 04

minutes 00 seconds east along the east line of lot 9, block D,

said section 4 a distance of 9 94.19 feet; thence north 89

degrees 15 minutes 13 seconds east along the north line of lots

2 and 3, block A, said section 9, being the north line of said

section 9, a distance of 1324.71 feet to the point of beginning.

Together with the following:

From previously reference point "A", run south 84 degrees 30

minutes 42 seconds east a distance of 101.10 feet to the point

of beginning; thence north 87 degrees 57 minutes 57 seconds east

a distance of 2815.27 feet to a point on the boundary of Eagle

Rock Ranc h subdivision, as recorded in map book 26, pages 51 and

52, of the Public Records of Flagler County, Florida; thence

south 40 degrees 11 minutes 55 seconds west along said boundary

a distance of 640.75 feet; thence south 88 degrees 27 minutes 37

seconds we st along said boundary a distance of 45.18 feet;

thence south 40 degrees 11 minutes 55 seconds west along said

boundary a distance of 2189.93 feet; thence south 49 degrees 47

minutes 54 seconds east along said boundary a distance of

1171.20 feet; thence so uth 40 degrees 14 minutes 04 seconds west

along said boundary a distance of 2222.60 feet to the easterly

right of way line of U.S. Highway No. 1; thence along said right

of way line, run north 49 degrees 47 minutes 21 seconds west a

distance of 637.20 feet to the p.c. of a curve, concave

northeast, having a radius of 5619.59 feet and a central angle

of 3 degrees 11 minutes 42 seconds; thence run northerly along

the arc of said curve a distance of 373.37 feet to the p.c.c. of

a curve, concave southeast, havi ng a radius of 25.00 feet and a

central angle of 90 degrees 46 minutes 05 seconds; thence

departing said right of way line, run easterly along the arc of

said curve a distance of 39.61 feet; thence north 44 degrees 10

minutes 26 seconds east a distance of 234.53 feet to the p.c. of

a curve, concave northwest, having a radius of 725.00 feet and a

central angle of 61 degrees 22 minutes 11 seconds; thence run

northerly along the arc of said curve a distance of 776.55 feet;

thence north 17 degrees 11 minutes 45 seconds west a distance of

731.09 feet to the p.c. of a curve, concave southeast, having a

radius of 2450.00 feet and a central angle of 31 degrees 08

minutes 05 seconds; thence run northerly along the arc of said

curve a distance of 1331.34 feet; thence north 13 degrees 56

minutes 20 seconds east a distance of 163.86 feet to the point

of beginning.

Together with the following:

From the southeast corner of said section 22, run south 89

degrees 26 minutes 56 seconds west along the south line of said

secti on 22 a distance of 757.21 feet to the easterly right of

way line of U.S. Highway No. 1, a 160 foot right of way, thence

north 49 degrees 48 minutes 44 seconds west along said right of

way line a distance of 509.05 feet to the point of beginning;

thence co ntinue along said right of way line north 49 degrees 46

minutes 07 seconds west a distance of 100.10 feet; thence

departing said right of way line, run north 42 degrees 47

minutes 46 seconds east, parallel with the southerly line of

Eagle Rock Ranch subdiv ision, as recorded in map book 26, pages

51 & 52 of the Public Records of Flagler County, Florida, a

distance of 2222.97 feet; thence north 49 degrees 46 minutes 12

seconds west a distance of 428.53 feet; thence north 40 degrees

11 minutes 55 seconds east a distance of 5473.32 feet to the

westerly right of way line of Interstate No. 95, a 300 foot

right of way; thence south 20 degrees 43 minutes 11 seconds east

along said right of way line a distance of 5003.89 feet to the

east line of said section 23; then ce south 01 degree 50 minutes

39 seconds east along said east line a distance of 1773.40 feet

to the southeast corner of said section 23; thence south 89

degrees 46 minutes 01 seconds west along the south line of said

section 23 a distance of 2661.49 feet; thence departing said

line, run north 49 degrees 46 minutes 12 seconds west a distance

of 3006.16 feet; thence south 42 degrees 47 minutes 46 seconds

west a distance of 2222.97 feet to the point of beginning.

Excepting therefrom the plat of Plantation Ba y School site, as

recorded in plat book 29, page 49 of the Public Records of

Flagler County, Florida.

And excepting the following:

A portion of section 9 and 16, Township 13 south, range 31 east,

Flagler County, Florida, described as follows; from the

no rtheast corner of said section 16, run south 89 degrees 11

minutes 50 seconds west along the north line of said section 16,

a distance of 4981.16 feet to the east right of way line of U.S.

1, a 160 foot right of way; thence south 39 degrees 24 minutes

09 s econds east, along said right of way line a distance of

1525.00 feet to and the p.c. of a curve, concave northerly,

having a radius of 25.00 feet and a central angle of 90 degrees

00 minutes 00 seconds; thence departing said right of way line,

run easterly along the arc of said curve a distance of 39.27

feet; thence north 50 degrees 35 minutes 51 seconds east a

distance of 353.91 feet to the p.c. of a curve, concave

southeast, having a radius of 425.24 feet, central angle of 37

degrees 57 minutes 36 seconds , and a chord bearing of north 69

degrees 34 minutes 39 second east; thence run easterly along the

arc of said curve a distance of 281.73 feet to the P.R.C. of a

curve, concave northerly, having a radius of 390.67 feet and a

central angle of 54 degrees 14 minutes 32 seconds; thence run

easterly along the arc of said curve a distance of 369.83 feet

to the P.C.C. of a curve, concave northerly, having a radius of

2818.85 feet, central angle of 2 degrees 04 minutes 29 seconds;

and a chord bearing of north 33 de grees 16 minutes 41 second

east; thence run easterly along the arc of said curve a distance

of 102.00 feet; thence south 49 degrees 15 minutes 56 second

east a distance of 142.40 feet to the P.C. of a curve, concave

easterly, having a radius of 25.00 feet, central angle of 80

degrees 21 minutes 26 seconds, and a chord bearing of north 08

degrees 00 minutes 29 seconds west, thence run northerly along

the arc of said curve a distance of 35.06 feet to the P.R.C. of

a curve, concave northwest, having a radius o f 2938.85 feet,

central angle of 8 degrees 19 minutes 23 seconds, and a chord

bearing of north 28 degrees 00 minutes 33 second east; thence

run northerly along the arc of said curve a distance of 126.91

feet; thence north 23 degrees 50 minutes 51 seconds e ast a

distance of 125.00 feet; to the point of beginning; thence

continue north 23 degrees 50 minutes 51 seconds east a distance

of 227.35 feet to the north line of said section 16; thence

continue north 23 degrees 50 minutes 51 seconds east a distance

of 123.65 feet; thence south 76 degrees 52 minutes 06 seconds

was a distance of 462.98 feet to the north line of said section

16; thence continue south 76 degrees 52 minutes 06 seconds east

a distance of 216.11 feet; thence south 48 degrees 20 minutes 31

seco nds east a distance of 1737.34 feet; thence south 04 degrees

12 minutes 29 seconds east a distance of 450.94 feet; thence

north 60 degrees 12 minutes 29 seconds west a distance of 698.75

feet; thence north 79 degrees 12 minutes 29 seconds west a

distance o f 393.78 feet; thence north 31 degrees 58 minutes 15

seconds west a distance of 463.90 feet; thence north 64 degrees

20 minutes 47 seconds west a distance of 474.24 feet; thence

north 48 degrees 09 minutes 28 seconds west a distance of 628.10

feet to the p oint of beginning.

Also less and except the property described in Official Records

Book 561, page 358; Official Records Book 318, page 1002, 1007;

Official Records Book 276, page 61; Official Records Book 595,

page 196; and Official Records Book 600, page 52, all of the

public records of Flagler County, Florida.

42 ___ - 1.002 Supervisors. The following five persons are

designated as the initial members of the Board of Supervisors:

Mark Ambach; Doug Ross; Andy Hagen; Dick Smith; and Jean

Trinder.