03-001485 In Re: Petition For Rule Creation - Durbin Crossing Community Development District vs. * Status: Closed Recommended Order on Friday, July 11, 2003.

Summary: Community Development District Rule Petition met statutory criteria.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: PETITION FOR RULE )

CREATION DURBIN CROSSING ) Case No. 03 - 1485

COMMUNITY DEVELOPMENT DISTRICT )

___________________________________)

REPORT TO THE FLORIDA LAND AND W ATER ADJUDICATORY COMMISSION

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

Richard A. Hixson, Administrative Law Judge, conducted a public

hearing on Wednesday, June 18, 2003, at 1:00 p.m., in

St. Augustine, St. Johns County, for the purpose of tak ing

testimony and public comment and receiving exhibits on the

Petition of SouthStar Development Partners, Inc., to establish

the Durbin Crossing Community Development District. For the

purpose of conducting the public hearing only, this matter was

consol idated with IN RE: PETITION FOR RULE CREATION - ABE RDEEN

COMMUNITY DEVELOPMEN T DISTRICT (DOAH Case No. 03 - 1486, FLWAC Case

No. CDD - 03 - 007).

STATEMENT OF THE ISS UE

The sole issue to be addressed is whether the Petition to

establish the Durbin Crossing Co mmunity Development District

meets the applicable criteria set forth in Chapter 190, Florida

Statutes, and Chapter 42 - 1, Florida Administrative Code.

APPEARANCES

For Petitioner SouthStar Development Partners, Inc.

Cheryl G. Stuart, Esquire

Brian A. Crumbaker, Esquire

Hopping Green & Sams, P.A.

123 South Calhoun Street

Post Office Box 6526

Tallahassee, Florida 32314

In attendance for St. Johns County:

Isabelle Lopez, Esquire

Bruce Ford, Planner

County Attorney's Office

4020 Lewis Speedway

St. Augustine, Florida 32095

Public Attendees:

See Exhibit 3 of this Report

PRELIMINARY STATEMENT

1. On April 18, 2003, the Petitioner, SouthStar Development

Partners, Inc. (Petitioner), filed a Petition to E stablish the

Durbin Crossing Community Development District with the Secretary

of the Florida Land and Water Adjudicatory Commission

( Commission). Prior to filing with the Commission, the

Petitioner delivered six copies of the Petition and its

attachments, along with the requisite filing fee, to the Clerk of

the Court for St. Johns County. A copy of the Petition,

including its attachme nts, was received into evidence as

Petitioner's Composite Exhibit B.

2. On April 23, 2003, the Secretary of the Commission

certified that the Petition contained all required elements and

forwarded the Petition to the Division of Administrative Hearings

(D OAH) for the purpose of holding the local public hearing

required under Section 190.005(1)(d), Florida Statutes. The

Secretary requested that DOAH combine the local public hearing in

this matter with the local public hearing for the proposed

Aberdeen Comm unity Development District because both proposals

have been submitted by the same Petitioner, are traveling the

same process path, and are located in close proximity to each

other in St. Johns County. A copy of the Secretary's

correspondence to DOAH was r eceived into evidence as Petitioner's

Exhibit F.

3. The Commission published a Notice of Receipt of Petition

in the Florida Administrative Weekly on May 30, 2003. A copy of

the Notice of Receipt of Petition was received into evidence as

Petitioner's Exhi bit D.

4. The local public hearing was scheduled in St. Augustine,

St. Johns County, Florida, for Wednesday, June 18, 2003, at

1:00 p.m. The Petitioner published notice of the hearing in

accordance with Section 190.005(1)(d), Florida Statutes. The

Proof of Publication of the Notice of Local Public Hearing was

received into evidence as Petitioner's Exhibit N.

5. The land to be included within the proposed District is

contained wholly within the boundaries of St. Johns County,

Florida. The land within th e external boundaries of the proposed

District is neither contained within nor contiguous to the

boundaries of any other municipality or county.

6. 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. The Board of

County Commissioners for St. Johns County, Florida, did not hold

such a hearing.

7. At the local public hearing on June 18, 2003, the

Petitioner presented the testimony of: J. Thomas Gillette, III,

Regional Manager for North Florida for SouthStar Development

Partners, Inc.; Douglas E. Miller, P.E., a civil engineer with

England, Thims and Miller, Inc., and an expe rt in civil

engineering and the provision of public infrastructure; Gary R.

Walters, President of Gary Walters and Associates, a community

planning and management consulting firm, and an expert in

planning and community development district management; and Carey

Garland, Director of Public Finance for Fishkind & Associates,

Inc., and an expert in economic and financial analysis. The full

names and addresses of the Petitioner's witnesses are attached to

this Report as Exhibit 1. The Petitioner offered Peti tioner's

Exhibits A through P, which were received into evidence at the

hearing. Of the exhibits received into evidence, Petitioner's

Exhibits B, D, F, H, I, K, L, N, O, and P are relevant to the

establishment of the Durbin Crossing Community Development

District. A full list of the Petitioner's Exhibits in this

proceeding is attached to this report as Exhibit 2.

8. Six members of the public and two persons from St. Johns

County were present for the local public hearing. Five members

of the public testi fied during the course of the public hearing

and Public Exhibits One through Six were received. The full

names and addresses of members of the public who attended the

hearing and a list of the Public Exhibits received are attached

to this report as Exhibi t 3. None of the public attendees at the

hearing are residents of or landowners within the boundaries of

the proposed District.

9. The Petitioner caused a transcript of the local public

hearing to be prepared which was filed with DOAH on July 3, 2003.

A copy of the one - volume transcript along with the hearing

exhibits is being transmitted with this Report to the Commission.

On July 3, 2003, the Petitioner filed a Proposed Report of

Findings and Conclusions, which has been fully considered in the

preparat ion of this Report to the Commission.

SUMMARY OF HEARING

Overview

10. The Petitioner seeks the adoption of a rule by the

Commission to establish a community development district proposed

to consist of approximately 2,047 acres located within the

boundarie s of unincorporated St. Johns County. The suggested

name for the proposed District is the Durbin Crossing Community

Development District.

11. There is one parcel within the external boundaries of

the proposed District which is to be excluded from the Di strict.

This out - parcel consists of a Jacksonville Electric Authority

(JEA) owned mitigation parcel of 1.15 acres, more or less, that

will not be adversely impacted by the establishment of the

District.

12. As certified by the Commission, the Petition c ontains

all of the information required by statute, including the names

of five persons who are residents of Florida and citizens of the

United States to serve as the initial members of the Board of

Supervisors. The Petitioner intends for the proposed Dis trict to

provide a variety of infrastructure and services, including off -

site and on - site roadway improvements, water and sewer

facilities, landscaping, drainage, and recreational amenities.

The estimated cost of the infrastructure facilities and services

which are presently expected to be provided to the lands within

the District was included in the Petition, as well as the

timetable for construction. The Petitioner has identified who it

expects will own, operate, and maintain each of these facilities.

13. The Petitioner also anticipates that the District will,

in cooperation with the St. Johns County School Board (School

Board), finance and construct a new school to be located within

the boundaries of the proposed Durbin Crossing Community

Development District. A Memorandum of Understanding regarding

this plan has been entered into by and between the Petitioner and

the School Board. Pursuant to the Memorandum of Understanding,

the underlying real property will be donated by the Petitioner.

The Memora ndum of Understanding also contemplates that the

District and the School Board will enter into a lease - purchase

agreement for the facility, which agreement will serve as

security for any bonds issued by the District to finance the

school. The school facil ities are expected to be constructed in

sufficient time to open when projections by the School Board

indicate that the school will be occupied by at least 450

students.

14. The sole purpose of this proceeding was to consider the

establishment of the propo sed District over the land area

identified as proposed by the Petitioner.

Summary of Evidence and Testimony

A. Whether all statements contained within the Petition have

been found to be true and correct.

15. The Petitioner's Composite Exhibit B was identified for

the record as a copy of the Petition and its attachments as filed

with the Commission.

16. J. Thomas Gillette, III, Petitioner's Regional Manager

for N orth Florida, testified that he had reviewed the contents of

the Petition and appr oved its findings. Mr. Gillette also

generally described certain of the attachments to the Petition.

Finally, Mr. Gillette testified that the Petition and its

attachments, as admitted into evidence as Petitioner's Exhibit B,

are true and correct to the be st of his knowledge.

17. Douglas E. Miller, a civil engineer with England,

Thims, and Miller, Inc., testified that he had assisted in the

preparation of portions of the Petition and its attachments.

Mr. Miller also generally described certain of the atta chments to

the Petition which he or his office had prepared. Finally,

Mr. Miller testified that the attachments to the Petition

prepared by England, Thims & Miller, Inc., and admitted into

evidence as part of Petitioner's Exhibit B, are true and correct

t o the best of his knowledge.

18. Cary Garland, Director of Public Finance for Fishkind &

Associates, Inc., testified that he had prepared Attachment 13 to

Exhibit B, the Statement of Estimated Regulatory Costs (SERC).

Mr. Garland also testified that the SERC submitted as Attachment

13 to the Petitioner's Composite Exhibit B is true and correct to

the best of his knowledge.

19. The Petition included written consent to establish the

District from the owners of 100 percent of the real property

located wit hin the lands to be included in the proposed District.

Mr. Gillette testified that the ownership of the lands to be

included within the proposed District had not changed since the

filing of the Petition.

20. Based upon the foregoing, the Petition and its exhibits

are true and correct.

B. 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.

21. This criterion requires an analysis of whether the

establishment of the proposed District is inconsistent with

various provisions of applicable comprehensive plans. In this

regard, S ection 190.002(2)(d), Florida Statutes, provides in

pertinent part, that the establishme nt of a district shall "be

based only on factors material to managing and financing of the

service delivery function of the district, so that any matter

concerning permitting or planning of the development is not

material or relevant." The statute further provides that the

acts of a community development district must be consistent with

all applicable environmental and land use permitting and land use

requirements. Section 190.004(3), Florida Statutes . In light of

these statutory provisions, review of th is criterion by the

witnesses at hearing focused on whether establishing the proposed

District to provide specified services and facilities was

inconsistent with provisions of the comprehensive plans.

22. Gary R. Walters, P resident of Gary Waters and

Asso ciates, an expert witness qualified in planning and

development district management, reviewed the proposed District

in light of the requirements of the State Comprehensive Plan,

Chapter 187, Florida Statutes. Mr. Walters also reviewed the

proposed Distric t in light of the requirements of the St. Johns

County 2015 EAR Based Comprehensive Plan Amendment. Mr. Walters

opined that the proposed District was not inconsistent with any

applicable provisions of the comprehensive plans, as set forth

below.

23. The State Comprehensive Plan provides long - range policy

guidance for the orderly social, economic and physical growth of

the State by way of twenty - five subjects, and numerous goals and

policies. See Chapter 187, Florida Statutes. 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.

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

locating development in areas with the fisca l ability and service

capacity to accommodate growth. The proposed District will have

the fiscal ability to provide services and facilities and to help

provide infrastructure in a fiscally responsible manner in an

area which can accommodate development wi thin St. Johns County.

25. Subject 25, Plan Implementation, provides that

systematic planning shall be integrated into all levels of

government, with emphasis on intergovernmental coordination. The

proposed District is consistent with this element of t he State

Comprehensive Plan because the proposed District will plan for

the construction, operation and maintenance of the public

improvements and the community facilities authorized under

Chapter 190, Florida Statutes, subject to and not inconsistent

wit h the local government comprehensive plan and land development

regulations. Additionally, the District meetings are publicly

advertised and are open to the public so that all District

property owners and residents can be involved in planning for

improveme nts. Finally, Section 189.415, Florida Statutes,

requires the District to file and update public facilities

reports with the County or City, which they may rely upon in any

revisions to the local comprehensive plan.

26. In addition, the school facility that the Petitioner

expects to be constructed within the District is the subject of a

Memorandum of Understanding that contemplates an interlocal

agreement between the School Board and the District. The

interlocal agreement will govern the financing, cons truction,

ownership and maintenance of the school facilities. The

interlocal agreement will be the subject of final review and

approval by the Board of Supervisors for the District and the

School Board during meetings open to the public. This

arrangement between two governmental bodies is consistent with

this subject in the State Comprehensive Plan.

27. Mr. Garland reviewed the proposed District in light of

the fiscal requirements of the State Comprehensive Plan, Chapter

187, Florida Statutes. From a fi nancial perspective, two

subjects of the State Comprehensive Plan apply directly to the

establishment of the proposed District, as do the policies

supporting those subjects.

28. Subject 17, Public Facilities, provides that the state

shall protect substan tial investments in public facilities and

plan for and finance new facilities to serve residents in a

timely, orderly and efficient manner. Mr. Garland testified that

the proposed District will be consistent with this element

because the District: will p lan and finance the infrastructure

systems and facilities needed for the development of lands within

the District; be a stable, perpetual unit of local government and

be able to maintain the infrastructure servicing the lands within

the District; and allow growth within the District to pay for

itself at no cost to St. Johns County.

29. Subject 20, Governmental Efficiency, provides that

governments shall economically and efficiently provide the amount

and quality of services required by the public. Mr. Ga rland

testified that the proposed District will be consistent with this

element because the proposed District will economically and

efficiently finance and deliver those public services and

facilities as needed by the District's residents and property

owne rs. Mr. Garland also testified that the proposed District

will be professionally managed, financed and governed by those

whose property directly receives the benefits of the services and

the facilities provided and that creating the proposed District

does not burden the general taxpayer with the costs for the

services or facilities inside the proposed District.

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

proposed District will not be inconsistent with any applicable

element or portion of t he State Comprehensive Plan.

31. The St. Johns County Comprehensive Plan contains

various elements which are supported by numerous goals and

objectives. Mr. Walters testified that the establishment of the

proposed District was not inconsistent with the relevant portions

of the local comprehensive plan and that portions of the St.

Johns County Comprehensive Plan are supportive of the

establishment of the proposed District. From a planning and

economic perspective two portions of the local comprehensive p lan

are relevant.

32. Within the Capital Improvements Element of the St.

Johns County Comprehensive Plan, Goal H.1 and the Objectives

therein seek to ensure the orderly and efficient provision of

infrastructure facilities and services such as sanitary sew er,

potable water, drainage, roads, utilities, and recreation/open

space. Mr. Walters testified that establishment of the proposed

District is consistent with this goal of the St. Johns County

Comprehensive Plan because the District will serve as an

alter native provider of infrastructure, thereby meeting the needs

of the lands within it. In addition, the provision of

infrastructure by the District will not reduce the fiscal

resources or the bonding capacity of St. Johns County.

33. Mr. Walters testified that establishment of the

District is also consistent with Goal H.1 because a community

development district is capable of knowing when, where and how

infrastructure improvements will be needed to service projected

development within the District. This r esults in the full

utilization of existing facilities before new facilities are

constructed or services are provided, even if the land uses

within the District and the specific nature and type of

infrastructure are altered.

34. Within the Intergovernmenta l Coordination Element, Goal

G - 1 calls for St. Johns County to work cooperatively with other

units of government to address issues and concerns. Mr. Walters

testified that the proposed District and St. Johns County will be

able to enter into interlocal ag reements which will foster

efficient and cooperative approaches to the resolution of

external issues. In addition, the Memorandum of Understanding

entered into by the St. Johns County School Board and the

Petitioner contemplates an interlocal agreement be tween the

District and the School Board which will govern the financing,

construction, ownership and maintenance of the school facilities.

Mr. Garland testified that it is anticipated that the interlocal

agreement will implement a creative financing plan, resulting in

the educational facility's being available for use earlier then

would typically be the case.

35. The proposed development within the District is the

subject of a Chapter 380, Florida Statutes, Development Order

approved by St. Johns County. The Development Order itself

specifically notes that a community development district may be

established to finance, fund, plan, establish, acquire, construct

and reconstruct, enlarge or extend, equip, operate and maintain

projects, systems and facilities for the purposes described in

Section 190.012, Florida Statutes, including the public school

facilities.

36. On June 17, 2003, the day prior to the local public

hearing, a letter was filed with DOAH by Mr. Terrell K. Arline,

Esquire, (Public Exhibit 6), taking the position that the

District should not be established because a comprehensive plan

amendment and the Development Order adopted by St. Johns County

were not in effect. While amendments to the St. Johns County

Comprehensive Plan have been adopted by St. Johns County and

transmitted to the Department of Community Affairs, the

amendments are not yet effective. Mr. Arline stated that he

represented individuals who were in the process of challenging

the amendments as inconsistent with and not being i n compliance

with certain provisions of Chapter 163, Florida Statutes, and

Rule 9J - 5, Florida Administrative Code. Mr. Arline stated in his

letter that he was unable to attend the local public hearing, and

did not appear at hearing.

37. Under Chapter 190 , Florida Statutes, the statutory

requirements for processing the Petition to Establish a Community

Development District do not mandate development order approval or

effectiveness prior to considering the establishment of a

proposed district. The status o f the St. Johns County

Comprehensive Plan amendments do not adversely impact the

proposed establishment of the Durbin Crossing Community

Development District. Mr. Walters testified that the

comprehensive plan amendments adopted by the Board of County

Comm issioners for St. Johns County will have no effect on the

portions of the St. Johns County Comprehensive Plan relevant to

this proceeding. Mr. Walters testified that establishment of the

District is based upon those factors material to managing and

financ ing the service - delivery function of the District; matters

concerning permitting or planning of the development are not

material or relevant. Section 190.002(2)(d), Florida Statutes .

A petitioner is only required to provide a good faith estimate of

the t iming and cost of district services and infrastructure.

Section 190.005(1)(a)6., Florida Statutes . The statute

acknowledges that the level and type of services ultimately

provided may change. The factors to be considered when

determining whether to estab lish a community development district

are explicitly set forth in Section 190.005(1)(e), Florida

Statutes. The establishment of a community development district

is not a development order within the meaning of Chapter 380,

Florida Statutes, and does not i n any way impact or change the

applicability of any governmental planning, environmental and

land development laws, regulations, or ordinances. Section

190.004(3), Florida Statutes. Finally, Mr. Walters testified

that the proposed District cannot take an y action that is

inconsistent with the comprehensive plan, code of ordinances, or

regulations of St. Johns County.

38. Based on the record, establishment of the proposed

District will not be inconsistent with any applicable element or

portion of the Lo cal Comprehensive Plan, and will further the

goals identified.

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

int errelated community.

39. Testimony on this criterion was provided by Messrs.

Miller, Walters, and Garland. The proposed District will include

approximately 2,047 acres, located within the borders of St.

Johns County, Florida.

40. All of the land in th e proposed District is part of a

planned community included in the Durbin Crossing Development of

Regional Impact (the DRI).

41. Mr. Walters testified that functional interrelation

means that each community purpose has a mutual reinforcing

relationship wi th each of the community's other purposes. Each

function requires a management capability, funding source and an

understanding of the size of the community's needs, so as to

handle the growth and development of the community. Each

function must be design ed to contribute to the development or the

maintenance of the community.

42. The size of the District as proposed is approximately

2,047 acres. From a planning perspective, this is a sufficient

size to accommodate the basic infrastructure facilities and

services typical of a functionally interrelated community.

Mr. Walters testified that the proposed facilities can be

provided in an efficient, functional and integrated manner.

43. Compactness relates to the location in distance between

the lands and l and uses within a community. The community is

sufficiently compact to be developed as a functionally inter -

related community. The compact configuration of the lands will

allow the District to provide for the installation and

maintenance of its infrastruc ture in a long - term, cost efficient

manner.

44. Mr. Gillette testified that the Petitioner is

developing all of the lands within the District as a single

master planned community.

45. From planning, economics, engineering 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.

D. Whether the proposed district is the best alterna tive

available for delivering community development services

and facilities to the area that will be served by the

proposed district.

46. It is presently intended that the District will

construct or provide a variety of infrastructure and s ervices,

including off - site and on - site roadway improvements, water and

sewer facilities, landscaping, drainage, educational facilities

and recreational amenities as outlined in the Petition.

47. With the exception of the School Facility, installation

and maintenance of infrastructure systems and services by the

proposed District are expected to be paid through the imposition

of special assessments. Use of such assessments will ensure that

the real property benefiting from District services is the same

pr operty which pays for them.

48. Mr. Gillette testified that with regard to the School

Facility proposed for Durbin Crossing, the Petitioner anticipates

that the District will issue tax exempt bonds for construction.

A lease - purchase agreement is expecte d to provide for lease

payments to the District that will be used to secure the bonds.

The lease payments will be subject to an annual appropriation by

the School Board, but it is expected that impact fees generated

from development, as well as any increa se in ad valorem tax

revenues received by the School Board as a result of development,

will provide significant sources of new revenue to make the

payments. Mr. Gillette testified that the Petitioner does not

anticipate that assessments paid by the homeow ners will be used

to finance the school.

49. Two alternatives to the use of the District were

identified. First, St. Johns County might provide facilities and

services from its general fund. Second, facilities and services

might be provided by some pri vate means, with maintenance

delegated to a property owners' association or a homeowners'

association.

50. Mr. Walters testified that the District is preferable

to these other two alternatives at focusing attention on when,

where and how the next system of infrastructure will be required.

The ability of the District to focus on planning of the system of

infrastructure results in a full utilization of existing

facilities before new facilities are constructed and reduces the

delivered cost to the citizens b eing served.

51. The District will construct certain infrastructure and

community facilities which will be needed by the property owners

and residents of the project. Expenses for the operation and

maintenance of the facilities the District retains are expected

to be paid through maintenance assessments to ensure that the

property receiving the benefit of the district services is the

same property paying for those services.

52. Mr. Walters testified that only a community development

district allows for the independent financing, administration,

operation and maintenance of the land within such a district.

Only a community development district allows district residents

to ultimately completely control the district. The other

alternatives do not have th ese characteristics.

53. A property owners' or homeowners' association does not

have the authority to finance and construct school buildings and

related structures, which may be leased, sold, or donated to the

School Board. The proposed District has suc h authority subject

to approval by local government. In addition, the proposed

District will have the authority to enter into an interlocal

agreement with the School Board which will govern the financing,

construction, and short - term and long - term ownersh ip and

maintenance of the school facilities. Such intergovernmental

cooperation is a benefit to residents within and without the

boundaries of the District.

54. Mr. Miller testified that from an engineering

perspective, the proposed District is the best alternative to

provide the proposed community development services and

facilities to the land included in the proposed District because

it is a long - term, stable, perpetual entity capable of

maintaining the facilities over their expected life.

55. From planning, economic, engineering, and special

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.

E. Whethe r 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.

56. The services and facilities propos ed to be provided by

the District are not incompatible with the uses and the capacity

of existing local and regional facilities and services. The

District's facilities and services will not duplicate any

existing regional services or facilities. None of the proposed

services or facilities are presently being provided by another

entity for the lands to be included within the District. The

proposed District is expected to enhance the capacity of existing

county roads.

57. The community development servic es and facilities of

the proposed District will not be incompatible with the capacity

and uses of existing local and regional community development

services and facilities.

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

amenable to separat e special - district government.

58. As cited previously, from planning, economics,

engineering, and special district management perspectives, the

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

sufficient size, is sufficiently compact, and is s ufficiently

contiguous to be developed and become a functionally interrelated

community. The community to be included in the District has need

for certain basic infrastructure systems and the proposed

District provides for an efficient mechanism to overse e the

installation of these improvements.

59. From planning, engineering, economic and management

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

amenable to separate special - district government.

G. Other requirements imposed by statute or rule.

60. Chapter 190, Florida Statutes, and Chapter 42 - 1,

Florida Administrative Code, impose specific requirements

regarding the petition and other information to be submitted to

the Commission.

Elements of the Petition

61. As reflected in the Petitio ner's Exhibit F, the

Commission has certified that the Petition to Establish the

Durbin Crossing Community Development District meets all of the

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

Statement of Estimated Regulatory Costs

62. The Stat ement of Estimated Regulatory Costs (the SERC),

attached to the Petition contains an estimate of the costs and

benefits to all persons directly affected by the proposed rule to

establish the District, i.e. , the State of Florida and its

citizens, the County and its citizens, the Petitioner, and

consumers.

63. Beyond administrative costs related to rule adoption,

the State and its citizens will only incur minimal costs from

establishing the proposed 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. Benefits will include

improved planning and coordination of development, which is

difficult to quantify but nonethel ess substantial.

64. Administrative costs 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 the

St. Johns County. The County incurred no costs a ssociated with

the optional local hearing because it elected not to conduct one.

65. Consumers will pay non - ad valorem or special

assessments for certain facilities, and locating within the

proposed District is voluntary. Generally, the proposed

District 's financing will be less expensive than maintenance

through a property owners' association or capital improvements

financed through developer loans. Benefits to consumers in the

area within the community development district will include a

higher level o f 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 community development services and facilities

within the area.

66. S ection 190.005(1)(a), Florida Statutes, requires the

petition to include a SERC which meets the requirements of

Section 120.541, Florida Statutes. The P etition contains a SERC.

It meets all requirements of Section 120.541, Florida Statutes.

Other Requir ements

67. Petitioner has complied with the provisions of Section

190.005(1)(b)1., Florida Statutes, in that St. Johns County was

provided six copies of the Petition and was paid the requisite

filing fee.

68. Section 190.005(1)(d), Florida Statutes, req uires the

Petitioner to publish notice of the local public hearing in a

newspaper of general circulation in St. Johns County for four (4)

consecutive weeks prior to the hearing. As evidenced by

Petitioner's Exhibit N, the notice was published in a newspap er

of general paid circulation in St. Johns County (The St.

Augustine Record) for four consecutive weeks, on May 21, 2003,

May 28, 2003, June 4, 2003, and June 11, 2003.

Public Comment During the Hearing

69. Five members of the public presented comments at the

hearing. The public comments addressed a wide range of issues,

including the recitation of personal negative experiences with

other community development districts. The public comments

generally focused on dissatisfaction with Chapter 190, Florid a

Statutes, and the statutory authorization for the creation of

community development districts. Two speakers requested earlier

and more detailed disclosures of the impact on residents of

living in a community development district. The majority of the

pu blic comments addressed statutory revision matters better

presented to the legislature. Several comments, however, which

are not directly tied to the statutory criteria, are briefly

addressed here.

70. Two speakers expressed concern about a request f iled

with St. Johns County by the Petitioner seeking the County's

consent for the District to exercise the power of eminent domain

outside the boundaries of the District. A community development

district has such authority within and without the boundarie s of

the district pursuant to Section 190.011(11), Florida Statutes.

A community development district may exercise its eminent domain

power within the district only for the uses and purposes of the

district relating solely to water, sewer, district roads, and

water management . Before exercising of the power of eminent

domain beyond the boundaries of a community development district,

the governing body of the county (if the taking will occur in an

unincorporated area) or a municipality (if the taking will occur

within an incorporated area) must grant prior approval by

resolution. Id. Accordingly, it is apparent from the language

of Section 190.011(11), Florida Statutes, that the issue of

whether a community development district may exercise the power

of e minent domain is not an issue to be considered by the Florida

Land and Water Adjudicatory Commission when determining whether

to establish the District. In this case, a grant of such

authority for this proposed District could only come from St.

Johns Coun ty. As explained in Public Exhibit 3 and by

Petitioner's counsel at hearing, the request relates to the

possible construction of offsite county roads in right of way not

presently owned by either the county or the Petitioner. This is

not a matter to be re solved in an establishment hearing.

Moreover, the law contains no time limit for the request of such

authority by a district. Thus, a district could seek this

consent at any point in its lifetime.

71. Another comment was made regarding the use of ad

val orem taxing authority by a community development district. A

community development district, once established, may impose ad

valorem taxes on the lands within the district provided that

prior to the exercise of that power, the board of the district

must b e composed of registered voters living in the district who

have been elected by voters in the district. Section 190.021(1),

Florida Statutes. Accordingly, a district can only exercise that

power if the voters within the district choose to tax themselves;

a board composed of landowner - elected members cannot impose those

taxes. The Petitioner is not proposing to ask the District to

exercise this power.

72. Finally, a member of the public questioned the

constitutionality of Chapter 190, Florida Statutes. The

constitutionality of a statute is not properly raised in an

administrative proceeding before the Division of Administrative

Hearings. See Butler v. State of Florida, Department of

Insurance , 680 So. 2d 1103 (Fla. 1st DCA 1996). Moreover, it

should be noted that the Florida Supreme Court has previously

addressed the constitutionality of Chapter 190, Florida Statutes,

in State v. Frontier Acres Community Development District , 472

So. 2d 455 (Fla. 1985), in which the Court held Chapter 190,

Florida Statu tes, constitutional.

COMPARISON OF INFORM ATION IN RECORD TO A PPLICABLE LAW

73. This proceeding is governed by Chapters 120 and 190,

Florida Statutes, and Chapter 42 - 1, Florida Administrative Code.

74. The proceeding was properly noticed pursuant to Secti on

190.005, Florida Statutes, by publication of an advertisement in

a newspaper of general paid circulation in St. Johns County and

of general interest and readership once each week for the four

consecutive weeks immediately prior to the hearing.

75. The Petitioner has met the requirements of Section

190.005, Florida Statutes, regarding the submission of the

Petition and satisfaction of filing fee requirements.

76. The Petitioner bears the burden of establishing that

the P etition meets the relevant statu tory criteria set forth in

Section 190.005(1)(e), Florida Statutes.

77. All portions of the Petition and other submittals have

been completed and filed as required by law.

78. All statements contained within the Petition as

corrected and supplemented at the hearing are true and correct.

79. The establishment of the District is not inconsistent

with any applicable element or portion of the State Comprehensive

Plan or the effective St. Johns County Comprehensive Plan.

80. The area of land within the prop osed District is of

sufficient size, is sufficiently compact, and is sufficiently

contiguous to be developable as one functional interrelated

community.

81. The proposed District is the best alternative available

for delivering community development serv ices and facilities to

the area that will be served by the District.

82. The community development services and facilities of

the proposed District will not be incompatible with the capacity

and uses of existing local and regional community development

se rvices and facilities.

83. The area to be served by the proposed District is

amenable to separate special district government.

CONCLUSION

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

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

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. Rather, it is a quasi - legislative,

informa tion - gathering hearing that is part of the rulemaking

process. Section 120.54(8)(c), Florida Statutes, describes the

Rulemaking Record as including: "A written summary of hearings

on the proposed rule." For these reasons, a recommended order is

not appr opriate. 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 the Commission

"shall consider the entire re cord 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 11th day of July, 2003, in

Tallahassee, Leon County, Florida.

S

RICHARD A. HIXSON

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 11th day of July, 2003.

COPIES FURNISHED:

Donna Arduin, Secretary

Florida Land and Water Adjudicatory Commission

The Capitol, Room 2105

Tallahassee, Florida 32399 - 0001

Barbara Leighty, Clerk

Growth Mana gement and Strategic Planning

The Capitol, Room 2105

Tallahassee, Florida 32399 - 0001

Cheryl G. Stuart, Esquire

Hopping Green & Sams, P.A.

123 South Calhoun Street

Post Office Box 6526

Tallahassee, Florida 32314

Isabelle Lopez, Esquire

Bruce Ford, Plann er

County Attorney's Office

4020 Lewis Speedway

St. Augustine, Florida 32095

Exhibit 1

Names and Addresses of Petitioner's Witnesses

1. J. Thomas Gillette, III

SouthStar Development Partners

4720 Salisbury Road, Suite 125

Jacksonville, Florida 32256

2. Douglas C. Miller

England - Thims & Miller, Inc.

14775 St. Augustine Road

Jacksonville, Florida 32258

3. Carey Garland

Fishkind & Associates, Inc.

11869 High Tech Avenue

Orlando, Florida 32817

4. Gary R. Walters

Gary Walters & Associates, Inc.

12 Crooked Tree Trail

Ormond Beach, Florida 32174

Exhibit 2

List of Petitioner's Exhibits:

Exhibit A: Petition to Establish the Aberdeen Community

Development District

Exhibit B: Petition to Establ ish the Durbin Crossing Community

Development District

Exhibit C: Notice of Receipt of Petition (Aberdeen)

Exhibit D: Notice of Receipt of Petition (Durbin Crossing)

Exhibit E: Referral Letter to the Division of Administrative

Hearings (Aberdeen)

Ex hibit F: Referral Letter to the Division of Administrative

Hearings (Durbin Crossing)

Exhibit G: Referral Letter to the Department of Community

Affairs (Aberdeen)

Exhibit H: Referral Letter to the Department of Community

Affairs (Durbin Crossing)

Exh ibit I: Petition Filing Letter and Receipt From St. Johns

County

Exhibit J: Resolution 2003 - 62 (Development Order for Aberdeen)

Exhibit K: Resolution 2003 - 61 (Development Order for Durbin

Crossing)

Exhibit L: Memorandum of Understanding (SouthStar a nd the School

Board)

Exhibit M: Four Notices filed with St. Augustine Record

announcing the Aberdeen Community Development District hearings

Exhibit N: Four Notices filed with St. Augustine Record

announcing the Durbin Crossing Community Development District

hearings

Exhibit O: General location of the two Community Development

Districts

Exhibit P: Chapter 187 State Comp Plan

Exhibit 3

SECTION I: Members of the Public Who Attended

1. Don Beattle

808 Mill Pond Court

Jacksonville, Fl orida 32259

2. Louise Thrower

288 Orange Avenue

Fruit Cove, Florida 32259

3. Ellen A. Whitmer

1178 Natures Hammock Road, South

Fruit Cove, Florida 32259

4. Phyllis Abbatiello

1133 River Birch Road

Fruit Cove, Florida 32259

5. Frances Ziolkowski

260 Bell Branch Lane

Fruit Cove, Florida 32259

6. Jenny Henningsen

161 County Road 13, South

St. Augustine, Florida 32092

SECTION II: List of the Public Exhibits Received

Public Exhibit 1: List of Public Att endees.

Public Exhibit 2: "Taxes: Districts are not governments,

judge says," The Florida Times Union.

Public Exhibit 3: Correspondence from Cheryl G. Stuart to

Mr. Bruce Ford, Chief Planner for St. Johns County, dated

April 18, 2003.

Public Exhibi t 4: Statement before the Florida Land and Water

Adjudicatory Commission, dated June 18, 2003.

Public Exhibit 5: How do they do this? accompanied by

Community Development Districts, Taxation without

Representation?

Public Exhibit 6: Correspondenc e from Terrell K. Arline to

Mr. Donald R. Alexander, Administrative Law Judge, with

attachments, dated June 17, 2003.