03-003892 In Re: Petition For Rule To Establish The Pine Island Community Development District vs. * Status: Closed Recommended Order on Thursday, January 22, 2004.

Summary: The local public hearing was held on the Petition to establish a community development district. The evidence received supported the Petition.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: PETITION FOR RULE )

CREATION - PINE ISLAND ) Case No. 03 - 3892

COMMUNITY DEVELOPMENT DISTRICT. )

)

ADMINISTRATIVE LAW JUDGE'S REPORT TO

THE FLORIDA LAND A ND WATER ADJUDICATORY COMMISSION

On December 8, 2003, a local public hearing under Section

190.005(1)(d), Florida Statutes, was conducted in Tavares,

Florida, by J. Lawrence Johnston, Administrative Law Judge (ALJ)

of the Division of Administrative Heari ngs (DOAH).

APPEARANCES

For Petitioner: Thomas F. Lang, Esquire

Allen, Lang, Carpenter & Reed, P.A.

14 East Washington Street, Suite 600

Orlando, Florida 32801

STATEMENT OF THE ISSUE

The issue before the Florida Land and Water Adjudi catory

Commission (FLWAC) in this proceeding is whether to grant the

Petition for Establishment of the Pine Island Community

Development District (Petition), dated September 9, 2003. The

local public hearing was for purposes of gathering information

in an ticipation of quasi - legislative rulemaking by FLWAC. 1

PRELIMINARY STATEMENT

The Petition was filed by GINN - LA Pine Island LTD., LLLP, a

Georgia limited partnership (Petitioner), on September 24, 2003.

It requested that FLWAC adopt a rule to establish a state -

chartered uniform community development district, to be called

the Pine Island Community Development District, on certain

property in Lake County, Florida. The Petition includes six

exhibits.

FLWAC referred the Petition to DOAH on October 17, 200 3,

for assignment of an ALJ to conduct a local public hearing under

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

hearing before the ALJ was scheduled and was held at 1:00 p.m.,

on December 8, 2003, in the Tavares City Hall, in Tavares, Lake

C ounty, Florida. At the local public hearing, Petitioner

presented the testimony of Thomas McCarthy, employed by Ginn

Development Company, of Celebration, Florida; and Geoffrey

Summit, a civil engineer employed by Miller Einhouse Rymer &

Boyd, in Maitland, Florida. Petitioner also introduced seven

exhibits, which are described in paragraph 24 of the Summary of

Record, infra . One other person, who resides next to the

proposed CDD, also testified briefly during the hearing.

The Transcript of the local publ ic hearing was filed on

December 30, 2003. Petitioner filed a Proposed ALJ's Report to

FLWAC, which has been considered in the preparation of this

Report. References in the Report to "Tr." are to the cited page

of the Transcript. References to hearing e xhibits are to

exhibits introduced during the local public hearing. The

exhibits attached to the Petition are referred to as Petition

Exhibits.

SUMMARY OF RECORD

A. Petition and Related Matters

1. The Petition was submitted to FLWAC and Lake County and

the City of Montverde, Florida.

2. The Petition alleges that the land for the District is

located within Lake County. Petition Exhibit 1 depicts the

general location of the District. The proposed District covers

approximately 1,805 acres of land. The metes and bounds

description of the external boundaries of the District is set

forth in Petition Exhibit 2. There is no real property within

the external boundaries of the District that is excluded from

the District.

3. Petition Exhibit 3 incorpor ates the written consents to

the establishment of the District by the owners of 100 percent

of the real property to be included in the District; the sole

owner of the real property is GINN - LA Pine Island Ltd., LLLP.

4. The Petition identifies the names a nd addresses of

those designated to be the five initial members of the Board of

Supervisors of the District are as follows:

Name Address

Thomas McCarthy 851 Gran Paseo Drive

Orlando, Florida 32825

Kyle Meyers 1601 Pine Bluff Avenue

Orlando, Florida 32806

W. Wade Smith 535 Canary Island Court

Orlando, Florida 32828

Thomas Britt 3853 Winderlakes Drive

Orlando, Florida 32835

James Cooper 1100 North New York Avenue

Winter Park, Flori da 32789

5. The Petition states that the name of the proposed

District will be the "Pine Island Community Development

District."

6. The Petition alleges that there are currently no major

trunk water mains, sewer interceptors and/or outfalls in the

are a of the proposed District.

7. The Petition alleges that, based upon currently

available data, the proposed timetable for the construction of

the District services and the estimated cost of constructing the

proposed services, based on available data, is shown on Petition

Exhibit 4. This is alleged to be a good faith estimate but it

is not binding on Petitioner or the District and is subject to

change.

8. The Petition alleges that all of the land within the

proposed District is presently vacant. Petiti oner is currently

in the process of obtaining the required permitting for

developing multiple phases of single - family residential

subdivision(s), with an anticipated total of 785 single - family

residents. The proposed land uses within the District are

resi dential and recreational. The proposed uses for the land

included within the District are consistent with the Lake County

Comprehensive Land Use Plan (the "County Plan"). The County

Plan designates the land contained within the proposed District

for (1) residential uses at densities which permit the

development of the District with up to 868 residential lots with

public and private recreation areas; however, proposed

development (which plan is subject to change) currently calls

for construction of 785 tot al residential lots; and (2)

recreational uses including a golf course, a clubhouse with a

restaurant, swimming facilities, playgrounds, a community boat

ramp, and an equestrian facility with a restaurant. The

current, proposed future general distribution , location and

extent of public and private uses within the District (which are

subject to change) are shown in Petition Exhibit 5.

9. The Petition alleges and incorporates in its Exhibit 6

a Statement of Estimated Regulatory Costs prepared in accordance

with the requirements of Section 120.541, Florida Statutes.

10. The Petition alleges that the District is seeking the

right to exercise "all powers provided for in Section

190.012(1), Florida Statutes, and Sections 190.012(2)(a) and

(d), Florida Statute s." (Powers under paragraph (2)(a) (parks

and facilities for recreational, cultural, and educational uses)

and (d) (security) may be exercise only after consent is

obtained from the applicable local general - purpose government.)

11. The Petition allege s that the Petitioner is: GINN - LA

PINE ISLAND LTD., LLLP, whose address is 215 Celebration Place,

Suite 200, Celebration, Florida 34747.

12. The Petition alleges that the property within the

District is amendable to operating as an independent special

district for the following reasons:

a. The testimony submitted verified that

all statements contained in the Petition are

true and correct;

b. The District and all land uses and

services planned therein are not

inconsistent with applicable elements or

p ortions of the effective Lake County

Comprehensive Land Use Plan, as amended;

c. The area of land within the District is

part of a unified plan of development for

which a development plan has been or will be

approved by Lake County as part of the two

Pla nned Unit Developments (the Hillcrest PUD

and the Pine Island PUD) which were each

approved by Lake County. The land

encompassing the District is of sufficient

size and is sufficiently compact and

contiguous (a tunnel under C.R. 455 will

connect the two a reas of the development) to

be developed as one functional interrelated

community;

d. The proposed District is the best

alternative available for delivery community

development services to the area to be

served because the District provides a

governmenta l entity for delivery those

services and facilities in a manner that

does not financially impact persons residing

outside the District and provides a

responsible perpetual public entity capable

of making reasonable provisions for the

operation and maintena nce of the District

services and facilities in the future;

e. The community development services and

facilities of the District will be

compatible with the capacity and use of

existing local and regional community

development services and facilities;

1 3. Copies of the Petition, together with filing fees of

$15,000, were sent to Lake County and to the City of Montverde

on September 9, 2003. Hearing Exhibit 5.

B. Additional Information from Local Public Hearing

14. The local public hearing on the P etition was noticed

for and was held on December 8, 2003, in the Tavares City Hall,

an accessible location, in Tavares, Lake County, Florida.

Notice of the hearing was advertised on November 13, 20, 27, and

December 4, 2003, in The Orlando Sentinel, the L ake County

edition, a newspaper of general paid circulation in the county,

and of general interest and readership in the community, not one

of limited subject matter, pursuant to Chapter 50, Florida

Statutes. Hearing Exhibit 1. The published notices gave the

time and place for the hearing; a description of the area to be

included in the CDD, including a map showing clearly the area to

be covered by the CDD; and other relevant information. The

advertisements were not placed in that portion of the newspape r

where legal notices and classified advertisements appear.

15. The hearing commenced 23 minutes after the noticed and

scheduled time in order to give any persons who wanted to attend

ample time to do so (Tr. 1). Appearances were made by counsel

for the petitioning CDD. The only witness, other than the

Petitioner's two witnesses, was Mr. Donald Duncan, a resident of

Lake County, Florida, who asked to be noticed of future

hearings. (Tr. 30 - 31.)

16. The first witness for the Petitioner was

Thomas McC arthy. (Tr. 10 - 23.) Mr. McCarthy is employed by the

Ginn Development Company, as the senior vice president for

construction development. (Tr. 11.) Mr. McCarthy has a

bachelor's of science degree in civil engineering, from the

University of South Florid a, and a master's degree in business

administration from the University of Miami. He has about 22

years' worth of experience in real estate development,

approximately 15 years working with CDD's for various employers

and about four years working as a cons ultant and civil engineer.

(Tr. 12.) Mr. McCarthy was one of the members of the

development team for the overall project and he is also the

person within the Ginn Organization who is responsible for

forming community development districts and managing th eir

ongoing operations. Mr. McCarthy testified that 100 percent of

the landowners consented to the establishment of the proposed

CDD and that the proposed CDD will consist of approximately

1,804 to 1,805 acres. (Tr. 13.) Mr. McCarthy also testified as

t o the accuracy of the legal description for the proposed CDD.

(Tr. 14.)

17. Mr. McCarthy stated that the land with the proposed

CDD will be subdivided to single family lots, varying in size

from quarter - acre lots up to two acres in size, and the

devel opment is currently planned for 785 lots with a maximum

density approval of 868 residential units or residential lots.

Mr. McCarthy stated that this equates to a maximum per person

density of one per 2.08 acres on the gross acreage.

(Tr. 16 - 18.)

18. Mr. McCarthy also testified that an 18 - hole golf

course with clubhouse and restaurant, swimming facilities,

community boat ramps, horseback riding facilities, playgrounds

and play fields are planned for the development. Id.

19. Mr. McCarthy testif ied that all proposed uses are

allowed by the Lake county comprehensive plan and land use plan

and the State comprehensive plan. Id.

20. Mr. McCarthy stated that the Ginn Company anticipates

using the proposed CDD as a method of financing, and also for

the perpetual operation of maintenance of the facilities that

the district constructs. This project in particular requires a

water treatment plan facility and a wastewater treatment plant

facility; the Ginn Company has found that simply constructing

thos e types of facilities and turning them over to the

homeowner's association for ongoing maintenance is not the best

thing to do. Using the CDD as a method of putting a structured

management system in place for the ongoing operation of

maintenance of those facilities has been found to be a much

better system. Id. Mr. McCarthy also testified that Lake

County has no water or wastewater facilities available to

service this development (Tr. 17.)

21. Mr. McCarthy testified that the initial board of

superviso rs will consist of Kyle Myers, Wade Smith, Thomas

Britt, Jim Cooper, and himself (Thomas McCarthy). Mr. McCarthy

testified that construction is estimated to take three years to

complete and that the estimated regulatory costs statement

included in the Pet ition is true and accurate. (Tr. 18.)

Mr. McCarthy stated that all allegations in the Petition are

true and accurate and that the proposed CDD is seeking powers

normally granted to CDDs under Chapter 190, Florida Statutes, as

well as the special powers a vailable to a CDD. (Tr. 18.)

22. The next witness for the Petitioner was Geoffrey

Summitt. Mr. Summitt is employed by Miller Einhouse Rymer &

Boyd as a civil engineer, where he serves as "project

engineer/project manager" for land development projects. He is

currently licensed as a professional engineer in the State of

Florida. Mr. Summitt's firm has experience with CDDs and

currently serves as the district engineer for Harmony CDD and

Reunion East and Reunion West CDD. Mr. Summitt testified that

he is familiar with the proposed CDD, as he is the project

engineer and project manager. Mr. Summitt stated that the

proposed CDD will build all the infrastructure, roads, drainage,

water distribution, and wastewater collection systems necessary

for the prop osed project. Mr. Summitt testified that the CDD

provides the best alternative for capital financing, as well as

overall management of the facilities after construction is

completed. (Tr. 23 - 28.)

23. Mr. Summitt testified that the proposed uses are

con sistent with the Lake County Plan and the State Comprehensive

Plan and further, that the Pine Island project was permitted in

two halves, Pine Island One and Pine Island Two. The Pine

Island I PUD has been completely approved through Lake County

and all r equired governmental agencies, and the Pine Island II

PUD has been approved by all agencies with the exception of Lake

County, where it is currently awaiting final stamping approval

for construction plans. Mr. Summitt testified that he concurs

with the St atement of Regulatory Costs attached to the Petition

and all the allegations of the Petition are true and accurate.

Id. Mr. Summitt further testified that the CDD is the best

alternative for providing community development services and

facilities to the land involved and that the area that will be

served by the proposed CDD is amendable to a separate special

district government. (Tr. 28.)

24. Petitioner introduced several documents which were

accepted into evidence:

Exhibit 1

Notice from the Orlando S entinel newspaper,

providing evidence that they published a

public hearing notice for this hearing on

November 13, 20, 27, and December 4, 2003 in

a section of the newspaper that was not the

legal notice section. (Tr. 4.)

Exhibit 2

Statement from Jimmy Don Crawford, a

representative of the Gray Robinson law firm

indicating the proposed CDD can be legally

developed, and that it will not be

inconsistent with applicable permits, plans,

orders and agreements, nor will it be

inconsistent with the capacity and use of

the existing or planned services and

facilities. (Tr. 5.)

Exhibit 3

Statement from Brett Sealy, a representative

of Prager, Sealy & Company, indicating that

it is his opinion that using a community

development district to finance the

infrastruct ure improvements is an efficient

and advisable option that he would recommend

to the county and to the State. It is

further his opinion that the utilization of

the community development district for

providing the infrastructure for this

proposed developme nt is an efficient and

appropriate financing strategy. (Tr. 6.)

Exhibit 4

Statement of Gary Moyer, the proposed

manager of the Pine Island Community

Development District. He has reviewed the

petition with exhibits including the

statement of estimated regulatory costs.

Based upon his review of the petition, and

based upon his experience, it is his opinion

that creating the proposed district is the

best available alternative for delivering

the infrastructure to the area proposed to

be included in the di strict. He is also of

the opinion that the district is of

sufficient size, is sufficiently compact,

and sufficiently contiguous to be developed

as a community developed district. He is

also of the opinion that the area to be

served by the proposed distri ct is amendable

to separate special districts of government.

(Tr. 7.)

Exhibit 5

Statement of Jan Albanese Carpenter, an

attorney with Allen, Lang, Carpenter & Peed,

P.A., attaching copies of the letters that

were sent to the county and sent to the

adjac ent cities asking if they wanted to

hold local hearings, and then their

responses saying that they were not going to

hold any hearings. (Tr. 8.)

Exhibit 6

Statement of Geoffrey Summitt of Miller

Einhouse Rymer & Boyd. He is of the opinion

that the comm unity development district as

proposed can be legally developed, and that

it will not be inconsistent with any of the

aforementioned permits, plans, orders, and

agreements, nor will it be inconsistent with

the capacity and use of existing or planned

servic es and facilities. He is further of

the opinion that the proposed district is of

sufficient size and is sufficiently

contiguous to allow the development as

planned. He is further of the opinion that

the proposed district can be utilized for

the purposes recited in the petition, and

that utilizing the projected proceeds of the

described bonds and bond anticipation notes,

the planned infrastructure can be

constructed.

Exhibit 7

Legal Description of the proposed CDD.

25. The last witness was a member of the public,

Mr. Donald Duncan of 16208 County Road 455, Montverde, Florida

34756. He requested that he be given notice of any hearings

relating to the development. He stated that he liked the

proposed CDD project and that it means "a great deal to o ur

neighborhood." (Tr. 30.)

APPLICABLE LAW

A. General

26. 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 in

granting a peti tion for the establishment of a CDD. (Section

190.005(2) 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.)

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

the 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 exclu ded 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.

28. Section 190.00 5(1)(a), Florida Statutes, also requires

that the petition propose a timetable for construction and an

estimate of construction costs. The petition must designate

future general distribution, location, and extent of public and

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

appropriate general purpose local government. The petition must

contain a Statement of Estimated Regulatory Costs.

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

the petitioner pay a filing fee of $15,000 to th e 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.

30. 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 P etition. No such public hearing was held on

the Petition in this case.

31. 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 writt en

comments on the petition pertinent to the factors specified in

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

petitioner publish notice of the local public hearing once a

week for four successive weeks immediately prior to the hearing.

B. F actors by Law to be Considered for Granting or

Denying Petition

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

FLWAC consider the entire record of the local hearing, the

transcript of the hearing, any resolutions adopted by local

genera l - 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 bee n 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 suf ficiently compact, and is sufficiently

contiguous to be developable as one functional interrelated

community.

4. Whether the district is the best alternative

available for delivering community development services and

facilities to the area that will be served by the district.

5. Whether the community development services and

facilities 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 tha t will be served by the

district is amenable to separate special - district government.

COMPARISON OF INFORMATION IN RECORD TO APPLICABLE LAW

A. Procedural Requirements

33. The evidence was that Petitioner satisfied the

procedural requirements for the es tablishment of a CDD on the

proposed property 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

34. The evidence was that the statements in the Petition

and its attachments are true and correct.

35. The evidence was that establishment of the proposed

CDD on the proposed property is not inconsistent with the State

and Lake County Comprehensive Plans.

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

contiguity of the proposed land area are sufficient for it to be

developed as "one functional interrelated community."

37. The evidence was that the proposed CDD is the best

alt ernative presently available for delivering community

development systems, facilities, and services to the proposed

land area.

38. The evidence was that the services and facilities

provided by the proposed CDD will be compatible with the

capacity and us es of existing local and regional community

development services and facilities.

39. The evidence was that the proposed area to be served

by the proposed CDD is amenable to separate special - district

government.

CONCLUSION

Section 190.005(1)(e), Florida Statutes, states that FLWAC

"shall consider the entire record of the local hearing, the

transcript of the hearing, resolutions adopted by local general -

purpose governments," and the factors listed in that

subparagraph. Based on the record evidence, the Pe tition

appears to meet all statutory requirements, and there appears to

be no reason not to grant the Petition and establish the

proposed Pine Island Community Development District by rule.

For purposes of drafting such a rule, a metes and bounds

descript ion of the proposed Pine Island CDD may be found both in

Petition Exhibit 2 and in Hearing Exhibit 7; and the five

persons designated to serve as the initial members of the Board

of Supervisors of the Pine Island CDD are identified both in

paragraph 3 of t he Petition and in paragraph 4 of the Summary of

Record, supra .

DONE AND ENTERED this 22nd day of January, 2004, in

Tallahassee, Leon County, Florida.

S

J. LAWRENCE JOHNSTON

Administrative Law Judge

Division of Adminis trative 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 22nd day of J anuary, 2004.

ENDNOTE

1/ Section 190.005(1)(d), Florida Statutes, provides that the

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

with the applicable requirements and procedures of the

Administrative Procedure Act." However, this is no t a quasi -

judicial, adversarial proceeding under Sections 120.569 and

120.57, Florida Statutes, for resolution of factual disputes.

Rather, it is a quasi - legislative, information - gathering hearing

that is part of the rulemaking process. Section 120.54(8) ,

Florida Statutes, describes the Rulemaking Record as including:

"(c) A written summary of hearings on the proposed rule." For

these reasons, a recommended order with findings of fact and

conclusions of law is not appropriate. Instead, the ALJ files a

report which constitutes the hearing summary portion of the

rulemaking record under Section 120.54(8)(c), Florida Statutes.

COPIES FURNISHED :

Michael P. Hansen, Secretary

Florida Land and Water Adjudicatory Commission,

The Capitol, Room 2105

Tallaha ssee, Florida 32399 - 0001

Barbara Leighty, Clerk

Growth Management and Strategic Planning

The Capitol, Room 2105

Tallahassee, Florida 32399 - 0001

Raquel Rodriguez, General Counsel

Office of the Governor

The Capitol, Room 209

Tallahassee, Florida 32399 - 1 001

Thomas F. Lang, Esquire

Allen, Lang, Carpenter & Reed, P.A.

14 East Washington Street, Suite 600

Orlando, Florida 32801

Heidi Hughes, General Counsel

Department of Community Affairs

2555 Shumard Oak Boulevard, Room 325

Tallahassee, Florida 32399 - 21 00