04-000106 In Re: Petition For Rule Creation - Tern Bay Community Development District vs. * Status: Closed Recommended Order on Thursday, April 22, 2004.

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: PETITION FOR RULE )

CREATION - TERN BAY COMMUNITY ) Case No. 04 - 0106

DEVELOPMENT DISTRICT )

_____________________________)

ADMINISTRATIVE LAW JUDGE’S REPORT TO

THE FLORIDA LAND AND WATER ADJUDICATORY COMMISSION

On March 24, 2004, a local public hearing under Section

190.005(1)(d), Florida Statutes (2003), was conducted in Punta

Gorda, Florida, by Charles A. Stampelos, Administrative Law

Judge (ALJ) of the Division of Administrative Hearing (DOAH).

APPEARANCES

For Petitioner: Pamela D. Keller, Esquire

Geri L. Waksler, Esquire

Moore and Waksler, P.L.

1107 West Marion Avenue, Suite 112

Punta Gorda, Florida 33950

STATEMENT OF THE ISSUE

The issue before the Florida Land and Water Adjudicatory

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

Petition to Establish the Tern Bay Community Development

District (Petition), d ated December 18, 2003. The local

public hearing was conducted for the purpose of gathering

information in anticipation of rulemaking by FLWAC.

PRELIMINARY STATEMENT

The Petition was filed by Tern Bay Development Co., LLC

(Petitioner), on December 18, 200 3. Petitioner requested that

FLWAC adopt a rule to establish a uniform Community

Development District (CDD), to be called the Tern Bay

Community Development District, on certain property located in

Charlotte County, Florida. The Petition included 10 exhi bits.

FLWAC referred the Petition to DOAH on January 12, 2004,

for assignment of an ALJ to conduct a local public hearing

under Section 190.005(1)(d), Florida Statutes (2003). The

local public hearing before the ALJ was scheduled and was held

at 9:00 a.m. on March 24, 2004, in the Charlotte County

Justice Center, Court Room 4C, 350 East Marion Avenue, Punta

Gorda, Charlotte County, Florida.

At the local public hearing, Petitioner presented the

testimony of David Nash, president of IME Group, Inc., of

Pun ta Gorda, Florida; John H. McKay, of Rizzetta & Company,

Inc., of Tampa, Florida; Dana Gourley, of Dana Gourley, AICP,

of Punta Gorda, Florida; and Joseph S. Menen, P.E./P.S.M.,

president of Charlotte Engineering and Surveying, Inc., of

Punta Gorda, Florid a. Petitioner also introduced 17 exhibits,

designated Exhibits 1 through 17, which are described in

paragraph 64 of the Summary of the Record, infra .

The Transcript of the local public hearing was filed on

April 12, 2004. Petitioner filed a Proposed Adm inistrative

Law Judge’s Report to FLWAC, which has been considered in the

preparation of this Report. Throughout this Report, the term

CDD refers to a Community Development District, Petitioner

refers to Tern Bay Development Co., LLC, “Petition Exhibit”

r efers to the specified exhibits attached to and filed with

the Petition and “Petitioner’s Exhibit” refers to those

documents offered and admitted into evidence at the public

hearing conducted in March 24, 2004.

SUMMARY OF THE RECORD

A. Petition and Relat ed Matters

1. The Petition was submitted to FLWAC, and Charlotte

County, Florida.

2. The Petition alleges that the land proposed to be

included within the District is located in unincorporated

Charlotte County, Florida. The proposed District covers

appr oximately 1,778 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

located within the external boundaries of the District that is

excluded from the Dist rict. Petition Exhibit 3 is the CDD

Boundary.

3. Petition Exhibit 4 incorporates the written consents

to the establishment of the District by the owners of 100

percent of the real property to be included within the

District. Lands to be included within the District are owned

entirely by Tern Bay Development, Co., LLC, but for 40 acres

which are owned by John DiGiacomo, Trustee, who has consented

to the inclusion of same within the proposed District.

4. The Petition states that the name of the proposed

D istrict will be the Tern Bay Community Development District.

5. The Petition identifies the following names and

addresses of those individuals designated as the five (5)

initial members of the Board of Supervisors of the District:

Name Address

John Reisman The Jack Parker Corporation

9001 Daniels Parkway, Suite 200

Fort Myers, Florida 33912

Ken Weiner The Weiner Companies

1642 Medical Lane, Suite B

Fort Myers, Florida 33907

David Knizner The Jack Parker Corporation

9001 Daniels Parkw ay, Suite 200

Fort Myers, Florida 33912

Maureen Nash 3485 Anglin Drive, Suite A

Sarasota, Florida 34242

Dana Gourley Post Office Box 20563

Sarasota, Florida 34276

6. Petition Exhibit 5 depicts the future general

distribution, location, and extent of the public and private

land uses within the District as well as existing land uses

abutting the District. The Petition alleges that the lands

within the District are located in the unincorporated area of

Charlotte County. The Petition further alleges th at lands

within the District are currently designated Mixed Use

Development of Regional Impact (DRI) on the Charlotte County

Future Land Use Map.

7. The Petition alleges that there are currently no

major trunk water mains, sewer interceptors, and/or outfa lls

located in the area within the District. The major trunk

water lines and sewer interceptors, as well as the waste water

treatment plant, adjacent to the lands within the proposed

District are illustrated in Petition Exhibit 7.

8. Petition Exhibit 8 a lleges that the infrastructure

improvements will ultimately be owned by both Charlotte County

and the District. Maintenance and operation responsibilities

will also be shared by the District and Charlotte County or,

in some cases, be the sole responsibili ty of either Charlotte

County or the District.

9. The types of facilities and services to be

constructed are set out in Exhibit 9. The proposed timetable

for the construction of District services and facilities, and

the estimated costs of constructing th e proposed facilities

and services are based upon currently available data. This

information is alleged to be a good faith estimate, but it is

not binding on Petitioner or the District and is subject to

change.

10. The Petition alleges and incorporates i n its Exhibit

10 a Statement of Estimated Regulatory Costs (SERC) prepared

in accordance with the requirements of Section 120.541,

Florida Statutes (2003).

11. The Petition alleges that Petitioner submitted a

copy of the Petition with Exhibits to Charlot te County with

the required filing fee of $15,000, in accordance with Section

190.005(1)(b)1, Florida Statutes (2003).

12. The Petition alleges that establishment of the

District should be granted for the following reasons:

a. Establishment of the Distri ct and all

land uses and services planned within the

proposed District are not inconsistent with

applicable elements and portions of the

effective state comprehensive plan or the

local comprehensive plan.

b. The area of land within the proposed

District is an approved Development of

Regional Impact. It is of sufficient size

and is sufficiently compact and contiguous

to be developed as one functional and

interrelated community.

c. Establishment of the District will

prevent the general body of taxpayers in

Charlotte County from bearing the burden

for installation of the infrastructure and

the maintenance of certain facilities

within the development encompassed by the

District. The District is the best

alternative for delivering community

development ser vices and facilities to the

proposed community without imposing an

additional burden on the general population

of the local general - purpose government.

Establishment of the District in

conjunction with a comprehensively planned

community, as proposed, all ows for a more

efficient use of resources.

d. The community development services and

facilities of the District will not be

incompatible with the capacity and use of

existing local and regional community

development services and facilities. In

addition, establishment of the District

will provide a perpetual entity capable of

making reasonable provisions for the

operation and maintenance of District

services and facilities.

e. The area to be served by the proposed

District is amenable to separate specia l -

District government.

B. Additional Information from Local Public Hearing

13. The local public hearing on the Petition was noticed

and held on March 24, 2004, in the Charlotte County Justice

Center, Courtroom 4C, 350 East Marion Avenue, Punta Gorda,

Florida, an accessible location in Punta Gorda, Charlotte

County, Florida. Pursuant to Section 190.005(1)(d), Florida

Statutes (2003), notice of the public hearing was advertised

on February 25, on March 3, 10, and 17, 2004, in the Charlotte

Sun, a newspa per of general paid circulation in Charlotte

County, and of general interest and readership in the

community, not one of limited subject matter, in accordance

with Chapter 50, Florida Statutes (2003). The published

notices provided the time and place for the hearing, a

description of the area to be included within the District,

including a map showing the land to be included within the

District, and other relevant information. The advertisement

was published as a display advertisement, not in the portion

of the newspaper where legal notices and classified

advertisements appear.

14. The hearing was also noticed in the Florida

Administrative Weekly , Volume 30, Number 10, March 5, 2004.

15. The hearing commenced at 9:00 a.m., the time

advertised in the pub lished notice. Counsel for Petitioner

made appearances. Four witnesses were presented on behalf of

Petitioner. Several members of the public were present and

questioned Petitioner's witnesses. Two members of the public

offered sworn testimony.

16. Th e first witness for the Petitioner was Mr. David

Nash. Mr. Nash is employed as President and Treasurer of IME

Group, Inc., a company involved in the development of real

property in the State of Florida.

17. Mr. Nash identified the Petition and the exhib its

thereto and confirmed that the information contained therein

was true and accurate and that there were no changes or

corrections required to same. The Petition and exhibits were

admitted into evidence as Petitioner’s Exhibit 1.

18. Mr. Nash affirmed his filing of written testimony

prior to the hearing and testified that there were no changes,

additions or corrections required. The written testimony of

Mr. Nash and exhibits were admitted into evidence as

Petitioner's Exhibit 2.

19. Mr. Nash testified that the name of the proposed

District is the Tern Bay Community Development District. The

size is approximately 1,778 acres, and the land proposed to

lie within the District is all located within Charlotte

County.

20. Mr. Nash stated that the owners of 100 percent of

the land within the proposed District, i.e. , Tern Bay

Development Co., LLC, as to 1,738 acres, and John DiGiacomo,

Trustee, as to 40 acres, consented to the implementation of a

CDD.

21. Mr. Nash testified that one original and twelve

copie s of the Petition were filed with the FLWAC and that a

copy of the Petition along with the filing fee of $15,000 were

tendered to Charlotte County all in accordance with Section

190.005(1)(b)1, Florida Statutes. According to Mr. Nash,

FLWAC approved the P etition as complete as evidenced by

Petitioner’s Exhibit 6.

22. Mr. Nash testified that a public hearing was

conducted on January 27, 2004, before the Board of County

Commissioners of Charlotte County, Florida, with regard to

this Petition, and in accord ance with Section 190.005(1)(c),

Florida Statutes. The hearing was noticed in the form

provided as Petitioner’s Exhibit 7.

1 0

23. As a result of the public hearing, the Charlotte

County Board of Commissioners unanimously adopted Resolution

No. 2004 - 017 ap proving the plan for the proposed District. A

copy of the Resolution was admitted into evidence as

Petitioner’s Exhibit 8.

24. Mr. Nash further described the additional

proceedings conducted by the County on March 9, 2004, to

consider the Notice of Propo sed Change to the original

Caliente Springs DRI, which, he testified, was renamed the

Tern Bay DRI. By unanimous vote the Charlotte County Board of

Commissioners adopted Resolution No. 2004 - 050 approving the

Notice of Proposed Change as reflected in Petit ioner’s Exhibit

9.

25. With respect to the instant proceedings, Mr. Nash

testified that the hearing was properly noticed pursuant to

S ection 190.005(1)(d), Florida Statutes, in the Charlotte Sun,

a newspaper of general paid circulation, general interest a nd

readership in the community, not one of limited subject matter.

The advertisement was not published as a display advertisement

and was not placed in the portion of the newspaper where the

legal notices or the classified advertisements appear.

Petitione r’s Exhibit 10 affirmed the placement and dates of the

advertisement.

26. The public hearing was noticed in Volume 30, Number

10 of the Florida Administrative Weekly dated March 5, 2004,

as testified to by Mr. Nash and as reflected in Petitioner’s

Exhibit 11.

27. To assist the undersigned and the members of the

public who were present, Mr. Nash referred to Petitioner’s

Exhibit 12, also known as Revised Map H, the Tern Bay Master

Development Plan, which depicts the various and mixed uses

proposed within th e District.

28. Mr. Nash testified that there are no existing

utility facilities that serve the District at the present

time. Mr. Nash testified that presently, the closest utility

service lines to the proposed District are approximately 2.7

miles to t he south and are owned and operated by Charlotte

County Utilities. Mr. Nash further testified that the

proposed District will provide the financing required to

connect the off - site major trunk water mains and sewers and

re - use lines to the proposed Distri ct. Mr. Nash stated that

Petition Exhibit 8 describes the type of facilities that the

Petitioner expects the District to finance, construct, and

install and the proposed timing to complete that endeavor.

Mr. Nash testified that the infrastructure improve ments on

site will be comprised of roads, bridges, sewer collection,

water distribution lines, irrigation, re - use lines,

landscaping to common areas, exercise trails, footways, park

and picnic areas and conservation areas, together with

associated manageme nt programs.

29. Petitioner’s Exhibit 13 reflects continuing

communication between the Petitioner and Charlotte County

Utilities (CCU). Mr. Nash testified that there are adequate

facilities proposed to connect to Charlotte County Utilities

to

service the development and that the process is presently

under review with Charlotte County.

30. Mr. Nash testified that Petition Exhibit 9

represents the estimated costs of construction which were

prepared based on costs derived from a number of historical

pro jects. Mr. Nash testified that the detailed engineering is

now being completed enabling the project engineers to produce

accurate quantities of materials necessary to construct the

facilities for the District. Mr. Nash testified that he was

confident that the exhibit is a fair and accurate estimate of

the costs of construction based upon his development

experience and in accordance with the expertise of the

engineers hired for this project, Charlotte Engineering &

Surveying, Inc.

31. Mr. Nash testified t hat each of the persons

designated in the Petition as the initial Board members are

personally known by him and that they are all residents of the

State of Florida.

32. Mr. Nash testified that the proposed CDD is the best

alternative to provide community development services to the

area to be served within the proposed District because it will

enable the District to effect an orderly transition from the

conventional developer role into a District that has the

financing capabilities that a homeowners' or p roperty

association does not. Mr. Nash also testified that the CDD

also enables the procurement of funds for the provision of

infrastructure both for on - site and off - site facilities in a

way which does not create a burden on the taxpayers at large,

and en sures that uniform maintenance responsibilities will be

carried out in perpetuity.

33. Mr. Nash testified that the owner of the

infrastructure improvements will be the Tern Bay Community

Development District and Charlotte County; that the general

respon sibility for maintenance and operation of the proposed

facilities within the District will be either Tern Bay

Development Community Development District or Charlotte

County; and that the County will be responsible at a later

date for the provision of a lin k to off - site utilities,

however, the costs of same would be paid for by the District.

34. Questions of Mr. Nash from the public, namely from

Marilyn Kaye, Curtis Gehling, and Earl DeWeese, concerned the

road leading to the proposed District, known as B urnt Store

Road. In particular, they were concerned with the existing

traffic congestion and accidents occurring on this road and

future impacts to the road as a result of the CDD.

35. The Petitioner has initiated discussions with

Charlotte County to exam ine the long - term effects of traffic

on Burnt Store Road, and Mr. Nash testified that the

Petitioner will be undertaking its own monitoring of the

roadway segments and the intersections to ensure that

appropriate improvements and rights - of - way continue to serve

the entire community. Mr. Nash offered to meet with the

concerned citizens and disseminate the information gathered in

Tern Bay’s study of this issue to anyone who desires to review

same.

36. The next witness for Petitioner was John H. McKay

(ref erred to in the T ranscript of the proceedings as Don

McKay). Mr. McKay is employed by Rizzetta & Company, Inc. Mr.

McKay testified that his company assisted the Petitioner in

assembling the Petition to establish the CDD, and in preparing

the SERC. Mr. Mc Kay testified that his company provides

services to Petitioners who are seeking to establish community

development districts. In addition, his company provides

management and financial consulting services to existing CDDs.

37. Mr. McKay provided a summar y of his educational and

employment background and his qualifications and credentials.

Based upon Mr. McKay’s background, he was qualified as an

expert witness in the areas of management and financial

consulting.

38. Mr. McKay affirmed his written testim ony and

testified that no corrections or additions were required to

same. He stated that a firm brochure, annexed to his pre -

filed testimony, provided additional information regarding the

type of work he performed for clients such as the Petitioner.

His pre - filed testimony and exhibit were admitted into the

evidence as Petitioner’s Exhibit 3.

39. Mr. McKay testified that his firm prepared Petition

Exhibit 10, the SERC, and he had evaluated the validity of the

proposed District from an economic and manage ment perspective.

Mr. McKay testified that everything in the documents is

accurate and correct.

40. Mr. McKay testified that in his opinion, the

proposed District is of sufficient size, compactness and

contiguity to be developed as a functionally interr elated

community and that the land area in the CDD is well - suited to

the provision of services and facilities. His basis for that

opinion was that the overall site plan and proposed plan of

the development shows the area to be contiguous and compact.

The road systems and all the improvements fit nicely into this

one area. The acreage of the development supports the number

of residential units that are proposed for the District or for

the development. There are no parcels of land that are either

detached or away from the main development area. There are no

enclaves or cutouts within the development that are not part

of the District, and the proposed improvement plan does

support this particular development.

41. Mr. McKay testified that from an economi c

perspective the proposed District is the best alternative to

provide the proposed services and facilities because it will

provide the most effective and efficient management and

maintenance of the proposed services and facilities and will

have the abilit y to assure long - term and low - cost term

financing. In arriving at that opinion, Mr. McKay testified

that from a financing standpoint, it is the best of the

alternatives for financing as compared with private and County

options.

42. Mr. McKay also testif ied within a reasonable degree

of certainty from an economic analysis perspective that the

services and facilities to be provided by the proposed

District will not

be incompatible with the uses and existing local and regional

services and facilities.

43 . Mr. McKay further testified that within a reasonable

degree of certainty from an economic analysis perspective the

area which is to be served by this CDD is amenable to this

special - district form of government.

44. Upon questioning from Ms. Kaye, Mr. McKay testified

that, once the District has been established and has had its

first organizational meeting, the books and records of the

District will be present at the District office. Further, the

cost of bringing the external existing water and sewer l ines

from Charlotte County Utilities into Tern Bay will be paid by

Tern Bay. This concluded the testimony of John McKay.

45. Next to testify was Dana L. Gourley, AICP, a

certified land use planner. She had submitted written

testimony in advance of the h earing which she testified was

accurate and required no correction. Attached to her pre -

filed testimony was an exhibit describing her credentials,

certifications, and degrees. Ms. Gourley's pre - filed

testimony was admitted into evidence as Petitioner’s E xhibit

4. Also, following a description of

Ms. Gourley’s background, education and experience, Ms.

Gourley was accepted as an expert in the field of land use

planning.

46. Ms. Gourley testified that she was retained by the

Petitioner in this matter to provide land use planning

services specifically with regard to the establishment of this

proposed District. In the course of her duties, Ms. Gourley

reviewed the state and local comprehensive plans in order to

assess the potential impact of the District o n the state and

local comprehensive plans for this region.

47. Ms. Gourley testified that in the course of her

duties for the Petitioner, she became familiar with the

Petition, the exhibits thereto, and the DRI for Caliente

Springs that was originally p roposed and accepted in 1992.

She was also involved in the procedure leading to the Notice

of Proposed Change of the Caliente Springs DRI to the Tern Bay

DRI which was unanimously accepted by the Board of County

Commissioners on March 9, 2004, as describe d in Petitioner’s

Exhibit 9.

48. Ms. Gourley gave her opinion, with reasonable

certainty, that the proposed CDD is not incompatible with any

provision of Chapter 187, Florida Statutes, regarding the

state comprehensive plan and, in fact, it is consistent with

the state plan. Additionally, according to Ms. Gourley, the

proposed CDD is consistent with the local Charlotte County

Comprehensive Plan.

49. Ms. Gourley testified that in her opinion the

proposed CDD is of sufficient size, compactness, and

conti guity to develop as a functionally interrelated community

to require some management structure. It is a compact, mixed -

use development.

It is a discrete development adjacent to Burnt Store Road. In

Ms. Gourley’s opinion, the design compliments the area .

50. Further, Ms. Gourley opined that the proposed CDD is

the best alternative to provide the proposed services and

facilities and is amenable to this special form of government.

The CDD provides an opportunity for secured financing for the

needed infr astructure, provides for efficient extension and

service of infrastructure such as utilities, avoids deficiency

and provides some stability and assurance of adequate capacity

for infrastructure and services. The proposed CDD also

provides Sunshine (open g overnment) protection for the

residents, noticed open meetings, and upgraded improvements

that are paid for over time. Ms. Gourley also stated there

would be no duplication of services by Charlotte County

government, and there would not be any additional financial

burden to the taxpayers of Charlotte County.

51. It was Ms. Gourley’s opinion that the services and

facilities to be provided by the proposed CDD will not be

incompatible with the uses and existing local and regional

services and facilities. Ms. Gourley opined that this CDD

will provide a logical and efficient extension of the existing

systems and that the CDD is consistent with the County's long -

term plan for this urban service area. The proposed District

will be compatible within the local and state planning

horizons.

52. Ms. Kaye questioned Ms. Gourley about the dimensions

of the conservation areas and green belt. In response,

Ms. Gourley testified that as depicted on Revised Map H, the

master development plan, "there is a coastal conse rvation area

that would involve 865 acres and it will be conveyed through

the protection of these lands to the CDD and ultimately to the

State of Florida." This completed Ms. Gourley’s testimony.

53. The Petitioner's last witness was Joseph S. Menen,

P.E ./P.S.M., a civil engineer and President of Charlotte

Engineering & Surveying, Inc. Mr. Menen identified his pre -

filed testimony and the exhibit thereto, describing his

business and testified that there was no need for any change

or correction thereto. M r. Menen’s pre - filed testimony was

admitted into evidence as Petitioner’s Exhibit 5.

54. Following a review of Mr. Menen’s background,

education, professional experience, and certifications, Mr.

Menen was accepted as an expert in the field of civil

engi neering, and he provided opinions regarding his experience

and role in the engineering aspects of the Tern Bay CDD.

55. Based upon Mr. Menen’s familiarity with the

geographical locale, the type and scope of this proposed CDD

and the available services an d facilities in the area, and

review of and involvement with the Petition and the exhibits

in this matter, Mr. Menen confirmed that within the land

comprising this District, there are no existing facilities or

services, no major water mains, sewer intercep tors, or

outfalls to serve the proposed residents and businesses.

56. Mr. Menen testified that he was involved in

preparing the estimate of the quantities, i.e. , linear feet

for pipe for storm water, set forth in Petition Exhibit 9.

Through this inform ation, the Petitioner was able to develop

the cost estimate of the infrastructure required for this

development. Mr. Menen agreed that the cost estimates were

reasonable and in line with local industry standards. They

are based on good faith estimates no t intended to bind the

District at this time. Petitioner's Exhibit 17, a copy of the

proposed construction timetable and cost estimates, was

admitted into evidence.

57. Mr. Menen gave his opinion that the proposed CDD is

of sufficient size, compactness , and contiguity to be

developed as a functionally interrelated community regarding

the infrastructure

that will serve this District and that all the land is

contained within one boundary.

58. Mr. Menen further opined that the proposed CDD is

the best alternative to provide these services and facilities

based on his past experience as being the engineer of record

of another CDD, and working on other types of developments in

Florida.

59. Mr. Menen provided his opinion that the services and

facilities p roposed for this CDD will not be incompatible with

the uses and existing local and regional services and

facilities. This opinion was derived from his meetings with

Charlotte County Utilities, his development of preliminary

plans to extend water use, water , and waste water services to

the site.

60. Lastly, Mr. Menen gave his opinion from an

engineering perspective and based upon his experience, that

the area to be served by the proposed CDD is amenable to this

special district form of government due to i ts size, in part,

and the facilities and services and infrastructure to be

provided, as well as the ease of financing arrangements that

are going to be undertaken.

61. Upon questioning from Ms. Kaye, Mr. Menen testified

that with the assistance of Charlo tte County Utilities, the

issue of impact upon water and sewer services currently being

provided to other nearby properties is being examined to

ensure that other members of the public will not be adversely

affected by the provision of such services within the Tern Bay

CDD. Ms. Waksler, counsel for Petitioner, with the permission

of the undersigned, elaborated that the CDD allows the

Petitioner to procure the financing to implement the

infrastructure, following appropriate local and state review

and approv al.

62. Following the presentation by the Petitioner,

members of the public offered sworn testimony. Harold DeWeese

testified that he had nothing against the development.

However, he felt that it was the wrong time to implement the

plan due to his per ception that Charlotte County had been

dragging their feet on the Burnt Store Road improvements. He

was concerned about the amount of additional traffic the

proposed District would provide given the additional residents

and businesses which are planned. I t was his personal desire

that the implementation of the proposed District be delayed

until Charlotte County proves to the other residents along the

road that it will make Burnt Store Road a four - lane highway

"to help defer the traffic that is on there now ."

63. Ms. Kaye, who previously inquired of several

witnesses, testified that the population residing along Burnt

Store Road is elderly. She does not want to see another death

or another person hurtucks speed by. She expressed her

support of Mr. De Weese's concerns about Burnt Store Road. She

also requested that the Petitioner consider constructing the

entrances into Tern Bay to run the full length of its road

frontage (8,000 feet) along Burnt Store Road. Further, she

requested that someone take in to consideration the paving of

Zemel Road to provide an alternate route for trucks going in

and out of Tern Bay so as to alleviate the traffic on Burnt

Store Road.

64. Petitioner introduced several documents which were

admitted into evidence. They were as follows:

1. Petition to Establish the Tern Bay

Community Development District and exhibits

thereto;

2. Pre - filed Testimony of David Nash and

exhibits;

3. Pre - filed Expert Testimony of John H.

McKay of Rizzetta and Company and exhibits;

4. Pre - fi led Expert Testimony of Dana L.

Gourley and exhibits;

5. Pre - filed Expert Testimony of Joseph S.

Menen, P.E./P.S.M. and exhibits;

6. Florida Land and Water Adjudicatory

Commission correspondence dated January 12,

2004 re: Petition for Rule Creation - T ern

Bay Community Development District (FLWAC

Case No. CDD - 03 - 022);

7. Charlotte County Board of County

Commissioners Agenda Item Summary and

Notice to Set Public Hearing for January

27, 2004 at 10:00 a.m.;

8. Charlotte County Resolution 2004 - 017

date d January 27, 2004;

9. Charlotte County Resolution 2004 - 050

dated March 9, 2004;

10. March 17, 2004, Proof of Publication

of March 24, 2004 Public Hearing -

Charlotte Sun - a local newspaper;

11. Proof of Publication of March 24, 2004

Public Hearing - Florida Administrative

Weekly , Volume 30, Number 10, March 10,

2004;

12. Revised Map H - Tern Bay Country Club

Resort Land Uses;

13. Correspondence from IME Group, Inc.,

dated November 5, 2003, addressed to

Charlotte County Utilities and response

from Charlotte County Utilities dated

November 17, 2003 to IME Group, Inc.;

14. Statement of Estimated Regulatory

Costs for Tern Bay Community Development

District

prepared by Rizzetta & Company, Inc.

December 9, 2003;

15. Notice of Final Agency Action f or

Approval by the Southwest Florida Water

Management District for Permit No.

43026119.000, Tern Bay Resort;

16. Notice of Final Agency Action for

Approval by the Southwest Florida Water

Management District for Permit No.

43026119.001, Tern Bay Resort Phase 1;

17. Tern Bay Community Development

District - Proposed Construction Timetable

and Costs Estimates.

APPLICABLE LAW

A. General

65. Section 190.005(1), Florida Statutes (2003),

provides that the sole means of establishing a CDD of 1,000 or

mor e shall be by rule adopted by the FLWAC, in granting a

petition for the establishment of a CDD.

66. Section 190.005(1)(a), Florida Statutes (2003),

requires that the petition be filed with FLWAC and submitted

to the applicable local government entity. Th e petition must

provide a metes and bounds legal description of the boundaries

of the District with a specific description of real property

to be excluded from the District, if any. The petition must

set forth that petitioner has received the written cons ent of

the owners of 100 percent of the real property proposed to be

included within the CDD. The petition must designate the name

of the CDD and the names of the five initial members of the

board of supervisors. The petition must include a map showing

c urrent major trunk water mains and sewer interceptors and

outfalls, if any.

67. The petition must also contain the proposed

timetable for construction of the District services including

a good faith estimate of the costs of construction. §

190.005(1)(a) 6., Fla. Stat. (2003). The petition must

designate the future general distribution, location, and

extent of public and private uses of the land for the lands

within the District by the future land use plan element of the

local comprehensive plan and inclu de a SERC prepared in

compliance with Section 120.541, Florida Statutes (2003).

68. Section 190.005(1)(b)1., Florida Statutes (2003),

requires that petitioner serve a copy of the establishment

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

to each municipality whose proposed boundary is within or

contiguous to the CDD.

69. Section 190.005(1)(c), Florida Statutes (2003),

permits the general purpose local governments described in the

preceding paragraph to conduct a public hearing on the

pet ition. These local government entities may then present

resolutions to the FLWAC either supporting or objecting to the

establishment of a CDD on the property identified in the

petition.

70. Section 190.005(1)(d), Florida Statutes,(2003),

requires an ALJ to conduct a local public hearing pursuant to

Chapter 120, Florida Statutes (2003). The hearing “shall

include oral and written comments on the petition pertinent to

the factors specified in paragraph (e)” therein. See In Re:

Petition for Rule Creation - Pine Island Community Development

District , Case No. 03 - 3892, 2004 WL 112814, at *8 n.1 (DOAH

Jan. 22, 2004).

71. Section 190.005(1)(d), Florida Statutes (2003), also

requires the petitioner to publish notice of the local public

hearing once a week for f our successive weeks immediately

prior to the hearing.

B. Factors by Law to be Considered for Granting or

Denying Petition

72. Pursuant to Section 190.005(1)(e), Florida Statutes

(2003), the FLWAC must consider the entire record of the local

h earing, the transcript of the hearing, any resolutions

adopted by local general - purpose governments as provided in

subparagraph (1)(e), and the following factors to make a

determination to grant or deny a petition for establishment of

a CDD:

1. Whether a ll 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 or portion of the state

comprehensive plan or of the effective

local government c omprehensive plan;

3. Whether the area of land within the

proposed district is of sufficient size, is

sufficiently compact, and is sufficiently

contiguous to be developable as one

functional interrelated community;

4. Whether the district is the best

alternative available 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 to be provided by

the district will be compatible with the

ca pacity 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 RECORD TO APPLICABL E LAW

A. Procedural Requirements

73. The evidence was that Petitioner satisfied the

procedural requirements for the establishment of the District

on the proposed property by filing the Petition in the proper

form and with the required attachments, paying the applicable

filing fee, and publishing statutory notice of the local

public hearing.

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

Statutes

(2003)

74. The evidence was that the statements in the Petition

and its attachments are true and corr ect.

75. The evidence was that establishment of the District

on the proposed property is not inconsistent with the State

and the Charlotte County Comprehensive Plans.

76. The evidence was that the area of land within the

proposed District is of sufficien t size, is sufficiently

compact, and is sufficiently contiguous to be developable as

one functionally interrelated community.

77. The evidence was that the District is the best

alternative available for delivering community development

services and facili ties to the area that will be served by the

District.

78. The evidence was that the services and facilities

provided by the District will be compatible with the capacity

and uses of existing local and regional community development

services and facilities .

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

by the District is amenable to separate special - District

government.

CONCLUSION

Section 190.005(1)(e), Florida Statutes (2003), states

that the 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 upon the record evidence, the

Petition appears to meet all statutory requirements and there

appears to be n o reason not to grant the Petition and

establish the proposed Tern Bay Community D evelopment District

by rule. For purposes of drafting such a rule, a metes and

bounds description of the proposed Tern Bay Community

development District can be found as Pet ition Exhibit 2.

Also, the five persons designated to serve as the initial

members of the Board of Supervisors of the Tern Bay Community

D evelopment District are identified in Finding of Fact 5 and

paragraph 5 of the Petition.

DONE AND ENTERED this 22nd d ay of April, 2004, in

Tallahassee, Leon County, Florida.

S

CHARLES A. STAMPELOS

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 22nd day of April, 2004.

COPIES FURNISHED:

Michael P. Hansen, Secretary

Florida Land and Water Adjudicatory Commission

The Capitol, Room 2105

Tallahassee, Florida 32399 - 0001

Barbara Leighty, Clerk

Growth Management and Strategic Planning

The Capitol, Room 2105

Tallahassee, Florida 32399 - 0001

Raquel A. Rodriguez, General Counsel

Office of the Governor

The Capitol, Room 209

Tallahassee, F lorida 32399 - 0001

Heidi Hughes, General Counsel

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399 - 2100

Geri L. Waksler, Esquire

Pamela D. Keller, Esquire

Moore and Waksler, P.L.

1107 West Marion Avenue, Suite 112

Pun ta Gorda, Florida 33950