04-001042 In Re: Petition For Rule Creation - Tesoro Community Development District vs. * Status: Closed Recommended Order on Tuesday, July 13, 2004.

Summary: The Petition to create a Community Development District (CDD) is primarily to operate and maintain stormwater management and wetlands mitigation facilities. While other services and facilities were provided by other resources, the CDD appears appropriate.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: PETITION FOR RULE )

CREATION - TESORO COMMUNITY ) Case No. 04 - 1042

DEVELOPMENT DISTRICT. )

)

ADMINISTRATIVE LAW JUDGE'S REPORT TO

THE FLORIDA LAND AND WA TER ADJUDICATORY COMMISSION

On May 25, 2004, a local public hearing under

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

Port St. Lucie, Florida, by J. Lawrence Johnston, Administrative

Law Judge (ALJ) of the Division of Administrative Hearings

(DOAH).

APPEARANCES

For Petitioner: William G. Capko, Esquire

Lewis, Longman & Walker, P.A.

1700 Palm Beach Lakes Boulevard,

Suite 1000

West Palm Beach, Florida 33401 - 2006

STATEMENT OF TH E ISSUE

The issue before the Florida Land and Water Adjudicatory

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

Petition to Establish the Tesoro Community Development District

(Petition), dated December 22, 2003, as supplemented and

correct ed. The local public hearing was for purposes of

gathering information in anticipation of quasi - legislative

rulemaking by FLWAC. 2

PRELIMINARY STATEMENT

The Petition was filed by Ginn - LA St. Lucie Ltd., LLLP, a

Georgia limited partnership (Petitioner), on December 23, 2003.

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

chartered uniform community development district, to be called

the Tesoro Community Development District (District or CDD), on

certain property in the City of Port St. Lucie, which is located

in St. Lucie County, Florida.

FLWAC reviewed the Petition and issued a Notice of

Insufficiency and Request for Additional Information (NOIRAI).

On February 26, 2004, Petitioner filed a Response to the NOIRAI. 3

On March 19, 2004, the Secretary of FLWAC certified that

the Petition, as supplemented, contained all required elements

and forwarded the Petition and Response to the NOIRAI to DOAH

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

Section 190.005(1)(d), Florida S tatutes.

The local public hearing before the ALJ was scheduled and

was held at 2:00 p.m., on May 25, 2004, in the City Community

Center, Port St. Lucie, St. Lucie County, Florida. On May 21,

2004, Petitioner pre - filed the testimony of its two witnesses:

Doug Miller, Vice - President of Development for the Southern

Region of The Ginn Company; and Richard P. Hans, a provider of

development and CDD management advice and services employed by

Severn Trent Services, Inc. At the local public hearing,

Petitioner presented the testimony of its witnesses and also

introduced and had admitted in evidence five exhibits (Hearing

Exhibits A through E), which are described in paragraphs 1, 2,

14, 16, 18, and 21 of the Summary of Record, infra . No member

of the general p ublic participated, and no other testimony or

evidence was presented.

On June 30, 2004, Petitioner filed the Transcript of the

local public hearing and a Proposed Report to FLWAC, which has

been considered in the preparation of this Report. As used in

t his Report, Hearing Exhibit means an exhibit introduced and

admitted in evidence during the local public hearing, and

Petition Exhibit means an exhibit attached to the Petition.

SUMMARY OF RECORD

A. Petition and Related Matters

1. The Petition (a cop y of which was introduced and

accepted in evidence at the local public hearing as part of

Hearing Exhibit D) alleges that the land for the District is

located entirely within the City of Port St. Lucie in St. Lucie

County, Florida. Petition Exhibit 1 depi cts the location and

describes the metes and bounds of the external boundaries of the

District. The proposed District covers approximately 1,416

acres of land. As shown on Petition Exhibit 1, the only parcels

of real property within the external boundari es of the District

that are excluded from the District are the waters of Blakeslee

Creek and Winters Creek and the right - of - way of Southbend

Boulevard.

2. The Response to NOIRAI (also part of Hearing Exhibit D)

explained Petitioner's belief that Blakesl ee Creek and Winters

Creek are believed by Petitioner to be sovereign state lands

under the control of the Trustees of the Internal Improvement

Trust Fund and that establishment of the proposed CDD would have

no impact on those creeks except for increased protection

through stormwater management and wetland mitigation facilities

to be maintained by the proposed CDD. Petitioner also stated

that Southbend Boulevard was owned by Petitioner, would be

conveyed to the City of Port St. Lucie for use as a public

r oadway, and would not be impacted by the proposed CDD.

3. Petition Exhibit 2 contains a list of the many non -

governmental owners of property within the boundaries of the

proposed District, other than Petitioner, who were said to have

given written cons ent to establishment of the District.

Petition Exhibit 2 also contains representative samples of the

"voluminous" written consents of those property owners to

establishment of the District. Petition Exhibit 2 also includes

an excerpt from the Declaration of Covenants, Restrictions and

Easements for Tesoro, recorded April 9, 2002, which disclosed

the possible establishment of a uniform community development

district under Chapter 190, Florida Statutes, on all or part of

the lands within Tesoro's boundaries (as well as possibly on

lands outside its boundaries).

4. The Response to NOIRAI clarified that the proposed

District does not include any real property owned by a

governmental entity. It also included as Exhibit 1 to the

Response an updated list of l andowners, other than Petitioner,

who have consented to establishment of the proposed CDD, as well

as copies of the executed the written consents for each of those

landowners, as Exhibit 2 to the Response. 4 Exhibit 3 to the

Response was a copy of an excer pt from the Second Amended and

Restated Declaration of Covenants, Restrictions and Easements

for Tesoro, recorded on September 19, 2003, which also disclosed

the possible establishment of a uniform community development

district under Chapter 190, Florida Statutes, on all or part of

the lands within Tesoro's boundaries (as well as possibly on

lands outside its boundaries).

5. The Petition names those designated to be the five

initial members of the Board of Supervisors of the proposed

District -- Michael Sayre, Cindy Ford, Thomas Knowles, Richard

Hohman, and Joseph Butler. The identical address (3228 SW

Martin Downs Boulevard, Suite 5, Palm City, Florida 34990) is

listed for each of them. The Petition states that each is a

resident of the State of Florid a and a citizen of the United

States of America.

6. In the Response to NOIRAI, two changes to the initial

Board of Supervisors were made, so that the five proposed

initial members of the Board of Supervisors became Robert

Kerner, Cindy Ford, Thomas Know les, Richard Hohman, and Todd

White, all with the same address -- 3228 SW Martin Downs

Boulevard, Suite 5, Palm City, Florida 34990. The Response did

not specify the residency and citizenship of the two new

members.

7. The Petition states that the name of the proposed

District will be the "Tesoro Community Development District."

8. The Petition states that the future general

distribution, location, and extent of the public and private

land uses proposed with the District, as well as the existing

major trunk water mains and sewer interceptors in the area of

the proposed District, are shown on Petition Exhibit 3, which

consists of a drawing of Tesoro CDD's Master Drainage and

Utilities, dated September 22, 2003. Petition Exhibit 4 is a

drawing of Tesoro CDD's Surface Water Management and Utility

Plan, dated August 28, 2003.

9. The Petition alleges that Petitioner "presently intends

for the District to participate in the provision of certain

infrastructure improvements limited primarily to stormwater

management and wetlands mitigation." (Paragraph 8) However, it

states: "The Petitioner is funding the initial capital costs of

these facilities, which are estimated to total $4,000,000.

Construction of these improvements is underway with completion

est imated in late 2004. Upon completion, the District will

maintain the stormwater management system and wetland mitigation

facilities." ( Id. ) The Petition states that actual

construction timetables and expenditures will likely vary, due

in part to the eff ects of future changes in the economic and

market conditions.

10. The Petition alleges that, prior to filing with FLWAC,

copies were sent to the City of Port St. Lucie and to St. Lucie

County, along with the proffer of a filing fee of $15,000 to

each o f those local governments.

11. The Petition alleges that its Exhibit 5 is a Statement

of Estimated Regulatory Costs (SERC) prepared in accordance with

the requirements of Section 120.541, Florida Statutes. The SERC

reports that the proposed District i s to provide for the

operation and maintenance and the ownership of stormwater

management and wetlands mitigation facilities for an ongoing

development within its boundaries, with the initial funding for

those facilities -- approximately $4 million -- to be pr ovided by

the developer. Costs to various state entities are said to be

"the marginal cost of processing one additional set of reports,"

"inconsequential," and offset by the annual fee to the

Department of Community Affairs required under Section 189.412,

Florida Statutes. Costs to the City of Port St. Lucie related

to the establishment of the proposed District are said to be

"modest" for several reasons and offset by the filing fee

required under Section 190.005(1), Florida Statutes. Annual

costs to the City for receiving and reviewing various required

reports are said to be "very small" or "minimal."

12. The Petition alleges that it should be granted

according to the factors listed in Section 190.005(1)(e),

Florida Statutes.

B. Additional Informa tion from Local Public Hearing

13. On May 7, 2004, FLWAC published a Notice of Receipt of

Petition in the Florida Administrative Weekly . (Hearing Exhibit

B, Exhibit DM - 4)

14. The local public hearing on the Petition was noticed

for and was held on M ay 25, 2004, in the City Community Center,

Port St. Lucie, St. Lucie County, Florida. The notice was

published in a newspaper of general paid circulation in

St. Lucie County ( The Fort Pierce and Port St. Lucie Tribune )

for four consecutive weeks, on April 30, 2004, May 6, 2004,

May 12, 2004, and May 18, 2004. (Hearing Exhibit A; Transcript,

page 9, lines 20 - 23) 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 clear ly the area to be

covered by the CDD; and other relevant information. The

advertisements were not placed in that portion of the newspaper

where legal notices and classified advertisements appear.

15. At the local public hearing, appearances were made by

counsel for the petitioning CDD. Despite public notice, no

member of the general public attended.

16. Petitioner's first witness, Doug Miller, adopted his

pre - filed testimony, which was introduced and accepted in

evidence as Hearing Exhibit B, with two exceptions.

17. Mr. Miller clarified that the correct answer to

Question 32 of his pre - filed testimony, asking whether the

contents of the Petition and its exhibits were true and correct,

should have been "no." Mr. Miller explained that the Petiti on

incorrectly stated that all proposed land uses within the

District were "subject to the approved Tesoro Development of

Regional Impact Development Orders (the 'DRI')." (Paragraph 6)

Actually, the project is being developed as a planned unit

developmen t (PUD) which is vested and therefore not required to

undergo DRI review; therefore, all proposed land uses within the

District are subject to the Tesoro PUD, not to a DRI.

(Transcript, page 8, lines 4 - 12) Mr. Miller similarly explained

that his pre - file d answer to Question 44, which asked whether he

was familiar with the DRI development orders governing the

Tesoro development, should have been "no," but would have been

"yes," if it had asked whether he was familiar with the PUD

governing the development. (Transcript, page 8, lines 13 - 20)

18. With those two exceptions, the hearing testimony of

Mr. Miller adopted his pre - filed testimony. Petitioner's other

witness, Richard P. Hans, adopted his pre - filed testimony, which

was introduced and accepted in e vidence as Hearing Exhibit E, in

its entirety.

19. Mr. Miller's adopted pre - filed testimony was that each

of the initial members of the Board of Supervisors of the

proposed CDD listed in the Response to NOIRAI is a resident of

the State of Florida and a citizen of the United States of

America.

20. Mr. Miller's hearing testimony confirmed that the

filing fees proffered to the City of Port St. Lucie and to

St. Lucie County have not been accepted. He testified that the

City Manager "recognized the fact that this was going to be

really no overhead expenses for the City." Mr. Miller

understood that, for this reason, both the City and the County

waived the filing fees. (Transcript, page 16 - 17).

21. Mr. Miller's pre - filed testimony explained that

addit ional consents will continue to be obtained as Petitioner

continues to sell lots in the Tesoro development and that

Petitioner will further "supplement the record accordingly if

and when we have any additional closings on lots prior to the

establishment of the proposed District." (Hearing Exhibit B,

page 4, lines 1 - 9) As part of his hearing testimony, Mr. Miller

sponsored Hearing Exhibit C, which further supplemented the

landowner consent information previously provided in the

Petition and in the Response to the NOIRAI by listing subsequent

purchasers who likewise consented to the establishment of the

proposed CDD through the land purchase contracts and closing

process described in the Petition and Response to NOIRAI.

Although Hearing Exhibit C did not in clude copies of the newly -

executed written consents, it would appear that, as a result of

the land purchase contracts and closing process, all owners of

land within the proposed District as of the time of the local

public hearing have given written consent to establishment of

the District.

Factor 1 - Petition True and Correct

22. Mr. Miller's pre - filed testimony was that the Petition

and its exhibits, with the exception of the SERC, were prepared

by him or prepared under his supervision. (Hearing Exhibit B,

page 3, lines 11 - 16) He stated that the Petition and its

exhibits were true and correct to the best of his knowledge.

(Hearing Exhibit B, page 3, line 17, through page 4, line 28)

23. Mr. Hans testified that his associate, Rhonda Archer,

prepared the SERC and that it was true and accurate to the best

of his knowledge. (Hearing Exhibit E, page 3, line 40, through

page 4, line 5)

24. Based on the evidence, the Petition and its exhibits,

as supplemented and corrected, are true and correct.

Facto r 2 - Consistency with Comprehensive Plans

25. Mr. Miller reviewed the proposed District in light of

the requirements of the State Comprehensive Plan (Chapter 187,

Florida Statutes) and the City of Port St. Lucie Comprehensive

Plan and testified that the proposed District is not

inconsistent with any applicable provisions of those plans.

(Hearing Exhibit B, page 8, lines 1 - 34)

26. In addition, the Florida Department of Community

Affairs reviewed the Petition and found that the proposed land

uses within t he District are consistent with the City of Port

St. Lucie Comprehensive Plan. ( Hearing Exhibit B, page 6, lines

18 - 23, and Exhibit DM - 6)

27. Based upon the evidence in the record, the proposed

District will not be inconsistent with any applicable elem ent or

portion of the State Comprehensive Plan or the City of Port St.

Lucie Comprehensive Plan.

Factor 3 - Sufficient Size and Compactness

28. As Mr. Hans testified, the area of land within the

proposed District is of sufficient size, is sufficiently

c ompact, and is sufficiently contiguous to be developable as one

functional interrelated community. (Hearing Exhibit E, page 2,

lines 19 - 28)

Factor 4 - Best Alternative

29. As indicated in the Petition, Petitioner intends for

the District to participate in the provision of only certain

infrastructure improvements, limited primarily to stormwater

management and wetlands mitigation. (Hearing Exhibit B, page 7,

lines 10 - 12) Petitioner is funding the initial capital costs of

these facilities, which are est imated to total $4,000,000. ( Id.

at lines 7 - 18)

30. Petitioner does not expect that the District will

finance any services or improvements through the issuance of

tax - exempt bonds. ( Id. at lines 19 - 23) Certain facilities

within the proposed District a re being funded by the issuance by

the City of Port St. Lucie of its $49,375,000 Special Assessment

Bonds for the Tesoro Special Assessment District. ( Id. at lines

24 - 26)

31. Ongoing District maintenance and operational

activities are expected to be fu nded by maintenance assessments.

( Id. at lines 27 - 29) Mr. Miller explained that both the South

Florida Water Management District and the United States Army

Corps of Engineers "strongly recommended" the establishment of a

uniform community development dis trict for this purpose "due to

the extensive quantity of created wetlands [40 acres] . . .

constructed on the site and also the significance of the

drainage system [which also "conveys storm water to the City of

Port St. Lucie through it"] to the local are a." ( Id. at page

14, lines 8 - 16)

32. Property owners within the proposed District,

including the current landowners, will be responsible for paying

District assessments. ( Id. at lines 34 - 35) As indicated, it is

not anticipated that the proposed Distri ct will issue general

obligation debt which pledges the full faith and credit of the

proposed District. ( Id. at lines 35 - 37)

33. Mr. Hans testified that in general terms that "the

proposed District is the best alternative available for

providing the pro posed community development services and

facilities to the area served." (Hearing Exhibit E, page 3,

lines 26 - 38) Mr. Miller testified more specifically that the

proposed District is the best alternative to provide these

community development services an d facilities to the area to be

served within the proposed District. (Hearing Exhibit B, page

9, lines 20 - 22) He opined in more general terms that the

proposed District would be more effective than a typical

property owners’ or homeowners’ association att empting to work

with general purpose governments to ensure that necessary public

infrastructure improvements are provided in a timely and

efficient manner. ( Id. ) He then specified that the proposed

District is a long - term, stable, perpetual entity capabl e of

maintaining the stormwater and wetlands mitigation facilities

over the lifetime of the facilities. ( Id. at lines 32 - 34)

Factor 5 - Compatibility with Existing Capacity and Uses

34. Mr. Hans testified that the "proposed community

development servic es and facilities of the proposed District are

not incompatible with the capacity and uses of existing local or

regional community development services and facilities and the

proposed District provides logical, efficient extension of

existing systems into targeted development areas." ( Hearing

Exhibit E, page 2, lines 39 - 43) He opined the reason for this:

" There is no duplication of the proposed District's anticipated

improvements and services. No other entity has planned to

provide the improvements and services contemplated by the

proposed District under the Petition." ( Id. , page 3, lines 1 - 4)

Factor 6 - Amenability to Separate Government

35. Mr. Hans also testified that the area that will be

served by the District is amenable to separate special dis trict

government. ( Id. , page 3, lines 14 - 16) He stated that the

proposed District provides for an efficient mechanism to oversee

the installation and maintenance of capital improvements

necessary for development. ( Id. , page 3, lines 20 - 22) He also

test ified that the proposed District's size, compactness, and

contiguity warrant separate special district government. ( Id. ,

page 3, lines 22 - 24)

APPLICABLE LAW

A. General

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

the sole means for establ ishing a community development district

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

granting a petition 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 i n which the proposed CDD is to be

situated may establish a CDD under the same requirements

discussed below.)

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

the petition be filed with FLWAC and submitted to the county.

The petition must des cribe by metes and bounds the area to be

serviced by the CDD with a specific description of real property

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

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

of the real property p roposed 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 co ntain a map showing

current major trunk water mains and sewer interceptors and

outfalls, if any.

38. Section 190.005(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 SERC.

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

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

each municipality whose proposed boundaries are within or

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

the petition on those local, genera l - purpose governments.

40. FLWAC has granted petitions for boundary amendments

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

Statutes, where, as in this case, the local government did not

require payment of the $15,000 filing fee required u nder

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

For Rule Amendment - Fiddler's Creek Community Development

District , DOAH Case No. Case No. 02 - 4357, 2003 WL 603380, *13

(DOAH Report February 25, 2003)(Rule adopted September 16,

2003)(Co unty accepted $1,500 as payment in full, waiving any

additional fee, because of the net "wash" of expansions and

contraction acreage and because that amount more than paid for

County staff work in connection with the CDD); In Re Petition to

Contract the Ci rcle Square Woods Community Development District ,

DOAH Case No. 02 - 1118, 2002 WL 1592404, *7 (DOAH Report June

24, 2002)(Rule adopted October 1, 2002)(County waived the filing

fee). It is not believed that a CDD has been initially

established by FLWAC wh ere the required fees were waived.

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

county and each municipality described in the preceding

paragraph to conduct a public hearing on the petition. Such

local, general - purpose governments may then present resolutions

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

proposed in the petition. No such public hearing was held on

the Petition in this case.

42. Section 190.005(1)(d), Florida Statutes, requires that

a DOAH ALJ conduct a loca l public hearing pursuant to Chapter

120, Florida Statutes. The hearing "shall include oral and

written comments on the petition pertinent to the factors

specified in paragraph (e). . . . The petitioner shall cause a

notice of the hearing to be published in a newspaper at least

once a week for the 4 successive weeks immediately prior to the

hearing." § 190.005(1)(d), Fla. Stat.

B. Factors by Law to be Considered for Granting or

Denying Petition

43. Section 190.005(1)(e), Florida Statutes, pro vides that

FLWAC consider the entire record of the local hearing, the

transcript of the hearing, any resolutions adopted by local

general - purpose governments as provided in paragraph (c), and

the following factors and make a determination to grant or deny

a petition for the establishment of a community development

district:

1. Whether all statements contained within the

petition have been found to be true and correct.

2. Whether the establishment of the district is

inconsistent with any applicable eleme nt or portion of the state

comprehensive plan or of the effective local government

comprehensive plan.

3. Whether the area of land within the proposed

district is of sufficient size, is sufficiently compact, and is

sufficiently contiguous to be developab le 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 s ervices and

facilities of the district will be incompatible with the

capacity and uses of existing local and regional community

development services and facilities.

6. Whether the area that will be served by the

district is amenable to separate special - district government.

COMPARISON OF INFORMATION IN RECORD TO APPLICABLE LAW

A. Procedural Requirements

44. The evidence was that the Petition, as supplemented

and corrected, was filed in the proper form and with the

required attachments; that the requir ed $15,000 filing fees were

proffered to the applicable local governments, which waived

them; and that the statutorily - required notice of the local

public hearing was published.

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

45. The evide nce was that the statements in the Petition

and its attachments, as supplemented and corrected, are true and

correct.

46. The evidence was that establishment of the proposed

CDD on the proposed property is not inconsistent with the State

Comprehensive Pla n or the City of Port St. Lucie Comprehensive

Plan.

47. 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."

48. The evidence was that t he proposed CDD is the best

alternative presently available for delivering the community

development systems, facilities, and services proposed for the

land area to be included in the CDD -- i.e. , ownership, operation,

and maintenance of the surface water ma nagement systems and

wetlands mitigation areas. It is not clear from the evidence in

the record that a CDD is the best alternative available for

delivering other community development systems, facilities, and

services for the land area to be included in t he CDD. In this

case, they are being provided through other means.

49. The evidence was that the services and facilities to

be provided by the proposed CDD will be compatible with the

capacity and uses of existing local and regional community

developme nt services and facilities. It is not clear from the

evidence in the record that provision of other services and

facilities, if provided by the proposed CDD, would be compatible

with the capacity and uses of existing local and regional

community developme nt services and facilities.

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

by the proposed CDD is amenable to separate special - district

government. However, in this case, only limited services are to

be provided by the proposed CDD. Nonethe less, Section

190.004(1), Florida Statutes, provides: "This act constitutes

the sole authorization for the future establishment of

independent community development districts which have any of

the specialized functions and powers provided by this act."

( Emphasis added.)

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 liste d in that

subparagraph. Based on the record evidence, as supplemented and

corrected, the Petition appears to meet all statutory

requirements, and there appears to be no compelling reason not

to grant the Petition, as supplemented and corrected, and

establ ish the proposed Tesoro Community Development District by

rule. 5

DONE AND ENTERED this 13th day of July, 2004, in

Tallahassee, Leon County, Florida.

S

J. LAWRENCE JOHNSTON

Administrative Law Judge

Division of Administra tive 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 13th day of Jul y, 2004.

ENDNOTES

1/ All references to Florida Statutes are to the 2003

codification.

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

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

with the ap plicable requirements and procedures of the

Administrative Procedure Act." However, this is not a quasi -

judicial, adversarial proceeding under Sections 120.569 and

120.57, Florida Statutes, for resolution of factual disputes.

Rather, it is a quasi - legisl ative, 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 o rder 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.

3/ The NOIRAI is not in the reco rd, but the Response is.

4/ Exhibit 2 to the Response to NOIRAI indicates that it

consisted of "3 boxes of executed Contracts for Lot Purchase for

each landowner." The record does not reflect that FLWAC

forwarded these boxes to DOAH, and they were not introduced in

evidence during the local public hearing.

5/ For purposes of drafting such a rule, Petitioner's Proposed

Report to FLWAC included Appendix C, consisting of Petitioner's

Text of Proposed Rule.

COPIES FURNISHED :

Michael P. Hansen, Sec retary

Florida Land and Water Adjudicatory Commission,

The Capitol, Room 2105

Tallahassee, Florida 32399 - 0001

Barbara Leighty, Clerk

Growth Management and Strategic Planning

The Capitol, Room 2105

Tallahassee, Florida 32399 - 0001

Raquel Rodriguez, Ge neral Counsel

Office of the Governor

The Capitol, Room 209

Tallahassee, Florida 32399 - 1001

William G. Capko, Esquire

Lewis, Longman & Walker, P.A.

1700 Palm Beach Lakes Boulevard, Suite 1000

West Palm Beach, Florida 33401 - 2006

Heidi Hughes, General Cou nsel

Department of Community Affairs

2555 Shumard Oak Boulevard, Room 325

Tallahassee, Florida 32399 - 2100