04-003639 In Re: Petition For Rule Creation - Lakewood Ranch Community Development District 7 vs. * Status: Closed Recommended Order on Friday, December 17, 2004.

Summary: Petitioner established entitlement to rule creation to establish a new community development district in Manatee County.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: PETITION FOR RULE )

CREATION - LAKEWOOD RANCH )

COMMUNITY DEVELOPMENT ) Case No. 04 - 3639

DISTRICT SEVEN )

______________________________)

ADMINISTRATIVE LAW JUDGE'S REPORT T O THE FLORIDA LAND

AND WATER ADJUDICATORY COMMISSION

Pursuant to notice, a local public hearing was conducted

on Wednesday, November 17, 2004, pursuant to Section

190.005(1)(d), Florida Statutes, in Bradenton, Florida, by

Donald R. Alexander, Administrati ve Law Judge (ALJ) of the

Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Michael C. Eckert, Esquire

Paula M. Sparkman, Esquire

Jonathan T. Johnson, Esquire

Hopping Green & Sams, P .A.

Post Office Box 6526

Tallahassee, Florida 32314 - 6526

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 Lakewood Ranch Community Development

District Seven (Petition). The local public hearing was for

the purpose of gathering information in anticipation of

rulemaking by FLWAC.

PRELIMINARY STATEMENT

The Petition was filed by Schroeder - Manatee Ranch, In c.

(Petitioner) on July 30, 2004. It requested that FLWAC adopt

a rule which creates the Lakewood Ranch Community Development

District Seven in Manatee County, Florida. The Petition

included seven exhibits, identified as Petition Exhibits 1

through 7 and 7A. Petition Exhibit 8A, an executed

Authorization of Agent, was added at the hearing as a final

Petition exhibit.

The FLWAC referred the Petition to DOAH on October 6,

2004, for assignment of an ALJ to conduct a local public

hearing pursuant to Sectio n 190.005(1)(d), Florida Statutes.

The local public hearing was held at 10:00 a.m., on Wednesday,

November 17, 2004, in the Lakewood Ranch Town Hall, 8175

Lakewood Ranch Boulevard, Bradenton, Florida. At the local

public hearing, Petitioner presented the testimony of Thomas

J. Danahy, president of LWR Communities, L.L.C, a subsidiary

of Schroeder - Manatee Ranch, Inc.; John Daugirda, district

manager of Severn Trent Environmental Services, Inc.; Brian C.

Canin, president of Canin & Associates; and Carey Gar land,

director of public finance for Fishkind & Associates.

Petitioner also introduced seven exhibits, designated as

Composite Exhibit A (consisting of Petition Exhibits 1 - 7, 7R,

and 8A), B, C, D, E, F, and G, which are described on pages 3

through 5 of t he Transcript of the Record. All exhibits were

received in evidence. No one from the public appeared at the

hearing. After the public hearing, Petitioner filed a late -

filed exhibit, which substituted the original for a copy of

the Proof of Publication f or the Notice of Public Hearing

(Exhibit B).

The one - volume Transcript of the local public hearing was

filed on November 30, 2004. On the same date, Petitioner

filed a Proposed Report of Findings and Conclusions, which has

been considered in the prepara tion of this Report.

SUMMARY OF RECORD

A. Petition and Related Matters

1. The Petition was submitted to the FLWAC and to

Manatee County.

2. The Petition alleges that the proposed District is

located entirely within Manatee County and contains

approxim ately 1,615.22 acres. Petition Exhibit 1 depicts the

general location of the project. (The project is located east

of Interstate - 75, south of State Road 70, and just north of

the Manatee - Sarasota County Line.) The metes and bounds

description of the ext ernal boundaries of the District is

found in Petition Exhibit 2. The proposed name of the new

District to be established is Lakewood Ranch Community

Development District Seven.

3. The Petition alleges that Petitioner either owns or

has written consent to establish the District from the owners

of 100 percent of the landowners within the District.

Documentation of ownership and consent to the establishment of

a District by 100 percent of the landowners is contained in

Petition Exhibit 3.

4. The existing land uses within and abutting the

proposed District are depicted in Petition Exhibit 4.

Generally, the property is bounded by University Parkway on

the south, religious facilities and Lorraine Road to the west,

agricultural lands to the north, and future residential lands

to the east. The future residential land to the east is

currently zoned agricultural. The lands within the proposed

District are largely undeveloped.

5. The future general distribution, location, and extent

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

proposed District are shown in Petition Exhibit 4. These

proposed land uses are consistent with the effective Manatee

County Comprehensive Plan.

6. The Petition alleges that there are no existing major

trunk water main s and sewer interceptors on the lands located

within the proposed District. Petition Exhibit 5 indicates

the major outfall canals and drainage basins for the lands

within the proposed District.

7. The Petition further alleges that Petitioner intends

fo r the District to participate in the construction of certain

infrastructure improvements. Petition Exhibit 6 describes the

type of facilities Petitioner presently expects the District

to finance, construct, and install from approximately 2004

through 2010 . The estimated costs of construction are also

described in Petition Exhibit 6. Actual construction

timetables and expenditures will likely vary, due in part to

the effects of future changes in the economic conditions upon

costs such as labor, services, materials, interest rates, and

market conditions.

8. The Petition alleges and incorporates within Petition

Exhibit 7 a Statement of Estimated Regulatory Costs (SERC),

which is based upon presently available data. The data and

methodology used in preparin g the SERC are attached to the

SERC.

9. The Petition alleges that Petitioner submitted a copy

of the Petition with the attached exhibits to the County with

the required filing fee for that governmental entity, as

required by the statute.

10. The Petition alleges that the District should be

established for the following reasons:

a. Establishment of the District and all

land uses and services planned within the

proposed District are not inconsistent with

applicable elements or portions of the

effective Sta te Comprehensive Plan or the

local Comprehensive Plan.

b. The area of land within the proposed

District is part of a planned community.

It is of a sufficient size and is

sufficiently compact and contiguous to be

developed as one functional and

interrela ted community.

c. The establishment of the District will

prevent the general body of taxpayers in

the City 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 services and facilities to the

proposed community without imposing an

additional burden on the general population

of the local general - purpose government.

Establishment o f the District in

conjunction with a comprehensively planned

community, as proposed, allows for a more

efficient use of resources.

d. The community development services and

facilities of the District will provide a

perpetual entity capable of making

reas onable provisions for the operation and

maintenance of the District services and

facilities.

e. The area to be served by the proposed

District is amenable to separate special -

district government.

11. The Petition was filed with the Secretary of FLWAC

o n July 30, 2004. Prior to that time, a copy of the Petition

and its attachments, along with the appropriate filing fee,

was provided to Manatee County.

12. Section 190.005(1)(c), Florida Statutes, provides

that the county containing all or a portion of the lands

within a proposed District has the option to hold a public

hearing within forty - five days of the filing of the petition.

Manatee County has elected not to hold such a hearing. At

time of the local public hearing in this case, the County had

pl aced the matter on its consent agenda for approval.

13. On October 5, 2004, the Secretary certified that the

Petition contained all required elements and forwarded it to

DOAH for the purpose of holding a local public hearing

required under Section 190.0 05(1)(d), Florida Statutes. A

copy of the Secretary's correspondence to DOAH has been

received in evidence as Petitioner's Exhibit C.

14. Section 190.005(1)(d), Florida Statutes, requires

Petitioner to publish notice of the local public hearing in a

ne wspaper of general circulation in Manatee County for four

consecutive weeks prior to the hearing. The notice was

published in a newspaper of general paid circulation in

Manatee County for four consecutive weeks, on October 21 and

28 and November 4 and 11, 2004. The Proof of Publication of

the Notice of Local Public Hearing has been received in

evidence as Petition Exhibit B.

15. A local public hearing on the Petition was noticed

and held on November 17, 2004, in the Lakewood Ranch Town

Hall, located at 8 175 Lakewood Ranch Boulevard, Bradenton,

Florida. Except for the four witnesses presented by

Petitioner, no other persons or entities presented any

witnesses or exhibits. No members of the public provided any

comment.

B. Additional Information from Loca l Public Hearing

16. Section 190.005(1)(e)1. - 5., Florida Statutes, sets

forth the factors which must be considered in determining

whether to grant or deny a petition to establish a community

development district. A summary of the testimony and exhibits

o ffered by Petitioner's witnesses on each of these factors, as

well as other requirements imposed by statute or rule, is set

forth below.

a. Whether all statements contained within the Petition

have been found to be true and correct.

17. Petitioner's Composite Exhibit A was identified for

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

filed with the Commission. Witness Danahy testified that he

had reviewed the contents of the Petition and approved its

findings. He also generally describe d the attachments to the

Petition. Finally, he testified that the Petition and its

attachments, as modified, admitted into evidence as Composite

Exhibit A, are true and correct to the best of his knowledge.

18. Witness Lombardo testified that he assist ed in the

preparation of portions of the Petition and its attachments.

He generally described the services and facilities the

District is expected to provide. Likewise, he opined that the

cost estimates provided in the petition are reasonable.

Witness L ombardo also testified that the attachments to the

Petition, specifically Exhibit 6 to the Petition, was true and

correct to the best of his knowledge.

19. Witness Garland, who was accepted as an expert in

the field of economic and financial analysis of special

districts, testified that his firm had prepared attachments 7

and 7R to the Petition, the SERC and a Revised SERC. Witness

Garland also testified that the Revised SERC submitted as

Attachment 7R to Petitioner's Composite Exhibit A was true and

c orrect to the best of his knowledge.

20. Witness Danahy testified that the Petition included

a true and correct written consent to establish the proposed

District from one hundred percent of the owners of the real

property located within the lands to be included in the

proposed District.

21. Witness Danahy also testified that the Petition

included the names of the Board of Supervisors of the proposed

District. However, the list was corrected to include the

following individuals designated to serve on the Board of

Supervisors: Bob Weber, Thomas J. Danahy, Robert Lane, Harold

Wagner, and Roger Hill. Each of these individuals is a

citizen of the United States and resides in the State of

Florida.

b. Whether the establishment of the District is

incons istent with any applicable element or portion of the

State Comprehensive Plan or of the local government

comprehensive plan.

22. Witness Canin, who was accepted as an expert in the

field of planning, reviewed the proposed District in light of

the require ments of the State Comprehensive Plan codified in

Chapter 187, Florida Statutes. Witness Canin also reviewed

the proposed District in light of the requirements of the

effective Manatee County Comprehensive Plan.

23. Witness Canin pointed out that f rom a planning

perspective, two subjects of the State Comprehensive Plan

apply directly to the establishment of the proposed District

as do the policies supporting those subjects.

24. According to Witness Canin, Subject 15, Land Use,

recognizes the import ance of enhancing the quality of life in

Florida by ensuring that future development is located in

areas that have the fiscal ability and service capacity to

accommodate growth. Witness Canin also testified that the

proposed District will have the fiscal ability to provide

services and facilities to the population in the designated

growth area and help provide infrastructure in an area which

can accommodate development within the County in a fiscally

responsible manner.

25. Witness Canin further discuss ed Subject 25, Plan

Implementation, which requires that systematic planning shall

be incorporated into all levels of government throughout the

State. This goal encourages intergovernmental coordination.

He testified that the proposed District is consisten t with

this element of the State Comprehensive Plan because the

proposed District will systematically plan for the

construction, operation, and maintenance of the public

improvements and the community facilities authorized under

Chapter 190, Florida Statut es, subject to and not inconsistent

with the local government comprehensive plan and land

development regulations. Additionally, the District meetings

are publicly advertised and are open to the public so that all

District property owners and residents ca n be involved in

planning for improvements.

26. From an economic perspective, Witness Garland

testified that two subject areas of the State Comprehensive

Plan are particularly relevant: Subject 17, Public

Facilities, and Subject 20, Governmental Effi ciency.

27. Subject 17, Public Facilities, aims to protect the

substantial investments and public facilities that already

exist and plan for the future facilities to serve Florida

residents. According to Witness Garland, the proposed

District will prov ide its improvements and facilities at no

capital costs to the County. This allows the County to focus

its time and resources on other priorities.

28. Subject 20, Governmental Efficiency, directs Florida

governments to economically and efficiently prov ide the amount

and quality of services required by the public. Witness

Garland stated that the proposed District will plan, finance,

and deliver its own facilities. The County and the District

would also be able to form interlocal agreements to address

m utually beneficial projects and services.

29. Witness Canin further testified that he reviewed the

relevant portions of the effective Manatee County

Comprehensive Plan in light of the establishment of the

proposed District. He opined that the proposed D istrict is

not inconsistent with the local comprehensive plan.

c. Whether the area of land within the proposed district

is of sufficient size, is sufficiently compact, and is

sufficiently contiguous to be developable as one functional

interrelated commu nity.

30. Testimony concerning this factor was provided by

Witnesses Danahy, Lombardo, Canin, and Daugirda. As noted

above, the lands that comprise the proposed District will

consist of approximately 1,615.22 acres, located entirely

within the borders o f Manatee County.

31. Witness Danahy testified that all of the land in the

proposed District is part of a planned community included in

the University Lakes Development of Regional Impact.

32. Witness Canin testified that a functionally

interrelated community is one which provides people with the

facilities and services they desire within their community

such as roads, parking, drainage, water, sewer, lighting, and

similar governmental services. He stated that services and

facilities included in rela tion to the term "functionally

interrelated" are, among others, management capability,

funding source, and understanding of the size of the

community's needs in order to handle growth and development of

the community.

33. Witness Canin further testified that from a planning

perspective, the District is a sufficient size to accommodate

the basic infrastructure facilities and services typical of a

functionally interrelated community. He also testified that

the proposed facilities can be provided in an eff icient,

functional, and integrated manner.

34. Witness Canin added that compactness relates to the

location in distance between the lands and land uses within a

community. The community is sufficiently compact to be

developed as a functionally interrel ated community. He opined

that the compact configuration of the lands will allow the

District to provide for the installation and maintenance of

its infrastructure in a long - term, cost - efficient manner.

35. All three witnesses testified that from plan ning,

economics, engineering, and management perspectives, the area

of land to be included in the proposed District is of

sufficient size, is sufficiently compact, and is sufficiently

contiguous to be developed as a single functionally

interrelated communi ty.

d. Whether the proposed district is the best alternative

available for delivering community development services and

facilities to the area that will be served by the proposed

district.

36. The Petition states that Petitioner presently

intends f or the District to participate in the construction or

provision of certain infrastructure improvements as outlined

in the Petition.

37. According to Witness Danahy, installation and

maintenance of infrastructure systems and services by the

District are expected to be paid through the imposition of

special assessments. Use of such assessments will ensure that

the real property benefiting from District services is the

same property which pays for them.

38. Witness Daugirda testified that two types of

a lternatives to the establishment of the District were

identified. First, the County might provide facilities and

services from its general fund. Second, facilities and

services might be provided by some private means, with

maintenance delegated to a prop erty owners' or home owners'

association.

39. Witness Daugirda further indicated that the District

will be governed by and managed by its own board thereby

allowing greater focus on the needs of the District and its

facilities and services.

40. Witn ess Danahy stated that the District will

construct certain infrastructure and community facilities

which will be needed by the property owners and residents of

the project. Expenses for the operations and maintenance are

expected to be paid through mainte nance assessments to ensure

that the property or person receiving the benefit of the

district services is the same property or person to pay for

those services.

41. Witness Daugirda testified that only a community

development district allows for the in dependent financing,

administration, operations, and maintenance of the land within

such a district; that only a community development district

allows district residents to completely control the district;

and that all of the other alternatives do not have these

characteristics.

42. Witness Lombardo opined that from an engineering

perspective, the proposed District is the best alternative to

provide the proposed community development services and

facilities to the land included in the proposed District

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

maintaining the facilities over their expected life.

43. Finally, Witness Canin testified that from planning,

economic, engineering, and special district management

perspectives, the proposed District is the best alternative

available for delivering community development services and

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

e. Whether the community development services and

facilities of the proposed district will be incom patible with

the capacity and uses of existing local and regional community

development services and facilities.

44. Witnesses Canin, Lombardo, and Garland each

testified that the services and facilities proposed to be

provided by the District are not incompatible with uses and

existing local and regional facilities and services. They

further indicated that the District's facilities and services

within the proposed boundaries will not duplicate any existing

regional services or facilities which are pr ovided to the

lands within the District by another entity. None of the

proposed services or facilities are presently being provided

by another entity for the lands to be included within the

District.

45. Finally, they opined that the community developm ent

services and facilities of the proposed district will not be

incompatible with the capacity and uses of existing local and

regional community development services and facilities.

f. Whether the area that will be served by the district

is amenable to separate special - district government.

46. As stated above, the witnesses have testified that

from planning, economics, engineering, and special district

management perspectives, the area of land to be included in

the proposed District is of sufficient s ize, is sufficiently

compact, and is sufficiently contiguous to be developed and

become a functionally interrelated community. The community

to be included in the District has need for basic

infrastructure systems to be provided.

47. Finally, Petitione r's four witnesses opined that

from planning, engineering, economic, and management

perspectives, the area that will be served by the amended

District is amenable to separate special - district government.

g. Other requirements imposed by statute or rule.

48. Chapter 190, Florida Statutes, and Florida

Administrative Code Chapter 42 - 1 impose specific requirements

regarding the petition and other information to be submitted

to the Commission.

49. The FLWAC has certified that the Petition to

Establish the Lakewood Ranch Community Development District

Seven meets all of the requirements of Section 190.005(1)(a),

Florida Statutes.

50. Petition Exhibits 7 and 7A are the SERC and the

Revised SERC submitted by Petitioner. The Revised SERC

corrects the amount of acreage (1,615.22 acres) encompassed

within the proposed District and the proposed number of

residential units (751 single - family residential units) to be

included within the proposed District. They also contain an

estimate of the costs and benefits t o all persons directly

affected by the proposed rule to establish the District -- the

State of Florida and its citizens, the County and its

citizens, the City and its citizens, Petitioner, and

consumers.

51. Petition Exhibit 7 states that beyond admini strative

costs related to rule adoption, the State and its citizens

will only incur minimal costs from establishing the District.

These costs are related to the incremental costs to various

agencies of reviewing one additional local government report.

Th e proposed District will require no subsidies from the

State.

52. The exhibit further provides that administrative

costs incurred by the County related to rule adoption should

be minimal and are offset by the required filing fee of

$15,000.00. Benefits to the County will include improved

planning and coordination of development, without incurring

any administrative or maintenance burden for facilities and

services within the proposed District except for those it

chooses to accept.

53. According to Wi tness Garland, consumers will pay

non - ad valorem or special assessments for the District

facilities. Location within the District is voluntary.

Generally, District financing will be less expensive than

maintenance through a property owners' association o r capital

improvements financed through developer loans. Benefits to

consumers in the area within the District will include a

higher level of public services and amenities than might

otherwise be available, completion of District - sponsored

improvements to the area on a timely basis, and a larger share

of direct control over community development services and

facilities within the area. Ultimately the property owners

within the District as well as the users of the District

facilities choose to accept the D istricts costs in trade off

for the benefits that the District provides.

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

the petition to include a SERC which meets the requirements of

Section 120.541, Florida Statutes. Witness Garland opined

that the Revised SERC meets all requirements of the law.

APPLICABLE LAW

55. Section 190.005, Florida Statutes, sets forth the

requirements for establishing a community development

district. It provides that a petition shall be filed with

FLWAC which contain s a metes and bounds description of the

external boundaries of the district; the written consent to

the establishment of the district by all landowners whose real

property is to be included in the district; a designation of

five persons to be initial membe rs of the board of

supervisors; the proposed name of the district; a map showing

the major trunk water mains and sewer interceptors and

outfalls if in existence; the proposed timetable for

construction of the district services and estimated cost; a

designa tion of the future general distribution, location, and

extent of public and private uses of land proposed for the

area within the district by the future land use plan element

of the effective local government comprehensive plan; and a

statement of estimate d regulatory costs.

56. Section 190.005(1)(d), Florida Statutes, requires

that a local public hearing be conducted by an ALJ. The

hearing "shall include oral and written comments on the

petition pertinent to the factors specified in paragraph (e)."

5 7. Section 190.005(1)(e), Florida Statutes, provides

that the FLWAC shall consider the entire record of the local

hearing, the transcript of the hearing, any resolutions

adopted by local general - purpose governments as provided in

Section 190.005(1)(c), Fl orida Statutes, and the following

factors and make a determination to grant or deny the

petition:

1. Whether all statements contained in the

petition have been found to be true and

correct.

2. Whether the establishment of the

district is inconsistent wi th any

applicable element 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

con tiguous 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 c ommunity development

services and facilities of the district

will be incompatible with the capacity and

uses of existing local and regional

community development services and

facilities.

6. Whether the area that will be served by

the district is amenable to separate

special - district government.

COMPARISON OF INFORMATION IN RECORD TO APPLICABLE LAW

A. Procedural Requirements

58. The evidence was that Petitioner satisfied the

procedural requirements for the establishment of a District by

filing the Pet ition in the proper form with the required

attachments, by tendering the requisite filing fee to the

local government, and by publishing statutory notice of the

local public hearing.

B. Six Factors of Section 190.005(1)(e)1. - 6.,

Florida Statutes

59. The evidence was that the statements in the Petition

and its attachments are true and correct.

60. The evidence was that the establishment of the

District is not inconsistent with any applicable element of

portion of the State Comprehensive Plan or the effec tive

Manatee County Comprehensive Plan.

61. The evidence was that 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.

62 . The evidence was that the proposed District is the

best alternative available for delivering community

development services and facilities to the area that will be

served by the District.

63. The evidence was that the community development

services and facilities of the proposed District will not be

incompatible with the capacity and uses of existing local and

regional community development services and facilities.

64. The evidence was that the area to be served by the

proposed District is amenable to a separate special district

government.

CONCLUSION

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

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

the transcript of the hearing, resolutions adopted by local

general - purpose government s," and the factors listed in that

subparagraph. Based on the record evidence, the Petition

appears to meet all statutory requirements, and there appears

to be no reason not to grant the Petition to establish the

proposed District. For purposes of drafti ng the amended rule,

a metes and bounds description of the boundary of the Lakewood

Ranch Community Development District Seven may be found as

Petition Exhibit 2.

DONE AND ENTERED this 17th day of December, 2004, in

Tallahassee, Leon County, Florida.

S

DONALD R. ALEXANDER

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 17th day of December, 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, Florida 32399 - 0001

Jonathan T. Johnson, Esquire

Hoppi ng Green & Sams, P.A.

Post Office Box 6526

Tallahassee, Florida 32314 - 6526

Heidi M. Hughes, General Counsel

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399 - 2100