05-001852 In Re: Petition For Rule Creation - Pioneer Community Development District vs. * Status: Closed Recommended Order on Wednesday, September 21, 2005.

Summary: Given the construction of "contiguous" as used in the Florida Statute, all factors were met and the community development district should be established, unless the establishment would impede State plans to purchase the property.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: PETITION FOR RULE )

CREATION - PIONEER COMMUNITY ) Case No. 05 - 1852

DEVELOPMENT DISTRICT. )

)

ADMINISTRATIVE LAW JUDGE'S REPORT TO

THE FLORIDA LAND AND W ATER ADJUDICATORY COMMISSION

On August 2, 2005 , a local public hearing under

Section 190.0 05(1)(d), Florida Statutes (2004 ), 1 was conducted in

Port Orange , Florida, by J. Lawrence Johnston, Administrative

Law Judge (ALJ) of the Division of Administrative Hearings

(DOAH).

APPEARANCES

For Petitioner: Jonathan T. Johnson, Esquire

Paula M. Sparkman, Esquire

Hopping, Green, & Sams, P.A.

123 South Calhoun Street

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 Pioneer Community Development District

(Petition) . The local public hearing was for purposes of

gathering informat ion in anticipation of quasi - legislative

rulemaking by FLWAC. 2

PRELIMINARY STATEMENT

The Petition was filed by MHK of Volusia County, Inc.

(Petitioner), on May 2, 2005 . It requested that FLWAC adopt a

rule to establish a state - chartered uniform communi ty

development district, to be called the Pioneer Community

Development District (District or CDD), on certain property in

the City of Port Orange , which is located in Volusia County,

Florida.

On May 18, 2005 , the Secretary of FLWAC certified that the

Pe tition contained all required elements and forwarded the

Petition to DOAH for assignment of an ALJ to conduct a local

public hearing under Section 190.005(1)(d), Florida Statutes.

The local public hearing before the ALJ was scheduled to

begin at 8:30 a.m . on August 2, 2005 , in the City Commission

Chambers, City Hall, Port Orange , Volusia County, Florida. On

July 28, 2005 , Petitioner pre - filed the testimony of five of its

witnesses: Cynthia C. Jones, President of MHK of Volusia

County, Inc.; Dwight DuRan t, an expert in design and planning of

infrastructure; Alan Watts, with the law firm of Cobb and Cole,

an expert in financing and planning for infrastructure; James A.

Perry, with the firm of Governmental Management Services, LLC,

an expert in the field of economics and financial analysis; and

Darrin Mossing, President of Governmental Managemental Services,

LLC, an expert in special district governme nt operation and

establishment. Copies of the pre - filed testimony also were made

available for public inspec tion at the office of the City

Manager, City of Port Orange.

The start of the hearing was delayed 50 minutes because the

court reporter hired by Petitioner did not attend the hearing.

Some members of the public wishing to speak were un able to wait

for t he substitute court reporter to arrive to record

Petitioner's presentation and were given the opportunity to

speak on an audiotape record later transcribed by the substitute

court reporter. Others member of the public were able to wait

and speak after the Petitioner's delayed presentation. All

members of the public also were given the opportunity to submit

written comments within ten days. Many members of the public

took advantage of one or more of the available means of

commenting for the record. All b ut one public participant spoke

in opposition to the Petition. Pub lic Comment Exhibits 1

through 8 also were admitted into the record.

During the Petitioner's presentation, the Petitioner's

witnesses listed above adopted or corrected their pre - filed

tes timony. In addition, the Petitioner had Petitioner's

Exhibits 1 through 11 admitted in evidence.

After Petitioner's initial presentation, public comment was

completed ( including receipt of Public Comment Exhibit s 3

through 8), and Petitioner presented r ebuttal, which included

the testimony of William Michael Dennis, President and Owner of

Breedlove, Dennis & Associates, as an expert in the

environmental analysis of property and permitting .

After the close of the presentation and comments on the day

of the hearing, the record was left open for ten days for

submission of additional written public comment (labeled Post -

Hearing Public Comment Exhibits . ) The Transcript of the local

public hearing was filed on August 16, 2005. Petitioner's

response s to the additional written public comment were filed on

August 22, 2005 ( labeled Petitioner's Responses to Post - Hearing

Public Comment .) Petitioner's Proposed Report of Findings and

Conclusions was filed on August 26, 2005.

On September 16, 2005, additional pub lic comment was filed

but was not added to the Post - Hearing Public Comment Exhibits

or considered to be part of the record of the local public

hearing because it was untimely . (In any event, the matters

raised in the late attempted additional public comm ent already

had been considered.)

As used in this Report, Hearing Exhibit means an exhibit

introduced by Petitioner and admitted in evidence during the

local public hearing, and Petition Exhibit means an exhibit

attached to the Petition , a copy of which was admitted as

Petitioner's Hearing Exhibit 2 .

SUMMARY OF RECORD

A. Petition and Related Matters

1. The Petition (a copy of which was introduced and

accepted in evidence at the local publ ic hearing as Petitioner's

Hearing Exhibit 2 ) alleges that th e land for the District

(approximately 1,238.2 acres) is located entirely within the

City of Port Orange in Volusia County, Florida. Petition

Exhibit 1 depicts the location , and Petition Exhibit 2 describes

the metes and bounds of the external boundaries of the District.

2 . The Petition states: "There are no parcels located

within the external boundaries of the proposed District which

are to be excluded from the District." However, Petition

Exhibits 1 and 2 show that I nterstate 95 (I - 95) , which is

spe cifically excluded from the land to be included in the

District, actually bisects the land to be included in the

District. As described in Petition Exhibits 1 and 2, I - 9 5 is

not included within the external boundaries of the proposed

District because thos e documents e ssentially describe two

parcels separated by I - 95. There are no parcels of real

property within the external boundaries of the two separate

parcels that are excluded from the District.

3. Petition Exhibit 3 names the two owners of all pro perty

within the boundaries of the proposed District -- namely , the

Petitioner and Stanaki Partnership, a Florida general

partnership -- both of who m have given written consent to

establishment of the District.

4 . The Petition states that the name of the p roposed

District will be the "Pioneer Community Development District."

5. The Petition names those designated to be the five

initial members of the Board of Supervisors of the proposed

District -- J. Andrew Hagan, Jean Trinder, Richard Smith, Cheryl

Hamilt on and Cynthia Jones . An identical address ( 2379 Beville

Road, Daytona Beach, Florida 32119 ) is listed for each of them.

The Petition states that each is a resident of the State of

Florida and a citizen of the United States of America.

6 . The Petitio n states that the lands within the proposed

District are largely undeveloped but also states that existing

land uses within the proposed District are depicted in Petition

Exhibit 4 . The Petition also states that " future general

distribution, location and extent of the public and private land

uses according to the local effective future land use map [FLUM]

proposed to be within the District are shown on [ Petition ]

Exhibit 5. " However, Petition Exhibit 4 actually shows the

existing FLUM, and Petition Exhibi t 5 actually shows a proposed

FLUM for the property .

7 . The Petition states that Petition Exhibit 6 shows " the

exist ing major trunk water mains, sewer interceptors and

stormwater outfalls , if any." Petition Exhibit 6 is a drawing

of a Planned Unit Deve lopment (PUD) proposal for the property

which depicts: "EXISTING Sanitary Water Reuse"; "DRAINAGE";

"Proposed Sanitary, Water, and Reuse Connections"; and "EXISTING

& PROPOSED DRAINAGE OUTFALL . "

8 . The Petition alleges that the Petitioner "present ly

intends for the District to participate in the construction and

installation of certain systems, facilities, and basis [sic]

infrastructure within the scope of Section 190.012, Florida

Statutes . " The Petition states that its "Exhibit 7 describes

the fa cilities that the Petitioner presently expects the

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

reconstruct, enlarge, equip, operate and/or maintain" and that

its Exhibit 8 estimates the costs of construction. Actually,

Petition Exhibit s 7 and 8 list facilities, their ownership and

maintenance, their financing , and their cost , respectively, as

follows: Stormwater Management Facilities , CDD, CDD,

$15,200,000; Roadways, City, CDD, $9,500,000; Utilities, City,

CDD, $12,300,000; Landscaping and Hardscaping, CDD, CDD,

$8,700,000; and Facilities for Indoor and Outdoor Cultural and

Recreational Uses (Initiation 4 years operation), CDD, CDD,

$3,800,000. Petition Exhibit 8 adds $3,026,000 for "Design

Engineering, Environmental, and Surveying Permitting." The

Petition states that "[t]hese improvements are expected to be

made over a ten year period, approximately from 2005 through

2015 " but cautions that "[a] ctual construction timetables and

expenditures will likely vary, due in part to the ef fects of

future changes in the economic . . . and market conditions. "

9 . The Pet ition alleges that its Exhibit 9 is a Statement

of Estimated Regulatory Costs (SERC) based on presently

available data and a methodology described in the SERC. In

particul ar, the SERC was prepared in accordance with the

requirements of Section 120.541 (2) , Florida Statutes , but

subject to the limitations of Section 190.00 2(2)(d), Florida

Statutes , which states the policy of the State to be : " That the

process of establishing such a district pursuant to uniform

general law be fair and based only on factors material to

managing and financing the service - delivery function of the

district, so that any matter concerning permitting or planning

of the development is not material or relevant. " The SERC

describes a plan of development for s ingle - family residential

units ( some detached and some attached ) , multi - family housing,

and commercial mixed - use, with a total of 1,300 residential

units and 25 acres of commercial mixed - use.

10 . T he SERC contains an estimate of the costs and

benefits to persons directly affected by the proposed rule to

establish the District -- including the State of Florida and its

citizens, the County and its citizens, the City of Port Orange

and its citizens, th e Petitioner, and consumers ( i.e. ,

purchasers of land in the proposed District. )

11 . The SERC states that the State and its citizens will

only incur minimal costs from establishing the District b eyond

administrative costs related to rule adoption . Thes e costs are

related to the incremental costs to various agencies of

reviewing one additional local government report. The proposed

District will require no subsidies from the State.

12. A dministrative costs incurred by the County related to

rule adopti on should be minimal and are offset by the required

filing fee of $15,000 to both Volusia County and the City of

Port Orange. Benefits to the City of Port Orange and 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 .

1 3. Consumers choosing to purchase property within the

proposed District will pay non - ad valorem or special assessm ents

for the District facilities , maintenance, and operation .

Generally, District financing th rough issuance of bonds secured

by non - ad valorem or special assessments for facilities will be

no more if not less expensive than financing through municipal

se rvice taxing unit (MSTU), a homeowners' or property owners'

association ( HOA or POA) , County provision, or developer equity

and/or bank loans. Benefits to consumers in the area within the

CDD will include a higher level of public services and amenities

th an 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

prop erty owners within t he District choose to accept the

District ' s costs in trade off for the benefits that the District

provides them, including the use of District facilities .

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

copies were sent to the City of Port O range and to Volusia

County, along with the required filing fee of $15,000 to each of

those local governments , in accordance with Section

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

15 . The Petition alleges that it should be granted

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

Florida Statutes.

B. Additional Information from Local Public Hearing

16 . The Petitioner publish ed notice of the local public

hearing in a newspaper of general paid circulation in Port

Orange/Volusia County (the News - Jour nal ) for four consecutive

weeks, on July 5, July 12, July 19 , and July 26, 2005 , as

required by Section 190.005(1)(d), Florida Statutes.

17 . Volusia County did not hold a public hearing on the

establishment of the proposed District , as per mitted by Sec tion

190.005(1)(c) , Florida Statutes. Public comment suggested that

the County was not fully aware of the nature of the lands to be

included in the CDD proposed in the Petition when it decided not

to hold a public hearing. But this suggestion was not

cor roborated by any representative of the County. To the

contrary, the Petition reveals the location of the lands at

issue.

18 . The City of Port Orange held a public hearing on the

establishment of the District on June 28, 2005. As a result of

that heari ng, the City adopted Resolution No. 05 - 49 in support

of the proposed District. But the exact nature of the support

expressed by the City of Port Orange is not clear. Section 1(4)

of t he R esolution stated that it "is subject to a subsequent

interlocal agr eement to be entered into between the District and

the City as well as any subsequent agreement with the Petitioner

whereby the District, the City and the Petitioner reach

agreement concerning the participation by th e District or the

Petitioner in certain described facilities and services,

including "(a) to plan, establish, acquire, construct or

reconstruct, enlarge or extend, equip, operate and maintain

additional systems and facilities for . . . (vii) Public

facilities needed to meet concurrency, includin g but not limited

to an additional interchange on I - 95 and improvement to one or

more county or state roads within or impacted by the District."

Based on this language, t he Petitioner's Proposed Report

characterizes Resolution 5 - 49 as being "predicated on the

Petitioner’s commitment to consider cooperating with the City on

certain joint projects , including a possible interchange at

Pioneer Trail and Interstate 95. "

19 . Pioneer Trail, a two - lane County road, is contiguous

to the southern external boundar ies of the two parcels that

would comprise the proposed District. Pioneer T rail passes over

I - 95 without an interstate access interchange. There was public

comment, which the Petitioner did not refute or rebut, that

Pioneer Trail is operating below its d esignated level of service

standard, and that the addition of development proposed in the

Stanaki PUD would only make things worse. There is no other

existing road connection between the two halves of the proposed

District.

20 . The Petitioner takes the position that the applicable

PUD 3 entitles the Petitioner to develop its proposed project

without tho se or any other road improvements as concurrency for

the project. But there was no evidence describing the

concurrency management system used by the City of Port Orange,

or how it would affect proposed development. In addition, while

the PUD documents in the record do not specifically require

additional road improvements as concurrency for the project,

they do provide that, if the project is built in phas es, and the

area east of I - 95 is "developed in advance of the 'beltline'

extension and I - 95 crossing being constructed," the developers

under the PUD must "provide adequate assurances to the City that

necessary public services and compliance with the City' s

concurrency management regulations can be provided by the time

construction of the first phase of the property east o f I - 95 is

complete." W hile t he PUD appears to include a plan to extend

the "beltline" through the property from Williamson Boulevard

nea r the northwestern corner of the District, over I - 95, and

connecting to Martin Dairy Road, to the southeastern corner of

the District , there was public comment to the effect that local

citizens groups had succeeded in prohibiting the "beltline"

extension t hrough the property. The Petitioner did not refute

or rebut this suggestion. To the contrary, the proposed FLUM

included in the Petition does not include a "beltline"

extension, or any other road within the proposed District

connecting the two parcels on either side of I - 95.

21 . No copy of the Petition was submitted, nor filing fee

paid, to the C ity of New Smyrna Beach, and t he City of New

Smyrna Beach did not hold a hearing on the Petition.

22 . It appears from the evidence in the record that the

so uthern external boundary of the proposed District is separated

from the City of New Smyrna Beach only by the County - owned

Pioneer Trail right - of - way .

Factor 1 - Petition True and Correct

23 . As corrected in testimony, and as explained above, the

Petition is true and correct, excepting the conclusive

allegation that the Petition should be granted according to the

factors listed in Section 190.005(1)(e), Florida Statutes, which

must be discussed further , infra .

Factor 2 - Consistency with Comprehensive Pl ans

24 . State Comprehensive Plan Subject 15, Land Use, states:

Goal. -- In recognition of the importance of

preserving the natural resources and

enhancing the quality of life of the state,

development shall be directed to those areas

which have in place, or have agreements to

provide, the land and water resources,

fiscal abilities, and service capacity to

accommodate growth in an environmentally

acceptable manner.

§ 187.201(15)(a), Fla. Stat. Districts such as the proposed

Pioneer CDD are designed to p rovide the special services and

facilities needed to accommodate growth within its boundaries.

25 . Public comment argued that the goal of Subject 15,

Land Use , will not be met by the proposed District because the

450 acres of the proposed District east of I - 95 should be

preserved and added to the Doris Leeper Spruce Creek Preserve

(DLSCP) , which is east of the proposed District and borders it

for approximately three linear miles. The DLSCP itself was

purchased and is owned by the State. Years of effor t by local

interests to add the 450 acres east of I - 95, which includes the

Left Trail Tributary to Spruce Creek, to the DLSCP culminated in

its placement on the Conservation and Recreational Lands (CARL)

acquisition list and an offer by the State to purcha se the land

in 2002. The owner (inferred to be the Stanaki Partnership)

refused to sell. According to the public comment, which was not

refuted or rebutted, the Petitioner then purchased an option to

buy the property (or made some other kind of contingen t offer to

purchase it) for twice the amount offered by the State . The

details of the arrangement were not made not clear.

26 . In part, the Petitioner takes the position that the

appropriate treatment of the lands east of I - 95 is a "matter

concerning p lanning and permitting," which is not "material or

relevant" under Section 190.002(2)(d), Florida Statutes. 4 T he

Petitioner also takes the position that those lands included

within the existing and effective Stanaki PUD , which the

Petitioner intends to de velop regardless whether the Petition is

granted. But it is clear that development would be easier

through establishment of a CDD, and it is not clear that

infrastructure concurrency requirements would be met, or that

development actually would proceed, w ithout establishment of a

CDD.

27 . If development proceeds, the St. Johns River Water

M anagement District would prefer the use of a CDD to maintain

sensitive environmental and stormwater sys tems, rather than the

use of an HOA or POA . If ongoing discuss ions among the

Petitioner, the City of Port Orange, and the Friends of Spruce

Creek lead to an agreed modification of the existing PUD to

preserve more of the 450 acres to the east of I - 95, a CDD could

be used to operate and maintain the preserve effective ly.

28 . The goal of Subject 17, Public Facilities, is:

"Florida shall protect the substantial investments in public

facilities that already exist and plan for and finance new

facilities to serve residents in a timely, orderly, and

efficient manner . " § 187.201(17)(a), Fla. Stat. Policies under

the goal include:

3. Allocate the costs of new public

facilities on the basis of the benefits

received by existing and future residents.

4. Create a partnership among state

government, local governments, and the

private sector which would identify and

build needed public facilities and allocate

the costs of such facilities among the

partners in proportion to the benefits

accruing to each of them.

5. Encourage local government financial

self - sufficiency in pro viding public

facilities.

* * *

7. Encourage the development, use, and

coordination of capital improvement plans by

all levels of government.

§ 187.201(17)(b), Fla. Stat. The proposed District will provide

its improvements and facili ties at no c apital costs to local

government . To that extent, establishment of the proposed

District would allow the local governments to focus on other

priorities. U ltimate ly, consistency with this goal and these

policies will depend on a satisfactory agreement for the

Petitioner to participate in the provisions of "[p]ublic

facilities needed to meet concurrency, including but not limited

to an additional interchange on I - 95 and improvement to one or

more county or state roads within or impacted by the District."

29 . Subject 20, Governmental Efficiency, directs Florida

governments to economically and efficiently provide the amount

and quality of services required by the public. The proposed

District will plan, finance, and deliver its own facilities.

The develop ment of the property does not burden the general

taxpayer with the costs for services or facilities inside the

District. The proposed District will be professionally managed,

financed , and governed by those whose property directly receives

the benefits of the services and facilities provided.

30 . Subject 25, Plan Implementation, requires that

systematic planning shall be incorporated into all levels of

government throughout the State. This goal encourages

intergovernmental coordination. The proposed D istrict would

systematically plan for the construction, operation and

maintenance of the public improvements and the communi ty

facilities authorized under Chapter 190, Florida Statutes,

subject to and not inconsistent with the local government

comprehensiv e plan and land development regulations.

Additionally, District meetings are publicly advertised and are

open to the public so that all District property owners and

residents can be involved in planning for improvements.

Furthermore, as indicated, the re solution adopted by the City of

Port Orange contemplates the kind of intergovernmental

coordination approved by this element of the State Comprehensive

Plan .

31 . Public comment argued that establishing the CDD would

be inconsistent with Subject 25 becau se it would be at odds with

the State's plan to purchase the 450 acres east of I - 95 for

addition to the DLSCP . There is some merit to the argument to

the extent that establishing a CDD on the property might make

outright purchase and development by the Pe titioner more likely

( notwithstanding the Petitioner 's positio n that it will proceed

with outright purchase and development regardless whether a CDD

is established ) . Again, the Petitioner takes the position that

the appropriate treatment of the lands east of I - 95 is a "matter

concerning planning and permitting," which is not "material or

relevant" under Section 190.002(2)(d), Florida Statutes. In

addition, as mentioned, if ongoing discussions among the

Petitioner, the City of Port Orange, and the Friends of Spruce

Creek lead to an agreed modification of the existing PUD to

preserve more of the 450 acres to the east of I - 95, a CDD could

be used to operate and maintain the preserve effectively.

32 . Witness DuRant testified that he reviewed the relevant

po rtions of the effective local (City of Port Orange)

Comprehensive Plan in light of the establishment of the proposed

District. He opined that the establishment of the proposed

District is not inconsistent with the City of Port Orange

Comprehensive Plan . However, as indicated previously, Petition

Exhibit 4 actually shows the existing FLUM, and Petition Exhibit

5 actually shows a proposed FLUM for the property . Although the

evidence in the record is not clear, it appears that the purpose

of the proposed FL UM is to accommodate the Petitioner's proposed

development plans, which do not appear to be consistent with the

existing FLUM. Likewise, the current Stanaki PUD does not

appear to be consistent with the existing FLUM.

Factor 3 - Sufficient Size, Compact ness , and Contiguity

33 . As indicated, the area of land within the proposed

District is bisected by I - 95 and its right - of - way, with the only

existing roadway connection between the two parcels being via

the two - laned County Road, Pioneer Trail , which is o utside the

external boundaries of the proposed District . Nonetheless, the

Petitioner's witnesses DuRant, Mossing, and Perry testified that

the property proposed for inclusion in the District is of

sufficient size , is sufficiently compact, and is " sufficie ntly

contiguous " to be developable , in accordance with the existing

Stanaki PUD , as one functional interrelated community.

34 . Witness DuRant testified that the water, sewer, and

stormwater management and utility systems are designed and being

permitted as one interrelated, linked system. Each system will

connect under I - 95. Current stormwater drainage patterns are

from west to east and can continue post - development through

existing culverts and drainage connections under I - 95 .

3 5 . Members of the pu blic stated verbally and in

correspondence that , b ecause the parcels are located o n either

side of I - 95, the configuration of the proposed District cannot

be considered sufficiently contiguous for establishment as one

community development district. These comments were refuted in

rebuttal testimony of w itness Mossing , who testified based upon

his work with other districts and a review of certified copies

of maps from the De partment of Community Affairs, that a number

of existing and functioning community d evelopment districts are

established and operating with configurations that are less

contiguous than the proposed Pioneer CDD. Some of these

districts have been established and function even though locat ed

on either side of I - 4, I - 75, assorted state roads and other

features. Witn ess Mossing testified that the division of

property by major transportation corridors or other intervening

spaces will not in and of itself impair the ability of the

District to function as one interrelated community. However, in

this case, the issue is not so much the existence of I - 95, per

se , as much as it is the absence of any road connection between

the two parcels on either side of it, other t han the two - laned

Pioneer Trail . Even if "sufficiently contiguous to be

developabl e as one functional interrelated community," the

quality of the functional interrelations between the two parcels

on either side of I - 95 will depend on making improvements to

Pioneer Trail or creating some other suitable road connection

between the two par cels.

Factor 4 - Best Alternative

36 . It is presently intended that the District will

participate in the construction or provision of certain

infrastructure improvements as outlined in the Petition.

37 . 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.

3 8. Two t ypes of alternatives to the establishment of the

District were identified. First, the City 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 POA or HOA.

3 9. The District will be governed and managed by its own

board of supervisors, thereby allowing greater focus on the

needs of the District and its facilities and services.

4 0. The District will construct certain infrastructure and

comm unity 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 maintenance

assessments to ensure that the property or person receiving the

benefit of t he district services is the same property or person

to pay for t hose services.

4 1. Only a community development district allows for the

independent financing, administration, operations , and

maintenance of the land within such a district. Only a

commun ity development district allows district residents to

completely control the district. No other alternative has these

characteristics. Further, a com munity development district is

the entity preferred by the St. Johns Ri ver Water Management

District.

4 2. From an engineering perspective, the proposed District

is the best alternative to provide the proposed community

development services and facilities to the land included in the

proposed District because it is a long - term, stable, perpetual

entity capab le of maintaining the facilities over their expected

life.

4 3. From planning, economic, engineering, and management

perspectives, the proposed District is the best alternative

available for delivering community development services and

facilities to the area proposed to be served by the District.

Factor 5 - Compatibility with Existing Capacity and Uses

4 4. The services and facilities proposed to be provided by

the District are not incompatible with the capacity and uses and

existing local and re gional community development facilities and

services. T he community development facilities and services

proposed within the District's boundaries will not duplicate any

existing regional services or facilities which are provided 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 . The only public comment pertinent to this issue

suggested that the City of New Smyrna B each was in a better

position to provide utility services to the portions of the

proposed District east of I - 95. However, the Stanaki PUD for

the lands requires that services be prov id ed by the City of Port

Orange , and the proposed utility systems connect under I - 95 and

are designed to be served by the City of Port Orange.

Factor 6 - Amenability to Separate Government

46 . The community proposed to be included in the District

would have need for the basic infrastructure systems to be

provided. Subject to the discussion on the other factors , from

planning, economics, engineering, and special district

management perspectives, the area of land to be included in the

proposed District is of sufficient size, is sufficiently

compact, and is sufficiently contig uous to be developed and

become a funct ionally interrelated community, and would be

amenable to separate special - district government.

APPLICABLE LAW

A. General

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

the sole means for establishing a community development district

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

granting a petition fo r the establishment of a CDD. Section

190.005(2) provides that, for CDDs on proposed property of less

than 1,000 acres, the county in which th e proposed CDD is to be

situated may establish a CDD under the same requirements

discussed below.

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

the petition be filed with F LWAC . The petition must describe by

metes and bounds the area to b e 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

proposed to be in the CDD, or has contro l by "deed, trust

agreement, contract or option" of all of the real property. The

petition must designate the five initial members of the board of

supervisors of the CDD and the District's name. The petition

must contain a map showing " current major trun k water mains and

sewer interceptors and outfalls if any. " 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 "the future genera l

distribution, location, and extent of public and private uses of

land proposed for the area within the district by the future

land use element of the effective local government comprehensive

plan . . . . " Finally, t he petition must contain a SERC in

acc ordance with the requirements of Section 120.541, Florida

Statutes .

49 . 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 "the boundaries of which are contiguous with,

or contain all or a portion of, the land within the external

boundaries of the district." The petitioner also must serve a

copy of the petition on those local, general - purpose

governments.

50 . According to Black's Law Dictionary , (8th Ed. 2004),

"con tiguous" is an adjective meaning: " 1. Touching at a point

or along a boundary; ADJOINING

contiguous>. 2. Near in time or sequence; successive <>

thunder and lightning>. " The Black's Law Dictionary or a

substantially simi lar definition has been used repeatedly by the

courts, but the application of the definition has depended on

the context.

51 . In the context of establishing house or senate

districts , the Black's Law Dictionary definition is used. In

addition, land s th at mutually touch only at a common corner or

right angle are not regarded as “contiguous . ” See In re

Constitutionality of House Joint Resolution 25E , 863 So. 2d

1176 , 1179 - 1180 ( Fla. 2003 ); In re Constitutionality of House

Joint Resolution 1987 , 817 So. 2 d 819 , 827 - 828 ( Fla. 2002); In

re Senate Joint Resolution 2G, Special , 597 So. 2d 276 , 279

( Fla. 1992 ); In re Apportionment Law, Senate Joint Resolution

1 E , 414 So. 2d 1040, 1051 (Fla. 1982) . However, contiguity

" does not impose a requirement of a paved, dry road connecting

all parts of a district " and " does not require convenience and

ease of travel, or travel by terrestrial rather than marine

forms of transportation . . . ." Id.

52 . In Davis Water & Waste Industries, Inc. v. Embry , 603

So. 2d 1357 , 1358 - 1359 (Fla. 1st DCA 1992), the context was a

construction lien statute providing that, when " services or

materials are placed on land dedicated to public use and are

furnished under contract with the owner of the abutting land, " a

construction lien can be imposed on the "abutting land."

"Abutting" was defined using its synonym "contiguous," and the

lien was not allowed when the defendant's land was separated

from the work site by intervening lands and was over a mile

away, notwithstanding that the defe ndant's lands benefited from

the work.

53 . In City of Miami v. Carson , 237 So. 2d 805 , 806 (Fla.

3d DCA 1970 ), essentially the same Black's Law Dictionary

definition was used in construing a local ordinance allowing

open parking lots as a conditional us e in a single - family use

district if "contiguous" to an area zoned commercial, or if

separated from an area zoned commercial only by a specifically

defined "alley." In that context, separation by a "through

street" destroyed the required contiguity and pr ecluded the

requested conditional use.

54 . In the context of annexation, "contiguous" is defined

by Section 171.031(11), Florida Statutes, to mean:

that a substantial part of a boundary of the

territory sought to be annexed by a

municipality is coterm inous with a part of

the boundary of the municipality. The

separation of the territory sought to be

annexed from the annexing municipality by a

publicly owned county park; a right - of - way

for a highway, road, railroad, canal, or

utility; or a body of water , watercourse, or

other minor geographical division of a

similar nature, running parallel with and

between the territory sought to be annexed

and the annexing municipality, shall not

prevent annexation under this act, provided

the presence of such a divisi on does not, as

a practical matter, prevent the territory

sought to be annexed and the annexing

municipality from becoming a unified whole

with respect to municipal services or

prevent their inhabitants from fully

associating and trading with each other,

s ocially and economically. However, nothing

herein shall be construed to allow local

rights - of - way, utility easements, railroad

rights - of - way, or like entities to be

annexed in a corridor fashion to gain

contiguity; and when any provision or

provisions of special law or laws prohibit

the annexation of territory that is

separated from the annexing municipality by

a body of water or watercourse, then that

law shall prevent annexation under this act.

Applying this statutory definition, it was held in May v. L ee

County , 483 So. 2d 481, 482 - 483 (Fla. 2d DCA 1986):

When used in the context of municipal

annexation, the term “contiguous” has been

defined as “touching or adjoining in a

reasonably substantial . . . sense.”

Wescom, Inc. v. Woodridge Park District , 49

Ill.App.3d 903, 7 Ill.Dec. 560, 563, 364

N.E.2d 721, 724 (1977). But for the

presence of Interstate 75, May's property

would border upon the existing city limits

of Fort Myers.FN1 Ordinarily, the presence

of a road running parallel to a city's

boundary should not prevent the assimilation

of adjoining territory. People ex rel.

Strong v. City of Whittier , 133 Cal.App.

316, 24 P.2d 219 (1933); People ex rel.

Forde v. Town of Corte Madera , 115

Cal.App.2d 32, 251 P.2d 988 (1952). That

the road involved in the present case is a

limited access highway does not interfere

with our finding that May's property is

contiguous to the city boundary. Such a

determination depends upon the character of

the areas immediately adjacent to the

Interstate highway. Piester v. City of

North Platte, Lincoln County , 198 Neb. 220,

252 N.W.2d 159 (1977). A different

conclusion might be drawn if the Interstate

effectively barred all access between the

May property and the city. Cf. Town of

Boynton v. State ex rel. Davis , 103 Fla .

1113, 138 So. 639 (1932) (unimproved

property cut off from city by inlet and

occasionally inaccessible). But here,

access may be had from Colonial Boulevard,

which is not a limited access highway,

especially given May's agreement to

construct a crossove r leading to his

property.

FN1. At the time May submitted his petition

to the city, the southeast corner of the

existing city limits and the northwest

corner of May's property abutted the I -

75/Colonial Boulevard interchange. There is

some dispute whether parcels which only

“corner” upon one another may be considered

“contiguous.” See People ex rel. Hanrahan

v. Village of Wheeling , 42 Ill.App.3d 825, 1

Ill.Dec. 524, 356 N.E.2d 806 (1976). But

see Clements v. Crawford County Bank , 64

Ark. 7, 40 S.W. 132 ( 1897); Kalb v. City of

West Helena , 249 Ark. 1123, 463 S.W.2d 368

(1971). However, in the interim between the

initial petition and the circuit court

decision, another tract of land located

immediately across the Interstate from May's

parcel, and south of Colonial Boulevard, was

annexed by the city. That annexation does

not appear to have been contested. Thus,

May's property and the present city limits

do not merely “corner.”

55 . Unlike the definition in the annexation statute, there

is nothing in Sect ion 190.005(1)(b) suggesting that the usual

definition of "contiguous" should not apply.

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

county and each municipality described in the preceding

paragraph to conduct a public hearing "to consider the

relationship of the petition to the factors specified in

paragraph (e)." Those governments may then present resolutions

to FLWAC supporting or objecting to granting the petition based

on those factors.

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

a DOAH ALJ conduct a local 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

58 . Sectio n 190.005(1)(e), Florida Statutes, provides that

FLWAC consider the entire record of the local hearing, the

transcript of the hearing, any resolutions adopted by local

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 in consistent with 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 suff iciently

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. Whe ther the community development

services and facilities of the district will

be incompatible with the capacity and uses

of existing local and regional community

development services and facilities.

6. Whether the area that will be served by

the district is amenable to separate

special - district government.

59 . A s to the second factor, consistency with the FLUM of

the local comprehensive plan has been considered in local public

hearings under Section 190.005, Florida Statutes. Cf. , e.g. , In

Re: Establishme nt by Rule of the Brooks o f Bonita Springs

Community Development Distric t , DOAH Case No. 97 - 3367 , 1997 WL

1053424 (Dec. 17, 1997 )(examining in detail consistency with

local comprehensive plan, including the FLUM). But Section

190.002(2)(d), Florida Statut es, states the policy of the State

to be: " That the process of establishing such a district

pursuant to uniform general law be fair and based only on

factors material to managing and financing the service - delivery

function of the district, so that any mat ter concerning

permitting or planning of the development is not material or

relevant. " Reading the two statutes in pari materia , it must be

concluded that the FLUM inconsistency in this case does not

preclude establishment of a CDD.

60 . I n the context of establishment of a CDD, the third

factor requires the lands to be "sufficiently contiguous to be

developable as one functional interrelated community . " Unlike

the use of the word "contiguous" in Section 190.005(1)(b), t his

context suggest s an enlargem ent of the usual definition of

"contiguous" or, perhaps , allowance of a wider - than - usual

boundary, similar to the definition of "contiguous" in the

annexation statute. In support of that construction of the

statute, t he Petitioner cites to several example s of previous ly -

established CDD s where lands included in the CD D actually were

not "contiguous " in the usual sense of touching .

COMPARISON OF INFORMATION IN RECORD TO APPLICABLE LAW

A. Procedural Requirements

61 . The evidence was that the Petition, a s supplemented

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

required attachments; and that the statutorily - required notice

of the local public hearing was published. A $15,000 filing was

paid, and a copy of the Petition was submitted, to Volus ia

County and to the City of Port Orange. N o filing fee was paid,

or copy of the Petition submitted, to the City of New Smyrna

Beach. But the County - owned Pioneer Trail right - of - way

separates the proposed district from the City of New Smyrna

Beach, that municipality's boundaries are not technically

"contiguous with," in the usual sense of physically touching,

"the land within the external boundaries of the district." A s

discussed, supra , unlike in the context of Section

190.005(1)(e)3., there is no justi fication in Section

190.005(1)(b) for enlarging the definition of "contiguous"

beyond the usual definition of touching. For that reason, the

Petitioner was not required to pay the filing fee, or submit a

copy of the Petition to, the City of New Smyrna Bea ch .

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

62 . The evidence was that the statements in the Petition

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

correct , excepting the conclusive allegation that it should be

gr anted according to the factors listed in Section

190.005(1)(e), Florida Statutes, which must be discussed

further, infra .

63 . The evidence was that establishment of the proposed

CDD is consistent with the portions of the City of Port Orange

Comprehensiv e Plan " material to managing and financing the

service - delivery function of the district ." § 190.002(2)(d),

Fla. Stat. It does not appear from the evidence that

establishment of the proposed CDD is consistent with the FLUM of

the City of Port Orange Comp rehensive Plan , but " any matter

concerning permitting or planning of the development is not

material or relevant ." Id. It appears from the evidence that

establishment of the proposed CDD would be consistent with the

State Comprehensive Plan, unless at od ds with State plans to

purchase the 450 acres east of I - 95. But those inconsistencies

also would appear to be a " matter concerning permitting or

planning of the development [which] is not material or

relevant ." Id.

64 . 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."

65 . The evidence was that the 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 .

66 . 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

development services and facilities.

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

by the proposed CDD is amenable to separate special - district

government.

CONCLUSION

Section 190.005(1)(e), Florida Statutes, states t hat FLWAC

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

transcript of the hearing, resolutions adopted by local general -

purpose governments," and the factors listed in that

subparagraph. Based on the record evidence, as supplemented and

corr ected, 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

establish the proposed Pioneer Community Development District by

rule , unless establi shment would be at odds with State plans to

purchase the 450 acres east of I - 95 . 5

DONE AND ENTERED this 21st day of September , 2005, in

Tallahassee, Leon County, Florida.

S

J. LAWRENCE JOHNSTON

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 Hearing s

this 21st day of September, 2005 .

ENDNOTES

1/ All references to Florida Statutes are to the 2004

codification.

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

local public h earing "shall be conducted . . . in conformance

with the applicable requirements and procedures of the

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

judicial, adversarial proceeding under Sections 120.569 and

120.57, Florida Statutes, for re solution of factual disputes.

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

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

Florida Statutes, describes the Rulemaking Record as including:

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

these reasons, a recommended order with findings of fact and

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

report which constitutes the hearing summary portion of the

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

3/ By the terms of the PUD, if development has not commenced on

or before July 31, 2004, the PUD expires, becomes null and void,

and has no further effect on the PUD property. "Development" is

defined to "include, but not be lim ited to, submission of plans

for subdivision of all or a part of the PUD Property,

application for permits . . . for installation of improvements

or infrastructure which will implement the PUD Development

Agreement, C[onceptual] D[esign] P[lan] or an y othe r

'Development' as that term is applied by the Administrative

Official." In light of testimony on behalf of the Petitioner

that the PUD is "applicable," it is assumed that it has not

expired.

4/ Section 190.002(2)(d), Florida Statutes, states the poli cy

of the State to be: "That the process of establishing such a

district pursuant to uniform general law be fair and based only

on factors material to managing and financing the service -

delivery function of the district, so that any matter concerning

perm itting or planning of the development is not material or

relevant."

5/ For purposes of drafting such a rule, the legal description

may be found in Petition Exhibit 2 to the Petition, which is the

Petitioner's Hearing Exhibit 2 .

COPIES FURNISHED :

M ichael P. Hansen, Secretary

Florida Land and Water Adjudicatory Commission

The Capitol, Suite 1802

Tallahassee, Florida 32399 - 0001

Barbara Leighty, Clerk

Growth Management and Strategic Planning

The Capitol, Room 1802

Tallahassee, Florida 32399 - 0001

Ra quel A. Rodriguez, General Counsel

Office of the Governor

The Capitol, Suite 209

Tallahassee, Florida 32399 - 1001

Heidi Hughes, General Counsel

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399 - 2100

Jonathan T. Joh nson, Esquire

Paula M. Sparkman, Esquire

Hopping, Green, & Sams, P.A.

Post Office Box 6526

Tallahassee, Florida 32314 - 6526