05-003553 In Re: Petition For Rule Creation - Madeira Community Development District vs. * Status: Closed Recommended Order on Thursday, December 29, 2005.

Summary: Petitioner satisified all requirements for creation of new community development district in the City of St. Augustine.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: PETITION FOR RULE )

CREATION – MADEIRA )

COMMUNITY DEVELOPMENT ) Case No. 05-3553

DISTRICT. )

____________________________ )

ADMINISTRATIVE LAW JUDGE'S REPORT TO THE FLORIDA LAND

AND WATER ADJUDICATORY COMMISSION

On November 15, 2005, a local public hearing under

Section 190.005(1)(d), Florida Statutes (2004), 1 was conducted by

Donald R. Alexander, Administrative Law Judge of the Division of

Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Jonathan T. Johnson, Esquire

Wesley S. Haber, 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) is whether to grant the Petition to Establish

the Madeira Community Development District (Petition). The

local public hearing was for the purpose of gathering

information in anticipation of quasi-legislative rulemaking by

FLWAC.

PRELIMINARY STATEMENT

The Petition was filed by Ponce Associates, LLC, with the

Secretary of FLWAC on August 20, 2005. It requested that FLWAC

adopt a rule to establish a community development district known

as Madeira Community Development District on certain property in

the City of St. Augustine (City). Prior to this time,

Petitioner provided for delivery of a copy of the Petition and

its attachments, along with the requisite filing fee, to the

City and St. Johns County.

On September 26, 2005, the Secretary of FLWAC certified

that the Petition contained all required elements and forwarded

the Petition to DOAH for the purpose of conducting a local

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

The local public hearing was scheduled at 1:00 p.m.,

Tuesday, November 15, 2005, in the Lightner Building, St.

Augustine, Florida. Notice of the hearing was published in

accordance with Section 190.005(1)(d), Florida Statutes. On

November 10, 2005, Petitioner pre-filed the testimony of its

witnesses.

At the local public hearing, Petitioner presented the

testimony of John C. Kunkel, Chief Operating Officer of Stokes

Land Group; Karen M. Taylor, an expert in local and regional

comprehensive planning; Susan L. Rudd, with the firm of Hill,

Boring, Dunn & Associates, Inc., an expert in civil engineering;

and William J. Rizzetta, with the firm of Rizzetta & Company,

Inc., an expert in the field of economics and financial analysis

and special district government operation and establishment.

Petitioner also offered Petitioner's Exhibits A through Q, which

were received into evidence at the hearing. A list of all of

Petitioner's Exhibits is attached to this Report as Appendix A.

Four members of the public attended the hearing and

provided oral comments. They included M. Lea Meadows,

Peter Grant, Kris Shreiner, and Margo Geer. Mr. Grant offered

Grant Exhibits 1 and 2, while Ms. Meadows offered Ulanowicz

Exhibit 1, which is a copy of an email and letter authored by

Mr. Robert E. Ulanowicz, who did not attend the hearing. Those

exhibits were received in evidence. In addition, St. Johns

County sent a representative, Isabelle C. Lopez, Senior

Assistant County Attorney, to the hearing for the purpose of

reading a Motion passed by the Board of County Commissioners.

The Motion has been received as County Exhibit 1 and is

addressed in greater detail in this Report. A list of the non-

parties' exhibits is attached to this Report as Appendix B.

After the close of the hearing, the record was left open

for ten days for submission of any additional written statements

in support of or in opposition to the Petition, as allowed by

Florida Administrative Code Rule 42-1.012(3). Additional

written statements in opposition to the Petition were filed by

Peter Grant, M. Lea Meadows, Robert E. Ulanowicz, and

Gina Burell. Affidavits in response to those statements were

filed by William J. Rizzetta, Susan L. Rudd, John C. Kunkel, and

Karen M. Taylor on December 8, 2005. The Transcript of the

local public hearing was filed on December 14, 2005. Finally,

on December 14, 2005, M. Lea Meadows filed a second written

statement. Petitioner's Motion to Strike Untimely Public

Filings is hereby granted, and Ms. Meadows' untimely statement

has been disregarded.

SUMMARY OF RECORD

A. Petition and Related Matters

1. Petitioner is seeking the adoption of a rule by FLWAC

to establish a community development district proposed to

consist of approximately 1,006.5 acres located entirely within

the boundaries of the City. (The original Petition described

the size of the proposed District as approximately 1,010 acres.

However, Petitioner later amended the District's legal

description and removed a condominium known as the Tennis

Village Condominiums from within its boundaries.) The suggested

name for the proposed District is the Madeira Community

Development District. The Petition states in relevant part that

there are no out-parcels within the area to be included in the

proposed District; that Petitioner has obtained written consent

to establish the District; that five persons who are residents

of the State of Florida and are citizens of the United States

have been designated to serve on the Board of Supervisors; that

the lands to be included in the District are zoned Planned Unit

Development (PUD); and that there are no existing major trunk

water mains and wastewater interceptors within the currently

undeveloped lands proposed to be included within the District.

It also states that the estimated cost of the infrastructure

facilities and services which are presently expected to be

provided to the lands within the District was included in the

Petition.

2. The sole purpose of this proceeding was to consider the

establishment of the District as proposed by Petitioner.

Matters relating to land use approvals, land use changes, the

highest and best use of the property proposed to be included in

the District, and environmental permitting matters are not

within the scope of the proceeding. See § 190.002(2)(d), Fla.

Stat. ("any matter concerning permitting or planning of the

development is not material or relevant" to the "process of

establishing such a district").

B. Whether all statements contained within the Petition

have been found to be true and correct.

3. Petitioner's Composite Exhibit A was identified for the

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

Exhibits 1-8) as filed with FLWAC.

4. Witness Kunkel testified that he had reviewed the

contents of the Petition, as modified at the hearing, and

approved its findings. Witness Kunkel also generally described

the attachments to the Petition. Finally, Witness Kunkel

testified that the Petition and its attachments, as modified ,

and admitted into evidence as Composite Exhibit A are true and

correct to the best of his knowledge.

5. Witness Rudd testified that she had assisted with the

preparation of Petition Exhibits 2, 3, 5, 6, and 7. Witness

Rudd generally described the services and facilities the

District is expected to provide. Witness Rudd testified that

the attachments to the Petition, specifically Exhibit 7 to the

Petition which was admitted into evidence, were reasonable

estimated construction costs based on her experience.

6. Witness Rizzetta, a witness qualified as an expert in

special district operations and management and analysis,

testified that his firm had prepared Exhibit 8 to the Petition,

the Statement of Estimated Regulatory Costs (SERC). Witness

Rizzetta also testified that the SERC complied with the

requirements of Section 120.541(2)(f), Florida Statutes.

7. Witness Kunkel testified that the Petition, as amended,

included true and correct written consents 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.

8. Witness Kunkel further testified that the Petition

included the names of the Board of Supervisors of the proposed

District. The five persons designated to serve as the initial

Board of Supervisors are J. Kevin Setzer, Chris Vanzant,

Barbara Moore, Bill Brown, and Gary B. Davenport. However,

witness Kunkel requested that J. Kevin Setzer be replaced with

Cindy Norman and asked that the Petition be amended to reflect

this change. This request was granted. Each of these

individuals is a citizen of the United States and a resident of

the State of Florida.

9. The Petition and its applicable exhibits, as modified

at hearing and through post-hearing submissions, are true and

correct.

C. Whether the establishment of the District is

inconsistent with any applicable element or portion of the State

Comprehensive Plan or of the effective local government

comprehensive plan.

10. Witness Taylor, an expert in the field of local and

regional comprehensive planning, reviewed the proposed District

in light of the requirements of the State Comprehensive Plan

codified in Chapter 187, Florida Statutes.

11. Witness Taylor testified that she reviewed the

Petition and that the establishment of the District is not

inconsistent with the State Comprehensive Plan.

12. According to Ms. Taylor, two subjects of the State

Comprehensive Plan apply directly to the establishment of the

proposed District as do the policies supporting those subjects.

13. First, Subject 15, Land Use (Section 187.201(15),

Florida Statutes), recognizes the importance 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. 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 area in a fiscally responsible manner.

14. Second, Subject 25, Plan Implementation (Section

187.201(25), Florida Statutes), requires that systematic

planning shall be incorporated into all levels of government

throughout the State. This goal encourages intergovernmental

coordination. The proposed District is consistent 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

Statutes, 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 can be involved in planning for improvements.

15. Witness Taylor also testified that she reviewed the

relevant portions of the effective local comprehensive plans in

light of the establishment of the proposed District.

Specifically, she testified that she reviewed both the St. Johns

County and the City Comprehensive Plans. Both plans were

reviewed because, although the property has been annexed into

the City and PUD zoning was adopted by the City, the City has

not yet amended its Comprehensive Plan. Therefore, the project

is governed by the St. Johns County Comprehensive Plan. See

§ 171.062(2), Fla. Stat. ("If the area annexed was subject to

county land use plan and county zoning or subdivision

regulations, these regulations remain in full force and effect

until the municipality adopts a comprehensive plan amendment

that includes the annexed area.") Additionally, because the

City's land development regulations reference its Comprehensive

Plan, the project needs to be reviewed under these guidelines as

well. Witness Taylor opined that the establishment of the

proposed District is not inconsistent with either the St. Johns

County or the City's Comprehensive Plans. Additionally, the

Director of Planning and Building for the City sent a letter to

Petitioner stating that the City "will adopt amendments to the

Future Land Use Map that assign a future land use designation to

areas of the city that do not have a city designated land use,

such as the Madeira at St. Augustine project." The letter

further provides that, "[i]n the interim, the Madeira at St.

Augustine project has an approved development plan, consistent

with the St. Johns County Comprehensive Plan, for which

development can occur."

16. Witness Taylor identified certain provisions in the

St. Johns County Comprehensive Plan that would be furthered upon

the establishment of the District. They include Goal H.1, which

requires the orderly and efficient provision of infrastructure

facilities and services such as sanitary sewer, potable water,

drainage, roads, utilities, recreation, and open space.

(However, the witness did not identify in which element of the

Comprehensive Plan the Goal is found.) According to Ms. Taylor,

the proposed District furthers this provision because it will

provide these types of improvements in an efficient and cost-

effective manner to the lands within the boundaries of the

proposed District. In addition, Objective H.1.7 requires the

County to manage fiscal resources in a manner sufficient to

ensure the provision of needed infrastructure. (Again, the

witness did not identify in which element of the Comprehensive

Plan the Objective is found.) Once established, the proposed

District would provide the required infrastructure within its

boundaries without reducing the fiscal resources of the County

or decreasing the County's bonding limits. Also, Objective

H.1.8 (which is not further identified) requires future

development in the County to pay its fair share of the cost of

new infrastructure. The proposed District would finance the

necessary improvements, and the landowners and residents of the

proposed District who benefit from these improvements would then

pay for the improvements in the form of special and/or non-ad

valorem assessments. Finally, Goal G.1 (not otherwise

identified) directs the County to work cooperatively with other

units of government to address issues and concerns. Mechanisms

such as interlocal agreements can ensure that the proposed

District and the County work together and coordinate the

construction, maintenance, and management of the required

improvements.

17. Additionally, witness Taylor identified provisions of

the City's Comprehensive Plan that are furthered by the

establishment of the District.

18. First, witness Taylor referred to a Capital

Improvements Element Goal in the City's Comprehensive Plan,

identified by her as "CI Goal 9J5.016(3)(a)," 2 which she stated

requires that the City manage its financial resources to

adequately provide public facilities in a manner that protects

investments in existing facilities, maximizes the use of

Ms. Taylor also testified that the proposed District furthers

this provision because it will provide facilities in an

efficient manner, maximize the use of existing facilities, and

promote an orderly and compact growth.

19. Next, the witness referred to Capital Improvements

Element Objective 3, which provides that the City shall not

issue or approve development orders or land use plan amendments,

unless the present or projected availability of financial

resources is sufficient to maintain the adopted levels of

service standards for all public facilities needed to support

the development, including existing and projected facility

needs. As to this Objective, the witness noted that the

proposed District will provide the required infrastructure

within its boundaries without using the fiscal resources of the

City and will maintain the adopted levels of service standards

for public facilities outside of the District.

20. Witness Taylor next referred to Capital Improvements

Element Objective 4, which provides that future development will

pay all proportional costs to maintain the existing adopted

level of service standards for public facilities. Ms. Taylor

indicated that the proportionate costs will include the impact

of the individual development upon the facility and services.

Further, the establishment of the proposed District will assure

that the necessary improvements are financed and the landowners

and residents of the proposed District who benefit from these

improvements will then pay for the improvements in the form of

special and/or non-ad valorem assessments.

21. An Intergovernmental Coordination Element Goal,

identified by the witness as "ICE Goal 9J5.015(3)(a)," 3 provides

that the plans and activities of the City are coordinated with

the plans and activities of other government agencies to assure

that necessary public services are provided in the most

effective and efficient manner possible, and that development in

one jurisdiction does not degrade the quality of life for

residents in adjacent jurisdictions. According to the witness,

the establishment of the District is in conformance with the

Goals, Policies, and Objectives of the St. Johns County

Comprehensive Plan, which provides for similar standards;

therefore, the establishment of this District will provide for

the coordinated plans and activities necessary to assure the

efficient provision of the necessary public services.

22. Finally, the witness referred to Intergovernmental

Coordination Element Objective 1, which provides that the City

coordinate the comprehensive plan and future amendments with the

comprehensive plans of other jurisdictions, including St. Johns

County. As to this Objective, the witness noted that future

operation of this District will be coordinated with the Goals,

Policies, and Objectives of both the St. Johns County and the

City's Comprehensive Plans.

23. Based on the evidence in the record, it appears that

the proposed District will not be inconsistent with any

applicable element or portion of the State or Local

Comprehensive Plans.

D. Whether the area of land within the proposed District

is of sufficient size, is sufficiently compact, and is

sufficiently contiguous to be developable as one functional

interrelated community.

24. Testimony on this factor was provided by witnesses

Rudd, Rizzetta, and Taylor. As noted above, the lands that

comprise the proposed District will consist of approximately

1,006.5 acres, located entirely within the borders of the City.

25. All of the land in the proposed District is part of an

approved Planned Unit Development and has been annexed into the

City.

26. Witness Rudd testified that the lands to be included

within the proposed District have sufficient significant

infrastructure needs to be developable as a functionally

interrelated community. She further testified that the

necessary infrastructure can be provided by the proposed

District in a cost-effective manner based on the specific design

of the community. Finally, she testified that the use of one

overall development plan will ensure proposed improvements are

provided in an efficient, functional, and integrated manner.

27. Witness Rizzetta testified that the proposed District

is of a sufficient size to constitute a functionally

interrelated community. He further testified that because the

proposed District will have sufficient population density and

property size, it will require the basic facilities and services

of a community. Adequate planning, design, financing,

construction, management, and maintenance are required to

provide the community with appropriate infrastructure.

28. Public comment was submitted regarding the size of the

District. Specifically, a member of the public argued that the

Petition was improperly filed with FLWAC because the District

will contain less than 1,000 developable acres. However,

Section 190.005(1), Florida Statutes, which addresses districts

of 1,000 acres or more, does not differentiate between

developable and non-developable acres. Additionally, FLWAC has

established community development districts that contain fewer

than 1,000 developable acres. Further, all of the 1,006.5 acres

are included in the PUD, are owned by Petitioner, and the

proposed District is intended to have a significant role in the

maintenance of the non-developable acres consistent with the

preferences of the St. Johns River Water Management District.

Finally, FLWAC has already determined that the Petition is

sufficient.

29. With respect to compactness, witness Rizzetta

testified that compactness measures the spatial relationship

between the lands and land uses within a community. He further

testified that the District is sufficiently compact to be

developed as one functional interrelated community. He

concluded that sufficient compactness, like that present in the

development plan for the District, allows the District to

efficiently and cost-effectively provide the proposed perpetual

maintenance of any District improvements or facilities on a long

term basis.

30. Regarding contiguity, witness Rizzetta testified that

to be sufficiently contiguous, the property must be close enough

to allow the efficient design and use of the infrastructure.

Witness Rizzetta further testified that the community included

in the District is sufficiently contiguous for planning purposes

and to allow for efficient and cohesive District governance.

31. Witness Taylor testified that the proposed District

has sufficient land area and is sufficiently compact and

contiguous to be developed with infrastructure improvements as

one functionally interrelated community. With respect to size,

witness Taylor testified that, because of its acreage, the

proposed District will have sufficient population density and

property size to require all the basic improvements of a

community. With respect to compactness, she testified that the

compact configuration of the land to be included within the

proposed District would allow the District to deliver the

proposed construction and perpetual maintenance of District

improvements in a long-term, cost-efficient manner.

32. The record shows that from engineering, economic,

management, and planning 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 community.

E. 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.

33. Witness Rizzetta indicated that it is presently

intended that the District will participate in the construction

or provision of certain infrastructure improvements as outlined

in the Petition.

34. He further stated that the installation and

maintenance of infrastructure systems and services by the

District are expected to be paid through the imposition of

special assessments, which will be borne only by property owners

within the District that benefit from the infrastructure

systems. Use of such assessments will ensure that the real

property benefiting from District services is the same property

which pays for them.

35. Witness Rizzetta identified two types of alternatives

to the establishment of the District for the purpose of

installation and maintenance of infrastructure systems. 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 property owners'

association (POA) or a homeowners' association.

36. According to Mr. Rizzetta, 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.

37. He added 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

maintenance 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.

38. Finally, Mr. Rizzetta testified that the District has

the advantage of being a unit of local government, which has

access to the tax exempt bond market. It allows the

infrastructure to be in place sooner than might happen without

the District. Additionally, the District is a long-term,

stable, perpetual entity capable of funding, constructing, and

in some cases maintaining facilities over the lifetime of the

facilities. Further, a community development district is a

preferred entity by the St. Johns River Water Management

District.

39. The record indicates that 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 that will be

served by the District.

F. Whether the community development services and

facilities of the proposed district will be incompatible with

the capacity and uses of existing local and regional community

development services and facilities.

40. Mr. Rizzetta opined 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. The District's facilities and services within the

proposed 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.

41. Therefore, 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.

G. Whether the area that will be served by the District

is amenable to separate special-District government.

42. As cited previously, Petitioner's 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 size, 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 a need for basic

infrastructure systems to be provided.

43. From planning, engineering, economic, and management

perspectives, the area that will be served by the District is

amenable to separate special-district government. The

configuration and size of the proposed District is not different

from other districts established and existing throughout the

state.

H. Other requirements imposed by statute or rule.

44. Chapter 190, Florida Statutes, and Florida

Administrative Code Chapter 42-1 impose specific requirements

regarding the petition and other information to be submitted to

FLWAC, which are discussed below.

a. Elements of the Petition

45. FLWAC has certified that the Petition meets all of the

requirements of Section 190.005(1)(a), Florida Statutes.

b. Statement of Estimated Regulatory Costs

46. The SERC contains an estimate of the costs and

benefits to 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.

47. Beyond administrative 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. The proposed District will

require no subsidies from the State.

48. Administrative costs incurred by St. Johns County and

the City related to rule adoption should be minimal and are

offset by the required filing fee of $15,000 to each of them.

Benefits to the City 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.

49. 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 POA or 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.

50. Section 190.005(1)(a), Florida Statutes, requires all

petitions to include a SERC which meets the requirements of

Section 120.541, Florida Statutes. FLWAC has already certified

the sufficiency of the Petition. The Petition contains a SERC,

which meets all requirements of Section 120.541, Florida

Statutes.

c. Other Requirements

51. Petitioner has complied with the provisions of Section

190.005(1)(b)1., Florida Statutes, in that the City and St.

Johns County were each paid the requisite filing fees of

$15,000.

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

Petitioner to publish notice of the local public hearing in a

newspaper of general circulation in the City and St. Johns

County for four consecutive weeks prior to the hearing. The

notice was published in the St. Augustine Record , a newspaper of

general circulation, for four consecutive weeks on October 18,

October 25, November 1, and November 8, 2005.

d. Local Government Support for Establishment

53. Pursuant to the requirements of Section 190.005(1)(b),

Florida Statutes, Petitioner filed a copy of the Petition and

the $15,000 filing fee with both St. Johns County and the City

prior to filing the Petition with FLWAC.

54. The St. Johns County Board of County Commissioners did

not hold a public hearing on the establishment of the District

as permitted by Section 190.005(1)(c), Florida Statutes.

However, Isabelle C. Lopez, Senior Assistant County Attorney

with St. Johns County, read aloud a Motion passed at the

September 20, 2005 Board of County Commission meeting. In

relevant part, the Motion provided that the Board did not

support the District's buying mitigated wetlands, nor paying for

any environmental hazardous material cleanup, such as arsenic on

the golf course. Petitioner has indicated that the District is

not expected to purchase wetlands. As to the cleanup issue, the

District's site formerly housed a golf course and suffers from

soil contamination. In order for the infrastructure to be

installed, the District will, by permit, necessarily have to

engage in certain environmental remediation and cleanup

measures, which have been factored into the costs of the

infrastructure projects. The power of environmental remediation

and clean up is granted to the District pursuant to Section

190.012(1)(e), Florida Statutes, and is not an optional power

which any local government may withhold from the District. See

§ 190.005(2)(d), Fla. Stat.

55. The City did not hold a public hearing on the

establishment of the District as permitted by Section

190.005(1)(c), Florida Statutes.

I. Public Comment Regarding the Establishment of the

District.

56. Public comment received during the hearing and in

letters filed after the hearing raised a wide range of issues,

some of which have already been addressed in this Report. They

include: (1) the inclusion/exclusion of the Tennis Village

Condominiums within the boundaries of the District; (2)

Petitioner's compliance with Section 190.005(1)(e)2., Florida

Statutes, which requires a determination as to whether the

establishment of the new District is inconsistent with local and

state comprehensive plans; (3) the number of developable acres

within the District; and (4) the developer's remediation of

contamination on private lots. Other issues raised include

environmental permitting issues, the impact of hurricanes on the

developed property, and the appropriateness of moving forward

with the development of the property; however, these are not

relevant to the proceedings and are therefore not addressed in

this Report. See § 190.02(2), Fla. Stat. As to the comments

which suggest that a parcel known as the Tennis Village

Condominiums was erroneously included in the land which will

form the new District, Petitioner has amended its legal

description to reflect that the Tennis Village Condominiums are

not included in the boundaries of the District. Further, a

rebuttal affidavit by witness Kunkel reflects that the

condominium project is not an exclusion surrounded by other

lands that are in the District.

APPLICABLE LAW

57. Section 190.005(1)(a)1.-8., Florida Statutes, requires

that a petition for the establishment of a community development

district must be filed with FLWAC and contain the following

information: a metes and bounds description of the external

boundaries of the proposed 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 the initial members of the board of

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

proposed district showing current major trunk water mains and

sewer interceptors and outfalls if in existence; the proposed

timetable for construction of the district services and the

estimated cost of such services; a designation 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 element of the effective local government

comprehensive plan; and a SERC. The record shows that

Petitioner filed its Petition with FLWAC which contained all of

the statutory information.

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

the petitioner pay a filing fee of $15,000.00 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 must also

serve a copy of the petition on those local, general-purpose

governments. The record shows that these requirements have been

met.

59. Section 190.005(1)(c), Florida Statutes, allows 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)." The record shows that neither local government

opted to conduct a public hearing.

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

an administrative law judge conduct a local public hearing

pursuant to Chapter 120, Florida Statutes. Such a hearing was

conducted on November 15, 2005. In addition, the same statute

requires the petitioner to cause a notice of the hearing to be

published in a newspaper of general circulation at least once a

week for four successive weeks immediately prior to the hearing.

This requirement has also been satisfied.

61. Section 190.005(1)(e)1.-6., Florida Statutes,

enumerates the factors that FLWAC must consider in determining

whether to grant or deny a petition. They include:

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

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

contiguous to be developable as one

functional interrelated community.

4. Whether the district is the best

alternative available for delivering

community development services and

facilities to the area that will be served

by the district.

5. Whether the community development

services and facilities of the district will

be incompatible with the capacity and uses

of existing local and regional community

development services and facilities.

6. Whether the area that will be served by

the district is amenable to separate

special-district government.

62. The evidence was that Petitioner has satisfied each of

the foregoing factors.

CONCLUSION

Based upon the record evidence, as supplemented and

corrected, the Petition appears to meet all statutory

requirements. Therefore, the Petition should be granted and

Petitioner authorized to establish the Madeira Community

Development District in the City of St. Augustine.

DONE AND ENTERED this 29th day of December, 2005, 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

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 29th day of December, 2005.

ENDNOTES

1/ All references are to Florida Statutes (2004).

2/ The citation for the Goal given by the witness corresponds

to Department of Community Affairs (DCA) Rule 9J-5.016(3)(b)3.

Therefore, it is likely that this citation is incorrect.

Because a copy of the pertinent portions of the City's

Comprehensive Plan was not made a part of the record, the

correct citation cannot be verified.

3/ Again, the citation for the cited Objective corresponds to a

DCA rule and is likely incorrect.

COPIES FURNISHED:

Michael 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, Suite 1802

Tallahassee, Florida 32399-0001

Raquel A. Rodriguez, General Counsel

Office of the Governor

The Capitol, Suite 209

Tallahassee, Florida 32399-0001

Heidi Hughes, General Counsel

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399-2100

Jonathan T. Johnson, Esquire

Hopping Green & Sams, P.A.

Post Office Box 6526

Tallahassee, Florida 32314-6526

Appendix A

Exhibit A - Petition to Establish the Madeira Community

Development District

Exhibit B - Ordinances 2001-11 and 2001-12, both of the City of

St. Augustine

Exhibit C - October 7, 2005 letter from DCA addressing the

petition to establish community development district

Exhibit D - Former St. Johns County Future Land Use Map

Exhibit E - Current St. Johns County Future Land Use Map

Exhibit F - Current City of St. Augustine Future Land Use Map

Exhibit G - Letter from the planning director of the City of

St. Augustine

Exhibit H - Current City of St. Augustine Zoning Map

Exhibit I - Map of the project site showing the breakdown of

acreage per land use

Exhibit J - Copy of the warranty deed evidencing title to the

property making up the District

Exhibit K - Copy of the title policy issued at the time the

current landowner purchased the property

Exhibit L - Letter from the Commission determining that the

petition was complete and sufficient

Exhibit M - Proof of publication of the public hearing

Exhibit N - Notice of Receipt of Petition

Exhibit O - Letter from St. Johns River Water Management

District

Exhibit P - Rizzetta & Company, Inc.'s company profile

Exhibit Q - Copy of the effective State Comprehensive Plan

Appendix B

Grant Exhibit 1 - Copy of slip opinion in St. Johns/St.

Augustine Committee for Conservation and Recreation, Inc. et al.

v. City of St. Augustine , 909 So. 2d 575 (Fla. 5th DCA 2005)

Grant Exhibit 2 - Map depicting soil arsenic levels on Ponce de

Leon Golf Course

Ulanowicz Exhibit 1 - Copy of email and letter dated November

15, 2005, with attachment

County Exhibit 1 - Certified copy of draft excerpt from the

September 20, 2005, Board of County Commissioners Meeting, Item

No. 9