05-004017 In Re: Petition For Rule Creation - Twin Creeks Community Development District vs. * Status: Closed Recommended Order on Friday, March 24, 2006.

Summary: The petition and the local public hearing met all applicable statutory and rule criteria.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: PETITION FOR RULE )

CREATION - TWIN CREEKS )

COMMUNITY DEVELOPMENT DISTRICT. ) Case No. 05 - 4017

)

ADMINISTRATIVE LAW J UDGE'S REPORT TO THE FLORIDA LAND

AND WATER ADJUDICATO RY COMMISSION

Pursuant to Section 190.005(1)(d), Florida Statutes, 1/ a

local public hearing was conducted on February 13, 2006, before

Bram D.E. Canter, an Administrative Law Judge of the Division of

Administrative Hearings (DOAH), a t the St. Johns County Library

in St. Johns County, Florida.

The hearing was conducted for the purpose of taking

testimony and public comments and receiving exhibits on the

Petition of EH/Transeastern, LLC (Petitioner), to establish the

Twin Creeks Com munity Development District (District). This

Report of the public hearing and the hearing record is made for

the consideration of the Florida Land and Water Adjudicatory

Commission (Commission) in its determination whether to adopt a

rule to establish the District.

STATEMENT OF THE ISSUES

The issues to be addressed are whether the Petition to

establish the District meets the criteria set forth in Section

190.005, Florida Statutes, and whether the hearing process has

been cond ucted in accordance with the requirements of Section

190.005, Florida Statutes, and Florida Administrative Code Rule

Chapter 42 - 1.

APPEARANCES

For the Petitioner:

Jonathan T. Johnson, Esquire

Hopping Green & Sams, P.A.

123 South Calhoun Street

Post Office Box 6526

Tallahassee, Florida 32314

PRELIMINARY STATEMENT

On October 13, 2005, the Petitioner filed its Petition to

establish the District with the Secretary of the Commission.

The Petitioner provided a copy of the Petition and its

att achments, along with the requisite filing fee, to St. Johns

County. A copy of the Petition, including its attachments, was

received into evidence as Petitioner’s Composite Exhibit A.

On October 26, 2005, the Secretary of the Commission

certified that the Petition contained all required elements and

forwarded the Petition to DOAH for the purpose of holding the

public hearing required under Section 190.005(1)(d), Florida

Statutes. A copy of the Secretary’s certification as to the

completeness of the Petiti on and referral to DOAH was received

into evidence as Petitioner’s Supplemental Exhibit E.

The Petitioner published notice of the local public hearing

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

proofs of publication were received i nto evidence as

Petitioner's Composite Exhibit C.

The land to be included within the proposed District is

located entirely within the boundaries of unincorporated

St. Johns County. Section 190.005(1)(c), Florida Statutes,

provides that the County and the municipality containing all or

a portion of the lands within the proposed District has the

option to hold a public hearing within 45 days of the filing of

a petition. St. Johns County opted not to hold a hearing.

At the local public hearing held on Febr uary 13, 2006, the

Petitioner presented the testimony of Wayne R. Janzik, President

of EH/Transeastern, LLC; Douglas Davis, Jr., an expert in civil

engineering; Donald V. Fullerton, an expert in state and local

comprehensive planning; and James A. Perry, a n expert in

economic analysis and special district government. The

Petitioner's Exhibits A through C were received into evidence at

the hearing, and Exhibits D through G were admitted as

supplemental filings to the record.

Other than the Petitioner's co unsel and witnesses, only

three unidentified persons attended the public hearing. None

wished to make an oral or written statement for the record.

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

open for ten days for submittal of written comme nts from the

public in support of or in opposition to the Petition, as

allowed by Florida Administrative Code Rule 42 - 1.012. No

written statements were submitted to DOAH.

The one - volume Transcript of the local public hearing was

filed with DOAH on March 7, 2006. The Petitioner timely

submitted a proposed report which was considered in the

preparation of this Report.

SUMMARY OF THE HEARING AND RECORD

A. Whether all statements contained within the

Petition have been found to be true and correct.

1. Witn ess Janzik stated that he had reviewed the contents

of the Petition, as modified at the hearing, and approved its

findings. He also generally described the attachments to the

Petition. Witness Janzik stated that the Petition and its

attachments, as modif ied and admitted into evidence as Composite

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

2. Witness Janzik provided two additional consents from

new landowners who purchased a portion of the property proposed

to be included in the Distri ct. Witness Janzik stated that the

Petition included true and correct written consents to establish

the proposed District from 100 percent of the owners of the real

property located within the boundaries of the proposed District.

3. Witness Janzik stated 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 Paul Leikert, Jason Eisner, Robert Krief, Mark Newton, and

Wayne Janzik. Each of these ind ividuals is a citizen of the

United States and resides in the State of Florida.

4. Witness Davis, an expert in civil engineering, stated

that he had assisted with the preparation of the Petition and

its attachments. Witness Davis generally described the services

and facilities the proposed District is expected to provide and

stated that he approved the Petition’s findings.

5. Witness Perry, an expert in the field of economic

analysis and special district government, stated that he was

familiar with the P etition and its attachments. Witness Perry

stated that Exhibit 8 to the Petition, the Statement of

Estimated Regulatory Costs, was true and correct to the best of

his knowledge.

6. The Petitioner has demonstrated that the statements

contained within the Petition and its applicable exhibits, as

modified, are true and correct. No statement within the

Petition or its attachments was disputed.

B. Whether the establishment of the District is

inconsistent with any applicable element or

portion of the State C omprehensive Plan or of the

effective local government comprehensive plan.

7. Witness Fullerton, an expert in the field of state and

local comprehensive planning, reviewed the proposed District in

light of the requirements of the State Comprehensive Pla n,

Chapter 187, Florida Statutes. He stated that there are two

subjects of the State Comprehensive Plan that directly apply to

the establishment of the proposed District, as well as the

policies supporting those subjects. He identified some errors

in his pre - filed testimony regarding the numbering of the

referenced policies of the State Comprehensive Plan, and he

corrected the errors on the record.

8. Subject 15, "Land Use," recognizes the importance of

enhancing the quality of life in Florida by ensuri ng 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 a nd help provide

infrastructure in an area which can accommodate development

within the area in a fiscally responsible manner.

9. Subject 25, "Plan Implementation," requires that

systematic planning be incorporated into all levels of

government throughout the State. 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 faciliti es authorized under

Chapter 190, Florida Statutes, subject to and not inconsistent

with the local government comprehensive plan and land

development regulations. Additionally, District meetings are

publicly advertised and are open to the public so that a ll

District property owners and residents can be involved in

planning for improvements.

10. Witness Perry stated that from an economic

perspective, three subject areas of the State Comprehensive Plan

are particularly relevant: Subject 15, "Land Use"; Sub ject 17,

"Public Facilities"; and Subject 20, "Governmental Efficiency."

11. He echoed the opinion of Witness Fullerton that, with

regard to Subject 15, "Land Use," the proposed District can

accomplish the State land use goal of guiding development to

are as which have the service capacity to accommodate growth.

12. Subject 17, "Public Facilities," aims to protect the

substantial investments and public facilities that already exist

and plan for future facilities to serve Florida residents. The

proposed Di strict will provide its improvements and facilities

at no capital costs to the County. This allows the County to

focus its time and resources on other priorities.

13. 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 proposed District will be professionally managed, financed,

and governed by those whose propert y directly receives the

benefits of the services and facilities provided. Further, the

development of the property does not burden the general taxpayer

with the costs for services or facilities provided within the

District.

14. Witness Fullerton stated h e reviewed the proposed

District in light of the relevant portions of the St. Johns

County Comprehensive Plan. It was his opinion that the proposed

District will serve as an alternative provider of the required

infrastructure systems and services to meet the needs of the

lands within its boundaries. He believes the District will

provide needed infrastructure facilities and services without

burdening the fiscal resources of the County. He also opined

that the establishment of the District is consistent wi th and

will further the applicable policies and objectives of the

St. Johns County Comprehensive Plan.

15. The Petitioner has demonstrated that the proposed

District will not be inconsistent with any applicable element or

portion of the State Comprehensiv e Plan or the St. Johns County

Comprehensive Plan.

16. Witness Davis stated that the establishment of the

proposed District would not be inconsistent with the Twin Creeks

Development of Regional Impact Development Order.

C. Whether the area of land with in the proposed District

is of sufficient size, is sufficiently compact, and

is sufficiently contiguous to be developable as one

functional interrelated community.

17. Testimony on this factor was provided by witnesses

Davis, Fullerton, and Perry. The ap proximately 3,050 acres that

comprise the proposed District are contiguous. There are no

out - parcels. All of the land in the proposed District is part

of the Twin Creeks Development of Regional Impact.

18. The lands to be included within the proposed Dis trict

have sufficient infrastructure needs to be developable as a

functionally interrelated community. The necessary

infrastructure can be provided by the proposed District in a

cost - effective manner based on the specific design of the

community.

19. The size of the proposed District is sufficient to

accommodate the basic infrastructure facilities and services

typical of a functionally interrelated community. The proposed

facilities can be provided in an efficient, functional and

integrated manner. Witne ss Fullerton stated that the stormwater

management and utility systems are designed and being permitted

as one interrelated, linked system.

20. Compactness relates to the location in distance

between the lands and land uses within a community. The

communi ty is sufficiently compact to be developed as a

functionally interrelated community. The compact configuration

of the lands will allow the District to provide for the

installation and maintenance of its infrastructure in a long -

term, cost - effective manner .

21. The Petitioner has demonstrated that the 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.

D. Whether the prop osed District is the best alternative

available for delivering community development services

and facilities to the area that will be served by the

District.

22. Installation and maintenance of infrastructure systems

and services by the proposed 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.

23. Two alternatives to the establishment of the District

were identified. The planned facilities and services could be

provided by St. Johns County, either directly or through an

municipal services benefit unit; or could be provided by the

developer through a property owner’s association or a

homeowner ’s association. However, the developer does not have

the ability to finance the facilities and services, and the

St. Johns River Water Management District prefers community

development districts over homeowner's associations as operating

entities.

24. The proposed District would be governed by and managed

by its own board, thereby allowing greater focus on the needs of

the residents of the District and its facilities and services.

25. The costs for the operation and maintenance of the

proposed District's f acilities are expected to be paid through

assessments to ensure that the property or person receiving the

benefit of district services will pay for the services.

26. From an engineering perspective, the proposed District

is the best alternative to provide the proposed community

services and facilities to the land included in the proposed

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

capable of maintaining the facilities over their expected life.

27. The Petitioner has demonstrated that the pr oposed

District is the best alternative available for delivering

community development services and facilities to the area that

will be served by the District.

E. Whether the community development services and

facilities of the proposed District will be i ncompatible

with the capacity and uses of existing local and

regional community development services and facilities.

28. The proposed District's facilities and services to be

provided within the boundaries of the District will not

duplicate any existing r egional services or facilities which are

provided by another entity, because none of the proposed

services or facilities is presently being provided by another

entity.

29. The Petitioner has demonstrated that the community

development services and faciliti es of the proposed District

will not be incompatible with the capacity and uses of existing

local and regional community development services and

facilities.

F. Whether the area that will be served by the proposed

District is amenable to separate special - district

government.

30. As stated previously, from the perspectives of

planning, economics, engineering, and special - district

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

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

suff iciently contiguous to be developed as a functionally

interrelated community. The community that would be served by

the District's facilities needs basic infrastructure systems to

be provided.

31. The Petitioner has demonstrated that the proposed

Distric t is amenable to separate special - district government.

G. Other requirements imposed by statute or rule.

32. The Commission certified that the Petition to

Establish the Twin Creeks Community Development District

contains all the information required by S ection 190.005(1)(a),

Florida Statutes. The undersigned also finds that the Petition

contains all required information.

33. Section 190.005(1)(a), Florida Statutes, requires the

Petition to include a Statement of Estimated Regulatory Costs in

accordance with the requirements of Section 120.541, Florida

Statutes. The Statement of Estimated Regulatory Costs in the

Petition contains an estimate of the costs and benefits to all

persons directly affected by the proposed rule to establish the

District -- the Sta te of Florida and its citizens, the County and

its citizens, the Petitioner, and consumers.

34. 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.

35. Administrative costs incurred by the County related to

rule adoption should be mi nimal and are offset by the required

filing fee of $15,000 to St. Johns County. Benefits to the

County will include improved planning and coordination of

development, without incurring any administrative or maintenance

burden for facilities and services w ithin the proposed District,

except for those the County chooses to accept.

36. Consumers will pay non - ad valorem or special

assessments for the District's facilities. Generally, District

financing will be less expensive than maintenance through a

propert y owners' association 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 - sp onsored improvements to the area on a

timely basis, and greater control over community development

services and facilities within the area.

37. Section 190.005(1)(d), Florida Statutes, requires the

Petitioner to publish notice of the local public hearing i n a

newspaper of general circulation in St. Johns County for four

consecutive weeks prior to the hearing. The notice was

published in the St. Augustine Record , a newspaper of general

paid circulation in St. Johns County, for four consecutive weeks

on Janu ary 16, January 23, January 30, and February 6, 2006.

H. Public comment regarding the establishment of the

District.

38. No member of the public offered an oral or written

statement at the public hearing, and no written statements were

submitted after t he hearing.

CONCLUSIONS OF LAW

39. This proceeding is governed by Chapter 190, Florida

Statutes, which establishes an exclusive and uniform method for

the establishment of a community development district with a

size of 1,000 acres or more, and the r ules of the Commission.

40. The Petition contained all the information required by

Section 190.005(1), Florida Statutes, and St. Johns County was

paid the required filing fee.

41. The local public hearing was properly noticed by

newspaper publications in St. Johns County as required by

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

42. The required local public hearing was held and

affected units of general - purpose local government and the

general public were afforded an opportunity to comment on the

proposed D istrict as required by Section 190.005(1)(d), Florida

Statutes, and Florida Administrative Code Rule 42 - 1.012.

43. The Petition contains a Statement of Estimated

Regulatory Costs in accordance with the requirements of Section

120.541, Florida Statutes.

44. The Petitioner demonstrated that the Petition

favorably addresses all the factors set forth in Section

190.005(1)(e), Florida Statutes.

CONCLUSION

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

Commission "shall consider the entire record of t he 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 corrected

and supplemented, the Petition meets all statutory requirem ents,

and there appears no reason not to grant the Petition to

establish by rule the proposed Twin Creeks Community Development

District.

DONE AND ENTERED this 24th day of March, 2006, in

Tallahassee, Leon County, Florida.

S

BRAM D. E. CANTER

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 C lerk of the

Division of Administrative Hearings

this 24th day of March, 2006.

ENDNOTE

1/ All references are to Florida Statutes (2005).

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, Room 1802

Tallahassee, Florida 32399 - 0001

Raquel Rodriguez, General Counsel

Office of the Governor

The Capitol, Suite 209

Tallahassee, F lorida 32399 - 1001

Jonathan T. Johnson, Esquire

Hopping, Green & Sams, P.A.

123 South Calhoun Street

Post Office Box 6526

Tallahassee, Florida 32314

David Jordan, General Counsel

Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 325

Tall ahassee, Florida 32399 - 2100