06-000351 In Re: Petition For Rule Amendment-Villages Of Westport Community Development District vs. * Status: Closed Recommended Order on Thursday, June 22, 2006.

Summary: Petition to Amend the CDD was filed to correct an error in the legal description and add land. Except that the legal description is not clear; land that was excluded was not described, and all the consents were not provided, the amendment is acceptable.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: PETITION FOR RULE )

AMENDMENT - VILLAGES OF WESTPORT )

COMMUNITY DEVELOPMENT DISTRICT ) Case No. 06 - 0351

)

ADMINISTRATIVE LAW JUDGE'S REPORT TO

THE FLORIDA LAND AND WATER ADJUDICATORY COMMISSION

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

J. Lawrence Johnst on, an Administrative Law Judge ( ALJ) of the

Division of Administrative Hearings (DOAH), conducted a loc al

public hearing in Jacksonville , Flori da , on April 25 , 2006.

APPEARANCES

For Petitioner: Jonathan T. Johnson, Esquire

Wesley S. Haber, Esquire

Hopping Green & Sams, P.A.

123 South Calhoun Street

Post Office Box 6526

Tallahassee, Florida 32314 - 6526

STATEMENT OF THE ISSUE

At issue in this case is whether the Florida Land and Water

Adjudicatory Commission (FLWAC) should grant the Petition to

Amend the Boundary of the Villages of Westport Community

Develo pment Distric t (CDD, or District) filed on Dec ember 23,

2005 (Petition) , as amended and supplemented .

PRELIMINARY STATEMENT

On June 14, 2004 , FLWAC adopted Florida Admin istrative Code

Rule Chapter 42QQ - 1 2 establishing the CDD on land in the City of

Jacksonville, Du val County. Subsequently, it was determined

that the legal description used in the Rule establishing the

District erroneously overstated the approximate acreage within

the metes and bounds of the legal description by 37.21 acres.

In addition, the develop er acquired eight parcels of property ,

totaling approximately 164.86 acres, which the District wanted

to add to its boundaries. To correct the error in the legal

description and to add the 164.86 acres , the CDD's board of

supervisors filed the Petition.

By letter dated January 17, and filed January 26, 2006 ,

FLWAC's Secretary certified under Rule 42 - 1.009 that the

Petition contained all required elements and forwarded it to

DOAH for the local public hearing required under Section

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

On February 7, 2006, the assigned ALJ entered an Order

disclosing his former employment by the law firm representing

Petitioner and certain social interactions with counsel for

Petitioner. On February 10, 2006, the matter was scheduled for

a lo cal public hearing in Jacksonville on April 25, 2006. On

February 14, 2006, FLWAC moved to disqualify the ALJ, which was

granted, and the case was transferred to the undersigned ALJ.

The City of Jacksonville held public hearings on

January 24, Februar y 14, March 14 and March 28, 2006, and on

March 28, 2006 , passed Ordinance 2006 - 45 - E finding the Petition

to be true and correct and expressing support for the amendment

of the CDD’s boundaries. ( A copy of the City of Jacksonville’s

Ordinance 2006 - 45 - E wa s received in evidence as Hearing Exhibit

G. 3 )

On March 29, 2006, Petitioner sent FLWAC a letter

essentially amending the Petition by asking that certain pages

and exhibits of the Petition be replaced. The purpose of the

letter and replacements was to hav e the Petition reflect the

actual overstatement of the approximate acreage within the metes

and bounds legal description , which was 41.66 acres, not 37.21

acres. In addition, the developer had acquired three more

parcels which the Petitioner wanted to add to the District, for

a total of eleven parcels and 195.16 acres, instead of eight

parcels and 164.86 acres.

O n April 7, 2006 , FLWAC published a Notice of Receipt of

Petition in the Florida Administrative Weekly , as required by

Rule 42 - 1.010 .

A local public hearing was held in the City of

Jacksonville , Duval County, Florida, on April 25 , 2006. At the

hearing, Petitioner presented three witnesses: Cynthia C.

Jones, president of Intervest Construction, Inc.; Neal

Brockmeier , a licensed professional eng ineer , a Civil Department

H ead with Greenhorne & O’Mara, Inc. , and an expert in civil

engineering; and James A. Perry, of Governmental Management

Services, LLC, an expert in the field of economics and financial

analysis. Petitioner offe red Hearing Exhibit s A through J ,

which were received in evidence. No member of the public

appeared at the local public hearing.

Petitioner caused a transcript of the local public hearing

to be prepared. The Transcript was filed with DOAH on May 11 ,

2006. On June 2, 200 6, Petitioner filed a proposed

Adm inistrative Law Judge's Report to the Florida Land a nd Water

Adjudicatory Commission (proposed Report) , which has been

considered in the preparation of this Report.

SUMMARY OF PETITION AND EVIDENCE

1. As indicated in t he Preliminary Statemen t, by adopting

Rule Chapter 42QQ - 1, FLWAC established the Villages of Westport

CDD on land in the City of Jacksonville, Florida. The legal

description in Rule 42QQ - 1 .002 consisted of a sequential

combination of the legal description s of four parcels of land,

Parcel A through Parcel D. Subsequently, it was determined that

the legal description used in Rule 42QQ - 1 .002 erroneously

overstated the approximate acreage within the metes and bounds

of the legal description of Parcel A . In a ddition, the

developer had acquired additional parcels of property (Parcel E

through Parcel L) , which the District wanted to add to. To

correct the error in the legal description and to add the

additional acreage , the CDD's board of supervisors filed the

Petition.

A. Petition

2. The P etition, with 13 exhibits, was received in

evidence as Hearing Exhibit A. It sought to correct the error

in the legal description in Rule Chapter establishing the

District by subtracting 37.21 acres from the approximate acreage

said to be within the metes and bounds of the legal description

of Parcel A . In addition, it sought to add to the District

eight parcels of property acquired by the developer (Parcel E

through Parcel L), totaling approximately 164.86 acres .

3 . The Petition stated the name of the CDD but did not

list the names of the members of the board of supervisors.

Petition Exhibit 7 was the consent of Westport Villages, Inc.,

as owner, to adding Parcel E through Parcel L, which were

described in "Composit e Exhibit A" to the consent, to the

District. Petition Exhibit 9 designated future general

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

land in the future land use element of the appropriate general

purpose local government. The Petit ion did not contain a

separate map showing current major trunk water mains and sewer

in terceptors and outfalls, if any; however, attached as Exhibit

A to w itness Jones’s pre - filed testimony was a letter to FLWAC,

dated January 13, 2006, which included such a map. The Petition

stated that the time frame for the construction of the

improvements for the expansion parcels was 2006 - 2007. Petition

Exhibit 11 detailed the estimated costs of construction for the

improvements to be const ructed in the expansion par cel. In

addition, the letter dated January 13, 2006, attached as Exhibit

A to w itness Jones’s pre - filed testimony , included a more

detailed break - down of costs by year. Petition Exhibit 12 was a

Statement of Estimated Regulatory Costs (SERC).

4 . T he P etition asserted that the City of Jacksonville was

paid "the filing fee of $1,500 required pursuant to section

190.046(1)(d)2, Florida Statutes. " (Hr. Ex. A).

5 . Petitioner recognized that the Petition, as filed with

FLWAC, contained errors . To address these errors, Petitioner

sent FLWAC a letter on March 29, 2006, essentially amending the

Petition by asking that certain pages and exhibits of the

Petition be replaced. The purpose of the letter and

replacements was to have the Petition reflect the actua l

overstatement of the approximate acreage within the metes and

bounds legal description of Parcel A , which was 41.66 acres, not

37.21 acres. The letter replaced Petition Exh ibit 3 with a

legal description to reflect the correct approximate number of

acre s in Parcel A. In addition, the developer had acquired

three more parcels ( consisting of rights - of - way described as

Parcels M through O), which Petitioner also wanted to add to the

District, for a total of eleven parcels and 195.16 acres,

instead of eight parcels and 164.86 acres. The letter

supplemented Petition E xhibit 4 to add maps and legal

descriptions for Parcel M through O. The Petition replacement

pages also changed the reference to the landowners giving

consent to the amendment of the Dis trict’s boundaries from

Westport Villages, Inc. , to Morteza Hosseini Kargar and Mitchell

R. Montgomery. The letter replaced Petition Exhibit 7 to

reflect the landowner consents for Morteza Hosseini Kargar and

Mitchell R. Montgomery. However, the replacement con sents did

not address Parcel L, M, or N.

6 . The March 29, 2006 , letter describing the revisions and

supplements to the Petition was attached as Exhibit B to w itness

Jone s ’s pre - filed testimony , which was received in evidence as

Hearing Exhibit B. Witne ss Jones testified that the Petition,

and its attache d exhibits, as supplemented and revised , was true

and correct to the best of her knowledge. However, as

indicated, the replacement consents do not cover Parcel s L, M,

or N.

7 . In addition, despite th e Petition, corrections,

supplements, testimony , and hearing exhibits, it still is not

clear from the Petition, the evidence, or the Petitioner's

proposed Report , what legal description Petitioner is proposing

for the expanded District.

8 . The legal des cription in Rule 42QQ - 1 .002 consists of a

sequential combination of the legal descriptions of Parcel A

through Parcel D. The first attempt to correct the legal

description for Parcel A is contained in Petition Exhibit 3.

The second corrected legal descri ption for Parcel A may be found

in what witness Jones's pre - filed testimony refers to as Revised

[Petition] Exhibit 3, which is attached as the "Replacement for

[Petition] Exhibit 3 - Revised Legal Description for Parcel A"

to the letter dated March 29, 20 06, which is Exhibit B to

witness Jones's pre - filed testimony. The metes and bounds

description of the parcels to be added to the District are what

witness Jones's pre - filed testimony refers to as Supplemented

[Petition] Exhibit 4. It appears that Supple mented [Petition]

Exhibit 4 is supposed to consist of a sequential combination of

the legal descriptions of the first eight parcels to be added

(Parcel E through Parcel L), which may be found in Petition

Exhibit 4, together with a combination of the sequen tial legal

descriptions of the other three parcels to be added (Parcel M

through Parcel O), which may be found attached as "Supplement to

Exhibit 4 - Parcels M, N, and O " to the letter dated March 29,

2006 (which, again, is Exhibit B to witness Jones's pre - filed

testimony).

9 . However, witness Jones's pre - filed testimony also

refers to another legal description, which "shows the metes and

bounds of the amended District" -- namely, Petition Exhibit 5.

(Hrg. Ex. B, p. 2, ln. 35) This legal description is s aid to

describe the "CDD (Overall)", consisting of 1,493.006 acres,

more or less. But this legal description of the "CDD (Overall)"

is not a sequential combination of the legal descriptions of the

various individual parcels, A through O, and it is not cle ar

from the evidence that is describes the same property that would

be described in a sequential combination of the legal

descriptions of those parcels.

10 . It also should be noted that, as stated in the

Petition, "[t]here is one excluded parcel within the proposed

amended boundary of the District." While not addressed in the

evidence, it appears from Petition Exhibit 6 that the excluded

parcel is within Parcel B of the existing District although the

exclusion is not mentioned in Rule 42QQ - 1.002. Regar dless which

legal description -- the sequential combination of the legal

descriptions of Parcels A through O, or the "CDD (Overall)"

legal description -- the legal description of the District should

exclude the parcel identified in Petition Exhibit 6.

11 . W itness Perry testified that Petition Exhibit 12, the

SERC, was prepared by Carey Garl a nd of Fishkind & Associates,

Inc. Although he did not prepare the SERC, witness Perry

testified that he reviewed the SERC and that the SERC was true

and correct to the b est of his knowledge.

12 . The SERC included in the Petition contained a

discussion of the costs to government agencies, the State of

Florida , and the City of Jacksonville of implementing and

enforcing the Rule creating the District.

13 . Beyond admini strative costs related to rule adoption,

the State will incur virtually no costs from amending the

District in addition to the minimal costs already incurred from

its original creation, which are related to the incremental

costs to various agencies of revi ewing one additional local

government report. The District, as proposed to be amended,

will require no subsidies from the State.

14 . Administrat ive costs incurred by the City of

Jacksonville related to rule adoption should be minimal and are

offset by th e filing fee paid to the City of Jacksonville .

15 . Consumers choosing to buy property in the District

will pay non - ad valorem or special assessments for the District

facilities. Generally, District financing will be less

expensive than maintenance th rough a property owners'

association or capital improvements financed through developer

loans. Benefits to consumers in the area within the CDD will

include a higher level of public services and amenities than

might otherwise be available, completion of D istrict - sponsored

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

of direct control over commun ity development services and

facilities within the area. Ultimately, the property owners

within the District as well as the users of the District

facilities choose to accept the Districts costs in return for

the benefits that the District provides.

B. Whether the establishment of the District is i nconsistent

with any applicable element or portion of the State

Comprehensive Plan or of the effecti ve local government

comprehensive plan

16 . At the hearing, Petitioner introduced in evidence the

pre - filed testimony of Neal Brockmeier. In his testimony, Mr.

Brockmeier stated that the “proposed amended District is not

inconsistent with any applicable provision of the State

Comprehensive Plan. " ( Hr. Ex. H, p . 6, ln. 20 - 21).

17 . Mr. Brockmeier’s testimony identifies three goals,

which are set forth in the State Comprehensive Plan, that are

consistent with and are furthered by the Petition. The se goa l s

include Goal 15, Land Use; Goal 17, Public Facilities; and Goal

25, Plan Implementation.

18 . Additionally, Mr . Brockmeier’s testimony noted that

the “establishment of the proposed amended District is not

inconsistent with any applicable provision of the Jacksonville

2010 Comprehensive Plan.” ( Hr. Ex. H, p . 7, ln. 39 - 44. )

19 . On March 28, 2006, the City of Jacksonville City

Council passed Ordinance 2006 - 45 - E. This Ordinance was

introduced into evidence as Hearing Exhibit G. Section 1(a ) of

Ordin ance 2006 - 45 - E provides : "All statements contained within

the Petition on file as Second Revised Exhibit 1, are true and

correct." Section 1(b) of Ordinance 2006 - 45 - E provide s that the

“ amendment of the proposed District is not inconsistent with any

appl icable element or portion of the state comprehensive plan or

the adopted 2010 Comprehensive Plan.” It is not clear from the

evidence whether the Ordinance addressed the original Petition

or the Petition as revised by the letter dated March 29, 200 6 .

20 . Witness Perry , who is experienced in the financial

aspects of community development districts, testified that the

“District, as amended, will not be inconsistent with any

applicable provision of the State Comprehensive Plan.” ( Hr. Ex.

I, p. 7, ln. 16 - 17 ).

21 . Acco rding to Mr. Perry, two goals of the State

Comprehensive Plan apply directly to the boundary amendment to

the District. Specifically, Mr. Perry noted that the amendment

of the District’s boundaries furthers Goals 17 and 20 of the

State Compre hensive Plan. Goal 17, Public Facilities, directs

the state to protect the substantial investments that already

exist and plan for and finance new facilities to serve residents

in a timely, orderly and efficient manner. Goal 20, Government

Efficiency, di rects the Florida government to economically and

efficiently provide the amount and quality of services required

by the public. ( Hr. Ex. I, p. 7, ln. 35 - 39).

22 . Finally, Mr. Perry testified that the District, as

amended, will not be inconsistent with a ny of the applicable

provisions of the Comprehensive Plan for the City of

Jacksonville.

23 . Based on the testimony and exhibits in the record, the

District, as proposed to be amended, will not be inconsistent

with any applicable element or portion of th e State

Comprehensive Plan or the effective local government

comprehensive plan .

C. Whether the area of land within the proposed District is of

sufficient size, is sufficiently compact, and is

sufficiently contiguous to be developable as one functional

i nterrelated community

24 . Testimony on this factor was pro vided by witnesses

Jones, Brockmeier , and Perry. The lands that comprise the

District, as amended , consist of approximately 1,493.001 acres,

located entirely with in the borders of the City of Ja cksonville ,

Florida. All of the land in the District, as proposed to be

amended, is part of a planned community included in the Villages

of Westport Planned Unit Development .

25 . Witness Jones testified that the “amended District

will have sufficient land area, and be sufficiently compact and

contiguous to be developed, with the roadways, stormwater

management and other infrastructure systems, facilities and

services contemplated. ” ( Hr. Ex. B, p. 4, ln. 28 - 31). Ms.

Jones concluded that the “District, with the inclusion of the

Expansion parcels, will operate as one functionally related

community.” ( Hr. Ex. B, p.4, ln. 31 - 32).

26 . Witness Perry testified that the “District, as

amended, has sufficient land area, and is sufficiently compact

and contigu ous to be developed as one functional, interrelated

community . . . .” ( Hr. Ex. I, p. 4, ln. 25 - 26).

27 . Witness Brockmeier testified that with “the decrease

of 41.66 and the addition of 195.16 acres, resulting in a net

addition of 153.50 acres, more o r less, the District will remain

of sufficient size, compactness and contiguity to be developed

as an interrelated community.” ( Hr. Ex. H, p. 4, ln. 17 - 19).

28 . Based on the evidence, the area of land to be included

in the District, as proposed to be a mended, is of sufficient

size, is sufficiently compact, and is sufficiently contiguous to

be developed as a single functionally interrelated community.

D. Whether the proposed District is the best alternative

available for delivering community developm ent services and

facilities to the area that will be served by the proposed

District

29 . According to Mr. Perry, “[a]ll of the infrastructure

needed for the Expansion Parcels is the same type of

infrastructure that the District has already successfully

provided, or is in the process of providing, to the existing

District.” ( Hr. Ex. I, p.3, ln.22 - 25). Mr. Perry concluded

that the District, in his view, is “the best alternative to

provide the services and facilities needed in the Expansion

Parcels.” ( Hr . Ex. I, p. 3, ln. 31 - 32 ).

30 . Mr. Perry also testified that there are two

alternatives for providing community development services to the

expansion parcel s . First, to facilitate economic development,

accommodate new growth, and provide new services, the City could

perhaps provide the selected facilities. Second, facilities and

services might be provided by some private means, with

maintenance delegated to a property owners' association (POA).

31 . The St. Johns River Water Management District prefe rs

a CDD over a homeowner’s association or a POA , as a preferred

entity to manage the storm water system.

32 . Witness Brockmeier testifi ed that the “services and

facilities needed in the Expansion Parcels can efficiently and

effectively be provided by the existing District, as the

District has provided these same type of facilities to the lands

within it.” ( Hr. Ex. H, p. 5, ln. 14 - 16). He further testified

that the “Expansion Parcels are immediately adjacent to the

existing District, and interconnecti on of these facilities is

likely to be more efficient if the District undertakes it. "

( Hr. Ex. H, p. 5, ln. 16 - 18). Based on the foregoing, Mr.

Brockmeier concluded that the “community development district

approach is the best alternative for providing n ecessary

community development services and facilities to the area to be

served by the District, therefore creating self - sufficient

development.” ( Hr. Ex. H, ln. 3 - 5).

33 . Based on the evidence, the District, as proposed to be

amended, is the best altern ative 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 incompatible with the capacity

and uses of existing local and regional community

development services and facilities

34 . Witness Perry testified that the “District’s

facilities and services within the proposed amended boundaries

will not duplicate any available regional services or

faci lities.” ( Hr. Ex. I, p. 5, ln. 16 - 17). Thus, witness Perry

opined that “the services and facilities proposed to be provided

by the District as amended are not incompatible with the uses

and exi s ting local and regional facilities and services.” ( Hr.

Ex. I, p. 5, ln. 10 - 12).

35 . Witness Brockmeier testified that there will be no

duplication of service. He further testified that “the services

and facilities to be provided by the District as amended are not

incompatible, and in fact are fully compatible, w ith the

capacities and uses of existing local and regional community

development facilities, and with those provided by the

District.” ( Hr. Ex. H, p. 4, ln. 36 - 39).

36 . Based on the evidence, the community development

services and facilities of the Distr ict, as proposed to be

amended, will not be incompatible with the capacity and uses of

existing local and regional community development services and

facilities.

F. Whether the area that wi ll be served by the District is

amenable to separate special - dist rict government

37 . Witness Perry testified that the “addition of the

Expansion Parcels will not affect the ability of the District to

operate as a separate special district government.” ( Hr. Ex. I,

p. 5, ln. 29 - 30). Mr. Perry further explained that “ [e]xpanding

the boundaries of the existing District will only add more area

to be served by the government already in place.” ( Hr. Ex. I,

p. 5, ln. 30 - 31).

38 . Witness Brockmeier testified that the “District will

constitute an efficient mechanism for p roviding necessary

capital improvements for development of the area.” ( Hr. Ex. H,

p. 5, ln. 34 - 35). Mr. Brockmeier further noted that the

District worked in an efficient manner to provide the existing

infrastructure, and he believes that the District “is capable of

continuing to provide that infrastructure to the Expansion

Parcels.” ( Hr. Ex. H, p. 5, ln. 35 - 37). Based on this, Mr.

Brockmeier concluded that “the area identified in the petition

to be included within the District, as initially established and

as amended, is amenable to being served by a separate special

district government.” ( Hr. Ex. H, p. 5. ln. 28 - 30).

39 . Based on the evidence, the area that will be served by

the District, as amended, is amenable to being served by a

separate special district government.

G. Publication of Notice

40 . Petitioner published notice of the local public

hearing in the Florida Times - Union , which is a newspaper of

general paid circulation in the City of Jacksonville, Duval

County . The notice was published f or four consecutive weeks

prior to the hearing, on March 28, 2006; April 4, 2006;

April 11 , 2006; and April 18, 2006 .

H. Local Government Support for Establishment

41 . Petitioner fi led a copy of the Petition and a $1,500

filing fee with the City of Ja cksonville .

42 . The City of Jacksonville City Council held public

hearing s on the boundary amendment of the District, as permitted

by Section 190.005(1)(c), Flori da Statutes. As a result of

those hearing s, the City passed Ordinance 2006 - 45 - E . Section 2

of the Ordinance provides that the “Council hereby expresses its

support for the promulgation by FLWAC of a rule amending the

Villages of Westport Community Development District.”

4 3 . As indicated, it is not clear from the evidence

whether the Ordinanc e addressed the original Petition or the

Petition as revised by the letter dated March 29, 200 6 .

I. Public Comment

44 . There was no public comment at the local public

hearing.

APPLICABLE LAW

J. Procedure

45 . The Petition was filed pursuant to S ection

190.046(1)(g), Florida Statutes. Section 190.046(1)(g) provides

that a petition to amend which seeks to add greater than a

cumulative total of more than ten percent of the land in the

initial district, or more than a total of 250 acres, shall be

c onsidered a petition to establish a new district and shall

follow all of the " procedures specified " in S ection 190.005,

Florida Statutes. Regardless whether considered to be

"procedure," a petition to contract or expand the boundaries of

a CDD must includ e the information required by Section

190.005(1)(a)1. and 8. See § 190.046(1)(a) , Fla. Stat.

46 . Section 190.005(1)(a) 1. requires that a description by

metes and bounds of the area to be serviced by the CDD with a

specific description of real property to be excluded from the

district . As indicated, it is not clear what legal description

Petitioner is proposing for the expanded District -- the

sequential combination of the legal descriptions of Parcel A

through Parcel O, or the "CDD (Overall)" description . It also

is not clear from the evidence that the two legal descriptions

describe the same land. Given the record in this case, it would

seem to be better to use the sequential combination of the legal

descriptions of Parcel A through Parcel O.

47 . Se ction 190.005(1)(a) 8. requires a SERC meeting the

requirements of Section 120.541, Florida Statutes . As

indicated, the Petition contained a SERC that appears to meet

the requirements of Section 120.541, Florida Statutes.

48 . In addition to having to me et the requirements of

Section 190.005(1)(a)1. and 8. , a petition to expand a CDD

" shall describe the proposed timetable for construction of any

district services to the area, the estimated cost of

constructing the proposed services, and the designation of the

future general distribution, location, and extent of public and

private uses of land proposed for the area by the future land

use plan element of the adopted local government local

comprehensive plan. " See § 190.046(1)(a), Fla. Stat. The

Petition in this case included all of this required information.

49 . The other paragraphs of Section 190.005(1)(a) require

that a petition to establish a CDD filed with FLWAC must: (¶2)

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 control by "deed, trust agreement, contract or option" of

all of the real property; (¶3) designate the five initial

members of the board of supervisors of the CDD; (¶4) propose the

district's name; (¶5) contain a map showing current major trunk

water mains and sewer interceptors and outfalls, if any; (¶6)

propose a timetable for construction and an estimate of

construction costs; and (¶7) designate future general

distribution, location, and extent of publ ic and private uses of

land in the future land use element of the appropriate g eneral

purpose local government . As indicated, whether those

requirements must be met in this case depends on whether they

are considered "procedure."

50 . Section 190.005(1) (a)2., Florida Statutes, requires

the written consent of the owners of all of the real property

proposed to be in the CDD, while Section 190.046(1)(e), Florida

Statutes, only requires the written consents of the owners of

the land to be added or deleted (s ince the filing of the

petition for expansion by the district's board of supervisors

constitutes the consent of all other landowners under that

statute.) If Section 190.005(1)(a)2., Florida Statutes, were

"procedure," it would govern. However, in at leas t one case,

FLWAC has granted a petition to contract a CDD's boundaries when

only the written consent of the owners of the parcel to be

deleted from the CDD was obtained. See In Re: Petition To

Contract The Tampa Palms Open Space And Transportation Commun ity

Development District , DOAH Case No. 96 - 4213, 1997 Fla. Div. Adm.

Hear. LEXIS 5229 (DOAH Report January 29, 1997)(Rule 42J - 1.002

amended on July 31, 1997). It would appear from the precedent

that FLWAC does not consider Section 190.005(1)(a)2., Florida

Statutes, to be "procedure." That being the case, Section

190.046(1)(e), Florida Statutes, would apply, and the board of

supervisors, in filing the Petition, would be presumed to have

consented on behalf of all owners of land in the CDD other than

the ex pansion parcel. However, as indicated the replacement for

Petition Exhibit 7 does not include a consent for Parcel L, M,

or N.

51 . As to Section 190.005(1)(a)3., the Petition does not

designate the five initial members of the board of supervisors

of th e CDD. Although no direct precedent has been located, if

paragraph 2 of the statute is not considered "procedure,"

paragraph 3 probably also would not be considered "procedure."

In any event, paragraph 3 does not seem applicable to amendment

of the bound aries of a CDD.

52 . As to Section 190.005(1)(a)5., the Petition does not

appear to contain a map showing current major trunk water mains

and sewer interceptors and outfalls, if any. Although no direct

precedent has been located, if paragraphs 2 and 3 o f the statute

are not considered "procedure," it could be that paragraph 5

also would not be considered "procedure." In any event,

attached as Exhibit A to w itness Jones’s pre - filed testimony was

a letter to FLWAC which included such a map.

53 . To the extent they are considered "procedure," the

other requirements of Section 190.005(1)(a) appear to be met by

the Petition. FLWAC certified that “all required elements, as

defined in section 190.005(1)(a), Florida Statutes, are

contained in the [ P ] etition.” (Hr. Ex. C).

54 . 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 submit a

copy of the petition to those local, general - purpose

governments.

55 . Under Section 190.005(1)(b)1., Florida Statutes, the

filing fee is $15,000, not the $1,500 filing fee required under

Section 190.046(1)(d)2., Florida Statutes. But FLWAC has

granted petitions for boundary amendments exceeding the limits

in Section 190.046( 1)(f) - (g), Florida Statutes, where the local

government did not require payment of the $15,000 filing fee

requ ired under Section 190.005(1)(b)2., Florida Statutes. See

In Re: Petition For Rule Amendment - Fiddler's Creek Community

Development District , DOAH Case No. Case No. 02 - 4357, ---- Fla.

Div. Adm. Hear. LEXIS ---- , 2003 WL 603380, *13 (DOAH Report

February 25, 2003)(Rule 42X - 1.002 amended September 16,

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

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

contraction acreage and because that amount more than paid for

County staff work in conn ection with the CDD); In Re: Petition

to Contract the Circle Square Woods Community Development

District , DOAH Case No. 02 - 1118, 2002 Fla. Div. Adm. Hear. LEXIS

1017 (DOAH Report June 24, 2002)(Rule 42S - 1.002 amended

October 1, 2002)(county waived the fili ng fee). In one case, a

CDD was initially established by FLWAC where the required fees

were waived. In Re: Petition for Rule Creation - Tesoro

Community Development District , DOAH Case No. 04 - 1042, 2004 Fla.

Div. Adm. Hear. LEXIS 1937 (DOAH Report July 1 3, 2004)(Rule

42XX - 1.001 adopted January 10, 2005)(county and municipality

waived the filing fee).

56 . In this case, the filing fee Petitioner paid to the

City of Jacksonville was $1,500, not $15,000. The City of

Jacksonville accepted the filing fee an d, after conducting

public hearings, adopted Ordinance 2006 - 45 - E expressing its

support for the boundary amendment. Under the precedents,

either the filing fee should not be considered a matter of

"procedure," making $1,500 the requisite fee, or the City

effectively waived any shortfall, making the fee paid

acceptable.

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

county and each municipality described in the preceding

paragraph to conduct a public hearing on the petition. Such

local, genera l - purpose governments may then present resolutions

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

proposed in the petition. As indicated, in this case t he City

of Jacksonville conducted public hearings and adopted Ordinance

2006 - 45 - E expressing its support for the boundary amendment.

However, it is not clear from the evidence whether the Ordinance

addressed the original Petition or the Petition as revised by

the letter dated March 29, 2006.

58 . Section 190.005(1)(d), Florida Statutes, requires an

ALJ to conduct a local public hearing pursuant to Chapter 120,

Florida Statutes, and states that the hearing "shall include

oral and written comments on the petition pertinent to the

factors specified in paragraph (e)." Florida Administrative

Code Rul e 42 - 1.012 provides that "all persons shall have an

opportunity to present evidence and argument on all issues

involved" and that the ALJ "shall permit parties to examine and

cross - examine or question witnesses." Section 190.005(1)(d),

Florida Statutes, a lso specifies that the petitioner publish

notice of the local public hearing once a week for the four

successive weeks immediately prior to the hearing.

59 . Petitioner published a dequate notice of the local

public hearing in a newspaper of general paid circulation in the

county in which the District is located.

K. Six Factors to be Considered

60 . Section 190.005(1)(e), Florida Statutes, provides that

FLWAC consider the entire record of the local hearing, the

transcript of the hearing, resolutions adop ted 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 t he petition

have been found to be true and correct.

2. Whether the establishment of the district is

inconsistent with any applicable element of the effective

local government comprehensive plan.

3. Whether the area of land within the district is of

s ufficient 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.

6 1 . The evidence was that the statements in the Petition,

with its attached exhibits , as corrected and supplemented , taken

as a whole, would app ear to be true and correct, except that the

replacement for Petition Exhibit 7, which purports to be the

consents of the owners of all the expansion parcels, does not

include consents for Parcel L, M, or N.

62 . The evidence was that establishment by rule of the

District on the expanded property as proposed in the Petition ,

as corrected and supplemented , is not inconsi stent with the

State Comprehensive Plan and City of Jacksonville Comprehensive

Plan .

63 . The evidence was that the size, compactness, and

contiguity of the proposed land area are sufficient for the CDD,

as proposed to be amended, to be developable as one functional

interrelated community.

64 . The evidence was that the CDD is the best alternative

presently available for delivering community development

systems, facilities, and services to the proposed land area.

65 . The evidence was that the services and facilities

provided by the CDD, as proposed to be amended, will be

c ompatible with the capacity and uses of existing local and

regional com munity development services and facilities.

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

CDD, as proposed to be amended, is amenable to separate special -

district government.

CONCLUSION

Based on the record evidence and the law, there do not

ap pear to be consents from the landowners of Parcel L, M, or N

of the expansion area. Otherwise, there would appear to be no

reason not to grant the Petition , as corrected and supplemented,

and amend Rule 42QQ - 1.002 by revising the original legal

descriptio n to correct the error in the legal description and

add the expansion parcel s to the Villages of Westport Community

Development Distric t. However, as indicated, it is not clear

what legal description Petitioner is proposing for the expanded

District . On this record, it would seem to be better to use the

sequential combination of the legal descriptions of Parcel A

through Parcel O. Regardless which legal description is used,

it should exclude the parcel identified in Petition Exhibit 6.

DONE AND ENTER ED this 22nd day of June , 2006 , in

Tallahassee, Leon County, Florida.

S

J. LAWRENCE JOHNSTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 323 99 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 22nd day of June , 2006 .

ENDNOTES

1 / Unless otherwise indicat ed, statutory citations are to the

2005 codification of the Florida Statutes.

2 / Unless otherwise indicated, rule citations are to the current

codification of the Florida Administrative Code.

3 / The prolific use of exhibits in this proceeding can cau se

confusion. To clarify, exhibits attached to the Petition will

be called Petition Exhibits or Pet. Ex. ___, and exhibits

introduced in evidence at the hearing will be called Hearing

Exhibits or Hr. Ex. ___.

COPIES FURNISHED :

Michael P. Hansen, Sec retary

Office of the Governor

The Capitol, Room 1802

Tallahassee, Florida 32399 - 1001

Raquel Rodriguez, General Counsel

Office of the Governor

The Capitol, Suite 209

Tallahassee, Florida 32399 - 1001

Barbara Leighty, Clerk

Growth Management and Strategic

Planning

The Capitol, Room 1802

Tallahassee, Florida 32399 - 0001

Jonathan T. Johnson, Esquire

Hopping, Green, & Sams, P.A.

Post Office Box 6526

Tallahassee, Florida 32314 - 6526

Gladys Perez, Esquire

Executive Office of the Governor

Room 209

The Capitol

Tallahassee, Florida 32399 - 1001