06-001666 In Re: Petition For Rule Creation-Six Mile Creek Community Development District vs. * Status: Closed Recommended Order on Wednesday, August 30, 2006.

Summary: The proposed district meets all statutory criteria for its establishment by rule.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: PETITION FOR RULE )

CREATION - SIX MILE CREEK ) Case No. 06 - 1666

COMMUNITY DEVELOPMENT DISTRICT )

)

ADMINISTRATIVE LAW J UDGE ' S REPORT TO

THE FLORIDA LAND AND WATER ADJUDICAT ORY COMMISSION

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

local public hearing was conducted on July 19, 2006, before

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

of Administrative Hearings (DOAH), at Ci ty Hall in

St. Augustine, Florida.

The hearing was conducted for the purpose of taking

testimony and public comments and receiving exhibits on the

Petition of Six Mile Creek Ventures, LLC (Petitioner), to

establish the Six Mile Creek Community 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.

APPEAR ANCES

For Petitioner: Jonathan T. Johnson, Esquire

Wesley S. Haber, Esquire

Hopping, Green, & Sams, P.A.

Post Office Box 6526

Tallahassee, Florida 32314

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 conducted in accordance with the requirements of Section

1 90.005, Florida Statutes, and Florida Administrative Code

Chapter 42 - 1.

PRELIMINARY STATEMENT

On April 27, 2006, the Petitioner filed its Petition to

establish the District with the s ecretary of the Commission.

The Petitioner provided a copy of the Petiti on and its

attachments, 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 May 9, 2006, the s ecretary 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 s ecretary ' s certification as to the completeness

of th e Petition and referral to DOAH was included in Margaret

Jennesse ' s prefiled testimony, received into evidence as

Exhibit F.

The Petitioner published notice of the local public hearing

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

proof s of publication were received into evidence as

Petitioner ' s Composite Exhibit G.

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 ha ve 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 l ocal public hearing held on July 19, 2006, the

Petitioner presented the testimony of Margaret Jennesse,

r egional m anager of LandMar Group, LLC, the managing entity of

Six Mile Creek Ventures, LLC; Scott Wild, an expert in civil

engineering; Donald Smith, a n expert in state and local

comprehensive planning; and James A. Perry, an expert in

economic analysis and special district government. The

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

the hearing.

In addition to the Petitioner ' s couns el and witnesses,

three persons, Mary Lou Thomas and Ellen Whitmer, members of the

public, and James Whitehouse, a representative of St. Johns

County, attended and made comments during the public hearing.

After the close of the public hearing, the record w as left

open for ten days for submittal of written comments 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 August 15, 2006. The Petitioner timely

submitted a proposed report which was considered in the

preparation of this Report.

SUMMARY OF THE HEARING AND RECORD

A summary of the evidence presented in this matte r is

outlined below using as headings the factors that the

Legislature has directed the Commission to consider in making a

determination whether to grant or deny a petition to establish a

community development district.

§ 190.005(1)(e), Fla. Stat.

A. Whet her all statements contained within the Petition

have been found to be true and correct.

1. Witness Jennesse stated that she had reviewed the

contents of the Petition and generally described the attachments

to the Petition. She stated that the Petition a nd its

attachments, as modified and admitted into evidence as Composite

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

2. Ms. Jennesse stated that Exhibit 3 to the Petition was

a true and correct copy of the consent and joinder form that was

executed by the owner of the lands within the proposed District.

She further noted that there is one excluded parcel within the

boundaries of the proposed District, which is owned by

Richard A. and Velma Horton at 5405 S tate Road 16,

St. Augustine , Florida 32092. According to Ms. Jennesse, there

are no anticipated impacts on the excluded parcel as a result of

the establishment of the proposed District.

3. Witness Wild, an expert in civil engineering, stated

that he had assisted with the preparation of the Petition and

Petition Exhibits 1, 2, 4, 6, 7 , and 8. Mr. Wild testified that

Petition Exhibits 1, 2, 4, 6, 7 , and 8, as revised, are true and

correct.

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

analysis and special district government, stated that he

reviewed the Petition and its attachments. Mr. Perry stated

that Petition Exhibit 9, the Statement of Estimated Regulatory

Costs, was true and correct to the best of his knowledge.

5. No statement within the Petition or its attachments was

disputed.

6. The Petitioner has demonstrated that the statements

contained within the Petition and its exhibits are true and

correct.

B. Whether the establishment of the District is

inconsistent with any applicable element or portion of

the State Compr ehensive Plan or of the effective local

government comprehensive plan.

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

local comprehensive planning, reviewed provisions of the State

Comprehensive Plan, Chapter 187, Florida Statutes, which relate

to the establishment of a community development district.

Mr. Smith addressed two subjects of the State Comprehensive Plan

that directly apply to the establishment of the proposed

District.

8. According to Mr. Smith, Subject 15, " Land Use, "

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. Mr. Smith testified that the proposed District will

have the fiscal ab ility 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.

9. Mr. Smith stated further that Subjec t 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

sys tematically 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, 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.

10. Mr. Perry stated that from an economic perspe ctive,

four subject areas of the State Comprehensive Plan are

particularly relevant: Subject 15, " Land Use " ; Subject 17,

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

Subject 25, " Plan Implementation. "

11. Mr. Perry echoed the opinion o f Mr. Smith that, with

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

accomplish the s tate land use goal of guiding development to

areas which have the service capacity to accommodate growth.

12. Subject 17, " Public Facilities, " aims to prote ct the

substantial investments and public facilities that already exist

and plan for future facilities to serve Florida residents.

According to Mr. Perry, the proposed District will further

Subject 17 ' s goals and policies.

13. Subject 20, " Governmental Efficiency, " directs Florida

governments to economically and efficiently provide the amount

and quality of services required by the public. Consistent with

Subject 20, the proposed District will: (1) cooperate with

other levels of Florida government; (2 ) be established under

uniform general law standards as specified in Chapter 190,

Florida Statutes; (3) be professionally managed, financed, and

governed by those whose property directly receives the benefits;

(4) not burden the general taxpayer with costs for services or

facilities inside the proposed District; and (5) plan and

implement cost - efficient solutions for the required public

infrastructure and assure delivery of selected services to

residents.

14. Subject 25, " Plan Implementation, " calls for

sy stematic planning capabilities to be integrated into all

levels of government throughout the state. According to

Mr. Perry, the proposed District is consistent with this element

of the State Comprehensive Plan.

15. Mr. Smith testified that the establish ment of the

proposed District is not inconsistent with any applicable

element or portion of the St. Johns County Comprehensive Plan.

According to Mr. Smith, the proposed District will: (1) finance

the construction of, and ultimately own community parks a nd

facilities; (2) potentially enter into interlocal agreements

with the County to provide enhanced maintenance; (3) serve as an

alternative provider of infrastructure systems and services to

meet the needs of the lands within its boundaries; and (4)

provi de the infrastructure facilities and services needed for

its lands without burdening the fiscal resources of the County.

In completing the above - referenced actions, the proposed

District furthers Policy F.1.3.10, Objective G.1.5, Goal H.1 ,

and Objective H .1.7, of the St. Johns County Comprehensive Plan.

16. The Department of Community Affairs reviewed the

Petition for consistency with the State Comprehensive Plan and

the St . Johns County Comprehensive Plan. In a letter dated

May 30, 2006, the Department informed the Petitioner that it had

identified no potential inconsistency. The Department ' s letter

is included in the prefiled testimony of Ms. Jennesse.

17. The Petitioner has demonstrated that the proposed

District will not be inconsistent with any ap plicable element or

portion of the State Comprehensive Plan or the St. Johns County

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 developa ble as one

functional interrelated community.

18. Testimony on this factor was provided by W itnesses

Wild, Smith, and Perry. According to Mr. Perry, the proposed

District has sufficient land area and is sufficiently compact

and contiguous to be develope d, with the roadway improvements,

surface w ater drainage, water and sewer and other

infrastructure, facilities , and services contemplated.

Mr. Perry further elaborated that the proposed District will

operate as one functionally interrelated community.

19. According to Mr. Wild, the lands to be included within

the proposed District have sufficient infrastructure needs to be

developable as a functionally interrelated community. Mr. Wild

further explained that the specific design of the community

allows inf rastructure to be provided in a cost - effective manner.

Mr. Wild concluded that the provision of services and facilities

th r ough the use of one development plan provides a contiguous

and homogenous method of providing services to lands throughout

the Distr ict.

20 . Mr. Smith noted that St. Johns County has already

found that the area within the Six Mile Creek PUD is a community

and that the lands that make up the proposed District are a

portion of that PUD. Mr. Smith further noted that, from a

planning per spective, the relatively small nature of the

proposed District, its planned community character , and the

proposed limited services and facilities are a good match.

Mr. Smith concluded that the proposed District is of sufficient

size, is sufficiently comp act , and is sufficiently contiguous to

serve as one functional, interrelated community.

2 1 . Compactness relates to the location in distance

between the lands and land uses within a community. According

to Mr. Perry, in his opinion as a financial advisor, the project

is compact with land use typical of a planned community.

Mr. Perry further opined that the development of the land has

been planned to be a functional interrelated community.

2 2 . 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 proposed District is the best alternative

available for delivering comm unity development services

and facilities to the area that will be served by the

District.

2 3 . Mr. Perry noted that the proposed District can access

the tax - exempt public capital markets and thereby fund the

District ' s proposed facilities at a lower cost than the

alternative of developer funding. He further noted that, unlike

a homeowners ' association, the proposed District will have the

power to assess property and collect those assessments along

with other property taxes. Under such a system, only res idents

of the area served by the proposed District would bear the full

costs of the needed facilities and services.

2 4 . Two alternatives to the establishment of the District

were identified. The planned facilities and services could be

provided by St. Jo hns County utilizing special assessments or

general funds; or the facilities and services could be provided

by the developer and/or a homeowner ' s association. However, the

County has substantial demands over a broad geographical area

that places a heavy m anagement delivery load on its staff. The

use of a community development district allows the County to

focus staff time, finances , and other resources elsewhere and

does not burden the general body of taxpayers in the County with

the debt associated with the growth within the proposed

District. With respect to the developer, it does not have the

ability to effectively finance the type of improvements

contemplated for the proposed District. A developer ' s ability

to assure adequate funds for sustained high levels of

maintenance is less than with a community development district.

2 5 . The St. Johns River Water Management District prefers

community development districts over homeowner ' s associations as

the operating and maintenance entities for surface water

management systems. See Petitioner ' s Exhibit C.

2 6 . 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.

2 7 . The long - term management capability of a community

development district extends to the operation and maintenance of

the facilities owned by the community development district. The

sources of funding and the manner of collection of funds will

assure that the proposed Di strict ' s facilities will be managed

at the sustained levels of quality desired by residents well

into the future.

2 8 . From a planning perspective, the proposed District is

the best alternative to provide the proposed community

development services and fac ilities to the 1,282.15 acres

proposed to be included within the proposed District. This is

in part because the proposed District will provide a perpetual

local government capable of delivering improvements which will

be directly responsible and responsiv e to the residents of the

proposed District.

2 9 . The Petitioner has demonstrated that the proposed

District is the best alternative available for delivering

community development services and facilities to the area that

will be served by the District.

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.

30 . Mr. Wild stated that none of the planne d

infrastructure improvements that the proposed District would

provide presently exist on the subject property in a form that

is adequate for the proposed residential development. Mr. Perry

stated that the District will provide the needed infrastructure

a nd services so County financing and other resources will not be

burdened. Mr. Wild further stated that each of the District ' s

infrastructure improvements would connect into the County ' s

existing systems only after review and approval of the County.

There fore, there would be no incompatibility.

3 1 . The Petitioner has demonstrated that the community

development services and facilities of the proposed District

will not be incompatible with the capacity and uses of existing

local and regional community devel opment services and

facilities.

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

District is amenable to separate special - district

government.

3 2 . Two criteria are needed to evaluate a land area as

amenable to separate special district government : (1) whether

the land area is of sufficient size, sufficient compactness , and

sufficiently contiguous to be the basis for a functional

interrelated community; and (2) does the land area have a need

for the facilities and services.

3 3 . With respect to th e first criterion, as found above,

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 sufficiently cont iguous to be developed as a

functionally interrelated community. With regard to the second

criterion, the community that would be served by the District ' s

facilities needs basic infrastructure systems to be provided.

3 4 . The Petitioner has demonstrated t hat the proposed

District is amenable to separate special - district government.

G. Other requirements imposed by statute or rule.

3 5 . The Commission certified that the Petition to

Establish the Six Mile Creek Community Development District

contains all t he information required by Section 190.005(1)(a),

Florida Statutes. The undersigned also finds that the Petition

contains all required information.

3 6 . Section 190.005(1)(a), Florida Statutes, requires the

Petition to include a Statement of Estimated Reg ulatory 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 est ablish the

District -- the State of Florida and its citizens, the County and

its citizens, and future landowners within the proposed

District.

3 7 . 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. Any debt obligations

incurred by the District to construct its infrastructure, or for

any other rea son, are not debts of the State of Florida or any

unit of local government.

3 8 . Administrative costs incurred by the County related to

rule adoption should be minimal and are offset by the filing fee

of $15,000 submitted to St. Johns County.

3 9 . Landowne rs within the proposed District will pay non -

ad valorem or special assessments for the District ' s facilities.

Benefits to landowners in the area within the District will

include a higher level of public services and amenities than

might otherwise be avail able, completion of District - sponsored

improvements to the area on a timely basis, and greater control

over community development services and facilities within the

area.

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

Petitioner to publish noti ce of the local public hearing in 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, fo r four consecutive weeks

on June 21, June 29, July 5, and July 12, 2006.

H. Local Government Support for Establishment .

4 1 . 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 St. Johns County prior to filing the

Petition with the Commission.

4 2 . The St. Johns County Commission did not hold a public

hearing on the establishment of the District as permitted by

Section 190.005(1)(c), Florida Statutes. However, Ja mes

Whitehouse, assistant county attorney with St. Johns County,

attended the July 19, 2006 , public hearing and specifically

noted that the County does not support the sale of wetlands.

The Petitioner has indicated that the District does not intend

to pur chase wetlands.

I. Public comment regarding the establishment of the

District.

4 3 . Two members of the public, Mary Lou Thomas and Ellen

Whitmer, commented during the public hearing.

4 4 . Ms. Thomas asked what impact the proposed District

would have on S ix Mile Creek. In response, Mr. Wild, an expert

in civil engineering, described the water management systems

that would address the potential impacts on Six Mile Creek.

Mr. Wild also noted that the creation of the District, which is

the subject of these proceedings, will have no impact on Six

Mile Creek.

4 5 . Ms. Whitmer asked what the estimated assessment per

homeowner would be. Mr. Perry, an expert in economic analysis,

provided background information on how assessment levels are

determined. Addition ally, Ms. Jennesse provided Ms. Whitmer

with an estimated level of debt assessment.

4 6 . Neither Ms. Thomas nor Ms. Whitmer live s within the

boundaries of the proposed District. Their comments related to

matters outside the scope of the six factors, set f orth in

Section 190.005(1)(e), Florida Statutes, to be considered in

making a determination to grant or deny a petition to establish

a community development district.

J. Persons designated to be the initial members of the

Board of Supervisors .

4 7 . Ms. J ennesse stated that the names of the five persons

designated to serve as the initial Board of Supervisors of the

proposed District are Kelly Kulinski ; Steward A. Sparks, III ;

Cynthia Jones ; Kirk Wendland ; and herself. According to

Ms. Jennesse, each of t hese individuals is a citizen of the

United States and resides in the State of Florida.

CONCLUSIONS OF LAW

4 8 . This proceeding is governed by Chapter 190, Florida

Statutes, which establishes an exclusive and uniform method for

the establishment of a comm unity development district with a

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

4 9 . The Petition contained all the information required by

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

paid the required filing fee.

50 . The local public hearing was properly noticed by

newspaper publications in St. Johns County as required by

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

5 1 . 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 District as required by Section 190.005(1)(d), Florida

Statutes, and Florida Administrative Code Rule 42 - 1.012.

5 2 . The Petition contains a Statement of Estimated

Regulatory Costs in accordance with the requirements of Section

120.541, Florida Statutes.

5 3 . All portions of the Petition and other submittals have

been completed and filed as required by law.

5 4 . The Petitioner demonstrated that the Petition

favorably addresses all the f actors set forth in Section

190.005(1)(e), Florida Statutes.

CONCLUSION

Based on the entire record of the local hearing, the

T ranscript of the local hearing, and considering the factors

listed in Section 190.005(1)(e), Florida Statutes, the Petition

meets all statutory requirements, and there appears no reason

not to grant the Petition to establish by rule the proposed Six

Mile Creek Community Development District.

DONE AND ENTERED this 30 th day of August , 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.st ate.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 30 th day of August , 2006 .

ENDNOTE

1/ All references to the Florida Statutes are to the 2005

codification.

COPIES FURNISHED :

Jonathan T. Johnson, Esquire

Wesley S. Haber , Esquire

Hopping, Green, & Sams, P.A.

Post Office Box 6526

Tallahassee, Florida 32314

Barbara Leighty, Clerk

Growth Management and Strategic

Planning

The Capitol, Room 1802

Tallahassee, Florida 32399 - 0001

Gladys Perez, Esquire

Executive Office of th e Governor

The Capitol , Room 209

Tallahassee, Florida 32399

Michael P. Hansen, Secretary

Office of the Governor

The Capitol, Room 1802

Tallahassee, Florida 32399 - 0 001

Raquel Rodriguez, General Counsel

Office of the Governor

The Capitol, Suite 209

Talla hassee, Florida 32399 - 0 001