07-003400 In Re: Petition To Establish The Bexley Community Development District I vs. * Status: Closed Recommended Order on Tuesday, December 18, 2007.

Summary: The Petition to establish a community development district in Pasco County meets all statutory criteria and is approved.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: PETITION FOR RULE )

CREATION – BEXLEY COMMUNITY ) Case No. 07 - 3400

DEVELOPMENT DISTRICT I )

_ _____________________________ )

ADMINISTRATIVE LAW JUDGE'S REPORT TO THE FLORIDA LAND

AND WATER ADJUDICATORY COMMISSION

Pursuant to notice, a local public hearing was held in this

matter in Wesley Chapel , Florida, on November 9, 2007, before

D onald R. Alexander, a n Administrative Law Judge of the Division

of Administr ative Hearings .

APPEARANCES

For Petitioner: Susan E. Johnson - Velez, Esquire

Fowler White Boggs Banker P.A.

Post Office Box 1438

Ta mpa , Florida 33601

STATEMENT OF THE ISSUE

The issue is whether the Petition to E stablish the Bexley

Community Development District I (Petition) meets the applicable

criteria set forth in Chapter 190, Florida Statutes (2006 ), 1 and

Florida Administrative Code Rule Chapter 42 - 1. The purpose of

the hearing was to gather information in anticipation of quasi -

legislative rulemaking by the Florida Land and Water

Adjudicatory Commission (Commission).

PRELIMINARY STATEMENT

On July 2, 2007, NNP - Bexley, Ltd. (Petitioner) filed its

Petition with the Secretary of the Commission. Prior to t hat

time, a copy of the Petition and exhibits , along with the

requisite filing fee, w as filed with Pasco County (County) ,

where the proposed community development district ( District )

will be located . The County did not elect to have a local

hearing.

On Ju ly 20, 2007, the Secretary of the Commission certified

that the Petition contained all required elements and forwarded

it to the Division of Administrative Hearings for the purpose of

holding the local public hearing required under Section

190.005(1)(d), F lorida Statutes.

The local public hearing was held on November 9, 2007, in

Wesley Chapel, Florida. 2 Notice of the public hearing was

published in accordance with Section 190.005(1)(d), Florida

Statutes. On October 3, 2007, Petitioner pre - filed the

tes timony of its three witnesses. On November 5, 2007,

Petitioner filed the Supplemental Testimony of John McKay, which

changed his response to Question 13 by indicating that, at the

request of the Commission, paragraph 2 on page 2 of the

Statement of Estima ted Regulatory Costs (SERC) had been deleted.

At the local public hearing, Petitioner presented the

testimony of Rhonda Scott Brewer, Vice - President of Operations

for Newland Communities, LLC, which oversees the Bexley Ranch

Development of Regional Impac t (DRI); John McKay, Director of

Planning and Compliance with Rizzetta & Company , Inc., and

accepted as an expert; and Brian G. Surak, Project Manager for

Heidt & Associates , Inc. and accepted as an expert. No members

of the public appeared at the hearing . Petitioner also offered

Petitioner's Exhibits A - H, which were received into evidence.

Composite Exhibit A is the Petition and attached Petition

Exhibits 1 - 11 ; Exhibit B is a revised Future Land Use Map of the

County Comprehensive Plan (Plan) showing th e current land use

designations in the area where the D istrict will be located;

Exhibit C is a copy of the notice published in the Florida

Administrative Weekly ; Exhibit D is the affidavit of publication

in a local newspaper ; Exhibit E is a copy of County Ordinance

No. 06 - 10 , dated March 28, 2006, which changed the land use for

the areas in and around the proposed District ; Exhibit F is a

letter dated August 8, 2007, from the Department of Community

Affairs to the Commission; Exhibit G is the SERC , as revis ed,

prepared by Petitioner; and Composite Exhibit H is the prefiled

testimony of witnesses Brewer, McKay, and Surak , as

supplemented .

The T ranscript of the local public hearing was filed on

November 19, 2007. Petitioner's Proposed Report of Findings and

Conclusions was filed on December 3, 2007, and has been

considered in the preparation of this Report .

SUMMARY OF THE RECORD

A. Petition and Related Matters

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

Commission to establish the District , which will consist of

2,528.306 acres located within the unincorporated part of the

Co unty. The proposed District is located just north of the

Hillsborough - Pasco County boundary line and State Road 54 and

west of U.S. Highway 41 . Its western boundary ad joins the

Suncoast Parkway. The nearest community is Land O' Lakes, which

is a few miles north of the proposed District.

2. The property within the District is owned by Petitioner

(a Florida limited partnership) and Bexley Ranch Land Trust and

is part of a unified plan of development for which a development

plan has been approved by the County as part of the Bexley Ranch

DRI. Petition Exhibit 4 is the Consent and Joinder of

Landowner s to Establish the Bexley Community Development

District I.

3. The Pe tition indicates that the five persons designated

to serve as initial members of the Board of Supervisors are

Rhonda Scott Brewer, Rick Harcrow, Dean Hill, Galen Custard, and

Bryan Bexley, and that each member is a resident of the State of

Florida and a c itizen of the United States.

4 . Petition Exhibit 5 describes the major water,

wastewater, and reuse trunk lines within the proposed District,

while Petition Exhibit 6 provides the proposed construction

timetable and cost estimates during the years 2008 - 20 09 and

2009 - 2010. The total estimated cost of the infrastructure

facilities and services which are presently expected to be

provided to the lands within the District is $263,373,404.00.

5. Petition Exhibit 7 is the S ERC, which indicates that it

was pre pared in accordance with Section 120.541, Florida

Statutes.

6. Petition Exhibit 8 is a map taken from the Future Land

Use Map of the Plan and shows the future land use categories for

the property.

7. Petition Exhibit 9 identifies Susan E. John son - Velez ,

Esquire, and Fowler White Boggs Banker P.A. as authorized agents

for Petitioner.

8. A copy of the Bexley Ranch DRI and accompanying

Development Order adopted by County Resolution 06 - 181 on

March 28, 2006, are included in Petition Exhibit 10.

9. Finally, Petition Exhibit 11 is a copy of the

Development Agreement between the County and Bexley Ranch Land

Trust, L.S.B. Corporation, and Newland Communities, LLC (which

will supervise the development of the District) for the Bexley

Ranch DRI.

10 . The s ole purpose of this proceeding was to consider

the establishment of the District as proposed by Petitioner.

Because Section 190.005, Florida Statutes, contains the

statutory criteria to be considered, a summary of the evidence

relating to each enumerated section of the statute is set forth

in the following part of this Report.

SUMMARY OF EVIDENCE AND TESTIMONY

A. Whether all statements contained within the Petition

have been found to be true and correct.

11 . Petitioner's Composite Exhibit A consists of the

Petition and attached exhibits as filed with th e Commission.

Rhonda Scott Brewer, who is Vice - President of Operations for

Newland Communities, LLC, testified that s he had reviewed the

contents of the Petition and that one correction should be made.

S pecifically, M s. Brewer stated that Petition Exhibit 8, which

is the Plan map of the land use designations, should be

corrected to reflect the proper land use designation for the

property included within the proposed District. The correct map

was substitu ted for the original map and was received in

evidence as Exhibit B. With this substitution, the witness

testified that the information contained in the Petition was

true and correct to the best of h er knowledge.

1 2 . Mr. McKay is a certified public accou ntant whose firm

serves as financial advisor and manager for more than 120

community development districts around the State. Besides

preparing the SERC, the witness reviewed the Petition and all

attached exhibits. To the best of his knowledge and belief, all

matters contained in the Petition and attached exhibits were

true and correct.

1 3 . Finally, Mr. Surak, a professional engineer, oversees

the design and construction of infrastructure necessary for land

development, including community development d istricts.

Mr. Surak prepared Petition Exhibits 1, 2, 5, and 6 and stated

that to the best of his knowledge and belief, the Petition and

attached Exhibits 1, 2, 5, and 6 were true and correct.

1 4 . The testimony is that the Petition and its exhibits as

am ended and suppl e mented are true and correct.

B. 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.

1 5 . Mr. Surak test ified that he reviewed the Petition for

consistency with the County's Plan. He indicated that the

proposed District is not inconsistent with any applicable

provision of th at Plan.

1 6 . According to Mr. Surak, several provisions of the

local Plan indicat e that the County looks to community

development districts to provide alternative funding for public

infrastructure and community services. For example, he stated

that Future Land Use Element (FLUE) Policy 1.2.7 of the Plan

requires that all wetlands be d eeded to a mandatory homeowner s'

association or c ommunity development district , as required by

the County Land Development Code. Also, FLUE Policy 1.4.1

relating to Subdivision Standards provides that the County shall

maintain the vi a bility of established and future residential

neighborhoods by continuing to enforce L and D evelopment C ode

provisions relating to maintenance and use of common - space areas

and neighborhood parks through homeowner s' associations and

community development district s . Finally, he cited "CON" Policy

1.2.6 , which provides that the County will require environmental

management plans to address the operation and maintenance of

conservation easements, and that these shall be the

responsibility of the homeowner s' association or community

development district. He added that the proposed District is

consistent with each of these provisions.

1 7 . In a letter to the Commission dated August 8, 2007,

the Department of Community Affairs stated that it had reviewed

the Petition and information pr esented in the application and

identified no potential inconsistency with Chapter 163, Florida

Statues.

1 8 . Ms. Brewer testified that the adoption of the

amendment to the Plan, which changed the land use designations

on the District property, results i n the development being

consistent with the Plan.

1 9 . Finally, the Petition states that the establishment of

the District and all land uses and services planned within the

District are consistent with the State Comprehensive Plan

codified in Chapter 187, Florida Statutes, and all applicable

elements or portions of the County's Plan.

20 . The testimony and exhibits indicate that the proposed

District will not be inconsistent with any applicable element or

portion of the State Comprehensive Plan or the Coun ty Plan.

C. W hether the ar ea of land within the proposed D istrict

is of sufficient size, is sufficiently compact, and is

sufficiently contiguous to be developable as one functional

interrelated community.

21 . According to Mr. Surak, f rom an engineering

perspective, 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.

2 2 . Mr. McKay further indicated that fro m economic and

management perspective s , the proposed District is of sufficient

size, is sufficiently compact, and is sufficiently contigu ous to

be developable as one functional, interrelated community.

2 3 . The testimony was that Petitioner has demonstra ted

that the proposed District will be 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 deli vering community development services and

facilities to the area that will be served by the proposed

District.

2 4 . Ms. Brewer testified that the proposed District will

participate in the acquisition or construction of master roads

and streets, infrastruc ture, landscaping, signage and walls,

parks and recreational facilities, an irrigation reservoir, and

offsite improvements. This is evidenced by Petitioner's Exhibit

6 , which indicates Petitioner's present intention to construct

or provide certain infrast ructure i mprovements as outlined in

the P etition.

2 5 . Mr. McKay stated that the proposed District will issue

bonds to finance these services and improvements. These bonds

will be repaid from the proceeds of special assessments on

benefited property withi n the proposed District. He added that

the use of special assessments will ensure that those benefiting

from these services help pay for those services.

2 6 . According to Mr. McKay, one alternative to the use of

a community development district, as prop osed, is a homeowners'

association. However, he pointed out that a community

development district is preferable to a homeowner s' association

because a homeowner s' association does not have the ability to

finance the facilities. Also, the local water mana gement

district (presumably the Southwest Florida Water Management

District) prefers community development districts to homeowner s'

associations. Mr. McKay further explained that the proposed

District is a better alternative from a governmental

accountabi lity perspective because residents have a focused unit

of government, ultimately under residential control, with

limited responsibilities, and it is responsive to the needs of

its residents. In addition, a community development district

can impose, collec t, and enforce assessments like property

taxes . This provides a greater certainty of assuring that

needed funds are available.

2 7 . Mr. McKay testified that unlike homeowner

associations, a community development district is subject to the

same statutes and regulations applicable to other local

governments. These statutes include the Public Records Law in

Chapter 119, Florida Statutes, the Government in the Sunshine

Law in Chapter 286, Florida Statutes, and the rulemaking

procedures codified in Chapter 1 20, Florida Statutes. He added

that compliance with these laws ensures the ability of

residents, landowners, and the general public to participate in

the decision - making process.

2 8 . Mr. Surak also testified that from an engineering

perspective concerned with the long - term management and

maintenance of facilities and services, the proposed District is

the best alternative for providing long - term, self - sufficient

development.

2 9 . The testimony is that Petitioner has demonstrated that

the proposed Distri ct is the best alternative available for

delivering community development services and facilities to the

area that will be served by the proposed District.

E. Whether the community develo pment services and

facilities of the proposed District will be incom patible with

the capacity and uses of existing local and regional community

development services and facilities.

30 . Mr. Surak testified that from an engineering

perspective, there is no planned duplication of facilities and

services. He stated that the facilities and services to be

provided will not duplicate any facilities and services provided

by the County or the region. He added that the proposed

District will supply the additional facilities and services

necessary for development that are not curr ently provided by

local general - purpose government or other government entities.

31 . From an economic analysis perspective, Mr. McKay

indicated that the services and facilities to be provided by the

proposed District will not be incompatible with the us es of the

existing local and regional facilities and services. He further

stated that the master stormwater management , potable water , and

sanitary sewer system s expected to be constructed by the

proposed District are not currently provided. He added tha t

heightened public oversight also ensures that duplication and

incompatibility are avoided.

3 2 . Ms. Brewer testified that certain roads and the water

and sewer facilities to be constructed by the District will be

owned and maintained by th e County.

3 3 . The testimony is 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 development services and facilities.

F. Whether the area that will be served by the District is

amenable to separate special - district government.

3 4 . Witness McKay indicated that from a management

perspective, the land area within the proposed District is well -

suited to the provision of the proposed services and f acilities

and that the size, compactness , and contiguity of the proposed

District make it amenable to separate special district

governance.

3 5 . Mr. McKay further added that from a n economic

perspective, it is expected that the proposed District will lev y

assessments and fees on the landowners and residents within the

District who will benefit from the improvements in order to fund

the construction of the planned improvements. He also indicated

that the District will levy non - ad valorem or special

assess ments to fund the operations and maintenance of the

respective facilities and services of the District. Finally, he

stated that the area to be served is amenable to separate

special district government and is well - suited for the proposed

services and faci lities.

3 6 . From an engineering perspective, Mr. Surak testified

that the proposed District will constitute an efficient

mechanism for providing necessary capital improvements for

development of the area.

3 7 . The testimony is that f rom economic, manage ment , and

engineering perspectives, the area that will be served by the

District is amenable to separate special - district government.

G. Other Requirements Imposed by Statute or Rule

3 8 . Chapter 190, Florida Statutes, and Florida

Administrative Code Ru le Chapter 42 - 1 impose specific

requirements regarding the petition and other information to be

submitted to the Commission.

a. Elements of the Petition

3 9 . The Commission has certified that the Petition meets

all of the requirements of Section 190.005(1 )(a), Florida

Statutes.

b. State ment of the Estimated Regulatory Costs

40 . According to Mr. McKay, who prepared the SERC, which

is found in Petition Exhibit 7, it contains an estimate of the

costs and benefits to all persons directly affected by the

pr oposed rule to establish the District -- the State of Florida

and its citizens, the County and its citizens, Petitioner, and

current and future property owners.

41 . The SERC indicates that b eyond administrative costs

related to rule adoption, the State a nd its citizens will only

incur minimal costs from establishing the District ; that these

costs are related to the incremental costs to various agencies

of reviewing additional local government report s filed annually ;

that the proposed District will require no subsidies from the

State ; and that the b enefits will include the possibility of

increased sales tax revenues, a positive impact on property

values and ad valorem taxes, and impact fee and development

permit revenues, all of which are difficult to quant ify but

potentially substantia l.

4 2 . The SERC also states that a dministrative costs

incurred by the County related to rule adoption will be modest

and that these modest costs are offset by the $15,000 .00 filing

fee required to accompany the Petition to t he County .

4 3 . The SERC further provides that c onsumers will pay non -

ad valorem or special assessments for certain facilities and

that l ocating within the District is voluntary. It also states

that b enefits to consumers in the area within the District w ill

include a higher level of public services and amenities than

might otherwise be available and a larger share of direct

control over community development services and facilities

within the area.

4 4 . Section 190.005(1)(a), Florida Statutes, requires th e

petition to include a SERC that meets the requirements of

Section 120.541, Florida Statutes. As noted above, t he P etition

contains a SERC and appears to meet all requirements of that

statute.

c. Other Requirements

4 5 . Petitioner's Exhibit A, page 3, indicates that

Pe titioner has complied with the provisions of Section

190.005(1)(b)1., Florida Statutes, in that the County w as

provided copies of the Petition and w as paid the requisite

filing fee.

4 6 . Section 190.005(1)(d), Florida Statutes, requires a

p etitioner to publish notice of the local public hearing in a

newspaper of general circulation in the County for four

consecutive weeks prior to the hearing. The notice was

published in the Ta mpa Tribune, Pasco County Edition , a

newspaper of general pai d circulation in the County , for four

consecutive weeks on October 12, 19, 26, and November 2, 2007.

4 7 . No public comment was received during the hearing and

no comments were filed by any person during the ten - day period

after the hearing.

APPLICABLE LA W

4 8 . This proceeding is governed by Chapters 120 and 190 ,

Florida Statutes, and Florida Administrative Code Rule Chapter

42 - 1.

4 9 . Section 190.005(1), Florida Statutes, provides that

the exclusive method for establishing a community development

distri ct with a size of 1,000 or more acres shall be by rule

adopted by the Commission.

50 . The evidence was that the proceeding was properly

noticed pursuant to Section 190.005 (1)(d) , Florida Statutes, by

publication of an advertisement in a newspaper of gener al paid

circulation in the County and of general interest and readership

once each week for the four consecutive weeks immediately prior

to the hearing.

51 . The evidence was that Petitioner has met the

requirements of Section 190.005 (1)(b) , Florida Statut es,

regarding the submission of the Petition and satisfaction of

filing fee requirements.

5 2 . Petitioner bears the burden of establishing that the

P etition meets the relevant statutory criteria set forth in

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

5 3 . Th e evidence was that a ll portions of the Petition and

other submittals have been completed and filed as required by

law.

5 4 . The evidence was that a ll statements contained within

the Petition as corrected and supplemented are true and correct.

§ 190.005(1 )(e)1., Fla. Stat.

5 5 . The evidence was that t he establishment of the

District is not inconsistent with any applicable element or

portion of the State Comprehensive Plan or the effective Pasco

County Comprehensive Plan. § 190.005(1)(e)2., Fla. Stat.

5 6 . The evidence was that 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. § 190.005(1)(e)3., Fla.

Stat.

5 7 . The evidence was 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. § 190.005(1)(e)4., Fla. Stat.

5 8 . The evidence was that the community de velopm ent

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.

§ 190.005(1)(e)5., Fla. Stat.

5 9 . The evidence was that the area to be served by the

proposed District is amenable to separate special district

government. § 190.005(1)(e)6., Fla. Stat.

CONCLUSION

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

Commission "shall consider the entire record of the local

hearing , resolutions adopted by the local general - purpose

governments," and the factors listed in subparagraphs 1. through

6. of that statute. Based on the record evidence, the Petition

appears to meet all statutory requirements, and there appears to

be no reaso n not to grant the Petition to Establish the Bexley

Community Development District I as requested by Petitioner.

For purposes of drafting a rule, a copy of the metes and bounds

description of the District is found in Petition Exhibit 2 .

DONE AND ENTERED t his 18th day of December, 2007, in

Tallahassee, Leon County, Florida.

S

DONALD R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32 399 - 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 18th day of December , 2007 .

ENDNOTE S

1/ All references are to the 2006 version of the Florid a

Statutes.

2/ The local public hearing was originally scheduled to be

conducted on October 8, 2007. At the request of Petitioner,

however, it was renoticed and re advertised for November 9, 2007.

COPIES FURNISHED:

Jerry McDaniel, Secretary

Florida L and and Water

Adjudicatory Commission

The Capitol, Room 180 2

Tallahassee, Florida 32399 - 0001

Barbara Leighty, Clerk

Florida Land and Water

Adjudicatory Commission

Office of Policy and Budget

The Capitol, Room 1801

Tallahassee, Florida 32399 - 0001

Paul C. Huck, Jr., General Counsel

Office of the Governor

The Capitol, Room 209

Tallahassee, Florida 32399 - 0001

Susan E. Johnson - Velez , Esquire

Fowler White Boggs Banker P.A.

Post Office Box 1438

Ta mpa , Florida 3 3601

Shaw P. Stiller, General Counsel

De partment of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399 - 2100