07-005750 In Re: Petition To Amend The Crossings At Fleming Island Community Development District vs. * Status: Closed Recommended Order on Tuesday, April 29, 2008.

Summary: Petition to amend community development district boundaries by adding 21 acres met all statutory criteria; where the effect of expansion was de minimus, only consent of owners of the expansion parcels required, not all existing owners within the district.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: PETITION TO AMEND THE )

CROSSINGS AT FLEMING ISLAND ) Case No. 07-5750

COMMUNITY DEVELOPMENT DISTRICT )

)

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 Orange Park, Florida, on February 28, 2008, before

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

of Administrative Hearings.

APPEARANCES

For Petitioner: Michael C. Eckert, Esquire

A. Tucker Frazee, Esquire

Hopping Green & Sams

Post Office Box 6526

Tallahassee, Florida 32314-6526

STATEMENT OF THE ISSUE

The issue is whether the Petition to Amend the Boundaries

of the Crossings at Fleming Island Community Development

District (Petition) meets the applicable criteria set forth in

Chapter 190, Florida Statutes (2007) 1 , and Florida Administrative

Code Rule Chapter 42-1. The purpose of the local public hearing

was to gather information in anticipation of quasi-legislative

rulemaking by the Florida Land and Water Adjudicatory Commission

(Commission).

PRELIMINARY STATEMENT

On March 14, 2007, the Crossings at Fleming Island

Community Development District (Petitioner or District) filed

its Petition with the Commission. It requested that the

Commission amend Florida Administrative Code Rule 42H-1.002 to

expand the boundaries of the District to include certain

property in Clay County (County), Florida, consisting of

approximately 20.7 acres. The initial Petition included ten

exhibits.

On June 29, 2007, the Commission issued a Notice of

Insufficiency and Request for Additional Information (Notice of

Insufficiency). On September 7, 2007, Petitioner filed its

Response to Notice of Insufficiency and Request for Additional

Information.

On December 17, 2007, the Secretary of the Commission

certified that with one exception, the Petition contained all

required elements and referred it to the Division of

Administrative Hearings (DOAH) to conduct a local public hearing

pursuant to Section 190.005(1)(d), Florida Statutes. The

referral letter noted in relevant part that

the Petition does not strictly comport with

[Section] 190.005(1)(a)2., in that it lacks

consent of all landowners whose property is

to be included within the District. The

District has been amended on two prior

occasions, surpassing the cumulative

threshold in [Section] 190.046(1)(f),

Florida Statutes. Accordingly, the Petition

is considered a Petition to establish a new

district and must comport with all of the

requirements of [S]ection 190.005, Florida

Statutes. See [§] 190.046(1)(f), Fla. Stat.

In this particular case, however, counsel

for Petitioner has represented that the

negative effects to the residents from

addition of 21 acres, which is less than 1%

increase of the CDD, are de minimis .

Moreover, the lands to be added are mainly

infill to the already existing CDD. Because

there are thousands of residential and

commercial landowners, adherence to a

sterile literal reading of the statute

requiring all landowner consent, given the

facts and parcel descriptions in

Petitioner's November 13, 2007, letter to

the Commission (incorporated by reference

herein), would be unreasonable, especially

in light of the prior amendments. This

determination results from the unique

factual circumstances of the instant

District and in no way shall be interpreted

to mean that the Commission waives the

requirement that petitions to amend

community development districts that surpass

the threshold in [Section] 190.046(1)(g)

must contain the landowner consent of all

real property included within the district's

boundaries.

The local public hearing was held on February 28, 2008, in

Orange Park, Florida. Notice of the public hearing was

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

Statutes. On February 25, 2008, Petitioner pre-filed the

written testimony of its four witnesses.

At the local public hearing, Petitioner presented the

testimony of Yvette Hartsfield, District Manager of the District

and employed by Government Services Group, Inc.; Ronald E.

Kolar, Developer Representative and employed by East-West

Partners; Stephen Czajkowski, Vice-Chairman of the District's

Board of Supervisors (Board); and Carol Rogers, District

Financial Advisor and employed by Government Services Group,

Inc. Except for Mr. Czajkowski, all witnesses were accepted as

experts. Petitioner also introduced seventeen exhibits,

designated as Exhibits A through Q. Composite Exhibit A is the

Petition filed with the Commission, with ten attachments;

Exhibit B is a letter from the Clay County Attorney dated

April 17, 2007, indicating that the County would not conduct a

public hearing on the matter; Exhibit C is the Commission's

Notice of Insufficiency; Exhibit D is the Commission's Order

Granting Request for Enlargement of time to respond to the

Notice of Insufficiency entered on July 16, 2007; Exhibit E is

Petitioner's Response to the Notice of Insufficiency dated

September 7, 2007; Exhibit F is a letter dated November 13,

2007, from Petitioner's counsel to Barbara Leighty; Exhibit G is

the transmittal letter from the Commission to DOAH; Exhibit H is

a letter dated December 17, 2007, from the Commission to the

Northeast Florida Regional Planning Council (Council); Exhibit I

is a letter dated December 17, 2007, from the Commission to the

Department of Community Affairs (Department); Exhibit J is a

copy of the Notice of Local Public Hearing issued on January 9,

2008; Exhibit K is the affidavit of publication for the local

public hearing published in a community subsection of The

Florida Times-Union on January 31 and February 7, 14, and 21,

2008; Exhibit L is the Notice of Receipt of Petition published

by the Commission in the Florida Administrative Weekly on

February 8, 2008; Exhibit M is a certified copy of Chapter 187,

Florida Statutes; and Exhibits N through Q are the pre-filed

written testimony of witnesses Kolar, Hartsfield, Czajkowski,

and Rogers, respectively.

In addition, three members of the public, all of whom

reside within the District, presented testimony at the hearing:

Ronald Dill, Jenise Whitmire, and Michael Heemer.

On March 5, 2008, or within ten days after the public

hearing, Joseph E. Snyder, also a resident of the District,

filed written comments in opposition to the Petition. See Fla.

Admin. Code R. 42-1.012(3). As permitted by the same rule,

Petitioner filed a Response to those comments on March 17, 2008.

On March 7, 2008, Petitioner filed a Supplement to the

Petition. The Supplement was filed because after the

preparation and filing of the Petition, certain lands within the

proposed expansion parcels changed. The original landowners

sold some of the lots they owned to individual landowners. The

Supplement contains a list of the new individual landowners of

each lot and the additional Consents and Joinders of Landowners

executed by those individual landowners.

The Transcript of the hearing was filed on April 3, 2008.

On the same date, Petitioner filed a Proposed Report of Findings

and Conclusions, which has been considered in the preparation of

this Report.

SUMMARY OF RECORD

A. History of the District

1. The testimony of witness Ronald E. Kolar, a

professional engineer, addresses the previous boundary

amendments of the District, the procedural history behind the

current Petition, and the location and nature of the lands

sought to be added to the District. His testimony and the

exhibits received in evidence make up the record which underpin

this portion of the Report.

2. The District was established by the Commission through

the adoption of Florida Administrative Code Rule 42H-1.001 on

November 20, 1989, after a petition to establish the District

was approved. The related proceedings before DOAH are reported

in the case of In re: A Rule to Establish the Crossings at

Fleming Island Community Development District , DOAH Case No. 89-

1850, 1989 Fla. Div. Adm. Hear. LEXIS 7292 (Report of Findings

and Conclusions July 22, 1989). A legal description of the

District's boundaries, as amended, is found in Florida

Administrative Code Rule 42H-1.002. The District is located

entirely within Clay County, Florida, and generally lies

northwest, southwest, and southeast of the intersection of U.S.

Highway 17 and County Road 220 on Fleming Island, which is north

of Green Cove Springs and just south of Orange Park. According

to the Report of Findings and Conclusions, the original District

encompassed "some 2,600 acres." Id. at *5.

3. After the District's Board submitted a request to amend

the boundaries, effective March 23, 1998, the Commission amended

Florida Administrative Code Rule 42H-1.002 by adding a net

addition of approximately 228.91 acres. 2 See FLWAC Case No. CDD-

97-002. This boundary amendment did not exceed the acreage

thresholds set forth in Section 190.046(1)(f)1., Florida

Statutes. (The acreage threshold in the cited statute is "a

total of 250 acres.") Therefore, the Board conducted the local

public hearing.

4. In August 1998, Petitioner filed another petition with

the Commission seeking to amend the District's boundaries by

adding approximately 46 acres. After a local public hearing was

conducted by DOAH, a Recommended Order was issued recommending

that the petition be approved. See In re: Petition for Rule

Amendment: The Crossings at Fleming Island Community Development

District , DOAH Case No. 98-4159, 1998 Fla. Div. Adm. Hear. LEXIS

6035 (DOAH Dec. 22, 1998). This recommendation was adopted by

the Commission, and Florida Administrative Code Rule 42H-1.002

was amended effective March 17, 1999, to add the 46 acres to the

District's boundaries. 3

5. The petition in Case No. 98-4159 alleged that the

acreage sought to be added, when combined with the 228 acres

previously added in March 1998, exceeded the threshold contained

in Section 190.046(1)(f)1., Florida Statutes. (That statute

provides in part that "in no event shall all such petitions to

amend the boundaries ever encompass more than a total of 250

acres"; otherwise, petitions to amend the boundaries shall be

considered petitions to establish a new district and must follow

the procedures specified in Section 190.005, Florida Statutes.)

Cumulatively, the 1998 and 1999 boundary amendments resulted in

an approximate 10.64 percent increase in acreage over the

initial District. The petition further alleged that only the

consent from the owners of the lands sought to be added was

required to be included in the petition. No consents were

tendered by owners of lands within the existing District. A

copy of the petition is found in Exhibit B of Hearing Exhibit E.

After receiving and reviewing the petition, the Commission's

Secretary issued a letter dated September 18, 1998, which found

that the petition was sufficient in that it included all the

information required by Chapter 190, Florida Statutes. See

Exhibit C of Hearing Exhibit E. Specifically, the Commission's

letter stated that "[t]his letter constitutes certification that

all required elements, as defined in section 190.005(1)(a),

Florida Statutes, (F.S.), are contained in the petition." Id.

6. Without saying so explicitly, in DOAH Case No. 98-4159

it can be inferred that Petitioner, the Administrative Law

Judge, and the Commission implicitly acknowledged that when

expanding a district under the unique circumstances present in

that case, consent from all owners within an existing district

is not a "procedure" under Section 190.005(1)(a), Florida

Statutes, that must be strictly followed.

7. On June 23, 2006, Petitioner filed a petition with the

Commission seeking to add 41 acres to the District's boundaries.

That matter was assigned FLWAC Case No. CDD-06-007. The

petition alleged that the acreage sought to be added, when

combined with the acres previously added, exceeded the 250-acre

threshold contained in Section 190.046(1)(f)1., Florida

Statutes. Consistent with the Commission's prior decision in

Case No. 98-4159, the petition further alleged that only the

consent from the owners of the lands sought to be added was

required to be included in the petition, and that consent from

the Board constituted consent under Chapter 190, Florida

Statutes, for all landowners within the existing District. As

evidence of the Board's consent for all lands within the

existing District, the Petition attached Resolution 2004-04 of

the Board authorizing the boundary amendment.

8. After receiving and reviewing the petition, the

Commission's Secretary issued a letter dated June 29, 2006,

stating that the petition was sufficient in that it included all

the information required by Chapter 190, Florida Statutes. See

Exhibit G of Hearing Exhibit E. The letter further stated that

it constituted certification that "all required elements, as

defined in section 190.005(1)(a), Florida Statutes (F.S.), were

contained in the petition." There was no indication in the

letter, either explicitly or implicitly, that consent from all

landowners within the existing District was a required element

of the petition.

9. After the Commission certified that the petition was

sufficient, it solicited comments from the Department and the

Council. No adverse comments were received. The petition was

then forwarded by the Commission to DOAH, and it was assigned

DOAH Case No. 06-2334. Thereafter, Petitioner advised DOAH that

it wished to withdraw its petition. By Order dated August 21,

2006, jurisdiction in the matter was relinquished to the

Commission, and a Final Order of Dismissal was entered by the

Commission on August 24, 2006.

B. The Current Petition and Related Matters

10. On January 15, 2007, the District's Board adopted

Resolution No. 2007-04 authorizing a boundary amendment through

the filing of a new petition. On March 15, 2007, the Petition

and a check in the amount of $1,500.00 were submitted to the

County. On August 13, 2007, Petitioner submitted to the County

a second check for filing fees in the amount of $13,500.00, or a

total filing fee of $15,000.00. The County chose to take no

action on the Petition.

11. On March 16, 2007, the Petition was also submitted to

the Commission. The current Petition is a refiling of the 2006

petition, the only change being a reduction in the acreage

subject to the boundary amendment from 41 acres to 21 acres.

The only substantive differences between the instant Petition

and that filed in 2006 are the reduction in size of two of the

parcels sought to be added and updating the landowner consents

for the expansion parcels. No new lands have been added. The

Petition seeks to amend Florida Administrative Code Rule 42H-

1.002 by adding approximately 20.7 acres to the District, which

would result in an increase in the District's acreage of less

than one percent from both the District's initial acreage

(around 2,600 acres) and its current acreage (2,848 acres).

After expansion, the District will encompass a total of 2,868.7

acres. There are no parcels within the expansion parcels or the

proposed amended boundaries that are to be excluded from the

District.

12. The land to be added consists of seven areas. See

Exhibits A through G of Petition Exhibit 4. The first parcel

(Exhibit A) consists of approximately 2.8937 acres on which an

old mobile home and an abandoned road were once situated. The

land has now been purchased by the developer and eight new homes

will be placed on the property. The second parcel (Exhibit B)

consists of only 0.7690 acres and lies directly across the

street from other District land. The third parcel (Exhibit C)

consists of 1.4227 acres and is completely surrounded by other

District land. The fourth parcel (Exhibit D) consists of 1.296

acres and includes part of an old railroad right-of-way and

small portions of other lots. The fifth parcel (Exhibit E) will

add 6.17 acres and previously was the site of a trash dump which

has now been cleaned up. The sixth parcel (Exhibit F) consists

of 1.008 acres and contained an old house, which has now been

removed. The final parcel (Exhibit G) is the largest tract

(7.10 acres) and consists of lands surrounded on three sides by

other District residents. Development on that property will

include 28 lots, some of which are already occupied.

13. Although not noted in the Petition, the District's

Response to the Notice of Insufficiency indicates that the

current members of the Board are Alan DiMaio-Leach, Stephen

Czajkowski, Amy Wilson, Walt Joba, and Ryan Alderson, all

residents of the State of Florida. See Exhibit L to Hearing

Exhibit E.

14. Petition Exhibit 1 is the Commission's letter dated

June 29, 2006, containing the certification that "all required

elements, as defined in section 190.005(1)(a), Florida Statutes"

were "contained in the petition" filed in FLWAC Case No. CDD-06-

007.

15. Petition Exhibit 2 sets forth the general location of

the existing District. As noted above, the District is located

within Clay County just north of County Road 220 and between

U.S. Highway 17 and Blanding Boulevard. It currently covers

approximately 2,848 acres of land.

16. Petition Exhibit 3 is the metes and bounds description

of the external boundaries of the existing District, while

Petition Exhibit 4 consists of the general location, and the

metes and bounds description, of the lands to be added to the

District.

17. Petition Composite Exhibit 5 is the documentation of

ownership and consent to the inclusion of the expansion parcels

into the District. Many of the consents are recorded in the

real property records of the County and are binding on future

owners unless revoked after three years from the date of

execution. No revocations of consent have been received into

the record. The Petition was supplemented to update consents on

March 7, 2008. The Petition alleges that the favorable action

of the Board constitutes consent for all landowners within the

boundary of the District pursuant to Section 190.046(1)(e),

Florida Statutes, as is evidenced by the District's submission

of the Petition.

18. Petition Exhibit 6 is the District's Resolution 2007-

04, which was approved on January 15, 2007, directing the

Chairman and all District staff to file a petition with the

Commission, requesting the adoption of a rule amending the

District's boundaries, authorizing such other actions as are

necessary in furtherance of the boundary amendment process, and

providing an effective date.

19. Petition Composite Exhibit 7 includes letters dated

July 25 and 26, 2006, from the Council and Department,

respectively, in response to the Commission's inquiries in FLWAC

Case No. CDD-06-007. The Council's letter noted that "[t]his

petition does not appear to be in conflict with [the Fleming

Island Development of Regional Impact or the associated

Development Order]," while the Department acknowledged that it

"has not identified any issues of concern." The Exhibit also

includes a Zoning Map depicting the existing land uses adjacent

to the expansion parcels and a map depicting the designation of

the future general distribution, location, and extent of public

and private land uses proposed for the area by the Future Land

Use Element (FLUE) of the County's Comprehensive Plan (Plan).

20. Petition Exhibit 8 sets forth the estimated

construction costs and timetable prepared at the time of the

filing of the Petition for the construction of the improvements

to be constructed within the expansion parcels. These costs are

estimated to total $1,600,000.00.

21. Petition Exhibit 9 is the Statement of Estimated

Regulatory Costs (SERC), which indicates that it was prepared in

accordance with the requirements of Section 120.541, Florida

Statutes.

22. Petition Exhibit 10 is the Authorization of Agent form

indicating that Jonathan T. Johnson, Esquire, is the District's

authorized agent for all matters relating to this Petition.

23. On March 7, 2008, Petitioner filed a Supplement to the

Petition with FLWAC. The Supplement was filed because after the

preparation and filing of the Petition, certain lands within the

proposed expansion parcels changed. The original landowners

sold some of the lots they owned to individual landowners. The

Supplement includes a list of the new individual landowners and

updated Consent and Joinders of Landowners executed by the new

individual landowners who had purchased property within the

expansion parcels.

24. On the same date, Petitioner filed with DOAH a Notice

of Filing Supplement to the Petition to Expand the Crossings at

Fleming Island Community Development District as a Supplement to

the Petitioner's Local Hearing Evidence and requested that it be

accepted into the record. The Supplement is hereby accepted and

made a part of this record.

25. The sole purpose of this proceeding was to consider

the amendment of the District, as proposed by Petitioner.

Because Section 190.005, Florida Statutes, applies in this

matter, and it contains the statutory criteria to be considered,

a summary of the evidence relating to each enumerated section of

the statute is set forth below.

SUMMARY OF EVIDENCE AND TESTIMONY

a. Whether all statements contained within the Petition

have been found to be true and correct.

26. Hearing Exhibit A consists of the Petition and ten

exhibits, as filed with the Commission. Mr. Ronald E. Kolar,

developer representative, testified that he had reviewed the

contents of the Petition and exhibits. He noted that only one

correction to his pre-filed testimony was necessary, that being

on page 3, line 12, where he replaced the word "DOAH" with the

words "the District's Board of Supervisors." Mr. Kolar prepared

Petition Exhibits 2, 3, 4, 5, 7, and 8 and indicated that those

exhibits were true and correct, to the best of his knowledge.

27. Mr. Stephen Czajkowski is Vice-Chairman of the

District's Board and has served as a Board member for the past

three years. Mr. Czajkowski testified that he had reviewed the

Petition and attached Exhibits 1 through 10 and to the best of

his knowledge they were true and correct.

28. Carol Rogers is a certified public accountant who

serves as financial advisor to the District. Witness Rogers

reviewed Petition Exhibits 2, 4, 6, 8, and 9 and stated that to

the best of her knowledge, they were all true and correct.

29. The final witness was Yvette Hartsfield, who is the

District Manager for the District. On line 32 of page 6 of her

testimony, Ms. Hartsfield identified Hearing Exhibit S as the

testimony of Carol Rogers. This is a typographical error and

should have been Exhibit Q. No other corrections or changes

were noted. The witness testified that she had reviewed the

contents of the Petition and Exhibits 1 through 10, and to the

best of her knowledge, all were true and correct.

30. The testimony is that the Petition and exhibits as

amended and supplemented are true and correct.

b. Whether the establishment of the District, as amended,

is inconsistent with any applicable element or portion of the

State Comprehensive Plan or any effective local government

comprehensive plan.

31. Mr. Kolar testified that, as a professional engineer,

he believes that the amended district is not inconsistent with

any portion or element of the State Comprehensive Plan found in

Chapter 187, Florida Statutes. Specifically, he found three

subjects of the State Plan codified in Section 187.201, Florida

Statutes, to be relevant, Subjects 15 (land use), 17 (public

facilities), and 25 (plan implementation), and that the

District, as amended, will not conflict with those subjects. He

further testified that the amended District is not inconsistent

with any portion or element of the County's Plan, including

relevant provisions of the FLUE, Intergovernmental Coordination

Element, and Capital Improvement Element.

32. Ms. Hartsfield identified Hearing Exhibit I as a

letter to the Department from Barbara Leighty, Commission Clerk,

requesting review of the Petition dated December 17, 2007, which

is the subject of this proceeding. The response, if any, is not

of record. However, in an earlier letter dated July 26, 2006, a

Department representative indicated that after reviewing the

2006 petition, the Department had no "issues of concern" with

the proposed amendment.

33. The testimony and exhibits indicate that the amended

District will not be inconsistent with any applicable element or

portion of the State Comprehensive Plan or the County's Plan.

c. Whether the area of land within the proposed District,

as amended, is of sufficient size, is sufficiently compact, and

is sufficiently contiguous to be developable as one functional

interrelated community.

34. Mr. Kolar testified that with the net expansion of

approximately 20.7 acres, the District is still of sufficient

size, compactness, and contiguity to be developed as an

interrelated community.

35. Mr. Czajkowski also testified that the amended

District is of sufficient size, is sufficiently compact and

contiguous to be developable as one functionally-interrelated

community.

36. Finally, Ms. Hartsfield echoed the testimony of the

previous two witnesses and testified that, based on her

experience in district management, the amended District is of

sufficient size, is sufficiently compact, and is sufficiently

contiguous to be developable as one functional, interrelated

community.

37. The testimony was that Petitioner has demonstrated

that the District, as amended, will be of sufficient size, is

sufficiently compact, and is sufficiently contiguous to be

developed as a single functionally interrelated community.

d. Whether the District, as amended, is the best

alternative available for delivering community development

services and facilities to the area that will be served by the

expanded District.

38. Mr. Kolar opined that the District is the best

alternative to provide community development services and

facilities to the area to be added into the District because the

District is a long-term, stable, perpetual entity capable of

maintaining the facilities over their life.

39. Ms. Rogers also testified that the amended District is

the best alternative available for providing the District

development services to the area to be added to the District

because the District generally restricts costs to those who

benefit from the District services provided. In addition, she

noted that the use of non-ad valorem assessments and maintenance

assessments to fund the infrastructure and facilities ensures

that the property receiving the benefit of the District service

is the same property to pay for those services.

40. Ms. Hartsfield also opined that the amended District

is the best alternative available to provide the proposed

community development services and facilities.

41. The testimony was that Petitioner has demonstrated

that the amended 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 District, as amended, will be incompatible

with the capacity and uses of existing local and regional

community development services and facilities.

42. Mr. Kolar testified that the services and facilities

to be provided to the expansion parcels by the District are not

incompatible with the capacities and existing uses of existing

local and regional community facilities and services. He added

that the services and facilities to be provided by the District

are required by, or consistent with, the Development Order

governing development on these lands. Finally, he stated that

none of the proposed services or facilities are presently being

provided by another entity for the lands to be added.

43. Mr. Czajkowski reached the same conclusion and

testified that the services and facilities provided by the

amended District are not incompatible with the uses and existing

local and regional facilities. In his opinion, the District is

the best alternative available for providing the community

development services and facilities to the expansion parcels.

44. Ms. Rogers also testified that the amended District is

not incompatible with the uses and existing local and regional

facilities and services. She further stated that the District's

facilities and services with the amended boundaries will not

duplicate any available regional services or facilities, nor

will the amendment impact the ability of the District to

continue to successfully manage its existing services and

facilities.

45. Ms. Hartsfield further testified that, based on her

experience in district management, the District as amended is

not incompatible with the uses of the existing local and

regional facilities and services.

46. The testimony was that the community development

services and facilities of the District, as 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 will be served by the District,

as amended, is amenable to separate special district government.

47. Mr. Kolar stated that this criterion has been

satisfied for two reasons. First, based upon his experience

with the operations and structure of the District, he concluded

that the amended District is amenable to separate special

district government. Second, he noted that the District has

been functioning as a separate special district government for

twenty years.

48. Mr. Czajkowski also testified that the amended

District is amenable to being served by separate special

district government because the District has functioned well as

a separate special district government since 1987 and that

adding the expansion parcels will not affect its ability to

serve as a separate special district government.

49. Witness Rogers further testified that the new area

designated to be included in the District is amenable to being

served by a separate special district government.

50. Finally, Ms. Hartsfield testified that, based on her

experience in district management, the amendment will not affect

the District's ability to function as a separate special

district government.

51. The testimony was that from the perspectives of the

four witnesses, the expanded District will continue to be

amenable to separate special-district government.

Other Requirements Imposed by Statute or Rule

a. Elements of the Petition

52. With the exception of having consent of all owners,

the Commission has certified that the Petition meets all of the

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

However, in its transmittal letter to DOAH dated December 17,

2007, the Commission addressed this issue by noting that:

In this particular case, however, counsel

for Petitioner has represented that the

negative effects to the residents from

addition of 21 acres, which is less than 1%

increase of the CDD, are de minimis .

Moreover, the lands to be added are mainly

infill to the already existing CDD. Because

there are thousands of residential and

commercial landowners, adherence to a

sterile literal reading of the statute

requiring all landowner consent, given the

facts and parcel descriptions in

Petitioner's November 13, 2007, letter to

the Commission (incorporated by reference

herein), would be unreasonable, especially

in light of the prior amendments. This

determination results from the unique

factual circumstances of the instant

District and in no way shall be interpreted

to mean that the Commission waives the

requirement that petitions to amend

community development districts that surpass

the threshold in [Section] 190.046(1)(g)

must contain the landowner consent of all

real property included within the district's

boundaries.

b. Statement of the Estimated Regulatory Costs (SERC)

53. Carol Rogers, who is a certified public accountant and

financial advisor to the District, prepared the SERC. That

document has been received in evidence as Petition Exhibit 9.

It contains all elements required under Section 120.541, Florida

Statutes.

54. Ms. Rogers' testimony includes an economic analysis of

the effect of the amendment of the District's boundaries. Based

on her experience with other districts, the witness opined that

the amended District is expected to be financially viable and

feasible.

55. The witness further testified that, as a result of the

boundary amendment, existing residents will most likely benefit

from both reduced operations and maintenance assessments and

debt assessments as a result of the increase in the District's

assessment base.

56. The testimony and exhibits are that the Petition

contains a SERC which meets the requirements of Section 120.541,

Florida Statutes.

c. Other Requirements

57. According to Mr. Kolar, Petitioner has complied with

the provisions of Section 190.005(1)(b)1., Florida Statutes, in

that the County was provided copies of the Petition and was paid

the requisite filing fee.

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

petitioner 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 a community subsection of The Florida Times-Union

on January 31 and February 7, 14, and 21, 2008.

59. Section 190.005(1)(d), Florida Statutes, provides in

part that "the general public shall be given an opportunity to

appear at the hearing and present oral or written comments on

the petition." Three members of the public, all of whom reside

within the District, presented oral comments at the hearing.

60. Ronald Dill resides at 2311 Silver Oak Court, Orange

Park, Florida. Mr. Dill read a prepared statement into the

record in which he stated his opinion that the District's

facilities were overcrowded. He also stated that he believed

all landowners within the existing District had not consented to

the boundary amendment. Mr. Dill further questioned whether

consents were in place for owners of the lands sought to be

added. However, he did not identify any property for which

consent had not been obtained or for which a prior consent was

no longer effective. He also acknowledged that he is not the

owner of any lands that are sought to be added to the District.

61. Jenise Whitmire, a former Chairperson of the Board,

resides at 1642 Waters Edge Drive, Orange Park, Florida. She

stated that she was unsure if appropriate consents had been

obtained from landowners sought to be added to the District.

However, she did not identify any specific property for which

consent had not been obtained. She also generally questioned

the experience of witnesses Rogers and Hartsfield.

62. Michael Heemer resides at 1656 Fairway Ridge Drive,

Orange Park, Florida. Mr. Heemer's lot is located within a

small existing subdivision known as Fairway Ridge at Eagle

Harbor, which is one of the parcels being added to the District.

See Exhibit G of Petition Exhibit 4. Mr. Heemer stated that he

and other residents of the subdivision strongly desire for the

land to be added to the District.

63. On March 5, 2008, or less than 10 days after the local

public hearing was conducted, Joseph E. Snyder, who resides

within the District, filed written comments in this matter. See

Fla. Admin. Code R. 42-1.012(3). In his comments, Mr. Snyder

states that (a) the number of District residents are higher than

first planned; (b) the school and amenity facilities located

within the District are currently beyond capacity, the

District's facilities were originally designed based on the

original District boundaries, and the capacities of those

facilities are further exceeded by the proposed boundary

amendment of 20.7 acres; (c) Section 190.046(1)(g), Florida

Statutes, requires consent from 100 percent of the landowners

within the existing District in order to expand the District;

and (d) some of the lands being added cannot be characterized as

infill.

64. On March 17, 2008, Petitioner filed its Response to

Comments by Joseph E. Snyder Dated March 5, 2008 (Response).

The Response was intended to refute Mr. Snyder's comments. As

to the statement that the developer has increased the number of

residents within the District beyond which was originally

contemplated at the time of the District's establishment,

Petitioner pointed out that the Eagle Harbor Development of

Regional Impact approved construction of 4,622 dwelling units

while the current development plan contemplates a build-out of

only 3,280 dwelling units, inclusive of the dwelling units

located within the proposed annexation parcels. The Response

also noted that population is not a factor to be considered

under Section 190.005(1)(e), Florida Statutes. As to the

statement that the school and amenity facilities located within

the District are currently beyond capacity, the Response points

out that the proposed boundary amendment does not affect school

zones or school construction. It adds that the District's

facilities were designed to comply with the requirements of the

applicable Development of Regional Impact and were in no way

based on the original District boundaries. Petitioner further

pointed out that the constructed amenity facilities located

within the District exceed the facilities originally planned,

and that the District's amenity facilities are public.

Therefore, because any member of the public can use the

facilities if they pay the user fee, denial of the boundary

amendment would not eliminate the possibility of capacity use.

Finally, the District's Vice Chairman testified at the local

public hearing that the boundary amendment would not negatively

affect the residents' ability to use amenity facilities.

65. Mr. Snyder also stated that consent of 100 percent of

the landowners within the existing District is required for any

future boundary amendment. In its Response, Petitioner disputes

this assertion and states that 100 percent consent from existing

landowners is not required by Chapter 190, Florida Statutes.

66. Finally, Mr. Snyder stated in his letter that the

character of some of the lands sought to be added cannot be

described as infill. Petitioner has responded by stating that

whether lands sought to be added are infill is not a factor that

bears on a petition to amend a district's boundaries as set

forth in Sections 190.046(1) and 190.005(1)(e), Florida

Statutes. Petitioner added that it is important to note that

the lands sought to be added are subject to the same community

development approvals as the lands in the existing District.

APPLICABLE LAW

67. This proceeding is governed by Chapters 120 and 190,

Florida Statutes, and Florida Administrative Code Rule Chapter

42-1.

68. Section 190.46(1)(g), Florida Statutes, provides that

"[p]etitions to amend the boundaries of the district which

exceed the amount of land specified in paragraph (f) ["more than

250 acres"] shall be considered petitions to establish a new

district and shall follow all of the procedures specified in

s. 190.005."

69. The evidence was that Petitioner has satisfied the

requirement in Section 190.005(1)(a)2., Florida Statutes, that a

petitioner be required to provide "[t]he written consent to the

establishment of the district by all landowners whose real

property is to be included in the district . . . ." This

conclusion is based upon the precedent established in DOAH Case

No. 98-4159, the Commission's certification letter in FLWAC Case

No. CDD-06-007, and the Commission's December 17, 2007,

transmittal letter in this case, which stated in relevant part

that under the "unique factual circumstances" present here, a

strict compliance with Section 190.005(1)(a)2., Florida

Statutes, would be "unreasonable." Given these circumstances,

consent from the Board, as evidenced by its resolution,

constitutes the necessary consent of existing landowners under

the foregoing statute.

70. 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 general paid

circulation in the County and of general interest and readership

once each week for the four consecutive weeks immediately prior

to the hearing.

71. The evidence was that Petitioner has met the

requirements of Section 190.005(1)(b), Florida Statutes,

regarding the submission of the Petition and satisfaction of

filing fee requirements.

72. Petitioner bears the burden of establishing that the

Petition meets the relevant statutory criteria set forth in

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

73. The evidence was that all statements contained within

the Petition as corrected and supplemented are true and correct.

§ 190.005(1)(e)1., Fla. Stat.

74. The evidence was that the amendment of the District is

not inconsistent with any applicable element or portion of the

State Comprehensive Plan or the effective local comprehensive

plan. § 190.005(1)(e)2., Fla. Stat.

75. The evidence was that the area of land within the

amended 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.

76. The evidence was that the District, as amended, 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.

77. The evidence was that the amended District's services

and facilities 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.

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

District, as amended, 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, the transcript of the hearing, resolutions adopted by

local general-purpose governments," and the factors listed in

that subparagraph. Based on the record evidence, as corrected

and supplemented, the Petition appears to meet all statutory

requirements, and there appears to be no reason not to grant the

Petition to amend the boundaries of the District.

DONE AND ENTERED this 29th day of April, 2008, in

Tallahassee, Leon County, Florida.

S

DONALD R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 29th day of April, 2008.

ENDNOTES

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

2007 version.

2/ This expansion increased the District's size to

approximately 2,801.21 acres. Exhibit B to Hearing Exhibit E.

3/ After this expansion, the District consisted of

approximately 2,847.57 acres. Exhibit B to Hearing Exhibit E.

COPIES FURNISHED:

Jerry McDaniel, Director

Florida Land and Water

Adjudicatory Commission

The Capitol, Room 1802

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

Jason Gonzalez, General Counsel

Office of the Governor

The Capitol, Room 209

Tallahassee, Florida 32399-0001

Michael C. Eckert, Esquire

Hopping Green & Sams

Post Office Box 6526

Tallahassee, Florida 32314-6526

Shaw P. Stiller, General Counsel

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399-2100