08-003029 In Re: Petition To Establish The Wiregrass Community Development District vs. * Status: Closed Recommended Order on Thursday, August 28, 2008.

Summary: Petitioner proved criteria for establishing a community development district.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: PETITION TO ESTABLISH )

THE WIREGRASS COMMUNITY ) Case No. 08-3029

DEVELOPMENT DISTRICT )

)

REPORT OF ADMINISTRATIVE LAW JUDGE TO

THE FLORIDA LAND AND WATER ADJUDICATORY COMMISSION

Notice was given and on August 15, 2008, a local public

hearing was conducted in Wesley Chapel, Florida, pursuant to

Section 190.005(1)(d), Florida Statutes, by J. Lawrence

Johnston, Administrative Law Judge (ALJ) of the Division of

Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Mark K. Straley, Esquire

John M. Vericker, Esquire

Straley & Robin

100 East Madison Street

Suite 300

Tampa, Florida 33602-4703

The issue before the Florida Land and Water Adjudicatory Commission ("FLWAC") in this proceeding is whether to grant the Petition to Establish Wiregrass Community Development District (the "Petition") dated April 15, 2008. The local public hearing

was conducted for the purpose of gathering information in

anticipation of rulemaking by FLWAC.

PRELIMINARY STATEMENT

Locust Branch, LLC (the "Petitioner") filed the Petition

with the Secretary of FLWAC on April 18, 2008. It requested

that FLWAC adopt a rule to establish a uniform community

development district, to be known as the Wiregrass Community

Development District (the "District"), on certain property

situated wholly in the unincorporated area of Pasco County,

Florida (the "County"). Simultaneously with filing the

Petition, the Petitioner delivered the Petition and its

exhibits, along with the requisite filing fee, to the County.

The land within the external boundaries of the proposed

District is neither contained within nor contiguous to the

boundaries of any municipality. Section 190.005(1)(c), Florida

Statutes, provides that the county containing all or a portion

of the lands within the proposed District has the option to hold

a public hearing within forty-five (45) days of the filing of

the Petition. The County opted not to hold such a hearing.

On June 18, 2008, the Secretary of FLWAC certified that the

Petition contained all required elements and forwarded it to

DOAH for the purpose of holding the public hearing required

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

The local public hearing was held at 9:00 a.m., on

August 15, 2008, at the offices of Rizzetta & Company, Inc.,

located at 5844 Old Pasco Road, Suite 100, Wesley Chapel,

Florida. Petitioner published the notice of the hearing in

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

At the local public hearing, Petitioner presented the

testimony of John H. McKay, Director of Planning and Compliance

for Rizzetta & Company, Inc., the proposed District’s management

and fiscal consultant, an expert in district management;

Lawrence F. Kistler, Operations Manager, Land Development for

King Engineering Associates, Inc., the proposed District’s

engineer, an expert in civil engineering and public

infrastructure; David J. Evans, President of Locust Branch, LLC,

on behalf of the Petitioner; and William H. Porter, President of

Wiregrass Ranch, Inc., a representative of Wiregrass Ranch,

Inc., as one of the landowners and as a representative for the

family trust and other landowners within the proposed community

development district. No one from the public or the County

appeared at the public hearing.

At the local public hearing, Petitioner introduced the

following Exhibits into evidence:

Exhibit 1

Petition to Establish Wiregrass Community Development

District, including revised exhibits as of May 28, 2008.

Exhibit 2

Pre-Filed Testimony of John H. McKay.

Exhibit 3

Pre-Filed Testimony of David J. Evans.

Exhibit 4

Pre-Filed Testimony of Lawrence Kistler.

Exhibit 5

Affidavit of Publication from the St. Petersburg Times

newspaper, providing evidence that the public hearing notice for

this hearing was published on July 18, 2008, July 25, 2008,

August 1, 2008, and August 8, 2008, in accordance with the

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

Exhibit 6

Copy of Florida Administrative Weekly , Volume 34, Number

30, dated July 25, 2008, reflecting publication of local public

hearing by FLWAC.

On August 21, 2008, Petitioner filed the Transcript of the

local public hearing and a Proposed Report of Administrative Law

Judge to FLWAC, which has been considered and used in the

preparation of this Report.

SUMMARY OF THE REPORT

A. Overview

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

to establish a community development district ("CDD") consisting

of approximately 3,974.216 acres located within the

unincorporated boundaries of the County. The name of the

proposed District is the Wiregrass Community Development

District.

2. There are no parcels within the external boundaries of

the proposed District that are to be excluded from the District.

3. The estimated cost of the infrastructure facilities and

services that are currently expected to be provided to the lands

within the District is included in the Petition.

4. The sole purpose of this proceeding is to consider the

establishment of the District as proposed by the Petitioner.

Information relating to the managing and financing of the

service-delivery function of the proposed District was

considered. This report summarizes the relevant and material

evidence relating to Section 190.005(e)1.-6., Florida Statutes.

B. Whether all statements contained within the Petition have

been found to be true and correct.

5. Petitioner’s Exhibit 1 consists of the Petition and its

exhibits filed with FLWAC. Mr. Evans testified that the

Petition and its exhibits were true and correct to the best of

his knowledge.

6. Mr. Kistler testified that all the facts set forth in

the Petition were true and correct to the best of his knowledge.

Mr. Kistler also testified that the construction cost estimates

set forth in Exhibit F are true and correct to the best of his

knowledge.

7. Mr. McKay testified that he had prepared Exhibit H to

the Petition, the Statement of Estimated Regulatory Costs

(SERC).

8. The Petition included written consent to establish the

District from the owner or owners of one hundred percent of the

real property located within the lands to be included in the

proposed District.

9. The evidence indicates that the Petition and its

exhibits are true and correct.

C. 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.

10. Mr. Kistler reviewed the proposed District in light of

the requirements of the State Comprehensive Plan, Chapter 187,

Florida Statutes, and the Pasco County Comprehensive Plan.

11. The State Comprehensive Plan "provides long-range

policy guidance for the orderly social, economic and physical

growth of the State" by way of twenty-five subjects, and

numerous goals and policies. From a planning perspective, two

subjects of the State Comprehensive Plan apply directly to the

establishment of the proposed District, as do the policies

supporting those subjects.

12. Subject 15, Land Use, recognizes the importance of

locating development in areas with the fiscal ability and

service capacity to accommodate growth. The evidence indicates

that the proposed District will have the fiscal ability to

provide services and facilities, and will help provide

infrastructure in a fiscally responsible manner.

13. Subject 25, Plan Implementation, provides that

systematic planning shall be integrated into all levels of

government, with emphasis on intergovernmental coordination.

The evidence indicates that the proposed District is consistent

with this element of the State Comprehensive Plan because the

proposed District will systematically plan for the construction,

operation, and maintenance of the public improvements and the

community facilities authorized under Chapter 190, Florida

Statutes, subject to and not inconsistent with the local

government's comprehensive plan and land development

regulations. Additionally, the 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

the improvements. Finally, Section 189.415, Florida Statutes,

requires the District to file and update public facilities

reports with the County or City, which they may rely upon in

making any revisions to the local comprehensive plan.

14. From a financial perspective two subjects of the State

Comprehensive Plan apply directly to the establishment of the

proposed District, as do the policies supporting those subjects.

15. Subject 17, Public Facilities, provides that the State

shall protect substantial investments in public facilities, and

plan for and finance new facilities to serve residents in a

timely, orderly, and efficient manner. The evidence indicates

that the proposed District will be consistent with this element

because the District will (i) plan and finance the

infrastructure systems and facilities needed for the development

of lands within the District; (ii) be a stable, perpetual unit

of local government and to maintain the infrastructure servicing

the lands within the District; and (iii) allow growth within the

District to pay for itself at no cost to Pasco County.

16. Subject 20, Governmental Efficiency, provides that

governments shall economically and efficiently provide the

amount and quality of services required by the public. The

evidence indicates that the proposed District will be consistent

with this element because the proposed District will

economically and efficiently finance and deliver those public

services and facilities as needed by the District’s residents

and property owners. The evidence indicates that the proposed

District will be professionally managed, financed, and governed

by those whose property directly receives the benefits of the

services and the facilities provided. Creating the District

does not burden the general taxpayer with the costs for the

services or facilities inside the proposed District.

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

evidence indicates that the proposed District will not be

inconsistent with any applicable element or portion of the State

Comprehensive Plan or the Pasco County Comprehensive Plan.

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

sufficient size, is sufficiently compact, and is

sufficiently contiguous to be developable as one functional

interrelated community.

18. Mr. Kistler testified that all of the land in the

proposed District is part of a Master Planned Unit Development

approved by the County.

19. Mr. Kistler testified that the land within the

District is of sufficient size, compactness, and contiguity to

be developable as a functional interrelated community.

20. Mr. McKay testified that the proposed District covers

approximately 3,974.216 acres of land and that it is of

sufficient size and is sufficiently compact and contiguous to be

developed as a functionally interrelated community.

21. Mr. McKay testified that the proposed District is

sufficiently compact to function as one functionally

interrelated community because it can finance, construct, and

maintain the requisite improvements in a time and cost-efficient

manner on a long-term basis.

22. Mr. McKay testified that, from an economic

perspective, the property within the proposed District is in a

manner that lends itself to the efficient design, construction,

and maintenance of infrastructure and efficient governance.

E. Whether the proposed District is the best alternative

available for delivering community development services and

facilities to the area that will be served by the proposed

District.

23. It is currently intended that the proposed District

will construct or provide certain infrastructure improvements as

outlined in the Petition.

24. Installation and maintenance of infrastructure systems

and services by the proposed District are expected to be paid

through the imposition of special assessments. Use of such

assessments will ensure that the real property benefiting from

District services is the same property that pays for them.

25. Mr. McKay testified that, in his opinion, establishing

the proposed District is the best way to assure that growth

within the area encompassed by the District pays for itself.

26. Mr. McKay testified that the proposed District will

construct certain public infrastructure and community

facilities, which will be needed by the property owners and

residents of the proposed District. The community development

district mechanism allows the community development process to

take care of its own needs. It restricts costs to those who

benefit from the services provided.

27. Mr. McKay testified that non-ad valorem or special

assessments on the property within the proposed District are

expected to be used to repay any debt that is incurred.

Expenses for operations and maintenance are expected to be paid

through maintenance assessments. Use of non-ad valorem and

maintenance assessments or user fees ensures that the property

receiving the benefit of district services is the same property

to pay for those services. There are no effective alternatives

to provide for such financing structures.

28. Mr. McKay testified that a homeowners' association

(HOA) and/or developer would not have the ability to finance the

facilities or to provide long-term maintenance for any

facilities.

29. Mr. McKay testified that establishment of the District

would result in the lowest cost to landowners and to homeowners

as compared to other alternatives.

30. The community development district allows for the

independent financing, administration, operation, and

maintenance of the land within such a district. The community

development district allows district residents to ultimately

completely control the District.

31. From planning, economic, engineering, and special

district management perspectives, the evidence indicates 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.

F. 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.

32. Mr. McKay testified 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 because:

(i) the facilities proposed by the District do not currently

exist in the area; and (ii) once the improvements are

constructed, there will not be duplication in services.

33. Mr. Kistler testified that, in his opinion, the

proposed services to be developed within the proposed District

are compatible with the uses of the existing community because

those services and facilities are necessary but not currently

available on a centralized basis within the proposed District.

34. The evidence indicates that none of the proposed

services or facilities is currently being provided by another

entity for the lands to be included within the proposed

District.

35. The evidence indicates that the community development

services and facilities of the proposed District will not

duplicate any existing local or regional services or facilities.

36. The evidence indicates that the facilities proposed by

the proposed District are consistent with similar infrastructure

facilities that are currently servicing developments of a

similar nature.

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

amenable to separate a special-district government.

37. As cited previously, from planning, economic,

engineering, and special-district management perspectives, the

evidence indicates that 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 and

become a functionally interrelated community. The community to

be included in the proposed District needs certain basic

infrastructure systems, and the proposed District provides for

an efficient mechanism to oversee the construction and

installation of these improvements.

38. From planning, engineering, economic, and management

perspectives, the evidence indicates that the area that will be

served by the proposed District is amenable to separate special-

district government.

H. Other requirements imposed by statute or rule.

39. Chapter 190, Florida Statutes, and Florida

Administrative Code Rule Chapter 42-1 impose specific

requirements regarding the petition and other information to be

submitted to FLWAC.

Elements of the Petition

40. The Commission has certified that the Petition to

Establish the Wiregrass Community Development District has all

required elements, as defined by Section 190.005(1)(a), Florida

Statutes.

Statement of Estimated Regulatory Costs (SERC)

41. The SERC contains an estimate of the costs and

benefits to all persons directly affected by the proposed rule

to establish the proposed District--the State of Florida and its

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

and consumers.

42. Beyond administrative costs related to rule adoption,

the evidence indicates that the State and its citizens will only

incur minimal costs from establishment of the proposed District.

These costs are related to the incremental costs to various

agencies of reviewing periodic additional local government

reports. The proposed District will require no subsidies from

the State. Benefits will include improved planning and

coordination of development, which are difficult to quantify but

nonetheless substantial.

43. The proposed District’s debts and obligations will not

become a State or County obligation.

44. Administrative costs incurred by the County related to

rule adoption will be modest. The costs are offset by the

$15,000 filing fee paid by the Petitioner to the County.

45. Benefited property owners within the proposed District

will pay non-ad valorem or special assessments that will be used

to repay bonds issued to finance capital improvements within the

District. Locating within the District is voluntary.

Generally, the evidence indicates that the District financing

will be less expensive than maintenance through an HOA or

capital improvements financed through developer loans.

46. There is the potential for increase in State sales

tax. Also, impact fee and development permit revenue is

expected to be generated by private development within the

District, which would increase local revenues.

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

petition to include a SERC which meets the requirements of

Section 120.541, Florida Statutes. The Petition contains a

SERC. The evidence indicates that it meets all requirements of

Section 120.541, Florida Statutes.

Other Requirements

48. The evidence indicates that the Petitioner has

complied with the provisions of Section 190.005(1)(b), Florida

Statutes, in that the County was provided a copy of the Petition

and was paid the requisite filing fee.

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

notice of the public hearing was advertised on July 18, 2008,

July 25, 2008, August 1, 2008, and August 8, 2008, in the St.

Petersburg Times , a newspaper of general paid circulation in the

County, and of general interest and readership in the community,

not one of limited subject matter, pursuant to Chapter 50,

Florida Statutes. The published notices gave the time and place

for the hearing; a description of the area to be included within

the District, including a map showing the land to be included

within the District; and other relevant information. The

advertisement was published as a display advertisement, not in

the portion of the newspaper where legal notices and classified

advertisements appear.

Public Comment During the Hearing

50. No member of the public was present, nor was any

public comment received at the hearing.

51. No representative of the County appeared at the

hearing, nor was any written comment received from the County.

APPLICABLE LAW

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

Florida Statutes, and Florida Administrative Code Rule Chapter

42-1.

53. The proceeding was properly noticed pursuant to

Section 190.005, Florida Statutes, by publication of an

advertisement in a newspaper of general paid circulation in

Pasco County, and of general interest and readership once each

week for the four consecutive weeks immediately prior to the

hearing.

54. The evidence indicates that the Petitioner has met the

requirements of Section 190.005, Florida Statutes, regarding the

submission of the Petition and has satisfied the filing fee

requirements.

55. The Petitioner bears the burden of establishing that

the Petition meets the relevant statutory criteria set forth in

Section 190.005(1)(e)1-6, Florida Statutes.

56. The evidence was that all portions of the Petition and

other submittals have been completed and filed as required by

law.

57. The evidence was that all statements contained within

the Petition are true and correct.

58. The evidence was that the 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.

59. 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.

60. 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.

61. The evidence was 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.

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

proposed District is amenable to separate special-district

government.

CONCLUSION

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

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 upon the record evidence, the Petitioner has met all

statutory requirements and there appears to be no reason not to

grant the Petition and establish the proposed Wiregrass

Community Development District by rule. For purposes of

drafting such a rule, a metes and bounds description of the

proposed Wiregrass Community Development District can be found

as Petition Exhibit B. Also, the five persons designated to

serve as the initial members of the Board of Supervisors of the

Wiregrass Community Development District are identified in

Exhibit D of the Petition.

DONE AND ENTERED this 28th day of August, 2008, in

Tallahassee, Leon County, Florida.

S

J. LAWRENCE JOHNSTON

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 28th day of August, 2008.

COPIES FURNISHED:

Jerry L. McDaniel, Secretary

Florida Land and Water Adjudicatory Commission

The Capitol, Room 2105

Tallahassee, Florida 32399-0001

Jason Gonzalez, General Counsel

Office of the Governor

The Capitol, Suite 209

Tallahassee, Florida 32399-1001

Barbara Leighty, Clerk

Growth Management and Strategic Planning

The Capitol, Room 2105

Tallahassee, Florida 32399-0001

Carly Ann Hermanson, Esquire

Office of the Governor

The Capitol

400 South Monroe Street, Room 209

Tallahassee, Florida 32399-6536

Mark K. Straley, Esquire

Straley & Robin

100 East Madison Street

Suite 300

Tampa, Florida 33602-4703