09-002345 In Re: Petition To Merge Split Pine Community Development District And The Tolomato Community Development District vs. * Status: Closed Recommended Order on Friday, October 9, 2009.

Summary: Petition to merge two Community Developtment Districts across county lines appears to meet all criteria for merger. Tolomato Community Development District should be the surviving district.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: PETITION TO MERGE SPLIT )

PINE COMMUNITY DEVELOPMENT ) Case No. 09-2345

DISTRICT AND THE TOLOMATO )

COMMUNITY DEVELOPMENT DISTRICT )

)

REPORT OF FINDINGS AND CONCLUSIONS

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

initial two sessions of a local public hearing were conducted on

July 7, 2009, before David M. Maloney, an Administrative Law

Judge of the Division of Administrative Hearings (DOAH), at the

Ponte Vedra Beach Library Community Room, 101 Library Boulevard,

Ponte Vedra, Florida 32082 and the Baymeadows Residence Inn

Marriott, 8365 Dix Ellis Trails, Jacksonville, Florida 32256.

Two additional sessions were held on July 27, 2009, at the same

locations.

APPEARANCES

For Petitioners Tolomato Community Development District and

Split Pine Community Development District:

Cheryl G. Stuart, Esquire

Hopping Green & Sams, P.A.

119 South Monroe Street, Suite 300

Tallahassee, Florida 32301

ORAL COMMENT

Ellen A. Whitmer, pro se

1178 Nature's Hammock Road South

St. Johns, Florida 32259-2879

STATEMENT OF THE ISSUES

Whether the Florida Land and Water Adjudicatory Commission

(the “Commission”) should grant the Petition of the Tolomato

Community Development District ("Tolomato") and the Split Pine

Community Development District ("Split Pine") (collectively, the

"Districts" or "Petitioners") to merge the two community

development districts pursuant to Section 190.046(3), Florida

Statutes?

Concomitantly, whether the Commission should adopt a rule

pursuant to Section 190.005, Florida Statutes, that establishes

a single community development district with boundaries that

incorporate the areas of Tolomato and Split Pine merged into the

single district to be known as the Tolomato Community

Development District (the "Merged District")?

PRELIMINARY STATEMENT

Filed with the Commission on March 23, 2009, the District's

Petition is a comprehensive and extensive document composed of

nine pages of text and twelve attached exhibits for a total 408

pages. The Petition seeks to merge the Tolomato Community

Development District and Split Pine Community Development

District into one community development district. Once merged,

the Merged District will consist of approximately 13,370 acres

located in unincorporated St. Johns County and the City of

Jacksonville.

The Commission referred the Petition to the Division of

Administrative Hearings ("DOAH") on April 28, 2009. The

referral letter asked DOAH to conduct a local public hearing

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

sessions of the local public hearing were held in unincorporated

St. Johns County and the City of Jacksonville on July 7, 2009.

The St. Johns County session was held at 10:00 a.m. at the Ponte

Vedra Beach Library Community Room, 101 Library Boulevard, Ponte

Vedra Beach, Florida 32082. The City of Jacksonville session

was held at 3:00 p.m. at the Baymeadows Residence Inn Marriott,

8365 Dix Ellis Trail, Jacksonville, Florida 32256. Two

additional sessions followed on July 27, 2009, and were held at

the above mentioned locations at 11:00 a.m. in St. Johns County

and 2:00 p.m. in the City of Jacksonville.

The hearing sessions were conducted for the purpose of

taking testimony and public comment and receiving exhibits.

This report is of the public hearing and the hearing record. It

is submitted to the Commission for consideration in its

determination whether to adopt a rule to effectuate a merger of

the Districts’ boundaries and in so doing establish a single

community development district that merges what had been two

separate districts.

At the local public hearing, Petitioners presented the

testimony of six witnesses: Richard Ray, Gregory Barbour,

Douglas Miller, Donald Smith, Joe MacLaren, and James Perry.

The Petitioner also introduced seven exhibits, designated as

Exhibits A through G. At both St. Johns County sessions, one

member of the public, Ms. Ellen Whitmer, attended and presented

testimony.

The owners of one hundred percent of the land within the

existing Districts have consented to the merger. Neither St.

Johns County nor the City of Jacksonville elected to hold an

optional local hearing on the Petition and neither entity has

objected to the merger.

SUMMARY OF RECORD

Submission of the Petition to Local Governments

1. The Petition, see Exhibit A, Volumes 1 and 2, was

submitted to St. Johns County. It was submitted "along with a

filing fee check in the amount of $15,759 . . . filed with the

St. Johns County Planning Department on March 11, 2009."

(Exhibit D, WT-RR: P. 5, L. 43-44.)

2. The Petition was submitted to the City of Jacksonville

along with a check in the amount of $15,000 on March 11, 2009.

Filing of the Petition with the Commission and its Exhibits

3. The Petition was filed with the Commission on March 23,

2009.

4. Petition Exhibit 1 contains the Tolomato and Split Pine

resolutions that authorize the merger of the Districts and

approve a merger agreement.

5. Petition Exhibit 2 is a letter dated February 23, 2009.

Directed to Barbara Leighty, a staff member to the Commission;

it is from Counsel for the Districts and covers copies of the

Limited Offering Memorandums of Split Pine and Tolomato.

6. Petition Exhibit 3 is a "General Location Map" that

sets forth the general location of the existing Districts.

Split Pine currently covers approximately 2,015 acres of land

located entirely within Duval County, Florida, and the City of

Jacksonville. Tolomato currently covers approximately 11,355

acres of land located entirely within St. Johns County, Florida.

7. Petition Exhibit 4 consists of two rules, Florida

Administrative Code Rules 42TT-1.002 and 42SS-1.002. The two

rules set out the boundaries of the Districts by metes and

bounds descriptions.

8. Petition Exhibit 5 contains a "Metes and Bounds

Description for [the] Merged District."

9. Petition Exhibit 6 provides legal descriptions of

parcels located inside the boundaries of the Districts that are

excluded from the Districts. It also includes the property

owners of the excluded parcels and their last known addresses.

The excluded parcels will continue to be excluded from the

Merged District.

10. Petition Exhibit 7 is written consent to merge the

boundaries of Split Pine and Tolomato from the owners of one

hundred percent of the land within the existing Districts.

After execution, the documents reflecting consent were recorded

so as to "run with the land." (Exhibit D, WT-RR, at 4.)

11. Petition Exhibit 8 is a map that shows the existing

and future land use designations of the Merged District. It

depicts the existing and future general distribution, location

and extent of the public and private land uses proposed within

the Merged District.

12. Petition Exhibit 9 is described in Petitioners'

Proposed Report of Findings and Conclusions as "a map of the

proposed Merged District showing the current major trunk water

mains, sewer interceptors and outfalls." See , Petitioners'

Proposed Report of Findings and Conclusions, at 5 of 31.

Petition Exhibit 9 is a composite exhibit of four maps: the

Master Wastewater Plan (Exhibit 9A), the Master Reclaimed Water

Plan (Exhibit 9B), the Master Water Plan (Exhibit 9C) and the

Master Stormwater Plan of the Merged District (Exhibit 9D).

According to their legends, they depict any existing forcemains,

existing regional pump stations, proposed forcemains, proposed

regional pump stations, master pump stations, proposed reclaimed

watermains, existing reclaimed watermains, reclaimed watermains

"low-pressure from WWTP," reclaimed water storage and re-pump

distribution stations, existing watermains, proposed watermains,

drainage divides, sub-basin divides and flow arrows for the

lands to be included in the Merged District.

13. Petition Exhibit 10 is a summary of joint master

infrastructure costs for the Merged District. A joint

transportation sub-total of $411,279,000 plus a joint recreation

sub-total of $27,000,000 results in a joint master

infrastructure total of $428,279,000. This total added to a

Tolomato recreation sub-total of $18,000,000 and a Split Pine

recreation sub-total of $7,000,000 yields a master

infrastructure total for both districts of $463,279,000.

14. Petition Exhibit 11 is a summary of neighborhood

infrastructure costs for the two Districts. It shows a total of

estimated costs to be $356,040,000.

15. Petition Exhibit 12 is a Statement of Estimated

Statutes, the SERC was prepared by Fishkind & Associates for the

Boards of Supervisors of the two Districts.

The Petition's Allegations

16. The Petition alleges that merger of the boundaries of

the Districts should be granted for the following reasons:

a. As with the existing districts, the

surviving or new district, and all land uses

and services planned within the surviving or

new district, are not inconsistent with

applicable elements or portions of the

adopted State Comprehensive Plan or the

effective local Comprehensive Plans.

b. As with the existing districts, the area

of land within the surviving or new district

will continue to be of sufficient size,

sufficiently compact, and sufficiently

contiguous to be developable as one

functionally related community.

c. As with the existing districts, the

surviving or new district will continue to

prevent the general body of taxpayers in St.

Johns County and the City of

Jacksonville/Duval County from bearing the

burden for installation of the

infrastructure and the maintenance of the

above-described facilities within the

surviving or new district. The surviving or

new district will continue to be the best

alternative for delivering community

development services and facilities within

the applicable district boundaries without

imposing an additional burden on the general

population of the local general-purpose

government. The surviving or new district

will continue to allow for a more efficient

use of resources as well as providing the

opportunity for new growth to pay for

itself.

d. The community development services and

facilities of the surviving or new district

will not be incompatible with the capacity

and use of existing local and regional

community development services and

facilities. In addition, the surviving or

new district will serve as a perpetual

entity capable of making reasonable

provisions for the operation and maintenance

of the services and facilities for the

district lands.

e. As with the existing districts, the area

of land that will lie in the boundaries of

the surviving or new district is amenable to

separate special district government.

(Petition, at 7-8.)

The First Session of the Local Public Hearing

and Bond Counsel's Opinion Letter

17. The local public hearing on the Petition was noticed

and held on July 7, 2009, at 10:00 a.m., at the Ponte Vedra

Beach Library Community Room, 101 Library Boulevard, Ponte

Vedra, Florida 32082. Pursuant to Section 190.005, Florida

Statutes, notice of the public hearing was advertised over a

period of four consecutive weeks, on June 9, June 16, June 23

and June 30, 2009, in The St. Augustine Record, a newspaper of

general paid circulation in St. Johns County, and of general

interest and readership in the community, not one of limited

subject matter, pursuant to Chapter 50, Florida Statutes. The

published notice gave the time and place for the hearings, a

description of the area to be included within the Merged

District, including a map showing the lands of the Merged

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.

18. Petitioners presented the following witnesses, who

were all present at the hearing: Richard T. Ray, Chairman of

the Tolomato Community Development District; Gregory J. Barbour,

Chairman of the Split Pine Community Development District; James

A. Perry, District Manager for the Districts, with Governmental

Management Services, LLC; Douglas C. Miller, CEO of England-

Thims and Miller, Inc., ("England-Thims") "the district engineer

for both the Split Pine CDD and Tolomato Districts," TR-I, at

28; Donald R. Smith, Planner for the Districts, with England-

Thims; and Joseph MacLaren, Financial Advisor for the Districts,

with Fishkind and Associates, Inc.

19. The Petition, including its exhibits, and consisting

of two volumes in separate binders, was marked as Hearing

Exhibit A and admitted into the record. The Petition and its

exhibits except Exhibit 7 comprise Exhibit A, Volume 1.

Petition Exhibit 7 comprises Exhibit A, Volume 2.

20. Petitioners offered a certified copy of Chapter 2009-

142, effective July 1, 2009, which in relevant part amended

Section 190.046, Florida Statutes, relating to merger. It was

admitted as Hearing Exhibit B.

21. Petitioners also offered the opinion of bond counsel,

Greenberg Traurig, in a letter to the Florida Land and Water

Adjudicatory Commission dated January 30, 2009. It was admitted

as Hearing Exhibit C.

The Testimony of Petitioner's Witnesses

22. The first witness for the Petitioners was Richard Ray.

Mr. Ray testified that he has served as the Chairman of the

Tolomato Community Development District since the inception of

Tolomato.

23. Mr. Ray’s testimony addresses the steps that were

taken by the Board of Supervisors of Tolomato to file the

Petition. Tolomato filed several copies of the Petition, along

with a filing fee of $15,759, with the St. Johns County Planning

Department on March 11, 2009. The CDD Processing Group of St.

Johns County reviewed the Petition and counsel for the Districts

answered their questions. The Processing Group recommended

there was no need for the County to hold its own public hearing.

The County Commission concurred with the staff recommendation.

24. Mr. Ray testified that the Petitioners arranged

newspaper notice of the hearing to be published in the St.

Augustine Record for four consecutive weeks immediately

preceding the local public hearing.

25. Mr. Ray identified the Petition and its exhibits. He

testified:

[S]ince the filing of the Petition, the

Districts approved a correction to the legal

description of the proposed Merged District

found in Petition Exhibit 5. The Board of

Supervisors of Tolomato has adopted

Resolution No. 2009-04, supplementing

Tolomato Resolution 2009-01, approving the

use of a substituted legal description,

attached to my [pre-filed] testimony as

Exhibit RR-1.

(Exhibit D, WT-RR at 1.)

26. Mr. Ray stated the Districts currently serve one large

community, commonly called Nocatee, which is located in both St.

Johns County and the City of Jacksonville/Duval County. He

identified the overall master land plan for the Nocatee

Development of Regional Impact. Mr. Ray testified that roughly

85% of the land within the proposed Merged District is in St.

Johns County and approximately 15% of the land is in the City of

Jacksonville. The overall master land plan was admitted as

Hearing Exhibit E. Mr. Ray noted that there are major

transportation and recreation improvements under construction by

the Districts to serve all of residents of Nocatee, irrespective

of the County in which they live or the District by which they

are governed.

27. Mr. Ray further identified various parcels within

Nocatee that are split by the County boundaries and therefore

are today served by two different Districts.

28. Mr. Ray testified that the Petitioners are seeking to

merge the Districts because it would be more cost effective and

efficient to have one district. At the time of the

establishment of the Districts, the statutory definition of a

community development district included the clause, "the

boundaries of which are contained wholly within a single

county." See § 190.003(6), Fla. Stat. (2006). The law changed

in 2007 to eliminate the clause that restricted community

development districts to ones wholly within a single county.

See § 190.003(6), Fla. Stat. (2008).

29. Mr. Ray testified that Tolomato Resolution No. 2009-

06, states the preference of Tolomato to remain as the surviving

survive will be less disruptive than would be establishing a new

district. It will also allow the transition to a resident

elected board to proceed as originally contemplated.

30. Finally, Mr. Ray testified that the five persons

designated in the Petition to serve as the Board of Supervisors

of the Merged District are Richard O’Steen, Michael O’Steen,

Stephen Grossman, Austin Barbour, and himself, all five of whom

make up the current board of Tolomato.

31. The second witness for the Petitioners was Gregory

Barbour, Chairman of Split Pine.

32. Mr. Barbour testified that there was a change to

Petition Exhibit 5. After the Petition was filed, the Split

Pine Board adopted Resolution No. 2009-05. It supplements Split

Pine Resolution No. 2009-01 by approving the use of a

substituted legal description as the legal description of the

proposed Merged District. See Exhibit GB-1 to the Pre-filed

Testimony of Gregory Barbour, Hearing Composite Exhibit D.

33. Mr. Barbour identified Petition Exhibit 1A as a true

and correct copy of Split Pine's Resolution 2009-01. He also

testified that Petition Exhibit 7 "includes consent by all the

landowners within Split Pine at the time of the execution of

those documents and further evidences their consent to the

extension of landowner voting consistent with the existing

schedule at Tolomato." (Exhibit D, WT-GB: P. 2, L. 20-25.)

34. Mr. Barbour testified that the Petitioners filed the

Petition, along with a filing fee check in the amount of $15,000

with the City of Jacksonville’s Office of the General Counsel

and the Office of Planning and Development on March 11, 2009.

The City opted not to hold a hearing because a local public

hearing would be held in Duval County.

35. Mr. Barbour testified that the Petitioners arranged

newspaper notice of the hearing to be published in the Florida

Times Union for four consecutive weeks immediately preceding the

hearing. See Exhibit GB-3 to the Pre-filed Testimony of Gregory

Barbour, Hearing Composite Exhibit D.

36. Just as Mr. Ray had done on behalf of Tolomato,

Mr. Barbour testified that the Petitioners are seeking to merge

the Districts because of the 2007 change in the definition of

community development district. The Districts have worked

cooperatively to operate as efficiently as possible, using

inter-local agreements to avoid duplication. Now that Florida

law has changed, it makes economic and efficiency sense, in his

view, to merge the Districts.

37. Mr. Barbour testified that he expects that the overall

costs to those living in Nocatee will be less with the merger

than they otherwise would be without the merger. This is

because the overhead costs of two boards will be reduced, as

well as legal costs associated with preparing and functioning

under inter-local agreements.

38. Mr. Barbour testified that Split Pine adopted

Resolution No. 2009-07, which states the preference of Split

Pine is for Tolomato to remain as the surviving entity. He

further testified that Split Pine board members recognize that

their individual tenure as supervisors will end if Tolomato is

the surviving entity. See Exhibit GB-2 to the Pre-filed

Testimony of Gregory Barbour, Hearing Composite Exhibit D.

Mr. Barbour noted that because there are many residents within

Tolomato, having Tolomato survive will be less confusing to

those residents than a new district. Mr. Barbour testified that

there are presently no residents living in Split Pine.

39. Finally, Mr. Barbour testified that the five persons

designated to serve as the Board of Supervisors for the proposed

Merged District are Richard Ray, Richard O’Steen, Michael

O’Steen, Stephen Grossman, and Austin Barbour. The Split Pine

Board members will no longer hold office.

40. The third witness for the Petitioners was Douglas

Miller, the Chief Executive Officer of England-Thims. England-

Thims serves as the District Engineer of the Tolomato and Split

Pine Community Development Districts. Mr. Miller is qualified

as an expert in civil engineering and the provision of public

infrastructure.

41. Mr. Miller’s testimony at the local public hearing

primarily addresses the status of infrastructure construction by

the Districts and the associated costs.

42. Mr. Miller testified in the pre-filed testimony found

in Exhibit D that Petition Exhibit 5 has been revised. The

revised metes and bounds descriptions were adopted by both

Districts and sent to the Commission. He further testified that

the lands described in the revised metes and bounds descriptions

had some minor formatting changes and a correction was made to

eliminate a scrivener’s error that was found in the original

legal description for Tolomato. Tolomato’s original legal

description excluded a parcel that is not in the vicinity of the

District. See Exhibit DM-1 to the Pre-filed Testimony of

Douglas Miller, Hearing Composite Exhibit D. Mr. Miller also

testified that the capital facilities being provided by the

Districts will not change because of the merger. The proposed

Merged District will continue to provide regional transportation

infrastructure, recreation infrastructure and neighborhood

infrastructure.

43. Mr. Miller identified the cost estimates prepared

under his supervision as Petition Exhibits 10 and 11. He

further testified that the costs were based on current

construction contracts in place and underway and by using plans

and preliminary infrastructure layouts for future costs based on

pricing they have seen in the area.

44. Mr. Miller outlined the improvements presently under

construction by the Districts. These include the transportation

improvements to Nocatee Parkway and local neighborhood roads

(about a $9 million improvement) and a roadway improvement that

includes two major interchanges (about a $65 million

improvement.) There are also improvements that are recreational

in nature: a major water park and community center (about a $20

million improvement.) The total value of this construction is

approximately $94 million.

45. Mr. Miller explained that Split Pine and Tolomato have

entered into an inter-local agreement to allow Tolomato to

manage the construction projects. As the Split Pine District

Engineer, however, he is required to provide construction

updates "and all of those things necessary to report back to

[Split Pine] on the progress … outlined in the interlocal

agreement." TR-I at 34. While this arrangement has worked, it

is not, in his view, the most efficient or cost effective.

Given the state of development and construction, it is

preferable in Mr. Miller's view to have Tolomato be the

surviving district.

46. Mr. Miller testified that, in his opinion as a

professional engineer, the construction costs for the proposed

facilities for the Merged District are reasonable based on an

analysis of the proposed improvements and historical costs of

similar improvements, as well as the Districts’ own historical

costs and his understanding of future projects.

47. Mr. Miller opined that the proposed Merged District is

of sufficient size, compactness and contiguity to be developed

as a functional interrelated community. Even though the land

area of Nocatee crosses county lines, the project, as reflected

in the DRI Development Orders, is intended to operate and

develop as one large, multi-use project. Currently the

Districts function reasonably well because of a series of inter-

local agreements to ensure there would not be duplicative

construction activities or any disconnection between projects.

In Mr. Miller’s opinion, the area to be served is sufficiently

contiguous and compact to be served by one district.

48. Mr. Miller testified that, based on his training and

experience, the proposed Merged District is the best available

alternative for delivering community services and facilities to

the areas that will be served by the proposed Merged District.

He stated that having one surviving district provide the

services to the land will reduce duplication and potential

inconsistency or disconnect in the construction and ultimate

maintenance of infrastructure. While two districts are

possible, the best alternative, in his view, is to merge the

Districts and have Tolomato be the surviving district.

49. Mr. Miller testified that, based on his experience and

information provided by the City of Jacksonville and St. Johns

County, the services and facilities provided by the proposed

Merged District are not incompatible with the capacities and

uses of existing local and regional community facilities and

services. The Districts are already providing needed and

required public infrastructure which are fully consistent with

the existing capacity and facilities in the area. The merger

will not change what is being provided, and therefore cannot be

inconsistent with existing facilities.

50. Finally, Mr. Miller testified that, based on his

experience, the area being included within the proposed Merged

District is amenable to being served by a separate special

district government. The area is presently being served by

special district governments separate from local general purpose

governments. Having one separate special district government

will serve the area well by streamlining the process for getting

District board approval and it will also allow the long-term

maintenance of infrastructure to be provided by a single entity

focused on the entire community rather than having a division

created by county lines.

51. The fourth witness for the Petitioners was Donald

Smith. Mr. Smith is employed by England-Thims as Vice President

of Regulatory Planning.

52. Mr. Smith was qualified as an expert in the field of

planning.

53. Mr. Smith testified that, based on his experience as a

planner, the proposed Merged District is not inconsistent with

any portion or element of the State Comprehensive Plan and in

fact, promotes it. Of the 25 subjects the State Comprehensive

Plan provides, "Subject 20 – Governmental Efficiency" advocates

the elimination of needless duplication of governmental

activities. A merger in this instance would eliminate the

inherent duplication of having two entities serve one project.

In addition, "Subject 17 – Public Facilities" has a goal to

finance new facilities in a timely, orderly and efficient

manner. In Mr. Smith’s opinion, a Merged District will provide

the needed public transportation and other infrastructure in a

more orderly and efficient manner.

54. Mr. Smith testified that, based on his experience as a

planner, the proposed Merged District is not inconsistent with

any applicable element or portion of the City of Jacksonville’s

Local Comprehensive Plan. The Surviving District will not have

authority to make zoning or development permitting decisions and

cannot act in a manner that is inconsistent with the

comprehensive plan.

55. Mr. Smith testified that, based on his experience as a

planner, the proposed Merged District is not inconsistent with

any applicable element or portion of the St. Johns County

Comprehensive Plan. Goal H.1, of the Capital Improvements

Element states that the County is to ensure the orderly and

efficient provisions of infrastructure facilities and services.

The Surviving District will continue to serve as an alternative

provider of these infrastructure systems and services to meet

the needs of the lands within its boundaries. Currently St.

Johns County and Tolomato have entered into several inter-local

agreements with respect to infrastructure. Having Tolomato

remain as the Surviving District is the easiest way to ensure

there is no interruption in the agreements.

56. The fifth witness for Petitioners was Joe MacLaren.

Mr. MacLaren is the Director of the Public Finance Department at

Fishkind and Associates, Inc. Mr. MacLaren serves as the

Financial Advisor for the Tolomato and Split Pine Community

Development Districts.

57. Based on his credentials and experience, Mr. MacLaren

was qualified as an expert in the field of economic and

financial analysis.

58. Mr. MacLaren testified that he prepared the SERC

attached to the Petition as Petition Exhibit 12. The scope of

the economic analysis included in the SERC addresses only the

merger of the Districts, and not the planning or development of

the property itself. The SERC contains the estimates,

anticipated effects, analyses, additional information,

descriptions and statements listed in the six elements that

Section 120.541(2), Florida Statutes, requires. In addition to

explaining the applicability of a SERC to the merger of a

community development districts, Mr. MacLaren offered the

following when questioned about the economic analysis presented

in the SERC:

Once the Districts are merged, there are no

direct costs to the City of Jacksonville

. . . or St. Johns County. . . . While the

Surviving District will provide certain

reports and budgets to the City and County

for their discretionary review, there are no

requirements that they incur any obligations

or expense associated with their review. In

addition, to the extent the Surviving

District utilizes the services of the Duval

County and St. Johns County Property

Appraisers or Tax Collectors under the

provisions of Chapter 197, Florida Statutes,

to collect its assessments, the Surviving

District must pay the costs associated with

those services. There will be no increase

in costs to the local general purpose

governments as a result of the merger of the

Districts.

Finally, it is important to note that under

Chapter 190, the debt of the Surviving

District cannot become the debt of the City,

the County or the State of Florida. Since

the Surviving District will be an

independent unit of government, the

Surviving District will not have any effect

on the bonding capacity of the City of

Jacksonville, St. Johns County or the State

of Florida.

(Exhibit D, WT-JL, at 3 of 5, L. 7-21.)

59. Mr. MacLaren addressed the outstanding bond issues for

each District and testified that there will be no adverse impact

on the outstanding bonds. The outstanding bonds for Tolomato

include $91,020,000 Special Assessment Bonds, Series 2006 and

$167,185,000 Special Assessment Bonds, Series 2007, for a total

of $258,205,000 in Special Assessment Bonds in the two series.

Split Pine has issued $32,885,000 in Special Assessment Bonds in

one series, Series 2007A.

60. The bonds will continue to be secured by the

assessments on the lands within each District. Tolomato, as the

Surviving District, will certify for collection the assessments

on the land within Duval County, and enforce the collection, as

necessary, in the same way it currently does for its bonds

secured by assessments on the land within St. Johns County.

Since the security for the bonds does not change, Mr. MacLaren

opined there should be no adverse impact on the bonds as the

result of the merger.

61. Mr. MacLaren further opined that Merged District is

expected to be financially viable and feasible. He expects the

Surviving District to be able to reduce total administrative

costs, streamline its operations and be an overall economic

benefit to landowners and residents of the Merged District.

62. Mr. MacLaren testified that a merger is the best

available alternative to provide the most economically

efficient, focused and professional operations and management to

continue to assure that growth within the area encompassed by

the Surviving District pays for itself. The Merged District

should be able to construct or acquire certain infrastructure

and community facilities in a more efficient way. This should

result in a lower cost per acre or per unit cost than what would

have resulted with two independent districts.

63. Furthermore, non-ad valorem or special assessments on

the properties used to pay debt will not change after the

merger. The assessments on the land within Split Pine will

continue to secure Split Pine’s debt and the assessments on the

land within Tolomato will continue to secure Tolomato’s debt.

Thus, assessments for debt service will not be affected,

according to Mr. MacLaren. Mr. MacLaren expects that operation

and maintenance assessments will be lower than they otherwise

would have been if the Districts are merged.

64. Mr. MacLaren testified that, based on his experience,

the land within the proposed Merged District is amenable to

being served by a separate special district government. A

Surviving District will be a more efficient mechanism to oversee

the installation of capital improvements. In addition, from a

financial perspective, having one Surviving District, Tolomato,

will be the least confusing to the financial markets.

65. The final witness for the Petitioners was James Perry.

Mr. Perry is employed by Governmental Management Services, LLC

as Managing Director and serves as the Districts’ manager.

66. Mr. Perry was qualified as an expert in the field of

district management.

67. Mr. Perry identified a letter dated May 22, 2009,

addressed to Jerry McDaniel, Secretary of the Florida Land and

Water Adjudicatory Commission from Mike McDaniel, Chief Division

of Comprehensive Planning. The letter was marked as Hearing

Exhibit F and admitted into the record. The letter reflects

that the Division of Comprehensive Planning has reviewed the

Petition and identified no potential inconsistency with Chapter

163, Florida Statutes.

68. Mr. Perry testified that the Districts are petitioning

to merge their boundaries in order to become a more effective

and more efficient local unit of special-purpose government. He

testified that recent changes in the law provided the Districts

the opportunity to merge.

69. Mr. Perry testified that there are several benefits

from merger for the current residents and landowners within the

existing Districts including administrative cost savings, having

to deal with only one entity, and intangible benefits that flow

from a greater sense of community that the merger would promote.

Furthermore, having Tolomato as the Surviving District will mean

that the time for transition from landowner voting to resident

voting will be uninterrupted. This will be the least disruptive

to the residents in Tolomato. While Tolomato has not determined

the precise number of residents who live there, as of April 15,

2009, the St. Johns County Supervisor of Elections confirmed

there are 551 registered voters living in Tolomato. It is safe

to assume that the actual number of residents living in Tolomato

exceeds the number of registered voters. Split Pine has no

residents.

70. Mr. Perry testified that if a new entity is

established, then it could be argued that a new ten year time

frame for landowner voting provided by statute would begin.

Split Pine landowners have already consented to the Tolomato

landowner-to-resident schedule. See Exhibit 7 to the Petition

to Merge the Split Pine Community Development District and

Tolomato Community Development District, Hearing Composite

Exhibit A. Thus, having Tolomato as the Surviving Entity would

allow the current ten year time-table to continue unimpeded.

71. Mr. Perry testified that both Districts have stated a

preference for Tolomato to remain as the surviving entity as a

result of the proposed merger. Split Pine Resolution No. 2009-

07 and Tolomato Resolution No. 2009-06 both declare that

preference.

72. Mr. Perry testified that the merger will have no

effect on the daily field operations but it will result in a

more efficient administrative function. He further testified

that the proposed merger will affect the Districts’ budgets and

the assessments supporting them by reducing the administrative

budget.

73. Mr. Perry outlined potential savings in various line

items of the Districts’ budgets that may be realized if merger

is approved. These include supervisor salaries and related

taxes, engineering fees, legal fees and district management

fees. Meeting expenses and legal advertising, as well as

printing costs would also be reduced.

74. Mr. Perry estimated savings based on the fiscal year

2008-2009 budget "in the range of $50,000." TR-I, p. 45. He

also explained that he expects these savings to increase over

time, particularly as Split Pine becomes more developed.

75. Mr. Perry testified that, based on his experience in

district management and operations, the proposed Merged District

is the best alternative available to provide the proposed

community development services and facilities. The Districts

will be able to eliminate numerous administration costs.

Furthermore, it would eliminate administrative duplication and

time. The Surviving District will provide the highest level of

services and facilities in the most cost-effective, efficient

and convenient manner to this project.

76. Mr. Perry further testified that the proposed Merged

District is of sufficient size, is sufficiently compact and

sufficiently contiguous to be developable as one functional,

interrelated community. The Districts are adjacent, so there

are no physical barriers to interfere with the delivery of

services and facilities by the Surviving District. He further

opined that the Surviving District is sufficiently compact,

contiguous and of sufficient size to allow for the successful

delivery of improvements, management and operations to the land.

77. Mr. Perry testified that, based on his experience in

district management and operations, the proposed Merged District

will not be incompatible with the uses and existing local and

regional facilities and services. The facilities and services

within the Merged District will not duplicate any available

regional services or facilities and are not intended to be

different from the services and facilities currently planned and

being provided. The proposed merger will not impact the

Surviving District’s ability to successfully manage its existing

services and facilities.

78. Finally, Mr. Perry testified that the area to be

included within the proposed Merged District will not affect the

Districts’ ability to function as separate special district

governments. Merging the Districts will streamline decision

making and be more efficient in levying assessments for

operations and maintenance. Residents of Nocatee will benefit

by having to deal with only one authority. It will also provide

a greater sense of community and identity to the area.

Public Comment

79. One member of the public, Ellen Whitmer, attended the

first and third sessions of the local public hearing, both of

which were conducted in St. Johns County. Ms. Whitmer, although

not a resident of either District, entered her appearance as a

resident of St. Johns County and stated her purpose in testimony

under oath:

[F]rom my perspective, I am trying to

protect St. Johns County. I live in St.

Johns County. I vote in St. Johns County.

I am a tax payer in St. Johns County. I

have standing in St. Johns County.

(TR-I, at 53.)

80. Ms. Whitmer opposes the merger of the Districts.

81. Long on record as opposed to the Nocatee Development

in which the two Districts are located, Ms. Whitmer initiated an

administrative proceeding in 2001 (the "2001 Administrative

Proceeding") to challenge amendments to the St. Johns County

Comprehensive Plan applicable to Nocatee. Among the amendments

were the creation of a new Future Land Use Element category

denominated "New Town Development" and a change on the Future

Land Use Map designation of 11,332 acres (the site of the

Nocatee Development of Regional Impact) from "Rural/Silvi-

culture" to "New Town." Her petition in DOAH Case No. 01-1852GM

was consolidated with a petition brought by The Sierra Club

(DOAH Case No. 01-1851GM) to defeat the same amendments. Formal

hearings in the consolidated cases led to a Recommended Order

from the Division of Administrative Hearings that the amendments

be found "in compliance" with the State's growth management

laws. The administrative hearing culminated in a Final Order

from the Department of Community Affairs that the amendments,

just as recommended by the administrative law judge in issuing

the Recommended Order, were in compliance.

82. Ms. Whitmer appealed the Final Order to the Fifth

District Court of Appeal. The Final Order was affirmed per

curiam by the court and the amendments stood, clearing the way

for the Nocatee Development. See Whitmer v. St. Johns County et

al. , 857 So. 2d 897 (Fla. 5th DCA 2003).

83. Ms. Whitmer maintains her opposition to the Nocatee

Development in general on the same basis advanced in the 2001

Administrative Proceeding. In her view it is "urban sprawl

. . . not cost feasible, not financially sound like it should

have been and . . . the current market conditions have proved me

to be correct." Furthermore, she testified, "[o]ne of the

primary things that my case was about at the Fifth District was

that Nocatee is not a new town. It doesn't matter what you call

it. It is not a new town." (TR-I, at 52.)

84. Ms. Whitmer's main point in opposition to the merger,

however, stems from the change in the law, see , Exhibit B,

Chapter 2009-142, Laws of Florida amending Section 190.046(3),

Florida Statute, that allowed, for the first time, the merger of

community development districts as that change relates, in her

view, to Section 190.047, Florida Statutes.

85. Section 190.047, Florida Statutes, governs

incorporations and annexations of community development

districts. The first sentence of the section mandates a

referendum, when certain conditions are met, on whether a

community development district wholly located in an

unincorporated area of a county should incorporate. The second

sentence of the statutory section insofar as it might pertain to

the proposed Merged District is of concern to Ms. Whitmer. It

reads: "However, any district contiguous to the boundary of a

municipality may be annexed to such municipality pursuant to the

provisions of Chapter 171 [the chapter of the Florida Statutes

that governs local government boundaries.]" § 190.047(1), Fla.

Stat.

86. Ms. Whitmer pointed out in testimony that the local

government in which Split Pine is located is a consolidation of

the governments of both Duval County and the City of

Jacksonville. Split Pine, therefore, is located in a

municipality, the City of Jacksonville. Tolomato, wholly

located in St. Johns County, is located contiguous to the

municipality of Jacksonville and as such may be annexed into the

City of Jacksonville, in her view, under the second section of

Section 190.047(1), Florida Statutes. Ms. Whitmer takes her

argument further. She sees the merger as a step in a process

that began with approval of the Nocatee DRI, proceeded with

amendments to the St. Johns County Comprehensive Plans and

creation of the Districts, is now undertaking the merger of the

Districts, and could lead to annexation of the portion of the

Merged District located in St. Johns County into the City of

Jacksonville. Ultimately, she fears that this process could

lead to the annexation into the City of Jacksonville of parts of

St. Johns County outside the Merged District.

Petitioners' Response to Public Comment

87. Petitioners' answer Ms. Whitmer's fears by pointing

out that the merger of the Districts does nothing to increase or

diminish the City of Jacksonville's authority, whatever that

authority may be, to annex what is now Tolomato. In its pre-

merger status, Tolomato is a district "contiguous to the

boundary of a municipality," the description Section 190.047,

Florida Statutes, sets out as a qualification for annexation by

a municipality. The merger of the districts, therefore, will

have no effect on the ability of the City of Jacksonville to

annex the land currently in St. Johns County that is Tolomato.

Whatever it is, that ability remains neither enhanced nor

diminished in the wake of the 2009 amendment that allows

districts to merge.

88. Petitioners also state in their proposed report that

there is no evidence that an attempt by the City of Jacksonville

to annex the area that is within the current boundaries of

Tolomato "would in any case, meet the provisions of Chapter 171,

Florida Statutes . . . . [T]hat issue is well beyond the scope

of these proceedings." Petitioners' Proposed Report of Findings

and Conclusions , at 36. In summary, Petitioners posit that the

issues in this proceeding concern a merger of community

development districts and in no way encompass the issues with

regard to annexation raised by Ms. Whitmer.

89. Along these lines, it is worth examining the context

in which the recent legislative amendments including the

authority for merging community development districts have taken

place. Chapter 190, Florida Statutes, (the Act), governs

community development districts in Florida. It bears the short

title: the "Uniform Community Development District Act of

1980." See § 190.001, Fla. Stat.

90. Prior to July 1, 2007, the definitions section of the

Act defined "community development district" with the clause

"the boundaries of which are contained wholly within a single

county." § 190.003(6), Fla. Stat. (2006). In 2007, however,

the clause was stricken from the definition of "community

development district." See Chapter 2007-160, Section 1, Laws of

Florida, effective July 1, 2007. By the same enactment, Chapter

2007-160, Laws of Florida, the Legislature amended Section

190.005, Florida Statutes, which governs "establishment of a

district." The amendment added a new sub-paragraph 3., to

paragraph (1)(b) so that the section, in pertinent part, now

reads:

Prior to filing the petition, the petitioner

shall

* * *

3. If land to be included within a district

is located partially within the

unincorporated area of one or more counties

and partially within a municipality or

within two or more municipalities , pay a

$15,000 filing fee to each entity.

Districts established across county

boundaries shall be required to maintain

records, hold meetings and hearings, and

publish notices only in the county where the

majority of the acreage within the district

lies.

the merger proposed by Petitioners, land within a district

located partially within one or more counties and partially

within a municipality, therefore, has been a situation expressly

contemplated by the Act since July 1, 2007. The Legislature

must be presumed to have known of the potential for a merger to

occur of districts contiguous to each other but located in

different counties and partially within a municipality when it

amended Section 190.046(3), Florida Statues, in the 2009 session

to allow districts to merge. Furthermore, the Legislature must

be presumed to know of whatever the potential there is for

municipal annexation as the result of the proposed merger.

The Second Session of the Local Public Hearing

91. The second session of the local public hearing on the

Petition was noticed and held on July 7, 2009, at 3:00 p.m., at

the Baymeadows Residence Inn Marriott, 8365 Dix Ellis Trail,

Jacksonville, Florida 32256. Pursuant to Section 190.005,

Florida Statutes, notice of the public hearing was advertised on

June 9, June 16, June 23, and June 30, 2009, in the Florida

Times Union, a newspaper of general paid circulation in the City

of Jacksonville, and of general interest and readership in the

community, not one of limited subject matter, pursuant to

Chapter 50, Florida Statutes. The published notice gave the

time and place for the hearings, a description of the area to be

included within the merged Districts, including a map showing

the lands of the proposed merged Districts 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. See Exhibit GB-3

of the Pre-filed Testimony in Hearing Composite Exhibit D.

92. The second session of the hearing commenced as

scheduled at 3:00 p.m. In addition to Petitioners’ counsel, all

of the Petitioners’ witnesses who appeared in St. Johns County

also appeared in Duval County.

93. No members of the public entered appearances or

testified during the session in Duval County.

The Third Session

94. The third session of the public hearing was conducted

on July 27, 2009 at 11:00 a.m. at the Ponte Vedra Beach Library,

and at 2:00 pm. Residence Inn in Jacksonville.

95. In addition to counsel for Petitioners, Mr. Gregory

Barbour and Mr. James Perry, witnesses for the Petitioner in the

earlier sessions, attended this session.

96. The Notice of Receipt of Petition, published in the

Florida Administrative Weekly on July 17, 2009, was admitted

into evidence as Hearing Exhibit G.

97. Ms. Whitmer attended this session and provided

additional comment. The comment offered by Ms. Whitmer at the

third session supplemented her comment at the first session with

regard to substantially similar issues by further explaining her

position of opposition to the merger.

The Fourth Session

98. The final session of the local public hearing was held

on July 7, 2009, at 2:00 p.m., at the Baymeadows Residence Inn

Marriott, 8365 Dix Ellis Trail, Jacksonville, Florida 32256.

99. In addition to counsel for the Petitioners,

Mr. Barbour and Mr. Perry also attended this session but no

members of the public were present.

100. At the conclusion of the public hearing, the record

was left open until August 6, 2009 to allow for receipt of

additional written comments from members of the public. No

additional comments were filed by that date.

101. A final list of the Exhibits admitted into evidence

in support of the Petition is as follows: Hearing Exhibit A:

Petition to Merge Split Pine Community Development District and

Tolomato Community Development District; Hearing Exhibit B:

Certified copy of HB 821 (2009 legislature); Hearing Exhibit C:

Bond Counsel Opinion; Hearing Exhibit D: Prefiled Written

Testimony of Witnesses: Richard Ray, Gregory Barbour, Douglas

Miller, Donald Smith, Joe MacLaren, and James Perry; (and

exhibits attached thereto); Hearing Exhibit E: General Location

Map of the Split Pine and Tolomato Community Development

Districts; Hearing Exhibit F: DCA Response Letter; and Hearing

Exhibit G: Notice of Receipt of Petition.

102. The sole matter at issue in this proceeding is

whether or not to grant the petition to merge the two existing

community development districts that govern the Nocatee project.

Ms. Whitmer’s comments regarding whether the Nocatee project is

good for St. Johns County is beyond the scope of this

proceeding. Further, the only matter related to comprehensive

planning that is relevant is whether the merger of the two

districts in any way is inconsistent with the state or local

comprehensive plans. No testimony was presented demonstrating

any inconsistency with either the state comprehensive plan, or

the City of Jacksonville or St. Johns County comprehensive

plans. Moreover, the Department of Community Affairs has

indicated that the proposed merger is not inconsistent with

Chapter 163, Florida Statutes. See , Hearing Exhibit F, Letter

dated May 22, 2009 to the Secretary of the Commission from the

Division of Comprehensive Planning.

APPLICABLE LAW

A. General

103. Section 190.046(3), Florida Statutes, provides

authority for one community development district to merge with

other community development districts upon the filing of a

petition pursuant to Section 190.005. It provides in pertinent

part:

The district may merge with other community

development districts upon filing a petition

for establishment of a community development

district pursuant to s. 190.005 . . . . The

government formed by a merger involving a

community development district pursuant to

this section shall assume all indebtedness

of, and receive title to, all property owned

by the preexisting special districts, and

the rights of creditors and liens upon

property shall not be impaired by such

merger. Any claim existing or action or

proceeding pending by or against any

district that is a party to the merger may

be continued as if the merger had not

occurred, or the surviving district may be

substituted in the proceeding for the

district that ceased to exist. Prior to

filing the petition, the districts desiring

to merge shall enter into a merger agreement

and shall provide for the proper allocation

of the indebtedness so assumed and the

manner in which such debt shall be retired.

The approval of the merger agreement and the

petition by the board of supervisors of the

district shall constitute consent of the

landowners within the district.

B. Petition Requirements

104. Section 190.046(3) requires that a petition to merge

contain the elements for establishing a community development

district found in Section 190.005(1)(a) Florida Statutes. Those

eight elements are:

1. A metes and bounds description of the

external boundaries of the district. Any

real property within the external boundaries

of the district which is to be excluded from

the district shall be specifically

described, and the last known address of all

owners of such real property shall be

listed. The petition shall also address the

impact of the proposed district on any real

property within the external boundaries of

the district which is to be excluded from

the district.

2. The written consent to the establishment

of the district by all landowners whose real

property is to be included in the district

of documentation demonstrating that the

petitioner has control by deed, trust

agreement, contract, or option of 100

percent of the real property to be included

in the district is owned by a governmental

entity and subject to a ground lease as

described in s. 190.003(14), the written

consent by such governmental entity.

3. A designation of five persons to be the

initial members of the board of supervisors,

who shall serve in that office until

replaced by elected members as provided in

s. 190.006.

4. The proposed name of the district.

5. A map of the proposed district showing

current major trunk water mains and sewer

interceptors and outfalls if in existence.

6. Based upon available data, the proposed

timetable for construction of the district

services and the estimated costs of

constructing the proposed services. These

estimates shall be submitted in good faith

but shall not be binding and may be subject

to change.

7. A designation of the future general

distribution, location, and extent of public

and private uses of land proposed for the

area within the district by the future land

use plan element of the effective local

government comprehensive plan of which all

mandatory elements have been adopted by the

applicable general-purpose government in

compliance with the Local Government

Comprehensive Planning and Land Development

Regulation Act.

8. A statement of estimated regulatory

costs in accordance with the requirements of

s. 120.541.

(Chapter 2009-142, Laws of Florida, at 5-6 of 19.)

105. The Petition contains exhibits that clearly reflect

the requirements of elements 1, 2, 6, 7, and 8 quoted in the

paragraph immediately above.

106. As for the designation of initial members of the

board of supervisors required by element 3, and provision of the

proposed name of Merged District required by element 4, the

petition set forth alternatives with the following introduction:

* * *

7. On October 2, 2008, Split Pine and

Tolomato each adopted resolutions . . .

approving a merger agreement ("Merger

Agreement") in the form attached to the

resolutions and authorizing the process

necessary to accomplish the merger under

Chapter 190 of the Florida Statutes.

* * *

Because it is unclear whether the Merger

would result in the abolishment of Split

Pine and Tolomato and the establishment of a

"new district," resulting in a new timetable

for the start of elector-based elections

under Section 190.006 of the Florida

Statutes, or whether the Merger of Split

Pine into Tolomato would result in the

abolishment of Split Pine and continuation

of Tolomato as a surviving district with the

preservation of Tolomato's existing

timetable for the start of elector-based

elections, the Merger Agreement addresses

both scenarios. The Petitioners are

agreeable to either scenario.

(Petition, at 2-3.)

107. With regard to element 3., the Petition states:

11. The Merger Agreement provides that, in

the event Tolomato continues as the

surviving district, Tolomato's Board of

Supervisors will continue to serve on the

same terms, in the same positions, and with

the same election timetable provided for

under Section 190.006 of the Florid

Statutes, and that, in the event that the

Merger results in the establishment of a new

district, the new entity's Board of

Supervisors will be as set forth in the

Merger Agreement with a new election

timetable as provided for under Section

190.006 of the Florida Statutes.

(Petition, at 4.) The testimony from both Mr. Ray and

Mr. Barbour of record establishes that the five board members of

Tolomato will be the initial members of the board of supervisors

of the Merged District. The testimony is consistent with the

resolution passed by the Districts that expressed the preference

that Tolomato be the surviving entity rather than a new

community development district be created by the merger. See

Resolution 2009-06 of the Tolomato Board, Exhibit RR-2, page 2

of 2, attached to Exhibit D and Resolution 2009-07, Exhibit GB-

2, page 2 of 2, attached to Exhibit D.

108. As for the proposed name of the district required by

element 4, the petition states the following:

* * *

12. In the event a new district is

established, Petitioners request that the

new district be named "New Tolomato

Community Development District."

(Petition, at 4.) Subsequent to the filing of the Petition,

however, Tolomato Resolution 2009-06 and Split Pine Resolution

2009-07 were adopted. Both resolutions expressed the preference

that Tolomato be the surviving district after the merger rather

than a new district be created. See Exhibit RR-2, page 2 of 2,

attached to Mr. Ray's pre-filed testimony in Exhibit D and

Exhibit GB-2, page 2 of 2, attached to Mr. Barbour's pre-filed

testimony in Exhibit D. Provided that the Commission approves

of the preference, the Petition and the evidence of record are

clear that the name of the Merged District will be the current

name of the Surviving District: Tolomato Community Development

District.

109. The exhibit designed to meet element 5 is discussed

in paragraph 12, above.

C. Applicable Procedures

110. Section 190.046(3), provides that a petition seeking

a merger of districts shall be filed with the Commission. The

petition "shall include the elements set forth in s. 190.005(1)

and . . . shall be evaluated using the criteria set forth in s.

190.005(1)(e)." On March 23, 2009, Petitioner filed one

original and twelve copies of the Petition with Petition

Exhibits with the Commission.

111. Section 190.005(1)(b)1, Florida Statutes, requires

that petitioner provide a copy of the petition and the requisite

$15,000 filing fee to the county and to each municipality whose

proposed boundary is within or contiguous to the district prior

to filing the petition with the Commission. Petitioners

complied with these requirements.

112. Section 190.005(1)(c), Florida Statutes, provides

that the County containing all or a portion of the lands within

the proposed merged districts has the option to hold a public

hearing within 45 days of the filing of a petition. Neither the

City of Jacksonville nor St. Johns County opted to hold a public

hearing on the Petition.

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

local public hearing to be conducted by a hearing officer in

conformance with the applicable requirements and procedures of

the Administrative Procedures Act. Such public hearing "shall

include oral and written comments on the petition pertinent to

the factors specified in paragraph (e)" of Section 190.005(1),

Florida Statutes.

114. A local public hearing in four sessions was held, two

sessions in St. Johns County and two sessions in the City of

Jacksonville on July 7 and July 27, 2009.

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

petitioner to publish notice of the local public hearing once a

week for four successive weeks immediately prior to the hearing

in a newspaper of general paid circulation in the county and of

general interest and readership in the community. Petitioners

published notice of the local public hearing in the Florida

Times Union and the St. Augustine Record on June 9, June 16,

June 23 and June 30, 2009.

116. Florida Administrative Code Rule 42-1.010 requires

the Secretary of the Commission to publish a Notice of Receipt

of Petition in the Florida Administrative Weekly within 60 days

of receipt. The Notice of Receipt of Petition was published in

the Florida Administrative Weekly outside the time required by

the rule. Publication occurred on July 17, 2009.

D. Factors to be Considered for Granting or Denying Petition

117. The Commission must proceed in accordance with

Section 190.005(1)(e), Florida Statutes, upon the receipt of the

full record of the local public hearing. It should be noted,

however, that this is not technically the consideration of

whether or not to establish a new district where none existed

before. Instead, it is consideration of whether to allow two

existing districts to become one, and whether that result would

meet the statutory criteria. If the merger petition was denied

for any reason, then the two districts would continue to exist.

118. Pursuant to Section 190.005(1)(e)1.-6., Florida

Statutes, the Commission must consider the entire record of the

local hearing, the transcript of the hearing, any resolutions

adopted by local general-purpose governments, and the following

factors, to make a determination to grant or deny a petition for

the merger of the boundaries of districts:

1. Whether all statements contained within

the petition have been found to be true and

correct;

2. Whether the establishment of the Merged

District is inconsistent with any applicable

element or portion of the state

comprehensive plan or of the effective local

government comprehensive plans;

3. Whether the area of land within the

Merged District is of sufficient size, is

still sufficiently compact, and is still

sufficiently contiguous to continue to be

developable as one functional interrelated

community;

4. Whether the Merged District is the best

alternative available for delivering

community development services and

facilities to the area that will be served

by the Merged District;

5. Whether the community development

services and facilities of the Merged

District will be incompatible with the

capacity and uses of existing local and

regional community development services and

facilities; and

6. Whether the area that will be served by

the Merged District is amenable to separate

special-district government.

E. Information in Record; Applicable Law

i. Procedural Requirements

119. The evidence of record demonstrates that Petitioners

have satisfied the procedural requirements for the merger of the

Districts by filing the Petition in the proper form with the

required attachments, by tendering the requisite filing fee to

the local governments, by arranging for public hearings to be

conducted by an administrative law judge, by publishing

statutory notices of the local public hearing and by occurrence

of the scheduled public hearings.

ii. Six Statutory Factors

120. The evidence demonstrates that the statements in the

Petition and its attachments, as revised, are true and correct.

Consents for all lands currently included within the Districts

were provided and that the consents were true and correct.

121. The evidence is that establishment of the Merged

District is not inconsistent with any applicable element or

portion of the State and local government comprehensive plan.

122. The evidence is that the Merged District is of

sufficient size, is sufficiently compact, and is sufficiently

contiguous to continue to be developable as “one functional

interrelated community.”

123. The evidence is the Merged District is the best

alternative available for delivering community development

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

Merged District.

124. The evidence is that the community development

services and facilities of the Merged District will not be

incompatible with the capacity and uses of existing local and

regional community development services and facilities.

125. The evidence is that the area that will be served by

the Merged District is amenable to separate special-district

government.

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 paragraph. Based on the record evidence, the Petitioners

appear to meet the statutory requirements for the Tolomato

Community Development District and the Split Pine Community

Development District to merge. The record supports having

Tolomato continue to exist as the “Surviving District,” with the

landowner election schedule to continue as it presently exists

and the existing Tolomato board members to remain in office.

DONE AND ENTERED this 9th day of October, 2009, in

Tallahassee, Leon County, Florida.

S

DAVID M. MALONEY

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 9th day of October, 2009.

COPIES FURNISHED:

Cheryl G. Stuart, Esquire

Hopping Green & Sams, P.A.

119 South Monroe Street, Suite 300

Tallahassee, Florida 32301

Ellen A. Whitmer

1178 Nature's Hammock Road South

Fruit Cove

St. Johns, Florida 32259-2879

Barbara Leighty, Clerk

Transportation and Economic

Development Policy Unit

The Capitol, Room 1801

Tallahassee, Florida 32399-0001

Shaw P. Stiller, General Counsel

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399-2100

Jerry McDaniel, Director

Office of the Governor

Florida Land and Water

Adjudicatory Commission

The Capitol, Room 1802

Tallahassee, Florida 32399-1001

Rob Wheeler, General Counsel

Office of the Governor

The Capitol, Room 209

Tallahassee, Florida 32399-0001