10-002436 In Re: Petition To Merge The Westchase Community Development District And The Westchase East Community Development District vs. * Status: Closed Recommended Order on Wednesday, February 23, 2011.

Summary: The petition to merge the CDDs is found to be complete and to meet the criteria for approval.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: PETITION TO MERGE THE )

WESTCHASE COMMUNITY DEVELOPMENT )

DISTRICT AND THE WESTCHASE EAST ) Case No. 10 - 2436

COMMUNITY DEVELOPMENT DISTRICT )

)

REPORT TO THE FLORIDA LAND AND WATER ADJUDICATORY COMMISSION

Pursuant to S ection 190.005 (1)(d) , Florida Statutes , 1/ a

local public hearing was conducted on September 30, 2010 , before

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

Administrative Hearings, in Tampa, Florida.

The hearing was conducted for the purpose of receiving

testimony and exhibits and for taking any public comment s on the

petition to merge the Westchase Community Development District

("Westchase" ) and the Westchase East Commun ity Development

District ("Westchase East") into a single district to be known as

the Westchase Community Development District. This Report of the

public hearing is made for the consideration of the Florida Land

and Water Adjudicatory Commission ("Commiss ion") in its

determination whether to adopt a rule to merge the d istricts.

APPEARANCES

F or Petitioners Westchase and Westchase East:

Erin Rae McCormick, Esquire

Fowler White Boggs , P.A.

501 E. Kennedy Blvd., Suite 1700

Tampa, Florida 33602

STATEMENT OF THE ISSUE S

The issue s to be determined are whether the merger of the

two districts meets the criteria set forth in c hapter 190 ,

Florida Statutes , and whether the hearing process has been

conducted in accordance with the requirements of c hapter 190 and

Florid a Administrative Code C hapter 42 - 1 .

PRELIMINARY STATEMENT

On April 5, 2010, Petitioner s filed a petition to merge the

districts. Petitioner s provided a copy of the petition and its

attachments, along with the requisite filing fee , to

Hillsborough County.

The Commission referred the p etition to the Division of

Administrative Hearings ("DOAH") to conduct a local public

hearing pursuant to s ection 190.005(1)(d). At the local public

hearing, Petitioners presented the testimony of five witnesses:

Mark Ragusa , Gregory Chesney, Tonja Stewart, Karen Ellis , and

Andrew Mendenhall. Petitioner also introduced 12 exhibits,

designated A through L. No member of the general public attended

the hearing .

After the close of the public hearing, the record was left

open f or 10 days for the submi ttal of written comments from the

public in support of or in opposition to the p etition, as

allowed by Florida Administrative Code Rule 42 - 1.012. No

written statements were submitted to DOAH.

The one - volume T ranscript of the local public hearing was

filed with DOAH o n January 5 , 2011 . Petitioners timely

submitted a proposed report, which was considered in the

preparation of this Report.

SUMMARY OF THE HEARING AND RECORD

1. Pursuant to section 190.046(3), a petition to merge

comm unity development districts is to be evaluated using the

criteria set forth in section 190.005(1)(e). The discussion

that follows addresses each criterion in sequence.

Whether all statements contained within the p etition

have been found to be true and cor rect.

2. The e vidence presented at the public hearing

establishes that the statements in the p etition are true and

correct.

3. The Districts are petitioning to merge their boundaries

in order to become a more effective and efficient local unit of

spec ial - purpose government.

4. In many respects, t he Westchase and Westchase East

districts have been ope rat ing jointly, using interlocal

agreements and employing the same auditors, manage rs , legal

counsel, and engineer s .

5. The merger of the districts i s a logical step that

would improve efficiency and better serve the residents and

landowners within the districts.

6 . The merger would not change the type of capital

facilities currently provided by the districts. Westchase is a

built - out community, and the infrastructure for both districts

is complete. The merged district would continue to provide

transportation infrastructure, recreation infrastructure,

stormwater facilities , and maintenance infrastructure.

7 . The boards of supervisors of Westch ase and Westchase

East each passed resolutions authorizing the merger of the

districts. Both districts have stated a preference for

Westchase to remain as the surviving entity after the merger.

8. T he five persons designated in the p etition to serve a s

the Board of Supervisors of the m erged d istrict are Mark Ragusa,

Robert Argus, William Kemerer, William Casale, and Joseph

Lechman. They are the current board members of Westchase.

9. A qualified expert testified that t he legal

description s for Westch ase and Westchase East , as amended , are

accurate metes and bounds descriptions of the lands included in

the merged district.

10 . The Board of County Commissioners of Hillsborough

County adopted a resolution to express support for the petition

to merge th e Westchase and Westchase East districts.

Whether the merger of the boundaries of the District is

inconsistent with any applicable element or portion of the

s tate comprehensive plan or of the effective local government

comprehensive plan.

11. The Hi ll s borough County Comprehensive Plan encourages

the elimination of needless duplication of governmental

activities and encourages cooperation between and among

governmental units. It also is a goal of the Comprehensive Plan

to provide infrastructure facilit ies in a timely, orderly and

efficient manner. The merger of the two districts w ould

eliminate needless duplication and would provide community

facilities and services more efficiently.

12 . The goals of the Capital Improvements Element of the

Hillsborou gh County Comprehensive Plan are to ensure the

provision of infrastructure facilities and services, such as

roads, utilities, recreation , and drainage. The proposed merged

district would continue to serve as an alternate provider of

these infrastructure f acilities and services.

13. The petition includes a letter from the Office of

Comprehensive Planning of the Department of Community Affairs ,

which reviewed the p etition and identified no potential

inconsistency with the Local Government Comprehensive Pl anning

and Land D evelopment Regulation Act, c hapter 163, Florida

Statutes.

14. After the merger of the districts, all land uses and

services planned within the new Westchase district would be

consistent with all applicable elements or portions of the Sta te

Comprehensive Plan and the Hillsborough County Comprehensive

Plan.

Whether the area of land within the proposed D istrict is of

sufficient size, is sufficiently compact, and is sufficiently

contiguous to be developable as one functional interrelated

comm unity.

15. Westchase currently contains approximately 741 acres of

land and Westchase East currently contains approximately 972

acres of land . T he proposed m erged d istrict w ould consist of

approximately 1,713 acres.

16 . T he two districts have been able to function reasonably

well because they have a combined budget and the boards of

supervisors make many joint decisions regarding the operation and

maintenance of the communityÓs facilities and infrastructure.

1 7 . The proposed merged district will serv e the single,

large, mixed - use Westchase Project and provid e a greater sense of

community and identity for the residents.

18. The area of land within the proposed merged district is

of sufficient size, is sufficiently compact, and is sufficiently

contiguous to be developable as one functional interrelated

community.

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 District.

19. Although the d istricts have operated reasonably well,

the best alternative for efficiency and cost - eff ectiveness is to

merge the districts . T here is duplication of costs and effort

in the management of the districts th at would be eliminated by

the merger.

20 . Fourtee n administrative costs have been identified

that would be reduced as a result of merging the districts, with

a projected annual savings of $62,000.

21. A community development district allows the community

to have greater control over the construction of community

infrastructure, compared to a county government that must

provide infrastructure for a much larger area. For the same

reason, a community development district is th e best alternative

for maintaining infrastructure . Hillsborough County does not

have the resources and ability to provide facilities and

services at the same level and to the same standards as the

m erged d istrict.

22. T he proposed merged d istrict is the best alternative

available for delivering community development services and

f acilities to the area that will be served by the d istrict.

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 an d facilities.

23. The two existing d istricts are already providing

community development services and facilities . Th ese services

and facilities are fully consistent with the existing capacity

and facilities operated by Hillsborough County . The propose d

merger will not change the existing services and facilities.

24. Th e community development services and facilities of

the proposed merged d istrict will be compatible with the

capacity and uses of existing local and regional community

development servic es and facilities.

Whether the area that will be served by the proposed District is

amenable to separate special - district government.

25. The two area s that will be served by the proposed

merged d istrict have already functioned as community development

districts. Therefore, these areas have shown themselves to be

amenable to separate special - district government.

Statement of Estimated Regulatory Costs .

26. A ttached to the p etition as Exhibit 8 is a Statement

of Estimated Regulatory Costs . The S tateme nt concludes that the

economic benefits of merging the districts exceed the economic

costs to all affected parties. It states that t here w ould be no

adverse impact on the outstanding bonds as a result of the

m erger. The bonds will continue to be secured by the

assessments on the lands within each d istrict. Th e m erged

d istrict would be financially sound and would manage the

district more efficiently for the benefit of the residents and

landowners of the d istrict. M erging the districts is the best

alterna tive available to provide professional operations and

management .

27. Beyond administrative costs related to rule adoption,

the State and its citizens will not incur costs from merging the

d istrict s . The proposed merger will create cost savings for

perso ns living within the merged district.

O ther requirements imposed by statute or rule.

28. Section 190.005(1)(d) requires the Petitioner to

publish notice of the local public hearing in a newspaper of

general circulation in Hillsborough County for four con secutive

weeks prior to the hearing. The notice was published in the

Tampa Tribune , a newspaper of general paid circulation in

Hillsborough County , for four consecutive weeks, on September 2,

September 9, September 16, and September 23 , 20 10 .

C ONCLUSIONS OF LAW

29 . This proceeding is governed by c hapter 190, Florida

Statutes, which establishes an exclusive and uniform method for

the establishment of a community development district with a

size of 1,000 acres or more.

3 0 . Section 190.046(3), Florida Sta tutes, provides for the

merg er of community development district s. It states that t he

approval of a merger agreement and the petition by the board of

supervisors of the district to merge with another district shall

constitute consent of the landowners wi thin the district. The

Westchase and Westchase East districts entered into a merger

agreement that was included with the petition.

3 1 . The p etition contained all the information required by

section 190.005(1) and Hillsborough County was paid the requi red

filing fee.

3 2 . The petition contained all of the information required

by section 190. 005(1)(a) .

3 3 . The petition contains a Statement of Estimated

Regulatory Costs in accordance with the requirements of s ection

120.541.

3 4 . Section 190.046(3) requi res that a petition to merge

districts must address the criteria in s ection 190.005(1)( e ).

As discussed above, t he Petitioner favorably addressed all the

fa ctors in s ection 190.005(1)(e).

35. The local public hearing was properly noticed as

required by s ection 190.005(1)(d) . The local public hearing was

held and affected units of general - purpose local government and

the general public were afforded an opportunity to comment on

the proposed merger as required by section 190.005(1)(d) and

Florida Administr ative Code Rule 42 - 1.012. No member of the

public offered an oral or written statement at the public

hearing and no written statements were submitted after the

hearing.

CONCLUSION

Based on the record evidence, the petition meet s all

statutory requirements , and there appears no reason not to grant

the p etition to merge the districts and thereby create a new

Westchase Community Development District by rule of the

Commission .

REPORT SUBMITTED this 23rd day of February , 2011 , in

Tallahassee, Leon County, Flori da.

S

BRAM D. E. CANTER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl. us

Filed with the Clerk of the

Division of Administrative Hearings

this 23rd day of February , 2011 .

ENDNOTE

1/ All statutory references are to Florida Statutes (20 10 ).

COPIES FURNISHED :

Barbara Leighty, Clerk

Growth Management and Strategic

Plannin g

The Capitol, Room 1802

Tallahassee, Florida 32399 - 0001

Michael J. Barry, Esquire

Department of Management Services

4050 Esplanade Way, Suite 160D

Tallahassee, Florida 32399 - 0950

Erin Rae McCormick, Esquire

Fowler White Boggs, P.A.

501 East Kennedy Bo ulevard, Suite 170

Tampa, Florida 33602

Jerry McDaniel Director

Office of the Governor

The Capitol, Room 1802

Tallahassee, Florida 32399 - 1001

Deborah Kearney, General Counsel

Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 325

Tallaha ssee, Florida 32399 - 2160

Rick Figlio, General Counsel

Office of the Governor

The Capitol, Room 209

Tallahassee, Florida 32399 - 1001