21-002283 In Re: Petition To Amend The Boundary Of The Tomoka Community Development District vs. * Status: Closed Recommended Order on Wednesday, October 27, 2021.

Summary: The Petition to amend the boundary of the Tomoka CDD satisfies the statutory requirements established in sections 190.005 and 190.046.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

I N R E : P ETITION T O A MEND T HE T OMOKA Case No. 2 1 - 2283

C OMMUNITY D EVELOPMENT D ISTRICT

___________________________ ________ ____/

A DMINISTRATIVE L AW J UDGE ' S R EPORT T O T HE

F LORIDA L AND A ND W ATER A DJUDICA TORY C OMMISSION

On September 13 , 2021, a local public hearing was conducted pursuant to

sections 190.046(1)(f) and 190.005(1)(d), Florida Statutes, before E. Gary

Early, an Administrative Law Judge of the Division of Administrative

Hearings (DOAH), by Zoo m c onference and at the Hampton Inn & Suites,

150 Flagler Plaza Drive, Palm Coast, Florida 32137 .

A PPEARANCES

For Petitioner : Katie S. Buchanan , Esquire

Hopping, Green and Sams, P.A.

Suite 300

119 South Monroe Street

Tallahassee, Florida 323 01

S TATEMEN T OF T HE I SSUE S

The issue s before the Florida Land and Water Adjudicatory Commission

(Commission) in this proceeding are whether to grant the Petition to Amend

the Tomoka Co mmunity Development District (Petition) to amend the

boundary of the Tomoka Communi ty Development District (District) by

adding approximately 80 acres to the land comprising the current area

encompassed by the District , and to correct a scrivenerÔs error in the legal

description of a parcel that is intended to remain excluded from the Di strictÔs

boundaries .

This report is prepared and submitted to the Commission pursuant to

s ections 190.046 and 190.005 for consideration in its determination of

whether to adopt a rule amending the boundary of the District as requested

by the District .

P RELIMINARY S TATEMENT

On June 23 , 2021 , the District filed the Petition with the Commission. T he

District previously provided the Petition and its e xhibits, along with the

requisite filing fee, to Flagler County, Florida .

The Petition seeks to add two par cels , each containing 40 acres, more or

less, and totaling 80 acres (the Expansion Parcel s ) , to the 1, 968 acres

comp r ising the E xisting District, which will result in a District boundary

encompassing approximately 2,048 acres (the Amended District) . The

Pe tition further seeks to correct an erroneous legal description for the

Plantation Bay School Site (School Site), which is currently excluded from the

DistrictÔs boundaries. The correction of the scrivenerÔs error is intended to

ensure that the School Site remains excluded from the DistrictÔs boundaries.

The District is located entirely within Flagler County, Florida . Section

190.005(1)(c) provides that the jurisdiction containing all or a portion of the

lands within a proposed amended district has the opti on to hold a public

hearing. On July 19, 2021, the County advised the Commission of its support

of the Petition without holding a public hearing.

On July 22, 2021 , the Commission certified that the Petition contained all

required elements , and referred th e Petition to DOAH for the purpose of

conducting the local public hearing required by s ection 190.005(1)(d). On

August 26, 2021 , a Notice of Receipt of Petition was published in the Florida

Administrative Register.

On August 4, 2021 , the Department of Econ omic Opportunity (DEO)

certified to the Commission that the Petition contained no potential

inconsistency with chapter 163, Florida Statutes , or the Flagler County

Comprehensive Plan .

The District published notice of the local public hearing in accordance

with section 190.005(1)(d). In accordance with the notice, t he local public

hearing was held on Monday, September 13, 2021 , at 9 :00 a .m. , at the

Hampton Inn & Suites, 150 Flagler Plaza Drive, Palm Coast, Florida 32137 ,

with the Administrative Law Judge an d witnesses appearing by Zoom

conference . At the local public hearing, the District presented the live and

written testimony of :

1. Vivian Carvalho, District Manager, employed by PFM Group

Consulting, LLC , who was accepted as an expert in special district

management and financ ial analysis ;

2. Kelly White , Director of Finance and Chair person of the DistrictÔs

Board of Supervisors ;

3 . Jerry K. Finley , P.E., employed by Finley Engineering Solutions,

Inc. , and District Engineer for the District , who was acce pted as an expert in

land development and public infrastructure construction ; and

4. Miguel Collazo, III , an attorney and shareholder at Hopping, Green

& Sams, P.A., who was accepted as an expert in planning .

The District offered Composite Exhibit A , c onsisting of the prefiled

testimony of Ms. Carvalho, and including as attachments thereto Tabs VC - 1

through VC - 9 ; Exhibit B , consisting of the prefiled testimony of M s. White ;

Exhibit C, consisting of the prefiled testimony of Mr. Finley ; Composite

Exhibi t D, consisting of the prefiled testimony of M r. Collazzo , and including

as attachments thereto Tabs MC - 1 and MC - 2; and Exhibit E, the proof of

publication for the notice of the public hearing. A ll exhibits were received in

evidence .

No members of the pub lic appeared , either by Zoom or at the Palm Coast

location.

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

DOAH on September 23 , 2021 . The District filed a Proposed Report of

Findings and Conclusions on October 22 , 2021 , which has b een considered in

the preparation of this Report.

References to statutes are to Florida Statutes (20 2 0 ), unless otherwise

noted.

O VERVIEW

The District is seeking the adoption of an amendment to Florida

Administrative Code Rule 42 LL - 1.002 to add the appr oximately 80 total acres

of the Expansion Parcel s as described in the Petition . After the addition , the

Amended District will contain approximately 2,048 a cres.

The District further seeks to correct an erroneous legal description for the

School Site, whi ch is currently excluded from the DistrictÔs boundaries. The

correction of the scrivenerÔs error , which referenced the legal description of

the School Site in rule 42LL - 1.002 as being recorded in Plat Book 29 , Page

49, instead of the correct reference to P lat Book 27 , Page 49. is intended to

ensure that the School Site remains excluded from the DistrictÔs boundaries.

The Expansion Parcel s are both owned, in their entirety, by WL

Residential Land, LLC . WL Residential Land, LLC , provided written consent

to t he proposed amendment of the DistrictÔs boundaries. Furthermore, the

favorable action of the Board of Supervisors of the District constitutes

consent for all of the lands within the District, as is evidenced by District

Resolutions 2020 - 06 and 2020 - 11, and by its status as a party to the Petition .

The District is presently providing infrastructure improvements to the

lands within its boundaries . T he District is not currently providing facilities

or services to the Expansion Parcel s , but expects to provide stormwater

management and utilities improvements to the Expansion Parcels .

The sole purpose of this proceeding was to consider the amendment of the

District boundary as proposed. Inasmuch as s ections 190.046 and 190.005

provide the statutory criteria to b e considered, this report summarizes the

relevant and material evidence relating to each relevant section of the

statute.

S UMMARY OF T HE R ECORD

A. Petition Contents and Related Matters

1 . The Petition was submitted to the Commission on June 23 , 2021 . A

c opy of the Petition was sent to Flagler County on June 21, 2021, and the

$15,000.00 filing fee was subm itted to Flagler County , in parts , on June 21,

2021, and July 9, 2021 .

2 . The Petition incorporated the following Exhibits:

a . Petition Exhibit 1 , which is a depiction of the

general location of the E xisting District boundary.

b . Petition Exhibit 2 , which is the metes and

bounds description of the E xisting District

boundary as incorporated by reference in Florida

Administrative Code Rule 42 LL - 1.002.

c . Petition Exhibit 3 , which is the metes and

bounds description of the Expansion Parcel s .

d . Petition Exhibit 4 , which is a depiction of the

general location of the Amended District boundary,

and the metes and bounds description of the

Amended District after the addition of the

Expansion Parcel .

e . Petition Exhibit 5 , which is the written Consent

of WL Residential Land, LLC, the owner (at the

time of the filing of the Petition ) of 100 percent of

the lands within the Expansion Parcel s, which

expressed its con sent to the amend ment of the

boundary of the Dist r ict .

f . Petition Exhibit 6 , which consists of Resolution

202 1 - 0 5 , by which the DistrictÔs Board of

Supervisors has approved and consented to the

amendment of the boundary of the District .

g . Petition Exh ibit 7 , which is th e General Land

Use Map for the District that depicts the general

distribution, location, and extent of the existing

and proposed residential, commercial, recreational,

environmentally sensitive, open space, and other

land uses for the Am ended District, in accordance

with the future land use plan element of Flagler

CountyÔs Future Land Use Plan .

h . Petition Exhibit 8 , which is a map of the current

major trunk water mains, sewer interceptors , and

outfalls within the Existing District and a s

proposed for the Expansion Parcels.

i . Petition Exhibit 9 , which describes the types of

facilities the District expects to finance, fund,

construct, acquire, and/or install, and the costs of

construction planned for the Expansion Parcels .

j . Petition Exhibit 1 0 , which is the Statement of

Estimated Regulatory Costs p repared in

accordance with the requirements of s ection

120.541, Florida Statutes.

k . Petition Exhibit 1 1 , which is the DistrictÔs

authorization of Katie S. Buchanan of Hopping

Green & Sams, P.A. , to act as its a gent relative to

the boundary amendment .

3 . The Petition described the Amended District as being part of a planned

community, with improvements estimated to be made, acquired, constructed ,

and/or installed from 2022 to 2024 , conditi oned on the effects of future

economic and market conditions on costs , including those related to labor,

services, materials, and interest rates .

4 . The Commission certified that the Petition contained the required

elements of a petition to amend the Distr ict boundary, though that

certification made no representation of the accuracy of the documents.

B. Summary of the Local Public Hearing

5 . Notice of the public hearing was advertised on August 17, 2021 ;

August 23 , 2021; August 30 , 2021; and September 5 , 2021, in t he Daytona

Beach News Journal , a newspaper of general paid circulation in Flagler

County , wh ich newspaper complies with the requirements for publication of

legal and official advertisements , pursuant to c hapter 50, Florida Statutes.

The published notice gave the time and place for the hearing, a description of

the area s to be added to t he District boundary , and other relevant

information.

6 . The local public hearing on the Petition was held as noticed on Monday,

September 13, 2021 , at 9:00 a.m., physically at the Hampton Inn & Suites,

150 Flagler Plaza Drive, Palm Coast, Florida 32137 , and virtually by Zoom

conference.

7 . The e xhibits received in evidence at the hearing consisted of: Hearing

Exhibit A, consisting of the p re - f iled w ritten t estimon y of Ms. Carvalho ;

Hearing Exhibit B, consisting of the prefiled written testimony of Kelly

White ; Hearing Exhibit C, consisting of the prefiled written testimony of

Jerry K. Finley ; and Hearing Exhibit D, consisting of the prefiled written

testimony of Mi guel Collazo, III . The four witness es also offered live

testimony in which the y fully adopted their pre - filed written testimony.

8 . Ms. Carvalho Ôs pre - filed testimony , Hear ing Exhibit A, included the

following exhibits, all of which were received into evid ence at the hearing:

a . Tab VC - 1 , which is the Petition , with each of the Petition Exhibits

listed in paragraph 2 herein;

b. Tab VC - 2, the June 23, 2021 , email transmittal of the Petition and

exhibits to the Commission ;

c. Tab VC - 3, the June 21, 2021 , co ver letter of transmittal of the

Petition to Flagler County, with copies of the two checks constituting the

$15,000.00 filing fee payable to Flagler County ;

d. Tab VC - 4, the July 19, 2021, letter from Flagler County attesting

that the Petition meets the Go als, Objectives, and Policies of the Flagler

County Comprehensive Plan, and other statutory criteria, and indicating its

approval of the boundary amendment without holding a hearing ;

e . Tab VC - 5 , the July 22, 2021 , certification from the Commission that

th e Petition contained all required elements and referr al of the Petition to

DOAH for the purpose of conducting the local public hearing re quired by

section 190.005(1)(d);

f . Tab VC - 6 , the Notice of Receipt of Petition published in the

August 26, 2021 , Flori da Administrative Register, Volume 47, Number 166 ,

Page 3948 ;

g . Tab VC - 7 , the August 3, 2021 , Notice of Hearing b y Zoom

Conference setting September 13, 2021 , as the date for the local public

hearing ;

h . Tab VC - 8 , the August 4, 2021 , certification from DE O that the

Petition contained no potential inconsistency with chapter 163 , or the Flagler

County 2035 Comprehensive Plan; and

i. Tab VC - 9 , a depiction of the general location of the Existing District

boundary, and of the Expansion Parcels.

9 . Mr. CollazoÔs pre - filed testimony, Hearing Exhibit D, included the

following exhibits, both of which were received into evidence at the hearing:

a. Tab MC - 1, consisting of the State Comprehensive Plan, chapter 187,

Florida Statutes; and

b. Tab MC - 2, consisting of the Flagler County 2010 - 2035 Comprehensive

Plan, Infrastructure Element.

10 . At the public hearing, the District introduced Hearing Exhibit E , the

proof of publication that the notice of the public hearing was advertised on

August 17, 2021; August 23, 2021; Au gust 30, 2021; and September 5, 2021,

in the Daytona Beach News Journal, a newspaper of general paid circulation

in Flagler County.

11 . The T ranscript of the local public hearing was filed with DOAH on

September 23, 2021 . The District also filed a Proposed Report of Findings and

Conclusions on October 22 , 2021 , which has been considered in the

preparation of this Report.

S UMMARY OF T HE T ESTIMONY A ND E VIDENCE

Contents of the Petition

12 . Section 190.046(1) provides, in pertinent part, that:

(a) The petition shall contain the same information

required by s. 190.005(1)(a)1. and 8. In addition, if

the petitioner seeks to expand the district, the

petition shall describe the proposed timetable for

construction of any district services to the area, the

estimated c ost of constructing the proposed

services, and the designation of the future general

distribution, location, and extent of public and

private uses of land proposed for the area by the

future land use plan element of the adopted local

government local compr ehensive plan.

13 . Furthermore, section 190.046(1)(f) provides, in pertinent part, that

ÑPetitions to amend the boundaries of the district that exceed the amount of

land [applicable here] ... shall include only the elements set forth in

s. 190.005(1)(a)1. and 5. - 8. and the consent required by paragraph (g).Ò

14 . Section 190.005(1)(a) provides, in pertinent part, that:

The petition shall contain:

1. A metes and bounds description of the external

boundaries of the district. ...

* * *

5. A map of the prop osed 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 cost of constructing the proposed

s ervices. These estimates shall be submitted in

good faith but are not 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 distr ict 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 local government

in compliance with the Community Planning Act.

8. A statement of estimated regulatory costs in

accordance with the requirements of s. 120.541.

15 . Section 190.046(1)(g) provides, in pertinent part, that Ñ[i]n all cases of

a petition to amend the boundaries of a district, the filing of the petition by

the district b oard of supervisors constitutes consent of the landowners within

the district. In all cases, written consent of those landowners whose land is to

be added to or deleted from the district ... is required.Ò

Section 190.005(1)(a)1.

16 . The Petition containe d the metes and bounds description of the

external boundaries of the D istrict as required by section 190.005(1)(a)1. See

Pet . Ex. 1 through 4.

Section 190.005(1)(a)5.

17 . The Petition contained a map of the proposed D istrict showing current

major trunk wat er mains and sewer interceptors and outfalls as required by

section 190.005(1)(a)5. See Pet . Ex. 8.

Section 190.005(1)(a)6.

18 . The Petition contained the proposed timetable for construction of the

D istrict services and the estimated cost of constructing t he proposed services

as required by section 190.005(1)(a)6. See Pet . Ex. 9.

Section 190.005(1)(a)7.

19 . The Petition contained a designation of the future general

distribution, location, and extent of public and private uses of land proposed

for the area w ithin the D istrict as required by section 190.005(1)(a)7. See Pet .

Ex. 7.

Section 190.005(1)(a)8.

20 . The Petition contained a statement of estimated regulatory costs

(SERC) in accordance with the requirements of s ection 120.541 , Florida

Statutes, as requi red by section 190.005(1)(a)8. See Pet . Ex. 10.

21 . Ms. Carvalho explained the purpose of the SERC, the economic

analysis presented therein, and the data and methodology used in preparing

the SERC. She also explained that the scope of the SERC addresses on ly the

expansion of the District boundary, and not the planning or development of

the D istrict itself. Her testimony is accepted.

22 . The SERC contains the assumptions regarding the development

within the Amended District and the infrastructure provided b y the District.

The SERC addresses an estimate of the costs and benefits to all persons

directly affected by the proposed rule to amend the boundary of the District,

including the State of Florida and its citizens, Flagler County and its citizens,

and the property owners within the Existing District and the Expansion

Parcels. The SERC found no adverse impacts on any potentially affected

entities.

23 . Ms. Carvalho testified that the economic benefits of the proposed

expansion will exceed the economic costs t o the District, Flagler County, and

to all subsequent purchasers and landowners of the Amended District.

24 . The state and its citizens will only incur modest costs from amending

chapter 42LL - 1 and the DistrictÔs boundary as proposed, including reviewing,

processing, and analyzing the Petition, and conducting public hearings.

25 . Ongoing state costs related to the Amended District are limited to the

receipt and processing of reports that are required to be filed with the state

and its various entities. Cos ts to the state agencies that will receive and

process the Amended DistrictÔs reports are expected to be minimal, if any,

especially since those reports are already being submitted on behalf of the

Existing District. The District is one of many governmenta l subdivisions

required to submit reports to the state. Pursuant to section 189.018, Florida

Statutes, the Amended District will pay an annual fee to DEO to offset

processing costs.

26 . It is not anticipated that Flagler County will incur costs in reviewin g

the Petition, as the District remitted a $15,000.00 filing fee to Flagler County

to offset any such costs. As is the case with the Existing District, annual costs

to Flagler County related to the Amended District are expected to be

minimal. Since the Ame nded District is an independent unit of local

government, the only annual costs incurred by Flagler County will be the

minimal costs of receiving and reviewing the various reports that the

Amended District will be required to provide to Flagler County . Tho se reports

are already provided on behalf of the Existing District . In addition, to the

extent the Amended District utilizes the services of the Flagler County

Property Appraiser or Tax Collector to collect assessments, the Amended

D istrict must pay the co sts associated with those services, which the District

currently does each year.

27 . The District currently levies non - ad valorem special assessments on

the lands within its boundaries for the payment of debt service expenses

relative to the construction a nd/or acquisition of facilities and services.

Landowners within the Expansion Parcels will be required to pay non - ad

valorem assessments levied by the District to secure repayment of the

DistrictÔs bond debt. In addition, the District may also impose a non - ad

valorem assessment to fund the operations and maintenance of the facilities

within the Expansion Parcels.

28 . Finally, pursuant to chapter 190, the debt of the Amended District

cannot become the debt of Flagler County or the State of Florida. S ince th e

Amended District will be an independent special district government which

can, and has, issued its own bonds, the Amended District will have no effect

on the bonding capacity of Flagler County o r the State of Florida.

29 . The evidence in this case establ ishes that the SERC meets all

requirements of section 120.541.

Section 190.046(1)(g)

30 . The Petition contained the consent of the landowners within the

D istrict as required by section 190.046(1)(g). See Pet . Ex. 5 and 6.

ScrivenerÔs Error

31. Th e Petitio n seeks to correct an erroneous legal description for the

School Site . The School Site is currently excluded from the DistrictÔs

boundaries , and the correction is intended to ensure that the School Site

remains excluded from the DistrictÔs boundaries. The Petition noted that,

when the excluded School Site was identified in the description of the

DistrictÔs boundaries in rule 42LL - 1.002 , the legal description showed the

School Site as being recorded in in Plat Book 29 , Page 49, instead of the

correct Plat Bo ok 27 , Page 49 . The correction of the scrivenerÔs error has no

effect on the School Site remain ing excluded from the DistrictÔs boundaries.

Ms. Carvalho testified as to the accuracy of the information contained in the

Petition. Ms. CarvalhoÔs testimony con stitutes competent, substantial

evidence of the inadvertent cause, and the lack of substantive effect resulting

from the correction of the scrivenerÔs error.

Factors for consideration by the Commission

32 . The standards applicabl e to the CommissionÔs det ermination of

whether to grant or deny the Petition are those in section 190.005(1)(e) 1.

through 6.

Section 190.005(1)(e)1. - Whether all statements contained within the

Petition have been found to be true and correct.

33 . M s. Carvalho testified as to th e accuracy of the information contained

in the Petition . She als o prepared, or had others prepare under h er

supervision, Petition Exhibit 1 0 , the SERC . M s. Carvalho Ôs testimony

constitutes competent, substantial evidence of the accuracy of the statements

i n the Petition and the exhibits attached thereto.

34 . M s. White , as Chairperson of the DistrictÔs Board of Supervisors,

testified to h er familiarity with, and the accuracy of the information

contained in , the Petition , including the Joint Exhibits. Furthe rmore,

Ms. White testified that she reviewed the request of WL Residential Land,

LLC, owner of 100 percent of the lands within the Expansion Parcels, to add

its property to the District boundary, and was familiar with Resolution 2021 -

05, by which the Distr ictÔs Board of Supervisors approved and consented to

the amendment of the boundary of the District. Ms. WhiteÔs testimony

constitutes competent, substantial evidence of the accuracy of the statements

in the Petition and the exhibits attached thereto, inclu ding Petition Exhibits

5 and 6.

35 . Mr. Finley testified that he prepared, or had others prepare under h is

supervision, Petition Exhibits 1 through 4 and 7 through 9 . M r. Finley

testified that th o se exhibits accurately depict and describe the boundaries

an d legal descriptions of the parcels of property at issue ; Flagler CountyÔs

future land uses for the parcels of property at issue ; the location and

description of the existing major trunk water mains, and wastewater

interceptors and outfalls associated with the Amended District ; and the types

of facilities and services anticipated in the Amended District as well as the

entities anticipated for future ownership, operation and maintenance, and

anticipated construction costs . M r. FinleyÔ s testimony constitutes competent,

substantial evidence of the accuracy of Petition Exhibits 1 through 4 and

7 through 9 .

36 . Based on the testimony and evidence of record, and in the absence of

evidence to the contrary, the statements contained in the Petition and the

exhibits t hereto are true and correct.

Section 190.005(1)(e) 2 . - Whether the amendment of the District boundary

is inconsistent with any applicable element or portion of the State

Comprehensive Plan or of the effective local government comprehensive

plan.

37 . Mr. Collazo reviewed the proposed District boundary amendment for

consistency with the State Comprehensive Plan .

38 . The State Comprehensive Plan Ñprovides long - range policy guidance

for the orderly social, economic and physical growth of the State . Ò Mr. Col lazo

testified that the S tate C omprehensive Plan does not specifically address the

issue of expanding districts. Nonetheless, o f the 25 subjects in the State

Comprehensive Plan, M r. Collazo identified Subject No. 17 - Public Facilities ;

and Subject No. 2 0 - Governmental Efficiency , as relevant to the question of

expanding services to the Amended District .

39 . Subject No. 17 relates to the protection of existing public facilities ;

providing financing for new facilities ; allocating the costs of new public

fac ilities on the basis of the benefits received by future residents;

implementing innovative but fiscally sound techniques for financing public

facilities, and identifying and using stable revenue sources for financing

public facilities. Mr. Collazo testifie d that the amendment of the District

boundary is not inconsistent with State Comprehensive Plan goals and

policies in that subject. Mr. Collazo Ô s testimony constitutes competent,

substantial evidence that the proposed boundary amendment is not

inconsistent with the public facilities goal of the State Comprehensive Plan.

There was no evidence to the contrary.

40 . Subject No. 2 0 recognizes the importance of Florida governments

economically and efficiently providing the amount and quality of services

required by the public. Policy 2 provides for the creation of independent

special taxing districts to avoid overburdening other governmental units and

their taxpayers. Mr. Collazo testified that the amendment of the District

boundary is not inconsistent with State Comprehensive Plan goals and

policies in that subject. Mr. CollazoÔs testimony constitutes competent,

substantial evidence that the proposed boundary amendment is not

inconsistent with the public facilities goal of the State Comprehensive Plan.

There was n o evidence to the contrary.

41 . Based on the evidence adduced at the hearing, the Amended District

will not be inconsistent with any applicable provision of the State

Comprehensive Plan.

42 . Mr. Collazo also reviewed the Amended District for consistency w ith

the Flagler County Comprehensive Plan .

43 . Chapter 190 prohibits a community development district from acting

in any manner inconsistent with the local governmentÔs comprehensive plan.

There is nothing in the record of this proceeding to suggest that the

expansion of the DistrictÔs boundaries will impact the land use or

development of the Expans ion Parcels.

44 . Ms. Carvalho testified that the District expects to provide stormwater

management and utilities improvements to the E xpansion Parcels.

Mr. Col lazo noted that Goal D.1. of the Flagler County Comprehensive Plan

requires planning and coordination between public and private utility

providers for the development, operation, and maintenance of cost - effective

and efficient potable water and wastewater systems that promote timely,

orderly, and efficient land development patterns while protecting public

health and the environment; while Goal D.4. requires the development,

operation, and maintenance of a cost - effective and efficient surface water

managemen t system which, among other things, minimizes flood damage and

losses. Mr. Collazo testified that the Amended District will further those

goals because it will provide those types of improvements in an efficient and

cost - effective manner to the lands withi n the Expansion Parcels.

45 . M r. Collazo Ôs testimony constitutes competent, substantial evidence

that the proposed boundary amendment will not be inconsistent with any

applicable element of the Flagler County Comprehensive Plan . There was no

evidence to th e contrary.

46 . Based on the evidence adduced at the hearing, the Amended District

will not be inconsistent with any applicable provision of the Flagler County

Comprehensive Plan .

Section 190.005(1)(e)3. - Whether the area of land within the Amended

Dist rict is of sufficient size, is sufficiently compact, and is sufficiently

contiguous to be developable as one functional interrelated community.

47 . The Amended District will include approximately 2,048 acres, located

entirely within Flagler County .

48 . M s . Carvalho testified that the Amended District has sufficient land

area, is sufficiently compact and contiguous to be developed, and has , in fact,

been developed as one functional, interrelated community . She further

testified that the boundary amendment w ill have no impact on that

functionality.

49 . M r. Finley testified that there are significant infrastructure needs

within the District , including the E xpansion Parcels, that make the Amended

D istrict developable as a functionally interrelated community. T he design of

the District allows infrastructure to be provided to the Expansion Parcels in a

cost - effective manner, and the services and facilities completed or planned by

the District will provide a contiguous and homogenous method of providing

services t o the Expansion Parcels. Thus, the addition of the Expansion

Parcel s will allow facilities to be provided in the Amended District in an

efficient, functional, and inte grated manner.

50 . The testimony of M s. Carvalho and M r. Finley constitute competent,

su bstantial evidence that the Amended District will be of sufficient size,

sufficiently compact, and sufficiently contiguous to be developed as a single

functionally interrelated community. There was no evidence to the contrary.

Section 190.005(1)(e)4. - Wh ether the Amended District remains the best

alternative available for delivering community development services and

facilities to the area that will be served by the Amended District.

51 . M s. Carvalho testified that , to date, the District has been the

mec hanism used to plan, finance, construct, operate , and maintain the public

facilities and services within the E xisting District . The District has or will

construct or acquire facilities that will be needed for the Amended District.

The infrastructure needed for the Expansion Parcels is of the same type that

the District has provided in the Existing District. The District can also

maintain facilities in the Expansion Parcels incrementally , which means that

additional facilities can simply be added to the Dist rictÔs existing

maintenance program at an incremental cost. Accordingly, the Amended

District is the best alternative to provide such facilities and services to the

area to be served.

52. Th e District structure allows the community development process to

meet needs within the Amended District, and restricts costs to those who will

benefit from the services. Ms. Carvalho testified convincingly that the use of

non - ad valorem or special assessments on the property in the Amended

District to repay debt incurre d in providing facilities, and assessments for

operation and maintenance, will allocate costs to those receiving the benefit

of District services, and is less burdensome than having facilities and services

provided by Flagler County, and more efficient tha n through a property

ownerÔs association.

53 . M r. Finley testified that the Amended District will be capable of

efficiently financing and overseeing t he construction of necessary capital

improvements for development of the Expansion Parcels. In addition, as a

unit of special - purpose government, the district is more effective than typical

property owner associations in working with local general - purpose

governments to ensure that necessary public infrastructure improvements

are provided in a timely and effi cient manner. The fact that the D istrict is an

existing, functioning entity will benefit the Expansion Parcels.

54 . The testimony of M s . Carvalho and Mr. Finley constitute competent,

substantial evidence that the Amended District remains the best alternat ive

available for delivering community development services and facilities to the

area that will be served by the Amended District. There was no evidence to

the contrary.

Section 190.005(1)(e)5. - Whether the community development services

and facili ties of the Amended District will be incompatible with the

capacity and uses of existing local and regional community development

services and facilities.

55 . M s. Carvalho testified that the services and facilities needed for the

Expansion Parcels are the same type of infrastructure provided by the

E xisting District and , thus , are not incompatible with the capacity and use of

existing local or regional community development services and facilities.

56 . M r. Finley testified that the services and facilities to be provided by

the Amended District are not incompatible and , in fact , remain fully

compatible with the capacities and uses of the existing local or regional

community development facilities and with those provided by the E xisting

District.

57 . The tes timony of M s. Carvalho and Mr. Finley constitute competent,

substantial evidence that the community development services and facilities

of the Amended District will not be incompatible with the capacity and uses

of existing local and regional community dev elopment services and facilities.

There was no evidence to the contrary.

Section 190.005(1)(e)6. - Whether the area that will be served by the

Amended District is amenable to separate special - district government.

58 . M s. Carvalho testified that the addit ion of the Expansion Parcels will

not affect the ability of the Amended District to operate as a separate special -

district government, and will not change the way the unit of government is

operating either now or into the future. The Existing District is a planned

community with facilities and services provided, operated, and maintained by

the District. The Amended District is an efficient mechanism to serve the

Expansion Parcels, and to continue to oversee the operation and maintenance

of the facilities pr esently serving residents within its boundary. In addition,

the Amended District is of sufficient size, compactness , and contiguity to

constitute one functionally interrelated community. Thus, it was

Ms. CarvalhoÔs opinion that the Amended District is amen able to separate

special - district government.

59 . Mr. Finley testified that t he area within the Amended District will

continue to constitute an efficient mechanism for providing the necessary

capital infrastructure improvements for development of the Expa nsion

Parcels . It was Mr. FinleyÔs opinion that s pecial - district governance is

appropriate for the Amended District because it provides a mechanism

whereby long - term maintenance obligations can be satisfied by the persons

using the facilities and services.

60 . The testimony of M s. Carvalho and Mr. Finley constitute competent,

substantial evidence that the area that will be served by the Amended

District is amenable to separate special - district government. There was no

evidence to the contrary.

Other Proce dural Elements

61 . The District has complied with the provisions of s ection

190.005(1)(b)1., in that Flagler County was provided a copy of the Petition

and was paid the requisite filing fee prior to the District filing the Petition

with the Commission.

62 . Section 190.005(1)(d) require d the District to publish notice of the local

public hearing in a newspaper of general paid circulation in Flagler County

for four consecutive weeks prior to the hearing. The notice was published in

the Daytona Beach News Jour nal on August 17, 2021; August 23, 2021;

August 30, 2021; and September 5, 2021.

63 . The Commission has certified that the Petition meets all of the

requirements of s ections 190.046(1)(f) and 190.005(1)(a) .

Public Comment

64 . No m embers of the public at tended the public hearing either at the

physical Palm Coast location or via Zoom .

A PPLICABLE L AW

65 . This proceeding is governed by chapter 120, sections 190.005 and

190.046 , and Florida Administrative Code C hapter 42 - 1.

66 . The District was established by the adoption of chapter 42LL - 1, to

include 846 acres. See In re: Petition for Rule Creation - Tomoka Community

Development District , DOAH Case No. 03 - 0908 (Fla. DOAH Report , June 18,

2003; Chapter 42LL - 1, effective Oct. 2, 2003). In 2006, the District u nderwent

a boundary amendment adding 1,122 acres to the District, resulting in the

current area of 1,968 acres. See In Re: Petition to Amend the Boundaries of

the Tomoka Community Development District , DOAH Case No. 05 - 4511

(Fla. DOAH Report , May 10, 2006; Chapter 42LL - 1 , amendment effective

Dec. 19, 2006).

67 . The District satisfied the statutory notice requirements by providing

Flagler County with a copy of the Petition and paying the required filing fee

as required by section 190.005(1)(b). The District also published notice of the

local public hearing in a newspaper of general paid circulation and of general

interest and readership in Flagler County once each week for the four

consecutive weeks immediately prior to the hearing in the manner required

by s ection 190.005(1)(d).

68 . A local public hearing was conducted in accordance with chapter 120,

as specified in the published notice.

69 . Section 190.046(1) provides, in pertinent part, that :

(1) A landowner or the board may petition to

contract or expand t he boundaries of a community

development district in the following manner:

* * *

(e)1. During the existence of a district initially

established by administrative rule, the process to

amend the boundaries of the district pursuant to

paragraphs (a) - (d) sh all not permit a cumulative

net total greater than 50 percent of the land in the

initial district, and in no event greater than 1,000

acres on a cumulative net basis. ...

(f) Petit ions to amend the boundaries of the district

that exceed the amount of land specified in

paragraph (e) shall be processed in accordance with

s. 190.005, and the petition shall include on ly the

elements set forth in s. 190.005(1) (a)1 . and 5. - 8.

and the consent required by paragraph (g). ...

(g) In all cases of a petition to amen d boundaries o f

a district, the filing of the petition by the district

board of supervisors constitutes consent of the

landowne rs within the district. In all cases, written

consent of those landowners whose land is to be

added to or deleted from the distri ct as provided in

s. 190.005(1)(a)2. is required.

70 . Section 190.005(1) provides, in pertinent part, that:

(1) The exclusive and uniform method for the

establishment of a community development district

with a size of 1,000 acres or more shall be pursuant

to a rule, adopted under chapter 120 by the Florida

Land and Water Adjudicatory Commission,

granting a petition for the establishment of a

community development district.

(a) A petition for the establishment of a community

development district shall be f iled by the petitioner

with the Florida Land and Water Adjudicatory

Commission . The petition shall contain:

1. A metes and bounds description of the external

boundaries of the district . Any real property within

the external boundaries of the district whic h 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 exter nal

boundaries of the district which is to be excluded

from 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 up on available data, the proposed

time table for construction of the district services

and the estimated cost of constructing the proposed

services . These estimates shall be submitted in

good faith but are not binding and may be subject

to change.

7. A designation of the future general distrib ution,

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

appli cable general - purpose local government in

compliance with the Community Planning Act.

8. A statemen t of estimated regulatory costs in

accorda nce with the requirements of s. 120.541.

71 . The Petition includes t he elements required by section 190.005(1)(a) 1.

and 5. - 8.

72 . The Consent and Joinder of Landowner introduced as Exhibit A, Tab

VC - 1, Petition Exhibit 5, establishes that the District provided the requisite

consent of the landowner of the Expansion Parcels, thus meeting the

landowner consent require ments of section 190.046(1)(g).

73 . In addition to the elements set forth in s ection 190.005(1)(a)1. and

5. - 8. and the consent required by paragraph (g), s ection 190.046(1)(a)

provides , in pertinent part, that :

... if the petitioner seeks to expand the district, the

petition shall describe the proposed timetable for

construction of any district services to the area, the

estimated cost of constructing the proposed

services, and the designation of the future general

distribution, location, and extent of pu blic and

private uses of land proposed for the area by the

future land use plan element of the adopted local

government local comprehensive plan.

74 . As established herein, the District provided the description of services

and facilities, a summary of cap ital improvement plan costs, and the

designation of future public and private land uses as required.

75 . Section 190.005 (1) (d) provides, in pertinent part, that:

A local publi c hearing on the petition shall be

conducted by a hearing officer in conformance with

the applicable requirements and procedures of the

Administrative Procedure Act . The hearing shall

include oral and written comments on the petition

pertinent to the factors specified in paragraph

76 . The local public hearing was con ducted by the undersigned in

accordance with the Administrative Procedure Act, and included oral and

written comments on the P etition as required.

77 . Section 190.005(1)(e) provides that:

The Florida Land and Water Adjudicatory

Commission shall consider th e entire record of the

local hearing, the transcript of the hearing,

resolutions adopted by local general - purpose

governments as provided in paragraph (c), and the

following factors and make a determination to

grant or deny a petition for the establishment of a

community development district:

1. Whether all statements contained within the

petition have been found to be true and correct.

2. Whether the establishment of the district is

i nconsistent with any applicable element or portion

of the state compreh ensive plan or of the effective

local government comprehensive plan.

3. 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 c ommunity.

4. Whether the district is the best alternative

available for delivering community development

services and facilities to the area that will be

served by the district.

5. Whether the community development services

and facilities of the district will be incompatible

with the capacity and uses of existing local and

regional community development services and

facilities.

6. Whether the area that will be served by the

district is amenable to separate special - district

government.

78 . E ach of the sta tutory criteria in section 190.005(1)(e) has been

satisfied , as established by competent , substantial evidence described herein .

79 . The evidence in this proceeding established by competent, substantial

evidence described herein, that the statements conta ined in the Petition are

true and correct. § 190.005(1)(e)1., Fla. Stat.

80 . The evidence in t his proceeding established by competent, substantial

evidence described herein, that the amendment of the District's boundar y

will not be inconsistent with eithe r Flagler CountyÔs Comprehensive Plan or

the S tate C omprehensive P lan. § 190.005(1)(e)2., Fla. Stat.

81 . The evidence in this proceeding established by competent, substantial

evidence described herein, that, after the addition of the Expansion Parcel s ,

th e A mended District will continue to be of sufficient size, sufficiently

compact, and sufficiently contiguous to be developable as one functional

interrelated community. § 190.005(1)(e)3., Fla. Stat.

82 . The evidence in this proceeding established by compe tent, substantial

evidence described herein, that , after the addition of the Expansion Parcel s ,

the Amended District will continue to be the best alternative available for

delivering community development services and facilities to the remaining

a reas that will be served by the district . § 190.005(1)(e)4., Fla. Stat.

83 . The evidence in this proceeding established by competent, substantial

evidence described herein, that the services and facilities that will be

provided in the Amended District are not inco mpatible with the capacity or

uses of any local or regional community development services and facilities .

§ 190.005(1)(e)5., Fla. Stat.

84 . The evidence in this proceeding established by competent, substantial

evidence described herein, that, after the a ddition of the Expansion Parcel s ,

the District is amenable to separate special - district government.

§ 190.005(1)(e)6., Fla. Stat.

85 . The evidence in this proceeding established no reason to deny the

request to correct the scrivenerÔs error regarding the l e gal description for the

School Site by show ing the School Site as being correctly recorded in Plat

Book 27 , Page 49. That correction will clarify the intended exclusion of the

School Site from the DistrictÔs boundaries .

C ONCLUSION

Based upon the foregoi ng F indings of F act and Applicable L aw, the

undersigned concludes that the proposed boundary amendment satisfies the

statutory requirements, and that there is no reason not to grant the Dist r ictÔs

request to add approximately 80 acres to the 1, 968 acres th at comprise the

Existing District, which will result in a District boundary encompassing

approximately 2,048 acres ; to correct the scrivenerÔs error regarding the

excluded School Site so that the affected clause shall read Ñ Less and Except

the Plantation Bay School Site recorded in Plat Book 27 , Page 49 of the

Public Records of Flagler County, Florida Ò ; and to amend Florida

Administrative Code Chapter 42 LL - 1, consistent therewith .

D ONE A ND E NTERED this 27th day of October , 20 21 , in Tallahassee, Leon

County, Florida.

S

E. G ARY E ARLY

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

t his 27th d ay of October , 2021.

C OPIES F URNISHED :

Joshua Elliott Pratt, Esquire Katie S . Buchanan, Esquire

Florida Land and Water Hopping Green & Sams, PA

Adjudicatory Commission Suite 300

Governor Ôs Legal Office 119 South Monroe Street

Room 209, The Capitol Tallahassee, Florida 32301

Tallahassee, Florida 323 99 - 0001

Barbara Leighty, Clerk

Chris Spencer, Secretary Transportation and Economic

Florida Land and Water Development Policy Unit

Adju dicatory Commission Room 1802, The Capitol

Room 1802, The Capitol Tallahassee, Florida 32399 - 0001

Tallahassee, Florida 32399 - 0001