22-000046 In Re: Petition To Establish The Westview South Community Development District vs. * Status: Closed DOAH Report on Wednesday, June 8, 2022.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

I N R E : P ETITION T O E STABLISH T HE

W ESTVIEW S OUTH C OMMUNITY Case No. 22 - 0046

D EVELOPMENT D ISTRICT .

/

A DMINISTRATIVE L AW J UDGE Ô S R EPOR T T O T HE

F LORIDA L AND A ND W ATER A DJUDICATORY C OMMISSION

On March 30, 2022, Administrative Law Judge Hetal Desai of the

Division of Administrative Hearings (DOAH) conducted two public hearings

at the following locations and times: (1) at 10:00 a.m. at the Ramada by

Wyndham Davenport Orlando South, 43824 Highway 27, Davenport, Florida;

and (2) at 2:00 p.m. , at the Hampton Inn & Suites by Hilton, 4971 Calypso

Cay Way, Kissimmee, Florida. The purpose of the local public hearings was to

take testimony and publi c comment, and receive exhibits on the Amended

Petition to Establish the Westview Community Development District

(Amended Petition).

A PPEARANCES

For Petitioner: Jere Earlywine, Esquire

KE Law Group, PLLC

2016 Delta Boulevard , Suite 101

Tall ahassee, Florida 32303

S TATEMENT OF T HE I SSUE S

This report is prepared and submitted to the Florida Land and Water

Adjudicatory Commission (Commission) for consideration in its

determination of whether to adopt a rule establishing the Westview South

Comm unity Development District (District) in Osceola and Polk Counties.

The issues before the Commission in this proceeding are whether the

Amended Petition meets the criteria of c hapter 190, Florida Statu t es , and

Florida Administrative Code Chapter 42 - 1, and whether the hearing process

was conducted pursuant to the requirements of section 190.005, Florida

Statutes (2021). 1

P RELIMINARY S TATEMENT

On November 29, 2021, Petitioner filed a Petition to Establish the

Westview South Community Development District (Pe tition) with the

Commission. Petitioner previously submitted the Petition and its exhibits,

along with the requisite filing fee, to both Polk County and Osceola County,

Florida, as required by section 190.005 (1) (b) 1.

On January 6, 2022, the Secretary of the Commission certified that the

Petition contained all required statutory elements and forwarded it to DOAH

to conduct the local public hearing as required by section 190.005(1)(d). The

matter was assigned to the undersigned and set for two public hearin gs, one

in Osceola County and another in Polk County.

On January 10, 2022, the Board of County Commissioners of Osceola

County (Osceola Board) announced its support of the Petition without holding

a public hearing. Similarly, on January 4, 2022, the Boar d of County

Commissioners of Polk County (Polk Board) advised the Commission that it

supports the Petition but did not hold a public hearing.

On March 14, 2022, the District filed the Amended Petition with DOAH.

The Amended Petition changed the amount of acreage of the District to

include conservation areas at the northern boundary.

On March 15, 2022, a Notice of Receipt of Petition was published in the

Florida Administrative Register, Volume 48, Number 51.

1 All rule and statutory references are to the 2021 versions unless otherwise indicated.

On January 24, 2022, the undersigned issued a Notice of Hearing, setting

local public hearings in both Osceola and Polk Counties.

On January 28, 2022, the Department of Economic Opportunity (DEO)

certified to the Commission that the Petition was consistent with

chapter 163, Florida Statutes.

Petitio ner published notice of the local public hearings in accordance with

section 190.005(1)(d). At the local public hearings, Petitioner presented the

live and/or written testimony of the following witnesses:

1. Heather Isaacs, Forward Planning Director of Tay lor Morrison of

Florida, Inc.;

2. Craig Wrathell, District Manager, President of Wrathell, Hunt &

Associates, LLC, and an assessment consultant;

3. Santiago Machado, Project Manager at Atwell, LLC, the District Ô s

Engineer, and an expert in civil engineerin g; and

4. Bryan Gaines, Director of Planning at RVi Planning and Landscape

Architecture, a certified Professional Planner, and an expert in state and

local comprehensive planning.

Petitioner Ô s Exhibit s A through H were admitted into evidence and are

descr ibed as follows:

Composite Exhibit A - Amended Petition with attachments Exhibits 1

through 8;

Exhibit B Ï T estimony of Ms. Isaacs, including attachments HI - 1 through

HI - 7;

Exhibit C Ï T estimony of Mr. Wrathell;

Exhibit D Ï T estimony of Mr. Machado;

Exh ibit E Ï T estimony of Mr. Gaines;

Exhibit F Ï Notice of Receipt of Petition, Florida Administrative Register ;

Exhibit G - Proof of publication for the notice of the Osceola County public

hearing ; and

Exhibit H - Proof of publication for the notice of the Polk County public

hearing.

Josh Kaylin, Petitioner Ô s representative, was at the local public hearing.

No members of the public appeared at either the Osceola or Polk County

hearing locations.

Pursuant to r ule 42 ၅ 1.012, after the close of the local publ ic hearings, the

record was left open for ten days, until April 11, 2022, for submittal of

written comments from the public in support of or in opposition to the

Amended Petition. No written statements were submitted to DOAH.

The Transcript s of the local public hearings were filed with DOAH on

May 20, 2022. Petitioner filed a Proposed Report of Findings and Conclusions

on that same day, which has been considered in the preparation of this

Report.

S UMMARY OF T ESTIMONY A ND E VIDENCE

1 . The proposed District is located entirely within Osceola and Polk

Count ies , Florida, and covers approximately 1,015.431 acres of land. The site

of the District is generally located northwest of the intersection of Poinciana

Parkway and Cypress Parkway.

2 . There are no parcels w ithin the external boundaries of the District

which are to be excluded from the District.

A MENDED P ETITION

3 . The Commission has certified that the Petition met all of the

requirements of section 190.005(1)(a). The undersigned confirms that based

on the te stimony and evidence provided in the Amended Petition and at the

public hearings, Petitioner has complied with the provisions of section

190.005(1)(a), and the Amended Petition contains all required information as

set forth below.

4 . The Amended Petition c ontains the metes and bounds description of the

external boundaries of the District as required by section 190.005(1)(a)1.

5 . Petitioner has obtained written consent to establish the District from

the owners of 10 0 percent of the real property located wit hin the District as

required by section 190.005(1)(a)2.

6 . The Amended Petition designates the following people to be the initial

members of the board of supervisors for the District , as required by section

190.005(1)(a)3 . : Heather Isaacs, Nora Schuster, D amon Cascio, Julie

Aragona, and Jeff Stalder.

7 . The Amended Petition includes the name of the District , Ñ Westview

South Community Development District, Ò as required by section

190.005(1)(a)4.

8. The Amended Petition contains a map of the District showing current

major trunk water mains and sewer interceptors and outfalls as required by

section 190.005(1)(a)5.

9. The Amended Petition contained the proposed timetable for

construction of the District services and the estimated cost of constructing

the propose d services as required by section 190.005(1)(a)6. Petitioner

expects the District to finance and fund the estimated costs of construction,

and construct, acquire , and install any required infrastructure and

improvements.

10 . These improvements are estimat ed to be made, acquired, constructed ,

and installed in four phases over an estimated eight - year period from 2022

through 2030. Actual construction timetables and expenditures may vary, due

in part to the effects of changes in the economic conditions, labor and

materials costs, interest rates, and market conditions.

11 . The Amended Petition contains a designation of the future general

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

for the area within the District as required b y section 190.005(1)(a)7.

E STIMATED R EGULATORY C OSTS

12 . The Amended Petition contains a statement of estimated regulatory

costs (SERC) in accordance with the requirements of section 120.541, Florida

Statutes. See § 1 90.005(1)(a)8 . , Fla. Stat. The SERC in the Amended Petition

contains an estimate of the costs and benefits to all persons directly affected

by the proposed rule to establish the District including the State, Polk

County, Osceola County, and the citizens of these jurisdictions. It also

contains an estimate of costs and benefits to all future citizens and

landowners in the District .

13 . Beyond administrative costs related to rule adoption, the State and its

citizens will only incur minimal costs from establishing the District. These

costs are rel ated to the incremental costs of various agencies for reviewing

any additional local government reports.

14. Moreover, any debt obligations incurred by the District to construct its

infrastructure, or for any other reason, are not debts of the State of Fl orida or

any unit of local government .

L OCAL G OVERNMENT S UPPORT FOR E STABLISHMENT .

15 . Pursuant to the requirements of s ection 190.005(1)(b), Petitioner filed

a copy of the Petition and paid a $15,000 filing fee with Polk County prior to

filing the Petitio n with the Commission.

16 . The Polk Board did not hold a public hearing on the establishment of

the District as allowed, but not required by section 190.005(1)(c).

17 . Similarly, Petitioner filed a copy of the Petition and paid a $15,000

filing fee with O sceola County prior to filing the Petition with the

Commission. See § 190.005(1)(b), Fla. Stat.

18 . The Osceola Board did not hold a public hearing on the establishment

of the District as allowed, but not required by section 190.005(1)(c).

P UBLIC N OTICE

19 . Section 190.005(1)(d) requires that a petitioner seeking to establish a

community development district publish notice of the local public hearing in

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

community development district is to b e located for four consecutive weeks

prior to the hearing.

20 . The notice for the public hearings in these proceedings was published

in the Osceola News ၅ Gazette, a newspaper of general paid circulation in

Osceola County, for four consecutive weeks on Marc h 3, 10, 17, and 24, 2022.

21 . The notice was also published in The Ledger, a newspaper of general

paid circulation in Polk County, for four consecutive weeks on March 3, 10,

17, and 24, 2022.

F ACTORS F OR C ONSIDERATION B Y T HE C OMMISSION

22 . The standards applicable to the Commission Ô s determination of

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

through 6.

S ECTION 190.005(1)( e )1. - W HETHER A LL S TATEMENTS C ONTAINED W ITHIN T HE

A MENDED P ETITION H AVE B EEN F OUND T O B E T RUE A ND C O RRECT .

23 . Ms. Isaacs stated that she had reviewed the contents of the Amended

Petition and generally described the attachments to the Amended Petition.

She stated that the Amended Petition and its attachments ( Petitioner Ô s

Composite Exhibit A ) are true a nd correct to the best of her knowledge.

24 . Mr. Wrathell stated that he had reviewed the contents of the Amended

Petition. He stated that the Amended Petition and its attachments, as

admitted into evidence as Petitioner Ô s Composite Exhibit A, are true an d

correct to the best of his knowledge.

25 . Mr. Machado stated that he assisted with the preparation of certain

exhibits to the Amended Petition, specifically Exhibits 1, 2, and 4, through 6,

and stated that these exhibits are true and correct .

26 . No one disputed or offered evidence contradicting the statements in

the Amended Petition or the information in its attachments.

27 . Based on the record, and in the absence of evidence to the contrary,

Petitioner has established that the statements contained in the Amended

Petition and the attachments are true and correct.

S ECTION 190.005(1)( e )2. - W HETHER T HE D ISTRICT B OUNDARY I S I NCONSISTENT

W ITH A NY A PPLICABLE E LEMENT O R P ORTION O F T HE S TATE C OMPREHENSIVE

P LAN O R O F T HE E FFECTIVE L OCAL G OVERNMENT C OMPREHENSI VE P LAN .

28 . Ñ The State Comprehensive Plan shall provide long - range policy

guidance for the orderly social, economic, and physical growth of the state. Ò

§ 187.101(1), Fla. Stat.

29 . Mr. Gaines, an expert in the field of state and local comprehensive

plann ing, reviewed the Amended Petition and the provisions of the State

Comprehensive Plan relating to the establishment of a community

development district.

30 . Mr. Gaines specifically addressed three subjects of the State

Comprehensive Plan that directly app ly to the establishment of the District .

First, Subject No. 15 of the State Comprehensive Plan, Land Use, recognizes

the importance of enhancing the quality of life in Florida by ensuring that

future development is located in areas that have the fiscal abi lity and service

capacity to accommodate growth. Mr. Gaines testified that the District will

have the fiscal ability to provide services and facilities to the population in

the designated growth area and help provide infrastructure in an area that

can acco mmodate development in a fiscally responsible manner.

3 1 . Second, regarding Subject No. 17 of the State Comprehensive Plan,

Public Facilities, Mr. Gaines explained that the cost of new public facilities

created for the District will be allocated to the ex isting and future residents

of the District on the basis of the benefits received. This will encourage

fiscally sound and cost ၅ effective techniques for financing public facilities.

3 2 . Finally, Subject No. 25 of the State Comprehensive Plan, Plan

Implement ation, requires that systematic planning be incorporated into all

levels of government throughout the s tate. Mr. Gaines testified that the

District is consistent with this element of the State Comprehensive Plan

because it will systematically plan for the construction, operation, and

maintenance of the public improvements and the community facilities

authorized under c hapter 190.

3 3 . Additionally , the meetings of the District Ô s board of supervisors must

be publicly advertised and will be open to the public so District property

owners and residents will have the opportunity to be involved in planning for

improvements.

3 4 . Mr. Gaines also evaluated the District for consistency with the Polk

County Comprehensive Plan and Osceola County Comprehensive Plan. He

found the establishment of the District is not inconsistent with any

applicable element or portion of these Comprehensive Plans .

3 5 . Mr. Gaines concluded the District was subject to and not inconsistent

with the local government comprehensive plan s and la nd development

regulations.

3 6 . Specifically, the District is consistent with Objective 2.205 ၅ A of the

Polk Comprehensive Plan, Housing Element, as the proposed development

has been through the required development process and received the

necessary appro vals based on Polk County standards and policies.

37 . Similarly, the District is consistent with Objective 14 ၅ 1.2 of the

Osceola Comprehensive Plan, Capital Improvements Element, because the

proposed development has been through the required development pr ocess

and has received required approvals based on Osceola County standards and

policies.

38 . Mr. Gaines Ô s testimony constitutes competent, substantial evidence

that the District is not inconsistent any applicable provision s of the State

Comprehensive Pla n, Polk Comprehensive Plan, or Osceola Comprehensive

Plan. There was no evidence to the contrary.

39 . Additionally, DEO reviewed the Petition for consistency with the s tate

and local Comprehensive Plans and indicated it could not identify any

inconsistenci es.

40 . Based on the evidence adduced at the hearing, Petitioner has

demonstrated the District will not be inconsistent with any applicable

provision of the State Comprehensive Plan, Polk County Comprehensive

Plan, or Osceola Comprehensive Plan.

S ECTION 190.005(1)( e )3. - W HETHER T HE A REA O F L AND W ITHIN T HE D ISTRICT

I S O F S UFFICIENT S IZE , I S S UFFICIENTLY C OMPACT , A ND I S S UFFICIENTLY

C ONTIGUOUS T O B E D EVELOPABLE A S O NE F UNCTIONAL I NTERRELATED

C OMMUNITY .

41 . The District includes an area of approximately 1 ,015.431 acres that

essentially straddles Polk and Osceola Count ies .

42 . According to Mr. Wrathell, the District has sufficient land area and is

sufficiently compact and contiguous to be developed, with the services

contemplated. Mr. Wrathell further testi fied that the District will operate as

one functionally interrelated community.

43 . According to Mr. Machado, the lands to be included within the District

have sufficient infrastructure needs to be developable as a functionally

interrelated community. Mr. Machado further explained that the specific

design of the community allows infrastructure to be provided in a

cost ၅ effective manner. Mr. Machado concluded that the provision of services

and facilities through the use of one development plan provides a con tiguous

and homogenous method of providing services to lands throughout the

District .

44 . The testimony of Mr. Wrathell and Mr. Machado constitute competent,

substantial evidence that the District will be of sufficient size, sufficiently

compact, and suff iciently contiguous to be developed as a single functionally

interrelated community. There was no evidence to the contrary.

45. Petitioner has demonstrated that the land to be included in the

District is of sufficient size, is sufficiently compact, and is sufficiently

contiguous to be developed as a single functionally interrelated community.

S ECTION 190.005(1)( e )4. - W HETHER T HE D ISTRICT I S T HE B EST A LTERNATIVE

A VAILABLE F OR D ELIVERING C OMMUNITY D EVELOPMENT S ERVICES A ND

F ACILITIES T O T HE A REA T HAT W ILL B E S ERVED B Y T HE D ISTRICT .

46 . Two alternatives for delivering planned facilities and services to the

District were identified: (1) by Osceola and Polk Counties utilizing special

assessments or general funds; or (2) by a developer and/or a homeowner Ô s

asso ciation.

47. According to Mr. Wrathell, both Osceola and Polk Counties have

substantial demands over broad geographical areas that place a heavy

management delivery load on their staff and budgets. The use of a

community development district will allow bot h count ies to focus staff time,

finances, and other resources elsewhere and does not burden the general

taxpayers in th ose count ies with the debt associated with the growth within

the District . Rather, this burden would be borne by the taxpayers in the

Dis trict .

48 . Regarding the second alternative, the developer does not have the

ability to effectively finance the type of improvements contemplated for the

District .

49 . Mr. Wrathell opined that the District is the best available alternative

for delivering community services and facilities to the area that will be served

by the District because the District can access the tax ၅ exempt public capital

markets and thereby fund the District Ô s proposed facilities at a lower cost

than the alternative of developer funding. He further noted that, unlike a

homeowners Ô association, the District will have the power to assess property

and c ollect those assessments along with other property taxes. Under such a

system, only residents of the area served by the District would bear the full

costs of the needed facilities and services. In other words, the residents of

Polk and Osceola C ount ies not living in the District would not be burdened

with the development of this area.

50 . Mr. Machado also testified that the District is the best available

alternative for delivering long - term operation and maintenance services.

51 . The testimony of Mr. Wrathe ll and Mr. Machado constitute competent,

substantial evidence that the District is the best alternative available for

delivering community development services and facilities to the area. There

was no evidence to the contrary.

52 . Petitioner has demonstrat ed that the District is the best alternative

available for delivering community development services and facilities to the

area.

S ECTION 190.005(1)( e )5. - W HETHER T HE C OMMUNITY D EVELOPMENT S ERVICES

A ND F ACILITIES O F T HE D ISTRICT W ILL B E I NCOMPATIBLE W ITH T HE C APACITY

A ND U SES O F E XISTING L OCAL A ND R EGIONAL C OMMUNITY D EVELOPMENT

S ERVICES A ND F ACILITIES .

53 . Mr. Wrathell opin ed that the services and facilities the District will

provide will not be incompatible with the capacit y and uses of existing local

an d regional facilities and services because there are currently no facilities or

services similar to those to be provided by the District . Therefore, there will

be no overlap or incompatibility with existing services or facilities provided

by a county or ot her entity.

54 . Similarly, Mr. Machado opined there would be no redundancies in the

services and facilities to be provided by the District with those currently

available. Mr. Machado Ô s testimony in this regard focused on infrastructure .

He testified that n one of the planned infrastructure improvements for the

District presently exist in a form that is adequate for a proposed residential

development. Mr. Machado further stated that each of the District Ô s

infrastructure improvements would connect to an existi ng county system only

after review and approval of the relevant county. Therefore, he believed there

would be no incompatibility.

55 . The testimony of Mr. Wrathell and Mr. Machado constitute competent,

substantial evidence that the community development se rvices and facilities

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

local and regional community development services and facilities. There was

no evidence to the contrary.

56. Petitioner has demonstrated that the communit y development services

and facilities of the District will not be incompatible with the capacity and

uses of existing local and regional community development services and

facilities.

S ECTION 190.005(1)( e )6. - W HETHER T HE A REA T HAT W ILL B E S ERVED B Y T HE

D ISTRICT I S A MENABLE T O S EPARATE S PECIAL - D ISTRICT G OVERNMENT .

57. Mr. Wrathell opined that the District would be amenable to a separate

special district based on two evaluation criteria: (1) whether the land area is

of sufficient size and compactness, and is sufficiently contiguous to be the

basis for a functional interrelated community; and (2) does the land area

have a need for the facilities and services.

58. With respect to the first criterion, Mr. Wrathell explained that from a

planning, economics, en gineering, and special district management

perspective, the area of land to be included in the District is of sufficient size,

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

functionally interrelated community.

59 . With regar d to the second criterion, the community that would be

served by the District Ô s facilities would need basic infrastructure systems to

be provided.

60 . Mr. Machado also stated that the District would be amenable to a

separate special district government. He testified that the District is limited

in purpose and the infrastructure improvements to be provided are limited in

scope.

61 . The testimony of Mr. Wrathell and Mr. Machado constitute competent,

substantial evidence that the area that will be served by t he District is

amenable to separate special - district government. There was no evidence to

the contrary.

62 . Petitioner has demonstrated that the District is amenable to separate

special - district government.

P UBLIC C OMMENT

63 . No members of the public atten ded the public hearing at either the

Davenport or Kissimmee locations .

64 . No written public comment was submitted to DOAH.

C ONCLUSIONS OF L AW

Based upon the record of this proceeding, it is concluded that:

65 . This proceeding is governed by chapters 120 and 190, and Florida

Administrative Code Chapter 42 - 1. Pursuant these statutes and rules, the

Commission shall consider the establishment of any community development

district that is located partially within the unincorporated area of more than

one count y.

66 . This proceeding was properly noticed by publication in newspapers of

general interest, readership, and paid circulation in Polk County and Osceola

County for a period of once a week for the four consecutive weeks

immediately prior to the public hea rings.

67. Petitioner met the requirements of section 190.005 regarding

submission of the Petition and Amended Petition and satisfaction of filing fee

requirements.

68. Petitioner bears the burden of establishing that the Amended Petition

me e t s the relevan t statutory criteria set forth in section 190.005(1)(e).

69 . All portions of the Amended Petition and other submittals were

completed and filed as required by law. All statements contained within the

Amended Petition are true and correct.

70 . The establish ment of the District is not inconsistent with any

applicable element or portion of the State Comprehensive Plan, the Polk

County Comprehensive Plan, or the Osceola C omprehensive Plan.

71 . The area of land within the District is of sufficient size, is suff iciently

compact, and is sufficiently contiguous to be developable as one functional

interrelated community.

72 . The District is the best alternative available for delivering community

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

District.

73 . The community development services and facilities of the District will

not be incompatible with the capacit y and uses of existing local and regional

community development services and facilities.

74 . The area to be served by the District is amenable to a separate special -

district government.

75 . Based on the record evidence, Petitioner has satisfied all of the

applicable statutory requirements to establish a community development

district and there is no reason not to grant the Amended Petition.

C ONCLUSION

T he Governor and Cabinet, sitting as the Florida Land and Water

Adjudicatory Commission, should formally adopt a rule to establish the

Westview South Community Development District.

D ONE A ND E NTERED this 8th day of June , 2022 , in Tallahassee, Leon

County, Florida.

S

H ETAL D ESAI

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3 060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 8th day of June , 2022 .

C OPIES F URNISHED :

Joshua Elliott Pratt, Esquire Jere Earlywine, Esquire

Executive Office of the Governor KE Law Group, PLLC

400 South Monroe Street 2016 Delta Boulevard

Tallahassee, Flo rida 32311 Suite 101

Tallahassee, Florida 32303

Barbara R. Leighty, Agency Clerk

Transportation and Economic Chris Spencer, Secretary

Development Policy Unit Florida Land and Water

The Capitol , Room 1801 Adjudicatory Commission

Tallahassee, Florida 32399 - 0001 The Capitol , Room 1802

Tallahassee, Florida 32399 - 0001

Mark A. Buckles, Esquire

Executive Office of the Governor

400 South Monroe Street

Tallahassee, Flor ida 32311