93-001490 In Re: Pelican Marsh Community Development District vs. * Status: Closed Recommended Order on Friday, September 10, 1993.

Summary: Uncontraverted evidence established that proposed community development district met criteria.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

Re: Petition of Westinghouse Communities )

of Naples, Inc. to establish a )

community development district to be ) Case No. 93-1490

known as Pelican Marsh Community )

Development District. )

___________________________________________)

HEARING OFFICER'S REPORT AND CONCLUSIONS

Pursuant to notice, the Division of Administrative Hearings, by its duly

designated Hearing Officer, William F. Quattlebaum, held a formal public hearing

in the above-styled case on June 9, 1993, in Naples, Florida.

APPEARANCES

For Petitioner: Kenza Van Assenderp, Esquire

Post Office Box 1833

Tallahassee, Florida 32302-1833

For Collier County: Richard Yovanovich, Esquire

David Bryant, Esquire

3301 Tamiami Trail East

Naples, Florida 33962-4976

STATEMENT OF THE ISSUE

Whether the petition of Westinghouse Communities of Naples, Inc., to

establish the Pelican Marsh Community Development District in Collier County,

Florida, meets the requirements of Section 190.005(1)(e), Florida Statutes.

PRELIMINARY STATEMENT

This proceeding was initiated when Westinghouse Communities of Naples,

Inc., (Westinghouse) filed a Petition with the Secretary of the Florida Land and

Water Adjudicatory Commission (FLWAC) on January 15, 1993, seeking establishment

by rule of the Pelican Marsh Community Development District (CDD) in an

unincorporated area of Collier County, Florida. The Secretary on March 12,

1993, forwarded the Petition to the Division of Administrative Hearings.

On May 3, 1993, Westinghouse filed an Amended Petition with the FLWAC

Secretary, which, on May 21, 1993, was forwarded to the Division of

Administrative Hearings.

Appropriate notice of the public hearing was published in the Naples Daily

News, a daily newspaper in Naples, Florida, and in the May 14, 1993 Florida

Administrative Weekly as required by Rule 42-1.010(1)(b), Florida Administrative

Code. A copy of such notice was served upon the Department of Community Affairs

as required by Rule 42-1.011, Florida Administrative Code.

At the public hearing, Westinghouse presented the testimony of Louis H.

Hoegsted, Thomas R. Peek, Dr. Lance deHaven-Smith, David Crawford and Gary Moyer

by deposition. Their names and addresses are attached to this Report as

Appendix "A" and a summary of their testimony is set forth herein. Thomas Peek,

Dr. Lance deHaven-Smith, David Crawford and Gary Moyer were stipulated by the

parties to be experts in their respective fields for the purposes of this

hearing only.

Westinghouse's Composite Exhibits "A" through "P" and "R" were admitted

into the record without objection. A list of the exhibits in evidence is

attached to this Report as Appendix "B".

No persons, other than Westinghouse's witnesses, testified in this cause or

entered appearances at the hearing. There is no evidence contrary to that

presented at the hearing.

Pursuant to Rule 42-1.012(3), Florida Administrative Code, the record was

kept open for twenty days after receipt of the transcript, so that any affected

or interested persons could submit written statements concerning the Amended

Petition. No such statements were filed.

This Report is submitted to the FLWAC pursuant to Sections 190.005(1)(e)

and (f), Florida Statutes, and Rule 42-1.013, Florida Administrative Code.

It is noted that the sole purpose of this proceeding is amassing the record

for the establishment of the CDD. Any other necessary permits for construction

or planning purposes are outside the scope of this proceeding.

FINDINGS OF FACT

1. On January 15, 1993, Westinghouse Communities of Naples, Inc.,

(Westinghouse) filed a Petition with the Secretary of the Florida Land and Water

Adjudicatory Commission (FLWAC), seeking establishment by rule of the Pelican

Marsh Community Development District (CDD) in an unincorporated area of Collier

County, Florida.

2. The Secretary certified that the contents of the Petition were complete

and on March 12, 1993, forwarded the Petition to the Division of Administrative

Hearings.

3. On May 3, 1993, Westinghouse filed an Amended Petition with the FLWAC

Secretary. The Amended Petition revised related provisions contained in

Paragraph 10 and Exhibit 7 of the original Petition.

4. The amendments address delivery of water, wastewater and irrigation

service within the CDD and set forth the obligations of the proposed CDD and the

Collier County Water-Sewer District related to the construction, ownership and

operation of interim and permanent facilities for such services.

5. The FLWAC Secretary determined that the contents of the Amended

Petition were complete and on May 21, 1993, forwarded the Amended Petition to

the Division of Administrative Hearings.

6. Notice of the date and location of the public hearing was published in

the Naples Daily News, a daily newspaper in Naples, Florida on May 13, 20, 27

and June 3, 1993.

7. A copy of such notice was served upon the Department of Community

Affairs as required by Rule 42-1.011, Florida Administrative Code.

8. Notice of the hearing was published by the FLWAC's Secretary in the

Florida Administrative Weekly on May 14, 1993, as required by Rule 42-

1.010(1)(b), Florida Administrative Code.

9. Westinghouse submitted a copy of the Petition to the Collier County

Board of County Commissioners ("Board") on February 26, 1993 and submitted a

copy of the Amended Petition to the Board on April 16, 1993.

10. As required by Section 190.005(1)(b)1, Florida Statutes, Westinghouse

paid the $15,000 filing fee to the Board.

11. A public hearing before the Board was held on May 4, 1993. Such

hearing is optional pursuant to Section 190.005(1)(c), Florida Statutes.

12. Upon completion of the hearing, the Board adopted Resolution No. 93-

187 through which it determined that the establishment of the CDD was in the

best interests of the county and its citizens and that the county was supportive

of the establishment of the CDD. A transcript of the county hearing was filed

with the FLWAC on May 4, 1993.

13. If approved by the FLWAC, the CDD will be an independent special

purpose local government as authorized by Chapter 190, Florida Statutes, with

power to plan, finance, construct, operate and maintain the community

infrastructure (except as to certain water and sewer services discussed

elsewhere herein) within the jurisdiction of the CDD.

14. The CDD will manage and finance basic services for the residential

community known as Pelican Marsh.

15. The 2,075 acres of the community development to be serviced by the CDD

is located north of the City of Naples within an unincorporated area of Collier

County. To the north of the CDD lies unimproved land, residential subdivisions

and Immokalee Road (County Road 846). To the east is unimproved land and the

site of a proposed extension of Livingston Road. To the south is Vanderbilt

Beach Road (County Road 862), the site of a proposed extension of Vanderbilt

Beach Road, and Pine Ridge subdivision. To the west is North Tamiami Trail

(U.S. Highway 41).

16. The land within the proposed CDD is currently zoned as "Urban

Residential", "Activity Center" and "Proposed Activity Center". Westinghouse

has entered into the record, as Exhibit "C", an Application for Public Hearing

for Rezone and Conditional Use Requests and a draft Planned Unit Development

document for a portion of the community consisting of approximately 1086.5

acres. The draft Planned Unit Development document authorizes a mixture of land

uses, including single and multi-family housing, limited to 780 dwelling units

and a 27-hole golf course with clubhouses.

17. Westinghouse has acknowledged in its Amended Petition that the Collier

County Water-Sewer District is the permanent supplier of all water, wastewater

and irrigation service in the CDD and that the CDD shall be obligated to convey

all water, sewer and irrigation facilities to the County and its Water-Sewer

District upon completion.

18. Westinghouse also acknowledges certain rights and obligations of the

CDD with respect to the construction and operation of interim water, wastewater

and irrigation facilities. The cost of such facilities will be borne by the CDD

through various types of financing mechanisms. Only those persons who receive

the benefit of the services will pay the costs involved in provision of the

facilities.

Summarization of Testimony and Evidence

19. Mr. Louis H. Hoegsted is Executive Vice President of Westinghouse

Communities of Naples, Inc., the corporation that filed the Petition and Amended

Petition in this matter. Mr. Hoegsted has general responsibility for planning

the Pelican Marsh community, including the filing of the petitions.

20. Westinghouse, a Florida corporation, has developed the community of

Pelican Bay in Collier County, Florida. Mr. Hoegsted was involved as the

company representative in the formation and operation of the former Pelican Bay

Improvement District, created by special act of the Florida Legislature.

Pelican Bay was merged by Collier County into the County Water-Sewer District.

21. Mr. Hoegsted identified Westinghouse's Composite Hearing Exhibits "A"

through "R". All of the below-described documents were prepared under the

supervision of Mr. Hoegsted. The exhibits identified by Mr. Hoegsted are as

follows:

Composite Exhibit "A" includes four exhibits

numbered "A-1" through "A-4". Exhibit "A-1"

is a General Location Map, which identifies

the site of the proposed CDD. Exhibit "A-2"

is a Boundary Map of the area to be served by

the CDD. Exhibit "A- 3" is a Boundary Map of

the land area included within the jurisdiction

of the CDD. Exhibit "A-4" is a copy of the

Collier County Comprehensive Plan Map, as

amended June, 1993.

Exhibit "B" is the Preliminary Development

Agreement of May 20, 1993 executed between

the Florida Department of Community Affairs

and Westinghouse.

Exhibit "C" is a copy of a draft Planned Unit

Development document which upon adoption would

establish the zoning for a portion of the

proposed development.

Composite Exhibit "D" is made up of 12

separate exhibits identified as Exhibits

"D-1" through "D-9" with subparts. Exhibit

"D-1" is the Petition filed with the FLWAC

in this case. Exhibit "D-2" is a map showing

the location of the land area to be serviced

by the CDD. Exhibit "D-3" is a metes and

bounds description of the CDD. Exhibit "D-4"

is composed of the written consent of

Westinghouse Communities of Naples, Inc. and

the Manatee Fruit Company, as owners of land

within the CDD. (Also filed as Exhibit "R-1"

is an additional consent of the remaining

land owners within the CDD.) Exhibit "D-5"

(including subparts a-c) is composed of

drawings showing the Collier County waste

water service system, potable water service

system and the drainage outfalls. Exhibit

"D-6" is the proposed schedule and cost

estimates for construction of CDD

infrastructure. Exhibit "D-7a" is a copy

of the Collier County Comprehensive Plan

Future Land Use Map. Exhibit "D-7b" is a

copy of the Department of Community Affairs

compliance letter related to the Collier

County Comprehensive Plan, as amended.

Exhibit "D-8" is an acknowledgment by

Westinghouse that Collier County is

authorized to regulate the provision of water

and sewer facilities within the CDD. Exhibit

"D-9" is a Statement of Economic Impact for

the CDD by Fishkind & Associates, Inc.

Composite Exhibit "E" consists of 12 exhibits

identified as "E-1" through "E-9" including

subparts. Composite Exhibit "E-1" includes

the Amended Petition filed with the FLWAC in

this case. Exhibit "E-2" is a map showing

the location of the land area to be serviced

by the CDD. Exhibit "E-3" is a metes and

bounds description of the CDD. Exhibit "E-4"

is composed of the written consent of

Westinghouse Communities of Naples, Inc. and

the Manatee Fruit Company, as owners of land

within the CDD. Exhibit "E-5" (including

subparts a-c) is composed of drawings showing

the Collier County waste water service system,

potable water service system and the drainage

outfalls. Exhibit "E-6" is the proposed

schedule and cost estimates for construction

of CDD infrastructure. Exhibit "E-7a" is a

copy of the Collier County Comprehensive Plan

Future Land Use Map. Exhibit "E-7b" is a

copy of the Department of Community Affairs

compliance letter related to the Collier

County Comprehensive Plan, as amended.

Exhibit "E-8" is an acknowledgment by

Westinghouse that Collier County is

authorized to regulate the provision of water

and sewer facilities within the CDD.

Exhibit "E-9" is a Statement of Economic

Impact for the CDD by Fishkind &

Associates, Inc.

Composite Exhibit "F" includes four items.

Exhibit "F-1" is the prehearing stipulation

filed in this case. Exhibit "F-2" is a

Memorandum of Agreement between Westinghouse

and Collier County related to the provision of

water, wastewater and irrigation facilities

and services within the proposed CDD.

Exhibit "F-2a" is a draft copy of an

interlocal agreement related to the provision

of water, wastewater and irrigation facilities

and services within the proposed CDD. Exhibit

"F-2b" is a copy of Collier County Resolution

No. 93-187 indicating that the Board of County

Commissioners supports the establishment of

the CDD.

Composite Exhibit "G" consists of two items:

Exhibit "G-1", a Westinghouse letter dated

February 26, 1993 submitting the Petition to

Collier County; and Exhibit "G-2", a

Westinghouse letter dated April 16, 1993

submitting the Amended Petition to Collier

County.

Exhibit "H" is a photocopy of the $15,000

check from Westinghouse to Collier County

constituting the filing and processing fee.

Composite Exhibit "I" includes Exhibit "I-1",

a letter dated February 26, 1993 transmitting

the Petition to David Coburn of the FLWAC,

and Exhibit "I-2" a letter dated May 3, 1993,

transmitting the Amended Petition to Mr.

Coburn.

Composite Exhibit "J" includes four exhibits.

Exhibit "J-1" is Mr. Coburn's letter of

notification dated March 12, 1993 to the

Florida Department of Community Affairs (DCA)

transmitting the Petition for DCA review.

Exhibit "J-2" is Mr. Coburn's letter of

notification dated March 15, 1993 to the

Southwest Florida Regional Planning Council

(SWFRPC) transmitting the Petition for SWFRPC

review. Exhibit "J-3" is Mr. Coburn's letter

of notification dated May 5, 1993 to the DCA

transmitting the Amended Petition for review.

Exhibit "J-4" is Mr. Coburn's letter of

notification dated May 5, 1993 to the SWFRPC

transmitting the Amended Petition for review.

Composite Exhibit "K" consists of two

exhibits, "K-1" and "K-2", both letters from

Mr. Coburn to the Florida Division of

Administrative Hearings transmitting the

Petition and Amended Petition, dated March

12 and May 21, 1993, respectively.

Composite Exhibit "L" includes six exhibits.

Exhibit "L-1" is a certified copy of the

notice of publication of receipt of Petition

and notice of hearing as published in the

Florida Administrative Weekly. Exhibits

"L-2" through "L-6" are the tear sheets from

the Naples Daily News setting forth notice of

the hearing held in this case.

Exhibit "M" consists of excerpts from the

Collier County Comprehensive Plan. The

complete official copy of the Collier County

Comprehensive Plan was filed with the Hearing

Officer prior to the hearing and is

transmitted with the record established

during the hearing.

Exhibit "N" is a letter from the Florida

Department of Community Affairs to Collier

County stating that the DCA had determined

that the relevant Comprehensive Plan Amendment

was in compliance with state law.

Exhibit "O" is a copy of the State

Comprehensive Plan for the State of Florida

appearing in Chapter 187, Florida Statutes.

Exhibit "P" consists of a white paper dated

March, 1993 and prepared by Dr. Lance

deHaven-Smith, a political economist. The

report addresses growth management

considerations and the proposed establishment

of the Pelican Marsh CDD.

Composite Exhibit "R" consists of two parts.

Exhibit "R-1" is an additional consent of

the remaining land owners within the CDD.

(Exhibit D-4 contains the originally filed

consent documents.) Exhibit "R-2" is an

updated estimate of proposed infrastructure

construction costs and deadlines.

22. As Executive Vice President of Westinghouse Communities of Naples,

Inc., Mr. Hoegsted directed the planning and preparation of the Petition and

Amended Petition filed in this matter. The consultants who reviewed the project

on behalf of Westinghouse were directed to assume that the CDD would provide all

services and facilities which it was able to provide under Sections 190.011 and

190.012, Florida Statutes, with the exception of the County's provision of

water, wastewater and irrigation services and facilities. (As addressed

elsewhere herein, the County Water and Sewer District is to be the sole provider

of water, wastewater and irrigation water within the Water-Sewer District

boundaries in accordance with Collier County Ordinance Nos. 78-10, 79-33, 88-76,

90-86 and 90-87.)

23. The consultants were directed to consider the factors enumerated in

Subsection 190.005(1)(e), Florida Statutes. Based upon review of their

analysis, Mr. Hoegsted asserts that all statutory criteria have been satisfied.

There is no evidence to the contrary.

24. The Statement of Economic Impact prepared for the CDD by Fishkind &

Associates, Inc., includes an analysis of economic costs and benefits to all

persons directly affected by the Petition, estimates the impact of the CDD on

competition in the open market and describes the source of information and

methodology used in preparing the statement. According to the statement, the

creation of the CDD will not constitute a significant burden to either the State

of Florida or Collier County. There is no evidence contrary to that contained

within the Fishkind report.

25. Thomas R. Peek is a professional engineer with Wilson, Miller, Barton

and Peek, Inc., an engineering consulting firm located in Naples, Florida. Mr.

Peek was accepted as an expert in civil engineering related to provision of

infrastructure development in Southwest Florida communities.

26. Mr. Peek is familiar with the CDD and with the status of the

development approvals and related land development permits and approvals from

local and state authorities for the Pelican Marsh community. He is

knowledgeable as to the steps involved in engineering basic systems, facilities

and services for community developments. He opined that there is a high

probability for quality long term infrastructure maintenance by an independent

special district government.

27. Mr. Peek testified that he had reviewed the Amended Petition and

attachments and that they contained no information inconsistent with engineering

considerations raised by the state or the Collier County Comprehensive Plans.

28. It is anticipated that the CDD will be requested to provide water

management, utilities, roads, landscaping and street lighting. Mr. Peek is

unable to predict whether the CDD will be asked to exercise any additional

powers pursuant to Section 190.012(2), Florida Statutes. Such additional powers

relate to certain public improvements and community facilities as parks, fire

prevention, schools, security, and mosquito control.

29. Mr. Peek opined that the land within the proposed CDD is of sufficient

size, compactness and contiguity to be developable as one functionally

interrelated community and is amenable for a CDD, that there are no land

features or facilities which could make the benefits of the CDD difficult to

provide, and that the CDD will not be inconsistent with the Collier County local

government comprehensive plan.

30. There is no evidence contrary to that provided by Mr. Peek. His

testimony is accepted.

31. Dr. Lance deHaven-Smith is a political science professor and provost

of the Broward County campus of Florida Atlantic University. He was accepted as

an expert in political science and in alternative ways to provide community

infrastructure.

32. Dr. deHaven-Smith reviewed the Petition from a general infrastructure

and growth management policy perspective. He further addressed the relevant

statutory criteria. Based on his review he prepared a report, "Growth

Management Considerations in the Proposed Establishment of the Pelican Marsh

Community Development District". The report is identified as Westinghouse

Exhibits "D-9" and "E-9".

33. According to Dr. deHaven-Smith, Collier County has experienced

substantial growth in recent years, requiring a rapid expansion in

infrastructure for transportation, water, waste water treatment, law

enforcement, recreation, and many other services. Community development

districts play an important role in growth management by facilitating large

scale, high quality development and relieving local governments of the burden of

paying for and managing many of the services and public works that such

developments require.

34. According to Dr. deHaven-Smith, to the extent that there are

weaknesses in the state's growth management system, community development

districts provide a means of appropriate controlled development. Even though

the state has adopted a state comprehensive plan, the need for CDDs exists,

especially in areas such as Collier County where growth is at a rate twice that

of other Florida communities. Accordingly, Dr. deHaven-Smith opined that the

CDD is a good tool in the growth management process.

35. Dr. deHaven-Smith described the manner in which the CDD would operate

and carry out the powers prescribed in the development order for Pelican Marsh

District. He opined that, relative to the alternatives for providing the

infrastructure necessary for the Pelican Marsh community, the CDD mechanism is

the most appropriate alternative.

36. He further noted that although the CDD has a range of specific and

general powers, it is controlled by substantive and procedural limitations and

would be subservient to Collier County.

37. Dr. deHaven-Smith reviewed the statutory factors and related

information that must be considered in order to establish a CDD. He opined that

all statements within the petitions are true and correct, that the creation and

establishment of the CDD is not inconsistent with applicable portions of the

state and local comprehensive plans, that the area of land within the CDD is of

sufficient size, is sufficiently compact, and is sufficiently contiguous to be

developable as one functional interrelated community, that the CDD is the best

alternative for delivering community development services and facilities, that

the services and facilities are compatible with the capacity and uses of

existing local and regional community development services and facilities, and

that the area to be served is amenable to separate special-district services and

facilities. There is no evidence contrary to the witness' testimony which is

hereby accepted.

38. David Crawford is Director of Planning and Governmental Relations with

Westinghouse Bayside Communities, Inc. He has 15 years experience in the

planning of infrastructure provision for community development and has been

involved in the preparation of comprehensive plans for several Florida counties.

39. He testified as to the permitting and development approval status of

the Pelican Marsh community and the physical characteristics and situations to

be found within the area of the proposed CDD, including two existing roadways, a

drainage canal, an outfall and various utilities which cross the property.

40. Mr. Crawford described the state comprehensive plan and how the

establishment of the CDD would be consistent with and facilitate certain

enumerated policies in the plan. Mr. Crawford stated that the CDD will not be

inconsistent with the Collier County Comprehensive Plan. With respect to state

concurrency requirements, Mr. Crawford asserted that the CDD is the best method

to provide sustained infrastructure to a community.

41. Mr. Crawford stated that the CDD is a responsive, efficient, timely

and economic means of providing services to a community's future population

without over-burdening the existing residents. He asserted that the land within

the CDD is of sufficient size, compactness and contiguity to be developable as

one functionally interrelated community and that the land area in the CDD is

amenable to separate special-district government. According to Mr. Crawford,

the establishment of the CDD will not create any incompatibility with the

existence of any regional systems, services or facilities.

42. In Mr. Crawford's opinion, the establishment of the CDD will not

overburden the Collier County government with respect to providing maintenance

over the long-term infrastructure to the proposed development nor overburden the

taxpayers of Collier County. Furthermore, he opined that the CDD will not be a

needless or unacceptable proliferation of local government in view of the six

factors required to be considered for its establishment under Chapter 190.

43. Mr. Crawford testified that it is not premature to establish the CDD

before issuance of the final development order under Section 380.06, Florida

Statutes. Because infrastructure construction activities require construction

permitting from the county, it is unlikely that the CDD would construct

infrastructure inconsistent with the eventual development order to be issued by

the county.

44. There is no evidence contrary to the testimony of Mr. Crawford and it

is accepted.

45. Gary L. Moyer serves as district manager for twenty-three community

development districts throughout the state. As a district manager, he

coordinates the planning, financing, construction, operation, and maintenance of

infrastructure provided to new community developments. Mr. Moyer was accepted

as an expert in district management and government.

46. Mr. Moyer reviewed the factors used in FLWAC's determination regarding

whether the petition should be approved. He concluded that all criteria were

satisfied. Within the context of his expertise, Mr. Moyer opined that all

statements in the Amended Petition to be true and correct, that the CDD is

compatible with all state and local comprehensive plans, that the land area of

the CDD is of sufficient size and compactness and is sufficiently contiguous to

be developable as one functional interrelated community, that the CDD is the

best alternative for delivering the proposed services and facilities to the

development, that the CDD is not incompatible with the capacity and uses of

existing local and regional community development services and facilities, and

that the area to be served is amenable to separate special-district government.

47. Mr. Moyer noted that the CDD will be subject to the same checks,

balances and accountability as other general purpose governmental entities. The

CDD Board of Supervisors is governed by state ethics laws, "Government in the

Sunshine," public records law and statutes related to accountability of public

officials. Mr. Moyer noted that, once established, the CDD becomes a "partner"

with local government in achieving the goals and objectives of the community.

48. Mr. Moyer stated that the operations of the CDD must be in accordance

with local government's comprehensive plan and construction standards. He

further noted that the CDD must supply planning documents to the local

government to ensure consistency with the local comprehensive plan.

49. There being no evidence to the contrary, Mr. Moyer's testimony is

accepted as being credible on these issues.

CONCLUSIONS

50. Having considered the entire record in this cause, and without

evidence to the contrary, it is concluded that:

51. All statements contained within the Petition have been found to be

true and correct. Section 190.005(1)(e)1., Florida Statutes.

52. The creation and establishment of the CDD is consistent with

applicable elements or portions of the state comprehensive plan and the Collier

County comprehensive plan, as amended. Section 190.005(1)(e)2., Florida

Statutes.

53. The area of land within the CDD is of sufficient size, is sufficiently

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

interrelated community. Section 190.005(1)(e)3., Florida Statutes.

54. The CDD, in accordance with applicable state and local law and the

Memorandum of Agreement executed by Westinghouse and Collier County, is the best

alternative available for delivering community development services and

facilities to the area that will be served by the CDD. Section 190.005(1)(e)4.,

Florida Statutes.

55. In accordance with applicable state and local law and the Memorandum

of Agreement executed by Westinghouse and Collier County, the community

development services and facilities of the CDD will be compatible with the

capacity and uses of existing local and regional community development services

and facilities. Section 190.005(1)(e)5., Florida Statutes.

56. The 2,075 acre tract of land that will be served by the CDD is

amenable to separate special-district government, in accordance with the

provisions of Chapter 190, Florida Statutes, and the Memorandum of Agreement

between Westinghouse and Collier County. Section 190.005(1)(e)6., Florida

Statutes.

DONE and ISSUED this 10th day of September, 1993, in Tallahassee, Florida.

__________________________________

WILLIAM F. QUATTLEBAUM

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 10th day of September, 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-1490

APPENDIX "A"

NAMES AND ADDRESSES OF WITNESSES

1. Louis H. Hoegsted

Westinghouse Communities of Naples, Inc.

801 Laurel Oak Drive, Suite 500

Naples, Florida 33963

2. Thomas R. Peek

Wilson, Miller, Barton & Peek

3200 Bailey Lane at Airport Road

Naples, Florida 33942

3. Dr. Lance deHaven-Smith

5935 North West 96 Drive

Parkland, Florida 33076

4. David Crawford

Westinghouse Bayside Communities

9200-101 Bonita Beach Road, South West

Bonita Springs, Florida 33923

5. Gary Moyer

10300 North West 11 Manor

Coral Springs, Florida 33071

APPENDIX "B"

LIST OF DOCUMENTARY EVIDENCE

Composite Exhibit "A"

Exhibit "A-1" is a large General Location Map, which outlines the general

location of the proposed Pelican Marsh community within Collier County.

Exhibit "A-2" is a Boundary Map of the development to be served by the CDD.

Exhibit "A-3" is a Boundary Map of the land area to be included within the

jurisdiction of the CDD.

Exhibit "A-4" is a copy of the Collier County Comprehensive Plan Map, as

amended June, 1993.

Exhibit "B"

Exhibit "B" is the Preliminary Development Agreement, dated May 20, 1993

between the Florida Department of Community Affairs and Westinghouse.

Exhibit "C"

Exhibit "C" is a draft of Planned Unit Development document which may

establish the zoning for a portion of the proposed development.

Composite Exhibit "D"

Exhibit "D- 1" is the Petition filed with the FLWAC.

Exhibit "D-2" is a map showing the location of the land area to be served

by the CDD.

Exhibit "D-3" is a metes and bounds description of the CDD.

Exhibit "D-4" is composed of the written consent of Westinghouse

Communities of Naples, Inc. and the Manatee Fruit Company, as owners of land

within the CDD. (Exhibit "R-1" is the additional consent of the remaining land

owners within the CDD.)

Exhibit "D-5" is composed of drawings showing the Collier County waste

water service system, potable water service system and the drainage outfalls.

Exhibit "D-6" is a proposed schedule of the deadlines and cost estimates to

construct CDD infrastructure.

Exhibit "D-7" is a copy of the Collier County Comprehensive Plan Future

Land Use Map.

Exhibit "D-7b" is a copy of the Department of Community Affairs compliance

letter related to the Collier County Comprehensive Plan, as amended.

Exhibit "D-8" is an acknowledgment by Westinghouse that Collier County is

authorized to regulate the provision of water and sewer facilities within the

CDD.

Exhibit "D-9" is a Statement of Economic Impact for the District by

Fishkind & Associates, Inc.

Composite Exhibit "E"

Exhibit "E-1" is the Amended Petition.

Exhibits "E-2" through "E-9" are identical to Exhibits "D-2" through "D-9"

except for a minor change to the Acknowledgement in Exhibit "E-8".

Composite Exhibit "F"

Exhibit "F-1" is the Prehearing Stipulation signed by Collier County and

Westinghouse with attachments and filed in this case.

Exhibit "F-2" is a Memorandum of Agreement between Westinghouse and Collier

County related to the provision of water, wastewater and irrigation facilities

and services within the proposed CDD.

Exhibit "F-2a" is a draft copy of an interlocal agreement related to the

provision of water, wastewater and irrigation facilities and services within the

proposed CDD.

Exhibit "F-2b" is Resolution No. 93-187 of Collier County indicating that

the Board of County Commissioners supports the establishment of the CDD.

Composite Exhibit "G"

Exhibit "G-1" is a letter from Westinghouse to Collier County, dated

February 26, 1993, submitting the Petition to the county.

Exhibit "G-2" is a letter from Westinghouse to Collier County, dated April

16, 1993, submitting the Amended Petition to the county.

Exhibit "H"

Exhibit "H" is a photocopy of the $15,000 check constituting the filing and

processing fee from Westinghouse to Collier County.

Composite Exhibit "I"

Exhibit "I-1" is a transmittal letter from Attorney Kenza van Assenderp to

David Coburn of the Florida Land and Water Adjudicatory Commission dated

February 26, 1993 which accompanied the Petition.

Exhibit "I-2" is a transmittal letter from Attorney Kenza van Assenderp to

David Coburn of the Florida Land and Water Adjudicatory Commission dated May 3,

1993 which accompanied the Amended Petition.

Composite Exhibit "J"

Composite Exhibit "J" consists of four letters of notification from David

Coburn, Secretary of the Florida Land and Water Adjudicatory Commission to the

Florida Department of Community Affairs and the Southwest Regional Planning

Council transmitting the Petition and Amended Petition.

Composite Exhibit "K"

Exhibit "K-1" is a letter dated March 12, 1993 from David Coburn to the

Florida Division of Administrative Hearings transmitting the Petition.

Exhibit "K-2" is a letter dated May 21, 1993 from David Coburn to the

Florida Division of Administrative Hearings transmitting the Amended Petition.

Composite Exhibit "L"

Exhibit "L-1" is a certified copy of the notice of publication of receipt

of Petition and notice of hearing as published in the Florida Administrative

Weekly.

Exhibits "L-2" through "L-6" are the tear sheets from the Naples Daily News

setting forth notice of the hearing held in this case.

Exhibit "M"

Exhibit "M" consists of excerpts from the Collier County Comprehensive

Plan. The complete official copy of the Collier County Comprehensive Plan was

in the possession of the Hearing Officer at the time of the hearing and is

transmitted with the record established during the hearing.

Exhibit "N"

Exhibit "N" is a letter from the Florida Department of Community Affairs to

Collier County wherein notice was given of its determination that the

Comprehensive Plan Amendment was in compliance with state law.

Exhibit "O"

Exhibit "O" is a copy of the State Comprehensive Plan for the State of

Florida appearing in Chapter 187, Florida Statutes.

Exhibit "P"

Exhibit "P" is a March, 1993 report prepared by Dr. Lance deHaven-Smith

regarding growth management considerations and the proposed establishment of the

Pelican Marsh Community Development District.

Exhibit "R"

Exhibit "R-1" is an additional consent of the remaining land owners within

the CDD. (Exhibit D-4 contains the originally filed consent documents.)

Exhibit "R-2" is an updated estimate of proposed infrastructure construction

costs and deadlines.

COPIES FURNISHED:

David K. Coburn, Secretary

Florida Land & Water Adjudicatory Commission

311 Carlton Building

Tallahassee, Florida 32301

Kenza Van Assenderp, Esquire

Post Office Box 1833

Tallahassee, Florida 32302-1833

Richard D. Yovanovich, Esquire

3301 Tamiami Trail East

Naples, Florida 33962-4976