98-004159 The Crossings At Fleming Island Community Development District vs. Florida Land And Water Adjudicatory Commission And Monroe County Status: Closed Recommended Order on Tuesday, December 22, 1998.

Summary: All elements are met. Extension of boundaries is recommended.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

)

IN RE: Petition for Rule Amendment: )

The Crossings at Fleming Island ) Case No. 98-4159

Community Development District. )

)

________________________________________)

RECOMMENDED ORDER

On Tuesday, November 24, 1998, the local public hearing in

this proceeding was held before Administrative Law Judge Don W.

Davis of the State of Florida Division of Administrative

Hearings. The hearing was held at the City of Orange Park, Town

Hall, Commission Chambers, 2042 Park Avenue, Orange Park, Florida

32073.

The hearing was conducted pursuant to Sections 190.046 and

190.005, Florida Statutes, for the purpose of taking testimony

and public comment and receiving exhibits on the petition of The

Crossings at Fleming Island Community Development District

(hereinafter "Petitioner" or "District") to amend the boundaries

of the District.

This report is prepared and submitted to the Florida Land

and Water Adjudicatory Commission ("Commission") pursuant to

Section 190.046, Florida Statutes.

STATEMENT OF THE ISSUE

The sole issue to be addressed is whether the amendment of

the boundaries of The Crossings at Fleming Island Community

Development District meets the applicable criteria set forth in

Chapter 190, Florida Statutes, and Chapter 42-1, Florida

Administrative Code.

APPEARANCES

Petitioner: Jonathan T. Johnson, Esquire

Hopping, Green, Sams and Smith, P.A.

Post Office Box 6526

Tallahassee, Florida 32314

PRELIMINARY STATEMENT

The Petitioner filed the petition to amend the boundaries of

the District with the Secretary of the Commission on September 4,

1998. Previously, the Petitioner delivered a copy of the

petition and exhibits, together with a filing fee, to Clay

County. A copy of the petition, including its attached exhibits,

was received into evidence as Petitioner's Composite Exhibit A.

On September 18, 1998, the Secretary of the Commission

certified that the petition contained all required elements and

forwarded it to the Division of Administrative Hearings for the

purpose of holding the public hearing required under Chapter 190,

Florida Statutes. The Commission published a notice of receipt

of petition in the Florida Administrative Weekly on October 23,

1998. A copy of the notice of receipt of petition was received

into evidence as Petitioner's Exhibit B.

The local public hearing was scheduled in Clay County,

Florida, for Tuesday, November 24, 1998. The Petitioner

published notice of the hearing in accordance with Section

190.005(1)(d), Florida Statutes. The Petitioner also pre-filed

the prepared written testimony of three witnesses, together with

attached exhibits, on November 19, 1998.

Section 190.046(1)(d)3., Florida Statutes, provides that a

local government has the option to hold a public hearing within

45 days of the filing of a petition. The Board of County

Commissioners of Clay County (the "County") did not hold a public

hearing on the petition.

At the local public hearing on November 24, 1998, the

Petitioner presented the testimony of Ronald E. Kolar, an expert

in the design, permitting, cost estimation, and construction of

public infrastructure; Dr. Henry A. Fishkind, President of the

firm of Fishkind and Associates, and an expert in economic

development and analysis; and Gary R. Walters, President of Gary

Walters and Associates, a community planning and management

consulting firm and an expert in land use, comprehensive

planning, and special district operations and management. Their

full names and addresses are attached to this report as Exhibit

1. The Petitioner offered Petitioner's Exhibits A through E,

which were received into evidence at the hearing. A list of

Petitioner's exhibits in this proceeding is attached to this

report as Exhibit 2.

No other persons or entity presented any witnesses or

exhibits. No other public comment was received.

A transcript of the local public hearing was prepared and

received by the Petitioner. A copy of the transcript is being

transmitted with this Report of Findings and Conclusions.

Overview

1. The Petitioner is seeking the adoption of a rule by the

Commission to amend the boundaries of a community development

district currently consisting of approximately 2,801 acres

located entirely within Clay County. It is located generally

northwest, southwest, and southeast of the intersection of U.S.

17 and C.R. 220 on Fleming Island. The Petitioner is seeking to

add approximately 46 acres to the District. After expansion, the

District will consist of approximately 2,847 acres.

2. Currently the lands to be included within the amended

boundaries of the District are designated as Planned Community

under the Future Land Use Element of the Clay County

Comprehensive Plan. Neighboring lands are also categorized as

Planned Community or Rural Fringe.

3. There are no new parcels within the external boundaries

of the proposed amended District that are to be excluded from the

District.

4. The Petitioner currently intends for the District to

participate in the acquisition or construction of certain road

and drainage improvements, potable water distribution, wastewater

collection systems, and reclaimed water systems for the lands to

be added to the District. Capital costs of these improvements

will be borne by the District. Once completed, the road

improvements will be dedicated to the County and the ownership

and operation of these improvements will become the

responsibility of the County. The master surface water

management system and drainage improvements for the lands to be

added to the District will be constructed, owned and operated by

the District. The water, sewer and reuse improvements will be

constructed and owned by the District and operated by Clay

County.

5. The estimated cost for all i dentified capital

improvements is $3,438,000 with construction scheduled to take

place from 1999 through 2002. Actual construction costs and

timetables may vary for a variety of reasons, including final

design and permitting criteria, and future changes in economic

conditions upon labor, services, materials, interest and general

market circumstances. These cost estimates are reasonable.

6. The Petitioner expects that the District will finance

such services and improvements through the use of long-term loans

or through issuance of tax exempt bonds. The debt issued by the

District is expected to be retired by non-ad valorem or special

assessments on benefited property within the District or by the

imposition of other rates, fees or charges. The Petitioner has

no current plans to issue general obligation bonds or to impose

ad valorem taxes.

7. The sole purpose of this proceeding was to consider the

amendment of the boundaries of the District as proposed by the

Petitioner.

Summary of Evidence and Testimony

A. Whether all statements contained within the petition

have been found to be true and correct.

8. Petitioner's Composite Exhibit A was identified for the

record as a copy of the petition and its attachments as filed

with the Commission. Witnesses Walters, Kolar and Fishkind each

stated that he had reviewed the contents of and exhibits to the

petition and approved its findings, then generally described

certain of the attachments.

9. Witness Kolar testified that consents by the owners of

the land within the proposed amended District were true and

correct as shown in the petition, which petition indicated that

the Petitioner either owns or has written consent to amend the

District from the owners of one hundred percent of the real

property located within the lands to be added to the District.

10. The petition and its attached exhibits are true and

correct.

B. Whether the amendment of the district is inconsistent

with any applicable element or portion of the State

Comprehensive Plan or of the effective local government

comprehensive plan.

11. Witnesses Walters and Fishkind reviewed the proposed

amendment of the District in light of the requirements of the

State Comprehensive Plan, Chapter 187, Florida Statutes, and the

Clay County Comprehensive Plan, adopted pursuant to Chapter 163,

Part II, Florida Statutes ("Local Comprehensive Plan").

12. Each witness concluded that the amendment of the

District would not be inconsistent with any relevant or material

portion or element of the Local Comprehensive Plan.

State Comprehensive Plan

13. From a planning perspective, three goals of the State

Comprehensive Plan, and policies supporting those goals, apply

directly to the District. From an economic perspective, two

goals and policies supporting those goals apply directly to the

District.

14. Goal 16, Land Use, recognizes the importance of

locating development in areas with the fiscal ability and service

capacity to accommodate growth. From a planning perspective, the

amended District will have the fiscal capacity to provide a wide

range of services and facilities to a population in a designated

growth area lying within the County.

15. Goal 18, Public Facilities, provides that the state

shall protect substantial investments in public facilities and

plan for and finance new facilities to serve residents in a

timely, orderly and efficient manner. From planning and

economics perspectives, the amended District will provide certain

designated improvements and services in a cost efficient manner.

These actions allow local government resources to be focused on

the public facilities needs outside of the District and so

contribute to the timely, orderly and efficient provision of

services to all County residents. The District, as amended, will

continue to plan and finance infrastructure facilities for the

lands within the District.

16. Goal 26, Plan Implementation, provides that systematic

planning shall be integrated into all levels of government, with

emphasis on intergovernmental coordination. From a planning

perspective, all District board meetings will be publicly noticed

and open to the public; therefore, all citizens and residents of

the District, including the amended portion of the District, may

participate. In addition, Section 189.415, Florida Statutes,

requires the District to file annual public facilities reports

with the County which the County may use and rely on in any

revisions to the Local Comprehensive Plan.

17. Goal 21, Governmental Efficiency, provides that

governments shall economically and efficiently provide the amount

and quality of services required by the public. From an economic

perspective, the amended District would finance and deliver

quality public services and facilities at a level demanded by

residents and property owners of the District who directly

benefit and pay for those services and facilities.

18. Based on the testimony and exhibits in the record, the

amended District would not be inconsistent with any applicable

element or portion of the State Comprehensive Plan.

Local Comprehensive Plan

19. From a planning perspective, the Future Land Use

Element and Map, the Capital Improvement Element, and the

Intergovernmental Coordination Element of the Local Comprehensive

Plan apply directly to the District.

20. The Future Land Use Element Land Use Goal and

Objectives are targeted to effectively manage growth in areas

designated to accommodate future development and provide services

in a cost efficient manner. The District is within the County's

Planned Urban Service Area, and is part of a Chapter 380, Florida

Statutes, development order vested on the County Land Use Plan.

The District is the recognized vehicle to provide the necessary

services and facilities to this area, including the new area to

be added to the District.

21. The Intergovernmental Coordination Element seeks to

establish processes among the various governmental, public, and

private entities to achieve including coordination of all

development activities, preservation of the quality of life, and

the efficient use of available resources. The amended District

will continue to be a vital link in this coordination process and

will provide and maintain community infrastructure undertaking

activities that are coordinated with and are not inconsistent

with plans and activities of related public and private agencies.

22. The Capital Improvements Element is intended to provide

necessary infrastructure in a timely and orderly manner. The

amended District will expand the areas that enjoy the high

quality infrastructure developed by the District in a manner

consistent with the Clay County Comprehensive Plan.

23. Since Chapter 190, Florida Statutes, prohibits any

community development district from acting in a way inconsistent

with the local government's comprehensive plan, the exercising of

any power must be done with the comprehensive plan in mind.

Construction activities of the District, as amended, may require

County permitting review under established procedures.

Therefore, the use of those powers granted to the District does

not make it inconsistent with the Clay County Comprehensive Plan.

24. Based on the evidence in this record, the amended

District would not be inconsistent with any applicable element or

portion of the Local Comprehensive Plan.

C. Whether the area of land within the amended district is

of sufficient size, is sufficiently compact, and is

sufficiently contiguous to be developable as one functional

interrelated community.

25. Testimony on this criterion was prov ided by witnesses

Kolar, Walters and Fishkind.

26. All of the land in the amended District is part of a

planned community included in The Crossings at Fleming Island

Development of Regional Impact (the "DRI").

27. There are no new parcels of land within the external

boundaries of the amended District which are excluded from the

District.

28. Functional interrelation means that each community

purpose has a mutual reinforcing relationship with each of the

community's other purposes. Each function must be designed to

contribute to the development or maintenance of the larger whole.

Each function requires a management capability, funding source,

and an understanding of the size of the community's needs so as

to handle the growth and development of the community.

29. The size of the District as amended is approximately

2,847 acres. From a planning perspective, this is a sufficient

size to accommodate roads, drainage, water, sewer, reuse and

other basic facilities and services typical of a functionally

interrelated community. With adequate planning, design,

financing, construction and maintenance, provision of these

facilities and services will contribute to the development of a

functional interrelated community.

30. Compactness relates to the location in distance between

the lands and land uses within a community. From a planning

perspective, the property that comprises this community is

compact because all of the property is part of or adjacent to a

single project, is close together, and has no physical barriers

segregating one portion of the project from any of the others.

31. Contiguity has to do with whether all parts of the

project are touching along a boundary or point. From a planning

perspective, the property is sufficiently contiguous when all

parts of a project are either in actual contact or are close

enough to allow the efficient design and use of infrastructure.

The land need not be physically connected in order to be

functionally connected, especially when planning specialized

governmental systems, facilities and services. However, all

parts of the project do need to be spatially proximate so that

the facilities and services can be provided in a cost-effective

manner and can be properly maintained with minimum difficulty.

The amended District is sufficiently contiguous for planning

purposes and for the purpose of district governance.

32. From an economic perspective, the physical

configuration of the amended District is ideal. The area to be

included in the amended District is compact and contiguous. The

size and physical configuration of the amended District allows

economical construction of road improvements, and maintenance of

the water management and drainage systems in a long-term, cost-

effective manner. The cost-efficient delivery of potable water

distribution, wastewater collection, and reuse lines is also

enhanced by the compactness and contiguity of the site. From an

engineering perspective, the proposed facilities can be provided

in an efficient, functional, and integrated manner. The District

has been in existence since 1989 and the amended area will be

added to an established project that is already functioning as a

single interrelated community.

33. The area to be included within the amended District can

be expected to succeed as a functional, interrelated community

from a district management perspective because the

characteristics of compactness, contiguity and size ensure the

effective delivery of services and facilities.

34. From planning, economics, en gineering and management

perspectives, 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 single functionally interrelated

community.

D. Whether the amended district is the best alternative

available for delivering community development services and

facilities to the area that will be served by the amended

district.

35. It is presently intended that the District, as amended,

will participate in the construction or acquisition of certain

road improvements, potable water distribution, wastewater

collection, and reuse systems. Capital costs of these

improvements will be borne by the District. Once completed,

certain of these improvements will be dedicated, in whole or in

part, to the County and the ownership, maintenance and operation

of the dedicated improvements will become the County's

responsibility. Others may be owned and maintained by the

District.

36. The amended District would also construct or acquire

portions of the water management system. Upon completion, the

system will be owned, operated, and maintained by the District.

37. It is expected that the District will finance these

services and improvements through use of notes or issuance of tax

exempt bonds. The debt issued by the District is expected to be

retired by non-ad valorem or special assessments on benefited

property within the District or through the imposition of other

rates, fees or charges. Use of non-ad valorem or special

assessments and user fees will ensure that the real property

benefiting from District services is the same property which pays

for them.

38. Two types of alternatives to the use of the amended

District were identified. First, the County might provide

facilities and services from its general fund or through a MSTU.

Second, facilities and services might be provided by some private

means, generally either through a private developer dependent

upon commercial loans or through a community-wide property

owners' association. These alternatives can be evaluated in

several ways: whether the alternative is able to provide the best

focused service and facilities; whether the alternative has an

entity to manage the delivery; whether the alternative can

provide a long-term perspective; whether the alternative is a

stable provider of services and facilities; and if desired,

whether the alternative can secure long term public financing and

pay for all of these management benefits at sustained levels of

quality.

39. The amended District will continue to be an independent

special purpose unit of local government designed to focus its

attention on providing long-term services to its specific

benefited properties and residents. The District will continue

to be governed by its own board of supervisors whose purpose is

to provide long-term planning, financing, and management of

services and facilities. Sources of funding assure that District

services and facilities will be adequately managed at sustained

levels of quality. Provision of facilities and services by the

County would require the County and its staff to continue to

administer, operate, and maintain the facilities. Private means

for delivering community development services and facilities

include delivery through a master neighborhood-type property

owners' association or by a private developer. Either of these

means can satisfy the demand for focused service and facilities

and managed delivery. However, neither can assure a long-term

perspective or necessarily qualify as a low-cost source of

financing.

40. From an engineering perspective, the amended District

is the best alternative to provide the proposed community

development services and facilities because it is a long-term,

stable, perpetual entity capable of maintaining the facilities

over their expected life.

41. Knowing when, where and how infrastructure will be

needed to service a projected population allows for more

efficient delivery. The amended District is better able than the

other available alternatives to focus attention on when and where

and how the next system of infrastructure will be required. This

results in a more complete utilization of existing facilities.

Moreover, the financing, construction, and delivery of facilities

and services concurrent with development in an area allow growth

to pay for itself.

42. From planning, economic, engineering, and special

district management perspectives, the amended District is the

best alternative available for delivering community development

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

District, as amended.

E. Whether the community development services and

facilities of the amended district will be incompatible with

the capacity and uses of existing local and regional

community development services and facilities.

43. The services and facilities of the amended District

are, from a planning perspective, fully compatible with the

capacity and uses of existing local or regional community

development services and facilities.

44. The services and facilities of the District as amended

are fully compatible with the capacity and uses of existing local

or regional community development services and facilities and are

consistent with the Development order. The construction,

management, and operation of the District will be closely

coordinated with and reviewed by the appropriate unit of

government. The success of the District's existing

infrastructure development activities has demonstrated that

ability within the boundaries of the existing District. The

amendment of the District's boundaries will not impact the

ability of the District to continue to successfully manage its

services and facilities. The fact that the District already

exists and provides similar services and facilities to those

which will be needed by the lands to be added to the District is

indicative of the fact that the amended District will continue to

successfully serve within the new boundaries.

45. From planning, economic, engineering, and special

district management perspectives, the services and facilities to

be provided by the amended District will not be incompatible with

the capacity and uses of existing local and regional community

development services and facilities.

F. Whether the area that will be served by the district, as

amended, is amenable to separate special-district

government.

46. As cited previously, from planning, economics,

engineering, and special district management perspectives, it is

clear that the area of land to be included in the amended

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

sufficiently contiguous to be developed and become part of the

existing functionally interrelated community at The Crossings.

The community to be included in the District as amended has need

for basic infrastructure including water management systems;

potable water distribution; wastewater collection and reuse

systems; roads; bridges; culverts and such other infrastructure.

The District has shown the ability to provide these facilities

and services.

47. From an engineering perspective, the area within the

amended District is also large enough to support a staff

necessary to operate and maintain the proposed infrastructure

systems and facilities.

48. Therefore, the area that will be served by the amended

District is amenable to separate special-district government.

G. Other requirements imposed by statute or rule.

49. Chapter 190, Florida Statutes, and Chapter 42-1,

Florida Administrative Code, impose specific requirements

regarding the petition and other information to be submitted to

the Commission.

Elements of the Petition

50. Section 190.046(1)(a), Florida Statutes, requires the

petition to contain a metes and bounds description of the

external boundaries of the District. Petitioner's Composite

Exhibit A contains such a description.

51. Section 190.046(1)(a), Florida Statutes, also requires

a description of any real property within the revised external

boundaries which is to be excluded from the district and the last

known address of the owners of such properties. There are no

such parcels.

52. In cases of district expansions, section 190.046(1)(a),

Florida Statutes, also requires that the petition contain the

proposed timetable for the construction of any district services

to the area being added and the estimated construction costs for

those services as well as the designation of the future general

distribution, location, and extent of public and private land

uses proposed for the area by the future land use element of the

adopted local government comprehensive plan. Petitioner's

Composite Exhibit A contains this information.

53. Section 190.046(1)(e), Florida Statutes, requires the

petition to contain written consent to establishment of the

District by the owners of 100 percent of the real property to be

included within the District. Petitioner's Composite Exhibit A

contains this information.

54. Section 190.046(1)(a), Florida Statutes, requires the

petition to include a Statement of Estimated Regulatory Costs

(the "SERC") which meets the requirements of Section 120.541,

Florida Statutes. The petition contains a SERC. It meets all

requirements of Section 120.541, Florida Statutes.

Statement of Estimated Regulatory Costs

55. The SERC contains an estimate of the costs and benefits

to all persons directly affected by the proposed rule to amend

the boundaries of the District -- the State of Florida and its

citizens, the County and its citizens, the Petitioner, and

consumers.

56. Beyond ad ministrative costs related to rule adoption,

the State and its citizens will incur no costs from amendment of

the District's boundaries. The amended District will require no

subsidies from the State. Benefits will include improved

planning and coordination of development, which is difficult to

quantify but nonetheless substantial. There will be no

additional residential units within the District as a result of

expansion beyond those contemplated for the initial District.

Administrative costs incurred by the County related to FLWAC’s

rule adoption should be offset by the filing fee paid by the

Petitioner.

57. Consumers will pay District non-ad valorem or special

assessments or other rates, fees or charges for certain

facilities. Location within the District is voluntary. Benefits

to consumers in the amended area will include a higher level of

public services and amenities than might otherwise be available,

completion of District-sponsored improvements to the amended area

on a timely basis, and a larger share of direct control over

community development services and facilities within the amended

area.

More Requirements

58. The SERC concludes that there will be no adverse impact

on any affected party from the amendment of the District's

boundaries.

59. Petitioner has complied with the provisions of Section

190.046(1)(d)2, Florida Statutes, regarding submission of the

Petition and payment of a filing fee to the local general purpose

government -- Clay County.

60. Section 190.046(1)(d)4, Florida S tatutes, requires the

Petitioner to publish notice of the local public hearing in a

newspaper of general circulation in Clay County for four

consecutive weeks prior to the hearing. The notice was published

in the Jacksonville Times-Union newspaper, a newspaper of general

circulation in Clay County, for four consecutive weeks, on

October 28, November 4, 11 and 18.

CONCLUSIONS OF LAW

61. This proceeding is governed by Chapters 120 and 190,

Florida Statutes, and Chapter 42-1, Florida Administrative Code.

62. The proceeding was properly noticed pursuant to Section

190.046, Florida Statutes, by publication of an advertisement in

a newspaper of general paid circulation in Clay County and of

general interest and readership once each week for the four

consecutive weeks immediately prior to the hearing.

63. The Petitioner has met the requirements of Section

190.046, Florida Statutes, regarding the submission of the

Petition and payment of a filing fee.

64. The Petitioner bears the burden of establishing th at

the petition meets the relevant statutory criteria set forth in

Section 190.005(1)(e), Florida Statutes.

65. All portions of the petition and other submittals have

been completed and filed as required by law.

66. All statements contained within the petition as

corrected and supplemented at the hearing are true and correct.

67. The amendment of the District is not inconsistent with

any applicable element or portion of the State Comprehensive Plan

or the effective Clay County Comprehensive Plan, as amended.

68. The area of land within the amended District is of

sufficient size, is sufficiently compact, and is sufficiently

contiguous to be developable as one functional interrelated

community.

69. The amended District is the best alternative available

for delivering community development services and facilities to

the new area that will be served by the District.

70. 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 development

services and facilities.

71. The area to be served by the amended District is

amenable to separate special district government.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of

law, the undersigned Administrative Law Judge recommends that the

Governor and Cabinet, sitting as the Florida Land and Water

Adjudicatory Commission, pursuant to Chapters 190 and 120,

Florida Statutes, and Chapter 42-1, Florida Administrative Code,

amend the boundaries of The Crossings at Fleming Island Community

Development District as requested by the Petitioner by formal

adoption of the proposed rule attached to this Report of Findings

and Conclusions as Exhibit 3.

DONE AND ENTERED this 22nd day of December, 1998, in

Tallahassee, Leon County, Florida.

___________________________________

DON W. DAVIS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 22nd day of December, 1998.

COPIES FURNISHED:

Robert Bradley, Secretary

Florida Land and Water

Adjudicatory Commission

Executive Office of the Governor

2101 Capitol

Tallahassee, Florida 32399-0001

Elizabeth C. Bowman, Esquire

Jonathan T. Johnson, Esquire

Hopping, Green, Sams and Smith, P.A.

123 South Calhoun Street

Post Office Box 6526

Tallahassee, Florida 32314

David Schwartz, Esquire

Office of the Governor

Florida Land and Water

Adjudicatory Commission

The Capitol, Room 209

Tallahassee, Florida 32399-0001

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.