The Issue The issues to be determined are whether, with respect to each application filed, Florida Housing Finance Corporation’s (Florida Housing) review and decision-making process in response to the Request for Applications 2020-201 (RFA) was contrary to the agency’s governing statutes, the agency’s rules or policies, or the RFA.
Findings Of Fact Florida Housing is a public corporation created pursuant to section 420.504, Florida Statutes. Its purpose is to promote public welfare by administering the governmental function of financing affordable housing in Florida. Section 420.5099 designates Florida Housing as the housing credit agency for Florida within the meaning of section 42(h)(7)(a) of the Internal Revenue Code and has the responsibility and authority to establish procedures for allocating and distributing low-income housing tax credits. The low-income housing tax credit program (commonly referred to as “tax credits” or “housing credits”) was enacted to incentivize the private market to invest in affordable rental housing. These housing credits are awarded competitively to housing developers in Florida for rental housing projects which qualify. The effect is to reduce the amount that the developer must otherwise borrow. Because the total debt is lower, the housing credit property can (and must) offer lower, more affordable rents. Developers also covenant to keep rents at affordable levels for periods of 30 to 50 years as consideration for receipt of the housing credits. The demand for housing credits provided by the federal government exceeds supply. The Competitive Application Process Section 420.507(48) authorizes Florida Housing to allocate housing credits and other funding through requests for proposals or other competitive solicitations, and Florida Housing has adopted Florida Administrative Code Chapter 67-60 to prescribe the competitive solicitation process. Chapter 67-60 provides that Florida Housing allocate its competitive funding through the bid protest provisions of section 120.57(3). Applicants for funding request, in their applications, a specific dollar amount of housing credits to be given to the applicant each year for a period of ten years. Applicants normally will sell the rights to the future stream of income housing credits (through the sale of almost all of the ownership interest in the applicant entity) to an investor to generate the amount of capital needed to build the development. The amount an applicant can receive depends on several factors, such as a certain percentage of the projected total development cost; a maximum funding amount per development based on the county in which the development will be located; and whether the development is located within certain designated areas of some counties. These are just examples of the factors considered, and this is by no means an exhaustive list. Housing credits are made available through a competitive application process that starts with the issuance of an RFA. An RFA is considered to be a “request for proposal” as indicated in rule 67-60.009(4). The RFA in this case was issued on August 26, 2020, and responses were due November 5, 2020. The RFA was modified September 11, 2020, and October 12, 2020, but with no change with respect to the response deadline. Through the RFA, Florida Housing expects to award up to an estimated $15,275,810 of housing credits to proposed developments in medium-sized counties, and up to an estimated $1,453,730 of housing credits to proposed developments in small counties. Florida Housing received 84 applications in response to RFA 2020-201. A Review Committee was appointed to review the applications and make recommendations to the Florida Housing Board of Directors (Board). The Review Committee found 79 applications eligible and five applications ineligible for funding. Through the ranking and selection process outlined in the RFA, 10 applications were preliminarily recommended for funding. The Review Committee developed charts listing its eligibility and funding recommendations to be presented to the Board. The federal government enacted the Consolidated Appropriations Act (CCA) in December 2020, and as a result, an additional $3,367,501 in housing credits became available for affordable housing for Escambia, Santa Rosa, Okaloosa, Walton, and Bay Counties, which were impacted by Hurricane Sally. The staff at Florida Housing recommended using the CCA funding to award housing credits to additional highest-ranking eligible applications in qualified disaster areas, subject to the county award tally, regardless of the county size in RFA 2020-201 and developed a chart listing its CCA funding recommendations to be presented to the Board. On January 22, 2021, the Board met and considered the recommendations of the Review Committee and staff for RFA 2020-201. At approximately 2:50 p.m. that day, all of the applicants in RFA 2020-201 were provided notice that the Board determined whether applications were eligible or ineligible for consideration of funding, and that certain eligible applicants were preliminarily selected for funding, subject to satisfactory completion of the credit underwriting process. Notice was provided by posting on the Florida Housing website two spreadsheets: one listing the Board-approved scoring results in RFA 2020-201; and one identifying the applications which Florida Housing proposed to fund. In the January 22, 2021, posting, Florida Housing announced its intention to award funding to 24 applicants, including The Villages, Pinnacle at Hammock Springs, and Rosemary Place. Petitioners timely filed Notices of Protest and Petitions for Formal Administrative Proceedings. All Intervenors have been properly recognized as such. The terms of RFA 2020-201 were not challenged. RFA 2020-201 Ranking and Selection Process The RFA contemplates a structure in which the applicant is scored on eligibility items and obtains points for other items. A summary of the eligibility items is listed in Section 5.A.1. of the RFA, beginning at page 71. Only applications that meet all of the eligibility requirements will be eligible for funding and considered for the funding selection. This challenge does not raise any issues with respect to the point totals awarded to the applicants. The RFA has four funding goals: The Corporation has a goal to fund five Medium County Developments that qualify for the Local Government Areas of Opportunity Funding Goal outlined in Section Four A.11.a of the RFA, with a preference that three of the Applications meet the criteria outlined in Section Four, A.11.b(1) of the RFA to be considered submitted but not awarded in RFA 2019-113, and two of the Applications meet the criteria outlined in Section Four, A.11.b(2) of the RFA to be considered not submitted in RFA 2019-113. The Corporation has a goal to fund one Development that qualifies for the Local Revitalization Initiative Goal outlined in Section Four A.5.i of the RFA. The Corporation has a goal to fund two Developments with a Demographic commitment of Family that select and qualify for the geographic Areas of Opportunity/ SADDA Goal outlined in Section Four A.10.a(1)(d) of the RFA. The Corporation has a goal to fund one Development that qualifies for the SunRail Goal outlined in Section Four, A.5.e.(5) of the RFA. *Note: During the Funding Selection Process, outlined below, Developments selected for these goals will only count toward one goal with one exception: If an Application that was selected to meet the Local Government Areas of Opportunity Goal or Local Revitalization Initiative Goal also qualifies for the SunRail Goal, the SunRail Goal will also be considered met. (Jt. Exh. 1, pp.75). At page 76 of Joint Exhibit 1, the RFA also sets forth the sorting order to be used when selecting applications to meet the Local Government Areas of Opportunity Funding Goal: The highest scoring applications will be determined by first sorting together all eligible Priority I Medium County Applications from highest score to lowest score, with any scores that are tied separated in the following order. This will then be repeated for Priority II Applications: First, counties of the Applications that (i) qualified for the Local Government Areas of Opportunity Funding Goal in FRA 2019-113 and (ii) were invited to enter credit underwriting will receive lower preference than other Medium Counties competing for the Local Government Areas of Opportunity Funding Goal. This affects the following counties: Brevard, Lee, Santa Rosa, Sarasota, and Volusia. The remaining counties will receive higher preference. Next, by the Application’s eligibility for the Per Unit Construction Funding Preference which is outlined in Section Four A.10.e. of the RFA (with Applications that qualify for the preference listed above Applications that do not qualify for the preference); Next, by the Application’s eligibility for the Per Unit Construction Funding Preference which is outlined in Section Four A.10.e of the RFA (with Applications that qualify for the preference listed above Applications that do not qualify for the preference); Next, by the Application’s Leveraging Classification, applying the multipliers outlined in Item 3 of Exhibit C of the RFA (with Applications having the Classification of A listed above Applications having the Classification of B); Next, by the Application’s eligibility for the Florida Job Creation Funding Preference which is outlined in Item 4 of Exhibit C of the RFA (with Applications that qualify for the preference listed above Applications that do not qualify for the preference); And finally, by lottery number, resulting in the lowest lottery number receiving preference. Next, the RFA sets forth the sorting order for selecting applications to meet the Local Revitalization Initiative Goal. It then sets for the sorting order after selecting applications to meet the Local Government Areas of Opportunity Funding Goal (LGAO Designation) and Local Revitalization Initiative Goal. The RFA includes a funding test where a) small county applications will be selected for funding only if there is enough small county funding ($1,453,730) available to fully fund the Eligible Housing Credit Request Amount, and b) medium county applications will be selected for funding only if there is enough medium county funding ($15,275,810) available to fully fund the Eligible Housing Credit Request Amount. The RFA outlines a specific County Award Tally based on Priority Levels as follows: Priority I County Award Tally As each Priority I Application is selected for tentative funding, the county where the Development is located will have one Application credited towards the County Award Tally. The Corporation will prioritize eligible unfunded Priority I Applications that meet the Funding Test and are located within counties that have the lowest County Award Tally above other eligible unfunded Priority I Applications with a higher County Award Tally that also meet the Funding Test, even if the Priority I Applications with a higher County Award Tally are higher ranked. Priority II County Award Tally As each Priority II Application is selected for tentative funding, the county where the proposed Development is located will have one Application credited towards the County Award Tally. The Corporation will prioritize eligible unfunded Priority II Applications that meet the Funding Test and are located within counties that have the lowest County Award Tally above other eligible unfunded Priority II Applications with a higher County Award Tally that also meet the Funding Test, even if the Priority II Applications with a higher County Award Tally are higher ranked. (Jt. Exh. 1, pp. 78-79) The RFA outlines the selection process at pages 79-81 as follows: Five Applications that qualify for the Local Government Areas of Opportunity Funding Goal Applications that were submitted in RFA 2019- 113 but not Awarded The first three Applications that will be considered for funding will be the highest ranking eligible Medium County Priority I Applications that qualify for the Local Government Areas of Opportunity Funding Goal that were submitted in RFA 2019- 113 but not awarded, subject to the Funding Test and County Award Tally. Priority I Applications will continue to be selected until this preference is met. If there are no remaining eligible unfunded Priority I Applications that qualify for this preference, then the process will continue using Priority II Applications until this preference is met. Applications that were not submitted in RFA 2019-113 The next Applications that will be considered for funding will be the highest ranking eligible Medium County Priority I Applications that qualify for the Local Government Areas of Opportunity Funding Goal that were not submitted in 2019-113, subject to the Funding Test and the County Award Tally. Priority I Applications will continue to be selected until this Goal is met. If there are no remaining eligible unfunded Priority I Applications that qualify for this Goal, then the process will continue using Priority II Applications until this Goal is met or until it is determined that there are not eligible unfunded Applications that can meet this Goal. One Application that qualifies for the Local Revitalization Initiative Goal The next Application selected for funding will be the highest ranking eligible unfunded Priority I Application that qualifies for the Local Revitalization Initiative Goal, subject to the Funding Test and the County Award Tally. If there are no eligible unfunded Priority I Applications that qualify for this Goal, then the highest ranking eligible unfunded Priority II Application that qualifies for the Local Revitalization Initiative Goal will be selected, subject to the Funding Test and the County Award Tally. Two Family Applications that qualify for the Geographic Areas of Opportunity/ HUD-designated SADDA Goal The next two Applications select [sic] for funding will be the highest ranking eligible unfunded Priority I Family Applications that qualify for the Geographic Areas of Opportunity/ HUD-designated SADDA Goal, subject to the Funding Test and the County Award Tally. Priority I Applications will continue to be selected until this goal is met. If there are no remaining eligible unfunded Priority I Applications that qualify for this Goal, then the process will continue using Priority II Applications until this Goal is met or until it is determined that there are no eligible unfunded Applications that can meet this goal. One Application that Qualifies for the SunRail Goal If an Application that was selected to meet the Local Government Areas of Opportunity Goal described in a. above or Local Revitalization Initiative Goal described in b. above also qualifies for the SunRail Goal, this Goal will be considered met without selecting an additional Application. If none of the Applications selected to meet the Local Government Areas of Opportunity Goal or Local Revitalization also qualify for the SunRail Goal, the next Application selected for funding will be the highest ranking eligible unfunded Priority I Application that qualifies for the SunRail Goal, subject to the Funding Test and the County Award Tally. If there are no eligible unfunded Priority I Applications that qualify for this Goal, then the highest ranking eligible unfunded Priority II Application that qualifies for the SunRail Goal will be selected, subject to the Funding Test and the County Award Tally. The next Applications selected for funding will be the highest ranking eligible unfunded Priority I Small County Applications that (i) can meet the Small County Funding Test and (ii) have a County Award Tally that is less than or equal to any other eligible unfunded Small County Priority I Applications. If Small County funding remains and no unfunded eligible Small County Priority I Application can meet the Small County Funding Test, then the process will continue using Priority II Applications until this Goal is met or until no unfunded Small County Priority II Application can meet the Small County Funding Test. If Small County funding remains and no unfunded eligible Small County Applications can meet the Small County Funding Test, no further Small County Applications will be selected, and the remaining Small County Funding will be added to the Medium County funding amount. The next Applications selected for funding will be the highest ranking eligible unfunded Priority I Medium County Applications that (i) can meet the Medium County Funding Test and (ii) have a County Award Tally that is less than or equal to any other eligible unfunded Medium County Priority I Applications. If Medium County funding remains and no unfunded eligible Medium County Priority I Applications can meet the Medium County Funding Test, then the process will continue using Priority II Applications until this Goal is met or until no unfunded eligible Medium County Priority II Applications can meet the Small County Funding Test. If Medium County Funding remains and no unfunded eligible Medium County Application can meet the Medium County Funding Test, no further Applications will be selected and the remaining funding will be distributed as approved by the Board. After the description of the sorting process, the RFA specifies: Funding that becomes available after the Board takes action on the Committee’s recommendation(s), due to an Applicant withdrawing, an Applicant declining its invitation to enter credit underwriting or the Applicant’s inability to satisfy a requirement outlined in this RFA, and/or provisions outlined in Rule Chapter 67-48, F.A.C., will be distributed as approved by the Board. All 84 applications for RFA 2020-201 were received, processed, deemed eligible or ineligible, scored, and ranked, pursuant to the terms of the RFA, Florida Administrative Code Chapters 67-48 and 67-60, and applicable federal regulations. The Fletcher Black Application During the scoring process, Florida Housing determined that the Fletcher Black application was eligible for funding, but ineligible for the LGAO Designation. Fletcher Black was not selected for preliminary funding. If Fletcher Black’s application was eligible for the LGAO Designation, it would have been selected for funding. It would have been selected as the second of the three developments selected for the LGAO Priority I applications that qualified for the preference for those development applications submitted in RFA 2019-113, but not awarded as outlined on pages 69-70 of the RFA. Additionally, if Fletcher Black is eligible for the LGAO Designation, then The Villages and Pinnacle at Hammock Springs will be displaced from funding. In order to qualify for the LGAO Designation and Goal, applicants must “demonstrate a high level of Local Government interest in the project via an increased amount of Local Government contributions in the form of cash loans and/or cash grants.” The RFA outlines the types and amounts of contributions from Local Governments that will be accepted to meet the LGAO Designation. Fletcher Black’s proposed development is in Bay County. Therefore, Fletcher Black would be required to demonstrate a contribution of at least $340,000 to be considered for the LGAO Designation. The RFA at page 67 expressly limits the number of applications from the same government jurisdiction as follows: Limit on the number of Applications within the same jurisdiction A proposed Development may only qualify where a jurisdiction (i.e., the county or a municipality) has contributed cash loans and/or cash grants for any proposed Development applying for this RFA in an amount sufficient to qualify for the Local Government Areas of Opportunity Designation. A Local Government can only contribute to one Application that qualifies for the Local Government Area of Opportunity Designation, regardless of how the contribution is characterized. Any single jurisdiction may not contribute cash loans and/or cash grants to more than one proposed Development applying for the Local Government Areas of Opportunity Designation. If multiple Applications demonstrate Local Government Areas of Opportunity Funding from the same jurisdiction and those Applications qualify for the Local Government Areas of Opportunity Designation, then all such Applications will be deemed ineligible for the Local Government Areas of Opportunity Designation, regardless of the amount of Local Government Areas of Opportunity Funding or how the contribution is characterized. However, Local Governments may pool contributions to support one Application (i.e., the county and the city may provide contribution to the same Development and each Local Government will submit its own form as an Attachment to the Application). Page 68 of the RFA describes the requirements for demonstrating LGAO funding: In order to be eligible to be considered Local Government Areas of Opportunity Funding, the cash loans and/or cash grants must be demonstrated via one or both of the Florida Housing Local Government Verification of Contribution Forms (Form Rev. 07-2019), called “Local Government Verification of Contribution – Loan” form and/or the “Local Government Verification of Contribution -- Grant” form. The forms must meet the Non-Corporation Funding Proposal Requirements outlined in 10.b.(2)(a) above, the qualifying funding must be reflected as a source on the Development Cost Pro Forma, and the applicable form(s) must be provided as Attachment 16 to the Application. Applications are not required to reflect the value (difference between the face amount and the net present value of the payment streams) on any Local Government Verification Forms. Similarly, Section 10.b.(2)(a) of the RFA specifies that, Note: Eligible Local Government financial commitments (i.e., grants and loans) can be considered a source of financing without meeting the requirements above if the Applicant provides a properly completed and executed Local Government Verification of Contribution – Grant Form (Form 0702019) and/or the Local Government Verification of Contribution – Loan Form (Form 07-2019). Fletcher Black submitted a Local Government Verification of Contribution – Grant Form (Grant Form) from the City of Panama City in the amount of $340,000. Fletcher Black’s Grant Form was executed by Greg Bridnicki, as the Mayor of Panama City and “Approved as to Form and Correctness” by Nevin Zimmerman, City Attorney. Fletcher Black’s request for funding from Panama City was placed on the agenda for the City of Panama City City Commission’s August 25, 2020, meeting, and approved by the City Commission, which authorized Mr. Bridnicki to sign the Grant Form. Fletcher Black had obtained a similar LGAO Form in the previous year using the same established process. Fletcher Black did not submit any documentation in the RFA Application regarding the process used to gain approval of the grant. However, no party identified any requirement in the RFA that such a description must be included in the Application. Fletcher Black cannot be faulted for not supplying something that is not required. Another Applicant, Panama Manor App. No. 2021-074C, submitted a Grant Form from the City of Panama City in the amount of $340,000 executed by Michael Johnson. Mr. Johnson’s title is listed as the Director of Community Development/CRA/CDBG/SHIP. During the scoring process, Florida Housing’s scorer found that since both Fletcher Black and Panama Manor submitted documentation for the LGAO Designation from the same jurisdiction, the City of Panama City, according to the terms of the RFA, both applications were deemed ineligible for the LGAO Designation. The Grant Form submitted by both Fletcher Black and Panama Manor contains the following instruction regarding who is authorized to sign the form on behalf of the local government: This certification must be signed by the chief appointed official (staff) responsible for such approvals, Mayor, City Manager, County Manager/ Administrator/ Coordinator, Chairperson of the City Council/Commission or Chairperson of the Board of County Commissioners. … One of the authorized persons named above may sign this form for certification of state, federal or Local Government funds initially obtained or derived from a Local Government that is directly administered by an intermediary such as a housing finance authority, a community reinvestment corporation, or a state-certified Community Housing Development Organization (CHDO). Other signatories are not acceptable. The Applicant will not receive credit for this contribution if the certification is improperly signed. To be considered for points, the amount of the contribution stated on this form must be a precise dollar amount and cannot include words such as estimated, up to, maximum, not to exceed, etc. Michael Johnson was not authorized by the City of Panama City to sign the Grant Form. Greg Bridnicki, as Mayor of Panama City, is an authorized signatory. Panama Manor’s request was not submitted to the City Commission for approval. Because the Grant Form was improperly signed, Panama Manor should not, by the terms of the RFA, receive credit for the LGAO Designation. Had Panama Manor’s application received the LGAO Designation, it would not have been selected for funding because its lottery number was too high. Michael Johnson is the Director of Community Development for the City of Panama City. While he is an employee for the City of Panama City, he also performs duties for Bay County through an interlocal agreement between the city and the county. The Grant Form submitted for Panama Manor stated on its face that it was signed on behalf of the City of Panama City, but Mr. Johnson testified that the form was supposed to reflect that it was for Bay County. Mr. Johnson testified that over the last 17 years, he has executed approximately 40 forms for applications for funding from Florida Housing. He acknowledged that there are multiple types of forms that may need signatures from city or county officials to complete a Florida Housing application, such as zoning forms and infrastructure-verification forms, as well as local government contribution forms. Since Florida Housing changed its process to use RFAs in 2013, Mr. Johnson could not recall if he signed the Grant Forms or whether the city manager did. He could not confirm signing a single Grant Form for either the city or the county since 2013. Mr. Johnson believed that he had the authority to sign Grant Forms on behalf of both the city and the county. Mark McQueen, the City of Panama City city manager and Mr. Johnson’s boss, does not share his belief. According to Mr. McQueen, whose testimony is credited, Panama City committed only to the Fletcher Black property, took no official action with respect to Panama Manor’s application, and Mr. Johnson was not authorized to sign the Grant Form committing funds on behalf of the City. When Mr. Johnson realized that the Panama Manor Grant Form stated that it was signed on behalf of Panama City as opposed to Bay County, he called the legal department for Florida Housing to explain the error. He testified that he spoke with several people at Florida Housing, including Jean Salmonson, David Weston, and someone in the multi-family development section. Mr. Johnson was not sure of the dates when these telephone calls were made, but it appears that the telephone calls were after the submission of the applications but before the posting of funding selections. Marissa Button is Florida Housing’s Director of Multifamily Programs. She testified that Florida Housing is aware of the contention that the form submitted by Panama Manor was signed in error and should have reflected that it was signed on behalf of Bay County. She was also aware that according to Mr. McQueen, Mr. Johnson did not have the authority to sign a Grant Form on behalf of the City of Panama City. She stated: Q. How does that information impact Florida Housing’s scoring decision? A. This --at this juncture it does not impact Florida Housing’s scoring determination as to the Panama Manor or Fletcher Black being designated as LGAO goal. … We take the requirement of the RFA specifically references the – the submission of what – when there’s a submission of multiple applications from the same jurisdiction, and so we, Florida Housing, consider that as of – as of the application deadline what this applicant has submitted is a form executed on behalf of the City of Panama City. To change the designation, which I understand from Mr. Johnson’s testimony it was a mistake, he intended to issue on behalf of Bay County and reflect that, we interpret that to be a – an improper amendment or modification to the application after the application submission. So we do not consider it to change the scoring designation of the – of either the Panama Manor application or the resulting consequence to the Fletcher Black application. * * * Q. Now, Fletcher Black may argue that it’s unfair to treat its application as ineligible for the LGAO designation and goals when the Fletcher Black [application] did not contain an error. What would your response be to that? A. You know, my response is, we score the application in accordance with the terms of the RFA. The applications are responsible for all parts of that – that RFA with regard to their application submission. It’s clear in this RFA that there would be a consequence if other applications were submitted from the same jurisdiction for an LGAO designation. And, unfortunately, that’s the mistake that happened, but the fairness – it is a fair process because we are – we are administering the RFA as it has been, you know – as the terms exist to the public and to the fellow applications that came in for funding. So, I – I do believe it’s unfortunate that that consequence impacts their application; however, it is – it is fair because that’s the consequence if it happens. (T-39-40, 45-46). Panama Manor’s application did not demonstrate local government funding because the Grant Form was not signed by someone with authority to do so. The RFA specifically states that “[o]ther signatories are not acceptable. The Applicant will not receive credit for this contribution if the certification is improperly signed.” Where forms signed by local government officials are challenged, Ms. Button indicated that Florida Housing has in the past relied upon or deferred to local government officials to address the propriety of the forms signed. The issue usually arises with forms related to zoning or other facets encompassed in the Ability to Proceed forms. Here, the credible testimony of local officials is that the Grant Form for Panama Manor was intended to reflect a funding commitment from Bay County and the signator on Panama Manor’s Grant Form was not authorized to sign on behalf of the City of Panama City. It would be contrary to competition if Panama Manor were allowed to amend its application to correct the Grant Form. It is appropriate to disregard Panama Manor’s Grant Form, given the inaccuracies contained therein. If Panama Manor’s application is not selected for the LGAO Designation because of its failure to demonstrate that the City of Panama City is providing local support for Panama Manor’s project, then there is only one application with a valid Grant Form from the City of Panama City, and that is Fletcher Black. Ms. Button testified that it would provide a competitive advantage to Fletcher Black if Fletcher Black were considered for the LGAO Designation. However, she stated that applicants are responsible for all parts of their application submission. Fletcher Black did not make an error in its application and is not requesting that it be amended in any way. It is asking that the application be considered as submitted, just as other applications are considered. Florida Housing’s decision to find Fletcher Black ineligible for the LGAO Designation is clearly erroneous, in light of the clear demonstration that Panama Manor did not demonstrate a local funding commitment from the City of Panama City, and Fletcher Black is the only entity that did so. The Rosemary Place Application Florida Housing deemed the Rosemary Place application to be eligible and, pursuant to the terms of the RFA, preliminarily selected Rosemary Place for funding. One of the requirements for eligibility under the RFA is that applicants demonstrate Site Control by providing a properly completed and executed Florida Housing Finance Corporation Site Control Certification form (Site Control Form). For the Site Control Form to be considered complete, the applicant must attach documentation demonstrating that it is a party to an eligible contract or lease or is the owner of the subject property. Applicants can demonstrate Site Control by providing documentation that meets the requirements in the RFA for an eligible contract, deed or certificate of title, or a lease. The RFA specifies at pages 39-40 that an eligible contract must meet the following conditions: It must have a term that does not expire before May 31, 2021 or that contains extension options exercisable by the purchaser and conditioned solely upon payment of additional monies which, if exercised, would extend the term to a date that is not earlier than May 31, 2021; It must specifically state that the buyer’s remedy for default on the part of the seller includes or is specific performance; The Applicant must be the buyer unless there is an assignment of the eligible contract, signed by the assignor and the assignee, which assigns all of the buyer’s rights, title and interests in the eligible contract to the Applicant: and The owner of the subject property must be the seller, or is a party to one or more intermediate contracts, agreements, assignments, options, or conveyances between or among the owner, the Applicant, or other parties, that have the effect of assigning the owner’s right to sell the property to the seller. Any intermediate contract must meet the criteria for an eligible contract in (a) and (b) above. The RFA notifies applicants that Florida Housing’s review of the Site Control documents is limited. At page 40, the RFA states: Note: The Corporation will not review the site control documentation that is submitted with the Site Control Certification form during the scoring process unless there is a reason to believe that the form has been improperly executed, nor will it in any case evaluate the validity or enforceability of any such documentation. During scoring, the Corporation will rely on the properly executed Site Control Certification form to determine whether an Applicant has met the requirement of this RFA to demonstrate site control. The Corporation has no authority to, and will not, evaluate the validity or enforceability of any eligible site control documentation that is attached to the Site Control Certification form during the scoring process. During credit underwriting, if it is determined that the site control documents do not meet the above requirements, the Corporation may rescind the award. The RFA also requires that, for the purpose of demonstrating Site Control, “documentation must include all relevant intermediate contracts, agreements, assignments, options, conveyances, intermediate leases and subleases. If the proposed Development consists of Scattered Sites, site control must be demonstrated for all of the Scattered Sites.” A “scattered site” is defined in Florida Administrative Code Rule 67- 48.002(106) as “a Development site that, when taken as a whole, is comprised of real property that is not contiguous (each such non-contiguous site within a Scattered Site Development, is considered to be a “Scattered Site”). For purposes of this definition ‘contiguous’ means touching at a point or along a boundary. …” Rosemary Place submitted a properly completed and executed Site Control Form which was accepted by Florida Housing during its review, scoring, and ranking process. As an attachment to its Site Control Form, Rosemary Place attached a Purchase and Sale Agreement (Rosemary Place Agreement) between Kyle McDorman as the Seller and RM FL XX Prime, LLC (the applicant entity for Rosemary Place) as the Purchaser. The Rosemary Place Agreement has a term that does not expire before May 31, 2021, and states that the buyer’s remedy for default on the part of the seller includes or is specific performance. The Rosemary Place Application identified the address of the proposed development as “690’ N of intsctn of 331-Bus & Azalea Dr on W side of 331- Bus; within city limits of Freeport, FL (Walton County).” (J-16, page 5). The Development Location Point, consisting of latitude and longitude coordinates was correctly identified, and the Rosemary Place Application stated that the proposed development did not consist of scattered sites. Exhibit A of the Rosemary Place Purchase and Sale Agreement identifies the property as follows: That Thirteen (13.0) Acres situated in the City of Freeport, FL (Distrct 2); Section 10, Township 1S, Range 19, and which is part of Walton County, FL Parcel 10-1S-19-23000-009-0020 which is further described in the land records of Walton County, FL as 210FT SQ FT IN THE SE/C OF THE W1/2 OF THE NE1/4 OF SW1/4 IN SEC 10-1S-19W, 204-184, 1204-279, 2660- 2976, 3084-4417 and which is recorded in that Warranty Deed from Grantor Aaron M and Rachel N Sloan Elkins to Grantee Kyle J. McDorman which Warranty Deed is recorded in the land records of Walton County, FL at Book 3084 and Page Number 4417. The Property is further described and identified as the shaded area denoted with an X in the image below. Based on the Walton County Property Appraiser map, the shaded area denoted with an X is contained within Parcel No. 10-1S-19-23000-009-0000, which is owned by the Seller, Kyle McDorman, as opposed to Parcel No. 10- 1S-19-23000-009-0020. Timshell contends that the shaded area denoted with an X overlaps parcels outside of Parcel No. 10-1S-19-23000-009-0000. Timshell contends that the submitted Site Control documentation submitted by Rosemary Place is not consistent with the requirements of the RFA because of the uncertainty of the property that is actually being purchased and where the proposed Development site is actually located. Timshell also contends that the Rosemary Place Purchase and Sale Agreement, as written and submitted to Florida Housing, denotes scattered sites which were not disclosed by Rosemary Place in its application. Rosemary Place contends, and Florida Housing agrees, that the shaded area denoted with an X on Exhibit A to the Rosemary Place Agreement sufficiently identifies the property being purchased through the agreement as the Development site. Moreover, the visual depiction of the property is consistent with the written description of the development location in the Rosemary Place Application at J-16, page 5. The Rosemary Place Application does not depict scattered sites. Even assuming that the parcel number included in Exhibit A were part of the purchase reflected in the Sale and Purchase Agreement, an eligible contract may involve the purchase of multiple properties or a larger parcel of property than will be developed. What is most important is that the documents show where the development will be located, which Rosemary Place’s application demonstrates, and that the applicant will have control over the location. Ms. Button testified that Florida Housing did not consider the Rosemary Place Application to be proposing a scattered sites development. Rosemary Place affirmatively stated that it was not proposing a scattered sites development; did not list coordinates for scattered sites; and did not identify the location of scattered sites on other forms required by the RFA. Exhibit A to the Purchase and Sale Agreement contains typographical errors in the written description of the property being sold. Stewart Rutledge, who prepared the Purchase and Sale Agreement, testified credibly that parcel numbers are listed on the Walton County Property Appraiser website, and that to see a particular parcel description, the user clicks on the parcel number he or she wants to see. When preparing the Purchase and Sale Agreement, Mr. Rutledge mistakenly clicked on the parcel number immediately above the parcel number he wanted, and he did not notice the error. The parcel number reflected in the Purchase and Sale Agreement references another parcel owned by the seller, Kyle McDorman. Florida Housing considered the typographical error within Exhibit A that results in the listing of the wrong parcel number and property description to be a waivable minor irregularity because the error did not result in the omission of any material information; did not create uncertainty that a term of the RFA was met; and did not adversely impact Florida Housing or the public. The same could be said for other typographical error in the Purchase and Sale Agreement, such as capitalizing the word “property” when it should not have been. Ms. Button also noted that the RFA does not require applicants to submit a land survey of the proposed development site with its application. The RFA states that Florida Housing reserves the right to waive minor irregularities. A minor irregularity is defined in rule 67-60.008 as: those irregularities in an Application, such as computation, typographical, or other errors, that do not result in the omission of any material information; do not create any uncertainty that the terms and requirements of the competitive solicitation have been met; do not provide a competitive advantage or benefit not enjoyed by other Applicants; and do not adversely impact the interests of the Corporation or the public. Minor irregularities may be waived or corrected by the Corporation. Timshell presented the testimony of Stephen Rutan, a professional land surveyor. Mr. Rutan believed that, based on the property description in the Purchase and Sale Agreement, the proposed development site overlapped with another parcel not owned by the seller. Mr. Rutan did not perform a professional land survey and admitted that the boundary lines in his informational Exhibit (Timshell Exhibit 4) were not completely accurate. Given that the measurements that Mr. Rutan provided were estimates and not the result of a survey, and the testimony by Mr. Rutledge that the parcel identification was the result of a clerical error, Mr. Rutan’s testimony is given little weight, and does not demonstrate that the error in the Purchase and Sale Agreement included in Rosemary Place’s application created any real uncertainty that the terms and requirements of the competitive solicitation have been met. Florida Housing’s determination that the error in Rosemary Place’s application was a waivable minor irregularity is not clearly erroneous. Madison Oaks East, Madison Oaks West, and Madison Grove Florida Housing determined that the Madison Oaks West, Madison Oaks East, and Madison Grove Applications were eligible for funding but ineligible for the “submitted but not awarded in RFA 2019-113 Preference.” Madison Oaks West, Madison Oaks East, and Madison Grove were not selected for preliminary funding. Within the LGAO Designation and Goal, the RFA contained preferences for funding. One of those preferences was for developments that were submitted but not awarded in RFA 2019-113 (the 2019-113 Preference). In order to qualify for the 2019-113 Preference, an Applicant must meet the following requirements: The question at 11.b.(1) of Exhibit A must reflect confirmation that the Development was submitted but not awarded in RFA 2019-113; The Application in RFA 2019-113 must have provided a Local Government Verification of Contribution – Loan or Grant form demonstrating the minimum Local Government Areas of Opportunity Funding Amount outlined in RFA 2019-113; The Development Location Point and latitude and longitude coordinates for all scattered sites stated at question 5. of Exhibit A for the proposed Development must be located on the same site(s) as the Application submitted in RFA 2019-113. These coordinates do not need to be identical to the Application submitted in RFA 2019-113. All entities that are Principals for the Applicant and Developer(s) disclosed on the Principal Disclosure Form submitted for the proposed Development and the Application submitted in RFA 2019-113 must be identical; and The Application submitted in RFA 2019-113 was not invited to enter credit underwriting. Florida Housing scored Madison Oaks East, Madison Oaks West, and Madison Grove as qualifying for all requirements of the 2019-113 Preference except for the requirement that “[a]ll entities that are Principals for the Applicant and Developer(s) disclosed on the Principal Disclosure Form submitted for the proposed Development and the Application submitted in RFA 2019-113 must be identical.” (Identical Principals Requirement). The Principals disclosed on the Principals Disclosure Form for Madison Oaks West, Madison Oaks East, and Madison Grove in RFA 2019- 113 were identical to the Principals disclosed in the applications submitted for RFA 2020-201. The plain language of the RFA only requires that the “entities that are Principals for the Applicant and Developer(s) be identical.” The plain language of the RFA does not require that the Applicant and Developer entities be identical to those listed in the 2019-113 application. Madison Oaks West, Madison Oaks East, and Madison Grove met the requirements for the 2019-113 preference. However, even though Madison Oaks East, Madison Oaks West, and Madison Grove are eligible for the 2019-113 Preference, they would not be selected for funding under the terms of the RFA. The Villages Florida Housing determined that The Villages Application is eligible and, pursuant to the terms of the RFA, The Villages has been preliminarily selected for funding. During scoring, Florida Housing reviewed the Villages’ Zoning Form and determined that it met the requirements of the RFA to demonstrate appropriate zoning. Madison Oaks East, Madison Oaks West, and Madison Grove alleged in their Petitions that The Villages failed to demonstrate Ability to Proceed and appropriate zoning as required by the terms of the RFA. Prior to hearing, Madison Oaks West, Madison Oaks East, and Madison Grove withdrew their challenge to The Villages’ eligibility for funding. However, should Florida Housing determine, as recommended, that Panama Manor’s Grant Form did not demonstrate a funding commitment from Panama City, then Fletcher Black would receive funding as opposed to The Villages and Pinnacle at Hammock Springs.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Housing Finance Corporation enter a final order as to Case No. 21-0515BID, finding that Fletcher Black is eligible for the LGAO Designation, and awarding funding to Fletcher Black, subject to the successful completion of credit underwriting; that with respect to Case Nos. 21-0516BID, 21-0517BID, and 21-0518BID, finding that Madison Oaks East, Madison Oaks West, and Madison Grove are eligible for the 2019-113 Preference, but are not selected for funding; and with respect to Case No. 21-0520BID, finding that the decision to award funding to Rosemary Place was not clearly erroneous, and the error in its application was a minor waivable irregularity. DONE AND ENTERED this 14th day of April, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: J. Timothy Schulte, Esquire Zimmerman, Kiser & Sutcliffe, P.A. 315 East Robinson Street Post Office Box 3000 (32802) Orlando, Florida 32801 Lawrence E. Sellers, Jr., Esquire Holland & Knight, LLP Suite 600 315 South Calhoun Street Tallahassee, Florida 32301 Michael P. Donaldson, Esquire Carlton Fields, P.A. Suite 500 215 South Monroe Street Tallahassee, Florida 32302 Corporation Clerk Florida Housing Finance Corporation Suite 5000 227 North Bronough Street Tallahassee, Florida 32301-1329 S LISA SHEARER NELSON Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of April, 2021. M. Christopher Bryant, Esquire Oertel, Fernandez, Bryant & Atkinson, P.A. Post Office Box 1110 Tallahassee, Florida 32302-1110 Hugh R. Brown, General Counsel Florida Housing Finance Corporation Suite 5000 227 North Bronough Street Tallahassee, Florida 32301-1329 Betty Zachem, Esquire Florida Housing Finance Corporation Suite 5000 227 North Bronough Street Tallahassee, Florida 32301 Tiffany A. Roddenberry, Esquire Holland & Knight, LLP Suite 600 315 South Calhoun Street Tallahassee, Florida 32301
The Issue The issue for disposition is whether Respondent violated Article II, Section 8(e), Florida Constitution, by personally representing his private employer for compensation before the Orlando-Orange County Expressway Authority while serving as a State Senator. After admissions and stipulation of the parties, the single issue of law and fact is whether the Orlando-Orange County Expressway Authority is a "state agency" for purposes of Article II, Section 8(e), Florida Constitution.
Findings Of Fact Respondent, George Stuart, served as State Senator from District 14, the Orlando area, from 1978 until November 1990. On September 22, 1986, Respondent was hired by the brokerage firm, Drexel Burnham Lambert, to serve in the company's municipal bond finance division. He served as vice president of the division until December 29, 1989. Respondent was compensated for his services, which services included calling on clients to explain how Drexel Burnham could assist in their bond issues and to urge the issuer to select Drexel Burnham as an underwriter. The Orlando-Orange County Expressway Authority (OOCEA, or Authority) was created in 1983 by section 348.753, F.S. It has five members, three of whom are appointed by the Governor; the fourth member is chair of the Orange County Board of County Commissioners, and the fifth member is the district secretary for the Department of Transportation for the district which includes Orange County. OOCEA is limited in its operation to Orange County. Its budget has no legislative oversight and it is not operated with state funds appropriated to meet its budget. Tolls collected by the Authority are used for construction, financing and operation of its expressway system. Once built, the roads are operated and maintained by the Department of Transportation. OOCEA members are required to file financial disclosure statements. OOCEA participates in the Florida Retirement System. Bonds issued by the OOCEA are tax exempt. The Authority's General Counsel, J. Fennimore Cooper, advised that the Florida Constitution requires legislative approval for revenue bond issues; and in 1986, he sent a letter to Respondent seeking assistance in obtaining the necessary appropriations proviso language to approve various projects of the Authority. In 1988 when OOCEA decided to issue bonds to finance its Central Connector Project, legislative approval was again required and the necessary language was provided by its General Counsel to its registered lobbyist, Bobby Hartnett. The OOCEA received the legislative approval for the project during the Special Session on June 8, 1988. Chapter 88-557, Laws of Florida, containing appropriations act proviso language, includes this section: Section 59. The Orlando-Orange County Ex- pressway Authority is hereby authorized to construct the Central Connector and the Southern Connector of the Expressway System as part of the authority's 20-year capital projects plan. These extensions shall each be financed with revenue bonds issued by the Division of Bond Finance of the Department of General Services on behalf of the author- ity pursuant to s. 11, Art. VII of the State Constitution and the State Bond Act, ss. 2156.57-215.83, Florida Statutes. Respondent met with the chairman of the OOCEA to express Drexel Burnham's interest in serving as a co-managing underwriter for the issue and to ask for a request for proposal to which Drexel Burnham could respond. Respondent made a similar visit to the executive director of the Authority. A September 23, 1988 contact by Respondent was specifically regarding the Central Connector bond issue. On August 12, 1988, Respondent, as vice president of the Municipal Bond Finance Division and Ander Crenshaw, as first vice president, submitted Drexel Burnham's "Proposal to Serve as Co-Managing Underwriter for the Central Connector Project" to the Authority. Respondent received compensation for all representations he made for Drexel Burnham, including this one. The Authority received twenty-two proposals and ultimately selected nine co-managers, one of which was Drexel Burnham. Drexel Burnham co-managed a small percent of the issue and received $59,940 total compensation. The total amount of the bond issue was $140,600,000.00. The Department of General Services, Division of Bond Finance, served as agent for the OOCEA's 1988 bond issue. In his contacts with OOCEA, Respondent did not consider there was any ethical proscription. He avoided Cabinet-level bond issues and called on cities, hospital districts, or airport authorities. He considered OOCEA a similar local agency.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Commission on Ethics issue its Final Order and Public Report finding that Respondent, George Stuart, violated Article II, Section 8(e), Florida Constitution, by representing Drexel Burnham Lambert before the Orlando-Orange County Expressway Authority for compensation while serving as State Senator. DONE AND ENTERED this 10th day of August, 1993, in Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of August, 1993. COPIES FURNISHED: COPIES FURNISHED: Virlindia Doss, Esquire Department of Legal Affairs The Capitol, PL-01 Tallahassee, Florida 32399-1050 Dexter Douglass, Esquire Post Office Box 1674 Tallahassee, Florida 32302-1674 Bonnie Williams, Executive Director Ethics Commission Post Office Box 6 Tallahassee, Florida 32302-0006 Phil Claypool, General Counsel Ethics Commission Post Office Box 6 Tallahassee, Florida 32302-0006
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found: During the development stage of a condominium project, known as Lake Villas Condominium, in Altamonte Springs, Florida, First Federal Savings and Loan of Orlando foreclosed on some forty (40) units of the project. At that time, approximately in November of 1975, thirty-one (31) units already had fee- simple owners or were under a lease/purchase option and they were not involved in the foreclosure proceedings. Mr. David McComb, a vice-president and mortgage loan officer with First Federal Savings and Loan of Orlando, was given the responsibility of assuring the completion of the remaining units, selling the units and setting up a homeowners' association for the Lake Villas Condominium. The petitioner Lake Villas Condominium Association's five-position board of directors was originally comprised of three members who were personnel of First Federal Savings and Loan of Orlando, so that First Federal would have majority control at a time when it held the ownership to the majority of the units. In June of 1976, thirty-seven of the seventy-one units had been sold to individuals. Thereafter, the composition of the petitioner's board of directors changed and the individual-unit owners held the majority of the five positions. Mr. McComb, as a representative of First Federal Savings and Loan of Orlando, remained on the board of directors and continued First Federal's attempts to sell the remaining unsold units. First Federal retained a sales representative who lived in one of the condominium units, operated her sales office from one of the vacant units owned by First Federal and was paid a real estate commission when she sold a unit. The sales contract on the last of the units owned by First Federal was closed on December 12, 1977. Prior to mid-1976, the Florida Power Corporation account for seven or eight common element meters was in the name of First Federal Savings and Loan of Orlando, doing business as Lake Villas Condominium Association, and the billing statements were mailed to the Orlando office of First Federal Savings and Loan. In June or July of 1976, after the majority of units had been purchased by individual owners and majority control of the board of directors was obtained by the individual owners, Mr. McComb of First Federal placed a telephone call to the respondent's Winter Park office. The purpose of this call was to inform respondent that First Federal wanted the account name and address for the seven or eight meters changed and to inform respondent that the Lake Villas Condominium Association had taken over responsibility for the accounts. Mr. McComb spoke on the telephone to a female who handled commercial accounts for the respondent's Winter Park office and informed her that he wanted the name of First Federal Savings and Loan taken off the account and the bills to be mailed to the Lake Villas Condominium Association at a post office box in Altamonte Springs. The female to whom Mr. McComb spoke took down the information regarding the account numbers and change of billing names and addresses, and told him she would take care of it. Mr. McComb did not inquire about a rate adjustment, and no discussion was had concerning rates for the seven or eight meters. Following the June or July, 1976, discussion between Mr. McComb and a female at the respondent's Winter Park office concerning a change in billing name and address, the billing statements were sent and received at the post office address of the Lake Villas Condominium Association, Inc. in Altamonte Springs. Approximately one year later, in mid-1977, Mr. McComb was forwarded some delinquent notices on the seven or eight meters. They had originally been sent to the petitioner's post office box in Altamonte Springs, but were thereafter forwarded to Mr. McComb's attention at First Federal. Mr. McComb noticed that, although the post office address had been changed, the accounts were still in the name of First Federal Savings and Loan of Orlando. He then placed another telephone call to the respondent's Winter Park office, spoke with a female in the commercial department and requested that the name of First Federal Savings and Loan of Orlando be removed from the account and that the Lake Villas Condominium Association, Inc. be inserted as the new-named customer. The female informed Mr. McComb that this request would be taken care of and that nothing further need be done. No inquiry by Mr. McComb or discussion was had concerning a rate adjustment for these seven or eight meters. Electricity for the individual living units of the Lake Villas Condominiums are separately metered. In addition, there are seven or eight separately billed meters which service the common areas of the condominium, such as the two swimming pools, the internal street and sidewalk lighting, the clubhouse and small post lamps for an open green area. From at least April of 1979 through October of 1980, no commercial activity occurred in any of the condominium units. In April of 1979, Mr. O. K. Armstrong became the manager of the Lake Villas Condominiums and was responsible for the association's financial transactions. He noticed in May of 1979 that the bills for the seven or eight subject meters contained the name of First Federal Savings and Loan of Orlando, though they did list the condominium's post office box number for the address. After speaking with Mr. McComb about the matter, Mr. Armstrong telephoned a Mr. Harbour at the respondent's Winter Park office. It was during this discussion that petitioner, through Mr. Armstrong, learned that the seven or eight common element meters might qualify for a residential, as opposed to the higher commercial, rate. Thereafter, the rates for the seven or eight meters were changed by Florida Power Corporation from commercial to residential. The request of Mr. Armstrong for a retroactive application of those residential rates to January 1, 1976, which would amount to a refund of all amounts paid in excess of the residential rates from that date, was denied by Mr. Harbour, respondent's office manager in Winter Park. During the hearing, the petitioner verbally amended the request for retroactive application of the residential rate from January 1, 1976, to July of 1976.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED that the petition filed by the Lake Villas Condominium Association, Inc. be DISMISSED. Respectfully submitted and entered this 17th day of June, 1981, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of June, 1981. COPIES FURNISHED: James D. Mapp Hunter, Pattillo, Marchman, Mapp and Davis Post Office Box 340 Winter Park, Florida 32790 Blair W. Clack Assistant Counsel Post Office Box 14042 St. Petersburg, Florida 33733 Arthur Shell Public Service Commission Legal Department 101 East Gaines Street Tallahassee, Florida 32301 Steve Tribble, Clerk Florida Public Service Commission 101 East Gaines Street Tallahassee, Florida 32301
Conclusions This cause is before the Department of Community Affairs on an Order Closing File, a copy of which is appended hereto as Exhibit A, and on adoption of an ordinance repealing and rescinding Ordinance 2008-34, appended hereto as Exhibit B. On August 26, 2008, Respondent Clay County adopted an amendment to its comprehensive plan by Ordinance No. 2008-34 (Amendment). The Department reviewed the Amendment, determined that Ordinance No. 2008-34 did not meet the criteria for compliance set forth in Section 163.3184(1) (b), Florida Statutes, and caused to be published a Notice of Intent to find the Amendment not “in compliance.” The Department then instituted FINAL ORDER No. DCA09-GM-242 this administrative proceeding against the County pursuant to Section 163.3184(10), Florida Statutes. On June 9, 2009, by adopting Ordinance No. 2009-23, the County repealed and rescinded the not “in compliance” Ordinance No. 2008-34. By virtue of this rescission, the instant controversy has been rendered moot and this proceeding must be dismissed. See Department of Highway Safety & Motor Vehicles v. Heredia, 520 So. 2d 61 (Fla. 3d DCA 1988) (dismissing case on appeal as moot where suspension of driver’s license was rescinded by the Department) .
Other Judicial Opinions REVIEW OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030 (b) (1)®) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT'S AGENCY CLERK, 2555 SHUMARD OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100, WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. FINAL ORDER No. DCA09-GM-242 CERTIFICATE OF FILING AND SERVICE I HEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Community Affairs, and that true and correct copies have been furnished by U.S. il to each of the persons listed below on this day of , 2009. Paula Ford Agency Clerk By U.S. Mail The Honorable Bram D. E. Canter Administrative Law Judge Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 J. A. Spejenkowski, Esquire Phillip Quaschnick, Esquire Office of the Attorney General PL 01- The Capitol Tallahassee, Florida 32399-3000 Marcia Parker Tjoflat, Esquire Pappas, Metcalf, Jenks & Miller, P.A. 245 Riverside Avenue, Suite 400 Jacksonville, Florida 32202 Mark H. Scruby, Esquire Clay County Attorney Post Office Box 1366 Green Cove Springs, Florida 32043-1366 Col. Elizabeth Masters, Esquire Department of Military Affairs Florida National Guard PO Box 1008 St. Augustine, Florida 32085-1008 By Hand Delivery: Lynette Norr, Esquire Assistant General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 FINAL ORDER No. DCA09-GM-242 Ordinance No. 2009- 23 AN ORDINANCE OF THE BOARD OF COUNTY COMMISSIONERS OF CLAY COUNTY, FLORIDA, REPEALING AND RESCINDING ORDINANCE NO. 2008-34 ADOPTED ON AUGUST 26, 2008, WHICH ORDINANCE NO. 2008-34 HAD AMENDED THE CLAY COUNTY 2015 COMPREHENSIVE PLAN (THE ‘PLAN’) INIFIALLY ADOPTED PURSUANT TO THE REQUIREMENTS OF SECTION 163.3184, FLORIDA STATUTES, UNDER ORDINANCE NO. 92-03, AS SUBSEQUENTLY AMENDED, BY ADDRESSING LAND USE COMPATIBILITY WITH CAMP BLANDING (FUTURE LAND USE ELEMENT GOAL 2 AND ITS OBJECTIVES AND POLICIES); PROVIDING DIRECTIONS TO THE CLERK OF THE BOARD; PROVIDING AN EFFECTIVE DATE. WHEREAS, on January 23, 1992, the Board of County Commissioners of Clay County, Florida (the “Board”), adopted Ordinance No. 92-03 which adopted the Clay County 2001 Comprehensive Plan, which as subsequently amended is now referred to as the Clay County 2015 Comprehensive Plan (the “Plan”); and, WHEREAS, Section 163.3187, Florida Statutes, provides for the amendment of an adopted comprehensive plan; and, WHEREAS, Section 163.3184, Florida Statutes, outlines the procedure for the adoption of comprehensive plans or amendments thereto; and, WHEREAS, Clay County Board of County Commissioners adopted an amendment to the Plan on August 26, 2008, in Ordinance No. 2008-34 (the “Amendment”); and, : WHEREAS, ihe Department of Community Affairs (“DCA”) issued a Statement of Intent (the “SOI”’) and a Notice of Intent to find the Amendment adopted under Ordinance No. 2008-34 Not in Compliance on October 16, 2008; and, WHEREAS, DCA filed a Petition with the Division of Administrative Hearings, Case No. 08-5493GM on November 4, 2008 (the “Petition”), seeking a determination, consistent with the SOL, that the Amendment adopted under Ordinance No. 2008-34 is Not in Compliance within the meaning of Chapter 163, Part I, Florida Statutes, and Rule 9J-5, Florida Administrative Code; and, WHEREAS, as of the date of the adoption of this ordinance, the Petition remains pending; and, WHEREAS, by virtue of the pendency of the Petition, the Amendment has not taken effect; and, WHEREAS, the Board of County Commissioners desires hereby to provide for the repeal of Ordinance No. 2008-34 before the Amendment adopted thereunder becomes effective. Be It Ordained by the Board of County Commissioners of Clay County: Section 1, | Ordinance No. 2008-34 addressing Future Land Use Element Goal 2 and its Objectives and Policies is hereby repealed and rescinded. Section 2. _‘iIf any provision or portion of this ordinance is declared by any court of competent jurisdiction to be void, unconstitutional or unenforceable, then all remaining provisions and portions of this Ordinance shall remain in full force and effect. Section 3, | The Clerk of the Board of County Commissioners is authorized and directed within 10 days of the date of adoption of this ordinance to send certified, complete and accurate copies of this ordinance by certified mail, return receipt requested, to the Florida Department of Community Affairs, 2555 Shumard Oak Boulevard, Tallahassee, Florida, 32399- 2100 and the Northeast Florida Regional Planning Council, 9143 Phillips Highway, Suite 350, Jacksonville, Florida 32256, as specified in Section 163.3184(7), Florida Statutes. DULY ADOPTED by the Board of County Commissioners of Clay County, Florida, this 9! day of June, 2009. BOARD OF COUNTY COMMISSIONERS CLAY COUNTY, FLORIDA Wendell D. Davis Its Chairman ATTEST: Thereby certify that this document consisting of page(s] and further identified | as (Midiaaaes, 09.230 8 County\Manager and Clerk of the Sei oF County Co issioners a me and correct copy of the original maintained mm im the custody of Fritz Behring as County Manager and Ex-Officio Clerk of the Board of County Commissio 8s of Clay County, Floridy this_/S_ day of ene 2009” By: : , Deputy Clerk [Not Valid without the scal of the Board]
Findings Of Fact Background Respondent, City of Daytona Beach (City), is a Florida municipal corporation subject to the land use planning requirements of Chapter 163, Florida Statutes. That chapter is administered by respondent, Department of Community Affairs (DCA). The City is responsible for the comprehensive planning for the entire municipality. Its most recent comprehensive plan (Plan) was adopted on May 16, 1990, and was found to be in compliance with the law in July 1991. On October 1, 1992, the City made application for what is known as the LPGA Plan Amendment (plan amendment). Generally, the plan amendment changes land uses and densities on approximately 4,000 acres of land within the City and adds various policies to the Plan. Public hearings on the plan amendment were held on October 22, 1992, April 21, 1993, and May 19, 1993. The plan amendment was adopted on June 2, 1993, and it was found to be "in compliance" by the DCA on July 26, 1993. Petitions challenging the plan amendment were filed in Case No. 93- 4863GM by petitioners, 1000 Friends of Florida and Robert Jenks. 1000 Friends of Florida is a non-profit tax-exempt corporation formed expressly for the purpose of overseeing implementation of Florida's growth management laws at all levels of government. Jenks is a property owner within the City and a member of 1000 Friends of Florida. A petition was also filed in Case No. 93-4864GM by petitioners, Adeline Jones, Marta Perez and Nelson Perez. Those individuals are adults residing within the City. Petitioners contended, among other issues, that the housing element of the plan, which has been revised by the amendment, would not assure the provision of adequate affordable housing within the City. Finally, a petition to intervene in support of the plan amendment has been filed in both cases by intervenors, Patricia Lagoni (Lagoni), as trustee, and Indigo Development, Inc. (Indigo). Lagoni is the trustee for two trusts that own approximately 4,600 acres of land within the City that are the subject of the plan amendment. Indigo is the developer of the trustee's property. The parties have stipulated that petitioners and intervenors are "affected persons" within the meaning of the law and have standing to participate in these proceedings. The Plan The plan is a twenty year long range planning document. It includes and applies to the entire City except for approximately 16,400 acres which has subsequently been annexed into the City limits since the adoption of the plan. The portions adopted by ordinance are goals, objectives, and policies; the Neighborhood Development Policies; Capital Improvement Element Implementation; Monitoring, Updating and Evaluation Procedures (Appendix); the Future Land Use Map Series; the Future Traffic Circulation Map; the Future Mass Transit Map; and the Future Aviation Facilities Map. Because a local government may choose not to adopt support documents such as data and analysis, the City did not adopt by ordinance the supporting data and analysis to the plan. The plan support documents include population projections through the year 2010. The population projections used in support of the plan are based on the 1980 U. S. Census. A census is an estimate of population at a particular time while a population projection is an analysis using estimates of past existing populations, such as a census, to predict future population. When the plan was prepared and adopted, the City was required to rely on the 1980 U. S. Census. At that time, the City's Evaluation and Appraisal Report (EAR) was due in 1995. Based on a 1993 change in the law, the EAR is now due in 1997. Under the Department's interpretation of the Act, which is found to be reasonable, a local government need not apply the 1990 U. S. Census until it submits its EAR. Therefore, between the adoption of the original plan and submittal of the EAR, a local government may amend its plan without having to base the amendment on a newly released U. S. Census. Such a comprehensive evaluation and updating of the plan and its data source is not required until the EAR is due because it would be a very exhaustive and expensive burden on local governments. The existing land use map is a support document of the plan. It generally depicts how land is used in various parts of the City at the time of transmittal of the proposed plan and includes six classifications: residential, vacant/undeveloped, commercial, industry, government and institution, and parks and recreation. On the other hand, a future land use map series is an adopted portion of the plan which generally depicts where the local government wants to have particular land uses by the end of its planning period. The future land use classifications include the following broad categories of land uses: residential, commercial, industry, government and institutional, parks and recreation, and miscellaneous. It is noted that the future land use map has no "vacant" classification since "vacant" is not an actual use which can be assigned a density or intensity and direct future development. The plan amendment Adoption and contents On October 1, 1992, Indigo made application for the plan amendment. Public hearings were held for the review and discussion of the amendment on October 22, 1992, and resolution number 92-460 was subsequently enacted by the City authorizing the proposed amendment to be forwarded to the DCA for review. After the amendment was submitted to the DCA, the agency conducted an in-house review of the amendment and thereafter issued its objections, recommendations and comments (ORC) on February 19, 1993. That document contains the DCA's objections and comments as well as more than twenty recommendations which address those concerns. A notice of intent was published by the DCA to advertise that fact. After considering the ORC, the City made various changes in its proposed plan amendment and issued its response to the ORC on March 24, 1993. Also, it conducted further public hearings on April 21 and May 19, 1993. On June 2, 1993, the City adopted plan amendment 93D2 by Ordinance No. 93-219. On July 8, 1993, the amendment was found by the East Central Florida Regional Planning Council (ECFRPC) to be consistent with its Comprehensive Regional Policy Plan. Finally, on July 26, 1993, the amendment was found by the DCA to be in compliance. The plan amendment (a) amends the future land use map to provide new classifications for approximately 4,000 acres within the City, (b) includes some textual changes to the future land use, conservation, coastal management, traffic, and housing elements, and (c) changes the future traffic circulation map in certain respects. The acreage in question is located mostly to the west of I-95 except for some portions east of I-95 where 11th Street crosses the Interstate. The property is intended to be developed by Indigo as a "world- class golf resort and accompanying planned community." Prior to the amendment, the predominant land use category on the property was Level 1 residential with some designation for government or institutional use and retail commercial. As originally proposed by the City, the amendment reduced Level 1 residential acreage, increased Level II residential acreage, and created new categories of passive park/buffer area, interchange commercial and mixed use. After the DCA issued its criticisms in the form of an ORC, the City revised its amendment by redistributing the future land uses and adding policies to the housing element. The land use changes include a 1,375 acre reduction in Level 1 residential (a single-family residential future land use category with 1 to 8 units per acre) caused by conversion of land to a golf course and dedication of 831 acres for conservation purposes, a 575 acre increase in Level 2 residential (a residential future land use category with 9 to 20 units per acre), and a 98 acre increase in Level 3 residential (a mixed residential/retail category with 21 to 40 residential units per acre), or a net effect of an overall increase in the residential land use density of approximately 4,300 units of higher density housing than that density which existed prior to the plan amendment. The plan amendment proposes a mixed use future land use category to allow a wide range of urban uses, including light industrial, office, tourist accommodations, retail and multi-family residential. In neighborhoods K, S, T and U, a minimum of 12 percent and a maximum of 30 percent of the total area designated as mixed use must be developed as residential with a minimum of 15 dwelling units per acre and a maximum of 25 dwelling units per acre. Increased density on the property from both the increased Levels 2 and 3 land use designations, as well as the mixed use residential requirements, provide opportunities that foster increased availability of affordable units. Housing element Every comprehensive plan must contain a housing element with goals which state the aspirations for where a community wants to be. Goal 1 of the housing element is "to assure the availability of sound and affordable housing for all current and future residents of Daytona Beach." This means that the City will assure the availability of housing for all segments of the population. The housing element must also contain specific objectives for each goal statement. In the original plan, the City adopted Objective 1.1 (on page 5.37 of the plan) entitled "New Construction." It was not revised by the amendment. That objective reads as follows: Assist the private sector in providing 6,400 additional units of diversified (and thus affordable) housing types by 1995. The amendment adds seven policies to the housing element, all relating to affordable housing. In the context of a comprehensive plan, a policy is interpreted to mean the specific actions the local government will use to implement its objectives. Proposed policy 1.3.6 reads as follows: Policy 1.3.6 The City, through its land development regulations, shall establish a mechanism that permits density bonuses of at least 10 percent for projects that provide very low and low income housing units, provided that the increased density is consistent with all other goals, objectives and policies of this plan including, but not limited to, environmental and concurrency goals. Under this proposed policy, developers are encouraged to construct affordable housing through the offering of a financial incentive. The incentive, more commonly known as a density bonus, allows them to use a slightly higher density than they otherwise would have. This is a common approach in encouraging affordable housing, and while not an absolute guarantee, the policy does have the effect of encouraging additional affordable housing in the City. Proposed policy 1.3.7 reads as follows: Policy 1.3.7 The City will continue programs to maximize opportunities for private sector involvement in the formation of community-based non-profit organizations to actively participate in the provision of low and moderate income affordable housing. This policy simply reinforces the City's commitment in existing policy 1.3.2. to "continue to use its CDBG funds to provide seed money and technical assistance to non-profit corporations that construct housing for low and moderate income households including HUD 202 elderly housing and State/County housing finance agency bond-funded rental units." Proposed policy 1.3.8 provides as follows: Policy 1.3.8 The City Community Development Department will continue to support community-based non-profit organizations such as Habitat for Humanity in their efforts to provide adequate housing at a cost affordable to low-income residents by providing land that is acquired by the City. This policy reiterates the City's commitment in existing policy 1.3.2 and proposed policy 1.3.7 to supporting non-profit organizations which participate in providing affordable housing to low and moderate income households. Although the policy does not add any new assurances in providing affordable housing, it does not adversely affect the provision of affordable housing. No evidence was submitted to show that this policy is inconsistent with any requirements applicable to this proceeding. The next proposed policy is 1.3.9. It reads as follows: Policy 1.3.9 The City shall strive to participate in the State Housing Incentives Partnership Program as specified in the 1992 William Sadowski Affordable Housing Act. The City will follow its Local Housing Assistance Ordinance which establishes a local housing partnership, administrative responsibilities, and a local Housing Advisory Committee. This policy reflects a new affordable housing program which was enacted by the state subsequent to the plan's adoption. The more credible evidence reflects that the policy will have a positive impact on affordable housing. Proposed policy 1.3.10 provides that the City "will encourage the County to provide impact fee waiver programs for schools and transportation as an incentive for affordable housing." In Volusia County, impact fees are a significant cost of housing. Seventy percent of the impact fees applied in the City are County assessed. Under the proposed policy, the City is attempting to persuade the County to provide certain impact fee waivers for affordable housing. Proposed policy 1.3.11 reads as follows: Policy 1.3.11 By 1995, the City shall complete an assessment of affordable and special housing needs utilizing detailed housing data from the 1990 U. S. Census and an assessment of target areas and population segments representing priority affordable housing needs as a basis for establishing specific quantifiable near and long-term affordable housing programs. Results of the assessment shall be used to update the Comprehensive Plan's affordable housing policies. Although this policy will not have the direct effect of producing affordable housing, there is no evidence that the policy is inconsistent with any requirements at issue in this proceeding. Finally, the City has proposed a new policy 1.3.12, which reads as follows: Policy 1.3.12 The City will continue to be active in housing isues through the Community Development Department in the following ways: providing informational and technical asistance to the public on affordable housing programs, completing housing inventories and assessments, working to increase local utilization of state and federal funding programs, and coordinating with the Redevelopment Department. The City will annually update the Comprehensive Housing Affordability Strategy (CHAS) in compliance with U.S. HUD guidelines in conjunction with the State of Florida CHAS. This policy adds nothing new to the plan. It simply reiterates commitments expressed in other housing element policies. Again, no evidence was submitted to show that the policy is inconsistent with any other requirements at issue. As noted earlier, objective 1.1 is to "assist the private sector in providing 6,400 additional units of diversified (and thus affordable) housing types by 1995." The derivation of the 6,400 units is found on page 5.25 of the housing element of the plan. In general terms, the number of units was derived by taking the population of the City in 1980, updating that figure through 1987, and then projecting the number of households by income category in the year 1995. Of the 6,400 units, 2,601 are projected for the low and very low income household categories. Low income is defined as being 80 percent of the median income ($31,000) for Volusia County, or $24,800, while very low income is defined as being one-half of median income, or $15,500. Tables 5-20 and 5-21 of the data and analysis support this objective. Table 5-20 projects housing needs for the City by income category from 1987 to 1995. Table 5-21 projects housing need by income category for the years 1995 through 2000. The tables break the population into the following income categories: very low, low, moderate, middle, and upper and high. The data and analysis concludes that availability of land is not a concern with meeting the projected need for residential units through the year 2000. Rather, the principal concerns center around the current lack of federal and state subsidy programs for housing construction, and the fact that the City is already shouldering more than its regional fair share. As to this latter concern, the City now provides at least 75 percent of the public housing in Volusia County. The amendment, however, provides more opportunities for the new construction of affordable housing units. Also, the mixed use category and its location near retail and office uses and arterial roads will provide a greater diversified housing stock. Between the years 2000 and 2010, the City will need to annex additional acreage to accommodate the anticipated population growth for that period. Since the plan adoption, however, the City has annexed approximately 16,400 acres of land west of I-95 belonging to Indigo. The concept of "filtering" in relation to affordable housing is that when a new house is built, an existing household will move into that house and vacate a less expensive house. Filtering is discussed in the plan's data and analysis as a solution to providing the needed additional units for very low and low income households projected in Tables 5-20 and 5-21. The plan assumes that filtering is operative in the City, and the evidence shows that filtering does in fact operate as a source of affordable housing within the City. The City uses a large portion of its $1.2 million in federal community block grants in assisting low and very low income residents to rehabilitate existing substandard housing. The City also employs a down payment assistance program to aid in the filtering process. This program consists of homeowner education and grants to low and very low income individuals for down payments on the purchase of an existing home, thereby enabling the individual to qualify for and successfully purchase existing housing stock. The program has not had any difficulty in finding housing stock for purchase by its clients. Finally, the City recently obtained an additional $1 million award of federal Housing Opportunities for People Everywhere (HOPE) funds for use in its rehabilitation and down payment assistance programs. While it is not possible to identify the location of future affordable housing on the future land use map, local government can create favorable conditions for affordable housing on the map by utilizing densities and locations. Here, the City has done so. The data and analysis reveal increased minimum floor densities to 15 units per acre minimum and a 25 units per acre maximum of multi-family housing and the location of land uses adjacent to arterial roads of 11th Street and the municipal stadium. They also reveal that the nature of mixed use categories with increased densities could result in three-story, more affordable apartment complexes. Finally, the amendment provides an additional forty-four acres of Level III residential in the area parallel to Williamson Boulevard, south of 11th Street, and increases sites at higher residential densities, and thus increases opportunities for affordable housing. Therefore, it is found that the plan amendment does not preclude the devevopment of affordable housing. b. Data and analysis used in the amendment All elements of a comprehensive plan must be based on "appropriate data." According to Rule 9J-5.005(2)(c), Florida Administrative Code, that data must be taken from existing data sources and should be the "best available existing data." As to population data, Rule 9J-5.005(2)(e), Florida Administrative Code, requires comprehensive plans to be based on resident and seasonal population estimates and projections provided by the University of Florida, Bureau of Economic and Business Research, the Executive Office of the Governor, or generated by the local government. Finally, where data are relevant to several elements, Rule 9J-5.005(5), Florida Administrative Code, requires that "the same data shall be used, including population estimates and projections." The City has adhered to each of these requirements, and it is found that the plan amendment is based on the best available data and analysis. Population projection information is used in several plan elements. If the 1990 Census was used to support one element, as petitioners suggest it should have been, that same census must be used to support the other elements. Stated another way, the chosen population estimates and projections must be used consistently throughout the entire plan. Relying on different censuses in different elements would render the plan internally inconsistent. Contrary to petitioners' assertion, there is no specific requirement that a local government update its population estimates and projections each time it amends its plan. Such a requirement would impose an unreasonable burden on local governments without advancing any of the purposes of the Act. Petitioners failed to present any compelling reason that the 1990 Census should be the underlying basis for plan amendments before the EARs are due. The fact that the 1990 Census was available in its raw form in the fall of 1991 is not persuasive to overcome the specific requirements of Rule 9J-5.005(2)(c), Florida Administrative Code, as to the approved sources of population estimates and projections. Therefore, it is found that the City was not required to use the 1990 Census in support of its amendment. The LPGA property is located within Zone C, one of three zones designated in the future land use element. Of the 3,995 available vacant developable residential acreage, 2,740 acres were originally allocated to Zone C within the City. Under the plan amendment, the available residential land in Zone C has been reduced to 1,313 acres. The reduction of residential land by the amendment reduces the overall residential developable acres to 2,838. The City's total residential acreage need is 2,144 acres. Of that 2,144 acres, approximately 876 acres are required for very low and low income housing. The data indicates that an additional 694 excess acres are available to accommodate affordable housing needs within the City. When added to the 876 acres previously required for very low and low income housing, a total of 1,570 acres are available to accommodate the very low and low income affordable housing needs within the City. The data and analysis also indicate that a ratio of 1.8 or 180 percent of the need for affordable housing acreage is being met by the City. The more land that is made available by the City increases the opportunity for market forces to work to provide housing. The ratio of 1.8 is further increased by the recent annexation of the Indigo property of approximately 16,400 acres. Not including the recently annexed property, 46 percent of the total vacant residential acreage in the City is in the LPGA property. The LPGA Development of Regional Impact Intervenors' property which is the subject of this amendment is intended to be the future headquarters site of the Ladies Professional Golf Association (LPGA). If completed as originally planned, it will be the size of the neighboring municipality of Holly Hill. The development is a public-private joint venture between the City and intervenors, and the City and State have pledged $23 million of public money for the project. In conjunction with the project, a development of regional impact (DRI) development order was adopted by the City on August 18, 1993. Petitioners did not appeal that order. A DRI is a development order issued by a local government. It pertains to approval for a specific type of development requested by a developer for a particular site. In contrast, a comprehensive plan is a different type of document altogether which considers long range planning for an entire jurisdiction, taking into account the cumulative effect of many developments. DRIs are subject to the requirements of Chapter 380, Florida Statutes. One of the requirements for a DRI is that it be consistent with the requirements of the local government's comprehensive plan, a determination that is separate and apart from that undertaken here. Conversely, comprehensive plans and amendments must comply with Subsection 163.3184(1)(b), Florida Statutes, which defines "in compliance" as being consistent with Sections 163.3177, 163.3178, and 163.3191, Florida Statutes, the state comprehensive plan, regional policy plan, and Chapter 9J-5, Florida Administrative Code. A plan amendment does not have to be consistent with chapter 380 to be "in compliance." A DRI development order does not guarantee that the site will be developed or developed as approved. For example, the development order may be amended through the substantial deviation process to allow for different types of development or increased development over certain thresholds. Then, too, a developer may add up to ten percent more residential units without going through the substantial deviation process. Finally, a development order may expire during the planning period without finishing or even beginning construction. In reviewing a plan amendment, the whole range of development possibilities must be evaluated regardless of any development order issued for the affected land. What a DRI development order, or any other development order, allows to be constructed on a parcel of land which is the subject of a plan amendment is therefore irrelevant for amendment review purposes. Applications for DRI approval are prepared and submitted to the DCA by the developer. These applications are submitted in response to a set of criteria that differ from those applicable to a plan amendment. It is true, of course, that some information provided by a developer in support of a DRI request may be relevant to the review of a plan amendment. Here, however, the information regarding income range of employees and price range of housing anticipated to be constructed on the project site is speculative and should not guide the scope of review for a long range planning document. Indeed, it was not credibly shown how this information applies to the plan or any requirements in this proceeding. Therefore, petitioners' reliance on various projections used in the DRI application for incremental development approval and other DRI documents is misplaced and not relevant to this action. The amendment's internal and external consistency Rule 9J-5.005(5), Florida Administrative Code, requires comprehensive plan elements to be consistent with each other. The same rule requires the future land use map to reflect the goals, objective and policies within all elements of a plan. When amending a plan, consistency is maintained by using data consistently throughout the plan. In order to be internally consistent, the City was required to use 1980 census data for the plan amendment, as it did here. By adding policies to the housing element, the City has assisted with the implementation of objective 1.1 of the housing element. By changing the land use designations on the future land use map, the City has effectively increased the opportunity for higher density housing. Finally, the plan amendment's changes to the future land use element are consistent with and further objective 1.1 of the housing element. Accordingly, the plan amendment is found to be internally inconsistent. The state comprehensive plan is found in Chapter 187, Florida Statutes. The appropriate regional policy plan in this case is the East Central Florida Comprehensive Regional Policy Plan. The DCA does not interpret Subsection 163.3177(10(a), Florida Statutes, as requiring a plan or amendment to be consistent with every policy in the state or regional plans. If an inconsistency with an individual policy exists, that policy is not viewed in isolation but rather is considered in the context of the complete state or regional plan. While an amendment may frustrate the achievement of a policy in the state or regional plan, it may further the local government's pursuit of another policy, thus rendering the amendment to be consistent with the state or regional plan construed as a whole. Petitioners allege that the amendment is inconsistent with state plan goals 5, 8, 10 and 16 and with regional policy plan issues 19, 37, 43, 44 and In the joint prehearing stipulation, they also make reference to regional policies 19.1(1), 19.2 and 19.3(4) and state plan provisions found in Subsections 187.201(5)(a), (b)1. and (b)3., Florida Statutes. They did not, however, present any evidence describing how the plan amendment is inconsistent with the foregoing goals, issues or statutes. To the contrary, the more credible and persuasive evidence supports a finding that the amendment is consistent with both the state and regional plans. Therefore, the plan amendment is in compliance. Attorney's fees Intervenors, but not the DCA or City, have requested sanctions on the theory that the petition initiating Case No. 93-4863GM was filed for an improper purpose within the meaning of Subsections 120.57(1)(b)5., 120.59(6)(a), and 163.3184(12), Florida Statutes. The request is grounded principally on the notion that because the initial petition of 1000 Friends of Florida and Robert Jenks contains allegations pertaining to environmental issues, and no proof was submitted at final hearing as to those claims, the undersigned should draw an inference that the petition was filed for an improper purpose. Having cosidered the totality of the record, the undersigned concludes that insufficient evidence exists to make such an inference. Similarly, there is an insufficient record basis to find that petitioners raised the issue of affordable housing merely to cause unnecessary delay, or that 1000 Friends of Florida's conduct as a whole constitutes "economic harrassment." Therefore, the request for sanctions is denied.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Community Affairs enter a final order finding the City's plan amendment to be in compliance with the law. DONE AND ENTERED this 17th day of May, 1994, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of May 1994. APPENDIX Petitioners: Although the undersigned has considered petitioners' joint proposed order in the preparation of this recommended order, he has not made specific rulings on proposed findings of fact since the proposed order was untimely and it violated Rule 60Q-2.031(3), Florida Administrative Code. Respondents: 1. Partially accepted in finding of fact 3. 2-3. Partially accepted in finding of fact 1. Partially accepted in finding of fact 3. Partially accepted in findings of fact 1 and 4. Partially accepted in finding of fact 5. 7-8. Partially accepted in finding of fact 6. 9. Partially accepted in finding of fact 5. 10-11. Rejected as being unnecessary. 12. Partially accepted in findings of fact 4 and 29. 13. Rejected as being unnecessary. 14-16. Partially accepted in finding of fact 29. 17-18. Partially accepted in finding of fact 31. 19. Partially accepted in finding of fact 30. 20-21. Partially accepted in finding of fact 31. 22. Partially accepted in findings of fact 8 and 9. 23. Partially accepted in finding of fact 9. 24-25. Partially accepted in finding of fact 10. 26. Partially accepted in finding of fact 11. 27-29. Partially accepted in finding of fact 14. 30-31. Partially accepted in finding of fact 17. 32-33. Partially accepted in finding of fact 18. 34-35. Partially accepted in finding of fact 19. 36-37. Partially accepted in finding of fact 20. 38-39. Partially accepted in finding of fact 21. 40-41. Partially accepted in finding of fact 22. 42. Partially accepted in finding of fact 15. 43.-45. Partially accepted in finding of fact 24. 46-47. Partially accepted in finding of fact 26. 48. Partially accepted in finding of fact 27. 49. Partially accepted in finding of fact 35. 50-51. Partially accepted in finding of fact 36. 52. Partially accepted in finding of fact 37. 53. Partially accepted in finding of fact 38. 54-56. Partially accepted in finding of fact 39. 57. Rejected as being unnecessary. 58-59. Partially accepted in finding of fact 43. 60-61. Partially accepted in finding of fact 44. Intervenors: 1-2. Partially accepted in finding of fact 1. 3-7. Partially accepted in finding of fact 3. Covered in preliminary statement. Partially accepted in finding of fact 1. Rejected as being unnecessary. 11-13. Partially accepted in finding of fact 4. 14-15. Partially accepted in finding of fact 5. 16. Rejected as being unnecessary. 17. Partially accepted in finding of fact 6. 18-21. Partially accepted in finding of fact 32. 22-25. Partially accepted in finding of fact 25. 26. Partially accepted in finding of fact 14. 27. Partially accepted in finding of fact 21. 28. Rejected as being unnecessary. 29. Partially accepted in finding of fact 25. 30. Partially accepted in finding of fact 26. 31-32. Rejected as being unnecessary. 33. Partially accepted in finding of fact 34. 34. Partially accepted in finding of fact 27. 35. Rejected as being unnecessary. 36. Partially accepted in finding of fact 7. 37. Rejected as being unnecessary. 38-41. Partially accepted in finding of fact 8. 42-43. Partially accepted in finding of fact 9. 44. Partially accepted in finding of fact 10. 45-49. Partially accepted in finding of fact 11. 50. Partially accepted in finding of fact 12. 51. Partially accepted in finding of fact 13. 52. Partially accepted in finding of fact 29. 53-56. Partially accepted in finding of fact 32. 57. Rejected as being unnecessary. 58-60. Partially accepted in finding of fact 32. 61-64. Partially accepted in finding of fact 33. 65. Partially accepted in finding of fact 11. 66-67. Partially accepted in finding of fact 6. 68. Rejected as being unnecessary. 69-70. Partially accepted in finding of fact 6. 71-77. Partially accepted in finding of fact 28. 78-81. Rejected as being unnecessary. 82-89. Partially accepted in findings of fact 34-39. Rejected as being unnecessary. Partially accepted in finding of fact 14. Partially accepted in finding of fact 15. Partially accepted in finding of fact 16. Partially accepted in finding of fact 14. Rejected as being unnecessary. Partially accepted in finding of fact 25. Rejected as being unnecessary. Partially accepted in finding of fact 14. Partially accepted in finding of fact 24. 100-104. Partially accepted in findings of fact 40-44. 105-106. Partially accepted in finding of fact 5. 107-119. Partially accepted in findings of fact 40-44. 120-160. Rejected. See finding of fact 45. Note - Where a proposed finding has been partially accepted, the remainder has been rejected as being irrelevant, not supported by the evidence, subordinate, unnecessary to a resolution of the issues, or a conclusion of law. COPIES FURNISHED: Linda Loomis Shelley, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Dan R. Stengle, Esquire General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Karen A. Brodeen, Esquire 2740 Centerview Drive Tallahassee, Florida 32399-2100 Richard J. Grosso, Esquire Post Office Box 5948 Tallahassee, Florida 32314 Paola G. Annino, Esquire 308 South Martin Luther King Drive Daytona Beach, Floirda 32014-4872 Frank B. Gummey, III, Esquire Marie S. Hartman, Esquire Post Office Box 2451 Daytona Beach, Florida 32115-2451 James F. Page, Jr., Esquire Thomas A. Cloud, Esquire Michele P. Scarritt, Esquire Post Office Box 2068 Orlando, Florida 32802-3068 Jonathan W. Hewett, Esquire 216 South 6th Street Palatka, Florida 32177-4608 Robert F. Apgar, Esquire Post Office Box 10809 Daytona Beach, Florida 32120
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by Rules 9.110 and 9.190, Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of a Notice of Appeal with the Department of Business and Professional Regulation, Attn: Ronda L. Bryan, Agency Clerk, 1940 North Monroe Street, Suite 92, Tallahassee, Florida 32399-2202 and a second copy, accompanied by the filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the Florida Appellate District where the party resides. The Notice of Appeal must be filed within thirty (30) days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished via Certified U.S. Mail to Oasis Cafe at Key Biscayne, c/o Carlos Flores, 19 Harbor Drive, Miami, Florida 33149; by regular U.S. Mail to the Honorable Darren A. Schwartz, Administrative Law Judge, Division of Administrative Hearings, 1230 Apalachee Parkway, Tallahassee, Florida 32399- 3060; and by hand delivery to Marc Drexler, Chief Attorney, Division of Hotels and Restaurants, Department of Business and Professional Regulations, 1940 North Monroe Styeet, Tallahassee, Florida 32399-2202, this |@¥day of Yezember , 2013. msn For the Division of Hotels and Restaurants 7196 4008 G11) 4516 1240 | SENDERS, RECORD
Recommendation It is recommended that the Complaint against the Respondent be dismissed. ENTERED this 9th day of June, 1976, in Tallahassee, Florida. KENNETH G. OERTEL, Director Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Manuel E. Oliver, Esquire Staff Attorney, Florida Real Estate Commission 17 Ponce de Leon Boulevard Coral Gables, Florida 33134 Lawrence Scherr 2222 Southwest 22nd Terrace Miami, Florida 33145 C. B. Stafford, Executive Director Florida Real Estate Commission 699 Lee Road Winter Park, Florida 32789
The Issue Whether Respondent, when he voted April 18, 2002, as a member of the Palm Beach Gardens City Commission, on Resolution 54, 2002 and Resolution 57, 2002, relating to Parcel 6 and Parcel 24, respectively, of the Mirasol development project, knew that these measures would inure to the special private gain or loss of a principal by whom he was retained and thereby violated Section 112. 3143(3), Florida Statutes, as alleged in the Order Finding Probable Cause, and, if so, what is the appropriate penalty.
Findings Of Fact Based on the evidence adduced at the public hearing and the record as a whole, the following findings of fact are made to supplement and clarify the factual stipulations set forth in the parties' Joint Prehearing Stipulation2: Each of the "Sabatello construction companies" referred to in the parties' Stipulations of Fact 3 and 4 was wholly owned by Carl Sabatello and his brothers Paul, Theodore, and Michael Sabatello (Sabatello Brothers), with each brother owning an equal (25%) share of the company. Of these companies, only one, Sabatello Development Corporation IV (SD IV) was involved in the Mirasol Project. SD IV has been in continuous existence since its formation in or around the 1980's. Carl Sabatello serves as its president, "oversee[ing] all [of its] functions." SD IV is a Subchapter S corporation. As such, its profits are passed through to the Sabatello Brothers, its four shareholders, in equal amounts. Respondent is a certified public accountant. Since 1989, through his accounting firm, he has provided tax preparation services to SD IV and the Sabatello Brothers. His firm has derived "anywhere from 15 to 25%" of its total income from the monies received for providing these services. Before establishing his accounting firm in 1989, Respondent was SD IV's chief financial officer and one of its shareholders. Taylor Woodrow Communities (Taylor Woodrow) was the master developer of the Mirasol Project. Taylor Woodrow's Craig Perna had "overall responsibility for every aspect of the [Mirasol] development" project, including the "selection of builders." The builder selection process started with Mr. Perna getting the names of "prominent builders in the Palm Beach Gardens market" having "excellent reputation[s]" and then contacting them to inquire as to their interest in participating in the Mirasol Project. Carl Sabatello was among those Mr. Perna contacted. He was contacted (by telephone) in mid-May of 2000, and advised Mr. Perna he was "very interested" in having his company, SD IV, considered for selection as a builder in Mirasol. SD IV, was one of at least ten or 12 builders vying to be selected to participate in the Mirasol Project. Over a period of approximately eight months (from mid-May 2000, to mid-January 2001), Taylor Woodrow requested and obtained from SD IV and from the other would-be participants in the project (Other Builders) information and documents in order to evaluate these builders' qualifications for selection. In the latter part of 2000, prior to any selection having been made, Carl Sabatello requested the Palm Beach Gardens City Attorney, Leonard Rubin, Esquire, "to provide a [written] legal opinion as to [Mr. Sabatello's] obligation to abstain from voting in [his] official capacity on matters relating to Mirasol that come before the [Palm Beach Gardens] City Council." In response to Mr. Sabatello's request, Mr. Rubin prepared a written memorandum, dated December 5, 2000, which was provided, not only to Mr. Sabatello, but to all members of the Palm Beach Gardens City Council, including Respondent, as well as to the Interim City Manager. The memorandum read as follows: You have indicated that the Sabatello Companies, of which you are a principal, is currently in negotiations with the developers of the Mirasol Planned Community District ("PCD") to become a builder of homes within that community. Your activities as a builder would be limited to specific parcels or pods within the PCD. You asked this office to provide a legal opinion as to your obligation to abstain from voting in your official capacity on matters relating to Mirasol that come before the City Council. Voting conflicts for members of the City Council are governed by section 112.3143, Florida Statutes. Subsection (3)(a) provides that a municipal officer shall not vote in an official capacity on any measure that "would inure to the special gain" of the officer, a principal by whom the officer is retained, or a relative or business associate of the officer. According to the state Ethics Commission, the determination of whether the officer receives a special private gain is based upon the size of the class of persons affected by the vote at issue. The Mirasol PCD encompasses a variety of residential, commercial, recreational and community uses. The residential uses range from low density single family homes to high density multi-family apartments. It is anticipated that your company's activities will be limited to the construction of single family dwellings within a specific, identifiable parcel for which a site plan has already been approved. Because of this limited involvement, there does not appear to be any requirement that you abstain from every vote relating to the approval of plats, parcels and site plans within the entire Mirasol PCD. See CEO 85-62 (city council member not prohibited from voting on rezoning of property within a large redevelopment area where member's corporation owns a parcel of land within the same area). By way of example, the City Council's approval of the site plan for the fire station or the plat for Jog Road in no way inures to your or your company's special private gain. You would, however, be required to abstain from any additional votes relating to the specific parcels or pods within the community in which your company possesses or acquires an interest by virtue of a contractual relationship with the master developer. Where a conflict of interest exists, you are required to state the nature of your interest prior to the vote and file a voting conflict memorandum with the City Clerk, within 15 days. The existence of a voting conflict does not necessarily require you to abstain from all discussion relating to the matter (although you are free to do so). If you plan to participate in discussion of a matter in which you know you have a conflict, you must file a written conflict memorandum before the public meeting. You have also expressed concern that upon learning that your company will be building homes within Mirasol, members of the public may perceive a conflict of interest in all matters relating to Mirasol. To avoid the appearance of impropriety, it would be appropriate to make the following disclos[ure] prior to any vote: "While it is anticipated that the Sabatello Companies will be building homes within Mirasol, the matter before the City Council does not concern the areas in which such construction will take place and is wholly unrelated to any interest held by me or my corporations." Should you have any questions or be in need of additional information, please do not hesitate to contact this office. In January of 2001, Taylor Woodrow selected SD IV to build on Mirasol Parcel 4.3 It sent Carl Sabatello a letter dated January 22, 2001, advising him of the selection, along with a Parcel Builder Agreement and Exclusive Agency Brokerage Agreement for Mirasol Parcel 4. These agreements were fully executed in February of 2001. Sometime thereafter SD IV began building on Mirasol Parcel 4. SD IV was one of first builders to start construction in Mirasol. SD IV eventually purchased all 46 lots in Mirasol Parcel 4, constructing homes on each. All of the homes it built were sold. On or about October 18, 2001, at Respondent's request, Mr. Rubin prepared and distributed to Respondent and the other members of Palm Beach Gardens City Council a written memorandum designed to provide "clarification and confirmation from [the City Attorney's] office regarding a Council Member's obligation to vote on an item before the City Council." In this memorandum, Mr. Rubin made the following points: A council member must vote in the absence of a voting conflict or conflict of interest. Section 28[6].012, Florida Statutes, requires a member of the City Council, who is present at a meeting, to vote on an item before the Council unless there is, or appears to be, a conflict of interest or voting conflict pursuant to the Code of Ethics for Public Officers and Employees. * * * A voting conflict arises when the vote inures the Council member's own special private gain or loss of the special private gain or loss of the Council member's principal, family member or business associate. * * * The special private gain to the Council member depends on the size of the class of persons affected and is fact-specific. * * * The special private gain to the Council member must be direct and proximate. * * * In the event of a voting conflict, a Council member must disclose the nature of the conflict and abstain from voting. Mr. Rubin's memorandum "reinforced what [Respondent] already knew about the law." On April 18, 2002, the Palm Beach Gardens City Council voted on and passed two measures concerning the Mirasol Project, one, Resolution 54, 2002, dealing with Mirasol Parcel 6 (a 10.11 acre site within the development), and the other, Resolution 57, 2002, dealing with Mirasol Parcel 10 (a 14.6-acre site within the development). As the summary statement on its first page reflects, Resolution 54, 2002 was: A resolution of the City Council of the City of Palm Beach Gardens, Florida, providing for the approval of a site plan to allow for the development of 41 semi-custom homes, known as Mirasol Parcel 6, located within the Mirasol Planned Community District (PCD), as more particularly described herein; providing for conditions of approval; providing for waivers; providing for severability; providing for conflicts; and providing for an effective date. Section 5 of the resolution granted the following waivers: From Section 78-498 of the LDRs, to permit a 45-foot wide right-of-way. The code requires a minimum right-of-way width of 50 feet. From Section 78-141 of the LDRs, to permit a minimum lot width of 60 feet. The code requires a minimum width of 65 feet. From Section 78-141 of the LDRs, to permit lot coverage of 50%. The code requires a maximum lot coverage of 35%. From Section 78-141 of the LDRs, to permit a building side setback of 3 feet 1 inch on a "zero" side and 6 feet 11 inches on a "non-zero" side. The code requires a minimum side setback of 7.5 feet. From Section 78-141 of the LDRs, to permit a screen/accessory side setback of 3 feet 1 inch on a "zero" side and 5 feet on a "non-zero" side. The code requires a minimum side setback of 7.5 feet. From Section 78-141 of the LDRs, to permit a screen/accessory rear setback of 3 feet. The code requires a minimum setback of 10 feet. As the summary statement on its first page reflects, Resolution 57, 2002 was: A resolution of the City Council of the City of Palm Beach Gardens, Florida, providing for the approval of a site plan to allow for the development of 26 custom homes, known as Mirasol Parcel 10, located within the Mirasol Planned Community District (PCD), as more particularly described herein; providing for conditions of approval; providing for waivers; providing for severability; providing for conflicts; and providing for an effective date. Section 5 of the resolution granted the following waivers: From Section 78-498 of the LDRs, to permit a 45-foot wide right-of-way. The code requires a minimum right-of-way width of 50 feet. From Section 78-141 of the LDRs, to permit lot coverage of 45%. The code requires a maximum lot coverage of 35%. From Section 78-141 of the LDRs, to permit a building/screen side setback of 10 feet. The code requires a minimum side setback of 12 feet. From Section 78-141 of the LDRs, to permit an accessory structure setback of 5 feet. The code requires a minimum side setback of 12 feet. From Section 78-141 of the LDRs, to permit a screen/accessory rear setback of 3 feet. The code requires a minimum setback of 10 feet. The "waivers" that were granted by Resolution 54, 2002 and Resolution 57, 2002 were from the requirements of the Palm Beach Gardens Code that Taylor Woodrow, or whichever builder(s) it subsequently selected to build on the affected parcels, would otherwise have to meet. At the April 18, 2002, Palm Beach Gardens City Council meeting, Carl Sabatello orally announced to those in attendance, including Respondent, that he was going to abstain from voting on Resolution 54, 2002 and Resolution 57, 2002, explaining that he was involved in discussions regarding the possible purchase of the two parcels that were the subject of these measures. At the time of the vote on Resolution 54, 2002 and Resolution 57, 2002, although he may have been aware of the investment Mr. Sabatello's company had made in Mirasol Parcel 4, Respondent had no knowledge of any connection that Mr. Sabatello or his company may have had with Mirasol Parcel 6 and Mirasol Parcel 10 other than what Mr. Sabatello had told the audience at the meeting about the matter. As far as Respondent knew, neither Mr. Sabatello nor his company owned or had a contract to purchase Mirasol Parcel 6 or Mirasol Parcel 10. Respondent did not attempt to engage Mr. Sabatello in conversation or otherwise seek to find out more about the discussions Mr. Sabatello had referred to in his abstention announcement. Respondent did, however, consult with the Palm Beach Gardens City Attorney to determine whether or not he should vote on the resolutions. Respondent "knew [that the law required him] not to vote [on] things that a client had an interest in," but, based on what Mr. Sabatello had said at the meeting, he believed that Mr. Sabatello was merely "in a discussion phase" regarding the acquisition of an interest in Mirasol Parcel 6 and Mirasol Parcel 10 and that there had not been any agreement reached on the matter. He therefore voted on Resolution 54, 2002 and Resolution 57, 2002, consistent with the advice that the Palm Beach Gardens City Attorney had given. Approval of the site plans for Mirasol Parcel 6 and Mirasol Parcel 10 (which the passage of Resolution 54, 2002 and Resolution 57, 2002, respectively, accomplished) was needed before any permits for building on those two parcels could be obtained. Mr. Sabatello, on April 18, 2002, filled out a voting conflict form (Form 88, Memorandum of Voting Conflict) explaining why he did not vote on Resolution 54, 2002 and Resolution 57, 2002. On the form, he indicated that these votes "inured to the special gain of Sabatello Development Corp, IV, Inc, by whom I am retained," and then added that this "company," of which he was "an officer and owner[,] [was] in the process of negotiating [the] purchasing of Pod 6 & Pod 10." At the time he cast his votes for Resolution 54, 2002 and Resolution 57, 2002, Respondent was "not privy" to the contents of Mr. Sabatello's completed voting conflict form. On April 30, 2002, 12 days after the votes on Resolution 54, 2002 and Resolution 57, 2002, SD IV entered into an agreement with Taylor Woodrow to purchase all of the lots in Mirasol Parcel 6. It closed on lots 10, 11, 32, and 33 on September 25, 2002, and on the remaining lots in the parcel on January 3, 2003. SD IV built a home on every lot it purchased in Mirasol Parcel 6, and it sold every home it built. SD IV received a contract to purchase Mirasol Parcel 10, but it never executed the contract and therefore never acquired an interest in the parcel.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Commission issue a public report finding the evidence presented at the public hearing in this case insufficient to clearly and convincingly establish that Respondent violated Section 112.3143(3), Florida Statutes, by voting at the April 18, 2002, Palm Beach Gardens City Council meeting on Resolution 54, 2002 and Resolution 57, 2002, and dismissing the complaint filed against Respondent. DONE AND ENTERED this 4th day of March, 2009, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of March, 2009.
