Findings Of Fact The Petitioner is the holder of CON No. 1863 authorizing construction of a 120-bed nursing home in Plant City, Hillsborough County, Florida. The original CON was issued November 30, 1981, but due to protracted litigation, the CON was not finally effective until July 1, 1982. In the meantime, an initial conference was held between the CON holder, Palm Court, and the Office of Licensing and Certification on February 23, 1982. As a result of that meeting, preliminary plans for the nursing home were submitted to the Office of Licensure and Certification (OLC) on March 29, 1982. These plans were not approved but comments were suggested concerning HRS' position as to changes to be made. On May 20, 1982, revised preliminary plans were approved subject to comments. On April 11, 1983, final plans were initially submitted for approval. These were received on April 14, 1983 by Respondent HRS. Palm Court received no communication regarding these plans from HRS until June 10, 1983,_at which time they were denied approval with certain "comments and suggestions" attached to the denial communication. While in the process of responding to the June 10, 1983 letter of denial, Palm Court filed for a six month extension of its Certificate of Need's validity period, which was granted by HRS on June 28, 1903. Palm Court thereafter submitted its response to the "denial with comments" on June 30, 1983. On September 6, 1983 HRS communicated with Palm Court informing it that the drawings had been approved subject to additional "comments. The September 6, 1983 comments raised for the first time certain additional new items or matters HRS Plan reviewers were concerned about. The comments raised by HRS on September 6, 1983 were responded to by letter by the Petitioner on September 27, 1983. HRS rejected the proposals contained in the September 27, 1983 response letter on November 1, 1983. Thereafter, on November 28, 1983, after it had received another informal interpretation by HRS of the comments and suggestions in its September 6 letter, Palm Court responded to the November 1st HRS rejection letter. The plans ultimately were not approved by HRS until January 10, 1984. In the meantime, on December 31, 1983, the 18-month period of validity for the petitioner's CON expired. On January 19, 1984, Palm Court received a letter from HRS declaring its CON null and void as of December 31, 1983. All parties acknowledge that Chapter 100-29, Florida Administrative Code applies to the submission and approval of construction plans and that contained in these rules is the incorporation of standard publications which, at the time of Palm Court's plan review, included the "1976 NFPA Life Safety Code." Contained in this Life Safety Code are references to corridors to be contained in nursing home facilities and their descriptions and dimensions. Preliminary plans for Palm Court's project were submitted at a conference on, March 19, 1982. On April 5, 1982 the OLC denied approval of those plans with the "comment, No. A 5," which read "provide a six-foot staff corridor to med-prep." Subsequent to that April 5, 1982 letter of denial, Palm Court resubmitted the preliminary plans, making no change concerning corridors or the med-prep room. These plans were then approved by OLC subject to comment, none of which related to corridors or the med-prep room. No testimony by Petitioner or HRS has explained why comment A-5 was not mentioned either in the resubmittal of Palm Court or the approval with further comments by HRS. Due to litigation contesting Palm Court's CON entitlement and delays surrounding the hearing process, construction plans were not submitted for final approval until April 11, 1983. These plans again contained the layout for the nurses station, med-prep room and corridor as originally submitted March 29, 1982 and preliminarily approved on May 20, 1982. HRS did not respond until June 10, 1983 as mentioned above, at which time it withheld approval with comments. The comments submitted with the June 10, 1983 letter denying approval made no reference to the nurses station, med-prep room or corridor. The Petitioner responded to the June 10, 1983 comments of HRS on June 30, 1983 submitting responses to all comments raised in HRS' June 10, 1983 letter of denial. On September 6, 1983, more than 60 days after Petitioner's response of June 30, OLC responded to Petitioner's June 30, 1983 letter, this time granting conditional approval of Petitioner's final construction plans, subject to "comments." The September 6, 1983 letter however, contained a section labeled "new comments", one of which was "A-17." Comment A-17 stated: "Provide 6'-0" circulation space to Med Prep room in addition to space required to work behind nurses station. Revise plan as required. . ." Comment A-17 contained no reference to comment A 5 which had been contained in the April 5, 1982 letter from OLC to Petitioner. Comment A-17 contained no reference to any area on the drawings, HRS rules, or the 1976 Life Safety Code. Mr. Levin, the Petitioner's architect and drafter of Petitioner's plans, made numerous attempts to contact personnel at OLC after the September 6, 1983 letter to learn what would be required to satisfy comment A-17. He was given to understand that only an explanation of the med-prep room was required to satisfy comment A-17. He learned that in a conversation with Mr. Joseph Alcure of the OLC. Mr. Levin also informed Mr. Alcure that an exact duplicate of the plans had already been submitted and finally approved without comment to construct a similar nursing home in New Port Richey, Florida. The New Port Richey facility was nearly completed as of the time of this hearing. In spite of Petitioner submitting a response on September 27, 1983 referring to the fact that the New Port Richey facility had already been approved with a duplicate set of plans, on November 1, 1983 the OLC again gave petitioner only conditional approval with comments again, including comment A-17, without definitive explanation. The reassertion of comment A-17 in the November 1, 1983 conditional approval letter was as follows: "Respond correctly to the previous comments. 6'0" is required in addition to the required 100 square foot nurses station." Petitioner's architect, Mr. Levin, again made repeated attempts at clarification of what this meant. He eventually was contacted by OLC's architect, John DeLoe, on or about November 21, 1983. Mr. DeLoe finally explained the problem to which he had been referring, namely that he interpreted the Life Safety Code (which all parties agree is applicable to the issues and facts of this case) to mean that the space behind the nurses station "counter" was corridor or exit access because the med prep room was required to open onto a six-foot corridor. Mr. DeLoe suggested that the problem could be solved by reversing existing plans to the extent that the nurses lounge and the med prep rooms would be exchanged in the positions they occupied on the plans and ultimately as they would be built. The Petitioner made the suggested revisions and submitted the final set of plans incorporating this change on November 28, 1983. The OLC finally approved that November 28, 1983 submission without comment on January 10, 1984. There was significant confusion between the Petitioner and HRS as to what the comment concerning the six-foot corridor space, into which the med-prep room was required to open, actually required. There was conflicting testimony by representatives of both petitioner and Respondent concerning the application of the Life Safety Code to the condition referred to by OLC as "A-5" in the April 5, 1982 letter and "A-17" in the letters dated September 6, 1983 and November 1, 1983, concerning the "flip-flop" of the med-prep room's location and the nurses lounge location. The provisions of the Life Safety Code raised by the petitioner and Respondent are vague and it is difficult to determine whether the six-foot requirement actually exists. Mr. Bruce Sharp, project manager for the construction of Palm Court Nursing Center, testified on behalf of petitioner. Mr. Sharp moved to St. Petersburg, Florida in August, 1983 to manage the development of the project. Mr. Sharp began taking bids and doing visual site work immediately after his arrival at the construction site. As a result of engineering studies performed, he determined that the site was too low in elevation, which could cause flooding. Because of this, on or about October 29, 1983, another site was selected at which Mr. Sharp continued his work of selecting subcontractors and vendors to develop the project. Mr. Sharp did not have to begin work entirely anew, however, and engineering previously performed was transferred to the new site to the extent applicable. Because of the higher elevation at the new site, it was far more suitable for the project than the original site had been. As part of his site preparation, Mr. Sharp had numerous discussions concerning acquisition of a building permit for the project from the Plant City Building Department. These discussions began in mid-September, 1983 and continued until a foundation permit ultimately was secured on December 29, 1983. Initially the Building Department was reluctant to issue the permit because of the proposed municipal annexation and improper zoning of the new building site. These problems were resolved on or about November 1, 1983. Mr. Sharp, at that point, could have taken an approved set of construction plans to the Plant City Building Department for their review and could have had a permit issued. However, he did not yet have an approved set of plans from HRS. Thus, the Plant City Building Department refused to issue any type of building permit at that time. Upon failing to get a full building permit because he did not yet have an approved set of construction plans, Mr. Sharp attempted to obtain a foundation permit so that he could operate within the local building code and commence construction and thus be able to comply with his 18-month deadline with HRS. Efforts to obtain a foundation permit from the Plant City Building Department were not initially successful, but finally, after a great deal of difficulty, he was able to obtain a "foundation only" construction permit, after he was able to convince the director of the Building Department that an approved set of construction plans was imminently forthcoming from HRS. In the meantime, Mr. Sharp had tentatively scheduled a subcontractor to pour concrete and commence construction prior to December 31, 1983. The concrete could not legally have been poured prior to December 29, 1983 because the foundation permit (nor a full building permit) had not been secured before that date. Between December 29, 1983 and December 31, 1983, concrete could not actually have been poured because of the physical condition of the site having deteriorated due to severe rains. Concrete was eventually poured on January 10, 1984 and continuous construction work was performed until and including January 19, 1984 when the OCMF notified the principals of the project that the CON was considered "terminated." There is no question that the building permit could have been obtained from the Plant City Building Department and the necessary concrete and steel could have been erected to conform with the statutory definition of "commence construction" prior to December 31, 1983 if the Building Department could have been supplied plans approved by the Office of Licensure and Certification "without comment." The dispute concerning the OLC approval of the plans concerned the location of the med-prep room and the nurses lounge. If the Petitioner could have obtained a permit from Plant City to pour the foundation based on the construction plan "approved subject to" comment A-17, then later was required to flip-flop the two rooms, several problems would have arisen. This would not be merely a cosmetic change. If the Petitioner had obtained a building permit from the Plant City Building Department based on construction plans approved subject to that comment and then later was required to actually flip-flop the two rooms, the concrete slab involved would have to be removed, the electrical work removed and the plumbing removed. Concrete would be removed in order to relocate a doorway into a corridor and to relocate certain engineered structural posts required to bear the weight of the four-ton air conditioning unit on the roof. The electrical wiring would have to be reworked since the decision had been made, pursuant to an option in the project 7 specifications, to locate the wiring underground in the interest of limiting electrical exposure to patients. The plumbing would require removal which also involves destroying the concrete slab in order to reinstall the plumbing for the changed location of the two rooms. The air conditioning unit was shown to be most efficient when located above the nurses station because that permits locating the monitor or thermostat in close proximity to the nurses station and away from the patient corridor. The Respondent HRS presented, through Mr. Richard Rosenvold, its architect supervisor, an informal, unpublished non-rule policy to the effect that an applicant can request a letter from HRS authorizing the issuance of a "foundation only" permit and that this would be in compliance with the statute cited above. Admittedly, however, constructing under such a "foundation only" permit would be at the applicant's peril if the conditional comments of HRS, when ultimately complied with, would affect the structural foundation of the building. There is no question that the comment A-17 concerning the "flip-flop" of the two rooms clearly affected the foundation, the electrical and plumbing installations and so forth. Inconsistent interpretations of the Life Safety Code provisions, together with the ambiguous comments themselves, put the petitioner in an uncertain position regarding the wisdom of proceeding with construction even if it could have obtained a foundation permit. A foundation permit is not the same as a building permit. A building permit authorizes construction of the entire facility while a foundation permit only authorizes approval of the foundation or concrete and steel protruding from the ground of the site. Mr. Eugene Nelson, the Administrator of the Office of Community Medical Facilities (OCMF), testifying concerning agency policy and practice, knows of no prior case where issuance of a foundation permit has been held to fulfill the requirement of the definition of "commencement of construction" enunciated in the above statute. If the petitioner had received a foundation permit and been able to pour concrete prior to December 31, 1983, it could not have maintained continuous activity on the site, which is another requirement of the definition of "commencement of construction." A full building permit would be required to actually conduct continuous activity on the site culminating in the erection of the structure. In all likelihood, if Petitioner had relied upon Mr. Rosenvold's enunciated policy concerning a request for a letter authorizing issuance of a foundation only permit and then had obtained a foundation permit in reliance thereon and proceeded to the point of pouring the concrete slab prior to resolving the issue about the corridor and room location and dimensions, then the Petitioner would have run the risk of having to tear out part of the foundation slab because of Mr. DeLoe's suggested change. This would have placed an absurd burden on the Petitioner, merely in the interest of ensuring compliance with the 18-month deadline, especially in view of the Petitioner's good faith effort otherwise, in the course of its preparation and development of the project, to comply with that deadline. Such a course of action would have defeated the cost containment purpose behind enactment of Chapter 381, Florida Statutes. In summary, the CON holder here accomplished substantially all of the "indicia of construction", accepted in the construction industry as establishing the point when construction begins, prior to December 31, 1983. Financing was arranged, site preparation was arranged, initial site development work had begun several months before that date and, in essence, the only remaining hurdles to overcome in order to actually pour concrete were the lack of a building permit and the lack of unconditional approval of the final construction plans because of the events discussed above. It was not shown to be entirely the fault of the CON holder, the Petitioner, for failing to obtain its building permit so that it could timely start physical construction on the site before December 31, 1983, inasmuch as the building permit was denied Petitioner because of HRS' failure to approve the plans on a timely basis.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, hereby RECOMMENDED that a Final Order be entered by the Department of Health and Rehabilitative Services providing that Certificate of Need No. 1863 for a 120- bed nursing home in Plant City, Florida, remain valid and in full force and effect. DONE and ORDERED this 18th day of December, 1984, in Tallahassee, Florida. R. MICHAEL RUFF, 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 18th day of December, 1984. COPIES FURNISHED: Robert S. Cohen, Esquire Post Office Box 669 Tallahassee, Florida 32302 Douglas L. Mannheimer, Esquire Post Office Drawer 11300 Tallahassee, Florida 32302-3300 David Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
Findings Of Fact Agreed Facts: The Department of Health and Rehabilitative Services (hereinafter "HRS") is the affected agency and is responsible for agency action concerning certificates of need in Florida. FCC is a Florida corporation located at 345 South Magnolia Drive, Suite E-21, Tallahassee, Florida 32301. FCC applied for a CON to construct a 120-bed nursing home in Dade County, Florida, in January 1984. HRS denied that application on March 2, 1984, and FCC timely requested an administrative hearing. During the course of this first round of administrative litigation, HRS resolved its dispute with FCC and issued to FCC CON No. 3024 to construct a 120- bed nursing home in Dade County, Florida. HRS required 24 of the 120 beds to be dedicated to Medicaid patients. HRS issued the CON to FCC on February 4, 1985, but did not issue its final order in the first round of litigation until July 1, 1985. In October 1985, St. Francis Hospital challenged FCC's CON No. 3024. This litigation was independent of the initial first round of litigation concerning this CON. The St. Francis case was resolved in December 1985, and HRS tolled the time for FCC to commence construction. HRS stated that the new starting date for the project was December 4, 1985, and that the project must be under continuous construction by December 3, 1986. On November 14, 1986, FCC requested a six-month extension of the one- year validity period for CON No. 3024. HRS granted that request on February 5, 1987, and established June 3, 1987, as the new termination date for CON No. 3024. HRS does not dispute that FCC properly obtained this six-month extension. On December 1, 1986, however Forum Group initiated new litigation challenging FCC's CON pursuant to the opinion of the First District Court of Appeal in Gulf Court Nursing Center v. Department of Health and Rehabilitative Services, 483 So.2d 700 (Fla. 1st Dist. 1985). This third round of litigation concluded when Forum Group voluntarily dismissed its appeal before the District Court of Appeal, and the District Court issued its order closing the case on July 28, 1987. Based on this third round of litigation, HRS established January 26, 1988, as the new termination date for CON No. 3024. On October 23, 1987, FCC filed an interim cost report for this project showing an expenditure of $84,000. On January 7, 1988, HRS issued a letter to FCC permitting FCC to lay the foundation for CON project No. 3024. On January 19, 1988, HRS approved the entire construction plans for CON No. 3024, and through its contractor, FCC promptly obtained a local building permit, No. 0788, on January 22, 1988. At 11:15 a.m. on January 27, 1988, the day after the termination date for this CON, HRS conducted a site visit. By letter dated January 29, 1988, HRS stated that the CON was null and void and requested FCC to return the original CON. FCC received that letter on February 8, 1988. FCC timely petitioned for a formal administrative hearing under Section 120.57(1), Florida Statutes (1987), on February 12, 1988. HRS referred the petition to DOAH to conduct a formal hearing. The only grounds stated by HRS as the basis for voiding CON No. 3024 is that the project was not "under physical and continuous construction beyond site preparation" by January 26, 1988. Prior to January 26, 1988, FCC completed the following activities with regard to CON No. 3024: Obtained land for the project; Procured a building permit from the local building authorities; Obtained a foundation permit from HRS; Obtained HRS' approval of the actual construction documents for the construction of the entire 120-bed nursing home, pursuant to a letter from Mr. Richard Rosenvold, HRS, dated January 19, 1988 (authorizing the construction of the entire project beyond the foundation). On or before January 26, 1988, FCC undertook the foundation forming of the nursing home authorized CON No. 3024 by installing steel and placing concrete on its site in Dade County, Florida, in accordance with HRS-approved construction documents. HRS agrees that, if FCC prevails in this case, FCC will have twelve months from the rendition of the Final Order within which to recommence construction pursuant to CON No. 3024. Disputed Facts: Interruptions in the Validity Period The purpose of the validity period of a CON is to provide an uninterrupted space of time for the CON holder to commence construction. During this period the holder of the CON must get architectural plans approved by HRS, obtain land and proper zoning, obtain a building permit, obtain financing, and begin constructing the project. The CON validity period is twelve months. HRS may authorize one six- month extension, for a maximum validity period of eighteen months. The validity period for CON No. 3024 was unique, in that the CON was twice subjected to legal challenges which threatened the validity of the CON long after the CON was issued by final agency action. Because HRS recognizes the significance of legal challenges which threaten the validity of a CON, HRS tolls the validity period throughout the duration of such challenges. HRS twice tolled the validity period for FCC's CON No. 3024, first, because of the challenge brought by St. Francis Hospital and, second, because of Forum Group's Gulf Court challenge As a result of this stop-and-go process, FCC did not have an uninterrupted eighteen months, to commence construction of CON No. 3024. The significance to FCC of the interruptions to the validity period for CON No. 3024 were: FCC could not obtain project financing during legal challenges to the CON or during the time periods after the challenges were concluded but before HRS issued its letter recommencing the validity period. Because of the Forum Group challenge, FCC could not close on its contract to purchase land for the project and lost the first site it had selected for construction of its nursing home. FCC incurred increased costs for zoning in that it lost the sums it had expended to obtain appropriate zoning approval from the local zoning authority for the first site. The St. Francis and Forum Group legal challenges delayed the commencement of construction for CON No. 3024 between three and four months. This delay is in addition to the time lost during the pendency of the litigation when FCC could make no additional expenditures to develop the project. FCC did not make expenditures toward commencing construction of CON No. 3024 during the pendency of any litigation challenging the validity of that CON because to do so is commercially unreasonable. However, FCC did not wait for HRS' notification that the validity period for this CON had recommenced before contracting to purchase an additional site. After investigating five other locations, FCC contracted to purchase land located at 16100 Northwest 2nd Avenue, Miami, Dade County, Florida, on September 4, 1987. Retroactive Notices By statute, HRS is responsible for notifying CON holders of the commencement tolling, and recommencement of the CON validity period. Without notification from HRS about the duration, commencement, tolling, and recommencement of the validity period for a CON, the CON holder cannot make appropriate plans to commence construction of a CON project. Without clear notification from HRS about the duration of the CON validity period, lenders will not finance CON projects. HRS twice provided tardy notice to FCC about the recommencement of the validity period for CON No. 3024: The St. Francis Hospital litigation was settled favorably for FCC in December 1985. Nonetheless, HRS did not notify FCC that its validity period had recommenced as of the date of the December 1985 final order until its letter dated February 10, 1986. Forum Group dismissed its appeal and the First District Court of Appeal issued an order of dismissal on July 27, 1987. Nevertheless, HRS did not notify FCC that the validity period for CON No. 3024 would recommence as of July 27, 1987, until its letter dated September 28, 1987. Even though FCC did not complain about the January 26, 1988, termination date which HRS established for CON No. 3024 by letter dated September 28, 1987, until HRS initiated this action, FCC's failure to complain does not rectify HRS' retroactive notifications. Forum group initiated its challenge with two days then remaining for the validity period for CON No. 3024. HRS then tolled the validity period for this CON throughout the legal challenge. HRS approved FCC's request for the six-month extension by letter dated February 5, 1987, while the validity period continued to be tolled. When the Forum Group litigation was dismissed, HRS extended FCC's validity period for this CON to January 26, 1988, which is a total of six months and two days (182 days) from the date of the July 27, 1987, order of dismissal. Tree Permit There were no trees where the foundation for CON No. 3024 was to be located, and there were no protected species of trees on the site for this project. Accordingly, the local authority for Dade County did not require a tree permit for this site. Zoning and Other Approvals FCC, through its Vice President of Development and Project Architect William T. Searcy, an expert in architecture and in the evaluation of construction costs, applied for zoning for the second project site for CON No. 3024. Prior to commencing construction before the termination date of the CON, the local zoning authority unanimously approved FCC's application for a 120-bed nursing home with a screened fence between the nursing home and its adjoining neighbors. FCC obtained a waiver of the requirement to plat its site for CON No. 3024 from the local authorities for Dade County on January 22, 1988. FCC did preliminary worth with local utility companies to insure all utility service would be available to the nursing home, prior to the January 26, 1988, termination date for CON No. 3024. Construction Contract In late January 1988, FCC, through its owner, James McCarver, verbally agreed to engage Anthony Estevez and Project Advisors Corporation as general contractor to construct the nursing home authorized by CON No. 3024. FCC ordered Estevez to proceed to construct CON No. 3024, and FCC agreed to pay the contractor's time and materials plus 15 percent for overhead and profit. These terms would later be reduced to a written contract, but this action by HRS intervened. Estevez obtained the building permit for CON No. 3024 from the local building authority for Dade County, Florida, only after this verbal construction contract was entered into between FCC and Estevez. Construction Activities FCC hired a soils testing laboratory on October 21, 1987, to do a soil investigation report on the second site for CON No. 3024; adapted its construction plans to fit the new site; hired a building permit specialist familiar with the Dade County building authorities; and hired a civil engineer for the project. The soil testing laboratory, Wingerter Laboratories, Inc., issued its report on October 30, 1987. The project general contractor followed the soil engineer's recommendation in the Wingerter soils report in constructing the footer for the southeast corner of the nursing home authorized by CON No. 3024, and the site was properly prepared. FCC's general contractor, Anthony Estevez, is an expert in general contracting and in the design, construction, and management of health care facilities. On or before the January 26, 1988, termination date, the project's general contractor for CON No. 3024: Had the surveyor, J. F. Lopez, stake out the corners of the building and the footings the contractor planned to pour. Performed all work on the site in accordance with HRS-approved construction documents. Had Vallero Trucking clear the site to good soil where the footer was to be poured. Several thousand square feet were cleared for the footer. The contractor was clearing additional portions of the site when HRS inspected on January 27, 1988. Filled the pad where the footer would be poured. Vibro-compacted the soil under the footer in layers. Used limerock to make a very supportive base for the footer. Set reinforcing steel where the footer was poured. Obtained the threshold engineer's inspection and approval to pour the footer. The threshold engineer inspected the soil compaction and approved the pour. The soil-bearing capacity under the footer was 6,000 pounds per square inch ("PSI"), well in excess of the required 25 PSI for this project. Poured concrete to form a footer of 15 feet at the southeast corner of the foundation for the subject nursing home. Had a compression cylinder test done to determine the strength of the footer. The footer had a strength of 4,600 PSI twenty-eight days after it was poured, well in excess of the 3,000 PSI required. The footer met and exceeded the specification for CON No. 3024 and represents a continuous 15-foot segment of the foundation at the southeast corner of the proposed nursing home. The footer is strong enough to support more than the one-story structure of the nursing home for which it was designed. The contractor had a construction trailer on site for CON No. 3024 on the afternoon of January 27, 1988, just after HRS' inspection. The contractor had a bulldozer, a vibro-compacting roller, and a combination backhoe and front-end loader on site between January 23, 1988, and the end of January or the beginning of February 1988. The contractor's crew was on site for CON No. 3024 from January 22, 1988, until the end of January or the beginning of February 1988, including Saturdays and Sundays. But for this action, there were no barriers to FCC's continuous construction of CON No. 3024 after January 26, 1988. Expenditures and Losses FCC and its general contractor expended, or owe, $256,000 to construct the nursing home in Dade County authorized by CON No. 3024. This includes FCC's expenditures for studies and consultants as well as for legal fees to obtain the CON. This also includes direct costs for travel and long-distance telephone calls, for the development of the architectural plans and construction documents, for engineering, for the down-payment on the second site, and for zoning for both the first and second sites. The general contractor for CON No. 3024 spent in excess of $50,000 on the project to obtain the building permit, fill, equipment, supervision, labor, a threshold engineer, temporary electricity, steel, concrete, the construction trailer, a portable toilet, and insurance. After HRS' site visit on January 27, 1988, when HRS told Estevez, the general contractor for the project, that HRS would terminate CON No. 3024, Estevez ordered all construction on the project to stop. Estevez did so because HRS told him he could not proceed with construction. Because HRS issued its January 29, 1988, letter declaring CON No. 3024 null and void, FCC lost the right to purchase the second site, the land on which it had commenced construction. The HRS Inspection During HRS' inspection on January 27, 1988, there was a bulldozer on site for this project, a construction foreman, and several workers. The construction trailer was in place on the site for this project by the afternoon of January 27, 1988. HRS found a building permit for the project on site during the January 27 inspection. The HRS inspector took pictures of the site for CON No. 3024 depicting construction activity which included foundation forming with steel installation and concrete placing of the footer for the southeast corner of the nursing home authorized by CON No. 3024. HRS sent FCC notice that it was terminating CON No. 3024 as null and void based solely on the January 27, 1988, inspection. HRS based its notice letter on faulty information: HRS believed that a tree permit was required when in fact there were no protected species of trees on the site for CON No. 3024. Consequently, FCC did not need a tree permit from local (Dade County) authorities. HRS believed FCC did not have a soil report when in fact the threshold engineer approved the pouring of a footer based on specified soil compaction. HRS believed that only 25 square feet of the site had been cleared but the footer required, and the contractor cleared, several thousand square feet of the site to pour the 15-foot footer. HRS' decision makers lacked adequate expertise to determine whether FCC had commenced construction of CON No. 3024. The HRS decision makers did not know that the HRS Plans Review Section had approved the construction plans and specifications for CON No. 3024 prior to the January 26, 1988, expiration date for that CON. Site Preparation HRS has no rule for interpreting the "continuous [construction] activities beyond site preparation" portion of the definition of "commence construction." HRS' non-rule interpretation of this phrase is that all site work, including soil compaction for the foundation, delineation of the foot print of the facility, and the clearing of vegetation within the area of the site where the foundation will be poured, must be completed before the termination date in order for the CON holder to validate the CON by commencing construction. FCC was not on notice as to HRS' "policy" definition of construction activity beyond site preparation, and HRS' witnesses did not uniformly describe that "policy." In construction parlance, site preparation includes the preparation of the entire project site. This includes sub-grading under the paving, placing fill under the footers, clearing the entire project site, and finishing the project up to the finished grade. For most large health care and commercial projects, clearing is done in stages and site preparation is merely kept ahead of forming the foundation. No phase is completed before the next phase is begun. If all site preparation had to be completed before a CON holder could go on to the next phase of construction, each CON project would be delayed approximately five weeks at a great cost to the CON holder and to taxpayers and health-care consumers. Prior Inconsistent Action by HRS HRS has not required FCC, nor any other CON holder, to meet the definition of commencing continuous construction beyond site preparation that it required of FCC in this case. HRS found FCC to have commenced construction of five other nursing home projects in Florida after FCC performed construction activities and site preparation identical with FCC's work on CON No. 3024. HRS did not terminate Glenbeigh Hospital's (hereinafter "Glenbeigh") CONs to construct two hospitals even though Glenbeigh completed less construction activity to commence these projects prior to their termination date than FCC had with CON No. 3024. HRS validated Glenbeigh's CON No. 3217 for an eighty-bed substance abuse hospital in Orlando when: Glenbeigh had only a verbal contract with its general contractor three or four days before constructing two small column pads. A building permit was obtained May 21, 1986, before there was any written AIA contract. Glenbeigh only constructed two column pads two feet long by two feet wide by a foot and one-half deep before its June 7, 1986, termination date, versus FCC's fifteen-foot continuous footer on CON No. 3024. A retention pond, shown in pictures taken by HRS of Glenbeigh's project, was not even on the project site and was not something constructed by the CON holder to commence the project. There was no soil test or geologist's report for the column pads, nor for the site. Glenbeigh did site preparation under the foundation long after the column pads were poured and after the termination date for that CON. HRS validated Glenbeigh's CON No. 2667 for a sixty-bed adolescent chemical dependence hospital in West Palm Beach, now licensed, when: Prior to the termination date, Glenbeigh poured two column pads after compacting only under the pads. Glenbeigh continued to perform site preparation under the foundation after the termination date of December 28, 1985, for that CON.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered finding that FCC's CON No. 3024 remains valid. In compliance with the Prehearing Stipulation, it is further RECOMMENDED that FCC be given twelve months from the rendition of the Final Order in this proceeding within which to recommence construction of the Dade County nursing home project authorized by CON No. 3024. DONE and RECOMMENDED this 15th day of December, 1988, at Tallahassee, Florida. LINDA M. RIGOT, 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 Administrative Hearings this 15th day of December, 1988. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 88-0840 Petitioner's proposed findings of fact numbered 1-69 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 1, 4, 6, 7, 10, 12, 14, 17, and 21-23 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 2, 3, 5, 8, 9, 11, 13, 15, 18-20, and 24 have been rejected as being unnecessary for determination herein. Respondent's proposed finding of fact numbered 16 has been rejected as being irrelevant to the issues in this cause. COPIES FURNISHED: Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Robert P. Daniti, Esquire 1017-C Thomasville Road Tallahassee, FL 32303 Richard A. Patterson, Esquire Department of Health and Rehabilitative Services 2727 Mahan Drive Fort Knox Executive Center Tallahassee, FL 32308 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 =================================================================
The Issue The issue in this case is whether the Tallahassee-Leon County Planning Commission (Planning Commission) should approve, approve with conditions, or deny the site plan application filed by the School of Arts and Sciences Foundation, Inc. (SAS). § 9-153, LDC.
Findings Of Fact Petitioner and Leewood Neighborhood Petitioner, Maye Walker, lives in Leewood Hills at 1305 Covington Drive. The "Leewood Neighborhood" consists of three small subdivisions: Leewood Hills; Lisa Park; and Piedmont Forest. The sole access into or out of the Leewood Neighborhood is Leewood Drive, which intersects with Thomasville Road at its eastern end. Cabot Road is a short road running from Leewood Drive to the eastern end of Covington Drive, which parallels Leewood Drive. Lisa Court is a short, dead-end street running from Covington Drive to the north in Lisa Park. Atwood Road is a somewhat longer, dead-end street running north from the western end of Leewood Drive and past the western end of Covington Drive to where it dead-ends in Piedmont Forest. School of Arts and Sciences SAS is located on a 4.03-acre campus at 3208 Thomasville Road. Thomasville Road is the eastern border of the SAS property. The Leewood Neighborhood lies to the south and west of SAS. To the north of SAS is the Piedmont Park Alliance Church. To the east, across Thomasville Road, is the Thomasville Road Baptist Church and Oven Park. SAS is a public charter school sponsored by the Leon County School District. The charter for the School was first approved by the Leon County School Board in April of 1998. By the terms of its charter, SAS may operate a K-12 school with up to 350 students. SAS actually operates as a K-8 school. When it opened, it had approximately 175 students, but enrollment has gone up since then. SAS students come from all over the Leon County School District. SAS's hours of operation are 9:30 a.m. to 3:35 p.m. with an extended day program available beginning at 7:30 a.m. and ending at 6 p.m. SAS operates on the former site of the Epiphany Lutheran Church and Day School. SAS initially leased the site in 1998 with an option to purchase. One of the conditions of purchase was obtaining necessary authorizations from the City for use of the site as a charter school. The City issued a land use compliance certificate (LUCC) on January 5, 1999, which confirmed the ability of SAS to use the Epiphany Lutheran Church and Day School site "for a K-12 Public Charter School." The LUCC also put SAS on notice that its school would be subject to the Education Element of the Comprehensive Plan and that a Type B site plan review would be the process required for adding buildings to the SAS site. (Normally, the type of addition requested by SAS would go through Type A site plan review, but exercising the discretion granted by the City Code, the City's Growth Management Department required a Type B site plan review, which adds a requirement for public notice to the review process.) All buildings currently in use by SAS existed on the site when SAS occupied it. Likewise, the playground on the southern side of the property and the asphalt, outdoor basketball court on the western side of the property were constructed by the Epiphany Lutheran Church and in existence when SAS occupied the site. When the Epiphany Lutheran Church occupied the site, school traffic entered the site from Leewood Drive and Cabot Road, exiting onto Thomasville Road. That traffic circulation pattern caused traffic to back up along Cabot Road and obstruct driveways when parents dropped off and picked up their children, which generated complaints from residents of the Leewood Neighborhood. In response to those complaints, SAS changed the traffic circulation pattern when it occupied the site and began operating. On Monday through Friday, 7:30 a.m. to 6:30 p.m., SAS used a one-way traffic flow through the SAS property, with vehicles entering from Thomasville Road and exiting the school south along Cabot Road to Leewood Drive then left to the intersection with Thomasville Road. A speed bump and stop sign exist at the exit from the SAS property onto Cabot. This change eliminated the traffic backups on Cabot Drive, shifting them to the interior of the SAS property. The traffic circulation pattern used by SAS has been posted on signs at the entrance to and exit from SAS. SAS also has made on an on-going effort to educate its parents as to proper traffic circulation, the need to observe stop signs and no parking signs, and the need to give neighborhood traffic the right-of-way. Unfortunately, not all parents have been compliant, and SAS's efforts have not been able to eliminate problems between parents of school children and residents of the Leewood Neighborhood. On weekends, the site is used by the Thomasville Road Baptist Church for overflow parking, and SAS's auditorium is used on some evenings for performances or other gatherings. For Sunday and evening use, traffic enters and exits onto Thomasville Road. This use of the SAS site does not cause traffic problems for the Leewood Neighborhood. SAS's charter requires it to offer bus service to the students of the school. Bus service is provided by the Leon County Public School District, and the bus number and schedule are determined by the school district based on a number of logistical factors. Currently, eight buses serve the school in the morning and six serve it in the afternoon. SAS's First Addition Proposal On January 6, 2001, SAS obtained another LUCC, which identified the site as "potentially eligible for a 16,559 square foot addition to the existing 15,077 square foot Arts & Sciences Charter School" and identified the applicable review process. It is not clear from the evidence whether SAS ever intended to add 16,559 square feet of building space to its existing campus, as opposed to adding a net of 1,482 square feet for a total of 16,559. In any event, no application was filed to add 16,559 square feet. Instead, a site plan application was filed to add approximately 2,000 square feet of space for a media center and additional classroom. The site plan was designed to accommodate a total of 225 students.4 It is not clear from the evidence what student enrollment at SAS was at the time of this application. However, the evidence was that student enrollment was 211 in February 2002. Although the evidence was that student enrollment can vary during a school year, it probably was approximately 211 during the 2001/2002 school year. During the process of the Type B site plan review of this application, it came to the attention of the City that SAS was not in compliance with vegetation buffers imposed by a Leon County environmental permit issued to the Epiphany Lutheran Church prior to October 1, 1990. SAS was not aware of the requirement before the City required compliance in the spring of 2002. In response, SAS spent approximately $16,000 replacing vegetation buffer along the western boundary of its property and along the southern boundary extending to the east as far as the driveway access to Cabot Road. SAS also added an eight-foot high wood fence along the western boundary line and replaced a low, chain-link fence along the southern boundary, to the east of the driveway access to Cabot Road, adjacent to a residential lot fronting on the east side of Cabot Road, and separating the lot from a kindergarten playground, with an eight-foot high wood fence. It is not clear from the evidence whether an eight-foot high wood fence also was placed along the southern boundary of SAS's property, just north of Covington Drive, west of the driveway access to Cabot Road. There was testimony suggesting that this was done, but the revised site plan under review does not show it.5 In April 2002, the DRC denied SAS's site plan application. Although other grounds for denial were cited as well, one ground for denial was that comprehensive plan and land development regulation provisions for school siting were applicable and precluded site plan approval. When SAS learned it was being denied on that ground, it consulted Dr. Jim Croteau, now Acting Assistant Superintendent for Business Services and Executive Director for Planning and Policy at the Leon County School District. Dr. Croteau was the School Board’s lead on the Education Element of the comprehensive plan, and was the primary drafter of the Education Element. He explained to the City's Planning Department staff that the Education Element applied only to new facilities. Based on these discussions, the City's Planning Department staff reexamined the issue and agreed with Dr. Croteau. SAS was informed of the re-evaluation of the application of the Education Element but was told it had to reapply for site plan approval. SAS's Second Addition Proposal (at Issue) At this juncture in the application process, SAS attempted to further alleviate traffic impacts to the Leewood Neighborhood by proposing a new traffic circulation pattern that would not use Cabot Drive at all. But while SAS thought it possible to have passenger cars enter and exit the site via the Thomasville Road driveway access, it was impossible to devise a way for school buses to also use such a traffic circulation pattern. Then, the City and SAS approached the Piedmont Alliance Church to the north in an attempt to share driveways with SAS, but those efforts ultimately were rejected by the Church. As a result, SAS redesigned its project to turn cars around on the site so that they would enter and exit at Thomasville Road, but with bus traffic routing remaining unchanged. On August 9, 2002, SAS filed a new application with the City for approval of the new site plan. Similar if not identical to the previously denied application, the site plan proposed to add an approximately 1,043 square-foot building for a media center and additional classroom at its campus. (The building being added had two floors, so the additional floor area was twice the square-footage of the building, actually 2,238 square feet.) However, the new traffic circle was proposed as part of this application. It is not clear from the evidence what student enrollment at SAS was at the time of this new application. However, the evidence was that student enrollment was 226 at the end of the 2002/2003 school year. Although the evidence was that student enrollment can vary during a school year, it probably was approximately 225 during the 2002/2003 school year. City staff had numerous concerns with the new site plan, including the potential for dangerous conflict between pedestrians and car and bus traffic. In addition, the redesigned project would require changes to the driveway that would impact stormwater treatment and require the placement of stormwater facilities within the 25-year floodplain. On January 27, 2003, the City's (DRC) denied the applications, as submitted. After further discussion with the City's staff, SAS submitted a revised site plan application on March 8, 2004, which reverted to the one-way, flow-through traffic circulation that has been in effect since SAS has been in operation on the site (and eliminated the need to impact stormwater treatment or require the placement of stormwater facilities within the 25-year floodplain). On March 23, 2004, the DRC approved the revised site plan, with conditions, including a 225 cap on student enrollment. While SAS's site plan application is to add a two-story building addition to provide an additional classroom, as well as a media center, SAS intends to utilize the new classroom instead of an existing undersized classroom, which will become a conference room, so that the number of classrooms will not increase. SAS's representatives testified that the purpose of the addition was not to increase the student population, and SAS agreed to the 225-student cap as a condition of site plan approval, even though current enrollment is approximately 230. School Siting Provisions Inapplicable The evidence was clear that, while some City officials have suggested at earlier points in the site plan review process that compliance with comprehensive plan and land development regulation provisions for school siting were applicable and precluded site plan approval, those provisions actually do not apply to site plans for additions to existing schools. As stated in the City's Planning Department staff report dated March 17, 2004: "The proposed development is not inconsistent with the goals, objectives, and policies of the Education Element of the Tallahassee-Leon County Comprehensive Plan. The provisions of this element include requirements for determining the appropriate locations for new educational facilities but do not address the expansion or modification of existing, established educational facilities." The wording of the Education Element, Objectives 1.2, Policies 1.2.1, 1.2.5, 1.2.7 and 1.3.1 illustrate the intent to apply only to new facilities. If the Education Element applied to existing facilities, many capital improvements, including some planned with sales tax money, would not be able to proceed on many existing schools. As many as half of the District's existing school sites would not be in compliance with the Education Element of the Comprehensive Plan. SAS's property is categorized as Residential Preservation land use on the Comprehensive Plan Land Use Map and is located in a Residential Preservation 1 zoning district. Schools are an allowable use in these comprehensive plan and zoning categories. The Comprehensive Plan and the LDC contain similar identical matrices which prohibit connection of a community service facility to a local road and require planned unit development (PUD) review. But the evidence was clear that those provisions apply only new land uses, not to evaluation of an existing use. Traffic and Noise Impacts of Proposal at Issue The evidence was that, in order of preference, the Piedmont Park Alliance Church driveway was the best for sight distance, with Leewood Drive being almost as good. From a traffic safety standpoint, exiting cars back onto Thomasville Road at the existing SAS driveway was the worst option for two reasons: it had the poorest sight distance of the alternatives; and the median opening on Thomasville Road allowed for the interaction of vehicles from two opposing driveways (SAS's and Thomasville Road Baptist Church's). The evidence suggested that, in May 2004, SAS was adding approximately 300 car and bus trips a day to other neighborhood traffic traveling south on Cabot Drive and east on Leewood Drive to Thomasville Road. Even so, the one-way SAS traffic flowing through the campus and exiting at Cabot Drive tends to be fairly-well spread out. Students beginning to arrive from 7:30 a.m. for the extended day program up through the beginning of the official school day at 9:30 a.m., spaced at an average of 2- to 5-minute intervals, but with a more concentrated peak traffic between 8:45 and 9:30 a.m. In the afternoon and evening, students seemed to be picked up between 3:30 and 6 p.m., with two separate peaks, one between 3:30 and 4 p.m. and another between 5:30 and 6 p.m., but otherwise sporadically. A certain amount of noise generated by SAS's operations impacts at least parts of the neighborhood. There was some evidence to suggest that the proposed two-story addition would add to noise impacts of the basketball court and play area on the western end of the campus by adding to the echo chamber effect of existing building being added to (identified as the former parsonage of the Epiphany Lutheran Church). But at the hearing, SAS committed to construction in accordance with plan elevations placed in evidence as SAS Exhibit j, so that the proposed two- story addition would be attached to the east side of the existing building with a roofline that matches the roofline of the existing building to the west. As a result, while the significant noise impacts to the residents in the home to the immediate west of SAS are not to be taken lightly, the second story of SAS's proposed addition would not add to noise impacts. Because the proposed addition is not anticipated to increase the student population, the addition itself is not expected to increase traffic impacts--either through additional traffic or a different traffic pattern. For the same reason, the addition itself is not expected to increase noise impacts or other disturbances to the Leewood Neighborhood. However, it should be recognized that the purpose of the addition is to enable SAS to better accommodate an increase in student population from 175 when it first opened to 225 under the cap, which was allowed under the LUCC issued in January 1999. For this reason, for the protection of the Leewood Neighborhood, it is imperative that the 225 cap be strictly enforced. The evidence suggested that one way to do this would be to require SAS to report to the appropriate City enforcement officials if enrollment ever exceeds the 225 cap. Visual Impacts and Buffers As for alleged visual impacts from the addition on the residents in the home to the immediate west of SAS (especially from their second story), if constructed in accordance with SAS Exhibit j, not only would the second story of SAS's proposed addition not add to noise impacts, it would not be visible at all from the west. From the south (from sightlines along Covington Drive), even if no eight-foot wooden fence has been erected in that location, the existing vegetation buffer would remain and provide some visual buffer--approximately the same visual buffer that the vegetation was providing for the existing building (the old parsonage). To the extent that Petitioner raised a question as to efficacy of the vegetation buffer in that location, there was no persuasive evidence that the vegetation buffer was inadequate for the addition. From sightline through SAS's driveway access at Cabot Drive, the addition would be visible, but the existing building (the old parsonage) also is visible along those sightlines. A question also was raised as to the SAS's compliance with the vegetation buffer requirements--specifically, that some of the buffer has been removed improperly. Vegetation was removed in the area of the kindergarten playground, but that vegetation buffer was replaced by a privacy fence acceptable to the adjacent resident and by additional vegetation buffer farther to the east. Some vegetation also was removed incidental to installation of a privacy fence in the vicinity of the basketball court.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Planning Commission approve SAS's site plan application, with the conditions recommended by the DRC, together with additional conditions: to report to the appropriate City code enforcement officials if SAS's student enrollment ever exceeds 225; and to limit the height of the proposed addition to the roofline of the existing building, as depicted in SAS Exhibit j. DONE AND ENTERED this 21st day of October, 2004, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 21st day of October, 2004.
The Issue The sole issue is whether the Petition to establish the District meets the applicable factors set forth in Section 190.005, Florida Statutes.
The Issue Whether the Respondents' decision to rank the Intervenor, Turner Construction Company (Turner) first for purposes of entering into contract negotiations was clearly erroneous, arbitrary, capricious, or contrary to competition as alleged by the Petitioner, PCL/Centex Rooney, a joint venture comprised of PCL Civil Contractors, Inc. and Centex Rooney Construction Company, Inc. (PCL/Centex or Petitioner).
Findings Of Fact Prior to December of 2000, the Department of Transportation and the Department of Management Services entered into negotiations whereby DMS would assist the Department by providing project management services for a program known as the Miami Intermodal Center to be located in Miami, Florida. DMS was to assist the Department in securing a Construction Manager-at-Risk (CMAR) for the project. On December 26, 2000, the Department and DMS entered into an agreement that more fully detailed the terms of how DMS would assist in the procurement of the CMAR. Article 4 of the agreement specified that the Department would be considered the owner of the project and that all payments to any "architects, engineers, contractors, etc., will be paid under the control of The Florida Department of Transportation." Additionally, such section provided that all payments "under this contract, as prescribed hereinabove, will be made by The Florida Department of Transportation." The agreement authorized DMS to assist with agreements for architects, engineers, contractors, etc. and recognized DMS forms and procedures for the design, bidding and construction of the project. The complete agreement is identified as Exhibit 4 in this record. After entering the agreement, employees of DMS met with members of the Department's MIC Management Group to coordinate efforts on the procurement of a CMAR for the MIC project. DMS in concert with the Department developed the guidelines for the project, and on January 29, 2001, the Department of Management Services and the Department of Transportation issued a Corrected Legal Notice advertising a Request for Statements of Qualifications for the MIC CMAR. On February 14, 2001, the MIC management group held a meeting for prospective bidders to present information about the Statement of Qualifications. Seven firms responded to the invitation to submit Statements of Qualifications. Those entities were identified on or about March 6, 2001. Thereafter, the seven applicants were "short-listed" and four were selected to continue in the process. The short- listing review did not rank the applicants. The purpose of reviewing the qualifications at that time was to merely cull the group of applicants down to those most able to continue the process toward selection. Had only four applicants applied, most likely all would have proceeded to the next round of review. The Petitioner and Intervenor were two of the four entities that progressed to the next level. All four were invited to an information meeting on April 6, 2001. At that time the MIC management group made a Power Point presentation concerning the next phase of the selection process. The MIC management group explained the technical review process and were available to respond to any questions that the applicants might raise. Subsequently, each applicant was to provide a written technical proposal and was to give an oral presentation before the technical review committee (TRC). The written technical proposals from the four entities were due May 1, 2001. The Petitioner and Intervenor timely filed technical responses. The sufficiency of the Intervenor's technical response and oral presentation is not at issue. Instead, the Petitioner maintains that the score from the short-listing process should be averaged with the technical response score to achieve an overall ranking. That average was not done. Subsequent to the four oral presentations from the short-listed applicants, the TRC met for deliberations and ranked the entities based upon the technical responses and the oral presentations. The TRC did not have the authority to make the final selection. In fact, the TRC recommended their rankings to the selection committee. The selection committee met on May 31, 2001, to consider the recommendation of the TRC and selected the Intervenor as the first ranked applicant. Thereafter, the Petitioner timely filed the instant challenge to the selection. Turner Construction Company moved to intervene in the protest and by order entered June 22, 2001, was granted intervention in this case. When efforts to settle the dispute proved unsuccessful, the matter was forwarded to the Division of Administrative Hearings for formal proceedings on July 10, 2001. The RFQ in this case was developed by, and with the cooperation of, personnel from both the Department and DMS. It provided that the policies and procedures of DMS and the Department would apply in the selection process for the MIC CMAR. More specifically, the RFQ provided at page 1: Pursuant to policies and procedures of the State of Florida Department of Management Services and the Florida Department of Transportation statements of qualifications (SOQs) for Construction Management-At-Risk services for the Miami Intermodal Center (MIC) Program will be received at the Miami Intermodal Center Project Office 3910 NW22nd Street, Miami, Florida 33142, until 4:00 P.M. Eastern Standard Time, on Tuesday, March 6, 2001. * * * Beginning Monday, January 29, 2001, a "Request for Statements of Qualifications" will be available free of charge at the reception desk, Miami Intermodal Center Project Office 3910 NW22nd Street, Miami, Florida 33142. This package outlines the scope of the program, the SOQ format, evaluation criteria, submittal instructions, a description of the selection process and general project information. * * * Proposers are encouraged to bring all questions concerning this Request for Statements of Qualifications to the informational meeting. Page 2, Section 1.0 of the RFQ, provided, in pertinent part: The Florida Department of Transportation (FDOT) and State of Florida Department of Management Services (FDMS) jointly intend to select a construction manager-at-risk (Construction Manager) to provide pre- construction services and construction management-at-risk services for the construction of facilities and roadways constituting the Miami Intermodal Center Five Year Work Program. Pursuant to an agreement between FDOT and FDMS dated December 26, 2000, the selection process will be conducted pursuant to the policies and procedures of FDMS. FDOT may contract with the Construction Manager through FDMS and FDMS may provide certain owner representation on behalf of FDOT during the construction process. Therefore, references in this RFQ to FDOT shall also include FDMS when acting as a representative for FDOT. The selection process for the CMAR was set forth in Section 4, page 9 of the RFQ. That provision stated: The selection of the Construction Manager shall be based upon the qualifications and experience of Proposers as reflected in the statement of qualifications and the technical proposals and oral presentations of short-listed Proposers. The selection process will be a two-phase process. In the first phase, SOQs will be submitted for review and evaluated based on the evaluation criteria identified in Section 5. The most highly qualified Proposers will be short-listed and invited to submit technical proposals and provide oral presentations with the final ranking made in accordance with criteria generally described in Section 6. The Petitioner did not dispute the criteria to be used to evaluate the proposals. The Petitioner did not seek an explanation of the foregoing section of the RFQ and did not dispute the language of the section. Similarly, the Petitioner did not dispute the language of Section 5 that set forth the process to be used for short-listing the proposers. Section 6 was entitled "TECHNICAL PROPOSALS, ORAL PRESENTATIONS AND FINAL SELECTION." That section provided, in pertinent part: Upon completion of the short-listing, each of the Proposers selected on the shortlist will be invited to prepare a technical proposal and make an oral presentation to the Technical Review Committee. * * * All short-listed Proposers will be required to attend a presentation of the Program by the Program Manager on March 22, 2001. The presentation will provide detailed information regarding the design as generated to date and will answer any questions from short-listed firms. * * * FINAL SELECTION CRITERIA Following the technical proposals and oral presentations, the Proposers will be ranked by the Technical Review Committee based on the following criteria: Understanding of the Program and Requirements- * * * Approach and Method- * * * Ability to Provide Services- * * * The Technical Review Committee will rank short listed Proposers after all the presentations and interviews have been completed. The recommendations of the Technical Review Committee will be presented to the Selection Committee, which, will determine the official ranking of the Proposers. The RFQ did not require that scores from the short- listing process be averaged with the technical presentation phase. In fact, there were no scores from the short-listing process; the short-listed entities were identified in alphabetical order. If an averaging of scores was the Petitioner's understanding of the DMS policy or practice, the Petitioner did not request clarification to confirm such procedure during the time to pose questions to the MIC project manager. Neither the Intervenor nor the fourth ranked proposer understood the RFQ to require an averaging of scores. No one from DMS or the Department contemplated that the instant RFQ would be "scored" on a numerical basis. DMS and the Department had agreed that the recommendation of the TRC would be done on a consensus basis. To that end, members of the TRC rated the applicants using the terms "strong, average, fair, and poor." To provide more flexibility, the ratings were broken down into subgroups as follows: strong, strong/average, average/strong, average, average/fair, fair/average, fair, fair/poor, poor/fair, and poor. In this case, the Intervenor prevailed as the first-ranked proposer since it had one category noted as Strong/average, whereas the Petitioner had a category ranked Average/strong. Otherwise, the two proposals would have been rated identically. Recognizing this close evaluation, but still compelled to reach a consensus, the TRC recommended the Intervenor to the Selection Committee as the first-ranked proposer. No member of the TRC disputed the result of the consensus selection. No member of the TRC voiced any opposition to the final recommendation to the Selection Committee. Two employees of DMS participated on and with the TRC. The Selection Committee then considered the recommendation of the TRC. The Selection Committee asked questions to the TRC chairman as to how the consensus was reached, as to the ranking of the proposers, as to the considerations given to the proposers, and as to the final determination of the TRC. Had the Selection Committee chosen to disregard the TRC recommendation, it could have done so. Had the Selection Committee sought additional information based upon the closeness of the ranking for the top two proposers, it could have sent the matter back to the TRC for additional consideration and input. It did not. After considering the recommendation of the TRC, the Selection Committee adopted the consensus recommendation. The TRC consisted of eight individuals who independently ranked the technical proposals and the oral presentations of the short-listed applicants. They met as a group to discuss their individual findings and to compile the individual ratings they ascribed to each entity. All of the deliberations were done in an open meeting that was video-taped and made a part of this record. No one individual controlled the tone or ratings submitted by the TRC members. The TRC chairman compiled the individual ratings and reviewed all consensus rankings with the group. No TRC member was precluded from changing their individual rating. No TRC member was precluded from challenging the consensus reached on any category. The criteria used by the TRC were drafted by DMS and the Department staff to specifically address the needs of the MIC project. Such criteria took into consideration all policies and practices utilized by DMS. The criteria used to evaluate the proposals for the MIC CMAR project considered and addressed the criteria set forth in DMS form DBC-5033. There is no DMS practice, policy or procedure that mandates the use of form DBC-5033. When such form is typically to be used, it is included in the RFQ package. It was not included in the instant package, and no proposer sought clarification as to whether the form would be utilized in the instant case. DMS did not intend to combine the scores from the short-listing process and the technical review process in this case. When it does require a combination of the two scores, DBC form 5033 is typically used. Although referenced by the RFQ, the agreement between DMS and the Department regarding the MIC project was not made a part of the RFQ. Neither DMS or the Department advised the Petitioner that the scores from the short-listing process and the technical review phase would be combined. DMS does not require that all details of an evaluation or scoring method be disclosed in an RFQ. All parties were aware of the consensus recommendation to rank the Intervenor ahead of the Petitioner and were further cognizant that the Selection Committee would make the final decision in the matter.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation and the Department of Management Services enter a Final Order dismissing the Petitioner's Formal Protest. DONE AND ENTERED this 21st day of September, 2001, in Tallahassee, Leon County, Florida. J. D. PARRISH 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 21st day of September, 2001. COPIES FURNISHED: O. Earl Black, Jr., Esquire Department of Management Services 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950 Gregory S. Martin, Esquire Moye, O'Brien, O'Rourke, Hogan & Pickert 800 South Orlando Avenue Maitland, Florida 32751 Brian F. McGrail, Esquire Department of Transportation 605 Suwannee Street Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32399-0450 E. A. Seth Mills, Jr., Esquire Fowler, White, Gillen, Boggs, Villareal and Banker, P.A. 501 East Kennedy Boulevard, Suite 1700 Post Office Box 1438 Tampa, Florida 33601-1438 Paul Sexton, Esquire Thornton Williams & Associates 215 South Monroe Street South 600-A Tallahassee, Florida 32301 Cynthia Henderson, Secretary Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950 Monesia Taylor, Deputy General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950 Thomas F. Barry, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Pamela Leslie, General Counsel Department of Transportation Haydon Burns Building, MS 58 605 Suwannee Street Tallahassee, Florida 32399-0450
The Issue Whether Interstate-Tallahassee West has demonstrated that development rights in certain real property it owns have vested against the provisions of the 2010 Comprehensive Plan?
Findings Of Fact The Purchase of the Property. In the Spring and Summer of 1985, Thomas W. Anthony began an inquiry relative to the purchase and development of 21.5 acres (original tract) located at the intersection of Capital Circle West and I-10. (R-2, pp. 11-15.) On December 11, 1985, a Deposit Receipt and Contract for Sale and Purchase was executed between Rehold, Inc. and C. Gary Skartvedt, Thomas W. Anthony, and Mary J. Price, d/b/a Denver West Joint Venture (Denver, Colorado) for the purchase of the original tract. (Deposit Receipt and Contract for Sale and Purchase.) On March 14, 1986, the Interstate-Tallahassee West Partnership Agreement was executed and Interstate purchased the original tract from Rehold, Inc. (Chronological Listing of Events, p. 1.) At the time of the closing on the initial purchase of the original tract, the property was zoned C-2, with the exception of a small portion in the northwest corner of the tract which was zoned A-2. (R-2, pp. 34-35, Preliminary Plat approved on January 18, 1990.) Development Chronology. During 1987 and 1988 the original tract was held to realize growth potential in terms of Interstate's economic investment. (Chronological Listing of Events, p. 2.) In 1989, Interstate began negotiations for the sale of a portion of the original tract to Kent C. Deeb (Deeb). (Chronological Listing of Events, p. 2.) On June 26, 1989, Broward Davis and Associates, Inc. prepared a drawing of easement location and depiction of a 25 year flood line relative to the portion of the original tract which was the subject of the negotiations between Interstate and Deeb. (Chronological Listing of Events, p. 2, R-2 p. 20.) On September 12, 1989, Tilden Lobnitz and Cooper, Inc., (Consulting Engineers) recommended a reconfiguration of the original tract relative to the location of high voltage power lines. (Chronological Listing of Events, p. 2.) On October 11,1989, final descriptions of the lakes on the original tract were prepared for Interstate by Broward Davis and Associates. (Chronological Listing of Events p. 2.) On November 13, 1989, a sketch depicting a revised legal description of a proposal to subdivide the subject property was prepared for Interstate by Broward Davis and Associates, Inc. (Chronological Listing of Events, p. 2.) On December 7, 1989, an Environmental Assessment of the site was prepared for Interstate by Jim Stidham and Associates. (Chronological Listing of Events, p. 2.) On December 14, 1989, Deeb executed a Purchase and Sale Agreement which contemplated the conditional purchase of 6.98 acres of the original tract from Interstate. Interstate signed the Purchase and Sale Agreement on December 27, 1989. (Purchase and Sale Agreement, p. 8.) Interstate contends the execution of this Purchase and Sale Agreement resulted in it incurring substantial contractual obligations and argues that these obligations (along with other items and events) are elements in support of "common law vesting" of its development rights. This agreement is the subject of expanded discussion later in this Final Order. The services that Interstate obtained during 1989 (as described in paragraphs 6-11 above) were related to the eventual consummation of the Purchase and Sale Agreement with Deeb. (R-2, pp. 20-21 and 27, Chronological listing of Events, p. 2.) On January 18, 1990, the Tallahassee-Leon County Planning Commission approved Interstate's Preliminary Plat of the subject property. (Chronological Listing of Events, p. 3.) On April 4, 1990, the Tallahassee City Commission approved Interstate's previously filed application to rezone a portion of the subject property from A-2 to C-2. (Chronological Listing of Events, p. 3.) Interstate entered into a written Utility Agreement with the City on or about July 10,1990. (Letter of agreement dated June 25, 1990 from Henry L. Holshouser, Director of Growth Management, to Interstate Tallahassee West.) The Utility Agreement is the subject of expanded discussion later in this Final Order. On August 20, 1990 a Vested Rights Application covering 6.98 acres of the original tract, which is the subject of the Purchase and Sale Agreement between Interstate and Deeb, was approved. (Letter dated August 21,1990 to Kent Deeb from Mark L. Gumula, Director of Planning, Tallahassee-Leon Planning Commission, containing CERTIFICATION OF VESTED STATUS.) The Vested Rights Application for the approximately 15.6 acres remaining of the original tract was disapproved by the Staff Committee and that portion of the property is the subject of this appeal. (R-1, p. 17.) Interstate has not prepared a specific building or development design for the property which is the subject of this appeal. (R-2, p. 97, R-1, p. 5.) As of the date of the hearing in this case, Interstate had no specific building plans for the property which is the subject of this appeal. (R-2, p. 38.) As of the date of the hearing in this case, Interstate had not chosen a specific land use for the property. (R-2, pp. 38-39.) As of the date of the hearing in this case, Interstate had not made application for environmental permits for the property. (R-2, pp. 49 and 98.) As of the date of the hearing in this case, the only infrastructure that had been constructed on the original tract are two storm water ponds which were built in the 1970's, and prior to Interstate's purchase of the property. (R-2, pp. 86, 87.) Interstate was never assured by the City that the property could be used for any specific use such as a motel, apartments or offices. Interstate and the City made no commitments as to any specific uses of the property. (R-2, pp. 47-48.) The City advised Interstate by letter dated August 13, 1990, that the 2010 Comprehensive Plan requires Planned Unit Development zoning for an office park (which is by definition an office building or buildings of more than 40,000 square feet). (Letter from Martin P. Black, City's Chief of Land Use Administration, to Interstate Tallahassee West, dated August 13, 1990.) The City did not advise Interstate that it could not build such an office building on its property. (R-2, pp. 45, 46, and 100.) As of the date of the hearing in this case, Interstate had not requested a determination from the City as to whether the 2010 Comprehensive Plan would prohibit development of the property as the market might dictate. (R-2, p. 40.) At the hearing in this case, Interstate presented the testimony of Mr. Deeb regarding the existence of a master environmental permit for the original tract which was in place before Interstate purchased the property. (R-2, p. 67.) However, Interstate offered no evidence that such permit contemplated any specific use or density regarding development of the property. Costs Associated with Interstate's Property. Interstate purchased the original tract in 1986 at a cost of $748,000. (R-2, p. 17; Development Expenditures.) The cost to purchase the property was not incurred in reliance on any representation of the City. Interstate has expended $325,063.82 in interest on acquisition loans, pursuant to the property purchase. (Development Expenditures.) The interest cost on acquisition loans was not incurred in reliance on any representation of the City. Interstate has expended $46,824.95 in Ad Valorem taxes on the property. (Development Expenditures) These costs were not incurred based on any representation of the City. Interstate has expended $28,839.75 on engineering and survey work on the property. (Development Expenditures) The costs of the engineering and survey work during 1989 were substantially incurred by Interstate in conjunction with the negotiations of the potential sale of the 6.98 acre parcel of its property to Deeb. (Chronological Listing of Events, pp. 2-3; R-2, p. 27.) These costs were not incurred based upon any representation of the City. Interstate has expended $8,500.00 in legal and miscellaneous fees associated with development of the original tract and the potential sale of the 6.98 acres to Deeb. (Chronological Listing, Development Expenditures) Interstate has failed to prove that these costs were incurred based on any representation of the City. The Purchase and Sale Agreement with Deeb. Negotiations between Interstate and Deeb regarding The Purchase and Sale Agreement began in the Spring of 1989. (R-2, p. 20.) Deeb executed the agreement on December 14, 1989, and the Interstate partners signed the agreement on December 27, 1989. (Purchase and Sale Agreement, p. 8.) Interstate does not assert that the City was privy to this agreement and has failed to prove that it relied on any representation of the City in entering into this agreement or in incurring any costs or future obligations pursuant to the agreement. Interstate was aware that the 2010 Comprehensive Plan was being developed when the Tallahassee-Leon Planning Commission approved Interstate's Preliminary Plat on January 18, 1990. (R-2, p. 50.) Interstate knew that the Comprehensive Plan "was coming" at the time Mr. Anthony (partner in Interstate) understood that the original tract was to be subdivided in order to "cut out" a site for Deeb so as to "key on him" as to the development of the property. (R-2, p. 46.) The Preliminary Subdivision Plat drawing, subsequently presented to the Tallahassee-Leon Planning Commission, is dated November 29, 1990. (Preliminary Subdivision Plat as approved on January 18, 1990.) The testimony of Thomas W. Anthony that Interstate would not have entered into the Purchase and Sale Agreement with Deeb if it knew that it would not be able to move forward with C-2 development of the remaining lots is accepted. (R-2, p. 36.) However, Interstate has failed to prove that it relied on any representation of the City that it could so proceed upon adoption of the 2010 Comprehensive Plan. The Utility Agreement. The Utility Agreement (previously described in paragraph 16) was executed by the City on June 25, 1990. The agreement was signed by on behalf of Interstate on June 29, 1990, by C. W. Harbin and Tommy Faircloth, and on July 10, 1990, by Mr. Anthony. This agreement outlines what Interstate and the City have each agreed to do in terms of Interstate's proposed development. The agreement describes Interstate's proposed development activity in general terms as "commercial development". In this agreement, the City makes no representation or commitments relative to any specific land use or specific density concerning Interstate's property. Interstate has failed to prove that the City, in executing the Utility Agreement, made any representation upon which Interstate relied in incurring any costs or future obligations. The Preliminary Plat Approval. The Preliminary Plat Approval of January 18, 1990, does not contemplate any specific uses, intensities or designations. (R-2, pp. 47-48.) Interstate has failed to prove that the approval of the Preliminary Plat constitutes an act or representation upon which Interstate relied in incurring any costs or future obligations. The A-2 Rezoning Approval. Interstate has failed to prove that it relied upon the act of the City, in approving Interstate's request to rezone a portion of the original tract from A-2 to C-2 in incurring any costs or future obligations. Interstate's Application for Vested Rights. On or about July 25, 1990, Interstate filed an application for vested rights determination (Application), with the Tallahassee-Leon County Planning Department. (Application VR0008T.) The Following information concerning the development of the subject property is contained on the Application: "Kent C. Deeb" is listed as the "owner/agent". Question 3 lists the name of the project as "Interstates Tallahassee West." The project is described as a "Four Lot Subdivision." The project location is described as "lots 1 and 2 Block A Commonwealth Center." The total project costs are estimated at $2.5 Million." Progress towards completion of the project is listed as: A. Planning: "Plans; Rezoning; Subdivision Plat Approval; Utility Agreement for Extension with the City"; B. Permitting: "Existing with the original Commonwealth Center Development; C. Site Preparation: "Zoning, Platting, and Plans"; D. Construction: "Original Holding Ponds". Total expenditures to date attributed to the progress towards completion of the project are listed as $1.325 Million. The form of government approval allowing the project to proceed is listed as "Original Plat; Rezoning; Subdivision Plat." On August 20, 1990, a hearing was held to consider the application before the City's three member Staff Committee. Kent C. Deeb appeared and testified for Interstate. By letter dated August 21, 1990, Mark Gumula, Director of Planning for the Tallahassee-Leon Planning Department, informed Interstate that the Application had been denied. During the hearing before the undersigned, Interstate stipulated that it sought approval of its Application based upon "common law vesting" and not upon "statutory vesting," as those terms are defined in City of Tallahassee Ordinance 90-0-0043AA.
Findings Of Fact Certificate of Need No. 1645 was issued to Respondent on July 27, 1981, for construction of a 120-bed nursing home at a cost of $1,830,000 in the city of Safety Harbor, Pinellas County, Florida. Termination date of the certificate was originally July 25, 1982, but was subsequently extended for a period of six months at the request of Respondent. The expiration date of the certificate, as extended, was January 25, 1983. At the time the six-month extension was granted, Petitioner advised Respondent that the project was required to be ". . . under physical and continuous construction prior to the new termination date to have a valid and continuing Certificate of Need." Subsequent to the issuance of the certificate, Respondent retained and engaged personnel and organizations to assist in pursuing the project. The architectural firm of Wilson and Associates ("the architect") was engaged in August of 1981. Additionally, Respondent engaged the Kissell Company to secure financing, and the Hermanson Construction Company ("Hermanson") as the general contractor for the project. Respondent obtained preliminary approval of its site plan for the project from the City of Safety Harbor ("the City"). Additionally, the City created a zoning ordinance specifically for the project to permit a health care facility to be constructed at the proposed site. On September 21, 1981, the architect met with representatives of the HRS Office of Licensure and Certification, Jacksonville, Florida, to submit and review schematic plans for the project. HRS gave preliminary approval to the schematic plans on that same date. The HRS plan review process consists of three stages. The first stage consists of the submission of schematic plans; the second stage is the submission of preliminary plans; and, the third stage consists of submission of construction documents together with the required fee for final plan review. On November 13, 1981, the architect submitted additional schematics to HRS to complete the first stage of the plan submission process. In addition, the architect provided additional information previously requested by HRS on that same date. On December 14, 1981, the architect submitted the second stage documents to HRS. The HRS Office of Licensure and Certification, however, never responded to or commented on the submissions made by the architect in November and December of 1981. In early January, 1982, Respondent closed the purchase of the project site in Safety Harbor. Respondent paid a total of $165,000 for the site. In April, 1982, Respondent met with representatives of the City to discuss the issuance of industrial revenue bonds by the City to finance the project. Further, on April 19, 1982, Respondent purchased a corporate office in Safety Harbor at a cost of $80,000. After meetings between representatives of the City and Respondent, the City agreed to consider the issuance of industrial revenue bonds. Respondent paid $10,000 to the City in June, 1982, to offset any costs that the City would incur in considering the bond issue proposal. In addition, Respondent paid $4,000 to the City to resolve a dispute between the City and the previous owner of the property on which the project was to be located. On June 1, 1982, Respondent entered into a construction contract with Hermanson to construct the proposed nursing home project. A copy of the contract was furnished to the HRS Office of Community Medical Facilities. In August of 1982 Hermanson commenced its activities under the contract. These activities included obtaining proposals from subcontractors for materials and services to be used in the project, and hiring engineers to survey the site, conduct soil borings, and to conduct a tree survey required by local governmental authorities. Respondent secured financing for the project in September, 1982. On September 20, 1982, the City passed a Resolution of Inducement agreeing to issue revenue bonds to finance acquisition, construction, equipping, and furnishing the project. On September 20, 1982, Respondent and the City also entered into a Memorandum of Agreement regarding issuance of revenue bonds. In the latter part of 1982, Respondent was required to obtain approval of the project from numerous other local governmental entities. Specifically, Respondent obtained approval of the Site Development Plan and an amendment to the Land Use Plan from the City's Planning and Zoning Board, the City Commission, and Pinellas County. As part of the Site Development Plan approval, the City required Respondent to agree to make a number of offsite improvements, including the dedication of a 25-foot right-of-way, the paving of an adjacent roadway at Respondent's expense, and the construction of sidewalks. Respondent agreed to the conditions and the City and Pinellas County approved the Site Development Plan and the amendment to the Land Use Plan. Because of the City's requirement that Respondent dedicate a 25-foot right-of-way, Respondent was required to obtain a setback variance from the City because the proposed building location did not meet the City's property line setback limitations. On November 5, 1982, the architect submitted the third stage construction documents and plan review fees to HRS to complete the plan review process. On that same date, the architect spoke with representatives of the HRS Office of Licensure and Certification about obtaining HRS permission for an early construction start on the foundation work for the project. The architect was advised that an early start could not be granted until the third stage submissions had been reviewed. Throughout 1982, Respondent made numerous submissions to the Federal Housing Authority (FHA) and the Department of Housing and Urban Development (HUD) to obtain an FHA commitment to insure project financing. On November 26, 1982, Respondent obtained a conditional commitment from HUD for that purpose. Subsequently, on January 21, 1983, Respondent obtained FHA approval for an early start of project construction. The early start permitted construction costs to be covered by the insurance guarantee, prior to the issuance of the firm commitment. On January 25, 1983, Respondent obtained a firm commitment from HUD to insure project financing. The firm commitment insured both the construction and permanent financing. The FHA and HUD commitments and guarantees were still valid and effective at the time of final hearing in this cause, although a month-to-month extension had to be obtained by Respondent. Prior to January 25, 1983, Respondent had also obtained the following permits or approvals: an exemption from the Florida Department of Environmental Regulation from stormwater discharge permitting requirements; water and sewer service availability from the City; a City occupational license; a building permit from the City; a tree removal permit from Pinellas County; and business licenses from both the City and Pinellas County. Prior to January 25, 1983, the following work had been performed on the project site: a construction trailer was placed on the site; a fence removed and utilities, with the exception of water, were installed; a large lake and related storm sewer system had been relocated on the site; a survey had been performed and the site cleared and trees removed; the site was cut to subgrade and a pad prepared for the building foundation; and the building site had been roughed out and finished floor elevations had been set. As a result, the site is now ready for the placement of footers and foundations. Although the footers and foundation work have not been constructed, the record in this cause establishes that they could be in place within two weeks from the time approval is given for such work. At the time of final hearing in this cause, HRS had not given its approval for construction of the building foundation. Approximately $130,000 has been spent by Respondent on construction work at the site, which includes money paid to subcontractors for work and services provided. When contacted by the architect on January 24, 1983, one day prior to the expiration date of the certificate, the HRS Office of Licensure and Certification advised the architect that the third stage plan review process was at that time only 60 to 75 percent complete. On February 8, 1983, the HRS Office of Licensure and Certification first responded to Respondent's third stage construction documents which had been submitted by the architect on November 5, 1982. HRS advised the architect that it could not approve the project plans and submitted a number of comments and revisions to be incorporated into the plans. On February 17, 1983, the architect submitted the changes and corrections to HRS to comply with the February 8, 1983, HRS letter. On or about February 17, 1983, the architect again spoke with HRS representatives about obtaining permission for an early construction start but, again, permission was not granted. In the first week of March, 1983, Respondent contacted HRS to inquire about the status of his certificate. Respondent was concerned that HRS had not responded to his letter of January 14, 1983, in which he advised HRS that the project was under construction. HRS representatives advised Respondent in the first week of March, 1983, that an investigation of the matter would be made and that HRS would respond at a later date. In late March, 1983, after having received no notification from HRS, Respondent again contacted HRS representatives about the status of the certificate, and was advised that the certificate was considered to be null and void. Subsequently, on April 5, 1983, HRS sent a letter to Respondent advising him that the certificate was null and void since ". . . the project was not under physical continuous construction beyond site preparation by January 25, 1983." Effective June 5, 1979, HRS promulgated Rule 10-5.02(21), Florida Administrative Code, which defined the term "construction" to mean: . . . the commencement of and continuous activities beyond site preparation normally associated with erecting, altering or modifying a health care facility pursuant to construction plans and specifications approved by the department (Emphasis added.) That rule was challenged and ultimately invalidated by a DOAH Hearing Officer by Final Order entered April 18, 1980. The order of the Hearing Officer was subsequently upheld by the First District Court of Appeal in Westchester General Hospital v. State of Florida, Department of Health and Rehabilitative Services, 417 So.2d 261 (Fla. 1st DCA 1982). As a result, on January 25, 1983, the date of expiration of the Certificate of Need at issue in this proceeding, HRS had no "rule" that defined the terms "construction" or "commencement of construction." It is, however, clear from the record in this proceeding that the definition of "construction" contained in the invalidated rule is more restrictive than that generally utilized in the construction industry. In fact, the record in this cause establishes that "construction," as that term is used in the industry, "commences with the execution of a construction contract. Other factors indicative of "commencement of construction" would include the ordering of building materials, the solicitation and signing of contracts with subcontractors, the acquisition of required permits from various governmental entities, the preparation of drawings associated with the project, and the like. All of these activities necessarily precede "site preparation" and the pouring of footers and foundations and the placement of steel. It is undisputed that Respondent had not placed any concrete, steel, or footings on the project site prior to January 25, 1983. However, it is equally clear that those activities outlined above which Respondent had, in fact, accomplished prior to January 25, 1983, conformed to the definition of "commencement of construction" generally accepted by professionals in the construction industry. Conversely, there is no competent or persuasive evidence of record to "elucidate," "explicate," or otherwise support the purported HRS policy of requiring the placement of foundations, footings, concrete, or steel on the job site prior to the expiration date of a certificate of need. Neither is there any evidence of record in this cause to establish that HRS at any time advised Respondent of its policy requiring the placement of footers, foundations, or steel in order to comply with HRS's purported policy.
The Issue Whether land Santa Rosa County has zoned "Planned Business District" lies in a commercial or industrial zone within the meaning of Section 479.01(2), Florida Statutes (1985) and Rule 14-10.0051(2), Florida Administrative Code?
Findings Of Fact By applications dated July 18, 1986, petitioner Bill Salter Outdoor Advertising (Salter) sought permits to mount back to back signs, ten feet high and 36 feet wide, on a metal "unipole" 40 feet above the ground, Petitioner's Exhibit No. 1, on the south side of U.S. Highway 98 in Santa Rosa County, 11.5 miles east of State Road 399. The site proposed for the signs lies outside any incorporated municipality, about halfway between Gulf Breeze and the Okaloosa County line. The proposed site is near the northeast corner of a parcel with 1,300 feet fronting U.S. Highway 98. The signs would stand 50 feet from the highway right of way, some 1,066 feet east of the nearest building, which is part of a privately owned zoo, forthrightly named "The Zoo." Whether The Zoo will ever expand, as Pat Finn, the proprietor, reportedly hopes, is not clear from the evidence. Mr. Finn gave Salter written permission to apply for the permits, and executed a lease in Salter's favor. Petitioner's Exhibit No. 3. Salter applied for and obtained written approval from Santa Rosa County's planning department to erect the signs for which it now seeks permits. No other highway signs have been permitted in the immediate vicinity since October 1, 1984. Across the street, mechanics repair automobiles and motorcycles at a commercial garage. Also on the north side of the highway is a lumber company, about a quarter of a mile from the site, and an establishment selling campers, maybe half a mile from the site. For several miles in either direction, much of the property along this four-lane divided highway is undeveloped, but there are occasional shopping centers, Convenience stores, restaurants and other commercial establishments, including a boat dealer and tent merchant. For several miles in either direction, with the exception of one or two residences, all residential development is more than 300 feet back from U.S. Highway 98, and most of it is more than 500 feet back. In response to recent legislation, Santa Rosa County hired Robert Eugene Arn, Jr., in the spring of 1986, to head its planning department and to review zoning in the county, including in the area in question. According to Mr. Arn, erection of the proposed signs is permissible under Santa Rosa County's present zoning. Before his arrival, an ad hoc committee had examined aerial photographs, considered present and potential land uses in the area, and otherwise informed itself on the circumstances over a period of about a year. The county adopted a zoning ordinance, effective June 24, 1986, covering south Santa Rosa County. Consistently with the purposes of the ordinance, and with the comprehensive plan, the proposed site has been zoned "Planned Business District" (PBD), allowing commercial activity on parcels of adequate size, without requiring variances or special exceptions for commercial uses, which uses need not be incidental to other, primary land uses. In pertinent part, the ordinance provides: PLANNED BUSINESS DISTRICT Within this district as shown on the zoning map of the South Santa Rosa County Planning Area, Florida, the following regula- tions shall apply: INTENT AND PURPOSE, PERMITTED USES: Intent and Purpose: It is the purpose of this article to permit Planned Business Developments along major arterials and to encourage the development of this land with highway frontage as planned communities, and business and commercial centers; encourage flexible and creative concepts of site planning; preserve the natural amenities of the land by encouraging functional open areas; accomplish a more desirable environment that would not be possible through the strict application of the minimum requirements of these regulations; provide for an efficient use of land resulting in smaller networks of streets and utilities where access to regional systems is impractical and thereby lowering development and housing costs; and provide a stable environmental character compatible with surrounding areas; limit access on to major arterials to central locations in order to reduce safety hazards posed by unlimited or uncontrolled access. Permitted Uses: The uses permitted within this district shall include the following: Residential units, including single- family attached and detached dwellings, two-family dwellings and multiple-family dwellings. Churches, schools, community or club buildings and similar public and semi-public facilities. Non-residential uses, including commercial or retail uses, offices, clinics and professional uses. Mobile homes (as defined in Section 1.1.) are prohibited in Area #1 (as defined in Section 1.1.). The basis for this restric- tion is found in the already developed nature of Area #1 and the need to protect established property values from uses that could potentially adversely affect such values. DEFINITIONS: In addition to the definitions contained in Section 1 of this ordinance, the following terms, phrases, words and derivations shall have the following meaning: Planned Business Development: An area of land of at least fifteen (15) acres devoted by its owner to development as a single entity for a number of dwelling units, and/or commercial uses in accordance with a plan which does not necessarily comply with the provisions of Sections 3 through 6 of this ordinance with respect to lot size, lot coverage, setbacks, off-street parking, bulk or type of dwelling, density and other regulations. Plan: The proposal for development of a Planned Business Development, including a plat of subdivision, all covenants, grants of easements and other conditions relating to use, location and bulk of buildings, density of development, common open space and public facilities. The plan shall include such information as required by Article D of this Section. PROCEDURE FOR APPROVAL OF A PLANNED BUSINESS DEVELOPMENT: When a parcel of land is zoned for Planned Business District (PBD), such parcel shall not be subdivided into smaller parcels less than fifteen (15) acres in size without first complying with the provisions of this Section for Master Planning. The procedure for obtaining approval for the purpose of undertaking a Planned Business Development shall be as follows: Preliminary Planned Business Development and Master Plan Approval: The applicant shall submit to the Planning Director, his application for the approval of the Planned Business Development and shall submit the following exhibits at the same time: (a) A statement of objectives describing: The general purpose of the proposed development. The general character of the proposed development. A Master Plan. A Master Plan, drawn at a scale suitable for presentation, showing and/or describing the following: Proposed Land Uses. Final Development Plan: If approval for the Planned Business Development is granted, the applicant shall submit a Final Planned Business Development Plan covering all or part of the approved Master Plan within twelve (12) months, to the Planning Director. The Final Development Plan shall include the following exhibits. A statement of objectives: The general purpose of the proposed development. The general character of the proposed development. (5) Revision of a Planned Unit Development: Any proposed major and substantial change in the approval Preliminary Planned Business Development Master Plan which affects the intent and character of the development, the density or land use pattern, proposed buffers, the location or dimensions or arterial or collector streets, or similar substantial changes, shall be reviewed by the Planning Department in the same manner of the initial site plan approval. A request for a revision of the Preliminary Planned Business Development Master Plan, shall be supported by a written statement and by revised plans demonstrating the reasons the revisions are necessary or desirable... By use of the master plan mechanism, the ordinance reserves many areas for future designations. But, at the same time that it adopted its zoning ordinance, Santa Rosa County adopted maps showing a corridor in which commercial development is contemplated, extending 300 to 500 feet either side of the highway. Single family residences would normally be 300 to 500 feet back from the highway, although nothing in the ordinance precludes single family residences adjacent to the highway. The property across the road from the proposed site has been zoned PBD and "HCD", or highway commercial development. Land zoned HCD can be developed commercially, but multiple family housing is also allowed. DOT has granted permit applications for sites zoned HCD. DOT has never denied such an application, as far as the record reveals, but DOT's Mr. Culpepper testified that DOT would deny an application for a site zoned HCD if it were located in a (multi-family) residential area. DOT's stated reason for proposing to deny Salter's most recent applications is "unpermittable zoning": "PBD is not acceptable zoning for a state sign permit." Petitioner's Exhibit No. 2. At hearing, Mr. Culpepper explicated the Department's position, testifying that, if the area in question were the subject of a master plan specifying commercial uses, the signs could be permitted; but that, because PBD zoning allows both residential and commercial uses, and the ultimate fate of the property is not yet legally specified, no permit can issue. Of course, as much of the property as has been developed is now given over to a commercial use, The Zoo, with its parking lot and gift store. Santa Rosa County's current policy is to allow land uses antedating adoption of zoning ordinances to persist, even if they are non-conforming. No master plan covering the area in question has been filed.
