The Issue The issue is whether Respondents discriminated against Petitioner, Christa Bartok, on the basis of her disability, in violation of the Fair Housing Act (FHA).
Findings Of Fact Based on evidence offered at hearing and testimony of witnesses, as well as the facts agreed upon in the Pre-hearing Stipulation, the following Findings of Fact are found: Bayou Breeze is a residential condominium association in Pensacola, Florida. Ms. Bartok was a prospective buyer of a condominium unit from its owner, a Bayou Breeze resident. The address of the unit was 300 Bayou Boulevard, Unit 106, Pensacola, Florida. Ms. Bartok is a person with a non-visible disability, which she described as anxiety, emotional distress disorder, and an autoimmune disease. Ms. Bartok was also the owner of a dog named Moni, weighing more than 40 pounds. She identified Moni as her emotional support dog. At all times material to this matter, Ms. Bartok was represented by Simone Sands, a real estate broker. The seller of Unit 106 was represented by Greg Thomas, also a realtor. The communication regarding all aspects of the sale of the property was through the two realtors. At the time of executing the contract, Bayou Breeze3 Bylaws provided, in pertinent part, Pets. Pets shall be kept or maintained in and about the condominium property only if unit owner is granted a conditional license to maintain one pet by the Association. Such a license will be granted subject to the following conditions and reservations: A. Acceptable Pets. The only pets to be maintained on condominium property shall be dogs under twenty (20) pounds when fully grown, cats and small birds. In addition, the Declaration of Condominium Paragraph XVI provided, in pertinent part, Approval of Purchasers, Lessees and Transferees No unit owner shall sell, lease or otherwise convey a unit, nor shall any sale, lease, conveyance or transfer of a unit other than by foreclosure or by devise or operation of law on account of the death of the unit owner, be effective unless the board of directors of the Association shall have approved the identity of the proposed purchaser, lessee or transferee in writing. Application of a proposed purchaser, lessee or transferee shall be in writing and on a form to be provided by the Association and shall be accompanied by two letters of recommendation. Any such application not rejected within 10 days after receipt by the Association or an officer thereof shall be deemed to have been approved. The costs for the submission of an application shall not exceed $100. … 3 The association name changed from Pensacola Executive House Condominium Association, Inc. to its current name. Right of First Refusal Should an Owner wish to sell or transfer his Unit, he shall deliver to the Association an Owner’s written notice containing a copy of the executed purchase agreement between buyer and seller, which agreement shall be executed subject to the Associations [sic] waiver of its right of first refusal and consent to the sale or transfer. The Owner shall also submit to the Association, within five (5) days from receipt of any request from the Association, any supplemental information as may be required by the Association. Ms. Bartok received the declarations and bylaws. However, a list of items to be submitted to the Association for sale of a property was provided to the owner, which included: letter of intent to sell, application for sale/transfer, two letters of recommendation, background check, and contract for sale. The list of items provided to the owner was not provided to Ms. Bartok. On June 20, 2020, Ms. Bartok executed a residential contract for purchase of Unit 106. A term that Ms. Bartok included in the contract provided, in pertinent part: “contingent upon buyer receiving HOA approval for her emotional support dog which is over condo weight restrictions but meets Fair Housing Act requirements for HOA waiver.”4 Ms. Bartok also provided a letter with her contract dated June 15, 2020, from her treating physician, Timothy Tuel, M.D., of Baptist Health Care. The letter stated: Dear Christa, I do believe you have several medical conditions that would benefit from a properly trained emotional support animal. Please contact me if you have other questions. 4 Ms. Bartok executed a counteroffer for the property on June 24, 2020, which did not change the term regarding approval of her ESA. Although, the letter does not specifically identify Ms. Bartok’s disability, it references her “medical conditions,” and that she could benefit from having an ESA. In addition to the contract and letter from Dr. Tuel, Ms. Bartok provided a completed application, two letters of recommendation, and a receipt for training for her dog.5 Ms. Bartok did not provide a completed background check because Mr. Thomas had advised Ms. Sands that the “HOA manager does it.” In addition, on June 30, 2020, in response to Ms. Sands’ text of, “good morning any reply from HOA,” Mr. Thomas indicated, “[n]o, not yet they’re doing background check.” Thus, Ms. Bartok had a reasonable belief that she could rely upon Mr. Thomas’ statement that the HOA was facilitating the background check and there was no need to provide the information at that time. Ms. Trimaur, the property manager for the Association, has managed Bayou Breeze condominiums for more than 11 years, and generally, receives all applications for sale or transfers of units at Bayou Breeze. She received the application materials Ms. Bartok submitted for the sale of Unit 106, which included the sales contract, letter from Dr. Tuel, reference letters, and the receipt for pet training sessions. Although Ms. Trimaur stated that it was difficult to read the digital copy of the letter from Dr. Tuel, she recalled that there was reference to Ms. Bartok’s “medical condition.” Ms. Trimaur also testified that Mr. Thomas told her that Ms. Bartok requested a waiver of the pet policy. Ms. Trimaur did not receive the financial or criminal background information with Ms. Bartok’s application packet. Ms. Trimaur submitted the application materials to Mr. Cross for review. She testified that she also had verbal discussions about the dog with Mr. Cross. 5 The receipt for training referenced “Beginner Training-for Moni” and was scheduled to begin on July 25, 2020. Mr. Cross, the president of the association, reviewed a copy of the application materials. He testified that Ms. Trimaur bypassed normal approval process by submitting the packet without the background checks due to COVID-19. As the Association president, Mr. Cross is required to review all application materials to determine whether the Association elects to exercise its right of first refusal. Mr. Cross testified that he reviewed the contract. However, he testified that he did not recall reading Ms. Bartok’s term that the acceptance was contingent upon approval of her emotional support dog. Mr. Cross did not state that there were pages missing or that there was anything that would prevent him reviewing the contract in its entirety. Mr. Cross testified that he reviewed the recommendation letters,6 which noted the size of Petitioner’s dog. He also spoke to Ms. Trimaur about the dog. After review of the application materials that Ms. Bartok submitted, Mr. Cross sent a letter to Anai, the owner of Unit 106, on July 2, 2021. The letter stated: Dear Anai, The association is in receipt of your request to sell your condominium unit 106 Bayou Breeze Condominiums, 300 Bayou Breeze, Pensacola, Fla. As you know there are specific requirements a potential new purchaser of a condominium must meet, according to the Bayou Breeze Declaration of Condominiums, Articles of Incorporation, By-Laws and Rules and Regulations, before they will be eligible to purchase a Condominium at the said premises. Section X of the By-Laws states the following: Pets. Pets shall be kept or maintained in and about the 6 The recommendations were not offered into evidence in this case. condominium property only if a unit owner is granted a conditional license to maintain one pet by the association. Such a license will be granted subject to the following conditions and reservations: Section A clearly states that a dog weighting [sic] 20 pounds or less that was fully grown could qualify. Section D. states that the dog must be carried in the arms when taken in and out of the building. The information that you have submitted so far is primarily the request for the Association to waive its pet restrictions in accordance to the By-Laws, section X of the Condominium Governing Laws. Unfortunately, that is something that we cannot do. Don’t get me wrong, I love dogs. I, at one time lived at Bayou Breeze but had to move because I wanted a dog. I have been the president of this association for 29 years. Over the years the association has had many requests much like your potential buyer’s request to waive our rules. We are well aware of the HUD laws as well as the American Disability Act. We have, unfortunately been to court several times on this issue. We have never waived the pet requirements. Even though we have not received all of the background information and detailed documentation that is necessary for the Association to approve a purchase of this unit, I am notifying you that the Association cannot except [sic] this application, because of the current situation that you have presented. Sincerely Charles D. Cross President, Bayou Breeze Condominium Association 300 Bayou Breeze, Pensacola, Fl. 32501 Mr. Cross acknowledged in his written position statement that Ms. Bartok submitted a request for waiver for an ESA. He testified that he did not deny the request for an ESA because it was not clear to him that the request was for an ESA. Both Mr. Cross and Ms. Trimaur testified that Ms. Bartok’s request for an ESA was not accepted because the materials provided were incomplete, i.e. that the application did not include the financial and criminal background check. Both Ms. Trimaur and Mr. Cross testified that other tenants of Bayou Breeze have been approved for ESAs. The letter from Mr. Cross to Anai is inconsistent with Mr. Cross’ testimony. First, the letter signed by Mr. Cross clearly states that he is aware of the request for a “pet waiver” and stated that he is “well aware of the HUD laws as well as the American Disability Act. … We have never waived the pet requirements.” Second, the letter states that “Even though we have not received the background information, … the Association cannot except [sic] the application, because of the current situation that you have presented.” At hearing, Mr. Cross testified that he expected to receive more information. If the application packet was incomplete and Mr. Cross expected to receive additional information, it would follow that Mr. Cross would specify in writing to Anai the items that were needed to complete the application. That did not happen in this case. The letter makes no reference that additional information could be provided or what information was necessary. Last, Mr. Cross claimed the letter to Anai was not a denial letter. However, it clearly stated that the request to waive the pet restriction was something the Association could not do and has never done, even when involving the ADA. The undersigned finds that the statements in the letter together with the term in the contract seeking a waiver and Ms. Bartok’s letter from her physician demonstrates that Respondents had notice of Ms. Bartok’s request for a reasonable accommodation pursuant to the ADA. The undersigned also finds that Respondent’s letter of July 2, 2020, was a denial of Ms. Bartok’s application for purchase of Unit 106 based on her request for a reasonable accommodation, a waiver for her ESA. Ms. Bartok testified that she believed the July 2, 2020, letter was a denial of her application. Believing she could not purchase the property, she canceled the contract on the same date. After Ms. Bartok canceled the contract, believing that the Association improperly denied her request for a “pet waiver” for her ESA, she submitted a letter dated July 8, 2020, requesting a reasonable accommodation for her disability. That letter included another letter from Dr. Tuel, to the Association, which stated, in pertinent part: Dear Housing Association: Christa Bartok is my patient and has been under my care since April 7, 2020. I am intimately familiar with her history and with the functional limitations imposed by her disability. She meets the definition of disability under the Americans with Disabilities Act, the Fair Housing Act, and Rehabilitation Act of 1973. Due to [intentionally omitted] illness, Christa Bartok has certain limitations regarding performing some life activities. [Intentionally omitted] can be a direct effect of a chronic illness. In order to help alleviate these difficulties, and to enhance his/her ability to live independently and to fully use and enjoy the dwelling unit you own and/or administer, I am prescribing an emotional support animal that will assist Christa Bartok in coping with his/her disability. Her dog Monroe (Moni) qualifies as an emotional support animal under the guidelines put forth by the Fair Housing Act and The American’s [sic] with Disabilities Act. … Ms. Bartok credibly testified that she submitted the letter with attachments to Mr. Cross’ email address. She submitted a second request for reconsideration of the Association’s decision on July 10, 2021. Ms. Bartok did not receive a response to her letters. Although Mr. Cross confirmed his email at the final hearing, he denied receiving Ms. Bartok’s emailed requests for reasonable accommodation. The undersigned credits Ms. Bartok’s testimony on the issue of whether the emails were sent to Mr. Cross. Ms. Bartok testified that after she canceled the contract, she purchased another home. She asserts that she incurred costs for the difference in the amount of the mortgage she has paid since the denial letter was issued, the difference in costs for HOA dues, and the loss associated with extending her rental agreement prior to purchasing her new home. Ms. Bartok did not provide any supporting documents to demonstrate her loss that she asserts she incurred as a result of Respondent’s discriminatory actions. Ultimate Findings of Fact The evidence demonstrates that Ms. Bartok established that she suffers from anxiety, emotional distress disorder, and an autoimmune disease, and therefore, she has proved by a preponderance of the evidence that she is disabled within the meaning of the FHA. Ms. Bartok’s additional term included in her application for sale and the request for accommodation submitted following rejection of her application, was sufficient to demonstrate by a preponderance of the evidence that the Association was on notice that Ms. Bartok sought the “pet waiver” as a reasonable accommodation for her ESA. The undersigned finds the preponderance of evidence supports a finding that approving Ms. Bartok’s dog as an ESA was a reasonable accommodation that would assist Ms. Bartok by providing emotional support; and Respondents refused the requested accommodation. There is not sufficient evidence to establish that the Association has articulated a legitimate, non-discriminatory reason for withholding approval of Ms. Bartok’s ESA. Therefore, Ms. Bartok established by a preponderance of evidence that Respondents discriminated against her based on her disability, by failing to approve a request for a reasonable accommodation (approving Ms. Bartok’s ESA) in violation of the FHA.
Conclusions For Petitioner: Christa N. Bartok, pro se 203 Southeast Syrcle Drive Pensacola, Florida 32507 For Respondent: Sharon D. Regan, Esquire Post Office Box 13404 Pensacola, Florida 32591
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order granting Christa Bartok’s Petition for Relief, in part, as follows: finding that Respondents engaged in a discriminatory housing practice based on Ms. Bartok’s disability, by failing to provide a reasonable accommodation to Ms. Bartok in the form of an ESA; and (b) ordering Respondents to prohibit the practice of denying reasonable accommodations to individuals and potential buyers who request a reasonable accommodation on the basis of their disability. Ms. Bartok, having failed to prove she suffered any quantifiable damages as a result of her purchase of a different home, she is not entitled to damages or other financial relief. DONE AND ENTERED this 8th day of October, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: S YOLONDA Y. GREEN Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of October, 2021. Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 Sharon D. Regan, Esquire Post Office Box 13404 Pensacola, Florida 32591 Christa N. Bartok 203 Southeast Syrcle Drive Pensacola, Florida 32507 Stanley Gorsica, General Counsel Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020
The Issue The issue presented by the Motion and supplemental Motion to Dismiss is whether the Golden Gate Area Taxpayers Association (Association) has standing to maintain this challenge to the applications for consumptive use permits sought by Collier County (County) and the City of Naples (City) from the South Florida Water Management District (District).
Findings Of Fact The County filed its application number 08158A with the District for modification of consumptive use permit number 11-00249-W, on or about August 15, 1988. The City filed its application number 08137-H with the District for modification of consumptive use permit numbers 11-00017-W & 11-00018-W, on or about August 15, 1988. After review, the District staff issued its recommendation to grant the County and City's consumptive use permit applications, with limiting conditions, on or about January 24 and 25, 1989. The Association filed its Petition and Amended Petition herein on February 8, 1989, and March 6, 1989, respectively, challenging the issuance of these consumptive use permits. The Association did not allege any basis upon which standing could be established in its Petition or Amended Petition. There is no allegation in either document which describes the Association, alleges its purpose, scope or interest, the number of members in the Association and the number of its members adversely affected by the issuance of these permits, or the reason why the relief sought is appropriate for it to receive. Discovery was allowed to proceed in order to determine if there was a basis, notwithstanding these deficiencies in the Petition and Amended Petition, upon which the Association could establish its standing at final hearing. The District preserved its right to renew its objection to the Association's standing throughout this proceeding, and timely sought a determination thereon, after discovery had been concluded, but before the commencement of final hearing. This action is specifically maintained by the Association, and not by individual members thereof, or non-member property owners. However, the Association has not asserted that its substantial interests will be adversely affected by issuance of these permits. The Association is not an existing legal user of water in Collier County. The Association does not own, lease or otherwise control lands impacted by the permits sought by the County and City. The membership of the Association varies throughout the year as members pay their annual dues. The current membership of the Association totals 59, according to its Amended Second Response to First Interrogatories from Respondent Collier County filed on October 30, 1989, but it had reached a total membership of approximately 200 at times, according to the President of the Association, as dues are paid each year. The Association alleged in the motion hearing held on October 30, 1989, that 13 of its current members are adversely affected by the proposed issuance of these permits. However, in response to Interrogatories served by Hearing Officer Donnelly, the Association indicated that only 5 members were affected, and in response the District's Interrogatories the Association indicated that 6 of its members were affected. Thus, the Association's estimate of the number of its members who would be affected by issuance of these permits is uncertain, inconsistent, unreliable and lacks credibility. The nature of that adverse effect is stated to be damage to domestic wells, degradation of water quality, and a decline in water quantity, according to affidavits filed by the Association on October 13, 1989, in response to Interrogatories from Hearing Officer Donnelly. The only provision in the Association's by-laws upon which it relies in this proceeding to support its standing is found at Article V, Section 4, which states, "The corporation reserves the right to seek judicial relief in the furtherance of its aims and purpose." The only provision in its articles of incorporation which have been relied upon by the Association in this regard were cited during the motion hearing on October 30, 1989, and provide generally that the Association's purpose is to inform its members about the ongoing activities of government, particularly local government. It is clear that the Association is a taxpayer's association which has taken action in the past regarding tax assessments, and represented the views of its members in matters relating thereto. There is no other allegation or explanation of record regarding the purpose, scope, or interest of the Association, or factors which would support a finding that the relief sought herein is appropriate for the Association to receive on behalf of its members. The Association's exhibit list and amended exhibit list filed herein do not contain any exhibits which would clarify or explain its purpose, scope or interest in these matters, its total membership and number of adversely affected members, or how the relief which it seeks in this proceeding is appropriate for it to receive.
Recommendation Based upon the foregoing, it is recommended that the District issue a Final Order dismissing the Petition, as amended, which has been filed herein by the Association, based upon the Association's lack of standing. DONE AND ENTERED this 22nd of November, 1989 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 22nd of November, 1989. APPENDIX (DOAH Case Number 89-2100) Ruling on the Respondents' Proposed Findings of Fact: 1. Adopted in Finding 6 2-4. Adopted in Finding 9. 5. Adopted in Finding 10. COPIES FURNISHED: Joseph L. Grimm, Director Golden Gate Area Taxpayers Association 3093 52nd Street, S.W. Naples, FL 33999 Mark G. Lawson, Esquire Assistant County Attorney Collier County Courthouse 3301 Tamiami Trail East, Building F Naples, FL 33962-4976 Elizabeth D. Ross, Esquire South Florida Water Management District P. O. Box 24680 West Palm Beach, FL 33416-4680 David W. Rynders, Esquire City of Naples 735 Eighth Street South Naples, FL 33940 John Wodraska Executive Director P. O. Box 24680 West Palm Beach, FL 33416-4680
The Issue The issue is whether Petitioner has a disability (handicap), and, if so, was denied a reasonable accommodation for his disability by Respondents, in violation of the Florida Fair Housing Act (FFHA), as amended.
Findings Of Fact The record in this discrimination case is extremely brief and consists only of a few comments by Mr. Homer, cross- examination by Respondents' counsel, and Respondents' exhibits. Petitioner resides at Golfside Villas, a condominium complex located in Winter Park, Florida. At hearing, Petitioner asserted that he suffers from a disability, narcolepsy, but he offered no competent evidence to support this claim. Thus, he does not fall within the class of persons protected against discrimination under the FFHA. Golfside is the condominium association comprised of unit owners that is responsible for the operation of the common elements of the property. Hara is the corporate entity that administers the association, while Mr. Michaud, a Hara employee, is the community manager. In September 2016, Mr. Homer became involved in a dispute with Golfside over late fees being charged to his association account and issues concerning ongoing repairs for water damage to his unit that were caused by flooding several years earlier. Because some of his telephone calls were not answered by "Lorie" (presumably a member of management staff), on September 23, 2016, Mr. Homer sent an email to Mr. Michaud, the community manager, expressing his displeasure with how his complaints were being handled. He also pointed out that "I have a disability." The email did not identify the nature of the disability, and it did not identify or request an accommodation for his alleged disability. There is no evidence that Respondents knew or should have known that Mr. Homer had a disability or the nature of the disability. Also, there is no evidence that narcolepsy is a physical impairment "which substantially limits one or more major life activities" so as to fall within the definition of a handicap under the FFHA. See § 760.22(7)(a), Fla. Stat. Here, Petitioner only contends that at times it causes him to speak loudly or yell at other persons. As a follow-up to his email, on September 26, 2016, Mr. Homer spoke by telephone with Mr. Michaud and reminded him to look into the complaints identified in his email. If a request for an accommodation ("work with me") was ever made, it must have occurred at that time, but no proof to support this allegation was presented. Mr. Homer acknowledged that he was told by Mr. Michaud that in the future, he must communicate by email with staff and board members rather than personally confronting them in a loud and argumentative manner. On September 26, 2016, Mr. Michaud sent a follow-up email to Mr. Homer informing him that he must "work with my staff, without getting loud or upset, no matter how frustrated you may be at the time." The email also directed staff to answer Mr. Homer's questions regarding repairs for water damage to his unit, to "look into some late charges on his account," and to "work with Mr. Homer to help him get both his unit and his account in order." On November 15, 2016, Mr. Homer filed his Complaint with the FCHR alleging that on September 26, 2016, Golfside, Hara, and Mr. Michaud had violated the FFHA by "collectively" denying his reasonable accommodation request. Later, a Petition for Relief was filed, which alleges that Gulfside and Hara (but not Mr. Michaud) committed the alleged housing violation. However, the findings and conclusions in this Recommended Order apply to all Respondents.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief, with prejudice. DONE AND ENTERED this 14th day of December, 2017, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of December, 2017. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed) John Homer Unit 609 1000 South Semoran Boulevard Winter Park, Florida 32792-5503 Candace W. Padgett, Esquire Vernis & Bowling of North Florida, P.A. 4309 Salisbury Road Jacksonville, Florida 32216-6123 (eServed) Cheyanne M. Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Suite 110 Tallahassee, Florida 32399-7020 (eServed)
The Issue The issue is whether Respondent, Department of Environmental Protection ("DEP"), should grant the applicant, Pelican Resort Developments, Inc., a coastal construction control line ("CCCL") permit. The applicant seeks to construct a condominium project in Destin, Florida. Portions of the project are seaward of the CCCL for Okaloosa County.
Findings Of Fact On March 28, 1994, DAG Architects and Pelican Resort Developments, Inc., as agents for Major Development Ltd., filed an application pursuant to Section 161.053, Florida Statutes with DEP for a coastal construction control line ("CCCL") permit in order to construct a condominium project, portions of which would be seaward of the coastal construction control for Okaloosa County, Florida. The application was assigned DEP number OK-115. The condominium project to be developed pursuant to Permit OK-115 is known as Pelican Beach Resort, and is being developed by Pelican Resort Developments, Inc., The Pelican Beach Resort project includes a 19-story building with 340 condominium units, two swimming pools, 595 parking spaces, and boardwalks to the beach. On August 13, 1993, Pelican Resort Developments, Inc., entered into a contract with Major Development, Ltd., to purchase from Major Development, Ltd., the property on which the Pelican Beach Resort condominium project is to be constructed. On September 8, 1994, DEP determined to grant the March 8, 1994, CCCL application for permit OK-115 subject to 10 special permit conditions. Issuance of that "Final Order" constituted intended final agency action by DEP. Special Permit Condition 3 required the permittee to provide DEP with written evidence that a public notice regarding DEP's approval of permit application number OK-115 was published in a newspaper. Before publication, a draft of the notice was to be provided to DEP for review and approval. The permittee provided DEP with a draft public notice. DEP approved the draft and the notice was published in the Northwest Florida Daily News, which is published daily. DEP was provided with proof of publication of the notice by the permittee. The public notice advised substantially affected persons of their right to request an administrative hearing in accordance with the provisions of Section 120.57, Florida Statutes, by filing such a request with the DEP Office of General Counsel. During the processing of application number OK-115, DEP received approximately 100 letters from neighboring property owners within the Regency Towers condominium, located adjacent to the project site, objecting to the CCCL permit for the Pelican Beach Resort condominium project. Adjacent property owners were well aware of the proposed Pelican Beach Resort condominium project as the CCCL application for it was processed by DEP. On September 21, 1994, Petitioner, Regency Towers Condominium Owners Association, Inc., filed a Request for Formal Administrative Hearing with DEP requesting that DEP withdraw its issuance of permit OK-115 for the Pelican Beach Resort condominium project. The members of the Regency Towers Condominium Owners Association, Inc., are the record owners of apartments within the Regency Towers condominium. The owners of the condominium apartments own their apartments plus an undivided interest in the common property. Regency Towers Condominium Owners Association, Inc., does not own any real property within the Regency Towers condominium. When the CCCL application was filed on March 28, 1994, Major Development, Ltd., was the owner of the property where the proposed condominium project is expected to be developed. That entity continued to own the property until October 13, 1994. On October 13, 1994, Pelican Resort Developments, Inc., which served as an agent for permit application OK-115, purchased from Major Development, Ltd., 10.9 acres of the property on which the Pelican Beach Resort condominium project is to be constructed. The land purchased by Pelican Resort Developments, Inc., includes all land seaward of the CCCL which is at issue in this proceeding and permit OK-115. Pelican Resort Developments, Inc., received a warranty deed for the property from Major Development, Ltd., and obtained title insurance from First American Title Insurance Company for the property. On November 8, 1994, Pelican Resort Developments, Inc., as the new owner of the property seaward of the CCCL subject to permit OK-115, filed a Permit Transfer Agreement with DEP, and as evidence of its ownership of the property, it provided DEP with a recorded copy of its warranty deed to the property along with the Permit Transfer Agreement. On November 8, 1994, DEP approved Pelican Resort Developments, Inc.'s request to transfer permit OK-115 from Major Development, Ltd., to Pelican Resort Developments, Inc. DEP's rules authorize the transfer of CCCL permits to new property owners. Rule 16B-33.016(1), Florida Administrative Code. Such transfers are not uncommon. CCCL PERMIT APPROVAL CRITERIA The CCCL The CCCL is a jurisdictional line, it is not a line of prohibition. DEP routinely authorizes the construction of structures seaward of the CCCL, and issues approximately 1,500 to 1,600 permits per year authorizing such construction. Evidence of Local Approval The Pelican Beach Resort project subject to permit OK the City of Destin. Therefore, written evidence provided by the City of Destin was given to DEP by the applicant for permit OK-115 showing that the proposed Pelican Beach Resort condominium project does not contravene local setback requirements, or zoning, or building codes. Evidence of Ownership During the processing of application OK-115, the applicant provided DEP with sufficient evidence that Major Development, Ltd., owned the property for which permit OK-115 was requested. From the time application OK-115 was filed with DEP on March 8, 1994, until October 13, 1994, Major Development, Ltd., was the owner of the property for which permit OK-115 was requested. On October 13, 1994, Pelican Resort Developments, Inc., purchased from Major Development, Ltd., the property for which permit OK-115 was requested. Pelican Resort Developments, Inc., has provided DEP with sufficient evidence of its ownership of the property for which permit OK-115 is requested. First American Title Insurance Company has insured Pelican Resort Developments, Inc.'s interest in that property as fee simple ownership. It is this property for which permit OK-115 was requested and which will be developed pursuant to permit OK-115. Public Access Construction of the Pelican Beach Resort condominium project pursuant to permit OK-115 will not interfere with public access along the beach. The portion of the beach used for public recreation is seaward of the primary dune and is of substantial width. The structures constituting the Pelican Beach Resort condominium project are substantially landward of the primary dune. By stipulation of the parties, the Pelican Beach Resort condominium project will not interfere with public access along the beach. Sea Turtles As admitted by the parties, reasonable assurance has been provided in relation to the Pelican Resort Developments, Inc., condominium project that nesting sea turtles and hatchlings will be protected. Further, permit OK-115 contains adequate conditions to provide protection to nesting sea turtles and hatchlings and their habitat. The parties have also stipulated that the project will not have an adverse impact on sea turtles, hatchlings, or their habitat. Structural Requirements The parties have stipulated that the proposed structures within the Pelican Beach Resort project comply with all applicable structural requirements, which includes those in Chapter 16B-33, Florida Administrative Code, and Chapter 161, Florida Statutes. Compliance with Siting Criteria An accreting shoreline The shoreline adjacent to the proposed Pelican Beach Resort condominium project is stable and in an accretional mode. The shoreline is propagating seaward over time, and the beach is accreting. Between 1985 and 1990, the beach adjacent to the proposed Pelican Beach Resort condominium project accreted at a rate of ten feet per year. The shoreline for a distance of 13,000 feet to the east of East Pass is accreting. The proposed Pelican Beach Resort condominium project is approximately 10,000 feet east of East Pass. Seasonal high water line The elevation of the seasonal high water line ("SHWL") for the site of the proposed Pelican Beach Resort condominium project is approximately 3.3 feet. All major structures within the proposed Pelican Beach Resort condominium project are several hundred feet landward of the seasonal high water line. Since the shoreline is accreting, it can be anticipated that the SHWL 30-years hence will be seaward of its current location. Despite the fact that the shoreline adjacent to the site of the proposed Pelican Beach Resort condominium project is accreting, DEP has assigned an erosion rate of one foot per year for the shoreline. Using the DEP erosion rate of minus one foot per year, the SHWL in 30- years will only be 30 feet more landward than where it currently is. All the major structures within the proposed Pelican Beach Resort condominium project will be at least 230 feet landward of the SHWL in 30-years. However, since the shoreline in the area of the site is accreting, the SHWL will actually move seaward of where it is today. The proposed Pelican Beach Resort condominium structure and all structures within the project except for minor structures will be landward of the seasonal high water line within thirty years of November, 1994. Vegetation Structures constituting the proposed Pelican Beach Resort condominium project are substantially landward of the vegetation line at the site, and DEP typically approves construction projects that are closer to the vegetation line than Pelican Beach Resort. Pelican Resort Developments, Inc., as the permittee, is required by special permit condition number 4 to implement a detailed dune restoration plan. Dune restoration will include the construction of a coastal barrier dune with a minimum crest elevation of + 15 feet NGVD, the planting of vegetation -- sea oats, railroad vine, cordgrass and Golden Aster -- on the dune in staggered rows 18" apart, and the long term maintenance of the dune and vegetation. The restored dune shall be a preservation area where no construction is allowed except for pedestrian dune crossovers. The dune/vegetation restoration plan will enhance the area. Dune line Structures constituting the proposed Pelican Beach Resort condominium project are approximately 150 feet landward of the primary dune system on the site. It is typical for DEP to approve major structures, such as those proposed for the Pelican Beach Resort condominium project, that are closer to the dune system than those proposed in permit OK-115. Beach/Dune Impacts The Pelican Beach Resort condominium project has been designed to have a minimum adverse impact on the beach-dune system, because the proposed structures are landward of the active beach; substantially landward of the primary dune; and the beach is accreting. The Pelican Beach Resort condominium project is located a sufficient distance landward to preserve dune stability, and to allow natural recovery following storm-induced erosion. Moreover, the shoreline is accretional; the beach stable and the structures within the Pelican Beach Resort condominium project are sited well landward of the dynamic portion of the beach to allow for recovery. Impacts on Adjacent Properties The Pelican Beach Resort condominium project will not have any adverse impact on the beach/dune system of adjacent properties. Structures within the project are too far landward of the dynamic portion of the beach to adversely affect adjacent properties. The unique dune/vegetation restoration and enhancement plan that will be implemented as part of the project will actually enhance the dune system in the area. Line of Construction The condominium building for the Pelican Beach Resort project is 40 to 55 feet landward of the adjacent Regency Towers condominium building. To establish the line of construction, DEP typically looks at the seaward location of structures 1,000 feet on each side of the proposed structure to be permitted. The line of construction represents the seaward limit of the encroachment of structures along the beach, not the landward alignment of such structures. There are a sufficient number of structures within the immediate area of the proposed Pelican Beach Resort condominium project to establish a continuous line of construction. The line of construction for the Pelican Beach Resort site corresponds closely to the 1978 CCCL. The line of construction for the Pelican Beach Resort site is accurately depicted by Respondents Map Exhibit 32. All of the major structures within the Pelican Beach Resort project are, at a minimum, 40 to 55 feet landward of the established line of construction for the site. The Regency Towers condominium building immediately to the west of the Pelican Beach Resort site is the most identifiable line of construction to the west. Within 1,000 feet of the Pelican Beach Resort site, there are a number of structures that are located much more seaward of the 1978 CCCL and establish a line of continuous construction that is even more seaward of the 1978 CCCL. The Holiday Beach Resort project immediately to the east of the Pelican Beach Resort site does not establish the line of construction because it is landward of the CCCL, is an anomaly, and is also landward of the seaward line of construction established by other existing high rise structures in the immediate area that are similar to the proposed Pelican Beach Resort project. The current CCCL does not establish the line of construction. The Pelican Beach Resort project complies with DEP's setback requirements and its line of construction requirements. Clear Justification Considering the potential impact of the Pelican Beach Resort project on the beach/dune system, issuance of a CCCL permit for the project is clearly justified. The Pelican Beach Resort project is consistent with all the requirements of Section 161.053, Florida Statutes, and Rule Chapter 16B-33, Florida Administrative Code. AGR-OK-003 DEP and Federal Deposit Insurance Company ("FDIC") entered into an agreement regarding the property to be developed by Pelican Resort Developments, Inc., pursuant to permit OK-115. The agreement was entered into under Section 161.053, Florida Statutes. Such agreements are entered into by property owners and DEP when the CCCL is being reestablished to give the property owner reasonable assurance of how it can develop its property after the CCCL is reestablished. The benefit of such agreements to DEP is that they lessen the chance that property owners will begin poorly designed hasty construction which adversely affects the beach/dune system in order to be grandfathered from DEP permit requirements. A property owner who enters into such an agreement must still obtain a CCCL permit from DEP before constructing on the property seaward of the CCCL. Special Permit Condition 2 of permit OK-115 requires that the permittee, Pelican Resort Developments, Inc., terminate the agreement before DEP will allow the permittee to proceed with construction. The permittee, Pelican Resort Developments, Inc., is committed to terminating the agreement pursuant to Special Permit Condition 2. DEP's intent to issue permit OK-115 was issued pursuant to Section 161.053 Florida Statutes, and DEP's rules, not the FDIC/DEP agreement. In order to approve a project where an agreement is involved, DEP looks for consistency with the overall intent of the agreement. However, when the project is finally permitted, it has to comply with DEP's rules. The Pelican Beach Resort project is consistent with all the requirements of Section 161.053, Florida Statutes, and Rule Chapter 16B-33, Florida Administrative Code.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered granting Permit Number OK-115, subject to the special permit conditions set forth in DEP's September 8, 1994, order. DONE and ENTERED in Tallahassee, Florida, this 22nd day of December, 1994. DON W. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 1994. APPENDIX In accordance with provisions of Section 120.59, Florida Statutes, the following rulings are made on the proposed findings of fact submitted on behalf of the parties. Petitioner's Proposed Findings Accepted, not verbatim. Rejected, legal conclusion. 3.-6. Accepted, not verbatim. 7. Rejected, public notice was provided. 8.-12. Rejected, relevance. Rejected, weight of the evidence. Rejected, relevance. Rejected, subordinate to HO findings. 16.-23. Rejected, weight of the evidence. Respondent's Proposed Findings 1.-23. Accepted, not verbatim. 24. Rejected, legal conclusion. 25.-26. Accepted. 27. Rejected, legal conclusion, relevance. 28.-72. Accepted. 73. Rejected, redundant. 74.-76. Accepted. 77.-78. Rejected, relevance. 79.-80. Accepted. 81.-84. Rejected, redundant. COPIES FURNISHED: Virginia B. Wetherell Secretary Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Kenneth Plante General Counsel Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Dana M. Wiehle Assistant General Counsel Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 John O. Williams James Alexander Lindsey & Williams, P.A. Renaissance Square 1343 East Tennessee Street Tallahassee, Florida 32308 James E. Alexander Attorney at Law No. 323, Stanford Pointe 2401 Stanford Road Panama City, Florida 32405 Thomas G. Tomasello Attorney At Law Oertel, Hoffman, Fernandez & Cole, P.A. 2700 Blair Stone Road, Ste. C Post Office Box 6507 Tallahassee, Florida 32314-6507
The Issue The issue is whether Petitioner, Boynton Associates, Ltd., is entitled to receive additional points for Form 5 of its application, related to local government contributions, for the Florida Housing Finance Corporation's 2001 Combined Rental Cycle and, if so, whether Petitioner qualifies for an allocation of federal low-income housing tax credits.
Findings Of Fact Petitioner, Boynton Associates Ltd., a Florida Limited Partnership, is the Applicant and owner of property know as Boynton Terrace Apartments located in Boynton Beach, Palm Beach County, Florida ("City" or "City of Boynton Beach"). To encourage the development of low-income housing for families, in 1987, Congress created the federal Low-Income Housing Tax Credit Program that is allotted to each state, including Florida Tax Credits, each year. The low-income housing credits equate to a dollar-for-dollar reduction of the holder's federal tax liability. This reduction can be taken for up to ten years if the project satisfies the Internal Revenue Code's requirements each year. Each state receives an annual allotment of housing credits, primarily on a per capita basis. For the year 2001, Florida's allotment of low-income housing credits is $23,973,567, of which $20,695,689 is available for allocation. The Florida Housing Finance Corporation is the "housing credit agency" responsible for the allocation and distribution of Florida's low-income housing tax housing credits to applicants for the development and/or substantial rehabilitation of low-income housing. See Subsection 420.5099(1), Florida Statutes. Pursuant to state and federal mandates, the Florida Housing Finance Corporation has established a competitive application process for the award of low-income housing credits. Rule 67-48.004, Florida Administrative Code, as adopted on February 22, 2001, established the process by which the Florida Housing Finance Corporation evaluates, scores, and competitively ranks the applicants for the award of funds and the allocation of housing credits. Under the review and application process, staff of the Florida Housing Finance Corporation first conducts a preliminary review of the applications. Based on that review, a preliminary score is assigned to each application. After the Florida Housing Finance Corporation's preliminary review and scoring, all applicants may review the applications and challenge what they believe to be scoring errors made by the Florida Housing Finance Corporation. Any applicant alleging scoring errors must make such challenges, in writing, on a Notice of Possible Scoring Error Form (NOPSE) within ten days of the applicant's receiving the preliminary score. This form is an official form developed and provided by the Florida Housing Finance Corporation. The Florida Housing Finance Corporation then reviews each timely filed NOPSE, adjusts scores where applicable, and issues a position paper to the affected applicants informing them of the decision relative to the NOPSE. Affected applicants are then given an opportunity to submit supplemental information, documentation, or revised documents that might address challenges made in any NOPSE. Any such submission by an applicant whose scores have been challenged is called a "Cure." The Florida Housing Finance Corporation provides a Cure Form on which the challenged applicant may submit its statement of explanation addressing the issues raised in the NOPSEs. Following the submission of a Cure by an applicant whose application has been challenged, competitors are allowed to review the supplemental or corrective information which comprises the Cure. After reviewing the Cure, competitors may point out what they perceive to be errors or deficiencies on the challenged applicant's Cure. These perceived errors or deficiencies are then submitted to the Florida Housing Finance Corporation, in writing, on a form entitled, Notice of Alleged Deficiency (NOAD), that was developed and provided by the Florida Housing Finance Corporation. The Florida Housing Finance Corporation reviews the Cure submitted by the applicant whose application has been challenged and the NOADs submitted by competing applicants. Following this review, the Florida Housing Finance Corporation assigns each application a pre-appeal score. Boynton submitted an application to Florida Housing Finance Corporation for the 2001 Combined Rental Cycle ("2001 Combined Cycle") to receive annually $559,025.14 in tax credits for the rehabilitation of Boynton Terrace, a multifamily housing property. The application was submitted on February 26, 2001, the deadline for submitting applications for the 2001 Combined Cycle. Pursuant to the review and scoring procedures set forth in the 2001 Combined Cycle Application Form and Rule 67- 48.004, Florida Administrative Code, as adopted February 22, 2001, described in paragraphs 7 through 12 above, the Florida Housing Finance Corporation scored the application of Boynton. The application for the allocation of housing credits consists of several forms. However, the only form at issue in this case is Form 5, entitled "Local Government Contributions." Form 5 indicates a local government's support of the affordable housing project for which tax credits are being sought. In scoring Form 5, Florida Housing Finance Corporation awards points based on the amount of "tangible, economic benefit that results in a quantifiable cost reduction and are development specific." The maximum number of points that can be awarded on Form 5 is 20 points. To obtain the maximum number of points for Form 5, the applicant must provide evidence of a local government contribution for which the dollar amount is equal to or greater than one of the following: (1) a specified amount according to the county in which the proposed project is located, or (2) ten percent (10%) of the total development costs of the project listed in Form 4 of the application. In this case, Boynton's application indicated that the local government contribution was 10 percent of its total development costs of $5,096,789, or $509,678.90. At or near the time Boynton's application was submitted, the Florida Housing Finance Corporation determined that the application was complete and, thereafter, conducted a preliminary review of the application. Based on its preliminary review of Boynton's application, the Florida Housing Finance Corporation awarded a total of 618 points to Boynton. Of this preliminary score, the Florida Housing Finance Corporation awarded Boynton 20 points, the maximum allowed, for Form 5. The Florida Housing Finance Corporation's preliminary award of 20 points to Boynton for its Form 5 was based on local government contributions listed on the application as follows: donation of landscaping materials valued at $50,000 and donation of dumpsters during the rehabilitation of Boynton Terrace valued at $19,845; (2) waiver of tipping fees at the local landfill of $25,500 and waiver of building permit fees of $61,609; and (3) $353,196 for waiver of the requirement to construct 58 parking spaces at $6,089.60 per space. Form 5 provides that a local government contribution for a waiver of parking space requirements will not be recognized except in certain circumstances. Among the circumstances in which a waiver of parking space requirements is expressly recognized as a local government contribution are rehabilitation developments located in areas targeted for neighborhood revitalization by local governments. Once this threshold requirement is established, the local government must also verify that the existing local government code would require the additional parking, and that the parking requirements are waived specifically for the subject development. As part of the information required by Form 5, Boynton provided a letter from Mr. Michael Rumph, the Director of Planning and Zoning for the City of Boynton Beach, verifying that Boynton Terrace is a rehabilitation development located in an area targeted for revitalization by the local government. Additionally, the letter stated in part the following: In support of the [Boynton Terrace Apartments] housing development, the City of Boynton Beach has accepted and processed an application for a variance to provide relief from the City of Boynton Beach Land Development Regulations, Chapter 2, Zoning, Section 11 Supplemental Regulations, H. 16. a.(2)., requiring a minimum parking space ratio of 2 spaces per unit, to allow a reduction of 58 spaces or a 1.3 space per unit variance. The Boynton Terrace Apartments rehabilitation development is located in an area targeted for neighborhood revitalization by the local government. As such, if parking requirements are waived for the project, such waiver or variance is recognized as a local contribution. Boynton Terrace is comprised of 84 multi-family residential units. For each unit in the development, the City of Boynton Beach Land Development Regulations requires two parking spaces. Accordingly, based on the City's regulations, 168 parking spaces would be required for the Boynton Terrace development. Boynton applied for a variance to be able to construct fewer parking spaces than the 168 spaces, since much of the area currently occupied by existing parking would be encroached upon by the construction of the new clubhouse/community center, the new landscaping, and other amenities. The City Commission for the City of Boynton Beach, after a full hearing on Boynton's request, granted the variance, which obligated Boynton to provide 1.3 parking spaces for every multi-family residential unit at the property rather than two parking spaces for every such unit. As a result of the City Commission's decision, the Boynton Terrace development was required to have 110 parking spaces instead of the 168 spaces required by the City of Boynton Beach Land Development Regulations. On Form 5 of its application, Boynton indicated that the City reduced the required number parking spaces from 168 to 110. Form 5 of the application also indicated that by the City's reducing the required number of parking spaces by 58 spaces, the local government contribution with regard to parking spaces was the cost of constructing 58 parking spaces at a cost of $6,089.60 per space, or $353,196.80. An attachment to the City's "contribution letter" referred to in paragraph 21, and part of Boynton's application, indicated that as a result of the City's reducing the number of parking spaces required at Boynton Terrace, the City's contribution to the Boynton Terrace development was $353,196.80. According to the aforementioned attachment, this amount represented the cost of constructing 58 parking spaces at a cost of $6,089.60 per space. After the Florida Housing Finance Corporation issued it preliminary scores, three competing applicants submitted NOPSEs, challenging Boynton's Form 5 score of 20. According to the NOPSEs, the competing applicants believed that Boynton was not entitled to be awarded points based on a local contribution of $353,196 for a waiver or variance of the number of parking spaces required for the development. According to the NOPSEs, Boynton was only receiving a cost savings from not having to construct 11 parking spaces because 157 parking spaces already existed at Boynton Terrace. Based on these challenges, the competing applicants indicated that the local government contribution for a waiver of the City's parking space requirement should be reduced from $353,196 to $66,985.60, the cost of Boynton's constructing 11 parking spaces at $6,089.60 per space. The Florida Housing Finance Corporation reviewed and considered the NOPSEs filed by competing applicants that challenged the local government contribution of $353,196 listed on Form 5 of Boynton's application. Following its review, the Florida Housing Finance Corporation reduced Boynton's preliminary score on Form 5 from 20 points to 8.79 points. This reduction in points represented a pro rata reduction based on the Florida Housing Finance Corporation's decision that the local government contribution, with regard to parking spaces, was $66,985.60 instead of $353,196, the amount stated on Form 5 of Boynton's application. As previously noted in paragraph 10, applicants whose applications have been challenged are permitted to submit a Cure in response to NOPSES filed by competing applicants. The Florida Housing Finance Corporation's Cure Form consists, in part, of a page entitled "Brief Statement of Explanation for Revision/Addition for Application 2001- ." In addition to submitting a Cure Form, pursuant to Rule 67.48.004 (11), Florida Administrative Code, as adopted February 22, 2001, Boynton was allowed to submit additional documentation, revised forms, and other information that it deemed appropriate to address the issues raised in the NOPSEs and to any score reductions imposed by the Florida Housing Finance Corporation. In response to the NOPSEs filed by the competing applicants and the Florida Housing Finance Corporation's reduction in Boynton's Form 5 score, Boynton submitted an explanation on a Cure Form, which stated in relevant part the following: [T]he application involves substantial rehabilitation with new amenity areas, a clubhouse/community center and dumpsters. To meet the demands called for under the proposed renovation, many of the parking spaces are lost to provide for the rehabilitation and other features called for within the application. As such, because of these significant changes, the applicant would have had have [sic] new parking areas and the incurred costs in providing for the new parking. In cooperation and conjunction with the City, the applicant was able to obtain specific cost savings for the parking and has evidenced same within the application as called for. The applicant is saving the stated number of spaces and the costs associated with otherwise having to build them. According to the Cure submitted by Boynton, the application "involves substantial rehabilitation with new amenity areas, a clubhouse/community center and dumpsters." Boynton also stated that "to meet the demands called for under the proposed renovation, many of the parking spaces are lost to provide for the rehabilitation and other features called for within the application." While the Cure submitted by Boynton referred generally to "amenity areas" and a "clubhouse/community and dumpsters," Form 7 of Boynton's application noted the specific features that would be included in the Boynton Terrace rehabilitation project. Form 7 of the application listed several features that could be included in the rehabilitation project. From this list, applicants were to mark the boxes, indicating the particular features that would be included in their respective developments. Form 7 including the category, "Quality of Design," includes Sections A, B, and C. Each section lists features which the applicant may provide as part of the rehabilitation project. At the end of the "Quality of Design" category" is the following pre-printed language: IMPORTANT! CHECKING ITEMS IN SECTIONS A, B, AND C OF QUALITY DESIGN COMMITS THE APPLICANT TO PROVIDE THEM. . . . On Form 7, Section B of the "Quality of Design" category, Boynton indicated that it would provide eight of the listed features. These features included the following: an exercise room, a community center or clubhouse, a playground/tot lot, a covered picnic area, an outside recreation facility for older children, and a library. After Boynton submitted its Cure Form, competing applicants filed (NOADs) with the Florida Housing Finance Corporation pursuant to Rule 67-48.004(12), Florida Administrative Code, as adopted on February 22, 2001. One NOAD indicated that no documents were submitted by Boynton to show the number of spaces that would have to be eliminated or demolished as part of the rehabilitation or how many spaces would have to be constructed as part of the rehabilitation process. Another NOAD stated that the Cure submitted by Boynton amounted to a "de facto appeal," because the initial application did not indicate that the renovation would involve the loss of parking spaces. The NOADs relied on a 1980 as-built survey to argue that Boynton Terrace already contained a parking lot with 157 spaces. Based on its review of Boynton's Cure Form and the NOADs submitted in response thereto, the Florida Housing Finance Corporation determined that Boynton should be awarded 8.79 points for Form 5. The Florida Housing Finance Corporation believes that the 8.79 points awarded to Boynton for Form 5 are appropriate based on its determination of the local government contribution listed on and substantiated by the application and the information provided on Boynton's Cure Form. In reducing Boynton's preliminary award for Form 5 from 20 points to 8.79, the Florida Housing Finance Corporation accepted and concurred with the statements expressed in the NOPSEs. According to those statements, described in paragraph 28, Boynton should receive credit for a local contribution of $66,985, the cost of building 11 parking spaces. The Florida Housing Finance Corporation does not accept that the proposed cost of constructing each new parking space is $6,089, as noted in Boynton's application, is the actual cost. Rather, it considers the proposed cost of $6,089 to be questionable. The reason the Housing Corporation questioned the proposed cost of $6,089 to construct each new parking space was that documentation reflected that during a period of less than three months, the projected cost went from $4,017.19 per space as of December 6, 2000, to $5,821 as of February 12, 2001, and finally to $6,089 as of February 23, 2001. During the time Boynton's application was being reviewed, Mr. Christopher Bushwell, a former construction manager with the Corps of Engineers and an auditor with the Florida Housing Finance Corporation, questioned the increased cost of the construction of each parking space from $4000 to $6000. Despite Mr. Bushwell's concern about the accuracy of the projected cost of construction of each parking space, no staff member of the Florida Housing Finance Corporation called to verify the figure with the City of Boynton Beach. The Florida Housing Finance Corporation produced no evidence to support its contention that the projected or estimated cost for construction of each parking space was not accurate. Yet it persisted in its belief that Boynton "back[ed] into" the parking space estimates solely for the purpose of presenting to the Florida Housing Finance Corporation a local government contribution equal to or near $353,196, a figure that would result in Boynton's being awarded the maximum of 20 points for Form 5. The projected cost of $4,017 for construction of a parking space was included on the City's Variance Review Report dated December 6, 2000. That report analyzed Boynton's request that a variance be granted that allowed one parking space per unit, or a total of only 84 parking spaces. It is unknown who arrived at this figure or how it was derived. On January 16, 2001, the City agreed to grant Boynton a variance to reduce the number of parking space by 58, thereby reducing the number of required parking spaces from two spaces per unit to 1.3 spaces per unit. After the variance was granted on January 16, 2001, on February 12, 2001, the City of Boynton Beach submitted a letter to the Florida Housing Finance Corporation stating that the variance had been granted reducing the required number of parking spaces from two spaces per unit to 1.3 spaces per unit. The letter stated that the cost for each parking space was $5,821, which would result in a local government contribution of $337,630. On February 23, 2001, the City of Boynton Beach submitted another letter to the Florida Housing Finance Corporation identical to the February 12, 2001, letter except that the attachment to the former letter indicated that the construction cost for each parking space was $6.089.60. This projected cost would result in the local government contribution of $353,196.80 for the reduction in required parking spaces. The estimates for the cost of constructing each parking space stated in the February 12 and February 23, 2001, letters were made by Jeffrey Kammerude and approved by the City's Engineering Department. Mr. Kammerude is a licensed contractor and the construction manager of Heritage Construction Company, the company that would be responsible for the renovation of Boynton Terrace. Mr. Kammerude changed the estimated cost of each parking space from $5,821 to $6,089 because at the time of the former estimate, it was his belief that the local building code required a 20-foot minimum driveway or aisle-way. However, after meeting with City officials, Mr. Kammerude was told that the 20-foot aisle-way that he had used in making the February 12, 2001, estimate was incorrect and that with the back-to-back parking that existed at Boynton Terrace, the aisle-way had to be 27 feet wide. The increased size of the aisle-way would require a corresponding increase in the required pavement and, thus, an increase in the cost of constructing each parking space. The reason given by Mr. Kammerude for increasing the estimated cost of each parking space was uncontroverted. Moreover, the greater weight of the evidence established that the estimated cost of $6,089 per parking space was not only reasonable, but was likely lower than the actual per space construction cost because it did not include the cost of curbing. In view of the credible testimony of Mr. Kammerude, the cost estimate of $6,089.60 for constructing a parking space at Boynton Terrace is reasonable. In February 2001, at or near the time Boynton submitted its application to the Florida Housing Finance Corporation, the parking lot at Boynton Terrace was in poor condition and had many potholes and cracks in the pavement. Given the condition of the parking lot, the rehabilitation of Boynton Terrace would require repaving of at least part of the parking lot. On October 31, 2001, about eight months after Boynton submitted its application, Mr. Bushnell went to Boynton Terrace to count the parking spaces and look at the parking lot. From his cursory observation, it appeared that the parking lot had been recently resurfaced and was in "excellent shape. However, Mr. Bushnell did not conduct a comprehensive inspection of the parking lot and was unable to determine the quality of the work done on the parking lot or whether the work complied with the requirements of the applicable provisions of the City of Boynton Beach Land Development Code. The City of Boynton Beach requires a permit for the repaving and/or repair of parking lots at developments such as Boynton Terrace. However, no permit was issued for the repaving and/or repair of the parking lot at Boynton Terrace referenced in the preceding paragraph. Consequently, the City never conducted an inspection of the parking lot to determine if the parking lot repairs and/or repaving at Boynton Terrace met the applicable City Code requirements. Based on the number of parking spaces that he counted while at Boynton Terrace, Mr. Bushnell questioned the cost reduction of eliminating spaces. Moreover, because Mr. Bushnell saw concrete pads in place for dumpsters, he did not believe that parking spaces needed to be eliminated in order to place dumpsters on the property. Finally, in reaching the conclusion that there would be no reduction in parking spaces, Mr. Bushnell did not consider the number of spaces that would be eliminated as a result of the addition of any of the new amenities to the property such as the clubhouse/community center, picnic areas, and mailbox kiosks, and the landscaping required under the City Code. Boynton had a site plan prepared on or near December 2000, which showed the placement of many of the new amenities to be included as a part of the rehabilitation of the Boynton Terrace development. The site plan was used as part of Boynton's submission and presentation to the City when it was seeking a parking space variance. According to the site plan, the clubhouse/community center would consume 25 to 30 parking spaces, the landscaping of the development would consume about 15 parking spaces, and the picnic area would consume about two to four parking spaces. The Florida Housing Finance Corporation did not consider that the addition of the new amenities would reduce the number of parking spaces at the property and result in the need to construct new parking spaces unless the City of Boynton Beach granted a variance to Boynton. Boynton did not include the December 2000 site plan as part of its application or Cure submitted to the Florida Housing Corporation. Moreover, Boynton did not provide information in its application or Cure regarding how many spaces would be eliminated as a result of construction of a clubhouse community center. At hearing, Boynton presented credible evidence that the clubhouse/community center would be constructed over existing parking spaces and that without a variance from the City of Boynton Beach, it would have to construct new spaces to replace those spaces lost to construction as well as to other features related to the rehabilitation of the development. Boynton also presented credible evidence that additional parking spaces at Boynton Terrace would be eliminated due to the City's landscaping requirements, the construction of a picnic area, a tot lot, and mail box kiosks. The City's Code requires 20 feet of landscaping for each parking space. However, this information was not included in the Cure submitted by Boynton to the Florida Housing Finance Corporation. The variance granted by the City of Boynton Beach amounted to a waiver of the parking space requirements applicable to the Boynton Terrace rehabilitation project which provided a tangible economic benefit that resulted in a quantifiable cost reduction that is specific to the development.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Housing Finance Corporation award to Petitioner, Boynton Associates, Ltd., the maximum number of 20 points for Form 5 of the 2001 Combined Cycle, and enter a Final Order awarding Boynton Associates, Ltd., a total of 622 points for it Combined Cycle Application. DONE AND ENTERED this 17th day of April, 2002, in Tallahassee, Leon County, Florida, CAROLYN S. HOLIFIELD 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 17th day of April, 2002. COPIES FURNISHED: Mark Kaplan, Executive Director Florida Housing Finance Corporation 227 North Bronough Street, Suite 5000 Tallahassee, Florida 32301-1329 Elizabeth G. Arthur, Esquire Florida Housing Finance Corporation 227 North Bronough Street, Suite 5000 Tallahassee, Florida 32301-1329 Jon C. Moyle, Jr., Esquire Moyle, Flanigan, Katz, Kollins, Raymond & Sheehan, P.A. 118 North Gadsden Street Tallahassee, Florida 32301
Findings Of Fact Based on the stipulations of the parties, on the exhibits received in evidence, and on the testimony of the witnesses at the hearing, I make the following findings of fact. Facts stipulated to by the parties Winston Towers 600 condominium was created by Winston Capital, Inc., which still owns units for sale in the condominium. Control of the association has been relinquished by the creator/developer and turned over by it to the unit owners including joint intervenors. In May of 1983, six Michigan limited partnerships each purchased a number of units in the condominium from Winston Capital, Inc. In March of 1984, four Texas limited partnerships each purchased a number of units in the condominium from Winston Capital, Inc. The joint intervenors consist of the six Michigan limited partnerships and the four Texas limited partnerships. The number of units so purchased gives the joint intervenors, as a block, a controlling interest in the condominium association. The association is controlled by the joint intervenors, who elected two of the three directors of the association. The association hired Hall Management Company, Kent Security Services, Inc., and an unnamed cleaning company. Records of the Secretary of State reveal that among other officers of Hall Management Company are Craig Hall, President and Director, and Christine Erdody, Vice-President. The records of the Secretary of State reveal no entity known as the Hall Real Estate Group. The public records of Dade County, Florida, reveal no fictitious name affidavit for any entity trading as the Hall Real Estate Group. The records of the Division of Florida Land Sales, Condominiums and Mobile Homes reflect that Winston Towers 600 is a residential condominium, located in Dade County, Florida. The joint intervenors are not now offering and have not ever offered condominium units for sale. The joint intervenors are not now offering and have not ever offered condominium units for lease for periods in excess of five years. Winston Towers 600 Condominium Association, Inc., is the non-profit condominium association established to maintain and operate the condominium. In July, 1984, a meeting of the condominium association was held upon instructions of the developer, Winston Capital, Inc. Winston Capital, Inc., scheduled and held the condominium association meeting in July 1984, under the good faith impression and belief that the threshold requirements in Section 718.301 mandating turnover of control of the association board of directors had been met. Joint intervenors, collectively, own more than 50 per cent of the units in the condominium. Joint intervenors, as developers, did not turn over control of the condominium association in July 1984. The declaration of condominium for the condominium and the Florida Statutes grant certain rights and privileges to the developers. The joint intervenors have a substantial economic investment in the condominium. The joint intervenors desire to have the condominium operated and maintained by competent professional management so as to protect and enhance the condominium project. The annual fee being paid to Hall Management Company for management of the condominium is the same fee as had been previously paid by the developer, Winston Capital, Inc., to the prior manager, Keyes Management Company. The names of the board of directors elected to the board of administrators of the association on July 16, 1985, were Ms. Christine Erdody, Mr. James Sherry, and Mr. Joseph Pereira. Ms. Christine Erdody and Mr. James Sherry are general partners in each of the ten limited partnerships. Mr. Craig Hall is President and Ms. Christine Erdody is Vice- President. Other findings based on evidence Adduced at hearing At the turnover meeting in July of 1984, Ms. Erdody cast votes on behalf of each of the ten limited partnerships, voting once for each unit owned by all ten of the limited partnerships. There has never been a meeting of the unit owners in which the limited partnerships turned over control of the association to unit owners other than the ten limited partnerships. The ten limited partnerships have no business ventures or income producing activities other than attempting to offset expenses of operations by leasing the units owned by the limited partnerships and attempting to increase their equity in the condominium units. The units acquired by the joint intervenors were not acquired for their own occupancy. The limited partnerships, while in control of the association, employed Hall Management Company, pursuant to contract, to manage the condominium and to lease the units owned by the limited partnerships. The rental office used by the management company consists of a unit owned by one of the limited partnerships. The contract specifically requires that Hall Management Company attempt to lease those condominiums units owned by the limited partnerships. The limited partnerships have no income producing mechanism other than the disposition of condominium units owned by the listed partnerships pursuant to the contract with the Hall Management Company. A regular, normal, and common activity of each of the ten limited partnerships is to offer to lease and to enter into leases of the condominium units owned by the limited partnerships. They typically engage in this activity through their agent, the Hall Management Company. None of the ten limited partnerships have ever offered any of their units for sale. None of the ten limited partnerships have ever offered any of their condominium units for leases in excess of five years. Ultimately, all of the ten limited partnerships intend to sell all of their condominium units. There is no relationship or affiliation between the creator/developer, Winston Capital, Inc., and any of the joint intervenors. Each of the joint intervenors is a separate limited partnership. However, due to the facts that each of the joint intervenors have a common purpose, each has at least several general partners in common, each has entered into a management contract with a closely related management company, and each has acted in concert with the others in prior matters concerning the condominium facility and the association, for all practical purposes relevant to this case, the joint intervenors may be regarded as a single entity. This is true even though there is no agreement or contract between the joint intervenors requiring them to act collectively in any matter involving or affecting their vote in condominium association matters at Winston Towers 600 Condominium. In all the actions of the joint intervenors in voting their interests at association meetings, they have never thought or acted on the understanding that the joint intervenors were developers of the condominium. The unit owners other than the joint intervenors have selected one-third of the Board of Directors of the Association. The right to vote for a majority of the board of directors of the condominium association is a significant and valuable right which the joint intervenors believed they would be entitled to upon purchasing a majority of the units in the condominium. A substantial number of the purchasers of Florida condominium units are non-residents of Florida. A substantial number of purchasers of condominium units intend to rent their condominiums under leases with a duration of two years or less.
Recommendation On the basis of all of the foregoing, it is recommended that the Division of Florida Land Sales, Condominiums and Mobile Homes issue a declaratory statement to the following effect: That the joint intervenors, individually and collectively, constitute concurrent and successor developers, and that as such concurrent and successor developers who collectively own more than fifty per cent but less than eighty-five per cent of the units, they are entitled to appoint two-thirds of the members of the board of administration of the condominium association. The statement should also note that the joint intervenors should comply with Section 718.3025(1)(e), Florida Statutes, by disclosing any financial or ownership interest which the joint intervenors have, if any, in Hall Management Company That the issue of whether the joint intervenors may have violated the provisions of the declaration of condominium is not a proper subject for a declaratory statement. DONE AND ORDERED this 9th day of April, 1986, at Tallahassee, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 Filed with the Clerk of the Division of Administrative Hearings this 9th day of April, 1986. COPIES FURNISHED: Mr. Arnold Belkin Apartment 912 210 - 174 Street Miami, Florida 33160 Thomas A. Bell, Esquire Deputy General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Karl M. Scheuerman, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 323301 Joseph D. Bolton, Esquire Stephen Gillman, Esquire SHUTTS & BOWEN 1500 Edward Ball Building Miami Center 100 Chopin Plaza Miami, Florida 33131 Linda McMullen, Esquire McFARLAIN, BOBO, STERNSTEIN, WILEY & CASSEDY P. O. Box 2174 Tallahassee, Florida 32301 James Kearney, Jr., Acting Director Division of Florida Land Sales, Condominiums and Mobile Homes Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 James Kearney, Jr., Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 APPENDIX The Following are my specific rulings on each of the proposed findings of fact submitted by all of the parties. Rulings on findings proposed by the Division Paragraphs 1 through 23 of the Division's proposed findings are accepted and incorporated into the findings in this Recommended order. Paragraph 24 is rejected as irrelevant and as not supported by persuasive competent substantial evidence. Paragraph 25 is rejected as irrelevant in part and is redundant in part. The substance of paragraph 26 is accepted with the deletion of certain redundant information. The substance of paragraphs 27, 28, 29, 30, 31, 32, and 33 is accepted with some modifications in the interest of clarity and accuracy and with the deletion of certain redundant information. Rulings on findings proposed by the Joint Intervenors Paragraphs 1 through 12 of the Joint Intervenors' proposed findings are accepted and incorporated into the findings in this Recommended Order. Paragraph 13 is rejected as irrelevant, subordinate, and not supported by competent substantial evidence. Paragraphs 14 and 15 are accepted. Paragraphs 16 and 17 are accepted with additional findings for the purpose of clarity and accuracy. The substance of paragraphs 18, 19, 23, and 26 is accepted. Paragraphs 20, 21, 22, 24, 25, and 27 are accepted. Rulings on findings proposed by Petitioner Paragraphs 1, 2, 3, and 4 of Petitioner's proposed findings are accepted in substance. Paragraph 5 is rejected as irrelevant. Paragraphs 6, 7, 8, 9, and 10 are accepted in substance with the deletion of the reference to the Hall Group of real estate limited partnerships. Paragraph 11 is rejected in part because it is subordinate, in part because not supported by competent substantial evidence and in part because it is a conclusion of law. Paragraphs 12, 13, 14, and 15 are accepted in substance. Paragraph 16 is rejected because it is not supported by competent substantial evidence. Paragraph 17 is rejected because it is irrelevant and subordinate. Paragraphs 18, 19, and 20 are accepted in substance. Paragraphs 21 and 22 are rejected because they constitute argument or conclusions of law and are not supported by competent substantial evidence. Paragraph 23 is rejected because it is irrelevant to the issues to be decided in this case and because portions of it are not supported by competent substantial evidence. Paragraph 24 is accepted. Paragraph 25 is rejected because it is irrelevant to the issues to be decided in this case, because portions of it are not supported by competent substantial evidence, and because portions of it constitute argument or conclusions of law. Paragraph 26 is rejected because it is not supported by competent substantial evidence. Paragraph 27 is rejected because it constitutes argument. Paragraph 28 is rejected because it is irrelevant and redundant. Paragraphs 29 and 30 are rejected because they constitute argument or conclusions of law. Paragraphs 31 and 32 are rejected because they are not supported by competent substantial evidence. Paragraph 33 is rejected because it constitutes argument or conclusions of law. Paragraphs 34 and 35 are rejected because they are irrelevant and because they constitute argument.
Findings Of Fact W. B. Johnson Properties, Inc., Petitioner, is the owner of the 428- room Holiday Inn Surfside located on Clearwater Beach. This hotel was constructed in 1981 on land zoned CTF-28 for commercial tourist facilities. The tract of land on which the hotel is situated is approximately ten acres and the maximum density of 42 rooms per acre is utilized. This hotel is currently in conformity with all building and zoning regulations. Holiday Inn Surfside has decking around its swimming pool which is capable of accommodating only 120 to 150 deck chairs for the guests of the hotel. Additional chair space, if needed, must be obtained by using the undecked area of the beach in front of the hotel. The occupancy rate for this hotel from the beginning of 1983 to date has been 80 percent. Petitioner owns the entire beach fronting its property, a distance of some 340 feet. Prior to the passage of Clearwater Ordinance No. 3075-83, the western setback line for this property was 50 feet from-mean highwater (MHW). Ordinance 3075-83 made the Coastal Construction Control Line (CCCL), as established by Section 161.063, Florida Statutes, as the western setback line for property located on Clearwater Beach. This is now the Coastal Control setback line. The Coastal Construction setback line as it crosses Petitioner's property is 338 feet from MHW of the Gulf of Mexico. Prior to the passage of Ordinance No. 3075-83, Petitioner could have constructed decking up to the then setback line, 50 feet from MHW. Petitioner is one of the few property owners on Clearwater Beach that has undisputed ownership of the beach fronting its property seaward of the CCCL. This area of Clearwater Beach in the vicinity of Holiday Inn Surfside is the widest part of the beach between the CCCL and MHW. Exhibit 7, which was submitted as a late-filed exhibit, clearly shows the beach north of Petitioner's property is not as wide as is the beach fronting Petitioner's property, and much of the property on the beach south of Petitioner's property is owned by the City. Solely by having ownership of more beachfront property seaward of the CCCL, Petitioner is more adversely affected by Ordinance No. 3075-83 than are other property owners. Petitioner has signs restricting the use of the decking around the pool to hotel guests. Petitioner also has a patio bar in the vicinity of the pool which is accessible from the beach and from the hotel. Drinks are served to the public at this patio bar. By extending the deck 28 feet seaward of the OCCL, Petitioner would be able to provide decking for an additional 150 to 170 chairs for the use of hotel guests. With an 80 percent occupancy rate there is insufficient deck space to accommodate all of the hotel guests who desire to use these facilities. Currently the excess place their deck chairs in the sand seaward of the CCCL. Those who testified in opposition to the variance requested did so on the grounds that the increased deck facilities would bring more people to the patio bar, thereby increasing the traffic and parking problems on the beach, that the hotel did not adequately restrict the use of the existing deck to guests of the hotel, and that if this application is granted it will open the doors to others who would like to construct a deck seaward of the CCCL. None of these grounds is deemed particularly meritorious. Many factors could increase the patronage of the patio bar and more adequate decking would not be a significant one, particularly in view of Petitioner's contention that the deck was reserved for guests of the hotel, albeit not strictly enforced during periods of low occupancy.
