The Issue Whether the proposed site falls within an "improved commercial or residential area?"
Findings Of Fact Salter seeks a permit to erect a sign on the north side of Interstate Highway 10 about .15 mile west of State Road 291 in Escambia County. The proposed site is outside the city limits of Pensacola in an unzoned area of Escambia County. In the vicinity of the proposed site, commercial and/or industrial facilities are so situated that, if the facility owned and operated by Energy Services of Pensacola, a gas utility owned by a local governmental entity, is also deemed commercial or industrial, a permit should be issued. The parties stipulated to the foregoing facts.
Findings Of Fact Kasper Corporation, a speciality subcontractor, was formed during April 1987, and is engaged in the business of performing concrete gutter work, curb elements, traffic separators, barrier walls, sidewalks, formation of ditch and slope pavement, pipe culverts, and storm sewers. Most of its business activities are conducted in the area of Pasco, Hillsborough, Pinellas, Hernando, Citrus, Manatee and Sarasota counties. Ms. Deneweth purchased 100% of the stock of Kasper Corporation in September, 1988 for the sum of $10.00. Ms. Deneweth contends that she has deposited approximately $9,000.00 into the corporation between September and December, 1988 and has withdrawn approximately $6,000.00 as a withdrawal of capital. No documentation was provided to substantiate either the deposit or the withdrawal of funds by Ms. Deneweth. Prior to Ms. Deneweth's purchase of Kasper Corporation, she had no training or experience in the principal business activities in which Petitioner is engaged, having graduated from high school during June 1981, and having been employed as receptionist/secretary and office manager for a regional medical center, a physician and an engineering firm from 1981 thru 1987. Kasper Corporation's field supervisor is Steven D. Kasper, a nonminority, whose training and experience includes substantial concrete construction work. Steven Kasper is responsible for preparation of job estimates and the submission of bids to prime contractors. Kasper works in cooperation with Michael R. Knox, a civil engineer who is also a nonminority. Knox is employed by Petitioner as a consultant. Ms. Deneweth, the only minority involved in the internal operations of Kasper Corporation, has limited experience in the principal operations of Kasper Corporation. Ms. Deneweth has no training or working knowledge of the requirements and procedures for bid preparations, of the type of equipment or materials required to perform the principal activities of Kasper Corporation. Ms. Deneweth lacked familiarity with all significant details of Petitioner's internal operations, field operations, financial operations and the bidding procedures. All significant bidding, principal construction activities and financial requirements are carried out by the two nonminorities, Messrs. Kasper and Knox.
Recommendation Based on the foregoing findings of fact and conclusions of law it is recommended that Respondent enter a Final Order denying Petitioner's application for recertification as a disadvantaged business enterprise pursuant to Chapter 14-78, Florida Administrative Code. RECOMMENDED this 24th day of April, 1990, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 24th day of April, 1990. COPIES FURNISHED: Vernon L. Whittier, Jr., Esquire Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Marianne Deneweth, President KASPER CORPORATION 5006 Trouble Creek Road Suite 215 New Port Richey, Florida 34652 Robert Scanlan, III, Esquire General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32399-0458 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458
Findings Of Fact Petitioner proposes to erect outdoor advertising signs along the south side of I-10, 0.2 miles and 0.4 miles, respectively, east of U.S. 41. The Petitioner has acquired a lease on the sites proposed for these signs. The sites in issue are in Columbia County and Columbia County is unzoned. These sites are outside any incorporated town or city and the area is rural in nature. A radio transmitting or relay tower is located between the proposed sites and a small concrete block building is located near the base of the tower. These are the only structures in the area. Each of the two sites for which a permit is sought is within 800 feet of this small building. The building is unoccupied and is reported to contain materials used in the maintenance of the tower. The tower is owned by B & B Communications located in Lake City, Florida. Opinion testimony was offered by Petitioner that the highest and best use of small tracts of this land would be for outdoor advertising signs. Exhibit 10, Building and Zoning Code for the City of Jacksonville, Florida, which is coterminous with Duval County, establishes a category of Open Rural Districts (OR) in which permissible uses by exception include radio or television transmitters, antenna and line-of-site relay devices. The zoning code for Tallahassee shows one of the principal uses for land zoned A-1 Agricultural District is for "(8) Broadcasting towers, radio and television transmission stations and studios." There are six or seven signs located in the general area along the I-10 between U.S. 41 and U.S. 441, most on the north side of I-10. Those permitted signs were "grandfathered in" and no permit has been issued for any sign erected in this area since 1979.
The Issue The issues are (1) whether the City of Lake Worth (City) followed required statutory and rule procedures in adopting the height restrictions on pages 22 and 23 of the Future Land Use Element (FLUE) of the Evaluation and Appraisal Report (EAR) amendments, and (2) whether the adoption of the EAR-based amendments by the City more than 120 days after receiving the Department of Community Affairs' (Department's) Objections, Recommendations, and Comments (ORC) report renders them not in compliance.
Findings Of Fact The Parties Sunset is a Florida limited liability company whose principal address is 5601 Corporate Way, Suite 111, West Palm Beach, Florida. It owns property located at 826 Sunset Drive South within the City. See Sunset Exhibit 3. The property is currently classified on the FLUM as County Medium Residential 5.1 There is no factual dispute that Sunset is an affected person and has standing to participate in this proceeding. Ms. Hayes-Tomanek owns property within the City. She submitted comments regarding the height restrictions during the public hearing on October 20, 2009, adopting the EAR amendments. See City Exhibit 6, Minutes, p. 7. The City is a local government that administers the City's Plan. The City adopted the EAR-based amendments which are being contested here. The Department is the state land planning agency charged with the responsibility of reviewing plan amendments of local governments, such as the City. The Amendments On October 1, 2008, the City's EAR-based amendments were passed on first reading and transmitted to the Department. See Joint Exhibit 2. These amendments did not include any height-based restrictions on the three categories of residential property in the Plan: Single-Family, Medium-Density, and High- Density. These three categories make up around 75 percent of the City's total land area. According to Sunset's expert, height restrictions for those categories (which are less stringent than those later adopted and being challenged here) were then in the City's zoning ordinances. On January 14, 2009, the Department issued its ORC report regarding the EAR-based amendments. See Joint Exhibit 3. Objection 4 in the report stated in part that the "City has not adequately established its mixed use districts . . . because the mixed used categories do not establish the types of non- residential uses or the appropriate percentage distribution among the mix of uses, or other objective measurement. In addition, the General Commercial, Industrial, Public, Public Recreation and Open Space Future Land Use categories do not include the densities and intensities of use for these categories." Id. Sunset's expert points out that the ORC report, and in particular Objection 4, did not recommend any changes to the residential categories of property. Accompanying the ORC report was a document styled "Transmittal Procedures," which stated, among other things, that "[u]pon receipt of this letter, the City of Lake Worth has 120 days in which to adopt, adopt with changes, or determine that the City will not adopt the proposed EAR-based amendments." Id. The 120-day period expired on May 14, 2009. See Sunset Exhibit 15. The City initially scheduled an adoption hearing on May 5, 2009. See Sunset Exhibit 8. For reasons not of record, the EAR amendments were not considered that day. On June 25, 2009, then City Commissioner Jennings wrote Bob Dennis, Department Regional Planning Administrator, and asked whether the City could incorporate certain substantive changes into its EAR amendments between the first (transmittal) and second (adoption) readings. Among others, she asked if the following change to the EAR amendments could be made: Establish or change the maximum building heights in various land use classifications. During the master plan process, the city received public input regarding maximum building heights . . . . The height changes vary from a 10' reduction to a 25' reduction in different land use categories. The letter included an outline of the proposed changes in seven land use categories, including the three residential categories. See City Exhibit 2. In her deposition, Commissioner Jennings stated that around the time of the transmittal hearing in January 2008 she had requested that new height restrictions be incorporated into the EAR amendments, but based on conversations with City staff, she was under the impression that these changes could not be made at that time. See City Exhibit 9. By letter dated July 29, 2009, the Department, through its Chief of Office of Comprehensive Planning, responded to Commissioner Jennings' inquiry as follows: The proposed maximum building height changes identified in your letter are for the Single Family Residential, Medium Density Multi-family Residential, High Density Multi-family Residential, Mixed Use, Downtown Mixed Use, Transit Oriented Development, and the General Commercial land use categories. Contrary to the [FLUM] revisions discussed above, the City did transmit proposed amendments to Future Land [Use] Policy 1.1.3, including new and revised Sub-policies 1.1.3.1 through 1.1.3.11 concerning these land use classifications. Height limitations were proposed for the Mixed Use and Downtown Mixed Use land use categories. In addition, the Department's ORC Report includes an objection that the Mixed Use, Downtown Mixed Use, Transit Oriented Development, General Commercial, Industrial, Public, Recreation and Open Space land use classifications do not establish adequate densities and intensities of use for these categories. In preparing this letter, the Department notes that an intensity standard of 0.1 F.A.R. (floor area ratio) was proposed for the Recreation and Open Space category. To address the Department's objection, the Department recommended the City include densities and intensities for the listed land use categories and specify the percentage distribution among the mix of uses in the mixed use categories. Appropriate intensity standards for non-residential uses include a height limit and maximum square footage or a floor area ratio. Because the City transmitted amendments that included revisions to the residential and several non- residential land use categories and because the Department's ORC Report identified the need to include density and intensity standards for the mixed use categories and several non-residential land use categories, it would be acceptable for the City to revise the proposed height limitations previously submitted or to include height limitations for the other land use categories. As noted above, height alone is not a density or intensity standard. (Emphasis added) City Exhibit 3. This determination by the Department was just as reasonable, or even more so, than the contrary view expressed by Sunset's expert. After receiving this advice, the City conducted a number of meetings regarding the adoption of the EAR-based amendments, including a change in the height restrictions. On September 2, 2009, a Board meeting was conducted regarding the proposed new height restrictions. The Board voted unanimously to adopt the changes. The Minutes of that meeting reflect that a "special workshop" would be conducted by the Commission at 6:00 p.m., September 14, 2009, "to address height and intensity" changes to the EAR amendments. See City Exhibit 4, Minutes, p. On October 11, 2009, a "special meeting" of the Commission was conducted. Finally, on October 20, 2009, the City conducted the adoption hearing. There is no dispute that Petitioners appeared and presented comments in opposition to the proposed changes. By a 3-2 vote, Ordinance No. 2008-25 was adopted with the new height restrictions described on Table 1, pages 22 and 23 of the FLUE.2 See Joint Exhibit 4; Sunset Exhibit 6. This was 279 days after the City received the ORC report. The adopted amendments were then submitted to the Department for its review. Notices for each hearing (but not the special workshop) were published in a local newspaper. See City Exhibits 4, 5, and 6. Each advertisement indicated that one of the purposes of the meetings was to consider the "City's EAR- Based Amendments." No further detail regarding the EAR amendments was given. Sunset's expert acknowledged that local governments do not always provide more specificity than this in their plan amendment notices but stated he considers it to be a good planning practice to provide more information. On December 30, 2009, the Department issued its Notice of Intent to find the amendments in compliance. See City Exhibit 5. The following day, a copy of the Notice of Intent was published in The Lake Worth Herald. On January 19, 2010, Sunset timely filed a petition contending that certain procedural errors were committed by the City during the adoption process. This petition was twice amended prior to hearing. A petition was filed by Ms. Hayes-Tomanek on April 5, 2010. Petitioners' Objections Petitioners first point out that the City did not follow the requirement in section 163.3184(7)(a) that it "shall" adopt the amendments no more than 120 days after receipt of the ORC report. They contend that because the City failed to do so, this requires a determination that the EAR-based amendments are not in compliance. At hearing, Sunset also relied upon (for the first time) Florida Administrative Code Rule 9J-11.009(8)(e), which provides that "[p]ursuant to Section 163.3191(10), no amendment may be adopted if the local government has failed to timely adopt and transmit the evaluation and appraisal report- based amendments." The parties agree that the City did not adopt the EAR- based amendments until 279 days after receipt of the ORC report. According to the Department's Regional Planning Administrator, Bob Dennis, the Department took no action after the 120 days had run because the statute "gives no guidance as to what happens when a local government does take more than the prescribed time in the statute." See City Exhibit 8. He also indicated that the Department has no policy relative to this situation. Sunset's expert agreed that there is no penalty in the statute in the event a local government takes more than the prescribed time. Richard Post, a Department Planning Analyst, noted that local governments sometimes take longer than the statutory time periods to "send in adopted amendments, and the Department has taken no particular posture regarding their tardiness." See City Exhibit 7. He further noted that if a filing is late, as it was here, it does not affect the Department's review. As a safeguard, if an adopted amendment is transmitted to the Department after the statutory time period, it is reviewed by a planner to determine whether the information is still relevant and appropriate or has become "stale" and out-of-date. In this case, the Department reviewed the adopted amendments and, notwithstanding the passage of 279 days since the ORC report was received by the City, the amendments were found to be in compliance. For the reasons expressed in Endnote 3, infra, rule 9J-11.009(8)(e) does not prohibit the City from adopting the challenged amendments.3 While Petitioners stated that they have suffered prejudice because the new height restrictions will adversely impact the use of their property, there was no evidence that the delay in adopting the amendments affected their ability to participate in the planning process. Petitioners also contend that the City failed to follow statutory and rule procedures when it added the height restrictions between the first and second readings of the amendments. By the City doing so, Petitioners argue that rule 9J-5.004 was violated, which requires that the City "adopt procedures to provide for and encourage public participation in the planning process, including consideration of amendments to the . . . evaluation and appraisal reports[,]" and procedures to assure that the public is noticed regarding such changes and has the opportunity to submit written comments. Petitioners further argue that subsections 163.3191(4) and (10) were violated by this action. The first subsection requires the local planning agency (the Planning & Zoning Board) to prepare the EAR report (as opposed to the amendments) in conformity with "its public participation procedures adopted as required by s. 163.3181[,]" while the second subsection requires that the City adopt the EAR-based amendments in conformity with sections 163.3184, 163.3187, and 163.3189. They also argue that the notice of the adoption hearing violated section 163.3184(15) because it failed to describe the changes being made to the original EAR-based amendments. Finally, they contend the new height restrictions were not responsive to the ORC report.4 Petitioners do not contend that the City has failed to adopt adequate public participation procedures, as required by rule 9J-5.004. Rather, they contend that the participation procedures were violated, and that members of the public and other reviewing agencies, such as the Treasure Coast Regional Planning Council, were not given an opportunity to provide input on the new height restrictions. The record shows that, notwithstanding the content of the notice in the newspaper, both Petitioners were aware of new height restrictions being considered by the City prior to their adoption, and both were given the opportunity to participate at the adoption hearing. There is no dispute that Sunset submitted written or oral comments to the Commission prior to the adoption of the new height restrictions. Likewise, Ms. Hayes-Tomanek has closely followed the planning process for years (mainly because she wants the density/intensity standards on her property increased) and became aware of the new height restrictions well before they were adopted. The record further shows that the new height limitations were discussed by City officials before June 2009, when Commissioner Jennings authored her letter to the Department, and that written input on that issue was received from 239 residents. See Sunset Exhibit 9; City Exhibit 9. It is fair to construe these comments from numerous citizens as "public input." Even if there was an error in procedure, there is no evidence that either Petitioner was substantially prejudiced in the planning process. Finally, Petitioners' assertion that the new height restrictions are not responsive to the ORC report has been considered and rejected. See Finding of Fact 9, supra; City Exhibits 7 and 8.5
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order determining that the EAR-based amendments adopted by Ordinance No. 2008-25 are in compliance. DONE AND ENTERED this 24th day of March, 2011, in Tallahassee, Leon County, Florida. S 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 24th day of March, 2011.
Findings Of Fact The Respondent, Jack M. Wainwright was issued permit numbers AF091-10 and AF092-10 on August 20, 1981. Permit numbers AF241-10 and AF242-10 were issued on September 15, 1981. These permits authorized the erection of two stacked back-to-back signs at a location approximately 1.6 miles west of SR 267 in Gadsden County, Florida. This location is in an unzoned area and the permits were granted because of their proximity to a nearby commercial activity known as Imperial Nurseries. The area in question is rural in nature and generally suitable for agricultural activities. Therefore, prior to the Department's issuance of the subject permits, one of its inspectors whose duty is to observe a proposed sign site and determine if it is as represented in the application and if it meets the requirements of the statutes and rules, field inspected the proposed site of these signs. Based on this inspection he recommended the issuance of the permits upon his determination that this area was unzoned commercial, that the sign site was within 800 feet of a commercial activity known as Imperial Nurseries, and that this commercial activity was within 660 feet of the right of way of I-10, and visible from the main-traveled way of I-10. There is sufficient credible evidence in the record of this proceeding to support a finding of fact that the subject area was as the field inspector found it to be, and from this evidence it is so found. The field inspector's recommendation to approve the site as a permittable location was joined in by his supervisor after the supervisor had conferred with the Department's central office relative to whether Imperial Nurseries qualified as a commercial activity. The site where the Respondent proposed to erect his signs was within 800 feet of the various locations on the Imperial Nurseries property where its loading, unloading, or other activities of its employees took place. This is the testimony of the field inspector, his supervisor and the operator of Imperial Nurseries. The business being conducted by Imperial Nurseries in 1981 was the growing of nursery stock for wholesale distribution in Northern markets. This nursery stock was grown in pots on top of the ground, and shipped by truck. There were 130 employees engaged in the various activities conducted over the entire nursery property. The business was very labor intensive, and trucks bringing in supplies and taking out loads numbered approximately 400 per year. There was much moving around. Each container had to be handled, cuttings taken and placed in the pots, and these cuttings might be repotted into larger containers, and each had to be placed at the growing locations. When mature, these plants were all loaded onto trucks and shipped out. The Department's approval of this location as an unzoned commercial area was based upon the labor intensity of the activities being conducted at Imperial Nurseries. The assertion of the Respondent on his sign permit applications that the proposed location was within 800 feet of a business was not false or misleading. The Department's inspectors and his superiors concurred with this characterization of the area. Neither has the Respondent violated any of the provisions of Chapter 479, Florida Statutes. All of the facts were set forth on his permit applications, and these facts were verified by the Department after the area was inspected to determine their accuracy. The policy of the Department leaves the determination of what is and what is not an unzoned commercial area to the field inspector, with the approval of his supervisors. In this case, the determination was made that the activities of Imperial Nurseries were commercial in nature, and the permits were granted on the basis of this determination, not on the representation of the Respondent. In 1984, after a change had occurred in the Department's interpretation of the statutes and rules relative to what is and what is not a commercial activity, and after the Department had adopted a more strict interpretation of the applicable statutes and rules, it initiated these proceedings to revoke the Respondent's permits as having been issued in error. The activities of Imperial Nurseries have not changed substantially since 1981. However, the Department's interpretation of the applicable statutes and rules has changed. The Department has adopted a stricter, more conservative interpretation of these statutes since 1981, and it seeks to re- evaluate the Respondent's permits based on its newly-adopted interpretation, and to apply this strict construction to the Respondent's permits ex post facto. In August of 1984, the Respondents entered into a new three-year lease for the site where his signs stand under which he is obligated to pay the lessor $1,000 each year. At this time the Respondent also renovated the subject signs at the cost of $12,000.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department's violation notices seeking removal of the Respondent's signs on the north side of I-10, approximately 1.6 miles west of S.R. 267 in Gadsden County, Florida be dismissed; and that permit numbers AF091- 10, AF241-10, AF092-10, and AF242-10 remain in effect as permits for nonconforming signs. THIS RECOMMENDED ORDER entered this 4th day of June, 1985 in Tallahassee, Leon County, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 4th day of June, 1985. COPIES FURNISHED: Maxine F. Ferguson, Esquire Haydon Burns Building, M.S. 58 Tallahassee, Florida 32301-8064 W. Kirk Brown, Esquire P.O. Box 4075 Tallahassee, Florida 32315-4075 Hon. Paul A. Pappas Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
Findings Of Fact Peck Plaza Condominium was developed by Edwin W. Peck, Inc. The management of this condominium has been turned over to 2625 Management Corporation, Inc. (Association) a nonprofit corporation charged with the assessment of charges and fees for the maintenance and operation of the common elements and other duties not material to this determination. The Respondents retained ownership of the 29th floor which is leased to King Arthur's Roundtable, Inc., a Kentucky corporation which operates a restaurant and cocktail lounge in this space. The limited common element is an express elevator from the garage and lobby to the restaurant on the 29th floor. Electricity for the operation of this elevator is currently charged to the Association. Respondents retained control of the roof of the condominium which is leased to Motorola Corporation, apparently for installation of broadcasting equipment. The structure comprising the condominium "flares" out at the 28th floor, thus making the 28th and 29th floors approximately 40 percent larger than the lower 27 floors. A limited number of parking spaces are reserved for the lessee of the 29th floor and an additional 55 parking spaces are reserved for the patrons of the restaurant. The parking spaces are part of the common elements operated by the Association. The Declaration of Restrictions, Reservations, Covenants, Conditions and Easements of Peck Plaza (contained in Exhibit 1)(hereafter referred to as Declarations) provided that the regular assessment for units would be as follows: Unit 2 SW $ 25.00 monthly Unit 3 SW (Resident Manager's apartment) -0- 29th floor Unit 400.00 monthly All other units 75.00 monthly Unit 2 SW is the second floor lobby which provides access to the express elevator and is owned by Respondents. It occupies about the same space as a one-bedroom living unit. Assessments are levied to cover common expenses such as insurance for fire and extended coverage, vandalism and malicious mischief for units, common elements and limited common elements, public liability insurance for common elements, operating expenses, maintenance expense, repairs, utilities, replacement reserve and reasonable operating reserve for common elements. The developer reserved the right to subdivide the 29th floor into 4 apartments and until so modified the Declarations provide that its owner be assessed 533.32 percent of the regular assessments assessed against standard living units. ($75 x 5.3332 which is approximately equal to $400) The Declaration of Condominium (Exhibit 1) Schedule B establishes the percentage of undivided interest in common elements and common surplus. There the 29th floor is awarded 5.621 percent, the 28th floor is awarded 5.12 percent divided equally between the four units, and the remaining floors receive 3.72 percent divided between the four units on that floor. Unit 2 SW is awarded .202 percentage. Assessments have subsequently been raised to $90 for the standard living unit and a corresponding increase for the 29th floor and Unit 2 SW. At the Association board meeting on April 12, 1975 (Minutes thereof Exhibit 5) the issue of the electricity for the express elevator being charged to the Association was raised and the board approved a motion that, since the tenant of the 29th floor was keeping the top of the building lighted, they would consider this a "swap out" and continue to pay for the electricity for the express elevator. At the board meeting on April 10, 1976 the issue of the charge for electricity for the express elevator was again raised and after Mr. Peck advised that he would not comply with the Association's prior request to install a meter and relieve the Association of the expense of the express elevator, the board voted to refer the issue to Petitioner herein for resolution. The estimated cost of the electricity for the elevator is approximately $110 per month (Exhibit 4). The Declaration provides in part: "In connection with the operation of a restaurant or other business/commercial enterprise or the operation of apartments in the twenty-ninth (29th) floor Unit there will be constructed as a Limited Common Element (as same is hereinafter defined) an express elevator which will run from the garage and lobby (which are common areas on the second floor) directly to the twenty-ninth floor Unit, nonstop, and this elevator will be for the sole use and purposes of the owner of the twenty-ninth floor Unit except as otherwise provided herein. There is a LIMITED COMMON ELEMENT appurtenant to the twenty-ninth (29th) floor Unit in this condo- minium as shown and reflected by the floor and plot plans, known as the express elevator whether the use of the twenty-ninth (29th) floor is for the purpose of access to condominium Units or to a restaurant or other business/commercial use. This Limited Common Element is reserved for the use of the Unit appurtenant thereto to the exclusion of other units, and there shall pass with the said Unit as appurtenant thereto, the exclusive right to use the Limited Common Element so appurtenant. Expenses of maintenance, repair or replacement [sic] relation to the said Limited Common Element shall be paid for by the owner of the twenty-ninth floor Unit. In the event the Developer elects to subdivide the said twenty- ninth floor Unit, then the Limited Common Element appurtenant to the said twenty-ninth floor Unit known as the express elevator shall be reapportioned among the twenty-ninth floor Unit as so subdivided." Nowhere in the Articles, By-Laws or Declarations is specific provision made for the operating expenses of the limited common element. As noted above Respondent, at the hearing, contended that, following the April 12, 1975 meeting of the board, where the motion to accept the use of the exterior lights on the top of the building for the elevator electricity as a "swap out" was carried, he took action upon this "swap out". The action he took was to continue to pay the expenses of maintenance, repair or replacement of the express elevator, to continue to pay the assessment for the 29th floor and Unit 2 SW, to repair defects in the pool and air conditioning, and to correct the odor in the hall. Also his claim for $11,500 against the Association was not pressed. However when asked if that claim had been satisfied Mr. Peck replied, no. Clause 44 of Lease Agreement (Exhibit 6) for occupancy of the 29th floor provides: "Lessor agrees to use its best efforts to have separate meters installed at its expense for all public utilities used in relation to the demised premises. In the event it is unsuccessful, submeters will be installed for gas, water and other public utilities and the cost of utilities shall be prorated on a monthly basis." The above Findings of Fact are substantially in agreement with the Proposed Findings submitted by Petitioner and Respondent. Petitioner proposed findings that: The ownership of 2 SW is irrelevant to the proceedings does not comport to the evidence that 2 SW comprises the lobby from where there is access to the express elevator; and Each residential owner is assigned one parking space per unit is not supported by any evidence regarding the number of parking spaces assigned unit owners. However neither of these findings is material to the result reached. Respondent's proposed finding that the 29th floor is presently assessed $510 per month is not in agreement with the evidence that the owner of the 29th floor, who also owns Unit 2 SW pays an assessment of $480 per month for the 29th floor and $30 per month for Unit 2 SW. Other proposed findings inconsistent with the above findings have been fully considered and are neither relevant nor material to the conclusions below.
Findings Of Fact On or about June 10, 1977, the Department issued permit number 2740-12 to the Respondent, Lamar Advertising Company, authorizing the erection of a sign on the east side of I-110, .4 mile north of SR 296 in Escambia County, Florida. On or about August 7, 1978, this permit was reported lost and the Department issued a replacement tag numbered AN498-35. The latter permit is the subject of this proceeding. Prior to the issuance of the original permit in 1977, the site was field inspected and approved by Department personnel. The Respondent's representative who submitted the permit application designated on this application that the sign location was in an unzoned area within 800 feet of a business. This representative also certified on the application that the sign to be erected would meet all of the requirements of Chapter 479, Florida Statutes. The only commercial or industrial activity that was located within 600 feet of the right-of-way of I-110, and within 800 feet of the site where the Respondent's sign was to be erected, was a brick building which had been constructed in 1977 by Bill Salter Outdoor Advertising. This building contains 800 to 1,000 square feet, and it was used as a sketch office by Bill Salter Outdoor Advertising. One employee works inside doing art work, and three salesmen use the office to make telephone calls and pick up messages. The Salter building has been constructed without windows on the back side, which is the side facing the interstate. This building is not directly on the interstate, but is located on a street back off I-110 in an unzoned area containing houses and trailer homes. This area is residential in nature, and the Salter building is the only business in the immediate vicinity. The landscape along I-110 where the subject sign is located slopes upward from the interstate to where the Salter building stands, and the area between the interstate and the Salter building is covered with foliage. In the summer months the area between I-110 and the site of the Salter building is almost completely obscured by this foliage, but during the winter when the foliage has thinned a portion of the rear of the Salter building can be seen from the interstate. There is an area in front of and on the sides of the Salter building, away from the interstate, where cars can be parked. Salesmen, workmen and customers come and go daily, using these areas for parking. However, due to the slope of the ground between the Salter building and I-110, the interstate is at such a downward angle from the building that none of these activities can be seen from I-110. There is no sign on or around the Salter building to indicate that it contains a business, and there is nothing else about either the building or the area to identify the one as a business structure or the other as a commercial area. In summary, the Bill Salter building houses a business which is located with 660 feet of the interstate, and the subject sign is within 800 feet of this business, but there are no business activities that can be seen from the main- traveled way of I-110. This location is essentially the same now as it was in 1977 when the permit was issued. In October of 1984, the site was inspected by the Department's Right- of-Way Administrator who determined that the permit had been issued in error because there was no visible commercial activity within 800 feet of the sign. In November of 1984, the Department issued a Notice of Violation advising the Respondent that the subject permit was being revoked because the sign had not been erected in a zoned or unzoned commercial area.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that permit number AN 498-35 held by the Respondent, Lamar Advertising Company, authorizing a sign located on the east side of I-110, .4 mile north of SR 296 in Escambia County, Florida, be revoked, and the subject sign removed. THIS RECOMMENDED ORDER entered this 14th day of August, 1985, in Tallahassee, Leon County, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of August, 1985. COPIES FURNISHED: Maxine F. Ferguson, Esquire Haydon Burns Bldg., M.S. Tallahassee, Florida 32301-8064 Robert P. Gaines, Esquire P. O. Box 12950 Pensacola, Florida 32576 Hon. Paul A. Pappas Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
Findings Of Fact Petitioner Haul-It, Inc., is a trucking company in the business of hauling road building materials. It owns 19 trucks and 13 trailers worth about $106,000; and owes between $75,000 and $79,000 to a bank. Occasionally petitioner engages additional trucks and drivers. All but eight of its 15 or 16 employees are truck drivers. Haul-It, Inc., was organized in 1973. Jack Taylor and his father started the business but later sold out to Hubert E. Real, the president, half- owner and operator of Columbia Paving, and Wiley Jinwright, a 24-year employee of Columbia Paving. Mr. Jinwright became president of Haul-It, Inc., and Jack Taylor stayed on as truck foreman. Messrs. Real and Jinwright each owned 20 shares of stock, representing half interest in petitioner. Columbia Paving itself has never held any of the 40 shares of stock that petitioner has issued. In November of 1980, Mr. Real conveyed all 20 of his shares to his wife, Helen Real; and Mr. Jinwright conveyed one share to Mrs. Real. Both transfers of stock to Mrs. Real were gratuitous. She knew at the time that her ownership might help Haul-It, Inc., qualify as a minority business enterprise. In addition, Mr. Real "had had a couple of heart attacks" (T. 14) and Mrs. Real "thought it would be nice to have a related [to Columbia Paving] business." (T. 14.) The evidence did not reveal whether Mr. Real has spent more, less, or the same amount of time with petitioner's affairs since his divestiture as before. Mr. Real remains active as president of Columbia Paving. From November of 1980 to the time of hearing, Mrs. Real has owned 52.5 percent of petitioner's stock and Mr. Jinwright has owned 47.5 percent. Petitioner's only offices are housed in a trailer located on land owned by Columbia Paving. Haul-It, Inc., pays Columbia Paving rent for the land on which its office trailer, trucks, and other equipment are parked. At the time of the hearing, between 70 and 80 percent of Haul-It, Inc.'s work was being performed under contract to Columbia Paving. As far as the evidence showed, petitioner has always performed most of its services under contract to Columbia Paving. Although it has had other customers, Columbia Paving is petitioner's only regular customer. (T. 27.) Petitioner uses Columbia Paving's computer to keep its books and shares a bookkeeper with Columbia Paving. Each company pays the bookkeeper a separate salary. Mrs. Real sits on Columbia Paving's board of directors. Neither Columbia Paving nor any other entity uses petitioner's hauling equipment unless it has contracted to do so. When Haul-It, Inc., "bid[s] through Columbia Paving" (T. 39) in response to invitations by the Department of Transportation, Columbia Paving personnel check the bid over to make sure that it "fits whatever plan or whatever estimates they feel are in order." (T. 40.) Soon after she became owner of a majority of petitioner's Stock, Mrs. Real became petitioner's vice-president, secretary, and treasurer, even though she had had no prior experience in the trucking business. Mr. Jinwright remains president of Haul-It, Inc. It was also in November of 1980 that Haul-It, Inc., applied for certification as a minority business enterprise. At that time and for some months afterward, Mrs. Real was not working for Haul-It, Inc., on any regular schedule. On the basis of the information petitioner furnished with its application, respondent, in November of 1980, "certified them for 12 months, on the condition that an on-site review would be conducted and at that time the decision would be made as to the ownership and control and whether this minority business enterprise should be continued as certified." (T. 61.) In April of 1981, respondent's Mr. Nath conducted an on-site review. At that time, Mr. Nath requested additional documents which petitioner eventually mailed to respondent. In September of 1981, respondent for the first time communicated to Haul-It, Inc., its intention to disqualify petitioner as a minority business enterprise. After receiving this news, Mrs. Real began going to work for petitioner daily. She has an office in the trailer that she shares with Mr. Jinwright, whose role in Haul-It, Inc., was reduced to cosigning checks when Mrs. Real began working full time. Most of Mr. Jinwright's time is now spent as Superintendent of Columbia Paving's four asphalt plants. Even so, he still draws a salary from Haul-It, Inc., equal to Mrs. Real's salary. Despite their respective titles, both Mr. Jinwright and Mrs. Real act on the assumption that she, rather than he, has ultimate authority in the conduct of Haul-It, Inc.'s business. Mrs. Real has full authority to hire and fire, authority which she has delegated, in the case of the truck drivers, to Jack Taylor. She has the final say on all questions of policy and operations that arise in the business. Haul-It, Inc., cannot borrow money or make expenditures without her permission. Jack Taylor and two other employees buy for Haul-It, Inc., but she cosigns all checks with Mr. Jinwright. She has not learned how to prepare a written bid for the Department of Transportation, although she is involved with bidding. Mrs. Real relies heavily on Jack Taylor's bidding expertise, as have petitioner's other owners. Petitioner's proposed findings of fact and conclusions of law and respondent's proposed findings of fact, conclusions of law, and recommendation reflect the good work done in this case by counsel on both sides. To the limited extent proposed findings have not been adopted, they have been deemed immaterial or unsupported by the evidence.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent deny Haul-It, Inc., certification as a minority business enterprise. DONE AND ENTERED this 3rd day of March, 1982, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of March, 1982. COPIES FURNISHED: Patrick E. Hurley, Esquire Post Office Drawer 1049 Tallahassee, Florida 32302 Vernon L. Whittier, Jr., Esquire Ella Jane P. Davis, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 Paul A. Pappas, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
The Issue The issue in this case is whether Plan Amendments 07-L08 and 07-L39, adopted by Marion County Ordinance 07-31, are "in compliance," as defined by Section 163.3184(1)(b), Florida Statutes.1
Findings Of Fact Intervenors are the owners and developers of 359.30 acres of land south of Ocala in Marion County north of County Road (CR) 484, between Interstate Highway 75 (I-75) and the City of Belleview (the Golden Oaks site). They also own land in Marion County in the Ocala Ranchettes subdivision, which is in the extreme northeast corner of Marion County. On November 20, 2007, the Marion County Board of County Commissioners adopted Comprehensive Plan Amendments 07-L08 and 07-L39. Plan Amendment 07-L08 changes the Future Land Use Map (FLUM) designation for the Golden Oaks site from Rural Land to Medium Density Residential, which has an open space requirement of at least 350 square feet per residential unit. Plan Amendment 07-L39 is a text amendment to the Future Land Use Element (FLUE) limiting development on the Golden Oaks site to a maximum of 523 single-family residential units. Mr. and Mrs. Babcock own land and reside in Marion County near the 359.30 acres subject to the FLUM change. No evidence was presented during the hearing as to whether the other Petitioners own land or reside in Marion County. However, Respondents and Intervenors stipulated in their Joint PRO that all Petitioners are "affected," as defined in Section 163.3184(1)(a), Florida Statutes. Petitioners and Intervenors submitted oral or written comments on the Plan Amendments between the transmittal hearing and adoption of the Plan Amendments. Petitioners contend that, as a result of the Plan Amendments, the Marion County Comprehensive Plan fails to discourage urban sprawl, as required by Rule 9J-5.006(3)(b)8. 6. Rule 9J-5.003(134) states: "Urban sprawl" means urban development or uses which are located in predominantly rural areas, or rural areas interspersed with generally low-intensity or low-density urban uses, and which are characterized by one or more of the following conditions: (a) The premature or poorly planned conversion of rural land to other uses; (b) The creation of areas of urban development or uses which are not functionally related to land uses which predominate the adjacent area; or (c) The creation of areas of urban development or uses which fail to maximize the use of existing public facilities or the use of areas within which public services are currently provided. Urban sprawl is typically manifested in one or more of the following land use or development patterns: Leapfrog or scattered development; ribbon or strip commercial or other development; or large expanses of predominantly low- intensity, low-density, or single-use development. Whether a comprehensive plan or plan amendment fails to discourage urban sprawl is determined by Rule 9J-5.006(5), which includes a complicated method for evaluating 13 primary indicators of urban sprawl. The first primary indicator is a plan or plan amendment that: "Promotes, allows or designates for development substantial areas of the jurisdiction to develop as low- intensity, low-density, or single-use development or uses in excess of demonstrated need." The Plan Amendments are not "in excess of demonstrated need" when considered on a county-wide basis because Intervenors and the County entered into a binding Developer's Agreement not to develop 475 lots in the Ocala Ranchettes subdivision (leaving just five vested lots in the subdivision).3 However, the 523 maximum allowable residential units under the Plan Amendments exceed demonstrated need in the County's Planning District 14, where Golden Oaks is located.4 The second primary indicator is a plan or plan amendment that: "Promotes, allows or designates significant amounts of urban development to occur in rural areas at substantial distances from existing urban areas while leaping over undeveloped lands which are available and suitable for development." Golden Oaks is in an area that is in transition. It is approximately three miles east of I-75 and approximately three miles southwest of Belleview (approximately four road miles along CR 484). It is approximately a half-mile west of the western edge of the Urban Reserve area that extends southwest from Belleview. Much of the land surrounding Golden Oaks is rural in character. The Golden Oaks site has a flag-like shape. It is narrow where it fronts on the north side of CR 484 (the "flagpole") and widens at a distance to the north of CR 484 (the "flag"). Much frontage along CR 484 is now in commercial/business use (including frontage immediately east of the "flagpole" of the Golden Oaks site and south of the "flag" part of Golden Oaks) or designated for future commercial or mixed use (including the Goolsby mixed-use development and a rural activity center, which are on CR 484 approximately two miles east and west of Golden Oaks, respectively). Several tracts in the CR 484 corridor between I-75 and Belleview are developed with residential densities as high as or higher than the densities designated for Golden Oaks by the Plan Amendments. One of these is a sprawling, non-conforming, but vested subdivision approximately a half-mile east of Golden Oaks called Belleview Heights. CR 484 is being four-laned between I-75 and the City of Belleview. Additional sewer and water capacity is being placed in the CR 484 corridor, which is transitioning into a more urban area. A new county library is being built along CR 484 approximately two miles east of Golden Oaks in the Goolsby mixed- use development. The evidence was that there is some land closer to existing urban areas than Golden Oaks that is available and suitable for development, but it was not clear from the evidence how much. There also are areas of urban infill that could be developed or redeveloped, but it was not clear from the evidence how much is available or if any would be suitable for large-scale development. The third primary indicator is a plan or plan amendment that: "Promotes, allows or designates urban development in radial, strip, isolated or ribbon patterns generally emanating from existing urban developments." The Plan Amendments are part of an emerging pattern of development in the CR 484 corridor. The fourth primary indicator is a plan or plan amendment that: "As a result of premature or poorly planned conversion of rural land to other uses, fails adequately to protect and conserve natural resources, such as wetlands, floodplains, native vegetation, environmentally sensitive areas, natural groundwater aquifer recharge areas, lakes, rivers, shorelines, beaches, bays, estuarine systems, and other significant natural systems." Much of Golden Oaks was part of the larger Belleview Forest that has been clear-cut. There are at least two hydrated air-filled caves on the Golden Oaks site--the Belleview Formation Cave and the Loquat Cave. It has not been conclusively determined that there are no other similar caves on the site. The two known caves are worthy of preservation for scientific and other reasons. If preserved, they would have to be buffered from development by setbacks, and surface water would have to be managed to prevent contaminants from entering the caves, which likely are connected to the underlying aquifer. Care would have to be taken to strike a balance so that surface water management activities both protect water quality and do not lower the water table enough to de- hydrate the caves. The evidence was that these objectives can be accomplished under the Marion County Comprehensive Plan, which requires springs protection. The Ocala Ranchettes subdivision is in an environmentally sensitive area of wet prairie. The environmental benefits of the Developer's Agreement offset any environmental detriment from the Plan Amendments. The fifth primary indicator is a plan or plan amendment that: "Fails adequately to protect adjacent agricultural areas and activities, including silviculture, and including active agricultural and silvicultural activities as well as passive agricultural activities and dormant, unique and prime farmlands and soils." With the 523-unit maximum, it should be possible to develop Golden Oaks and adequately protect adjacent agricultural areas (mainly, horse farms and pastures) through buffers and limited road access to CR 484 (versus access through the rural areas to the immediate west, north, and east). One concern of Petitioners is the eventual conversion of more rural land to urban uses, which would be the subject of future land use decisions. The sixth primary indicator is a plan or plan amendment that: "Fails to maximize use of existing public facilities and services." The seventh is the same but for future public facilities and services. The eighth primary indicator is similar--a plan or plan amendment that: "Allows for land use patterns or timing which disproportionately increase the cost in time, money and energy, of providing and maintaining facilities and services, including roads, potable water, sanitary sewer, stormwater management, law enforcement, education, health care, fire and emergency response, and general government." Golden Oaks is several miles from most public facilities and services. However, closer public facilities and services are planned or being built (for example, the four-laning of CR 484, sewer force mains and lines, water lines, and schools). Because the Plan Amendments limit density at Golden Oaks, they do not maximize the use of public facilities and services. Excess capacity is planned and being added for future development in the CR 484 corridor in addition to Golden Oaks. The ninth primary indicator is a plan or plan amendment that: "Fails to provide a clear separation between rural and urban uses." Since the CR 484 corridor is in transition, urban uses are being introduced into what was a rural area. During the transition, there is not going to be a clear separation between rural and urban uses. The tenth primary indicator is a plan or plan amendment that: "Discourages or inhibits infill development or the redevelopment of existing neighborhoods and communities." Because they allow development that is not infill or redevelopment, the Plan Amendments discourage or inhibit infill or redevelopment to a limited extent. The eleventh primary indicator is a plan or plan amendment that: "Fails to encourage an attractive and functional mix of uses." The Plan Amendments themselves provide for residential use only. It was not proven that they will fail to encourage an attractive and functional mix of uses. Limiting access to Golden Oaks to CR 484 (versus access through the rural areas to the immediate west, north, and east) or through the existing commercial areas fronting CR 484 to the immediate south of Golden Oaks (east of the "flagpole" and south of the "flag" part of the site) could help encourage an attractive and functional mix of uses. The twelfth primary indicator is a plan or plan amendment that: "Results in poor accessibility among linked or related land uses." Golden Oaks is several miles from most existing linked or related land uses. As development proceeds in the emerging pattern along the CR 484 corridor, more linked or related land uses will be closer. The thirteenth primary indicator is a plan or plan amendment that: "Results in the loss of significant amounts of functional open space." To the extent that the Plan Amendments result in a loss of functional open space, the loss is countered by the Developer's Agreement on the Ocala Ranchettes subdivision. Considering the extent, amount and frequency of the indicators of urban sprawl, and the presence and potential effects of multiple indicators, it is fairly debatable whether the indicators of urban sprawl collectively reflect a failure of the Plan Amendments, and the Marion County Comprehensive Plan as a whole, to discourage urban sprawl. See Fla. Admin. Code R. 9J- 5.006(5)(d) and (h).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order determining that the Plan Amendments are "in compliance." DONE AND ENTERED this 19th day of November, 2009, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of November, 2009.
The Issue Whether the Department of Corrections' proposed award of Lease No. 700:0710 to Melstine Corporation was proper.
Findings Of Fact The Respondent, Department of Corrections, Region Four (Department), issued a request for proposals for approximately 7,500 square feet of office space in Dade County which was designated as Lease No. 700:0710 (RFP). The office space was to be used as offices for the professional and support staff who were providing probation and parole supervision. Petitioner Wharton Little River (Wharton), Intervenor Green East #2, Ltd. (Green East), and Melstine Corporation (Melstine) submitted proposals to the Department. The Department's evaluation committee evaluated the three proposals, and their evaluation included a site visit to each of the proposed locations. Melstine Corporation received the highest number of points followed by Wharton Little River. The Department notified all bidders of its intent to award the lease to Melstine. On March 15, 1995, Wharton filed a notice of intent to protest the Department's decision to award the lease to Melstine. Wharton filed its formal written protest on March 14, 1995. The RFP set forth the requirements for submitting a responsive proposal and the criteria to be used in evaluating the proposals. The bidders were required to provide 55 offstreet parking spaces for the exclusive use of the Department's employees and clients at no additional cost to the Department. This provision is interpreted to mean that the bidder could propose 55 exclusive parking spaces plus or minus one to two percent. The RFP provided spaces in which the bidders were to indicate whether they were proposing onsite or offsite parking. The RFP also provides: Federal, state, county, and local laws, ordinances, rules, and regulations that in any manner affect the items covered herein apply. Lack of knowledge by the bidder will in no way be a cause for relief from respon- sibility. This provision is interpreted to include applicable zoning codes. Both Melstine and Wharton proposed to provide 55 exclusive parking spaces onsite. Green East proposed 40 exclusive spaces and 20 nonexclusive spaces. The evidence did not establish whether Green East's spaces were onsite or offsite. The evaluation criteria assigned a maximum number of points a bidder could receive for specific criteria. The maximum points totaled 100. The criteria for evaluating parking was the "[p]roximity of adequate parking area to the building. Must be well lighted." The maximum number of points that could be awarded to a bidder for parking was 10. Melstine received 10 points for parking. The space proposed by Melstine is located on the ground floor of a six-story building with approximately 87,000 square feet. The building is currently vacant. Melstine is actively seeking to lease other portions of the building. In its proposal Melstine stated that its intention was to market the remaining space on the ground floor to the banking industry as a banking location. There are 54 onsite parking spaces on the property proposed by Melstine. There is additional space onsite that could be converted to 20 parking spaces, bringing the total parking spaces available on the Melstine property to There are approximately 50 offsite parking spaces available in a lot across the street from the building proposed by Melstine. Melstine provided a map in its proposal showing that the located property was located in a C-1, limited commercial, zone. By letter dated February 21, 1995, Phillip J. Procacci, advised the Department that he felt that the Melstine proposal did not meet the requirements of the RFP because the parking spaces did not meet the zoning code requirements of the City of Miami. Department staff contacted the City of Miami zoning officials and were advised that the parking proposed by Melstine was acceptable under the City of Miami's zoning regulations. The Department relied on the representations from the City of Miami that the Melstine property would be in conformance with the zoning code. By letter dated April 17, 1995, Juan C. Gonzalez, Acting Zoning Administrator, advised Melstine's agent that the parking on the Melstine site would be acceptable as meeting the zoning requirements for the City of Miami for office use without the need of providing additional spaces for existing office square footage. By letter dated April 24, 1995, Mr. Gonzalez further clarified the City of Miami's position on parking spaces assigned to individual tenants. While the code does mandate a certain amount of spaces to be provided on site for individual uses, the code is silent on how the parking will be assigned, therefore, the city does not become involved or regulates assignment of existing parking spaces. Region Four of the Department has not experienced a problem with lessors not providing adequate parking in the past. Melstine's proposal met the parking requirements of the RFP and complied with the City of Miami's zoning ordinance.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the bid protest of Wharton Little River, Investment, Inc. by Procacci Commercial Realty, Inc. be dismissed and that Lease No. 700:0710 be awarded to Melstine Corporation. DONE AND ENTERED this 20th day of June, 1995, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 20th day of June, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-1839BID To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. (Proposed Recommended Order After Reopening of Hearing) Paragraphs 1-3: Accepted in substance. Paragraph 4: Accepted in substance as it refers to the parking criteria. The remainder is rejected as unnecessary. Paragraph 5: Accepted in substance. Paragraph 6: Accepted to the extent that Wharton received the second highest number of points. Paragraphs 7-11: Accepted in substance. Paragraph 12: Rejected as not supported by the evidence. There was no evidence that access to the parking lot from the Melstine property is owned by Melstine. Paragraphs 13-22: Rejected as subordinate to the facts actually found. Respondent's Proposed Findings of Fact. Paragraphs 1-23: Accepted in substance. Paragraphs 24-25: Rejected as subordinate to the facts found. Paragraphs 26-28: Accepted in substance. Paragraph 29: Accepted. Paragraph 30: Rejected as subordinate to the facts found. Paragraph 31: Accepted. Paragraphs 32-34: Rejected as subordinate to the facts found. Paragraphs 35-41: Accepted in substance. Intervenor's Proposed Findings of Fact. (The paragraphs are unnumbered. Each paragraph will be addressed in the order it appears under the section entitled, "The Computation of Error.") Paragraph 1: The first three sentences are accepted in substance. The fifth, sixth, and seventh sentences are rejected as subordinate to the facts found. The remainder is rejected as not supported by the greater weight of the evidence. Paragraph 2: These adopted paragraphs are addressed above under Respondent's Proposed Findings of Fact. Paragraphs 3-4: Rejected as subordinate to the facts found. Paragraph 5: Rejected as a conclusion of law. Paragraph 6: Rejected as not supported by the greater weight of the evidence. COPIES FURNISHED: R. Beth Atchison Assistant General Counsel Florida Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 Robert A. Sweetapple, Esquire Sweetapple, Broeker & Varkas 465 East Palmetto Park Road Boca Raton, Florida 33432 John R. Beranek, Esquire 227 South Calhoun Street Post Office Box 391 Tallahassee, Florida Harry K. Singletary, 2601 Blairstone Road 32302 Jr., Secretary Tallahassee, Florida 32399-2500 Louis A. Vargas General Counsel 2601 Blairstone Road Tallahassee, Florida 32399-2500
