The Issue The issues in this case are whether Respondent violated Subsections 489.129(1)(j) and (m), Florida Statutes (2004),1/ and, if so, what penalty should be imposed.
Findings Of Fact The Parties At all times relevant to this proceeding, Respondent was a certified general contractor, having been issued License No. CGC 1506043 by the Florida Construction Industry Licensing Board ("Board" or "Construction Industry Licensing Board") and was the primary qualifying agent for Rankor Corporation. The Board is the state agency charged with regulating the practice of contracting in the State of Florida pursuant to Chapters 455 and 489, Florida Statutes. At all times relevant, Rankor Corporation was a contractor-qualified business in the State of Florida, having been issued License No. QB 26667. The officers of the Rankor Corporation were as follows: Tina M. Despin, president; Stephen Despin, Sr., executive vice president; Jerold S. Bakelman, vice president and treasurer; and Eldora Bakelman, secretary. The directors of the Rankor Corporation were Respondent, Mr. Bakelman and Mr. Despin. Jerold Bakelman was licensed as a financially responsible officer by the Board from August 27, 2003, to January 7, 2005. Mr. Bakelman's license number was FRO 711. Transactions Related to Longoria Property In December 2004, Antonia Longoria met with Tina Despin and Stephen Despin, Sr., about replacing the roof and performing other repairs at a house owned by Ms. Longoria located at 4716 Nottingham Drive, Ft. Myers, Florida ("Nottingham Drive house" or "Nottingham Drive property").2/ On or about December 7, 2004, Ms. Longoria entered into a contract with Rankor Corporation to remove and replace the roof and to make the other repairs at the Nottingham Drive house (hereinafter referred to as "Contract No. 1" or "December 7, 2004, Contract"). The cost for the scope of work in Contract No. 1, including the cost of obtaining permits was $32,690.00. Pursuant to the terms of the contract, one-third of the contract amount, $10,896.67, was due when the contract was signed; one-third of the contract amount was due when the trusses were delivered; $8,396.67 was due when the job was completed; and $2,500.00 was due after the final inspection of the job was completed. The December 7, 2004, Contract was signed by Tina Despin on behalf of Rankor Corporation and by Ms. Longoria. On or about December 7, 2004, Ms. Longoria paid Rankor Corporation, by personal check, a payment in the amount of $10,896.67 for the work to be done pursuant to Contract No. 1. Ms. Longoria made the check out to Rankor Corporation and gave it to Ms. Despin. On or about December 17, 2004, about ten days after Contract No. 1 was executed, Ms. Longoria entered into a second contract with Rankor Corporation to do additional work at the Nottingham Drive house (hereinafter referred to as "Contract No. 2" or "December 17, 2004, Contract"). Under the terms of the December 17, 2004, Contract, Rankor Corporation was required to relocate the entrance to the house from the side to the front of the house. The cost for the scope of work under this contract was $10,770.00, with payments to be made in three installments. Pursuant to the terms of Contract No. 2, one-third of the contract amount, $3,590.00, was due when the contract was signed; one-third was due when the trusses were delivered; and the remaining one-third was due upon completion of the project. Contract No. 2 was signed by Tina Despin on behalf of Rankor Corporation and by Ms. Longoria on or about December 17, 2004. Two days later, on or about December 19, 2004, Ms. Longoria paid Mr. Despin, Sr., by personal check, a payment in the amount of $3,590.00 for the project under this contract. The check was made out to "Stephen E. Despin" and not to Rankor Corporation. Ms. Longoria paid the $3,590.00 to Mr. Despin, Sr., as a representative of Rankor Corporation. The scope of work under both Contract No. 1 and Contract No. 2 required permits from the City of Ft. Myers Building Department before work could commence. However, after the two contracts were executed, Rankor Corporation never applied for the permits necessary to commence work under those contracts. At or near the end of January 2005, Ms. Longoria began calling Mr. Despin, Sr., to find out when he would begin the project at the Nottingham Drive house. After several unsuccessful attempts by Ms. Longoria to reach Mr. Despin, Sr., he returned her call in February or March, but Rankor Corporation never performed any of the work required under Contract No. 1 and Contract No. 2. No one from Rankor Corporation ever performed any work on Ms. Longoria's Nottingham Drive house. Notwithstanding its failure to perform any of the work required under the December 7, 2004, Contract and the December 17, 2004, Contract, Rankor Corporation did not return Ms. Longoria's two payments made pursuant to the terms of those contracts. The total of these two payments was $14,486.67. In or about March 2005, the City of Ft. Myers Code Enforcement unit posted a notice on the Nottingham Drive property advising Ms. Longoria that the subject property was in violation of the city code. The notice gave Ms. Longoria, as owner of the property, 30 days to have the repairs done to bring the house into compliance with the code. The violations cited in the notice were related to damages the Nottingham Drive house sustained from Hurricane Charlie. On or about April 19, 2005, Ms. Longoria entered into a contract with Roofmaster of South Florida, Inc. ("Roofmaster") to repair the roof at the Nottingham Drive house in order for the roof to be in compliance with the City of Ft. Myers code. The scope of work under the contract with Roofmaster was smaller than the scope of work under the December 7, 2004, Contract between Ms. Longoria and Rankor Corporation. The contact price for the project with Roofmaster was $9,500.00. In or about May 2005, Roofmaster commenced and completed work under its contract with Ms. Longoria. For this work, Ms. Longoria paid Roofmaster the contract price of $9,500.00. At no point in time until May 2005, the time at which Roofmaster commenced work under the contract with Ms. Longoria, did Ms. Longoria prevent Rankor Corporation from commencing and completing the work projects under the December 7, 2004, Contract and the December 17, 2004, Contract. Respondent's Attempts to be Removed as Qualifying Agent On January 5, 2005, Respondent wrote a letter to Mr. Bakelman memorializing Respondent's and Bakelman's conversation concerning Mr. Bakelman's decision to no longer serve as the financially responsible officer for Rankor Corporation. In the letter, Respondent recounted that during that conversation, he (Respondent) had "executed documents supplied by you [Bakelman] from the State of Florida Construction Industry Licensing Board releasing you [Bakelman] from said position with immediate effect." By letter dated January 5, 2005, Respondent forwarded a copy of his January 5, 2005 letter to Mr. Bakelman to the secretary of the Construction Industry Licensing Board in Tallahassee, Florida. Respondent requested that the letter be recorded and filed with pertinent information maintained by that office for "the business qualified by me [Respondent], known as Rankor Corporation. Apparently concerned about Mr. Bakelman's stepping down as Rankor Corporation's financially responsible officer, Respondent contacted the Department's Customer Service section on January 5, 2005, about the situation. At that time, a person in that section told Respondent that he should inform the company officers that they had an obligation to secure a new financially responsible officer, and if they did not, he was obligated either to act in that position or to terminate his position as qualifying representative. On January 7, 2005, Bakelman was properly removed as the financially responsible officer for Rankor Corporation and, thereby, ceased being the financially responsible officer for Rankor Corporation. Upon Mr. Bakelman's being properly removed as the financially responsible officer, Respondent, as the qualifying agent, became responsible for the duties and obligations related to Rankor Corporation's financial matters. By letter dated February 7, 2005, Respondent advised Stephen and Tina Despin (Stephen and Tina) that he was terminating his position as the primary qualifying agent for Rankor Corporation. In this letter, Respondent recounted a January 5, 2005, letter to the Despins in which he indicated that in light of Mr. Bakelman's resignation, he (Respondent) was requiring them to secure a financially responsible officer within two weeks. According to the letter, the reason Respondent was terminating his position with the company was that the Despins had failed to do so. In addition to advising the Despins that he was terminating his position as qualifying agent for Rankor Corporation, Respondent's letter provided the following: Pursuant to guidelines of CILB [Construction Industry Licensing Board], it is required that no new contracts or construction endeavors requiring the use of my license be undertaken, this includes, but is not limited to, the "pulling" of permits. Furthermore, my license number is to be removed form any signage or advertising immediately, which would serve to give the impression that Rankor is acting as a certified general contractor. The only work you are permitted to perform is to conclude projects already underway, and I was advised by the board [Construction Industry Licensing Board] that you should secure another qualifier as soon as possible. I will advise the local building departments of the change of status as well. Respondent sent the February 7, 2005, letter to the Despins by certified mail. According to the return receipt, Tina Despin signed for and received the letter on February 8, 2005. Respondent also sent a copy of his February 7, 2005, letter to the Despins to the Construction Industry Licensing Board. On February 7, 2005, Respondent sent a letter to the Board informing the Board of Respondent's termination as the primary qualifying agent for Rankor Corporation and requesting the appropriate documents to be removed as the primary qualifying agent for Rankor Corporation. The letter provided, in relevant part, the following: Construction Industry Licensing Board Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Fl [sic] 32399 Re.: Termination of Acting as Qualifier for Rankor Corporation Dear Sirs or Mesdames: As per attached letter I with immediate effect remove myself as qualifier for Rankor Corporation, QB 26667[.] Please provide me with any forms required to effect completion of the same, this should not be considered in any manner a renunciation or modification of my termination as qualifier. This act is irrevocable and immediate. I am a certified General Contractor, [sic] [M]y license number is CGC 1506043. The "attached letter" referred to in Respondent's letter to the Board, quoted in paragraph 30, is Respondent's February 7, 2005, letter to the Despins. Larissa Vaughn has been the administrative assistant for the executive director of the Board since February 2005. As an administrative assistant, Ms. Vaughn is familiar with the licensure process for construction contractors. Ms. Vaughn testified that the Board never received Respondent's February 7, 2005, letter to the Board, which informed the Board of Respondent's termination as the primary qualifying agent for Rankor Corporation and requested that he be sent appropriate documents to be removed as the primary qualifying agent for Rankor Corporation. The reason the Board never received the letter is not clear. However, Ms. Vaughn testified that a letter, such as Respondent's February 7, 2005, letter to the Board, would not have necessarily been received. According to Ms. Vaughn, "[a] lot of letters like this are received and [when] there is a request for forms, it goes to our customer contact center." Ms. Vaughn testified that even if the Board had received Respondent's February 7, 2005, letter, that correspondence would not have been sufficient in itself to remove Respondent as the primary qualifying agent for Rankor Corporation. According to Ms. Vaughn, the Department requires that to be removed as the primary qualifying agent for a contractor-qualified business in the State of Florida, a licensed contractor must submit to the Board a properly completed change of status application. Ms. Vaughn testified that a change of status application can be requested and received from the Department by phone, e-mail, or internet.3/ On September 13, 2005, Respondent submitted a change of status application to the Board. Almost two years later, Respondent's change of status application remains open and has not been approved by the Board. Respondent's efforts to terminate his status as the qualifying agent for Rankor Corporation were unsuccessful for the reasons stated above. In this case, even if Respondent's February 7, 2005, letter had effectively terminated his status as qualifying agent, the fact remains that he was the qualifying agent in December 2004 when Rankor Corporation entered into the two contracts with Mrs. Longoria. Moreover, Respondent became responsible for Rankor Corporation's financial matters after Mr. Bakelman was properly released as the company's financially responsible officer. There is no evidence that Respondent has been previously cited for violations under Chapter 489, Florida Statutes. The total investigative costs of this case to Petitioner, excluding costs associated with any attorney's time, for Department Case No. 2005-028129 was $408.37 (four hundred eight dollars and thirty seven cents).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Department of Business and Professional Regulations, Construction Industry Licensing Board, enter a final order: (1) finding that Respondent, Joseph D. Sloboda, violated Subsections 489.129(1)(j) and (m), Florida Statutes; (2) imposing a $1,000 fine for each violation; (3) requiring Respondent to make restitution to Antonia Longoria in the amount of $14,486.67; and (4) requiring Respondent to pay investigative costs associated with this case of $408.37. DONE AND ENTERED this 30th day of November, 2007, in Tallahassee, Leon County, Florida. S 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 30th day of November, 2007.
Findings Of Fact The following findings of fact are made based upon a stipulation entered into by all parties on the record: S & L Property Managements, Inc., Intervenor, was the lowest bidder for lease number 590:1651 by between approximately $84,000 and $105,000, exclusive of moving costs, over the basic five year term of the lease. There is no evidence that Intervenor's facility (Howard Building) is structurally unsound, and in fact the Department of Health and Rehabilitative services, Respondent, procured an engineering report which showed Intervenor's facility to be structurally sound. Both Intervenor's and Southmark Management Corporation's, Petitioner's, bids on this lease met all bid requirements. Both were qualified bidders for award of this leased except for Petitioner's objection and contention that bidders were required to include present value calculations with their bids, which Petitioner did but Intervenor did not. Intervenor agreed with Respondent that if it received this award, it would renovate the leased space in its facility to meet Respondent's reasonable requirements. There is no issue regarding the conformity of Intervenor's bid with handicap design requirements. Preaward documents, memoranda and correspondence from Respondent only recommended that Petitioner be awarded this lease and did not advise Petitioner it had been awarded the lease. Robert Brady, Respondent's Director of General services, was the person who was to make the final decision concerning the award of this lease. Prior to the award of the lease to Intervenor, Brady determined that the Department of Corrections, present tenant in Intervenor's facility was satisfied with its occupancy, and also that the leased space would meet bid specifications. Petitioner chose to leave its bid open, even though it could have withdrawn its bid after the expiration of the thirty day period following the bid opening. Both Petitioner and Intervenor took actions and expended sums of money in the expectation of being awarded the lease. Intervenor acted after being advised it had been awarded this lease. There is no allegation by Petitioner that the award of this lease to Intervenor was made on the basis of any improper influence exerted upon or by Respondent by any of the bidders, or by any other person. Respondent delayed the award of this lease beyond thirty days after the bid opening. The following findings of fact are made based upon the evidence presented: Petitioner and Intervenor timely submitted bids in response to Respondent's Invitation to Bid on lease number 590:1651 which was for 12,312 square feet of space for the Office of Disability Determination in Tampa, Hillsborough County, Florida. The Office of Disability Determination had been a tenant in Petitioner's facility for six years, and continues to occupy space in Petitioner's facility until this bid protest is resolved. Since approximately October 1984 Respondent has not had a written lease with Petitioner for its present space despite repeated efforts by Petitioner to obtain an executed lease from Respondent. Bids which were received were evaluated by a three person committee composed of Respondent's employees familiar with the space needs of the Office of Disability Determination. The evaluation criteria, or award factors, were set forth in the Invitation to Bid. Rental rate over the basic term of the lease was weighted twice as heavily as any of the other eleven (11) criteria. Upon its initial review, the committee recommended that the award be made to Petitioner, and Leonard Polinsky, Property Manager for Petitioners was informed of this recommendation. Based upon a 100 point scaled Petitioner's initial evaluation was from .2 to 2 points higher than Intervenor's. Polinsky assumed that the actual award was a mere formality, and therefore expended approximately $700 for preliminary architectural sketches of lease space renovations. This initial evaluation committee recommendation was based, in part, on its concerns about the structural soundness and maintenance of Intervenor's facility. Petitioner did not know who would actually make the award on behalf of Respondent or what the authority of the evaluation committee was. Petitioner did not object to Respondent's delay of this award beyond the thirty-day time period called for in the Invitation to Bid, and suffered no harm as a result of this delay. The delay was caused by Respondent's investigation of the structural soundness of Intervenor's facility, as well as the experience of its present tenants. Following completion of this investigation, the evaluation committee met again, reevaluated the bids, and recommended Intervenor be awarded this lease. Respondent, through Robert Brady, determined that the award should be made to Intervenor after completing its investigation, reviewing the committee's reevaluation of bids, and being satisfied that this award would be in the best interests of the state. This decision was based primarily on the following factors: After investigation, no structural or maintenance problems were found to exist, which had been initial concerns of the committee. Intervenor was low bidder for the lease over the five year term of the lease. Both bids were responsive and met all bid requirements. Intervenor's facility was shown to be structurally sound and suitable for Respondent's needs. Intervenor's failure to include present value calculations of the rental rate in its bid did not disqualify it since bidders were not required to include these calculations. Respondent routinely did its own calculations of present value on each bid.
Recommendation Based upon the foregoing, it is recommended that Respondent enter a Final Order awarding lease number 590:1651 to Intervenor. DONE and ENTERED this 15th day of November 1985, at Tallahassee Florida. Hearings Hearings DONALD D. CONN, Hearing Officer Division of Administrative The Oakland Building 2009 Apalachee Parkway Tallahassee Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative this 15day of November 1985. APPENDIX (DOAH Case No. 85-3158BID) Rulings on Petitioner's Proposed Findings of Fact: 1-2. Adopted in Finding of Fact 13. Rejected as a Finding of Fact but included in introductory material. Rejected as simply a statement of position. Adopted in part in Finding of Fact 14. Rejected as irrelevant and unnecessary. Adopted in Findings of Fact 9, 12, 16. 8-9. Adopted in part in Finding of Fact 13, otherwise rejected as irrelevant and unnecessary. 10-11. Adopted in part in Finding of Fact 14, otherwise rejected as irrelevant and not based on competent substantial evidence. Rejected as unnecessary and irrelevant. Adopted in part in Finding of Fact 14. 14-16. Rejected as simply a statement of position and argument in support of Petitioner's position. 17. Adopted in Finding of Fact 1. 18-19. Adopted in part in Finding of Fact 14, but rejected in part in Finding of Fact 17. Rejected as simply a statement of position and argument thereon. Rejected in Findings of Fact 14, 17 and otherwise not based on competent substantial evidence. Adopted in part in Findings of Fact 2, 8 but otherwise rejected as simply a statement of position and argument thereon. Rulings on Respondent's Proposed Findings of Fact: 1. Adopted in Finding of Fact 13. 2-3. Rejected as irrelevant and unnecessary in light of Findings of Fact 6, 7, 17. Adopted in Finding of Fact 14. Adopted in Finding of Fact 6. Adopted in Finding of Fact 14. Adopted in Finding of Fact 17. 8-12. Rejected as irrelevant, unnecessary and cumulative. 13. Adopted in part in Finding of Fact 14. 14. Adopted in Finding of Fact 1. 15. Adopted in Finding of Fact 2. 16. Adopted in Finding of Fact 3. 17. Adopted in Finding of Fact 4. 18. Adopted in Finding of Fact 5. 19. Adopted in Finding of Fact 6. 20. Adopted in Finding of Fact 7. 21. Adopted in Finding of Fact 8. 22. Adopted in Finding of Fact 9. 23. Adopted in Finding of Fact 10. 24. Adopted in Finding of Fact 11. 25. Adopted in Finding of Fact 12. Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 18. Rulings on Intervenor's Proposed Findings of Fact: 1-2. Rejected as a conclusion of law and otherwise unnecessary. 3. Adopted, as to the first sentence; in Finding of Fact 17, otherwise rejected as simply a statement of position. 4-5. Rejected as simply a statement of position. Adopted in Findings of Fact 1-12 with the exception of proposed finding 6(k) which the transcript does not reflect as part of the stipulation, but which is adopted in Findings of Fact 14, 15, 17. Adopted in Finding of Fact 13. 8-10. Adopted in Finding of Fact 14. Rejected as simply a summary of testimony. Rejected as simply a summary of testimony, and otherwise cumulative and unnecessary. Adopted in Finding of Fact 18. Adopted in Finding of Fact 14. Adopted in Finding of Fact 15. 16-18. Adopted in Finding of Fact 16. 19. Rejected as irrelevant and unnecessary. 20-21. Adopted in part in Finding of Fact 17, but otherwise rejected as cumulative. 22-26. Rejected as cumulative and unnecessary. COPIES FURNISHED: William E. Powers, Jr., Esquire Post Office Box 11240 Tallahassee, Florida 32302 David P. Gauldin Esquire Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee Florida 32301 Joseph A. O'Friel Esquire 100 Twiggs Street Tampa, Florida 33602 David Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee Florida 32301
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: All statements contained within the Petition have been found to be true and correct. The area encompassed by the proposed District is 30,637+- acres located within unincorporated areas of Glades and Hendry Counties, Florida (Exhibit 7). The external boundaries of the District are coterminous with the external boundaries of General Development Corporation's Port LaBelle development. Within these boundaries but excluded from the District are several out parcels that were never part of the original Villages of Port LaBelle development, as well as four Port LaBelle plat units where there are currently numerous property owners. The property within the District to be excluded from the community development district is described in Exhibit 10. General Development Corporation, a Delaware corporation authorized to do business in the State of Florida, is the major landowner within the proposed District (Exhibits 8 and 9A). Four other property owners owning seven parcels within the proposed District have joined in the Petition (Exhibit 9B). Installment lot contract purchasers within the areas to be included within the District who had not received a Property Offering Statement from GDC indicating the possibility of the formation of a special taxing district were separately notified by mail of the time and place of hearing and provided with information on the functions of the proposed District. Out of a total of 10,270 letters sent, only six lot purchasers made further inquiries, and those inquiries were not related to the formation of the District, but were related to property values. (Testimony of Lawrence W. Mobley. Affidavit of Mark Billson, Exhibits 19A and B.) The area of land within the proposed District is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developed as one functionally interrelated community. This finding is based in part on the fact that the area to be included within the proposed District contains approximately 30,637+- acres. Property within the proposed District includes "vested" areas and areas which have been and continue to be subject to Chapter 380, Florida Statutes, review and is planned to be developed as a functional, interrelated community with a variety of land uses, including commercial, institutional, residential, and recreational. The District is ultimately projected to include 49,646 dwelling units. The area encompassed by the proposed District was subject to a Master Application for Development Approval. The Master Land Use Plan depicting uses is shown in Exhibit 13A. Master Development Orders were issued by Glades and Hendry Counties in 1974, subject to further incremental review as detailed technical data became available (Exhibits 13A, B, C and D). In 1980, Development Orders were issued by Glades and Hendry Counties for Increment II (Exhibits 14A and B). Portions of the remaining property will be subject to further incremental review (Exhibit 15A). The area subject to further review contains approximately 13,690+- acres and includes residential villages and a town center as well as a variety of other land uses. The projected population for this area is 48,700 (Exhibit 15B). The proposed designation of the future general distribution, location and extent of public and private uses within the District is shown in Exhibit 15A. All mandatory elements of the local government comprehensive plans for both Glades and Hendry Counties have been adopted in compliance with the Local Government Comprehensive Planning Act of 1975 (Exhibits 17A, 17A1, 17B and 17B1) The proposed creation of the District is not inconsistent with applicable elements of the State Comprehensive Plan. The proposed District is not inconsistent with the applicable elements of the Glades and Hendry Counties Comprehensive Plans, as evidenced by the fact that the Planning Director for each county has indicated that the establishment of the District is not incompatible with applicable elements of the local government comprehensive plans (Petitioner's Exhibits 18A and 18B). The five persons proposed to be the initial members of the board of supervisors who shall serve in that office until replaced by elected members as provided by Section 190.006, Florida Statutes, are: C. C. Crump Senior Vice President General Development Corporation 1111 South Bayshore Drive Miami, --Florida -33131 (305) 350-1525 Arthur L. Harper, Jr. Vice President General Development Corporation 1111 South Bayshore Drive Miami, Florida 33131 (305) 350-1533 James E. Clark Assistant Vice President 1111 South Bayshore Drive Miami, Florida 33131 (305) 350-1531 Wayne L. Allen Vice President and General Counsel General Development Corporation 1111 South Bayshore Drive Miami, Florida 33131 (305) 350-1261 Lawrence W. Mobley Assistant Vice President General Development Corporation Highway 80 East Birchwood Boulevard LaBelle, Florida 33595 (813) 675-1712 The proposed name of the District is the Port LaBelle Community Development District. A map of the proposed District showing current major trunk water mains and sewer interceptors and outfalls have been provided in Exhibits 11A and B. No water distribution and collection systems are proposed to be constructed, operated or maintained by the District. Facilities are to be constructed by the District over a period of 40 years. The timetable for construction indicates that all facilities should be completed by the year 2020 (Petitioner's Exhibit 23). The total costs associated with the capital facilities to be constructed are estimated in good faith to be $5,433,000.00 (Exhibit 22). Glades County Resolution 80-9 (Exhibit 14A) and Hendry County Resolution 80-37 (Exhibit 14B) requested that the applicant, GDC, work together with each county to investigate the feasibility of establishing certain special taxing districts. As a result of these conditions, GDC filed a petition for establishing a community development district. The applicable local governments, the Board of County Commissioners of Glades and Hendry Counties have evidenced their support of Petitioner's request to have a District established by rule by passing Resolution 81-62, dated September 8, 1981, by Hendry County, and Resolution 81-17, dated September 14, 1981, by Glades County (Exhibits 20A and B, respectively). The District is the best available alternative for providing and delivering community services and facilities to the area to be serviced by the District. This finding is supported by the Resolutions of the Board of County Commissioners of Glades County and Hendry County acknowledging that neither county is presently in a position to provide any of the essential services required by a community of this size. The Community Development District will be able to provide reliable long-term maintenance of the services and facilities not otherwise provided by the counties or other appropriate units of local government (Exhibits 20A and B). The Barron Water Control District, a district established pursuant to Chapter 298, Florida Statutes, within the area of the proposed District, has also evidenced its support of Petitioner's request to establish a Community Development District by rule (Petitioner's Exhibit 21). The Community Development District will not be incompatible with the capacity and uses of existing local and regional community development services and facilities. The area that will be served by the District is amenable to separate district government. This finding is supported by the foregoing findings of fact which establish that the nature, location, and size of the proposed Port LaBelle Community Development District would make it amenable to separate district government. Members of the public testifying at hearing had no complaints that related to the specifics of the petition filed in this cause. Instead, their concerns related to the wisdom of the Legislature in enacting Chapter 190, Florida Statutes, in the first instance, and the witnesses' desires that the Act be repealed as soon as possible. These concerns are, of course, outside the scope of issues properly involved in this proceeding.
Recommendation Based upon the Findings of Fact and Conclusions of Law hereby submitted, the Hearing Officer recommends that the Florida Land and Water Adjudicatory Commission grant the Petition of General Development Corporation, and adopt a rule which will establish the Port LaBelle Community Development District. DONE AND ENTERED this 9th day of July, 1982, at Tallahassee, Florida. WILLIAM E. WILLIAMS 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 9th day of July, 1982. COPIES FURNISHED: Nancy H. Roen, Esquire General Development Corporation 1111 South Bayshore Drive Miami, Florida 33131 Ms. Miriam Schreiner Post Office Box 1288 LaBelle, Florida Mayor Joan Jefferson City of Stuart Stuart, Florida 33495 Robert Miller, Chairman Treasure Coast Regional Planning Council Post Office Box 2395 Stuart, Florida 33495 Honorable Bob Graham Governor, State of Florida The Capitol Tallahassee, Florida 32301 Honorable Jim Smith Attorney General State of Florida The Capitol Tallahassee, Florida 32301 Honorable Doyle Conner Commissioner of Agriculture State of Florida The Capitol Tallahassee, Florida 32301 Honorable Ralph D. Turlington Commissioner of Education State of Florida The Capitol Tallahassee, Florida 32301 Honorable George Firestone Secretary of State State of Florida The Capitol Tallahassee, Florida 32301 Honorable William Gunter State Treasurer and Insurance Commissioner The Capitol Tallahassee, Florida 32301 Honorable Gerald A. Lewis Comptroller, State of Florida The Capitol Tallahassee, Florida 32301 Mr. John T. Herndon Director of the Office of Planning and Budget Executive Office of the Governor The Capitol Tallahassee, Florida 32301
The Issue The issues to be determined in this appeal are whether the decision of the Board to approve Flexible Development Application FLD2019-01002 (Application) filed by Edgewater Valor cannot be sustained by substantial competent evidence before the Board, or that the decision of the Board departed from the essential requirements of law.
Findings Of Fact Edgewater Valor proposes to develop an 80-unit attached dwelling with 164 associated off-street parking spaces on 2.931 acres of property it owns. The property is located at 1026 Sunset Point Road and 1919 Edgewater Drive in Clearwater, Florida. The proposal consists of three buildings and a structured parking platform with a pool and deck on the west side of the parking platform. Sixty percent of the 164 parking spaces is garage parking, with the rest as exposed surface parking. Two of the buildings, both in the T district, are proposed at a height of 86 feet measured from base flood elevation. The third building, in the MDR district, is proposed at a height of 38 feet measured from base flood elevation. The buildings in the T district are set back 152 feet from the east property line. The building in the MDR district is set back 75 feet from the east property line. The proposal includes landscaping and setbacks that exceed the Board's requirements for approval. The Application requests Level Two approval of flexibility for a building height of 86 feet from base flood elevation in the T zoning district. A Level One approval allows a building height of up to 50 feet, and up to 100 feet as a Level Two approval. The Application also requests Level Two approval of flexibility for an attached dwelling use in the MDR zoning district. The attached dwelling has a building height of 38 feet from base flood elevation, where up to 40 feet is allowed as a Level Two approval and flexibility from lot width in the MDR zoning district. Edgewater Valor owns 2.437 acres of the property which is zoned T with an underlying Comprehensive Plan Future Land Use category of Resort Facilities High (RFH). The remaining 0.494 acres is zoned MDR with an underlying Comprehensive Plan Future Land Use category of Residential Medium (RM). The property to the north of the proposed development is zoned T and is currently developed as a Comfort Suites hotel. The property to the south is zoned Office (O), MDR, and Preservation (P). There is a vacant automobile service station adjacent to the proposed development to the southwest, and a multi-family development to the south across Sunset Point Road. The property to the east is zoned MDR and P with single-family detached dwellings and attached dwellings further east along Sunset Point Road. The property to the west is zoned Commercial (C) and P. EDNA's boundaries are Sunset Point Road north to Union Street, and Edgewater Drive east to Pinellas Trail. The neighborhood consists of 400 homes that are mostly single-family, single-story detached dwellings. The proposed development would be located in the southwest corner of the neighborhood at the intersection of Edgewater Drive and Sunnydale Drive. The Comfort Suites hotel is located directly across from the proposed development on the opposite corner of Sunnydale Drive and Edgewater Drive. Sunnydale Drive travels east away from Edgewater Drive and dead-ends as a cul-de-sac with mostly single- family detached dwellings.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, as well as the facts stipulated to in the Prehearing Stipulations, the following relevant facts are found: Babcock, a Weyerhauser Company, is the agent for Centennial Homes, Inc., another Weyerhauser Company, and is the current owner and/or seller of real property located on Rocky Point Island, an island Situated along the eastern shore of Tampa Bay. The Island is bisected by the Courtney Campbell Causeway (State Road 60), a major regional roadway which runs across Tampa Bay and links Pinellas and Hillsborough Counties. (Prehearing Statements of Fact) The City of Tampa (City) is a municipal corporation and is the local government having jurisdiction to render development orders for DRIs located within its municipal boundaries. The TBRPC is the regional planning council within whose jurisdiction the Rocky Point Office and Commercial Park is located. The Department of Community Affairs (DCA) is the state land planning agency having jurisdiction over the proposed Babcock project. (Prehearing Statements of Fact) The New York Yankees is a New York limited Partnership which owns and operates the Bay Harbour Inn, located on the south portion of Rocky Point Island directly across the Courtney Campbell Causeway from the proposed Rocky Point Office and Commercial Park. The Bay Harbour Inn is a 260-room motel, with a banquet room, meeting rooms, a restaurant and a cocktail lounge, and is Situated on the only true beachfront property in Tampa. (Prehearing Statements of Fact; testimony of Frederick Matthews, Tr. 1524-1547) Shriners Hospitals is a Colorado charitable corporation authorized to do business in Florida. Its international headquarters is located on the south portion of Rocky Point Island directly across the Courtney Campbell Causeway from the proposed Rocky Point Office and Commercial Park. Purchased in 1980, the six and a half acre site was selected by the Shriners for its high visibility and its convenient access. The Shriners headquarters average approximately fifty (50) visitors per day. The Shriners operate 22 hospitals which treat crippled and burned children without charge to the patients. It depends upon its members and visitors to assist in funding efforts. If the visibility and/or accessibility of its headquarters were impaired, its ability to raise funds to operate its childrens' hospitals would be adversely affected. (Prehearing Statements of Fact; testimony of Louis Molnar, Tr. 2424-2429) In 1973-74, Centennial purchased approximately 62 acres of land located on the north side of Rocky Point Island. Between 1977 and 1980, Centennial constructed road, water, sewer and drainage improvements and platted a subdivision of the property known as the Rocky Point Office and Commercial Park. Between December 1981 and November 1983, Babcock sold, at a substantial profit, four parcels within the Rocky Point Office and Commercial Park to separate individual developers. (Prehearing Statements of Fact; testimony of William Lopez, Tr. 101-104) In the spring of 1984, a dispute arose between Babcock and the Department of Community Affairs as to whether the Rocky Point Office and Commercial Park was required to undergo Development of Regional Impact (DRI) review pursuant to Section 380.06, Florida Statutes. In order to resolve this dispute, Babcock and the DCA entered into a Preliminary Development Agreement (PDA) pursuant to Section 380.032(3), Florida Statutes. Under that Agreement, the entire Rocky Point Office and Commercial Park was required to undergo DRI review. However, the four previously sold parcels were permitted to be developed and occupied prior to receipt of a final Development Order with, respectively, a 70,000 square foot office building, a 183,393 square foot office building with an associated 5,000 square foot restaurant, a 202 suite hotel and a 176 room hotel. The Agreement also required Babcock to pay to the DCA $50,000 to fund a study of growth management issues on Rocky Point Island. (Prehearing Statements of Fact; Babcock's Exhibit 8) Pursuant to the Preliminary Development Agreement, a DRI pre- application conference was held on April 7, 1984, and Babcock's Application for Development Approval (ADA) was filed on October 19, 1984. In its ADA, Babcock proposed a total of 1,375,393 square feet of office uses, 378 rooms of hotel or motel use and 17,000 square feet of restaurant development in two phases. Phase I consisted of the 253,393 square feet of office uses, the 378-rooms of hotel use and 5,000 square feet of restaurant use permitted by the ADA to proceed prior to receipt of a final Development Order for the overall DRI. Phase II consisted of the balance of the proposed DRI: 1,122,000 square feet of office space and 12,000 square feet of restaurant uses. (Prehearing Statements of Fact; Babcock's Exhibits 1-3) Babcock furnished additional information to the TBRPC in November and December of 1984. From December 1984 to March 1985, the TBRPC, in conjunction with the DCA and the City, proceeded with plans to conduct a short-term traffic study of the immediate Rocky Point Drive/Courtney Campbell Causeway Intersection. Also, the Preliminary Development Agreement with the DCA was amended to require payment of the $50,000 to TBRPC instead of the DCA. These funds were subsequently paid to TBRPC by Babcock. (Prehearing Statement of Facts; Babcock's Exhibit 9) On or about March 12, 1985, the TBRPC determined the ADA was sufficient and so notified the City of Tampa. The City Council set a public hearing for May 23, 1985 to consider Babcock's ADA. In April, 1985, the short-term study was completed. The purpose of that study was to (1) determine the maximum at-grade roadway improvements which could be made to the Intersection and (2) determine the level of development which could be accommodated thereby. The conclusion of the short-term study was that, with the maximum amount of at-grade improvements (three through lanes in each direction), the intersection would operate at Level of Service (LOS) "E" in the morning peak hour in the year 1990 with existing and approved development. The afternoon peak hour would operate at LOS "D". Therefore, it was concluded that there was no capacity for any additional development on Rocky Point Island north or south of Courtney Campbell Causeway using the Rocky Point Drive intersection. (Prehearing Statements of Fact; Babcock's Exhibit 37) On May 13, 1985, the TBRPC submitted its regional report and recommendation. The TBRPC recommended denial, but set forth conditions which, if satisfied, would result in a recommendation of approval. The Council's prime concern was the adverse impact of the proposed project upon the transportation network and regional facilities in the area, and mitigation of those impacts. The Council determined that "The addition of a project of this magnitude to an already overburdened infrastructure raises serious questions regarding land use and public facility decisions for this area of the region." The TBRPC concluded that the Babcock DRI would have a substantial negative impact upon several regionally significant highway facilities. While the council did identify some positive impacts from the proposed project (such as increased employment opportunities and increased ad valorem tax yields), the positive impacts were not site-specific to Rocky Point Island. (Babcock's Exhibit 13, TBRPC's Exhibit 52B, page 8) The TBRPC also proceeded with a longer term traffic study of the Courtney Campbell Causeway corridor area. The long-term study's stated purpose was to determine whether the traffic to be generated by the overall proposed development on Rocky Point Island, including Babcock's DRI, could be accommodated on the Causeway corridor given reasonable levels of road improvements. (Prehearing Statements of Fact) Except as to conditions relating to transportation, levels of development, and development phasing, Babcock and City Staff were in substantial agreement by May 23, 1985, on the terms and conditions of a recommended development order approving with conditions Babcock's ADA. At the public hearing on May 23, 1985, the City Council voted to defer consideration of the ADA in order to allow additional time to address and resolve various traffic related issues and to formulate conditions relating to mitigation of the project's transportation impacts. From that point forward, proceedings before the City were protracted, and public hearings were continued on numerous occasions. (Prehearing Statements of Fact) The long-term study was completed in December of 1985, and was formally released on February 20, 1986. The study concluded that a reduced amount of development on Rocky Point Island could be accommodated with a reasonable level of improvements, including an overpass at the intersection of Rocky Point Drive and Courtney Campbell Causeway. The study further concluded that an alternative development scenario would allow over twice the existing and approved development. (Prehearing Statements of Fact) Review and comment regarding the long-term study as well as negotiations regarding Development Order conditions resulted in further continuances of the public hearing on the Babcock ADA. On September 25, 1986, City Council approved on first reading a proposed ordinance issuing a Development Order approving Babcock's ADA. (Babcock's Exhibit 6) The City Council also directed that a further traffic study be conducted regarding Rocky Point Island. On October 23, 1986, the City Council heard objections to the issuance of the Development Order from surrounding property owners, including the New York Yankees and the Shriners. The matter was then continued until December 18, 1986, over Babcock's objections to further continuances. On December 18, 1986, the City Council again continued the matter to April 9, 1987, despite Babcock's objection to further continuances. (Prehearing Statements of Fact) On December 31, 1986, Babcock filed a Complaint for Mandamus seeking to compel the City of Tampa to render a Development Order. The Circuit Court issued a Final Peremptory Writ of Mandamus on February 16, 1987, commanding the City Council to adopt an ordinance issuing a Development Order. (Prehearing Statements of Fact) On February 26, 1987, the City Council adopted emergency Ordinance No. 9544-A constituting a DRI Development Order which approved with conditions Phase I, and denied with conditions Phase II of the Rocky Point Office and Commercial Park DRI. The approval of Phase I (consisting of the development previously approved by the Preliminary Development Agreement) was conditioned upon payment to the City of $582,566.09, based on the City's transportation impact fee then in effect. Denial of Phase II was based upon the City's finding that the development would cause the intersection of Rocky Point Drive and Courtney Campbell Causeway to operate below a level of service (LOS) "D" peak, and that the feasibility of traffic improvements and Babcock's fair share of the costs thereof' to mitigate traffic impacts and maintain LOS "D" peak hour had not been fully determined. Before Phase II could be approved, the Development Order required Babcock to institute worker flex time conditions and to show the feasibility of, and funding commitments for, the roadway improvements necessary to maintain LOS "D" peak hour on the Causeway for project build-out. Further, Babcock would be required to pay, in advance of further building permits, a proportionate share contribution calculated under Rule 9J-2.0255, Florida Administrative Code, or City of Tampa Transportation Impact Fees, whichever was greater. Needed improvements caused by both the approved Phase I development and the denied Phase II development were listed. (Babcock's Exhibit 7) Babcock's proposed development is consistent with the zoning which existed on the property prior to Centennial's acquisition of the property and at the time the ADA was filed. It is also consistent with existing development on the Island. However, on December 17, 1987, during the pendency of these proceedings, the City Council rezoned the undeveloped portions of Babcock's property from C-1 and C-2 (general commercial) to RM-24 and RS-60 (residential, multi- and single-family). (TBRPC's Exhibit 51 and 51-A) The new zoning would not allow the development proposed by Babcock. Courtney Campbell Causeway is a regionally significant roadway because it serves as one of only four links between Pinellas and Hillsborough Counties and is the only direct link between the Cities of Tampa and Clearwater. There is no reason to believe that the Causeway will not remain a significant regional roadway in the future. (Tipton, Tr. 2475) The traffic impacts of the proposed Babcock DRI take place in a unique setting. The entire development will be served by a single intersection located at Rocky Point Drive, which runs north and south, and Courtney Campbell Causeway, which runs east and west. There is no alternative route for people who would work on or visit the Island, other than the Causeway. Thus, Rocky Point Island is unique from a traffic planning perspective because of its location on a major regional link and its single point limited access onto said link. (Chapman, Tr. 2090 and 2185; Tipton, Tr. 2473) DRI review is site-specific and location is a critical factor. In reviewing the traffic impacts of a proposed DRI, the applicant identifies the regionally significant roadways which it projects will operate below Level of Service (LOS) "D" peak hour upon buildout of its project and upon which its project contributes a certain percentage or more of the LOS "D" peak hour capacity. The DCA requires an applicant to identify those regional roadways on which its traffic contributes ten percent (10%) or more of the LOS "D" peak hour capacity, while the TBRPC's requirement is five percent (5%). The applicant then identifies the roadway improvements needed to return the roadway to LOS "D" peak hour. (Beck, Tr. 1495; Benz, Tr. 2356) Developers need not identify roadways `which will operate at LOS "D" or better at the time of buildout, nor are they required to mitigate for the capacity which they are absorbing at locations which will be functioning at acceptable levels. (Benz, Tr. 2375) In other words, no commitment for roadway improvements is required so long as the LOS would not deteriorate below "D" during the peak hour. The DCA has three options for mitigation of traffic impacts which, if included in a Development Order, will preclude DCA appeal. The DCA's Transportation Rule, Rule 9J-2.0255, Florida Administrative Code, contains the three mitigation options. The first option is staging, the second is pipelining and the third is a creative option which provides for flexibility in situations such as an areawide DRI with mass transit. (Beck, Tr. 1498) These options are considered minimum criteria, and the local government and regional planning council may require more stringent measures than those found in the DCA's Rule in order to address traffic impacts. According to the DCA's interpretation of Chapter 380, Florida Statutes, payment of a local impact fee by a DRI developer would not necessarily make adequate provision for the transportation impacts of a DRI. (Beck, Tr. 1406-07) It is the position of the DCA that the Legislature intended to hold DRI developers to more stringent standards than non-DRI developers. (Beck, Tr. 1432) The TBRPC would offer three options, plus a creative option, to local government for mitigation of traffic impacts. The first option requires funding commitments from either the developer, the Department of Transportation, or any other source, for all roadway improvements identified. Such commitments must be in place prior to each phase of the development's approval. The second option is a phasing or staging approach whereby the developer proceeds on a piecemeal basis, obtaining funding commitments for smaller segments of the project. The funding commitments must be viable at the time of approval. The third option is known as the "pipelining" option which does not require that funding commitments for all roadway improvements be in place prior to development. Under this option, the developer is permitted to construct or fund the construction of one or more of the necessary improvements needed to maintain LOS "D." The developer's fair share contribution of the cost of all improvements is calculated, and that contribution is directed to one or more of the necessary improvements. The pipelining option is a tradeoff approach whereby the developer contributes his proportionate share and actually constructs or funds one or more regionally significant projects, and his impacts at other locations identified during the regional review are forgiven in exchange for construction of the pipeline improvement. The pipelining policy is to encourage early construction of immediate major improvement to a regional roadway in exchange for forgiveness of impacts at other locations. The pipelining option was not available at the time the TBRPC issued its report on the Babcock ADA, but was available at the time the City of Tampa issued its Development Order. (Benz, Tr. 2355- 2375; TBRPC's Exhibits 23 and 24) The Florida Department of Transportation has jurisdiction over improvements to be constructed on the Courtney Campbell Causeway. The City of Tampa has an urban area Metropolitan Planning Organization (MPO) long-range transportation plan which analyses the transportation demand estimates for the horizon year 2010. It is the policy of the TBRPC to encourage local governments to approve the pipelining option for roadway improvements which are consistent with the MPO and the Department of Transportation's long-range plans. (TBRPC's Exhibit 24, Policy 19.8.14) A grade separated interchange at Rocky Point Drive and Courtney Campbell Causeway does not appear on the MPO long-range plan or the work plan of the Florida Department of Transportation. (Adair, Tr. 2274) The notion of concurrency is a common ingredient in each of the options for mitigation of transportation or traffic impacts. Concurrency means that the developer cannot build until the public improvements are either physically in place or there is a funding commitment from some source (not necessarily the developer) to put them in place. (Benz, Tr. 2388) A DRI developer does not have to pay money for its impacts. It may phase its development so that it is accommodated by the infrastructure in place, those improvements which are programmed to be put in place over time, or until the improvements are committed to by some other development. It is only when the DRI's impacts exceed existing capacity that the developer must identify and provide for the improvement. (Benz, Tr. 2355-57; Beck, Tr. 1492) One of the purposes of the Land Use Element of the Tampa Comprehensive Plan 2000 is to coordinate the orderly provision of public facilities (which include transportation facilities) with public and private development activities in a manner that is compatible with the City's fiscal resources. (City's Exhibit 17, page 3, paragraph 3.3) New development or increased intensity is to be permitted only in areas where adequate public facilities exist or can be adequately provided. (City's Exhibit 17, page 18, paragraph 1.2.3) Likewise, commercial and office development is to be permitted at an intensity and a location which complements existing and planned land use and existing and programmed public facilities. (City's Exhibit 17, page 24, paragraph 1.4.1.2; Mikalik, Tr. 1976, 1981, 1982) Prior to September 12, 1986, the City of Tampa had no transportation impact fee. The City's first impact fee was adopted on September 12, 1986, and it imposed upon all developers a non-site specific flat fee per square foot or per hotel/motel room. The fees imposed were conservative and were not sufficient to pay for the costs of transportation improvements necessary to accommodate new development paying the fee. (Tindale, Tr. 660-667) The impact fee ordinance was amended in 1988. The City was divided into transportation districts, and a different level of fees for each district was established. The transportation impact fees for the Westshore District, which encompassess Babcock's property, were increased. (Babcock's Exhibit 129) Transportation impact fees generally attempt to measure the value of the entire system consumed by a particular development. An impact fee calculation does not deal with existing conditions. In contrast, the requirement that a DRI developer make "adequate provision" has a different focus. This requirement focuses on the geographic location of the DRI, and measures the effect of the DRI on the public facilities at that location, both present and projected into the future. If certain regulatory levels are exceeded, the developer has several mitigation options to make "adequate provision" concurrently with the impact. Thus, while impact fees look at development in terms of the average value or capacity available to be consumed, the DRI regulatory process views impacts in terms of a performance standard not to be exceeded at a specific geographic location. (Tindale, Tr. 2233-43, 2253- 62) According to transportation experts, the transportation impacts of a proposed new development can be estimated through the use of the Highway Capacity Manual and the Institute of Traffic Engineers (ITE) Manual, the latter of which predicts the number of "trips" that a certain amount and type of development will generate. Through further calculations, these trips form the basis for conclusions as to the Level of Service (LOS) at which a roadway will operate. The LOS range from "A" (the best) through "F" (the worst). As noted above, the TBRPC considers LOS "D" peak hour the lowest acceptable level of service. (Chapman, Tr. 322-41; Wright, Tr. 457-74; Tipton, Tr. 2456-60) Several studies have shown that trip generation rates in the City of Tampa and throughout Florida are typically higher than the national average rates projected by the ITE Manuals. (Tindale, Tr. 646, 704, 820; Adair, Tr. 2275-76; Chapman, Tr. 2120). This may be due to factors such as climate, suburban characteristics and lack of mass transit. (Adair, Tr. 2275-79) Thus, trip rate projections for new developments within Tampa based upon the ITE Manuals would be on the conservative side. At the time Babcock filed its Application for Development Approval in 1984, the intersection of Rocky Point Drive and Courtney Campbell Causeway was operating at LOS "B" in both the a.m. and p.m. peak hours. (Babcock's Exhibit 3, page 31-16) The short-term study completed in April of 1985 concluded that, assuming maximum at-grade improvements, the intersection at Rocky Point Drive and the Causeway would operate at LOS "E" in the morning peak hours in the year 1990 with existing and approved development. Therefore, the study concluded there was no further capacity for additional development on Rocky Point Island north or south of the Causeway. (Babcock's Exhibit 37) Without additional development above the Preliminary Development Approval (or Phase I), the 1985 Highway Capacity Manual projects that with the current Department of Transportation improvements, the at-grade intersection will operate at LOS "D" or better in both the a.m. and p.m. peak hours in 1992. With full buildout of the Babcock proposal and current Department of Transportation improvements, the 1992 LOS at the intersection would be at or below LOS "E" in both the a.m. and p.m. peak hours. (Wright, Tr. 1729-30) As noted above, the long-term study issued in February of 1986 concluded that over twice the amount of existing and approved development could be accommodated by an overpass at the intersection of Rocky Point Drive and the Causeway. The congested conditions which currently exist on the Courtney Campbell Causeway in the vicinity of the Rocky Point Drive intersection occur primarily one-way in the peak hours. In the morning peak hours, the Causeway is congested in the direction moving from the west to the east -- from Pinellas to Hillsborough County. Conversely, in the afternoon peak hours, the heaviest traffic flows from east to west. Thus, there is some excess capacity in the a.m. and p.m. peak hour direction opposite the prevailing flow of traffic and little or no excess capacity in the direction of the prevailing flow of traffic. (Wright, Tr. 522-23; Patterson, Tr. 1383) While the greatest negative impact on the intersection in the a.m. peak hours is westbound traffic from Tampa turning left to reach South Rocky Point Island, it is the conflicting through traffic movement which creates the total congested condition. In other words, there is no one critical movement. It takes two directional movements in conflict to create the negative impact. (Padmanabahn, Tr. 849-50; Hall, Tr. 864, 909) With additional development on the Babcock parcel, the intersection at Rocky Point Drive and Courtney Campbell Causeway will degrade to a LOS below "D" in the a.m. peak hours sometime between the years 1990 and 1992. In order to accommodate the traffic impacts of its proposed additional development, Babcock proposes a grade separated interchange which would separate the conflicting turning movements from through traffic and improve the movement of traffic on the Causeway. Babcock's experts testified that with full buildout of the proposed development, the overall operating condition of such an interchange would be LOS "C" during the a.m. and p.m. peak hours in 1992. (Wright, Tr. 528) While it is technically feasible from an engineering standpoint to design an interchange for the Rocky Point Drive intersection, Babcock failed to demonstrate that the preliminary conceptual design it proposes is feasible. Babcock's witness on the subject was unfamiliar with certain aspects of the design and drawing of the proposed interchange. (Chinery, Tr. 934-40, 945-48) The vehicle mix was not considered in designing the overpass. It is important to know the mix of heavy vehicles because it affects the length of the ramps. (Chinery, Tr. 1011-14) While Babcock's engineers utilized a "weave analysis" in designing the overpass, there was credible evidence presented that the proper analysis for this particular design is a "ramp analysis." If a ramp analysis is performed, the ramp would operate at a LOS "E," as would the Causeway itself. (Chapman, Tr 2156, 2676-79) Although the Department of Transportation requires a 20-year design life for an interchange, Babcock's proposed interchange was not designed for any particular design life. (Chinery, Tr. 1042-43) Also, it was not established whether the proposed interchange would fit within the Department of Transportation's right-of-way on Rocky Point Drive. (Chinery, Tr. 1010-11) Babcock estimated the cost of the proposed interchange to be $9.5 million, plus or minus 25%. However, Babcock's cost witness did not prepare the estimate himself, did not verify the quantities of materials to be utilized in construction and did not include many costs that would be associated with the proposed interchange. For example, the estimated costs do not include right-of- way costs, design or engineering costs, costs associated with the environmental effects of additional dredging, filling and bulkheading activities, or possible business damages for any existing property owners in the Rocky Point area who might lose access to the Causeway. (Tocknell, Tr. 1832-67) It also appears that the cost estimate of $9.5 million was based upon a conceptual drawing different than the drawing submitted at the hearing. (Tocknell, Tr. 1859) Babcock's Exhibit 128, prepared in May of 1986, indicates that the recommended standard value for interchanges is $7 million. The Ulmerton-U.S. 19 urban interchange located in Pinellas County, which is similar to the proposed interchange, cost $19 million-plus in construction costs, which figure did not include right-of-way costs. (Tocknell, Tr. 1912-13) Babcock has not offered to fund or construct the proposed interchange at Rocky Point Drive. There was no evidence offered to determine whether a proportionate share contribution by Babcock would fund the proposed grade separated interchange. There was no competent evidence presented that a grade separation is currently scheduled for construction. It was generally agreed that the existence of a properly designed overpass or interchange at the Rocky Point Drive/Courtney Campbell Causeway intersection would accommodate additional development on Rocky Point Island. However, the extent or amount of such additional development was not established. Babcock's expert presented evidence that the overall operating condition of the intersection with its proposed interchange would be LOS "C" during the a.m. and p.m. peak hours in 1992 with full buildout of its proposed DRI, plus an additional 300,000 square feet of office development. (Wright, Tr. 528) LOS "C" is characterized as the absence of congestion. However, the analysis performed and assumptions made in reaching this conclusion were faulty in many respects. Babcock utilized the ITE Manual, 4th Edition, for its trip generation projections. The 4th Edition projects less traffic per square foot of commercial office development than had been projected under the 3rd Edition that was in use until December of 1987. As indicated above, in Florida, and specifically in Tampa, actual trip generation figures from established developments demonstrate that even the 3rd Edition ITE Manual under-projects traffic impacts. (Tindale, Tr. 646; Adair, Tr. 2275-77; Chapman, Tr. 2120) Babcock's use of a zero percent background growth rate is incorrect based upon the historic growth rate for Courtney Campbell Causeway (Wright, Tr. 461), other studies of the Causeway and Rocky Point Island, and the likelihood that, with further development on the Island, cars will travel back and forth between North and South Rocky Point Islands. (Patterson, Tr. 270; Chapman, Tr. 2116; Wright, Tr. 1707) A fifteen and twenty percent flex time reduction of trips for all office uses is erroneous because the ITE trip generation rates already account for any flex time which may be occurring (Tipton, Tr. 2465-66) and the ITE Manual does not authorize reduction of trips for flex time. (Wright, Tr. 1743) The internal capture rates and directional traffic split utilized by Babcock were not supported by competent substantial evidence. Babcock's failure to take into account heavy vehicles on Rocky Point Drive is inappropriate since the Island is served by public transportation, and City bus stops are located on the Island. (City's Exhibit 2A; Hale, Tr. 1597) Babcock's analysis which concluded that with current Department of Transportation improvements, the at-grade intersection could accommodate an additional 300,000 square feet of office use (Wright, Tr. 1808) utilized many of the same faulty assumptions as discussed above. Accordingly, it too, is not supported by competent substantial evidence. If Babcock were to buildout with the at-grade intersection, the automobile carbon monoxide emissions would exceed the Department of Environmental Regulation's (DER) guidelines and standards for air quality. (Hale, Tr. 1625) Babcock presented evidence that if the proposed grade separation (the interchange) were in place, carbon monoxide concentrations would not exceed ambient air quality standards for this pollutant. This conclusion is suspect for several reasons. The air quality analysis conducted on Babcock's behalf deviated from the DER's guidelines in several respects. (Kenney, Tr. 1082-83; Hale, 1556) Although parking garages are located in the vicinity, they were not considered in the analysis. (Kenney, Tr. 1136; Hale, Tr. 1593-94, 1630) Use of the intersection by heavy duty vehicles, which emit far more particulate matter than most motor vehicles, was not considered. (Kenney, Tr. 1062-63, 1140) The assumption of traffic traveling unimpeded through the intersection at 35 miles per hour was not substantiated. (Kenney, Tr. 1118-27) Some receptors were not located in accordance with the DER guidelines. (Kenney, Tr. 1195-96; Hale, Tr. 1582, 1627- 29) All these factors affect Babcock's air quality analysis. Thus, while there is little doubt that a grade-separated interchange which permits the free flow of traffic would improve air quality at the subject intersection, it cannot be concluded that full buildout of the proposed DRI would comply with Florida's ambient air quality standards. Traffic congestion causes user delay costs to the motoring public. If Babcock were to buildout at-grade, the increased delay costs to motorists would be $1,525 per hour or $1,549,400 per year. (City's Exhibit 12; Garity, Tr. 2056-57; Chapman, Tr. 2083) If an interchange were substituted for the existing at-grade condition, and assuming the interchange functioned properly, there would be a savings to the motoring public of approximately one million dollars per year. (Wright, Tr. 2574) The grade-separated interchange proposed by Babcock will affect the property rights of nearby landowners. The interchange would allow entrance to the Bay Harbour Inn from the Causeway only from the west, and would allow no means for exiting the facility at all. A similar situation would exist for the Rocky Point Beach Resort Hotel. Since the Bay Harbour Inn has no access to Rocky Point Drive, the only means of providing that access would be through property owned by the Shriners. This would require condemnation of the Shriners' property and the construction of a driveway from Rocky Point Drive to the Bay Harbour Inn either over a large retention pond or through the existing Shriners parking lot. This, of course, would create a substantial hardship upon any further development of the Shriners' 6-acre parcel. Even if Bay Harbour Inn were permitted a driveway onto Courtney Campbell Causeway after construction of the overpass, it would not be a commercially viable access. (Tipton, Tr. 2468- 70; Chapman, Tr. 2110-13; Matthews, Tr. 1540-42; Molnar, Tr. 2427) Not only would the proposed interchange require use of the Shriners' property in order to provide access to the Bay Harbour Inn, the interchange would diminish the ability of the Shriners to continue performing its charitable activities at its international headquarters. Reduced visibility would adversely affect the Shriners' ability to raise funds to operate its children's hospitals. The overpass would require the construction of a retaining wall which, at its highest point, is about 25 feet high. (Chinery, Tr. 1033) This would virtually obliterate the visibility of the Shriners' property from Courtney Campbell Causeway. (Chinery, Tr. 1041; Molnar, Tr. 2424-27) As noted above, DRI review is site-specific and location is a critical factor in reviewing a DRI's potential impacts, both positive and negative. (Beck, Tr. 1414) For this reason, other Development Orders entered by the City of Tampa which may contain different conditions for approval do not establish that the City or the TBRPC has acted arbitrarily with regard to the Babcock DRI. For example, the Areawide Westshore DRI does not include Rocky Point Island. As an areawide DRI, it is regulated by Section 380.06(25), Florida Statutes, and the two developments are not comparable. (Babcock's Exhibits 85 and 95) Point Properties, Ltd. is a non-DRI development which is located on North Rocky Point Island on an out-parcel which has direct access to Courtney Campbell Causeway and Rocky Point Drive. (Hall, Tr. 2669) The City's action upon Point Properties' application for a zoning change (while perhaps relevant to the City's action in rezoning Babcock's undeveloped property) cannot be compared with the City's action concerning Babcock's DRI application. The City of Tampa denied the Lifsey DRI for North and South Rocky Point Islands with essentially the same conditions and language as contained in the Babcock Development Order. (Stipulation, Tr. 1523-24) While not included in the City's Development Order as a change which would make Babcock's proposal eligible to receive approval, evidence was presented at the hearing that City staff would recommend approval of a multi- family residential proposal for the Babcock property on Rocky Point Island. (Mihalik, Tr. 1994) Other developments in Tampa have mixed office uses with residential and retail uses. (Mihalik, Tr. 1992-93) The opinion was offered by City staff that multi-family use would reduce overall trip generation and change the direction and timing of peak hour trips. (Hall, Tr. 878, 896, 905-910; Mihalik, Tr. 1992-94) While it would seem logical that the p.m. peak hour traffic would be less with residential as opposed to office development, the opinion as to a.m. peak hour traffic was not substantiated by sufficient evidence. Indeed, there was evidence indicating that traffic exiting a multi- family development on North Rocky Point Island in the morning hours could aggravate the a.m. peak hour conditions due to conflicts with eastbound through traffic. (Hall, Tr. 877-82) In any event, Babcock did not request development approval for a residential development and sufficient analyses and studies were not presented to enable a conclusion that residential development on Babcock's property would comport with all applicable review standards and criteria.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the Florida Land and Water Adjudicatory Commission DENY Phase II of Babcock's application for development approval, and otherwise approve the Development Order entered by the City of Tampa. Respectfully submitted and entered this 2nd day of February, 1989, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of February, 1989. APPENDIX The proposed findings of fact submitted by the Parties have been accepted and/or incorporated in this Recommended Order except as noted below: Babcock 50. Rejected - contrary to the evidence. 59. Accepted as supported by some evidence, but not included as irrelevant to the issues in dispute. 64. Rejected as to grade-separated interchanges - not supported by competent substantial evidence. 66. Not totally accepted - unsupported by competent substantial evidence. 67 - 68. Accepted only if identical locations are assumed. 71. Second and third sentences rejected. See Finding of Fact 32. 75 - 76. Accepted as factually correct, but the materiality of other developments is - discussed in Conclusions of Law. 78 - 79. Partially rejected. It was determined that the issue of traffic impacts sufficiently embraces the issue of air pollution from carbon monoxide emissions. Last sentence rejected - not supported by competent substantial evidence. Rejected - irrelevant and immaterial to the issues in dispute. 85. First sentence rejected - not supported by competent substantial evidence and irrelevant. 89. Rejected - not supported by competent substantial evidence. 102. Rejected - not supported by competent substantial evidence. 104, 105 & 107. Rejected - not supported by competent substantial evidence. 108. Second and third sentences rejected - not supported by competent substantial evidence. 109 - 110. Rejected - contrary to the greater weight of the evidence and not supported by competent substantial evidence. 112. Rejected - improper factual finding, contrary to the burden of proof in this proceeding and not supported by competent substantial evidence. 113 & 115. Rejected - not supported by competent substantial evidence. 116. Third sentence rejected - not supported by competent substantial evidence. City of Tampa 26. All but first sentence rejected - irrelevant and immaterial to the issues in dispute. 29. Rejected as irrelevant and immaterial. 42. First part of first sentence rejected as overbroad. 53. The words "no weight" rejected and replaced with "deduced weight." 68. Degree of weight to be accorded rejected. 80. The words "any evidence" should be replaced with "competent substantial" evidence. 100. Last sentence rejected - speculative and not supported by competent substantial evidence. TBRPC 39. Rejected - irrelevant and immaterial. 80. Rejected - irrelevant and immaterial. 107 & 110. The words "intentionally" rejected as not supported by competent substantial evidence. New York Yankees 18. Last sentence rejected as unsupported by competent substantial evidence. Third from last and last sentence rejected - not supported by competent substantial evidence. Last sentence rejected - legal conclusions as opposed to factual finding. 25. Second sentence rejected as an overstatement. Shriners 19. Second sentence rejected as not supported by competent substantial evidence. COPIES FURNISHED: Eugene D. Sterns, Esquire David Smolker, Esquire Mark D. Solov, Esquire Sterns, Weaver, Miller, Weissler, Alhadeff & Sitterson, P.A. One Tampa City Center Suite 3300 Tampa, FL 33602 Douglas M. Wyckoff, Esquire de la Parte, Gilbert & Gramovot, P.A. 705 East Kennedy Blvd. Tampa, FL 33602 Linda M. Hallas, Esquire Law Offices of Roger S. Tucker 9455 Koger Blvd., Suite 209 St. Petersburg, FL 33702 Jeffrey N. Steinsnyder, Esq. Office of General Counsel State of Florida, Department of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100 G. Steven Pfeiffer, Esquire Fowler, White, Gillen, Boggs, Villareal & Banker, P.A. 101 North Monroe Street Suite 1040 Tallahassee, FL 32301 Jann Johnson, Esquire Ausley, McMullen, McGehee, Carothers & Proctor 227 South Calhoun Street Post Office Box 391 Tallahassee, FL 32302 The Honorable Bob Martinez Governor, State of Florida The Capitol Tallahassee, Florida 32399 The Honorable Robert A. Butterworth Attorney General State of Florida The Capitol Tallahassee, Florida 32399-1050 The Honorable Doyle Conner Commissioner of Agriculture State of Florida The Capitol Tallahassee, Florida 32399-0810 The Honorable Betty Castor Commissioner of Education State of Florida The Capitol Tallahassee, Florida 32399-0250 The Honorable Jim Smith Secretary of State State of Florida The Capitol Tallahassee, Florida 32399-0250 The Honorable Tom Gallagher Treasurer and Insurance Commissioner State of Florida The Capitol Tallahassee, Florida 32399-0300 The Honorable Gerald A. Lewis Comptroller State of Florida The Capitol Tallahassee, Florida 32399-0250 Patty Woodworth, Director Florida Land and Water Adjudicatory Commission Executive Office of the Governor The Capitol - PL-05 Tallahassee, Florida 32399-0001
