The Issue The issue in this case is whether Respondent's intended decision to award a contract, challenged by Petitioner, is contrary to Respondent's governing statutes, rules, policies, or the proposal specifications.
Findings Of Fact Admitted Facts Per Joint Pre-Hearing Stipulation The Department advertised for proposals and bids for the Project under procurement contract number E5R63. Commercial was a bidder on the Department's contract E5R63 for the Project. Commercial reviewed the Department's advertisement for proposals and bids for the Project. The Project consists of replacing the existing Daytona Avenue Bridge (Bridge No.: 795502). The Project was advertised as a low bid design-build Project. Commercial did not file a challenge to the specifications for the Project. The advertisement for the Project included pre- qualification requirements for design professionals and pre- qualification work class requirements for the contractor. The advertisement for the Project included requirements for design professional services 8.1 and 8.2, Florida Administrative Code Rule Chapter 14-75.5/ The bids and technical proposals for the Project were due at the Department's District 5 offices by no later than 2:30 p.m., on June 18, 2012. Commercial submitted a technical proposal for the Project in response to the advertisement for procurement E5R63. Commercial submitted a bid price for procurement E5R63. The technical proposal submitted by Commercial for procurement E5R63 did not contain a firm or individual pre-qualified by the Department to perform work types 8.1 and 8.2. District 5 representatives contacted Commercial and sought to clarify who had been identified in Commercial's technical proposal to meet the pre-qualification requirements for work types 8.1 and 8.2. Andrus Gaudet was identified in response to the inquiry regarding who would satisfy work type 8.1 and 8.2 pre- qualification requirements. As of June 18, 2012, Andrus Gaudet had not been pre- qualified by the Department in work types 8.1 and 8.2 under rule chapter 14-75. The Department determined that Commercial was non- responsive based on its failure to include a firm or an individual possessing the pre-qualification requirements in work types 8.1 and 8.2 as advertised in the procurement solicitation. The advertisement states on page one that "all qualification requirements must be met prior to the Response Deadline." The Department sent a letter to Commercial that informs all responding firms that in order to be considered for the award, the team must be pre-qualified in the areas in the advertisement. Commercial could not be considered for award of this contract since it did not comply with the pre-qualification requirements. Additional Findings of Fact The Department's advertisement summarized the key terms for the Project, which included the following: NOT TO EXCEED BUDGET AMOUNT OR MAXIMUM BUDGET AMOUNT OR BUDGET AMOUNT*: $798,000 * Actual commitment and final execution of this contract is contingent upon an approved legislative budget and availability of funds ESTIMATED CONTRACT TIME: 300 Contract Days SELECTION PROCEDURE: Low Bid Design-Build RESPONSE REQUESTED: Fax Order Form STIPEND AMOUNT: No Stipend PREQUALIFICATION REQUIREMENTS: CONTRACTOR-WORK CLASS REQUIREMENTS Minor Bridges DESIGN-PROFESSIONAL SERVICES WORK TYPE REQUIREMENTS Major: 4.1.2-Minor Bridge Design Minor: 3.1--Minor Highway Design 4.1.1--Miscellaneous Structure 7.1--Signing, Pavement Marking and Channelization 8.1--Control Surveying 8.2--Design, Right of Way, and Construction Surveying 9.1--Soil Exploration 9.2--Geotechnical Classification Lab Testing 9.3--Highway Materials Testing 9.4.1--Standard Foundation Studies TECHNICAL QUESTIONS SHOULD BE ADDRESSED TO: http://www2.dot.state.fl.us/construction/bid questionmain.asp. The selection procedure for a low bid design-build project is that the Department's technical review committee starts with the lowest price bidder and reviews that bidder's technical proposal to determine if it meets the technical requirements or if it is non-responsive. If the lowest bidder's technical proposal is deemed non-responsive, the technical review committee proceeds to review the technical proposal of the next lowest bidder. The technical proposals of other bidders are not reviewed at all for responsiveness unless and until the committee deems the lowest bidder's proposal non-responsive. The technical review committee prepares its recommendations as to the responsiveness of the proposals reviewed and identifies which bidder, if any, should be deemed the lowest responsive bidder. The technical review committee recommendations are then submitted to the selection committee, which makes the final decision that is posted as the Department's intended decision. Commercial submitted the lowest bid for the Project in the amount of $780,000. Therefore, the technical review committee began with a review of Commercial's technical proposal. After that review, the technical review committee made the following recommendation: The Technical submitted by [Commercial] was reviewed and is recommended as non- responsive. [Commercial] did not identify how the advertised prequalification requirement on 8.1--Control Surveying and 8.2--Design, Right of Way, and Construction Surveying would be met within their Technical. The technical review committee proceeded to the next lowest bidder, Gregori, with a bid price of $817,500. Gregori's technical proposal was reviewed and found to meet the technical requirements for the Project. The technical review committee recommended that Gregori be deemed the lowest responsive bidder. The decision to award the contract to Gregori was made by the selection committee, which agreed with the technical review committee's recommendations. Before making that decision, the selection committee considered whether Gregori's bid price was reasonable. The selection committee made the judgment that Gregori's bid price, which exceeded the engineer's estimate used to establish the budget amount by a relatively small percentage, was reasonable. Funds for contracts must be provided for in the Work Program. When an RFP is issued, the Department sets aside funds in the Work Program in the estimated budget amount. Therefore, in order for the selection committee to award a contract for a bid price that exceeds the estimated budget amount, the selection committee must get approval to fund the excess amount in the Work Program. In this case, the selection committee obtained approval to add $20,500--the amount by which Gregori's bid price exceeded the advertised budget amount--to the Work Program. Commercial did not contend or attempt to prove that Gregori's bid price was unreasonable. Instead, Commercial's challenge to the intended contract award was that the Department was required to reject the bid as non-responsive, because the bid price exceeded what Commercial referred to as the "advertised not to exceed budget amount." Thus, Commercial's challenge hinges on its characterization of the advertisement as specifying a "not to exceed budget amount." However, the actual language in the advertisement was: "NOT TO EXCEED BUDGET AMOUNT OR MAXIMUM AMOUNT OR BUDGET AMOUNT*: $798,000." Commercial was unable to point to any statute, rule, or RFP specification that narrowed the quoted language or that required the Department to deem a proposal non-responsive solely because the bid price is higher than the advertised budget amount. Without more, the dollar amount identified in the advertisement cannot be considered a "not to exceed budget amount." Instead, the amount was either a "not to exceed budget amount," or a "maximum amount," or simply a "budget amount." Commercial unsuccessfully attempted to prove that the Department's prior practice was to declare non-responsive any bids over the advertised budget amounts. To support its position, Commercial relied on the Department's prior practice in connection with an earlier solicitation for the same bridge replacement project, designated contract no. E5R48 (project E5R48), which resulted in a Department decision to reject all bids and re-advertise. The evidence established that the advertisement for project E5R48 set forth a "NOT TO EXCEED BUDGET AMOUNT OR MAXIMUM BUDGET AMOUNT OR BUDGET AMOUNT" of $650,000. The advertisement specified the same "PREQUALIFICATION REQUIREMENTS" in the same work type categories as did the advertisement for the Project at issue here. Potential bidders were given the opportunity to review the RFP and submit questions to the Department. The questions and answers were posted. One question/answer provided as follows: [Question:] The advertisement makes mention of a Maximum Budget for the project. The RFP is silent as to a Maximum Allowable Bid for the project. Is the budget estimate provided in the Advertisement a maximum bid price and will our bid be non-responsive if it is over that amount? [Answer:] No. Technical proposals and bids were submitted by two bidders in response to the solicitation for project E5R48. Following the same selection procedure as for the Project at issue in this case, the technical review committee first reviewed the technical proposal of the bidder with the lower bid, which was in the amount of $798,000. The technical review committee recommended as follows regarding the lower bidder: The Technical submitted by United Infrastructure Group was reviewed and is recommended as non-responsive. United Infrastructure Group did not identify how the advertised prequalification requirement on 9.3--Highway Materials Testing would be met within their Technical. The technical review committee for project E5R48 did not also recommend that the United Infrastructure Group's proposal be declared non-responsive for the additional reason that its bid of $798,000 exceeded the advertised budget amount of $650,000. The technical review committee for project E5R48 then considered the other bidder's proposal, with a bid price of $1,100,000. However, it did not proceed to review that bidder's technical proposal for compliance with technical requirements, for the following reason: The Technical submitted by Superior Construction Company has not been reviewed. The bid submitted by Superior Construction Company is 69% over the Department's advertised Budget Amount. The Technical Review Committee recommends rejecting all bids and readvertising this project. The selection committee for project E5R48 agreed with the technical review committee's recommendations and made the decision to reject all bids and re-advertise. The Department's representative at the final hearing, who served on the selection committees for both bid solicitation rounds for the Daytona Avenue bridge replacement project, confirmed that the selection committee's decision to reject all bids for project E5R48 was not based on a determination that the two bids were "non- responsive" because the bid prices were higher than the advertised budget amount. Instead, the lower bidder for project E5R48 was deemed non-responsive for the same reason that Commercial was deemed non-responsive in this case (non- compliance with all pre-qualification requirements as of the response due date); and the only other bidder proposed a price that was found to be unreasonably high. The Department has the discretion to award contracts when the amounts bid are higher than the advertised budget amounts, absent an RFP specification to the contrary. In deciding whether to exercise that discretion, one factor the Department considers is the magnitude by which the bid price exceeds the advertised budget amount. For project E5R48, after the low bidder was found non-responsive, the only other bid was so much higher than the advertised budget that the Department reasonably exercised its discretion to reject all bids and re-advertise. When bids come in much higher than estimated for a project, the Department will go back to review the engineer's estimate from which the budgeted amount was derived to determine if something needs to be changed in a re-advertisement, such as clarification of the project terms, increase in the budget amount, or both. In this case, the Department clarified the Project terms and increased its budget amount in the re-advertisement of the Project (but not nearly to the level of the very high bid that the Department refused to consider). The Department's exercise of discretion in the prior solicitation round to not consider a bid exceeding the budgeted amount by 69 percent does not dictate that the Department reject Gregori's bid as non-responsive. Instead, the Department's prior practice was shown to be entirely consistent with the Department's exercise of discretion in this case to consider Gregori's bid that was only three percent higher than the advertised budget amount. Petitioner failed to prove any Department's prior practice of rejecting bids as non-responsive when they exceed the advertised budget amount. The evidence showed otherwise. The evidence regarding project E5R48 also demonstrated that the Department's prior practice has been to reject proposals as non-responsive for failure to meet the advertised pre-qualification requirements as of the response submission deadline. That prior practice is consistent with the Department's decision to deem Commercial's proposal non- responsive because the proposal failed to satisfy all of the advertised pre-qualification requirements as of the response submission deadline of June 18, 2012.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Respondent, Department of Transportation, dismissing the formal protest of Petitioner, Commercial Industrial Corporation. DONE AND ENTERED this 20th day of November, 2012, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR 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 20th day of November, 2012.
Findings Of Fact The Respondent Dennis Soucek is a licensed dentist in Florida. On April 11, 1981, Ms. Elaine Yarbrough consulted the Respondent Soucek concerning dental treatment for extreme protrusion of her four front teeth. The Respondent and Yarbrough discussed various treatment plans including fixed and removable prostheses and orthodontics. On June 23, 1981, the Respondent Soucek extracted Yarbrough's four protruding teeth and provided her with a temporary bridge. The Respondent intended for Yarbrough to wear the temporary appliance until her gums had receded sufficiently to receive a permanent fixed bridge. In normal cases, a six-week period is advised after extraction and before impressions are taken for a permanent bridge to allow gum recision to take place. In this case, however, the Respondent allowed a period of approximately three months to transpire before the permanent impression was made. The added period of time was taken by the Respondent as a precautionary measure due to the extreme protrusion which was present in Yarbrough's mouth prior to the extractions. However, notwithstanding the three-month period, Yarbrough's gums continued to recede after the impressions were made and the bridge was installed, which caused a pronounced ledge to form around the gum line and the pontics. Approximately two months after permanent placement of the bridge, Yarbrough returned to the Respondent's office and asked him to solve a problem that had developed of air entering under her bridge. The Respondent attempted to solve the problem by using a porcelain repair kit. When the Respondent could not get the kit to properly bond to the teeth, he suggested to Yarbrough that more time be allowed for the unforeseen shrinkage to end before further repair attempts were made. The Respondent never saw Yarbrough again after this final visit. The Petitioner's expert, Dr. Mervyn Dixon, D.D.S., who examined Yarbrough, was primarily concerned that the pontics installed by the Respondent showed poor adaption to tissue in that the gingival facial aspect of the pontics exhibited the "heavy ledge" referred to previously and that the labial tissue surfaces of the central pontics were pressing against the incisive papilla to the extent that there was a blanching due to lack of circulation. Additionally, Dr. Dixon testified that it is not acceptable to use filling material to repair a new bridge.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered by the Board of Dentistry finding the Respondent Soucek guilty of violating Section 466.028(1)(y), Florida Statutes (1981) in his treatment of the complainant, placing him on probation until such time as he furnishes evidence of completion of thirty (30) hours of continuing education in bridge work, and imposing a $1,000 administrative fine. DONE and ORDERED this 24th day of June, 1983, in Tallahassee, Florida. SHARYN L. SMITH, 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 24th day of June, 1983. COPIES FURNISHED: Julie Gallagher, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Hugh Maloney, Esquire PATTERSON & MALONEY 790 East Broward Boulevard Post Office Box 030520 Fort Lauderdale, Florida 33303 Fred Varn, Executive Director Florida Board of Dentistry Old Courthouse Square Building 130 North Monroe Street Tallahassee, Florida 32301 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF DENTISTRY DEPARTMENT OF PROFESSIONAL REGULATION Petitioner, vs. CASE NOS. 0024080 (DPR) 82-2947 (DOAH) DENNIS SOUCEK, D.D.S., Respondent. /
The Issue The issues in this protest are whether either or both of Respondent's intended actions in dispute——namely, (i) deeming one application eligible for funding despite the existence of reasonable grounds for uncertainty as to whether the amount of capital the applicant's equity proposal states will be invested during construction is sufficient to cover development costs; and (ii) awarding another applicant a number of proximity points based on information in its application that was later discovered to be mistaken——are contrary to governing statutes, administrative rules, or the specifications of the solicitation; and, if so, whether the erroneous action or actions are contrary to competition, clearly erroneous, or arbitrary or capricious.
Findings Of Fact FHFC is the housing credit agency for the state of Florida whose responsibilities include the awarding of low- income housing tax credits, which developers use to finance the construction of affordable housing. Tax credits are distributed pursuant to a competitive process similar to a public procurement that starts with FHFC's issuance of a request for applications.1/ On September 6, 2018, FHFC issued Request for Applications 2018-110 (the "RFA"). Applications were originally due on October 23, 2018, but this deadline was extended to December 4, 2018. FHFC received 191 applications in response to the RFA, through which FHFC seeks to award housing credits worth up to approximately $14.3 million for developments that will be located in medium counties. A Review Committee was appointed to evaluate the applications and make recommendations to FHFC's Board of Directors (the "Board"). Pursuant to the ranking and selection process outlined in the RFA, applicants were evaluated on eligibility items and were awarded points for other items. The eligibility items included Submission Requirements, Financial Arrearage Requirements, and a Total Development Cost Per Unit Limitation requirement. To be eligible for funding, an application must meet all of the eligibility items. A Funding Test in the RFA provides that "[a]pplications will be selected for funding only if there is enough funding available to fully fund the Eligible Housing Credit Request Amount." The Review Committee found 181 applications eligible (95 percent of the total), deemed ten applications ineligible, and selected ten applications for recommendation to the Board for funding. At a meeting on March 22, 2019, the Board approved the Review Committee's eligibility and funding recommendations. That same day, FHFC notified all applicants that the Board had approved the staff recommendations. The notice, which was posted on FHFC's website, listed the many eligible applicants along with the handful of eligible applicants that had been chosen for an intended award of housing credits. Among the putative successful applicants were Norton Commons and Harrison Parc.2/ Though deemed eligible, HTG Oak Valley, Harmony Pinewood, and Fountains were not recommended for funding. Harmony Pinewood. Harmony Pinewood timely submitted an application requesting an allocation of housing credits for an 86-unit housing development in Brevard County. FHFC determined that Harmony Pinewood's application was eligible for an award of housing credits but did not preliminarily select Harmony Pinewood for funding. In evaluating Harmony Pinewood's application, FHFC found that the applicant had earned enough proximity points to qualify for the Proximity Funding Preference, which gives Harmony Pinewood an advantage in the ranking over other applicants who failed to qualify for the preference. Applicants earn proximity points based on the distance between their Development Location Point ("DLP")3/ and the Transit Service or Community Service they select. The closer the applicant's DLP is to the corresponding Transit or Community Service, the more proximity points the applicant will receive. As an eligible Community Service, an applicant might choose a Grocery Store, Public School, Medical Facility, or Pharmacy. The RFA required applicants to "state[] [their respective DLPs] in decimal degrees, rounded to at least the sixth decimal place." Harmony Pinewood selected latitude 28.041319 and longitude -80.615026 as the coordinates for its DLP. As a Community Service, Harmony Pinewood identified a Grocery Store, Thrifty Specialty Produce, located at 2135 Palm Bay Road Northeast, Palm Bay, Florida 32905, latitude 28.035489, longitude -80.610050. The RFA instructed applicants to round up the distance between the DLP and selected service to the nearest hundredth of a mile. Harmony Pinewood's application declared the distance between its DLP and Thrifty Specialty Produce to be exactly one-half of a mile. The RFA required applicants to obtain a minimum of 7.0 proximity points to be eligible for funding. Applicants needed to earn 9.0 or more proximity points to be entitled to the Proximity Funding Preference. During the evaluation, FHFC does not independently calculate any distances based on the coordinates provided by applicants, but instead awards points based on the distances stated in the applications, which it accepts as true. The distance of 0.50 miles entitled Harmony Pinewood to an award of 3.5 proximity points for its Grocery Store, which contributed to the applicant's total proximity score of 9.0. Based on the coordinates provided in Harmony Pinewood's application, however, the distance between its DLP and Thrifty Specialty Produce is, in fact, 0.51 miles when rounded up to the nearest hundredth of a mile, as Brian Waterfield, testifying at hearing on behalf of Harmony Pinewood, admitted. According to Mr. Waterfield, Harmony Pinewood had intended to enter "28.041219" rather than "28.041319" as the latitude coordinate for its DLP but made a typographical error. He claimed that if the latitude had been entered correctly as "28.041219," then the distances shown in Harmony Pinewood's application would be correct. HTG Oak Valley protests the award of 3.5 Grocery Store proximity points to Harmony Pinewood's application, asserting that the score was based on an erroneously reported distance of one-half mile. HTG Oak Valley urges that this error be treated as a minor irregularity; that the distance in question be corrected to 0.51 miles in accordance with the RFA's directions concerning rounding; and that Harmony Pinewood's Grocery Store- related proximity points be reduced to 3.0 to conform to the revised DLP-to-service distance. This would bring Harmony Pinewood's total proximity score down to 8.5, rendering Harmony Pinewood ineligible for the Proximity Funding Preference. FHFC agrees with HTG Oak Valley. Harmony Pinewood contends that the error in its application was not in the reported distance but rather in the DLP latitude coordinate. Harmony Pinewood urges that this error be treated as a minor irregularity; that the latitude in question be corrected to 28.041219 in accordance with the applicant's intent; and that the initial scoring decision to award Harmony Pinewood 3.5 Grocery Store-related proximity points be upheld. The problem with Harmony Pinewood's position is that no one reviewing the information provided within the application could discover the alleged typographical error in the DLP latitude coordinate except Harmony Pinewood itself. In contrast, any party using the coordinates stated in the application could attempt to verify the accuracy of the reported distance between Harmony Pinewood's DLP and Thrifty Specialty Produce. Taking this a step further, the longitude and latitude coordinates of a DLP constitute the numerical expression of a subjective decision on the part of the applicant, a value judgment which is not falsifiable, despite the apparent exactitude of the figures. This is because the DLP is, by definition, "a single point selected by the Applicant on the proposed Development site that is located within 100 feet of a residential building existing or to be constructed as part of the proposed Development." Fla. Admin. Code R. 67-48.002(34) (emphasis added). There are, in other words, no right or wrong DLPs, only compliant and noncompliant DLPs. Harmony Pinewood's DLP, as described in its application, satisfies rule 67-48.002(34), and thus is a responsive, conforming, compliant DLP; there is nothing facially or inherently irregular about it. The selection of a DLP is, moreover, a competitive decision because the chosen location directly affects the number of proximity points to which an application may be entitled. It is a decision that makes an application more or less competitive relative to the other applications. In this respect, selecting a DLP is analogous to deciding upon a price to bid on a contract. Imagine a second-ranked bidder claiming that it had meant to bid $28,041,219 instead of $28,041,319, where $100 would make the difference between winning and losing. Unless there were clear evidence in the bid that the lower price had been intended, there would be no practical distinction whatsoever between "correcting" the supposed clerical error and "amending" the bid based on extrinsic evidence submitted post decision. The latter is clearly prohibited. See § 120.57(3)(f), Fla. Stat; cf. Fla. Admin. Code R. 67-60.009(4). Because post-deadline amendments to an application based on extrinsic evidence are impermissible, an applicant's subjective competitive decisions must be deemed both final as of the application deadline, and fully expressed within the four corners of the application. Thus, it should be rare for an alleged error in the expression of a competitive decision to be deemed a minor irregularity. To make such a finding of minor irregularity in an exceptional situation, two necessary (but perhaps not sufficient) conditions would have to be met: (i) the alleged error would need to be reasonably apparent to anyone on the face of the application and (ii) the intended statement, free of error, would need to be unmistakably expressed somewhere in the application. So, for an example, recall the previous hypothetical but assume, as additional facts, that the bid price of $28,041,319 is necessarily the product of a unit price ("a") times a certain number of units ("b"), and that both a and b are clearly stated in the bid. If a × b = $28,041,219 instead of $28,041,319, then someone other than the applicant would be able to discover the mathematical or clerical error in the bottom-line price quote, and it would be fairly clear from the face of the bid that $28,041,219 was the intended price. Such an error might be correctible in the agency's discretion.4/ That is not the situation here. The coordinates of Harmony Pinewood's DLP appear only once in its application. Because of the rounding involved, moreover, the "true" coordinates cannot be derived from the stated distance of miles. Unlike the product of a times b, which can be only one number, there are multiple DLP longitude-latitude pairs that correspond to the stated distance of 0.50 miles——or, at a minimum, the evidence fails to rule out such diversity. The only way for anyone besides Harmony Pinewood to know that the DLP latitude "should have been" 28.041219 is to hear it from Harmony Pinewood. Under these circumstances, the undersigned determines that the DLP coordinates in Harmony Pinewood's application must be considered the true and correct, full and final expression of the applicant's decision to select that particular location for its DLP. Therefore, the irregularity in Harmony Pinewood's application is not the stated DLP latitude; it is the stated distance between the DLP and the Grocery Store, which should be miles instead of 0.50 miles. Because the RFA requires an award of 3.0 proximity points for a distance of 0.51 miles, and because the distance irregularity does not otherwise render Harmony Pinewood's application nonresponsive, the correct, and only nonarbitrary, solution to the problem is for FHFC to reduce the number of Grocery Store proximity points awarded to Harmony Pinewood's application, from 3.5 as intended, to 3.0. Fountains. Fountains submitted an application requesting an allocation of housing credits for a proposed 120-unit housing development in Flagler County. FHFC determined that Fountains was eligible for an award of housing credits but did not preliminarily select the Fountains application for funding. HTG Oak Valley protests FHFC's intended decision to deem Fountains eligible for funding, alleging that Fountains' application is materially nonresponsive——and thus should be rejected as ineligible——for failing clearly to state that an amount of equity sufficient to cover the anticipated development costs would be invested in the project prior to construction completion. The RFA requires that an applicant must submit, as part of its application, a Development Cost Pro Forma detailing both the anticipated costs of the proposed development as well as the anticipated funding sources for the proposed development. In order to demonstrate adequate funding, the Total Construction Sources (including equity proceeds/capital contributions and loans), as shown in the pro forma, must equal or exceed the Total Development Costs reflected therein. During the scoring process, if a funding source is not considered or is adjusted downward, then Total Development Costs might wind up exceeding Total Construction Sources, in which event the applicant is said to suffer from a construction funding shortfall (deficit). If an applicant has a funding shortfall, it is ineligible for funding. The Development Cost Pro Forma does not allow applicants to include in their Total Construction Sources any equity proceeds to be paid after construction completion. Instead, the applicant must state only the amount of "Equity Proceeds Paid Prior to Completion of Construction." The pro forma defines "Prior to Completion of Construction" as "Prior to Receipt of a Final Certificate of Occupancy." The RFA requires, as well, that an equity proposal letter be included as an attachment to the application. For a housing credit equity proposal to be counted as a source of financing, it must meet the following criteria: Be executed by the equity provider; Include specific reference to the Applicant as the beneficiary of the equity proceeds; State the proposed amount of equity to be paid prior to construction completion; State the anticipated Eligible Housing Credit Request Amount; State the anticipated dollar amount of Housing Credit allocation to be purchased; and State the anticipated total amount of equity to be provided. (Emphasis added). As Attachment 14 to its application, Fountains submitted an equity proposal letter from RBC Capital Markets ("RBC") executed by David J. Urban (the "Equity Proposal"). In relevant part, the Equity Proposal states: Anticipated Total Equity to be provided: $15,510,849* Equity Proceeds Paid Prior to or simultaneous to closing the construction financing: $2,481,736* (min. 15%) Equity Proceeds to be Paid Prior to Construction Completion: $8,686,075 Pay-In Schedule: Funds available for Capital Contributions #1: $2,481,736* be paid prior to or simultaneously with the closing of the construction financing. Funds available for Capital Contribution #2 $2,326,627* prior to construction completion. Funds available for Capital Contribution #3 $3,877,712* concurrent with permanent loan closing. Equity Proceeds Paid at Lease Up $5,428,797* Equity Proceeds Paid at 8609 $1,395,977* *All numbers rounded to nearest dollar. The Pay-In Schedule in the Equity Proposal refers to "permanent loan closing" as the moment when Capital Contribution #3 will be made "available." The Equity Proposal does not, however, define or discuss permanent loan closing, and, to the point, does not specify when it is expected to occur. Of potential relevance in this regard is a letter from JP Morgan Chase Bank, N.A. (the "Chase Letter"), which is included as Attachment 16 to Fountains' application. Unlike the Equity Proposal, the Chase Letter, if not the last word on the subject, at least sheds some light on the timing of the crucial milestone, i.e., "permanent loan closing." Although the Chase Letter is full of escape clauses and does "not represent a commitment" or "an offer to commit," the document nevertheless outlines the terms for the closing of the proposed construction and permanent loans. The proposed terms call for the payment of a $10,000 Conversion Fee at permanent loan closing and impose preconditions for the conversion from the construction loan to the permanent loan, which include a requirement that there have been "90% economic and physical occupancy for 90 days." No evidence was presented as to the meaning of this language, but the term "physical occupancy" is clear and unambiguous——and it plainly happens after receipt of a final certificate of occupancy, which, under the RFA, is the end point of the construction phase. HTG Oak Valley argues that the Pay-In Schedule casts doubt on whether the entire amount stated in the Equity Proposal's line-item entry for "Equity Proceeds to be Paid Prior to Construction Completion" ($8,686,075) will be paid before the final certificate of occupancy is issued. According to HTG Oak Valley, the Pay-In Schedule shows that the third capital contribution will be paid after construction completion because the second capital contribution, which is the earlier of the two, is due to occur "prior to construction completion." Thus, HTG Oak Valley contends that Fountains' construction financing sources should be reduced by $3,877,712, thereby creating a construction financing shortfall and rendering the Fountains application ineligible for funding. HTG Oak Valley finds support for its position in an unlikely place, namely, FHFC's intended rejection of the application that The Vistas at Fountainhead Limited Partnership ("Vistas") submitted in response to Request for Applications 2019-105 ("RFA 2019-105"). That proposed agency action is relevant because Vistas had attached to its application an equity proposal letter from RBC whose terms and conditions——other than the dollar amounts and (obviously) the applicant's name——are identical to those of the Equity Proposal for Fountains. During the evaluation of applications under RFA 2019-105, which took place at around the same time as the review of applications pursuant to the RFA at issue here, FHFC's scorer determined that Capital Contribution #3 should be excluded from the amount of equity proceeds to be paid prior to construction completion, with the result that the Vistas application was deemed ineligible for funding due to a funding shortfall. The Vistas and Fountains applications, competing in separate solicitations, were scored by different FHFC staff members. The evaluator who scored the financial section of Vistas' application sought advice concerning her interpretation of the Equity Proposal, discussing the matter with FHFC's Director of Multifamily Programs and legal counsel at a reconciliation meeting that occurred before the Review Committee convened; this evaluator encountered no resistance to her plan of making a downward adjustment to Vistas' equity funding. The evaluator of the Fountains application did not likewise discuss her scoring rationale and thus received no input or guidance from FHFC's management. Ultimately, however, because each scoring determination belongs to the Review Committee member herself or himself, inconsistent or conflicting results are possible, as these cases demonstrate. Once in litigation, FHFC discovered that it had reached opposite scoring conclusions based on the same material facts. In these proceedings and in the Vistas Protest, FHFC has stressed its desire to take a consistent approach to the identical Equity Proposals. To that end, in the Vistas Protest, FHFC has reversed course and argued that, contrary to its intended action, the Equity Proposal provided by Vistas fully satisfies the requirements of RFA 2019-105; there is no funding shortfall; and Vistas' application is eligible and should be selected for funding. Deeming Vistas' application eligible would achieve consistency, of course, by giving favorable treatment to the applications of both Fountains and Vistas, which are similarly situated as to the Equity Proposal. Naturally, HTG Oak Valley urges that consistency be found the other way around, through the rejection of both applications. In support of its decision to change positions on Vistas' Equity Proposal, FHFC relies upon the following premises, which are equally applicable to the determination of Fountains' substantial interests: (i) the Equity Proposal plainly specifies, in the line-item entry for "Equity Proceeds to be Paid Prior to Construction Completion," the amount to be paid prior to construction completion; (ii) permanent loan closing does not necessarily have to occur after construction completion; and (iii) the information contained in the Pay-In Schedule is not information that is required by RFA 2019-105 (or the RFA at issue in this case). The disputes arising from the scoring of the Equity Proposal are solvable as matters of law and therefore will be addressed below.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Housing Finance Corporation enter a final order rescinding the intended award to Harrison Parc due to ineligibility; finding HTG Spring and Fountains ineligible for funding; and reducing Harmony Pinewood's proximity points to 8.5, which requires the cancelation of its Proximity Funding Preference. It is further RECOMMENDED that, as a result of the foregoing final actions, HTG Oak Valley be selected for funding under RFA 2018-110 and Wildwood Preserve Senior Living (not a party to this litigation) be deselected for funding. DONE AND ENTERED this 16th day of July, 2019, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 16th day of July, 2019.
Findings Of Fact On December 24, 1986, respondent, Department of Transportation (DOT), gave notice to qualified and interested contracting firms that it was accepting bids from firms interested in providing construction and maintenance services on State Job No. 08150-3412. Such bids were due on or before January 21, 1987. The job description read as follows: At State Bridge Nos. 080025 and 000026 over the Withlacoochee River North of Tampa. Work consists of Furnish and Install Integral Pile Jackets (port. cement grout filled); Remove and Replace Sections of Bridge Deck; Floating Turbidity Barrier; and Incidental Items. Length 0.066 Mile. (B.I. 1144013) Stated in plainer language, the project called for repairs to two bridges on I-75 which span the Withlacoochee River southwest of Ocala in Hernando County. The bidders were also provided with a copy of the specifications and bid form dated November 4, 1986 regarding the contract. In response to this offer, petitioner, CSA Marine Services, Inc. (CSAMS), a contractor with offices at 759 Parkway Street, Jupiter, Florida, filed a bid proposal by the established deadline. Its bid totalled $123,347.59. Also filing a bid proposal was Seig and Ambachtsheer, Inc. (SAI), a contractor in Orange City, Florida. Its bid price was $137,209.50. The bid form itself was prepared by DOT and merely required the contractor to fill in the blanks where appropriate. The first two columns were labeled "item number" and "approximate quantities" and were already completed by DOT. For those items having a quantity of only one, the words "lump sum were written in the second column. Where quantities exceeded one, they were expressed in such terms as linear feet, cubic yards and pounds together with the approximate numerical quantities. The third column was labeled "item description and unit or lump price (written in words)." The fourth column read "unit price (in figures)" and required the bidder to indicate the unit price of each line item in figures. The fifth or final column was labeled "amounts" and required the bidder to reflect the lump sum price of each line item in figures. Columns three through five were filled in by CSAMS where necessary. The total price of the bid was to be listed on a bid blank which was attached to the bid form. On its face, the third column on the form offered petitioner the option of either using a unit or lump sum price. In addition, section 2-5.1 of the Standard Specifications for Road and Bridge Construction, 1986 Edition, which governs the awarding of contracts and has been incorporated as a part of the bid documents, provides as follows: Proposals shall be submitted on the form described in 2-2. Unit or lump sum prices for all bid items shall be shown in words and figures, and all extensions shall be carried out. Notwithstanding the form and instructions, according to a DOT representative, a lump sum price may be used only when the quantity in column two is one item. If more than one item is reflected in column two, then DOT expects a contractor to use the unit price. However, there is no written rule, instruction or provision in the specifications that sets forth this requirement. CSAMS properly opted to use lump sum price under column three on at least two line items even though the quantities exceeded one. Of particular interest was line item 8400-3-4 which, according to column two, required 20.800 cubic yards of concrete for a "superstructure." Relying upon the optional language on the form, petitioner wrote the words seven thousand, one hundred, fifty five dollars and 00/100 cents" in column three (which was a lump sum price), and a unit price of $344.00 in column four. It then used the figure of $7,155 in the final column of that item, which is the approximate sum of $344 times the quantity (20.800). Because of the volume of bid lettings each month, DOT uses a computer to total the numbers in each line item for each bid. If the amount in column five does not agree with the figures in columns three and four, the computer flags the item, and a manual review of the line item is made. While reviewing line item 8400-3-4 of petitioner's bid form, the computer found the numbers did not agree. More specifically, when 20.800 in column two was multiplied times $344.00 in column four, it equalled $7,155.20 and not $7,155.00 as reflected in column five of petitioner's bid form. This twenty-cent disagreement arose because petitioner had rounded off the unit price from $343.99038 to $344.00 in column four. The disagreement prompted a manual review of petitioner's bid form and a recalculation of the line item. On January 30, 1987 DOT bureau chief J. Ted Barefield prepared a letter to CSAMS styled "Notice of Switch in Apparent Low Bidder" indicating in part: Due to mathematical error(s) on the bid of CSA Marine Services, Inc. and Continental Shelf Associates, Inc., the apparent low bidder, whose bid amount was $123,347.59 is now $265,016.59. Therefore, the apparent low bidder is Seig & Ambachtsheer, Inc. The change in amount was the result of DOT increasing the unit price in column four from $344 to $7,155 (to agree with column three) and multiplying the quantity (20.800) times the sum specified in words in column three ($7,155) to arrive at a total in column five of $148,824. This caused an increase of $141,669 over the original bid price. In making the above change, DOT relied on Section 3-1 of the 1986 Edition of the Standard Specifications for Road and Bridge Construction. Section 3-1 provides in relevant part as follows: In the event of any discrepancy in the three entries for the price for any item, the unit price as shown in words shall govern unless the extension and the unit price shown in figures are in agreement with each other, in which case they shall govern over the unit price shown in words. (Emphasis added) Here, because of the twenty-cent discrepancy in the entries for line item 8400-3-4, DOT used the "unit price as shown in words" in column three to recalculate the item since the extension ($7,155.00) and the unit price shown in figures ($344.00)" did not agree. In doing so, DOT did not first evaluate the price written in words to see if it was a lump sum or unit price. After receiving the above letter, CSAMS and DOT representatives met in early February 1987 to discuss the CSAMS proposal. It was represented to CSAMS that it should have used a unit price in words in column three rather than a lump sum price. Petitioner was also provided with a copy of a letter previously sent to it on September 6, 1985 by DOT which noted the following irregularity on a bid: "Unit prices as written in words and figures do not agree (Item 8457- 70)." However, the letter did not contain explicit advice as to DOT's unwritten policy. On February 5, 1987 Barefield wrote a second letter to CSAMS indicating that there were several discrepancies in its bid proposal. These included: (a) the name on the cover sheet (CSAMS and Continental Shelf Associates, Inc.) did not agree with the name (CSAMS) in other parts of the bid, (b) unit prices as written in words and figures did not agree, (c) an incomplete affidavit was filed, and (d) an incorrect MBE Certification and incomplete Utilization Sheets were submitted. The latter two errors were related to the discrepancy in the names. However, the letter stated that "no further action is requested by you at this time," and that the letter was to serve as a reminder that in the future the irregularities could cause petitioner's bid to be rejected. Petitioner's bid was accepted as being appropriate but with the substantially higher bid price of $265,016.59. The error made by CSAMS is a common one. Indeed, it was stated the same mistake is made by contractors on "several bids during each letting." Even so, DOT has not considered providing some special instruction or rule to clarify this matter.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that petitioner be awarded the contract on State Job No. 08150- 3412. DONE AND ORDERED this 22nd day of April, 1987, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of April, 1987.
Findings Of Fact DOT is an agency of the State of Florida responsible for the construction and maintenance of roads designated as part of the State Highway System. Clark is a road and bridge construction company located in Dozier, Alabama, and certified to bid on DOT contracts. On January 23, 1991, Clark submitted its bid on DOT Project No. 61530- 3601 for the construction of two adjacent bridges (Holmes Creek Bridge and Holmes Creek Relief Bridge) located in Washington County, Florida. On April 4, 1991, DOT and Clark entered into a contract for this project. The construction on the project was to take 400 contract days. On December 8, 1991, DOT advised Clark of its intention to declare Clark delinquent for unsatisfactory progress on the project. The contract required Clark to submit a construction schedule for approval by DOT. Under its approved construction schedule, Clark anticipated that it would commence its pile driving activity on the tenth day of the contract. Clark also proposed beginning the superstructure 40 days after beginning the substructure. The contract provides in part as follows: 8-7.3.2 . . . The Department may grant an extension of contract time when a controlling item of work is delayed by factors not reasonably anticipated or foreseeable at the time of bid. Such extension of time may be allowed only for delays occurring during the contract time period or authorized extensions of the contract time period. * * * Delays in delivery of materials or competent equipment which affect progress on a controlling item of work will be considered as basis for granting a time extension if such delays are beyond the control of the Contractor or supplier. * * * 8-8.2 Regulations Governing Suspension for Delinquency: Under the relevant rule provisions, a contractor is delinquent when unsatisfactory work progress is being made under these conditions: * * * (3) The allowed contract time has not expired and the percentage of dollar value of completed work is 15 percentage points or more below the dollar value of work which should have been completed according to the approved working schedule for the project. After falling 15 percent behind, the delinquency continues until the percentage points of the dollar value of completed work is within five percentage points of the dollar value of work which should have been completed according to the approved working schedule for the project. The contract required Clark to procure pilings for the project from a certified prestressed concrete manufacturer. The concrete mix design used by the prestress manufacturer had to be approved by DOT before construction could begin. At the time Clark prepared its bid, there were no preapproved prestressed concrete manufacturers in Florida or Alabama in the reasonable vicinity of the project. In preparing its bid, Clark contacted Sherman International (Sherman), a prestressed concrete manufacturer with headquarters in Birmingham and a plant in Mobile, Alabama. Immediately upon being awarded the contract, Clark notified DOT that Sherman would be its prestress supplier. Sherman had experience in fabricating prestressed products for states other than Florida and therefore believed it would not have a problem meeting Florida's certification requirements. The certification process requires inspection and approval by DOT officials of the manufacturer's equipment, material suppliers, plant operations, concrete mix, etc. The certification process also involves the production and pouring of test batches which must be reviewed by DOT officials who note problems with the product and direct resolution of the problems. The certification process involves a minimum of 28 days to allow the test batches to cure. After Sherman went through two unsuccessful 28-day curing periods in its effort to meet DOT approval, it retained an expert more familiar with DOT procedures and requirements and was finally able to obtain DOT approval on July 10, 1991. DOT's district engineer recognized that Clark reasonably would have anticipated that Sherman would be approved without delay. Neither Sherman nor Clark had reason to anticipate the approval of Sherman would take an extended length of time. Due to the delays in the approval of Sherman, Clark was unable to begin pile driving until August 14, 1991, the 98th day of the contract. Under the contract, piling had to be driven to depth until it met a specified bearing capacity, but still maintained the necessary height above ground to support the superstructure. The work on the foundation began by driving test piles. Once the test piles were driven, DOT was responsible for determining the order lengths for the piling. The order lengths were supposed to be long enough so that the piles would reach bearing and also maintain the specified height, above ground. Immediately upon commencing pile driving, Clark ran into problems because the piles were not long enough to be driven to bearing. The piles which did not meet bearing had to be spliced and redriven until they reached bearing. The contract contemplated that as many as seven splices would be required, 2 on the relief bridge and 5 on the creek bridge. The contract therefore identified splicing as an item for which the bidders were required to submit a unit price. In fact, on the creek bridge, 43 of the 96 piles had to be spliced. DOT was responsible for determining the additional pile lengths for the splices and it took DOT at least a week to make the determination once it realized a splice was required. Sherman had to manufacture the splices piecemeal as the orders came in to do so. Once manufactured, the pile splice had to cure for seven days then be shipped to the contractor. The contractor then affixed the pile splice to the original piling by the use of dowels and epoxy which had to cure for 48 hours. Construction of the substructure consisted of driving the piles, splicing and pouring concrete caps on which the bridge superstructure would rest. Before construction of the superstructure (decks) of the bridge could begin, pile caps had to be constructed. It took anywhere from two weeks to two months between the time the parties discovered that a pile or group of piles would have to be spliced and the time the spliced pile could be redriven. The pilings are constructed in clusters known as bents. Every bent on this project required splicing and therefore, construction of every bent was delayed. Before Clark could begin construction of the superstructure, it was necessary to have a consecutive series of bents completed including the caps. Even though Clark anticipated that it would commence construction on the superstructure 40 days after beginning the substructure, Clark was unable to start on the superstructure until 92 days after it started the pile driving operations because of the delays caused by the excessive splicing. Clark expected to be able to begin the superstructure on one end of the bridge while it was working on the substructure at the other end. However, Clark's planned, efficient progress was impeded because of ongoing driving operations of spliced pilings. Clark could not pour the caps while pile driving was going on within 100 feet of the bent where caps were to be poured. Clark continued on with its pile driving while it ordered splices for the previous bents. As soon as Clark was able to pour caps it did so and as soon as there were a sufficient number of completed successive bents available, Clark began work on the superstructure. Clark requested time extensions due to the delays, but the requests were denied. Clark ultimately was delayed in the progress of its work due to the unanticipated pile splices which exceeded the estimated quantity by more than 800 percent. DOT granted Clark nine additional contract days as the result of a supplemental agreement which did not include any additional time for the delays due to the excessive splicing. At the time of the notice of delinquency, Clark requested a 45-day extension of time due to the splicing. By a letter dated December 4, 1991, the DOT project engineer acknowledged that Clark was entitled to some time extension due to the splicing, but DOT proposed only a 9-day extension. In fact, no such extension was ever granted. DOT determined Clark delinquent on day 210. According to the engineer's weekly summary, on day 210, the percentage of the dollar value of completed work was 39.5 percent and the total allowed number of contract days was 403. By DOT's own calculations, if Clark had been given the nine days proposed for the supplemental agreement and the nine days suggested in the project engineer's letter of December 4, 1991, the project would have only been delinquent by 17 percent. It is not necessary for the trier of fact herein to determine the exact number of days which should have been granted for the pile splicing. It is enough to find that the 9 days suggested by DOT are inadequate and that the appropriate figure, based on the engineer's progress notes and reports, is at least twice that. DOT's witnesses offered explanations of why Clark was entitled to no extension in contract days because of the pile splices. However, their suggestions was beyond the realm of credibility in light of the actual extent of work and time required. Credibility determinations being within the exclusive province of the Hearing Officer, it is determined that DOT's testimony regarding the reasons for DOT's refusal to extend the contract time to reflect the inordinate number of pile splices is simply not credible or entitled to any weight. Additionally, neither of the main DOT witnesses had adequate knowledge of this specific project. If DOT had granted Clark an adequate number of days extension for the pile splices, that number plus the additional 9 days would result in an adjusted number of contract days of over 430. If Clark were granted the appropriate number of additional contract days, the percentage of dollar value of completed work would be less than 15 percentage points below the dollar value of work to be completed according to the contractor's schedule. This is calculated as follows: 210/430=48.6 percent. (Actual work completed of 39.5 percent or uncompleted percent of total contract amount of 60.5 percent.) 60.5-48.6=11.9 percent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the DOT enter a Final Order determining that Clark is not delinquent and dismissing the delinquency determination against Clark Construction Co., Inc., on State Project No. 61530-3601. DONE and ENTERED this 14th day of July, 1993, in Tallahassee, Florida. DIANE K. KIESLING 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 14th day of July, 1993. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 92-1592 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Department of Transportation Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-5(1-5); 15(8); 18(8); 32(17); and 34(19). Proposed findings of fact 7-14, 19, 20, 22-31, 33, 35-37, and 40 are subordinate to the facts actually found in this Recommended Order. Proposed finding of fact 6 is unnecessary. Proposed findings of fact 16, 38, 39, and 42 are unsupported by the credible, competent and substantial evidence. Proposed findings of fact 17, 21, 41, and 43 are irrelevant. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Clark Construction Co., Inc. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 2-6(9-13); 8-13(14-19); 14(6); 15(7);. 16-28(20-32); 30-33(33-36); 34(8); 35(37); 36-40(39-43); and 46(38). Proposed findings of fact 1, 29, 41, 42, and 45 are subordinate to the facts actualloy found in this Recommended Order. Proposed findings of fact 7 and 47 are unsupported by the credible, competent and substantial evidence. Proposed findings of fact 43 and 44 are unnecessary. COPIES FURNISHED: Reynold D. Meyer Genie L. Buckingham Assistant General Counsels Department of Transportation 605 Suwannee Street, MS-58 Tallahassee, FL 32399-0458 Mary Piccard, Attorney at Law Cummings, Lawrence & Vezina, P.A. 1004 DeSoto Park Drive P.O. Box 589 Tallahassee, FL 32303-0589 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458
The Issue Whether Petitioner has standing to administratively challenge, on the ground that navigation will be adversely affected, the Department of Environmental Regulation's determination, announced in its May 2, 1989, Notice of Permit Issuance, to issue Permit No. 061594966 authorizing Respondent Avatar Corporation to conduct dredge and fill activities in the Northwest Channel in Broward County, Florida, in connection with the construction of a fixed span bridge traversing that waterway? Whether its challenge was timely instituted? Whether the permit should be issued and under what additional conditions, if any?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Petitioner is a homeowners association. Its 300 dues-paying members 1/ own homes in an area of the City of Hollywood bounded on the north by Sheridan Street, on the south by the City of Hallandale, on the east by the Intracoastal Waterway and on the west by U.S. Highway One. Avatar is a developer. It owns land in the City of Hollywood that it has platted and now desires to develop into a residential community known as Harbor Islands consisting of, among other things, 3,175 dwelling units, a hotel, and retail stores. In addition, four parcels of land (Parcels 2, 3, 11 and 11A) within the planned community, totaling approximately 30 acres, have been dedicated to the City of Hollywood for use as public park land. Avatar's right to develop this land for residential use was affirmed in the final judgment entered in Broward County Circuit Court Case No. 72-4252 on September 20, 1974, as supplemented by the supplementary final judgment entered in that case on December 17, 1981. Neither Petitioner, the Department, nor any other state agency was a party in Broward County Circuit Court Case No. 72-4252. The land that Avatar seeks to develop is situated on three islands and is bounded on the north by the Washington Street Canal, on the south by the City of Hallandale, on the east by the Intracoastal Waterway and on the west by the DeSoto Waterway. Two waterways, the Venetian Waterway and the Northwest Channel, run through the interior of the planned Harbor Islands development (Development). The Venetian Waterway lies between the two southernmost of the Development's three islands. From its northern terminus at the Northwest Channel, it follows a southerly course beyond the southern boundary of the Development and into the City of Hallandale. On its southward trek, it passes under two bridges, one within the Development and one in the City of Hallandale. These bridges are of the fixed span variety and both have a vertical clearance of approximately ten to 12 feet. The Northwest Channel separates the northernmost of the Development's three islands from its other two islands while connecting the DeSoto Waterway with the Intracoastal Waterway. It is a man-made canal, the construction of which was the subject of a 1969 agreement between Avatar's predecessors in interest, who will hereinafter be referred to as the "Mailmans," and the City of Hollywood and Broward County, among others, 2/ that settled a lawsuit the Mailmans had filed. Numbered paragraphs 5, 6, 12 and 15 of the agreement provided as follows: NORTH AND SOUTH CHANNELS. The MAILMANS agree to construct and perpetually maintain at their expense, a channel or canal, running from the southerly portion of the DeSoto Waterway, as shown on Exhibit B, attached hereto, the same to be located in the vicinity of the present existing channel or within 500 feet south thereof, and in a like manner to construct and maintain a similar channel or canal, running from the northerly portion of the DeSoto Waterway, easterly to and connecting with the Intracoastal Waterway as shown on Exhibit B, attached hereto. Said channels shall have a minimum depth of 10 feet and shall be sufficient for all vessels requiring a clearance of 16 feet, and a minimum width of 100 feet. The parties acknowledge that the purpose of said channels or canals is to provide the general public the unobstructed and perpetual means of navigable access to the Intracoastal Waterway from any part of the DeSoto Waterway both north and south of Northeast Ninth Street. BRIDGES. The parties agree that the MAILMANS shall have the right to construct bridges, at their expense, across the aforesaid channels described in paragraph 5, hereinabove, together with necessary approaches and abutments. Said bridges shall be either "turntable" or stationary bridges, of a minimum height of 16 feet, as measured at high tide, with a clear span of not less than 30 feet. The parties further agree that the MAILMANS shall have the right to construct at their expense a bridge across DeSoto Waterway at Northeast Ninth Street, together with necessary approaches and abutments, which bridge shall be the only one not required to have clearance of 16 feet. Said bridge, together with necessary approaches and abutments, if constructed, shall be of such size and construction as shall not block, obstruct or interfere with the use of any part of Diplomat Parkway or Northeast Ninth Street lying west of DeSoto Waterway as each public thoroughfare presently exists. The parties further agree that under no circumstances shall any bridge be constructed so as to hinder or obstruct perpetual and navigable access of vessels requiring a minimum clearance of 16 feet at mean high tide, to the Intracoastal Waterway from any part of DeSoto Waterway lying North and South of Northeast Ninth Street. The MAILMANS agree that in the event of the aforesaid construction, they shall permanently maintain said bridges in safe working order. Said parties further agree to provide, at their expense necessary personnel to operate all turntable bridges at all times. 3/ 12. COVENANTS RUNNING WITH THE LAND; RECORDING. The parties agree that all of the covenants contained in Paragraphs 4, 5, 6, 7, and 8, herein are to be construed as running with the land; that a copy of this Agreement is to be recorded among the public records of Broward County, Florida; and that appropriate reference or specific designation of this agreement is to be made in any instruments of conveyance or development by deed or plat or otherwise, which shall be executed by the MAILMANS, their successors or assigns, as to any property described on pages 1 or 6 hereinabove. 15. BINDING EFFECT. All rights and obligations under this Agreement shall be binding upon and inure to the benefit of and be enforceable by successors, assigns, nominees, heirs and personal representatives of the parties. As the plat for the Development reflects, the Northwest Channel is privately owned by Avatar and has not been dedicated to any governmental entity. 4/ The depth of the water in the Northwest Channel ranges from approximately ten to 12 feet at its shallowest point to approximately 25 feet at its deepest. At present, there are no bridges crossing the Northwest Channel. The Northwest Channel is the only means of access to the Intracoastal Waterway for boats using the DeSoto Waterway north of the Atlantic Shores Boulevard (Northeast 9th Street) bridge in Hallandale (which portion of the waterway will hereinafter be referred to as the "Northern DeSoto Waterway") and the Washington Street Canal west of the culvert crossing at Three Islands Boulevard (which portion of the waterway will hereinafter be referred to as the "Western Washington Street Canal") that are too tall to safely navigate under the Atlantic Shores Boulevard bridge, which is a fixed span bridge and has a vertical clearance of approximately six to eight feet. 5/ The Northern DeSoto Waterway and the Western Washington Street Canal are used by pleasure boaters and water skiers. Neither watercourse has a high volume of traffic. Approximately 35 of Petitioner's members own waterfront homes adjacent to the Development on the other side of either the Washington Street Canal (which homeowners have a Washington Street address) or the DeSoto Waterway (which homeowners have a Diplomat Parkway address). Most, if not all, have docks behind their homes. 6/ They do not have to rely on marine transportation to reach their homes, however, inasmuch as they have easy access to their property by land. One such homeowner is Kenneth Hark, who lives at 1415 Diplomat Parkway. Hark owns a boat, the "Marcy," that he docks behind his home on the DeSoto Waterway south of where it meets the Northwest Channel. The "Marcy" is approximately 34 feet long. With its outriggers extended, it is approximately 30 feet high. It is approximately 18 feet high with its outriggers lowered. Hark uses his boat approximately once a week. Because of the height of his boat, he must traverse the Northwest Channel to get to the Intracoastal Waterway. Rowland Schaefer is another member of Petitioner who lives along the DeSoto Waterway and docks his boat behind his home. His boat is approximately 60 feet long, 17 to 18 feet wide and 25 to 28 feet high. There are other boats that are regularly docked on the Northern DeSoto Waterway and the Western Washington Street Canal. One of these boats is the "My Lady," which is approximately the same height as Hark's boat. Homeowners living along the Northern DeSoto Waterway and the Western Washington Street Canal also occasionally have visitors who arrive by boat. For instance, Hark's next door neighbors have an adult son who, on occasion, comes to their home in a sailboat that is approximately 40 feet in height. Another boat that brings visitors to the neighborhood is a vessel that is approximately 80 to 90 feet long and 25 to 30 feet high. About three to five times a year this boat docks behind the Cowan residence. In mid-December of 1988, Avatar submitted a "short form" application to the Department for a dredge and fill permit to construct a fixed span bridge over the Northwest Channel at Three Islands Boulevard, where the average depth of the water is approximately 15 feet. The proposed bridge would connect the northernmost of the Development's three islands with the southern island that lies to the west of the Venetian Waterway. The project and its anticipated impacts were described in Avatar's response to Item 10 on the application form as follows: The applicant proposes to construct a fixed bridge approximately 220 feet long and 71.25 feet in width to provide access for development of the northernmost island of the Harbor Islands Development community. The proposed bridge will have a vertical navigational clearance of 17.04 feet above mean high water, 19.34 above mean low water, and a horizontal clearance of 51.83 feet between pile caps. There will be no dredging and filling associated with the proposed work, and no significant encroachment of the floodplain will occur. Benthic vegetation along the slopes of the Northwest Channel consist primarily of green algae, including sporadic stolons of Caulerpa sertularioides. In deeper portions of the channel, where light is limited, the benthic substrate is barren. Water quality impacts will be temporary in nature, with turbidity controls such as but not limited to turbidity curtains implemented to ensure that turbidity values do not exceed 29 N.T.U.'s above background. Item 5 on the application form requested the "NAME AND ADDRESS INCLUDING ZIP CODE OF ADJOINING PROPERTY OWNERS WHOSE PROPERTY ALSO ADJOINS THE WATERWAY." Avatar's response was "None." Aside from Avatar there were no other private property owners who owned land adjoining the Northwest Channel. Accordingly, Avatar's response to Item 5, to the extent that it conveyed such information, was accurate. Avatar's application was processed and reviewed by staff in the Department's Southeast District office, who in February of 1989, sent Avatar a letter advising it that the application was incomplete and that additional information and clarification was needed. The letter provided as follows with respect to Avatar's response to Item 5: Item No. 5 was not completed. Please provide the name and address including zip code of the nearest adjoining property owners with waterfront residence. On or about March 8, 1989, Avatar submitted a written response to the Department's February, 1989, letter. The response stated the following regarding "adjoining property owners:" The proposed project is located in the center of a large piece of property owned exclusively by [Avatar]. There are no adjoining property owners. The nearest potential adjoining property owners are located over 2000 feet from the proposed project site. In fact, Avatar did not own all of the property within the Development. It had dedicated certain land to the City of Hollywood and therefore no longer owned the entire property. Among these parcels of land that Avatar had dedicated was Parcel 11. Parcel 11 is located on the northernmost island of the Development a short distance (approximately 250 feet) to the north of the site of the proposed bridge. Furthermore, there were private homeowners with waterfront residences on the DeSoto Waterway and Washington Street Canal, including members of Petitioner, who also owned property less than 2,000 feet from the proposed project site. The Department did not forward a copy of Avatar's application to these or any other homeowners. Neither did it require Avatar to publish notice of the filing of the application. It, however, did send a copy of Avatar's application to the Mayor of the City of Hollywood and the Chairperson of the Broward County Board of County Commissioners, accompanied by a letter advising them of a local government's right to timely file objections to an application for a dredge and fill permit and to request an administrative hearing after receiving the Department's notice of intent to issue the requested permit. Neither the City of Hollywood nor Broward County filed any objections to Avatar's application. Moreover, no member of the general public commented on the application. On May 2, 1989, the Department issued a notice of its intent to grant Avatar's application for a dredge and fill permit (Permit No. 061594966). The notice explained that a person whose substantial interests were affected by the granting of the permit had a right to file a petition for an administrative hearing within 14 days of his or her receipt of the notice and that the Department's issuance of the permit would be considered "final" if no such timely petition was filed. A copy of the notice was mailed to Avatar, as well as the United States Army Corps of Engineers, the Department of Natural Resources, the Broward County Environmental Quality Control Board and the Broward County Property Appraiser. Neither Petitioner nor its members were sent a copy of the notice. There was no publication of the Department's notice. On August 30, 1991, Avatar requested that Permit No. 061594966 be modified to reflect a reduction in the length of the permitted bridge from 220 feet to 130 feet. The plans submitted by Avatar in support of its request indicated that the modified structure would have a vertical clearance of 17.1 feet at mean high water and 19.4 feet at mean low water and a horizontal clearance of 52 feet. In October of 1991, the Department approved the requested permit modification. Avatar was notified of the Department's decision by letter, a copy of which was sent to the United States Army Corps of Engineers, the Department of Natural Resources and the Broward County Office of Natural Resource Protection. The letter described the modification as "minor." Pilings that will support the bridge have already been driven and are in place. If construction of the bridge is completed in accordance with the plans approved by the Department, some boaters who now use the Northwest Channel as their sole means of travelling back and forth between the Northern DeSoto Waterway and Western Washington Street Canal to the west and the Intracoastal Waterway to the east will no longer be able to do so because their boats will be unable to safely navigate under the bridge. While the bridge will not be able to accommodate all of the boats that currently use the Northwest Channel, its vertical clearance is greater than that of the typical bridge crossing a canal in a residential area. To redesign the bridge to raise its vertical clearance several feet would require lowering the design speed to approximately ten to 15 miles per hour, which would pose a potential safety hazard. Navigational problems associated with vertical clearance would be eliminated if Avatar constructed a turntable bridge or a drawbridge instead of a fixed span bridge. Turntable bridges and draw bridges, however, are considerably more costly to build and maintain than fixed span bridges of comparable size. Furthermore, because of concerns regarding incompatibility, they are generally not constructed in residential neighborhoods. Petitioner first became aware of the issuance of Permit No. 061594966 in the spring of 1992, when two of its members visited the Department's Southeast District office and reviewed the contents of the Department's file on the permit, including Avatar's application for the permit and the Department's notice of its intent to grant the application. 7/ After its Board of Directors voted to challenge the issuance of the permit and the membership assented to launch such a challenge, Petitioner filed its request for a formal hearing on the matter. 8/
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Environmental Regulation enter a final order granting Avatar's application for a dredge and fill permit to construct a fixed span bridge over the Northwest Channel as the Department proposed to do in its May 2, 1989, notice of intent to issue Permit No. 061594966. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 31st day of December, 1992. STUART M. LERNER 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 31st day of December, 1992.
Findings Of Fact 1. On or about January 18, 1988, a DOT sign inspector observed Respondent's signs 600 and 625 feet south of Candlewood Drive in Pasco County on what appeared to be the easterly right-of-way of U.S. 19. The right-of-way of U.S. 19 at this location extends 59 feet from the easterly edge of the pavement of U.S. 19. Respondent's signs were 49 feet from the edge of the paved surface of U.S. 19. U.S. 19 is a Federal Aid Primary Highway. Respondent located his signs east of the berm along U.S. 19 which he believed to be off of the DOT right-of-way.
The Issue The issue in this case is whether Respondent, the Southwest Florida Water Management District (District), should grant Environmental Resource Permit (ERP) No. 43023532.000 authorizing Respondent, Florida Department of Transportation (DOT or Department), to construct the Pinellas Bayway Bridge Replacement and associated surface water management system.
Findings Of Fact The Florida Department of Transportation is a state agency charged by statute with the construction, maintenance, and operation of the State Highway System. The Pinellas Bayway Bridge in Pinellas County, Florida, is part of the State Highway System. The Southwest Florida Water Management District is a political subdivision created pursuant to Chapter 61-691, Laws of Florida (1961), which exists and operates under the Water Resources Act, Chapter 373, Florida Statutes. The District has the regulatory authority to implement the ERP program in Pinellas County, Florida. The existing Pinellas Bayway Bridge (the Existing Bridge) is a two-lane bascule structure located within and spanning Boca Ciega Bay, an Outstanding Florida Water. It has three-foot wide walkways on both sides, with no shoulders for the travel lanes. The Existing Bridge connects the cities of St. Petersburg and St. Pete Beach, and was built approximately 40 years ago upon perpetual easements "for public State Road right of way purposes" conveyed in 1960 and 1961 from BOT/IITF to the State Road Department, the predecessor of the Department. The perpetual easements do not contain any restrictions on the perpetual right to construct and maintain a "public state road upon and/or over said land," other than conditions that recognize prior rights of the United States of America and prior grants by the Board of Trustees. The proposed replacement of the Existing Bridge will be located entirely within the boundaries of those perpetual easements. The practice and policy of the Board of Trustees of the Internal Improvement Trust Fund (BOT/IITF), and the Department of Environmental Protection (DEP), has been that, under Section 253.002(1), Florida Statutes, perpetual easements such as those conveyed for the Bayway Bridge are sufficient authorization for expansion of bridges within the boundaries of the perpetual easements. Since the time of construction of the Existing Bridge, the area served by it has transformed from a largely uninhabited barrier island to a densely developed area. The Department has been studying and preparing for replacement of the Pinellas Bayway Bridge since the early 1980's, and studying alternatives since the early 1990's. In the year 2000, with the concurrence of the Pinellas County Metropolitan Planning Organization, the cities of St. Petersburg and St. Pete Beach, and the United States Coast Guard, the Department determined that the best alternative for replacing the Existing Bridge was a fixed-span, high level bridge with four travel lanes and a pedestrian walkway along the southern side of the bridge (the Replacement Bridge or Project). The fixed-span alternative was selected as superior to low-level and mid-level bascule options for superior traffic efficiency, superior access for emergency vehicles, superior emergency evacuation, and improved boat traffic. As part of the design process of the Replacement Bridge, the Bayway Bridge Beautification Committee was formed to provide the Department with input from the residents as to the aesthetics of the Replacement Bridge. The Bayway Bridge Beautification Committee was made up of representatives from the neighborhood and homeowners associations in the area, and submitted a report containing suggested improvements that were incorporated into the ultimate design of the bridge, including lighting, hardscape, and landscape features. Each of the three replacement alternatives (low-level, mid-level, or high-level) would result in the elimination of parking spaces within existing Department right-of-way adjacent to the east and west ends of the Existing Bridge. These parking spaces are intended for the use of drawbridge tenders and Department maintenance vehicles; currently, they also are utilized by fishermen and others recreating on the Existing Bridge. Neither the cities of St. Petersburg nor St. Pete Beach provides public parking in the vicinity of the Existing Bridge. Navigation and Shoaling The height of the Replacement Bridge will allow all boats using the Intracoastal Waterway (ICW) with mast heights of less than 65 feet to freely go under the bridge. Large boats currently must wait for the Existing Bridge to open and have to either circle or move forward and backward while waiting for the drawbridge to open. This will not be the case with the proposed bridge. The fenders lining the channel crossing under the proposed bridge will also be widened to 100 feet from the existing 90 feet. The Replacement Bridge also will be higher in places other than the ICW crossing, including 39 feet high near the west end where Mud Key Channel crosses (versus 9 feet under the Existing Bridge). As a result, more boats will be able to pass under the Replacement Bridge in Mud Key Channel than with the Existing Bridge, and fewer will have to use the so-called Entrance Channel paralleling the south side of the bridge between the ICW and Mud Key Channel. In this respect, the Replacement Bridge will improve navigation. Petitioners contend that additional use of Mud Key Channel, coupled with changes in the ability of boaters to see other boats on the opposite side of the bridge will change, will create a navigation hazard and safety concern for boaters, wading fishermen, and occasional swimmers using Mud Key Channel and the Entrance Channel. As for wading fishermen and occasional swimmers, their activities occur mostly to the south of the extreme western end of the bridge, and boats using Mud Key Channel would pass them whether they pass under bridge at Mud Key Channel or pass under at the ICW and use the Entrance Channel to or from Mud Key Channel. The Replacement Bridge will not increase the number of boats passing by them. As for boaters' ability to see, the Existing Bridge is lower, has more but narrower pilings. The higher Replacement Bridge will have fewer pilings but they will be wider, including 22 feet square pile caps 7 feet high at the water line. In terms of boaters' ability to see through the bridge, the Existing Bridge and Replacement Bride have advantages and disadvantages, depending on the particular circumstances and location of the boats, wading fishermen and occasional swimmers in question. It was not proven that the Replacement Bridge, compared to the Existing Bridge, will create navigation hazards and safety concerns. The Replacement Bridge will extend some 70 feet into the Entrance Channel to Mud Key Channel. Currently, the width of the Entrance Channel is 215 feet, narrowing to 130 feet at the junction with Mud Key Channel. The width of Mud Key Channel at some points is only 100 feet. The Replacement Bridge will narrow the Entrance Channel to a minimum width of 145 feet, will not affect the width at the junction with Mud Key Channel, and will not affect the width of Mud Key Channel itself. The currents in this area are felt least within the Entrance Channel. Boats are currently able to pass each other safely in the Intercoastal Waterway and the narrow confines of Mud Key Channel, which are both narrower than the Entrance Channel will be upon completion of the Project. Boats with masts higher than 65 feet will not be able to go under the Replacement Bridge. Petitioner, Michael T. (Ted) Irwin, has a boat with a 90-foot mast (with radio antenna), which he keeps at his residence north of the bridge site. Once the Replacement Bridge is constructed, he will have to either access the Gulf of Mexico by heading north through Johns Pass, or move his boat to another mooring location. Mr. Irwin testified that Johns Pass, while navigable in his boat, is much more difficult and much less desirable for him than going through the drawbridge at the Existing Bridge. There are over 11,000 boat crossings per year by boats with masts too tall to pass under the Existing Bridge. Of these 11,000, Mr. Irwin's boat accounts for 20 to 60 of those crossings. Mr. Irwin testified that there are three or four other boats in the area with masts taller than 65 feet. Even assuming that those boats are kept north of the bridge site, which was not clear from the evidence, there was no evidence as to the extent to which those boat owners would be inconvenienced by having to use Johns Pass, or as to whether they could make suitable alternate arrangements. Clearly, the Replacement Bridge will have some impact on navigation. While the Replacement Bridge will require Mr. Irwin to change his current boating practices, and while the Entrance Channel will be narrower, the impact on navigation in the area will generally be positive. For the vast majority of boaters, boat traffic will move more freely through the area and, at least in some circumstances, with better visibility. With respect to sediment transport or shoaling, the Department introduced evidence in a bridge hydraulics report showing that the Replacement Bridge would not experience scour around the pilings during either a 100- or 500-year storm event. In addition, there was expert testimony that harmful erosion or shoaling would not occur as a result of the Project. Petitioners offered only speculation on the likelihood of erosion or shoaling, candidly admitting that their concern was that such conditions "might" occur. There is an undisputed evidentiary basis to conclude that sediment transport or shoaling will not occur around the Replacement Bridge. Fishing and Recreation People currently fish from the Existing Bridge using the two three-foot wide catwalks. Although not designated for public parking, people who do not live within walking distance of the bridge site currently park on either end of the Existing Bridge within the Department's right-of-way. All of these parking spaces will be eliminated by the Replacement Bridge; but they would be eliminated under all designs considered, including a low level drawbridge. Other bridges in immediate vicinity are not used for fishing due to lack of nearby parking. Fishing will be allowed from the Replacement Bridge from the single 11-foot wide multi-use path along the south side of the Replacement Bridge. While the multi-use path will allow fishermen and other users to get farther away from passing car traffic, fishing on strong incoming (south-to- north) tides will be less desirable from the south side of the Replacement Bridge, and the higher bridge elevations also will make fishing generally less desirable. There are several other locations within 20 minutes of the Existing Bridge that are available for fishing by the public. In particular, the fishing pier at the old Skyway Bridge in southern Pinellas County is specifically designated for public fishing, as are several other locations. The Replacement Bridge's multi-use path also will be more user-friendly for people who want to walk or bike across. Also, the path will continue from the bridge site to the intersection of State Roads 679 and 652, providing a safe sidewalk where none currently exists. The path will ultimately tie into a trail system linking the area to Fort DeSoto Park. The Replacement Bridge will also be more wheelchair accessible than the Existing Bridge. Water Quality Boca Ciega Bay is an Outstanding Florida Water. The ambient existing water quality in Boca Ciega Bay meets the standards which are applicable to that waterbody in the location of the Replacement Bridge, as demonstrated by the water quality data gathered from Pinellas County and by the Department. Such data were comprised of dissolved oxygen readings from the County and the analysis of water samples provided by the Department. Petitioners questioned whether such water quality data were sufficient, but testimony from District experts demonstrated the sufficiency of these data. Petitioners introduced no evidence to indicate that water quality does not meet standards in the vicinity of the Project. Within the limits of the Project, including the bridge site, the western approach to the bridge, and State Road 679 to the intersection of State Road 652 of the eastern side of the bridge site, there currently is a very limited amount of surface water runoff treatment. Although the project will involve adding several acres of impervious surface, after construction there will be less untreated surface water runoff than exists currently. The proposed treatment system will primarily involve three ponds: two lined effluent filtration ponds along State Road 679; and a wet detention pond located adjacent to the Sunshine Skyway Bridge, known as the compensation pond. The compensation pond is proposed because there is not enough right-of-way in the project area to build ponds or other treatment systems to treat the runoff from the Replacement Bridge. The compensation pond will treat surface water runoff from the Skyway Bridge that today is discharged untreated into the same Outstanding Florida Water, Boca Ciega Bay. The two effluent filtration ponds will be lined with an impermeable material up to the level of seasonal high ground water elevations within the vicinity of those pond sites to prevent groundwater drawdown and prevent interaction between water in the pond and groundwater. DOT introduced detailed site plans, engineering studies and credible expert engineering testimony that the three stormwater treatment ponds will detain stormwater runoff in a manner that complies with the presumptive criteria in the District's Basis of Review. In addition, the two effluent filtration ponds have been oversized so as to treat 100 percent more volume than is required for treatment systems discharging into Outstanding Florida Waters. Less untreated surface water runoff will be discharging into Boca Ciega Bay after construction than is today. Further, much of the impervious area to be added will not be automobile travel lanes, and these areas will not generate the heavy pollutant loadings associated with the travel lanes. In addition, the pollutant loading from the travel lanes on Replacement Bridge will be less than from the Existing Bridge. At the Existing Bridge, pollutant discharge into Boca Ciega Bay occurs in several ways. First, oils and greases from the actual drawbridge mechanism itself drip straight down into the Bay. With the elimination of the drawbridge, this discharge will stop. Second, stopped cars and trucks waiting for the drawbridge to open and close drip oils and greases onto the roadway in greater concentrations than traffic which is moving. This was evident by examining photographs of the travel lanes on either side of the drawbridge, and the dark staining of the roadway where traffic is stopped. With no drawbridge to stop traffic, less oil and grease will be discharged. Third, boats waiting for the existing drawbridge to open also discharge undetermined amounts of uncombusted gasoline and oil into the water. (Generally, their engines are kept running and in and out of gear to maintain steerage while waiting for the bridge to open.) Those boat engines will have to run for less time in the vicinity of the Project if the boats do not have to wait for the existing drawbridge, thus reducing the discharge of uncombusted gasoline and oil into the Bay. Another boost to water quality will occur as a result of the mitigation for the Project. District rules allow impacts to wetlands and other surface waters to be mitigated, and the Department does so in accordance with the program set forth in Section 373.4137, Florida Statutes. That program calls for the Department to contribute a dollar amount to the District based upon the expected acres of wetlands and other surface waters impacted by the project. Mitigation provided for this purpose in accordance with Section 373.4137, Florida Statutes, and approved by the Secretary of DEP, is deemed to satisfy mitigation requirements. In this case, the mitigation project to compensate for impacts by the Replacement Bridge to sea grass beds within the affected surface waters is a water circulation project at Fort DeSoto Park, located at the southern end of Boca Ciega Bay, in the same receiving waters where the impacts will occur. The project consists of opening a dead-end section of the Bay created by the SR 679 causeway to Fort DeSoto Park to improve water flow. Improved water flow will improve dissolved oxygen levels, which in turn will improve conditions for sea grasses, which will in turn lead to more dissolved oxygen. This Project has been approved by separate final order by DEP, satisfying the mitigation requirement. In addition, the Department and the District demonstrated that the mitigation project will improve water quality in the receiving waters. The Project will not degrade water quality in Boca Ciega Bay, and the record is also clear that the Project will actually improve water quality in the Bay. This means that the Project is consistent with the Surface Water Improvement Management Plan adopted by the District, which calls for improved water quality and increased sea grasses. Petitioners called no witnesses with respect to the water quality issue. Although Petitioners listed a water quality expert, James Shirk, as a witness in answers to interrogatories, and even though Respondents deposed Mr. Shirk; Petitioners not only decided not to call Mr. Shirk as a witness, they objected to introduction of Mr. Shirk's deposition into the record of the case. In their PRO, Petitioners criticized a lack of studies to determine the efficacy of proposed Ponds 1 and 2 and the Compensation Pond. They also criticized a lack of studies of water quality impacts of untreated discharges from a 18-inch pipe to be constructed at the western end of the bridge. They argue that, due to the asserted lack of studies, reasonable assurances were not given either that the Project will not degrade water quality or that it will result in a net improvement in water quality. But, based on the evidence in this case, studies of the kind Petitioners want to require were not necessary to prove that the Project will not degrade water quality but rather will result in a net improvement in water quality. In their PRO, Petitioners also cited the deposition testimony of Jeremy Craft that Ponds 1 and 2 discharge into Class III waters "in the vicinity of a Class II water body" and criticized the lack of a "plan or procedure with respect to protection of the Class II waterbody that demonstrates that the regulated activity will not have a negative impact and will [not] result in violations of water quality standards in such Class II waters, as required in the District's Basis of Review [BOR] Section 3.2.5(b)." But there was no other evidence that Ponds 1 and 2 will be a "regulated activity" or "system" that is "adjacent or in close proximity to Class II waters." To the contrary, the evidence that the nearest Class II waters were over a mile away from the Project site and would not be affected negatively by the Project. Similarly, Petitioners in their PRO contend that the Compensation Pond "discharges to Class II waters and waters that are prohibited for shellfish harvesting" and that "[t]here has been no plan or procedure provided with respect to protection of that Class II waterbody that demonstrates that the regulated activity will not have a negative impact on Class II waters and will not result in violations of water quality standards in such Class II waters, as required in the BOR Section 3.2.5(a) and (b)." The basis cited for this criticism was reference to "Shellfish Harvesting Area Classification Map #42 (Effective: June 18, 1997)," that appears to show the Compensation Pond adjacent to or in close proximity to an area where shell fishing is prohibited. There was no testimony explaining the map, which did not purport to map Class II waters. In any event, if the Compensation Pond is "adjacent or in close proximity" to Class II waters which are not approved for shellfish harvesting, and if it is considered to be the "regulated activity" or "system," creation of the Compensation Pond to treat previously untreated discharges will not have a negative effect on Class II waters or result in violations of water quality standards in the Class II waters. Petitioners in their PRO also cite the Final Roadway Soil Survey and Stormwater Pond Report (Report) prepared by the Department's consultants for the purpose of establishing the fact: "Groundwater data beneath the roadway near the east end of Pond 2 indicate that the seasonal high groundwater table is between 4.0 and 4.5 feet, NGVD." Although never made explicit, Petitioners' PRO seems to raise the specter that the liner for this pond was deficient because it only came up to 2.5 feet, NGVD. No witness explained where the Report establishes the "seasonal high groundwater table" "beneath the roadway near the east end of Pond 2," or if it even does. It appears that Sheet 9 of Appendix B of the Report indicates a single datum point of groundwater at approximately 4.0 feet, NGVD, on June 1, 2002; meanwhile, Table 4 of Appendix A of the Report also states that the "Estimated Seasonal High Groundwater Table" at the same location is at the "Approximate Elevation" of 1.2 feet, NGVD. In any event, even assuming that the "seasonal high groundwater table" "beneath the roadway near the east end of Pond 2" were 4.5 feet, NGVD, all of the expert testimony on the subject of the liner was that it came up high enough to function properly in the location of Pond 2. The last water quality issue raised in Petitioners' PRO addresses the amount of impervious surface runoff treated under the Replacement Bridge Project. Specifically, Petitioners seem to contend that BOR 5.8(b) was interpreted to only require treatment of the runoff contributed by the two additional automobile travel lanes provided by the Replacement Bridge Project; the area of the existing travel lanes and the multi-use path was not figured in the calculation. While not clearly explained, the expert testimony was that the Project met the requirements for water quality treatment under both BOR 5.2.e. and BOR 5.8(b) and (c). BOR 5.2.e. requires projects discharging into Outstanding Florida Waters to provide treatment for a volume 50 percent more than otherwise required for the selected treatment system. BOR 5.8(b)1. requires that, for "off-line treatment systems and on-line treatment systems . . . which provide storage of the treatment volume off-line from the primary conveyance path of flood discharges," the contributing area to be used in calculating the required treatment volume is the area of new pavement. It appears that BOR 5.8(b)1. was used for the parts of the Project not treated by Ponds 1 and 2. The "area of new pavement" was considered, for purposes of BOR 5.8(b)1. to be just the new travel lanes; the area of the multi-use path apparently was not added for purposes of BOR 5.8(b)1. because it would not be expected to add much, if any, pollutant loading. In addition, BOR 5.8(c) provides: When alterations involve extreme hardship, in order to provide direct treatment of new project area, the District will consider proposals to satisfy the overall public interest that shall include equivalent treatment of alternate existing pavement areas to achieve the required pollution abatement. While also not clearly explained, the expert testimony was that BOR 5.8(c) also applied and was met by the Project.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Southwest Florida Water Management District enter a final order approving the application of the Florida Department of Transportation for Individual Environmental Resource Permit No. 43023532.000. DONE AND ENTERED this 25th day of November, 2003, in Tallahassee, Leon County, Florida. S ___________________________________ J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of November, 2003. COPIES FURNISHED: Robert C. Downie II, Esquire Assistant General Counsel Department of Transportation 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0458 William D. Preston, Esquire 2937 Kerry Forest Parkway Suite B-1 Tallahassee, Florida 32309-6825 Steve Rushing, Esquire David C. Ryder, Esquire Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34604-6899 E.D. "Sonny" Vergara, Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899
