Findings Of Fact On or about March 3, 1976, the Board served its Administrative Complaint upon the Licensee. On May 18, 1976 the Licensee filed its Answer to the Administrative Complaint. The final hearing in this case was scheduled by Notice dated April 13, 1976, and was rescheduled by Notice dated May 27, 1976. John C. Ledbetter holds Certified General Contractor's License No. CG C5281 issued by the Florida Construction Industry Licensing Board. The Licensee Ledbetter has been a certified contractor at all times relevant to this proceeding. The Licensee was the co-developer of a condominium project known as Ocean Palm Villas South or Ocean Palms Riverfront Condominium. Gerald M. Hadley, Sr., a certified contractor was initially listed as the general contractor for the project. Later Neil Wayne Smith was designated the general contractor. Smith was discharged as the general contractor, and by letter dated June 11, 1973 the Licensee notified the North Peninsular Zoning Commission that he would be substituted as the general contractor. Shortly thereafter Gerald M. Hadley was again designated the general contractor, and the change was acknowledged by the forth Peninsular Zoning Commission by letter dated August 28, 1973. Construction on Ocean Palm Villas South did not commence until after August 28, 1973. No construction was undertaken during the time that Ledbetter was designated as the general contractor. The general contractor was responsible for installation of the walls in Ocean Palm Villas South. A subcontractor was utilized to install the dry wall, but the wall construction was supervised by the general contractor. The original plans called for use of 5/8" thick gypsum wallboard. The wall units were to be installed in the manner depicted in Board Exhibit 5. The gypsum was to be nailed on either side of 4" studs, with insulating material laid between the studs. 5/8" gypsum was not available to the general contractor. 1/2" gypsum wallboard was utilized. A new wall assembly was planned. With this assembly gypsum wallboard was nailed to studs, but the wallboard on the other side of the wall was nailed to alternately interspaced studs. Insulating material was woven between the interspaced studs. (See: Board Exhibit 3). The decision to use this assembly was made by Gerald A. Hadley, a labor foreman. Hadley's father was the general contractor, and was consulted in making the decision. A Mr. Rasmussen, the building inspector, was consulted about the wall assembly, and he gave his approval. At the time that construction was under way on the Ocean Palm Villas South project, the 1965 Edition with Revisions of the Southern Standard Building Code was in effect in the North Peninsular Zoning District of Volusia County. The Ocean Palm Villas South project lied within that district. The wall assembly utilized by the general contractor does not precisely follow any of the assemblies set out as appropriate in the code. The wall assembly utilized does, however, meet the one hour fire resistance standard required by the code. There was no evidence presented at the hearing from which it could be concluded that the Licensee Ledbetter had any knowledge of the wall assembly utilized in this project other than what was set out in the original plans. Ledbetter was not the contractor for the project when the assembly was constructed.
The Issue Is the Department of Juvenile Justice's (DJJ's) intended award of the lease-purchase contract pursuant to RFP-P6P02 to The Haskell Company (Haskell) instead of to 241 Development Corporation (241 or 241 Development) contrary to the Agency's governing statutes, rules or policies, or the proposal specifications? See Section 120.57(3)(f), Florida Statutes, (Supp. 1996).
Findings Of Fact On or about April 9, 1997, DJJ offered RFP Number P6P02, "Lease Purchase Agreement for a Multi-Program Juvenile Residential Facility." DJJ subsequently issued four addenda including responses to inquiries. The RFP solicited proposals for the lease/purchase of a residential juvenile detention facility (Project). It sought proposals to co-locate four single-sex facilities on the same grounds: a 60-bed moderate-risk (level 6) half-way house for males; a 60-bed moderate-risk half-way house for females; a 40- bed high-risk (level 8) intensive half-way house for females; and a 25-bed high-risk intensive half-way house for males. (RFP Section I. b)) In addition, DJJ required proposers responding to the RFP to include a fifth program, consisting of a 60-bed high- risk intensive half-way house for males, which would be constructed only if DJJ chose to exercise the option to do so. Proposals were limited to 100 pages in length. However, graphic information presented by proposers was not included within the 100 page limitation. (RFP Section V. c)) The RFP required proposers to locate a site for the facilities and to present a design concept narrative and conceptual facility design drawings. (RFP Sections VII. e) 1. and f) 1.) DJJ's RPF expressly notified potential proposers that all costs associated with the site development, permitting, zoning, design, construction, and project management shall be born solely by the proposer, and not by DJJ. (RFP Section III. c) and VII. e) 2.) The RFP also notified proposers that final site plan design and final floor plans would be a "joint effort" of DJJ and the selective proposer. (RFP Section VI. b) and Section VII. f) 3. j)). Following issuance of the RFP in April 1997, four addenda were issued by DJJ responding to various concerns raised by potential proposers and extending the initially scheduled bid opening. No protests were filed by any person to the terms and conditions of the RFP or to any of the addenda. These items therefore constitute unchallenged "specifications." The RFP, as amended, contemplated completion of design and construction within 250 days. (Joint Exhibit 2, Addendum 4 at 2)) A pre-proposal conference was held on May 15, 1997. The RFP made provision for questions regarding the RFP to be submitted to DJJ in writing and indicated that such questions would be answered in addenda to the RFP (RFP Section 3.k)). Questions received by DJJ, whether orally or in writing, were reduced to writing and the questions and answers were distributed to potential proposers. DJJ opened the proposals on June 19, 1997. Timely proposals were submitted by 241; Haskell; Kvaerner Construction, Inc.; Osborne & Co.; and Arthur. On July 11, 1997, the proposals of Arthur; Kvaerner Construction, Inc.; and Osborne & Co. were rejected by DJJ as on- responsive. DJJ, in the person of Steven Meredith, DJJ's contract manager for this Project, determined that the proposals of 241 and Haskell were each baseline or facially responsive to the RFP. This remains DJJ's official position. DJJ subsequently reversed its determination that Arthur's proposal was non-responsive and submitted it to the Evaluation Committee for scoring along with the 241 and Haskell proposals. Mr. Meredith was not a member of DJJ's Evaluation Committee. Members of DJJ's Evaluation Committee were Mike Dunn, Judy Haynes, Edward Joel Hill, Julie Newberry, and Mae Bell Washington. Ms. Haynes, Mr. Hill, and Ms. Washington testified at formal hearing. Because the RFP limited the proposal length to 100 consecutively numbered pages (exclusive of graphical information), any pages in excess of the 100 page limit were not forwarded by Mr. Meredith to the Evaluation Committee; however, in making his referral, Mr. Meredith relied on the page numbers assigned by each proposer, and did not go behind the numbering assigned by each proposer. On August 27, 1997, DJJ publicly posted a Notice of Intent to Award the Project to 241. Subsequently on the same date, DJJ removed this notice and posted notice of its intent to re-post the award. The proposed award was based on the scoring of the proposals for both substantive content and rental rates offered. In the August 27th posting, 241 was mistakenly determined to have achieved the highest score of the three proposals evaluated, 72.6 points as compared to 65.7 points for Haskell. A summary of the scoring of the contents of the application was attached to the posting, as was a copy of the present value analysis of the proposed rental rates offered by the respective proposers. DJJ performed the present value analysis using a Excel spreadsheet computer program. Within a few hours after posting, Mr. Meredith was notified by two DJJ employees that there was an error in calculation for the present value for Haskell. Mr. Meredith re- calculated the present value of the lease rates proposed by Haskell, which had the effect of changing the score assigned to the Haskell proposal for the proposed lease rates from 15.3 to 24.3 points. The change was significant enough to change the total score assigned to the Haskell proposal from 65.7 points to 74.7 points, resulting in the Haskell proposal being the highest scoring proposal. On August 28, 1997, Arthur filed a Notice of Protest of the intended award of the contract to 241. DJJ's basis for re-posting its Notice of Intent to Award the contract to the Haskell Company was that it had improperly evaluated the present value of the lease payments under Haskell's bid, which resulted in the bid being protested. On August 29, 1997, DJJ publicly posted its Notice of Intent to award the Project to Haskell. On that "re-posting," Haskell was the highest ranked proposer with 74.7 points. 241 was second-ranked with 72.6 points. Arthur did not file a Notice of Protest or Formal Written Protest of the intended award to Haskell. On September 10, 1997, Arthur withdrew its Notice of Protest for the intended award to 241. 241 timely filed its Notice of Protest and timely filed its Formal Written Protest of the intended award to Haskell pursuant to Section 120.57(3), Florida Statutes. With its Formal Written Protest, 241 delivered to DJJ a $5,000 bond. On September 12, 1997, Haskell filed its Motion and Petition to Intervene, alleging that 241 lacked standing because 241's proposal was unresponsive. On September 18, 1997, DJJ referred the case to the Division of Administrative Hearings. Haskell was granted intervenor status, and by Order of October 13, 1997, Haskell's Motion for Summary Recommended Order and Motion to Dismiss [241] for Lack of Standing was denied. The Project could be located anywhere in Florida. The 33-acre site proposed by 241 is located in the City of Gretna, Gadsden County. The 21.75-acre site proposed by Haskell is located in St. Johns County. The RFP contained no minimum or maximum site size requirement, and a smaller or larger site is not necessarily advantageous to DJJ, provided the RFP's mandatory and material specifications are met. No site inspection by DJJ personnel was contemplated by the RFP. Therefore, the necessity for accuracy, honesty, and threshold completeness of each bid proposal was all the more essential since the Evaluation Committee would be rating the relative merits of the respective facially responsive proposals. Section IV of the RFP bears the title, "SPECIAL CONDITIONS AND MANDATORY REQUIREMENTS." Section IV of the RFP mandated specific items that had to be included with the proposal in order for it to be considered baseline or facially responsive. Section IV provided, in pertinent part: The following special conditions are mandatory requirements that must be complied with as a condition of submitting a responsive proposal. Failure to comply with any of the following mandatory requirements shall result in proposal rejection for nonresponsiveness. The Agency reserved the right to waive "minor irregularities." "Minor irregularities" were defined in the RFP in relationship to the Agency's retaining the right to reject all bids. See RFP Section III. GENERAL PROVISIONS m) Right to Reject and RFP Section V. PROPOSAL SUBMISSION REQUIREMENTS j) Acceptance of Proposals, each of which provides: The department reserves the right to reject any or all proposals and to waive minor irregularities when to do so would be in the best interest in the State of Florida. Minor irregularities are those which will not have a significant adverse effect on overall competition, costs, or performance (of the contract). Mandatory Zoning Requirement Section IV. d) of the RFP provides: Mandatory Zoning Requirement. In order for a proposal to be considered responsive, at the time of proposal submission, the proposal must contain adequate evidence of existing compliance with local zoning laws for the use intended by the department or evidence of variance for the use intended by the department. The proposal shall contain proof that the proposed parcel is properly zoned. The proof must be in the form of a letter from the zoning or planning department of the county in which the parcel is located. The submission shall also contain a corresponding county or zoning authority description of the permitted uses of the parcel. Letters of intent to obtain zoning are not adequate evidence of an existing zoning for purpose of this requirement. (Underlining in original; boldface supplied) The boldface language of this specification demonstrates that this specification is a determinor of baseline or facial "responsiveness" and a mandatory and material specification of the RFP. The foregoing specification addresses current zoning. It does not address current or future Comprehensive Plan or land use functions. It is discussed here with regard to 241 because Haskell contended that if 241 had failed to submit mandatory zoning information, then 241 lacked standing to proceed with its protest, and because 241's protest specifically alleged that Haskell's proposal was unresponsive on this specification.1 241's proposal contained a "Mandatory Zoning Compliance Affidavit," executed by the Mayor of the City of Gretna. It certified that the applicable local land use laws "will permit the use of the Property as a Multi-Program Juvenile Residential Facility operated by the Florida Department of Juvenile Justice," but it does not list any other permitted uses of the parcel. It does not state the applicable zoning classification or the future land use classification. The Gretna City Commission had met on June 18, 1997, the day prior to proposal submittal to DJJ, and voted to authorize the use of the site proposed by 241 for the Project. This City Commission approval is memorialized in the affidavit executed by Gretna's Mayor which was included within 241's proposal. At the same meeting, the City Commission likewise approved an option agreement for 241 to purchase the site from the City of Gretna. Relevant portions of the option to purchase also were included in 241's proposal. Both the option agreement and the affidavit refer to the legal description of the 241 site as "Exhibit A," also included in 241's timely proposal. Although no county declarations were included in 241's proposal, Mr. Meredith, on behalf of DJJ determined that 241 had substantially complied with Section IV. d) of the RFP and its proposal therefore was baseline or facially responsive. He did not alter this opinion at formal hearing. At formal hearing, evidence showed Gretna has developed its own Comprehensive Plan. Gretna does not utilize a separate zoning map but uses the applicable Future Land Use Map (FLUM) from its Comprehensive Plan in place of a separate zoning map. This map is used with the districts established in the Land Development Code (LDC), and each zoning district corresponds to a land use category on the FLUM with a list of permitted and prohibited uses. Where the zoning district does not expressly prohibit or permit a particular use, the Gretna City Commission decides. Gretna has no specific use category for juvenile detention facilities, and the 241 site is within the FLUM's "Industrial" category. However, the deposition of Gretna's Mayor confirmed that 241 needs no additional approvals to locate the Project on the proposed site. In light of Gretna's pre-bid opening specific authorization of 241's proposed Project on the site, Haskell's evidence and arguments that "Industrial" versus "Public Use" designations on the FLUM and LDR prohibit this project are not persuasive that 241's proposal is either nonresponsive to Section IV. d) of the RFP or that 241's proposal cannot be accomplished due to existing zoning restrictions. The City has already authorized the Project on a site the City as seller is optioning for sale to 241, at a location in close proximity to an existing adult correctional facility.2 In addressing Section IV. d) of the RFP, Haskell's timely proposal included a June 16, 1997, letter from the St. Johns County Planning Department which addressed both zoning and land use status of Haskell's proposed site. This letter was signed by County Planning Technician Heather Morris. It referred to Parcel No. 038480-0010 and indicated that the parcel was zoned "Open Rural." The Haskell proposal also included a list of permitted uses within the "Open Rural" classification, including "governmental uses." Ms. Morris' letter referenced "Exhibit A" as a site plan, but no "Exhibit A" accompanied Ms. Morris' June 16, 1997, letter in Haskell's proposal. Nonetheless, the parcel number on Ms. Morris' letter matched the parcel number in the property information paragraph on page 9, under "Site Information," in Haskell's proposal, and in the Purchase Sale Agreement for the Haskell site also submitted within the Haskell proposal. Evidence at formal hearing showed the original "Exhibit A" to the June 16, 1997, Morris letter to be merely a hand-drawn approximation of the proposed site layout. However, Section VII. j) of the RFP provided that site approval would be a "joint effort" of DJJ and the proposer DJJ ultimately selected. Thus, however characterized, "Exhibit A," and even all refinements up through actual opening of the facility, are not necessarily final site layouts. Ms. Morris' June 16, 1997, letter also indicated that the subject site was within "Mixed Use" and "B Reserve Residential" classifications on the St. Johns County Comprehensive Plan's FLUM and that the use of the property for a juvenile residential treatment facility, "owned and operated by the state of Florida" was consistent with both "Open Rural" zoning and "Mixed Use" future land use districting. Despite considerable testimony that Ms. Morris' June 16, 1997, letter may have been in error in stating that Haskell's proposal and proposed site evidence existing compliance with current local zoning laws and land use functions for the use intended by the Agency and despite testimony that several months may be necessary to finalize county "authorization" to construct the proposed facility, the fact remains that Ms. Morris and St. Johns County have not altered the opinion given by Ms. Morris in her June 16, 1997 letter. A second letter was issued by Ms. Morris on September 16, 1997, following filing of 241's protest herein. That letter confirms that the site plan submitted with Haskell's timely proposal remains consistent with both the zoning and future land use designations for the subject site, and that St. Johns County's position is unchanged by any refinement in the site plan. Likewise, the current Planning Director of St. Johns County testified that the Haskell site "has been and still is" considered a "Mixed Use" district by St. Johns County. Under the St. Johns County Comprehensive Plan, "the interpretation of the Plan and Maps by County staff shall consistently be afforded appropriate deference and will not be overturned in the absence of clear and convincing evidence of misapplication of applicable criteria." Upon the foregoing findings of fact, the evidence and 241's arguments that Haskell was not responsive to the RFP's mandatory zoning requirement and that existing zoning or land use functions currently in effect will prohibit a joint permitting and construction effort by Haskell and DJJ are rejected as neither competent nor substantial and as unproven and unpersuasive. Haskell's Control of Property Section IV. c) of the RFP addresses "control" of the proposed site by the actual proposer as follows: Control of Property. This pertains to the site of future structure(s) and proposed parking areas. To submit a responsive proposal, a prospective lessor must provide evidence of the following with the proposal. Be the owner of record of the site of the proposed facility and parking areas; In lieu of ownership, the proposing entity may possess an Option to Purchase the facility (as defined in Section III) being proposed and submit documentation of such option to Purchase the facility from the owner of record with a copy of the Deed(s), Bill of Sale, etc. A copy of the recorded deed resulting from option exercise must be presented to the department within 60 days of notification of contract award. Under no circumstances will documents be accepted after the 60- day period; and, Submit a copy of the General Warranty Deed (Underlining in original; boldface supplied). The boldface language clearly demonstrates that in order to submit a responsive proposal, "the proposing entity must possess at the date of bid opening an Option to Purchase . . . and submit documentation of such option . . . from the owner of record with a copy of the Deed(s) . . . etc." In this case, the proposing entity is "The Haskell Company." (See Letter of Interest pages 1-2 of Haskell Proposal and the PUR). Pages 15-19 of Haskell's proposal were directed towards meeting specification IV. c) and establishing control. Pages 15-17 constituted a Purchase Sale Agreement (option to purchase) between "Seller," Jessee [sic] Minors, and "Purchaser," Christopher S. Parks, signing on behalf of Haskell Realty Developers Ltd. V. Pages 18-19 constituted a Special Warranty Deed in Jesse Minor's name. Page 9 of the proposal recites that, "The project site, which is approximately 21.75 acres, has been purchased by The Haskell Company (Haskell Realty Developers V, Inc.) for the purpose of developing this project." Also, Attachment A (pricing proposal) of Haskell's proposal shows "Haskell Realty Developers V, Inc." (Lessor) typed on a line which required, "If lease is to be written in a name other than proposer, indicate proposer name." Page 9 and pages 15-19 of Haskell's proposal contradict each other. Mr. Meredith apparently placed no reliance on the page 9 representation that the parcel already had been purchased. Since all of the remaining proposal documentation clearly shows that Haskell has not yet purchased the subject site and since Mr. Meredith was in no way misled by the representation on page 9 of Haskell's proposal, the language found there that the parcel had already been purchased should not disqualify Haskell's entire proposal. 241's allegation that some of Haskell's control documents do not match each other as to the parcel or legal description proposed is rejected as unproven. The Purchase Sale Agreement may encompass more land than Haskell's proposal offered DJJ, but no portion of the property offered DJJ is excluded from the land named pursuant to the Purchase Agreement attached to Haskell's proposal. Mr. Meredith had noted the difference in entities named throughout the Haskell proposal, but he assumed they were identical and therefore determined that the Haskell proposal was responsive on the baseline responsiveness requirement of "control," prior to passing the proposals on to the Evaluation Committee members for their review. At formal hearing, Mr. Meredith testified as DJJ's Agency Representative that if the entities named in the Haskell proposal were not the same, the Agency would not consider Haskell's proposal to be responsive. At formal hearing, The Haskell Company's Vice President, Christopher S. Park, admitted that typed references in its proposal to "Haskell Realty Developers V, Inc.," were wrong. Haskell had intended those references to be, "Haskell Realty Developers Ltd. V," a limited partnership. At formal hearing, it was shown that an entity of "Haskell Realty Developers V, Inc." has never existed. Official corporation records of the Florida Secretary of State show that on April 25, 1997, "Haskell Realty Developers Ltd. V" filed an Amended and Restated Certificate of Limited Partnership. The only change to its previously-filed Certificate was to reflect a new General Partner, "Utility Roofing and Construction, Inc." The original Certificate shows 17 limited partners, all of whom are individuals. There is neither documentary nor direct competent evidence that the proposing entity, "The Haskell Company" directly controls "Haskell Realty Developers Ltd. V" or derivatively controls "Haskell Realty Developers Ltd. V" through Utility Roofing and Construction, Inc.3 Accordingly, the Haskell proposal was unresponsive in demonstrating control by the proposer of the proposed Project site. Moot Issues Due to the foregoing Findings of Fact, it is unnecessary to address the remainder of the evidence or 241's additional arguments as to any other alleged lack of responsiveness of Haskell's proposal or flaws in DJJ's evaluation of Haskell's proposal. 241's Responsiveness Considered De Novo The only lack of responsiveness alleged against 241 by the pleadings was on the issue of "The Mandatory Zoning Requirement," as set out above. However, in the context of this de novo proceeding under the amended Section 120.57(3)(f), Florida Statutes, it would remiss not to address 241's proposal's omission of a financial statement by its proposed contractor.4 Section V of the RFP addresses PROPOSAL SUBMISSION REQUIREMENTS. Under Subsection i)2.d. thereof, a proposal submission requirement for the proposer's construction contractor is a "Completed Experience Questionnaire and Contractor's Financial Statement (Revised 4/95)." This requirement was also listed under Part B on Attachment B, the "Essential Requirements Checklist." Attachment B was provided to all potential proposers as part of the RFP. Despite some "mere convenience" language on Attachment B,5 Section V of the RFP appears to make the dual requirement of a contractor's questionnaire and financial statement mandatory. Section V.2.b.1. states, in pertinent part, Volume II Shall contain items required for A/E and contractor submittal as outlined in Attachment B. Section V.i.2. states, with regard to the contractor information on page 14: Proposal must comply with these instructions and include the requested data. Mr. Meredith, who participated in drafting the RFP and who reviewed the submitted proposals for facial responsiveness, clearly treated the inclusion of a completed construction contractor's questionnaire and financial statement as a mandatory requirement. In order to assess baseline or facial responsiveness, Mr. Meredith created his own "Essential Requirements Checklist" (Joint Exhibit 6) which he testified was based on RFP Section IV's SPECIAL CONDITIONS AND MANDATORY REQUIREMENTS. However, he acknowledged that other RFP items outside Section IV also might affect responsiveness, and his checklist (Joint Exhibit 6) also included as item 15) d), "Completed Experience Questionnaire Contract's [sic] Financial Statement," as a responsiveness requirement. In his review for baseline or facial responsiveness of each proposal, Mr. Meredith checked off both 241 and The Haskell Company as complying with this requirement. However, the evidence adduced at formal hearing shows that 241 submitted its contractor's experience questionnaire but not its contractor's financial statement. 241's contractor, Opus South, expressly declined to provide the required financial information for inclusion in 241's proposal, citing its "strict corporate policy" against making its financial statements public. It suggested that it be contacted for further information, but such contact would clearly be outside of the proposal and would amend the proposal after opening. DJJ Evaluation Committee members assigned different scores in the area of financial capability. It can only be concluded that the RFP contemplated the contractor's financial statement as being a mandatory specification, and the evidence as a whole does not indicate that the Agency, either in the person of Mr. Meredith or the Evaluation Committee members, made a conscious decision to waive the RFP requirement for a contractor's financial statement pursuant to the RFP reservation of a right to waive minor irregularities.6 Also, the evidence in this cause does not affirmatively demonstrate that the absence of a contractor's financial statement could constitute a "minor irregularity" which will not have a significant adverse affect on overall competition, costs, or performance. Other proposers who actually submitted contractors' financial statements would be prejudiced if this requirement were waived. A contractor whose financial situation is not known may affect costs and performance of a contract. Waiver of this requirement clearly would be contrary to competition and have a potential adverse affect on costs and performance. Accordingly, it must be determined upon the evidence adduced in the de novo formal hearing, that 241 was also unresponsive to the RFP as written.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Juvenile Justice reject all bids and re-advertise for the subject Project. RECOMMENDED this 11th day of December, 1997, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 11th day of December, 1997.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: The respondents J. David Wood and Diane C. Wood are the record owners, as trustees, of a certain parcel of land located in Levy County in the vicinity of Cedar Key, Florida. The Notice of Violation issued by the Department of Environmental Regulation alleges that the respondent Ray E. Dugan is the record owner of lands located immediately adjacent to the the Wood's land. No evidence was received or offered at the hearing to support this allegation, and no appearance was made by the respondent Dugan. When the Woods first occupied the subject property in 1975, a portion of the upland property was being used to dump solid and household waste. It had been used for this purpose for many years, and some water run-off and drainage from the dump flowed into a marsh area at the south end of the dump site. The Woods began a cleanup project to remove the accumulated dump matter, and such work was done over a period of some two years. After the dump area was cleaned, it was bulldozed out so as to create an upland body of water referred to as Lake Boomerang. The depth of this body of water was originally about eighteen inches to two feet. An elbow canal was also created on the east side of the property and was at some point in time joined to Lake Boomerang. Lake Boomerang was used by respondent Wood and Mr. Harvey Hanley as a testing place for a hovercraft project experiment. The hovercraft is a vessel which rides on a cushion of air over the water and can run over smooth land or land subject to only gradual inclines or declines. During the testing of hovercraft, it was necessary to wade out and stand along side the craft. Deep water was detrimental to this. Mr. Hanley did not want or need access to the Gulf For his tests. The Gulf is located to the south of Lake Boomerang and is separated by a land mass. During the early part of March, 1978, the Florida Marine Patrol entered the Wood property and complained of certain dredging and filling activity thereon. Thereafter, certain representatives from the Department of Environmental Regulation and from the United States Corps of Engineers made on- site visits to the subject property and had various discussions with respondent J. David Wood. On or about March 9, 1978, David B. Scott, an environmental specialist with the Petitioner, and Melvin Rector, visited the site for the purpose of making a determination as to whether a permit was necessary for the work being done on the subject properties. Mr. Scott was tendered and accepted as an expert witness in the field of ecology. While on the property during that visit, Mr. Scott observed that dredging had been done parallel to the shoreline and that spoil had been placed in the marsh on the waterward side of the canal. Mr. Scott told Mr. Wood that it appeared that he was in violation of dredging and filling laws and that he would need a permit. Mr. Wood acknowledged that the spoil placed in the marsh was a mistake and would be removed. Some discussion was had regarding an after-the-fact Permit. No commitment to approve such a permit was made by DER representatives, and no application for such a permit was filed by Mr. Wood. On or about March 24, 1978, Steve Hart from DER and David Ferrell, a biologist and project manager for the United States Corps of Engineers, visited the subject property. Mr. Farrell had cone to investigate a spoil mound and dragline on the property which he had observed earlier in March. Mr. Ferrell was told by Mr. Fisher, a caretaker on the property, that the spoil material that had been placed in the marsh would be removed and that the large spoil mound would be spread out on the uplands. On March 27, 1978, Mr. Wood met with David Scott in the Gainesville DER office. They discussed a plan of restoration for the property which included the removal of all spoil from the marsh area and the filling in of excavated areas within the jurisdiction of DER. The construction of a dike was not discussed. On March 29, 1978, Mr. Wood met with David Ferrell and Carlos Espinosa at the Corps of Engineers office in Palatka, Florida, to discuss a plan of restoration. This plan included taking the spoil material out of the marsh and pushing it back into the tidal creek area to its original elevation and configuration. Mr. Wood recalls that a dam or a dike was discussed at this meeting, but neither Mr. Ferrell nor Mr. Espinosa instructed him to construct a dike at this meeting. On or about April 5, 1978, Mr. Ferrell again visited the site to see what progress was being made on the restoration plan. Mr. Ferrell observed that the restoration was proceeding as agreed. He observed the land mass area which had been graded down somewhat and told Mr. Wood that this land mass should remain intact. Mr. Wood asked Mr. Ferrell if fill could be added on top of the land mass area and Mr. Ferrell replied in the affirmative. The next visit to the site occurred on April 19, 1970, with David Scott and David Ferrell present to approve the restoration. On this visit, Scott and Ferrell observed that a dike about two feet high had been constructed approximately eighty (80) feet south or waterward of the original land mass. They further observed that the upland water body had been widened and lengthened so as to extend into DER's jurisdiction and that a channel had been dredged from the dike to the open waters of the Gulf of Mexico. Mr. Ferrell discussed with Mr. Wood a further plan of restoration which included moving the dike northward out of the marsh area and filling in and restoring the area. No specific restoration plan was agreed upon. Respondent's witnesses did recall that Mr. Ferrell had Placed stake marks and boot marks to indicate where the dike was to be moved. Mr. Scott with DER was unwilling to make a further commitment regarding restoration because he felt that the area had changed so drastically that it was difficult to see what changes had occurred. He wanted to review photographs to determine the extent of the violation and necessary restoration. Subsequent to this April 19th visit, DER issued its official notice to the Woods that violations had occurred. Mr. Ferrell and Mr. Espinosa from the Corps of Engineers again went on site on April 28 and May 30, 1978. On April 28, 1978, they observed no additional work having been accomplished. There was testimony from the respondent's witnesses that the dike had been moved northward about eight feet on the eastern end and 20 to 25 feet on the western end subsequent to the April 19, 1978, meeting on the property. Mr. Wood was advised that the dike would have to be removed to the original land mass area and that the tidal creek configuration would have to be restored. On the 30th of May, Mr. Ferrell observed that the upland canal had been connected to a side canal to the east and that the dike had been elevated to approximately six feet. Thereafter, the Corps forwarded the matter to their enforcement section. Mr. Scott, with expertise in ecology; Stephen Gatewood, with expertise in vegetation identification and aerial photography interpretation; and Landon Ross, with expertise in biology, all testified regarding the areas of DER's jurisdiction according to its rules regulations and statutes. This testimony was based upon identification of vegetation in the area, site verifications of landmarks and signatures of vegetation when comparing photographs taken at different time periods. There was also testimony from the respondents regarding a fire ditch or fire break somewhere in the vicinity of the current location of the dike and the vegetation located in said fire ditch. Inasmuch as there was a rather substantial deviation in the testimony of the respondents' witnesses with regard to the exact location of the fire ditch and testimony that neither pine trees growing within the ditch nor the hardness of the soil contained therein would be indicative of DER's jurisdiction, no finding can be based upon testimony concerning the fire ditch. The undersigned finds from the testimony and documentary evidence that the work accomplished by Mr. Wood was undertaken within submerged lands and the transitional zone of submerged lands of waters of the State, thus coming within the jurisdiction of DER. This work includes the waterward channel, the dike, the fill and a portion of the water body dredged landward of the dike. The dredging and filling activities which occurred on the property had the effect of eliminating important marsh areas and harming aquatic, plant and wildlife in the area. The fact that the upland area was used as a dump site for many years up to the edge of the marsh area does not eliminate the harm caused by the removal and destruction of the marsh area, though it may affect the extent of the damage done by the dredging and filling. In order to recover the biological and aquatic value of the area dredged and filled, the land needs to be restored to its preexisting elevation and revegetated. The site could not restore itself naturally within a reasonable period of time. The Department of Environmental Regulation incurred expenses totalling $661.86 in the process of investigating the work being done on the subject property prior to the issuance of the Notice of Violation which initiated this proceeding.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the respondents Wood be found in violation of Section 403.161(1)(a) and (b) as specified in the Notice of Violation and that the Orders for Corrective Action be made binding and final upon the respondents Wood. Respectfully submitted and entered this 13th day of February, 1980, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Silvia Morell Alderman Assistant General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 Larry Levy Dickinson, Levy and Taylor 346 Barnett Bank Building Tallahassee, Florida 32301 Ray E. Dugan Florida National Bank Building St. Petersburg, Florida 33720 Honorable Jacob Varn Secretary, Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue Whether the Florida Land and Water Adjudicatory Commission should permit the development authorized by Monroe County Building Permit No. 9110002601 and, if so, upon what, if any, conditions and restrictions.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: The property that is the subject of the development order under review in the instant case (hereinafter referred to as the "Property") is an 18.85-acre parcel located on No Name Key in unincorporated Monroe County within the Florida Keys Area of Critical State Concern. Since 1985, the Property has been owned by Respondent Florida Keys Investment Properties, Inc. (hereinafter referred to as "FKIP"). The Property is the site of a borrow pit that currently occupies 9.65 acres of the Property's surface area. Since the early 1970's, Rudolph Krause & Sons of Florida (hereinafter referred to as "Krause & Sons") has been operating the borrow pit and excavating fill from the Property for sale to the public pursuant to permits issued by the County. Both Krause & Sons and FKIP are owned by Rudolph Krause, his wife, Roseann Krause, and other members of the Krause family. Since 1975, Roseann Krause has assumed primary responsibility for obtaining from the County the permits necessary to perform the excavation work on the Property (hereinafter referred to as the "excavation permits"). Such excavation permits have been issued by the County each year from 1975 to 1991, with the exception of 1988. 1/ Each of these excavation permits contained language indicating that the permit was a renewal of at least one previously issued permit. No excavation permit other than the 1991 permit, which is the permit under review in the instant case, has been appealed by the Department. Although the excavation work on the Property has been conducted with the approval, and to the apparent satisfaction, of the County, in 1985 the United States Army Corps of Engineers filed a complaint in federal district court against Mr. and Mrs. Krause, FKIP and Krause & Sons alleging that certain work had been done in the wetlands portion of the Property without the requisite dredge and fill permit and therefore in violation of federal law. Neither the County nor the Department were parties to this federal district court proceeding, although the County, at least, was aware of the proceeding. In September of 1985, the federal district court entered a final consent judgement, the first eight numbered paragraphs of which provided as follows: This Court has jurisdiction of the subject matter of this action and of the parties thereto. The provisions of this Final Judgment shall be binding upon the Defendants; their successors and assigns; and all persons, firms and corpora- tions in active concert or privity with the Defendants who have actual or constructive notice of this Judgment by personal service or otherwise. All references to geographical locations with respect to this dredge and fill/restoration on No Name Key shall be directed to the attached sketch entitled "Florida Keys Investment Properties, Inc. Restoration Plan." (Exhibit A). Exhibit A is merely an enlarged view of a portion of Exhibit B, which is a jurisdictional determination by Curtis Kruer, dated June 3, 1983. Within 18 months of entry of this Final (Consent) Judgment, the Defendants shall remove all fill material located in the area indicated on Exhibit A (the south side and southern portion of east side of the existing borrow pit) down to the adjacent wetland elevation. All spoil material so removed will be placed on upland areas on site or at the Defendants' option, may be trucked off site. Spoil material may be stockpiled in areas designated as wetlands immediately adjacent to the areas of the borrow pit to be excavated. Defendants shall notify the Big Pine Key regulatory Field Office of the United States Army Corps of Engineers upon commencement and completion of this phase of the earthmoving work. Within three years of the entry of this Final (Consent) Judgment, the Defendants shall be allowed to enlarge the existing borrow pit as shown on Exhibit A to a maximum depth of -60 feet MSL. Within 120 days from completion of the excavation work described in paragraph 5 above or within 40 months after entry of this decree, which- ever date comes first, the Defendants, shall complete the creation of the wetland shelf area on the eastern and western sides of the borrow pit (excluding that portion of the pit to be excavated in the uplands, i.e. Section "C" on Exhibit B) by grading the area down to the adjacent natural wetland elevations as shown on Exhibit A. All spoil material will be placed on an upland site or, at Defendants' option, may be temporarily stored on site, and then trucked off site within the period set forth in the first sentence of this paragraph. Defendants agree to conduct the above-described restoration measures in an environmentally-sensitive manner and shall use their best efforts to avoid damage to adjacent wetlands or water areas (other than the borrow pit) during this process. In addition, a low fill berm 6-feet wide and 2-feet high shall be constructed and remain around the immediate edge of the pit as shown in Exhibit A at all times during excavation of the pit. This berm shall be extended around the immediate edge of the pit's final configuration. This allows Defendants to continue excavation of the pit in a northerly direction into the existing uplands shown as "C" on Exhibit B. Defendants are hereby permanently enjoined from conducting any further dredging, filling or construction activities at No Name Key, adjacent to Big Spanish Channel in any wetland or water area, above or below the mean high water line, without the prior issuance of a Department of Army permit. The only exception to this provision is the work described herein. Only that portion of Defendants' property depicted as Section "C" on attached "Sketch of Jurisdictional Determination" (Exhibit "B" hereto) is agreed to be uplands, not subject to Army Corps of Engineers jurisdiction. Mrs. Krause had submitted an application for a renewal excavation permit in February of 1985, prior to the entry of the federal district court's final consent judgment. The application, as originally submitted, did not specify the total amount of fill Krause & Sons expected to excavate during the year. In a letter dated March 12, 1985, that she sent to the County's Building Director, Mrs. Krause acknowledged that she did not include this information in the application. The body of the letter read as follows: I applied for renewal of our excavation (borrow pit on No Name) permit in February. I wish to keep current this permit but at the present time I cannot supply you with any additional informa- tion since it is in litigation with the Corps of Engineers. As soon as this litigation is resolved, I will supply you with the needed information as to width, length and depth to be dug as well as total amount of cubic yards. I do not wish this permit to lapse in any way and therefore request that you issue a renewal based upon this information at this time. If you have any questions regarding this information, please do not hesitate to call me. Thank you for your attention to this matter. I certainly appreciate your understanding. The following month, Mrs. Krause supplemented the application she had submitted in February by providing the County with two sketches of the Property which were similar, but not identical, to the one appended to the final consent judgment and identified as Exhibit B. On one of these sketches, she had made the following handwritten notations: "proposed 25,000 yds. 25'x750'x35,'" which notation appeared next to the southwestern edge of the borrow pit; and "uplands to be dug," which notation appeared in the same area on the northerly portion of the Property that is depicted in the final consent judgment's Exhibit B as Section "C" (hereinafter referred to as the "Uplands"). It is apparent from a review of the two sketches that the "proposed 25,000 yds" were to come from an area on the western side of the pit and not from the Uplands. On April 29, 1985, the County issued the excavation permit (Building Permit No. 13289A) for which Mrs. Krause had applied on behalf of Krause & Sons. In issuing this permit, the County used a printed building permit form which contained the following language: THIS PERMIT SHALL ALLOW WORK (AS DEFINED UNDER WORK DESCRIPTION BELOW AND AS SHOWN AND SPECIFIED ON PLANS SUBMITTED AND ON FILE IN THE BUILDING DEPARTMENT OFFICES) TO BE PERFORMED ON THE FOLLOWING PROPERTY BY THE OWNER LISTED: Typed in under "WORK DESCRIPTION" on the form was the following: "Renewal of Excavation Permit, Supplement to 11332A, 10203A, 9543A, 7791A, 6498A, 4884A, 3492A." Recipients of permits issued on these printed building permit forms are also furnished "permit cards" that they are instructed to post in an appropriate location at the work site. Each "permit card" contains the following advisement: The person accepting this permit shall conform to the terms of the application on file in the office of the Zoning Department of Monroe County and construction shall conform to the requirements of the Monroe County Codes. In or around early 1986, Krause & Sons hired E.I. DuPont De Nemours (hereinafter referred to as "DuPont") to blast, as a preliminary step in the resource extraction process, portions of the Property that had not yet been excavated (hereinafter referred to as the "Unexcavated Areas"), including the entire uplands area referred to as Section "C" in the federal district court's final consent judgment. Thereafter, DuPont, on behalf of Krause & Sons, applied to the County for a permit authorizing such blasting. The requested permit (Building Permit No. 14835A) was issued on February 20, 1986. In issuing Building Permit No. 14835A, the County used the same printed building permit form that it had used in issuing the 1985 excavation permit referenced in paragraph 15 above. It also provided an appropriate "permit card" for posting. Typed in under "WORK DESCRIPTION" on Building Permit No. 14835A was simply the following: "Blasters and Users Permit." No further indication was given as to the nature or scope of the work authorized to be performed. Following the issuance of Building Permit No. 14835A on February 26, 1986, Dupont began its blasting of the Unexcavated Areas. The work was completed later that year. Mr. Krause was on site during the blasting and provided assistance to DuPont. Krause & Sons paid Dupont a total of $267,131.58 for the blasting. In addition, it purchased or leased equipment to be used in the excavation of the blasted material. It would not have made these expenditures had it known that it would be prevented from completing the excavation of those areas of the Property that the County had authorized it to blast. In April of 1986, before the completion of the blasting, Mrs. Krause, on behalf of Krause & Sons, sought to renew Building Permit No. 13289A, the excavation permit she had obtained for the Property the previous year. The application she submitted indicated that Krause & Sons proposed to "[e]xcavate approx. 25,000 cu yds." Along with the application, she submitted a copy of the sketch of the Property containing her handwritten notations that she had sent to the County to supplement the previous year's application. The requested permit (Building Permit No. 15276A) was issued on April 30, 1986. In issuing Building Permit No. 15276A, the County used the same printed building permit form that it had used in issuing the blasting permit and the previous year's excavation permit. In addition, it provided an appropriate "permit card" for posting. Typed in under "WORK DESCRIPTION" on Building Permit No. 15276A was the following: "Renewal of Excavation Permit- Approximately 25,000 CY FILL Supplement to 13289A, 11332A, 10203A, 9543A, 7791A, 6498A, 4884A, 3492A." On September 15, 1986, after DuPont had completed its blasting, the County's current land development regulations (hereinafter referred to as the "Regulations") became effective. Section 9.5-231(a) of the Regulations provides that "[n]o structure or land in Monroe County shall hereafter be developed, used or occupied unless expressly authorized in a land use district in this division." Under the Regulations, the Property is in a "Native" or "NA" land use district. 2/ Section 9.5-239 of the Regulations lists the uses that are allowed in "NA" land use districts. "Resource extraction," which is defined in Section 9.5-4 of the Regulations as "the dredging, digging, extraction, mining and quarrying of limerock, sand, gravel or minerals for commercial purposes," is not among the uses listed. "Resource extraction" is permitted as a major conditional use in Industrial land use districts under Section 9.5-249(c)(2) of the Regulations, however. Sections 9.5-431, 9.5-432 and 9.5-433 of the Regulations specifically address the subject of resource extraction. They provide as follows: Section 9.5-431. General. All resource extraction activities in the county shall comply with the provision of this division in order to ensure that such activities do not adversely affect long-term ecological values in the county and that abandoned extraction sites will be restored. Section 9.5-432. Resource extraction standards. All resource extraction activities shall: Be designed so that no area of excavation, storage area for equipment or machinery or other structure or facility is closer than: Two hundred (200) feet to any property line; and Five hundred (500) feet to any residential nonresource extraction related commercial use in existence on the date the permit is issued; Be located on a parcel of at least twenty (20) acres; Be fenced or blocked so as to prevent unauthorized entry into the resource extraction operation through access roads; Will not involve excavation below sixty feet; Will not cause the introduction of saline aquifer waters into fresh water aquifers; Will involve restoration of disturbed areas at the completion of the resource extraction operation in accordance with section 9.5-433, and the implementation of the restoration plan is secured by a surety bond or other guarantee of performance approved by the county; and Operate solely between the hours of 8:00 a.m. and 5:00 p.m. Section 9.5-433. Restoration standards. All parcels of land which are used for resource extraction operations shall be restored as follows: Restoration shall be a continuous process, and each portion of the parcel shall be restored within two (2) years after resource extraction is completed for that portion; Topsoil shall be restored in approximately the same quality and quantity as existed at the time the resource extraction operation was initiated; Any body of water created by the resource extraction operation shall have a graded shoreline with a slope not to exceed one (1) foot vertical to five feet horizontal; All equipment, machinery and structures, except for structures that are usable for recreational purposes or any other use authorized in the area, shall be removed within six (6) months after the resource extraction operation is terminated and restoration is completed; and Reclamation shall to the maximum extent practical result in the reestablishment of the vegetation association which existed prior to the extraction activity. A "nonconforming use," as that term is used in the Regulations, is defined in Section 9.5-4 thereof as "any use lawfully being made of any land, buildings or structure, other than a sign, on the effective date of this chapter or any amendment thereto, rendering such use nonconforming, which does not comply with all of the regulations of this chapter, or any amendment thereto. Section 9.5-143(a) of the Regulations provides that "[n]onconforming uses of land or structures may continue in accordance with the provisions of this section." Among "the provisions of this section" are the following found in subsection (c) thereof: Extensions: Nonconforming uses shall not be extended. This prohibition shall be construed so as to prevent: Enlargement of nonconforming uses by additions to the structure in which the nonconforming uses are located; or Occupancy of additional lands. According to Section 9.5-141 of the Regulations, the purpose of the provisions relating to "nonconforming uses" is to regulate and limit the continued existence of uses and structures established prior to the enactment of this chapter. Many nonconformities may continue, but the provisions of this article are designed to curtail substantial investment in nonconformities and to bring about their eventual elimination in order to preserve the integrity of this chapter. Section 9.5-115 of the Regulations is entitled "Expiration of building permit." Subsections (a) through (d) of this section provide as follows: A building permit shall automatically expire and become null and void if work authorized by such permit is not commenced within sixty (60) days from the effective date of the permit, or if such work, when commenced, is suspended or abandoned at any time for a period of one hundred twenty (120) consecutive days. The effective date of a building permit authorizing land clearing or which authorizes development as defined in chapter 380, Florida Statutes, shall be as provided in rule 9J-1.03, Florida Administrative Code, as long as the parcel is located within an area of critical state concern. If the work covered by the permit has not commenced or has commenced and been suspended or abandoned, the building official may extend such permit for a single period of sixty (60) days from the date of extension is [sic] made prior to the expiration date of the initial permit. If the work covered by the permit has commenced, is in progress, but has not been completed and in the opinion of the building official and the director of planning, is being carried on progressively in a substantial manner, the permit shall remain in effect until completion of the job. If work has commenced and the permit becomes null and void or expires because of lack of progress or abandonment, a new permit covering the proposed construction shall be obtained before proceeding with the work under regulations in effect at the time the new permit is issued. Section 9.5-115 of the Regulations makes no reference to "renewal" permits. The first excavation permit Krause & Sons received after the effective date of the Regulations (Building Permit No. 17487A) was issued on May 1, 1987. In issuing Building Permit No. 17487A, the County used the same printed building permit form that it had used in issuing the 1986 blasting permit and the 1985 and 1986 excavation permits. In addition, it provided an appropriate "permit card" for posting. Typed in under "WORK DESCRIPTION" on Building Permit No. 17487A was the following: "Excavation Pit- RENEWAL- Supplement to Permit #13289A, 11332A, 10203A, 9543A, 7791A, 6498A, 4884A, 3492A." Typed in under "REMARKS" on Building Permit No. 17487A was the following: APPLICANT MUST APPLY FOR A BLASTING PERMIT IF THIS ACTIVITY IS REQUIRED Issued under the condition that restoration required from Army Corps be completed. Biologist recommends approval as per Monroe County Code. On April 26, 1988, Mrs. Krause, on behalf of Krause & Sons, filed an application to renew Building Permit No. 17487A. Accompanying the application was a sketch of the Property. On the sketch, Mrs. Krause had drawn an arrow pointing to the southern portion of the Uplands. Above the arrow she had written, "proposed to dig approx 19,444 cu yds," and in the area to which the arrow was pointing, she had written, "Approx. 19444 cu yds to be dug." There was a delay in the issuance of the requested permit. On April 4, 1989, the permit (Building Permit No. 8910000731) was finally issued. An application to renew Building Permit No. 8910000731 was filed on April 3, 1990. The requested permit (Building Permit No. 9010000645) was issued on June 21, 1990. The effective date of the permit was August 28, 1990. An application to renew Building Permit No. 9010000645 was filed on April 16, 1991. The requested permit (Building Permit No. 9110002601) was issued on July 11, 1991. In the "Remarks" section of the permit the following was typed: RENEWAL OF PERMIT 90-10000645, 89-10000731 AND 17487A. PLANNING APPROVAL 6-25-91 AG BIOLOGIST RECOMMENDS APPROVAL AS PER MONROE COUNTY CODE. THIS PERMIT DOES NOT AUTHORIZE BLASTING. A SEPARATE PERMIT IS REQUIRED. Neither the application nor the permit specified the amount of fill to be excavated or where on the Property the excavation was to occur. There was only one area of the Property however, where there was further excavation to be done. This area was the Uplands. Respondents had hoped, pursuant to the authorization provided by the permit, to merely remove the already blasted fill material that remained there. 3/ No further blasting was needed. The Department appealed Building Permit No. 9110002601 to the Commission.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Commission enter a final order (1) granting Respondents permission to engage in the resource extraction activity they seek to undertake pursuant to Building Permit No. 9110002601, to wit: the completion of the excavation of the Uplands, and (2) specifying that Respondents shall comply with the applicable provisions of Sections 9.5-432 (resource extraction standards) and 9.5-433 (restoration standards) of the Regulations to the extent that these provisions do not operate to effectively prevent them from excavating any land that, on the effective date of the Regulations, was being lawfully used for resource extraction activity. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 17th 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 17th day of December, 1992.
The Issue Whether Sugarloaf Shores Section C Extension is a "major development" as defined by Section 6-222, Monroe County Code, and (in connection with Intervenor's amended plat proposal and dredge and fill application) should undergo major development review pursuant to Chapter 6, Article VII, Monroe County Code.
Findings Of Fact Sugarloaf Shores Section C Extension is a subdivision located in Section 2, Township 67 South, Range 27 East, Sugarloaf Key, Monroe County, Florida. (Prehearing Stipulation, Para. (e), No. 1). The plat of Sugarloaf Shores Section C Extension, shows 76 residential building lots and five deadend canals (connecting to Upper Sugarloaf Sound or Cross Key Channel) and a canal of approximately 900 feet paralleling the mean high water line of Upper Sugarloaf Sound; it was approved by Monroe County on July 5, 1972, and is recorded in Monroe County Plat Book 6, page 93. The subdivision contains 38.9 plus acres. (Prehearing Stipulation, Para. (e), No. 2; Joint Exhibit No. 1). Lloyd A. Good, Jr., purchased Sugarloaf Shores Section C Extension on October 8, 1973, and is the current owner and developer of the subdivision. (Prehearing Stipulation Para. (e), No. 3). At the time of his purchase, the land had been cleared. An east-west canal of approximately 600' in length and 50' in width had been excavated but unopened to Upper Sugarloaf Sound. A north-south canal or borrow pit of approximately 200' in length and 50' in width had also been excavated. Fill obtained from these excavations had been placed on the property. He subsequently placed approximately 800 yards of additional fill on the Southeast corner of the property. (Testimony of Good) The platted subdivision is landward of the mean high water line and contains a mixture of upland and wetland vegetation. A berm rises along the front of the property between Allamanda Drive and the existing (plugged) canal. The northern part of the property contains white, black, and red mangroves, red grape, a hardwood hammock, and a salt water marsh characterized by key grass, salicornia, and white and black mangroves. The western part of the property contains fresh water wetlands characterized by spike rush. The area south of the existing canal contains more mangroves and is permeated by transitional wetland or fresh water wetland plant species, with the higher elevations containing Lower Keys hardwood hammock species such as poison wood, black tooth and Jamaican dogwood. The salt marsh and black mangroves are subject to inundation from tidal exchange; the fresh water wetlands are subject to rain water flooding. (Testimony of Dennis) In 1973, Lloyd Good was familiar with regulatory restrictions on the use of wetland areas. As a Philadelphia attorney, he had "practiced in wetland areas in New Jersey . . . and . . . knew that the concept of deadend canals at that time was not feasible." (TR.65) He had decided to amend the original plat (and change the development plan) even before he purchased Sugarloaf Shores Section C Extension because he believed that under existing environmental laws the platted deadend canals would not be permitted. (TR.65) So he hired engineers to design a development plan acceptable to the U.S. Army Corps of Engineers and other governmental agencies having regulatory jurisdiction over dredge and fill activities in wetland areas. Because of other business interests, he temporarily halted work on the project between late 1973 and 1975. From 1975 to 1980, he worked with permitting officials from federal, state, and local regulatory agencies in an effort to devise a development plan for Section C Extension which would meet regulatory standards. In 1980, he hired a consultant to obtain the necessary federal, state, and local permits needed to carry out his revised development plan. Monroe County permitting officials told him not to apply for any local dredge and fill, or land clearing permits until he first obtained the required federal and state permits. (Testimony of Good) In 1980, Lloyd Good applied for a joint U.S. Army Corps of Engineers/Florida Department of Environmental Regulation permit to perform the dredging and filling necessary to carry out his revised development plan. In 1983, after extensive negotiation, both agencies issued him the required dredge and fill permits. The Department of Environmental Regulation permit was conditioned on Mr. Good obtaining Monroe County approval of an amended plat of Sugarloaf Shores Section C Extension conforming to the federal and state permits. (Joint Exhibit No. 21, Testimony of Good) During his initial discussions with Monroe County officials in 1981, Lloyd Good proposed rezoning the property to permit multiple-family residences; if rezoned, he expected that the project would be required to undergo "major development" review as defined by the Monroe County Code. But after meeting with members of the Sugarloaf Property Owners Association and discovering that they were violently opposed to multi-family development," (TR.73) he decided to retain the single-family nature of the original development and not seek a zoning change. Monroe County officials told him that by retaining the original zoning his development activities would not be subject to the "major development" review process. (Testimony of Good) On May 10, 1983, Lloyd Good submitted an application to Monroe County for authorization to dredge 42,400 plus/minus cubic yards of submerged lands, wetlands and uplands for roads and fill needed to develop residential lots within the Sugarloaf Shores Subdivision in accordance with his newly revised development plan. His application conformed to the federal and state permits already issued. (Prehearing Stipulation Para. (e) No. 4; Joint Exhibits No. 2 and 6) Mark Robinson, the county biologist assigned to review the dredge and fill application and prepare a biological report, asked Lloyd Good to have the state and federal permits amended to address several of his concerns. Mr. Good obtained the requested permit amendments, then asked that the biological report be completed. (Testimony of Good) On August 25, 1983, Dr. Jeffrey M. Doyle, Director of the Monroe County Planning and Zoning Department, issued an administrative ruling declaring Sugarloaf Shores Section C Extension to be a "major development" under the Monroe County Code. As grounds, he cited Section 6-222(1), which defines a "major development" project as a subdivision containing five acres or more of land or water, and Section 6-222(7)(b), which grants discretionary authority to zoning officials and the County Commission to designate an activity or use as a "major development" project if it "reflects sufficient scope, scale and size to justify its being designated . . . in order to ensure its reasonable implementation, if approved, and its proper review prior to such approval." Under his administrative ruling, the dredge and fill application would be subject to the comprehensive review procedures which apply to "major developments." (Joint Exhibit Nos. 32, 5) On September 21, 1983, Lloyd Good appealed Dr. Doyle's administrative ruling to the Monroe County Board of Adjustment. The issue before the Board of Adjustment (and subsequently before the County Commission) was whether Mr. Good's proposed dredge and fill activity (for the purpose of constructing the revised subdivision) was a "major development" as defined by the Monroe County Code, and whether compliance with "major development" review procedures was required before county dredge and fill permits could be issued. (Prehearing Stipulation, Para. (e) No. 6; Joint Exhibit No. 8). On November 2, 1983, the Monroe County Board of Adjustment upheld Dr. Doyle's decision and determined that the Section C Extension subdivision (to be created by the dredging and filling) was a "major development" under Chapter 6- 222(7)(b), Monroe County Code. (Prehearing Stipulation, Para. (e) No. 7; Joint Exhibits No. 11 and 12). On November 23, 1983, Lloyd Good appealed the Board of Adjustment's decision to the County Commission. (Prehearing Stipulation, Para. (e) No. 8; Joint Exhibit No. 13). On January 27, 1984, the County Commission, sitting as the Board of Appeals, adopted Resolution No. 042-1984, reversing the Board of Adjustment's decision of November 2, 1983. The resolution (giving no specific reasons for the reversal) remanded the matter to the County Planning and Building Department for normal processing of the related dredge and fill permits. It did not grant or deny any development or dredge and fill permit; it simply ordered that Lloyd Good's dredge and fill application would be reviewed under normal permitting procedures, not the more comprehensive procedures applicable to "major development" projects. (Prehearing Stipulation, Para. (e), No. 9; Joint Exhibit No. 14) The DCA did not appeal this resolution to a circuit court (within 30 days of its adoption) or to the FLAWAC (within 45 days of its transmission). The DCA did not challenge or question the County Commission's decision (that the proposed dredge and fill activities would not undergo "major development review") until it appealed the Commission's subsequent resolution granting the dredge and fill permit. (Testimony of Good, Dennis) On June 4, 1984, Lloyd Good submitted to the Monroe County Building Department 13 copies of a proposed amended plat for the Sugarloaf Shores Section C Extension. The amended plat incorporated his new development plan and reflected the dredging and filling approved by state and federal permits. (Prehearing Stipulation, Para. (e), No. 10; Joint Exhibit Nos. 18 and 21). On July 13, 1984, the County Commission adopted Resolution No. 195- 1984 approving Lloyd Good's application to dredge and fill. The resolution was transmitted to the DCA on July 27, 1984, which appealed it to the FLAWAC by notice filed September 10, 1984. 1/ The appealed resolution directs that the applied-for permit be issued subject to Lloyd Good's subsequent filing of an amendment to the Sugarloaf Shores Section C Extension plat. (Prehearing Stipulation, Para. (e), Joint Exhibit No. 19) Thereafter, on September 7, 1984, the County Commission adopted Resolution No. 224-1984, approving an "Amended Plat for Sugarloaf Shores Section C Extension." The DCA also appealed this resolution to FLAWAC by separate notice filed October 31, 1984. (Prehearing Stipulation, Para. (e), No. 12; Joint Exhibit Nos. 21, 22) The amended plat approved by Resolution No. 224-1984, replaces the original plat with a fundamentally new and different development plan. It alters the location of roads; eliminates the proposed deadend canals (except for the existing "plugged" canal); provides for wetland preservation areas in Tracts A, B, C, D, and F, and for the construction of a six-acre boat basin fronting the property on Upper Sugarloaf Sound; and reduces the number of single family residential lots from 76 to 55. RU-1 zoning is retained. The new development plan is preferable to the original plan in terms of environmental impact. The amended plat was processed in the same manner as all new plats in Monroe County. (Joint Exhibits No. 1, 21; Testimony of Dennis) The record is devoid of any documented expenditures made by Lloyd Good in reliance on County Commission approval of the original or amended plat.
Recommendation Based on the foregoing it is RECOMMENDED that pursuant to Section 380.07(4), Florida Statutes (1983), the Florida Land and Water Adjudicatory Commission enter an order: Reversing Resolution Nos. 195-1984 and 224-1984, because these resolutions approved development activities prior to their undergoing the "major development" review required by Section 6-222(1) and (6), Monroe County Code, as incorporated by Rules 27F-9.06 and 27F-9.17, Florida Administrative Code; Declaring the proposed Sugarloaf Shores Section C Extension a "major development" within the meaning of Section 6-222(1) and (6), Monroe County Code, and requiring the two development activities which would create it to undergo "major development" review prior to any approval; and Declaring that after undergoing the required "major development" review, these development activities would be eligible for approval, but that the disposition of the appeals in the instant cases does not reach the substantive issue of whether the proposed development should ultimately be approved, or disapproved. See, Section 380.08(3), Florida Statutes (1983). DONE and ORDERED this 21st day of January, 1986, in Tallahassee, Florida. R. L. CALEEN, JR. 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 21st day of January, 1986.
The Issue This cause concerns whether the proposal of Petitioner, Winchester Properties, in response to a request for proposal (RFP) by the Department of Transportation (DOT) for lease of office space, is the lowest and best response, based upon the evaluation criteria and weighting enumerated in that RFP.
Findings Of Fact The Department wishes to lease 13,100 square feet of office space to house the division for a period of 5 years. The Division has approximately 55 employees in 3 sections who design, develop, test and run the computer programs and applications for Respondent's requirements. In the daily performance of their duties, Division personnel often need to consult with other Division employees and supervisors in face-to-face verbal communication in order to resolve highly technical programming and application questions. Because of this consideration, they require offices in the same building and in a contiguous area of a building. The Division formally occupied a single separate building, until early in 1989 when it moved out of the "IBM Building" in Tallahassee. Since that time, its personnel have been scattered through various offices in the DOT's headquarters building, the Haydon Burns Building, on several different floors. This arrangement has reduced the Division's efficiency and productivity. Therefore, it seeks new, unified office space so its various office operations and employees may be reunited in one location. It is also desirable that this location be in fairly close proximity to the DOT headquarters building. In order to solicit proposals for the required office space, the Department's Office of Support Services published a newspaper notice of this solicitation and issued a Request for Proposal and Bid Proposal Submittal Form, for lease #550:0189. This RFP was on a standard form prepared and used by the Bureau of Property Management of the Florida Department of General Services. Ms. Eloise Frost is the lease coordinator in the Respondent's Office of Support Services, and has handled approximately 20 solicitations for office space leasing in the past two years. All of these have been conducted through the use of request for proposals (RFP's). She oversees and consults with the Department's district offices around the state who also typically use the RFP process for office space leasing. Winchester Properties has submitted proposals in the recent past in response to RFP's issued by DOT for office space, and Mr. Winchester and Ms. Frost have communicated on occasion during the solicitation stages of past RFP office space procurements. The specific requirements of the RFP used in the instant case were prepared by Ms. Frost and Mr. Dolson. That RFP document advised prospective bidders that the evaluation criteria for the proposal at issue were as follows: EVALUATION CRITERIA (AWARD FACTORS) The successful bid will be that one determined to be the lowest and best. All bids will be evaluated based on the award factors enumerated below: Rental, using total present value methodology for basic terms of lease (see number d, general provisions items 1 and 2) applying the present value discount rate of 8.91 percent. (weighting:30) Conformance of and susceptibility of the design of the space offered to efficient layout and good utilization and to the specific requirements contained in the invitation to bid. (weighting:25) Provision for the aggregate square footage in a single building. Proposals will be considered, but fewer points given, which offer the aggregate square footage in not more than two locations provided the facilities are immediately adjacent to or within 100 yards of each other. (weighting:15) The effect of environmental factors, including the physical characteristics of the building and the area surrounding it, on the efficient and economical conduct of department operations planned for the requested space. (weighting:20) Proximity of offered space to other department activities as well as other public services. (weighting:10) Total award factors 100 Ms. Frost in her testimony established that the weightings assigned to various evaluation criteria in an RFP may differ from one RFP to another. An assignment of 30 to 50 percent weighting for the rental rate component of an RFP leasing situation is not at all uncommon in the Department's procurement procedures. The assignment in this case of a 30 percent weighting to the rental rate factor is not unusual nor unreasonable. Further, in that regard, the percentum assignments of weight depicted on the face of the RFP for rental rate, and the other factors quoted above, were not timely challenged by the Petitioner and are, therefore, waived. It thus must be determined in this proceeding whether Petitioner can establish that the scores accorded the Petitioner, out of the total possible scores enumerated in the RFP, are in error. Mr. Dolson maintained in his testimony that, because of the nature of the Division's activities, it must directly compete with the private sector in recruiting and hiring persons educated and trained in computer programing. For this reason, he states the Department places emphasis on an attractive, secure and efficient working environment in order to insure recruitment and retention of high quality personnel. This emphasis on the desired working environment is borne out to some extent in the manner in which the evaluation criteria are assigned weight in the RFP. Other provisions of the RFP contain requirements for approximately 80 exclusive parking spaces on site; certain electrical, telephone, lighting and air conditioning arrangements; security and access requirements; and particular numbers of offices, conferences, a training room, break rooms, storage areas and other areas to approximate the required square footage. The RFP also contains a suggested floor plan (Attachment H) as a guide for the configuration of offices, rooms and other areas. That suggested floor plan depicted the co- location of those areas on a single floor. These various requirements in the RFP were agreed to by the Petitioner and the Intervenor in their response submittals, as shown by the initials of the representatives of those two parties. Both parties indicated on their proposals that they submitted a suggested floor plan to the agency. Intervenor's floor plan is not in evidence, however. The Department conducted a pre-proposal conference with prospective bidders on September 19, 1989, which several bidders attended, including Linder. Representatives of Winchester Properties did not attend. The pre-proposal conference provided bidders the opportunity to ask questions concerning specific criteria upon which the proposals would be evaluated and to get more detailed information concerning the nature and characteristics of the Department's office space needs. Four bidders ultimately submitted proposals. Petitioner Winchester Properties for a building located at 305 Blount Street in Tallahassee; TCS Associates for the Capitol Hill Building located at 1700 South Gadsden Street; Parkway/Oakland building located at 2002 Old St. Augustine Road; and Intervenor/Linder/Fregley/Funk/Oertel Partnership for the Blairstone Center building, located at 2601 Blairstone Road and still under construction. In terms of rental costs, the Winchester property represented the lowest cost proposal, and the Blairstone Center Building the highest rental cost proposal. The Blairstone Center Building is a new building, not yet occupied, and at the time of the proposal, not yet finally completed in terms of interior finish details. It consists of four floors of offices or potential offices, a street level parking floor with adjacent uncovered parking. Access to the offices would be through internal stairwells and internal elevators which descend to the parking level. That building contains a total of approximately 75,000 square feet of office space. If the lease was awarded to Blairstone Center, the Department's offices would be located on the first floor of the office space or the second floor of the building. The Blairstone Center Building is approximately 2 miles from the DOT headquarters. The Blairstone Building is located on Blairstone Road, a main thoroughfare and is surrounded by landscaped grounds, the parking lot which serves the building and, in the rear, by a golf course. The Winchester Building is a 3-story office building with approximately 5,000 square feet of office space per floor. Each floor has eight doors opening onto an external walkway or breezeway, with external stairwells and elevators connecting the floors. It has been owned by Winchester Properties or its predecessor partnership for approximately 10 years. Until recently, the building was leased to the Florida Department of Education. That agency was in the process of moving out when members of the Department's proposal evaluation committee visited and inspected the building. The building has a parking lot on site, and the site is bounded by railroad tracks to the south or rear side of the building, and to the north approximately one block is the new, high-rise, Department of Education building. Both buildings were visited by various members of the evaluation committee for the Department, charged with evaluating the various vendor proposals. Mr. Waddell and Ms. Poggie toured the interior of the Winchester Building with Mr. Winchester. Each building was scored independently by the committee members on all the various evaluation criteria. This was not necessary to do as to the rental rate criteria, however, because the difference in rental rates was obvious and concrete. After each committee member independently scored both buildings, the committee met as a whole, discussed their scoring and in a collegial manner arrived at a score for each building for each of the four evaluation criteria, excluding rental rates. When the scoring of each individual committee, for each evaluation criteria, was added together, the totals for each committee member demonstrated that each member had independently rated the Blairstone Center Building with the highest score and the Winchester Building with the lowest score. The Blairstone Center Building received a total score of 88.1 points. The Winchester property received a score of 70 points. Twenty-five points were available for the criteria "performance of and susceptibility of the space to efficient layout and good utilization." This total available point total or weighting for this criteria and the others was not timely contested by the Petitioner. The Winchester Building was awarded 8 points out of the total 25 points available for this category. In this respect, it was penalized 4 points for a "split floor" arrangement and penalized 13 points for "unsuitable arrangement of offices." Twenty points were assigned for the criteria for "the effect of environmental factors... on the efficient and economical conduct of Department operations." As to this category also, the Winchester Building received a total of 8 points. It was penalized 7 points for "security risk." It was penalized 2 points for not having 80 parking spaces and 3 points for "general condition." Ten total points were available for the proximity of the space to the Haydon Burns Building. In this regard, the Winchester Building received the most points, or 9 points, out of a possible 10. It lost one point for being 1/4 to one mile from the Burns Building, according to the evaluation standards set in the RFP. The Winchester proposal also received the maximum of 30 points for the rental rate since it was clearly the lowest in rental costs of all the proposed vendors. It also received the maximum of 15 points for the location of all the office space proposed in a single building, according to the standards set in the RFP, for a total of 70 points. The Blairstone Center Building received the maximum of 20 points for environmental factors and the 15 point maximum for its location in a single building. It received a score of 24 out of 25 possible points for "conformance of and susceptibility of the space design... to efficient layout...." Since it is approximately two miles away from the Burns Building, it lost three points on the proximity criteria, out of a possible 10, for a total of 7 points. It lost 7.9 points out of a possible thirty points for its proposed rental rate, which was the highest of any of the four vendors. After considering the bids and scoring the various responses to the five evaluation categories, the Respondent agency posted notice of its intent to award the lease to Linder for its Blairstone Center Building. The Petitioner, Winchester, timely filed its notice of protest and, additionally, a formal written protest. In addition to raising the disparity in the quoted rental rate between the Winchester proposal and the Linder proposal, Winchester properties asserted in its petition that there was no specific requirement contained in the request for proposal that all office space to be leased should be located on a single floor. As to the agency's assertion that Winchester's building offered an "unsuitable arrangement of offices," Winchester asserts that it explained to the evaluation team that the Department of Education, the former tenant, was in the process of moving out, and that the offices it had used would be renovated to meet DOT's needs, and that they anticipated working with the appropriate persons from DOT to produce a layout to best meet DOT's requirements." Concerning the category regarding "environmental factors...," Winchester denied that an above-average security risk existed, asserted that there was in excess of 80 parking spaces on site and that additional space could be made available on the adjacent vacant lot owned by Winchester Properties. Winchester professed to not understand the three-point penalty set forth in the agency's evaluation and intended award for the category "general conditions." Winchester also asserted its building is the closest one to the Burns Building of all those offered, as to that specific requirement in the RFP. The Blairstone Building of Linder is 2.1 miles away, and the Winchester Building being .85 miles away, from the Haydon Burns Building. Concerning category two in the RFP, related to "the conformance of and susceptibility of the space offered to efficient layout and good utilization...," the Winchester proposal was penalized 4 points for the "split floor" arrangement, whereby the Division would be located on all three floors of that building, if Winchester's proposal was accepted, rather than on a single floor. While it is true that the RFP does not contain a specific requirement for all space being located on a single floor, under the portion of the RFP which contains the evaluation criteria and award factors, that consideration legitimately is a part of evaluation criteria two concerning susceptibility of the design of the space to efficient layout and good utilization, and further, the Department included a suggested floor plan, as Attachment H to the RFP, which depicts all space located on a single floor. Thus, given the Department's interest in ease of communications between offices, the reduction of scoring points for the split-floor arrangement, attributable to the Winchester Properties building, is a legitimate concern of the Department, and the point reduction was shown to be reasonable. 25 points were available for "conformance of and susceptibility of the space to efficient layout and good utilization". The Winchester building was awarded 8 points for this category (rounded up from 7.6 points obtained by averaging the individual scores accorded it by each evaluation committee member). Seventeen points were deducted from Winchester's proposal for this evaluation criterion, of which 13 were subtracted for "unsuitable arrangement of offices". The agency's criterion in this particular, as shown by DOT witnesses, Dolson's and Waddell's, testimony, stems from the arrangement of internal walls and offices which they perceived caused traversal of a given floor of Petitioner's building to be inconvenient, without resorting to use of the exterior doors and breezeways surrounding each floor. After submission of their RFP responses, both the Intervenor and the Petitioner were accorded the opportunity to meet with representatives of the Department's evaluation team in a "walk-through" inspection of their respective buildings. During this inspection tour, and in response to inquiry by the evaluation committee members, as shown by the testimony of Messrs. Dolson and Waddell, as well as the Petitioner; Mr. Winchester stated, by way of clarification of his RFP response, that he would conform the office space to meet the Department's needs "within reason". He reiterated this assurance in his testimony. The Department representatives testified that they were unsure of what he meant by "within reason" and were uncertain that he would really alter the office space so as to mollify their concern about ease of interior access or traversal between offices on a given floor. After close scrutiny of the Petitioner's response to the RFP and his testimony, and in consideration of his candor and demeanor in testifying, it is found that "within reason" means that the office space, walls, and means of traversal within each floor of Petitioner's building would be arranged to accommodate any need of the agency related to the appropriate governmental functions it proposes to conduct in the sought office and other space to be leased. Both proposed vendors were accorded the opportunity to confer with agency representatives, who were evaluating their proposals, at the inspection tours and, given the circumstances under which it was made, it is deemed that Winchester's statement concerning proposed configuratlon of the space involved did not constitute a material deviation or amendment of the Petitioner's RFP response. It was in keeping with the purpose of agency procurement through this RFP process, which is designed to help the agency learn how its space needs can be best accommodated when it does not have a rigid set of specifications which, when not timely challenged, would have to be strictly adhered to by the agency and all proposed vendors. This is why the RFP procedure is commonly used for procurement of office space, rather than the more inflexible Invitation to Bid process. Because both proposed vendors were accorded this "inspection and comment" opportunity, and because the Intervenor has at least an equal opportunity to configure its partitions and offices to accommodate the agency's needs since its proposed space is not yet finished, it has not been shown that the fairly competitive nature of this RFP process was upset nor that either the Petitioner or the Intervenor gained an undue competitive advantage over the other. Further, in addition to the above facts, the Petitioner established, upon cross-examination of Mr. Dolson, his concession of the fact that the Petitioner's interior space, to which the 13 point deduction related, could be re-configured to alleviate the Department's concern with the efficient layout of the offices and partit ions and the matter of ease of traversal throughout the various floors of the building. Given the above facts, neither the Respondent agency nor Intervenor presented countervailing evidence of a competent, substantial, preponderant nature to justify or explain the scoring accorded to the Petitioner's proposal as to this category of the evaluation criteria or how the point score was truly arrived at. The evaluation committee chairman, Mr. Dolson, merely testified that each committee member independently scored the Petitioner's proposal and then the committee met and collegially arrived at an overall score to accord the proposals for each evaluation category. The total score arrived at, and points to be deducted, was calculated by averaging the individual scores awarded by each committee member. The problem with this lies in the fact that no unrefuted evidence of a reasonable basis for the individual member's point scores was presented. It was entirely a subjective performance. This is borne out by the fact that the individual scores were so disparate, as shown on the face of Respondent's Exhibit 4, in evidence. The committee members arrived at scores of 10, 3, 10, 0 and 15 points, out of a possible 25. This equates to a percentum scoring range, from lowest to highest, of 0%, 12%, 40%, 40% and 60% of the total points available. Such a 60% deviation range in scoring by these committee members shows a lack of a consistent, reasonable, logical rationale for the scoring and thus that it was arbitrarily determined. 1/ This is corroborated, to some extent, by Mr. Dolson's testimony to the effect that they felt, in a general, overall sense, that the Blairstone building was just a more desirable property. In summary, competent, substantial, preponderant evidence in support of the 13-point deduction from the score to be accorded the Petitioner's proposal has not been established. Therefore, the 13-point deduction is inappropriate. Inasmuch as a four-point deduction was shown and found to be reasonable for the multi-floor arrangement of the Petitioner's building, a problem of a related nature in the same evaluation category which cannot be corrected, it logically follows that some lesser point deduction should be attributed to the criticism concerning "unsuitable arrangement of offices". Since the Intervenor's proposed space, theoretically at least, can be configured precisely to the agency's taste, since no interior walls have yet been erected, it legitimately should score higher in this regard; the one-point deduction for location of elevators and stairwells having been shown to be reasonable. Because the perceived problem or criticism of the Petitioner's office arrangement is of a less serious nature than the incorrectible multi-floor situation, and is also largely correctible to meet the agency's needs, a three- point deduction in this particular is logical and reasonable and would be non- arbitrary. Thus, three points should be deducted for "unsuitable arrangement of offices". Evaluation criteria No. 4 in the RFP at page 7 concerns "the effect of environmental factors, including the physical characteristics of the building and the area surrounding it, on the efficient and economical conduct of departmental operations planned for the requested space". Full credit for complying with this criteria would accord 20 points to a bidder. Using this evaluation standard, the Department deducted 7 points from the Winchester proposal for "security risks". Security requirements are treated at paragraph 10 of page 6 of the RFP, however, and provide that "security shall include but not be limited to the following: locks on all outside doors and interior doors of training room area. locks on all outside windows. night lights on all outside doors. night lights in parking areas nearest building. provision for Sonitrol card security system to be connected to Sonitrol system in the information resource section in the Burns Buildings. These were the only security requirements mentioned as a requirement in the RFP, and Winchester agreed, by initialing this requirement, to comply with it, as did Linder. The requirement at paragraph 4 of the evaluation criteria on page 7 of the RFP is really related to environmental factors involving the physical nature of the proposed building and area surrounding it, as that relates to the efficient and economical conduct of the agency's operations, that is, the functions which the agency plans to conduct in the proposed leased space. The only requirement in the RFP expressly concerned with security arrangements and crime prevention has been fully complied with by both the Petitioner and the Intervenor. The agency's attempt to include a perceived "security risk" in its consideration of the vendor's responses with regard to evaluation criterion No. 4 on page 7 of the RFP is a convoluted, inappropriate interpretation of that criterion, which was not noticed to the vendors receiving and responding to the RFP. The element of security requirements was addressed specifically in the RFP at paragraph 10 on page 6; and the proposed vendors, including Winchester Properties, were not on notice that any other security requirements would be imposed by the agency. The agency is not entitled to vary from its RFP by labeling the perceived security risk as an environmental factor allegedly impinging on efficient and economical conduct of departmental operations planned for the proposed office space. That criterion really refers to the physical capabilities of the building and surrounding grounds to accommodate the actual functions which the agency proposes to conduct in the performance of its duties at the proposed office space and building. That evaluation criteria does not demonstrate to proposed vendors that the crime experience or perceived propensity of a building or building site for a lack of security, in terms of possible criminal activity in the future, is a consideration which they must address in their responses to the RFP. The agency, just like the vendors, is bound by the evaluation criteria and other specifications in the RFP, which by its issuance, has placed the vendors on notice that it will be the actual standards by which their proposals are judged. This is especially true when the agency has inserted a specifically defined security requirement in the RFP which the vendors are thus on notice to respond to. They were on no notice to respond to any other agency "security risk" standard. Thus, Winchester Properties cannot be penalized 7 points, or any points, for a perceived "security risk" attendant to its building and grounds of which it had no notice by the requirements published in the RFP. Moreover, it has not been factually established that the Winchester Properties is characterized by any heightened security risk. Winchester demonstrated that no criminal activity had occurred on the premises during 1989, as shown by the police report in evidence. That same police report, although it demonstrated that three commercial burglary-type incidents had occurred on the same street in 1989, does not demonstrate nor does any other evidence show that that is related in any way to the location or condition of the Winchester building and premises. Such incidents can occur in proximity to any proposed office space location. Moreover, although a breaking and entering occurred on the premises some years ago during the occupancy of the Department of Education, in response to that incident, Winchester installed security bars on all first floor windows. DOT personnel, inspecting the premises after the proposal was submitted, indicated that that raised some suspicion of a security risk in their minds. It just as easily could alleviate a security risk by making the building more secure. Further, the fact that beer and liquor bottles, refuse and other evidence showing that vagrants might have frequented the premises was not shown to be a chronic situation, as opposed to merely being incident to the fact that the building was vacant when DOT personnel inspected it, the Department of Education having recently vacated the premises. Winchester will be obligated to conduct and insure maintenance of the premises and grounds in accordance with the requirements which are set forth in the RFP, which would alleviate the perceived security problem involving overgrowth of weeds and underbrush in the rear of the building and which witness Dolson acknowledged would minimize any security risk. The observed beer and liquor bottles on the premises and evidence that vagrants have camped on the rear of the site near the railroad tracks was not shown to be other than a temporary condition caused by the vacant nature of the premises at the time they were observed. The perceived security deficit attendant to the proximity of the railroad tracks in the rear of the licensed premises is no different in degree than the proximity of the same railroad line immediately in the rear of the DOT headquarters building. The Winchester building is within the Capital Center complex boundaries and one block south of the new Department of Education building, and it simply was not demonstrated that any higher degree of security risk is attendant to this location than to other locations occupied by state agencies. No evidence was offered by Department witnesses nor Intervenor concerning the security risk or crime reporting experience of the area immediately surrounding the Blairstone property at issue either. In any event, however, because the question of "security risk" was not included as a standard which vendors had to comply with in responding to the RFP and about which they were not on notice; and because the security risk element is addressed elsewhere in the RFP and does not relate to the actual efficient and economical conduct of the agency's business planned for the proposed premises, the 7 point scoring penalty assessed against Winchester is inappropriate. The scoring attributable to its proposal should be increased accordingly. The same considerations apply to the agency's three-point penalty ascribed to the Winchester proposal for "general condition". The agency deducted three points for general condition by attributing that perceived deficit in the Winchester building and grounds to evaluation category No. 4 in the RFP concerning the effect of environmental factors, including physical characteristics of the building and area surrounding it, on the efficient and economical conduct of Department operations. The RFP, in terms of this evaluation criterion, nor any of the other criteria, contains no notification to prospective vendors that the issue of "general condition" would be a measure by which the agency would determine the responsiveness or level of responsiveness of a proposed vendor. There has been no proof to show how the general condition deficit DOT ascribes to the Winchester property bears any relationship to the efficient and economical conduct of the Department's operations planned for the requested office space. While it is understandable that an agency or any lessee would want a building in good condition, the requirement for rating of the "general condition" of such a building must be noticed in the RFP by the agency in order for vendors to know that they will be held accountable for complying with such a standard. Even had the standard concerning "general condition" been a published standard in the RFP, it has not been demonstrated that the Winchester property would fail to comply therewith. Mr. Dolson, testifying for the Department and the Intervenor, cited conditions involving deteriorated doors, overgrown areas behind the building, and bars on the windows of the building which created a perception of an unsafe condition, along with beer and liquor bottles on the premises. This concern in reality, according to his testimony, appears to be more related to the perceived security or safety risk already discussed and dealt with above; but it was not demonstrated how that would have any effect on actual efficient and economical performance of the functions the Department personnel would use the office space for. Further, in consideration of the security requirements that Winchester has agreed to comply with concerning locks on doors and other building security arrangements required at paragraph 10, page 6 of the RFP, and the requirements concerning maintenance and janitorial service, among which is the stipulation that painting of the building should be accomplished every two years at minimum, or as needed; the vendor to be awarded the lease would be required to maintain the doors, grounds and other aspects of the property criticized under the heading "general condition" in good repair on pain of rescission of the lease for failure to do so. In any event, because the standard imposed by the agency for "general condition" is not encompassed within any evaluation criteria in the RFP, which was noticed to the proposed vendors, no vendor can be penalized in the consideration of its proposal for the perceived level of its compliance with such a condition. The RFP, at page 2, paragraph 7, requires approximately 80 off-street on-site marked spaces for DOT use only, for employees and clients. The parking spaces are required to be under the control of the bidder and to be suitably paved and lined, with bumper pads installed. Although the RFP requirement only refers to approximately 80 spaces being available, both the Petitioner and Intervenor responded to this requirement by assuring that 80 exclusive spaces were available on site at no cost to the proposed lessee, DOT. Although the Intervenor makes mention in its testimony of the fact that the Blairstone Center offers in excess of 80 lined, paved parking spaces on site and off-street and that some of them are covered spaces (approximately 10), there is no requirement in the RFP for in excess of 80 spaces, but rather approximately 80. There is no requirement in the RFP that any of the spaces be covered parking. Mr. Dolson, testifying for DOT, indicated that he counted approximately 72 to 73 spaces on the Winchester site. Mr. Dolson never visited the site during the evaluation process, however. Other witnesses for DOT indicated that they were not convinced that 80 spaces existed on site and that Mr. Winchester indicated that parking could be made available on an adjacent, unpaved vacant lot owned by Winchester. In fact, however, it was established by Winchester Properties that the required 80 lined, paved, bumper-equipped parking spaces were available on site and that parking on the adjacent vacant lot could be made available in addition to the 80 spaces referenced in the RFP. Although the Respondent Department mentioned at paragraph 26 of its proposed findings of fact that Winchester's formal written protest admitted that parking could be made available on such "adjacent vacant lot", in fact, the referenced portion of Winchester's formal written protest asserts that there are in excess of 80 parking spaces. In addition, Winchester states in its petition that the team (meaning the evaluation team) was advised that the adjacent vacant lot is owned by Winchester Properties and that more parking could be made available on that lot. In summary, it is found that Winchester never represented that the 80 spaces would include spaces available on the adjacent, unpaved vacant lot, but rather that the 80 paved, lined, bumper-equipped parking spaces would be those on the building site, as required by the RFP, and that additional parking, if necessary, could be made available on the adjacent lot. Consequently, there is no justification for the subtraction of two points in the evaluation calculations attributable to the Winchester Properties' proposal, as to the evaluation criteria concerning the effect of environmental factors, including the physical characteristics of the building and area surrounding it on the efficient and economical conduct of Department operations, as it relates to parking. There is no dispute that the Winchester proposal represents the lowest rental rate which would be charged for the requested office space and that the Blairstone/Linder proposal represents the highest rental charge of the offering vendors. The terms of the RFP require that the annual rental rates proposed by the vendors be for a five-year lease, reduced to present value for comparison purposes. The RFP also requested rental rates for a subsequent three-year option period which, according to the terms of the RFP, was not included in the present value analysis or comparison between the vendors. The response of the vendors and Respondent's Exhibits 1, 2 and 5 indicate that the present value of the Winchester building rental rate is $568,820.86 for the five years and is the low bid. It was thus appropriately awarded the maximum of 30 points for the rental rate category of the RFP. The present value of the Blairstone Center rental rate was $719,169.87 or $150,349.11 more than the lowest Winchester bid. Its point ranking for rental charge was thus reduced proportionately by 7.9 points to 22.1 points. If the additional cost for the three-year option period were considered, the Blairstone proposal is some $348,000.00 more expensive than that proposed by Winchester Properties. The method of calculation of the rental rate comparison and the points assigned to the Petitioner and Intervenor by the department's method of scoring was shown to be reasonable and appropriate, given the terms of the RFP. In summary, it has been demonstrated that both the Petitioner and Intervenor made responsive bids; and the Department does not take the position that either bid was unresponsive. The above Findings of Fact reveal that, indeed, Winchester Properties' proposal is the best bid. There is no dispute that it is the lowest cost bid. The Winchester proposal was shown to comport with the requirements of the RFP in light of the above Findings of Fact which demonstrate that the 13 point deduction for unsuitable arrangement of offices was not justified as found above nor was the 7 point deduction for security risk, the 2 point deduction for parking-space requirements, and the 3 point deduction for general condition. The 4 point deduction for the split-floor arrangement of the Winchester property was appropriate, given that the RFP standard concerning conformance of and susceptibility of the design of the space offered to efficient layout and so forth does constitute sufficient notification that the layout of offices on multiple floors or alternatively, on one floor, would be an evaluation consideration. Thus, it has been demonstrated that the Winchester proposal, under the Department's point-scoring system, should, in reality, be accorded a score of 92 points, which demonstrates, given the above Findings of Fact, that it is the lowest, best and most responsive bid.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that the Respondent, Department of Transportation, enter a Final Order awarding lease #550:0189 to Winchester Properties for the lease of office space, as more particularly described in the Petitioner's response to the RFP, and in the record herein, for the building owned by the Petitioner located at 305 Blount Street, Tallahassee, Florida. DONE AND ENTERED this 6th day of February, 1990, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of February, 1990.
The Issue Whether Interstate-Tallahassee West has demonstrated that development rights in certain real property it owns have vested against the provisions of the 2010 Comprehensive Plan?
Findings Of Fact The Purchase of the Property. In the Spring and Summer of 1985, Thomas W. Anthony began an inquiry relative to the purchase and development of 21.5 acres (original tract) located at the intersection of Capital Circle West and I-10. (R-2, pp. 11-15.) On December 11, 1985, a Deposit Receipt and Contract for Sale and Purchase was executed between Rehold, Inc. and C. Gary Skartvedt, Thomas W. Anthony, and Mary J. Price, d/b/a Denver West Joint Venture (Denver, Colorado) for the purchase of the original tract. (Deposit Receipt and Contract for Sale and Purchase.) On March 14, 1986, the Interstate-Tallahassee West Partnership Agreement was executed and Interstate purchased the original tract from Rehold, Inc. (Chronological Listing of Events, p. 1.) At the time of the closing on the initial purchase of the original tract, the property was zoned C-2, with the exception of a small portion in the northwest corner of the tract which was zoned A-2. (R-2, pp. 34-35, Preliminary Plat approved on January 18, 1990.) Development Chronology. During 1987 and 1988 the original tract was held to realize growth potential in terms of Interstate's economic investment. (Chronological Listing of Events, p. 2.) In 1989, Interstate began negotiations for the sale of a portion of the original tract to Kent C. Deeb (Deeb). (Chronological Listing of Events, p. 2.) On June 26, 1989, Broward Davis and Associates, Inc. prepared a drawing of easement location and depiction of a 25 year flood line relative to the portion of the original tract which was the subject of the negotiations between Interstate and Deeb. (Chronological Listing of Events, p. 2, R-2 p. 20.) On September 12, 1989, Tilden Lobnitz and Cooper, Inc., (Consulting Engineers) recommended a reconfiguration of the original tract relative to the location of high voltage power lines. (Chronological Listing of Events, p. 2.) On October 11,1989, final descriptions of the lakes on the original tract were prepared for Interstate by Broward Davis and Associates. (Chronological Listing of Events p. 2.) On November 13, 1989, a sketch depicting a revised legal description of a proposal to subdivide the subject property was prepared for Interstate by Broward Davis and Associates, Inc. (Chronological Listing of Events, p. 2.) On December 7, 1989, an Environmental Assessment of the site was prepared for Interstate by Jim Stidham and Associates. (Chronological Listing of Events, p. 2.) On December 14, 1989, Deeb executed a Purchase and Sale Agreement which contemplated the conditional purchase of 6.98 acres of the original tract from Interstate. Interstate signed the Purchase and Sale Agreement on December 27, 1989. (Purchase and Sale Agreement, p. 8.) Interstate contends the execution of this Purchase and Sale Agreement resulted in it incurring substantial contractual obligations and argues that these obligations (along with other items and events) are elements in support of "common law vesting" of its development rights. This agreement is the subject of expanded discussion later in this Final Order. The services that Interstate obtained during 1989 (as described in paragraphs 6-11 above) were related to the eventual consummation of the Purchase and Sale Agreement with Deeb. (R-2, pp. 20-21 and 27, Chronological listing of Events, p. 2.) On January 18, 1990, the Tallahassee-Leon County Planning Commission approved Interstate's Preliminary Plat of the subject property. (Chronological Listing of Events, p. 3.) On April 4, 1990, the Tallahassee City Commission approved Interstate's previously filed application to rezone a portion of the subject property from A-2 to C-2. (Chronological Listing of Events, p. 3.) Interstate entered into a written Utility Agreement with the City on or about July 10,1990. (Letter of agreement dated June 25, 1990 from Henry L. Holshouser, Director of Growth Management, to Interstate Tallahassee West.) The Utility Agreement is the subject of expanded discussion later in this Final Order. On August 20, 1990 a Vested Rights Application covering 6.98 acres of the original tract, which is the subject of the Purchase and Sale Agreement between Interstate and Deeb, was approved. (Letter dated August 21,1990 to Kent Deeb from Mark L. Gumula, Director of Planning, Tallahassee-Leon Planning Commission, containing CERTIFICATION OF VESTED STATUS.) The Vested Rights Application for the approximately 15.6 acres remaining of the original tract was disapproved by the Staff Committee and that portion of the property is the subject of this appeal. (R-1, p. 17.) Interstate has not prepared a specific building or development design for the property which is the subject of this appeal. (R-2, p. 97, R-1, p. 5.) As of the date of the hearing in this case, Interstate had no specific building plans for the property which is the subject of this appeal. (R-2, p. 38.) As of the date of the hearing in this case, Interstate had not chosen a specific land use for the property. (R-2, pp. 38-39.) As of the date of the hearing in this case, Interstate had not made application for environmental permits for the property. (R-2, pp. 49 and 98.) As of the date of the hearing in this case, the only infrastructure that had been constructed on the original tract are two storm water ponds which were built in the 1970's, and prior to Interstate's purchase of the property. (R-2, pp. 86, 87.) Interstate was never assured by the City that the property could be used for any specific use such as a motel, apartments or offices. Interstate and the City made no commitments as to any specific uses of the property. (R-2, pp. 47-48.) The City advised Interstate by letter dated August 13, 1990, that the 2010 Comprehensive Plan requires Planned Unit Development zoning for an office park (which is by definition an office building or buildings of more than 40,000 square feet). (Letter from Martin P. Black, City's Chief of Land Use Administration, to Interstate Tallahassee West, dated August 13, 1990.) The City did not advise Interstate that it could not build such an office building on its property. (R-2, pp. 45, 46, and 100.) As of the date of the hearing in this case, Interstate had not requested a determination from the City as to whether the 2010 Comprehensive Plan would prohibit development of the property as the market might dictate. (R-2, p. 40.) At the hearing in this case, Interstate presented the testimony of Mr. Deeb regarding the existence of a master environmental permit for the original tract which was in place before Interstate purchased the property. (R-2, p. 67.) However, Interstate offered no evidence that such permit contemplated any specific use or density regarding development of the property. Costs Associated with Interstate's Property. Interstate purchased the original tract in 1986 at a cost of $748,000. (R-2, p. 17; Development Expenditures.) The cost to purchase the property was not incurred in reliance on any representation of the City. Interstate has expended $325,063.82 in interest on acquisition loans, pursuant to the property purchase. (Development Expenditures.) The interest cost on acquisition loans was not incurred in reliance on any representation of the City. Interstate has expended $46,824.95 in Ad Valorem taxes on the property. (Development Expenditures) These costs were not incurred based on any representation of the City. Interstate has expended $28,839.75 on engineering and survey work on the property. (Development Expenditures) The costs of the engineering and survey work during 1989 were substantially incurred by Interstate in conjunction with the negotiations of the potential sale of the 6.98 acre parcel of its property to Deeb. (Chronological Listing of Events, pp. 2-3; R-2, p. 27.) These costs were not incurred based upon any representation of the City. Interstate has expended $8,500.00 in legal and miscellaneous fees associated with development of the original tract and the potential sale of the 6.98 acres to Deeb. (Chronological Listing, Development Expenditures) Interstate has failed to prove that these costs were incurred based on any representation of the City. The Purchase and Sale Agreement with Deeb. Negotiations between Interstate and Deeb regarding The Purchase and Sale Agreement began in the Spring of 1989. (R-2, p. 20.) Deeb executed the agreement on December 14, 1989, and the Interstate partners signed the agreement on December 27, 1989. (Purchase and Sale Agreement, p. 8.) Interstate does not assert that the City was privy to this agreement and has failed to prove that it relied on any representation of the City in entering into this agreement or in incurring any costs or future obligations pursuant to the agreement. Interstate was aware that the 2010 Comprehensive Plan was being developed when the Tallahassee-Leon Planning Commission approved Interstate's Preliminary Plat on January 18, 1990. (R-2, p. 50.) Interstate knew that the Comprehensive Plan "was coming" at the time Mr. Anthony (partner in Interstate) understood that the original tract was to be subdivided in order to "cut out" a site for Deeb so as to "key on him" as to the development of the property. (R-2, p. 46.) The Preliminary Subdivision Plat drawing, subsequently presented to the Tallahassee-Leon Planning Commission, is dated November 29, 1990. (Preliminary Subdivision Plat as approved on January 18, 1990.) The testimony of Thomas W. Anthony that Interstate would not have entered into the Purchase and Sale Agreement with Deeb if it knew that it would not be able to move forward with C-2 development of the remaining lots is accepted. (R-2, p. 36.) However, Interstate has failed to prove that it relied on any representation of the City that it could so proceed upon adoption of the 2010 Comprehensive Plan. The Utility Agreement. The Utility Agreement (previously described in paragraph 16) was executed by the City on June 25, 1990. The agreement was signed by on behalf of Interstate on June 29, 1990, by C. W. Harbin and Tommy Faircloth, and on July 10, 1990, by Mr. Anthony. This agreement outlines what Interstate and the City have each agreed to do in terms of Interstate's proposed development. The agreement describes Interstate's proposed development activity in general terms as "commercial development". In this agreement, the City makes no representation or commitments relative to any specific land use or specific density concerning Interstate's property. Interstate has failed to prove that the City, in executing the Utility Agreement, made any representation upon which Interstate relied in incurring any costs or future obligations. The Preliminary Plat Approval. The Preliminary Plat Approval of January 18, 1990, does not contemplate any specific uses, intensities or designations. (R-2, pp. 47-48.) Interstate has failed to prove that the approval of the Preliminary Plat constitutes an act or representation upon which Interstate relied in incurring any costs or future obligations. The A-2 Rezoning Approval. Interstate has failed to prove that it relied upon the act of the City, in approving Interstate's request to rezone a portion of the original tract from A-2 to C-2 in incurring any costs or future obligations. Interstate's Application for Vested Rights. On or about July 25, 1990, Interstate filed an application for vested rights determination (Application), with the Tallahassee-Leon County Planning Department. (Application VR0008T.) The Following information concerning the development of the subject property is contained on the Application: "Kent C. Deeb" is listed as the "owner/agent". Question 3 lists the name of the project as "Interstates Tallahassee West." The project is described as a "Four Lot Subdivision." The project location is described as "lots 1 and 2 Block A Commonwealth Center." The total project costs are estimated at $2.5 Million." Progress towards completion of the project is listed as: A. Planning: "Plans; Rezoning; Subdivision Plat Approval; Utility Agreement for Extension with the City"; B. Permitting: "Existing with the original Commonwealth Center Development; C. Site Preparation: "Zoning, Platting, and Plans"; D. Construction: "Original Holding Ponds". Total expenditures to date attributed to the progress towards completion of the project are listed as $1.325 Million. The form of government approval allowing the project to proceed is listed as "Original Plat; Rezoning; Subdivision Plat." On August 20, 1990, a hearing was held to consider the application before the City's three member Staff Committee. Kent C. Deeb appeared and testified for Interstate. By letter dated August 21, 1990, Mark Gumula, Director of Planning for the Tallahassee-Leon Planning Department, informed Interstate that the Application had been denied. During the hearing before the undersigned, Interstate stipulated that it sought approval of its Application based upon "common law vesting" and not upon "statutory vesting," as those terms are defined in City of Tallahassee Ordinance 90-0-0043AA.
The Issue The issue is whether the City of Panama City's small scale development amendment adopted by Ordinance No. 2055.1 on February 8, 2005, is in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background Creekstone is a limited liability corporation and presumed to be the owner of a 3.212-acre tract of land at 305 East Beach Drive, Panama City.3 (The record does not show when or if Creekstone actually purchased the property; when the application for a land use change on the property was filed with the City, Creekstone was a contract purchaser. In its Proposed Recommended Order, however, the City states that Creekstone "recently acquired" the property.) The property lies at the northwest edge of a residential area known as The Cove and is just south of the central business district of the City. The Cove is separated from the business district by a small waterbody known as Massalina Bayou (Bayou), which is spanned by the Tarpon Bridge (Bridge) at one of the Bayou's most narrow points. The 225-foot Bridge provides the most direct and easiest access between the two areas of the City. For many years, and beginning before the City adopted its Plan, Tibbetts Boat Works, Inc. (Tibbets) occupied the site and was engaged in the boat repair business, consisting of hull repair, engine maintenance, other mechanical services, and boat bottom painting, a legal but nonconforming use under the City's land development code. Photographs of the area suggest that the business is no longer active, presumably because the property has been sold. On or about December 8, 2004, SFB Investment Company, LLLP (SFB), who then owned the property but had a contract to sell it to Creekstone, filed an application with the City Planning Board seeking a change in the land use and zoning on the property. At the Planning Board meeting on January 10, 2005, the staff noted that the proposed change would "allow an encroachment of commercial into a predominately residential area" and recommended denial of the application on the ground that the change "is inconsistent with the LDR and the Comp Plan."4 By a 3-1 vote, the City Planning Board rejected the staff recommendation and recommended that the application be approved. On February 8, 2005, by a 4-1 vote, the City accepted the recommendation of the City Planning Board and adopted Ordinance No. 2055.1, which amended the FLUM by reclassifying the land use designation on the property from MU to GC for the purpose of allowing the owner to "develop [a] multi-family project on [the] property." (Simultaneously with that change, the City also changed the zoning on the property from Mixed Use- 3 to General Commercial-2, which allows a wide range of activities, including residential, professional office and services, low-intensity commercial, public/institutional/ utilities, and high-intensity commercial.) The MU land use classification "is intended to provide areas for medium to high density residential development and low intensity commercial development," allows a density of "not more than twenty (20) dwelling units per acre," and an intensity of "[n]o more than 75% lot coverage as determined by the size of the lot compared to the amount of impervious roof and driveway/ parking lot surface." On the other hand, the GC district is "intended to provide areas for high intensity commercial development, including retail sales and services, wholesale sales, shopping centers, office complexes, and other similar land uses." There are no density restrictions, but intensity is limited to "[n]o more than 90% lot coverage." Thus, while the two land uses are similar in some respects, the highest and best use on the property will now be "high intensity commercial development," such as shopping centers and office complexes, a much more intensive use than is presently permitted under the MU land use category. To address this concern, witness Harper indicated that SFB has filed a restrictive covenant on the property which includes a shoreline buffer, as well as use, height, and setback restrictions. At the Planning Board meeting on January 10, 2005, however, the staff stated "that a covenant would not be enforceable." Under the existing land use (MU), the owner can construct up to 64 residential units on the property. That number is derived by multiplying the size of the property (3.212 acres) times the allowed density (20 units per acre). However, the current zoning on the property (which is apparently tied to the MU land use category) prohibits the construction of buildings which exceed 65 feet in height. Because of this height restriction, which limits the number of residential units that can be constructed on the property, the owner has requested a change in the land use (and zoning) so that it can develop a multi-family residential condominium project (nine stories in height) with approximately 77 units. On March 10, 2005, Mr. Cooper filed his Petition challenging the small-scale amendment. He later filed an Amended Petition on April 21, 2005. Mr. Cooper resides and owns property one-half block south of the subject property (in an area designated as a special historical zone of the City) and submitted objections to the amendment during the adoption process. As such, he is an affected person and has standing to file this challenge. Joint Exhibit 9 reflects that Creekstone is a "contract purchaser" of the subject property. It also reflects that it appeared through counsel at the adoption hearing on February 8, 2005, and offered comments in support of the plan amendment. As such, Creekstone is an affected person and has standing to participate in this case. In the parties' Pre-Hearing Stipulation, Mr. Cooper (through his former counsel) identified numerous issues, many of which were not raised in his Amended Petition. At hearing, however, he contended only that the GC land use is incompatible with the character of the surrounding area, and that the amendment is internally inconsistent with Objectives 1.1 and 1.4 and Policies 1.1.1, 1.2.1, and 1.4.1 of the Future Land Use Element (FLUE) of the Plan. All of the objectives and policies relate to the compatibility issue. In all other respects, Petitioner agrees that the plan amendment is in compliance. Because the City's action involves a small scale (as opposed to a large scale) development plan amendment, the Department of Community Affairs did not formally review the plan amendment for compliance. See § 163.3187(3)(a), Fla. Stat. The Subject Property West Beach Drive runs in a northwest-southeast direction through the downtown business portion of the City until a few blocks north of the Bridge, where it changes to East Beach Drive. The roadway continues south across the Bridge and in a southerly direction along the eastern edge of St. Andrews Bay, a much larger waterbody which lies between the City and Panama City Beach. Approximately one-half mile south of the Bridge, East Beach Drive takes a 90-degree turn to the east. Most, if not all, of the peninsula south of the Bayou and Bridge and continuing until East Beach Drive turns to the east is known as The Cove, a part of which has been designated by the City as a historic special treatment zone because of its historical significance. The predominate character of The Cove is older, single-family homes. As noted above, the Bayou separates The Cove from the central business district and serves as a natural barrier between the two areas. The property is an odd-shaped parcel which sits just east of the southern terminus of the Bridge and fronts on the Bayou. (The central business district lies directly across the Bayou to the north and northwest, is classified as General Commercial or Public/Institutional, and includes a wide array of offices, government buildings, restaurants, and other commercial and public uses.) The western side of the property faces East Beach Drive. Immediately across East Beach Drive to the west (and facing St. Andrews Bay) is the Cove Harbor Condominium, a nine-story, multi-family residential condominium which was apparently constructed under MU standards, which apply to that parcel. Immediately to the east of the property is a single- family residence and then a two-story townhouse complex. The southern boundary of the property (which appears to run approximately 325 feet or so) faces East Second Court, a local road which begins on East Beach Drive and runs eastward until Watson Bayou (perhaps a mile or so away). Although a map of the historical district was not introduced into evidence by the parties, the northern and western reaches of the special treatment zone appear to begin just east of the intersection of East Second Court and East Beach Drive since the homes at 114 and 122 East Second Court are designated as having historical significance. See Respondent's Exhibit 4. These two homes appear to lie directly across the street from the southern boundary of Creekstone's property. Except for a two-story, multi-family structure (Cedar Cove Townhouses) which sits across East Second Court facing the southwest corner of the subject property, the remainder of the southern boundary of Creekstone's property faces four single-family homes. Several other multi-family structures are scattered throughout the area to the south and east, while the remainder of the neighborhood extending for at least one-half mile to the south and all the way to Watson Bayou on the east is predominately single-family residences. Finally, a condominium is located about one-half mile south of the property on the waterfront where East Beach Drive makes a 90-degree turn to the east. Except for Tibbets' activities, there is no commercial encroachment (by non-conforming use or land use classification) in the immediate area south of the Bridge and Bayou. The current FLUM shows that, with three exceptions, the entire area south of the Bridge and the Bayou to the end of the peninsula, and extending east at least a mile to Watson Bayou, is either classified as Mixed Use or Residential Low Density. (Perhaps a mile or so to the southeast there is one parcel classified as Recreation, another as Public/Institutional (which is probably a school), and a smaller adjoining parcel classified as General Commercial.) Thus, if the change is approved, the subject property will be the only parcel south of the Bridge and Bayou (except for the above exceptions which lie around a mile away) which is classified as commercial; the remainder is either mixed use or residential. Over the years, Tibbets has been the subject of City code enforcement actions, investigations by City code enforcement personnel, and investigations by the Department of Environmental Protection (DEP). It has also caused chronic environmental problems in the area. On August 27, 2002, DEP and Tibbets executed a Consent Order to resolve certain violations. Also, on April 10, 2001, Mr. Paul L. Benfield, who apparently either owned Tibbets or was associated with it in some manner, entered into a Consent Order with DEP because of his unlawful filling of 0.114 acres of jurisdictional wetlands on the site. It is fair to describe the subject property as blighted, unsightly, and in disrepair. Photographs received in evidence suggest that the business is no longer active. The parcel is fenced on three sides, and, besides an older structure which apparently housed Tibbets' office, the property contains a mixture of empty storage crates, pilings, and various pieces of equipment that were once used in the boat repair business. There are also several docks or small piers extending into the Bayou from the northwestern corner of the site. Finally, it appears that much of the eastern half of the parcel contains wetlands and is largely undeveloped. Although the staff report dated December 31, 2004, recommended denial of the application, noting that it would allow "an encroachment of commercial into a predominately residential area," it acknowledged that "[a]llowing this request can make a case for helping to rid this area of a problematic non- conforming use." See Joint Exhibit 6, page 2. Petitioner's Objections As narrowed at hearing, Mr. Cooper contends only that the plan amendment is not compatible with the character of the adjoining land in The Cove and is thus internally inconsistent with Objectives 1.1 and 1.4 and Policies 1.1.1, 1.2.1, and 1.4.1 of the FLUE. He also relies upon Policy 2.5.5(6)(e) of the City's Land Development Code. However, plan amendments do not have to be consistent with land development regulations in order to be in compliance. See § 163.3184(1)(b), Fla. Stat. Objective 1.1 requires that the City maintain a FLUM "which coordinates future land uses with . . . [compatibility]5 of adjacent land uses." Policy 1.1.1, which furthers that objective, provides in part that the City will regulate land uses through the designation of land use districts on a FLUM, and that the "location and extent of development within the City" should be "consistent with . . . compatibility of adjacent land uses." Under this objective and policy, then, land use districts on the FLUM should be located in a manner which assures compatibility with adjacent land uses. Objective 1.4 provides that the City shall "maintain procedures for the elimination or reduction of land uses inconsistent with the character of the City and the future land uses designated in the Plan." In furtherance of that objective, Policy 1.4.1 requires that the City "restrict proposed development which is inconsistent with the character of the community." Taken literally, the objective encourages the City to reduce or eliminate land uses that are inconsistent with the character of the surrounding area or other land use districts. In the same fashion, the policy requires that the City prohibit development that is not consistent with the character of the adjoining area. Finally, among other things, Policy 1.2.1 requires that the City "administer land development regulations for implementation of the Comprehensive Plan" in such a manner as to "ensure the compatibility of adjacent land uses." (The City has adopted such regulations for this purpose.) Because the implementation of land development regulations is not in issue, the provision does not appear to be relevant. According to the City's Director of Public Works, The Cove, or at least that part which lies in the area around Creekstone's property, is considered to be a part of the central business district since the two areas are "contiguous," and therefore the extension of the commercial land use district across the Bayou would be consistent with the character of the immediate area. The same view was also expressed by witness Grey. However, the two areas are physically separated by a waterbody (the Bayou) and are connected only by a 225-foot bridge which spans the Bayou at one of its most narrow points. At the same time, the land uses in the two areas are distinctly different: the business district contains a wide array of commercial and public/institutional uses while the predominate character of The Cove is single-family residential, with a scattering of multi-family residential dwellings such as townhouses and a condominium. The fact that the City interprets its GC district (presumably through its zoning regulations) as allowing certain residential uses does not change this dichotomy in character. Therefore, it is inappropriate to consider The Cove and the central business district as being contiguous, or to base a finding of compatibility on the fact that commercial uses are now found across the Bayou in the business district. The commercial land use classification has never been extended into the residential neighborhood south of the Bayou. If the change becomes effective, the new land use would be incompatible with the Residential Low Density and Mixed Use land uses which now make up the entire neighborhood. It would also be incompatible with the historic special treatment zone, which lies directly across the street from Creekstone's property. Finally, the creation of a commercial district in this area of The Cove would change the character of the neighborhood, and it is fair to infer that, even if SFB's covenant is enforceable, it would still lead to, and justify, the reclassification of other nearby parcels into commercial uses. Given these considerations, the proposed land use is internally inconsistent with the City's objective and policy that there be "[compatibility] of adjacent land uses," see Objective 1.1 and Policy 1.1.1, and Plan provisions encouraging the elimination of land uses and associated development which are inconsistent with the "character of the community." See Objective 1.4 and Policy 1.4.1. The minutes of the two meetings which culminated in the adoption of Ordinance No. 2055.1 reflect that the City's (and Planning Board's) principal rationale for the reclassification of the property was to eliminate an unsightly nonconforming use (boat repair business) which occupied the site. While it is true that the City's Plan encourages the revitalization and redevelopment of blighted areas, and provides that developers should be given "flexibility" when seeking to revitalize blighted areas, see Objectives 1.3 and 1.15 of the FLUE, there is no evidence that these objectives are intended to override (and trump) the provisions of the Plan which require that adjacent land uses be compatible with one another and preserve the character of the neighborhood.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a final order determining that the plan amendment adopted by Ordinance No. 2055.1 is not in compliance. DONE AND ENTERED this 19th day of August, 2005, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER 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 19th day of August, 2005.
Findings Of Fact Petitioner owns property located at 1315 N. Betty Lanes Lots 8 and 9, Block E, Pine Ridge Subdivision in Clearwater, Florida. This property is zoned "CO" (general commercial) The consumption of alcoholic beverages on, premises is not permitted on premises zoned "CO," and therefore requires conditional use approval. Petitioner applied for conditional use approval on or about February 20, 1986 and on March 18, 1986 the Planning and Zoning Board disapproved Petitioner's application for conditional use. Paula Harvey, Planning Directors recommended approval because her review of the application indicated the location was suitable for a restaurant and lounges and the police department indicated no reason for disapproval. She did condition her recommendation on Petitioner demonstrating that all parking requirements of the Land Development Code would be met. A 6,000 square foot; two-story building is located on the subject property, but Petitioner only intends to use 2500 square feet for a restaurant and lounge. Petitioner currently operates a bar serving beer and wine directly across Overlea Lane on Beverly Lanes about forty feet away from the subject property. He testified he intends to close his present bar if he obtains this conditional use approval and opens his restaurant and lounge on the subject property. At his present locations Petitioner serves beer and wine; but not food. On the subject property, he would not sell alcoholic beverages without food, except to 7 persons waiting to be seated in the restaurant. Other than Paula Harvey's testimony that the subject property does not have sufficient parking spaces for the utilization of the entire 6,000 square foot building as a restaurant and lounges there is no competent, substantial evidence in the record as to the number of parking spaces on the property. It cannot be determined if there would be sufficient parking if Petitioner used only 2,500 square feet for the restaurant and lounges and the remainder of the building for some other commercial purpose. The neighborhood surrounding the subject property includes a church, residential, shopping and commercial areas. In addition to Petitioner's present barb there is also one other bar in the neighborhood. Public testimony evidences neighborhood concern about noise, litter, traffic and fighting associated with Petitioner's present bar and Petitioner offered no testimony as to how he intended to control noise, litters traffic and fighting which can reasonably be expected to occur if he opens a 2500 square foot restaurant and lounge with seating for more than 150 people compared to his current 1,600 square foot beer and wine bar.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing relating to the issue of jurisdiction, the following relevant facts are found: On or about March 28, 1979, respondents T.V. Rodriquez and Trafalgar Developers of Florida, Inc. filed with the Department of Environmental Regulation an application for a permit to conduct dredge and fill activities on a 2.3 acre area located within a 495 acre planned unit development in Orlando. The 2.3 acre tract is located in a cypress swamp area in the northeast portion of the development site. The application sought authority to excavate 2,000 cubic yards of material for the installation of a five foot diameter drainage culvert, and to backfill the installed pipe with 3,000 cubic yards of fill material. All of the construction activity was to be confined to the 2.3 acre tract which, as noted above, was a cypress swamp area interior to the project boundaries. While there were no other property owners immediately adjacent to the cypress swamp upon which the dredging and filling was to occur, the applicants did provide for notification purposes the names of two property owners which were the closest, although not adjacent, to the proposed project site. Neither the petitioners nor the intervenors in this proceeding were among the two names provided. The Department of Environmental Regulation reviewed the application and, on April 5, 1980, requested further infor- mation. Upon receipt of this information, an employee of DER, Jim Morgan, conducted a field inspection of the dredge and fill site on May 10, 1979. It was Mr. Morgan's conclusion that the proposed project would result in the elimination of approxi- mately three percent of the wetlands associated with the eastern boundary of the 495 acre development, and would not significantly impact the remaining portion of the wetland community. Mr. Morgan recommended that the application be approved, with two specific conditions. One condition pertained to the containment of turbidity at the project site if the site is inundated during construction. The other condition pertained to a proposed swale for outfall of a planned ditch system for the drainage of the 495 acre planned unit development. On May 18, 1979, the Department of Environmental Regulation issued Permit No. 48-18682-4E to respondents to excavate 2,000 cubic yards of material for the installation of a five foot diameter drainage culvert and to backfill the installed pipe with 3,000 cubic yards of fill material suitable for use as-a golf course foundation. The permit contained the specific conditions recommended by Mr. Morgan. Specific Condition Number 1 reads as follows: "(1) The drainage plan for this proposed 495 acre planned unit development will require the lowering of the water table via way of a planned ditch system, thus making development feasible. This ditch system will ultimately [sici discharge to an existing county canal via way of a proposed swale, which is exempt from this department's per- mitting pursuant to Chapter 17-4.04(10)(k). A swale conveys water only during and immediately after the advent of a storm. This installation must conform to this explicit definition, otherwise, additional dredge and fill permits will be required, including the entire development's drainage facility. Upon completion of the development, this department shall be notified and periodic inspections will be performed by the department's staff to determine if the outfall conforms with the definition of a swale." By letters to DER dated August 20, 1979, the petitioners herein stated that they had just been informed on August 17, 1979, of the issuance of the subject permit to the respondents. Their original letters to the DER, as well as their amended and restated petition, claim that, as owners of property located adjacent to the property upon which the drainage project would be conducted pursuant to the subject permit, they were entitled to notice prior to the issuance of the permit and that their substantial interest will be affected by the drainage project authorized by said permit. The petitioners Frances Bandy and Charles R. Bandy own Lot 14 in Golden Acres which is a considerable distance from the 2.3 acre tract upon which respondents are permitted to conduct dredging and filling activities. The petitioners Anna and Lee Rowe and Fay M. Handy own Lots 20 and 21 in Golden Acres, as well as a five acre lake. These lots and lake are even further from the permitted dredge and fill site. None of the petitioners own property which is adjacent to the permitted 2.3 acre site. Betty J. Hardy, Wayne Hardy and Vista Landscaping Inc. moved to intervene in this proceeding by motion dated March 5, 1980. An amended motion to intervene was filed on March 17, 1980, adding Julian T. Hardy as a named party intervenor. The intervenors own and have a business interest in property located a considerable distance south of the permitted 2.3 acres. The intervenors conduct a wholesale nursery business on their property. Their complaint lies with the effect that the proposed drainage of the entire 495 acre development and the alleged drainage ditch located on property contiguous to their property will have on their property and business interests. As of the time of the hearing on March 18, 1980, construction pursuant to the permit issued on May 18, 1979, was approximately ninety-five percent (95 percent) complete.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the petitioners request for an administrative hearing pursuant to Section 120.57(1) be dismissed, with prejudice, for lack of jurisdiction. Respectfully submitted and entered this 22nd day of April, 1980, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Cleatous J. Simmons Lowndes, Drosdick and Doster Post Office Box 2809 Orlando, Florida 32802 Roger D. Schwenke Carlton, Fields, Ward, Emmanual, Smith and Cutler, P.A. Post Office Box 3239 Tampa, Florida 33601 Stanley J. Niego Office of General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Honorable Jacob Varn Secretary, Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
