The Issue Whether Centervillage Limited Partnership has demonstrated, by a preponderance of evidence, that development rights in certain real property it owns have vested against the provisions of the Tallahassee-Leon County 2010 Comprehensive Plan.
Findings Of Fact Procedure. On or about August 6, 1990, Centervillage filed an Application for Vested Rights Determination with the Tallahassee-Leon County Planning Department. (Application VR0027T) The following information concerning the development of the Centervillage property was contained on the Application: "Gerald E. Songy" is listed as the "owner/agent." Question 3 lists the name of the project as "Centervillage Limited Partnership." "Progress . . . Toward Completion" is described as:(1) planning, (2) site preparation, (3) Leon County environmental permits, (4) DER Dredge and Fill Permit, (5) DOT Drainage Connection Permit. Original P.U.D., Rezoning, Minor subdivision Approval and a stormwater agreement with Leon County, are included in Centervillage's application as forms of government approvals and as the actions of government relied on prior to committing funds toward completion of the proposed development. On September 10 and 17, 1990, hearings were held to consider the Application before the Staff Committee comprised of the City Attorney, the Director of Planning for the Tallahassee-Leon County Planning Commission and the Director of Growth Management for the City. By letter dated September 17, 1990, Mark Gumula, Director of Planning of the Tallahassee-Leon County Planning Department informed Centervillage that the Application had been denied. By letter dated September 28, 1990, to Mr. Gumula, Centervillage appealed the decision to deny the Application. By letter dated October 10, 1990, the Division of Administrative Hearings was requested to provide a Hearing Officer to review this matter. By agreement of the parties, the undersigned allowed the parties to supplement the record in this matter on November 26, 1990. The Property. Centervillage currently owns approximately 27.20 acres of property (the Property) located at the Northeast corner of Capital Circle, Northeast, and Centerville Road, Tallahassee, Florida (Application). Centervillage began assembling the Property, through various transactions, in the early 1980's. By October, 1984, Centervillage had acquired the bulk of the Property. (T-3 p. 23) Prior to Centervillage's initial acquisition of the Property, the prior owners of portions of the Property began development of the site as an industrial, mini-warehouse development. This prior development activity involved a series of violations of state and local environmental laws and regulations. (T-3 pp. 50-51, 59) As a result of improper development activities by the prior owners of the Property, fines were imposed and, at the time Centervillage made the initial purchase, the Property was subject to a Florida Department of Environmental Regulation (DER) consent order. (T-3 p. 26) Development Activity. The project that Centervillage proposes to develop is a shopping center containing 200,000 square feet of gross leasable space on approximately 18 of the total 27.20 acres. (T-3 p. 96) The balance of the property is dedicated to stormwater facilities. (T-3 pp. 96-99) During the process of acquiring the 27.20 acres it currently owns, Centervillage began preparing the Property for future development by clearing and demolishing existing structures such as mobile homes, concrete driveways, and wells. (T-1 pp. 27-28) Permits were obtained early in the process to demolish these structures and in December 1984, the front corner of the Property was selectively cleared. (T-1 p. 28) In April, 1986, Leon County (the County) began construction of a ditch on a portion of the perimeter of the Property. The purpose of this ditch was to allow stormwater discharge from a Centerville Road construction project that the County was involved in. The County had been unable to locate an alternative site to provide any catchment and holding facility to handle the stormwater run off and, as a result, had encountered problems with the Florida Department of Environmental Regulation (DER). (T-3, pp. 70-71) At the same time, Centervillage was involved in attempting to resolve problems associated with improper development activity on the Property by its previous owners. These factors led to cooperative efforts on the part of both Centervillage and the County in dealing with the DER and to conceptual agreements between the Centervillage and the County regarding aspects of future development of the Property. Centervillage granted the County a temporary easement for the purpose of constructing the drainage ditch. (T-1 p. 28, T-3 p. 52) The drainage ditch constructed on the site turned out to be a "long, skinny holding pond." (T-1 p. 29) The County constructed over 80 percent of the overall onsite perimeter ditch in mid to late 1986. (T-1 p. 29) The property subject to the temporary easement will be conveyed to the County pursuant to a formalized conceptual agreement between Centervillage and the County. (App. Ex. G, G-8) This agreement will be the subject of expanded discussion later in this Final Order. Construction of the majority of the current improvements on the Property began in June of 1989. The work consisted of: construction of a holding pond sized for commercial development; construction of some two and a half acres of wetlands; and construction of the perimeter ditch from the north end of the project to Centerville Road, then west along Centerville Road under Capital Circle. (T-1 pp. 30-31) The work also included vegetation of the perimeter ditch to create wetlands. (T-1 p. 31) This development activity also involved the placing of 50,000 to 60,000 cubic yards of fill material on the site. (T-1 p. 30) In May and June of 1989, Centervillage acquired over six acres of adjoining property in order to construct a stormwater facility which it had agreed to provide as part of its conceptual agreements with the County and in partial mitigation against prior improper development on the Property. (App. Ex. H, H-2; T-1 p. 11; T-3 pp. 125-126; T-3 pp. 26-27) The two and a half acres of new wetlands Centervillage constructed on the property was also in mitigation for prior improper development activity engaged in by previous owners of the Property. (T-1 p. 30) Further development has been permitted but not constructed. This work is to involve the construction of culverts, crossings, and onsite, upland filtration facilities. (T-1 pp. 31-32) As a result of the 1989 development activity, the northern 7.57 acres of the property has been excavated for the stormwater facility and some 18 acres of the Property have been filled from depths of two to six feet. (T-3 p. 97) Government Approvals. In July, 1984, the City approved Centervillage's request for a Planned Unit Development (P.U.D.) to allow the Property to be developed as a shopping center to be constructed in three phases. Each phase of construction was to involve 50,000 square feet of retail space. (App. Ex. G, G-1) In December, 1984, the City approved an amendment to the previously approved P.U.D., to add additional property and to expand the size of the development by the addition of approximately 20,000 square feet of retail space. (App. Ex. G, G-2) In January, 1988, Centervillage received rezoning approval from the P.U.D. to Commercial Parkway, limited use site plan (CP zoning). (App. Ex. G, G-3; T-3 pp. 25-26) The limited use site plan outlines, among other things, the limited access to the Property and the reestablishment of the canopy road on portions of Centerville Road which abut the property. (App. Ex. G, G-3) In May, 1988, the City approved Centervillage's application for minor subdivision approval. This minor subdivision approval established one parcel as the previously developed mini-warehouse site to the east of the Property and the other parcel as the Property as it currently exists except for 2.79 acres on Capital Circle which had not been acquired at that time. (App. Ex. G, G-4) In October, 1988, the City granted a separate minor subdivision approval which addressed the additional 2.79 acres. (Minor subdivision approval, dated October 26, 1988, signed by Donny Brown, Development Coordinator for the City.) The parcel containing the mini-warehouse facility was sold in 1986, and is no longer part of the Property. (T-1 pp. 37-38) On July 22, 1988, the DER issued an environmental permit to Centervillage. (App. Ex. E, E-9) This permit was a result of extensive negotiations between DER and Centervillage and also involved the County because of the County's own permitting problems with the road improvement Project. (T-1 pp. 63-65) This DER permit specifies that the "permit does not convey any vested rights." (App. Ex. E, E-9, paragraph 3) On August 17, 1988, the County issued Environmental Management Permit #88-0299 to Centervillage. This permit was for "earth work only" and specified that "stormwater runoff [would] be required upon final development plans." (App. Ex. E, E-1) On October 25, 1988, the County accepted Centervillage's hydrological analysis on the Property. (App. Ex. E, E-3) On December 5, 1988, Centervillage received notification from the County that the project site was exempt from site plan review. (App. Ex. E, E- 9) Currently, there is not a city-approved site plan for the Centervillage project. (T-3 p. 115) On May 3, 1989, the County issued Environmental Permit #89-0230. This permit reflects approval of an additional of 630,000 square feet of impervious surface to the site. Centervillage's application for this permit also lists the proposed use of the Property as "M-1 mini-warehouses and CP shopping center." (App. Ex. E, E-5) Centervillage began its construction of the majority of current site improvements in June of 1989. (T-1 p. 30) In meetings between Centervillage and the City it was never confirmed that the approval of an additional 630,000 square feet of impervious surface on the site was a valid assumption. (T-3 p. 138) The County issued two additional environmental permits in 1989, one for tree removal (App. Ex. E, E-6) and one for stormwater permit amendments. (App. Ex. E, E-7) In March, 1990, the County issued an additional environmental permit for tree removal. (App. Ex. E, E-8) In January and in June, 1990, the Florida Department of Transportation (DOT) issued two separate drainage connection permits to Centervillage. (App. Ex. E, E-10, E-11) Until October, 1990, the County performed the environmental regulatory services for both the County and the City. (T-3 p. 56) At the time the County issued the environmental permits described in this Final Order, there was no City of Tallahassee Environmental Ordinance. (T- 3 pp. 73-74) At the time the County issued the environmental permits described in this Final Order, the County Chief of Environmental Management regularly appeared before the Tallahassee City Commission as part of his duties in issuing environmental permits for property within the City. (T-3 p. 56) At the time the County environmental permits described in this Final Order were issued to Centervillage, the City would look to a County environmental permit before issuing a building permit. (T-3 p. 74) At the November 26, 1990, hearing in this case, the Chief of Environmental Management for the County testified that he knew of no specific resolution or ordinance that granted environmental permitting authority within city limits to the County. (T-3 pp. 74-75) However, the testimony at the November 26, 1990, hearing in this case establishes that the City relied on the County's environmental permitting in making its own permitting decisions. (T-3 pp. 56, 73-75) In practice and effect, the County was acting on behalf of the City in granting local environmental permits. (T-3 pp. 73-80) The County has never been delegated the authority to make land use decisions, such as subdivision approvals, for property within the City. (T-3 pp. 74-76) The rezoning of the Property from P.U.D. to CP Zoning, approved by the City in January, 1988, provided no specific approval of densities and intensities for development of the Centervillage project. (T-3 pp. 130-132) When Centervillage requested rezoning of the Property from P.U.D. in January, 1988, its managing general partner assumed that as part of the approved zoning change it received approval for the same density and intensity of development that existed under the P.U.D. (T-3 p. 125) The Conceptual Agreement. In early 1986, the County was in the process of attempting to widen and improve Centerville Road. (T-1 p. 28) During this construction by the County, the DER asserted jurisdiction over the road project and the construction was stalled because the County did not have adequate property on which to construct facilities for the storage and treatment of stormwater runoff generated by the road construction project. (T-3 pp. 70-71, 82-84) During the initial rezoning and permitting process, Centervillage was required to address the effects of prior improper development activity engaged in on a portion of the Property by previous owners. As a result of the prior improper development on the Property, Centervillage was required to mitigate against flooding problems and to facilitate revegetation of a denuded canopy road segment along Centerville Road. (T-3 p. 52) On April 11, 1986, James G. Parrish, Administrator for the County, presented Centervillage with a conceptual agreement whereby, among other things, Centervillage agreed to grant necessary easements to the County for the construction of a drainage ditch on the Property to accept and store stormwater runoff from the County's Centerville Road improvement project. (App. Ex. G, G- 6) During 1986, the County and Centervillage cooperated through a series of permitting contacts specific to the development of a shopping center, to establish a major regional water management facility, to provide water management for the Centerville Road project, and to engage in cooperative efforts to reforest the canopy road. (T-3 pp. 52-53) These cooperative permitting contacts included contacts with the DER. (T-3 p. 53) The conceptual agreement was finally formalized and adopted by the Leon County Commission on July 18, 1989. (App. Ex. G, G-8) In this agreement, Centervillage obligated itself to acquire additional property, construct a stormwater management facility and to convey the completed facility to the County. (App. Ex. G, G-8) In the formalized conceptual agreement, the County agreed to fully cooperate in the efforts of Centervillage to obtain all permits necessary to complete all improvements in accordance with the DER permit issued to Centervillage in July, 1988. (App. Ex. G, G-8) The formalized conceptual agreement further provides that the County will not require any additional stormwater retention or detention above that required by the County environmental permit issued to Centervillage previously. (App. Ex. G, G-8) The agreement also provides that the County will allow Centervillage to develop the southwest portion of the Property, fronting Capital Circle Northeast and Centerville Road," to its fullest commercial potential, subject only to existing zoning ordinances, terms and conditions of the limited use site plan, approval of subsequent short-term applications for environmental management permits, and Leon County Environmental Permit number 88-0299." This portion of the agreement also provides that the property will no longer be "protected from development." (App. Ex. G, G-8, paragraph 8) Centervillage is obligated, pursuant to the agreement, to convey in excess of 7 acres of property and the drainage ditch area for no additional consideration. (T-3 pp. 85-86) Absent the agreement of Centervillage to provide stormwater drainage and retention on the Property and to convey that portion of the Property to the County, the County could not have completed the Centerville Road improvement project. (T-3 pp. 70-71) Centervillage's agreement to donate land to the County was tied to the DER permits issued to both Centervillage and the County. (T-1 p. 41) Centervillage's agreement to provide the 7.57 acre stormwater facility to the County was a required condition in connection with the issuance of the environmental management permit issued by the County. (T-3 p. 88) The City was privy to the conceptual agreement between Centervillage and the County from the development stages through to its final, formal approval by the County Commission in July 1989. The plans for the stormwater facility were discussed with and reviewed by the City, with the understanding that the city would accept and maintain the facilities. (T-3 pp. 86-87) During these discussion with City personnel, there was no indication given that the agreement included land use decisions. (T-3 pp. 90-91) The 7.57 acre stormwater facility serves more than the development area. The facility is a major component of the total drainage system for the City of Tallahassee. (T-3 p. 88) The size of the 7.57 acre stormwater facility is not directly related to the Centervillage development proposal. (T-3 p. 90) Development Expenses. The cost of purchasing the original tract was $1,812,012.00. Centervillage has since sold a portion of the original tract for $738,282.00. Centervillage's net land costs for the Property are $1,073,730.00. (App. Ex. C, C-1) Centervillage incurred costs of $175,000.00 in purchasing land pursuant to the conceptual agreement with the County. (T-3 pp. 123-126) Other than the $175,000.00 expended pursuant to the conceptual agreement, the balance of costs of purchase of land were not incurred in reliance on any act or omission of the City. Interest and property taxes paid by Centervillage were $1,279,753.30. (App. Ex. C, C-1) No significant portion of the costs attributed to interest and property taxes were incurred in reliance on any act or omission of the City. Centervillage incurred $543,624.50 in costs associated with site work, clearing, and landscaping on the Property. Significant portions of these costs were incurred beginning in June, 1989. (T-1 pp. 30-31) These costs were substantially incurred after Centervillage had engaged in extensive negotiations with state and local government entities and after permits were issued by the state DER and DOT as well as environmental permits issued by the County. At the time the County issued these permits it was, in practice and effect, acting on behalf of the City. These negotiations, agreements, permits and approvals are outlined in the Government Approvals portion of this Final Order. Centervillage has established that it expended well in excess of $400,000.00 on testing, inspection, soil investigation, engineer and survey fees, architectural fees, legal and title fees and general development expenses associated with the development of the Property. (App. Ex. C, C-1) Centervillage has proved that a significant portion of these "soft costs" were expanded during the period it engaged in extensive negotiations with and after Centervillage obtained permits and approvals from the various state and local government entities as outlined in the Government Approvals portion of this Final Order. Centervillage would not have made the large expenditure of funds, or made the commitment to convey significant portions of the property to the County pursuant to the Conceptual Agreement if it had not obtained the zoning approvals and environmental permits that were necessary to construct a community size shopping center of approximately 200,000 square feet. (T-1 pp. 68-70; T-3 pp. 127-128) The evidence in this case establishes that Centervillage reasonably relied on the approvals and environmental permits it obtained from state and local governments, as well as on the conceptual agreement between Centervillage and the County in changing its position and in incurring substantial costs associated with the development of the Property. Current Status of the Development. Centervillage took a site that was a drainage way, added properties to it, accomplished an enormous amount of permitting and fill work to come up with a fairly level buildable site suitable for building anything allowed within the zoning and the Comprehensive Plan. (T-1 p. 18) The shopping center project has been pursued by Centervillage for the past several years. Centervillage has never proposed any alternative plans to the City or other governmental authorities in the history of its project. (T-3 pp. 57-60, 82; T-1 pp. 17-18) Environmental Management Permit #89-0230, issued on May 3, 1989, by the County, contemplated approval of the addition of 630,000 square feet of impervious surface to the Property. (App. Ex. E) Centervillage relied on this approval and incurred substantial costs in proceeding with the further development of the Property. At the hearing on November 26, 1990, Centervillage presented the testimony of Richard Moore, a licensed professional engineer. (T-3 p. 94) Mr. Moore has been involved with the Centervillage project for seven years. (T-3 p. 95) Mr. Moore testified that he prepared a layout based on several planning concepts on engineering design and determined that 630,000 square feet of impervious surface allowed 200,000 square feet of gross leasable space and allowed the development of adequate parking with good internal circulation and sufficient green areas to allow for aesthetic landscaping. (T-3 pp. 106-107) Mr. Moore further testified that this square footage ratio is on average with design standards accepted in the engineering community. (T-3 p. 107) According to Mr. Moore's testimony, if Centervillage is required to meet consistency and concurrency requirements of the 2010 Comprehensive Plan, the shopping center development could be limited or delayed because the Property is located on a constrained roadway. (T-3 pp. 103-106) The DOT and the City have scheduled widening of Capital Circle, on which the Centervillage Property fronts, for 1991. (T-3 pp. 109-110) However, based upon Mr. Moore's testimony, Centervillage has established that constrained roadway limitations could limit or delay the project under the 2010 Comprehensive Plan despite the current improvement schedule. According to Mr. Moore's testimony, under the 2010 Comprehensive Plan, the proximity of the Property to Centerville Road, a canopy road, could limit the development of a shopping center to 100,000 square feet of leasable space. (T-3 pp. 103-104) As of July 16, 1990, the date of adoption of the City of Tallahassee Vesting Ordinance, the stormwater facilities on the Property were not complete. Additional water treatment facilities must still be constructed for runoff from the site. (T-3 pp. 19-21) No roadways, water and sewer services or electrical services have been constructed on site. (T-3 p. 108)
The Issue The issue is whether a development order adopted by Respondent City of Marathon by Resolution PC00-09-04 is consistent with the comprehensive plan, land development regulations, and statutes.
Findings Of Fact Respondent City of Marathon (Marathon) was incorporated on November 30, 1999. It adopted as its land development regulations (LDR) the LDRs of Monroe County in effect at the time of Marathon's incorporation. Marathon is within The Florida Keys Area of Critical State Concern. This case involves a development order that Marathon issued to Respondent Banana Bay of Marathon, Inc. (BB). As Planning Commission Resolution 00-09-04, the development order authorizes BB to add 12 motel rooms to an existing motel in return for imposing certain restrictions on the use of wet slips at its adjacent marina that is part of the same motel/marina development. The restrictions require the removal of cable television connections from 12 slips and limitation upon vessels using these 12 slips to those without plumbing facilities. For the remaining wet slips at the marina, the development order requires BB to limit their use to no more than 18 vessels at one time and to provide mandatory sewage pumpout for these vessels. At various points in the record and this recommended order, references to a "transfer" of 12 marina slips for 12 motel rooms refer to the conditions set forth in this paragraph. BB owns 7.39 acres of upland and 2.67 acres of adjacent bay bottom in Marathon at mile marker 49.5 (Subject Property or, as developed, Banana Bay). The Subject Property runs from U.S. Route 1 to the water. The Subject Property contains 60 motel rooms in two buildings, a conference room, a motel office, support buildings, three apartments suitable for employee use, and a marina. The marina includes 40-50 slips, depending upon the size of the moored vessels. The Subject Property is zoned Suburban Commercial (SC) and Mixed Use (MU). About 2.4 acres (104,544 square feet) running about 350 feet from U.S. Route 1 is SC. About 4.99 acres (217,364 square feet) is zoned MU. The additional 2.67 acres of adjacent bay bottom are also zoned MU, although the submerged acreage is unimportant for reasons discussed below. Twenty-five of the motel rooms are in SC, and 35 of the motel rooms are in MU, although the distinction between zoning districts is also unimportant for reasons discussed below. LDR Code Section 9.5-267 authorizes ten "rooms" per ”acre" as "allocated density" for motel uses in SC and MU and 15 "rooms" per "buildable acre" as "maximum net density" for motel uses in SC and MU. (There is no difference between "hotels" and "motels" in this case; all references to "motels" include "hotels.") Three fundamental questions emerge concerning the application of these two density limitations to this case. The first is whether BB must satisfy both the "allocated density" and "maximum net density" limitation. This is not a difficult issue; BB's proposal must satisfy each of these density limitations. The second question is what is included in the areas under each of these density limitations. Notwithstanding the use of "gross acres" in the "allocated density" formula, it is necessary to net out certain areas--just less than is netted out in the "maximum net density" formula. The third question is what constitutes a "room." When applied to marine-based units, the definition of a "room" presents a difficult and important issue. As a whole, the LDRs imply that no marine-based dwelling units should count as "rooms," but one provision specifically requires the inclusion of "live-aboard" units in density calculations. The first question requires little analysis. As noted below in the discussion of the two types of areas, "allocated density" and "maximum net density" provide two separate measures of the intensity of use of land. The allowable density for "maximum net density" is never less than the allowable density for "allocated density" because "maximum net density" is a safeguard to ensure that, after netting out from the parcel those areas reserved for open space, setbacks, and buffers, the intensity of use will not be excessive. Nothing whatsoever in the LDRs suggests that Marathon may issue a development order for a proposal that satisfies the "maximum net density," but not the "allocated density." These two densities limitations operate in tandem, not in the alternative. The calculation of the "allocated density" requires consideration of the second and third questions identified above. The issue of area seems straightforward. LDR Code Section 9.5-4(D-3) defines "density or allocated density" as "the number of dwelling units or rooms allocated per gross acre of land by the plan." LDR Code Section 9.5-4(D-4) defines "maximum net density" as "the maximum density permitted to be developed per unit of land on the net buildable area of a site, as measured in dwelling units or rooms per acre." LDR Code Section 9.5-4(G-4) defines "gross area" as "the total acreage of a site less submerged lands and any dedicated public rights-of-way." LDR Code Section 9.5-4(N-4) defines "net buildable area" as "that portion of a parcel of land which is developable and is not open space required by section 9.5-262 or 9.5-343 or required minimum bufferyard under article VII division 11 or required setbacks under section 9.5-281." The area of land involved in determining "allocated density" is greater than the area of land involved in determining "maximum net density." But the area of land involved in determining "allocated density" is itself a net amount. The LDRs expressly require reducing the gross areas by any submerged land and dedicated public rights-of-way. However, any reasonable application of the LDRs also requires reducing the gross areas used for the motel "allocated density" calculation by the minimum areas required to support other uses on the Subject Property. If the only use of the Subject Property were motel rooms, the "allocated density" limit of ten units per acre (10:1) would allow 73.9 rooms. But the Marathon Planning Commission Staff Report dated September 18, 2000, correctly netted from the Subject Property the land areas required to support the commercial aspects of the hotel and the commercial apartments. These reductions leave a total of 5.86 acres available to support the motel rooms. At a density of 10:1, the Subject Property could therefore support a total of 58 motel rooms. The Planning Commission incorrectly used the 15:1 ratio for "maximum net density" in concluding that the Subject Property could support a total of 67.65 motel rooms. Evidently, the Planning Commission used the "maximum net density" because it was not using "gross area" or "gross acres" (the terms are synonymous under the Code) in calculating the area. The netting reduction necessary to calculate whether BB's proposal satisfies the "maximum net density" limitation would require the calculation of the area of the Subject Property that must be devoted to open space, setbacks, and buffers. The Planning Commission probably undertook this step in calculating the "maximum net density" for the Subject Property, as its figures seem to include unstated deductions for the 20 percent open space plus another factor, probably for setbacks and buffers--all of which are discussed in its report. However, the Planning Commission erroneously neglected to apply the "allocated density" limitation to the "gross acres," exclusive of submerged land, public rights-of-way, and the minimum land required to support the other upland uses. As noted above, doing so would have yielded no more than 58 motel rooms. At present, the Subject Property contains 60 hotel or motel rooms. The Subject Property therefore cannot support the addition of another 12 hotel or motel rooms, given its "allocated density" of only 58 rooms. In general, BB justifies the addition of 12 rooms to the front motel by arguing that it is only transferring these units from the 12 existing wet slips. It is unnecessary to determine whether a transfer under these facts is lawful when, if these 12 slips count as units, the Subject Property is already 14 units over its "allocated density." The resolution of the third question--what constitutes a "room"--dispenses with this argument. Thirty of the existing 40-50 boat slips in the marina have water, electric, and cable hook-ups and are presently used for some form of habitation. Most vessels berth at the marina for two or three days, although the average stay is slightly over one month. The average stay at the 30 slips offering utilities, though, is two to three months. Typically, two persons use a vessel berthed at the marina for more than a couple of days. BB seals the discharge ports of all vessels mooring at the marina for any appreciable period of time. BB provides a sewage pumpout service for these and other vessels. The wastewater from the marina operations goes to a septic tank, in contrast to the wastewater from the motel operations, which goes to an onsite package plant. Persons mooring at the marina for at least two months normally obtain telephone service and may obtain cable television service, in addition to the potable water and electrical services provided by BB. The marina also provides rest rooms, laundry facilities, showers, a bar, limited food service, and a mail box. However, BB rules require that all persons berthing at the marina register a permanent address because the slips are "not considered permanent housing." At the request of the Florida Keys Aqueduct Authority and the Monroe County Planning Department, BB has limited rental agreements at the marina to a maximum of one month, although some persons enter into back-to-back rental agreements. Persons staying more than one week often have cars. Contrary to BB's contentions, none of these slips provides additional density for the Subject Property, and therefore the 12 slips are not available for transfer to the motel. For the same reason, as discussed below, the proposed transfer of the 12 units would also violate the Rate of Growth Ordinance (ROGO). In two respects, the record reveals that the conversion of marine-based residential uses to upland residential uses might facilitate the achievement of important land use planning objectives. First, the wastewater collected from the marina is directed to a septic tank, and the wastewater collected from the motel is directed to a package plant. Absent a significantly reduced flow from the marine-based residential use, the upland residential use would therefore impact the adjacent waters to a lesser extent. Second, marine-based residential users may be more reluctant to evacuate for an approaching hurricane than upland residential users. Absent a significantly greater number of visitors during hurricane season if the 12 units were taken from the marina slips and added to the motel, the upland residential use might therefore facilitate timely hurricane evacuation of the vulnerable Keys. However, the record was relatively undeveloped on these two points, and these possible advantages to the conversion of marine-based residential uses to upland-based residential uses do not override the LDRs. The LDRs may treat the more intense residential use associated with "live-aboards" differently than the less intense residential use associated with other moored vessels. Although the LDRs' treatment of "live-aboards" may not be entirely consistent, any inconsistency is irrelevant in this case because the moored vessels at the Banana Bay marina do not qualify as "live-aboards." As stipulated for the purpose of this case, LDR Code Section 9.5-4(T-4) defines a "transient residential unit" as "a dwelling unit used for transient housing such as a hotel or motel room, or space for parking a recreational vehicle or travel trailer." LDR Code Section 9.5-4(D-31) defines a "dwelling unit" as "one (1) or more rooms physically arranged to create a housekeeping establishment for occupancy by one (1) family with separate toilet facilities." LDR Code Sections 9.5-4(D-23) through 9.5-4(D-30) identify the various types of dwellings that may contain "dwelling units.” These dwellings are, respectively, detached zero-lot-line dwellings, multifamily apartment dwellings, attached dwellings, detached individual dwellings, duplex dwellings, commercial apartment dwellings, rooftop dwellings, and townhouse dwellings. The frequent references to "open yards" in these definitions precludes the application of these definitions to moored vessels, even "live- aboards." The exclusion of all moored vessels, including "live-aboards," from density calculations is also suggested by two other portions of the LDRs. As is typical, LDR Code Section 9.5-120.1 provides that the mechanism for enforcing density limitations is in the issuance of building permits, but this enforcement mechanism is of doubtful use in regulating vessel moorings, which do not typically involve the issuance of a building permit. Also, the density definitions discussed above both refer to the development of various types of residential uses on "land." Moreover, none of the zoning districts established in Marathon's LDRs measures the intensity of marina uses, including vessels moored for extended periods as live-aboards, by imposing some sort of marine density limitation, either by including the moored dwelling units or the submerged acreage. Because the LDRs did not intend to include such marine-based uses in density calculations, LDR Code Section 9.5-267, which is a table setting forth "allocated densities" and "maximum net densities," covers only upland-based uses, including recreational vehicle or campground spaces per acre, and does not extent to marine-based uses, such as live-aboard marina slips. However, two provisions in the LDRs require density calculations to include "live-aboards." LDR Code Section 9.5-308, which seems to be an older provision in the LDRs, provides that "each live-aboard shall count as a dwelling unit for the purpose of calculating density limitations in the district in which it is permitted." Better incorporated into the present regulatory scheme of the LDRs, LDR Code Section 9.5-120.1 defines a "residential dwelling unit" as a "dwelling unit," including a "transient rental unit," as defined in LDR Code Section 9.5-4(T-3), and "live-aboard vessels," as defined in LDR Code Section 9.5-4(L-6). However, LDR Code Section 9.5-4((L-6) states that a "live-aboard vessel" is "any vessel used solely as a residence or any vessel represented as a place of business, a professional or other commercial enterprise, or a legal residence." The record does not suggest that any of the moored vessels were used "solely" as a residence, as distinguished, for instance, from a vessel used for residential and recreational purposes, or that any of the mixed-use vessels served as the occupants' legal residence. Absent a finding that the moored vessels constitute "transient residential units," ROGO does not support this proposed transfer of residential uses from marine-based to upland-based. LDR Code Section 9.5-123(f)(3) authorizes the transfer of an existing "residential dwelling unit" from one site to another within the same subarea. However, LDR Code Section 9.5-122 defines a "residential dwelling unit" to extend only to "live-aboards." For the reasons already discussed, the less intense residential uses associated with the vessels moored at Banana Bay's marina preclude their treatment as "residential dwelling units" eligible for transfer to the motel. Petitioner has proved that the development order is materially inconsistent with the LDRs. LDR provisions governing the density and intensity of residential development go to the heart of effective land use planning, especially in an area as sensitive as the Keys. For these reason, it is unnecessary to consider the consistency of the development order with the more general provisions of Marathon's comprehensive plan, on which Marathon's LDRs are based.
Recommendation It is RECOMMENDED that the Florida Land and Water Adjudicatory Commission enter a final order denying the request of Banana Bay of Marathon, Inc., to approve the transfer of 12 slips to 12 rooms in a motel on the Subject Property. DONE AND ENTERED this 7th day of December, 2001, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 7th day of December, 2001. COPIES FURNISHED: Barbara L. Leighty, Clerk Growth Management and Strategic Planning The Capitol, Suite 2105 Tallahassee, Florida 32399 Charles Canaday, General Counsel Office of the Governor Department of Legal Affairs The Capitol, Suite 209 Tallahassee, Florida 32399-1001 Cari L. Roth, General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Mitchell A. Bierman Weiss Serota 2665 South Bayshore Drive Suite 420 Miami, Florida 33133 James S. Mattson James S. Mattson, P.A. Post Office Box 586 Key Largo, Florida 33037
The Issue Whether recording a claim of lien by a registered real estate broker for the purpose of collecting a commission pursuant to an exclusive listing contract violated the provision of Section 475.42(1)(j)?
Findings Of Fact Robert F. Tully is a registered real estate broker holding Certificate #0090289 issued by the Florida Real Estate Commission. Robert F. Tully, on April 24, 1975, entered into a 30 day exclusive listing contract with James and Joyce Deede to find a purchaser for their residence located at 4150 Rector Road, Cocoa Beach, Florida. This contract was to continue in effect after the end of the 30 day period but could then be terminated on 10 day written notice. The Deedes were unable to produce any evidence of having given 10 day written notice and the Respondent and his agents denied having received written notice of cancellation of the contract. On August 21, 1975, Mr. DeVaughn Bird, a registered real estate broker, personally contacted the Deedes to inquire about selling their house for them. At that time the property had a Tully "FOR SALE" located on it, but Bird did not contact Tully or his associate sales personnel. The Deedes advised Bird that the exclusive sales contract with Tully was no longer valid and gave Bird an open listing. On August 23 and 24, 1975, Bird showed the subject property to Richard and Diane McClure at which time the Tully sign was still located on the property. A contract for sale and purchase was negotiated by Bird between the Deedes and McClures, and a closing date set. Because of difficulties, the closing was delayed and a new contract executed on October 15, 1975 for a November 7, 1975 closing. Following the execution of the initial contract, Bird put his own "SOLD" on the property. Tully became aware of the sale by Bird, and contacted Bird advising him of the existence of his exclusive listing contract, and his expectation to participate in the commission. Bird informed Tully that he would not share a commission and that Tully would have to look to the Deedes for any commission due him. The Deedes refused to acknowledge Tully's claim for any commission or share thereof. At this point, Tully sought the advice of his attorney. Tully's attorney advised him that Tully's contract was in full force and on the basis of the attorney's opinion law applicable to the situation, Tully was entitled to file an equitable lien against the property. Tully, based on his attorney's advice, authorized his attorney to negotiate a settlement if possible; and, if that failed, to file an equitable lien on the property. Negotiations were unsuccessful and on October 30, 1975, just prior to closing, Tully's attorney filed a claim of lien for real estate commission in the amount of $3,314.50 with the Clerk of the Circuit Court of Brevard County, Florida, and this was recorded in OR Book 1570 at Page 349 of the official records of that county. Copies of, the claim of lien were also served on the closing agent for the sale of the property. The Deedes, as a result of the claim of lien, directed the closing agent to pay Tully one half the amount claimed, or $1,175.00, when Bird agreed to drop his commission from 7 percent to 5 percent of the selling price of $47,000. Having received payment of $1,175.00, Tully had the claim of lien immediately satisfied, which satisfaction may be found in OR Book 1572 at Page 115 of the Public Records of Brevard County.
Recommendation Based on the foregoing findings of fact and conclusions of law, the Hearing Officer would recommend that the Florida Real Estate Commission direct Robert F. Tully to repay the $1,175.00 to the Deedes within 30 days, said period to be extended if the Deedes cannot be located, or face immediate suspension for 30 days; further, said repayment shall not act as a bar to any action by Robert F. Tully against the Deedes based on his contract with them. DONE and ORDERED this 10th day of March, 1977, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Edward L. Stahley, Esquire Goshorn, Stahley & Miller Post Office Box 1446 Cocoa, Florida 32922 Manuel E. Oliver, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789
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 Whether the decision to reject all bids for Lease No. 800:0187 is illegal, arbitrary, dishonest, or fraudulent under the provisions of Section 120.57(3), Florida Statutes, or violates the terms of the Request for Proposal.
Findings Of Fact Prior to May 17, 1999, the Department issued a RFP for office space seeking to lease approximately 14,420 contiguous square feet of space located in Broward County, Florida. This lease, designated 800:0187 in this record, was to run for a basic term of seven years with three two-year renewal options. The RFP specified the lessor was to provide full services and 60 parking spaces. In response to the RFP, the Petitioner, Sunrise, and Intervenor timely submitted proposals. The space proposed by Petitioner complied with the requirements of the RFP. Additionally, the Petitioner's submittal was well within the Department's acceptable rate range. On May 17, 1999, the Department issued an intended award to Sunrise for lease 800:0187. Sunrise was deemed the lowest responsive bidder. All objections to the award to Sunrise were resolved or withdrawn. For reasons not clearly documented in this record, the Department withdrew its decision to award the lease to Sunrise. The agency action, posted on June 12, 2000, some 13 months after the initial posting, stated Sunrise had not performed and recommended Lauderdale as the second-ranked entity that had responded to the RFP. Both Sunrise and the Intervenor timely filed protests to the proposed award to Lauderdale. The Petitioner filed motions with the Department to dismiss and intervene in those protests. As of the date of the final hearing in the instant case, the Department had not resolved or referred those protests to the Division of Administrative Hearings. Instead, on July 24, 2000, the Department issued a notice stating it would reject all bids for lease 800:0187 and rescind the award to Lauderdale. In reaching this decision, the Department stated it "cannot determine its space needs until after the pending Department reorganization is complete." If the Department was being "reorganized" such reorganization would have been known to the Department on June 12, 2000. No legislative or administrative action was taken to require reorganization between June 12, 2000 and July 24, 2000. The Department determined that its decision of July 24, 2000, rendered the June 12 award to Lauderdale moot. The Petitioner, Sunrise, and Intervenor challenged the agency's decision to reject all bids. Section M of the RFP provides, in pertinent part: The Department reserves the right to reject any and all proposals when such rejection is in the best interest of the State of Florida. Such rejection shall not be arbitrary, but be based on strong justification. (Emphasis in original omitted.) Subsequent to the protests of the rejection of all proposals, Perry Anderson, a regional administrator for the Department whose region encompasses Broward County, drafted a memorandum dated September 22, 2000, to address the number of leases and unit requirements for service areas of Broward County. The proposals set forth in the memorandum have not been resolved. As of the date of the hearing, the Department did not present any definitive statement as to its leasing needs for Broward County or how and why the submittals for lease 800:0187 could not address the agency's need. The Department has not presented documentation for any agency plan or statutory mandate to reorganize or decentralize the office space encompassed by lease 800:0187. If decentralization is required, the Department has presented no studies to determine the location, service areas, or numbers of clients for such offices. Studies for demographics, travel times, accessibility to public transportation, client case loads, or how reorganization would better address such issues have not been presented. Moreover, the Department has not demonstrated how decentralization would be inconsistent with the award of lease space as designated by lease 800:0187. The only justification for the rejection of all proposals for lease 800:0187 was the alleged reorganization of the Department. The Department presented no factual information as to how the "reorganization" related to an emerging philosophy supporting decentralization or improved services to the client population.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Juvenile Justice enter a final order rescinding its decision to reject all proposals for lease 800:0187. DONE AND ENTERED this 27th day of July, 2001, in Tallahassee, Leon County, Florida. ___________________________________ J. D. Parrish 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 27th day of July, 2001. COPIES FURNISHED: Brian D. Berkowitz, Esquire Scott Wright, Esquire Office of General Counsel Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 Robert A. Sweetapple, Esquire Sweetapple, Broeker & Varkas 165 East Boca Raton Road Boca Raton, Florida 33432 Daniel H. Thompson, Esquire Berger, Davis & Singerman 215 South Monroe Street Suite 705 Tallahassee, Florida 32301 A. Margaret Hesford, Esquire 5648 West Atlantic Boulevard Margate, Florida 33063 William G. Bankhead, Secretary Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100 Robert N. Sechen, General Counsel Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100
Findings Of Fact Talbott and Drake, Inc. is and was at all times alleged herein a registered real estate broker corporation. William F. Talbott is now and was at all times alleged herein a registered real estate broker and active firm member of Talbott and Drake, Inc. Paul P. Drake is now and was at all times alleged herein a registered real estate broker and active firm member of Talbott and Drake, Inc. Helen C. Drake is now and was at all times alleged herein a registered real estate broker and active firm member of Talbott and Drake, Inc. On or about January 18, 1977, William F. Talbott, on behalf of Talbott and Drake, Inc., negotiated a contract for sale and purchase between the High Ridge Water Company -- John H. McGeary, Jr., sellers, and William Montaltos and Genevieve L. Montaltos, his wife, buyers, for the purchase of lot in a new housing area known as River Forest in the Boca Raton area, Palm Beach County. A copy of said contract, Petitioner's Exhibit 1, is received into the record pursuant to the Stipulation of the parties. Said contract, Petitioner's Exhibit 1, was subject to the declarations of restrictions filed by High Ridge Water Company as seller on June 28, 1976, wherein, in Paragraph 7, the developer retained the right to approve or disapprove the plans and specifications for the construction of any structure, building, fence, wall or sign in the River Forest area. A copy of said declarations of restrictions is received into the record as Petitioner's Exhibit 2, pursuant to the Stipulation of the parties. As a part of the restrictions and provisions of the contract, the purchasers, Mr. and Mrs. Montaltos, were required to use a builder selected from a list of designated builders, approved and designated by Talbott and Drake, Inc. and the High Ridge Water Company. Mr. and Mrs. Montaltos decided to build on the subject property and contacted numerous builders designated by Talbott and Drake, Inc. to submit the bids for the construction of a home on the property. On or about June 9, 1976, the McGeary partnership, as developer of the River Forest area, entered into a joint venture agreement with Group Six Developers Collaborative, Inc., whereby Group Six Developers Collaborative, Inc. purchased lots in the River Forest area and agreed to pay Talbott and Drake, Inc. a five-percent commission on all homes constructed on said lots by Group Six Developers Collaborative, Inc. in the River Forest area. A copy of said joint venture agreement is received into the record as Petitioner's Exhibit 3 pursuant to the Stipulation of the parties. Petitioner's Exhibit 3 recites on the first page of said agreement as follows: WITNESSETH: WHEREAS, by that certain Purchase Agreement intended to be executed this date, BUILDER (Group Six Collaborative, Inc.) is agreeing to purchase certain real property as set forth herein, a copy of which Purchase Agreement is attached hereto as Exhibit 1; . . . (emphasis added) WHEREAS, the parties hereto are desirous of forming a joint venture for the purpose of finan- cing, constructing and selling single family residences upon the property described in Exhibit 1; NOW THEREFORE, in consideration of the pro- mises and of the mutual covenants of the parties hereto, and for other good and valuable considera- tion, the parties agree as follows: 9. BROKER. The parties agree that TALBOTT AND DRAKE, INC., a Florida real estate brokerage corporation, shall have an exclusive listing agree- ment with BUILDER, as owner and joint venturer, for the sale of residences to be constructed pursuant to this Agreement, a copy of which Agreement is attached hereto as Exhibit 2. As a commission for their services, which shall include but not be limited to, advertising, manning model houses, showing receiving of deposits, qualifying prospects, assisting in obtaining financing for purchasers, they shall receive five percent (5 percent) of the pur- chase price, according to the provisions contained in Exhibit 2. The joint venture agreement, Petitioner's Exhibit 3, is clearly limited to houses to be constructed on the lots purchased from the McGeary partnership. The agreement does not constitute an agreement to pay Talbott and Drake, Inc. a fee of five percent of the construction cost of any custom home built by one of the designated builders on a lot purchased by an individual. When Mr. and Mrs. Montaltos received the bid statement from Group Six Developers Collaborative, Inc. there was noted thereon: "Add Real Estate Commission as per Talbott and Drake contract." A copy of said bid statement is received into the record as Petitioner's Exhibit 4 pursuant to the Stipulation of the parties. Although Mr. and Mrs. Montaltos were informed that Talbott and Drake, Inc. was to be paid a ten-percent commission by the seller on the sale of the property to Mr. and Mrs. Montaltos, they were at no time informed directly by the Respondents that the builders on the "approved list" were required to pay a five-percent commission to Talbott and Drake, Inc., nor that the said five- percent commission would be passed on to Mr. and Mrs. Montaltos when they contracted with an "approved" builder to construct a home on the subject property. On or about February 4, 1977, William F. Talbott, on behalf of Talbott and Drake, Inc., negotiated the contract for sale and purchase between High Ridge Water Company, as seller, and Donald James Kostuch and Mary Louise Kostuch, his wife, buyers, for purchase of a lot in the River Forest area of Palm Beach County. A copy of said contract is received into the record as Petitioner's Exhibit 5 pursuant to the Stipulation of the parties. Mr. and Mrs. Kostuch were required by the contract to select a builder from an approved list of designated builders approved and supplied by Talbott and Drake, Inc. and seller, High Ridge Water Company. Mr. and Mrs. Kostuch selected Snow Realty and Construction, Inc. from the list supplied by Talbott and Drake, Inc. Snow Realty and Construction, Inc. had an agreement with the McGeary partnership and Talbott and Drake, Inc. similar to that outlined in the joint venture agreement between the McGeary partnership in Group Six Developers Collaborative, Inc., Petitioner's Exhibit 3, whereby Snow Realty and Construction, Inc. agreed to pay Talbott and Drake, Inc. a five-percent commission on any residence that Snow Realty and Construction, Inc. built in the River Forest area. The bid supplied by Snow Realty and Construction, Inc. on March 7, 1977, to Talbott and Drake, Inc. contained a listing of real estate commission to Talbott and Drake, Inc. in the amount of $3,652. A copy of said bid statement is received into the record as Petitioner's Exhibit 6 pursuant to the Stipulation of the parties. The Kostuchs were advised of a five-percent fee to be paid by the builder by a salesman working for another broker who first introduced the Kostuchs to the real property in River Forest. The salesman advised the Kostuchs prior to their entry into the contract for the purchase of the lot in River Forest in which they agreed to limit their choice of builder to one approved by the McGeary partnership and Talbott and Drake, Inc. This disclosure would be sufficient to comply with the provisions of Rule 21V-10.13, Florida Administrative Code, because the fee was revealed by a salesperson involved in the transaction prior to the execution of the contract under which the favor, if any, was granted. Talbott and Drake, Inc., in addition to performing services as listing agent for the sale of homes in River Forest, also functioned as the prime developer in this project pursuant to an agreement with High Ridge Water Company and the McGeary partnership. Regarding the Montaltos' transaction, the limitation of the owners to the use of one of the approved builders constitutes the granting or placement of favor, because it narrows the competition to one of five builders out of all the builders available in the Fort Lauderdale area. The affidavits introduced indicate that, notwithstanding the absence of a written agreement, the designated builders had agreed to pay to Talbott and Drake, Inc. a fee of five percent of the cost of construction of any custom home as compensation for the efforts of Talbott and Drake, Inc. in developing the property. While compensation for these services is reasonable, it still constitutes a fee to be paid Talbott and Drake, Inc. from one of the five designated builders who would benefit from the contract. The potential adverse effect of this arrangement was to transfer a cost generally allocated to the cost of the lot to the cost of the house. Therefore, people shopping for a lot could be misled in the comparison of similar lots in different subdivisions in the absence of being advised of the fee to be paid by the builders to Talbott and Drake, Inc. However, the evidence shows no attempt to keep this fee a secret and thereby mislead buyers. The existence of such a fee is referred to in sales literature prepared by Talbott and Drake, Inc. The Kostuchs were advised of the fee by a participating salesman for another real estate company. The builders set out the fee as a separate cost item as opposed to absorbing it in general costs within their bids. While the Respondents could not produce evidence that the Montaltos' had been advised of the existence of the fee, and the Montaltos' testified that they had not been advised, this appears to be an isolated incident as opposed to a course of conduct. Notwithstanding proof of the above, no evidence is presented that the Montaltos' contracted with a designated builder to build their house, and that a designated builder paid a fee to Talbott and Drake, Inc. To the contrary, the testimony of William Talbott was that the Montaltos' had breached the terms of their contract regarding the use of a designated builder.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that the Florida Real Estate Commission issue a letter of reprimand to Talbott and Drake, Inc. which, in fairness to the Respondents, should set out the specifics of the violation and to further apprise other registrants of the potential dangers of such fee arrangement. DONE and ORDERED this 4th day of June, 1979, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Frederick H. Wilsen, Esquire Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Charles M. Holcomb, Esquire 653 Brevard Avenue Post Office Box 1657 Cocoa, Florida 32922
The Issue The issue in this case is whether the amendment to the Lee County Comprehensive Plan adopted by Ordinance No. 05-20 is "in compliance," as that term is defined in Section 163.3184(1)(b), Florida Statutes (2005),1 for the reasons set forth in the Petition for Formal Administrative Hearing and Statement of Intent filed by the Department of Community Affairs ("the Department").
Findings Of Fact The Parties The Department is the state land planning agency and is statutorily charged with the duty of reviewing comprehensive plans and their amendments, and determining whether a plan or amendment is “in compliance,” as that term is defined in Section 163.3184(1)(b), Florida Statutes. Lee County is a political subdivision of the State of Florida and has adopted a comprehensive plan that it amends from time to time pursuant to Section 163.3167(1)(b), Florida Statutes. Leeward is a Florida limited liability company that owns a portion of the real property that is the subject of the amendment at issue. The Amendment The amendment would change the future land use designation for 41.28 acres in the northeast quadrant of the Interstate 75 (I-75)/State Road 80 (SR 80) interchange from General Commercial Interchange to Urban Community, as shown on the FLUM. The General Commercial Interchange land use is described in the County Plan as “intended primarily for general community commercial land uses: retail, planned commercial districts, shopping, office, financial, and business.” It does not allow residential development. The Urban Community land use provides for a mix of residential, commercial, public, quasi-public, and limited light industrial uses. The standard density range for residential uses in the Urban Community category is one to six dwelling units per acre (du/a). The 41.28 acres affected by the amendment ("the amendment site") consist of 19.28 acres of lands along the Orange River owned by Leeward, a platted subdivision known as Dos Rios of approximately 11 acres, and the remaining acreage consists of right-of-way for SR 80 and I-75. Currently operating on Leeward's property is a vessel repair facility, a marina with wet and dry slips, and an ecotourism company. Leeward also has its office on the site. The Dos Rios subdivision includes 26 single-family lots. Apparently, only a few of the lots (the number was not established in the record) have been developed. Because residential land uses are not allowed in the General Commercial Interchange category, the Dos Rios lots were non-conforming uses. Maximum Allowed Density The County Plan provides residential density bonuses to promote various County objectives, such as the provision of affordable housing. With density bonuses, lands designated Urban Community can boost their density to a maximum of ten du/a. There was testimony presented by Leeward that the County has not often approved applications for density bonuses. Even if the practice of the County in approving density bonuses were relevant, the practice can change. It is reasonable for the Department to consider the maximum intensity or density associated with a future land use designation when determining whether a FLUM amendment is in compliance. Therefore, in this case, it is reasonable to consider the Urban Community land use designation as allowing up to ten du/a. The Department asserts that the amendment would allow the 41.2 acres affected by the amendment to have a total of 412 dwelling units (41.2 acres x 10 du/a). Leeward disputed that figure because the 41.2 acres includes road right-of-way and the Dos Rios subdivision. A hearing officer appointed to review a Lee County development order recently determined that right-of-way external to a development should not be included in calculating allowable units, and the County accepted the hearing officer's recommendation based on that determination. The definition of "density" in the County Plan supports the determination.2 Therefore, for the purposes of this case, the right-of-way in the northeast quadrant should not be included in calculating the maximum residential density that would result from the amendment. On the other hand, Leeward's argument that the Dos Rios subdivision acreage should not be included in the ten du/a calculation is rejected. For the purposes of an "in compliance" determination, it is reasonable for the Department to apply the maximum potential densities to all developable and re- developable acreage. Using 29 acres as the approximate acreage affected by the amendment when road right-of-way is subtracted, the amendment would create the potential for 290 residences in the northeast quadrant of the interchange. Adoption of the Amendment The amendment was initiated as part of the County's reexamination of the existing land use designations in the four quadrants of the I-75/SR 80 interchange. Following the County planning staff's completion of a study of the entire interchange, it recommended several changes to the County Plan, but no change was recommended for the northeast quadrant. Apparently, the amendment at issue was urged by Leeward, and, at a public hearing held on June 1, 2005, the Board of County Commissioners voted to adopt the amendment. Pursuant to Section 163.3184(6), Florida Statutes, the proposed amendment was forwarded to the Department for an "in compliance" review. Following its review, the Department issued its ORC Report on August 19, 2005. In the ORC Report, the Department objected to the proposed amendment based upon what it considered to be inappropriate residential densities in the coastal high hazard area (CHHA) and floodplain. The Department recommended that the County not adopt the proposed amendment. On October 12, 2005, another public hearing was held before the Board of County Commissioners to consider adoption of the amendment. At the public hearing, the County planning staff recommended that the land use designation in the northeast quadrant not be changed to Urban Community "due to the potential increase in density in the Coastal High Hazard Area." Nevertheless, the Board of County Commissioners approved the amendment. Representatives of Leeward appeared and submitted comments in support of the amendment at the public hearings before the Board of County Commissioners. On December 16, 2005, the Department issued its Statement of Intent to Find Comprehensive Plan Amendment Not in Compliance, identifying three reasons for its determination: (1) inconsistency with state law regarding development in the CHHA and flood prone areas, (2) internal inconsistency with provisions of the County Plan requiring the consideration of residential density reductions in undeveloped areas within the CHHA, and (3) inconsistency with the State Comprehensive Plan regarding subsidizing development in the CHHA and regulating areas subject to seasonal or periodic flooding. On January 5, 2006, the Department filed its petition for formal hearing with DOAH. Coastal High Hazard Area The Florida Legislature recognized the particular vulnerability of coastal resources and development to natural disasters and required coastal counties to address the subject in their comprehensive plans. [I]t is the intent of the Legislature that local government comprehensive plans restrict development activities where such activities would damage or destroy coastal resources, and that such plans protect human life and limit public expenditures in areas that are subject to destruction by natural disaster. § 163.3178(1), Fla. Stat. The statute also requires evacuation planning. Until 2006, the CHHA was defined as the "category 1 evacuation zone." § 163.3178(2)(h), Fla. Stat. In 2006, the CHHA was redefined as "the area below the elevation of the category 1 storm surge line as established by the Sea, Lake, and Overland Surges from Hurricanes (SLOSH) computerized storm surge model."3 Ch. 2006-68, § 2, Laws of Fla. The County Plan defines the CHHA as "the category 1 evacuation zone as delineated by the Southwest Florida Regional Planning Council." Map 5 of the County Plan, entitled "Lee County Coastal High Hazard Area (CHHA)," shows the entire amendment site as being within the CHHA. Nothing on Map 5, however, indicates it was produced by the Regional Planning Council. Daniel Trescott, who is employed by the Southwest Florida Regional Planning Council and is responsible for, among other things, storm surge mapping, stated that the Category 1 evacuation zone is the storm surge level for the worst case scenario landfall for a Category 1 storm. He stated that the Category 1 storm surge for Lee County was determined by the SLOSH model to be 5.3 feet. Mr. Trescott stated that the 5.3 foot contour (shown on Plate 7 of the Regional Planning Council's "Hurricane Storm Tide Atlas - Lee County") more accurately delineates the CHHA than Map 5 of the County Plan. Although Mr. Trescott's testimony suggests a conflict between the County Plan's definition of the CHHA and Map 5's depiction of the CHHA, the two can be reconciled by a finding that Map 5 is a gross depiction of the CHHA for general public information purposes, but the precise location of the CHHA boundary is the one delineated by the Regional Planning Council, and the latter is controlling. Using the 5.3 contour on the amendment site, Leeward's witness, Michael Raider, estimated that there are approximately 16 acres of the amendment site within the CHHA. Applying the maximum allowable residential density under the Urban Community land use designation (with bonuses) of ten du/a means the amendment would result in a potential for 160 dwellings in the CHHA. Florida Administrative Code Rule 9J-5.012(3)(b)6. and Rule 9J-5.012(3)(c)7., respectively, require each local government’s coastal management element to contain one or more specific objectives that "[d]irect population concentrations away from known or predicted coastal high-hazard areas” and limit development in these areas. The parties' evidence and argument regarding whether the amendment was "in compliance" focused on these rules and the following goal, objective, and policy of the County Plan related to the CHHA: GOAL 105: PROTECTION OF LIFE AND PROPERTY IN COASTAL HIGH HAZARD AREAS. To protect human life and developed property from natural disasters. OBJECTIVE 105.1: DEVELOPMENT IN COASTAL HIGH HAZARD AREAS. Development seaward of the 1991 Coastal Construction Control Line will require applicable State of Florida approval; new development on barrier islands will be limited to densities that meet required evacuation standards; new development requiring seawalls for protection from coastal erosion will not be permitted; and allowable densities for undeveloped areas within coastal high hazard areas will be considered for reduction. POLICY 105.1.4: Through the Lee Plan amendment process, land use designations of undeveloped areas within coastal high hazard areas will be considered for reduced density categories (or assignment of minimum allowable densities where ranges are permitted) in order to limit the future population exposed to coastal flooding. In the opinion of Bernard Piawah, a planner employed by the Department, the amendment is inconsistent with the goal, objective and policy set forth above because these provisions only contemplate possible reductions of residential densities in the CHHA and there is no provision of the County Plan that addresses or establishes criteria for increasing residential densities in the CHHA. Population Concentrations As stated above, Florida Administrative Code Rule 9J-5.012(3)(b)6. directs local governments to include provisions in their comprehensive plans to direct population concentrations away from the CHHA. The term "population concentrations" is not defined in any statute or rule. The term apparently has no generally accepted meaning in the planning profession. The word "population" has the ordinary meaning of "all of the people inhabiting a specific area." The American Heritage Dictionary of the English Language (1981). The word "concentration" has the ordinary meaning of "the act or process of concentrating." Id. The word "concentrate" means "to direct or draw toward a common center." Id. In the context of Florida Administrative Code Rule 9J-5.012, the term "population concentrations" suggests a meaning of population densities (dwelling units per acre) of a certain level, but the level is not stated. Leeward argues that, because there is no state guidance on the meaning of the term "population concentrations," surrounding land uses should be examined to determine whether a proposed density would be "proportionate to its surroundings." According to Leeward, in order to be a population concentration, the density under review would have to be greater than the surrounding density. This comparative approach is rejected because the overarching Legislative objective is protection of life, which plainly calls for a straightforward consideration of the number of lives placed in harm's way. The Department, in its Proposed Recommended Order, states: By assigning either zero residential density to land by virtue of an Open Space land use designation, or a maximum density of one unit per acre by assigning a low density land use designation, the County Plan fulfills the mandates of State law that development be limited in and residential concentrations be directed away from the CHHA. Thus, not surprisingly, the Department does not consider one du/a to be a population concentration. A density of ten du/a is an urban density, as indicated by the fact that it is the maximum density allowed in the Urban Community land use designation and the highest density within the "standard density range" for the County's Central Urban land use designation. It is a generally known fact, of which the undersigned takes notice, that urban areas are areas where populations are concentrated. It is a another generally known fact, of which the undersigned takes notice, that ten dwelling units on one acre of land amounts to a lot of people living in a small space. Leeward, itself, described the residential density allowed under the Urban Community designation as "relatively intense." Leeward's Proposed Recommended Order, at 7. Whether measured by density alone (ten du/a) or by Leeward's estimate of 160 residences on 16 acres, the amendment places a population concentration in the CHHA. Offsets in the CHHA Leeward presented evidence that the County has been reducing residential densities, sometimes referred to as "down- planning," in other areas of the CHHA in Lee County. The reduction in dwelling units in the CHHA over the past several years may be as high as 10,000 units. The Department did not present evidence to dispute that there has been an overall reduction in dwelling units in the CHHAs of Lee County. Leeward argues that these reductions "offset" the increase in dwelling units in the CHHA that would result from the amendment and this "overall" reduction in densities in the CHHA must be considered in determining whether the amendment is "in compliance" with state law and with provisions of the County Plan related to directing population concentrations away from the CHHA. At the hearing and in its Proposed Recommended Order, the Department argued that the consideration of offsets in the CHHA was improper and unworkable, but that argument conflicts with the Department's actual practice and official position as described in the January 2006 "Department of Community Affairs Report for the Governor's Coastal High Hazard Study Committee." In that report, the Department acknowledged there is no statutory or rule guidance regarding what the maximum density should be in the CHHA. The Report notes that some local governments have established maximum densities for the CHHA (e.g., Pinellas County, 5 du/a; Franklin County 1 du/a). The Department states in the report that it reviews amendments to increase density in the CHHA on a "case by case" basis, and explains further: When a Comprehensive Plan Amendment in the CHHA proposes a density increase, DCA's review considers the amount of the density increase, the impact on evacuation times and shelter space, and whether there will be a corresponding offset in density through "down planning" (generally accomplished through public acquisition). One of the visual aides used in conjunction with the 2006 report to Governor's Coastal High Hazard Study Committee, entitled "Policy Issue #2 - Densities in High Hazard Areas," also describes the Department's practice: Without locally adopted density limits, DCA conducts a case by case review of amendments without any defined numeric limit. DCA considers amount of density increase, impact on evacuation times and shelter space, and whether there will be a corresponding offset in density through "down planning" in other areas of the CHHA. These statements use the phrase "there will be a corresponding offset," which suggests that for an offset to be considered, it would have to be proposed concurrently with an increase in residential density on other lands within the CHHA. However, according to the director of the Department's Division of Community Planning, Valerie Hubbard, offsets in the CHHA do not have to be concurrent; they can include previous reductions. Furthermore, although the Department pointed to the absence of any criteria in the County Plan to guide an offset analysis, Ms. Hubbard said it was unnecessary for a comprehensive plan to include express provisions for the use of offsets. To the extent that this evidence of the Department's interpretation of relevant law and general practice conflicts with other testimony presented by the Department in this case, the statements contained in the report to the Governor's Coastal High Hazard Study Committee and the testimony of Ms. Hubbard are more persuasive evidence of the Department's policy and practice in determining compliance with the requirement that comprehensive plans direct population densities away from the CHHA and limit development in the CHHA. As long as the Department's practice when conducting an "in compliance" review of amendments that increase residential density in the CHHA is to take into account offsets, the Department has the duty to be consistent and to take into account the County's offsets in the review of this amendment. The County planning director testified that he believed the applicable goal, objective, and policy of the County Plan are met as long as there has been a reduction in residential densities in the CHHAs of the County as a whole. The Department points out that the planning director's opinion was not included in the County planning staff's reports prepared in conjunction with the amendment. However, it necessarily follows from the Board of County Commissioners' adoption of the amendment that it does not interpret Objective 105.1 and Policy 105-1.4 as prohibiting an increase in residential density in the CHHA. Although these provisions make no mention of offsets, the Department has not required offset provisions in a comprehensive plan before the Department will consider offsets in its determination whether a plan amendment that increases density in the CHHA is in compliance. The wording used in Objective 105.1 and Policy 105-1.4 requiring "consideration" of density reductions in the CHHA can be harmonized with the County planning director's testimony and with the County's adoption of the amendment by construing these plan provisions consistently with the Department's own practice of allowing increases in the CHHA when the increases are offset by overall reductions in dwelling units in the CHHA. Seeking to harmonize the amendment with the provisions of the County Plan is the proper approach because, as discussed later in the Conclusions of Law, whether an amendment is consistent with other provisions of the plan is subject to the "fairly debatable" standard which is a highly deferential standard that looks for "any reason it is open to dispute or controversy on grounds that make sense or point to a logical deduction." Martin County v. Yusem, 690 So. 2d 1288, 1295 (Fla. 1997). Shelter Space and Clearance Time Prior to the hearing in this case, Leeward moved to strike certain statute and rule citations in the Department's petition related to shelter space and clearance time4 because they were not included in the Department's ORC Report. The motion was denied because, although Section 163.3184(8)(b), Florida Statutes, limits the Department's petition to issues raised in the "written comments" in the ORC Report, the statute does not indicate that the Department is barred from citing in its petition, for the first time, a rule or statute that is directly related to the written comments. The CHHA is defined in the County Plan as the category one "evacuation zone." It is the area most in need of evacuation in the event of a severe coastal storm. Shelter space and clearance time are integral to evacuation planning and directly related to the Department's comment in the ORC Report that the amendment would, "expose a substantial population to the dangers of a hurricane." Therefore, the Department was not barred from presenting evidence on shelter space and clearance time in support of this comment. The Department's practice when reviewing an amendment that increases residential density in the CHHA, described in its 2006 report to the Governor's Coastal High Hazard Area Study Committee, is to consider not only dwelling unit offsets in the CHHA, but also the effect on shelter space and clearance time. That report did not elaborate on how shelter space and clearance time are considered by the Department, but evidence that a comprehensive plan amendment would have a significant adverse effect on shelter space or clearance time could presumably negate what would otherwise appear to the Department to be an acceptable offset of residential density in the CHHA. On this record, however, the Department did not show that a significant adverse impact on shelter space or clearance time would be caused by this particular amendment.5 Special Planning Areas Leeward argues that, even if the amendment were determined to be inconsistent with Objective 105.1 and Policy 105-1.4, that inconsistency should be balanced against other provisions in the County Plan that are furthered by the amendment, principally the provisions related to the Caloosahatchee Shores Community Planning Area and the Water- Dependent Use Overlay Zone. There is no authority for such a balancing approach that can overcome an inconsistency with an objective or policy of the comprehensive plan. Therefore, whether the amendment furthers the provisions of the County Plan related to the Caloosahatchee Shores Community Planning Area, Water-Dependent Use Overlay Zone, or other subjects is irrelevant to whether the amendment is consistent with Objective 105.1 and Policy 105-1.4. On the other hand, the Department's contention that the amendment is inconsistent with the provisions of the County Plan related to the Caloosahatchee Shores Community Planning Area is contrary to the more credible evidence. 100-Year Floodplain The amendment site is entirely within the 100-year floodplain. In its Statement of Intent, the Department determined that the amendment was not in compliance, in part, because the amendment site's location in the 100-year floodplain made it unsuitable for residential development. In addition, the Department determined that the amendment caused an internal inconsistency with the following policies of the County Plan related to development in the floodplain: POLICY 61.3.2: Floodplains must be managed to minimize the potential loss of life and damage to property by flooding. POLICY 61.3.6: Developments must have and maintain an adequate surface water management system, provision for acceptable programs for operation and maintenance, and post-development runoff conditions which reflect the natural surface water flow in terms of rate, direction, quality, hydroperiod, and drainage basin. Detailed regulations will continue to be integrated with other county development regulations. According to Mike McDaniel, a growth management administrator with the Department, "we try to discourage increasing densities in floodplains and encourage that it be located in more suitable areas." The policies set forth above are intended to aid in the achievement of Goal 61 of the Community Facilities and Service Element "to protect water resources through the application of innovative and sound methods of surface water management and by ensuring that the public and private construction, operation, and maintenance of surface water management systems are consistent with the need to protect receiving waters.” Plainly, Goal 61 is directed to regulating construction and surface water management systems. There is no mention in this goal or in the policies that implement the goal of prohibiting all development or certain kinds of development in the 100-year floodplain. The Department's argument in this case regarding development in the 100-year floodplain is rejected because it ignores relevant facts and law. First, substantial portions of Lee County and the State are within the 100-year floodplain. Second, there is no state statute or rule that prohibits development in the 100-year floodplain. Third, the Department of Environmental Protection, water management districts, and local governments regulate development in the floodplain by application of construction standards, water management criteria, and similar regulatory controls to protect floodplain functions as well as human life and property. Fourth, there has been and continues to be development in the 100-year floodplain in Lee County and throughout the State, clearly indicating that such development is able to comply with all federal, state, and local requirements imposed by the permitting agencies for the specific purpose of protecting the floodplain and the public. Fifth, the Department "discourages" development in the floodplain but has not established by rule a standard, based on density or other measure, which reasonably identifies for local governments or the general public what development in the floodplain is acceptable to the Department and what development is unacceptable. Finally, the Department's practice in allowing offsets in the CHHA, as discussed previously, necessarily allows for development in the 100-year floodplain in that particular context.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued by the Florida Land and Water Adjudicatory Commission determining that the amendment adopted by Lee County in Ordinance No. 05-10 is "in compliance" as defined in Chapter 163, Part II, Florida Statutes. DONE AND ENTERED this 25th day of August, 2006, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of August, 2006.
The Issue Whether Petitioner's and Intervenor's protest should be sustained?
Findings Of Fact FCH is a Florida Corporation authorized to do business in the State of Florida. At all times material to this case, Leo Young, Sr., was president of FCH. FCH the bid protester herein, previously was under contract with the Respondent under a 1994-95 RFP. While the business relationship started in a collegial manner, over time disputes arose between FCH and the Respondent involving FCH's performance and course of dealings under the subject contract. The Respondent received several holder complaints about FCH's behavior. The parties attempted to work out these differences in good faith, though near the end of the relationship, communications did "break down" between the two. Despite these differences, there is no evidence that the Department allowed the contracting problems to interfere with the RFP or evaluation process. Nothing in the record suggests that the evaluators improperly, illegally, unfairly, arbitrarily, or discriminatorily exercised their reasonable discretion and judgment in scoring the proposals to the best of their ability based upon the specifications and requirements set forth in the RFP. On April 11, 1997, the Department issued and advertised RFP BF 12/96-97, "Request for proposal for auditing, processing, collecting and delivering of unclaimed property held outside the State of Florida." An offeror's conference, was held on the initial RFP. After the conference a revised RFP was developed and delivered to each potential offeror. The RFP required offerors by May 2, 1997, to file a letter of intent to submit proposals. Petitioner did not submit such a letter with the Department by the May 2 deadline. After May 2, 1997, the Petitioner attempted to submit written questions regarding the subject RFP to the Department. These questions were returned to FCH because of FCH's failure at that time to file a letter of intent by the May 2, 1997, deadline. On May 9, 1997, the Petitioner filed with the Department a Notice of Intent to protest the RFP specifications. On May 19, 1997, the Department and the Petitioner entered into a stipulation resolving the Petitioner's protest of the RFP specifications. As part of the stipulation, the Department extended the filing date for the Petitioner to file its letter of intent to submit a proposal in consideration for the Petitioner's withdrawing its protest of the bid specifications. As a consequence of the stipulation, Petitioner was permitted to participate in the RFP process and submit a proposal on the RFP. Four proposals were submitted to the Department by FCH, State Street, NAPPCO, and Florida Property Recovery Consultants. The RFP was titled "Request for proposal for auditing, processing, collecting and delivering of unclaimed property held outside the State of Florida." The purpose of the RFP is to hire contractors to locate abandoned property for the state by doing audits of out-of-state companies holding property considered abandoned pursuant to Chapter 717, Florida Statutes. The RFP contained the following provisions relevant to this case. WRITTEN QUESTIONS AND OFFEROR'S CONFERENCE * * * (b) Offeror's Conference Upon request by a prospective offeror, the Department shall conduct an offeror's conference in accordance with the calendar of events in Room 334 of the Fletcher Building, Tallahassee, Florida at 2:00 P.M. (EST). Please send meeting request to Andrew Grosmaire, Contract Manager, as listed on the cover of this RFP. The purpose of the conference is to provide additional clarification regarding written questions previously submitted by the prospective offeror. Attendance is not mandatory. EVALUATION OF PROPOSALS Evaluation Information The contract will be awarded to the offeror(s), at the sole discretion of the Department whose proposal(s) is determined to be the most advantageous to the Department as formulated by the rating sheet. Evaluation Process The Department will conduct a comprehensive fair, and impartial evaluation of proposals received in response to this RFP. The process to be followed is described in the following sections and is to be conducted in four phases: Phase I - Evaluation of Mandatory Requirements Phase II - Evaluation of Technical Proposals Phase III - Evaluation of Fee Schedule Phase IV - Evaluation of Phases I - III Evaluation Committee An Evaluation committee will be established to assist the Department in selecting a Provider for services set forth in this RFP. The Committee will have a minimum of three members and at least one member external to the Department. The Committee will be responsible for proposals evaluation including reference checks and other verifications. The proposal evaluators may require an on site demonstration of the offeror's ability to provide the services at a level commensurate with the proposal and the Department's needs. RFP Rating Sheet The RFP rating sheet which lists evaluation criteria and specific indicators of criteria will be used to assess the degree to which the offeror's response meets those criteria as identified in Section 13. These criteria and the specific indicators of the criteria will be weighted so that each response to the RFP can be numerically valued and ranked. Phase I - Evaluation of Mandatory Requirements The purpose of this phase is to determine if each proposal is sufficiently responsive to the RFP to permit a complete evaluation. The Contract Manager will review the proposals for the mandatory requirements. Any proposal failing to meet any of the mandatory requirements of this RFP will be disqualified. Phase II - Technical/Services Proposal References, Resources, Prior Experience, and Procedures Each offeror shall have all of the following minimum qualifications; sufficient experience, sufficient and competent resources to perform the services, and sufficient procedures to enable the provider to perform the services The Committee members will evaluate the RFP to enable the provider to perform the services. The Committee members will evaluate the RFP for content and feedback from references in determining the offeror's past experience/ability in providing the scope of services outlined in this contract. A maximum of ninety points (out of a total of 100 points) can be awarded. Failure to submit the minimum references will disqualify a proposal from further consideration. Phase III - Evaluation of Fee Schedules For each proposal received acknowledging the services outlined in this RFP, the corresponding Fee Schedule will be examined. All fee proposals must be expressed solely in the form of a percentage of the dollar amount of the property delivered or value thereof. A total maximum value of ten (10) points will be awarded (out of a total of 100 points) to the lowest proposed fee percentage submitted. A provider shall not submit a proposal in excess of 13 percent. All other proposals equal to 13 percent or lower will be awarded points based on the following formula: (Lowest percentage proposal\other proposer's percentage) x 10. Calculation of points awarded to other proposals will use the lowest percentage amount proposed as a constant numerator and the percentage amount of the offeror being scored as the denominator. The result will always be less than one (1.0). The ratio is then multiplied by the maximum number of points given to the fee schedule of the RFP. This formula only includes valid proposals. If the answer to the formula results in a number with decimals, the decimals will be rounded to the nearest whole number when awarding points for Phase III; .5 points will be rounded upward and less than .5 will be rounded downward. Phase IV - Evaluation of Phases I - III The Contract Manager will combine those points assigned by each committee member and average all scores to determine the offeror submitting the highest rated proposal. A minimum averaged score of 80 points must be obtained by the offeror. If the minimum score is not obtained, the offeror will be disqualified. SUBMISSION OF PROPOSALS Prospective offerors shall submit two clearly identified separate sealed packages (proposals) which will be opened and evaluated in two stages. PACKAGE #1 - Technical and Proposed Services This separate package marked "RFP BF 12/96-97, Technical and Proposed Services" shall contain one original and five copies of all responses to this RFP as identified in Section 13 below, other than the "Fee Schedule." PACKAGE #2 - Fee Schedule This separate package, identified as the "RFP BF 12/96-97, Fee Schedule" shall contain one original and five copies and which shall include the offeror's proposed bid for all services set forth in the RFP including any additional services over and above the minimum set forth by the Department in this RFP. The proposed cost shall be expressed as a percentage of the dollar amount of the property delivered or value thereof. Failure to submit the bid cost data in a separate package shall result in a disqualification of the offeror. Sealed proposals must be received by the Florida Department of Banking and Finance, Purchasing Office, Room 252-D, Fletcher Building, Tallahassee, Florida 32399-0350, on or before the date and time indicated in the section entitled "Calendar of Events." All proposals must be plainly marked on the outside of the package to indicate date and time of proposal opening and RFP number. Proposals shall be prepared simply and economically. The Department is not liable for any cost incurred by an offeror in responding to this RFP. DOCUMENTS REQUIRED IN SUBMITTING PROPOSAL The documents required in submitting the technical and services proposal package are identified below. These items identified are the minimum requirements acceptable by the Department. Any proposal which does not meet these requirements will not be considered. offeror must follow the proposed format outlined below. This will produce uniform formatting of proposals which ensures fairness in rating by the Evaluation Committee members in locating information quickly when questions arise. Each heading of the outline must be addressed and in proper order. The proposal should provide a complete and detailed description of the offeror's ability to meet the requirements of this RFP. Signed State of Florida Request for Proposal, Contractual Services, Form PUR 7033 (An original form is required.) The offeror must designate, in writing, the official spokesperson of their organization authorized to sign all applicable documents required in this RFP. The offeror shall designate the location of its office within the USA to be used during the duration of this contract. An offeror must provide evidence that the organization is a legal entity. Incorporated providers must provide as an attachment to the proposal either a copy of the corporation's most current annual report on file with the appropriate state agency, or, if incorporated during the past 12 months, a copy of the corporation's articles of incorporation and charter number assigned by the appropriate state agency. Businesses which are not incorporated must provide as an attachment to the proposal a copy of their business or occupational license. Partnerships shall submit documentation of compliance with the applicable provisions of Chapter 620, Florida Statutes. The proposal must include a notarized and sworn statement indicating that the offeror will comply with all of the terms and conditions stated in the RFP. The proposal must include a notarized and sworn statement indicating that the offeror has not had any prior involvement with this RFP. This contract is subject to Chapter 112, Florida Statutes, regarding conflict of interest. The proposal must include a notarized and sworn statement indicating the offeror does not have a conflict of interest described in this RFP or Chapter 112, Florida Statutes. The offeror must disclose the name of any State employee who owns, directly or indirectly, an interest of ten percent or more in the offeror's firm or any of its subsidiaries. No Department staff shall have any interest or receive any compensation, directly or indirectly, in the offerors firm or any of its subsidiaries. This shall be an ongoing requirement and failure to comply will subject the contract to cancellation. The offeror shall provide the following for its designated custodian as described in this RFP; name, address, contact person, telephone number, proof of licensure by applicable governmental agencies, and the account number where the funds will be deposited. The offeror shall provide a sample of the indemnification agreement to be used between the Department and the holder. The offeror shall provide a sample of the monthly work report detailing the number of examinations being performed for the Department and the status of each examination. The offeror shall provide a proposal on training the Department's staff and examiners in the field of abandoned property in the first year of this contract as described in this RFP. The offeror shall provide a proposal on hosting a holder seminar for the Department before April 1, 1998, as described in this RFP with details such as location, date, and time, duration, topics, guest speakers, etc. The offeror must either supply at least three (3) references showing the offeror has previously conducted abandoned/unclaimed property examinations pursuant to Chapter 717, Florida Statutes, or to any other state's abandoned/unclaimed property law or must demonstrate the ability to perform the services specified herein. The offeror shall provide a listing of the states, the contact person and their telephone where the offeror has a valid contract to perform similar services as described in this RFP. If there are no current contracts, please indicate. The offeror must include a list of organizations of which the offeror is a member that would promote compliance with Chapter 717, Florida Statutes and abandoned property laws throughout the United States. An example of organizations would include various stock transfer associations, corporate secretary chapters, UPHLC, NAUPA, etc. If there are no current memberships, please indicate. The offeror shall provide a written summary of the experience of the organization in examining holders for unclaimed property. The offeror must include a chart of the organization, indicating how its staff will fit into the total organization, and how each member of the staff will relate to one another. The offeror must include a resume/vita for each principal of the business who will perform professional services for the RFP. The offeror shall describe its experience in interpreting various state laws and case law relating to the unclaimed property including a resume/vita and a written summary of their counsel's legal experience in dealing with unclaimed property and/or Chapter 717, Florida Statutes. The offeror shall detail the procedure to be used in processing records from a holder once the records are received from the holder. The procedure shall include a process to ensure records are processed in a timely fashion. The offeror shall provide a written summary of the examination process to be used in examining for unclaimed property. The offeror shall provide an examination manual to be used in examining holders detailing the process of examining for unclaimed property. The offeror shall provide the procedures which will allow the Department to direct, coordinate, and participate in the examination of holders of unclaimed property holders as outlined in this RFP. The offeror shall describe its database and the ability to maintain a compatible database with the Department's database. The offeror must describe the security procedures to be implemented to ensure all personnel working in the examination process will maintain the security and confidentiality of examinations at all times. Within forty-five days of the execution of the contract, the Provider shall acquire a fidelity bond, financial guaranty bond, fidelity insurance, or other financial guaranty providing protection to the Department against theft, loss, or other illegal diversion of funds from an entity duly licensed in the State of Florida in the amount of $100,000 in a form acceptable to the Department. The offeror shall submit a separate package clearly identified as "Fee Schedule" and marked on the outside with the RFP number and opening date as described in the section entitled "Calendar of Events." The Fee Schedule shall be submitted in terms expressed as a percentage of the dollar amount of property delivered or value thereof. (emphasis supplied) As indicated, the RFP also contained an evaluation sheet for use by each evaluator, which categorized the areas of review and the point scoring applicable to each. Andrew Grosmaire, Financial Examiner Analyst Supervisor for the Abandoned Property section, was the contract manager for the Division. In that capacity, he was responsible for the principal drafting of the RFP for handling the logistics of the evaluation process and for completing the Phase I review of the proposals. Additionally, he had been the contract manager over FCH's current contract with the Department. In the past, Mr. Grosmaire had had numerous conflicts with FCH over some of FCH's practices. In fact Mr. Grosmaier considered some of FCH's practices to be unethical. The opinions held by Mr. Grosmaier are debatable depending on one's philosophy on how aggressive a business should be in auditing an entity. Additionally, Mr. Grosmaier believed FCH had submitted a false statement requesting payment for work it had performed. The issue was eventually forwarded by the Division for criminal investigation by the Department. In short, the relationship between Mr. Grosmaier and FCH was highly strained and was generally known throughout the Division. However, the evidence did not show that the low opinions of Mr. Grosmaire had any impact on the Department's RFP process. Mr. Grosmaire conducted the threshold determination of whether the proposals contained the minimum documentation required by the RFP and necessary to pass on to the evaluation stage. To that end, Mr. Grosmaire determined FCH and the other offerors met the RFP's threshold requirements. Mr. DeVries is the Bureau Chief for the Abandoned Property section. He was responsible for putting together the evaluation committee according to the terms of the RFP and the requirements of Florida Statues. Mr. DeVries decided to populate the evaluation committee with individuals outside the abandoned property section in order to diminish any bias arguments he anticipated would be raised as a result of prior disputes with FCH. Additionally, he wished to capitalize on certified public accounting and auditing experience held by individuals outside the abandoned property section. The intent was for the evaluators to be able to determine whether the offerors' proposals — in particular their manuals and methodology — met American Auditing Institute standards. Additionally, the Comptroller wished to have persons outside the agency participate in RFP evaluations. Therefore, at least one of the members of the evaluation committee would not be an employee of the Department. Up to the time of posting the award, The evaluation team utilized by the Department relative to the RFP consisted of the following individuals: Rick Sweet, a Financial Examiner with the Abandoned Property section of the Department of Banking and Finance. Bob Dearden, a Financial Administrator with the Department of Banking and Finance, Division of Accounting and Auditing, with a background in auditing. Richard Law, a certified public accountant and a member of the accounting firm, Law, Redd, Crona, and Munroe located at 2727 Apalachee Parkway, Tallahassee, Florida 32301. Peter DeVries appointed Mr. Sweet, a non-CPA, abandoned property financial analyst, to the evaluation committee. Mr. DeVries also contacted William Monroe, Division Director for the Comptroller's Division of Accounting and Auditing, and requested that Mr. Monroe appoint an individual from his section to evaluate the proposals. Mr. Monroe chose Mr. Dearden to serve on the evaluation committee. Mr. Grosmaire contacted the Florida Institute of Certified Public Accountants in order to obtain the name of a non-departmental, CPA qualified to serve on the evaluation committee. The Florida Institute referred Mr. Law to the Division and he was placed on the evaluation committee. All of the initial committee members had sufficient knowledge of auditing procedures and were qualified to evaluate this RFP. Mr. Grosmaire provided the evaluators with copies of the submitted proposals, the revised RFP, and the evaluation sheets for their use in scoring. Mr. Grosmaire informed the evaluators that in performing their evaluations they were to only consider the RFP and the documents submitted by the offerors. No other instructions were given to the initial committee members. The evaluators kept the materials provided for approximately one week and performed their respective evaluations. During that time no other significant contact relative to this proceeding occurred between the evaluation committee members and Mr. Grosmaire. There is simply no evidence that Mr. Grosmaire improperly attempted to adversely influence the independent evaluations of the various evaluators. As indicated, each evaluator individually reviewed the RFP, the scoring criteria, and scored each proposal against the RFP requirements. Each evaluator placed their scoring numbers on their respective rating sheets. Mr. Sweet, a financial examiner with the Abandoned Property section, as noted, evaluated the proposals, Mr. Sweet has had training in both abandoned property and in auditing. In performing his evaluations, he exercised his best discretion and judgment in arriving at his scores. In sum, his explanations for scoring as he did were reasonable. Mr. Sweet had previous experience in evaluating similar RFP's in that he was on the evaluation team for the previous year's RFP concerning the same subject matter. Neither Mr. Young or FCH objected to Mr. Sweet's involvement as an evaluator on the previous RFP. Additionally, Mr. Sweet, in performing his evaluation, telephoned a reference, an employee of the State of Maine, listed by FCH. He wrote her responses regarding FCH down on a reference check sheet. The reference noted to Mr. Sweet that they "were contacted by nearly every holder contacted by FCH with complaints." In terms of what strengths the reference would recommend as to FCH, the reference responded "none." Mr. Dearden, a financial administrator for the Department of Banking and Finance, Division of Accounting and Auditing, also served as an evaluator of the proposals. Prior to and during his activity as an evaluator, Mr. Dearden had no prior contact or involvement with any of the offerors, including FCH. In addition, he had little contact with either Mr. Grosmaire or Mr. DeVries and was not influenced by anyone in the agency relative to the manner in which he scored the various proposals. Mr. Dearden had also previously been an evaluator on an abandoned property RFP dealing with the collection of in-state property. Mr. Dearden utilized his best efforts to review each RFP, the evaluation standards, and score each proposal on its terms. The explanations for his scoring were reasonable. While Mr. Dearden had limited prior experience in abandoned property, his experience in auditing as well as his review of the RFP requirements and previous experience as an abandoned property evaluator allowed him to adequately evaluate the proposals. According to the RFP specifications, a minimum average score of 80 was required in order for an offeror to be awarded a contract. Based upon the averaged scoring, State Street and NAPPCO scored over 80 points; FCH and Florida Property Recovery Consultants scored under 80 points. In particular, State Street's overall scores were 89, 88, and 90; NAPPCO's scores were 87, 81, and 86. FCH's scores were 66, 71, and 60 and those of Florida Property Recovery Consultants, Inc., were 42, 57, and 49. Based on these scores, the Department posted the award sheet, indicating the award of a contract to State Street and NAPPCO. The proposal tabulation and notice of award was posted on June 18, 1997. On June 20, 1997, FCH filed a Notice of Intent to Protest with the Department. The notice was timely filed within 72 hours of posting the bid/proposal tabulation. On June 30, 1997, FCH filed a formal written protest of the RFP. The formal protest was timely filed within 10 days of the filing of the Notice of Intent to Protest. Subsequent to the posting of the intent to award and the filing of this bid protest, the Department learned that Florida Statutes required that at least three employees of the Department who "have experience and knowledge in the program areas and service requirements for which contractual services are sought" serve on the evaluation committee. Section 287.057(15), Florida Statutes. The initial committee only had two such employees on the evaluation committee. In order to correct this oversight, Mr. Devries requested that Mr. Monroe, Division Director of Accounting and Auditing, appoint another employee to the evaluation committee. Mr. Monroe appointed Michael Gomez, a state employee, to the committee to additionally evaluate the proposals. Mr. Gomez has an extensive background in auditing and accounting and was qualified to evaluate the proposals. In fact, the evidence showed that all the committee members were familiar with the program and auditing requirements of the abandoned property section. He had no prior dealings or communications with FCH or any other bidder prior to the time of his evaluation of the proposals. Mr. Gomez received the evaluation materials from Mr. Grosmaire. Mr. Grosmaire also instructed Mr. Gomez as he had the other three committee members. Mr. Gomez reviewed the RFP and the proposals and submitted his scores on June 9, 1997. Mr. Gomez scored the proposals as follows: Florida Property Recovery Consultants, Inc.: 59; State Street Bank: 98; FCH: 76; and NAAPCO: 94. Mr. Gomez, in performing his evaluations, exercised his best discretion and judgment and felt comfortable evaluating the RFP auditing proposal based upon his auditing background. His explanations for the scores he gave were reasonable and did not change the original rankings of the initial committee. The evidence did not demonstrate that the Department's belated compliance with the statute caused any prejudice to the offerors or undermined the goals of the RFP process. Moreover, the evidence did not demonstrate that the department acted arbitrarily, capriciously or in bad faith in either its process, evaluation or intended award of the contract outlined in this RFP. Therefore, the protest should be dismissed.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Office of the Comptroller, Department of Banking and Finance, enter a Final Order awarding contracts to State Street and NAPPCO and denying Petitioner's and Intervenor's request for relief and dismiss their protests. DONE AND ENTERED this 25th day of November, 1997, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 25th day of November, 1997. COPIES FURNISHED: Will J. Richardson, Esquire Richardson Law Offices, P.A. Post Office Box 12669 Tallahassee, Florida 32317-2669 H. Richard Bisbee, Esquire Office of the Comptroller 101 East Gaines Street, Suite 526 Tallahassee, Florida 32399-0350 Stanford P. Birnholz, President Florida Property Recovery Consultants, Inc. 8090 Atlantic Boulevard, F-79 Jacksonville, Florida 32201 Harry Hooper, Esquire Department of Banking and Finance The Capitol, Room 1302 Tallahassee, Florida 32399-0350 Robert F. Milligan, Comptroller Department of Banking and Finance The Capitol, Plaza Level Tallahassee, Florida 32399-0350
Findings Of Fact Petitioner is the general partner of Marstof, Ltd., which owns certain property located at Section 24, Township 28, Range 17, Hillsborough County, Florida, and consisting of approximately thirty acres. Its specific location is on the west side of Twelve Oaks Boulevard, and 400 feet north of Heatherfield Drive. Respondent is an expressway authority created under Chapter 348, Florida Statutes, with eminent domain authority pursuant to Chapter 74, Florida Statutes. The property in question is surrounded on the north by a railroad, vacant land, and a strip of commercial property. To the east and west is vacant land, while to the south are single family residences, with some environmentally sensitive areas. There are some trees on the site, but there is no significant vegetation. Petitioner signed a contract to purchase the subject property for $953,000 on September 27, 1985. The property was zoned "Agricultural" at that time, and since Petitioner intended to develop this property for residential uses, he immediately began preliminary lot layout for marketing, and preliminary layout of a proposed waste water treatment facility. These preliminary layouts were submitted to the Hillsborough County Department of Development Coordination in December, 1985. In early 1986, surveys were ordered, a well as soils and environmental studies, and final subdivision design began. By mid-1986, side and environmental plans, as well as plans for a temporary waste water treatment plant were submitted to state and local permitting agencies. In the fall of 1986, revised plans were prepared and submitted, as required. Petitioner began discussions in December, 1986, with General Homes Corporation for their purchase of all residential lots on the subject property. On December 22, 1986, Petitioner received a letter of intent from General Homes, and on March 4, 1987, General Homes executed a contract to purchase all lots in Petitioner's proposed subdivision for a total of approximately $2.5 million. On March 9, 1987, Petitioner filed an application for rezoning of the subject property from "Agricultural" to "Planned Development, Housing" This rezoning was approved on June 23, 1987. However, General Homes had canceled their contract with Petitioner on or about March 25, 1987. Other developers did express an interest in purchasing Petitioner's lots, but no subsequent purchase contract was executed. As part of the rezoning approval, Petitioner conveyed a portion of the subject property, without monetary consideration, to the County for an extension of Twelve Oaks Boulevard, as well as an additional portion used for environmental mitigation. Following approval of his rezoning application, Petitioner filed his revised site plan and request to use an interim waste water treatment plant, to which there was no objection. By October 10, 1987, Petitioner had obtained all necessary approvals and permits, as well as the rezoning of the subject property, to begin pulling permits for development of this residential subdivision consisting of 128 approved lots with a wholesale value of approximately $2.68 million, or $21,000 per lot. He did not begin development, however, because of concerns about the possible impact of the Northwest Expressway on his development. Although no map reservation had been filed, it appeared to Petitioner that it was likely that the proposed route of the Expressway would be through his property. He did not proceed because he was concerned about the marketability of homes next to, or near, the eventual site of the Expressway, the possibility of default on any development loan he would have to obtain if the Expressway was located through his property, and he also wanted to avoid inflating the eventual cost of the property if it had to be taken through eminent domain. The map of reservation filed on July 8, 1988 by Respondent shows that the Expressway right of way crosses directly through the subject property in an east-west direction. The right of way varies from approximately 250 to 290 feet in width. To the south of the Expressway right of way is a portion of the subject property owned by Petitioner of approximately 10 acres on which 34 residential lots could be located. To the north of the right of way is an area that the parties agree is not developable because the Expressway will cut off all access to this northern parcel. The developable southern parcel of approximately 10 acres cannot be profitably developed with only 34 lots. Petitioner testified that no more than 34 lots can be developed on this parcel, and this testimony is supported by a revised site prepared by his consulting engineer and land surveyor. There is no evidence to the contrary. It is not economically feasible to develop this southern parcel due to the original land cost, and the deflating impact which the location of the Expressway next to this parcel will have. Petitioner has invested a total of approximately $1.15 million in the acquisition of the subject property, including its rezoning, site plans, and obtaining all necessary permits and approvals to commence development. He estimates that he could reasonably receive $2.75 million through the bulk sell- out of 128 finished lots at current market conditions, if it were not for the proposed location of the Expressway through his property. Due to the filing of the map of reservation by Respondent for the Northwest Expressway, Petitioner cannot proceed with any portion of the development of residential lots on the subject property. The only evidence in the record is that Petitioner has been deprived of a substantial portion of the beneficial use of the subject property.
Recommendation Based upon the foregoing, it is recommended that the Respondent enter a Final Order granting Petitioner the relief sought, and within 180 days either acquire Petitioner's property, amend the map, withdraw the map, or file appropriate proceedings. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 21st day of December, 1988. DONALD D. CONN 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 December, 1988. COPIES FURNISHED: A. Broaddus Livingston, Esquire One Harbour Place Post Office Box 3239 Tampa, Florida 33601 William C. McLean, Esquire 707 Florida Avenue Tampa, Florida 33602 Ray Speer, Executive Director Tampa-Hillsborough County Expressway Authority 412 East Madison, Suite 802 Tampa, Florida 33602
The Issue Whether the Appellant, Edward M. Mitchell, has demonstrated that development rights in certain real property he owns have vested against the provisions of the 2010 Comprehensive Plan?
Findings Of Fact The Property at Issue. On or about September 23, 1980, Mr. Mitchell entered into an agreement to purchase 6.141 acres of property (hereinafter referred to as the "Property"), located just north of Interstate 10, on the east side of North Meridian Road, Leon County, Florida. The Property was to be purchased from Textron Petroleum Products, Inc. The following "additional provision" was included in the agreement entered into for the purchase of the Property: Buyer to have 30 days from date hereof within which to obtain such permits as he deems necessary. If Buyer cannot obtain the same, he shall give written notice thereof within said time limit and the contract shall be null and void. If such written notice is not given within such period, this contingency shall be deemed waived. In 1980, the Property was zoned C-1, neighborhood commercial. Under C- 1 zoning, neighborhood commercial, up to 69,000 square feet of commercial space could be placed on the Property based upon a restriction of 85% impervious surface. Mr. Mitchell wanted to insure that he could obtain the permits necessary to develop the Property consistent with C-1 zoning before he purchased the Property. On or about November 3, 1980, the real estate broker involved in the purchase of the Property, sent a letter to Bob Speidel of Environmental Services of Leon County. In the letter Leon County was informed of the pending sale of the Property and the contingency of "Mr. Mitchell being able to obtain a permit to develop the tract by clearing the land, constructing a retention pond and filling the remaining land to a usable elevation." On or about November 7, 1980, an Application for Permit for Clearing and Development was filed on behalf of Mr. Mitchell. This permit was the only permit required in 1980 to develop the Property. The evidence failed to prove, however, that it was the only permit required to develop the Property immediately before the adoption of the 2010 Comprehensive Plan. On or about November 14, 1980, a Clearing and Development Permit, number 1113 (hereinafter referred to as "Permit 1113"), was issued on the Property by the Leon County Department of Public Works, Division of Environmental Services. Permit 1113 specifically provided that Mr. Mitchell was authorized by the permit "to make changes in this land proposed to be subdivided, developed or changed in use by grading, excavating, removal, alteration or destruction of the natural top soil, as hereinafter located and described." The specific use Mr. Mitchell planned to put the Property to and the manner of developing the Property were not specified in Permit 1113 or the application therefore. On or about December 23, 1980, Mr. Mitchell purchased the Property for $44,211.92. Mr. Mitchell would not have purchased the Property for the price paid if it had not been zoned C-1 or if he had not obtained Permit 1113 or a similar permit. The weight of the evidence failed to prove that Mr. Mitchell informed Leon County prior to his purchase of the Property what specific use the Property would be put to or that Leon County ever approved any specific type of development of the Property. Development of the Property. Sometime between 1980 and 1985, Mr. Mitchell cleared the Property. In June, 1985, Mr. Mitchell applied with the Florida Department of Environmental Regulation for a General Permit for New Stormwater Discharge Facility Construction. In October, 1985, the permit was approved. When the Property was cleared some of trees were removed which should not have been removed. Therefore, in July, 1985, Mr. Mitchell agreed to replant trees on the Property. In August, 1985, Mr. Mitchell was issued a Tree Removal Permit for the trees that had already been removed. Mr. Mitchell brought fill (approximately five feet) onto the Property and did substantial grading of the Property. The elevation of the Property was increased from 108 feet to 112-113 feet. Storm water drainage was designed and installed on the Property. The storm water pond was built to accommodate 65,000 to 70,000 square feet of construction. Leon County was aware of this fact. In order to maximize use of the Property a Leon County employee informed Mr. Mitchell that he could place the retention pond on an abutting parcel of property. Consequently, Mr. Mitchell purchased an adjoining parcel of real estate. Mr. Mitchell has not obtained a storm water permit, a building permit or site plan review or approval for the Property. Mr. Mitchell has worked closely with officials of Leon County before and after his purchase of the Property. Mr. Mitchell retained an engineer to prepare a site plan for the Property. The site plan was prepared consistent with C-1, neighborhood commercial zoning, 85% impervious surface and off-site retention. The weight of the evidence failed to prove that Leon County was made aware of the site plan. Mr. Mitchell would not have done the site work or purchased the abutting parcel of property except for the C-1, neighborhood commercial zoning of the Property and the issuance of Permit 1113. The weight of the evidence failed to prove that Mr. Mitchell informed Leon County after his purchase of the Property what specific use the Property would be put to or that Leon County ever approved any specific type of development of the Property. Change in Position or Obligations and Expenses Incurred by Mr. Mitchell. Mr. Mitchell spent $44,211.92 to purchase the Property based upon the zoning on the Property and the issuance of Permit 1113. The work performed on the Property after it was purchased by Mr. Mitchell was performed primarily by Mitchell Brothers, Inc., a company owned by Mr. Mitchell. The "value" of the work performed by Mr. Mitchell was in excess of $250,000.00. The evidence failed to prove what the actual cost of the work performed was to Mr. Mitchell. Mr. Mitchell acquired the abutting parcel of property in reliance on the zoning on the Property, Permit 1113 and a suggestion of an official of Leon County. The abutting property costs several thousand dollars. The evidence failed to prove, however, that the suggestion of the Leon County official concerning the purchase of the abutting property constituted a representation of Leon County that the Property could be developed in a particular manner. It was merely a solution offered to a problem of Mr. Mitchell which Mr. Mitchell was free to reject or accept. The suggestion also only confirmed that the Property could be developed under the current zoning. Development of the Property under the 2010 Plan. Under the 2010 Comprehensive Plan, the Property is located in an area designated as "lake protection." Only minor commercial uses would be permitted in such an area. Under the 2010 Comprehensive Plan, the Property may be developed with a maximum of 20,000 square feet of retail (non-office) space. Additionally, one dwelling unit per two acres of property could also be used for residential purposes. Therefore, the Property could be developed by building three residences on the Property in addition to the 20,000 square feet of retail space. Only approximately one-third of the site work that has been performed on the Property would be needed to develop only 20,000 square feet of commercial space on the Property and the purchase of the abutting property would not have necessary. Procedure. On or about November 2, 1990, Edward M. Mitchell filed an Application for Vested Rights Determination (hereinafter referred to as the "Application"), with Leon County. By letter dated January 2, 1991, Mr. Mitchell was informed that his Application was incomplete. By letter dated January 18, 1991, Mr. Mitchell provided the additional information requested. By letter dated January 25, 1991, Mr. Mitchell was informed that Leon County intended to deny his Application. Mr. Mitchell requested a hearing before the Staff Committee of Leon County by letter dated January 30, 1991. On February 11, 1991, a hearing was held to consider the Application before the Staff Committee. By letter dated February 13, 1991, Mark Gumula, Director of Planning of the Tallahassee-Leon County Planning Department informed Mr. Mitchell that the Application had been denied. On February 22, 1991, a Notice of Appeal was filed by Mr. Mitchell appealing the decision to deny the Application. By letter dated March 1, 1991, the Division of Administrative Hearings was requested to provide a Hearing Officer to review this matter. By agreement of the parties, the undersigned allowed the parties to supplement the record in this matter on May 24, 1991.
