The Issue Whether Petitioner should be granted a license for a private airport some four miles east of Dundee, Florida.
Findings Of Fact Frank J. Drewniany, Petitioner, is the owner of 153 acres of undeveloped land some 4 miles east of Dundee, Florida, which he proposes to develop and on which he proposes to operate a private airport. On October 28, 1988, Petitioner applied for a site permit and license for a private airport (Exhibit 1). The application provided the information required by statute and the rules of the Department of Transportation (DOT), Respondent. This information included evidence of Applicant's right to so use the property, a list of airports within 15 miles of the proposed facility, mailing addresses of all landowners within 1000 feet of the proposed facility, FAA airspace approval and the prescribed fees. The proposed site was inspected by John Roeller, the Florida DOT airport program administrator in the district office having jurisdiction over the area. This inspection revealed the site to be adequate for the proposed airport; the airport, if constructed, would conform to minimum standards of safety; the local zoning was appropriate for the airport; the Applicant had provided a list of all airports and municipalities within 15 miles of the proposed airport and all property owners within 1000 feet of the proposed airport; and that safe air traffic patterns can be worked out for the proposed airport. Following this inspection Roeller, on October 31, 1988, executed the prescribed certification that the site is feasible for the proposed use and can meet the requirements set forth in Chapter 14-60, Florida Administrative Code (Exhibit 5). By letter dated August 22, 1988, the Federal Aviation Administration (Exhibit 6) determined the proposed airport would not adversely affect the safe and efficient use of airspace by aircraft if operations are conducted in VFR weather conditions and the landing area is limited to private use. By Notice of Intent to issue site approval dated March 22, 1989 (Exhibit 7), the DOT published the intent to issue the requested permit and advised protestors would be allowed to air their views at a public meeting on May 10, 1989. Following this public meeting, Site Approval Order 89-13 (Exhibit 8) was issued, a hearing was requested to contest the issuance of the requested license and these proceedings followed. Intervenors presented evidence of a general concern for the safety of residents living in the vicinity of the airport and hearsay evidence regarding crashes of private planes in various areas of the United States. No evidence was presented by Intervenors to rebut the evidence that the Applicant had complied with the requirements for site approval and licensure contained in Chapter 14-60, Florida Administrative Code.
Recommendation It is recommended that a Final Order be entered granting Frank J. Drewniany a license to operate a private airport at Latitude 28 -00'-40" North and Longitude 81 -31'40" West, subject to restrictions established by the FAA and DOT to insure safe air patterns are established for the proposed private airport. ENTERED this 27th day of November, 1989, in Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of November, 1989. COPIES FURNISHED: Roger W. Sims, Esquire Post Office Box 1526 Orlando, Florida 32802 Thomas J. Patka, Esquire Post Office Box 1288 Tampa, Florida 33601 Vernon L. Whittier, Jr., Esquire 605 Suwannee Street Tallahassee, Florida 32399-0458 Thomas J. Hirt 1 Cypress Run Sun Air Country Club Haines City, Florida 33844 Ben G. Watts Interim Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Thomas H. Bateman, III General Counsel 562 Haydon Burns Building Tallahassee, Florida 32399-0450
Findings Of Fact On November 15, 1982, Petitioner applied to Respondent to take the January 31, 1983, pilot's examination for the Port of Miami. Prior to that time, Petitioner had served as an apprentice pilot in the Port of Miami from January 1, 1967, through January 1, 1971. Petitioner was terminated from his position as an apprentice pilot with the Port of Miami in 1971, and has not piloted any ships in the Port of Miami or any other port in the state since that time. At the time of his application to take the pilot's examination, Petitioner was over 18 years of age, had been awarded a high school diploma, and was in good physical and mental health. Petitioner had also obtained a valid first class unlimited pilot's license issued by the United States Coast Guard in 1971. In addition to Petitioner, three other persons, William A. Arata, Stephen E. Nadeau, and Robert K. Brownell, also applied to take the January 31, 1983, pilot's examination for the Port of Miami. Arata submitted his application to sit for the examination on November 19, 1982. At that time, Arata had been licensed as a deputy pilot for the Port of Miami since January 28, 1980. In addition, he possessed an unlimited first class pilot'S license for the Port of Miami and had successfully completed the deputy pilot training program for that port. On November 24, 1982, Nadeau submitted his application to sit for the January 31, 1983, pilot's examination. Nadeau had been licensed as a deputy pilot in the Port of Miami since July 23, 1980, possessed an unlimited first class pilot's license for the Port of Miami, and had successfully completed the Port of Miami deputy pilot training program. Brownell applied on November 29, 1982, to sit for the same pilot's examination. At that time, Brownell had been licensed as a deputy pilot for the Port of Miami since July 31, 1980, also possessed an unlimited first class pilot's license for the Port of Miami, and had successfully completed the Port of Miami deputy pilot training program. In accordance with the provisions of Section 310.071, Florida Statutes, the applications of Petitioner, Arata, Nadeau, and Brownell were submitted to the Department of Professional Regulation which, in turn, submitted those applications to Respondent for a determination of eligibility to sit for the licensing examination. Respondent ultimately determined and advised the Department of Professional Regulation that all four applicants were qualified to sit for the licensing examination. All four applicants took the examination on January 31, 1983, and each of them received a passing grade. In accordance with Rule 21-8.09, Florida Administrative Code, the Department of Professional Regulation ranked the grades received by the applicants from highest to lowest. Petitioner received the lowest grade of the four applicants. Accordingly, since Respondent had certified three openings to be filled for licensed state pilots in the Port of Miami, the Department of Professional Regulation, act some time between February 1, 1983, and May 6, 1983, issued state pilot licenses for the Port of Miami to Captains Arata, Nadeau, and Brownell. There is in force in the Port of Miami a Deputy Pilot Training Program which has been approved by Respondent. The minimum time required for completion of the program, which is a prerequisite for applying for a state pilot's license, is two years. One of the requirements of the program is that participants obtain a first class unlimited pilot's license from the United States Coast Guard. This license allows the holder to pilot coastwise vessels which sail under the American flag. A state pilot's license standing alone permits the holder only to pilot ships sailing under foreign flags. In order to acquire a first class unlimited pilot's license, an applicant must possess another maritime license, such as a master's or male's license, must meet age and sea experience requirements, and must pass an examination prepared and administered by the United States Coast Guard. In addition, a condition to obtaining a first class unlimited pilot's license is that the applicant must possess a radar observer's certificate. The Florida State Pilot's Association, Inc., is a nonprofit corporation composed of 59 licensed state pilots from every port in Florida with the exception of Jacksonville and Fort Pierce. Captains Arata, Nadeau, and Brornell are members of that organization. The purpose of the organization is to represent the interests of its members at local, state, and federal levels.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times pertinent to this proceeding respondent was licensed by the petitioner as a pilot. He began sailing as a seaman in 1945, received a pilot's license in Texas in 1954, was a captain of tugs from 1954 to 1969 and has been a member of the Tampa Bay Pilots Association from 1969 to the present time. Respondent has made close to sixty (60) trips per month in and out of Tampa Bay since 1969. On August 6, 1981, at approximately 1500 hours, Captain Baggett was aboard the M/V IFNI, a medium-sized oceangoing vessel, and was proceeding outbound in Tampa Bay. The tug DIXIE PROGRESS and Barge B-103 were proceeding inbound. The DIXIE PROGRESS, which is 115 feet long and 35 feet wide, was pushing Barge B-103, which is 430 feet long and 80 feet wide. The Barge was carrying 147,000 barrels of gasoline at the time. As the IFNI was in "G" Cut, Captain Baggett noticed the tug and barge proceeding inbound in "D" Cut, approximately three to five miles from him. He radioed the DIXIE PROGRESS in order to make arrangements for the meeting and passage of the two vessels. Respondent inquired if there was a pilot aboard the tug. In arranging meeting situations, it is customary for one pilot to communicate directly with the pilot on the other vessel. Donald Hyde, the first mate aboard the DIXIE PROGRESS responded to Captain Baggett's call and informed him that there was no pilot aboard the tug. Respondent informed Hyde that he would meet them in Cut "E" on one whistle. Walter H. Williams, the Captain aboard the DIXIE PROGRESS, was standing near the radio when respondent called from the IFNI. At the time, Captain Williams felt that respondent would try to break up the tug and barge on passing because the tug did not have a pilot on board. For that reason, he relieved his mate and took control of the tug. The DIXIE PROGRESS was the last vessel in Tampa Bay to start using pilots, and did not start taking pilots until September of 1981. Respondent Baggett's son wads employed by Dixie Carriers, Inc., the owner of the DIXIE PROGRESS. At the time of the radio communication with Captain Baggett, the DIXIE PROGRESS was travelling at a speed of about 5.5 knots. Its speed was reduced to ensure that the meeting would occur in Cut "E". As the IFNI passed through "F" Cut, two dredged were working in the vicinity. Captain Baggett decreased the speed of the IFNI as he approached each dredge, and stopped the engine after passing each dredge. After passing the second dredge in "F" Cut and while making the turn into "E" Cut, Captain Baggett ordered the engines full ahead. Captain Williams and first mate Hyde noticed a puff of black smoke emit from the IFNI after it passed the last dredge in "F" Cut and turned into "E" Cut. At this point, as the IFNI began to gain speed, the two vessels were approximately eight-tenths to one mile apart. Some seven to eight minutes later, the IFNI and the tug and barge passed each other in "E" Cut at a distance of approximately 75 feet. The channel in "E" Cut is about 400 feet wide. After the IFNI passed the tug and barge, waves of approximately five or six feet in height caused the barge to dive under the water and, as it came back up, a push wire two inches in diameter broke. After passing the DIXIE PROGRESS, respondent looked astern and noticed the tug and barge at odd angles to each other. He radioed the tug and inquired as to what had happened. When informed by Captain Williams that a push wire had broken, respondent replied that he was sorry and that he had not realized that the IFNI had caused such a large wake. At no time during the incident in question did DIXIE PROGRESS Captain Williams feel that his vessel was in danger or that there was going to be a loss of property or life. He considered this to be a minor incident. It is not unusual for another vessel to pass the DIXIE PROGRESS and its barge at a speed of full ahead. The DIXIE PROGRESS and Barge B-103 frequently "push out" of the Mississippi River in six foot seas using the same "in the notch" configuration as was used during the incident in question. It is not unusual for the push wires which connect a tug and barge together to snap. The Captain and first mate aboard the DIXIE PROGRESS estimated that the IFNI was travelling at a speed of approximately 15 knots as it passed the tug and barge. Captain Baggett believed that he was travelling at a speed of about 7.5 knots as he passed the DIXIE PROGRESS. To travel a distance of approximately eight-tenths of a mile in seven or eight minutes would result in an average speed of about six to seven knots. It could take the vessel IFNI anywhere from six to twelve minutes to reach full speed from a stopped engine, depending upon the currents and other factors. The speed which a reasonable and prudent pilot should maintain when approaching and passing a tug and barge is dependent upon the circumstances, including the weather conditions and currents, the swell or wake the vessel is pulling, the size and configuration of the channel, the amount of water outside the channel and the configuration and weight of the vessels. While a passage within 200 feet with the IFNI travelling at a speed of 15 knots would not be something that a reasonable and prudent pilot would do, it cannot be determined without knowledge of the surrounding circumstances whether a passage at 8 knots would constitute incompetence, negligence or misconduct. By a "Final Order" signed by the Chairman of the Board of Pilot Commissioners and filed on July 28, 1981, it was ordered that a proposed Stipulation in Case No. 0007227 was approved, adopted and incorporated by reference and that Thomas A. Baggett "is reprimanded and is placed on probation for a period of one (1) year. . . ." The Stipulation reveals that that case was the subject of a proposed complaint in a case factually unrelated to the present case and that part of the consideration for the Stipulation was that the proposed administrative complaint in that case be held in abeyance. Among the terms of the Stipulation were that "The Respondent shall be placed on probation for a period of one year from the date of the final order of the Board accepting this sti- pulation. The order of Probation will be deemed to have been violated, subject to proving the allegations, if the Respondent is found by the Probable Cause Panel of the Board to have engaged in any conduct which constitutes negligence, incompetence or mis- conduct as presently embodied within section 310.101, Florida Statutes. In such case both a new proposed Administrative Complaint may be filed and the instant proposed Admini- strative Complaint may be instituted. In this respect, the Respondent specifically waives any procedural objections to insti- tuting the instant proposed Administrative Complaint." In October of 1981, by a vote of 2-2, the Board of Pilot Commissioners refused to modify the Final Order of July 28, 1981, so as to delete the word "probation" from its terms.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the Administrative Complaint filed against the respondent on January 18, 1982, be DISMISSED. Respectfully submitted and entered this 5th day August, 1982, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 Filed with the Clerk of the Division of Administrative Hearings this 6th day of August, 1982. COPIES FURNISHED: C. Steven Yerrid Holland and Knight Post Office Box 1288 Tampa, Florida 33601 W. B. Ewers, Esquire Special Trial Counsel 2170 SE 17th Street Suite 204 Ft. Lauderdale, Florida 33316 Jane Raker, Executive Director Board of Pilot Commissioners 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact The following findings are based upon the stipulation of the parties filed on July 25, 1986: The Sarasota-Manatee Airport Authority (Authority) was created by the Sarasota-Manatee Airport Authority Act, Chapter 31263, Laws of Florida (1955), as amended by Chapter 77-651, Laws of Florida. The members of the Authority are elected--by the voters of Manatee and Sarasota Counties. Two members are from Manatee County and two members are from Sarasota County. The Authority owns and operates the "Sarasota-Bradenton Airport" on approximately 1,095 acres of land, portions of which are located within the jurisdictions of the City of Sarasota, Manatee County, and Sarasota County. The Sarasota-Bradenton Airport has been in its present location since 1941. Jet service was initiated in the 1960's. The Authority has proposed what was agreed to be a development of regional impact on a portion of its property. The project includes replacement of existing terminal buildings, automobile parking facilities, rental car agency service facilities, air freight facilities, the relocation of the airport entrance and exit roadways, the placement (sic) of the internal roadway network and construction of a new aircraft parking apron. No runway construction or expansion is proposed. The proposed project involves 173 acres. Improvements are proposed on 89 acres in Sarasota County, 72 acres within the corporate limits of the City of Sarasota, and 12 acres in Manatee County. The project is designed in two phases. Phase One involves demolition of existing structures and construction of new terminal facilities, including air sides A and B, construction of portions of the parking apron, the airport entrance, internal roadways, drainage and wastewater collection improvements on the airfield. Drainage improvements have been permitted and construction completed. Phase Two construction includes air side C and adjacent aircraft parking apron, relocation of the air freight facility, and development of non- aviation commercial lease plots. The present terminal building consists of approximately 83,700 square feet of space (including canopies and land area), about 900 parking spaces and an 18 acre aircraft apron. Since July 1, 1973, several additions to the terminal have been constructed. These include: 1978--Eastern baggage claim (5,250 square feet); 1979--Wood terminal (15,840 square feet); 1983--Peoples Express Departure Lounge (1,800 square feet); 1983--Commuter terminal (6,000 square feet); and 1984--Main terminal renovations (2,150 square feet). In Binding Letters of Interpretation Nos. 874-046, 874-030 and 975-030, the Department of Community Affairs determined that the construction of a parking lot, the strengthening of existing runways, the extension of taxiways, the addition of blast pads and the construction of a service road in and of themselves were not subject to the provisions of Chapter 380, Florida Statutes. The replacement terminal building will be 200,000 square feet with 1,200 parking spaces and 12 air carrier gates. The airport property zoning in the Manatee County area is "M-1-LI". The property is not zoned in Sarasota County or in the City of Sarasota. In early 1985, the Authority submitted an Application for Development Approval (ADA) to each local government having jurisdiction pursuant to Section 380.06(6), Florida Statutes, which local governments included Manatee County, the City of Sarasota and Sarasota County. In addition, the Authority submitted an application for a "special permit" (5P 85-80) to Manatee County pursuant to the Manatee County Land Development Code. By pre-application agreement, the ADA was limited to questions about general project description, wastewater management, drainage, water supply, solid waste and specific information about public transportation facilities and airports. Copies of the ADA were sent to all appropriate parties. The City of Sarasota and Sarasota County did, after publication and notice, hold joint public hearings on July 24, 1985, (Sarasota Planning Commission/City of Sarasota Planning Board) and September 12, 1985, (City of Sarasota Commission and Sarasota Board of County Commissioners). Pursuant to the requirements of Chapter 380, Florida Statutes, and the Manatee County Land Development Code, public hearings were held on September 11, October 2, 9 and 11, 1985, before the Manatee County Planning Commission and on October 13 and 17, 1985, before the Board of County Commissioners of Manatee County. The Southwest Florida Regional Planning Council, on July 18, 1985, adopted its "Assessment for the Sarasota-Bradenton Airport" DRI #28485-52 which constituted its Regional Report and Recommendations. The Tampa Bay Regional Planning Council met August 12, 1985, and adopted its Final Report and Recommendations for "DRI #124," Agenda Item #6B. The City of Sarasota and Sarasota County issued timely development orders approving the ADA with conditions. The Department of Community Affairs appealed those Orders regarding traffic impact mitigation required in the Orders. The appeal of the Orders by the Department of Community Affairs has been settled and dismissed. The Manatee County Board of County Commissioners denied both the "special permit" and also the Application of Development Approval. The following findings of fact are based upon the evidence presented, after considering the credibility and demeanor of witnesses who testified, as well as stipulations entered after the hearing commenced: The Authority and Southwest Florida Planning Council (SWFRPC) timely appealed Manatee County's denials of the "special permit" and ADA. On November 19, 1984, the Department of Community Affairs (Department) issued Binding Letter of Interpretation No. 984-035, which evaluated Phase One of the proposed airport expansion and concluded that Phase One was a development of regional impact. In its binding letter, the Department found that Phase One would allow an increase in the number of flights, and would thus impact on noise levels near the airport. Further, it was found that "potentially this project will have a substantial impact on noise levels within residential areas located in both Manatee and Sarasota Counties." Binding Letter of Interpretation No. 984-035 was not appealed and remains the Department's final agency action. The Department's Binding Letter of Interpretation No. 984-035 did not determine the extent of regional noise impact that would result from Phase One, nor did it determine or recommend noise mitigation conditions that might be imposed upon the proposed airport expansion at the conclusion of the development of regional impact process. An increase or decrease in airport operations is primarily a function of market demand and airfield capacity. Allen K. Eckle, who was accepted as an expert in civil engineering with expertise in airport planning, noise and transportation, testified that terminal improvements and an expansion of the airport terminal could potentially increase airport noise by increasing market demand, but such an increase resulting solely from terminal improvements or expansion would be imperceptible and unquantifiable. While market demand will be primarily responsible for a projected increase in aircraft volume of as much as 20 percent over the next five years, the portion of this increased volume attributable to this terminal project has not been established, and therefore it cannot be determined what, if any, increase in noise resulting from this increase in aircraft volume will be directly attributable to the terminal project. The terminal project will facilitate the use of the Sarasota-Bradenton Airport by larger, wide-body aircraft due to improved aircraft parking gate configuration, direct terminal access and larger departure lounge accommodations. The newer, larger, wide-body aircraft are quieter than smaller aircraft, and therefore the use of the airport by these larger aircraft will lower the average single event noise levels, and thereby lessen, and potentially eliminate, any increase in noise levels which would otherwise occur due to the projected increase in aircraft volume. Aircraft volume is projected to increase whether or not the terminal is replaced or improved. However, the terminal project will allow larger, quieter aircraft to use the airport and thereby have a positive impact on noise levels which would otherwise result from such increased volume. The Authority prepared an Airport Noise Control and Land Use Compatibility Study (ANCLUC), a document entitled "A Discussion of the Potential Noise Impacts Associated With the New Terminal Complex at the Sarasota-Bradenton Airport," as well as a Part 150 Study. A Part 150 Study evaluates noise impacts from airport operations by estimating areas of noise exposure expressed as 65 Ldn, 70 Ldn and 75 Ldn. The Ldn measurement of noise represents the average noise level during an entire day, weighted so as to double the measured values of nighttime noise. Outdoor speech interference occurs within the 65 Ldn contour and residential uses within the 70 Ldn and 75 Ldn contours are strongly discouraged. Based on the original Part 150 Study, as well as revised analyses of current conditions, there are between 4,250 and 5,127 residents within the 65 Ldn contour, which is an area that is generally accepted to be incompatible with residential use. Based upon the Part 150 Study, as well as the additional analyses completed by the Authority, the Department determined that the ADA provides adequate mitigation for any project related noise impacts when conditioned with the recommendations of the Tampa Bay Regional Planning Council (TBRPC) made on August 12, 1985, agenda item 6B, Recommended Regional Conditions Numbered 2-A through I. TBRPC Condition 2 is hereby incorporated by reference in its entirety. It is also found to be reasonable and provides effective mitigation of project impact. With the approval of the Federal Aviation Administration (FAA), the Authority has already implemented a noise abatement turn for jet aircraft taking off from runway 31 which allows aircraft to depart over water by making a left turn to 270 degrees as soon as practicable after take off. In this way, noise sensitive residential areas in Manatee County are avoided to the maximum extent feasible, although different residential areas west of the airport, including Longboat Key, are now impacted. Nevertheless, this noise abatement turn has been effective in reducing the overall impact of airport noise. While the noise abatement turn clearly does not result from the terminal project which has yet to be completed, it is relevant to this proceeding since TBRPC conditioned its approval of this project upon the institution of such a noise abatement turn on runway 31. The Authority has already voluntarily implemented a noise compatibility program substantially incorporating the short-term and long-term elements in TBRPC Condition 2-A. Short-term elements include: noise abatement turn on runway 13, as well as runway 31; between 10:00 PM and 7:00 AM, required use of ground power units, elimination of the use of external public address system, and prohibition of non-emergency maintenance runups; formation of a noise abatement advisory committee; hiring of a noise abatement officer; noise monitoring and complaint response programs; plan review and evaluation; and public information. Long-term elements include, in addition to continuation of short-term elements: purchase of aviation easements or fee simple interests in properties involved in a joint stipulation; purchase of aviation easements over residential properties in the 75 Ldn contour which were purchased by present owners prior to January 1, 1980; and purchase of fee-simple interest in residential properties in the 75 Ldn contour which were purchased by present owners prior to January 1, 1980. An apparent difference between the TBRPC conditions and the voluntary noise compatibility program implemented by the Authority is the fact that the Authority has specifically conditioned the purchase of fee-simple interests on the availability of federal funds, which TBRPC has not. Additionally, TBRPC Conditions Numbered 2-B through I (relating to periodic reporting, coordination with adjacent local governments, reduction of areas within the 70 to 75 Ldn and 75+ Ldn contours, review and comment by the Authority on rezonings and land use amendments, noise exposure disclosure in all deeds and real estate transactions, ongoing noise monitoring program, compliance with Federal Aviation Regulation Part 36 Stage Two noise limits, and requiring a demonstration of substantial compliance with the foregoing before commencing Phase Two of the project) are not specifically included in the Authority's voluntary program. The FAA expressed concerns about the Authority's Part 150 Study because 1983 airport operations data were used for existing (1985) conditions without any showing that 1983 data were valid for 1985. In response to the FAA's concerns, the Authority compiled supplemental information and an additional analysis. Laddie E. Irion, who was accepted as an expert in airport noise compatibility planning and was formerly the noise abatement officer at the Sarasota-Bradenton Airport, prepared the additional analysis which concluded there was little, if any, direct relationship between this terminal project and increased airport noise levels. Manatee County's expert in aircraft noise analysis and abatement, Edward M. Baldwin, agreed with the FAA's concerns about the Part 150 Study, but also agreed with Irion's approach in addressing those concerns and his conclusion that the terminal project itself is unlikely to have any positive or negative impact on noise exposure. The airport, including the specific location of the terminal project, is not within any area of critical state concern. The State Comprehensive Plan is found at Chapter 187, Florida Statutes, and includes among its goals and policies "insur(ing) that existing port facilities and airports are being used to the maximum extent possible before encouraging the expansion or development of new port facilities and airports to support economic growth." The project is consistent with this policy of the State Comprehensive Plan since it has been established that the existing terminal is permanently being used to the maximum extent possible. In its denial of the ADA, Manatee County failed to make a finding as to whether the ADA is compatible with the State Comprehensive Plan. The project is compatible with the reports and recommendations of TBRPC and SWFRPC, the applicable regional planning councils, if conditions recommended by those councils are included in any development order-. The parties have stipulated to the transportation conditions proposed by TBRPC which were filed at the hearing on August 13, 1986, as amended, which are hereby incorporated by reference. The parties also stipulated to conditions concerning wastewater management, drainage, water supply, solid waste and other conditions which were recommended by TBRPC, SWFRPC or other parties hereto, and said stipulation is hereby incorporated by reference. The City of Sarasota and Sarasota County have both issued development orders approving this development of regional impact after having found that the project is consistent with their local comprehensive plans. The Department has concurred with this finding of consistency. Manatee County determined that the proposed terminal project is inconsistent with its local comprehensive plan and accordingly denied the ADA, as well as the application for special permit SP-85-80. The Manatee County Comprehensive Plan was adopted pursuant to the Local Government Comprehensive Planning Act, Chapter 163, Part II, Florida Statutes. Elements of the Plan include plan administration, future land use, aviation and related elements. The aviation element was cited by Manatee County in its denial of development approval, even though the future land use element allows the airport as a primary use in the South County Industrial Area. The goal of the aviation element of the Manatee County Comprehensive Plan is as follows: Develop airport facilities that adequately provide for the services and needs of passengers, commercial airlines, and general aviation users, and that are compatible with adjacent land uses, high environmental standards and public safety. This goal is supported by the following objectives: Facilities--Construct support facilities (including terminal and parking facilities) that are functional, convenient, aesthetic- ally pleasing, and adequate for all levels-- passenger airline and general aviation. Service--Strive to attract increased avail- ability and quality of commercial air service. The terminal project is consistent with the above-quoted goal and objectives of the Manatee County Comprehensive Plan aviation element. It will provide a modern terminal and parking facilities which will allow passengers to enplane and deplane out of the weather, and will be able to handle present and projected passenger traffic more safely and comfortably. The present terminal facility is undersized and inadequate. The project is also compatible with adjacent land uses since it is within the South County Industrial Area where the airport is a primary use. There appears to be an internal conflict within the aviation element of the Manatee Plan concerning the subject of airport relocation. Objective I-D provides: Relocation--Continue to investigate the needs and opportunities for either expansion or relocation of Sarasota-Bradenton Airport. (Emphasis Supplied.) Policy 11-1A concerning airport development provides: Airport relocation--Airport facilities designed to handle major air carriers should be relocated east of the existing site. The new site should be closely coordinated with other governmental activities, such as the possible joint use of the site with sewage effluent spray irrigation, to ensure long term service ability of the new facility. (Emphasis Supplied.) The plan administration element of the Manatee Plan addresses the interpretation of the Plan when provisions are in conflict, as above, and states: . . . where two or more such provisions are inconsistent with each other they shall not be given effect nor considered as part of the Plan in the situation which causes the inconsistency. However, rather than recognizing this conflicting direction regarding airport relocation in its Plan, and therefore disregarding the conflicting provisions in its consistency determination, Manatee County determined that policy 11-1A, airport relocation, takes precedence over all other policies in the Plan in that it is the most specific policy, and further determined that the terminal project was inconsistent with this policy since it would preclude relocation in the future. No evidence was presented, however, that would support a finding that this project would, in fact, preclude relocation in the future. Additionally, Manatee County's determination of inconsistency itself appears to be inconsistent with the plan administration element wherein the use of the word "should" is specifically interpreted to be discretionary and not mandatory. Therefore, by using the discretionary "should" in policy 11-1A, airport relocation is discretionary by the very terms of the Manatee Plan. Furthermore, the capital projects necessary for airport relocation, such as site acquisition and construction, are also couched with discretionary language in the Plan. No site for relocation of the airport east of the existing airport has been designated in the Manatee Plan and no sites of sufficient acreage are currently zoned for airport use. The Manatee County Planning Commission is the designated local planning agency which actually prepared the Manatee Plan, and is responsible for reviewing proposed developments for consistency with the Plan. The Planning Commission recommended to the Manatee Board of County Commissioners that the terminal project be found to be consistent with the Manatee Plan. The Chief of Comprehensive Planning for Manatee County, Carole Clark, presented three possible interpretations of the Plan to the County Commission as follows, but offered no recommendation as to which was the correct interpretation: Conflicting Direction. The Board may determine that Policy 11-1A Airport Reloca- tion is in direct conflict with the policies of the Land Use Element, which makes airports a primary use in the South County Industrial Area. In accordance with principle A-6, those two provisions would not be considered part of The Plan in this instance. The determination would then be based on the remaining policies of the Aviation Element, and the proposal could be consistent with The Manatee Plan. Long Term Direction. The Commission may determine the policy of airport relocation to be long term and not necessarily precluded by the proposed improvements. This interpre- tation reflects the Implementation section of the Aviation Element which places reloca- tion between 1985-2000. Aviation Precedence. Finally, the Commission may find that Policy 11-1A, Airports Relocation, takes precedence over all other policies in that it is the most specific policy. If it was determined that the proposed expansion would preclude relocation, the proposal would then be found to be inconsistent wit the Plan. As previously stated, the Manatee Board of County Commissioners determined that the "aviation precedence" interpretation was correct and accordingly denied both the ADA and special permit. In making its recommendation of consistency, the Planning Commission had found that the "long term direction" interpretation was correct. During her review of this matter, Carole Clark testified she did not consider provisions of the State Comprehensive Plan found at Section 187.201(17), Florida Statutes. The Manatee Planning Commission's recommendation of consistency is supported by the testimony of Blain Oliver, who was accepted as an expert in land use planning, and Mark Woerner, who was accepted as an expert in comprehensive planning. Based upon findings of fact 33 through 41, it is found that the terminal project as proposed herein is consistent with the Manatee Plan. Because the airport is in an area zoned M-1, which treats airports as a "conditional use," the Authority was required to obtain a "special permit" from Manatee County. Factors in reviewing an application for a special permit include a determination of consistency with the Manatee Plan, and also a determination of compatibility with surrounding land uses. A finding of consistency with the Plan has been made above. Although there are residential areas in close proximity to the airport, the airport is located in the South County Industrial Area in which airports are a primary use. The proposed project to replace and improve the terminal facilities is clearly compatible with the primary use within the South County Industrial Area--the airport. Conditions recommended by TBRPC would reasonably address the concerns of residents in surrounding neighborhoods.
Recommendation Based upon the foregoing, it is, RECOMMENDED: That the Florida Land and Water Adjudicatory Commission enter a Final Order granting the Application for Development Approval and special permit sought by the Sarasota-Manatee Airport Authority, thereby reversing prior decisions of the Board of County Commissioners of Manatee County, and condition such approval upon the Authority's compliance with the terms of the stipulations entered into by the parties regarding transportation, drainage, wastewater supply, solid waste and other conditions, as well as the Tampa Bay Regional Planning Council Conditions Numbered 2-A through I referenced in Finding of Fact 24. DONE AND ENTERED this 15th day of October 1986, at Tallahassee, Florida. 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 15th day of October 1986. APPENDIX Rulings on Proposed Findings of Fact filed on behalf of the Sarasota- Manatee Airport Authority: 1. Adopted in Finding of Fact 1. 2. Adopted in Finding of Fact 2. 3. Adopted in Finding of Fact 3. 4. Adopted in Finding of Fact 4. 5. Adopted in Finding of Fact 5. 6. Adopted in Finding of Fact 6. 7. Adopted in Finding of Fact 7. 8. Adopted in Finding of Fact 8. 9. Adopted in Finding of Fact 9. 10. Adopted in Finding of Fact 10, 11. 11. Adopted in Finding of Fact 12. 12. Adopted in Finding of Fact 13. 13. Adopted in Finding of Fact 14. 14. Adopted in Finding of Fact 15. 15. Adopted in Finding of Fact 16. 16. Adopted in Finding of Fact 17. 17. Adopted in Findings of Fact 21, 22, 24. 18. Adopted in Findings of Fact 21, 22, 24. 18. Adopted in Findings of Fact 21, 22, 24. 19. Adopted in Findings of Fact 21, 22, 24. 20. Adopted in Findings of Fact 21, 22, 24. 21. Adopted in Findings of Fact 23, 24, 28. 22. Adopted in Finding of Fact 26. 23. Adopted in Finding of Fact 24. 24. Adopted in Finding of Fact 28. 25. Adopted in Finding of Fact 28. 26. Adopted in Finding of Fact 28. 27. Adopted in Findings of Fact 25, 26. 28. Adopted in Finding of Fact 23. 29. Adopted in Finding of Fact 23. 30. Adopted in Finding of Fact 23. 31. Adopted in Finding of Fact 23. 32. Adopted in Findings of Fact 25, 26. 33. Adopted in Findings of Fact 25, 26. 34. Adopted in Findings of Fact 25, 26. Adopted in Findings of Fact 25, 26. Adopted in Findings of Fact 25, 26. Adopted in Finding of Fact 28. Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 30. Adopted in Finding of Fact 30. Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 29. Adopted in Finding of Fact 31. Adopted in Finding of Fact 31. Adopted in Finding of Fact 32. Adopted in Finding of Fact 32. Rejected as irrelevant and unnecessary. Adopted in Findings of Fact 33-42, but otherwise rejected as unnecessary, irrelevant and not based on competent substantial evidence. Adopted in Findings of Fact 33-42, but otherwise rejected as unnecessary, irrelevant and not based on competent substantial evidence. Adopted in Findings of Fact 33-42,,but otherwise rejected as unnecessary, irrelevant and not based on competent substantial evidence. Adopted in Findings of Fact 33-42, but otherwise rejected as unnecessary, irrelevant and not based on competent substantial evidence. Adopted in Findings of Fact 33-42, but otherwise rejected as unnecessary, irrelevant and not based on competent substantial evidence. Adopted in Findings of Fact 33-42, but otherwise rejected as unnecessary, irrelevant and not based on competent substantial evidence. Adopted in Findings of Fact 33-42, but otherwise rejected as unnecessary, irrelevant and not based on competent substantial evidence. Adopted in Findings of Fact 33-42, but otherwise rejected as unnecessary, irrelevant and not based on competent substantial evidence. Adopted in Findings of Fact 33-42, but otherwise rejected as unnecessary, irrelevant and not based on competent substantial evidence. Adopted in Findings of Fact 33-42, but otherwise rejected as unnecessary, irrelevant and not based on competent substantial evidence. Adopted in Findings of Fact 33-42, but otherwise rejected as unnecessary, irrelevant and not based on competent substantial evidence. Adopted in Findings of Fact 33-42, but otherwise rejected as unnecessary, irrelevant and not based on competent substantial evidence. Adopted in Findings of Fact 33-42, but otherwise rejected as unnecessary, irrelevant and not based on competent substantial evidence. Adopted in Findings of Fact 33-42, but otherwise rejected as unnecessary, irrelevant and not based on competent substantial evidence. Adopted in Findings of Fact 33-42, but otherwise rejected as unnecessary, irrelevant and not based on competent substantial evidence. Adopted in Findings of Fact 33-42, but otherwise rejected as unnecessary, irrelevant and not based on competent substantial evidence. Adopted in Findings of Fact 33-42, but otherwise rejected as unnecessary, irrelevant and not based on competent substantial evidence. Adopted in Findings of Fact 33-42, but otherwise rejected as unnecessary, irrelevant and not based on competent substantial evidence. Adopted in Findings of Fact 33-42, but otherwise rejected as unnecessary, irrelevant and not based on competent substantial evidence. Adopted in Finding of Fact 43. Rulings on Proposed Findings of Fact filed on behalf of Manatee County: Adopted in Finding of Fact 2. Adopted in Finding of Fact 5. Adopted in Findings of Fact 4, 6, 7. Adopted and rejected in part in Findings of Fact 21 and 22, but otherwise rejected as not based on competent substantial evidence. Adopted and rejected in part in Findings of Fact 21 and 22, but otherwise rejected as not based on competent substantial evidence. Adopted in Finding of Fact 23. Adopted in Finding of Fact 23. Adopted in part in Finding of Fact 24, but otherwise rejected as unnecessary. Adopted in part in Finding of Fact 28, but otherwise rejected as unnecessary. Rejected as irrelevant and not based on competent substantial evidence. Adopted in part in Finding of Fact 34. Adopted in part in Findings of Fact 33-42, but otherwise rejected as not based on competent substantial evidence. Adopted in part in Findings of Fact 33-42, but otherwise rejected as not based on competent substantial evidence. Adopted in part in Findings of Fact 33-42, but otherwise rejected as not based on competent substantial evidence. Adopted in part in Findings of Fact 33-42, but otherwise rejected as not based on competent substantial evidence. Adopted in part in Findings of Fact 33-42, but otherwise rejected as not based on competent substantial evidence. Adopted in Finding of Fact 43. Rejected as irrelevant and unnecessary based on Findings of Fact 24- 26. 26. 26. 26. 26. Rejected as irrelevant and unnecessary based on Findings of fact 24- Rejected as irrelevant and unnecessary based on Findings of Fact 24- Rejected as irrelevant and unnecessary based on Findings of Fact 24- Rejected as irrelevant and unnecessary based on Findings of Fact 24- Adopted in part in Finding of Fact 26. Rejected as cumulative, irrelevant and contrary to Finding of Fact 28. Rejected as irrelevant and unnecessary. Rejected as irrelevant and unnecessary. Ruling on proposed Finding of Fact filed on behalf of the Department of Community Affairs: Introductory material. Adopted in Findings of Fact 19, 20. Adopted in Finding of Fact 22. Conclusion of law. Conclusion of law. Conclusion of law. Conclusion of law. Conclusion of law. Conclusion of law. Conclusion of law. Conclusion of law. COPIES FURNISHED: Ross A. McVoy, Esquire Post Office Box 669 Tallahassee, Florida 32302 David Bruner, Esquire 983 1/2 North Collier Boulevard Marco Island, Florida 33937 Philip Parsons, Esquire Post Office Box 271 Tallahassee, Florida 32302 Charles D. Bailey, Jr., Esquire Post Office Box 3258 Sarasota, Florida 33578 Richard L. Smith, Esquire 2070 Ringling Boulevard Sarasota, Florida 33577 Silvia Alderman, Esquire 315 South Calhoun Street Suite 800 Tallahassee, Florida 32301 David Jordan, Esquire Department of Community Affairs 2571 Executive Center Circle, East Tallahassee, Florida 32399 Roger S. Tucker, Esquire 9455 Koger Boulevard Suite 209 St. Petersburg, Florida 33702 Luis Figuerdo, Esquire Governor's Legal Office The Capitol Tallahassee, Florida 32301 Glen W. Robertson, Esquire Florida Land and Water Adjudicatory Commission Office of the Governor The Capitol Tallahassee, Florida 32301
The Issue The issues presented for determination are whether Florida Housing Finance Corporation’s determination that the three applicant-parties were eligible for the allocation of low-income housing tax credits; and its intended decision to award such tax credits to Ocean Breeze East Apartments, LLC, are contrary to governing statutes, rules, or the solicitation specifications.1/
Findings Of Fact Parties and Process Florida Housing is a public corporation and, for the purposes of these proceedings, is an agency of the State of Florida. Pursuant to section 420.5099, Florida Statutes, Florida Housing is designated as the housing credit agency for Florida within the meaning of section 42(h)(7)(A) of the Internal Revenue Code and has the responsibility and authority to establish procedures for allocating and distributing low-income housing tax credits.3/ Florida Housing is authorized by law to allocate tax credits (and other funding) by means of requests for proposal or other forms of competitive solicitation. On October 6, 2017, Florida Housing published the RFA, starting the competitive application process being challenged in this proceeding. Completed applications were due December 28, 2017.4/ As explained below, all of the non-agency parties (HTG Heron, Channel Side, and Ocean Breeze) in this case applied for funding for a proposed development in Palm Beach County. According to the terms of the RFA, only one application for each county was to be funded. Moreover, the RFA’s stated goal was to fund one application wherein the applicant applied and qualified as a non-profit applicant. This non-profit goal did not apply within each of the six counties included in this RFA; one non-profit applicant in any of the six counties could satisfy the non-profit applicant goal for the entire RFA. No challenges were made to the terms or requirements of the RFA. HTG Heron is an applicant to the RFA, requesting an allocation of $1,541,751.00 in competitive tax credits. Its application, assigned number 2018-289C, was deemed eligible for consideration but was not selected for funding under the RFA. Channel Side is also an applicant to the RFA. It is requesting an allocation of $2,100,000.00 in competitive tax credits. Its application, assigned number 2018-278C, was deemed eligible for consideration but was not selected for funding under the RFA. Ocean Breeze is an applicant requesting an allocation of $2,070,000.00 in competitive tax credits. Its application, assigned number 2018-286C, was deemed eligible for consideration and was selected for funding under the RFA, subject to a credit underwriting review process. Florida Housing has adopted Florida Administrative Code Chapter 67-60 to govern the competitive solicitation process for several different programs, including the tax credit program. See § 420.507(48), Fla. Stat. The bid protest provisions of section 120.57(3) are adopted as part of the process for allocating tax credits, except that no bond is required. See Fla. Admin Code R. 67-60.009. A review committee was appointed to evaluate the applications and make recommendations to Florida Housing’s Board of Directors (the Board). Thirty-three applications for the RFA were received, processed, deemed eligible or ineligible, scored, and ranked, pursuant to the terms of the RFA; Florida Administrative Code Chapters 67-48 and 67-60; and applicable federal regulations. The review committee found 25 applications eligible and eight applications ineligible. Through the ranking and selection process outlined in the RFA, seven applications were recommended for funding, including Ocean Breeze. The review committee developed charts listing its eligibility and funding recommendations to be presented to the Board. On March 16, 2018, the Board met and considered the recommendations of the review committee for the RFA. The same day, the applicants to the RFA received notice of the Board’s determinations as to whether the applications were eligible or ineligible for consideration for funding, and which of the eligible applicants were selected for award of tax credits, subject to satisfactory completion of a credit underwriting process. Such notice was provided by the posting of two spreadsheets, one listing the “eligible” applications to the RFA and one identifying the applications which Florida Housing proposed to fund.5/ Relevant to this proceeding, Florida Housing announced its intention to award funding for Palm Beach County to Ocean Breeze, which received the maximum points available. Channel Side and HTG Heron were deemed eligible and scored the maximum number of points, but were not recommended for funding. Each applicant-party timely filed a Notice of Protest and Petition for Formal Administrative Proceedings. RFA The RFA contemplated a structure in which each applicant is scored on eligibility items and obtains points for other items. To determine if an application is eligible for funding, it must meet all of the requirements listed in section 5.A.1, of the RFA. The following eligibility terms and requirements are challenged in this proceeding: The evidence of control of the development site (site control) by Ocean Breeze and Channel Side; and The address of the development site provided by HTG Heron. For scoring the applications, the RFA allows up to a total of 20 points with the following point allocations: Submission of Principal Disclosure form stamped by Corporation as “Pre-Approved” (5 points); Development Experience Withdrawal Disincentive (5 points); and Local Government Contribution Points (5 points) or Local Government Area of Opportunity Points (10 points). As explained in pages 66-67 of the RFA, the first step in evaluating the applications is the sorting order. All eligible applications are ranked by first sorting all eligible applications from the highest score to the lowest score, with any scores that are tied separated in the following order: First, by the Application’s eligibility for the Proximity Funding Preference (which is outlined in Section Four A.5.e. of the RFA) with Applications that qualify for the preference listed above Applications that do not qualify for the preference; Next, by the Application’s eligibility for the Per Unit Construction Funding Preference which is outlined in Section Four A.11.e. of the RFA (with Applications that qualify for the preference listed above Applications that do not qualify for the preference); [sic] Next, by the Application’s eligibility for the Development Category Funding Preference which is outlined in Section Four A.4.b.(4) of the RFA (with Applications that qualify for the preference listed above Applications that do not qualify for the preference); [sic] Next, by the Application’s Leveraging Classification, applying the multipliers outlined in Item 3 of Exhibit C of the RFA (with Applications having the Classification of A listed above Applications having the Classification of B); [sic] Next, by the Application’s eligibility for the Florida Job Creation Funding Preference which is outlined in Item 4 of Exhibit C of the RFA (with Applications that qualify for the preference listed above Applications that do not qualify for the preference); and [sic] And finally, by lottery number, resulting in the lowest lottery number receiving preference. In other words, those competing for the RFA must first submit an application that meets all the eligibility criteria and does not have any significant omissions or errors before it is scored. After scoring, any tiebreakers are determined strictly by the luck of the draw. After applications are filed, but before they are scored, Florida Housing randomly assigned each a lottery number, and the highest scoring applicant with the lower number wins any ties, thus becoming the intended funding recipient. The notice of the intended award does not end the process, and the selection of an applicant for funding does not guarantee distribution of tax credits to that applicant. Florida Housing’s representative, Ms. Button, explained at the hearing: Q Okay. What happens once a preliminary agency action from Florida Housing becomes final agency action? A The awardees who are recommended or preliminarily approved for funding, once that becomes final, those applicants are then invited to credit underwriting by Florida Housing. * * * Q Can you provide some general information about credit underwriting? A Credit underwriting is essentially a de novo review of all the information that the applicant has provided in their application to proceed forward with the proposed development. Florida Housing retains their party underwriters who review that information and provide recommendations to Florida Housing. Similarly, the RFA provides that each selected awardee must complete a credit underwriting process before receiving funding or credits. The RFA states on page 68: Notwithstanding an award by the Board pursuant to his RFA, funding will be subject to a positive recommendation from the Credit Underwriter based on criteria outlined in the credit underwriting provisions in Rule Chapter 67-48, F.A.C. Rule 67-48.0072, in turn, provides in part: Credit underwriting is a de novo review of all information supplied, received or discovered during or after any competitive solicitation scoring and funding preference process, prior to the closing on funding, including the issuance of IRS Forms 8609 for Housing credits. The success of an Applicant in being selected for funding is not an indication that the Applicant will receive a positive recommendation from the Credit Underwriter or that the Development team’s experience, past performance or financial capacity is satisfactory. Thus, an application might fail in this de novo credit underwriting phase and never receive funding, even though it was “awarded” tax-credit funding as a result of a proceeding such as this one. In that event, page 67 of the RFA provides: 4. Returned Allocation Funding that becomes available after the Board takes action on the [Review] Committee’s recommendation(s), due to an Applicant withdrawing its Application, an Applicant declining its invitation to enter credit underwriting, or an Applicant’s inability to satisfy a requirement outlined in this RFA and/or Rule Chapter 67-48, F.A.C., will be distributed as approved by the Board. Therefore, if an intended applicant (such as Ocean Breeze), was nominally selected for funding at the end of the eligibility and scoring phase, but failed to garner a positive recommendation from the credit underwriting process, the next eligible applicants in the queue (such as HTG Heron and Channel Side) would be awarded the tax credits. As a result, in this consolidated proceeding, the objective of Petitioners is to displace any and all applicants in more favorable positions. Here, Petitioner Channel Side challenges the eligibility of both the Ocean Breeze and HTG Heron applications; and Petitioner HTG Heron challenges the eligibility of Ocean Breeze. Ocean Breeze, in turn, challenges both HTG Heron’s and Channel Side’s eligibility. The specific issues raised as to the three challenged applications will be discussed below. OCEAN BREEZE APPLICATION HTG Heron and Channel Side challenge Ocean Breeze’s eligibility based on the RFA requirements relating to site control. The parties have stipulated, and the undersigned finds, that site control must have been demonstrated as of the application deadline of December 28, 2017. The RFA provides three ways an applicant can demonstrate site control: (1) eligible contract, (2) deed or certificate of title, or (3) lease. Ocean Breeze utilized the first method to satisfy the site control requirement by submitting a document titled “Purchase and Development Agreement” (PDA) as Exhibit 8 to its Application. The PDA included two attachments: the “Legal Description” and a “Reverter Agreement.” Petitioners challenge the enforceability of the PDA on two apparent grounds: (1) it was not executed by the applicant6/; and (2) it was executed before the applicant was properly incorporated to do business within the State of Florida. The RFA, however, does not mention “enforceability” of a contract in its definition for “Eligible Contract.” The requirements for establishing site control though an eligible contract are found on page 30 through 31 of the RFA. Eligible Contract - For purposes of this RFA, an eligible contract is one that has a term that does not expire before June 30, 2018 or that contains extension options exercisable by the purchaser and conditioned solely upon payment of additional monies which, if exercised, would extend the term to a date that is not earlier than June 30, 2018; specifically states that the buyer’s remedy for default on the part of the seller includes or is specific performance; and the buyer MUST be the Applicant unless an assignment of the eligible contract which assigns all of the buyer’s rights, title and interests in the eligible contract to the Applicant, is provided. Any assignment must be signed by the assignor and the assignee. If the owner of the subject property is not a party to the eligible contract, all documents evidencing intermediate contracts, agreements, assignments, options, or conveyances of any kind between or among the owner, the Applicant, or other parties, must be provided, and, if a contract, must contain the following elements of an eligible contract: (a) have a term that does not expire before June 30, 2018 or contain extension options exercisable by the purchaser and conditioned solely upon payment of additional monies which, if exercised, would extend the term to a date that is not earlier than June 30, 2018, and (b) specifically state that the buyer’s remedy for default on the part of the seller includes or is specific performance. The initial paragraph of the PDA identifies the parties to the PDA as “Boyton Beach Community Redevelopment Agency,” as the “Seller,” and “Ocean Breeze East Apartments, LLC” as the “Purchaser.” Paragraph 14 of the PDA designates the following for purposes of notices: If to Purchaser: Ocean Breeze East Apartments, LLC Attn: Lewis Swezy 7735 NW 146 Street, Suite 306 Miami Lakes, FL 33016 Under the signature block, however, the PDA states it was executed on behalf of the “Purchaser” by “OCEAN BREEZE APARTMENTS LLC By Ocean Breeze East GP LLC” and signed by Lewis Swezy, “Title: Authorized Member” on December 8, 2017. “Ocean Breeze East, GP, LLC” does not exist and never has in Florida. The parties admit that this entity was not in existence on December 8, 2017, and was never subsequently formed. Ocean Breeze admits the identification of “Ocean Breeze East, GP, LLC” was in error. The PDA was executed on behalf of the “Seller” by BBCRA and signed by Steven B. Grant, “Title: Chair” on December 15, 2017. Paragraph 4 of the PDA indicates that its effective date is the date when the last party signed the PDA; in this case being the date the BBCRA executed the document--December 15, 2017. The Reverter Agreement is executed by the “Purchaser” “Ocean Breeze East Apartments, LLC” and signed by Lewis Swezy, “Title: Manager of Manager,” on December 12, 2017. The Reverter Agreement is executed by the “Seller,” BBCRA, and signed by Steven B. Grant, “Title: Chairman” on December 15, 2017. Mr. Swezy testified Ocean Breeze complied with all the terms of the PDA, including submitting an initial $25,000 deposit within two days of full execution of the PDA and a second deposit within 30 days. The Articles of Organization for Ocean Breeze East Apartments, LLC were filed on December 19, 2017, and effective December 14, 2017. Rachael Grice, Florida Housing Multifamily Programs Manager, scored the site control portion for this RFA based on the information in the application. Mrs. Grice found that Ocean Breeze met the RFA requirements for site control. It is unnecessary, and beyond the scope of the undersigned’s jurisdiction, to make a factual or legal determination as to the enforceability of the PDA. The RFA does not mention enforceability or validity as requirements for an “Eligible Contract” for site control purposes. There is no dispute that on its face, the PDA with the Reverter Agreement satisfied the RFA’s requirements for an “Eligible Contract” listed on page 30 and 31. In fact, as of the date of the application deadline the following was true: Ocean Breeze East Apartments, LLC, was listed as the applicant for the RFA. Ocean Breeze East Apartments, LLC, was listed as the “Purchaser” on the PDA. Mr. Swezy had signature authority to bind Ocean Breeze and was listed on the Ocean Breeze application as the “Authorized Representative.” Ocean Breeze East Apartments, LLC, and Mr. Swezy were identified in the notice provision in the PDA. The Reverter Agreement, which was signed after the PDA, correctly identified the applicant entity as Ocean Breeze East Apartments, LLC. Effective December 14, 2017, Ocean Breeze was incorporated. The PDA was fully executed on December 15, 2017. HTG Heron and Channel Side have not established that the PDA was fatally flawed or that Florida Housing erred in accepting the PDA as an “eligible contract” satisfying the RFA’s site control requirement. Even if the PDA contained errors by listing “Ocean Breeze East GP, LLC” in the signature block or was prematurely signed before Ocean Breeze was effectively incorporated, the evidence at the hearing established that it was a minor irregularity waivable by Florida Housing, and that Florida Housing would have waived any such errors. If the PDA is ultimately determined to be unenforceable and site control is not established at the credit underwriting stage, Petitioners would be next in line to be selected to receive the tax credits under the terms of the RFA. The preponderance of the evidence established that Ocean Breeze’s application is eligible for funding, it received the proper scoring, and should be the intended award for Palm Beach County. HTG HERON APPLICATION Channel Side and Ocean Breeze challenge the eligibility of the HTG Heron application because they claim it fails to satisfy the RFA eligibility requirement to provide a correct address of the proposed development site. Page 18 of the RFA requires in relevant part: Indicate (1) the address number, street name, and name of city, and/or (2) the street name, closest designated intersection, and either name of city or unincorporated area of county. Ms. Button testified the purpose of the address requirement in the RFA is to allow parties, including Florida Housing, to know where the proposed development will be built and to ensure the property has access to utility and other services. In that vein, the RFA does not require the street identified in an application to be a publicly maintained street. In its application, HTG Heron provided the address of the proposed development as “W 17th Ct., W 17th Ct. and North Congress Ave., Riviera Beach,” along with latitudinal and longitudinal coordinates of the development location. Ryan McKinless, Multifamily Programs Senior Analyst for Florida Housing, scored the development address section for this RFA. Mr. McKinless found that HTG Heron met the requirements in the RFA for providing an address of the proposed development. Here, Channel Side and Ocean Breeze argue Florida Housing erred in accepting the “W. 17th Ct.” address provided by HTG Heron because the address does not exist. They point to the site sketch submitted by HTG Heron in support of its application which references a “W. 17th Street” (not “W. 17th Ct.”) and has “W. 17th Street” intersecting with “Congress Avenue Extension,” (not “N. Congress Ave.”). In support of this position that “W. 17th Ct.” does not exist, Ocean Breeze and Channel Side also rely on a 1975 plat and a 1999 City of Rivera Beach Ordinance. The sketches attached to HTG Heron’s application each contain the disclaimer “NOT A SURVEY.” Although the sketches contain a reference to an abandonment relating to “W. 17th Ct.,” the 1999 Ordinance describing the abandonment relied on by Channel Side and Ocean Breeze was not submitted to Florida Housing. Regardless, this plat and ordinance information was not required by the RFA nor was it considered by Florida Housing in determining whether to accept the address submitted by HTG Heron for eligibility determination purposes. There was no evidence at the hearing that the “W. 17th Court” address misled Florida Housing (or anyone else) or caused confusion as to the location of HTG Heron’s proposed development. To the contrary, other information in the application supports accepting the provided address. The “Local Government Verification of Status of Site Plan Approval for Multifamily Developments” form executed by the City Manager of Riviera Beach affirms the “W. 17th Ct.” address. The “Local Government Verification that Development is Consistent with Zoning and Land Use Regulations” form executed by the City Manager of Riviera Beach affirms the “W. 17th Ct.” address. The “Verification of Availability of Infrastructure- Electricity” form executed by an Associate Engineer from Florida Power and Light affirms the “W. 17th Ct.” address. The “Verification of Availability of Infrastructure” form for water and sewer services executed by a Utilities Engineer from City of Riviera Beach affirms the “W. 17th Ct.” address. The “Verification of Availability of Infrastructure- Roads” form executed by a City Engineer from the City of Riviera Beach affirms the “W. 17th Ct.” address. The “Local Government Verification of Contribution- Grant” form executed by the Interim City Manager of Riviera Beach affirms the “W. 17th Ct.” address. The acting director of the City of Riviera Beach, Department of Community Development confirms by letter that the property at the “2003 W. 17th Court (adjacent to North Congress Avenue)” address is located with a “Qualified Census Tract for 2017 and 2018” and attaches a diagram of that tract. Documentation from the Palm Beach County Property Appraiser’s website lists the address location as “2003 W. 17th Ct.” Given that the purpose of providing an address was fulfilled and there was no ambiguity as to the actual location of the HTG Heron’s development site, Channel Side and Ocean Breeze failed to prove that Florida Housing erred in accepting HTG Heron’s address for the purposes of eligibility. At the hearing, HTG Heron also submitted a certified copy of a 2017 map from the Palm Beach County Property Appraiser’s Office for range 43, township 42, which includes the area of the proposed development in HTG Heron’s application, and indicates there is a “W. 17th Ct.” that intersects with “N. Congress Avenue.” There was a preponderance of evidence establishing HTG Heron’s designation in its application of “W 17th Ct., W 17th Ct. and North Congress Ave., Riviera Beach” was not an error, and that HTG Heron’s application is eligible for funding. CHANNEL SIDE APPLICATION7/ To satisfy the Site Control requirements Channel Side submitted a Purchase and Sale Agreement that lists among the sellers an entity named “MWCP, Inc., f/k/a Blueprint Properties, Inc., a Delaware corporation whose post office address is 248 Columbia Turnpike Florham Park, NJ (‘Blueprint’)” in the initial paragraph. MWCP, Inc. (MWCP) did not exist in Florida when the Purchase and Sale Agreement was executed. The parties stipulated that the reference in the Channel Side site control documents to MWCP was erroneous and that the owner of the property for the Channel Side’s proposed development as of the application deadline was a Delaware corporation known as Blueprint Properties, Inc., which has never operated as, or been corporately related to, MWCP. Rachel Grice, Florida Housing Multifamily Programs Manager, scored the Site control portion of this RFA based on the information in the Application. Mrs. Grice found that Channel Side met the RFA requirements for Site control. The RFA does not require the listing of related names of any corporations other than the applicant or developer. Thus, the error in the Purchase and Sale Agreement does not seem to affect Channel Side’s satisfaction of any requirement of the RFA. The error is insignificant and immaterial. There was no evidence presented at the hearing that Channel Side received a competitive advantage by identifying “MWCP, Inc. f/k/a Blueprint Properties, Inc.” instead of simply “Blueprint Properties” as the seller. The slight error conferred no competitive advantage on Channel Side; its application received no more points than it was entitled to by reason of the mistake. Ms. Button reasonably testified that had Florida Housing known about the mistaken listing of MWCP as the seller, it would have waived the error as a minor irregularity. The applicant-parties failed to prove that Channel Side’s application reflecting the “wrong corporate entity” as the seller was an error affecting eligibility of Channel Side’s application, or that Florida Housing erred in accepting the Purchase and Sale Agreement as proof of site control. The mistake was, at worst, a minor, inconsequential error that was waivable. Based on the preponderance of the evidence, Channel Side’s application is eligible for funding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Florida Housing Finance Corporation, enter a final order consistent with its initial decisions: (1) finding the applications of Ocean Breeze, HTG Heron, and Channel Side eligible for funding; (2) awarding the RFA Palm Beach County funding for the Ocean Breeze proposed development; and (3) dismissing the formal written protests of HTG Heron and Channel Side. DONE AND ENTERED this 29th day of June, 2018, in Tallahassee, Leon County, Florida. S HETAL DESAI Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 2018.
Findings Of Fact James V. Hodnett, Jr., was registered as a real estate broker in 1974 and has been continually so registered since that time (Exhibit 7). Sea Pines Realty, Inc.'s Articles of Incorporation were filed December 13, 1977, and it was authorized to operate as a Florida corporation on December 15, 1977. Respondent, Sea Pines Realty, Inc., applied for registration as a corporate real estate broker on January 14, 1978, with James V. Hodnett, Jr., as president and active firm member. Request for initial certification for corporation was forwarded to the Florida Real Estate Commission on January 20, 1978, and license was issued to Sea Pines Realty, Inc., as a corporate broker effective February 9, 1978 (Exhibit 6). Of those nine witnesses who purchased homes or lots in Sea Pines, only one of these witnesses, William Barnes, purchased a lot (or home) in Sea Pines later than 1977. Mr. Barnes purchased his home in 1979 from the previous owner and neither of Respondents was involved in or had any influence on that transaction. Mr. Miller testified on direct examination that he had searched the public records and learned that Hodnett had owned the land abutting Sea Pines to the north which was sold to Belcher mines, that Belcher mines set off explosives to blast rock in those mines, and that his house was damaged by those explosives. Upon cross-examination, Mr. Miller admitted that he could not say for certain that the property had been sold to Belcher by James Hodnett, Jr., or James Hodnett, Sr., and that it could have been sold by the latter. In addition to Miller, who purchased his property in 1976; Wurst, who purchased in 1971; Morgal, who purchased in 1977; Farrelly, who purchased in 1971; Leggiere, who purchased in 1976; Senderling, who purchased in 1976; Anderson, who purchased in 1969; and Campbell, who purchased in 1971, all testified that they purchased their properties through, and had contact with, Jean Humphries, who was the salesperson for the developer of this property. Representations regarding the plans to build a golf course, to install underground utility lines, and other representations constituting the gravamen of these charges were all made by Ms. Humphries and none of these representations was made by Hodnett.
Findings Of Fact By application dated May 10, 1987, and subscribed to on December 18, 1987, the Petitioner applied to the Department for approval and licensing of a seaplane airport site for his own private usage (P-2) . The Petitioner is appropriately licensed as a seaplane pilot. The location of the proposed airport is Pate Lake, located near Caryville, in Washington County, Florida. Pate Lake is approximately one mile by three-quarters of one mile in size, large enough to accommodate the Petitioner's proposed airport. The Petitioner's seaplane is currently and would remain based on the west side of the lake, where the Petitioner owns a parcel of land. The Petitioner has utilized Pate Lake as a base of operation for the seaplane on an irregular basis for several years. The seaplane is a single-engine Balanca Citaba, similar in size to a Piper Cub. The plane carries a maximum of two persons, including the pilot. The engine produces 150 horsepower and has a muffled exhaust. There was no reliable evidence which would indicate the decibel level or amount of noise that is generated by the seaplane on takeoff, however the noise at landing is minimal because landings are accomplished with the engine thrust significantly reduced. Pate Lake is relatively remote with limited population, however the population residing near the water is generally concentrated on the western side of the lake. The lake is used primarily for fishing and other recreational activities. A public boat ramp is also located on the west side of Pate Lake, approximately 400 to 500 feet from the Petitioner's property, according to a map prepared by the Department and introduced by the Petitioner (P-12). The number and type of recreational users of the lake depend on the weather and time of year, with an estimated 15 to 20 fishing boats on the lake simultaneously when conditions warrant. In December, 1987, an on-site inspection of the proposed airport area was performed by Larry Parker, an aviation specialist with the Department. Parker determined that the site was feasible for use as proposed by the Petitioner and "can meet the requirements set forth in Airport Licensing and Zoning Rule Chapter 14-60" (P-4). By letter dated December 30, 1987, the administrator for the Washington County Commission advised the Department that there were no restrictions which would prohibit the establishment of the seaplane base (P-5). There is no relevant zoning ordinance applicable to Washington County. By letter dated March 2, 1988, the Petitioner was advised by the Federal Aviation Administration that the proposed airport would "not adversely affect the safe and efficient use of airspace by aircraft" provided that operations were limited to VFR (visual flight rules) weather conditions, and that the airport were limited to private use. The F.A.A. specifically "did not consider the interaction of sea plane operations with surface craft traffic..." (P-6). On May 2, 1988, the department issued a "Notice of Intent" to approve the airport and issue the license (P-3). A public meeting was subsequently held on June 8, 1988, at which time an unknown number of persons apparently objected to the Department's intended approval of the license application. On June 16, 1988, a resolution was adopted by the Washington County Board of County Commissioners at which time the Board expressed opposition "to the permitting of a Seaplane operation on Pate Pond" (P-8). The resolution clearly indicates that the Board acted, at least in part, in the belief that "a commercial Seaplane operation is contemplated on the lake..." and that property owners in the area objected to the proposal. By memo dated July 11, 1988, Larry Parker, the district aviation specialist for the Department forwarded materials from the public meeting to his supervisor, Bobby Grice (P-9). At that time, Parker reiterated his opinion that the proposed airport site met "the safety standards as outlined in Rule 14-60", and that the Petitioner could operate in a safe manner from Pate Lake. By letter dated July, 27, 1988, the Petitioner received notice from the Department that it intended to deny his application for approval of his Pate Lake seaplane base (P-10). The Department stated that the denial was based on the County Commission resolution of June 16th, which "the department accepts...as equivalent to zoning refusal by the Washington County Commission." Further the Department cited comments "submitted by many of the nearby landowners and they are opposed to a seaplane base on Pate Lake on the basis of noise and safety." The Department's action followed the recommendation of Mr. Grice to deny the application. Mr. Grice based his recommendation on safety concerns related to utilization of the recreational lake as a seaplane base. Mr. Grice has visited the Pate Lake area, but has not viewed the Petitioner's seaplane in operation. At the administrative hearing the Department presented the testimony of several persons who reside on or near Pate Lake. The property owners had on infrequent occasions heard or seen a seaplane, allegedly the Petitioner's, flying over their homes at an altitude they believed to be unreasonably low or in a manner which caused what they felt was excessive noise. 1/ No one recalled more than two such incidents over the several years that the Petitioner has utilized the lake as a seaplane base. Other complaints were directed towards the maintenance of the Petitioner's property, which was identified by one witness as an "eyesore". Concerns were voiced related to the witnesses fear of property value depreciation, but there were no facts to support the theoretical depreciation. One witness, a helicopter instruction pilot who visits the area on occasion, observed the seaplane, approximately seven or eight months prior to the hearing, take off and land twice on the same day. The witness testified that the pilot on both occasions flew at an excessively low altitude over the houses on the west side of the lake. The witness estimated the altitude over the houses to be less than 500 feet, an altitude which he believed was a "major judgement error" of the pilot, because an emergency maneuver at that altitude, if necessary, would have been difficult to accomplish. However, the witness, who has no experience with seaplane operations, did not register the incident with any regulatory agency, although he believed it to be a violation of minimum safe altitude regulations. He has not otherwise viewed the seaplane in operation. One witness, a seasonal resident of the lake area who utilizes the lake for fishing, recalled an incident in January or February, 1988, where the Petitioner's plane landed on the lake while the witness was fishing from a small boat in the same vicinity as where the Petitioner was attempting to land. The witness had not heard the plane's approach due to the lack of engine noise until the plane began landing. Although uninjured, he was fearful for his safety during the incident. The witness explained that he was concerned about the personal safety of boaters in the water during the times the seaplane was landing, because the noise level is minimal, and boaters may not be aware of the aircraft's approach. There was no explanation or response offered by the Petitioner to the allegations of the Department's witnesses other than assertions that a seaplane could be operated in such a manner as to prevent low flight over residences and minimize risk to users of the lake. Although there was testimony related to lakes, similar or smaller than Pate Lake, which are allegedly licensed as private seaplane airports, the testimony did not provide evidence sufficient to provide for an accurate comparison between other lakes and Pate Lake.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the Petitioner's application for licensure of Pate Lake as a seaplane base be DENIED. DONE and ORDERED this 20th day of December, 1988, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 20th day of December, 1988.
