Findings Of Fact Ramchandra Jakhotia and Rashmi Jakhotia, his wife, acquired the King Cole Motel at 401 East Shore Drive, Clearwater, Florida in 1983 and have owned the property since that time. At the time of acquisition and for some time prior thereto the property included a commercial marina with 22 slips. In 1985 the City of Clearwater revised its Development Code effective October 13, 1985 and, incident thereto, effective July 7, 1988, enacted Section 114.05, Live-Aboard Vessels as Ordinance 4597, Clearwater City Code. That enactment provided, in part, that: Prohibited; exceptions: It shall be unlawful for any person to moor any live-aboard vessel at any location within or upon the navigable waters in the City for any period of time in excess of seventy-two (72) hours, except as follows: At a marina facility for which conditional use approval has been obtained, or a marina facility in existence as of October 13, 1985 for which conditional use approval would otherwise be required;... In January 1986 a survey was taken of all marinas within the City of Clearwater to determine the number of live aboard vessels coming within the purview of the revised Development Code. At this survey eight live aboard vessels were occupying berths at the King Cole Motel marina and this was the number determined to be grandfathered for which no conditional use approval would be required. In 1988 King Cole Motel applied for conditional authorization to utilize 14 additional berths for live aboard vessels. This conditional use was approved subject to the applicant installing a pump-out facility and meeting the parking requirements. Although the parking requirements for a commercial marina, i.e., 0.5 parking space per slip, is the same as the parking requirement at marinas for live aboard vessels, the latter generally place a greater demand on parking spaces than does non-live aboard vessels. To change the approved use from commercial marina without live aboards to live aboards is a change in the use and requires conditional use approval. Before conditional use approval can be granted the applicant must comply with all code requirements, such as required parking spaces, at the time of the change in use. At the time Appellant acquired the King Cole Motel the 22 commercial slips were grandfathered as an authorized use without any parking being provided. Accordingly, as a 22-slip commercial marina Appellant did not have to provide parking. When the eight slips used for live aboards were counted in 1986 they too were grandfathered in without the need for parking spaces. However, when Appellant applied in 1988 for authorization to use 14 other slips for live aboard vessels, the code required the applicant to provide seven parking spaces. To his credit Appellant obtained the use of seven parking spaces down the road from the marina but those spaces were not contiguous to Appellants' marina as required by the code. Therefore, Appellants' use of the additional slips for live aboards did not meet the parking requirement in his conditional use approval. In 1992 Appellant applied for a variance of the seven parking spaces required to allow the use of these additional slips by live aboard vessels. This hearing was held before the Development Code Adjustment Board on February 11, 1993 and it is from the denial of this variance that this appeal is taken. The Board denied the variance requested because the Appellant failed to demonstrate that the standards established by Section 45.24 Land Development Code were met. In these proceedings Appellant presented no additional evidence to support the variances requested than was submitted to the Board.
The Issue The issues are whether Petitioner's application for a Notice of Proposed Change to its Development of Regional Impact constitutes a substantial deviation from the criteria in Section 380.06(19)(b)1.-15., Florida Statutes, and whether the proposed change is consistent with Bay County's Comprehensive Plan.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background Petitioner, Bay Point Club, Inc. (Petitioner), is the owner of Parcels F, 9, 10, and 12 located within the Bay Point Yacht and Country Club Resort Development of Regional Impact (Bay Point DRI) in Panama City, Florida. The Bay Point DRI was approved by Respondent, Bay County (County), on July 22, 1986, and authorized the development of 2,161 residential units, 200 hotel units, 123 marina slips, and recreational facilities on approximately 946 acres. The County is responsible for issuing development orders for projects that are to undergo development of regional impact review, including amendments to development orders of previously determined DRIs, in conformity with the requirements of Section 380.06, Florida Statutes. When the original Development Order was issued in 1986, Bay Point Yacht & Country Club was the sole developer of the Bay Point DRI. Since that time, the ownership and control of the properties within the Bay Point DRI has changed, and there are now multiple owners and developers of the 36 separate development areas or parcels included within the Bay Point DRI, including Petitioner, who owns the above four parcels. The Bay Point DRI was approved by the County prior to the adoption of its Comprehensive Plan (the Plan). When the first Plan was adopted in 1991, the County recognized and incorporated the Bay Point DRI through the adoption of an overlay to the Future Land Use Map (FLUM) which delineates the boundaries of the property. As stated in Future Land Use Element Policy 3.4.5, the overlay was adopted to ensure the consistency and compatibility of the Bay Point DRI with the County's FLUM. Parcels F and 12 were designated as "Seasonal/Resort" and Parcels 9 and 10 were designated as "Residential" on the FLUM. These designations remain in effect as of the date of the final hearing. A Seasonal/Resort classification allows a broad range of uses such as beach houses, multifamily housing, condominiums, hotels, lodges, restaurants, and other similar uses, while a Residential classification permits those land uses typically associated with residential occupancy. The Bay Point DRI has been amended 15 times, which amendments cumulatively reduced by 145 the total number of residential units. None of these amendments constituted a substantial deviation from the approval given in the original Development Order, and the County has never required a corresponding amendment to its Plan, FLUM, or DRI overlay as a condition for approval for any of these changes to the DRI. In July 1993, PFP One, Inc., Petitioner's parent company, entered into a Purchase and Sale Agreement with the Federal Deposit Insurance Corporation, as manager of the FSLIC Resolution Trust Fund, to purchase Parcels F (a waterfront lot adjacent to the Bay Point Marina), 10, and 9 for $235,000. At that time, Parcels 9 and 10 were vacant, and they remain vacant today. A private membership tennis facility was operating on Parcel F through a lease agreement Petitioner inherited as a part of the purchase. These tennis facilities were closed on April 1, 2000, due to a lack of membership support. Parcel 12 was purchased by PFP One, Inc. in 1994. It contained a private clubhouse facility which had once been operational prior to the approval of the DRI, but was closed at the time of the sale. The clubhouse was remodeled by Petitioner shortly after the Parcel was purchased and reopened the same year. Due to a lack of membership support, however, the clubhouse was closed in 1996. The single-family residential portion of Bay Point begins within a few hundred feet west of the above Parcels. The Development Order currently provides the following descriptions for Parcels F, 12, 10, and 9: Parcel F: Located adjacent to the Bay Point Clubhouse, this 4.8 acre site currently supports the Bay Point Tennis Center. As a part of Bay Point's long term plan, the Tennis Center is scheduled to be moved to Area 9 in 1986. In 1987, a 70-unit condominium project designated as Port Towers is planned to be built on this waterfront site. [A] total of 97,000-sq. ft. of heated and cooled space are planned. Included will be a pool and recreation center. Building height would be restricted to not more than five stories with a majority of the project being of the two and three story height. Four, 2100 sq. ft. penthouse units, eight (8) 1,800 sq. ft. three-bedroom units, forty (40), 1400 sq. ft. two-bedroom units and eighteen (18), 1000 sq. ft. one-bedroom units are planned. There would be no restrictions of resort rental use, although it is assumed that, like Marina Club Village, the vast majority of these units will be primary and secondary homes because of pricing. Restrictive covenants for this project would be developed similar to those currently in force at Bay Point. Parcel 12: A 4-acre main clubhouse site, which is adjacent to the swimming pool, snack bar, health club and real estate facilities, is in the vested area and was substantially completed prior to July 1, 1973. Parcel 10: This one acre site is the planned location of the new Sport Center Clubhouse which will serve Bay Point's member golf facilities and the resort's tennis and health facilities. Included in the 14,000 square ft. Clubhouse will be a 90-seat restaurant and snack bar area, a health club, exercise and massage rooms, men and women's locker rooms, offices for the Director of Tennis and Golf Professional and a classroom. Additional space will house the club's sports retail center which sells both hard and soft goods associated with golf, tennis and physical exercise. Parcel 9: This 6 acre site has been set aside as the future location of the Bay Point Tennis Center. When completed, it will consist of up to 14 tennis courts, one of which will be the center court with stadium stands. The original description of Parcels F and 12 reflects that the acreage of the two sites combined is 8.83 acres. A survey completed just before the NOPC was submitted determined that the combined acreage of the two parcels was actually 9.67 acres. Petitioner has stipulated that in the event the smaller acreage number is correct, the density that will be developed on the property will be in conformity with the limitations imposed by the smaller acreage. On May 14, 2001, Petitioner filed with the County a Notification of Proposed Change to a Previously-Approved Development of Regional Impact (NOPC) under Section 380.06(19), Florida Statutes. Copies were also provided to the Department of Community Affairs (DCA) and the West Florida Regional Planning Council (Council). Under the NOPC, Petitioner proposes to change the Development Order as to Parcels F and 12 as follows: The proposed project will be a 136-unit condominium project with approximately 58 units on Parcel F and 78 units on Parcel 12. The number of units on both parcels will increase from the current 70 units authorized on Parcel F to 136 units on Parcels F and 12 combined, a cumulative increase of 66 units. Three concrete structures are planned. The center building, which is the farthest from any existing development, is 11 stories in height with a step increase to 12 stories. The two exterior buildings are six stories in height with step increases to ten stories. All improvements to the project will be built by year end 2004, which is the current build-out date for the Bay Point DRI, as amended. The existing tennis courts located on Parcel F will be reduced to four hard surface courts with separate restroom facilities. The residential units will consist of 1, 2, 3 and 4 bedroom condominiums, approximately 900 to 2,400 sq. ft. in size. Thus, the proposed change in Parcels F and 12 will increase the number of condominium units from 70 to 136, change the height limitation from 5 stories to 12 stories, and eliminate the existing tennis facility. In addition, Petitioner proposes to eliminate the swimming pool and clubhouse now located on Parcel 12 and replace them with condominiums. The NOPC also proposes to change the Development Order as to Parcels 9 and 10 in the following manner: The designations for Parcels 9 and 10 will be changed from "Tennis Complex" and "Sports Center/Clubhouse," respectively, to Recreation. These changes are sought because of the historical absence of community or public support for the existing private tennis and clubhouse facilities presently located on Parcels F and 12. Funded through annual memberships by residents of Bay Point and the public, support for these facilities has been insufficient to economically sustain them and justify their continued operation. Consequently, due to lack of membership support, the Clubhouse on Parcel 12 was closed in 1996. For the same reason, the tennis courts on Parcel F were closed April 1, 2000. Changing the designation on Parcels 9 and 10, from Tennis Complex and Clubhouse to Recreation[,] will afford the Applicant with the flexibility needed to develop new or expanded active and/or passive recreational opportunities which the residents of Bay Point are willing and able to support, and which are economically feasible. In no event, however, will the Applicant develop, or allow others to develop, recreational facilities on Parcel 9 or Parcel 10 which exceed the intensity standards authorized for the development of these properties by the original Bay Point DRI. Under these proposed changes, Parcels 9 and 10, which are predominately wetlands, will remain undeveloped and constitute a passive recreation area. The changes proposed in the NOPC will require corresponding changes to the uses originally approved for Parcels F, 12, 10, and 9 in the Bay Point DRI Development Order, including changes to Map H, the Master Development Plan Map. The changes proposed by the NOPC for the DRI Development Order, including the changes to Map H, will not require a corresponding amendment to the underlying land use designations for Parcels F and 12 (Seasonal/Resort) and Parcels 9 and 10 (Residential). The NOPC was reviewed by the Council for conformity with the requirements of Section 380.06(19)(f)4., Florida Statutes. On June 11, 2001, the Council advised the County that the changes proposed for Parcels F, 9, 10, and 12 did not appear to constitute a substantial change from the previously- approved Bay Point DRI. The DCA did not submit a written objection to the proposed NOPC. On August 7 and September 7, 2001, the County held quasi-judicial public hearings on the NOPC. At the latter meeting, the County denied the NOPC on the basis of a 2-2 tie vote regarding the question of whether the proposal constituted a substantial deviation. The County did not make any determination with respect to the question of whether the NOPC was consistent with its Comprehensive Plan. This finding was confirmed in a letter from the County Attorney's Office dated September 7, 2001, and transmitted to Petitioner on September 11, 2001. On October 11, 2001, Petitioner filed its Petition to Appeal DRI Development Order with the Florida Land and Water Adjudicatory Commission (Commission). On November 7, 2001, Intervenors, K. Earl Durden, David Allen Spencer, Harry B. Sipple, III, Unal Tutak, David W. Hill, Lucy N. Hilton, and William F. Fusselman, who all own property within the Bay Point DRI and have standing to participate, filed a Petition to Intervene. On November 8, 2001, Intervenor, Bay Point Community Association, Inc., which is the homeowners' association for the approximately 1,300 residences within the Bay Point DRI and likewise has standing to participate, filed its Petition to Intervene. These Petitions were granted by the Commission on December 19, 2001. Although the Petitions to Intervene contended that the NOPC constituted a substantial deviation requiring further DRI review by the County, that issue has been abandoned. Remaining at issue is the contention that the NOPC is inconsistent with the County's Comprehensive Plan (Plan) by generally failing to protect residential property values, promote viable neighborhoods, and maintain the community character in residential areas, as required by various Plan Objectives and Policies. Intervenors also contend that the NOPC lacks a needed stormwater plan. In more simple terms, however, Intervenors object to any high- rise development in an area surrounded by single-family residential homes and in a community (Bay Point) where no other buildings exceed seven stories in height. The characteristics of the community Bay Point is a unique, residential resort development on St. Andrews Bay in Panama City, Florida. A large portion of the land lying north of Bay Point is owned by the United States Navy; thus, Bay Point is somewhat isolated from the unplanned developments which occur in other inland areas, as well as along the Gulf of Mexico. Residential and commercial development commenced in Bay Point in 1971. To date, no high-rise buildings have been constructed in the community. Most structures are one or two stories in height, and only four buildings in Bay Point exceed two stories: the Bay Town commercial and condominium development (three stories); the Lagoon Towers condominium with sixty-three units (seven stories), which is the tallest building in Bay Point; the Marriott Legends Edge timeshare with twenty-eight units (six stories); and the Marriott Hotel (five stories). The three tallest buildings are in the extreme southeast portion of Bay Point a minimum of 1,600 feet and as far as 3,000 feet from the site of Petitioner's proposed high rise condominium buildings. When viewed from a distance, the four buildings which exceed two stories in height can barely be seen above the tree line. Bay Point is a mixed use development because it includes residential and nonresidential uses, as well as some community facilities. However, it is fair to state that Bay Point is a low-rise, low-density residential development, and it was planned as a predominately residential community under the 1986 DRI Development Order. Access to the residential part of the community is controlled through gates and a security force. Although there are some resort rental activities and tourist accommodations (a Marriott hotel), Bay Point is comprised of predominately permanent residents. There are 681 single-family homes on individual lots in the western portion of Bay Point, which are one and two-story structures comprising 79.9 percent of the development in Bay Point. The two-story single-family homes tend to be clustered along the bay or along the canals running through the development. As originally developed, commercial development made up only 10.4 percent of the land area of Bay Point. Of that total, 6.6 percent is retail and office development (such as offices, restaurants, retail shops, and a post office); 1.5 percent is commercial recreation (pro shops and golf and tennis club); and 1.7 percent is a Marriott Hotel. In addition, community facilities (including a playground for children) comprise 1.5 percent of the land area. There is also a 201-slip marina and a semi-private golf club on the premises. The "resort core" area of Bay Point refers to certain development in the Seasonal/Resort land use category containing a mixture of mainly seasonal and tourist residential, commercial, and noncommercial uses. Of the almost 1,000 acres in the Bay Point DRI, only about 24 acres were planned and approved for "resort core," or less than 15 percent of the 200 acres designated as Seasonal/Resort. The remaining 85 percent of the Seasonal/Resort area has a predominately residential character. Petitioner's project on Parcels F and 12 is far from any development that could be characterized as "resort core," and all of the development in the immediate vicinity of and surrounding Parcels F and 12 is residential development with structures not exceeding two stories in height. Thus, Petitioner cannot rely on any perceived proximity of Parcels F and 12 to the "resort core" as a basis for justifying the high-rise structures. Consistency with the Plan Intervenors contend that the NOPC is inconsistent with Future Land Use Element (FLUE) Policy 3.4.5 (which allegation is subject to an objection by Petitioner); Housing Element Objective 8.5; Housing Element Policy 8.5.1; Housing Objective 8.9 (which allegation is subject to a Motion to Strike); Stormwater Management Objectives 5E.9 and 5E.12; Stormwater Management Policies 5E.9.1, 5E.10.1, and 5E.12.1; and FLUE Policy 3.3.1. Each of these items will be addressed separately below. As a part of its 1999 Plan (which amended and updated the 1991 Plan), the County adopted special treatment zones (STZs) to be designated on the FLUM in addition to the future land use categories. The specific STZs are established pursuant to FLUE Objective 3.4, which provides that the zones are created "for purposes of dealing with unique or desirable circumstances." The unique circumstance in this case is the DRI. In the Plan, the County has either adopted or expressed its intent to adopt distinct land development regulations or land use controls for each STZ. FLUE Policy 3.4.5 establishes the Bay Point DRI STZ. This policy provides that: [t]he Bay Point Development of Regional Impact (DRI) Special Treatment Zone shall be established in order to ensure compatibility and consistency between the Bay Point DRI Development Order and the FLUM. Development in this area shall be governed by the DRI Development Order. (Emphasis supplied) The last sentence of Policy 3.4.5 was added by comprehensive plan amendment adopted on July 10, 2001. By virtue of the underscored language, the conditions and restrictions on the use and development of Parcels F, 9, 10, and 12 in the DRI Development Order in effect on July 10, 2001, are incorporated into the County's Plan. This was confirmed at hearing by the County's Planning and Zoning Manager. Thus, the maximum five-story height limitation on Parcel 12 contained in the DRI Development Order is incorporated into the Plan by reference through Policy 3.4.5. Because all three of Petitioner's proposed high-rise condominium buildings exceed the five-story height limitation for Parcel F found in the DRI Development Order in effect on July 10, 2001, the NOPC is inconsistent with Policy 3.4.5. Objective 8.5 of the Housing Element provides that all projects in the County will "preserve and protect the character, compatibility, and aesthetics of residential areas and neighborhoods through the enforcement of land use regulations." Petitioner contends that this Objective cannot apply to the development on Parcels F and 12 because these parcels are in a mixed land use category under the FLUM and therefore are not in "residential areas or neighborhood" as contemplated by the Objective. However, the Objective refers to "residential areas and neighborhoods," and not to future land use categories. Thus, the Objective is directed towards existing residential and multi-family development in Bay Point, including Intervenors' property, and must be taken into account when judging the merits of Petitioner's application. "Character" and "aesthetics" are not defined in the Plan. Rather, they are terms of art in the planning profession and are commonly understood by planning professionals. These terms refer to development as it exists, not development that could occur based on a land use category. This is because one cannot protect the character and aesthetics of a land use designation. The evidence shows that "character" consists of those attributes that lend a sense of place to an area, which people in the area can identify with that is distinguishable from other such areas. It includes such factors as type of buildings, building height and mass, the relationship of one building to another, the types of activities that go on in the area or neighborhood, the presence or absence of vegetation, the presence or absence of underground utilities, street design, architectural design, and the preservation of the long-standing stable nature of a neighborhood. "Aesthetics" are those attributes that determine whether an area is visually pleasing. The character of the Bay Point community is that of a stable, low-rise, low density, residential resort community. The buildings in Bay Point consist of individual homes and small villa or townhouse-type buildings clustered on parcels. There are no high-rise buildings in the community or beachfront property. The evidence clearly supports a finding that Bay Point is a predominately neighborhood residential community. Petitioner proposes to construct on Parcels F and 12 three separate high-rise buildings. The outer buildings are six stories at their exteriors, with step increases to ten stories at the interiors. The center building will be eleven stories at the outer edges, with a step up to twelve stories at the peak. The construction of these high-rise condominiums will be in stark contrast to, and out of harmony with, the existing low-rise, low-bulk structures which surround the proposed project and will dramatically change the low-rise, neighborhood character of Bay Point. Thus, the proposed condominiums are not consistent with Objective 8.5 in that they do not preserve the character of the existing residential development within Bay Point. Policy 8.5.1 of the Housing Element requires compatibility between types of residential structures. The Policy also requires that specific criteria be included in the County's Land Use Code "for the preservation and protection of residential areas." It further provides that these standards should ensure that "compatibility between types of residential buildings" will be maintained, and that "residential areas will be used primarily for residential purposes." As of the date of hearing, however, no standards had been adopted, although the County is now in the process of developing such criteria. Until specific criteria are adopted and included in the Land Use Code, Petitioner contends that the Policy cannot be relied upon by Intervenors. If this proposition were true, however, no existing project could be measured for compatibility, and the Policy would be meaningless. The more persuasive evidence supports a finding that in the absence of specific standards in the Land Use Code, it is appropriate to rely upon standards used by land use professionals for determining compatibility between types of residential buildings. Indeed, every land planning expert who testified at hearing agreed that a consistency determination should be made based on the guidance provided in the Objectives and Policies of the Plan. The County has addressed the subject of compatibility in Objective 3.9 and Policy 3.9.1 of the Future Land Use Element. The former provision provides that "[a]ll proposed land uses shall be compatible with adjacent conforming land uses," while the latter provision defines "compatibility" to mean "a condition in which land uses or conditions can coexist in relative proximity to each other in a stable fashion over time such that no use or condition is unduly negatively impacted directly or indirectly by another use or condition." The evidence establishes that land use planners view compatibility as meaning the relationship between buildings, uses, and activities to one another. Factors to be used in making this determination are density, building height, scale and mass, lot configuration, and building orientation. Other factors used in this determination include established development patterns, expectations that arise from established development patterns, character of the neighborhood, and stability of the neighborhood. The evidence supports a finding that the development pattern in Bay Point, the expectations of Intervenors and the community based on that development pattern, and the atypical height and mass of Petitioner's project render the proposed project incompatible with Bay Point and thus inconsistent with Objective 8.5.1 of the Plan. In making this finding, the undersigned has found that Petitioner's compatibility analysis is too narrow in scope and ignores the reality that Petitioner proposes to develop three high-rise buildings, grouped together in one location, in an established, predominately low-rise residential community. Objective 8.9 of the Housing Element requires that any project in the County "[p]rotect residential property values and ensure that each homeowner has the opportunity for quiet use and enjoyment of their residence." Thus, in order to be consistent with the Plan, Petitioner must demonstrate that its project will not impact the residential property values in Bay Point in a negative manner. To demonstrate consistency with the foregoing Objective, Petitioner's expert opined that the proposed project would infuse new capital and value into the Bay Point area thereby increasing property values. However, Petitioner's market study (Petitioner's Exhibit 12) is flawed in several respects. For example, it incorrectly defines the Bay Point neighborhood as including an intensely developed Gulf front tourist district along Thomas Drive and the east end of Highway 98 in Panama City, within a three to six mile southern radius of Bay Point, and which includes high-rise condominiums, motels, and commercial uses that are dependent on the tourist industry. The study also concludes, erroneously, that most of the condominium units in Bay Point are utilized as second homes and rental properties by absentee owners. Finally, the study uses two "comparable" projects on which to base a market analysis, one in Destin and the other in Seascape. Neither property is really comparable since both are located on the Gulf of Mexico in neighboring Walton County. The more credible evidence establishes that the threat of development of high-rise buildings on Parcels F and 12 has caused a decline in residential property values in Bay Point. Further, if the NOPC is approved, the property values will continue to decline. This decline has been exacerbated by the loss of the Bay Point community center and tennis courts, which were previously located on the lots in question. Given these considerations, it is found that the NOPC is inconsistent with Housing Element Objective 8.9, in that the NOPC does not protect property values within the community. Intervenors further contend that the NOPC is inconsistent with various Objectives and Policies in the Stormwater Management Element since the NOPC does not contain a detailed stormwater plan for the proposed project. These Objectives and Policies are designed to reduce and eliminate flooding, protect surface waters from contamination and sedimentation caused by the stormwater, and prevent future problems by regulating development. This contention has been rejected since the specific requirements for the stormwater system necessary to serve Parcels F and 12 are not properly addressed in the DRI process, but rather will be considered by the County at the time the actual construction documents for these parcels are submitted for review and permitting. Finally, Intervenors assert that the NOPC is inconsistent with Future Land Use Element Policy 3.3.1, which designates criteria for designating land use categories on the FLUM and attendant standards for development. No credible evidence was presented on this issue, and therefore the contention has been rejected. All other matters raised by Intervenors have likewise been considered and rejected.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Land and Water Adjudicatory Commission enter a final order denying Petitioner's application for a NOPC on the ground that it is inconsistent with FLUE Policy 3.4.5, Housing Element Objective 8.5, Housing Element Policy 8.5.1, and Housing Element Objective 8.9 of the Bay County Comprehensive Plan. DONE AND ENTERED this 11th day of December, 2002, in Tallahassee, Leon County, Florida. ___________________________________ DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of December, 2002. COPIES FURNISHED: Donna Arduin, Secretary Florida Land and Water Adjudicatory Commission Office of the Governor The Capitol, Suite 2105 Tallahassee, Florida 32399-0001 Kenneth D. Goldberg, Esquire 1725 Mahan Drive, Suite 201 Tallahassee, Florida 32308-5201 Michael S. Burke, Esquire Burke & Blue 221 McKenzie Avenue Panama City, Florida 32401-3128 Robert C. Apgar, Esquire Sherry A. Spiers, Esquire Law Offices of Robert C. Apgar 320 Johnston Street Tallahassee, Florida 32303-6214 Richard W. Moore, Esquire Amundsen and Gilroy, P.A. Post Office Box 1759 Tallahassee, Florida 32302-1759 Raquel Rodriguez, General Counsel Florida Land and Water Adjudicatory Commission Department of Legal Affairs The Capitol, Suite 209 Tallahassee, Florida 32399-0001
Findings Of Fact Mary G. Realty owns Lots 57-63 and the north 10.25 feet of Lot 64, Clearwater Beach Park, which occupy the southwest corner of Mandalay Avenue and Baymont Street on Clearwater Beach. For many years this property was operated as a gasoline service station until the death of the owner-operator and its purchase by Mary G. Realty in December, 1983. The property is zoned CG and has been so zoned for many years without change to the present. The gasoline station building is still located on the property and the proposed development will include use of that structure, which is approximately 40 feet by 60 feet. Applicant proposes to construct and operate a two-story office/retail store building with three large apartments on the second floor. The proposed addition would add 16 feet to the south side of the existing building extending 80 feet eastward from the west line of this building, with the eastern 40 feet of this extension 25 feet wide. It is also proposed to add an additional 70.7 feet to the north side of the existing building. As proposed, the first floor would occupy 6,680 square feet and the second floor would contain 5,878 square feet. Variances approved by the zoning board include a 3.5 foot setback on the rear property line to allow the property additions to follow the line of the existing structure; a 6-foot setback on the south property line; a 15-foot setback on 25 feet of the proposed addition from Mandalay Avenue; no buffer zone between parking and street right-of-way on both Mandalay Avenue and Baymont Street; and a variance of 32 parking spaces. Applicant's proposal approved by the board is to provide 25 parking spaces, a variance of 32 in the parking space requirement for the structure proposed. Petitioner's property abuts the property owned by Mary G. Realty and the structure on that property, which was built before the present zoning laws became effective, is nonconforming with the zoning regulations. In its application for the variances here under review Mary G. Realty requested a zero setback from the north property line, which was withdrawn; a 3.5-foot setback at the rear of the property in lieu of the 10-foot requirement for commercial general, and the board approved 3.5 feet; a one-foot setback on south property line in lieu of the 10 feet required, and the board approved a 6- foot setback; a 15-foot front setback in lieu of 20 feet required by the code, and the board approved 15 feet; a variance of 48 parking spaces, which was reduced by applicant's withdrawal of zero setback for north property line, resulting in a smaller size structure requiring less parking spaces and the addition of parking spaces from this same reduction, and the board approved a variance of 32 parking spaces; and a zero buffering requirement abutting Mandalay Avenue and Baymont Street, which the board granted. This property is unique only in that it is located in an area in which a large percentage of the buildings are nonconforming. The property is a trapezoidal shaped parcel having the following dimensions: south property line 100.47 feet, west property line 167.52 feet, north property line 100.77 feet, and east property line 178.55 feet. One of the principal factors at issue here is the requested variance in parking spaces required. Applicant purchased the property due to the pending expiration of its existing business lease and intends to move its business to the new location and provide additional office and shop space with apartments on the second floor, thus having a combined commercial and residential structure. There are no shopping facilities on Mandalay Avenue north of State Road 60; the area is mostly built up with motels, hotels, apartments, and restaurants; and the shopping customers are generally the same people who walk along Mandalay. Accordingly, there is less need for parking to accommodate a shop in this area than would be required in another part of Clearwater, although the magnitude of this difference has not as yet been determined. Witnesses testified to the need for additional shopping facilities north of State Road 60; to the fact that few people in automobiles shop on North Clearwater Beach; and, while functioning as a service station, no parking spaces were provided on this property. This property was purchased by Mary G. Realty for $295,000 and evidence was presented that less building space than proposed would not make the purchase economically feasible. However, insufficient evidence was presented to support this conclusion. This factor is given little weight because the purchaser knew, or should have known, of the zoning restrictions before the property was purchased. Most of the property in the vicinity was developed long before the current zoning regulations were adopted and the structures thereon are generally nonconforming both with respect to setbacks and parking, even though they offer rooms to transients who arrive in automobiles. These nonconforming structures result in some of the buildings in the vicinity being built right to the property line.
The Issue Whether Appellants were wrongfully denied a variance of 16-17 parking spaces that could allow an existing 2170 square foot restaurant to transfer and use its 2-COP State alcoholic beverage license at 201 South Gulfview Boulevard on Clearwater Beach, in the City of Clearwater.
Findings Of Fact Appellants own real property on the north corner of South Gulfview Boulevard and First Street on Clearwater Beach. The property is in a zoning district designated as CR-28 (Resort Commercial District/Commercial Tourist Facilities), and is primarily used by Appellants to operate a motel business. The surrounding land uses to the north, south and east are primarily motel. To the west is a public parking lot and the beaches. In May 1990, Appellants leased a portion of the ground floor to James B. Mayes so that he could operate a restaurant known as Britt's Beachside Cafe at that location. In order to build a restaurant on premises, 2170 square feet of gross floor area was improved by the lessee. Pursuant to code, 11 parking spaces were needed for the restaurant to meet parking space requirements for an eating establishment at this site. The parking space calculation was made according to the formula of one space per 100 square feet of gross floor area, the general parking formula for restaurants, with a 50 percent reduction allowed for Clearwater Beach locations. Prior to the opening of the business, only 9 off-street parking spaces were allocated to Britt's Beachside Cafe. During May 1990, a variance of 2 parking spaces was requested by Appellants and granted by the Development Code Adjustment Board. At that time, Britt's Beachside Cafe was involved with food and non-alcoholic beverage sales. With the approved variance, the restaurant was granted an occupational license and a certificate of occupancy for the operation of the restaurant at this location. Previously, Mr. Mayes operated his restaurant in a larger motel with a smaller parking lot and fewer parking spaces approximately 60 feet north of the subject property for almost four years. The former restaurant had 120 seats for patrons as opposed to the current 84 seats. Beer and wine was sold in the restaurant under a 2-COP State alcohol beverage license. The beverage license was acquired because this location was exempt from the current city parking requirements under a grandfathering provision of the Clearwater Code. In addition, Mr. Mayes' restaurant was exempt from the code requirement that 51 percent of sales had to be from food and non-alcoholic beverages because the business existed before the ordinance went into effect. When the restaurant moved, the exemption from current parking space requirements remained with the original location, and the exemption from the 51 percent sales from food and non-alcoholic beverages for the business was removed. The 2-COP State alcohol beverage license for Britt's Beachside Cafe, however, was attached to the business and could easily transfer to the new location if local zoning laws permitted its use there. In order to have the alcoholic beverage license transferred to the new business location, the state requires the business to continue with its compliance with local zoning and development laws. To accomplish this, the restaurant is required to have one parking space per 40 square feet of gross floor area, with the 50 percent reduction formulated and allowed for a Clearwater Beach location. As Britt's Beachside Cafe is currently operating under the 11 parking space requirement, 16-17 more parking spaces are needed for the business to transfer the beverage license to the new business location. The actual number of parking spaces for the restaurant on location is During site review prior to the granting of the certificate of occupancy, city staff improperly counted four illegal parking spaces along First Street as legitimate, non-conforming off-street parking spaces. The restaurant caters primarily to persons walking to the restaurant either from adjacent motels or the beach. Few automobiles are driven and parked at Britt's Beachside Cafe. Even when the business was located in the other motel with more seating and fewer parking spaces, parking was never a problem in the area. There is considerable public parking immediately adjacent to Appellant's property, both across the street, and approximately one block to the north. When restaurant patrons are unable to use the parking spaces on location, they park in these convenient public spaces. Since Mr. Mayes relocated his restaurant, he has served beer and wine on premises, without charge. It has always been his intent to transfer his 2- COP State alcoholic beverage license to this new location if permitted to do so through a parking space variance. The City's requirement that the restaurant acquire more off-street parking spaces is factually unnecessary if the sole purpose of the ordinance is to provide parking for the restaurant patrons. At the old location, parking was never a problem. Likewise, no problems exist at the new location. As the restaurant no longer seeks to expand, the major differences a parking variance would make are that Mr. Mayes could charge for the beer and wine served and use his 2-COP license. When Appellants proceeded through the first phase of the approval process to obtain a decision from the Planning and Zoning Board, their conditional use application met with approval. It was determined, however, that the preliminary approval would be subject to the obtainment of a parking space variance, which needed to be decided by the Development Code Adjustment Board. Accordingly, the application proceeded to the second phase. If granted in the second phase, Appellants would go to the City Commission for a variance from the separation requirement. The application for a variance that removes the requirement for 16-17 additional parking spaces to enable the sale of beer and wine on premises was denied by the Development Code Adjustment Board and this appeal followed. The appeal was filed based upon the allegation that the decision of the Development Code Adjustment Board departs from the essential requirements of law. The Code of Ordinances of the City of Clearwater requires additional parking for establishments with alcoholic beverage licenses, which by nature of their license only, can be converted from restaurants to taverns or night clubs. Mr. Mayes' restaurant, which is subject to the additional parking space requirement because of the type of alcoholic beverage license he seeks to transfer, is already prevented from converting to a tavern or a night club by virtue of the restaurant's location in the CR-28 zoning district. In the CR-28 zoning district, all alcoholic beverage sales for consumption on premises shall be located only within a hotel or motel in conjunction with a 4-COP license or within a restaurant deriving 51 percent or more of its gross revenue from the sale of food and non-alcoholic beverages. The restrictive requirement that a 2-COP license be used solely to accompany a restaurant business, as opposed to a tavern or night club in the special CR-28 zoning district, is balanced by the Clearwater Code provision that reduces the required number of parking spaces by 50 percent for Clearwater Beach locations and the opportunity to have a business that sells alcoholic beverages in a resort commercial district. The 2-COP license was acquired prior to the restaurant's move to its current location. If Appellants request for a parking space variance is denied, Mr. Mayes' application for transfer of his beverage license to a new location will likely be denied by the state, pursuant to Section 561.331, Florida Statutes. The request for the variance is based primarily on Mr. Mayes' desire for greater financial return on his business and to keep his 2-COP license attached to the restaurant. The Development Code Adjustment Board has granted parking variances to other 2-COP restaurants before and after Appellants' application in the same zoning district. These variances were based on applications and evidence presented at Board hearings.
The Issue The issue in this case is whether Respondent’s intended award of a lease for office space to a bidder other than Petitioner was clearly erroneous, contrary to competition, arbitrary, or capricious.
Findings Of Fact Respondent, on or about May 18, 1998, advertised and released RFP for Lease No. 800:0184 in order to procure approximately 5,000 square feet of office space in Lake City, Florida. Three timely filed proposals were submitted in response to the RFP. One of the submissions was determined to be nonresponsive and rejected. The two other proposals submitted by Petitioner and William and Willene Giles (Giles) were deemed responsive and evaluated by Respondent personnel. Site visits were made to each of the proposed sites. The sites were then evaluated using a numerical scoring system. Respondent’s initial posting of bid results on August 4, 1998, indicated a tentative award of the lease to Giles. Giles received a total score of 88.5 points. Petitioner received the maximum points with respect to cost, but was given only a total of 75.7 points. The RFP clearly requires that a bidder must provide a site layout drawn to scale which indicates the facility location and dimensions of each parking space. Also, the number of parking spaces assigned to other tenants must be identified. A bidder must agree to provide 25 parking spaces on site for use by Respondent. The site plan submitted with the Giles proposal shows five of the required parking spaces are located on property abutting the Giles property. Those five parking spaces do not currently exist on that property. No ingress or egress is shown on the site plan, although such is required by the RFP. The Giles bid should demonstrate requisite control over the adjacent property utilized in that bid. Such is not the case. Documents submitted to indicate control of the property by Giles are deficient. In addition to holders of life estates in the property, fee owners of the property must also agree to use of the property in conjunction with the lease between Giles and Respondent. The evidence does not establish that the fee owners have provided their consent. Testimony of Mary Goodman, an expert witness on behalf of Petitioner, establishes that the Giles’ bid did not demonstrate the requisite control of the property, specifically the parking area, required by the RFP at the time of bid opening. The Giles bid was not responsive. Petitioner’s bid identifies and offers for lease space in the Lake City Professional Plaza. The drawing submitted with the bid mistakenly identifies the area of the proposed lease space as “Grant Plaza.” Additionally, Petitioner’s bid did not contain a Public Entity Crime Addendum as required by the RFP. Failure to meet this requirement, by terms of the RFP, “will result in immediate disqualification of your proposal.” Other errors in Petitioner’s bid include the drawing submitted in the bid response which depicts parking. The drawing indicates that there are “new” parking spaces which are to be 10 feet wide by 19 feet deep. Under local land use regulations, new regular parking spaces must be 10 feet by 21 feet with a requirement that handicapped spaces measure 12 feet by 20 feet. Petitioner’s bid fails to comport with applicable local land use regulations. On page 2 of the RFP, Respondent reserves the right to reject any and all proposals which are not responsive. Neither the Giles’ bid nor the Petitioner’s is found to be responsive.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered finding none of the bids to be responsive and making such other disposition as may be deemed appropriate. DONE AND ENTERED this 7th day of December, 1998, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 Filed with the Clerk of the Division of Administrative Hearings this 7th day of December, 1998. COPIES FURNISHED: Joseph M. Helton, Jr., Esquire Scott C. Wright, Esquire Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 Robert A. Sweetapple, Esquire Sweetapple, Broeker and Varkas 465 East Palmetto Park Road Boca Raton, Florida 33432 Calvin Ross, Secretary Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 Janet Ferris, Esquire Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100
Findings Of Fact Petitioner is a private yacht club located on Lots 5-11 inclusive, Block D, Bayside No. 6, Unit A, 830 South Bayway Boulevard, Clearwater, Florida. Founded some five years ago, the club provides a wide array of boating and social functions for its membership. It sits on the north side of Bayway Boulevard and is approximately 50 feet east of Clearwater Pass Avenue. The property is rectangular shaped and has dimensions of approximately 420 feet by 120 feet. The widest portion of the property fronts Clearwater Harbor to the north and Bayway Boulevard on the south. The yacht club is situated within an area currently zoned by the City as CTF-28 (high density commercial-tourist). This District provides for a complete range of motel-hotel developments with a major emphasis on tourism. The primary permitted uses and structures within the CTF-28 District are combination hotel, motel, apartment and business buildings, apartment houses, townhouse developments and restaurants. A number of special exceptions to the permitted uses are authorized within a CTF-28 District. These include, inter alia, three types of marina facilities, namely, Type A (pleasure craft docking), Type B (launching ramp site, commercial) and Type C (private marina). The City has never classified Petitioner under any of these categories. Upon obtaining a Type C classification, a property owner may engage in 12 separate uses of the property as a matter of right, and a thirteenth upon obtaining specific Board approval. These include: (a) sales and service facilities, (b) boat slips (excluding covered boat slips or dry storage unless specific Board approval is obtained), (c) boat handling equipment, (d) boat and gear storage, (e) launching facilities, (f) fuel station, (g) lockers and sanitary facilities, (h) restaurant facilities (not advertised), (i) club house, (j) motel or boatel, (k) recreational facilities (not commercial), (l) park or picnic area, and (m) automobile parking. Petitioner now engages in all permitted activities except items (a), and (j). It does not wish to engage in the latter three uses even if the application is granted. All activities presently conducted are done so in a manner consistent with the requirements of the Zoning Ordinance. On the east side of Petitioner's property is a multi-story restaurant and lounge while to the west lies a 4-story condominium complex (Bayside 17). Directly across Bayway Boulevard and to the south are two high-rise condominium complexes, one of which is still under construction. Boat docking facilities are located on the waterfront throughout the area, including that of Petitioner and adjacent property owners. The area may be generally described as a combination of high density residential and commercial buildings and structures catering to the tourist or part-time resident. The proposed reclassification is compatible with the surrounding properties and the character of the land. Its uses fit within the general scheme of zoning for a CTF-28 District, and are consistent with the Land Use Plan. The chief concern of the adjacent property owners who testified is a fear that reclassification of the property will diminish the view of the water now enjoyed across the clear space on the west side of Petitioner's property. However, since no change in the use of the property will be made by virtue of reclassification, the existing view should not be impaired.
The Issue The issue in this case is whether the Respondent's proposed award of DCPHU Bid I-90 to the Intervenor, Meyers Parking Systems, Inc., for the management of a parking facility located at 1350 Northwest 14th Street should be upheld.
Findings Of Fact For approximately the last ten years, Kinney has operated the parking lot at the Dade County Public Health Unit building located at 1350 N.W. 14th Street in Miami, Florida (the "Parking Lot") pursuant to a contract with HRS. The existing contract between Kinney and HRS for the management of the Parking Lot was entered in June 1989 and was scheduled to expire on June 30, 1990. That contract included two one-year options to renew. The contract also included a provision that allowed either party to terminate the contract upon thirty days notice. The contracts for management of the Parking Lot in previous years were substantially identical in form to the existing contract. In February of each year, a contract review committee consisting of the head of the administrative services department of the facility (the "Contract Manager') and several other employees of the facility would meet to discuss the Parking Lot contract and to determine whether to renew the contract or rebid it. (This Committee will be referred to as "Parking Lot Committee.") The Contract Manager (whose title has been recently changed to Administrative Services Director) essentially chaired the Parking Lot Committee and appointed the other employees who served on the Committee. For the last ten years the Contract Manager has been responsible for overseeing this contract. During this time, his main contacts at Kinney were Chuck Adams, who was usually at the Parking Lot on a daily basis, and Mr. Adams' supervisor, Ken Deutsch. Both Mr. Deutsch and Mr. Adams left the employ of Kinney sometime prior to February, 1990. The exact date of their departure was not established. Both Mr. Deutsch and Mr. Adams now work for Meyers. Kinney's new representative with respect to the Parking Lot contract was Tony Benyon, who assumed those responsibilities on February 1, 1990. Mr. Benyon had previously worked for Meyers and was on the job only twenty two days before the decision was made to rebid the contract. On February 22, 1990, the Parking Lot Committee met and determined not to renew the contract with Kinney. At the time this decision was made, the Contract Manager was aware that the former Kinney employees had switched jobs and were now working for Meyers. However, it does not appear that he brought the job changes to the attention of the Parking Lot Committee because at least one member of the Committee was not aware of the job changes. On or about March 23, 1990, HRS issued an invitation to bid for the management and operation of the Parking Lot (the "Invitation to Bid.") Although the evidence did not establish exactly how many time this contract had been bid in the past, it appears that bids were solicited for this contract on at least two prior occasions during the ten years that Kinney had been operating the Parking Lot. On each occasion, the Invitation to Bid form was substantially identical to the form used in March of 1990. Page 6 of the Invitation to Bid requested bidders to submit a resume of their backgrounds. Page 8 of the Invitation to Bid was entitled "Bid Sheet" and required bidders to submit the following information: "(1) Proposal for Operating the Lot; (2) Proposed Rates, (3) Proposed Net Income Distribution." The Invitation to Bid did not require the bidders to provide any documentation regarding their financial condition nor did it indicate that prior job performance would be considered in evaluating the bids. The Invitation to Bid contained a provision that "any questions concerning conditions and specifications shall be directed in writing to this office for receipt no later than ten (10) days prior to the bid opening." Between the time the Invitation to Bid was sent out and the bids were received, the Contract Manager admits that he "probably" had conversations with some of the bidders and responded to questions about the bid. The Contract Manager could not specifically recall any such discussions with potential bidders between the time the Invitation to Bid was sent out and the date the bids were submitted. However, he admitted that it was likely that some discussions took place. Kinney was never advised of any such discussions between the Contract Manager and other potential bidders. Three sealed bids (including proposals from Kinney and Meyers) were received and opened by HRS at a bid opening on April 4, 1990. A fourth bid was disqualified because it was not sealed. The members of the Parking Lot Committee and representatives of the bidders were present at the bid opening. The bid submitted by Kinney proposed a net income distribution to HRS of 82.5 percent with the remaining 17.5 percent being retained by Petitioner. The Kinney bid also contained a specific breakdown of anticipated costs, fees and expenses to be deducted from the projected gross income to achieve projected net income, a resume and a list of references regarding other-lots being managed by the Petitioner in the area. Meyers and Hi-Rise Parking Systems, Inc. ("Hi- Rise") also submitted bids. Both of those bids contained a proposed net income distribution of 90 percent to HRS. Neither the Hi-Rise nor the Meyers' bids contained a resume or a list of local references of other lots being managed by the companies nor did they contain a listing of anticipated costs, fees and expenses. At the bid opening, the Contract Manager indicated that the bids submitted by Meyers and Hi-Rise were the low bids and the Parking Lot Committee would meet to determine how to "break the tie." At this point, Kinney was effectively eliminated from consideration. By letter dated April 10, 1990, the Contract Manager requested additional information from Meyers and Hi-Rise as follows: Company background information including officers, organization and latest financial/management audit; [and] At least three references to include name of contact person, firm, mailing address and telephone number. The Contract Manager did not request any additional information from Kinney or the disqualified bidder. On or about April 16, 1990, Meyers submitted the requested information to the Contract Manager. On or about April 17, 1990, Hi-Rise submitted the requested information to the Contract Manager. Thus, it is clear that information regarding the financial condition of Meyers and Hi-Rise was not submitted until after the bids were opened. On May 1, 1990, the Parking Lot Committee met to discuss the additional information received from Meyers and Hi- Rise. At that meeting, the members of the Committee completed a "bid selection review form" that listed (1) net income distribution (2) references and (3) company management and financial condition as the criteria for evaluation of the bids. The Committee determined that Meyers and Hi--Rise were "tied" in all categories except financial condition. At best, the submitted financial information provides a cloudy picture of Meyers' financial status. The information indicates that Meyers showed an income loss for the year 1988-1989 of $3,670,000. While a large portion of this loss is apparently related to corporate restructuring, it does not appear that any members of the Parking Lot Committee understood or fully considered this financial information nor did they seek to have the submitted financial information reviewed by an accountant. Hi-Rise's financial records indicate that it is a significantly smaller company, but its records indicated a positive cash flow for the preceding year. Notwithstanding these facts, the Committee decided to award the contract to Meyers. This decision was essentially made on the recommendation of the Contract Manager. The bid selection review form stated as follows: Based on bids and additional information provided, the Parking Lot Management Bid Selection Team recommended award of DCPH Bid No. I-90 to Meyers Parking System, Inc. On May 9, 1990, HRS provided all interested parties with a notice of its selection of Meyers as the successful bidder. In the Notice of Selection, HRS indicated that Meyers had been selected based on the proposed net income distribution, references, background and financial condition. Petitioner timely filed a protest of the proposed award of the contract. The Parking Lot Committee excluded Kinney from consideration based solely upon the net income distribution percentage. However, since the Invitation to Bid did not require the bidders to specify or limit in any way the expenses that could be deducted from gross revenues prior to distributing proceeds to HRS, there was an insufficient basis to accurately evaluate the proceeds that HRS could reasonably expect pursuant to any of the bid proposals. HRS and Meyers have argued that, because HRS has many years experience and expense records relating to the operation of the Parking Lot, the information provided pursuant to the Invitation to Bid provided HRS with sufficient information to make a reasonable evaluation of the financial terms of the proposals. This contention is rejected. To permit such uncertainty and discretion to be built into the bid process would substantially undermine the integrity and dependability of the process. Item 12 on page 6 of the Invitation to Bid required that "bidders will submit a resume of their background and other local lots they are currently managing." No such resume or lists were provided by Meyers. Meyers contends that its response to Item 1 on Page 8 of 8 adequately addressed this requirement. That response provided as follows: PROPOSAL FOR OPERATING LOT. Meyers Parking System, Inc. proposes to operate the Dade County Health department's parking lot with the same high degree of professionalism that we are known for and have demonstrated to our other clients throughout the county. The facility will be managed by trained, uniformed, courteous employees and supervised regularly and closely with our field supervisors and our Regional Vice-President... This statement is not a sufficient response to Item 12 of the Invitation to Bid. During the Parking Lot Committee meeting on February 22, 1990, several complaints were made regarding Kinney's performance under the existing contract. However, no efforts were ever undertaken by HRS to terminate the existing contract with Kinney. While HRS contends that the complaints were part of the reason for deciding to rebid the contract, no steps were taken to disqualify Kinney from bidding on the new contract. In any event, most of the complaints voiced on February 22, 1990 would have been the responsibility of the prior managers of Kinney who now work for Meyers. In February and March of 1990, the disbursements to HRS under the existing contract diminished significantly. This decrease in payments was the result of embezzlement by Kinney employees. While HRS has cited this shortage to justify its decision in awarding the contract to Meyers, there is no evidence that HRS ever attempted to terminate the existing contract nor does it appear that the Parking Lot Committee considered this fact in deciding to eliminate Kinney's bid from consideration. Similarly, the evidence established that there have been problems during the months of March, April and May of 1990 with attendants failing to appear at work on time or leaving the job site. Again, however, there is no indication that HRS attempted to terminate the existing contract or that the Parking Lot Committee relied upon these factors in deciding to eliminate the Kinney bid from consideration. There have been recurring complaints made to Kinney under the existing contract regarding excessive towing of cars from the Parking Lot. The problem of parking lot attendants ordering cars towed without the permission of HRS has existed off and on for sometime. Even though HRS representatives had voiced complaints about the. towing policies, the evidence indicates that this recurring problem became worse in the late spring and early summer of 1990. Nonetheless, HRS never sought to terminate the existing contract because of the towing problems nor did the Parking Lot Committee rely upon this fact in deciding to eliminate the Kinney bid from consideration.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Secretary of the Department of Health and Rehabilitative Services enter a Final Order rejecting all bids for DCPHU Bid I-90 and issue a new Invitation to Bid. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 31 day of October, 1990. J. STEPHEN MENTON 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 31 day of October, 1990.
Findings Of Fact Petitioner, The Mills Development Group of Florida, Inc., owns a condominium project now under construction at 1660 Gulf Boulevard, Clearwater, Florida. The project is on the south end of Sand Key, a thin finger-like strip of land which runs in a north-south direction between the Gulf of Mexico and Clearwater Harbor. Gulf Boulevard is the principal road traversing the Key. The condominium project is situated on the west side of Gulf Boulevard and fronts the Gulf of Mexico. Petitioner proposes to construct a marina on the east side of Gulf Boulevard which fronts Clearwater Harbor. It will be used by the condominium residents and their guests. If the application is approved, Petitioner will construct a 683' x 6' boardwalk next to the seawall, which extends along the waterline on Clearwater Harbor. Extending outward from the boardwalk no more than 30 feet will be 20 catwalks providing slips for approximately 40 boats. Petitioner desires to build a boardwalk to have access to the deeper water which lies outward from the seawall and to avoid dredging activities. The boardwalk will also provide greater safety for the boaters. The proposed project lies within an area currently zoned by the City as District RM-28 (High Density Multi-Family Use District). This District was created to provide for high density apartment and condominium development use. Permitted uses and structures within the District include apartment houses, townhouse developments and accessory buildings, including recreational buildings and/or community meeting buildings. A number of special exceptions are authorized within a RM-28 District. These include, inter alia, a Type A Marina facility for pleasure craft docking. Accordingly, if the application is approved, the use will be consistent with the Land Use Plan and Zoning Ordinance. The City expressed concern that persons using the facilities may wish to park on the grassy strip which lies between Gulf Boulevard and the proposed marina which in turn will impede the traffic flow on the thoroughfare. However, adequate parking for guests and residents will be located at the condominium across the street. Further, no material change in the amount of traffic is expected to be generated by the facility. Moreover, City approval is required if Petitioner desires to provide improved parking facilities on the grassy strip in the future. Intervenor/Respondent, isle of Sand Key Condominium Association, is a condominium association located to the east of Petitioner and approximately 150 feet across the channel at the proposed marina's northern end. The Association does not object to the project itself but is concerned only with the proposed length of the boardwalk. The Association has its own marina facilities which run perpendicular with the waterway and Sand Key. If approved, the proposed boardwalk would lie directly across the waterway from the Association's facilities leaving insufficient space in the channel for expansion of its marina. The Association also contends the proposed marina, if constructed in its present design, will violate an Easement Agreement entered into in November, 1975, by the prior owner of Petitioner's property and the Association. However, this concern is beyond the scope of this proceeding.
Findings Of Fact Petitioners own the Sea Cloud Motel with 11 rooms located at 540 South Gulf View Boulevard, Clearwater, Florida, in an area zoned CTF-28. CTF-28 is high density commercial-tourist and is dominated by motels, restaurants, and other businesses catering primarily to tourists. The Sea Cloud Motel has only ten parking spaces at present, with two of these spaces so located that with the space behind them occupied a car cannot get into or out of those spaces. Petitioners have leased five additional spaces from the Clearwater Point Deli on property adjacent to the Sea Cloud Motel (Exhibit 2). Adjacent to the Sea Cloud Motel is the Hibiscus Gift Shop owned and operated as part of the Red Carpet Resort Motel. Across the street from Petitioners' property is a convenience store with gas pumps and a car rental agency. Several realty offices are located in the general area of the Sea Cloud Motel in addition to restaurants and convenience stores. The principal objection to the special exception here requested came from adjacent property owners who fear the real estate office will aggravate the inadequate parking facilities presently existing on Clearwater Beach. The addition of the real estate office in a space less than 150 square feet will not require the addition of another parking space. The leasing of five additional parking spaces will more than adequately compensate for the additional traffic anticipated to be generated by a one-desk real estate office, particularly where the office is intended to concentrate on foreign visitors interested in real estate investments at Clearwater and will be operated by the co-owner of the motel, Kathleen M. Fuller, a registered real estate salesperson.