The Issue At issue in this case is whether the Florida Land and Water Adjudicatory Commission (FLWAC) should grant the Petition to Amend the Boundary of the Villages of Westport Community Development District (CDD, or District) filed on December 23, 2005 (Petition), as amended and supplemented.
The Issue The issue in this case is whether a small scale amendment to the Cooper City comprehensive plan adopted pursuant to Section 163.3187(1)(c), Florida Statutes, is "in compliance."
Findings Of Fact The Parties. Petitioner, The Sunshine Ranches Homeowners Association, Inc. (hereinafter referred to as the “Homeowners Association ") is a not-for-profit corporation. The Homeowners Association has members who reside within the residential area known as Sunshine Ranches, located in Broward County. The address of the principal office of the Homeowners Association is 12400 Flamingo Road, Fort Lauderdale, Broward County, Florida. (Stipulated Facts). The Homeowners Association was formed on or about December 4, 1968. The Homeowners Association is involved in working for the betterment of residents and land owners within Sunshine Ranches to secure political, social, and economic improvement within Sunshine Ranches. Petitioner, Charles F. Seip, resides at 4661 Southwest 128th Avenue, Fort Lauderdale, Florida. Mr. Seip lives two blocks west of the parcel of property which is the subject of this proceeding. Mr. Seip has lived at his current location for 26.5 years. (Stipulated Facts). Petitioner, Anthony E. Coulson, resides at 4710 Southwest 126th Avenue, Fort Lauderdale, Florida. Mr. Coulson lives approximately four blocks from the subject property. (Stipulated Facts). Petitioner, Jeffrey Price, resides at 5001 Southwest 126th Avenue, Fort Lauderdale, Florida. Mr. Price lives approximately four blocks west of the subject property. (Stipulated Facts). Each Petitioner submitted oral and written objections to the City of Cooper City during the review and adoption proceedings conducted by the City of Cooper City on the adoption of the comprehensive plan amendment which is the subject of this proceeding. Petitioners submitted objections to the Cooper City Planning and Zoning Board and the City of Cooper City Commission. The parties stipulated that Petitioners are "affected persons." Respondent, the City of Cooper City (hereinafter referred to as the "City"), is a municipality of the State of Florida. The City is located in Broward County, Florida. The City is a "local government" as defined in Section 163.3164(13), Florida Statutes. The City's address is 9090 Southwest 50th Place, Cooper City, Broward County, Florida. (Stipulated Facts). Intervenor, George H. Lange, Trustee, is the representative of a trust that owns the property which is the subject of the amendment at issue in this proceeding. The Amendment. By Ordinance Number 96-10-3, the City adopted an amendment, L.L.U.P.A. 96-S-1 (hereinafter referred to as the "Plan Amendment") to the Cooper City Land Use Plan. (Stipulated Facts). The Plan Amendment was adopted on October 22, 1996. (Stipulated Facts). Also adopted with the Plan Amendment was a Development Agreement establishing conditions for the development of the property which is the subject of the Plan Amendment (hereinafter referred to as the "Subject Property"). The Plan Amendment was also identified as Ordinance Number PS96-15 in some notices published by the City. (Stipulated Facts). The Plan Amendment changes the land use designation of approximately 8.45 acres of land from "Estate Residential" to "Commercial" for the eastern 3.82 acres and to "Community Facility" for the western 4 acres. (Stipulated Facts). The Plan Amendment is a "small scale amendment" pursuant to Section 163.3187(1(c), Florida Statutes. Therefore, the Plan Amendment was not reviewed by the Department of Community Affairs. (Stipulated Facts). The petition challenging the Plan Amendment was filed with the Division of Administrative Hearings within 30 days of October 22, 1996, the date the Plan Amendment was adopted. (Stipulated Facts). The City and Its Comprehensive Plan. The City is a relatively small municipality located in southwestern Broward County. Geographically, the City consists of approximately six-and-a-quarter square miles. The City is located directly to the east of Sunshine Ranches. The City and Sunshine Ranches are bounded on the north and south by the same roads: Griffin Road and Orange Road in the north; and Sheridan Street in the South. The western boundary of the City either abuts Sunshine Ranches or is separated by Flamingo Road. The City is bounded on the north by the Town of Davie. It is bounded on the south by Pembroke Pines. The City adopted the Cooper City Comprehensive Plan in 1991 (hereinafter referred to as the "Plan"). It consists of Volumes I, II, and III. Volume I contains the text of the Plan. Volumes II and III contain the data and analysis for the Plan. Pursuant to a Compliance Agreement entered into between the City and the Department of Community Affairs, the Plan was found to be "in compliance" as defined in Chapter 163, Part II, Florida Statutes. The City's Evaluation and Appraisal Report. The City was required to submit an Evaluation and Appraisal Report to the Department of Community Affairs on or before March 11, 1996. At the time of the formal hearing of this case, the City had prepared a draft of its Evaluation and Appraisal Report. See Respondent's and Intervenor's Exhibit 5. The draft of the City's Evaluation and Appraisal Report had not, however, been filed with the Department of Community Affairs. Sunshine Ranches. Sunshine Ranches is an unincorporated area of Broward County. It is generally bounded by the following roads: On the north by Orange Road and Griffin Road; On the south by Sheridan Street; On the west by Volunteer Road (148th Avenue); and On the east by Flamingo Road. Griffin Road abuts the entire length of the northern boundary of Sunshine Ranches. Orange Road is located immediately to the north of Griffin Road. The two roads are separated by a canal which runs the entire length of the northern boundary of Sunshine Ranches. The area to the north of Orange Road and Griffin Road is largely undeveloped. Flamingo Road on the eastern boundary of Sunshine Ranches is a six-lane road with a wide right-of-way. There is also a canal that runs the length of Flamingo Road. The canal separates Flamingo Road from Sunshine Ranches and other parcels of property located west of Flamingo Road. The right- of-way and canal are approximately 270 feet wide. The roads along the north, south, and west of Sunshine Ranches are contiguous with Sunshine Ranches' boundaries. On the east, Flamingo road is contiguous with most of Sunshine Ranches' eastern boundary. There are, however, several parcels of property located west of Flamingo Road which are a part of the City. Sunshine Ranches consists of approximately four square miles of land, or approximately 2,500 acres. Sunshine Ranches is a rural community with a significant number of small and large horse farms. There are also large homesites, the majority of which are five acres or larger. Many homesites have barns on them. A substantial number of homes in Sunshine Acres have animals, such as horses, chickens, and cows. Most of the roads in Sunshine Ranches are dirt roads. There are no sidewalks or traffic lights. There are a few fire hydrants in Sunshine Ranches. Most areas, however, are served by fire wells. There is a volunteer fire department consisting of two vehicles. The vehicles are leased from Broward County. Sunshine Ranches is a unique community in Broward County, both in terms of the size of lots and its rural, equestrian and agricultural character. There are signs at each entrance road into Sunshine Ranches that include the following: "Welcome to Sunshine Ranches: A Rural Estate Community." Most commercial enterprises within Sunshine Ranches are involved in equestrian-related activities. These activities consist of providing boarding facilities, riding schools, and horse training facilities. There is also a plant nursery located in Sunshine Ranches. Horses owned by non-residents of Sunshine Ranches are boarded at facilities in Sunshine Ranches. Non-residents also ride horses at facilities located in Sunshine Ranches. The land use designations for Sunshine Ranches consist of the following: "Rural Ranches," which allows one residential unit per two and one-half acres; and "Rural Estate," which allows one residential unit per one acre. The designation of Sunshine Ranches as Rural Ranches and Rural Estate was accomplished by an amendment to the Broward County comprehensive plan. It was the first area in Broward County to receive these designations. The designations resulted from a study conducted by Broward County to identify, preserve, and protect rural lands from urban encroachment. Property designated Rural Ranches may be used for "Community Facilities" also. Community Facilities include schools, fire stations, churches, etc. Churches require five- acre lots. There are several parcels located along Flamingo Road in Sunshine Ranches which are used by Churches. There are also schools located within Sunshine Ranches. Approximately 90% of Sunshine Ranches is designated Rural Ranches. Approximately 10% of Sunshine Ranches is designated Rural Estate. The portion of Sunshine Ranches designated Rural Estate is located along Giffin Road. Commercial Activities Around Sunshine Ranches. There are only a few commercial sites located near the boundaries of Sunshine Ranches. One is located on the western boundary of Sunshine Ranches at Volunteer Road and Griffin Road. This site is located on the side of Volunteer Road opposite to Sunshine Ranches. The site is, therefore, separated from Sunshine Ranches by the road and a canal. The largest amount of commercial property in the vicinity of Sunshine Ranches is located near the eastern boundary of Sunshine Ranches and Flamingo Road. At the corner of Flamingo Road and Giffin Road, immediately across Flamingo Road from the Subject Property, is Wal-Mart Shopping Center. Abutting Flamingo Road is the parking lot for the shopping center. The shopping center is located to the east of the parking lot. The shopping center is currently separated from Sunshine Ranches by approximately 700 feet of parking lot, the six-lanes of Flamingo Road, the canal located on the west side of Flamingo Road and the Subject Property. Immediately to the south of the Wal-Mart parcel are properties designated "Low 5" and "Low-Medium 10." Both designations allow residential uses. Flamingo Road and the canal on the western side of Flamingo Road act as a buffer between the existing commercial activities on Flamingo Road and Sunshine Ranches. Flamingo Road has historically acted as a dividing line between commercial activities and Sunshine Ranches. Commercial activities have been limited to the eastern side of Flamingo Road. On the west side of Flamingo Road there are several parcels of land which have been annexed as part of the City. None of these parcels are currently approved for commercial uses, however. They are all currently designated for residential ("Estate Residential") or Community Facilities. Most remain undeveloped. The Estate Residential designation allows use of the property for Community Facilities. Immediately to the south of the Subject Property is a 16-acres parcel designated Estate Residential. The largest parcel of property in the City located on the western side of Flamingo Road has been developed under the name of County Glen. There are no commercial sites within County Glen. Steps were taken in developing County Glen to minimize the impact of its higher density on Sunshine Ranches. These steps included restricting the number of traffic lights within the development and a limitation on density of the lots directly abutting Sunshine Ranches to one residential unit per acre. Although County Glen is more urban than Sunshine Ranches, steps were taken to buffer Sunshine Ranches from the impact of the development, consistent with development allowed west of Flamingo Road. The Need for Commercial Property in the City. Volume II of the Plan contains an analysis of the amount of commercial acreage within the City necessary to support the residents of the City. The analysis indicates that the City has one of the lowest ratios of commercial to residential acreage in Broward County. The ratio of commercial property to residential property was 7.2 percent. Although this ratio is lower than the ratio for Broward County, the City and the Department of Community Affairs agreed that the Plan, including the amount of acreage designated for commercial use, was "in compliance." The City has not amended its Plan to change this ratio. The City has adopted two Plan amendments reducing the amount of acreage in the City designated "Commercial" under the Plan. One amendment involved approximately 14.4 acres. The evidence failed to prove the size of the other parcel. Currently, there are a number of parcels of land designated Commercial under the Plan which are vacant. One is known as the Transflorida Bank Plaza. It is located to the east of the Subject Property at the corner of Griffin Road and 100th Avenue. The property was formerly a Winn Dixie Supermarket. Part of the property is still used for commercial uses. Another vacant commercial parcel is located on Pine Island Road across from David Poenick Community Center. This parcel is 6.5 acres. The City has approved use of this property for a 55,000 square-foot Albertson's. Another vacant commercial parcel is located on Stirling Road across from the Cooper City High School. On the east side of Flamingo Road, between Stirling Road and Giffin Road, there is a shopping center known as Countryside Shops. There are vacant parcels to the south and north of this property which could be used for commercial purposes. Finally, there are other vacant commercial parcels located in the central part of the City. The location of commercial property is an important factor in determining whether the property will actually be used. Therefore, the fact that there are vacant commercial properties located in the City fails to prove that there is not a need for the total amount of property designated Commercial under the Plan. Overall, the City has reduced the amount of property designated Commercial under the Plan. The amount of land being classified as Commercial pursuant to the Plan Amendment will not increase the amount of property originally designated Commercial pursuant to the Plan. The "Industrial" land use designation under the Plan allows some uses which may be considered commercial. This was true when the Plan was found to be in compliance, however, and the amount of land designated Commercial was still approved. The evidence failed to prove that the amount of property designated Commercial, including the portion of the property being designated Commercial pursuant to the Plan Amendment, is not supported by the data and analysis that supported the amount of commercial property found to be in compliance under the Plan when it was adopted. In light of the fact that the City has not submitted its Evaluation and Appraisal Report to the Department of Community Affairs for review as required by Section 163.3191, Florida Statutes, the amount of property designated Commercial in the originally approved Plan should not be relied upon to support the Plan Amendment. While the draft of the Evaluation and Appraisal Report prepared by the City indicates a need for additional commercial acreage in the City, the Department of Community Affairs has not reviewed the report. Nor has the City amended the Plan "based on the recommendations contained in the adopted evaluation and appraisal report " Section 163.3191 (4), Florida Statutes. The Subject Property and the Impact of the Plan Amendment. The Subject Property is currently classified as "Estate Residential" in the Plan. This classification allows the use of the Subject Property for residential purposes. The Subject Property is located at the southwestern corner of Flamingo Road and Griffin Road. It is located on the west of Flamingo Road. The Subject Property abuts the northeastern corner of Sunshine Ranches. Under the Plan Amendment, the eastern approximately four acres of the Subject Property will be designated Commercial (hereinafter referred to as the "Commercial Property"). This will be the first property on the west side of Flamingo Road designated for commercial uses. The Commercial Property will be separated from Sunshine Ranches by the remaining 3.82 acres of the Subject Property. This portion of the Subject Property will be designated Community Facilities (hereinafter referred to as the "Community Facilities Property"). The Subject Property abuts an area of Sunshine Ranches which consists of Rural Estate property. This designation makes up approximately 10 percent of the property in Sunshine Ranches. The Plan Amendment allows stormwater facilities required for the Commercial Property and the Community Facilities Property to be located on the Community Facilities Property. I. Compatibility of Land Classifications with Surrounding Classifications; The Impact of the Plan Amendment on Sunshine Ranches. Policy 1.1.3 of the Plan provides that the compatibility of a proposed land use with existing land uses is a primary consideration in determining whether a land use should be allowed. Residential and commercial land uses are not inherently compatible. Despite this fact, residential and commercial land uses often abut each other. Where this occurs, steps can be taken to minimize the negative impact of the commercial use of property on the residential use of adjoining property. Flamingo Road and the adjacent canal provide a good boundary and buffer between rural Sunshine Ranches and the urbanized area of the City. The Plan recognizes this fact by requiring that the City conduct a study of the application of an urban growth boundary line for areas of the City located west of Flamingo Road. Regardless of the size of the Commercial Property, the designation of the Commercial Property for commercial uses would be the first commercially authorized use of property west of Flamingo Road or inside any of the other boundary roads of Sunshine Ranches. Comparing the uses allowed on the Commercial Property with the uses of property in Sunshine Ranches, it is evident that the uses are not compatible. This conclusion, however, does not necessarily mean that the City's approval of the Commercial Property for commercial uses is not "in compliance." Although the uses allowed on the Commercial Property and in Sunshine Ranches are incompatible, there are steps which can be taken to minimize the negative impacts which occur when commercial activities approach residential activities. One of those steps was taken when the City approved the Plan Amendment with the Community Facilities Property located between the Commercial Property and Sunshine Ranches. The Community Facilities Property, in conjunction with other measures, can be an effective buffer between the Commercial Property and Sunshine Ranches. The Development Agreement adopted by the City was adopted, in part, to address compatibility concerns. The Development Agreement eliminates various uses of the Commercial Property which would otherwise be allowed by the City's zoning for commercial parcels. The Development Agreement also provides that the Community Facilities Property will be dedicated to community facilities uses once the development of the Commercial Property is approved. The Development Agreement also includes certain development standards and requirements intended to reduce the impact on Sunshine Ranches due to incompatibility, such as requiring berms and landscaping to buffer the Subject Property from Sunshine Ranches. Horse trails along the Subject Property are to be included in the development. Land development regulations will require that steps be taken in the development of the Subject Property to reduce the negative impact on adjoining property, including Sunshine Ranches. The designation of the Commercial Property for commercial uses could, however, have a "domino affect" on other property located west of Flamingo Road. Once one parcel is approved, it will be difficult for the City not to approve similarly situated parcels. The Plan Amendment will increase the expectation of others who own property west of Flamingo Road that the land- use designation of their property can be changed to Commercial. The evidence, however, failed to prove that there are other parcels of property located west of Flamingo Road which are sufficiently similar to the Subject Property that they would be allowed to be used for commercial purposes. The evidence also failed to prove that any parcels of property located west of Flamingo Road which may be considered in the future for commercial uses cannot have conditions imposed on their use for commercial purposes which will adequately protect Sunshine Ranches from an incompatible use. The Plan Amendment could also negatively impact the ability to use adjoining property for residential purposes. In particular, the sixteen-acre parcel located immediately to the south of the Subject Property will more difficult to develop as residential if the Plan Amendment is approved. The evidence failed to prove, however, that with effective buffering adjoining property cannot be used for residential purposes. The evidence failed to prove that, with proper measures to reduce the impacts of the development on the Subject Property on Sunshine Ranches, the development of the Subject Property allowed by the Plan Amendment would necessarily be incompatible with Sunshine Ranches. The evidence failed to prove that the uses allowed for the Community Facilities Property are incompatible with the uses allowed in Sunshine Ranches. The Availability of Infrastructure. The evidence failed to prove that the Plan Amendment is not in compliance due to the lack of available vehicle trips on roads that would be impacted by development of the Subject Property. This issue, which involves the question of whether development of the Subject Property is consistent with relevant transportation levels of service, is one that should be considered at the time a development order is sought. It is not an issue for consideration in determining whether a land use designation amendment is in compliance. The same conclusion applies to other services such as sewer and water, which currently are available for the Subject Property. Urban Sprawl, the State and Regional Plan, Internal Inconsistency, and Inconsistency with the Broward County Comprehensive Plan. The evidence failed to support allegations concerning urban sprawl, the state and regional plans, internal inconsistencies, and inconsistencies with the Broward County comprehensive plan.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Administration Commission finding the Plan Amendment is invalid because it was adopted in violation of Section 163.3187(6), Florida Statutes, and is not "in compliance." DONE AND ENTERED this 23rd day of July, 1997, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of July, 1997. COPIES FURNISHED: Richard Grosso, General Counsel Scott SznitRen, Certified Law Intern ENVIRONEMENTAL and LAW USE LAW CENTER, INC. Civil Law Clinic Shepard Broad Law Center Nova Southeastern Center 3305 College Avenue Fort Lauderdale, Florida 33314 Alan Ruf, City Attorney City of Cooper City 9090 Southwest 50th Place Cooper City, Florida 33328 Richard G. Coker, Jr., Esquire BRADY and CORER 1318 Southeast 2nd Avenue Fort Lauderdale, Florida 33316 Barbara Leighty, Clerk Administration Commission Growth Management and Strategic Planning 2105 Capitol Tallahassee, Florida 32399 Gregory Smith, Esquire Administration Commission 209 Capitol Tallahassee, Florida 32399-0001
Findings Of Fact The cities of Sebring, Monticello, Mascotte, Greenville and Vernon, and other cities in Florida made application to DCA for block grants under the Small Cities Community Development Block Grant (FFY) 1987, Commercial Revitalization. The deadline for submission of those applications was February 26, 1988. The applications were submitted under the auspices of the application manual related to that program, a copy of which may be found as Respondent's Exhibit 1 admitted into evidence. This application manual is drawn in keeping with requirements of the Community Development Block Grant under Title I of the Housing and Community Development Act of 1974, as amended, and under Section 290, Florida Statutes, and Chapter 9B-43, Florida Administrative Code. The references in the Florida Statutes specifically are at Sections 290.0401-290.049, Florida Statutes, known as the "Florida Small Cities Community Development Block Program Act." The applications by the various cities previously described were timely made. In accordance with the instructions set forth in the application manual, and per the review procedures of the DCA, each named community received a score of 10 points for the adoption of a community redevelopment plan and an additional 10 points for creation of a community redevelopment agency. To comply with the application form and receive those points it was necessary for the clerk of the community to give certification that those items were on file in the clerk's office. There was a further necessity to sign, date and seal the response. Following the receipt of the applications from the cities, the DCA received a complaint from a representative of Monticello concerning the existence of some possible irregularities related to the applications of Vernon, Mascotte and Greenville. Those claims involved the issue of whether those cities had adopted redevelopment plans and established redevelopment agencies at the application deadline on February 26, 1988. In the face of the allegations the DCA determined to follow-up and wrote to each city, namely the cities of Mascotte, Vernon, Greenville, Monticello and Sebring. Copies of the correspondence may be found in the Composite Exhibit Number 7 by the Respondent. The correspondence described the award of 10 points for creation of a redevelopment agency and 10 additional joints for creation of a redevelopment plan under authority of Chapter 163, Florida Statutes. It further described the need for certification by the Clerk of the town to gain the award of points. The correspondence went on to describe the possibility that information that would be needed to document the existence of the community redevelopment agency and the approval of the community redevelopment plan might not be on file in the community as required. As a consequence, each community was requested to confirm that documentation existed in its file by submission of the following information within seven (7) working days. A copy of the ordinance appointing a board of commissioners of the community redevelopment agency (pursuant to s. 163.356(2), F.S.) or a copy of the resolution declaring the member of the governing body as the community redevelopment agency (pursuant to s. 163.357, F.S.); and A copy of the City Community Redevelopment Plan and documentation that is was reviewed and adopted pursuant to s. 163.360(1)-(9), F.S. Absent the submission of this documentation the cities were told that they would not receive the points for establishing the redevelopment agencies and plans. In turn, each of the subject communities responded to the requirements by sending copies of minutes, ordinances and resolutions related to adoption of plans and in creation of agencies. Copies of those documents may be found as Respondent's Composite Exhibit 8. They all evidence compliance with the February 26, 1988 deadline for adoption of plans and creation of agencies. Having received this Information, DCA made its evaluation and on May 12, 1988, noticed the various applicants of its decision concerning the applications for grant money. Copies of the individual correspondence related to the subject cities who have been named may be found as part of the Respondent's Composite Exhibit 6 admitted into evidence. Attached to the correspondence was a breakdown of total points awarded, a description of the grant request and the money assigned in response to that request, all by way of stated intended agency action. The effect of the point awards was to disallow the grants sought by Sebring and Monticello in that there were insufficient funds to honor their applications and others with higher point totals. The stated agency action would allow the cities of Vernon, Greenville and Mascotte to receive all monies sought. In the face of this decision to award the proceeds to Vernon, Greenville and Mascotte to the exclusion of the cities of Sebring and Monticello the latter cities made timely petition to challenge the agency decision and in particular the decision to award 20 points to Vernon, Greenville and Mascotte for establishment of redevelopment plans and the creation of redevelopment agencies. Even if the 20 points were disallowed for Vernon, they would still be entitled to the full proceeds. That would not be the situation with Greenville and Mascotte, in that they would be replaced by Sebring and Monticello, Sebring as to its entire request of $575,000 and Monticello as to part of its request in the amount of $76,518 of the $500,000 sought. The city of Mascotte also filed challenges directed to Monticello and Sebring in the points assigned them for community redevelopment plans and agencies in the applications by those communities. No proof was offered at the hearing in futherance of this claim. The proof submitted was not sufficient to establish that there was any impropriety by the City of Vernon in urging the DCA to award the 20 points in question. The proof that was presented in the course of the hearing related to the activities of the cities of Mascotte and Greenville in establishing community redevelopment agencies and adopting redevelopment plans raised some suspicions about whether those activities had occurred prior to the February 26, 1988 deadline, but it was not complete enough to prove that the agencies had not been established and the plans had not been adopted prior to the February 26, 1988 date.
The Issue The issue is whether the actions of Florida Housing concerning the review and scoring of the responses to Request for Applications 2019-102 (“RFA”), titled “Community Development Block Grant--Disaster Recovery (‘CDBG- DR’) to be Used in Conjunction with Tax-Exempt MMRB and Non- Competitive Housing Credits in Counties Deemed Hurricane Recovery Priorities,” were contrary to the agency’s governing statutes, rules, policies, or the RFA specifications.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: THE PARTIES Berkeley is an applicant in the RFA that requested an allocation of $6,500,000 in CDBG Development funding; $2,500,000 in CDBG Land Acquisition funding; and $844,699 in non-competitive housing credits. The Berkeley Application, assigned number 2020-017D, was preliminarily deemed ineligible for consideration for funding. Brisas is an applicant in the RFA that requested an allocation of $5,000,000 in CDBG Development funding and $1,674,839 in non-competitive housing credits. The Brisas Application, assigned number 2020-056D, was preliminarily deemed eligible but was not selected for funding under the terms of the RFA. Northside is an applicant in the RFA that requested an allocation of $7,300,000 in CDBG Development funding; $1,588,014 in non-competitive housing credits; and $24,000,000 in Multifamily Mortgage Revenue Bonds (“MMRB”). The Northside Application, assigned number 2020-024D, was preliminarily deemed eligible but was not selected for funding under the terms of the RFA. Beacon Place is an applicant in the RFA that requested an allocation of $6,925,500 in CDBG Development funding; $4,320,000 in CDBG Land Acquisition funding; $1,764,203 in non-competitive housing credits; and $24,000,000 in MMRB. The Beacon Place Application, assigned number 2020-045DB, was preliminarily deemed eligible but was not selected for funding under the terms of the RFA. Bella Vista is an applicant in the RFA that requested an allocation of $8,000,000 in CDBG Development funding; $1,450,000 in CDBG Land Acquisition funding; $609,629 in non-competitive housing credits; and $13,000,000 in MMRB. The Bella Vista Application, assigned number 2020-038DB, was preliminarily deemed eligible but was not selected for funding under the terms of the RFA. Solaris is an applicant in the RFA that requested an allocation of $3,420,000 in CDBG Development funding; $4,500,000 in CDBG Land Acquisition funding; and $937,232 in non-competitive housing credits. The Solaris Application, assigned number 2020-039D, was deemed eligible and preliminarily selected for funding under the terms of the RFA. Metro Grande is an applicant in the RFA that requested an allocation of $3,175,000 in CDBG Development funding and $1,041,930 in non-competitive housing credits. The Metro Grande Application, assigned number 2020-041D, was deemed eligible and preliminarily selected for funding under the terms of the RFA. Sierra Bay is an applicant in the RFA that requested an allocation of $3,650,000 in CDBG Development funding; $3,300,000 in CDBG Land Acquisition funding; $1,074,173 in non-competitive housing credits; and $16,000,000 in MMRB. The Sierra Bay Application, assigned number 2020-040DB, was deemed eligible and preliminarily selected for funding under the terms of the RFA. Bembridge is an applicant in the RFA that requested an allocation of $7,800,000 in CDBG Development funding; $564,122 in non-competitive housing credits; and $10,100,000 in MMRB. The Bembridge Application, assigned number 2020-046DB, was deemed eligible and preliminarily selected for funding under the terms of the RFA. East Pointe is an applicant in the RFA that requested an allocation of $4,680,000 in CDBG Development funding and $690,979 in non-competitive housing credits. The East Pointe Application, assigned number 2020-053D, was deemed eligible and preliminarily selected for funding under the terms of the RFA. Florida Housing is a public corporation organized pursuant to Chapter 420, Part V, Florida Statutes, and, for purposes of these consolidated cases, is an agency of the State of Florida. Florida Housing is tasked with distributing a portion of the CDBG-DR funding allocated by the U.S. Department of Housing and Urban Development (“HUD”), pursuant to the State of Florida Action Plan for Disaster Recovery. THE COMPETITIVE APPLICATION PROCESS AND RFA 2019-102 Florida Housing is authorized to allocate low-income housing tax credits and other named funding by section 420.507(48). Florida Housing has adopted Florida Administrative Code Chapter 67-60 to govern the competitive solicitation process. Rule 67-60.009(1) provides that parties wishing to protest any aspect of a Florida Housing competitive solicitation must do so pursuant to section 120.57(3), Florida Statutes. Funding is made available through a competitive application process commenced by the issuance of a request for applications. Rule 67-60.009(4) provides that a request for application is considered a “request for proposal” for purposes of section 120.57(3)(f). The RFA was issued on July 30, 2019, with responses due on August 27, 2019. The RFA was modified four times and the application deadline was extended to September 24, 2019. No challenges were made to the terms and specifications of the RFA. Section Five of the RFA included a list of 48 “eligibility items” that an applicant was required to satisfy to be eligible for funding and considered for funding selection. Applications that met the eligibility standards would then be awarded points for satisfying RFA criteria, with the highest scoring applications being selected for funding. No total point items are in dispute. Proximity Point items are contested as to the Beacon Place, East Pointe, and Bembridge Applications. Applicants could select whether they would be evaluated as Priority I, II, or III applications. All of the parties to these consolidated cases identified themselves as Priority I applications. Through the RFA, Florida Housing seeks to award an estimated $76,000,000 of CDBG Land Acquisition Program funding to areas impacted by Hurricane Irma, and in areas that experienced a population influx because of migration from Puerto Rico and the U.S. Virgin Islands due to Hurricane Irma. Florida Housing will award up to $66,000,000 for CDBG Development funding and an additional $10,000,000 for CDBG Land Acquisition Program funding. Applicants were not required to request CDBG Land Acquisition Program funding. Forty-four applications were submitted in response to the RFA. A Review Committee was appointed to review the applications and make recommendations to Florida Housing’s Board of Directors (the “Board”). The Review Committee found 34 applications eligible for funding. The Review Committee found 8 applications ineligible, including that of Berkeley. Two applications were withdrawn. The Review Committee developed charts listing its eligibility and funding recommendations to be presented to the Board. On December 13, 2019, the Board met and accepted the recommendations of the Review Committee. The Board preliminarily awarded funding to 12 applications, including those of Sierra Bay, Solaris, Metro Grande, East Pointe, and Bembridge. Petitioners Berkeley, Brisas, Northside, Beacon Place, and Bella Vista timely filed Notices of Protest and Petitions for Formal Administrative Hearing. THE BERKELEY APPLICATION As an eligibility item, the RFA required applicants to identify an Authorized Principal Representative. According to the RFA, the Authorized Principal Representative: must be a natural person Principal of the Applicant listed on the Principal Disclosure Form; must have signature authority to bind the Applicant entity; (c) must sign the Applicant Certification and Acknowledgement form submitted in this Application; (d) must sign the Site Control Certification form submitted in this Application; and (e) if funded, will be the recipient of all future documentation that requires a signature. As an eligibility item, the RFA required applicants to submit an Applicant Certification and Acknowledgment form executed by the Authorized Principal Representative. As an eligibility item, the RFA also required applicants to submit a Site Control Certification form executed by the Authorized Principal Representative. In section 3.e.(1) of Exhibit A of the RFA, the applicant is directed to enter the contact information of its Authorized Principal Representative. Berkeley entered the name, organization, and contact information for Jennie D. Lagmay as its Authorized Principal Representative, in response to section 3.e.(1). The name of Jennie D. Lagmay was not disclosed on the Principal Disclosure form required by the RFA. The Applicant Certification and Acknowledgment form and the Site Control Certification form were executed by Jonathan L. Wolf, not Jennie D. Lagmay, the designated Authorized Principal Representative. On both forms, Mr. Wolf is identified as “Manager of Berkeley Landing GP, LLC; General Partner of Berkeley Landing, Ltd.” Jonathan L. Wolf is listed on the Principal Disclosure Form. Aside from section 3.e.(1) of Exhibit A, Jennie D. Lagmay’s name is not found in the Berkeley Application. Florida Housing determined that the Berkeley Application was ineligible for an award of funding for three reasons: 1) the Authorized Principal Representative listed was not disclosed on the Principal Disclosure form; 2) the Applicant Certification and Acknowledgement form was not signed by the Authorized Principal Representative; and 3) the Site Control Certification was not signed by the Authorized Principal Representative. Two other applications for this RFA were found ineligible for identical reasons: Thornton Place, Application No. 2020-020D; and Berkshire Square, Application No. 2020-034D. In these, as in the Berkeley Application, Jennie D. Lagmay was named as the Authorized Principal Representative in section 3.e.(1) of Exhibit A, but Jonathan L. Wolf executed the Applicant Certification and Acknowledgement form and the Site Control Certification form as the Authorized Principal Representative. Berkeley concedes it made an error in placing the name of Ms. Lagmay in section 3.e.(1), but argues that this constituted a minor irregularity that should have been waived by Florida Housing. Berkeley contends that the entirety of its Application makes plain that Jonathan D. Wolf is in fact its Authorized Principal Representative. Berkeley argues that Florida Housing should waive the minor irregularity and determine that the Berkeley Application is eligible for funding. Berkeley points out that only two members of the Review Committee, Rachel Grice and Heather Strickland, scored the portions of the Berkeley Application that led to the ineligibility recommendation. Ms. Grice determined that the Authorized Principal Representative listed in the Berkeley Application was not disclosed on the Principal Disclosure form. Ms. Strickland determined that neither the Applicant Certification and Acknowledgement form nor the Site Control Certification form was executed by the Authorized Principal Representative. Neither Ms. Grice nor Ms. Strickland conducted a minor irregularity analysis for the Berkeley Application. Rule 67-60.008, titled “Right to Waive Minor Irregularities,” provides as follows: Minor irregularities are those irregularities in an Application, such as computation, typographical, or other errors, that do not result in the omission of any material information; do not create any uncertainty that the terms and requirements of the competitive solicitation have been met; do not provide a competitive advantage or benefit not enjoyed by other Applicants; and do not adversely impact the interests of the Corporation or the public. Minor irregularities may be waived or corrected by the Corporation. Berkeley contends that because a minor irregularity analysis was not conducted by the Review Committee members, the Board was deprived of a necessary explanation for the preliminary recommendations of Ms. Grice and Ms. Strickland. Marisa Button, Florida Housing’s Director of Multifamily Allocations, agreed that the Review Committee members did not perform a minor irregularity analysis but testified that none was required given the nature of the discrepancy in the Berkeley Application. Ms. Button performed a minor irregularity analysis as Florida Housing’s corporate representative in this proceeding and concluded that the error could not be waived or corrected without providing an unfair competitive advantage to Berkeley. Ms. Button testified that the fact that the person identified as the Authorized Principal Representative was not the same person who signed the certification forms could not be considered a minor irregularity because the application demonstrated conflicting and contradictory information, creating uncertainty as to the applicant’s intentions. She stated that Florida Housing is required to limit its inquiry to the four corners of the application. Ms. Button stated that Florida Housing cannot take it upon itself to decide what the applicant intended when the information provided in the application is contradictory. Berkeley points to the fact that the Application Certification and Acknowledgement form, signed by Mr. Wolf, includes the following language: “The undersigned is authorized to bind the Applicant entity to this certification and warranty of truthfulness and completeness of the Application.” Berkeley argues that it should have been clear to Florida Housing that Mr. Wolf is the person authorized to bind the company and that the inclusion of Ms. Lagmay’s name in section 3.e.(1) was in the nature of a typographical error. Florida Housing points out that the Application Certification and Acknowledgement form also includes the following language below the signature line: “NOTE: Provide this form as Attachment 1 to the RFA. The Applicant Certification and Acknowledgement form must be signed by the Authorized Principal Representative stated in Exhibit A.” Florida Housing notes that the Site Control Certification form includes similar language: “This form must be signed by the Authorized Principal Representative stated in Exhibit A.” Berkeley contends that Florida Housing was well aware that Jonathan L. Wolf has been the named Authorized Principal Representative on multiple applications filed under the umbrella of Wendover Housing Partners, the general developer behind Berkeley. In at least one of those previous applications, Ms. Lagmay, an employee of Wendover Housing Partners, was identified as the “contact person.” Ms. Button responded that Review Committee members are specifically prohibited from using personal knowledge of a general development entity in a specific application submitted by a single purpose entity. She further testified that if Florida Housing employees were to use their personal knowledge of an experienced developer to waive errors in a specific application, applicants who had not previously submitted applications would be at a competitive disadvantage. Ms. Button testified that Berkeley was established as a single purpose entity in accordance with the RFA’s requirements. She testified that she has known general developers to structure these single purpose entities in different ways, depending on the requirements of an RFA. An applicant might designate an employee, such as Ms. Lagmay, as a principal to give her experience as a developer. Again, Ms. Button emphasized that Florida Housing is not in a position to decide what the applicant “really meant” when there is a discrepancy in the information provided. Ms. Button testified that Florida Housing has determined in prior RFAs that an applicant was ineligible because the person identified as the Authorized Principal Representative was not the same person who signed the certification forms. Florida Housing rightly concluded that there are only two possible ways to interpret the Berkeley Application. If Ms. Lagmay was the Authorized Principal Representative, then the application is nonresponsive because she was not listed on the Principal Disclosure form and she did not sign the required certification forms. If Ms. Lagmay was not the Authorized Principal Representative, the application is nonresponsive because no Authorized Principal Representative was identified. There is no way to tell from the four corners of the application which of these alternatives is the correct one. Florida Housing cannot step in and cure the defect in the application by making its own educated guess as to the intended identity of the Authorized Principal Representative. Berkeley has failed to demonstrate that Florida Housing’s preliminary determination of ineligibility was contrary to the applicable rules, statutes, policies, or specifications of the RFA, or was clearly erroneous, contrary to competition, arbitrary, or capricious. THE SIERRA BAY APPLICATION The parties stipulated to the facts regarding the Sierra Bay Application, which are incorporated into this Recommended Order. Florida Housing deemed the Sierra Bay Application eligible and, pursuant to the terms of the RFA, preliminarily selected Sierra Bay for funding. In order to demonstrate site control, the RFA required execution of the Site Control Certification form. Site control documentation had to be included in the application. One way to demonstrate site control was to include an “eligible contract.” The RFA required that certain conditions be met in order to be considered an “eligible contract.” One of those requirements was that the contract “must specifically state that the buyer’s remedy for default on the part of the seller includes or is specific performance.” Sierra Bay acknowledged that the site control documentation included within its application did not meet the “eligible contract” requirement because it failed to include language regarding specific performance as a remedy for the seller’s default. Sierra Bay agreed that the omission of the specific performance language was not a minor irregularity and that Sierra Bay’s Application is ineligible for funding under the terms of the RFA. THE SOLARIS APPLICATION The RFA specified that a Local Government, Public Housing Authority, Land Authority, or Community Land Trust must hold 100 percent ownership in the land of any qualifying Priority I application. The RFA defined “Community Land Trust” as: A 501(c)(3) which acquires or develops parcels of land for the primary purpose of providing or preserving affordable housing in perpetuity through conveyance of the structural improvement subject to a long term ground lease which retains a preemptive option to purchase any such structural improvement at a price determined by a formula designed to ensure the improvement remains affordable in perpetuity. The RFA provided that if a Community Land Trust is the Land Owner, the Community Land Trust must provide the following documentation as Attachment 2 to the application to demonstrate that it qualifies as a Community Land Trust: The Community Land Trust must provide its Articles of Incorporation or Bylaws demonstrating it has existed since June 28, 2018 or earlier and that a purpose of the Community Land Trust is to provide or preserve affordable housing; and The Community Land Trust must provide a list that meets one of the following criteria to demonstrate experience of the Community Land Trust with owning property: (i) at least two parcels of land that the Community Land Trust currently owns; or (ii) one parcel of land that the Community Land Trust owns, consisting of a number of units that equals or exceeds at least 25 percent of the units in the proposed Development. The RFA required that the proposed development must be affordable in perpetuity. For purposes of the RFA, “perpetuity” means 99 years or more. Solaris identified Residential Options of Florida, Inc. (“Residential Options”), as the Community Land Trust owner in its Priority 1 Application. Attachment 2 of the Solaris Application included the Articles of Incorporation of Residential Options (“Original Articles”), filed with the Division of Corporations on July 30, 2014. The purpose of the corporation as stated in the Original Articles was as follows: Said corporation is organized exclusively for charitable, religious, educational, and scientific purposes, including for such purposes, the making of distributions to organizations that qualify as exempt organizations under section 501(c)(3) of the Internal Revenue Code, or the corresponding section of any future federal tax code. Attachment 2 of the Solaris Application also included Amended and Restated Articles of Incorporation of Residential Options (“Amended Articles”), filed with the Division of Corporations on September 20, 2019. The Amended Articles retained the boilerplate statement of purpose of the Original Articles, but added the following paragraph: This shall include the purpose of empowering individuals with intellectual and developmental disabilities to successfully obtain and maintain affordable and inclusive housing of their choice and to provide affordable housing and preserve the affordability of housing for low- income or moderate income people, including people with disabilities, in perpetuity. Attachment 2 of the Solaris Application also included the Articles of Incorporation of ROOF Housing Trust, Inc. (“ROOF Housing Trust”) filed with the Division of Corporations on July 17, 2017. The purpose of the corporation as stated in these Articles includes the following: “to acquire land to be held in perpetuity for the primary purpose of providing affordable housing for people with developmental disabilities.” Finally, Attachment 2 of the Solaris Application included Articles of Merger, which were filed with the Division of Corporations on September 10, 2019. The Articles of Merger indicated that the Residential Options and ROOF Housing Trust had merged, with Residential Options standing as the surviving corporation. The petitioners contesting the Solaris Application raise several issues. The first issue is whether the RFA requires only that the entity named as the Community Land Trust have been in existence in some form as of June 28, 2018, or whether the entity had to exist as a Community Land Trust as of that date. The Community Land Trust named in the Solaris Application, Residential Options, existed prior to June 28, 2018, but not as a Community Land Trust. The second issue is whether the June 28, 2018, date applies only to the existence of the Community Land Trust or whether the RFA requires that the Community Land Trust have been in existence and have had a stated purpose to provide or preserve affordable housing and have met the ownership experience criteria as of June 28, 2018. It is questionable whether Solaris would be eligible for funding if the RFA required the latter, because Residential Options did not have a stated purpose of providing or preserving affordable housing prior to its merger with ROOF Housing Trust, at least no such purpose as could be gleaned from the four corners of the Solaris Application. The third issue is whether the RFA’s definition of “Community Land Trust” requires the qualifying entity to have existing ground leases at the time of the application. Florida Housing and Solaris concede that Residential Options did not have operative ground leases at the time Solaris submitted its application. Hurricane Irma struck Puerto Rico and Florida in September 2017. Ms. Button testified that in creating this RFA, Florida Housing wanted to weed out opportunistic community land trusts created only for the purpose of obtaining this funding. Florida Housing initially proposed an RFA requirement that the community land trust have existed as of September 2017, but discovered through workshops with interested parties that the early date would exclude legitimate Community Land Trusts that had been established in response to the storm. Ms. Button testified that Florida Housing’s intent was to make this RFA as inclusive as practicable. Florida Housing therefore selected June 28, 2018, as a date that would exclude opportunists without penalizing the genuine responders to the natural disaster. Both Florida Housing and Solaris point to the text of the RFA requirement to demonstrate that the date of June 28, 2018, should be read to apply only to whether the Community Land Trust existed as of that date. Solaris argues that the RFA states three independent criteria for eligibility: 1) that the Community Land Trust “has existed since June 28, 2018 or earlier”; 2) that a purpose of the Community Land Trust is1 to provide or preserve affordable housing; and 3) the Community Land Trust must demonstrate its property ownership experience, one means of doing which is to name at least two parcels of land that the Community Land Trust currently owns. Florida Housing argues that Solaris met the first criterion by providing its Articles of Incorporation showing it has existed since July 30, 2014. Florida Housing argues that Solaris met the second criterion by providing its Amended and Restated Articles of Incorporation, which stated the purpose of providing or preserving affordable housing in perpetuity. Florida Housing argues that Solaris met the third criterion by identifying two properties in Immokalee, Independence Place, and Liberty Place as parcels that it currently owns. Florida Housing thus reached the conclusion that Residential Options met the definition of a Community Land Trust in the RFA as of June 28, 2018. Florida Housing argues that, according to the definition in the RFA, a Community Land Trust must be a 501(c)(3) corporation, which Residential Options clearly is. It must acquire or develop parcels of land, which it has done. Finally, it must have the “primary purpose of providing or preserving affordable housing in perpetuity through conveyance of the structural improvement subject to a long term ground lease.” Ms. Button testified that Florida Housing’s interpretation of the RFA’s Community Land Trust definition was that if Residential Options had the primary purpose of providing affordable housing in perpetuity through the use of long term ground leases, the definition has been met even if Residential Options had not actually entered into any ground leases at the 1 Both Florida Housing and Solaris emphasize that the second criterion is stated in the present tense, which suggests that it does not intend a backward look to June 28, 2018. time it submitted its application. This is not the only way to read the RFA’s definition, but it is not an unreasonable reading, particularly in light of Florida Housing’s stated intent to make the RFA as inclusive as possible in terms of the participation of legitimate community land trusts. Sheryl Soukup, the Executive Director of Residential Options, testified via deposition. Ms. Soukup testified that in 2017, Residential Options realized there was a need for housing for people with disabilities and decided to become a nonprofit housing developer of properties that would be kept affordable in perpetuity. To that end, ROOF Housing Trust was created to act as the community land trust for the properties developed by Residential Options. The two companies had identical Boards of Directors and Ms. Soukup served as Executive Director of both entities. In its application to the IRS for 501(c)(3) status, ROOF Housing Trust included the following: The organization does not own any property yet. ROOF Housing Trust intends to own vacant land, single family homes, and multi-family units. Some of the units will be provided as rental units. ROOF Housing Trust will sell some of the houses for homeownership, while retaining the land on which they are located. The land will be leased to homeowners at a nominal fee to make the purchase price affordable, using the community land trust model. Ground leases and warranty deeds not been developed yet [sic], but will be based on the sample documents provided by the Florida Community Land Trust Institute.[2] Ms. Soukup described ROOF Housing Trust as “a vehicle by which Residential Options of Florida could act as a community land trust…. [I]t was always the intention of Residential Options of Florida to develop and put into 2 The ROOF Housing Trust 501(c)(3) application was not a part of the Solaris Application. It was included as an exhibit to Ms. Soukup’s deposition. a community land trust property so that it would remain affordable in perpetuity for use by people of intellectual and development [sic] disabilities.” Residential Options acquired the aforementioned Independence Place and Liberty Place properties but never conveyed ownership to ROOF Housing Trust. Residential Options acted as a de facto community land trust. No ground leases have yet been entered into because the properties are at present rented directly by Residential Options to persons with developmental disabilities. Ms. Soukup testified that at the time ROOF Housing Trust was created, the Board of Residential Options was undecided whether to create a separate entity to act as a community land trust or to incorporate that function into the existing entity. The decision to incorporate ROOF Housing Trust was based on the Board’s intuition that a separate corporation would “allow us the most flexibility in the future.” In any event, Residential Options and ROOF Housing Trust were functionally the same entity. Ms. Soukup testified that plans to merge the two companies emerged from a situation in which Collier County refused to allow Residential Options to convey its two properties to ROOF Housing Trust. The Board that controlled both companies decided that there was no point in maintaining separate legal entities if ROOF Housing Trust could not perform its main function. As noted above, Articles of Merger were filed on September 10, 2019. Northside points to minutes from Residential Options’s Board meetings in August and September 2019, as indicating that the Board itself did not believe that Residential Options was a community land trust prior to the merger with ROOF Housing Trust. Northside contends that the September 2019 merger was initiated and completed mainly because Residential Options had been approached about serving as the Community Land Trust for the applications of Solaris and Sierra Bay in this RFA. Northside points to the “frenzied activity” by Residential Options to create an entity meeting the definition of Community Land Trust in the days just before the September 24, 2019, application deadline. Northside argues that Residential Options is the very kind of opportunistic community land trust that the June 28, 2018, date of creation was intended to weed out. Northside’s argument is not persuasive of itself, but it does point the way to an ultimate finding as to the Solaris Application. Both Florida Housing and Solaris gave great emphasis to Ms. Soukup’s testimony to refute the suggestion that Residential Options acted opportunistically. Ms. Soukup was a credible witness. Her explanation of the process by which Residential Options first created then merged with ROOF Housing Trust dispelled any suggestion that Residential Options was a community land trust created solely to cash in on this RFA. The problem is that Ms. Soukup’s explanation was not before the Review Committee when it evaluated the Solaris Application. The only information about Residential Options that the Review Committee possessed was Attachment 2 of the Solaris Application. The dates of the merger documents and Amended Articles certainly give some credence to the suspicions voiced by Northside. However, the undersigned is less persuaded by the implications as to the intentions of Residential Options than by the contradictions between Florida Housing’s statements of intent and its reading of the RFA in relation to the Solaris Application. The decision to find the Solaris Application eligible for funding founders on the first issue stated above: whether the RFA requires only that the Community Land Trust have been in existence in some form as of June 28, 2018, or whether it had to exist as a Community Land Trust as of that date. Ms. Button testified that the June 28, 2018, date was settled upon as a way of including community land trusts created in the wake of Hurricane Irma, while excluding those created to cash in on this RFA. During cross- examination by counsel for Northside, Ms. Button broadened her statement to say that Florida Housing’s intention was to exclude entities that had not been involved in affordable housing at all prior to June 28, 2018. Nonetheless, the RFA language is limited to Community Land Trusts. The RFA states: “The Community Land Trust must provide its Articles of Incorporation or Bylaws demonstrating that it has existed since June 28, 2018 or earlier…” The Solaris Application shows that Residential Options existed prior to June 28, 2018, but not as a Community Land Trust. Residential Options did not become a Community Land Trust until it completed its merger with ROOF Housing Trust and filed the Amended Articles on September 20, 2019. Ms. Button’s statement of intent is accepted as consistent with the plain language of the RFA: the date of June 28, 2018, excludes Community Land Trusts created subsequently. It is inconsistent for Florida Housing to also read the RFA language to say that the qualifying entity need not have existed as a Community Land Trust prior to June 28, 2018. It would be arbitrary for Florida Housing to set a date for the creation of Community Land Trusts then turn around and find that the date does not apply to this particular Community Land Trust. Ms. Soukup’s testimony was that Residential Options and ROOF Housing Trust were effectively a single entity and that Residential Options was in fact operating as a community land trust prior to the September 10, 2019, merger. However, Ms. Soukup’s explanation was not before the Review Committee, which was limited to one means of ascertaining whether an entity was a Community Land Trust prior to June 28, 2018: the Articles of Incorporation or Bylaws. Residential Options’s Original Articles included no language demonstrating that it was a Community Land Trust prior to the September 10, 2019, merger with ROOF Housing Trust and the filing of the Amended Articles on September 20, 2019.3 As set forth in the discussion of the Berkley Application above, Florida Housing is required to limit its inquiry to the four corners of an application. It was contrary to the provisions of the RFA for Florida Housing to find that Residential Options’s mere existence as a legal entity prior to June 28, 2018, satisfied the requirement that the Community Land Trust must demonstrate that it existed prior to June 28, 2018. Ms. Button’s own testimony demonstrated that Florida Housing intended to exclude Community Land Trusts created after June 28, 2018. ROOF Housing Trust existed as a Community Land Trust in 2017, but ROOF Housing Trust was not the Community Land Trust named in the Solaris Application. Ms. Soukup’s explanation of the circumstances showed that Residential Options was well intentioned in its actions, but her explanation was not a part of the Solaris Application that was before Florida Housing’s Review Committee. THE METRO GRANDE APPLICATION Florida Housing deemed the Metro Grande Application eligible. Pursuant to the terms of the RFA, the Metro Grande Application was preliminarily selected for funding. Petitioner Brisas contends that the Metro Grande Application should have been found ineligible for failure to include mandatory site control documentation. Metro Grande submitted a Priority I application that was not seeking Land Acquisition Program funding. The site control requirements for such applicants are as follows: 3 This finding also disposes of Solaris’s arguments regarding the legal effect of corporate mergers. The RFA provided one simple way of demonstrating whether an entity was a Community Land Trust as of June 28, 2018. Florida Housing’s Review Committee could not be expected to delve into the complexities of corporate mergers to answer this uncomplicated question. The Local Government, Public Housing Authority, Land Authority, or Community Land Trust must already own the land as the sole grantee and, if funded, the land must be affordable into Perpetuity.[4] Applicants must demonstrate site control as of Application Deadline by providing the properly executed Site Control Certification form (Form Rev. 08-18). Attached to the form must be the following documents: A Deed or Certificate of Title. The deed or certificate of title (in the event the property was acquired through foreclosure) must be recorded in the applicable county and show the Land Owner as the sole Grantee. There are no restrictions on when the land was acquired; and A lease between the Land Owner and the Applicant entity. The lease must have an unexpired term of at least 50 years after the Application Deadline. Metro Grande did not include a deed or certificate of title in its application. In fact, no deed or certificate of title for the Metro Grande site exists. Miami-Dade County owns the Metro Grande site. Miami-Dade County acquired ownership of the Metro Grande site by eminent domain. The eminent domain process culminated in the entry of four Final Judgments for individual parcels which collectively compose the Metro Grande site. The Final Judgments were not attached to Metro Grande’s Application. There was no requirement in the RFA that Metro Grande include these Final Judgments in its application. The Final Judgments were produced during discovery in this proceeding. In its application, Metro Grande included a Land Owner Certification and Acknowledgement Form executed by Maurice L. Kemp, as the Deputy Mayor of Miami-Dade County, stating that the county holds or will hold 100 percent ownership of the land where Metro Grande’s proposed 4 The RFA defined “Perpetuity” as “at least 99 years from the loan closing.” development is located. Additionally, in its application, Metro Grande stated that Miami-Dade County owned the property. The RFA expressly states that Florida Housing “will not review the site control documentation that is submitted with the Site Control Certification form during the scoring process unless there is a reason to believe that the form has been improperly executed, nor will it in any case evaluate the validity or enforceability of any such documentation.” Florida Housing reserves the right to rescind an award to any applicant whose site control documents are shown to be insufficient during the credit underwriting process. Thus, the fact that no deed or certificate of title was included with Metro Grande’s site control documents was not considered by Florida Housing during the scoring process. Ms. Button testified that while this was an error in the application, it should be waived as a minor irregularity. The purpose of the documentation requirements was to demonstrate ownership and control of the applicant’s proposed site. There was no question or ambiguity as to the fact that Miami- Dade County owned the Metro Grande site. Florida Housing was not required to resort to information extraneous to the Metro Grande Application to confirm ownership of the site. The Land Owner Certification and Acknowledgement form, executed by the Deputy Mayor as the Authorized Land Owner Representative, confirmed ownership of the parcels. Metro Grande’s failure to include a deed or certificate of title, therefore, created no confusion as to who owned the property or whether Miami-Dade County had the authority to lease the property to the applicant. There was no evidence presented that the failure to include a deed or certificate of title resulted in the omission of any material information or provided a competitive advantage over other applicants. Brisas contends that the RFA was clear as to the documents that must be included to satisfy the site control requirements. Metro Grande failed to provide those documents or even an explanation why those documents were not provided. Florida Housing ignored the fact that no deed or certificate of title was provided, instead relying on information found elsewhere in the application. It is found that Metro Grande failed to comply with an eligibility item of the RFA, but that Florida Housing was correct to waive that failure as a minor irregularity that provided Metro Grande no competitive advantage, created no uncertainty as to whether the requirements of the RFA were met, and did not adversely affect the interests of Florida Housing or the public. Brisas has failed to demonstrate that Florida Housing’s preliminary determination of eligibility and selection for funding was contrary to the applicable rules, statutes, policies, or specifications of the RFA or was clearly erroneous, contrary to competition, arbitrary, or capricious. THE BEACON PLACE APPLICATION Florida Housing deemed the Beacon Place Application eligible. Pursuant to the terms of the RFA, Beacon Place was not preliminarily selected for funding. The RFA provides that an application may earn proximity points based on the distance between its Development Location Point and the selected Transit or Community Service. Proximity points are used to determine whether the Applicant meets the required minimum proximity eligibility requirements and the Proximity Funding Preference. Beacon Place is a Large County Application that is not eligible for the “Public Housing Authority Proximity Point Boost.” As such, the Beacon Place Application was required to achieve a minimum Transit Point score of 2 to be eligible for funding. Beacon Place must also achieve a total Proximity Point score of 10.5 in order to be eligible for funding. Beacon Place must achieve a total Proximity Point score of 12.5 or more in order to receive the RFA’s Proximity Funding Preference. Based on the information in its Application, Beacon Place received a Total Proximity Point score of 18 and was deemed eligible for funding and for the Proximity Point Funding Preference. The Beacon Place Application listed a Public Bus Rapid Transit Stop as its Transit Service. Applying the Transit Service Scoring Charts in Exhibit C of the RFA, Florida Housing awarded Beacon Place 6 Proximity Points for its Transit Service. The Beacon Place Application listed a Grocery Store, a Pharmacy, and a Public School in its Community Services Chart in order to obtain Proximity Points for Community Services. Using the Community Services Scoring Charts in Exhibit C of the RFA, Florida Housing awarded Beacon Place 4 Proximity Points for each service listed, for a total of 12 Proximity Points for Community Services. Beacon Place has stipulated, however, that the Public School listed in its application does not meet the definition of “Public School” in the RFA and Beacon Place should not receive the 4 Proximity Points for listing a public school. The RFA defines a “Public Bus Rapid Transit Stop” as: [a] fixed location at which passengers may access public transportation via bus. The Public Bus Rapid Transit Stop must service at least one bus that travels at some point during the route in either a lane or corridor that is exclusively used by buses, and the Public Bus Rapid Transit Stop must service at least one route that has scheduled stops at the Public Bus Rapid Transit Stop at least every 20 minutes during the times of 7am to 9am and also during the times of 4pm to 6pm Monday through Friday, excluding holidays, on a year- round basis. Additionally, it must have been in existence and available for use by the general public as of the Application Deadline. The Beacon Place Application included Metrobus Route 38 (“Route 38”) as a Public Bus Rapid Transit Stop. Route 38 has scheduled stops at the location identified in the Beacon Place Application at the following times during the period of 7 a.m. and 9 a.m. Monday through Friday: 7:01, 7:36, 7:56, 8:11, 8:26, 8:41, and 8:56. Brisas and Northside contend that Route 38 does not meet the definition of a Public Bus Rapid Transit Stop because there is a gap of more than 20 minutes between the 7:01 a.m. bus and the 7:36 a.m. bus. Applicants are not required to include bus schedules in the application. Florida Housing does not attempt to determine whether an identified stop meets the RFA definitions during the scoring process. During discovery in this litigation, Florida Housing changed its position and now agrees that Route 38 does not satisfy the definition. Nonetheless, the standard of review set forth in section 120.57(3) is applicable to Florida Housing’s initial eligibility determination, not its revised position. All parties stipulated that Route 38 meets the definition of a Public Bus Rapid Transit Stop as to scheduled stops during the hours of 4 p.m. to 6 p.m. Monday through Friday. If the bus stop listed by Beacon Place does not also meet the definition of a Public Bus Rapid Transit Stop as to scheduled stops during the hours of 7 a.m. to 9 a.m., Beacon Place would not be entitled to any Transit Service Proximity Points and would be ineligible for funding. Beacon Place cannot contest the fact that there is a 35 minute gap between the 7:01 and the 7:36 buses. Beacon Place has attempted to salvage its situation by comparing the language used in the RFA definition of a Public Bus Stop with that used in the definition of a Public Bus Rapid Transit Stop. The RFA defines Public Bus Stop in relevant part as [a] fixed location at which passengers may access one or two routes of public transportation via buses. The Public Bus Stop must service at least one bus route with scheduled stops at least hourly during the times of 7am to 9am and also during the times of 4pm and 6pm Monday through Friday, excluding holidays, on a year round basis…. Florida Housing has interpreted the “hourly” requirement of the Public Bus Stop definition to mean that a bus must stop at least once between 7:00 a.m. and 8:00 a.m., and at least once between 8:00 a.m. and 9:00 a.m. Beacon Place suggests that Florida Housing should interpret the “every 20 minutes” requirement for a Public Bus Rapid Transit Stop similarly, so that a bus must stop at least once between 7:00 a.m. and 7:20 a.m., once between 7:20 a.m. and 7:40 a.m., and once between 7:40 a.m. and 8:00 a.m. Florida Housing has rejected this interpretation, however, noting that the language in the two definitions is explicitly different. Ms. Button testified that if Florida Housing had intended these two distinct definitions to be interpreted similarly, it could easily have worded them differently. It could have required a Public Bus Stop to have stops “at least every 60 minutes,” rather than “hourly.” It could have required a Public Bus Rapid Transit Stop to have “three stops per hour” rather than “every 20 minutes.” Ms. Button observed that the purpose of the Public Bus Rapid Transit Stop definition is to award points for serving the potential residents with frequent and regular stops. The idea was to be sure residents had access to the bus during the hours when most people are going to and from work. Florida Housing’s interpretation of “every 20 minutes” is consonant with the plain language of the phrase and reasonably serves the purpose of the definition. Florida Housing also rejected the idea that the failure of the identified stop to meet the definition of a Public Bus Rapid Transit Stop in the RFA should be waived as a minor irregularity. Ms. Button testified that allowing one applicant to get points for a stop that did not meet the definition would give it a competitive advantage over other applicants, including some potential applicants who did not apply because they could not satisfy the terms of the definition. Because the bus stop listed by Beacon Place does not meet the definition of a Public Bus Rapid Transit Stop, Beacon Place is not entitled to any Transit Service Proximity Points and is thus ineligible for funding. Brisas and Northside have demonstrated that Florida Housing’s preliminary determination of eligibility for Beacon Place was contrary to the specifications of the RFA. Florida Housing’s original recommendation would have been contrary to the terms of the RFA. THE EAST POINTE APPLICATION Florida Housing deemed the East Pointe Application eligible. Pursuant to the terms of the RFA, East Pointe was preliminarily selected for funding. Bella Vista challenged Florida Housing’s action alleging that the Medical Facility selected by East Pointe did not meet the definition found in the RFA. East Pointe proposed a Development in Lee County, a Medium County according to the terms of the RFA. Applicants from Medium Counties are not required to attain a minimum number of Transit Service Points to be considered eligible for funding. However, such applicants must achieve at least 7 total Proximity Points to be eligible for funding and at least 9 Proximity Points to receive the Proximity Funding Preference. The East Pointe Application identified three Public Bus Stops and was awarded 5.5 Proximity Points based on the Transit Service Scoring Chart in Exhibit C to the RFA. However, East Pointe has stipulated that Public Bus Stop 1 listed in its application does not meet the definition of a Public Bus Stop because it does not have the required scheduled stops. Based on the Transit Service Scoring Chart, East Pointe should receive a total of 3.0 Proximity Points for Transit Services for Public Bus Stops 2 and 3. East Pointe listed a Grocery Store, a Medical Facility, and a Public School in its Community Services Chart. Based on the Community Services Scoring Charts in Exhibit C to the RFA, East Pointe received 1 Proximity Point for its Grocery Store, 4 Proximity Points for its Medical Facility, and 3 Proximity Points for its Public School, for a total of 8 Proximity Points for Community Services. East Pointe listed Lee Memorial Health System at 3511 Dr. Martin Luther King Jr. Boulevard, Ft. Myers, Florida, as its Medical Facility. The RFA defines “Medical Facility” as follows: A medically licensed facility that (i) employs or has under contractual obligation at least one physician licensed under Chapter 458 or 459, F.S. available to treat patients by walk-in or by appointment; and (ii) provides general medical treatment to any physically sick or injured person. Facilities that specialize in treating specific classes of medical conditions or specific classes of patients, including emergency rooms affiliated with specialty or Class II hospitals and clinics affiliated with specialty or Class II hospitals, will not be accepted. Additionally, it must have been in existence and available for use by the general public as of the Application Deadline. If East Pointe’s selected Medical Facility does not meet the definition of “Medical Facility” in the RFA, East Pointe will lose 4 Proximity Points, reducing its total Proximity Points to 7. The East Pointe Application would still be eligible but would not receive the Proximity Funding Preference and, therefore, would fall out of the funding range of the RFA. Bella Vista alleged that East Pointe should not have received Proximity Points for a Medical Facility because the Lee Community Healthcare location specified in its application “only serves adults and therefore only treats a specific group of patients.” Lee Community HealthCare operates nine locations in Lee County, including the “Dunbar” location that East Pointe named in its application. Lee Community Healthcare’s own promotional materials label the Dunbar location as “adults only.” Robert Johns, Executive Director for Lee Community Healthcare, testified by deposition. Mr. Johns testified that as of the RFA application date of September 24, 2019, the Dunbar office provided services primarily to adults 19 years of age or over, by walk-in or by appointment. A parent who walked into the Dunbar office with a sick or injured child could obtain treatment for that child. A parent seeking medical services for his or her child by appointment would be referred to a Lee Community HealthCare office that provided pediatric services. Mr. Johns testified that the Dunbar office would provide general medical treatment to any physically sick or injured person who presented at the facility, including children. Children would not be seen by appointment at the Dunbar facility, but they would be treated on a walk-in basis. The RFA requires a Medical Facility to treat patients “by walk-in or by appointment.” Ms. Button testified that Florida Housing reads this requirement in the disjunctive. A Medical Facility is not required to see any and all patients by walk-in and to see any and all patients by appointment. Florida Housing finds it sufficient for the Medical Facility to see some or all patients by walk-in or by appointment. Ms. Button opined that the Dunbar office met the definition of a Medical Facility because it treated adults by walk-in or appointment and treated children on a walk-in basis. Florida Housing’s reading is consistent with the literal language of the RFA definition. While it would obviously be preferable for the Dunbar facility to see pediatric patients by appointment, the fact that it sees them on a walk-in basis satisfies the letter of the RFA provision. Bella Vista has failed to demonstrate that Florida Housing’s preliminary determination of eligibility and selection for funding was contrary to the applicable rules, statutes, policies, or specifications of the RFA or was clearly erroneous, contrary to competition, arbitrary, or capricious. THE BEMBRIDGE APPLICATION Florida Housing deemed the Bembridge Application eligible. Pursuant to the terms of the RFA, Bembridge was preliminarily selected for funding. Bembridge proposed a development in Collier County, a Medium County in RFA terms. As an applicant from a Medium County, Bembridge was required to achieve at least 7 total Proximity Points to be eligible for funding and at least 9 Proximity Points to receive the Proximity Funding Preference. Medium County applicants are allowed, but not required, to claim both Transit Service points and Community Service points. As to Community Services, the RFA provides that an applicant may receive a “maximum 4 Points for each service, up to 3 services.” The RFA goes on to state: Applicants may provide the location information and distances for three of the following four Community Services on which to base the Application’s Community Services Score.[5] The Community Service Scoring Charts, which reflect the methodology for calculating the points awarded based on the distances, are outlined in Exhibit C. In its Application, Bembridge listed four, not three, Community Services. Bembridge was one of six Applicants that mistakenly submitted four Community Services instead of three. The Review Committee scorer reviewing Community Services in the applications stated on her scoring sheet: “After removing points for the service with the least amount of points, all still met the eligibility requirement.” 5 The four listed Community Services were Grocery Store, Public School, Medical Facility, and Pharmacy. Florida Housing interpreted the RFA as not specifically prohibiting an applicant from listing four Community Services, but as providing that the applicant could receive points for no more than three of them. As to the six applicants who submitted four Community Services, Florida Housing awarded points only for the three Community Services that were nearest the proposed development.6 Bembridge received 3 Proximity points for its Grocery Store, 3.5 Proximity Points for its Pharmacy, and 4 Proximity Points for its Public School, for a total of 10.5 Proximity Points for Community Services. Thus, as originally scored, Bembridge met the Proximity Funding Preference. Florida Housing did not score the Medical Facility listed by Bembridge, which was the farthest Community Service from the proposed development. Ms. Button testified that this fourth Community Service was treated as surplus information, and because it did not conflict with any other information in the application or cause uncertainty about any other information, it was simply not considered. Ms. Button likened this situation to prior RFAs in which applicants included pharmacies as Community Services even though they were not eligible in proposed family developments. Florida Housing disregarded the information as to pharmacies as surplus information. It did not consider disqualifying the applicants for providing extraneous information. Ms. Button also made it clear that if one of the three Community Services nearest the proposed development was found ineligible for some reason, the fourth Community Service submitted by the applicant would not be considered. The fourth Community Service was in all instances to be disregarded as surplusage in evaluating the application. 6 When queried as to whether the fourth Community Service was removed because it was worth the fewest points, as the reviewer’s notes stated, or because it was farthest away from the proposed development, Ms. Button replied that the distinction made no difference because the service that is farthest away is invariably the one that receives the fewest points. Florida Housing did not consider disqualifying Bembridge and the other five Applicants that mistakenly listed an extra Community Service in their applications. Ms. Button stated, “They provided in all of them, Bembridge and the others that were listed in this, they did provide three Community Services. And so I don’t think it is reasonable to throw out those applications for providing a fourth that we would just not consider nor give benefit to for those point values.” Bella Vista contends that Florida Housing should have rejected the Bembridge application rather than award points for the three nearest Community Services. Ms. Button testified that this was not a reasonable approach if only because there was nothing in the RFA stating that an application would be rejected if it identified more Community Services than were required. Ms. Button also noted that this was one of the first RFAs to allow applicants to select among four Community Services. She believed the novelty of this three-out-of-four selection process led to six applications incorrectly listing four Community Services. She implied that the Community Services language would have to be tweaked in future RFAs to prevent a recurrence of this situation, but she did not believe it fair to disqualify these six applicants for their harmless error. The Review Committee scorer did not perform a minor irregularity analysis relating to the fourth Community Service provided by Bembridge and the other applicants. Ms. Button opined that the addition of an extra Community Service amounts to no more than a minor irregularity because it provided no competitive advantage to the applicant and created no uncertainty that the terms and requirements of the RFA have been met. The RFA allows up to six proximity points for Transit Services. It specifically provides: Up to three Public Bus Stops may be selected with a maximum of 2 points awarded for each one. Each Public Bus Stop must meet the definition of Public Bus Stop as defined in Exhibit B, using at least one unique bus route. Up to two of the selected Public Bus Stops may be Sister Stops that serves the same route, as defined in Exhibit B. The RFA defines “Sister Stop” as: two bus stops that (i) individually, each meet the definition of Public Bus Stop, (ii) are separated by a street or intersection from each other, (iii) are within 0.2 miles of each other, (iv) serve at least one of the same bus routes, and (v) the buses travel in different directions. The Bembridge Application listed two Public Bus Stops, the definition of which is set forth at Finding of Fact 107 above. Based on the Transit Service Scoring Chart, Bembridge received a total of 1.0 Proximity Point for Transit Services for its two Public Bus Stops. Numerous questions were asked at the hearing about whether Bembridge’s identified bus stops were “Sister Stops” as defined in the RFA, and the evidence on that point was not definitive. However, whether they are Sister Stops is irrelevant because each stop identified by Bembridge independently met the definition of “Public Bus Stop” in the RFA and was therefore eligible for Transit Proximity Points. Bella Vista has failed to demonstrate that Florida Housing’s preliminary determination of eligibility and selection for funding was contrary to the applicable rules, statutes, policies, or specifications of the RFA or was clearly erroneous, contrary to competition, arbitrary, or capricious.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Housing Finance Corporation enter a final order as to RFA 2019-102 finding that: The Berkeley Application is ineligible for funding; The Sierra Bay Application is ineligible for funding; The Solaris Application is ineligible for funding; The Metro Grande Application is eligible for funding; The Beacon Place Application is ineligible for funding; The East Pointe Application is eligible for funding and entitled to the Proximity Funding Preference; and The Bembridge Application is eligible for funding. DONE AND ENTERED this 6th day of April, 2020, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 6th day of April, 2020. COPIES FURNISHED: Christopher Dale McGuire, Esquire Florida Housing Finance Corporation Suite 5000 227 North Bronough Street Tallahassee, Florida 32301 (eServed) Craig D. Varn, Esquire Manson Bolves Donaldson & Varn, P.A. Suite 820 106 East College Avenue Tallahassee, Florida 32301 (eServed) Amy Wells Brennan, Esquire Manson Bolves Donaldson & Varn, P.A. Suite 300 109 North Brush Street Tampa, Florida 33602 (eServed) Hugh R. Brown, General Counsel Florida Housing Finance Corporation Suite 5000 227 North Bronough Street Tallahassee, Florida 32301-1329 (eServed) Michael P. Donaldson, Esquire Carlton Fields, P.A. 215 South Monroe Street, Suite 500 Post Office Drawer 190 Tallahassee, Florida 32302-0190 (eServed) Donna Elizabeth Blanton, Esquire Radey Law Firm, P.A. Suite 200 301 South Bronough Street Tallahassee, Florida 32301 (eServed) M. Christopher Bryant, Esquire Oertel, Fernandez, Bryant & Atkinson, P.A. Post Office Box 1110 Tallahassee, Florida 32302-1110 (eServed) Anthony L. Bajoczky, Jr., Esquire Ausley & McMullen, P.A. Post Office Box 391 Tallahassee, Florida 32301 (eServed) Maureen McCarthy Daughton, Esquire Maureen McCarthy Daughton, LLC Suite 3-231 1400 Village Square Boulevard Tallahassee, Florida 32312 (eServed) Michael J. Glazer, Esquire Ausley & McMullen, P.A. 123 South Calhoun Street Post Office Box 391 Tallahassee, Florida 32302 (eServed) Seann M. Frazier, Esquire Parker, Hudson, Rainer & Dobbs, LLP Suite 750 215 South Monroe Street Tallahassee, Florida 32301 (eServed) Betty Zachem, Esquire Florida Housing Finance Corporation Suite 5000 227 North Bronough Street Tallahassee, Florida 32301 (eServed) Corporation Clerk Florida Housing Finance Corporation Suite 5000 227 North Bronough Street Tallahassee, Florida 32301-1329 (eServed)
Conclusions Having considered the totality of the record in this cause and being mindful of the development order of Lee County referenced above and the lack of expressed opposition to the establishment of the subject community services district by Lee County or any other person or entity, it is, concluded: That all statements contained within the petition are found to be true and correct. That the creation of the district is consistent with applicable elements or portions of the Lee County Comprehensive Plan. That the area of land within the proposed district is of sufficient size, sufficiently compact, and is sufficiently contiguous to be developable as one functional, interrelated community. That the district is the best alternative available for delivering community development services and facilities to the area that will be served by the district. That the community development services and facilities of the district would be compatible with the capacity and uses of existing local and regional community development services and facilities. That the area that will be served by the district is amenable to separate, special-district government. DONE and ENTERED this 30th day of January, 1986 in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of January, 1986. COPIES FURNISHED: Ken van Assenderp, Esq. YOUNG, VAN ASSENDERP, VARNADOE & BENTON, P.A. Post Office Box 1833 Tallahassee, Florida 32302 Melvin D. Deutsch, II, Esq. Timothy Jones, Esq. Westinghouse Gateway Communities, Inc. 1625 Hendry Street, Suite 201 Fort Myers, Florida 33901 Michael J. Ciccarone, Esq. Assistant County Attorney Lee County Post Office Box 398 Fort Myers, Florida 33902 Glenn Robertson, Secretary Florida Land Water Adjudicatory Commission Office of the Governori The Captol Tallahassee, Florida 32301
The Issue The issue is whether the Florida Land and Water Adjudicatory Commission should promulgate a rule establishing the Brooks of Bonita Springs Community Development District.
The Issue The sole issue to be addressed is whether the Petition to establish the Double Branch Community Development District meets the applicable criteria set forth in Chapter 190, Florida Statutes, and Chapter 42-1, Florida Administrative Code.
Findings Of Fact Overview The Petitioner is seeking the adoption of a rule by the Commission to establish a community development district proposed to consist of approximately 1,203 acres located within the boundaries of unincorporated Clay County. The suggested name for the proposed District is the Double Branch Community Development District. The Petition notes that the proposed District covers approximately 1,203 acres. Hinson testified that the approximate acreage of the proposed District remains 1,203 acres; however, the metes and bounds description contained in the Petition has been revised since the time of the filing of the Petition. The revised metes and bounds description was, without objection, admitted into evidence. There are no out-parcels within the area to be included in the proposed District. The estimated cost of the infrastructure facilities and services which are presently expected to be provided to the lands within the District was included in the Petition. The sole purpose of this proceeding was to consider the establishment of the District as proposed by the Petitioner. Summary of Evidence and Testimony Whether all statements contained within the Petition have been found to be true and correct. Petitioner's Composite Exhibit A was identified for the record as a copy of the Petition and its exhibits as filed with the Commission. Hinson testified that he had reviewed the contents of the Petition and approved its findings. Hinson also generally described the exhibits to the Petition. Hinson testified that the Petition and its exhibits, as modified by the revised metes and bounds description admitted into evidence as Exhibit B, are true and correct to the best of his knowledge. Miller testified that he had assisted in the preparation of portions of the Petition and its exhibits. Miller also generally described several exhibits to the Petition which he or his office had prepared. Miller testified that the exhibits to the Petition, prepared by England, Thims & Miller, Inc., and admitted into evidence, were true and correct to the best of his knowledge. Walters testified that he had prepared Exhibit 11 to the Petition, the Statement of Estimated Regulatory Costs (SERC). Walters also testified that Statement of Estimated Regulatory Costs submitted as Exhibit 11 to Petitioner's Composite Exhibit A was true and correct to the best of his knowledge. Hinson also testified that the consent by the owner of the lands to be included within the proposed District is still in full force and effect. The Petition included written consent to establish the District from the owners of one hundred percent (100%) of the real property located within the lands to be included in the proposed District. There have been no sales of these lands thus far. Based upon the foregoing, the Petition and its exhibits are true and correct. Whether the establishment of the District is inconsistent with any applicable element or portion of the State Comprehensive Plan or of the effective local government comprehensive plan. Walters reviewed the proposed District in light of the requirements of the State Comprehensive Plan, Chapter 187, Florida Statutes. Walters also reviewed the proposed District in light of the requirements of the Clay County Comprehensive Plan. From a planning and economic perspective, four (4) subjects of the State Comprehensive Plan apply directly to the establishment of the proposed District as do the policies supporting those subjects. Subject 16, Land Use, recognizes the importance of locating development in areas with the fiscal ability and service capacity to accommodate growth. The proposed District will have the fiscal ability to provide services and facilities to the population in the designated growth area and help provide infrastructure in an area which can accommodate development within Clay County in a fiscally responsible manner. Subject 18, Public Facilities, provides that the State shall protect substantial investments in public facilities and plan for and finance new facilities to serve residents in a timely, orderly, and efficient manner. The proposed District will be consistent with this element because the District will plan and finance the infrastructure systems and facilities needed for the development of lands within the District at no capital cost to Clay County. Subject 21, Governmental Efficiency, provides that governments shall economically and efficiently provide the amount and quality of services required by the public. The proposed District will be consistent with this element because the proposed District will finance and deliver those public services and facilities as needed by the District's residents and property owners. The proposed District will be established under uniform general law standards as specified in Chapter 190, Florida Statutes. Creating a District does not burden the general taxpayer with the costs for the services or facilities inside the proposed District. The proposed District will require no subsidies from the state or its citizens. Subject 26, Plan Implementation, provides that systematic planning capabilities be integrated into all levels of government, with emphasis on improving intergovernmental coordination. The proposed District is consistent with this element of the State Comprehensive Plan because the proposed District, by and through a separate and distinct Board of Supervisors, will systematically plan for the construction, operation, and maintenance of the public improvements and the community facilities authorized under Chapter 190, Florida Statutes, subject to and not inconsistent with the local government comprehensive plan and land development regulations. Additionally, the District meetings are publicly advertised and are open to the public so that all District property owners and residents can be involved in planning for improvements. Finally, Section 189.415(2), Florida Statutes, requires the District to file and update public facilities reports with the county or city, which they may rely upon in any revisions to the local comprehensive plan. Based on the testimony and exhibits in the record, the proposed District will not be inconsistent with any applicable element or portion of the State Comprehensive Plan. The Clay County Comprehensive Plan contains thirteen (13) elements which are supported by numerous goals and objectives. Walters testified that portions of three (3) of these elements are relevant when determining whether or not the proposed District is inconsistent with the local comprehensive plan. There are Goals and Objectives within the Future Land Use Element which are targeted to effectively manage growth in areas designated to accommodate future development and provide services in a cost-efficient manner. The proposed District is within the County's Planned Urban Service Area, and is part of a Chapter 380, Florida Statutes, development order vested in the County Land Use Plan. The proposed District is a recognized vehicle to provide the necessary services and facilities to the lands within the boundaries of the proposed District. The goal of the Intergovernmental Coordination Element is to establish processes among various governmental, public and private entities to coordinate development activities, preservation of the quality of life, and the efficient use of available resources. The proposed District will assist in the coordination process by providing and maintaining community infrastructure in a way that is not inconsistent with the plans and activities of related public and private agencies. The Capital Improvements Element is intended to provide necessary infrastructure in a timely and orderly manner. The proposed District will expand the areas that enjoy infrastructure in a manner consistent with the Clay County Comprehensive Plan. Based on the evidence in the record, the proposed District will not be inconsistent with any applicable element or portion of the Local Comprehensive Plan, and will in fact further the goals provided. The Florida Department of Community Affairs (DCA) reviewed the Petition for compliance with its various programs and responsibilities. DCA also discussed the contents of the Petition with the Clay County Planning Department and the Northeast Florida Regional Planning Council. After conducting its own review and conferring with local governmental entities, DCA concluded that it had no objection to the establishment of the Double Branch Community Development District. Whether the area of land within the proposed district is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developable as one functional interrelated community. Testimony on this criterion was provided by Miller and Walters. The lands that comprise the proposed District will consist of approximately 1,203 acres, located within the borders of unincorporated Clay County. All of the land in the proposed District is part of a planned community included in the Villages of Argyle Forest Development of Regional Impact (DRI). Functional interrelation means that each community purpose has a mutual reinforcing relationship with each of the community's other purposes. Each function requires a management capability, funding source, and an understanding of the size of the community's needs, so as to handle the growth and development of the community. Each function must be designed to contribute to the development or the maintenance of the community. The size of the District as proposed is approximately 1,203 acres. From a planning perspective, this is a sufficient size to accommodate the basic infrastructure facilities and services typical of a functionally interrelated community. The proposed facilities and services require adequate planning, design, financing, construction, and maintenance to provide the community with appropriate infrastructure. Compactness relates to the location in distance between the lands and land uses within a community. The community is sufficiently compact to be developed as a functionally inter-related community. The compact configuration of the lands will allow the District to provide for the installation and maintenance of its infrastructure in a long- term, cost-efficient manner. The Petitioner is developing all of the lands within the District as a single master-planned community. All of these lands are governed by the Villages of Argyle Forest Development of Regional Impact Development Order issued by Clay County. From planning, economics, engineering, and management perspectives, the area of land to be included in the proposed District is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developed as a single functionally interrelated community. Whether the proposed district is the best alternative available for delivering community development services and facilities to the area that will be served by the proposed district. It is presently intended that the District will participate in the construction or provision of certain infrastructure improvements as outlined in the Petition. Installation and maintenance of infrastructure systems and services by the District is expected to be financed through the issuance of tax exempt bonds and the debt retired by "non-ad valorem" or "special" assessments on benefited property within the proposed District. Expenses for operations and maintenance are expected to be paid through maintenance assessments. Use of such assessments will ensure that the real property benefiting from District services is the same property which pays for them. Two types of alternatives to the use of the District were identified. First, the County might provide facilities and services from its general fund. Second, facilities and services might be provided by some private means, with maintenance delegated to a property owners' association (POA) or a home owners' association (HOA). The District is preferable to the available alternatives at focusing attention on when, where, and how the next system of infrastructure will be required. This results in a full utilization of existing facilities before new facilities are constructed and reduces the delivered cost to the citizens being served. The District will construct certain infrastructure and community facilities which will be needed by the property owners and residents of the project. Expenses for the operations and maintenance are expected to be paid through maintenance assessments to ensure that the property or person receiving the benefit of the district services is the same property or person to pay for those services. Only a community development district allows for the independent financing, administration, operations and maintenance of the land within such a district. Only a community development district allows district residents to completely control the district. The other alternatives do not have these characteristics. From an engineering perspective, the proposed District is the best alternative to provide the proposed community development services and facilities to the land included in the proposed District because it is a long-term, stable, perpetual entity capable of funding, constructing, and in some cases, maintaining the facilities over their expected life. From planning, economic, engineering, and special district management perspectives, the proposed District is the best alternative available for delivering community development services and facilities to the area that will be served by the District. Whether the community development services and facilities of the proposed district will be incompatible with the capacity and uses of existing local and regional community development services and facilities. The services and facilities proposed to be provided by the District are not incompatible with uses and existing local and regional facilities and services. The District's facilities and services within the proposed boundaries will not duplicate any existing regional services or facilities which are provided to the lands within the District by another entity. None of the proposed services or facilities are presently being provided by another entity for the lands to be included within the District. Therefore, the community development services and facilities of the proposed district will not be incompatible with the capacity and uses of existing local and regional community development services and facilities. Whether the area that will be served by the district is amenable to separate special-district government. As cited previously, from planning, economics, engineering, and special district management perspectives, the area of land to be included in the proposed District is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developed and become a functionally interrelated community. The community to be included in the District has need for basic infrastructure systems to be provided. From planning, engineering, economic and management perspectives, the area that will be served by the amended District is amenable to separate special-district government. Other requirements imposed by statute or rule. Chapter 190, Florida Statutes, and Chapter 42-1, Florida Administrative Code, impose specific requirements regarding the Petition and other information to be submitted to the Commission. Elements of the Petition The Commission has certified that the Petition to Establish the Double Branch Community Development District meets all of the requirements of Section 190.005(1)(a), Florida Statutes. Statement of Estimated Regulatory Costs (SERC) The SERC contains an estimate of the costs and benefits to all persons directly affected by the proposed rule to establish the District -- the State of Florida and its citizens, the County and its citizens, the City and its citizens, the Petitioner, and consumers. Beyond administrative costs related to rule adoption, the State and its citizens will only incur minimal costs from establishing the District. These costs are related to the incremental costs to various agencies of reviewing one additional local government report. The proposed District will require no subsidies from the State. Benefits will include improved planning and coordination of development, which are difficult to quantify, but nonetheless substantial. Administrative costs incurred by the County related to rule adoption should be minimal. Benefits to the County will include improved planning and coordination of development, without incurring any administrative or maintenance burden for facilities and services within the proposed District except for those it chooses to accept. Consumers will pay non-ad valorem or special assessments for certain facilities. Location in the District by new residents is voluntary. Generally, District financing will be less expensive than maintenance through a property owners' association or capital improvements financed through developer loans. Benefits to consumers in the area within the CDD will include the option of having a higher level of public services and amenities than might otherwise be available, completion of District-sponsored improvements to the area on a timely basis, and a larger share of direct control over community development services and facilities within the area. Section 190.005(1)(a), Florida Statutes, requires the Petition to include a SERC which meets the requirements of Section 120.541, Florida Statutes. The Petition contains a SERC. It meets the requirements of Section 120.541, Florida Statutes. Other Requirements Petitioner has complied with the provisions of Section 190.005(1)(b)1, Florida Statutes, in that Clay County was paid the requisite filing fees. Section 190.005(1)(d), Florida Statutes, requires the Petitioner to publish notice of the local public hearing in a newspaper of general circulation in Clay County for four consecutive weeks prior to the hearing. The notice was published in The County Line section of The Florida Times-Union, a newspaper of general circulation in Clay County for four consecutive weeks, on February 13, 2002, February 20, 2002, February 27, 2002, and March 6, 2002. Clay County Support for Establishment Pursuant to the requirements of Section 190.005(1)(b), Florida Statutes, Petitioner filed a copy of the Petition and the $15,000 filing fee with Clay County prior to filing the Petition with the Commission. As permitted by Section 190.005(1)(c), Florida Statutes, the Clay County Commission held a public hearing on February 26, 2002, to consider the establishment of the Double Branch Community Development District. At the conclusion of its public hearing on February 26, 2002, the Clay County Commission adopted Resolution No. 01/02-42, expressing support for the Commission to promulgate a rule establishing the Double Branch Community Development District. The Clay County Resolution specifically found that all six (6) of the statutory factors for evaluating the establishment of community development districts found in Section 190.005(1)(e), Florida Statutes, had been met by the Petition in this matter.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Governor and Cabinet, sitting as the Florida Land and Water Adjudicatory Commission, pursuant to Chapters 190 and 120, Florida Statutes, and Chapter 42-1, Florida Administrative Code, establish the Double Branch Community Development District as requested by the Petitioner by formal adoption of the proposed rule attached to this Report as Exhibit 3. DONE AND ENTERED this 1st day of April, 2002, in Tallahassee, Leon County, Florida. CHARLES A. STAMPELOS 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 1st day of April, 2002. Exhibit 1 Petitioner's Witnesses at Public Hearing Donald P. Hinson OakLeaf Plantation, L.L.C 3020 Hartley Road, Suite 100 Jacksonville, Florida 32257 Douglas C. Miller, P.E. England Thims & Miller, Inc. 14775 St. Augustine Road Jacksonville, Florida 32258 Gary R. Walters Gary Walters and Associates 12 Crooked Tree Trail Ormond Beach, Florida 32174 Exhibit 2 List of Petitioner's Exhibits Letter Description Composite Exhibit (Petition with twelve (12) exhibits) B-1 Pre-filed Testimony of Donald P. Hinson (11 pages) Revised legal description for lands to be included within the boundaries of the proposed District Commission Notice of Receipt of Petition Letter to Division of Administrative Hearings from Commission Letter to Department of Community Affairs from Commission Correspondence from Department of Community Affairs to the Commission Clay County Resolution 01/02-42 Development Order (No. 99-45) for Villages of Argyle Forest Development of Regional Impact Florida Times-Union Proof of Publication of Notice of Local Public Hearing Pre-filed Testimony of Douglas C. Miller, P.E. (8 pages) Pre-filed Testimony of Gary R. Walters (21 pages) Chapter 187, Florida Statutes (23 pages) Exhibit 3 Text of Proposed Rule CHAPTER 42___-1 DOUBLE BRANCH COMMUNITY DEVELOPMENT DISTRICT 42___-1.001 Establishment. 42___-1.002 Boundary. 42___-1.003 Supervisors. 42____-1.001 Creation. The Double Branch Community Development District is hereby established. Specific Authority 120.53(1), 190.005 FS. Law Implemented 190.005 FS. History-New 42____-1.002 Boundary. The boundaries of the District are as follows: A parcel of land lying in the being part of Sections 4, 5, 6, 8 and 9, Township 4 South, Range 25 East, Clay County, Florida, being more particularly described as follows: Commencing at the Northwest corner of said Section 4, also being the Northeast corner of said Section 5; thence, on the West line of said Section 4, South 00 degrees 10 minutes 14 seconds East, 5.00 feet to the point of beginning; thence, parallel with and 5.0 feet South from the North line of said Section 4, also being the line dividing Clay County and Duval County, and the North line of said Township 4 South, North 89 degrees 50 minutes 04 seconds East, 2039.14 feet to the West line of Deerfield Pointe, as recorded in Plat Book 22, Pages 62 through 65, of the public records of said Clay County; thence, on said West line, South 00 degrees 20 minutes 13 seconds West, 1354.17 feet to the South line of said Deerfield Pointe; thence, on said South line, North 89 degrees 51 minutes 50 seconds East, 675.62 feet to the West line of Spencer’s Crossing Unit 1, as recorded in Plat Book 18, Pages 18 through 22, of said public records; thence, on said West line, the West line of Spencer’s Crossing Unit 5, as recorded in Plat Book 27, Pages 19 through 22, the West line of Sweetbriar, as recorded in Plat Book 32, Pages 61 through 64, the West line of lands recorded in Official Records Book 1603, Page 1212, and the West line of a 20 foot right-of-way recorded in Official Records Book 1603, Page 1220, all being recorded in the public records of said county, said line also being the East line of the Southeast quarter of the Northwest quarter and the Southwest quarter of said Section 4, South 00 degrees 31 minutes 32 seconds West, 4050.46 feet to the South line of said Section 4; thence, on said South line, North 89 degrees 51 minutes 57 seconds West, 662.62 feet to the West line of lands described in Official Records Book 1603, page 1212, of said public records, also being the East line of the West half of the Northeast quarter of the Northwest quarter of said Section 9; thence, on last said line, South 00 degrees 11 minutes 52 seconds East, 1388.96 feet to the South line of said Northeast quarter of the Northwest quarter of said Section 9; thence, on said South line, South 89 degrees 09 minutes 05 seconds West, 662.36 feet to the East line of the Southwest quarter of the Northwest quarter of said Section 9; thence, on said East line, South 00 degrees 21 minutes 15 seconds East, 699.95 feet to the South line of the North half of the Southwest quarter of the Northwest quarter of said Section 9; thence, on said South line, South 88 degrees 36 minutes 38 seconds West, 1327.66 feet to the West line of said Section 9, also being the East line of said Section 8; thence, on the South line of the North half of the Southeast quarter of the Northeast quarter of said Section 8, North 88 degrees 34 minutes 52 seconds West, 1335.51 feet to the East line of the Southwest quarter of the Northeast quarter of said Section 8; thence, on said East line, South 00 degrees 10 minutes 48 seconds East, 700.93 feet to the South line of said Southwest quarter of the Northeast quarter of Section 8; thence, on said South line, North 88 degrees 09 minutes 42 seconds West, 1156 feet, more or less, to the centerline of the North prong of Double Branch; thence, in a Northwesterly direction, by and along said centerline and following the meanderings thereof, 12,053 feet, more or less, to a point bearing South 89 degrees 49 minutes 27 seconds West from the point of beginning; thence, parallel with and 5.0 feet South from the North line of said Section 5, North 89 degrees 49 minutes 27 seconds East, 5043 feet, more or less, to the point of beginning. said parcel containing 1203 acres, more or less. Specific Authority 120.53(1), 190.005 FS. Law Implemented 190.004, 190.005 FS. History-New 42____-1.003 Supervisors. The following five persons are designed as the initial members of the Board of Supervisors: Donald P. Hinson, James T. O’Riley, Donald E. Brown, Charles W. Arnold, III, and Gary F. Hannon. Specific Authority 120.53(1), 190.005 FS. Law Implemented 190.006(1) FS. History - New COPIES FURNISHED: Cheryl G. Stuart, Esquire Jennifer A. Tschetter, Esquire Hopping, Green & Sams, P.A. 123 South Calhoun Street Post Office Box 6526 Tallahassee, Florida 32314 Charles Canady, General Counsel Florida Land and Water Adjudicatory Commission Office of the Governor Department of Legal Affairs The Capitol, Room 209 Tallahassee, Florida 32399 Donna Arduin, Secretary Florida Land and Water Adjudicatory Commission Office of the Governor The Capitol, Room 2105 Tallahassee, Florida 32399 Barbara Leighty, Clerk Growth Management and Strategic Planning The Capitol, Room 2105 Tallahassee, Florida 32399
Findings Of Fact The Parties and Property The Seminary Lane Development consists of multiple parcels totaling 6.33 acres of property that straddle Northwest 5th Avenue and Northwest 12th Street in Gainesville, Florida (Property).7 The majority of the Property is owned by the Gainesville Florida Housing Corporation (Housing Corporation).8 The area around the Property is known as the Fifth Avenue Neighborhood (Neighborhood). Appellant Kali Blount is a resident of Gainesville who has worked continuously to improve the Neighborhood since 1987. Mr. Blount has served multiple terms on the Gainesville Fifth Avenue Community Redevelopment and Pleasant Street Advisory Board, a board of citizens appointed by the Gainesville Community Redevelopment Agency (CRA) to advise the CRA on development in the area including and surrounding the Property. Appellant NKwanda Jah is a resident of Gainesville and is the founder and executive director of the Cultural Arts Coalition, which is housed in the Wilhelmina Johnson Center located in the Neighborhood at 321 Northwest 10th Street. The Center is about 200 feet from the Property. Appellant Carrie Johnson resides in the Neighborhood at 705 Northwest 10th Street. Ms. Johnson has lived in her home for the last 35 years. Her home is about 700 feet from the Property. Appellants Jennifer and Joel Parker live in the Neighborhood at 1202 Northwest 4th Avenue, which is located about 150 feet from the Property. The Parkers' home is located in a part of the Neighborhood that has been designated by the City as the "University Heights Historic District" (UHHD). 7 Northwest 5th Avenue in Gainesville, Florida, is also known as "Seminary Lane." 8 The remainder of the Property consists of two additional parcels which TWP intends to purchase in the future. Appellee TWP is a Florida limited liability company that is developing the Seminary Lane Development. TWP submitted the application which resulted in the Development Decision. Appellee City is a Florida municipality. The City enacted the LDC and has authorized its staff to administratively issue final approval of TWP's application for the Development Decision. History of the Property and Neighborhood The Neighborhood has historic and cultural significance to Gainesville's history. In the past, African Americans (who were denied access to land that was restricted to "whites only" for residential, commercial, institutional, or religious use elsewhere in Gainesville) exclusively occupied the Neighborhood. As a result, the community has a number of single-family homes, as well as religious and institutional buildings that serve the African American community. Some Appellants have lived in the Neighborhood since the Jim Crow era or have close ties to Neighborhood institutions. The homes in the Neighborhood are of varying architecture but are no more than two-story. They sit on varying lot sizes. The streets in the Neighborhood are sometimes narrow and often lack sidewalks. More recently, the Neighborhood has diversified in its residents and character. For example, although historically African American, non-African Americans also own property and/or reside in the Neighborhood. In the past five years, at least two student housing developments, similar to the project proposed by TWP, have been built in or on the outskirts of the Neighborhood. The City has taken steps to lay the foundation for redeveloping the Property and Neighborhood. The Property was acquired by the Housing Corporation. In 2009, the City removed 31 structures from the Property. Since that time the Property has remained and is currently vacant. In 2017, the City changed the Future Land Use designation for the Property and other surrounding and nearby properties to Urban Mixed Use (UMU) and changed the zoning for the Property to Urban 6 (U6). Ultimately, the Housing Corporation entered into a contract to sell TWP the Property for $8,590,600. The proceeds from the sale of the Property will give the Housing Corporation funds to further its mission of providing affordable housing in the form of mortgage-free homes or payment-assisted homes. Additionally, TWP is obligated to build eight affordable housing units on the Property, contribute $200,000 towards a community center, community space, or for community- based investment in the surrounding neighborhood, and provide $50,000 toward relocation of a building housing a leadership program currently located on the site. The Master Plan and Development Decision On April 17, 2019, TWP (through a consultant) conducted a workshop regarding its intention to file an application to develop the Property. At the time, TWP was applying for a special use permit for the Seminary Lane Development. Although special use permits require a neighborhood meeting, the workshop was not sponsored by the City, nor was City Staff in attendance in their official capacity at this meeting. TWP's consultant mailed notice of the workshop to property owners in the Neighborhood and published notice of the neighborhood workshop in the newspaper. The notice was mailed to Appellants Joel Parker and Jennifer Parker. The notice did not mention a "master plan." After the workshop, TWP changed the type of development procedure it would utilize and abandoned the special use permit process. By way of a letter dated February 3, 2020, the City notified TWP's consultant that it had administratively approved the Seminary Lane Master Plan (Master Plan) and that the approval would remain effective for five years. The letter stated in relevant part: The [City's] Technical Review Committee (TRC) has reviewed the Seminary Lane Master Plan, DB 19-00180, in accordance with the process and requirements as set forth in the [LDC]. Based on the review by the TRC, the plan has been approved. Please note, the master plan serves as a basis for the review of future development plans in the phased development and any individual phases or portions of the project and must be consistent with the approved master plan. Any future development plan shall comply with the [LDC], the City's Comprehensive Plan and any and all applicable regulations for the City of Gainesville. The City-approved Master Plan consists of one sheet and sets forth a graphic of the area approved for development. The Master Plan also indicates that there will be two phases of development, sets forth the acreage for each phase (Phase One – 5.41 acres and Phase Two – .92 acres), as well as the total acreage of 6.33 acres. The Master Plan provides no specific details of the number of units proposed for each phase of the project or the individual parcels within the Property. Rather, the Master Plan depicts Phase 1 containing proposed buildings for multi-family dwelling units and for car parking. The Development Decision at issue in this appeal addresses development for Phase 1 of the project. Phase 2 is depicted on the Master Plan as containing affordable housing units on land to be donated by TWP, proposed parking, and a stormwater area for the affordable housing units. Phase 2 is not at issue in these proceedings. The Master Plan sets forth the following information related to density for the entire proposed development, both Phase 1 and Phase 2. TABLE 2: PROPOSED MAXIMUM BED COUNT AREA BEDS ALLOWABLE** 1042 **ALLOWABLE TOTAL BASED ON THE MAXIMUM NUMBER OF DWELLINGS IS PERMITTED BASED ON LAND DEVELOPMENT CODE (LDC) §30-4.9.C1 60 UNITS PER ACRE @ 6.33 ACRES = 379 UNITS MAX 379 UNITS @ 2.75 BEDS/UNIT = 1042 BEDS MAX[9] The City provided no public notice of the TRC's review of the Master Plan. The City provided no notice to anyone - besides TWP - of its decision to administratively approve the Master Plan. The City did not inform anyone living in the Neighborhood, including Appellants, about its consideration or administrative approval of the Master Plan. After the Master Plan (labeled by the City as DB-90-180) was administratively approved by the City for the Seminary Lane Development, TWP submitted a major development plan application for the first phase of the development which was referred to as "Peak Campus Seminary Lane" (labeled by the City as DB-19-00074). As required by the LDC, the application was reviewed by the TRC, made up of City Staff from different departments, for consistency and compliance with the LDC and with the Master Plan. Although TWP argues this development is not "student housing," the units will contain up to four bedrooms, each with their own bathroom, and a very small living space. As a practical matter, although technically the development is not limited to students, it will cater to the large student population in Gainesville. The floor plan is a dorm-like apartment setting, and, as the "Campus" in its name suggests, the development is within walking distance to the University of Florida campus. On March 27, 2020, after five rounds of review, the TRC administratively issued a final approval for DB-19-00074, the Development Decision. The approved Development Decision consists of approximately 46 sheets of schematics, renderings, and plans for stormwater, demolition, tree 9 The term "beds" refers to the number of bedrooms per unit. protection, grading, drainage, underground utilities, landscape, and architecture. The Development Decision involves three development areas that make up the Property: Area A, Area B, and Area C. Below is a graphic of the areas and buildings approved by the TRC in the Development Decision as superimposed on the Master Plan. Area A is located on the northwest corner of Northwest 5th Avenue and Northwest 12th Street. It is one block east of Northwest 13th Street, a major street through Gainesville, Florida. The area across Northwest 12th Street east of Area A is zoned RSF-4 and Residential Conservation (RC). The area north of Area A, which is separated from Area A by an undeveloped (and perhaps abandoned) right-of-way or an alley, is zoned Urban 2 (U2) and has a Future Land Use Designation of Residential Low (RL). Area A consists of buildings (as explained below) that will house multi- family residential units and a parking garage. The proposed buildings are connected as one structure and have a "terraced" design containing three to five stories. The parking garage is wrapped with multi-family residential units, but some sides of the parking garage face the outside streets. Area B is a backwards "L" shaped parcel on the interior portion of a block bordered by Northwest 5th Street to the north. Building B1 is on the west portion of the parcel. It has a "terraced" design similar to the building in Area A, and also contains multi-family residential units and a multi-story parking garage attached to its southern wall. Building B1 abuts the rear of several single-family homes. Building B2 is also on this parcel and will contain multi-family residential units but have no parking. Building B1's parking garage will serve the units in Building B2. It also abuts the rear of several single-family homes. Area C is located on the southeast corner of Northwest 5th Avenue and Northwest 12th Street. The building in Area C will be four stories and will contain multi-family residential units but have no parking. Building B1's parking garage will serve the units in Building C. The homes abutting Area B on the south are in "a designated historic district," UHHD. Several single-family homes located in this historic district are within 100 feet from the south side of Buildings B2 and B1. Although the number of units to be built is not specified in the Development Decision, the following is provided regarding the maximum number of bedrooms: PROJECT DESCRIPTION: Only Phase 1 as seen on the master plan is proposed to be permitted with this set. Phase 1 includes areas, area [sic] A, B and C. Area A & B include the construction of a three and five-story multi-family building with a four-story parking garage, amenities, underground stormwater system, landscape and utilities. Area A proposes a total of 502 beds. Area B proposes a total of 325 beds. Area C includes the construction of a four-story multi-family building with included amenity space, utilities, underground stormwater and landscaping. Area C proposes a total of 32 beds. The total proposed beds for Phase 1 is 859. Based on a total allowable of 1,042 beds, Phase 2 can have up to 183 beds. (emphasis added). As noted above, Phase 1 will allow development of 859 bedrooms in three separate multi-family buildings located on Areas A, B, and C in the Neighborhood. Section 30-4.8.D.3.a., establishes the following formula for the maximum bedrooms in multi-family developments: Multi-family developments shall be limited to a maximum number of bedrooms based on the development's maximum residential density allowed by the zoning district multiplied by a 2.75 multiplier. Using this multiplier, the maximum number of units approved by the City for Phase 1 is 312 units. Additionally, the parking structures attached or part of Buildings A and B1, will provide 537 motor vehicle parking spaces. Prior to commencing construction on Phase 1 of the proposed development, TWP must submit documentation and obtain building permits for the individual buildings. According to the testimony at the hearing, the building permit documentation will be consistent with the Development Decision but have more detail. Issue I - Whether the approved development is compatible with the historic Fifth Avenue Neighborhood. Appellants contend that the size and nature of the multi-family buildings and the multi-story parking structures contrast with the existing neighborhood in a manner that does not fit with the character of the Neighborhood. Specifically, Appellants point to the approved 312 off-campus apartments with 859 bedrooms and 537 motor vehicle parking spaces as compared with the existing single-family homes surrounding the Property. (Appellants' Proposed Final Order, ¶ 46). Appellants also contend potential residents of the project (i.e. students) will not mix with the existing residents in the Neighborhood. More specifically, Appellants argue the Seminary Lane Development violates section 30-1.3 of the LDC, which is entitled "Purpose" and states as follows: This chapter implements the City of Gainesville Comprehensive Plan (Comprehensive Plan) to secure an environment for present and future generations that is environmentally sustainable, socially just and desirable, and economically sound through the scientific, aesthetic, and orderly disposition of land, resources, facilities and services. Further, Appellants argue that the Seminary Lane Development violates the objectives described in section 30-1.4 of the LDC: This chapter is prepared in accordance with and for the promotion of the goals, objectives and policies of the Comprehensive Plan. The regulations herein are designed to conserve the value of land, building and natural resources; protect the character and maintain the stability of residential, commercial and industrial areas; and provide for efficiency and economy in the process of development through: Preservation, protection and conservation of significant natural features of land, creeks, lakes, wetlands, uplands and air; Appropriate use of land; Regulation of the use and occupancy of buildings, land and water; Healthful and convenient distribution of population; Provision of convenient circulation of people and goods and the control of traffic congestion; Provision of adequate public facilities and utilities; Protection, enhancement and perpetuation of specific community areas with special character, interest or value representing and reflecting elements of the city's cultural, social, economic, political, historical and architectural heritage; Establishment of zoning districts regulating the location and use of buildings and other structures, and the use of water and land for trade, industry, residence and other purposes, by regulating and limiting the height, bulk and access to light and air of building and structures, the area of yards and other open spaces and density of use; and Provision of low cost, efficient and expeditious development review process. (emphasis added). Article I of the LDC is titled "Generally" and City Staff has construed this provision as being aspirational rather than imposing any substantive requirements for a proposed development. A plain reading of Article I indicates it is a description of the general purpose and objectives that motivated the City when it adopted the land development regulations that are codified as the LDC. It is prefatory in nature, serving as an introduction and guidance to interpreting the requirements set forth in the LDC. Thus, compliance with the specific substantive requirements contained in Articles III through X of the LDC would carry a presumption of furthering these motivational goals and objectives; violation would indicate that a project was inconsistent with these goals and objectives. Whether the Development Determination violated the substantive requirements of the LDC are addressed below. As such, neither LDC section 30-1.3 nor section 30-1.4 provides a basis upon which to challenge the Development Decision. See generally Dep't of State v. Fla. Greyhound Ass'n, Inc., 253 So. 3d 513, 521 (Fla. 2018) ("Although prefatory language may aid a court to determine legislative intent when the operative terms of a provision of law are ambiguous, such language does not control interpretation of the operative terms of that provision."); Per Jonas Ingvar Gustafsson v. Aid Auto Brokers, Inc., 212 So. 3d 405, 409 (Fla. 4th 2017)(noting prefatory language did not necessarily create any obligations). As such, the Development Decision cannot be said to violate sections 30-1.3 or 30-1.4 of the LDC. The City's interpretation of these sections in approving the Development Decision is not clearly erroneous, patently unreasonable, or unfounded in reason. Nor will the City's determination result in a miscarriage of justice or an ultra vires act. Issue II - Whether the approved development violates the maximum density allowed for multi-family development by the LDC. Appellants argue that the Development Decision exceeds the density allowed by the LDC. The City found that the project was entitled to a density bonus based on the preservation of a tree. Based on this bonus, the City approved 60 units per acres. TWP counters that appellants waived the issue of density because Appellants did not appeal approval of the Master Plan, and even if not waived, the City's density calculations are correct. Did Appellants waive the issue of density? 10 Section 30-3.57 allows the appeal of "a final decision, order, requirement, interpretation, determination, or action." As stated above, Appellants challenge the density allowed in the Development Decision proposed for Buildings A, B1, B2, and C, not the Master Plan. Appellees' waiver argument fails for the following reasons. First, the Master Plan does not provide an actual number of units or beds that will be constructed in each phase or area, nor does it identify the qualifying tree that results in the density bonus. Rather, it provides for the 10 The LDC defines "density" as "the extent of development of residential uses, expressed in dwelling units per acre of land." maximum allowable density for the project in a chart titled "Proposed Maximum Bed Count" (emphasis added). The use of the word "proposed" indicates that this number was not the final or actual number approved by the City. Second, the LDC anticipates that a master plan is just one step in the development process, not a final step. It states: Sec. 30-3.49. - Master plans. Purpose. Master plan review is an optional step for projects that fall within the intermediate or major level of development review. A master plan is intended to provide for large area planning for phased developments. The intent of the master plan is to identify internal and external connectivity, regulated natural and archeological resources, and developable areas. Review and effect. Master plans are reviewed by the technical review committee in accordance with the process set forth in this division for development plan review, and must demonstrate that the completed development will be consistent with this chapter and with the Comprehensive Plan. Each phase must include a proportionate share of any required recreational and open space, and other site and building amenities of the entire development, except that more than a proportionate share of the total amenities may be included in the earlier phases with corresponding reductions in the later phases. An approved masterplan will serve as a basis for review of future development plans in the phased development, and individual phases or portions of the project must be consistent with the approved master plan. Expiration of master plan. A master plan shall be effective for up to five years from the date of approval. (emphasis added). Third, the City's February 3 letter approving the Master Plan explicitly states that the Master Plan is not final. Rather, the City informed TWP "the master plan serves as a basis for the review of future development plans in the phased development and any individual phases or portions of the project." It goes on to state that any "development plan shall comply with the [LDC], the City's Comprehensive Plan and any and all applicable regulations for the City of Gainesville." The clear intent is that a development plan would be submitted in the future and that each phase of the development would require a separate review of consistency with the LDC. Lastly, the notices regarding the workshops were not from the City, nor did the workshop notice mention "Master Plan." The City and TWP admit that they did not provide notice to anyone that the TRC had approved the one-page Master Plan because the LDC does not require it. Appellants did get actual notice, albeit not automatically or from the City, that the application for Phase 1 of the project was approved in the 45- page Development Decision that had the actual bedroom numbers and identified the qualifying tree. As a practical matter, Appellants could not have challenged the size of the qualifying tree (as discussed below) without identification of the tree or the final numbers proposed for the development. To require Appellants to have appealed the Master Plan's proposed density formula without having been given notice of the specific details provided in the Development Decision would be a miscarriage of justice. See generally Mordenti v. State, 630 So. 2d 1080, 1084 (Fla. 1994) (noting a fundamental error "equivalent to a denial of due process" results in a miscarriage of justice). They have the right to challenge the density numbers approved in the Developmental Decision, even though the formula was previously established in the Master Plan. Was TWP entitled to a tree bonus? As stated above, the Property is located in a zoning district designated as U6, which allows a broad range of uses including multi-family residential. Pursuant to section 30-4.13, the maximum residential density in the U6 Zoning District is 50 units per acre "by right" and up to 60 units per acre with certain bonuses. Section 30-4.9 establishes the City's incentive-based "Development Bonus System": Available bonuses. In accordance with this section and up to the limit allowed with bonuses as specified for the applicable zoning district, development projects may be eligible for: 1) additional building stories and the corresponding increase in overall building height; and 2) increased residential density. (emphasis added). Section 30-4.9.C.1. awards a developer a density bonus of ten units per acre if the development preserves either one High Quality Heritage Tree with a diameter breast height (DBH) of more than 71 inches or two trees that have a DBH of between 51 to 70 inches. It provides: RESIDENTIAL DENSITY BONUS High Quality Heritage Tree Preservation (fair or better condition): Tree DBH 20"—30" 31"—50" 51"—70" 71"+ Bonus DU/Acre 0.5 1 5 10 Although Appellants presented contrary measurements, the record reflects that the City and TWP presented evidence that the Property has a qualifying tree in Area A with a DBH of 71.8 inches. This tree is located on the eastern side of proposed Building A on Northwest 12th Street. Additionally, there is testimony in the record that there are two trees in Area B that have a DBH of between 51 and 70 inches that would also qualify for the bonus and award TWP 10 bonus units per acre. There is no dispute that the development is a "project" as defined by the LDC.11 Section 30-4.18 provides that the density bonus applies project- wide, not just in the immediate area where the qualifying tree exists: Development criteria described in the density bonus points manual, when met, shall allow increases in development intensity based upon the limits in this section. These increases in intensity shall be allowed should a developer propose to undertake a project that will result in a development sensitive to the unique environmental and developmental needs of the area. For each criterion met by the developer, certain points shall be credited to the project. Those points, calculated in accordance with the Density Bonus Points Manual, shall determine the maximum allowable density. (emphasis added). Appellants also assert that the Development Decision fails to protect the qualifying tree in Area A and that as proposed, the building would harm 11 The City's LDC defines "project" as follows: Project means a single development as designated by the applicant, but two or more purportedly separate developments shall be considered one project if the City Manager or designee determines that three or more of the following criteria exist: The purportedly separate developments are located within 250 feet of each other; The same person has an ownership interest or an option to obtain an ownership interest of more than 50% of the legal title to each purportedly separate development; There is a unified development plan for the purportedly separate developments; The purportedly separate developments voluntarily do or shall share private infrastructure; or There is or will be a common management or advertising scheme for the purportedly separate developments. LDC § 30-2.1. The development fulfills criteria A, B, C, and E. the qualifying tree's root structure or interfere with the tree's "dripline." In other words, Appellants argue, the City has failed to require TWP to provide a sufficient buffer to ensure the qualifying tree remains healthy. At the hearing, TWP objected to testimony regarding this issue because it was not raised in Appellants' Amended Notice of Appeal or any supporting briefs. The undersigned agrees and sustains the objection regarding the "dripline" issue. Even if this issue had been properly raised, the undersigned must defer to the City Staff, who did not seem concerned that the tree would not remain in "fair or better" condition as required for the bonus. The City's calculation of 60 units per acre for the maximum density for the project (which includes the 50 units provided for the U6 Zoning District plus the 10-unit bonus for having one or more qualifying High Quality Heritage Trees) cannot be said to be clearly erroneous, patently unreasonable, or unfounded in reason. Nor will the City's density calculations result in a miscarriage of justice or an ultra vires act. Did the City err in calculating the density amount for Phase 1? TWP intends to develop Buildings A, B1, B2, and C to have 312 residential units and 859 beds. Appellants argue that the City erred in allowing TWP to "transfer" density from Phase 1 to Phase 2, and among areas. As indicated above, the City determined that TWP was allowed a maximum of 379 units or 1,042 beds. The record further establishes all of the project's units could theoretically be placed anywhere on the Property. The City determined a maximum density of 379 units, based on the 60-unit per acre density calculation and the 6.33 acreage for the entire project. The City further determined that based on the entire size of the project, the maximum number of bedrooms (calculated by multiplying the 379 units by the 2.75 multiplier for allowable bedrooms per unit) would be 1042 bedrooms. Appellants seem to argue that the density calculations should have been done by phase or parcel. In other words, they insist the density allowance (here, 60 units or 165 beds per acre) should be multiplied by individual acreage for each area and not the 5.41 acres for Phase 1 or the 6.33 acreage of the entire project. Below is a chart comparing the calculations for the separate areas. Property Size Number of Units allowed by Right (@ 50 per acre) Number of units allowed by exception (@ 60) for tree bonus Number of Units approved in the Development Decision Area A 2.91 145 174 175 Area B 2.24 112 134 129 Area C 0.26 13 15 8 Phase 1 5.41 270 324 312 Total Project 6.33 316 379 n/a Assuming the density should be based on the size of the parcel being developed in each phase, the total area for Phase 1 (Areas A, B, and C) being developed would be 5.41 acres. This would equate to maximum density of 324 units or 891 beds for Phase 1. Again, TWP only seeks to develop 312 units with 859 beds. This is well under the density limitation calculated by Appellants for Phase 1. Using Appellants' method of calculation per parcel, the allowable density approved for Area A is one unit over the allowable amount under the LDC (using the bonus formula). This is the only portion that would go beyond the maximum amount. This parcel approach, however, is not consistent with the LDC. As indicated above, the density bonus is project-wide, not phase or parcel dependent. It would be illogical to calculate the density bonus per project, and not also calculate the base density the same way, per project. The testimony of City Staff (taken at the hearing and made part of the record) also establishes that a development applicant may allocate density anywhere within the boundaries of the project, regardless of whether the project consists of multiple lots or parcels, and regardless of whether the project has streets crossing through the project. For example, all the approved 312 units for Phase 1 could be located in Area A even though this amount was calculated based on the entire Phase 1 acreage, so long as the project complied with other aspects of the LDC. Because the density is correctly calculated for the entire project area and the proposed number of beds is consistent with the terms of the LDC, it cannot be said that the City's determination of maximum density is clearly erroneous, patently unreasonable, or unfounded in reason. Nor can it be said that these calculations would result in a miscarriage of justice. Issue III - Whether the approved development meets the compatibility standards between multi-family development and single-family development found in the LDC. Appellants argue that the project violates the LDC because it is a multi-family development that fails to comply with section 30-4.8 of the LDC. Section 30-4.8.D. states, in pertinent part, as follows: 1. Generally. Multi-family development shall contain no more than six dwelling units per building and shall be in the form of single-family dwellings, attached dwellings, or small-scale multi-family when located within 100 feet of any property that is in a single-family zoning district, the U1 district, or a designated historic district. (emphasis added). A plain reading of section 30-4.8.D.1. indicates the restrictions in that section apply only to multi-family development in three instances: when the project is located within 100 feet of any property in (1) a single-family zoning district, (2) a U1 Zoning District, or (3) a designated historic district. Section 30-4.2 sets forth the zoning districts that are considered "single-family" by the City. Future Land Use Category Zoning Districts Single-Family (SF) U1, RSF-1 to 4, RSF-R Before evaluating Appellants' argument regarding subsection D.1., it is helpful to identify the zoning districts surround the Property. With regards to Area A, the land to the north is zoned U2, U4, or U6; the land to the immediate east is zoned U8; the land to the west across Northwest 12th Street is zoned U6, RSF-4, and RC; and the land to the south is mostly U6, but the southwest corner catty-corner to the property is zoned U8. Again, only the RSF-4 to the east of Area A is a "single-family" zoning district. Areas B and C are surrounded by U4 and U6 zoning districts. To the south of Area B, is property located in the UHHD, a designated historic district. According to the Development Decision, Building B2 is within 100 feet from the UHHD. The City has interpreted section 30-4.8.D.1. as establishing a definite prescriptive compatibility standard that applies specifically to a land area that is measured as 100 feet within certain areas (i.e., single-family zoning district, U1 district, or designated historic district). Here, there are two areas of the proposed project that trigger section 30-4.8.D.1. First, there is the portion of Area A that is located on Northwest 12th Street and 100 feet from the RSF-4, a "single-family zoning district." According to the City, section 30- 4.8.D.1. does not apply to the entirety of a project area, no matter how large, just because a portion may be within 100 feet of a described area. Rather, it applies only to the portion that is located within 100 feet of that designated zone. Thus, the City determined that the limitation of no more than six dwelling units per building and the requirement that such buildings be in the form of single-family dwellings, attached dwellings, or small-scale multi- family only applies to that portion of the project area which is located within 100 feet of the RSF-4 Zoning District. The issue then becomes whether the restrictions in section 30-4.8.D.1. apply to the entire Building A, or only that portion that is built in Area A that is within the 100 feet of the RSF-4 Zoning District. City Staff has applied this provision to achieve development within the applicable 100-foot area where each building, or portion thereof, contains no more than six dwelling units in the form of single-family dwellings, attached dwellings, or small-scale multi-family. This achieves the City's goal to provide a transition between property designated as a single-family zoning district, U1 district, or a historic district and property proposed for larger-scale development. As an example, Appellees point to Figure 2 in section 30-4.8, which depicts an example of allowable transitioning between property in a designated single-family zoning district and a portion of a multi-family building that lies within 100 feet of that zoning district. The Development Decision depicts three separate structures of residential development that are on the eastern side of Building A. The City has interpreted these three structures as "buildings" because they will be built for the enclosure or shelter of persons.12 Although Appellants argue that these three structures are part of one building, Building A, and cannot be treated separately, the undersigned defers to the City's determination that these are three separate buildings. Similarly, the City considers the parking structure as a separate building from the three buildings in Area A on Northwest 12th Street. These three buildings make up the only portion of the development that is located within 100 feet of property in a single-family zoning district. Each building is capped at three stories with a maximum of six units per building. Thus, these buildings are in the form of a small-scale multi-family structure with a maximum of six units per building and, thereby, meet the requirements of section 30-4.8.D.1., as interpreted by the City. The second area triggering section 30-4.8.D.1 is in Area B. TWP disclosed that as approved, Building B2 exceeds the maximum density of six dwelling units per building for multi-family development because that portion of the building, which is five stories tall, is located within 100 feet of the UHHD. The City failed to detect this conflict with the LDC when it approved the development of Building B2 in the Development Decision. Pursuant to section 30-3.57.C.7., TWP requested at the hearing that the undersigned consider modified plans for Building B2 that correct the error approved by the City. The undersigned declines to do so. Rather, based on the representations by the City at the hearing, the portion of the 12 The City's LDC defines "building" as follows: Building means any structure, either temporary or permanent, except a fence or as otherwise provided in this definition, used or built for the enclosure or shelter of persons, vehicles, goods, merchandise, equipment, materials or property generally. This definition shall include tents, dining cars, trailers, mobile homes, sheds, garages, carports, animal kennels, storerooms, jails, barns or vehicles serving in any way the function of a building as described herein. This definition shall not include individual doll houses, play houses, and animal or bird houses. Development Decision approving Building B2 is reversed without prejudice, so that TWP may proceed with development of Buildings A, B1, and C, and submit an amendment to the City for TRC review and approval of revised plans for Building B2. Appellants next argue that the Development Decision violates section 30-4.8.D.2.e., which requires certain dividers in the form of walls or screening between multi-family projects that abut single-family properties: 2. Abutting single-family property. All new multi-family projects, whether stand alone or part of a mixed-use project, abutting property in a residential district or a planned development district with predominantly residential uses shall comply with the following regulations: * * * A decorative masonry wall (or equivalent material in noise attenuation and visual screening) with a minimum height of six feet and a maximum height of eight feet plus a Type B landscape buffer shall separate multi-family residential development from properties designated single-family residential. However, driveways, emergency vehicle access, or pedestrian/bicycle access may interrupt a continuous wall. If, in the professional judgment of city staff or other professional experts, masonry wall construction would damage or endanger significant trees or other natural features, the appropriate reviewing authority may authorize the use of a fence and/or additional landscape buffer area to substitute for the required masonry wall. There shall be no requirement for a masonry wall or equivalent if buildings are 200 or more feet from abutting single-family properties. In addition, the appropriate reviewing authority may allow an increased vegetative buffer and tree requirement to substitute for the required masonry wall. The primary driveway access shall be on a collector or arterial street, if available. Secondary ingress/egress and emergency access may be on or from local streets. (emphasis added). Specifically, Appellants argue that Building A fails to provide the proper wall and dividers from the property to the north of Area A. Area A is separated from the property to the north by a 15-foot alley which includes the paved portion of Northwest 6th Avenue. This area includes a former appellant's property and homes that were built by or with the assistance of Habitat for Humanity. Although this alley may be an abandoned right-of- way, a platted street maintained by the City, or simply an undeveloped portion of Northwest 6th Avenue, it is clear that there is separation between Area A and the single-family homes to the north. Section 30-2.1. provides clarification by defining "adjacent" and "abut": Adjacent means when two properties, uses or objects are not abutting but are separated only by a right-of-way, street, pathway or similar minimum separation. Abut means to physically touch or border upon, or to share a common property line. As such, Area A does not abut the residential property to the north but rather, is adjacent to that area. Moreover, this area to the north of Area A is zoned U2 and is not included as a residential zoning district in section 30-4.1, which is described as follows: Residential RSF-1 to 4 Single-Family RC Residential Conservation MH Mobile Home RMF-5 Single/Multi-Family RMF-6 to 8 Multi-Family Even assuming the property to the north of Building A abuts the project, neither section 30-4.8.D.2.e. nor section 30-4.8.D.2.f. is applicable to the Development Decision. Section 30-4.8.D.2.e. requires a decorative masonry wall only to "separate multi-family residential development from properties designated single-family residential." There are no properties which abut the property that are "designated as single-family residential." Section 30-4.8.D.2.f. requires the primary driveway access to "be on a collector or arterial street, if available." Section 30-2.1 defines both collector and arterial streets as follows: Arterial or arterial street means any street: Designated as arterial on the roadway map on file in the public works department; Functionally classified by the state department of transportation as an urban principal arterial street or an urban minor arterial street; or Designated by the city commission as an arterial street based on its physical design, moderately long trip length, and existing or anticipated traffic characteristics. * * * Collector or collector street means any street: Designated as collector on the roadway map on file in the public works department; Functionally classified by the state department of transportation as a collector; or Designated by the city commission as a collector street based on its physical design, moderate trip length, and existing or anticipated traffic characteristics. It is undisputed that a collector or arterial street is not available to the project. Thus, the Development Decision complies with the requirements of section 30-4.8.D.2.f. With the exception of Building B2, it cannot be said that the City's determinations that TWP's application meets the requirements of sections 30-4.8.D.1. and 30-4.8.D.2.e. and f. are clearly erroneous, patently unreasonable, or without foundation in reason. Nor can it be said that the City's finding of compatibility and compliance with these sections of the LDC will result in a miscarriage of justice or is an ultra vires act. Issue IV - Whether the approved development meets the building design standards set forth in the LDC. Appellants argue that the project does not meet building design standards set forth by the LDC. Appellants contend that the Seminary Lane Development fails to provide building entrances as set forth in section 30- 4.14.D. Section 30-4.14.D. states as follows: Building entrances. Each building shall provide a primary public entrance oriented toward the public right-of-way, and may be located at the building corner facing the intersection of two streets. Additional entrances may be provided on other sides of the building. Primary public entrances shall be operable, clearly-defined and highly-visible. In order to emphasize entrances they shall be accented by a change in materials around the door, recessed into the façade (alcove), or accented by an overhang, awning, canopy, or marquee. Building frontages along the street shall have functional entrances at least every 150 feet. (emphasis added). First, Appellants contend that the development proposed for Area A does not provide for primary entrances into the residential portion of the building on two streets. As noted above, the development proposed for Area A is made up of more than one building. There are at least three buildings fronting Northwest 12th Street that are within 100 feet from the RSF-4 Zoning District, the larger building made up of five stories that is outside the 100-foot area, and the parking structure. TWP must make sure that each building complies with the LDC requirements. Assuming the portion of Building A that is beyond 100 feet from the RSF-4 Zoning District is a separate building, it has one public entrance into a proposed non-residential space at the corner of Northwest 5th Avenue and Northwest 12th Street. This satisfies the LDC's provision that states the entrance "may be located at the building corner facing the intersection of two streets." There are, however, multiple buildings (as defined by the LDC) in Area A. The drawings and plans approved by the City in the Development Decision do not reflect that each of the three buildings that front Northwest 12th Street and are located within 100 feet from the RSF-4 Zoning District have their own entrances "oriented toward the public right-of-way." Because this failure to designate entrances for each of these three buildings is in violation of the LDC and clearly erroneous, the Development Decision must be modified to require entrances for each building in Area A. Appellants also contend that the buildings set to be constructed on Proposed Development Area B do not have any entrances oriented toward the public right-of-way. Because approval of Building B2 has been reversed, the issue of whether the entrance complies with the LDC is moot. Regarding Building B1, which is made up of a residential portion and a parking garage, the Development Decision plans indicate an entrance at the corner facing Northwest 5th Street, which is a public right-of-way. Thus, the proposed Building B1 complies with the entrance requirements of the LDC. Finally, the Development Decision plans relating to Building C reflect that its primary public entrance is on the west side of the building facing Northwest 12th Street, which is a public right-of-way. Thus, the proposed Building C complies with the entrance requirements of the LDC. With the exception of the three buildings that lack complying entrances in Area A modified above, it cannot be said that the City's decision in approving the proposed plans for Buildings A, B1, or C are clearly erroneous, patently unreasonable, or without a foundation in reason. Nor can it be said that the approval of these buildings and their entrances would result in a miscarriage of justice or constitute an ultra vires act. Issue V - Whether the approved development meets the parking structure standards set forth in the LDC. Appellants argue that the two parking structures in the project violate the LDC's provisions regulating parking structures. Section 30-7.3 provides the following regarding structured parking: Development plans for new parking structures as a principal or accessory use must: Minimize conflict with pedestrian and bicycle travel routes; Provide parking for residents, employees, and customers to reduce the need for on-site surface parking; Be located and designed to discourage vehicle access through residential streets; and Design facilities for compatibility with neighborhoods by including ground floor retail, office, or residential use/development (as appropriate for the zoning district) when located on a public street. The facility must also have window and facade design that is scaled to relate to the surrounding area. Structured parking may not be located within 100 feet of property zoned for single-family use. Section 30-4.15.C. further provides: C. Design of parking structures. Parking structures located along Storefront streets shall be concealed by liner buildings, which may be attached or detached from the parking structure. The liner building shall have a minimum of two stories and a minimum height of 30 feet and a minimum depth of 25 feet along the entire length of the parking structure. Parking structures located along Principal streets shall be required to provide ground floor commercial or office space along the street frontage. On all other streets, any structured parking that is not concealed behind a liner building or ground floor commercial or office space shall have decorative screening walls, perimeter parking landscaping per Article VII, or a combination thereof to screen ground floor parking. (figures and references omitted; emphasis added). Appellants first argue that the Development Decision does not comply with section 30-7.3.A.3., which discourages vehicle access to and from a parking structure via residential streets. Notably, this section does not prohibit vehicle access through residential areas but just discourages it. According to the record, the parking structure in Area A has vehicle access on the southside through an opening to Northwest 5th Street and on the northside on Northwest 6th Street. Both of the entrances to the parking structure seem to be toward the west end of Area A, away from the properties in the RC and RSF-4 zoning districts and closest to Northwest 13th Street. As indicated above, Northwest 13th Street is a multi-lane road running through Gainesville. Moreover, the parking structures in Areas A and B have access from Northwest 5th Street, which the City consider to be a "Storefront street," not a "residential street." Therefore, section 30-7.3.A.3. is not implicated for these vehicular access openings. The Northwest 6th Avenue entrance for the parking garage in Area A is depicted on one of the architectural sheets that makes up the Developmental Decision. As stated above, Northwest 6th Avenue runs between Area A and a number of single-family homes. Vehicular access so close to the residences could be disruptive and not compliant with the LDC's goal in section 30-7.3 of minimizing conflict with nearby residences. The hearing testimony established that during the TRC review process the City requested TWP remove the Northwest 6th Avenue vehicular access opening. TWP claims that the original architectural sheet has simply not been updated. To the extent the Developmental Decision has not been updated, the Developmental Decision is modified to remove the vehicular access from Northwest 6th Avenue into the parking structure in Area A. Next, Appellants contend that the Area A parking garage fails to comply with section 30-4.15.C., which requires certain design features when located on a public street. Arguably, the parking structure in Area A also fronts Northwest 6th Avenue as well, but this is an undeveloped part of that street, and it is unclear if it is a "public street." Regardless, the parking structure in Area A is located on at least one public street: Northwest 5th Avenue. The City determined that both parking structures have the required window and façade designs that are scaled to relate to the surrounding area. Moreover, the parking structure in Area A is wrapped with residential units, and thus complies with the requisite screening requirements. It cannot be said that this decision was clearly erroneous, patently unreasonable, or not based in reason. Appellants next contend that the parking structure located in Area A is within 100 feet from a "single-family zoning district," the property across Northwest 12th Street that is zoned RSF-4. However, the parking structure in Area A is on the far west side of the property, more than 100 feet from the area zoned RSF-4. Moreover, as noted above, there are three buildings between the parking structure in Building A and Northwest 12th Street. Because, as explained above, there are multiple buildings in Area A, the parking structure in Area A does not violate section 30-4.15.C. Appellants also contend that the Development Decision does not provide for any decorative screening walls, perimeter landscaping, or window and façade design compatible with or scaled to relate to the surrounding area as described in section 30-4.15.C. As stated above, the City has designated Northwest 5th Avenue as a "Storefront Street." Thus, section 30-4.15.C.1. is applicable to the parking structures located along Northwest 5th Avenue. The depictions in the Development Decision indicate that the parking structures will have the required liner building, thus complying with this section of the LDC. The parking structure in Area A that fronts Northwest 6th Avenue must comply with section 30-4.15.C.3., which requires a liner building, ground floor commercial, office space, or decorative screening walls. The portion of the parking structure in Area A that is not concealed behind a liner building has a decorative screening wall made up of brick veneer with openings made to look like windows. Thus, the parking garage in Building A complies with the requirements of section 30-4.15.C.3. With the modification of removing the Northwest 6th Avenue vehicular access entrance for the parking structure in Area A, it cannot be said that the City's decisions regarding the parking structures were clearly erroneous, patently unreasonable, or not founded in reason. Nor can it be said that the development of these parking structures as part of the project will result in a miscarriage of justice or an ultra vires act.
The Issue The issues to be addressed are whether the Petition to establish the District meets the criteria set forth in Section 190.005, Florida Statutes, and whether the hearing process has been conducted in accordance with the requirements of Section 190.005, Florida Statutes, and Florida Administrative Code Rule Chapter 42-1. For the Petitioner:
