The Issue The issue is whether the proposed change to the Bonita Bay Development of Regional Impact to allow residential development within 330 feet of an active bald eagle's nest in an area that had been set aside for preservation should be approved.
Findings Of Fact Parties Bonita Bay Properties, Inc., is the developer of the Bonita Bay DRI. SWF Properties of Southwest Florida, Inc., is the owner of the Bonita Bay DRI. The City is an incorporated municipality in Southwest Lee County. Relevant History of the Bonita Bay DRI The Bonita Bay DRI includes 2,422 acres in the City, near the Lee County/Collier County border. The City approved the original development order for the Bonita Bay DRI in November 1981. The DRI, as originally approved, included 8,250 multi-family units, 990 single-family units, 125 marina slips, 360,000 square feet of office space, 850,000 square feet of commercial space, 175 hotel rooms, and a 200-room conference center. The DRI development order has been amended on four prior occasions. The most significant of the amendments was the third amendment, which occurred in 1993. The 1993 amendment added a golf course, reduced the density of the DRI to 6,000 residential units, and reduced the commercial intensity of the DRI to 700,000 square feet. After the 1993 amendment, and currently, the Bonita Bay DRI includes approximately 588 acres of preservation areas, which is approximately 24.3 percent of the acreage in the DRI. The 1993 amendment also included conditions intended to protect a bald eagle's nest within the DRI known as nest LE-005. The conditions included the establishment of "primary protection zones" and "secondary protection zones" relative to the golf course and residential development in the vicinity of the nest. All activities in the protection zones were required to comply with a bald eagle management plan (BEMP) prepared by Petitioners and approved by the U.S. Fish and Wildlife Service (USFWS). For the golf course, the primary protection zone was a radius of 750 feet from the nest, and the secondary protection zone was an additional 750 feet beyond the primary protection zone. For residential development, the primary protection zone was a radius of 1,000 feet from the nest, and the secondary protection zone was an additional 500 feet beyond the primary protection zone. The protection zones and the original BEMP were approved in a 1993 Biological Opinion issued by USFWS under Section 7 of the Endangered Species Act (ESA). The protection zones were based upon the 1987 habitat management guidelines adopted by USFWS for the southeast United States. The BEMP was modified in 1997 to reduce the primary protection zone for residential development to the south of the nest to 850 feet. USFWS approved the modification. Recent Regulatory Developments Regarding Bald Eagles In 2006, USFWS proposed bald eagle management guidelines to be applied throughout the United States (hereafter "the national guidelines"). The national guidelines were implemented in July 2007, concurrent with the formal announcement that the bald eagle had recovered and that it would be removed from the list of species protected under the ESA. The rule "de-listing" the bald eagle under the ESA took effect on August 8, 2007. The national guidelines are "recommendations based on several decades of behavioral observations, science and conservation measures to avoid or minimize adverse impacts to bald eagles." USFWS "strongly encourages adherence to these [national] guidelines to ensure that bald . . . eagle populations will continue to be sustained." The national guidelines recommended a single buffer zone around active eagle nests, rather than the primary and secondary protection zones recommended in the 1987 regional guidelines. The width of the buffer zone recommended in the national guidelines depends on the nature of the use and its visibility from the nest. For most activities that will be visible from the nest, the recommended buffer zone is 660 feet. For activities that will not be visible from the nest, the recommended buffer zone can be as little as 330 feet. When the bald eagle was listed under the ESA, the recommended protection zones were larger. For example, the 1987 regional guidelines recommended against most activities within a 750-foot primary protection zone and included seasonal restrictions on activities within a 1,500-foot secondary protection zone. The recommended buffer zone widths in the national guidelines are flexible. USFWS can approve reduced buffer zones based upon "special circumstances" that "diminish the likelihood of bald eagle disturbance." That is effectively what happened in this case because, as discussed below, USFWS approved a 330-foot buffer around nest LE-005, even though a 660-foot buffer was recommended under the national guidelines. The Florida Fish and Wildlife Conservation Commission (FWCC) is in the process of developing a State Bald Eagle Management Plan, patterned after the national guidelines. The goal of the State plan is "to maintain a stable or increasing population of bald eagles throughout Florida in perpetuity." The most recent draft of the FWCC plan received into evidence, "Draft 4" dated December 21, 2007,3/ includes buffer zone guidelines similar to those in the national guidelines–- 660 feet for activities visible from the nest and 330 feet for activities not visible from the nest. The Proposed Change (1) Generally The proposed change will revise the BEMP adopted in 1993 for nest LE-005 by reducing the buffer around the nest to 330 feet. The reduced buffer will enable Petitioners to construct 15 single-family residences in the vicinity of the nest, along with a road to serve the residences and an expanded stormwater pond. The rationale for the proposed change was explained as follows in the Notice of Proposed Change (NOPC) submitted by Petitioners: The proposed change is to the [BEMP] only. The third amendment to the Bonita Bay DRI [development order] incorporated an Eagle Management Plan. The [BEMP] was based upon the level of understanding at that time. There was limited knowledge about the habitats of eagles and what was needed to assure their recovery. The agencies acted with an abundance of caution. Since that time, there has been extensive study. Based on the recovery of the species and the additional study, it has been determined that a radius of 330 feet is appropriate and adequate to protect the bird. This application is a request to amend the [BEMP] consistent with today's standards. The request does not open up any new areas for development; it simply permits the development of an area previously approved for residential development. The property impacted by the proposed change is a 23-acre parcel in the northwest corner of the Bonita Bay DRI, which is referred to in the NOPC as Baywoods Phase II (hereafter "the subject property"). The subject property is roughly triangular in shape. It is surrounded by a marsh/slough area to the north and east, a golf course and existing single-family residences to the south, and undeveloped uplands and marsh to the west. It is the last remaining developable upland parcel in the Baywoods area of the DRI. The residences proposed for the subject property will be compatible in size and design to the existing residences in the adjacent Baywoods area of the DRI. Those residences are detached, one and two-story, single-family units with densely landscaped lots. The subject property is zoned R-3. All types of residential uses are permitted in that zoning category, including high-rise, multi-family, mid-rise, townhouses, zero lot line, duplexes, and single-family. The proposed change meets the requirements of the City's land development code. There are no compatibility or zoning issues with the proposed change. The proposed change is technically a "down-zoning" of the subject property in that it restricts the use of the property to low-density, single-family residences. The proposed change will not result in any net decrease in the total acreage set aside for permanent preservation in the Bonita Bay DRI because the subject property is currently zoned for residential development. Technically, the proposed change will increase the acreage set aside for permanent preservation through the placement of a conservation easement on the revised buffer zone around nest LE-005. However, as a practical matter, the proposed change is an "up zoning" in that it authorizes development in an area that none can presently occur due to the existing eagle protection zones, and it reduces the area within the DRI that is protected from present development by reducing the size of the buffer zone around the nest. (2) Review by the City In July 2006, Petitioners submitted a NOPC to the City and the Southwest Florida Regional Planning Council in accordance with Section 380.06(19), Florida Statutes. On or about February 15, 2007, the City staff4/ prepared a report recommending approval of the NOPC, subject to various conditions that were unacceptable to Petitioners. The conditions included the elimination of five of the proposed residences in order to reduce the visual impacts associated with the proposed development and to create a "fly zone" for the eagles to the northwest of the nest. The conditions also incorporated the "best management practices" recommended by the City's Eagle Technical Advisory Committee (ETAC), which included phasing and other restrictions on construction of the proposed residences. On April 6, 2007, the City's Board for Land Use Hearings and Zoning Board of Appeals (Board) held a seven-hour quasi-judicial hearing on the NOPC. The hearing included "[a] lengthy Applicant presentation . . . followed by Staff's presentation" and public comment. Petitioners had a full and complete opportunity to present evidence in support of the proposed change at the Board hearing. The testimony and evidence presented to the Board was, for the most part, the same as that presented at the final hearing in this case. At the conclusion of the hearing, the Board recommended the approval of the NOPC, as proposed by Petitioners. The Board considered, but rejected the City staff's recommendation to eliminate five of the proposed residences and to implement the ETAC recommendations. On June 25, 2007, the City Council held a hearing on the NOPC and rejected, by voice vote, a motion to approve "the advice of the zoning committee, which was basically to approve the development as it's presented "5/ The City Council's denial of the NOPC was memorialized in Resolution No. 07-02, which was rendered on June 27, 2007. The City Council did not, in its voice vote or the Resolution, make any finding or reach any conclusion whether the proposed change required further DRI review, as required by Section 380.06(19)(f)5., Florida Statutes. The "findings of fact" included in the Resolution stated in pertinent part: Bonita Bay Group did not prove entitlement for the [proposed change] by demonstrating compliance with the Bonita Springs Comprehensive Plan, with the conditions referenced in this Resolution and other Bonita Springs Comprehensive Plan Goals, Objectives and Policies. The [proposed change], as conditioned, was not compatible with existing or planned uses in the surrounding area; will adversely affect environmentally critical areas or natural resources, in particular, gopher tortoise and eagle habitat, both species protected by the State of Florida. City Council further found that the proposed development order amendment would have an unfavorable impact upon the environment and natural resources of the area and that this negative impact would override the positive value of the [proposed change]. The proposed use is not appropriate at the subject location in the DRI. The recommended conditions considered for the eagle management plan, gopher tortoises and other applicable regulations did not provide sufficient safeguards to the public interest. . . . Potential Impacts on Nest LE-005 Nest LE-005 is located in a live pine tree within an undeveloped area of pine flatwoods on the subject property. The nest-tree is located just to the west of a marsh/slough area that flows into Estero Bay. The eagles using nest LE-005 do not forage in the area immediately around the nest-tree. They primarily forage in Estero Bay, which is to the northwest of the subject property. Nest LE-005 is one of only two remaining bald eagle's nests in the City. The nest was first documented by the Florida Game and Freshwater Fish Commission (the predecessor to FWCC) in 1977, which is four years prior to approval of the original development order for the Bonita Bay DRI and prior to any construction in the DRI. The nest has been continuously occupied for the past years, except for two short periods in which the eagles were displaced by great horned owls. The nest has produced eaglets over the period that it has been monitored. The eagles have continued to return to the nest despite the ongoing development in the Bonita Bay DRI over the past 25 years. The development has not disrupted the eagles from using the nest or successfully fledging eaglets. It is likely that the existing protection zones around nest LE-005 have helped to protect the eagles and the nest. However, it is also clear that the eagles have adapted to the development in the DRI and the associated human activities. The eagles have been observed flying near the high- rise condominiums to the west of the subject property, resting and perching on roofs of residences in the areas, and resting on the golf course to the south of the subject property. The existing protection zones around the nest LE-005 are not encumbered by a conservation easement, but the area cannot be developed so long as the nest remains "active." If the nest is no longer active (i.e., not used by eagles for five years), then, under the 1993 amendment to the DRI development order, Petitioners "may proceed with development of the property within the primary and secondary zones in accordance with the approved plan of development for that area." In April 2006, prior to submittal of the NOPC, Petitioners met with USFWS and ETAC regarding proposed revisions to the existing BEMP for the subject property. USFWS and ETAC recommended changes to a draft revised BEMP prepared by Petitioners' consultants. Some of the changes were incorporated into a revised BEMP that was submitted to USFWS for its formal review. On October 16, 2006, USWFS issued a letter amending its 1993 Biological Opinion concerning nest LE-005. The letter does not specifically state that the revised BEMP proposed by Petitioners is "approved," but that is clearly the effect of the letter. Indeed, the more persuasive evidence establishes that Petitioners need no additional authorization from USFWS (or FWCC6/) in order to proceed with the proposed development in accordance with the revised BEMP. The October 2006 letter adopts the conservation measures proposed in the revised BEMP, including a 330-foot buffer area that would be protected in perpetuity through a conservation easement; preservation of the vegetative canopy in the area; limitations on the right-of-way for the road; landscaping for the residential lots to enhance the vegetative buffer; a two-story limitation on the height of the residences; limits on the timing of construction; limits on exterior lighting; installation of a fence and signage along the perimeter of the buffer zone; and a $35,000 donation to the Wildlife Foundation of Florida to support monitoring of bald eagles in Lee County. The portion of the buffer zone that will be encumbered by a conservation easement is approximately 5.1 acres in a semi-circle shape with a 330-foot radius around the west side of nest LE-005. The area to the east of the nest is a wetland preserve that is already protected from development. The proposed residences will be visible from the nest, but the visual impacts of the residences will be minimized through extensive landscaping. All but one of the proposed residences will be at least 400 feet from the nest. Currently, the closest development to the nest is the golf course, which is 850 feet to the southwest and east of the nest. The closest residences to the nest are approximately 900 feet to the south in Baywoods Phase I. There is no credible evidence that the proposed development will cause the abandonment of nest LE-005. The City admitted in a discovery response that it could produce no bona fide opinion from a biologist or other qualified expert that the proposed development would cause the nest to be abandoned, and the wildlife ecologist presented by the City could only testify that the proposed development "may" and "has the potential to" adversely affect the eagles using the nest. The City is concerned that the proposed 330-foot buffer is not sufficient to protect the eagles using nest LE-005. That concern is based, in large part, upon the premise that all eagles "do better" with a larger protection zone than a smaller one. The preponderance of the evidence is contrary to this premise. For example, a 2004 study presented by the City found no difference in nesting success of eagles in rural and suburban areas,7/ and a 2007 analysis of the active eagle's nests in Lee County showed that there was no correlation between the distance of a nest from development and the success of the nest. The more persuasive evidence establishes that eagles are able to adapt and acclimate to human activities in order to take advantage of suitable habitat, and that is what has happened with the eagles using nest LE-005. The eagles were using the nest before construction began in the Bonita Bay DRI; they have continued to use the nest as the project has developed around them over the past 25 years; and they have been observed flying over residences and in close proximity to high-rise buildings in the DRI and perching on roofs of residences within the DRI. Likewise, the more persuasive evidence establishes that the reduction in the size of the buffer around nest LE-005 will not adversely impact the nest. Adequate protections are included in the revised BEMP, which has been approved by USFWS. The proposed roadway serving the residences will not adversely impact the eagles using nest LE-005. Eagles' nests are known to co-exist with far more heavily used traffic corridors, such as interstate highways. The proposed residences will not disturb the flight paths of the eagles from nest LE-005. The eagles do not have a preferred flight path; they have been observed flying to and from the next in all directions, and they will have no problem flying over the proposed residences. Potential Impacts on Gopher Tortoises The subject property includes gopher tortoise habitat. A November 2006 survey identified 62 active gopher tortoise burrows and 12 inactive burrows on the subject property. In 1993, FWCC issued a permit authorizing Petitioners to "take" gopher tortoises, their eggs and their burrows where such taking is incidental to development activities. As a condition of the permit, Petitioners paid a mitigation fee of $208,895.90 to FWCC as "seed money" for the Hickey Creek Mitigation Park in Lee County. FWCC confirmed in a September 2006 letter that the 1993 permit remains in effect. Notwithstanding the incidental take authorization in the FWCC permit, Petitioners intend to relocate the gopher tortoises on-site in order to comply with the City's requirements. The tortoises will be relocated to the 5.1-acre portion of the subject property around nest LE-005 that will be protected by a conservation easement and to an 11.64-acre site immediately to the west of the subject property. The relocation areas will be maintained and managed in accordance with a relocation and management plan in order to enhance the habitat for the gopher tortoises. No concerns with the gopher tortoise relocation and management plan were raised in the City's staff report on the proposed change. The wildlife ecology expert presented by the City expressed a concern that the relocation plan is "putting tortoises into a much smaller area," but she also acknowledged that the relocation plan is consistent with the City's gopher tortoise regulations and that Petitioners did what they were required to do in relation to gopher tortoises. Consistency with the City's Comprehensive Plan The resolution through which the City denied the proposed change stated that Petitioners failed to demonstrate "compliance with the Bonita Springs Comprehensive Plan " The only comprehensive plan provisions specifically cited in the Resolution in support of that conclusion were Objective 7.6 and Policy 7.6.1 of the Conservation/Coastal Management Element of the plan.8/ The City identified several additional provisions of the plan at the final hearing and in its PRO that it contends the proposed change is inconsistent with, namely Policy 7.2.4 and Objective 7.3. The City does not contend that the proposed change is inconsistent with any provision of the Future Land Use Element of the plan. Policy 7.2.4 Policy 7.2.4 provides: The City shall encourage the protection of viable tracts of sensitive or high-quality natural plant communities within developments. According to the City, this provision is implicated because the subject property contains "high-quality habitat," in that it does not contain significant exotic vegetation, and it supports a diversity of wildlife species, including gopher tortoises and eagles. A vegetative survey of the subject property was performed in 2006. The survey found that the majority of the subject property consists of disturbed scrubby pine flatwoods, disturbed pine flatwoods, and disturbed palmetto prairies. No protected plant species were located on the subject property. There is no persuasive evidence as to the existence of any "high-quality natural plant communities" on the subject property apart from the existence of nest LE-005. The proposed development would result in the removal of vegetation on the subject property to make way for the proposed residences, the road serving the proposed residence, and an expanded stormwater management pond. The wildlife ecologist presented by the City was unable to testify how much of the subject property would have to be set aside for permanent preservation to comply with Policy 7.2.4, as interpreted by the City. She simply testified that it would have to be "[m]ore than the current proposal." The proposed change will place a conservation easement on approximately 5.1 acres surrounding the tree in which nest LE-005 is located. The eagles using the nest are likely to find the closest suitable tree in the event that the current nest-tree dies or falls. There are other mature pine trees within the 5.1 acres surrounding the current nest-tree that would be suitable for an eagle's nest. Thus, to the extent that the nest-tree and the surrounding pine trees are considered to be a "high-quality natural plant communit[y]" for purposes of Policy 7.2.4, the proposed change includes adequate protection of that community. Therefore, the proposed change is consistent with Policy 7.2.4. Objective 7.3 Objective 7.3 provides: Wildlife -- The City shall continue to maintain and enhance the fish and wildlife diversity and distribution within the City for the benefit of a balanced ecosystem. According to the City, the proposed change is inconsistent with this objective because the proposed change will result in a significant modification of the habitat currently being used by the diverse wildlife on the subject property. A wildlife survey of the subject property was performed in 2006. The only protected species identified in the survey, other than the eagles, were the American alligator, gopher tortoises, and two types of heron. The alligator and heron were observed in the existing stormwater pond on the southern edge of the subject property. The pond will be expanded as part of the proposed development, which will provide increased habitat for these species. The gopher tortoises were observed throughout the subject property, including areas that are proposed for development. The gopher tortoises found in the areas proposed for development will be relocated, as discussed above. The existing eagle's nest, and the surrounding 5.1 acres, will be protected in perpetuity through a conservation easement, as discussed above. The proposed change includes adequate protections for the eagle, gopher tortoises, and other wildlife species located on the subject property, and will not adversely impact the diversity or distribution of those species. Therefore, the proposed change is consistent with Objective 7.3. Objective 7.6 and Policy 7.6.1 Objective 7.6 provides: Southern Bald Eagles -- The City shall use its bald eagle habitat regulations to protect Southern bald eagle nesting sites and request the County to monitor Southern bald eagle nesting activities. Policy 7.6.1 provides: The City shall maintain a policy of negotiations with owners of land surrounding eagle nests to provide an optimal management plan within which all development within critical eagle nesting habitat and buffer areas must be consistent. The management plans shall address at a minimum: A description of the land around the critical eagle nesting habitat, including locations of nest tree(s) and perch tree(s), vegetation types, and a description of the type and density of understory and canopy vegetation; A history and behavior patterns of the eagle pair; An aerial map and a map at the scale of the development which shows the location of the eagle's nest and other critical eagle nesting habitat features as well a the proposed development; The size and shape of the buffer area; Measures to reduce potential adverse impacts of the development on the nesting bald eagles; A critical eagle nesting habitat management plan, which shall include techniques to maintain viable nesting habitat. These techniques may include controlled burning, planting, or removal of vegetation, invasive exotic species control, maintaining hydrologic regimes, and monitoring; Deed restrictions, protective covenants, easements, or other legal mechanisms, ensuring that the approved management plan will be implemented and followed. A commitment to educate future owners, tenants, or other users about the specific requirements of the approved eagle management plan and the state and federal eagle protection laws. The eagle technical advisory committee will consider the guidelines promulgated by the FFWCC and the U.S. Fish and Wildlife Service in the review of management plans and may request assistance from these agencies whenever necessary. The revised BEMP addresses each of the items listed in Policy 7.6.1, which are identified in the policy as "minimum" requirements. The revised BEMP also includes additional elements, including fencing along the perimeter of the buffer zone and a monetary donation to support eagle monitoring in Lee County. The City contends that the proposed change is inconsistent with this objective and policy because the revised BEMP is not "an optimal management plan," because the 330-foot buffer is smaller than the buffer zone recommended by the national guidelines and because the project could be redesigned by reducing the size of the stormwater pond. The more persuasive evidence establishes that the revised BEMP is the optimal plan for the development, as proposed, which is the appropriate inquiry under Policy 7.6.1. The revised BEMP has been approved by USFWS and FWCC, and as discussed above, includes adequate protections for nest LE-005 and the eagles using the nest. Therefore, the proposed change is consistent with Objective 7.6 and Policy 7.6.1. Ultimate Findings The proposed change is not a substantial deviation from the original development order for the Bonita Bay DRI. The proposed change meets the conditions of Section 380.06(19)(e)2.j., Florida Statutes, in that it is a change that modifies the boundaries and configuration of the protection areas around nest LE-005 based upon science-based refinements concerning bald eagle habitat protection. The more persuasive evidence establishes that the proposed change will not adversely affect nest LE-005 and that the revised BEMP includes adequate protections for the nest and the eagles using the nest. On these issues, the opinions of the wildlife ecologists presented by Petitioners were more persuasive than the opinions of the wildlife ecologists presented by the City.9/ The more persuasive evidence establishes that the proposed change is consistent with the City's comprehensive plan. The revised BEMP protects the environmentally sensitive plant communities on the subject property, consistent with Policy 7.2.4; protects and maintains the diverse wildlife on the subject property, consistent with Objective 7.3; and provides adequate safeguards to protect nest LE-005 from the impacts of the proposed development, consistent with Objective 7.6 and Policy 7.6.1.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that FLWAC enter a final order approving the proposed change to the Bonita Bay DRI. DONE AND ENTERED this 17th day of April, 2008, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 17th day of April, 2008.
The Issue As described in the parties' Prehearing Stipulation Petitioners are challenging the Respondent's (SJRWMD) solicitation process with regard to the "Invitation to submit an Offer to Purchase property known as the Zellwin Airstrip." Petitioners seek to set aside the award of purchase to Intervenors and to have the solicitation process re-advertised. The issue for resolution is whether Petitioners are entitled to that relief.
Findings Of Fact In 1996 the Florida Legislature mandated that the St. Johns River Water Management District (SJRWMD) attempt to purchase farms on the north shore of Lake Apopka as part of a long-term restoration and reclamation project. Petitioners, Rex Shepherd and Dale Harper, are pilots and owners of an aerial advertising business, American Outdoor Aerial Advertising. In early 1998 the business was operating out of Crakes field, a small airstrip owned by Kent Crakes as part of Crakes' North Lake Apopka farm. Petitioners' business owned airplanes and banners which it flew for its advertising clients such as Sears and GEICO. Sometime in early 1998 it became obvious that Petitioners would need to move their operation to another field. There were break-ins at the hanger, and the airstrip was beginning to flood as a result of the reclamation project. Kent Crakes referred Rex Shepherd to Leonard Freeman, the individual with SJRWMD who was involved with land acquisition in the area. Around March or early April 1998 Petitioners commenced discussions with Mr. Freeman regarding their use of the farm airstrip at Zellwin Farms, also part of the SJRWMD Lake Apopka farms acquisition program. Mr. Freeman was the SJRWMD point of contact for the Zellwin Farms acquisition. By early 1998, the property was already under contract and was scheduled to close some time around June 1998. Mr. Freeman and the Petitioners met at the Zellwin Farms airstrip in June 1998, and Petitioners determined the property would be suitable for their operation. Eager to accommodate Petitioners because of their predicament and also in anticipation of the SJRWMD's eventual sale of the Zellwin parcel, Mr. Freeman gave permission for Petitioners to store their equipment on the site and gave them a key. Because Zellwin Farms was beyond what SJRWMD considered to be the lake's historic shoreline, the SJRWMD knew that it would need to dispose of its 1400 acres as surplus, in whole or part. Mr. Freeman's desire was to find a way to dispose of the property as the best thing for the SJRWMD. Thus, because of the Petitioners' immediate interest in relocating their business, Mr. Freeman began negotiating with them for their purchase of the airstrip and related buildings. In September 1998, Mr. Freeman met again with Petitioners at the airstrip and discussed a specific proposal. Petitioners talked about offering $250,000 under a lease-purchase arrangement, and sent a letter dated September 10, 1998, to Mr. Freeman with that offer. Mr. Freeman later suggested that since the appraised value was $275,000, an offer in that amount would be easier to get approved. Mr. Freeman did not have the authority to obligate the SJRWMD to sell the property and Petitioners understood that. Still, Petitioners felt they were negotiating in good faith with staff who could make a strong recommendation to the board. Petitioners believed in early October that they had a hand-shake deal subject to further discussions regarding specific terms. They knew that a competitive solicitation might be an option for the SJRWMD but they also believed that they would be given an opportunity to meet another third party's offer. This belief was based not on some specific agreement for a "right of first refusal," but rather on Mr. Freeman's good-natured assurances that they would work it all out. Mr. Freeman requested that the SJRWMD special counsel develop a draft contract based on Petitioners' offer. The offer would then need to be signed by Petitioners and approved by Mr. Freeman's supervisor before going to the SJRWMD governing board. The counsel never finished the draft and it was never given to Mr. Freeman or the Petitioners. By the end of October 1998, Robert Christianson, Mr. Freeman's supervisor and director of the SJRWMD Department of Operations and Land Resources, learned that Petitioners were flying in and out of the Zellwin airstrip and using it for their business base of operations. This activity was beyond the storage permission that Mr. Freeman had granted. (Even that permission was beyond his individual authority.) Mr. Freeman and Mr. Christianson met with Petitioners on October 27, 1998, to work out a license agreement for their use of the airstrip. Such an agreement was necessary to protect the parties' respective interests and to cover the SJRWMD for any liability in the landlord/tenant relationship. The result of that meeting was a written license agreement for Petitioners to use, maintain, and provide protection for the property for a period from October 30, 1998, to April 30, 1999, subject to revocation with advance notice. Petitioners used the airstrip property under that agreement and made improvements, mostly cleaning up the facility so it could be used. At the October meeting it became obvious to Petitioners that the informal negotiations for their purchase were terminated and that the SJRWMD was going to solicit competitive offers for the purchase. This concerned the Petitioners and they felt let- down by Mr. Freeman. Still, they concentrated on getting the license agreement worked out. Rex Shepherd's account of the October meeting was that Mr. Christianson was very clear about the fact that the SJRWMD had to go for competitive bid, that they were bound by a board and rules and regulations even though both he and Mr. Freeman would like for Petitioners to have the airport, and that they should be able to work it out. At the end of the meeting, and as they were leaving the trailer, Mr. Shepherd commented to Mr. Freeman that he really did not want to lose the airport and wanted to be apprised of what was going on so that if there were a higher bid, he could have the opportunity to match it, or if it were too high, that they would have 30 or 60 days to vacate the property. According to Mr. Shepherd, Mr. Freeman simply responded, "We'll work all that out, don't worry about it." On November 11, 1998, the SJRWMD governing board voted to surplus the Zellwin Farms property with direction to the staff that the sale be widely advertised in the aviation community and not be a sole source deal. Consistent with the board's direction and pursuant to Section 373.089(3), Florida Statutes, the SJRWMD advertised a "Notice of Intention to Sell" the airstrip property in the Orlando Sentinel for three consecutive weeks, November 9, 16, and 23, 1998. The notice identifies the airstrip property as an "Approximately 47-acre agricultural airport facility, 2,200'? square feet asphalt runway, 5,250 ? square feet metal hanger, 2,048 ? storage square feet building, well and septic tank at a location of northwest Orange County, Florida, Sections 20 and 29, T-20-S, R-27-E, on Jones Avenue, 1 ? mile west of U.S. Highway 441, Zellwood." The Notice of Intention to Sell states that "[a]ll interested persons are invited to submit an offer to the District for purchase of said lands. Contact the District . . . and request an Airport Sales Package." Both the Airport Sales Package and the Notice of Intention to Sell state that the airport property will be sold for the highest price obtainable. The sales package states that full cash offers to be paid at closing will be given first consideration and that 10 percent of the purchase price must be paid when the offeror was notified that it was successful. The sales package also states that any person adversely affected by an offer solicitation shall file a Notice of Protest, in writing, prior to the date on which the offers are to be received, and shall file a formal written protest within ten (10) days after filing the Notice of protest pursuant to Florida Administrative Code Rule 40C-1.801. * * * Failure to timely file a notice of protest or failure to timely file a formal written protest shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. (SJRWMD Ex. 3). Both the Notice of Intention to Sell and the sales package require that sealed "offers for purchase" be submitted to the SJRWMD prior to 2:00 p.m. on December 4, 1998, the advertised time for opening of the offers. Nothing in the Notice or sales package reserves a right of first refusal for any person. Instead, both plainly state "no offer will be accepted after the date and hour specified for submittal of offers." (SJRWMD Exhibits 1 and 3) Although Petitioners did not see the newspaper notice, they had knowledge that the SJRWMD advertised the sale of the airstrip property through a competitive solicitation process in the newspaper. They had been clearly informed of need for the competitive process by Mr. Christianson at the October meeting and they were present when a pre-solicitation meeting/inspection took place at the airstrip in November prior to the offers being accepted by the SJRWMD. Intervenors requested a sales package from the SJRWMD on November 30, 1998, and December 2, 1998. Petitioners requested and received a sales package prior to the opening of the offers to purchase. The sales packages were not available to the public until December 2, 1998, the same day Petitioners received their package. Mr. Freeman told Petitioners they needed to submit their bid. Although the sales package stated that facsimile offers would not be accepted by the SJRWMD, Leonard Freeman informed Petitioners that they could fax their Offer to Purchase. The SJRWMD did accept a facsimile offer to purchase from Petitioners on December 4, 1998, at 1:07 p.m. Offers to purchase were opened by the SJRWMD at 2:10 p.m. on December 4, 1998. Petitioners submitted an offer to purchase the airstrip property for $275,000, where Petitioners would pay $1,500.00 per month for 60 months ($90,000 with $72,000 applied toward principal) with a balance of $203,000 cash to be paid at the end of the 60-month term. Intervenors submitted an offer to purchase the airstrip property for $310,000, where Intervenors would put 10 percent down ($31,000 earnest money deposit) at award of Agreement of Purchase and Sale and the balance of $279,000 cash would be paid at closing on or before May 1, 1999. Petitioners' offer to purchase was not the highest offer; it did not provide for cash at closing; and it did not meet the requirement of 10 percent to be paid upon notification. Staff recommended to the SJRWMD board that it award the purchase of the airstrip property to the highest offeror, Intervenors. The governing board approved staff's recommendation at its regularly scheduled meeting on December 9, 1998. On December 9, 1998, Petitioners filed a Notice of Protest. On December 18, 1998, Petitioners filed a copy of their Formal Bid Protest with the SJRWMD. Petitioners never grasped the implications of the competitive solicitation process until after the offers were opened and the award was made to Intervenors. Even if Petitioners had seen the newspaper notice and had received the sales package sooner, they still would not have protested because they understood that their "agreement" was outside of the process. That is, they mistakenly perceived that after the offers were in they could negotiate further to exceed the high offer. Chagrined, and genuinely regretful of the misunderstanding, Mr. Freeman had to tell Petitioners that further negotiations were foreclosed after the offers were opened. Mr. Freeman's earlier assurances to Petitioners were the result of an excess of bonhomie rather than any deception. He wanted them to have the airport and he wanted to work out the sale of surplus property. Petitioners were aware that he did not have the authority to bind his agency to an agreement. Mr. Freeman never specifically told Petitioners they had a right of first refusal; they wanted that advantage and surmised agreement from Mr. Freeman's and Mr. Christianson's vague counsel to not worry and that it would all be worked out. The SJRWMD devised a competitive process for disposition of the Zellwin airstrip that was consistent with its statute and with the direction of its governing board. Intervenors responded with an offer that met all the published requirements. Petitioners did not, and any culpability of SJRWMD's staff for Petitioners' misunderstanding is not so egregious as to require that the process begin again. Petitioners occupied the property, used it, and made improvements to enhance their use. This, however, was in reliance on their license to use the property and not on some certainty that they would ultimately be able to own the property. As Petitioners testified at hearing, they were disappointed that the SJRWMD decided to solicit competitive proposals; they knew that it was possible someone would offer more than they could match. (Harper, Transcript pages 117-120).
Recommendation Based on the foregoing, it is RECOMMENDED: that the SJRWMD enter its final order denying Petitioners' request to reject all bids and re-advertise the sale. DONE AND ENTERED this 24th day of June, 1999, in Tallahassee, Leon County, Florida. MARY CLARK 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 24th day of June, 1999. COPIES FURNISHED: Henry Dean, Executive Director St. Johns River Water Management District Post office Box 1429 Palatka, Florida 32178-1429 John W. Williams, Esquire St. Johns River Water Management District Post Office Box 1429 Palatka, Florida 32178-1429 Clayton D. Simmons, Esquire Stenstrom, McIntosh, Colbert, Whigham And Simmons, P.A. Post Office Box 4848 Sanford, Florida 32772-4848 Stanley Dollen 1230 Kelso Boulevard Windermere, Florida 34786 Herbert Clark 5416 Trimble Park Road Mt. Dora, Florida 32757
The Issue The issue before the Florida Land and Water Adjudicatory Commission (FLWAC) in this proceeding is whether to grant the Petition for Establishment of the Villages of Westport Community Development District (Petition), dated September 4, 2003. The local public hearing was for purposes of gathering information in anticipation of rulemaking by FLWAC.
The Issue Whether Florida Housing Finance Corporation’s (Florida Housing, Corporation, or Respondent) rejection of the funding for the application submitted by Capital Grove Limited Partnership (Capital Grove) was contrary to Florida Housing’s governing statutes, rules, policies, or the specifications of Request for Applications 2014-114 (the RFA). If so, whether Florida Housing’s decision to fund the application submitted by HTG Wellington Family, LLC (HTG Wellington), is contrary to governing statutes, rules, policies, or the RFA specifications.
Findings Of Fact Florida Housing is a public corporation created pursuant to section 420.504, Florida Statutes. Its purpose is to promote the public welfare by administering the governmental function of financing affordable housing in Florida. Pursuant to section 420.5099, Florida Housing is designated as the housing credit agency for Florida within the meaning of section 42(h)(7)(A) of the Internal Revenue Code and has the responsibility and authority to establish procedures for allocating and distributing low-income housing tax credits. The low-income housing tax credit program was enacted by Congress in 1986 to incentivize the private market to invest in affordable rental housing. Tax credits are competitively awarded to applicants in Florida for qualified rental housing projects. Applicants then sell these credits to investors to raise capital (or equity) for their projects, which reduces the debt that the owner would otherwise have to borrow. Because the debt is lower, a tax-credit property can offer lower, more affordable rents. Provided the property maintains compliance with the program requirements, investors receive a dollar-for-dollar credit against their federal tax liability each year over a period of ten years. The amount of the annual credit is based on the amount invested in the affordable housing. Tax credits are made available by the U.S. Treasury to the states annually. Florida Housing is authorized to allocate tax credits and other funding by means of request for proposal or other competitive solicitation in section 420.507(48), and adopted Florida Administrative Code chapter 67-60 to govern the competitive solicitation process for several different programs, including the one for tax credits. Rule 67-60.002(1) defines “Applicant” as “any person or legally-formed entity that is seeking a loan or funding from the Corporation by submitting an application or responding to a competitive solicitation pursuant to this rule chapter for one or more of the Corporation’s programs.” Applicants request in their applications a specific dollar amount of housing credits to be given to the applicant each year for a period of 10 years. Applicants typically sell the rights to that future stream of income tax credits (through the sale of almost all of the ownership interest in the Applicant entity) to an investor to generate the majority of the capital necessary to construct the Development. The amount of housing credits an Applicant may request is based on several factors, including but not limited to a certain percentage of the projected Total Development Cost; a maximum funding amount per development based on the county in which the development will be located; and whether the development is located within certain designated areas of some counties. Florida Housing’s competitive application process for the allocation of tax credits is commenced by the issuance of a Request for Applications. In this case, that document is Request for Applications 2014-114 (the RFA). The RFA was issued November 20, 2014, and responses were due January 22, 2015. Capital Grove submitted Application No. 2015-045C in RFA 2014-114 seeking $1,509,500 in annual allocation of housing credits to finance the construction of a 94-unit residential rental development in Pasco County (a Medium County), to be known as Highland Grove Senior Apartments. HTG Wellington submitted Application No. 2015-101C seeking $1,510,000 in annual allocation of housing credits to finance the construction of a 110-unit multifamily residential development in Pasco County, Florida, to be known as Park at Wellington Apartments. Florida Housing has announced its intention to award funding to nine Medium County Developments, including Park at Wellington in Pasco County (Application No. 2015-101C), but not Highland Grove Senior Apartments. Florida Housing received 82 applications seeking funding in RFA 2014-114, including 76 for Medium County Developments. The process employed by Florida Housing for this RFA makes it virtually impossible for more than one application to be selected for funding in any given medium county. Because of the amount of funding available for medium counties, the typical amount of an applicant’s housing credit request (generally $1.0 to $1.5 million), and the number of medium counties for which developments are proposed, many medium counties will not receive an award of housing credit funding in this RFA. Florida Housing intends to award funding to nine developments in nine different medium counties. The applications were received, processed, deemed eligible or ineligible, scored, and ranked, pursuant to the terms of RFA 2014-114; Florida Administrative Code chapters 67- 48 and 67-60; and applicable federal regulations. Florida Housing’s executive director appointed a Review Committee of Florida Housing staff to evaluate the applications for eligibility and scoring. Applications are considered for funding only if they are deemed “eligible,” based on whether the application complies with Florida Housing’s various content requirements. Of the 82 applications submitted to Florida Housing in RFA 2014-114, 69 were found “eligible,” and 13 were found ineligible, including Capital Grove. Florida Housing determined that Capital Grove was ineligible on the ground that its Letter of Credit was deficient under the terms of the RFA. A five-page spreadsheet created by Florida Housing, entitled “RFA 2014-114 – All Applications,” identifying all eligible and ineligible applications was provided to all Applicants. In addition to scoring, Applicants received a lottery number to be applied in tie situations, with the lower number given preference. Capital Grove received lottery number 12. HTG Wellington received lottery number 9. On March 11, 2015, the Review Committee met and considered the applications submitted in response to the RFA, and made recommendations regarding the scoring and ranking of the applications to Florida Housing’s Board of Directors (the Board). Capital Grove’s Letter of Credit The RFA provides for a Withdrawal Disincentive in which an applicant could either provide a $25,000 check or a $25,000 Letter of Credit that would be forfeited if the application was withdrawn by the applicant before a certain period of time. Applicants so withdrawing would also suffer a deduction from the full developer-experience point total in certain future Requests for Applications issued by Florida Housing. According to specifications in the RFA, any Letter of Credit submitted must be in compliance with all the requirements of subsection 4.a. of Section Three, Procedures and Provisions of the RFA, which provides in pertinent part: 4. $25,000 Letter of Credit. Each Applicant not submitting a $25,000 Application Withdrawal Cash Deposit (as outlined in 3 above) must submit to the Corporation a letter of Credit that meets the following requirements with its Application: a. The Letter of Credit must: Be issued by a bank, the deposits of which are insured by the FDIC, and which has a banking office located in the state of Florida available for presentation of the Letter of Credit. Be on the issuing bank’s letterhead, and identify the bank’s Florida office as the office for presentation of the Letter of Credit. Be, in form, content and amount, the same as the Sample Letter of Credit set out in Item 14 of Exhibit C of the RFA, and completed with the following: Issue Date of the Letter of Credit (LOC) which must be no later than January 22, 2015. LOC number. Expiration Date of the LOC which must be no earlier than January 22, 2016. Issuing Bank’s legal name. Issuing Bank’s Florida Presentation Office for Presentation of the LOC. Florida Housing’s RFA number RFA 2014- 114. Applicant’s name as it appears on the Application for which the LOC is issued. Development name as it appears on the Application for which the LOC is issued. Signature of the Issuing Bank’s authorized signatory. Printed Name and Title of the Authorized Signatory. The Sample Letter of Credit included in Exhibit C, Item 14 of the RFA reads: (Issuing Bank’s Letterhead) Irrevocable Unconditional Letter of Credit To/Beneficiary: Florida Housing Finance Corporation Issue Date: [a date that is no later than January 22, 2015] Attention: Director of Multifamily Programs 227 N. Bronough Street, Suite 5000 Tallahassee, Florida 32301 Letter of Credit No.: Expiration Date: [a date that is no earlier than January 22, 2016] Issuing Bank: Florida Presentation Office: FHFC RFA # 2014-114 Applicant: Development: Gentlemen: For the account of the Applicant, we, the Issuing Bank, hereby authorize Florida Housing Finance Corporation to draw on us at sight up to an aggregate amount of Twenty- Five Thousand and No/100 Dollars ($25,000.00). This letter of credit is irrevocable, unconditional, and nontransferable. Drafts drawn under this letter of credit must specify the letter of credit number and be presented at our Florida Presentation Office identified above not later than the Expiration Date. Any sight draft may be presented to us by electronic, reprographic, computerized or automated system, or by carbon copy, but in any event must visibly bear the word “original.” If the document is signed, the signature may consist of (or may appear to us as) an original handwritten signature, a facsimile signature or any other mechanical or electronic method of authentication. Payment against this letter of credit may be made by wire transfer of immediately available funds to the account specified by you, or by deposit of same day funds in a designated account you maintain with us. Unless we notify you in writing at least thirty (30) days prior to the Expiration Date, the Expiration Date of this letter of credit must be extended automatically for successive one-month periods. This letter of credit sets forth in full the terms of our obligations to you, and such undertaking shall not in any way be modified or amplified by any agreement in which this letter is referred to or to which this letter of credit relates, and any such reference shall not be deemed to incorporate herein by reference any agreement. We engage with you that sight drafts drawn under, and in compliance with, the terms of this letter of credit will be duly honored at the Presentation Office. We are an FDIC insured bank, and our Florida Presentation Office is located in Florida as identified above. Yours very truly, [Issuing Bank] By Print Name Print Title Despite these requirements, Capital Grove submitted an “Irrevocable Standby Letter of Credit” issued by PNC Bank National Association (PNC). Capital Grove’s Letter of Credit provides, in pertinent part: Beneficiary: Applicant: Florida Housing Finance Westbrook Housing Corp. Corp. Development, LLC 4110 Southpoint Blvd., 227 North Bronough Street Ste 206 Suite 5000 Jacksonville, Fl 32216 Tallahassee, Fl 32301 ATTENTION: DIR. OF MULTI- FBO CAPITAL GROVE FAMILY PROGRAMS LIMITED PARTNERSHIP IRREVOCABLE STANDBY LETTER OF CREDIT OUR REFERENCE: 18123166-00-00 AMOUNT: USD $25,000.00 ISSUE DATE: JANUARY 20, 2015 EXPIRY DATE: JANUARY 22, 2016 EPIRY PLACE: OUR COUNTER RE: FHFC RFA #2014-114 DEVELOPMENT: HIGHLAND GROVE SENIOR APARTMENTS GENTLEMEN: WE HEREBY ESTABLISH OUR IRREVOCABLE STANDBY LETTER OF CREDIT NO. 18123166-00-000 IN FAVOR OF FLORIDA HOUSING FINANCE CORPORATION FOR THE ACCOUNT OF WESTBROOK HOUSING DEVELOPMENT LLC AVAILABLE FOR PAYMENT AT OUR COUNTERS IN AN AMOUNT OF USD $25,000.00 (TWENTY FIVE THOUSAND AND 00/100 UNITED STATES DOLLARS) AGAINST BENEFICIARY'S PURPORTEDLY SIGNED STATEMENT AS FOLLOWS: "I (INSERT NAME AND TITLE) CERTIFY THAT I AM AN AUTHORIZED REPRESENTATIVE OF FLORIDA HOUSING FINANCE CORPORATION AND HEREBY DEMAND PAYMENT OF USD (INSERT AMOUNT) UNDER PNC BANK, NATIONAL ASSOCIATION LETTER OF CREDIT NO. 18123166-00-000. I FURTHER CERTIFY THAT WESTBROOK HOUSING DEVELOPMENT, LLC HAS FAILED TO COMPLY UNDER THE PROJECT NAME: HIGHLAND GROVE SENIOR APARTMENTS BETWEEN FLORIDA HOUSING FINANCE CORPORATION AND WESTBROOK HOUSING DEVELOPMENT, LLC." Ken Reecy, Director of Multifamily Programs for Florida Housing, personally reviewed all Letters of Credit submitted by RFA applicants, and reported his findings to the Review Committee. The Review Committee recommended finding Capital Grove’s application nonresponsive and ineligible for funding because Capital Grove failed to include a responsive Letter of Credit. The Review Committee also found four other applications ineligible for failing to meet the Letter of Credit requirements, all of which used PNC Bank and involved entities related to Capital Grove, including Westbrook Housing Development, LLC, appearing as Co-Developer. All such PNC Letters of Credit failed for the same reasons. Mr. Reecy and the Review Committee found that the Letters of Credit from PNC Bank (including that submitted by Capital Grove) did not meet the facial requirements of the RFA, in that the Letters of Credit were not in the name of the applicant. The General Partner of the applicant, Capital Grove Limited Partnership, is Capital Grove GP, LLC. The Co-Developer entities are JPM Development, LLC, and Westbrook Housing Development, LLC. Co-Developer Westbrook Housing Development, LLC, a Michigan Company authorized to conduct business within the State of Florida, is a different legal entity from Co-Developer JPM Development, LLC. Mr. Reecy and the Review Committee also found the PNC Letters of Credit (including that submitted by Capital Grove) nonresponsive to the specification of the RFA because the Letters included a condition requiring Florida Housing, in order to draw on the Letter of Credit, to certify that the Co- Developer (and not the applicant) had “failed to comply under the project name: Highland Grove Senior Apartments.” However, under the RFA specifications, the action that is the basis for the presentment of the Letter of Credit is a withdrawal of the application by the applicant, not the developer. Only an applicant may withdraw an application. If the Letter of Credit cannot be drawn upon, the RFA provides that the applicant, “shall be responsible for the payment of the $25,000 to the Corporation; payment shall be due from the applicant to the Corporation within 10 calendar days following written notice from the Corporation.” Applicant Capital Grove is a single-purpose entity that has no assets. In order to collect on the Letter of Credit submitted by Capital Grove, Florida Housing would have to submit a different certification than that called for under the RFA sample letter of credit. According to Kathleen Spiers, Vice President of PNC Bank, to draw down the Letter of Credit, Florida Housing would have to copy the statement outlined in paragraph 2 of the Capital Grove Letter of Credit, sign it, and submit it to PNC to draw upon the letter of credit. At the final hearing, Mr. Reecy testified, “I am not prepared to certify to something that isn’t true. I am not going to certify that the developer didn’t comply by the Applicant withdrawing.” All other Letters of Credit submitted by applicants under this RFA were accepted as responsive. HTG Wellington’s Unit Count HTG Wellington indicated in its application to Florida Housing that its proposed Park at Wellington Development would be 110 multifamily units. In its application for Local Government Support, HTG Wellington described the Development as a 120-unit, multifamily development in five three-story buildings. The RFA requires a minimum $50,000 Local Government Contribution in Pasco County for an applicant to receive the maximum of five points. In order to obtain a Local Government Contribution, tax credit developers must submit an application to Pasco County at least six weeks before the matter is presented to the Board of County Commissioners for approval. Pasco County, in turn, has their underwriter, Neighborhood Lending Partners ("NLP"), organize the applications and create an underwriting package. NLP does not make a recommendation to the Board of County Commissioners for funding. Rather, NLP alerts Pasco County if there is a red flag concerning the Development and scores the applications based upon financial stability of the organization, financing of the project, and the development pro forma. HTG Wellington submitted an application for Local Government Contribution to Pasco County in November 2014. The application contemplated a 120-unit development. Impact fees schedules are adopted by the Pasco County Board of Commissioners. Pasco County has established an impact fee rate for affordable and non-affordable development and the difference between the two is multiplied by the number of units to determine the impact fee amount. The impact fee waiver amount approved for Park at Wellington Apartments was $219,600. This amount was calculated based upon 120 units contemplated in November 2014, multiplied by $1830.00, which is the difference between the normal impact fee rate, minus the rate for affordable housing development. The $219,600 figure was used in HTG Wellington’s application. At 110 units (as opposed to 120 units), the total Local Government Contribution available to HTG Wellington is $201,300. Either amount ($219,600 or $201,300) meets the minimum for HTG Wellington to receive five points for its Local Government Contribution. The change in the contribution amount would have no effect on the scoring of the HTG Wellington application. Pasco County’s Manager of Community Development and Officer of Community Development, George Romagnoli, testified that for approximately 15 years, Pasco County has employed a strategy to approve all applications for Local Government Contribution and then let Florida Housing choose which Development will receive tax credits. Pasco County is not concerned about the ultimate accuracy of the number of units submitted for a Contribution –- as stated by Mr. Romagnoli: "We funded 84, 120, whatever. It's really not material to the approval one way or the other." Although Florida Housing approved HTG Wellington’s application before discovering the discrepancy, had Florida Housing discovered the discrepancy in the number of units during the scoring process, the discrepancy would have been deemed a minor irregularity unless the discrepancy resulted in a change in scoring or otherwise rendered the application nonresponsive as to some material requirement and the discrepancy would generally be handled with a simple adjustment to the amount presented on the application Pro Forma, if necessary. Additionally, changes to the number of units in a development may be increased (but not decreased) under certain circumstances during the credit underwriting process which follows the competitive solicitation process. The discrepancy in the number of units does not provide any competitive advantage to HTG Wellington. The discrepancy in the number of units does not provide a benefit to HTG Wellington not enjoyed by others. Florida Housing’s waiver of the discrepancy in the number of units does not adversely impact the interests of the public. HTG Wellington’s Bus Stop The RFA allows an applicant to obtain 18 proximity points, including six points for a Public Bus Transfer Stop. Florida Housing awarded HTG Wellington 4.5 proximity points for its purported Public Bus Transfer Stop. The RFA defines a Public Bus Transfer Stop as: This service may be selected by all Applicants, regardless of the Demographic Commitment selected at question 2 of Exhibit For purposes of proximity points, a Public Bus Transfer Stop means fixed location at which passengers may access at least three routes of public transportation via buses. Each qualifying route must have a scheduled stop at the Public Bus Transfer Stop at least hourly during the times of 7 am to 9 am and also during the times of 4 pm to 6 pm Monday through Friday, excluding holidays on a year-round basis. This would include both bus stations (i.e. hub) and bus stop with multiple routes. Bus routes must be established or approved by a Local Government department that manages public transportation. Buses that travel between states will not be considered. In response to this requirement HTG Wellington submitted a Surveyor Certification Form which lists coordinates submitted to qualify for a Public Bus Transfer Stop. The site identified by HTG Wellington as a Public Bus Transfer Stop, however, is not a fixed location where passengers may access at least three routes of public transportation. While another bus stop which serves an additional two routes is within 700 feet, stops cannot be combined for purposes of the RFA. Therefore, the site designated as a Public Bus Transfer Stop by HTG Wellington is not a “fixed location” for purposes of the RFA and HTG Wellington is not entitled to obtain proximity points for a Public Bus Transfer Stop. Not including the 4.5 proximity points for a Public Bus Transfer Stop, HTG was awarded 11.5 total proximity points for selected Community Services. The required minimum total of proximity points for developments located in a medium county that must be achieved in order to be eligible to receive the maximum amount of 18 points as set forth in the RFA is 9. HTG had more than the required minimum total of proximity points to receive the maximum award of 18 proximity points based on its Community Services score alone. The disqualification of HTG’s submitted Public Bus Transfer Stop would have no effect on the scoring or ranking of the HTG Wellington application, nor affect its ranking relative to any other application, nor affect the ultimate funding selection. The RFA requires each applicant to read and sign at Attachment A, an Applicant Certification and Acknowledgement Form (the Form). The signing of the Form is mandatory. Page 5, Paragraph 8 of the Form provides: In eliciting information from third parties required by and/or included in this Application, the Applicant has provided such parties information that accurately describes the Development as proposed in this Application. The Applicant has reviewed the third party information included in this Application and/or provided during the credit underwriting process and the information provided by any such party is based upon, and accurate with respect to, the Development as proposed in this Application. Even though there was a discrepancy in the unit numbers submitted to Pasco County for a Local Government Contribution and its application submitted in response to the RFA, HTG signed the Form. No evidence was submitted indicating that HTG signed the Form with knowledge of the discrepancy.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida Housing Finance Corporation enter a final order: Rejecting Capital Grove’s application as nonresponsive and denying the relief requested in its Petition; Concluding that Capital Grove lacks standing to bring allegations against HTG Wellington; and, Upholding Florida Housing’s scoring and ranking of the HTG Wellington application. DONE AND ENTERED this 3rd day of August, 2015, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida32399-3060 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of August, 2015.
The Issue Whether Respondent, Xencom Facility Management, LLC (Xencom), terminated the employment of Petitioners solely because the contract under which they were working ended.
Findings Of Fact Xencom provides general maintenance, landscaping, housekeeping, and office cleaning services to retail facilities. In September of 2015, Xencom entered three contracts for services with CREFII Market Street Holdings, LLC (CREFII). The contracts were to provide maintenance, landscaping, and office cleaning services for a mall known as Market Street @ Heathbrook (Market Street) in Ocala, Florida. Michael Ponds, Xencom’s president, executed the contracts on behalf of Xencom. Two individuals executed the contracts on behalf of CREFII. One was Gar Herring, identified as manager for Herring Ocala, LLC. The other was Bernard E. McAuley, identified as manager of Tricom Market Street at Heathbrook, LLC. MG Herring was not a party or signatory to the contracts. MG Herring does not own or operate Market Street. A separate entity, The MG Herring Property Group, LLC (Property Group), operated Market Street. The contracts, in terms stated in an exhibit to them, established a fixed price for the year’s work, stated the scope of services, and detailed payment terms. They also identified labor and labor-related costs in detail that included identifying the Xencom employees involved, their compensation, and their weekly number of hours. The contract exhibits also identified operating costs, including equipment amortization, equipment repairs, fuel expenses, vacation costs, health insurance, and storage costs. The contracts ended December 31, 2016. The contracts specify that Xencom is an independent contractor. Each states: “Contractor is an independent contractor and not an employee or agent of the owner. Accordingly, neither Contractor nor any of Contractor’s Representatives shall hold themselves out as, or claim to be acting in the capacity of, an agent or employee of Owner.” The contracts also specify that the property manager may terminate the contract at any time without reason for its convenience. The contracts permit Xencom to engage subcontractors with advance approval of the property manager. They broadly describe the services that Xencom is to provide. Xencom has over 80 such contracts with different facilities. As the contracts contemplate, only Xencom exerted direct control of the Petitioners working at Market Street. Property Group could identify tasks and repairs to be done. Xencom decided who would do them and how. In 2013, Xencom hired Michael Harrison to work as its Operations Manager at Market Street. He was charged with providing services for which Property Group contracted. His immediate supervisor was Xencom’s Regional Manager. In 2016, that was David Snell. Mr. Snell was not located at Market Street. Property Group also did not have a representative on site. Before Xencom hired him, Mr. Harrison worked at Market Street for Property Group. Xencom hired the remaining Petitioners to work at Market Street under Mr. Harrison’s supervision. Each of the Petitioners completed an Application for Employment with Xencom. The application included a statement, initialed by each Petitioner, stating, “Further, I understand and agree that my employment is for no definite period and I may be terminated at any time without previous notice.” All of the Petitioners also received Xencom’s employee handbook. As Xencom’s Operations Manager and supervisor of the other Petitioners, Mr. Harrison was responsible for day-to-day management of Petitioners. He scheduled their work tasks, controlled shifts, established work hours, and assigned tasks. Mr. Harrison also decided when Petitioners took vacations and time off. His supervisor expected him to consult with Property Group to ensure it knew what support would be available and that he knew of any upcoming events or other considerations that should be taken into account in his decisions. As Operations Manager, Mr. Harrison was also responsible for facilitating payroll, procuring supplies, and managing Xencom’s equipment at the site. Xencom provided Petitioners work uniforms that bore Xencom’s name. Xencom required Petitioners to wear the uniforms at work. Xencom provided the supplies and equipment that Petitioners used at work. Only Xencom had authority to hire or fire the employees providing services to fulfill its contracts with the property manager. Only Xencom had authority to modify Petitioners’ conditions of employment. Neither MG Herring, Property Group, nor Xencom held out Petitioners as employees of MG Herring or Property Group. There is no evidence that MG Herring or Property Group employed 15 or more people. Property Group hired Tina Wilson as Market Street’s on- site General Manager on February 1, 2016. Until then there was no Property Group representative at the site. The absence of a Property Group representative on-site left Mr. Harrison with little oversight or accountability under the Xencom contracts for Market Street. His primary Property Group contact was General Manager Norine Bowen, who was not located at the property. Ms. Wilson’s duties included community relations, public relations, marketing, leasing, litigation, tenant coordination, lease management, construction management, and contract management. She managed approximately 40 contracts at Market Street, including Xencom’s three service agreements. Ms. Wilson was responsible for making sure the contracts were properly executed. Managing the Xencom contracts consumed less than 50 percent of Ms. Wilson’s time. During the last weeks of 2016, Mr. Harrison intended to reduce the hours of Kylie Smithers. Ms. Wilson requested that, since Ms. Smithers was to be paid under the contract for full- time work, Ms. Smithers assist her with office work such as filing and making calls. Mr. Harrison agreed and scheduled Ms. Smithers to do the work. This arrangement was limited and temporary. It does not indicate Property Group control over Xencom employees. Ms. Wilson was Xencom’s point of contact with Property Group. She and Mr. Harrison had to interact frequently. Ms. Wilson had limited contact with the other Xencom employees at Market Street. Friction and disagreements arose quickly between Mr. Harrison and Ms. Wilson. They may have been caused by having a property manager representative on-site after Mr. Harrison’s years as either the manager representative himself or as Xencom supervisor without a property manager on-site. They may have been caused by personality differences between the two. They may have been caused by the alleged sexual and crude comments that underlie the claims of discrimination in employment. They may have been caused by a combination of the three factors. On November 21, 2016, Norine Bowen received an email from the address xencomempoyees@gmail.com with the subject of “Open your eyes about Market Street.” It advised that some employees worked at night for an event. It said that Ms. Wilson gave the Xencom employees alcohol to drink while they were still on the clock. The email said that there was a fight among Xencom employees. The email also said that at another event at a restaurant where Xencom employees were drinking, Ms. Wilson gave Ms. Smithers margaritas to drink and that Ms. Smithers was underage. The email claimed that during a tree-lighting event Ms. Wilson started drinking around 3:30 p.m. It also stated that Ms. Wilson offered a Xencom employee a drink. The email went on to say that children from an elementary school and their parents were present and that Ms. Wilson was “three sheets to the wind.” The email concludes stating that Ms. Wilson had been the subject of three employee lawsuits. On December 14, 2016, Ms. Wilson, Ms. Bowen, and Mr. Snell met at Property Group’s office in Market Street for their regular monthly meeting to discuss operations at Market Street. Their discussion covered a number of management issues including a Xencom employee’s failure to show up before 8:00 to clean as arranged, security cameras, tenants who had not paid rent, lease questions, HVAC questions, and rats on the roof. They also discussed the email’s allegations. The participants also discussed a number of dissatisfactions with Mr. Harrison’s performance. Near the end of a discussion about the anonymous email, this exchange occurred:2/ Bowen: Okay, so I know that David [Snell], I think his next step is to conduct his own investigation with his [Xencom] people, and HR is still following up with John Garrett, and you’re meeting with Danny [intended new Xencom manager for Market Street] tonight? David Snell: Yes. Bowen: To finish up paperwork, and, based on his investigation, it will be up to Xencom to figure out what to do with people that are drinking on property, off the clock or on the clock, you know, whatever, what their policy is. * * * Bowen: So, I don’t know what to make of it. I’m just here to do an investigation like I’m supposed to do and David is here to pick up the pieces and meet with his folks one-on- one, and we’ll see where this takes us. This exchange and the remainder of the recording do not support a finding that Property Group controlled Xencom’s actions or attempted to control them. The participants were responsibly discussing a serious complaint they had received, their plan to investigate it, and pre-existing issues with Mr. Harrison. The exchange also makes clear that all agreed the issues involving Xencom employees were for Xencom to address, and the issues involving Property Group employees were for Property Group to address. At the time of the December 14, 2016, meeting, the participants were not aware of any complaints from Mr. Harrison or Mr. Smithers of sexual harassment or discrimination by Ms. Wilson. On December 15, 2016, Gar Herring and Norine Bowen received an email from Mr. Harrison with an attached letter to Xencom’s Human Resources Manager and others. Affidavits from Petitioners asserting various statements and questions by Ms. Wilson about Mr. Harrison’s and Mr. Smithers’ sex life and men’s genitalia and statements about her sex life and the genitalia of men involved were attached. Xencom President Michael Ponds received a similar email with attachments on the same day. On December 21, 2016, Mr. Ponds received a letter from Herring Ocala, LLC, and Tricom Market Street at Heathbrook, LLC, terminating the service agreements. Their agreements with Xencom were going to expire December 31, 2016. They had been negotiating successor agreements. However, they had not executed any. Xencom terminated Petitioners’ employment on December 21, 2016. Xencom no longer needed Petitioners’ services once MG Herring terminated the contract with Xencom. This was the sole reason it terminated Petitioners.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order denying the petitions of all Petitioners. DONE AND ENTERED this 15th day of May, 2018, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 15th day of May, 2018.
The Issue The threshold issue in this case is whether the decisions giving rise to the dispute, which concern the allocation and disbursement of funds appropriated to Respondent by the legislature and thus involve the preparation or modification of the agency's budget, are subject to quasi-judicial adjudication under the Administrative Procedure Act. If the Division of Administrative Hearings were possessed of subject matter jurisdiction, then the issues would be whether Respondent is estopped from implementing its intended decisions to "de- obligate" itself from preliminary commitments to provide low- interest loans to several projects approved for funding under the Community Workforce Housing Innovation Pilot Program; and whether such intended decisions would constitute breaches of contract or otherwise be erroneous, arbitrary, capricious, or abuses of the agency's discretion.
Findings Of Fact Petitioners Pasco CWHIP Partners, LLC ("Pasco Partners"); Legacy Pointe, Inc. ("Legacy"); Villa Capri, Inc. ("Villa Capri"); Prime Homebuilders ("Prime"); and MDG Capital Corporation ("MDG") (collectively, "Petitioners"), are Florida corporations authorized to do business in Florida. Each is a developer whose business activities include building affordable housing. The Florida Housing Finance Corporation ("FHFC") is a public corporation organized under Chapter 420, Florida Statutes, to implement and administer various affordable housing programs, including the Community Workforce Housing Innovation Pilot Program ("CWHIP"). The Florida Legislature created CWHIP in 2006 to subsidize the cost of housing for lower income workers performing "essential services." Under CWHIP, FHFC is authorized to lend up to $5 million to a developer for the construction or rehabilitation of housing in an eligible area for essential services personnel. Because construction costs for workforce housing developments typically exceed $5 million, developers usually must obtain additional funding from sources other than CWHIP to cover their remaining development costs. In 2007, the legislature appropriated $62.4 million for CWHIP and authorized FHFC to allocate these funds on a competitive basis to "public-private" partnerships seeking to build affordable housing for essential services personnel.1 On December 31, 2007, FHFC began soliciting applications for participation in CWHIP. Petitioners submitted their respective applications to FHFC on or around January 29, 2008. FHFC reviewed the applications and graded each of them on a point scale under which a maximum of 200 points per application were available; preliminary scores and comments were released on March 4, 2008. FHFC thereafter provided applicants the opportunity to cure any deficiencies in their applications and thereby improve their scores. Petitioners submitted revised applications on or around April 18, 2008. FHFC evaluated the revised applications and determined each applicant's final score. The applications were then ranked, from highest to lowest score. The top-ranked applicant was first in line to be offered the chance to take out a CWHIP loan, followed by the others in descending order to the extent of available funds. Applicants who ranked below the cut-off for potential funding were placed on a wait list. If, as sometimes happens, an applicant in line for funding were to withdraw from CWHIP or fail for some other reason to complete the process leading to the disbursement of loan proceeds, the highest-ranked applicant on the wait list would "move up" to the "funded list." FHFC issued the final scores and ranking of applicants in early May 2006. Petitioners each had a project that made the cut for potential CWHIP funding.2 Some developers challenged the scoring of applications, and the ensuing administrative proceedings slowed the award process. This administrative litigation ended on or around November 6, 2008, after the parties agreed upon a settlement of the dispute. On or about November 12, 2008, FHFC issued preliminary commitment letters offering low-interest CWHIP loans to Pasco Partners, Legacy, Villa Capri, Prime (for its Village at Portofino Meadows project), and MDG. Each preliminary commitment was contingent upon: Borrower and Development meeting all requirements of Rule Chapter 67-58, FAC, and all other applicable state and FHFC requirements; and A positive credit underwriting recommendation; and Final approval of the credit underwriting report by the Florida Housing Board of Directors. These commitment letters constituted the necessary approval for each of the Petitioners to move forward in credit underwriting, which is the process whereby underwriters whom FHFC retains under contract verify the accuracy of the information contained in an applicant's application and examine such materials as market studies, engineering reports, business records, and pro forma financial statements to determine the project's likelihood of success. Once a credit underwriter completes his analysis of an applicant's project, the underwriter submits a draft report and recommendation to FHFC, which, in turn, forwards a copy of the draft report and recommendation to the applicant. Both the applicant and FHFC then have an opportunity to submit comments regarding the draft report and recommendation to the credit underwriter. After that, the credit underwriter revises the draft if he is so inclined and issues a final report and recommendation to FHFC. Upon receipt of the credit underwriter's final report and recommendation, FHFC forwards the document to its Board of Directors for approval. Of the approximately 1,200 projects that have undergone credit underwriting for the purpose of receiving funding through FHFC, all but a few have received a favorable recommendation from the underwriter and ultimately been approved for funding. Occasionally a developer will withdraw its application if problems arise during underwriting, but even this is, historically speaking, a relatively uncommon outcome. Thus, upon receiving their respective preliminary commitment letters, Petitioners could reasonably anticipate, based on FHFC's past performance, that their projects, in the end, would receive CWHIP financing, notwithstanding the contingencies that remained to be satisfied. There is no persuasive evidence, however, that FHFC promised Petitioners, as they allege, either that the credit underwriting process would never be interrupted, or that CWHIP financing would necessarily be available for those developers whose projects successfully completed underwriting. While Petitioners, respectively, expended money and time as credit underwriting proceeded, the reasonable inference, which the undersigned draws, is that they incurred such costs, not in reliance upon any false promises or material misrepresentations allegedly made by FHFC, but rather because a favorable credit underwriting recommendation was a necessary (though not sufficient) condition of being awarded a firm loan commitment. On January 15, 2009, the Florida Legislature, meeting in Special Session, enacted legislation designed to close a revenue shortfall in the budget for the 2008-2009 fiscal year. Among the cuts that the legislature made to balance the budget was the following: The unexpended balance of funds appropriated by the Legislature to the Florida Housing Finance Corporation in the amount of $190,000,000 shall be returned to the State treasury for deposit into the General Revenue Fund before June 1, 2009. In order to implement this section, and to the maximum extent feasible, the Florida Housing Finance Corporation shall first reduce unexpended funds allocated by the corporation that increase new housing construction. 2009 Fla. Laws ch. 2009-1 § 47. Because the legislature chose not to make targeted cuts affecting specific programs, it fell to FHFC would to decide which individual projects would lose funding, and which would not. The legislative mandate created a constant-sum situation concerning FHFC's budget, meaning that, regardless of how FHFC decided to reallocate the funds which remained at its disposal, all of the cuts to individual programs needed to total $190 million in the aggregate. Thus, deeper cuts to Program A would leave more money for other programs, while sparing Program B would require greater losses for other programs. In light of this situation, FHFC could not make a decision regarding one program, such as CWHIP, without considering the effect of that decision on all the other programs in FHFC's portfolio: a cut (or not) here affected what could be done there. The legislative de-appropriation of funds then in FHFC's hands required, in short, that FHFC modify its entire budget to account for the loss. To enable FHFC to return $190 million to the state treasury, the legislature directed that FHFC adopt emergency rules pursuant to the following grant of authority: In order to ensure that the funds transferred by [special appropriations legislation] are available, the Florida Housing Finance Corporation shall adopt emergency rules pursuant to s. 120.54, Florida Statutes. The Legislature finds that emergency rules adopted pursuant to this section meet the health, safety, and welfare requirements of s. 120.54(4), Florida Statutes. The Legislature finds that such emergency rulemaking power is necessitated by the immediate danger to the preservation of the rights and welfare of the people and is immediately necessary in order to implement the action of the Legislature to address the revenue shortfall of the 2008-2009 fiscal year. Therefore, in adopting such emergency rules, the corporation need not publish the facts, reasons, and findings required by s. 120.54(4)(a)3., Florida Statutes. Emergency rules adopted under this section are exempt from s. 120.54(4)(c), Florida Statutes, and shall remain in effect for 180 days. 2009 Fla. Laws ch. 2009-2 § 12. The governor signed the special appropriations bills into law on January 27, 2009. At that time, FHFC began the process of promulgating emergency rules. FHFC also informed its underwriters that FHFC's board would not consider any credit underwriting reports at its March 2009 board meeting. Although FHFC did not instruct the underwriters to stop evaluating Petitioners' projects, the looming reductions in allocations, coupled with the board's decision to suspend the review of credit reports, effectively (and not surprisingly) brought credit underwriting to a standstill. Petitioners contend that FHFC deliberately intervened in the credit underwriting process for the purpose of preventing Petitioners from satisfying the conditions of their preliminary commitment letters, so that their projects, lacking firm loan commitments, would be low-hanging fruit when the time came for picking the deals that would not receive funding due to FHFC's obligation to return $190 million to the state treasury. The evidence, however, does not support a finding to this effect. The decision of FHFC's board to postpone the review of new credit underwriting reports while emergency rules for drastically reducing allocations were being drafted was not intended, the undersigned infers, to prejudice Petitioners, but to preserve the status quo ante pending the modification of FHFC's budget in accordance with the legislative mandate. Indeed, given that FHFC faced the imminent prospect of involuntarily relinquishing approximately 40 percent of the funds then available for allocation to the various programs under FHFC's jurisdiction, it would have been imprudent to proceed at full speed with credit underwriting for projects in the pipeline, as if nothing had changed. At its March 13, 2009, meeting, FHFC's board adopted Emergency Rules 67ER09-1 through 67ER09-5, Florida Administrative Code (the "Emergency Rules"), whose stated purpose was "to establish procedures by which [FHFC would] de- obligate the unexpended balance of funds [previously] appropriated by the Legislature " As used in the Emergency Rules, the term "unexpended" referred, among other things, to funds previously awarded that, "as of January 27, 2009, [had] not been previously withdrawn or de-obligated . . . and [for which] the Applicant [did] not have a Valid Firm Commitment and loan closing [had] not yet occurred." See Fla. Admin. Code R. 67ER09-2(29). The term "Valid Firm Commitment" was defined in the Emergency Rules to mean: a commitment issued by the [FHFC] to an Applicant following the Board's approval of the credit underwriting report for the Applicant's proposed Development which has been accepted by the Applicant and subsequent to such acceptance there have been no material, adverse changes in the financing, condition, structure or ownership of the Applicant or the proposed Development, or in any information provided to the [FHFC] or its Credit Underwriter with respect to the Applicant or the proposed Development. See Fla. Admin. Code R. 67ER09-2(33). There is no dispute concerning that fact that, as of January 27, 2009, none of the Petitioners had received a valid firm commitment or closed a loan transaction. There is, accordingly, no dispute regarding the fact that the funds which FHFC had committed preliminarily to lend Petitioners in connection with their respective developments constituted "unexpended" funds under the pertinent (and undisputed) provisions of the Emergency Rules, which were quoted above. In the Emergency Rules, FHFC set forth its decisions regarding the reallocation of funds at its disposal. Pertinent to this case are the following provisions: To facilitate the transfer and return of the appropriated funding, as required by [the special appropriations bills], the [FHFC] shall: * * * Return $190,000,000 to the Treasury of the State of Florida, as required by [law]. . . . The [FHFC] shall de-obligate Unexpended Funding from the following Corporation programs, in the following order, until such dollar amount is reached: All Developments awarded CWHIP Program funding, except for [a few projects not at issue here.] * * * See Fla. Admin. Code R. 67ER09-3. On April 24, 2009, FHFC gave written notice to each of the Petitioners that FHFC was "de-obligating" itself from the preliminary commitments that had been made concerning their respective CWHIP developments. On or about June 1, 2009, FHFC returned the de- appropriated funds, a sum of $190 million, to the state treasury. As a result of the required modification of FHFC's budget, 47 deals lost funding, including 16 CWHIP developments to which $83.6 million had been preliminarily committed for new housing construction.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that FHFC enter a Final Order dismissing these consolidated cases for lack of jurisdiction. DONE AND ENTERED this 18th day of February, 2010, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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 18th day of February, 2010.
The Issue Does the Petition to establish the Lakewood Ranch Community Development District 2 meet the 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 (CDD or District) of approximately 2,080 acres, located entirely within the unincorporated area of Manatee County. The proposed District will be located generally south of the Braden River, north of the Manatee/Sarasota County line, and east of I-75, within the unincorporated area of Manatee County. The proposed District will be eligible to exercise all powers set forth in Chapter 190, Florida Statutes, including, but not limited to, the ability to finance, own, operate and maintain certain community facilities and services. The special powers set forth in Section 190.012(2) (a-f), Florida Statutes, may be exercised with the consent of Manatee County, and pursuant to an Interlocal Agreement. Currently, the land uses in the area to be included in the proposed district are primarily agricultural (improved pasture). A former borrow pit which has been almost totally reclaimed into a lake also exists on-site. Existing land uses adjacent to the proposed District include: agricultural/shell mining/polo club to the south; vacant/agricultural to the west; a golf course community to the northwest; vacant/agricultural and residential to the north; and asphalt processing plant/agricultural to the east. All of the land to be included in the proposed District is included in either the University Lakes Development of Regional Impact (DRI) or the Cypress Bank DRI, except for approximately fifteen to twenty acres. This additional acreage has been included in the proposed District boundaries to bring that property which will be used as right of way for a future thoroughfare within the District. The existing land uses within the proposed District are consistent with the adopted Manatee County Comprehensive Plan. The future general distribution, location and extent of land uses proposed for the District are included in the Applications for Development Approval for the Cypress Banks DRI and the University Lakes DRI, and generally include residential, recreational, community-serving commercial and business/office uses. The Development Orders for these DRIs indicate that the development within the proposed District is consistent with the Manatee County Comprehensive Plan. The Petitioner currently intends for the District to construct or otherwise provide for a water management and control system; water supply systems; sewer; wastewater management, reclamation and reuse systems; bridges and culverts; district roads and street lighting. With Manatee County's consent, and pursuant to an Interlocal Agreement, the proposed District may also exercise other special powers, as authorized under Section 190.012(2), Florida Statutes, for the purpose of providing parks and facilities for indoor and outdoor recreational, cultural, and educational uses; fire prevention and control; school buildings and related structures; security; mosquito control; waste collection and disposal. Once completed, some of the facilities will be owned, operated, and/or maintained by the District. Some facilities may be dedicated to other governmental entities, which will operate and maintain them. The Petitioner intends for the District to maintain roadways until dedicated to and accepted by Manatee County or some other governmental entity, at which time the County or other governmental entity will assume maintenance responsibility. A non-potable water system to be utilized for irrigation purposes will be owned, operated and maintained by the District. The estimated cost in 1994 dollars for all identified capital improvements is $58,599,791, with construction scheduled to take place from 1995 through 2003. The Petitioner expects that the District will issue bonds to be used exclusively to provide the capital to construct and to acquire the planned infrastructure. The bonds will be repaid from the proceeds of non-ad valorem assessments on all specifically benefited properties. Funds for District infrastructure operations and maintenance may also be generated through non-ad valorem assessments. The sole purpose of this proceeding was to consider the establishment of the District as proposed by the Petitioner. Summary of Evidence Statutory Criteria for the Establishment of the District. Section 190.005 (1)(e), Florida Statutes, requires the Commission to consider six factors in making its determination to grant or deny the Petition to establish the District. The evidence presented on these factors is summarized in the following paragraphs. Whether all statements contained within the Petition have been found to be true and correct. Petitioner's Composite Exhibit 12 was identified for the record as a copy of the Petition and its attachments, as filed with the Commission. Rex Jensen reviewed the contents of the Petition and the attached Exhibits, and approved its filing. Rex Jensen found that no changes or corrections were necessary. Michael Kennedy reviewed Exhibits 1, 2, 5, 6 and Table 1 to Exhibit 7 to the Petition, and found that no changes or corrections were necessary. Betsy Benac reviewed Exhibit 8 to the Petition and determined that there were amendments to Exhibit 8. The amendments to Exhibit 8 were admitted into evidence as Petitioner's Composite Exhibit 8. Petitioner's Composite Exhibit 8, as amended, is true and correct. Henry Fishkind reviewed Exhibit 7, and found it to be true and correct. With the change set forth in the Finding of Fact 13, all statements in the Petition and its attached exhibits were shown to be true and correct. Whether the creation of the District is inconsistent with any applicable element or portion of the State Comprehensive Plan or of the effective local government comprehensive plan. Betsy Benac reviewed the establishment of the proposed District from a planning perspective for consistency with the State Comprehensive Plan, Chapter 187, Florida Statutes, and the Manatee County Comprehensive Plan, adopted pursuant to Chapter 163, Part II, Florida Statutes. In addition, Henry Fishkind reviewed the establishment of the District from an economic perspective for consistency with the State and local comprehensive plans. Gary Moyer reviewed the establishment of the District from a management perspective for consistency with the State Comprehensive Plan. State Comprehensive Plan From a planning perspective, Goals 10, 16, 21, and 26 of the State Comprehensive Plan, and the policies supporting these goals are particularly relevant to the establishment of the District. Goals 18 and 21 and the policies supporting those goals are relevant to the establishment of the District from an economic perspective. Goal 21 is also relevant to the establishment of the District from a management perspective. Policy 13 under Goal 10, "Natural Systems and Recreational Lands," encourages the use of public and private financial resources for the development of state and local recreational opportunities. The District may, with the consent of Manatee County, provide community recreational facilities. Goal 16, "Land Use," recognizes the importance of locating development in areas with the fiscal ability and service capacity to accommodate growth. The District will have the fiscal ability and service capacity to efficiently provide an excellent quality and range of facilities and services to development in Manatee County. Goal 18, "Public Facilities," directs the State to protect the investments in public facilities that already exist, and to plan for and finance new facilities to serve residents in a timely and efficient manner. The District will provide facilities and services in a timely and efficient manner to the area within Manatee County to be served by the District, allowing the County to focus its resources outside the District and thus, provide facilities and services to County residents in a timely and efficient manner. The "Governmental Efficiency" goal, Goal 21, requires that Florida governments provide the services required by the public in an economic and efficient manner. The District will have the fiscal capability to provide quality public services to those who benefit from and pay for those services. The size and configuration of the District would allow for the delivery of these facilities in an efficient, cost-effective manner. In addition, because it is a limited- purpose local government, the District can provide focused delivery, management, and maintenance of these services more efficiently than a general- purpose government. Goal 26, "Plan Implementation," encourages the integration of systematic planning into all levels of government, with emphasis on intergovernmental coordination. The development plan for the District contemplates the delivery of improvements in coordination with the general- purpose local governments in the area. In addition, Section 189.415, Florida Statutes, requires the District to file annual Public Facilities Reports with Manatee County, which the County may use and rely on in its Comprehensive Plan. From a planning perspective, all decisions of the District are made at board meetings which are publicly noticed and open to the public, maximizing input from landowners and residents of the District. The establishment of the proposed District is not inconsistent with any applicable goal or policy of the State Comprehensive Plan. Local Comprehensive Plan From a planning perspective, the future Land Use Element, the Public facilities Element and the Intergovernmental Coordination Element of the Manatee County Comprehensive Plan relate specifically to the establishment of the District. From an economic perspective, the Comprehensive Plan generally requires that economic growth not burden other citizens or other units of local government. The proposed District will provide that assurance. The proposed district will provide the focused efficient and effective delivery of specific services to a defined group of county citizens. The Future Land Use Element and supporting policies provide that future land uses should be encouraged to locate in areas suited for such use, as measured by the level of public facility availability and investment. The proposed District will insure the investment necessary to provide the public facilities to handle the approved development potential of the District. The Public Facilities Element and supporting policies require that new growth pay its share of needed capital facilities, including the full cost of installation of all wastewater collection systems and water distribution systems. The proposed CDD will provide the funding for the installation of a wastewater collection system and a potable water system. The Intergovernmental Coordination Element and supporting policies require efficiency in service delivery through a government environment which is conducive to the efficient and effective provision of services to county citizens. The proposed district will provide the focused efficient and effective delivery of specific services to a defined group of county citizens. Nothing in the Local Comprehensive Plan precludes the establishment of a community development district. The establishment of the District is not inconsistent with any of the applicable goals, objectives, and policies of the Manatee County Comprehensive Plan. Whether the area of land within the 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 Michael Kennedy, Betsy Benac, Gary Moyer, and Henry Fishkind. The lands that comprise the District consist of approximately 2,080 acres, located entirely within unincorporated Manatee County, and generally east of I-75 south of the Braden River, north of the Manatee/Sarasota County line. The land within the proposed District is all currently included within the approved University Lakes DRI and Cypress Banks DRI except for approximately 15 acres, which additional acreage was included in the proposed District boundaries so that property which will be used for right-of-way for a future thoroughfare is located within the District. The land within the proposed District is master planned to be a part of a functional, interrelated community with a balanced mix of uses to support the projected population. The area of land within the proposed District is bounded by major thoroughfare roads and the Braden River, and forms a compact and contiguous area creating a functionally interrelated community. From an engineering perspective, the property is sufficiently contiguous so that the proposed facilities and services can be designed, permitted, constructed, and maintained in a cost efficient, technically-sound manner. The proposed District is sufficiently contiguous to allow for the efficient, cost-effective, functional and integrated use of infrastructure. From a service delivery standpoint, the proposed District is designed to have sufficient population density and size to require all of the basic facilities and services of a community. The District will provide its residents and landowners the benefits of phasing the District's services over a time frame which takes advantage of the low cost of long-term capital, as well as providing economics of scale. From engineering, planning, economics, and management perspectives, the area of land to be included in the District is of sufficient size and is sufficiently compact and contiguous to be developed as a functional interrelated community. Whether the District is the best alternative available for delivering community development services and facilities to the area that will be served by the District. All five witnesses offered testimony on this criterion. It is presently intended that the District will fund the construction of water management and control systems; water supply; sewer; wastewater management reclamation and reuse systems; bridges and culverts; district roads; and street lighting. It may also, with the approval of the County, and pursuant to the Interlocal Agreement, construct parks and facilities for indoor and outdoor recreational, cultural, and educational uses; fire prevention and control; school buildings and related structures; security; mosquito control; waste collection and disposal. Once completed, certain of these improvements will be dedicated to other governmental entities to own, operate, and/or maintain. The proposed District will maintain roadways until dedicated and accepted by Manatee County or some other governmental entity, at which time that governmental entity will assume maintenance responsibility. It is expected that the District will issue bonds to finance these services and improvements. These bonds will be repaid from the proceeds of special assessments on benefited property within the District. Use of special assessments will ensure that those benefiting from District services help pay for those services. The following five alternatives for providing the necessary facilities and services to this were identified: (1) a municipal service taxing unit (MSTU)/municipal service benefit unit (MSBU) under Chapter 125, Florida Statutes; (2) a special assessment district under Chapter 125 or 189, Florida Statutes; (3) the County; (4) the Developer; or (5) a homeowners' association. In evaluating alternative methods for delivering community development facilities and services, factors to consider include whether an alternative is able to provide the best focused services and facilities; whether the alternative has an entity to manage the delivery of facilities and services; whether the alternative is a stable provider of facilities and services and can provide a long-term perspective; and whether the alternative can secure long- term financing to pay for all facilities and services at a sustained level of quality. Public Alternatives A MSTU/MSBU generally focuses on only one service or facility, which is not sufficient to serve the comprehensive development of a new community. It also requires County administration of the operation and maintenance of the infrastructure. Moreover, MSTU/MSBU debt is debt of the County, and MSTU/MSBU taxes count against the County's millage cap. The County would be relieved of direct administrative duties and costs related to the provision of the proposed facilities and services if the proposed District is established. In addition, District debt does not affect the County's borrowing capacity, and District taxes do not count against the County's millage cap. Although a dependent special district may provide more than one service or facility, it would still require County involvement, and dependent special district taxes would count against the County's millage cap. Debts incurred by a dependent special district are debts of the County, as are those of the MSTU/MSBU. In contrast, debts of a CDD are not debts of the County, and CDD taxes do not affect the County millage cap. The County, is not well equipped to address the special services and facility needs of individual communities. The responsibility for planning, financing, implementing and operations of the community would rest on the Board of County Commissioners. The County government is not set up to handle this kind of community-specific, long-range planning. If the County finds it difficult to deal with growth, it may divert attention and resources from existing communities to other areas where development is just starting. It is unlikely the County would be able to provide stable financing and management for facilities and services to the proposed District. Private Alternatives The District is also superior to the Developer or a Homeowners' Association in the provision of long-term financing of infrastructure. Neither the Developer nor a homeowner's association would have the power to levy and collect taxes. In contrast, the ability of the proposed District to obtain long-term, fixed rate financing is the least costly method of financing available in the current market. There would be no continuity of management functions. The developer would have responsibility for the planning, financing and implementing of the infrastructure and the homeowners association would manage and operate the infrastructure. This would limit the Developer's incentive to plan for contingencies during the operating and management phases. SMR Communities has experience in working with an existing CDD, and an officer of SMR Communities testified that the Lakewood Ranch CDD 1 has been successful in obtaining financing and constructing infrastructure for the planned residential community. SMR Communities expects that the proposed Lakewood Ranch CDD 2 will similarly benefit its landowners and residents in the years ahead, particularly as SMR Communities ceases to be the major landowner. None of the reasonable public or private alternatives provides the same cost- efficient, focused delivery and long-term maintenance and management of the proposed public facilities as would the District. The District is the best alternative available for delivering community services and facilities to the area. Whether the community development services and facilities of the District will be incompatible with the capacity and uses of existing local and regional community development services and facilities. Testimony on this criterion was provided by Michael Kennedy, Betsy Benac, Gary Moyer and Henry Fishkind. There is no planned duplication of facilities and services. There is a potable water main and a wastewater force main under construction by the County which will serve the proposed District. The District will supply the additional facilities and services necessary for development that are not provided by local general-purpose government or other governmental entities. The facilities to be constructed by the proposed District will be integrated with the existing facilities, and some of these facilities will be dedicated to Manatee County. Manatee County presently does not maintain a stormwater management system servicing the area within the proposed District. Given this area's location within a potable watershed, the long-term maintenance of the stormwater system is a critical component which will be provided by the District. The project infrastructure will be designed and constructed to State or County standards and must be consistent with the local comprehensive plan, building codes, and land development regulations. From engineering, planning, economic, and management perspectives, the services and facilities to be provided by the 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. Testimony on this criteria was provided by Michael Kennedy, Betsy Benac, Gary Moyer, and Henry Fishkind. From a planning perspective, the area to be served by the District requires basic infrastructure for development to occur. The District is of sufficient size and is sufficiently compact and contiguous to allow infrastructure to be provided and maintained in an efficient and cost effective manner. These services and infrastructure have been carefully planned to avoid duplication of existing local and regional facilities and services and to maximize efficiency of cost and effort to deliver such improvements. From an engineering perspective, having a separate unit of special- purpose government enhances the orderly provision of facilities and their long- term maintenance as well as the ability of the government to respond to the needs of the residents of the District. From a financial perspective, it is expected that the District will levy assessments and fees on the landowners and residents within the District who benefit from the improvements in order to fund the construction and maintenance of the improvements. The District will not be dependent on the County for funding, nor is the County liable for any obligations of the District. Therefore, it is more economically and functionally efficient to have a separate special-district government to manage the activities related to the improvements to the land within the District. From a management perspective, the proposed District requires basic infrastructure; is consistent with the State Comprehensive Plan; is sufficiently compact and contiguous and of sufficient size to allow for the provision and maintenance of infrastructure in an efficient, cost-effective manner; and is the best alternative for providing public facilities and services; therefore, it is amenable to separate, special-district government. From engineering, planning, economic, and management perspectives, the establishment of the District meets all of the statutory criteria in Section 190.005(l)(e), Florida Statutes. Public Comment on the Petition. Public comment was received at the public hearing. Mr. Arun Gade asked for clarification concerning the repayment of the bonds which the proposed District intends to issue. The bonds will be repaid by special assessments placed on the underlying, benefited property, by the District. The assessments will be paid by the owners of the property. Agency Comment on the Petition. The Secretary of the Commission distributed copies of the Petition to the Department of Community Affairs (DCA) and the Tampa Bay Regional Planning Council (TBRPC) and requested that these agencies review the Petition. By letter dated January 10, 1995, Secretary Linda Shelley of the DCA replied that the Department had completed its review of the Petition and had no objections to the proposed CDD. Secretary Shelley further stated that the development proposed for the area within the District had been reviewed and determined consistent with Chapters 163, Part II and 380.06, Florida Statutes The TBRPC responded to the Commission Secretary's request by letter dated January 6, 1995. The TBRPC stated that it had reviewed the Petition, and found it consistent with the approved Development Orders for the property located within the District. Other requirements imposed by statute or rule. Chapter 190, Florida Statutes, and Chapter 42-1, Florida Administrative Code, impose certain specific requirements set forth below regarding the Petition and other information to be submitted to the Commission. Elements of the Petition Section 190.005(1)(a)1., Florida Statutes, requires the Petition to contain a metes and bounds description of the external boundaries of the District. Petitioner's Composite Exhibit 12 contains such a description. This statutory section also requires that any property within the external boundaries of the District which is to be excluded from the District be specifically described. Petitioner's Composite Exhibit 12 includes this information. There is no real property located within the external boundaries of the proposed District which is to be excluded from the District. Section 190.005(1)(a)2., Florida Statutes, requires the Petition to contain the written consent to establishment of the District of the owners of 100 percent of the real property to be included in the District. Petitioner's Composite Exhibit 12 contains the written consent of Schroeder- Manatee Ranch, Inc., the owner of 100 percent of the real property to be included in the proposed District. Section 190.005(1)(a)3., Florida Statutes, requires the Petition to contain the names of the five persons, all residents of the State of Florida and citizens of the United States, who will serve on the initial Board of Supervisors. The five persons designated in the Petition, and their addresses are: Rex Jensen 7550 Lorraine Road Bradenton, Florida 34202 C. John Clarke 7550 Lorraine Road Bradenton, Florida 34202 Mary Fran Carroll 7550 Lorraine Road Bradenton, Florida 34202 Roger Hill 7550 Lorraine Road Bradenton, Florida 34202 Anthony Chiofalo 7550 Lorraine Road Bradenton, Florida 34202 All of the designees are residents of the State of Florida and citizens of the United States. Section 190.005(1)(a)4., Florida Statutes, requires that the Petition contain the proposed name for the District. The Petition provides that the proposed name of the District to be established is "Lakewood Ranch Community Development District 2". Section 190.005(1)(a)5., Florida Statutes, requires that the Petition show current major trunk water mains and sewer interceptors and outfalls, if in existence. Petitioner's Composite Exhibit 12 contains a map of the proposed District showing information concerning existing and proposed major trunk water mains, sewer interceptors, and outfalls. Section 190.005(1)(a)6., Florida Statutes, requires the Petition to set forth the proposed timetable for construction of services and facilities and the estimated cost for such construction. Petitioner's Composite Exhibit 12 contains this information in a table entitled "Lakewood Ranch Community Development District 2: Proposed Infrastructure Construction Cost Estimate and Timing". Section 190.005(1)(a)7., Florida Statutes, requires the Petition to designate the future general distribution, location and extent of public and private uses of land. This has been designated by the Future Land Use Plan Element of the Manatee County Comprehensive Plan. Petitioner's Composite Exhibit 12 provides this information. In addition, the future general distribution, location and extent of land uses for the proposed District were identified in the Applications for Development Approval for the Cypress Banks DRI and the University Lakes DRI. The Petition contains all information required by Section 190.005(i)(a)1.-7., Florida Statutes. Economic Impact Statement Section 190.005(1)(a)8., Florida Statutes, requires the Petition to include an economic impact statement (EIS) which meets the requirements of Section 120.54(2), Florida Statutes The EIS prepared by the Petitioner is attached to Petitioner's Composite Exhibit 12. The Petitioner's EIS meets the requirements of Sections 120.54(2)(c)1. and 120.54(2)(c)2., Florida Statutes, that an EIS include an estimate of the costs and benefits of the establishment of the District to all affected agencies and persons. It concludes that the economic benefits of establishing the District exceed the economic costs to all affected agencies and persons. Beyond administrative costs related to rule adoption and review of reports to be submitted by the District, the State and its citizens will incur no costs from establishment of the District. The District will require no subsidies from the State to fund District improvements. Benefits will include improved planning and coordination of development, as well as long-term professional management and maintenance of District facilities. Costs to Manatee County and its citizens for the establishment and operation of the District will be offset by the $15,000 filing fee and other fees paid by the Petitioner or the District. The County will not be responsible for the debt service on any bonds used to fund District improvements. Citizens of the County will receive the benefits of planned development, and the County will be relieved of the fiscal and administrative burden of providing the improvements provided by the District. The Petitioner will incur substantial costs to create the District and will pay substantial sums in non-ad valorem assessments as the largest landowner in the District in the initial stages of development. In addition, the Petitioner will provide most rights-of-way and easements. The Petitioner will benefit from the establishment of the District because of a more efficient cost of management of infrastructure, increased flexibility in meeting the demands of the marketplace, and tax exempt financing for infrastructure. Landowners within the District will pay District special assessments or fees for certain facilities; however, these facilities will be required for development regardless of the existence of the District. Benefits to these landowners/consumers will include a higher level of public services and amenities than might otherwise be available, completion of improvements provided by the District on a timely basis, and a share of control over decisions involving community development services and facilities. The EIS also meets the requirements of Sections 120.54(2)(c)3. and 120.54(2)(c)4., Florida Statutes, because the EIS includes an estimate of the impact of the proposed rule on competition, the open market for employment, and on small business, as defined in the Florida Small and Minority Business Assistance Act of 1985. The implementation of this rule is expected to have a positive impact on competition, and is expected to have only a nominal, positive effect on the open market for employment and small business. The EIS also meets the requirement of Section 120.54(2)(c)5., Florida Statutes, because the statement includes a comparison of the costs and benefits of the proposed rule to the probable costs and benefits of not adopting the rule. Where there are reasonable alternative methods for achieving the purpose of the rule which are not precluded by law, Sections 120.54(2)(c)6. and 120.54(2)(c)7., Florida Statutes, require that an EIS describe these alternatives and make a determination of whether any of the alternatives are less costly or less intrusive than the proposed method. Petitioner's EIS meets these requirements and concludes that none of the reasonable public or private alternatives provides the same cost-efficient, focused delivery, and long-term management and maintenance of the public facilities and services to be provided by the District. The District is the preferred alternative because it is a special-purpose unit of local government with a single purpose: the provision of infrastructure and services for planned, new communities. The EIS meets the requirement of Section 120.54(2)(c)8., Florida Statutes, because the EIS includes a detailed statement of the data and methodology used in preparing the analysis. The Petitioner's EIS meets all the requirements of Section 120.54(2), Florida Statutes. Other Requirements Petitioner has complied with Section 190.005(1)(b) Florida Statutes, which requires that the Petitioner submit a copy of the Petition and pay a filing fee to the local general-purpose government. Section 190.005(l)(d), Florida Statutes, requires the Petitioner to publish notice of the local public hearing in a newspaper of general paid circulation in Manatee County for four consecutive weeks immediately prior to the hearing. The notice was published in the Bradenton Herald for four consecutive Thursdays, beginning on January 26, 1995. Rule 42-1.010, Florida Administrative Code , requires the Commission to cause to be published a Notice of Receipt of Petition in the Florida Administrative Weekly. This notice was published on January 20, 1995. Rule 42-1.011(1)(a), Florida Administrative Code , requires the Petitioner to furnish proof of publication of the Notice of Local Hearing to the Secretary of the Commission. The Affidavit of Publication was transmitted to the Secretary of the Commission as required on February 21, 1995. Rule 42-1.011(1)(b), Florida Administrative Code, requires the Petitioner to mail a copy of the Notice of Local Hearing to all persons named in the proposed rule, the affected local government, and the Secretary of the Department of Community Affairs. Such individual notices were mailed as required by the rule.
Conclusions A local public hearing in this proceeding was held before William R. Cave, Hearing Officer, Division of Administrative Hearings, on February 23, 1995, at the City Council Chambers, City Hall, 500 15th Street West, Bradenton, Florida. The hearing was conducted pursuant to Section 190.005, Florida Statutes, for the purpose of taking testimony and public comment and receiving exhibits on the Petition of SMR Communities (Petitioner) to establish the Lakewood Ranch Community Development District 2 (District). This Report of Findings and Conclusions (report) is prepared and submitted to the Florida Land and Water Adjudicatory Commission (Commission) pursuant to Section 190.005, Florida Statutes, and Rule 42-1.013, Florida Administrative Code.
Recommendation Based upon the foregoing findings of fact and conclusions of law, the undersigned recommends 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, Administrative Code, establish the Lakewood Ranch Community Development District 2 as requested by the Petitioner by formal adoption of the proposed rule attached to this Report of Findings and Conclusions as Exhibit 6. Respectfully submitted this 15th day of March, 1995, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of March, 1995. COPIES FURNISHED: Robert Bradley, Secretary Florida Land and Water Adjudicatory Commission The Capitol Suite 1601 Tallahassee, Florida 32399-0001 Rhea F. Law, Esquire Erin R. McCormick, Esquire Fowler, White, Gillen, Boggs, Villareal and Banker, P.A. Post Office Box 1438 Tampa, Florida 33601-1438 Rex Jensen Vice President - Real Estate Schroeder-Manatee Ranch, Inc. 7550 Lorraine Road Bradenton, Florida 34202 Gregory Smith, Esquire Office of the Governor The Capitol, Suite 209 Tallahassee, Florida 32399-0001 Dan Stengle, Esquire Al Bragg, Esquire Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Mark P. Barnebey, Esquire Senior Assistant County Attorney Manatee County Attorney's Office P. O. Box 1000 Bradenton, Florida 34206
The Issue The issue before the Florida Land and Water Adjudicatory Commission (FLWAC) in this proceeding is whether to grant the Petition to Establish the Arborwood Community Development District (Petition), dated November 17, 2003. The local public hearing was conducted for the purpose of gathering information in anticipation of rulemaking by FLWAC.
