The Issue The issues here concern the decision by the Respondent to reject the bid of the Petitioner and others associated with the solicitation for lease space, Invitation To Bid (ITB) No. 1991:104, in favor of use of property held by the Respondent.
Findings Of Fact As early as March 1991, Respondent began to consider the possibility of leasing space off its campus to accommodate its postal services operation. This was necessitated by a lack of acceptable space on campus. The need to acquire acceptable space led the Respondent to enter into a lease agreement with the Petitioner for the period June 26, 1991 through October 20, 1991 for property located at 148 Four Points Way in Tallahassee, Florida. The expectation by the Respondent was that this emergency lease would be followed by a more permanent lease arrangement through a competitive bidding process. To this end Respondent set about preparing its invitation to bid through ITB No. 1991:104. In doing so Respondent followed all applicable procedures. Petitioner, among others, responded to the invitation and following evaluation of those responses was found to have offered the apparent best bid. The results of the evaluation were posted through a tabulation sheet. The posting took place on September 10, 1991. The preliminary decision by the Respondent was met with the notice of protest by another bidder, Grace H. Dansby. That protest was received on September 12, 1991. Before Respondent received the protest by Dansby on September 10, 1991, Lorilyne Gerato, who had coordinated the bid activities for the Respondent, had notified James Chason, President for Petitioner, of the results of the bid tabulation. Other bidders were also extended this courtesy of notifying them of the outcome of the tabulation. She told Chason that Petitioner was the low bidder, and Chason gained the impression that his company had gotten the bid. Gerato told Chason in this September 10, 1991 conversation that it would be necessary to wait for 72 hours from the time of the posting of bid results to see if a protest was filed and that a letter would be sent to Chason concerning the outcome of the assessment process and that the letter would not be dispatched before the 72 hour protest had expired. Having considered the record, it was not reasonable for Chason to believe that the contact by Gerato constituted a commitment by the Respondent to enter into a lease with Petitioner to the exclusion of rights and opportunities by Dansby to protest the preliminary decision finding Petitioner the best bidder and the Respondent's opportunity to consider its course of action with the advent of that protest. Dansby, in the person of counsel, made complaints about the bidding process to Dr. James Pitts, a vice president with the Respondent in charge of development. Those complaints were made known to John Carnaghi, Vice President for Finance and Administration, for the Respondent, who had overall responsibility for this project. Although Ms. Dansby in addition to being a bidder on this project is a trustee of the Florida State University Foundation, which is associated with the work Dr. Pitts performs for the Respondent, the affiliation between Dansby and the Respondent did not influence Respondent in its intended disposition of this case as a means to benefit the bidder Dansby. Mr. Carnaghi, who was responsible for deciding the course of action, given the Dansby protest, was concerned that the protest would not be resolved in a time sufficient to allow entry into the lease space that Petitioner was offering under the terms of the subject ITB. Knowing that the emergency lease that had been entered into with Petitioner, as described, could not be extended beyond its October 20, 1991 expiration date, he had great concern about where to house the postal services function once the emergency lease expired. He was also mindful that the emergency lease with Petitioner had been entered into after two failed attempts in locating other facilities for the postal services in that the space that he tried to locate in the other two facilities proved to be unavailable. Even before the Dansby protest had been filed, there was mention that it might be forthcoming, and there was the additional concern that Petitioner might protest if its bid was rejected. There was also the concern that the cost for the initial year in the lease period contemplated by the Petitioner was more than Respondent had expected to pay, notwithstanding the fact that the Petitioner's response to the ITB was responsive to the terms set forth in the ITB. Although the Respondent had not conducted a pre-bid estimate concerning lease expenses for the first year with exactitude, the estimate was sufficiently precise to demonstrate that the lease costs for the initial year called for by the Petitioner's response to the ITB was high, being in excess of $60,000 in a circumstance in which the estimate by the Respondent was in the $30,000 range. In the face of these events, it occurred to Carnaghi that he had property known as the Maples property which had come into ownership by the Respondent that might meet the needs for space for the postal services. Carnaghi had first seen this property and its building around September 5 or 6, 1991. The renovation cost to prepare this building to receive the postal services function approximated the initial expense for the first year lease with Petitioner. It was believed that the space could be prepared in time to move the equipment before the expiration of the emergency lease. In fact, the building at the Maples property was sufficiently prepared to allow the function to move into that location on October 17, 1991. In making the decision to reject bids in favor of available space owned by the Respondent, Respondent was aware that the postal operations were not generating revenue in the manner expected, an item of critical concern given that the postal services operation must earn its keep. Thus, the decision was reached to reject all bids in favor of use of space available that belonged to the Respondent. Having made the decision to reject the bids in favor of use of its space, the bidders were notified of this decision on September 16, 1991. Mrs. Dansby did not continue to pursue her protest. The Petitioner did avail itself of the opportunity to protest leading to the hearing and this recommended order. In addition to the individual notices provided to the respective bidders dated September 16, 1991, further posting was given indicating that the bidders had until September 24, 1991 to contest the decision to reject all bids. Gerato had called Chason on September 13, 1991 to tell him of the Dansby protest and the concern that Respondent did not have time to wait for that protest to be resolved and was going to reject the bids. Chason replied that he felt that the Petitioner was in a position to conclude the necessary improvements in the building called for by the specifications set out in the ITB, even if it were necessary to wait out the 10 day protest period, the opportunity given for filing a formal written protest subsequent to the notice of intent to protest dated September 12, 1991. Subsequently Gerato spoke to Chason on the following Tuesday, and Chason tried to convince Gerato that he did not believe that Dansby would follow through with the protest in that Chason did not think there were adequate grounds for Dansby to protest. Chason continued to emphasize that Petitioner was in the position to make the necessary improvements in the time frame specified and was prepared to do so. Gerato made Chason aware of the fact that the Respondent having had a chance to look further at the situation discovered that there was property available to the University unrelated to the responses to the ITB and that the Respondent was going to reject bids in response to the ITB in favor of the property available to the University. Chason had also offered to extend the time for using the Petitioner's property for 30 days beyond the termination of the emergency lease conditioned upon use of that property in the 30 days leading to a lease under the subject ITB as opposed to the use of the property to provide the Petitioner with an opportunity to prepare space other than that offered by the Petitioner. This offer was placed in writing by correspondence of September 20, 1991. Respondent replied to the Petitioner on September 24, 1991 rejecting that opportunity in favor of the Maples property as being the most cost effective alternative. The remarks in the correspondence by Al Gilligan, Director of Business Financial/Auxiliary Services, to the effect that at a future point if operational revenue projections prove accurate that the Respondent might seek considerable increase in space and would consider the building which Petitioner offered in the present bidding process through a future bidding process is not seen as an attempt to favor Ms. Dansby in some future competitive bidding conducted by the Respondent as Petitioner has contended. The fact that the decision to use available space belonging to the Respondent was a considerable reduction from what had been sought through the ITB is not seen as an impropriety by the Respondent in rejecting Petitioner's space in favor of its own.
Recommendation Upon consideration of the findings of fact and conclusions of law, it is recommended that a Final Order be entered which dismisses the Petitioner's bid protest and confirms the decision to reject all bids in favor of space owned by the University. DONE and ENTERED this 2nd day of January, 1992, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of January, 1992. APPENDIX The following discussion is given concerning the proposed findings of fact by the parties. Petitioner's facts: Paragraph 1 is not necessary to the resolution of the dispute. Paragraph 2 is subordinate to facts found. Paragraphs 3 through 5 are not necessary to the resolution of the dispute. The First sentence in paragraph 6 is subordinate to facts found. The latter sentence is not necessary to the resolution of the dispute. Paragraph 7 is subordinate to facts found. Paragraph 8 is not necessary to the resolution of the dispute. Paragraphs 9 and 10 are subordinate to facts found. Paragraphs 11 through 17 are not necessary to the resolution of the dispute. Paragraph 18 is subordinate to facts found, except in its suggestion that Petitioner had "gotten the bid," taken to mean that the rights of Petitioner and Respondent concerning any possible contract had been basically determined subject to finalization through signing of a lease. Paragraph 19 is not necessary to the resolution of the dispute. Paragraphs 20 through 24 are subordinate to facts found. Paragraph 25 is acknowledged; however, the arrangements to make improvements did not involve the kind of expenditures that would occasion a claim of estoppel. Paragraph 26 constitutes argument. Paragraph 27--See discussion of paragraph 25. Paragraph 28 constitutes a discussion of testimony in its first sentence. The second sentence is contrary to facts found. Paragraph 29 is subordinate to facts found. Paragraph 30 is rejected as it attempts to describe a contract between Petitioner and Respondent. Paragraph 31 is not necessary to the resolution of the dispute nor are paragraphs 32 through 35. Paragraph 36 is subordinate to facts found. Paragraph 37 is not necessary to the resolution of the dispute. Paragraph 38 is subordinate to facts found in the first sentence. The remaining sentence is argument. Paragraph 39 is not necessary to the resolution of the dispute. Paragraph 40 through 42 are subordinate to the facts found. Paragraphs 43 through 45 are not necessary to the resolution of the dispute. Paragraph 46 is subordinate to facts found. Paragraphs 47 through 56 are not necessary to the resolution of the dispute. Paragraphs 57 through 64 are subordinate to facts found. Paragraph 65 is not necessary to the resolution of the dispute. Paragraphs 66 through 68 are subordinate to facts found. Paragraph 69 is rejected to the extent that it attempts to show that Mr. Carnaghi acted improperly in rejecting the bids. Paragraph 70 is not necessary to the resolution of the dispute. Paragraphs 71 and 72 are subordinate to the facts found. Paragraph 73 is the correct statement, but does not preclude the University from electing to use available space it had. Paragraph 74 is subordinate to facts found. Paragraphs 75 and 76 are not necessary to the resolution of the dispute. Paragraph 77 in its first two sentences is subordinate to facts found, and the latter sentence is argument. Paragraphs 78 through 80 are subordinate to facts found. Respondent's Facts: Paragraphs 1 through 4 are subordinate to facts found. Paragraph 5 is not necessary to the resolution of the dispute. Paragraphs 6 and 7 are subordinate to facts found. Paragraphs 8 and 9 are not necessary to the resolution of the dispute. Paragraphs 10 through 18 with the exception of the last sentence in 18 are subordinate to facts found. That sentence constitutes a conclusion of law. Paragraphs 19 and 20 are subordinate to facts found. Paragraphs 21 and 22 constitute recitation of testimony and argument as does paragraph 23. COPIES FURNISHED: Edgar Lee Elzie, Jr., Esquire McFarlane, Ferguson, Allison & Kelly 210 South Monroe Street Post Office Box 82 Tallahassee, FL 32302 Gerald B. Jaski, Esquire Sonja P. Mathews, Esquire William D. Moore, Esquire Florida State University 311 Hecht House Tallahassee, FL 32306-4038 Dale Lick President Florida State University 211 Westcott Building Tallahassee, FL 32306
The Issue The issues to be determined in this consolidated proceeding are (1) whether the Petitioners have demonstrated standing under section 163.3184, Florida Statutes (2018), and (2) whether the Okeechobee Business District Comprehensive Plan Amendment (OBD Amendment) adopted on August 13, 2018, by the Respondent by Ordinance No. 4783-18 (Ordinance) is "in compliance" under section 163.3184(1)(b).
Findings Of Fact The Parties and Standing Lakeview is a Delaware limited liability company, registered with the State of Florida. Lakeview owns Esperanté, a 20-story office tower at 222 Lakeview Avenue within the boundaries of the OBD. Lakeview submitted oral and written objections to the City during the process leading to adoption of the OBD Amendment. Lakeview's concerns included impact to views of the Intracoastal Waterway by potential development of a 25-story office tower to the east of Esperanté at the location referred to as the "church site," as well as increased traffic congestion on Lakeview Avenue. Lakeview is an affected person under section 163.3184(1)(a). The Town is a Florida municipal corporation and a home rule charter municipality. The Town owns property within the City, including its public works facility in close proximity to the OBD. The Town submitted oral and written comments, recommendations, and objections to the City during the adoption process for the OBD Amendment. The Town is an adjoining local government to the City. The Town was concerned that the OBD Amendment would produce substantial impacts on the increased need for publicly funded infrastructure by increasing the cost of traffic signalization on Okeechobee Boulevard and Lakeview Avenue in the OBD. The Town is an affected person under section 163.3184(1)(a). The County is a political subdivision of the State of Florida and a home rule charter county. The County owns property within the jurisdiction of the City, including its convention center and parking garage, which are located on Okeechobee Boulevard in close proximity to the OBD. The County was concerned that the OBD Amendment would produce substantial impacts on the increased need for publicly funded infrastructure in the form of increased cost for traffic signalization and other active traffic management measures on Okeechobee Boulevard and on increased cost of providing bus services. The County submitted oral and written comments, recommendations, and objections to the City during the adoption process for the OBD Amendment. The County is an affected person under section 163.3184(1)(a). The City is a Florida municipal corporation located in the County and is responsible for adopting a comprehensive plan and plan amendments. The City adopted the OBD Amendment under the state expedited review process in section 163.3184(3). The City also owns a parcel within the OBD referred to throughout this proceeding as the "tent site." Background The OBD includes all the properties located between Okeechobee Boulevard, Lakeview Avenue, Rosemary Avenue, and Flagler Drive in the City's downtown. It is a five-block area with the church site as its easternmost parcel. The OBD is a new district within the area defined in the Downtown Master Plan (DMP) Element of the City's Comprehensive Plan (City Comp Plan). The DMP Element is an optional element of the City Comp Plan that was adopted in 1995. The DMP's vision includes promoting a place of sustainable and efficient transportation systems that promote greater connectivity for pedestrians, cyclist, and transit riders. The OBD Amendment is a small component of the City's large and comprehensive strategy to encourage mode shift within the DMP area. The DMP currently sets forth 13 districts that are described in Policy 1.1.1 and whose boundaries are depicted on the Downtown District Map in the City Comp Plan. DMP Policy 3.1.1 directs the City to maintain the DMP Zoning Atlas showing the districts from DMP Policy 1.1.1, the planning areas and the subdistricts. The OBD is also located within the Downtown Transportation Concurrency Exception Area (TCEA) established in Objective 2.3.5 of the Transportation Element in the City Comp Plan. The Downtown TCEA is also adopted in the County's Comprehensive Plan (County Comp Plan), and the TCEA boundaries are coterminous with the DMP area. The City entered into an agreement with the County and FDOT in 1998 regarding the TCEA. Adoption of the TCEA meant that the City, the County, and FDOT acknowledged that in order for desired development and redevelopment to occur in the City's downtown area, it would be difficult for certain roadways to continue to meet the adopted level of service standards. Thus, the City was exempted from meeting transportation concurrency requirements and traffic performance standards in the TCEA. A Florida Standard Urban Transportation Modeling System (FSUTMS) traffic analysis of the area that was done prior to adoption of the TCEA ultimately established the required residential and nonresidential development ratios described in Transportation Element Policy 2.3.5(h). The development ratios required the City to have both residential and nonresidential space in the downtown area. The City achieved the projection for residential units set forth in Transportation Element Policy 2.3.5(g), but has approximately five million square feet more of nonresidential space available to reach the stated projection for nonresidential space. The OBD Amendment On April 30, 2018, Gabe Klein, a consultant for the City, presented the Downtown Mobility Plan to the mayor and city commission. The workshop was open to the public and televised on the City's website. At this workshop, the Mayor initiated the process for pursuing the OBD Amendment. The City then timely sent its executive summary of the proposed OBD Amendment to the Interlocal Plan Amendment Review Committee (IPARC) Clearinghouse on May 3, 2018. On May 7, 2018, the Clearinghouse provided notice (IPARC Notice) of the OBD Amendment to the Town and the County under the terms of the Interlocal Agreement that established the IPARC. On May 21, 2018, by Resolution No. 134-18, the City Commission adopted the Downtown Mobility Plan, along with the Okeechobee Corridor Study, Downtown Parking and Transportation Demand Management Study, and the Citywide Bicycle Master Plan. In addition to the IPARC Notice, the City provided notice to both the County and Lakeview by mail and published required notices in the newspaper. Counsel for Lakeview presented oral comments regarding the OBD Amendment at the City's Planning Board meeting on May 15, 2018; at the Downtown Action Committee (DAC) meeting on June 13, 2018; at the transmittal hearing on June 18, 2018; and at the adoption hearing on August 13, 2018. County representatives made oral comments at the transmittal hearing on June 18, 2018, and the adoption hearing on August 13, 2018. A Town representative made oral comments at the adoption hearing on August 13, 2018. The Ordinance reflected the City's continuing policy of seeking to attract high-intensity office uses to consolidate the area as an economic center of downtown, with innovative high-rise buildings and an active pedestrian environment. The Ordinance further allowed for the creation of incentives to permit building heights to increase from five stories to 25 stories in the OBD 5 subdistrict without increasing the permitted floor area ratio (FAR) of 2.75. The Ordinance amended the City Comp Plan's DMP Element to identify the location, development capacity, and height allowed within the OBD. DMP Policy 1.1.1 was amended to create the OBD. DMP Policy 3.1.3 was amended to show maximum development capacity, subdistrict boundaries and incentive areas for the OBD. The text added to DMP Policy 1.1.1 stated: N. Okeechobee Business District: The Okeechobee corridor is the traditional business district of downtown, around which office buildings have historically located. The focus of the Okeechobee business district should be towards attracting high intensity office uses to consolidate the area as an economic center of downtown, with innovative high-rise buildings and an active pedestrian environment. The district shall function as a connection between the north and south portions of the City, with enhanced pedestrian crossings and a large percentage of public open spaces. Intensity and Density The OBD Amendment did not increase development intensity or density. In fact, the OBD Amendment reduced the allowable development within the Okeechobee Corridor. The evidence established that the FAR of 2.75 on the church site remained the same with the OBD Amendment. Ms. Aponte is in charge of overseeing the development and implementation of the DMP. She testified that prior to adoption of the OBD Amendment, the FAR on the church site was 2.75 and that the church site property could have been developed to accommodate approximately 300,000 square feet of usable office space and provide parking on site. With the same FAR of 2.75 after adoption of the OBD Amendment, the church site's development capacity remained the same. Ms. Aponte also concluded that from a planning perspective, since the development capacity at the church site remained the same before and after the OBD Amendment, and the use did not change, there would not be additional traffic impacts. Mr. Greene explained that the OBD Amendment would actually reduce the development capacity on the tent site and that all other blocks in the OBD would retain the same development capacity as before the OBD Amendment. Since there was a reduction in the actual development capacity within the OBD, there was not an increase in intensity. Mr. Greene and/or his staff explained the reduction in development capacity in the OBD at all four public hearings and in many telephone conversations with staff from the County and the Town. The tent site is located within the City Place Development of Regional Impact (DRI) that holds certain development rights. Sites located within the DRI may use the DRI's development rights on a "first come, first serve" basis until they are exhausted. Reducing capacity on the tent site would allow another site within the DRI to use those development rights. This would shift development away from the Okeechobee Corridor in the OBD to another site within the DRI. The City proved that the OBD Amendment did not increase development intensity or density. The City credibly established that the OBD Amendment reduced the allowable development within the OBD. Petitioners' Objections The Petitioners jointly presented their cases during the hearing. They argued that the OBD Amendment was not "in compliance" because it created internal inconsistencies within the City Comp Plan, it was not supported by relevant and appropriate data and analysis, it was not properly coordinated with the neighboring local governments, it was not coordinated with the comprehensive plans of the Town and the County, and it was a de facto future land use plan amendment. Each argument is generally addressed below. However, the major underlying premise of the Petitioners' challenge was that the OBD Amendment would allow more intense development and that the City had not evaluated potential impacts to traffic and parking. As found above, the City proved that the OBD Amendment did not increase development intensity or density. Thus, the City did not need to evaluate the traffic impacts of the OBD. In addition, the City was exempted from meeting transportation concurrency requirements and traffic performance standards in the TCEA. Internal Consistency The Town and County identified elements in the City Comp Plan in order to argue internal inconsistency. Those were the Coastal Management Element, Intergovernmental Coordination Element, and Transportation Element. The Town and County also claimed the OBD Amendment was inconsistent with the Strategic Regional Policy Plan. Lakeview claimed the OBD Amendment was inconsistent with the entire City Comp Plan generally, and specifically inconsistent with the vision of the DMP Element, DMP Policies 3.1.3, 1.1.1.H, and 1.1.1.M; Future Land Use Policy 1.1.7; Transportation Element Policy 2.3.1(a), Objective 2.3.4, Policies 2.3.5(a) and 2.3.5(h); and Intergovernmental Coordination Element Objectives 1.1, 1.2, 1.3, and 1.4, Policies 1.3.1, 1.3.3, 1.3.4, and 1.5.3. The Petitioners argued that "high-rise Class A" buildings must be built in the Quadrille Business District (QBD) described in DMP Policy 1.1.1.H. However, the DMP Element does not limit tall buildings to the QBD. For example, a maximum height of 30 stories is allowed in the Quadrille Garden District, 25 stories in the QBD, and 15 stories in the Transit Oriented District and Flagler Waterfront District. During the hearing, Mr. Greene narrated drone footage that showed high-rise buildings are located throughout the downtown area, including in and near the OBD in the Okeechobee Corridor. Two residential towers that are 32 stories in height are also located along the waterfront in the Flagler Waterfront District. The evidence supported the description in the OBD that "[t]he Okeechobee corridor is the traditional business district of downtown, around which office buildings have historically located." The evidence also established that the tallest buildings in the downtown are not located in the QBD. The City Comp Plan does not prohibit high-rise buildings in districts other than the QBD. Lakeview's witness, Ms. Ward, opined that creation of the OBD conflicted with the intention of the Flagler Waterfront District to preserve waterfront views and its function as a transition from more intense development in the urban core of downtown. The evidence showed that these intentions can be realized with creation of the OBD. The OBD's implementing regulations adopted at the same time as the OBD Amendment as changes to the DMP Urban Regulations required that any development be set back 400 feet from the Intracoastal Waterway and that open space be increased. This would maintain an open space promenade along Flagler Drive. The County argued that the OBD Amendment conflicted with Policy 1.2-m of its Transportation Element, which provides in part: "Based on the results of the traffic monitoring report, the City will pursue strategies including, but not limited to . . . develop a centrally-managed system of strategically located parking facilities." The same language is found in the Transportation Element of the City Comp Plan in Policy 2.3.5(a). Contrary to the County's argument, the OBD Amendment in no way prohibited or directed the location of centrally-managed parking garages. The OBD Amendment complemented the many strategies referenced in Policy 1.2-m and Policy 2.3.5(a) by promoting public transit services, encouraging transportation mode options, and implementing employer-based Transportation Demand Management (TDM) activities. The evidence established that parking requirements for any developments within the DMP, including the new OBD, complied with the provisions of DMP Element Objective 4.3 and the implementing DMP Urban Regulations. DMP Objective 4.3 states that "[t]he City shall develop strategies to manage the downtown parking supply and demand." Lakeview argued that Exhibit 3 to the Ordinance showed two Okeechobee Business subdistricts but did not list the other subdistricts that were created under the OBD, specifically OBD-12CP. Mr. Hansen explained that OBD-12CP is contained within the City Place DRI, which was amended by the adoption of a separate Ordinance No. 4782-18 and is not subject to review in a comprehensive plan challenge. At the hearing, the County and Town withdrew their claim relating to conflict with the Coastal Management Element. In an abundance of caution, the City presented evidence and established that the OBD is not in a coastal high hazard area. The Treasure Coast Regional Planning Council (Treasure Coast) is the regional planning council that reviewed the City's OBD Amendment. Treasure Coast's review and comments were limited to any adverse effects on regional resources or facilities identified in the Strategic Regional Policy Plan, and any extra- jurisdictional impacts that would be inconsistent with the comprehensive plan of any affected local government within the region. Based on the City's staff report for the OBD Amendment, Treasure Coast found that the maximum development potential of property, as expressed by FAR, did not increase as a result of the creation of the OBD. Treasure Coast found no adverse effects on regional resources or facilities and no extra-jurisdictional impacts resulting from creation of the OBD. The Petitioners did not present any evidence that would establish the OBD Amendment was not consistent with the requirements of the Strategic Regional Policy Plan. The Petitioners did not prove beyond fair debate that the OBD Amendment conflicted with the policies, goals, and objectives of the City Comp Plan or the County Comp Plan. Data and Analysis The City Commission adopted the Downtown Mobility Plan (Mobility Plan), along with the Okeechobee Corridor Study, Downtown Parking and Transportation Demand Management Study and the Citywide Bicycle Master Plan. The various studies that make up the Mobility Plan included data relating to mode shift, walkability, mobility, circulation on Okeechobee Boulevard, economic growth in the downtown, and TDM initiatives. The Mobility Plan created a vision of desired outcomes, goals, a mode hierarchy, a mode-shift goal, and a series of proposed projects and strategies to improve mobility, not only along the Okeechobee Corridor, but also the entire downtown. The plan estimated needs in 2040 based on jobs and population rates and provided specific proposed projects that could be implemented to manage future growth in the entire downtown. The study specifically included streets within the OBD and was, therefore, relevant data and analysis that supported the OBD Amendment. The Okeechobee Corridor Study looked at the needs, capacity, and characteristics along Okeechobee Boulevard, all of which are related to the OBD. The Downtown Parking and Transportation Demand Management Study provided an audit of the parking in the downtown area. The study supported adoption of the OBD Amendment since the OBD is an area included within the overall parking demand study. The Citywide Bicycle Master Plan included an analysis of bike facilities and bike lanes along and accessing the OBD. It discussed the existing transit network in the Okeechobee corridor, obstacles, and the need for modification to some of the street systems to achieve the Bicycle Master Plan's long-term goals of producing a connected series of trails. The City also relied upon traffic count data for Okeechobee Boulevard produced by the County. In addition to the County's traffic count data, the City relied on an FDOT analysis dated June 7, 2018, which showed existing conditions before and after the Brightline train service began and which revealed that there were no intersections on the relevant portions of Okeechobee Boulevard that were failing. The City Commission also reviewed data concerning trolley ridership and skybike ridership. There were numerous other data and analyses that existed at the time of adoption of the OBD Amendment that supported the City's action in adopting the amendment including: The Economic Impact Analysis of the OBD by Fishkind & Associates, which found that the City's Class-A office market is underserved, that the City's market has a vacancy rate far below average for business districts in Florida or the United States, that a new Class-A office building in the OBD is likely to have a beneficial impact on the City's office market, that the OBD could create 1,000 new high-wage jobs and create additional demand for residential housing, that a new Class-A office building would likely generate $1 million in tax revenue for the City, and that approval of the OBD would not have a detrimental impact on surrounding Class-A offices. The West Palm Beach Downtown Walkability Analysis specifically stated that certain streets, most notably the state- owned Okeechobee Boulevard and Quadrille Avenue, are considered "downright hazardous" to pedestrians. Dr. Depew explained that the study was relevant to the OBD Amendment because it explained how the City could get people out of their personal automobiles and move them into an urban environment in different modes of transportation, which is consistent with the TCEA's aim to have more people living and working downtown. The City has adopted the walkability study in the Transportation Element Policy 2.4.4(a) of the City Comp Plan. The FDOT District 4 Road Safety Audit Report was intended to look at the performance of existing or future road intersections, including the intersection of Okeechobee Boulevard and Florida Avenue and Rosemary Avenue, to determine how the area itself could be made safer for pedestrians, provide alternative means of transportation, and reduce conflicts between pedestrians, bicycles, and vehicles in the area. The Transit Choices Report + Sketch Alternatives contained data related to population and employment trends in the downtown area and alternatives for transit in the downtown area. It provided options, alternatives, and recommendations that included a portion of the OBD area. The report contained a map related to the mobility plan and shifting transit services to a new downtown site as a potential for future consideration within the OBD. It also referenced the Okeechobee Boulevard Corridor Study. The West Palm Beach Economic Development Study by Avalanche evaluated economic and demographic data, assessed the City's business climate, analyzed visitor trends, analyzed real estate trends, and reviewed economic development assets and programs in the City. With regard to infrastructure and real estate, the study found that Class A office space was in high demand, that office vacancy rates have been falling since 2011, and that the potential OBD would allow the City to increase in-demand Class A office product in a prime downtown location. The appraiser report by Aucamp, Dellenback and Whitney concluded that the proposed OBD would not have an adverse effect on property values for the downtown-at-large, no adverse effect on property values for nearby residential buildings, and no adverse effect on property values for nearby office buildings. The Palm Beach Metropolitan Planning Organization (MPO) 2040 Long Range Transportation Plan included growth forecasts regarding population and employment (population growth at 35 percent and employment growth at 56 percent by 2040), which Dr. Depew looked at to confirm that the materials in other reports he reviewed were accurate. The City did not perform a site-specific traffic impact study because it was exempt under the TCEA, and there was a reduction of development intensity within the Okeechobee Corridor. Dr. Depew opined that the proposed OBD Amendment did not require a traffic impact study. The Petitioners argued that the various surveys, studies, and reports did not expressly refer to the OBD and the OBD Amendment. However, section 163.3177(1)(f) does not require creation of a plan amendment prior to conducting studies and gathering data to support it. In fact, a plan amendment is usually the reaction to surveys, studies, community goals and vision, and other data. The data and analyses relied on by the City were prepared by recognized professionals using professionally accepted methodologies and sources. The City's reaction to the data and analyses was appropriate. The Petitioners did not prove beyond fair debate that the OBD Amendment was not supported by relevant data and analysis or that the City did not react appropriately to the data and analysis. Intergovernmental Coordination The County, Town, and City entered into the Comprehensive Plan Amendment Coordinated Review Interlocal Agreement, dated October 1, 1993 (Interlocal Agreement), to comply with the intergovernmental coordination requirements of chapter 163. The Interlocal Agreement established a countywide coordinated review process designed to provide cooperation between affected local governments and opportunities to resolve potential disputes within the plan amendment process with the least amount of infringement upon existing processes. The Interlocal Agreement established the IPARC Clearinghouse. Local governments are obligated to provide the Clearinghouse with an executive summary and hearing information. The City timely sent its executive summary to the Clearinghouse, and the Clearinghouse provided notice of the OBD Amendment to the Town and the County. The Interlocal Agreement provided that a written notice of intent to object may be filed by a participating local government and must be filed no later than 15 days before the transmittal hearing. Once filed, a meeting is required between the jurisdictions, a fact-finding panel is established, an opinion letter is issued, and conflict resolution is available as provided under Article X. The Town signed the Interlocal Agreement. It also adopted Policy 1.1.3 in the Intergovernmental Coordination Element (ICE) of its Comprehensive Plan requiring it to cooperate with all other local governments in a voluntary dispute resolution process for the purpose of facilitating intergovernmental coordination. The County also signed the Interlocal Agreement. In the County's ICE, it too recognized the intergovernmental review process established under the Interlocal Agreement. The County and Town did not present any evidence that they filed notices of intent to object to the OBD Amendment 15 days prior to the transmittal hearing as required by the Interlocal Agreement. In addition to the IPARC Notice, the City provided notice to both the County and Lakeview by mail and published required notices in the newspaper. Mr. Greene and Ms. Aponte spoke with John Lingren from the Town about the OBD Amendment. During that conversation, the purpose of the amendment was clarified, development capacity was discussed, and it was explained that the amendment did not increase development capacity on the corridors and did not change the uses. Ms. Aponte and Mr. Hansen also spoke with Mr. Mohyuddin, a principal planner from the County, and clarified that the City was not modifying development capacity and that there was no effect on traffic in the corridor. Mr. Hansen also spoke to Jorge Perez, a senior urban designer with the County, regarding the plan amendments. The FDOT sent a findings letter to the City after reviewing the OBD Amendment. Following receipt of the letter, Mr. Greene communicated with Larry Hymowitz, the FDOT transportation planner who prepared the letter. After reviewing information provided by Mr. Greene, Mr. Hymowitz testified that he no longer believed that there were adverse impacts to transportation facilities and no longer had concerns about the data and analysis used to support the OBD Amendment. Mr. Hymowitz stated that he considered this type of communication to be intergovernmental coordination. The City also received letters from the Petitioners and heard public comment made by the Petitioners' representatives at the public hearings before making its final decision to adopt the OBD Amendment. The Petitioners did not prove beyond fair debate that the City did not comply with the intergovernmental coordination requirements of the Comp Plans of the County, Town, or City, or of chapter 163. De Facto Future Land Use Plan Amendment The Petitioners argued that the OBD Amendment conflicts with the Future Land Use (FLU) Element and is a de facto future land use plan amendment. On its face, the Ordinance amended the City's DMP Element, not the City's Future Land Use Map (FLUM). The only FLU designation for the entire DMP area is the Urban Central Business District. The OBD Amendment did not change the FLUM since the designation remains Urban Central Business District. DMP Element Policy 3.1.3 stated that the City would establish zoning designations, and specifically indicated that Table DMP-1 identified the maximum FAR and maximum height allowed within each zoning subdistrict by right and with incentives. The City's illustrative zoning maps included in the DMP Element were reviewed in the past by the state land planning agency and were accepted as part of the DMP Element, not as a part of the FLU Element or FLUM. The Petitioners' argument is an attempt to challenge the status quo by claiming that the OBD Amendment is part of a change to or in conflict with the FLU Element when no change to the FLUM has occurred. The City's interpretation of its Comp Plan is reasonable. Ultimate Findings The Petitioners did not prove beyond fair debate that the Ordinance is not in compliance. All other contentions not specifically discussed have been considered and rejected. The City's determination that the Ordinance is in compliance is fairly debatable.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Economic Opportunity enter a final order finding the OBD Amendment adopted by the City by Ordinance No. 4783-18 "in compliance," as defined by section 163.3184(1)(b), Florida Statutes (2018). DONE AND ENTERED this 26th day of December, 2019, in Tallahassee, Leon County, Florida. S FRANCINE M. FFOLKES 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 26th day of December, 2018. COPIES FURNISHED: Nathan E. Nason, Esquire Nason, Yeager, Gerson, White & Lioce, P.A. 3001 PGA Boulevard Palm Beach Gardens, Florida 33410 (eServed) John Kenneth Rice, Esquire Nason, Yeager, Gerson, White & Lioce, P.A. 750 Park of Commerce Boulevard Boca Raton, Florida 33487 (eServed) Terrell K. Arline, Esquire Terrell K. Arline, Attorney at Law, Company 1819 Tamiami Drive Tallahassee, Florida 32301 (eServed) Kimberly L. Rothenburg, Esquire K. Denise Haire, Esquire City of West Palm Beach 401 Clematis Street, 5th Floor West Palm Beach, Florida 33401 (eServed) Peter Penrod, General Counsel Department of Economic Opportunity Caldwell Building, MSC 110 107 East Madison Street Tallahassee, Florida 32399-4128 (eServed) Cissy Proctor, Executive Director Department of Economic Opportunity Caldwell Building 107 East Madison Street Tallahassee, Florida 32399-4128 (eServed) Stephanie Webster, Agency Clerk Department of Economic Opportunity Caldwell Building 107 East Madison Street Tallahassee, Florida 32399-4128 (eServed)
Conclusions An Administrative Law Judge of the Division of Administrative Hearings has entered an Order Closing File in this proceeding. A copy of the Order is attached to this Final Order as Exhibit A.
Other Judicial Opinions REVIEW OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030 (b) (1) (C) AND 9.110. . TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT’S AGENCY CLERK, 2555 SHUMARD OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100, WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. FINAL ORDER NO. DCA09-GM-278 CERTIFICATE OF FILING AND SERVICE I HEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Community Affairs, and that true and correct copies have been furnished by the manner indicated to each of the persons listed below on this 5 OM aay ° , 2009. Paula Ford Agency Clerk By U.S. Mail Honorable Donald R. Alexander Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 Shannon K. Eller Deputy General Counsel City of Jacksonville 117 West Duval Street, Suite 480 Jacksonville, FL 32202 By Hand Delivery Lynette Norr Assistant General Counsel Department of Community Affairs
Conclusions An Administrative Law Judge of the Division of Administrative Hearings has entered an Order Closing File in this proceeding. A copy of the Order is attached to this Final Order as Exhibit aA.
Other Judicial Opinions REVIEW OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030 (b) (1) (C) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT’S AGENCY CLERK, 2555 SHUMARD OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100, WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. FINAL ORDER NO. DCA10-GM-016 CERTIFICATE OF FILING AND SERVICE I HEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Community Affairs, and that true and correct copies have been furnished as indicated to each of the persons listed below on this Y day of \W. , 2010. aula Ford Agency Clerk By U.S. Mail Mark E. Lupe, Esquire Assistant City Attorney City of Cape Coral Post Office Box 150027 Cape Coral, Florida 33915-0027 Jeffrey Brown, Esquire Oertel Fernandez Cole & Bryant PA PO Box 1110 . Tallahassee, Florida 32302-1110 By Hand Delivery Lynette Norr Assistant General Counsel Department of Community Affairs By Interoffice Mail The Honorable Donald R. Alexander Administrative Law Judge Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060
Findings Of Fact Respondent was registered with Petitioner as a pool contractor, Registration No. RP0017996, from January to June 30, 1974 (Petitioner's Composite Exhibit 2.) On February 22, 1974, Respondent entered into a contract with John G. Hartong, 813 Kings Bay Drive Southwest, Crystal River, Florida, to construct a screened swimming pool for the total price of $7,331.25. Construction of the pool began in July of 1974. Prior to that time, Respondent sent his foreman to the building department of Citrus County to obtain a building permit for the job because the county had issued such permits for work in Crystal River in the past. In actuality, the City of Crystal River began issuing such permits for construction work in that community commencing June 15, 1974. Neither Citrus County nor the City of Crystal River issued a permit for the work at the Hartong residence. Respondent assumed that his foreman had obtained the necessary permit and did not inquire into the matter further. City officials of Crystal River discovered the job in progress in late July. At that time, the gunite for the pool was about two-thirds completed and it would have been impossible to inspect unless everything was "pulled out". Respondent had been ill during this period and receiving daily medical checkups. As a result, he had entrusted his foreman with a great deal more responsibility than usual. Respondent normally had five to ten pool jobs in progress at the same time. In August, 1974, Respondent suffered a heart attack and was hospitalized. Work apparently ceased on the Hartong pool at this point or somewhat earlier and, after numerous attempts to contact Respondent as to completion of the work, Mr. Hartong secured another contractor to do so. However, this firm required that Hartong obtain a release from Respondent prior to taking over the work. Hartong therefore visited Respondent in the hospital and the parties settled the matter by executing a release. Prior to entering the hospital, Respondent had been on the Hartong job on only two different occasions and his first contact from city officials came just before he was hospitalized. After the parties had entered into their settlement, Respondent did no further work on the pool. In October, 1974, the building official of Crystal River advised Respondent by correspondence that he should obtain a permit for the work and furnished him an application for a local Certificate of Competency as a contractor. Although Respondent submitted an application for such a certificate, the city tabled the application pending his compliance with city ordinances concerning permit requirements for the Hartong pool. In view of his release from Hartong, Respondent did not pursue the matter any further. Hartong had been particularly disturbed by the fact that electrical wires from a switch on the wall of his house ran to the pool deck and when the switch was on, the wires were live. He was fearful that his children might put them in the water and create a shock hazard (Testimony of Pulver, Hartong, duPlanti, Respondent; Petitioner's Composite Exhibit 3, Petitioner's Exhibits 4 & 6.) About the middle of 1974, Respondent entered into a contract with Craig Marlett to build a pool. It was not established at the hearing as to whether this work was to be performed in Citrus County or within the city limits of Crystal River. Respondent testified that there was no building permit obtained for this work, but that he had subcontracted the job to his foreman and provided him with funds to obtain a proper permit. However, he did not check to see if one had been obtained (Testimony of Respondent, Pulver, Petitioner's Exhibit 7.) Approximately February 28, 1975, pursuant to a pool contract with Jack Freeman, Ocala, Florida, Respondent commenced work by excavating the hole on the site. He testified that he was not aware that he did not have a building permit when he began this work, but obtained it the following Monday. In fact, the application for a building permit to Alachua County was submitted on March 4, 1975, a Tuesday, and the permit was issued on March 10, 1975. Article XIV, Section V, Zoning Regulations for Alachua County, Florida requires that no building shall be constructed, reconstructed, altered or extended unless a building permit has been issued, indicating that such use complies with county requirements (Testimony of Respondent, Petitioner's Exhibits 5 & 8.) Respondent has been building swimming pools for approximately 10 years. His experience includes construction of approximately 700 pools (Testimony of Respondent.)
Recommendation That the allegations against Respondent be dismissed. DONE and ENTERED this 7th day of April, 1976, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: David Linn, Esquire 217 South Adams Street Tallahassee, Florida James A. Shook, Esquire 415 North West First Avenue Post Office Box 924 Ocala, Florida 32670
