The Issue Whether the Campus Master Plan Amendments adopted by Respondent, University of Central Florida's, Board of Trustees, on November 30, 2004 (2005-2015 Campus Master Plan), complies with the requirements of Section 1013.30, Florida Statutes,1/ and Florida Administrative Code Chapter 6C-21; Whether Petitioner, Ronald M. Brooke, was provided a clear point of entry to the administrative process, but failed to timely file the Petition challenging the 2005-2015 Campus Master Plan Amendments; and Whether Respondent should be awarded reasonable attorneys' fees and costs under either Subsection 120.569(2)(e) or 1013.30(8)(d), Florida Statutes. AS TO CASE NO. 06-0327 Whether the Campus Master Plan Amendments adopted by Respondent, University of Central Florida's, Board of Trustees, on November 9, 2005 (the 2005 Stadium Amendment), complies with the requirements of Section 1013.30, Florida Statutes, and Florida Administrative Code Chapter 6C-21; and Whether Respondent should be awarded reasonable attorneys' fees and costs under either Subsection 120.569(2)(e) or 1013.30(8)(d), Florida Statutes.
Findings Of Fact On July 12, 2005, UCF held a workshop regarding the 2005 Stadium Amendment, as required by Subsection 1013.30(6), Florida Statutes. The workshop included a gallery-style presentation of each portion of the proposed Stadium Amendment with appropriate UCF staff available to answer questions posed by attending agencies and the public. On July 25, 2005, and November 9, 2005, UCF held public hearings regarding the proposed 2005 Stadium Amendment, as required by the statute. At the conclusion of the second public hearing on November 9, 2005, a meeting of the BOT was convened and UCF's BOT voted to adopt the proposed 2005 Stadium Amendment, as revised. As originally proposed, the 2005 Stadium Amendment included the following: (a) addition of Policy 1.2.8 to the Recreation and Open Space Element, which provided, "A football stadium shall be located on lands in the northern portion of the UCF main campus, in the area generally bounded by Orion Blvd. to the east and McCulloch Rd. to the north"; (b) addition of the football stadium to the Capital Improvements List in the Capital Improvements Element; (c) addition of the football stadium and associated surface parking to the Urban Design Element, Figure 3-1, entitled, "Urban Design/Capital Improvements"; and (d) addition of the football stadium and associated surface parking to the Transportation Element, Figure 2.11-13, entitled, "Existing and Planned Parking Structure." The 2005 Stadium Amendment was supported by data and analysis, which included: a Summary of Impact and Need Data Analysis; Conceptual Financing Structure; Feasibility Analysis; Physical Review/Renderings; Construction Concept; Opinion on Cost; Traffic and Parking Impacts; Transportation and Parking Concept Plan; Stormwater, Potable Water and Sanitary Sewer Impacts; Noise Study; Sight Line Study; permits from the SJRWMD; and additional data and analysis provided to DCA. The data and analysis for the stadium also included an evaluation of the need for an on-campus football stadium. As a result of comments made by the DCA, the East Central Florida Regional Planning Council, Orange County, and the public, UCF staff proposed that the new Policy 1.2.8 to the Recreation and Open Space Element be amended to read as follows: Recreation and Open Space Element Goal 1.2.8 A football stadium shall be located on lands in the northern portion of the UCF main campus, in the area generally bounded by Orion Blvd. to the east and McCulloch Rd. to the north. The University shall develop a Traffic Management Program that will include Traffic Demand Management strategies, such as the SCOOT System, parking management program, game day traffic management techniques, public transit/park-and-ride mode share, pre-trip traveler information, bicycle accommodations, guide signing, one- way reversible travel lanes on campus, on- campus post-games activities, and the creation of a local traffic stakeholder group, all as described in the Final Traffic and Parking Study, prepared by PBS&J, dated July, 2005, in order to minimize game day traffic and parking impact. UCF will work with Orange and Seminole County staff to address lighting and noise mitigation during the design and construction phase of the stadium. This was the version of Policy 1.2.8 that was ultimately adopted by UCF's BOT on November 9, 2005. Petitioner asserts that UCF may convert the proposed 45,000-seat football stadium to a 65,000-seat facility at any time. Although the construction concept envisions the possibility of a 65,000-seat facility, UCF must amend its CMP in order to expand the facility beyond 45,000 seats and comply with the requirements of the statute for a "major" amendment, if and when such expansion should occur. Petitioner contends that there is inadequate data and analysis to support the 2005 Stadium Amendment in the following areas: transportation and parking; land use compatibility, including noise and lighting impacts; height and compatibility with single-family residential homes; and consistency with the land uses and intensities of use allowed on the Future Land Use Map within the CMP. Noise Prior to the adoption of the 2005 Stadium Amendment, UCF contracted with Acoustic Dimensions to conduct an analysis of the sound expected to be generated by the proposed football stadium, as well as the level of noise currently existing in the area surrounding the proposed football stadium site ("Noise Study"). It is proposed that the sound system for the proposed football stadium will utilize a new technology that directs sound into the stadium seats, keeping as much sound as possible away from the outside of the stadium. Excess noise would be directed out of the stadium in a southerly direction, toward the center of campus, and away from the residential neighborhoods to the east and north. Although UCF is not subject to the noise regulations in the Orange and Seminole County Ordinance Codes, the anticipated noise levels at the proposed stadium were compared to the levels deemed acceptable within Orange and Seminole County. Both Orange and Seminole County exempt sporting events from their noise codes. However, even if sporting venues, such as the proposed football stadium, were subject to Orange and Seminole County noise regulations, the Noise Study predicted that noise generated by a public address system, crowd noise, and marching bands within the proposed stadium would each fall below the levels set forth in the Orange County Code, selected at three locations close by the proposed stadium. Based on the Noise Study, which appears to be reliable, the sound coming from the proposed football stadium would not be overly intrusive into the residential neighborhoods to the east and north. There is anecdotal evidence that intrusive noise will impact the surrounding neighborhoods, and additional noise mitigation measures should be considered during the design and construction phase of the stadium. However, the projected noise levels are not incompatible with the surrounding area. Lighting Prior to the adoption of the 2005 Stadium Amendment, it was determined that lighting technology has improved dramatically, particularly over the past five years. UCF has chosen lighting for the football stadium, which requires 40 percent less lighting fixtures than older technology, uses less electricity, directs more light toward the field, and results in less increase in light in surrounding areas (also known as "spill light"). A computer modeling analysis of the spill light was created at 300 feet, 600 feet, and 900 feet from the outer wall of the proposed football stadium modeling the type of lights UCF plans to use for the football stadium. This includes 36 light fixtures mounted on 140-foot poles located at the four corners of the stadium, for a total of 144 fixtures. In addition, the spill analysis assumed there were no trees or other physical barriers to block any light emanating from the football stadium. The spill analysis predicted both horizontal and vertical foot candles. Horizontal foot candles are measured light that falls on a horizontal surface. Vertical foot candles are light measured by directing a light meter toward the light source, so vertical foot candles are more relevant to the amount of light capable of being seen from outside the stadium. Based on the spill analysis, average vertical foot candles at 900 feet from the edge of the stadium would be .0004 foot candles. The amount of spill light decreases by one-fourth (one-quarter) as the distance from light is doubled. Therefore, without any trees or other barriers, the amount of spill light created by the football stadium lights in the closest residential community (University Estates)(which is more than 900 feet from the wall of the proposed stadium) would be nearly immeasurable. Light measurements in University Estates were taken around 8:00 p.m., during the week prior to the hearing, in front of 4632 Warrington Drive, which is a home owned by Petitioner. The light measurements at this location were 1.1 foot candles and 0.6 foot candles at the north end of the property. Therefore, the amount of light currently existing in University Estates during the normal evening hours will exceed any minuscule increase in ambient light generated by the football stadium. Orange County's lighting standards do not apply to UCF. However, they are instructive in determining whether the lighting at the football stadium will be compatible with the surrounding community. Orange County Ordinance Article XVI, s. 9-649(a)(5), provides that illumination levels at the property line should not be more than 0.5 foot candles, where the project is next to a residential use, and 1.0 foot candles, where the project is next to any other use. Considering, the worse case scenario, the vertical light at 900 feet from the stadium, which is well within the UCF campus boundaries, would be a maximum of .01 foot candles. Therefore, the light produced by the proposed UCF stadium is not incompatible with the standards set by Orange County for the surrounding community. UCF staff also prepared a Sight Line Study to determine the ability of residents in University Estates and Carillon subdivision to view the stadium lights themselves given the amount of treed buffer which lies between these neighborhoods and the proposed football stadium location. The Sight Line Study is determined not to be reliable. However, the ability to see the stadium lighting fixtures from their property does not mean that such lights are incompatible with the surrounding uses. Traffic and Parking Prior to the adoption of the 2005 Stadium Amendment, UCF commissioned a transportation study ("Transportation Study") by PBS&J consultants and a parking analysis ("Parking Plan") by Gameday Management Group, to assess the transportation and parking impacts of the proposed football stadium. The Transportation Study evaluated the onsite transportation impacts within the "Context Area" surrounding UCF, as is required by Florida Administrative Code Rule 6C-21.205(1) and (2). The Context Area used in the Transportation Study was the same Context Area identified in the Transportation Element of the CMP. Because a football stadium is not one of the standard uses studied and evaluated by the Institute of Transportation Engineers ("ITE"), the football stadium was analyzed as a "special generator." Carlin and his staff collected all of the available data regarding transportation impacts from other football stadiums in order to develop a methodology to evaluate the impacts of the proposed UCF football stadium. The methodology was independently peer reviewed by a company called Rizzo and Associates. Rizzo and Associates was qualified in peer review methodology as they had performed similar analyses for the recently constructed Boston College and New England Patriots football stadiums. The Boston College football stadium is located in a suburban area similar to the proposed location for the UCF football stadium. The methodology for assessing the impacts from the proposed football stadium was also reviewed and approved by the Florida Department of Transportation, Orange County, Seminole County, and the City of Oviedo. The Transportation Study analyzed the impacts on onsite and offsite roadways from the inbound peak traffic and outbound peak traffic for a 45,000 attendee Saturday football game. This was a worse-case scenario, as the inbound peak traffic and the outbound peak traffic would not actually occur at the same time. The Transportation Study concluded that, with the exception of only two roadway segments and intersections, roadway conditions would remain at or below the levels of service set for the onsite and offsite intersections and roadways with the Context Area. The Transportation Study also recommended a variety of Traffic Demand Management strategies, which would mitigate overall transportation impacts, as well as the impacts to the few roadway segments and intersections which exceeded the level of service in the analysis. Examples of Traffic Demand Management techniques recommended in the Transportation Study include: the "SCOOT" System, parking management program, game day traffic management techniques, public transit/park-and-ride mode share, on-campus post-game activities, pre-trip traveler information, bicycle accommodations, guide signing, one-way reversible travel lanes on campus, and the creation of a local traffic stakeholder group. The "split cycle offset optimization timing technique" or "SCOOT" System would be particularly helpful because the two primary roadways that access the UCF campus are constrained, meaning that they cannot be widened any further. The SCOOT system effectively expands the capacity of existing roads by improving the timing of signals based on actual use. Therefore, the SCOOT system alone could bring several of the roadway links and intersections back to their designed levels of service. Orange County is one of the few local governments in the United States that already utilizes the SCOOT system, and it, along with Seminole County, supports the use of the SCOOT system for UCF football games. Although the Transportation Study did not specifically address transportation impacts for a weekday game, the Traffic Demand Management strategies recommended in the Transportation Study would mitigate roadway impacts for UCF football games, which may occasionally be scheduled on weekdays. As a result of the Transportation Study and recommendations from various government entities, UCF added specific requirements to Policy 1.2.8 of the Recreation and Open Space Element that UCF implement the Traffic Demand Management strategies recommended in the Transportation Study. Based on the Transportation Study and the specific requirements set forth in Policy 1.2.8 of the Recreation and Open Space Element, the proposed football stadium will be compatible with the surrounding community from a transportation perspective. The Parking Plan was based on the parking inventory data assessed through the Transportation Plan and assumed a 45,000 attendee football game. The Parking Plan divides the UCF campus into parking zones and identifies primary and secondary ingress and egress routes, dedicated traffic control points, and law enforcement needs for each zone. In addition, the Parking Plan identifies ways in which to tie parking to ticket purchases by assigning parking areas at the time of ticket purchases. For those who do not have an assigned parking area prior to game day, media releases, open house sessions, and coordination with the stakeholder groups would be used to inform the attendees of parking areas. Based on the Parking Plan, there would be adequate parking for football games. The Parking Plan will be refined through review by a stakeholders group that is being formed as one of the Traffic Demand Management strategies to be implemented by UCF. The Parking Plan will minimize parking impacts on surrounding communities. Petitioner did not present any expert testimony or other evidence regarding transportation or parking impacts from the proposed football stadium. Petitioner did present several fact witnesses who testified generally regarding their concerns about traffic and parking impacts in the future. However, as fact witnesses, their opinions regarding potential future impacts do not have probative value. Policy 1.2.8 of the Recreation and Open Space Element contains reasonable transportation demand management techniques to minimize offsite impacts. Overall Onsite and Offsite Land Use Compatibility Petitioner contends generally that the proposed football stadium is incompatible with residential land uses adjacent to the UCF campus. In support of this allegation, Petitioner cites to letters from the East Central Florida Regional Planning Council, Florida Department of Community Affairs and Orange County commenting on the proposed stadium amendment. However, each of these agencies, through both follow-up letters and expert testimony at the final hearing, indicated that they were satisfied with the analysis provided by UCF and that there were adequate measures in place so that the proposed football stadium would be compatible with the surrounding community. In addition, UCF staff analyzed several alternative sites for the proposed stadium. This alternative analysis, although not exhaustive, included a review of roadways and access, proximity to residential neighborhoods, and proximity to other athletic operations and student housing. By contrast, Petitioner Brooke did not present any expert testimony as to this allegation. Through the matrix submitted as Petitioner's Exhibit 35, Petitioner alleged that UCF had concluded that the currently proposed stadium location was incompatible with residential neighborhoods. However, testimony from UCF witnesses clearly show that the matrix merely identified compatibility with neighborhoods as a concern and did not establish incompatibility. As with traffic and parking impacts, Petitioner also presented several fact witnesses who testified regarding their concerns about potential future compatibility issues. However, as fact witnesses, their opinions regarding potential future incompatibilities is not probative and is certainly outweighed by the expert testimony presented by UCF. Therefore, the preponderance of the evidence shows that the proposed 2005 Stadium Amendment is compatible with the surrounding community and that the data and analysis relied upon adequately addresses the offsite and onsite impacts. Conflicts With the Orange and Seminole County Comprehensive Plans Petitioner contends that the 2005 Stadium Amendment is in conflict with the Orange County Comprehensive Plan. However, all but one of the provisions of the Orange County Comprehensive Plan cited by Petitioner in the 2005 Stadium Amendment Petition were stricken as being wholly irrelevant to the 2005 Stadium Amendment challenge. The only remaining provision of the Orange County Comprehensive Plan with which Petitioner contends the 2005 Stadium Amendment conflicts is Policy 3.2.13 which provides: "The full retail/general commercialization of an intersection shall be avoided unless sufficient justification of need is provided. Office, hotel, and multi-family uses can be used to avoid the full commercialization of an intersection." Petitioner presented no evidence to support this allegation. In fact, expert testimony was that the 2005 Stadium Amendment is not in conflict with the Orange County Comprehensive Plan. Petitioner did not make any allegations regarding conflict with the Seminole County Comprehensive Plan, and accordingly, no evidence was allowed during the hearing regarding this topic. Consistency with the State Comprehensive Plan Petitioner contends that the 2005 Stadium Amendment is not consistent with the State Comprehensive Plan set forth in Section 187.201, Florida Statutes. In the 2005 Stadium Amendment Petition, Petitioner cites to the following subsections of the State Comprehensive Plan, in which Petitioner alleges is in conflict with 2005 Stadium Amendment: (5) health; (6) public safety; (7) water resources; (9) natural systems; (10) air quality; (11) energy; (13) mining; (14) property rights; (15) land use; (16) urban and downtown revitalization; (17) public facilities; (19) transportation; (20) governmental efficiency; (21) economy; and (25) plan implementation. The State Comprehensive Plan is intended to be a direction-setting document and is to be construed as a whole. See § 187.101, Fla. Stat. No specific goal or policy in the plan is to be construed or applied in isolation from the other goals or policies of the plan. The plan does not create regulatory authority. Id. See also Fla. Admin. Code R. 6C-21.213(4). In addition, the policies of the State Comprehensive Plan may be implemented only to the extent that financial resources are provided pursuant to appropriations of a public entity, such as UCF. See § 187.101(2), Fla. Stat. The decision regarding which particular State Comprehensive Plan goals or policies will be furthered by the expenditure of a university's financial resources in any given year is a decision which rests with the university's board of trustees. See Fla. Admin. Code R. 6C-21.213(5). Petitioner did not present any expert planning testimony regarding the consistency of the 2005 Stadium Amendment with the State Comprehensive Plan. Respondent did present testimony by an expert in planning. Todd Peetz testified that the 2005 Stadium Amendment is compatible with and furthers various goals and policies of the State Comprehensive Plan. For example, the 2005 Stadium Amendment provisions regarding traffic demand strategy are compatible with and further subsection (19) of the State Comprehensive Plan relating to transportation. No evidence was presented by Petitioner which showed that the 2005 Stadium Amendment was in conflict with the State Comprehensive Plan. Moreover, not every goal and policy must be furthered by a CMP. That decision is within the jurisdiction of a university itself. See § 187.101, Fla. Stat., and Fla. Admin. Code R. 6C-21.213(5). Based on the preponderance of the evidence, the 2005 Stadium Amendment is consistent with the State Comprehensive Plan. Other Allegations Petitioner contends that 2005 Stadium Amendment does not contain all of the required elements as established by Section 1013.30, Florida Statutes, and Florida Administrative Code Rules 6C-21.201, 6C-21.203, 6C-21.204, 6C-21.208, 6C-21.209, 6C-21.210, and 6C-21.213. However, there is no requirement that "major" amendments to CMPs involve changes to every element or that the amendments themselves contain all of the elements required by Section 1013.30, Florida Statutes, and Florida Administrative Code Chapter 6C-21. The 2005 Stadium Amendment amended four portions of the 2005-2015 CMP Amendment, and all other provisions in the 2005-2015 CMP Amendment remained the same. Therefore, the 2005-2015 CMP Amendment contains all the elements required by Section 1013.30, Florida Statutes, and Florida Administrative Code Chapter 6C-21. Petitioner contends that significant land-clearing and construction projects were conducted prior to the adoption of the 2005 Stadium Amendment that were solely in support of, and only required because of the proposed football stadium. The evidence supports the counter-assertion that said land-clearing and construction were not part of the 2005 Stadium Amendment process. Therefore, it cannot be challenged by Petitioner through the 2005 Stadium Amendment Petition. However, even if Petitioner could challenge such actions through the 2005 Stadium Amendment Petition, the preponderance of evidence adduced at the hearing was that the land-clearing and construction projects complained of by Petitioner were part of other duly-adopted amendments to the CMP. Petitioner presented evidence regarding two such actions. The first construction project that Petitioner argued was improper was the movement of the Women's Softball Stadium from the Athletics Node to a location on the southeast side of Orion Boulevard. This action was adopted as a "minor" amendment to the 2005-2015 CMP Amendment on January 18, 2005. Even if Petitioner could challenge the "minor" amendment through this proceeding, the adoption package from the BOT meeting adequately shows that the Softball Field Stadium Amendment was below the thresholds set forth in Subsection 1013.30(9), Florida Statutes, and was appropriately adopted as a "minor" amendment. Thus, the preponderance of the evidence demonstrates that the use of the "minor" amendment process was appropriate and that the related land-clearing and construction were properly authorized. Second, Petitioner also complained of land-clearing in the area where the football stadium was ultimately proposed. However, this area was cleared to accommodate the athletic practice fields which were planned for that area prior to the consideration of the football stadium. UCF obtained permits from SJRWMD for both the grading of the area, as well as the stormwater system for the athletic practice fields. The clearing of land itself does not require a change to the CMP. Petitioner contends that the construction of the football stadium and the additional construction which will be associated with the football stadium is inconsistent with the study and information set forth in the Executive Summary for the 2000-2010 CMP. Petitioner presented no evidence to support this allegation other than his personal belief that all amendments must be consistent with the Executive Summary from the 2000-2010 CMP. The purpose of an Executive Summary is to briefly describe the CMP. The Executive Summary of the 2000-2010 CMP was superseded by the Executive Summary in the 2005-2015 CMP Amendment. The 2005 Stadium Amendment amended the 2005-2015 CMP Amendment. Therefore, it only needs to be consistent with the Executive Summary in the 2005-2015 CMP Amendment. Petitioner alleges that the construction projects undertaken by UCF through the 2005-2015 CMP Amendment and the 2005 Stadium Amendment have and will violate the standards and requirements of stormwater management as established by SJRWMD. UCF obtained an Environmental Resource Permit for the proposed football stadium. This permit was not challenged by Petitioner. Petitioner cannot collaterally challenge the SJRWMD football stadium permit through this proceeding. Petitioner provided no evidence that the SJRWMD has issued any notices of violation to UCF regarding its football stadium permit. In fact, the evidence supports Respondent's position that the UCF stormwater system is currently in compliance with SJRWMD rules. Petitioner also provided no evidence that UCF is violating this permit. Even if Petitioner had provided such evidence, this proceeding is not the appropriate forum for a determination of whether such allegations can be challenged through an administrative remedy, under Florida's Administrative Procedures Act. Petitioner alleges that the procedures followed during the public hearings on the 2005 Stadium Amendment, held on July 25, 2005, and November 9, 2005, violated Administration Commission Final Order AC-05-002, Subsections 1013.30(3), (5) and (6), Florida Statutes, and Florida Administrative Code Chapter 6C-21. Compliance with Final Order AC-05-002 is outside the scope of this proceeding. Nevertheless, Final Order AC-05-002 merely states that UCF has agreed to follow the "major" amendment process with respect to the addition of a football stadium on the UCF campus. It is undisputed that UCF has attempted to adopt the 2005 Stadium Amendment pursuant to the "major" amendment requirements set forth in Subsections 1013.30(6) through (8), Florida Statutes. It is also undisputed that Petitioner appeared at both of the public hearings regarding the 2005 Stadium Amendment and was permitted to present oral statements and written comments. Petitioner presented no evidence that he, or any other individual, was prevented from attending or providing oral or written comment at either one of the public hearings. Petitioner is upset that the BOT did not engage in a verbal discussion with the citizenry who were in attendance at the public hearing and did not explain themselves prior to their vote. This is not required as part of the public hearing process. Petitioner also alleged that UCF's BOT did not consider all the information provided by the public in making its decision. However, what each member of UCF's BOT considered prior to the vote on the 2005 Stadium Amendment is not relevant in this de novo proceeding, and this tribunal will not go behind the vote of a legally constituted public body. In addition to the statutorily required workshop and public hearings, the UCF staff conducted numerous meetings to discuss the 2005 Stadium Amendment and answer questions from the public. These meetings included Orange County, Seminole County, homeowner associations, and the Florida Department of Community Affairs. FINDINGS OF FACT AS TO RESPONDENT'S MOTION FOR ATTORNEYS' FEES AND COSTS As to Case No. 06-0328 Based on the testimony of Petitioner during the eight- day hearing and during his deposition in this proceeding, as cited to and described in Respondent's Motion for Attorneys' Fees and Costs, the undersigned ALJ hereby finds that although the Petitioner filed his initial Petition, as well as the Amended Verified Petition in this proceeding, late, nevertheless, he vigorously and determinedly presented his case without the assistance of an attorney, sometimes inartfully, but always sincerely and not for a frivolous or improper purpose. As to Case No. 06-0327 Petitioner timely filed his initial Petition and Amended Verified Petition in this proceeding, and with great effort of time and expense presented his case, without the assistance of counsel, before this tribunal. The evidence does not support the position that Petitioner filed this proceeding, or pursued it, for a frivolous or improper purpose.
Conclusions Jurisdiction The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding pursuant to Section 120.569 and Subsections 120.57(1) and 1013.30(8), Florida Statutes. (See Preliminary Statement, pps. 4-5 above.) Section 1013.30, Florida Statutes (both the 2004 and 2005 versions), contains provisions for campus planning and concurrency management that supersede the requirements of Part II of Chapter 163, Florida Statutes. Each university BOT is required to prepare and adopt a CMP for the university, as set forth in the statute, and must update the CMP at least every five years. An "affected person" is defined as one who "submitted oral or written comments, recommendations, or objections to the university during the period of time beginning with the advertisement of the first public hearing under subsection (6) and ending with the adoption of the campus master plan or plan amendment." § 1013.30(2)(b), Fla. Stat. "Any affected person who files a petition under [Fla. Stat. s. 1013.30(7)] may challenge only those provisions in the plan that were raised by that person's oral or written comments, recommendations, or objections presented to the university board of trustees." § 1013.30(7), Fla. Stat. Petitioner is an "affected person" pursuant to Subsection 1013.30(2)(b), Florida Statutes, with respect to the 2005-2015 CMP Amendment and the 2005 Stadium Amendment since he owns a residence near the campus and submitted oral and written comments to Respondent. The burden of proof, absent a statutory directive to the contrary, is on the party asserting the affirmative of the issue in any proceeding before DOAH. Young v. Department of Community Affairs, 625 So. 2d 831 (Fla. 1993); Florida Department of Transportation v. J.W.C. Company, 396 So. 2d 778 (Fla. 1st DCA 1981). Subsection 1013.30(7), Florida Statutes, requires that any affected person who files a petition challenging a CMP or CMP amendment, "may challenge only those provisions in the plan that were raised by that person's oral or written comments, recommendations, or objections presented to the university board of trustees." In each of his Amended Verified Petitions, Petitioner has not raised issues which were not presented to UCF's BOT prior to its vote on either of the amendment petitions. Subsection 1013.30(7), Florida Statutes, further requires that a petition filed by an affected person must "state each objection, identify its source and provide a recommended action." Based on the allegation requirements in Section 1013.30, Florida Statutes, petitioners who challenge CMPs or CMP amendments are the parties who must affirmatively assert the sections of the proposed CMPs or CMP amendments which are not in compliance with Section 1013.30, Florida Statutes, or the rules implementing said statute. Therefore, it is clear that Petitioner has diligently attempted to do so in these proceedings. All proceedings under Subsection 120.57(1), Florida Statutes, are de novo. (Findings of fact shall be based upon a preponderance of the evidence . . . or except as otherwise provided by statute, and shall be based exclusively on the evidence of record and on matters officially recognized.") § 120.57(1)(j), Fla. Stat. What a legally constituted public body considered or did not consider prior to its vote on a matter is irrelevant in a de novo hearing. See generally Zemel v. Lee County, 15 F.A.L.R. 2735 (Department of Community Affairs, June 22, 1993), aff'd 642 So. 2d 1367 (Fla. 1st DCA 1994). CMPs and CMP amendments are governed by Section 1013.30, Florida Statutes, and Florida Administrative Code Chapter 6C-21. Section 1013.30, Florida Statutes, does not specifically establish the standard of proof for challenges to CMPs or CMP amendments. Therefore, the standard of proof set forth in Subsection 120.57(1)(j), Florida Statutes, applies to this proceeding. CMPs "must not be in conflict with the comprehensive plan of the host local government and the comprehensive plan of any affected local governments. A CMP must be consistent with the [S]tate [C]omprehensive [P]lan." § 1013.30(5), Fla. Stat.; see also Fla. Admin. Code R. 6C-21.213(1). "A campus master plan is consistent with the State Comprehensive Plan if the master plan is compatible with and furthers such plan." Fla. Admin. Code R. 6C-21.213(1). "The term 'compatible with' means that the campus master plan is not in conflict with the State Comprehensive Plan or appropriate local government comprehensive plans. The term 'furthers' means to take action in the direction of realizing goals or policies of the state or local plans." Fla. Admin. Code R. 6C-21.213(2). "A campus master plan is in conflict with the adopted comprehensive plans of the host local government and any affected local governments if the master plan promotes an intrinsic or essential lack of harmony with the local government comprehensive plan." Fla. Admin. Code R. 6C-21.213(3). "For the purpose of determining whether campus master plans are consistent with the State Comprehensive Plan and not in conflict with appropriate local comprehensive plans, the state or local plan shall be construed as a whole and no specific goal and policy shall be construed or applied in isolation from other goals or policies in the plans." Fla. Admin. Code R. 6C-21.213(4). "Each campus master plan shall address State Comprehensive Plan goals and policies which are relevant to the circumstances or conditions in its jurisdiction. The decision regarding which particular State Comprehensive Plan goals and policies will be furthered by the expenditure of the university's financial resources in any given year is a decision which rests with the [Board of Trustees of the University]. Fla. Admin. Code R. 6C-21.213(5); Board of Governors Resolution dated January 7, 2003. The CMP must "contain elements relating to future land use, intergovernmental coordination, capital improvements, recreation and open space, general infrastructure, housing, and conservation." § 1013.30(3), Fla. Stat. "Campus master plans may contain additional elements at the discretion of the Board of Governors; however, such elements are not subject to review" pursuant to Section 1013.30, Florida Statutes. § 1013.30(4), Fla. Stat.; see also Fla. Admin. Code R. 6C-21.108(2) and 6C-21.212(3). Each element of a CMP "must address compatibility with the surrounding community." § 1013.30(3), Florida Statutes. CMPs must consist of goals, objectives and policies; requirements for capital improvements implementation; procedures for monitoring and evaluation of the CMP; and required maps showing future conditions. "All other documentation may be considered as support documents. Support documents do not have to be adopted." Fla. Admin. Code R. 6C-21.203(1)(c). "Data or summaries thereof which are not part of the adopted campus master plan shall not be subject to the compliance review process." Fla. Admin. Code R. 6C-21.203(2)(a). "The transportation element must address reasonable transportation demand management techniques to minimize offsite impacts where possible." § 1013.30(3), Fla. Stat. "'Transportation demand management' means strategies and techniques that can be used to increase the efficiency of the transportation system. Demand management focuses on ways of influencing the amount and demand for transportation by encouraging alternatives to the automobile and altering local peak hour travel demand. These strategies may include, but not be limited to, ridesharing programs, flexible work hours, telecommuting, shuttle services and parking management." Fla. Admin. Code R. 6C-21.202(16). "Data are to be taken from professionally accepted existing sources. Data shall be the best available existing data, unless the university desires original data or special studies. Where data augmentation, updates, or special studies or surveys are deemed necessary by the university, appropriate methodologies shall be clearly described or referenced and shall meet professionally accepted standards for such methodologies." Fla. Admin. Code R. 6C-21.203(2)(c). Universities are not required to collect original data unless specifically required to do so. Fla. Admin. Code R. 6C-21.203(2)(b). Campus [m]aster plans must be updated at least every 5 years." § 1013.30(3), Fla. Stat.; see also Fla. Admin. Code R. 6C-21.203(7)(b). Amendments to CMPs must be reviewed pursuant to Subsections 1013.30(6) through (8), Florida Statutes: If such amendment, alone or in conjunction with other amendments, would: Increase density or intensity of use of land on the campus by more than 10 percent; Decrease the amount of natural areas, open space, or buffers on the campus by more than 10 percent; or Rearrange land uses in a manner that will increase the impact of any proposed campus development by more than 10 percent on a road or on another public facility or service provided or maintained by the state, the county, the host local government, or any affected local government. § 1013.30(9), Fla. Stat.; see also Fla. Admin. Code R. 6C-21.108(3). CMP amendments exceeding the thresholds set forth in Subsection 1013.30(9), Florida Statutes, are commonly referred to as "major amendments," while those below the thresholds set forth in Subsection 1013.30(9), Florida Statutes, are commonly referred to as "minor amendments." The "minor" amendment adopted by UCF's BOT on August 27, 2004, relating to the addition of housing in the athletic mode, was adopted as a "minor" amendment and is not subject to review under Subsections 1013.30(6) through (8), Florida Statutes, pursuant to Subsection 1013.30(9), Florida Statutes. The "minor" amendment adopted by UCF's BOT on January 18, 2005, relating to the relocation of a softball stadium was adopted as a "minor" amendment and is not subject to review under to Subsections 1013.30(6) through (8), Florida Statutes, pursuant to Subsection 1013.30(9), Florida Statutes. As to the 2005-2015 CMP Amendment Amendments to Section 1013.30, Florida Statutes, requiring referral of CMP challenges to DOAH were effective on July 1, 2005. The amendments in Section 1013.30, Florida Statutes, changed the process and procedure related to challenges of CMPs. Florida law is clear that, absent a clear legislative intent, a statutory amendment that relates to procedure or remedy is applied immediately upon its effective date whether or not a proceeding is pending at that time. Rothermel v. Florida Parole and Probation Commission, 441 So. 2d 663, 664-65 (Fla. 1st DCA 1983), approved by Griffith v. Florida Parole and Probation Commission, 485 So. 2d 818, 820 (Fla. 1986). In this instance, Petitioner's challenge was not filed until more than five months after Section 1013.30, Florida Statutes, became effective. Therefore, the Amended Verified Petition relating to the 2005-2015 CMP Amendment must be governed by Section 1013.30, Florida Statutes. Petitioner alleges that the UCF general counsel did not have the authority under Section 1013.30, Florida Statutes, to dismiss the initial Petition without prejudice. Despite this allegation, Petitioner did, in fact, comply with the UCF general counsel's Order by submitting an amended petition for the 2005 Stadium Amendment Petition and 2005-2015 CMP Amendment. Assuming by these actions that Petitioner has not waived his ability to question the authority of the UCF general counsel, Section 1013.30, Florida Statutes, and the rules implementing that statutory provision which set forth the authority for the UCF general counsel's actions, include the authority to dismiss an insufficient Petition. Florida Administrative Code Rule 6C-21.108(7) provides that "[i]f a petition is filed that does not substantially comply with the requirements of . . . this rule, the Board's General Counsel shall issue an order dismissing the petition with leave to file an amended petition." By resolution dated January 7, 2003, the Board of Governors for the Florida State University System adopted the rules of the State of Florida Board of Regents set forth in Florida Administrative Code Chapter 6C-21 and delegated all authority under said rules to the individual BOTs for each State university. Therefore, the UCF general counsel had adequate authority to dismiss the initial Petition without prejudice. Respondent is required to provide an affected person a "clear point of entry" to administrative proceedings. See § 120.569(1), Fla. Admin. Code R. 28-106.111 and McIntyre v. Seminole County School Board, 779 So. 2d 639 (Fla. 5th DCA 2001). When an agency provides a party with notice and a point of entry, failure to file a petition may waive the right to a request for a hearing. See Fla. Admin. Code R. 28-106.111(4); State Department of Environmental Regulation v. Puckett Oil Company, 577 So. 2d 988 (Fla. 1st DCA 1991). Subsection 1013.30(6), Florida Statutes, states, "[i]t is the intent of the Legislature that the university board of trustees comply with the notice requirements set forth in s. 163.3184(15) to ensure full public participation" with respect to the adoption of CMPs and CMP amendments. Subsection 163.3184(15), Florida Statutes, clearly states that it is the responsibility of Petitioner (as a member of the public) to provide a correct address in order to receive information. "It is the responsibility of the person completing the form or providing written comments to accurately, completely, and legibly provide all information needed in order to receive the courtesy informational statement." Based on the language in this section, the Legislature did not intend for notice requirements to be more than a courtesy, nor did the Legislature intend for agencies, such as UCF, to expend resources confirming addresses of affected persons. See, e.g., Kidder v. Cirelli, 821 So. 2d 1106, 1107 (Fla. 5th DCA 2002) (property owner bore burden of having correct address listed on tax roles, and tax deed would not be overturned because property owner did not receive notice due to incorrect address). Moreover, Petitioner received actual notice of the adoption of the 2005-2015 CMP Amendment because he attended the adoption hearing for the 2005-2015 CMP Amendment on November 30, 2004 and, therefore, was not prejudiced. See Sutterfield v. City of Rockledge, 2002 WL 31125197 (DOAH Case No. 02-1630GM) (adopted in toto.) (City's failure to comply with the seven-day advertising requirement under Subsection 163.3184(15)(b)1., Florida Statutes (2002), was not fatal due to Petitioner's attendance at the transmittal hearings and presentation of comments at these hearings.) See also Edmond J. Gong and Dana L. Clay v. Department of Community Affairs and City of Hialeah, 1994 WL 1027737 (DOAH Case No. 94-3506GM)(When a person asserts that statutory notice requirements have not been satisfied, he bears the burden of showing prejudice occasioned by the procedural error, a task made much more difficult when, as here, Petitioner had actual notice of the relevant hearings and agency action and participated throughout the proceeding). Failure to file a Petition in a timely manner without justification is not acceptable. See Fla. Admin. Code R. 28-106.111(4). Subsection 1013.30(7), Florida Statutes, required Petitioner to file his petition "within 30 days after receipt of the notice of adoption of the campus matter plan, or 30 days after the date the adopted plan is available for review, whichever is later, . . . ." Petitioner filed his initial Petition challenging the adoption of the 2005-2015 CMP Amendment more than one year after the BOT's action. There was no evidence presented that would show that Petitioner was misled or lulled into inaction by some conduct of Respondent. Therefore, Petitioner has not demonstrated that he is entitled to invoke the doctrine of equitable tolling under Machules v. Department of Administration, 523 So. 2d 1132, 1134 (Fla. 1988). Accordingly, the Amended Verified Petition challenging the 2005-2015 CMP Amendment Petition was not timely filed and should be dismissed. Assuming, arguendo, that the 2005-2015 CMP Amendment Petition was timely filed as set forth in the Findings of Fact above, Petitioner has failed to show by the preponderance of evidence that the 2005-2015 CMP Amendment does not comply with the requirements of Section 1013.30, Florida Statutes, or Florida Administrative Code Chapter 6C-21. As to the 2005 Stadium Amendment For the reasons set forth in the Findings of Fact and based on the foregoing Conclusions of Law, Petitioner has failed to show by a preponderance of the evidence that the 2005 Stadium Amendment does not comply with the provisions of Section 1013.30, Florida Statutes. As to Respondent's Motion for Attorneys' Fees and Costs The evidence does not support a finding that attorney's fees and costs should be awarded under either Subsection 120.569(2)(e) or 1013.30(2)(d), Florida Statutes.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Secretary of the Department of Community Affairs enter a final order determining: (1) as to Case No. 06-0328, the Petition filed by Petitioner, Ronald M. Brooke, challenging the 2005-2015 CMP Amendment was not timely filed; (2) the 2005-2015 CMP Amendment and the 2005 Stadium Amendment comply with the requirements of Section 1013.30, Florida Statutes, and Florida Administrative Code Chapter 6C-21; (3) as to Case No. 06-0327, the Amended Verified Petition be dismissed; (4) as to Case No. 06-0328, the Amended Verified Petition be dismissed; and (5) Respondent's Motion for Attorney's Fees and Costs in both cases be denied. DONE AND ENTERED this 4th day of April, 2006, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 4th day of April, 2006.
The Issue Whether Petitioner is entitled to Proximity Tie-Breaker points for its designated public bus transfer stop and library.
Findings Of Fact The parties stipulated to the following facts as reflected in paragraphs 1 through 13, below. Petitioner is a Florida for-profit limited liability company with its address at 3 East Stow Road, Suite 100, Marlton, New Jersey 08053, and is in the business of providing affordable rental housing units in the State of Florida. Florida Housing is a public corporation, with its address at 227 North Bronough Street, Suite 5000, Tallahassee, Florida 32310, organized to provide and promote the public welfare by administering the governmental function of financing and refinancing housing and related facilities in the State of Florida. § 420.504, Fla. Stat. (2011).1/ Florida Housing administers various affordable housing programs including the following: Housing Credit Program (HC) pursuant to section 42 of the Internal Revenue Code and section 420.5099, Florida Statutes, under which Florida Housing is designated as the Housing Credit agency for the State of Florida within the meaning of section 42(h)(7)(A) of the Internal Revenue Code, and Florida Administrative Code Rule 67-48; and HOME Investments Partnerships Program (HOME) pursuant to section 420.5089, Florida Statutes, and Florida Administrative Code Rule 67-48. The 2011 Universal Cycle Application, through which affordable housing developers apply for funding under the above-described affordable housing programs administered by Florida Housing, together with Instructions and Forms, comprise the Universal Application Package or UA1016 (Rev. 2-11), adopted and incorporated by Florida Administrative Code Rule 67-48.004(1)(a). Because the demand for HC and HOME funding exceeds that which is available under the HC program and HOME program, respectively, qualified affordable housing developments must compete for this funding. To assess the relative merits of proposed developments, Florida Housing has established a competitive application process known as the Universal Cycle pursuant to Florida Administrative Code Rule 67-48. Specifically, Florida Housing's application process for the 2011 Universal Cycle, as set forth in Florida Administrative Code Rules 67-48.001 through 67-48.005, involves the following: The publication and adoption by rule of a "Universal Application Package," which applicants use to apply for funding under the HC and HOME programs administered by Florida Housing; The completion and submission of applications by developers; Florida Housing's preliminary scoring of applications (preliminary scoring summary); An initial round of administrative challenges in which an applicant may take issue with Florida Housing's scoring of another application by filing a Notice of Possible Scoring Error ("NOPSE"); Florida Housing's consideration of the NOPSEs submitted, with notice (NOPSE scoring summary) to applicants of any resulting change in their preliminary scores; An opportunity for the applicant to submit additional materials to Florida Housing to "cure" any items for which the applicant was deemed to have failed to satisfy threshold or received less than the maximum score; A second round of administrative challenges whereby an applicant may raise scoring issues arising from another applicant's cure materials by filing a Notice of Alleged Deficiency ("NOAD"); Florida Housing's consideration of the NOADs submitted, with notice (final scoring summary) to applicants of any resulting change in their scores. An opportunity for applicants to challenge, by informal or formal administrative proceedings, Florida Housing's evaluation of any item in their own application for which the applicant was deemed to have failed to satisfy threshold or received less than the maximum score2/; Final scores, ranking of applications, and award of funding to successful applicants, including those who successfully appeal the adverse scoring of their application; and An opportunity for applicants to challenge, by informal or formal administrative proceedings, Florida Housings final scoring and ranking of competing applications where such scoring and ranking resulted in a denial of Florida Housing funding to the challenging applicant. Petitioner timely submitted its application for financing in Florida Housing's 2011 Universal Cycle. Petitioner, pursuant to Application No. 2011-201C, applied for $1,190,000.00 in annual federal tax credits to help finance the development of its project, a 73-unit apartment complex in Sarasota, Florida, known as Janie's Garden Phase 3.3/ As part of its application, Petitioner submitted its 2011 Universal Cycle-Surveyor Certification for Competitive HC Applications Form as Exhibit 25 (Surveyor Form). In its review and score of Petitioner's application dated February 22, 2012 ("The NOPSE score"), Florida Housing identified certain deficiencies, including a NOPSE concerning the Public Bus Transfer Stop/Public Bus Rapid Transit Stop which provides as follows: Evidence provided in a NOPSE indicates that the Public Bus Transfer Stop/Public Bus Rapid Transit Stop listed on the Surveyor Certification for Competitive HC Applications form is neither a location at which passengers may access at least three routes of public transportation via buses nor a location where passengers may access at least one bus that travels at some point during the route in a lane or corridor that is exclusively used by buses and that has scheduled stops every 20 minutes during the hours of 7am to 9am and 4pm to 6pm Monday- Friday. Petitioner timely submitted cures in response to these scoring deficiencies, including a letter from Anthony Beckford, general manager, Sarasota County, dated January 26, 2012; and a new Surveyor Form as a replacement for the Surveyor Form submitted as Exhibit 25 with Petitioner's application. Following the submission of cures and after a review of NOADs, Florida Housing scored Petitioner's application and issued its final scoring summary dated March 27, 2012, in which Florida Housing concluded that Petitioner met all threshold requirements and awarded Petitioner 27 Proximity Tie-Breaker points.4/ Specifically, Florida Housing awarded 27 Proximity Tie- Breaker points out of a possible 37 points for the following reasons: 1P The Applicant attempted to cure item 1P by providing information demonstrating that there was an additional bus route added prior to the application deadline; however, the cure is deficient because this route was "ready for implementation on December 5, 2011" and not available for use by the general public as of application deadline as required. 1P Applicant attempted to cure item 1P by providing information demonstrating that there was an additional bus route added prior to the application deadline; however the cure is deficient because the schedule for this route will not have hourly stops between the hours of 4pm and 6pm Monday- Friday as required. The Proximity Tie-Breaker that Petitioner would be entitled to receive for the Transit Services Public Bus Transfer Stop is six points; and for a public library is one and three quarters of a point. Petitioner timely filed its Petition contesting Florida Housing's scoring of its application, whereupon Florida Housing forwarded the matter to the Division of Administrative Hearings. December 6, 2011, the date that Petitioner submitted its application, was the deadline for applicants to submit the 2011 Universal Cycle Application. In its final scoring summary dated March 27, 2012, Florida Housing scored Petitioner's application such that for the proximity of its proposed development to the Verman Kimbrough Memorial Library (Kimbrough Library), Petitioner received zero Proximity Tie-Breaker points. Florida Housing did not award any such points to Petitioner because in its opinion, the Kimbrough Library does not meet Florida Housing's definition for a public library in that the library's holdings are not "available for the public to borrow at no cost." Petitioner disputes this contention and asserts that the public can borrow materials at no cost from the library as long as the public uses the materials while in the library. Florida Housing's 2011 Universal Application Instructions provide as follows: Public Library-–For purposes of proximity tie-breaker points, a Public Library means a library that is part of a city, county, or regional public library system or cooperative and has materials available for the public to borrow at no cost. The Ringling College of Art and Design is located in Sarasota, Florida, and has as a part of its campus the Kimbrough Library. The Kimbrough Library is a part of the Tampa Bay consortium of libraries. The primary purpose of the Kimbrough Library is to support the academic programs at the Ringling College of Art and Design. In furtherance of this purpose, the Kimbrough Library has, as a significant portion of its holdings, items such as art history books and large folios comprising artist representations, paintings, and the like. The majority of the periodicals in the library, such as Art News and Architectural Digest, are related in some way to the visual arts. The Kimbrough Library subscribes to various newspapers and has Wi-Fi and computers available for use by its patrons. For purposes of the instant dispute, the Kimbrough Library has three classes of patrons: Paying Members, Non- Members, and Regular Members. Paying Members are individuals that pay an annual fee of $50.00 to the Ringling College Library Association. A benefit of being a Paying Member is that individuals in this class are issued library cards that allow them to check out materials from the library. Non-Members are able to enter the library, without cost, during its hours of operation and are allowed to peruse the library's holdings and access the library's computers and Wi-Fi. As Non-Members are not issued library cards, these individuals are not allowed to check-out or otherwise remove materials from the library. Library materials are available to Non-Members for in-library use only. Regular Members are current students, alumni and employees of the Ringling College of Art and Design, and certain high school teachers from Sarasota County and Manatee County, respectively. The Kimbrough Library issues library cards to its Regular Members, and these cards allow them to check-out materials from the library. The library has on its website a list of frequently asked questions and responses thereto. The following excerpts are instructive: Q: Do alumni have borrowing privilages [sic]? A: Graduates of Ringling College of Art and Design have perpetual borrowing privileges at Kimbrough Library. They may check out up to 15 items at a time, excluding CDs and slides, and use many of the online subscription databases when visiting the Library. Register at the Circulation Desk for a library card. (Emphasis supplied). Q: Can members of the community use the library? A: Yes, for research and browsing. If you also wish to check out materials, you may become a member of the Ringling College Library Association. Individual memberships are $50.00 per year. High school arts and humanities teachers in Sarasota and Manatee counties may register for a library card at no charge. Q: How long can books be checked out? A: Three weeks for students and Ringling College Library Association Members. Six weeks for faculty and staff. On or about February 29, 2012, Tracy Wagner, who works for the Ringling College of Art and Design as vice-president of Finance and Administration, submitted to Florida Housing a letter regarding "FHFC Proximity Scoring-Library-Verman Kimbrough Memorial Library." Ms. Wagner, in her capacity as vice-president of Finance and Administration, does not have any oversight responsibilities for the library, but she does work with the library director "on maintenance and construction projects." By her own admission, Ms. Wagner is only "somewhat" familiar with the operations of the library. According to Ms. Wagner, the Kimbrough Library satisfies Florida Housing's definition of a public library in relevant part, because the library allows "area residents to use the library free of charge which includes the use of [the] library computers[,] as well as the ability to borrow any of [the] books for use within the library." Ms. Wagner's opinion is belied by the library's response to frequently asked questions, which treat as synonymous the acts of "borrowing" and "checking out" materials from the library. The library's response to frequently asked questions make clear that in-library "research and browsing" are different from the privilege of being able to borrow materials from the library. The library's responses to frequently asked questions, as opposed to the assertions by Ms. Wagner, are a competent and credible source for information about the operational aspects of the Kimbrough Library. For the reasons stated in stipulated paragraphs 8 and 11 above, Respondent, in its final scoring of Petitioner's application, did not award Petitioner any Proximity Tie-Breaker points for the public bus transfer stop identified by Petitioner in its application. The bus transfer stop in question is at or near the intersection of Orange Avenue and 23rd Street in Sarasota, Florida. It is undisputed that as of December 6, 2011, passengers using the bus transfer stop at the intersection of Orange Avenue and 23rd Street were able to ride buses servicing routes seven (Newtown-NE) and eight (Newtown-US 301). It is also undisputed that on December 5, 2011, Sarasota County Transportation Authority (SCTA), approved route 71 (Booker HS) for future operation. Once route 71 becomes operational around September 2012, it will have scheduled stops at the intersection of Orange Avenue and 23rd Street and will have, Monday through Friday, passenger pick-up and drop-off during the following times for inbound bus service: 7:58 a.m.; 8:28 a.m.; 5:28 p.m.; and 5:58 p.m. Outbound passenger pick-up and drop-off times at this location will be as follows: 7:47 a.m.; 8:17 a.m.; 5:17 a.m.; and 5:47 p.m. On or about April 19, 2012, Ms. Sarah Blanchard, who works at Sarasota County Area Transit as a senior transit planning manager, submitted on behalf of Petitioner a letter to Florida Housing. Ms. Blanchard's missive to Florida Housing states in part as follows: In terms of meeting the FHFC requirements during the p.m. period indicated for us as 4 to 6 p.m., the average headway, as defined by SCAT, is one hour, which equates to "hourly." That number is derived by dividing the period (two hours) by the number of directional trips, two, to obtain the average one hour headway.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Florida Housing Finance Corporation, enter a final order denying Petitioner, Janie Poe Associates 3 LLC's, Petition for Review. DONE AND ENTERED this 6th day of July, 2012, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of July, 2012.
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.
Findings Of Fact Background And Overview Respondent was first employed by Petitioner, School Board Of Palm Beach County, Florida (the "School Board"), in 1964 as a teacher. Respondent was promoted to principal in 1971, Assistant Superintendent for the School Board in 1978, and Associate Superintendent of Schools for Planning and Operations on July 1, 1984. Respondent was one of three Associate Superintendents in the Palm Beach County school district. There was also an Associate Superintendent of Instruction and an Associate Superintendent of Administration. Each Associate Superintendent reported to the Deputy Director who reported to the Superintendent. Respondent served as Associate Superintendent of Planning and Operations until he was demoted to principal on November 5, 1991. Respondent served under an annual contract as an Associate Superintendent and maintains a continuing contract as a teacher. While employed as an Associate Superintendent, Respondent never received notice of an allegation of incompetent conduct, was never disciplined, and never received a negative performance evaluation prior to this proceeding. In the Summer of 1991, Respondent was a finalist for the position of Superintendent. The position of Associate Superintendent of Planning and Operations was subsequently abolished effective July 1, 1992. Planning And Operations: Organization And Regular Duties The organization of Planning and Operations has changed in specific regards during the years Respondent was its Associate Superintendent. 1/ For the purposes of this proceeding, however, Planning and Operations employed approximately 1,500 people and was organized and operated in three subdivisions: Growth Management; Facilities Planning and Management; and Personnel Relations. Personnel Relations is not at issue in this proceeding. 2/ Growth Management responsibilities included: identifying school district demographics; determining racial balance; and site acquisition for development of schools and other facilities. Facilities Planning and Management responsibilities included: building new schools; renovations; improvements; and maintenance. Each of the three subdivisions of Planning and Operations was supervised directly by an Assistant Superintendent. The Assistant Superintendents supervised one comptroller and nine directors. Directors had direct responsibility for assistant directors. Assistant directors supervised first-line managers. First-line managers supervised numerous employees who regularly worked on: major school center projects; new school construction; facility design and contract services; facility operations; maintenance and renovations; personnel administration; information management; recruitment and selection; and human resources. Additional Duties In addition to their regular duties, Respondent and other senior administrative supervisors were required by Mr. Thomas Mills, the former Superintendent, to promote and solicit the involvement of members of the local business community in the Palm Beach County school system. The school system faced student overcrowding, a lack of materials, a lack of adequate funding, and a rising drop out rate. Members of the business community were recruited to help raise money for operating expenses and to support a bond issue for which the School Board sought voter approval in 1986. Many members of the local business community were also vendors to the School Board. Respondent was directed by former Superintendent Mills and Dr. James Daniels, the Deputy Superintendent, to contact and network with as many members of the business community as possible. Such activities were considered by former Superintendent Mills to be a high priority. Respondent complied with the directives of the former Superintendent and Deputy Superintendent. The efforts of Respondent and other senior managers proved successful. The business community in Palm Beach County raised funds to supplement the operating expenses of the school system and supported a bond issue for construction of new facilities and capital improvements to existing facilities. In 1986, the majority of registered voters in Palm Beach County approved a Special Referendum authorizing a $678 million bond issue for the construction of educational facilities in the Palm Beach County School District. The School Board established a five year plan for the construction of educational and ancillary facilities (the "five year construction plan"). A portion of the bond money was allocated to capital improvement projects to renovate or remodel existing facilities. Planning and Operations supervised all bond issue projects, including capital improvement projects. In the 1986- 1987 school year, such projects, including capital improvement projects, were supervised by the division of New School Construction. In the Fall of 1987, supervision of capital improvements was transferred to Maintenance and Renovations. Maintenance and Renovations was also organized within Planning and Operations. Approximately 39 new schools were constructed in Palm Beach County while Respondent was Associate Superintendent of Planning and Operations. The total budget for construction of new schools was approximately $550 million. Thousands of construction projects, renovations, and improvement or maintenance projects were performed by Planning and Operations. Approximately $317 million of the authorized bond issue was issued from 1987 through 1989. In addition to the construction of new schools, the School Board approved a plan in 1985 to acquire land and construct four ancillary facilities. The ancillary facilities included a new administrative complex, a central warehouse, and a maintenance and operations facility. Planning and Operations supervised the site acquisition and construction of all four ancillary facilities. Deficiencies In Planning And Operations Deficiencies in the organization and operation of Planning and Operations were well known to both the School Board and Planning and Operations personnel. They were pandemic deficiencies that Respondent could not correct without the approval and financial support of the School Board and the technical assistance of experts. 3/ The School Board retained an outside consultant, Price Waterhouse, to study deficiencies in Planning and Operations and to formulate an improvement program. The improvement program was to be developed in three phases. The first phase identified deficiencies within Planning and Operations on the basis of discussions with department personnel and outside specialists. The second phase would have focused on verifying and prioritizing problems and their impacts. The third phase would have formulated a program for improvement of Planning and Operations. Deficiencies in Facilities Planning and Management were identified in interviews conducted by the accounting firm of Price Waterhouse with directors, assistant directors, and first- line managers. In 1987, Price Waterhouse issued a draft report to the School Board describing the deficiencies found in Facilities Planning and Management (the "Price Waterhouse Report"). 4/ The School Board determined that the Price Waterhouse Report merely told the School Board what was already common knowledge and that further expenditures on a program for improvement with Price Waterhouse would be a waste of money. The School Board knew of the deficiencies in Planning and Operations. The School Board knew that those deficiencies created impediments to the supervision of Planning and Operations. Known deficiencies within Facilities Planning and Management involved: financial procedures and controls; staff performance, including personnel and control; planning of operations and projects; contract administration; construction administration; and organization structure. Deficiencies in financial procedures resulted in budgeting without adequate preparation, historical data, timing, and coordination between departments. Poor cost and schedule accounting for capital improvements, maintenance, and operations made it difficult to capture and report cost information in sufficient detail and in a timely manner. Poor cost controls directly affected the control of operations, decisions to perform work by in-house staff or contractors, and the value received for money spent. Adequate project management tools and policies were not in place to contain costs and adhere to schedules for maintenance, capital improvements, and new construction. Payment of suppliers, contractors, architects, and other vendors was slow, frustrated vendors, and made them reluctant to do work for the School Board. There were deficiencies in staff performance, personnel, and control. Productivity appeared to be low. There was a lack of performance measurement and reporting mechanisms in place to accurately assess productivity. Productivity was significantly affected by: inadequate work planning and coordination; the condition and availability of equipment and materials; logistics; and geographic constraints. Many employees were uncertain as to their responsibilities and corresponding authority, particularly at the first-line manager level. Uncertainty over responsibility and authority undermined the effectiveness of first-line managers dealing with vendors, contractors, and architects. Staffing levels and management span were not adequate to maintain existing facilities and operations, control personnel growth, and prevent duplication of field personnel skills between maintenance and capital improvements. Support resources were weak in technical expertise, administrative staff, reference materials, and computer aided design equipment. Capital improvement, new construction, and maintenance tasks were frequently not scheduled in sufficient accuracy and detail to foresee and anticipate potential problems. Frequent schedule slippage allowed contractors less time to complete construction and meet schedules; adversely affecting productivity, project costs, and the ability to plan for and manage project issues and achieve targeted completion dates. Shortages of materials and supplies often caused project delays. Coordination of work between and within departments failed to determine the optimal sequence in which work was to be performed to maximize the utilization of trade employees and avoid conflicts and rework. Deficiencies in contract administration led to lack of clarification in the responsibilities, requirements, and expectations of parties to contracts. Contract documents and conditions were too vague and resulted in frequent disputes, delays, and occasional change orders. To avoid delays caused by change orders, contractors sometime proceeded without proper authorization at their own risk. The definition of authority and responsibility and the guidelines for quality control and inspection for in-house employees and contractors needed to be improved. Such deficiencies in construction administration resulted in project delays, poor construction, and higher facility life cycle costs. A lack of consistency in procedures and policies for project management exacerbated the deficiencies in construction administration. Deficiencies in organization structure directly affected problems in other areas of Planning and Operations. Continuity of work was lacking on new construction. Project managers changed when responsibility passed from one division to the next; resulting in a start-stop effect on the project and a loss of specific project knowledge. Improvement was needed in communications between and within departments and in upper management support of lower management authority. There was a need for a long range organization structure and staffing strategy which addressed alternatives such as internal staffing and contracted services. The presence of deficiencies described in the Price Waterhouse Report in 1987 was confirmed in 1993 in a Report On Audit Of The Palm Beach County District School Board For The Fiscal Year Ended June 30, 1992 Dated: June 24, 1993 issued by the State of Florida, Office Of The Auditor General (the "Auditor General's Report"). The Auditor General's Report found that deficiencies similar to those described in the Price Waterhouse Report for Facilities Planning and Management also existed in Growth Management. Problems reported in the Price Waterhouse Report and in the Auditor General's Report described a deficient organizational and operational system in which the School Board required Respondent to supervise unprecedented growth and activity. Respondent was required to: supervise a $550 million construction plan involving thousands of projects and four ancillary facilities; 5/ promote involvement of the business community in the school system; and perform the duties he was otherwise required to perform in the absence of the five year construction plan established by the School Board and associated promotional responsibilities. In 1987, the Price Waterhouse Report stated that supervisors and assistant directors were stretched very thin, and their roles needed to be more clearly defined. Communication between and within departments and from directors and similar supervisors was poor. 6/ Many of the deficiencies described in the Price Waterhouse Report and the Auditor General's Report created impediments to Respondent's supervision of Planning and Operations irrespective of his additional duties associated with the five year construction plan. Petitioners' Allegations Petitioners' allegations against Respondent are based on two separate investigations conducted by Petitioners. 7/ Petitioners' allegations involve: acquisition of a site for a central warehouse for $3.161 million (the "District Warehouse Site"); acquisition of a site for a west bus compound for $750,000 (the "West Bus Compound"); construction of an addition to a new maintenance and operations building on Summit Boulevard in West Palm Beach for Maintenance and Renovations and Facility Operations and construction of an addition to a north maintenance building (the "Summit Facility"); requests for additional services on form G-604 (the "G-604" issue); acceptance of gratuities from members of the business community who were also vendors of the School Board; and evaluation of two employees. Petitioners' allegations of incompetency primarily involve the five year construction plan and ancillary facilities. Few of the alleged acts of incompetence involve other aspects of Respondent's job performance from July 1, 1984, through November 5, 1991. The District Warehouse Site The School Board determined in 1985 that a need existed for a centralized warehouse site in Palm Beach County. 8/ The School Board determined that approximately 10 acres would be adequate. Since the value of land in Palm Beach County was appreciating, the School Board also approved the policy of former Superintendent Mills that encouraged the acquisition of land for future expansion if the land could be acquired at a desirable price, i.e., "warehousing" land for future use. Respondent had advocated a decentralized warehouse system in which separate warehouse functions would be carried out in various regions of Palm Beach County. Others in Planning and Operations supported the concept of a centralized warehouse site. The centralized warehouse concept was accepted and approved by former Superintendent Mills and the School Board. On October 11, 1989, the School Board purchased approximately 16 acres of real property as a site for a centralized district warehouse. The property was purchased for $3.161 million from KEI Palm Beach Center, Ltd. ("KEI"), a limited partnership in which Mr. William Knight was a limited partner and Knight Enterprises, Inc., a corporation controlled by Mr. William Knight, was the general partner (the "Knight property"). Respondent did not act incompetently and did not violate any statute, rule, policy, instruction, or directive, or circumvent normal acquisition procedures (collectively referred to hereinafter as "applicable standards") with regard to the evaluation and purchase of the Knight property. Respondent neither proposed nor advocated the purchase of a particular warehouse site. Respondent did not propose or advocate the identification, evaluation, selection, and purchase of the Knight property. Respondent showed no favoritism to Mr. William Knight, to his son, Mr. Jim Knight, or to any entity owned by the Knights. Respondent committed no act or omission which impaired his business judgment, compromised his independence, or which was otherwise improper in connection with the acquisition of the District Warehouse Site. Initial Site Selection And Evaluation Prior to the acquisition of the Knight property, the School Board attempted to acquire property owned by Palm Beach County and known as Section 6. Negotiations for the acquisition of Section 6 terminated when Section 6 became unavailable. A site search for the District Warehouse property was conducted by Growth Management. Ten separate sites, including the Knight property, were initially identified and reviewed by a site acquisition team within Growth Management. The site acquisition team was headed by Mr. William Hukill, Assistant Superintendent for Growth Management. The site acquisition team also included Mr. Robert Skakandy, a real estate acquisition coordinator in Growth Management, and Mr. David Williams, Assistant Director of Growth Management. Respondent was not significantly involved in identifying the 10 properties considered by the site acquisition team, including the Knight property. Each property was placed on the list by the site acquisition team because it was within or proximate to the geographical area preferred by the site acquisition team or possessed other targeted location characteristics. 9/ Site selection procedures typically did not involve Respondent. Site selection procedures were described in detail in the Auditor General's Report: . . . upon identification of potential sites, the sites were evaluated by the District's Growth Management Center. A description of each site was presented to the Assistant Superintendent, Growth Management and to the Assistant Director, Growth Management for their review, after which the descriptions were . . . presented to the Superintendent. Following the Superintendent's review, the preliminary site investigations and site descriptions with the Superintendent's recommendation were to be presented to the School Board for their review and approval. (emphasis supplied) Auditor General's Report at 63. Growth Management first considered the Knight property in August, 1988. Mr. Jim Knight communicated the availability of the Knight property to Ms. Linda Howell, a real estate coordinator in Growth Management. Ms. Howell and Mr. Jim Knight conducted further discussions. Ms. Howell identified the Knight property as a potential site and relayed the site information to Mr. Skakandy. The site acquisition team reduced the list of ten sites to a list of three final sites. The Knight property was not one of the three final sites selected. The three final sites were all less expensive than the Knight property. The three final sites were the Riviera Beach site, the Boyton Beach site, and the Farmer's Market site. Feasibility problems developed with each of the three final sites. The Riviera Beach site was sold to another party. The Boyton Beach site was objected to by other staff not on the site acquisition team. It was 15-20 miles south of the center of the county and failed the express criteria for a "central" warehouse. Environmental problems and costs associated with the disposal of building materials caused Maintenance and Renovations to recommend against purchase of the Farmer's Market site. 10/ Reconsideration Of Knight Property On or about January 11, 1989, former Superintendent Mills sent a memorandum to Mr. Hukill indicating that Mr. William Knight had called the Superintendent to express his interest in having the Knight property reconsidered for the District Warehouse Site. Respondent received a copy of that memorandum but was not otherwise involved significantly in the reconsideration of the Knight property. On or about January 20, 1989, Mr. Hukill sent a letter to the former Superintendent indicating that the Knight property was still under consideration and that the Knight property location was quite good under the circumstances. Mr. Hukill indicated that appraisals had been ordered and that a site recommendation would be forthcoming. 11/ The Knight property was reconsidered in accordance with procedures customarily followed in Growth Management. There was no formalized procedure followed in Growth Management for the evaluation of property for site acquisition. Sites were discussed in a free form fashion. Except for a recommendation of the final site selected, written records for recommendations on specific properties were not customarily prepared by staff in Growth Management. 12/ Mr. Hukill made the ultimate decision to add or drop sites from consideration. Acquisition sites were added or deleted from site acquisition lists without notifying Respondent. The Knight property was evaluated by the entire staff in Growth Management. The evaluation of the Knight property included a review of environmental issues, utilities, zoning, and road use. Mr. Jim Knight had more than 20 meetings with Growth Management staff including Mr. Hukill, Mr. Skakandy, and Mr. Williams. Respondent was not significantly involved in those discussions. 13/ The Knight property was recommended by staff because of its suitability for the District Warehouse and because of the unavailability or unsuitability of the first three sites originally selected by the site acquisition team. The Knight property was located in almost the exact center of the county. It was also located on Southern Boulevard, a roadway that runs directly to western communities in Palm Beach County where many new schools were scheduled for construction. Respondent properly relied on staff recommendations for the Knight property in accordance with his customary practice. At no time prior to the time the property was acquired did any employee within Growth Management state to Respondent that the Knight property was not a suitable site or that the purchase of the Knight property would be detrimental to the School Board. Mr. Hukill did not sign the written recommendation for the Knight property. The reason for his refusal, however, had nothing to do with the suitability of the Knight property for the District Warehouse. Mr. Hukill believed, as a philosophical matter, that the School Board should spend its money on schools rather than on additional warehouse sites. Mr. Hukill, in effect, objected to a determination made by the School Board in 1985. Mr. Hukill agreed with the recommendation that the Knight property was suitable based on the marketplace, location, and ease of distribution for servicing schools. Respondent neither identified nor advocated the Knight property. Respondent had no conversations with either Mr. William Knight or Mr. Jim Knight concerning the evaluation of the Knight property as a site for the District Warehouse except as previously described. Except for the price paid for the Knight property, Respondent's involvement in the acquisition of the Knight property was limited to a review of staff recommendations and the acceptance of those recommendations. Additional Acreage The initial search for a District Warehouse site focused on the acquisition of 10 acres of property. However, the Knight property included 16 acres. The additional acreage was purchased to overcome access problems that would have occurred if only 10 acres had been purchased. Unanticipated problems in site selection was one of the deficiencies known to the School Board and discussed in the Price Waterhouse Report in 1987. Engineering involvement frequently did not occur early enough in site acquisition. As a result, sites selected by the site acquisition team required unanticipated expenses, and the full cost of the project was not properly assessed. 14/ The decision to purchase additional acreage was not made by Respondent. Former Superintendent Mills wanted the additional acreage to accommodate future expansion for office space on the warehouse site. The former Superintendent believed that a larger site was desirable to properly accommodate future expansion needs and directed the purchase of the additional acreage. The issue of whether to increase the site for the District Warehouse from 10 acres to 16 acres was discussed at a Superintendent's staff meeting. The former Superintendent, the School Board attorney, Respondent, and a dozen other members of the former Superintendent's staff attended the meeting and participated in the discussion. The decision and recommendation to purchase the additional acreage was made by the former Superintendent. Purchase Price The final purchase price for the Knight property was reasonable and beneficial for the School Board. Respondent was responsible for the final purchase price. Two separate appraisals for the Knight property were obtained by Growth Management in accordance with its customary practice and applicable law. 15/ Respondent did not select the appraisers. They were selected by Mr. Skakandy with the approval of Mr. Williams. The appraisers were qualified and had been used many times in the past by Planning and Operations. The two appraisals for the Knight property differed by $1.00 a square foot. The higher appraisal was for $5.50 a square foot. The lower appraisal was for $4.50 a square foot. 16/ Respondent refused to accept Mr. William Knight's offer to split the difference between the two appraisals and insisted on a sales price of $4.42 a square foot. The price paid for the Knight property was reasonable and less than the lowest appraised value. Contract Negotiations Respondent was not involved in contract negotiations for the Knight property and did not dictate any of the terms of the contract for the purchase of the Knight property; except the final purchase price discussed in the preceding paragraph. Site acquisition personnel typically negotiated site acquisition contracts in concert with the School Board attorney. Site acquisition personnel did not customarily report the status of contract negotiations to Respondent. No established procedure required such reports. Contract negotiations for the acquisition of the Knight property were carried out entirely by site acquisition personnel within Growth Management and Mr. Robert Rosillo, the School Board attorney. Negotiations by staff and the School Board attorney for the Knight property were within the scope of normal functions for site acquisition. The School Board attorney did not confer with Respondent during the three months in which contract negotiations for the Knight property were conducted. Respondent never gave the School Board any direction or other information concerning the acquisition of the Knight property. It is the responsibility of the School Board attorney and technical staff in Growth Management to draw acquisition contracts, address zoning requirements, and determine contingencies for closing. Any problems associated with the final contract for purchase of the Knight property were the responsibility of the School Board attorney and staff negotiators. Road Improvements: Allocation Of Costs Between The Parties The contract for the Knight property addressed road improvements, right-of-way, and relocation measures necessary for the use of the property. Engineering drawings reflected the right-of-way issues, the need to relocate water and sewer lines and a lift station, and the need for road improvements. The parties to the contract agreed to share the cost of road improvements proportionally. The contract required the seller to place $70,000 in a separate escrow account to be used to fund the necessary road improvements. While Petitioners now complain that the amount escrowed by the seller was inadequate, the terms of the contract were prepared by the School Board attorney and recommended by Growth Management staff in accordance with long standing practice. In 1987, The Price Waterhouse Report stated that contract documents did not delineate specific responsibilities. The result was confusion, disagreements, and additional costs to the School Board or outside parties. 17/ Adverse impacts from the purchase of the Knight property on October 11, 1989, reflected deficiencies reported in the Price Waterhouse Report in 1987. Those deficiencies were well known to the School Board at least two years before the acquisition of the Knight Property. The School Board chose not to expend additional funds on a program of improvement suggested by Price Waterhouse. Financial Ability Of Seller To Comply With Repurchase Option The contract for the Knight property contained a provision which gives the School Board the right to require the seller to repurchase the property if conditions pertaining to zoning are not satisfied (the "repurchase option"). The repurchase option was drafted by the School Board attorney. A decision not to enforce the repurchase option was made by the School Board, the School Board attorney, and the former Superintendent. If the School Board had elected not to proceed with closing, the contract afforded the seller to right to sue for specific performance. A foreclosure suit was filed against the Knight property a few days prior to the closing on October 11, 1989. Mr. Rosillo discussed the impact of the foreclosure suit on the purchase with former Superintendent Mills. The issue was not discussed with Respondent. The contract did not require the seller to evidence its financial ability to perform the terms of the contract. Nor did the contract require Mr. William Knight to personally guarantee the obligation of the seller under the repurchase option. Temporal Considerations The time required for the evaluation and purchase of the Knight property was reasonable and adequate. The transaction was not "rushed." The evaluation and purchase of the Knight property required approximately 14 months to complete. Once the decision to purchase the property was made, approximately three months were required to finalize the terms of the contract and close the transaction. Even if the evaluation and purchase of the Knight property was rushed, Respondent did not act as an impetus to rush the transaction. Respondent was not significantly involved in the identification, evaluation, and purchase of the Knight property except for the final purchase price. Mr. Jim Knight actively negotiated the transaction with Mr. Rosillo, Mr. Hukill, Mr. Williams, and Mr. Skakandy. The entire transaction was discussed fairly and adequately by Growth Management staff and the School Board attorney. Respondent did not propose or advocate the Knight property. Respondent did not negotiate the terms of the contract to purchase the Knight property except for the final purchase price. Respondent did not decide whether to close the transaction or whether to enforce the repurchase option. Bifurcated Funding For Land Acquisition And Construction The fact that the Knight property was acquired prior to the time that money was available to construct the District Warehouse does not make Respondent incompetent. Property was customarily purchased first and a building constructed out of budget appropriations in subsequent years. In 1987, The Price Waterhouse Report included such practices in its list of deficiencies. The capital budgeting process lacked sufficient coordination, timing, and input. Adequate cost accounting tools were not available. Existing reports lacked sufficient detail, accuracy, and timeliness. Capital improvement funding sources were not clearly identified. The fact that priorities for capital improvements were not easily or accurately tracked was a source of frustration for administrators including Respondent. 18/ Those deficiencies were known to the School Board prior to 1987. In 1987, the School Board chose not to pursue a program of improvement with Price Waterhouse. In 1993, the Auditor General's Report found that originally designated capital outlay moneys had been expended on projects, land purchases, and other purposes which were not contemplated in the 1986 school construction plan. Expenditures not contemplated in the five year construction plan included the District Warehouse Site. 19/ The notice of tax levy for capital improvements had not been prioritized within categories as required by Section 200.065(9)(a), Florida Statutes. Failure to prioritize the projects contributed to delays in undertaking some of the projects at issue. Furthermore, the School Board did not segregate and account for the proceeds and related expenditures of each respective year's levy. 20/ The decision to purchase the Knight property and rely on budget appropriations in subsequent years for construction was made by former Superintendent Mills. The former Superintendent's policy was to purchase land at a reasonable price if there was a future need for the property. Land values in Palm Beach County were appreciating rapidly. The money to construct the buildings on such properties typically came from budget appropriations in subsequent years. The Knight property was purchased for less than its lowest appraised value. 2.10 Gratuities And The Knight Property Respondent went fishing in 1986 and 1987 on Mr. William Knight's fishing boat in St. Thomas, U.S. Virgin Islands, and in Bimini, Bahama Islands. Respondent reported both fishing trips on his annual financial disclosure forms. The two fishing trips did not adversely affect Respondent's business judgment or create the appearance of impropriety. Respondent was not significantly involved in the acquisition of the Knight property in October, 1989. In 1986, Respondent accepted an invitation from Mr. Robert Howell, a member of the School Board at the time, to go fishing in St. Thomas. The invitation was made to Respondent through former Superintendent Mills. The former Superintendent joined Respondent on the fishing trip. Respondent had never met Mr. William Knight before that time. The fishing trip lasted two days. Respondent paid for his own transportation to St. Thomas. In 1987, Respondent and former Superintendent Mills accepted an invitation from Mr. William Knight to fish with their children in Bimini. The fishing trip lasted one day. The West Bus Compound On or about April 24, 1990, the School Board purchased property in Royal Palm Beach for $750,000 (the "West Bus Compound"). The property was purchased from Mr. John Bills. Site selection procedures typically did not involve Respondent. 21/ Respondent did not act incompetently or violate applicable standards with regard to the identification, evaluation, and purchase of the West Bus Compound. Respondent did not propose or advocate the West Bus Compound or the evaluation, selection, and purchase of the West Bus Compound. Respondent showed no favoritism to Mr. Bills, or any entity owned by Mr. Bills. Respondent committed no act or omission which impaired his judgment, compromised his independence, or which was otherwise improper in connection with the evaluation and acquisition of the West Bus Compound. The need for a site to service the western portion of Palm Beach County was identified by Mr. George Baker, the Director of Transportation. Transportation was a division of the Department of Administration. The Associate Superintendent of Administration was Dr. Henry Boekhoff. Respondent had no authority or responsibility over Transportation. The need for a site to service the western portion of Palm Beach County was uncontroverted. Due to westward population migration, several new schools were built in the western regions of the County. Mr. Baker determined that it was not cost effective to transport buses back and forth from compounds in the eastern portion of the County for maintenance and storage. Mr. Baker and Dr. Boekhoff determined that a West Bus Compound would result in significant savings in the operating budget. The need for a West Bus Compound was well known within the school district administration, including Growth Management. Mr. Baker had repeatedly stated to everyone "within earshot" that the need for a West Bus Compound was urgent. Mr. Baker identified a site location in Royal Palm Beach owned by Mr. Bills. Mr. Baker told Mr. Williams, who worked in Growth Management, that Transportation wanted the site owned by Mr. Bills for the West Bus Compound. Mr. Bills was trying to sell his property. Mr. Bills submitted a brochure on the property to Mr. Hukill and other staff in Growth Management. Mr. Hukill recommended the property owned by Mr. Bills to Respondent. Respondent discussed the site with former Superintendent Mills. At Mr. Hukill's request, the former Superintendent authorized Mr. Hukill to proceed with negotiations for the property owned by Mr. Bills. Respondent advised Mr. Williams of the availability of the property owned by Mr. Bills. Respondent instructed Mr. Skakandy to follow normal procedures regarding the West Bus Compound site. The West Bus Compound site was evaluated by Mr. Skakandy and Mr. Williams. They also negotiated the contract for acquisition. Such action on the part of Mr. Skakandy and Mr. Williams was consistent with customary practice within Growth Management and was within the scope of their regular duties and responsibilities. Two appraisals were obtained for the West Bus Compound. The higher appraisal was for $810,000. The lower appraisal was for $703,000. The property was purchased for $750,000. Respondent properly relied on the recommendations and advice of technical staff in Growth Management with respect to the acquisition of the West Bus Compound site. Respondent was never informed by anyone within Growth Management that there were any limitations on the use of the site. Certain zoning and easement requirements reduced the usable area for the site below that originally projected by Growth Management. Mr. Baker recommended the site even though the usable area was less than originally projected. Respondent was not acquainted with Mr. Bills at the time that the West Bus Compound was evaluated and acquired. Subsequently, however, Respondent developed a friendship with Mr. Bills. Respondent never showed any favoritism to Mr. Bills in connection with the West Bus Compound. The Summit Facility On July 1, 1989, employees of Maintenance and Renovations and employees of Facility Operations were housed in a leased facility at 3323 Belvedere Road, West Palm Beach, Florida (the "Belvedere" site). A new ancillary facility was nearing completion in the Fall of 1989. The new facility was located at 3300 Summit Boulevard in West Palm Beach (the "Summit Facility"). The Summit Facility included a second building known as the north building. The landlord for the Belvedere site exercised its rights under the lease to obtain use of the Belvedere site sooner than originally anticipated by the School Board. Electronics employees housed at the Belvedere site were moved to Northshore High School ("Northshore") on a temporary basis until the Summit Facility was completed. Residents of the neighborhood adjacent to Northshore complained to some members of the School Board about increased traffic. The School Board took the matter up at a public meeting during the Fall of 1989. Approval Of Day Laborers In Trades Sections At the public meeting conducted in the Fall of 1989, the School Board specifically authorized Mr. David Lord, Director of Maintenance, and former Superintendent Mills to use day- laborers in the trades sections 22/ to construct additions to buildings at the Summit Facility and to relocate electronics employees from Northshore to the Summit Facility by January 1, 1990. Mr. Lord and the former Superintendent discussed the matter with the School Board in detail. 23/ At the public meeting, the School Board instructed Mr. Lord to use whatever resources were available to him to make needed capital improvements to the Summit Facility by January 1, 1990. Confusion over when to use contractors or in-house personnel was one of the deficiencies discussed in the Price Waterhouse Report in 1987. Criteria for determining when to perform work on a contract basis and when to perform work in- house were not clearly established. This made planning difficult and increased project costs. 24/ Lack of communication and agreement between project managers and construction personnel concerning time and cost of in-house projects resulted in incorrect decisions concerning the desirability of building in-house or by contract, caused delays, cost overruns. 25/ Comparative cost analyses of in- house and contract maintenance construction were not available. 26/ In 1993, the Auditor General's Report found that established procedures did not provide reasonable safeguards to monitor day-labor projects to ensure that goods and labor were used only for authorized projects. The Auditor General's Report recommended that such procedures be established. 27/ Mr. Lord used day-laborers from his trades sections to make the capital improvements mandated by the School Board in accordance with the School Board's instructions. The work was begun in December, 1989, and completed in March, 1990. Code Violations In 1991, after considerable time for discussion and analysis among attorneys and technical staff within the Department of Education and Planning and Operations, it was determined that some additions to the Summit Facility were not in compliance with applicable safety code regulations. Respondent properly relied on Mr. Lord and Mr. Lord's immediate supervisor for technical compliance with applicable code provisions. Florida Administrative Code Chapter 6A-2 contains the State Uniform Building Code. Part A of Chapter 6A-2 ("Part A") applies in some circumstances, and Part B of Chapter 6A-2 ("Part B") applies in other circumstances. In July, 1990, officials of the Department of Education, Educational Facilities Department, in Fort Lauderdale, Florida, were invited to a demonstration of fire alarms at the Summit Facility. Mr. Russell Smith, Director of Facilities Design, determined that life/safety code violations existed in the two buildings at issue in the Summit Facility. Mr. Smith's determination of code violations was based on the assumption that Part A applied to the capital improvements at the Summit Facility. Mr. Lord had determined that Part B applied to the capital improvements. The capital improvements at the Summit Facility complied with the requirements of Part B but not Part A. Mr. Smith did not report the alleged code violations to Respondent until December, 1990. Respondent directed Mr. Smith to obtain a determination from the Department of Education. Mr. Smith pursued the matter with representatives of the Department of Education as well as Mr. Lord in Growth Management. Ms. Abbey Hairston, General Counsel for the School Board, concluded that there was a strong likelihood that Part B applied. Mr. Lord suggested that an outside consulting firm be retained to determine the applicability of Part A or Part B to the capital improvements at the Summit Facility. Respondent could not have detected the existence of the alleged code violations in the capital improvements to the Summit Facility. Respondent did not have the expertise to make such a determination. Respondent's regular duties and responsibilities did not require that Respondent maintain such expertise, conduct inspections for the purpose of detecting code violations, or correct code violations. Respondent did not act incompetently and did not violate applicable standards with regard to the capital improvements to the Summit Facility. Respondent did not propose or advocate that capital improvements be made to the Summit Facility in compliance with Part B. Respondent properly relied on his staff for technical compliance with applicable code requirements. When Respondent received notice of alleged code violations, Respondent acted in a competent and timely manner. In 1987, The Price Waterhouse Report discussed several deficiencies in staff performance, personnel, and control. The Price Waterhouse Report stated: Internal expertise is limited. Knowledge of specialized areas is limited, project quality suffers, life cycle costs are higher. . . . Training programs and budgets are insufficient, especially with respect to technical and safety training. Employees are not as efficient or effective as they could be. Knowledge of project managers is less than they feel is necessary Project managers are resistant to new management techniques. . . . Inadequate technical library. . . . Price Waterhouse Report, Staff Performance, Personnel And Control, Issues 5, 7, and 9, and corresponding Impacts. In 1993, the Auditor General's Report recommended that: . . . District personnel strengthen procedures to provide that, prior to occupancy in the future, the required approvals for occupancy are obtained to ensure that the facilities meet the prescribed safety standards. Auditor General's Report at 64. Tracking And Reporting Costs The computer codes and accounting approach used to track and report the cost of capital improvements to the Summit Facility complied with applicable standards. The computer codes and accounting approach recorded each transaction and were subject to separate retrieval in accordance with established procedures. Required object, fund, and function codes were used to document the expenditure of funds for the capital improvements to the Summit Facility. In 1987, the Price Waterhouse Report stated: Adequate cost accounting tools are not available. Existing reports lack sufficient detail, accuracy and timeliness. [There is] . . . [n]o ability to manage and control project cost. This results in true project cost being unknown and lack of problem identification on a timely basis. . . . Capital Improvement Requests are not easily or accurately tracked. Priorities are difficult to track and coordinate. This is a source of school administration frustration. . . . Project management tools are not available. Project cost containment suffers. Control and reporting is lacking. . . . Accountability is difficult to enforce. Price Waterhouse Report, Financial Procedures And Controls, Issues 4, 8, and 17, and corresponding Impacts. The day-labor hours billed for additions to the Summit Facility totaled approximately 6,373. In the three fiscal years from 1989 through 1992, approximately 566,853.75 day-labor hours were paid and approximately 454,701.75 were billed. Day-labor hours paid exceeded day-labor hours billed by approximately 112,152 hours. 28/ As the Price Waterhouse Report indicated in 1987, adequate cost accounting tools were not available. The cost accounting and reporting procedures that were in fact utilized for the additions to the Summit Facility complied with available cost accounting procedures. Respondent did not act incompetently and did not violate applicable standards in connection with the method used to track and report the cost of capital improvements to the Summit Facility. Respondent did not propose or advocate any particular accounting procedure. Respondent properly relied on technical staff to track and record the cost of capital improvements to the Summit Facility, and staff properly utilized the accounting tools available to them. Purchase Orders Purchase orders for mezzanine and modular offices were originated by staff in lower levels of Maintenance and Operations. The purchase orders were processed in accordance with normal procedure and approved by Ms. Betty Helser, Director of Purchasing. Ms. Helser was under the supervision of the Associate Superintendent of Administration and was not subject to the authority of Planning and Operations. Planning and Operations had no authority over Purchasing. Respondent did not participate in the purchase order approval process. Respondent was not responsible for that process. Several names were listed on the purchase orders as resource or contact persons in connection with the purchase order. Respondent was not one of those named. Funding Source For Capital Improvements Respondent did not act incompetently and did not violate applicable standards in connection with the funding source for capital projects, including acquisition of the District Warehouse site, the West Bus Compound, and additions to the Summit Facility. Funding sources for such projects were approved by the School Board. The funds used to pay for the District Warehouse, the West Bus Compound, and the Summit Facility were not misappropriated or misapplied. The School Board approved those capital projects and their corresponding budgets. The budget for each capital project provided for the transfer of capital outlay moneys to the general fund. 29/ Taxes had been levied for capital improvements pursuant to Section 236.25(2), Florida Statutes. Funds were transferred from this special millage money and not from general obligation bond money. Such transfers occurred in prior years and were consistent with customary procedure. Moreover, no funds were used for capital projects without the prior knowledge and consent of the School Board. Deficiencies in the budget reporting and control process impeded full consideration by the School Board of the impact of capital projects and budget transfers on the 1986 school construction plan. As a result, originally designated capital outlay moneys were expended on capital projects not contemplated in the 1986 school construction plan. Accordingly, some originally contemplated projects were not undertaken in the five year plan due to lack of funds. 30/ Deficiencies in financial processes and controls reported by Price Water House in 1987 and known to the School Board prior to that time created impediments to proper budgeting and resulted in poor budget quality. In 1987, the Price Waterhouse Report stated: Performance measurement (feedback) needed to assess and improve budget accuracy is lacking. Poor budget accuracy, control, and forecasting [results]. . . . The capital budgeting process lacks sufficient coordination, timing and department input. Budget priorities may not be sufficiently addressed and quality of actual budgets may suffer. Priorities for improvements are defined by construction and remodeling, but they may not be consistent with the school's needs. High priority projects may not be addressed on a timely basis. Price Waterhouse Report, Financial Procedures And Controls, Issues 2, 16, and corresponding Impacts; Price Waterhouse Report, Planning Of Operations And Projects, Issue 9 and corresponding Impact. Projects funded by the capital outlay millage derived under Section 236.25(2), Florida Statutes, were not prioritized within categories in the notice of tax levy as required by Section 200.065(9)(a). Failure to prioritize the projects to be funded by the capital outlay millage contributed to delays in undertaking some of the projects contemplated in the 1986 construction plan. In addition, the proceeds and related expenditures of each year's levy was not segregated and accounted for. 31/ Reports reviewed by the School Board consisted of monthly financial statements containing analyses of revenues by source of funds and analyses of expenditures by function. Status reports showed comparisons of projected revenues designated for the 1986 school construction plan with actual revenues received. Comparisons of projected construction costs anticipated in the five year construction plan with actual construction costs were not available. Like the notice of tax levy, available status reports did not prioritize projects within categories. The failure to prioritize projects and reporting inadequacies constituted some of the pandemic deficiencies known to the School Board prior to 1987 and did not result from Respondent's alleged incompetence. In 1993, the Auditor General's Report recommended several procedures for rectifying deficiencies in the budgeting process. First, quarterly status reports on capital projects should be revised to show the projected costs of projects, current expenditures, and the variances over or under projected costs. Second, proposed budget amendments should include an explanation of the possible effects on capital construction plans and operating budgets. Third, the ". . . Board and the Superintendent. . ." 32/ should develop written management reporting guidelines. Finally, the School Board should re- examine the remaining bond plan projects to ensure that they reflect current needs. G-604s: Requests For Additional Services Respondent did not act incompetently and did not violate applicable standards with regard to the use of requests for additional services or change orders on form G-604. Requests for additional professional services or for change orders are made on form G-604. Palm Beach County requires that such requests be reviewed by the School Board. Respondent never attempted to hide requests for architectural services from the School Board or to prevent their review by the School Board. In August of 1986, Mr. Hukill wrote a memorandum to Respondent requesting that directors be allowed to review and approve appropriate requests for additional services in an amount no greater than $20,000 per request and then submit the G-604 to the School Board for subsequent review. Respondent approved the procedure requested by Mr. Hukill. Two weeks later, Mr. Larry Mione, Contract Administrator, erroneously wrote a memorandum to four assistant directors authorizing requests for additional services of up to $20,000 per request without the need to have such requests subsequently reviewed by the School Board. As a result of the erroneous memorandum from Mr. Mione, some G-604s were approved by directors and were not subsequently reviewed by the School Board. This practice was in derogation of the memorandum issued by Respondent. When the discrepancy was discovered, several investigations were ordered by former Superintendent Mills and Deputy Superintendent Daniels. There were approximately 30 people at staff meetings two times a month. All of them review School Board reports. None of them discovered the discrepancy in the conflicting memoranda until after the violations had occurred. Respondent was not charged with wrongdoing or incompetence and was not found incompetent. An independent outside consultant confirmed the need for the G-604s and the procedure authorized by Respondent. Gratuities Former Superintendent Mills established a policy that required all senior administrative personnel, including Respondent, to promote the involvement of members of the business community in the school system. The policy was designed to obtain the aid of business in solving problems such as overcrowding, lack of materials and text books, a lack of funding, and an increasing drop out rate. The policy was a high priority for former Superintendent Mills. Respondent performed the duties required under the policy established by former Superintendent Mills. Respondent entertained members of the business community and was entertained by them. The gratuities accepted by Respondent generally involved free lunches, dinners, and golf outings. Policy Directive Respondent's activities did not violate the policy directive of former Superintendent Mills. Former Superintendent Mills knew of Respondent's activities and approved of those activities. Upper management was encouraged to socialize with members of the business community, including contractors and architects, in an effort to get them involved in solving problems facing the school system. Business Judgment And Impropriety Respondent's business judgment was not adversely affected by his association with vendors of the school system. Respondent's association with such members of the business community did not create the appearance of impropriety. The award of contracts to vendors was the responsibility of Purchasing. Purchasing was under the control of Dr. Boekhoff, the Associate Superintendent of Administration. Ms. Helser was the Director of Purchasing. Respondent did not have the authority to influence decisions made in Purchasing. Incompetence Respondent carried out the policy directive of former Superintendent Mills competently with no adverse affect on his business judgement and without the appearance of impropriety. The business community became actively engaged in solving problems of the school district. Companies such as Motorola, Pratt Whitney, and IBM provided opportunities for speakers to address employees to promote the bond issue. The bond issue was approved by the voters. A program known as "Cities in Schools" was developed as a business partnership to prevent drop out. Funds were raised for programs and materials. Respondent did not improperly promote a particular vendor or product in connection with the business of the School Board. Respondent never violated any administrative directive or established standard of conduct of the Department of Education. Evaluations 128. The Amended Petition For Demotion alleges that Respondent was incompetent in evaluating two employees. Those employees were Mr. Goode and Mr. Hukill. No credible and persuasive evidence was submitted by Petitioners to support their allegations in this regard. Attorney Fees And Costs The parties' request for attorney fees and costs are addressed in the Conclusions of Law.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Palm Beach County School Board enter a Final Order finding Respondent not guilty of any of the allegations in the Amended Petition For Demotion, award Respondent back salary with applicable interest for the entire period of his demotion, immediately reinstate Respondent to a salary level comparable to that received as Associate Superintendent of Planning and Operations in accordance with Section 231.36(6)(b), Florida Statutes, dismiss the request to return Respondent to annual contract status under Section 231.35(4)(c), and maintain Respondent on continuing contract. RECOMMENDED this 23rd day of July, 1993, in Tallahassee, Florida. DANIEL MANRY 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 23rd day of July, 1993.
The Issue Is the Department of Juvenile Justice's (DJJ's) intended award of the lease-purchase contract pursuant to RFP-P6P02 to The Haskell Company (Haskell) instead of to 241 Development Corporation (241 or 241 Development) contrary to the Agency's governing statutes, rules or policies, or the proposal specifications? See Section 120.57(3)(f), Florida Statutes, (Supp. 1996).
Findings Of Fact On or about April 9, 1997, DJJ offered RFP Number P6P02, "Lease Purchase Agreement for a Multi-Program Juvenile Residential Facility." DJJ subsequently issued four addenda including responses to inquiries. The RFP solicited proposals for the lease/purchase of a residential juvenile detention facility (Project). It sought proposals to co-locate four single-sex facilities on the same grounds: a 60-bed moderate-risk (level 6) half-way house for males; a 60-bed moderate-risk half-way house for females; a 40- bed high-risk (level 8) intensive half-way house for females; and a 25-bed high-risk intensive half-way house for males. (RFP Section I. b)) In addition, DJJ required proposers responding to the RFP to include a fifth program, consisting of a 60-bed high- risk intensive half-way house for males, which would be constructed only if DJJ chose to exercise the option to do so. Proposals were limited to 100 pages in length. However, graphic information presented by proposers was not included within the 100 page limitation. (RFP Section V. c)) The RFP required proposers to locate a site for the facilities and to present a design concept narrative and conceptual facility design drawings. (RFP Sections VII. e) 1. and f) 1.) DJJ's RPF expressly notified potential proposers that all costs associated with the site development, permitting, zoning, design, construction, and project management shall be born solely by the proposer, and not by DJJ. (RFP Section III. c) and VII. e) 2.) The RFP also notified proposers that final site plan design and final floor plans would be a "joint effort" of DJJ and the selective proposer. (RFP Section VI. b) and Section VII. f) 3. j)). Following issuance of the RFP in April 1997, four addenda were issued by DJJ responding to various concerns raised by potential proposers and extending the initially scheduled bid opening. No protests were filed by any person to the terms and conditions of the RFP or to any of the addenda. These items therefore constitute unchallenged "specifications." The RFP, as amended, contemplated completion of design and construction within 250 days. (Joint Exhibit 2, Addendum 4 at 2)) A pre-proposal conference was held on May 15, 1997. The RFP made provision for questions regarding the RFP to be submitted to DJJ in writing and indicated that such questions would be answered in addenda to the RFP (RFP Section 3.k)). Questions received by DJJ, whether orally or in writing, were reduced to writing and the questions and answers were distributed to potential proposers. DJJ opened the proposals on June 19, 1997. Timely proposals were submitted by 241; Haskell; Kvaerner Construction, Inc.; Osborne & Co.; and Arthur. On July 11, 1997, the proposals of Arthur; Kvaerner Construction, Inc.; and Osborne & Co. were rejected by DJJ as on- responsive. DJJ, in the person of Steven Meredith, DJJ's contract manager for this Project, determined that the proposals of 241 and Haskell were each baseline or facially responsive to the RFP. This remains DJJ's official position. DJJ subsequently reversed its determination that Arthur's proposal was non-responsive and submitted it to the Evaluation Committee for scoring along with the 241 and Haskell proposals. Mr. Meredith was not a member of DJJ's Evaluation Committee. Members of DJJ's Evaluation Committee were Mike Dunn, Judy Haynes, Edward Joel Hill, Julie Newberry, and Mae Bell Washington. Ms. Haynes, Mr. Hill, and Ms. Washington testified at formal hearing. Because the RFP limited the proposal length to 100 consecutively numbered pages (exclusive of graphical information), any pages in excess of the 100 page limit were not forwarded by Mr. Meredith to the Evaluation Committee; however, in making his referral, Mr. Meredith relied on the page numbers assigned by each proposer, and did not go behind the numbering assigned by each proposer. On August 27, 1997, DJJ publicly posted a Notice of Intent to Award the Project to 241. Subsequently on the same date, DJJ removed this notice and posted notice of its intent to re-post the award. The proposed award was based on the scoring of the proposals for both substantive content and rental rates offered. In the August 27th posting, 241 was mistakenly determined to have achieved the highest score of the three proposals evaluated, 72.6 points as compared to 65.7 points for Haskell. A summary of the scoring of the contents of the application was attached to the posting, as was a copy of the present value analysis of the proposed rental rates offered by the respective proposers. DJJ performed the present value analysis using a Excel spreadsheet computer program. Within a few hours after posting, Mr. Meredith was notified by two DJJ employees that there was an error in calculation for the present value for Haskell. Mr. Meredith re- calculated the present value of the lease rates proposed by Haskell, which had the effect of changing the score assigned to the Haskell proposal for the proposed lease rates from 15.3 to 24.3 points. The change was significant enough to change the total score assigned to the Haskell proposal from 65.7 points to 74.7 points, resulting in the Haskell proposal being the highest scoring proposal. On August 28, 1997, Arthur filed a Notice of Protest of the intended award of the contract to 241. DJJ's basis for re-posting its Notice of Intent to Award the contract to the Haskell Company was that it had improperly evaluated the present value of the lease payments under Haskell's bid, which resulted in the bid being protested. On August 29, 1997, DJJ publicly posted its Notice of Intent to award the Project to Haskell. On that "re-posting," Haskell was the highest ranked proposer with 74.7 points. 241 was second-ranked with 72.6 points. Arthur did not file a Notice of Protest or Formal Written Protest of the intended award to Haskell. On September 10, 1997, Arthur withdrew its Notice of Protest for the intended award to 241. 241 timely filed its Notice of Protest and timely filed its Formal Written Protest of the intended award to Haskell pursuant to Section 120.57(3), Florida Statutes. With its Formal Written Protest, 241 delivered to DJJ a $5,000 bond. On September 12, 1997, Haskell filed its Motion and Petition to Intervene, alleging that 241 lacked standing because 241's proposal was unresponsive. On September 18, 1997, DJJ referred the case to the Division of Administrative Hearings. Haskell was granted intervenor status, and by Order of October 13, 1997, Haskell's Motion for Summary Recommended Order and Motion to Dismiss [241] for Lack of Standing was denied. The Project could be located anywhere in Florida. The 33-acre site proposed by 241 is located in the City of Gretna, Gadsden County. The 21.75-acre site proposed by Haskell is located in St. Johns County. The RFP contained no minimum or maximum site size requirement, and a smaller or larger site is not necessarily advantageous to DJJ, provided the RFP's mandatory and material specifications are met. No site inspection by DJJ personnel was contemplated by the RFP. Therefore, the necessity for accuracy, honesty, and threshold completeness of each bid proposal was all the more essential since the Evaluation Committee would be rating the relative merits of the respective facially responsive proposals. Section IV of the RFP bears the title, "SPECIAL CONDITIONS AND MANDATORY REQUIREMENTS." Section IV of the RFP mandated specific items that had to be included with the proposal in order for it to be considered baseline or facially responsive. Section IV provided, in pertinent part: The following special conditions are mandatory requirements that must be complied with as a condition of submitting a responsive proposal. Failure to comply with any of the following mandatory requirements shall result in proposal rejection for nonresponsiveness. The Agency reserved the right to waive "minor irregularities." "Minor irregularities" were defined in the RFP in relationship to the Agency's retaining the right to reject all bids. See RFP Section III. GENERAL PROVISIONS m) Right to Reject and RFP Section V. PROPOSAL SUBMISSION REQUIREMENTS j) Acceptance of Proposals, each of which provides: The department reserves the right to reject any or all proposals and to waive minor irregularities when to do so would be in the best interest in the State of Florida. Minor irregularities are those which will not have a significant adverse effect on overall competition, costs, or performance (of the contract). Mandatory Zoning Requirement Section IV. d) of the RFP provides: Mandatory Zoning Requirement. In order for a proposal to be considered responsive, at the time of proposal submission, the proposal must contain adequate evidence of existing compliance with local zoning laws for the use intended by the department or evidence of variance for the use intended by the department. The proposal shall contain proof that the proposed parcel is properly zoned. The proof must be in the form of a letter from the zoning or planning department of the county in which the parcel is located. The submission shall also contain a corresponding county or zoning authority description of the permitted uses of the parcel. Letters of intent to obtain zoning are not adequate evidence of an existing zoning for purpose of this requirement. (Underlining in original; boldface supplied) The boldface language of this specification demonstrates that this specification is a determinor of baseline or facial "responsiveness" and a mandatory and material specification of the RFP. The foregoing specification addresses current zoning. It does not address current or future Comprehensive Plan or land use functions. It is discussed here with regard to 241 because Haskell contended that if 241 had failed to submit mandatory zoning information, then 241 lacked standing to proceed with its protest, and because 241's protest specifically alleged that Haskell's proposal was unresponsive on this specification.1 241's proposal contained a "Mandatory Zoning Compliance Affidavit," executed by the Mayor of the City of Gretna. It certified that the applicable local land use laws "will permit the use of the Property as a Multi-Program Juvenile Residential Facility operated by the Florida Department of Juvenile Justice," but it does not list any other permitted uses of the parcel. It does not state the applicable zoning classification or the future land use classification. The Gretna City Commission had met on June 18, 1997, the day prior to proposal submittal to DJJ, and voted to authorize the use of the site proposed by 241 for the Project. This City Commission approval is memorialized in the affidavit executed by Gretna's Mayor which was included within 241's proposal. At the same meeting, the City Commission likewise approved an option agreement for 241 to purchase the site from the City of Gretna. Relevant portions of the option to purchase also were included in 241's proposal. Both the option agreement and the affidavit refer to the legal description of the 241 site as "Exhibit A," also included in 241's timely proposal. Although no county declarations were included in 241's proposal, Mr. Meredith, on behalf of DJJ determined that 241 had substantially complied with Section IV. d) of the RFP and its proposal therefore was baseline or facially responsive. He did not alter this opinion at formal hearing. At formal hearing, evidence showed Gretna has developed its own Comprehensive Plan. Gretna does not utilize a separate zoning map but uses the applicable Future Land Use Map (FLUM) from its Comprehensive Plan in place of a separate zoning map. This map is used with the districts established in the Land Development Code (LDC), and each zoning district corresponds to a land use category on the FLUM with a list of permitted and prohibited uses. Where the zoning district does not expressly prohibit or permit a particular use, the Gretna City Commission decides. Gretna has no specific use category for juvenile detention facilities, and the 241 site is within the FLUM's "Industrial" category. However, the deposition of Gretna's Mayor confirmed that 241 needs no additional approvals to locate the Project on the proposed site. In light of Gretna's pre-bid opening specific authorization of 241's proposed Project on the site, Haskell's evidence and arguments that "Industrial" versus "Public Use" designations on the FLUM and LDR prohibit this project are not persuasive that 241's proposal is either nonresponsive to Section IV. d) of the RFP or that 241's proposal cannot be accomplished due to existing zoning restrictions. The City has already authorized the Project on a site the City as seller is optioning for sale to 241, at a location in close proximity to an existing adult correctional facility.2 In addressing Section IV. d) of the RFP, Haskell's timely proposal included a June 16, 1997, letter from the St. Johns County Planning Department which addressed both zoning and land use status of Haskell's proposed site. This letter was signed by County Planning Technician Heather Morris. It referred to Parcel No. 038480-0010 and indicated that the parcel was zoned "Open Rural." The Haskell proposal also included a list of permitted uses within the "Open Rural" classification, including "governmental uses." Ms. Morris' letter referenced "Exhibit A" as a site plan, but no "Exhibit A" accompanied Ms. Morris' June 16, 1997, letter in Haskell's proposal. Nonetheless, the parcel number on Ms. Morris' letter matched the parcel number in the property information paragraph on page 9, under "Site Information," in Haskell's proposal, and in the Purchase Sale Agreement for the Haskell site also submitted within the Haskell proposal. Evidence at formal hearing showed the original "Exhibit A" to the June 16, 1997, Morris letter to be merely a hand-drawn approximation of the proposed site layout. However, Section VII. j) of the RFP provided that site approval would be a "joint effort" of DJJ and the proposer DJJ ultimately selected. Thus, however characterized, "Exhibit A," and even all refinements up through actual opening of the facility, are not necessarily final site layouts. Ms. Morris' June 16, 1997, letter also indicated that the subject site was within "Mixed Use" and "B Reserve Residential" classifications on the St. Johns County Comprehensive Plan's FLUM and that the use of the property for a juvenile residential treatment facility, "owned and operated by the state of Florida" was consistent with both "Open Rural" zoning and "Mixed Use" future land use districting. Despite considerable testimony that Ms. Morris' June 16, 1997, letter may have been in error in stating that Haskell's proposal and proposed site evidence existing compliance with current local zoning laws and land use functions for the use intended by the Agency and despite testimony that several months may be necessary to finalize county "authorization" to construct the proposed facility, the fact remains that Ms. Morris and St. Johns County have not altered the opinion given by Ms. Morris in her June 16, 1997 letter. A second letter was issued by Ms. Morris on September 16, 1997, following filing of 241's protest herein. That letter confirms that the site plan submitted with Haskell's timely proposal remains consistent with both the zoning and future land use designations for the subject site, and that St. Johns County's position is unchanged by any refinement in the site plan. Likewise, the current Planning Director of St. Johns County testified that the Haskell site "has been and still is" considered a "Mixed Use" district by St. Johns County. Under the St. Johns County Comprehensive Plan, "the interpretation of the Plan and Maps by County staff shall consistently be afforded appropriate deference and will not be overturned in the absence of clear and convincing evidence of misapplication of applicable criteria." Upon the foregoing findings of fact, the evidence and 241's arguments that Haskell was not responsive to the RFP's mandatory zoning requirement and that existing zoning or land use functions currently in effect will prohibit a joint permitting and construction effort by Haskell and DJJ are rejected as neither competent nor substantial and as unproven and unpersuasive. Haskell's Control of Property Section IV. c) of the RFP addresses "control" of the proposed site by the actual proposer as follows: Control of Property. This pertains to the site of future structure(s) and proposed parking areas. To submit a responsive proposal, a prospective lessor must provide evidence of the following with the proposal. Be the owner of record of the site of the proposed facility and parking areas; In lieu of ownership, the proposing entity may possess an Option to Purchase the facility (as defined in Section III) being proposed and submit documentation of such option to Purchase the facility from the owner of record with a copy of the Deed(s), Bill of Sale, etc. A copy of the recorded deed resulting from option exercise must be presented to the department within 60 days of notification of contract award. Under no circumstances will documents be accepted after the 60- day period; and, Submit a copy of the General Warranty Deed (Underlining in original; boldface supplied). The boldface language clearly demonstrates that in order to submit a responsive proposal, "the proposing entity must possess at the date of bid opening an Option to Purchase . . . and submit documentation of such option . . . from the owner of record with a copy of the Deed(s) . . . etc." In this case, the proposing entity is "The Haskell Company." (See Letter of Interest pages 1-2 of Haskell Proposal and the PUR). Pages 15-19 of Haskell's proposal were directed towards meeting specification IV. c) and establishing control. Pages 15-17 constituted a Purchase Sale Agreement (option to purchase) between "Seller," Jessee [sic] Minors, and "Purchaser," Christopher S. Parks, signing on behalf of Haskell Realty Developers Ltd. V. Pages 18-19 constituted a Special Warranty Deed in Jesse Minor's name. Page 9 of the proposal recites that, "The project site, which is approximately 21.75 acres, has been purchased by The Haskell Company (Haskell Realty Developers V, Inc.) for the purpose of developing this project." Also, Attachment A (pricing proposal) of Haskell's proposal shows "Haskell Realty Developers V, Inc." (Lessor) typed on a line which required, "If lease is to be written in a name other than proposer, indicate proposer name." Page 9 and pages 15-19 of Haskell's proposal contradict each other. Mr. Meredith apparently placed no reliance on the page 9 representation that the parcel already had been purchased. Since all of the remaining proposal documentation clearly shows that Haskell has not yet purchased the subject site and since Mr. Meredith was in no way misled by the representation on page 9 of Haskell's proposal, the language found there that the parcel had already been purchased should not disqualify Haskell's entire proposal. 241's allegation that some of Haskell's control documents do not match each other as to the parcel or legal description proposed is rejected as unproven. The Purchase Sale Agreement may encompass more land than Haskell's proposal offered DJJ, but no portion of the property offered DJJ is excluded from the land named pursuant to the Purchase Agreement attached to Haskell's proposal. Mr. Meredith had noted the difference in entities named throughout the Haskell proposal, but he assumed they were identical and therefore determined that the Haskell proposal was responsive on the baseline responsiveness requirement of "control," prior to passing the proposals on to the Evaluation Committee members for their review. At formal hearing, Mr. Meredith testified as DJJ's Agency Representative that if the entities named in the Haskell proposal were not the same, the Agency would not consider Haskell's proposal to be responsive. At formal hearing, The Haskell Company's Vice President, Christopher S. Park, admitted that typed references in its proposal to "Haskell Realty Developers V, Inc.," were wrong. Haskell had intended those references to be, "Haskell Realty Developers Ltd. V," a limited partnership. At formal hearing, it was shown that an entity of "Haskell Realty Developers V, Inc." has never existed. Official corporation records of the Florida Secretary of State show that on April 25, 1997, "Haskell Realty Developers Ltd. V" filed an Amended and Restated Certificate of Limited Partnership. The only change to its previously-filed Certificate was to reflect a new General Partner, "Utility Roofing and Construction, Inc." The original Certificate shows 17 limited partners, all of whom are individuals. There is neither documentary nor direct competent evidence that the proposing entity, "The Haskell Company" directly controls "Haskell Realty Developers Ltd. V" or derivatively controls "Haskell Realty Developers Ltd. V" through Utility Roofing and Construction, Inc.3 Accordingly, the Haskell proposal was unresponsive in demonstrating control by the proposer of the proposed Project site. Moot Issues Due to the foregoing Findings of Fact, it is unnecessary to address the remainder of the evidence or 241's additional arguments as to any other alleged lack of responsiveness of Haskell's proposal or flaws in DJJ's evaluation of Haskell's proposal. 241's Responsiveness Considered De Novo The only lack of responsiveness alleged against 241 by the pleadings was on the issue of "The Mandatory Zoning Requirement," as set out above. However, in the context of this de novo proceeding under the amended Section 120.57(3)(f), Florida Statutes, it would remiss not to address 241's proposal's omission of a financial statement by its proposed contractor.4 Section V of the RFP addresses PROPOSAL SUBMISSION REQUIREMENTS. Under Subsection i)2.d. thereof, a proposal submission requirement for the proposer's construction contractor is a "Completed Experience Questionnaire and Contractor's Financial Statement (Revised 4/95)." This requirement was also listed under Part B on Attachment B, the "Essential Requirements Checklist." Attachment B was provided to all potential proposers as part of the RFP. Despite some "mere convenience" language on Attachment B,5 Section V of the RFP appears to make the dual requirement of a contractor's questionnaire and financial statement mandatory. Section V.2.b.1. states, in pertinent part, Volume II Shall contain items required for A/E and contractor submittal as outlined in Attachment B. Section V.i.2. states, with regard to the contractor information on page 14: Proposal must comply with these instructions and include the requested data. Mr. Meredith, who participated in drafting the RFP and who reviewed the submitted proposals for facial responsiveness, clearly treated the inclusion of a completed construction contractor's questionnaire and financial statement as a mandatory requirement. In order to assess baseline or facial responsiveness, Mr. Meredith created his own "Essential Requirements Checklist" (Joint Exhibit 6) which he testified was based on RFP Section IV's SPECIAL CONDITIONS AND MANDATORY REQUIREMENTS. However, he acknowledged that other RFP items outside Section IV also might affect responsiveness, and his checklist (Joint Exhibit 6) also included as item 15) d), "Completed Experience Questionnaire Contract's [sic] Financial Statement," as a responsiveness requirement. In his review for baseline or facial responsiveness of each proposal, Mr. Meredith checked off both 241 and The Haskell Company as complying with this requirement. However, the evidence adduced at formal hearing shows that 241 submitted its contractor's experience questionnaire but not its contractor's financial statement. 241's contractor, Opus South, expressly declined to provide the required financial information for inclusion in 241's proposal, citing its "strict corporate policy" against making its financial statements public. It suggested that it be contacted for further information, but such contact would clearly be outside of the proposal and would amend the proposal after opening. DJJ Evaluation Committee members assigned different scores in the area of financial capability. It can only be concluded that the RFP contemplated the contractor's financial statement as being a mandatory specification, and the evidence as a whole does not indicate that the Agency, either in the person of Mr. Meredith or the Evaluation Committee members, made a conscious decision to waive the RFP requirement for a contractor's financial statement pursuant to the RFP reservation of a right to waive minor irregularities.6 Also, the evidence in this cause does not affirmatively demonstrate that the absence of a contractor's financial statement could constitute a "minor irregularity" which will not have a significant adverse affect on overall competition, costs, or performance. Other proposers who actually submitted contractors' financial statements would be prejudiced if this requirement were waived. A contractor whose financial situation is not known may affect costs and performance of a contract. Waiver of this requirement clearly would be contrary to competition and have a potential adverse affect on costs and performance. Accordingly, it must be determined upon the evidence adduced in the de novo formal hearing, that 241 was also unresponsive to the RFP as written.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Juvenile Justice reject all bids and re-advertise for the subject Project. RECOMMENDED this 11th day of December, 1997, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 11th day of December, 1997.
The Issue Whether Martin County Comprehensive Plan Amendments Nos. 01-11 and 01-12, pertaining to school siting and public facilities, adopted by Martin County in Ordinance No. 606, on December 11, 2001, are "in compliance," as that term is defined in Section 163.3184(1)(b), Florida Statutes. (All citations to Florida Statutes are to the 2001 version unless otherwise stated.)
Findings Of Fact 1000 Friends of Florida, Inc., is a Florida not-for- profit corporation. Its purposes include monitoring and ensuring the proper implementation of the State's growth management laws. 1000 Friends has approximately 644 members in Martin County, which constitute a substantial percentage of its total membership. 1000 Friends' corporate purposes include the representation of its members in administrative proceedings involving the Growth Management Act, Chapter 163, Part II, Florida Statutes. The type of relief sought by 1000 Friends in this case is the type of relief 1000 Friends is authorized to seek on behalf of its members. 1000 Friends made oral and written comments to Martin County during the time period from the transmittal to the adoption of the Plan Amendments. 1000 Friends' employees have attended and participated in various development and planning activities in Martin County over the years. 1000 Friends has published articles in the local newspaper on planning issues. 1000 Friends was a party in the administrative proceeding over the adoption of the 1990 Martin County Comprehensive Plan, and was involved in the development of the stipulated settlement agreement adopted to settle that proceeding. Lloyd Brumfield owns property and resides in Martin County, and submitted oral and written comments to Martin County during the review and adoption hearings on the Plan Amendments. Martin County Conservation Alliance, Inc. is a not-for- profit Florida corporation and has approximately 100 members who live in Martin County, including Donna Melzer. Ms. Melzer resides with her husband in Palm City, Martin County, Florida. MCCA and Ms. Melzer submitted oral or written comments to Martin County during the review and adoption hearings on the Plan Amendments. Martin County is a political subdivision of the State of Florida and is the local government that enacted the Plan Amendments under review. It is a coastal county located in the southeastern part of the State, on the Atlantic Ocean between Palm Beach County to the south, St. Lucie County to the north, and Okeechobee County, and Lake Okeechobee to the west. Martin County contains four incorporated municipalities within its boundaries: the City of Stuart (the county seat), the Town of Sewall's Point, the Town of Jupiter Island, and the Town of Ocean Breeze Park. The overall size of the entire county is approximately 538 square miles, or 344,357 acres, with agricultural uses on approximately 72 percent of the land, residential uses on approximately 16 percent of the land, public conservation uses on approximately 6.5 percent of the land, and other uses (e.g., commercial, industrial, and institutional) on the remaining 5.5 percent of the land. The current population of Martin County is approximately 125,300 residents. The Department is the state land planning agency, and is responsible for reviewing and approving comprehensive plan amendments by local governments. The School Board is responsible for providing educational facilities and programs to the residents of Martin County pursuant to the Florida Constitution and Florida Statutes. The City of Stuart is an incorporated municipality within Martin County. All of the parties have standing in this proceeding. The Plan Amendment Adoption Process On or about July 10, 2001, the Planning and Development Services Department of Martin County, by and through its director, Nicki van Vonno, requested the Board of County Commissioners of Martin County (Commission) to consider transmitting the second set of proposed 2000-2001 Comprehensive Plan Amendments to the Department. The proposed list included No. 01-9 (Mixed Uses), No. 01-11 (School Siting), and No. 01-12 (Public Facilities). Among other documents, three separate memoranda pertaining to each proposed plan amendment accompanied this request. These materials were submitted to the Land Planning Agency (LPA) for consideration during a public hearing held on July 12, 2001, and also for the Commission meeting held on August 7, 2001. Pertinent here, two separate memoranda pertained to School Siting and Public Facilities and contained background information, applicable statutes, proposed plan amendments, and with respect to school siting, a draft interlocal agreement. Because the proposed Plan Amendments changed substantially after and in response to the Department's Objections, Recommendations and Comments (ORC) Report issued on November 2, 2001, the data and analysis compiled and performed by Martin County planning staff (as of August 2001) is not included here, but is discussed hereafter where relevant to the discussion of the Plan Amendments ultimately approved by Martin County and which were found to be "in compliance" by the Department. On July 12, 2001, the LPA unanimously recommended approval of the three proposed plan amendments. On August 7, 2001, the Commission unanimously approved the three proposed Plan Amendments. Comments from the public were received, including but not limited to comments offered by Lisa Interlandi (co-counsel for Melzer and MCCA in this proceeding), and Ms. Melzer. Written comments were also submitted by Richard J. Grosso, General Counsel, Environmental & Land Use Law Center, Inc. (also appearing as co-counsel for Melzer and MCCA in this proceeding). Other written comments were provided by, among other persons, William Thornton and Lloyd Brumfield. The Commission voted to transmit these Plan Amendments to the Department for consideration. On or about August 20, 2001, the Department received the proposed Plan Amendments. Copies of the proposed Plan Amendments were distributed to appropriate state, regional, and local agencies for their review and comments. By letter dated November 2, 2001, the Department submitted its ORC with external agency comments to Martin County. In part, this letter authored by Charles Gauthier, A.I.C.P., Chief, Bureau of Local Planning, stated in part: The Department supports the growth management objectives of the County in limiting the location of schools and public facilities to the urban service districts. We also recognize the need to include additional siting flexibility for schools and public facilities due to the constraints that exist within the urban service districts. However, we are concerned that the proposed siting policies waive all requirements of the plan without limitation rather than incorporating additional flexibility for siting. Our objections and recommendations are intended to assist the County in its efforts to site required facilities, while continuing to ensure the plan is fully implemented and habitats are afforded appropriate protection. We are available to work with your staff to develop strategies to meet all of these important growth management objectives. The Department expressed two objections relevant here. The first deals with the School Siting Plan Amendment, and proposed changes to the Plan's Future Land Use Element (FLUE) and the Intergovernmental Coordination Element (ICE), and in particular ICE Policy 3-2.A.10.a, which as proposed at the time, stated: Policy: In accordance with Sections 163.3177(6)(h)2 and 235.193, F.S., by 2001, Martin County, the City of Stuart, and the Martin County School Board shall adopt and maintain an inter-local agreement detailing joint processes for collaborative planning and decision making, population projections and the siting and development of public schools. At a minimum, the interlocal agreement shall provide a standardized process for determining the sites available to meet the needs identified by the School Board and for objectively ranking potential sites as to their suitability, considering at a minimum: Federal and state requirements for school siting; Proximity to existing or planned population centers; Availability of public facilities for transportation, including bicycle and pedestrian facilities, stormwater drainage, potable water and wastewater facilities; Opportunities for locating near complementary uses; and Negative impacts to native upland and wetland habitats. The development of school sites located in accordance with Policy 4-4.G.1.m., that is, on sites which lie within a municipality or within the Primary or Secondary Urban Service District, and which sites are selected pursuant to the terms of an interlocal agreement adopted in accordance with this policy, shall be deemed consistent with the remaining provisions of this Comprehensive Growth Management Plan. The Department provided the following objection and recommendation regarding this policy amendment: 1. ORC Objection: Proposed ICE Policy 3- 2.A.10.a is vague and over broad in terms of defining how consistency will be addressed in siting schools. For instance, it is not clear if "deemed consistent" waives procedural requirements such as obtaining a permit, waives all policies which pose any siting constraints, or waives just those provisions which might preclude siting a school on a specific property. The vague language does not provide sufficient guidance to define how consistency will be achieved in siting schools. The policy does not set forth a process for addressing and resolving potential conflicts between policies in a manner that ensures the intent of the plan is achieved to the maximum extent possible and that priority is given to specific requirements of the plan such as habitat protection. The policy does not provide sufficient guidance to prioritize siting based on the functional characteristics of resources, such as wetlands, and does not provide guidance on weighing and evaluating competing public objectives. Adequate data and analysis has not been presented to demonstrate which existing plan provisions create siting conflicts and the extent to which such policies must be relaxed or modified in order to overcome siting conflicts as necessary to meet projected school needs. Also, the policy does not include language to encourage the collocation of schools with other public facilities. [Section 163, Part II., F.S.,and Rule 9J-5.005(2) and (5), and Rule 9J- 5, F.A.C.] Recommendation: Provide additional data and analysis that identifies the specific policies which create siting problems and address how such policies could be refined to specifically provide greater flexibility for school siting. Revise the proposed policy to clarify how consistency determinations will be made in regard to those policies that result in siting constraints. For example, rather than stating by policy that school siting conducted pursuant to the interlocal agreement shall be deemed consistent with all plan provisions, the policy should provide guidance on how specific policies will be applied in siting schools to allow additional flexibility, while ensuring that the intent of the policy is implemented to the maximum extent practicable. Such a policy could specifically require that the siting process include an alternatives analysis and a finding of necessity which demonstrates that the proposed site is necessary to meet projected needs, that alternative sites have been explored and deemed impracticality [sic] and that the proposed site minimizes the extent of impacts in comparison to other sites. The policy should provide guidance for evaluating and comparing sites based on priorities for resolving conflicts between policies which may potentially create conflicts in siting schools. The policy should also establish criteria for evaluating alternative sites based on the functional characteristics of habitats, such as wetlands, so that higher quality habitats are given more weight and afforded greater protection in the siting process. (Emphasis included in original.) The Department also provided an objection and a recommendation with respect to proposed changes to the Capital Improvements, FLUE, Coastal Management, Conservation and Open Space Elements for the proposed Public Facilities Plan Amendment. The Department's objection and recommendation follows: B. CPA #01-12 (BCC): Changes to the Capital Improvements, the Future Land Use, Coastal Management, Conservation and Open Space Elements-The County proposes two exemptions to waive provisions of the plan. One set of amendments allows specific wetland and upland requirements to be waived for stormwater treatment projects and facilities as part of the Comprehensive Everglades Restoration Plan (CERP). These waivers are appropriate when such lands are necessary to ensure the successful restoration of the everglades. No objection is raised regarding these policies. 2. ORC Objection: Proposed Policies 14- 4.A.4.c. and 14-4.A.4.d.[1]allow the waiver of all goals, objectives and policies of the comprehensive plan as may be necessary to site public facilities in the urban service districts. The proposed amendments are over-broad and do not ensure adequate implementation of the comprehensive plan in siting public facilities. The proposed policies do not include sufficient guidelines for addressing and resolving potential conflicts between policies in a manner that ensures the intent of the plan is achieved to the maximum extent possible and that priority is given to specific requirements of the plan such as habitat protection. The policies do not set forth sufficient guidelines to develop the project impact analysis in a manner that ensures siting alternatives will be evaluated, priorities will be established, and potential impacts minimized and mitigated. The policies do not include criteria for evaluating alternatives based on the functional characteristics of resources, such as wetlands, and does [sic] not provide guidance on weighing and evaluating competing pubic objectives. Adequate data and analysis has [sic] not been presented to demonstrate which existing plan provisions create siting conflicts and the extent to which such policies must be relaxed or modified in order to overcome siting conflicts as necessary to provide needed public facilities. [Section 163, Part II, F.S., and Rule 9J-5.005(2) and (5), and Rule 9J-5, F.A.C.] * * * Recommendation: Provide additional data and analysis that identifies the specific policies which create siting problems and address how such policies could be refined to specifically provide greater flexibility for siting necessary public facilities. Rather than waiving requirements of the plan, amend the plan to provide more specific strategies for siting public facilities in a manner that minimizes impacts. For example, revise the policies to provide additional guidance on how the project impact analysis process will work by specifying minimum requirements should be addressed as part of the project impact analysis. The policy could specify that the siting process include an alternatives analysis and a finding of necessity which demonstrates that the proposed site is necessary to meet health, safety and welfare needs, that alternative sites have been explored and deemed impracticality [sic] and that the proposed site minimizes the extent of impacts in comparison to other sites. The policy should provide guidance for evaluating and comparing sites based on priorities for resolving conflicts between policies which may potentially create conflicts in siting public facilities. The policy should also establish criteria for evaluating alternative sites based on the functional characteristics of habitats, such as wetlands, so that higher quality habitats are given more weight and afforded greater protection in the siting process. (Emphasis in original.) Staff of the Treasure Coast Regional Planning Council (Council) issued a Memorandum of October 19, 2001, (included with the ORC) which evaluated the Plan Amendments. The report was approved by the Council. The Council did not object to the Plan Amendments, but offered "comments" regarding the Public Facilities Plan Amendment.2 In general, the Council felt that this Plan Amendment "would allow new public facilities to be developed without protecting wetlands." The Council noted that this Plan Amendment was inconsistent with the Council's Strategic Regional Policy Plan (SRPP), and in particular Policies 6.6.1.1 and 6.6.1.2, because the Plan Amendment, "as written would also allow waivers to any requirement of the Comprehensive Plan," and "[a] waiver without limits or instructions for its use is not good public policy." Further, the Council noted: "If the County proceeds with adoption of policies to allow these waivers, Council recommends the County specifically identify the criteria under which any waiver of the Comprehensive Growth Management Plan (CGMP) goals, objectives and policies for public projects is based. These criteria should be clearly and specifically stated in the CGMP so the public can be assured the criteria are being met and that any waiver allowed by the County is for the public good. Also, specific compensation/mitigation criteria should be established to offset loss of wetland habitat; and limit and mitigate for any other impacts granting the waiver may have on County levels of service and the natural and built environment. Council recommends that the County utilize waivers only after all other possible alternatives are fully examined." The Council also recommended that a proposed amendment pertaining to "waivers and exceptions" for "wetland areas" appearing in three elements (for Public Facilities) "not be adopted until precise guidelines are developed that specify the conditions under which this waiver may be applied."3 The Department of Transportation (DOT) objected to two provisions of the Public Facilities and School Siting Plan Amendments regarding existing concurrency requirements and potential level of service impacts of the proposed waiver on the transportation system. DOT also questioned "whether concurrency provisions of the [Plan] will apply to school construction once site selection is completed." The Department of Environmental Protection offered no comments to the Plan Amendments submitted for the Department's ORC review. The Department of State did not have any objections or negative comments. Martin County planning staff compiled a response to the Department's ORC, which set forth the Department's Objections and Recommendations, and to the Council's comments. On or about November 6, 2001, Martin County planning staff prepared a summary of the preceding events, which was furnished to the Commission for consideration during the Commission's December 4, 2001, workshop. Revisions and/or additional language were drafted by staff in light of the ORC, including the Council's comments, and comments from the public. Previously, the Commission directed staff to develop the Public Project Impact Analysis, specified in proposed plan amendment Policy A.4.e. of the public projects text amendment, which was also considered during the workshop. County staff had been working with the Department and Council staff on addressing the comments and objections of these agencies. Representatives of the County and the School Board met with Department Secretary Steven Seibert to discuss the school siting text amendment which had been re-drafted, but not in the final form ultimately approved by Martin County. On December 11, 2001, revisions of the Plan Amendments were presented to the Commission for adoption during a public hearing. By letter of December 7, 2001, Secretary Seibert was advised of the Department's support for the School Siting and Public Facilities Plan Amendments. The Commission approved the revisions and the Plan Amendments were transmitted to the Department. On February 1, 2002, the Department completed its review of the Plan Amendments adopted by Ordinance No. 606 on December 11, 2001, and found the Plan Amendments "in compliance." The Department's Notice of Intent was published in the Jupiter Courier on February 4, 2002. Textural Plan Amendment 01-11 (School Siting) As approved by the Commission and found to be "in compliance" by the Department, the School Siting Plan Amendment amends the ICE and the FLUE of the Plan. With respect to the ICE, the School Siting Plan Amendment deletes Section 3-2.A., Objective 8, Policy d., creating a new Policy d. after the following existing (Objective) language: "On an ongoing basis Martin County shall coordinate its Comprehensive Growth Management Plan with the plans of the Martin County School Board, the City of Stuart. . .and the Counties of Palm Beach, St. Lucie and Okeechobee." New Policy d. provides: d. Policy: The County and the Martin County School Board shall coordinate a biennial review of the School Impact Fee Ordinance in order to ensure that new developments bears [sic] its proportionate share of the cost of providing new school facilities. The School Siting Plan Amendment also deletes Section 3.2.A, Objective 10, Policies a. and b. (of the ICE), and substitutes a new Policy a. after the following existing (Objective) language: "Martin County, the municipalities, and the Martin County School Board shall coordinate the planning, location, and review of proposed educational facilities site plans and offsite impacts." New Policy a. provides: Policy: In accordance with Sections 163.3177(6)(h)2 and 235.193. F.S., by 2001, Martin County, the City of Stuart, and the Martin County School Board shall adopt and maintain an interlocal agreement detailing joint processes for collaborative planning and decision making, population projections and the siting and development of public schools. Due to the unique locational requirements for public schools imposed by state and federal requirements and considering the overall benefits to the community of locating public schools within a municipality or within the Primary or Secondary Urban Service District, it may not be possible to achieve consistency with each and every policy of this plan in the same manner as other types of development. Therefore, in order to achieve the full public benefit of locating public schools within a municipality or within the Primary or Secondary Urban Service District, this policy provides a mechanism for balancing the Goals, Objectives and Policies of this Plan and shall be the sole means of determining consistency with this Plan for purposes of siting and constructing public schools. The interlocal agreement shall provide a standardized process for determining the sites available to meet the educational facility needs identified by the School Board and for objectively scoring and ranking potential sites as to their suitability. The scoring and ranking of the interlocal agreement shall favor sites which: Are consistent with federal and state guidelines for school siting; Are in close proximity to existing or planned population centers and student populations; Maximize the use of existing or planned capital facilities for transportation, including bicycle and pedestrian facilities, stormwater management, potable water and wastewater facilities and maintain adopted Levels of Service for mandatory public facilities to the maximum extent practicable; Are in close proximity to complementary uses, such as but not limited to public parks and libraries; and Avoid negative impacts to wetlands and upland habitats and where negative impacts cannot be avoided, sites for which permits can be obtained to allow minimization and mitigation of such impacts, in accordance with state and federal permitting requirements. The interlocal agreement shall include provisions for an alternatives analysis designed to demonstrate the extent to which each potential school site, relative to other potential sites, is necessary to meet projected needs of the population and maximizes the public benefit, as measured by the criteria set forth in paragraphs (1) and (5) above. A school site located in accordance with Policy 4-4.G.1.m., that is, on a site which lies within a municipality or within the Primary or Secondary Urban Service District, and which is selected pursuant to an interlocal agreement adopted in accordance with this policy, shall be deemed to be the most appropriate site available to satisfy the identified public education need while maintaining consistency with the Goals, Objectives and Policies of this Plan to the maximum extent practicable and the siting and construction of a public school on any such site shall be deemed consistent with this Plan. The School Siting Plan Amendment also deletes Section 4-4.G. (encouraging urban development in urban service areas), Objective 1, Policy m. of the FLUE, and adds a new Policy m. after the following existing (Objective) language: "Martin County shall concentrate higher densities and intensities of development within strategically located Primary Urban Service Districts. . . ." New Policy m. provides: m. Policy: Public schools shall be located only within the Primary Urban Service District (PUSD) or the Secondary Urban Service District (SUSD). Previously, Policy m. authorized public schools as an allowable use within the Primary Urban Service District, and further provided that "[p]ublic schools may be allowed in the Secondary Urban Service District based upon a demonstration of need." Is the School Siting Plan Amendment "in compliance?" In general, Petitioners contend that the School Siting Plan Amendment is not "in compliance" because it is vague and lacks meaningful, predictable standards; improperly defers decision-making with respect to the siting and construction of schools to the participants of an interlocal agreement and thereby eliminates public participation; is not supported by appropriate data and analysis; causes urban sprawl; improperly eliminates the requirement that schools comply with Level of Service (LOS) requirements; fails to protect natural resources; and allows incompatible land uses. The ICE requires Martin County, the municipalities, and the School "to coordinate the planning, location, and review of proposed educational facilities site plans and offsite impacts." To this end, the School Siting Plan Amendment amends the ICE of the Plan to require Martin County, the City of Stuart, and the School Board "to adopt and maintain an interlocal agreement detailing joint processes for collaborative planning and decision making, population projections and the siting and development of public schools." The siting (of suitable sites) of public schools has been a particular challenge to local governments and school districts for many years. This is so, notwithstanding the statutory authority to establish "joint processes for collaborative planning and decisionmaking [sic] on population projections and public school siting" and the authority to "establish by interlocal or other formal agreements executed by all affected entities" these joint processes consistent with their adopted ICEs pursuant to Section 163.3177(6)(h)2., Florida Statutes. Historically, there appears to have been little coordination between school planning and siting, and land use planning and regulation. County school district's have been responsible for the former and local governments for the latter. As Florida began to focus more and more on the importance of managing growth, it became obvious that school planning, siting, and construction had to be coordinated with overall growth management because schools usually draw development. School siting requires more than consistency with a comprehensive plan. It requires compliance with state and federal requirements which presents some unique and sometimes difficult problems. In order to address some of these problems, the Legislature enacted laws authorizing local governments to enter into local agreements with school districts to address the problem of school siting to ensure that the siting and construction of schools are done within the overall planning framework and overall local comprehensive plan. In 1999, the Stuart City Commission, the School Board, and the Commission held a joint meeting regarding proposed amendments to the Plan related to school siting. These entities created a Joint Task Force on School Siting (Task Force) which was responsible for drafting an interlocal agreement. Intensive meetings and workshops were conducted, in part, with the assistance of a consultant with extensive experience in conflict resolution as well as school siting. On May 1, 2000, the Task Force approved the overall format of an interlocal agreement for school siting based on the concept that potential school sites would be scored and ranked according to a policy matrix, such that only sites scoring near the top would be considered consistent with the comprehensive plans and land development regulations. While in general agreement with the overall format of the agreement, the Task Force directed staff to continue working on several outstanding details. The Martin County School District retained a knowledgeable professional to perform an analysis of all the property within the urban service areas and was advised that it would be very difficult, if not impossible, to site middle and high schools within the PUSD, which would meet all of its requirements and still meet all of the Plan policies. At the request of the School Board, the Technical Advisory Committee on School Siting convened in January 2001, to implement a proposed interlocal agreement by evaluating and recommending sites appropriate for the location of Martin County's planned "2003 High School." Membership on the Committee included representatives from Martin County, the School Board, and the City of Stuart. Twenty-two sites were examined and placed into three categories. In light of all federal, state, and local requirements, all of the sites were constrained in some respect. However, the Martin County School District's Five-Year Work Program indicates that only one new school (a high school) is programmed for this planning period. As of the final hearing, this high school is in the process of being sited. It appears this site was selected pursuant to the Interlocal Agreement adopted in August 2001. Assuming that the new high school is built, no new school sites are expected to be needed within the five-year time frame. However, some existing school(s) may be rebuilt, such as Port Salerno Elementary School. Martin County did not want to provide a blanket exception or waiver to the Plan policies, and did not believe it was necessary to do so. The Task Force ultimately concluded that, by recognizing the role that public schools play in community- building and incorporating those features into the policy matrix in an interlocal agreement, the public could potentially achieve an overall better result than would likely have been possible by relying solely on the existing regulatory scheme of the Plan and the Land Development Regulations (LDRs). By providing a scoring system which awards points based on positive characteristics, such as collocation with related public facilities, and subtracts points based on negative characteristics, such as environmental impacts, the interlocal agreement can be expected to help resolve what are sometimes competing public objectives. This process requires the School Board and the local entities to work together in the process of scoring and ranking the available sites. In this light, this process enables these entities to explore the true costs and benefits of school-siting decisions, not just from their own individual perspectives, but from the perspective of the broader community. As noted by planning staff, "the School District, which would normally tend to view the 'cost' of school siting as a function of the price of land, construction and long term operations, will be better able to recognize the costs (and benefits) with respect to other public services. Similarly, the local governments will be in a better position to recognize how their regulations affect the ability of the School District to provide the necessary educational facilities." Another approach would have been to specify which Plan policies are not applicable to school siting decisions. The approach taken by Martin County is not proscribed per se by any statute or rule. Comprehensive plans may contain different standards for different types of development, such as schools. The School Siting Plan Amendment sets out a separate method for determining consistency for public school site selection and development which is unique within the Martin County Plan and is not in conflict with any of its remaining provisions. The School Siting Plan Amendment addresses how locational, infrastructure, and natural resource protection policies are to be balanced with respect to the siting school facilities thereby maintaining internal consistency. Under the School Siting Plan Amendment, by its plain terms, Martin County, the City of Stuart, and the School Board are required to adopt and maintain an interlocal agreement which details joint processes for collaborative planning and decision- making, population projections, and the siting and development of public schools. This method is consistent with Sections 163.3177(6)(h)2. and 235.193(3), Florida Statutes. There is an existing Interlocal Agreement among Martin County, the School Board, and the City of Stuart which was furnished to the Department in August 2001, with the initial set of plan amendments. This agreement was the subject of a lengthy process of negotiation among Martin County, the City of Stuart, and the School Board and also developed by the appointed Task Force mentioned above. The Interlocal Agreement, however, is background information in support of the Plan Amendment, but is not specifically referenced in the School Siting Plan Amendment or in Ordinance No. 606, and does not implement the provisions of the Plan Amendment because the Agreement pre-dated the adoption of the Plan Amendment. (Mr. Metcalf of the Department viewed the Agreement "from the standpoint of how they set up their ranking system and scoring system and just as background information.") The Interlocal Agreement is not subject to review for compliance with the Plan Amendment or with the Plan in this proceeding. By construction of its terms, the School Siting Plan Amendment only applies to new school sites, not to the redevelopment or expansion of existing schools, which would have to be consistent with all of the provisions of the Plan. This Plan Amendment applies to the siting and construction of a public school. The interlocal agreement must provide "a standardized process for determining the sites available to meet the educational facility needs identified by the School and for objectively scoring and ranking potential sites as to their suitability." Every school site must be selected pursuant to an interlocal agreement adopted in accordance with Policy a. The scoring and ranking system in the interlocal agreement is required to favor sites which satisfy the five criteria set forth in the Plan Amendment. See Finding of Fact 34.4 (But, any adopted interlocal agreement is not required to be adopted as a plan amendment notwithstanding that it must be consistent with the Plan Amendment.) The Plan Amendment sets forth a process for balancing competing public interests, which are expressed as a policy. It is at least the subject of fair debate that the listed criteria provide a measurable, meaningful, and predictable framework. This means that there is sufficient direction in the Plan Amendment to be able to direct the development of LDRs and other programs in the Plan. In the ORC, the Department advised Martin County: "Adequate data and analysis has not been represented to demonstrate which plan provisions create siting conflicts and the extent to which such policies must be relaxed or modified in order to overcome siting conflicts as necessary to meet projected schools needs." Mr. Metcalf stated that there were no data and analysis to demonstrate which plan provisions create siting conflicts after the ORC was issued. However, in its response to the ORC, Joint Exhibit 6, page 3 of 12, Martin County advised, in part: "Considering all federal, state and local requirements, each of these sites [described in the Site Selection Recommendations report] is constrained in some respect." Nevertheless, Mr. Metcalf felt that this initial concern "was adequately mitigated by the fact that they now have language that talks about the idea of maximizing consistency with the comprehensive plan by scoring across those five criteria," including the requirement that schools be located within the urban service area which necessarily avoids an expansion of the urban boundary. The level of detail required for data and analysis to support a plan amendment varies. For example, consideration is given to the local government's existing and projected population and rate of population growth. See generally Rule 9J-5.002(2)(a)-(g), Florida Administrative Code. The level of detail is related to the context of the plan amendment. The data and analysis supporting the School Siting Plan Amendment meet the minimum standards. Here, the five criteria are mandatory in that each proposed site must satisfy each in order to have the potential for ultimate selection. However, while the issue was the subject of differing opinions,5 this language does not necessarily require that the highest-ranked site be selected, but the scoring and ranking system of the interlocal agreement must favor sites which meet all of the criteria. Otherwise, a site is not favored. Policy a. also requires the interlocal agreement to include an "alternatives analysis designed to demonstrate the extent to which each potential school site, relative to other potential sites, is necessary to meet the projected needs of the population and maximizes the public benefit, as measured by the" five criteria mentioned above. (Emphasis added.) Thus, each proposed site, having met the five criteria, may receive different scores in relation to each other as part of the alternatives analysis which requires, in part, consideration of how a site "maximizes the public benefit" as measured by all of the five criteria. The site selected would be among the best available sites. Stated otherwise, the School Siting Plan Amendment affords some flexibility. Doug Griffin, School Board attorney for the Martin County School District, explained: Well, wetlands infrastructure in each and every one of those things are very important. There is also the community issue, the school community issue where the best place is to pick a site. There may be two or three sites that are very close in terms of objective scores, but the community is absolutely supportive of a particular site and that's why we built this in to slow [sic] community input into where we locate our schools assuming that the sites are relatively equal in terms of their objective scores. All sites must be consistent with federal and state guidelines for school siting pursuant to criterion (1). All proposed school sites must be located within a municipality or within the Primary or Secondary Urban Service Districts. The Urban Service District consists of the Primary Urban Service District (PUSD) surrounded by the Secondary Urban Service District (SUSD) which is the transition between urban development and the rural agricultural areas of Martin County. (It appears that the SUSD is generally to the south and on the fringe of the urbanized area. Development is strongly discouraged in the rural and agricultural areas, with densities of one unit per 20 acres. The SUSD allows development of less than two units per acre, whereas the PUSD allows more than two units per acre.) Criteria (2)-(4) recognize, in part, the need to locate a school in proximity to student populations. It is not reasonable to expect the siting of a school in a remote area where there are no existing or planned population centers. Schools are influenced by development patterns. As a policy choice, it is preferable to site schools in the urban service district versus outside of the urban service district. Criterion (2) requires a prospective school site to be "in close proximity of existing or planned population centers and student populations." ("[I]n close proximity" means nearby.) The concept of sites being within close proximity (collocation) to planned population centers and complementary uses (criterion (4)) dovetails with the concept of limiting siting to the urban service district. These criteria also afford consideration of minimizing travel distances for students. See generally Section 163.3177(6)(a), Florida Statutes. ("The future land use element shall include criteria which encourage the location of schools proximate to urban residential areas to the extent possible and shall require that the local government seek to collocate public facilities, such as parks, libraries, and community centers, with schools to the extent possible.") Criterion (3) is a key component to combating urban sprawl by avoiding the need to extend public services out in a linear fashion that might tend to promote leapfrog development. The use of existing or planned public facilities is required to be maximized, which means that the public facilities are to be utilized to the fullest extent possible. See generally Rule 9J- 5.006(5)(g)6. and 7., Florida Administrative Code (failure to do so is an indicator of urban sprawl); see also Rule 9J- 5.011(2)(b)3., Florida Administrative Code (same). The School Siting Plan Amendment recognizes that if Martin County is to continue its efforts to discourage urban sprawl, it needs to find a way to accommodate public schools and other public facilities within the urban service districts. Otherwise, schools may be located in rural and agricultural areas, with development sure to follow. In order to achieve the overriding goal of containing sprawl, conflicting policies and other very important considerations, like wetlands protection, arise. These policy considerations need to be harmonized in a consistent manner with applicable statutes and rules. The location requirements in the School Siting Plan Amendment are consistent with, and further the Martin County goal of discouraging urban sprawl. As a separate requirement, criterion (3) also requires the maintenance of adopted LOS for mandatory public facilities6 to the "maximum extent possible." However, this provision does not authorize a waiver or exemption of LOS standards and concurrency requirements for public facilities including schools. Stated otherwise, a school site must meet the adopted LOS standard that has been established in the Martin County concurrency system. (For example, if the school district wants to build a school on a site, that school must be built in such a manner as to comply with traffic LOS standards.) Any interpretation to the contrary would lead to a finding of inconsistency with statutory requirements. Mr. Metcalf opined that maintaining adopted LOS for mandatory public facilities to the maximum extent practicable could result in a school site not meeting the LOS.7 Criterion (5) provides: "Avoid negative impacts to wetlands and upland habitats and where negative impacts cannot be avoided, sites for which permits can be obtained to allow minimization and mitigation of such impacts, in accordance with state and federal permitting requirements." By rule, local government comprehensive plans are required to have a conservation element which, among other things, requires policies which address the protection and conservation of wetlands. Rule 9J-5.013(3)(a), Florida Administrative Code. "Future land uses which are incompatible with the protection and conservation of wetlands and wetland functions shall be directed away from wetlands. . . . Land uses shall be distributed in a manner that minimizes the effect and impact on wetlands. The protection and conservation of wetlands by the direction of incompatible land uses away from wetlands shall occur in combination with other goals, objectives and policies in the comprehensive plan. Where incompatible land uses are allowed to occur, mitigation shall be considered as one means to compensate for loss of wetlands functions." Rule 9J- 5.013(3)(b), Florida Administrative Code. Wetlands provide important ecological functions, including but not limited to groundwater recharge. Martin County has a "mosaic of wetlands." Upland and wetland areas are interspersed throughout Martin County. Isolated wetlands, which are by definition not connected to streams, creeks, rivers, or other surface waters, are important for various species, such as wading birds, and other species and habitats. The Department determined that as of 1995, approximately 11 percent of the wetlands in Martin County were located within the urban service area. (Mr. Metcalf explained that this assessment was based on the "best available data from the national wetland inventory and soil-type analysis and the thematic mapping." He received the "digital coverages" for Martin County after the Department found the Plan Amendments "in compliance." The information was available to Martin County before the adoption of the Plan Amendments.) General institutional uses of land in Martin County when compared to other land uses on the Future Land Use Map (FLUM) comprised approximately four percent. (Typically, the range is between four and ten percent, with Martin County on the low side.) Approximately one-half of one percent of the wetlands in the urban service area may be impacted by the School Siting Plan Amendment. Mr. Metcalf estimated that approximately 200 acres of wetlands within the urban service district could be impacted by the Plan Amendment, based on the notion that all of those wetlands are available. He believed 200 acres was de minimis. Mr. Metcalf's assessments are reasonable. The School Siting Plan Amendment does not exempt school sites from natural resource protection because any selected school site must "[a]void negative impacts to wetlands" and "where negative impacts cannot be avoided," such impacts are required to be minimized and mitigated "in accordance with state and federal permitting requirements." See Section 163.3184(6)(c), Florida Statutes ("When a federal, state, or regional agency has implemented a permitting program, the state land planning agency shall not require a local government to duplicate or exceed that permitting program in its comprehensive plan or to implement such a permitting program in its land development regulations.") A school site is required to satisfy criterion (5) in order to be consistent with the Plan. Martin County has stringent wetlands protections in the Plan. To this end, Martin County decided to provide protections to wetlands in addition to those required by state and federal regulations, which is good from an ecological perspective. One witness thought this was a "very noble idea." However, the issue is whether the School Siting Plan Amendment, which provides a different set of wetlands protections, is not "in compliance." Stated otherwise, does the School Siting Plan Amendment provide adequate protections for wetlands within the statutory and rule framework which provides minimum standards which must be met? The persuasive evidence indicates that the federal and state regulatory programs which provide protection for wetlands can afford adequate protection as a matter of policy in light of the Plan Amendment. Whether mitigation will be adequate for a specific school site must await consideration of a specific development proposal. The comprehensive plan's conservation element is required to contain one or more objectives which, in part, "[c]onserve, appropriately use and protect minerals, soils and native vegetative communities, including forests" and "[c]onserve, appropriately use and protect fisheries, wildlife, wildlife habitat and marine habitat," addressing the requirements of Section 163.3177(6)(d), Florida Statutes. Rule 9J-5.013(2)(b)3. and 4., Florida Administrative Code. Conservation allows for the wise use of a resource and does not equate with preservation, which requires that resources be left intact. Pursuant to the Plan Amendment, school sites are required to avoid negative impacts to upland habitats. Section 9-4, Objective 7., Policy e. provides that "Martin County shall ensure that a minimum of 25 percent (by 2005) of the existing upland native habitat in the County [county-wide] will be preserved." (Increases in the percentages required (to 15 percent in 1995 from 10.9 percent, 20 percent in 2000) are staggered in the Plan and these "percentage goals will be attained for both endangered/rare and common uplands, to the maximum extent feasible." This 25 percent goal does not apply, by its terms, on a site-specific basis. The persuasive evidence indicates that criterion (5) will not affect the ability of Martin County to reach the target goal of preserving 25 percent upland native habitat by 2005. The persuasive evidence indicates that the School Siting Plan Amendment will not have a significant impact on the upland resources of Martin County. By its plain terms, a selected school site is not required to comply with other Plan provisions pertaining to upland habitat protections as long as it complies with the Plan Amendment. Also, the Plan Amendment does not require any minimum upland preservation to a selected school nor do federal and state regulations require mitigation of impacts to upland habitat, although there are federal laws which protect, e.g., endangered species. Nevertheless, to the extent there are no state and federal permitting requirements which authorize "minimization and mitigation" for upland habitats, potential school sites must avoid negative impacts to upland habitats. Potentially, the School Siting Plan Amendment (as well as the Public Facilities Plan Amendment) does not prohibit schools from being sited and constructed in the coastal high- hazard area of Martin County. This was of initial concern to Mr. Metcalf. It is the Department's practice to have local governments limit their infrastructure capacity to accommodate planned populations in the coastal high-hazard areas. Also, the Department felt that it was unlikely that Martin County would locate a school in a high-hazard area. The Department of Education has a guideline which indicates a preference to avoid coastal high-hazard areas and funding is limited at the federal level, including a required local match. (Martin County has Plan provisions which limit public expenditures in coastal high- hazard areas.) Flood plain standards are also required when schools are designed. If a school site is located on a site which lies within a municipality, or within the Primary or Secondary Urban Service District and selected pursuant to an interlocal agreement adopted in accordance with Policy a., the selected school site is "deemed to be the most appropriate site available. " Martin County explained the meaning of this provision in its response to the ORC, Joint Exhibit 6, pages 3 and 4 of 12, in part, as follows: Because the policy matrix[8]of the interlocal agreement exhaustively addresses all of the relevant policies of the Comprehensive Plan as well as state and federal requirements, including both procedural and substantive requirements, a site which scores near the top of all available sites to meet the identified need, is rightly 'deemed consistent' with the comprehensive plan. The phrase 'deemed consistent' was purposefully chosen because it serves to suspend those provisions of the Plan that, by operation of the interlocal agreement, would have been determined to be relatively unimportant or counterproductive in the context of public school development, while preserving the ability of the County to recommend compliance to the maximum extent practicable (as is provided for in the interlocal agreement). In other words, if the Plan were to exempt public schools from certain requirements (even under limited circumstances), the provision in the interlocal agreement requiring compliance to the maximum extent practicable would be rendered meaningless. In effect, the term 'deemed consistent' applies to those provisions of the Plan which might preclude the development of a school on a site which, by operation of the exhaustive standards of the interlocal agreement, has been determined to be the best available to serve the identified need. The interlocal agreement provides for a development review procedure that is appropriately tailored to fit the unique circumstances of public school development. All other state and federal permitting requirements remain in place. School Boards are already statutorily exempt from the need to obtain a local building permit (they are subject to the state building code and state oversight for building inspections). Regarding public participation, the public would have access to the decisions of the School Board's deliberations and decisions, which are made during public meetings. Similarly, Martin County is required to approve any development order for any site selected pursuant to the interlocal agreement adopted pursuant to the School Siting Plan Amendment. An action challenging the consistency of that decision with the requirements of the Plan Amendment could be brought pursuant to Section 163.3215, Florida Statutes. There were no issues raised in the proceeding that Petitioners and other members of the public did not have the opportunity to fully participate in the public process leading to the adoption of the Plan Amendment pertaining to school siting and other public facilities. Textural Plan Amendment No. 01-12 (Public Facilities) As approved by the Commission and found to be "in compliance" by the Department, the Public Facilities Plan Amendment adds language to the FLUE, Chapter 4; the Coastal Management Element, Chapter 8; the Conservation and Open Space Element, Chapter 9; and the Capital Improvements Element, Chapter 14. With respect to the FLUE, the Public Facilities Plan Amendment adds additional language under Section 4-5.B.(5)(h)1)- 3), (performance standards for wetlands areas). The performance standards in the FLUE, Subsection 4-5.B. provide, in part, that "Wetland Protection Requirements are detailed in the Conservation and Open Space Element," Chapter 9. The initial paragraph of Subsection 4-5.B.(5) deals with "Waivers and Exceptions" and currently provides: "All wetland alteration allowed under these exceptions shall be mitigated sufficiently to ensure that there is no net loss of functions or the spacial extent of wetlands in Martin County. No exceptions or waivers shall be granted to these standards except under the conditions described below." Currently, there are seven waivers and exceptions ((a)-(g)) and the Plan Amendment adds subsection (h) as follows: Stormwater treatment projects listed in the adopted Capital Improvements Plan, constructed by the Martin County Board of County Commissioners and reservoirs, stormwater treatment areas and related facilities constructed as part of the Comprehensive Everglades Restoration Plan in any part of Martin County subject to the following: The project shall be designed to cause the least amount of negative impact to wetlands. Waivers to existing requirements will be based on the principle of protecting the highest quality habitat and impacting the lowest quality habitat. Below are example habitats ranked from lowest to highest in quality and importance. Wetland buffers degraded with exotic vegetation. Wetland buffers, undisturbed Wetlands, isolated and degraded. Wetland systems, large and disturbed. Wetland systems, large and undisturbed. Wetland quality will be assessed using criteria established by the State of Florida. All projects shall follow all State and Federal regulations and permitting requirements. No such waiver to the Comprehensive Plan policies or the Land Development Regulations shall be granted that would jeopardize the continued existence of threatened or endangered species as listed by the Florida Fish and Wildlife Conservation Commission or the U.S. Fish and Wildlife Service.[9] The Public Facilities Plan Amendment also amends the portion of the Coastal Management Element under the "Coastal Natural Resources Goal," creating new Subsection 8-4.A.1.o., pertaining to waiver of upland protection requirements: The upland protection requirements detailed in Section 8-4.A.1.e through n. above may be waived by the Board of County Commissioners to the minimum extent necessary for stormwater treatment projects listed in the adopted Capital Improvements Plan, constructed by the Martin County Board of County Commissioners and reservoirs, stormwater treatment areas and related facilities constructed as part of the Comprehensive Everglades Restoration Plan in any part of Martin County. The project shall be designed to cause the least amount of negative impact to upland habitat. Waivers to existing requirements will be based on the principle of protecting the highest quality habitat and impacting the lowest quality habitat. Below are example habitats ranked from lowest to highest in quality and importance. Common upland habitat impacted by exotic vegetation. Common upland habitat, undisturbed. Special habitat (endangered, unique or rare upland habitat) shall be protected as specified in Sections 8-4.A.1.g. and 9-4.A.7.g. of the Comprehensive Plan; All projects shall follow all State and Federal regulations and permitting requirements. No such waiver to the Comprehensive Plan policies or the Land Development Regulations shall be granted that would jeopardize the continued existence of threatened or endangered species as listed by the Florida Fish and Wildlife Conservation Commission or the U.S. Fish and Wildlife Service. The Public Facilities Plan Amendment also amends the Conservation and Open Space Element and adds Subsection 9- 4.A.7.q. which provides: The upland protection requirements detailed in Section 9-4.A.7.e. through p. above may be waived by the Board of County Commissioners to the minimum extent necessary for stormwater treatment projects listed in the adopted Capital Improvements Plan, constructed by the Martin County Board of County Commissioners and reservoirs, stormwater treatment areas and related facilities constructed as part of the Comprehensive Everglades Restoration Plan in any part of Martin County. The project shall be designed to cause the least amount of negative impact to upland habitat. Waivers to existing requirements will be based on the principle of protecting the highest quality habitat and impacting the lowest quality habitat. Below are example habitats ranked from lowest to highest in quality and importance. Common upland habitat impacted by exotic vegetation. Common upland habitat, undisturbed. Special habitat (endangered, unique or rare upland habitat) shall be protected as specified in Sections 8-4.A.1.g. and 9-4.A.7.g. of the Comprehensive Plan; All projects shall follow all State and Federal regulations and permitting requirements. No such waiver to the Comprehensive Plan policies or the Land Development Regulations shall be granted that would jeopardize the continued existence of threatened or endangered species as listed by the Florida Fish and Wildlife Conservation Commission or the U.S. Fish and Wildlife Service. The Public Facilities Plan Amendment also amends Section 14-4.A.4.a. and b. of the Capital Improvements Element and also adds Objective 5. Objective 4 begins: "Manage the land development process to insure that all development receives public facility levels of service equal to, or greater than the standards adopted in Policies b., c. and d. of Objective 1." Amended Policies a. and b. to Objective 4 and new Objective 5 provide: Policy: All Category A and B public facility capital improvements shall be consistent with the goals, objectives and policies of the appropriate elements of this Comprehensive Plan or as specified in Objective 5. below. Policy: The County shall integrate its land use planning and decisions with its plans for public facility capital improvements by developing and adopting the programs listed in the "Implementation Programs" which are adopted as part of this Capital Improvements Element. The location of, and level of service provided by projects in the Schedule of Capital Improvements shall maintain adopted standards for levels of service for existing and future development in a manner and location consistent with the Future Land Use Element of this Comprehensive Plan. Individual land use decisions shall be consistent with Objective 5., below. OBJECTIVE Establish a procedure for balancing Comprehensive Growth Management Plan (Comprehensive Plan) goals, objectives, and policies for public facility capital improvement projects. Policy: When a public facility capital improvement is necessary, but the specific locational requirements or site development requirements for it make compliance with each and every policy of this Comprehensive Plan either physically impractical or financially unfeasible, the necessity for such a public facility capital improvement may require the location and construction of it even though a goal, objective or policy of this Comprehensive Plan would prohibit other types of development. The need for public facility capital improvements must be balanced with the benefits of other development requirements. Therefore, notwithstanding any other provisions of this Comprehensive Plan concerning concurrency with Level of Service requirements or adverse impacts to wetland or upland habitat, the Board of County [C]ommissioners may approve the location and construction of a public facility capital improvement upon their determination that the following met: The facility is listed in the adopted Capital Improvement Plan. The site for the proposed public facility capital improvement is within the Primary or Secondary Urban Services District. The facility site has been evaluated based on the following criteria: Project specific requirements including, but not limited to, location within facility service area, minimum facility size requirements, co-location with existing facilities, facility siting or design requirements, operational requirements and state or federal funding and regulatory requirements; Impact on environmental resources, and the ability to mitigate negative impacts; Future land use designation and zoning district; and Relative cost of alternative sites including the cost of mitigating or restoring natural resources. The design and layout of the proposed facility is the least disruptive to wetland and upland habitats. Where negative impacts to wetland and upland habitats cannot be avoided, such impacts shall be minimized and mitigated in accordance with state and federal permitting requirements. Impacts to lower quality habitat shall be considered before impacts to higher quality habitat. Below are example habitats ranked from lowest to highest in quality and importance. Common upland habitat impacted by exotic vegetation. Common upland habitat, undisturbed. Wetland buffers degraded with exotic vegetation. Wetland buffers, undisturbed. Wetlands, isolated and degraded. Wetland systems, large and disturbed. Wetland systems, large and undisturbed. Wetland quality will be assessed using criteria established by the State of Florida. The construction of the proposed facility shall not jeopardize the continued existence of threatened or endangered species as listed by the Florida Fish and Wildlife Conservation Commission or the U.S. Fish and Wildlife Service. The design and construction of the proposed facilities complies with: All State and Federal regulations and permitting requirements; Comprehensive Plan policies contained in Section 8-4.A.8. regarding the protection of historical resources; Comprehensive Plan policies contained in Section 8-4.B.1., regarding the location of public facilities within the Coastal High Hazard Area of the County; Comprehensive Plan policies contained in Section 8- 4.A.1.g. and 9-4.A.7.g. of the Comprehensive Plan concerning the protection of endangered, unique or rare upland habitat; and (e) Compliance with Sections 8- 4.A.1.c. and 9-4.A.7.c. of the Comprehensive Plan concerning the protection of wetlands of special concern. The facility site has been selected as part of a review of alternative sites and, based on the criteria listed above, has been found to be the site most appropriate for the facility. In summary, the Public Facilities Plan Amendment has two parts. The first part amends the FLUE, the Coastal Management Element, and the Conservation and Open Space Element (in identical ways--see, e.g., Subsection (h)-wetlands and Subsections o. and q.-uplands) to provide for limited waivers and exceptions to the wetlands and uplands protection provisions of the Plan for stormwater treatment projects (STAs) constructed by the Martin County Board of County Commissioners and related facilities constructed as part of the Comprehensive Everglades Restoration Plan (CERP) in Martin County subject to several conditions. The second part of the Public Facilities Plan Amendment creates, as part of the CIE, Chapter 14, an alternative method of determining consistency and special planning criteria for the siting and development of certain types of public facilities which are located within the Urban Services District (USD), i.e., within the PUSD and SUSD. Is the Public Facilities Plan Amendment "in compliance?" Public facilities must be built to implement the Goals, Objectives, and Policies (GOPs) of the Plan and provide the necessary services to the citizens of Martin County. There is evidence that, at times, one or more of the specific requirements of the Plan have inhibited the placement of public facilities where the facility would best serve the overall pubic good. Martin County has grown by more than 25 percent in the last ten years, and much of that growth, especially within the last 20 years, has been concentrated inside the USD, thereby reducing the available vacant land for public facilities. In the main, this can be attributed to the application of Plan policies to manage growth. In Martin County, based on a draft Population Technical Bulletin-December 2001, population growth is projected to continue at a rate of approximately 2.56 percent per year with a total county weighted average population of 201,289 by the year 2015, compared to a total county weighted average population of 140,285 for the census population of April 1, 2000. (A weighted average is used to account for peak population which includes the permanent population plus a percent of the peak population.) It is likely that planning for the next 15 years will be more difficult because Martin County's Plan, by its terms, has kept growth inside the USD and has pushed growth onto the least environmentally sensitive sites and the previously impacted lands within the USD. The increase in population within the USD has also proportionally increased the need for public services and public facilities to support the services. Martin County planning staff has determined that many vacant parcels remaining within the USD have not been developed because of the existing environmental protections (for wetlands and uplands) in the Plan which limit development potential. Development of such vacant parcels for public facilities brings two or more public needs or interests into competition.10 One example given is: Should wetland impacts occur within the USD or should a fire station, a park or a library be built on the outer edges of the USD or outside the USD to avoid wetland impacts? As noted by Martin County planning staff, this is a policy decision not currently available to Martin County under the existing Plan. For example, Martin County considered, over a three- to-four-year period, where to locate a fire station to serve the urbanized, yet unincorporated, area of Palm City. Considerable public funds were expended in this endeavor, analyzing potential sites for compliance with Plan policies. Fourteen sites were examined. Martin County must find and fund a site large enough to not only build a new facility but plan for future growth, as the urban area of Palm City has outgrown the capacity of the existing fire station. But, it appears that most of the sites either exceeded the budgeted amount or involved significant wetlands or other environmental issues which made the fire station not feasible. Ultimately, a site was chosen for the fire station, but could not accommodate the battalion headquarters, physically connected to the fire station. The site was selected without knowing about two small wetlands on-site. It is uncertain whether the headquarters can be built on the site in an economically feasible or physically possible manner. There are noted problems with the expansion of existing libraries, e.g., the Palm City and Hobe Sound libraries, in light of Plan and LDR requirements. In an effort to determine which Martin County Plan policies were implicated by decisions relating to the siting of public facilities, a draft Public Facilities Impact Analysis matrix was created which listed over 100 Plan policies and other parameters that must be considered. (The matrix was furnished to the Department, but is not incorporated in any of the Plan Amendments. It serves as data and analysis. See Endnote 8.) This matrix also lists the existing Plan provisions that create siting conflicts. For example, two items on the matrix concerning the preservation of wetlands and upland habitat are in conflict with the need to construct a new fire station. Martin County facilities planners often must select sites that comply with each of the Plan requirements listed in the matrix in order to provide for needed facilities. While this can be done, it cannot always be done in locations that promote sustainable growth and deter sprawl. From a planning standpoint, it has become increasingly difficult for Martin County to adjust each of the 100 policies discussed in the matrix to prevent future conflicts. In recent years, more emphasis has been placed on not only development within the USD, but development inside Community Redevelopment Areas (CRA). This has led to the establishment of a CRA in each of the following unincorporated areas: Jensen Beach, Rio, Hobe Sound, and Port Salerno. Three additional areas of Martin County are each working toward establishing a CRA, including Palm City, Indiantown, and Golden Gate. The location of public facilities in urban centers and especially CRAs are important features in the health of a sustainable community. Locating new public facilities potentially within CRAs and the USD is a legitimate policy objective. Martin County decided to abandon the matrix approach and instead adopted a Plan Amendment which establishes a procedure for balancing the Plan GOPs for public facility capital improvement projects. It is difficult to forecast the exact location for public facilities, especially in the USD. Often, there are unique locational requirements for pubic facilities, although Ms. van Vonno was not aware of a problem for siting of projects currently included in the Capital Improvements Plan (CIP) and complying with native upland habitat protections. Objective 4., Policy a. of the Capital Improvements Element, is amended to require that all Category A and now B public facility capital improvements must be consistent with the GOPs of the appropriate elements or as specified in newly created Objective 5. Category A and B public facilities are defined in the Plan to include facilities owned and operated by Martin County. See Endnote 6. (Objective 4 begins: "Manage the land development process to insure that all development receives public facility levels of service equal to, or greater than the standards adopted in Policies b., c. and d. of Objective 1.") Policy b. of Objective 4 of the same element requires, in part, individual land use decisions to be consistent with Objective 5. Objective 5 is added to the Capital Improvements Element as guidance to Martin County when seeking to balance the need for public facilities inside the USD.11 Objective 5 provides an alternative review process for capital projects to ensure that Martin County can continue to meet its public facility requirements as a local government. As a threshold issue, in order to use this alternative process, there must be a determination that a public facility capital improvement is necessary and that the specific locational requirements or site development requirements make compliance with each and every policy in the Plan "physically impractical or financially unfeasible." (A necessary public facility is one that has been approved and funded by the Commission. It is the opinion of Martin County's current Assistant County Administrator and the former Capital Projects Director that the number of projects which are likely to undergo this alternative process is relatively small.) In order for a public facility capital improvement to be considered for selection or location and construction and development pursuant to Objective 5., the criteria included in Objective 5., Policy a.(1) through (8) must be met. They are mandatory criteria. These factors are not weighted, yet they are interrelated. The public facility must be listed in the adopted CIP and the site of the proposed public facility must be located within the PUSD and the SUSD. Stormwater and other related projects described, e.g., in Policy (h), if adopted in the CIP and other conditions precedent of Objective 5 are met, may be considered under Objective 5. Objective 5 does not directly affect the Commission's decisions regarding placing facilities in the CIP. Each year, Martin County prepares a five-year CIP that is financially feasible, which includes project information for all projects scheduled in the five-year planning period as well as an updated concurrency analysis for all public facilities except roads, sewer, and water, which are done separately and on a continuing basis. All of the rest are done on an annual update and published in the CIP. Capital facility needs are based on existing and projected population figures. A five-year window of information yields an analysis regarding the current LOS and a deficit or surplus for a particular capital facility. The CIP process begins in January and generally takes most of the year to complete. Planning staff start collecting detail sheets for each project. A draft CIP is prepared initially by staff and normally three public advertised workshops are held by the Commission. Affected municipalities and the public are invited to attend the workshops. This usually occurs in February or at the latest in mid-March. The Commission will have a straw vote on the CIP, usually by April. Once the annual budget process in completed, a final resolution of the CIP and budget is prepared, and both are considered and adopted at an advertised public hearing. Whether a specific project can meet the provisions of the Plan is not likely to be known at this time and not until preliminary design work is started. Data is compiled when site selection is made and due diligence done and when pre-design functions, e.g., soil borings, are performed. Public hearings are also required when the Commission considers the actual construction of public facilities. A concurrency determination is generally made when a development order is considered. A determination is also made when there is a proposal to change a land use, e.g., on a Plan FLUM. In short, public facilities are subject to concurrency. While the subject of some differing opinions, as in the case of the School Siting Plan Amendment, public facilities which may be considered under this Plan Amendment, are subject to concurrency/LOS requirements. The language in Objective 5.a., "notwithstanding any other provisions of this Comprehensive Plan concerning concurrency with [LOS] requirements or adverse impacts to wetland or upland habitat. . . the Board. . . may approve the location and construction of a public facility. . . upon their determination that the following [(1)-(8)] are met" when read in isolation could lead to a different interpretation. However, when read in conjunction with other provisions of the Plan Amendment, including, e.g., Objective 5.a.(3)(a), it is more reasonable to conclude that concurrency requirements are not waived. On the other hand, Objective 5 establishes a different process and manner for applying concurrency to public facilities. A different manner of complying with concurrency is reasonable because a public facility project must be listed in the adopted CIP, and the Plan Amendment requires a public facility to meet project specific requirements such as concurrency. Martin County provides for the impacts of its public facilities and other public facilities by reflecting the impacts in the next CIP concurrency analysis and generating a project, if necessary, to accommodate the impact. The proposed facility site must also be evaluated based on four separate criteria, (3)(a) through (d). Under criterion (3)(a), an evaluation of the facility in light of county and state LOS requirements are considered as part of the "project specific requirements." Under criterion (3)(b), the impact of the facility on environmental resources and the ability to mitigate negative impacts is evaluated. Criterion (3)(c) requires evaluation of the facility in light of the site(s) future land use designation and zoning district. This means that a site could not be selected if the type of facility is not authorized. The design and layout of the proposed facility must be the least disruptive to wetland and upland habitats. This requirement is to be read in tandem with criterion (3)(b) which requires evaluation of the facility(s) impact on environmental resources and the ability to mitigate negative impacts; criterion (3)(d) which requires evaluation of the relative cost of alternative sites including the cost of mitigating or restoring natural resources; and the requirement in criterion (5), that negative impacts to wetland and upland habitat (other than those habitats listed, and as construed by one expert witness as "ordinary habitat") be avoided, and if they cannot be avoided, "such impacts shall be minimized and mitigated in accordance with state and federal permitting requirements." Also, pursuant to criterion (5), "[i]mpacts to lower quality habitat shall be considered before impacts to higher quality habitat." This portion of Objective 5. establishes a continuum of examples of habitats ranked from lowest to highest in quality and importance, i.e., "[c]ommon upland habitat impacted by exotic vegetation" and "[w]etland systems, large and undisturbed" are the lowest and highest ranked habitats, respectively. "Wetland quality will be assessed using criteria established by the State of Florida." Mitigation is a widely accepted way of protecting wetlands, and is specifically recognized in Rule 9J-5.013(3)(b), Florida Administrative Code, as a method to compensate for loss of wetlands functions. (Compare with the prior discussion on the School Siting Plan Amendment.) With respect to upland habitats, other than those expressly excepted from the Plan Amendment, impacts to native upland habitats are to be avoided or minimized. Only common or ordinary upland habitat may be impacted. Pursuant to criterion (6), the construction of a proposed facility shall not jeopardize the continued existence of threatened or endangered species as listed by the Florida Fish and Wildlife Conservation Commission or the U.S. Fish and Wildlife Service. In order to emphasize and clarify the intent of the Plan Amendment, specific provisions of the Plan cannot be waived, including those relating to the protection of historic resources; location of public facilities within the coastal high-hazard area of Martin County; protection of endangered, unique, or rare upland habitat; and protection of wetlands of special concern. The design and construction of any proposed public facility must comply with these requirements and all state and federal regulations and permitting requirements. (Public facilities are not exempt from the limitation on public expenditures in coastal high-hazard areas.) Finally, Objective 5 requires the selection of a public facility site which "has been found to be the site most appropriate for the facility" in light of the aforementioned criteria. As noted herein, the Public Facilities Plan Amendment also amends the FLUE, the Coastal Management Element, and the Conservation and Open Space Element (in identical ways--see, e.g., Subsection (h)-wetlands and Subsections o. and q.-uplands) to provide for limited waivers and exceptions to the wetlands and uplands protection provisions of the Plan for STAs constructed by the Martin County Board of County Commissioners and related facilities constructed as part of the CERP in Martin County, i.e., not exclusively within the PUSD or SUSD, subject to several conditions. Subsection (h) of the Plan Amendment authorizes these projects outside the USD. However, the Plan, through Section 4- 4.G.1.i., provides Policy i. which prioritizes the provision of public services and facilities and the allocation of public financial resources for public services and facilities in Martin County, first to the PUSD and then to the SUSD. Policy i. provides in part that "[p]ublic urban services which support or encourage urban development in other areas shall not be provided, except for those improvements necessary to remedy an existing deficiency." If Martin County is going to continue to discourage urban sprawl, public facilities should be accommodated within the USD, with the necessary balance of public interests and needs. Otherwise, they may need to be located in the rural and agricultural areas. Plans are now underway by Federal and State agencies to construct reservoirs and STAs in Martin County that would filter and pre-treat the water leaving Lake Okeechobee and entering the Atlantic Ocean, via the C-44 Canal, the St. Lucie River, and the Indian River Lagoon. The construction of STAs creates a potential conflict between two important goals: the public's interest in draining water out of Lake Okeechobee for flood control purposes and in controlling and pre-treating discharges before they enter the estuarine system, and the public's interest in protecting isolated freshwater wetlands and upland habitats within Martin County. As noted by Martin County planning staff: The construction of STAs creates a potential conflict between multiple "public needs." The need to drain water out of Lake Okeechobee affects counties and thousands of people throughout south and central Florida. The need to control and pre-treat discharges of nutrient freshwater before it enters the St. Lucie River and Indian River Lagoon estuarine system affects the ecological balance of the St. Lucie River and the Indian River Lagoon along with the citizens of Martin and St. Lucie Counties. The public needs mentioned above must be balanced against the need to protect isolated freshwater wetlands and upland habitat within Martin County. CERP projects are important for the benefit of Martin County in terms of providing water quality, the proper distribution and release of water, and the clean up of water. Cleaning up the Everglades is considered of vast importance. There are unique siting and locational requirements for public facilities such as stormwater facilities. For example, stormwater facilities are generally not placed on the highest grounds. They are generally in the low points in the community in terms of topography and roadways, and often are constrained because of right-of-way needs. The Department has encouraged local governments to be flexible with regard to implementation of CERP projects because of the public interest in achieving the goals of the Everglades restoration. CERP projects, which are state and federal projects, proceed through an extensive planning process, which includes an alternatives analysis so that the project maximizes general public facilities. Existing Plan policies do not provide waivers for stormwater management projects designed and constructed by local government. The Martin County Plan has one of the strongest comprehensive plans in the State of Florida with regard to protection of natural resources and some of the most stringent wetlands protection policies, exceeding the state minimum standards. Mitigation is a widely accepted way of protecting wetlands, and is specifically recognized as a method to compensate for loss of wetland functions. See Finding of Fact 141. (In terms of acreage, the Public Facilities Plan Amendment is likely to have a de minimus impact on wetland resources in Martin County.) In the Plan, mitigation of wetland impacts is permitted under limited circumstances. Prior to the Plan Amendment, there were seven listed waivers and exceptions regarding "wetland alteration[s]" and this Plan Amendment creates the eighth. The Plan Amendment provisions pertaining to stormwater projects provide waivers to the Plan GOPs concerning wetlands and uplands. Policy (h) of the Plan Amendment requires that Martin County stormwater projects and CERP projects avoid and minimize impacts to wetlands, and provides a hierarchy of habitats if impacts cannot be avoided. Projects must be designed "to cause the least amount of negative impact to wetlands." Examples of wetland habitats are ranked from lowest to highest in quality and importance. "Wetland quality will be assessed using the criteria established by the State of Florida" and "[a]ll projects shall follow all State and Federal regulations and permitting requirements," which include mitigation requirements. As in the case with all of the seven existing waivers to the wetlands policy, the persuasive evidence indicates that Policy (h) should be read in conjunction with the standard that there is no net loss of functions or the spacial extent of wetlands in Martin County. See Finding of Fact 96. The Plan Amendment (Policies o. and q.) also permit a waiver of the Plan's upland habitat protection requirements detailed in Sections 8-4.1.e. through n. and 9-4.A.7.e. through p., respectively, "to the minimum extent necessary" for stormwater projects listed in the CIP and facilities constructed as part of the CERP. Martin County also has some of the most stringent uplands protection policies in the State of Florida, with a goal of preserving 25 percent of native upland habitat on a countywide basis by 2005. See Findings of Fact 85-86. There is a significant amount of land acquisition being undertaken by Martin County, the State of Florida, and the federal government in Martin County. It is unlikely that this land will be developed. This land could contribute to Martin County being able to meet its goal of protecting 25 percent of native upland habitat on a countywide basis by 2005. All projects (regarding Policies o. and q.) "shall be designed to cause the least amount of negative impact to upland habitat." Impacts are to be avoided. The Plan Amendment specifies that waivers will be based on the principles "of protecting the highest quality habitat and impacting the lowest quality habitat." Examples are provided of habitats which are ranked from lowest to highest in quality and importance, i.e., common upland habitat impacted by exotic vegetation to common upland habitat which is undisturbed. Special habitat (endangered, unique or rare upland habitat) shall be protected as specified in the Plan. "All projects shall follow all State and Federal regulations and permitting requirements." (However, there are no State and Federal mitigation requirements for upland habitats. See Finding of Fact 88.) Also, there are no mitigation requirements in Subsections (h), o., and q., for upland habitat loss. But again, impacts to upland habitats are to be avoided. The Plan Amendment does not provide a waiver from the Plan protections afforded to special habitat (endangered, unique or rare upland habitat) as specified in Sections 8-4.A.1.g and 9-4.A.7.g. of the Plan. (For example, the Plan requires a 25 percent set aside in a preserve area for special habitat.) Similar to Objective 5, no waiver to the Plan or LDRs for Martin County stormwater facilities or CERP projects "shall be granted that would jeopardize the continued existence of threatened or endangered species as listed by the Florida Fish and Wildlife Conservation Commission or the U.S. Fish and Wildlife Service." The Public Facilities Plan Amendment affords protection to natural resources by requiring the least amount of impact and minimization and mitigation where required by permit regulations. It is at least the subject of fair debate that the Public Facilities Plan Amendment is not inconsistent with the Plan. It is at least the subject of fair debate that the data and analysis provided in this record for the Public Facilities Plan Amendment meet the statute and rule requirements. It is at least the subject of fair debate that the Public Facilities Plan Amendment provides predictable and measurable standards and are not vague. It is at least the subject of fair debate that the Public Facilities Plan Amendment will not lead to urban sprawl. Part IV of Ordinance No. 606 Petitioners claim that Part IV of Ordinance No. 606 "could result in the elimination of important policies and objectives in the Comprehensive Plan without the due process review required for Comprehensive Plan Amendments." Part IV pertains to "conflicting provisions" and states: "Special acts of the Florida Legislature applicable only to unincorporated areas of Martin County, County ordinances and County resolutions or parts thereof, and other parts of the Martin County Comprehensive Growth Management Plan in conflict with this ordinance are hereby superceded by this ordinance to the extent of such conflict." Martin County has approved amendments to Part IV in the "Stipulated Settlement Agreement" entered into by the parties in Case No. 02-1014GM resolving their differences regarding the Mixed Uses Plan Amendment 01-9 and Part IV of Ordinance No. 606. (The modified language is incorporated by reference herein.) Thus, the issue appears to be moot. The 1990 "Stipulated Settlement Agreement" In 1990, a "Stipulated Settlement Agreement" was agreed to by the parties in Department of Community Affairs, 1000 Friends of Florida, and Sally O'Connell v. Martin County, Case No. 90-2327GM. In this agreement, numerous remedial plan amendments were agreed upon by the parties. Petitioners contend that the Plan Amendments are inconsistent with the remedial amendments and thus render the entire Plan out of compliance. A plan amendment must be consistent with existing comprehensive plan provisions in order to be "in compliance." In order to determine whether plan amendments are internally consistent with the comprehensive plan, the challenged plan amendments are evaluated in the context of the entire plan, not only those provisions which were adopted pursuant to a settlement agreement. If the plan amendment has the effect of causing the entire comprehensive plan to not be "in compliance," the plan amendment, (and not the entire plan,) will not be "in compliance," because the plan and the plan amendments are measured by the same criteria. Further, consistency with the settlement agreement is not required and is not within the compliance criteria set forth in Section 163.3184(1)(b), Florida Statutes. The Plan Amendments must be consistent with the entire Plan, not the settlement agreement or the remedial amendments. As previously noted, it is at least the subject of fair debate that all of the Plan Amendments are not inconsistent with the Plan. The doctrines of res judicata and collateral estoppel do not apply to the Plan Amendments at issue in this proceeding.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued concluding that the Plan Amendments Nos. 01-11 and 01-12 adopted by Martin County pursuant to Ordinance No. 606 are "in compliance" as defined in Chapter 163, Part II, Florida Statutes, and the rules promulgated thereunder. DONE AND ENTERED this 1st day of July, 2003, in Tallahassee, Leon County, Florida. S CHARLES A. STAMPELOS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of July, 2003.
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
