The Issue The issue to be determined in this case is whether the City of St. Augustine’s proposed amendment to its Comprehensive Plan, adopted via Ordinance 2015-03, is “in compliance,” as that term is defined in section 163.3184(1)(b), Florida Statutes (2014).
Findings Of Fact Petitioner is an individual who owns property and resides in the City near the property that is the subject of the proposed amendment. Respondent City of St. Augustine is a municipality in St. Johns County, which has adopted a comprehensive plan pursuant to chapter 163, which it amends from time to time. Intervenor St. Augustine Lighthouse and Museum, Inc., is a not-for-profit Florida corporation, which owns approximately 6.5 acres of property located at 100 Red Cox Drive, St. Augustine, upon which the historic St. Augustine Light Station is located. St. Johns County, which previously owned the lighthouse property, conveyed the property to Intervenor in 2014. The lighthouse property was zoned “Government Use” while the County owned the property, which is a zoning category that requires government ownership. When the property was conveyed to Intervenor, it became “non-conforming” because it is now privately owned. Under the City’s Land Development Code, additions, modifications, reconstruction, and repairs of non-conforming structures and uses are restricted. These restrictions are an inconvenience and impediment to the periodic reconstructions and repairs required to maintain and improve the lighthouse tower and its associated historic structures. To remove the non-conforming status of the lighthouse property, Intervenor considered various options for rezoning the property. The best zoning district match was determined to be “Maritime Use” because it included “maritime museum” among the allowed uses. The Maritime Use zoning district is listed as an implementing zoning district under the future land use designation Medium Density Residential Mixed Use in the Comp Plan. Therefore, Intervenor applied for a small-scale (under ten acres) comprehensive plan amendment to amend the FLUM to change the land use designation for the lighthouse property from Recreation/Open Lands to Medium Density Residential Mixed Use. The amendment includes a number of special limitations that restrict the kind of development that can occur on the lighthouse property, including: (a) limiting the use of the property to maritime museum; (b) maximum 20 percent lot coverage; maximum individual building footprint of 7,500 square feet; large building setbacks, including setbacks of up to 190 feet to protect the Maritime Hammock in the southwestern corner of the property and a 120-foot-deep “viewshed” in front of the lighthouse tower; (e) review of any development proposal by the State Historical Preservation Officer (SHPO) and finding of “no adverse effect” by the SHPO as a condition precedent to any City development approval; and (f) a reverter of title to the County if Intervenor ceases to use the property for historic preservation. Petitioner expressed concern about the number of properties in his neighborhood that are still on septic tanks. However, whether the City should extend its sewer lines to serve Petitioner’s property is an issue that is irrelevant to the validity of the proposed amendment. To the extent Petitioner attempted to tie the existing septic tanks to the issue of whether the proposed amendment is consistent with public infrastructure provisions of the Comp Plan, he failed to show an inconsistency. The lighthouse property is already served by the City’s wastewater system. Furthermore, the proposed amendment would reduce the uses allowed under the existing land use designation for the lighthouse property, which reduces potential future demand on the wastewater system. Petitioner is also concerned about the lack of sidewalks, “traffic controls,” and stormwater management capacity. However, Petitioner did not demonstrate that the proposed amendment increases the need for sidewalks, traffic controls, and stormwater management. The more persuasive evidence shows the opposite, that the proposed amendment and its development restrictions reduce the need. For example, the proposed amendment eliminates residential densities allowed under the current FLUM designation. There is parking provided on the lighthouse property and visitors to the lighthouse are not allowed to park on adjacent streets. Signage at the lighthouse property directs departing visitors away from Petitioner’s neighborhood and the nearby elementary school. As an educational exhibit on the lighthouse property, small traditional wooden boats have been built by volunteer craftsmen using only hand tools. Petitioner contends this is an industrial use, which is not allowed under the proposed land use designation. However, construction by handcraft in this manner is not an industrial activity. It is an appropriate use in conjunction with a maritime museum.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Economic Opportunity enter a Final Order determining that the City of St. Augustine Plan Amendment 2015-03 is in compliance. DONE AND ENTERED this 16th day of July, 2015, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER 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 16th day of July, 2015. COPIES FURNISHED: Edward Ruben Anderson 60 Magnolia Drive St. Augustine, Florida 32080 (eServed) Ralf G. Brookes, Esquire Ralf Brookes Attorney 1217 East Cape Coral Parkway, Suite 107 Cape Coral, Florida 33904 (eServed) Sidney F. Ansbacher, Esquire Upchurch, Bailey and Upchurch, P.A. 780 North Ponce de Leon Boulevard St. Augustine, Florida 32084 (eServed) Jesse Panuccio, Executive Director Department of Economic Opportunity Caldwell Building 107 East Madison Street Tallahassee, Florida 32399-4128 (eServed) Robert N. Sechen, General Counsel Department of Economic Opportunity Caldwell Building, MSC 110 107 East Madison Street Tallahassee, Florida 32399-4128 (eServed) Katie Zimmer, Agency Clerk Department of Economic Opportunity Caldwell Building 107 East Madison Street Tallahassee, Florida 32399-4128 (eServed)
The Issue The issues are whether Petitioner's application for a Notice of Proposed Change to its Development of Regional Impact constitutes a substantial deviation from the criteria in Section 380.06(19)(b)1.-15., Florida Statutes, and whether the proposed change is consistent with Bay County's Comprehensive Plan.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background Petitioner, Bay Point Club, Inc. (Petitioner), is the owner of Parcels F, 9, 10, and 12 located within the Bay Point Yacht and Country Club Resort Development of Regional Impact (Bay Point DRI) in Panama City, Florida. The Bay Point DRI was approved by Respondent, Bay County (County), on July 22, 1986, and authorized the development of 2,161 residential units, 200 hotel units, 123 marina slips, and recreational facilities on approximately 946 acres. The County is responsible for issuing development orders for projects that are to undergo development of regional impact review, including amendments to development orders of previously determined DRIs, in conformity with the requirements of Section 380.06, Florida Statutes. When the original Development Order was issued in 1986, Bay Point Yacht & Country Club was the sole developer of the Bay Point DRI. Since that time, the ownership and control of the properties within the Bay Point DRI has changed, and there are now multiple owners and developers of the 36 separate development areas or parcels included within the Bay Point DRI, including Petitioner, who owns the above four parcels. The Bay Point DRI was approved by the County prior to the adoption of its Comprehensive Plan (the Plan). When the first Plan was adopted in 1991, the County recognized and incorporated the Bay Point DRI through the adoption of an overlay to the Future Land Use Map (FLUM) which delineates the boundaries of the property. As stated in Future Land Use Element Policy 3.4.5, the overlay was adopted to ensure the consistency and compatibility of the Bay Point DRI with the County's FLUM. Parcels F and 12 were designated as "Seasonal/Resort" and Parcels 9 and 10 were designated as "Residential" on the FLUM. These designations remain in effect as of the date of the final hearing. A Seasonal/Resort classification allows a broad range of uses such as beach houses, multifamily housing, condominiums, hotels, lodges, restaurants, and other similar uses, while a Residential classification permits those land uses typically associated with residential occupancy. The Bay Point DRI has been amended 15 times, which amendments cumulatively reduced by 145 the total number of residential units. None of these amendments constituted a substantial deviation from the approval given in the original Development Order, and the County has never required a corresponding amendment to its Plan, FLUM, or DRI overlay as a condition for approval for any of these changes to the DRI. In July 1993, PFP One, Inc., Petitioner's parent company, entered into a Purchase and Sale Agreement with the Federal Deposit Insurance Corporation, as manager of the FSLIC Resolution Trust Fund, to purchase Parcels F (a waterfront lot adjacent to the Bay Point Marina), 10, and 9 for $235,000. At that time, Parcels 9 and 10 were vacant, and they remain vacant today. A private membership tennis facility was operating on Parcel F through a lease agreement Petitioner inherited as a part of the purchase. These tennis facilities were closed on April 1, 2000, due to a lack of membership support. Parcel 12 was purchased by PFP One, Inc. in 1994. It contained a private clubhouse facility which had once been operational prior to the approval of the DRI, but was closed at the time of the sale. The clubhouse was remodeled by Petitioner shortly after the Parcel was purchased and reopened the same year. Due to a lack of membership support, however, the clubhouse was closed in 1996. The single-family residential portion of Bay Point begins within a few hundred feet west of the above Parcels. The Development Order currently provides the following descriptions for Parcels F, 12, 10, and 9: Parcel F: Located adjacent to the Bay Point Clubhouse, this 4.8 acre site currently supports the Bay Point Tennis Center. As a part of Bay Point's long term plan, the Tennis Center is scheduled to be moved to Area 9 in 1986. In 1987, a 70-unit condominium project designated as Port Towers is planned to be built on this waterfront site. [A] total of 97,000-sq. ft. of heated and cooled space are planned. Included will be a pool and recreation center. Building height would be restricted to not more than five stories with a majority of the project being of the two and three story height. Four, 2100 sq. ft. penthouse units, eight (8) 1,800 sq. ft. three-bedroom units, forty (40), 1400 sq. ft. two-bedroom units and eighteen (18), 1000 sq. ft. one-bedroom units are planned. There would be no restrictions of resort rental use, although it is assumed that, like Marina Club Village, the vast majority of these units will be primary and secondary homes because of pricing. Restrictive covenants for this project would be developed similar to those currently in force at Bay Point. Parcel 12: A 4-acre main clubhouse site, which is adjacent to the swimming pool, snack bar, health club and real estate facilities, is in the vested area and was substantially completed prior to July 1, 1973. Parcel 10: This one acre site is the planned location of the new Sport Center Clubhouse which will serve Bay Point's member golf facilities and the resort's tennis and health facilities. Included in the 14,000 square ft. Clubhouse will be a 90-seat restaurant and snack bar area, a health club, exercise and massage rooms, men and women's locker rooms, offices for the Director of Tennis and Golf Professional and a classroom. Additional space will house the club's sports retail center which sells both hard and soft goods associated with golf, tennis and physical exercise. Parcel 9: This 6 acre site has been set aside as the future location of the Bay Point Tennis Center. When completed, it will consist of up to 14 tennis courts, one of which will be the center court with stadium stands. The original description of Parcels F and 12 reflects that the acreage of the two sites combined is 8.83 acres. A survey completed just before the NOPC was submitted determined that the combined acreage of the two parcels was actually 9.67 acres. Petitioner has stipulated that in the event the smaller acreage number is correct, the density that will be developed on the property will be in conformity with the limitations imposed by the smaller acreage. On May 14, 2001, Petitioner filed with the County a Notification of Proposed Change to a Previously-Approved Development of Regional Impact (NOPC) under Section 380.06(19), Florida Statutes. Copies were also provided to the Department of Community Affairs (DCA) and the West Florida Regional Planning Council (Council). Under the NOPC, Petitioner proposes to change the Development Order as to Parcels F and 12 as follows: The proposed project will be a 136-unit condominium project with approximately 58 units on Parcel F and 78 units on Parcel 12. The number of units on both parcels will increase from the current 70 units authorized on Parcel F to 136 units on Parcels F and 12 combined, a cumulative increase of 66 units. Three concrete structures are planned. The center building, which is the farthest from any existing development, is 11 stories in height with a step increase to 12 stories. The two exterior buildings are six stories in height with step increases to ten stories. All improvements to the project will be built by year end 2004, which is the current build-out date for the Bay Point DRI, as amended. The existing tennis courts located on Parcel F will be reduced to four hard surface courts with separate restroom facilities. The residential units will consist of 1, 2, 3 and 4 bedroom condominiums, approximately 900 to 2,400 sq. ft. in size. Thus, the proposed change in Parcels F and 12 will increase the number of condominium units from 70 to 136, change the height limitation from 5 stories to 12 stories, and eliminate the existing tennis facility. In addition, Petitioner proposes to eliminate the swimming pool and clubhouse now located on Parcel 12 and replace them with condominiums. The NOPC also proposes to change the Development Order as to Parcels 9 and 10 in the following manner: The designations for Parcels 9 and 10 will be changed from "Tennis Complex" and "Sports Center/Clubhouse," respectively, to Recreation. These changes are sought because of the historical absence of community or public support for the existing private tennis and clubhouse facilities presently located on Parcels F and 12. Funded through annual memberships by residents of Bay Point and the public, support for these facilities has been insufficient to economically sustain them and justify their continued operation. Consequently, due to lack of membership support, the Clubhouse on Parcel 12 was closed in 1996. For the same reason, the tennis courts on Parcel F were closed April 1, 2000. Changing the designation on Parcels 9 and 10, from Tennis Complex and Clubhouse to Recreation[,] will afford the Applicant with the flexibility needed to develop new or expanded active and/or passive recreational opportunities which the residents of Bay Point are willing and able to support, and which are economically feasible. In no event, however, will the Applicant develop, or allow others to develop, recreational facilities on Parcel 9 or Parcel 10 which exceed the intensity standards authorized for the development of these properties by the original Bay Point DRI. Under these proposed changes, Parcels 9 and 10, which are predominately wetlands, will remain undeveloped and constitute a passive recreation area. The changes proposed in the NOPC will require corresponding changes to the uses originally approved for Parcels F, 12, 10, and 9 in the Bay Point DRI Development Order, including changes to Map H, the Master Development Plan Map. The changes proposed by the NOPC for the DRI Development Order, including the changes to Map H, will not require a corresponding amendment to the underlying land use designations for Parcels F and 12 (Seasonal/Resort) and Parcels 9 and 10 (Residential). The NOPC was reviewed by the Council for conformity with the requirements of Section 380.06(19)(f)4., Florida Statutes. On June 11, 2001, the Council advised the County that the changes proposed for Parcels F, 9, 10, and 12 did not appear to constitute a substantial change from the previously- approved Bay Point DRI. The DCA did not submit a written objection to the proposed NOPC. On August 7 and September 7, 2001, the County held quasi-judicial public hearings on the NOPC. At the latter meeting, the County denied the NOPC on the basis of a 2-2 tie vote regarding the question of whether the proposal constituted a substantial deviation. The County did not make any determination with respect to the question of whether the NOPC was consistent with its Comprehensive Plan. This finding was confirmed in a letter from the County Attorney's Office dated September 7, 2001, and transmitted to Petitioner on September 11, 2001. On October 11, 2001, Petitioner filed its Petition to Appeal DRI Development Order with the Florida Land and Water Adjudicatory Commission (Commission). On November 7, 2001, Intervenors, K. Earl Durden, David Allen Spencer, Harry B. Sipple, III, Unal Tutak, David W. Hill, Lucy N. Hilton, and William F. Fusselman, who all own property within the Bay Point DRI and have standing to participate, filed a Petition to Intervene. On November 8, 2001, Intervenor, Bay Point Community Association, Inc., which is the homeowners' association for the approximately 1,300 residences within the Bay Point DRI and likewise has standing to participate, filed its Petition to Intervene. These Petitions were granted by the Commission on December 19, 2001. Although the Petitions to Intervene contended that the NOPC constituted a substantial deviation requiring further DRI review by the County, that issue has been abandoned. Remaining at issue is the contention that the NOPC is inconsistent with the County's Comprehensive Plan (Plan) by generally failing to protect residential property values, promote viable neighborhoods, and maintain the community character in residential areas, as required by various Plan Objectives and Policies. Intervenors also contend that the NOPC lacks a needed stormwater plan. In more simple terms, however, Intervenors object to any high- rise development in an area surrounded by single-family residential homes and in a community (Bay Point) where no other buildings exceed seven stories in height. The characteristics of the community Bay Point is a unique, residential resort development on St. Andrews Bay in Panama City, Florida. A large portion of the land lying north of Bay Point is owned by the United States Navy; thus, Bay Point is somewhat isolated from the unplanned developments which occur in other inland areas, as well as along the Gulf of Mexico. Residential and commercial development commenced in Bay Point in 1971. To date, no high-rise buildings have been constructed in the community. Most structures are one or two stories in height, and only four buildings in Bay Point exceed two stories: the Bay Town commercial and condominium development (three stories); the Lagoon Towers condominium with sixty-three units (seven stories), which is the tallest building in Bay Point; the Marriott Legends Edge timeshare with twenty-eight units (six stories); and the Marriott Hotel (five stories). The three tallest buildings are in the extreme southeast portion of Bay Point a minimum of 1,600 feet and as far as 3,000 feet from the site of Petitioner's proposed high rise condominium buildings. When viewed from a distance, the four buildings which exceed two stories in height can barely be seen above the tree line. Bay Point is a mixed use development because it includes residential and nonresidential uses, as well as some community facilities. However, it is fair to state that Bay Point is a low-rise, low-density residential development, and it was planned as a predominately residential community under the 1986 DRI Development Order. Access to the residential part of the community is controlled through gates and a security force. Although there are some resort rental activities and tourist accommodations (a Marriott hotel), Bay Point is comprised of predominately permanent residents. There are 681 single-family homes on individual lots in the western portion of Bay Point, which are one and two-story structures comprising 79.9 percent of the development in Bay Point. The two-story single-family homes tend to be clustered along the bay or along the canals running through the development. As originally developed, commercial development made up only 10.4 percent of the land area of Bay Point. Of that total, 6.6 percent is retail and office development (such as offices, restaurants, retail shops, and a post office); 1.5 percent is commercial recreation (pro shops and golf and tennis club); and 1.7 percent is a Marriott Hotel. In addition, community facilities (including a playground for children) comprise 1.5 percent of the land area. There is also a 201-slip marina and a semi-private golf club on the premises. The "resort core" area of Bay Point refers to certain development in the Seasonal/Resort land use category containing a mixture of mainly seasonal and tourist residential, commercial, and noncommercial uses. Of the almost 1,000 acres in the Bay Point DRI, only about 24 acres were planned and approved for "resort core," or less than 15 percent of the 200 acres designated as Seasonal/Resort. The remaining 85 percent of the Seasonal/Resort area has a predominately residential character. Petitioner's project on Parcels F and 12 is far from any development that could be characterized as "resort core," and all of the development in the immediate vicinity of and surrounding Parcels F and 12 is residential development with structures not exceeding two stories in height. Thus, Petitioner cannot rely on any perceived proximity of Parcels F and 12 to the "resort core" as a basis for justifying the high-rise structures. Consistency with the Plan Intervenors contend that the NOPC is inconsistent with Future Land Use Element (FLUE) Policy 3.4.5 (which allegation is subject to an objection by Petitioner); Housing Element Objective 8.5; Housing Element Policy 8.5.1; Housing Objective 8.9 (which allegation is subject to a Motion to Strike); Stormwater Management Objectives 5E.9 and 5E.12; Stormwater Management Policies 5E.9.1, 5E.10.1, and 5E.12.1; and FLUE Policy 3.3.1. Each of these items will be addressed separately below. As a part of its 1999 Plan (which amended and updated the 1991 Plan), the County adopted special treatment zones (STZs) to be designated on the FLUM in addition to the future land use categories. The specific STZs are established pursuant to FLUE Objective 3.4, which provides that the zones are created "for purposes of dealing with unique or desirable circumstances." The unique circumstance in this case is the DRI. In the Plan, the County has either adopted or expressed its intent to adopt distinct land development regulations or land use controls for each STZ. FLUE Policy 3.4.5 establishes the Bay Point DRI STZ. This policy provides that: [t]he Bay Point Development of Regional Impact (DRI) Special Treatment Zone shall be established in order to ensure compatibility and consistency between the Bay Point DRI Development Order and the FLUM. Development in this area shall be governed by the DRI Development Order. (Emphasis supplied) The last sentence of Policy 3.4.5 was added by comprehensive plan amendment adopted on July 10, 2001. By virtue of the underscored language, the conditions and restrictions on the use and development of Parcels F, 9, 10, and 12 in the DRI Development Order in effect on July 10, 2001, are incorporated into the County's Plan. This was confirmed at hearing by the County's Planning and Zoning Manager. Thus, the maximum five-story height limitation on Parcel 12 contained in the DRI Development Order is incorporated into the Plan by reference through Policy 3.4.5. Because all three of Petitioner's proposed high-rise condominium buildings exceed the five-story height limitation for Parcel F found in the DRI Development Order in effect on July 10, 2001, the NOPC is inconsistent with Policy 3.4.5. Objective 8.5 of the Housing Element provides that all projects in the County will "preserve and protect the character, compatibility, and aesthetics of residential areas and neighborhoods through the enforcement of land use regulations." Petitioner contends that this Objective cannot apply to the development on Parcels F and 12 because these parcels are in a mixed land use category under the FLUM and therefore are not in "residential areas or neighborhood" as contemplated by the Objective. However, the Objective refers to "residential areas and neighborhoods," and not to future land use categories. Thus, the Objective is directed towards existing residential and multi-family development in Bay Point, including Intervenors' property, and must be taken into account when judging the merits of Petitioner's application. "Character" and "aesthetics" are not defined in the Plan. Rather, they are terms of art in the planning profession and are commonly understood by planning professionals. These terms refer to development as it exists, not development that could occur based on a land use category. This is because one cannot protect the character and aesthetics of a land use designation. The evidence shows that "character" consists of those attributes that lend a sense of place to an area, which people in the area can identify with that is distinguishable from other such areas. It includes such factors as type of buildings, building height and mass, the relationship of one building to another, the types of activities that go on in the area or neighborhood, the presence or absence of vegetation, the presence or absence of underground utilities, street design, architectural design, and the preservation of the long-standing stable nature of a neighborhood. "Aesthetics" are those attributes that determine whether an area is visually pleasing. The character of the Bay Point community is that of a stable, low-rise, low density, residential resort community. The buildings in Bay Point consist of individual homes and small villa or townhouse-type buildings clustered on parcels. There are no high-rise buildings in the community or beachfront property. The evidence clearly supports a finding that Bay Point is a predominately neighborhood residential community. Petitioner proposes to construct on Parcels F and 12 three separate high-rise buildings. The outer buildings are six stories at their exteriors, with step increases to ten stories at the interiors. The center building will be eleven stories at the outer edges, with a step up to twelve stories at the peak. The construction of these high-rise condominiums will be in stark contrast to, and out of harmony with, the existing low-rise, low-bulk structures which surround the proposed project and will dramatically change the low-rise, neighborhood character of Bay Point. Thus, the proposed condominiums are not consistent with Objective 8.5 in that they do not preserve the character of the existing residential development within Bay Point. Policy 8.5.1 of the Housing Element requires compatibility between types of residential structures. The Policy also requires that specific criteria be included in the County's Land Use Code "for the preservation and protection of residential areas." It further provides that these standards should ensure that "compatibility between types of residential buildings" will be maintained, and that "residential areas will be used primarily for residential purposes." As of the date of hearing, however, no standards had been adopted, although the County is now in the process of developing such criteria. Until specific criteria are adopted and included in the Land Use Code, Petitioner contends that the Policy cannot be relied upon by Intervenors. If this proposition were true, however, no existing project could be measured for compatibility, and the Policy would be meaningless. The more persuasive evidence supports a finding that in the absence of specific standards in the Land Use Code, it is appropriate to rely upon standards used by land use professionals for determining compatibility between types of residential buildings. Indeed, every land planning expert who testified at hearing agreed that a consistency determination should be made based on the guidance provided in the Objectives and Policies of the Plan. The County has addressed the subject of compatibility in Objective 3.9 and Policy 3.9.1 of the Future Land Use Element. The former provision provides that "[a]ll proposed land uses shall be compatible with adjacent conforming land uses," while the latter provision defines "compatibility" to mean "a condition in which land uses or conditions can coexist in relative proximity to each other in a stable fashion over time such that no use or condition is unduly negatively impacted directly or indirectly by another use or condition." The evidence establishes that land use planners view compatibility as meaning the relationship between buildings, uses, and activities to one another. Factors to be used in making this determination are density, building height, scale and mass, lot configuration, and building orientation. Other factors used in this determination include established development patterns, expectations that arise from established development patterns, character of the neighborhood, and stability of the neighborhood. The evidence supports a finding that the development pattern in Bay Point, the expectations of Intervenors and the community based on that development pattern, and the atypical height and mass of Petitioner's project render the proposed project incompatible with Bay Point and thus inconsistent with Objective 8.5.1 of the Plan. In making this finding, the undersigned has found that Petitioner's compatibility analysis is too narrow in scope and ignores the reality that Petitioner proposes to develop three high-rise buildings, grouped together in one location, in an established, predominately low-rise residential community. Objective 8.9 of the Housing Element requires that any project in the County "[p]rotect residential property values and ensure that each homeowner has the opportunity for quiet use and enjoyment of their residence." Thus, in order to be consistent with the Plan, Petitioner must demonstrate that its project will not impact the residential property values in Bay Point in a negative manner. To demonstrate consistency with the foregoing Objective, Petitioner's expert opined that the proposed project would infuse new capital and value into the Bay Point area thereby increasing property values. However, Petitioner's market study (Petitioner's Exhibit 12) is flawed in several respects. For example, it incorrectly defines the Bay Point neighborhood as including an intensely developed Gulf front tourist district along Thomas Drive and the east end of Highway 98 in Panama City, within a three to six mile southern radius of Bay Point, and which includes high-rise condominiums, motels, and commercial uses that are dependent on the tourist industry. The study also concludes, erroneously, that most of the condominium units in Bay Point are utilized as second homes and rental properties by absentee owners. Finally, the study uses two "comparable" projects on which to base a market analysis, one in Destin and the other in Seascape. Neither property is really comparable since both are located on the Gulf of Mexico in neighboring Walton County. The more credible evidence establishes that the threat of development of high-rise buildings on Parcels F and 12 has caused a decline in residential property values in Bay Point. Further, if the NOPC is approved, the property values will continue to decline. This decline has been exacerbated by the loss of the Bay Point community center and tennis courts, which were previously located on the lots in question. Given these considerations, it is found that the NOPC is inconsistent with Housing Element Objective 8.9, in that the NOPC does not protect property values within the community. Intervenors further contend that the NOPC is inconsistent with various Objectives and Policies in the Stormwater Management Element since the NOPC does not contain a detailed stormwater plan for the proposed project. These Objectives and Policies are designed to reduce and eliminate flooding, protect surface waters from contamination and sedimentation caused by the stormwater, and prevent future problems by regulating development. This contention has been rejected since the specific requirements for the stormwater system necessary to serve Parcels F and 12 are not properly addressed in the DRI process, but rather will be considered by the County at the time the actual construction documents for these parcels are submitted for review and permitting. Finally, Intervenors assert that the NOPC is inconsistent with Future Land Use Element Policy 3.3.1, which designates criteria for designating land use categories on the FLUM and attendant standards for development. No credible evidence was presented on this issue, and therefore the contention has been rejected. All other matters raised by Intervenors have likewise been considered and rejected.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Land and Water Adjudicatory Commission enter a final order denying Petitioner's application for a NOPC on the ground that it is inconsistent with FLUE Policy 3.4.5, Housing Element Objective 8.5, Housing Element Policy 8.5.1, and Housing Element Objective 8.9 of the Bay County Comprehensive Plan. DONE AND ENTERED this 11th day of December, 2002, in Tallahassee, Leon County, Florida. ___________________________________ DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of December, 2002. COPIES FURNISHED: Donna Arduin, Secretary Florida Land and Water Adjudicatory Commission Office of the Governor The Capitol, Suite 2105 Tallahassee, Florida 32399-0001 Kenneth D. Goldberg, Esquire 1725 Mahan Drive, Suite 201 Tallahassee, Florida 32308-5201 Michael S. Burke, Esquire Burke & Blue 221 McKenzie Avenue Panama City, Florida 32401-3128 Robert C. Apgar, Esquire Sherry A. Spiers, Esquire Law Offices of Robert C. Apgar 320 Johnston Street Tallahassee, Florida 32303-6214 Richard W. Moore, Esquire Amundsen and Gilroy, P.A. Post Office Box 1759 Tallahassee, Florida 32302-1759 Raquel Rodriguez, General Counsel Florida Land and Water Adjudicatory Commission Department of Legal Affairs The Capitol, Suite 209 Tallahassee, Florida 32399-0001
Findings Of Fact Petitioner, The Mills Development Group of Florida, Inc., owns a condominium project now under construction at 1660 Gulf Boulevard, Clearwater, Florida. The project is on the south end of Sand Key, a thin finger-like strip of land which runs in a north-south direction between the Gulf of Mexico and Clearwater Harbor. Gulf Boulevard is the principal road traversing the Key. The condominium project is situated on the west side of Gulf Boulevard and fronts the Gulf of Mexico. Petitioner proposes to construct a marina on the east side of Gulf Boulevard which fronts Clearwater Harbor. It will be used by the condominium residents and their guests. If the application is approved, Petitioner will construct a 683' x 6' boardwalk next to the seawall, which extends along the waterline on Clearwater Harbor. Extending outward from the boardwalk no more than 30 feet will be 20 catwalks providing slips for approximately 40 boats. Petitioner desires to build a boardwalk to have access to the deeper water which lies outward from the seawall and to avoid dredging activities. The boardwalk will also provide greater safety for the boaters. The proposed project lies within an area currently zoned by the City as District RM-28 (High Density Multi-Family Use District). This District was created to provide for high density apartment and condominium development use. Permitted uses and structures within the District include apartment houses, townhouse developments and accessory buildings, including recreational buildings and/or community meeting buildings. A number of special exceptions are authorized within a RM-28 District. These include, inter alia, a Type A Marina facility for pleasure craft docking. Accordingly, if the application is approved, the use will be consistent with the Land Use Plan and Zoning Ordinance. The City expressed concern that persons using the facilities may wish to park on the grassy strip which lies between Gulf Boulevard and the proposed marina which in turn will impede the traffic flow on the thoroughfare. However, adequate parking for guests and residents will be located at the condominium across the street. Further, no material change in the amount of traffic is expected to be generated by the facility. Moreover, City approval is required if Petitioner desires to provide improved parking facilities on the grassy strip in the future. Intervenor/Respondent, isle of Sand Key Condominium Association, is a condominium association located to the east of Petitioner and approximately 150 feet across the channel at the proposed marina's northern end. The Association does not object to the project itself but is concerned only with the proposed length of the boardwalk. The Association has its own marina facilities which run perpendicular with the waterway and Sand Key. If approved, the proposed boardwalk would lie directly across the waterway from the Association's facilities leaving insufficient space in the channel for expansion of its marina. The Association also contends the proposed marina, if constructed in its present design, will violate an Easement Agreement entered into in November, 1975, by the prior owner of Petitioner's property and the Association. However, this concern is beyond the scope of this proceeding.
The Issue The issues to be determined in this appeal are whether the decision of the Board to approve Flexible Development Application FLD2019-01002 (Application) filed by Edgewater Valor cannot be sustained by substantial competent evidence before the Board, or that the decision of the Board departed from the essential requirements of law.
Findings Of Fact Edgewater Valor proposes to develop an 80-unit attached dwelling with 164 associated off-street parking spaces on 2.931 acres of property it owns. The property is located at 1026 Sunset Point Road and 1919 Edgewater Drive in Clearwater, Florida. The proposal consists of three buildings and a structured parking platform with a pool and deck on the west side of the parking platform. Sixty percent of the 164 parking spaces is garage parking, with the rest as exposed surface parking. Two of the buildings, both in the T district, are proposed at a height of 86 feet measured from base flood elevation. The third building, in the MDR district, is proposed at a height of 38 feet measured from base flood elevation. The buildings in the T district are set back 152 feet from the east property line. The building in the MDR district is set back 75 feet from the east property line. The proposal includes landscaping and setbacks that exceed the Board's requirements for approval. The Application requests Level Two approval of flexibility for a building height of 86 feet from base flood elevation in the T zoning district. A Level One approval allows a building height of up to 50 feet, and up to 100 feet as a Level Two approval. The Application also requests Level Two approval of flexibility for an attached dwelling use in the MDR zoning district. The attached dwelling has a building height of 38 feet from base flood elevation, where up to 40 feet is allowed as a Level Two approval and flexibility from lot width in the MDR zoning district. Edgewater Valor owns 2.437 acres of the property which is zoned T with an underlying Comprehensive Plan Future Land Use category of Resort Facilities High (RFH). The remaining 0.494 acres is zoned MDR with an underlying Comprehensive Plan Future Land Use category of Residential Medium (RM). The property to the north of the proposed development is zoned T and is currently developed as a Comfort Suites hotel. The property to the south is zoned Office (O), MDR, and Preservation (P). There is a vacant automobile service station adjacent to the proposed development to the southwest, and a multi-family development to the south across Sunset Point Road. The property to the east is zoned MDR and P with single-family detached dwellings and attached dwellings further east along Sunset Point Road. The property to the west is zoned Commercial (C) and P. EDNA's boundaries are Sunset Point Road north to Union Street, and Edgewater Drive east to Pinellas Trail. The neighborhood consists of 400 homes that are mostly single-family, single-story detached dwellings. The proposed development would be located in the southwest corner of the neighborhood at the intersection of Edgewater Drive and Sunnydale Drive. The Comfort Suites hotel is located directly across from the proposed development on the opposite corner of Sunnydale Drive and Edgewater Drive. Sunnydale Drive travels east away from Edgewater Drive and dead-ends as a cul-de-sac with mostly single- family detached dwellings.
The Issue The issue is whether the Type B site plan for the 78-unit townhome/condominium project known as Park Terrace Townhomes should be approved.
Findings Of Fact Parties Skipper is the applicant for the Type B site plan at issue in this proceeding, No. TSP060026. Skipper owns the property on which the project will be developed, Parcel ID No. 21-23-20-417-000-0 (the project site). The City is the local government with jurisdiction over the project because the project site is located within the City limits. The Association is a voluntary neighborhood association encompassing 343 lots in an established single-family residential neighborhood generally located to the northeast of the Tharpe Street/Old Bainbridge Road intersection, adjacent to the project site. The purpose of the Association is to “preserve and enhance the quality of life in [the] neighborhoods by taking coordinated action on matters which advance the common good of all residents,” and one of the Association’s objectives is to “protect[] the neighborhood from incompatible land use and rezoning.” The Project Site (1) Generally The project site is located to the north of Tharpe Street, to the east of Old Bainbridge Road, and to the west of Monticello Drive. The project site is bordered on the south by the Old Bainbridge Square shopping center. It is bordered on the north, east, and west by the residential neighborhood represented by the Association. The project site consists of 13.91 acres. The western 11.11 acres of the project site are zoned R-4, Urban Residential. The eastern 2.8 acres of the project site are zoned RP-1, Residential Preservation. The project site is roughly rectangular in shape. It is 300 feet wide (north to south) and approximately 2,100 feet long (east to west). The project site is located within the Urban Service Area (USA) boundary. The Tallahassee-Leon County Comprehensive Plan specifically encourages infill development within the USA. The project site is designated as Mixed Use A on the future land use map in the Comprehensive Plan. Residential development of up to 20 units per acre is allowed within the Mixed Use A land use category. The project site has been zoned R-4/RP-1 since 1997 when it was rezoned from Mixed Use A as part of the City-wide rezoning of all mixed use properties. Multi-family residential was an allowable use under the Mixed Use A zoning district, as was small-scale commercial. The R-4 zoning is intended to function as a “transition” between the commercial uses to the south of the project site and the single-family residential uses to the north of the project site. The R-4 zoning district allows a wide range of residential development at a density of up to 10 units per acre. (2) Surrounding Zoning and Uses The property to the north, east, and west of the project site is zoned RP-1, and is developed with single-family residences. The neighborhood adjacent to the project site is stable and well established. Most of the homes are owner- occupied, and many of the residents are retirees. The property to the south of the project site is zoned UP-1, Urban Pedestrian, and is developed with commercial uses, namely the Old Bainbridge Square shopping center. There is an existing stormwater pond located on the northwest portion of the shopping center parcel, adjacent to the southern boundary of the project site. (3) Environmental Features on the Project Site The project site is vacant and undeveloped, except for several concrete flumes and underground pipes located in the drainage easements that run north/south across the site. The project site has been impacted by the surrounding development in that household and yard trash has been found on the site. The vegetative community on the project site is considered to be upland hardwood forest. There are a number of large trees on the project site, including pecan, cherry, pine, gum, and various types of oak trees. There are also various exotic plants species on the site, such as kudzu. The vegetative density is consistent throughout the project site. The land in the general vicinity of the project site slopes from south to north. The elevations along Tharpe Street to the south of the project site are in 220 to 230-foot range, whereas the elevations in the neighborhood to the north of the project site approximately one-quarter of a mile north of Tharpe Street are in the 140 to 160-foot range. The elevations across the R-4 zoned portion of the project site range from a high of 214 feet on the southern boundary to a low of 160 feet on the northern boundary. The southern property boundary is consistently 30 to 40 feet higher than the northern property boundary across the entire R-4 zoned portion of the project site. The slopes are the main environmental feature of significance on the project site. There are a total of 7.32 acres (319,110 square feet) of regulated slopes -- i.e., severe or significant grades -- on the project site, which is more than half of the total acreage of the site. There is a ravine that runs in a northwesterly direction across the RP-1 zoned portion of the project site. The ravine is considered to be an altered wetland area and/or altered watercourse. The regulated slopes and altered wetland/watercourse areas on the project site were depicted on a Natural Features Inventory (NFI) submitted in September 2005, prior to submittal of the site plan. The City’s biologists reviewed the original NFI, and it was approved by the City on October 13, 2005. A revised NFI was submitted in March 2007. The revised NFI removed the man-made slopes from the regulated slope areas, and made other minor changes based upon comments from the staff of the Growth Management Department. The City’s biologists reviewed the revised NFI, and it was approved by the City on August 24, 2007. The Association questioned the change in the amount of regulated slopes identified on the project site, but it did not otherwise contest the accuracy of the NFIs. Roger Wynn, the engineer of record for the project, testified that the amount of regulated slopes on the project site changed because the man-made slopes were initially included in the calculation but were later removed. That testimony was corroborated by the James Lee Thomas, the engineer who coordinated the Growth Management Department’s review of the project. The Project (1) Generally The project consists of 78 townhome/condominium units in 14 two-story buildings. It was stipulated that the density of the project is 7.02 units per acre, which is considered “low density” under the Comprehensive Plan and the LDC. The stipulated density is calculated by dividing the 78 units in the project by the 11.11 acres on the project site in the R-4 zoning district. If the entire acreage of the project site was used in the calculation, the project’s density would be 5.61 units per acre. All of the buildings will be located on the R-4 zoned portion of the project site. Five of the buildings (with 21 units) will have access to Monticello Road to the east by way of Voncile Avenue. The remaining nine buildings (with 57 units) will have access to Old Bainbridge Road to the west by way of Voncile Avenue. There is no vehicular interconnection between the eastern and western portions the project. There is no vehicular access to the project from the north or south. However, pedestrian interconnections are provided to the north and south. The only development on the RP-1 zoned portion of the project site is the extension of Voncile Avenue onto the site. The remainder of the RP-1 zoned property will be placed into a conservation easement. The Voncile Avenue extension will end in a cul-de-sac at the eastern boundary of the R-4 zoned portion of the project site. The extension will be constructed to meet the City’s standards for public roads, and it will comply with the City’s Street Paving and Sidewalk Policy. The other streets shown on the site plan are considered private drives because they are intended to serve only the project. Those streets and the internal cul-de-sacs have been designed to allow for the provision of City services - – e.g., trash, recycling, fire -– but they do not have to meet the City’s Street Paving and Sidewalk Policy. It was stipulated that the project is consistent with the City’s Driveway and Street Connection Regulations, Policies and Procedures. It was stipulated that the project is consistent with the City’s Parking Standards. The City’s Parking Standards Committee approved tandem parking spaces and an increase in the number of parking spaces in the project. It was stipulated that the project is consistent with the City’s concurrency policies and regulations. A preliminary certificate of concurrency was issued for the project on March 9, 2007. It was stipulated that the project is consistent with the City’s requirements for utilities -- e.g., water, sewer, stormwater, electricity, gas, cable -- and infrastructure for those utilities. However, the Association still has concerns regarding various aspects of the project’s stormwater management system. See Part D(3), below. (2) Site Plan Application and Review On August 4, 2005, the City issued Land Use Compliance Certificate (LUCC) No. TCC060219, which determined that 94 multi-family residential units could be developed on the R-4 zoned portion of the project site. The LUCC noted that the RP-1 zoned portion of the project site “is not eligible for multi-family development,” and that the “[a]ttainment of the full 94 units on the R-4 zoned property may be limited by the presence of regulated environmental features that will be determined via an approved Natural Features Analysis [sic].” On March 10, 2006, Skipper submitted a Type B site plan application for the project. The initial site plan included 82 multi-family units in 13 buildings; an extension of Heather Lane onto the project site to provide vehicular access to the north; vehicular access to the west by way of Voncile Avenue; and no vehicular access to the east. The Tallahassee-Leon County Planning Department (Planning Department) and other City departments expressed concerns about the initial site plan in memoranda prepared in advance of the April 10, 2006, DRC meeting at which the site plan was to be considered. A number of neighboring property owners submitted letters to the DRC and other City departments detailing their concerns about the project. A number of neighboring property owners also sent “petitions” to Skipper urging him to reduce the density of the project and to construct single-family detached units rather than multi-family units. The DRC “continued” -- i.e., deferred consideration of -- the site plan at its April 10, 2006, meeting as a result of the concerns expressed by the City departments. The site plan was also “continued” by the DRC at each of its next 10 meetings. Skipper submitted a revised site plan in February 2007 that reduced the number of units in the project from 82 to 78; eliminated the extension of Heather Lane onto the project site; added the connection to Voncile Avenue on the east; and made other changes recommended by City staff. It is not unusual for a site plan to be revised during the DRC review process. Indeed, Mr. Wynn testified that it is “very uncommon” for the initial version of the site plan to be approved by the DRC and that the approved site plan is typically an “evolution” of the initial site plan. That testimony was corroborated by the testimony of Dwight Arnold, the City’s land use and environmental services administrator. The City departments that reviewed the revised site plan -- growth management, planning, public works, and utilities -- each recommended approval of the site plan with conditions. A total of 21 conditions were recommended, many of which were standard conditions imposed on all site plans. The DRC unanimously approved the site plan with the 21 conditions recommended by the City departments at its meeting on March 26, 2007. The DRC was aware of the neighborhood’s objections to the project at the time it approved the site plan. Mr. Arnold, testified that the Growth Management Department was “extraordinarily careful” in its review of the site plan as a result of the neighborhood’s concerns. The site plan received into evidence as Joint Exhibit J13 is an updated version of the revised site plan submitted in February 2007. It incorporates all of the DRC conditions that can be shown on the site plan. For example, the updated site plan shows the “stub-out” at the southern property boundary and the pedestrian interconnections requested by the Planning Department as well as the appropriately designated handicapped parking spaces requested by the Public Works Department. The site plan review process typically takes six months, but Mr. Arnold testified that the process can take longer depending upon the number of issues that need to be addressed. Mr. Arnold testified that there is nothing unusual about the one-year period in this case between the submittal of the site plan and its approval by the DRC. Issues Raised by the Association The primary issues raised by the Association in opposition to the project are the alleged incompatibility of the proposed multi-family development with the surrounding single- family neighborhood; concerns about increased traffic in and around the neighborhood; concerns relating to the design of the project’s stormwater management system and the potential for stormwater run-off from the project to cause flooding in the neighborhood; and the alleged inadequate protection of the environmentally sensitive features on the project site. The public comment presented at the final hearing generally focused on these same issues, but concerns were also raised regarding the potential for increased crime and decreased property values in the neighborhood if college-aged students move into the proposed multi-family units on the project site. Compatibility Protecting the integrity of existing residential neighborhoods from incompatible development is a specifically emphasized “growth management strategy” in the Land Use Element of the Comprehensive Plan. Policy 2.1.1 [L] of the Comprehensive Plan promotes the protection of “existing residential areas from encroachment of incompatible uses that are destructive to the character and integrity of the residential environment.” Paragraph (c) of Policy 2.1.1 [L] requires the adoption of land development regulations to limit future higher density residential development adjoining low density residential areas. Such limitations “are to result in effective visual and sound buffering (either through vegetative buffering or other design techniques) between the higher density residential uses and the low density residential uses; [and] are to discourage vehicular traffic to and from higher density residential uses on low density residential streets.” These Comprehensive Plan provisions are implemented through the buffering requirements in LDC Section 10-177, which requires landscaping and fencing to be installed between potentially incompatible land uses. The width of the buffer and the amount of the landscaping required vary depending upon the proposed and existing land uses. The multi-family development proposed in the project at 7.02 units per acres is not inherently incompatible with the existing single-family neighborhood surrounding the project site. Indeed, as noted above, both uses are considered low density under the LDC and the Comprehensive Plan. Multi-family residential development on the project site furthers the intent of the R-4 zoning district in that it provides for a “transition” between the commercial uses in the Old Bainbridge Square shopping center to the south of the project site and the single-family residential neighborhood to the north of the project site. The Planning Department expressed concerns about the initial site plan’s compatibility with the surrounding neighborhood in its March 24, 2006, memorandum to the DRC. The memorandum recommended that the project be redesigned -- with a lower density and/or clustered single-family lots or townhomes - - in an effort to make it more compatible with the surrounding neighborhood. The Planning Department does not have the authority to require a project to be redesigned; it can only recommend that the developer consider alternative designs. The Planning Department does not have compatibility concerns with the revised site plan. Indeed, Mary Jean Yarbrough, a senior planner with 10 years of experience with the Planning Department, testified that “the site plan has changed significantly from the first submittal” and that it now “meet[s] the compatibility requirements of the comprehensive plan.” Similarly, Wade Pitt, an expert in local land use planning, testified that the project meets the compatibility requirements in the Comprehensive Plan and the LDC. Mr. Pitt also testified the project furthers the intent of the R-4 zoning district by providing a transition between the commercial uses to the south of the project site and the single-family residential uses to the north of the project site. Some of the changes in the site plan mentioned by Ms. Yarbrough that led to the Planning Department no longer having compatibility concerns with the project were the elimination of the Heather Lane interconnection; the reduction in the number of units in the project; the reduction in the size of the eastern stormwater pond; the inclusion of buffers in the project; and the elimination of the road through the project, which allowed for more extensive conservation areas in the central portion of the project site. A Type D buffer is required where, as here, the existing use is single-family and the proposed use is multi- family. The width of a Type D buffer can range from 30 to 100 feet, but the wider the buffer, the less landscaping that is required. The site plan includes a 30-foot wide buffer along the project site's northern and western property lines, as well as along the eastern border of the R-4 zoning district on the project site.1 The 30-foot Type D buffer is required to contain at least 12 canopy trees, six understory trees, and 36 shrubs for every 100 linear feet of buffer. The northern boundary of the R-4 zoned portion of the project site is approximately 1,600 feet long, which means that there will be approximately 864 plants -- 192 canopy trees, 96 understory trees, and 576 shrubs -- in the buffer between the proposed multi-family units and the neighborhood to the north of the project site. The Association contends that a 60-foot Type D buffer should have been required. However, Ms. Yarbrough persuasively testified that the 60-foot buffer actually provides less buffering because it is not required to be as densely vegetated as the 30-foot buffer provided on the site plan. Portions of the buffer shown on the site plan overlap the designated conservation areas that will be subject to the conservation easement on the project site. Mr. Arnold testified that it is not uncommon for buffers to overlap conservation areas. The conservation areas will be disturbed in those areas where the trees and shrubs are planted to comply with the landscaping requirements for the buffer. An eight-foot high fence will be constructed along the northern and western property lines. The site plan shows the fence several feet inside the property line, within the designated conservation areas. However, Mr. Arnold and City biologist Rodney Cassidy testified that the fence will have to be placed outside of the conservation areas along the property lines. LDC Section 10-177(f)(5) does not impact the placement of the fence on the property line as the Association argues in its PRO. That code section requires planting materials to be located on the outside of the fence “[w]hen residential uses buffer against other uses.” Here, the residential uses on the project are not being buffered against “other uses”; they are being buffered against the same type of use, residential. None of the six buildings on the northern side of the project site directly abut the buffer. Only one of the buildings is closer than 40 feet from the northern property line, and three of the buildings are as much as 80 feet from the northern property line. The only development actually abutting the 30-foot buffer is the retaining walls for the stormwater management ponds. The walls will be covered with vines to minimize their aesthetic impact on the adjacent properties. It is not necessary that the trees and shrubs in the buffer reach maturity before a certificate of occupancy is issued; all that is required is that the appropriate type and number of trees and shrubs are planted. The project is adequately buffered from the existing single-family residences to the north and west of the project site. The buffer requirements in the LDC have been met. In addition to the landscaped buffer and fence, impacts of the project on the surrounding neighborhood have been mitigated by the placement of parking on the interior of the site and by the elimination of the Heather Road interconnection that was in the initial site plan, which would have directed more traffic from the project onto the neighborhood streets. In sum, the more persuasive evidence establishes that the project is not inherently incompatible with the surrounding single-family uses and that its impacts on the surrounding neighborhood have been mitigated as required by the LDC. Thus, there is no basis to deny the site plan based upon the incompatibility concerns raised by the Association. Traffic Concerns There is currently considerable traffic on Old Bainbridge Road, particularly during rush hour. This makes it difficult for residents of the neighborhood north of the project site to turn left onto Old Bainbridge Road from Joyner Drive. The amount of traffic on Old Bainbridge Road is in no way unique. There are many streets in the City that have similar amounts of traffic, particularly during rush hour. Vehicles leaving the project will utilize Voncile Avenue, Joyner Drive, and Monticello Drive to access Old Bainbridge Road or Tharpe Street. Those streets are considered collector roads, not local streets. The number of vehicles expected to utilize the local streets in the neighborhood to the north of the project site will not be significant from a traffic engineering perspective. The initial version of the site plan showed Heather Lane being extended onto the project site and connected with a street running through the project. This interconnection, which is no longer part of the site plan, would have increased the amount of traffic on the surrounding neighborhood streets because Heather Lane runs through the middle of the neighborhood to the north of the project site. There are expected to be less than 50 trips entering the eastern portion of the project during the afternoon peak hour, and less than 20 trips entering the western portion of the project during the afternoon peak hour. The exiting trips during the afternoon peak hour are expected to be about half those amounts. The number of trips generated by the project fall below the one percent or 100 trip threshold in the City’s concurrency regulations. A preliminary certificate of concurrency, No. TCM060026, was issued for the project on March 9, 2007, indicating that there will be adequate capacity of roads (and other infrastructure) to serve the project. No credible evidence to the contrary was presented. LDC Section 10-247.11 requires properties in the R-4 zoning district to have vehicular access to collector or arterial streets if the density is greater than eight units per acre. Where, as here, the density of the project is less than eight units per acre, vehicular access to local streets is permitted. In any event, as noted above, access to the project site is by way of Voncile Avenue, which is considered a collector road. In sum, there is no basis to deny the site plan based upon traffic concerns because the project satisfies the City’s traffic concurrency requirements. Stormwater Management/Flooding Concerns Currently, stormwater run-off from the project site flows uncontrolled across the site, down the slope towards the neighborhood to the north that is represented by the Association. The neighborhood had severe flooding problems in the past. The City resolved those problems by reconfiguring the stormwater management system and constructing several stormwater ponds in the neighborhood. The Association is concerned that the stormwater run- off from the project will cause flooding in the neighborhood. The Association also has concerns regarding the design of the stormwater ponds and their proximity to the neighborhood. The project site is located in the upper reaches of a closed basin. As a result, the project’s stormwater management system is subject to the additional volume control standards in LDC Section 5-86(e), which requires the volume of post- development stormwater run-off from the site to be no greater than pre-development run-off. The project’s stormwater management system provides volume control, rate control, and water quality treatment. The system complies with all of the design standards in LDC Section 5-86, including the additional closed basin standards in paragraph (e) of that section. The project will retain all post-development stormwater run-off on site by capturing it and routing it to two stormwater ponds located in the north central portion of the project site. Stormwater run-off will be captured by roof collectors on the buildings and inlets on the streets and then routed to the stormwater ponds through underground pipes. The two stormwater ponds are designed with retaining walls on their north/downhill sides. The walls will have a spread footing, which was a design change recommended by Mr. Thomas to improve the functioning of the ponds. The walls will be eight to nine feet at their highest point, which is less than the 15-foot maximum allowed by LDC Section 5-86(f)(7), and they will be covered with vegetation as required by that section. Access to the stormwater ponds for maintenance is provided by way of the 20-foot wide “pond access” easements shown on the site plan for each pond. These easements meet the requirements of LDC Section 5-86(g)(2). The stormwater ponds are roughly rectangular in shape, rather than curvilinear. The shape of the ponds is a function of the retaining walls that are required because of the sloping project site. The stormwater ponds have been visually integrated into the overall landscape design for the site “to the greatest extent possible” as required by LDC Section 5-86(f)(10). The south side of the ponds will be contoured with landscaping, and the walls around the ponds will be covered with vegetation. The final design of the stormwater ponds and the retaining walls is evaluated during the permitting phase, not during site plan review. The walls must be designed and certified by a professional engineer, and the construction plans submitted during the permitting phase will include a detailed analysis of the soil types on the site to determine the suitability of the walls and to ensure the proper functioning of the ponds. The project’s stormwater management system will also collect and control the overflow stormwater run-off from the existing stormwater pond on the Old Bainbridge Square shopping center site. That run-off currently overflows out of an existing catch basin on the eastern portion of the project site and flows uncontrolled across the project site, down the slope at a rate of 6.7 cubic feet per second (CFS). After the project is developed, that run-off will flow out of a redesigned catch basin at a rate of 0.5 CFS, down the slope through a conservation area, to a graded depression area or “sump” on the northern property line, and ultimately to the existing stormwater management system along Heather Lane. Mr. Arnold and Mr. Cassidy testified that the reduced flow down the slope will benefit the conservation area by reducing erosion on the slope. Mr. Cassidy further testified that he was not concerned with the flow through the conservation easement forming a gully or erosion feature or otherwise altering the vegetation in that area, and that potential impacts could be addressed in a management plan for the conservation area, if necessary. The stormwater ponds and other aspects of the project’s stormwater management system will be privately owned and maintained. However, the operation and maintenance of the system will be subject to a permit from the City, which must be renewed every three years after an inspection. The City can impose special conditions on the permit if deemed necessary to ensure the proper maintenance and function of the system. The more persuasive evidence establishes that the project’s stormwater management system meets all of the applicable requirements in the LDC. On this issue, the testimony of Mr. Thomas and Mr. Wynn was more persuasive than the stormwater-related testimony presented on behalf of the Association by Don Merkel. Mr. Merkel, a former engineer, “eyeballed” the project site and the proposed stormwater management system; he did not perform a detailed analysis or any calculations to support his criticisms of the project’s stormwater management system. In sum, there is no basis to deny the site plan based upon the stormwater management/flooding concerns raised by the Association. Protection of Environmental Features on the Project Site The NFI is required to depict all of the regulated environmental features on the site, including the regulated slopes. The revised NFI approved by the City in August 2007 accurately depicts the environmentally sensitive features on the project site. The environmental features regulated by the City include “severe grades,” which are slopes with grades exceeding 20 percent, and “significant grades,” which are slopes with 10 to 20 percent grades. The project site contains 5.74 acres (250,275 square feet) of “significant grades” and 1.58 acres (68,835 square feet) of “severe grades.” Those figures do not include man-made slopes in the existing drainage easements across the site, which are not subject to regulation. There are 0.76 acres (33,056 square feet) of severe grades on the R-4 portion of the project site that are regulated as significant grades because of their size and location. Thus, there are a total of 6.50 acres (283,331 square feet) of slopes regulated as significant grades on the project site. LDC Section 5-81(a)(1)d. provides that 100 percent of severe grades must be protected and placed in a conservation easement, except for severe grades that are less than one- quarter of an acre in size and located within an area of significant grades that are regulated as significant grades. LDC Section 5-81(a)(2)d. provides that a minimum of 50 percent of significant grades must be left undisturbed and placed in a conservation easement. LDC Section 5-81(a)(2)d.1. provides that the significant grades to be protected are those areas “that provide the greatest environmental benefit as determined by the director [of growth management] (i.e., provides downhill buffers, protects forested areas, buffers other protected conservation or preservation areas, or provides other similar environmental benefits).” The Environmental Impact Analysis (EIA) included with the site plan shows that 100 percent of the severe slopes that are regulated as such are protected and will be placed in a conservation easement. The EIA shows that a total of 3.05 acres (133,002 square feet) of the significant grades on the project site will be impacted. That figure is 46.9 percent of the total significant grades on the project site, which means that 53.1 percent of the significant grades will be undisturbed and placed into a conservation easement. It is not entirely clear what environmental benefit is provided by some of the smaller conservation areas shown on the site plan, such as those between several of the buildings, but Mr. Cassidy testified that he took the criteria quoted above into consideration in determining that the site plan meets the applicable code requirements and is “approvable." Moreover, Mr. Arnold testified that similar “small pockets” of conservation areas are located in other areas of the City and that fencing or other appropriate measures can be taken to ensure that the areas are not disturbed. The EIA will be approved simultaneously with, and as part of the site plan. The conservation easement is not required during site plan review. Rather, LDC Section 5-81(b) requires the easement to be recorded no later than 30 days after commencement of site work authorized by an environmental permit. LDC Section 5-81(a)(2)d.1. provides that development activity in the area subject to the conservation easement is prohibited, except for “vegetation management activities that enhance the vegetation and are specifically allowed in a vegetation management plan approved by the director [of growth management].” LDC Section 5-81(b) provides that a management plan for the area subject to a conservation easement “may be approved provided the activity does not interfere with the ecological functioning of the conservation or preservation area and the activities are limited to designs that minimize impacts to the vegetative cover.” That section further provides that the management plan is to be approved “during the [EIA].” Mr. Cassidy testified that an approved management plan is required in order to plant trees in a conservation area. He further testified that impacts related to the construction of the buffer fence could be addressed in the management plan, if necessary. No management plan has been prepared or approved for the project even though there will be planting in the conservation areas that overlap the 30-foot Type D buffer. In sum, more persuasive evidence establishes that the regulated environmentally sensitive features on the project site are accurately depicted in the NFI; that the required amounts of regulated slopes are protected on the site plan; and that, subject to approval of a management plan for the plantings in the buffer as part of the EIA, the project complies with the requirements of the LDC relating to the protection of environmentally sensitive features. Other Issues The final hearing was properly noticed, both to the parties and the general public. Notice of the final hearing was published in the Tallahassee Democrat on September 9, 2007. An opportunity for public comment was provided at the final hearing, and 16 neighboring property owners spoke in opposition to the project. A number of the concerns raised by the Association and the neighboring property owners who spoke at the hearing are permitting or construction issues, not site plan issues. For example, issues related to the engineering specifications for the stormwater pond retaining walls and issues related to the protection of the conservation areas from construction impacts will be addressed and monitored as the project moves through the permitting process. Mr. Arnold testified that Association and neighboring property owners are free to provide input and express concerns on those issues to the appropriate City departments as the project moves through permitting and construction.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Planning Commission approve the Type B site plan for the Park Terrace Townhomes project, subject to the 21 conditions recommended by the DRC and additional conditions requiring: the eight-foot high buffer fence to be located on the property lines, outside of the designated conservation areas; and a management plan to be approved for the conservation areas that will be disturbed through the plantings required in the Type D buffer. DONE AND ENTERED this 7th day of November, 2007, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of November, 2007.
The Issue On February 27, 1987, petitioner issued a Notice to Show Cause which alleged that respondent had violated various provisions of Chapter 718, Florida Statutes, and Chapter 7D-17 and 7D-23, Florida Administrative Code. On March 20, 1987, respondent served petitioner with a Response to Notice to Show Cause and Request for Formal Hearing. The Notice to Show Cause and response identify the specific violations alleged and issues to be resolved as follows: CHARGE: Respondent, while in control of the association, violated Section 718.116(1)(a) and (8)(a), Florida Statutes (1985), by excusing itself from the payment of its share of common expenses pertaining to assessments on unbuilt developer-owned units in Phase VI and VII of Glenwood Manor by failing to pay assessments on the units until certificates of occupancy were issued; RESPONSE: Respondent denied that it had any liability for assessments on unbuilt developer-owned units in Phases VI and VII of Glenwood Manor Condominiums, and alleged that respondent paid assessments on developer-owned units commencing with the creation of the unit pursuant to Section 718.403, Florida Statutes (1985). CHARGE: Respondent, while in control of the association, violated Section 718.112(2)(k), Florida Statutes (1980 Supp.), Section 718.112(2)(f), Florida Statutes (1985), and Rule 7D- 23.04(2), Florida Administrative Code (1985), by failing to properly waive or fully fund reserve accounts for capital expenditures and deferred maintenance for the years 1981, 1982, 1984, 1985 and 1986; RESPONSE: Respondent denied that reserve accounts were improperly waived or funded as alleged in the notice, asserting that reserves were properly waived for the years 1981, 1982, and 1984, were not waived for the year 1985, and that respondent was without knowledge as to 1986 because the turnover of the condominium took place prior to the 1986 annual meeting. CHARGE: Respondent, while in control of the association, violated Section 718.112(2)(h), Florida Statutes (1982 Supp.), and Section 718.112(2)(g), Florida Statutes (1985), by failing to adopt budgets and make assessments for the fiscal years 1984, 1985 and 1986 in an amount no less than required to provide funds in advance for payment of all anticipated current operating expenses and all of the unpaid expenses previously incurred, in that respondent loaned the association $8,000 from May 19, 1983 to May 19, 1985, to cover operating expense, with repayment plus interest due after turnover; RESPONSE: Respondent denied that it failed to adopt budgets and make assessments for fiscal years 1984, 1985 and 1986 in amounts sufficient to provide funds in advance for payment of anticipated current operating expenses and for all of the unpaid expenses previously incurred. Respondent alleged that it adopted in good faith budgets which the association estimated would be required to meet these expenses. Respondent admitted loaning money to the association to meet the needs of the association. CHARGE: Respondent failed to follow its plan of phase development as stated in the original declaration of condominium or amend the plan of phase development, in violation of Sections 718.403(1), (2)(b), (6) and 718.110(4), Florida Statutes (1983), in that the original declaration describes Phase IV as containing eight units while the amendment adding Phase IV created only seven units; RESPONSE: Respondent denied that it failed to follow its plan of phase development as stated in the original declaration of condominium in that the Declaration of Condominium provided that the developer would have the option of constructing a swimming pool in Phase IV and that the construction of the pool would require a reduction in the number of units contained in Phase IV from eight to seven. CHARGE: Respondent violated Section 718.104(4)(f), Florida Statutes (1985), by creating a condominium in which the aggregate undivided share in the common elements appurtenant to each unit, stated as a percentage, does not equal the whole, in that Glenwood Manor consists of 55 units with each unit owning a 1/56th share of the common elements. RESPONSE: Respondent denied that it created a condominium in which the aggregate undivided shares in the common elements appurtenant to each unit did not equal the whole, and alleged that any reference to a unit owner owning 1/56th undivided share in the common elements is due to a scrivener's error which respondent would be willing to correct to clarify that each unit owner owns 1/55th undivided share in the common element. CHARGE: Respondent offered 33 condominium units for sale, and entered into purchase contracts in Phase II, III, V, VI and VIII of Glenwood Manor prior to filling the subsequent phase documents with the Division of Land Sales, Condominiums, and Mobile Homes (Division) on February 5, 1986, in violation of Section 718.502(2)(a), Florida Statutes (1984 Supp.), and Rule 7D- 17.03(2), Florida Administrative Code; CHARGE: Respondent closed on 33 units prior to obtaining Division approval on February 10, 1986, of subsequent phase documents for Phases II, III, V, VI and VII, in violation of Section 718.502(2)(a), Florida Statutes (1984 Supp.), and Rule 7D- 17.01(3), Florida Administrative Code; RESPONSE TO (6) AND (7): Respondent admitted that due to the death of one of its attorneys, it inadvertently did not file the subsequent phase documents for Phases II, III, V, VI and VII prior to offering some of those units for sale and closing on the sale, but filed the necessary documents with the Division and obtained the necessary approvals upon realizing that the documents had not been filed. CHARGE: Respondent accepted a deposit on the purchase contract for unit 605, Phase V, without filing a fully executed escrow agreement for Venice Realty, Inc., with the Division, in violation of Rule 7D-17.02(6), Florida Administrative Code. RESPONSE: Respondent admitted that due to confusion between respondent and the realtor involved, Venice Realty, Inc. inadvertently accepted a deposit on a contract for the purchase of Unit 605, Phase VI, but that prior to closing on the unit, respondent directed Venice Realty to transfer the deposit to the proper escrow agent which transfer was accomplished. Respondent requested a formal hearing on the issues thus joined, and on April 9, 1987, this matter was forwarded to the Division of Administrative Hearings for further proceedings. At the hearing, petitioner presented the testimony of Glen Turnow, a resident of Glenwood Manor Condominium and association board member; Candy McKinney, Examination Specialist with the Bureau of Condominiums; John Benton, Financial Analyst, Division of Florida Land Sales, Condominiums and Mobile Homes; and Marcel Cloutier, Secretary/Treasurer of Waterside Land Corporation. Petitioner's exhibits 1-8 were admitted into evidence. Petitioner's Exhibit No. 1, Petitioner's First Request for Admissions and responses, and petitioner's Exhibit No. 2, Petitioner's First Set of Interrogatories, were admitted into evidence as late-filed exhibits. Marcel Cloutier, an officer of Waterside Land Corporation, was accepted as the authorized representative for respondent and testified on respondent's behalf. Respondent did not enter any exhibits into evidence. A prehearing stipulation was submitted by the parties prior to the hearing. No transcript of the hearing has been filed. However, both petitioner and respondent have filed proposed findings of fact and conclusions of law, and a ruling on each of the proposed findings of fact is included in the Appendix to this Recommended Order.
Findings Of Fact At all times between October 21, 1981, and February 27, 1987, respondent was the developer, as that term is defined by Section 718.103(14), Florida Statutes (1985), of Glenwood Manor Condominium. Glenwood Manor Condominium is a phased condominium consisting of seven (7) phases with fifty-five (55) units located in Sarasota County, Florida. Between October 21, 1981, and February 17, 1986, respondent was in control of the Board of Directors of Glenwood Manor Owners Association, Inc. (Association). Control of the Board of Directors of the Association was turned over to the unit owners on February 17, 1986. The Declaration of Condominium of Glenwood Manor Condominium was recorded in the public records of Sarasota County, Florida, on October 21, 1981. Paragraph II of the Declaration of Condominium provides, in pertinent part, as follows: Developer does hereby declare the property owned by it and first described above, to be Condominium property under the Condominium Act of the State of Florida, now in force and effect, to be known as: GLENWOOD MANOR CONDOMINIUMS, hereinafter referred to as the CONDOMINIUM??, and does submit said Condominium property to Condominium ownership pursuant to said Act. Developer may, but is not obligated to create additional Phases of Development of GLENWOOD MANOR CONDOMINIUMS ... which said Phases, if any, shall be operated and managed in conjunction with this Condominium through that certain nonprofit corporation known as: GLENWOOD MANOR OWNERS ASSOCIATION, INC., and hereinafter referred to as the "ASSOCIATION." The creation of any such further Phases will merge the common elements of this Condominium with the common elements of such additional Phases. As Developer creates such additional Phases, Developer shall ... record an amendment to this Declaration of Condominium describing the lands and improvements so added and the revised percentage of owner- ship in the common elements of this Condominium as so enlarged. (e.s.) The details of the phase development are set forth on Exhibit B to the Declaration of Condominium, entitled Phase Development Exhibit, which provides as follows: This Condominium is being developed as a Phase Development under Florida Statute 718.403. The first Phase of Development, which is the Phase hereby submitted to Condominium ownership, is designated on the Condominium plat described in paragraph II of the Declaration of Condominium above as Phase I. It consists of 8 Condominium Units numbered 1 through 8. Each Unit owner will own 1/8th of the common elements and share 1/8th of the common expenses and is entitled to 1/8th of common surplus relative to this Condominium. Phase II consists of 8 proposed Condominium Units as depicted on said condominium plat. At such time as Phase II is added to this Condominium by appropriate amendment of this Declaration of Condominium, if that be the case, the two phases shall then and there be considered as merged. Upon such merger each unit shall be vested with a 1/16th ownership of the common elements of said phases as merged, bear 1/16th of the common expenses of the merged phases and be entitled to 1/16th of the common surplus of the merged phases. At such time as Phase III is added to this Condominium by appropriate amendment of this Declaration of Condominium, if that be the case, the three phases shall then and there be considered as merged. Upon such mercer each unit shall be vested with a 1/24th ownership of the common elements of said phases as merged, bear 1/24th of the common expenses of the merged phases and be entitled to 1/24th of the common surplus of the merged phases. At such time as Phase IV is added to this Condominium by appropriate amendment of this Declaration of Condominium, if that be the case, the four phases shall then and there be considered as merged. Upon such merger each unit shall be vested with a 1/32nd ownership of the common expenses of said phases as merged, bear 1/32nd of the common expenses of the merged phases and be entitled to 1/32nd of the common surlus [sic] of the merged phases. At such time as Phase V is added to this Condominium by appropriate amendment of this Declaration of Condominium, if that be the case, the five phases shall then and there be considered as merged. Upon such merger each unit shall be vested with a 1/40th ownership of the common elements of said phases as merged, bear 1/40th of the common expenses of the merged phases and be entitled to 1/40th of the common surplus of the merged phases. At such time as Phase VI is added to this Condominium by appropriate amendment of this Declaration of Condominium, if that be the case, the six phases shall then and there be considered as merged. Upon such merger each unit shall be vested with a 1/48th ownership of the common elements of said phases as merged, bear 1/48th of the common expenses of the merged phases and be entitled to 1/48th of the common surplus of the merged phases. At such time as Phase VII is added to this Condominium by appropriate amendment of this Declaration of Condominium, if that be the case, the seven phases shall then and there be considered as merged. Upon such merger each unit shall be vested with a 1/56th ownership of the common elements of said phases as merged, bear 1/56th of the common expenses of the merged phases and be entitled to 1/56th of the common surplus of the merged phases. (e.s.) The units in Phases II - VII were submitted to condominium ownership pursuant to amendments to the Declaration of Condominium filed in the public records of Sarasota County, Florida, on the following dates: First Amendment Phase II November 16, 1981 Second Amendment Phase III June 10, 1983 Third Amendment Phase IV November 3, 1983 Fourth Amendment Phases V, VI and VII April 5, 1984 Each amendment provided for the merger of the common elements of the new phase with the previous phases, listed all units included in the condominium, and indicated the new share of ownership in and expenses for the common elements of the condominium for each unit. For example, the First Amendment of Declaration of Condominium, which added Phase II, consisting of eight units, to the condominium, which initially consisted of eight units, provided: As a result of the addition of the Phase II lands to the Condominium, as set forth above, each unit of Glenwood Manor, Condominiums as amended heretofore and hereby, shall be vested with a 1/16th owner- ship of the common elements of the merged Phases I and II lands and each unit shall bear a 1/16th share of the common expenses and be entitled to a 1/16th share of the common surplus of said merged phases of development. Both the First and Second Amendments added eight units to the condominium in accordance with the Phase Development Exhibit included in the Declaration of Condominium. However, the Third Amendment, adding Phase IV, added only seven units to the condominium, resulting in a total of 31 units. The Third Amendment correctly stated that each unit "shall be vested with a 1/31st ownership of the common elements of the merged Phases I, II, III and IV lands and each unit shall bear a 1/31st share of the common expenses ..." However, when the Fourth Amendment was filed, adding Phases V, VI and VII, each consisting of eight units, the share of ownership in the common elements for each unit was stated as 1/56th, whereas the total number of units included in the condominium was correctly shown as 55. Each amendment to the Declaration of Condominium ratified and confirmed the declaration and plat "[e]xcept as expressly modified" by the amendment. Unit owner and board member Glen Turnow stated that it was his understanding that he owns 1/55th of the common elements and that each unit owner pays 1/55th of the common expenses at Glenwood Manor; however, he has no documents indicating his ownership interest to be other than 1/56th of the common elements. Although the amendment creating the units in Phases VI and VII was filed on April 5, 1984, respondent paid no monthly assessments on developer-owned units in Phases VI and VII until Certificates of Occupancy were issued for those phases. Certificates of Occupancy for Phases VI and VII of Glenwood Manor were issued on October 25, 1985, and November 13, 1985, respectively. The assessment per unit of the condominium per month was $55 from April, 1984, through August, 1985; as of September, 1985, the assessment increased to $70 per unit. For the developer-owned units in Phases VI and VII from the date of amendment until the certificates of occupancy were filed, the assessments would have been $17,182.65. At 18 percent simple interest computed from the end of the year respondent owed for the assessments to the day before turnover of the association to the owners, interest on the assessments totals $2,029.92. Respondent admitted that it paid no assessments on the units in Phase VI and VII until Certificates of Occupancy were issued. Mr. Cloutier testified that respondent did not pay the assessments because it received legal advice that a unit is not in existence until a certificate of occupancy is issued. However, the first assessment was paid on November 4, 1981, and the certificates of occupancy for the first sixteen units were not issued until December 17, 1981. Mr. Cloutier also testified that respondent relied on language in the Declaration of Condominium which excused it from paying such assessments until the certificates of occupancy were issued. However, respondent did not introduce into evidence the portion of the Declaration on which it relied. Further, the Fourth Amendment to the declaration, which added the units in Phases VI and VII to the condominium, clearly provided that each unit would bear a proportionate share of the "common expenses." In the declaration "assessment" is defined as the "share of the funds required for the payment of common expenses." Respondent admitted that it made no guarantee to unit owners at Glenwood Manor Condominium which would excuse it from payment of assessments on developer-owned units other than pursuant to the provisions of Section 718.116(8)(a)1., Florida Statutes (1985), which provides, in pertinent part, as follows: (8)(a) No unit owner may be excused from the payment of his share of the common expense of a condominium unless all unit owners are likewise proportionately excused from payment, except ... in the following cases: If the declaration so provides, a developer or other person who owns condominium units offered for sale may be excused from the payment of the share of the common expenses and assessments related to those units for a stated period of time subsequent to the recording of the declaration of condominium. The period must terminate no later than the first day of the fourth calendar month following the month in which the closing of the purchase and sale of the first condominium unit occurs ... The closing of the purchase and sale of the first unit at Glenwood Manor occurred on October 20, 1981. Reserves are monies put aside each month to provide for future replacement or repair of major items. The original budget provided for funding of reserves in the amount of $6.00 per unit per month. Funding of reserves at Glenwood Manor for 1981 was waived at a meeting of unit owners on January 10, 1982; for 1982, on January 10, 1982; for 1983 on January 10, 1983, and for 1984, on August 16, 1985. If the reserves cannot be waived retroactively, the respondent would owe $3,036.55 for reserves that were not properly waived. However, respondent made one deposit to reserves in the amount of $1,800; therefore, respondent's total liability for underfunded reserves would be $1,236.55. Between May 19, 1983, and May 20, 1985, the developer made the following loans to the association: June 19, 1983 $ 500 at 13 percent interest June 3, 1983 $ 500 at 13 percent interest August 6, 1984 $1200 at 12 1/2 percent interest September 7, 1984 $1500 at 12 1/2 percent interest September 28, 1984 $2300 at 12 1/2 percent interest March 2, 1985 $ 600 at 12 1/2 percent interest May 20, 1985 $1400 at 12 percent interest On July 14, 1983, the first two loans were repaid with interest. The loans made from the developer to the association during the years 1983, 1984 and 1985 were necessary to provide operating funds for the association. At a meeting of unit owners on August 25, 1985, it was decided that repayment of these loans would take place after turnover of control of the association to the non-developer owners. On the dates these loans were made, the percentages of units which had been sold by the developer were as follows: August 6, 1984 - 56.4 percent; September 7, 1984 - 56.4 percent; September 28, 1984 - 56.4 percent; March 3, 1985 - 60 percent; and May 20, 1985 - 61.8 percent. If the repayment of the loans were based on the percentage of units owned by the developer vis-a-vis the non- developers on the date of the loan, the developer would owe $2954.80 and the non-developer unit owners would owe $4045.20. Respondent offered 33 condominium units for sale, and entered into purchase contracts for units in Phases II, III, V, VI and VII of Glenwood Manor Condominiums, prior to February 5, 1986. Respondent closed on the sales of 33 units in Phases II, III, V, VI and VII of Glenwood Manor Condominiums prior to February 10, 1986. Respondent first filed subsequent phase documents with the Division of Florida Land Sales, Condominiums and Mobile Homes for Phases II, III, V, VI and VII of Glenwood Manor Condominium on February 5, 1986. On August 11, 1985, Venice Realty accepted a deposit from the Days for the purchase of Unit 605 at Glenwood Manor Condominium. Ms. McKinney testified that the Division's records indicated only that the Law Firm of Rosen, Able and Bryant would serve as escrow agent for sales of units at Glenwood Manor Condominium. In its answer to the charges, respondent admitted that Venice Realty was not the proper escrow agent for respondent.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered finding that respondent committed the violations alleged in Charges 1-7, finding that respondent did not commit the violation alleged in Charge 8, and imposing a civil penalty against respondent of Four Thousand, Two Hundred Fifty Dollars ($4,250), assessed as follows: For the violations set forth in the first charge, $1,000; for the violations set forth in the second charge, $1,000; for the violations set forth in the third charge, $1,000; for the violations set forth in charges four and five, $750; and for the violations set forth in charges six and seven, $500. It is further RECOMMENDED that the Final Order require that the respondent take the following affirmative action: Within sixty (60) days of the Final Order, file the appropriate documents in the public records of Sarasota County, Florida, indicating that Glenwood Manor Condominium consists of 55 units, and that each unit's share of the common elements, expenses, and surplus is 1/55th. The filing of such amendments shall comply fully with the provisions of Chapter 718, Florida Statutes, and Rule 7D-17, Florida Administrative Code. Within thirty (30) days of issuance of the Final Order, remit permanently and irretrievably to Glenwood Manor Owners' Association, Inc., the respondent's liability for assessments and reserves in the amount of $19,210.16 for assessments and $1,236.55 for reserves. Accept as full repayment of the loans made by respondent to the association, the sum of $4,045.20. DONE AND ENTERED this 4th day of March, 1988, in Tallahassee, Leon County, Florida. DIANE A. GRUBBS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of March, 1988.
Findings Of Fact Parties The Department is the state land planning agency charged with the responsibility of reviewing plans and plan amendments pursuant to Chapter 163, Part II, Florida Statutes, also known as The Local Government Comprehensive Planning and Land Development Regulation Act (Act). The Association is a non-profit Florida Corporation, whose members reside, own property, or conduct business generally within the boundaries of the City of Gainesville and specifically the College Park Neighborhood (College Park). The purpose of the Association is to maintain and improve the quality of life for the residents of College Park. The Association submitted written objections concerning the plan during the review and adoption proceedings. Further, the Association participated more in the comprehensive plan development process than any other part of the City. The City is a local government required to adopt a revised comprehensive plan pursuant to Sections 163.3164(12) and 163.3167, Florida Statutes. City Background The City is located in north central Florida and is the county seat for Alachua County. The City encompasses approximately 20,000 acres, of which approximately 3,600 acres remains vacant. The City is approximately 83%-85% "built out". The development of the remaining 15%-17% vacant and undeveloped land will be limited by constraints of soil types, floodplains and wetlands. There is an acute lack of unimproved land suitable for higher density development, necessitating the major focus of the comprehensive plan's Future Land Use Element (FLUE) upon redevelopment of underdeveloped areas of the City. As of 1991, the City had an estimated population of 92,723, with a projected population in the year 2001 of approximately 97,116. The population is more densely concentrated around the major activity centers which include the Oaks Mall area, the University of Florida (University) campus and the older central part of the City. UNIVERSITY OF FLORIDA The University and the surrounding areas, make up an area described by the plan as the University Oriented Area. The area includes the College Park neighborhood and is one of the biggest activity centers in North Central Florida. The University is the major activity generator within the City limits. The University itself occupies approximately 1,100 acres within the City limits and has an enrollment of approximately 36,000 students. The data and analysis indicates that the students and faculty of the University will play a major role in the future development of the City. The University provides on campus housing for approximately 6,800 single students in dormitories located throughout the campus. The University also provides approximately 987 units for single parent and married students. Total housing provided by the University accounts for only 18-20% of the total student population and future development of on-campus housing will be limited due to the lack of room to build future dormitory facilities. The University is heavily dependent upon "off campus" housing offered by the areas surrounding the campus to meet student housing needs. SPECIAL TRANSPORTATION AREA In order to permit further redevelopment in the University Oriented Area, the City needed a mechanism to permit that further development in view of the potential degrading of level of service standards for traffic circulation. This was particularly so since the City had experienced traffic circulation deficiencies in the University Oriented Area, including College Park. To mitigate the traffic congestion in the vicinity of the University, the City proposed to make these areas a Special Transportation Area (STA). As defined by data and analysis, an STA is a compact geographic area for which the Florida Department of Transportation (FDOT), the Florida Department of Community Affairs and the local government, in consultation with the Regional Planning Council and the Metropolitan Transportation Planning Organization, mutually agree to set specific standards for level of service standards and use and transportation services in order to reach growth management goals. By letter dated August 30, 1991, the FDOT approved an Interim STA for the central city which included the University Oriented Area and College Park. The specific strategies to be developed in the Interim STA are set forth in Traffic Circulation Element (TCE) policy 1.1.7 and read as follows: The following specific strategies and guidelines shall be applied within the Interim STA consistent with the conditions of approval by FDOT: The level of service of all arterial roadways in the Interim STA shall be evaluated using the ART by FDOT, to evaluate such traffic variables as green flow in order to determine the exact condition of each facility. This evaluation shall be done cooperatively with FDOT and the Metropolitan Transportation Planning Organization (MTPO). The City shall coordinate with the MTPO and the FDOT through the Technical Advisory Committee of the MTPO to review strategies for improved level of service such as signalization, adjustments in green dedicated turn lanes, and roundabouts. The City shall limit the development of new drive service or sales to customers while in their automobiles. In the STA, the City shall prohibit additional or expanded drive constrained roadways. Drive facilities on other roads within the STA shall be regulated by special use permit. Criteria shall include minimum separation of 400 feet for such facilities and shall provide minimal interruption of the urban streetscape. COLLEGE PARK NEIGHBORHOOD College Park consists of approximately 145 acres and is located immediately north of the University. College Park is bordered on the south by West University Avenue, on the east by NW 13th Street, on the west by NW 20th Street, and on the north by NW 5th Avenue. College Park also includes a small nine block area immediately northeast of the main boundaries. This additional area is bounded by NW 5th Avenue on the south, NW 15th Street on the west, NW 7th Avenue on the north and NW 13th Street on the east. College Park is one of the oldest residential neighborhoods in the City and has long served as a student residential area offering low to moderate apartment housing and duplex units. The area has a friendly environment for walking and biking. It has a number of crossing points to the campus and close proximity. The width of the street and the amount of on constrain the speed of the traffic to bicycling speed and walking speed so that it is compatible for walking and bicycling. The southern and eastern outermost boundaries of College Park, University Avenue and NW 13th Street respectively, consist of a mixture of commercial and institutional land uses. The western boundary, NW 20th Street, is predominantly fronted by single family residential land uses. The northern border, NW 5th Avenue, consists of single family and duplex dwellings, small apartment buildings and institutional facilities which include several churches and their ancillary buildings. Many of the single family housing units that previously existed in the core of College Park have been converted into multi- unit or garden apartment dwellings to better accommodate demands for student housing. The innermost core of College Park is almost devoid of true single family homes and the single family neighborhood character of the neighborhood has long since evolved into a student community. The large number of streets in College Park are arranged in a traditional grid pattern. Most of the streets in the neighborhood do not have curbs or gutters. COLLEGE PARK DENSITIES In 1970 the City, by ordinance, adopted the Comprehensive Development Plan for the Gainesville Urban Area (1970 Plan). The 1970 Plan had the provision of a framework for logical development decisions, both by the private and public sectors as its primary goal. The 1970 Plan in several provisions addresses the framework for allowable densities in College Park. One of those provisions, Premise C, Principle 7 provides: High density residential development should be encouraged to locate near concentrations of non-residential activities such as the University of Florida and the Central Business District, and adjacent to the major traffic arteries. Another provision, Premise B, Principle 2 provides: mixed dwelling types and housing densities should be permitted in those areas where prior planning will permit such a mixture. Prior to the 1970 Plan, the density in the innermost core of College Park was unlimited. The City Commission, in preparing the 1970 plan, determined that unlimited densities were not appropriate anywhere in the City. The actual numerical densities for College Park were established at that time by zoning regulations with the highest density being 43 units per acre in the innermost core. With the creation of the first Growth Management Act in 1975, local governments were asked to develop comprehensive plans. The City used the opportunity to enhance the existing 1970 plan. The revised plan was entitled "Gainesville Comprehensive Plan 1980 to 2000" (1980 Plan). The 1980 Plan continued to promote higher densities around the University of Florida, including College Park. The 1980 Plan also contained guiding principles which directly assisted the improvement of public facilities in College Park and incorporated recommendations made in a special neighborhood study of College Park conducted in 1975. The recommendations supported a number of zoning categories in a transitional approach, with higher densities near NW 13th Street and West University Avenue and decreasing densities moving into the core of the neighborhood. The actual densities in College Park through the zoning code followed the density transition approach with the core of the neighborhood remaining a maximum of 43 units per acre. The City also, through the revised zoning ordinance, incorporated urban design standards which contained development within the neighborhood. With the 1985 amendment of the Growth Management Act, the creation and adoption of a comprehensive plan by the City became mandatory. The City used this opportunity to improve upon the already existing 1980 Plan. In a further effort to better plan for development in College Park, the City hired renowned urban planner Andres Duany. After surveying the College Park neighborhood and interacting with the residents of the neighborhood, Duany developed the Master Plan for College Park. The Master Plan made many recommendations as to how growth should proceed within College Park. Based on the recommendations of the Master Plan, the City's 1990 comprehensive plan created a land use category for College Park which allowed up to 75 units per acre in the neighborhood core. 1990 PLAN College Park is referenced in several provisions of the 1990 plan and supporting data and analysis. In the second paragraph of the section entitled "Redevelopment" on page 38 of the Future Land Use Data And Analysis Report (accepted in evidence as Petitioner's Exhibit 1.), the following information is provided: Neighborhoods north, east, and south of the University have a large percentage of student residents, but do not accommodate a large enough share of student housing. It is especially desirable to accommodate student housing close to the University to reduce the transportation demand that student housing in outlying areas places on the City and the University. As stated earlier, students at the University of Florida are currently included in the City's population figures. As new students enroll in the University dormitories, existing students move out. These are the students that should continue to be housed near the University. Over time, this will have the effect of reducing peak hour traffic problems and help to revitalize downtown. This would also provide the density that is needed to support the mass transit system. Future Land Use Element Policy 2.4.1 of the 1990 comprehensive plan provides that the City shall prepare special area plans for certain areas of the City. Specifically, the plan in Policy 2.4.2 provides: Special Area plans for the College Park Neighborhood, . . . shall be the first priority. The Future Land Use Element goes on to specifically address development in College Park in Policies 2.4.7, 2.4.8, and 2.4.9., respectively, as follows: The City shall only allow development and redevelopment within the College Park Neighborhood that is consistent with the scale and character of the neighborhood. Residential development in the neighborhood shall be allowed in Type II buildings with 3.5 stories and Type III buildings with 2.5 stories (measured in the number of floors, each not to exceed 13 feet, floor to ceiling). * * * The following criteria shall be used to guide development in the College Park Neighborhood south of N.W. 5th Avenue: Type I buildings which allow retail, office and residential uses within four story buildings shall be allowed in areas designated Mixed Use-Low, Retail uses shall be restricted to the first 2 floors, office uses shall be allowed on all fourth floors and residential shall be allowed on the second through the fourth floor. The Type II buildings which allow office and residential uses within a 3.5 story building shall be allowed in areas designated Mixed Use-Residential, Office uses accessory to the residential use shall be restricted to the first floor. The Type III buildings which allow residential uses within a 2.5 story building shall be allowed in areas designated Residential Medium Density, Residential uses along with home occupations shall be the only uses allowed. * * * By June 1992, The City shall adopt Land Development Regulations and a Special Area Plan for the College Park Neighborhood based on a Master Plan being prepared for the neighborhood. The Special Area Plan shall be adopted by amending the Comprehensive Plan, Land Development Regulations shall establish the overall density and intensity of uses. A review of the Future Land Use Map (FLUM) indicates that the following densities and corresponding intensities are allowed in College Park: Residential Medium development is designated for land located in northern portions bordering 5th avenue at densities ranging from 8-30 units per acre. This designation also applies to predominantly all the areas in the 9 block extension of the northeast corner of College Park. Mixed Use Low Intensity development is designated along the borders of West University Avenue and NW 13th Street at a density of 8- 30 units per acre and a floor area ratio intensity of 1.00-2.00. In most areas this land use category extends into the neighborhood approximately one block. Public facilities development is designated for the one area in College Park located on NW 2nd Avenue between NW 16th Street and NW 17th Street. The maximum lot coverage in this category is 80%. Mixed use residential development is designated for the entire core area of College Park at a density of 75 units per acre with the intensity of office use not to exceed more than 10% of the total residential floor area per development. Residential low development is designated in the northwest portion of College Park at a density of 5.8 to 12 units per acre. Single family development makes up the remainder of the northwest portion of College Park at a density of 0 to 8 units per acre. The several land use designations found within the neighborhood are arranged so that the most intensive development (75 units per acre) is located in the innermost core of the neighborhood and the lesser intense development on the outermost core (8-30 units per acre). This density arrangement ensures that the adjacent neighborhoods with single family character will be buffered from the more intensive University oriented development of College Park. The major change in land use planning proposed by the 1990 plan which relates specifically to College Park is that within the mixed use residential land use category the maximum allowable densities in certain areas increased from 43 units per acre to 75 units per acre. Additionally, an intensity for commercial use of not more than 10% of the total residential floor area for the development was also added, although there is no allocation of solely commercial use in the interior of College Park. The mixed use residential category applies to approximately 36 acres within College Park. Objection to the increase in density and the addition of commercial intensity in this category forms the foundation of Petitioner's challenge. The mixed use residential category definition in FLUE Policy 2.1.1 of the comprehensive plan reads as follows: This residential district provides for a mixture of residential and office uses. Office uses that are complementary to and secondary to the residential character of the district may be allowed. An essential element of the district is orientation of structures to the street and the pedestrian character of the area. Office use as located within this district shall be scaled to serve the immediate neighborhood and pedestrians from surrounding neighborhoods and institutions. Land Development Regulations shall set the district's size; appropriate densities (up to 75 dwelling units per acre); the distribution of uses; appropriate floor area ratios; design criteria; landscaping, pedestrian, mass transit and bicycle access, and streetlighting. Land Development Regulations shall specify the criteria for the siting of public and private schools, places of religious assembly, and community facilities within this category when designated in a manner compatible with the adoption of a special area plan for that area. The intensity of office use cannot exceed more than 10 percent of the total residential floor area per development. As a review of the FLUE data and analysis reveals, land use analysis have been performed to determine the development and redevelopment possibilities within the City limits. Such analysis adequately supports the land use category designations on the FLUM. Specifically the analysis includes traffic circulation, potable water, natural groundwater aquifer recharge, sanitary sewers, stormwater and solid and hazardous waste. A plan policy is not required to contain actual data and analysis. Rather, the plan's Goals, Objectives, and Policies (GOPs) are required to be based on appropriate data and analysis. The Gainesville Urban Area Land Use Model was used to determine land use requirements. The model focused on market demand and existing and projected relationships between demand and developed space. Future land use and development was allocated by the model to nine market areas. College Park is located in Market Area 3. Data and analysis submitted by the City in support of the plan indicate that the City will require approximately 15 acres of commercial/office acreage through the year 2001. The data further indicates that there are 260 vacant acres which the FLUM designates for commercial/office usage. College Park contains approximately 5 vacant acres of land designated commercial/office land use, but no commercial/office use is required or needed in Market Area 3. The lack of projected need for the 5 acres of designated commercial/office land use in College Market would appear to suggest a conclusion that such additional commercial/office land uses should not be permitted in Area 3 and specifically College Park. However, such a conclusion ignores several other criteria which also must be factored into the analysis of the data. Much of the 260 vacant acres that could accommodate commercial/office land uses appears environmentally constrained. Therefore, in actuality many of the 260 acres will not accommodate future commercial/office development. An example of this can be seen in Market Area 5 which has a surplus of 108 vacant acres. Most of this land, however, is located near a hazardous waste Superfund site or near the airport. These areas clearly would not be appropriate for the provision of commercial/office land uses and justify planning for the accommodation of commercial/office land uses within College Park. The overall planning goals of the City include the redevelopment of urban areas and the promotion of infill and compact development. The City has made a policy decision that in order to further the regional and state planning goal of discouraging urban sprawl, commercial office development will be encouraged in College Park rather than outside of the City's central business core. Even with this new land use category, the actual increase in commercial uses will not be significantly different than what currently exists in College Park. It is not proven beyond fair debate that Policy 2.1.1 of the Comprehensive Plan and specifically the inclusion of such commercial/office land uses within College Park lacks the support of appropriate data and analysis. Traffic impacts in College Park that will be caused by the non residential uses allowed by the mixed use land use category have been analyzed by the City. The data and analysis which accompanies the TCE is replete with data concerning traffic circulation and traffic levels of service for the entire City, including College Park. The City readily acknowledges that certain areas of the City, including the University Oriented Area, have traffic circulation problems. In an effort to correct the traffic circulation deficiencies the City with the approval of FDOT created the Central City STA discussed earlier at paragraph 9. With the creation of the STA, the City analyzed the impacts of future development not only within College Park but within the entire University Oriented Community. This action establishes beyond fair debate that the City has analyzed traffic impacts. In terms of parking impacts, allowing the non-residential mixed uses will not increase the parking demands within College Park. There will be no significant increase of commercial land uses in the College Park Area over the commercial uses that already exist, absent compliance with concurrency management system requirements. If facilities are not in place at the time development of additional non-residential uses is desired, development can not proceed. Further, introduction of non-residential uses into College Park will not de-stabilize the neighborhood. Rule 9J- 5.006(4)(c), Florida Administrative Code, specifically encourages local governments to use mixed use categories, provided policies for implementing the mixed uses are included. The plan provides these in FLUE Policies 2.4.7 and 2.4.8., set forth above. These policies, combined with the requirement that any additional office use allowed in the core area of College Park be allowed only in places where people live, will directly prevent de-stabilization. Accordingly, it has not been shown to the exclusion of fair debate that allowing mixed uses in College Park will de- stabilize the neighborhood. The FLUE is required by Rule 9J-5.006(3)(c)7., Florida Administrative Code, to contain policies which implement standards or intensities of use for each land use category. In reviewing FLUE Policy 2.1.1, specifically the mixed use residential land use category, it is clear that the policy establishes a maximum density (75 units per acre) and an intensity (intensity of office use not to exceed 10% of the total residential floor area). The Mixed Use Residential Land Use category provides that the Land Development Regulations (LDRs) will control the actual implementation of such things as appropriate floor area ratios, design criteria and distribution of uses. Such language does not inappropriately defer implementation of the plan to LDRs. The Act requires that local governments adopt appropriate regulations to implement their plans. As required by Section 163.3202(2), Florida Statutes, such regulations "shall contain specific and detailed" provisions necessary to implement the adopted plan. The Plan should, and does, contain general criteria upon which LDRs will be developed. FLUE Policy 2.1.1, specifically the mixed use residential category, contains many general standards which will guide and narrow the focus of future LDRs. The City has recognized that the mixed use category criteria of FLUE Policy 2.1.1 must be implemented carefully. The plan in FLUE Policy 2.1.3 places a moratorium on zoning changes within the mixed land use categories until new LDRs are developed and the comprehensive plan amended to reflect the new LDRs. In the interim, the plan indicates that Chapter 29, City of Gainesville Code of Ordinances, shall regulate development. It is clear that Policy 2.1.1 in combination with other policies in the FLUE taken as a whole does not inappropriately defer implementation to LDRs. Increasing density from 43 to 75 units per acre in College Park will not necessarily result in overcrowding and undue concentrations of population. While the previous maximum of 43 units per acre permitted intense urban development, the increase to 75 units per acre requires compliance with design standards that were previously absent. FLUE Policy 2.4.8 establishes the design standards for use in conjunction with the 75 units per acre density. Notably, criteria in FLUE Policy 2.4.8 were incorporated into the plan at the request of the Association. Those criteria and other policies in the FLUE indicate that no undue concentration of population will be allowed. For example, as noted in Policy 2.4.7, set forth above, "[t]he City shall only allow development and redevelopment within the College Park Neighborhood that is consistent with the scale and character of the neighborhood." It has not been proven to the exclusion of fair debate that Policy 2.1.1 and the FLUE will result in overcrowding of land and undue concentration of population. Densities greater than the 75 units per acre found objectionable in College Park by Petitioner exist in several locations as illustrated by depictions on the FLUM of other neighborhoods surrounding the University which currently have densities upwards of 100 units per acre. As discussed earlier, the City is 83%-85% buildout and development on much of the remaining undeveloped land will be constrained since the land that can be developed will only accommodate low density development. To accommodate City wide future growth, the data and analysis indicates that redevelopment of already existing underdeveloped areas is necessary. Further, redevelopment and infill of areas is required to discourage urban sprawl. The data and analysis indicates that College Park is one of the few remaining underdeveloped areas where redevelopment can occur. As a result, the higher densities proposed for College Park appear justified. Just as allowing mixed uses in College Park will not result in de- stabilization, the same is true of the proposed higher densities. Although the higher density levels would, if realized, exceed the projected population for College Park, planning for this area of the City must be combined within the overall planning decisions of the City as a whole. The data and analysis clearly provides that the City has limited areas which can accommodate future high density development. The population projections for the City indicate an increase in population of approximately 10,000 people over the next 10 years. This population increase will include University students. Sound planning demands that the City not rely on the County to bear the burden of housing this future population increase and thereby promote even more urban sprawl outside of the City with further traffic problems and demands for additional services such as mass transit, police, and fire protection. Also, the higher densities in College Park are in part an effort to provide developers with an incentive to develop this area rather than the outlying urban areas. This effort is consistent with the conclusions found in the FLUE data and analysis that the FLUE must accommodate high densities close to campus. The overall impact of the increased density will be less urban sprawl, and a more efficient use of existing infrastructure. Such sound planning decisions do not show to the exclusion of fair debate that the FLUE inappropriately overallocated or that the increase in density will de-stabilize College Park. It has been alleged that FLUE Objective 2.4 and Policies 2.4.3 and 2.4.4 are not supported by data and analysis which substantiate the need for redevelopment of College Park. FLUE Objective 2.4 provides: Redevelopment shall be encouraged to promote urban infill, improve the condition of blighted areas, to reduce urban sprawl and foster compact development patterns. Policy 2.4.3 provides: Before June 1992, the City shall adopt a special area plan for the College Park neighborhood to identify the appropriate uses and intensity of uses and to provide urban design guidelines for development in the area. In the preparation of the plan the City shall consider recommendations made by the College Park Neighborhood Plan prepared by Wallace, Todd and Roberts. Policy 2.4.4 provides: The City's Future Land use Plan shall accommodate increases in student enrollment at the University of Florida and the relocation of students from the urban fringe by designating appropriate areas for high density residential development and/or appropriate mixed use development within one and half mile of the University of Florida and J. Hillis Miller Medical Center. As previously noted, the FLUE contains data and analysis which supports the allowance of mixed uses at a density of 75 units per acre within College Park. The FLUE data and analysis also justifies the City's policy decision to increase the potential for redevelopment and infill development within College Park. Housing Element (HE) data and analysis further indicates the amount of dilapidated and substandard housing conditions within College Park. As indicated by HE Map 3, the area which includes College Park contains between 16% and 30% substandard housing units. As HE Appendix C Tables 46 and 47 clearly indicate, College Park contains approximately 1,342 housing units. Of these units 23.10% are substandard or dilapidated. Based on these figures, the FLUE and HE data and analysis indicates that College Park is one of the areas in the City which should be redeveloped. It has not been shown to the exclusion of fair debate that the challenged plan provisions are not supported by data and analysis or that redevelopment is not appropriate for College Park. FLUE Policy 2.1.1 is consistent with Rule 9J- 5.006(3)(c)2., Florida Administrative Code, and provides for compatibility of adjacent land uses. The mixed use residential category and the potential densities of 75 units per acre established by the policy does not appear incompatible with the adjacent single family neighborhoods when the existing land development patterns in the area are considered. Currently, College Park is buffered from the adjacent single family neighborhoods by several churches along 5th Avenue, and J.J. Finley Elementary School. The churches make up much of the northern border of College Park. 5th Avenue itself also works as a separator between College Park and the adjacent neighborhoods. Further, although there has been no showing that the previous 43 unit per acre density caused incompatibility problems, potential compatibility issues are addressed in FLUE Policies 2.4.1, 2.4.2, 2.4.3, 2.4.7, 2.4.8, and 2.4.9. These policies interact with each other and the FLUM to form a step down in densities. This step down approach means that the lowest allowable densities in College Park will be next to the adjacent neighborhoods. The step down approach of the FLUE policies also ensures that land uses within College Park are compatible. It has not been proven to the exclusion of fair debate that FLUE Policy 2.1.1 fails to provide measures which ensure compatibility with adjacent land uses. It is alleged that Traffic Circulation Element (TCE) Policies 1.1.8 and 1.1.9 are not in compliance with Section 163.3177(3)(a), F.S., and Rules 9J- 5.007(2)(a) and (b) 9J- 5.007(3)1. and 9J-5.005(1)2., Florida Administrative Code. TCE Policy 1.1.8 provides: The City shall designate areas on the FLUM for housing, which serves the needs of employees and students within walking distance of the University. TCE Policy 1.1.9 provides: Eighteen months from the adoption of this plan the City, in cooperation with FDOT and the MTPD, shall seek permanent designation of the Central City Interim Special Transportation Area or an extension of the interim designation or the elimination of the STA. These plan provisions outline principles for correcting deficiencies in traffic circulation. TCE Policy 1.1.8 directs the City to provide housing closer to the University so that fewer trips will be entering the area from further out in the urban area, thereby eliminating some of the traffic congestion that now exists. Further, TCE Policy 1.1.9 mentions the STA which was the City and FDOT solution to the problem of correcting existing deficiencies while still allowing growth. TCE Policies 1.1.4 through 1.1.10 combine to further provide controls to prevent degradation of traffic level of service standards. It is clear beyond fair debate that TCE Policies 1.1.8 and 1.1.9 outline principles for correcting deficiencies. Degradation of level of service standards as the result of increased densities in College Park has not been shown to the exclusion of fair debate. The Mass Transit Element (MTE) data and analysis indicates that the relevant transportation bus routes for College Park include Routes 2, 5, 6, 7, 8 and 9. As shown by Table 11 of the MTE data and analysis, each of these routes currently have at a minimum a 54% excess capacity available for ridership. In fact, Route 9 has a 90% excess capacity available for ridership. While TCE Policies 1.1.8 and 1.1.9 do not specifically provide for capital improvement implementation, each plan provision does not need to trigger capital improvements or concurrency requirements. The plan however does address concurrency and the triggering of capital improvements in the Capital Improvement Element (CIE). For example, CIE Policies 1.2.1, 1.2.6 and 1.2.7 establish how capital improvements through development orders will be implemented. In part, CIE Policy 1.2.1 provides: By June 1992, the City shall issue final development orders conditioned on the following: The availability of existing public facilities associated with the adopted LOS (level of service standards); The funding of public facilities (based on existing or projected funding sources) listed in the 5 year schedule of Capital Improvements that are needed to maintain adopted level of service standards. Petitioner has alleged that FLUE Objective 1.5 and Policy 2.4.4 are not in compliance with Rules 9J-5.015(1)(a) and 9J- 5.015(2)(b), Florida Administrative Code, in that the City failed to assemble and assess data from the Alachua County School Board and the University regarding the shifting of student populations. The referenced rules require a local government to coordinate with adjacent local governments, school boards and other units of local government. Such intergovernmental coordination should address specific problems and needs within each jurisdiction and attempt to resolve the problems and needs through better plan provisions. FLUE, Objective 1.5 provides that the City will: Ensure that the future plans of state government, the School Board of Alachua County, the University of Florida, and other applicable entities are consistent with this comprehensive plan to the extent permitted by law. FLUE Policy 2.4.4 is set forth above in paragraph 49. As established by data and analysis of the Intergovernmental Coordination Element (ICE), the City coordinated planning action with the University of Florida and the Alachua County School Board. The School Board did have concerns about the City's 1990 plan designation of J.J. Finely Elementary School as a recreational facility. Through the intergovernmental coordination process, the City and School Board resolved the issue. In terms of justifying a shift of student population, the purpose of FLUE Policy 2.4.4 is not to shift student populations. Instead, the City is attempting to accommodate future population and development within College Park since the growing University population will not be completely accommodated on campus. FLUE Objective 1.5 and Policy 2.4.4 are in compliance with the intergovernmental coordination requirements of Rule 9J-5, Florida Administrative Code. MTE Goal 1 and Objective 1.4 comply with requirements of Rules 9J- 5.008(2)(b) and 9J-5.008(3)(b)1., Florida Administrative Code, and demonstrate that projected mass transportation levels of service are consistent with the proposal to locate increased student populations in College Park. MTE Goal 1 provides that the City shall: Encourage increased transit usage to reduce the impacts of private motorized vehicles on the social, cultural and natural environment, and provide basic transit for disadvantaged City residents to employment, education facilities and basic services. Objective 1.4 provides: The future land use plan shall distribute land uses in a way that promotes transit ridership. Objective 1.4 satisfies the requirements of Rule 9J- 5.008(3)(b)1., Florida Administrative Code, that the plan contain an objective to address the provision of efficient mass transit. Further, as previously noted, there is more than adequate mass transit capacity in the City's system. Petitioner has failed to prove to the exclusion of fair debate that MTE Goal 1 and Objective 1.4 do not comply with provisions of Rule 9J-5, Florida Administrative Code. Petitioner alleges that Stormwater Management Element (SME) Objective 1.3 is not in compliance with Rule 9J-5.011(2)(b)1. and 2., Florida Administrative Code, in that the plan fails to address deficiencies in stormwater and drainage in College Park or coordinate the extension of, or increase in the capacity of those facilities to meet projected future needs. SME Objective 1.3 provides: The City shall ensure that proper and adequate stormwater management facilities are provided to meet future needs. Appendix C of the SME provides a stormwater need assessment list for the City. Need number 69 of the list specifically references College Park and the need to upgrade inadequate facilities. The City made the correction of these inadequate facilities a priority. In SME Policy 1.2.2, the plan calls for a Hogtown Creek Stormwater master plan to address deficiencies. The Hogtown Creek Master Plan is further accounted for in Table 14 of the Capital Improvements Element of the Plan. Petitioner has failed to prove to the exclusion of fair debate that SME Objective 1.3 fails to address deficiencies in stormwater and drainage in College Park. A final issue raised by Petitioner is whether FLUE Objective 1.4 is in compliance with Rule 9J-5.006(3)(c)3. and 4., Florida Administrative Code, requirements for provision of adequate facilities and services to accommodate densities and intensities of residential and commercial uses in College Park with regard to drainage and stormwater management, open space and convenient on- site traffic flow and vehicle parking. FLUE Objective 1.4 reads as follows: Upon Plan adoption, the City shall ensure the provisions of services and facilities needed to meet and maintain the LOS standards adopted in this Plan. Between Plan adoption and implementation of the Concurrency Management System, the City shall adjust existing facility capacity to reflect the demand created by final development orders as they are issued. As addressed earlier, the Plan, and supporting data and analysis, make provision for adequate facilities and services to accommodate densities and intensities of residential and commercial uses in College Park with regard to these matters. Petitioner has failed to show to the exclusion of fair debate that FLUE Objective 1.4 is not in compliance. State And Regional Plans The City's comprehensive plan is consistent with, compatible with, and furthers the state comprehensive plan construed as a whole. A comprehensive plan not only has to meet the minimum criteria of Rule 9J Administrative Code and be generally found consistent with the regional policy plan, it also has to further and promote the goals within the state comprehensive plan. The promotion of infill development, maximizing existing facilities, the separation of urban and rural land uses, and downtown revitalization, are efforts in furtherance of the state comprehensive plan. Higher densities within downtown areas are generally considered to be not only sound planning principles but they achieve many of the state's goals. The plan is also consistent with, compatible with, and furthers the North Central Florida Regional Policy Plan (Regional Plan). The North Central Florida Regional Planning Council's Regional Policy Goals IV, page 1, provides that "Urban sprawl should be minimized and urban development should be directed to a designated urban development area." Regional Policy Goals 16, 4 and 11, IV.2, lists six or seven goals dealing with future development directed to urban development areas. By increasing residential densities and high intensity urban areas, the City of Gainesville Comprehensive Plan implements regional as well as state Growth Management objectives. By providing opportunities for infill development, the plan increases development of potential existing urban areas, thus discouraging urban sprawl. This also serves to encourage the redevelopment of older areas and serves to direct new population growth to areas with existing facilities, thereby promoting the full utilization of those facilities before the expansion of new facilities.
Recommendation Based on the foregoing it is RECOMMENDED that a final order be entered finding the comprehensive plan of the City of Gainesville to be in compliance. DONE AND ENTERED this 2nd day of November, 1992, in Tallahassee, Leon County, Florida. DON W.DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Fl 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of November, 1992. APPENDIX The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings. In lieu of proposed findings, Petitioner submitted a document entitled "Suggested Preliminary Finding". The document consisted of 28 pages containing unnumbered paragraphs with no citation to the record established at the final hearing, contrary to requirements of Rule 22I-6.031(3), Florida Administrative Code. Nonetheless, Petitioner's submittal has been reviewed. Many of the assertions contained in the document appeared to be a cumulative restatement of Petitioner's arguments heard at the final hearing, or proposed findings which are cumulative or subordinate to the findings of the Hearing Officer. To the extent possible, the remainder of Petitioner's suggestions have been reviewed and are addressed by the foregoing findings of fact. Respondent City's Proposed Findings. 1.-3. Accepted. 4.-6. Rejected, legal argument. 7. Accepted. 8.-9. Rejected, not supported by weight of the evidence. 10.-20 Accepted. 21. Rejected, unnecessary. 22.-24. Accepted. 25.-28. Rejected, unnecessary. 29. Accepted. 30.-34. Rejected, cumulative. 35.-45. Accepted. 46.-47. Rejected, conclusion of law. 48.-49. Rejected, unnecessary. 50.-59. Accepted. 60. Rejected, argumentative. 61.-65. Accepted. 66. Rejected, argumentative. 67.-71. Accepted. 72.-74. Rejected, argumentative. 75.-84. Accepted. 85.-86. Rejected, cumulative. 87.-90. Accepted. 91.-92. Rejected, unnecessary. Accepted. Rejected, unnecessary. 95.-96. Accepted. 97.-98. Rejected, argumentative. 99.-106. Rejected, unnecessary and cumulative. 107.-114 Accepted, not verbatim. 115. Rejected, unnecessary. 116.-135. Accepted. 136.-139. Rejected, cumulative. 140.-142. Accepted. 143.-146. Rejected, cumulative. 147.-157. Accepted. 158. Rejected, no record citation. 159.-161. Subordinate to Hearing Officer's findings. 162.-166. Adopted in substance, not verbatim. 167.-172. Adopted in substance. 173.-180. Adopted by reference. Respondent Department's Proposed Findings. 1.-26. Accepted. 27.-50. Adopted in substance, not verbatim. 51.-58. Accepted. 59. Adopted by reference. COPIES FURNISHED: Linda Loomis Shelley, Esquire Secretary Department of Community Affairs 2740 Centerview Dr. Tallahassee, Florida 32399-2100 Steven Pfeiffer, Esquire General Counsel Department of Community Affairs 2740 Centerview Dr. Tallahassee, Florida 32399-2100 Michael P. Donaldson, Esquire Assistant General Counsel Department of Community Affairs 2740 Centerview Dr. Tallahassee, Florida 32399-2100 Elizabeth A. Waratuke, Esquire Assistant City Attorney Post Office Box 1110 Gainesville, Florida 32602 Thomas D. Rider, 1624 Northwest 7th Place Gainesville, Florida 32603
Findings Of Fact Petitioner, Roland Peterson, is the owner of Lots 4, 5 and 6, Block 7, Vilano Beach, in an unincorporated area of St. Johns County, Florida. Vilano Beach lies just eastward of the City of St. Augustine, Florida, and north of St. Augustine Inlet. The three lots are adjacent to each other. By applications dated June 7, 1985 petitioner sought the issuance of three coastal construction control line permits by respondent, Department of Natural Resources, Division of Beaches and Shores (Division), to authorize construction seaward of the coastal construction control line or setback line on Lots 4, 5 and 6. More specifically, petitioner sought approval to construct a beach-side snack bar with associated beach walkover, driveway and attached decks on Lot 4, and single family residences with associated dune walkover; driveway and attached decks on Lots 5 and 6. These applications were assigned Application Numbers SJ 220, SJ 221 and SJ 222 by the Division. They were deemed to be complete on August 6, 1985. After evaluating the three applications, the Division formulated recommendations to deny the requested permits. These recommendations were adopted by the Governor and Cabinet sitting as head of the agency at its November 5, 1985 meeting. Notice of such intended action was previously forwarded to petitioner on October 23, 1985. Said notice prompted the instant proceeding. As grounds for denying the permits the Division concluded that the three projects were located seaward of the seasonal high- water line and were therefore prohibited by a law, the projects lay in an area "highly vulnerable" to a major storm; and the cumulative impact of locating these and other structures further seaward could be expected to adversely impact the beach and dune system of the Vilano Beach area. The parties have stipulated that the Division has properly calculated the seasonal high water line in the questioned area, and that petitioner's three projects lie seaward of that line. The parties have also stipulated that the three projects lie seaward of the frontal dune within the meaning of Subsection 161.053t6)(a)1., Florida Statutes (1985).
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that application numbers SJ 220, SJ 221 and SJ 222 filed by Roland Peterson to construct various structures on Lots 4, 5 and 6, Block 7, Vilano Beach in St. Johns County, Florida, be DENIED. DONE and ORDERED this 14th day of May, 1986, in Tallahassee, Florida. DONALD R. ALEXANDER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of May, 1986.
The Issue The issue is whether AHG Hotels, LLC's application for a Type B site plan and deviation should be approved.
Findings Of Fact Based upon all of the evidence, including the stipulation of counsel, the following findings of fact are determined: Background On September 11, 2002, the Development Review Committee (DRC) of Respondent, City of Tallahassee (City), approved a Type B site review application authorizing the construction of a Hampton Inn & Suites by Respondent, AHG Hotels, LLC (AHG). The DRC also granted AHG's request for a deviation from development standards contained in Section 10.6RR of the City's Zoning Code by allowing AHG to exceed the four-story height limitation and to add a fifth floor to the structure. Two other deviation requests by AHG were determined to be either inapplicable or exempt from Zoning Code requirements because of vesting, and thus they are not at issue here. On October 10, 2002, Petitioner, Capital City Hotels, Inc. (Petitioner), which owns and operates a Hilton Garden Inn near the proposed construction, timely filed a Petition for Formal Proceedings to contest the approval of the deviation request. On October 15, 2002, a determination of standing as to Petitioner was issued by the Tallahassee-Leon County Planning Commission (Commission), which will issue a final order in this matter. As stipulated by the parties at hearing, the only issue is whether AHG failed to satisfy three of the seven criteria that must be met in order for the DRC to grant a deviation. Those disputed criteria are found in paragraphs (iii)-(v) of Section 23.3 of the City's Code of Ordinances (Code) and provide as follows: The deviation requested is the minimum deviation that will make possible the reasonable use of the land, building, or structure; and The strict application of the requirements of this chapter will constitute a substantial hardship to the applicant, which hardship is not self- created or imposed; and There are exceptional topographic, soil, or other environmental conditions unique to the property; The parties agree that all other criteria for the site plan and deviation have been satisfied by AHG. In addition, a related request by AHG for a technical amendment to the boundaries of the parcel will be granted by the DRC, assuming that AHG obtains a favorable ruling in this case. History of the Property The property which is the subject of this case is identified as lot of record 454 and fronts on the west side of Lonnbladh Road, lies south of Raymond Diehl Road and several hundred feet east of Thomasville Road, and is just southeast of the major intersection of Interstate 10 and Thomasville Road in Tallahassee. The zoning for the property is Commercial Parkway (CP), a mixed-use zoning district which applies to areas exhibiting an existing development pattern of office, general commercial, community facilities, and intensive automotive commercial development abutting urban area arterial roadways with high traffic volumes. Among the numerous permitted uses in that land use category are hotels and motels. The property is part of a 7.1-acre site originally owned by Kingswood Land Partners, Ltd. (Kingswood). In January 1990, Kingswood obtained from the City a minor subdivision approval, dividing the 7.1 acres into three lots of record, including lot of record 454. The three lots consisted of a 2.44-acre lot running along most of the western portion of the property with the exception of a small area on the southern end, a 1.68-acre lot on the northeast portion of the property, and a 2.98-acre lot on the southeast portion of the property (lot of record 454). In November 1990, Kingswood received from the City a verification of vested status (vested rights certificate) for the 7.1-acre site. The vested rights certificate provided that the 7.1-acre site was exempt from the consistency and concurrency provisions of the Tallahassee-Leon County Comprehensive Plan (Plan) and was vested for an 89,887 gross square foot commercial non-medical office building and a 135- unit hotel/motel. In 1991, Kingswood utilized the vesting for a 135- unit, five-story hotel and constructed what is now known as the Cabot Lodge on the 2.44-acre lot. It also constructed on part of the southeastern 2.98-acre lot a paved area with parking places. In 1992, Kingswood conveyed to Twin Action Hotels, Inc. (Twin Action) the 2.44-acre lot which included the Cabot Lodge Hotel, but not the paved parking area on the 2.98-acre lot. The same year, Kingswood also conveyed to New Horizons Unlimited, Ltd. (New Horizons) the remaining two lots, which two lots were vested for a commercial non-medical office six- story building of 89,887 gross square feet. At the time of the conveyances of the New Horizons property and the Cabot Lodge property to New Horizons and Twin Action, respectively, these parties entered into a Grants of Reciprocal Easements dated June 23, 1992, recorded in Official Records Book 1570, at page 1072 of the Public Records of Leon County, Florida. Around 1994, the Florida Department of Transportation acquired .333 acres of the northernmost lot owned by New Horizons for a project which included realigning and four-laning Raymond Diehl Road and relocating the eastbound entrance ramp to Interstate 10, immediately in front of the Cabot Lodge lot. This acquisition reduced the New Horizons 1.68-acre lot to 1.347 acres. On October 14, 1998, the City approved a vested rights transfer request submitted by New Horizons, which provided that the New Horizons property could be used for a 107-room, four-story business hotel and 59,162 gross square feet of commercial non-medical offices, instead of the vested 89,887 gross square feet of commercial non-medical offices. Since the acquisition by New Horizons of the two remaining lots, that property has remained vacant and unimproved with the exception of the westernmost portion immediately south of the Cabot Lodge building, on which is located pavement and parking spaces. The parking spaces are not legally available to Cabot Lodge for use. The property located immediately west of the Cabot Lodge 2.44-acre lot is property which is referred to as the Thomasville Road Executive Park (Executive Park) property. On an undisclosed date, this property was divided into three separate lots by a minor subdivision approval consisting of Parcel A on which was constructed the Unisys Building and parking spaces, Parcel B which is now improved with a Hilton Garden Inn owed by Petitioner, and Parcel C which remains undeveloped. In 1996, Petitioner filed its site plan application to develop Parcel B. Included in the site plan application was a request for a technical amendment to adjust the boundary lines between Parcels A and B of the Executive Park property. Like AHG has done here, Petitioner also requested a deviation to the then height limitation of 45 feet, requesting that the City allow it to build the building 50 feet high, rather than the required 45 feet. Although the property on which the Hilton Garden Inn is now located was vested for a three-story commercial office building, subject to CP zoning, the City agreed that the vesting could also be used for a hotel use consisting of four stories rather than three stories. The City granted Petitioner's request to allow it to build a four-story hotel on Parcel B. It also granted Petitioner a height deviation so that the midpoint or peak of the roof would be not higher than 50 feet. However, the top of the roof is 59 feet, 6 inches. The facility has 99 rooms. No objection was made by Cabot Lodge, Unisys, or New Horizons to Petitioner's application for approval of its site plan, the technical amendment adjustment to boundary parcels, the use of the property for a four-story hotel instead of a three-story office building, or the granting of a height deviation. In April 2002, AHG entered into a contract with New Horizons for the purchase of 2.23 acres of the southeastern property owned by New Horizons for approximately $1.5 million. The 2.23 acres is part of the 2.98-acre lot of record known as lot 454. The application On July 5, 2002, AHG filed with the DRC its site plan application to construct a 122-room, five-story hotel on the 2.98-acre lot. On the same day, it filed a Deviation from Development Standard Request asking that it be allowed to construct a five-story hotel on the parcel rather than being limited to a four-story hotel, as required by the development standards for the CP zoning district in which the property is located. New Horizons has also requested a technical amendment to the boundaries of the 1.68-acre lot and the 2.98- acre lot that would result in the 2.98-acre lot on which the hotel will be built being reduced to 2.23 acres. The DRC intends to approve that request, assuming that AHG prevails in this proceeding. AHG's site plan uses the largest footprint for construction of the hotel building that is allowed under current applicable Code restrictions relating to the amount of impervious surface allowed to be constructed on a 2.23-acre lot, as well as the required amount of green space which must be maintained. If current zoning rules and regulations are strictly applied, AHG would be unable to have more than approximately 107 rooms in the hotel, utilizing the maximum footprint and only four stories on the 2.23 acres. The only way to accommodate the construction of 122 rooms is to obtain a deviation from the current restriction of four floors and allow a fifth floor to be built. The proposed height of construction of the five- story hotel will be 53 feet, 10 inches, except for several small areas of parapet walls which will be no higher than 58 feet, 4 inches. The subject site is relatively flat, with no excessive slopes, and it has no remarkable features from an environmental standpoint. It is unique in the sense that it is flat, barren land. It does not have wetlands, pristine water bodies, or other protected conditions. Also, it has no endangered plant species requiring special protection, no patriarch trees, no protected trees, and no native forests. Should the Deviation be Approved? A deviation under Section 23.3 is an amendment to a "set requirement" in the Code, such as a setback or height restriction. Between 60 and 75 percent of all applications filed with the DRC for a site plan approval are accompanied by a request for a deviation from a development standard, which are standards prescribed for each zoning district in the Code. One such development standard for the CP District is a four- story height limitation on structures found in Section 10.6RR of the Zoning Code. The DRC is a four-person committee comprised of representatives from the City's Utility Department, Public Works Department, Growth Management Department, and Planning Department; it is charged with the responsibility of deciding whether to grant or deny a deviation request. For at least the last six years, and probably much longer, the DRC has consistently applied and interpreted the deviation standards in Section 23.3 in the same manner. Although Section 23.3 provides that "the granting of deviations from the development standards in this chapter is not favored," they are not discouraged since more than half of all applicants cannot meet development standards due to site characteristics or other factors. Rather, the intent of the provision is to prevent wholesale deviations being submitted, project after project. Requests for a deviation are always approved, when justified, in order to give both the City and the applicant more flexibility in the development process. Here, AHG's application was treated the same as any other applicant. This case represents the first occasion that an approval of a deviation has been appealed. After an application for a deviation is filed, it is forwarded to all appropriate City departments as well as members of the DRC. Each reviewing agency is requested to provide information to the DRC members on whether or not the request should be recommended for approval. In this case, no adverse comments or recommendations were made by any City Department. After reviewing the Department comments, and the justification submitted by AHG, the DRC approved the deviation. Under Section 5.1 of the Code, the City's land use administrator, Mr. Pitts, has the specific responsibility to interpret all zoning and development approval regulations, including Section 23.3, which provides the criteria for granting a deviation. That provision has an apparent inconsistency between the first two sentences: the first sentence includes a phrase that all criteria set forth thereafter must be met to approve a deviation while the second sentence appears to provide that only the conditions necessary to granting a particular deviation must be met. In resolving this apparent inconsistency, Mr. Pitts does not construe the Section as requiring that all seven criteria must be met in every case. Instead, even though all criteria are reviewed by the DRC, only those that are applicable must be satisfied. If this were not true, the DRC "would grant very few deviations as part of [its] site plan or subdivision regulation [process]," and the intent of the Section would be undermined. For example, in order to justify a deviation, the DRC does not require that an applicant show that there are exceptional topographical soil features if, as here, there are no exceptional environmental features on the property. This interpretation has been consistently followed over the years, is a reasonable and logical construction of the language, and is hereby accepted. As a part of its application, AHG submitted a narrative justifying the granting of a deviation under each of the seven criteria. To satisfy the first disputed criterion, AHG indicated in its application that "[t]his deviation is the minimum allowed to make reasonable use of the property and to compete with adjacent hotels who enjoy the same height opportunity." AHG's use of the property is consistent with adjoining developments, including the neighboring Cabot Lodge, which is five stories high and has 135 rooms, and the Hilton Garden Inn, which was originally vested for an office building, but was allowed by the DRC to construct a four-story hotel. There is no other property available to AHG at this site on which to construct a hotel. The evidence shows that New Horizons initially offered to sell AHG only 2.05 acres; when AHG advised that anything less than 2.23 acres would render the project financially unfeasible, New Horizons "very reluctantly" agreed to sell an additional .18 acres. Because New Horizons intends to build a restaurant on its remaining 2.097 acres, any further reduction in the acreage would reduce its highest and best use of the property. Thus, AHG does not have the option of purchasing more property to expand its hotel laterally, as Petitioner suggests, rather than by adding a fifth floor. In addition, AHG does not have the ability to reduce the size of its hotel rooms in order to squeeze more rooms out of a four-story structure. This is because Hampton Inn (the franchisor) will not grant a franchise for a new hotel unless the franchisee agrees to build a hotel with prototypical room sizes. The present design of the hotel meets the minimum size required. There is no evidence that there is any other minimum deviation that could be granted which would make possible the use of the property for construction of 122 rooms under the standards set forth by Hampton Inn, the franchisor. Thus, the only practical adjustment that can be made is to obtain a height deviation. Accordingly, the criterion has been satisfied. To satisfy the second disputed criterion, AHG stated in its narrative that "[t]he strict application of this requirement would place this property and proposed hotel at a competitive disadvantage by a lower number of available rooms." Through testimony of an AHG principal, it was established that in order for AHG to make reasonable use of its property, the addition of a fifth floor is necessary. The evidence shows that as a general rule, a developer can only afford to pay approximately $10,000.00 per room for land cost. In this case, based on the 2.23 acres, at a purchase price of $1,500,000.00 and a hotel with 122 rooms, the projected land cost is $12,000.00 per room. This is the maximum that can be paid for land and still make AHG's project economically feasible. The strict application of the Zoning Code will make the project financially unfeasible, which will create a substantial hardship to AHG. The hardship is not self-created or imposed. At hearing, Petitioner's representative contended that "there are some companies who would find it financially feasible" to construct a four-story hotel with fewer rooms on the same site. However, the more persuasive evidence on this issue was presented by the AHG principal and shows the contrary to be true. The evidence further shows that the granting of the deviation will result in an almost equal efficiency factor of the total square footage of building versus the total square footage of the site when comparing AHG's proposed project to the neighboring Cabot Lodge. On the other hand, strict application of the Zoning Code could result in a substantially less and disproportionate efficiency factor of AHG's property as compared to the adjoining Cabot Lodge. This is because the highest point of the proposed Hampton Inn and Suites is 58 feet, 6 inches, with the majority of the hotel being 51 feet high. The adjoining five-story, 135-room Cabot Lodge has its highest point at 55 feet, 6 inches, with the majority of the building at 46 feet high. The Hilton Garden Inn has the highest roof with its maximum height at 59 feet, 6 inches, which runs across the entire peak of the roofline. 40. To satisfy the final disputed criterion, AHG indicated in its application that "[t]he absence of any environmental features on this property, or any adjacent environmental features that might be impacted[,] help support the deviation." As noted above, the property in question is unique in the sense that it is flat, treeless, and has no remarkable environmental features. If a site is devoid of environmental features, as it is here, the DRC has consistently interpreted this provision as having no application in the deviation process. This is the same interpretation used by the DRC when it approved Petitioner's application for a height deviation in 1996 to construct the Hilton Garden Inn. Like AHG's property, Petitioner's property was also devoid of environmental features. Therefore, this criterion does not apply. Even assuming arguendo that this provision applies, the addition of a fifth story to a four-story building has no impact whatsoever on the environmental characteristics of the site. Finally, there is no evidence that the deviation request is inconsistent with the Plan, or that the deviation will have any adverse impact to the general health, safety, and welfare of the public. Indeed, as to any Plan implications that might arise through the construction of a hotel, the evidence shows that the project is wholly consistent with the purpose and intent of the CP land use category, which is to promote higher intensity and density in CP-zoned land and to discourage urban sprawl.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Tallahassee-Leon County Planning Commission enter a final order granting AHG's Type B site plan review application and its application for a deviation from the height restriction for the CP land use category. DONE AND ENTERED this 22nd day of January, 2003, in Tallahassee, Leon County, Florida. ___________________________________ DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of January, 2003. COPIES FURNISHED: Charles R. Gardner, Esquire Gardner, Wadsworth, Shelfer, Duggar & Bist, P.A. 1300 Thomaswood Drive Tallahassee, Florida 32308-7914 Linda R. Hurst, Esquire City Hall, Second Floor 300 South Adams Street Tallahassee, Florida 32301-1731 John Marshall Conrad, Esquire Ausley & McMullen Post Office Box 391 Tallahassee, Florida 32302-0391 Jean Gregory, Clerk Tallahassee-Leon County Planning Commission City Hall 300 South Adams Street Tallahassee, Florida 32301-1731
The Issue The issue for determination is whether Respondent's intended decision to fund the application of Petitioner Duval Park, Ltd. (Duval Park), is contrary to its governing statutes, rules, policies, or the proposal specifications.
Findings Of Fact Florida Housing is a public corporation that administers low-income housing tax credit programs. As of July 1, 2012, Florida Housing was authorized to use up to ten percent of its annual allocation of low-income housing tax credits to fund high-priority affordable housing developments selected through a competitive solicitation process, such as the RFP. See Ch. 2012-127, § 4, Laws of Fla. (2012)(creating § 420.507(48), Fla. Stat.). Examples of "high priority" affordable housing developments include housing for veterans and their families, and housing for persons with special needs. Prior to issuing the RFP, Florida Housing conducted some demonstration RFPs for developments serving special needs households, but the RFP represents the first actual use of the competitive solicitation process to award low-income housing tax credits. Previously, low-income housing tax credits were awarded through what was known as the universal application cycle, a process described as cumbersome, lengthy, and inflexible. As part of the universal application cycle, an applicant could indicate by checking a box that it intended to provide affordable housing to special needs households. However, the general universal application process did not lend itself to a targeted proposal detailing how the unique needs of specific special-needs population groups would be addressed. The competitive solicitation process was seen as a way to allow applicants to respond to particular high-priority development needs identified by Florida Housing. In setting forth their development proposals for defined target population groups, applicants would be able to tell their story: applicants would identify and describe the unique needs and household characteristics of the specific special-needs population group that is the focus of their application; applicants could detail and demonstrate their know-how with regard to the resources available in the community where the proposed development is located, to meet the unique needs of the target population; and applicants would be able to discuss the relevant experience of the developer and management teams that make them well-suited to carry out the proposed development and meet the unique needs of the targeted population group. The RFP The RFP solicited responses or applications proposing the development of "permanent supportive housing" (as defined in the RFP) for persons with special needs. Florida Housing issued the RFP with the expectation of funding two or more proposals. The RFP provided that applicants could propose developments for persons with special needs generally, or applicants could choose to focus on serving veterans with special needs. If an applicant chose to focus on veterans with special needs, the applicant was required to pick one of two specific subcategories: either veterans with service-connected disabling conditions transitioning from a Veterans' Administration (VA) hospital or medical center; or chronically homeless/ institutionalized veterans with disabling conditions who were significant users of public resources, such as emergency care and shelter. The RFP specified that it was Florida Housing's goal to fund at least one development proposing to serve veterans with special needs. Preference would be given to proposed developments focusing on serving special-needs veterans in the first subcategory, i.e., veterans transitioning from VA hospitals and medical centers. Duval Park, Osprey, and five other applicants timely submitted applications in response to the RFP. Both Duval Park and Osprey proposed permanent supportive housing developments to serve veterans with special needs transitioning from VA hospitals and medical centers. As described in the RFP, an evaluation committee comprised of Florida Housing employees reviewed and scored the applications. Members of the evaluation committee were instructed to independently evaluate and score the application sections assigned to them. The RFP specified that at least one public meeting would be held at which the evaluators were allowed to discuss their evaluations, make any adjustments deemed necessary to best serve the interests of Florida Housing's mission, and develop recommendations for the Florida Housing Board of Directors. For most application sections, a single evaluator was assigned to review and score the seven responses. For example, Mr. Aldinger was the evaluator who reviewed and scored the two application sections addressing developer and management company experience with permanent supportive housing. Two application sections were assigned for evaluation and scoring by two evaluation committee members. The two evaluators first independently reviewed and scored all seven application responses for the two sections. Then the two evaluators met in a noticed public meeting to conduct a "reconciliation process," in which they discussed their evaluations of the responses to the two application sections and reconciled differences in their scores. The evaluation committee ultimately concluded that Duval Park's application was entitled to a total of 119 points out of 133 possible points, and that Osprey's application was entitled to 117 points. A large gap in scoring separated these two highest-scoring applicants from the other five applicants; the next highest score was 95 points. The evaluation committee presented its recommendation to the Florida Housing Board of Directors, along with a summary of the scores assigned by the evaluation committee. The committee's recommendation was that Florida Housing should award funding to Duval Park for its proposed development. Florida Housing's Board adopted the committee's recommendation. Osprey's Protest Issue Remaining for Determination Following the parties' withdrawal of most of their protest issues, the only remaining disputed issue for resolution in this proceeding is Osprey's claim that Duval Park should have received "at least three" less points than Osprey for the sections addressing developer and management company experience.2/ Mr. Aldinger's assignment as the evaluation committee member responsible for reviewing and scoring these application sections comports with his expertise. Mr. Aldinger has served as Florida Housing's supportive housing coordinator since 2006. In that role, he has been coordinating with governmental bodies and industry stakeholders to develop strategies for focusing Florida Housing's resources on the provision of supportive housing to special needs households. The RFP was developed in furtherance of this effort, and Mr. Aldinger was one of the RFP's authors. Mr. Aldinger assigned the same number of points to the Duval Park and Osprey applications in both sections. Each application received 24 out of 25 possible points for developer experience, and all ten of the points available for management company experience. Osprey's contention is that its narratives for these two application sections show its objective superiority. Osprey's "objective superiority" argument is primarily based on a quantitative comparison, in which its narrative showed experience developing and operating a larger number of permanent supportive housing units than did Duval Park's narrative. Osprey also contends that its narrative was qualitatively better in providing greater detail regarding its experience developing and operating permanent supportive housing. As part of its argument, Osprey contends that Duval Park strayed from the RFP instructions by describing experience with more than just permanent supportive housing, but that the evaluator gave Duval Park credit anyway. The RFP instructions provide the starting point to assess Osprey's contentions. First, the RFP provided the following definition of "permanent supportive housing": Rental housing that is affordable to the focus households with household incomes at or below 60 percent of area median income (AMI), that is leased to the focus households, for continued occupancy with an indefinite length of stay as long as the Permanent Supportive Housing tenant complies with the lease requirements. Permanent Supportive Housing shall facilitate and promote activities of daily living, access to community-based services and amenities, and inclusion in the general community. Permanent Supportive Housing shall strive to meet the needs and preferences of the focus households. This RFP definition was acknowledged to be somewhat broader than how that phrase might be understood by some industry models. For example, Mr. Aldinger testified that transitional housing could be permanent supportive housing within the RFP definition, as long as a lease agreement is used. Permanency is not required, only an "indefinite" length of stay. The fact that leases are for finite terms of 12 or 24 months would not be dispositive; rather, the length of stay would be considered "indefinite" if tenants are not required to leave at the end of their lease terms, if they are not ready to leave and are otherwise in compliance with the lease terms. The provision of supportive services to meet the needs of the focus population is a key part of the RFP definition. The RFP instructions for the developer experience narrative were as follows: Developer Experience with Permanent Supportive Housing (Maximum 25 points): The Applicant must describe the experience of the Developer, co-Developer, and/or Principal in developing and operating Permanent Supportive Housing, and more specifically, housing for the households the Applicant is proposing to serve. Describe the role(s) and responsibilities of any Developer, co- Developer, and/or Principal listed in the Applicant's responses to Items A.2.c. and 3.a. of Section 6 of the RFP, related to the proposed Development, and describe the experience and qualifications relevant to carrying out the roles and responsibilities for this proposed Development. (emphasis added). The RFP instructions for the first application section must also be considered because they tie into the developer/ manager experience sections. The instructions for the first application section required the applicant to provide a detailed description of the focus population group, and the instructions also explained how that description would be used, as follows: [T]he Applicant must provide a detailed description of the resident household characteristics, needs, and preferences of the focus population(s) the Applicant is proposing to serve. This description will provide a point of reference for the Corporation's evaluation and scoring of the Application, providing the foundation for the appropriateness of the experience of the Developer(s) and Management Company, proposed Construction Features and Amenities, Resident services and Access to Community Based Services and Amenities. (emphasis added). As part of this first application section, applicants focusing on special-needs veterans transitioning from VA facilities were required to designate the specific VA facilities with which the applicants expected to be working and coordinating. Osprey, whose proposed development is in Liberty City, Miami-Dade County, designated Miami VA Healthcare System (Miami VA) in Miami. Duval Park, whose proposed development is in unincorporated Pinellas County, designated Bay Pines VA Healthcare System (Bay Pines VA) in Pinellas County, as well as the James A. Haley Veterans Hospital and the Tampa Polytrauma Rehabilitation Center, both in Tampa, Hillsborough County. Osprey and Duval Park both provided extensive narratives describing their target populations and detailing the unique needs and preferences of their target populations. Osprey's narrative described the information learned from interviewing social workers in each of the programs under the umbrella of the Miami VA, with whom Carrfour would be coordinating for transitioning veterans. Osprey's narrative also described a VA grant to Carrfour of $1,000,000 per year for supportive services for veteran families, through which Carrfour provides a comprehensive case management program called Operation Sacred Trust. This program has an outreach team that works closely with social workers throughout the Miami VA. The Duval Park narrative discussed and documented the work of the St. Petersburg Housing Authority Wounded Warrior Community Advisory Group to assess housing needs for veterans. Developer-partner ServiceSource's director of housing was a participant. As part of the assessment, the advisory group conducted veterans' focus groups to hear from the veterans themselves regarding their needs and preferences, including the particular supportive services needed to allow veterans to transition to an independent living setting. The Duval Park narrative also described the information about transitioning veterans learned through ongoing projects with the VA facilities designated for the proposed development, including a Memorandum of Understanding between James A. Haley Veterans Hospital and ServiceSource's Warrior Bridge program. As called for by the RFP instructions, Mr. Aldinger used each application's detailed description of the target population in section one as the foundation for evaluating that application's developer and management experience narratives. The experience narratives were properly evaluated in accordance with the RFP instructions in the context of each applicant's specific proposal to focus on a defined population group transitioning from designated VA facilities, whose unique needs were fleshed out in the first section narratives. Mr. Aldinger reviewed and was impressed with both Osprey's and Duval Park's developer experience narratives, for good reason. As he explained, the two responses took different approaches, but both provided good detail in the limited space allotted. Osprey's narrative described Carrfour, a non-managing member of the applicant entity that will be the developer and, through a subsidiary, manager of the proposed development. Carrfour is a not-for-profit organization created in 1993 by the Greater Miami Chamber of Commerce, with the mission of developing permanent supportive housing to end homelessness. In setting forth Carrfour's experience, the Osprey narrative took a quantitative approach by enumerating Carrfour's 16 mixed-use housing development projects that included permanent supportive housing. Some details were provided for each development, such as the funding sources, the number of total units, how many of those units were permanent supportive housing units, and how many of the units were currently occupied by veterans. However, the narrative did not explain whether any supportive services provided for these developments were specifically geared to meeting the special needs of veterans. The types of supportive services were not identified for any of the 16 developments. For three developments, the description stated only that "a full array of supportive services" was provided or that "on-site supportive services" were provided. Supportive services were not mentioned in the descriptions of the other 13 developments. Other than providing the number of units then occupied by veterans, Osprey's developer experience narrative had no information to demonstrate experience providing housing specifically developed to meet the unique needs of the focus population for its proposed development: veterans with service- related disabling conditions transitioning from the Miami VA. Duval Park's developer experience narrative did not match Osprey's approach of enumerating individual permanent supportive housing developments and quantifying the units in each development. Duval Park's response chose instead to describe in general aggregate terms the permanent supportive housing experience of the developer-partners. The Duval Park narrative went into more detail to highlight the developer team experience with housing projects specifically designed to meet the unique needs of special-needs veterans transitioning from the VA facilities designated in its application, something lacking in the Osprey response. For example, Duval Park's response described developer- partner Boley's substantial experience since it was founded in 1970, in developing more than 500 units of permanent supportive housing in Pinellas County. The narrative also described the even longer-standing experience of developer-partner ServiceSource, founded in 1959 with a mission to provide services to needy people with disabilities. Initially providing employment, training, rehabilitation, and support services (relevant to the roles described for this developer-partner in operating the proposed development), ServiceSource began a housing program in 1995. ServiceSource's permanent supportive housing development experience was summarized in shorthand as including 20 separate "HUD 202/811 awards." The unrefuted testimony established that this shorthand reference was properly understood by Mr. Aldinger to signify 20 permanent supportive housing developments for persons with disabilities. Two specific supportive housing projects for veterans, developed and operated by Boley working with the Bay Pines VA, were detailed in Duval Park's developer experience narrative. In 2007, Bay Pines VA awarded Boley a contract for "Safe Haven Model Demonstration Project" services, described in the notice of contract award as "a specialty model of HCHV residential care as mandated by the . . . zero-tolerance policy to end homelessness within the Veteran population." Through this contract, Boley acquired and rehabilitated a former 20-unit skilled nursing facility to establish Morningside Safe Haven (Morningside), which provides housing and a residential treatment program with counseling for veterans. Half of the 20 veterans housed there have service-connected disabling conditions, and one-third of the veterans transitioned from VA facilities. Pinellas County and HUD provide funding support for this VA pilot program. Osprey contends that Boley's experience developing and operating Morningside should have been ignored in scoring Duval Park's developer experience, because a residential treatment program is not permanent supportive housing. However, according to Mr. Humberg, Morningside is considered permanent supportive housing under HUD guidelines. Veterans sign a 12-month lease to reside in a unit. Although the intent is that tenants will complete treatment and move on, tenants are not required to leave at the end of their 12-month lease terms; they can stay as long as they need to, if they are otherwise compliant with their leases. Even if Morningside did not technically meet the RFP definition of permanent supportive housing, the discussion of Morningside still would be appropriate for this narrative, pursuant to the RFP instructions. The Morningside experience demonstrates Boley's "experience and qualifications relevant to carrying out" its roles and responsibilities for the proposed development, identified in the same narrative to include mental health counseling, case management, and VA coordination. Also described in Duval Park's narrative was Boley's 2010 development of Jerry Howe Apartments, with 13 units developed specifically for formerly homeless veterans, many of whom have service-connected disabling conditions. Funding for this development was provided by the VA and the City of Clearwater. Boley coordinates with Bay Pines VA in operating this development, with Bay Pines VA providing screening and referral services to identify veterans who are candidates to lease apartment units. Boley's staff members work closely with the veteran tenants to provide supportive services, preparing them for more independent living. Osprey quibbles with whether Jerry Howe Apartments technically qualifies as permanent supportive housing, noting that while the veteran tenants do sign a lease, the intent of the project is to serve as transitional housing for up to 24 months. However, Mr. Aldinger explained that transitional housing would meet the RFP's broad definition of permanent supportive housing if tenants are not required to leave after a finite period of 12 or 24 months. Mr. Humberg confirmed that veterans residing at Jerry Howe Apartments are not required to leave after 24 months, if they are not ready to move on. Mr. Humberg also clarified that Boley owned the apartments before they were redeveloped in 2010, specifically to meet the needs of veterans. Before the 2010 redevelopment, Boley operated the property as permanent supportive housing, just not specifically for veterans. In fact, two of the units remain occupied by prior non-veteran permanent supportive housing tenants, who did not want to move out in 2010 when the property was redeveloped. It is not necessary to debate whether Jerry Howe Apartments technically is permanent supportive housing, although the evidence demonstrated that the development is and has been permanent supportive housing, as defined in the RFP. Certainly, this project demonstrates Boley's experience and qualifications relevant to carrying out its roles and responsibilities for the proposed development and, therefore, is worthy of consideration as part of the developer experience narrative. Duval Park's developer experience narrative also detailed specific veterans' supportive service programs developed by both Boley and ServiceSource. The descriptions of these programs demonstrate experience and qualifications directly relevant to the described roles and responsibilities for Boley and ServiceSource with respect to the proposed development. Duval Park's experience narrative details the many accomplishments of ServiceSource's nationally-recognized Warrior Bridge program, which provides a wide variety of supportive services to veterans. Noteworthy is a 2012 award of over $1,000,000 from the City of St. Petersburg to ServiceSource to expand housing options for wounded veterans. Under this program, in the past year, ServiceSource partnered with Home Depot to modify 16 homes and facilities serving wounded veterans in the Tampa Bay area to increase accessibility, safety, and energy efficiency. This experience translates directly to the role ServiceSource will serve as a participant in designing the proposed housing development specifically to accommodate the unique accessibility and other needs of special-needs veterans with disabling conditions. ServiceSource's Warrior Bridge program also operates the "Veterans' Mall" in the vicinity of the proposed development. At the Veterans' Mall, household appliances, cookware, business attire, and necessities are made available to wounded veterans transitioning to more independent housing settings. According to Duval Park's narrative, the Veterans' Mall has served more than 325 veterans since opening in October 2011, through partnerships with Bay Pines VA and local community organizations serving veterans. ServiceSource's representative testified that ServiceSource recently secured a five-year commitment from T.J. Maxx to stock the Veterans' Mall with new suits for veterans going on job interviews. The Duval Park developer experience narrative regarding the Warrior Bridge program portrays ServiceSource's experience and qualifications to carry out its described roles and responsibilities for the proposed development, which include community outreach, physical disability counseling, employment assistance, job training, and VA coordination. Another program described in Duval Park's developer experience narrative is Boley's Homeless Veterans Reintegration Program. This is a case management, training, and employment program specifically for veterans, conducted by Boley case managers and employment specialists, demonstrating that they are well-suited to carry out the described roles and responsibilities for Boley with respect to the proposed development, which includes the lead case management role. A reasonable person attempting to compare the two developer experience narratives might say that Osprey's narrative demonstrated greater quantitative experience in developing more units of permanent supportive housing generally, but that Duval Park's narrative demonstrated better qualitative experience among the developer-partners in developing supportive housing specifically for veterans with special needs. Duval Park's narrative was more directly focused on specific experience developing supportive housing that addresses the unique needs of those special-needs veterans who are transitioning from VA facilities. In addition, Duval Park's narrative better demonstrated experience and qualifications among the developer- partners that are directly relevant to their described roles and responsibilities in carrying out the proposed development. Both narratives were very good and responsive to the RFP instructions, while taking very different approaches. Mr. Aldinger reasonably applied the RFP instructions, reasonably evaluated the two narratives, and reasonably judged them both to be deserving of the same very high score. The credible evidence does not support Osprey's contention that its developer experience narrative was superior, or that Duval Park's narrative strayed beyond the RFP instructions, or that Duval Park's narrative was judged by different standards than Osprey's narrative.3/ Osprey also takes issue with the scoring of the two applications' narratives describing management company experience with permanent supportive housing. As noted, Mr. Aldinger evaluated these narratives and awarded each application the maximum ten points for this application section. Osprey's narrative identified Carrfour's not-for-profit subsidiary, Crossroads Management, LLC (Crossroads), as the manager for its proposed Liberty Village development. Although Carrfour was established in 1993, Crossroads was not created until 2007. Before Crossroads was created, Carrfour did not manage the housing projects it developed; instead, it turned the developments over to traditional property management companies. As Osprey's narrative acknowledges, this created problems, as the traditional management companies lacked the sensitivity and training to address special needs of permanent supportive housing tenants. Since 2007, Crossroads has been taking over management functions for Carrfour developments and is now managing most of the 16 developments listed in the developer experience narrative. Osprey's application was given credit for proposing management with ideal experience. For Duval Park's application, Boley is identified as the management company. In addition, Boley will engage Carteret Management Company (Carteret), which is owned and operated by James Chadwick, a principal of developer-partner Blue Sky, to assist with tax-credit compliance and other matters within Carteret's expertise during the initial phases of the project. Boley's specific experience managing supportive housing for veterans with special needs, previously detailed in the developer experience discussion above, could not reasonably be questioned. As described in the manager experience narrative, Boley manages 561 units of its own permanent supportive housing. Boley also manages 112 additional permanent supportive housing units owned by other not-for-profit companies (including an 88-unit development owned by ServiceSource). The management narrative describes the profile of the typical Boley-managed housing unit tenant as having mental illness, including post-traumatic stress disorder and/or substance abuse problems, requiring supportive services provided by Boley staff. These supportive services include mental health counseling, case management intervention, and transportation assistance--functions for which Boley will assume responsibility operating the proposed development. The narrative also describes Boley's property management personnel: seven housing staff who handle leasing, income certifications, and other leasing matters; eight maintenance staff to handle property repairs; three drivers who provide transportation; and four accounting staff for property management functions. Osprey does not articulate a specific reason why Duval Park's management company experience narrative should not be entitled to ten points, or why Osprey believes its narrative was qualitatively or quantitatively better than Duval Park's, except to the extent of Osprey's criticisms of the developer experience narratives. Yet Osprey's narrative for manager experience arguably should not fare as well as its narrative for developer experience, given the many more years of management experience demonstrated by Boley and the comparatively few years of management experience by the Crossroads management entity created by Carrfour in 2007. Nonetheless, Mr. Aldinger credited the Osprey application with the maximum points based on Crossroads' management experience since 2007. No credible evidence was presented to support the contention that Duval Park's management experience narrative was not entitled to at least the same number of points as Osprey's management experience narrative. As repeatedly acknowledged by all parties throughout the hearing, Florida Housing was fortunate to have received two excellent proposals by Osprey and Duval Park that were head and shoulders above the other responses. Florida Housing then was faced with the difficult task of deciding which, between two excellent choices, should receive the funding nod, if only one of the two could be funded. Based on the evidence and the findings above, Mr. Aldinger's assignment of the same number of points for developer experience (24 points out of a possible 25 points) and for management company experience (the maximum of 10 points) to the two excellent proposals was not clearly erroneous, arbitrary, capricious, or contrary to competition. His conclusion that both applicants demonstrated nearly ideal development experience and ideal management company experience for their proposals was reasonable. The evidence established that Mr. Aldinger made the points assignments he did after evaluating all of the relevant information he was allowed to consider pursuant to the RFP instructions. His scoring of these two application sections was shown to be an honest, good faith exercise of his expert judgment applied to sort out the various pros and cons of the responses. Osprey did not identify any statute or rule that it contends was violated by the scoring of the Osprey and Duval Park developer and management experience narratives. Osprey argued, but did not prove, that the scoring of these two applications was contrary to the RFP specifications. Osprey argued that Mr. Aldinger's evaluation was contrary to the RFP because he considered differences between the two projects in assessing developer experience. Osprey characterized this as double- counting, because the same aspects of the projects were scored in other sections. Osprey also contended that considering the differences between the two proposed developments and the different approaches by the two applicants was tantamount to applying different standards in evaluating the two applications. Osprey's criticism was not borne out by the evidence. Instead, Mr. Aldinger described a reasonable process, consistent with the RFP terms explaining that developer experience would be assessed in the context of the attributes of the target population described in the first section of the application, and also in context with the roles and responsibilities described for the developer team members in carrying out the proposed development. The same RFP instructions and the same standards were applied to the evaluation of the two applications; it was the applications that were different, not the standards.4/ Although not actually raised as a distinct challenge, Osprey suggested an additional argument in its PRO, not articulated in its written protest or in the Joint Pre-hearing Stipulation. Osprey argued in its PRO that Florida Housing should have used two evaluators to score the developer and manager experience narratives, as a "check and balance" against arbitrary scoring. Osprey's new argument stands in stark contrast to the only challenge to the evaluation process articulated in Osprey's written protest and in the Joint Pre-hearing Stipulation. Before the hearing, Osprey challenged the evaluation procedure used for two application sections that were scored by two evaluators. Rather than providing any check-and-balance comfort, the two- evaluator process was viewed as defective by Osprey because the initial scores independently assigned by each evaluator were reconciled in a public discussion meeting at which differences in scores were harmonized, meaning that when the initial scores differed, the evaluators agreed to adjust their initial scores. Osprey has established only that for some application sections, a single evaluator was used, while for other application sections, two evaluators were used and their separate scores were reconciled. No credible evidence was offered to prove that use of two evaluators was better than using one evaluator (or vice versa, as Osprey initially argued).
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 consistent with its initial decision to award funding for the Duval Park, Ltd., proposed development, and dismissing the formal written protests of Osprey Apartments, LLC, and Duval Park, Ltd. DONE AND ENTERED this 25th day of November, 2013, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR 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 25th day of November, 2013.
