The Issue The issue to be determined in this case is whether the amendments to the Manatee County Comprehensive Plan (Manatee Plan) adopted by the Board of County Commissioners of Manatee County via Ordinance No. 13-10 on December 5, 2013, are “in compliance,” as defined in section 163.3184(1)(b), Florida Statutes (2013).
Findings Of Fact The Parties Katie Pierola is a resident and landowner in Manatee County. Mrs. Pierola made timely objections and comments to Manatee County on the 2013 Amendments. Greg Geraldson is a resident and landowner in Manatee County. Mr. Geraldson made timely objections and comments to Manatee County on the 2013 Amendments. Manatee County is a political subdivision of the State and has adopted the Manatee Plan, which it amends from time to time pursuant to section 163.3184, Florida Statutes. Robinson Farms is a Florida corporation doing business in Manatee County and owning real property in the County. It owns the property affected by the 2013 Amendments. The 2013 Amendments The 2013 Amendments would amend the Future Land Use Map of the Manatee Plan to change the future land use classification of approximately 20 acres of land owned by Robinson Farms from RES-1 to RES-3. The land is described by metes and bounds in Exhibit A to Ordinance No. 13-10. It is located on the north side of 9th Avenue Northwest, about 600 feet east of 99th Street. The RES-1 classification allows one dwelling unit per acre (du/a). The RES-3 classification allows up to three du/a. The General Introduction chapter of the Manatee Plan, Section D – Special Plan Interpretation Provisions, would be amended to add the following new text: D.5.16 Ordinance 13-10 (ROBINSON FARMS PLAN AMENDMENT) The 20± acre property identified as the Robinson Farms Plan Amendment and designated RES-3 on the Future Land Use Map pursuant to Manatee County Ordinance No. 13-10 shall be limited to a maximum of thirty eight (38) residential units. Coastal Evacuation Area and Coastal High Hazard Area All 20 acres of the Robinson Farms property is within the Coastal Evacuation Area (CEA). The CEA is defined in the Manatee Plan as: The evacuation Level A for a Category 1 hurricane as established in the regional evacuation study applicable to Manatee County, as updated on a periodic basis. Future Land Use Element (FLUE) Policy 2.2.2.4.2, which addresses the purposes of the CEA, states in part: To limit population in the Category 1 hurricane evacuation area requiring evacuation during storm events. To limit the amount of infrastructure, both private and public, within the CEA Overlay District and thereby limit magnitude of public loss and involvement in mitigating for loss of private infrastructure to Manatee County residents. To, through exercise of the police power, increase the degree of protection to public and private property, and to protect the lives of residents within the CEA, and reduce the risk of exposing lives or property to storm damage. All but 4.68 acres is within the Coastal High Hazard Area (CHHA). The CHHA is defined in the Manatee Plan as: The geographic area below the Category 1 storm surge line as established by a Sea, Lake, and Overland Surges from Hurricanes (SLOSH) computerized storm surge model, pursuant to applicable law, as updated on a periodic basis. FLUE Policy 2.2.2.5.2, which addresses the purposes of the CHHA, repeats the same purposes that are set forth above for the CEA. Relevant Goals, Objectives, and Policies Goal 4.3 of the Coastal Element of the Manatee Plan is: Protection of the Residents and Property Within the Coastal Planning Area from the Physical and Economic Effects of Natural Disasters Coastal Element Objective 4.3.1 states: Limit development type, density and intensity within the Coastal Planning Area and direct population and development to areas outside the Coastal High Hazard Area to mitigate the potential negative impacts of natural hazards in the area. Coastal Element Policy 4.3.1.1 states: Direct population concentrations away from the Coastal Evacuation Area FLUE Policy 2.2.2.4.5(a), which addresses development restrictions in the CEA, states: Prohibit any amendment to the Future Land Use Map which would result in an increase in allowable residential density on sites within the Coastal Evacuation Area. FLUE Policy 2.2.2.4.4(a) states, in part: The area designated under the CEA Overlay District on the Future Land Use Map shall also be subject to all goals, objectives and policies for any land use category overlaid by the CHHA District, except where policies associated with the CEA Overlay conflict with such goals, objectives and policies. In this event, policies associated with the CHHA Overlay District shall override other goals, objectives and policies. FLUE Policy 2.2.2.5.5(a), which addresses development restrictions in the CHHA, states: Prohibit any amendment to the Future Land Use Map which would result in an increase in allowable residential density on sites within the Coastal High Hazard Area Overlay District. FLUE Policy 2.2.2.5.4(a) states that, in the event of a conflict between CHHA policies and other policies in the Manatee Plan, the CHHA policies shall override. Data and Analysis Petitioners contend that the 2013 Amendments are not based on best available data and analysis as required by Florida Administrative Code Rule 9J-5.005(2). However, that rule was repealed in 2011. Section 163.3177(1)(f) requires that plan amendments be based on “relevant and appropriate data and analysis.” This section explains: To be based on data means to react to it in an appropriate way and to the extent necessary indicated by the data available on that particular subject at the time of adoption of the plan or plan amendment at issue. Petitioners contend that the proposed reclassification of the Robinson Farms property from RES-1 to RES-3 does not react appropriately to the data which show the Robinson Farms property lies within the CEA and CHHA. However, as explained in the Conclusions of Law, it is not the mapping of the CEA and CHHA that creates a conflict with the 2013 Amendments. The conflict is created by the policies which address future land uses in the CEA and CHHA. Internal Consistency Petitioners contend that the 2013 Amendments make the Manatee Plan internally inconsistent with Coastal Element Objective 4.3.1 and Coastal Element Policy 4.3.1.1 which require “population concentrations” to be directed away from the Coastal Evacuation Area. No evidence was presented by Petitioners or by Manatee County on the County’s interpretation of the term “population concentrations.” However, FLUE Policy 2.2.2.4.5(a) prohibits any increase in residential density in the CEA. Therefore, assuming as we must that the Manatee Plan is internally consistent, it follows that “population concentrations” in Coastal Element Objective 4.3.1 and Policy 4.3.1.1 means any increase in residential density. Because the 2013 Amendments increase residential density in the CEA, they are inconsistent with this objective and policy. Because the 2013 Amendments would amend the Future Land Use Map to increase allowable residential density on a site within the CEA they are inconsistent with FLUE Policy 2.2.2.4.5(a), which prohibits any amendment to the Future Land Use Map that would increase allowable residential density on sites within the CEA. Because the 2013 Amendments would amend the Future Land Use Map to increase allowable residential density on a site within the CHHA they are inconsistent with FLUE Policy 2.2.2.5.5(a), which prohibits any amendment to the Future Land Use Map that would increase allowable residential density on sites within the CHHA. Competing Policies Manatee County and Robinson Farms argue that there are other policies in the Manatee Plan, such as those that discourage urban sprawl and encourage infill in the Urban Core Area, which the County must weigh along with the policies discussed above. The County contends that it weighed these conflicting policies and reached a fairly debatable determination that the 2013 Amendments are consistent with the Manatee Plan. Contradicting this argument are FLUE Policy 2.2.2.4.4(a) and FLUE Policy 2.2.2.5.4(a), which state that the CEA and CHHA policies shall override any conflicting goals, objectives, and policies in the Manatee Plan. Urban sprawl, infill, and other policies of the Manatee Plan cannot be invoked to avoid the specific prohibitions in FLUE Policies 2.2.2.4.5(a) and 2.2.2.5.5(a) against any amendment to the Future Land Use Map that would result in an increase in allowable residential density on sites within the CEA and CHHA. Density Offsets Manatee County and Robinson Farms argue that the County’s reduction in dwelling units in other parts of the CHHA over the past several years is a valid consideration in determining whether an increase in residential density on the Robinson Farms property is permissible despite the prohibition in FLUE Policy 2.2.2.5.5(a). In support of their argument, they cite Department of Community Affairs v. Leeward Yacht Club, LLC, DOAH Case No. 06-0049GM, 2006 WL 2497934 (Nov. 16, 2006). However, the Leeward Yacht Club case involved the comprehensive plan of Lee County, which did not prohibit increases in residential density in the CHHA. In contrast, the Manatee Plan quite plainly prohibits “any amendment” to the Future Land Use Map that would increase residential density in the CHHA. Previous Proceedings These same parties were involved in a dispute regarding an earlier proposed amendment to the Manatee Plan to reclassify property owned by Robinson Farms from RES-1 to RES-3. The 2010 Amendment was different in that it affected 28 acres (which encompasses the 20 acres in the 2013 Amendments). The 2010 Amendment would have increased the residential density on the 28 acres from 28 dwelling units to 105 dwelling units, all in the CEA. It would have added 56 dwelling units to the CHHA. Petitioners challenged the amendment and an evidentiary hearing was held before Administrative Law Judge D.R. Alexander (DOAH Case No. 11-0009GM). On April 13, 2011, Judge Alexander entered a Recommended Order which recommended that the 2010 Amendment be determined not in compliance because: The amendment was not based on relevant and appropriate data because the most current SLOSH model results were not used; The amendment was inconsistent with FLUE Policy 2.2.2.4.5(a) which prohibits any increase in residential density in the CEA. The amendment was inconsistent with Coastal Element Objective 4.3.1 and Policy 4.3.1.1 which require that population and development be directed to areas outside the CHHA. The Recommended Order went to the Administration Commission, which ultimately dismissed the case when Manatee County rescinded Ordinance No. 10-02 and the 2010 Amendment. In Manatee County Ordinance No. 11-035, which was the ordinance used to rescind the 2010 Amendment, the Board of County Commissioners determined that the 2010 Amendment was internally inconsistent with FLUE Policy 2.2.2.4.5(a), Coastal Element Objective 4.3.1, and Coastal Element Policy 4.3.1.1 because the amendment increased residential density in the CEA and CHHA.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission issue a final order determining that the 2013 Amendments adopted by Manatee County Ordinance No. 13-10 are not in compliance. DONE AND ENTERED this 8th day of July, 2014, 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 8th day of July, 2014. COPIES FURNISHED: James A. Minix, Esquire Manatee County Attorney's Office Post Office Box 1000 Bradenton, Florida 34206 Edward Vogler, II, Esquire Vogler Ashton, PLLC 2411-A Manatee Avenue West Bradenton, Florida 34205-4948 Thomas W. Reese, Esquire 2951 61st Avenue South St. Petersburg, Florida 33712-4539 Barbara Leighty, Clerk Transportation and Economic Development Policy Unit The Capitol, Room 1801 Tallahassee, Florida 32399-0001 Peter Antonacci, General Counsel Office of the Governor The Capitol, Suite 209 Tallahassee, Florida 32399-0001 Robert N. Sechen, General Counsel Department of Economic Opportunity Caldwell Building, MSC 110 107 East Madison Street Tallahassee, Florida 32399-4128
The Issue The issue is whether Walnut Creek's decision to award a landscaping contract to Turf Management is arbitrary or capricious.
Findings Of Fact Effective June 7, 2007, by Ordinance No. 1339, The City of Pembroke Pines, Florida established the Walnut Creek Community Development District (Walnut Creek). By an invitation to bid, entitled Bid Specifications for Landscape Maintenance of Rights-of-Way, Water Management Areas and Similar Planting Areas within the District," dated June 2007 (ITB), Walnut Creek announced that it would accept bids for the work described in the ITB. ITB Section 5 describes the work, which is to furnish all labor and materials "to perform complete maintenance of landscape area " ITB Section 5 details maintenance requirements, such as a mowing height of three inches, the use of rotary mowers with sharp blades, 40 mowings of Floratam grass, all mowing to take place on Thursdays, and specified fertilization schedules based on the type of grass being fertilized. Two ITB provisions were of particular interest at the hearing. ITB Section 10.b.5 addresses annuals and provides: "Annuals shall be replaced three times during the year in the months of October, February and June . . . ." ITB Section 12 provides: "Contractor shall respond to District Resident Project Representative within twenty-four (24) hours to remove storm damage debris." The ITB bid form, on which bidders were to write their prices, contradicts the statement in ITB Section 10.b.5 because it contains a line for "4[-inch] annuals 4 x a year." At a mandatory prebid conference conducted prior to the deadline for submitting bids, a consultant retained by Walnut Creek to assist in the bid process clarified that the contract requires four plantings of 2000 annuals annually, for a total of 8000 annuals per year. Although Walnut Creek did not memorialize this clarification that was announced at the prebid conference, any resulting confusion among prospective bidders has proved to be immaterial. A third ITB provision is also of especial importance. ITB Section 1.08 requires that bidders enclose with their bids a description of the educational background and professional experience of owners, supervisors, and key employees; a list of "similar contracts for landscape maintenance now held by your firm" (with a definition of "similar contracts" as "residential communities, similar or greater in size, the nature, extent and variety of landscaping installed and maintained within the community, to that of Walnut Creek, with annual contract amounts at or in excess of $200,000") and customer contacts for these contracts; an undertaking to assign only "fully trained personnel" to the contract; and other "satisfactory evidence" of "experience in like work" and "the necessary organization, capital, equipment and machinery to complete the work to the satisfaction of the Owner " By written Addendum, Walnut Creek clarified the requirement of "similar contracts" by limiting the comparable landscape maintenance service to "residential or mixed-use developments of similar size to the District or greater and which require a similar level of maintenance and maintenance of plant and landscaping material similar to [that] found on District property " ITB Section 1.10 provides that Walnut Creek reserves the right to reject any and all bids, "with or without cause," and to waive technical errors and informalities." ITB Section 1.11 provides that Walnut Creek will award the contract, if it is awarded, to the: lowest responsive and responsible high quality Bidder whose qualifications indicate the award will be in the best interest of the Owner and whose proposal shall comply with the requirements of these specifications. In no case will the award be made until all necessary investigations have been made into the responsibility of the Bidder to do the work and to have the necessary organization, capital and equipment to carry out the provisions of the contract to the satisfaction of the Owner . . . . ITB Section 2.07(3) states: "In the event that there is a discrepancy on the Proposal Form due to the unit price extensions or additions, the corrected extensions and additions shall be used to determine the project bid amount." ITB Section 2.14.3 provides: The Contract will be awarded to the lowest responsive and responsible high quality Bidder that best serves the interest of the Owner. The following elements, in addition to those noted in the Contract Documents, will be considered: Whether each Bidder: Maintains a permanent place of business; and Has adequate plant, machinery[,] manpower and equipment, and [sic] to do the Work properly, expeditiously and in a high quality manner; and Has suitable financial backing status to allow him to meet the obligations as outlined in and incident to the Work; and Has successful contractual and technical experience in Work in Similar Contracts, size, and scope in Broward County and/or surrounding areas; and Holds all valid necessary state, county, and local licenses or certificates of competency covering all operations of the Bidder and the Work required under the Contract Documents[; and] Has evidence that all the Subcontractors he proposes to use hold all valid necessary state, county and local licenses or certificates of competency covering all operations of said Subcontractors. The amount of Work each Bidder intends to perform with his own organization and the amount of Work he intends to Subcontract. The qualifications of the Subcontractors that the Bidder proposes to use. The Owner also reserves the right to reject the Proposal of a Bidder who has previously failed to perform properly or to complete contracts of a similar nature on and in a competent and high quality manner. ITB Section 2.18 states that the term of the contract will be three years. ITB Section 2.19 provides: The Contractor shall at all times enforce strict discipline and good order among his employees and the employees of any subcontractors, and shall not employ on the Work an unfit person or anyone not skilled in the Work assigned to him. . . . At present, Turf Management has the contract with Walnut Creek to maintain the landscaping under its jurisdiction and has the contract with the Walnut Creek homeowners' association, which is a separate entity, to maintain the landscaping under its jurisdiction. These two areas often exist side-by-side throughout the development. For about four years, Turf Management has had the contract with Walnut Creek, which was unaware, until the subject procurement, of the legal requirement that it obtain these services by competitive bidding. There is no dispute that all bidders timely submitted their bids. The four apparent lowest bids received by Walnut Creek were, in order from lowest to highest, Landscape Service Professionals, Mainguy, Superior Landscaping, and Turf Management. Landscape Service Professionals did not include with its bid any similar contracts, so its bid was found to be nonresponsive. Landscape Service Professionals has not protested the proposed award or intervened in these cases, so its bid is not further considered in this recommended order. On its face, the bid of Superior failed to include references to similar contracts. The references in Superior's bid are an impressive array of governmental agencies and public entities, as well as a single Marriott hotel, but not one is a residential development of any kind. This was a material variance from the ITB that rendered Superior's bid unresponsive. The bid of Turf Management includes one similar contract--that of Walnut Creek. However, of the remaining four references, two are clearly commercial or industrial (Best Equipment and Hugh[es?] Supply), one is unclear as to its nature but does not appear to be residential ("Lesco"), and one is residential, but with no indication as to size ("Pembroke Isles HOA [Homeowners Association]"). The issue of the size of Walnut Creek emerges when considering Mainguy's bid, as Superior's bid contained no residential references and the only potentially similar contract in Turf Management's bid was its existing Walnut Creek contract. Nothing in the ITB supplies the size of Walnut Creek, by population or area to be landscaped. There is an incidental statement by a Board member, as noted below, of 985 homeowners in Walnut Creek. This fact is generally reinforced by the map of Walnut Creek that is ALJ Exhibit 1, which depicts approximately 893 lots. The bid of Mainguy includes one similar contract--that of Inverrary Association, which represents over 8000 units and 17,000 residents. However, of the remaining 12 references, three are commercial (Broward Mall, Lakeside Office Center, and Town Center at Boca Raton) and nine are residential, but either smaller than Walnut Creek (Versailles at Wellington with 450 single family homes and Victoria Grove with 617 single-family homes) or of an unspecified size. Except for some mention of Superior's failure to identify similar contracts in its bid, neither the Board during its deliberations nor the parties and witnesses during the hearing addressed these variances from the ITB, which clearly requires "similar contracts," implying more than one. However, there is a considerable difference between Superior's bid, which, on its face, cites no similar contracts, and the bids of Turf Management and Mainguy, which, on their face, cite one such contract each. Further, the consultant checked Mainguy's references prior to the Board meetings and found similar "contracts." Under the circumstances, the failure of these two bids to cite more than one similar contract were minor irregularities or technical errors that Walnut Creek could, and did, waive. The errors themselves and their correction conferred no competitive advantage on Mainguy and Turf Management. The bid forms submitted by Mainguy, Superior, and Turf Management were also flawed in their treatment of annuals. Mainguy's bid form showed a unit price of $1.75 for the first two years, but multiplied this unit price by 6000 plants each year; for the third year, the total suggested that Mainguy raised the unit price to about $1.79 per plant, which, again, it multiplied by only 6000 plants. Superior's bid form showed a unit price of $2.25 the first year, $2.35 the second year, and $2.45 the third year, but multiplied each unit price by only 2000 plants for each year. Turf Management's bid showed a unit price of $1.25 for the first year, $1.31 for the second year, and $1.38 for the third year, but never multiplied these unit prices by anything. Pursuant to ITB Section 2.07(3), the consultant tabulated the bids by extending the unit prices proposed by each bidder (and correcting a mistake in arithmetic by Superior). As a result, Mainguy's bid was $1,246,494, Superior's bid was $1,249,318, and Turf Management's bid was $1,283,789 Ignoring its own flaw in extending the annual unit prices, Superior cited Mainguy's failure to extend unit prices of annuals as the reason why Superior, as the second lowest bidder, should be awarded the contract rather than Mainguy. Under the circumstances of these cases, however, the errors or omissions of each bidder in failing to extend the unit prices of the annuals correctly were minor irregularities or technical errors that Walnut Creek could, and did, waive. The errors themselves and their correction conferred no competitive advantage on any of the bidders. After the bids had been tabulated, the Board of Supervisors of Walnut Creek (Board) met on July 24, 2007, to conduct its business, which included consideration of the subject bids. At the start of the meeting, the Board recognized their consultant, who recommended that, based on the bids, the Board select Mainguy. The consultant stated that he had contacted two references involving similar contracts, and both customers were satisfied with their landscape maintenance service. At the time, the consultant had not checked the contracts of Superior because Mainguy was the lowest bid. (The consultant testified that, after both Board meetings, he contacted the references of Superior and found that the contracts were not similar; as noted above, it was clear from the face of the Superior bid that the cited contracts could not be similar because none of them was residential in nature.) The minutes of the ensuing discussion at the July 24 Board meeting are Joint Exhibit 9. The discussion covers a wide range of issues. A brief discussion concerned how certain bidders had combined items, but this did not seem to cause any Board member a serious problem, at least until just prior to the award decision, as noted below. The first serious concern was raised by Board member Gross, who said he had a "problem" with bringing another company in to do the landscape maintenance when Turf Management would continue to do the same work for the adjacent homeowners' association property. When the District Manager, who is employed by the same company that employs the consultant, stated that the law required Walnut Creek to go to bid for this work and then to take the lowest bid from a qualified bidder, Board member Gross replied that the cost difference between the Mainguy and Turf Management was $13,000 between "who we prefer to keep and the people who you are recommending." In fact, the annual difference is a little less than $13,000, and the difference over the three-year term of the contract is $37,272. Board member Ross then asked, "the final decision is ours to make?" Walnut Creek counsel replied, "it is but since this is a bidding process, you need to have a rationale for selecting for instance Turf Management over the three other bidders . . .." Board member Gross responded, "Turf Management has been here for six years, we're extremely pleased with their service, we know what we're getting, we know the people who are here, so for $13,000 a year, that's why I'm trying to understand what we have, what can we do, like I said, I don't want to have to bring another company, crew and cross over." After some more discussion, Walnut Creek counsel summarized by noting that they had heard some explanations as to why the bids of Landscape Service Professionals and Superior were not responsive, and, if the Board preferred, they could defer consideration of the matter until the next meeting, at which Mainguy and Turf Management could make presentations. Board member DeFalco then stated that they had just experienced a year of poor landscaping due to the poor performance of a former management company unrelated to these cases, and they did not want to subject the 985 homeowners to another situation like that. The consultant assured the Board member that that was why the ITB and contract were so detailed and agreed with the attorney's suggestion that the Board ask Mainguy and Turf Management to make presentations. After a brief discussion, in which Board member DeFalco expressed concern about having strangers in their property, Board member Gross moved to invite representatives from Mainguy and Turf Management come to the next Board meeting and submit to interviews. The motion passed. The minutes of the next meeting of the Board, on August 7, 2007, are Joint Exhibit 10. The Mainguy representative, who is president and owner of the company, spoke first and gave a short history of his company. In response to a question from Board member Gross about the reasonableness of a bid item regarding tree trimming, the Mainguy representative explained that they do substantial work in tree-trimming, but try not to overbid this item because it is an expensive workers- compensation classification. He later added that palm trimming was under a different category in the bid form. The next question, also from Board member Gross, concerned hurricane response and the presence of two landscape maintenance companies in the development. Halving the difference in cost to $20,000 on a $1.2 million contract, Board member Gross asked what Mainguy's response time would be to check out the development after a hurricane and why should residents have two companies present after the hurricane, especially when Turf Management had been out within four hours after the storm to clear streets so residents could operate their vehicles. The Mainguy representative replied somewhat unresponsively, stressing the quality of the general work that they do. Given a second chance to answer the hurricane-response question (or perhaps because he had been interrupted before finishing his response), the Mainguy representative said that, in advance of each storm season, they ask each customer to instruct them as to whether it wants Mainguy to respond automatically to storms and to provide some financial parameters for the cost of the debris-clearing work that it wants Mainguy to perform. The Mainguy representative stated: "As soon as the wind ceases, you're obviously extraordinarily top priority to us and our shop is about 20 minutes from here." Board member Gross followed up by asking the Mainguy representative how they would gear up, in terms of personnel, to service the Walnut Creek contract. The Mainguy representative said that they would not have to hire significantly, but existing ground crews would handle grounds maintenance, and established trimming crews would handle the tree trimming. Clearly trying to show that the employees to be assigned to Walnut Creek would be trained and experienced because he would draw them from his existing staff, the Mainguy representative assured the Board that Mainguy would "not be placing any new crews on your property, that is not our intention, nor do we have a need to do so." In response to a question from Board member Ross about hurricane response time, the Mainguy representative stated that they would rank customers based on the size of the contract, and Walnut Creek's contract would be of such a magnitude that it would justify an "immediate response." Board member Ross asked whether Mainguy would need to hire additional employees to respond timely to all of its customers, and the Mainguy representative replied that they had sufficient personnel and resources to handle the Walnut Creek property, although it was possible that they would add a small trim crew. Board member DeFalco restated the concern about having two companies onsite and asked what would happen if a tree fell half in Walnut Creek property and half in a resident's property. She added that, in the past, one company had both accounts and just removed the tree without issues. The Mainguy representative responded by observing there was a billing question, perhaps implying that such a distinction would exist whether one or two companies serviced the development. But Board member Gross replied that there was still a question, if there are two companies, about who should be called. Board member DeFalco agreed with Board member Gross, adding that she did not want two lawn companies arguing over whose responsibility it is to remove fallen trees. After the consultant suggested that there was a logical way to allocate these responsibilities, the Mainguy representative added that it would be their intent to try to win the homeowners' association business and they would be highly motivated. Board member Gross then stated that Mainguy did not have its own mulching company, although he conceded that none of the bidders did, but asked whether Mainguy's bid for mulching was just an "estimated bid, a guesstimate for the property?" The Mainguy representative replied that it was a firm bid from a mulching firm. A representative of the property management company then asked the Mainguy representative if they had any contracts where there were two landscape maintenance companies onsite. The Mainguy representative said they did and it was not uncommon. The consultant asked if Mainguy was familiar with FEMA reimbursement procedures, and the representative said they were, although he admitted that they had not participated in a FEMA reimbursement. In response to an irrigation question from Board member Gross, the Mainguy representative said that they were familiar with the requirements and had been at the first site inspection. This concluded the Mainguy presentation. The Turf Management representative, who was the president and owner of the company, gave a brief history of his company, its longstanding employees, and factors that set it apart from other companies--that is, the presence of a certified arborist and landscape designer, experience in fertilizer applications and storm debris cleanup, and an outside supervisor with whom Walnut Creek has worked for most, if not all, of the four years that Turf Management had had the contract. After the Turf Management representative had answered a few questions, counsel to the Board stated that the Board could find that Turf Management was the lowest responsible bidder, as long as they had "rational reasons." Counsel suggested that, if that was what the Board wanted to do, someone should make a motion and "state for the record what you think some of those reasons are that you like to go forward with Turf Management as opposed to Mainguy " Board member Munju, newly appointed to the Board at that meeting, spoke first and said that he has seen the job done by Turf Management, especially after Hurricane Wilma, when they responded very quickly while the rest of the city struggled with storm debris. Because the price difference was small, he preferred Turf Management. Board member Gross spoke next and agreed with Board member Munju. He said that he found Mainguy's treatment of palm maintenance confusing, although it does not appear that he was actually confused as to this part of the Mainguy bid, nor was there anything confusing about it. Mainguy's bid clearly included a reasonable cost for trimming and maintaining the palm trees. Next, the consultant spoke, again naming Mainguy as the most qualified responsible bidder and suggesting that the level of comfort that Board members had with Turf Management is not what Walnut Creek would be paying for. The District Manager spoke next, reminding the Board that the difference between the two bids was about $40,000 over three years. Counsel then confirmed with them that they had made no substantive changes when tabulating the bids. At this point, Board member Ross moved to table the question until they could visit some of Mainguy's properties. Board member Gross said that he was not going to Palm Beach County to see their work. After a comment by the District Manager, Board member Gross said, "There's a motion on the floor right now. You made a motion to approve who?" Board member Munju replied, "Yes, I made a motion to approve Turf Management." Board member Gross answered, "Ok." Without further discussion, the motion carried unanimously to accept the bid and proposal of Turf Management. The minutes reveal that, in response to the advice of its counsel to identify "some" of the reasons for selecting Turf Management over Mainguy, the Board identified two reasons: 1) Turf Management's demonstrated good record in responding to storm damage and 2) a perceived defect in the Mainguy bid as to palm maintenance. Walnut Creek's proposed recommended order identifies the Board's grounds for rejecting the Mainguy bid as: 1) Mainguy could not meet its contractual obligations because it did not intend to hire additional employees; 2) Mainguy did not have sufficient experience in responding to storms and processing claims through FEMA; and 3) two landscape maintenance contractors within the development presented the potential for conflicts and an adverse impact on the residents. The grounds identified in Walnut Creek's proposed recommended order reflect objections raised at various points during the Board deliberations over the bids, although, except for experience in responding to storms, these objections were not voiced during the brief time that the Board actually discussed the two bids after the presentations and before accepting the Turf Management bid. This Recommended Order addresses all of the objections raised at various times to the Mainguy bid, even though the Board did not raise several of them brief discussion preceding its vote to accept the Turf Management bid. Therefore, the grounds for implicitly rejecting the Mainguy bid are: 1) perceived confusion as to the treatment of palm tree maintenance costs; 2) inadequate staffing due to Mainguy's stated intention not to hire new employees (except possibly a small trim crew); 3) insufficient experience responding to storms and processing FEMA reimbursement claims; and 4) the appearance of a second landscape maintenance contractor on the Walnut Creek property with the potential for conflicts and adverse impacts on the residents. As noted above, the Board's ground for rejecting the Superior bid was that it was unresponsive for its failure to include similar contracts. The consultant testified that he later checked the Superior references and confirmed that the contracts were not similar. Notwithstanding the concession by Turf Management in its proposed recommended order that all three bidders were qualified to perform the work, the Board properly concluded that Superior's bid, on its face, was nonresponsive and implicitly rejected it for this reason. The Mainguy bid properly accounted for the expenses associated with maintaining palm trees, and the Mainguy representative clearly explained this fact to the Board. To attempt to justify rejecting the Mainguy bid on this ground is irrational and completely unsupported by the record. It is also irrational and unsupported by the record to reject the Mainguy bid due to the failure of the bid, or the Mainguy representative at the Board meeting, to undertake to hire new employees. The ITB does not require that a bidder hire new employees for this contract. The requirement, in ITB Section 1.08, of trained staff somewhat militates against such a requirement. A bidder may have overstaffed in anticipation of new work or decided to terminate a less profitable contract, if it won the Walnut Creek contract. It is not irrational to prefer a contractor that has substantial experience in responding to storm damage and experience in filing FEMA reimbursement claims. However, the ITB requires neither, although it addresses this subject by requiring only that the contractor respond to Walnut Creek within 24 hours after a storm. Mainguy has accepted this contractual requirement. When asked about it, the Mainguy representative explained, logically enough, that Mainguy could respond quickly because it was located only 20 minutes from Walnut Creek and would respond quickly because the Walnut Creek contract would be a very large one for his company, which would be sufficient motivation to serve Walnut Creek first after a storm has cleared the area. It is not necessary to consider the rationality of preferring that a single contractor serve Walnut Creek and the homeowners' association. The ITB does not contain this requirement, which would limit the potential bidders to one, Turf Management. As noted in the Conclusions of Law, under the present circumstances at least, a requirement of this type by Walnut Creek would essentially permit it to circumvent the statutory requirement to obtain these services by competitive bid. Mainguy and Superior timely protested Walnut Creek's decision to award the contract to Turf Management. Walnut Creek then contracted with the Division of Administrative Hearings to conduct the hearing and issue a recommended order.
Recommendation It is RECOMMENDED that the Walnut Creek Community Development District enter a final order dismissing the protest of Superior Landscaping and Lawn Service, Inc., granting the protest of Mainguy Landscape Services, and taking such further action as is permitted by law. DONE AND ENTERED this 21st day of December, 2007, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 21st day of December, 2007. COPIES FURNISHED: Gerald L. Knight Billing, Cochran, Heath, Lyles Mauro & Anderson, P.A. Post Office Box 21627 Fort Lauderdale, Florida 33335-1627 Michael J. Pawelczyk Billing, Cochran, Heath, Lyles, Mauro & Anderson, P.A. 888 Southeast Third Avenue, Suite 301 Fort Lauderdale, Florida 33316 Jeffrey S. Siniawsky Jeffrey S. Siniawsky, P.A. 8551 West Sunrise Boulevard, Suite 300 Plantation, Florida 33322 David Waddell Turf Management 12600 Southwest 125th Avenue Miami, Florida 33186 Mark Dearman Dearman & Gerson, P.A. 8551 West Sunrise Boulevard, Suite 300 Plantation, Florida 33322 Eddie Cora Qualified Representative Superior Landscaping and Lawn Service, Inc. Post Office Box 35-0095 Miami, Florida 33135
Conclusions An Administrative Law Judge of the Division of Administrative Hearings has entered an Order Closing File in this proceeding. A copy of the Order is attached to this Final Order as Exhibit A. Filed April 15, 2011 2:00 PM Division of Administrative Hearings FINAL ORDER NO. DCA 11-GM-067
Other Judicial Opinions REVIEW OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030(b) (1) (C) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT’S AGENCY CLERK, 2555 SHUMARD OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100, WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. FINAL ORDER NO. DCA 11-GM-067 CERTIFICATE OF FILING AND SERVICE I HEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Community Affairs, and that true and correct copies have been furnished by the manner indicated to each of the persons listed below on this AV day of April, 2011. Paula Ford Agency Clerk By Inter-Agency Mail The Honorable Bram D. E. Canter Administrative Law Judge Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 By Electronic Mail Thomas W. Reese, Esquire 2951 61st Avenue South St. Petersburg, FL 33712 TWReeseEsq@aol.com Steven T. Williams, Esquire Office of the County Attorney Harmon Turner Bldg, 8th Floor 3301 East Tamiami Trail Naples, FL 34112 StevenWilliams@colliergov.net Richard D. Yovanovich, Esquire Goodlette, Coleman & Johnson, P.A. 4001 Tamiami Trail North, Suite 300 Naples FL 34103 ryovanovich@cyklawfirm.com FINAL ORDER NO. DCA 11~GM-067 Michael A. Durant, Esquire Conroy, Conroy & Durant, P.A. 2210 Vanderbuilt Beach Road, Suite 1201 Naples, FL 34109 mdurant@ccdlegal.com Lynette Norr, Esquire Assistant General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Lynette .Norr@dca.state.fl.us
Findings Of Fact On or about April 5, 1988, Petitioner filed an application for a variance to replace an existing four foot fence extending to the seawall on his property at 643 Harbor Island, Lot 12 Island Estates, Clearwater, Florida. The subject property is zoned RS-6. Petitioner had already replaced his previous fencing prior to the filing of this application with wooden fencing which extends on the north and south side of his property through the setback to the seawall. The Development Code Adjustment Board considered Petitioner's application at its meeting on May 12, 1988, and based upon the Petitioner's explanation that the variance was sought simply to replace an existing fence that had termite damage, the Board approved his application on a 3 to 2 vote. The variance approval was conditioned upon the Petitioner obtaining a building permit within one month of the approval. Petitioner failed to obtain the required building permit, and no excuse was offered for this failure. Therefore, he had to reapply for the variance. On or about July 21, 1988, Petitioner filed his variance reapplication. The Development Code Adjustment Board considered this reapplication on August 25, 1988, at which time Petitioner again stated that he was simply replacing an existing fence. Due to a tie vote, consideration of the reapplication was continued to the Board's meeting of September 8, 1988. At the meeting on September 8, he explained for the first time that while the fencing on the south side of his property was simply the replacement of a previous fence which had extended to the seawall, the fencing on the north side was not. The previous fence on the north side of his property had stopped prior to the fifteen foot setback. With this clarification, the Board approved his variance reapplication for the south side of his property, but denied the variance for the north side. Petitioner has timely appealed the denial of his variance reapplication as it relates to the north side of his property. Petitioner testified at hearing that prior to the construction of his current wooden fence, he had a wood fence all the way to the seawall on the south side of his property. Since he had to replace that fencing due to termite damage, he took the opportunity to also replace and extend the wooden fencing on the northern side of his property through the setback. This action was not based on any hardship, but simply because he and his family felt it would look better if he had the same fencing on both sides of his property. It is clear and undisputed that Petitioner constructed a new fence on the north side of his property through the setback without obtaining a variance or permit. He did this simply for aesthetic reasons, and not due to any hardship. He failed to disclose this in his applications, or when the Board met on May 12 and August 25, 1988 to consider this matter.
The Issue Whether Rule 27G-1.06(2) and Rule 27G-1.08(4), Florida Administrative Code, or either of them, is an invalid exercise of delegated legislative authority?
Findings Of Fact The parties have stipulated that Fairfield Communities, Inc. (Fairfield) has the requisite standing to challenge the rule provisions at issue and that Friends of Fort George, Inc., (Friends), Florida Wildlife Federation (FWF) and Florida Audubon Society (Audubon) have standing to participate as intervenors in support of these rule provisions. The Florida Land and Water Adjudicatory Commission (FLWAC) is the state agency that promulgated the challenged rules. The Fort George DRI case, No. 86-4127, began on August 1, 1986, when the Department of Community Affairs took an appeal of the development order entered by the City of Jacksonville on June 12, 1986 on grounds The MLUP does not accurately show or locate the DER jurisdictional line on the western side of the island from which buffer areas required by the ADO are to be measured . . . The MLUP does not properly or accurately depict or locate buffer areas surrounding the sloughs on the western side of Fort George Island. Exhibit B to the Prehearing Stipulation. Together with others, the Intervenors in the present case filed, in the Fort George DRI case, No. 86-4127, a motion to intervene as of right and request for consideration of additional issues on August 7, 1986. The intervenors in No. 86-4127 sought consideration of a wide range of issues in the Fort George DRI case, including questions concerning Blue Pond, the perimeter buffer zone, the interior habitat, weirs, berms, dikes and hydraulic connections, the adequacy of the water supply, the effect of the Game and Fresh Water Fish Commission's disapproval, the placement of various boundaries, and whether "Fairfield has failed to provide adequate protection of the microclimate and ecology of the Rollins Bird and Plant Sanctuary as mandated by the ADO . . ." Exhibit C to the Prehearing Stipulation. In filing their motion to intervene as of right and request for consideration of additional issues in No. 86-4127, Friends, Audubon and FWF expressly relied on Rule 27G-1.06, Florida Administrative Code. The portion under challenge here provides: (2) Motions to intervene filed with the Commission within 30 days of the filing of a notice of appeal may request the Commission to consider issues raised in the record below but not raised by the parties to the appeal. Rule 27G-1.06, Florida Administrative Code. In the order of transmittal, entered in No. 86-4127 on October 15, 1986, FLWAC denied consideration of every issue raised by the intervenors, except for the issue concerning the Rollins Bird and Plant Sanctuary, and added a related issue, also concerning the Rollins Bird and Plant Sanctuary, citing Rule 27G- 1.08, Florida Administrative Code. The portion of that rule under challenge here provides: Within 60 days of receipt of a notice of appeal, the Commission shall meet to review the issues raised by the parties. If the Commission determines that an issue of statewide or regional importance was not raised by the parties but is necessary to its disposition of the appeal, the Commission shall specify said issue and shall specify whether the issue shall be the subject of review based on the record made below, additional evidence or a combination thereof. New issues shall not be raised by the parties or other persons after this Commission meeting. At this meeting, the Commission may also dispose of procedural motions, including motions to intervene, which have been filed within 30 days of the filing of the notice of appeal. Rule 27G-1.08, Florida Administrative Code. Fairfield, as the applicant for the development order in No. 86- 4127, questions FLWAC's authority to promulgate rules that allow FLWAC to consider issues not raised by the party who took the DRI appeal, whether sua sponte or on motion of an intervenor.
