12-002899 Landings At Cross Bayou, Lllp vs. Florida Housing Finance Corporation Status: Closed Recommended Order on Tuesday, January 22, 2013.

Summary: Petitioner established that agency erred in scoring competing application for federal Low Income Housing tax credits, and that Petitioner is therefore entitled to "but for" credits in the next funding cycle.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LANDINGS AT CROSS B AYOU, LLLP, )

)

Petitioner, )

)

vs. ) Case No . 1 2 - 2 899

)

FLORIDA HOUSING FINANCE )

CORPORATION , )

)

Respondent. )

)

RECOMMENDED O RDER

A formal hearing was conducted in this case on October 23,

2012 , in Tallahassee , Florida, before Lawrence P. Stevenson, a

duly - designated Administrative Law Judge with the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Michael P. Donaldson, Esquire

Carlton Fields, P.A.

215 South Monroe Street, Suite 500

Post Office Drawer 190

Tallahassee, Florida 32302 - 0190

For Respondent: Wellington H. Mef fert , Esquire

Florida Housing Finance Corporation

Suite 5000

227 North Bronough Street

Tallahassee, Florida 323 01

STATEMENT OF THE ISSU E

The issue is whether Florida Housing Finance Corporation

("Florida Housing") erred in its scoring of Universal Cycle

Application No. 2011 - 106C.

PRELIMINARY STATEMENT

On July 2, 2012, Petitioner Landings at Cross Bayou, LLLP

("Landings") filed a Petition for Administrative Hearing with

Florida Housing. In the Petition, Landings contested Florida

Housing's scoring decisions regarding Universal Cycle

Application No. 2011 - 106C, also referred to herein as the MLF

Towers application. Landings had submitted an application

directly competing with the MLF Towers application for funding

pursuant to the federal Low Income Housing Tax Credit program

("Tax Credit program") . Landings alleged that it would have

received funding but for Florida Housing's erroneous scor ing of

the MLF Towers application.

On September 4 , 2012, Florida Housing referred the case to

the Division of Administrative Hearings for the assignment of an

Administrative Law Judge and the conduct of a formal

administrative hearing. The case was set fo r hearing on

October 23 , 2012. The hearing was convened and completed as

scheduled.

At the outset of the hea ring, the parties stipulated to the

admission of Joint Exhibits 1 through 15, which were duly

admitted into evidence. Joint Exhibit 15 was the d eposition

testimony of Phillip Lazzara, the Zoning Official for the City

of St. Petersburg. Landings presented the testimony of Paula

Rhodes, director of development in the Southeast for Norstar

Development, the managing general partner for the Landings

p roject. Ms. Rhodes was accepted as an expert in the universal

application process. Landings' Exhibit 1 was admitted into

evidence. Florida Housing presented the testimony of Stephen

Auger, its executive director , who was also accepted as an

expert in th e universal application process . Florida Housing

offered no exhibits of its own into evidence.

The one - volume transcript of the hearing was filed at the

Division of Administrative Hearings on November 1 , 2012. The

parties timely filed their P roposed R eco mmended O rder s on

November 13 , 2012.

Unless otherwise noted, all statutory references are to

Florida Statutes (201 2 ).

FINDINGS OF FACT

1. Landings is a Florida limited liability partnership

with its address at 200 South Division Street, Buffalo, New York

14204. Landings is in the business of providing affordable

rental housing units in Florida .

2. Florida Housing is a public corporation created by

s ection 420.504, Florida Statutes, to administer the

governmental function of financing or refinancing of af fordable

housing and related facilities in Florida. Pursuant to section

420.5099, Florida Housing has been designated as the housing

credit agency for the state within the meaning of 26 U.S.C.

§42(h)(7)(A) 1 / with the responsibility to administer the feder al

Tax Credit program in Florida. Florida Administrative Code

C hapter 67 - 48 sets forth the rules for the program.

3. The 2011 Universal Cycle Application, through which

affordable housing developers appl ied for funding under various

affordable housing pr ograms administered by Florida Housing , was

adopted as the Universal Application Package or UA101 6 (Rev. 2 -

11) by Florida Administrative Code R ule 67 - 48.004(1)(a) . The

Application Package cons ists of Parts I through V with e xhibit

forms and i nstructions.

4. Be ca u s e t h e d e m a n d f o r shares of low income housing tax

credits e x c e e d s th e credits a v ail a b l e un d e r t h e T a x C re d i t

p r o g ra m , qu a l i f i e d a ff o r d a bl e housing d e v e l o p m e nt s m u s t c o m p e t e

f o r thi s f undin g . T o a s s e s s th e r e l a ti v e m e r i t s of p r opo s e d

d e v e lo p m e n t s , F lo r id a H ou s in g h a s e s t a blis h e d a c o m p e titi v e

a p p li c a tion p r o c e s s kn o w n a s th e U n iv e r s a l C y c l e . The

application process for the 2011 Universal Cycle is set forth in

rules 67 - 48.001 through 67 - 48.004 and may be summarized as

follows:

a. T h e publ i c a t i o n a n d a dop t io n b y r u l e o f a

Universal Application p a c k a g e ;

b. T h e c o m p l e tio n a n d su b m i ssi o n o f

a ppl i ca tion s b y d e v e lop e r s;

c. F l o r id a H o u sin g ' s p r el i m i n ar y s c o r in g o f

a ppl i c a tions ;

d. A n i nit i a l r oun d o f a d m in is t r a tiv e

c h al l e ng e i n whi c h a n a pp l i c a n t m ay t a k e

issu e wit h F lo r i d a H ousin g ' s s c o r in g o f

a n o th e r a p pli c a tio n b y f ilin g a N ot i c e o f

P o ssib l e S c o r in g E rr o r ( " N O PS E ") ;

e. F l o r id a H o u sin g ' s c onsi d e rat i o n o f t h e

N O PS E s su b m i tt e d , w i t h not i c e t o a ppli c a nt s

o f a n y r e s ultin g c h a ng es in t h e i r

p r el i m i n a r y s c o r e s;

f. A n opp o r tu n i t y f o r t h e a p p li c a n t t o

sub m i t a d ditio n a l m a t er i a l s to F l o r id a

H ous i n g t o " c u r e " a n y it e m s f o r w h i c h th e

a p pli c a n t w a s d ee m e d t o h a v e f ai l e d t o

s ati s f y t h re s ho l d requirements o r r e c ei v e d

l e s s t h a n t h e m a x i m um s c o r e ; 2 /

g. A s ec on d r oun d o f a d m in is t r a tiv e

c h a ll e n g e s w h e r e b y a n a ppl i c a n t m a y r a i s e

s c o r in g i s su e s a r isin g fr o m a not h e r

a pp l i c a n t ' s c u r e m a t er i a l s b y f ilin g a N ot i c e

o f A l l e g e d D e f i c i e n c y ( " N O AD " ) ;

h. F l o r id a H ou s in g ' s c ons i d e ra t io n o f t h e

N OAD s su b m i t t e d , w it h not i c e t o a p p l i ca n t s

o f a n y re sulti n g c h a n g e i n th e i r s c o r e s ;

i. A n opp o r tun it y f o r a ppl i ca n t s t o

c h a ll e n g e , v i a i n f o r m a l o r f o r m a l

a d m i n ist r a ti v e p r o c e e din gs , F lo r i d a H o u sin g ' s

e v a lu a t io n o f a n y i t e m f or wh i c h th e

a ppl i ca n t w a s d ee m e d t o h a v e f ai l e d t o

s a t i s f y th r e shol d requirements o r re cei v e d

l e s s t h a n t h e m a xi m u m s c o re ;

j. F in a l r a nkin g s c o r e s , r a nk i n g o f

a p p li c a tion s , a n d a ll o ca t io n o f H ou s ing

Cr e dit s or other f undin g t o s u cc e ss f u l

a pp l i c a nt s a s w e l l a s th o s e w h o s u c c e s s f ull y

a p p e a l t h r oug h t h e a dop t io n o f f i n a l o r d e r s;

and

k. A f i n a l a pp e a l s p r o c e s s th r o ug h whi c h

a pp l i c a nt s m a y b e a ll o ca t e d a w a r d f undin g

f r o m f ut u r e c r e dit s b y m a kin g th e c a s e th a t

their application would have received

funding " bu t f o r " s p ec i f i c s c o r i n g e r r o r s

F lo r id a H o u sin g made i n their application

o r competing a ppl i c a tions .

5. On December 6, 2011, Landings , along with other

competing applicants , submitted an application to Florida

Housing for funding in the 2011 Universal Cycle. Landings

sought Tax Credit funding to finance th e development of its

project, a 184 - unit apartment complex in St. Petersburg,

Florida . The Landings project was built decades ago as a public

housing project and requires major rehabilitation. All of the

units in this complex receive rental assistance fr om the United

States Department of Housing and Urban Development ("HUD") .

6. In the 2011 application cycle, Florida Housing set

aside 35 percent of its allocation for the preservation of

existing subsidized properties. In Pinellas County, two

preservatio n projects, Landings and MLF Towers, directly

competed for this preservation set - aside funding. 3 /

7. O n Jun e 8 , 20 1 2 , F lo r id a Housin g ' s B o a r d o f Di r e c to r s

a d o pt e d " F in a l P os t - A pp e a l S c o re s a n d R a nkin g . " L a nding s m e t a l l

o f F l o r i d a Hou s ing ' s t h r e shold a ppl i cat i o n r e qu i r e m e nt s , r e c e i v e d

t h e m a xi m u m b a s e a p pli c a tio n s c o r e o f 7 9 points ou t o f 7 9 point s ,

t h e m a xi m u m a b ili ty - t o - p r o c ee d t i r e b r ea k e r s c o r e o f 6 . 0 p oint s

a nd t h e 2 3 . 7 5 p r ox i m it y ti e - b re a k e r point s . T h i s s c o r e woul d

h a v e p l a c e d L a nding s i n t h e f u ndi n g r a n g e " b u t f o r " F l o r i d a

H ousi n g's scoring of the MLF Towers application.

8. Part III of the U ni v e r s a l App l i c a tio n Package r e qui r e s

a n a ppl i ca n t t o p r ovi d e i n f o r m a tio n c on ce r nin g t h e p r opo s e d

d e v e lo p m e n t. Section C of Part III r e qui r e s th e appl i cant to

provide i n f o r m a tio n c o n c e r nin g the p r opo s e d d e v e lo p m e n t ' s

" A bil it y T o P r o c ee d , " i n c ludin g i n f o r m a tio n c on c e r nin g S ite

C on t r o l a n d Z o nin g .

9. In its initial application , MLF Towers submitted

documentation to satisfy the Ability T o Proceed requirements .

Its Site Control information include d Exhibit 27, an agreement

for purchase and sale of the subject properties. The MLF Towers

project included "scattered sites" as defined in rule 67 -

48.002(105), meaning that the proposed development site

comprises pro perties that are not contiguous. Exhibit 19 to the

MLF Towers application provided the addresses and geographic

coordinates of each of the three properties in the project. The

addresses were on 2nd Avenue South and 3rd Avenue South in

St. Petersburg. ML F Towers also submitted documentation

indicating that the zoning for the Development site was

" Downtown Center - 1 " (" DC - 1 "), a designation providing for

intense mixed - use development .

10. The two documents that identified the zoning as DC - 1

were Exhibit 2 6 , " Local Government Verification of Status of

Site Plan Approval For Multifamily Housing ," and Exhibit 32

" Local Government Verification that Development is Consistent

with Zoning and Land Use Regulations ." Both of these exhibits

were signed by Phillip T . Lazzara, the Zoning Official for the

City of St. Petersburg. 4 /

11. Landings submitted a NOPSE to Florida Housing pointing

out an inconsistency between the a ddress of th e MLF Towers

d evelopment site as shown in Exhibit 19 and the legal

description provid ed with the a greement for p urchase and s ale

submitted as Exhibit 27. The legal description in Exhibit 27

referenced an 1890 plat showing different street names than

those used in the Application to identify the Development site.

12. In response to Landin gs' NOPSE, F l o r i d a H ou s in g issued

a scoring summary d a t ed March 2 7 , 2 0 1 2 , that f oun d as f o l l o ws:

Ba s e d o n a p l a t p r o v id e d i n a NO P S E , th e

l e g a l d e s c r i pt i o n p r o vi d e d w i t h t h e

Ag ree m e n t f o r P u r c h a s e a n d S a l e i s

i n c on s i s t e n t w i t h th e Sca t t er e d S i t e s

l o c a t i o n s l i s t e d o n Ex h ib i t 19 . T h e l e g a l

d e s cr i p t ion s h o w s t h e s i t e s t o b e l o ca t ed o n

7th A v e nue o r th e n o r t h s i d e o f 8th A v e nue .

( L o t s 1 4 t h r ou g h 1 6 o f B l o c k 3 9 , a p o r t i o n

o f Lo t 3 a n d a l l o f L o t s 4 th r o u g h 8 o f

B l o ck 5 2 , a n d L o t 1 7 o f B lo ck 5 2 ), w h i l e

t h e l o c a t ion s l i s t ed o n E x hi b i t 1 9 are ( i )

5 4 0 2nd A v e nue S o ut h , ( ii ) t h e n o r t h s i d e

of 2nd A v e nue S o u t h , e a s t o f 6th S t reet

S o u t h , a n d ( i i i ) n o r t h s i d e o f 3rd A v e nue

S o ut h , w e s t o f 5th S t reet S o ut h .

13. Florida Housing determined that this inconsistency

constitut ed a failure in the MLF Towers application of Part

III.C.2 of the Universal Application instructions, a threshold

item titled "Evidence of Site Control."

14. T o cure the a ddress issue raised by Florida Housing,

MLF Towers provided a letter from Mr. Lazz ara , dated

February 27, 2012, explain ing th at the street names had changed

between the time of t he 1890 plat and the present . Se v e nth a n d

Eight h A v e nu es on the 1890 plat were currently Second Avenue South

and Third Avenue South , r e sp e c ti v e l y. Mr. Lazzara 's letter

included a s "Attachment A" a n engineering map prepared by the

City of St. Petersburg 's e ngineering s ection to show the current

street addresses . At the bottom of the map was the following

notation: "ALL PROPERTIES ZONED ' CBD - 2 ' EXCEPT AS NOTED. "

15 . In his deposition, Mr. Lazzara testified that he

included the engineering map purely to illustrate that the s t r e e t

n a m es h a d c h a n g e d si n c e t h e 189 0 p l a t . M r. Lazzara stated that

the CB D - 2 z onin g c l a ss i f i cat i o n was obsolete, having been

abolished in 2007 when the C i t y ' s l a n d d e v e lo p m e n t c ode w a s

re v i s e d . 5 / Th e subj e c t p a r c e l s w e r e no t a n d c oul d n o t h a ve b ee n

z o n e d C B D - 2 a t the time of the MLF Towers application.

16 . Landings reviewed the c ure materials submitted by MLF

Towers and concluded that the applicant had not cured the

address issue because neither the plat nor the legal

description had been changed to make them consistent with one

another. MLF Towers had not cured the inconsistency; it had

merely explained it. Landing s believed it had unco vered another

inconsistency in the CBD - 2 zoning designation on the engineering

map. 6 /

17 . Landings submitted a NOA D arguing that the cure

submitted by MLF Towers included information that was

inconsistent with other information in the MLF Towers

applicati on. Exhibits 26 and 32 in the initial application

indicated that the property was zoned DC - 1, whereas the

engineering map submitted as Attachment A to the cure letter

included a statement that the property was zoned CBD - 2.

18. In its final scoring summar y issued on or about

June 8, 2012, F l o r i d a H o u s in g accepted the cure materials

submitted by MLF Towers, re j ec t ed t h e NOAD a n d r e s c in d e d t h e

p o i n t d e d u c ti o n a n d t h r e s ho l d f a i l u re i m pos e d o n the M L F T o w e r s

a p p li c a t i o n a s a r e s ul t o f t h e NO PS E .

19. On or abo ut June 25, 2012, a Norstar representative

named Richard Cavalieri sent an email to Mr. Lazzara that

attempted t o p e r s u a d e Mr. L a z zara t o st a t e t h at th e re w a s an

i n c on s i s t e n cy su f f i c i e n t t o s ho w th at M L F T o w e r s sho u l d no t

h a v e b e e n f u n d e d . Mr. Cavalieri p ointed out that a finding of

inconsistency at this late date would not affect MLF Towers'

current funding award, but would assist Landings in obtaining

"but for" funding from future tax credits. Mr. L azzara r e plied

as follows:

Hi, Rick. The subject prope rty is currently

zoned DC - 1. It used to be zoned CBD - 2 prior

to adoption of the City's new Land

Development Regulations (LDRs) in 2007. The

CBD - 2 zoning classification no longer exists.

The map that was used for the letter we

provided on Feb. 27, 2012 , was out of date

with regard to any zoning references and was

only used for the purposes of providing

clarification of what street names applied.

I hope that helps.

20. Florida Housing concluded that there can be no

inconsistency between the DC - 1 and the CBD - 2 zoning designations

because the CBD - 2 designation did not exist at any time material

to this action. Moreover, MLF Towers' Exhibit 32 provided

evidence of appropriate zoning sufficient to meet the threshold

requirements of Part III.C.4 of the Unive rsal Application, and

Florida Housing is not required to consider evidence of zoning

beyond Exhibit 32. 7 /

21. Landings contends that there was a plain inconsistency

on the face of the MLF Towers application and cure documents .

Landings argues that Flor ida Housing's established practice

mandates that it cannot look beyond the contents of the

application, attempt to gauge the subjective intent of the

applicant, or determine that a given inconsistency is not material

when dealing with inconsistencies in ap plications.

22. At the final hearing, Stephen Auger, Florida Housing's

executive director, testified as to the agency's rationale for

accepting the cure materials submitted by MLF Towers and

disregarding the apparent internal inconsistency in the zoning

designations in the MLF application. Mr. Auger testified that

Florida Housing did not believe that the engineering map included

by Mr. Lazzara created an inconsistency because Mr. Lazzara was

also the official who had signed the zoning and site plan appro val

forms that confirmed the correctness of the zoning designations in

the MLF Towers application. When directly addressing the issue of

zoning, Mr. Lazzara correctly stated that the designation was DC -

1, a statement that Mr. Auger found was not rendered ambiguous or

inconsistent by Mr. Lazzara's inclusion of the engineering map as

a demonstrative aid to show the changed street names.

23. Mr. Auger emphasized that Mr. Lazzara was the local

zoning expert, and that Florida Housing was entitled to rely on

Mr . Lazzara's explicit statement that the zoning on the subject

properties was D C - 1, regardless of the statement on the

engineering map that the properties were zoned CBD - 2 unless noted

otherwise. Mr. Lazzara was consistent in his information on the

zoning forms; t he engineering map was not submitted for a zoning

designation; therefore, the apparently contradictory statement as

to CBD - 2 zoning was disregarded by Florida Housing.

24. Mr. Auger further testified that the final result would

have been the same even if Florida Housing had preliminarily

rejected the cure materials submitted by MLF Towers and accepted

the NOAD filed by Landings. MLF Towers would have filed a

petition appealing the decision, after which

We would have gone into discovery working

to wards a trial here at DOAH. We would have

deposed Philip Lazzara. He would have said

that [CBD - 2] hasn't been in existence since

2007, and that would have been the end of the

case and we would have given MLF, you know,

the points back. . . . So we would have

wound up in the same place with MLF having

the correct zoning designation.

25. Mr. Auger testified that Florida Housing's rules

regarding inconsistencies "are about figuring out what's right . "

The notion of "inconsistency" means a dispute as to th e factual

basis of a statement in an application. Nothing submitted by

MLF Towers called into question Mr. Lazzara's express statements

that the properties were zoned DC - 1. No zoning claims were made

for the engineering map , which was submitted solely to cure an

inconsistency regarding street names .

26. Mr. Auger stated that Florida Housing "got it right

here , " and pointed to rule 67 - 48.004(9) as providing Florida

Housing the discretion to overlook an engineering map submitted

as "a cure for something else" where the zoning officer

correctly cited the zoning "on two forms specifically related to

the zoning." Mr. Auger stated, "I don't understand how you can

ask us to interpre t our rules in a way that doesn' t help us get

to the right conclusion, the fac tually accurate conclusion."

CONCLUSIONS OF LAW

27 . The Division of Administrative Hearings has

jurisdiction of the subject matter of and the parties to this

proceeding. §§ 120.569 and 120.57(1) , Fla. Stat. and Florida

Administrative Code Rule 67 - 48.005. See also Ybor III, Ltd. v .

Fla. Hous. Fin. Corp. , 843 So. 2d 344, 347 (Fla. 1st DCA 2003).

28 . T he purpose of th e Tax Credit program is to provide

funding to developers of low - income rental housing . As an

applicant fo r the limited funds allocated by Flo rida Housing,

Landings has substantial interests that are adversely affected

b y Florida Housing's scoring decisions.

29 . The general rule is that the burden of proof, apart

from a statutory directive, is on the party asserting the

affirmative of an issue before an administrative tribunal.

Young v. Dep't of Cmty. Aff. , 625 So. 2d 831, 833 - 834 (F l a.

1993); Dep't of Transp. v. J.W.C. Co., Inc. , 396 So. 2d 778, 788

(Fla. 1st DCA 1981); Balino v. Dep't of HRS , 348 So. 2d 349, 350

(Fla. 1st DCA 1977). In this case, Landings bears the burden of

demonstrating the impropriety of Florida Housing's actions in

accepting the cure submitted by MLF Towers by a preponderance of

the evidence .

30 . P u r su a n t t o sections 4 2 0 . 5 0 7 (2 2 )( h ) and 42 0 . 5 0 9 9 ,

F lo r i da H o u s in g i s a u t h o r i ze d t o in s t i tu t e a c o m p e t it iv e

a p pl i c a t io n p r o c e ss , a n d h as do ne s o by way of rule 67 - 48 . 0 04 .

31 . Florida Housing's Universal Application Package , Form

UA1016 (Rev. 2 - 11), has been adopted by and incorporated int o

r ule 67 - 48.004(1)(a) and thus itself possesses the legal effect

of a rule.

32 . Rule 67 - 48.004, titled "Application and Selection

Procedures for Developments," provides as follows, in relevant

part:

(1) When submitting an Application,

Applicants must utilize the Universal

Application in effe ct at the Application

Deadline.

(a) The Universal Application Package or

UA1016 (Rev. 2 - 11) is adopted and

incorporated herein by reference and

consists of the forms and instructions

available, without charge, on the [Florida

Housing] Corporation' s Websi te under the

2011 Universal Application link labeled

Instructions and Application or from

http://www.flrules.org/Gateway/reference.asp

?No=Ref - 00703 , which shall be completed and

submitted to the Corporation in accordance

with this rule chapter in order to apply for

the HOME and HC Program(s).

(b) All Applications must be complete,

legible and timely when submitted, except as

described below. Corporation staff may not

assist any Applicant by copying, collating,

or adding documents to an Application nor

sha ll any Applicant be permitted to use the

CorporationÓs facilities or equipment for

purposes of compiling or completing an

Application.

(2) Failure to submit an Application

completed in accordance with the Application

instructions and these rules will result in

the failure to meet threshold, rejection of

the Application, a score less than the

maximum available, or a combination of these

results in accordance with the instructions

in the Application and this rule chapter.

(3) Each submitted Applicatio n shall be

evaluated and preliminarily scored using the

factors specified in the Universal

Application Package and these rules.

Preliminary scores shall be transmitted to

all Applicants.

(4) Applicants who wish to notify the

Corporation of possible scori ng error s

relative to another Applicant' s Application

will be provided a time period for filing a

written Notice of Possible Scoring Error

(NOPSE). Such time period will be no fewer

than three (3) Calendar Days from the date

the preliminary scores are sen t by overnight

delivery by the Corporation. The deadline

for filing a NOPSE will be provided at the

time the preliminary scores are issued.

Each NOPSE must specify the assigned

Application number of the Applicant

submitting the NOPSE, the assigned

Applic ation number of the Application in

question and the scores in question, as well

as describe the alleged deficiencies in

detail. Each NOPSE is limited to the review

of only one Application' s score. Any NOPSE

that seeks the revi ew of more than one

Applicat ion' s score will be considered

improperly filed and ineligible for review.

There is no limit to the number of NOPSEs

that may be submitted. The CorporationÓs

staff will review each written NOPSE

Received timely. To be considered Received

timely, the App licant must submit one (1)

original hard copy and three (3) photocopies

of each NOPSE. The Corporation will not

consider any NOPSE submitted via facsimile

or other electronic transmission.

(5) The Corporation shall transmit to each

Applicant the NOPSEs submitted by other

Applicants with regard to its Application.

The notice shall also include the

CorporationÓs decision regarding the NOPSE,

along with any other items identified by the

Corporation to be addressed by the

Applicant, which may include financ ial

obligations for which an Applicant or

Developer or Principal, Affiliate or

Financial Beneficiary of an Applicant or a

Developer is in arrears to the Corporation

or any agent or assignee of the Corporation

as of the due date for NOPSE filing as set

fort h in subsection (4) above.

(6) Each Applicant shall be allowed to cure

its Application by submitting additional

documentation, revised pages and such other

information as th e Applicant deems

appropriate (" cures " ) to address the issues

raised pursuant to subsections (3) and (5)

above that could result in failure to meet

threshold or a score less than the maximum

available. The time period for submitting

the " cures " will be no fewer than three (3)

Calendar Days from the date the notice set

forth in subsect ion (5) above is sent by

overnight delivery by the Corporation. Such

notice will provide the deadline for

submitting the " cures. " A new form, page or

exhibit provided to the Corporation during

this period shall be considered a

replacement of that form, p age or exhibit if

such form, page or exhibit was previously

submitted in the Applicant ' s Application.

Pages of the Application that are not

revised or otherwise changed may not be

resubmitted, except that documents executed

by third parties must be submit ted in their

entirety, including all attachments and

exhibits referenced therein, even if only a

portion of the original document was

revised. Where revised or additional

information submitted by the Applicant

creates an inconsistency with another item

in that Application, the Applicant shall

also be required in its submittal to make

such other changes as necessary to keep the

Application consistent as revised . To be

considered by the Corporation, the Applicant

must submit one (1) original hard copy and

t hree (3) photocopies of all additional

documentation and revisions, and such

revisions, changes and other information

must be Received by the deadline set forth

herein. Any subsequent revision submitted

prior to the deadline shall include a

written reques t from the Applicant for

withdrawal of any previously submitted

revision(s).

(7) All Applicants may submit to the

Corporation a Notice of Alleged Deficiencies

(NOAD) in any other Application. The time

period for submitting each NOAD will be no

fewer th an three (3) Calendar Days from the

deadline for receipt by the Corporation of

the documentation set forth in subsection

(6) above. The notice set forth in

subsection (5) above will provide the

deadline for submitting the NOAD. Each NOAD

is limited only t o issues created by

document revisions, additions, or both, by

the Applicant submitting the Application

pursuant to subsection (6) above. Each NOAD

must specify the assigned Application number

of the Applicant submitting the NOAD, the

assigned Application number of the

Application in question, the pages and the

documents in question, as well as describe

the alleged deficiencies in detail. Each

NOAD is limited to the review of only one

ApplicantÓs submission. However, there is

no limit to the number of NO ADs which may be

submitted. NOADs which seek the review of

more than one ApplicantÓs submission will be

considered improperly filed and ineligible

for review. The Corporation will only

review each written NOAD Received timely.

To be considered Received timely, the

Applicant must submit one (1) original hard

copy and three (3) photocopies of each NOAD.

The Corporation will not consider any NOAD

submitted via facsimile or other electronic

transmission.

(8) The Corporation shall transmit a copy

of all NO ADs to the affected Applicant.

(9) Following the receipt and review by the

Corporation of the documentation described

in subsections (5), (6) and (7) above, the

Corporation shall then prepare final scores.

In determining such final scores, no

Applicatio n shall fail threshold or receive

a point reduction as a result of any issues

not previously identified in the notices

described in subsections (3), (4) and (5)

above. However, inconsistencies created by

the Applicant as a result of information

provided p ursuant to subsections (6) and (7)

above will still be justification for

rejection of the Application, threshold

failure, or reduction of points, as

appropriate . Notwithstanding the foregoing,

any deficiencies in the mandatory elements

set forth in subsec tion (14) below can be

identified at any time prior to sending the

final scores to Applicants and will result

in rejection of the Application. The

Corporation shall then transmit final scores

to all Applicants.

* * *

(13) The Corporation shall rejec t an

Application if, following the submission of

the additional documentation, revised pages

and other information as the Applicant deems

appropriate as described in subsection (6)

above:

(a) The Development is inconsistent with

the purposes of the SAIL, HOME, or HC

Program(s) or does not conform to the

Application requirements specified in this

rule chapter;

(b) The Applicant fails to achieve the

threshold requirements as detailed in these

rules, the applicable Application, and

Application instructions ;

(c) The Applicant fails to file all

applicable Application pages and exhibits

which are provided by the Corporation and

adopted under this rule chapter;

(d) The Applicant fails to satisfy any

arrearages described in subsection (5)

above. For purpose s of the SAIL and HOME

Programs, this rule subsection does not

include permissible deferral of SAIL or HOME

interest.

(14) Notwithstanding any other provision of

these rules, there are certain items that

must be included in the Application and

cannot be revised, corrected or supplemented

after the Application Deadline. Failure to

submit these items in the Application at the

time of the Application Deadline shall

result in rejection of the Application

without opportunity to submit additional

information. Any attempted changes to these

items will not be accepted. Those items are

as follows:

(a) Name of Applicant entity;

notwithstanding the foregoing, the name of

the Applicant entity may be changed only by

written request of an Applicant to

Corporation s taff and approval of the Board

as follows: (i) after the Applicant has been

invited to enter credit underwriting for the

SAIL and HOME Programs and for Developments

requesting non - competitive HC to be used

with non - Corporation - issued tax - exempt

bonds, and (ii) after the Carryover

Allocation Agreement is in effect for the

Competitive HC Program;

(b) Identity of each Developer, including

all co - Developers; notwithstanding the

foregoing, the identity of the Developer(s)

may be changed only by written request of an

Applicant to Corporation staff and approval

of the Board after the Applicant has been

invited to enter credit underwriting;

(c) Program(s) applied for;

(d) Applicant applying as a Non - Profit or

for - profit organization;

(e) Site for the Develop ment;

notwithstanding the foregoing, after the

Applicant has been invited to enter credit

underwriting and subject to written request

of an Applicant to Corporation staff and

approval of the Corporation, the site for

the Development may be increased or

de creased, as follows: (i) for the

Competitive HC, SAIL and HOME Programs

provided the Tie Breaker Measurement Point

is on the site and the total proximity

points awarded during scoring are not

reduced, and (ii) for Developments

requesting non - competitive HC provided the

Development Location Point is on the site;

(f) Development Category;

(g) Development Type;

(h) Demographic Commitment;

(i) Total number of units; notwithstanding

the foregoing, for the SAIL and HC Programs

the total number of units ma y be increased

after the Applicant has been invited to

enter credit underwriting, subject to

written request of an Applicant to

Corporation staff and approval of the

Corporation;

(j) With regard to the SAIL and HC

Programs, the Total Set - Aside Percentage as

stated in the last row of the total set -

aside breakdown chart for the program(s)

applied for in the Set - Aside Commitment

section of the Application. With regard to

the HOME Program, the Total Set - Aside

Percentage as stated in the Set - Aside

Commitment s ection of the Application,

unless the change results from the revision

allowed under paragraph (l) below;

(k) CHDO election for the HOME Program;

(l) Funding Request amount; notwithstanding

the foregoing, requested amounts can be

changed only as follo ws:

1. Reduced by the Applicant to reflect the

maximum request amount allowed in those

instances where an Applicant requested more

than its request limit, or

2. When the county in which the Development

is located is newly designated by HUD as a

Difficu lt Development Area (DDA) after the

Application Deadline but prior to the end of

the cure period outlined in Rule 67 - 48.004,

F.A.C.: (i) an Applicant, who has not failed

threshold for exceeding its Competitive HC

request limit, may increase its Competitive

HC request by an amount equaling 30 percent,

rounded to whole dollars, of the remainder

of the ApplicantÓs initial request amount

provided the total request amount does not

exceed the maximum Competitive HC request

amount for the applicable county, or (ii ) an

Applicant, that failed threshold during

preliminary scoring for requesting more than

its Competitive HC request limit because the

Development was not then designated as being

in a DDA, may increase its Competitive HC

request amount to the maximum allo wable

amount for the Development. If any

Development elects to recognize any newly

designated DDA status, then the Development

must meet any minimum Competitive HC

requests that are applicable.

(m) Submission of the Application online

and submission of one original hard copy

with the required number of photocopies of

the Application by the Application Deadline;

(n) Payment of the required Application fee

by the Application Deadline;

(o) The Application labeled ÐOriginal Hard

CopyÑ must include a pr operly completed

Applicant Certification and Acknowledgement

form reflecting an original signature.

All other items may be submitted as cures

pursuant to subsection (6) above.

With regard to paragraphs (a) and (b) above,

the Board shall consider the facts and

circumstances of each ApplicantÓs request

and any credit underwriting report, if

available, prior to determining whether to

grant the requested change . . . .

(Emphasis added.)

28. Florida Housing argues that the point of the Universal

Cycle Applica tion process is to "get it right," and that it did

so in this instance within the ambit of its rules and

precedents. Florida Housing argues, without contradiction, that

the zoning on the properties in the MLF Towers application was

correctly designated as DC - 1 in the application documents

directly relating to zoning designation. More controversially,

Florida Housing argues that under the circumstances presented in

this case it was entitled to overlook the apparently

contradictory zoning information set fo rth in the engineering

map submitted by MLF Towers as a "demonstrative exhibit" on an

issue other than the zoning designation of the propert ies .

29. Landings does not take issue with the fact that the

actual zoning designation of the properties was DC - 1. Rather,

Landings takes the position that Florida Housing's rules dictate

that "getting it right" is not the overriding criterion in the

review of applications, that there is ample precedent in Florida

Housing 's final orders to establish that ambiguities a nd

inconsistencies within an application and its subsequent cures

is a ground for rejection, threshold failure, or the reduction

of points, and that this case falls within the ambit of that

established precedent.

30. Landings points out that in a final or der on the 2011

Universal Cycle Application, Florida Housing has recently

concluded that its rules do not allow it to distinguish between

material and immaterial information submitted by an applicant,

nor do the rules allow Florida Housing to disregard "gr atuitous"

information once it has been submitted by an applicant. Twin

Lakes at Lakeland, LLLP v. Fla. Hous. Fin. Corp. , FHFC Case No.

2012 - 005UC (Final Order, June 8, 2012). Florida Housing

acknowledges that Twin Lakes stands for the cited proposition,

but contends that the proposition should be limited to cases

such as Twin Lakes that deal with Part V.D. of the 2011

Universal Cycle Application, which provided in pertinent part:

Unless stated otherwise in these

instructions, a firm commitment, proposal o r

letter of intent will not be considered if

any information contained in the document

(which includes any attachments thereto) is

inconsistent with information stated

elsewhere within the document or elsewhere

within the Application.

31. Florida Housing argues that this provision addresses a

specific set of documents (firm commitments, proposals, and

letters of intent) that applicants must provide as evidence of a

firm financial commitment to a project. Florida Housing further

points out that the quoted language mandating rejection for

inconsistency was new to the 2011 cycle, and that the previous

2009 version of the funding commitment language had given

Florida Housing some discretion in choosing whether to accept or

reject a financial commitment letter .

32. Florida Housing points out that the instant case does

not involve Part V.D. of the Universal Cycle Application. The

MLF Towers documents in question here relate to Part III.C.,

"Ability to Proceed," which contains no such language mandating

reject ion of the application for internal inconsistency.

33. Florida Housing states that this situation in the

instant case is covered by the more relaxed provision of rule

67 - 48.004(9) , unchanged since the 2009 cycle :

[I] nconsistencies created by the Appli cant

as a result of information provided pursuant

to subsections (6) and (7) above will still

be justification for rejection of the

Application, threshold failure, or reduction

of points, as appropriate .

34. Florida Housing argues that the quoted rule gi ves it

some measure of discretion to determine what is "appropriate"

when confronted with a facial inconsistency not involving

financial commitment. Florida Hous ing points to the fact that

the requirements of Part V.D. were made more exacting in the

2011 cycle while those of Part III.D. remained unchanged as

further indication that Florida Housing retains discretion as to

materials submitted in response to Part III.D.

35 . However, there are two points against Florida

Housing's reading of the rule. First , the awkward placement and

phrasing of the term "as appropriate" in the text of rule 67 -

48.004(9) does not unambiguously establish the agency's claimed

discretion. The rule may also be read as requiring the agency

to select the "appropriate" remedy among the three stated

options -- rejection of the Application, threshold failure, and

reduction of points -- depending on which portion of the

application has been rendered inconsistent by the cure

submission. However, the agency's reading of the rule is

reas onable and commands deference.

36. Second, and more significantly, a review of the Final

Order in Twin Lakes leads to the conclusion that the agency was

stating a broader rule than Florida Housing urg es in this

proceeding. T he agency was considering a recommended order from

an informal hearing officer. The stipulated facts were,

briefly, that the applicant sought tax credits to help finance

development of an 88 - unit apartment complex in Lakeland. The

applicant had submitted in its initial application a letter from

the Housing Authority of the City of Lakeland referencing "88

elderly tax credit units" and setting forth the terms of the

proposed loan from the Housing Authority to the applicant. In

its preliminary scoring of the application, Florida Hous ing

concluded that the loan from the Housing Authority could not be

considered because the letter had not been signed by the lender.

37 . The applicant submitted a cure in the form of a fully

executed loan commitment letter from the Housing Authority.

T his letter was identical to the previously submitted letter

except that it referenced "144 elderly tax credit units." In

its final scoring of the application, Florida Housing concluded

that the applicant failed to meet threshold requirements for

demonstra ting adequate financing because the revised commitment

letter referenced 144 units whereas the application stated the

total number of proposed units was 88.

38 . Before the informal hearing officer, the applicant

argued that because the number of units in a proposed project is

not required to be provided in a financing commitment letter

under Part V.D., the fact that the commitment letter referenced

a number different from that in the application should not be

considered "material." Florida Housing replied by pointing to

the mandatory rejection language of Part V.D. a nd the language

in rule 67 - 48.004(6) stating that where cure documentation

creates an inconsistency with another item in the application,

the applicant is required to make such other changes as

necessary to keep the application consistent as revised.

Florida Housing asserted that there was no provision in its

rules that permitted it to weigh the materiality of an

inconsistency as a means to excuse a threshold failure.

39 . The hearing officer c oncluded as follows :

The undersigned acknowledges that Florida

Housing's rules contain no definition of

"consistency" or "inconsistency," nor do

they address the materiality of an

inconsistency. However, this does not mean

that Florida Housing's scoring decisions

must not be reasonable and comport with the

overriding intent of its published rules.

Unlike many of Florida Housing's other rule

requirements, such as those pertaining to

Ability to Proceed, no form is prescribed to

demonstrate non - corporation funding

commitments. Instead, only a "firm

commitment, proposal or letter of intent"

containing six items of information is

required. While those items include

specific reference to the Applicant as the

borrower or direct recipient, they do not

require a description of the project by the

number of units proposed. Here, the

Petitioner's commitment letter's description

of the project as containing 144 units was

gratuitous, and its "inconsistency" with the

Application's description of an 88 - unit

project is immaterial to the loan

commitment.

The purpose of Petitioner's Cure

commitment letter from a third party was n ot

to alter the number of units proposed in its

Application, nor did the commitment letter

request such a change. Indeed, such a

change in th e number of units could only be

made after the Applicant had been invited to

enter credit underwriting, subject to a

written request "of an Applicant" to Florida

housing's staff and approval of the

Corporation. See Rule 67 - 48.004(14)(i),

Florida Administr ative Code.

Here, while there was an "inconsistency"

between the number of units referenced in

the commitment letter and the number of

units referenced in the Petitioner's

application, such an inconsistency does not

rise to the level of a failure to mee t

threshold requirements regarding financing.

There is nothing in the Application

Instructions requiring that the amount of

the loan commitment be based upon the number

of units set forth in the Application, nor

is there a requirement that a per - unit

comp utation be attached to the commitment

letter. The "inconsistency" relied upon by

Florida Housing to determine a failure to

meet threshold requirements was immaterial

to the requirements set forth for non -

corporation funding commitments, and its

decision w as unreasonable and unsupported by

its rules. (Citations to case record

omitted.)

40 . In its final order, Florida Housing adopted the first

two quoted paragraphs of the hearing officer's conclusions of

law. However, Florida Housing rejected the final p aragraph and

substituted the following conclusions of law:

Petitioner's Application stated that the

development would be 88 units; the

commitment letter provided on cure said th at

there would be 144 units in the development.

Although Florida Housing doe s not require an

applicant to provide this number of units as

part of its non - corporation funding

commitment, the Applicant did so in the cure

letter. Once provided, Florida Housing

cannot ignore this information. Nothing in

the Instruction or rule allow s Florida

Housing to ignore information in an

application. Nothing in the Instructions or

rules allows Florida Housing to weigh or to

determine the materiality of an

inconsistency. Instead, as demonstrated,

Florida Housing's rules state at Part V.D.

any inconsistency will be grounds for a

threshold failure. Florida Housing cannot

add or read in these new criteria and

standards of materiality and sele ctively

ignoring materials submitted in the

application scoring process without having

gone through the ru le adoption process.

Cleveland Clinic Florida Hospital v. Agency

for Health Care Administration , 679 So. 2d

1237 (1st DCA 1996).

The burden is on the Petitioner to ensure

accuracy and completeness when submitting

documents. See , e.g. , Plaza La Isabell a,

LLC v. Florida Housing Finance Corporation ,

FHFC Case No. 2006 - 022UC (Final Order

July 26, 2006). The burden is not on

Florida Housing to assist applicants by

ensuring the accuracy and completeness of

their submitted documents.

This type of evaluat ion suggested by

Petitioner would effectively have Florida

Housing staff assist an applicant in the

submittal of its application, in violation

of Florida Housing's rules. It would not be

feasible to undertake this type of scoring

and maintain the integrit y of the process.

See 67 - 48.004, Fla. Admin. Code; APD Housing

Partners 20, LP v. Florida Housing Finance

Corporation , Case No. 2009 - 067UC (Final

Order February 26, 2010).

* * *

The plain language of the Instructions

clearly requires the Applican t to provide

all the information requested, and that all

information provided must be consistent with

every other part of its application.

Rules have the force and effect of a

statute, and rules of statutory construction

apply. Florida Livestock board v. Gladden ,

76 So. 2d 291 (Fla. 1954). When the

language of the statute is clear and

unambiguous and conveys a clear and definite

meaning, there is no occasion for resorting

to rules of statutory interpretation and

construction; the statute must be given its

plain and obvious meaning. Holly v. Auld ,

450 So. 2d 217 (Fla. 1984).

The number of units found on the face of

Revised Exhibit 47, the non - corporation

funding commitment letter provided as a

cure, was inconsistent with the number of

units provided elsewhere in Petitioner's

application. Based on this inconsistency,

F lorida Housing correctly determined that

Petitioner's application failed the

threshold requirement for non - corporation

funding commitments and properly rejected

the Application.

41 . Wh ile it is true that Twin Lakes was decided under the

mandatory rejection language found in the 2011 version of Part

V.D., it is also noted that the analysis employed in the T win

Lakes final o rder did not appear to annou n ce a departure from

Florida Housing precedent when it reject ed the informal hearing

officer's recommendation that the "inconsistency" in question be

disregarded as immaterial to the requirements set forth for non -

corporation funding commitments. Indeed, the final order cited

orders predat in g the 2011 cycle as a uthority for Florida

Housing's refusal to make distinctions between "material" and

"immaterial" inconsistencies in applications and cure materials,

or to ignore certain information submitted by an applicant based

on the totality of the circumstances. 8 /

42 . The decisive aspects of APD Housing Partners 20, LP v.

Fla. Hous. Fin. Corp. , FHFC Case No. 2009 - 067UC (Final Order

Feb . 26, 2010), cited as authority in the Twin Lakes final

order, did not involve Part V.D. or financial commitment

l etters. In APD Housing , Florida Housing rejected the informal

hearing officer's conclusions of law 7 through 10, which

provided as follows: 9 /

6. At preliminary scoring, Florida Housing

determined that APD 20's application failed

threshold requirements fo r site control

because the agreement submitted does not

reflect APD 20 as the buyer and no

assignment was provided.

7. During the cure period, APD 20 provided

a First Amendment to and Assignment and

Assumption of Contract for Purchase and Sale

of Real P roperty. This document properly

documented the Assignment in the terms of

the agreement, although titles on the

signature lines of the agreement did not

reflect the parties to the agreement.

8. Despite the error in the titles of the

signature lines, Flo rida Housing did not

contend that the signatures were invalid or

were not the authorized signatories to the

agreement. In reviewing the entirety of the

stipulated and received exhibits in the APD

20 application, the individuals required to

sign the assign ment match the parties for an

appropriate Assignment and Assumption of

Contract for Purchase and Sale of Real

Property.

9. There is no question in the assignment

submitted as a cure who the seller and new

buyer are, and the plain reading of the

assignme nt confirms and explains the

relationship between the listed companies.

10. Based on the totality of the

application and cure materials, Florida

Housing can readily ascertain the correct

signatories and parties to the assignment,

and the title above the signature lines does

not change the terms or the validity and

enforceability of the First Amendment to and

Assignment and Assumption of Contract for

Purchase and Sale of Real Property.

(Internal citation omitted.)

43 . In its lengthy substitute conclusi ons of law, Florida

Housing emphasized that its review was strictly limited to the

information to be gleaned from the face of the documents

submitted by the applicant. The error in the titles on the

signature lines was not subject to interpretation:

S - 10 . Petitioner argues that there is no

confusion that the proper parties signed the

Assignment and Assumption Agreement and that

the "error" in the signature lines does not

change that fact; an argument apparently

recognized in the Recommended Order's

summa ry conclusion in paragraph 10 that,

"Based on the totality of the application

and the cure materials, Florida Housing can

readily ascertain the correct signatories

and parties to the assignment, and the title

above the signature lines does not change

the t erms or the validity and

enforceability" of the Assignment and

Assumption Agreement. This conclusion

ignores both the applicable requirements for

demonstrating site control in the name of

the applicant a [sic] by Florida Housing's

rules as well as the fra mework within which

the Universal Applications Process

functions. Here, the entities named on the

signature lines go to the very issue of

whether or not the Petitioner demonstrated

site control in the name of APD 20 as

required by Florida Housing's rules.

Florida Housing is not permitted to

disregard its rules and score Petitioner's

Application based on inference and

speculation. Moreover, the notion that

Florida Housing is required to determine

Petitioner's compliance with the site

control requirements based on the "totality

of the application" is contrary to Florida

Housing's requirement in Part III.C.2.a. of

the Application Instructions that all

documentation evidencing site control be

provided in one specific place in the

application. Part III.C.2.a. of the

Application Instructions provides in

relevant part :

Evidence of Site Control (Threshold)

. . . The required documentation ,

including any attachments or

exhibits referenced in any

document, must be attached to that

document regardless of whether

t hat attachment or exhibit has

been provided as an attachment or

exhibit to another document or

whether the information is

provided elsewhere in the

Application or has been previously

provided. Such documentation...

must be provided behind a tab

labeled "E xhibit 27." . . .

(Emphasis added) 10 /

S - 11. Here, it is true that Florida Housing

undoubtedly knew the names of the parties

that should have appeared on the signature

lines of the Assignment and Assumption

Agreement in order to meet the applicable

rule requirements. (Emphasis added) That,

however, does not excuse the Petitioner's

failure to comply with those rules. Under

Florida Housing's rules, the Petitioner is

responsible for the accurate completion of

"each page of [its] Application" and Florida

H ousing is not permitted to assist in that

process. The Universal Application Cycle is

a competitive application process in which

the application are scored objectively based

not upon what an applicant may have intended

to provide (or should have provided) in its

application in order to satisfy the

applicable rule requirements but, rather,

upon the information actually provided in

its application, including the exhibits and

cure materials. [ Internal citations and

f ootnotes omitted . ]

44 . The undersigned is at a loss to reconcile the approach

urged by Florida Housing in this case with its own precedents.

Mr. Auger testified that there is an "inconsistency" only where

there is a dispute as to the factual basis of a statement in an

application, and he empha sized that Florida Housing's rules "are

about figuring out what's right." In its proposed recommended

order in the instant case, Florida Housing notes that the

apparent inconsistency regarding the zoning classification of

the subject properties was no inc onsistency at all because the

CBD - 2 zoning in fact no longer existed. The properties could

not have been zoned CBD - 2. However, this state of affairs was

not apparent on the face of the documents submitted by MLF

Towers and was discovered only after Landi ngs submitted its NOAD

and further questions were asked of Mr. Lazzara. MLF Towers was

essentially given a second opportunity to effect a cure of its

application. This opportunity was not given to the applicants

in Twin Lakes and APD 20 , who also presuma bly could have

assisted Florida Housing in "figuring out what's right" in their

applications and ultimately gained their acceptance.

45 . In the instant case, Florida Housing also emphasizes

that the documents directly relating to zoning in the MLF Tower s

application all correctly state that the zoning is DC - 1 and that

the inconsistent CBD - 2 zoning statement was contained in an

engineering map submitted in response to an issue other than

zoning. Therefore, Florida Housing was entitled to disregard

the in consistent statement and to rely solely on the statements

found in the zoning materials. This seems a reasonable way of

dealing with an inconsistency but, again, it is contrary to

Florida Housing precedents regarding the portion rule 67 -

48.004(6) that pro vides : " Where revised or additional

information submitted by the Applicant creates an inconsistency

with another item in that Application, the Applicant shall also

be required in its submittal to make such other changes as

necessary to keep the Applicatio n consistent as revised."

Florida Housing has consistently interpretetd this language as

requiring consistency throughout an application and has declined

the invitation to ignore "gratuitous" information within an

application. 11 /

46 . An agency's interpre tation of a statute it is charged

with enforcing and of administrative rules promulgated thereto

is entitled to great deference. Level 3 Communications, LLC v.

Jacobs , 841 So. 2d 447, 450 (Fla. 2003) . A n agency ' s

interpretation of its own rules will be u pheld unless it is

clearly erroneous, or amounts to an unreasonable interpretation.

Legal Env tl. Assistance Found . , Inc. v. Bd . of Cnty . Comm Ó r of

Brevard Cnty . , 642 So. 2d 1081, 1083 - 84 (Fla. 1994); Fugate v.

Fla. Elec . Comm'n , 924 So. 2d 74, 76 (Fla. 1s t DCA 2006); Miles

v. Fl a. A & M Univ . 813 So. 2d 242 (Fla. 1st DCA 2002); Dravo

Basic Materials Co . , Inc. v. Dep ' t of Transp . , 602 So. 2d 632

(Fla. 2d DCA 1992).

47 . The text of rule 67 - 48.004(9) states that

inconsistencies created by an applicant's cu re submissions "will

still be justification for rejection of the Application ,

threshold failure, or reduction of points, as appropriate ."

Florida Housing argues that "as appropriate" gives it sufficient

discretion to disregard the engineering map submitte d by MLF

Towers. This may be not be the only reasonable reading of the

rule, see Conclusion of Law 35, supra , but it is not clearly

erroneous or unreasonable.

48. Florida Housing's position in this case is not

unreasonable when considered in isolation, but is so at odds

with its historic practice as to be arbitrary. No rationale was

proffered as to why the inconsistency in the instant case was so

trivial as to be disregarded, but similar or even more trivial

inconsistencies in other cases were cause fo r rejection. No

rationale was proffered as to why MLF Towers was given a post -

NOAD opportunity to cure the inconsistency caused by its cure

materials, when other applicants were not.

49. Mr. Auger testified that Florida Housing would decline

to interp ret its rules "in a way that doesn't help us get to the

right conclusion, the factually accurate conclusion." While it

is undoubtedly true that the agency prefers to reach a factually

accurate conclusion, its precedents indicate that Florida

Housing has p laced a high priority on establishing a bright line

for applicants: the applicant is responsible for the accurate

completion of each page and applicable exhibit; Florida Housing

does not assist the applicant nor does it engage in speculation

as to the appl icant's intent; inconsistencies or ambiguities on

the face of applications and cure materials cause rejection,

threshold failure, or reduction of points.

50 . The reasons for this priority are clear and salutary.

Florida Housing receives hundreds of app lications during each

application cycle, and could not begin to give each application

the attention that would be required by a subjective evaluation

to "weigh or to determine the materiality of an inconsistency."

Strict objective review of the four corne rs of an application

may lead to results that appear harsh in individual cases, but

has the virtue of treating all applicants equally and enabl ing

Florid a Housing to process the volume of applications before it

in a timely fashion .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Florida Housing Finance Corporation

enter a final order finding that it erred in its scoring of

Universal Cycle Application No. 2011 - 106C and that Petitioner

Landings at Cr oss Bayou, LLLP , is entitled to an award of Low

Income Housing Tax Credit funds from the next available

allocation.

DONE AND ENT ERED this 22nd day of January, 2013 , in

Tallahassee, Leon County, Florida.

S

LAWRENCE P. STEV ENSON

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

Divi sion of Administrative Hearings

this 22nd day of January, 2013 .

ENDNOTES

1 / Section 420.5099(1) references § 42 (h)(7)(A). However, since

the Florida statute was last revised in 2002, the federal

statutory reference h as been renumbered to § 42 (h)(8)(A).

2 / Certain items in the application are designated "threshold"

items, the failure to satisfy which will result in the rejection

of the application.

3 / Florida Housing's ranking methodology includes a "Set Aside

Uni t Limitation" or "SAUL" that establishes a limit on the

number of units funded in each county, in order to avoid an

overconcentration of affordable housing units in any one county.

Under the SAUL formula for the 2011 application cycle, there

were not suff icient tax credits available to make an award to

both Landings and MLF Towers.

4 / "Zoning Official" is Mr. Lazzara's job title, not merely a

description of his duties. T h e Zonin g O f f i c i a l i s t h e p er s o n

r e spo n sible f o r c e rt i f y in g t h e z onin g of property o n b e h a l f o f

t h e C i t y o f S t . P e t e r sbu r g . Mr. Lazzara has held the position

for five years. For the previous three years, Mr. Lazzara's

position with the City of St. Petersburg was "Deputy Zoning

Official."

5 / Neither party explained the term "CBD." The undersigned

notes that it is not uncommon for local zoning ordinances to

employ that term as an acronym for "Central Business District."

6 / Landings' challenge in this proceeding is limited to the

issue of the zoning designations.

7 / Part III.C.4. o f the Application Package provides as follows,

in relevant part:

Evidence of Appropriate Zoning (Threshold)

To achieve threshold the Applicant must

provide the applicable Local Government

verification form, properly completed and

executed, behind a tab l abeled "Exhibit 32 . "

The verification form must demonstrate that

as of the date that signifies the

Application Deadline for the 2011 Universal

Cycle the proposed Development site is

appropriately zoned and consistent with

local land use regulations regard ing density

and intended use or that the proposed

Development site is legally non - conforming.

If the proposed Development consists of

Scattered Sites, evidence of appropriate

zoning must be demonstrated for all of the

Scattered Sites. . . .

8 / As regard s the stringency of Florida Housing's scoring

process, i t is noted that in 2004, Administrative Law Judge

T. Kent Wetherell, II described that process as follows:

FHFCÓ s fina l order s hav e adopte d a stringen t

standard for evaluating compliance with the

app lication submittal requirement s i n case s

whe r e th e applican t Ðappeals Ñ th e scoring of

its own application. The standard requires

strict and literal compliance with the

submittal requirements, no matter how

technical or immaterial the requirements may

see m to be. Se e , e.g . , [ Ybor, II I, Ltd. v.

Fla. Hous. Fin. Auth. , FHFC Case No. 2001 -

n ing

point deductions based upon the applicantÓs

failure to include the word ÐacresÑ when

describing the size of the property even

tho ugh it was clear from the application

that the unit of measure was acres);

[ Bayside at Town Cente r, Ltd. v. Fla.

Hous. Fin. Corp. , FHFC Case No. 2001 - 065

applica tio n becaus e the nam e o f th e develope r

containe d ÐCorp . Ñ i n som e place s and ÐInc.Ñ

in others).

Ybor III, Ltd. v. Fla. Hous. Fin. Corp. , DOAH Case No. 03 - 1956

(Fla. DOAH Mar. 30, 2004) at ¶ 85.

9 / Conclusion of law 6, which was adopted by Florida Housing's

final order, is included for explanatory purposes .

10 / The quoted language from Part III.C.2.a. of the 2009

Application Instructions is identical to that in Part III.C.2.a.

of the 2011 Application Instructions.

11 / The Final Order in Twin Lakes stated as follows , at page 4 :

Petitioner's assertion tha t the materiality

of the inconsistency be taken into account

when scoring is without merit. This type of

scrutiny would create a new standard in the

rule. It would require staff to determine

which inconsistencies are material, and

which are not. Without adequate rules to

govern this type of evaluation, staff would

be forced to speculate and make subjective

and possibly arbitrary decisions.

COPIES FURNISHED :

Michael P. Donaldson, Esquire

Carlton Fields, P.A.

215 South Monroe Street, Suite 500

Post Offi ce Drawer 190

Tallahassee, Florida 32302 - 0190

Wellington H. Meffert, Esquire

Florida Housing Finance Corporation

Suite 5000

227 North Bronough Street

Tallahassee, Florida 32301

Della Harrell, Corporation Clerk

Florida Housing Finance Corporation

Suite 5000

227 North Bronough Street

Tallahassee, Florida 32301 - 1329

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Orde r should be filed with the agency that

will issue the Final Order in this case.