17-001543BID
Joe Moretti Phase Three, Llc vs.
Florida Housing Finance Corporation
Status: Closed
Recommended Order on Friday, June 9, 2017.
Recommended Order on Friday, June 9, 2017.
1FINAL ORDER
3This cause came before the Board of Directors of the Florida Housing Finance
16Corporation ("Board") for consideration and final agency action on July 28, 2017.
30Joe Moretti Phase III, LLC ("Moretti"), Stirrup Plaza Phase III, LLC ("Stirrup")
46("Petitioners"), GM Silver Creek, LTD ("Silver Creek") and Verbena, LLC
60("Verbena") ("Intervenors") were Applicants under Request for Applications 2016-
73114: Housing Credit Financing for Affordable Housing Developments Located in
83Miami-Dade County (the "RF A"). The matter for consideration before this Board
96is a Recommended Order issued pursuant to §§120.57(2) and (3)(e), Fla . Stat.
109(2016), and Fla. Admin. Code R. 67-60.009(3)(b), and the Exceptions to the
121Recommended Order, and Responses thereto.
126On October 28, 2016, Florida Housing issued the RF A, which solicited
138applications to compete for an allocation of low income housing credit funding.
150Responses to the RFA were due on December 15, 2016. On December 15, 2016,
164Applications were submitted in response to the RF A by several Developers
176including Petitioners and Intervenors. On February 3, 2017, Florida Housing posted
187notice of its intended decision to award funding to three Applicants. Through the
200ranking and selection process outlined in the RF A, Intervenors Verbena and Silver
213Creek were deemed eligible for funding and Verbena was recommended for funding,
225as well as third-party Applicants Ambar Key, LLC, and Northside Property IV, Ltd.
238Through a separate case regarding this RF A, which was settled with a consent
252agreement presented to and approved by the Board, third-party Applicant Ambar
263Key agreed it was ineligible for funding. Petitioners Moretti and Stirrup were
275determined to be ineligible for funding due to their proposed developments being
287subject to existing Extended Low-Income Housing Agreements ("EUAs").
297Petitioners timely filed their notices of intent to protest followed by formal written
310protests. Motions to Intervene were filed by Verbena as well as Silver Creek; those
324motions were subsequently granted.
328Page 7 of the RF A, Section 3 .A states: "Applicants should review subsection
34267-48.023(1), F.A.C., to determine eligibility to apply for the Housing Credits
353offered in this RFA." Additionally, in Section 3.F.3, the RFA requires that
365Applicants funded under RF A 2016-114 must comply with Florida Administrative
376Code, Chapters 67-60 (Application requirements), 67-48 (credit underwriting and
385program requirements for Housing Credits), and 67-53 (Compliance requirements).
394In relevant part, Rule 67-48.023(1) of the Florida Administrative Code states:
405Unless otherwise permitted in a competitive solicitation
412process, an Applicant is not eligible to apply for
421Competitive Housing Credits if any of the following
429pertain to the proposed Development:
434(c) The proposed Development site or any part thereof is
444subject to any Land Use Restriction Agreement or
452Extended Use Agreement, or both, in conjunction with any
461Corporation affordable housing financing intended to
467foster the development or maintenance of affordable
474housing ...
476The RF A also required that Applicants demonstrate that "as of the Application
489Deadline sewer capacity, package treatment or septic tank service is available to the
502entire proposed Development site ... " The RF A instructed Applicants to provide, as
515Attachment 11, either the Verification of Availability of Infrastructure - Sewer
526Capacity, Package Treatment, or Septic Tank form (Form Rev. 08-16) or a "letter
539from the waste treatment service provider that is Development-specific and dated
550within 12 months of the Application Deadline."
557Petitioners timely filed notices of intent to protest and formal written protests
569challenging the Board's finding that they were ineligible for funding. Specifically,
580they alleged that they timely submitted a request to amend the EUAs on their
594proposed development sites to remove the proposed development sites from the
605EUAs prior to the Application deadline. In response to the protests, Verbena filed a
619Motion to Intervene, alleging that it could be displaced from funding if Moretti's
632challenge was successful, and further alleging that Moretti's Application was
642ineligible for funding not only due to the existence of an EUA on the proposed
657development site, but also because the Application contained a sewer letter that did
670not comply with the terms of the RF A. Moretti filed a Motion in Limine to preclude
687Verbena from bringing up any challenge to its sewer letter.
697The matters were referred to the Division of Administrative Hearings
707(DOAH) and consolidated. A formal hearing took place on April 12, 2017, in
720Tallahassee, Florida before the Honorable Administrative Law Judge Garnett W.
730Chisenhall ("Hearing Officer"). The parties filed timely Proposed Recommended
741Orders.
742After consideration of the evidence and arguments presented at hearing , and
753the Proposed Recommended Orders, the Hearing Officer issued a Recommended
763Order on June 9, 2017. A true and correct copy of the Recommended Order is
778attached hereto as "Exhibit A." The Hearing Officer determined Florida Housing's
789actions or inactions pertaining to the Moretti and Stirrup EUA amendment requests
801were not arbitrary, capricious, or contr ary to competition, resulting in Moretti and
814Stirrup remaining ineligible for funding under RF A 2016-114. The Recommended
825Order recommended that Florida Housing:
830[I]ssue a final order awarding funding to Ambar Key,
839Ltd.; Verbena, LLC; and Northside Property IV, Ltd.
847The Parties filed various Exceptions to the Recommended Order and
857Responses to Exceptions, which are addressed as follows:
865RULING ON INTERVENOR SILVER CREEK AND FLORIDA
872HOUSING'S JOINT EXCEPTION TO RECOMMENDATION
8771. Silver Creek and Florida Housing filed a Joint Exception to the
889recommendation set forth in the Recommended Order to the extent the
900Recommended Order recommended Florida Housing award funding to third-party
909Applicant Am bar Key.
9132. The basis for the exception is the consent agreement between Silver
925Creek and Ambar Key, wherein Ambar Key conceded its application was ineligible
937for funding.
9393. Florida Housing and Silver Creek request a Final Order be entered
951which: a) dismisses the formal written protests filed by Moretti and Stirrup; and b)
965distributes funding under RF A 2016-114 through the ranking and selection process
977conducted pursuant to the RF A and the outcome of pending litigation under the same
992RFA.
9934. No parties filed a response to the Joint Exception.
10035. After a review of the record, the Board finds that the Exception to and
1018requested modification to the Recommendation set forth in the Recommended Order
1029are reasonable and accepts the Joint Exception.
1036RULING ON PETITIONERS' EXCEPTIONS
1040Petitioners' Exceptions to Findings of Fact
10466. Petitioner takes exception to the Findings of Fact set forth Paragraphs
105885, 86, 87, and 88 of the Recommended Order.
10677. After a review of the record, the Board finds that the Findings of Fact
1082set forth in Paragraphs 85, 86, 87, and 88 of the Recommended Order are supported
1097by competent, substantial evidence, and the Board rejects Petitioners' Exceptions to
1108the Findings of Fact set forth in Paragraphs 85, 96, 87, 88 of the Recommended
1123Order.
1124Petitioners' Exceptions to Conclusions of Law
11308. Petitioner takes exception to the Conclusions of Law set forth m
1142Paragraphs 108, 109, 110, 112, 120, 121 Recommended Order.
11519. The Board finds that it has substantive jurisdiction over the issues
1163presented in Paragraphs 108, 109, 110, 112, 120, 121 ofthe Recommended Order.
117510. After a review of the record, the Board finds that the Conclusions of
1189LawsetforthinParagraphs 108,109,110,112,120,121 oftheRecommendedOrder
1197are reasonable and supported by competent, substantial evidence, and rejects
1207Petitioner's Exceptions to the Conclusions of Law presented in Paragraphs 108, 109,
1219110, 112, 120, 121 ofthe Recommended Order.
1226RULING ON INTERVENOR VERBENA'S EXCEPTIONS
1231Verbena's Exception to Conclusion of Law Footnote 8 of Paragraph 121
124211. Verbena seeks an Exception to Footnote 8 to Conclusion of Law
1254Paragraph 121, where the Hearing Officer ALJ denied Moretti's Motion in Limine
1266as being moot because the ALJ determined that Florida Housing did not act in an
1281arbitrary or capricious manner. Verbena's exception seeks clarification in the Final
1292Order that the merits of its argument against Moretti's sewer letter have not been
1306addressed or resolved.
130912. The Board finds that it does not have substantive jurisdiction over the
1322issue presented in Footnote 8 to Paragraph 121 of the Recommended Order, because
1335the ruling is a procedural determination by the Hearing Officer. Accordingly, The
1347Board rejects Petitioners' Exception to Footnote 8 to Conclusion of Law Paragraph
1359121.
1360Verbena's Exception to Conclusion of Law Paragraph 121
136813. Verbena's Exception to Conclusion of Law Paragraph 121 seeks a
1379modification to the Final Order, clarifying that Florida Housing's determination that
1390the Petitioners' Applications were ineligible for funding because the existing EUA
1401covering the development sites for each Application was consistent with the
1412requirements of Rule 67-48.023(1), F.A.C., consistent with the terms ofthe RFA,
1423and that Florida Housing's actions were not contrary to its governing statutes,
1435agency rules or policies, or the terms of the RF A.
144614. The Board finds that Verbena's Exception to Conclusion of Law
1457Paragraph 121 with requested modification is reasonable, and supported by
1467competent substantial evidence because the Hearing Officer found that Florida
1477Housing's actions or inactions pertaining to the Moretti and Stirrup EUA
1488amendment requests were not arbitrary, capricious, or contrary to competition, and
1499that the Petitioners' development sites were subject to existing EUAs which
1510rendered then ineligible for funding pursuant to Rule 67-48.023(1), F.A.C.
1520Accordingly, the Board accepts Verbena's Exception with requested modification to
1530Conclusion of Law Paragraph 121.
1535RULING ON THE RECOMMENDED ORDER
154015. The Findings ofFact set out in the Recommended Order are supported
1552by competent substantial evidence.
155616. The Conclusions of Law of the Recommended Order are reasonable
1567and supported by competent, substantial evidence with the exception of Paragraph
1578121 of the Conclusions of Law, which should be modified to reflect that Florida
1592Housing's determination was consistent with the requirements ofRule 67-48.023(1),
1601F.A.C., consistent with the terms of the RFA, and that Florida Housing's actions
1614were not contrary to its governing statutes, agency rules or policies, or the terms of
1629theRFA.
16301 7. The Recommendation of the Recommended Order should be modified
1641to:
1642a. dismiss the formal written protests filed by Joe Moretti Phase Three,
1654LLC and Stirrup Plaza Phase Three, LLC, and
1662b. distribute funding under RF A 2016-114 through the ranking and
1673selection process conducted pursuant to the RF A and the outcome
1684of pending litigation under the same RF A.
1692ORDER
1693In accordance with the foregoing, it is hereby ORDERED:
170218. The Findings ofF act of the Recommended Order are adopted as Florida
1715Housing's Findings of Fact and incorporated by reference as though fully set forth
1728in this Order.
173119. The Conclusions of Law in the Recommended Order are adopted with
1743the exception of Conclusion of Law Paragraph 121, which is modified to state:
1756121. Therefore, Florida Housing's actions or inactions
1763pertaining to the Moretti Phase Three and Stirrup Plaza
1772Phase Three requests were not arbitrary, capricious, or
1780contrary to competition. 1 Florida Housing's determination
1787that the Petitioners' Applications were ineligible for
1794funding was consistent with the requirements of Rule 67-
180348.023(1), F.A.C., and consistent with the terms of the
1812RF A. Florida Housing's actions were not contrary to its
1822governing statutes, agency rules or policies, or the terms
1831ofthe RFA.
1833IT IS HEREBY ORDERED that the relief requested in the Petitions is
1845DENIED, the Petitions are DISMISSED, and Florida Housing's scoring and
1855ranking of RF A 2016-114 is AFFIRMED, and funding under RF A 2017-114 shall
1869me distributed through the ranking and selection process conducted pursuant to the
1881RFA.
18821 In light of this ruling, there is no need to address Moretti Phase Three's Motion in Limine. Accordingly, it is
1903denied as being moot.
1907DONE and ORDERED this 28th day of July 2017.
1916FLORIDA HOUSING FINANCE
1919CORPORATION
1920q ftrr
1922Copies to:
1924Michael Donaldson
1926Florida Bar No. 0802761
1930Carlton Fields, P.A.
1933P.O. Drawer 190
1936Tallahassee, Florida 32302
1939Telephone: (850) 224-1585
1942Facsimile: (850) 222-0398
1945mdonaldson@carltonfields.com
1946J. Stephen Menton, Esq.,
1950Tana D. Storey, Esq.,
1954Rutledge Ecenia, P .A.
1958119 South Monroe Street, Suite 202,
1964Tallahassee, Florida 32301,
1967smenton@rutledge-ecenia.com,
1968tana@rutledge-ecenia.com
1969Derek Bruce, Esq.,
1972Sarah K. Vespa, Esq.,
1976Gunster, Y oakley & Stewart, P .A.,
1983200 South Orange Avenue, Suite 1400,
1989Orlando, Florida 3 280 1,
1994dbruce@gunster .com,
1996svespa@gunster.com
1997Hugh R. Brown, General Counsel
2002Florida Housing Finance Corporation
2006227 North Bronaugh Street, Suite 5000
2012Tallahassee, Florida 32301
2015KenReecy
2016Director of Multifamily Programs
2020Florida Housing Finance Corporation
2024227 North Bronaugh Street, Suite 5000
2030Tallahassee, Florida 32301
2033Trey Price
2035Interim Executive Director
2038Florida Housing Finance Corporation
2042227 North Bronaugh Street, Suite 5000
2048Tallahassee, Florida 32301
2051NOTICE OF RIGHT TO JUDICIAL REVIEW
2057A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS
2068ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68,
2076FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY
2083THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH
2090PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A
2099NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE FLORIDA
2109HOUSING FINANCE CORPORATION, 227 NORTH BRONOUGH
2115STREET, SUITE 5000, TALLAHASSEE, FLORIDA 32301-1329, AND A
2123SECOND COPY, ACCOMPANIED BY THE FILING FEES PRESCRIBED
2131BYLAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT,
21402000 DRAYTON DRIVE, TALLAHASSEE, FLORIDA 32399-1850, OR IN
2148THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT
2157WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE
2167FILED WITHIN THIRTY (30) DAYS OF RENDITION OF THE ORDER TO
2178BE REVIEWED.

- Date
- Proceedings
-
PDF:
- Date: 06/19/2017
- Proceedings: Respondent, Florida Housing Finance Corporation, and Intervenor, GM Silver Creek, LTD's Joint Exceptions to Recommended Order filed.
-
PDF:
- Date: 06/09/2017
- Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
-
PDF:
- Date: 05/10/2017
- Proceedings: Intervenor, GM Silver Creek, Ltd.'s Proposed Recommended Order filed.
-
PDF:
- Date: 05/10/2017
- Proceedings: Intervenor, GM Silver Creek, Ltd's Notice of Filing Proposed Recommended Order filed.
-
PDF:
- Date: 05/09/2017
- Proceedings: (Joe Moretti Phase Three, LLC and Stirrup Plaza Phase Three, LLC Proposed) Recommended Order filed.
-
PDF:
- Date: 05/04/2017
- Proceedings: Unopposed Motion for Extension of Time to File Proposed Recommended Orders filed.
-
PDF:
- Date: 04/20/2017
- Proceedings: Order Granting "Joint Motion to Sever and Relinquish Jurisdiction of Case Number 17-1545BID." (DOAH Case No. 17-1545BID is Closed.)
- Date: 04/12/2017
- Proceedings: CASE STATUS: Hearing Held.
-
PDF:
- Date: 04/11/2017
- Proceedings: Notice of Appearance (James Boyd; filed in Case No. 17-001545BID).
-
PDF:
- Date: 04/11/2017
- Proceedings: GM Silver Creek, Ltd., Ambar Key, Ltd., and Florida Housing Finance Corporation's Joint Motion to Sever and Relinquish Jurisdiction of Case Number 17-1545BID filed.
-
PDF:
- Date: 04/11/2017
- Proceedings: Order Granting "Unopposed Motion to Extend Time for Filing Joint Pre-hearing Stipulation".
-
PDF:
- Date: 04/10/2017
- Proceedings: Unopposed Motion to Extend Time for Filing Joint Pre-hearing Stipulation filed.
-
PDF:
- Date: 04/10/2017
- Proceedings: Notice of Service of Verbena, LLC's Unverified Answers to Joe Moretti Phase Three, LLC's 1st Interrogatories to Verbena, LLC filed.
-
PDF:
- Date: 04/10/2017
- Proceedings: Petitioner GM Silver Creek, LTD.'s Notice of Filing Affidavit of Gerald E. Bryan filed.
-
PDF:
- Date: 04/07/2017
- Proceedings: Intervenor Ambar Key, LTD.'s Notice of Re-scheduled Telephonic Deposition of Rey Villar (amended as to date and time) filed.
-
PDF:
- Date: 04/05/2017
- Proceedings: Intervenor Ambar Key, Ltd.'s Notice of Taking Telephonic Deposition of Rey Villar filed.
-
PDF:
- Date: 04/05/2017
- Proceedings: Verbena, LLC's Response to Joe Moretti Phase Three, LLC's Motion in Limine (filed in Case No. 17-001545BID).
-
PDF:
- Date: 04/05/2017
- Proceedings: Notice of Appearance (J. Menton; filed in Case No. 17-001545BID).
-
PDF:
- Date: 04/04/2017
- Proceedings: Joe Moretti Phase Three, LLC's Notice of Service of First Interrogatories to Verbena, LLC filed.
-
PDF:
- Date: 04/03/2017
- Proceedings: Petitioner GM Silver Creek's Response to Ambar Key's Request for Admission filed.
-
PDF:
- Date: 04/03/2017
- Proceedings: GM Silver Creek, LTD.'s Notice of Service of Answers and Objections to Intervenor, Ambar Key, LTD.'s First Set of Interrogatories and First Request to Produce filed.
-
PDF:
- Date: 04/03/2017
- Proceedings: Intervenor Ambar Key, LTD.'s Response to Petitioner GM Silver Creek, LTD.'s Request for Admissions filed.
-
PDF:
- Date: 04/03/2017
- Proceedings: Intervenor Ambar Key, LTD.'s Notice of Service of Answers and Objections to Petitioner GM Silver Creek, LTD.'s First Set of Interrogatories and First Request for Production filed.
-
PDF:
- Date: 03/30/2017
- Proceedings: Amended Notice of Taking Deposition (Amended as to Date, Time, and Location) filed.
-
PDF:
- Date: 03/29/2017
- Proceedings: Intervenor Ambar Key, LTD.'s First Requests for Admission to Petition GM Silver Creek, LTD filed.
-
PDF:
- Date: 03/29/2017
- Proceedings: Intervenor Ambar Key, Ltd.'s Notice of Service of First Set of Interrogatories and First Request to Produce to Petitioner GM Silver Creek, Ltd filed.
-
PDF:
- Date: 03/28/2017
- Proceedings: Petitioner, GM Silver Creek's Request for Admissions to Intervenor, Ambar Key, Ltd., filed.
-
PDF:
- Date: 03/28/2017
- Proceedings: Petitioner, GM Silver Creek's First Request for Production Intervenor, Ambar Key, Ltd., filed.
-
PDF:
- Date: 03/28/2017
- Proceedings: Notice of Serving Petitioner, GM Silver Creek's First Set of Interrogatories to Intervenor, Ambar Key, Ltd., filed.
-
PDF:
- Date: 03/27/2017
- Proceedings: Petitioners' Joe Moretti Phase Three, LLC and Stirrup Plaza Phase Three, LLC's Notice of Taking Depositions Duces Tecum filed.
-
PDF:
- Date: 03/23/2017
- Proceedings: Order Regarding GM Silver Creek's "Motion For Leave To Intervene".
-
PDF:
- Date: 03/23/2017
- Proceedings: Order Granting Ambar Key, LTD.'s Unopposed " Petition for Leave to Intervene".
-
PDF:
- Date: 03/21/2017
- Proceedings: Joe Moretti Phase Three, LLC's Response to Verbena, LLC's Motion to Intervene filed.
-
PDF:
- Date: 03/20/2017
- Proceedings: Ambar Key, Ltd's Unopposed Petition for Leave to Intervene filed.
-
PDF:
- Date: 03/17/2017
- Proceedings: Notice of Appearance (Derek Bruce; filed in Case No. 17-001545BID).
-
PDF:
- Date: 03/17/2017
- Proceedings: Notice of Appearance (Derek Bruce; filed in Case No. 17-001544BID).
-
PDF:
- Date: 03/17/2017
- Proceedings: Notice of Hearing (hearing set for April 12, 2017; 9:00 a.m.; Tallahassee, FL).
-
PDF:
- Date: 03/17/2017
- Proceedings: Notice of Appearance of Co-Counsel (Betty Zachem; filed in Case No. 17-001545BID).
-
PDF:
- Date: 03/17/2017
- Proceedings: Notice of Appearance of Co-Counsel (filed in Case No. 17-001544BID).
-
PDF:
- Date: 03/16/2017
- Proceedings: Order of Consolidation (DOAH Case Nos. 17-1543BID, 17-1544BID and 17-1545BID).
Case Information
- Judge:
- G. W. CHISENHALL
- Date Filed:
- 03/14/2017
- Date Assignment:
- 03/14/2017
- Last Docket Entry:
- 11/27/2017
- Location:
- Tangerine, Florida
- District:
- Middle
- Agency:
- ADOPTED IN PART OR MODIFIED
- Suffix:
- BID
Counsels
-
James A. Boyd, Esquire
Boyd Law Office, P.A.
Post Office Box 69
Panama City, FL 32402
(850) 872-8514 -
Hugh R. Brown, General Counsel
Florida Housing Finance Corporation
Suite 5000
227 North Bronough Street
Tallahassee, FL 32301
(850) 488-4197 -
Derek E. Bruce, Esquire
Gunster, Yoakley & Stewart, P.A.
Suite 1400
200 South Orange Avenue
Orlando, FL 32801
(407) 648-5077 -
M. Christopher Bryant, Esquire
Oertel, Fernandez, Bryant & Atkinson, P.A.
Post Office Box 1110
Tallahassee, FL 323021110
(850) 521-0700 -
Marisa G Button, Esquire
Florida Housing Finance Corporation
Suite 5000
227 North Bronough Street
Tallahassee, FL 32301
(850) 488-4197 -
Michael P. Donaldson, Esquire
Carlton Fields Jorden Burt, P.A.
Suite 500
215 South Monroe Street
Tallahassee, FL 32302
(850) 224-1585 -
J. Stephen Menton, Esquire
Rutledge Ecenia, P.A.
119 South Monroe Street, Suite 202
Post Office Box 551 (32302)
Tallahassee, FL 32301
(850) 681-6788 -
Tana D Storey, Esquire
Rutledge Ecenia, P.A.
Suite 202
119 South Monroe Street
Tallahassee, FL 32301
(850) 681-6788 -
Sarah Kathleen Vespa, Attorney
Gunster, Yoakley & Stewart, P.A.
401 East Jackson Street
Tampa, FL 33602
(813) 396-6948 -
Betty Zachem, Assistant General Counsel
Florida Housing Finance Corporation
Suite 5000
227 North Bronough Street
Tallahassee, FL 32301
(850) 488-4197 -
James A. Boyd, Esquire
Address of Record -
Hugh R Brown, General Counsel
Address of Record -
Derek E. Bruce, Esquire
Address of Record -
M. Christopher Bryant, Esquire
Address of Record -
Marisa G. Button, Esquire
Address of Record -
Michael P. Donaldson, Esquire
Address of Record -
J. Stephen Menton, Esquire
Address of Record -
Tana D. Storey, Esquire
Address of Record -
Sarah Kathleen Vespa, Attorney
Address of Record -
Betty Zachem, Esquire
Address of Record -
Sarah Kathleen Vespa, Esquire
Address of Record