01-003503 Boynton Associates, Ltd. vs. Florida Housing Finance Corporation Status: Closed Recommended Order on Wednesday, April 17, 2002.

Summary: Variance granted by City waived parking space requirements for applicant. This waiver resulted in tangible economic benefit to applicant, which should result in additional points being awarded for local government contribution.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BOYNTON ASSOCIATES, LTD., )

)

Petitioner, )

)

vs. ) Case No. 01 - 3503

)

FLORIDA HOUSING FINANCE )

CORPORATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this

case on November 19, 2001, in Tallahassee, Florida, by

Carolyn S. Holifield, a duly - designated Administrative Law Judge

of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Jo n C. Moyle, Jr., Esquire

Moyle, Flanigan, Katz, Kollins,

Raymond & Sheehan, P.A.

118 North Gadsden Street

Tallahassee, Florida 32301

For Respondent: Elizabeth G. Arthur, Esquire

Florida Housing Finance Corporation

227 North Bronough Stree t, Suite 5000

Tallahassee, Florida 32301 - 1329

STATEMENT OF THE ISSUES

The issue is whether Petitioner, Boynton Associates, Ltd.,

is entitled to receive additional points for Form 5 of its

application, related to local government contributions, for the

Florida Housing Finance Corporation's 2001 Combined Rental Cycle

and, if so, whether Petitioner qualifies for an allocation of

federal low - income housing tax credits.

PRELIMINARY STATEMENT

On or about February 26, 2001, Petitioner, Boynton

Associates , Ltd. (Boynton), submitted an application to the

Florida Housing Finance Corporation for the allocation of low -

income housing credits. After a complete review and evaluation

of the application by the Florida Housing Finance Corporation,

Boynton's applica tion did not receive the maximum number of

points in several categories. Based on the total number of

points awarded to Boynton's application, it was not eligible for

the allocation of federal low - income housing credits.

On August 21, 2001, Boynton filed a Petition for an

Informal Hearing ("Petition") with the Florida Housing Finance

Corporation in which it challenged the scoring of Forms 4, 5,

and 20 of its application. Prior to the conduct of an informal

hearing, a hearing officer appointed by the Flori da Housing

Finance Corporation determined that the Petition raised disputed

issues of material fact and, thus, was properly the subject of a

final hearing. The matter was then forwarded to the Division of

Administrative Hearings to conduct a formal hearin g.

In the Prehearing Stipulation filed by the parties prior to

the final hearing, the parties stipulated to certain facts which

required no proof at hearing. The parties also stipulated that

the issues related to the scoring of Forms 4 and 20 of Boynton's

application had been resolved and, accordingly, did not need to

be addressed in this proceeding.

At hearing, Petitioner presented the testimony of Alison

Kerr - Hull Colvard, Jeffrey Kammerude, and Dick Hudson.

Respondent presented the testimony of Chris topher G. Buswell and

Michael Rumph. The parties had six joint exhibits received into

evidence. Petitioner had six exhibits received into evidence

and Respondent had twelve exhibits received into evidence.

A Transcript of the proceeding was filed on Dece mber 12,

2001. At the conclusion of the hearing and at the request of

the parties, the time for filing proposed recommended orders was

set for January 4, 2002. Both parties timely filed Proposed

Recommended Orders. On January 7, 2002, Petitioner filed a

Corrected Proposed Recommended Order. On February 15, 2002, the

parties requested that the undersigned delay issuing the

Recommended Order because the parties were pursuing a settlement

in the case. In a Joint Request filed on February 26, 2002, the

par ties again requested a delay in issuing the Recommended

Order. In a Status Report filed on March 8, 2002, the parties

indicated that they were unable to resolve the matter and

requested that the Recommended Order be issued.

FINDINGS OF FACT

1. Petit ioner, Boynton Associates Ltd., a Florida Limited

Partnership, is the Applicant and owner of property know as

Boynton Terrace Apartments located in Boynton Beach, Palm Beach

County, Florida ("City" or "City of Boynton Beach").

2. To encourage the developm ent of low - income housing for

families, in 1987, Congress created the federal Low - Income

Housing Tax Credit Program that is allotted to each state,

including Florida Tax Credits, each year. The low - income

housing credits equate to a dollar - for - dollar redu ction of the

holder's federal tax liability. This reduction can be taken for

up to ten years if the project satisfies the Internal Revenue

Code's requirements each year.

3. Each state receives an annual allotment of housing

credits, primarily on a per ca pita basis. For the year 2001,

Florida's allotment of low - income housing credits is

$23,973,567, of which $20,695,689 is available for allocation.

4. The Florida Housing Finance Corporation is the "housing

credit agency" responsible for the allocation an d distribution

of Florida's low - income housing tax housing credits to

applicants for the development and/or substantial rehabilitation

of low - income housing. See Subsection 420.5099(1), Florida

Statutes.

5. Pursuant to state and federal mandates, the Flo rida

Housing Finance Corporation has established a competitive

application process for the award of low - income housing credits.

6. Rule 67 - 48.004, Florida Administrative Code, as adopted

on February 22, 2001, established the process by which the

Florida H ousing Finance Corporation evaluates, scores, and

competitively ranks the applicants for the award of funds and

the allocation of housing credits.

7. Under the review and application process, staff of the

Florida Housing Finance Corporation first conducts a preliminary

review of the applications. Based on that review, a preliminary

score is assigned to each application.

8. After the Florida Housing Finance Corporation's

preliminary review and scoring, all applicants may review the

applications and challe nge what they believe to be scoring

errors made by the Florida Housing Finance Corporation. Any

applicant alleging scoring errors must make such challenges, in

writing, on a Notice of Possible Scoring Error Form (NOPSE)

within ten days of the applicant's receiving the preliminary

score. This form is an official form developed and provided by

the Florida Housing Finance Corporation.

9. The Florida Housing Finance Corporation then reviews

each timely filed NOPSE, adjusts scores where applicable, and

issues a position paper to the affected applicants informing

them of the decision relative to the NOPSE. Affected applicants

are then given an opportunity to submit supplemental

information, documentation, or revised documents that might

address challenges made in any NOPSE. Any such submission by an

applicant whose scores have been challenged is called a "Cure."

10. The Florida Housing Finance Corporation provides a

Cure Form on which the challenged applicant may submit its

statement of explanation addressing the issues raised in the

NOPSEs.

11. Following the submission of a Cure by an applicant

whose application has been challenged, competitors are allowed

to review the supplemental or corrective information which

comprises the Cure. After reviewing the Cur e, competitors may

point out what they perceive to be errors or deficiencies on the

challenged applicant's Cure. These perceived errors or

deficiencies are then submitted to the Florida Housing Finance

Corporation, in writing, on a form entitled, Notice o f Alleged

Deficiency (NOAD), that was developed and provided by the

Florida Housing Finance Corporation.

12. The Florida Housing Finance Corporation reviews the

Cure submitted by the applicant whose application has been

challenged and the NOADs submitted by competing applicants.

Following this review, the Florida Housing Finance Corporation

assigns each application a pre - appeal score.

13. Boynton submitted an application to Florida Housing

Finance Corporation for the 2001 Combined Rental Cycle ("200 1

Combined Cycle") to receive annually $559,025.14 in tax credits

for the rehabilitation of Boynton Terrace, a multifamily housing

property. The application was submitted on February 26, 2001,

the deadline for submitting applications for the 2001 Combined

Cycle.

14. Pursuant to the review and scoring procedures set

forth in the 2001 Combined Cycle Application Form and Rule 67 -

48.004, Florida Administrative Code, as adopted February 22,

2001, described in paragraphs 7 through 12 above, the Florida

Housing Finance Corporation scored the application of Boynton.

15. The application for the allocation of housing credits

consists of several forms. However, the only form at issue in

this case is Form 5, entitled "Local Government Contributions."

16. Form 5 ind icates a local government's support of the

affordable housing project for which tax credits are being

sought. In scoring Form 5, Florida Housing Finance Corporation

awards points based on the amount of "tangible, economic benefit

that results in a quantif iable cost reduction and are

development specific."

17. The maximum number of points that can be awarded on

Form 5 is 20 points. To obtain the maximum number of points for

Form 5, the applicant must provide evidence of a local

government contribut ion for which the dollar amount is equal to

or greater than one of the following: (1) a specified amount

according to the county in which the proposed project is

located, or (2) ten percent (10%) of the total development costs

of the project listed in For m 4 of the application. In this

case, Boynton's application indicated that the local government

contribution was 10 percent of its total development costs of

$5,096,789, or $509,678.90.

18. At or near the time Boynton's application was

submitted, the Flo rida Housing Finance Corporation determined

that the application was complete and, thereafter, conducted a

preliminary review of the application. Based on its preliminary

review of Boynton's application, the Florida Housing Finance

Corporation awarded a t otal of 618 points to Boynton. Of this

preliminary score, the Florida Housing Finance Corporation

awarded Boynton 20 points, the maximum allowed, for Form 5.

19. The Florida Housing Finance Corporation's preliminary

award of 20 points to Boynton for its Form 5 was based on local

government contributions listed on the application as follows:

(1) donation of landscaping materials valued at $50,000 and

donation of dumpsters during the rehabilitation of Boynton

Terrace valued at $19,845; (2) waiver of tippin g fees at the

local landfill of $25,500 and waiver of building permit fees of

$61,609; and (3) $353,196 for waiver of the requirement to

construct 58 parking spaces at $6,089.60 per space.

20. Form 5 provides that a local government contribution

for a wai ver of parking space requirements will not be

recognized except in certain circumstances. Among the

circumstances in which a waiver of parking space requirements is

expressly recognized as a local government contribution are

rehabilitation developments lo cated in areas targeted for

neighborhood revitalization by local governments. Once this

threshold requirement is established, the local government must

also verify that the existing local government code would

require the additional parking, and that the parking

requirements are waived specifically for the subject

development.

21. As part of the information required by Form 5, Boynton

provided a letter from Mr. Michael Rumph, the Director of

Planning and Zoning for the City of Boynton Beach, verifying

tha t Boynton Terrace is a rehabilitation development located in

an area targeted for revitalization by the local government.

Additionally, the letter stated in part the following:

In support of the [Boynton Terrace

Apartments] housing development, the City o f

Boynton Beach has accepted and processed an

application for a variance to provide relief

from the City of Boynton Beach Land

Development Regulations, Chapter 2, Zoning,

Section 11 Supplemental Regulations, H. 16.

a.(2)., requiring a minimum parking space

ratio of 2 spaces per unit, to allow a

reduction of 58 spaces or a 1.3 space per

unit variance.

22. The Boynton Terrace Apartments rehabilitation

development is located in an area targeted for neighborhood

revitalization by the local government. As such, if parking

requirements are waived for the project, such waiver or variance

is recognized as a local contribution.

23. Boynton Terrace is comprised of 84 multi - family

residential units. For each unit in the development, the City

of Boynton Beach Land Development Regulations requires two

parking spaces. Accordingly, based on the City's regulations,

168 parking spaces would be required for the Boynton Terrace

development.

24. Boynton applied for a variance to be able to construct

fewer parki ng spaces than the 168 spaces, since much of the area

currently occupied by existing parking would be encroached upon

by the construction of the new clubhouse/community center, the

new landscaping, and other amenities.

25. The City Commission for the Cit y of Boynton Beach,

after a full hearing on Boynton's request, granted the variance,

which obligated Boynton to provide 1.3 parking spaces for every

multi - family residential unit at the property rather than two

parking spaces for every such unit. As a res ult of the City

Commission's decision, the Boynton Terrace development was

required to have 110 parking spaces instead of the 168 spaces

required by the City of Boynton Beach Land Development

Regulations.

26. On Form 5 of its application, Boynton indicate d that

the City reduced the required number parking spaces from 168 to

110. Form 5 of the application also indicated that by the

City's reducing the required number of parking spaces by 58

spaces, the local government contribution with regard to parking

s paces was the cost of constructing 58 parking spaces at a cost

of $6,089.60 per space, or $353,196.80.

27. An attachment to the City's "contribution letter"

referred to in paragraph 21, and part of Boynton's application,

indicated that as a result of the City's reducing the number of

parking spaces required at Boynton Terrace, the City's

contribution to the Boynton Terrace development was $353,196.80.

According to the aforementioned attachment, this amount

represented the cost of constructing 58 parking sp aces at a cost

of $6,089.60 per space.

28. After the Florida Housing Finance Corporation issued

it preliminary scores, three competing applicants submitted

NOPSEs, challenging Boynton's Form 5 score of 20. According to

the NOPSEs, the competing applicant s believed that Boynton was

not entitled to be awarded points based on a local contribution

of $353,196 for a waiver or variance of the number of parking

spaces required for the development. According to the NOPSEs,

Boynton was only receiving a cost savin gs from not having to

construct 11 parking spaces because 157 parking spaces already

existed at Boynton Terrace. Based on these challenges, the

competing applicants indicated that the local government

contribution for a waiver of the City's parking space

requirement should be reduced from $353,196 to $66,985.60, the

cost of Boynton's constructing 11 parking spaces at $6,089.60

per space.

29. The Florida Housing Finance Corporation reviewed and

considered the NOPSEs filed by competing applicants that

chall enged the local government contribution of $353,196 listed

on Form 5 of Boynton's application. Following its review, the

Florida Housing Finance Corporation reduced Boynton's

preliminary score on Form 5 from 20 points to 8.79 points. This

reduction in po ints represented a pro rata reduction based on

the Florida Housing Finance Corporation's decision that the

local government contribution, with regard to parking spaces,

was $66,985.60 instead of $353,196, the amount stated on Form 5

of Boynton's applicatio n.

30. As previously noted in paragraph 10, applicants whose

applications have been challenged are permitted to submit a Cure

in response to NOPSES filed by competing applicants. The

Florida Housing Finance Corporation's Cure Form consists, in

part, of a page entitled "Brief Statement of Explanation for

Revision/Addition for Application 2001 - ____." In addition to

submitting a Cure Form, pursuant to Rule 67.48.004 (11), Florida

Administrative Code, as adopted February 22, 2001, Boynton was

allowed to submit additional documentation, revised forms, and

other information that it deemed appropriate to address the

issues raised in the NOPSEs and to any score reductions imposed

by the Florida Housing Finance Corporation.

31. In response to the NOPSEs fi led by the competing

applicants and the Florida Housing Finance Corporation's

reduction in Boynton's Form 5 score, Boynton submitted an

explanation on a Cure Form, which stated in relevant part the

following:

[T]he application involves substantial

rehabili tation with new amenity areas, a

clubhouse/community center and dumpsters.

To meet the demands called for under the

proposed renovation, many of the parking

spaces are lost to provide for the

rehabilitation and other features called for

within the applica tion. As such, because of

these significant changes, the applicant

would have had have [sic] new parking areas

and the incurred costs in providing for the

new parking. In cooperation and conjunction

with the City, the applicant was able to

obtain specifi c cost savings for the parking

and has evidenced same within the

application as called for. The applicant is

saving the stated number of spaces and the

costs associated with otherwise having to

build them.

32. According to the Cure submitted by Boynton , the

application "involves substantial rehabilitation with new

amenity areas, a clubhouse/community center and dumpsters."

Boynton also stated that "to meet the demands called for under

the proposed renovation, many of the parking spaces are lost to

prov ide for the rehabilitation and other features called for

within the application."

33. While the Cure submitted by Boynton referred generally

to "amenity areas" and a "clubhouse/community and dumpsters,"

Form 7 of Boynton's application noted the spe cific features that

would be included in the Boynton Terrace rehabilitation project.

Form 7 of the application listed several features that could be

included in the rehabilitation project. From this list,

applicants were to mark the boxes, indicating the particular

features that would be included in their respective

developments.

34. Form 7 including the category, "Quality of Design,"

includes Sections A, B, and C. Each section lists features

which the applicant may provide as part of the rehabilit ation

project. At the end of the "Quality of Design" category" is the

following pre - printed language:

IMPORTANT! CHECKING ITEMS IN SECTIONS A, B,

AND C OF QUALITY DESIGN COMMITS THE

APPLICANT TO PROVIDE THEM. . . .

35. On Form 7, Section B of the "Quality of Design"

category, Boynton indicated that it would provide eight of the

listed features. These features included the following:

an exercise room, a community center or clubhouse, a

playground/tot lot, a covered picnic area, an outside recreati on

facility for older children, and a library.

36. After Boynton submitted its Cure Form, competing

applicants filed (NOADs) with the Florida Housing Finance

Corporation pursuant to Rule 67 - 48.004(12), Florida

Administrative Code, as adopted on Febru ary 22, 2001. One NOAD

indicated that no documents were submitted by Boynton to show

the number of spaces that would have to be eliminated or

demolished as part of the rehabilitation or how many spaces

would have to be constructed as part of the rehabilit ation

process. Another NOAD stated that the Cure submitted by Boynton

amounted to a " de facto appeal," because the initial application

did not indicate that the renovation would involve the loss of

parking spaces.

37. The NOADs relied on a 1980 as - built survey to argue

that Boynton Terrace already contained a parking lot with 157

spaces.

38. Based on its review of Boynton's Cure Form and the

NOADs submitted in response thereto, the Florida Housing Finance

Corporation determined that Boynton should be awa rded 8.79

points for Form 5.

39. The Florida Housing Finance Corporation believes that

the 8.79 points awarded to Boynton for Form 5 are appropriate

based on its determination of the local government contribution

listed on and substantiated by the applica tion and the

information provided on Boynton's Cure Form. In reducing

Boynton's preliminary award for Form 5 from 20 points to 8.79,

the Florida Housing Finance Corporation accepted and concurred

with the statements expressed in the NOPSEs. According to those

statements, described in paragraph 28, Boynton should receive

credit for a local contribution of $66,985, the cost of building

11 parking spaces.

40. The Florida Housing Finance Corporation does not

accept that the proposed cost of constructing each new parking

space is $6,089, as noted in Boynton's application, is the

actual cost. Rather, it considers the proposed cost of $6,089

to be questionable. The reason the Housing Corporation

questioned the proposed cost of $6,089 to construct each new

parking space was that documentation reflected that during a

period of less than three months, the projected cost went from

$4,017.19 per space as of December 6, 2000, to $5,821 as of

February 12, 2001, and finally to $6,089 as of February 23,

2001.

41. During the time Boynton's application was being

reviewed, Mr. Christopher Bushwell, a former construction

manager with the Corps of Engineers and an auditor with the

Florida Housing Finance Corporation, questioned the increased

cost of the constructio n of each parking space from $4000 to

$6000. Despite Mr. Bushwell's concern about the accuracy of the

projected cost of construction of each parking space, no staff

member of the Florida Housing Finance Corporation called to

verify the figure with the Cit y of Boynton Beach.

42. The Florida Housing Finance Corporation produced no

evidence to support its contention that the projected or

estimated cost for construction of each parking space was not

accurate. Yet it persisted in its belief that Boynton "back[ed]

into" the parking space estimates solely for the purpose of

presenting to the Florida Housing Finance Corporation a local

government contribution equal to or near $353,196, a figure that

would result in Boynton's being awarded the maximum of 20 p oints

for Form 5.

43. The projected cost of $4,017 for construction of a

parking space was included on the City's Variance Review Report

dated December 6, 2000. That report analyzed Boynton's request

that a variance be granted that allowed one parki ng space per

unit, or a total of only 84 parking spaces. It is unknown who

arrived at this figure or how it was derived.

44. On January 16, 2001, the City agreed to grant Boynton

a variance to reduce the number of parking space by 58, thereby

reducing th e number of required parking spaces from two spaces

per unit to 1.3 spaces per unit.

45. After the variance was granted on January 16, 2001, on

February 12, 2001, the City of Boynton Beach submitted a letter

to the Florida Housing Finance Corporation stat ing that the

variance had been granted reducing the required number of

parking spaces from two spaces per unit to 1.3 spaces per unit.

The letter stated that the cost for each parking space was

$5,821, which would result in a local government contribution of

$337,630.

46. On February 23, 2001, the City of Boynton Beach

submitted another letter to the Florida Housing Finance

Corporation identical to the February 12, 2001, letter except

that the attachment to the former letter indicated that the

constructio n cost for each parking space was $6.089.60. This

projected cost would result in the local government contribution

of $353,196.80 for the reduction in required parking spaces.

47. The estimates for the cost of constructing each

parking space stated in th e February 12 and February 23, 2001,

letters were made by Jeffrey Kammerude and approved by the

City's Engineering Department.

48. Mr. Kammerude is a licensed contractor and the

construction manager of Heritage Construction Company, the

company tha t would be responsible for the renovation of Boynton

Terrace. Mr. Kammerude changed the estimated cost of each

parking space from $5,821 to $6,089 because at the time of the

former estimate, it was his belief that the local building code

required a 20 - foo t minimum driveway or aisle - way. However,

after meeting with City officials, Mr. Kammerude was told that

the 20 - foot aisle - way that he had used in making the February

12, 2001, estimate was incorrect and that with the back - to - back

parking that existed at Boynton Terrace, the aisle - way had to be

27 feet wide. The increased size of the aisle - way would require

a corresponding increase in the required pavement and, thus, an

increase in the cost of constructing each parking space.

49. The reason given by Mr. Kammerude for increasing the

estimated cost of each parking space was uncontroverted.

Moreover, the greater weight of the evidence established that

the estimated cost of $6,089 per parking space was not only

reasonable, but was likely lower than the actua l per space

construction cost because it did not include the cost of

curbing.

50. In view of the credible testimony of Mr. Kammerude,

the cost estimate of $6,089.60 for constructing a parking space

at Boynton Terrace is reasonable.

51. In February 2 001, at or near the time Boynton

submitted its application to the Florida Housing Finance

Corporation, the parking lot at Boynton Terrace was in poor

condition and had many potholes and cracks in the pavement.

Given the condition of the parking lot, the r ehabilitation of

Boynton Terrace would require repaving of at least part of the

parking lot.

52. On October 31, 2001, about eight months after Boynton

submitted its application, Mr. Bushnell went to Boynton Terrace

to count the parking spaces and look at the parking lot. From

his cursory observation, it appeared that the parking lot had

been recently resurfaced and was in "excellent shape. However,

Mr. Bushnell did not conduct a comprehensive inspection of the

parking lot and was unable to determine the quality of the work

done on the parking lot or whether the work complied with the

requirements of the applicable provisions of the City of Boynton

Beach Land Development Code.

53. The City of Boynton Beach requires a permit for the

repaving and/or repair of parking lots at developments such as

Boynton Terrace. However, no permit was issued for the repaving

and/or repair of the parking lot at Boynton Terrace referenced

in the preceding paragraph. Consequently, the City never

conducted an inspection of the parking lot to determine if the

parking lot repairs and/or repaving at Boynton Terrace met the

applicable City Code requirements.

54. Based on the number of parking spaces that

he counted while at Boynton Terrace, Mr. Bushnell questioned the

cost reducti on of eliminating spaces. Moreover, because Mr.

Bushnell saw concrete pads in place for dumpsters, he did not

believe that parking spaces needed to be eliminated in order to

place dumpsters on the property. Finally, in reaching the

conclusion that there would be no reduction in parking spaces,

Mr. Bushnell did not consider the number of spaces that would be

eliminated as a result of the addition of any of the new

amenities to the property such as the clubhouse/community

center, picnic areas, and mailbox kiosks, and the landscaping

required under the City Code.

55. Boynton had a site plan prepared on or near

December 2000, which showed the placement of many of the new

amenities to be included as a part of the rehabilitation of the

Boynton Terrace develop ment. The site plan was used as part of

Boynton's submission and presentation to the City when it was

seeking a parking space variance. According to the site plan,

the clubhouse/community center would consume 25 to 30 parking

spaces, the landscaping of t he development would consume about

15 parking spaces, and the picnic area would consume about two

to four parking spaces.

56. The Florida Housing Finance Corporation did not

consider that the addition of the new amenities would reduce the

number of parkin g spaces at the property and result in the need

to construct new parking spaces unless the City of Boynton Beach

granted a variance to Boynton.

57. Boynton did not include the December 2000 site plan as

part of its application or Cure submitted to the Flo rida Housing

Corporation. Moreover, Boynton did not provide information in

its application or Cure regarding how many spaces would be

eliminated as a result of construction of a clubhouse community

center.

58. At hearing, Boynton presented credible evidence that

the clubhouse/community center would be constructed over

existing parking spaces and that without a variance from the

City of Boynton Beach, it would have to construct new spaces to

replace those spaces lost to construction as well as to othe r

features related to the rehabilitation of the development.

59. Boynton also presented credible evidence that

additional parking spaces at Boynton Terrace would be eliminated

due to the City's landscaping requirements, the construction of

a picnic area, a tot lot, and mail box kiosks.

60. The City's Code requires 20 feet of landscaping for

each parking space. However, this information was not included

in the Cure submitted by Boynton to the Florida Housing Finance

Corporation.

61. The variance granted by the City of Boynton Beach

amounted to a waiver of the parking space requirements

applicable to the Boynton Terrace rehabilitation project which

provided a tangible economic benefit that resulted in a

quantifiable cost reduction that is specific to the development.

CONCLUSIONS OF LAW

62. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding. Subsection 120.57(1), Florida Statutes.

63. Subsection 420.5093(1), Florida Statutes, created the

State Housing Tax Credit Program ("Program"). According to that

provision, the Program was created "for the purposes of

stimulating creative private sector initiatives to increase the

supply of affordable housing in urban areas, inc luding

specifically housing for the elderly, and to provide associated

commercial facilities associated with such housing facilities."

64. The Florida Housing Finance Corporation is authorized

to administer and implement the Program. Pursuant to Sec tion

420.5093, Florida Statutes, the Florida Housing Finance

Corporation is responsible for determining those qualified

projects which shall be considered designated projects and

eligible for tax credit under Section 220.185, Florida Statutes,

and establis hing procedures necessary for proper allocation and

distribution of state housing tax credits.

65. Section 420.5093, Florida Statutes, provides in

material part the following:

(2) The Florida Housing Finance

Corporation shall determine those quali fied

projects which shall be considered

designated projects under s. 220.185 and

eligible for the corporate tax credit under

that section. The corporation shall

establish procedures necessary for proper

allocation and distribution of state housing

tax cre dits, including the establishment of

criteria for any single - family or commercial

component of a project, and may exercise all

powers necessary to administer the

allocation of such credits. . . .

(3) The corporation shall adopt

allocation procedures tha t will ensure the

maximum use of available tax credits in

order to encourage development of low - income

housing and associated mixed - use projects in

urban areas, taking into consideration the

timeliness of the application, the location

of the proposed proje ct, the relative need

in the area of revitalization and low - income

housing and the availability of such

housing, the economic feasibility of the

project, and the ability of the applicant to

proceed to completion of the project in the

calendar year for whic h the credit is

sought.

(4)(a) A taxpayer who wishes to

participate in the State Housing Tax Credit

Program must submit an application for tax

credit to the corporation. The application

shall identify the project and its location

and include evidence t hat the project is a

qualified project as defined in s. 220.185.

The corporation may request any information

from an applicant necessary to enable the

corporation to make tax credit allocations

according to the guidelines set forth in

subsection (3).

66. The terms "designated project" and "qualified

projects" within the meaning of Subsection 420.5093(2), Florida

Statutes, are defined in Subsections 220.185(1)(d) and (e),

Florida Statutes, as follows:

220.185 State housing tax credit. –

(1) DEFINITIONS. – As used in this section,

the term:

(d) "Designated project" means a

qualified project designated pursuant to s.

420.5093 to receive the tax credit under

this section.

(e) "Qualified project" means a project

located in an urban infill a rea, at least 50

percent of which, on a cost basis, consists

of a qualified low - income project within the

meaning of s. 42(g) of the Internal Revenue

Code, including such projects designed

specifically for the elderly but excluding

any income restrictions imposed pursuant to

s. 42(g) of the Internal Revenue Code upon

residents of the project unless such

restrictions are otherwise established by

the Florida Housing Finance Corporation

pursuant to s. 420.5093, and the remainder

of which constitutes commercial or single -

family residential development consistent

with and serving to complement the qualified

low - income project.

67. Pursuant to Subsection 420.5099(1), Florida Statutes,

the Florida Housing Finance Corporation is the housing credit

agency for the State of Florida within the meaning of

42(h)(7)(A) of the Internal Revenue Code of 1986 and is

authorized to establish procedures for the proper allocation and

distribution of low - income housing tax credits. (Pub. L. 101 -

239, Section 7108(c)(1) redesi gnated former paragraph (7) of

42(h) of the Internal Revenue Code as (8).)

68. Section 420.5099, Florida Statutes, provides in

relevant part the following:

420.5099 Allocation of the low - income

housing tax credit. –

(1) The Florida Housing Finance

Corporation is designated the housing credit

agency for the state within the meaning of

s. 42(h)(7)(A) of the Internal Revenue Code

of 1986 and shall have the responsibility

and authority to establish procedures

necessary for proper allocation and

distrib ution of low - income housing tax

credits and shall exercise all powers

necessary to administer the allocation of

such credits.

(2) The corporation shall adopt

allocation procedures that will ensure the

maximum use of available tax credits in

order to enc ourage development of low - income

housing in the state, taking into

consideration the timeliness of the

application, the location of the proposed

housing project, the relative need in the

area for low - income housing and the

availability of such housing, the economic

feasibility of the project, and the ability

of the applicant to proceed to completion of

the project in the calendar year for which

the credit is sought.

(3) The corporation may request such

information from applicants as will enable

it to mak e the allocations according to the

guidelines set forth in subsection (2),

including, but not limited to, the

information required to be provided the

corporation by chapter 67, Florida

Administrative Code.

69. Pursuant to its rulemaking authority gr anted in

Subsection 420.507(12), Florida Statutes, the Florida Housing

Finance Corporation promulgated Rule 67 - 48.004, Florida

Administrative Code. That Rule, as adopted February 22, 2001,

entitled "Application and Selection Procedures for Developments"

s ets forth the application process relevant to the 2001 Combined

Cycle and details the procedures for bringing possible scoring

errors of competitor applicants to the attention of Florida

Housing.

70. Rule 67 - 48.004, Florida Administrative Code, as

ad opted February 22, 2001, provides in relevant part the

following:

(8) The Application Package shall be

evaluated and preliminarily scored using the

factors specified in the Application

Package. Preliminary scores shall be

transmitted to all Applicants along with the

Review Committee's scoring sheets, penalty

report and threshold report.

(9) Applicants who wish to notify the

Corporation of possible scoring errors

relative to another Applicant's Application

must file with the Corporation, within 10

Cal endar Days of the date of receipt of the

preliminary scores, a written request for a

review of the other Applicant's score. Each

request must specify the assigned

Application number and the forms and the

scores in question, as well as describe the

alleged deficiencies in detail. Each

request is limited to the review of only one

Application's score. Requests which seek

the review of more than one Application's

score will be considered improperly filed

and ineligible for review. There is no

limit to the n umber of requests which may be

submitted. The Review Committee will review

each written request timely received.

Failure to timely and properly file a

request shall constitute a waiver of the

right of the Applicant to such a review of

the preliminary scor e; however, Applicants

shall retain the rights set forth in

paragraph (12) below.

(10) The Corporation shall transmit to

each Applicant the notice of possible

scoring errors submitted by other Applicants

with regard to said Application. Said

notice sha ll also include the Review

Committee's position regarding the

correctness of the notice of possible

scoring errors by other Applicants, along

with any other items identified by the

Review Committee to be addressed by the

Applicant.

(11) Within 15 Calend ar Days of the

notice set forth in paragraph (10) above,

each Applicant shall be allowed to submit

additional documentation, revised forms and

such other information as the Applicant

deems appropriate to address the issues

raised pursuant to paragraphs (8) and (10)

above that could result in rejection of the

Application, imposition of penalties or a

score less than the maximum available on

each form. Where specific pages of the

Application are revised, changed or added,

each new page(s) must be marked as

" revised," and submitted. Failure to mark

each new page(s) "revised" will result in

the Corporation not considering the

revisions, changes or additions to that new

page. Pages of the Application that are not

revised or otherwise changed may not be

resubmi tted. 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. The

Applicant shall submit an original and three

copies of all additional documentation and

revisions. Only revisions, changes and

other information received by the deadline

set forth herein will be considered. Any

subsequent revi sion submitted prior to the

deadline shall include a written request

from the Applicant for withdrawal of any

previously submitted revision(s). Each

Applicant must submit a computer disk

containing all revised completed forms.

Nothing on the computer disk that is not

otherwise contained within the original of

the revised forms will be considered.

(12) Within 10 Calendar Days of the

deadline for receipt by the Corporation of

the documentation set forth in paragraph

(11) above, all Applicants may submit t o the

Corporation a notice of alleged deficiencies

in any other Application. Each notice is

limited only to issues created by documents

revised and/or added by the Applicant

submitting the Application pursuant to

paragraph (11) above. Each request must

s pecify the assigned Application number, the

forms and the documents in question, as well

as describe the alleged deficiencies in

detail. Each notice is limited to the

review of only one Applicant's submission.

However, there is no limit to the number of

n otices which may be submitted. Notices

which seek the review of more than one

Applicant's submission will be considered

improperly filed and ineligible for review.

The Review Committee will only review each

written notice timely Received.

(13) The Corp oration shall transmit a

copy of the notices of alleged deficiencies

to the affected Applicant.

(14) Following the receipt and review by

the Review Committee of the documentation

described in paragraphs (10), (11) and (12)

above, the Review Committee sh all then

prepare pre - appeal scores. In determining

such pre - appeal scores, no Application shall

be rejected, receive a point reduction or

have any penalty imposed as a result of any

issues not previously identified in the

notices described in paragraphs ( 8), (9) and

(10) above. However, inconsistencies

created by the Applicant as a result of

information provided pursuant to paragraph

(11) above will still be justification for

rejection, reduction of points or penalties

imposed, as appropriate. Notwithsta nding

the foregoing, any deficiencies in the

mandatory elements set forth in paragraph

(18) below can be identified at any time

prior to preparation of the pre - appeal

scores and will result in rejection of the

Application. Pre - appeal scores shall then

be transmitted to all Applicants, along with

notice of appeal rights.

* * *

(16) If any Applicant or any Affiliate of

an Applicant is determined by the

Corporation to have engaged in fraudulent

actions or to have deliberately and

materially misrepre sented information within

the current Application or in any previous

Applications for financing or Housing

Credits administered by the Corporation, the

Applicant and any of Applicant's Affiliates

will be ineligible to participate in any

program administere d by the Corporation for

a period of up to two years, which will

begin from the date the Board approves the

disqualification of the Applicant's

Application. Such determination shall be

either pursuant to a factual hearing before

the Board at which the App licant shall be

entitled to present evidence or as a result

of a finding by a court of law or

recommended order of an administrative law

judge. The Applicant or Affiliate of the

Applicant determined to be ineligible shall

be entitled to file a petition co ntesting

such determination within 21 Calendar Days

of notice by the Corporation pursuant to the

provisions of Chapter 120, Florida Statutes.

Failure to timely file a petition shall

constitute a waiver of the right to contest

the determination.

71. As an applicant for housing tax credits, Petitioner

Boynton bears the burden to demonstrate by a preponderance of

the evidence in the record that it is entitled to the additional

points at issue in this proceeding. Department of

Transportation v. J.W.C., Co. , 396 So. 2d 778 (Fla 1st DCA

1981). In this case, Boynton has met its burden.

72. The evidence established that Boynton received a local

contribution credit for the provision of 58 parking spaces for

its rehabilitated development. The uncontrov erted evidence

established that under applicable City regulations, 168 parking

spaces were required for the major rehabilitation of Boynton

Terrace. Moreover, it was undisputed that the City of Boynton

Beach adopted a variance waiving this City Code requi rement, so

that Boynton was required to provide only 110 parking spaces in

the rehabilitated development.

73. The undisputed evidence established that between 58

and 65 existing parking spaces will be lost to accommodate the

addition of several new a menities and other features of the

rehabilitation project that were included in Boynton's

application. Moreover, the evidence established that without a

variance, Boynton would have to construct parking spaces to

replace all those lost to the construction of the new amenities

as well as additional spaces needed to meet the City Code

requirement of two parking spaces per unit.

74. The greater weight of evidence established that

Boynton's cost savings estimates of $6,089.60 per parking space

and $353,1 96.80 total for the 58 parking spaces were waived

pursuant to the City's variance for Boynton Terrace.

75. The City's granting of the variance, and, thereby,

waiving of the parking space requirements applicable to Boynton

Terrace, results in a tangib le economic benefit of $353,196.80

that is specific to the Boynton Terrace rehabilitation project.

Therefore, Boynton is entitled to maximum award of 20 points for

Form 5 of its 2001 Combined Cycle application, for a total of

622 points for its applicatio n.

RECOMMENDATION

Based on the foregoing Findings of Facts and Conclusions of

Law, it is

RECOMMENDED that the Florida Housing Finance Corporation

award to Petitioner, Boynton Associates, Ltd., the maximum

number of 20 points for Form 5 of the 2001 Combine d Cycle, and

enter a Final Order awarding Boynton Associates, Ltd., a total

of 622 points for it Combined Cycle Application.

DONE AND ENTERED this 17th day of April, 2002, in

Tallahassee, Leon County, Florida,

______________ _____________________

CAROLYN S. HOLIFIELD

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 17th day of April, 2002.

COPIES FURNISHED :

Mark Kaplan, Executive Director

Florida Housing Finance Corporation

227 North Bronough Street, Suite 5000

Tallahassee, Florida 32301 - 13 29

Elizabeth G. Arthur, Esquire

Florida Housing Finance Corporation

227 North Bronough Street, Suite 5000

Tallahassee, Florida 32301 - 1329

Jon C. Moyle, Jr., Esquire

Moyle, Flanigan, Katz, Kollins,

Raymond & Sheehan, P.A.

118 North Gadsden Street

Tall ahassee, Florida 32301

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 Order should be filed with the agency that

w ill issue the final order in this case.