17-003270BID Madison Point, Llc And American Residential Development, Llc vs. Florida Housing Finance Corporation
 Status: Closed
Recommended Order on Friday, August 11, 2017.


View Dockets  
Summary: Intervenor's exclusion of existing, occupied units on the proposed development site constituted a material non-waivable error; tax credits should be awarded to Petitioners.

1Hillsborough, Orange, Palm Beach, and Pinellas Counties (the "RF A"). The matter

14for consideration before this Board is a Recommended Order issued pursuant to

26§§ 120.57(1) and (3 ), Fla. Stat. and the Exceptions to the Recommended Order, and

41Responses thereto.

43On October 28, 2016, Florida Housing Finance Corporation ("Florida

53Housing") issued the RF A, which solicited applications to compete for an allocation

67of low income housing credit funding. Responses to the RF A were initially due on

82December 8, 2016. The RFA was modified on November 10, 2016, and the

95application period was extended to December 30,2016. In response to the RFA, 43

109developers (including Petitioners and Intervenors in this case) submitted

118applications .

120On May 5, 2017, Florida Housing posted notice of its intended decision to

133award funding to seven Applicants, including Intervenor Heritage Oaks. Through

143the ranking and selection process outlined in the RF A, Petitioners Madison Point

156and Intervenor HTG Hudson were deemed eligible for funding but Petitioners'

167application was ranked lower than HTG Hudson and Heritage Oaks. While Florida

179Housing initially determined that HTG Hudson was eligible for funding, Florida

190Housing and HTG Hudson subsequently stipulated that HTG Hudson's application

200was ineligible for funding. Petitioners timely filed their notices of intent to protest

213followed by formal written protests. Notices of Appearance/Motions to Intervene

223were filed by Heritage Oaks as well as HTG Hudson. Those motions were

236subsequently granted. Petitioners filed a Motion in Limine regarding Heritage Oaks'

247intervention, but ultimately withdrew the motion prior to hearing.

256The protests were referred to the Division of Administrative Hearings

266(DOAH). A formal hearing took place on July 5, 2017, in Tallahassee, Florida

279before the Honorable Administrative Law Judge Y olonda Y. Green ("ALJ"). At

293hearing, Petitioners argued that Heritage Oaks' application should be ineligible for

304several reasons including: failure to select the appropriate Development Category,

314failure to accurately respond to the question regarding occupancy status, and failure

326to submit a proper Local Government Contribution F onn. Based on information

338discovered through the course of the litigation, Florida Housing took the position at

351hearing that Heritage Oaks' application should be ineligible for failure to accurately

363respond to the question regarding occupancy status but disagreed with the other

375issues raised by Madison Point. Heritage Oaks argued that Florida Housing's

386preliminary agency action was correct and should be upheld. After the hearing, the

399parties timely filed Proposed Recommended Orders.

405After consideration of the oral and documentary evidence presented at

415hearing, and the entire record in the proceeding, the ALJ issued a Recommended

428Order on August 11 , 2017 . A tn1e and correct copy of the Recommended Order is

444attached hereto as "Exhibit A." The ALJ determined that Petitioners met their

456burden to establish that Heritage Oaks' failure to accurately respond to the

468occupancy status of existing units was a false statement and material deviation.

480Therefore, Florida Housing's scoring decision regarding the occupancy status

489question was contrary to the terms of the RF A and clearly erroneous and Heritage

504Oaks is not eligible for funding. The Recommended Order recommended that

515Florida Housing enter a final order rescinding the intended award to Heritage Oaks

528and designating Petitioners as the recipients of funding under RF A 2 016-113.

541Heritage Oaks filed Exceptions to the Recommended Order and Petitioners

551and Florida Housing filed a Joint Response to Heritage Oaks' Exceptions to the

564Recommended Order, which are addressed as follows:

571HERITAGE OAKS' EXCEPTIONS TO FINDINGS OF FACT

5786. Heritage Oaks takes exception to the Findings of Fact set forth

590Paragraphs 45, 46, 48, and 50 of the Recommended Order.

6007. Mter a review of the record, the Board finds that the Findings of Fact

615set forth in Paragraphs 45 , 46, 48, and 50 of the Recommended Order are supported

630by competent, substantial evidence, and the Board rejects Heritage Oaks' Exceptions

641to the Findings of Fact set forth in Paragraphs 45, 46, 48, and 50 of the

657Recommended Order .

660HERITAGE OAKS' EXCEPTIONS TO CONCLUSIONS OF LAW

6678. Heritage Oaks takes exception to the Conclusions of Law set forth in

680Paragraphs 81, 82 , and 83 of the Recommended Order.

6899. The Board finds that it has substantive jurisdiction over the issues

701presented in Paragraphs 81 , 82 , and 83 of the Recommended Order .

71310. After a review of the record, the Board finds that the Conclusions of

727Law set forth in Paragraphs 81, 82, and 83 of the Recommended Order are

741reasonable and supported by competent, substantial evidence, and rejects Heritage

751Oaks' Exceptions to the Conclusions of Law presented in Paragraphs 81, 82, and 83

765of the Recommended Order .

770RULING ON THE RECOMMENDED ORDER

77515. The Findings of Fact set out in the Recommended Order are supported

788by competent substantial evidence .

79316. The Conclusions of Law of the Recommended Order are reasonable

804and supported by competent, substantial evidence.

810ORDER

811In accordance with the foregoing, it is hereby ORDERED:

820The Findings of Fact of the Recommended Order are adopted as Florida

832Housing's Findings of Fact and incorporated by reference as though fully set

844forth in this Order. The Conclusions of Law in the Recommended Order are

857adopted as Florida Housing's Conclusions of Law and incorporated by

867reference as though fully set forth in this Order.

876IT IS HEREBY ORDERED that the preliminary award to Heritage Oaks is

888rescinded, HTG Hudson and Heritage Oaks are ineligible, and Madison Point, LLC

900is a recipient of funding under RF A 2016-113.

909DONE and ORDERED this 22nd day of September 2017 .

919FLORIDA HOUSING FINANCE

922CORPORATION

923ilair

924CERTIFICATE OF SERVICE

927I hereby certify that a true and correct copy of the foregoing has been served

942by electronic mail day of September, 2017 to the following:

952Hugh R. Brown, General Counsel

957Florida Housing Finance Corporation

961227 North Bronaugh Street, Suite 5000

967Tallahassee, Florida 32301

970Hugh.Brown@floridahousing.org

971Betty Zachem, Esq .

975Florida Housing Finance Corporation

979227 North Bronaugh Street, Suite 5000

985Tallahassee, Florida 32301

988Betty. Zachem@floridahousing. org

991Marisa G. Button, Esq.

995Florida Housing Finance Corporation

999227 North Bronaugh Street, Suite 5000

1005Tallahassee, Florida 32301

1008Marisa.Button@floridahousing.org

1009Brantley Henderson, Interim Director of Multifamily Programs

1016Florida Housing Finance Corporation

1020227 North Bronaugh Street, Suite 5000

1026Tallahassee, Florida 32301

1029Brantley.Henderson@floridahousing.org

1030Trey Price, Executive Director

1034Florida Housing Finance Corporation

1038227 North Bronaugh Street, Suite 5000

1044Tallahassee, Florida 32301

1047Trey.Price@floridahousing.org

1048Michael G. Maida, Esq.

1052Michael G. Maida, P.A.

10561709 Hermitage Boulevard, Suite 201

1061Tallahassee, Florida 32308

1064mike@maidalawpa.com

1065Douglas P. Manson, Esq.

1069Manson Bolves Donaldson & Varn, P.A.

10751101 West Swann A venue

1080Tampa, Florida 33606

1083dmanson@mansonbolves.com

1084Paria Shirzadi, Esq.

1087Manson Bolves Donaldson & Varn, P.A.

10931101 West Swann A venue

1098Tampa, Florida 33606

1101pshirzadi@mansonbolves. com

1103Craig D. Varn, Esq.

1107Manson Bolves Donaldson & Varn, P.A.

1113204 South Monroe Street, Suite 201

1119Tallahassee, Florida 32301

1122cvarn@mansonbolves.com

1123J. Timothy Schulte, Esq.

1127Zimmerman, Kiser, & Sutcliffe, P.A.

1132315 East Robinson Street, Suite 600

1138Orlando, Florida 32801

1141tschulte@zkslawfirm. com

1143Sarah Pape, Esq.

1146Zimmerman, Kiser, & Sutcliffe, P.A.

1151315 East Robinson Street, Suite 600

1157Orlando, Florida 32801

1160spape@zkslawfirm.com

1161Michael P. Donaldson, Esq.

1165Carlton Fields Jorden Burt, P.A.

1170P.O. Drawer 190

1173215 South Monroe Street, Suite 500

1179Tallahassee, Florida 32302

1182mdonaldson@carltonfields. com

1184Maureen McCarthy Daughton, Esq.

1188Maureen McCarthy Daughton, LLC

11921725 Capital Circle Northeast, Suite 304

1198Tallahassee, Florida 32308

1201mdaughton@mmd-lawfirm.com

1202rporatton Clerk

1204NOTICE OF RIGHT TO JUDICIAL REVIEW

1210A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS

1221ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68,

1229FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY

1236THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH

1243PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A

1252NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE FLORIDA

1262HOUSING FINANCE CORPORATION, 227 NORTH BRONOUGH

1268STREET, SUITE 5000, TALLAHASSEE, FLORIDA 32301-1329, AND A

1276SECOND COPY, ACCOMPANIED BY THE FILING FEES PRESCRIBED

1284BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT,

12942000 DRAYTON DRIVE, TALLAHASSEE, FLORIDA 32399-1850, OR IN

1302THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT

1311WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE

1321FILED WITHIN THIRTY (30) DAYS OF RENDITION OF THE ORDER TO

1332BE REVIEWED.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 11/27/2017
Proceedings: Agency Final Order filed.
PDF:
Date: 09/22/2017
Proceedings: Agency Final Order
PDF:
Date: 09/22/2017
Proceedings: Agency Final Order
PDF:
Date: 09/22/2017
Proceedings: Agency Final Order
PDF:
Date: 08/11/2017
Proceedings: Recommended Order
PDF:
Date: 08/11/2017
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 08/11/2017
Proceedings: Recommended Order (hearing held July 5, 2017). CASE CLOSED.
PDF:
Date: 07/24/2017
Proceedings: Petitioners' Proposed Recommended Order filed.
PDF:
Date: 07/24/2017
Proceedings: Respondent's Proposed Recommended Order filed.
PDF:
Date: 07/24/2017
Proceedings: (Heritage Oaks, LLLP's Proposed) Recommended Order filed.
PDF:
Date: 07/24/2017
Proceedings: Intervenor Heritage Oaks, LLLP's Notice of Filing Proposed Recommended Order filed.
Date: 07/18/2017
Proceedings: Corrected Transcript of Proceedings (page 92, line 20, not available for viewing) filed.
Date: 07/12/2017
Proceedings: Transcript of Proceedings (not available for viewing) filed.
Date: 07/05/2017
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 07/05/2017
Proceedings: Joint Supplemental Prehearing Stipulation filed.
PDF:
Date: 07/03/2017
Proceedings: Notice of Objection to Exhibits filed.
PDF:
Date: 07/03/2017
Proceedings: Petitioners' Madison Point, LLC and American Residential Development, LLC's Notice of Filing (Houston Street Final Order, JPM Outlook Recommended Order) filed.
PDF:
Date: 07/03/2017
Proceedings: Joint Prehearing Stipulation filed.
PDF:
Date: 07/03/2017
Proceedings: Notice of Appearance (Marisa Button) filed.
PDF:
Date: 06/30/2017
Proceedings: Respondent Florida Housing Finance Corporation?s Response to Petitioners' Madison Point, LLC and American Residential Development, LLC's Amended First Requests for Admission to Florida Housing Finance Corporation filed.
PDF:
Date: 06/30/2017
Proceedings: Order Denying Petitioners' Second Motion for Leave to Amend Formal Written Protest of Award and Petition for Administrative Hearing.
PDF:
Date: 06/29/2017
Proceedings: Notice of Service of Heritage Oaks, LLLP's Amended Unverified Responses and Objections to Madison Point, LLC and American Residential Development, LLC's First Set of Interrogatories to Heritage Oaks, LLLP filed.
PDF:
Date: 06/29/2017
Proceedings: Petitioners Madison Point, LLC and American Residential Development, LLC's Notice of Cancellation of the Deposition of Ken Reecy filed.
PDF:
Date: 06/29/2017
Proceedings: Respondent Florida Housing Finance Corporation?s Response to Petitioners? Madison Point, LLC and American Residential Development, LLC?s Amended First Requests for Admission to Florida Housing Finance Corporation filed.
PDF:
Date: 06/29/2017
Proceedings: Petitioners Madison Point, LLC and American Residential Development, LLC's Notice of Withdrawal of the First Request for Admissions to HTG Hudson, LLC filed.
PDF:
Date: 06/29/2017
Proceedings: Order Granting Motion to Amend Formal Written Protest of Award and Petition for Administrative Hearing.
PDF:
Date: 06/29/2017
Proceedings: Petitioners Madison Point, LLC and American Residential Development, LLC's Notice of Taking Deposition (Debbie Blinderman) filed.
PDF:
Date: 06/29/2017
Proceedings: Heritage Oaks, LLLP's Response to Petitioners' Second Motion to Amend Formal Written Protest filed.
PDF:
Date: 06/29/2017
Proceedings: Order Denying Intervenor's Motion to Compel.
PDF:
Date: 06/29/2017
Proceedings: Petitioners Madison Point, LLC and American Residential Development, LLC's Amended Notice of Taking Deposition filed.
PDF:
Date: 06/29/2017
Proceedings: Order Granting in Part and Denying in Part Petitioners' Motion to Compel.
PDF:
Date: 06/29/2017
Proceedings: Petitioners' Second Motion to Amend Formal Written Protest of Award and Petition for Administrative Hearing filed.
PDF:
Date: 06/28/2017
Proceedings: Notice of Taking Telephonic Deposition of Richard Gehring filed.
PDF:
Date: 06/28/2017
Proceedings: Heritage Oaks, LLLP's Responses to Petitioners' Third Requests for Admission filed.
PDF:
Date: 06/28/2017
Proceedings: Heritage Oaks, LLLP's Responses to Petitioners' Second Requests for Admission filed.
PDF:
Date: 06/28/2017
Proceedings: Petitioners Madison Point, LLC and American Residential Development, LLC's Notice of Filing (Robert King High, FHFC Case No. 2014-062BP Recommended Order) filed.
PDF:
Date: 06/28/2017
Proceedings: Heritage Oaks, LLLP's Response to Order to Show Cause filed.
PDF:
Date: 06/28/2017
Proceedings: Petitioners Madison Point, LLC and American Residential Development, LLC's Response to Order to Show Cause filed.
PDF:
Date: 06/28/2017
Proceedings: Notice of Service of Heritage Oaks, LLLP's Verified Responses and Objections to Madison Point, LLC and American Residential Development, LLC's First Set of Interrogatories to Heritage Oaks, LLLP filed.
PDF:
Date: 06/28/2017
Proceedings: Petitioners Madison Point, LLC and American Residential Development, LLC's Notice of Cancellation of the Deposition of Debra Johnson filed.
PDF:
Date: 06/28/2017
Proceedings: Order to Show Cause.
PDF:
Date: 06/28/2017
Proceedings: Intervenor's Motion to Compel Responses to Request for Admissions and Answers to Interrogatories filed.
PDF:
Date: 06/27/2017
Proceedings: Petitioners Madison Point, LLC and American Residential Development, LLC's Motion to Compel Responses to Request for Admissions and Answers to Interrogatories filed.
PDF:
Date: 06/27/2017
Proceedings: Order Recognizing HTG Hudson's Appearance as an Intervenor.
PDF:
Date: 06/27/2017
Proceedings: Respondent Florida Housing Finance Corporation's Joinder in Heritage Oaks, LLLP's Response to Madison Point, LLC and American Residential Development, LLC's Motion in Limine filed.
PDF:
Date: 06/27/2017
Proceedings: Heritage Oaks, LLLP's Response to Madison Point, LLC and American Residential Development, LLC's Motion in Limine filed.
PDF:
Date: 06/27/2017
Proceedings: Heritage Oaks, LLLP's Responses to Petitioners' First Requests for Admission filed.
PDF:
Date: 06/27/2017
Proceedings: Notice of Service of Heritage Oaks, LLLP's Unverified Responses and Objections to Madison Point, LLC and American Residential Development, LLC's First Set of Interrogatories to Heritage Oaks, LLLP filed.
Date: 06/26/2017
Proceedings: CASE STATUS: Status Conference Held.
PDF:
Date: 06/26/2017
Proceedings: Petitioners Madison Point, LLC and American Residential Development, LLC's Notice of Taking Deposition Duces Tecum (Debra Johnson) filed.
PDF:
Date: 06/23/2017
Proceedings: Petitioners Madison Point, LLC and American Residential Development, LLC's Third Request for Admissions to Heritage Oaks, LLLP filed.
PDF:
Date: 06/23/2017
Proceedings: Petitioners Madison Point, LLC and American Residential Development, LLC's Second Request for Admissions to Heritage Oaks, LLLP filed.
PDF:
Date: 06/23/2017
Proceedings: Petitioners Madison Point, LLC and American Residential Development, LLC's Amended First Requests for Admission to Florida Housing Finance Corporation filed.
PDF:
Date: 06/23/2017
Proceedings: Petitioners Madison Point, LLC and American Residential Development, LLC's First Requests for Admission to Florida Housing Finance Corporation filed.
PDF:
Date: 06/23/2017
Proceedings: Petitioners Madison Point, LLC and American Residential Development, LLC's Notice of Taking Deposition Duces Tecum of Corporate Representative of Pinellas County filed.
PDF:
Date: 06/23/2017
Proceedings: Supplement to Petitioners' Motion to Amend Formal Written Protest of Award and Petition (to Update Parties' Positions on Motion) filed.
PDF:
Date: 06/23/2017
Proceedings: Petitioners Madison Point, LLC and American Residential Development, LLC's Notice of Taking Deposition (Brian Evjen) filed.
PDF:
Date: 06/23/2017
Proceedings: Petitioners' Madison Point, LLC and American Residential Development, LLC's Notice of Taking Deposition (K. Reecy) filed.
PDF:
Date: 06/23/2017
Proceedings: Petitioners' Motion to Amend Formal Written Protest of Award and Petition for Administrative Hearing filed.
PDF:
Date: 06/22/2017
Proceedings: Petitioners Madison Point, LLC and American Residential Development, LLC's First Requests for Admission to HTG Hudson, LLC filed.
PDF:
Date: 06/21/2017
Proceedings: Petitioners Madison Point, LLC and American Residential Development, LLC's Response to Heritage Oaks' Request for Admissions filed.
PDF:
Date: 06/21/2017
Proceedings: Notice of Service of Petitioners Madison Point, LLC and American Residential Development, LLC's Responses to Heritage Oaks' First Set of Interrogatories filed.
PDF:
Date: 06/20/2017
Proceedings: Petitioners Madison Point, LLC and American Residential Development, LLC's Amended Motion in Limine Regarding Heritage Oaks, LLLP's Intervention (Amended to Add Rule 28-106.204(3) Certification Statement) filed.
PDF:
Date: 06/20/2017
Proceedings: Petitioners Madison Point, LLC and American Residential Development, LLC's Notice of Service of First Set of Interrogatories to Heritage Oaks filed.
PDF:
Date: 06/20/2017
Proceedings: Notice of Taking Deposition (Michael Delk) filed.
PDF:
Date: 06/20/2017
Proceedings: Notice of Telephonic Status Conference (status conference set for June 26, 2017; 10:00 a.m.).
PDF:
Date: 06/20/2017
Proceedings: Notice of Appearance (Scott McLaren) filed.
PDF:
Date: 06/20/2017
Proceedings: Petitioners Madison Point, LLC and American Residential Development, LLC's First Requests for Admission to Heritage Oaks, LLLP filed.
PDF:
Date: 06/20/2017
Proceedings: Petitioners Madison Point, LLC and American Residential Development, LLC's Motion in Limine Regarding Heritage Oaks, LLLP's Intervention filed.
PDF:
Date: 06/16/2017
Proceedings: Notice of Service of Heritage Oaks, LLLP's First Set of Interrogatories to Petitioners filed.
PDF:
Date: 06/16/2017
Proceedings: Heritage Oaks, LLLP's First Request for Admissions to Petitioners filed.
PDF:
Date: 06/16/2017
Proceedings: Order Granting Motion to Intervene.
PDF:
Date: 06/15/2017
Proceedings: Petitioners' Madison Point, LLC and American Residential Development, LLC's Response in Opposition to HTG Hudson, LLC's Notice of Appearance/Intervention filed.
PDF:
Date: 06/15/2017
Proceedings: Notice of Appearance (Paria Shirzadi) filed.
PDF:
Date: 06/09/2017
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 06/09/2017
Proceedings: Notice of Hearing (hearing set for July 5 and 7, 2017; 9:30 a.m.; Tallahassee, FL).
PDF:
Date: 06/09/2017
Proceedings: Notice of Appearance/Motion to Intervene (Heritage Oaks, LLLP) filed.
PDF:
Date: 06/09/2017
Proceedings: Notice of Appearance (Michael Donaldson) filed.
PDF:
Date: 06/08/2017
Proceedings: Notice of Telephonic Scheduling Conference (status conference set for June 9, 2017; 10:00 a.m.).
PDF:
Date: 06/08/2017
Proceedings: HTG Hudson, LLC's Notice of Appearance (Maureen McCarthy Daughton) filed.
PDF:
Date: 06/08/2017
Proceedings: Notice of Appearance (Betty Zachem) filed.
PDF:
Date: 06/07/2017
Proceedings: Formal Written Protest of Award and Petition for Administrative Hearing filed.
PDF:
Date: 06/07/2017
Proceedings: Notice to All Bidders on RFA 2016-113 filed.
PDF:
Date: 06/07/2017
Proceedings: Agency referral filed.

Case Information

Judge:
YOLONDA Y. GREEN
Date Filed:
06/07/2017
Date Assignment:
06/07/2017
Last Docket Entry:
11/27/2017
Location:
Tallahassee, Florida
District:
Northern
Agency:
ADOPTED IN TOTO
Suffix:
BID
 

Counsels

Related Florida Statute(s) (6):