18-002130BID Htg Heron Estates Family, Llc vs. Florida Housing Finance Corporation
 Status: Closed
Recommended Order on Friday, June 29, 2018.


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Summary: Petitioners failed to prove that Florida Housing's determinations of eligibility and its intended award of tax credits were clearly erroneous, contrary to competition, arbitrary or capricious.

1Petitioners HTG Heron Estates Family, LLC ("HTG Heron"); and Channel Side

14Apartments, LTD ("Channel Side") and Intervenor Ocean Breeze East Apartments,

26LLC ("Ocean Breeze") were Applicants under Request for Applications 2017-113,

38Housing Credit Financing for Affordable Housing Developments Located in

47Broward, Duval, Hillsborough, Orange, Palm Beach, and Pinellas Counties (the

"57RF A"). The matter for consideration before this Board is a Recommended Order

71issued pursuant to §§120.57(1) and (3), Fla. Stat. and the Exceptions to the

84Recommended Order.

86On October 6, 2017, Florida Housing Finance Corporation ("Florida

96Housing") issued the RF A, which solicited applications to compete for an allocation

110of low income housing credit funding. On March 16, 2018, Florida Housing posted

123notice of its intended decision to award funding to one applicant from each of the

138six counties, and one additional applicant from Broward County. Respondent Ocean

149Breeze was selected for funding from Palm Beach County. Petitioners HTG Heron

161and Channel Side were deemed eligible for funding, but through the process outlined

174in the RF A they were ranked lower than Ocean Breeze and were not selected for

190funding. Petitioners timely filed their notices of intent to protest followed by formal

203written protests. Ocean Breeze also filed a formal written protest.

213The protests were referred to the Division of Administrative Hearings

223("DOAH"). A formal hearing took place on May 21, 2018, in Tallahassee, Florida,

238before Administrative Law Judge Hetal Desai (the "ALJ"). Prior to this hearing, the

252ALJ determined that Ocean Breeze had standing as a named party, severed the

265protest initiated by Ocean Breeze from the remaining consolidated cases, and

276relinquished jurisdiction of Ocean Breeze's petition to Florida Housing. Florida

286Housing entered a Final Order on July 20, 2018 dismissing Ocean Breeze's petition.

299At hearing, HTG Heron and Channel Side argued that Ocean Breeze's

310application should be deemed ineligible for failure to demonstrate site control.

321Channel Side and Ocean Breeze argued that HTG Heron's application should be

333deemed ineligible for failure to provide a correct address of the proposed

345development site. Ocean Breeze argued that Channel Side's application should be

356deemed ineligible for failure to demonstrate site control. Florida Housing

366maintained its initial position that all parties' applications were properly deemed

377eligible. After the hearing, all parties timely filed Proposed Recommended Orders.

388After consideration of the oral and documentary evidence presented at

398hearing, and the entire record in the proceeding, the ALJ issued a Recommended

411Order on June 29, 2018. A true and correct copy of the Recommended Order is

426attached hereto as "Exhibit A." The ALJ determined that Petitioners had failed to

439meet their burden to establish that Florida Housing's initial determination was

450contrary to the terms of the RF A or was clearly erroneous, and recommended that

465Florida Housing award funding to Ocean Breeze and dismiss the formal written

477protests of HTG Heron and Channel Side.

484Florida Housing filed two Exceptions to the Recommended Order. No other

495party filed Exceptions, and no other party filed any response to Florida Housing's

508Exceptions.

509Florida Housing's First Exception

513Florida Housing takes Exception to Findings of Fact 26 and 48, in which the

527ALJ made findings concerning what would happen if an applicant selected for

539funding failed to gamer a positive recommendation through the credit underwriting

550process. Florida Housing correctly points out that there is no competent substantial

562evidence to support these findings, and that these findings are in direct conflict with

576the plain and unambiguous language of the RF A. Florida Housing's First Exception

589is accepted, and Findings of Fact 26 and 48 in the Recommended Order are rejected

604and not adopted in this Final Order.

611Florida Housing's Second Exception

615Florida Housing takes Exception to Conclusion of Law 89, which states that

"627The RF A specifically provides a remedy for reassigning the funding award to the

641applicant next in line." This conclusion is in direct conflict with the express

654language of the RF A, which provides that any returned allocation "will be

667distributed as approved by the Board." · Florida Housing has substantive jurisdiction

679over this conclusion because it is clearly based on a provision in the RF A. Florida

695Housing's Second Exception is accepted, and Conclusion of Law 89 in the

707Recommended Order is rejected and not adopted in this Final Order.

718Ruline: on the Recommended Order

723Except for Findings of Fact 26 and 48, the Findings of Fact set out in the

739Recommended Order are supported by competent substantial evidence.

747Except for Conclusion of Law 89, the Conclusions of Law of the

759Recommended Order are reasonable and supported by competent substantial

768evidence.

769In accordance with the foregoing, it is hereby ORDERED:

778The Findings of Fact of the Recommended Order, except for Findings of Fact

79126 and 48, are adopted as Florida Housing's Findings of Fact and incorporated by

805reference as though fully set forth in this Order. The Conclusions of Law in the

820Recommended Order, except for Conclusion of Law 89, are adopted as Florida

832Housing's Conclusions of Law and incorporated by reference as though fully set

844forth in this Order.

848The Recommendation of the Recommended Order is adopted.

856Florida Housing's scoring and ranking ofRFA 2017-113 is AFFIRMED and

866the relief requested in the Petitions is DENIED.

874DONE and ORDERED this 27 1 h day of July, 2018.

885FLORIDA HOUSING FINANCE

888CORPORATION

889Copies to:

891Betty Zachem, Assistant General Counsel

896Betty . Zachem@floridahousing.org

899Maureen M. Daughton, Esq.

903mda ughton@mmd -lawfi rm .com

908Michael P. Donaldson, Esq.

912mdonaldson@carltonfields.com

913M. Christopher Bryant, Esquire

917cbryant@ohfc.com

918NOTICE OF RIGHT TO JUDICIAL REVIEW

924A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER

934IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68,

943FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE

951FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS

958ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL

969WITH THE AGENCY CLERK OF THE FLORIDA HOUSING FINANCE

978CORPORATION, 227 NORTH BRONOUGH STREET, SUITE 5000 ,

985TALLAHASSEE, FLORIDA 32301-1329, AND A SECOND COPY,

992ACCOMPANIED BY THE FILING FEES PRESCRIBED BYLAW, WITH THE

1001DISTRICT COURT OF APPEAL, FIRST DISTRICT, 2000 DRAYTON DRIVE,

1010TALLAHASSEE, FLORIDA 32399-0950, OR IN THE DISTRICT COURT OF

1019APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES.

1028THE NOTICE OF APPEAL MUST BE FILED WITHIN THIRTY (30) DAYS OF

1040RENDITION OF THE ORDER TO BE REVIEWED.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 01/10/2019
Proceedings: Agency Final Order filed.
PDF:
Date: 01/10/2019
Proceedings: Agency Final Order filed.
PDF:
Date: 07/27/2018
Proceedings: Agency Final Order
PDF:
Date: 07/27/2018
Proceedings: Agency Final Order
PDF:
Date: 06/29/2018
Proceedings: Recommended Order
PDF:
Date: 06/29/2018
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 06/29/2018
Proceedings: Recommended Order (hearing held May 21, 2018). CASE CLOSED.
PDF:
Date: 06/11/2018
Proceedings: HTG Heron Estates Family, LLC's Proposed Recommended Order filed.
PDF:
Date: 06/11/2018
Proceedings: Florida Housing Finance Corporation's Proposed Recommended Order filed.
PDF:
Date: 06/11/2018
Proceedings: (Ocean Breeze East Apartments, LLC's Proposed) Recommended Order filed.
PDF:
Date: 06/11/2018
Proceedings: Respondent Ocean Breeze East Apartments, LLC's Notice of Filing Proposed Recommended Order filed.
PDF:
Date: 06/11/2018
Proceedings: Proposed Recommended Order of Petitioner, Channel Side Apartments, Ltd filed.
PDF:
Date: 05/30/2018
Proceedings: Notice of Filing Transcript.
PDF:
Date: 05/30/2018
Proceedings: Notice of Filing Transcript.
PDF:
Date: 05/22/2018
Proceedings: Second Corrected Notice of Amending Case Style.
PDF:
Date: 05/18/2018
Proceedings: Letter to Judge Desai from M. Christopher Bryant regarding enclosed thumb drive containing exhibits of Petitioner Channel Side Apartments Ltd. for Final Hearing filed (exhibits not available for viewing).
PDF:
Date: 05/18/2018
Proceedings: Joint Pre-hearing Stipulation filed.
PDF:
Date: 05/18/2018
Proceedings: Ocean Breeze exhibits filed (thumb drive; not available for viewing).
PDF:
Date: 05/18/2018
Proceedings: Letter to Judge Desai from Maureen McCarthy Daughton regarding enclosed thumb drive containing exhibits for Final Hearing filed.
PDF:
Date: 05/18/2018
Proceedings: Letter to Judge Desai from Betty Zachem regarding enclosed USB thumb drive containing Joint Exhibits for hearing filed.
PDF:
Date: 05/18/2018
Proceedings: Order Denying HTG Heron Estates Family LLC's Motion for Official Recognition.
PDF:
Date: 05/18/2018
Proceedings: Corrected Notice of Amending Case Style.
PDF:
Date: 05/18/2018
Proceedings: Notice of Amending Case Style.
PDF:
Date: 05/18/2018
Proceedings: HTG Heron Estates Family, LLC's Notice of Service of Answers to First Set of Interrogatories to Ocean Breeze East Apartments, LLC filed.
PDF:
Date: 05/17/2018
Proceedings: Order Severing Cases and Relinquishing Jurisdiction Over Case 18-2131BID (filed in DOAH Case No. 18-2131BID).
PDF:
Date: 05/16/2018
Proceedings: Ocean Breeze East Apartments, LLC's Response to Florida Housing Finance Corporation's Motion to Dismiss (filed in Case No. 18-002131BID).
PDF:
Date: 05/15/2018
Proceedings: Ocean Breeze East Apartments, LLC's Notice of Serving Verified Responses to Petitioner HTG Heron Estates Family, LLC's First Set of Interrogatories filed.
PDF:
Date: 05/15/2018
Proceedings: Ocean Breeze East Apartments, LLC's Response to Channel Side Apartments, Ltd's First Request for Production filed.
PDF:
Date: 05/15/2018
Proceedings: Channel Side Apartments Ltd?s Notice of Service of (unsigned) Answers to HTG Heron Estates Family, LLC?s First Set of Interrogatories filed.
PDF:
Date: 05/15/2018
Proceedings: Channel Side Apartments Ltd?s Notice of Service of (unsigned) Answers to Ocean Breeze East Apartments, LLC?s First Set of Interrogatories filed.
PDF:
Date: 05/15/2018
Proceedings: Petitioner Channel Side Apartments Ltd.?s Response to Ocean Breeze East Apartments, LLC?s First Request for Admissions filed.
PDF:
Date: 05/15/2018
Proceedings: HTG Heron Estates Family, LLC's Motion for Official Recognition filed.
PDF:
Date: 05/15/2018
Proceedings: HTG Heron Estates Family Responses to Ocean Breeze East Apartments, LLC First Request for Admissions filed.
PDF:
Date: 05/15/2018
Proceedings: HTG Heron Estates Family, LLC's Notice of Service of Answers to First Set of Interrogatories to Channel Side Apartments, LTD. filed.
PDF:
Date: 05/10/2018
Proceedings: HTG Heron Estates Family, LLC's Notice of Service of First Set of Interrogatories to Ocean breeze East Apartments, LLC filed.
PDF:
Date: 05/10/2018
Proceedings: Notice of Taking Deposition of Corporate Representative of Florida Housing Finance Corporation filed.
PDF:
Date: 05/10/2018
Proceedings: Motion to Dismiss Petitioner Ocean Breeze East Apartments, LLC filed.
PDF:
Date: 05/10/2018
Proceedings: Ocean Breeze East Apartments, LLC's First Request for Admissions to HTG Heron Estates Family, LLC filed.
PDF:
Date: 05/10/2018
Proceedings: Ocean Breeze East Apartments, LLC's First Request for Admissions to Channel Side Apartments, Ltd filed.
PDF:
Date: 05/10/2018
Proceedings: Ocean Breeze East Apartments, LLC's Notice of Service of First Set of Interrogatories to Channel Side Apartments, Ltd filed.
PDF:
Date: 05/10/2018
Proceedings: Ocean Breeze East Apartments, LLC's Notice of Service of First Set of Interrogatories to HTG Heron Estates Family, LLC filed.
PDF:
Date: 05/09/2018
Proceedings: Channel Side Apartments, Ltd.'s First Request for Production of Documents to Ocean Breeze East Apartments, LLC filed.
PDF:
Date: 05/09/2018
Proceedings: Notice of Withdrawal of Response to Florida Housing Finance Corporation's Motion to Dismiss filed.
PDF:
Date: 05/09/2018
Proceedings: Ocean Breeze East Apartments, LLC's Response to Florida Housing Finance Corporation's Motion to Dismiss filed.
PDF:
Date: 05/09/2018
Proceedings: Ocean Breeze East Apartments, LLC's Response to Petitioner HTG Heron Estates Family, LLC's First Requests for Admission filed.
PDF:
Date: 05/04/2018
Proceedings: HTG Heron Estates Family, LLC's Notice of Service of First Set of Interrogatories to Channel Side Apartments, LTD. filed.
Date: 05/03/2018
Proceedings: CASE STATUS: Status Conference Held.
PDF:
Date: 05/03/2018
Proceedings: Notice of Appearance (filed in Case No. 18-002132BID).
PDF:
Date: 05/02/2018
Proceedings: Notice of Telephonic Status Conference (status conference set for May 3, 2018; 2:00 p.m.).
PDF:
Date: 05/01/2018
Proceedings: Petitioners First Request for Admissions to Intervenor Ocean Breeze East Apartments, LLC filed.
PDF:
Date: 05/01/2018
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 05/01/2018
Proceedings: Notice of Hearing (hearing set for May 21, 2018; 9:00 a.m.; Tallahassee, FL).
PDF:
Date: 05/01/2018
Proceedings: Order of Consolidation (DOAH Case Nos. 18-2130BID, 18-2131BID, and 18-2132BID).
PDF:
Date: 04/27/2018
Proceedings: Notice of Appearance/Motion to Intervene filed.
PDF:
Date: 04/27/2018
Proceedings: Notice of Appearance filed.
PDF:
Date: 04/26/2018
Proceedings: Motion to Consolidate Cases filed.
PDF:
Date: 04/26/2018
Proceedings: Notice of Appearance (Betty Zachem).
PDF:
Date: 04/26/2018
Proceedings: Notice to All Bidders on RFA 2017-113 filed.
PDF:
Date: 04/26/2018
Proceedings: Formal Written Protest and Petition for Administrative Hearing filed.
PDF:
Date: 04/26/2018
Proceedings: Agency referral filed.
PDF:
Date: 01/10/2018
Proceedings: Florida Housing Finance Corporation's Exceptions to Recommended Order filed.

Case Information

Judge:
HETAL DESAI
Date Filed:
04/26/2018
Date Assignment:
05/01/2018
Last Docket Entry:
01/10/2019
Location:
Tallahassee, Florida
District:
Northern
Agency:
ADOPTED IN PART OR MODIFIED
Suffix:
BID
 

Counsels

Related Florida Statute(s) (8):