18-002967BID Sterling Terrace, Ltd And Sterling Terrace Developer, Llc vs. Florida Housing Finance Corporation Status: Closed Recommended Order on Thursday, August 23, 2018.

Summary: Petitioners proved that Respondent's intended award of proximity points to Intervenor was contrary to the specifications of the RFA, and was clearly erroneous.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MADISON OAKS, LLC ; AND AMERICAN

RESIDENTIAL COMMUNITIES, LLC,

Petitioners,

vs. Case No. 18 - 2966BID

FLORIDA HOUSING FINANCE

CORPORATION,

Respondent,

and

ARBORS AT HESTER LAKE, LLC;

COLONNADE PARK, LTD; HTG

CREEKSIDE, LLC; HTG SUNSET, LLC;

HARPERÓS POINTE, LP; AND BLUE

SUNBELT, LLC,

Intervenors.

_______________________________/

STERLING TERRACE, LTD ; AND

STERLING TERRACE DEVELOPER, LLC,

Petitioners,

vs. Case No. 18 - 2967BID

FLORIDA HOUSING FINANCE

CORPORATION,

Respondent,

and

ARBORS AT HESTER LAKE, LLC;

COLONNADE PARK, LTD; HARPERÓS

POINTE, LP; HTG CREEKSIDE, LLC;

HTG SUNSET, LLC; BLUE SUNBELT,

LLC; AND CLERMONT RIDGE, LTD,

Intervenors .

_______________________________/

RECOMMENDED ORDER

A duly - noticed final hearing was conducted in this case on

July 11, 2018, in Tallahassee, Florida, by Administrative Law

Judge Suzanne Van Wyk.

APPEARANCES

For Petitioners: Doug las Manson, Esquire

Manson Bolves Donaldson Varn, P.A.

109 North Brush Street, Suite 300

Tampa, F lorida 33602

Craig D. Varn, Esquire

Manson Bolves Donaldson Varn, P.A.

106 East College Avenue, Suite 820

Tallahassee, Florida 32301

Michael G eorge M aida, Esquire

Michael G. Maida P.A.

1709 Hermitage B oulevard , Suite 201

Tallahassee, Florida 32308.

For Respondent Florida Housing Finance Corporation:

Christopher Dale McGuire, Esquire

Florida Housing Finance Corporation

227 North Bro nough Street , Suite 5000

Tallahassee, Florida 32301

For Intervenors HTG Sunset, LLC ; and HTG Creekside, LLC:

Maureen McCarthy Daughton , Esquire

Maureen McCarthy Daughton, LLC

1725 Capital Circle N ortheast , Suite 304

Tallahassee, F lorid a 32308

STATEMENT OF THE ISSUE S

Whether Respondent, Florida Housing Finance CorporationÓs

(ÐFlorida HousingÑ), decision to award funding, pursuant to

Request for Applications 2017 - 111 (Ðthe RFAÑ), to HTG Sunset,

LLC (ÐSunset LakeÑ) ; HTG Creekside, LLC (Ð Oaks at CreeksideÑ) ;

and HarperÓs Pointe, LP (ÐHarperÓs PointeÑ), is contrary to its

governing statutes, rules, or the RFA specifications; and, if

so, whether the decision is clearly erroneous, contrary to

competition, arbitrary, or capricious.

PRELIMINARY STATEMENT

Florida Housing initially issued the RFA on October 6,

2017, and, after two modifications, established an application

deadline of December 20, 2017. Petitioners and Intervenors

submitted timely applications in response to the RFA. On May 4,

20 18, Florida Housing published ÐRFA 2017 - 111 Board Approved

Preliminary AwardsÑ (ÐCorporationÓs NoticeÑ) , tentatively

awarding funding to Sunset Lake, Oaks at Creekside, and HarperÓs

Pointe, among others.

On May 9, 2018, Petitioners , Madison Oaks, LLC (ÐMad ison

OaksÑ) ; and American Residential Communities, LLC (ÐAmerican

ResidentialÑ), filed their n otices of p rotest challenging the

selection of the applications set forth in the CorporationÓs

Notice. Petitioners timely filed a Formal Written Protest of

Award and Petition for Administrative Hearing, which was

forwarded to the Division of Administrative Hearings

(ÐDivisionÑ) on June 8, 2018, 1/ for assignment of an

Administrative Law Judge (ÐALJÑ) to conduct a final hearing.

The Petition was assigned D OAH Case No. 18 - 2966 BID .

On May 9, 2018, Petitioners , Sterling Terrace, LTD ; and

Sterling Terrace Developer, LLC (collectively, ÐSterling

TerraceÑ), filed their Notice of Protest challenging the

selection of the applications set forth in the CorporationÓs

Notice. Sterling Terrace timely filed a Formal Written Protest

of Award and Petition for Administrative Hearing, which was

forwarded to the Division on June 8, 2018, for assignment of an

ALJ to conduct a final hearing. The Petition was assigned DOAH

Case No. 18 - 2 967 BID . The cases were consolidated on June 14,

2018. 2/

Intervenors , HarperÓs Pointe, HTG Creekside , and HTG Sunset

gained Intervenor status on June 12 and 14, 2018, respectively. 3/

The final hearing was scheduled for July 11 and 12, 2018,

in Tallahassee, Florida, and commenced as scheduled.

The parties introduced Joint Exhibits J1 through J8, which

were admitted in evidence. The parties jointly offered the

testimony of Marisa Button, Florida HousingÓs Director of

Multifamily Allocations.

Madison Oaks int roduced P etitionerÓs Exhibits P1 , P2, P5

through P9, P9a, P10, P12 through P15, P19, P26 , and P27 , which

were admitted in evidence . Madison Oaks offered the testimony

of Richard Creech.

Intervenor Oaks at Creekside introduced IntervenorÓs

Exhibits IO2 and IO9, which were admitted in evidence.

Intervenor Sunset Lake introduced Exhibit IS6, which was

admitted in evidence. Intervenor Oaks at Creekside offered the

testimony of Matthew Rieger, CEO of Housing Trust Group, the

parent company of HTG Creekside.

I ntervenor HarperÓs Pointe i ntroduced IntervenorÓs

Exhibits IH1 through IH8 and IH10 through IH12 , which were

admitted in evidence , and introduced no additional witnesses.

A one - volume Transcript of the proceedings was filed on

July 18, 2018. The parties t imely filed Proposed Recommended

Orders (ÐPROsÑ) , which the undersigned has considered in

preparing this Recommended Order. On August 3, 2018,

Intervenors Clermont Ridge and Blue Sunbelt filed a Notice of

Joinder in portions of both Petitioners Ó and Respo ndentÓs PROs.

Except as otherwise provided, all references to the Florida

Statutes are to the 2017 version.

FINDING S OF FACT

1. Petitioner Madison Oaks is the Applicant entity for a

proposed affordable housing development to be located in Osceola

County, Florida.

2. Petitioner Sterling Terrace is the Applicant entity

for a proposed affordable housing development to be located in

Hernando County, Florida.

3. American Residential and Sterling Terrace are Developer

entities as defined by Florida Housing in Florida Administrative

Code Rule 67 - 48.002(28).

4. Sunset Lake, Oaks at Creekside, and HarperÓs Pointe

are all properly registered business entities in Florida in the

business of providing affordable housing.

5. Florida Housing is a public corporation or ganized

pursuant to c hapter 420, Part V, Florida Statutes, and, for the

purposes of these proceedings, an agency of the State of Florida.

6. Through the RFA, Florida Housing proposes to award an

estimated $10,978,942 in Housing Credit Financing for Afford able

Housing Developments located in medium and small counties

(Ðaffordable housing tax creditsÑ).

7. The RFA outlines a process for selecting developments

for funding. Section Five B. outlines the Selection Process, and

subsection 2. is the Application Sorting Order.

8. On November 5, 201 7, Florida Housing received

167 applications in response to the RFA. Madison Oaks, Sterling

Terrace, Sunset Lake, Oaks at Creekside, and HarperÓs Pointe

timely submitted applications seeking funding to assist in the

de velopment of multi - family housing in medium counties.

9. Florida Housing selected a review committee to score

all submitted applications. The review committee issued a

recommendation of preliminary rankings and allocations, and the

Board of Directors of Florida Housing approved these

recommendations on May 4, 2018. The Board found that the

parties to this proceeding all satisfied the mandatory and

eligibility requirements for funding, but awarded funding to

Intervenors based upon the ranking criteria in the RFA.

10. If Sterling Terrace can demonstrate that any two of

the three Intervenors should not have been recommended for

funding, it and Blue Sunbelt, LLC, will displace them as

applications selected for funding. If Madison Oaks can

demonstrate that a ll three Intervenors should not have been

recommended for funding, Sterling Terrace and Blue Sunbelt, LLC,

will displace them as applications selected for funding.

Sunset Lake

11. Section Four A.5.e.(3) of the RFA allows applicants

to receive up to four p oints for proximity to certain community

services. The RFA provides that applicants in medium counties

must receive at least seven points to be eligible for funding,

and at least nine points to be eligible for a Proximity Funding

Preference.

12. One of those community services is public schools,

which are defined as follows:

A public elementary, middle, junior and/or

high school, where the principal admission

criterion is the geographic proximity to the

school. This may include a charter school,

if the charter school is open to

appropriately aged children in the radius

area who apply, without additional

requirements for admissions such as passing

an entrance exam or audition, payment of

fees or tuition, or demographic diversity

considerations.

Addition ally, it must have been in existence

and available for use by the general public

as of the Application Deadline. (emphasis

added).

13. Sunset Lake identified the Jewett School of the Arts

(ÐJewett SchoolÑ) as a public school, received four points for

pr oximity, and as a result , was eligible for the Proximity

Funding Preference.

14. The Jewett School is a magnet school within the Polk

County Florida School District. The Jewett School was in

existence and available for use by the general public as of t he

a pplication d eadline.

15. Petitioners maintain the Jewett School does not meet

the definition of Ðpublic school. Ñ 4/ If the Jewett School does

not meet the definition of a Ðpublic school,Ñ Sunset Lake would

not be entitled to four points for proximity to community

services. As a result, it would have a total of seven points

for proximity, and while it would remain eligible, it would lose

the Proximity Funding Preference. As a result, Sunset Lake

would not have been ranked as highly and would not have been

recommended for funding.

16. The Jewett School does not meet the RFA definition of

Ðpublic schoolÑ because geographic proximity to the school is

not the principal admission criterion. Although a student must

live in Polk County SchoolsÓ Magnet Zone B to apply for

admission to the Jewett School, the principal admission criteria

is a random lottery process. Geographic location within the

Polk County magnet school zones is a threshold issue which

qualifies a student to apply for admission. However, th e magnet

school decision - making process entails a subsequent elaborate

demographic diversity analysis, sorting based on the outcome of

that analysis, and, ultimately, a random lottery drawing which

determines final admission.

17. The Jewett School admissi on process is contrary to

Florida HousingÓs primary purpose of awarding proximity points

to proposed housing developments -- to ensure the intended

residents can, in fact, use the services in proximity to the

development.

18. Sunset Lake is not entitled to four points for

proximity to community services and should not be awarded

Proximity Funding Preference. As a result, Sunset Lake should

not have been ranked as highly and should not have been

recommended for funding.

Oaks at Creekside

19. Oaks at Creek side identified the Manatee Charter

School (ÐManatee SchoolÑ) as a public school, received

three points for proximity, and, as a result, was eligible for

funding but not for the Proximity Funding Preference. The

Manatee School is a charter school located in Bradenton,

Florida.

20. The Manatee School was in existence and available for

use by the general public as of the a pplication deadline.

21. Petitioners maintain the Manatee School does not meet

the definition of a Ðpublic school.Ñ 5/ If the Manatee Ch arter

School does not meet that definition, then Oaks at Creekside is

not entitled to three points for proximity. As a result, it

would have only six total proximity points, and would not be

eligible for funding.

22. Florida Housing maintains that a char ter school must

meet both parts of the definition of a public school in order

for a proposed development to receive proximity points based on

proximity to that school. That means a charter school must

(1) use geographic proximity as the primary admission criteria,

and (2) be Ðopen to appropriately aged children in the radius

area who apply, without additional requirements for admissions

such as passing an entrance exam or audition, payment of fees or

tuition, or demographic diversity considerations.Ñ

23. Geographic proximity is not the primary admission

criterion for the Manatee School. On the contrary, the Manatee

School is open for admission regardless of geographic proximity

thereto.

24. The Manatee School operates pursuant to a contract

with the Man atee County School Board, and is Ðopen to any

student residing in the Manatee County School District, students

covered in an interdistrict agreement and students as provided

for in Section 1002.33(10), Florida Statutes (2010).Ñ 6/

25. The Manatee School op erates a Ðcontrolled open

enrollmentÑ process. The application period opens in early

January and closes at the end of February, and the School

accepts students from any school district in the state whose

parent or guardian can provide transportation to th e school, if

the school has not reached capacity. This process is sometimes

referred to as Ðschool choiceÑ and is mandatory pursuant to

section 1002.31, Fl orida Stat utes. 7/

26. The Manatee School has enrolled students throughout

Manatee County, as well a s from adjoining Sarasota County.

27. Historically, the Manatee School has not reached

capacity. Once the School reaches capacity in any one grade

level or class, students will be selected by a system - generated,

random lottery process.

28. The term Ðrad ius areaÑ is not defined in the RFA or

in Florida HousingÓs rules. Florida Housing introduced no

evidence regarding the meaning of the term Ðradius areaÑ within

the definition of Ðp ublic s chool. Ñ When questioned about the

meaning, Marisa Button, Florida HousingÓs Director of

Multifamily Allocations, stated she did not know, but Ð[I]

assume it means if the charter school has a radius area. I

donÓt know.Ñ 8/

29. The term ÐradiusÑ is defined as Ða bounded or

circumscribed area.Ñ Merriam - Webster Online , www.merriam -

webster.com (2018).

30. The bounded or circumscribed area for admission to

the Manatee School is the Manatee County School District,

pursuant to its contract. The Manatee School is open to

appropria tely - aged children in the radius area who apply.

31. The Manatee School does not apply additional

requirements for admission, such as passing an entrance exam or

audition, payment of fees or tuition, or demographic diversity

considerations. 9/

32. The Man atee School does provide admissions

preferences to students of active duty military personnel,

siblings of a student already enrolled, siblings of an accepted

applicant, children of an employee of the School, and children

of a charter board member. Each o f these preferences is

authorized pursuant to section 1002.33(10)(d).

33. The preferences are not additional requirements for

admission to the Manatee School.

34. The Manatee School meets the second part of the

definition of Ðpublic schoolÑ for purpose o f qualifying Oaks at

Creekside to receive proximity points pursuant to the RFA.

HarperÓs Pointe

35. Madison Oaks argues HarperÓs Pointe is ineligible for

funding pursuant to the RFA because the HarperÓs Pointe

development site is a Ðscattered site,Ñ and H arperÓs Pointe did

not identify the site as such and comply with the RFA requirement

to designate latitude and longitude coordinates for both sites. 10/

36. Rule 67 - 48.002(105) defines Ð s cattered s itesÑ as

follows:

(105) ÐScattered sites,Ñ as applied to a

single Development, means a Development site

that, when taken as a whole, is comprised of

real property that is not contiguous (each

such non - contiguous site within a Scattered

Site Development, is considered to be a

ÐScattered SiteÑ). For purposes of th is

definition ÐcontiguousÑ means touching at a

point or along a boundary. Real property is

contiguous if the only intervening real

property interest is an easement, provided

the easement is not a roadway or street.

All of the Scattered Sites must be loca ted

in the same county.

37. Section Four A.5.c. of the RFA states: ÐThe Applicant

must state whether the Development consists of Scattered Sites.Ñ

38. Section Four A.5.d. of the RFA requires that

applicants provide latitude and longitude coordinates fo r the

Development Location Point and any scattered sites.

39. Section Five A.1. provides that Ðonly items that meet

all of the following Eligibility Items will be eligible for

funding and consideration for funding selection.Ñ Among the

items listed are Ð Question whether a Scattered Sites Development

answeredÑ and ÐLatitude and Longitude Coordinates for any

Scattered Site provided, if applicable.Ñ

40. HarperÓs Pointe did not state in its application that

the development consists of s cattered s ites, and di d not provide

separate latitude and longitude coordinates for s cattered s ites.

41. HarperÓs PointeÓs proposed development site, as

identified in its Site Control Documents, consists of land

located within a platted tract of property. The plat recorded

in Alachua County indicates that the site is bisected by a

platted 50 - foot street easement running east/west through the

property.

42. The parties stipulated the street has never been

constructed.

43. Although portions of the east/west easement area show

signs of having been improved at some time in the past, the

easement area has never been paved, and is currently impassible

by car or truck due to vegetation in the easement area.

44. Even if the easement area were improved, there is no

roadway to the west of the property to which it would connect. A

fence runs along the property line and the property beyond the

fence is platted residential lots accessed by Northeast

22nd Street.

45. An existing roadway, Northeast 23rd Avenue, terminates

at the east ern property line just south of the east/west

easement. The City has placed barriers at that property line

prohibiting access to the property from Northeast 23rd Avenue.

46. If the platted street is a Ðroadway or streetÑ as

those terms are used in rule 6 7 - 48.002(105), the site would meet

the definition of a Ðscattered site.Ñ

47. Ms. Button testified on behalf of Florida Housing that

the property meets the definition of a scattered site because

Ðthere is an easement that is a road or a streetÑ that bisect s

the property. Ms. Button first testified that Florida HousingÓs

determination did not depend on whether a roadway or street is

actually constructed within the easement, but rather, Ðit goes

back to the easement, whether there is an easement that is a

ro adway or street.Ñ

48. Ms. ButtonÓs testimony seemed logical enough. If the

easement were a street easement, access between the northern and

southern portions of the development site would be constrained.

By contrast, if the easement were a conservation or utility

easement, there would be no impairment of access between portions

of the development site.

49. However, on cross examination, Ms. Button testified

that, in making the determination whether an easement for a road

or street existed, Florida Housi ng would consider a number of

other factors, including whether a roadway was actually

constructed within the easement, whether there were physical

obstructions preventing access to the ÐprospectiveÑ roadway or

street, and whether the public had a right to use the

ÐprospectiveÑ roadway or street.

50. Ms. Button did not testify with specificity what

factors she considered in making the determination that the

easement, in this case, was Ða roadway or street.Ñ Ms. ButtonÓs

direct - examination testimony was con clusory: ÐBased on the

documentation we received, there is an easement that is a road or

street.Ñ On direct examination, her determination appeared to be

based solely on the plat designation of a street easement. On

cross - examination, however, Ms. Butto n testified that Ða street

designated . . . on a plat could be evidence of the existence of

a scattered site.Ñ (emphasis added). Moreover, Ms. Button

testified that Florida Housing could consider whether a roadway

or street was actually constructed, whet her there were

obstructions to its use, and whether the public had a right to

use the purported roadway.

51. Ms. ButtonÓs testimony that the HarperÓs Point

development site was a scattered site was equivocal, and the

undersigned does not accept it as eith er reliable or

persuasive. 11/

52. There is no physical roadway or street constructed

within the easement. While there is some evidence that some

portions of the easement area were improved in the past, said

improvement was at least 25 years old. The cur rent condition of

the property is fairly heavily wooded. To the extent a ÐpathÑ

exists on the property, it is not passable by a standard four -

wheeled vehicle. Moreover, there are physical barriers

preventing vehicular access to the property from the adjo ining

street to the east. There is no access to the property from the

residential development to the west of the property.

53. The re is not an improved area preventing access from

the northern to the southern portion of the development site.

There is no structure built within the easement which would have

to be demolished in order to build the project on the

development site as a single parcel.

54. Based on the entirety of the reliable evidence, the

HarperÓs Pointe development site is not a Ðscattered s iteÑ as

defined in the RFA.

55. Madison Oaks failed to prove that Florida HousingÓs

initial determination to award tax credits to HarperÓs Pointe,

pursuant to the RFA, was incorrect.

CONCLUSIONS OF LAW

56. The Division has jurisdiction over the subject m atter

and the parties to this action. §§ 120.569 and 120.57(3), Fla.

Stat.

57. Petitioners have the burden to prove, by a

preponderance of the evidence, that Florida HousingÓs intended

award of housing tax credits to HTG Sunset, HTG Creekside, and

Harp erÓs Pointe is contrary to Florida HousingÓs governing

statutes, rules or policies , or the RFA specifications.

§ 120.57(3)(f), Fla. Stat.

58. Although section 120.57(3) provides that this is a de

novo proceeding, it is not a Ðde novoÑ proceeding in the

t raditional sense. See State Contracting & EngÓg Corp. v. DepÓt

of Transp. , 709 So. 2d 607, 609 (Fla. 1st DCA 1998). That is,

this is not a forward - looking proceeding to formulate agency

action, and the Division may not substitute its judgment for

that of Florida Housing. See Intercont inenta l Props., Inc. v.

State DepÓt of HRS , 606 So. 2d 380, 386 (Fla. 3d DCA 1992); R.N.

Expertise, Inc. v. Miami Î Dade Cnty. Sch. Bd. , Case No. 01 -

2663BID (Fla. DOAH Feb. 4, 2002; MDCSB Mar. 13, 2002)

(explaining the Divisio nÓs role in procurement - protest

proceedings). Instead, the Division engages in a form of

Ðinter - agency reviewÑ in which the ALJ makes findings of fact

about the action already taken by the Department. See State

Contracting , 709 So. 2d at 609. The Divisi on does not evaluate

the DepartmentÓs decision anew; instead the Division looks to

see if the Department followed its governing statutes, its

rules, and the RFA specifications during the procurement

process. See R.N. Expertise , Case No. 01 - 2663BID , RO at 71 .

59. Agencies enjoy wide discretion when it comes to

soliciting and accepting proposals, and an agency's decision,

when based upon an honest exercise of such discretion, will not

be set aside even where it may appear erroneous or if reasonable

persons may disagree. BaxterÓs Asphalt & Concrete, Inc. v.

DepÓt of Transp. , 475 So. 2d 1284, 1287 (Fla. 1st DCA 1985);

Capeletti Bros., Inc. v. State DepÓt of Gen. Servs. , 432 So. 2d

1359, 1363 (Fla. 1st DCA 1983). Section 120.57(3)(f)

establishes the standard of proof: whether the proposed action

is clearly erroneous, contrary to competition, arbitrary , or

capricious.

60. A decision is considered to be clearly erroneous when,

although there is evidence to support it, after review of the

entire record, the tri bunal is left with the definite and firm

conviction that a mistake has been committed. U.S. v. U.S.

Gypsum Co. , 333 U.S. 354, 395 (1948). An agency action is

capricious if the agency takes the action without thought or

reason, or irrationally. Agency ac tion is arbitrary if it is

not supported by facts or logic. See Agrico Chem. Co. v. State

DepÓt of Envtl. Reg. , 365 So. 2d 759, 763 (Fla. 1st DCA 1978).

An agency decision is contrary to competition if it unreasonably

interferes with the objectives of co mpetitive bidding. See

Wester v. Belote , 138 So. 721, 723 - 24 (1931).

Sunset Lake

61. Florida HousingÓs init ial determination to award

four proximity points to Sunset Lake for its proximity to the

Jewett School was clearly erroneous. 12/ The Jewett School does

not meet the RFA definition of a public school and is not a

community service for which Sunset Lake should have received

proximity points.

62. Petitioner Madison Oaks proved that Florida HousingÓs

initial decision to award affordable housing tax cre dits to

Sunset Lake was contrary to the RFA, and contrary to competition.

Sunset Lake should have received a total of seven proximity

points, and should not have been recommended for funding.

Oaks at Creekside

63. Florida HousingÓs init ial determination to award

four proximity points to Oaks at Creekside for its proximity to

the Manatee School was neither clearly erroneous, contrary to

competition, arbitrary, nor capricious. The Manatee School is a

public school as defined in the RFA.

64. As noted in Florida HousingÓs Notice of Change of

Position, filed July 6, 2018, Florida Housing determined after

discovery depositions that the Manatee School was not a public

school for purposes of awarding proximity points to Oaks at

Creekside. However, it is Flori da HousingÓs initial decision to

award funding to Oaks at Creekside, not its subsequent litigation

position, that is at issue in this proceeding. 13/ See Blue

Broadway, LLC v. Fla. Hous. Fin. Corp. , Case No. 17 - 3273 (Fla.

DOAH Aug. 29, 2017; FHFC Sept. 22, 2017)(ÐIn this proceeding, the

undersigned continues to review the correctness of RespondentÓs

initial decision which was to find IntervenorÓs application to be

eligible.Ñ).

65. Petitioner Sterling Terrace failed to prove that

Florida HousingÓs initial d etermination to award affordable

housing tax credits to Oaks at Creekside was contrary to the RFA.

HarperÓs Pointe

66. Florida Housing initially determined HarperÓs Pointe

was eligible for an award of affordable housing tax credits

pursuant to the RFA.

67 . Petitioner Madison Oaks failed to prove Florida

HousingÓs intended award of housing tax credits to HarperÓs

Pointe was contrary to Florida HousingÓs statutes, rules, or the

terms of the RFA, clearly erroneous, contrary to competition, or

arbitrary or ca pricious.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that Florida Housing issue a final order

finding (1) that its initial scoring decision regarding Sunset

Lake was erroneous, and awarding funding to t he applicant with

the next highest lottery number ; and (2) awarding funding to

Oaks at Creekside and HarperÓs Pointe, pursuant to its initial

scoring decision.

DONE AND ENTERED this 2 3r d day of August , 2018 , in

Tallahassee, Leon County, Florida.

S

SUZANNE VAN WYK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with th e Clerk of the

Division of Administrative Hearings

this 2 3r d day of August , 2018 .

ENDNOTE S

1/ Madison Oaks filed a First and Second Amended Formal Written

Protest of Award and Petition for Administrative Hearing on

June 11, 2018.

2/ The cases were ini tially consolidated with a third

challenge filed by Clermont Ridge, LTD ( DOAH Case No. 18 -

2968 BID ), which was resolved and voluntarily dismissed on

June 21, 2018.

3/ Arbours at Hester Lake, LLC ; Collonade Park, LTD ; Blue

Sunbelt, LLC ; and Clermont Ridge, LLC, initially gained

Intervenor status in these proceedings as well. However, the

issues initiating intervention by those parties were resolved

prior to the final hearing and those parties did not appear at

the final hearing.

4/ Petitioners withdrew f rom consideration all other issues

against the application of Sunset Lake in their Third Amended

Formal Written P rotest of Award and Petition for Administrative

Hearing.

5/ Petitioners withdrew from consideration all other issues

against the application of Oaks at Creekside in their

Third Amended Formal Written Protest of Award and Petition for

Administrative Hearing.

6/ The 2010 version of the statute required Ða charter school

[to be] open to any student covered in an interdistrict

agreement or residi ng in the school district in which the

charter school is located[.]Ñ

7/ Section 1002.31(2)(a) provides, in pertinent part:

[E]ach district school board or charter

school shall allow a parent from any school

district in the state whose child is not

subje ct to a current expulsion or suspension

to enroll his or her child in and transport

his or her child to any public school,

including charter schools, that has not

reached capacity in the district, subject to

the ma ximum class size pursuant to

s. 1003.03 an d se. 1, Art. IX of the State

Constitution. The school district or

charter school shall accept the student,

pursuant to that school districtÓs or

charter schoolÓs controlled open enrollment

process, and report the student for purposes

of the school distri ctÓs or charter schoolÓs

funding pursuant to the Florida Education

Finance Program.

8/ The parties also introduced the deposition testimony of

Marisol Quinones, the Manatee School Enrollment Administrator.

No party asked Ms. Quinones to identify the radi us area of the

school.

9/ The Charter Schools USA policy provides, Ðthe School will

endeavor to achieve racial/ethnic balance,Ñ but does not award

any admission preference based on race or ethnicity. According

to the policy, the School ÐendeavorsÑ to ac hieve the balance

through a marketing plan directed at Ðunderrepresented

populations.Ñ

10/ Madison Oaks initially asserted a challenge to the

qualification of the Medical Facility identified in the

HarperÓs Pointe application. Madison Oaks is no longer

pursuing its challenge to the qualification of the Medical

Facility identified in the HarperÓs Pointe application.

11/ As of the date of the prehearing stipulation, Florida

HousingÓs initial position -- that HarperÓs Pointe was eligible

for funding -- had no t changed. During opening statements,

counsel for Florida Housing stated its position as Ð[I] guess

our position at the moment is it looks like a street, it must

be a street. . . . I am sure we are going to hear argument on

all sides . . . and when we do , weÓll just have to come up with

our ultimate position on that[.]Ñ

12/ Florida Housing conceded this point when it filed a Notice

of Change of Position on July 6, 2018.

13/ However, the undersigned is compelled to comment on Florida

HousingÓs position , taken at final hearing, that the Manatee

School does not meet the RFA definition of Ðpublic schoolÑ

because geographic proximity is not the primary admission

criteria. That position is untenable. Florida Housing is

required to interpret the RFA consist ent with its plain and

unambiguous language. See Brownville Manor, LP v. Redding Dev.

Partners, LLC , 224 So. 3d 891 (Fla. 1st DCA 2017)(citing

Creative Choice XXV, Ltd. v . Fla. Hous. Fin. Corp. , 991 So. 2d

899, 901 (Fla. 1st DCA 2008). Florida HousingÓs interpretation

of the definition to require compliance with both the first and

second sentences of the definition is contrary to the plain

language of the RFA.

The first sentence clearly and unequivocally refers to the

admission criteria of traditional public schools, where

admission is mandatory for all children within a defined

geographic proximity to the school, i.e., the school attendance

zone. The second sentence applies specifically to charter

schools, which are non - traditional public schools in F lorida.

§ 1002.33(1), Fla. Stat. As it pertains to charter schools, the

definition requires only that the school be Ðopen to

appropriately aged children in the radius area who applyÑ and

not impose additional admission criteria. Requiring a charter

scho ol to meet both parts of the definition of public school is

contrary to the plain language of the RFA. While the

undersigned is cognizant of the principle of deference to agency

interpretations, Ðjudicial adherence to the agencyÓs view is not

demanded whe n it is contrary to the [RFAÓs] plain meaning.Ñ

Werner v. DepÓt of Ins. & Treasurer , 689 So. 2d 1211 (Fla. 1st

DCA 1997). Within the RFA definition of public school, the

second sentence is specific to charter schools and should be

applied to Oaks at Cree ksideÓs application.

Further, Florida HousingÓs interpretation would effectively

prohibit any charter school from qualifying as a public school

under the RFA. Through 2016, charter schools were required to

be open to any student residing in the school di strict in which

the charter school is located. § 1002.33(10), Fla. Stat.

(2016). Under current law, a charter school Ðmay be exempt from

[Public School Parental Choice] as long as it is open to any

student residing in the school district in which the cha rter

school is located.Ñ £ 1002.33(10)(2018). A charter school

cannot be both open to any student within the school district

and use geographic proximity as the primary admission criteria.

COPIES FURNISHED:

Sarah Pape, Esquire

Zimmerman, Kiser & Sutcl iffe, P.A.

315 East Robinson Street, Suite 600

Post Office Box 3000 (32802)

Orlando, Florida 32801

(eServed)

J. Timothy Schulte, Esquire

Zimmerman, Kiser & Sutcliffe, P.A.

315 East Robinson Street

Post Office Box 3000 (32802)

Orlando, Florida 32801

(eSe rved)

Christopher Dale McGuire, Esquire

Florida Housing Finance Corporation

Suite 5000

227 North Bronough Street

Tallahassee, Florida 32301

(eServed)

Lawrence E. Sellers, Jr., Esquire

Holland & Knight, LLP

Suite 600

315 South Calhoun Street

Tallahassee , Florida 32301

(eServed)

Maureen McCarthy Daughton, Esquire

Maureen McCarthy Daughton, LLC

Suite 304

1725 Capital Circle Northeast

Tallahassee, Florida 32308

(eServed)

Douglas Ma n son, Esquire

Manson Bolves Donaldson Varn, P.A.

Suite 300

109 North Brus h Street

Tampa, Florida 33602

(eServed)

Craig D. Varn, Esquire

Manson Bolves Donaldson Varn, P.A.

Suite 820

106 East College Avenue

Tallahassee, Florida 32301

(eServed)

Amy Wells Brennan, Esquire

Manson Bolves Donaldson Varn, P.A.

Suite 300

109 North B rush Street

Tampa, Florida 33602

(eServed)

Michael George Maida, Esquire

Michael G. Maida, P.A.

Suite 201

1709 Hermitage Boulevard

Tallahassee, Florida 32308

(eServed)

Hugh R. Brown, General Counsel

Florida Housing Finance Corporation

Suite 5000

2 27 North Bronough Street

Tallahassee, Florida 32301 - 1329

(eServed)

Michael J. Glazer, Esquire

Ausley McMullen

123 South Calhoun Street

Post Office Box 391

Tallahassee, Florida 32302

(eServed)

Donna Elizabeth Blanton, Esquire

Radey Law Firm, P.A.

Suite 200

301 South Bronough Street

Tallahassee, Florida 32301

(eServed)

Anthony L. Bajoczky, Jr., Esquire

Ausley & McMullen

Post Office Box 391

Tallahassee, Florida 32302

(eServed)

David J. Weiss

Ausley McMullen

Post Office Box 391

Tallahassee, Florida 323 01

(eServed)

Michael P. Donaldson, Esquire

Carlton Fields Jorden Burt, P.A.

215 South Monroe Street, Suite 500

Post Office Drawer 190

Tallahassee, Florida 32302 - 0190

(eServed)

M. Christopher Bryant, Esquire

Oertel, Fernandez, Bryant & Atkinson, P.A.

Pos t Office Box 1110

Tallahassee, Florida 32302 - 1110

(eServed)

Brittany Adams Long, Esquire

Radey Law Firm, P.A.

Suite 200

301 South Bronough Street

Tallahassee, Florida 32301

(eServed)

Tiffany A. Roddenberry, Esquire

Holland & Knight, LLP

Suite 600

315 S outh Calhoun Street

Tallahassee, Florida 32301

(eServed)

Corporation Clerk

Florida Housing Finance Corporation

Suite 5000

227 North Bronough Street

Tallahassee, Florida 32301 - 1329

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the r ight to submit written exceptions within

1 0 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.