19-001302BID Htg Banyan, Llc vs. Florida Housing Finance Corporation Status: Closed Settled and/or Dismissed prior to entry of RO/FO on Tuesday, April 2, 2019.

v. FHFC Case No. 2019-016BP

FLORIDA HOUSING FINANCE CORPORATION,

Respondent,

and

HTG HERON ESTATES FAMILY, LLC,

Intervenor.

BLUE PINELLAS, LLC,

Petitioner, DOAH Case No. 19-1301BID

v. FHFC Case No. 2019-015BP

FLORIDA HOUSING FINANCE CORPORATION,

Respondent,

and

THE SHORES APARTMENTS, LTD.,

Intervenor.

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FINAL ORDER

This cause came before the Board of Directors of the Florida Housing Finance

Corporation ("Board") for consideration and final agency action on June 21, 2019.

Petitioners Durham Place, Ltd., ("Durham Place"), Amelia Court at Creative Village

-Phase II Partners, Ltd. ("Amelia Court"), HTG Banyan, LLC ("Banyan") and Blue

Pinellas, LLC ("Blue Pinellas"), and Intervenors Hawthorne Park, Ltd. ("Hawthorne

Park"), HTG Heron Estates Family, LLC, ("Heron") and The Shores Apartments,

Ltd. ("The Shores") were Applicants under Request for Applications 2018-112,

Housing Credit Financing for Affordable Housing Developments Located in

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

"RF A"). Durham Place Developer, LLC was the developer entity for Durham Place,

and Hawthorne Park Developer, LLC was the developer entity for Hawthorne Park.

The matter for consideration before this Board is a Recommended Order issued

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

Order.

On February 1, 2019, Florida Housing Finance Corporation ("Florida

Housing") posted notice of its intended decision to award funding to several

applicants, including Hawthorne Park as the sole applicant funded from Orange

County; HTG Heron Estates as the sole applicant funded from Palm Beach County;

and The Shores Apartments as the sole applicant funded from Pinellas County. The

Board found that all of the Petitioners and Intervenors satisfied all mandatory and

eligibility requirements for funding, but awarded funding based upon the ranking

criteria in the RF A. Petitioners timely filed their notices of intent to protest followed

by formal written protests. Intervenors each filed a Notice of Appearance. The

protests were referred to the Division of Administrative Hearings ("DOAH"). The

challenges by Amelia Court and Durham Place were consolidated, and the

challenges from Banyan and Heron were consolidated.

Banyan and Heron

Banyan alleged in its petition that Herons' application should have been

deemed ineligible for failure to demonstrate a Local Government Contribution.

During discovery prior to the hearing, Florida Housing concluded that Banyan'

allegations were correct, and agreed that Heron should not have been recommended

for funding.

Berkeley Landing, Ltd was an applicant that was deemed eligible but not

selected for funding. It filed a notice of intent to protest and formal written protest

challenging the eligibility of Heron, but filed a Notice of Voluntary Dismissal on

March 20, 2019. Berkeley Landing also stipulated that it should have been found

ineligible for funding.

On April 1, 2019, Banyan, Heron, and Florida Housing entered into a

Stipulation for Dismissal in which Heron agreed to the designation of its own

application as ineligible and waived any right to challenge that determination. As a

result, Banyan that same day filed a Notice of Voluntary Dismissal with the

Administrative Law Judge (ALJ). Copies of the Notice and Stipulation are attached

as Exhibits A and B.

Blue Pinellas and The Shores

Blue Pinellas alleged in its petition that The Shores' application should have

been denied points for proximity to a public school and a medical facility. During

discovery prior to the hearing, Florida Housing concluded that Blue Pinellas'

allegations were correct, and agreed that The Shores should not have been

recommended for funding. As a result, Florida Housing filed a Notice of Change of

Position with the ALJ.

On April 12, 2019, Blue Pinellas, The Shores, and Florida Housing entered

into a Stipulation for Dismissal in which The Shores agreed to the designation of its

own application as ineligible and waived any right to challenge that determination.

As a result, Blue Pinellas that same day filed a Notice of Voluntary Dismissal with

the ALJ. A copy of the Notice and Stipulation is attached as Exhibit C.

Amelia Court, Hawthorne Park, and Durham Place

Hawthorne Park included with its application two forms intended to

demonstrate that Orange County had committed to a Local Government

Contribution sufficient to demonstrate that Hawthorne Park would qualify for the

Local Government Area of Opportunity funding preference. Amelia Court alleged

that this contribution should have been found ineligible because a circuit court judge

had issued a temporary injunction preventing Orange County from providing the

contribution from its intended funding source.

Amelia Court included with its application one form intended to demonstrate

that the City of Orlando had committed to a Local Government Contribution

sufficient to demonstrate that Amelia Court would qualify for the Local Government

Area of Opportunity funding preference. Durham Place alleged that this

contribution should have been found ineligible because based on the identified

source of the funding. Durham Park also alleged that Amelia Court had not properly

disclosed the identities of all developers of the proposed development.

IfHawthorne Park had been deemed ineligible, then Amelia Court would have

been selected for funding instead. If both Hawthorne Park and Amelia Court been

deemed ineligible, Durham Place would have been selected for funding.

A hearing was conducted on April 15, 2019, before ALJ James B. Culpeper.

All parties filed Proposed Recommended Orders. After consideration of the

Proposed Recommended Orders, the oral and documentary evidence presented at

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

Order on June 7, 2019. The Recommended Order upheld Florida Housing's initial

determination and recommended that the petitions of Amelia Court and Durham

Place be dismissed and that Hawthorne Park should be awarded funding. A copy of

the Recommended Order is attached as Exhibit D.

On June 12, 2019, Amelia Court filed six Exceptions to the Recommended

Order. On June 17, Florida Housing and Hawthorne Park filed Responses to

Exceptions. Copies of the Exceptions and Responses are attached as Exhibits E, F

&G.

RULING ON EXCEPTION #1

1. Petitioner filed an Exception to Findings of Fact 33, 37 and 46. After

a review of the record, the Board finds that these Findings of Fact are supported by

competent substantial evidence, and the Board rejects Exception # 1.

RULING ON EXCEPTION #2

2. Petitioner filed an Exception to Conclusions of Law 83, 84, 85 and 86.

After a review of the record, the Board finds that these Conclusions of Law are

supported by competent substantial evidence and reasonable interpretations of

applicable law, and the Board rejects Exception #2. The Board further affirms that

in regards to Conclusion of Law 83-86, the ALJ did not conclude that an Application

including an improperly completed Contribution Form could still be found eligible

because any problems could be addressed during Credit Underwriting.

RULING ON EXCEPTION #3

3. Petitioner filed an Exception to Conclusions of Law 79 and 80. After

a review of the record, the Board finds that these Conclusions of Law are supported

by competent substantial evidence and reasonable interpretations of applicable law,

and the Board rejects Exception #3.

RULING ON EXCEPTION #4

4. Petitioner filed an Exception to Conclusions of Law 75 and 82. After

a review of the record, the Board finds that these Conclusions of Law are supported

by competent substantial evidence and reasonable interpretations of applicable law,

and the Board rejects Exception #4.

RULING ON EXCEPTION #5

5. Petitioner's fifth Exception challenges the ALJ' s ruling, though not

expressed in the Recommended Order, that Durham Place had standing to participate

in these proceedings as a party litigant. This issue was addressed in the ALJ' s Order

of April 11, 2019, in which Petitioner's Motions to Dismiss were denied.

§120.57(1)(1), Fla. State. (2018), provides that an agency may only reject or modify

Conclusions of Law over which the agency has substantive jurisdiction. As the

question of standing is a procedural issue not within Florida Housing's substantive

jurisdiction, the Board rejects Exception #5.

RULING ON EXCEPTION #6

6. Petitioner filed an Exception to Conclusions of Law 89 and 90. After

a review of the record, the Board finds that these Conclusions of Law are supported

by competent substantial evidence and reasonable interpretations of applicable law,

and the Board rejects Exception #6.

RULING ON THE RECOMMENDED ORDER

7. The Findings ofF act set forth in the Recommended Order are supported

by competent substantial evidence.

8. The Conclusions of Law set forth in the Recommended Order are

supported by competent substantial evidence and reasonable interpretations of

applicable law.

9. The Recommendation of the Recommended Order is supported by

competent substantial evidence and reasonable interpretations of applicable law.

ORDER

In accordance with the foregoing, it is hereby ORDERED:

10. The Findings of Fact of the Recommended Order are adopted as Florida

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

herein.

11. The Conclusions of Law of the Recommended Order are adopted as

Florida Housing's Conclusions ofLaw and incorporated by reference as though fully

set forth herein.

12. The Recommendation of the Recommended Order are adopted as

Florida Housing's Recommendation and incorporated by reference as though fully

set forth herein.

13. Hawthorne Park is selected for funding under RFA 2018-112.

14. The Petitions filed in this case are dismissed.

DONE and ORDERED this 21st day of June, 2019.

FLORIDA HOUSING FINANCE

CORPORATION

Copies to:

Hugh R. Brown, General Counsel

Chris McGuire, Assistant General Counsel

Florida Housing Finance Corporation

227 North Bronough Street, Suite 5000

Tallahassee, Florida 32301-1329

Craig D. Yarn

Amy Wells Brennan

Manson Bolves Donaldson & Yarn, P.A

106 East College A venue

Tallahassee, FL 32301

cvarn@mansonbo lves.com

abrennan@mansonbol ves . com

Douglas Manson

Manson Bolves Donaldson & Yarn, P .A.

109 North Brush Street, Suite 300

Tampa, FL 3 3 602

dmanson@mansonb olves.com

M. Christopher Bryant

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

P.O. Box 1110

Tallahassee, Florida 32302

Email: c b ry a n t@o hf c . com

NOTICE OF RIGHT TO JUDICIAL REVIEW

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER

IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68,

FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE

FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS

ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL

WITH THE AGENCY CLERK OF THE FLORIDA HOUSING FINANCE

CORPORATION, 227 NORTH BRONOUGH STREET, SUITE 5000,

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

ACCOMPANIED BY THE FILING FEES PRESCRIBED BYLAW, WITH THE

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

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

APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES.

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

RENDITION OF THE ORDER TO BE REVIEWED.