20-001766BID Bdg Parkwood Lofts, Lp vs. Christian Manor Restoration, Llc, And Florida Housing Finance Corporation Status: Closed Recommended Order on Friday, June 19, 2020.

Summary: FHFC's determination of eligibility and intended award were consistent with statutes, rules, and the RFA, and not clearly erroneous, contrary to competition, arbitrary or capricious. Any mistakes in geographic coordinates were minor irregularities.

STATEMENT OF THE ISSUES

The issues presented for determination are whether Florida Housing

Finance Corporation ’ s (FHFC) determinations regarding the appli cations

responding to Request for Applications 2019 - 116 SAIL Financing of

Affordable Multifamily Housing Development to Be Used In Conjunction

With Tax - Exempt Bond Financing And Non - Competitive Housing Credits

(the RFA), were clearly erroneous, contrary to competition, arbitrary , or

capricious; and whether the award to Respondent Christian Manor

Restoration, LLC (Christian Manor) , is contrary to governing statutes, rules,

or the solicitation specifications of the RFA.

PRELIMINARY STATEMENT

FHFC issued the final RFA on December 20, 2019 . In response , FHFC

received 65 applications, including applications from Petitioner , BDG

Parkwood L ofts, LP (Parkwood), Christian Manor, and Waterview Preserve,

LLC (Waterview).

On March 6, 2020, FHFC posted notice of its in tended decision to award

funding and the rankings of the applications on its website. Out of the

65 applications submitted, 13 were awarded fundi ng, including Christian

Manor. Waterview was not awarded funding, but was ranked above

Petitioner, but below Ch ristian Manor.

On March 11, 2020, Parkwood and Waterview filed Notices to Protest. On

March 23, 2020, both filed Petitions for Administrative Hearings challenging

the award to Christian Manor . Parkwood ’ s Petition also challenged the

eligibility and ranki ng of Waterview because Parkwood needed to prevail

against Waterview to move into the funded application range.

On April 9, 2020, FHFC referred all the protests to the RFA awards to

DOAH pur suant to section 120.57(3)(d)3. , Florida Statutes (2019). 1 These

included the challenges by Parkwood and Waterview. The cases were

assigned to the undersigned Administrative Law Judge (ALJ) who

consolidated them with the current action . Specifically, this case, Case No.

20 - 1766 BID, was consolidated with Metro Grande Ass ociates I, LTD v.

Florida Hous ing Fi nance Corporation , Case No. 20 - 1767 BID (Metro Grande

Challenge) and Waterview Preserve, LLC v. Florida Hous ing Fin ance

Corporation , Case No. 20 - 1768 BID (Waterview challenge). 2

On April 13, 2020, the undersigned held a s cheduling conference by

telephone with all the parties in the consolidated cases. Due to the ongoing

COVID - 19 pandemic, the parties agreed that the final hearing would be

conducted via Zoom .

At the final hearing, Joint Exhibits 1 - 7 were admitted into ev idence.

Petitioner ’ s Exhibits P6, P10 t hrough P16, P19, and P29 were admitted into

evidence; other exhibits were offered by Petitioner , but not admitted due to

FHFC ’ s objections (see discussion below). Petitioner als o presented the

testimony of Chris Savin o via deposition transcript (Ex. P 19). Christian

Manor introduced Exhibits R1 through R3 and called no witnesses. FHFC

introduced no additional exhibits and presented the testimony of Marisa

Button, FHFC ’ s Director of Multifamily Allocation.

The parties entered into and submitted a Joint Prehearing Stipulation

that included 30 paragraphs of facts describing the RFA, the scoring and

ranking process, the parties ’ RFA applications, and issues raised in this

1 All statutory and administrative rule refe rences are to the 2019 versions of the Florida

Statutes and Florida Administrative Code unless otherwise stated.

2 The Metro Grande c hallenge was severed and dismissed on April 24, 2020; and t he

Waterview challenge was severe d and dismissed on May 4, 202 0.

proceeding. The stipulated facts , where appropriate , have been incorporated

into this Recommended Order. The T ranscript of the hearing was filed on

May 19, 2020. All parties timely submitted Proposed Recommended Orders

(PRO s ) on May 29, 2020. The parties ’ PROs have been duly considered in the

preparation o f this Recommended Order.

Inadmissibility of Parkwood ’ s Exhibits

At the hearing , Petitioner offered Exhibits P2 through P5, P7, and P8,

which are the City of Orlando 's (City) zoning ordinances, regulations , and

forms; correspondence regarding ano ther pro posed project from 2009; and a

federal reg ulation on property standards. Additionally, proposed Exhibit P20

is the deposition transcript of Richard Carr (an expert witness) who testified

about the proposed structure in the Waterview application and the fea sibility

of Waterview ’ s proposal given assumed height and zoning restrictions.

FHFC objected to these exhibits on the basis of relevancy and the

undersigned reserved ruling . 3 The objectionable exhibits, including the

deposition of Mr. Carr were offered by Petitioner to establish that the

proposed Waterview application is incomplete and/or inaccurate because the proposed project would violate height restrictions in the local zoning code; and it would be ineligible for certain funds because the proposed proj ect

woul d violate wetland regulations. FHFC argues Waterview submitted the

appropriate certification that the project satisfies the local zoning regulations, and the applicants were not required to show they were eligible

for the special funding in order t o be found eligible. Therefore evidence

regarding these issues is irrelevant.

As explained in the Findings of Fact, as part of its application Waterview

submitted an FHFC form titled “ Local Government Verifi cation That

3 Respondent Christian Manor did not join in the objection.

Development Is Consistent with Zonin g and Land U se Regulations ” (Zoning

Form). Waterview ’ s Zoning Form was executed by a Pl anning Official with

the City. That form states in relevant part:

The undersigned … confirms that, as of the date

that this form was signed, the above referenced

[Water view Preserve] Development ’ s proposed

units, density, and intended use are consistent with

current land use regulations and zoning

designations.

* * *

I certify that the City of Orlando has vested in me the authority to verify consistency with l ocal land

use regulations and zoning designation.

Neither the undersigned nor FHFC has the authority (or expertise) to

make an independent evaluation as to whether a local government has acted

in accordance with its own or dinances or procedures, nor is th is required.

S ee Brownsville Manor, LP v. Redding Dev. Partners, LLC , and Fla. Hous.

Fin. Corp. , 224 So. 3d 891, 894 (Fla. 1st DCA 2017) (finding Brownsville

eligible because it complied with the RFA requirements at the application

stage b y submitting the required forms and providing assurances it intended

to comply w ith all of the solicitation terms); s ee also Houston Street Manor LP

v. Fla. Hous . Fin . Corp. , Case No. 15 - 3302 BID , 2015 WL 5008308 ( Fla.

DOAH Aug. 18, 2015 ; FHFC Sept. 21, 2015).

In Houston Manor , the ALJ allowed FHFC to defer to the local

government ’ s verification of a site plan approval submitted as part of a

R equest for Applications and explained:

51. A good place to start in evaluating [the

challenger] Pine Grove ’ s position is with a l ook at

the site - plan status form ’ s purpose. It is clear from

the language of the form that what FHFC wants, in

a nutshell, is an authoritative statement from the

local government advising that the local

government either has approved, or is currently

unawa re of grounds for disapproving, the proposed

development ’ s site plan. The relevance of this

statement lies not so much in its being correct, per

se, but in the fact that it was made by a person in

authority whose word carries the weight of a

governmental p ronouncement. Put another way,

the statement is correct if made by an official with

the authority to utter the statement on behalf of

the local government; it is a verbal act, a kind of

approval in itself.

52. FHFC might, of course, deem a fully executed

site - plan status form nonresponsive for a number of

reasons. If it were determined that the person who

signed the form lacked the requisite authority to

speak for the government; if the statement were

tainted by fraud, illegality, or corruption; or if the

signatory withdrew the certification, for example,

FHFC likely would reject the certification. No such

grounds were established in this case, or anything similar.

53. Instead, Pine Grove contends that Mr. Huxford

simply erred, that he should not have si gned the

Local Government Verification of Status of Site

Plan Approval. Pine Grove makes a reasonable, or at least plausible, case to this effect. The fatal flaw in Pine Grove ’ s argument, however, is that the

decision whether to grant or deny this particul ar

form of (preliminary) local governmental approval to Houston Street ’ s site plan must be made by the

local government having jurisdiction over the

proposed development, i.e, the City of

Jacksonville —— not by Pine Grove, Houston Street,

FHFC, or the unders igned. Mr. Huxford was

empowered to make the statement for the city. He made it.

Houston Street Manor LP , 2015 WL 5008308, at *13; see also Madison Oaks,

LLC , and Am. Residential Communities, LLC v. Fla. Hous. Fin. Corp. , Case

No. 18 - 2966 (July 6, 2018) ( order on motion in limine excluding evidence of

zoning and allowable uses of applicant ’ s property) ; Warley Park, Ltd. v. Fla.

Hous. Fin. Corp. , C ase No. 17 - 3996 BID ( Fla. DOAH Oct. 19, 2017) adopted

with modifications (FHFC Dec. 8, 2017) (allowing FHFC to defer to local

government ’ s zoning and land use certifications submitted as part of

application); Madison Hollow, LLC , and Am. Residential Dev . v. Brixton

Landing, Ltd. and Fla. Hous. Fin. Corp ., Case No. 15 - 3301 BID ( Fla. DOAH

Oct. 29, 2015 ; FHFC Dec. 11, 2015) (finding local government had jurisdiction

to grant or deny the Zoning Form and FHFC did not erroneously accept local

government ’ s certification).

Section 1 20.569(2)(g) provides that “ irrelevant, immaterial, or unduly

repetitious evidence shall be excluded ” from an admi nistrative proceeding.

T here is no dispute the Zoning Form was executed by a City Public Official

authorized to do so. A bsent evidence that the Zoning F orm was obtained

through fraud, illegality, or corruption, it is irrelevant if Wa terview ’ s

proposed project would have ultimately violated zoning or other federal

regulations. Accordingly, proposed Exhibits P2 through P 5 , P7, P8, and P20

(the deposition of Mr. Carr) are irrelevant and immaterial to the issues in this proceeding. FHFC ’ s objection is sustained and these exhibits are not

entered into evidence.

F INDINGS O F F ACT

P ARTIES AND P ROCESS

1. Petit ioner Parkwood is an applicant responding to the RFA. The

Parkwood application, assigned number 2020 - 422BS, was deemed eligible but

was not selected for funding under the terms of the RFA.

2. Respondent Ch ristian Manor is an applicant responding to the RFA.

The Christian Manor application, assigned number 2020 - 405BS, was deemed

eligible and was selected for funding under the terms of the R FA.

3. FHFC is a public corporation created pursuant to section 420.504,

Florida Statutes. The purpose of FHFC is to promote public welfare by

administering the governmental function of financing affordable housing in

Florida. FHFC is tasked with allocatin g a portion of the certain Disaster

Recovery funding allocated by the U.S. Department of Housin g and Urban

Development pursuant to the State of Florida Action Plan for Disaster

Recovery.

4. Waterview was an applicant responding to the RFA. The Waterview

ap plication, assigned number 2020 - 424BSN, was deemed eligible but was not

selected for funding under the terms of the RFA.

5. FHFC is authorized to allocate housing credits and other funding by

means of request s for proposal s or other competitive solicitatio n.

See § 420.507(48), Fla. Stat. ; Fla. Admin. Code Ch . 67 - 60 (governing the

competitive solicitation process). FHFC allocates its competitive funding

pursuant to the bid protest p rovisions of section 120.57(3).

6. Funding is made available through a compet itive application process

commenced by the issuance of a Request for Applications (RA). An RA is

equivalent to a “ request for proposal ” as indicated in Florida Administrative

Code Rule 67 - 60.009(4).

7. The RFA was issued on November 6, 2019. It was modifie d several

times, and the final RFA was issued on December 20, 2019. The application

deadline was December 30, 2019.

8. Sixty - five applications were submitted in response to the RFA.

9. A Review Committee was appointed to review the applications and

make re commendations to FHFC ’ s Board of Directors (the Board). The

Review Committee found 57 applications eligible, seven applications

ineligible, and one application withdrew from the selection process. Through

the ranking and selection process outlined in the R FA, 13 applications were

preliminarily recommended for funding , including Christian Manor. The

Review Committee developed charts listing its eligibility and funding

recommendations to be presented to the Board.

10. On March 6, 2020, the Board met and consi dered the

recommendations of the Review Committee for the RFA. At 9:35 a.m. that

same day, all RFA applicants received notice that the Board determined

whether applications were eligible or ineligible for funding consideration and

that certain eligible app licants were preliminarily selected for funding,

subject to satisfactory completion of the credit underwriting process. Such

notice was provided by the posting of two spreadsheets on the FHFC website ,

www.floridahousing.org : (1) listing the Board - approved scoring results for the

RFA, and (2) identifying the applications which FHFC proposed to fund .

There is no dispute that Petitioner and Christian Manor received this notice.

11. In the March 6, 2020 , posting, FHFC announced its intention to award

funding to 13 applications including Christian Manor.

12. No challenges were made to the terms of the RFA.

R ANKING AND S ELECTION P ROCESS

13. Through the RFA, FHFC seeks to award an estimated total of

$71,360,000 in SAIL Financing, as well as tax - exempt bonds, to ass ist in

financing the development of affordable rental housing for tenants who are

either low - income or extremely low - income. The available SAIL financing

was to be divided so that a certain amount was targeted both geographically, between Large, Medium, an d Small Counties, and demographically, between

applicants proposing housing for families and those proposing housing for the

elderly.

14 . Applicants who are awarded tax - exempt bond financing are also

entitled to an award of non - competitive federal low - inco me housing tax

credits . FHFC made a pproximately $5,611,650 in National Housing Trust

Fund (NHTF) funding available to applicants committing to build either new

construction or rehabilitation of family or elderly housing for “ Persons with

Special Needs . ”

1 5 . Applications in this RFA are scored in two categ ories for a possible

total of ten points. Five points each can be awarded for Submission of Pre -

Approved Principal Disclosure Fo rm and Local Government Contributions.

Because so many applica nts achieve a p erfect score of ten , the RFA

establishes a series of tiebreakers referred to as a “ sorting order, ” designed to

rank order applications for funding selection. The RFA set the following

sorting order, after listing applications from highest score to lowest s core:

a. By eligibility for Proximity Funding Preference;

then

b. By eligibility for the Per Unit Construction Funding Preference; then

c. By Leveraging Level number 1 through 5; then

d. By eligibility for the Florida Job Creation Preference; then

e. By randomly assigned lottery number.

16. The RFA also established a series of funding goals. Those goals were:

One New Construction Application in a Large

County serving Elderly residents.

Three New Construction Applications in a Large

County serving Family residents, with a preference

that at least two of such Applications being from “ Self - Sourced ” Applicants.

One New Construction Application in a Medium

County serving Elderly residents.

Two New Construction Applications in a Medium

County, with a preference that at least one such

Application being from a self - sourced Applicant.

17 . The RFA designated each county in Florida as either Large, Medium,

or Small. The RFA also allow ed an applicant to designate itself as “ Self -

Sourced, ” which requires ap plicants proposing new construction family

projects to provide a portion of their development funding themselves , in an

amount of at least half of its SAIL Request Amount (or $1 million, whichever

is greater).

18 . The RFA provide d that eligible applica nts be assigned a Leveraging

Level 1 through 5, with 1 being the best score, based on the total Corporation

SAIL Funding amount relative to all other eligible a pplicants ’ total

Corporation SAIL Funding amount. The Leveraging Level is a comparative

tool to rank a pplicants based on how much SAIL funding each a pplicant has

requested per affordable housing unit (Set - Aside Unit) it proposes to

construct. Calculation of the Leveraging Level includes adjusting the total

amount of SAIL funds requested by an applicant b ased on a variety of factors,

including development type, development location, construction method to be

employed, and whether a Public Housing Authority is part of the a pplicant,

then dividing that adjusted amount by the a pplicant ’ s proposed number of

Se t - Aside Units.

19 . For example, the SAIL Request pe r Set - Aside Unit is reduced by ten

percent for a pplicants proposing a Mid - Rise Four - S tor y building , while

a pplicants proposing Garden Apartments or Townhouses do not receive this

adjustment, and a pplicant s proposing Five - S tory or Six - story Mid - Rises or

High - Rises get a greater reduction. Applicants whose adjusted SAIL Request

per Set - As ide Unit is among the lowest ten percent of all calculated SAIL

Request amounts per Set - Aside Unit in this RFA are assigne d Leveraging

Level 1; the next 20 percent are Leveraging Level 2; the next 20 percent are

Leveraging Level 3; the next 20 percent are Leveraging Level 4; and the

highest 30 percent are Leveraging Level 5.

20 . The RFA employed a “ funding test, ” requiring th at the full amount of

an applicant ’ s SAIL request be available for award when that applicant is

under consideration for funding; partial funding awards are not permitted. Sufficient SAIL funding must be available in both the county size group

(Large, Mediu m, or Small), and the demographic category (elderly or family)

for an applicant to be selected. Within the county size group, the RFA

contains a pour - over provision for any unallocated Small County funding to

be divided between the Medium and Large County funding availability; and

any unallocated Medium County funding would be made available to Large

County applicants.

21 . Further, in order to promote geographic distribution of funding

awards, the RFA included a County Award Tally mechanism. If an applicant

was selected in a particular county, a second applicant would not generally be

selected from that same county if there was any eligible applicant available

(even with a lower total application score) from any other county, from which

an applicant had not already been selected for funding.

22 . The RFA set forth a very specific funding selection order, taking into

consideration two specific counties (Miami - Dade and Broward), county size

gro ups, development category (new c onstruction or rehabilitation),

demog raphic group (elderly or family), and self - sourced status.

C HRISTIAN M ANOR ’ S A PPLICATION

23. One of the criteria in the RFA for scoring and ranking applications

involves proximity to certain services. The RFA provides in relevant part:

e. Proximity

The A pplication may earn proximity points based

on the distance between the Development Location (if Private Transportation is not selected at

question 5.e.(2)(a) of Exhibit A) and the Community

Services stated in Exhibit A. Proximity points are awarded according to the Transit and Community Service Scoring Charts outlined in Item 2 of Exhibit C. Proximity points will not be applied

towards the total score. Proximity points will only

be used to determine whether the Applicant meets the required minimum proximity eligibility requirements and the Proximity Funding

Preference, as outlined in the chart below.

Requirements and Funding Preference

Qualifications

All Large County Applications must achieve a

minimum numbe r of Transit Service Points and

achieve a minimum number of total proximity points to be eligible for funding ... All Applications

that achieve a higher number of total proximity

points may also qualify for the Proximity Funding Preference as outlined belo w.

(3) Community Services (Maximum 4 Points for

each service, up to 3 services) Applicants may

provide the location information and distances for three of the following four Community Services on which to base the Application ’ s Community

Services Score. T he Community Service Scoring

Charts, which reflect the methodology for calculating the points awarded based on the distances, are outlined in Exhibit C.

Location of coordinates for Community Services

Coordinates must represent a point that is on the door way threshold of an exterior entrance that

provides direct public access to the building where

the service is located.

* * *

Eligible Community Services

(a) Grocery Store - This service is defined in Exhibit

B and may be selected by all Applica nts.

(b) Public School - This service is defined in Exhibit

B and may be selected only if the Applicant selected

the Family Demographic Commitment.

(c) Medical Facility - This service is defined in

Exhibit B and may be selected by all Applicants.

(d) Pha rmacy - This service is defined in Exhibit B

and may be selected by all Applicants.

(4) Scoring Proximity to Services (Transit and

Community)

(b) Bus and Rail Transit Services and Community

Services

Applicants that wish to receive proximity points for

T ransit Services other than Private Transportation

or points for any community service must provide

latitude and longitude coordinates for that service,

stated in decimal degrees, rounded to at least the

sixth decimal place, and the distance between the

[DL P] and the coordinates for the service. The

distances between the DLP and the latitude and

longitude coordinates for each service will be the

basis for awarding proximity points. Failure to

provide the distance for any service will result in

zero points fo r that service. The Transit and

Community Service Scoring Charts reflecting the

methodology for calculating the points awarded based on the distances are in Exhibit C. (emphasis

added).

24. Applicants from a Large County, including Palm Beach County (wher e

Christian Manor is located), must receive at least 10.5 Proximity Points

(including at least 2.0 Transit Service points) to be eligible for consideration

for funding, and at least 12.5 Proximity Points to receive the Proximity Funding Preference.

25. In its Application, Christian Manor selected three p ublic b us s tops for

its Transit Services, at claimed distances of .04 miles, .03 miles, and .51 miles from its proposed DLP. It was awarded 5 points for Transit Services. The

validity of Christian Manor ’ s cl aimed Transit Services is not disputed.

26. For its Community Services, Christian Manor identified the following

services:

a. Grocery Store - Aldi Food Market,

2481 Okeechobee Blvd., West Palm Beach, Florida

33409, at a distance of 0.73 miles

b. Medical Facility - MD Now Urgent Care,

2007 Palm Beach Lakes Blvd., West Palm Beach,

Florida 33409, at a distance of 0.82 miles

c. Pharmacy - Target (CVS Pharmacy), 1760 Palm

Beach Lakes Blvd., West Palm Beach, Florida

33401, at a distance of 0.70 miles.

27. The Aldi Food Market meets the definition of a Grocery Store in the

RFA.

28. The MD Now Urgent Care meets the definition of a Medical Facility in

the RFA.

29 . Christian Manor identified each service by latitude and longitude

coordinates and by distance. Thes e coordinates, however, did not accurately

reflect the doorway threshold of either the Aldi Food Market or the MD Now

Urgent Care Center.

30 . The latitude and longitude coordinates provided for the Grocery Store

were erroneous. The listed coordinates ident ify a point over 0.9 miles away

from the doorway threshold of the Aldi Food Market. The latitude and

longitude coordinates provided for the Medical Facility identify a point over

0.8 miles away from the doorway threshold of the MD Now Urgent Care

Center.

31 . The actual distance between the Aldi Food Market and the DLP is

.73 miles.

32 . The actual distance between the street address of the MD Now Urgent

Care Center and the DLP is .82 miles.

33 . Based on these identified services, Christian Manor was aw arded 3

points for the Grocery Store, 3 points for the Pharmacy, and 2.5 points for the Medical Facility. The points awarded for the Pharmacy are not disputed.

34 . Parkwood argues that Christian Manor should be awarded no

proximity points for its identifie d Grocery Store or Medical Facility.

Parkwood does not argue that the Aldi Food Market is not a Grocery Store as

defined by the RFA, nor does it argue that the MD Now Urgent Care is not a

Medical Facility as defined by the RFA. Parkwood does not question t he

identified addresses for the Community Services or contest that the distances

between the identified Aldi Food Market and the MD Now Urgent Care and

the DLP are .73 miles and .82 miles respectively.

35 . Rather, Parkwood ’ s argument is na rrowly focused o n the fact the

erroneous longitude and l atitude coordinates for the grocery and medical

services are not at the doorway threshold. Parkwood would have FHFC

ignore the actual addresses and distances because of the error in coordinates.

Respondents argue the mistake in coordinates was a minor irregularity.

36 The RFA specifically gives FHFC the right to waive minor

irregularities.

37 Rule 67 - 60.008 provides the criteria that FHFC is to consider when

evaluating whether an error should be waived as a minor irre gularity.

Minor irregularities are those irregularities in an

Application, such as computation, typographical, or

other errors, that do not result in the omission of any material information; do not create any uncertainty that the terms and requirements o f the

competitive solicitation have been met; do not

provide a competitive advantage or benefit not

enjoyed by other Applicants; and do not adversely impact the interests of the Corporation or the public. Minor irregularities may be waived or

corrected by the Corporation.

38. Ms. Button testified that an evaluating FHFC Review Committee

member does not use the latitude or longitude coordinates to confirm the

accuracy of the distances provided. Rather, the inclusion of the requirement

for such coordinates dates back to when measurements were done by

surveyors, who would certif y the distances on a special form. FHFC no longer

requires the s urveyor certification form. FHFC now requires an applicant to

self - designate the community services and proximity requir ements. FHFC

considers the actual distances as the most relevant factors when evaluating

points awarded for proximity from the DLP to a selected Community Service.

39 . Ms. Button also testified that listing the incorrect latitude and

longitude coordinate s could, in this particular case, be waived as a minor

irregularity. She explained that because the proximity points are based on

the distance between the D LP and the identified services, and because the

distances claimed in Christian Manor ’ s application w ere correct, the

proximity points awarded were also correct.

40 . Ms. Button opined that Christian Manor did not garner a competitive

advantage from the coordinate errors in the application. The coordinates did

not create any uncertainty in the application as to what Community Services

were identified or how far they were from the DLP . Petitioner pointed to no

evidence of any such advantage.

41. Ms. Button also testified that the error in coordinates did not result in

any harm to the public or to FHFC. Again , Petitioner provided no evidence of

such harm.

42 . Rather, Petitioner relies on a differe nt application in a different R A,

where the scorer for FHFC had determined that an applicant should be found ineligible because that applicant had failed to list the proper coo rdinates for

one of its listed C ommunity S ervices. That applicant, however, never

challenged FHFC ’ s finding, and therefore never presented evidence or

argument contesting this finding of ineligibility. It is unclear whether the

applicant in the o ther case was found ineligible for other reasons as well,

where that applicant was ranked, and whether there were other

circumstances that would have affected the scoring a nd ranking in that

particular R A. Ms. Button testified that if the error in coordina tes had been

challenged, FHFC would then have examined the particular circumstances of the situation to determine whether or not the error should have been waived

as a minor irregularity.

43 . There is no dispute that the Christian Manor application conta ined a

similar error, and that if Christian Manor had not been able to demonstrate

that the claimed distances to the grocery store and medical facility were

accurate, that error would have resulted in the application being found

ineligible. But there is in sufficient evidence to determine whether Petitioner

is comparing “ apples to apples ” when relying on this other situation. A ny

reference to this other applicant in the other R A is unreliable and

unconvincing.

44. Regardless, in this case, the undersigned ex amine d the circumstances

of Christian Manor ’ s application and finds b ased on the preponderance of the

evidence (made up of the stipulated facts and Ms. Button ’ s unrefuted

testimony) any inaccuracies in the longitude and latitude coordinates

provided by Chr istian Manor constitute a minor irregularity that may be waived by FHFC.

45. Based on the facts established, the award to Christian Manor is

reasonable and neither erroneous, arbitrary, nor capricious.

W ATERVIEW ’ S A PPLICATION

46 . One of the requirements o f the RFA is that applicants demonstrate

certain Ability to Proceed e lements. One of those elements is as follows:

Appropriate Zoning. Demonstrate that as of the

Application Deadline the entire proposed

Development site is appropriately zoned and consiste nt with local land use regulations regarding

density and intended use or that the proposed Development site is legally non - conforming by

providing, as Attachment 9 to Exhibit A, the applicable properly completed and executed verification form:

(a) The Fl orida Housing Finance Corporation Local

Government Verification that Development is Consistent with Zoning and Land Use Regulations form (Form Rev. 08 -

47 . As part of its application, Waterview submitted a Zoning Form

executed by Elisa beth Dang, a City Public Official . The Zoning Form states,

among other requirements:

The undersigned service provider confirms that, as

of the date that this form was signed, the above

referenced Development ’ s proposed number of

units, density, and intend ed use are consistent with

current land use regulations and zoning

designation or, if the Development consists of

rehabilitation, the intended use is allowed as a

legally non - conforming use. To the best of my

knowledge, there are no hearings or approvals

r equired to obtain the appropriate zoning

classification. Assuming compliance with the

applicable land use regulations, there are no known

conditions that would preclude construction or rehabilitation of the referenced Development on the proposed site.

48 . Once it receives the Zoning Form , FHFC does not require that an

applicant demonstrate in its application that it will be capable of constructing

the proposed development, nor does FHFC attempt to independently verify

that an applicant will be capable of constructing the proposed development

during the application process. FHFC does not require an applicant to submit

engineering drawings or final site plans during the application process, nor

does the RFA contain any restrictions or requirements concerning the height

of any proposed buildings. All of the details and verifications concerning the

actual construction of the proposed project are evaluated during the credit

underwriting process.

49 . Based partially on its identification of Development Type in i ts

application to FHFC as “ Mid - rise 4 stories , ” Waterview ’ s adjusted SAIL

request per affo rdable unit resulted in it being assigned Leveraging Level 4.

If it had instead identified a Development Type of “ Garden Apartments , ” it

would have received Leveragin g Level 5.

50 . Petitioner argues that Waterview will be unable to construct the four -

story mid - rise building identified in its application while also meeting a 40 -

foot height limitation in the local zoning code. As explained above, for the

same reasons th e undersigned sustained the objections to Petitioner ’ s

exhibits relating to zoning issues and feasibility of constructing the proposed

development, the undersigned finds at this stage (eligibility, scoring, and

ranking), FHFC was not required to independen tly verify that the proposed

development would comply with all building and zoning regulations. 4

51 . The evidence established that Waterview submitted the required

Zoning Form executed by a person with authority from the City to execute

such a form. There was no evidence presented that Waterview ’ s Zoning Form

was improperly completed, or that it was obtained through fraud or illegality.

52 . Moreover, there was no convincing evidence that the Zoning Form was

improperly completed. FHFC did not make an indepe ndent determination as

to whether a proposed project would comply with all local zoning

requirements, but instead relied on the representation of the local official

who executed the Zoning Form.

53 . Petitioner also argues Waterview should be deemed inelig ible because

it presented different information to the City than it presented to FHFC in its

application. Specifically, Petitioner challenges use of the term “ garden

apartment ” by Waterview in materials it submitted to the City , but not

submit ted to FHFC ; and the impact of Waterview ’ s proposed development on

wetlands. The undersigned rejects these arguments for multiple reasons.

4 Had Waterview been award ed funds , but its proposed development could not be built due to

zoning restrictions, that w ould be address ed during the credit underwriting process.

54 . First, Petitioner alleges that the presentation of additional

information to the City somehow conflicts with the Applicant Certification

and Acknowledgement Form that applicants are required to sign which

provides in relevant part: “ In eliciting information from third parties required

by and/or included in this Application, the Applicant has provided such

parties information that accurately describes the Development as proposed in

this Application. ” Ms. Button , however, testified that providing more

information to the local government than is presented to FHFC would not in

itself conflict with this statement in th is f orm.

55 . Second, Mr. Savino ’ s deposition testimony established he had a

number of communications with the City regarding the proposed project and

submitted numerous documents for the City to review. Mr. Savino testified

he used the term “ garden apartments ” when di scussing the project with the

City to refer to apartment complexes, not to the FHFC definition of “ garden

apartments ” as being three stories or less. There is no evidence rebutting

Mr. Savino ’ s version of events, nor is there any indication what the City

u nderstood the term to mean.

56 . Third, Petitioner argues that Waterview ’ s proposed project might have

impacted wetlands on the property, contrary to relevant regulations. However, Mr. Savino testified that Waterview could build the project without impact ing wetlands. Waterview also included among the documents

submitted to the City a Revised Preliminary Site Plan which indicated that the Waterview development would not impact wetlands.

57. Regardless, even if it had been shown that the Waterview project

would impact wetlands, this would only impact its ability to receive NHTF

f unds; i t would not have any impact on whether FHFC deems an applicant

eligible for funding under this RFA. Ms. Button testified that each applicant

is required to check a box on th e application indicating whether it is seeking

this special funding, but none are required to take it. This special funding is

not considered by FHFC when evaluating an applicant ’ s funding sources

during the application review process, and FHFC does not ev en evaluate an

applicant ’ s eligibility for the NHTF during the scoring process. Ev en if

Petitioner could prove Waterview would not be able to qualify for the special

funding, th ere would be no impact on the scoring of its application.

58. Ultimately, Peti tioner presented no evidence that the City had

somehow been misled into signing the Zoning Form required by the RFA, or

that it had not understood that t he proposed project involved a four - story

building. The fact th at the Ms. Dang did sign the Z oning Form indicates that

she believed the City had all the information it needed to do so.

59 . Based on the preponderance of the evidence, Waterview ’ s application

is eligible for funding.

C ONCLUSIONS O F L AW

60. The Division of Administrative Hearings has jurisdict ion over the

parties and the subject matter of this proceed ing. §§ 120.569 a nd 120.57(1)

and (3 ), Fla . Stat.

61. All of the applicant - parties have standing. Specifically, decisions in

this case affect the substantial interests of each of the parties, and e ach has

standing to challenge FHFC ’ s scoring and review decisions. See Madison

Highlands, LLC v. Fla. Hous. Fin. Corp. , 220 So. 3d 467, 474 (Fla. 5th DCA

2017)(finding standing where “ Madison Highlands ... alleges that the

applications of the four higher - r anked applicants had deficiencies and that if

the FHFC had properly scored or considered the higher - ranked applicants, it

would have been awarded the housing tax credits for the Hillsborough

County development. ” ).

62 . Section 420.507 provides the statutor y authority for FHFC to award

low - income housing tax credits by requests for proposals or other competitive

solicitation.

63. Section 120.57(3)(f) provides the burden of proof as follows:

Unless otherwise provided by statute, the burden of

proof shall r est with the party protesting the

proposed agency action . In a competitive -

procurement protest, other than a rejection of all

bids, proposals, or replies, the administrative law judge shall conduct a de novo proceeding to

determine whether the agency ’ s pro posed action is

contrary to the agency ’ s governing statutes, the

agency ’ s rules or policies, or th e solicitation

specifications. The standard of proof for such

proceedings shall be whether the proposed agency

action was clearly erroneous, contrary to

compe tition, arbitrary, or capricious . (emphasis

added).

64 . As the party protesting FHFC ’ s proposed action, Petitioner bears the

burden of proof by a preponderance of the evidence. §§ 120.57(3)(f) and

120.57(1)(j), Fla. Stat.

65 . Although competitive - solicita tion protest proceedings are described in

section 120.57(3)(f) as de novo, courts have held these hearings are a “ form of

intra - agency review. The ALJ may receive evidence, as with any formal

hearing under section 120.57(1), but the object of the proceedin g is to

evaluate the action taken by the agency. ” State Contracting and Eng ’ g Corp.

v. Dep ’ t of Transp. , 709 So. 2d 607, 609 (Fla. 1st DCA 1998).

66. After determining the relevant facts based upon evidence presented at

hearing, the ALJ ’ s role is to evalua te the agency ’ s intended a ction in light of

those facts. The agency ’ s determinations must remain undisturbed unless

clearly erroneous, contrary to competit ion, arbitrary, or capricious. A

proposed award will be upheld unless it is contrary to governing sta tutes, the

agency ’ s rules, or the solicitation specifications.

67. The “ clearly erroneous ” standard has been applied to both factual

determinations and interpretations of st atute, rule, or specification. A factual

determination is “ clearly erroneous ” when the reviewer is “ left with a definite

and firm conviction that [the fact - finder] has made a mistake. ” Tropical

Jewelers, Inc. v. Bank of Am., N.A., 19 So. 3d 424, 426 (Fla. 3d DCA 2009).

68 . As applied to legal interpretations, the “ clearly erroneous ” st andard

was defined by the court in Colbert v. Department of Health , 890 So. 2d 1165,

1166 (Fla. 1st DCA 2004), to mean that “ the interpretation will be upheld if

the agency ’ s construction falls within the permiss ible range of

interpretations. If, however, the agency ’ s interpretation conflicts with the

plain and ordinary intent of the law, judicial defer ence need not be given to

it. ” Id. (citations omitted). 5

69. Whether an agency action is “ contrary to competition ” must be

determined on a case - by - case basi s . See R.N. Expertise, Inc. v. Miami - Dade

Ct y . Sch. Bd., Case No. 01 - 2663BID, 2002 WL 185217 (Fla. DOAH Feb. 4,

2002; Miami - Dade Ct y. Sch. Bd. Mar. 13, 2002). Examples of such actions

include those which:

(a) create the appearance of and opportunity fo r

favoritism;

(b) erode public confidence that contracts are awarded equitably and economically;

(c) cause the procurement process to be genuinely

unfair or unreasonably exclusive; or

(d) are unethical, dishonest, illegal, or fraudulent.

Id. at *22.

70 . An action is “ arbitrary if it is not supported by logic or the necessary

facts, ” and “ capricious if it is adopted without thought or reason or is

5 Although FH FC argues deference should be given to its interpretation of its own rules

(FHFC ’ s PRO at ¶61), the cases cited therein predate the adoption of Article V, section 21 of

the Florida Constitution, which provides:

In interpreting a state statute or rule, a s tate court or an

officer hearing an administrative action pursuant to general

law may not defer to an administrative agency ’ s

interpretation of such statute or rule, and must instead interpret such statute or rule de novo.

As such, to the extent necessary , the undersigned has interpreted any administrative rules

de novo . See A.W. v. Ag. for Pers. with Disab. , 288 So. 3d 91, 94 (Fla. 1st DCA 2019).

irrational. ” Hadi v. Lib. Behav. Health Corp., 927 So. 2d 34, 38 (Fla. 1st DCA

2006). If agency action is ju stifiable under any analysis that a reasonable

person would use to reach a decision of similar importance, the action is

neither arbitrary nor capricious. See Dravo Basic Materials Co. v. Dep ’ t of

Transp., 602 So. 2d 632, 634 n.3 (Fla. 2d DCA 1992). Thus, under the

arbitrary or capricious standard, an agency is to be subject only to “ the most

rudimentary command of rationality. ” Adam Smith Enterprises, Inc. v. State

Dep ’ t of Envtl. Reg . , 553 So. 2d 1260, 1273 (Fla. 1st DCA 1989). The reviewer

“ must consider whether the agency: (1) has considered all relevant factors; (2)

has given actual, good faith consideration to those factors; and (3) h as used

reason rather than whim to progress from consideration of each of these

factors to its final decision. ” Id . at * 1 273.

M INOR I RREGULARITY

71 . The issue regarding Christian Manor ’ s application is whether the

error s in longitude and latitude coordinates were minor irregularities that

could be waived by FHFC. See Flagship Manor LLC v. Fla. Hous. Fin. Corp. ,

199 So. 3d 1090 (Fla. 1st DCA 2016) . A “ minor irregularity ” is defined by rule

as follows:

“ Minor Irregularity ” means a variation in a term or

condition of an Application pursuant to this rule

chapter that does not provide a competitive advantage or benefit not en joyed by other

Applicants, and does not adversely impact the interests of [FHFC] or the public .

Fla. Admin. Code R. 67 - 60.002(6).

72 . Rule 67 - 60.008 and the RFA allow FHFC to waive errors that are not

material or that are “ minor irregularities. ” See Pin nacle Rio, LLC v. F la.

Hous. Fin. Corp. , Case N o. 14 - 1398BID (Fla. DOAH June 4, 2014 ; FHFC

June 13, 2014) (where informa tion omitted from one part of an application

but found in other parts of application , FHFC had discretion to consider

o mission a minor i rregularity). A deviation “ is only material if it gives the

bidder a substantial advantage over the other bidders and thereby restricts

or stifles competition. ” Tropabest Foods, Inc. v. Dep ’ t of Gen. Servs ., 493 So.

2d 50, 52 (Fla. 1st DCA 1986).

73 . As it relates to minor irregularities, FHFC has waived deviations in

the process of awarding proximity points that did not provide a competitive

advantage to the applicant, and that did not adversely impact the interest of

FHFC or the public. Several ALJs have addressed the same issue. See , e.g. ,

HTG Hammock Ridge, LLC, and Redding Dev . Partners, LLC v. Fla. Hous.

Fin. Corp. C ase No. 16 - 1137BID, 2016 WL 1627040 ( Fla. DOAH April 19,

2016; FHFC May 12, 2016) (errors in coordinates for community services did

not a ffect the distance from the service to the DLP or the points awarded, and

were therefore waivable minor irregularities); Heritage at Pompano Hous .

Partners, Ltd. v. Fla. Hous. Fin. Corp. , Case No. 14 - 1361BID, 2014 WL

2624255 ( Fla. DOAH June 10, 2014; FHFC June 13, 2014) (errors in distance

between bus sto p and DLP , and between public school and D LP , that did not

affect the proximity points awarded were waivable minor irregularities).

74 . The orders in HTG Hammock and Heritage at Pompano address the

exact argument ma de by Petitioner in this case. There, the challengers

alleged that the identified longitude and lati tude coordina tes for transit and

public school services were not at the doorway threshold of the identified

services. The deviation resulted in a change in the distance provided between

the DLP and the identified service. Despite the discrepan cies , both the ALJ

and FHFC concluded the errors in proximity distances did not result in a

competitive advantage and the error s were waived as minor irregula ri ties .

75 . Coordinate mistakes that were far more off the mark have been

deemed minor irre gularities that were waivable. For example, in HTG Osprey

Pointe, LLC v. Fla. Hous. Fin. Corp. , Case Nos. 18 - 0479 BID , 18 - 0484 BID ,

and 18 - 04 8 5 5 BID , 2018 WL 3019500 ( Fla. DOAH March 21, 2018; FHFC

May 4, 2018), an applicant failed to include a negative sign in the coordinates for its selected DLP, resulting in the identified DLP being located in India

rather than in the desired location of Miami - Dade County. Id. at *5 . If the

DLP actually identified in the application had been used , the a pplication

would not have been eligible because th e project would not be in Miami - Dade

County and it would not have achieved the necessary proximity points. In

fact the ap plication wou ld have been awarded 0 proximity points. As here,

HTG Osprey involved an incorrectly identified location point. In that case,

FHFC relied on the address of the DLP to confirm Miami Dade County as the

correct location. The ALJ concurred with FHFC ’ s determin ation that this was

a minor irregularity because the application noted in numerous places that

the DLP was in Miami - Dade County. Id. at *11 ( “ In the instant case, Florida

Housing provided adequate, reasonable justification for its determination

that the mi ssing negative sign in the longitude coordinates in Woodland

Grove ’ s application constituted a minor irregularity. ” ).

76 . As in HTG Osprey , any error in the longitude and latitude coordinates

made by Christian Manor was reasonably waived by FHFC as a minor

irregularity.

C HRISTIAN M ANOR

77 . The evidence shows that the Grocery Store and the Medical Facility

identified by Christian Manor met the requisite definitions in the RFA, and

that the stated distances from the DLP to these services were correct.

Because proximity points are awarded based entirely on these stated

distances, the failure to state accurate latitude and longitude coordinates did not, in this case, have any impact on scoring.

78. Accordingly, FHFC ’ s scoring and award decision with regard to

Ch ristian Manor ’ s application was not contrary to statute, rule, or the terms

of the RFA, n or was the decision clearly erroneous, contrary to competition,

arbitrary, or capricious.

W ATERVIEW

79 . As explained above, Petitioner ’ s allegation that Waterview ’ s pr oposed

building would violate local zoning requirements is not relevant because

Waterview submitted a properly executed Zoning Form. Moreover,

Petitioner ’ s argument that Waterview will not be able to obtain NHTF

special funding because of potential wetland impact is equally irrelevant

since the funding was not a requirement for the RFA.

80 . Petitioner also has suggested that because Waterview voluntarily

dismissed its challenge to Christian Manor , the allegations against

Waterview should be deemed admitted . There is no legal basis for this

proposal and there could be a variety of reasons why Waterview no longer

wished to proceed with its challenge.

81 . In an a dministrative proceeding under c hapter 120, a petitioner does

not challenge the actions of a compe titor, it challenges the proposed action of

an agency. See § 120.57(3)(f), Fla. Stat. ( “ In a c ompetitive - procurement

protest … the administrative law judge shall conduct a de novo proceeding to

determine whether the agency ’ s proposed action is contrary to the agency ’ s

governing statutes, the agency ’ s rules or policies, or the solicitation

specifications. ” ).

82 . In this case, Petitioner bears the burden of demonstrat ing that

FHFC ’ s finding that Waterview was eligible was contrary to law or the terms

of the R FA . Whether Waterview appears in the case or not, that burden does

not change.

83 . Petitioner has failed to demonstrate that FHFC ’ s proposed action

finding Waterview eligible is contrary to statute, rule, policy, or the

specifications of the RFA. Petition er has also failed to demonstrate that

FHFC ’ s proposed action is clearly erroneous, contrary to competition,

arbitrary, or capricious.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

R ECOMMENDED that Respondent, Florid a Housing Finance Corporation,

enter a final order consistent with its initial dec isions: (1) finding the

applications of Waterview Preserve, LLC, and Christian Manor Restoration,

LLC, eligible for funding; (2) awarding the RFA funding to Christian Manor

R estoration , LLC ; and (3) dismissing the formal written protest of BDG

Parkwood Lofts, LP .

D ONE A ND E NTERED this 19th day of June , 2020 , in Tallahassee, Leon

County, Florida.

H ETAL D ESAI

Administrative Law Judge

Divis ion 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 the Clerk of the

Division of Administrative Hearings

this 19th day of June , 2020 .

C OPIES F URNISHED :

Hugh R. Brown, General Counsel

Florida Housing Finance Corporation

227 North Bronough Street , Suite 5000

Tallahassee, Florida 32301 - 1329

(eServed)

Michael P. Donaldson, Esquire

Carlton Fields

Suite 500

215 South Monroe Street

Tallahassee, Florida 32302

(eServed)

Michael J. Glazer, Esquire

Ausley McMullen

123 South Calhoun Street

Post Office Box 391

Tallahassee, Florida 32302

(eServed)

Christopher Dale McGuire, Esquire

Florida Housing Finance Corporation

227 North Bronough Street , Suite 5000

Tallahassee, Florida 32301 - 1329

(eServed)

Corporation Clerk

Florida Housing Finance Corporation

227 North Bronough Street , Suite 5000

Tallahassee, Florida 32301 - 1329

(eServed)

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

All parties have th e right 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.