Application Process - General Information

 

DEPARTMENT OF ECONOMIC OPPORTUNITY

Division of Community Development

RULE NO.:RULE TITLE:

73C-23.0041Application Process - General Information

Final Order No. DEO-16-163

In the Matter of

CITY OF MIDWAY,DEO Case No. 16-090

Final Order No. DEO-16-163

Petitioner.

/

FINAL ORDER DENYING PETITION FOR WAIVER

This matter is before the Department of Economic Opportunity (“Department”) based on a petition for waiver submitted by the City of Midway, City Council (“Midway”). The petition seeks a waiver of Rule 73C-23.0041(5)(c)2.a., Florida Administrative Code, as applied to Midway’s application under the Department’s Florida Small Cities Community Development Block Grant (CDBG) Program for the federal fiscal year 2015 Small Cities CDBG cycle for housing rehabilitation. The Department finds and concludes as follows:

Findings of Fact

1.On March 12, 2016, the Department commenced an application cycle accepting applications from eligible governments to participate in the federal fiscal year 2015 Small Cities CDBG Program for housing rehabilitation. The application cycle closed on April 25, 2016.

2.Midway timely submitted its application on April 25, 2016, for the amount of $700,000 for housing rehabilitation.

3.As part of the evaluation process, the Department reviewed Midway’s public hearing advertisements, and determined that the second public hearing advertisement did not meet the requirements of Rule 73C-23, Florida Administrative Code.

4.Rule 73C-23.0041(5)(c)2.a., Florida Administrative Code, states:

After an Application for Funding has been drafted, citizens shall be given the opportunity to express their views regarding the proposed application. This opportunity shall include the following:

a. A notice for a second public hearing shall be published in a local newspaper at least five days prior to and no more than 20 days before the date of the second public hearing. The notice shall include a summary of the draft application and the date, time and address of a public hearing on the draft application. The summary shall include the following:

(I) A description of the activities that will be undertaken with CDBG funding;

(II) A budget that lists the specific CDBG dollar amounts that will be allocated for each activity;

(III) The National Objective that will be met by each activity, except administration and engineering; and,

(IV) For Neighborhood Revitalization, Commercial Revitalization and Economic Development projects, the specific locations of the proposed activities, including street names or road numbers (e.g., County Road 50).

The notice shall also state where and when, other than at the public hearing, a copy of the draft application will be available for citizen review and how citizens can submit written comments on the draft application. Failure to include all of the required information in the public hearing notice shall result in the application being rejected as provided in Section 290.0475(6), Florida Statutes.

5.Section 290.0475(6), Florida Statutes, states that an application is ineligible for funding if the local government is not in compliance with the Department’s rule regarding citizen participation.

6.Midway’s second public hearing advertisement failed to include 1) where and when the draft application would be available for review, and 2) how citizens could submit written comments on the draft application.

7. The Department notified Midway on May 12, 2016, that since Midway did not comply with the citizen participation requirements of Rule 73C-23, Florida Administrative Code, the application could not be considered and was rejected.

8.Midway filed its petition for waiver from the requirement included in Rule 73C-23, Florida Administrative Code on June 2, 2016, so that it can remain in consideration for funding.

9.Midway argues that it met the intent of the CDBG rule and requests a one-time waiver that would application permanently to its grant application only.

10.Midway did not address its decision to seek waiver months after it failed to meet the rule’s requirements.

11.The Department has rejected all applications for the federal fiscal year 2015 Small Cities CDBG cycle for housing rehabilitation and readvertised.

Conclusions of Law

12.Midway filed its petition under section 120.542(2), Florida Statutes, which states:

Variances and waivers shall be granted when the person subject to the rule demonstrates that the purpose of the underlying statute will be or has been achieved by other means by the person and when application of a rule would create a substantial hardship or would violate principles of fairness. For purposes of this section, “substantial hardship” means a demonstrated economic, technological, legal, or other type of hardship to the person requesting the variance or waiver. For purposes of this section, “principles of fairness” are violated when the literal application of a rule affects a particular person in a manner significantly different from the way it affects other similarly situated persons who are subject to the rule.

13.Midway does not adequately explain in its petition why the application of Rule 73C-23, Florida Administrative Code, would create a “substantial hardship” or would violate the “principles of fairness.” Midway only explains that it “is an economic distress community that if this decision stands, it would severely create a hardship to the people it is meant to assist,” but does not explain how the application of the rule affects it.

14.However, the relief sought by Midway, the waiver of Rule 73C-23, Florida Administrative Code, so that it may remain in consideration for funding, is moot as the Department has rejected all federal fiscal year 2015 Small Cities CDBG applications for housing rehabilitation funding and readvertised.

15.Midway’s previous failure to comply with Rule 73C-23, Florida Administrative Code, does not prevent it from reapplying for federal fiscal year 2015 Small Cites CDBG housing rehabilitation funding.

16.Furthermore, even if the Department had not rejected all federal fiscal year 2015 Small Cities CDBG applications for housing rehabilitation funding, Midway did not timely submit its request for a waiver from Rule 73C-23, Florida Administrative Code, but instead submitted its request for a waiver months after failing to comply with Rule 73C-23, Florida Administrative Code.

17.Having determined that Midway was not in compliance with the requirements of Rule 73C-23, Florida Administrative Code, the Department correctly rejected its CDBG application.

Conclusion

Based on the foregoing, the Department denies the waiver as sought by Midway to pertain to its federal fiscal year 2015 Small Cities CDBG application.

DONE AND ORDERED in Tallahassee, Florida this 31st day of August, 2016.

/s/

Taylor Teepell, Director

Division of Community Development

Department of Economic Opportunity

 

Notice of administrative rights

Any person whose substantial interests are affected by this order has the opportunity for an administrative proceeding pursuant to section 120.569, Florida statutes.

For the required contents of a petition challenging agency action, refer to Rules 28-106.104(2), 28-106.201(2), and 28-106.301, Florida Administrative Code.

Depending on whether or not material facts are disputed in the petition, a hearing will be conducted pursuant to either sections 120.569 and 120.57(1), Florida statutes, or Sections 120.569 and 120.57(2), Florida statutes.

Any petition must be filed with the agency clerk of the department of economic opportunity within 21 calendar days of receipt of this notice. A petition is filed when it is received by:

Agency Clerk

Department of Economic Opportunity

Office of the general Counsel

107 East Madison St., MSC 110

Tallahassee, Florida 32399-4128

Fax [phone]

[e-mail]

You waive the right to any administrative proceeding if you do not file a petition with the agency clerk within 21 days of receipt of this final order.

CERTIFICATE OF FILING AND SERVICE

I HEREBY CERTIFY that the original of the foregoing Final Order Denying Petition for Waiver has been filed with the Agency Clerk of the Department of Economic Opportunity, 107 East Madison Street, MSC 110, Tallahassee, Florida 32399-4128, and that copies have been furnished to the parties listed and in the manner identified below on this 31st day of August, 2016.             

/s/

Stephanie Chatham, Agency Clerk

Department of Economic Opportunity

107 East Madison Street, MSC 110

Tallahassee, Florida 32399-4128

Telephone: [phone]

Facsimile: [phone]

 

By Certified US Mail

Henry C. Hunter, City Attorney

City of Midway

50 Martin Luther King Boulevard

Midway, Florida 32343

 

By Email Delivery

Hillary Ryan

Interim Bureau Chief

Division of Community Development

Department of Economic Opportunity

Tallahassee, Florida 32399

[e-mail]