STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HERMAN A. BEYER, )

)

Petitioner, )

)

vs. ) CASE NO. 76-037

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held before Charles C. Adams, Hearing Officer, Division of Administrative Hearings, Department of Administration, at the Lee County Courthouse, 2115 Second Street, Court Room C, Ft. Myers, Florida, at 2:30 P.M., February 19, 1976.

APPEARANCES

For Petitioner: Mr. Herman A. Beyer

Post Office Box 382

Punta Gorda, Florida 33950

For Respondent: Philip S. Bennett, Esquire

Office of Legal Operations Department of Transportation 605 Suwannee Street

Haydon Burns Building Tallahassee, Florida 32304

ISSUE

Whether the Applicant is entitled to compensation in the amount of $2,500, to pay for "fill dirt" which was installed on the Applicant's real estate in relocating his homestead, after his former homestead was bought as right-of-way for Interstate Highway 75. This claim is under the guise of a relocation appeal, in accordance with the Uniform Relocation Assistance And Real Property Acquisition Policies Act of 1970 (42 USC, 4601 - 4655).

FINDINGS OF FACT

1. In November, 1974, the Florida Department of Transportation paid the Applicant $32,500 in a negotiated purchase for the Applicant's property which was located in the line of construction for Interstate Highway 75. This price was for a mobile home 24' wide and 40' long, with appurtenances to the mobile home, to include a screen room, privacy paneling and carport.

   
   

2. Prior to the November, 1974 sale of the property to the Department of Transportation, the Applicant had purchased another parcel of land in late 1973 or early 1974. It was on this parcel of land that was purchased at that time,

   that the Applicant relocated his home. The amount of payment for the new lot was between $2,800 and $2,900. In order to comply with certain standards of the DeSoto County, Florida Health Department, ten inches of "fill dirt" were required to be implaced to have the septic tank meet requirements for a drain field. The cost of the application of the "fill dirt" was $2,500. The expenditure of $2,500 for "fill dirt" is the item of controversy between the Applicant and the Respondent.

   
   

3. The Applicant is claiming that the $2,500 should be reimbursed to him as part of a relocation assistance payment. The Respondent denies that the

   $2,500 is a proper item of compensation under the governing law on relocation assistance payments.

   
   

4. The Respondent's denial is based upon the fact that it believes that "fill dirt" is not a compensable item. More specifically, the Respondent regards the selection of this piece of property by the Applicant as being a matter of choice, which did not have to be made. The Respondent is persuaded that other parcels of property were available, which did not require "fill dirt" to be brought in, in order to comply with health requirements and the Applicant failed to purchase such a parcel, therefore, the Applicant must defray the expense of his selection, in terms of the $2,500 which was spent to bring the property up to health standards.

   
   

5. The history of the payments that were made by the Respondent can be derived by the application of the formula utilized. The Respondent looked at three comparable pieces of land , one for $32,500, a second for $28,500 and a third for $32,900. The closest comparable to the home that the Applicant sold, was the comparable listed at $32,500. The Respondent compared these comparable figures with the so called, "carve out" figure of a typical mobile home with equipment, on a typical mobile home site, which would have been a price of

   $25,721. Based upon this figure for a "carve out", and taking the figure for the closest comparable $32,500, the amount of maximum relocation reimbursement would have been $6,779. This figure is arrived at by subtracting the amount of the "carve out" figure from the closest comparable.

   
   

6. In fact the Respondent spent $27,372 for the land purchased and other compensable items, thus entitling him to $1,651 in relocation reimbursement, according to the Respondent's calculations.

   
   

7. Although, in the course of the hearing the Applicant was questioned about taking $1,651 as settlement. The Applicant said that he was only interested in the $2,500 figure.

   
   

8. It should be stated that the $1,651, is an amount which does not contemplate the payment for "fill dirt". It is in fact a figure arrived at for payment of other items considered to be compensable.

   
   

9. The question then becomes one of whether or not the Applicant is entitled to a $2500 payment for "fill dirt" which is not associated with the

   $1,651 which the Respondent claims the Applicant is entitled to.

   
   

10. One final factual comment should be made. That comment is that the Respondent's acquisition and relocation assistance officer, David Nicholson, saw the Applicant's new property after the twenty five hundred dollars worth of fill dirt had been installed. At that time, Mr. Nicholson said that the property appeared to meet the criteria for a decent, safe and sanitary dwelling. The witness, Nicholson had not seen the property prior to the installation of the

    "fill dirt". Consequently, the Respondent can not challenge the statement by the Applicant to the effect that the "fill dirt" was necessary in order to achieve a decent, safe and sanitary dwelling.

    
    

    CONCLUSIONS OF LAW

    
    

11. The controlling law which is found in 42 USC, 4623, indicates that a person who has been required to move, in response to a purchase made for purposes of building a federal highway, is entitled to a comparable replacement dwelling which is a decent, safe and sanitary dwelling, adequate to accommodate such displaced person, reasonably accessible to public services, and places of employment and available on the private market.

    
    

12. In applying this standard set forth in that section of the law, it would appear that the responsibility of such a selection of an alternate homesite resides with the displaced person. Since that responsibility resides with the displaced person, he is charged with finding a comparable replacement dwelling that is decent, safe, and sanitary. In this instance the Applicant did not find a comparable replacement dwelling, because he chose to select a homesite which was not decent, safe and sanitary. Instead, he chose a homesite which did not meet the health requirements of the county in which he was to reside. There has been no showing that the homesite that he selected was the closest he could come to being comparable to the home in which he had formerly resided. This is to say that there has been no showing that he looked in the area in which he intended to live and this substandard lot was the only one available. The possibility existed that other lots were available which were comparable in terms of being a replacement dwelling that was decent, safe and sanitary.

    
    

13. Therefore, the Respondent should not be responsible for the additional expense incurred by the Applicant in bringing the property up to standards, in view of the fact that the Applicant made the decision to buy that property and was responsible for determining whether it would meet applicable health and safety requirements prior to its purchase and had he determined that the property was not adequate, the Applicant could have selected another parcel.

    
    

14. It might be contended that the Applicant bought the new property before he sold his former property to the Respondent. This does not appear to be any justification for reimbursing the Applicant the cost of $2,500 for "fill dirt", because the ultimate responsibility of making a selection of replacement property and assuring that it would comply with the requisite standards for decent, safe and sanitary housing resided with the Applicant.

    
    

15. Therefore, it is concluded as a matter of law that the Respondent is not responsible for the $2,500 reimbursement for "fill dirt".

    
    

16. This conclusion of law does not attempt to address the $1,651 which has been stated as the amount which the Applicant is entitled to by form of relocation reimbursement. Such a determination of the rights to that stated compensation remains with the parties.

RECOMMENDATION

It is recommended that the Respondent deny the payment of $2,500 to the Applicant for installation of "fill dirt" at the Applicant's present homesite.

DONE and ENTERED this 4th day of April, 1976, in Tallahassee, Florida.

CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Mr. Herman A. Beyer Post Office Box 382

Punta Gorda, Florida 33950

Philip S. Bennett, Esquire Office of Legal Operations Department of Transportation 605 Suwannee Street

Haydon Burns Building Tallahassee, Florida 32304

Docket for Case No: 76-000037

Orders for Case No: 76-000037