STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SALLY MALONE, )

)

Petitioner, )

)

vs. ) CASE NO. 81-1621

) DEPARTMENT OF TRANSPORTATION ) and CECIL G. COSTIN, JR., )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Port St. Joe, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Robert T. Benton, II, on March 8, 1983. The Division of Administrative Hearings received the transcript of proceedings on March 28, 1983. Sally Malone and Cecil G. Costin, Jr. each appeared pro se. The Department of Transportation appeared through counsel:

APPEARANCES

For Petitioner: Pro se

For Respondent: Charles G. Gardner, Esquire

Haydon Burns Building Tallahassee, Florida 32301

These proceedings began with the filing on June 11, 1981, of a petition for hearing pursuant to Section 120.57(1), Florida Statutes (1981) in which Ms.

Sally Malone alleged that she "is a resident of the State of Florida who is adversely affected . . . by the filing of the . . . Department of Transportation's Maintenance Maps on May 11, 1981 in the Gulf County Court House"; that filing the maps was "a step by the Department of Transportation to 'disclaim' and or 'abandon' [state] property"; "that construction is now taking place on this . . . property"; and prayed that the Department of Transportation (DOT) "order construction halted immediately."

In a letter transmitting the petition to the Division of Administrative Hearings for hearing, dated June 17, 1981, counsel for DOT referred to the case as "Sally Malone v. DOT & Cecil G. Costin, Jr." and this style was used by the original hearing officer in her first order. Mr. Costin, who had not been named in the petition, filed a motion to dismiss the "cause," which motion was denied by order entered August 14, 1981. At the final hearing, Mr. Costin was advised that he was "welcome to participate . . . but . . . free to leave."

ISSUE

Whether petitioner was substantially effected by DOT's filing of a maintenance map or maps in Gulf County? Whether she filed a timely petition for hearing? What action DOT should take in the circumstances?

FINDINGS OF FACT

1. The coast road through Gulf County now known as U.S. Highway 98 or State Road 30-A, was once called State Road 10. There is no record that the authorities obtained legal title to the right of way before building the road. In 1934 or 1935, Clint Thursby, a state road department maintenance foreman, Henry Alex Levins, assistant foreman or "little pusher," Wally Collinsworth, J. Dewey Davis, Lewis C. Gay, John Lester McQuaig, James Moore, Warren Northbrook, Earl Pulsar and Edmond Burnice Young transplanted palm trees from Gautier Hamlet to the Gulf side of old State Road 10. Mr. Levins measured 50 feet gulfward from the center line of the road, including the stretch of the road that traverses Yen's Addition to Beacon Hill, and drove stobs every 14 feet or so along the whole length of the road. For many years, the public has made use of the strip of property between the edge of the highway and the line once formed by the palm trees, some of which still stand.

   
   

   DOT MAPS

   
   

2. Among DOT's records is a 1938 "right of way map." The original is in its Tallahassee office and a copy is in its district office in Chipley. A copy has also been in the Gulf County Courthouse for many years, although it was never filed in the official records. Together with certain other DOT maps, it was kept separately in a book there. This "right of way map," Joint Exhibit No. 2, depicts the right of way for old State Road 10 through Yon's Addition to Beacon Hill as 150 feet wide. Petitioner's Exhibit No. 5. The map is not based on any claim to or proof of ownership, but was drawn to reflect "project alignment." (Testimony of Spangenberg) A DOT maintenance map dated May 4, 1981, Petitioner's Exhibit No. 7, was filed among the official records of Gulf County, Florida, in May of 1981. DOT maintenance maps are used to inform maintenance crews of the width of the road shoulders they are to maintain. DOT sometimes files these maps in official county records, in order to put adjacent landowners and others on notice of the extent of DOT's claim of right of way, in the absence of record proof of conveyance to DOT. The filing of such a map by DOT is the assertion, not the relinquishment of a claim to real property.

   
   

3. Between the time DOT's "right of way map" was drawn and the date of the "maintenance map," the area waterward of U.S. Highway 98 in Yon's Addition to Beacon Hill has twice been platted (although only the second plat became a part of the official records of Gulf County), and questions as to ownership of land in the area have been repeatedly litigated in the courts.

   
   

   PETITIONER'S INTEREST

   
   

4. Sally Malone lives in a house 190 feet from U.S. Highway 98. She does not own any real property in Gulf County "in [her] own name," but her name appears along with her husband's on an unrecorded deed.

   CONCLUSIONS OF LAW

   
   

5. If, as petitioner alleges, the maintenance map was filed in Gulf County's official records on May 11, 1981, her petition challenging this agency action, filed with the DOT on June 11, 1981, was untimely, although no party has sought dismissal of the petition on that basis.

   
   

6. Counsel for respondent DOT has deliberately declined, moreover, to seek dismissal of the petition either on grounds that petitioner lacks standing or on grounds all substantially interested parties did not receive notice of the proceedings, in hopes that "maybe we'll settle the issue once and for all." (T.

   15) But respondent Costin, who has exercised his right, as a substantially interested owner of adjacent land, to participate in these proceedings has raised, by motion ore tenus to dismiss, made at the hearing, the question of petitioner's standing or party status.

   
   

7. Although Ms. Malone alleged in her petition that she made recreational use of the disputed strip of property, no proof was adduced on this point. She did not even allege, moreover, that the filing of the maintenance map, as such, led to the alleged construction or in any other way disturbed her enjoyment or interfered with her use of any property. Her own evidence suggested that only a

   100 foot right of way was maintained historically.

   
   

8. Ms. Malone did not show any sufficient basis for her standing or party status. Especially in light of the fact that not all owners of land abutting

U.S. Highway 98 on the Gulf side were shown to have notice of these proceedings, and in view of counsel's representation "that Ms. Malone has basically the same issues against the DOT in Circuit Court at the present time," it is inappropriate to reach the merits. In no circumstances, moreover, would the Division of Administrative Hearings be the appropriate forum in which finally to settle a question of ownership of real property.

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

That the Department of Transportation dismiss the petition filed in this matter. Sally Malone v. Department of Transportation and Cecil G. Costin, Case No. 81-1621.

DONE and ENTERED this 29th day of April, 1983, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 1983.

COPIES FURNISHED:

Sally Malone

Post Office Box 57

Port St. Joe, Florida 32456

Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

Paul A. Pappas, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

Cecil G. Costin, Jr.

413 Williams Avenue

Port St. Joe, Florida 33456

Docket for Case No: 81-001621

Orders for Case No: 81-001621