STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT AND ANNA KASZONI, )

)

Petitioners, )

)

vs. ) CASE NO. 88-0550

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Don W. Davis, on December 15, 1988, in West Palm Beach, Florida. The following appearances were entered:

APPEARANCES

For Petitioners: Ann Porath, Esquire

12773 West Forest Hill Boulevard Suite 209

West Palm Beach, Florida 33414

For Respondent: Vernon L. Whittier, Esquire

Haydon Burns Building

605 Suwannee Street, MS. 58

Tallahassee, Florida 32399-0458 BACKGROUND

This matter began when Petitioners, recipients of relocation assistance when their property was acquired by the State of Florida in conjunction with construction of Interstate Highway 75, sought additional relocation assistance from Respondent on the basis that previous assistance was not adequate and had been determined improperly. Upon Respondent's denial of their request, Petitioners sought a formal administrative hearing. This proceeding ensued.

At the final hearing, Petitioners presented the testimony of two witnesses.

Respondent presented the testimony of five witnesses and 15 evidentiary exhibits. Proposed findings of fact presented by the parties are addressed in the appendix to this recommended order.

Based upon all of the evidence, including the candor and demeanor of the witnesses who testified, the following findings of fact are determined:

FINDINGS OF FACT

1. Petitioners are husband and wife. They were required to locate to another home due to the acquisition of right-of-way by Respondent for construction of Interstate Highway 75 in Collier County, Florida. It is undisputed that Petitioners are eligible displacees under the federal government's Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, and are displaced persons entitled to relocation assistance within the definition of 49 Code of Federal Regulations, Subtitle A, Section 25.2(f).

   
   

2. Petitioners and their children resided in two of three travel trailers which they owned on a five acre tract of land in a rural, wet area of Collier County, Florida. Both Petitioners were employed. He drove daily approximately

   80 miles each way to his job as a taxi cab operator in Fort Lauderdale, Florida. She worked part time as a store clerk in a business near their home.

   
   

3. On February 23, 1986, an employee of Respondent completed a household survey questionnaire regarding Petitioners' residence. The purpose of the questionnaire was to decide requirements governing assistance to be provided them in view of their future relocation to other housing as a result of their displacement by the interstate highway construction. The survey establishes that Petitioners owed $2,000 on their property, and that replacement housing was required for the husband, wife and two children of opposite sexes. The husband signed the survey instrument.

   
   

4. Petitioners' property had an appraised value of $25,950. Of this amount, $17,550 reflected land value and $8,400 was the value of improvements. Petitioners initially received $25,950 when their property was acquired by Respondent through eminent domain proceedings.

   
   

5. In the absence of comparable, utility equipped acreage in Collier County where applicable zoning restrictions would permit the placement of mobile homes, Respondent upgraded the type of replacement housing used to determine the amount of relocation assistance due to Petitioners. The effect of such an upgrade, termed "last resort housing," is to permit a higher limit on the payment to be made by Respondent to Petitioners for replacement housing. In this case, the upgrade consisted of Respondent's use of home sites with permanent houses on them in the calculation of the payment to be made to Petitioners.

   
   

6. Respondent used three comparable parcels of property in the Golden Gate subdivision near Naples, Florida. The highest priced property was $53,900.

   This area is approximately 30 miles West of the site of the land previously occupied by Petitioners. A determination of comparable property is generally limited to a 50 mile radius of the dislocatee's property and, when possible, closer to the job of the primary income producer in the family. In this instance, no properties were available in the 50 mile radius to the East of Petitioners' property in the direction of Fort Lauderdale due to the immediate proximity of the Florida Everglades. On April 21, 1986, the comparable properties were selected, approved and determined by Respondent's staff to comply with the relocation program's requirements that comparable housing parcels used to compute the replacement housing payment meet decent, safe and sanitary living standards. Those standards require that comparable properties provide a minimum living area for the number of affected inhabitants, as well as appropriate utilities.

7. The process of computing a replacement housing payment requires that the property appraisal of the dislocatee's property, including improvements less depreciation, be subtracted from the highest priced comparable to provide the amount due to the displaced property owner. Due to the condition of Petitioners' travel trailers, septic tank and well, those items were depreciated

   40 per cent which resulted in a value of $4,279. Respondent rounded this amount off to $4,300. This final amount plus the land value of Petitioners' property of $17,500 came to a total of $21,800 for purpose of determining an amount to be subtracted from the highest priced comparable property value of $53,900. The result of this subtraction, or $32,100, reflected the amount of the replacement housing payment which Respondent determined to be due to Petitioners. The net effect of Respondent's depreciation of Petitioners' property improvements resulted in a reduction of the amount to be subtracted from the highest priced comparable property value which, in turn, increased the amount of the replacement housing payment.

   
   

8. Dislocatees may acquire new property wherever they wish without regard to the location of comparable properties used to calculate their relocation assistance payment, although such comparable properties must be available to dislocatees who desire to purchase them. Petitioners contracted with a builder to construct a home in Palm Beach County. After payment by them of $4,000 to this individual, he vanished with their money.

   
   

9. Subsequent to the experience with the unreliable West Palm Beach builder, Petitioners indicated to Respondent a desire to have their relocation payment computed again, this time on the basis of replacement housing in Broward County, Florida. Three new comparables were selected by Respondent's staff in that county. As had occurred in Collier County, Respondent's staff encountered difficulty finding comparable acreage property due to the lack of availability of such property which would meet restrictions imposed on such acreage with mobile homes. The result was that Respondent's staff determined no comparable acreage to be available in Broward County, Florida. Palm Beach County, Florida, was also searched by Respondent staff for comparable properties, but this effort was abandoned as a result of Petitioners expressed greater desire to relocate in Broward County.

   
   

10. On June 26, 1987, three residences were selected by Respondent from the Pembroke Pines area Broward County to serve as comparables in the computation of the amount of the relocation housing payment. The evidence establishes that these homes were either "double wide" trailers or permanently affixed modular homes. These properties were selected because the comparables used in Collier County were no longer available. These residences were an "up grade" from the small travel trailers inhabited by Petitioners.

    
    

11. Since the selling value of the highest priced Broward County comparable was only $49,500, the result, after subtraction of the estimated value of $21,800 for Petitioners' property, was a housing payment of $27,700. Since this payment amount is less than the amount originally computed by Respondent's staff, its use is prohibited by relocation program guidelines. Therefore, the previously computed greater amount of $32,100 for the area near Naples, Florida, became the final replacement housing payment.

    
    

12. The evidence establishes that Petitioners filed an application and claim for replacement housing payment on March 23, 1987, and were paid $32,100 by state warrant dated April 28, 1987. Advanced moving expenses of $400 were paid to them by state warrant dated September 9, 1987. A state warrant for

    $1,497.26 to reimburse incidental expenses was issued to Petitioners on December

    1, 1987. In total, it is found that Petitioners received $59,947.26 when the complete amount of relocation expense payments is added to the $25,950 amount also paid to them by the State of Florida in initially acquiring their property.

    
    

13. Petitioners moved from their property in Collier County during July or August 1987. Petitioners located a house in West Palm Beach, Florida, but were unable to meet mortgage qualifications. However, after a high down payment with approximately half of the funds received from Respondent, they purchased the home. The amount of indebtedness remaining on the home is slightly less than

    $60,000 and has created a financial problem for Petitioners. Their desire is for Respondent to pay off the remaining mortgage amount or provide an acre of land with trailers in which to live.

    
    

14. Respondent is authorized to administer the federal government's Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970. Respondent also administers a corresponding relocation aid program established by state law. Rules governing the state program are almost a verbatim duplicate of the federal program. Respondent's right-of-way procedures manual, comprised of state rules governing nonfederal relocation assistance, and federal regulations are used in administration of federal relocation aid projects.

    
    

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding, and the parties thereto, pursuant to subsection 120.57(1), Florida Statutes.

    
    

16. The federal regulations which are pertinent to this case, and used by Respondent in administering the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (the Uniform Act), are set forth in portions of Part 25, Title 49 of the Code Of Federal Regulations. Respondent is authorized by Section 421.55, Florida Statutes, to comply with the Uniform Act in construction projects involving federal financial assistance. Respondent's procedures for administering the Uniform Act are set forth in the Department of Transportation's Right Of Way Procedures Manual, adopted as a rule by reference in Chapter 14-15, Florida Administrative Code.

    
    

17. Title 49 CFR, Subtitle A, Section 25.2(e) requires that comparable replacement dwellings must be decent, safe and sanitary. Further, such dwellings must meet applicable housing and occupancy codes; be structurally sound, weather tight, and in good condition; contain adequate lighting and a safe electrical system; contain an adequate heating system, potable hot and cold water and sewage drainage systems; and be adequate in size with respect to the number of occupants to be accommodated.

    
    

18. Title 49 CFR, Subtitle A, Section 25.2(c) also requires that the replacement dwelling be functionally similar to the original; be within the financial means of the displacee and currently available; be generally not less desirable than the previous location in regard to public utilities, commercial and public facilities; and be reasonably accessible to the person's place of employment. The replacement site is required to be typical in size for residential development with normal, customary landscaping.

    
    

19. Respondent's right of way procedures manual sets forth the Rules governing the state relocation program, which are also used in conjunction with federal regulations on federal relocation projects. Procedures RA 1-3 and RA 4-

    IA of that manual set forth virtually identical requirements to those of Title

    49 CFR, Subtitle A, Section 25.2 (c) and (e) noted above.

    
    

20. In all respects, with exception of the requirement that replacement comparable dwellings be reasonably accessible to the displacee's employment, Respondent's determinations conformed to applicable federal and state legal requirements. Obviously, the location of a dwelling which adds 30 miles to the already lengthy distance of 80 miles driven to and from Fort Lauderdale by one of Petitioners, the husband, is not comparable as to accessibility of that house to his employment. However, since additional comparables without this flaw were later selected in the Broward County area which, after computations, would have actually provided a smaller relocation assistance payment to the dislocatees, no prejudice has inured to Petitioners by payment to them of the initially calculated larger sum. Further, such payment of the larger sum in the instant case was in conformance with Respondent's procedure 4A-I and provisions of Title

    49 CFR, Subtitle A, Section 25.7.

    
    

21. While Petitioners' predicament of an oppressive mortgage on their present home is lamentable, their choice of a dwelling is not the basis for determining the amount of compensation to be awarded them for replacement housing.

    
    

22. Unless denial of the additional relocation assistance requested by Petitioners could be characterized as an arbitrary and capricious exercise of the authority delegated to Respondent by federal regulations, it should be sustained. Department of Transportation v. Groves-Watkins, 13 FLW 462, (Fla. August 18, 1988)

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered denying Petitioners' claim for

further payment.

DONE AND ENTERED this 18th day of January, 1989, in Tallahassee, Leon County, Florida.

DON W. DAVIS

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this 18th day of January, 1989.

APPENDIX

The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties.

Petitioner's Proposed Findings

1. 2. Unnecessary to result reached.

1. Addressed.

2. Unnecessary to result reached. Not supported by weight of the evidence.

5-6. Unnecessary to result reached.

1. Self-serving assertion; not supported by the weight of the evidence.

2. Addressed.

3. Unnecessary to result reached. 10-14. Addressed.

1. Adopted by reference.

2. Addressed.

3. Unnecessary to result reached.

4. Addressed.

5. Rejected, not supported by weight of the evidence.

6. Rejected as a conclusion or recommendation, not a factual finding.

Respondent's Proposed Findings

1-5. Addressed in part; remainder unnecessary to result.

COPIES FURNISHED:

Vernon L. Whittier, Jr., Esquire Haydon Burns Building

605 Suwannee Street, M.S. 58

Tallahassee, Florida 32399-0458

Ann Porath, Esquire

12773 West Forest Hill Boulevard Suite 209

West Palm Beach, Florida 33414

Thomas H. Bateman, 111, Esquire General Counsel

Department of Transportation

562 Haydon Burns Building Tallahassee, Florida 32399-0450

Honorable Kaye N. Henderson Secretary

Haydon Burns Building

Attn: Eleanor F. Turner, M.S. 58 605 Suwannee Street

Tallahassee, Florida 32399-0450

Docket for Case No: 88-000550

Orders for Case No: 88-000550