ALAN R. FILSON, )
vs. ) CASE NO. 88-4120
Respondent. )
The final hearing in this case was held on October 27, 1988, in Tampa, Florida, before Donald D. Conn, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented as follows:
For Petitioner: A. Broaddus Livingston, Esquire
For Respondent: William C. McLean, Esquire
Tampa-Hillsborough County Expressway Authority (Respondent) on July 8, 1988, for the Northwest Hillsborough Expressway is unreasonable or arbitrary, and has the effect of denying Alan R. Filson (Petitioner) of a substantial portion of the beneficial use of certain property he owns within the limits of said map. At the hearing, Petitioner testified on his own behalf, and introduced twenty-four exhibits by stipulation of the parties. One exhibit was introduced by stipulation on behalf of the Respondent.
The transcript of the final hearing was filed on December 8, 1988, and the parties were allowed to file proposed recommended orders, including proposed findings of fact, within ten days thereafter. Neither party timely filed a proposed recommended order.
Petitioner is the general partner of Marstof, Ltd., which owns certain property located at Section 24, Township 28, Range 17, Hillsborough County, Florida, and consisting of approximately thirty acres. Its specific location is on the west side of Twelve Oaks Boulevard, and 400 feet north of Heatherfield Drive.
Respondent is an expressway authority created under Chapter 348, Florida Statutes, with eminent domain authority pursuant to Chapter 74, Florida Statutes.
The property in question is surrounded on the north by a railroad, vacant land, and a strip of commercial property. To the east and west is vacant land, while to the south are single family residences, with some environmentally sensitive areas. There are some trees on the site, but there is no significant vegetation.
Petitioner signed a contract to purchase the subject property for
$953,000 on September 27, 1985. The property was zoned "Agricultural" at that time, and since Petitioner intended to develop this property for residential uses, he immediately began preliminary lot layout for marketing, and preliminary layout of a proposed waste water treatment facility. These preliminary layouts were submitted to the Hillsborough County Department of Development Coordination in December, 1985.
In early 1986, surveys were ordered, a well as soils and environmental studies, and final subdivision design began. By mid-1986, side and environmental plans, as well as plans for a temporary waste water treatment plant were submitted to state and local permitting agencies. In the fall of 1986, revised plans were prepared and submitted, as required. Petitioner began discussions in December, 1986, with General Homes Corporation for their purchase of all residential lots on the subject property. On December 22, 1986, Petitioner received a letter of intent from General Homes, and on March 4, 1987, General Homes executed a contract to purchase all lots in Petitioner's proposed subdivision for a total of approximately $2.5 million.
On March 9, 1987, Petitioner filed an application for rezoning of the subject property from "Agricultural" to "Planned Development, Housing" This rezoning was approved on June 23, 1987. However, General Homes had canceled their contract with Petitioner on or about March 25, 1987. Other developers did express an interest in purchasing Petitioner's lots, but no subsequent purchase contract was executed.
As part of the rezoning approval, Petitioner conveyed a portion of the subject property, without monetary consideration, to the County for an extension of Twelve Oaks Boulevard, as well as an additional portion used for environmental mitigation.
Following approval of his rezoning application, Petitioner filed his revised site plan and request to use an interim waste water treatment plant, to which there was no objection.
By October 10, 1987, Petitioner had obtained all necessary approvals and permits, as well as the rezoning of the subject property, to begin pulling permits for development of this residential subdivision consisting of 128 approved lots with a wholesale value of approximately $2.68 million, or $21,000 per lot. He did not begin development, however, because of concerns about the possible impact of the Northwest Expressway on his development. Although no map reservation had been filed, it appeared to Petitioner that it was likely that the proposed route of the Expressway would be through his property. He did not proceed because he was concerned about the marketability of homes next to, or near, the eventual site of the Expressway, the possibility of default on any development loan he would have to obtain if the Expressway was located through
his property, and he also wanted to avoid inflating the eventual cost of the property if it had to be taken through eminent domain.
The map of reservation filed on July 8, 1988 by Respondent shows that the Expressway right of way crosses directly through the subject property in an east-west direction. The right of way varies from approximately 250 to 290 feet in width.
To the south of the Expressway right of way is a portion of the subject property owned by Petitioner of approximately 10 acres on which 34 residential lots could be located. To the north of the right of way is an area that the parties agree is not developable because the Expressway will cut off all access to this northern parcel.
The developable southern parcel of approximately 10 acres cannot be profitably developed with only 34 lots. Petitioner testified that no more than
34 lots can be developed on this parcel, and this testimony is supported by a revised site prepared by his consulting engineer and land surveyor. There is no evidence to the contrary. It is not economically feasible to develop this southern parcel due to the original land cost, and the deflating impact which the location of the Expressway next to this parcel will have.
Petitioner has invested a total of approximately $1.15 million in the acquisition of the subject property, including its rezoning, site plans, and obtaining all necessary permits and approvals to commence development. He estimates that he could reasonably receive $2.75 million through the bulk sell- out of 128 finished lots at current market conditions, if it were not for the proposed location of the Expressway through his property.
Due to the filing of the map of reservation by Respondent for the Northwest Expressway, Petitioner cannot proceed with any portion of the development of residential lots on the subject property. The only evidence in the record is that Petitioner has been deprived of a substantial portion of the beneficial use of the subject property.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties, and the subject matter in this cause. Sections 120.57(1) and 337.241(3), Florida Statutes.
Section 337.241(3), Florida Statutes, was amended by Chapter 88-168, Laws of Florida, to read as follows:
Upon petition by any property owner of record within the limits of the map (of reservation) alleging that such property regulation is unreasonable or arbitrary and that its effect is to deny a substantial portion of the beneficial use of such property, the department (of transportation) or expressway authority shall hold an administrative hearing in accordance with the provisions of chapter
120. When such a hearing results in
an order finding in favor of the petitioning property owner, the department or expressway
authority shall have 180 days from the date of such order to acquire such property,
to amend the map, to withdraw the map, or to file appropriate proceedings. Either party may seek appellate review.
An Expressway Authority, such as Respondent, is authorized to file a map of reservation for any transportation facility or transportation corridor within its jurisdiction, and such map shall delineate the limits of the corridor or proposed right of way. Upon recording of the map of reservation, no development permits shall be granted by any governmental entity for a period of five years from the recording for any new construction, or renovation of existing nonresidential structure that exceeds 20 percent of the appraised value of the structure. Renovation or improvements on existing residential structures are not precluded, as long as the use continues to be exclusively residential. Sections 337.241(1) and (2), Florida Statutes, as amended. The constitutionality of these provisions was recently upheld by the First District Court of Appeal in the case of Joint Ventures, Inc. v. Department of Transportation, 519 So.2d 1069 (Fla. 1st DCA 1988), but the question of the constitutionality of Sections 337.241(2) and (3) was further certified to the Florida Supreme Court for review, and remains under review. It is, of course, inappropriate to examine the constitutionality of the statutory framework applicable in this case since it has been upheld by the District Court and is under further review by the Supreme Court. The parties have not requested that this matter be held in abeyance until this issue is resolved by the Supreme Court, and therefore this case proceeds with the presumption of the statutes' constitutionality
There is no dispute between the parties in this case that the Tampa- Hillsborough County Expressway Authority is an expressway authority as referred to in Section 337.241, or that Petitioner is the owner of the property in question. The Respondent has filed a map of reservation which Petitioner contends is unreasonable or arbitrary, and denies him a substantial portion of the beneficial use of his property.
The preponderance of the evidence in this case establishes that the map of reservation filed by the Respondent does deprive Petitioner of a substantial portion of the beneficial use of his property, and as applied to the Petitioner, the map of reservation is unreasonable because it amounts to a confiscation of his property. The Petitioner has been left with no reasonable use of his property, except to let it remain vacant or develop it at a financial loss. These are unreasonable alternatives in view of the considerable actions which Petitioner had taken, prior to the filing of the map of reservation, to ready this property for development. Accord Sloan, et al. v. St. Lucie County Expressway Authority, 28 Fla. Supp. 2d 252, DOAH Case Nos. 87-2279 & 87-2517, December 2, 1987. See also Key Haven Associated Enterprises, Inc. v. Board of Trustees of the Internal Improvement Fund, 427 So.2d 153 (Fla. 1982).
Based upon the foregoing, it is recommended that the Respondent enter a Final Order granting Petitioner the relief sought, and within 180 days either acquire Petitioner's property, amend the map, withdraw the map, or file appropriate proceedings.
DONE AND ENTERED in Tallahassee, Leon County, Florida, this 21st day of December, 1988.
DONALD D. CONN
Filed with the Clerk of the Division of Administrative Hearings this 21st day of December, 1988.
A. Broaddus Livingston, Esquire One Harbour Place
William C. McLean, Esquire 707 Florida Avenue
