Judges: K. N. AYERS
Agency: Authorities
Latest Update: Jun. 21, 1989
Summary: Whether the Map of Reservation filed by Tampa-Hillsborough Expressway Authority in July, 1988 is unreasonable or arbitrary, and has the effect of denying General Homes of Florida, Inc. a substantial portion of the beneficial use of the property owned by General Homes within the limits of the Map of Reservation.Right of way reservation map not unconstitutional
89-1855STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
GENERAL HOMES OF FLORIDA, INC., )
)
Petitioner )
vs. ) CASE NO. 89-1855
)
TAMPA-HILLSBOROUGH COUNTY )
EXPRESSWAY AUTHORITY, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on May 18, 1989 at Tampa, Florida.
APPEARANCES
For Petitioner: Peter J. Winders, Esquire
One Harbor Place Post Office Box 3239
Tampa, Florida 33601
For Respondent: William C. McLean, Jr., Esquire
Post Office Box 21 Tampa, Florida 33601
STATEMENT OF THE ISSUES
Whether the Map of Reservation filed by Tampa-Hillsborough Expressway Authority in July, 1988 is unreasonable or arbitrary, and has the effect of denying General Homes of Florida, Inc. a substantial portion of the beneficial use of the property owned by General Homes within the limits of the Map of Reservation.
PRELIMINARY STATEMENT
By Petition for Administrative Hearing dated March 15, 1989, General Homes of Florida, Inc., Petitioner, seeks a determination that the Map of Reservation filed by the Tampa-Hillsborough County Expressway Authority, Respondent, insofar as it applies to Petitioner's property, is unreasonable or arbitrary, and deprives Petitioner of a substantial portion of the beneficial use of such property.
At the hearing, Petitioner called one witness and 14 exhibits were admitted into evidence. Respondent presented two of the 14 exhibits admitted but presented no live testimony.
Proposed findings have been submitted by Petitioner. Inasmuch as none of the evidence presented by Petitioner was rebutted, these proposed findings of
fact are accepted insofar as they relate to the impact of the reservation map on the property owned by Petitioner.
FINDINGS OF FACT
Petitioner was consolidated back to its parent corporation, and now operates as General Homes Corporation which is a large builder of single family homes in the Tampa area.
The property affected by the Map of Reservation filed by Respondent was acquired by Petitioner in 1985 and comprises some 24 acres which have been platted into 96 lots known as Eastbrook Subdivision.
Eastbrook Subdivision is the third housing development commenced by Petitioner in unincorporated northwest Hillsborough County. The first such subdivision started in 1980 was called Carrollwood Springs. That project was successful and when that development was nearly completed additional property in the vicinity was purchased and the Eaglebrook Subdivision was started. That project was of a similar size to the Carrollwood Springs Subdivision and, it too, was successfully developed and sold.
The success of these developments led Petitioner to the purchase, in August of 1985, of the 24 acres to be developed as the Eastbrook Subdivision which is similar in size to the two former developments.
At the time this purchase was made there were two proposed alignments of the northwest expressway, the Lake Le Clare Alignment and the Railroad Alignment. The Lake Le Clare Alignment, if adopted, would cross the Eastbrook property but the Railroad Alignment would not. Petitioner had closely monitored the selection process throughout 1985 and was under the impression that the Railroad Alignment would be selected for the Expressway.
In 1986, the Expressway Authority selected the Lake Le Clare Alignment. However, the Map of Reservation was not filed until July, 1988.
Petitioner proceeded apace with the development of the Eastbrook Subdivision by opening a sales center and five fully furnished model homes with the intention of selling single family homes in the subdivision. Weekly newspaper ads were run, billboard locations were rented and local realtor parties were hosted to draw more attention, and buyers, to the subdivision.
In fiscal year 1986, General Homes spent some $300,000 in marketing efforts and sold some 56 homes in Eaglebrook closing out that subdivision. Eastbrook was opened and 16 lots were sold there.
In 1987 General Homes spent over $400,000 in sales and marketing but sold and closed only 27 homes in Eastbrook. In fiscal year 1988 General Homes sold and closed 21 homes but incurred a loss of approximately $250,000.
The expressway alignment was well known at this time and the public was aware the alignment would affect portions of the Eastbrook Subdivision.
The Map of Reservation runs through the southern part of the Eastbrook Subdivision and Petitioner devoted most of its attention to developing the northern portion of the subdivision.
However, the impending expressway and its impact on the Eastbrook Subdivision had a dampening effect on sales in this subdivision and in 1987 General Homes lost $231,000 in the Eastbrook Subdivision.
In 1988, General Homes suspended all construction activities, discontinued speculative building and attempted to sell the unsold lots in the subdivision.
In early 1988, General Homes sold ten lots in Eastbrock to Atlantic Homes who built homes on those lots. An option by Atlantic Homes to purchase additional lots was not exercised.
Since the cessation of building activities, General Homes has held the land not sold as unproductive assets in which development costs have accrued, taxes and interest payments continue, but the lots cannot be sold for the erection of a single family home.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.
Section 337.241, Florida Statutes authorizes the Department of Transportation and Expressway authorities to file maps of reservation which, when filed, prohibit any governmental entity from issuing a building permit for new construction of any type or for other than minimum repairs or renovations on existing buildings within the right of way shown on the Map of Reservation. Subsection (3) thereof provides in pertinent part:
Upon petition by an affected property owner 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 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 or file appropriate proceedings.
Here Petitioner has predicated its case upon the premise that a Map of Reservation that precludes the present use of certain property for its intended purpose is arbitrary or unreasonable while for other property, the use of which is not presently changed by the filing of the map, the Map of Reservation is not arbitrary or unreasonable. Support for this position is found in Sloan, et. al
v. St. Lucie County Expressway Authority, 28 Fla. Supp. 2d. 252. DOAH Case Nos. 87-2279 and 87- 2527 Dec. 2, 1987; Filson v. Tampa-Hillsborough County Expressway Authority, DOAH Case 88-4120 No. R.O. filed December 21, 1988; Melvin
v. Tampa-Hillsborough County Expressway Authority DOAH Case No. 88-4532 R.O. filed Jan. 10, 1989; and Park v. Tampa- Hillsborough County Expressway Authority, DOAH Case No. 88-4535 filed Jan. 10, 1989.
This statute was held to be constitutional in Joint Ventures v. Department of Transportation, 519 So.2d 1069, 1071 (FLA 1st DCA 1988) where the court stated:
. . . subsection 337.241(3) places the double burden upon the affected property owner to show that the challenged regulations is both unreasonable or arbitrary and that it denies a substantial portion of the beneficial use of the property.
Neither the statute nor Joint Ventures supra, supports Petitioner's position, and that taken by other Hearing Officers in the cases above cited, that a Map of Reservation that precludes the immediate use of property for its intended purpose constitutes a taking and is, therefore, arbitrary or unreasonable. Nowhere in this statute is evident a legislative intent to have the Chapter 120 proceeding substitute as a preliminary hearing leading to expedited condemnation proceedings.
One evident intent of this statute was to preclude a landowner from erecting new structures on this property which the public authority would have to pay for when the property was condemned for use as a road. While the proscription against issuing building permits does not start until the Map of Reservation is filed, and Petitioner here continued development with knowledge that the expressway right-of-way would go through part of the development, it becomes clear that the filing of the reservation map is the only thing that will prevent continued construction. Had Petitioner ceased or reduced development efforts after learning the expressway would be built on the Lake Le Clare alignment, it is likely to have substantially reduced the losses it incurred in 1987 and 1988.
The starting point for interpreting a statute is the language of the statute itself; absent a clearly expressed legislative intent to the contrary, that language must ordinarily be regarded as conclusive. Consumer Products Safety Commission v. GTE Sylvania, 447 U.S. 102, 100 S. Ct. 2051, 64 L. Ed. 2d 766 (1980).
In statutory construction legislative intent is determined primarily from the language of the statute; and the legislature is assumed to know the meaning of the words and to have expressed its intent by using them in the enactment. SRG Corp. v. Department of Revenue, 365 So.2d 687 (Fl 1978). Inasmuch as a statute is to be taken, construed and applied in the form enacted, the law clearly requires that the legislative intent be determined primarily from the language of the statute, since the legislature must be assumed to know the meaning of the words and to have expressed its intent by the use of the words found in the statute. Thayer v. State, 335 So.2d 815 (FL 1976).
Applying these rules of statutory construction to Section 337.241, that provision establishes procedures for the department and expressway authorities to follow in acquiring rights-of-way for pending road construction and for the filing of maps of reservation. Before the latter may be filed the acquiring agency must advertise and hold public hearings at which affected property owners and all governmental entities in which the right-of-way is located shall receive notice by mail at least 20 days prior to the hearing.
Only after these procedural steps have been taken may the authority record a Map of Reservation.
Upon recording, such map establishes an area of proposed road construction within which development permits shall not be issued for a period of 5 years from the date of recording such map.
See 337.241(3) above quoted provides an affected property owner may petition for a Chapter 120 hearing alleging that such property regulation is unreasonable or arbitrary and that its effect is to deny a substantial portion of the beneficial use of the property.
The property regulation referred to is the Map of Reservation. Accordingly, the Petitioner has the dual burden of proving; (1) the Map of Reservation is unreasonable or arbitrary, and (2) that its effect is to deny a substantial portion of the beneficial use of the property. This burden is to prove the allegations by a preponderance of the evidence. Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (FLA 1st DCA 1977).
No evidence was presented that the decision of the Expressway Authority to select the Lake Le Clare Alignment over the Railroad Alignment of the proposed Northwest Expressway was unreasonable or arbitrary or that the procedures specified in Section 337.241(1) were not followed. As a result, Petitioner has failed to prove, by a preponderance of the evidence, that the property regulation, i.e., the Map of Reservation, is unreasonable or arbitrary. Petitioner having failed to establish the first requirement for relief, it is unnecessary to make the obvious determination that the Map of Reservation denies Petitioner a substantial portion of the beneficial use of its property.
Had the legislature intended for the Chapter 120 proceeding here conducted to merely determine if the filing of the Map of Reservation deprived the landowner of a substantial portion of the beneficial use of his property, it need not have included the provision requiring the landowner to also prove the Map of Reservation is unreasonable or arbitrary.
From the foregoing, it is concluded that General Homes, Inc. has failed to prove, by a preponderance of the evidence, that the Map of Reservation filed for the Northwest Expressway on July, 1988 by the Tampa-Hillsborough Expressway Authority is unreasonable or arbitrary.
RECOMMENDATION
It is RECOMMENDED that the Petition of General Homes of Florida, Inc. for a determination that the Map of Reservation filed by the Tampa-Hillsborough Expressway Authority is unreasonable or arbitrary and that it denies Petitioner a substantial portion of the beneficial use of its property be DENIED.
DONE AND ENTERED this 21st day of June, 1989, in Tallahassee, Leon County, Florida.
K. N. AYERS Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 21st day of June, 1989.
COPIES FURNISHED:
Peter J. Winders, Esquire One Harbor Place
Post Office Box 3239 Tampa, Florida 33601
William C. McLean, Jr., Esquire Post Office Box 21
Tampa, Florida 33601
=================================================================
AGENCY FINAL ORDER
=================================================================
TAMPA-HILLSBOROUGH COUNTY EXPRESSWAY AUTHORITY
GENERAL HOMES OF FLORIDA, INC.,
Petitioner,
vs. CASE NO. 89-1855
TAMPA-HILLSBOROUGH COUNTY EXPRESSWAY AUTHORITY,
Respondent.
/
FINAL ORDER
Pursuant to notice, the Division of Administrative Hearings by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on May 18, 1989 at Tampa, Florida.
APPEARANCES
For Petitioner: Peter J. Winders, Esquire
One Harbour Place Post Office Box 3239 Tampa, Florida 33601
For Respondent: William C. McLean, Jr., Esquire
Post Office Box 21 Tampa, Florida 33601
STATEMENT OF THE ISSUES
Whether the Map of Reservation filed by the Tampa-Hillsborough County Expressway Authority in July, 1988 is unreasonable or arbitrary, and has the effect of denying General Homes of Florida, Inc. a substantial portion of the beneficial use of the property owned by General Homes within the limits of the Map of Reservation.
PRELIMINARY STATEMENT
By Petition for Administrative Hearing dated March 15, 1989, General Homes of Florida, Inc., Petitioner, seeks a determination that the Map of Reservation filed by the Tampa-Hillsborough County Expressway Authority, Respondent, insofar as it applies to Petitioner's property, is unreasonable or arbitrary, and deprives Petitioner a substantial portion of the beneficial use of such property.
At the hearing, Petitioner called one witness and 14 exhibits were admitted into evidence. Respondent presented two of the 14 exhibits admitted but presented no live testimony.
Proposed findings have been submitted by Petitioner. Inasmuch as none of the evidence presented by Petitioner was rebutted, these proposed findings of fact are accepted insofar as they relate to the impact of the reservation map on the property owned by Petitioner.
A Recommended Order was entered by the Hearing Officer on June 21, 1989 denying the Petitioner's Petition and Exceptions to the Conclusions of Law made in the Recommended Order were served on the Respondent by the Petitioner's attorneys on June 30, 1989. The Exceptions again were presented and argued before the Respondent at its scheduled monthly meeting held on August 28, 1989. At that time Respondent adopted Respondent's Exceptions to the Amended Order.
The Hearing Officer's Recommended Order is attached as Exhibit 1 and the Petitioner's Exceptions are attached as Exhibit 2.
FINDINGS OF FACT
Petitioner was consolidated back to its parent corporation, and now operates as General Homes Corporation which is a large builder of single family homes in the Tampa area.
The property affected by the Map of Reservation filed by Respondent was acquired by Petitioner in 1985 and comprises some 24 acres which have been platted into 96 lots known as Eastbrook Subdivision.
Eastbrook Subdivision is the third housing development commenced by Petition in unincorporated northwest Hillsborough County. The first such subdivision started in 1980 was called Carrollwood Springs. That project was successful and when that development was nearly completed additional property in the vicinity was purchased and the Eaglebrook Subdivision was started. That project was of a similar size to the Carrollwood Springs Subdivision and, it too, was successfully developed and sold.
The success of these developments led Petitioner to the purchase, in August of 1985, of the 24 acres to be developed as the Eastbrook Subdivision which is similar in size to the two former developments.
At the time this purchase was made there were two proposed alignments of the Northwest Expressway, the Lake Le Clare Alignment and the Railroad Alignment. The Lake Le Clare Alignment, if adopted, would cross the Eastbrook property but the Railroad Alignment would not. Petitioner had closely monitored the selection process throughout 1985 and was under the impression that the Railroad Alignment would be selected for the Expressway.
In 1986, the Expressway Authority selected the Lake Le Clare Alignment. However, the Map of Reservation was not filed until July, 1988.
Petitioner proceeded apace with the development of the Eastbrook Subdivision by opening a sales center and five fully furnished model homes with the intention of selling single family homes in the subdivision. Weekly newspaper ads were run, billboard locations were rented and local realtor parties were hosted to draw more attention, and buyers, to the subdivision.
In fiscal year 1986, General Homes spent some $300,000 in marketing efforts and sold some 56 homes in Eaglebrook closing out that subdivision. Eastbrook was opened and 16 lots were sold there.
In 1987 General Homes spent over $400,000 in sales and marketing but sold and closed only 27 homes in Eastbrook. In fiscal year 1988 General Homes sold and closed 21 homes but incurred a loss of approximately $250,000.
The expressway alignment was well known at this time and the public was aware the alignment would affect portions of the Eastbrook Subdivision.
The Map of Reservation runs through the southern part of the Eastbrook Subdivision and Petitioner devoted most of its attention to developing the northern portion of the subdivision.
However, the impending expressway and its impact on the Eastbrook Subdivision had a dampening effect on sales in this subdivision and in 1987 General Homes lost $231,000 in the Eastbrook Subdivision.
In 1988, General Homes suspended all construction activities, discontinued speculative building and attempted to sell the unsold lots in the subdivision.
In early 1988, General Homes sold ten lots in Eastbrook to Atlantic Homes who built homes on those lots. An option by Atlantic Homes to purchase additional lots was not exercised.
Since the cessation of building activities, General Homes has held the land not sold as unproductive assets in which development costs have accrued, taxes and interest payments continue, but the lots cannot be sold for the erection of a single family home.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.
Section 337.241, Florida Statutes authorizes the Department of Transportation and Expressway Authority to file Maps of Reservation which, when filed, prohibit any governmental entity from issuing a building permit for new construction of any type or for other than minimum repairs or renovations on
existing buildings within the right of way shown on the Map of Reservation. Subsection (3) thereof provides in pertinent part:
Upon petition by an affected property owner 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 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 or file appropriate proceedings.
Here Petitioner has predicated its case upon the premise that a Map of Reservation that precludes the present use of certain property for its intended purpose is arbitrary or unreasonable while for other property, the use of which is not presently changed by the filing of the map, the Map of Reservation is not arbitrary or unreasonable. Support for this position is found in Sloan, et al
v. St. Lucie County Expressway Authority, 28 Fla. Supp 2d. 252. DOAH Case Nos. 87-2279 and 87-2527 Dec. 2, 1987; Filson v. Tampa-Hillsborough County Expressway Authority, DOAH Case No. 88-4120 No. R.O. filed December 21, 1988; Melvin v. Tampa-Hillsborough County Expressway Authority, DOAH Case No. 88-4532 R.O. filed Jan. 10, 1989; and Park v. Tampa-Hillsborough County Expressway Authority, DOAH Case No. 88-4535 filed Jan. 10, 1989.
This statute was held to be constitutional in Joint Ventures v. Department of Transportation, 519 So. 2d 1069, 1071 (FLA 1st DCA 1988) where the court stated:
. . .subsection 337.241(3) places the double burden upon the affected property owner to show that the challenged regulations is both unreasonable or arbitrary and that it denies a substantial portion of the beneficial use of the property.
One evident intent of this statute was to preclude a landowner from erecting new structures on this property which the public authority would have to pay for when the property was condemned for use as a road. While the prescription against issuing building permits does not start until the Map of Reservation is filed, and Petitioner here continued development with knowledge that the expressway right-of-way would go through that part of the development, it becomes clear that the filing of the reservation map is the only thing that will prevent continued construction.
The starting point for interpreting a statute is the language of the statute itself; absent a clearly expressed legislative intent to the contrary, that language must ordinarily be regarded as conclusive. Consumer Products Safety Commission v. GTE Sylvania, 447 U.S. 102, 100 S. Ct. 2051, 64 L. Ed. 2d 766 (1980).
In statutory construction legislative intent is determined primarily from the language of the statute; and the legislature is assumed to know the meaning of the words and to have expressed its intent by using them in the enactment. SRG Corp. v. Department of Revenue, 365 So. 2d 687 (Fl 1978). Inasmuch as a statute is to be taken, construed and applied in the form enacted,
the law clearly requires that the legislative intent to be determined primarily from the language of the statute, since the legislature must be assumed to know the meaning of the words and to have expressed its intent by the use of the words found in the statute. Thayer v. State, 335 So. 2d 815 (Fl 1976).
Applying these rules of statutory construction to Section 337.241, that provision establishes procedures for the department and expressway authorities to follow in acquiring rights-of-way for pending road construction and for the filing of Maps of Reservation. Before the latter may be filed the acquiring agency must advertise and hold public hearings at which affected property owners and all governmental entities in which the right-of-way is located shall received notice by mail at least 20 days prior to the hearing. Only after these procedural steps have been taken may the Authority record a Map of Reservation.
Upon recording, such map establishes an area of proposed road construction within which development permits shall be issued for a period of 5 years from the date of recording such map.
See 337.241(3) above-quoted provides an affected property owner may petition for a Chapter 120 hearing alleging that such property regulation is unreasonable or arbitrary and that its effect is to deny a substantial portion of the beneficial use of the property.
The property regulation referred to is the moratorium on building and development permits and the prohibition against new structures or improvements to existing structures. The location of the expressway itself, as delineated by the Respondent's Map of Reservation, is not a property regulation. Accordingly, the Petitioner has the dual burden of proving: (1) the denial of development permits is unreasonable or arbitrary, and (2) that its effect is to deny a substantial portion of the beneficial use of the property. This burden is to prove the allegations by a preponderance of the evidence. Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349 (FLA 1st DCA 1977).
From the foregoing, it is concluded that the Petitioner is unable to sell or receive permits to improve its residential building lots within the transportation corridor on Respondent's Map of Reservation; that such regulation is unreasonable as applied to the Petitioner's property, depriving it of a substantial portion of the beneficial use of its property.
RECOMMENDATION
It is RECOMMENDED that the Petition of General Homes of Florida, Inc. for a determination that the Map of Reservation filed by the Tampa-Hillsborough County Expressway Authority is unreasonable or arbitrary and that it denies Petitioner a substantial portion of the beneficial use of its property be GRANTED.
DONE AND ENTERED this 27th day of November, 1989 in Tampa, Hillsborough County, Florida.
WILLIAM P. BISSETT, Chairman
Tampa-Hillsborough County Expressway Authority
COPIES FURNISHED:
Peter J. Winders, Esquire One Harbour Place
Post Office Box 3239 Tampa, Florida 33601
William C. McLean, Jr., Esquire Post Office Box 21
Tampa, Florida 33601
Docket for Case No: 89-001855
Orders for Case No: 89-001855
