Judges: K. N. AYERS
Agency: Contract Hearings
Latest Update: Jun. 21, 1989
Summary: Whether the map of reservation for the proposed Northwest Expressway filed in July, 1988 by the Tampa-Hillsborough County Expressway Authority is unreasonable or arbitrary and denies a substantial portion of the beneficial use of the property including the map of reservation.Right of way reservation map not unconstitutional
89-1981STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
TAMPA DISTRICT BOARD OF MISSIONS,)
)
Petitioner, )
)
vs. ) CASE NO. 89-1981
)
TAMPA-HILLSBOROUGH COUNTY )
EXPRESSWAY AUTHORITY, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings by its designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on May 19, 1989 at Tampa, Florida.
APPEARANCES
For Petitioner: Mark P. Buell, Esquire
First Union Bank Building Suite 1400
501 East Kennedy Tampa, Florida 33601
For Respondent: William C. McLean, Esquire
Post Office Box 21 Tampa, Florida 33601
STATEMENT OF THE ISSUES
Whether the map of reservation for the proposed Northwest Expressway filed in July, 1988 by the Tampa-Hillsborough County Expressway Authority is unreasonable or arbitrary and denies a substantial portion of the beneficial use of the property including the map of reservation.
PRELIMINARY STATEMENT
By letter dated April 4, 1989, the Tampa District Board of Missions, Petitioner, by and through its attorney, requested an Administrative Hearing to determine that the map of reservation filed by the Tampa-Hillsborough County Expressway Authority, Respondent, is unreasonable or arbitrary and denies Petitioner a substantial portion of the beneficial use of its property. At the hearing on May 19, 1989, Petitioner presented one witness and six exhibits were admitted into evidence. There is no dispute regarding the operative facts in this case. Accordingly, proposed findings timely filed which were submitted by the parties are accepted.
FINDINGS OF FACT
In 1983, Petitioner acquired a parcel of land abutting Lakeshore Road and Van Dyke Road in Hillsborough County as a site for a proposed new Methodist Church (Van Dyke Church). The area of this site is approximately 9.3 acres.
Plans were prepared for the development of this site for the Van Dyke Church with Phase One plans completed in 1986. (Exhibit 3).
Petitioner became aware of the hearings involving the location of the Northwest Expressway and Petitioner's representatives attended some of the hearing held by the Expressway Authority.
When it became known that the alignment selected for the Northwest Expressway would pass through Petitioner's property, another site in the same general area was acquired. Plans for the Van Dyke Church were modified to fit onto the newly-acquired property, but the same basic plans were utilized. The new church was completed in December, 1987. Petitioner was starting a new church and did not want to erect a church that would have to be relocated in a few years. Furthermore, by leaving the Van Dyke site vacant, there would not be additional costs to the Expressway Authority which would accrue when the authority acquired the developed property.
The right-of-way for the proposed Northwest Expressway runs almost through the middle of Petitioner's property and occupies nearly half of the total area of the site.
Since the property was of no use to Petitioner as a church site, attempts were made to sell this property. These attempts were unsuccessful due to the now well known alignment proposed for the Northwest Expressway.
The filing of the map of reservation in July, 1988 precluded the use of Petitioner's property for its intended purpose as no building permits could thereafter be obtained for this property.
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 of 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 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.
Petitioner contends that the filing of a map of reservation, insofar as it affects the Van Dyke property, is unreasonable or arbitrary because it precludes Petitioner from using the property for its intended purpose and, in effect, results in a taking of the property. Support for this position can be 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. 4121. R.O. filed Dec. 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 R.O. filed Jan. 10, 1989.
Section 337.241(3) was held to be constitutional in Joint Ventures, Inc. v. Department of Transportation, 519 So.2d 1069, 1071 (FLA 1st DCA 1988), although the issue of constitutionality was certified to the Florida Supreme Court as a matter of great public interest. In Joint Ventures, supra, the court stated:
. . .Subsection 337.241(3) places the double burden upon the affected property owner to show that the challenged regulation 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 the Hearing Officers in the cases above cited, that a map of reservation which effectively precludes the landowner's use of his property is a taking of the property and, therefore, is arbitrary or unreasonable. In fact, the rationale of the court in Joint Ventures, supra, is that Section 337.241 is not unconstitutional because, if the map of reservation results in a taking of the landowner's property, the landowner has a constitutional right to file an inverse condemnation proceeding. Joint Ventures, supra, at p. 1071, citing Ferish Lutheran Church v. Los Angeles County, 482 U.S , 107 S. Ct. 2378, 96 L Ed. 2d 250 (1987) and Key Haven v. Board of Trustees of Internal Improvement, 427 So.2d 153 (Fl 1982).
One evident intent of the statute was to prohibit a landowner from erecting new structures on property included within the map of reservation the value of which would increase the cost of the property when the purchase by a public authority is consummated. While the proscription against issuing building permits does not start until the map of reservation is filed, here Petitioner recognized that the site would ultimately be taken and refrained from erecting a church that would be razed when the Northwest Expressway is built. While this enured to the benefit of the Petitioner in eliminating the inconvenience of replacing the church if built on the Van Dyke site, it also enured to the benefit of the Expressway Authority in reducing the cost of the property vis-a-vis the cost if the Van Dyke church had been built.
The starting point for interpreting a statute is the language of the statue itself; absent a clearly expressed legislative intent to the contrary, that language must ordinarily be regarded as conclusive. Consumer 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 Corporation v. Department of Revenue, 365 So.2d 687 (FL 1987). 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, it is clear that this section establishes procedures to be followed by the Department of Transportation and Expressway authorities in acquiring additional rights-of-way, and for filing maps of reservation. Before these property regulations (maps of reservation) 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 requirements have been satisfied may the authority file 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 five years from the date of recording such map.
Here no evidence was presented that the required procedural steps were not taken or that the selection of the right-of-way corridor was arbitrary or unreasonable. All evidence presented was to the effect that the filing of the map or reservation served to deny Petitioner a substantial portion of the beneficial use of its property.
As the statute specifically says and the court so noted in Joint Ventures, supra, this statute places the double burden upon the affected property owner to show that the challenged regulation is both unreasonable or arbitrary and that it denies a substantial portion of the beneficial use of the property.
At the conclusion of this hearing during closing argument, counsel for Petitioner was asked to state specifically in what manner the map of reservation was alleged to be unreasonable or arbitrary. In response he acknowledged there was nothing to demonstrate why the other alignments missing this property that were not selected were more or less appropriate than the alignment selected. In sum, Petitioner contends simply that the map of reservation constitutes a taking of Petitioner's property and, is therefore, unreasonable or arbitrary. If this position is correct it would be necessary for an affected landowner in these proceedings to show only that filing of the map of reservation constituted a taking of his property.
There is no language in Section 337.241, Florida Statutes to indicate the legislature intended for the Chapter 120 proceeding, there authorized to challenge a map of reservation, to substitute for the landowner's constitutional right to file an inverse condemnation action when actions of a public authority have the effect of depriving him of the beneficial use of his land. It is a non sequitur that a map of reservation which results in a denial of a substantial portion of the beneficial use of the property is per se unreasonable and/or arbitrary.
From the foregoing it is concluded that Petitioner has failed to prove, by a preponderance of the evidence, that the map of reservation for the Northwest Expressway filed by the Tampa- Hillsborough County Expressway Authority is unreasonable or arbitrary. Whether the filing of this map of reservation constitutes a taking of Petitioner's property is a matter for the jurisdiction of the circuit court.
RECOMMENDATION
It is RECOMMENDED that the Petition of the Tampa District Board of Missions to find the map of reservation for the Northwest Expressway, filed by the Tampa- Hillsborough County Expressway Authority, to be unreasonable or arbitrary and that it deprives Petitioner of 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:
Mark P. Buell, Esquire
First Union Building, Suite 1400
501 East Kennedy Tampa, Florida 33601
William J. McLean, Esquire Post Office Box 21
Tampa, Florida 33601
Docket for Case No: 89-001981
Orders for Case No: 89-001981
