Leighow. Respondent also offered its Exhibits 1 and 2A-J, which exhibits were received in evidence. The Prehearing Stipulation filed by the parties on June 1, 1981, was received in evidence as Hearing Officer's Exhibit 1.
Petitioner's request for official recognition was granted as to the following: Public Law 91-646, Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970; Part 25, Title 49, Code of Federal Regulations; and portions of Chapter 4, Florida Department of Transportation Right of Way Manual. The Respondent's request for official recognition was granted as to the following: Federal Highway Administration, Federal-Aid Highway Program Manual, Volume 7, Chapter 5, Sections 1-6; and portions of Chapter 4, Florida Department of Transportation Right of Way Manual.
Both parties have submitted post-hearing proposed findings of fact and conclusions of law. To the extent that any proposed findings of fact have not been adopted in this Recommended Order, they have been rejected as not having been supported by the evidence, as having been irrelevant to the issues under consideration herein, or as constituting unsupported argument of counsel or conclusions of law.
For a period of 24 years, Petitioner, Richard M. Sellars, owned and operated a business under the name of Durable Concrete Products at 1331 - 26th Avenue East, Bradenton, Florida. The business site was leased by Petitioner from Seaboard Coast Line Railroad Company and was used by Petitioner for a concrete products manufacturing plant, principally manufacturing concrete storm sewers and concrete slabs.
The manufacturing facilities at Durable Concrete were located on a triangular-shaped tract of land fronting on 26th Avenue East. The premises were fenced for security. Access to the plant was through a gate and driveway on 26th Avenue East. The flowage of products, materials, and equipment was past the office building and around to the side of the property. The office was utilized for usual administrative and clerical activities and as a checkpoint for trucks entering and leaving the premises. Raw materials were placed on the rear of the property. A materials silo was used for sand and gravel storage and transfer to the concrete mixer, weighing approximately eight tons, which was housed in an open steel unit or shell. Neither the mixer nor the steel shell was attached to the land. Some of the equipment stood on concrete slabs specifically constructed by Petitioner. The manufacturing process for the concrete pipe involved the mixing of raw materials into the rear of the concrete mixer, the pouring of the mix into molds that were in turn moved by a monorail approximately 60-80 feet long into the open air where the pipes were taken from the molds and transported to various drying and storage areas located throughout the premises. The concrete pipe was moved over an extended system of constructed shell roadways by large forklifts. The manufacture of concrete slabs was performed at several different locations to the west of the concrete mixer and office building. Concrete was moved from the mixer to various forms by forklifts. The concrete was poured into forms and allowed to dry. These forms were then removed, creating concrete slabs that were then stockpiled in several separate locations. Throughout the site, various pipes and slabs were stored for individual projects or as inventory for future sales. It was commercially necessary that Petitioner have immediately available several different types of pipe that are not standard sizes and therefore being continuously produced.
In approximately 1970, Petitioner learned that Respondent was locating the route of a proposed limited access highway through the immediate area in which his leasehold was located. Although the exact location of the route remained undetermined, Petitioner regularly conferred with county officials to discover the location of the proposed construction. Petitioner determined that he could not continue in business at his site when the highway was constructed and began to seek an alternative location for his business. In late 1972 or 1973, Petitioner located the closest suitable site with zoning appropriate for a concrete manufacturing plant and purchased two adjacent five-acre sites. Petitioner purchased the property to protect himself from the anticipated expropriation of his leasehold when the highway was ultimately constructed.
Prior to Respondent's acquisition of the right-of-way, Petitioner's business had prospered. It was located at an advantageous location and was well suited for Petitioner's business activities. The property was properly zoned, commercially accessible, and economical in that the rental to the Railroad was less than the taxes assessed upon Petitioner's replacement site. He had no desire to move his business location.
Respondent formally located and designated the highway route and project location on November 12, 1976. On May 1, 1978, Petitioner and the Railroad entered into their next lease agreement. On May 22, 1978, the Respondent commenced formal negotiation with the Railroad for the acquisition of Railroad property, including the Petitioner's leasehold. Petitioner was officially notified of these negotiations on October 16, 1979, upon receipt of the Respondent's form notice. On November 19, 1979, the Secretary of the Florida Department of Transportation, by Resolution, directed the commencement of condemnation of certain lands, part of which included the Petitioner's leasehold. On December 4, 1979, the Railroad gave the Petitioner 30 days' notice that his lease was cancelled because the property was being acquired by the Respondent. On November 12, 1980, Petitioner was directed by Respondent to vacate the right-of-way acquired by Respondent by December 13, 1980. Petitioner's actual move from the site was completed by March 2, 1981.
The right-of-way acquired by Respondent included Petitioner's property fronting on 26th Avenue East, his fence, driveway, office building, and yard improvements. A part of the monorail and slab area were also taken. The acquisition amounted to approximately 40 percent of the leasehold.
Additionally, the acquired area had been used for storage of inventory products, and the taking required moving a large number and variety of these items.
Respondent's own appraiser Klusza determined that the taking rendered the balance of the property entirely useless and adversely affected the interior flow of products and movement of equipment. Additionally, the remainder of the leasehold not acquired by Respondent was, after Respondent's taking, landlocked, i.e., there was no available route for ingress to or egress from the remainder of Petitioner's leasehold after acquisition by Respondent of the right-of-way for the limited access highway.
Petitioner requested relocation assistance from Respondent's representatives. He secured two bids or estimates for relocating his plant from certified movers approved by the Respondent. The Meade House Moving, Inc., estimate was prepared May 21, 1980, and totaled $69,500-72,500. This estimate included moving the office building at a cost of $4,500. The R. E. Johnson & Son, Inc., estimate was prepared June 2, 1980, and totaled $70,285. This estimate included moving the office building at a cost of $5,450. These estimates were submitted to the Respondent's representative but were rejected as they included property located outside the acquired right-of-way.
Respondent's representative made a physical inventory of the concrete pipe located in the acquired right-of-way. Petitioner was then allowed to solicit estimates from three qualified movers for moving the items on the inventory only. These estimates were prepared by Jan Guidry Trucking in the amount of $9,772.88, Gould Trucking, Inc., in the amount of $10,000, and Burns Equipment Company for $9,780. On March 27, 1981, Respondent's representative delivered to Petitioner a completed application and claim for reimbursement of moving costs. This application accepted the lowest of the three estimates as the basis for payment to Petitioner for his self-move of the designated items, in accordance with Respondent's standard policy of permitting the direct payment to a displaced occupant for a self-move equal to the amount of low bid of at
least two certified movers. Petitioner did not sign or submit that application for benefits.
Between February, 1980, and March, 1981, the Petitioner moved his manufacturing plant to his new location. This move was made as a result of Respondent's construction project and the expropriation proceeding brought by the State of Florida. Petitioner was unable to feasibly continue to operate at his prior site due to the acquisition of the right-of-way. Even had Petitioner been able to "re-arrange" the manufacturing shed, monorail, and other equipment, the amount of land remaining after Respondent acquired the right-of-way was not sufficient for Petitioner's needs for flowage of products or storage of inventory. The taking of 40 percent of his leasehold destroyed the utility of his improvements, severely limited the area in which he would have to operate, and rendered his continued operation impossible without regard to the desires of his landlord. In other words, it was not his landlord's cancellation of the lease which caused Petitioner to move but rather the acquisition of part of his leasehold for the highway project.
The disassembly and reassembling of Petitioner's equipment, and the disconnection and reconnection of the electrical and plumbing facilities to the plant equipment were not improvements to his operation. These changes constituted the duplication of the plant and its necessary connections equivalent to his former location.
The actual cost to Petitioner for the relocation of his business was
$75,997.50. This total included moving the office building at a cost of $6,400. The office building constituted real property, even though Petitioner's lease with the Railroad required him to move the building at the time of vacating the premises. Reimbursement or payment for moving the office building is not authorized, but Petitioner is entitled to benefits for the remainder of the equipment and property set forth on the respective bids or estimates.
Petitioner is a displaced person as defined by the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 and applicable federal and state regulations thereunder. The project for which Petitioner's leasehold was acquired in part was a federally financed project for which relocation assistance for displaced persons is mandated under the Act. At the time the property was acquired, Petitioner was an initial occupant as defined under the appropriate guidelines established by the Respondent's right-of-way manual.
Where a displaced person elects to make a self-move, as opposed to utilizing a commercial mover, that person, under the various applicable statutes and regulations, is entitled to receive as direct payment the lowest of the actual cost of the move or the lower of any two bids secured from qualified movers for moving the property, as well as removal and reinstallation expenses at the new business site. The lower of the two qualified bids submitted, after excluding the cost for moving the real property and after taking the low of
$15,000 on the Meade bid that provided a $15,000-18,000 range for moving hundreds of concrete pipes, is the Johnson & Son bid in the amount of $64,835. Each of these bids itemized the property that was to be moved from the former leasehold to the new business location and included the cost for the removal and reinstallation of the equipment.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto. Section 120.57(1), Florida Statutes (1979).
The parties have stipulated that Petitioner is a displaced person as defined by the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, Public Law 91-646, and the federal and state regulations enacted thereunder; that the project for which Petitioner's leasehold was in part acquired was a federally financed project for which relocation assistance for displaced persons is mandated under the Act; that Petitioner is defined as an initial occupant under the appropriate guidelines established by Respondent in implementing the Act; that Petitioner was a tenant on property partially acquired for a right-of-way by the Respondent; that all appropriate notices have been given, one party to the other; and that Petitioner's claim for relocation benefits has been timely made. The dispute between the parties hereto thus involves the extent of relocation benefits to which Petitioner is entitled.
Section 4.1.1, Florida Department of Transportation Right of Way Manual, defines a displaced person as "any person who moves from real property or moves his personal property from real property as a result of the acquisition of the real property, in whole or in part, which is required for a Federal or federally assisted program or project. (e.s.) Respondent readily admits that the phrase "in whole or in part" was intended to mean something but is unable to offer any suggestion as to what that phrase might mean. On the singular occasion the phrase has been considered by a court, it has been judicially construed as recognizing there to be situations in which the partial acquisition of property might entitle the displaced person to the same benefits that the total acquisition of that property would have entitled that person. In Beaird- Poulan Division of Emerson Electric Co. v. Dept. of Highways, State of Louisiana, 441 F. Supp. 866 (W.D. La. 1977), the Court acknowledged the necessity for determining the extent of benefits for a partial acquisition on a case-by-case basis:
The Act does not require that assistance be given to every person who loses a portion of his land to a federally assisted project.
Reimbursement of expenses is due only when it can be shown that the owner moved as a result of the partial acquisition. At 872.
In the case at bar, Respondent took 40 percent of Petitioner's leasehold; Respondent's appraiser deemed the remainder of the leasehold to be entirely useless; Petitioner and Respondent's appraiser agree that it was impossible for Petitioner to operate his business on the remainder of his leasehold; and, after the acquisition of the right-of-way and construction of the limited access highway, there would be no ingress to or egress from the land upon which Respondent expects Petitioner to operate a business. Respondent proffers the following to show that the project did not cause Petitioner to move from his leasehold: Petitioner knew almost 10 years earlier that a road would be located somewhere on the property he leased; Petitioner had the foresight to purchase property on which he could operate his business if necessary; Petitioner's landlord voluntarily terminated Petitioner's lease; and Petitioner's lease was only a month-to-month lease. Not one of these reasons advanced by Respondent justifies applying the phrase "in whole or in part" other than in accord with its logical and obvious meaning. Petitioner's "loose"
arrangement with his landlord as evidenced by his month-to-month lease had been in effect for 24 years. Likewise, Petitioner cannot be penalized for having the foresight to purchase raw acreage to use to keep his business in operation if necessary, particularly where Petitioner's business is the manufacture of concrete products so that land zoned for such industry would be difficult, at best, to find. The cancellation of his lease by the Railroad is immaterial; even without cancellation, Petitioner could not operate his business on the remainder. The reason for Petitioner's move was simply that he was unable to continue to operate his business in a commercially feasible way after the acquisition by the Respondent of a substantial part of Petitioner's leasehold.
Accordingly, it is the project which caused Petitioner to move his personal property from his leasehold even though the leasehold was acquired only "in part." Petitioner has proven his entitlement to benefits for relocation from the entire site since Respondent's acquisition of real property used by Petitioner for a business caused him to move his personal property from other real property not acquired. Section 4.3.3A(2), Florida Department of Transportation Right of Way Manual.
Section 4.3.4, Florida Department of Transportation Right of Way Manual, sets forth those moving expenses which are eligible and those which are ineligible. In accordance therewith, Petitioner is not entitled to the cost of moving the office building located within the acquired right-of-way since that building constituted real property. However, Petitioner correctly seeks moving expenses for all other items of personal property disputed by Respondent, namely, steel shell (main manufacturing plant), monorail, concrete mixers, materials silo, and fence. Petitioner is entitled to the cost of moving all equipment claimed, in addition to the expenses for removal, reinstallation, and reestablishment of those machines, equipment, and appliances used in his business, including the reconnection of utilities to those items of personal property.
As to the amount to which Petitioner has shown entitlement, he has submitted records of his actual cost for performing his self-move and has submitted two bids by qualified commercial movers. Respondent contends that it cannot be sure if the bids submitted were "firm" bids. Respondent's position is without merit. Petitioner did all he could to obtain Respondent's agreement to pay for his relocation in advance of making the move. The move itself took approximately one year, and Respondent requested no information regarding any expenses pertaining to moving the entire business. Since the move is complete and Petitioner is unable to reconstruct his business as it functioned before the move, any doubt regarding the cost of moving any specific item can only be resolved in favor of Petitioner and against Respondent. Petitioner's actual cost for the relocation, after subtracting the $6,400 representing the cost of moving the ineligible office building, is $69,597.50. The Meade bid after using the low figure for that item covered by a range and after deducting the cost of moving the office building is $65,000, and the Johnson & Son bid after deducting the cost of moving the ineligible office building is $64,835. Each of these bids itemized the property that was to be moved from the former leasehold to the new business location, and each included the cost for the removal and reinstallation of the equipment. Where a displaced person elects to make a self-move, he is entitled to receive his actual moving expenses or an amount equal to the low bid or estimate submitted by two qualified moving firms, as well as removal and reinstallation expenses at the new business site. Section 4.3.7, Florida Department of Transportation Right of Way Manual. The lowest of the two commercial bids and of Petitioner's actual expenses is the bid from R.
