STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

1. W. MAYHEW and BETA )

   DEVELOPMENT COMPANY, INS., )

   )

   Petitioner, )

   )

   vs. ) CASE NO. 86-1587

   ) DEPARTMENT OF TRANSPORTATION )

   )

   Respondent. )

   )

   
   

   RECOMMENDED ORDER

   
   

   Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William B. Thomas, held a formal administrative hearing in this case on September 19, 1986, in Jacksonville, Florida. The transcript was filed on October 16, 1986, and the parties were allowed 10 days thereafter to submit proposed findings of fact and conclusions of law. These were received and have been considered. A ruling has been made on each proposed finding of fact in the Appendix to this Recommended Order.

   
   

   APPEARANCES

   
   

   For Petitioner: Theresa M. Rooney, Esquire

   1550 Florida Bank Tower Jacksonville, Florida 32202

   
   

   For Respondent: Paul J. Martin, Esquire

   Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32301-8064

   
   

   The Petitioners, E. W. Mayhew and Beta Development Company, Inc., requested a formal administrative hearing to challenge a Map of Reservation for a proposed right-of-way prepared by the Department of Transportation, and approved and recorded by the Council of the City of Jacksonville, Duval County, Florida. The issue presented is whether the regulation of a portion of the Petitioner's property by the Map of Reservation is unreasonable or arbitrary and its effect is to deny to the Petitioners a substantial portion of the beneficial use of such property.

   
   

   FINDINGS OF FACT

   
   

   1. On April 16, 1986, in conjunction with the preparation of plans for widening Southside Boulevard (State Road 115) in Jacksonville, Florida, the Department recorded a Map of Reservation pursuant to Section 337.241(1), Florida Statutes, which encompassed a portion of the Petitioner's property. It was stipulated by the parties that the Department complied with the necessary notice, filing, and approval requirements of Section 337.241(1), Florida Statutes.

   2. The property in question is located in Jacksonville, adjacent to the east side of Southside Boulevard at the intersection of Hogan Road. It is zoned commercial, but there is currently no development on the east side of Southside Boulevard in the immediate vicinity of Hogan Road. The west side of Southside Boulevard is developed commercially for its entire length. This property consists of a tract of land approximately 892 feet long by 15 feet deep which lies adjacent to a strip of land approximately 100 feet deep which is immediately adjacent to Southside Boulevard.

      
      

   3. The Department determined that there existed a need to widen Southside Boulevard from a two lane highway to a four lane, limited access facility accompanied by two one-way, parallel service roads.

      
      

   4. In designing the widening of this highway, the Department determined that the minimum right-of-way corridor width for the facility should be 250 feet. This minimum width was established by using official rules and criteria established by the Department, as well as the Rules of the American Association of State Highway Officials and those of the Florida Department of Highway Safety and Motor Vehicles.

      
      

   5. Presently, the Department has a 200 foot wide right-of-way corridor. Because of the requirement for at least 250 feet of width, the Department needed to take steps to assure that the extra 50 feet would be available by use of a Map of Reservation.

      
      

   6. The Department determined that land should be reserved on the east side of the right-of-way corridor for the needed 50 feet because the east side of Southside Boulevard in the area in question is undeveloped, while the west side is substantially developed. This was an economic decision based upon an alignment of the right-of-way corridor that would have the least economic impact on the acquisition of the additional right-of-way.

      
      

   7. The Department did not place all of the Petitioner's property under the Map of Reservation. Only the 50 feet required for the widening project is affected by the regulation.

      
      

   8. The owner of the subject property is an individual, E. W. Mayhew, and a corporation, Beta Development Company, Inc. The property was purchased in 1982 for development as office/warehouse space. The Petitioner E. W. Mayhew knew that the property was affected by a Limited Access Line across the property, which was established by the Department in the 1960's, well before the Petitioner's purchase of this property. Despite the presence of this Limited Access Line, the Petitioner did not realize until 1984 that the Line informed potential buyers that direct access to Southside Boulevard from the subject property would be eliminated eventually.

      
      

   9. Although it spent more than $43,000 to develop plans to promote its property, the Petitioner had not applied to the City of Jacksonville for any of the permits that are required in order to build its proposed office/warehouse project by the time the Map of Reservation was filed.

      
      

      CONCLUSIONS OF LAW

      
      

   10. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this case, pursuant to Section 120.57(1), Florida Statutes.

   11. Section 337.241(1), Florida Statutes, authorizes the Department of Transportation to prepare and file a Map of Reservation delineating the limits of any proposed right-of-way for eventual road widening or for the initial construction of a road.

       
       

   12. Section 337.241(3), Florida Statutes, provides:

       
       

       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.

       shall hold an administrative hearing When such a hearing results in an order finding in favor of the petitioning

       property owner, the department . . shall have 150 days from the date of such order to acquire such property or file appropriate proceedings. (emphasis added)

       
       

   13. The regulation of a portion of the Petitioner's property by the Department pursuant to Section 337.241, Florida Statutes, was not unreasonable or arbitrary. The evidence presented at the hearing by the Department demonstrates that careful planning and consideration was given to the selection of the width and location of the right-of-way corridor for use in the widening of Southside Boulevard. The portion of the Petitioner's property that was reserved by the Map of Reservation is a logical and reasonable choice for expansion of the right-of- way corridor. The 50 foot wide strip of the Petitioner's land that was reserved is the minimum amount of land needed to widen the road to four lanes accompanied by two service roads, and this widening of the road was demonstrated by the Department to be necessary. The selection of the east side of the present right- of-way as the side to be widened by 50 feet is the proper one because the east side of the road is undeveloped, while development has already begun on the west side.

       
       

   14. In order to prevail in this proceeding, the Petitioner must establish that the Department's regulation of its property is unreasonable or arbitrary and that its effect is to deny the Petitioner a substantial portion of the beneficial use of such property. However, the bulk of the Petitioner's evidence was directed at the disruption of its development plans by the proposed widening project, the resulting frustration of the Petitioner's plans to market its project, and the diminution of the Petitioner's land value. No evidence was presented from which it could be concluded that the regulation of a 50 foot strip of the Petitioner's land by the Map of Reservation is unreasonable or arbitrary. Thus the Petitioner has failed to meet its burden of proof as prescribed by Section 337.241(3), Florida Statutes.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter its Final Order

dismissing the Petition in this case.

THIS Recommended Order entered on this 24th day of November, 1986, in Tallahassee, Leon County, Florida.

WILLIAM B. THOMAS

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 24th day of November, 1986.

APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 86-1587

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case.

Rulings on Proposed Findings of Fact Submitted by the Petitioner 1.-4. Accepted.

5.-16. Rejected, as irrelevant because the elements of reasonableness and

arbitrariness were not proved.

17. Rejected, as not a proposed finding of fact.

Rulings on Proposed Findings of Fact Submitted by the Respondent 1.-9. Accepted.

COPIES FURNISHED:

Thomas Drawdy, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

A. J. Spalla General Counsel

Department of Transportation Haydon Burns Building Tallahassee, Florida 32301-8064

Theresa M. Rooney, Esquire 1550 Florida Bank Tower Jacksonville, Florida 32202

Paul J. Martin, Esquire Haydon Burns Building, M.S. 58

Tallahassee, Florida 32301-8064

Docket for Case No: 86-001587

Orders for Case No: 86-001587