STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DANNY M. AND SHIRLEY A. MELVIN, )

)

Petitioners, )

)

vs. ) CASE NO. 88-4532

)

TAMPA-HILLSBOROUGH COUNTY )

EXPRESSWAY AUTHORITY, )

)

Respondent. )

)

RECOMMENDED ORDER

The final hearing in this case was held on October 28, 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: Danny M. Melvin, pro se

2905 West North Street Tampa, Florida 33614

For Respondent: William C. McLean, Esquire

707 Florida Avenue

Tampa, Florida 33602

The issue in this case is whether the map of reservation filed by the

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 Danny M. and Shirley A. Melvin (Petitioners) of a substantial portion of the beneficial use of certain property they own within the limits of said map. At the hearing, Petitioner Danny M. Melvin testified on his own behalf, and introduced two 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 19, 1988, and the parties were allowed to file proposed recommended orders, including proposed findings of fact, within ten days thereafter. However, neither party timely filed a proposed recommended order.

FINDINGS OF FACT

1. Petitioners own certain property located at Section 1, Township 28 South, Range 17 East, in Hillsborough County, Florida, consisting of approximately 2.06 acres. Its specific location is in the Carrollwood area of northwest Hillsborough County, fronting on Ehrlich Road. Petitioners' property is located within the right of way of the Northwest Hillsborough Expressway as shown on the map of reservation filed by Respondent on July 8, 1988.

2. Respondent is an expressway authority created under Chapter 348. Florida Statutes, with eminent domain authority pursuant to Chapter 74, Florida Statutes.

   
   

3. The subject property was purchased by the Petitioners on December 19, 1977 for a total purchase price of $13,700, and was refinanced in 1983 at 12% interest on a 12 year mortgage in the amount of $40,000. The monthly payment on this mortgage is $525, and taxes in 1987 were $383.64, but are proposed to increase to $697 for 1988.

   
   

4. The property in question has been zoned "Agricultural" at all times material hereto, and is undeveloped.

   
   

5. Petitioners originally purchased this property to build their home on, but in fact they purchased a home in Tampa, Florida, and have held this property for investment. In 1983 and 1984, they listed this property for sale, and received a contract to purchase the property for $235,000, contingent upon its rezoning for multifamily use. When the proposed location for the Expressway began to be a matter of public knowledge in 1985, however, the buyers under this contract to purchase backed out, and the property has never been rezoned.

   
   

6. This property has not been listed for sale since 1985 due to the Petitioners' feeling that they would not be able to sell it because of the possibility of the Expressway being located in the area.

   
   

7. Petitioners attended a public hearing held by Respondent on May 12, 1988, at which time the specific location and right of way for the Expressway was available for review and was discussed.

   
   

8. On July 12, 1988, four days after the map of reservation was filed by the Respondent, Petitioners obtained a construction permit from Hillsborough County to build a residence on the subject property. This permit is contingent upon the payment of certain environmental fees, which have not yet been paid by Petitioners. They obtained the approval for their construction loan in the amount of $78,000 in October, 1988 in order to proceed with plans to build a residence on this property, but no construction had begun and the loan had not been finalized at the time of hearing. Nevertheless, these actions evidence the present intention and desire of the Petitioners to develop the subject property as their new residence.

   
   

9. Petitioner Danny M. Melvin testified that he and his wife have considered moving from Florida, and locating employment elsewhere, although they have no specific offers or opportunities. They feel, however, that it is not financially feasible for them to move and relocate as long as they are still making mortgage payments on this property. Therefore, they desire that the Respondent purchase their property as soon as possible.

   
   

   CONCLUSIONS OF LAW

   
   

10. 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.

11. 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.

    
    

12. 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 structures that exceeds 20% 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.

    
    

13. 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 statutes' presumption of constitutionality.

    
    

14. 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 Petitioners are the owners of the property in question. The Respondent has filed a map of reservation which Petitioners contend is unreasonable or arbitrary, and denies them a substantial portion of the beneficial use of their property.

    
    

15. The preponderance of the evidence in this case established that the map of reservation filed by the Respondent does deprive Petitioners of a substantial portion of the beneficial use of their property, and as applied to them, the map of reservation is unreasonable because it amounts to a confiscation of the subject property. The Petitioners have been left with no reasonable use of this property, except to let it remain vacant and continue to make mortgage and property tax payments. This is an unreasonable alternative in

view of the intention and desire of the Petitioners to build a new residence on the subject property, which has been effectively precluded by the filing of the map of reservation. 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).

RECOMMENDATION

Based upon the foregoing, it is recommended that the Respondent enter a Final Order granting Petitioners the relief sought, and within 180 days either acquire the Petitioners' property, amend the map, withdraw the map, or file appropriate proceedings.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 10th of January, 1989.

DONALD D. CONN

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1050

Filed with the Clerk of the Division of Administrative Hearings this 10th day of January, 1989.

COPIES FURNISHED:

Danny M. Melvin

2905 West North Street Tampa, Florida 33614

William C. McLean, Esquire 707 Florida Avenue

Tampa, Florida 33602

Ray Speer, Executive Director Tampa-Hillsborough County

Expressway Authority

412 East Madison, Suite 802 Tampa, Florida 33602

Docket for Case No: 88-004532

Orders for Case No: 88-004532