STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
FORMAN'S DAIRY PALM NURSERY, )
)
Petitioner, )
)
vs. ) CASE NO. 89-0084
) STATE OF FLORIDA, DEPARTMENT ) OF TRANSPORTATION, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, J. Stephen Menton, held a formal hearing in the above-styled case on November 21-22, 1989, in Fort Lauderdale, Florida.
APPEARANCES
For Petitioner: Charles R. Forman, Esquire
Atkins, Krehl & Forman
320 Northwest Third Avenue Post Office Box 159
Ocala, Florida 32678
H. Collins Forman, Jr. Watson, Clark & Purdy
P. O. Box 11959
Fort Lauderdale, Florida 33339
For Respondent: Charles G. Gardner, Esquire
Department of Transportation 605 Suwannee Street, M.S. 58
Tallahassee, Florida 32399-0458 STATEMENT OF THE ISSUES
The issue in this case is whether the Petitioner is entitled to receive relocation assistance for certain items of moveable personal property, i.e., palm trees, which were outside the area of the taking for a project commonly known as the I-595 Expressway.
PRELIMINARY STATEMENT
On May 5, 1988, Petitioner submitted a claim to the Respondent, Florida Department of Transportation ("DOT"), seeking relocation assistance for the Petitioner's nursery stock. DOT denied the claim. By letter dated July 21, 1988, Petitioner requested reconsideration of the denial of its loss of tangible personal property relocation claim. In a letter dated October 12, 1988 to D. Craig Keneipp, a representative of Petitioner, DOT denied Petitioner's
relocation payment appeal on the grounds that Petitioner did not meet the qualifications of a displaced person under 49 CFR 24.2(f)(2)(iv). The Petitioner timely requested an administrative hearing of the denial in a letter dated December 14, 1988. The case was referred to the Division of Administrative Hearings which noticed and conducted the hearing
At the hearing, Petitioner presented the testimony of three (3) witnesses,
D. Craig Keneipp, Hamilton Forman and John Riggans. Petitioner offered sixteen
(16) exhibits into evidence, all of which were accepted except Petitioner's Exhibit 16, which was marked for identification purposes only. Respondent presented the testimony of Terry E. Morris, Ronna M. Earls and David A. Leigow. Respondent had six (6) exhibits marked for identification, all of which were accepted into evidence except Respondent's Exhibit 3, which was not offered. Petitioner presented rebuttal testimony from Hamilton Forman and D. Craig Keneipp.
A transcript of the proceedings has been filed. Both parties have filed proposed recommended orders. On April 10, 1990, Petitioner filed an amended version of its proposed findings of fact and conclusions of law which corrected certain typographical and/or citation errors. Petitioner also filed an Appendix
which had been inadvertently omitted from its initial proposed findings. On April 20, 1990, Respondent filed an objection to the untimely filing of the amended proposed findings of fact. Since Petitioner's original filing was timely and the amended filing only corrected minor typographical errors, Respondent's objection is overruled. A ruling on each of the parties' proposed findings of fact is included in the Appendix attached to this Recommended Order.
FINDINGS OF FACT
Petitioner, Forman's Dairy Palm Nursery (the "Nursery"), is located in Broward County, Florida and is primarily engaged in the business of raising and wholesaling palm trees.
The area in which the Nursery is located was originally settled by the parents of Hamilton Forman and Charles Forman in approximately 1910. The Forman property was developed into a diversified agricultural enterprise which consisted of approximately seven hundred acres.
The Nursery was incorporated and began operations in approximately 1956 and is authorized to undertake a wide range of business ventures. The evidence did not establish the initial size of the Nursery or the ownership of the land on which the Nursery has conducted operations. Hamilton Forman is the president of the Nursery and is responsible for filing the tax returns and maintaining the other financial records of the corporation. The Nursery is one of many business ventures in which he is engaged. He owns fifty percent (50%) of the Nursery. His brother, Dr. Charles Forman, owns the other fifty percent (50%) of the Nursery. Charles Forman has been more involved in the agricultural and operational aspects of the Nursery.
In approximately 1970, a portion of the Forman property was transferred to one of Hamilton Forman's sons for the purpose of establishing a cemetery. (This property will hereinafter be referred to as the "Cemetery.")
Approximately thirty acres of land which had previously been part of the Nursery was conveyed for the establishment of the Cemetery. The Cemetery was subsequently conveyed to an unrelated conglomerate which continues to operate the Cemetery on property immediately adjacent to the Nursery. (The company which acquired the Cemetery will be referred to as the "Cemetery Company".)
When the property was transferred for purposes of establishing the Cemetery, a deed reservation was inserted in the conveyance which allowed the Nursery to continue to use a portion of the property conveyed (approximately ten acres) until such time as the Cemetery needed it. (This provision will hereinafter be referred to as the "Deed Reservation.") Pursuant to this Deed Reservation, the Cemetery Company can regain use of the property at any time with a one year notification requirement.
The specific provisions of the Deed Reservation were not established. Thus, the exact terms under which the Nursery continued to occupy the property are not clear and there is no evidence as to what rights the Nursery has under the Deed Reservation. Although it appears that approximately ten acres were originally subject to the Deed Reservation, it is unclear how much of the property currently occupied and utilized by the Nursery is actually owned by the Cemetery Company subject to this Deed Reservation.
The property owned by the parents of Hamilton and Charles Forman abutted a road for a distance of approximately seven thousand feet. The road has been at its current location since prior to 1926. The road ultimately became State Road 84. There have been ongoing discussions and negotiations regarding the development of a limited access highway in the State Road 84 corridor for over twenty years. Hamilton Forman has closely followed the various proposals during this time period and has supported the development of such a highway The proposals came to fruition with the current on-going construction of the Interstate 595 ("I-595") expressway in the area of the State Road 84 corridor. The I-595 project is a federally assisted highway project undertaken by DOT. The evidence did not establish when the I-595 project was finally approved to begin acquisitions and construction, but the project was the culmination of years of effort.
In approximately 1984 or 1985, DOT sent notices to all of the land owners in the area of the proposed limited access highway advising them of the potential need to acquire property for the I-595 project. When the location of the project changed, new notices were sent out in late 1985 or 1986.
During this time period, DOT representatives approached Hamilton Forman and the Nursery regarding the acquisitions that were necessary for the I-595 project. Shortly thereafter, a portion of the property occupied by the Nursery was sold to a third party for the construction of a mini-warehouse. (The property sold for the warehouse will hereinafter be referred to as the "DiMar Property.")
The transfer of the DiMar Property was completed on March 6, 1986. Hamilton Forman and Miles Austin Forman were the transferors in that transaction. The DiMar Property consisted of just under four acres. The Nursery occupied approximately three and one half of those acres. At the time of the sale of the DiMar Property, Hamilton Forman anticipated that the I-595 project would impact upon the operation of the Nursery and he recognized the possibility that the Nursery might not be able to continue to operate profitably because of that impact.
No evidence was presented regarding the effect the transfer of the DiMar Property had on the profitability or sales of the Nursery or how the nursery stock located on the property was disposed of.
The transfer of the DiMar property took place prior to the valuation dates for the acquisitions of property in the area by DOT for the I-595 project. Shortly after the transfer of the DiMar Property, DOT began acquiring property in the vicinity of the Nursery for the right-of-way for I-595.
The evidence did not establish the exact acreage occupied by the Nursery either before or after the sale of the DiMar property. It appears that after the sale of the DiMar property but prior to any acquisitions for the I-595 project, the area occupied by the Nursery was somewhere between fifteen and eighteen acres.
The direct acquisition of property required for the I-595 project included approximately two hundred feet along the southern frontage of State Road 84 which was being utilized by the Nursery. In total, approximately 2.75 acres of land that was occupied by the Nursery along this frontage was acquired for the I-595 project. (The acquisitions of property on which the Nursery was conducting operations will be referred to as the "Taking".) All of the property occupied by the Nursery and acquired as part of the Taking was actually owned by either the Cemetery (and occupied by the Nursery in accordance with the Deed Reservation discussed in Findings of Fact 5 above) or by Di-Mar. The evidence did not establish the terms under which the Nursery was occupying the property owned by DiMar. DOT paid the Nursery for the palm trees and nursery stock located within the area of the Taking.
DOT also acquired approximately two acres from the Cemetery that was occupied and being held in reserve for expansion by the Cemetery Company.
Prior to the acquisitions of property described in Findings of Fact 14 and 15, the Cemetery had direct access and egress to State Road 84. Because of the planned acquisitions, DOT recognized that a new access to State Road 84 was necessary for the Cemetery. In order to provide this new access for the Cemetery, DOT acquired an additional one half acre of land that was owned by the Cemetery Company but occupied by the Nursery pursuant to the Deed Reservation. (This half acre will be referred to as the "Trapezoidal Area.") The location and design for a new driveway-access to State Road 84 were negotiated with and approved by the Cemetery Company. (This new driveway will be referred to as the "Access Loop.") There is no indication that the Nursery was consulted or provided any input regarding its needs with respect to the Access Loop.
The Respondent has completed construction of the Access Loop. It was anticipated that the Access Loop would be connected with the interior roadways of the Cemetery. The Respondent has paid a sum of money to the Cemetery Company as a "Cost To Cure" to enable the Cemetery Company to connect its internal roads with the Access Loop. As of the date of the hearing, the Cemetery Company had not connected its internal roads with the Access Loop. As part of the Cost To Cure, the Respondent paid the Nursery for the trees and Nursery stock located within the Trapezoidal Area where the new Access Loop was built.
After the sale of the DiMar Property, the subsequent Taking for I-595 and the acquisition of the Trapezoidal Area for the new driveway, the Nursery continued its operations in an area of approximately twelve to fifteen acres.
The evidence did not establish the ownership of the property on which the Nursery has continued operations. However, it is clear that at least a portion of the property, and perhaps as much as ten acres, are owned by the Cemetery Company and subject to the Deed Reservation.
By letter dated March 31, 1988, the Cemetery Company advised Hamilton
C. Forman that it was reclaiming approximately five acres of the land occupied by the Nursery pursuant to the Deed Reservation. (These five acres will be referred to as the "Reclaimed Land.") The letter states that the Reclaimed Land was necessary because of the taking by DOT of the Cemetery property as set forth in Findings of Fact 15 above. The letter purports to serve as the one year notification required by the Deed Reservation.
The Reclaimed Land is among the Nursery's moot productive acreage. The evidence did not establish when, or if, this property was vacated by the Nursery and turned over to the Cemetery Company.
No competent evidence was presented to establish when the Cemetery Company would have exercised its rights under the Deed Reservation if no portion of the Cemetery had been taken for the I-595 project. While Hamilton Forman testified that the Cemetery Company would not have needed the property occupied by the Nursery for approximately four or five years from the date it acquired the Cemetery (which was sometime in 1985 or 1986), his testimony is clearly hearsay which is not corroborated by otherwise competent evidence. The amount of land being reclaimed by the Cemetery Company (five acres) exceeds the amount of land acquired by DOT that was actually being utilized and occupied by the Cemetery at the time of acquisition (approximately two acres.)
At the time the Forman property was developed, a system of underground water culverts and Sewell locks were established in order to control the surface water in the area and provide irrigation to the farm lands. These drainage and irrigation facilities (including the Sewell locks) were constructed several years prior to the establishment of the Nursery and they provide irrigation and drainage control on both sides of State Road 84. The nearby North New River Canal provides the source of water. The Formans have vested rights to draw water from the North New River Canal and to discharge water below the Sewell locks. The evidence did not establish the terms or duration of these vested rights but it appears that they will continue for a another sixty (60) to seventy (70) years.
The Tindall Hammock Irrigation Soil Conservation District ("Tindall Hammock") was created in 1951. Charles Forman is the chairman of Tindall Hammock and Hamilton Forman is a director. Hamilton Forman was also one of the organizers of Tindall Hammock. 25. Tindall Hammock is the owner of some of the drainage facilities in the area of the Nursery. The Sewell locks are owned and controlled by the Central and Southern South Florida Flood Control District (the "Flood Control District.") Tindall Hammock has recently negotiated with the Cemetery Company regarding the relocation of a portion of the drainage facilities.
As a result of the discussions between Tindall Hammock and the Cemetery Company, two easements have been granted to Tindall Hammock dated May 5, 1989. Tindall Hammock and the Cemetery determined the size and location of both of the drainage easements without any input from DOT. There are two separate areas involved in the relocation of the drainage facilities. The first consists of roughly .34 acres and runs approximately two hundred and sixty-six feet by fifty-six feet from the western border of the Nursery along the northern boundary of the Nursery following the line of the taking for the I-595 project. (This parcel will hereinafter be referred to as "Relocated Drainage Facility No. 1"). The second drainage easement also runs along the northern border of the Nursery following the boundary of the I-595 Taking. It starts from a point on the eastern boundary of the Nursery bordering the Cemetery, runs to the west for
a short distance and then cuts diagonally through the existing Nursery to a point close to the southern border of the Nursery. (This easement will hereinafter be referred to as the "Relocated Drainage Facility No. 2").
Relocated Drainage Facility No. 2 is almost entirely included within the area of the Reclaimed Land. A new drainage ditch is proposed to be constructed in the area of Relocated Drainage Facility No. 2 to replace a drainage ditch which previously ran along the eastern edge of the Nursery and served as the boundary between the Cemetery and the Nursery. The proposed new drainage ditch will enable the Cemetery to make more efficient use of the Reclaimed Land.
Tindall Hammock submitted a claim to DOT for the cost of the easements and for relocating the drainage facilities thereon. Tindall Hammock contended that the relocations were due to the I-595 project. DOT denied most of the claim. A portion of the relocated drainage facilities was necessary to replace and relocate drainage facilities that were within the area of the Taking and to replace drainage to the North New River Canal underneath State Road 84 which was severed as part of the construction of I-595. Therefore, DOT did construct or pay for the relocation of a culvert in the Trapezoidal Area and a drainage ditch in the area of Relocated Drainage Facility No. 2.
DOT has not paid to relocate any other drainage facilities because it determined that the relocations were not the result of the acquisitions for the I-595 project. Tindall Hammock has not appealed DOT's denial of the claim regarding the rest of the relocated drainage facilities.
Other than the facilities constructed or paid for by DOT, no new drainage facilities have been constructed in the area of Relocated Drainage Facility No. 2. It is not clear whether any new facilities have been erected in the area of Relocated Drainage Facility No. 1.
The Nursery has been compensated by DOT for the palm trees or nursery stock that was located in the areas where the new drainage facilities have been built as set forth in Findings of Fact 27. Prior to this hearing, the Nursery had not sought payment for the palm trees or nursery stock located in the other areas of the Relocated Drainage Facilities No. 1 and No. 2. The evidence in this case failed to establish that the relocation of the drainage facilities was necessitated by the I-595 project except in those areas where DOT has already constructed or paid for the relocation.
Throughout its existence and up until the construction of I-595, the Nursery had direct access to State Road 84. Prior to the Taking, the Nursery had two means of access from State Road 84: one was used primarily for an entrance and the other was used primarily for exiting. These access points were shared with the Cemetery.
Prior to the I-595 project, the Nursery's two access points on State Road 84 were approximately six hundred feet apart. Both of these access points allowed persons entering or leaving the Nursery to turn either east or west and both access points provided direct access from east bound or west bound State Road 84 through median openings. After the Taking, the new Access Loop was constructed in the Trapezoidal Area to funnel traffic into the Cemetery as set forth in Findings of Fact 16. The evidence did not establish when this new Access Loop was constructed.
The nature of the wholesale palm tree business requires large trucks and/or semi-tractor/trailers to remove the trees from the site. As a result of the Taking and the construction of the Access Loop, access to the Nursery has been significantly altered.
The new Access Loop was not designed to accommodate the large trucks and semi-tractor/trailers that typically frequent the Nursery. Access to the Nursery is still possible off the new Access Loop. However, entry to the Nursery is much more difficult for large trucks and semi-tractor/trailers.
After the Taking, large trucks and semi-tractors/trailers have a much more difficult time negotiating the turn within the Nursery to properly exit out onto the frontage road. While the new driveway makes access to the Nursery more difficult and causes some internal circulation problems, the Petitioner has not established that a more appropriate access cannot be designed within the remainder of the property. A redesign of the internal traffic circulation system for the Nursery may be necessary. No evidence was presented to demonstrate the viability, cost or effect of such a redesign. However, it appears that this access problem can be cured relatively easily.
The new Access Loop was constructed on land now owned by the Respondent. It is not clear what rights, if any, the Nursery will have to the Cost To Cure roadways that are to be constructed to connect the Access Loop to the internal Cemetery property. At this point, the only access that the Nursery has to State Road 84 is off of the Access Loop constructed by Respondent.
Prior to the Taking, Nursery customers had direct access to the Nursery from State Road 84. Now, customers are required to take a very circuitous route to reach the Nursery.
After the construction of I-595, State Road 84 has become a frontage road adjacent to the interstate. In the after condition, the Nursery has direct access to only the east bound frontage road. In sum, prior to the acquisition, the Nursery had direct frontage on a major arterial road. It now has restricted access on the east bound portion of a frontage road. Only those travelers on the east bound frontage road will be able to access the Nursery in substantially the same manner as they did prior to the acquisitions. While it is clear that access to the Nursery has become more difficult, the evidence did not establish that the Nursery will not be able to operate profitably solely as a result of these conditions.
Hamilton Forman testified that, until the I-595 project, the Nursery has been profitable during all of its years of operations. However, no competent evidence was introduced to show the profits that have been earned. No financial records of the Nursery were produced and some of the overhead and other records of the Nursery are shared with other businesses in which Hamilton Forman is involved. The gross sales of the Nursery have declined by approximately fifty percent from the year 1985 to 1988. Gross sales for the year 1985 were $174,364.95. Gross sales for the year 1986 were $163,484.41. Gross sales for the year 1987 were $144,573.87. Gross sales for the year 1988 were $87,116.00. Gross sales for the first nine months of 1989 were $43,909.00 which if annualized would result in total sales for the year of $58,647.00.
The overhead costs involved in operating the Nursery have remained relatively constant throughout this time and the Nursery has not significantly changed its advertising efforts during this time period.
Some of the lost sales may be attributable to a third party vendor who purchased the trees acquired by DOT following the acquisitions detailed in Findings of Fact 14 and 15. This third party vendor sold the trees which had been acquired from the Nursery at a significant discount over the prices that the Nursery was selling similar stock. The evidence did not establish the time frame during which this vendor was in business. Thus, it is not possible to determine the extent to which the Nursery's drop in sales was attributable to this third party vendor.
Petitioner contends that its drop in sales is mainly attributable to the more difficult access to the Nursery. However, Petitioner's own witnesses regarding the value of the nursery stock have testified to the unique types and sizes of the palm trees at the Nursery. The uniqueness of the product sold by the Nursery should help insulate it from problems associated with more difficult access. Moreover, it is clear that a number of other factors have contributed to the decrease in sales including the loss of the DiMar Property, the competition from the purchaser of the palm trees acquired by DOT in the area of the Taking and the temporary disruption that has occurred because of the ongoing construction that has been taking place in the area for several years.
After the Nursery learned it would have to turn over approximately five acres to the Cemetery Company as set forth in Findings of Fact 20 above, the Nursery submitted a claim to Respondent for the loss of its palm trees in this area (the "Claim"). The Nursery's Claim also sought reimbursement for all the remaining trees in the Nursery on the grounds that the Nursery could no longer continue to operate after it turned over the Reclaimed Land.
Most of the palm trees in the remaining areas of the Nursery are planted in the ground rather than in pots. The value of the palm trees in the ground is approximately the same as the cost to move the trees. Moving the trees would stunt the growth of the trees for a period of eight months to a year after the move. In addition, it is reasonable to expect that a significant number of the trees would be unable to survive a move.
The Petitioner has presented two valuations of the Nursery stock currently found within the entire remaining area occupied by the Nursery. The first valuation is dated May 2, 1988 and it includes a total of 6,739 trees which are valued at a total of $289,215.50. The second valuation is dated November 17, 1989 and includes 11,404 trees with a total value of $453,510. The Petitioner has not separated out the value of the trees in any specific area of the Nursery. No acceptable explanation was given for the great disparity between these two valuations completed only one and a half years apart. Therefore, the valuations are rejected. The Respondent has not presented any contrary evidence regarding the value of the trees located in the Nursery.
DOT denied Petitioner's Claim on the grounds that the Taking by DOT of the property occupied by the Nursery did not necessitate the relocation of the entire Nursery operation. In making this determination, DOT refused to consider the effect on the Nursery of losing the five acres being reclaimed by the Cemetery Company.
DOT has not made a specific assessment of what impact the Taking and the development of the new Access Loop has had on the business of the Nursery. DOT has concluded that the displacement of the Nursery in the area of the Taking (approximately 2.75 acre) in the Trapezoidal area (approximately .5 acres) and in the area of the new drainage ditch (less than .5 acres) do not necessitate the move of the entire Nursery operation. There is a great deal of conflicting
evidence regarding the amount of land actually occupied by the Nursery. After thoroughly reviewing this evidence, it is concluded that, including the five acres being reclaimed by the Cemetery Company, the Nursery has approximately twelve to fifteen acres of land in which to carry out its operations.
Petitioner has not presented sufficient evidence to establish that this area would be inadequate to continue profitable operations. The evidence presented at the hearing did establish that the economies of scale will no longer be favorable enough to allow the Nursery to continue to operate at a profit if and when it turns over the Reclaimed Land to the Cemetery Company. However, the evidence did not establish that the Nursery would be unable to operate at a profit if the Cemetery Company had not reclaimed the approximate five acres pursuant to the Deed Reservation.
In evaluating relocation claims, DOT first determines whether a claimant has been "displaced" in the area of the taking. Prior to evaluating the Claim which is the subject of this proceeding, DOT had determined that the Nursery was displaced in the area of the Taking, in the Trapezoidal Area and in a small portion of the area of Relocated Drainage Facility No. 2 where the new drainage ditch was constructed. Based upon this determination, the Nursery was deemed eligible for relocation, cost reimbursement or reimbursement for actual direct loss of tangible personal property with respect to the palm trees located in those areas. The palm trees in those areas were considered moveable personal property by DOT because the intention was to sell the trees for transplantation off-site. Thus, the trees were deemed eligible for relocation, cost reimbursement or, if the Nursery elected not to move the trees, they were to be treated under the relocation guideline known as "Reimbursement for Actual Direct Losses of Tangible Personal Property." The Nursery stock was processed through relocation procedures and was handled separate and apart from the realty and improvement acquisitions. However, DOT denied the Nursery's subsequent Claim for relocating the palm trees in the remaining area of the Nursery on the grounds that the Nursery was not a displaced person in those areas.
In applying the Relocation Act, DOT will, in certain instances, reimburse a claimant for relocating personal property not within the area of the take. DOT has not adopted any rules setting forth the factors that will be considered in determining whether the agency will pay for relocation costs of personal property that is not relocated within the area of the take. Among the factors that are considered when determining whether a displacee is entitled to relocation assistance for a partial taking include whether there has been a total severance of access, whether internal traffic flow in the remainder has been substantially impaired and such internal traffic control was an essential part of the business operation, whether a process system has been disrupted and there is no adequate space on the remainder to put that process system back into operation and whether the visibility of the business had been significantly impaired and the business is largely dependent on impulse buyers as opposed to destination shoppers.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties hereto pursuant to Section 120.57(1), Florida Statutes.
On January 2, 1971, the United States Congress enacted Public Law 91- 646, the "Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (the "Uniform Act"), 42 U.S.C. 4601, which was subsequently amended by Title IV of Public Law 100-17, "Uniform Relocation Act Amendments of 1987."
The Uniform Act and the amendments thereto (the "Amended Act"), 42 U.S.C. 4601, establish a uniform policy for the treatment of persons displaced as a result of federal or federally assisted programs. The primary purpose of the Uniform Act as amended is to ensure that persons displaced as a direct result of programs or projects undertaken by a federal agency or with federal financial assistance do not suffer disproportionate injuries as a result of the programs and projects designed for the benefit of the public as a whole and to minimize the hardship of displacement on such persons. See, Section 201(b) of the Uniform Act, 42
U.S.C. 4621.
Pursuant to Section 421.55(3), Florida Statutes (1987), the State of Florida has chosen to comply with the Uniform Act in projects involving federal financial assistance. Section 421.55(3), Florida Statutes (1987), provides:
The state is authorized and empowered, in acquiring real property for use in a public project or program in which federal or federal-aid funds are used, to make all such relocation and other payments to or for displaced persons as required under the provisions of Public Law 91-646 (the Federal Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970), and to provide such displaced persons with relocation services. ...
Effective June 28, 1989, the State of Florida has authorized compliance with the Amended Act. See, Chapter 89-207, Laws of Florida, codified at Section 421.55, Florida Statutes (1989)
DOT administers a relocation assistance program and provides advisory services and payments to owners of businesses displaced as a result of highway construction projects. The federal regulations which are pertinent to this case, and used by DOT in administering its relocation program, are set forth in portions of Title 23 and Title 49 of the Code of Federal Regulations.
DOT's procedures for administering the Uniform Act are set forth in DOT's Right of Way Procedures Manual (the "Manual",) which has been adopted as a rule by reference pursuant to Rule 14-15.005, Florida Administrative Code. In the Manual, Respondent's Procedure RA 1-1(E) acknowledges the applicability of Title 23 CFR and Title 49 CFR Part 25 to determinations made with regard to Respondent's relocation assistance program for federally assisted projects.
At the hearing in this case, there was considerable confusion regarding the federal regulations applicable to the Petitioner's relocation claim. The parties agreed during the hearing that the date the Claim was submitted was May 5, 1988. The parties also stipulated at the hearing that the federal law in effect on the date of the Claim should control. However, in its Proposed Recommended Order, Petitioner argues that the rule in effect on the date of the displacement, i.e., the date of the Taking, should be deemed the applicable rule for purposes of this Claim. Petitioner suggests that certain pertinent provisions of the federal regulations have changed and the changes may alter the manner in which relocation programs are administered. However, a thorough review of the regulations demonstrates that there has been no significant modifications in the federal rules.
Title 49 CFR Part 25 was promulgated on October 1, 1985 and it is the applicable rule for all displacees prior to April 2, 1987. On December 17, 1987, 1/ new interim rules for relocation programs were published in the Federal Registry. These interim rules appear at 49 CFR Part 24. The interim rules were intended to implement the provisions of the Amended Act. The interim rules provide that on federally assisted projects, where the displacing agency lacked specific authority under the existing state law to comply with the interim rules, the agency was to continue to comply with Title 49 CFR Part 25 until such authority was obtained. See, Vol. 52 No. 242, Fed. Reg. 47994, December 17, 1987. As set forth in paragraph 4 of the Conclusions of Law above, Florida did not enact authority to comply with the Amended Act until the passage of Chapter 89-207, Laws of Florida on June 28, 1989. Prior to that, the existing authority for establishing a relocation program was contained in Section 421.55(3), Florida Statutes (1987), which only deals with the Uniform Act. In sum, it would appear that the rules adopted under the Uniform Act (the 1985 version of Title 49 CFR Part 25,) should be applied for all displacement claims made prior to June 28, 1989. In denying Petitioner's claim in this case, DOT cited to the interim rules, 49 CFR Part 24.2(f) (2) (iv) which defines "persons not displaced." While this citation may be technically incorrect, the exact same provisions can be found in the earlier version of the Rules at 49 CFR Part 25.2(f)(2)(iv). Likewise, this provision is also contained in the 1989 rules at 49 CFR Part 24.2(g) (2) (vi).
In this case, the exact date of the Taking has not been established. The absence of this information further confuses the issue as to the applicable regulations. In any event, it does not appear that there are any differences between the 1985, 1987 or 1989 versions of the federal regulations pertinent to this case. Contrary to Petitioner's suggestion, each version contains the same definition of `-persons not displaced." That definition provides that a person is not displaced if the agency determines that he is not displaced as a direct result of a partial acquisition. Furthermore, all versions of the rules, as well as the statute, make it clear that in order for moving expenses to reimbursable, the expenses must be directly related to the acquisition and must be reasonable and necessary. 10. While the statute does not specifically define the term "persons not displaced", Section 4601 of Title 42 of the United States Code states that a person is displaced when he "moves from real property or moves his personal property from real property... as a direct result of... the acquisition of such real property in whole or in part, for a program or project undertaken by a federal agency or with federal financial assistance." The statute clearly grants discretion to the agency to determine when a person has been displaced as a direct result of the project. Distinguishing partial acquisitions is an appropriate way to implement this statute.
Petitioner is correct in pointing out that the Uniform Act does not specifically address the situation of a displacement which occurs as the result of a partial acquisition. However, the federal regulations cited above recognize this distinction and so has DOT. In implementing the statute, DOT has set forth right-of-way operating procedures which have been adopted as a rule by reference as set forth in paragraph 6 of the conclusions of law above. In the Manual, a "displaced person" is defined as follows:
DISPLACED PERSON -- Any person as defined in this appendix who moves from the real property or moves his or her personal property from the real
property: (l) As a direct result of the department's acquisition of such real
property in whole or in part for a project. In the case of a partial acquisition, the Department shall determine whether the person is displaced as a direct result of the partial acquisition;...
This definition was incorporated in the Manual effective August 23, 1985.
Pursuant to procedure number RA 3-I in the Manual, a displaced person is eligible to receive payment for his or her moving expenses for personal property located within the acquired right-of-way. A displaced person is also eligible to receive a payment for his or her moving expenses incurred in moving from real property not acquired when the acquisition of real property used for a business or farm operation is determined by the Department to necessitate such a move. In other words, DOT has discretion to determine whether the acquisitions or project has forced a business or farm to move. These procedure were adopted on November 1, 1983. The Florida procedures are consistent with the provisions of the federal rules.
In sum, DOT has properly interpreted the Uniform Act and the rules adopted thereunder in a manner that allows it to distinguish those situations in which only part of a person's personal property is required to be moved as a direct result of an agency's acquisition of a portion of real property.
There is no dispute in this case that Petitioner is a "displaced person" on that portion of property acquired by DOT in the area of the Taking and the Trapezoidal Area. There is also no dispute that Petitioner was paid in full for the value of its personal property situated in these areas. The key question in this case is whether Petitioner qualifies as a "displaced person" on the remainder of the parent tract.
In denying Petitioner's claim in this case, DOT cited to the 49 CFR Part 24.2(f)(2)(iv) and stated that Petitioner was not a "displaced person". Petitioner argues that once it was determined to be a "displaced person" with respect to a portion of the property as a result of the Taking, DOT cannot subsequently determine it to be a "person not displaced" with respect to the remainder of the property. In essence, Petitioner is arguing that DOT does not have the authority to distinguish between partial acquisitions and total acquisitions for purposes of determining eligibility for relocation benefits. Under this view, the only issue in this case is what relocation benefits Petitioner is entitled to receive. Petitioner's interpretation of the statute is too narrow and it is rejected. As set forth above, distinguishing partial acquisitions is an appropriate interpretation of the statute.
49 CFR Part 24.303(a) states in pertinent part:
Eligible costs. Any business or farm operation which qualifies as displaced person (defined at Section 24.2(f)) is entitled to payment for such actual moving and related expenses, as the
Agency determines to be reasonable and necessary. DOT's denial of the claim must be sustained unless Petitioner
establishes that the denial was arbitrary and capricious. (Emphasis added.)
DOT is only authorized to pay those expenses that are "reasonable and necessary" and directly related to the displacement. In this case, the cost of moving the entire nursery has not been shown to be necessary and directly related to the displacement by DOT.
While the evidence established that the Nursery will probably be unable to function profitably after the return of the Reclaimed Land to the Cemetery Company, Petitioner has not established that DOT should bear the responsibility for the return of that property. At the time the property was conveyed for establishment of the Cemetery, the transferors were compensated for surrendering the fee interest in the property. While the Nursery has been able to continue to occupy the premises, their ability to remain in business at this site has always been subject to the Cemetery's right to reclaim the property. DOT cannot be held responsible under the Uniform Act for a third party's actions in reacquiring the property. It was the Cemetery Company, not DOT, that reclaimed the five acres pursuant to the Deed Reservation. Since the Agency did not participate in any way in determining which or how much land would be reclaimed for occupancy by the Cemetery, the loss of use of that land was not a loss directly related to the Agency's acquisition.
The cases interpreting the Uniform Act indicate that federal relocation assistance is not available to displacees who lose their property as a result of the actions of a third party such as a landlord. See, Conway v. Harris, 586 F.2d 1137 (7th Cir. 1978); Moore v. Department of Housing and Urban Development, 561 F.2d 175 (8th Cir., 1977) cert. denied 436 U.S. 919. Thus, the Reclaimed Land must be disregarded in determining whether the Nursery must move its entire operation as a result of the I-595 project.
Petitioner has not established that any additional relocated drainage facilities are directly attributable to the I-595 project. With respect to both easements, the Cemetery Company was responsible for choosing the location of the improvements. If the location of these improvements impacts the Nursery, such impact is a matter between the Nursery and the Cemetery Company.
While the I-595 project has clearly affected access to the property (both in terms of access off State Road 84 and from an internal circulation standpoint,) there has been no total severance of access. Petitioner has not established that these access problems alone require the Nursery to cease operations or that the Nursery should be treated as a displaced person for purposes of the whole business.
DOT's denial of Petitioner's Claim for the entire remaining Nursery stock was justified. The claimed expenses for terminating the business are not directly related to the I-595 acquisitions and are not reasonable and necessary.
Based upon the foregoing findings of facts and conclusions of law, it is RECOMMENDED that a Final Order be entered denying Petitioner's claim for relocation expenses related to the Nursery stock outside the area of the Taking which has not previously been compensated.
DONE AND ORDERED in Tallahassee, Leon County, Florida, this 26th day of September, 1990.
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 26th day of September, 1990.
APPENDIX TO RECOMMENDED ORDER CASE NO. 89-0084
Both parties have submitted Proposed Recommended Orders. The following constitutes my rulings on the proposed findings of fact submitted by the parties. Petitioner's proposed findings of fact and conclusions of law includes seven main sections. Section I is an Introduction, Section II is entitled stipulated Facts, Section III is entitled DOT Admissions, Section IV is entitled Unrebutted Facts in Evidence of the Petitioner, Section V is entitled Disputed Facts, Section VI is entitled Statutes regarding Eligibility for Relocation Assistance, Section VII is entitled Federal Case Law on Relocation-Assistance Eligibility and Section VIII is entitled Proposed Conclusions of Law. All of Petitioner's proposed findings of fact and conclusions of law have been considered in the preparation of this Recommended Order. This Appendix will deal only with the factual proposals set forth in Sections III, IV and v.
The Petitioner's Proposed Findings of Fact
"DOT ADMISSIONS"
Paragraph Number in Paragraph Number in the Findings of Fact Petitioner's Section in the Recommended Order Where Accepted or "III. DOT Admissions" Reason for Rejection
Rejected as overly broad and constituting a conclusion of law rather than a finding of fact. While this proposed finding
may be true in some instances, the DOT statement which is relied upon for this proposal was limited to a specific factual setting.
Rejected as irrelevant.
Rejected as irrelevant. The subject matter is addressed in part in Findings of Fact 48.
Adopted in substance in Findings of Fact
14 and 47.
Adopted in substance in Findings of Fact
30 and 48.
Subordinate to Findings of Fact 16 and 17.
Subordinate to Findings of Fact 26, 27, 28 and 30 31
Subordinate to Findings of Fact 30, 42 and 47.
Subordinate to Findings of Fact 13 and 18.
Subordinate to Findings of Fact 14 and 15.
Subordinate to Findings of Fact 16 and 30.
Subordinate to Findings of Fact 16.
Subordinate to Findings of Fact 30. No competent evidence was presented to establish the acreage involved in this "Cost To Cure" area. The evidence did establish that DOT did compensate the Nursery for some trees that were located outside the area of the Taking.
Subordinate to Findings of Fact 8 and 9.
Rejected as irrelevant.
Subordinate to Findings of Fact 20 and 21.
Adopted in substance in Findings of Fact 27.
Adopted in substance in Findings of Fact 14, 17, 30 and 47.
Adopted in substance in Findings of Fact 28, 30, and 47.
Adopted in substance in Findings of Fact 28, 30, and 47.
Subordinate to Findings of Fact 32, 33, and 34.
Rejected as irrelevant. This subject is addressed to some degree in Findings of Fact 35.
Rejected as vague and ambiguous.
Rejected overly broad.
Rejected as constituting a conclusion of law rather than a finding of fact.
Rejected as constituting a conclusion of law rather than a finding of fact.
Rejected as vague and ambiguous. This subject is addressed to some degree in Findings of Fact 48.
Adopted in substance in Findings of Fact
46 and 47.
Adopted in substance in Findings of Fact 48.
Subordinate to Findings of Fact 48.
Subordinate to Findings of Fact 48.
Rejected as constituting a conclusion of law rather than a finding of fact. This subject area is related to Findings of Fact 48.
Rejected as constituting a conclusion of law rather than a finding of fact. This subject area is related to Findings of Fact 48.
Rejected as constituting a conclusion of law rather than a finding of fact.
Adopted in substance in Findings of Fact
Rejected as overly broad.
37.-38. Rejected as constituting a conclusion of law rather than a finding of fact.
Rejected as constituting a hypothetical based upon facts not in evidence.
Rejected as irrelevant.
Subordinate to Findings of Fact 46.
Rejected as constituting argument rather than a Finding of Fact. This subject matter is addressed in Findings of Fact 38.
Rejected as irrelevant.
Rejected as irrelevant.
Rejected as vague.
Subordinate to Findings of Fact 46.
Subordinate to Findings of Fact 47.
Subordinate to Findings of Fact 46 and 48.
Subordinate to Findings of Fact 48.
50.-52. Rejected as unnecessary and as constituting legal interpretations rather than findings of fact.
Adopted in substance in Findings of Fact 48.
Adopted in substance in Findings of Fact 48.
Rejected as irrelevant.
Subordinate to Findings of Fact 48.
Rejected as constituting argument and legal interpretations rather than a finding of fact. This subject area is addressed in Findings of Fact 48.
Rejected as vague and ambiguous. The subject area is addressed in Findings of Fact 45, 46 and 47.
Subordinate to Findings of Fact 46.
Subordinate to Findings of Fact 34 and 46.
Rejected as vague and ambiguous and irrelevant.
"UNREBUTTED FACTS AND EVIDENCE
Paragraph Number in Paragraph Number in the Findings of Fact Petitioner's Section in the Recommended Order Where Accepted "IV Unrebutted Facts or Reason for Rejection
and Evidence
Adopted in substance in Findings of Fact 4, 5 and 6.
Subordinate to Findings of Fact 20.
Rejected as vague, overly broad and irrelevant.
Adopted in substance in Findings of Fact
Subordinate to Findings of Fact 26.
Subordinate to Findings of Fact 26.
Adopted in substance in Findings of Fact 31, 36 and 37.
Subordinate to Findings of Fact 34 and 37.
Subordinate to Findings of Fact 37.
Subordinate to Findings of Fact 46.
Subordinate to Findings of Fact 2.
Subordinate to Findings of Fact 23.
Adopted in substance in Findings of Fact
Subordinate to Findings of Fact 38.
Adopted in substance in Findings of Fact 4.
Adopted in substance in Findings of Fact 3.
Rejected as irrelevant and not necessary.
Subordinate to Findings of Fact 5 and 6.
19.-23. The gross sales figures are adopted in substance in Finding of Fact 38. The labor costs are rejected as being irrelevant.
Adopted in substance in Findings of Fact 39.
Rejected as irrelevant and not established by competent substantial evidence.
Subordinate to Findings of Fact 31-41.
Adopted in substance in Findings of Fact 33-34.
Adopted in substance in Findings of Fact 33-34 and 35
Subordinate to Findings of Fact 46.
Subordinate to Findings of Fact 39.
Addressed in part in Findings of Fact 41.
Adopted in substance in Findings of Fact
33. Subordinate to Findings of Fact 44.
Subordinate to Findings of Fact 44.
Subordinate to Findings of Fact 33, 34 and 35.
Subordinate to Findings of Fact 46.
37-39. Subordinate to Findings of Fact 43.
Subordinate to Findings of Fact 20 and 22.
Subordinate to Findings of Fact 20 and 22.
"DISPUTED FACTS"
Paragraph Number in Paragraph Number in the Findings of Fact Petitioner's Section in the Recommended Order Where Accepted "V Disputed Facts" or Reason for Rejection
and Evidence
Rejected as irrelevant.
Subordinate to Findings of Fact 26, 27 and 30.
Subordinate to Findings of Fact 46.
Subordinate to Findings of Fact 14, 15,
16 and 22.
Subordinate to Findings of Fact 14.
The Respondent's Proposed Findings of Fact
Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or
Reason for Rejection.
Adopted in substance in Findings of Fact 2.
Rejected as irrelevant.
Rejected as irrelevant.
Adopted in substance in Findings of Fact 23.
Rejected as irrelevant.
Adopted in substance in Findings of Fact 3.
Adopted in substance in Findings of Fact 3.
Adopted in substance in Findings of Fact 3.
Adopted in substance in Findings of Fact 3 and 38.
Adopted in substance in Findings of Fact 7.
Adopted in substance in Findings of Fact 31.
Subordinate to Findings of Fact 26 and 27.
Adopted in substance in Findings of Fact 25.
Subordinate to Findings of Fact 24 and 25.
Adopted in substance in Findings of Fact 24.
Adopted in substance in Findings of Fact 4.
Subordinate to Findings of Fact 7.
Adopted in substance in Findings of Fact 7.
Rejected as vague and irrelevant. This
subject matter is covered in Findings of Fact 7.
Adopted in substance in Findings of Fact 4.
Subordinate to Findings of Fact 4, 5 and 6.
Subordinate to Findings of Fact 4, 5 and 6.
Subordinate to Findings of Fact 9 and 10.
Subordinate to Findings of Fact 10 and 12.
Subordinate to Findings of Fact 13 and 18.
Adopted in substance in Findings of Fact 15.
Rejected as vague. This subject matter is addressed in Findings of Fact 14.
Rejected as vague. This subject matter is addressed in Findings of Fact 36 and 37.
Subordinate to Findings of Fact 16.
Adopted in substance in Findings of Fact 16.
Subordinate to Findings of Fact 13 and 18.
Subordinate to Findings of Fact 25 and 26.
Subordinate to Findings of Fact 27, 28 and 30.
Subordinate to Findings of Fact 26 and 27.
Subordinate to Findings of Fact 29.
Adopted in substance in Findings of Fact 26.
Adopted in substance in Findings of Fact 20.
Subordinate to Findings of Fact 38.
Subordinate to Findings of Fact 38 and 46.
Adopted in substance in Findings of Fact 21.
41.-44. Rejected as irrelevant and not established by competent substantial evidence.
Rejected as vague and irrelevant.
Rejected as vague and irrelevant.
Rejected as vague and irrelevant.
Subordinate to Findings of Fact 19.
Rejected as irrelevant.
Subordinate to Findings of Fact 46.
Rejected as vague and irrelevant.
Rejected as vague.
Rejected as constituting argument rather than a finding of fact.
Rejected as constituting argument rather than a finding of fact.
No proposal submitted.
Rejected as constituting argument rather than a finding of fact.
COPIES FURNISHED:
Charles G. Gardner, Esquire Department of Transportation 605 Suwannee Street, M.S. 58
Tallahassee, Florida 32399-0458
Charles R. Forman Atkins, Krehl & Forman
320 Northwest Third Avenue Post Office Box 159
Ocala, Florida 32678
H. Collins Forman, Jr. Watson, Clark & Purdy Post Office Box 11959
Fort Lauderdale, Florida 33339
Ben G. Watts, Secretary Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street
Tallahassee, Florida 32399-0458
Robert Scalan, Esquire Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street
Tallahassee, Florida 32399-0458
| Issue Date | Proceedings |
|---|---|
| Sep. 26, 1990 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Dec. 26, 1990 | Agency Final Order | |
| Sep. 26, 1990 | Recommended Order | Portion of nursery taken for highway; Nursery not entitled to relocation benefits to move entire nursery; land reclaimed by deed reverter not Department Of Transportation responsibility. |
