STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VERLYN SPIVEY AND SANDRA )

SPIVEY, )

)

Petitioners, )

)

vs. ) CASE No. 92-4479

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice the Division of Administrative Hearings by its duly designated Hearing Officer, K. N. Ayers, held a formal hearing in the above- styled case on November 18, 1992 at Tampa, Florida.

APPEARANCES

For Petitioner: Ronald R. Swartz, Esquire

610 Waters Avenue - Suite J Tampa, Florida 33604

For Respondent: Charles G. Gardner, Esquire

Assistant General Counsel Haydon Burns Building, MS 58 605 Suwannee Street

Tallahassee, Florida 32399 0458 STATEMENT OF THE ISSUES

Whether Petitioners are entitled to relocation allowances resulting from the taking of their property in connection with the Northwest Hillsborough County Expressway.

PRELIMINARY STATEMENT

By letter dated June 22, 1992, Petitioners, by and through their attorney, were advised by the Department of Transportation (DOT), Respondent, that their request for relocation benefits was denied because they were not in occupancy of their residence on this property at the initiation of negotiations and of their right to contest this determination by requesting a formal hearing. By Notice of Appeal dated June 29, 1992 Petitioners requested a hearing and these proceedings followed.

At the hearing Petitioner called one witness, Respondent called one witness and four exhibits were admitted into evidence. The operative facts here involved are not really contested. Accordingly, proposed findings timely submitted are accepted. Those proposed findings not included below were deemed unnecessary to the results reached.

FINDINGS OF FACT

1. Petitioners purchased the property here involved in 1961 and occupied it as their residence until April 1991 when they moved to a new home they had just completed.

   
   

2. The Hillsborough County Northwest Expressway was in the talking stage for several years before the final route for the Expressway was decided. Numerous public hearings were held before the final route of the Expressway was determined.

   
   

3. Throughout most of these meetings and discussions Petitioners' property was deemed likely to be in the right-of-way of the Expressway and subject to taking.

   
   

4. Anticipating their property would be taken for the Expressway, Petitioners, in 1989, purchased another lot on which to construct a residence.

   
   

5. The Tampa-Hillsborough County Expressway Authority was designated as agent for the Florida Department of Transportation to acquire the necessary rights-of-way for the proposed Northwest Hillsborough County Expressway Project.

   
   

6. In turn the Expressway Authority designated O.R. Colon Associates, Inc. (Colon) to serve as its agent in acquiring the property needed for this project.

   
   

7. The ultimate route of the Northwest Expressway was determined and property owners on the selected route were sent a letter in January 1991 informing them that their property would probably be taken and that the Expressway Authority would negotiate with the owners of all parcels of property to be acquired to arrive at a fair price to be paid for their property. That letter further provided that:

   
   

   In order to facilitate construction of this project, the Authority will begin the appraisal and relocation survey of your property, after which you will be offered the fair market value

   of your property based upon an independent appraisal.

   * * *

   In addition to receiving payment for the fair market value of your property, you may be entitled to certain relocation assistance payments and other costs payable only during the settlement process. (Emphasis added)

   
   

8. Petitioners also had a business occupying the same property on which their residence was situated. This business was incorporated and did not move from the property until after Petitioners had moved into their new residence in April 1991.

   
   

9. Subsequent to moving their residence from the property to be taken for the Expressway project Petitioners were shown a relocation brochure (Exhibit 2) prepared by Colon which contained information regarding relocation benefits.

   
   

10. The first personal contact with Petitioner was made by an employee of Colon on January 16, 1992 at which time a written offer to purchase the property for $116,400 was presented to Petitioners.

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

    
    

12. Rule 14-66.003, Florida Administrative Code, provides in pertinent part:

    
    

    1. A "relocatee or displaced person" is any person who: (a) is in occupancy on the required property at the initiation of negotiations for the acquisition of the real property in whole or in part; (b) moves from the real property (which

       is subsequently acquired) after the date established in (a); (c) moves his personal property from the real property (which is subsequently acquired)

       after the date established in (a).

    2. The "date of initiation of negotiations" for the parcel is the date the department makes the

       first personal contact for the purpose of discussing the price of the parcel or property to be acquired for a project with the owner or his designated representative.

       
       

13. Petitioners' contention that the January 1991 letter from Tampa Hillsborough County Expressway Authority constituted a written notice from the Authority advising that it is the intention of the Authority to acquire the property and thereby relieved them from being in occupancy at the initiation of negotiations is without merit.

    
    

14. Also, Petitioners' contention that the relocation brochure issued to a few owners by Colon, but not seen by Petitioners until well after they had relocated to their new residence, somehow constitutes estoppel against the state is without merit. Greenhut Construction Co. v. Henry A. Knott, Inc., 247 So.2d

    517 (Fla. 1st DCA 1971). Certainly Petitioners could not have moved to their new residence in reliance on the relocation brochure they had never seen and did not know existed.

    
    

15. The initiation of negotiations is defined in Rule 14-66.003(4), Florida Administrative Code, above cited and the January 1991 letter from the Authority in no wise fits that definition, while the January 16, 1992 letter (Exhibit 3) clearly does. The law pertaining to relocation benefits is contained in Rule

    14-66.003, Florida Administrative Code, and is binding until such time as it is determined to be invalid in a Section 120.56, Florida Statutes, proceeding or declared unconstitutional by a court having subject matter jurisdiction.

    
    

16. From all of the evidence presented, it is clear that Petitioners were not in occupancy of the property as their residence at the initiation of negotiations, therefore they are not eligible for relocation benefits.

    
    

17. Since Petitioners have failed to prove eligibility for any relocation benefits, a determination of those benefits to which they would be entitled, if eligible, would be futile. Further, insufficient evidence was presented by either party for a factual determination of which benefits claimed in Exhibit 1 Petitioners would otherwise be eligible.

RECOMMENDATION

It is recommended that a Final Order be entered dismissing Verlyn Spivey's and Sandra Spivey's application for relocation benefits associated with the taking of their property in the right-of-way of the Hillsborough County Northwest Expressway.

DONE and ORDERED this 22nd day of December, 1992, in Tallahassee, Leon County, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 1992.

COPIES FURNISHED:

RONALD R SWARTZ ESQ 610 WATERS AVE - STE J TAMPA FL 33604

CHARLES G GARDNER ESQ ASST GENERAL COUNSEL

DEPARTMENT OF TRANSPORTATION HAYDON BURNS BLDG - MS 58 605 SUWANNEE ST

TALLAHASSEE FL 32399 0458

THORNTON J WILLIAMS ESQ GENERAL COUNSEL

DEPARTMENT OF TRANSPORTATION HAYDON BURNS BLDG - MS 58 605 SUWANNEE ST

TALLAHASSEE FL 32399 0458

BEN G WATTS/SECRETARY

ATTN: Eleanor F. Turner DEPARTMENT OF TRANSPORTATION HAYDON BURNS BLDG - MS 58 605 SUWANNEE ST

TALLAHASSEE FL 32399 0458

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 92-004479

Orders for Case No: 92-004479