STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MINI-WAREHOUSES AT KENDALL, LTD., ) d/b/a A+ MINI-STORAGE, )

)

Petitioner, )

)

vs. ) CASE NO. 93-6643

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written notice, a formal hearing was held in this case on July 12-13, 1994, at Miami, Florida, before Errol H. Powell, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Timothy G. Schoenwalder, Esquire

Blank, Rigsby & Meenan, P.A. Post Office Box 11068 Tallahassee, Florida 32302-3068

For Respondent: Charles G. Gardner, Esquire

Florida Department of Transportation 605 Suwannee Street, Mail Station 58 Haydon Burns Building

Tallahassee, Florida 32399-0458 STATEMENT OF THE ISSUE

The issue for determination at formal hearing was whether Respondent is requiring Petitioner to pay for the use of surplus property in an amount exceeding prevailing market rent in contravention of Section 337.25(5), Florida Statutes.

PRELIMINARY STATEMENT

On or about October 29, 1993, Mini-Warehouses at Kendall, Ltd. d/b/a A+ Mini-Storage (KENDALL) filed a petition for formal administrative hearing with the Florida Department of Transportation (DOT) contending that DOT was requiring it (KENDALL) to pay for the use of surplus property in an amount exceeding prevailing market rent in contravention of Section 337.25(5), Florida Statutes. On November 18, 1993, the matter was referred to the Division of Administrative Hearings (DOAH) for the assignment of a Hearing Officer.

The parties agreed, and it was so ordered, that this case would be consolidated for hearing purposes with DOAH Case No. 94- 2967RU, bearing the same style. A separate order by this Hearing Officer is being issued on each case, since one case requires a final order and the other case a recommended order.

A proposed prehearing stipulation was filed by the KENDALL on July 11, 1994, to which DOT orally responded at the hearing on July 12, 1994. At the hearing, KENDALL presented the testimony of six witnesses and entered 17 exhibits 1/ into evidence. DOT presented the testimony of three witnesses and entered seven exhibits 2/ into evidence.

A transcript of the formal hearing was ordered. At the request of the parties, the time for filing post-hearing submissions was set for more than ten days following the filing of the transcript. The parties submitted proposed findings of fact and conclusions of law. All proposed findings of fact have been addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. Mini-Warehouses at Kendall, Ltd. d/b/a A+ Mini-Storage (KENDALL) is a Florida partnership maintaining its principal place of business at 12345 S.W. 117th Court, Miami, Florida.

   
   

2. DOT is a decentralized state agency. It has established several districts of which District 6, Dade County, is one. DOT's central office is located in Tallahassee, Florida.

   
   

3. At all times material hereto, KENDALL held title to all privately owned real property, hereinafter abutting parcel, located adjacent to real property owned by the Florida Department of Transportation (DOT), hereinafter surplus property, situated in Dade County, Florida.

   
   

4. Surplus properties are oddly-shaped strips of land left over from parcels acquired by the State of Florida. The subject surplus property is of no use to the State and can only be used for a few economic purposes. It has utility value for the abutting property.

   
   

5. KENDALL's abutting parcel is fully developed with buildings divided into mini-storage units being rented to the public and is zoned IU-C, Industrial/Conditional - Manufacturing. The east side of KENDALL's property abuts the surplus property.

   
   

6. The surplus property and the abutting property are located in DOT's District 6.

   
   

7. DOT identifies the surplus property as parcel no. 0739 which is a long, narrow right-of-way, consisting of .927 acres. It is 29 to 67 feet wide and approximately 950 feet long. The surplus property is zoned EU-M, Residential.

   
   

8. On June 28, 1985, DOT and KENDALL entered into a written surplus property lease (original lease) for the subject surplus property. The original lease was automatically renewable and could be cancelled by either party with 30 days prior notice.

9. Leasing the surplus property allowed KENDALL to reduce the amount of damage that the state's storm water runoff would otherwise cause to its abutting property.

   
   

10. KENDALL was required by the original lease to pay DOT $2,400 annually, plus sales tax, for the use of the surplus property. KENDALL made the payments from 1985 to 1991.

    
    

11. By letter dated May 3, 1991, DOT's District 6 office informed KENDALL that: (a) the original lease was unilaterally terminated; (b) KENDALL would be required to execute a renewal lease for 5 years with an option to renew for 5 more years, at an annual rate to be determined; (c) KENDALL might want to hire an independent appraiser from DOT's approved list of independent fee appraisers; and (d) KENDALL would have to negotiate a fee with the appraiser.

    
    

12. Wanting to continue to lease the surplus property, KENDALL chose an appraiser from DOT's approved list of independent fee appraisers and hired him to appraise the surplus property.

    
    

13. Per DOT's instructions, the independent appraiser contacted District 6's chief review appraiser for further instructions regarding the appraisal.

    
    

14. The appraiser hired by KENDALL had a long working relationship with DOT. Throughout the 1980's to 1991, DOT and District 6 had accepted surplus property appraisals, without exception, from the appraiser that: (a) used only the contributory value method as a starting point in the appraisal process for fair market rent; (b) determined the fair market value that the surplus property would bring in a sale open to the public; and (c) made necessary market-based adjustments to arrive at a final figure, which was somewhere between the figure obtained in (a) and the figure obtained in (b), which represented the fair market rent for the surplus property.

    
    

15. However, involving the surplus property at KENDALL, District 6's chief review appraiser informed the independent appraiser that only the unmodified across the fence or contributory value method would be acceptable when estimating rent that DOT should seek for the surplus property. Moreover, the chief review appraiser informed him that any other method would result in his appraisal being rejected.

    
    

16. The chief review appraiser informed the independent appraiser that the factors to be used and considered were: (a) the surplus property's contributing value to KENDALL, as if the abutting property was vacant; and (b) a market rate of return based on the contributing value to KENDALL for fee simple ownership in perpetuity even though the renewal lease only conveyed surface rights, subject to a 30-day cancellation clause.

    
    

17. In other words, District 6's chief review appraiser was instructing KENDALL's appraiser to use the across the fence appraisal method. This appraisal technique involves the following actions:

    
    

    1. Estimate the market value of the surplus property and the abutting property, as assembled.

    2. Estimate the market value of the abutting property, as it exists (without the surplus property added).

    3. Subtract the estimated market value of the abutting property, as it exists, from the estimated market value of the assembled abutting and surplus properties.

    4. The difference between the two value estimates should yield a supportable indication of market value for the surplus property.

       
       

18. KENDALL's independent appraiser followed the instructions of the chief review appraiser for DOT's District 6. Because of the very limited market data for surplus property leases, KENDALL's appraiser requested DOT's surplus property lease data for Dade County from the chief review appraiser; however, he received no response to his request. Without the requested data, KENDALL's appraiser was unable to use a lease data comparison. In his appraisal, he relied upon market data of the sales of commercial land, exclusively, and determined that the surplus property's highest and best use is to serve as a storage yard for parking trailers and boats, assuming the surplus property could be rezoned or a variance obtained to permit that use.

    
    

19. Based upon the assumption of vacant or undeveloped commercial property and rezoned or variance surplus property for commercial use as a storage yard, the independent appraiser determined that the market value of the surplus property in fee simple was $128,000. He further ascertained that an investor would be satisfied with a 10 percent yield and determined that the across the fence value is an annual rent of $12,800 for a 50 to 100 year lease term, which is the prevailing market rent for the surplus property. The appraisal was accepted by DOT.

    
    

20. Not agreeing with the across the fence method, KENDALL obtained approval from DOT for the submission of a second appraisal for the surplus property. DOT agreed but on the condition that the second appraisal had to be submitted by December 31, 1991.

    
    

21. For the second appraisal, KENDALL'S independent appraiser used the method which he used previously and which was historically accepted by DOT. Again, he determined that the highest and best use of the surplus property was a storage yard, assuming that it could be rezoned or a variance obtained to permit such use. He then determined, as before, that the contributory value (across the fence) value of the surplus property in fee simple was $128,000. Subsequently, the appraiser determined that the fair market value of the surplus property was $32,000 if rezoned and sold in fee simple to the public, including KENDALL. Finally, contrary to the first appraisal, the appraiser determined that the fair market rent for the surplus property was $3,000 a year if the entire parcel could be used as a storage yard and that the surplus property would only produce a nominal rent of $100 a year if leased to the general public. The second appraisal was submitted by DOT's imposed deadline.

22. By letter dated October 9, 1991, the chief review appraiser for DOT's District 6 notified all approved appraisers on its list, including KENDALL's independent appraiser, of the surplus property appraisal policy that would be used. It states in pertinent part:

    
    

    SUBJECT: A STATEMENT OF DISTRICT APPRAISAL POLICY SURPLUS PROPERTY APPRAISALS - THE VALUATION PROCEDURE

    
    

    [I]t is inequitable to examine surplus properties without some evaluation of the abutting property. To be consistent in the appraisals for acquisition and those for sale by the Florida Department of Transportation, subjects should be estimated at their "ATF" or "Across The Fence" value.

    
    

    The surplus property appraisals should be addressed in the same way a "before and after" appraisal is conducted. The current Right of Way Appraisal Standards would be applicable in this assignment.

    The recommended appraisal procedure for surplus properties will be:

    1. Estimate the market value of the surplus

       property and the abutting property, as assembled.

    2. Estimate the market value of the abutting property, as it exists (without the surplus property added).

    3. Subtract the estimated market value of the abutting property, as it exists, from the estimated market value of the assembled abutting and surplus properties.

    4. The difference between the two value estimates should yield a supportable indication of market value for the surplus property.

    
    

    This process is logical and it appears to be reflective of the market. The appraisal problem is complicated by this procedure, but the result should be a more accurate and consistent estimate of market value of surplus property.

    
    

23. In late 1991 or early 1992, KENDALL started the process to obtain a variance from Dade County. In accordance with DOT's requirement, KENDALL absorbed the costs associated with obtaining the variance. As of the date of hearing, KENDALL had expended between $10,000 and $15,000.

    
    

24. Generally, the landowner is responsible for obtaining the variance or rezoning necessary for a lessee to use a leased parcel for its highest and best use. However, if the landowner is not obtaining the variance or rezoning, generally, the lessee receives a reduced rental rate.

    
    

25. In July 1992, the chief review appraiser for DOT's District 6 notified KENDALL that the second appraisal was rejected. He rejected the appraisal without reviewing it.

26. Based on the accepted appraisal, DOT determined that the prevailing market rent for the surplus property was $12,800, plus tax, annually and assessed KENDALL accordingly. Wanting to continue to use the surplus property, KENDALL paid DOT $2,544 as partial payment of the annual rent, plus tax, for the initial year of renewal beginning June 28, 1991 and paid $24,617 for outstanding rent, plus tax, for the period June 28, 1991 through June 27, 1993. KENDALL has continuously paid the annual rent required by DOT.

    
    

27. In May 1994, Dade County issued KENDALL a conditional variance. Assuming KENDALL satisfies numerous local concurrency and planning requirements, the final variance will permit it to use no more than 60 percent of the surplus property for storage purposes. Until rezoning or a variance is obtained, the market rent of the surplus property is $100 to $500 annually according to KENDALL's appraisers.

    
    

28. A real property appraisal is expected to use an appraisal technique which reveals the maximum market value at a given time for the property being appraised. Several appraisal techniques are recognized and accepted by the appraisal profession, including across the fence method or technique. The appraiser initially determines the highest and best use of the parcel being appraised. Then, the sale value of the parcel is determined. The appraised market value is the base for establishing a market rental value for the property.

    
    

29. The appraisal technique or method for surplus property can vary from parcel to parcel. Appraisal methods or techniques other than the across the fence method have been used by other DOT approved appraisers when appraising the fair market value for surplus property and have been accepted by DOT. Usually, surplus properties have a higher value when a contributing value appraisal technique (across the fence technique) is used because such properties are generally small in size and irregular in shape. The prospective buyer for surplus property is generally limited to the abutting parcel user or its competitors.

    
    

30. District 6's chief review appraiser erroneously refused to consider any other appraisal value method, other than the across the fence method, to value the surplus property. DOT admits that its chief review appraiser in District 6 should not have required KENDALL's independent appraiser to use only the across the fence method to determine fair market rent for the surplus property.

    
    

31. For the subject surplus property the market data for leases of DOT's surplus properties in Dade County would have been appropriate data to use in the appraisal. Even though DOT failed to provide KENDALL's appraiser with the market data, DOT did have such data for four leases executed between October 1989 and January 1991. These leases, as is KENDALL's lease, were only for surface use, subject to a 30-day cancellation clause. The data showed that the cancellation clause significantly reduced the market rental rate when leasing surplus property and that the market rental rate of return was between 1.89 percent and 2.62 percent per year to the respective owners.

    
    

32. The data from DOT's surplus property leases would have been used by KENDALL's appraiser if it had been provided to him. Based upon the data of the surplus property leases, KENDALL's appraiser determined that the owner of the surplus property would receive annual rent equalling between 1.89 percent and

    2.62 percent of the amount that the surplus property would produce if it was fully developed as commercial property and sold in fee simple.

33. In February 1994, KENDALL obtained the services of another appraiser from DOT's approved list of independent appraisers to perform an independent appraisal for the fair market value of the surplus property for the period beginning July 1, 1991. Prior to obtaining his services, KENDALL did not request DOT to accept another appraisal. First, the appraiser determined that comparably-sized commercial property in Dade County, providing maximum utility, had a fair market value of $140,000 in a fee simple sale. Next, he determined that the highest and best use of the surplus property was for storage purposes, which reduced the value of the surplus property in fee simple by 57 percent. Even though the appraiser determined that KENDALL was the logical purchaser of the surplus property, he also determined that, due to KENDALL having fully developed its abutting property and not being able to economically build on the surplus property, the surplus property would not provide a maximum utility to KENDALL's abutting property. Based upon such market factors, the appraiser determined that the surplus property had a fair market value of $35,000 if sold in fee simple for storage purposes. Therefore, assuming a variance or rezoning could be obtained by KENDALL to use the surplus property for storage purposes, the appraiser determined that the fair market rent for the surplus property was

    $3,500 as of July 1, 1991.

    
    

34. DOT never performed an appraisal of the surplus property.

    
    

    CONCLUSIONS OF LAW

    
    

35. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto, pursuant to Section 120.57, Florida Statutes.

    
    

36. KENDALL has the burden to prove by a preponderance of the evidence that DOT is requiring it (KENDALL) to pay for the use of the surplus property in an amount exceeding prevailing market rent in contravention of Section 337.25(5), Florida Statutes. State Department of Transportation v. J. W. C. Co., 396 So.2d 778 (Fla. 1st DCA 1981).

    
    

37. Section 337.25(5), Florida Statutes, provides in pertinent part:

    
    

    1. The department may convey a leasehold interest for commercial or other purposes, in the name of the state, to any land, building, or other property, real or personal, which

       were acquired under the provisions of subsection (1).

       1. The department may negotiate such a lease at the prevailing market value . . . with the owner holding title to all privately owned abutting property . . .

    * * *

    (c) No lease signed pursuant to paragraph

    (a) . . . shall be for a period of more than

    5 years. . . .

38. Rule 14-19.012, Florida Administrative Code, provides in pertinent part:

    
    

    1. When Department-owned property is to be leased, an appraisal shall be prepared in accordance with Rule Chapter 14-95, F.A.C.

       The Department shall determine if the appraisal may be made by a staff appraiser or an independent fee appraiser, depending upon workload and budget availability within the appropriate District.

       If the potential property owner to whom the property shall be leased chooses to use an independent fee appraiser, the appraiser must

       be on the Department's list of approved appraisers or be approved by the Department pursuant to

       Rule Chapter 14-95.

       1. The prospective lessee shall obtain and pay for the appraisal of the real property to be leased, unless the Department provides a staff appraiser to prepare the appraisal.

       2. The rental rate to be charged shall be the fair market rental value, as determined by the appraisal. . . .

    * * *

    (3) All appraisals shall be reviewed and approved by the Department pursuant to Rule 14-95.001, F.A.C. The appraisal is not valid

    nor is the value determined until FDOT [Florida Department of Transportation] approval.

    
    

39. It is uncontroverted that KENDALL's appraiser for both the first and second appraisals and its third appraiser were on DOT's list of approved appraisers.

    
    

40. Section 337.25(5) authorizes DOT to negotiate a lease of the surplus property with KENDALL at the prevailing market value. Furthermore, in accordance with Rule 14-19.012(1) and (3), the rental rate of the surplus property is the fair market rental value, which is determined by the appraisal, and neither the appraisal nor the fair market rental value is valid until they are approved by DOT.

    
    

41. Generally, an agency's interpretation of statutes should be given great deference and should not be overturned unless clearly erroneous. Maclen Rehabilitation Center v. Department of Health and Rehabilitative Services, 588 So.2d 12, 13 (Fla. 1st DCA 1991); Woodley v. Department of Health and Rehabilitative Services, 505 So.2d 676, 678 (Fla. 1st DCA 1987). Moreover, an agency's interpretation need not be the sole possible interpretation or even the most desirable one; it need only be within the range of possible interpretations. Department of Professional Regulation, Board of Medical Examiners v. Durrani, 455 So.2d 515, 517 (Fla. 1st DCA 1984).

    
    

42. The evidence is uncontroverted that, prior to June 1991, DOT's District 6 had accepted and approved appraisals of surplus property, which used appraisal methods other than the across the fence method, including such appraisals from KENDALL's appraiser. However, in KENDALL's situation, DOT's District 6 would only accept and approve appraisals using the across the fence method. Moreover, in October 1991, District 6's chief review appraiser sent a

    policy statement to all appraisers on its approved list that provided that the across the fence value method would be used for all appraisals of its surplus property. Clearly, DOT's District 6 had changed its position regarding the appraisal of its surplus property, starting with KENDALL in June 1991 and culminating with a policy statement in October 1991.

    
    

43. DOT has not presented evidence providing a reasonable explanation for inconsistent results based upon similar circumstances involving the market rent value of surplus property in KENDALL's situation. St. Johns Utility Corp. v. Public Service Commission, 549 So.2d 1066, 1069 (Fla. 1st DCA 1989); J.W.C. Co., supra, at 789. Consequently, the market value assessed by DOT to the surplus property abutting KENDALL's property, per the first appraisal performed using the across the fence value method, cannot be upheld to represent the prevailing market value as required by Section 337.25(5) and is, therefore, invalid.

45. Having determined that the present market rental value is invalid, the question now becomes what is the market rental value of the subject surplus property? All appraisals must be reviewed and accepted by DOT before they can be valid and used to determine the fair market rental of surplus property, and no value is valid until it is approved by DOT. Rule 14-19.012, Florida Administrative Code. DOT reviewed and accepted the first appraisal presented by KENDALL's appraiser using, as directed by DOT, only the across the fence value method. The prevailing market rent under this appraisal was $12,800 annually. However, the appraiser's second appraisal was not reviewed or accepted by DOT although it was authorized by DOT and used traditional appraisal methods accepted and approved by DOT for surplus property. The prevailing market rent under this appraisal was $3,000 annually. Additionally, there was no evidence presented showing why DOT did not review or accept the second appraisal other than the position that the across the fence value method was not used.

1. Also, there was a third appraisal which was not authorized by DOT and performed by another appraiser. This third appraisal considered the market rental value of like surplus properties in Dade County, which was not considered in the second appraisal because DOT did not provide the data, as requested, for the second appraisal. The prevailing market rent under this appraisal was

   $3,500.

   
   

2. Under the totality of the circumstances of this case, it is reasonable to rely upon the second authorized appraisal to ascertain the market rental value of the surplus property. This appraisal was submitted to DOT in December 1991. This case was filed with the Division of Administrative Hearings (DOAH) in November 1993, which unquestionably put DOT on notice that KENDALL was going to challenge DOT. Using the time of referral of this case to DOAH as the point of reference, the market rent of $3,000 annually was effective in November 1993. As a result, the difference between the annual rent of $12,800 and $3,000 should be refunded to KENDALL by DOT, beginning in November 1993.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that DOT enter a final order that the market rental value

assessed to the surplus property leased to and paid by KENDALL is invalid, as exceeding prevailing market rent, that the prevailing market rent for the surplus property is $3,000 annually and that DOT refund to KENDALL the difference between a market rent of $12,800 annually and $3,000 annually, beginning in November 1993.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 2nd day of March 1995.

ERROL H. POWELL

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 2nd day of March 1995

ENDNOTES

1/ Some exhibits had multiple parts, e.g., A, B, C. 2/ Ibid.

APPENDIX

The following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact

Stipulated Facts

1. Partially accepted in finding of fact 1.

2. Partially accepted in finding of fact 2.

3. Partially accepted in finding of fact 3.

4. Partially accepted in finding of fact 5.

5. Partially accepted in findings of fact 3 and 7.

6 and 7. Partially accepted in finding of fact 12.

8 and 9. Partially accepted in finding of fact 13.

1. Partially accepted in findings of fact 15 and 16.

2. Partially accepted in finding of fact 18.

3. Partially accepted in findings of fact 18 and 19.

1. and 14. Partially accepted in finding of fact 21.

   15. Partially accepted in finding of fact 25.

   16-19. Partially accepted in finding of fact 26.

   
   

   Findings of Fact

   
   

   1. Partially accepted in finding of fact 4.

   2. Partially accepted in finding of fact 5.

   3, 4 and 7. Partially accepted in finding of fact 9.

   1. Partially accepted in finding of fact 8.

   2. Partially accepted in finding of fact 10.

   1. Partially accepted in finding of fact 11.

   2. Partially accepted in findings of fact 9 and 12.

   3. Partially accepted in findings of fact 17 and 21.

   4. Partially accepted in finding of fact 12.

   5. Partially accepted in finding of fact 13.

   6. Partially accepted in finding of fact 14.

2. and 15. Partially accepted in findings of fact 15 and 16.

16. Partially accepted in finding of fact 22. 17, 18 and 28. Rejected as subordinate.

19 and 20. Partially accepted in finding of fact 30.

21. Partially accepted in findings of fact 14 and 33. 22-25. Rejected as subordinate, or argument.

26, 27 and 29. Partially accepted in finding of fact 18. 30-32. Partially accepted in finding of fact 19.

33. Partially accepted in finding of fact 20.

34-38. Partially accepted in finding of fact 21.

39, 46, 50 and 51. Partially accepted in findings of fact 31 and 32.

40 and 41. Partially accepted in finding of fact 21, 31, and 32.

42 and 43. Partially accepted in finding of fact 25.

1. Partially accepted in finding of fact 29.

2. Partially accepted in finding of fact 19.

47 and 49. Partially accepted in finding of fact 31.

48. Partially accepted in finding of fact 32.

52-58. Partially accepted in finding of fact 33.

1. Partially accepted in findings of fact 18, 21, 26 and 33.

2. Rejected as subordinate.

61, 63 and 64. Rejected as argument, or conclusion of law.

62. Partially accepted in finding of fact 34.

65 and 66. Partially accepted in finding of fact 23.

67. Partially accepted in finding of fact 24.

68 and 69. Partially accepted in finding of fact 27.

Respondent's Proposed Findings of Fact

(Respondent's proposed findings begin with paragraph numbered 20.)

20. Partially accepted in finding of fact 1.

21 and 41. Partially accepted in finding of fact 3

22-30, 37-40, 45, 47, 51, 54, 58, 61, 62, 63, 65, 75, 78, 79, and 94.

Rejected as subordinate.

1. Partially accepted in finding of fact 5.

2. Partially accepted in findings of fact 3 and 27. 44, 46 and 52. Partially accepted in finding of fact 4.

48, 49, 56 and 76. Partially accepted in finding of fact 8.

50. Partially accepted in findings of fact 4 and 9.

53. Partially accepted in findings of fact 18, 21, 23 and 27.

55. Partially accepted in finding of fact 7.

57, 60, 64, 66, 67, 70-71 and 91. Partially accepted in finding of fact

28.

59, 88, 98 and 110. Rejected as argument, or conclusion of law.

69. Partially accepted in findings of fact 28 and 29.

72 and 73. Partially accepted in finding of fact 29.

74. Partially accepted in findings of fact 17 and 28.

77. Partially accepted in finding of fact 12.

80. Partially accepted in findings of fact 11 and 12. 81-82. Partially accepted in finding of fact 13.

1. Partially accepted in finding of fact 16.

2. Partially accepted in finding of fact 18.

1. and 93. Partially accepted in findings of fact 16 and 17.

2. and 87. Partially accepted in findings of fact 18 and 19.

89 and 99. Partially accepted in finding of fact 19.

90, 92,100, and 109. Rejected as contrary to the greater weight of the evidence.

95. Rejected as irrelevant, or unnecessary.

96 and 97. Partially accepted in finding of fact 21. 101-105. Rejected as subordinate, or irrelevant.

NOTE--Where a proposed finding has been partially accepted, the remainder has been rejected as being irrelevant, unnecessary, cumulative, subordinate, not supported by the greater weight of the evidence, argument, or conclusion of law.

COPIES FURNISHED:

Timothy G. Schoenwalder, Esquire Blank, Rigsby & Meenan, P.A. Post Office Box 11068 Tallahassee, Florida 32302-3068

Charles G. Gardner, Esquire

Florida Department of Transportation 605 Suwannee Street, M.S. 58

Haydon Burns Building Tallahassee, Florida 32399-0458

Ben G. Watts Secretary

Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street

Tallahassee, Florida 32399-0458

488-6721

Thornton J. Williams General Counsel

Florida Department of Transportation Haydon Burns Building, M.S. 58

605 Suwannee Street

Tallahassee, Florida 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.

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION

MINI-WAREHOUSES AT KENDALL,

LTD., d/b/a A+ Mini-Storage,

Petitioner,

DOAH CASE NO: 93-6643

vs. DOT CASE NO: 93-0652

DEPARTMENT OF TRANSPORTATION,

Respondent,

/

FINAL ORDER

This proceeding was initiated by a Petition For Formal Administrative Hearing filed by Petitioner, MINI WAREHOUSES AT KENDALL, d/b/a A+ Mini-Storage, (hereinafter MINI WAREHOUSES), on October 29, 1993. The Petition For Formal Administrative Hearing was filed in response to a notice issued by Respondent, DEPARTMENT OF TRANSPORTATION, (hereinafter DEPARTMENT), on May 3, 1991, which

unilaterally terminated an original real property lease and required MINI WAREHOUSES to execute a new lease at a then undetermined increase in cost. The matter was referred to the Division of Administrative Hearings for a formal hearing, pursuant to Section 120.57(1), Florida Statutes.

FINDINGS OF FACT

1. A final hearing was held in Miami on July 12-13, 1994, before Errol H. Powell as duly-designated Hearing Officer.

   
   

2. The parties subsequently entered into a Stipulation and Settlement dated April 12, 1995, rendering the Recommended Order moot and wherein MINI WAREHOUSES voluntarily dismissed this proceeding.

CONCLUSIONS OF LAW

1. The DEPARTMENT has jurisdiction over the subject matter of and the parties to this proceeding pursuant to Sections 120.57 and 337.25(5), Florida Statutes.

   
   

2. MINI WAREHOUSES having voluntarily dismissed this proceeding, this proceeding should be dismissed

ORDER

Based on the foregoing Findings of Fact and Conclusions of Law, it is therefore

ORDERED that the Petition for Formal Administrative Proceeding filed by MINI WAREHOUSES is dismissed.

DONE AND ORDERED this 23rd day of June, 1995.

BEN G. WATTS, P.E.

Secretary

Florida Department of Transportation 605 Suwannee Street

Haydon Burns Building Tallahassee, Florida 32399

NOTICE OF RIGHT TO APPEAL

THIS ORDER CONSTITUTES FINAL AGENCY ACTION AND MAY BE APPEALED BY AN ADVERSELY AFFECTED PARTY PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND RULE 9.110, FLORIDA RULES OF APPELLATE PROCEDURE, BY FILING A NOTICE OF APPEAL CONFORMING TO THE REQUIREMENTS OF RULE 9.110(D), FLORIDA RULES OF APPELLATE PROCEDURE, BOTH WITH THE APPROPRIATE DISTRICT COURT OF APPEAL, ACCOMPANIED BY THE APPROPRIATE FILING FEE, AND WITH THE DEPARTMENT'S CLERK OF AGENCY PROCEEDINGS, HAYDON BURNS BUILDING, 605 SUWANNEE STREET, M.S. 58, TALLAHASSEE, FLORIDA 32399-0458, WITHIN THIRTY (30) DAYS OF RENDITION OF THIS ORDER.

COPIES FURNISHED:

Timothy G. Schoenwalder, Esquire Blank, Rigsby & Meenan, P.A. Post Office Box 11068 Tallahassee, Florida 32302

Richard Glass

District Right-of-Way Manager Department of Transportation District VI

1000 N.W. 111th Avenue Miami, Florida 33172

Charles G. Gardner, Esquire Assistant General Counsel

Florida Department of Transportation 605 Suwannee Street, M.S. 58

Tallahassee, Florida 32399-0458

Caroline Fleurissaint Deputy State Administrator of Outdoor Advertising Office of Right-of-Way

Department of Transportation Haydon Burns Building, M.S. 22 605 Suwannee Street

Tallahassee, Florida 32399-0422

Errol H. Powell Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

STIPULATION STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MINI-WAREHOUSES AT KENDALL,

LTD., d/b/a A+ Mini-Storage,

Petitioner,

CASE NO. 94-2967RU

vs. 93-6643

STATE OF FLORIDA, DEPARTMENT OF TRANSPORTATION,

Respondent.

/

STIPULATION

Petitioner, Mini-Warehouse at Kendall, Ltd., d/b/a A+ Mini-storage, and Repondent, State of Florida, Department of Transportation, hereby stipulate and agree as follows:

1. By this stipulation, the parties have resolved all issues raised in the above-referenced cases.

   
   

2. Petitioner agrees to pay to Respondent $5,000 by cashier's check upon delivery to Petitioner by Respondent of a quit claim deed to that certain real property consisting of .927 acres which has been the subject of a written surplus property lease between the parties dated June 28, 1985.

   
   

3. The parties agree that execution of this stipulation by their respective counsel and fulfillment of the terms hereof render the Recommended Order in case no 93-6643 moot and of no effect. As such, the filing of this stipulation constitutes a voluntary dismissal of that action.

4, The parties further agree that each shall bear its own attorney's fees and costs incurred in both of the above-styled actions and in connection with the issued raised therein as well as the transaction contemplated by this stipulation.

DATED this 12th day of April, 1995.

Timothy G. Schoenwalder, Esquire Charles G. Gardner, Esquire Blank, Rigsby & Meenan, P.A. Assistant General Counsel Counsel for Petitioner Department of Transportation

P. O. Box 11068 605 Suwannee St., 58 Tallahassee, Florida 32302-3068 Tallahassee, FL 32399-0458

COPIES FURNISHED:

Errol Powell Hearing Officer

Div. of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Timothy G. Schoenwalder, Esq. Blank,Rigsby & Meenan, P.A.

P.O. Box 11062

Tallahassee, Florida 32302-3062

Charles G. Gardner, Esq.

Florida Department of Transportation 605 Suwannee Street, M 52

Tallahassee, Florida 32399-0452

Ben G. Watts Secretary

Florida Department of Transportation 605 Suwannee Street, MS 58

Tallahassee, Florida 32399-0452

Thornton J. Williams General Counsel

Florida Department of Transportation 605 Suwannee Street,

Tallahassee, Florida 3299-0456

Carroll Webb, Executive Director Administrative Procedures Committee

120 Holland building Tallahassee, Florida 3299-1300

Liz Cloud, Chief

Bureau of Administrative Code Department of State

The Elliott Building Tallahassee, Florida 32399-0250

Docket for Case No: 93-006643

Orders for Case No: 93-006643