vs. ) Case No. 98-3300
A hearing was held in this case in New Port Richey, Florida, on October 27, 1998, before Arnold H. Pollock, an Administrative Law Judge with the Division of Administrative Hearings.
For Respondent: Andrea V. Nelson, Esquire
The issue for consideration in this case is whether Petitioner received appropriate relocation assistance for her home and business as a result of the Department’s taking.
By letter dated September 26, 1998, Bud Eddleman, the Department of Transportation’s state relocation administrator,
advised Petitioner and her husband that their appeal of the amount of relocation assistance afforded them relating to their forced move from their property at 15552 Northgate Lane in Spring Hill, Florida, had been denied. Petitioner was afforded the right to request formal hearing, which she did, and this hearing ensued. The request for formal hearing was submitted to the Department on December 1, 1997, but this matter was not forwarded to the Division of Administrative Hearings until July 21, 1998, almost seven months later. No explanation was given for this delay.
At the hearing, Petitioner testified in her own behalf. She also adopted as a composite exhibit all the documentation she had provided to Respondent in response to the Department’s request.
Respondent presented the testimony of Norris L. Smith, an employee of the engineering firm hired by the Department to administer the relocations on the project in issue; David Cole, a relocation specialist employed by a company retained by the Department in connection with the instant acquisition; and Richard T. Eddleman, state relocation administrator for the Department. Respondent also introduced Respondent’s Exhibits 1 through 9.
A transcript of the proceedings was furnished. Subsequent to the receipt thereof, both parties submitted matters in writing which were carefully considered in the preparation of this Recommended Order.
For several years during the mid to late 1990’s, and specifically during 1996 and 1997, the Department of Transportation was engaged in acquiring property in Pasco County, Florida, for the construction of the Suncoast Parkway, a new corridor which, when completed, will extend approximately 42 miles from the Veteran’s Expressway in Hillsborough County in the south to a connection with US Highway 98 in Hernando County in the north. In support of that project, it became necessary for the Department to acquire approximately 639 individually owned parcels of land.
To facilitate the planning for and purchase of this property, the Department utilized the services of several engineering firms, including the firm of Post, Buckley, Schuh, and Jernigan, Inc., (PBS&J). PBS&J’s manager for this project was Norris Smith, who has been employed with the company in this type of work for approximately eight years. PBS&J, as general consultant for the Turnpike District, also manages other firms working on road construction projects for the Department. Included among these firms utilized on the Suncoast Parkway project were Gulf Coast Property Acquisitions (Gulf Coast), and Universal Field Services (Universal).
In acquiring the identified individual parcels which make up a specific project, the procedure usually followed calls for a relocation specialist to make the original calculation of
the relocation payment to the property owner. This calculation is then put through a review process during which it is evaluated for approval by the project manager. In the instant case, the initial relocation specialist was Gary South, an employee of Gulf Coast, who made the initial relocation contact with the Petitioner. However, Mr. South took ill in January 1997, and was replaced on this project by David Cole. Mr. Cole has worked with Gulf Coast as a relocation specialist since 1993, and, since 1970, has worked as a relocation specialist under the Uniform Relocation Assistance Act (Act) in five states. He has participated in relocations involved in approximately 70 parcel acquisitions on the Suncoast Parkway project.
Relocations of individuals displaced as a result of property acquisitions for road construction are accomplished under the guidelines of the Uniform Relocation Assistance Program memorialized in 24 C.F.R., Part 24. These guidelines have been adopted by the State of Florida and are incorporated in the Department of Transportation’s Rule 14-66.
Once the Department is tasked to undertake a construction project in which land is to be acquired or businesses are to be relocated, it conducts one or more public hearings in the area of development to explain the scope and dimensions of the project. After that, relocation specialists visit each residence and business to speak with the resident or business owner and conduct a needs assessment survey which is
supposed to be used as a guide to determine the type of relocation assistance necessary. It is at this visit that the relocation specialist provides the resident or business owner with a relocation brochure which explains the process and the displacee’s rights and responsibilities in detail.
The displacee’s prior term of tenancy of the property determines his/her eligibility level for relocation assistance payments. If the resident/occupant has been in the property for
180 days or more, he or she is eligible for relocation payments of up to $22,500 in addition to benefits to cover moving personal property to the new dwelling. If the resident/occupant has been a tenant in place for 90 to 179 days, he or she is eligible for a rental assistance payment not to exceed $2,500 which may be used either FOR rent payments on a replacement rental property or as a down payment on the purchase of a new home.
Consistent with the described procedure, Gary South conducted the needs assessment survey of Petitioner’s household in February 1996 during which he informed Ms. Dornseif of the relocation services available. It was determined during that survey that there were two residences as well as three business on the Dornseif property. One of the residences was occupied by Petitioner and her family. The other residence was occupied by Petitioner’s father, Mr. DeClue. Mr. DeClue was determined to be a 180-day homeowner/occupant eligible for benefits, while Petitioner was classified as a 90-day tenant and eligible for
rental assistance payments and move costs. This information was conveyed to Petitioner by Mr. South.
After Mr. South became ill and Mr. Cole took over from him as relocation specialist for this property, Mr. Cole met with Petitioner to update the survey and determine that the information previously developed by Mr. South was still accurate. Cole also reiterated the relevant information regarding the relocation advisory services for which Petitioner was eligible. Included in this advice was the information regarding rental assistance payments, as well as the information necessary to calculate that figure. Mr. Cole specifically advised Petitioner that she could utilize the rental assistance payment as down payment on a home.
In connection with this move, Mr. Cole updated the household survey relating to the number of people in the home and the number of rooms contained in the house. He also delivered to Petitioner the residential relocation brochure, explained his participation in the process, and delivered the original Notice of Eligibility. He also delivered a statement of eligibility and gave Petitioner a briefing of the amount of money available as a rent supplement and how it was calculated. In addition, he provided Petitioner with a list of available properties.
In addition to the verbal communication by Mr. Cole, all the pertinent and necessary information regarding relocation assistance was also included with a Notice of Eligibility which
the Department served on Petitioner on July 19, 1996. By this notice, Petitioner was advised of her eligibility for a relocation assistance payment, but because the specific amount of payment is dependent upon financial input from the individual being displaced, the exact dollar amount of the payment may not be available when the eligibility notice is issued. That was the case here.
Ms. Dornseif acknowledged receipt of her Notice of Eligibility on July 19, 1996, but because she had not submitted all relevant and required financial information to the Department by the time of eligibility determination, the exact amount of payment had not been determined. Petitioner was informed of that fact and the reason for it. In fact, the required rental and income information needed to calculate the amount of payment to be made was not received by the Department until approximately one year later, when it was submitted by Petitioner’s attorney. Once the required financial information was received by the Department, however, a revised Notice of Eligibility was issued on June 17, 1997, which included the amount to be paid by the Department.
According to the Department’s calculations, based on information submitted by the Petitioner, Ms. Dornseif was to receive a rental assistance payment of $7,440.12. This figure was based on the difference between the rental and utility costs at the former dwelling and the rental plus utility costs at the
replacement dwelling. Under the formula for calculating payment, the difference is multiplied by 42 so as to provide displacement costs to cover 42 months. In implementing the formula, the replacement rental is based on the rental costs of a comparable dwelling on the market at the time of the assessment. It appears that though the land on which the mobile home occupied by Petitioner was located was owned by her, her husband, and her father, Mr. DeClue, the actual residence was owned by her father. It was for that reason that Petitioner was eligible for the rental supplement as opposed to the other allowance. She claims she made all this information known to the Department in advance and was assured it was “OK,” but now asserts she did not know, and was not told at the time, that there was a maximum for rental supplements.
The maximum cap for rental assistance payments is set by law at $5,250. This is less than the amount received by the Petitioner. However, there is a provision in the law for exceeding the cap upon justification by the Department in writing to the federal government. Because of market conditions at the time of the search for comparables for Petitioner, the comparable used in the calculation was the best available. This information regarding the regulatory cap, the calculations made in this case, and the effect that current market conditions had on the calculations, were explained to Petitioner by Mr. Cole.
With regard to the actual move by Petitioner from the
former residence to the replacement dwelling, Petitioner after being fully briefed both in writing and by Mr. Cole on the procedure to be followed, chose to be reimbursed for the actual costs of the move by a commercial mover. She was instructed to obtain estimates from two commercial movers and advised she would be reimbursed the lower of the two estimates. This was
$5,728.62. After the move was completed, Petitioner submitted receipts for the commercial move totaling approximately
$6,074.94, but she was reimbursed the $5,662.94. The reduction was made because of some duplications and claims for ineligible items, but Petitioner was dissatisfied with the amount paid.
Petitioner also was eligible for reimbursement for the move of her business. In this case, she chose an “in lieu of” payment instead of actual reimbursement for a commercial move. She elected to do this after she had been personally briefed by Mr. Cole on the options available to her for this part of the move. She claims she was told by Department personnel she would receive a fixed amount for the business plus a reimbursement for the business move, but she now contends she received no reimbursement.
Petitioner is not satisfied with the relocation assistance payments made to her, claiming that the amounts finally offered were approximately one-half the amount initially estimated by Department personnel. She asserts that all the original estimates by Department personnel were reduced and cut,
and she received far less than she was led to expect. She claims her neighbors, who had resided nearby for a far shorter time than she got far more than she did.
Petitioner requested that the Department’s calculations of the amounts to be paid to her be independently reviewed. Niether individual who performed the recalculations made any changes to the amounts determined payable. Petitioner then requested another review by a higher authority, and the matter was referred to Paula Warmath, at the time the Right-of Way Manager for the Turnpike District. After her review of the matter, Ms. Warmath did not make any changes to the payment amounts.
Petitioner’s next appeal was to Richard Eddleman, the Department’s State Relocation Administrator, the final review authority for relocation assistance appeals. Mr. Eddleman obtained the complete relocation files maintained by the Department on this case, carefully reviewed it, spoke with relevant Turnpike district personnel, and recalculated the relocation assistance payments. Based on his review of the file, Mr. Eddleman concluded that the relocation assistance payments for Petitioner had been properly calculated according to the established rules. This decision was communicated to Petitioner.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this
case. Section 120.57(1), Florida Statutes.
Petitioner is seeking a determination that the Department improperly determined her relocation payments regarding her forced relocation from her former residence as a result of the Department’s project. She has the burden of proof to establish her position by a preponderance of the evidence. Florida Department of Transportation v. J.W.C. Co. Inc. and the Department of Environmental Regulation, 396 So. 2d 778 (Fla. 1st DCA 1981).
The rules for providing relocation assistance on roadway projects are contained in Chapter 14-66, Florida Administrative Code, which incorporates by reference 49 C.F.R. Part 24. This provision, known as the Uniform Relocation Assistance and Real Property Acquisition Regulations, was promulgated consistent with Public Law 91-646.
Rule 14-66.003(8), Florida Administrative Code, defines a “displaced person” as any person displaced according to 49
C.F.R Part 24.2(g), which, itself, defines a displaced person as “any person who moves from the real property or moves his or her personal property from the real property . . . .” Rule 14.66.009, Florida Administrative Code makes replacement housing payments available to those displaced persons classified as either 180-day homeowner occupants or 90-day occupants.
Distinction is made in the rule between homeowner/occupants and tenants, the former being described as
those who have owned and resided in the home for at least 180 days; and the latter being described as tenants, who have rented and resided in the dwelling for at least 90 days. Whereas
180-day homeowner/occupants are entitled to a relocation payment purchase additive not to exceed $22,500, the 90-day tenant is not entitled to the purchase additive. He or she is, however, entitled to a rental assistance payment not to exceed $5,250.
The federal rule under which this program is operated also sets standards of documentation required for claims for relocation payments. At Section 24.207, 49 C.F.R. provides:
Documentation. Any claim for a relocation payment shall be supported by such documentation as may be reasonably required to support expenses incurred, such as bills, certified prices, appraisals, or other evidence of such expenses. A displaced person must be provided reasonable assistance necessary to complete and file any required claim for payment.
Similar provisions for moving and related expenses and for business moves, and “in-lieu-of” moves are found in Sections 24.301, 24.302, 24.303, 24.305, and 24.305, Subpart D, 49 C.F.R.,
Part 24.
Taken together, the evidence of record clearly indicates that the Department properly complied with the pertinent rules and regulations relating to relocation assistance payments in its relationship with the Petitioner. It is quite evident that Petitioner had an unrealistic misconception of what she was to receive from the Department, and when she got less
than what she expected, her dissatisfaction was then compounded by the receipt by neighbors of more than she received.
The burden of proof rests with the Petitioner to demonstrate by a preponderance of the evidence that the Department’s calculations were in error. She has failed to do this, presenting no independent documentation or evidence in support of her position other than her own recollection of the events and the documentation relied upon by the Department in its determination. On the other hand, the Department has shown both a regulatory and an evidentiary basis for its determination, which is found to be legally correct and factually appropriate.
Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Transportation enter a Final Order affirming the relocation assistance payments previously calculated for Petitioner.
DONE AND ENTERED this 15th day of December, 1998, in Tallahassee, Leon County, Florida.
_ ARNOLD H. POLLOCK
this 15th day of December, 1998.
Andrea V. Nelson, Esquire Department of Transportation 605 Suwannee Street
Thomas F. Barry, Secretary Department of Transportation Haydon Burns Building
All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.
