STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THOMAS L. THOMAS,

Petitioner,

vs.

JACKSONVILLE TRANSPORTATION AUTHORITY,

Respondent.

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) Case No. 01-4836

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RECOMMENDED ORDER

Notice was provided, and a formal hearing was held on May 24, 2002, in Jacksonville, Florida, and conducted by Harry L. Hooper, Administrative Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Thomas L. Thomas, pro se

Route 1, Box 223T Nahunta, Georgia 31553

For Respondent: David Cohen, Jr., Esquire

John C. Sawyer, Jr., Esquire Edwards & Cohen, P.A.

200 North Laura Street Jacksonville, Florida 32202

STATEMENT OF THE ISSUE

Whether the comparable replacement dwellings used by the Jacksonville Transportation Authority (JTA) in the computation of the replacement housing payment offered to Petitioner were sufficient under the requirements of Title 49 C.F.R., Part 24,

as adopted under the Florida Department of Transportation Right of Way Manual (Right of Way Manual), and whether Petitioner's property had water access which could be considered a compensable major exterior attribute of Petitioner's residential dwelling.

PRELIMINARY STATEMENT

In November of 2000, Petitioner was informed by the JTA that his residential property would be acquired by the JTA, in connection with the construction of a portion of a roadway known generally as the Wonderwood Connector.

Respondent offered Petitioner $32,300.00, the appraised fair market value for his property, which was identified by the JTA as Parcel 404. Petitioner consented to the purchase by entering into a Consent Order of Taking dated April 21, 2001.

In accordance with the Florida Department of Transportation Right of Way Manual and Title 49 C.F.R., Part 24, Petitioner was also eligible for a replacement housing payment (RHP). It is the determination of the amount of RHP which generated this dispute.

Petitioner was offered an RHP additive of $35,600.00. This amount was calculated by determining the cost of three comparable replacement dwellings, which were believed to be functionally equivalent to the displacement parcel.

Petitioner demanded a larger payment and, on June 6, 2001, appealed internally to the JTA. On September 4, 2001, The JTA notified Petitioner that his appeal was denied and that he was entitled to have a hearing before the Division of Administrative Hearings.

In a document filed with the JTA on September 24, 2001, Petitioner requested a hearing before the Division of Administrative Hearings (the Division). The JTA forwarded the request to the Division and the request was filed on

November 29, 2001.

A formal hearing was set for February 26, 2002, in Jacksonville, Florida. Subsequently, Petitioner requested a continuance, which was granted. The hearing was re-scheduled for April 10, 2002. Thereafter, the JTA requested a continuance. The case was set for April 12, 2002; then Petitioner requested another continuance. Petitioner's request was granted and the case was set for May 24, 2002, and heard as scheduled, in Jacksonville, Florida.

The JTA presented the testimony of Michael Dayger, the right of way acquisition agent for the JTA; Tony Shoultz, an employee in the Real Estate Acquisition Department of the JTA; and Ron Moody, the person who appraised Parcel 404. The JTA offered 7 exhibits which were accepted into evidence.

Petitioner presented no testimony, but offered into evidence 19 exhibits, 14 of which were admitted. Petitioner's admitted exhibits, consisted primarily of documents relating to the chain of title to Parcel 404 and the bottom of a nearby saltwater creek. Petitioner claimed the chain of title proved that he was entitled to an easement which provided him access to the creek. However, record title demonstrated that the City of Jacksonville was the owner of the right of way with regard to the creek. An administrative law judge is without jurisdiction to consider evidence which attacks the validity of record title to real estate.

A Transcript was not ordered. Both parties timely filed Proposed Recommended Orders which were considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. The JTA is a state-chartered authority which is responsible for providing mass transit and building roads and bridges in Jacksonville, Florida.

2. Petitioner is a commercial fisherman who owned two parcels of land in the eastern part of Jacksonville. He fished the local waters utilizing a boat which he owned.

3. The two parcels of land owned by Petitioner were taken by the JTA under threat of condemnation. The JTA required this land so that it could be used in connection with a road

   construction project known as the Wonderwood Connector. The two parcels of land were situated adjacent to and on the south side of an unimproved public right-of-way known as Wonderwood Drive. The two parcels of land were internally identified by the JTA as Parcels 400 and 404. Only Parcel 404 is the subject of this case.

4. Parcel 404 had an appraised value of $32,300.00 which the JTA offered to Petitioner for the fee simple title, and which Petitioner accepted.

5. In addition to the value of the fee simple property, Petitioner was also eligible under the applicable statutes and guidelines to an RHP. Petitioner was eligible for a RHP because the cost of comparable replacement housing was in excess of the fair market value of $32,300.00 for Parcel 404.

6. Respondent offered Petitioner an RHP of $35,600.00, which was based on an analysis of three comparable replacement dwellings in accordance with the requirements and procedures of Title 49, C.F.R, Part 24, as adopted by the Right of Way Manual. The JTA uses the Right of Way Manual in its acquisition programs for road, bridge, and highway construction.

7. The comparable replacement dwellings used for computing the RHP were single family houses located 6.5 miles, 7.4 miles, and 6.4 miles from Parcel 404. They were functionally equivalent to Petitioner's displacement dwelling. Additionally,

   the comparable replacement dwellings used performed the same function, and provide a comparable or better style of living, as the displacement dwelling. The comparable replacement dwellings were reasonably accessible to Petitioner's place of employment. In other words, they were reasonably located near saltwater.

8. Parcel 404 was not adjacent to any body of water. The title to Parcel 404 did reserve to the owner the right to use a platted easement for pedestrian access to Greenfield Creek, which was a saltwater creek. This easement was located south of Wonderwood Drive. This easement was not, by its terms, available for commercial uses and in fact was not used by Petitioner.

9. North of Parcel 404, and slightly to the east, across Wonderwood Drive, Petitioner, prior to his difficulties with the JTA, maintained a floating dock on Greenfield Creek at which he moored his commercial fishing boat. Access to the dock was located on a right-of-way owned by the City of Jacksonville. It was convenient for Petitioner to walk across the road, embark on his boat, and go about his business as a fisherman. Petitioner believed that he had a right to ingress the area of the floating dock and believed he should have been compensated for the loss of this convenience as part of his RHP.

10. The comparable properties used to determine the RHP were not so convenient to saltwater and, had Petitioner lived on

    any of the properties, he would have found it necessary to pull his boat on a trailer to a public launching ramp in order to conduct his fishing business.

11. Because Petitioner had no right, title, or legal interest in the floating dock or the ground beneath it, the use of the area could not be considered to be a major exterior attribute of Parcel 404. There was no legal connection between Parcel 404 and the city's right-of-way on the saltwater creek, which Petitioner had used for his fishing business.

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding pursuant to Section 120.57(1), Florida Statutes.

13. Rule 14-66.007, Florida Administrative Code, incorporates by reference the provisions of 49 C.F.R. Part 24, the Uniform Relocation Assistance and Real Property Acquisition Regulations. This rule is set forth in the Florida Department of Transportation Right of Way Manual. The JTA uses that manual in its condemnation process.

14. Title 49 C.F.R., Section 24-1, implements the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended, Title 42 U.S.C., Section 4601, et seq. in accordance with the following objectives:

    1. To ensure that owners of real property to be acquired for Federal and federally- assisted projects are treated fairly and consistently, to encourage and expedite acquisition by agreements with such owners, to minimize litigation and relieve congestion in the courts, and to promote public confidence in Federal and federally- assisted land acquisition programs;

    2. To ensure that persons displaced as a direct result of Federal or federally- assisted projects are treated fairly, consistently, and equitably so that such persons will not suffer disproportionate injuries as a result of projects designed for the benefit of the public as a whole; and (c) To ensure that Agencies implement these regulations in a manner that is efficient and cost effective.

       
       

15. Title 49, C.F.R., Section 24-2, defines "functionally equivalent to the displacement dwelling" as follows:

    Functionally equivalent to the displacement dwelling. The term "functionally equivalent" means that it performs the same function, provides the same utility, and is capable of contributing to a comparable style of living. While a comparable replacement dwelling need not possess every feature of the displacement dwelling, the principal features must be present.

    Generally, functional equivalency is an objective standard, reflecting the range of purposes for which the various physical features of a dwelling may be used.

    However, in determining whether a replacement dwelling is functionally equivalent to the displacement dwelling, the Agency may consider reasonable trade-offs for specific features when the replacement unit is "equal to or better than" the displacement dwelling.

16. Title 49 C.F.R., Section 24.403, provides as follows:

    
    

    Additional rules governing replacement housing payments.

    1. Determining cost of comparable replacement dwelling. The upper limit of a replacement housing payment shall be based on the cost of a comparable replacement dwelling (defined at Section 24.2).

       1. If available, at least three comparable replacement dwellings shall be examined and the payment computed on the basis of the dwelling most nearly representative of, and equal to, or better than, the displacement dwelling. An adjustment shall be made to the asking price of any dwelling, to the extent justified by local market data (see also Section 24.205(a)(2) and Appendix A of this part). An obviously overpriced dwelling may be ignored.

       2. If the site of the comparable replacement dwelling lacks a major exterior attribute of the displacement dwelling site, (e.g., the site is significantly smaller or does not contain a swimming pool), the value of such attribute shall be subtracted from the acquisition cost of the displacement dwelling for purposes of computing the payment.

          
          

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17. Section 9.4.28.1(C), of the Right of Way Manual, provides as follows:

    1. If the comparable replacement dwelling used for the computation is similar to but lacks major exterior attributes of the displacement dwelling, such as a garage, pool, outbuilding, or waterfront or golf course lot, a separate computation may be made, as in Section 9.4.28.1(C)(3).

       
       

       1. A major exterior attribute is any appurtenant structure of substantial value which is exterior to the residential

          dwelling, or an aesthetically valuable view, or a valuable location which contributes to the value of the property and to the quality or standard of living of the displacee.

          
          

       2. The following guidelines are to be used in determining whether an adjustment to payment computations needs to be made:

          1. The attribute must be currently in use by and part of the lifestyle of the displaced residential owner-occupant.

          2. The attribute must be used by the displaced residential owner-occupant solely for personal, non-commercial non-profit purposes.

    
    

18. Parcel 404 offered no legal access to public waters, nor did the comparable replacement dwellings used by the JTA in its computation of the replacement housing amount. Because Petitioner had no easement or other ownership interest in the public land near his parcel, the saltwater access was not a major exterior attribute of Parcel 404. Petitioner's property was a residence. A major exterior attribute cannot be a commercial, for profit, fishing dock.

19. Accordingly, the replacement housing used to calculate the payment was the functional equivalent, or better, than Parcel 404. Therefore, the process utilized to calculate the payment complied with the requirements of Title 49 C.F.R., Part

24 and the Right of Way Manual.

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law, it

is

RECOMMENDED that a final order be issued denying

Petitioner's claim for additional compensation.

DONE AND ENTERED this 22nd day of August, 2002, in Tallahassee, Leon County, Florida.

HARRY L. HOOPER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of August, 2002.

COPIES FURNISHED:

Thomas L. Thomas Route 1, Box 223T Nahunta, Georgia 31553

David Cohen, Esquire

John C. Sawyer, Jr., Esquire Edwards & Cohen, P.A.

200 North Laura Street Jacksonville, Florida 32202

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

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.

Docket for Case No: 01-004836

Orders for Case No: 01-004836