The Issue Whether the Map of Reservation filed by Tampa-Hillsborough Expressway Authority in July, 1988 is unreasonable or arbitrary, and has the effect of denying General Homes of Florida, Inc. a substantial portion of the beneficial use of the property owned by General Homes within the limits of the Map of Reservation.
Findings Of Fact Petitioner was consolidated back to its parent corporation, and now operates as General Homes Corporation which is a large builder of single family homes in the Tampa area. The property affected by the Map of Reservation filed by Respondent was acquired by Petitioner in 1985 and comprises some 24 acres which have been platted into 96 lots known as Eastbrook Subdivision. Eastbrook Subdivision is the third housing development commenced by Petitioner in unincorporated northwest Hillsborough County. The first such subdivision started in 1980 was called Carrollwood Springs. That project was successful and when that development was nearly completed additional property in the vicinity was purchased and the Eaglebrook Subdivision was started. That project was of a similar size to the Carrollwood Springs Subdivision and, it too, was successfully developed and sold. The success of these developments led Petitioner to the purchase, in August of 1985, of the 24 acres to be developed as the Eastbrook Subdivision which is similar in size to the two former developments. At the time this purchase was made there were two proposed alignments of the northwest expressway, the Lake Le Clare Alignment and the Railroad Alignment. The Lake Le Clare Alignment, if adopted, would cross the Eastbrook property but the Railroad Alignment would not. Petitioner had closely monitored the selection process throughout 1985 and was under the impression that the Railroad Alignment would be selected for the Expressway. In 1986, the Expressway Authority selected the Lake Le Clare Alignment. However, the Map of Reservation was not filed until July, 1988. Petitioner proceeded apace with the development of the Eastbrook Subdivision by opening a sales center and five fully furnished model homes with the intention of selling single family homes in the subdivision. Weekly newspaper ads were run, billboard locations were rented and local realtor parties were hosted to draw more attention, and buyers, to the subdivision. In fiscal year 1986, General Homes spent some $300,000 in marketing efforts and sold some 56 homes in Eaglebrook closing out that subdivision. Eastbrook was opened and 16 lots were sold there. In 1987 General Homes spent over $400,000 in sales and marketing but sold and closed only 27 homes in Eastbrook. In fiscal year 1988 General Homes sold and closed 21 homes but incurred a loss of approximately $250,000. The expressway alignment was well known at this time and the public was aware the alignment would affect portions of the Eastbrook Subdivision. The Map of Reservation runs through the southern part of the Eastbrook Subdivision and Petitioner devoted most of its attention to developing the northern portion of the subdivision. However, the impending expressway and its impact on the Eastbrook Subdivision had a dampening effect on sales in this subdivision and in 1987 General Homes lost $231,000 in the Eastbrook Subdivision. In 1988, General Homes suspended all construction activities, discontinued speculative building and attempted to sell the unsold lots in the subdivision. In early 1988, General Homes sold ten lots in Eastbrock to Atlantic Homes who built homes on those lots. An option by Atlantic Homes to purchase additional lots was not exercised. Since the cessation of building activities, General Homes has held the land not sold as unproductive assets in which development costs have accrued, taxes and interest payments continue, but the lots cannot be sold for the erection of a single family home.
Recommendation It is RECOMMENDED that the Petition of General Homes of Florida, Inc. for a determination that the Map of Reservation filed by the Tampa-Hillsborough Expressway Authority is unreasonable or arbitrary and that it denies Petitioner a substantial portion of the beneficial use of its property be DENIED. DONE AND ENTERED this 21st day of June, 1989, 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 21st day of June, 1989. COPIES FURNISHED: Peter J. Winders, Esquire One Harbor Place Post Office Box 3239 Tampa, Florida 33601 William C. McLean, Jr., Esquire Post Office Box 21 Tampa, Florida 33601 =================================================================
Findings Of Fact Based upon the parties' stipulations of fact, the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: For the past 31 years, Petitioner has owned and operated a small grocery store (hereinafter referred to as the "store" or "Payfair") on the bay side of Plantation Key. The store is open for business from 8:00 a.m. to 9:00 p.m. seven days a week. Payfair is situated on a block that is bounded on the north by Palm Avenue, on the south by Royal Poinciana Boulevard, on the east by U.S. 1 (or State Road 5, as it is also known), and on the west by Gardenia Street. On this same block, to the south of the store, are a restaurant and the office of an insurance agency. All three businesses face U.S. 1. A paved driveway running parallel to U.S. 1 passes in front of all three establishments. The property on which Payfair is located consists of ten platted lots, six of which abut U.S. 1 (for a total distance of approximately 300 feet). U.S. 1 is a north-south roadway that is part of the State Highway System. In this area of the Upper Keys, it serves not only as a through highway linking the Upper Keys with the Middle and Lower Keys to the south and with the rest of the State to the north, but it also must carry local traffic because of the absence of any other major through streets in the area. The remaining four lots of Petitioner's property abut Gardenia Street. On the other (western) side of Gardenia Street are residences. There are no street lights on Gardenia Street. Gardenia Street dead ends several blocks to the south of Petitioner's property at Wood Avenue, where an elementary school is located. Plantation Key High School is also nearby. School children living in the residential area behind Payfair walk or ride their bikes on Gardenia Street past the store on their way to and from school. There are signs on the street that warn motorists that there are "children at play." It is desirable to minimize the amount of traffic, particularly commercial traffic, on streets in residential areas where there are school-aged children. Motorists can enter the Payfair parking lot from either U.S. 1 or Gardenia Street. Until recently, both southbound and northbound motorists on U.S. 1 could turn directly from U.S. 1 onto the Payfair property anywhere along the 300 feet the property fronted the roadway. Likewise, upon leaving the property, from anywhere along the frontage of the property, they could turn right and head south on U.S. 1 or turn left and go north on U.S. 1. Such unrestricted, direct access to and from U.S. 1 is no longer available to Petitioner and its customers as a result of work that has been done as part of Department Project No. 90060-3557 (hereinafter referred to as the "project"). The project, which is nearly finished, has converted a portion of U.S. 1 from a two-lane roadway without curbs, gutters or a restricted median to a four-lane roadway with these features which, at its southern terminus, makes the transition to a two-lane roadway. That portion of U.S. 1 on which work either has been or will be done in furtherance of the project extends from Station 379, on Key Largo, south to Station 298, on Plantation Key. 1/ (The project plans call for the restrictive median to run only as far south as Station 308, which is immediately north of Royal Poinciana Boulevard.) Station 298, the southern terminus of the project, is north of Wood Avenue. The issue of where the southern terminus of the project should be located was raised at a public meeting held by the Department at Plantation Key High School on March 14, 1991. Stan Cann, the Department's District 6 Director of Operations, following the meeting, wrote a letter to the Monroe County Superintendent of Schools in which he provided the following sound and reasonable explanation as to why the Department, in designing the project, had selected Station 298, rather than some point to the south of Wood Avenue, as the southern terminus of the project: A major concern of most of the meeting participants was where the final location of the southern transition from four lanes to two would be. Currently our plans call for that to occur prior to the signalized intersection at Woods Avenue. It was the overall opinion, however, that the four laning should be continued through the intersection and transition somewhere farther south. After considerable review, the Department feels strongly that the current design for the transition is the best alternative for pedestrian safety. We understand the tendency of some drivers to attempt passing as many vehicles as possible before entering a two lane section. This tendency makes it preferable for all opportunities for passing to be complete before coming to the pedestrian crossing. The current design accomplishes this. Extending the four-lane section farther south would result in these drivers continuing their passing movements through the intersection thereby increasing the likelihood of vehicles running a red light which, of course, is when pedestrians are told to cross. In addition, with the increased length of the crossing to traverse the four lanes, pedestrians would be in the roadway itself twice as long. We believe that placing the transition to the south where there is no signal indicating to drivers that they may have to stop ahead, will tend to increase vehicle speeds in order to make passing movements, thus endangering the elementary school students. With due consideration of the parents' concerns and recommendation, the Department must pursue what it firmly believes provides the most pedestrian safety. Completing all passing opportunities prior to the approach to the intersection, as currently designed, is the safest alternative. The focus of the instant case is on that portion of the project between Station 308 (at or near the intersection of U.S. 1 and Royal Poinciana Boulevard) and Station 315 (at or near the intersection of U.S. 1 and Palm Avenue). This segment of U.S. 1 (hereinafter referred to as the "subject roadway segment") has a design speed of 45 miles an hour. As a result of the project, it now has four lanes instead of two. Its two southbound lanes are separated from its two northbound lanes by a raised concrete, restrictive median, which is six feet in width at its southern end just north of Royal Poinciana Boulevard. 2/ The project also added curbs along the right side of the outer lanes which separate the subject roadway segment from the abutting property. There are, however, on the western side of the subject roadway segment, four driveways (curb cuts) that provide access to and from the southbound lanes. 3/ Two of these driveways lead to the Payfair parking lot. Another driveway is located between Payfair and the restaurant next door. The remaining driveway services the insurance agency's parking lot to the south of the restaurant. 4/ Accordingly, while the installation of the raised concrete median and curbing has restricted access to and from U.S. 1 in this area, it has not eliminated such access entirely. Southbound motorists on U.S. 1 still have direct access to the Payfair parking lot from U.S. 1; however, they must use one of the driveways that have been installed as part of the project. Similarly, motorists departing the Payfair parking lot can still turn right onto to U.S. 1 and go south; however, they can do so only from one of the aforementioned driveways. Because of the restrictive median that divides the subject roadway segment, northbound motorists on U.S. 1 can no longer turn left and directly access the Payfair parking lot from U.S. 1, nor can motorists leaving the Payfair lot any longer turn left onto U.S. 1 and head north. Reasonable, although somewhat more inconvenient, alternatives remain for these motorists, however. The Department has constructed left turn lanes on U.S. 1 so that northbound traffic can turn left (west) onto either Royal Poinciana Boulevard 5/ or Palm Avenue. Since both Royal Poinciana Boulevard and Palm Avenue connect U.S. 1 with Gardenia Street, vehicles travelling north on U.S. 1 can enter the Payfair parking lot through the rear entrance on Gardenia Street by turning left onto either Royal Poinciana Boulevard or Palm Avenue, travelling one block west, and then turning onto Gardenia Street. Alternatively, some northbound vehicles on U.S. 1 will be able to make a U-turn at Palm Avenue and then travel southbound on U.S. 1 to one of the store's front driveways. 6/ Motorists leaving Payfair and desiring to travel north on U.S. 1 can exit the parking lot via the store's rear driveway, get to U.S. 1 by taking Gardenia Street to either Royal Poinciana Boulevard or Palm Avenue, 7/ and then turning left onto U.S. 1. 8/ They can also exit the parking lot via the front driveways, turn right onto U.S. 1, travel southbound to Fontaine Drive, turn eastbound onto Fontaine Drive, 9/ travel a very short distance on Fontaine Drive before turning northbound onto S-905, travel northbound on S-905 to Sunshine Boulevard, make a left onto Sunshine Boulevard, and then, at the intersection of Sunshine Boulevard and U.S. 1, turn northbound onto U.S. 1. Another option they have available is to drive southbound on the paved driveway that runs parallel to U.S. 1 in front of the businesses on the block, exit via the driveway that connects the insurance agency's parking lot with Royal Poinciana Boulevard, make a left onto Royal Poinciana Boulevard, and then turn northbound onto U.S. 1. From a traffic engineering and safety perspective, it was prudent to install a restrictive median on the subject roadway segment, notwithstanding that its existence may result in some inconvenience to the travelling public. The subject roadway segment is south of where southbound motorists are first warned that the two southbound lanes of U.S. 1 will merge into one southbound lane (hereinafter referred to as the "warning point"). Therefore, although the subject roadway segment is before the actual merger and it has two southbound lanes like that portion of the roadway to its north, 10/ it is in a transition area where motorists can be expected to begin jockeying for position in anticipation of the elimination of one of the two lanes of traffic. It is more appropriate to have a restrictive median than a painted or non-restrictive median on a segment of a through highway which has a design speed of 45 miles per hour and serves as a transition area as does the subject roadway segment. A restrictive median on such a roadway segment helps to channelize traffic that will soon have to merge. More importantly, it minimizes the conflicts and dangers that motorists in the transition area must face as they jockey for position in anticipation of the merger. The fewer the openings a restrictive median has the more effective it will be in accomplishing these objectives. Prior to the installation of the restrictive median on the subject roadway segment, Petitioner requested that the Department provide an opening in the median across from Payfair. The Department's District 6 Director of Operations, Stan Cann, addressed this request as follows in his aforementioned letter to the Monroe County Superintendent of Schools: We have investigated the request of a median opening between [Royal] Poinciana Boulevard and Palm Avenue and are unable to grant this for two reasons. First, the median width is inadequate to safely provide for the left turn storage lane. Secondly, the minimum distance between median openings is 660 feet unless they serve publicly dedicated roadways. The distance between Poinciana and Palm is approximately 700 feet or just over the minimum. An intermediate opening would certainly introduce operational problems to US-1. Truck traffic serving the commercial establishments on the bay side of US-1 will continue to use Poinciana or Palm to re-enter US-1 as they do today. We will recommend to Monroe County that they post No Trucks signs on those residential streets behind this area, particularly south of Poinciana. The District 6 Secretary, Charles W. Baldwin, Jr., by letter dated September 11, 1991, formally advised Petitioner of the Department's intention to deny its request for a median opening. In his letter, Baldwin stated the following regarding the matter: The second issue you raised concerns a median cut on US-1 so as to provide access for Northbound traffic to your client's property. The Department must deny this request because of safety factors which include but are not limited to 1) the physical infeasibility of constructing a median opening because of the width of the median and 2) the placement of a median opening would violate the Department's minimum design criteria. The Department proceeded to install a restrictive median, in accordance with the project plans, without the "intermediate opening" sought by Petitioner, or any other "intermediate opening," between the openings at Royal Poinciana Boulevard and at Palm Avenue. The work was completed in December, 1992. The distance from the centerline of the median opening at Royal Poinciana Boulevard to the centerline of the median opening at Palm Avenue (approximately 700 or 800 feet) is such that it is not possible to have an "intermediate opening" with a centerline that is 660 or more feet from the centerlines of both the Royal Poinciana Boulevard and Palm Avenue openings. Furthermore, as Cann also noted in his letter, any such "intermediate opening would certainly introduce operational problems to US-1." While the Department's decision to install a restrictive median without any "intermediate openings" may have certain undesirable consequences, such as increasing the vehicular traffic on Gardenia Street, on balance, having such a restrictive median is safer than having one with an "intermediate opening" or having a non-restrictive median like the one proposed by Petitioner's expert witness, Ralph Aronberg. The Department has provided median openings on other portions of U.S. 1, north of the subject roadway segment, which service intersecting public roadways, notwithstanding that the centerlines of these openings are less than 660 feet from the centerlines of other openings. Other median openings provided by the Department on U.S. 1 include one that services an office building, the Turek Building, which is a block and a half north of Payfair, and another that services a shopping center in Tavernier.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order denying Petitioner's request that the Department either provide Petitioner an opening in the restrictive median on the subject roadway segment across from Payfair or, alternatively, replace the restrictive median with a non-restrictive median which would provide Petitioner with direct access to and from the northbound lanes of U.S. 1. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 4th day of May, 1993. STUART M. LERNER 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 4th day of May, 1993.
Findings Of Fact Petitioners own certain property located at Section 1, Township 28 South, Range 17 East, in Hillsborough County, Florida, consisting of approximately 2.06 acres. Its specific location is in the Carrollwood area of northwest Hillsborough County, fronting on Ehrlich Road. Petitioners' property is located within the right of way of the Northwest Hillsborough Expressway as shown on the map of reservation filed by Respondent on July 8, 1988. Respondent is an expressway authority created under Chapter 348. Florida Statutes, with eminent domain authority pursuant to Chapter 74, Florida Statutes. The subject property was purchased by the Petitioners on December 19, 1977 for a total purchase price of $13,700, and was refinanced in 1983 at 12% interest on a 12 year mortgage in the amount of $40,000. The monthly payment on this mortgage is $525, and taxes in 1987 were $383.64, but are proposed to increase to $697 for 1988. The property in question has been zoned "Agricultural" at all times material hereto, and is undeveloped. Petitioners originally purchased this property to build their home on, but in fact they purchased a home in Tampa, Florida, and have held this property for investment. In 1983 and 1984, they listed this property for sale, and received a contract to purchase the property for $235,000, contingent upon its rezoning for multifamily use. When the proposed location for the Expressway began to be a matter of public knowledge in 1985, however, the buyers under this contract to purchase backed out, and the property has never been rezoned. This property has not been listed for sale since 1985 due to the Petitioners' feeling that they would not be able to sell it because of the possibility of the Expressway being located in the area. Petitioners attended a public hearing held by Respondent on May 12, 1988, at which time the specific location and right of way for the Expressway was available for review and was discussed. On July 12, 1988, four days after the map of reservation was filed by the Respondent, Petitioners obtained a construction permit from Hillsborough County to build a residence on the subject property. This permit is contingent upon the payment of certain environmental fees, which have not yet been paid by Petitioners. They obtained the approval for their construction loan in the amount of $78,000 in October, 1988 in order to proceed with plans to build a residence on this property, but no construction had begun and the loan had not been finalized at the time of hearing. Nevertheless, these actions evidence the present intention and desire of the Petitioners to develop the subject property as their new residence. Petitioner Danny M. Melvin testified that he and his wife have considered moving from Florida, and locating employment elsewhere, although they have no specific offers or opportunities. They feel, however, that it is not financially feasible for them to move and relocate as long as they are still making mortgage payments on this property. Therefore, they desire that the Respondent purchase their property as soon as possible.
Recommendation Based upon the foregoing, it is recommended that the Respondent enter a Final Order granting Petitioners the relief sought, and within 180 days either acquire the Petitioners' property, amend the map, withdraw the map, or file appropriate proceedings. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 10th of January, 1989. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1050 Filed with the Clerk of the Division of Administrative Hearings this 10th day of January, 1989. COPIES FURNISHED: Danny M. Melvin 2905 West North Street Tampa, Florida 33614 William C. McLean, Esquire 707 Florida Avenue Tampa, Florida 33602 Ray Speer, Executive Director Tampa-Hillsborough County Expressway Authority 412 East Madison, Suite 802 Tampa, Florida 33602
Conclusions Having considered the record in this cause, it is concluded pursuant to Section 190.005(1)(e)1 through 6, Florida Statutes: That all statements contained within the Petition, as amended, are found to be true and correct. That the creation of the district is not inconsistent with any applicable element or portion of the State Comprehensive Plan or the effective local comprehensive plan. That the area of land within the district is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developable as one functional interrelated community. That the district is the best alternative available for delivering community development services and facilities to the area that will be served by the district. That the community development services and facilities of the district will be compatible with capacity and uses of existing local and regional community services and facilities. That the area that will be served by the district is amenable to the special-district government. DONE and ENTERED this 25th day of October, 1990, in Tallahassee, Florida. CHARLES C. ADAMS, 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 25th day of October, 1990. COPIES FURNISHED: Ken Van Assenderp, Esquire George L. Varnadoe, Esquire Post Office Box 1833 Tallahassee, FL 32302-1833 Larry Haag, Esquire Citrus County Courthouse 110 North Apopka Avenue Inverness, FL 32650 Steven Pfeiffer, Esquire Alfred Bragg, Esquire Department of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100 Patricia A. Woodworth, Secretary Florida Land and Water Adjudicatory Commission The Capitol, PL-05 Tallahassee, FL 32399-0001 William Buzzett, Esquire Florida Land and Water Adjudicatory Commission The Capitol, PL-05 Tallahassee, FL 32399-0001 David Maloney, Esquire Florida Land and Water Adjudicatory Commission The Capitol, PL-05 Tallahassee, FL 32399-0001 Jeannette Haag, Esquire Withlacooche Regional Water Supply Authority 452 Pleasant Grove Road Inverness, FL 32652
Findings Of Fact On April 16, 1986, in conjunction with the preparation of plans for widening Southside Boulevard (State Road 115) in Jacksonville, Florida, the Department recorded a Map of Reservation pursuant to Section 337.241(1), Florida Statutes, which encompassed a portion of the Petitioner's property. It was stipulated by the parties that the Department complied with the necessary notice, filing, and approval requirements of Section 337.241(1), Florida Statutes. The property in question is located in Jacksonville, adjacent to the east side of Southside Boulevard at the intersection of Hogan Road. It is zoned commercial, but there is currently no development on the east side of Southside Boulevard in the immediate vicinity of Hogan Road. The west side of Southside Boulevard is developed commercially for its entire length. This property consists of a tract of land approximately 892 feet long by 15 feet deep which lies adjacent to a strip of land approximately 100 feet deep which is immediately adjacent to Southside Boulevard. The Department determined that there existed a need to widen Southside Boulevard from a two lane highway to a four lane, limited access facility accompanied by two one-way, parallel service roads. In designing the widening of this highway, the Department determined that the minimum right-of-way corridor width for the facility should be 250 feet. This minimum width was established by using official rules and criteria established by the Department, as well as the Rules of the American Association of State Highway Officials and those of the Florida Department of Highway Safety and Motor Vehicles. Presently, the Department has a 200 foot wide right-of-way corridor. Because of the requirement for at least 250 feet of width, the Department needed to take steps to assure that the extra 50 feet would be available by use of a Map of Reservation. The Department determined that land should be reserved on the east side of the right-of-way corridor for the needed 50 feet because the east side of Southside Boulevard in the area in question is undeveloped, while the west side is substantially developed. This was an economic decision based upon an alignment of the right-of-way corridor that would have the least economic impact on the acquisition of the additional right-of-way. The Department did not place all of the Petitioner's property under the Map of Reservation. Only the 50 feet required for the widening project is affected by the regulation. The owner of the subject property is an individual, E. W. Mayhew, and a corporation, Beta Development Company, Inc. The property was purchased in 1982 for development as office/warehouse space. The Petitioner E. W. Mayhew knew that the property was affected by a Limited Access Line across the property, which was established by the Department in the 1960's, well before the Petitioner's purchase of this property. Despite the presence of this Limited Access Line, the Petitioner did not realize until 1984 that the Line informed potential buyers that direct access to Southside Boulevard from the subject property would be eliminated eventually. Although it spent more than $43,000 to develop plans to promote its property, the Petitioner had not applied to the City of Jacksonville for any of the permits that are required in order to build its proposed office/warehouse project by the time the Map of Reservation was filed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter its Final Order dismissing the Petition in this case. THIS Recommended Order entered on this 24th day of November, 1986, in Tallahassee, Leon County, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of November, 1986. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 86-1587 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner 1.-4. Accepted. 5.-16. Rejected, as irrelevant because the elements of reasonableness and arbitrariness were not proved. 17. Rejected, as not a proposed finding of fact. Rulings on Proposed Findings of Fact Submitted by the Respondent 1.-9. Accepted. COPIES FURNISHED: Thomas Drawdy, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 A. J. Spalla General Counsel Department of Transportation Haydon Burns Building Tallahassee, Florida 32301-8064 Theresa M. Rooney, Esquire 1550 Florida Bank Tower Jacksonville, Florida 32202 Paul J. Martin, Esquire Haydon Burns Building, M.S. 58 Tallahassee, Florida 32301-8064
Findings Of Fact Petitioner is the general partner of Marstof, Ltd., which owns certain property located at Section 24, Township 28, Range 17, Hillsborough County, Florida, and consisting of approximately thirty acres. Its specific location is on the west side of Twelve Oaks Boulevard, and 400 feet north of Heatherfield Drive. Respondent is an expressway authority created under Chapter 348, Florida Statutes, with eminent domain authority pursuant to Chapter 74, Florida Statutes. The property in question is surrounded on the north by a railroad, vacant land, and a strip of commercial property. To the east and west is vacant land, while to the south are single family residences, with some environmentally sensitive areas. There are some trees on the site, but there is no significant vegetation. Petitioner signed a contract to purchase the subject property for $953,000 on September 27, 1985. The property was zoned "Agricultural" at that time, and since Petitioner intended to develop this property for residential uses, he immediately began preliminary lot layout for marketing, and preliminary layout of a proposed waste water treatment facility. These preliminary layouts were submitted to the Hillsborough County Department of Development Coordination in December, 1985. In early 1986, surveys were ordered, a well as soils and environmental studies, and final subdivision design began. By mid-1986, side and environmental plans, as well as plans for a temporary waste water treatment plant were submitted to state and local permitting agencies. In the fall of 1986, revised plans were prepared and submitted, as required. Petitioner began discussions in December, 1986, with General Homes Corporation for their purchase of all residential lots on the subject property. On December 22, 1986, Petitioner received a letter of intent from General Homes, and on March 4, 1987, General Homes executed a contract to purchase all lots in Petitioner's proposed subdivision for a total of approximately $2.5 million. On March 9, 1987, Petitioner filed an application for rezoning of the subject property from "Agricultural" to "Planned Development, Housing" This rezoning was approved on June 23, 1987. However, General Homes had canceled their contract with Petitioner on or about March 25, 1987. Other developers did express an interest in purchasing Petitioner's lots, but no subsequent purchase contract was executed. As part of the rezoning approval, Petitioner conveyed a portion of the subject property, without monetary consideration, to the County for an extension of Twelve Oaks Boulevard, as well as an additional portion used for environmental mitigation. Following approval of his rezoning application, Petitioner filed his revised site plan and request to use an interim waste water treatment plant, to which there was no objection. By October 10, 1987, Petitioner had obtained all necessary approvals and permits, as well as the rezoning of the subject property, to begin pulling permits for development of this residential subdivision consisting of 128 approved lots with a wholesale value of approximately $2.68 million, or $21,000 per lot. He did not begin development, however, because of concerns about the possible impact of the Northwest Expressway on his development. Although no map reservation had been filed, it appeared to Petitioner that it was likely that the proposed route of the Expressway would be through his property. He did not proceed because he was concerned about the marketability of homes next to, or near, the eventual site of the Expressway, the possibility of default on any development loan he would have to obtain if the Expressway was located through his property, and he also wanted to avoid inflating the eventual cost of the property if it had to be taken through eminent domain. The map of reservation filed on July 8, 1988 by Respondent shows that the Expressway right of way crosses directly through the subject property in an east-west direction. The right of way varies from approximately 250 to 290 feet in width. To the south of the Expressway right of way is a portion of the subject property owned by Petitioner of approximately 10 acres on which 34 residential lots could be located. To the north of the right of way is an area that the parties agree is not developable because the Expressway will cut off all access to this northern parcel. The developable southern parcel of approximately 10 acres cannot be profitably developed with only 34 lots. Petitioner testified that no more than 34 lots can be developed on this parcel, and this testimony is supported by a revised site prepared by his consulting engineer and land surveyor. There is no evidence to the contrary. It is not economically feasible to develop this southern parcel due to the original land cost, and the deflating impact which the location of the Expressway next to this parcel will have. Petitioner has invested a total of approximately $1.15 million in the acquisition of the subject property, including its rezoning, site plans, and obtaining all necessary permits and approvals to commence development. He estimates that he could reasonably receive $2.75 million through the bulk sell- out of 128 finished lots at current market conditions, if it were not for the proposed location of the Expressway through his property. Due to the filing of the map of reservation by Respondent for the Northwest Expressway, Petitioner cannot proceed with any portion of the development of residential lots on the subject property. The only evidence in the record is that Petitioner has been deprived of a substantial portion of the beneficial use of the subject property.
Recommendation Based upon the foregoing, it is recommended that the Respondent enter a Final Order granting Petitioner the relief sought, and within 180 days either acquire Petitioner's property, amend the map, withdraw the map, or file appropriate proceedings. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 21st day of December, 1988. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of December, 1988. COPIES FURNISHED: A. Broaddus Livingston, Esquire One Harbour Place Post Office Box 3239 Tampa, Florida 33601 William C. McLean, Esquire 707 Florida Avenue Tampa, Florida 33602 Ray Speer, Executive Director Tampa-Hillsborough County Expressway Authority 412 East Madison, Suite 802 Tampa, Florida 33602
Findings Of Fact Talbott and Drake, Inc. is and was at all times alleged herein a registered real estate broker corporation. William F. Talbott is now and was at all times alleged herein a registered real estate broker and active firm member of Talbott and Drake, Inc. Paul P. Drake is now and was at all times alleged herein a registered real estate broker and active firm member of Talbott and Drake, Inc. Helen C. Drake is now and was at all times alleged herein a registered real estate broker and active firm member of Talbott and Drake, Inc. On or about January 18, 1977, William F. Talbott, on behalf of Talbott and Drake, Inc., negotiated a contract for sale and purchase between the High Ridge Water Company -- John H. McGeary, Jr., sellers, and William Montaltos and Genevieve L. Montaltos, his wife, buyers, for the purchase of lot in a new housing area known as River Forest in the Boca Raton area, Palm Beach County. A copy of said contract, Petitioner's Exhibit 1, is received into the record pursuant to the Stipulation of the parties. Said contract, Petitioner's Exhibit 1, was subject to the declarations of restrictions filed by High Ridge Water Company as seller on June 28, 1976, wherein, in Paragraph 7, the developer retained the right to approve or disapprove the plans and specifications for the construction of any structure, building, fence, wall or sign in the River Forest area. A copy of said declarations of restrictions is received into the record as Petitioner's Exhibit 2, pursuant to the Stipulation of the parties. As a part of the restrictions and provisions of the contract, the purchasers, Mr. and Mrs. Montaltos, were required to use a builder selected from a list of designated builders, approved and designated by Talbott and Drake, Inc. and the High Ridge Water Company. Mr. and Mrs. Montaltos decided to build on the subject property and contacted numerous builders designated by Talbott and Drake, Inc. to submit the bids for the construction of a home on the property. On or about June 9, 1976, the McGeary partnership, as developer of the River Forest area, entered into a joint venture agreement with Group Six Developers Collaborative, Inc., whereby Group Six Developers Collaborative, Inc. purchased lots in the River Forest area and agreed to pay Talbott and Drake, Inc. a five-percent commission on all homes constructed on said lots by Group Six Developers Collaborative, Inc. in the River Forest area. A copy of said joint venture agreement is received into the record as Petitioner's Exhibit 3 pursuant to the Stipulation of the parties. Petitioner's Exhibit 3 recites on the first page of said agreement as follows: WITNESSETH: WHEREAS, by that certain Purchase Agreement intended to be executed this date, BUILDER (Group Six Collaborative, Inc.) is agreeing to purchase certain real property as set forth herein, a copy of which Purchase Agreement is attached hereto as Exhibit 1; . . . (emphasis added) WHEREAS, the parties hereto are desirous of forming a joint venture for the purpose of finan- cing, constructing and selling single family residences upon the property described in Exhibit 1; NOW THEREFORE, in consideration of the pro- mises and of the mutual covenants of the parties hereto, and for other good and valuable considera- tion, the parties agree as follows: 9. BROKER. The parties agree that TALBOTT AND DRAKE, INC., a Florida real estate brokerage corporation, shall have an exclusive listing agree- ment with BUILDER, as owner and joint venturer, for the sale of residences to be constructed pursuant to this Agreement, a copy of which Agreement is attached hereto as Exhibit 2. As a commission for their services, which shall include but not be limited to, advertising, manning model houses, showing receiving of deposits, qualifying prospects, assisting in obtaining financing for purchasers, they shall receive five percent (5 percent) of the pur- chase price, according to the provisions contained in Exhibit 2. The joint venture agreement, Petitioner's Exhibit 3, is clearly limited to houses to be constructed on the lots purchased from the McGeary partnership. The agreement does not constitute an agreement to pay Talbott and Drake, Inc. a fee of five percent of the construction cost of any custom home built by one of the designated builders on a lot purchased by an individual. When Mr. and Mrs. Montaltos received the bid statement from Group Six Developers Collaborative, Inc. there was noted thereon: "Add Real Estate Commission as per Talbott and Drake contract." A copy of said bid statement is received into the record as Petitioner's Exhibit 4 pursuant to the Stipulation of the parties. Although Mr. and Mrs. Montaltos were informed that Talbott and Drake, Inc. was to be paid a ten-percent commission by the seller on the sale of the property to Mr. and Mrs. Montaltos, they were at no time informed directly by the Respondents that the builders on the "approved list" were required to pay a five-percent commission to Talbott and Drake, Inc., nor that the said five- percent commission would be passed on to Mr. and Mrs. Montaltos when they contracted with an "approved" builder to construct a home on the subject property. On or about February 4, 1977, William F. Talbott, on behalf of Talbott and Drake, Inc., negotiated the contract for sale and purchase between High Ridge Water Company, as seller, and Donald James Kostuch and Mary Louise Kostuch, his wife, buyers, for purchase of a lot in the River Forest area of Palm Beach County. A copy of said contract is received into the record as Petitioner's Exhibit 5 pursuant to the Stipulation of the parties. Mr. and Mrs. Kostuch were required by the contract to select a builder from an approved list of designated builders approved and supplied by Talbott and Drake, Inc. and seller, High Ridge Water Company. Mr. and Mrs. Kostuch selected Snow Realty and Construction, Inc. from the list supplied by Talbott and Drake, Inc. Snow Realty and Construction, Inc. had an agreement with the McGeary partnership and Talbott and Drake, Inc. similar to that outlined in the joint venture agreement between the McGeary partnership in Group Six Developers Collaborative, Inc., Petitioner's Exhibit 3, whereby Snow Realty and Construction, Inc. agreed to pay Talbott and Drake, Inc. a five-percent commission on any residence that Snow Realty and Construction, Inc. built in the River Forest area. The bid supplied by Snow Realty and Construction, Inc. on March 7, 1977, to Talbott and Drake, Inc. contained a listing of real estate commission to Talbott and Drake, Inc. in the amount of $3,652. A copy of said bid statement is received into the record as Petitioner's Exhibit 6 pursuant to the Stipulation of the parties. The Kostuchs were advised of a five-percent fee to be paid by the builder by a salesman working for another broker who first introduced the Kostuchs to the real property in River Forest. The salesman advised the Kostuchs prior to their entry into the contract for the purchase of the lot in River Forest in which they agreed to limit their choice of builder to one approved by the McGeary partnership and Talbott and Drake, Inc. This disclosure would be sufficient to comply with the provisions of Rule 21V-10.13, Florida Administrative Code, because the fee was revealed by a salesperson involved in the transaction prior to the execution of the contract under which the favor, if any, was granted. Talbott and Drake, Inc., in addition to performing services as listing agent for the sale of homes in River Forest, also functioned as the prime developer in this project pursuant to an agreement with High Ridge Water Company and the McGeary partnership. Regarding the Montaltos' transaction, the limitation of the owners to the use of one of the approved builders constitutes the granting or placement of favor, because it narrows the competition to one of five builders out of all the builders available in the Fort Lauderdale area. The affidavits introduced indicate that, notwithstanding the absence of a written agreement, the designated builders had agreed to pay to Talbott and Drake, Inc. a fee of five percent of the cost of construction of any custom home as compensation for the efforts of Talbott and Drake, Inc. in developing the property. While compensation for these services is reasonable, it still constitutes a fee to be paid Talbott and Drake, Inc. from one of the five designated builders who would benefit from the contract. The potential adverse effect of this arrangement was to transfer a cost generally allocated to the cost of the lot to the cost of the house. Therefore, people shopping for a lot could be misled in the comparison of similar lots in different subdivisions in the absence of being advised of the fee to be paid by the builders to Talbott and Drake, Inc. However, the evidence shows no attempt to keep this fee a secret and thereby mislead buyers. The existence of such a fee is referred to in sales literature prepared by Talbott and Drake, Inc. The Kostuchs were advised of the fee by a participating salesman for another real estate company. The builders set out the fee as a separate cost item as opposed to absorbing it in general costs within their bids. While the Respondents could not produce evidence that the Montaltos' had been advised of the existence of the fee, and the Montaltos' testified that they had not been advised, this appears to be an isolated incident as opposed to a course of conduct. Notwithstanding proof of the above, no evidence is presented that the Montaltos' contracted with a designated builder to build their house, and that a designated builder paid a fee to Talbott and Drake, Inc. To the contrary, the testimony of William Talbott was that the Montaltos' had breached the terms of their contract regarding the use of a designated builder.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that the Florida Real Estate Commission issue a letter of reprimand to Talbott and Drake, Inc. which, in fairness to the Respondents, should set out the specifics of the violation and to further apprise other registrants of the potential dangers of such fee arrangement. DONE and ORDERED this 4th day of June, 1979, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Frederick H. Wilsen, Esquire Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Charles M. Holcomb, Esquire 653 Brevard Avenue Post Office Box 1657 Cocoa, Florida 32922
Conclusions An Administrative Law Judge of the Division of Administrative Hearings has entered an Order Relinquishing Jurisdiction And Closing File in this proceeding. A copy of the Order is attached to this Final Order as Exhibit A.
Other Judicial Opinions OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030(b)(1)(C) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT'S AGENCY CLERK, 2555 SHUMARD OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100, WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH Final Order No. DCA11-GM-118 THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. CERTIFICATE OF FILING AND SERVICE I HEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Community Affairs, and that true and correct ; copies have been furnished to the persons listed below in the manner described, on this iy of June 2011. Paula Ford, Agency Clerk Pu DEPARTMENT OF COMMUNITY AFFAIRS 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 By U.S. Mail and Electronic Mail: Adam Gormly, Esq. Assistant County Attorney HILLSBOROUGH COUNTY 601 East Kennedy Boulevard Floor 27 Tampa, FL 33602-4932 gormlya@hillsboroughcounty.org By Hand Delivery: By Filing with DOAH: David L. Jordan, Deputy General Counsel The Honorable J. Lawrence Johnston Department of Community Affairs Division of Administrative Hearings 2555 Shumard Oak Boulevard The DeSoto Building Tallahassee, Florida 32399 1230 Apalachee Parkway Tallahassee, FL 32399-1550
