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
Findings Of Fact The Tampa-Hillsborough County Expressway Authority was designated as agent for the Florida Department of Transportation to acquire the necessary rights-of-way for the proposed Northwest Hillsborough County Expressway Project. In turn the Expressway Authority contracted with O.R. Colan Associates, Inc. to serve as its agent in acquiring the property needed for this project. Several public meetings were held by the Expressway Authority before the final route was accepted and a map or maps of reservations was or were filed. The ultimate route of the Northwest Expressway was determined and property owners on the selected route were sent a letter similar to Exhibit 2, which was sent to Petitioner dated January 17, 1991 advising him that the Expressway Authority would negotiate with the owners of all parcels of property to be acquired to arrive at a fair price to be paid for their property. Exhibit 2 further provided that: [I]n order to facilitate construction of the project, the Authority will begin the appraisal and relocation survey of your property, after which you will be offered the fair market value of your property based upon an independent appraisal. * * * In addition to receiving payment for the fair market value of your property, you may be entitled to certain relocation assistant payments and other costs payable only during the settlement process. Several years earlier Petitioner had purchased property on which he intended to construct a new residence in which to live. Based upon the fact that Petitioner received a certificate of occupancy dated January 24, 1991 for this new residence, it is obvious that construction of this residence commenced before Petitioner received Exhibit 2. Petitioner visited the office of Colan in April 1991 and discussed some of the procedures to be followed in his property being acquired. No offer to purchase at an offering price was made to Petitioner at this time or by any of Colan's employees until January 7, 1992. On January 7, 1992 a personal contact was made with Petitioner by David A. Patrick, an agent for Colan, in which Petitioner was offered $108,725 for his property (Exhibit 7). A subsequent offer to purchase the property was made by David A. Patrick for $201,125 (Exhibit 9). Petitioner occupied the new residence shortly after receiving the certificate of occupancy and entered into a lease for the former residence on March 18, 1991. During Petitioner's visit to Colan's office in April 1991 he requested and was given a copy of a Relocation Brochure (Exhibit 1) prepared by Colan who had distributed copies to approximately 10 property owners of affected property before being advised by DOT not to distribute them to any other property owners. At the bottom of page 1 and top of page 2 of Exhibit 1 the following appears: Are there "Basic" payment eligibility requirements that are applicable to all relocatees? Yes - to be eligible for any relocation payment you must at least meet each of the following basic requirements: 1. You must - with the following noted exception - be in legal occupancy of the property being acquired by the Authority at the initiation of negotiations for that particular property - unless you have personally received a written notice from the Authority advising that it is the intent of the Authority to acquire the property. (Negotiations will be initiated on the date that the Authority representatives present a written offer for the subject property to the property owner or to his designated representative). EXCEPTION: The one and only exception to this specific occupancy requirement is that you can qualify for a moving cost payment - if you were not in occupance at the initiation of the negotiations and if you did not personally receive a written notice of intent to acquire PROVIDED THAT you were in legal occupancy at the time the property was actually acquired (paid for) by the Authority or at the time you received written notice from the Authority. You should never - whether you are a tenant or an owner - vacate or move from any property scheduled for acquisition by the authority prior to receiving a written vacancy notice from the Authority (even though you may have a written notice of the Authority's intent to acquire the property) without first checking with the Authority officials to see if you can do so without losing your eligibility for relocation payments which you would otherwise be entitled to receive. You will thereafter not jeopardize your eligibility if you move any time after your Acquisition payment is delivered to you. The property acquired from Petitioner consists of a duplex in which one unit (occupied by Petitioner) was comprised of 3 bedrooms, one bath, kitchen, etc., and the other unit had one bedroom, one bath, etc., which Petitioner held as rental property. There were also two sheds on the property in which Petitioner stored personal property. Petitioner's testimony that some of his personal property remained on the acquired premises for over a year after he vacated the dwelling was not contested.
Recommendation It is recommended that a final order be entered dismissing Ronald R. Swartz's application for relocation benefits associated with the taking of his property in the right-of-way of the Hillsborough County Northwest Expressway. ENTERED this 11th day of December, 1992, in Tallahassee, 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 11th day of December, 1992. APPENDIX Petitioner's proposed findings are accepted as noted below. Those neither noted below or included in the Hearing Officer's findings were deemed unnecessary to the conclusions reached. 9. Accepted as unrebutted testimony of Petitioner. However, it is noted that Petitioner received the "599 letter" subsequent to its date of January 17, 1991 and his certificate of occupancy for his new residence on January 24, 1991. 20. Accepted as unrebutted testimony of Petitioner, however, this brochure was received by Petitioner long after he had moved from the condemned property so his move could not have been made in reliance on this relocation brochure. 23. Accepted as testimony of Petitioner. However, reliance on Chapter 14- 66, Florida Administrative Code, would show his ineligibility for relocation benefits since he was not in occupancy at the time of initiation of negotiations as defined in the rule. Respondent's proposed findings are accepted. Those proposed findings not included in the Hearing Officer's finding were deemed unnecessary to the conclusions reached. COPIES FURNISHED: Ronald R. Swartz 610 West Waters Avenue Suite J Tampa, Florida 33604 Charles G. Gardner, Esquire Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458 Thornton J. Williams General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32399-0458
Findings Of Fact Respondents are each property owners in a subdivision known as the revised plat of Sunset Cove which was recorded in plat book 2, page 20, of the Public Records of Monroe County, Florida. All of the properties owned by Respondents have front property lines adjacent to a 20-foot wide road which runs parallel to State Road 5, the old Florida East Coast Railroad right-of-way, more commonly known as C. S. 1. This 20-foot wide road was dedicated by the platters of the subdivision using the following language: And that we hereby dedicate to the public for proper uses the roads shown thereon, reserving to ourselves, our heirs, successors or assigns the reversion or reversions thereof whenever discontinued by law. (Joint Exhibit 1) There was no evidence to indicate that the dedicated property was ever used as a road. The evidence did establish that it has not been used as a road for at least sixteen years. In the past, and up to the date of the hearing, adjacent property owners have crossed the dedicated property for ingress and egress purposes, have constructed improvements encroaching upon the dedicated property and Respondents have erected advertising signs on the property. In 1938, the State of Florida acquired, by deed, the right-of-way of the Florida East Coast Railroad In the Section, Township and Range in question. That right-of-way adjacent to the dedicated property is known as State Road 5 and U.S. 1. The railroad right-of-way did not include the 20-foot road which was dedicated as a part of the revised plat of Sunset Cove. The right-of-way map issued by the State of Florida, State Road Department (the predecessor of the Department of Transportation), reflects that the 20-foot dedicated road has been included as part of the right-of-way of State Road 5. The map is dated April, 1969. (See Joint Exhibit 2) At the hearing it was stipulated by counsel that the signs in question are within a strip of land lying within a distance of 50 feet and 70 feet from the center line of State Road 5, U.S. 1, and that the issue in this case is whether such 20-foot strip is part of the right-of-way of State Road 5 and whether the signs are thereby subject to removal.
Conclusions This cause is before the Department of Community Affairs on an Order Closing File, a copy of which is appended hereto as Exhibit A. On November 19, 2008, Respondent Monroe County (County) adopted an amendment to its comprehensive plan by Ordinance No. 029-2008 (Amendment). The Department reviewed the Amendment, determined that it did not meet the criteria for compliance set forth in Section 163.3184(1) (b), Florida Statutes, and caused to be published a Notice of Intent to find the Amendment not ‘in compliance.” The Department then instituted this administrative proceeding against the County pursuant to Section 163.3184(10), Florida Statutes. On May 19, 2010, the County repealed the Amendment by Ordinance No. 016-2010. By virtue of this rescission, the FINAL ORDER No. DCA10-GM-121 instant controversy has been rendered moot, and this proceeding must be dismissed. See Department of Highway Safety & Motor Vehicles v. Heredia, 520 So. 2d 61 (Fla. 3d DCA 1988) (dismissing case on appeal as moot where suspension of driver’s license was rescinded by the Department).
Other Judicial Opinions REVIEW OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030 (b) (1)®) 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 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. 3 of 5 FINAL ORDER No. DCA10-GM-121 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 by U.S. Mail to each of the persons listed below on this day of , 2010. Paula Ford Agency Clerk By U.S. Mail The Honorable Donald R. Alexander Administrative Law Judge Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 Robert B. Shillinger, Jr., Esquire Monroe County Attorney’s Office Post Office Box 1026 Key West, Florida 33041-1026 Derek V. Howard, Esquire Monroe County Attorney’s Office Post Office Box 1026 Key West, Florida 33041-1026 Christine Hurley, AICP Growth Management Director Monroe County 2798 Overseas Highway, Suite 400 Marathon, Florida 33050 4 of 5 By Hand Delivery Richard E. Shine Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, FL 32399-2100 FINAL ORDER No. DCA10-GM-121
Findings Of Fact Background State Road 80 is part of the State Highway System. The road runs in an east-west direction from Interstate I-75 at Fort Myers in Lee County to U.S. Highway 27 in Hendry County. The road improvement project currently under construction on State Road 80 involves the expansion of the road from two lanes to six lanes. A raised median separates the eastbound lanes from the westbound lanes. To provide access from either direction to homes and businesses that are adjacent to the road, turn lanes and median openings have been designed into the project. This is not a "limited access facility" as defined by Section 334.03(11), Florida Statutes. Rather, it is a "controlled access facility" as defined by Section 334.03(6), Florida Statutes. Service roads restore access to properties that were accessed from both directions prior to the improvements. Pursuant to routine agency practices, the median openings were set at the "60% phase" of the project design in June or July of 1986. Petitioner Stevens & Layton, Inc. is a Florida corporation in which Petitioners Robert Wilenius and Harvey W. Stevens are officers and directors. In September 1987, Petitioner Stevens and Layton had drawings of a site plan completed for the development of a commercial building complex. The plans for the buildings involved real property located behind an existing business that fronts State Road 80. The existing business had a driveway that accessed State Road 80. The owner of the entire parcel of land (which included the existing business and the site of the proposed building complex) agreed that the existing driveway could be used as an access drive to the complex. The site plans were reviewed by the Lee County Department of Community Development Review. On October 15, 1987, Lee County rejected the proposed site plan. Right and left turn lanes onto the property had to be provided by the developer, Stevens & Layton, Inc., before the project would be considered. On November 10, 1987, a meeting was held that included the project engineer, John Bosserman, Robert Wilenius of Stevens & Layton, Inc., Patrick Hunt of Lee County Department of Community Development Review, and D. M. Heflin of the Florida Department of Transportation. During the meeting, Mr. Heflin confirmed that the proposed expansion of State Road 80 was of high priority in the area and should be let for bid in June 1988. Based upon this representation, the county decided to waive the requirement that the developer provide turn lanes into the property during Phase I of the project. This construction phase involved the completion of an office building and a mini-storage warehouse. During his revisions of the site plan after October 15, 1987, the professional engineer hired for the commercial building project obtained a copy of the Department's plans for the improvement of State Road 80. Evidence submitted at hearing shows that these plans were reviewed by the engineer on or before November 17, 1987. The plans reviewed show where the raised medians and the median openings were to be located in the future on the state road. It is clear on these road improvement plans that the parcel of land on which the commercial building complex was to be located, was not going to receive direct access to the expanded state road from both directions. A median opening was not planned by the Department in the immediate area of the driveway into the complex. In addition, the closest median opening east of the driveway was not designed to accommodate long industrial vehicles that might approach the commercial building complex from the eastbound lanes. This median opening allows access to the Wilson property which is adjacent to the property in question. In addition, a service road from the former Wilson driveway which is now public right-of-way, restores access to the dominant estate in front of Petitioner's property from the eastbound lanes. The Petitioners knew or should have known prior to their purchase of the real property involved in the commercial building complex that a median opening was not being provided by the Department for direct access into their property, which is behind the dominant estate which fronts the state road, both eastbound and westbound lanes of the improved State Road 80. The Petitioners Robert Wilenius and Sarah Wilenius, with Harvey W. Stevens and Mary Lou Stevens, purchased the real property on which the commercial building complex developed by Petitioner Stevens and Layton, Inc. was to be located on January 8, 1988. This area of land was severed from the dominant estate that continues to include the business and the driveway that abuts State Road 80. In order for the Petitioners to have access to the property from the state road, the owner of the dominant estate granted the new owners of the back portion of the parcel a non-exclusive easement for roadway purposes, through the driveway and across the front of the parcel. The property, including easement, was purchased for less than $100,000.00 according to the documentary tax stamps on the deed. After various revisions were made to the site plan, the development plans were approved for a Final Development Order from Lee County on January 12, 1988, with the following stipulation: Frontage road agreement including sidewalk, to be submitted with phase one prior to C.O. Right turn lanes to be constructed with phase two prior to C.O. Based upon the site plan in evidence, it was anticipated in January 1988 that the future frontage road easement across the dominant parcel would connect with the paved access drive onto the Petitioners' property. Apparently, this frontage road easement would allow traffic from the eastbound lanes of State Road 80 to enter Petitioners' access drive from one of the median openings east of Petitioners' property. In August of 1988, Phase One the commercial building complex was under construction. During this time period, Walter D. Stephens, P.E., the Acting Director of the Lee County Department of Transportation and Engineering, Division of Transportation Planning and Permitting, examined the proposed median crossover locations on State Road 80. Mr. Stephens opined on August 10, 1988, that if the Petitioners' commercial building complex were to have heavy construction vehicle (low-boy trailer truck) activity, these large vehicles would not be able to safely move from the first median opening east of the property onto the proposed frontage road under the following conditions: If a low-boy trailer truck made a left turn movement from the Wilson drive onto the frontage road to move west towards Petitioners' access drive, the back of the truck would still be on State Road 80 if there were other vehicles in the Wilson drive waiting in front of the truck to make the same turn. Patrick Hunt, the Development Review Supervisor for Lee County Department of Community Development, was promptly advised of Mr. Stephens' opinion. A revised print of the site plan for the commercial building complex received the professional seal of the engineer on the project on November 14, 1988. Lee County Department of Development Review approved the revised site plan on November 15, 1988. It is unknown to the Hearing Officer exactly when the certificate of occupancy for Phase One of the development was issued. However, based upon the verified complaint filed by Petitioners in circuit court, the certificate was issued before the complaint was filed because Stevens & Layton was operating its contracting business from this location. If Stevens & Layton proposed to go forward with Phase Two of their development on the property, they were obligated to construct right turn lanes prior to receiving a certificate of occupancy for the second stage of development. The circuit court judge denied the temporary preliminary injunction, but encouraged the Department and the Petitioner to negotiate for a median relocation. The judge will hear the merits of the pending suit after the Petitioners have exhausted administrative remedies for a median opening providing direct access from eastbound and westbound lanes on State Road 80 to their property. The Problem The Petitioners are seeking to have the Department provide them with a median opening in front of the road access easement to their property in order to allow the 70' low-boy tractor trailer used in Stevens & Layton Inc.'s pipeline business to enter from the eastbound lane of State Road 80 without having to make a U-turn from the median opening east of the property. The Petitioners maintain that a serious safety hazard could result to the tractor trailer or other traffic, if the current road design is allowed to remain in the area due to the tractor trailer's use of the median opening just east of Petitioner's drive. Alternative Requests for Median Opening One request for a median opening submitted to the Department by Petitioners requested a median opening that gives them a turn lane into their property from both the eastbound and westbound lanes of traffic from State Road 80. The second alternative suggested by Petitioners is to place the median opening planned for the entry onto the Wilson property between the two existing driveways, still allowing those drives to remain in place. The proposed additional center driveway could carry two-way traffic and would have a sufficient turning radius for large trucks planning to turn left onto Petitioners' access easement from the dominant estate. First Alternative The first alternative suggested by the Petitioners would be approximately 240' west of the planned median opening that allows traffic to enter the drive in front of the Wilson property. In other locales with similar development and a similar roadway design, the Department does not allow median openings within 660' of other median openings. Speed is one of the prime considerations. Longer acceleration and deceleration lanes are needed on roads with higher speeds such as this one, to allow drivers reaction time to use the openings. A short lane, such as the one proposed, would create a safety hazard and would not solve the problem the Petitioners are seeking to solve: the difficulty a driver would have with the turn of the long low-boy trailer from the eastbound lane into their access easement back to their property. There is a conforming road connection which allows Petitioners a reasonable means of connection to the public roads system. Second Alternative The second alternative failed to detail information for all properties using the proposed median opening. In addition, there was no concurrence by all affected property owners on the joint driveway usage. The plan greatly enhances the value of Petitioners' property, which does not even front the existing road. The plan also significantly decreases the value of the adjoining Wilson property, the dominant estate to Petitioners' property, and the right-of-way previously purchased by the Department. The right-of-way was purchased to provide the dominant estate a reasonable means of connection to the public roads system from the driveway also used by Petitioner. Additional Findings Why the Requested for Median Openings Should Not Be Granted The Petitioners' purchase and use of this back portion of the parcel was not contemplated by the road designers at the time the road improvement design with median placements went into effect. Right-of-way was purchased by the Department to create a frontage road to provide reasonable access from the drive now used by Petitioners to the dominant estate that used the drive to connect to the public road system. The problem the Petitioners are seeking to cure with the proposed median opening is curable without obligating the State to create an additional median opening or improving the access to Petitioners' property while decreasing access to other property owners whose property abuts State Road 80. For example, the Petitioners could advance the construction of the westbound right turn lane relating to their Phase Two construction. This would provide additional pavement width to aid in the negotiation of a turn. It would also be at Petitioners' expense, as previously stipulated to with Lee County in its approval of the Development Order for the property. A driver could also select a more appropriate turning area further east of the property on State Road 80 to reverse the direction of the low boy. A circumferential route of I-75, SR 78, SR 31 and then west of SR 80, could be used by the low-boy driver to eliminate the left turn across opposing traffic. The low boy driver could use the present median opening as designed. The tractor trailer could cross at the present opening, enter the right-of-way in front of the Wilson drive, and turn left on the one way frontage road which accesses the easement to Petitioners' property. Drivers should be cautioned to use an alternative route if other vehicles are stored in the right-of-way in front of the Wilson drive, waiting to turn left. This could prevent the safety problem previously raised by Walter D. Stephens, P.E. If the Department permitted either of the proposed alternative median openings, federal funding on the entire project could be in jeopardy. This could require the state to pay $34.6 million for the improvement out of its own funds.
Recommendation Based on the foregoing, it is RECOMMENDED: That Petitioners' application to relocate the median opening or for a joint use median opening be denied. DONE and ENTERED this 7th day of August, 1990, in Tallahassee, Florida. VERONICA E. DONNELLY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of August, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE No. 89-4196 Petitioners' proposed findings of fact are addressed as follows: Rejected. See HO #4. Accepted. Accepted. See HO #10-#11. Accepted. See HO #6. Rejected. Irrelevant. See HO #7-#9. Rejected. Irrelevant. See HO #4, #7-#9, and HO #12. Rejected. Contrary to fact. The Petitioners were either acting under self- imposed blindness (see Conclusions of Law) or were trying to increase the value of their back parcel at public expense. Rejected. The letter was not even from Petitioners. In addition, the county could have made an application to change the roadway traffic patterns under Section 335.20, Florida Statutes. Alternative routes for low boy trailers could have then been explained to the county by the Department. Accepted except for the improper conclusion that an "impasse" has been reached. This is a mischaracterization of fact. See HO #17. Accepted. See HO #18. Accepted. See preliminary matters. Rejected. Contrary to fact. The Petitioners could resolve any safety issues. See HO #28-#33. Rejected. Contrary to fact. See HO #28-#33. Rejected. Improper Conclusion of Law. See Section 335.187, Florida Statutes. The Petitioners are on notice that a permit must be obtained due to the significant change in the use, design or traffic flow of the connection and the state highway. Rejected. Irrelevant. Rejected. Irrelevant. There was no showing that Mr. Hunt could render an expert opinion that should be given greater weight than that of the professional engineer presented by the Department. Rejected. Contrary to fact. See HO #34. Respondent's proposed findings of fact are addressed as follows: Rejected. These definitions are defined by law and rule as they relate to this case. Accepted. See HO #17-#18. Accepted. See preliminary matters. Rejected. Irrelevant. Petitioners could have borne expense. 5. Rejected. Irrelevant. Accepted. Accepted. See HO #1. Accepted. Accepted. Accepted. Accepted. See HO #3. Accepted. See HO #3. Accepted. Accepted. Accepted. Rejected. See pleadings as to Petitioners in this case. Rejected. See HO #4 and HO #10. There was no showing of the parties interests in all businesses. It is not a significant material fact in these proceedings. Accepted. Rejected. Irrelevant. Accepted. See HO #10-#11. Accepted. Accepted. See HO #6. Rejected. Irrelevant. See HO #7-#9. Rejected. Irrelevant. Stevens & Layton, Inc. had its own consulting engineer. See HO #7. Rejected. Irrelevant. See HO #7. Accepted. See HO #7. Accepted. See HO #30-#33. Rejected. Speculative. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. See HO #24. Accepted. See HO #26. Rejected. This was not sufficiently proved at hearing. There was no evidence the Committee reviewed the proposals. Rejected. There was no evidence the Federal Highway Administration has been approached regarding the change in the median opening. Accepted. Accepted. Accepted. See HO #24. Accepted. Rejected. See #37 above. Rejected. See #38 above. Accepted. Accepted. Accepted. See HO #26. Rejected. See #37 above Rejected. See #38 above. Accepted. Rejected. Contrary to law. See Section 335.187(1), Florida Statutes. Rejected. Contrary to evidence presented and law previously cited in #51 above. Rejected. Irrelevant. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. See HO #24. COPIES FURNISHED: Edward M. Chew, Esquire Department of Transportation P.O. Box 1249 Bartow, FL 33830 J. Jeffrey Rice, Esquire Goldberg, Goldstein & Buckley, P.A. P.O. Box 2366 Fort Myers, FL 32902-2366 Ben G. Watts, Secretary Department of Transportation 605 Suwanee Street Tallahassee, FL 32399-0458 Thornton J. Williams, General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, FL 32399-0458 =================================================================
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 The Respondent, Larry C. Griggs, is licensed as a certified general contractor, holding license number CG C001910. During the years 1979, 1980 and 1981 the Respondent was president of Kramer Homes, Inc., and in this capacity he acted as contractor for the construction of a project in Dade County known as Woods Landing. Kramer Homes, Inc., entered into subcontracts in connection with the Woods Landing project, and listed itself as contractor on these subcontracts. Kramer Homes, Inc., also caused the notice of commencement to be published, and it obtained the construction loan and paid some of the bills incurred. The Respondent, however, failed to qualify Kramer Homes, Inc., with the Construction Industry Licensing Board. The Respondent admitted the above facts, but explained that he had no intent to violate the construction industry licensing law. He asserts that he was confused as to the proper practice because he owned and operated both Kramer Homes, Inc., and his other corporation, Larry C. Griggs, Inc., which he did qualify. During the course of the Woods Landing project, funding problems developed which resulted in the failure of the Respondent to pay 16 creditors for materials furnished or services performed at Woods Landing when payment was due. Subsequently however, the Respondent has caused payment to be made, or has made arrangements for payment, to all such creditors except for five. The creditors remaining unpaid are Miami Comfort Air, Style Light, Inc., Gem Cabinet Company of Miami, Inc., World Tile Company, and Dixie Clamp and Scaffold, Inc. On approximately September 11, 1981, the Respondent issued a check on a Woods Landing account, payable to Miami Comfort Air, in the amount of $5,000. Previously, on July 31, 1981, the Respondent had acknowledged the debt due Miami Comfort Air, and had made arrangements to pay $8,000 by September 1, 1981. The check for $5,000 was in partial payment of the total debt. The check for $5,000 issued by the Respondent on September 11, 1981, to Miami Comfort Air was returned unpaid by the bank marked not sufficient funds. When the Respondent learned that this check had not been paid, he failed to make it good or to make suitable arrangements for payment of the amount due Miami Comfort Air. The Respondent contends that be believed that there were sufficient funds in his account when he issued the $5,000 check to Miami Comfort Air. He explained that his bank, County National Bank of South Florida, became insecure with the financial aspects connected with the Woods Landing project, and withdrew interest from his account without advising the Respondent, at or about the time he issued the check to Miami Comfort Air. He asserts that it is his intention to pay all of the creditors of this project, and he established his payment record of the creditors who had been paid as of the date of the hearing. Miami Comfort Air has reduced its claim against the Respondent to judgment which the Respondent has not paid, but has elected to appeal, although he did not appear in court to defend the claim when suit was filed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent, Larry C. Griggs, be found guilty of violating Sections 489.129(1)(d), (g), (j) and Section 489.129(1)(c) to wit Section 455.227(1)(a), Florida Statutes, and that he be assessed an administrative fine of $250 on Count 1, $100 on Count 11 and $1,000 on Count 111, for a total fine of $1,350. THIS RECOMMENDED ORDER entered on this the 24th day of January, 1983. 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 January, 1983. COPIES FURNISHED: Michael J. Cohen, Esquire Suite 101 Kristin Building 2715 East Oakland Park Blvd. Fort Lauderdale, Florida 33306 James L. Wall, Jr., Esquire 407 Lincoln Road Miami Beach, Florida 33139 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202
The Issue The issue is whether Respondent should deny Petitioner's application for a sign permit, because the proposed site is not zoned commercial and, therefore, fails the requirement for commercial zoning in Subsection 479.111(2), Florida Statutes (2007),1 and the location does not qualify as an un-zoned commercial/industrial area within the meaning of Subsection 479.01(23).
Findings Of Fact Respondent is the state agency responsible for regulating outdoor signs at the proposed site. The proposed site is located at 2505 West Bella Vista Street, Lakeland, Florida. Petitioner is a Florida corporation engaged in the business of full-service advertising in the state, including road-side signs or billboards. On March 21, 2008, Petitioner submitted an application for an outdoor advertising permit for two structures with four sign faces identified in the record by application numbers 57095, 57096, 57097, and 57098. On March 31, 2008, Respondent issued a Notice of Denied Application (the Notice). The Notice notified Petitioner of proposed agency action to deny the permit application. The Notice states two grounds for the proposed denial. The first ground alleges the “Location is not permittable under land use designations of site [sic]” within the meaning of Subsection 479.111(2). The second ground alleges the “Location does not qualify as unzoned commercial/industrial area” within the meaning of Subsection 479.01(23). Section 479.111 applies to signs located within the interstate highway system and the federal-aid primary highway system (the regulated highway system). The proposed site is located within the regulated highway system adjacent to Interstate 4 in Polk County, Florida. Subsection 479.111(2), in relevant part, authorizes signs within the regulated highway system which satisfy one of two disjunctive requirements. A sign must be located in either a “commercial-zoned” area or must be located in a “commercial- unzoned” area and satisfy a statutorily required use test.2 The term “commercial-unzoned” is defined in Subsection 479.01(23). However, a determination of whether the proposed site satisfies the statutory use test for a “commercial-unzoned” area is not necessary if the proposed site is found to be in a “commercial-zoned” area. The Legislature has not defined the term “commercial-zoned” area, and Respondent has cited no rule that defines the term. The issue of whether the proposed site is in a “commercial-zoned” area is an issue of fact and is not within the substantive expertise of Respondent. Even if the definition were within the substantive expertise of Respondent, Respondent explicated no reasons in the evidentiary record for deference to agency expertise. The evidentiary record explicates reasons for not deferring to purported agency expertise in this case. Respondent previously approved a sign permit from the same applicant on the same property. Petitioner spent $23,000.00 to move the previously approved sign so that both the proposed and existing signs could be permitted on the same property. It is undisputed that the proposed site is located on property zoned as Leisure Recreational in the Polk County Comprehensive Plan. It is also undisputed that Leisure Recreational “allows for multiple uses including commercial.”3 However, Respondent interprets the Leisure Recreational designation to be an “unzoned-commercial” area, because “The subject parcel is not explicitly zoned commercial. ”4 Respondent apparently has adopted a titular test for determining whether the proposed site is “commercial-zoned.” If the zoning designation does not bear the label “commercial,” Respondent asserts it is not “commercial-zoned” within the meaning of Subsection 479.111(2). The fact-finder rejects that assertion and applies a functional test to determine whether the local zoning label permits commercial use. A preponderance of the evidence supports a finding that the local zoning label of Leisure Recreational means the proposed site is “commercial-zoned” within the meaning of Subsection 479.111(2). Credible and persuasive expert testimony shows that the Leisure Recreational zoning designation specifically designates the proposed site for commercial uses, within the meaning of Subsection 479.01(23),5 including retail structures up to 20,000 square feet, bars, taverns, marinas, and fishing camps. The commercial uses allowed under the Leisure Recreational zoning designation are not discretionary with county planning staff but are permitted as a matter of right. Much of the dispute and evidence in this proceeding focused on two use tests that Respondent performed in accordance with Subsections 479.01(23)(a) and (b). However, the statutory use test applies only to site locations that are “commercial- unzoned.” Findings of fact pertaining to the accuracy of the use tests utilized by Respondent are unnecessary because they are inapposite to “commercial-zoned” property such as the proposed site.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order granting the application for a sign permit. DONE AND ENTERED this 8th day of April, 2009, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of April, 2009.
