The Issue Whether applicant is eligible for relocation assistance monetary benefits pursuant to Public Law 91-646 and Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970. Although notice of hearing was provided to Mr. and Mrs. Limegrover on March 26, 1976, they did not appear at the time of hearing. Upon telephonic inquiry on June 8th by a representative of the Department of Transportation, Mr. Limegrover advised that he had received the notice and although he had intended to call the Department of Transportation concerning the matter, he had forgotten to do so. He stated that he desired a continuance of the case. His request was objected to by counsel for the Department of Transportation. The request for continuance was denied as being untimely and good cause not having been shown therefor. The hearing was conducted as an uncontested proceeding.
Findings Of Fact By letter of October 20, 1975, Mr. and Mrs. Richard Limegrover of Courtly Manors Mobile Home Park, Hialeah Gardens, Florida, were advised by the Florida Department of Transportation that it was in the process of acquiring right-of-way for State Road #25 (U.S. 27) in their area, and that the mobile home lot the Limegrovers occupied as tenants would be required for construction of the facility. The letter provided the Department's assurance that they would not be required to move until at least 90 days had elapsed from the date of receipt of the letter, and that they would receive a further notice specifying the actual date by which the property must be vacated at least 30 days prior to the date specified. The letter concluded by an expression of the Department's desire to assist in relocation and to answer any questions concerning such matters. On December 8, 1975, a further letter was sent to the Limegrovers by the Department of Transportation assuring the addressees that the prior letter had not been a notice to move and that no one at the Courtly Manors Mobile Home Park would be required to move until negotiations with the owner had been completed or monies placed with the Clerk of the Circuit Court of Dade County by court order. It further stated that in the interim period relocatees living within Courtly Manors who were eligible and decided to move on their own initiative would be assisted by the Department in their relocation. Limegrover called Mr. Carl Moon, Right-of-Way Agent, Department of Transportation, Ft. Lauderdale, on December 11, requesting assistance in arrangements for moving his mobile home. Moon discovered that Limegrover wanted to move before January 1, 1976, as he had reserved a lot in another mobile home park. However, Limegrover told him that when he advised his current landlord on December 11 of the projected move on December 30, the landlord stated that in the absence of 30 days notice, Limegrover must forfeit his $90.00 security deposit. Limegrover told Moon that he felt the Department of Transportation should pay the $90.00 security deposit since he was being forced to move by that agency. Moon told him that he was not required to move that soon, but Limegrover was unwilling to wait, fearing that he would not be able to find a satisfactory place later on. Accordingly, Moon assisted him in his moving arrangements and Limegrover was paid for his moving expenses in the amount of $640.00 and smaller sums for reinstallation of his telephone and disconnection and reconnection of his gas equipment. Inasmuch as the Department of transportation declined to pay the $90.00 representing alleged forfeiture of the security deposit, Limegrover filed this relocation appeal. (Testimony of Moon, Exhibits 1 & 2).
Recommendation That the appeal of Richard and Jane Limegrover, in the amount of $90.00, be denied. DONE and ENTERED this 13th day of July, 1976, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Phillip Bennett, Esquire Department of Transportation Room 562 Haydon Burns Building Tallahassee, Florida Richard S. and Jane E. Limegrover Lot F4, Haven Lakes Mobile Home Park 11201 S.W. 55th Street Miramar, Florida 33025
The Issue Whether Respondent is in violation of the Driveway Permit issued to him October 11, 1984, in having more RV parking spaces than authorized by the permit.
Findings Of Fact Respondent is the owner of the Peace Creek RV Park located on the east side of U. S. 27 in Polk County, Florida. He also owns the land immediately surrounding the RV Park. In 1984, Respondent was granted highway connection permit No. B-1698 to provide ingress and egress to the RV Park (Exhibit 1). Although Respondent initially applied for a highway connection permit for a 110 space RV Park, this was modified to 98 spaces and approved for 98 spaces. In 1984, the DOT regulations for highway connection permits required the applicant to provide a left-turn lane into RV parks having 100 or more spaces. For RV parks with less than 100 spaces, no left-turn lane was then required. Although Respondent contends he was unaware that the RV park was approved for only 98 spaces instead of the 110 provided, it is found as a fact that in 1984 Respondent was aware that the plans for parking spaces at the RV park were reduced from 110 to 98 to avoid the additional expense of providing for a left-turn lane, and at the present time he does not recall his acquiescence in that determination (Exhibits 1 and 12). This RV park is equipped for 110 spaces. Traffic along U. S. 27 has increased in the vicinity of the Peace Creek RV Park from an average rate of approximately 8700 vehicles per day in 1985, to 13,600 in 1989 (Exhibit 3). Driveway permit requirements have changed over the years to require more and/or greater safety features. The latest change occurred effective in 1990, and permit requirements now include the requirements for curbs, longer left-hand turn lanes (more storage space) and wider openings in the median than existed in prior years. Respondent does not really object to the requirement to install a left- turn lane, but feels the width of the opening and curb requirements are excessive. Respondent submitted no credible evidence to show the 1990 requirements of DOT for driveway permits are arbitrary, capricious or unnecessary to provide a safe entrance to or exit from U. S. 27 by vehicles entering or leaving Respondent's RV park. Respondent presented evidence that other highway entrances both north and south of the Peace Creek RV Park were approved without curbs and with smaller openings than the 1990 regulations require. However, these highway connections were approved when U. S. 27 was less busy and when the regulations were less demanding than they are at the present time. Respondent also presented evidence that he has provided rights of way and borrow pit easements for DOT in the past at no cost or for a nominal amount.
Recommendation It is recommended that G. W. Mann's existing highway connection permit be revoked and, if he modifies the existing entrance to comply with the current requirements, that, upon completion of this modification, G. W. Mann be granted a new highway connection permit. ENTERED this 17th day of July, 1990, in Tallahassee, Florida. K. N. AYERS 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 17th day of July, 1990. COPIES FURNISHED: Vernon L. Whittier, Jr., Esquire 605 Suwannee Street Tallahassee, FL 32399-0458 G. W. "Buck" Mann, Jr. Box 348B Buck Mann Road Winter Haven, FL 33884 Ben G. Watts Secretary Department of Transportation 605 Suwannee Street Tallahassee, FL 32399-0458 Attn: Eleanor Turner, MS 58 Thornton J. Williams General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, FL 32399-0458
The Issue Whether Petitioners maintained a separate household within a multiple occupant displacement dwelling for purposes of calculating the appropriate amount of their relocation assistance benefits.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Petitioners, Anthony T. Black and Melissa Owen, formerly resided in a mobile home at 5315 Drew Street, Brooksville, Florida. Respondent, Department of Transportation (DOT), recently began acquiring property for the construction of the Suncoast Parkway, a non-federal-aid, limited access toll facility which will run forty miles from just north of Tampa, Florida, to Brooksville, Florida. Among other properties, DOT has acquired parcel number 144.001T on which Petitioners once resided, and they have been forced to relocate to another residence. This controversy concerns a determination as to the appropriate amount of relocation benefits to which Petitioners are entitled. The amount of benefits due a displaced person is determined by a federally-mandated formula codified in 49 Code of Federal Regulations, Part 24, and adopted by DOT. The regulations provide that if multiple persons live in the same dwelling, and those persons can establish that they maintained separate households within a single-family dwelling, they are entitled to greater benefits than if all persons are considered a single household. Federal regulations contain no definitive guidelines on this issue, but rather they leave that determination to the discretion of the state agency administering the program. In this unusual case, Petitioners contend that they were a "separate household" within a single-family dwelling which was jointly shared with another person. DOT contends, however, that Petitioners are entitled only to a prorata share of a single payment to all occupants of the dwelling. The seven-room mobile home at 5315 Drew Street was owned by Margie Black, the mother of Anthony T. Black. Beginning in January 1995, she allowed her son, his girlfriend, Melissa Owen, and a friend of her son, Daniel L. Bell, to live in the mobile home rent-free, but the tenants were required to pay for taxes, utilities, and the upkeep of the premises. At different points in time, other persons also shared the home, but they vacated the premises before this dispute arose. There was no written agreement between the three tenants on how to allocate living space or pay expenses, but they informally agreed that they would share in common expenses, such as utilties and maintenance repairs. Bell lived in one of the three bedrooms in the mobile home, while Petitioners shared another. In order to qualify for assistance, a tenant must have occupied the premises for at least 90 days before the displacement occurred, a requirement easily met by Petitioners. Also, replacement housing assistance is restricted to an amount not to exceed $5,250.00 per household. This cap may be exceeded when a person qualifies for a super rent supplement in order to place the displaced person in "last resort housing." In this case, Petitioners qualifed for such a supplement because there were no comparable mobile homes in the area. In calculating the amount of the super rent supplement, DOT is required to ascertain the amount of rent paid by the displaced persons, their income, and their monthly utility bills. To assist it in gathering this information, DOT utilizes a private consulting firm, Universal Field Services (UFS), whose representatives meet with the displaced persons. Although the parties have disagreed as to the degree of cooperation UFS and DOT received from Petitioners in verifying their income, utility bills, and rent, they have ultimately agreed that, if the three tenants are treated as multiple occupants of one displacement dwelling, then based on Petitioners' annual income and utility payments in 1995 and 1996, Petitioners are entitled to $9,027.08 in total relocation assistance payments, including the super rent supplement. This amount represents two-thirds of the total payment of $13,541.22, which is the product of a federally-mandated formula. Bell, the other tenant, received the remaining one-third of the payment. The parties also agree that if only a single household existed, DOT's calculation is correct. Petitioners contend, however, that they maintained a separate household from the third tenant, and thus they are entitled to a greater amount of assistance. Although there are no written state guidelines on how to make this determination, as a matter of policy, DOT requires that the tenants provide written documentation and other proof to establish that the tenants maintained separate households within a single residence. While it has never been confronted with a "separate household" claim before, to establish a good claim, DOT suggested that, at a minimum, the claimants would need to have a written lease by each of the tenants reflecting the rental of certain space for a specific amount of rent each week or month, and perhaps written rules regarding the use of the space that tenants must comply with. In addition, the dwelling would have to have separate and exclusive living areas for each tenant, such as separate entrances, kitchens or efficiency areas, that would not cross over into any common areas. Examples of such dwellings would be a boarding room, hotel, adult congregate living facility, duplex, or mother-in-law suite. In this case, there was no written lease agreement by any of the tenants concerning each tenant's respective space since all persons lived rent-free on the premises. There was also no formal agreement or rules governing the use of common living areas by the tenants. While it is true that Bell had a separate entrance to his bedroom, he was allowed to keep food in the same refrigerator used by Petitioners, he occasionally cooked or ate meals on the premises, and he was not prohibited from using other common areas of the home. Given these circumstances, and the lack of any documentation to the contrary, it must be found that all persons occupying the dwelling shared a single- family dwelling and that a separate household did not exist. Petitioners contended that the process was flawed because UFS personnel made only one visit to the premises before making a recommendation in the case. Petitioners were, however, allowed to submit further documentation after that visit to substantiate their claim, and at least one other UFS representative visited the premises on a later date. In addition, a DOT supervisor visited the home and made the final agency decision. Petitioners also suggested that the allocated benefits are insufficient to cover their new rent. But DOT has no discretion except to follow the federal formula in allocating benefits. Petitioners further asserted that the "comparable" property found by DOT to replace the rent-free mobile home was too expensive. Unfortunately, however, this concern is not an issue in this proceeding. Finally, Petitioners pointed out that other displaced persons have experienced difficulty in dealing with UFS personnel. Even if this were true, it would have no bearing on the issues in this case since all UFS determinations are preliminary in nature and subject to DOT review and an evidentiary hearing if requested by the parties.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Transportation enter a Final Order denying Petitioners' request for greater relocation benefits, and that it reaffirm the amount previously awarded. DONE AND ENTERED this 16th day of April, 1998, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675, SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this day 16th of April, 1998. COPIES FURNISHED: Diedre Grubbs, Agency Clerk Department of Transportation 605 Suwannee Street Mail Station 58 Tallahassee, Florida 32399-00458 Anthony Black Melissa Owen Post Office Box 10868 Brooksville, Florida 34603 Andrea V. Nelson, Esquire Department of Transporation 605 Suwannee Street Mail Station 58 Tallahassee, Florida 32399-0458 Pamela S. Leslie, Esquire Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32399-0450
The Issue Whether the comparable replacement dwellings used by the Jacksonville Transportation Authority (JTA) in the computation of the replacement housing payment offered to Petitioner were sufficient under the requirements of Title 49 C.F.R., Part 24, as adopted under the Florida Department of Transportation Right of Way Manual (Right of Way Manual), and whether Petitioner's property had water access which could be considered a compensable major exterior attribute of Petitioner's residential dwelling.
Findings Of Fact The JTA is a state-chartered authority which is responsible for providing mass transit and building roads and bridges in Jacksonville, Florida. Petitioner is a commercial fisherman who owned two parcels of land in the eastern part of Jacksonville. He fished the local waters utilizing a boat which he owned. The two parcels of land owned by Petitioner were taken by the JTA under threat of condemnation. The JTA required this land so that it could be used in connection with a road construction project known as the Wonderwood Connector. The two parcels of land were situated adjacent to and on the south side of an unimproved public right-of-way known as Wonderwood Drive. The two parcels of land were internally identified by the JTA as Parcels 400 and 404. Only Parcel 404 is the subject of this case. Parcel 404 had an appraised value of $32,300.00 which the JTA offered to Petitioner for the fee simple title, and which Petitioner accepted. In addition to the value of the fee simple property, Petitioner was also eligible under the applicable statutes and guidelines to an RHP. Petitioner was eligible for a RHP because the cost of comparable replacement housing was in excess of the fair market value of $32,300.00 for Parcel 404. Respondent offered Petitioner an RHP of $35,600.00, which was based on an analysis of three comparable replacement dwellings in accordance with the requirements and procedures of Title 49, C.F.R, Part 24, as adopted by the Right of Way Manual. The JTA uses the Right of Way Manual in its acquisition programs for road, bridge, and highway construction. The comparable replacement dwellings used for computing the RHP were single family houses located 6.5 miles, 7.4 miles, and 6.4 miles from Parcel 404. They were functionally equivalent to Petitioner's displacement dwelling. Additionally, the comparable replacement dwellings used performed the same function, and provide a comparable or better style of living, as the displacement dwelling. The comparable replacement dwellings were reasonably accessible to Petitioner's place of employment. In other words, they were reasonably located near saltwater. Parcel 404 was not adjacent to any body of water. The title to Parcel 404 did reserve to the owner the right to use a platted easement for pedestrian access to Greenfield Creek, which was a saltwater creek. This easement was located south of Wonderwood Drive. This easement was not, by its terms, available for commercial uses and in fact was not used by Petitioner. North of Parcel 404, and slightly to the east, across Wonderwood Drive, Petitioner, prior to his difficulties with the JTA, maintained a floating dock on Greenfield Creek at which he moored his commercial fishing boat. Access to the dock was located on a right-of-way owned by the City of Jacksonville. It was convenient for Petitioner to walk across the road, embark on his boat, and go about his business as a fisherman. Petitioner believed that he had a right to ingress the area of the floating dock and believed he should have been compensated for the loss of this convenience as part of his RHP. The comparable properties used to determine the RHP were not so convenient to saltwater and, had Petitioner lived on any of the properties, he would have found it necessary to pull his boat on a trailer to a public launching ramp in order to conduct his fishing business. Because Petitioner had no right, title, or legal interest in the floating dock or the ground beneath it, the use of the area could not be considered to be a major exterior attribute of Parcel 404. There was no legal connection between Parcel 404 and the city's right-of-way on the saltwater creek, which Petitioner had used for his fishing business.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued denying Petitioner's claim for additional compensation. DONE AND ENTERED this 22nd day of August, 2002, in Tallahassee, Leon County, Florida. HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of August, 2002. COPIES FURNISHED: Thomas L. Thomas Route 1, Box 223T Nahunta, Georgia 31553 David Cohen, Esquire John C. Sawyer, Jr., Esquire Edwards & Cohen, P.A. 200 North Laura Street Jacksonville, Florida 32202
The Issue Whether the amount awarded Petitioner for relocation was a sufficient and proper award.
Findings Of Fact Prior to the acquisition of a highway right of way for project 57050- 2515 in Okaloosa County, Florida the appellant operated a small business on parcel 103, which was needed for the highway. The business was known as Koolie of West Florida, Inc., and among other things sold bottle drinks, blue luster products and large round cakes of soybean meal used for fish bait. On August 23, 1976 the Respondent, Department of Transportation, informed Mr. Dick Carter, the President and Owner of the business of the different options available for reimbursing him for moving expenses. It was explained that if he hired a licensed mover the Florida Department of Transportation could pay the mover on an actual cost basis. It was further explained that if he wished to move the business, using his own personnel, he would be reimbursed up to the amount of the lowest of two commercial bids. One commercial bid was obtained but the requirement of two commercial bids was waived for the reason that Crestview, Florida is a small town and has only one licensed mover. On September 29, 1976, Mr. Carter was informed of the amount of the bid and Mr. Carter chose to move his business himself, although Mr. Carter made known his dissatisfaction with the amount of the low bid. Upon learning of the dissatisfaction with the estimate, the Respondent Department requested Mr. Carter to notify it of the time and date of the move so that any additional moving expenses could be documented. The Department was not informed and the Petitioner moved to its new location. Thereafter, a claim was made for additional moving expenses and a supplemental move cost claim in the amount of $347.25 was offered to the Petitioner and he was notified that if the amount was not satisfactory, an administrative hearing would be arranged. The additional amount was refused and Petitioner requested the subject hearing. The supplemental move cost claim and the supplemental amount allowed, $347.25 was based on the certified inventory sent by the Petitioner to the Respondent. The move took place some four months after the inventory was sent to the Respondent and the Petitioner had expressed its dissatisfaction with the moving reimbursement, but although requested by the Respondent, did not notify the Respondent of the time and date of moving so that a representative of the Respondent could be present to assess the additional cost of moving, if any. Petitioner contends that the inventory sent the Respondent was incorrect and that instead of 200 soybean cakes that had to be moved it was in fact 1000 soybean cakes. Petitioner contends that he should have received $625.00 for 250 cakes of soybean meal which he said were destroyed in moving plus a sum of $97.50 which was in addition to the original estimate by the moving company. Respondent contends that there are provisions for a self move providing the cost is less than a $1000.00 on the lowest of two estimates; that in the City of Crestview there is only one certified mover so a special dispensation was allowed so that the one certified mover would submit an estimate of moving cost; the Petitioner provided an inventory, and an estimate of moving cost was submitted by Shaw, a certified mover. The Petitioner chose to move himself and was offered reimbursement in the amount of the estimate by the certified mover as revised and was also offered reimbursement for one-third loss of 200 cakes of soybean meal inasmuch as this was an uninsurable item. Respondent further shows that all of the inventory except the soybean cakes would have been insured by the mover in the event of breakage or damage and that Petitioner had the choice of being moved by a certified mover or moving himself. Respondent further contends that it properly followed the requirements of law and the Petitioner has been offered payment in accordance with law.
Recommendation Deny the petition. DONE AND ENTERED this 16th day of January, 1978, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: C. Thomas Holland, Esquire 440 North Main Street Crestview, Florida 32536 Philip S. Bennett, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304
Findings Of Fact Petitioner, Forman's Dairy Palm Nursery (the "Nursery"), is located in Broward County, Florida and is primarily engaged in the business of raising and wholesaling palm trees. The area in which the Nursery is located was originally settled by the parents of Hamilton Forman and Charles Forman in approximately 1910. The Forman property was developed into a diversified agricultural enterprise which consisted of approximately seven hundred acres. The Nursery was incorporated and began operations in approximately 1956 and is authorized to undertake a wide range of business ventures. The evidence did not establish the initial size of the Nursery or the ownership of the land on which the Nursery has conducted operations. Hamilton Forman is the president of the Nursery and is responsible for filing the tax returns and maintaining the other financial records of the corporation. The Nursery is one of many business ventures in which he is engaged. He owns fifty percent (50%) of the Nursery. His brother, Dr. Charles Forman, owns the other fifty percent (50%) of the Nursery. Charles Forman has been more involved in the agricultural and operational aspects of the Nursery. In approximately 1970, a portion of the Forman property was transferred to one of Hamilton Forman's sons for the purpose of establishing a cemetery. (This property will hereinafter be referred to as the "Cemetery.") Approximately thirty acres of land which had previously been part of the Nursery was conveyed for the establishment of the Cemetery. The Cemetery was subsequently conveyed to an unrelated conglomerate which continues to operate the Cemetery on property immediately adjacent to the Nursery. (The company which acquired the Cemetery will be referred to as the "Cemetery Company".) When the property was transferred for purposes of establishing the Cemetery, a deed reservation was inserted in the conveyance which allowed the Nursery to continue to use a portion of the property conveyed (approximately ten acres) until such time as the Cemetery needed it. (This provision will hereinafter be referred to as the "Deed Reservation.") Pursuant to this Deed Reservation, the Cemetery Company can regain use of the property at any time with a one year notification requirement. The specific provisions of the Deed Reservation were not established. Thus, the exact terms under which the Nursery continued to occupy the property are not clear and there is no evidence as to what rights the Nursery has under the Deed Reservation. Although it appears that approximately ten acres were originally subject to the Deed Reservation, it is unclear how much of the property currently occupied and utilized by the Nursery is actually owned by the Cemetery Company subject to this Deed Reservation. The property owned by the parents of Hamilton and Charles Forman abutted a road for a distance of approximately seven thousand feet. The road has been at its current location since prior to 1926. The road ultimately became State Road 84. There have been ongoing discussions and negotiations regarding the development of a limited access highway in the State Road 84 corridor for over twenty years. Hamilton Forman has closely followed the various proposals during this time period and has supported the development of such a highway The proposals came to fruition with the current on-going construction of the Interstate 595 ("I-595") expressway in the area of the State Road 84 corridor. The I-595 project is a federally assisted highway project undertaken by DOT. The evidence did not establish when the I-595 project was finally approved to begin acquisitions and construction, but the project was the culmination of years of effort. In approximately 1984 or 1985, DOT sent notices to all of the land owners in the area of the proposed limited access highway advising them of the potential need to acquire property for the I-595 project. When the location of the project changed, new notices were sent out in late 1985 or 1986. During this time period, DOT representatives approached Hamilton Forman and the Nursery regarding the acquisitions that were necessary for the I-595 project. Shortly thereafter, a portion of the property occupied by the Nursery was sold to a third party for the construction of a mini-warehouse. (The property sold for the warehouse will hereinafter be referred to as the "DiMar Property.") The transfer of the DiMar Property was completed on March 6, 1986. Hamilton Forman and Miles Austin Forman were the transferors in that transaction. The DiMar Property consisted of just under four acres. The Nursery occupied approximately three and one half of those acres. At the time of the sale of the DiMar Property, Hamilton Forman anticipated that the I-595 project would impact upon the operation of the Nursery and he recognized the possibility that the Nursery might not be able to continue to operate profitably because of that impact. No evidence was presented regarding the effect the transfer of the DiMar Property had on the profitability or sales of the Nursery or how the nursery stock located on the property was disposed of. The transfer of the DiMar property took place prior to the valuation dates for the acquisitions of property in the area by DOT for the I-595 project. Shortly after the transfer of the DiMar Property, DOT began acquiring property in the vicinity of the Nursery for the right-of-way for I-595. The evidence did not establish the exact acreage occupied by the Nursery either before or after the sale of the DiMar property. It appears that after the sale of the DiMar property but prior to any acquisitions for the I-595 project, the area occupied by the Nursery was somewhere between fifteen and eighteen acres. The direct acquisition of property required for the I-595 project included approximately two hundred feet along the southern frontage of State Road 84 which was being utilized by the Nursery. In total, approximately 2.75 acres of land that was occupied by the Nursery along this frontage was acquired for the I-595 project. (The acquisitions of property on which the Nursery was conducting operations will be referred to as the "Taking".) All of the property occupied by the Nursery and acquired as part of the Taking was actually owned by either the Cemetery (and occupied by the Nursery in accordance with the Deed Reservation discussed in Findings of Fact 5 above) or by Di-Mar. The evidence did not establish the terms under which the Nursery was occupying the property owned by DiMar. DOT paid the Nursery for the palm trees and nursery stock located within the area of the Taking. DOT also acquired approximately two acres from the Cemetery that was occupied and being held in reserve for expansion by the Cemetery Company. Prior to the acquisitions of property described in Findings of Fact 14 and 15, the Cemetery had direct access and egress to State Road 84. Because of the planned acquisitions, DOT recognized that a new access to State Road 84 was necessary for the Cemetery. In order to provide this new access for the Cemetery, DOT acquired an additional one half acre of land that was owned by the Cemetery Company but occupied by the Nursery pursuant to the Deed Reservation. (This half acre will be referred to as the "Trapezoidal Area.") The location and design for a new driveway-access to State Road 84 were negotiated with and approved by the Cemetery Company. (This new driveway will be referred to as the "Access Loop.") There is no indication that the Nursery was consulted or provided any input regarding its needs with respect to the Access Loop. The Respondent has completed construction of the Access Loop. It was anticipated that the Access Loop would be connected with the interior roadways of the Cemetery. The Respondent has paid a sum of money to the Cemetery Company as a "Cost To Cure" to enable the Cemetery Company to connect its internal roads with the Access Loop. As of the date of the hearing, the Cemetery Company had not connected its internal roads with the Access Loop. As part of the Cost To Cure, the Respondent paid the Nursery for the trees and Nursery stock located within the Trapezoidal Area where the new Access Loop was built. After the sale of the DiMar Property, the subsequent Taking for I-595 and the acquisition of the Trapezoidal Area for the new driveway, the Nursery continued its operations in an area of approximately twelve to fifteen acres. The evidence did not establish the ownership of the property on which the Nursery has continued operations. However, it is clear that at least a portion of the property, and perhaps as much as ten acres, are owned by the Cemetery Company and subject to the Deed Reservation. By letter dated March 31, 1988, the Cemetery Company advised Hamilton C. Forman that it was reclaiming approximately five acres of the land occupied by the Nursery pursuant to the Deed Reservation. (These five acres will be referred to as the "Reclaimed Land.") The letter states that the Reclaimed Land was necessary because of the taking by DOT of the Cemetery property as set forth in Findings of Fact 15 above. The letter purports to serve as the one year notification required by the Deed Reservation. The Reclaimed Land is among the Nursery's moot productive acreage. The evidence did not establish when, or if, this property was vacated by the Nursery and turned over to the Cemetery Company. No competent evidence was presented to establish when the Cemetery Company would have exercised its rights under the Deed Reservation if no portion of the Cemetery had been taken for the I-595 project. While Hamilton Forman testified that the Cemetery Company would not have needed the property occupied by the Nursery for approximately four or five years from the date it acquired the Cemetery (which was sometime in 1985 or 1986), his testimony is clearly hearsay which is not corroborated by otherwise competent evidence. The amount of land being reclaimed by the Cemetery Company (five acres) exceeds the amount of land acquired by DOT that was actually being utilized and occupied by the Cemetery at the time of acquisition (approximately two acres.) At the time the Forman property was developed, a system of underground water culverts and Sewell locks were established in order to control the surface water in the area and provide irrigation to the farm lands. These drainage and irrigation facilities (including the Sewell locks) were constructed several years prior to the establishment of the Nursery and they provide irrigation and drainage control on both sides of State Road 84. The nearby North New River Canal provides the source of water. The Formans have vested rights to draw water from the North New River Canal and to discharge water below the Sewell locks. The evidence did not establish the terms or duration of these vested rights but it appears that they will continue for a another sixty (60) to seventy (70) years. The Tindall Hammock Irrigation Soil Conservation District ("Tindall Hammock") was created in 1951. Charles Forman is the chairman of Tindall Hammock and Hamilton Forman is a director. Hamilton Forman was also one of the organizers of Tindall Hammock. 25. Tindall Hammock is the owner of some of the drainage facilities in the area of the Nursery. The Sewell locks are owned and controlled by the Central and Southern South Florida Flood Control District (the "Flood Control District.") Tindall Hammock has recently negotiated with the Cemetery Company regarding the relocation of a portion of the drainage facilities. As a result of the discussions between Tindall Hammock and the Cemetery Company, two easements have been granted to Tindall Hammock dated May 5, 1989. Tindall Hammock and the Cemetery determined the size and location of both of the drainage easements without any input from DOT. There are two separate areas involved in the relocation of the drainage facilities. The first consists of roughly .34 acres and runs approximately two hundred and sixty-six feet by fifty-six feet from the western border of the Nursery along the northern boundary of the Nursery following the line of the taking for the I-595 project. (This parcel will hereinafter be referred to as "Relocated Drainage Facility No. 1"). The second drainage easement also runs along the northern border of the Nursery following the boundary of the I-595 Taking. It starts from a point on the eastern boundary of the Nursery bordering the Cemetery, runs to the west for a short distance and then cuts diagonally through the existing Nursery to a point close to the southern border of the Nursery. (This easement will hereinafter be referred to as the "Relocated Drainage Facility No. 2"). Relocated Drainage Facility No. 2 is almost entirely included within the area of the Reclaimed Land. A new drainage ditch is proposed to be constructed in the area of Relocated Drainage Facility No. 2 to replace a drainage ditch which previously ran along the eastern edge of the Nursery and served as the boundary between the Cemetery and the Nursery. The proposed new drainage ditch will enable the Cemetery to make more efficient use of the Reclaimed Land. Tindall Hammock submitted a claim to DOT for the cost of the easements and for relocating the drainage facilities thereon. Tindall Hammock contended that the relocations were due to the I-595 project. DOT denied most of the claim. A portion of the relocated drainage facilities was necessary to replace and relocate drainage facilities that were within the area of the Taking and to replace drainage to the North New River Canal underneath State Road 84 which was severed as part of the construction of I-595. Therefore, DOT did construct or pay for the relocation of a culvert in the Trapezoidal Area and a drainage ditch in the area of Relocated Drainage Facility No. 2. DOT has not paid to relocate any other drainage facilities because it determined that the relocations were not the result of the acquisitions for the I-595 project. Tindall Hammock has not appealed DOT's denial of the claim regarding the rest of the relocated drainage facilities. Other than the facilities constructed or paid for by DOT, no new drainage facilities have been constructed in the area of Relocated Drainage Facility No. 2. It is not clear whether any new facilities have been erected in the area of Relocated Drainage Facility No. 1. The Nursery has been compensated by DOT for the palm trees or nursery stock that was located in the areas where the new drainage facilities have been built as set forth in Findings of Fact 27. Prior to this hearing, the Nursery had not sought payment for the palm trees or nursery stock located in the other areas of the Relocated Drainage Facilities No. 1 and No. 2. The evidence in this case failed to establish that the relocation of the drainage facilities was necessitated by the I-595 project except in those areas where DOT has already constructed or paid for the relocation. Throughout its existence and up until the construction of I-595, the Nursery had direct access to State Road 84. Prior to the Taking, the Nursery had two means of access from State Road 84: one was used primarily for an entrance and the other was used primarily for exiting. These access points were shared with the Cemetery. Prior to the I-595 project, the Nursery's two access points on State Road 84 were approximately six hundred feet apart. Both of these access points allowed persons entering or leaving the Nursery to turn either east or west and both access points provided direct access from east bound or west bound State Road 84 through median openings. After the Taking, the new Access Loop was constructed in the Trapezoidal Area to funnel traffic into the Cemetery as set forth in Findings of Fact 16. The evidence did not establish when this new Access Loop was constructed. The nature of the wholesale palm tree business requires large trucks and/or semi-tractor/trailers to remove the trees from the site. As a result of the Taking and the construction of the Access Loop, access to the Nursery has been significantly altered. The new Access Loop was not designed to accommodate the large trucks and semi-tractor/trailers that typically frequent the Nursery. Access to the Nursery is still possible off the new Access Loop. However, entry to the Nursery is much more difficult for large trucks and semi-tractor/trailers. After the Taking, large trucks and semi-tractors/trailers have a much more difficult time negotiating the turn within the Nursery to properly exit out onto the frontage road. While the new driveway makes access to the Nursery more difficult and causes some internal circulation problems, the Petitioner has not established that a more appropriate access cannot be designed within the remainder of the property. A redesign of the internal traffic circulation system for the Nursery may be necessary. No evidence was presented to demonstrate the viability, cost or effect of such a redesign. However, it appears that this access problem can be cured relatively easily. The new Access Loop was constructed on land now owned by the Respondent. It is not clear what rights, if any, the Nursery will have to the Cost To Cure roadways that are to be constructed to connect the Access Loop to the internal Cemetery property. At this point, the only access that the Nursery has to State Road 84 is off of the Access Loop constructed by Respondent. Prior to the Taking, Nursery customers had direct access to the Nursery from State Road 84. Now, customers are required to take a very circuitous route to reach the Nursery. After the construction of I-595, State Road 84 has become a frontage road adjacent to the interstate. In the after condition, the Nursery has direct access to only the east bound frontage road. In sum, prior to the acquisition, the Nursery had direct frontage on a major arterial road. It now has restricted access on the east bound portion of a frontage road. Only those travelers on the east bound frontage road will be able to access the Nursery in substantially the same manner as they did prior to the acquisitions. While it is clear that access to the Nursery has become more difficult, the evidence did not establish that the Nursery will not be able to operate profitably solely as a result of these conditions. Hamilton Forman testified that, until the I-595 project, the Nursery has been profitable during all of its years of operations. However, no competent evidence was introduced to show the profits that have been earned. No financial records of the Nursery were produced and some of the overhead and other records of the Nursery are shared with other businesses in which Hamilton Forman is involved. The gross sales of the Nursery have declined by approximately fifty percent from the year 1985 to 1988. Gross sales for the year 1985 were $174,364.95. Gross sales for the year 1986 were $163,484.41. Gross sales for the year 1987 were $144,573.87. Gross sales for the year 1988 were $87,116.00. Gross sales for the first nine months of 1989 were $43,909.00 which if annualized would result in total sales for the year of $58,647.00. The overhead costs involved in operating the Nursery have remained relatively constant throughout this time and the Nursery has not significantly changed its advertising efforts during this time period. Some of the lost sales may be attributable to a third party vendor who purchased the trees acquired by DOT following the acquisitions detailed in Findings of Fact 14 and 15. This third party vendor sold the trees which had been acquired from the Nursery at a significant discount over the prices that the Nursery was selling similar stock. The evidence did not establish the time frame during which this vendor was in business. Thus, it is not possible to determine the extent to which the Nursery's drop in sales was attributable to this third party vendor. Petitioner contends that its drop in sales is mainly attributable to the more difficult access to the Nursery. However, Petitioner's own witnesses regarding the value of the nursery stock have testified to the unique types and sizes of the palm trees at the Nursery. The uniqueness of the product sold by the Nursery should help insulate it from problems associated with more difficult access. Moreover, it is clear that a number of other factors have contributed to the decrease in sales including the loss of the DiMar Property, the competition from the purchaser of the palm trees acquired by DOT in the area of the Taking and the temporary disruption that has occurred because of the ongoing construction that has been taking place in the area for several years. After the Nursery learned it would have to turn over approximately five acres to the Cemetery Company as set forth in Findings of Fact 20 above, the Nursery submitted a claim to Respondent for the loss of its palm trees in this area (the "Claim"). The Nursery's Claim also sought reimbursement for all the remaining trees in the Nursery on the grounds that the Nursery could no longer continue to operate after it turned over the Reclaimed Land. Most of the palm trees in the remaining areas of the Nursery are planted in the ground rather than in pots. The value of the palm trees in the ground is approximately the same as the cost to move the trees. Moving the trees would stunt the growth of the trees for a period of eight months to a year after the move. In addition, it is reasonable to expect that a significant number of the trees would be unable to survive a move. The Petitioner has presented two valuations of the Nursery stock currently found within the entire remaining area occupied by the Nursery. The first valuation is dated May 2, 1988 and it includes a total of 6,739 trees which are valued at a total of $289,215.50. The second valuation is dated November 17, 1989 and includes 11,404 trees with a total value of $453,510. The Petitioner has not separated out the value of the trees in any specific area of the Nursery. No acceptable explanation was given for the great disparity between these two valuations completed only one and a half years apart. Therefore, the valuations are rejected. The Respondent has not presented any contrary evidence regarding the value of the trees located in the Nursery. DOT denied Petitioner's Claim on the grounds that the Taking by DOT of the property occupied by the Nursery did not necessitate the relocation of the entire Nursery operation. In making this determination, DOT refused to consider the effect on the Nursery of losing the five acres being reclaimed by the Cemetery Company. DOT has not made a specific assessment of what impact the Taking and the development of the new Access Loop has had on the business of the Nursery. DOT has concluded that the displacement of the Nursery in the area of the Taking (approximately 2.75 acre) in the Trapezoidal area (approximately .5 acres) and in the area of the new drainage ditch (less than .5 acres) do not necessitate the move of the entire Nursery operation. There is a great deal of conflicting evidence regarding the amount of land actually occupied by the Nursery. After thoroughly reviewing this evidence, it is concluded that, including the five acres being reclaimed by the Cemetery Company, the Nursery has approximately twelve to fifteen acres of land in which to carry out its operations. Petitioner has not presented sufficient evidence to establish that this area would be inadequate to continue profitable operations. The evidence presented at the hearing did establish that the economies of scale will no longer be favorable enough to allow the Nursery to continue to operate at a profit if and when it turns over the Reclaimed Land to the Cemetery Company. However, the evidence did not establish that the Nursery would be unable to operate at a profit if the Cemetery Company had not reclaimed the approximate five acres pursuant to the Deed Reservation. In evaluating relocation claims, DOT first determines whether a claimant has been "displaced" in the area of the taking. Prior to evaluating the Claim which is the subject of this proceeding, DOT had determined that the Nursery was displaced in the area of the Taking, in the Trapezoidal Area and in a small portion of the area of Relocated Drainage Facility No. 2 where the new drainage ditch was constructed. Based upon this determination, the Nursery was deemed eligible for relocation, cost reimbursement or reimbursement for actual direct loss of tangible personal property with respect to the palm trees located in those areas. The palm trees in those areas were considered moveable personal property by DOT because the intention was to sell the trees for transplantation off-site. Thus, the trees were deemed eligible for relocation, cost reimbursement or, if the Nursery elected not to move the trees, they were to be treated under the relocation guideline known as "Reimbursement for Actual Direct Losses of Tangible Personal Property." The Nursery stock was processed through relocation procedures and was handled separate and apart from the realty and improvement acquisitions. However, DOT denied the Nursery's subsequent Claim for relocating the palm trees in the remaining area of the Nursery on the grounds that the Nursery was not a displaced person in those areas. In applying the Relocation Act, DOT will, in certain instances, reimburse a claimant for relocating personal property not within the area of the take. DOT has not adopted any rules setting forth the factors that will be considered in determining whether the agency will pay for relocation costs of personal property that is not relocated within the area of the take. Among the factors that are considered when determining whether a displacee is entitled to relocation assistance for a partial taking include whether there has been a total severance of access, whether internal traffic flow in the remainder has been substantially impaired and such internal traffic control was an essential part of the business operation, whether a process system has been disrupted and there is no adequate space on the remainder to put that process system back into operation and whether the visibility of the business had been significantly impaired and the business is largely dependent on impulse buyers as opposed to destination shoppers.
Recommendation Based upon the foregoing findings of facts and conclusions of law, it is RECOMMENDED that a Final Order be entered denying Petitioner's claim for relocation expenses related to the Nursery stock outside the area of the Taking which has not previously been compensated. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 26th day of September, 1990. 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 26th day of September, 1990. APPENDIX TO RECOMMENDED ORDER CASE NO. 89-0084 Both parties have submitted Proposed Recommended Orders. The following constitutes my rulings on the proposed findings of fact submitted by the parties. Petitioner's proposed findings of fact and conclusions of law includes seven main sections. Section I is an Introduction, Section II is entitled stipulated Facts, Section III is entitled DOT Admissions, Section IV is entitled Unrebutted Facts in Evidence of the Petitioner, Section V is entitled Disputed Facts, Section VI is entitled Statutes regarding Eligibility for Relocation Assistance, Section VII is entitled Federal Case Law on Relocation-Assistance Eligibility and Section VIII is entitled Proposed Conclusions of Law. All of Petitioner's proposed findings of fact and conclusions of law have been considered in the preparation of this Recommended Order. This Appendix will deal only with the factual proposals set forth in Sections III, IV and v. The Petitioner's Proposed Findings of Fact "DOT ADMISSIONS" Paragraph Number in Paragraph Number in the Findings of Fact Petitioner's Section in the Recommended Order Where Accepted or "III. DOT Admissions" Reason for Rejection Rejected as overly broad and constituting a conclusion of law rather than a finding of fact. While this proposed finding may be true in some instances, the DOT statement which is relied upon for this proposal was limited to a specific factual setting. Rejected as irrelevant. Rejected as irrelevant. The subject matter is addressed in part in Findings of Fact 48. Adopted in substance in Findings of Fact 14 and 47. Adopted in substance in Findings of Fact 30 and 48. Subordinate to Findings of Fact 16 and 17. Subordinate to Findings of Fact 26, 27, 28 and 30 31 Subordinate to Findings of Fact 30, 42 and 47. Subordinate to Findings of Fact 13 and 18. Subordinate to Findings of Fact 14 and 15. Subordinate to Findings of Fact 16 and 30. Subordinate to Findings of Fact 16. Subordinate to Findings of Fact 30. No competent evidence was presented to establish the acreage involved in this "Cost To Cure" area. The evidence did establish that DOT did compensate the Nursery for some trees that were located outside the area of the Taking. Subordinate to Findings of Fact 8 and 9. Rejected as irrelevant. Subordinate to Findings of Fact 20 and 21. Adopted in substance in Findings of Fact 27. Adopted in substance in Findings of Fact 14, 17, 30 and 47. Adopted in substance in Findings of Fact 28, 30, and 47. Adopted in substance in Findings of Fact 28, 30, and 47. Subordinate to Findings of Fact 32, 33, and 34. Rejected as irrelevant. This subject is addressed to some degree in Findings of Fact 35. Rejected as vague and ambiguous. Rejected overly broad. Rejected as constituting a conclusion of law rather than a finding of fact. Rejected as constituting a conclusion of law rather than a finding of fact. Rejected as vague and ambiguous. This subject is addressed to some degree in Findings of Fact 48. Adopted in substance in Findings of Fact 46 and 47. Adopted in substance in Findings of Fact 48. Subordinate to Findings of Fact 48. Subordinate to Findings of Fact 48. Rejected as constituting a conclusion of law rather than a finding of fact. This subject area is related to Findings of Fact 48. Rejected as constituting a conclusion of law rather than a finding of fact. This subject area is related to Findings of Fact 48. Rejected as constituting a conclusion of law rather than a finding of fact. Adopted in substance in Findings of Fact Rejected as overly broad. 37.-38. Rejected as constituting a conclusion of law rather than a finding of fact. Rejected as constituting a hypothetical based upon facts not in evidence. Rejected as irrelevant. Subordinate to Findings of Fact 46. Rejected as constituting argument rather than a Finding of Fact. This subject matter is addressed in Findings of Fact 38. Rejected as irrelevant. Rejected as irrelevant. Rejected as vague. Subordinate to Findings of Fact 46. Subordinate to Findings of Fact 47. Subordinate to Findings of Fact 46 and 48. Subordinate to Findings of Fact 48. 50.-52. Rejected as unnecessary and as constituting legal interpretations rather than findings of fact. Adopted in substance in Findings of Fact 48. Adopted in substance in Findings of Fact 48. Rejected as irrelevant. Subordinate to Findings of Fact 48. Rejected as constituting argument and legal interpretations rather than a finding of fact. This subject area is addressed in Findings of Fact 48. Rejected as vague and ambiguous. The subject area is addressed in Findings of Fact 45, 46 and 47. Subordinate to Findings of Fact 46. Subordinate to Findings of Fact 34 and 46. Rejected as vague and ambiguous and irrelevant. "UNREBUTTED FACTS AND EVIDENCE Paragraph Number in Paragraph Number in the Findings of Fact Petitioner's Section in the Recommended Order Where Accepted "IV Unrebutted Facts or Reason for Rejection and Evidence Adopted in substance in Findings of Fact 4, 5 and 6. Subordinate to Findings of Fact 20. Rejected as vague, overly broad and irrelevant. Adopted in substance in Findings of Fact Subordinate to Findings of Fact 26. Subordinate to Findings of Fact 26. Adopted in substance in Findings of Fact 31, 36 and 37. Subordinate to Findings of Fact 34 and 37. Subordinate to Findings of Fact 37. Subordinate to Findings of Fact 46. Subordinate to Findings of Fact 2. Subordinate to Findings of Fact 23. Adopted in substance in Findings of Fact Subordinate to Findings of Fact 38. Adopted in substance in Findings of Fact 4. Adopted in substance in Findings of Fact 3. Rejected as irrelevant and not necessary. Subordinate to Findings of Fact 5 and 6. 19.-23. The gross sales figures are adopted in substance in Finding of Fact 38. The labor costs are rejected as being irrelevant. Adopted in substance in Findings of Fact 39. Rejected as irrelevant and not established by competent substantial evidence. Subordinate to Findings of Fact 31-41. Adopted in substance in Findings of Fact 33-34. Adopted in substance in Findings of Fact 33-34 and 35 Subordinate to Findings of Fact 46. Subordinate to Findings of Fact 39. Addressed in part in Findings of Fact 41. Adopted in substance in Findings of Fact 33. Subordinate to Findings of Fact 44. Subordinate to Findings of Fact 44. Subordinate to Findings of Fact 33, 34 and 35. Subordinate to Findings of Fact 46. 37-39. Subordinate to Findings of Fact 43. Subordinate to Findings of Fact 20 and 22. Subordinate to Findings of Fact 20 and 22. "DISPUTED FACTS" Paragraph Number in Paragraph Number in the Findings of Fact Petitioner's Section in the Recommended Order Where Accepted "V Disputed Facts" or Reason for Rejection and Evidence Rejected as irrelevant. Subordinate to Findings of Fact 26, 27 and 30. Subordinate to Findings of Fact 46. Subordinate to Findings of Fact 14, 15, 16 and 22. Subordinate to Findings of Fact 14. The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection. Adopted in substance in Findings of Fact 2. Rejected as irrelevant. Rejected as irrelevant. Adopted in substance in Findings of Fact 23. Rejected as irrelevant. Adopted in substance in Findings of Fact 3. Adopted in substance in Findings of Fact 3. Adopted in substance in Findings of Fact 3. Adopted in substance in Findings of Fact 3 and 38. Adopted in substance in Findings of Fact 7. Adopted in substance in Findings of Fact 31. Subordinate to Findings of Fact 26 and 27. Adopted in substance in Findings of Fact 25. Subordinate to Findings of Fact 24 and 25. Adopted in substance in Findings of Fact 24. Adopted in substance in Findings of Fact 4. Subordinate to Findings of Fact 7. Adopted in substance in Findings of Fact 7. Rejected as vague and irrelevant. This subject matter is covered in Findings of Fact 7. Adopted in substance in Findings of Fact 4. Subordinate to Findings of Fact 4, 5 and 6. Subordinate to Findings of Fact 4, 5 and 6. Subordinate to Findings of Fact 9 and 10. Subordinate to Findings of Fact 10 and 12. Subordinate to Findings of Fact 13 and 18. Adopted in substance in Findings of Fact 15. Rejected as vague. This subject matter is addressed in Findings of Fact 14. Rejected as vague. This subject matter is addressed in Findings of Fact 36 and 37. Subordinate to Findings of Fact 16. Adopted in substance in Findings of Fact 16. Subordinate to Findings of Fact 13 and 18. Subordinate to Findings of Fact 25 and 26. Subordinate to Findings of Fact 27, 28 and 30. Subordinate to Findings of Fact 26 and 27. Subordinate to Findings of Fact 29. Adopted in substance in Findings of Fact 26. Adopted in substance in Findings of Fact 20. Subordinate to Findings of Fact 38. Subordinate to Findings of Fact 38 and 46. Adopted in substance in Findings of Fact 21. 41.-44. Rejected as irrelevant and not established by competent substantial evidence. Rejected as vague and irrelevant. Rejected as vague and irrelevant. Rejected as vague and irrelevant. Subordinate to Findings of Fact 19. Rejected as irrelevant. Subordinate to Findings of Fact 46. Rejected as vague and irrelevant. Rejected as vague. Rejected as constituting argument rather than a finding of fact. Rejected as constituting argument rather than a finding of fact. No proposal submitted. Rejected as constituting argument rather than a finding of fact. COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458 Charles R. Forman Atkins, Krehl & Forman 320 Northwest Third Avenue Post Office Box 159 Ocala, Florida 32678 H. Collins Forman, Jr. Watson, Clark & Purdy Post Office Box 11959 Fort Lauderdale, Florida 33339 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Robert Scalan, Esquire Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458
Findings Of Fact In January, 1985, Petitioner acquired an existing retail florist business located at 416 Indiantown Road, Jupiter, Florida. Petitioner's business occupied one-half of the building located at that address. The remainder of the building housed La Casa Mexican Restaurant and a Metro Cellular Phone business. At the time that Petitioner acquired the business, the parking lot for the building consisted of 15 spaces and was shared by all three businesses. Six of those spaces were located behind the building and were accessible from an alley. Nine of those spaces, including the handicapped space, were located in front of the building and were accessible from Indiantown Road. The parking lot for the building constituted a legal non-conforming use, that is, it was permitted to exist without meeting current code requirements of the local government. The business lease entered into by the Petitioner on January 21, 1985, for a term of thirty months was essentially a "standard form" lease. However, Petitioner as Lessee and Petitioner's Lessor specifically added to the standard lease language a twenty-fourth clause which provided as follows: Twenty-Fourth: In the event Indiantown Road is widened during the term of this lease and the widening project results in a loss of more than two of the present ten [sic] parking spaces in front of the building, then the rental payments under this lease can be renegotiated by the parties, and if such renegotiations do not result in terms satisfactory to the tenant, the tenant will have the right to cancel this lease with thirty days notice to the landlord. Accordingly, Petitioner specifically retained the right to either stay or vacate the leased premises if the road-widening project resulted in a loss of more than two of the parking spaces in front of the building. The Department subsequently commenced its road-widening project which resulted in the Department's "taking" of two of the parking spaces in front of the building. The Department paid Petitioner's claim for business damages as a result of the loss of two parking spaces in the condemnation proceeding involving Petitioner and the property owner. After the loss of the two parking spaces, the front parking lot was re- designed so as to more closely comply with local code requirements. That re- design of the parking spaces reduced the number of spaces in front of the building by an additional two, resulting in a total reduction of parking spaces in front of the building by four. The re-design left a total of five spaces in front of the building, including a handicapped space. Although a local government can require a legal non-conforming use to be made conforming under certain circumstances, there is no evidence that the local government required the owner of the property leased by Petitioner to re- design the front parking lot according to code requirements. Accordingly, there is no showing that the deletion of the two additional parking spaces was a direct result of the road-widening project. On approximately July 1, 1991, Petitioner moved its retail florist business to 323 West Indiantown Road, Jupiter, Florida. Petitioner relocated its business at that time because Petitioner's president believed that business "...was at a point where it was just going to be falling off." (R. 37). The relocation of Petitioner's business was caused by Petitioner's decision to conduct its business from a different location. Petitioner did not move its business as a direct result of the Department's acquisition of two parking spaces. Accordingly, Petitioner is not eligible for relocation benefits.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Petitioner's application for relocation benefits. DONE and ENTERED this 3rd day of November, 1993, at Tallahassee, Florida. LINDA M. RIGOT 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 3rd day of November, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-7265 The Department's proposed findings of fact numbered 5-8 and 10 have been adopted in substance in this Recommended Order. The Department's proposed findings of fact numbered 1 and 2 have been rejected as being subordinate to the issues involved herein. The Department's proposed findings of fact numbered 3, 4, and 9 have been rejected as not constituting findings of fact but rather as constituting argument of counsel or conclusions of law. COPIES FURNISHED: Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Attn: Eleanor F. Turner, Mail Station 58 Tallahassee, Florida 32399-0458 James R. Clodfelter Authorized Representative Acquisition Consultant Enterprises, Inc. Boca Bank Corporate Center 7000 West Palmetto Road, Suite 503 Boca Raton, Florida 33433 Charles Gardner, Esquire Department of Transportation 605 Suwannee Street, Mail Station #58 Tallahassee, Florida 32399-0458
The Issue The issue presented is whether Petitioner City of Opa Locka is responsible for reimbursing the Department of Transportation for the cost of relocating water and sewer lines owned and maintained by Petitioner within the State Road 916 right-of-way.
Findings Of Fact Opa Locka Boulevard and N. W. 135 Street in Dade County, Florida, are paired one-way streets between I-95 and N. W. 27 Avenue. They are located within the city limits of the City of Opa Locka and have been designated as State Road 916. Public records reveal that the portions of Opa Locka Boulevard and N. W. 135 Street which were involved in the Department’s road construction project and the right-of-way attendant to those streets were dedicated to perpetual public use by private landowners platting subdivisions between 1928 and 1956. In 1959 the City of Opa Locka transferred those roadways and rights-of-way to Dade County, Florida, so that the County would be responsible for maintaining them. In 1979 Dade County transferred its interests to the Department. The State Road 916 designation was subsequently made. The Department determined the need to improve those streets by widening them and making other improvements such as installing drainage and lighting. As the Department prepared to begin that project, it conducted a utility pre-design meeting on May 26, 1992. Such a meeting involves the Department’s employees who will be supervising portions of a road improvement project and representatives of the owners of utilities located within the area of anticipated construction. The owners of utilities are advised as to the details and extent of the anticipated construction, and they mark maps as to the location of their utilities. As the road design process proceeds, agreements are made and relocation schedules are prepared. If practical, the Department will design the road around utilities which conflict with the location of the roadway. If designing around the utility is not practical, the owner is required to relocate any utility which conflicts with the Department’s roadway or which interferes with the construction project. If the utility owner intends to relocate its own utilities, a Utility Relocation Schedule is agreed upon by the owner and the Department. If the owner requests that the Department do the relocation work and agrees to pay the costs in advance, a Joint Participation Agreement is entered into, and the Department’s contractor performs the work. The City’s consulting engineer attended the May 1992 utility pre-design meeting and attended many subsequent meetings. Subsequent meetings were also attended by the City’s public works director and the City’s project engineer. During the pre-design and design stages of the road project, the Department was able to design around all utilities or obtain voluntarily removal or relocation by all utility owners except the City. The City maintained that it could not afford to remove or relocate its water and sewer lines. Both the City and the Department were very concerned about the location of the City’s lines and about the lines themselves. The lines were made of cement asbestos and were old. Cement asbestos lines cannot withstand nearby construction and will break. Neither the Department nor the City wanted the lines to break during construction, and the Department did not want to build new roads and have the lines underneath breaking afterward, requiring re-construction. As feared, the City’s sewer line ruptured while another utility owner was relocating its utilities in the area of the City’s sewer line prior to the Department’s construction work. Further, as a result of that other utility owner’s relocation work, it was discovered that the City’s water and sewer lines within the project limits were not in fact located where the City’s maps of the lines reflected. Therefore, the City’s utilities posed a danger to the construction project, and the Department could not allow the lines to remain wherever they were. Due to the City’s position that it could not afford to remove or relocate its water and sewer lines and due to the Department’s need to proceed with the construction project, the Department and the City’s representatives agreed that the Department would issue to the City a 30-day notice to remove or relocate, but the City would not do so. The Department would then do the work for the City, and the City would reimburse the Department for its costs under a reimbursement plan yet to be negotiated. That meeting was attended by the City’s consulting engineer, the City’s former public works director, and the City’s current public works director. Everyone attending agreed that the lines needed to be replaced with newer, stronger lines. The Department agreed to issue the 30-day notice, do the work, and then seek reimbursement from the City since doing so was the only solution to the problem which would allow the road project to proceed without substantial damages and increased costs due to delay. Based upon that agreement and the City’s inability to pay the costs of relocating its water and sewer lines, no Utility Relocation Schedule or Joint Participation Agreement was entered into by the City and the Department. The City’s consulting engineer drew preliminary plans for the relocation of the City’s utilities, and the Department submitted those plans to its contractor to obtain bids for the City’s relocation work. The contractor priced the work and obtained three bids. The subcontract was awarded, the prime contractor added its overhead costs, and that became the anticipated cost. The Department kept the City advised as to additional costs as they were incurred. On July 7, 1993, the Department issued its 30-day notice to the City, expecting the City to respond in the agreed non-adversarial manner. Instead, the City requested this administrative proceeding. As the work was actually performed, the City expressed no disagreement with the materials used or the construction techniques. The City’s representatives were frequent visitors to the construction site since the actual work disclosed more problems. Not only were the City’s utilities not located where the City indicated they were but also the construction crews encountered lines which the City did not know existed. These problems caused additional delays in the project and thereby caused additional expenses to the Department. The reasonable and necessary costs incurred by the Department to remove and relocate the City’s utilities within the project limits total $791,751.07
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED THAT a Final Order be entered finding Petitioner City of Opa Locka responsible for reimbursing the Department of Transportation in the amount of $791,751.07 for the costs incurred in relocating and replacing the City's water and sewer utilities. DONE AND ENTERED this 23rd day of April, 1997, at Tallahassee, Leon County, Florida. LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of April, 1997. COPIES FURNISHED: Patricia C. Ellis, City Attorney City of Opa Locka 777 Sharazad Boulevard Opa Locka, Florida 33054 Francine M. Ffolkes Assistant General Counsel Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Ben G. Watts, Secretary Department of Transportation c/o Diedre Grubbs Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Pamela Leslie, General Counsel Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458
Findings Of Fact The Petitioner owned property in Charlotte County, Florida which laid within the right of way of proposed Federal Highway 1-75. The Petitioner's property was required for the highway right of way. The Petitioner lived on the property in a mobile home for more than ninety (90) days prior to the time that officials of the Florida Department of Transportation initiated negotiations for acquisition of the property. During February, 1975, David L. Nicholson, a Right of Way Agent with the Department of Transportation, contacted the Petitioner in order to negotiate the acquisition of the Petitioner's property, and to explain the amount of relocation assistance benefits that the Petitioner might be entitled to receive in order to compensate him for his having to move his residence. Petitioner was offered $3,500.00 in relocation benefits. This offer was predicated on the Petitioner's remaining an owner/occupant of new property to which he moved. When Mr. Nicholson was advised that the Petitioner was going to be renting new property, rather than purchasing it, Mr. Nicholson advised the Petitioner that he could receive up to $4,000.00 in rent supplements. The Petitioner construed the $4,000.00 figure as the amount that he would receive. The $4,000.00 was actually the highest figure that the Petitioner could receive, and was considerably more than the Petitioner was entitled to receive. The Department of Transportation compensated the Petitioner for the cost of moving his mobile home, and setting it up on the lot which the Petitioner was renting. The amount provided the Petitioner for this purpose was $970.15. Petitioner concedes that he was adequately compensated for moving and setting up his mobile home. The rental value of the Petitioner's property in Charlotte County, without the mobile home on it was $50.00 per month. This figure is called the "economic rent" of the property. A comparable lot in Charlotte County, Florida, would have cost the Petitioner $55.00 per month to rent. The difference between the monthly rental of a comparable lot, and the economic rent of the Petitioner's property was $5.00. If the Petitioner received this amount for four years, he would be entitled to $240.00. The Department of Transportation offered to pay this amount to the Petitioner, but he refused it, contending that he is entitled to $4,000.00. No evidence was offered at the hearing from which it could be concluded that Petitioner was entitled to receive more than the $970.15 provided him to move and set up his mobile home, and $240.00, the difference between the rental value of a comparable lot, and the economic rent of the Petitioner's property for four years as relocation assistance benefits.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is, RECOMMENDED: That an order be entered finding the Petitioner entitled under the provisions of 42 U.S.C. 4624 to $240.00 in relocation assistance benefits above and beyond the $970.15 already provided; and that this amount be forwarded to the Petitioner. RECOMMENDED this 18th day of February, 1977, in Tallahassee, Florida. G. STEVEN PFEIFFER Hearing Officer Division of Administrative Hearings The Carlton Building, Room 530 Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of February, 1977. COPIES FURNISHED: Philip Bennett, Esquire Department of Transportation 605 Suwannee Street Tallahassee, Florida 32304 Veltie A. Dodson Route 5, Box 268 Rocky Mount, Virginia 24151 Tom B. Webb, Jr., Secretary Department of Transportation 605 Suwannee Street Tallahassee, Florida 32304
Findings Of Fact Petitioners own the Sea Cloud Motel with 11 rooms located at 540 South Gulf View Boulevard, Clearwater, Florida, in an area zoned CTF-28. CTF-28 is high density commercial-tourist and is dominated by motels, restaurants, and other businesses catering primarily to tourists. The Sea Cloud Motel has only ten parking spaces at present, with two of these spaces so located that with the space behind them occupied a car cannot get into or out of those spaces. Petitioners have leased five additional spaces from the Clearwater Point Deli on property adjacent to the Sea Cloud Motel (Exhibit 2). Adjacent to the Sea Cloud Motel is the Hibiscus Gift Shop owned and operated as part of the Red Carpet Resort Motel. Across the street from Petitioners' property is a convenience store with gas pumps and a car rental agency. Several realty offices are located in the general area of the Sea Cloud Motel in addition to restaurants and convenience stores. The principal objection to the special exception here requested came from adjacent property owners who fear the real estate office will aggravate the inadequate parking facilities presently existing on Clearwater Beach. The addition of the real estate office in a space less than 150 square feet will not require the addition of another parking space. The leasing of five additional parking spaces will more than adequately compensate for the additional traffic anticipated to be generated by a one-desk real estate office, particularly where the office is intended to concentrate on foreign visitors interested in real estate investments at Clearwater and will be operated by the co-owner of the motel, Kathleen M. Fuller, a registered real estate salesperson.
