IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM v. CASE NO. 5D00-30

Transcription

1 IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM 2001 DENNIS COULTER, J. LARRY HOOPER, L.C. DAIRY, INC., ET AL, Appellants, v. CASE NO. 5D00-30 ST. JOHNS WATER MANAGEMENT DISTRICT, ETC., Appellees. Opinion filed August 31, Administrative Appeal from the St. Johns Water Management. Kenneth G. Oertel and Timothy P. Atkinson, of Oertel, Hoffman, Fernandez & Cole, P.A., Tallahassee, for Appellants. / Robert P. Major and Dykes C. Everett of Winderweedle, Haines, Ward & Woodman, P.a., Orlando, and Stanley J. Niego and John W. Williams, Palatka, for Appellees. THOMPSON, C.J. Dennis Coulter, J. Larry Hooper, L. C. Dairy, Inc., and Wabasso Road Dairy, Inc., appeal an order of the St. Johns River Water Management District (district). We affirm. The district and Willowbrook Coal Company, a Pennsylvania corporation, entered a contract whereby Willowbrook sold the district a 2800-acre parcel of land in fee (the non-

2 dairy parcel) and a conservation easement across the adjacent 2800-acre parcel (the dairy parcel). The contract provided that dairy cows had to be removed from the dairy parcel before the sale closed, and prohibited concentrated animal feeding operations, including dairy operations, on the parcel. This contract was contingent upon the district s entering a contract with the United States Department of Agriculture (USDA). At the same time the agreement with Willowbrook was being negotiated, the district was negotiating with the National Resource Conservation Service of the USDA. The USDA was interested in purchasing a 30-year conservation easement across the non-dairy parcel as part of a federally funded program known as the Wetlands Reserve Program. Before the district and Willowbrook closed on their contract, the USDA agreed to purchase from the district a conservation easement across the non-dairy parcel for $4.2 million. The USDA transferred $4.2 million to the district s Land Acquisition Revenue Bonds Project Funds Account. Four days after the transfer, the district/willowbrook sale closed, and immediately thereafter the district/usda sale closed. The appellants, apparently unrelated to the seller, operated the dairy farm. Pursuant to the terms of the district/willowbrook agreement, the appellants moved their dairy operations and incurred considerable expense in doing so. They requested relocation assistance from the district under the Uniform Relocation Assistance Act (URA), 42 U.S.C. section 4601 et seq., and section Florida Statutes. Section of the URA requires Moving and related expenses (a) General provision -2-

3 federal agencies to provide relocation assistance to displaced persons. Section of the Whenever a program or project to be undertaken by a displacing agency will result in the displacement of any person, the head of the displacing agency shall provide for the payment to the displaced person of (1) actual reasonable expenses in moving himself, his family, business, farm operation, or other personal property; (2) actual direct losses of tangible personal property as a result of moving or discontinuing a business or farm operation, but not to exceed an amount equal to the reasonable expenses that would have been required to relocate such property, as determined by the head of the agency; (3) actual reasonable expenses in searching for a replacement business or farm; and (4) actual reasonable expenses necessary to reestablish a displaced farm, nonprofit organization, or small business at its new site, but not to exceed $10, Requirements for relocation payments and assistance of Federally assisted program; assurances of availability of housing Notwithstanding any other law, the head of a Federal agency shall not approve any grant to, or contract or agreement with, a displacing agency (other than a Federal agency), under which Federal financial assistance will be available to pay all or part of the cost of any program or project which will result in the displacement of any person on or after January 2, 1971, unless he receives satisfactory assurances from such displacing agency that-- (1) fair and reasonable relocation payments and assistance shall be provided to or for displaced persons, as are required to be provided by a Federal agency under sections 4622, 4623, and 4624 of this title; (2) relocation assistance programs offering the services described in section 4625 of this title shall be provided to such -3-

4 URA precludes a federal agency from providing federal funds for state projects unless the head of the federal agency receives assurance that the state displacing agency will provide assistance to displaced persons. Section , Florida Statutes, authorizes state agencies to provide relocation assistance. 3 In sum, the federal statutes mandate relocation assistance displaced persons; (3) within a reasonable period of time prior to displacement, comparable replacement dwellings will be available to displaced persons in accordance with section 4625(c)(3) of this title Relocation of displaced persons (1) It is the intent of the Legislature to authorize the state and its departments, agencies, political subdivisions, and legislatively established port and airport authorities to comply with the provisions and requirements of the Surface Transportation and Uniform Relocation Assistance Act of 1987, Pub.L. No , in those public projects or programs for which federal or federal-aid funds are available and are used. (2) As used in this section: (a) "State" means the State of Florida, any department, agency or political subdivision thereof, or any port or airport authority established by the Legislature. (b) "Public Law No " means the Surface Transportation and Uniform Relocation Assistance Act of 1987 adopted by the United States Congress. (c) "Displaced person" means any individual, partnership, corporation, or association that is required to move from any real property on or after March 20, 1972, as a result of the acquisition of such real property for public purposes, or who, as the result of the acquisition for public purposes of real property on which such person is conducting a business or farm operation as defined in Pub.Law No , is required to move said -4-

5 for persons dislocated by certain federal programs, and preclude federal funding for state programs unless the federal government is assured that the state will provide assistance to dislocated persons. Section , Florida Statutes, authorizes state agencies to provide relocation assistance within the meaning of the federal act. The instant case turns on whether the district received a grant, loan, or contribution from the federal government. A displacing agency is: any Federal agency carrying out a program or project, and any State, State agency, or person carrying out a program or project with Federal financial assistance, which causes a person to be a displaced person. 42 U.S.C. 4601(11) (emphasis added). Thus, a "displacing agency" is one that uses "federal financial assistance" to carry out its program. "Federal financial assistance" is defined as: business or farm operation. (3) The state is authorized and empowered, in acquiring real property for use in any public project or program in which federal or federal-aid funds are used, to make all such relocation and other payments to or for displaced persons as are required under the provisions of Pub.Law No , and to provide such displaced persons with relocation services and make available to them replacement dwellings, as required by Pub.Law No (4) The state is authorized and empowered, in acquiring real property for use in any public project or program in which federal or federal-aid funds are used, to follow and conform with the land acquisition policies set forth in Pub.Law No , and to pay or reimburse owners of property so acquired in the manner specified in Pub.Law No This authority shall include, as to federal-aid highways and airports, as a last resort, the use of eminent domain powers to acquire real property for replacement housing as required by Pub.Law No

6 42 U.S.C. 4601(4). a grant, loan, or contribution provided by the United States. We conclude that in the instant case the federal government did not make a grant, loan, or contribution to the district. As pointed out by the Administrative Law Judge below, the terms grant and contribution suggest a donation or subsidy, and the term loan suggests the temporary use of federal funds. Here, the federal government did not provide a loan to the district. The fact that the federal government transferred the purchase money to the district a few days before the sale closed does not make the transaction a loan: the USDA did not need to put the money in escrow pending the district s execution of the easement, because the district is a governmental entity. The federal government did not provide the district a subsidy, but paid $4.2 million for a 30-year conservation easement across the non-dairy parcel, and there is no suggestion in the record that the amount paid was less than the fair market value of the easement. And, as pointed out by the Administrative Law Judge, the Wetlands Reserve Program does not authorize any grants, loans, or contributions. Instead, the USDA is prohibited from paying more than fair market value for easements: 16 U.S.C. 3837a(f). (f) Compensation Compensation for easements acquired by the secretary under this part shall be made in cash in such amount as is agreed to and specified in the easement agreement, but not to exceed the fair market value of the land less the fair market value of such land encumbered by the easement. We do not think that the district s sale of an easement across the non-dairy parcel -6-

7 makes the district a displacing agency under the URA, because the district did not receive federal financial assistance in the form of a grant, loan, or contribution. Cf. Cook v. Budget Rent-A-Car Corp., 502 F. Supp. 494 (S.D.N.Y.1980) (construing the Rehabilitation Act, 29 U.S.C. 794, and holding that a business transaction whereby the government obtains goods or services for its own account at fair market value does not constitute federal financial assistance). AFFIRMED. HARRIS, J., concurs and concurs specially, with opinion. PLEUS, J., dissents without opinion. -7-

8 HARRIS, J. concurring and concurring specially Case No. 5D00-30 In this case, the District purchased a conservation easement over certain property owned by appellant's landlord, Willowbrook Coal Company. A condition of such purchase was that Willowbrook would deliver the property "cattle" free. This was because the purpose of the acquisition was to clean up the water of the St. Johns River and the presence of a cattle operation adjacent to the river was considered to be a major pollutant. Appellants were thus required to move their dairy operation from the property and did so. One would assume that either Willowbrook had the right to require such removal under any contractual relationship it had with appellants or was ready to pay (or perhaps did pay) appropriate restitution. Whatever. The District also, as a part of a single transaction, purchased the fee to adjoining property from Willowbrook and simultaneously sold a conservation easement over this parcel to The United States of America, "acting by and through the Commodity Credit Corporation, U.S. Department of Agriculture." The proceeds from this sale to the United States were in fact used by the District to acquire the property now subject to the federal government's conservation easement. Appellants claim a right under both state and federal statutes for a relocation award. I agree with the majority that neither is applicable. First, section , Florida Statutes, "authorizes" the District to "comply with the provisions and requirements" of the Uniform Relocation Assistance Act in those public projects for which federal-aid funds are used. Although the District is authorized by this statute to pay relocation assistance under certain circumstances, it is not directed to do so. In fact, unless the federal act authorizing the contribution of federal funds to a state

9 project "requires" relocation assistance, the District is not empowered to pay the cost of relocation. The purpose of section , in my view, is to authorize the District (and other state agencies) when entering into agreements with the United States (through its various agencies) in order to receive a "grant, loan or contribution" of federal funds for a particular project to agree to make relocation assistance payments. The federal act relied on herein by appellant imposes on the applicable federal agency, if the project requires the payment of relocation assistance, to require the state to give satisfactory assurance that it will pay the appropriate relocation assistance. The record in this case discloses that the applicable federal agency did not seek any assurance from the District that the District would pay relocation expenses. And there is no indication in the record that the District ever undertook the responsibility to pay such expenses. Hence, since the District did not agree, and was not "required" to agree, to pay relocation assistance, its authority to make such payment, even if it elected to do so, is lacking. Let's examine alternative choices the District could have made which would clearly not burden it with an obligation to pay relocation expenses: (1) Had the District purchased conservation easements over both parcels requiring the removal of the cattle and used only state funds, appellants would be entitled to no relocation assistance. (2) If the District had purchased a conservation easement over one parcel and the fee to the adjoining parcel with state funds and sometime later conveyed an easement over its fee to the federal government for valuable consideration, still no right to relocation assistance would accrue to appellants. (3) Assume that the District had purchased a conservation easement over the parcel containing the dairy operation with state funds and, at the same -2-

10 time, the federal government had purchased a conservation easement on the property adjoining the cattle operation directly from Willowbrook. Even then, neither the District nor the federal government would have an obligation to pay relocation assistance. Instead of choosing any one of these options, the District and the Department of Agriculture chose a procedure which combined all three - by simultaneously selling an easement to the federal government over adjacent property it acquired from Willowbrook at the same time it purchased the easement over the parcel containing the dairy operation, the District obtained federal funds which became "state" money which, together with other state funds, was used to acquire the property over which the federal easement applied. Does this violate the provisions of any state or federal law? The position taken by appellants herein is that the St. Johns River Water Management District may not escape its obligation to pay relocation assistance by the manner in which it structures its agreement with the federal agency. By so holding, appellant urges that we broaden the definition of "loan, grant or contribution" to include a displacing agency's receipt of income from the federal government in any form, even income received by selling property to the federal government for a consideration. I agree with the majority that it is up to Congress, and not this court, to define, or redefine, "federal financial assistance." The record herein suggests that only District money was used to acquire the conservation easement over the parcel on which the dairy was located and that the funds acquired from the sale to the United States contributed only to the purchase of the fee to the second parcel. -3-

11 Even assuming that this transaction was intentionally structured so as to avoid the consequence of paying relocation expenses, would that justify this court's intervention? Obviously the Department of Agriculture, charged with the responsibility of dispensing grants, loans and contributions under the federal program involved herein, found no violation of the federal statute since it participated in the arrangement and sought no assurance that relocation expenses would be paid. Its interpretation of the law entrusted to it for interpretation and application should be given some deference. By not requiring assurance that relocation expenses would be paid by the District, the Department of Agriculture clearly determined that this transaction was not covered by the Uniform Relocation Assistance Act. If the District gave no assurance that it would pay relocation expenses in order to receive a grant, loan or contribution of federal funds, then how does section , Florida Statutes, require (or even authorize) the payment of relocation expenses? There is a difference between avoiding an obligation and evading one. This distinction is most often encountered in tax situations. The Maryland Tax Court clearly enunciated this difference in Saks & Company v. Comptroller of the Treasury, 1989 WL (Md. Tax 1989): "Avoidance of a tax is a course of action whereby one adheres to the statutes in order to result in no tax being owed. Evasion of a tax is a course of action whereby one violates the law to result in no tax being owed or one refuses to pay a tax that is due and owing. Avoidance is permissible while evasion is not." The Supreme Court of Connecticut, in Steelcase, Inc. v. Crystal, 680 A.2d 289, 297 (Conn. 1996), stated it this way: "We have noted, however, that [u]nlike tax evasion, tax -4-

12 avoidance through careful planning of both transactions and corporate structure is a legitimate right of every taxpayer." In this case, it cannot be denied that an actual purchase of an asset for consideration took place. If one purchases a car he does not thereby loan, grant or contribute anything to the seller. The seller has received a purchase price, nothing more. Unless this sale of the easement herein was somehow a sham, then no grant, loan or contribution took place. To be a sham, the easement conveyed to the government would have to be meaningless. It is not suggested by this record that the sale of the easement to the United States was a sham, that there was a winking of the eyes as the money and the title to the conservation easement were exchanged. Indeed, the United States received and the District gave up many of the normal rights of the fee owner when the conservation easement was delivered. There was a quid pro quo. -5-