South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
Evelyn Allen vs. SCDOT

AGENCY:
South Carolina Department of Transportation

PARTIES:
Petitioner:
Evelyn Allen

Respondent:
South Carolina Department of Transportation
 
DOCKET NUMBER:
05-ALJ-19-0196-CC

APPEARANCES:
Evelyn M. Allen
Petitioner, pro se

Deborah Brooks Durden, Esquire
For Respondent
 

ORDERS:

FINAL ORDER AND DECISION

STATEMENT OF THE CASE

The above-captioned case is before this Court pursuant to 25A S.C. Code Ann. Regs. 63-322(D) (Supp. 2005) upon the request of Petitioner Evelyn Allen for a contested case hearing to challenge the decision of Respondent South Carolina Department of Transportation (Department) to deny her certain relocation assistance benefits. After timely notice to the parties, a hearing of this matter was held on November 10, 2005, at the South Carolina Administrative Law Court in Columbia, South Carolina. Based upon the evidence presented at that hearing and upon the applicable law, I find that the Department properly denied Petitioner’s request for additional relocation assistance benefits.

FINDINGS OF FACT

Having carefully considered all testimony, exhibits, and arguments presented at the hearing of this matter, and taking into account the credibility and accuracy of the evidence, I make the following Findings of Fact by a preponderance of the evidence:

1. Prior to mid-2004, Petitioner Evelyn Allen was the owner of real property located at 1364 Persimmon Ridge Road in North Myrtle Beach, South Carolina. The property was acquired by the Department pursuant to a condemnation action as part of a highway improvement project to construct the North Myrtle Beach Connector. The property in question had been improved with a mobile home that Petitioner used seasonally as a vacation home.

2. In acquiring the real property, the Department paid Petitioner just compensation for the property in the amount of $25,650, by a check dated July 9, 2004.

3. Additionally, the Department made two payments of relocation assistance benefits, totaling $15,811, to Petitioner. First, on September 21, 2004, the Department paid Petitioner $14,461 to purchase her single-wide mobile home pursuant to a pilot program in which such payment was made in lieu of reimbursement for costs that would be incurred in moving that mobile home to a new site. Second, on November 30, 2004, the Department paid Petitioner $1,350 in relocation benefits for the cost of moving Petitioner’s personal property from the mobile home.

4. The pilot program used by the Department to purchase Petitioner’s mobile home was approved by the Federal Highway Administration on March 29, 2004. The program authorized the Department to purchase certain mobile homes that were required to be moved as a result of the North Myrtle Beach Connector project. Under the pilot program, in situations where a mobile home could not be relocated, the mobile home could be purchased from the owner at its fair market value at the option of the mobile home owner. See Resp’t Ex. #9.

5. Petitioner did not occupy the mobile home at 1364 Persimmon Ridge Road as her primary residence for the 180 days preceding January 2, 2004, the date on which the Department initiated certain negotiations with Petitioner regarding the relocation of her mobile home. Rather, her primary residence and domicile was, and continues to be, in Smithfield, North Carolina, where she lives with her family and works in the family mobile home business.[1] Petitioner used the mobile home seasonally as a weekend retreat and vacation destination and planned to live there after she retired.

6. While the Department paid Petitioner certain relocation assistance benefits, it did not provide her with replacement housing benefits, because it concluded that she was not a displaced “owner-occupant” of the mobile home and thus was not eligible to receive replacement housing payments under the applicable federal regulations. Accordingly, the Department did not conduct an analysis of the comparable replacement housing for Petitioner’s mobile home available on the market.

7. Petitioner contends that a representative of the Department, Steven Imas, told her she was entitled to, and would receive, relocation benefits to cover moving and set-up costs related to moving a new mobile home she purchased in North Carolina to a lot she purchased in North Myrtle Beach. And, Petitioner has submitted a claim for $15,024 to the Department for those costs. The claim is derived from an estimate prepared by her son-in-law, which lists the costs to move a double-wide mobile home from Smithfield, North Carolina, to her lot in the North Pointe development in Little River, South Carolina; to set up the mobile home and hook up its utilities; and to construct a brick foundation, three decks, and a cement driveway for the home.

8. Mr. Imas was employed as a real estate representative for Earth Tech, Inc., a contractor hired by the Department to provide relocation advisory services related to the North Myrtle Beach Connector project. In providing these services, Mr. Imas was responsible for advising Petitioner and other displaced individuals as to what benefits were available to them under the federal regulations and for assisting them in making claims for those benefits. In his advisory role, Mr. Imas did not have the authority to grant or promise benefits on behalf of the Department. And, in particular, he had no authority to bind the Department to pay benefits beyond those that are authorized by state and federal law. Further, it was apparent from the course of his dealings with Petitioner, in which he requested approval for benefits from the Department and awaited the Department’s decision on his requests, that he did not hold himself out to Petitioner as possessing such authority. Therefore, Petitioner could not have justifiably relied upon any statement made by Mr. Imas as an assurance that the Department would pay Petitioner benefits for moving a new mobile from North Carolina to Myrtle Beach and setting it up.

9. In sum, while Mr. Imas did request benefits from the Department on behalf of Petitioner for moving a new mobile home from North Carolina, it is evident from both the testimony of Petitioner’s witness, Sue Hart, and the contemporaneous communication log kept by Mr. Imas that no affirmative decision concerning those benefits was ever conveyed to Petitioner.

CONCLUSIONS OF LAW

Based upon the foregoing Findings of Fact, I conclude the following as a matter of law:

Jurisdiction and General Principles

1. This Court has jurisdiction over this matter pursuant to 25A S.C. Code Ann. Regs. 63-322(D) (Supp. 2005), S.C. Code Ann. § 1-23-600(B) (Supp. 2005), and S.C. Code Ann. §§ 1-23-310 et seq. (2005).

2. Under S.C. Code Ann. § 28-11-10 (1991), the Department is required to make relocation payments and assistance available to persons displaced by its projects pursuant to the requirements for such benefits set forth in federal law. These federal requirements for relocation assistance benefits are found at 49 C.F.R. Part 24 (2005).

3. In this matter, Petitioner bears the burden of establishing, by a preponderance of the evidence, that she is entitled to the additional relocation assistance benefits she seeks. See Leventis v. S.C. Dep’t of Health & Envtl. Control, 340 S.C. 118, 132-33, 530 S.E.2d 643, 651 (Ct. App. 2000) (holding that the burden of proof in administrative proceedings generally rests upon the party asserting the affirmative of an issue); see also 73A C.J.S. Public Administrative Law and Procedure § 128, at 35 (1983) (“In administrative proceedings, the general rule is that an applicant for relief, benefits, or a privilege has the burden of proof, and the burden of proof rests upon one who files a claim with an administrative agency to establish that required conditions of eligibility have been met.”).

4. The weight and credibility assigned to evidence presented at the hearing of a matter is within the province of the trier of fact. See S.C. Cable Television Ass’n v. S. Bell Tel. & Tel. Co., 308 S.C. 216, 222, 417 S.E.2d 586, 589 (1992); see also Doe v. Doe, 324 S.C. 492, 502, 478 S.E.2d 854, 859 (Ct. App. 1996) (holding that a trial judge, when acting as finder of fact, “has the authority to determine the weight and credibility of the evidence before him”). Furthermore, a trial judge who observes a witness is in the best position to judge the witness’s demeanor and veracity and to evaluate the credibility of his testimony. See, e.g., Woodall v. Woodall, 322 S.C. 7, 10, 471 S.E.2d 154, 157 (1996); Wallace v. Milliken & Co., 300 S.C. 553, 556, 389 S.E.2d 448, 450 (Ct. App. 1990).

Payments for the Purchase and/or Relocation of Petitioner’s Mobile Home

5. Under 49 C.F.R. § 24.301(a)(2) (2005), a “non-occupant owner” of a mobile home that is relocated is eligible for reimbursement for the actual costs of moving the mobile home. Further, pursuant to 49 C.F.R. § 24.301(c) (2005), a person who is required to move personal property from a relocated mobile home is eligible to be reimbursed for his or her “actual, reasonable and necessary moving expenses” incurred in moving the personal property from the home.

6. In the case at hand, the Department provided Petitioner with relocation assistance benefits under both of these provisions. First, the Department paid Petitioner $14,461 to acquire her mobile home. The payment was made pursuant to a pilot program, which, as noted above, authorized the Department to purchase certain mobile homes that could not easily be relocated, rather than merely providing reimbursement for the costs incurred in moving such mobile homes to new locations. Second, the Department paid Petitioner $1,350 to reimburse her for the costs incurred in moving her personal property from the mobile home. Taken together, these two payments satisfied the Department’s obligation to reimburse Petitioner for certain moving and related expenses under 49 C.F.R. § 24.301.

Petitioner’s Eligibility for Replacement Housing Benefits

7. While Petitioner does not dispute that the Department’s payments adequately compensated her for the value of the mobile home and for the cost of moving her personal property, she further contends that she should receive additional relocation benefits from the Department to compensate her for the cost of moving a new mobile home to the Myrtle Beach area. In essence, Petitioner seeks replacement housing benefits.

8. Pursuant to 49 C.F.R. § 24.502(a) (2005), an “owner-occupant” that is displaced from a mobile home by a project is entitled to a replacement housing payment if, among other things, “[t]he person occupied the mobile home on the displacement site for at least 180 days immediately before . . . [t]he initiation of negotiations to acquire the mobile home site if the mobile home is personal property, but the person owns the mobile home site.” Id. (emphasis added). The general provisions related to replacement housing payments similarly require that a displaced person can only receive a replacement housing payment if the person “[h]as actually owned and occupied the displacement dwelling for not less than 180 days prior to the initiation of negotiations.” See 49 C.F.R. § 24.401(a)(1) (2005) (emphasis added). A sharply reduced replacement housing payment is available under both the mobile-home-specific regulations and the general replacement housing provisions, but this reduced payment is still only available to persons who have occupied the dwelling in question for at least 90 days prior to the initiation of negotiations. See 49 C.F.R. §§ 24.402(a)(1) (2005), 24.503(a) (2005).

9. In the case at hand, while Petitioner owned the mobile home during the relevant period prior to the initiation of negotiations for the purchase of her property, she did not actually occupy the home for either a 180-day period or a 90-day period prior to those negotiations. That is, Petitioner did not make her primary residence at her Myrtle Beach mobile home prior to the institution of negotiations with the Department.[2] Instead, she used the home only occasionally, as a vacation retreat. Therefore, although Petitioner is a “displaced person” entitled to certain relocation assistance benefits to cover the costs of moving her personal property, see 49 C.F.R. § 24.2(9) (2005), she is not a displaced “occupant” of property who has been dislocated from her primary residence and who would be entitled to replacement housing payments under the federal regulations, see 49 C.F.R. §§ 24.401, 24.402, 24.502, 24.503.

Promissory Estoppel

10. Further, Petitioner contends that the Department should compensate her for the costs of relocating her new mobile home to Myrtle Beach, because Steve Imas, a consultant providing relocation advisory services on behalf of the Department, had promised her that she would receive such benefits. However, as noted above, the evidence does not support Petitioner’s contention that such a promise was made. Rather, at best, the evidence indicates that there was some confusion or uncertainty as to whether any additional benefits could be paid to Petitioner and that Mr. Imas merely sought to assist her in seeking any benefits that might be available to her.

11. Moreover, to the extent Petitioner’s contentions raise a promissory estoppel claim, it is generally recognized that, while “a governmental body is not immune from the estoppel doctrine where its officers or agents act within the proper scope of their authority . . . [,] ‘[t]he public cannot be estopped . . . by the unauthorized or erroneous conduct or statements of its officers or agents.” Serv. Mgmt., Inc. v. State Health and Human Servs. Fin. Comm’n, 298 S.C. 234, 238, 379 S.E.2d 442, 444 (Ct. App. 1989) (quoting S.C. Coastal Council v. Vogel, 292 S.C. 449, 453, 357 S.E.2d 187, 189 (Ct. App. 1987)) (second omission in original). In the case at hand, Mr. Imas did not have the actual, or even apparent, authority to bind the Department to pay Petitioner relocation assistance benefits to move and set-up her new mobile home—benefits to which she is not entitled under the applicable federal regulations. Accordingly, Petitioner’s promissory estoppel claim must fail.

ORDER

Based upon the Findings of Fact and Conclusions of Law stated above,

IT IS HEREBY ORDERED that the Department’s decision to deny Petitioner’s request for additional relocation assistance benefits beyond the $15,811 previously awarded by the Department is proper and must be SUSTAINED.

AND IT IS SO ORDERED.

______________________________

JOHN D. GEATHERS

Administrative Law Judge

1205 Pendleton Street, Suite 224

Columbia, South Carolina 29201-3731

January 13, 2006

Columbia, South Carolina



[1] Smithfield is located approximately 150 miles away from the Persimmon Ridge Road property.

[2] While the term “occupy” as related to real property can mean merely having legal possession or ownership of property, the federal relocation assistance regulations use the term “occupy” in its more common sense, meaning to actually reside upon the property in question. See Black’s Law Dictionary 1106 (7th ed. 1999) (defining “occupancy” to include both the common meaning, referring to the “actual possession, residence, or tenancy, esp. of a dwelling or land,” and the more technical meaning related to taking legal ownership over unowned property); see also Reasor v. City of Norfolk, 606 F. Supp. 788, 791 (E.D. Va. 1984) (distinguishing between mere ownership of property and actual occupancy of property for the purposes of federal relocation assistance benefits); City of Mishawaka v. Knights of Columbus Home Ass’n of Mishawaka, 396 N.E.2d 948, 949-50 (Ind. Ct. App. 1979) (also distinguishing between the mere ownership of real estate and the actual occupancy of such real estate for the purpose of determining eligibility for relocation assistance benefits); cf. 49 C.F.R. § 24.2(10) (2005) (defining a “dwelling” under the federal relocation regulations as “the place of permanent or customary and usual residence of a person, according to local custom or law,” i.e., as one’s primary residence or domicile).


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